Filed 1/9/19; Opinion following rehearing

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

LAURO LOPEZ,

Defendant and Appellant.

 B282867

 (Los Angeles County

 Super. Ct. No. BA440645)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Kathleen Kennedy-Powell, Judge. Affirmed.

Waldemar D. Halka, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief 

Assistant Attorney General, Lance E. Winters, Assistant 

Attorney General, Yun K. Lee and Marc A. Kohm, Deputy 

Attorneys General, for Plaintiff and Respondent.

*Pursuant to California Rules of Court, rules 8.1100 and 8.1110, 

this opinion is certified for publication with the exception of parts

I, II, and IV of the Discussion Section.
2

INTRODUCTION

While driving under the influence of alcohol, appellant 

Lauro Lopez made a left turn in front of an oncoming motorcycle, 

hitting and killing the rider. A jury convicted appellant of second 

degree murder and felony hit and run driving resulting in death 

or serious injury.

Appellant challenges his conviction in several ways. First, 

he argues that the trial court erred by admitting evidence of the 

advisement he received after a prior conviction for driving under 

the influence. Second, appellant raises several claims of error 

related to the jury instructions. Third, he contends his conviction 

on both counts must be overturned due to his counsel’s concession 

at trial that appellant committed the hit and run, coupled with 

the absence of affirmative evidence that he knowingly waived his 

constitutional trial rights. Finally, he asserts cumulative error 

and sentencing error. 

In our previous opinion, we reversed the conviction on the 

hit and run charge based on appellant’s argument regarding his 

counsel’s concession. We otherwise affirmed. We then granted 

respondent’s petition for rehearing and received additional 

briefing on the issue of the concession. Upon reexamination of 

this issue, we conclude defense counsel’s statements during 

argument were not tantamount to a guilty plea. We therefore 

affirm the judgment in its entirety.

PROCEDURAL HISTORY

The Los Angeles County District Attorney charged 

appellant in an information with one count of second degree 

murder (Pen. Code, § 187, subd. (a); count one)1 and one count of 

1All further statutory references herein are to the Penal 

Code unless otherwise indicated.
3

felony hit and run driving resulting in death or serious injury to 

another person (Veh. Code, § 20001, subd. (b)(2); count two). 

Appellant pled not guilty to both counts and the matter 

proceeded to jury trial. 

The jury found appellant guilty on both counts. The court 

sentenced appellant to 15 years to life on the murder charge and 

three years on the hit and run charge, to run consecutively. 

Appellant timely appealed. As we have indicated, after we 

issued our initial opinion, we granted respondent’s petition for 

rehearing on the issue of defense counsel’s concession during 

argument.

FACTUAL BACKGROUND

The following evidence was adduced at trial.

I. Prosecution Evidence

A. 2013 drunk driving conviction 

Appellant was previously arrested for driving under the 

influence on January 7, 2013. He pled no contest to driving 

under the influence with a blood alcohol content of .08 percent or 

higher in violation of Vehicle Code section 23152, subdivision (b), 

and admitted as part of his plea that his blood alcohol level was 

actually .20 percent or higher. Before entering his plea, 

appellant signed a written advisement, which was also read to 

him by a Spanish interpreter. It included the following Watson2

advisement: “I understand that being 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 my driving someone is killed, I can be 

2People v. Watson (1981) 30 Cal.3d 290 (Watson).
4

charged with murder.” In addition, during the plea hearing, the 

judge repeated the Watson advisement. 

The terms of appellant’s plea required him to complete a 

nine-month alcohol education program and a Mothers Against 

Drunk Driving (MADD) victim impact program, and barred him 

from driving without a valid driver’s license or with any 

measurable amount of alcohol in his system. Appellant was 

placed on probation for three years. 

Pursuant to the terms of his plea, appellant completed a 

nine-month alcohol program starting in February 2013. The 

program, given in Spanish, included 23 group sessions, six 

alcoholic education sessions, 10 interviews, and 19 Alcoholics 

Anonymous meetings. Upon completion, appellant filled out an 

exit form stating that he would not drink and drive. 

In November 2013, appellant also attended a victim impact 

panel, an educational program for driving under the influence 

(DUI) offenders. He registered for and completed the course in 

English. As part of the program, the administrator testified that 

she discussed the Watson advisement with the participants and 

projected the text on a big screen. She would customarily tell the 

story of another class participant who attended the class twice 

and later caused an accident that killed two people. 

B. 2015 accident

On October 13, 2015 at approximately 7:15 p.m., appellant 

approached the intersection of Soto Street and 57th Street in 

Huntington Park. He was driving his white pickup truck and his 

29-year-old son was in the passenger seat. Appellant made a left 

turn onto 57th Street in front of an oncoming motorcycle. He 

struck the motorcycle, knocking its rider to the ground. 

Appellant then drove away from the scene. 
5

A bystander called 911, reporting that “a guy came, took a 

left. And nailed a woman or man on a motorcycle.” He described 

the vehicle as a white truck and told the operator where the truck 

was heading. The 911 call was played for the jury at trial. 

Detective Garey Staal of the Huntington Park Police 

Department (HPPD) testified that he and his partner saw the 

motorcycle driving on Soto Street before the accident. The 

motorcycle was travelling a “little faster than the normal traffic 

but . . . nothing that was concerning as far as speed.” They came 

upon the scene of the accident and saw the same motorcycle on 

the ground. Detective Staal ran toward the victim on the ground 

and began performing CPR, assisted by others at the scene. 

Paramedics arrived less than five minutes later. The victim was 

transported to the hospital and died shortly thereafter from his 

injuries. 

Staal and his partner gathered a description of the suspect 

vehicle and its direction of travel from witnesses at the scene; 

they broadcast that information over their police radio. The 

detectives also noticed a license plate lying in the street, which 

appeared to be the front license plate from the suspect vehicle. 

Staal’s partner wrote down the license plate number and gave it 

to police dispatch; dispatch advised him that the vehicle with 

that plate number was registered to appellant. 

A short time later, a police officer who had heard the 

collision and then heard about the suspect over the police radio 

spotted appellant’s truck parked in a nearby business parking lot. 

As the officer walked over to the truck, he noticed appellant and 

his son standing in a yard next to the vehicle. The officer 

approached and asked in Spanish if either of them was driving 

the pickup truck. The officer testified at trial that in response, 
6

appellant pointed to his son, who shook his head no. The officer 

then called for assistance. 

