Filed 12/30/20 P. v. Coleman CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT
THE PEOPLE, Plaintiff and Respondent,

v. DANIEL DARNELL COLEMAN, Defendant and Appellant. H045801 (Santa Clara County Super. Ct. No. C1365815)

Defendant Daniel Darnell Coleman sped away from police officers who were attempting to conduct a traffic stop and crashed into another car , killing two people

. After a jury trial, Coleman was convic ted of two counts of second degree murder (Pen. Code, § 187) , 1 possession of a firearm by a felon (§ 2 9800, subd. (a)(1)) , and reckless driving while eluding a peace officer (Veh. Code, § 2800. 2 ) . He was sentenced to an
indeterminate term of 60 years to life and a consecutive determinate term of four years. On appeal, Coleman argues that the trial court erroneously refused his request to instruct the jury with a definition of implied malice that would have clarified the language found in CALCRIM No. 520, the prosecutor committed misconduct by arguing that his actions after the crash proved he acted with implied malice, and the restitution fine and penalty assessments imposed in his case should be stayed pending a determination of his ability to pay. We affirm the judgment.

1 Unspecified statutory references are to the Penal Code.2 B ACKGROUND 1. The Information On October 24, 2017, an amended information was filed charging Coleman with two counts of murder (§ 187; counts 1 & 2), a count of possession of a firearm by a felon (§ 29800, subd. (a)(1)), and a count of reckless driving while eluding a peace officer (Ve h. Code, § 2800.2, subd. (a)). The amended information also alleged that Coleman had one prior strike conviction (§§ 667, subds. (b)

- (i), 1170.12).
2. The Trial

a. The Car Crash On September 2, 2013, California Highway Patrol Officer Matthew Barge was on duty at approximately 3:17 a.m

. He was driving north on Interstate 101, to the south of
Interstate 880 , when he noticed that a Mercedes

- Benz sedan was weaving and traveling over the speed limit. Officer Barge followed the Mercedes as it exited toward the Brokaw Road and North First Street offramp. After the Mercedes turned onto Brokaw Road, Officer Barge attempted to initiate a traffic stop and turned on his overhead lights
and forward

- facing red and blue lights. Officer Barge’s partner used the police car’s public address system and instructed the Mercedes’s driver to pull over to the right side
of the road

. The Mercedes started to slow down , but it made a sudden left turn when the upcoming traffic light turned green. The Mercedes th en made a left onto First Street from Brokaw Road, running a red light. Officer Barge decided not to pursue the car
because he was familiar with the area , which had restaurants and a casino, and he knew
there was a high level of pedestrian traffic in the vicinity. Officer Barge had already
witnessed the Mercedes have two near

- miss collisions, and he did not believe that it was appropriate to chase the car on city streets. Officer Barge estimated that the Mercedes reached speeds of 75 mil e s per hour.3

At some point, Officer Barge saw a flash of light in the distance in the direction
where the Mercedes had headed . Officer Barge’s partner commented that he thought there might have been a collision. The officers continued to drive down First S treet and arrived at the intersection of First Street and Skyport Drive . There, they saw that the
Mercedes had hit a Toyota Yaris. The driver of the Mercedes was not in the car. Officer Barge saw that the traffic light at the intersection cycled to green aft er the y arrived

. Officer Barge saw that two people were inside the Toyota . Both were unresponsive. The Toyota had significant damage to both its driver ’s side and passenger side. It looked like the Mercedes had impacted the passenger side of the Toyota. At trial, Officer Barge reviewed a video recording taken using his police car’s
video recorder. After reviewing the footage , Officer Barge testified that the Mercedes
made a number of traffic violations before the crash , including making turns on lanes that were designated as straight lanes. Saad Calhoun was driving on First Street and had just made a turn on Skyport
Drive at around 3 :00 a.m. the morning of the collision

. He heard a screech and a crunch behind him. Calhoun stopped his car and looked behind him to see what had happened.
He saw t hat two cars, a Mercedes and a smaller car, had crashed into each other

. Calhoun gathered his thoughts and made a U

- turn toward the accident so that he could
offer his assistance. He also called 911. Ryan West, a firefighter and paramedic, responded to the scene of the crash. West saw that the female passenger in the Toyota , C h ristina DeLeon Castro , had no p ulse and was not breathing. The female driver , Carmen Zavala, had a pulse but had insufficient respirations. Paramedics extricated Zavala out of the car and assisted her with ventilations. As they were loading Zavala into the ambulance, her pulse stopped , and paramedics began CPR. Zavala was pronounced dead at approximately 4:00 a.m. at Valley Medical Center. Castro was pronounced dead at the scene at approximately
3:40 a.m.4

Officers who arrived at the scene of th e crash collected an airbag that had been deployed by the Mercedes as evidence. Officers also collected blood droplets that were found on the Mercedes’s driver’s side door. Dr. Joseph O’Hara, a forensic pathologist, performed autopsies on Zavala and
Castro

. Zavala sustained injuries that would have ben “quickly lethal,” and she would
have died within a matter of minutes. Castro ’s injuries were similar in severity, and she

w ould have also died within a matter of minutes.
b. The Abandoned Gun On September 3, 2013, Michael Gonzales was doing construction at the corner of First Street and Skyport Drive. Shortly after he started work that morning at around 7:00 or 7:30 a.m., he sa w a gun on the ground in the dirt. Gonzales picked up the gun with his shirt, and he saw that the gun’s serial numbers were grinded or scratched off. Later that day , San Jose Police Department Officer Janet Cus i mano arrived at the construction scene and took the gun into evidence.

