Filed 10/14/20 P. v. Klein CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

ARTHUR ERROL KLEIN,

Defendant and Appellant.

 B295039

 (Los Angeles County

 Super. Ct. No. KA115987)

Appeal from a judgment of the Superior Court of 

Los Angeles County, Thomas Falls, Judge. Affirmed and 

remanded with directions.

Joshua L. Siegel, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Acting 

Senior Assistant Attorney General, Paul M. Roadarmel, Jr. and 

William N. Frank, Deputy Attorneys General, for Plaintiff and 

Respondent.
2

Arthur Errol Klein appeals from the judgment entered 

after a jury convicted him of the second degree murder of Martin 

Razo, whom Klein had struck and killed while driving under the 

influence of alcohol. Klein, sentenced to an indeterminate state 

prison term of 15 years to life, contends his conviction was not 

supported by substantial evidence. He also asserts the trial court 

improperly instructed the jury on the issues of malice and 

causation and erred by failing to instruct on vehicular 

manslaughter as a lesser included offense of murder. We affirm

but remand to give Klein an opportunity to request a hearing on,

and present evidence concerning, his ability to pay the fine, fee 

and assessment the court imposed.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Information

Klein was charged by information with second degree 

murder (Pen. Code, § 187)1 (count 1) and gross vehicular 

manslaughter while intoxicated (§ 191.5, subd. (a)) (count 2). As 

to count 2, it was specially alleged Klein had suffered two prior 

convictions within the meaning of section 191.5, subdivision (d). 

Klein pleaded not guilty and denied the special allegations. 

2. The Evidence at Trial

On the afternoon of August 9, 2017 a teenager riding his 

bicycle north on Underhill Drive in Glendora saw a black truck 

driving toward him. As the truck rounded a broad curve in the 

road, it swerved suddenly to avoid a white utility truck parked on 

the side of the road and struck Razo, who had been standing next 

1 Statutory references are to this code unless otherwise 

stated.
3

to his truck replacing his landscaping tools. Klein, the driver of

the black truck, stopped and went over to Razo, who was lying on 

the ground bleeding from a serious head wound and other 

injuries. A neighbor, a nurse, came from a nearby house, called 

the emergency hotline and tried to help Razo. Klein sat on the 

side of the street with his head in his hands, visibly distraught. 

Police and paramedics arrived several minutes later, but Razo 

was nonresponsive and no longer had a pulse. 

Glendora Police Officer Josh Price spoke to Klein, who said 

he had been on his way home and had not seen Razo standing 

next to his truck. Price smelled alcohol on Klein’s breath and 

initiated a field sobriety investigation. Although Klein performed 

fairly well on some of the field sobriety tests, his gaze

demonstrated significant horizontal and vertical nystagmus. 

After first denying he had been drinking that day, Klein later 

admitted to having consumed a couple of rum drinks and a beer 

during the hours before the incident.

2 About 30 minutes after the 

accident a preliminary alcohol screening of Klein’s blood alcohol 

content (BAC) measured .22 percent. Klein admitted to feeling 

the effects of the alcohol. About two hours after the accident a 

2 Based on interviews with Klein at the police station,

receipts found in his possession and surveillance video recordings 

at the store where he bought alcohol, the police were able to 

construct a timeline of Klein’s alcohol consumption. He drank

heavily the day before and again during the early morning hours

of August 9, 2017. After waking that morning, he drank 

24 ounces of ale and later purchased alcoholic beverages while he 

drove between Pasadena, where he was employed, and his home 

in Glendora. He drank two rum cocktails between 11:00 a.m. and 

noon and another two around 1:00 p.m., as well as, possibly,

another 24 ounces of ale. 
4

repeated screening measured Klein’s BAC as .20 percent. After 

six hours Klein’s blood sample yielded a BAC of .14 percent. A 

senior criminalist from the Los Angeles County Sheriff’s 

Department opined that, based on Klein’s drinking pattern, a 

BAC reading of .20 percent two hours after the accident meant 

that someone of Klein’s weight would have had a BAC of as much 

as .25 percent at the time of the accident. People with blood 

alcohol content levels of .08 percent or higher are impaired to 

drive a vehicle safely. 

Glendora Police Officer William Turnley testified as a 

traffic collision expert and opined that Klein’s intoxication caused 

him to strike Razo. Turnley saw no evidence Klein had been 

speeding but concluded Klein’s truck struck Razo after Klein 

made an unsafe turning movement.

3

At the police station Klein told an officer he had previously 

been convicted of driving under the influence of alcohol and that, 

looking back, he must have been too intoxicated to drive safely at 

the time of the collision. Court records showed Klein had twice 

been convicted of driving under the influence of alcohol and had 

received several Watson advisements he could be convicted of 

murder if he killed someone while driving under the influence of 

alcohol. (See People v. Watson (1981) 30 Cal.3d 290, 296 

3 Officer Turnley also testified he had inspected the truck and 

found it free from mechanical defects. Klein told officers he was 

familiar with the curve on Underhill Drive and sometimes, for 

fun, tried to take the curve as widely as possible in a way that 

allowed his turn signal to stay on. As Klein neared 20 feet of 

Razo’s truck, he swerved five feet to his left, leaving 30-foot-long 

tire friction marks starting only a short distance from where Razo 

stood. 
5

(Watson).)4 On February 24, 2006 Klein had pleaded guilty to 

driving under the influence of alcohol and acknowledged with his 

initials that he had been given the following advisement: 

“[B]eing under the influence of alcohol or drugs, or both, impairs 

my ability to safely operate a motor vehicle. Therefore, it is 

extremely dangerous to human life to drive while under the 

influence of alcohol or drugs, or both. If I continue to drive while 

under the influence of alcohol or drugs, or both, and, as a result of 

that driving, someone is killed, I can be charged with murder.” 

