1

Filed 10/6/22 P. v. Barbero CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 

ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

JENNIFER BARBERO,

Defendant and Appellant.

 A160615

 (Alameda County

 Super. Ct. No. 17-CR-018430)

Defendant Jennifer Barbero struck and killed a man while driving 

under the influence (DUI) of alcohol and cocaine. Based on defendant’s 

history of multiple prior DUI arrests and convictions, the prosecution charged 

defendant with murder under a theory of implied malice pursuant to People 

v. Watson (1981) 30 Cal.3d 290 (Watson) (known as Watson murder), and a

jury found her guilty of second degree murder.

On appeal, defendant raises numerous challenges to her conviction. 

She contends she was deprived of her constitutional rights to equal protection 

and a representative jury because the prosecution exercised peremptory 

challenges against two prospective jurors based on their race. She argues she 

was deprived of her Fourth Amendment right against unreasonable searches

and seizures when the police, after trying and failing to obtain a warrant, 

had defendant’s blood drawn without a warrant. Defendant makes 

additional claims for violations of her right to due process, her Fifth 
2

Amendment right against self-incrimination based on police questioning at 

the time of arrest, and her Sixth Amendment right to confront one of the 

laboratory analysts who tested her blood, as well as claims of instructional 

error and prosecutorial misconduct. We find no prejudicial error, either 

individually or cumulatively, and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND1

On May 26, 2017, shortly after 10:00 a.m., David Nemeroff stood next 

to the open door of his silver sedan, which was parked on the shoulder of 

Isabel Avenue in Livermore. Witness Neal F.2 was driving southbound on 

Isabel Avenue when he saw Nemeroff standing by the silver car and looking 

at something in his hand. The car door was open but it was not blocking any 

lanes of traffic, and the vehicle’s hazard lights were flashing. Neal F. then 

saw a black sports utility vehicle (SUV) in the right hand lane approach the 

location of the silver car. “For some reason [the black SUV] swerved” to the 

right and hit the back left side of the silver car before continuing down the 

road. The force of the collision sent Nemeroff and his car door about 60 feet 

down the road. 

Tyler R. was driving on Isabel Avenue when he saw a car collision and 

“a man being flung in the air” with his “leg up in the air like a rag doll.” 

Tyler R. pulled over and called 911. He saw defendant come from the 

direction of the black SUV and access that vehicle. David E., an off-duty 

firefighter and paramedic, also stopped at the scene and attended to the 

1 Additional background facts relevant to the contentions on appeal are 

set forth in the corresponding sections of the Discussion, post.

2 Pursuant to California Rules of Court, rule 8.90(b), which governs 

privacy in opinions, we refer to the witnesses and prospective jurors either by 

their first name and first initial of their last name, or by their initials only. 

(Cal. Rules of Court, rule 8.90(b)(4), (10).)
3

injured man, who was unresponsive and bleeding from the head. David E. 

heard defendant “say to the effect of, ‘I didn’t mean to hit him. It was an 

accident.’ ” 

Nemeroff was eventually transported to a hospital where he died of 

complications from blunt force injuries. 

Livermore Police Officer Keith Pini arrived at the accident scene at 

around 10:30 a.m. He spoke with Livermore Police Sergeant Glen Robbins

and several witnesses before he was approached by defendant. Pini asked 

defendant if she was the driver of the black SUV, and she said she was. Pini 

did not initially notice any signs that defendant was intoxicated, but due to 

the severity of the collision and the information he received from Robbins, 

Pini asked defendant if she would submit to a blood draw to rule out any 

alcohol or drugs in her system. Defendant refused. 

Robbins detected the odor of alcohol on defendant’s breath and asked 

her to take off her sunglasses and follow his fingers with her eyes. Robbins 

observed involuntary jerking of defendant’s eyes, which was “a very common 

indicator when alcohol has been used or ingested,” and Pini noticed that 

defendant’s eyes were red and watery. Robbins asked defendant when she 

last had a drink, and she said 10:00 p.m. the prior day. 

Robbins directed Pini to conduct a DUI investigation. Pini 

administered four field sobriety tests: the horizontal gaze nystagmus (HGN) 

test; the modified Romberg test; the heel-to-toe walk; and the one leg stand. 

Based on her performance and other factors suggesting impairment,

defendant was arrested.

3 Pini then asked defendant once again if she would 

submit to a blood or breath test, and defendant again declined. 

3 Body camera footage of the arrest was admitted into evidence as 

People’s exhibit No. 11. Although the related transcript was not admitted, 
4

Defendant was taken to ValleyCare Medical Center where she was 

medically cleared of any injury. Meanwhile, Pini and Robbins attempted but 

were unable to reach the on-call judge or another judge who could issue a 

warrant for a blood draw. Approximately 45 minutes after the time of the 

arrest, Pini and Robbins made the decision to go forward with a warrantless 

blood draw. Defendant was taken to Santa Rita Jail, where her blood was 

drawn by a certified phlebotomist at approximately 1:19 p.m. Twenty 

minutes later, the requested warrant was issued by the Honorable Michael J. 

Gaffey. 

On June 1, 2017, two vials of defendant’s blood were received at 

Central Valley Toxicology, Inc. (CVT). Bioanalyst Alan Barbour utilized a 

gas chromatograph coupled with a flame ionization detector to perform 

alcohol testing, and CVT director Bill Posey performed drug testing. A 

toxicology analysis dated June 6, 2017, reported the presence of cocaine in 

the sample and a blood alcohol content (BAC) of 0.13 percent. A second 

blood-alcohol analysis performed by Posey in January 2019 revealed a BAC of 

0.11 percent. 

Defendant was charged by information with one count of murder (Pen. 

Code, § 187, subd. (a)). A jury trial was held in January 2020. During its 

case in chief, the prosecution presented evidence of defendant’s three prior 

DUI-related arrests and convictions in 2008, 2014, and 2015. The relevant 

details were as follows.

In January 2008, defendant pleaded no contest to one count of 

misdemeanor DUI (Veh. Code, § 23152, subd. (a).) Her plea agreement 

both parties quote from the transcript in their respective briefs. We do 

likewise, as our review of the video footage confirms the accuracy of the 

transcript.
5

contained a signed “Watson admonishment” stating: “You are hereby advised 

that being under the influence of alcohol or drugs, or both, impairs your 

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 you continue to drive while under the influence of alcohol or drugs, or both, 

and, as a result of that driving, someone is killed, you can be charged with 

murder.” Defendant was also ordered to attend an outpatient drug and 

alcohol recovery program called Second Chance, Inc. (Second Chance). 

In February 2014, defendant pleaded no contest to misdemeanor “wet 

reckless” charges (Veh. Code, §§ 23103, 23103.5). The 2014 plea agreement 

included a signed Watson admonishment identical to the one in the 2008 plea 

agreement. 

In October 2015, highway patrol officers responded to a report of a 

traffic collision. They found an unoccupied vehicle on the road and defendant 

sleeping in a bush. She exhibited signs of intoxication, including smelling of 

alcohol, red and watery eyes, and unsteadiness. After defendant refused to 

perform any field sobriety tests, she was placed under arrest for DUI and 

transported to a hospital where a certified phlebotomist performed a blood 

draw. Gas chromatograph testing performed by Barbour revealed a BAC of 

0.19 percent.4

The jury found defendant guilty of second degree murder, and the trial 

court sentenced her to 15 years to life in state prison. This timely appeal 

followed. 

4 Defendant was eventually convicted of a “wet reckless” in connection 

with the 2015 arrest, but the trial court granted defendant’s motion in limine 

to exclude evidence of that conviction. 
6

DISCUSSION

A. Batson-Wheeler Motion

Defendant contends she was deprived of her rights to equal protection 

and a representative jury because the prosecution exercised peremptory 

challenges against prospective jurors M.I. and F.W. on the basis of their race. 

We conclude the trial court did not err in finding that defendant failed to 

make a prima facie showing of discriminatory intent.

1. Background

There were 82 prospective jurors present for voir dire. In their written 

questionnaires, four prospective jurors identified their race or ethnic group as 

“Black,” “Black American,” or “African American.” 

M.I. described her racial or ethnic group as “mixed.” She indicated that 

she was a public school teacher and had gone to a “jail, prison, or juvenile 

detention facility” to “visit a student.” In response to question 30, which 

asked “[w]hat comes to mind when you think of” police officers, prosecutors, 

and defense attorneys, M.I. left the space blank for police officers and defense 

attorneys but wrote “law and order” for prosecutors. Regarding her feelings 

about the fairness of the criminal justice system, M.I. wrote that it “depends 

on the place/time/other specifics.” 

F.W. described his race as “Black.” He indicated he had been 

previously “accused, arrested or prosecuted” for “carrying a loaded weapon 

pistol.” In response to question 30, F.W. wrote that he associated police 

officers with “searching me & my car for nothing.” His opinion of prosecutors 

was “not good,” and his opinion of defense attorneys was “somewhat good.” 

He felt the criminal justice system was “not good for black people” and also 

indicated he had uncomfortable or negative feelings toward “Hispanics” and 

“White people.” 
7

Neither M.I. nor F.W. was among the first 12 venirepersons to sit in 

the jury box during voir dire. M.I. was eventually called to replace the initial 

venireperson in seat number 9. The trial court asked M.I. if she wanted to 

amend or supplement her questionnaire and if she could think of any reason 

why she could not be fair and impartial. She answered no to both questions. 

Neither side asked M.I. any questions before the prosecution excused her. 

M.I. was replaced by a venireperson who was excused for hardship, followed 

by Juror no. 9.

5

For the next several rounds, the prosecution passed on its peremptory 

strikes while the defense struck several venirepersons before F.W. was called 

to seat number 8. The prosecutor asked F.W. whether his prior experience 

with law enforcement would influence him as a juror, and he responded, 

“No.” Asked whether he was “going to think [law enforcement] were 

targeting a suspect or arresting them for no reason,” F.W. responded, “In this 

case? [¶] . . . . [¶] No, ma’am.” The prosecutor then asked F.W. why he felt 

“ ‘[n]ot good’ ” about prosecutors, and he responded, “Because he took my gun. 

I think he took it personally.” Asked if his “feelings about prosecutors” were

“targeted toward that specific prosecutor that you dealt with on that case,” 

F.W. responded, “No, don’t know him.” The following exchange then 

occurred:

“Q. . . . . So given what happened to you, that’s a general feeling for 

everyone in the district attorney’s office.

“A. It could be.

“Q. Is it?

“A. It could be.

5 Juror no. 9 was one of two Black venirepersons, along with Juror

no. 11, ultimately seated on the jury. 
8

“Q. Okay. So that’s a possibility for me that I’m going to be 

potentially, or, I could be lumped in with that opinion since I work for the 

same people? 

“A. Everybody has gotta have a job.” 

The prosecutor rephrased the question, asking whether F.W. was 

“going to hold it against me what happened to you.” This time, F.W. 

responded, “I don’t hold anything against you. I don’t really know you.” F.W. 

further stated that his past experiences would not be imputed to the 

prosecutor or influence the way he saw her presenting evidence in this trial. 

