MOSK, J.
Following trial, a jury found defendant and appellant Israel Chavez (defendant) guilty of leaving the scene of an accident involving death or permanent injury and gross vehicular manslaughter. On appeal, defendant raises two claims of instructional error and challenges the trial court's exclusion of certain evidence. Defendant also contends that the trial court erred in imposing an upper term sentence.
We hold that defendant forfeited his claims of instructional error, the trial court's exclusionary ruling was not an abuse of discretion, and the trial court properly sentenced defendant to the upper term.
In December 2006, the victim, Keith Valdez, was living with his parents in Rowland Heights. He was an assistant manager at the Jack in the Box restaurant located at Imperial Highway and Carmenita Road. On December 9 and 10, 2006, the victim worked the 6:00 p.m. to 3:00 a.m. shift, but he usually stayed at work after 3:00 a.m. to finish up paperwork. He drove to work on December 9, 2006, in his 2003 Toyota Corolla. After he left work on the morning of December 10, 2006, the victim's Corolla was struck by another vehicle from behind while stopped at an intersection. The victim died instantly from severe "rapid acceleration" injuries he sustained as a result of the traffic collision.
On the morning of December 10, 2006, Freddy Salmeron was driving his semi-truck eastbound on Imperial Highway near the intersection with Marquardt Avenue. It had been raining earlier that night and the roads were wet. As he approached the intersection at Marquardt, he noticed that the street lights and the traffic signals were not working. He observed that one of the temporary stop signs at the intersection was knocked down. There was another temporary stop sign at the intersection at which he stopped.
While stopped, Salmeron saw a car in the middle of the intersection blocking his path. The car was facing him in a westerly direction. As he maneuvered around the car, he saw another car with rear end damage on the south sidewalk of Imperial Highway. He looked to determine if anyone needed assistance, and, as he was passing through the intersection, he saw a man standing at the back of the car blocking the intersection.
On December 10, 2006, Irene Mazon was living at 12435 Ramsey Drive on the northeast corner of the intersection of Imperial Highway and Marquardt Avenue. Mazon's residence was separated from Imperial Highway by a fence, and at the front of the property by the driveway, she could look over the fence and observe the intersection. Earlier in the evening on December 9, 2006, Mazon was shopping and she noticed "very heavy" rainfall. By 3:30 a.m. on the 10th, however, it had stopped raining. The electricity in her area was out, including the street lights and traffic lights, but there was still visibility.
At approximately 3:30 a.m., as Mazon was about to relax and listen to her CD player, she heard a collision that "sounded very violent." She went outside to the front of her residence to where she could see the intersection over her fence. Mazon observed one car in the intersection and another car "against the tree in the corner." Both were damaged. She also saw a man pacing back and forth from one car to the other. The man appeared confused, "like he didn't know what to do." He had a cellphone in his hand and, at one point, put the phone to his ear. The man was wearing black slacks and a brown leather jacket. The man went to the car that was against the tree and tried to open the driver's door. Then he walked back to the car that was blocking the intersection.
After Mazon saw the man attempt to open the door on the car against the tree, she went inside her residence to put on some "sweats," retrieve a flashlight, and wake up her husband. When she went back outside a few minutes later, the man she had seen in the intersection was gone. She did not see anyone else in the intersection. She went to the cars to determine if anyone was inside of them. There was no one in the car in the intersection, but in the car by the tree she observed a male who was slumped over to the right or passenger side of the vehicle. She went to her husband and told him there was someone in that car as the police or paramedics arrived. Mazon was interviewed by officers at the scene. During that interview, she observed two females arrive at the scene, neither of whom she had seen before.
On December 10, 2006, Cindy Marquez was living with defendant who was the father of her 11-year-old son and four-month-old daughter. Defendant was the registered owner of a Chrysler 300M that was purchased in 2005. Marquez and defendant both drove that car and a 1993 Camry. Defendant went out to a club with friends at about 9:00 p.m. on the evening of December 9. He drove the Chrysler and left the Camry for Marquez. Marquez then went out with friends and returned home at 1:00 or 2:00 a.m.
At approximately 3:45 a.m., defendant called Marquez on her cellphone.
Marquez ran to a friend's house close to the intersection where the accident occurred. On the way, she saw the scene of the accident, but did not see anyone there. She proceeded to Angela Romero's house which was "a couple [of] blocks" from the accident scene. She knocked on the door and Romero answered. Marquez told her there had been an accident and asked her to drive them back to the scene. Romero complied, and when they arrived, Marquez approached an officer at the scene and told him that she was the driver of the car in the intersection. The officer began questioning Marquez and, at some point, he told her he did not believe her story. Marquez then admitted she was not the driver. Marquez was arrested at the scene and charged with giving false information to a police officer. She later pled guilty to one count of resisting, obstructing, or defying a police officer in violation of section 148, subdivision (a)(1).
