Filed 4/9/15 P. v. Durnin CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA

THE PEOPLE, Plaintiff and Respondent,

v. THOMAS CHARLES DURNIN, Defendant and Appellant. D066961

(Super. Ct. No. SWF1100682)

APPEAL from a judgment of the Superi or Court of Riverside County, Gary B. Tranbarger, Judge. Affirmed with directions.

Jennifer Peabody, under appointment by th e Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Julie L. Garland, A ssistant Attorney General, James D. Dutton and Donald W. Ostertag, Deputy Attorneys General, for Plaintiff and Respondent. A jury found defendant and appellant Th omas Charles Durnin guilty of second degree murder (Pen. Code, § 1 87, subd. (a); count 1); evad ing a pursuing peace officer2 and causing the death of another (Veh. Code , § 2800.3; count 2); possession of a shortbarreled shotgun (Pen. Code, fo rmer § 12020, subd. (a); c ount 4); and being a felon in possession of a firearm (Pen. Code, fo rmer § 12021, subd. (a); count 5). 1 The court sentenced defendant on count 1 to an indeterminate term of 15 years to life in state prison. On count 2, the court imposed a 10-ye ar term but stayed the sentence pursuant to Penal Code section 654, subdivision (a). The court also imposed, pursuant to a plea bargain, a three-year term fo r a robbery charge in a separa te case; added an eight-month consecutive sentence on count 4; and ordered the midterm sentence on count 5 stayed under Penal Code 2 section 654, subdivision (a). On appeal, defendant cont ends the court erred when it admitted into evidence a video of him pleading guilty in Arizona to a charge of "felony endange rment." In February 2008, defendant fled at a high rate of speed, ran a red light and crashed shortly thereafter into a traffic sign and fire hydran t after a fully-uniformed police officer riding on his police motorcycle activated his light s and attempted to pull over defendant's vehicle for a traffic violati on. Although defendant admits the relevance of the video evidence, he nonetheless conte nds this evidence violated his constitutional rights and/or should have been excluded under Evidence Code section 352 because it showed him wearing jail attire while entering the plea. Defendant also contends th at the evidence in the record is insufficient to support his conviction on count 2; that the court e rred in failing sua sponte to give a limiting

1 The court dismissed count 3—possession of an assault weapon (former § 12280, subd. (b))—at the conclusion of the presentation of evidence.
2 All further statutory references are to the Penal Code unless noted otherwise.3 instruction in connection with his Arizona guilty plea; that th e court erred in refusing to give the jury his proposed pinpoint instruction on the issue of implie d malice; and that the abstract of judgment should be corrected to show the trial court stayed under section 654, subdivision (a) the se ntence on count 5. As we explain, we conclude the abstra ct of judgment should be corrected with respect to count 5. Otherwise, we affirm the judgment of conviction.
FACTUAL OVERVIEW 3
Beaumont Police Officer Brian Stehli tes tified he was monitori ng traffic in midMarch 2011 while parked on or near Beaum ont Avenue. Around 11:00 a.m., Officer Stehli saw a silver pickup truck drive past with a large crack in its front windshield. As it went by, Officer Stehli also noticed a crack in the pickup's right brake lens cover. Officer Stehli pulled into traffic in his fully-marked Beaumont police cruiser in order to conduct a traffic stop of the pickup in what Officer Stehli presumed would be a "fix-it ticket." In addition to lights and a siren, Offi cer Stehli's cruiser was equipped with a recording system that is always on and r ecords data and captures video from a camera mounted on the cruiser's dashboard. On the da y in question, the camera was operational. The video, which was shown to the jury and is included in the record as exhibit 1, showed Officer Stehli pulling behind the stopped pickup at an intersection. After notifying dispatch of his intent to make th e stop, Officer Stehli activated his cruiser's

3 We view the evidence in the light most favorable to the judgment. (See People v. Osband (1996) 13 Cal.4th 622, 690 .) Portions of the factual and procedural history related to certain of defendant 's contentions are discussed post