Asked if he would hesitate to give a guilty verdict if the prosecution met its 

burden and proved everything to him beyond a reasonable doubt, F.W. 

responded, “Could be.” When asked why, F.W. stated, “If the evidence was, 

you know, if the evidence came out and everything and we decided then, you 

know, I would have to come to that conclusion.” The prosecutor then asked, 

“you wouldn’t hesitate to do that if I did everything I should,” and F.W. 

responded, “No, I wouldn’t hesitate.” 

The defense asked no questions before the prosecution excused F.W. 

Defense counsel then lodged a Batson-Wheeler challenge,

6 arguing that F.W. 

had been excused because he was Black. The trial court stated, “Are there—

I’m trying to remember if there were any other African-American members 

who had been excused, and I can’t.” The prosecutor responded, “There hasn’t 

been.” The court then remarked (in apparent reference to Juror no. 9), 

“We’ve got one other African-American juror who’s sitting right next to 

[F.W.]” 

6 Batson v. Kentucky (1986) 476 U.S. 79, People v. Wheeler (1978) 22 

Cal.3d 258 (Wheeler).
9

Defense counsel responded, “I believe [M.I.] is African-American.” The 

trial court noted that M.I. had self-identified as “mixed,” and that although 

she was “dark complected,” the court could not “say with confidence what 

mixed races she comes from.” Defense counsel responded, “To me, it’s clear 

that she’s some percentage black. Now, I don’t know if it’s 20 percent, 40 

percent, or 60 percent. I don’t know if anybody knows that, but what she 

says, mixed race, and by looking at her, I could see that she was partially 

black. I believe this is the second African-American juror excused by the 

prosecution, and they all—both those two prospective jurors answered all of 

the questions correctly, not that that means the prosecutor wants to keep 

them.” 

The trial court found that defendant had not made a prima facie case of 

discrimination as to M.I. and then turned its attention to F.W. The court 

found that although F.W. gave “basically all the right answers,” he “played 

everything close to the vest, and that he did express different attitudes about 

both prosecutor and defense lawyer when questioned about it, then he really 

started playing it close to the vest. And, frankly, based on that alone, I was 

expecting him to get challenged by [the prosecutor]. And, frankly, it doesn’t 

appear to me it had anything to do with race.” The court denied the BatsonWheeler motion. 

2. Analysis

“The purpose of peremptory challenges is to allow a party to exclude 

prospective jurors who the party believes may be consciously or unconsciously 

biased against him or her.” (People v. Jackson (1992) 10 Cal.App.4th 13, 17–

18.) A valid peremptory challenge may be based on “the obviously serious to 

the apparently trivial, from the virtually certain to the highly speculative.”

(Wheeler, supra, 22 Cal.3d at p. 275.) However, “[b]oth the United States and 
10

California Constitutions prohibit the exercise of peremptory strikes on the 

basis of race or ethnicity.” (People v. Battle (2021) 11 Cal.5th 749, 772.) 

“Excluding by peremptory challenge even ‘a single juror on the basis of race 

or ethnicity is an error of constitutional magnitude.’ ” (People v. Gutierrez

(2017) 2 Cal.5th 1150, 1172 (Gutierrez).)

“The now familiar Batson-Wheeler inquiry consists of three distinct 

steps. First, the opponent of the strike must make out a prima facie case by 

showing that the totality of the relevant facts gives rise to an inference of 

discriminatory purpose in the exercise of peremptory challenges. Second, if 

the prima facie case has been made, the burden shifts to the proponent of the 

strike to explain adequately the basis for excusing the juror by offering 

permissible, nondiscriminatory justifications. Third, if the party has offered 

a nondiscriminatory reason, the trial court must decide whether the opponent 

of the strike has proved the ultimate question of purposeful discrimination.” 

(People v. Scott (2015) 61 Cal.4th 363, 383 (Scott).)

“Although the question at the first stage concerning the existence of a 

prima facie case depends on consideration of the entire record of voir dire as 

of the time the motion was made [citation], we have observed that certain 

types of evidence may prove particularly relevant. [Citation.] Among these 

are that a party has struck most or all of the members of the identified group 

from the venire, that a party has used a disproportionate number of strikes 

against the group, that the party has failed to engage these jurors in more 

than desultory voir dire, that the defendant is a member of the identified 

group, and that the victim is a member of the group to which the majority of 

the remaining jurors belong. [Citation.] A court may also consider 

nondiscriminatory reasons for a peremptory challenge that are apparent from 
11

and ‘clearly established’ in the record [citations] and that necessarily dispel 

any inference of bias.” (Scott, supra, 61 Cal.4th at p. 384.)

“ ‘ “We review a trial court’s determination regarding the sufficiency of 

a prosecutor’s justifications for exercising peremptory challenges ‘ “with great 

restraint.” ’ [Citation.] We presume that a prosecutor uses peremptory 

challenges in a constitutional manner and give great deference to the trial 

court’s ability to distinguish bona fide reasons from sham excuses. [Citation.] 

So long as the trial court makes a sincere and reasoned effort to evaluate the 

nondiscriminatory justifications offered, its conclusions are entitled to 

deference on appeal.” ’ ” (People v. O’Malley (2016) 62 Cal.4th 944, 975 

(O’Malley).)

Defendant contends that the “numbers” support a prima facie case of 

discriminatory intent here because at the time of her Batson-Wheeler motion, 

the prosecution had excused two out of three Black venirepersons. We will 

assume for the sake of this argument that M.I. is properly included in this 

total. But even so, the absolute size of the sample in question is still too 

small to infer discriminatory intent. Courts have often “found it 

‘ “impossible,” ’ as a practical matter, to draw the requisite inference where 

only a few members of a cognizable group have been excused and no indelible 

pattern of discrimination appears.” (People v. Garcia (2011) 52 Cal.4th 706, 

747, citing People v. Bonilla (2007) 41 Cal.4th 313, 342–343 [no prima facie 

showing where prosecutor excused two Black venirepersons leaving none in 

78-person pool]; see also People v. Johnson (2019) 8 Cal.5th 475, 507–508 

(Johnson) [assigning “no great weight” to exclusion of three of six Black 

venirepersons]; People v. Parker (2017) 2 Cal.5th 1184, 1212 (Parker) [no 

prima facie showing even assuming prosecutor struck only two Black 

venirepersons in jury pool given small sample size].)
12

The cases cited by defendant are distinguishable. In Castellanos v. 

Small (9th Cir. 2014) 766 F.3d 1137, 1147, the defendant’s prima facie 

showing was not disputed. In Fernandez v. Roe (9th Cir. 2002) 286 F.3d 1073 

(Fernandez), Turner v. Marshall (9th Cir. 1995) 63 F.3d 807 (Turner), and 

Gutierrez, supra, 2 Cal.5th 1150, the courts were presented with considerably 

larger sample sizes. (See Fernandez, at p. 1078 [four of seven Hispanic

members and two Black members stricken]; Turner, at p. 812 [five of nine 

Black members stricken]; Gutierrez at p. 1154 [10 of 16 Hispanic members 

stricken].) Notably, Fernandez found that the prosecution’s striking of the 

only two Black members was insufficient “standing alone” to support an 

inference of discrimination, but combined with the number of Hispanic 

members stricken, gave rise to a prima facie case. (Fernandez, at pp. 1078–

1079.) Similarly, the excusal here of two of three Black members of the jury 

pool, standing alone, did not support an inference of discrimination. In light 

of this small sample size, we can assign no great weight to the numbers 

themselves. (Johnson, supra, 8 Cal.5th at pp. 507–508.)

We further observe that the prosecutor did not use a disproportionate 

number of peremptory strikes against the group in question. (See People v. 

Bell (2007) 40 Cal.4th 582, 597–598 [no disproportionate use where only two 

of prosecutor’s 16 strikes were exercised against Black women].) By our 

count, the prosecutor used a total of 15 peremptory strikes, and defendant 

contends only two of these prospective jurors (M.I. and F.W.) were Black.

Furthermore, insofar as defendant’s numerical analysis is premised on 

two Black venirepersons having been excluded from the jury, it is relevant to 

our consideration of the totality of the circumstances that the trial court 

found M.I.’s race or ethnicity to be inconclusive. M.I. identified herself in her 

juror questionnaire as “mixed” without further elaboration, and the court, 
13

based on its own observations of M.I., could not say that she was part Black. 

While we acknowledge the difficulties and subjectivity inherent in any 

attempt to identify the races of a person of mixed race based solely on their 

appearance, on a cold appellate record such as this, where the trial court was 

able to observe M.I.’s appearance firsthand in a way we cannot, we must give 

“great deference” to the court’s ability to ferret out discriminatory intent. 

(O’Malley, supra, 62 Cal.4th at p. 975.)

Defendant argues it was undisputed that M.I. was part Black because 

after defense counsel made this claim, “[f]rom that point forward the 

prosecutor did not contest defense counsel’s claim . . . or voice any 

disagreement with counsel’s statement.” The transcript, however, clearly 

reflects that the prosecutor had already taken the position that she did not 

consider M.I. to be Black when she told the trial court “[t]here [hadn’t] been” 

any Black members excused prior to F.W. This was not a case where a 

prospective juror of “mixed” race was regarded as Black in appearance 

“without disagreement from the prosecutor.” (See People v. Harris (2013) 57 

Cal.4th 804, 859, fn. 1 (conc. opn. of Kennard, J.).)

Also relevant to our consideration of the totality of the circumstances is 

the fact that after M.I. was excused, she was eventually replaced by Juror 

no. 9, who was Black. The prosecution then passed on Juror no. 9 for several 

rounds before the defense lodged its Batson-Wheeler motion, and the juror

was ultimately seated (along with another Black member) on the jury. Citing 

People v. Snow (1987) 44 Cal.3d 216, defendant cautions against placing too 

much significance on the prosecution’s willingness to pass on one Black juror, 

as this would, in Snow’s words, “provide an easy means of justifying a pattern 

of unlawful discrimination which stops only slightly short of total exclusion.” 

(Id. at p. 225.) But Snow clarified that the passing of certain jurors “is not a 
14

conclusive factor” and may still “be an indication of the prosecutor’s good 

faith in exercising his peremptories” and “an appropriate factor for the trial 

judge to consider.” (Ibid.) Here, we recognize that the prosecution’s 

acceptance of Juror no. 9 at the time of F.W.’s dismissal, as well as the 

ultimate seating of two Black persons on the jury, are among the totality of 

relevant facts supporting the determination that defendant failed to make a 

prima facie showing of discriminatory intent.

As for F.W., defendant argues that the trial court impermissibly 

speculated as to the prosecutor’s motives for striking him. While the trial 

court did not ask the prosecutor to state her reasons for excusing F.W., it 

does not follow that the court engaged in impermissible speculation. Our 

Supreme Court has made clear that a prima facie case may be found lacking 

where “the record discloses readily apparent, race-neutral grounds for a 

prosecutor to use peremptory challenges.” (People v. Rhoades (2019)

8 Cal.5th 393, 430 (Rhoades).) “[W]hen the record of a prospective juror’s voir 

dire or questionnaire on its face reveals a race-neutral characteristic that any 

reasonable prosecutor trying the case would logically avoid in a juror, the 

inference that the prosecutor was motivated by racial discrimination loses 

force. ” (Id. at p. 431; see Scott, supra, 61 Cal.4th at p. 384.)

