Filed 9/14/15 P. v. Farley CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent,

v.
AUSTIN JEFFREY FARLEY, Defendant and Appellant. G049516
(Super. Ct. No. 11HF1409)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County,
James R. Brandlin, Judge

. (Judge of the L.A. Sup er . Ct

. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal.Const.) Affirmed as modified

.

David P. Lampkin, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr. , and Marilyn L. George, D eputy Attorneys General, for Plaintiff and Respondent.
* * *2 INTRODUCTION While inebriated, Austin Jeffrey Farley drove a pickup truck into another vehicle, killing one of its passengers and injuring four others. A jury convi cted Farley , as charged, of one count (count 1) of second degree murder (Pen. Code, § 187, subd. (a)), one count (count 2) of driving under the influence causing bodily injury (Veh. Code , § 23153, subd. (a)), and one count (count 3) of driving with a blood

- alcohol level of
0.08 percent or more causing bodily injury ( id. , § 23153, subd. (b)). As to counts 2 and 3, the jury found to be true two enhancement allegations under Penal Code
section 12022.7 of infliction of great bodily injury.

The trial court sen tenced Farley to a prison term of 21 years to life, consisting of the upper term of three years on count 2, a consecutive term of three years
for an enhancement on count 2, and a consecutive, indeterminate term of 15 years to life

on count 1. Sentence on count 3 and on the enhancements to that count was imposed and
execution of sentence was stayed under Penal Code section 654.

With respect to each of Farley’s contentions, we conclude:
1. T he evidence of implied malice was sufficient to uphold the conviction
for second degree murder

.

2. The trial court did not err in admitting evidence of the facts regarding a prior drunk driving conviction. Even if the trial court err ed by allowing evidence of an incident of uncharged reckless drivi ng , the jury instructions rendered any error harmless

.

3. T he trial court did not err by allowing testimony about statements made

at a Mothers Against Drunk Driving ( MADD ) victim impact panel attended by F arley

.

4. Farley’s trial counsel was not ineffective by failing to object and move
to strike cross

- examination testimony of Farley’s expert psychologist, and any error by
the trial court in overruling certain other objections w as harmless

.

5. Farley’s t rial counsel was not ineffective by conceding the knowledge element of implied malice in closing argument

.3 6. There was no cumulative error.
7. Se ntence on the enhancement that was incorrectly imposed against

count 1 must be vacated

.

8. C redits were stated correctl y in the abstracts of judgment
We therefor e vacate the sentence on the enhancement on count 1 and in all other respects affirm.

FACTS
I

. The Fatal Collision
At about 1:15 a.m. on May 29, 2011, M .G. was driving his 2008 Mercedes
Benz northbound on Culver Drive in the City of Irvine. He had picked up his 14

- year

- old daughter , P.G. , and her friends , K.M., A.R., and A.S. , at a friend ’ s house and was taking
them home. As M.G. approached the intersection with Irvine Boulevard, he noticed, in a southbound lane of Culver Drive, a vehicle that seemed to be slowly turning left against a red light into the intersection. The light was green for M.G. , and he flashed his high
beams once or twice “ to get the driv er ’ s attention ” before proceeding into the
intersection. The vehicle, a 2003 Dodge pickup truck driven by Farley, did not stop, but
accelerate d . Farley drove the truck through a red light, made a left turn into the intersection, and struck M.G. ’ s car on the driver ’ s side between the driver ’ s door and the passenger door. The impact caused M.G. ’ s car to spin 180 degrees counterclockwise, travel northward, and strike a light pole at the northeast corner of the intersection.

A.S., who was seated in the driver ’ s side rear passenger seat, was killed.
The cause of death was blunt cranial cerebral trauma. K.M., who was seated in the middle of the rear passenger seat, suffered broken ribs, a punctured lung, an inflamed spleen, and lacerations to her face.4 N either Farley nor his passenger, J.R., was injured. Immediately a fter the crash, J.R. heard Farley say, “ I ’ m fucked. ” Farley tried to drive away, but his truck was badly damaged and stalled in the middle of the road, 30 to 40 feet from the crash site.

T imothy Song was driving home and was stopped at a red light on Irvine Boulevard when the collision occurred. When, a few second s later, Song had a green light, he drove to M.G. ’ s car, stopped, and turned on his car ’ s hazard lights. Song got out
of his ca r, ran to the Mercedes, and asked if everyone was all right. Someone from inside the Mercedes asked Song to get the license number of the other vehicle. Song walked over to Farley ’ s pickup truck . He noticed the truck ’ s rear wheel was still spinning

. Wh en Song asked if Farley and J.R. were okay, J.R. asked Song, “ is she dead? .

. . [ T ] he girl, is she okay? Is she alive? ”

Irvine Police Officer Sean Metevia arrived at the scene at 1:19 a.m. When Metevia approached Farley ’ s truck, the engine was still ru nning. Metevia noticed that Farley ’ s eyes were watery and bloodshot . Metevia heard J.R. say to Farley , “ you didn ’ t see the red ” and Farley respond, “ light was green. ”

Farley acknowledged that he had been drinking . He told the police officers
he drank two or three beers during the course of the evening and did not feel the effects
of the alcohol. A t est of a blood sample drawn from Farley at 2:59 a.m. showed a
blood

- alcohol level of 0 .20 percent. The forensic scientist who conducted the test
estimated that Farley ’ s blood

- alcohol level at 1:15 a.m. had bee n 0 .22 percent to 0 .23 percent. The scientist believed that a man of Farley ’ s height ( six feet two inches ) and weight (220 pounds) would have to drink 15 to 16 “ standard drinks ” to reach a
0 .23 percen t blood

- alcohol level. Surveillance video showed that Farley and J.R. had
been at a bar from 10:14 p.m. to 12:34 a.m.

Farley ’ s blood sample also had a therapeutic level of clonazepam ( K lonopin), a form of benzodiazepine that is prescribed for stress or as an antiepileptic

. Klonopin is a central nervous system depressant and can intensify the effects of alcohol.5

Farley took K lonopin to treat obsessive

- compulsive disorder (OCD) and severe anxiety , and earlier on the day of the collision , he had taken two pills instead of the prescribed dosage of one pill.
II

. Farley’s Police Interview Farley was taken into custody and interviewed by Irvine P olice O fficer Allyson Maddy at 6: 07 a.m. on May 29, 2011. An officer named Meyer also was present. When Farley entered the interview room, Maddy noticed he emitted a strong
odor of alcohol. The interview started once Farley was read his rights pursuant to
Miranda v. Arizona (1966) 384 U.S. 436.

During the interview, Farley said that on May 28, 2011 , h e had been at his
friend Zach ’ s house and, from there, took a taxi to the “ Dubliner ” bar to celebrate his 26th birthday. Farley took a taxi to the Dubliner so he would not have to drink and drive. Farley said he was at the Dubliner for about 30 minutes and drank “ a couple of beers. ” From the Dubliner, Farley took a taxi back to Zach ’ s house, where he had left his truck. Farley and J.R. had started an argument at the Dubliner, and they continued to argu e on the taxi ride and for an hour outside of Zach ’ s house.