On December 10, 2006, at approximately 4:00 a.m., Romero answered a knock on her door and saw it was Marquez. Marquez told Romero that there had been an accident and asked Romero to drive her to the scene. Marquez seemed "kind of nervous, anxious," but she did not appear to be injured. Romero drove them a short distance in her car to the scene of the accident. Before Romero could park, Marquez "jumped out." Romero parked and approached Marquez who was speaking to one of the police officers at the scene. Romero heard Marquez tell the officer that "she did it." Romero was surprised to hear Marquez take responsibility because although the accident looked serious, Marquez appeared unhurt. The officers separated Romero and Marquez. But sometime later Romero heard Marquez recant her admission that she was the driver. Romero also saw the police officer arrest Marquez. At some point that evening, a police officer interviewed Romero and took her statement. Romero then left the scene and picked up Marquez's children as Marquez had requested.
On December 10, 2006, at approximately 3:53 a.m., California Highway Patrol Officer Cainan Petska was on patrol with his partner, Officer Ron Fredericks,
When Officers Petska and Fredericks arrived at the scene, they observed a silver Chrysler 300 facing northwest, blocking the eastbound number one lane of Imperial Highway. The vehicle had "major" front end damage on the passenger side and the driver's door was open with the driver's airbag deployed. The officers also noticed one of the temporary stop sign barricades lying in the intersection near the Chrysler. From the damage to the Chrysler, it appeared that the stop sign in the intersection had originally been placed on the eastbound side of the intersection between the number one and two lanes of Imperial Highway.
In addition to the Chrysler, Officer Petska observed another damaged vehicle on the southwest corner of the intersection. It was a Toyota Corolla that had come to rest against a tree. The majority of damage to the Corolla was to the rear and front on the driver's side.
After Officer Petska had placed flares at the scene, he saw two women, Marquez and Romero, approaching him. Marquez appeared upset and asked if the person in the Corolla was "okay." Officer Petska asked her if she was involved, and she told him she was the driver of the Chrysler. While Officer Petska was speaking with Marquez, Officer Fredericks pulled Office Petska aside and told him that there was a witness, Mazon. Mazon had explained to Officer Fredericks that shortly after she heard the collision, she looked over the fence and there were no females, including Marquez, at the scene. Based on that information, Officer Petska concluded that Marquez "was covering up for someone." He therefore confronted Marquez with the information and she admitted that she had not been involved in the collision. She explained that she had been at home when she received a call from defendant during which he explained that he had been involved in a collision that "had hurt someone" and asked her to come to the scene.
Officer Petska ran the license plate of the Chrysler and confirmed that defendant and his mother were listed as the registered owners. He asked Marquez for a description of defendant, and she described him as a Hispanic male with a shaved head and "alot of tattoos." Officer Petska detained Marquez in the backseat of the patrol car and took her cell phone from her. Office Petska later arrested Marquez for giving a false statement to a police officer and resisting or delaying a police officer in the course of his duties.
At approximately 6:00 a.m. that morning, Officer Petska called defendant using Marquez's cell phone. The man who answered identified himself by defendant's first name. When Officer Petska told him Marquez was being arrested for a collision in which defendant was involved, the man replied that "he did not know what [the officer] was talking about" and hung up the phone. Officer Petska called defendant several times after that hang up, but no one answered those calls.
Office Petska opined that if a person was driving a vehicle on Imperial Highway in the vicinity of Marquardt at a rate of 61 miles per hour, he would violate Vehicle Code section 22350, the basic speed law. According to Office Petska, "even in ideal conditions [that speed would exceed] the prima faci[e] speed limit by 16 miles an hour."
California Highway Patrol Sergeant Don Karol had been a team leader and supervisor of the multi-disciplinary accident investigation team for approximately six years prior to trial. He assisted in the accident reconstruction related to the fatal traffic collision on December 10, 2006, at the intersection of Imperial Highway and Marquardt Avenue. He concluded that the collision occurred at the limit line in the eastbound number 2 lane on the west side of the intersection. He also concluded that the Chrysler rear ended the Corolla with the right front side of the Chrysler hitting the left rear of the Corolla "slightly offset [from center] about three feet . . . ." According to Sergeant Karol, the Chrysler was traveling a minimum of 61 miles per hour when it impacted the rear of the victim's Corolla and was traveling a minimum of 65 miles per hour two seconds prior to the impact. The Chrysler was braking for .6 of a second prior to the moment of impact.
