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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.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 Cour t of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

* * *2 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 ter m 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 issue s 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 conside ration 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
F ACTS AND P ROCEDURAL H ISTORY
A. Fatal Collision and Convictions on All Charges and A llegations

In January 2018 , after consuming several alcoholic drinks at a bar,
Gonzalez drove his vehicle on the wrong side of Interstate 5 . He collid ed 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

v ideo showing Gonzalez consuming alcohol at a bar with a woman and handing her his key s w hen 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 fiv e miles, with lights and sirens on, in excess of 100 miles an3

hour , and followed him until the collision

. Postcollision d ata recovered from Gonzalez’s
vehicle showed it had been traveling around 99 miles an hour within seconds of the
collision and 74 mile s an hour immediately before impact . The data and video footage
showed Gonzalez applied his brakes several times before the c rash

.

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 , t he prosecutor recalled a n earlie r witness, Tonda
Cicali , the manager of Gonzalez’s alcohol abuse program

. Cicali testified that , according to the program’s records, Gonzalez had reported consum ing alcohol on multiple occasions within the six months leading up to the collision.

T he trial court granted the prosecutor’s request to instruct the jury with
CALCRIM No. 3426, which explained voluntary intoxication and implied malice murder liability. T he court denied Gonzalez’s request to give CALCRIM No. 626 , which dealt
with unconscio usness 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 )

. C ounsel 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 supplement al brief

. Gonzalez filed a supplemental brief , joining
in the issues his appellate counsel suggested we consider and raising additional challenges to the judgment.4 II
D ISCUSSION Gonzalez ’s supplemental brief rais ed the same issues his appellate counsel
invited us to consider and add ed several other contentions. We must consi der 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 den ied 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

cou rt erred in denying Gonzalez’s request to instruct on gross veh icular manslaughter as
a lesser included offense o f drunk driving implied malice murder; (3) the court erred in imposing a consecuti ve three

- year term for inflict ing great bodily injury on the passenger because injury to multiple victims is govern ed by the more specific one

- additional

- year provis ion in Vehicle Code section 23558; and (4) defense counsel provided ineffective
assistance for failing to object to th e prosecutor’s closing argument that this ca se was not
based on circumstantial evidence even though Gonzalez’s mental state only could h av e been proven circumstantia lly

.

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 conce rning 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)5

60 Cal.4th 922 , 939 [Legislature intended the three

- year enhancement for great bodily injuries to be applied broadly; Veh icle Code section 23558 does not limit the court’s use of section 12022.7].)

Next, we see no arguable issue o n whether Gonzalez’s trial counsel should have objected to the prosecutor’s closi ng argument . Contrary to Gonzalez ’s conten tion , t he record shows the prosecutor attempt ed to negate any notion the evidence w as “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

. ( S ee People v. Cortez (2016) 63 Cal.4th 101, 13 1 [“ ‘ [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, notin g 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 openin g 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 ex clusion of a homicide chart on opening statement could not
affect the outcome.6 Finally, we discern no arguable appellate issue i n 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
D IS POSITION The judgment is affirmed

.

ARONSON, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

GOETHALS , J.