HPPD officer Martin Magallanes arrived a few moments 

later. He noted that the front license plate on appellant’s truck 

was missing and the rear plate matched the number from the 

plate at the scene. He spoke to appellant in Spanish and testified 

that he could smell alcohol on appellant’s breath. Appellant 

acknowledged to Magallanes that he had consumed three 24-

ounce beers between 5:00 and 6:00 p.m. He stated he did not feel 

the effects of the alcohol, but Magallanes noticed appellant 

swaying. Appellant also admitted he had been driving. He told 

Magallanes that his truck did not have any mechanical problems 

and he knew he had collided with a motorcycle. He did not ask 

about the condition of the rider. 

Magallanes administered a field sobriety test to appellant, 

which indicated appellant was impaired. Appellant was also 

given two breath tests, one at 8:10 and one at 8:12 p.m.; both 

showed his blood alcohol content was 0.14 percent. That result 

was confirmed by a blood draw taken at 8:30 p.m.3 Appellant 

was arrested. 

Magallanes interviewed appellant in jail that evening 

around 10:00 p.m. Appellant agreed he had “too many beers” and 

knew driving after drinking was a crime. He said he had one 

beer at work, then went to the liquor store to get beer, drove 

home, and drank “two big Modelos” at home. He told Magallanes 

3A prosecution expert opined that any driver would be 

impaired at the level of .08 percent or above. Given a 

hypothetical scenario matching the facts of the case, he also 

opined that the driver’s blood alcohol content at the time of the 

accident would be between 0.14 and 0.16 percent. 
7

that he was not planning to leave his house that night, but he 

decided to drive his son to a friend’s house to see about a job. At 

the time of the accident, he saw the motorcycle approaching but 

thought he would be able to make the left turn safely before the 

collision. He did not see the motorcyclist after the crash. 

Appellant then left the scene because he was scared he would get 

arrested because he had been drinking. His son told him to 

remain at the scene. Appellant also stated he was not planning 

to report the collision that night because he was intoxicated. 

HPPD detective Osvaldo Cervantes interviewed appellant 

on October 14, 2015. Excerpts from the video of that interview 

were played for the jury. Appellant reiterated that he drank 

three 24-ounce Modelo beers, finishing about an hour before the 

accident. When asked if he thought he was drunk, appellant 

responded, “Well, on the one hand, yes, but on the other hand I 

think - yes, I was a little. I’m not going to say no. But . . . my kid 

was going . . . and I thought it easier that I take the truck rather 

than him.” The detectives also asked why appellant drove if he 

knew he was drunk. He responded, “that was my mistake.” He 

said the admonition he received with his prior conviction was 

that “I wasn’t to drive again with alcohol” and knew he couldn’t 

drive for three years. He also knew he was still on probation 

from his prior conviction. 

Appellant told the detectives that he was “going to make a 

left turn” and claimed he saw the other driver “coming at a high 

velocity on his motorcycle. But, there were no cars. He came 

hard.” Appellant thought he was going to be able to turn in front 

of the motorcycle, but they collided. His son said “Wait Dad!” 

before the turn, but appellant went ahead because he thought he 

could beat the motorcycle. After he felt the crash, appellant 
8

reversed his truck to move away from the accident and then left 

the scene because he was scared. He claimed he did not see the 

condition of the motorcyclist and did not see him on the ground. 

His son wanted to get out and check on the victim, but appellant 

did not stop. 

Appellant admitted to the detectives that he thought the 

victim was hurt and he “came out of it badly.” Before they 

advised appellant that the victim had died, the detectives asked 

appellant if he wanted to know how serious the victim’s injuries 

were. Appellant responded, “If you want to tell me.” He later 

stated that he was sorry but that it was also the victim’s fault 

because he (the victim) was driving so fast. 

II. Defense evidence

The defense did not call any witnesses and appellant did 

not testify. 

DISCUSSION

I. Admission of Watson Advisements

At trial, the prosecution proffered evidence of the Watson

advisements appellant received prior to the 2015 collision, 

including the written and oral plea advisements from his 2013 

DUI plea and the subsequent coursework appellant completed as 

part of that plea. Prior to trial, the parties and the court 

acknowledged the relevance and importance of this evidence to 

establish that appellant knew of the dangers of drinking and 

driving prior to the collision, and therefore acted with the implied 

malice required for murder.4 Appellant now contends this 

4Murder is “the unlawful killing of a human being . . . with 

malice aforethought.” (§ 187, subd. (a).) Malice may be express 

or implied. (§ 188.) The jury here was instructed with CALCRIM 

No. 520, which provides that the defendant acted with implied 
9

evidence was admitted in error for two reasons. First, he argues 

that by admitting a statement from the prior court that it was 

“required” to give the Watson advisement as part of the plea, the 

trial court here “created a conclusive presumption” that “as a 

matter of law, driving under the influence ‘is extremely 

dangerous to human life,” thereby directing a verdict on the 

physical component of implied malice. Second, he contends the

Watson advisements admitted at trial were inadmissible hearsay. 

Respondent counters that both claims are forfeited as appellant 

failed to raise them below. We agree that these arguments are 

forfeited.

Generally, failure to object to the admission of evidence at 

trial forfeits an appellate claim that such evidence was 

improperly admitted. (See Evid. Code, § 353, subd. (a); People v. 

Partida (2005) 37 Cal.4th 428, 435 [defendant on appeal “may not 

argue that the court should have excluded the evidence for a 

reason different from his trial objection”]; People v. Stevens (2015) 

62 Cal.4th 325, 333 [forfeiture of objection to hearsay evidence].) 

The purpose of requiring a specific objection is to “alert the trial 

court to the nature of the anticipated evidence and the basis on 

which exclusion is sought, and to afford the People an 

opportunity to establish its admissibility.” (People v. Williams

(1988) 44 Cal.3d 883, 906.) 

Here, appellant failed to object below to the admission of 

the Watson advisements on either ground he now asserts. He did 

 

malice if: “(1) He intentionally committed an act; (2) The natural 

and probable consequences of the act were dangerous to human 

life; (3) At the time he acted, he knew his act was dangerous to 

human life; and (4) He deliberately acted with conscious 

disregard for human life.” (See also Watson, supra, 30 Cal.3d at 

p. 295.)
10

object prior to trial to the prosecutor’s request to admit the 

underlying facts of the prior DUI. He also objected during trial to 

the admission of the plea waiver form, on the basis that it was 

unclear whether appellant had initialed the Watson advisement 

on the form.5 He raised no other objections to admission of any of 

the Watson advisement evidence. 