.4 lights and siren in an attempt to pull over th e pickup. The driver of the pickup, later identified as defendant, did not stop bu t instead accelerated westbound. With Officer Stehli in pursuit, the driver of the pickup went through several stop signs and crossed a double yellow line into oncoming traffic in order to pass another vehicle. The video next showed Officer Steh li pursuing the pickup as it traveled on a dirt road that ran parallel to and ev entually intersected Highway 79. As the pursuit continued, the driver of the pickup went through a red li ght at a speed estimated by Officer Stehli to be between 70 and 90 miles per hour. Once on Highway 79, the video showed th e driver of the pickup passing a vehicle on the right shoulder of the road. The video also showed other drivers yielding as Officer Stehli pursed the pickup. After exiting Highway 79, the driver of the pickup truck ran through another stop sign and made a left turn from the right turn lane. The driver next crossed a double yellow line again and drove into oncoming traffic in order to pass another vehicle. As the chase continued, Officer Stehli slowed down and, at one point, lost sight of the pickup because the driver was swerving in and out of oncoming traffic and Officer Stehli did not want to put the p ublic at further risk. The driv er of the pickup next turned onto a road that led to the Soboba Indian Re servation. Officer Stehli testified, and the video showed, a large cloud of dust on the hor izon. Just seconds before he saw the dust cloud, however, Officer Stehli testified he had decided to terminate the pursuit of the pickup because they were approaching a cas ino where there tended to be a lot of pedestrian and vehicle traffic.5 As Officer Stehli approached the dust cloud, he saw th at the pickup he had been pursuing had collided head on with a white Cadillac and that both vehicles were stopped on the shoulder on the left side of the road. Officer Stehli testified when he approached the pickup he saw defendant in the driver's seat. Beaumont Corporal Scott Davis testified he was in route to assist Officer Stehli when he came upon the accident scene a nd saw Officer Stehli standing outside his cruiser, with his duty weapon pointed in the direction of the pickup. Corporal Davis could see at least two individuals in the pickup. When Corporal Davis and other officers approached the pickup, they saw three individuals inside, with defenda nt sitting in the driver's seat . Inside the white Cadillac, Corporal Davis saw an individual in a "laid-b ack position" in the driv er seat. The driver of the Cadillac was then aliv e but unconscious and unresponsive. A subsequent autopsy of the driver of the Cadillac, victim Mike Morgan, showed the victim died of "multiple blunt force trauma" that was consistent with in juries sustained in an automobile collision. While at the accident scene, California Highway Patrol (CHP ) advised Corporal Davis that witnesses had seen weapons being thrown from the pickup du ring the pursuit. Corporal Davis doubled-back along the chas e route, and, about a half-mile from the accident scene, he came upon a CHP officer st opped on the side of the road. There, Corporal Davis recovered a loaded sawed-off shotgun with a pistol grip and an assault rifle with a high-capacity, loaded magazine attached. On the day of the accident, witness "'Art Moronez was dr iving eastbound on Soboba Road heading towards the Soboba Casi no. He was behind a couple of cars also heading towards the casino. Mr. Moronez saw th e . . . pickup passing him on his left side6 in the oncoming traffic lane going about tw ice as fast. The white Cadillac was coming westbound from the other directi on, and it swerved to its right towards the north shoulder. The . . . pickup swerved to its left towards the north shoulde r. The two vehicles hit headon. The collision was in the nature of an explosion with debris flying everywhere.'" 4
"'Detective Chris Ramos found a cell phone inside the [pickup]. The contents of the cell phone included digital photographs of the firearms recove red by Corporal Scott Davis.'" "'The guns recovere d by Corporal Scott Davis . . . were guns thrown from the [pickup] during the course of the pursuit.'" 5 CHP Investigator Justin Snider testifie d that he reviewed the video footage from the dashboard camera of Officer Stehli's crui ser and considered other evidence, including photographs and tire marks; he also visited the accident scene. Investigator Snider opined that the pickup and Cadillac were involved in a head-on collision; that the collision occurred because defenda nt was driving the pickup into oncoming traffic; and that, shortly before the accident, the defendan t and the driver of the white Cadillac both attempted to avoid the collision by turning to ward the north should er of the road. Investigator Snider thus opined that the pr imary cause of the co llision was defendant's driving in the wrong lane of traffic.