c. Coleman’s Arrest San Jose Police Department Officer Dan Ramirez testified that records reflected
that the Mercedes was registered to someone named Cami Farmer

. On September 20, 2013, San Jose Police Department Officer Bret Hatzenbuhler conducted surveillance on Coleman and located him at a shopping mall in Union City.
Coleman was at the mall with his wife , who he identified as “Cami Farmer or Cami
Coleman

. ” Officer Hatzenbuhler appr oached Col e man on foot. Coleman appeared nervous and was looking intensely at Officer Hatzenbuhler and at passing cars. Officer Hatzenbuhler entered a nearby store and acted as if he were a customer. Shortly thereafter, Coleman and his wife went into a car and drove to a nearby bank. Officer Hatzenbuhler continued to observe Coleman, and he believed Coleman looked nervous. After Coleman and his wife left the bank, officers arrested Cole man. Coleman vomited
after he was arrested.5

d. Forensic Evidence San Jose Police Department Detective Michael O’Brien photographed Coleman and took his DNA sample on the day he was arrested

. Detective O’Brien noticed that
Coleman had a one

- inch long scabb ed

- over cut on the back of his left hand. A forensic analyst examined the DNA that was obtained from the Mercedes’s airbag and a reddish

- brown stain that was later found on the abandoned gun’s magazine.
Coleman was the source of DNA on both the airbag and the stain found on the gun.

e. The Accident Reconstruction San Jose Police Department Officer Eric Dragoo testified as an expert in traffic
collision reconstruction. Officer Dragoo was assigned as the le ad investigator in the fatal
collision and helped process the crime scene. He observed that the area where the
collision had occurred had a speed limit of 35 miles per hour, and the traffic signal lights in the area were working properly. The main damage to the Toyota was on the passenger side, which was crushed inward from the front door all the way to the rear. The Mercedes’s front end was damaged, and its hood was buckled. After examining the tire marks on the road, Officer Dragoo opined that the
Mer cedes struck the Toyota on its passenger side, rocking the Toyota to the point where the driver’s side tires came off the ground. The two cars then separated, with the Toyota going into a clockwise spin heading toward a traffic signal pole. Th e driver’s side of the Toyota then struck the pole , which sent the car into an even more rapid spin until it came to a rest. The Mercedes continued on its own path toward the traffic signal pole. Officer Dragoo did not see anything on the road that would indicate “ preb r aking” by the Mercedes. However, Officer Dragoo watched some of the videos related to the case, and
he saw that the Mercedes’s brake lights illuminated shortly before the crash. He opined that if the Mercedes’s driver had pressed hard on the car’s brakes, there would have been a set of accompanying tire marks on the ground. But there were no tire marks.6

Cali fornia Highway Patrol Officer Aaron Huddleston testified as an expert in
electronic data retrieval and collision reconstruction. He assisted in the investigation of
the crash and retrieved the Toyota’s electronic data recorder. Based on the data retrieve d
from the electronic data recorder , the Toyota was traveling between 13.7 to 14.2 miles per hour at the time of the crash.
The Mercedes did not have an electronic data recorder , but Officer Huddleston used the “angular momentum principle” and calculated that the Mercedes was traveling at approximately 64 miles per hour before the crash. Using the “Monte Carlo methodology,” Officer Huddleston calculated that the Mercedes was tra veling between
55.1 and 75.6 miles per hour before the crash.
f. Coleman’s Prior Convictions The parties stipulated that on December 17, 2008, Coleman was convicted of carrying a concealed firearm (§ 12025, subd. (b)(3)) and that on February 26, 2009,
Colema n was convicted of possession of a concealed and loaded firearm (§ 12025,
subd. (b)(6))

. g. Evidence of Other Crimes On March 25, 2009, Lodi Police Department Corporal Eric Bradley was conducting surveillance on Coleman. Corporal Bradley saw Coleman and another man get inside a car with Coleman in the driver’s seat . Corporal Bradley followed them

. E ventually , he saw Coleman drive through a red light. Corporal Bradley activated hi s emergency lights and honked his air horn, but Coleman continued driving and accelerated from around 60 miles per hour to over 100 miles per hour. The road that Coleman was driving on had a speed limit of 55 miles per hour. Eventually, Corp oral Bradley lost sight of Coleman’s car. Corporal Bradley
slowed down but continued to drive . He then came across the sight of Coleman’s car crashed into a parked car. Coleman was nowhere to be seen.7

3. The Verdict and Sentencing On October 25, 2017, the jury found Coleman guilty of two counts of second degree murder (§ 187), one count of possession of a firearm by a felon (§ 29800,
subd. (a)(1)), and one count of reckless driving while evading a peace officer (Veh. Code, § 2800.2, subd. (a)). The trial court found the prior strike conviction allegation to be true. On April 6 , 2018, the trial court sentenced Coleman to an indeterminate term of 6 0 years to life, composed of two consecutive terms of 30 years to life for the t wo murder convictions (§ 187) and a concurrent term of six years for his reckless driving conviction (Veh. Code, § 2800.2, subd. (a)), and a determinate term of four years for possession of a firearm by a felon (§ 29800, subd. (a)(1)).
D ISCUSSION 1. Instruct ional Error Coleman argues that the trial court erred when it declined to instruct the jury that implied malice requires an act dangerous to human life when there is a high probability
that it will cause death as described in People v