Moreover, appellant did not object as both the prosecutor 

and the court repeatedly stressed the significance of the Watson

advisements to the issue of appellant’s intent. For example, at a 

pretrial evidentiary hearing, the court denied the prosecutor’s 

request to admit the underlying facts of the prior DUI, but 

admitted evidence of the plea, advisements, and subsequent 

education. In doing so, the court noted: “This is a Watson

murder . . . because of the specific education and knowledge that 

[appellant] obtained through the Watson advisement, through the 

attendance at the AA meetings and the M.A.D.D. presentation, 

and all of that. And in the absence of that . . . without the 

evidence of the advisement and the education . . . the prosecution 

would not have filed a Watson murder in this case.” The court 

therefore ruled that the prior conviction was admissible and “all 

of the educational aspects and advisements are in.” During that 

hearing, the prosecutor argued that the “central issue in this case 

is going to be intent; that being implied malice and knowledge of 

the dangers of driving under the influence resulting in death to 

another.” Defense counsel acknowledged that a lot “of evidence 

about what Mr. Lopez learned after his arrest [in 2013] is going 

to come in,” and objected only to the admission of the underlying 

facts of the DUI. 

5In his reply brief, appellant cites only this objection in 

response to respondent’s forfeiture argument. 
11

Similarly, when defense counsel objected during trial 

regarding the unclear initials on the plea waiver, the prosecutor 

again argued that the evidence “goes to the central issue” of 

defendant’s knowledge regarding drinking and driving. The 

court overruled appellant’s objection. Had appellant objected 

below on the grounds he now asserts, the trial court could have 

addressed the asserted errors and the prosecution would have 

had the chance to cure them. For example, with respect to 

appellant’s claim that the court created a conclusive 

presumption, the prosecution could have omitted the court’s 

prefatory statement that “I’m required to advise you” from the 

evidence of the plea. Similarly, with respect to the hearsay 

objection, the prosecutor could have sought to admit the 

advisements through an appropriate witness or stipulation. 

Appellant also argues that these objections would have 

been futile. The record does not support this claim. First, 

regarding his conclusive presumption claim, he suggests that 

once the trial court overruled his objection regarding the initials 

on the plea waiver form, “any other Watson advisement objection 

would have been futile.” He does not explain why he would have 

been unable to object to the same evidence on different grounds. 

Second, with respect to the hearsay objection, appellant

acknowledges that the primary case upon which he relies, People 

v. Sanchez (2016) 63 Cal.4th 665, was issued almost a year before 

his trial. As such, he is not entitled to rely on the rule that an 

objection is not required when it “is based on a change in the law 

that the appellant could not reasonably have been expected to 

foresee.” (Corenbaum v. Lampkin (2013) 215 Cal.App.4th 1308, 

1334.)
12

Finally, appellant contends that his assertion of a due 

process violation flowing from the purported conclusive 

presumption has not been forfeited. But the cases appellant cites 

apply only to a narrow subset of due process arguments that may 

be raised for the first time on appeal. Where new arguments “do 

not invoke facts or legal standards different from those the trial 

court itself was asked to apply, but merely assert that the trial 

court’s act or omission, insofar as wrong for the reasons actually

presented to that court, had the additional legal consequence of 

violating the Constitution,” then to that limited extent, 

“defendant’s new constitutional arguments are not forfeited on 

appeal.” (People v. Ervine (2009) 47 Cal.4th 745, 771, fn. 12; 

accord People v. Partida, supra, 37 Cal.4th at p. 435.) This 

exception to forfeiture does not apply here. Appellant has not 

merely applied a due process gloss to objections he raised below. 

Instead, he has raised entirely new objections and included a due 

process claim. Under these circumstances, appellant has 

forfeited his objections to the Watson advisements.

II. Jury Instructions

Appellant raises three separate claims of instructional 

error related to his murder conviction. First, he asserts that the 

trial court incorrectly instructed the jury on the definition of 

implied malice. Second, he argues the court had a sua sponte 

duty to give a unanimity instruction as to the two separate acts 

that could have served as the basis for a murder conviction. 

Finally, he claims the trial court erred in refusing to instruct on 

lesser included offenses. We review such claims de novo. (See 

People v. Cole (2004) 33 Cal.4th 1158, 1210; People v. Waidla

(2000) 22 Cal.4th 690, 739 [de novo review of failure to instruct 

on lesser-included offense].) 
13

A. Definition of implied malice

Appellant challenges the court’s instruction to the jury on 

implied malice. The trial court instructed the jury with 

CALCRIM No. 520, which provides, in pertinent part, that a 

defendant acted with implied malice if he or she committed an 

act and the “natural and probable consequences of the act were 

dangerous to human life.” Appellant did not object to this portion 

of the instruction at trial. 

Our Supreme Court has explained that two lines of 

decisions have developed reflecting judicial attempts to 

“‘translate this amorphous anatomical characterization of implied 

malice into a tangible standard a jury can apply.’” (People v. 

Nieto Benitez (1992) 4 Cal.4th 91, 103 (Nieto Benitez).) As a 

result, the physical component of implied malice can be phrased 

in two ways. (Id. at pp. 103-104; People v. Watson, supra, 30 

Cal.3d at p. 300.) In one formulation, implied malice exists when 

a person commits “an act, the natural consequences of which are 

dangerous to life.” (Nieto Benitez, supra, 4 Cal.4th at p. 104.) In 

the alternate formulation, malice may be implied when a person 

“does an act with a high probability that it will result in death.” 

(Ibid., citing People v. Thomas (1953) 41 Cal.2d 470, 480 

(Thomas).)

Appellant contends the trial court erred by failing to 

instruct the jury with the Thomas formulation of implied malice 

“at a minimum”: that the defendant commit an act “with a high 

probability that it will result in death.” This argument has been 

squarely rejected by our Supreme Court, which has consistently 

upheld the formulation reflected in CALCRIM No. 520 and given 

here. For example, in Nieto Benitez, supra, 4 Cal.4th at p. 111, 

the court rejected the argument that the standard implied malice 
14

instruction was faulty because it did not state “a requirement 

that [the] defendant commit the act with a high probability that 

death will result.” The Nieto Benitez court confirmed that the 

instruction stated an “equivalent” standard by requiring that the 

defendant commit “an act whose ‘natural consequences’ are 

dangerous to life.” (Ibid.; see also People v. Dellinger (1989) 49 

Cal.3d 1212, 1219 [the two definitions of implied malice state 

“one and the same standard”]; Watson, supra, 30 Cal.3d at p. 