4 This evidence was read into the record by stipul ation of the parties.
5 See footnote 4, ante

.7 DISCUSSION
I Admission of Video Evidence of Defendant's Guilty Plea
A. Additional Background Chandler City Police Officer John Allison testified about an incident involving defendant that took place in Arizona in February 2008. While conducting routine traffic enforcement on his fully-marked police motorcycle while wearing his police uniform and a badge, Officer Allison heard a sound that wa s "consistent with tires locked and skidding on asphalt roadway." Officer Allison sa w a blue-colored vehicle stopped in an intersection that he determined had fa iled to yield to oncoming traffic. As the blue-colored vehicl e drove past, Officer Allison pulled directly behind it, activated his lights and siren and attempted to stop the vehicle. The blue-colored vehicle did not stop, however, but continued to travel at a constant rate of speed. As Officer Allison followed the vehicle, he made eye c ontact several times with the driver of the vehicle through the vehicle's rearview mirror. Officer Allison identified defendant as the driver of the blue-colored vehicle. At some point, the driver of the blue-colored vehicle pulled into a convenien ce store parking lot and stopped. After altering dispatch of the need for backup, Offi cer Allison sat on his motorcycle di rectly behind the vehicle. After a few seconds, Officer Allison dism ounted his motorcycle and took a few steps toward the vehicle. Officer Allison testif ied that as he approached the vehicle, he had a "clear[]" visual of the face of its drive r, who he again identified as defendant. The driver of the blue-colored vehicle in response accelerated suddenly and headed westbound. Officer Allison watched the vehicl e go through a red light at an intersection8 without slowing, narrowly missing other vehicl es that had entered the intersection on a green light. Officer Allison got back on his motorcycle and followed the blue-colored vehicle, which he estimated was traveling at a high ra te of speed, perhaps 100 miles per hour. Because the blue-colored vehicle was going so fast and was about a quarter-mile ahead of him, Officer Allison advised dispatch he wa s discontinuing the purs uit. A short time later, as Officer Allison was heading to the police station, dispatch notified him of a single-vehicle accident close to his location. Dispatch's descri ption of the vehicle matched the vehicle Officer Allison had been pursing. At the accident scene, Officer Allison sa w the same blue-colored vehicle he had been pursuing stopped on top of a sidewalk. The vehicle ha d sustained significant frontend damage after it hit a permanently-affixe d traffic control sign and sheared a fire hydrant off its base. Based on the skid mark s, Officer Allison determined the vehicle was going too fast when the driver attempted to make a turn. The record shows outside the presence of the jury, th e court addressed whether defendant's guilty plea and c onviction in Arizona would be admissible in evidence. During the hearing, the People noted witne sses reported seeing the driver of the bluecolored vehicle, the defendant, running from th e scene with a gun in his hand. Although the police never recovered the gun, inside the vehicle they found "ammunition all over the floor." The People argue d the evidence was relevant in the instant case to show "implied malice"; that is, to show that running from police and driving in such a manner supported the inference that the defendant in the instant case had a "subjective understanding" of the dangerousness of this type of situation.9 The court noted there was a video of de fendant pleading guilty to the offense of "felony endangerment." The People noted that defendant in the video acknowledged that "what he did endangered the motoring pub lic with an imminent risk of death." The defense argued the guilty plea in the Arizona case was not relevant on the issue of malice, which required a showing of subjective awareness by the actor. As relevant here, the defense also briefly argue d the court should exclude the video under Evidence Code section 352 beca use it showed defendant pleadi ng guilty in "jail garb." The court ruled the gun, or "missing g un," and the ammunition found in the bluecolored vehicle were inadmissibl e. With respect to the guilty plea and factual basis for the plea, the court then reserved ruling on whether the video itself was admissible but decided the evidence was otherw ise admissible on the issue of malice. In so doing, the court noted it was not admitting such eviden ce under Evidence Code section 1101. The record shows the court subsequently reviewed the video (i.e., exhibit 1) and a transcript of the video and found the video admi ssible. In reaching its decision, the court noted: "This whole plea and prior occasion [from Arizona] is relevant to the extent that it makes an impression on the defendant as to the seriousness and dangerousness of the conduct that he engaged in back in Ariz ona. And seeing the Court proceedings and seeing the formality of the situation or the lack of formality is all relevant to determine -- that the jury has to make the determination whether or not going through that whole exercise did indeed make an impression on the defendant to raise his subjective awareness about the seriousness of the conduct and dangerousness of the conduct. [¶] And, therefore, actually seeing him in court in jail garb, I think, is relevant to whether or10 not it did have an effect on his subject awareness. And, therefore, I th ink it's relevant that they see it as well as hear it."
B. Implied Malice "Murder is the unlawful killing of a human being . . . with malice aforethought." (§ 187, subd. (a).) "[M]alice may be implie d when a person, knowing that his conduct endangers the life of another, nonetheless acts deliberately with conscious disregard for life. [Citations.]" ( People v. Watson (1981) 30 Cal.3d 290, 296, italics omitted ( Watson ) [affirming second degree murder conviction arising out of a high-speed, head-on automobile collision by a drunk driver that left two people dead].) In Watson , our Supreme Court "created [a] theory for pros ecuting vehicular homicide as second degree murder in cases involving implied malice. [Citation.]" ( People v. Doyle (2013) 220 Cal.App.4th 1251, 1266, fn. 4.) The Watson court reasoned: "[A] finding of implied malice depends upon a determin ation that the defendant actually appreciated the risk involved, i.e., a subjective standard. [Citation.]" ( Watson , supra , 30 Cal.3d at pp. 296– 297.) Accordingly, when the driver's cond uct in a vehicular homicide case "can be characterized as a wanton disregard for lif e, and the facts demonstrate a subjective awareness of the risk created, malice may be imp lied. [Citation.] In such cases, a murder charge is appropriate." ( Id. at p. 298; see People v. Ortiz (2003) 109 Cal.App.4th 104, 109–110.) Here, using CALCRIM No . 520, as modified, 6 the court instructed the jury in part that to prove murder, the People must prove among other things that defendant "acted