. Thomas (1953) 41 Cal.2d 470 ( Thomas ). Coleman insists that the definition of implied malice found in Thomas is stricter than the definition found in CALCRIM No. 520, which the jury was instructed with. Thus, he argues that prejudicial error occurred, and his conviction m ust be reversed.

a. The Instructions Given to the Jury At trial, the jury was instructed with a modified version of CALCRIM No. 520 , which define s the elements of murder as follows: “1. The defendant committed an act that caused the death of another person; [¶] AND [¶] 2. When the defendant acted, he had a state of mind called malice aforethought.”
CALCRIM No. 520 gives the following definition of implied malice : “Implied malice is a kind of malice aforethought. Proof of implied malice is sufficient to establish the state of mind required for murder. [¶] The defendant acted with implied malice if: [¶] 1. He intentionally committed an act; [¶] 2. The natural and probable consequences of the8

act were dangerous to human life; [¶] 3. At the time he acted, he knew his act was dangerous to human life; [¶] AND [¶] 4. He deliberately acted with conscious disregard
for human life. ”
CALCRIM No. 520 also provides additio nal instructions on malice aforethought
and causation . First, CALCRIM No. 520 clarifies malice aforethought as follows :

“ Malice aforethought does not require hatred or ill will toward the victim. It is a mental
state that must be formed before the act t hat causes death is committed. It does not require deliberation or the passage of any particular period of time. ”
The instruction then explains causation : “ An act causes death if the death is the direct, natural, and probable consequence of the act and the death would not have happened without the act. A natural and probable consequence is one that a reasonable person would know is likely to happen if nothin g unusual intervenes. In deciding whether a consequence is natural and probable, consider all the circumstances established by the evidence.” At trial, Coleman’s trial counsel requested that the trial court also instruct the jury with the following defi nition of implied malice , which echoed the language found in
Thomas , supra , 41 Cal.2d 470 : “For the purpose of defining the second element of implied malice, an act is dangerous to human life when there is a high probability it will
result in death. Such an act is required before implied malice may be found.” The trial court declined to give this requested instruction.
b. Definition of Implied Malice Murder is “the unlawful killing of a human being, or a fetus, with malice aforethought.” (§ 187, subd. (a).) Malice can either be express or implied. (§ 188,
subd. (a).) “Malice is express when there is manifested a deliberate intention to unlawfully take away the life of a fellow creature.” ( Id

. , subd. (a)(1).) On the other hand, “[m]alice is im plied when no considerable provocation appears, or when the9

circumstances attending the killing show an abandoned and malignant heart.” ( Id

. , subd. (a)(2).) “The statutory definition of implied malice, a killing by one with an ‘abandoned and malignant he art’ (§ 188), is far from clear in its meaning.” ( People v

. Knoller (2007) 41 Cal.4th 139, 151 ( Knoller ) .) The term “invites confusion and unguided speculation,
for it ‘could lead the jury to equ a te the malignant heart with an evil disposition or a despicable character; the jury, then, in a close case, may convict because it believes the defendant a “bad man.” ’ ” ( People v

. Nieto Benitez (1992) 4 Cal.4th 91, 103 ( Nieto Benitez ).)
As a result , “[t]wo lines of decisions developed, reflecting judicia l attempts to ‘translate this amorphous anatomical characterization of implied malice into a tangible standard a jury can apply.’ ” ( Nieto Benitez , supra , 4 Cal.4th at p. 103.) “The earlier of
these two lines of decisions

. . . originated in Justice Tray nor’s concurring opinion in [ Thomas , supra , 41 Cal.2d 470, 480], which stated that malice is implied when ‘the defendant for a base, antisocial motive and with wanton disregard for human life, does an act that involves a high degree of probability that it will result in death.’ ” ( Knoller , supra , 41 Cal.4th at p. 152.) This has been referred to as the Thomas test. ( Ibid

. )
The second of the two lines of decisions dates from the California Supreme Court’s opinion in People v

. Phillips (1966) 64 Cal.2d 574 , overruled on a different ground as stated in People v

. Flood (1998) 18 Cal.4th 470, 490. In Phillips , the Supreme Court determined that malice is implied when the killing is proximately caused by “ ‘an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.’ ” ( Phillips , supra , at p. 587.) This has been
referred to as the Ph illips test.
In People v

. Watson (1981) 30 Cal.3d 290, the California Supreme Court held that
the definitions of implied malice articulated in Thomas and Phillips were substantively10

similar and articulated the same standard. ( Id

. at p. 300.) In subseque nt cases, the Supreme Court has consistently concluded that these two standards are the same. ( Nieto Benitez , supra , 4 Cal.4th at p. 104; Knoller , supra , 41 Cal.4th at p. 152; People v

. Dellinger (1989) 49 Cal.3d 1212, 1219 ( Dellinger ) .)

c. Refusal to Give Coleman’s Clarifying Instruction Coleman argues that the trial court erred when it refused to give his clarifying instruction on implied malice because CALCRIM No. 520 , which largely mirror s the language in the Phillips test, also state s that a natural and probable consequence is one that “a reasonable person would know is likely to happen if nothing unusual intervenes.” (Italics added.) Therefore, Coleman argues that CALCRIM No. 520’s definition of implied malice is d ifferent than the Thomas test’s “high degree of probability” standard. ( Thomas , supra , 41 Cal.2d at p. 48 0 .) Coleman insists that a likelihood of death is less
than a high probability of death; thus, the trial court’s failure to give his clarifying instruction effectively lowered the prosecution’s burden of proof and result ed in
reversible error