On June 28, 2010 Klein pleaded no contest to driving under the 

influence of alcohol (after turning left against a red light and 

colliding with another vehicle) and was given the same Watson

advisement. On January 29, 2011 Klein attended a Mothers 

Against Drunk Diving program in which he was again informed 

about the dangers of drinking and driving and told that, if he 

continued to drive while intoxicated and, as a result, killed 

someone, he could be charged with murder. 

Klein did not testify and presented no other defense.

3. The Verdict and Sentencing

After deliberating for less than two hours, the presiding 

juror sent a request for another copy of the verdict form finding 

Klein guilty and, within half an hour, a note asking whether the 

jury needed to reach a verdict on count 2 if it had reached a 

verdict on count 1. The parties agreed to hear the verdict on 

count 1 before the jury reached a verdict on count 2. After the 

4 A Watson advisement is given to defendants convicted of 

driving under the influence of alcohol or drugs pursuant to 

Vehicle Code section 23593.
6

jury’s verdict of guilty on count 1 was read, the court granted the 

prosecutor’s motion to dismiss count 2. 

The court sentenced Klein to an indeterminate state prison 

term of 15 years to life and ordered him to pay a $40 court 

operations assessment (Pen. Code, § 1465.8, subd. (a)(1)), a 

$30 court facilities assessment fee (Gov. Code, § 70373) and a 

$300 restitution fine (Pen. Code, § 1202.4, subd. (b)). 

DISCUSSION

1. Substantial Evidence Supports Klein’s Conviction for 

Second Degree Murder

Klein contends the evidence at trial was insufficient to 

prove he acted with implied malice when he drove his truck while 

intoxicated and killed Razo.5 He argues there was no evidence he 

5 In considering a claim of insufficient evidence in a criminal 

case, “we review the whole record to determine whether any

rational trier of fact could have found the essential elements of 

the crime . . . beyond a reasonable doubt. The record must 

disclose substantial evidence to support the verdict—i.e., 

evidence that is reasonable, credible, and of solid value—such 

that a reasonable trier of fact could find the defendant guilty 

beyond a reasonable doubt. In applying this test, we review the 

evidence in the light most favorable to the prosecution and 

presume in support of the judgment the existence of every fact 

the jury could reasonably have deduced from the evidence. 

Conflicts and even testimony [that] is subject to justifiable 

suspicion do not justify the reversal of a judgment, for it is the 

exclusive province of the trial judge or jury to determine the 

credibility of a witness and the truth or falsity of the facts upon 

which a determination depends. We resolve neither credibility 

issues nor evidentiary conflicts; we look for substantial evidence. 

A reversal for insufficient evidence is unwarranted unless it 

appears that upon no hypothesis whatever is there sufficient 
7

drove in a highly dangerous manner, displayed outward signs of 

intoxication or actually knew he was too impaired to drive safely. 

To be guilty of murder, a defendant must kill “with malice 

aforethought.” (§ 187.) “[M]alice may be express or implied.” 

(§ 188.) It is express when the defendant “manifest[s] a 

deliberate intention to unlawfully take away the life of a fellow 

creature.” (§ 188, subd. (a)(1).) Measured by a subjective, rather 

than objective, standard, “malice may be implied when a person,

knowing that his conduct endangers the life of another,

nonetheless acts deliberately with conscious disregard for life.”

(Watson, supra, 30 Cal.3d at p. 296, italics omitted; accord, People 

v. Knoller (2007) 41 Cal.4th 139, 143.) So long as these elements 

are met, a defendant who kills someone as a result of driving 

under the influence of alcohol or drugs may be convicted of 

murder under an implied malice theory. (See Watson, at p. 298;

People v. Wolfe (2018) 20 Cal.App.5th 673, 681 (Wolfe) [“[m]alice 

may be implied when a person willfully drives under the 

influence of alcohol”].)

Klein reminds us the Watson Court cautioned that a charge 

of second degree murder should not become routine for intoxicated 

drivers who cause the death of another person: “[W]e neither 

contemplate nor encourage the routine charging of second degree 

murder in vehicular homicide cases.” (Watson, supra, 30 Cal.3d at 

p. 301.) As described in Wolfe, supra, 20 Cal.App.5th at pages 682-

683, “Generally, [courts] ‘have relied on some or all of the following 

substantial evidence to support the jury’s verdict.” (People v. 

Penunuri (2018) 5 Cal.5th 126, 142, citations and internal 

quotation marks omitted; accord, People v. Dalton (2019) 

7 Cal.5th 166, 243-244; People v. Zamudio (2008) 43 Cal.4th 327, 

357.)
8

factors’ that were present in Watson: ‘(1) blood-alcohol level above 

the .08 percent legal limit; (2) a predrinking intent to drive; 

(3) knowledge of the hazards of driving while intoxicated; and 

(4) highly dangerous driving.’” 