6 CALCRIM No. 520, as modified, provides : "The defendant is charged in Count One with Second Degree Murder in violation of Penal Code section 187. [¶] To prove11 with implied malice." The court further inst ructed that defendant acted with implied malice if, "[a]t the time he acted, he knew hi s act was dangerous to human life" and if he "deliberately acted with conscious disregard for human life." Defendant wisely does not contend that his Arizona guilty plea and conviction were irrelevant and inadmissible in the in stant case on the issue of implied malice. Indeed, the evidence in the reco rd shows that in February 2 008, defendant reached speeds of perhaps 100 miles per hour while driving on city streets in Mari copa County, Arizona, while being pursued by Officer Allison; that Officer Allison, who was on a police motorcycle, discontinued the chase for safety reasons; that defendant drove through a red light and nearly hit other vehicles who had th e right-of-way in order to evade police; and that defendant ultimately crashed his vehicle into a sign post and fire hydrant, and ended up on a sidewalk, after he was unable to comp lete a turn given his high rate of speed.

that the defendant is guilty of this crime, th e People must prove tha t: [¶] 1. The defendant committed an act that caused th e death of another person; [¶] [AND] [¶] 2. When the defendant acted, he had a state of mind called implied malice aforethought. [¶] The defendant acted with implied ma lice if: [¶] 1. He intentio nally committed an act; [¶] 2. The natural and probable conseq uences of the act were danger ous to human life; [¶] 3. At the time he acted, he knew his act was da ngerous to human life; [¶] AND [¶] 4. He deliberately acted with conscious disreg ard for human life. [¶] Implied malice aforethought does not require hatred or ill will to ward the victim. It is a mental state that must be formed before the act that causes death is committed. It does not require deliberation or the passage of any particular pe riod of time. [¶] An act causes death if the death is the direct, natural, and probable c onsequence of the act a nd 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 deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence. [¶] There may be more than one cause of death. An act causes death only if it is a substantial factor in causing the death. A substantial factor is more than a trivial or remote factor. Howeve r, it does not need to be the only factor that causes the death."12 What's more, the video of the court proc eedings that took place in late December 2009—just about 14 months before the fata l accident here—shows defendant pleading guilty to felony endangerment and admitting he "placed others on the road in imminent risk of death by driving erratically while tryi ng to flee from police." Clearly, defendant's guilty plea and conviction, and the video sh owing him pleading gui lty and admitting he placed others in "imminent risk of death" in attempting to evade police, were relevant here on the issue of whether defendant subj ectively appreciated that his conduct was dangerous to human life when he evaded police fo r almost 13 miles by driving at a high rate of speed through multiple stop signs, red lights and into oncoming traffic. (See
Watson , supra , 30 Cal.3d at pp. 296–297.)
C. Presumption of Innocence, Evidence Code Section 352 and "Jail Garb" Despite pleading guilty to felony enda ngerment in Arizona and despite the relevancy of that plea on the issue of implie d malice, defendant nevertheless contends the court erred when it admitted th e video of his guilty plea b ecause that video showed him wearing "jail garb." In making this conten tion, defendant relies on a line of cases holding that requiring a defendant to wear jail clot hing during trial violates a defendant's constitutional rights to a fair trial, due pr ocess and equal protection because doing so "creates an unacceptable risk of undermining th e presumption of innocence in the jury's eyes." ( People v. Meredith (2009) 174 Cal.App.4th 1257, 1262, citing Estelle v. Williams (1976) 425 U.S. 501, 503-505 ( Estelle ); People v. Taylor (1982) 31 Cal.3d 488, 494-495 ( Taylor ).) "There are substantial reasons for the rule that a criminal defendant is entitled to be tried in ordinary clothing. Foremost is the rationale that comp elling a defendant to go13 to trial in jail clothing coul d impair the fundamental pres umption of our system of criminal justice that the defendant is i nnocent until proved guilty beyond a reasonable doubt. ( Estelle [,] supra , 425 U.S. at p. 504 [other cita tions omitted].) To implement and protect the presumption of innocence, 'courts must be alert to factors that may undermine the fairness of the factfinding process.' ( Estelle , supra , 425 U.S. at p. 503.) The Supreme Court has observed that the defendant's jail clot hing is a constant reminder to the jury that the defendant is in custody, and tends to undercut the presum ption of innocence by creating an unacceptable risk that the jury will impermissibly consider this factor. (425 U.S. at pp. 504–505.) The clothing inexorab ly leads to speculatio n about the reason for defendant's custody status, which distracts th e jury from attention to permissible factors relating to guilt. In most instances, parading the defendant before th e jury in prison garb only serves to brand the defe ndant as someone le ss worthy of respect and credibility than others in the courtroom. 'The prejudice may only be subtle and ju rors may not even be conscious of its deadly impact, but in a system in which every person is presumed innocent until proved guilty bey ond a reasonable doubt, the Due Process Clause forbids toleration of the risk. Jurors required by the presumption of in nocence to accept the accused as a peer, an individual like themse lves who is innocent until proved guilty, may well see in an accused garbed in prison attire an obvi ously guilty person to be recommitted by them to the place where his clothes clearly show he belongs.' ( Estelle [,]