In an amended information, the Los Angeles County District Attorney charged defendant in count 1 with leaving the scene of an accident causing death or permanent serious injury in violation of Vehicle Code section 20001, subdivision (b)(2) and in count 2 with vehicular manslaughter in violation of Penal Code section 192, subdivision (c)(1).
Following trial, the jury found defendant guilty on counts 1 and 2 and found the allegation that defendant fled the scene of the crime true within the meaning of Vehicle Code section 20001, subdivision (c). There is no indication that the jury made any finding on the allegation that defendant had suffered a prior conviction for which a prison sentence had been imposed within the meaning of section 667.5, subdivision (b).
The trial court sentenced defendant to an aggregate term of 11 years comprised of the following terms: on count 2, vehicular manslaughter, an upper term of six years, plus an additional and consecutive term of five years pursuant to the true finding on the Vehicle Code section 20001, subdivision (c) allegation that defendant fled the scene. Pursuant to section 654, the trial court stayed the sentence on count 1, leaving the scene of an accident involving death or permanent serious injury. The trial court awarded defendant 41 days of custody credit comprised of 28 days of actual credit and 13 days of conduct credit.
Defendant raises two claims of instructional error. The first claim is that the jury instruction on gross negligence—CALJIC No. 3.36—failed to inform the jury that the negligent acts must have created a high risk of death or great bodily injury. The second claim is that by giving both CALJIC 8.90 and 8.95, the trial court mistakenly raised a mandatory presumption related to an element of the offense.
Defendant's claims of instructional error are not based on the assertion that the challenged instructions, on their face, incorrectly state the law. Rather, defendant contends that CALJIC No. 3.36 was incomplete or inadequate in its description of gross negligence and that CALJIC Nos. 8.90 and 8.95, when read together, created the potential for juror confusion by suggesting that a violation of the basic speed law, in and of itself, is an act inherently dangerous to life.
Defendant did not raise either of these contentions in the trial court or request clarifying or amplifying instructions. He has therefore forfeited his claims of instructional error on appeal. "`A party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.' (People v. Lang (1989) 49 Cal.3d 991, 1024 [264 Cal.Rptr. 386, 782 P.2d 627].) This principle is demonstrated aptly by People v. Alvarez (1996) 14 Cal.4th 155 [58 Cal.Rptr.2d 385, 926 P.2d 365], a homicide case in which the defendant contended the trial court should have clarified its instruction defining murder, by referring to and explaining proximate cause. We concluded: `Had [defendant] desired such an amplification, he should have requested it of the superior court. He made no request of this sort. . . . Because defendant did not request amplification of the otherwise adequate instructions below, he may not complain here. [Citation.]' (Id. at p. 222, fn. omitted.)" (People v. Jennings (2010) 50 Cal.4th 616, 671-672.)
During opening statement, defendant's trial counsel told the jury that there was "no evidence that the victim's tail lights were on." The prosecutor objected, and the trial court held a side bar conference during which the following colloquy occurred: "The Court: You are talking here about something that might constitute contributory negligence on the part of the decedent and that is legally irrelevant. You know that. [¶] [Defense Counsel]: What we're talking about, with all due respect, is following up on the photographs that the prosecution used in their opening statement, in which they talked about the lighting conditions and the ambient lighting conditions and the circumstances under which the driver of the vehicle entered the intersection. That is not about contributory negligence. That is a simple response to photographs that the people have told us that already will be used. [¶] One of the issues in this case is whether or not the alleged stop signs were visible or not. [¶] The Court: The fact that you are referring to tail lights is an attempt to indicate that there is negligence on the part of or there may have been negligence on the part of the decedent. [¶] [Defense Counsel]: Well, it wasn't, but if the court is now ruling that we can't comment and we can't make any reference to—we can't ask questions about the condition, whether or not the vehicle in question had lights on? I would ask the court for an opportunity to run a writ, because we are now — [¶] The Court: No. You can appeal it after the fact. You cannot run a writ. [¶] I'm going to sustain the objection and I'm going to admonish the jury that it is legally irrelevant as to whether or not the decedent's lights were on, whether or not the decedent's brakes were on. You cannot consider anything done by the decedent and the only thing they have to decide is whether or not other conduct of your client was a significant — [¶] [Prosecutor]: Substantial Factor. [¶] The Court: Substantial Factor. [¶] [Defense Counsel]: So you're going to tell the jury that you can't consider if the lights were off on the defendant's car? [¶] [Prosecutor]: Or the victim's car, the victim's car. [¶] [Defense Counsel]: Fair enough. [¶] The Court: I'm going to say you cannot consider the conduct of the decedent or the condition of the decedent's car. The only thing you can consider in deciding this case is whether or not the conduct of the defendant was was a substantial factor in causing the death of the decedent as a matter of law. [¶] [Defense Counsel]: So as a matter of law they can't consider whether or not the vehicle could be seen. And the court is making that statement with the — [¶] The Court: I'm not saying whether or not it could be seen. I'm saying the condition of the car. [¶] [Defense Counsel]: I'm not talking about the condition. [¶] The Court: I don't know whether it would be seen. It could be pitch dark and it could still be seen. I'm not going to argue with you, counsel. That's the ruling. Let's go."