Here, F.W.’s questionnaire responses provided readily apparent, raceneutral grounds for his excusal, as he openly expressed negative sentiments 

towards law enforcement and prosecutors based on personal experience. 

When the prosecutor gave F.W. the opportunity to clarify his remarks during 

voir dire, he gave responses that, at times, served to exacerbate the 

prosecutor’s reasonable concerns. For instance, in response to questions 

about whether his negative sentiments applied to “everyone in the district 

attorney’s office,” he twice responded, “It could be.” Asked whether he might 
15

“hesitate to give a guilty verdict if [the prosecution] met [its] burden and 

proved everything to [him] beyond a reasonable doubt,” F.W. again

responded, “Could be.” Although F.W. eventually walked back some of these 

statements when pressed, the trial court, based on its observations of F.W., 

remarked that his responses were “close to the vest.” Deferring to the trial 

court’s observations, we conclude on this record that any reasonable 

prosecutor would have seen fit to excuse F.W. (Rhoades, supra, 8 Cal.5th at 

pp. 430–431.)

Defendant contends the trial court’s “close to the vest” comment 

demonstrates its consideration of evidence that is presumptively invalid 

under Code of Civil Procedure section 231.7, subdivision (g)(1)(A)–(C). She 

acknowledges, however, that the statute did not apply to this trial. (See Code 

Civ. Proc., § 231.7, subd. (i) [section applies only to trials in which jury 

selection began on or after January 1, 2022].) In any event, we fail to see how 

the cited portions of the statute apply here, as F.W. was not excused for being 

“inattentive, or staring or failing to make eye contact,” “exhibit[ing] either a 

lack of rapport or problematic attitude, body language, or demeanor,” or 

giving “unintelligent or confused answers.” (Code Civ. Proc., § 231.7, 

subd. (g)(1)(A)–(C).) Rather, the trial court’s “close to the vest” comment 

appeared to reflect its view that F.W.’s cautious testimony did not assuage 

concerns about the negative sentiments he expressed in his questionnaire. 

Furthermore, the statutory presumption of invalidity does not apply if “the 

trial court is able to confirm that the asserted behavior occurred, based on 

the court’s own observations.” (Code Civ. Proc., § 231.7, subd. (g)(2).) Here, 

the trial court’s remark was based on its own observations of F.W. Thus, 
16

even if it were applicable to this trial, Code of Civil Procedure section 231.7, 

subdivision (g), would not support a finding of error.

7

Finally, defendant argues that a comparative juror analysis supports a 

prima facie case of bias. Comparative juror analysis involves “side-by-side 

comparisons” of “ ‘ “[s]imilarly situated” ’ ” stricken and seated jurors. 

(Miller-El v. Dretke (2005) 545 U.S. 231, 241, 291 (Miller-El).) “The rationale 

for comparative juror analysis is that a side-by-side comparison of a 

prospective juror struck by the prosecutor with a prospective juror accepted 

by the prosecutor may provide relevant circumstantial evidence of purposeful 

discrimination by the prosecutor.” (People v. DeHoyos (2013) 57 Cal.4th 79, 

109.) If the prosecutor’s proffered reason for striking a minority panelist 

applies just as well to a similar nonminority who is permitted to serve, this 

may tend to prove purposeful discrimination. (Miller-El, at p. 241.) Although 

some courts have declined to conduct a comparative juror analysis at the first 

Batson-Wheeler stage (see, e.g., Parker, supra, 2 Cal.5th at p. 1213), the 

Supreme Court has clarified that “juror comparisons can play a role” at this 

stage of the analysis. (Rhoades, supra, 8 Cal.5th at p. 432, fn. 17.)

7 Defendant also makes reference to Code of Civil Procedure section 

231.7, subdivision (e)(1), which presumptively invalidates a peremptory 

challenge based on a prospective juror’s expression of “distrust of or having a 

negative experience with law enforcement or the criminal legal system” 

unless “the party exercising the peremptory challenge can show by clear and 

convincing evidence that an objectively reasonable person would view the 

rationale as unrelated to a prospective juror’s race, ethnicity,” or other 

specified characteristic, “and that the reasons articulated bear on the 

prospective juror’s ability to be fair and impartial in the case.” Once again, 

the statute did not apply to this trial (Code Civ. Proc., § 231.7, subd. (i)), and 

even if it did, for the reasons already discussed, the prosecutor’s readily 

apparent grounds for excusing F.W. bore on his ability to be fair and 

impartial in this case and did not appear related to F.W.’s race.
17

Defendant argues that a comparison between F.W. on the one hand, 

and Juror no. 2, Juror no. 6, and Darren B. on the other, raises an inference 

of purposeful discrimination because like F.W., the latter three individuals

all had prior criminal histories.8 But this argument quickly falls apart for 

Darren B., who was not a seated juror and, in fact, was excused by the 

prosecution. As for Juror no. 2 and Juror no. 6, their questionnaires disclosed 

no negative opinions or feelings towards law enforcement and prosecutors.

9

Accordingly, the prosecution’s readily apparent reasons for striking F.W. 

simply did not apply to Juror no. 2 and Juror no. 6.

Defendant contends that Juror no. 5’s response to question 30 should 

have prompted further questioning from the prosecution. But Juror no. 5 

simply stated that he did not “know any [prosecutors] for context.” Notably, 

he described no negative feelings or experiences with law enforcement or 

prosecutors. Thus, the prosecutor’s failure to question Juror no. 5 does not 

“negate the force of” the readily apparent, nondiscriminatory reasons for 

excusing F.W. (Rhoades, supra, 8 Cal.5th at p. 432.)

In sum, defendant fails to demonstrate that the totality of relevant 

circumstances gave rise to an inference of discriminatory purpose in the 

prosecution’s exercise of peremptory challenges against M.I. and F.W. The 

Batson-Wheeler motion was properly denied.

8 Juror no. 2 indicated he was once “[h]eld for DUI” and made a related 

court appearance in 1976. Juror no. 5 stated he was arrested for trespassing 

when he was in his twenties, but the record was “expunged.” Darren B. 

indicated he was “sent to arbitration in 1997” for vandalism. 

9 In response to question 30, Juror no. 2 wrote “protect” for his feelings 

towards police officers, and “trial” for his feelings towards prosecutors and 

defense attorneys. Juror no. 6 wrote “law enforcement” for his feelings about 

police officers, “N/A” for prosecutors, and “MONEY!” for defense attorneys. 
18

B. Fourth Amendment

Defendant argues she was deprived of her Fourth Amendment right 

against unreasonable searches and seizures when the police had her blood 

drawn without a warrant. We conclude exigent circumstances justified the 

warrantless blood draw.

1. Background

Defendant moved to suppress the blood sample evidence as having been 

obtained without a warrant in violation of the Fourth Amendment. The 

motion was heard before Judge Gaffey over the course of several days 

between January and March 2019. 

Officer Pini testified that while defendant was at ValleyCare Medical 

Center being checked for possible injuries, he began writing an affidavit for a 

warrant on the Consolidated Records Information Management System 

(CRIMS), a computerized warrant application system. He submitted an 

application at 12:22 p.m. Pini testified that “[u]sually, within 5 or 10 

minutes, either the judge answers immediately or he calls you back after he’s 

reviewed it and looks over everything.” On this occasion however, Pini 

received no response after 15 minutes, so he contacted the Alameda County 

Sheriff’s Department dispatcher, but the dispatcher would not provide the 

direct phone number for the on-call judge prior to 5:00 p.m. 

Pini explained the situation to Sergeant Robbins, and the two contacted 

the nearby courthouse in Pleasanton to try and find another judge to review 

the warrant application. Robbins made contact with the Honorable Joe 

Carson and the Honorable Roy Hashimoto, but the former did not have access 

to CRIMS, and the latter had forgotten his password. Robbins made further 

“attempts to contact other judges from outside jurisdictions” but “due to the 

lunch hour” was “unable to locate any.” 
19

Pini testified that he was concerned “about losing evidence” because 

“the body metabolizes [alcohol] and the blood alcohol rate goes down” over 

time, and 45 minutes had already elapsed since the time of defendant’s 

arrest. Pini estimated that in order to submit a paper warrant application, 

he would have had to drive for 20 to 30 minutes to the Livermore Police 

Department, spend another 30 minutes to prepare a paper application, and 

then drive for another 20 to 25 minutes to the Pleasanton courthouse to file 

it. Pini and Robbins “decided that based on all the attempts that we’ve made 

and the fact that the blood draw search warrant hadn’t been signed at that 

time, we decided to go ahead and do the blood draw.” 

Pini transported defendant to Santa Rita Jail, and the blood draw took 

place at 1:19 p.m. Thereafter, at 1:39 p.m., Judge Gaffey issued the 

requested search warrant. 

The trial court denied defendant’s motion to suppress, finding that 

Pini’s actions in ordering the warrantless blood draw were not unreasonable. 

Specifically, Judge Gaffey found that Pini was “working through the process 

that he knows to deal with the court in obtaining a warrant. It seems 

reasonable to the court. His conduct seems reasonable. The timing how that 

he’s three hours out, he’s probably looking at his watch going now we’re three 

hours out so I know the blood is dissipating and I want to get the blood before 

it gets any worse.” Judge Gaffey further noted that “most courts close from 

12:00 to 2:00” and that the trial court here “dropped the ball” by “not having 

somebody available who is going to sign it.” Although Judge Gaffey disagreed 

with Pini’s estimate of 30 minutes to complete a paper warrant application, 

he generally agreed that with additional travel time, “about another hour” 

would be lost in order to file a paper warrant, during which the alcohol in 
20

defendant’s blood would have continued to dissipate, and critical evidence 

could have been lost. 

2. Analysis

On review from the denial of a motion to suppress, we defer to the 

factual findings by the trial court that are supported by substantial evidence, 

and we independently review the reasonableness of the search and seizure 

under the federal Constitution. (People v. Meza (2018) 23 Cal.App.5th 604, 

609 (Meza).) 

The Fourth Amendment to the United States Constitution safeguards 

the right to be free from unreasonable searches and seizures by requiring 

that law enforcement first obtain a search warrant supported by probable 

cause. A blood draw is a search for Fourth Amendment purposes. (Birchfield 

v. North Dakota (2016) 579 U.S. 438.) A warrantless search is per se 

unreasonable unless the People prove that the search comes within a 

recognized exception to the warrant requirement. (People v. Laiwa (1983) 34 

Cal.3d 711, 725.) One such “exception applies when ‘ “the exigencies of the 

situation” make the needs of law enforcement so compelling that [a] 

warrantless search is objectively reasonable under the Fourth Amendment.’ ” 

(Kentucky v. King (2011) 563 U.S. 452, 460.) Such exigencies include where 

law enforcement must render emergency assistance inside a home; enter 

premises in hot pursuit of a fleeing suspect; or “ ‘prevent the imminent 

destruction of evidence.’ ” (Ibid.) 