Farley said that he and J.R. decided to drive to a Del Taco restaurant in the area of Yale Street and Irvine Boulevard in the City of Irvine. They got in to Farley ’ s truck, and he drove to the Del Taco restaurant

. He felt safe to drive based on the amount of time that had elapsed since he had a drink and on the fact he only drank three beers that evening. Farley drove southbound on Culver Drive, and, as h e approached the intersection with Irvine Boulevard, he saw the traffic light was red for his direction of
travel. He slowed the truck and, wh en he was about 100 feet from the signal , he saw the traffic lights for both the left turn lane and through traff ic lanes had turned green. Farley
entered the number one southbound left turn lan e and turned left into the intersection with
a green arrow signal. He said he was travelling at about 30 miles per hour when he6

entered the intersection. When he had travel led four or five feet into the intersection, he saw a flash of light and “ felt the impact ” seconds later. Farley told Maddy, “ some idiot fucker just booked it right in front of my car and I just smashed right into the side of
him. ” F arley said the car wa s “ blazing through ” the intersection as though it was trying to beat the signal. After the collision, Farley was concerned about the people in the other car but was irritated because the car had pulled in front of him.

Farley said that he and J.R. had be en arguing in the moments leading to the
collision and J.R. was making gestures and screaming in Farley’s face. J.R. did not touch him or any control mechanism on the truck, and , according to Farley , the collision would have occurred regardless of whether he and J.R. had been arguing. When asked if J.R.
had been “ getting physical, ” Farley said, “ no, not really. ”

Farley explained that he had been prescribed K lonopin for OCD and anxiety. The prescribed dosage of K lonopin was one pill three times a day, but that day
he had taken two pills instead of one

. He described his OCD as “ insanely severe ” and his life was unmanageable because of it. The collision did not result from his OCD, and, while OCD caused Farley to want to drink, he did not drink the prior night for that

reason. Due to his OCD, Farley suffers from paranoia and notice s small details

— “ every little thing ”

— such as whether a particular light is burned out. Farley told Maddy and Meyer that he could not have turned left against a red light because “ his OCD demons in
his head would not allow it. ”

Maddy asked Farley about a prior collision when he was 19 years old. Farley said that while driving on Jamboree Road in Irvine , the person in the car behind
him “ flipped him off. ” Farley looked back at that person, and, on looking forward again,
saw the car in front of him slam on the brakes. Farley drove into rear of that car.

Maddy also asked Farley about his arrest in 2009 for driving under the influence. Farley said he had been “ insanely intoxicated ” when that occurred. He served jail time, spent four months in rehab ilitation , and was still on probation for that offense.7

He had been ordered to attend a MADD panel, which he described as “ just a couple of people that went up there and crie d they lost somebody due to a D.U.I. or something. ” Farley also had been ordered to attend meetings of both Alcoholics Anonymous and Narcotics Anonymous . H e thought some of the meetings were “ kind of bullshit ” because they did not relate to him.

When M addy asked Farley if he knew that driving under the influence could lead to a fatality , he said that he did. Maddy asked him whether, upon his prior driving under the influence (DUI) conviction, he had been advised that if he were
involved in another coll ision and was found to be driving while intoxicated and found at
fault , he could be charged with murder. Farley could not recall but said the matter might have come up at the MADD panel.
III

.

Evidence of Knowledge T hat Driving While Intoxicated

Is Danger ous to Human Life On May 4, 2004, Farley received a citation for driving a vehicle as a minor
with a blood

- alcohol level of 0 .05 percent or more. As a consequence of the citation , Farley attended a daylong alcohol awareness program. Gay Sandoval, who wor ked for a company that provided th e alcohol awareness program at Orange Coast College , testified the purpose of th at program was to educate the participants about the dangers of drinking or using drugs and driving. An attorney and a police officer spoke a nd a film was shown.

In 2009, Farley was charged with, and pleaded guilty to, misdemeanor DUI. On the plea form, as the factual basis for his plea, Farley wrote that on February 15, 2009 , he “ did willfully and unlawfully drive a vehicle while under the influence of alcohol with a [blood

- alcohol level] of .08% or greater, to wit: .18%. ” Farley initialed item N o. 8 on the plea form, which gave this warning: “ I have been advised that being under the influence of alcohol or drugs, or both, impairs your ab ility to safely operate a motor vehicle. Therefore, it is extremely dangerous to human life to8

drive while under the influence of alcohol or drugs, or both. If I continue to drive while under the influence of alcohol or drugs, or both, and as a result of that driving someone is killed, I can be charged with murder. ”

Farley attended a MADD victim impact panel on July 2, 2009. Those in attendance at the panel were given an advisement , based on People v. Watson (1981) 30 Cal.3d 290, 296 ( Watson advisement) , of the dangers of drinking and driving. The
Watson advisement warned those in attendance they could be charged with murder if they killed someone while driving under the influence of alcohol. One panel member, Sharry Graham, explained she could be subp oenaed to testify in court that she had provided th e Watson advisement . Graham did indeed so testify at trial.

A s a consequence of his 2009 DUI conviction, Farley was ordered to participate in a six

- month first offend er drinking and driving program, which included
15 two

- hour

- long group sessions, six two

- hour

- long alcohol education lectures, and 12
individual sessions. He completed the program in 2009. In one s ession on alcohol
education , t he p articipants were taught the rate at which alcohol metabolizes so that they could determine how long to wait after drinking before driving an automobile. Th e participants were taught that , generally speaking, one drink is metabolized in an hour.
IV. Expert Psychological Testimony Psychologist Veronica Thomas, Ph.D., was retained to conduct a psychological assessment of Farley and testified as a defense expert witness at trial.
Dr. Thomas reviewed police reports and a letter from Farley ’ s psychiatrist and spent 14
to 20 hours inter viewing Farley and administer ing tests of cognitive function , personality , and memory.
Dr. Thomas noticed that Farley had a difficult time staying focused,

“ engaged in constant rituals and compulsions, ” and was “ extremely anxious. ” She found
that he had several psychiatric impairments, the most notable of which was OCD, which9

caused him to engage in ritualistic, repetitive behavior. As a child, Farley had been diagnose d with a ttention d eficit d isorder and prescribed Ritalin. Although he suffered no mental, sexual, or physical abuse at home, Farley had told Dr. Thomas his primary duty was to keep the peace between a mother who was depressed and had a drinking problem
and a father who had issue s with “ emotional regulation ” and anger. After completing high school, Farley started drinking alcohol and smoking marijuana on a daily basis for recreational purposes, to calm him self down, and to help to lessen his OCD symptoms.

Farley told Dr. Thomas h e had tried to commit suicide several years earlier by taking an entire bottle of K lonopin because “ he couldn ’ t live like this anymore. ” He had difficulty finding and keeping a job because of his need to follow rituals.