. A trial court has a sua sponte duty to give “correct instructions on the basic principles of the law applicable to the case that are necessary to the jury’s understanding of the case” ( People v

. Williams (2009) 170 Cal.App.4th 587, 638 ), including instructions “on all the elements of the charged offenses and enhancements.” ( Id . at pp. 638

- 639.) However, “a trial court may properly refuse an instruction offered by the defendant if it incorrectly states the law, is argumentative, duplicative, or potentially confusing.” ( People v

. Moon (2005) 37 Cal.4th 1, 30 ( Moon ) .) An appellate court reviews jury instructions de novo. ( People v

. Cole (2004 ) 33 Cal.4th 1158, 1217.) First, Coleman argues that the Thomas test articulates a higher standard than the Phillips test because it requires that the jury find that the defendant commit an act dangerous to life that has a high probability that it will result in death. To support his position, Coleman cites to Justice Liu’s concurrence in People v

. Cravens (2012) 5311

Cal.4th 500, 512 (conc. opn. of L iu, J.) ( Cravens )

. In Cravens , Justice Liu noted that prior California Supreme Court cases had stated a preference for the Phillips test’s formulation for the subjective component of implied malice (“conscious disregard for life”) over the Thomas test’s formulation, but the Supreme Court had also “never
disavowed the Thomas formulation of implied malice, particularly with respect to t he objective component , ” which, under Thomas , requires “ ‘an act that involves a high degree of probability that it will result in death.’ ” ( Cravens , supra , at p. 513 (conc. opn. of Liu, J.) ; see Dellinger , supra , 49 Cal.3d at p. 1221 [concluding that th e better practice is to instruct jury with “straightforward language of the ‘conscious disregard for human life’ definition of [the subjective component of ] implied malice”] .) Justice Liu observed that the majority opinion in Cravens cited only the Phillips

test and did not mention th e Thomas test when examining whether there was sufficient evidence to support the objective component of implied malice. ( Cravens , supra , 53 Cal.4th at p. 513 (conc. opn. of Liu, J.).) After reiterating that the Supreme Court had previously held that the Thomas test was equivalent to the Phillips test , Justice Liu determined that the majority’s failure to discuss the Thomas test

— even though th e Cravens defendant and the Court of Appeal below relied upon it

— “suggests (but does not hold) that the Phillips formulation matters in a close case such as this.” ( Id

. at p. 514 (conc. opn. of Liu, J.).) Justice Liu then wrote, “ I f Thomas ’s ‘high degree of probability’ test is to become disfavored in our doctrine, I prefer we consider and resolve the issue explicitly

— if not in this case, then in a future case

— instead of leaving it to mere implication.” ( Ibid

. (conc. opn. of Liu, J.).) Justice Liu stated that he expressed no views

on Thomas ’s continued validity because the issue was not specifically before the court. ( Ibid

. (conc. opn. of Liu, J.).) Coleman argues that Justice Liu’s concurrence in Cravens suggests that there is a
distinction between the Phillips test and the Thomas test. Justice Liu’s concurrence , however , is not binding precedent. ( People v

. Byrd (2001) 89 Cal.App.4th 1373, 138312

[“ ‘no opinion has value as a precedent on points as to which there is no agreement of a majority of the court’ ”].) Moreover, as Justice Liu himself noted in his concurrence , the
California Supreme Court has consistently held in past cases that the Phillips test and the
Thomas test are substantively the same. ( Cravens , supra , 53 Cal.4th at p. 514 (conc. opn. of Liu, J.); Nieto Benitez , supra , 4 Cal.4th at p. 104; Knoller , supra , 41 Cal.4th at p. 152; Dellinger , supra , 49 Cal.3d at p. 1219.) The Supreme Court has never express ly disapproved the Thomas test, nor has the court ever concluded that the Phillips test and
the Thomas test articulate a different standard. We are bound by the Supreme Court’s prior decisions on this issue, and Coleman’s contrary argument must be rejected . ( Auto Equity Sales , Inc

. v
. Superior Court (1962) 57 Cal.2d 450, 455.) Furthermore, the California Supreme Court dismissed a n argument similar to Coleman’s claim of instructional error in Nieto Benitez , supra , 4 Cal.4th 91. In Nieto Benitez , the jury was instructed that to find implied malice, it must find that “ ‘[ t ] he natural consequence s of the [defendant’s] act [were] dangerous to human life. ’ ” ( Id

. at
p. 100.) On appeal, the defendant argued that the trial court misstated the law because
the instruction s given to the jury omitted “a requirement that [the] defendant commit the
act with a high probability that death will result.” ( Id

. at p. 111.) The Supreme Court rejected this challenge, concludin g that “the two linguistic formulations [under Phillips
and Thomas ]

— ‘an act, the natural consequences of which are dangerous to life’ and ‘an act [committed] with a high probability that it will result in death’ are equivalent

. . . .” ( Ibid

. ) Like the ju ry in Nieto Benitez , the jury in this case was instructed that the second element of implied malice was that “[t] he natural and probable consequences of the act were dangerous to human life.” As stated in Nieto Benitez , this language is substantively the same as the clarifying instruction that Coleman requested

— that a n act is dangerous to
human life when there is a high probability it will result in death