Based on this language from Watson and Wolfe and the facts 

involved in a number of prior cases, Klein suggests a charge of 

second degree murder should be reserved for those who are 

observed to have violated traffic laws in a demonstrably dangerous 

manner in the moments before an accident occurs. For instance, 

the Watson Court noted that, just before colliding with the victims’ 

car, the defendant, who had been drinking at a bar, returned to his 

car, drove at excessive speeds, ran a red light and narrowly 

avoided hitting another car. Rather than stop, the driver resumed 

his excessive speed before colliding with the victims’ car. (Watson, 

supra, 30 Cal.3d at pp. 300-301.) Likewise, in People v. McCarnes 

(1986) 179 Cal.App.3d 525 the defendant passed several cars at a 

high rate of speed by driving on the wrong side of the road before 

he hit the decedents’ vehicle head-on. (Id. at p. 533; see also Wolfe,

supra, 20 Cal.App.5th at p. 679 [defendant failed to negotiate a 

curve, swerved out of her lane and made no attempt to stop before 

hitting a pedestrian standing in the gutter on the other side of the 

street]; People v. Johnigan (2011) 196 Cal.App.4th 1084, 1087-1092 

[defendant drove home from a bar ignoring friends’ warnings and 

offers to give her a ride; when stopped by police for blocking traffic,

she drove off at high speed and swerved across two lanes of traffic 

before colliding with another car]; People v. Ferguson (2011)

194 Cal.App.4th 1070, 1074-1075 [defendant driving 75 m.p.h. 

rear-ended car stopped at a red light, killing one of the occupants]; 

People v. Moore (2010) 187 Cal.App.4th 937, 939-941 [defendant 

drove at more than twice the posted speed limit, repeatedly 
9

swerving into oncoming traffic before running a red light and 

colliding with the decedent’s car]; People v. Autry (1995) 

37 Cal.App.4th 351, 356-359 [defendant ignored a warning sign 

indicating a lane closure, veered into the median and killed 

two construction workers].) Klein contends, because there is no 

evidence he was speeding or violating traffic laws, the jury could 

not have reasonably found he acted with malice.

The rule Klein describes and asks us to follow, however, is 

not supported by the governing case law. Thus, after identifying 

the four factors from Watson, the Wolfe court explained, “However, 

‘nowhere does the opinion in Watson state that all of the factors 

present in that case are necessary to a finding of second degree 

murder. Rather, the opinion states that the presence of those 

factors was sufficient in that case.’” (Wolfe, supra, 20 Cal.App.5th 

at pp. 682-683; accord, People v. Munoz (2019) 31 Cal.App.5th 143, 

152.) In other words, a jury is entitled to consider all of the 

available facts in evaluating whether a defendant acted with 

implied malice in a particular case. 

On appeal Klein essentially ignores the evidence the jury 

was entitled to consider in finding he had acted with implied 

malice. Having been convicted twice of driving under the 

influence and having received at least three Watson admonitions, 

Klein was well-acquainted with the dangers associated with 

drinking and driving. He was informed repeatedly that driving 

while impaired (that is, with a BAC of .08 percent or more) was 

dangerous and that he could be convicted of murder if his 

impaired driving caused someone to die. He acknowledged to 

officers that driving while intoxicated was dangerous, a fact he 

could hardly deny. 
10

Klein also knew on August 9, 2017 when he repeatedly 

bought and consumed alcoholic beverages in his car that he 

would be driving a substantial distance after drinking. Because 

he could not drink at home (his parents disliked his drinking), he 

chose instead to do so while driving around for several hours. He 

told officers he had been having “a bad day,” which the jury 

reasonably could understand as motivation (or self-serving 

justification) for him to drink heavily while at the wheel. He 

drank so heavily that at 2:00 p.m., the time he hit Razo, his blood 

alcohol content was as high as .25 percent, more than three times 

the legal limit of .08 percent. When interviewed by officers after 

the accident, he was unable to remember his actions that day, 

asserting at one point he had gone hiking near Pasadena but 

then contradicting himself moments later. He also said he had 

driven up Glendora Mountain Road but had then driven back

down rather than stop and allow himself to recover. Nonetheless, 

he was sufficiently alert to deny drinking alcohol in his first 

conversations with officers, although, when pressed, he conceded 

he had been drinking and sought to minimize its effect on him.

As the trial court pointed out, none of this evidence 

indicated Klein intended to harm another person. Like many 

such cases, the outcome is sad for all. But the fact remains the 

jury heard testimony that depicted an extremely intoxicated man,

who knew from prior experience that he should not be driving 

while in that condition because of the danger to life engendered 

by such conduct, yet deliberately chose to spend much of the day 

doing exactly that, exhibiting conscious disregard for life. Under 

the totality of the circumstances, the jury’s verdict was supported 

by substantial evidence of implied malice.
11

2. The Trial Court Did Not Err in Instructing the Jury on 

Implied Malice

a. The second degree murder instruction

The trial court instructed the jury on the elements of 

second degree murder with CALJIC No. 8.31, which provides,

“Murder of the second degree is the unlawful killing of a human 

being when: [¶] 1. The killing resulted from an intentional act, 

[¶] 2. The natural consequences of the act are dangerous to 

human life, and [¶] 3. The act was deliberately performed with 

knowledge of the danger to, and with conscious disregard for, 

human life. [¶] When the killing is the direct result of such an 

act, it is not necessary to prove that the defendant intended that 

the act would result in the death of a human being.” The court 

did not instruct the jury with CALJIC Nos. 8.10, which identifies 

“malice aforethought” as an element of murder, or 8.11, which 

defines express and implied malice and explains that malice

aforethought means either express or implied malice.

6

6 CALJIC No. 8.10 states, in part, “Every person who 

unlawfully kills a human being . . . with malice aforethought . . . 

is guilty of the crime of murder in violation of Penal Code § 187.”