Dr. Thomas administered an intell igence test which showed that Farley had normal intelligence. She a lso administered a personality test (the “ Minnesota Multiple Facet Personal Inventory Test ” ) , which required Farley to answer a number of questions. He became so overwhelmed and scared by the test that he took a long time to complete it. He was anxious and had difficulty paying attention.

Dr. Thomas administered a verbal learning test, which measured memory
function , and Farley “ did fine ” on this test. Dr. Thomas administered a
neuropsy chological test that measure d judgment and the ability to make difficult choices. The test showed that Farley “ has a need to respond to things in a certain way and has a hard time being flexible. ” Other tests showed that Farley did not suffer from organi c brain injury and had the ability and motivation to give straightforward and honest answers to questions. The defensive way in which Farley responded to questions on a substance abuse test suggested that he ha s a substance dependence disorder

.

Dr. Thomas diagnosed Farley as having bipolar disorder (severe mood disorder) , alcohol and cannabis dependence, abus e of antianxiety medication, OCD, and personality disorder. While t he OCD was “ the most observable and prominent of the10

disorders , ” t he bipolar disorder is “ associated with depression and impulsivity, frequent[] aggressiveness and difficulty getting along with other people. ”

DISCUSSION
I. The Evidence of Implied Malice Was Sufficient for a Second Degree Murder Conviction. Farley was convicted of second degree murder under a theory of implied
malice

. He contends the evidence of implied malice was insufficient to support the
conviction.

“‘ When considering a challenge to the sufficiency of the evidence to support a conviction, we review the enti re record in the light most favorable to the judgment to determine whether it contains substantial evidence

— that is, evidence that is reasonable, credible, and of solid value

— from which a reasonable trier of fact could find the defendant guilty beyond a re asonable doubt. [Citation.] .

. . We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the
evidence. [Citation.] If the circu mstances reasonably justify the trier of fact ’ s findings,
reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.]

. . . ’” ( People v. D ’ Arcy (2010) 48 Cal.4th 257, 293.)

A conviction of second degree murder requires a finding of malice aforethought. (Pen. Code, §§ 187, subd. (a), 189.) Malice is implied when (1) the killing results from an intentional act; (2) the natural consequence of the act w as dangerous to human life; (3) the defendant knew the act was dangerous to human li fe ; and (4) the defendant deliberately committed the act with conscious disregard for life. ( People v. Taylor (2004) 32 Cal.4th 863, 867.) Implied malice has a physical /objective component
and a mental /subjective component. ( People v. Knoller (2007) 41 Cal.4th 139, 157;11

People v. Taylor , supra , a t p. 867

. ) The physical /objective component is the commission of an act, the natural and probable consequence of which was dangerous to human life.
The mental /subjective component is the defendant ’ s knowledge t he act was dangerous to
human life and the defendant’s deliberate commission of the act with conscious disregard for life. ( People v. Knoller , supra , at p. 157; People v. Taylor , supra , at p. 867

. )

Driving while intoxicated is an act which may support a conviction for second degree murder under an i mplied malice theory : “‘ One who wilfully consumes alcoholic beverages to the point of intoxication, knowing that he thereafter must operate a motor vehicle, thereby combining shar ply impaired physical and mental faculties with a vehicle capable of great force and speed, reasonably may be held to exhibit a conscious disregard of the safety of others. ’” ( People v. Watson , supra , 30 Cal.3d. at pp. 300

- 301.) Following People v. Watso n , n umerous cases have upheld second degree murder convictions based on drunk driving. (E.g. , People v. Batchelor (2014) 229 Cal.App.4th 1102, 1113

- 1115; People v. Johnigan (2011) 196 Cal.App.4th 1084, 1092 ; People v. Ferguson (2011) 194 Cal.App.4th 1070, 1080 ; People v. Autry (1995) 37 Cal.App.4th 351, 358

- 359; People v. Talamantes (1992) 11 Cal.App.4th 968, 973.)

“ In summary, courts have identified factors relevant for upholding a murder conviction based on drunk driving: ‘ (1) a blood

- alcohol level above the .08 percent legal limit; (2) a predrinking intent to drive; (3) knowledge of the hazards of driving while intoxicated; and (4) highly dangerous driving. ’” ( People v. Batchelor , supra , 229 Cal.App.4th at p. 1114.) Not a ll of these factors must be present to uphold a second degree murder conviction. ( People v. Autry , supra , 37 Cal.App.4th at p. 358; People v.
Talamantes , supra , 11 Cal.App.4th at p. 973.)

The evidence established that Farley had a blood

- alcohol level of 0 .22 to
0 .23 percent and had K lonopin in his system when he drove his truck in to M.G. ’ s car. Surveillance video showed that Farley arrived at the Dubliner b ar at 10:14 p .m. and left at
12:34 a.m. Within 45 minutes after leaving the Dubli ner , he decided to drive his truck to12

a Del Taco restaurant

. Farley knew of the dangers of driving while intoxicated. He had attended alcohol awareness class in 2004. When he pleaded guilty to misdemeanor DUI
in 2009 , he initialed the warning on the ple a form that “ it is extremely dangerous to human life to drive while under the influence of alcohol or drugs, or both. If I continue to drive while under the influence of alcohol or drugs, or both, and as a result of that driving someone is killed, I can b e charged with murder. ” He attended a MADD victim impact panel in July 2009 , at which he was given a Watson advisement , and he participated in a six

- month drinking and driving program , at which he learned about the rate at which
alcohol metabolizes. A de fendant ’ s participation in mandatory educational programs is relevant to the issue of knowledge and awareness of the life

- threatening risks of driving under the influence. ( People v. David (1991) 230 Cal.App.3d 1109, 1115.)

Although there was no evidence that Farley had engaged in reckless or highly dangerous driving before the collision, the evidence supported a finding that he
caused the collision by making the highly dangerous maneuver of making a left turn against a red light and accelerat ing into an intersection.

Farley argues there was no evidence of a predrinking intent to drive and h e had take n a taxi to the Dubliner precisely so that he would not have to drive while
intoxicated. People v. Watson , supra , 30 Cal.3d 2d 290 , and its prog eny do not require that all factors, including a predrinking intent to drive, be present to sustain a second degree murder conviction. ( People v. Autry , supra , 37 Cal.App.4th at p. 358; People v.
Olivas (1985) 172 Cal.App.3d 984, 988

- 989 .) “ The criminal act underlying vehicular murder is not use of intoxicating substances in anticipation of driving , but is driving under the influence with conscious disregard for life. Nothing in Watson states that t he
former is necessary to a finding of the latter. ” ( Pe ople v. Olivas , supra , at p p

. 988

- 989.)