. ( Nieto Benitez , supra , 413

Cal.4th at p. 111. ) The trial court was also not required to give instructions that it found
to be duplicative

. ( Moon , supra , 37 Cal.4th at p. 30

. ) Coleman argues that Nieto Benitez does not foreclose his argument because the
case considered the definition of implied malice set forth in CALJIC No. 8.31, which did
not contain the additional definition of “natural and probable consequence” found in
CALC RIM No. 520

— that “a natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. ” ( Second italics
added. )
We find no merit in Coleman’s argument . W hen we review claims of instructional error, we must consider the instructions as a whole and do not assess error based solely on one part of an instruction. ( People v

. Salazar (2016) 63 Cal.4th 214, 248.) As we have stated above, CALCRIM No. 520 uses th e phrase “natural and probable consequence” in two separate areas: when discussing causation and when describing the second element of implied malice. The “likely to happen” definition of a “natural and probable consequence” found in C ALCRIM No. 520 does not immediately follow the instruction’s definition of implied malice. The d efinition is found in a separate paragraph following the definitions of murder and implied malice, and appea rs in the following

context: “An act causes death if the death is the direct, natural, and probable consequence of the act and the death would not have happened without the act. A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes.” In other words, the definition of a “natural and probable consequence” that Coleman takes issue with is directed at whether an act causes death, not at any of t he elements of implied malice

. E ven if we assume that a reasonable juror applied the “likely to happen” definition
of a “natural and probable consequence” to the second element of implied malice , we would reject Coleman’s argument that failing to include his clarifying instruction confused the jury or diluted the prosecution’s burden of proof

. M ultiple cases have used14

the phrase likely to cause death or injury when discussing implied malic e. In People v

. Conley (1966) 64 Cal.2d 310, ab rogated by statute on another ground as stated in People

v
. Bryant (2013) 56 Cal.4th 959, the California Supreme Court stated that a defendant has
the “ wanton disregard for human life or antisocial motivation that constitutes malice aforethought” if “he does an act that is likely to cause serious injury or death to another.” ( Conley , supra , at p. 322 , italics added .) Likewise, i n People v

. Coddington (2 000) 23
Cal.4th 529 , abrogated by statute on another ground as stated in People v

. Zamudio (2008) 43 Cal.4th 327, the Supreme Court determined that evidence that the defendant “acted with actual or presumptive knowledge that serious bodily injury was likel y to

occur ” permitted an inference of implied malice. ( Coddington , supra , at p. 592 , italics
added .) Coleman, however, argues that the term “likely” is ambiguous and requires a clarifying instruction. In support of his position, Coleman cites to People v

. Superior
Court ( Ghilotti ) (2002) 27 Cal.4th 888 . In Ghilotti , the California Supreme Court stated that the term “ ‘likely’ may be used flexibly to cover a range of expectability from possible to probable.” ( Id

. at p. 916.) Ghilotti , however, does not aid Coleman. Ghilotti considered the use of the term “likely” in the specific legal context of the Sexually Violent Predators Act (SVPA) (Welf

. & Inst

. Code, § 6600 e t seq. ) , and the term has a “particular and technical meaning” within the SVPA. ( Ghilotti , supra , at p p. 916

- 917; People v

. Roberge (2003) 29 Cal.4th 979, 988 [“[n]ot all

. . . dictionary definitions of ‘likely’ are consistent with the particular and technical meaning the SVPA assigns that term”].) “ ‘ A word or phrase having a technical, legal meaning requiring clarification by
the court is one that has a definition that differ s from its nonlegal meaning. ’ ” ( People v

. Griffin (2004) 33 Cal.4th 1015, 1023.)
In this case , we are not concerned with the technical, legal definition of the term “likely.” The Oxford English Dictionary defines the “likely” as “having a high chance of occurring; probable.” (Oxford English Dict. Online (2016) < https://perma.cc/6AD4
-15

EVTG > [as of Dec. 30 , 2020].) This definition fits within the context of CALCRIM
No. 520 and the elements of implied malice

— that the natural and probable conseque nce (one that a reasonable person would know is likely to happen if nothing unusual intervenes) of Coleman’s act must have been dangerous to human life. T he trial court

was not required to instruct on the meaning of terms that are commonly understood

. ( P eople v

. Malone (1988) 47 Cal.3d 1, 54

- 55.) Thus, the trial court did not err when it declined to give Coleman’s clarifying instruction on the definition of implied malice.
2. Prosecutorial Misconduct and Ineffective Assistance of Counsel Next, Coleman argues that the prosecutor committed misconduct when s he argued
that his actions after he committed the crime showed that he had implied malice . He also
insists that his trial counsel rendered ineffective assistance by failing to request that the
trial court admonish the jury to disregard the prosecutor’s improper argument.

a. The Prosecutor’s Closing Argument During her closing argument, the prose cutor made the following statement : “Now going to the conscious disregard of human life. In determining whether a defendant acted with conscious disregard for human life, you can consider his conduct and state of mind before, during, and after the crime. ” Coleman’s trial counsel objected to this argument on the ground that it misstated the law. Following a sidebar with both counsel, the trial court admonished the jury as follows: “All right, members of our jury, if there is a conflict or an inconsiste ncy between what the attorneys say and what the jury instructions say the jury instructions control, okay? Remember the comments of counsel are not evidence.” The trial court then permitted the prosecutor to continue her closing argument. The prosecut or stated : “When you are looking at somebody’s mental state and trying to figure out what that is, you have to look at what that person did before, during, and after for you to know what their mental state is. That makes sense. That’s just common sense.16