supra , 425 U.S. at pp. 518–519 (dis. opn. of Brennan, J.).) "Another reason for disfavoring the us e of prison clothes during trial was articulated in People v. Zapata (1963) 220 Cal.App.2d 903. That court recognized that beside the potential prejudice raised in the minds of the jurors, the defendant may be14 handicapped in presenting his defense by the embarrassment associated with his wearing jail garb." ( Taylor , supra , 31 Cal.3d at pp. 494–495.) We conclude neither reason for the prison- garb rule applies to the case at bar because the record show s defendant wore "civilian clothes" during the trial in the instant case and because the defendant was seen wearing jail clothes in the video while he was pleading guilty for fe lony endangerment. Thus, there clearly was no risk of undermining the presumption of innocence in connection w ith either the instant case or the Arizona

case. We likewise reject defendant's contentio n the court abused its discretion when it failed to exclude the video under Evidence C ode section 352. This statute provides a "court in its discretion may exclude eviden ce if its probative value is substantially outweighed by the probability th at its admission will (a) ne cessitate undue consumption of time or (b) create substantial danger of undu e prejudice, of confusing the issues, or of misleading the jury." Here, we conclude the court properly exercised its discretion in admitting under Evidence Code section 352 the video of the Arizona proceedi ng showing defendant in jail clothes pleading guilty to felo ny endangerment. As noted ante , such evidence was highly relevant to the issue of implied malice a nd, in particular, defendant's subjective understanding of the dangerous ness of driving recklessly while evading police. In addition, such probative evidence was not "substantially outweighed" by any potential prejudice, given, as also noted ante , that defendant in the video was pleading guilty to felony endangerment. We thus reject de fendant's contention the court abused its discretion and erred in adm itting the video of his late-D ecember 2009 guilty plea in15 Arizona. (See People v. Karis (1988) 46 Cal.3d 612, 638 [noting the "prejudice which exclusion of evidence under Ev idence Code section 352 is designed to avoid is not the prejudice or damage to a defense that natu rally flows from relevant, highly probative evidence," but rather the "'"prejudice" referre d to in [this statute] applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues'"]; see also People v. Thomas (2011) 51 Cal.4th 449, 485 [noting a cour t of review will not disturb a court's exercise of discretion to admit or exclude eviden ce under Evidence Code se ction 352 unless the court manifestly abused its discreti on and the abuse resulted in a miscarriage of justice].)
II Sufficiency of the Evidence on Count 2 Defendant contends there is insufficien t evidence to support his conviction on count 2 for evading a pursuing police officer and causing th e death of victim Morgan. Specifically, he contends the evidence is insuffici ent to show for purposes of Vehicle Code section 2800.3, subdivis ion (b) that: 1) he was bein g actively pursued by a police officer when he collided with and killed victim Morgan; 2) he saw or reasonably should have seen the lighted red lights on the police cruiser driven by Officer Stehli in pursuit; and 3) his attempts to evade Officer Steh li proximately caused the fatal accident.
A. Guiding Principles Subdivision (b) of Vehicle Code section 2800.3 provides: "Whe never willful flight or attempt to elude a pursuing peace officer in violation of Secti on 2800.1 proximately causes death to a person, the person driving the pursued vehicle, upon conviction, shall be punished by imprisonment in the state prison for a term of 4, 6, or 10 years." Vehicle16 Code section 2800.1, subdivis ion (a) provides: "Any pe rson who, while operating a motor vehicle and with the intent to evade, willfully flees or otherwise attempts to elude a pursuing peace officer's motor vehicle, is guilty of a misdemeanor punishable by imprisonment in a county jail fo r not more than one year if all of the following conditions exist: [¶] (1) The peace officer' s motor vehicle is exhibiting at least one lighted red lamp visible from the front and the person either sees or reasonably should have seen the lamp. [¶] (2) The peace officer 's motor vehicle is sounding a siren as may be reasonably necessary. [¶] (3) The peace o fficer's motor vehicle is dis tinctively marked. [¶] (4) The peace officer's motor vehicle is operated by a peace officer, as defined in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2 of th e Penal Code, and that peace officer is wearing a distinctive uniform." Here, there is substantial evidence in the record to suppor t the finding that defendant was in violation of Vehicle Code section 2800.1, subdivision (a), inasmuch as Officer Stehli testified, and the video record ing from his dashboard camera shows, that Officer Stehli turned on his po lice cruiser's red lights and siren in order to make a stop of the pickup being driven by defendant; that hi s police cruiser was di stinctly marked from the front fender to the back fender with City of Beaumont police emblems; and that Officer Stehli was wearing a distinctive police uniform and was a pea ce officer within the meaning of the law. (See People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 294 [noting that in assessing a claim of sufficien cy of the evidence, a court "'"'"must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence —that is, evidence which is reasonable, credible, and of17 solid value—such that a reasonable trier of fact could find the defe ndant guilty beyond a reasonable doubt"'"'"].) That defendant contends there was insuffi cient evidence to prove he saw, or a reasonable person should have seen, Officer Stehli's police lights for purposes of Vehicle Code section 2800.1 would require us to ig nore the evidence in the record, and the reasonable inferences to be dr awn from such ev idence. (See People v. Lopez (2013) 56 Cal.4th 1028, 1069-1070 [noti ng substantial evidence incl udes circumstantial evidence