A case

- by

- case approach is required. ( People v. Olivas , supra , 172 Cal.App.3d at p. 989

. ) In this case, a t the moment Farley decided to drive his truck to the
Del Taco restaurant , he knew that doing so was dangerous to human life. H e had been13

drinking at a bar for several hours; he was heavily intoxicated and had taken K lonopin that day

. He had a prior DUI conviction , knew of the dangers of drinking and driving , and had been given a warning about the conse quences of killing someone while driving intoxicated. Farley m ade a left turn against a red signal and drove into M.G. ’ s car

. As
stated in People v. Talamantes , supra , 11 Cal.App.4th at p age 973, “ even if , when [Farley] was drinking, he did not know he w ould have to drive

— still the evidence of implied malice is sufficient to sustain the judgment. ”
II. Any Error in Allowing Evidence of Prior Acts of Uncharged Misconduct Was Harmless

. A. Background

In 2005, Farley was involved in a “road rage” incident and hit

- and

- run vehicle collision that did not involve intoxication. He was not charged with an offense. In 2009, Farley pleaded guilty to misdemeanor DUI.

Over Farley’s objection, the trial court ruled that evidence regarding the
2005 road rage inciden t and of the facts behind Farley’s 2009 DUI conviction was
admissible under Evidence Code section 1101, subdivision (b) (section 1101(b)). The court concluded that evidence of Farley’s past driving behavior was relevant to his “subjective actual awareness ” of the fact that driving a vehicle in a reckless manner can cause injury or death. The court stated, “[w]hat is relevant is his state of mind when [Farley] operates a motor vehicle and whether or not he shows the type of caution that we would expect of a reasonably prudent person and his awareness of those risks.”

Farley contends the trial court erred by permitting the prosecution to present evidence of the 2005 road rage incident and of the facts behind the 2009 DUI (other than the fact of the DUI conv iction itself) because that evidence was inadmissible
under section 1101(b) and Evidence Code section 352. The trial court’s decision to admit evidence of prior uncharged acts of reckless and drunk driving under section 1101(b) is14

reviewed under the abuse of discretion standard. ( People v. Kipp (1998) 18 Cal.4th 349, 369; People v. Ortiz (2003) 109 Cal.App.4th 104, 117 ( Ortiz ).) We conclude the trial court did not err by allowing evidence of the facts behind the 2009 DUI. Although the
trial court might have err ed by allowing evidence of the 2005 road rage incident , any error was harmless

. B

. The Challenged Evidence
1. The 2005 Road Rage Incident
Prosecution witness Rocio Bustam a nte testified that sometime before
8:00 a.m. on February 10, 2005 , she was driving her Honda Civic to work. Traffic was backed up. While she was on Jamboree Road near the I nterstate 5 offramp, another vehicle struck her car from behind and pushed it into an intersection. Bustam a nte’s car
was totaled.
Prosecution witn ess Barbara Ramseyer testified that she was in her car near
Jamboree Road and Interstate 5 on the morning of February 10, 2005. Looking in her rearview mirror, she noticed a GMC Yukon SUV driven by Farley, who appeared to be “anxious.” Farley pulled up n ext to Ramsey er . He had his arm out the window and was pounding the outside of the car door. Ramsey er described him as “really angry , ” and she thought to herself, “I wish the light would turn green so I can get away.” The traffic light turned green, but there were too many cars ahead at the intersection for anybody to move. Ramsey er testified: “I could hear him and then he started to try to get in front of me, although , there wasn’t any room and so I thought, well, what do I do? So, I honked my
horn t hinking, okay, please just don’t try to get in front because there is no room to get in front, you are going to hit me. [¶] He wasn’t changing his mind to sit still, so he started moving over in front of me, so I pulled over to the median and stopped and then he came over to where I was originally in the lan e , and then he was still angry and still mad. You
could see it in his face. .

. . [ H ] e just was getting angrier, and then he just floored it or accelerated really quickly, and he made a quick turn to the right and then he hit the15

person in front of me very, very hard and she went off into the intersection and then he took off going towards Jamboree and then kind of at the last minute changed and sped, I mean, really fast down to Edinger exit, so I stop ped and got out to help the lady [who] was driving. [¶] .

. . [¶] .

. . When I honked my horn and he was trying to get in front, he raised his middle finger at me.”

Linda Villelli, a City of Irvine c ivilian t raffic i nvestigator , testified she investigate d the collision, which was considered to be a “hit and run.” When Villelli arrived at the scene, the suspect

— Farley

— was not there. While Villelli was taking witness statements, Farley returned and told Villelli he had been trying to change lanes for quit e some time but another vehicle would not let him over. When he eventually changed lanes in front of that vehicle, the driver honked at him. Farley “flipped

. . . off” the driver and drove into the vehicle ahead of him. After the collision, Farley panic ked, drove to work, and called his parents. His father picked him up and brought him back to the accident scene. No evidence was presented that Farley was charged with an offense arising out of the collision.
2. The 2 009 DUI
Irvine P olice O fficer Shaheen Jahangard testified that on February 15, 2009
at about 6:00 a.m. , he was dispatched in response to a 911 call from Cynthia Farley, Farley’s mother. Cynthia Farley reported that she was in her car with her husband, and they were being chased by Far ley, who was driving a Dodge Dakota truck. Farley was drunk and driving erratically. In the 911 call, Cynthia Farley said they were running red lights and speeding in order to get to the Irvine Police Department for help.

J ahangard arrived at a parking lot at the Irvine Civic Center, where he found Cynthia Farley and her husband. Their car had collision damage to the front left bumper. Jahangard also found Farley at the parking lot and arrested him for DUI. When
discussin g this incident with Maddy, Farley said he had been “insanely intoxicated.”16

C. Evidence Code Section 1101

Evidence Code section 1101, subdivision (a) prohibits admission of evidence of a person ’ s character, including evidence in the form of specific inst ances of uncharged misconduct, to prove the conduct of that person on a specified occasion . The exceptions to the bar on admissibility of evidence of uncharged acts are set forth in
section 1101(b) which states, in relevant part: “N othing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident

. . .) other than his or her disposition
to commit such an act. ”

“‘ [Evidence Code s]ection 1101, subdivision (b) allows evidence of uncharged misconduct when it is relevant to establish a material fact other than the
person ’ s bad character or criminal disposition. [Citat ion.] The admissibility of such evidence turns largely on the question whether the uncharged acts are sufficiently similar to the charged offenses to support a reasonable inference of the material fact they are offered to prove. ’” ( People v. Burnett (200 3) 110 Cal.App.4th 868, 880

- 881 .)

Evidence of a defendant’s uncharged misconduct, if relevant under
section 1101(b), is subject to Evidence Code section 352. ( People v. Ewoldt (1994) 7 Cal.4th 380, 404.) Evidence Code section 352 gives the trial court discretion to exclude evidence if its probative value “ is substantially outweighed by the probability that its
admission will .

. . necessitate undue consumption of time or .