And here you’re going to have to decide what his mental state is and whether that is a conscious disregard for human life. You have to look at all of the evidence: before, during and after.” The prosecutor then argued that Coleman’s actions before the crash, suc h as his failure to stop at red lights and his decision to evade the police, showed that he had the required mental state. The prosecutor then turned to Coleman’s actions after the cras h and argued : “ But you have more evidence of his state of mind. You have more evidence of malice. And that’s what he did after. After this crash,

. . . he fled on foot before the police can arrive. And the police arrived what, 30, 40 seconds, less than a minute? He threw the gun over the fence. He put himself over

—his life over other human lives, even
after he killed Miss Zavala and Miss Castro in this violent collision that he did, that he caused. He got out of his car and he had the wherewithal to get his gun. Whether it was in his car or on his person he got out, closed the door and threw it over the fence and ran before the police could even arrive. He did all of this after this type of wreckage occurred, okay? What does that tell you? It tells you that he knew what was about to happen. He had a plan for it, o kay? There’s a plan A, and the plan is to get away. W e get that, right, he wanted to get away. Dangerous to human life, okay. [¶] The plan B is if he crashes, he’s going to throw his gun away and he’s going to run, okay. Because anybody else who is goi ng to b e in that type of collision, this type of crash that is so violent, and that clearly killed somebody in the car, would be shaken up and traumatized like ‘what just happened?’ [¶] But no. [¶] The defendant, he’s not shaken up or
traumatized at all. He knows exactly what he’s doing. He’s going to get that gun. Throw it over the fence and be gone. He has the wherewithal to do all of that before the
CHP and Mr. Calhoun arrived. That tells you what he’s thinking. You get to put that in your consider ation when you consider what he’s thinking because

— ” Coleman’s trial counsel objected to the argument , and the trial court had an unreported bench conference with both attorneys. After the bench conference, t he17

prosecutor continued : “Let me clarify. What he does after allows you to know, right, and decide what he was thinking before, right? I think that’s common sense. You look at what somebody does before, during and after to see what they were thinking about
before. So this is malice aforethought, right, the malice is there before he does the driving that causes the death. But in order to determine that, you need to look at all of the evidence, and you need to look at his actions and what his state of mind was to know
what it w as before. That’s what you were deciding.” Later, the prosecutor added: “After [Coleman] killed two people he fled, right? He continued to flee until the police found him 18 days later. He never turned himself in. He appeared nervous. He was looking around. Wearing fake glasses. Covering up. A nd then he threw up when he was arrested. And you can use that as consciousness of guilt. You can use that as evidence of what he was thinking before he crashed, right?” After both attorneys made their cl osing argument and outside the presence of the jury, the trial court stated: “I just did want to put on the record, to the best of the court’s ability, the discussion that we had off the record regarding [the prosecutor’s] argument about Mr. Coleman’s act ions after the collision, and the fact that that could be used to support a finding of malice aforethought. [¶] [The prosecutor] clarified at the bench that, perhaps, the manner in which it was being stated was not what she intended, and that is
that she i ntended to use what Mr. Coleman did after the collision to show what he was thinking before the collision. And the court would rule that that can be used as proper argument. But the manner in which the slide was presented said that the actions after
coul d be used to support malice aforethought. And that is just a misstatement of the law. It is parsing. It may be splitting hairs, but it is a misstatement of the law.” In response, t he prosecutor argued that “[t]he actions that [Coleman] does
afterward c an be considered to determine whether he had malice aforethought

. ” The trial court disagreed and stated : “They cannot. They can be used to show what he may have been thinking before. Then you’re going to talk about what he was thinking before.18

And tha t could be malice aforethought. You’ll get to the same place, it’s how you’re phrasing it. So we can’t say that what he did after supports malice aforethought. We can say that what he did after may support what he was thinking beforehand, your getaway
p lan, you had some specifics that you were arguing. [¶] I’m absolutely not precluding you from arguing those. I think stating that that is malice aforethought, what he did after is an incorrect statement of the law. I am not precluding you from arguing wh at he did after. And I’m also not precluding you from connecting with what he did after to what he may have been thinking before. And I believe [defense counsel] is not either. It’s saying that what he did after is malice aforethought. And that’s how y ou stated it.” 2
b. Postcrime Actions as Evidence of Implied Malice Coleman argues that the prosecutor committed misconduct when she argued that Coleman’s actions after the car crash showed that he had implied malice. Coleman also
insists that his trial counsel was ineffective for failing to request a more specific
admoni tion after the prosecutor made her argument. As we explain, we find no merit in Coleman’s claims.

“ ‘The applicable federal and state standards regarding prosecutorial misconduct are well established. “ ‘A prosecutor’s

. . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct “so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.” ’ ” [Citations.] Conduct by a prosecutor that does not render a criminal tri al fundamentally unfair is prosecutorial misconduct under state law only if it involves “ ‘ “the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.” ’ ” ’ ” ( People

v
. Hill (19 9 8) 17 Cal.4th 800, 819 ( Hill ).)