The trial court then admonished the jury as follows: "Ladies and gentlemen, the court is sustaining the objection to any reference to the tail lights of the decedent's car. [¶] I'm advising you at this time that as a matter of law the condition of the decedent's car or the conduct of the decedent or any evidence that might pertain thereto is irrelevant. [¶] The only question that you have to decide is whether or not conduct attributable to the defendant was a substantial factor in causing the death of the decedent. [¶] That's what you have to decide; was the defendant's conduct a substantial factor in causing the death of the decedent."
Defendant contends that the trial court abused its discretion by excluding any reference to the condition of the victim's vehicle and, specifically, any reference to whether the victim's tail lights were on at the time of the accident. According to defendant, evidence of whether the victim's tail lights were working was relevant to the issue of whether defendant acted with the requisite gross negligence.
Defendant's argument assumes that defendant argued that the tail light evidence was relevant to the issue of gross negligence and that he had some admissible evidence to support a reasonable inference that the tail lights of the victim's Corolla were not illuminated at the time of the accident. But the record does not support those assumptions. Defendant's counsel never explicitly argued that the tail light evidence was relevant to gross negligence. He argued that it was relevant to the conditions at the scene at the time of the accident and whether the temporary stop signs were visible, without specifying the legal significance of such evidence. Moreover, defendant's trial counsel never represented that he had admissible evidence showing that the victim's tail lights were out nor did he make an offer of proof to that effect. He just represented that there was no evidence that the tail lights were on. As no one saw the accident except defendant, and defendant did not testify, there would be no way to determine if the tail lights were on or off. Also, there was no evidence that the victim's vehicle had been examined to determine if the tail lights were working or not. Thus, the preliminary facts necessary to make the tail light issue arguably relevant to the conditions at the scene were not before the trial court.
"`Of course, only relevant evidence is admissible. (Evid. Code, § 350.) Sometimes the relevance of evidence depends on the existence of a preliminary fact. [Citations.] The court should exclude the proffered evidence only if the "showing of preliminary facts is too weak to support a favorable determination by the jury." [Citations.] The decision whether the foundational evidence is sufficiently substantial is a matter within the court's discretion.' (People v. Lucas (1995) 12 Cal.4th 415, 466 [48 Cal.Rptr.2d 525, 907 P.2d 373] (Lucas); see also Evid. Code, § 403, subd. (a)(1) [when the relevance of proffered evidence depends upon the existence of a preliminary fact, the proponent of the evidence has the burden of producing sufficient evidence of that fact].)" (People v. Rundle (2008) 43 Cal.4th 76, 129, overruled on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
Here, even assuming that the tail light evidence was relevant to some issue, such as the conditions at the scene at the time of the accident, defendant did not offer any proof of a preliminary fact that would tend in reason to show that the victim's tail lights were out. Absent an offer of proof concerning such evidence, defendant cannot demonstrate that he was prejudiced by the trial court's order excluding any reference to the condition of the victim's tail lights. "A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous exclusion of evidence unless the court which passes upon the effect of the error or errors is of the opinion that the error or errors complained of resulted in a miscarriage of justice and it appears of record that: [¶] (a) The substance, purpose, and relevance of the excluded evidence was made known to the court by the questions asked, an offer of proof, or by any other means; [¶] (b) The rulings of the court made compliance with subdivision (a) futile; or [¶] (c) The evidence was sought by questions asked during cross-examination or recross-examination." (Evid. Code, § 354.) Although defendant's trial counsel may have made the purported relevance of the tail light issue known to the trial court, he did not make known the substance of any evidence that would have shown that the victim's tail lights were not illuminated at the time of the accident. As a result, under Evidence Code section 354, the order excluding evidence cannot be the basis for reversing the judgment.
