Filed 7/27/15 P. v. Corona CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSE R. CORONA,

Defendant and Appellant.

 B255323

 (Los Angeles County 

 Super. Ct. No. TA126545)

APPEAL from the judgment of the Superior Court of Los Angeles County. 

Laura R. Walton, Judge. Affirmed. 

Thomas T. Ono, under appointment by the Court of Appeal, for Defendant and

Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and Carl N. 

Henry, Deputy Attorneys General, for Plaintiff and Respondent.

* * * * * * * * * *
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While driving on a suspended license and with a blood alcohol content almost 

twice the legal limit, defendant and appellant Jose R. Corona collided with a motorcyclist 

near the center median of the 105 Freeway. The motorcyclist died. Immediately after the 

accident, defendant reversed back into traffic and left the scene, sometimes driving at 

high rates of speed, while weaving back and forth across multiple lanes of traffic. About 

five miles from the scene of the accident, defendant stopped his car on the center 

shoulder of the freeway, partially blocking the carpool lane. When law enforcement 

arrived, defendant was slumped over the steering wheel. During field sobriety tests, 

defendant said several times that he was “f--ked up.” 

Defendant appeals from the jury verdict finding him guilty of second degree 

murder, gross vehicular manslaughter while intoxicated, leaving the scene of an accident 

and driving on a suspended license. He claims there was insufficient evidence of

causation on all counts, except driving on a suspended license, and insufficient evidence 

of implied malice to support second degree murder.

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On January 9, 2013, at approximately 10:30 p.m., Kimelle Richard was driving 

westbound in the number one lane of the 105 Freeway at about 70 miles per hour. 

A motorcyclist passed in the carpool lane to her left. At about the same time, the car 

directly in front of her braked suddenly. Ms. Richard saw a white van ahead of that car 

veer slightly to the right, and then swerve “sharp[ly]” to the left into the carpool lane and 

the center divider, at which point the motorcyclist in the carpool lane ran into the side of 

the van. From Ms. Richard’s vantage point, it did not appear the motorcyclist had any 

way to avoid colliding with the van. 

Ms. Richard was able to veer to the right away from the collision, and pulled over 

onto the right shoulder. She saw the van reverse into the number one lane and drive off 

quickly. Ms. Richard got off the freeway and called 911. 

Brandon Patin was also on the freeway that evening, having just finished his shift 

as a Los Angeles County deputy sheriff. Deputy Patin was in his personal car and was 
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driving in the number two lane. Traffic was fairly light. He noticed a white van 

approaching on his left side in the number one lane. As the van started to pass him, the 

driver appeared to lose control and “fishtail.” The van veered into his lane and then 

abruptly swerved left into the carpool lane and center divider. As it did so, the van

collided with a motorcycle driving in the carpool lane. 

After the collision, Deputy Patin slowed down and stopped. Looking in his 

driver’s side mirror, he saw the van back away from the center divider, pull back onto the 

freeway and drive off. Deputy Patin followed the van as he dialed 911. The van made an 

“abrupt move across all lanes of traffic.” Deputy Patin thought the driver might be trying 

to get off the freeway. However, instead of exiting, the van drove along the right 

shoulder, appearing to scrape the bumper or tires along the wall, then pulled back into 

traffic and sped up to 80 miles per hour. The van weaved in and out of traffic before 

veering back onto the center shoulder where it stopped, with the back end partially 

blocking the carpool lane. 

Deputy Patin waited in his car behind the van for law enforcement to arrive. After 

a few minutes, Abel Baca, an officer with the California Highway Patrol (CHP), arrived,

as did several deputies from the Los Angeles County Sheriff’s Department. The officers 

walked up to the van and found defendant slumped over the steering wheel. Defendant 

did not respond to multiple knocks on the window. He eventually woke up and put his

hands on the steering wheel, and “began moving the steering wheel as if he was driving.” 

Defendant did not respond to instructions to open the door and Officer Baca saw that the 

car’s transmission was not in park. Officer Baca therefore broke the front passenger 

window to gain access to the van. He then put the car in park, and removed defendant 

from the van. 

Shortly thereafter, Jason Walker, another CHP officer, arrived. He had already

been to the scene of the collision and was advised that the motorcyclist had been taken 

away by paramedics. Officer Walker spoke with Deputy Patin and Officer Baca about 

what they had observed, and then turned to defendant who had been placed in the back of 

one of the patrol cars. 
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Officer Walker immediately noticed that defendant’s eyes were “red and watery,” 

his speech was “very slurred” and he smelled of alcohol. Defendant also had minor 

abrasions on his face and hands. Officer Walker had defendant get out of the patrol car 

and perform five field sobriety tests. Defendant’s performance of each of the four 

physical tests showed impairment. Several times during the tests, when he lost his 

balance or could not complete a test, defendant said “I know, I’m f--ked up.” Defendant 

said he was sorry, he “didn’t mean to,” and that he would pay what he could but he was 

just tired and wanted to go home. The fifth test, a preliminary alcohol screening test, 

sampled defendant’s breath and registered a blood alcohol content of 0.15. A second test 

taken a couple of minutes later registered 0.14. When asked if he had had anything to 

drink, defendant said he had two 12-ounce cans of beer, and he had eaten. Defendant 

told Officer Walker he thought he may have hit a bumper in the road or something

similar, and made reference to the fact he thought it was New Year’s Eve. (It was 

January 9.) 