CALJIC No. 8.11 provides, “‘Malice’ may be either express 

or implied. [¶] Malice is express when there is manifested an 

intention unlawfully to kill a human being. [¶] Malice is implied 

when: [¶] 1. The killing resulted from an intentional act; [¶] 

2. The natural consequences of the act are dangerous to human 

life; and [¶] 3. The act was deliberately performed with 

knowledge of the danger to, and with conscious disregard for, 

human life. [¶] When it is shown that a killing resulted from the 

intentional doing of an act with express or implied malice, no 

other mental state need be shown to establish the mental state of 

malice aforethought. [¶] The mental state constituting malice 
12

Although Klein’s defense counsel did not object to the 

malice instruction, on appeal Klein argues the omission of 

CALJIC Nos. 8.10 and 8.11 resulted in the jury receiving an 

incomplete and inaccurate instruction on an element of second 

degree murder that improperly relieved the People of their

burden of proof.7 

aforethought does not necessarily require any ill will or hatred of 

the person killed. [¶] The word ‘aforethought’ does not imply 

deliberation or the lapse of considerable time. It only means that 

the required mental state must precede rather than follow the 

act.”

7 The Attorney General contends Klein forfeited the issue of 

instructional error by failing to object to the jury instruction at 

trial. The Attorney General is correct that, nominally, a

defendant who fails to object to a proposed jury instruction

forfeits the right to challenge that instruction on appeal. (People

v. Mitchell (2019) 7 Cal.5th 561, 579; People v. Bolin (1998)

18 Cal.4th 297, 326.) However, an appellate court may review

any claim of instructional error that affects a defendant’s

substantial rights without an objection in the trial court. (§ 1259

[“appellate court may also review any instruction given, . . . even

though no objection was made thereto in the lower court, if the

substantial rights of the defendant were affected thereby”];

People v. Hudson (2006) 38 Cal.4th 1002, 1011-1012 [failure to 

object to instruction does not forfeit issue on appeal when alleged 

error concerns elements of offense]; People v. Smithey (1999) 

20 Cal.4th 936, 976, fn. 7 [defendant did not forfeit right to object 

to instruction alleged to be incorrect statement of law and given 

in violation of due process].) Of course, “[w]e can only determine 

if [a] defendant[’s] substantial rights were affected by deciding 

whether the instruction was given in error and, if so, whether the 

error was prejudicial.” (People v. Medina (2019) 33 Cal.App.5th 

146, 154, fn. 7; accord, People v. Stringer (2019) 41 Cal.App.5th 

974, 981, fn. 2].) That is, if Klein’s claim has merit, it has not 
13

b. Standard of review

A trial court in a criminal case has a duty to instruct on

general principles of law applicable to the case (People v. Mitchell

(2019) 7 Cal.5th 561, 586), that is, “‘“‘those principles closely and

openly connected with the facts before the court, and which are

necessary for the jury’s understanding of the case.’”’” (People v.

Valdez (2004) 32 Cal.4th 73, 115; accord, People v. Blacksher

(2011) 52 Cal.4th 769, 845-846.) A claim of instructional error is

reviewed de novo. (Mitchell, at p. 579; People v. Cole (2004)

33 Cal.4th 1158, 1210.) An appellate court reviews the wording

of a jury instruction de novo and assesses whether the instruction

accurately states the law. (Mitchell, at p.579; People v. Posey

(2004) 32 Cal.4th 193, 218.) “In reviewing a claim of

instructional error, the court must consider whether there is a

reasonable likelihood that the trial court’s instructions caused

the jury to misapply the law in violation of the Constitution.

[Citations.] The challenged instruction is viewed ‘in the context

of the instructions as a whole and the trial record to determine

whether there is a reasonable likelihood the jury applied the

instruction in an impermissible manner.’” (Mitchell, at p. 579;

accord, People v. Houston (2012) 54 Cal.4th 1186, 1229.)

c. The omission of the terms “malice aforethought” and

“implied malice” did not impair the accuracy of the

court’s instruction

While Klein acknowledges the Supreme Court in People v.

Nieto Benitez (1992) 4 Cal.4th 91, 111, held CALJIC No. 8.31

correctly stated the elements of second degree murder, including

been forfeited. We therefore necessarily review the merits of his 

contention there was instructional error.
14

the definition of implied malice, he contends, if, as here, the jury

was not instructed that “malice aforethought,” in general, and

“implied malice,” in particular, is an element of second degree

murder, then the guilty verdict does not necessarily show the

prosecution proved all the elements of the charge. Not

surprisingly, Klein cites no authority for this proposition, relying

on general statements regarding the need to instruct on all

elements of the crime from People v. Merritt (2017) 2 Cal.5th 819,

a robbery case in which the trial court instructed only on the

mental state required for robbery and not its other elements,

including that the defendant had used force or fear to take 

property from the other person or his or her immediate presence. 

(Id. at p. 824.)8 

CALJIC No. 8.31 includes verbatim the definition of 

implied malice contained in CALJIC No. 8.11. (See People v.