2 In his opening brief, Coleman cites to the slideshow that the prosecutor used during her closing argument. Coleman, however, did not request that the exhibit be transferred to this court. (See Cal. Rules of Court, rule 8.224(a)(1).)19

Pr osecutors are given “significant leeway in discussing the legal and factual merits of a case during argument.” ( People v

. Centeno (2014) 60 Cal.4th 659, 666 ( Centeno ).) However, a prosecutor commits misconduct if he or she misstates the applicable law. ( People v

. Boyette (2002) 29 Cal.4th 381, 435.) “When attacking the prosecutor’s remarks to the jury, the defendant must show that, ‘[i]n the context of the whole argument and the instructions’ [citation], there was ‘a reasonable likeliho od the jury understood or applied the complained

- of comments in an improper or erroneous

manner. ’ ” ( Centeno , supra , at p. 666.) First, we reject Coleman’s argument that the prosecutor committed misconduct when she argued that his postcrime actions could be used as evidence that he had the mental state of implied malice at the time he committed the crime. In support of his position, Coleman relies on People v

. Anderson (1968) 70 Cal.2d 15, 32. In Anderson , the defendant was convicted of murdering a 10

- y ear

- old girl. ( Id

. at p. 19.) After committing the murder, the defendant attempted to “ ‘cover up’ the crime by lying to the brother and the mother of the victim.” ( Id

. at p. 32.) The California Supreme Court in
Anderson concluded that “[a]lthough this type of evidence may possibly bear on defendant’s state of mind after the killing, it is irrelevant to ascertaining defendant’s state of mind immediately prior to, or during, the killing. Evasive conduct shows fear: it

can not support the double inference that defendant planned to hide his crime at the time he committed it and that therefore defendant committed the crime with premeditation and deliberation.” ( Ibid

. ) As a result, Anderson concluded there was insufficient ev idence to support a finding of premeditation and deliberation without evidence of “(1) defendant’s actions prior to the killing, (2) a ‘motive’ or ‘reason’ from which the jury could reasonably infer that defendant intended to kill [the victim], or (3) a ma nner of killing from which the jury could reasonably infer that the wounds were deliberately calculated to result in death.” ( Id

. at p p. 33

- 34.)20

Anderson does not hold that evidence of postcrime conduct cannot be probative of a defendant’s state of mind at the time of the crime. In People v

. Thompson (2010) 49 Cal.4th 79, 113, the California Supreme Court clarified its decision in Anderson as follows : “While our comment in Anderson thus warns against using evidence of a defendant’s postcrime actions and statements as the sole support for upholding a finding of premeditated and deliberate murder, such postcrime actions and statements can support a finding that defendant committed a m urder for which his specific mental state is established by his actions before and during the crime.” (Italics added.) In this case, Coleman’s postcrime conduct

— throwing away the gun and fleeing
the scene

— supported an inference that he had implied mali ce at the time of the crash.
And u nlike Anderson , Coleman’s postcrime conduct was not the only evidence of implied malic e. As the prosecutor argued, Coleman’s actions before the crime were also indicative of his mental state, including his decision to ru n multiple red lights and to evade the polic e. Therefore, the prosecutor did not misstate the law or commit misconduct when she argued that Coleman’s postcrime conduct was probative as to his
mental state at the time he committed the crime. We acknowledg e that a ccording to the trial court’s comments, the prosecutor presented a slide to the jury that suggested that Coleman acted with implied malice after
the crash and that having the mental state of implied malice after the crash was sufficient to support a finding of murder

. Even if the prosecutor’s slide misstated the law , Coleman’s trial counsel objected

to the misstatement below, and the trial court gave an admonition to the jury. The trial court advised the jury that conflicts or inconsistencies between the attorneys’ arguments and the jury instructions must be resolved in favor of the jury instructions. Here , the jury was instructed with CALCRIM No. 520 on the elements of implied malice murder, which required t hat the jury find that the defendant had the mental state of implied malice when
he committed the act

. In other words, the jury was instructed that to find Coleman guilty21

of murder, he must have had implied malice at the time of the crash, not after the crash. We presume that the jury followed these instructions. ( People v

. Edwards (2013) 57 Cal.4th 658, 764 [jury is presumed to have followed instruction that statements of attorneys are not evidence] .) Furthermore, when we consider the prosecutor’s remarks as a whole, we do not believe “there was ‘a reasonable likelihood the jury understood or applied the complained

- of comments in an improper or erroneous manner. ’ ” ( Centeno , supra , 60
Cal.4th at p. 666.) As we have described, the bulk of the prosecutor’s argument properly focused on Coleman’s postcrime conduct as probative of his mental state during the
crime

. Finally, Coleman argues that his trial counsel rendered ineffective assistance by failing to request that the trial court give the jury a more specific admonition. H is trial
counsel , however, could have reasonably believed that the trial court’s admonition to the jury was already sufficient. ( Strickland v

. Washington (1984) 466 U.S. 668, 688 [ineffective assistance of counsel requires representation that was objectively
unreasonable ] .) Thus, Coleman’s claim of ineffective assistance of counsel fails.
3. Cumulative Error Coleman argues that to the extent any of the alle ged errors are not individually prejudicial, the cumulative effect of the errors requires reversal of the judgment

. ( Hill , supra , 17 Cal.4th p. 844.) We have considered each of Coleman’s arguments and have
concluded that there was no instructional error and no prejudicial prosecutorial misconduct. Since there are no errors to cumulate, Coleman’s claim of cumulative error
must be rejected.
4. Fines and Fees Finally, Coleman argues that under People v