. . create substantial danger of undue prejudice, of confu sing the issues, or of misleading the jury. ” T o be admissible, evidence of a defendant’s uncharged misconduct “must have substantial probative value that is not greatly outweighed by the potential that undue prejudice will result from admitting the eviden ce.” ( People v. Lenart (2004) 32 Cal.4th 1107, 1123.)17

D. No Error in Allowing Evidence of the 2009 DUI

The trial court allowed the evidence of the 2005 road rage incident and the 2009 DUI under the theory the evidence was relevant to show that Farley kn ew driving a motor vehicle without caution or while under the influence of alcohol was dangerous to human life. The evidence of the 2009 DUI was relevant and admissible for that purpose
under section 1101(b).

Farley’s conduct leading to his arrest and c onviction for DUI in 2009 was relevant to demonstrating that he knew or should have known that taking the wheel of a car while intoxicated can lead to extremely reckless driving and dangerous behavior , with serious personal consequences . The jury was enti tled to infer that Farley’s conduct leading to the 2009 DUI imparted to Farley a knowledge and understanding of the personal and social consequences of drunk driving. Evidence of the 2009 DUI has substantial probative value that was not “greatly outweighe d” by the potential for undue prejudice. ( People v. Lenart , supra , 32 Cal.4th at p. 1123.)
E. Any Error in Allowing Evidence of the 2005 Road Rage Incident Was Harmless

.

In concluding that evidence of the 2005 road rage incident was admissible,
the trial court relied on Ortiz , supra , 109 Cal.App.4th 104, in which the Court of Appeal addressed whether evidence of prior uncharged acts of reckless driving, including driving while under the influence, was admissible to prove implied malice in a situation in which
the defendant was not driv ing under the influence when he committed the charged
offense. The court in Ortiz concluded: “ A jury is entitled to infer that regardless of the mental state or condition that accompanies an instance of reckless drivin g

— wh ether intoxication, rage, or wil ful irresponsibility

— the driver ’ s subsequent apprehension and prosecution for that conduct must impart a knowledge and understanding of the personal and social consequences of such behavior. ” ( Ortiz , supra , at p. 115.)

Farley argues Ortiz does not support admission of the prior uncharged misconduct evidence because the murder charge against him were based on implied18

malice arising from driving under the influence, not from reckless driving , and the charged incident was not the culmination of a course of re ckless driving. Th us, he argues, it could not be infer red that, because he engaged in unintoxicated reckless driving in 2005, he was aware that his nonreckless, intoxicated driving in 2011 was dangerous to
human life. Farley argues that e vidence of prio r acts of reckless driving was highly prejudicial because “[t]here is no evidence that [his] driving prior to reaching the intersection of Culver and Irvine was in any way dangerous.” Farley’s primary defense was that he turned left on a green turn arrow, while M.G. sped through a red light. He presented an expert traffic accident investigator and reconstructionist who testified, based on his investigations and calculations, that Farley probably entered the intersection at the end of a green left turn arr ow or on a yellow left turn arrow and that Farley had the right

- of

- way. Evidence that Farley drove recklessly on a prior occasion could lead the jury to discount his primary defense , disbelieve his expert, and conclude he drove recklessly through a red tu rn arrow into M.G. ’s car.

We conclude any error in allowing evidence of the 2005 road rage incident was harmless, and the jury instructions cured any prejudice. The jury was instructed that “[t]he People presented evidence that the defendant committed other acts that were not charged in this case” and that the jury could consider such evidence only for the limited purpose of deciding whether “[t]he defendant knew that driving a motor veh icle without caution and/or while under the influence of alcohol was dangerous to human life.” The jury also was instructed: “Do not consider this evidence for any other purpose [

. ]

. . . [¶] [ Do not conclude from this evidence that the defendant has a b ad character or is disposed
to commit crime. ] ” We presume the jury is intelligent and understood and followed the jury instructions. ( People v. Gonzale s (2011) 51 Cal. 4 th 894, 940.) W e therefore presume the jury in this case considered the evidence of t he 2005 road rage incident only for the purpose permitted by the instruction s

.19 III. The Trial Court Did Not Err by Allowing Testimony About Statements Made at a MADD Victim Impact Panel. Farley argues the trial court erred by allowing the prosecutor to elicit from
Graham testimony describing the presentations given by three speakers at the MADD victim impact panel attended by Farley on July 2, 2009. He contends her testimony was irrelevant and more prejudicial than probative.
A. Graha m’s Testimony

Graham, a prosecution witness, testified she is a victim advocate for MADD and works with MADD victim impact panels. She identified her name on a sign

- in sheet for speakers, staff, and volunteers, and recognized Farley’s name on an
attendanc e sheet, for a MADD victim impact panel held on July 2, 2009. At this point, a sidebar was conducted during which the prosecutor expressed his intention to ask Graham whether she was familiar with the accounts given by the three speakers at the victim imp act panel, and, if she answered yes, his intention to ask her about the content of those accounts. Farley’s counsel posed a hearsay objection. T he trial court stated the testimony would not be hearsay because it was not going to be offered for the truth of the
matter asserted but to determine whether Farley had “ a subjective actual awareness of the risks of driving while under the influence.”

The reafter, Graham testified, in summary fashion, about what each of the three speakers said at the MADD victim impact panel on July 2, 2009. The three speakers were Desiree Garcia, Richard Nelson, and Suzanne Short. Graham testified:

“ Desiree Garcia spoke about losing her mother while Desiree was .

. . 20 years old or right in there, and she talked about when the police came and told her and how that affected her. It tore her apart. [¶] She was an only child and her mother and her had been together thei r whole lives and now to be without her and at such a young age having to plan the funeral and somehow figure out how to get on with her life

. . . . ”20 As to Nelson, Graham testified: “[H]e is a sheriff and he talk[ed] about
different scenes that he has come upon, and he really stresses about alternatives to driving yourself home and to finish your plan when you are going out drinking for the evening

. . . k now how you are getting from that place; if it is a taxi. He talk [ed] about you can hire a helicop ter for less than you paid for this D.U.I., that sort of thing, so he is giving kind of the law and to please finish your plan.”

Graham testified that Short, who had since passed away, talked about being made a quadriplegic on her 21st birthday , spending the rest of her life unable to care for
herself , and requiring a live

- in attendant to take care of her. “It was not the life she had planned she actually doesn’t have a voice it is more of a real low whisper and so that’s pretty [meaningful] just by itsel f seeing her there in the [wheel]chair seeing she is not able to speak for herself and everything that h as to be done .

. . .”
B. Preliminary Issues

The Attorney General argues that Farley failed to preserve his challenge to Graham’s testimony , based on r elevance and prejudice , because at trial he made only a hearsay objection. ( People v. Mooc (2001) 26 Cal.4th 1216, 1233, fn. 6.) We conclude
otherwise. The trial court had the opportunity to consider probative value and risk of undue prejudice. When t h e prosecutor described the evidentiary question presented as “basically a[n Evidence Code section] 352 analysis,” the trial court responded, “I understand that.”