300.) 

We are bound to follow these Supreme Court decisions 

upholding the use of CALCRIM No. 520. (Auto Equity Sales, Inc. 

v. Superior Court (1962) 57 Cal.2d 450, 455.) We therefore reject 

appellant’s argument that the high court’s conclusion that the 

two standards are one and the same “does violence to the 

meaning of ordinary definitions of words.” The trial court’s 

instruction here was consistent with the controlling authorities; 

thus, we find no error in its usage.

B. Unanimity instruction

Appellant contends that the trial court erred in failing to 

give a unanimity instruction to the jury. Specifically, he claims 

that because the evidence established “two separate and distinct 

acts of driving under the influence”—first, appellant’s driving 

from his home and causing the accident, and second, his driving 

away from the accident, refusing to stop, and failing to render 

aid—the jury could have found him guilty of murder based on 

either act, and may not have unanimously agreed as to one of 

them. We conclude no unanimity instruction was required.

A jury verdict must be unanimous in a criminal case. 

(People v. Russo (2001) 25 Cal.4th 1124, 1132.) Thus, “[w]hen an 

accusatory pleading charges the defendant with a single criminal 
15

act, and the evidence presented at trial tends to show more than 

one such unlawful act, either the prosecution must elect the 

specific act relied upon to prove the charge to the jury, or the 

court must instruct the jury that it must unanimously agree that 

the defendant committed the same specific criminal act.” (People 

v. Melhado (1998) 60 Cal.App.4th 1529, 1534.) The unanimity 

requirement “‘is intended to eliminate the danger that the 

defendant will be convicted even though there is no single offense 

which all the jurors agree the defendant committed.’ [Citation.]” 

(People v. Russo, supra, 25 Cal.4th at p. 1132.) Where required, a 

unanimity instruction must be given sua sponte. (People v. 

Dieguez (2001) 89 Cal.App.4th 266, 274–275.)

Here, a unanimity instruction was not required because 

there was insufficient evidence in the record from which the jury 

could have found appellant guilty of second degree murder based 

on his post-accident conduct alone. (See People v. Burns (1987) 

196 Cal.App.3d 1440, 1458 [“‘If under the evidence presented 

such disagreement is not reasonably possible, the instruction is 

unnecessary.’”].) Specifically, we are not persuaded by 

appellant’s contention that the jury could have found implied 

malice required for the murder charge based on his post-accident 

conduct. Appellant cites no authority in support of this 

proposition. His citation to People v. Cravens (2012) 53 Cal.4th 

500 (Cravens) is inapposite. In Cravens, the court found 

substantial evidence to support a second-degree murder 

conviction for a defendant who delivered a deadly sucker punch 

at the end of a group fight. (Id. at pp. 508-511.) In upholding the 

jury’s finding of implied malice, the court relied on the 

circumstances of the attack, as well as defendant’s conduct both 

before and after the fight, noting that his post-accident 
16

callousness “bolstered the finding of implied malice.” (Id. at p. 

511.)

Similarly, here, there was extensive evidence (discussed at 

length by the prosecutor in closing argument) of appellant’s preaccident knowledge of the dangers of drinking and driving, his 

decision to drive while impaired on the day of the accident, and 

his decision to turn in front of the motorcyclist, supporting a 

conclusion that appellant acted with implied malice at the time of 

the accident. Notably, the prosecutor argued that the victim’s 

death occurred because appellant “made decisions that night, 

knowing that they would result in hurting or killing another 

person, and said, ‘I’ll take the risk.’” She also argued that 

appellant’s conduct in leaving the scene bolstered the showing of 

his disregard for human life. She did not suggest, however, that 

the jury could find implied malice based solely on appellant’s 

post-accident conduct. To the contrary, in her rebuttal argument, 

she stated that the test for implied malice was “what was the 

defendant’s state of mind before he committed that act?” 

Moreover, appellant’s counsel argued several times that his 

post-accident conduct was irrelevant to the malice inquiry. He 

told the jury that “the question isn’t what happened after the 

accident; it’s malice aforethought. . . . The question is what was 

going on in his head before the accident.” 

We also reject appellant’s argument that “nothing in the 

jury instructions prohibited the jury from finding implied malice 

based solely on defendant’s post-accident conduct and mental 

state.” The jury was instructed with CALCRIM No. 520, 

providing that the prosecution must prove that “when the 

defendant acted, he had a state of mind called malice 

aforethought,” and that implied malice required a finding that “at 
17

the time he acted, he knew his act was dangerous to human life.” 

Further, at appellant’s request and over the prosecutor’s 

objection, the court modified the instruction to include the 

following factors that the jury could consider to determine 

whether appellant acted with implied malice: “(1) A blood alcohol 

level above the legal limit of .08 percent; (2) Whether there is 

evidence of pre-drinking intent to drive; (3) Defendant’s 

knowledge of the hazards of driving while intoxicated or under 

the influence of alcohol; (4) Highly dangerous driving.” Notably, 

these factors focus on evidence prior to or at the time of the 

accident. We also note that the jury was instructed with 

CALCRIM No. 372, which provides that evidence of a defendant’s 

flight after the crime “may show that he was aware of his guilt,” 

but “cannot prove guilt by itself.” As such, the record does not 

support appellant’s assertion that the jury could have based its 

second degree murder verdict on his post-accident conduct alone.

Thus, because it was not reasonably possible that the jury 

disagreed as to what conduct supported a finding of murder, no 

unanimity instruction was necessary. (See, e.g., People v. Brown

(1991) 234 Cal.App.3d 918, 935 [“a unanimity instruction is 

unnecessary ‘unless there is evidence based on which reasonable 

jurors could disagree as to which act the defendant committed’ 

[citation]”].) Appellant’s citations to cases involving unanimity 

instructions for other crimes are inapposite. (See People v. 

Crawford (1982) 131 Cal.App.3d 591 [possession of multiple 

firearms]; People v. Scofield (1928) 203 Cal. 703, 709-710 [five 

different ways to violate hit and run statute]; People v. McNeill

(1980) 112 Cal.App.3d 330, 335 [four similar acts of assault on 

different victims].)
18

C. Lesser included offenses

Appellant requested jury instructions on the following 

lesser included offenses to murder: vehicular manslaughter 

(§ 192, subd. (c)), vehicular manslaughter while intoxicated 

(§ 191.5, subd. (b)), and gross vehicular manslaughter while 

intoxicated (§ 191.5, subd. (a).) The prosecution objected and the 

trial court denied the request, finding that those crimes were not 

lesser included offenses as they did not share all the elements of 

second degree murder; thus, the court had no authority to give 

them without the prosecutor’s consent. Appellant contends this 

was error. We disagree.