Dellinger (1989) 49 Cal.3d 1212, 1221-1222 [approving then

newly revised CALJIC Nos. 8.11 and 8.31, and referring to the

two instructions as including, in the singular, a correct definition

of the term implied malice].) Because the murder charge against 

Klein was not tried on a theory of express malice, omitting a 

reference to that term and its definition, the other part of 

CALJIC No. 8.11, did not impair the accuracy or completeness of 

8 The Merritt Court ultimately found the instructional error 

harmless beyond a reasonable doubt because both the prosecutor 

and defense counsel discussed all the elements of robbery in their 

closing arguments, the two victims testified, the crimes had been 

captured on videotape and the defense conceded the robberies 

had taken place but argued the People had failed to prove beyond 

a reasonable doubt that defendant was the perpetrator. (People 

v. Merritt, supra, 2 Cal.5th at p. 832.)
15

the instructions in this case. Nor did the court’s use of the full 

definition of “implied malice” as set forth in CALJIC Nos. 8.11 

and 8.31 without using that term itself permit the People to 

obtain a guilty verdict on second degree murder without proving

beyond a reasonable doubt the mental state required for the

crime.9 Similarly, omitting the arcane legal term “malice 

aforethought” and the three steps necessary for the jury to 

understand the requisite mental state for second degree murder 

as charged in this case (malice aforethought means implied 

malice, which, in turn, means the definition provided in CALJIC 

No. 8.31) did not in any way reduce the prosecutor’s burden of 

proof.10 

9 Although the court’s instructions did not include the term 

“implied malice,” at the outset of her summation, the prosecutor 

told the jury, “And this is an implied malice murder,” and then 

reviewed the elements of the crime as set forth in CALJIC 

No. 8.31. (See generally People v. Hajek and Vo (2014) 58 Cal.4th

1144, 1220 [“‘any theoretical possibility of confusion [in the jury

instructions may be] diminished by the parties’ closing

argument’”], disapproved on another ground in People v. Rangel

(2016) 62 Cal.4th 1192, 1216.)

10 We agree with Klein that it would be better practice for 

superior court judges trying criminal cases to use CALCRIM 

pattern instructions (see Cal. Rules of Court, rule 2.1050(e) 

[“[u]se of the Judicial Council instructions is strongly 

encouraged”]), but it is not error to persist in using CALJIC 

instructions that adequately cover the pertinent legal principles. 

(See People v. Cornejo (2016) 3 Cal.App.5th 36, 60.) 
16

3. The Trial Court Did Not Commit Prejudicial Error in 

Instructing the Jury on Causation

As discussed, using CALJIC No. 8.31 the court instructed 

the jury, for Klein to be found guilty of second degree murder, the 

People had to prove the natural consequences of Klein’s driving 

while intoxicated were dangerous to human life and Razo’s death 

was the “direct result” of Klein’s intentional and unlawful act of 

driving while under the influence of alcohol. Klein contends that 

definition was insufficient on the facts of this case, which he 

asserts included evidence Razo’s death was the result of his own 

negligence, not Klein’s intoxicated driving. To have been 

accurate and complete, Klein argues, the court, sua sponte, 

should also have instructed with CALJIC No. 8.55, which states, 

“To constitute murder . . . there must be, in addition to the death 

of a human being, an unlawful act which was the cause of that 

death”; and No. 3.41, which states, “When the conduct of two or 

more persons contributes concurrently as a cause of the [death], 

the conduct of each is a cause of the [death] if that conduct was 

also a substantial factor contributing to the result . . . . [¶] If you 

find that the defendant’s conduct was a cause of [death] . . . , it is 

no defense that the conduct of some other person, even the 

deceased person, contributed to the [death].”11 Alternatively, 

Klein continues, if the court had used CALCRIM No. 520 to 

11 In the course of defining negligence for purpose of the 

lesser included offenses to the charge in count 2 of gross 

vehicular manslaughter while intoxicated, the court instructed 

the jury with CALJIC No. 8.56, which states, “It is not a defense 

to a criminal charge that the deceased or some other person was 

guilty of negligence, which was a contributory cause of the death 

involved in the case.” 
17

define implied malice second degree murder, the jury would have 

been properly instructed that “[t]here may be more than one

cause of death. An act causes death only if it is a substantial

factor in causing the death. A substantial factor is more than a

trivial or remote factor. However, it does not need to be the only

factor that causes the death.”

12

According to Klein, there was evidence Razo was negligent 

to at least some extent. He was standing in the street, wearing 

clothing that (as Klein interprets it) matched the color of his 

truck, without any safety cones or other warning signals around 

him. Because of the sun’s position (again, as Klein interprets the 

evidence), it would have been difficult for even a reasonably 

careful driver to have seen Razo.13 Accordingly, a properly 

instructed jury might have found Klein’s drunk driving was only 

a remote or trivial factor in causing Razo’s death (in the language 

of CALCRIM No. 520); but this jury, having not been instructed 

on the substantial factor requirement of causation, did not have 

that option, incorrectly having been told, in effect, that but for 

causation was adequate to prove murder. (See People v. Pike

(1988) 197 Cal.App.3d 732, 748 [“[o]nly when the defendant’s 

grossly negligent conduct is a remote cause, and the negligent or 

reckless conduct of the victim or other party is the sole proximate 

cause of the death, will the defendant be relieved of culpability”].)

12 Klein notes that CALCRIM No. 620, Causation: Special 

Issues, for use in homicide cases, includes the same substantial 

factor language as CALCRIM No. 520.

13 In reviewing this evidence in closing argument, Klein’s 

counsel insisted, “Now, we’re not saying at all that Mr. Razo is at 

fault here. We’re just pointing out where he was and other 

circumstances that could have avoided the collision.” 
18

Neither CAJIC No. 8.55 nor No. 3.41 was required in this 

case. CALJIC No. 8.55, instructing that the defendant’s unlawful 

act must have caused the death, would have been redundant; 

CALJIC No. 8.31 adequately instructed that Razo’s death had to 

be the direct result of Klein’s unlawful driving. As discussed, the 

Supreme Court in People v. Nieto Benitez, supra, 4 Cal.4th at 

page 111 approved CALJIC No. 8.31 as properly detailing the 

necessary elements for implied malice murder.