In Schmerber v. California (1966) 384 U.S. 757 (Schmerber), the United 

States Supreme Court held that a compulsory blood draw constituted a 

search for Fourth Amendment purposes, but concluded the warrantless blood 

draw at issue did not violate the Fourth Amendment because time had 

already been lost while the responding officer took the DUI suspect to the 
21

hospital and investigated the accident. (Id. at pp. 770–772.) In so 

concluding, the court reasoned that the police officer “might reasonably have 

believed that he was confronted with an emergency” justifying an exception 

to the warrant requirement because “the percentage of alcohol in the blood 

begins to diminish shortly after drinking stops.” (Id. at p. 770.)

In Missouri v. McNeely (2013) 569 U.S. 141 (McNeely), the high court 

revisited Schmerber and reaffirmed that the natural dissipation of alcohol in 

the blood may, in some circumstances, constitute an exigency justifying a 

warrantless blood draw. (McNeely, at pp. 151–153.) McNeely, however, 

refused to adopt a per se warrant exception in every DUI case and instead 

held that whether “a warrantless blood test of a drunk-driving suspect is 

reasonable must be determined case by case based on the totality of the 

circumstances.” (Id. at p. 156.) In rejecting a per se exception, McNeely

noted that post-Schmerber advances in technology allow for “more 

expeditious processing of warrant applications,” for example, judicial 

consideration of warrant applications by telephone or other electronic means 

and the use of standard warrant applications in DUI cases. (Id. at pp. 154–

155.) Significantly, however, McNeely recognized that “improvements in 

communications technology do not guarantee that a magistrate judge will be 

available when an officer needs a warrant” and that “exigent circumstances 

justifying a warrantless blood sample may arise in the regular course of law 

enforcement due to delays from the warrant-application process.” (Id. at 

pp. 155–156.)

Contrary to defendant’s contentions, here is such a case. Despite the 

availability of CRIMS, which allows electronic warrant applications to be 

reviewed and warrants issued quickly, the officers here were unable to 

connect with the on-call judge. The officers then made direct calls to nearby 
22

courthouses, seeking a judge who could review the application and issue a

warrant, all to no avail. Pini decided not to file a paper warrant application, 

which as the trial court later determined, would have taken “about another 

hour” to process. Meanwhile, approximately 45 minutes had elapsed since 

defendant’s arrest, and several hours since the collision itself, with no clear 

indication as to when defendant had last consumed alcohol. In sum, the 

delay resulting from the officers’ earnest but unsuccessful attempts through 

CRIMS and other avenues to obtain a warrant, combined with the continuing 

dissipation of alcohol in defendant’s blood, amounted to exigent 

circumstances that justified the warrantless blood draw in this case. 

(McNeely, supra, 569 U.S. at p. 156.)

Defendant’s authorities and arguments to the contrary are 

unpersuasive. For instance, in Meza, supra, 23 Cal.App.5th 604, Division 

Two of this court held that exigent circumstances were lacking where several 

police officers responded to the scene of a DUI accident, but none attempted

to obtain a warrant before the suspect’s blood was drawn. (Id. at pp. 611–

612.) But here, Pini and Robbins did what was found lacking in Meza—they 

“tried to get a timely warrant but failed.” (Ibid.)

Defendant argues that Pini should have known that a warrant would 

issue shortly after 1:00 p.m. when the lunch hour ended. We disagree. On 

review, an officer’s “judgments about whether the warrant process would 

produce unacceptable delay under the circumstances” is assessed “ ‘ “from the 

perspective of a reasonable officer on the scene, rather than with the 20/20 

vision of hindsight.” ’ ” (McNeely, supra, 569 U.S. at p. 158, fn. 7.) On this 

score, we defer to Judge Gaffey’s observation that the courthouse was 

generally closed from 12:00 p.m. to 2:00 p.m. And viewing the circumstances 

from a reasonable officer’s perspective, given the passage of time and the 
23

various attempts already made to obtain a warrant, we conclude it was not 

unreasonable for Pini to harbor doubts that a warrant might issue in time to 

preserve the necessary evidence.

Defendant argues that the record is silent as to where Judge Gaffey 

was assigned when he received Pini’s warrant application, and what other 

bench officers were aware of and available to sign the warrant application. 

On this last point, the record does in fact indicate that two other judges were 

made aware of the warrant application but were unable to access CRIMS to 

review it. But more importantly, any lack of additional detail in the record 

regarding the trial court’s delay in acting on the warrant application does not 

undermine the reasonableness of the officers’ belief that they faced an 

exigency justifying the warrantless blood draw based on the circumstances 

outlined above.

In sum, the trial court did not err in denying defendant’s motion to 

suppress the blood sample evidence.

C. Fifth Amendment

Defendant argues that her responses to two questions by Officer Pini at 

the time of her arrest—“Were you not driving that car” and “Did you know if 

you drink and drive and you kill somebody that . . . [¶] . . [¶] . . . you can be 

charged for murder”—were taken in violation of her rights under the Fifth 

Amendment and Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). While 

we agree that the un-Mirandized statements should not have been admitted, 

we conclude the error was harmless beyond a reasonable doubt.

1. Background

After Officer Pini informed defendant that he was placing her under 

arrest, defendant repeatedly asked, “Are you serious,” or words to that effect. 

She also stated at one point, “Okay, I’ll finding [sic] my lawyer right now,” to 
24

which Pini responded, “That’s fine.” Defendant continued to ask Pini

whether he was being serious, and their exchange continued. After 

explaining to defendant that she was under arrest for DUI, Pini asked, “Do 

you wanna listen,” and defendant responded, “No. . . [¶] . . . [¶]. . . I actually 

don’t.” The following exchange then occurred.

“Q: Were you not driving that car?

“A: Absolutely.

“Q: You were driving that car, right?

“((Crosstalk))

“A: Yes.

“Q: Okay. Well you can’t drink and drive.

“A: Uh, yeah, ar—are you being serious?

“Q: Did you know if you drink and drive and you kill somebody that. . . 

“A: Uh, hello. . . 

“Q: . . . you can be charged for murder?

“A: Uh, absolutely.

“Q: Okay, all right.

“A: Okay I’m calling my lawyer like. . .

“Q: That’s fine.

“A: . . . immediately.

“Q: And you’re completely entitled to that.” 

The prosecution moved in limine to admit defendant’s post-arrest 

statements and defendant moved to suppress them. The trial court held an 

evidentiary hearing during which Pini testified that he did not advise 

defendant of her Miranda rights “[b]ecause she continued to speak,” but that 

he was not trying to elicit incriminating statements from her. Rather, he 
25

asked the challenged questions because defendant appeared to be in shock, 

“almost like she didn’t know that she was driving the car.” 

The trial court agreed that Pini was simply responding to defendant’s 

expressions of incredulity and was not conducting a custodial interrogation

for Fifth Amendment purposes. The court found that defendant “just 

[couldn’t] believe, ‘Are you guys really serious?’ She’s treating it like you 

can’t be serious. And I think what he’s doing, it appears to me this is not an 

interrogation that’s intended to elicit incriminating statements. This is his 

way by using questions, almost like rhetorical questions that turned out not 

to be, but to impress on her how serious he really is. And even though she’s 

clearly in custody, under the circumstances I don’t think it’s the sort of thing 

that should be excluded on Fifth Amendment grounds.” 

2. Analysis

“The Fifth Amendment privilege against self-incrimination requires 

officers to inform criminal suspects, before questioning, of their right to 

remain silent, and that statements made may be used against them in court. 

[Citation.] That right attaches during a custodial ‘interrogation.’ ” (People v. 

Tousant (2021) 64 Cal.App.5th 804, 821 (Tousant), citing Miranda, supra, 

384 U.S. at p. 479.) “[T]he term ‘interrogation’ under Miranda refers not only 

to express questioning, but also to any words or actions on the part of the 

police (other than those normally attendant to arrest and custody) that the 

police should know are reasonably likely to elicit an incriminating response 

from the suspect.” (Rhode Island v. Innis (1980) 446 U.S. 291, 300–301, 

fn. omitted (Innis).) “Failure to administer Miranda warnings creates a 

presumption of compulsion. Consequently, unwarned statements that are 

otherwise voluntary within the meaning of the Fifth Amendment must 
26

nevertheless be excluded from evidence under Miranda.” (Oregon v. Elstad

(1985) 470 U.S. 298, 307.)

“Whether an interrogation occurred is determined by ‘an objective test 

according to which we “analyze the total situation which envelops the 

questioning by considering such factors as the length of the interrogation, the 

place and time of the interrogation, the nature of the questions, the conduct 

of the police and all other relevant circumstances.” ’ [Citation.] ‘Not every 

question directed by an officer to a person in custody amounts to an 

“interrogation” requiring Miranda warnings. The standard is whether 

“under all the circumstances involved in a given case, the questions are 

‘reasonably likely to elicit an incriminating response from the suspect.’ ” 

[Citation.] This is an objective standard. “The subjective intent of the 

[officer] is relevant but not conclusive. [Citation.] The relationship of the 

question asked to the crime suspected is highly relevant.” ’ ” (Tousant, supra, 

64 Cal.App.5th at p. 822.)

We can accept that Pini’s subjective intent in asking the challenged 

questions may have been simply to convey in rhetorical fashion why he was 

placing defendant under arrest. But that intent is not conclusive of the 

matter (Tousant, supra, 64 Cal.App.5th at p. 822), and other objective factors 

supported the reasonable likelihood that Pini’s questions would elicit an 

incriminating response. Defendant was under arrest for DUI, and the 

challenged questions went beyond what was “normally attendant to arrest 

and custody.” (Innis, supra, 446 U.S. at pp. 300–301.) Significantly, the 

questions related factually to her culpability as the driver of the vehicle that 

was seen hitting the victim. Furthermore, because Pini saw that the victim 

had suffered severe trauma, his question regarding defendant’s knowledge 

that she could be charged with murder if she killed someone while driving 
27

drunk related to her subjective state of mind for purposes of a Watson murder

charge. (See Watson, supra, 30 Cal.3d at pp. 296–297 [implied malice 

requires finding that defendant “actually appreciated” risk of danger to 

human life while driving intoxicated].)

Contrary to the People’s contentions, defendant’s repeated expressions 

of incredulity did not invite Pini’s questioning in light of her earlier 

statements that were inconsistent with a present willingness to discuss the 

case. Notably, defendant told Pini early on that she wanted to contact her 

lawyer, and just before Pini asked the challenged questions, defendant stated 

that she did not want to listen. Where a defendant “indicates in any manner”

and at any stage of the process a desire to consult with an attorney before 

speaking, “the interrogation must cease.” (Miranda, supra, 384 U.S. at 

pp. 473–474.) Because defendant was under arrest, a Miranda advisement

should have been given before she was asked any questions reasonably likely 

to elicit incriminating responses. Moreover, Pini should have stopped his 

questioning after defendant indicated she wanted to contact her lawyer.

“The erroneous admission of a defendant’s statements obtained in 

violation of the Fifth Amendment is reviewed for prejudice under the beyond 

a reasonable doubt standard of Chapman v. California (1967) 386 U.S. 18

[(Chapman)]. [Citations.] That test requires the People here ‘to prove 

beyond a reasonable doubt that the error complained of did not contribute to 

the verdict obtained.’ ” (People v. Elizalde (2015) 61 Cal.4th 523, 542.) That 

is to say, the error was “ ‘unimportant in relation to everything else the jury 

considered on the issue in question, as revealed in the record.’ [Citation.] 