Farley argues the trial court erred by ruling on the admissibility of Graham’s testimony with out any information about the testimony’s substance or an offer of proof . Since the prosecutor did not know how Graham would testify, an offer of proof would not have been possible, and it was incumbent upon Farley to make motions to strike testimony that turned out to have been inadmissible. A ssuming the trial court erred by ruling without information about the substance of Graham’s potential testimony, the error was harmless for, as we shall explain, the testimony was admissible21

C. Evidence Code Section 352

“ Under Evidence Code section 352, the probative value of the proffered
evidence must not be substantially outweighed by the probability that its admission would create substantial danger of undue prejudice, of confusing the issues, or of
mislea ding the jury. ” ( People v. Cole (2004) 33 Cal.4th 1158, 1195.) Graham’s testimony on what the speakers said at the MADD victim impact panel was relevant to show that Farley was aware , not only of the life

- threatening risks of drinking and driving,
but al so of its actual consequences. ( People v. David , supra , 230 Cal.App.3d at p. 1115; People v. Murray (1990) 225 Cal.App.3d 734, 745.) Graham’s testimony showed Farley knew of at least two instances in which drunk driving had resulted in death or severe
in jury and he had been advised by a law enforcement officer at the MADD victim impact panel not to drive after an evening of drinking. Graham’s testimony was th erefore highly probative of Farley’s knowledge of the hazards of driving while intoxicated

.

Altho ugh Farley does not dispute such probative value, he argues it was outweighed by the “substantial danger of inflaming the jury’s passions by engendering feelings of sympathy for the victims of the charged offenses and their families.” In support of this a rgument, he relies on People v. Diaz (2014) 227 Cal.App.4th 3 62 , 365

- 366, 368, in which the Court of Appeal reversed a second degree murder conviction on the ground that the trial court erred by permitting the jury to watch two videos the
defendant h ad watched in prior mandatory alcohol education programs. One video was about 29 minutes in length and showed the aftermath of several car crashes in the State of Delaware, including an alcohol

- related crash in which one person was killed and another

was ser iously injured. ( Id. at p. 370.) The other video was about 33 minutes in length and included testimonials from a mother and a father, each of whom had a son who was
killed in an alcohol

- related car crash. ( Id. at pp. 37 5

- 37 6 .) “The videos include

numer ous tearful testimonials from the families of victims of alcohol

- related offenses, statements from a prosecutor and a defense attorney concerning the high rates of22

conviction s for such offenses, and statements from a judge to the effect that punishment
is needed and is effective for alchohol

- related driving offenses.” ( Id. at p. 365.) The Court of Appeal concluded that a llowing the jury to watch the videos was reversible error because they included “a large amount of extremely prejudicial material present ed in a format uniquely likely to elicit precisely the type of prejudice that Evidence Code
section 352 is designed to prevent.” ( Id. at p

. 380.)

Here, in stark contrast, the prosecution did not present video or audio recordings of the MADD victim impact panel, but only elicited Graham’s testimony
about what three panel speakers said. Graham’s testimony was very brief and provided just a synopsis of each speaker’s talk, without the tears and emotions of the videos deemed prejudicial in People v. Diaz

. O ne speaker, Nelson, talked on the uncontroversial topic of making an alternate plan for driving home after a night of drinking. Graham seems to have testified calmly and dispassionately, and the record does not suggest
otherwise. The probative value of G raham’s testimony was not outweighed, much less substantially outweighed, by the probability its admission would create substantial danger of undue prejudice, confusing the issues, or misleading the jury.
IV.
C ounsel W as N ot I neffective by F ailing to O bject and M ove to S trike C ross - examination T estimony of D r. Thomas

. A ny E rror in O verruling O bjections to Her C ross - examination T estimony W as H armless. Farley argues (1) his trial counsel was ineffective for not objecting and moving to strike when Dr. Thomas testified on cross

- examination that he “consciously disregards what is expected of him in the service of his own sometimes distorted rational needs” (the consciously disregards testimony) and (2) the trial court erred by overruling his objection to, and motion to strike, Dr. Thomas’s testimony on cross

- examination that “[t]he judgment that goes along with knowing about not drinking and driving isn’t going to be the same for him as it is for others” (the judgment about drinking and driving23

testimony). We conclude there was no ineffective assistance of counsel as to the consciously disregards testimony, and any error in overruling Farley’s objection or denying his motion to strike the judgment about drinking and driving testimony was
harmless.
A

. Pena l Code Section 29

Penal Code section 29 provides: “ In the guilt phase of a criminal action, any expert testifying about a defendant ’ s mental illness, mental disorder, or mental defect shall not testify as to whether the defendant had or did not have the r equired mental states, which include, but are not limited to, purpose, intent, knowledge, or malice aforethought, for the crimes charged. The question as to whether the defendant had or did not have the required mental states shall be decided by the trier of fact .”

In People v. Coddington (2000) 23 Cal.4th 529, 582

- 583, 1 the California Supreme Court explained the permissible and impermissible uses of expert testimony on mental state in a criminal trial: “ Expert opinion on whether a defendant had the capacity to form a mental state that is an element of a charged offense or actually did form such intent is not admissible at the guilt phase of a trial. [Citation.] [Penal Code s]ections 28
and 29 permit int roduction of evidence of mental illness when relevant to whether a defendant actually formed a mental state that is an element of a charged offense, but do not permit an expert to offer an opinion on whether a defendant had the mental capacity to form a sp ecific mental state or whether the defendant actually harbored such a mental state. An expert’ s opinion that a form of mental illness can lead to impulsive behavior is
relevant to the existence vel non [ ( or not ) ] of the mental states of premeditation and

1 Overruled on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, footnote 13.24

deliberation regardless of whether the expert believed appellant actually harbored those mental states at the time of the killing. ” 2 (F ns. omitted.)

“In other words, the defendant cannot put on an expert to testify that,
because of his mental disorder or condition .

. . , he or she did not have the ability, or capacity, to form or harbor whatever mental state is a required element of the charged offense, such as intent to kill, or malice aforethought, or premeditation, or deliberation.” ( People v. Cortes (2011) 192 Cal.App.4th 87 3 , 908.)
B

. Dr. Thomas’s Cross

- examination

To place the challenged testimony in context, we quote extensively from
the cross

- examination of Dr. Thomas. First, as to the conscious ly disregard s testimony, the following exchange to ok place (the challenged question and answer are in italics):

“Q. [ ( The prosecutor ) ] .

. . [Farley] has average intelligence? “A. [ ( Dr. Thomas ) ] He did. “Q. He is able to learn?
“A. Yes. “Q. So, he is aware of what society expects? “A. He is.

“ Q. T here are times that he consciously disregards that; is that right?
“A. Yes. He consciously disregards what is expected of him in the service of his own sometimes distorted rational needs.

“Q. But that’s also part of egocentric, you do what you want to do even though you know others expect something different, you do what you want to do?