CALJIC No. 3.41 was also unnecessary. As the use note 

explains, “CALJIC 3.41 should be given where the evidence 

places in issue two or more causes of the result of the crime. [¶] 

Where cause is in issue, the court must instruct sua sponte on 

that subject.”

14 (Use Note to CALJIC No. 3.41 (2020-2 update).) 

Simply put, cause was not an issue in this case, only Klein’s 

degree of culpability. There was no evidence, let alone 

substantial evidence, Klein’s driving while intoxicated was not a 

substantial factor in Razo’s death.

Photographs admitted into evidence showed the accident 

occurred on a relatively wide residential street. The undisputed 

evidence established that Razo’s truck was lawfully parked

within 18 inches of the curb. Razo was standing within two feet 

14 Similarly, the bench note to CALCRIM No. 520 indicates 

the additional instruction Klein contends was necessary is 

properly given only when there is evidence of multiple causes of 

the victim’s death: “If the evidence indicates that there was only 

one cause of death, the court should give the ‘direct, natural, and 

probable’ language in the first bracketed paragraph on causation. 

If there is evidence of multiple causes of death, the court should 

also give the ‘substantial factor’ instruction and definition in the 

second bracketed causation paragraph.” (Bench Note to 

CALCRIM No. 520 (2020 ed.) p. 239.)
19

of his truck, putting tools back into it, when Klein, making an

unsafe turn “for fun,” swerved left about five feet as he 

approached Razo. And while Razo wore a white shirt, which 

Klein argued made him difficult to see in the afternoon sun, Razo 

was also wearing gray pants and a straw hat, which contrasted 

with the white color of his truck. Indeed, in closing argument 

Klein’s counsel did not dispute the issue of causation, urging the 

jury to find his client guilty only of vehicular manslaughter while 

intoxicated, a lesser included offense to count 2: “He committed a 

crime. He committed the crime of vehicular manslaughter 

without gross negligence but while he was intoxicated. That is 

the crime he certainly committed. Everything above that was not 

what he did, has not been proven beyond a reasonable doubt.”15

Klein’s final causation argument—that it was error to 

include CALJIC No. 8.56, the instruction stating it is not a 

defense to a criminal charge that the deceased or some other 

person was guilty of negligence that was a contributory cause of 

death—is similarly without merit. Not only is CALJIC No. 8.56 

an accurate statement of the law (People v. Brady (2005) 

129 Cal.App.4th 1314, 1328; People v. Pike, supra, 

197 Cal.App.3d at p. 748), but also the language Klein criticizes 

is repeated in substantially the same form in CALJIC No. 3.41

(“it is no defense that the conduct of some other person, even the 

15 Causation, of course, is a necessary element of vehicular 

manslaughter while intoxicated, ordinary negligence (§ 191.5, 

subd. (b)), gross vehicular manslaughter (§ 192, subd. (c)(1)), and 

misdemeanor vehicular manslaughter (§ 192, subd. (c)(2)). (See 

CALCRIM Nos. 591, 592 & 593 [all three instructions requiring 

the People to prove beyond a reasonable doubt the defendant’s 

conduct “caused the death of another person”].)
20

deceased person, contributed to the death”), which Klein insists 

should have been given in this case.16 

4. The Trial Court Did Not Commit Prejudicial Error by 

Failing To Describe Vehicular Manslaughter as a Lesser 

Included Offense of Murder

“‘[I]t is the “court’s duty to instruct the jury not only on the 

crime with which the defendant is charged, but also on any lesser 

offense that is both included in the offense charged and shown by 

the evidence to have been committed.”’” (People v. Castaneda

(2011) 51 Cal.4th 1292, 1327; accord, People v. Westerfield (2019) 

6 Cal.5th 632, 718.) Because voluntary and involuntary

manslaughter are lesser included offenses of murder (People v. 

Thomas (2012) 53 Cal.4th 771, 813; see People v. Breverman

(1998) 19 Cal.4th 142, 154 [voluntary manslaughter]; People v. 

Gutierrez (2002) 28 Cal.4th 1083, 1145 [involuntary 

manslaughter]), Klein argues it was error for the trial court not 

to instruct the jury that vehicular manslaughter pursuant to 

section 192, subdivision (c), was a lesser included offense of the 

charged murder, notwithstanding that section 192, 

subdivision (b), defining involuntary manslaughter, expressly 

16 Given this state of the evidence, even if it were error for the 

court not to have given an additional causation instruction 

sua sponte, any such error would be harmless. (See People v. 