and any reasonable inferences that can be dr awn therefrom].) Such evidence includes the testimony of Officer Stehli that he turned on the lights of his police cruiser and activated his siren when he attempted to pull over the pi ckup being driven by defendant, as further supported by the video from Officer Stehli's dashboard camera. Such inferences include the fact that, after Officer St ehli activated his cruiser's police lights and siren, defendant immediately sped off in his pickup. (See People v. Maury (2003) 30 Cal.4th 342, 403 ( Maury ) [noting that in conducting a substantia l evidence review, a court of review neither resolves credibility issu es nor evidentiary conflicts].) We thus reject defendant's contention the evidence was in sufficient to show he, or a reasonable person in his position, allegedly did not see the police lights Officer Steh li activated when he sought to pull over the pickup bei ng driven by defendant. We also reject defendant's contention th at the evidence was in sufficient to show Officer Stehli was not "pursuing" him for purpos es of Vehicle Code section 2800.3 when defendant's pickup collided he ad on with victim Morgan's Cadillac. Viewing the evidence in the reco rd in the light most favorab le to the judgment (see People v. Johnson18 (1980) 26 Cal.3d 557, 578), we conclude it supports the finding that the collision occurred while Officer Stehli was pursuing defendant. Indeed, as noted, the record shows that Officer Stehli pursued defendant for almost 13 miles, as defendant drove through multiple stop signs and red traffic signals; that as defendant approached the casino located on the Soboba Indian Reservation, Officer Stehli slowed down and, at one poi nt, lost sight of the pickup because Officer Stehli did not want to put the public at further risk, par ticularly in light of the fact defendant was driving his pickup in and out of oncoming traffic and because Officer Stehli knew the area well and knew it typically had a lot of pe destrian and vehicle traffic; that even though Officer Stehli sl owed down, he continued to travel in the same direction as the pickup; that just seconds after slowing do wn, he saw a "dust cloud" ahead suggesting there had been some sort of ac cident involving the pickup; and that just before he saw the dust cloud, Officer Stehli had "reduced" the lights on his police cruiser but nonetheless continued to use the cruiser's a lternating red and blue lights. That there is evidence in the record Officer Stehli, mo ments before the crash, had told dispatch he was calling off the pursuit doe s not change our conclusion in this case, particularly given the evidence summarized ab ove. At most, such evidence created a mere evidentiary conflict that the jury resolved against defendant. (See Maury , supra , 30 Cal.4th at p. 403.) In any event, we not e from the record that defendant himself still believed he was being pursued by police at the time of the co llision with victim Morgan, inasmuch as defendant—at the time of th e collision—had crossed over a double yellow line into oncoming traffic to es cape the police. We thus reject his contention that the19 evidence in the record was insufficient to show he was be ing "pursued" at the time of the collision for purposes of Vehicle Code section 28 00.3, subdivision (b). We further conclude this same evidence supports the finding of the jury that defendant's attempt to flee from and/or elude police was the proximate cause of victim Morgan's death. What's more, after reviewing among other evidence the video fro m Officer Stehli's dashboard camera, CHP Investigator Snider opined that the primary cause of the head-on collision was defendant's driving in the wrong lane of traffic. Investigator Snider's conclusion is fully supported by the record, including, bu t not limited to, the above summarized evidence and evidence that during the 13-mile police chase, defendant on more than one occasion crosse d a double yellow line at a high rate of speed into oncoming traffic, while being pursued by Officer Stehli, cl early to flee from or elude police. (See Veh. Code, § 2800.3, subd. (b).)
III Remaining Contentions
A. Limiting Instruction: Arizona Guilty Plea Defendant contends the c ourt violated his constitutional rights when it failed to give the jury a limiting instruction that it coul d consider his Arizona guilty plea for felony endangerment only for the purpose of determin ing whether he was subjectively aware of the risks to human life in fleeing from the pol ice for purposes of showing implied malice. (See Watson, supra, 30 Cal.3d at pp. 296–297.) Briefly, the record shows that when th e trial court ruled to admit the Arizona guilty plea, it stated it would give a "properly drafted limiti ng instruction saying it can20 only be used for the limited purpose of the de fendant's subjective awareness of this type of activity and the dangerousn ess of this activity." The record also shows defendant neither requested such a limiting instruction nor prepared a "properly drafted" instruction, and the court did not sua sponte give such an instruction. The People initially contend defendant fo rfeited this issue because he failed to request such an instruction. Defendant recognizes the forfe iture doctrine but contends it does not apply in his case because of the "n arrow exception" to that doctrine, which applies when the evidence is a "'"dominant part of the evid ence against the accused, and is both highly prejudicial and minimally re levant to any legitimate purpose."'" ( People v. Murtishaw (2011) 51 Cal.4th 574, 590; see Evid. Code, § 355 [providi ng when evidence is admissible for one purpose and in admissible for another, "the court upon request shall restrict the evidence to its proper scope an d instruct the jury accordingly" (italics added)].) Defe ndant contends that his Arizona guilty plea was in fact a "dominant part" of the People's evid ence against him. We conclude the "narrow exception" to forfeiture does not apply to defendant because we disagree with his contention that the Arizona guilty pl ea was the "dominant part" of the evidence against him to support his conviction in count 1. As summarized