2 The Attorney General argues Penal Code section 29 only prohibits an expert from offering an opinion “on the ultimate question of whether the defendant had or did not have a particular mental state at the time he acted .” That proposition is decidedly wro ng. As explained in People v. Coddington , supra , 23 Cal.4th at pages 582

- 583, section 29 also prohibits an expert from testifying on the issue whether the defendant had the capacity to form a particular mental state.25 “A. That’s part of it. “Q. So, he does have an awareness of what he is supposed to do? “A. He knows, yes.” (Italics added.) Next, as to the judgment about drinking a nd driving testimony, this exchange took place (the challenged question and answer are in italics):

“Q. [ ( The prosecutor ) ]

. . . You are not saying that the psychological, psychiatric conditions that [ Farley ] has would force someone to drink and drive?

“A. No. Those psychological conditions that lead him to drink and drive or behave aggressively are about his understanding of himself. He has chemical dependence. The judgment that goes along with knowing about not drinking and driving isn’t going to b e the same for him as it is for others. He is chemically dependent.

“[Defense counsel] : I am going to object to that last answer in its entirety and move it be stricken.” (Italics added.)

A sidebar conference was held, after which the trial court overru led the objection with the proviso: “I think that [defense counsel] took pains not to ask the witness certain questions that might open the door or lead to an opinion as to whether or not he was capable of forming malice aforethought. You have intentiona lly phrased some of your questions such as conscious disregard in a manner which seems to be consistent with the instructions. I am suggesting to you that you be very careful here. You want to simply ask the witness, now, you are not forming an opinion. You are not here to state whether he has the capacity to form the intent or he did have malice aforethought that night, that’s one thing, but asking .

. . questions which would negate the
intent seems to

— or negate any potential defense might open the door for the other side ,

s tay away from it.”
C

. No Ineffective Assistance of Counsel as to the C onsciously D isregards Testimony

Farley contends his trial counsel was ineffective by failing to object when the prosecutor asked Dr. Thomas, “[t] here are times that he consciously disregards that; is26

that right? ” and by failing to move to strike her answer. To prevail on a claim of ineffective assistance of counsel, the defendant must prove (1) his or her attorney ’ s representation was deficient in that it fell below an objective standard of reasonableness under prevailing professional standards; and (2) his or her attorney ’ s deficient representation subjected him or her to prejudice. ( S trickland v . Washington (1984) 466 U.S. 668, 687; People v. Cain (1995) 10 C al.4th 1, 28.) Neither prong is met here.

Under Penal Code section 29, it would have been improper for the prosecutor to ask Dr. Thomas whether Farley had the capacity to form the mental state of conscious disregard for life because it is the mental state necessary for implied malice
murder

. ( People v. Taylor , supra , 32 Cal.4th at p. 867

. ) But the prosecutor did not ask that question; rather, the prosecutor asked whether there were times when Farley consciously disregards “what society expects.” During the sidebar conference, the trial court noted the prosecutor’s questions about conscious disregard seemed intentionally phrased to be consistent with jury instructions. Though not warn ing the prosecutor his question was improper, the court advised him to be “very careful here.”

Farley relies on People v. Rangel (1992) 11 Cal.App.4th 291, 298) , in which the Court of Appeal concluded the trial court properly excluded a psychiatrist’s expert testimony that “‘in that state of intoxication, the person is not able to think rationally and deliberate, which means weigh consequences, think about things in logical sequences.’” People v. Rangel was a first degree murder case in which premeditation and deliberation was the necessary mental state. ( Id. a t p. 294.) The defense expert testified squarely on the ultimate facts that the defendant did not deliberate, premeditate, or harbor the requisite specific intent to kill. ( Id. at pp. 298, 300.)

Here, the prosecutor did not ask Dr. Thomas, and she did not testify, about whether Farley had the capacity to form the requisite mental state of conscious disregard
for human life. Farley’s trial counsel did not perform deficiently because any objection likely would have been overruled and any motion to strike denied by t he trial court.27

( People v. Anderson (2001) 25 Cal.4th 543, 587; People v. Cudjo (1993) 6 Cal.4th 585, 616; People v. Price (1991) 1 Cal.4th 324, 387 .)

If deficient, counsel ’s performance did not result in prejudice. Prejudice means a “reasonable probabil ity that, but for counsel ’ s unprofessional errors, the result of the proceeding would have been different.” ( Strickland v. Washington , supra , 466 U.S. at p. 694.) A reasonable probability means a “probability sufficient to undermine
confidence in the out come.” ( Ibid. ) Dr. Thomas’s answer to the prosecutor’s question was, “[Farley] consciously disregards what is expected of him in the service of his own
sometimes distorted rational needs. ” The jury most likely understood that response to be
directed to Farley’s rebellious personality, which, as Dr. Thomas had already explained, he expressed in his extreme manner of dress and appearance, which made his parents angry and gave him a sense of control over his life. The jury likely did not understand
Dr. Tho mas’s testimony to mean that Farley acted with conscious disregard for human life , particularly considering the jury had not yet been instructed on the elements of implied malice murder. It was therefore not reasonably probable the outcome of trial
would have been different if Farley’s trial counsel had objected to the prosecutor’s question or moved to strike Dr. Thomas’s answer.
D

. Harmless Error, If Any, as to the Judgment About Drinking and Driving Testimony

Farley contends the trial court erred by ove rruling his objection to the prosecutor’s question about whether “the psychological, psychiatric conditions” that Farley suffers “would force someone to drink and drive.” We review the trial court’s
decision to admit or exclude mental state evidence under the abuse of discretion standard. ( People v. Cortes , supra , 192 Cal.App.4th at p. 908.) The trial court did not err by overruling Farley’s objection because the prosecutor did not ask Dr. Thomas about Farley’s capacity to form the mental state of conscious disregard for human life.

If the trial court erred, the error was not prejudicial under the standard of People v. Watson (1956) 46 Cal.2d 818, 836. (See People v. Cortes , supra , 19228

Ca l.App.4th at p. 912 [ People v. Watson standard applies to admission of mental state evidence].) Dr. Thomas’s answer, though arguably subject to a motion to strike, helped Farley more than it hurt him. Dr. Thomas testified that “j udgment that goes along w ith knowing about not drinking and driving isn’t going to be the same for him as it is for others. He is chemically dependent .” In other words, Dr. Thomas testified that Farley’s psychological conditions and chemical dependency meant he did not have the same ability as others to make judgments about whether to drink and drive.

The jury most likely understood Dr. Thomas’s testimony to mean that Farley lacked or had impaired ability to form the mental state of conscious disregard of
life necessary for imp lied malice murder

. The trial court understood this perfectly. It warned the prosecutor to “stay away from” questions that would “negate the intent” or “negate any potential defense” because doing so “might open the door” for Farley.
V.
Trial Counsel Wa s Not Ineffective by Conceding the Knowledge Element of Implied Malice. During closing argument, Farley’s trial counsel conceded that while Farley knew drunk driving was dangerous to life and argued he did not act with conscious disregard of life because h e thought he was able to drive to the Del Taco restaurant

. Farley contends his trial counsel was ineffective for making th is “untenable” argument

. A. Background

The trial court instructed the jury on the elements of implied malice as follows: “The defendant acted with implied malice if: [¶] 1.