Crew (2003) 31 Cal.4th 822, 847 [any error in causation 

instructions was harmless under either the federal or state 

standard “because here it is clear beyond a reasonable doubt that 

a rational jury would have found defendant guilty absent any 

error”].) 
21

states, “This subdivision shall not apply to acts committed in the

driving of a vehicle.”17

The Supreme Court in People v. Sanchez (2001) 24 Cal.4th 

983 (Sanchez), disapproved on another ground in People v. Reed

(2006) 38 Cal.4th 1224, 1228-1229, held, under the statutory 

elements test, gross vehicular manslaughter while intoxicated, 

the offense defined by section 191.5 and charged as count 2 in 

this case, is not a lesser included offense of implied malice 

murder. The Court explained, “When we compare the elements 

of murder with the elements of gross vehicular manslaughter 

while intoxicated, it appears, as the Court of Appeal concluded, 

that the statutory elements of murder do not include all the 

elements of the lesser offense. Gross vehicular manslaughter 

while intoxicated requires proof of elements that need not be 

proved when the charge is murder, namely, use of a vehicle and 

intoxication. Specifically, section 191.5 requires proof that the 

homicide was committed ‘in the driving of a vehicle’ and that the 

driving was in violation of specified Vehicle Code provisions 

prohibiting driving while intoxicated. [¶] Defendant contends 

that gross vehicular manslaughter while intoxicated merely 

17 Section 192, subdivision (c), defines vehicular 

manslaughter, in part, as, “(1) Except as provided in 

subdivision (a) of Section 191.5, driving a vehicle in the

commission of an unlawful act, not amounting to a felony, and

with gross negligence; or driving a vehicle in the commission of a

lawful act which might produce death, in an unlawful manner,

and with gross negligence. [¶] (2) Driving a vehicle in the

commission of an unlawful act, not amounting to a felony, but

without gross negligence; or driving a vehicle in the commission

of a lawful act which might produce death, in an unlawful

manner, but without gross negligence.”
22

requires proof of a certain variety of unlawful killing, and that 

the essential common element of proof in both manslaughter and 

murder simply is an unlawful killing. We believe this contention 

is unfounded for the same reason that courts have concluded that 

assault with a deadly weapon is not an offense necessarily 

included within the offense of murder. The lesser offense 

contains crucial elements of proof that are absent from the 

greater offense, thereby making it possible to commit the greater 

offense without necessarily committing the lesser offense.” (Id. at 

p. 989.)

As the Attorney General argues, the same elements test 

applied in Sanchez precludes recognizing other forms of vehicular 

manslaughter as lesser included offenses of murder. (See People 

v. Bettasso (2020) 49 Cal.App.5th 1050, 1057 [the argument 

vehicular manslaughter pursuant to section 192, subdivision (c), 

is a lesser included offense of second degree murder is foreclosed 

by Sanchez]; Wolfe, supra, 20 Cal.App.5th at p. 685 [same].) 

Although Klein acknowledges the holding in Sanchez, he 

attempts to distinguish it, emphasizing that Sanchez considered 

section 191.5, gross vehicular manslaughter while intoxicated, 

not vehicular manslaughter under section 192, subdivision (c), 

and pointing to the Supreme Court’s decision in People v. Ortega

(1998) 19 Cal.4th 686, which held grand theft of a vehicle was a 

lesser included offense of robbery, relying on the long-standing 

recognition of the law that theft is a lesser included offense of

robbery. (Id. at p. 695.) Similarly, Klein contends, it has long 

been held that manslaughter is a lesser included offense of 

murder.

Klein’s argument reads Sanchez far too narrowly. The 

Sanchez Court specifically addressed Ortega and rejected the 
23

parallel that Klein attempts to draw: “[T]o the extent that our

opinion in Ortega relied upon an historical practice supporting

the general principle that all forms of theft are included within

the crime of robbery, the present case also may be distinguished. 

Although we recognize that historically manslaughter in general 

has been considered a necessarily included offense within

murder, that long and settled tradition has not extended to the 

more recently enacted forms of vehicular manslaughter that 

require proof of additional elements.” (Sanchez, supra, 

24 Cal.4th at p. 992.) Klein’s suggestion that, by referring to 

“more recently enacted forms of vehicular manslaughter,” the 

Supreme Court was differentiating section 191.5, gross vehicular 

manslaughter while intoxicated, from other forms of vehicular 

manslaughter identified in section 192, subdivision (c), is 

expressly refuted by the Court’s statement that its decision “does

not turn on a distinction between vehicular manslaughter while 

intoxicated as defined by section 192 and gross vehicular 

manslaughter while intoxicated as defined by section 191.5.” 

(Sanchez, at p. 992, fn. 4; see People v. Bettasso, supra, 

49 Cal.App.5th at p. 1059 [noting that the Supreme Court in 

Sanchez had explained that the criminal offense defined in 

section 191.5 was formerly contained in section 192].)

Moreover, it is difficult to fathom the nature of the error, 

let alone any prejudice, Klein is claiming under the 

circumstances of this case. The court instructed not only that the

various section 192, subdivision (c), vehicular manslaughter 

offenses were lesser included offenses of gross vehicular 

manslaughter while intoxicated, but also that, if any juror had a 

reasonable doubt whether Razo’s homicide was murder or 

manslaughter, that juror must find it to be manslaughter; and if, 
24

in turn, there was a reasonable doubt whether the crime was 

gross vehicular manslaughter while intoxicated, the juror must 

find it was the lesser offense of vehicular manslaughter without 

gross negligence. Thus, as instructed, even without designating 

the various vehicular manslaughter offenses as lesser included 

crimes of murder, there was no all-or-nothing issue, one of the 

principal reasons lesser included instructions are mandatory if 

substantial evidence supports the conclusion the defendant 

committed the lesser offense and not the greater. (See People v. 

Gonzalez (2018) 5 Cal.5th 186, 196 [the rule requiring trial courts 

to instruct on lesser included offenses of the charged crime 

protects the jury’s “‘“truth-ascertainment function,”’” ensuring 

“‘the verdict is no harsher or more lenient than the evidence 

merits’”]; People v. Smith (2013) 57 Cal.4th 232, 239-240 [“‘[t]he 

rule prevents either party, whether by design or inadvertence, 

from forcing an all-or-nothing choice between conviction of the 

stated offense on the one hand, or complete acquittal on the 

other’”].) 