ante , Officer Stehli testified defendant in his pickup failed to stop at several stop signs and red light signals, and also crossed do uble yellow lines and drove into oncoming traffic, during the 13-mile pursuit. This testimony was corroborated by the video from the dashboard camera mounted on his patrol cruiser, which was shown to the jury as Officer Stehli gave his testimony.21 What's more, the record also includ es the testimony of Art Moronez, who witnessed the crash between defendant and victim Morgan, and of CHP Investigator Snider, who opined that th e primary cause of the collis ion that killed Morgan was defendant's decision to drive on the wrong side of a two-lane road. We conclude that the above evidence was far more da maging than defendant's Ar izona guilty plea and that, even without regard to that pl ea, such evidence was more th an sufficient to establish the requisite implied malice to support defe ndant's conviction in count 1. (See People v. Lashley (1991) 1 Cal.App.4th 938, 945-946 [noting that malice may be, and usually must be, proved by circumstantial evidence, which is ultimately a question for the trier of fact].) Assuming the issue was not forfeited, we reject defendant's contention that his conviction must be reversed because he a llegedly received ineffective assistance of counsel. It is axioma tic that to "show denial of that right, a defendant must show (1) his or her counsel's performance was below an objective standard of reasonableness under prevailing professional norms and (2) the defici ent performance prejudi ced the defendant. ( Strickland [ v. Washington (1984) 466 U.S. 6 68,] 687, 691-692 [( Strickland )] [other citations omitted].) To show prejudice, a de fendant must show there is a reasonable probability that he or she would have receiv ed a more favorable result had his or her counsel's performance not been deficient. [Citations.] 'When a defendant challenges a conviction, the question is whether there is a reasonable probability that , absent the [trial counsel's] errors, the factfi nder would have had a reasona ble doubt respecting guilt.' [Citation.] 'A reasonable probability is a pr obability sufficient to undermine confidence in the outcome.' [C itation.] It is the defendant's burden on appeal to show that he or she22 was denied effective assistan ce of counsel and is entitled to relief. [Citation.] '[T]he burden of proof that th e defendant must meet in order to establish his [or her] entitlement to relief on an ineffective-assistance claim is preponderance of the evidence.' [Citation.]" ( In re Hill (2011) 198 Cal.App. 4th 1008, 1016.) Here, we conclude that even if defens e counsel's performance was deficient for failing to request a limiting instruction in connection with defend ant's Arizona guilty plea, there was no resulting prejudice because of the overwhelming evid ence of guilt, as summarized ante . Because defendant on this record has not shown that, but for defense counsel's error, there was a reasonable probability the re sult of the proceeding would have been different (see Strickland , supra , 466 U.S. at p. 694), we reject his ineffective assistance of counsel claim. (See People v. Sanchez (1995) 12 Cal.4th 1, 40-41 [noting if a defendant fails to establish prejudice, a court of review may reject defendant's ineffective assistance of couns el claim without determining whether defendant's counsel's performance was deficient], disapprove d on another ground as stated in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
B. Pinpoint Instruction: Implied Malice Defendant next contends the court erre d when it refused to give his proposed pinpoint jury instruction regarding implied ma lice. Relying on a paragraph from the case of People v. Contreras (1994) 26 Cal.App.4t h 944, 954-955, defendant contends the court should have instructed the jury as follo ws: "Considerations such as whether the act underlying the homicide is a felony, a misd emeanor or inherently dangerous in the abstract, are not dispositive in assessing whethe r a defendant acted with implied malice.23 A finding of implied malice must be based upon considerations of the circumstances preceding the fatal act." In refusing this instruction, the court f ound that this proposed instruction was not "particularly well worded"; that while the la nguage may have been appropriate for an appellate decision, it was not appropriate as a jury instruction; a nd that the court was somewhat confused by the poin t of this language/proposed instruction because "[i]mplied malice is more than just anytime someone do es an inherently dangerous act . . . ." With regard to the latter point, the court noted that whether an act is inherently dangerous was "something the jury can and should consider in deciding whether or not implied malice is present." The court agre ed with defendant th at whether an act