Generally, when a defendant is charged with a crime, the 

trial court must instruct the jury on any lesser included offenses 

that are supported by the evidence. (People v. Breverman (1998) 

19 Cal.4th 142, 154.) “Under California law, a lesser offense is 

necessarily included in a greater offense if either the statutory 

elements of the greater offense, or the facts actually alleged in 

the accusatory pleading, include all the elements of the lesser 

offense, such that the greater cannot be committed without also 

committing the lesser.” (People v. Birks (1998) 19 Cal.4th 108, 

117; see also People v. Reed (2006) 38 Cal.4th 1224, 1227–1228.) 

Conversely, “California law does not permit a court to instruct on 

an uncharged lesser-related crime unless agreed to by the 

prosecution.” (People v. Valentine (2006) 143 Cal.App.4th 1383, 

1387 (emphasis added), citing People v. Birks, supra, 19 Cal.4th 

at p. 136.)

In a second-degree murder charge, “Malice is implied when 

an unlawful killing results from a willful act, the natural and 

probable consequences of which are dangerous to human life, 

performed with conscious disregard for that danger.” (People v. 
19

Elmore (2014) 59 Cal.4th 121, 133.) In contrast, manslaughter is 

“the unlawful killing of a human being without malice.” (§ 192, 

subd. (b).) Vehicular manslaughter is a specific type of 

manslaughter, involving “driving a vehicle in the commission of 

an unlawful act, not amounting to a felony [and with/without] 

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

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

[and with/without] gross negligence.” (§ 192, subd. (c).) Gross 

vehicular manslaughter while intoxicated is “the unlawful killing 

of a human being without malice . . . in the driving of a vehicle, 

where the driving was in violation of [DUI laws], and the killing 

was either the proximate result of the commission of an unlawful 

act, not amounting to a felony, and with gross negligence, or the 

proximate result of the commission of a lawful act that might 

produce death, in an unlawful manner, and with gross 

negligence.” (§ 191.5, subd. (a).) Vehicular manslaughter while 

intoxicated is the same act, without gross negligence. (§ 191.5, 

subd. (b).)

Numerous courts have rejected the argument raised by 

appellant here, that vehicular manslaughter, vehicular 

manslaughter while intoxicated, and gross vehicular 

manslaughter while intoxicated are lesser included offenses to 

second degree murder. In People v. Sanchez (2001) 24 Cal.4th 

983, 990, overruled on another point in People v. Reed (2006) 38 

Cal.4th 1224, 1228-1229, the Supreme Court considered whether 

“the settled practice of treating manslaughter as an offense 

necessarily included within murder should be extended” to 

vehicular manslaughter crimes. The defendant was convicted of 

murder and gross vehicular manslaughter while intoxicated; he 

argued that the vehicular manslaughter charge was necessarily 
20

included within the murder charge, and he could not be convicted 

of both. (Id. at p. 990.) Comparing the elements of the charges, 

the Supreme Court found 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.” (Id. at p. 989.) Since a 

second-degree (implied malice) murder conviction does not 

necessarily require proof of either of those two elements, the 

court concluded that the lesser crime was not necessarily 

included within the greater. (Id. at pp. 992-993; see also People v.

Wolfe (2018) 20 Cal.App.5th 673, 685–686 [no error in trial 

court’s refusal to instruct on involuntary and/or gross vehicular 

manslaughter as neither was a lesser included offense and 

prosecution had not agreed to instructions on lesser related 

offenses].) 

Appellant acknowledges that these vehicular manslaughter 

crimes are not lesser included offenses to murder based on a 

comparison of their elements (the “elements” test). However, he 

urges us to apply the “accusatory pleading” test, under which the 

court looks to whether “‘the charging allegations of the 

accusatory pleading include language describing the offense in 

such a way that if committed as specified [some] lesser offense is 

necessarily committed.’” (People v. Montoya (2004) 33 Cal.4th 

1031, 1035 (Montoya).) He further argues we may look beyond 

the pleading itself, to evidence adduced at the preliminary 

hearing, which “establishes all three types of vehicular 

manslaughter.” A similar argument was rejected, however, by 

the court in Montoya, which considered “only the pleading for the 

greater offense.” (Id. at p. 1036.) 
21

Notably, the Montoya court disapproved a contrary holding 

in People v. Rush (1993) 16 Cal.App.4th 20. (Montoya, supra, 33 

Cal.4th at p. 1036, fn. 4.) In People v. Rush, the information 

alleged one count of robbery and one count of grand theft of a 

motor vehicle, both on the same date and involving the same 

victim. (Rush, supra, at p. 27.) The court noted that “[t]he 

pleading contained no further recitation of a connection between 

the offenses; however, the evidence at the preliminary hearing 

and at trial unequivocally established that the automobile was 

part of the loot stolen in the robbery.” (Ibid.) As such, the court 

in Rush concluded that the pleading for the greater offense 

included the requisite allegations for the lesser offense. (Ibid.)

Here, appellant advances the same argument as that made 

in Rush and disapproved by Montoya. The information here 

alleged in count one that on or about October 13, 2015, appellant 

murdered the victim with malice aforethought; in count two, it 

alleged that on the same date, appellant committed hit and run 

driving resulting in death or serious injury to an unnamed 

person. The pleading contains no further information connecting 

the two crimes. As such, appellant necessarily argues that we 

must also look to the preliminary hearing transcript. We decline 

to do so under Montoya and its progeny. “Consistent with the 

primary function of the accusatory pleading test—to determine 

whether a defendant is entitled to instruction on a lesser 

uncharged offense—we consider only the pleading for the greater 

offense.” (Montoya, supra, 33 Cal.4th at p. 1036; see also People 

v. Smith (2013) 57 Cal.4th 232, 244 [court “need only examine the 

accusatory pleading”]; People v. Chaney (2005) 131 Cal.App.4th 

253, 257 [“‘to determine whether a defendant is entitled to 

instruction on a lesser uncharged offense—we consider only the 
22

pleading for the greater offense’”].) Appellant’s reliance on People 

v. Ortega (2015) 240 Cal.App.4th 956, 968, which looked beyond 

the accusatory pleading, is therefore inapposite. (See People v. 