Defendant was placed under arrest. At the CHP station, defendant was given a 

further alcohol screening test and those results showed defendant’s blood alcohol content 

at 12:24 a.m. to be 0.15. At this same time, Officer Walker was told by his dispatcher 

that the motorcyclist had passed away from his injuries. 

Defendant was charged by information with second degree murder (Pen. Code, 

§ 187, subd. (a); count 1), gross vehicular manslaughter while intoxicated (Pen. Code, 

§ 191.5, subd. (a); count 2), leaving the scene of an accident (Veh. Code, § 20001, 

subd. (a); count 3), and driving on a suspended license (Veh. Code, § 14601.5, subd. (a); 

count 4). It was also specially alleged as to count 2 that defendant fled the scene of the 

accident within the meaning of Vehicle Code section 20001, subdivision (c), and had 

suffered two prior convictions for driving under the influence within the meaning of 

Penal Code section 191.5, subdivision (d). 

Defendant pled not guilty and denied the special allegations. 
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The case proceeded to a jury trial in February 2014. The prosecution presented 

the above facts. During Officer Walker’s testimony, a video from the patrol car’s 

dashboard camera of Officer Walker’s interview with defendant was played for the jury. 

The prosecution also called Deputy District Attorney David Gammill. 

Mr. Gammill was the prosecutor who obtained a conviction against defendant in 

July 2010 for driving under the influence. Mr. Gammill explained that defendant entered 

into a plea agreement in that case and, as part of the plea, was instructed by the court with 

a Watson admonition,1including the following language: “You should understand that 

being under the influence of alcohol or drugs or both impairs your ability to safely 

operate a motor vehicle. Therefore, it is extremely dangerous to human life to drive 

while under the influence of alcohol or drugs or both. [¶] If you continue to drive while 

under the influence of alcohol or drugs or both and as a result of that – of your driving 

someone is killed, you could be charged with murder.” Mr. Gammill also testified 

defendant’s driver’s license was suspended as a result of that prior conviction, and that he 

was still on probation from that conviction when this incident occurred. 

Glen Whelan, Director of Quality Assurance for Safety Consultant Services 

testified. His company offers various programs, including an 18-month course for 

individuals who incur a second offense for driving under the influence. The course is 

referred to as an “SB38” program. Defendant first enrolled in an SB38 program in 

November 2010, but thereafter was terminated multiple times for failing to attend. 

Defendant returned multiple times to re-start the program, but was terminated each time 

for lack of attendance. Each time he re-enrolled, defendant was allowed to pick up with 

classes where he left off, but he only completed about 15 months of the program. During 

that time period, defendant signed at least eight different forms acknowledging the 

Watson admonition about drinking and driving, and part of the program material he 

completed included instruction on the dangers of driving while intoxicated. 

 

1 People v. Watson (1981) 30 Cal.3d 290 (Watson).
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Daphne Teamer of the Department of Motor Vehicles testified that at the time of 

the incident defendant’s driver license was suspended due to a prior incident of driving 

under the influence. Evidence was also presented regarding defendant’s two prior 

convictions for drunk driving in July 2003 (case No. O3NM09491) and in July 2010 

(case No. OEA06336). Testimony was presented on the effects of alcohol consumption 

on driving ability, including impairment of judgment and slowed response times. 

Defendant called James Bertoch, an expert in accident reconstruction, to testify to

the mechanics of the accident. Mr. Bertoch opined that the “accident happened because 

the van [came] skidding across the [carpool] lane and the motorcyclist had nowhere to go 

and ended up hitting the side of the van.” Mr. Bertoch also attested that given the 

relatively large size of the van, with no back side windows, the relatively small size of the 

motorcycle, and the fact the van almost immediately hit the center median at the same

time the motorcycle hit the side of the van, it was possible that the driver of the van did 

not realize he had collided with the motorcyclist. 

Defendant called several other witnesses, including his sister to testify to his good 

character, but we have summarized only the facts and testimony material to the two 

substantial evidence questions presented. Defendant did not testify.

The jury found defendant guilty on all four counts and found the special 

allegations true. Defendant waived his right to trial on the prior conviction allegations,

and admitted them to be true. The court sentenced defendant to a state prison term of 

20 years to life. 

This appeal followed. 

DISCUSSION

“In assessing a claim of insufficiency of evidence, the reviewing court’s task is to 

review the whole record in the light most favorable to the judgment to determine whether 

it discloses substantial evidence—that is, evidence that is reasonable, credible, and of 

solid value—such that a reasonable trier of fact could find the defendant guilty beyond a 

reasonable doubt.” (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) “The standard of 

review is the same in cases in which the prosecution relies mainly on circumstantial 
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evidence.” (Ibid.) “Reversal on this ground is unwarranted unless it appears ‘that upon 

no hypothesis whatever is there sufficient substantial evidence to support [the 

conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 331; accord, People v. 