Thus, the focus is what the jury actually decided and whether the error might 

have tainted its decision. That is to say, the issue is ‘whether the . . . verdict 

actually rendered in this trial was surely unattributable to the error.’ ” 
28

(People v. Neal (2003) 31 Cal.4th 63, 86, (Neal).) “Another way to phrase the 

Chapman test is this: ‘ “Is it clear beyond a reasonable doubt that a rational 

jury would have found the defendant guilty absent the error?” ’ ” (People v. 

Delgado (2018) 27 Cal.App.5th 1092, 1109 (Delgado).)

Our review of the record satisfies us that the Miranda error was 

harmless beyond a reasonable doubt. As for defendant’s response to Pini’s 

first question, the record reflects that defendant voluntarily told Pini well 

before her arrest that she was the driver of the black SUV. Defendant does 

not contend that this pre-arrest statement was made during a custodial 

interrogation or taken in violation of the Fifth Amendment. Meanwhile, 

multiple witnesses at the scene identified defendant as the driver of the black 

SUV. Simply put, defendant’s identity as the driver of the car that hit 

Nemeroff was not disputed.

As for defendant’s response to Pini’s second question, the erroneous 

admission of this evidence was unimportant in relation to everything else the 

jury properly considered on the issue in question. (Neal, supra, 31 Cal.4th at 

p. 86.) Specifically, the jury was presented with defendant’s prior convictions 

in 2008 (misdemeanor DUI) and 2014 (wet reckless) and the related plea 

agreements which contained signed Watson admonitions reflecting 

defendant’s explicit acknowledgement that if she killed someone while 

driving intoxicated, she could be charged with murder. The jury also heard 

testimony that defendant attended Second Chance courses after her 2008 

DUI conviction. “[E]vidence that a defendant has suffered a prior conviction 

and participated, as a condition of probation, in some form of alcohol 

education program which emphasized the dangers of driving while 

intoxicated is relevant to prove the accused’s awareness of the life 

threatening risks caused by his conduct.” (See People v. Brogna (1988) 202 
29

Cal.App.3d 700, 709.) None of this evidence was in factual dispute, and 

defendant offered no theory countering their evidentiary value.

On this record, it is clear beyond a reasonable doubt that a rational 

jury would have come to the same verdict absent the Miranda error. 

(Delgado, supra, 27 Cal.App.5th at p. 1109.)

D. Sixth Amendment Right of Confrontation

Defendant argues that the admission of testimony and evidence 

regarding her June 2017 and January 2019 blood tests violated her Sixth 

Amendment right of confrontation because the reports contained testimonial 

statements by a non-testifying witness (Alan Barbour) whom defendant had 

no opportunity to cross-examine. We conclude the errors were harmless 

beyond a reasonable doubt, and we reject defendant’s ineffective assistance 

claim based on her counsel’s failure to object to certain exhibits.

1. Background

Defendant moved in limine to exclude evidence of the June 2017 bloodalcohol analysis on confrontation grounds because Barbour would not be 

testifying at trial. The trial court denied the motion. 

At trial, Bill Posey testified as an expert in forensic toxicology. He

described the testing of defendant’s blood samples that he and Barbour 

performed in June 2017 as follows.

On June 1, 2017, CVT received two vials of defendant’s blood. Posey 

performed a drug screen, which revealed the presence of cocaine and its 

metabolites in defendant’s blood. 

Barbour, who “overs[aw] the alcohol department” at CVT, performed 

the alcohol testing on defendant’s blood sample and determined her BAC was

0.13 percent. Barbour utilized “a gas chromatograph that was coupled with a 

flame ionization detector.” After describing the gas chromatography process, 
30

Posey explained he had access to and reviewed Barbour’s reports, notes, and 

computer- generated data from the June 2017 test, and he (Posey) confirmed 

it was the same process he had described in his testimony. Posey opined that 

for a hypothetical individual who stopped drinking alcohol at 10:00 a.m. and 

who had blood drawn at 1:15 p.m. of the same day, “you theoretically would 

be adding a .03 to a .06 to [the test result] level to estimate what was there at 

10 [a.m.]” 

In addition to explaining the gas chromatography process, Posey 

described the laboratory’s method of setting “known controls and standards” 

before samples were tested. Posey reviewed records, notes, and data on the 

accuracy testing process and saw nothing to suggest the June 2017 test 

results were inaccurate. The laboratory also kept “a forensic alcohol work log 

that is filled out as the analyses are being performed, and the results from 

the printed report are transcribed to that work log, and it is evaluated to 

verify that everything was transcribed properly as well as the transcription 

to the work card. [¶] Once the analysis is completed, the work card is given 

to clerical staff in which they enter the information of the final result of the 

analysis into the computer, but that is then brought back to not only the 

analyzing individual, but also a set of other eyes, toxicologists, to review the 

report.” 

Once Posey and Barbour completed testing on defendant’s blood 

sample, a report was generated, which they both reviewed and signed before 

its submission to the Livermore Police Department. 

Posey further testified regarding the circumstances that led to the 

second blood-alcohol analysis in January 2019. Because Barbour had retired 

and refused to testify, the district attorney asked CVT to retest defendant’s 

blood “so that someone else could testify, if needed.” Posey performed the 
31

retesting in January 2019, using the second of the two vials of defendant’s 

blood. The second test showed a BAC of 0.11 percent. Posey explained that

the second result was “slightly lower” than the first because of “equilibration 

of the sample within its vial,” meaning there is “always a space of air” within 

a vial of blood and “[an] equilibrium that will adjust over time between the 

alcohol that’s in the sample and the space that the air is present.” 

2. Analysis

The Sixth Amendment gives a criminal defendant the right to confront 

and cross-examination adverse witnesses. (People v. Lopez (2012) 55 Cal.4th 

569, 576 (Lopez).) In Crawford v. Washington (2004) 541 U.S. 36, 59, the 

United States Supreme Court held that the confrontation clause prohibits the 

admission of testimonial statements made by a non-testifying witness unless 

the witness is unavailable, and the defendant had a prior opportunity for 

cross-examination. To be “testimonial,” the out-of-court statement “must 

have been made with some degree of formality or solemnity,” and its primary 

purpose must “pertain[] in some fashion to a criminal prosecution.” (Lopez,

at pp. 581–582.)

The People concede, and we agree, that the June 6, 2017, report 

constituted a testimonial statement under Crawford. The report was made 

with the necessary formality, as it bore the signatures of Barbour and Posey, 

each “certify[ing], under penalty of perjury, that [the report] is a true and 

correct copy of results of the analysis on blood or urine obtained during the 

regular course of my duties.” (See Bullcoming v. New Mexico (2011) 564 U.S. 

647, 665 (Bullcoming) [certified laboratory report that referred to state court 

rules regarding admission of blood-alcohol analyses was testimonial]; 

Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305, 310–311 [sworn 

certificates of laboratory analysts were testimonial].) The report also 
32

indicated that the agency requesting the blood analysis was the Livermore 

Police Department, reflecting that the report’s primary purpose pertained to 

a criminal prosecution. (Lopez, supra, 55 Cal.4th at pp. 581–582.)

The People contend, however, that Posey was an adequate substitute 

for Barbour for confrontation clause purposes because he personally hired 

Barbour; the two worked together prior to and at CVT for many years; and 

they each reviewed the final June 6, 2017, report before signing it. The 

People rely for this position on the concurring opinion of Justice Sotomayor in 

Bullcoming.

In Bullcoming, the United States Supreme Court addressed whether an 

individual who did not perform a laboratory analysis could testify as to the 

results. The testing in question was a gas chromatograph analysis performed 

and certified by a non-testifying analyst (Caylor), but the prosecution did not 

call Caylor to testify and instead introduced the test results through Razatos, 

who was familiar with the laboratory’s procedures but had not participated in 

or observed the testing in question. (Bullcoming, supra, 564 U.S. at pp. 651, 

655.) Justice Ginsberg delivered a four-part plurality opinion holding that 

the surrogate’s testimony did not meet constitutional muster. Part II of the 

Bullcoming decision, which garnered a majority of the court (with the 

exception of a footnote), explained that Razatos’s testimony was insufficient 

for confrontation clause purposes because despite being qualified as an expert 

on gas chromatography and the laboratory’s procedures, Razatos “could not 

convey what Caylor knew or observed about the events his certification 

concerned, i.e., the particular test and testing process he employed. Nor 

could such surrogate testimony expose any lapses or lies on the certifying 

analyst’s part.” (Id. at pp. 661–662, fn. omitted.) Justice Ginsburg also noted 
33

that the prosecution did not assert that Razatos had given an independent

opinion concerning the test results. (Id. at p. 662.)

In a concurring opinion, Justice Sotomayor made several observations 

“to emphasize the limited reach of the Court’s opinion.” (Bullcoming, supra, 

564 U.S. at p. 668 (conc. opn. of Sotomayor, J.).) As relevant here, Justice 

Sotomayor observed, “this is not a case in which the person testifying is a 

supervisor, reviewer, or someone else with a personal, albeit limited, 

connection to the scientific test at issue. . . . It would be a different case if, for 

example, a supervisor who observed an analyst conducting a test testified 

about the results or a report about such results.” (Id. at pp. 672–673.) 

Justice Sotomayor also noted that Bullcoming was not a case where “an 

expert witness was asked for his independent opinion about underlying 

testimonial reports that were not themselves admitted in evidence,” and did 

not involve “only machine-generated results, such as a printout from a gas 

chromatograph.” (Id. at p. 673.)

Based on the foregoing, we cannot agree with the People that the 

instant matter presents “precisely the case, posited by Justice Sotomayor.” 

Posey did not testify that he was “a supervisor who observed [Barbour] 

conducting” the test in question. (Bullcoming, supra, 564 U.S. at p. 673, 

italics added.) Rather, Posey testified that Barbour “overs[aw] the alcohol 

department” and, in connection with the June 2017 testing of defendant’s 

sample, performed the alcohol testing while Posey performed the drug 

testing. Posey’s general testimony regarding the gas chromatographic 

process and the laboratory’s procedures did not convey what Barbour actually 

knew or observed during the June 2017 test. And though the language of the 

signed certification clause established that Posey certified the results of the 
34

drug testing that he personally performed, it did not purport to represent his 

certification of Barbour’s blood-alcohol test results.

Although Posey testified he reviewed Barbour’s notes, records, and 

computer-generated data from the June 2017 test in preparation for his 

testimony, the details of those records were not disclosed at trial. Thus, we 

cannot make the necessary inference that Posey’s preparatory review gave 

him the ability to convey what Barbour “knew or observed about the events 

his certification concerned,” or to “expose any lapses or lies” on Barbour’s 

part. (Bullcoming, supra, 564 U.S. at pp. 661–662; see People v. Ogaz (2020) 

53 Cal.App.5th 280, 293 [surrogate could not be effectively cross-examined as 

to what analyst saw or how she interpreted information her testing produced

because gas chromatographic testing requires subjective analysis].) 