. Dueñas (2019) 30 Cal.App.5th 1157 ( Dueñas ), the trial court erred in imposing certain fines and fees without first determining his ability to pay.22

a. Coleman’s Fines and Fees
At the sentencing hearing, the trial court imposed a $300 restitution fine under section 1202.4, subdivision (b)(2) , a $4 emergency medical air transportation fine under Government Code section 76000.10, a $160 court security fee under section 1465.8, and a $120 criminal conviction assessment under Government Code section 70373. The trial court declined to impose the $129.75 criminal justice administration fee because there
was “no evidence

. . . before the Court which would justify the imposition of that fee.” The trial court asked Coleman’s trial counsel if Coleman waived the right to “[a] hearing regarding his ability to pay the minimum fines and fees imposed under these orders, as well as a breakdown of the fines and fees imposed under these orders.” Coleman ’s trial counsel answered, “Yes, Your Honor.”
T he trial court also ordered Coleman to pay victim restitution in the amount of $10,000 to the California Victims Compensation Board

. When asked about the victim restitution order, Coleman’s trial counsel sta ted, “[M]y client would like the Court to know that prior to his incarceration I believe he had just gotten a job. But he had no, essentially, means, or means of employment. I would submit on that.” The trial court then asked if Coleman wanted a hearing on victim restitution, and Coleman’s trial counsel answered, “No, Your Honor.”
b. Dueñas 3
In Dueñas , the defendant was an unemployed , homeless probationer with cerebral palsy who spent her benefits and food stamps on her two children. ( Dueñas , supra , 30 Cal.App.5 th at pp. 1160

- 1161 .) The defendant had received juvenile citations when she was a teenager, which led to fines, which led to her driver ’ s license getting suspended

3 Appellate courts have reached conflicting conclusions on whether Dueñas was correctly decided, and the issue is presently pending before the California Supreme Court. (See , e.g., People v

. Kopp (2019) 38 Cal.App.5th 47, review granted Nov. 13, 2019, S257844.)23

after she could not repay her debts. ( Id

. at p. 1161 .) She was then convicted several times for driving with a suspended license, which resulted in her spending time in jail because she could not afford to pa y the fines associated with her convictions. ( Ibid

. ) After her most recent conviction of driving with a suspended license, the defendant requested that the trial court set a hearing to determine her ability to pay previously

- assessed attorney fees and ot her court fees. ( Id

. at p. 1162 .) After an ability

- to

- pay hearing, the trial court determined that the defendant lacked the ability to pay attorney fees and waived them. ( Id

. at p. 1163 .) The trial court, however, also
determined that the criminal conviction assessment imposed under Government Code section 70373 and the court operations assessment imposed under section 1465.8 were mandatory regardless of the defendant ’ s ability to pay, and the defendant had not shown the “ ‘compelling and e xtraordinary reasons’ ” required by section 1202.4, subdivision (c) to justify waiving the assessments . ( Dueñas , supra , at p. 1163 .) On appeal, the Second Appellate District reversed the trial court’s order. ( Dueñas , supra , 30 Cal.App.5 th at p. 1164 .) With respect to the criminal conviction and court operations assessments, Dueñas first observed that both assessments were not intended to be punitive in nature. ( Id

. at p. 1165.) Dueñas then examined several California and United States Supre me Court decisions involving indigent defendants and fees: Griffin v
. Illinois (1956) 351 U.S. 12, which held that due process and equal protection principles require that all people charged with a crime be treated equally ; In re Antazo (1970) 3 Cal.3d 100, which invalidated the practice of requiring defendants to serve jail time if they were unable to pay a fine and penalty assessment ; and Bearden v
. Georgia (1983) 461 U.S. 660, which held that it violated the federal Constitution to revoke an in digent
defendant ’ s probation for failing to pay a fine and restitution. ( Dueñas , supra , at
pp. 1166

- 1169 .) Relying on these three cases, Dueñas held that imposing the criminal conviction and court operations assessment s without determining a defendant ’ s ability to pay was fundamentally unfair and violated due process. ( Id

. at pp. 1168

- 1169 .)24

With respect to the restitution fine under section 1202.4, subdivision (b), Dueñas
held that the execution of the fine must be stayed until the People can demonstrate that
the defendant ha s the ability to pay the fine. ( Dueñas , supra , 30 Cal.App.5 th at p. 1172 .)

c. Waiver Here, the trial court expressly asked Coleman if he waived his right to “[a] hearing regarding his ability to pay the minimum fines and fees” imposed in his case. Coleman’s trial counsel responded “[y]es

. ” Defendant, however, argues that at the time of h is waiver, the fines and fees imposed in his case were not subject to an ability to pay determination, he was not giving up a legal recognized right when his counsel waived a hearing on his behalf, and the fines and fees would have been imposed regardless of the hearing’s outcome. The Attorney General disagrees and argues that Coleman cannot challenge his fines and fees because he failed to raise an objection below. On this record, we conclude that Coleman has waived his right to an ability to pay hearing . The trial court gave Coleman the opportunity to demonstrate his inability to pay the fines and fees imposed in this case

. Coleman , through his trial counsel, expressly relinquished his right to a hearing on his ability to pay

— which is what he now seeks on appeal

. Therefore, w e conclude that his express waiver at the sentencing hearing waived any right to an ability to pay hearing.
D ISPOSITION The judgment is affirmed.Premo, Acting P.J.

WE CONCUR:

Elia, J.

Bamattre

- Manoukian , J.

People v. Coleman H04 5801