constitutes a felony or misdemeanor was "not re levant." As such, the court stated if defendant wanted to "redraft something that just goes to felony or misdemeanor, [it] certainly wouldn't have a problem with that , but this notion that you can't consider inherently dangerous or that you can consider it but it's not disposit ive, that just gets confusing . . . , and as drafted it's denied." In explaining the need for the proposed pi npoint instruction, the defense noted its concern that in deciding implied malice, a "j uror might be stopping [his or her] analysis at -- at the act alone and not considering ever ything [he or she is] supposed to consider," and that therefore the proposed instruction told the jury "[t]he y need to consider everything surrounding -- all the circ umstances preceding the act." A trial court is required to instruct jurors on general principles of law relevant to the issues raised by the evidence. ( People v. Valdez (2004) 32 Cal.4th 73, 115.) Defendants are further entitled, up on request, to instructions th at pinpoint the theory of24 the defense case. ( People v. Gutierrez (2002) 28 Cal.4th 1083, 1142.) However, "[w]hen examining whether a court erred in not giving a pinpoint instruction, we are mindful of the general rule that 'a tria l court may properly refuse an instruction offered by the defendant if it incorrectly stat es the law, is argumentative, duplicative, or potentially confusing [citation], or if it is not supporte d by substantial evid ence [citation].' ([ People
v. Moon (2005) 37 Cal.4th 1, 30].)" ( People v. Mackey (2015) 233 Cal.A pp.4th 32, 111.) Here, as noted, the jury was instruct ed with CALCRIM No . 520. Among other instructions, the jury was to ld that implied malice was a "mental state that must be formed before the act that causes death is committed." (Italics a dded.) It also was told that in determining whether defendant acted w ith implied malice, it was to consider "all of the circumstances established by the evid ence" in determining whether the "natural and probable consequences of the ac t were dangerous to human life." The record shows th at the defense argued to the jury during closing that the "jury instruction tells you [i.e., the ju ry] to look at all of the ci rcumstances" in evaluating the issue of implied malice. The record also shows the defense next reviewed "all the circumstances in this case," including, by way of example only, where the pursuit began and ended; the speeds attained during the pursuit; the traffic patterns during the pursuit; and the conduct of Officer Stehli during the pursuit, including using his cell phone to call dispatch while chasing the pickup being dr iven by defendant. We thus independently conclude the pinpoint instru ction proposed by defendant was duplicative of CALCRIM No. 520, particularly when cons idered in light of the defens e's concerns, the alleged need for the proposed instruction and th e defense's closing argument.25 In any event, even if we concluded the court erred in failing to give the proposed pinpoint instruction, we nonetheless would conclude that error was harmless given the overwhelming evidence of guilt, including on the issue of whether defendant harbored the requisite implied malice to support his conviction on count 1. (See People v. Hughes (2002) 27 Cal.4th 287, 363 [noting even if th e trial court erred in refusing to give a pinpoint instruction concerning a robbery ch arge, that error was harmless because there was no reasonable probability the jury would have failed to find a robbery occurred, inasmuch as the jury was pr operly instructed on the elem ents of robbery and defense counsel argued during closing the very point addressed in the pi npoint instructed rejected by the court].)
C. Abstract of Judgment and Minute Order Defendant contends, and the People con cede, that the abstract of judgment incorrectly shows that the cour t imposed a concurrent term on count 5 (i.e., a felon in possession of a firearm) rather than a stayed sentence under Penal Code section 654, subdivision (a), as actually pr onounced by the court. We agree. Additionally, we note that the minute order dated September 16, 2013 incorrectly identifies the code section for the count 2 conviction as Vehicle Code secti on 2800.2, when it should be Vehicle Code section 2800.3.
DISPOSITION The superior court is directed to corre ct the minute order to reflect defendant's conviction under Vehicle Code se ction 2800.3, rather than Ve hicle Code section 2800.2, and stay under Penal Code section 654, su bdivision (a) the sentence on count 5. The court is further directed to prepare an am ended abstract of judgment and to forward a26 certified copy of the same to the Department of Corrections and Rehabilitation. In all other respects, the judgment of conviction is affirmed.

BENKE, Acting P. J.
WE CONCUR:

HUFFMAN, J.

O'ROURKE, J.