Filed 2/25/21 P. v. Gonzalez CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

 Plaintiff and Respondent,

v.

IVAN GONZALEZ,

 Defendant and Appellant.

 G058949

 (Super. Ct. No. 18CF0125)

 O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Patrick

Donahue, Judge. Affirmed.

Cindy Brines, under appointment by the Court of Appeal, for Defendant 

and Appellant.

No appearance for Plaintiff and Respondent.

* * *
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A jury convicted defendant Ivan Gonzalez of second degree implied malice 

murder (Pen. Code, § 187, subd. (a)) and drunk driving offenses (Veh. Code, § 23153, 

subds. (a) & (b).) The jury also found true allegations Gonzalez had suffered two 

separate drunk driving convictions. (Veh. Code, § 23566.) The trial court sentenced 

Gonzalez to an aggregate indeterminate prison term of 15 years to life, and a determinate 

prison term of 7 years to be served consecutively.

Gonzalez’s appointed counsel filed an appellate brief setting forth the facts 

of the case but advised the court she could find no issues to argue on Gonzalez’s behalf. 

Gonzalez responded to our invitation to submit written argument on his own behalf by 

filing a brief raising several issues. 

We have examined the entire record, reviewed issues Gonzalez’s counsel 

presented for our consideration and also considered Gonzalez’s brief, but have not found 

an arguable issue. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Accordingly, we 

affirm the judgment.

I

FACTS AND PROCEDURAL HISTORY

A. Fatal Collision and Convictions on All Charges and Allegations

In January 2018, after consuming several alcoholic drinks at a bar, 

Gonzalez drove his vehicle on the wrong side of Interstate 5. He collided head on with a 

vehicle traveling in the correct direction, killing the vehicle’s driver and severely injuring 

the passenger. 

At trial, the parties stipulated that three hours after the collision Gonzalez’s 

blood alcohol content was more than double the legal limit. The prosecution presented a 

video showing Gonzalez consuming alcohol at a bar with a woman and handing her his 

keys when they left the bar, about two hours before the collision.

A California Highway Patrol officer testified he chased Gonzalez’s vehicle 

in his patrol car for about five miles, with lights and sirens on, in excess of 100 miles an 
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hour, and followed him until the collision. Postcollision data recovered from Gonzalez’s 

vehicle showed it had been traveling around 99 miles an hour within seconds of the 

collision and 74 miles an hour immediately before impact. The data and video footage 

showed Gonzalez applied his brakes several times before the crash. 

Gonzalez testified at trial, acknowledging his prior drunk driving 

convictions and admitting he had been warned about the dangers of drunk driving.

Gonzalez did not dispute he consumed alcohol and voluntarily drove on the night of the 

collision, but claimed he could not remember driving because, “after [his] second or third 

drink, [he] lost concious[ness].”

Gonzalez testified about his enrollment in an alcohol abuse program at the 

time of the collision. When Gonzalez claimed he had not consumed alcohol in the six 

months leading up to the collision, the prosecutor recalled an earlier witness, Tonda 

Cicali, the manager of Gonzalez’s alcohol abuse program. Cicali testified that, according 

to the program’s records, Gonzalez had reported consuming alcohol on multiple 

occasions within the six months leading up to the collision. 

The trial court granted the prosecutor’s request to instruct the jury with

CALCRIM No. 3426, which explained voluntary intoxication and implied malice murder 

liability. The court denied Gonzalez’s request to give CALCRIM No. 626, which dealt 

with unconsciousness caused by voluntary intoxication. 

B. Appeal

Gonzalez appealed his convictions and his appellate counsel filed a brief 

under the procedures outlined in Wende, supra, 25 Cal.3d 436 and Anders v. California

(1967) 386 U.S. 738 (Anders). Counsel offered several issues for us to consider. She 

advised Gonzalez about the nature of the Wende brief and informed Gonzalez he 

personally could file a supplemental brief. Gonzalez filed a supplemental brief, joining 

in the issues his appellate counsel suggested we consider and raising additional 

challenges to the judgment.
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II

DISCUSSION

Gonzalez’s supplemental brief raised the same issues his appellate counsel 

invited us to consider and added several other contentions. We must consider each of the 

issues personally raised by a defendant when appellate counsel has filed a Wende brief. 