In addition, although a defendant cannot be convicted of 

both an offense and a lesser offense necessarily included within 

that offense based upon his or her commission of the identical act

(People v. Ortega, supra, 19 Cal.4th at p. 692),

18 because count 2, 

gross vehicular manslaughter while intoxicated, was dismissed

18 The Ortega Court explained, “[D]espite the seemingly 

absolute language of section 954 (‘the defendant may be convicted 

of any number of the offenses charged’), there is an exception to 

the general rule permitting multiple convictions. ‘Although the 

reason for the rule is unclear, this court has long held that 

multiple convictions may not be based on necessarily included 

offenses.’” (People v. Ortega, supra, 19 Cal.4th at p. 692.)
25

once the jury returned its verdict finding Klein guilty of murder, 

that issue—the question before the Supreme Court in Sanchez, 

supra, 24 Cal.4th 983—was not presented in this case. (See id. at 

p. 992 [“under the general California standard for determining 

greater and lesser included offenses, gross vehicular 

manslaughter while intoxicated should not be treated as a lesser 

included offense of murder and thus that a defendant may be 

convicted of both offenses arising out of the same act”].)

In sum, even if vehicular manslaughter were a lesser 

included offense of implied malice murder, contrary to the 

reasoning in Sanchez, supra, 24 Cal.4th 983 and the holdings of 

the courts of appeal that have decided the issue, the failure to 

designate those offenses as such in this case was not prejudicial 

error. 

5. Remand Is Appropriate for a Determination of Klein’s

Ability To Pay the Fine, Fee and Assessment Imposed

Citing People v. Dueñas (2019) 30 Cal.App.5th 1157

(Dueñas) and People v. Castellano (2019) 33 Cal.App.5th 485,

Klein contends remand is necessary because at sentencing the

trial court imposed, without determining his ability to pay, a

court operations assessment under Penal Code section 1465.8, a

court facilities assessment fee under Government Code

section 70373 and a restitution fine under Penal Code

section 1202.4, subdivision (b).19

In Dueñas this court concluded, “[T]he assessment 

provisions of Government Code section 70373 and Penal Code 

19 This court’s opinion in Dueñas, supra, 30 Cal.App.5th 1157

was filed on January 8, 2019, the same day as Klein’s sentencing

hearing.
26

section 1465.8, if imposed without a determination that the 

defendant is able to pay, are . . . fundamentally unfair; imposing 

these assessments upon indigent defendants without a 

determination that they have the present ability to pay violates 

due process under both the United States Constitution and the 

California Constitution.” (Dueñas, supra, 30 Cal.App.5th at 

p. 1168; accord, People v. Belloso (2019) 42 Cal.App.5th 647, 654-

655 (Belloso), review granted Mar. 11, 2020, S259755.) A

restitution fine under Penal Code section 1202.4, subdivision (b),

however, “is intended to be, and is recognized as, additional 

punishment for a crime.” (Dueñas, at p. 1169; accord, Belloso, at 

p 655.) And Penal Code section 1202.4, subdivision (c), expressly 

provides a defendant’s inability to pay a restitution fine may not 

be considered a “compelling and extraordinary reason” not to 

impose the statutory minimum fine. Accordingly, as held in

Dueñas, to avoid a serious constitutional question if a restitution 

fine were to be imposed on an indigent defendant, “the court 

must stay the execution of the fine until and unless the People 

demonstrate that the defendant has the ability to pay the fine.” 

(Dueñas, at p. 1172; accord, Belloso, at p. 655.)20

The People contend, using an Eighth Amendment, rather

than due process clause analysis, the restitution fine was not

grossly disproportional to the gravity of Klein’s offense and,

therefore, was not unconstitutionally excessive. They also assert,

20 The following issues are presently pending before the 

Supreme Court in People v. Kopp (2019) 38 Cal.App.5th 47, 

review granted November 13, 2019, S257844: “Must a court 

consider a defendant’s ability to pay before imposing or executing 

fines, fees, and assessments? If so, which party bears the burden 

of proof regarding defendant’s inability to pay?”
27

as a punitive fine, it did not violate due process. And while

conceding a due process violation in imposition of the nonpunitive

court operations assessment and court construction fee without

any inquiry into Klein’s ability to pay, they argue the error was

harmless beyond a reasonable doubt because Klein will be able to

earn the relatively small amounts involved while in prison.

In Belloso we rejected the contention a constitutional 

challenge to imposition of fines and fees on an indigent defendant 

should be reviewed under an excessive fines analysis instead of 

using a due process framework and reconfirmed the holding in

Dueñas that imposition of restitution fines upon an indigent 

defendant raises serious due process concerns. (Belloso, supra, 

42 Cal.App.5th at pp. 655, 660.) The People present no 

persuasive reason for us to reconsider our analysis. 

As for the People’s harmless error argument, on the limited 

record before us, we are unable to conclude beyond a reasonable 

doubt that Klein’s future earning capacity demonstrates his 

ability to pay the various assessments imposed. 

In light of Klein’s burden to prove his inability to pay 

(People v. Castellano, supra, 33 Cal.App.5th at p. 490), we 

remand the matter to the trial court to give Klein an opportunity 

to request an ability-to-pay hearing and to present evidence of his 

inability to pay the fine, fee and assessment the trial court 

imposed.
28

DISPOSITION

The judgment is affirmed. We remand for the trial court to 

allow Klein to request a hearing and present evidence 

demonstrating his inability to pay the court operations 

assessment, the court construction fee and the restitution fine. If 

Klein demonstrates his inability to pay the assessment and fee, 

the trial court must strike them. If the trial court determines

Klein does not have the ability to pay the restitution fine, it must 

stay execution of the fine.

PERLUSS, P. J.

We concur:

SEGAL, J.

FEUER, J.