Accordingly, the record fails to demonstrate that Posey was a sufficient 

surrogate for Barbour.

Nevertheless, we conclude any confrontation clause error was harmless 

because it is “clear beyond a reasonable doubt that a rational jury would have 

reached the same verdict absent the error.” (People v. Loy (2011) 52 Cal.4th 

46, 69–70; see People v. Arredondo (2019) 8 Cal.5th 694, 709 [violations of 

confrontation clause subject to Chapman harmless error analysis].) As the 

record reflects, the jury had before it Posey’s second and independent bloodalcohol test that he performed in January 2019, which showed a BAC of 0.11 

percent. (See Lopez, supra, 55 Cal.4th at p. 584 [assumed confrontation 

clause error was harmless because testifying witness gave independent 

opinion “reflecting his ‘separate abilities as a criminal analyst’ ” that

defendant’s BAC exceeded legal limit].) Although Posey’s test result was 

slightly lower than Barbour’s test result, it still showed a BAC well in excess 

of the legal limit. (Veh. Code, § 23152, subd. (b).) 
35

We acknowledge that the prosecutor drew the jury’s attention to the 

0.13 percent result several times during opening and closing arguments. But 

the prosecutor told the jury it could apply either “the .13 percent or even the 

.11 percent” to the DUI instruction. Thereafter, the prosecutor argued that 

“the reasonable conclusion you’re allowed to draw from her blood being at 

least .11 percent is it’s way over .08.” Thus, the jury was presented with the 

0.11 percent result as a fully independent basis for a finding of impairment. 

Defendant does not argue that the jury was urged to place additional weight 

on the fact that two blood tests showed a BAC above the legal limit, and our 

review of the prosecutor’s opening remarks and closing argument discloses no 

effort to tout the combined effect of the two test results. On this record, we 

are satisfied beyond a reasonable doubt that the jury would have returned 

the same verdict in the absence of the June 2017 report and Posey’s related 

testimony.

10

Defendant raises an additional challenge to the admission of People’s 

exhibits nos. 3-D8, D9, and D10, arguing that these exhibits contained 

information derived from Barbour’s testing. Defendant acknowledges that 

10 Our conclusion is not affected by defendant’s suggestion that the test 

results may have skewed high because Posey could not say whether the 

samples were refrigerated prior to delivery. Even assuming for the sake of 

argument that the samples were not refrigerated, Posey’s testimony on this 

score did little, if anything, to suggest short-term nonrefrigeration increased 

the BAC in defendant’s samples. To the contrary, Posey explained that 

nonrefrigeration could speed up the equilibration process, thereby lowering

the alcohol level. While Posey also acknowledged that nonrefrigeration could 

lead to the growth of organisms that convert sugars to alcohol, he testified 

this possibility was “minimal” given the use of a preservative, and that it 

would only happen in the “long term,” with no “measurable” affect in the 

short term, e.g., “within a five-day period.” Here, the record reflects that 

CVT received defendant’s blood samples six days after the blood was drawn 

and immediately refrigerated them until testing. 
36

she forfeited any claim of error on Sixth Amendment grounds by not objecting 

to the exhibits below. (See People v. Burgener (2003) 29 Cal.4th 833, 869.) 

However, she contends her counsel’s failure to object constituted ineffective 

assistance. 

To prevail on her ineffective assistance claim, defendant must show 

that her counsel’s performance was deficient, and that the deficient 

performance prejudiced her defense. (Strickland v. Washington (1984) 466 

U.S. 668, 687–694 (Strickland).) To establish prejudice, defendant must 

show that there is a reasonable probability that, but for counsel’s errors, the 

result of the proceeding would have been different. (Id. at pp. 693–694.) In 

order to determine whether counsel’s failure to object was ineffective and/or 

prejudicial, we must address the merits of defendant’s Sixth Amendment 

claims. (People v. Osband (1996) 13 Cal.4th 622, 693 (Osband).)

People’s exhibits nos. 3-D8 and D9 contained copies of Posey’s second 

and third reports from the blood-alcohol analysis that he performed in 

January 2019. Because Posey was a testifying witness at trial, the admission 

of these reports raised no confrontation clause problems. Accordingly, a Sixth

Amendment objection to these two exhibits would have been futile, and 

counsel’s omission did not constitute ineffective assistance. (See People v. 

Diaz (1992) 3 Cal.4th 495, 562.)

Exhibit 3-D10 was a toxicology report by Barbour dated October 28, 

2015, showing defendant’s BAC to be 0.19 percent in a prior incident. The 

prosecution had offered this exhibit as part of its efforts to establish that 

defendant acted with implied malice in committing the instant offense. For 

the same reasons discussed above, we conclude that the report was 

testimonial in nature and that Posey was not an adequate surrogate to 
37

satisfy the confrontation clause.

11 Nevertheless, counsel’s failure to object on 

Sixth Amendment grounds to this one exhibit and Posey’s related testimony 

was harmless. Even if defense counsel had successfully objected, the 

prosecution had presented other evidence including the responding officer’s 

testimony regarding the visible signs of defendant’s intoxication during the 

2015 arrest; the evidence of defendant’s prior DUI convictions in 2008 and 

2014; and the plea agreements containing defendant’s signed Watson

admonishments. This was ample evidence establishing that defendant

“actually appreciated” the hazards and legal consequences of drunk driving to 

support the element of implied malice. (Watson, supra, 30 Cal.3d at pp. 296–

297.) Accordingly, it is not reasonably probable that the results would have 

been different absent counsel’s failure to object to the October 2015 report

and related testimony. (Strickland, supra, 466 U.S. at pp. 693–694.)

In sum, we conclude that any error in the admission of the testimony 

and exhibits regarding Barbour’s June 2017 toxicology test was harmless 

beyond a reasonable doubt. We also conclude that defense counsel’s failure to 

object was not ineffective as to People’s exhibit nos. 3-D8 and D9, and was 

harmless as to exhibit no. 3-D10.

E. Due Process

Defendant contends she was deprived of due process and a fair trial 

when (1) the prosecutor commented on her refusals to consent to having her 

blood drawn; and (2) the trial court permitted Pini to testify as to the 

statistical probability of defendant’s intoxication based on her performance

on the field sobriety tests. We find no due process violations.

11 The October 2015 report was certified only by Barbour, and Posey did 

not testify that he personally observed Barbour’s performance of the test. 
38

1. Comment on Refusal to Consent to Blood Draw

a. Background

Defendant moved in limine to exclude evidence of her refusal to consent 

to a blood draw, arguing that her refusal to do so was irrelevant and that she 

had the right to refuse “prior to [her] arrest.” The prosecutor argued that 

even if her refusal was “pre-arrest,” it was still “admissible as consciousness 

of guilt.” The trial court ruled that because defendant had refused “multiple 

requests for blood,” both before and after her arrest, the court was “not going 

to exclude the one before the arrest, because I think it’s essentially of no 

consequence, because she’s done it multiple times.” 

At trial, Pini testified that shortly after contacting defendant, and prior 

to placing her under arrest, defendant refused to submit to a voluntary blood 

draw. Later, after placing defendant under arrest, Pini asked defendant if 

she would submit to a breath test or blood draw, and she refused.

Defendant’s sister, Stephanie S., testified at trial that during a jail 

telephone call after the arrest, defendant explained that she did not want to 

take an alcohol test because she had been drinking before.

During closing arguments, the prosecutor argued to the jury that 

“there’s even more evidence to show you that she was under the influence. 

This comes by the way of her refusal to take the blood test. And you were 

instructed on this instruction for consciousness of guilt.” The prosecutor 

continued, “If the defendant refused to submit to such a test after being 

asked to take it by a police officer, then the defendant’s conduct may show 

that she was aware of her guilt. She didn’t want to take the test because she 

knows it was going to show that she had been drinking and doing drugs. 

That’s why she didn’t want to take the test. It shows she knew that she was 

guilty. She was guilty of driving while under the influence, and she didn’t 
39

want more proof against her to show that. She didn’t want that scientific 

evidence to show that against her.” 

b. Analysis

In People v. Sudduth (1966) 65 Cal.2d 543 (Sudduth), our Supreme 

Court held that a jury instruction and commentary by the prosecution on a 

defendant’s refusal to submit to breathalyzer and field sobriety tests were 

“constitutionally admissible.” (Id. at pp. 545–546.) As the court explained, 

“The sole rationale for the rule against comment on a failure to testify is that 

such a rule is a necessary protection for the exercise of the underlying 

privilege of remaining silent [citation]. A wrongful refusal to cooperate with 

law enforcement officers does not qualify for such protection. A refusal that 

might operate to suppress evidence of intoxication, which disappears rapidly 

with the passage of time [citation], should not be encouraged as a device to 

escape prosecution.” (Id. at p. 546.) In so concluding, Sudduth relied on 

People v. Ellis (1966) 65 Cal.2d 529, 536–537, which held that evidence of a 

defendant’s refusal to take a voice identification test was similar to other 

types of circumstantial evidence of consciousness of guilt, such as escape from 

custody, and did not violate the Fifth Amendment.

12

Failing to address Sudduth, defendant relies instead on cases involving 

the right to refuse to consent to a search of one’s home. (See People v. Keener

(1983) 148 Cal.App.3d 73, 78 [evidence of defendant’s refusal to consent to 

search of home erroneously admitted to show consciousness of guilt]; People 

12 Although Sudduth did not involve blood testing, Justice Traynor noted 

that blood testing in DUI cases was “an evidence-gathering technique 

recently approved in” Schmerber. (Sudduth, supra, 65 Cal.2d at p. 546.) On 

this score, Schmerber held that the Fifth Amendment did not bar compelled 

blood testing for a motorist suspected of DUI because blood is physical 

evidence, and testing it did not compel the motorist to incriminate himself. 

(Schmerber, supra, 384 U.S. at pp. 761–765.)
40

v. Wood (2002) 103 Cal.App.4th 803, 808–809 [same]; Camara v. Municipal 

Court of San Francisco (1967) 387 U.S. 523, 540 [lessee could “not 

constitutionally be convicted for refusing to consent” to warrantless 

inspection by city housing inspectors].) But these cases are not controlling in 

light of Sudduth and other authorities permitting consciousness of guilt 

evidence based on a defendant’s refusal to provide blood or other exemplars. 

(See Sudduth, supra, 65 Cal.2d at pp. 546–547; People v. Farnam (2002) 28 

Cal.4th 107, 164 [permitting instruction on consciousness of guilt on refusal 

to provide hair and blood samples in accordance with court order]; Marvin v. 

Department of Motor Vehicles (1984) 161 Cal.App.3d 717, 720 [DUI suspect’s 

refusal to take field sobriety test was evidence of consciousness of guilt].)

An exception to the general admissibility of such refusal evidence exists 

where there is a statutory right to refuse the test in question; otherwise, the 

exercise of that right would be rendered meaningless. (See People v. Zavala

(1966) 239 Cal.App.2d 732, 736–737, 740–741 [error to instruct on 

consciousness of guilt for refusal to take Nalline drug test because prior

Health & Saf. Code, § 11723 conferred right to refuse].) Thus, in People v. 