Macias (2018) 26 Cal.App.5th 957, 964 (rejecting Ortega’s

“‘expanded accusatory pleading test’” as contrary to Montoya).) 

Appellant next argues that, even if the uncharged crimes 

were lesser related rather than lesser included offenses, the trial 

court nevertheless erred in refusing to instruct on the elements of 

those offenses. He claims such instructions were necessary to 

allow the jury to compare the elements of the crimes to 

“determine whether the prosecution only proved some form of 

vehicular manslaughter instead of implied malice murder.” 

In essence, appellant contends that he has a right to have 

the jury instructed on the elements of uncharged crimes in order 

to urge the jury that he is not guilty of the charged offense but 

that he is guilty of something else. An accused is not “entitled to 

instructions on offenses for which he is not charged in order to 

urge the jury that he could have been convicted of something 

other than what is alleged.” (People v. Valentine, supra, 143 

Cal.App.4th at p. 1387.) Unsurprisingly, appellant cites no 

authority to support this proposition. Moreover, we note that 

while the court refused to instruct the jury on the elements of 

three uncharged lesser related offenses, it did allow defense 

counsel to argue about lesser charges that could have been 

brought. Defense counsel did so, arguing that there were “a 

myriad” of other crimes appellant could have been charged with, 

including manslaughter and gross vehicular manslaughter while 

intoxicated. As to each, he argued that appellant “did it; he is not 

charged with it.” In sum, we conclude appellant has failed to 
23

demonstrate error as to the trial court’s refusal to instruct the 

jury on the uncharged vehicular manslaughter offenses.

III. Defense Counsel’s Concession of Hit and Run

During his opening statement and closing argument, 

defense counsel conceded appellant’s guilt as to the second count 

of felony hit and run, focusing instead on the murder count. 

Appellant argues that his counsel’s concession was tantamount to 

a guilty plea on that count. Further, because the record is silent 

as to whether appellant knowingly waived his right to trial on the 

hit and run, he contends the absence of a valid waiver requires 

reversal. He asserts that this error infected his murder 

conviction as well. We conclude counsel’s concession was not the 

equivalent of a guilty plea; therefore, no waiver was required.

A. Factual background

Defense counsel’s opening statement included an 

unequivocal concession on the hit and run count. He stated that 

appellant “caused the accident. No dispute. And then he drove 

away.” A few moments later, he conceded, “As to the hit and run, 

he’s guilty of it; I’ll say that again at the end. There are no 

games being played here. . . . But he’s not guilty of murder.” The 

remainder of the defense opening statement focused on the 

murder charge.

Similarly, in closing argument, defense counsel focused 

solely on the murder charge, stating that as to the hit and run 

charge, “I’ve never disputed it. He’s guilty of it; he should be 

punished for it.” In her closing, the prosecutor noted that she 

would not “touch on the second count, the hit and run; I think 

that’s very obvious that he is guilty of that count.” 
24

B. Effect on hit and run conviction

“When a criminal defendant enters a guilty plea, the trial 

court is required to ensure that the plea is knowing and 

voluntary. [Citation.] As a prophylactic measure, the court must 

inform the defendant of three constitutional rights—the privilege 

against compulsory self-incrimination, the right to trial by jury, 

and the right to confront one’s accusers—and solicit a personal 

waiver of each.” (People v. Cross (2015) 61 Cal.4th 164, 170.) 

Accordingly, in the event of a guilty plea or other conduct 

tantamount to a plea, “the record must demonstrate that the 

defendant voluntarily and intelligently waived his constitutional 

trial rights.” (People v. Farwell (2018) 5 Cal.5th 295, 300 

(Farwell).)

The starting point for our analysis, therefore, is whether 

defense counsel’s concession of guilt during argument on the hit 

and run charge was tantamount to a guilty plea. If not, there 

was no error. If so, the concession was permissible only if based 

on a knowing and informed waiver by appellant of his right to 

trial on that count. (See McCoy v. Louisiana (2018) __U.S.__, 138 

S.Ct. 1500, 1508 (McCoy).)6

Respondent contends we are bound by our Supreme Court’s 

conclusion on a similar partial concession of guilt in People v. 

Cain (1995) 10 Cal.4th 1, 39 (Cain), overruled on other grounds 

in People v. Moon (2005) 37 Cal.4th 1, 17. We agree. In Cain, 

6Both McCoy and Farwell, supra, 5 Cal.5th 295 were 

published after the parties had completed briefing in this appeal. 

We granted appellant’s request to allow the parties to submit 

supplemental letter briefs addressing McCoy. We also requested 

and received supplemental briefing addressing Farwell. The 

parties provided additional discussion of both cases in their 

briefing on respondent’s request for rehearing.
25

defense counsel told the jury during argument that the defendant 

was guilty of burglary and multiple felony murder. (Id. at pp. 29-

30.) On appeal, the defendant argued that these statements were 

the equivalent of a guilty plea on those charges, and therefore 

that the trial court was required to obtain a plea waiver. (Id. at p. 

30.) The court rejected this argument, holding that “trial 

counsel’s decision not to contest, and even expressly to concede, 

guilt on one or more charges at the guilt phase of a capital trial is 

not tantamount to a guilty plea.” (Ibid.) The Supreme Court has 

reiterated this holding in numerous cases. (See People v. Lucas

(1995) 12 Cal.4th 415, 446 [“It is [ ] settled that counsel's 

concession of guilt on one or more charges at the guilt phase of a 

capital trial is not the equivalent of a guilty plea, requiring 

defendant's express waiver.”]; People v. Freeman (1994) 8 Cal.4th 

450, 497; People v. Griffin (1988) 46 Cal.3d 1011, 1029, 

disapproved on other grounds by People v. Riccardi (2012) 758, 

824, fn. 32, People v. Hendricks (1987) 43 Cal.3d 584, 592-594 

(Hendricks).)7

Appellant contends his counsel’s concession was the 

equivalent of a guilty plea on count two, arguing that the 

concession effectively admitted all of the elements of the hit and 

run and relieved the prosecution of its burden of proof on that 

count. He cites Farwell, supra, 5 Cal.5th 295 in support of this 

proposition. We find Farwell distinguishable. There, the 

7Appellant notes that these cases all are capital cases. 

While the relevant holdings are therefore in the context of the 

guilt phase of a capital trial, we see no basis to limit the holding 

to capital cases, nor has appellant suggested any. Appellant also 

asserts that these cases are factually and legally distinguishable, 

but has not identified any material distinguishing features. 
26

defendant was charged with gross vehicular manslaughter and 

misdemeanor driving with a suspended license. (Id. at p. 298.) 

