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

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

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 At torney 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 d riving under the

influence of alcohol. Klein, sentenced to a n 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 issue s of malice and

causation and erred by fai ling 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 den ied the special allegati ons.

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 ut ility 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 re placing 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 breat h and

initiated a field sobriety investigation

. Although Klein performed
fairly well on some of the field sobriety tests

, h is 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 feeli ng
the effect s 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. H e drank heavily the day before and again during the early morning hours of August 9, 2017. After waking that morning, he dr a nk

24 ounce s 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 ounce s 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
Dep artment 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 co ntent 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, h e 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, trie d to take the curve as widely as possible in a way that
allow ed his turn sign al to stay on. As Klein neared 20 feet of Razo’s truck, he swerved five feet to his left

, leaving 30

- f oo t

- 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 acknowledg ed with his

initials that he h ad 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 d rugs, 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 dri nking 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 ask ing 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 u nder 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 f ee (Gov

. Code, § 70373) and a $300 restitution fine ( Pen. Code, § 1202.4, subd. (b)).

DISCUS SION

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 wh ile

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 guil ty 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.
Confli cts 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
wh ich 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 sufficient7

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

, “ m alice 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) 2 0 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 caution ed that a charge
of second degree murder sh ould not become routine for intoxicated

drivers w ho cause the death of a nother 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 page s 68 2

- 68 3, “ Generally, [courts] ‘ have relied on some or all of the following

sub stantial 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 int oxicated; and
(4) highly dangerous driving. ’”

Based on th is 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 t raffic 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 , 3 0 Cal.3d at p p

. 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.4t h 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

- 10 75 [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, repeatedly9

swerving into oncoming traffic before running a red light and
colliding with the decedent’s car]; People v. Au t ry (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, b ecause 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, a fter identifyin g
the four factors from Watson , the Wolfe court explain ed

, “ 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) 3 1 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 wa s 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 d rink at home (his parents disliked his drinking), he

chose instead to do so while driv ing around for several hours. He
told officers he had been having “a bad day,” which the jury
reasonably could understand as motivati on (or self

- serving
justification) f

or 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. W hen interviewed by officers after

the ac cident , 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 st op and allow himself to recover. Nonetheless,

h e 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 cour t pointed out, none of this evidence

indicated Klein intended t o 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 experien ce that he should not be driving

while in that condition because of the danger to life engendered
by such conduct

, yet deliberately chose to spen d 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 elemen ts 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

h uman 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 tha t

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

defin es express and implied ma lice and explain s 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 malice12 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 a nd 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 perso n killed. [ ¶ ] The word ‘aforethought’ does not imply deliberation or the lapse of considerable time. It only means that the required mental state must prece de rather than follow the
act.”

7 The Attorney General contends Klein forfeited the issue of

instr uctional 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 challe nge 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 (2 006) 38 Cal.4th 1002, 1011

- 1012 [failure to

ob ject 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 (2 019) 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 not13 b. Standard of review

A trial court in a criminal case has a duty to instruct on general principles of law applicable to th e 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 a s 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 N o

. 8.31
correctly stated the elements of se cond 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 t he 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 Similarl y, omi tting 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 t his is an implied malice murder,” and then
reviewed the elements of the crime as set forth in CALJIC

No. 8.31. (See general ly 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 us ing CALJIC
instructions that a dequatel y 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 inst ructed
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 un lawful 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 constitut e murder . . . there must be, in addition to the death
of a human being, an unlawful act which was the cau se 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

le sser 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 h ave be en 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) ; b ut 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. 5 20.

13 In review ing 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 t he 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 (20 20

- 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 b ench note to CALCRIM No. 520 indicates
the additional instruction Klein contends w as 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 c ourt 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 bra cketed causation paragraph. ” ( Bench Note to
CALCRIM No. 520 (2020 ed. ) p. 239.)19

of his truck, putting t ools 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 argue d made him difficult to see in the afternoon sun, Razo
was also wearing gray pants and a straw hat, which contrasted

with the white c olor 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 inclu ded offense to count 2: “He committed a
crime. He committed the crime of vehicular manslaughter
without g r oss negligence but while he was intoxicated. That is
the crime he certainly committed. Everything above that was not
what he did, has not been pro ven beyond a reasonable doubt.” 15 Klein’s final causation argument

— that i t was error to

include CALJIC No. 8.56

, the instruction stating i t is not a
defense to a criminal charge that the deceased or some other
person was guilty of negligence that w as 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 criticiz es
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”), w hich Klein insists
should have been given in this case. 16

4. The Trial Cou rt Did Not Commit Prejudicial Error by Failing To Describe V ehicular 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 involuntar y manslaughter are lesser included offense s 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]) , K lein argues it was error for the trial court not
to instruct the jury that vehicular manslaughter pursuant to
section 192, subdivision (c), wa s 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 give n 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 1 91.5 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 ele ments 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. G ross vehicular manslaughter
while intoxicated requires pro of 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 mer ely

17 Se ction 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 l esser 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 10 50, 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 the23

paral lel 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

, ” t he
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 u nder the

circumstances of this case. T he court instructed not only that the
various section 192, subdivision (c), vehicular manslaughter

offenses were less er included offenses of gross vehicular
manslaughter while intoxicate d, 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 int oxicated, 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 reason s less er 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 r ule 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 convicti on of the
stated offense on the one hand, or complete acquittal on the

other ’”].)
In addition, although a defendant c annot 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 numb er 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 bef ore 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 mur der, 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

C iting 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 u nder 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 recognize d as, additional
punishment for a crime. ” ( Dueñas , at p. 1169; accord, Belloso , at

p 655.) And Penal Code s ection 1202.4, subdivision (c), expressly
provides a defendant ’ s inability to pay a restitution fine may not

be considered a “ compelling and extrao rdinary reason ” not to impose the statutory minimum fine. Accordingly, a s held in

Dueñas , to avoid a serious constitutional question if a restitution

fine were to be imposed on an indigent defendant, “t he 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, B elloso , at p. 655.) 20

The People contend, using an Eighth Amendment, rather

than due process clause analysis, the restitution fine w as 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 Nov ember 13, 2019, S257844 : “ Must a court
consider a defendant ’ s ability to pay before imposing or executing fines, fees, and assess ments? 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 i n 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 p p

. 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 demonstrate s his
ability to pay the various assessments imposed.

I n 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 asse ssment the trial court
imposed.28 DISPOSITION

The jud gment 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:

SE GAL, J.

FEUER, J

.