Jackson (2010) 189 Cal.App.4th 1461 (Jackson), a previous panel of this court 

held it was error to admit evidence of a defendant’s refusal to take a 

preliminary alcohol screening (PAS) breath test because the defendant had 

an express statutory right under the implied consent law to refuse a PAS 

test. (Jackson, at pp. 1467–1469, citing Veh. Code, § 23612, subds. (h), (i).)

But the implied consent law does not confer a statutory right to a 

lawfully arrested motorist to refuse chemical testing of their blood or breath. 

To the contrary, the statute provides that “[a] person who drives a motor 

vehicle is deemed to have given his or her consent to chemical testing of his 

or her blood or breath for the purpose of determining the alcoholic content of 
41

his or her blood, if lawfully arrested for” a DUI offense. (Veh. Code, § 23612, 

subd. (a)(1)(A), (B).) Although the implied consent law “implicitly grants a 

suspect the right not to consent to a test,” the exercise of that implied right 

“will have consequences” (People v. Lopez (2020) 46 Cal.App.5th 317, 326), 

including fines, driver’s license suspension, or imprisonment if convicted. 

(Veh. Code, § 23612, subd. (a)(1)(D).) Moreover, “the refusal may be used 

against him or her in a court of law.” (Id., subd. (a)(4).) In short, the implied 

consent law provides no exception to the general admissibility of refusal 

evidence regarding chemical testing of breath and blood for motorists 

lawfully arrested for DUI.

Defendant argues that because the implied consent law applies only to 

motorists who are “lawfully arrested” for a DUI (see, e.g., Veh. Code, § 23612, 

subds. (a)(1)(A), (B), (d)), the jury never should have heard the evidence of her 

pre-arrest refusal to submit to a blood draw. But Sudduth did not rely on the 

circumstance of a lawful arrest to justify comment on a DUI defendant’s 

refusal to submit to physical testing, nor did Sudduth hold that a defendant’s 

refusal to submit to testing prior to arrest is inadmissible.

In any event, even assuming for the sake of argument that the 

statutory phrase “lawfully arrested” provides a limiting principle, and that 

the trial court should have granted, in part, defendant’s motion in limine as 

to the evidence of her pre-arrest refusal, we conclude the assumed error and 

related prosecutorial commentary did not infect the entire trial with such 

unfairness as to deny defendant due process. (See People v. Partida (2005) 37 

Cal.4th 428, 439 [“the admission of evidence, even if erroneous under state 

law, results in a due process violation only if it makes the trial fundamentally 

unfair”]; People v. Bell (1989) 49 Cal.3d 502, 534 [same re prosecutorial 

conduct].) Here, evidence of defendant’s post-arrest refusal to consent to the 
42

blood draw was properly admitted to show consciousness of guilt (Veh. Code, 

§ 23612, subd. (a)(4); Sudduth, supra, 65 Cal.2d at pp. 546–547), and the 

prosecutor did not emphasize the pre-arrest statement over the post-arrest 

one. On this record, the state law error did not rise to the level of a due 

process violation.

2. Statistical Probability Evidence

a. Background

At trial, Officer Pini described the field sobriety tests he administered 

to defendant and his observations of her performance. For the HGN test, 

Pini looked for involuntary jerking of defendant’s eyes as she tracked a pen 

that he moved in front of her. Pini testified that “if there’s four or more clues 

in doing the nystagmus test that you have an 88 percent probability that 

they’re a .08 or greater.” Pini saw six “clues” when conducting the HGN test 

on defendant. 

For the modified Romberg test, Pini asked defendant to tilt her had 

back, close her eyes, and estimate when 30 seconds had elapsed. Pini 

testified that the “standard” was “usually plus or minus 10 seconds within 

the 30 seconds,” but defendant “believed 30 seconds had passed when only 12 

seconds had passed.” 

For the heel-to-toe (or walk and turn) test, Pini instructed defendant to 

walk nine steps forward on an imaginary line, heel to toe and arms down to 

her sides, before pivoting and returning in the same fashion. The “clues” of 

impairment included starting too soon, not touching heel to toe, stepping off 

the line, raising arms, and losing balance. Pini explained that two clues 

would “show[] it as a 79 percent probability that they were a .08 or greater,” 

and Pini observed four clues during defendant’s performance of this test. 
43

For the one leg stand test, Pini had defendant stand on one leg with her 

arms down and her other leg six inches off the ground while pointing the toe 

and looking at it. Pini testified that the probability of intoxication with two 

or more clues on this test was “83 percent,” and with defendant, he observed 

three clues. 

Pini testified that he learned how to perform the field sobriety tests 

based on guidelines from the National Highway Traffic Safety 

Administration, and that his testimony regarding the probabilities of 

impairment were based on a study conducted by “seven California institute

[sic].”13

b. Analysis

Defendant argues that Pini’s testimony on the statistical probabilities 

of her intoxication based on her performance on the field sobriety tests 

deprived her of due process and invaded the province of the jury. The People 

respond that this claim is, in substance, a challenge to the scientific validity 

and reliability of the field sobriety tests under People v. Kelly (1976) 17 

Cal.3d 24 (Kelly) and Frye v. United States (D.C.Cir. 1923) 293 F. 1013, and 

that defendant forfeited this claim by failing to object below. Defendant’s 

challenge does not appear based on Kelly-Frye, but on the principle that field 

sobriety test results can only be used as circumstantial, not direct, evidence 

of intoxication. As we understand the briefing, defendant contends that 

Pini’s use of statistics gave him “unearned credibility” and constituted 

improper direct evidence that defendant’s BAC was beyond the legal limit, a 

finding that invaded the province of the jury. On these particular points, we 

13 There was no further clarification in the record as to the exact name of 

this organization. Defendant suggests that Pini said or meant to say the 

Southern California Research Institute. 
44

agree that defendant’s failure to object at trial forfeited review of her claim 

on appeal. (People v. Anderson (2020) 9 Cal.5th 946, 961.)

Even were we to overlook the forfeiture, we are not persuaded that 

defendant was deprived of due process.

We begin by noting that in People v. Joehnk (1995) 35 Cal.App.4th 

1488, 1507–1508 (Joehnk), the court held that HGN testing was generally 

accepted in the relevant scientific community as reliable for purposes of 

Kelly-Frye. In so holding, Joehnk clarified that “there is no claim HGN 

testing alone can determine whether a suspect is under the influence of 

alcohol nor determine a blood-alcohol level.” (Id. at p. 1504; see also People v. 

Randolph (2018) 28 Cal.App.5th 602, 611–612 [trained officer may testify as 

to significance of HGN test performance as only “part of an officer’s total 

observations of a suspect”]; accord, United States v. Horn (D.Md. 2002) 185 

F.Supp.2d 530, 551 [finding that most states allowing HGN evidence permit 

it only as circumstantial proof of intoxication].) These decisions generally 

support defendant’s position that the results of HGN testing are admissible 

only as circumstantial, not direct, evidence of intoxication. Although these 

cases addressed only the HGN test, we accept for purposes of argument that 

the same proposition applies to all of the tests discussed by Pini at trial.

We cannot agree, however, that Pini’s use of statistics invaded the 

province of the jury on the ultimate issue of defendant’s guilt (People v. 

Prince (2007) 40 Cal.4th 1179, 1227 (Prince)) or constituted direct evidence of 

defendant’s intoxication or BAC. Viewed in context, Pini testified that 

defendant’s performance on the field sobriety tests was one factor among 

others (i.e., collision, visible signs of intoxication) that informed his decision 

to arrest her. Meanwhile, the prosecutor properly framed such test results as 

one of several pieces of circumstantial evidence that the jury could consider to 
45

find that defendant was impaired. Indeed, in discussing the differences

between direct and circumstantial evidence, the prosecutor stated, “And a lot 

of those things that we’ve been talking about, about the collision, and those 

types of things, those objective signs, her performance on the field sobriety 

tests, those are circumstantial evidence of her being under the influence.” 

(Italics added.)

We see no indication in the record that Pini’s use of statistics gave him 

“unearned credibility” or “ ‘distracted’ ” the jury from discharging its 

responsibility to weigh the evidence on the issue of guilt, as defendant 

contends. Of note, the jurors requested to watch the field sobriety test video 

footage during their deliberations, suggesting they did not automatically 

accept Pini’s testimony but instead independently considered and weighed 

the evidence of defendant’s performance on the tests, in conjunction with the 

other evidence, to find that she was under the influence at the time of the 

collision.

People v. Collins (1968) 68 Cal.2d 319 (Collins) and People v. Julian 

(2019) 34 Cal.App.5th 878 (Julian) do not persuade us otherwise. In Collins, 

a mathematics instructor gave expert testimony that based on certain 

physical attributes of the defendants, there was only a one-in-12-million 

chance that the defendants were not guilty. (Collins, at p. 325.) In reversing

the judgment, Collins held that the expert’s opinion testimony was based on 

assertions that had no evidentiary basis, and that the characteristics he 

selected for analysis were not mutually independent. (Id. at pp. 327–328.) 

The error in Collins was prejudicial “because it distracted the jury from its 

task and encouraged jurors to rely upon ‘an engaging but logically irrelevant 

expert demonstration.’ ” (Prince, supra, 40 Cal.4th at p. 1228, citing Collins, 

at p. 327.)
46

In Julian, the prosecution called an expert witness on child sexual 

abuse accommodation syndrome (CSAAS), who testified it was very rare for 

children to make false allegations of molestation, occurring in only one to 

eight percent of cases. (Julian, supra, 34 Cal.App.4th at p. 883.) While 

observing that expert testimony on CSAAS is admissible to rehabilitate 

witness credibility, Julian held such testimony is not admissible to prove that 

the complaining witness has, in fact, been sexually abused or that the 

witness is telling the truth. (Id. at p. 885.) Nor can a CSAAS expert give 

“ ‘predictive conclusions’ ” such as the child “ ‘should be believed.’ ” (Id. at 

p. 886.) In so holding, Julian cautioned that expert opinions on the 

statistical probability of guilt may distract the jury from its function of 

weighing the evidence on the issue of guilt. (Ibid.)

Pini’s statistical references created no such distraction for the jury 

here. Pini did not use statistics to bolster or attack a witness’s credibility, 

and he did not invite the jurors to presume defendant was guilty based solely 

on the statistics he cited. Rather, Pini cited statistics to support his 

testimony that he had probable cause to arrest defendant. Meanwhile, the 

prosecutor properly framed the field sobriety test results as circumstantial 

evidence the jury could consider, in conjunction with other evidence, to make 

the determination that defendant was under the influence of alcohol. In 

short, the jury was not distracted from its role, and defendant’s due process 

rights were not violated by Pini’s use of statistics during his testimony.

F. Prosecutorial Misconduct

Defendant contends the prosecutor committed misconduct by (1) telling 

the jury it could not “consider” the lesser offense of involuntary manslaughter 

until it acquitted defendant of murder, which contravened the holding of 

People v. Kurtzman (1988) 46 Cal.3d 322 (Kurtzman); and (2) offering 
47

inadmissible evidence—namely, a video on the consequences of drunk driving 

that was not in existence when defendant attended Second Chance in 2008.