During trial, the parties entered into a stipulation admitting all 

the elements of the misdemeanor charge; the court later 

instructed the jury that it must accept the stipulated facts as 

true. (Id. at pp. 298-299.) The court did not advise the defendant 

“of the constitutional rights implicated by a guilty plea or the 

stipulation. Nor did it solicit a personal waiver of those rights.” 

(Id. at p. 299.) Crucially, the Supreme Court found that a 

“stipulation that admits all of the elements of a charged crime 

necessary for a conviction is tantamount to a guilty plea.” (Ibid.) 

The court reasoned that Farwell’s “stipulation conclusively 

established the stipulated facts as true and completely relieved 

the prosecution of its burden of proof on count 2. While the jury 

was still required to return a verdict on that count, its limited 

function did not amount to a jury trial in the constitutional 

sense.” (Id. at p. 300.) Thus, because the stipulation conclusively 

established all of the elements of the misdemeanor, it made “the 

guilty verdict a foregone conclusion.” (Id. at pp. 307–308.) 

Conversely, here, there was no stipulation admitting the 

elements of the hit and run as an evidentiary matter. Instead, 

the jury was instructed that the prosecution had to prove guilt on 

all counts beyond a reasonable doubt and that statements by 

counsel were not evidence. Thus, the prosecution was still 

required to present “competent, admissible evidence establishing 

the essential elements” of each charge. (Florida v. Nixon (2004) 

543 U.S. 175, 188.) The prosecutor’s remark during closing 

argument that appellant’s guilt on the hit and run was “obvious” 

and decision not to argue the evidence on that count did not 
27

change the burden of proof, nor did it limit the scope of the jury’s 

role.

Appellant cites no authority extending the rationale of 

Farwell to a case such as this one, concerning a concession made 

during closing argument. Indeed, courts have repeatedly 

distinguished between such circumstances and a guilty plea or its 

equivalent. (See Florida v. Nixon, supra, 543 U.S. at p. 188 

[holding concession not tantamount to guilty plea because 

defendant “retained the rights accorded a defendant in a criminal 

trial”]; Boykin v. Alabama (1969) 395 U.S. 238, 242-243, and fn. 4 

[guilty plea is “more than a confession which admits that the 

accused did various acts,” it is a “stipulation that no proof by the 

prosecution need be advanced”]; cf. Brookhart v. Janis (1966) 384 

U.S. 1, 3 [waiver required where defense agreed that the 

prosecution need only prove a “prima facie case,” that the case 

would not be contested, and the defendant would not crossexamine witnesses].) As the court explained in Hendricks, supra,

43 Cal.3d 584, the rationale of the waiver requirement “‘is to

“assure that the record demonstrably discloses the defendant 

knows of and voluntarily waives the three specified rights . . .

surrendered by a guilty plea.” [Citations.] Th[is] mandate . . . 

applies only to pleas of guilty and situations tantamount to a plea 

of guilty. [Citation.] Nothing in our decisions . . . indicates that 

the principles expressed therein were intended to apply to jury 

trials, even where the evidence of guilt is overwhelming. When a 

defendant undergoes a jury trial any competent defense counsel 

will inform him of his right to call witnesses on his own behalf, of 

his right to testify or not to testify, and, in the absence of unusual 

circumstances, will cross-examine the witnesses for the 

prosecution.’” (Id. at p. 592.) As such, the waiver requirement 
28

“applies only when the defendant agrees to a submission 

procedure, such as a guilty plea or a submission on the 

preliminary hearing transcript, by virtue of which he surrenders 

one or more of the three specified rights. Second, there is no such 

surrender when the defendant undergoes - and thereby exercises 

his right to - a jury trial and has the opportunity to crossexamine the witnesses against him and to refuse to incriminate 

himself.” (Id. at pp. 592–593.) Here, the record reflects no such 

surrender of appellant’s rights; thus, we cannot conclude 

counsel’s concession was the equivalent of a guilty plea.

Appellant also argues that this case should be guided by 

McCoy, supra, 138 S.Ct. 1500. In McCoy, defense counsel 

informed defendant of his plan to concede guilt on the 

commission of three murders in an attempt to avoid a death 

sentence for defendant. (McCoy, supra, 138 S.Ct. at p. 1506.) 

The defendant insisted he did not commit the murders and 

adamantly objected to any admission of guilt. (Ibid.) During his 

opening statement and closing argument, over defendant’s 

objection, defense counsel told the jury the evidence was 

“unambiguous,” that defendant “committed three murders.” (Id. 

at p 1507.) 

The Supreme Court concluded that “counsel may not admit 

her client’s guilt of a charged crime over the client’s intransigent 

objection to that admission.” (McCoy, supra, 138 S. Ct. at p. 

1510.) As the McCoy court noted, “[s]ome decisions . . . are 

reserved for the client—notably, whether to plead guilty, waive 

the right to a jury trial, testify in one’s own behalf, and forgo an 

appeal.” (Id. at 1508.) 

Here, unlike in McCoy, there is no evidence that appellant 

raised any objection to his counsel’s decision to concede guilt on 
29

the hit and run charge. Nevertheless, appellant urges us to apply 

McCoy’s analysis of a defendant’s constitutional right to control 

the objectives of his or her own defense to cases, such as this one, 

where the defendant has not expressly raised an objection. We 

conclude such an extension is not supported by the controlling 

authority. In fact, the court in McCoy explicitly distinguished 

Florida v. Nixon, supra, 543 U.S. at p. 186, in which defense 

counsel several times explained to the defendant a proposed 

concession strategy, but the defendant was unresponsive. The 

Nixon court held that “when counsel confers with the defendant 

and the defendant remains silent, neither approving nor 

protesting counsel’s proposed concession strategy, ‘[no] blanket 

rule demand[s] the defendant’s explicit consent’ to 

implementation of that strategy.” (McCoy, supra, 138 S.Ct. at p. 

1505, quoting Nixon, supra, 543 U.S. at p. 192.)

This analysis is consistent with our Supreme Court’s 

holding in Cain, supra, 10 Cal.4th at p. 30 and similar cases. In 

Cain, the court held it was “not the trial court’s duty to inquire 

whether the defendant agrees with his counsel’s decision to make 

a concession, at least where, as here, there is no explicit 

indication the defendant disagrees with his attorney’s tactical 

approach to presenting the defense.” (Ibid., citing People v. 