Manriquez (2005) 37 Cal.4th 547, 577.) 

1. Causation 

Defendant contends there is no substantial evidence of causation supporting the 

verdicts on count 1 (second degree murder), count 2 (gross vehicular manslaughter), and 

count 3 (leaving the scene). We disagree. 

The Supreme Court has explained “there is no bright line demarcating a legally 

sufficient proximate cause from one that is too remote. Ordinarily the question will be 

for the jury.” (People v. Cervantes (2001) 26 Cal.4th 860, 871.) “In general, 

‘[p]roximate cause is clearly established where the act is directly connected with the 

resulting injury, with no intervening force operating.’ [Citation.]” (Id. at p. 866.) There 

may be more than one proximate cause. “ ‘ “A cause is concurrent if it was operative at 

the time of the death and acted with another cause to produce the death.” ’ [Citation.]” 

(People v. Sanchez (2001) 26 Cal.4th 834, 847.) “In criminal prosecutions, the 

contributing negligence of the victim or a third party does not relieve the criminal actor 

of liability, unless the victim’s or third party’s conduct was the sole or superseding cause

of the death.” (People v. Autry (1995) 37 Cal.App.4th 351, 360.)

The gist of defendant’s argument is that there was no evidence he caused the 

accident. Rather, the evidence demonstrated that the motorcyclist had been speeding and 

was unable to avoid colliding with defendant’s van because of his excessive speed, while 

Ms. Richard had been able to avoid the collision. The argument lacks merit. 

There was no evidence the motorcyclist was driving at an excessive speed. There 

was only evidence from Ms. Richard that she was driving about 70 miles per hour and 

that the motorcyclist was proceeding straight in the carpool lane next to her and was just 

starting to pass her when the collision occurred. Even Mr. Bertoch, the expert relied 

upon by defendant, testified that the accident occurred because defendant veered into the 

carpool lane in front of the motorcyclist, leaving the motorcyclist with no way to avoid 
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hitting the side of the van. The evidence was uncontroverted that defendant was the one 

driving erratically and the proximate cause of the collision. Even if we assume, solely for 

the sake of argument, that the victim was driving over the posted speed limit, such 

conduct, given the totality of evidence presented, would be, at most, a potential 

concurrent cause of the collision. The record contains ample, if not overwhelming, 

evidence upon which the jury reasonably concluded that defendant’s conduct was the 

primary and substantial factor in the collision and the victim’s resulting death. 

2. Implied Malice 

Defendant argues the record contains insufficient evidence of implied malice 

warranting reversal of his conviction for second degree murder. We are not persuaded. 

Murder requires proof of malice, either express or implied. “Malice is implied 

when the killing is proximately caused by ‘ “an act, the natural consequences of which 

are dangerous to life, which act was deliberately performed by a person who knows that 

his conduct endangers the life of another and who acts with conscious disregard for 

life.” ’ [Citation.] In short, implied malice requires a defendant’s awareness of 

engaging in conduct that endangers the life of another—no more, and no less.” (People 

v. Knoller (2007) 41 Cal.4th 139, 143, italics added; accord, People v. Elmore (2014) 59 

Cal.4th 121, 133.) Stated another way, implied malice has “ ‘both a physical and a 

mental component. The physical component is satisfied by the performance of “an act, 

the natural consequences of which are dangerous to life.” [Citation.] The mental 

component is the requirement that the defendant “knows that his conduct endangers the 

life of another and . . . acts with a conscious disregard for life.” [Citation.]’ [Citation.]” 

(People v. Chun (2009) 45 Cal.4th 1172, 1181 (Chun).)

Defendant’s argument hinges on the contention that even the prosecutor told the 

jury he did not believe defendant intended to kill when he got into the van that night. But 

that is wholly irrelevant to whether there is substantial evidence of implied malice. To 

establish implied malice, there need not be any intent to kill. 

There was uncontroverted evidence that defendant performed an act, the natural 

consequence of which was dangerous to human life. (Chun, supra, 45 Cal.4th at 
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p. 1181.) Defendant got into a van after consuming alcohol, and drove recklessly and at 

high rates of speed on the freeway in the presence of other drivers. Defendant’s blood 

alcohol content was almost twice the legal limit. 

There was also substantial evidence defendant was aware such conduct was 

dangerous to human life. (Chun, supra, 45 Cal.4th at p. 1181.) Defendant had two prior 

convictions for drunk driving. Defendant had been instructed with the Watson

admonition in court in July 2010 after the second of those convictions that such conduct 

was dangerous to human life, and that if his driving resulted in a death, he could be 

charged with murder. Defendant participated in the SB38 program which included 

instruction on the dangers of drunk driving, and he signed at least eight separate forms 

containing the Watson admonition, acknowledging his understanding of that fact. 

Defendant provides no cogent argument for how this evidence is insufficient to support 

the jury’s finding on implied malice. 

DISPOSITION

The judgment of conviction is affirmed. 

GRIMES, J.

WE CONCUR:

BIGELOW, P. J. 

FLIER, J.