The prosecutor's sentencing report listed factors in aggravation, including that "defendant was on parole at the time he committed the crimes which are the subject of this case." The report also listed that "defendant ha[d] been convicted for possessing [a] controlled substance while armed . . ." and that "defendant ha[d] already served a three-year prison term as a result of [the] convictions sustained in case YA049445."
The probation officer's report submitted to the trial court prior to sentencing stated that on August 12, 2001, defendant was arrested in case number YA049445 for "controlled substance possession [with a] loaded [fire-arm]" and that approximately 13 months later on September 11, 2002, he was sentenced to three years in prison based on the conviction on that charge.
The probation report also stated that on September 1, 2001, less than a month after he was arrested in case number YA049445, defendant was arrested for driving under the influence and on September 28, 2001, defendant was arrested for assault with a deadly weapon.
At the sentencing hearing, the following exchange took place between the trial court and counsel: "The Court: [T]he court can consider prior convictions and he did have a previous felony conviction, served a prior prison term, and he was currently on probation or parole. These are not matters that need to be adjudicated by the jury. [¶] They are factors in aggravation. I can find none in mitigation. [¶] There is—the court does conclude that the high term is the appropriate period of confinement for the reasons stated. [¶] [Defense Counsel]: Your Honor, for the record the defense contends that [defendant] was not on probation or parole. [¶] The Court: He was not [on] probation or parole? [¶] [Prosecutor]: I don't believe that's accurate. I'd have to check the timing on it, but I believe he was still on parole from the prison term at the time this crime was committed in December of '06. And I believe his release from the three year term that he had been sentenced to on his 11370.1 conviction was almost immediately previous to that, your Honor. [¶] The Court: All right. All right. The court will make count 2 the base term. The high term is six years."
Defendant contends that by basing its upper term sentencing decision on the assumption that defendant was on parole, the trial court considered an improper factor in aggravation. According to defendant, there was insufficient evidence in the record to support a reasonable conclusion that defendant was on parole at the time the December 10, 2006, crimes were committed. We disagree.
Section 1170, subdivision (b) provides in pertinent part: "When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court. . . . In determining the appropriate term, the court may consider the record in the case, the probation officer's report, other reports including reports received pursuant to Section 1203.03 and statements in aggravation or mitigation submitted by the prosecution, the defendant, or the victim, or the family of the victim if the victim is deceased, and any further evidence introduced at the sentencing hearing. The court shall select the term which, in the court's discretion, best serves the interests of justice. . . ." (Italics added.)
The probation officer's report was before the trial court, and it reflected that defendant was sentenced in case number YA049445 to a three-year prison term on September 11, 2002. It also showed that shortly after defendant's arrest in that case on August 12, 2001, defendant was arrested twice—on September 1 and September 28, 2001—for driving under the influence and assault with a deadly weapon, respectively. That evidence supported a reasonable inference that defendant was free on bail following his arrest in case number YA049445 by at least September 1, 2001.
Because there appears to be an issue concerning whether the trial court awarded defendant the correct amount of presentence conduct credit, we asked the parties to brief the issue. Both parties agree that defendant is entitled to additional conduct credit.
"`Conduct credit' collectively refers to worktime credit pursuant to section 4019, subdivision (b), and to good behavior credit pursuant to section 4019, subdivision (c). (See People v. Cooper (2002) 27 Cal.4th 38, 40 [115 Cal.Rptr.2d 219, 37 P.3d 403].)" (People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.) At the time defendant was sentenced, the trial court was required to calculate his conduct credits by dividing the number of days of actual presentence custody by four and then multiplying the quotient by two. "Under Penal Code section 4019, a defendant receives two days of conduct credit for each four-day block of time served. `The proper method of calculating presentence custody credits is to divide by four the number of actual presentence days in custody, discounting any remainder. That whole-number quotient is then multiplied by two to arrive at the number of good/work credits. Those credits are then added to the number of actual presentence days spent in custody, to arrive at the total number of presentence custody credits. [Citations.]' (People v. Culp (2002) 100 Cal.App.4th 1278, 1283 [122 Cal.Rptr.2d 924].)" (People v. Kimbell (2008) 168 Cal.App.4th 904, 908-909.)
The trial court awarded defendant 28 days of actual custody credit. Therefore, under the foregoing formula, he was entitled to 14 days of conduct credit. Because the trial court awarded only 13 days of conduct credit, defendant is entitled to an additional day of conduct credit.
The judgment of conviction is affirmed and on remand the trial court is instructed to amend the abstract of judgment to reflect an award of 42 days of presentence custody credit comprised of 28 days actual custody credit and 14 days of conduct credit.
We concur.
TURNER, P. J.
ARMSTRONG, J.