Freeman, supra, 8 Cal.4th at p. 497; People v. Griffin, supra, 46 

Cal.3d at p. 1029; People v. Hendricks, supra, 43 Cal.3d at 593-

594; see also People v. Frierson (1985) 39 Cal.3d 80, 818, fn. 8 

[“nothing in this opinion is intended to suggest that - in the 

absence of such an express conflict [between defendant and 

counsel] - a court is required to obtain an on-the-record, personal 

waiver from the defendant”].) In sum, we have found no 

authority, nor has appellant cited any, allowing extension of 
30

McCoy’s holding to a situation where the defendant does not 

expressly disagree with a decision relating to his right to control 

the objective of his defense. 

Finally, to the extent appellant contends his counsel’s 

concessions constituted ineffective assistance of counsel, we are 

not persuaded. The court in Cain squarely rejected this 

argument, noting, “‘[t]o the extent defendant is arguing that it is 

necessarily incompetence for an attorney to concede his or her 

client’s guilt of murder [or burglary and murder as in this case], 

the law is otherwise.’ [Citation.] Furthermore, as pointed out 

above, the record does not demonstrate counsel ignored ‘any 

express wish on defendant’s part to present an active defense’ 

with regard to either the felony-murder or burglary counts.” 

(Cain, supra, 10 Cal.4th at pp. 30–31.) In addition, appellant 

cannot show that counsel’s decision was outside the range of 

reasonable tactical decisions, particularly given the largely 

undisputed evidence as to the hit and run charge and the 

seriousness of the murder charge. (See, e.g., People v. Freeman, 

supra, 8 Cal.4th at p. 498 [“Recognizing the importance of 

maintaining credibility before the jury, we have repeatedly 

rejected claims that counsel was ineffective in conceding various 

degrees of guilt.”].) This result is unchanged by appellant’s claim 

that the decision was unreasonable because of the “obvious 

‘implied malice’ implications” of the concession. We have already 

rejected the suggestion that the jury could have found implied 

malice to support the murder charge based on the same postaccident conduct supporting the hit and run charge.
31

Therefore, we affirm the conviction on the hit and run 

charge.8 

IV. Section 654 Error

Appellant argues that his convictions for hit and run 

driving and murder were based on the commission of “a single act 

of driving under the influence,” and therefore that the court 

should have stayed the sentence on his hit and run conviction 

under section 654. We disagree.

Section 654, subdivision (a), provides: “An act or omission 

that is punishable in different ways by different provisions of law 

shall be punished under the provision that provides for the 

longest potential term of imprisonment, but in no case shall the 

act or omission be punished under more than one provision.” It 

“precludes multiple punishments for a single act or indivisible 

course of conduct.” (People v. Hester (2000) 22 Cal.4th 290, 294.) 

The defendant’s intent and objective, not the temporal proximity 

of his or her offenses, determine whether multiple offenses 

constitute an indivisible course of conduct. (People v. Hicks

(1993) 6 Cal.4th 784, 789.) A defendant who acts pursuant to a 

single objective may be found to have harbored a single intent 

and therefore may be punished only once. (Ibid.) If, on the other 

hand, defendant harbored “multiple criminal objectives,” which 

were independent of and not merely incidental to each other, he 

may be punished for each statutory violation committed in 

pursuit of each objective, “even though the violations shared 

common acts or were parts of an otherwise indivisible course of 

8In light of this conclusion, we need not reach appellant’s 

argument that his counsel’s concession of guilt as to the hit and 

run charge requires reversal of the murder conviction.
32

conduct.” (People v. Beamon (1973) 8 Cal.3d 625, 639, 

disapproved on other grounds by People v. Mendoza (2000) 23 

Cal.4th 896.)

“The question whether section 654 is factually applicable to 

a given series of offenses is for the trial court, and the law gives 

the trial court broad latitude in making this determination. Its 

findings on this question must be upheld on appeal if there is any 

substantial evidence to support them.” (People v. Hutchins (2001) 

90 Cal.App.4th 1308, 1312; see also People v. Saffle (1992) 4 

Cal.App.4th 434, 438.) We view the evidence in the light most 

favorable to the sentence and presume in support thereof the 

existence of every fact the trier of fact reasonably could deduce 

from the evidence. (People v. Hutchins, supra, at pp. 1312-1313.)

In People v. Butler (1986) 184 Cal.App.3d 469 (Butler), the 

court rejected the application of section 654 under similar 

circumstances. There, the defendant was convicted of vehicular 

manslaughter and felony hit and run arising out of a drunk 

driving incident. (Id. at p. 471.) On appeal, he argued that he had 

engaged in “one indivisible course of conduct” by driving under 

the influence of alcohol, causing a fatal accident, and then fleeing 

the scene. (Id. at p. 472.) The court disagreed, concluding that 

there was “a divisible course of conduct based upon the intent 

and objective of defendant. . . . In the act of vehicular 

manslaughter, defendant was acting with general intent; he 

negligently drove a motor vehicle while under the influence of 

alcohol and caused a fatal accident. Defendant then violated 

Vehicle Code section 20001 by intentionally leaving the scene of 

the accident instead of remaining and rendering aid.” (Id. at pp. 

473-474.) The court found that defendant’s intent in fleeing the 
33

scene was “to flee in an attempt to conceal his identity and his 

state of inebriation.” (Id. at p. 474.)

Similarly, here, the evidence supports the conclusion that 

appellant acted with multiple objectives and therefore engaged in 

a divisible course of conduct. Indeed, appellant himself identified 

a different objective for count two—admitting to police that he 

fled the scene in order to avoid arrest because he had been 

drinking and driving.

Appellant argues that Butler is distinguishable because 

“the hit and run may have been used by the jury to establish 

implied malice.” We rejected appellant’s contention that the jury 

could have based the murder conviction on his act of leaving the 

crime scene in section II.B. ante. We find the court’s reasoning in 

Butler squarely applicable to this case. Accordingly, section 654 

does not preclude multiple punishment here.

V. Cumulative Error

Appellant also contends that the cumulative effect of the 

errors he has identified requires reversal of the murder 

conviction. Because we found no errors, we reject this claim.

DISPOSITION

The judgment is affirmed. 

COLLINS, J.

We concur:

MANELLA, P. J. MICON, J.*

*Judge of the Los Angeles Superior Court, assigned by the Chief 

Justice pursuant to article VI, section 6 of the California 

Constitution.