1. Kurtzman Error

Defendant contends the prosecutor committed Kurtzman error when 

she told the jury during closing arguments: “You cannot move on to even 

consider involuntary manslaughter unless you all 12 agree that she is not 

guilty of murder.” Defendant acknowledges that she failed to preserve her 

claim of Kurtzman error by not objecting and requesting an admonition (see 

People v. Crew (2003) 31 Cal.4th 822, 839), but contends that her counsel 

rendered ineffective assistance in failing to do so. We conclude, based on our 

consideration of the merits of defendant’s claim (see Osband, supra, 13 

Cal.4th at p. 693), that defense counsel’s failure to object to the prosecutor’s 

Kurtzman error amounted to deficient performance, but that defendant 

suffered no prejudice from it.

Under California’s “acquittal-first” rule, “a trial court may direct the 

order in which jury verdicts are returned by requiring an express acquittal on 

the charged crime before a verdict may be returned on a lesser included 

offense.” (People v. Bacon (2010) 50 Cal.4th 1082, 1110.) In Kurtzman, the 

Supreme Court rejected a stricter acquittal-first rule “under which the jury 

must acquit of the greater offense before even considering lesser included 

offenses.” (Kurtzman, supra, 46 Cal.3d. at pp. 329, 333–334.) Thus, it is 

error for a trial court to instruct a jury not to “ ‘deliberate on’ or ‘consider’ ” 

lesser-included offenses before reaching a conclusion on the greater offense. 

(Id. at p. 335.)

The People concede, and we agree, that the prosecutor committed 

Kurtzman error by telling the jury it could not even “consider” the lesser 

offense of involuntary manslaughter until it acquitted defendant of the 
48

murder charge. (See, e.g., People v. Perez (1989) 212 Cal.App.3d 395, 399.) It 

follows, then, that defense counsel should have objected to the prosecutor’s 

Kurtzman error. Nonetheless, reversal is required only if defendant 

demonstrates that counsel’s deficient performance prejudiced her defense. 

(Strickland, supra, 466 U.S. at p. 687.)

Because Kurtzman error “implicate[s] California law only,” prejudice is 

shown if the error had “ ‘a reasonable probability of an effect on the 

outcome.’ ” (People v. Berryman (1993) 6 Cal.4th 1048, 1077, fn. 7 

(Berryman), overruled on other grounds by People v. Hill (1998) 17 Cal.4th 

800, 823, fn. 1 (Hill).) Our Supreme Court, however, has noted an “inherent 

difficulty” in demonstrating prejudice from Kurtzman error. (People v. Fields

(1996) 13 Cal.4th 289, 309, fn. 7.) This is because, “in the abstract,” an 

erroneous instruction that a jury must acquit on a greater charge before 

turning to lesser charges “appears capable of either helping or harming either 

the People or the defendant. In any given case, however, it will likely be a 

matter of pure conjecture whether the instruction had any effect, whom it 

affected, and what the effect was.” (Berryman, at p. 1078, fn. 7.)

We conclude the prosecutor’s Kurtzman error, as well as defense 

counsel’s failure to object to it, were not prejudicial in light of the strong 

evidence of defendant’s guilt for the greater offense of Watson murder. 

Courts that have upheld Watson murder convictions “ ‘have relied on some or 

all of the following factors’ that were present in Watson: ‘(1) blood-alcohol 

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

(3) knowledge of the hazards of driving while intoxicated; and (4) highly 

dangerous driving.’ ” (People v. Wolfe (2018) 20 Cal.App.5th 673, 682–683.)

Here, the January 2019 gas chromatograph analysis conducted by 

Posey showed defendant’s BAC to be 0.11 percent, well above the legal limit. 
49

(Veh. Code, § 23152, subd. (b).) Other evidence supported a finding that 

defendant subjectively appreciated the hazards posed by her decision to drive 

intoxicated, e.g., her prior DUI arrests and convictions, her participation in

alcohol education programs that emphasized the dangers of driving while 

intoxicated, and her plea agreements in 2008 and 2014, which included 

Watson admonitions in which defendant acknowledged the legal 

consequences of driving drunk and killing a person. All this provided 

powerful and substantial evidence supporting the jury’s finding that 

defendant drove under the influence with conscious disregard for life to 

support the greater offense of Watson murder.

Furthermore, unlike the cases involving prejudicial Kurtzman error, 

the jury here did not appear to be deadlocked on the greater charge. (See

People v. Olivas (2016) 248 Cal.App.4th 758, 769 [prejudicial Kurtzman error 

where jurors were told they could not consider alternative charge if they were 

hung].) While the jury did ask two questions about the definition of implied 

malice,

14 there was no indication the jury was seriously grappling with the 

evidence on this element. After receiving the jury’s questions, the trial court

heard arguments from counsel, reassembled the jury, and simply restated its 

prior instruction on the element of malice. The jury then returned to 

deliberations, and five minutes later, announced it had reached a verdict. In 

all, the jury deliberated for a little over two hours on the first afternoon and 

the same amount of time the following morning before reaching its verdict.

There is no indication that the jury was deadlocked or significantly conflicted 

14 The jury’s note read: “We have two questions for the judge about the 

definition of implied malice in the law: (1) Does a defendant have to be 

actively thinking of the consequences of their actions & risk at the moment of 

starting the vehicle, if they are under the influence? (2) Or if knowledge 

existed prior to starting the car, does this qualify as ‘knowing?’ ” 
50

over defendant’s guilt at any time. Under these circumstances, and in light 

of the strong evidence of defendant’s guilt for Watson murder, it is “a matter 

of pure conjecture” whether the prosecutor’s unobjected to Kurtzman error 

“had any effect” on the ultimate verdict reached. (Berryman, supra, 6 Cal.4th 

at p. 1078, fn. 7.) Accordingly, we conclude defense counsel’s failure to object 

to the prosecutor’s Kurtzman error was not prejudicial.

2. Inadmissible Evidence

Defendant argues that the prosecution committed misconduct by 

offering inadmissible evidence—specifically, a portion of a video program 

entitled “Intoxication Nation” that was played to the jury to demonstrate that 

defendant received educational instruction at Second Chance on the hazards 

and legal consequences of drunk driving. 

The trial court initially overruled the defense’s objection to the video 

based on testimony from Alfonso Morales-King, a coordinator at Second 

Chance, who told the court that he “believe[d]” the video was in use in 2008 

when defendant attended. After the video was played, however, the trial 

court noted that the video displayed a date stamp of “ ‘9/21/12.’ ” Upon 

further questioning, Morales-King testified that while the particular video 

might not have been shown in 2008, similar video clips were shown. The 

court then reversed its prior ruling and admonished the jury: “You’re going 

to be able to consider this as examples, these clips you saw, according to this 

gentleman’s testimony, examples of the types of things they show to students 

in these sessions, but you won’t have this available to review again during 

your deliberations since it’s not going to be in evidence.” 

“Prosecutorial error occurs under state law when the district attorney 

uses ‘deceptive’ or ‘reprehensible methods’ to sway a jury or judge, resulting 

in a reasonable probability that the defendant would have received a more 
51

favorable outcome absent this conduct.” (People v. Zaheer (2020) 54 

Cal.App.5th 326, 337–338.) While not rising to the level of reprehensible

conduct, the prosecutor’s proffer of the Intoxication Nation video as a video 

that was shown to defendant in 2008 was certainly improper and misleading. 

Nevertheless, any potential harm was cured by the trial court’s prompt 

admonition that the jury could consider the video only as an example of the 

type of instruction defendant received. The prosecutor’s error was not so 

egregious that the admonition could not cure it (see Hill, supra, 17 Cal.4th at 

p. 821), and we assume the jury did as instructed (see People v. Flinner

(2020) 10 Cal.5th 686, 737, fn. 12).

G. Instructional Error

Defendant contends the trial court erred in failing to instruct the jury 

that it could consider the lesser included offense of involuntary manslaughter 

before acquitting defendant on the greater offense of murder. The People 

argue that the trial court correctly instructed on the acquittal-first rule, and 

to the extent any further clarification was necessary, defendant forfeited her 

claim by not requesting it below. Defendant maintains that the trial court 

had a sua sponte duty to clarify the law given the prosecutor’s Kurtzman

error.

We will consider the merits of defendant’s claim. (See People v. Rogers

(2006) 39 Cal.4th 826, 850, fn. 7, & 880, fn. 28 [claim of failure to instruct sua

sponte not forfeited]; Pen. Code, § 1259 [court may review any instruction 

even though no objection was made if defendant’s substantial rights were 

affected].) “We review de novo whether a jury instruction correctly states the 

law. [Citation.] Our charge is to determine whether the trial court ‘ “fully 

and fairly instructed on the applicable law.” [Citation.]’ [Citation.] We look 

to the instructions as a whole and the entire record of trial, including the 
52

arguments of counsel.” (People v. Mason (2013) 218 Cal.App.4th 818, 825 

(Mason).)

The trial court’s instruction on involuntary manslaughter stated, in 

relevant part: “If all of you find that the defendant caused the death of 

another but is not guilty of the crime of murder, you may find her guilty of 

the lesser crime of involuntary manslaughter if you are convinced beyond a 

reasonable doubt that she is guilty of that lesser crime.” On its face, the 

instruction did not run afoul of Kurtzman. But read in conjunction with 

closing arguments (Mason, supra, 218 Cal.App.4th at p. 825), the instruction 

could have inadvertently reinforced the prosecutor’s incorrect statement of

law. Specifically, in instructing the jury that it could find defendant guilty of 

the lesser crime “[i]f all of you find that the defendant . . . is not guilty of the 

crime of murder,” the italicized language could have been construed as 

requiring the jury to acquit on the murder charge before it could turn to the 

lesser offense. It is plausible, then, that the instruction implicitly ratified the 

prosecutor’s Kurtzman error.

In any event, any assumed instructional error was harmless for the 

same reasons discussed above as to claim of prosecutorial Kurtzman error. 

(Berryman, supra, 6 Cal.4th at p. 1077, fn. 7.)

H. Cumulative Error

Defendant argues the cumulative effect of the trial court’s errors 

violated her right to due process and rendered the trial fundamentally unfair. 

We have identified or assumed the following errors: a Fifth Amendment 

violation for admission of defendant’s un-Mirandized statements; a

confrontation clause violation regarding the June 2017 and October 2015 

blood tests; the erroneous admission and commentary on defendant’s prearrest refusal to submit to the blood draw; and the prosecutor’s Kurtzman
53

error and the related instructional error. While such errors are not 

insignificant in character or number, we have carefully and extensively 

considered the impact of each error in light of the record and applicable case 

law and find no prejudice. Moreover, viewing the record as a whole and 

taking into account the strength of the properly admitted evidence pointing 

to defendant’s guilt, we cannot conclude that the errors combined in such a 

way as to result in a miscarriage of justice. “Defendant was entitled to a fair 

trial but not a perfect one.” (People v. Cunningham (2001) 25 Cal.4th 926, 

1009.) We are satisfied that defendant received a fair trial.

DISPOSITION

The judgment is affirmed.

_________________________

Fujisaki, Acting P. J.

WE CONCUR:

_________________________

Petrou, J.

_________________________

Rodríguez, J.

People v. Barbero (A160615)