(People v. Kelly (2006) 40 Cal.4th 106, 124.)

Gonzalez, relying on his counsel’s brief, contends (1) the trial court erred 

when it denied Gonzalez’s request to instruct the jury with CALCRIM No. 626 on

unconsciousness as a partial defense to drunk driving implied malice murder; (2) the 

court erred in denying Gonzalez’s request to instruct on gross vehicular manslaughter as 

a lesser included offense of drunk driving implied malice murder; (3) the court erred in 

imposing a consecutive three-year term for inflicting great bodily injury on the passenger

because injury to multiple victims is governed by the more specific one-additional-year 

provision in Vehicle Code section 23558; and (4) defense counsel provided ineffective 

assistance for failing to object to the prosecutor’s closing argument that this case was not 

based on circumstantial evidence even though Gonzalez’s mental state only could have 

been proven circumstantially.

These contentions do not present an arguable issue. The trial court 

correctly denied Gonzalez’s request to instruct on unconsciousness per CALCRIM No. 

626 because voluntary intoxication causing unconsciousness is not a defense to drunk 

driving implied malice murder. (People v. Ferguson (2011) 194 Cal.App.4th 1070, 

1081.) And no arguable issue exists concerning the failure to provide a lesser included 

offense because gross vehicular manslaughter is not a lesser included offense of drunk 

driving implied malice murder. (People v. Sanchez (2001) 24 Cal.4th 983, 992.)

As to sentencing, the trial court did not err when it imposed the great bodily 

injury enhancement under Penal Code section 12022.7. (People v. Weaver (2007) 

149 Cal.App.4th 1301, 1328, disapproved on another ground by People v. Cook (2015) 
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60 Cal.4th 922, 939 [Legislature intended the three-year enhancement for great bodily 

injuries to be applied broadly; Vehicle Code section 23558 does not limit the court’s use 

of section 12022.7].)

Next, we see no arguable issue on whether Gonzalez’s trial counsel should 

have objected to the prosecutor’s closing argument. Contrary to Gonzalez’s contention,

the record shows the prosecutor attempted to negate any notion the evidence was 

“purely” circumstantial by emphasizing the direct evidence presented. More 

importantly, the record shows the court properly instructed on the distinction between 

circumstantial and direct evidence, and that the prosecutor could prove Gonzalez’s 

required mental state for implied malice murder liability through circumstantial evidence.

(See People v. Cortez (2016) 63 Cal.4th 101, 131 [“‘[P]rosecutorial commentary should 

not be given undue weight in analyzing how a reasonable jury understood . . .

instructions’”].) 

Gonzalez’s supplemental brief presents four additional arguments for 

reversing the judgment. He contends the trial court erred when it admitted certain 

photographic evidence, excluded a defense chart about homicide crimes, instructed the 

jury with CALCRIM No. 3426, and admitted Cicali’s testimony to impeach Gonzalez’s 

testimony. None of these contentions present an arguable issue.

As to the photos, the trial court exercised its broad discretion in finding the 

photos more probative than prejudicial, noting the victims were not shown in the photos 

and were admitted only after the prosecution established the proper foundation. Nor is 

there an arguable issue in the court’s exclusion of the homicide chart. This ruling applied 

only to defense counsel’s opening statement. Opening statement generally is limited to a 

description of the evidence counsel expects to present, but counsel may not argue 

ultimate facts or delve into an explanation of the applicable law. Because the jury was 

properly instructed, the exclusion of a homicide chart on opening statement could not 

affect the outcome.
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Finally, we discern no arguable appellate issue in Gonzalez’s suggestion

that Cicali’s testimony should have been excluded based on a confidentiality agreement 

not produced in the record. Gonzalez did not raise the issue in the trial court and 

therefore forfeited the issue on appeal. (People v. Partida (2005) 37 Cal.4th 428, 434.) 

Further, even if we assessed the issue on its merits, we would conclude that excluding the

testimony would not have resulted in either “a reversal or a modification of the 

judgment” (People v. Johnson (1981) 123 Cal.App.3d 106, 109), given the strength of the 

other evidence against Gonzalez presented at trial.

III

DISPOSITION

The judgment is affirmed. 

ARONSON, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

GOETHALS, J.