. . . He i ntentionally committed an act; [¶] 2. The natural and probable consequences of the act were dangerous to human life; [¶] 3. At the time

. . . he acted,

. . . he knew

. . . his act was dangerous to human life; [¶] AND [¶] 4.

. . . He deliberately acted with conscious disregard for

. . . human

. . . life.”29 In closing argument, Farley’s trial counsel conceded elements 1, 2, and 3. Counsel stated: “ Mr. Farley, in his defense, has never one time brought up that he thought that drinking and driving was not dangerous. It has never been contested. In his
statement he admitted that he knew it

. ” Counsel told the jury, “don’t waste your time on” the first three elements of implied malice murder. Counsel instead focused on the fourth element and argued Farley did not act with conscious disregard because he had a good
faith belief he was fit to drive to the Del Taco restaurant . Counsel stated: “ [ Farley ] made a mistake. He thought he had waited long enough to where he could drive.” Later, counsel argued: “ [ I ] t had been a while since [Farley] had a drink. He had cigarettes and was arguing. So we have adrenalin, we have nicotine going in there. We have his OCD symptoms being calmed down. Ther e is a period of time where he doesn’t drive. This goes to implied malice. This goes to is he acting in conscious disregard or did the guy just make a mistake. He just made a mistake. He shouldn’t have been driving,

. . . but he didn’t do this because he is thinking, oh, I am going to go driving this night. He made a mistake thinking he had waited a long enough time.”
B. The Record Discloses a Rational Tactical Reason for Conceding Knowledge

.

“‘“ [W]e accord great deference to counsel ’ s tactical decis ions ” [citation], and we have explained that “ courts should not second

- guess reasonable, if difficult, tactical decisions in the harsh light of hindsight ” [citation]. “ Tactical errors are generally not deemed reversible, and counsel ’ s decisionmaking must be evaluated in the context of
the available facts. ”’” ( People v. Jones (2003) 29 Cal.4th 1229, 1254.) “ Unless a defendant establishes the contrary, we shall presume that ‘ counsel ’ s performance fell within the wide range of professional competence and that counsel ’ s actions and inactions can be explained as a matter of sound trial strategy. ’ [Citation.] ” ( People v.
Ledesma (2006) 39 Cal.4th 641, 746.) We reverse on direct appeal for ineffective assistance of counsel only when “ the record on appeal de monstrates there could be no30

rational tactical purpose for counsel ’ s omissions. ” ( People v. Lucas (1995) 12 Cal.4th 415, 442.)
The record disclose s Farley’s trial counsel had a rational tactical purpose for conceding Farley knew that driving under the inf luence was dangerous to human life. The evidence that Farley knew that driving while under the influence was dangerous to human life was so overwhelming that trial counsel would have lost credibility by arguing
otherwise. ( See People v. Freeman (1994) 8 Cal.4th 450, 498 [ “ Recognizing the importance of maintaining credibility before the jury, we have repeatedly rejected claims that counsel was ineffective in conceding various degrees of guilt .” ].) By conceding an unwinnable point, Farley’s trial counsel c ould gain credibility with the jury in trying to convince it that Farley did not act with conscious disregard of life.

Farley argues that by conceding knowledge, his trial counsel doomed that argument because , “ [ i ] n the circumstances of this case, [Farle y] could not ‘know’ that his act was dangerous to human life and ‘deliberately act’ without also having ‘conscious disregard for human life.’” Both the knowledge element and the conscious disregard element of implied malice are subjective. ( People v. Kno ller , supra , 41 Cal.4th at p. 157; People v. Taylor , supra , 32 Cal.4th at p. 867.) A defendant might know that driving while intoxicated was dangerous to life but also entertain the belief that his or her actions are not in conscious disregard for human life. Here, for example, trial counsel argued that Farley believed in good fa ith, albeit mistakenly, that he was fit to drive to the Del
Taco restaurant

.

In addition, a major, if not the primary, defense argued by Farley’s trial
counsel was that Farley did not cause the collision. He presented an expert traffic accident investigat or and reconstructionist , and his trial counsel presented various calculations to show, and argued extensively , that Farley did not turn left against a red light and had the right

- of

- way upon entering the intersection. Conceding the knowledge
element of i mplied malice fully preserved the defense that Farley had a green turn arrow ,31

made a lawful left turn into the intersection , and therefore did not act with conscious disregard for life. VI.
There Was No Cumulative Error

. We have identified two possible er ror s. The first is allowing evidence of the 2005 road rage incident . We concluded the jury instruction rendered harmless any error. The second is overruling Farley’s objection to the prosecutor’s question whether “the psychological, psychiatric condition s” that Farley suffers “would force someone to drink and drive.” We concluded any error was harmless because Dr. Thomas’s answer helped Farley more than it hurt him. As there was no reasonable probability the jury
would have reached a result more favorab le to Farley absent a combination of the two possible errors, there was no cumulative error. ( People v. Jandres (2014) 226 Cal.App.4th 340, 361.)
VII.

Sentence on the Enhancement to Count 1 Is Vacated. It appears that the trial court ordered that, as to count 1, the enhancement alleged under Penal Code section 12022.7 , subdivision (a) is to be stayed. The abstract of judgment reflects that action. Stay of sentence necessarily implies imposition of sentence, yet, as Farley asserts, the section 12022.7 , s ubdivision (a) enhancement was not alleged as to count 1. The Attorney General agrees. In the disposition, we will direct the trial court to vacate imposition of sentence on the section 12022.7 , subdivision (a)
enhancement as to count 1 and to prepare a n amended abstract of judgment.
VIII. Credits Were Stated Correctly in t he Abstracts of Judgment. Farley asserts the abstract of judgment for counts 2 and 3 is incomplete because it does not reflect any credits. Two abstracts of judgment were prepared and
entered : One was an indeterminate abstract of judgment for count 1, and the other was a32

determinate abstract of judgment for counts 2 and 3. The indeterminate abstract of judgment reflects total credits of 902 days.

Penal Code section 2900.5, subdivis ion (b) provides: “ For the purposes of this section, credit shall be given only where the custody to be credited is attributable to proceedings related to the same conduct for which the defendant has been convicted. Credit shall be given only once for a single period of custody attributable to multiple offenses for which a consecutive sentence is imposed .” Sentence under count 2 was
consecutive to that of count 1; sentence under count 3 was stayed. Thus, credits were correctly stated on the indeterminat e abstract of judgment for count 1.

DISPOSITION
The sentence on the enhancement alleged under Penal Code
section 12022.7 , subdivision (a) as to c ount 1 is vacated. As so modified, and i n all other respects , the judgment is affirmed. The trial court is directed to prepare an amended indeterminate abstract of judgment on count 1 and to transmit a certified copy of the
abstract of the judgment as amended to the Department of Corrections and Rehabilitation.

FYBEL, J.

WE CONCUR:

O’LEARY, P. J.

BEDSWORTH, J.