California Court of Appeals, Fourth District, Second Division
[As Modification on October 8, 2014]
APPEAL from the Superior Court of Riverside County No. RIF148873. Harry (Skip) A. Staley[*] (retired judge of the Kern Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.), Robert E. Law (retired judge of the former Orange Mun. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.), and Roger A. Luebs, Judges.
[Copyrighted Material Omitted]
Christine Vento, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Lilia E. Garcia and Quisteen S. Shum, Deputy Attorneys General, for Plaintiff and Respondent.
HOLLENHORST Acting P. J.
Defendant Larry Jason Batchelor appeals from his conviction-in two separate trials-of implied malice murder (Pen. Code,  § 187, subd. (a),
count 1) and gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a), count 2).
As to the first trial, defendant contends (1) the evidence was insufficient to support his conviction of gross vehicular manslaughter, and (2) the prosecutor improperly commented on defendant’s exercise of his right to a jury trial and improperly vouched for the People’s case. As to the second trial, defendant contends: (1) the evidence was insufficient to support his conviction of implied malice murder; (2) former section 22 violates principles of due process because it authorizes disparate treatment for the prosecution and defense with respect to the admission of evidence of voluntary intoxication to prove implied malice; (3) the trial court erred in refusing to permit defense counsel to read or present to the jury section 188 and case law regarding implied malice; (4) the trial court erred in failing to instruct the jury on gross vehicular manslaughter and/or to inform the jury that defendant had been convicted of that offense in the first trial; (5) the prosecutor committed misconduct by arguing to the jury that if it did not convict defendant of murder he would be a free man and by appealing to the passion and prejudice of the jury; (6) he was denied due process by being sentenced by a judge who had not presided over either trial and who had failed to read the trial transcripts or the defense sentencing memoranda; and (7) the cumulative error doctrine requires reversal.
II. FACTS AND PROCEDURAL BACKGROUND
Although defendant had two trials and raises different issues with respect to each, the evidence presented at both trials was substantially the same. To the extent the evidence differed, it will be addressed as relevant in the discussion of the issues.
On March 7, 2009, defendant picked up Idalee Mofsie, his friend and coworker, at her home in Rubidoux and drove to Lake Alice Bar and Grill on University Avenue in Riverside (Lake Alice), arriving at 8:30 or 9:00 p.m. The two shared a pitcher and a half to two pitchers of beer before they left about 11:00 p.m.
At approximately 11:00 p.m., Jeffrey Canada and his girlfriend, Tiffany Sorenson, were walking a dog near where University Avenue curves north at a sharp angle and turns into Redwood Drive. They heard a car engine that
sounded “revved up” coming from behind them. They turned and saw a Chevrolet Suburban approaching the curve at a high speed. The posted speed limit there is 40 miles per hour.
Canada commented that the car was not going to make the turn, and they started running toward the curve. The Suburban struck the traffic island at the curve and crashed into a palm tree on the west side of Redwood Drive. They did not see any brake lights illuminate.
John Delaney, Jr., had just driven through the same curve and was waiting for a signal light on Redwood Drive to turn green. He heard the sound of screeching tires, and he looked into his rearview mirror and saw the Suburban crash.
Mofsie was slumped over in the front passenger seat. Defendant kept getting in and out of the car trying to wake her up, but she was unresponsive. The police arrived in about five minutes. A police officer asked defendant to get out of the car so paramedics could provide medical assistance to Mofsie. Defendant’s eyes were red and watery; his breath smelled of alcohol and his speech was slow and slurred. Defendant said he had been driving west on University at 30 miles per hour. He did not remember which lane he had been in. He said he had tried to stop the car, but his brakes had failed. Defendant told an officer he and Mofsie split a pitcher and a half of beer at Lake Alice, but he did “[n]ot really” feel the effects of the alcohol. Defendant denied having any medical conditions. He said he had slept 10 hours the previous night, and he had eaten a hotdog at noon.
Defendant’s blood was drawn at the hospital at 12:25 a.m. on March 8, 2009; it measured at.22 percent blood alcohol. Under different scenarios, defendant’s blood-alcohol level at the time he was driving could have been between.13 percent and.24 percent. A person with those levels of blood alcohol would have had physical and mental impairments that included slower actions and thought processes, delays in response and reaction time, lack of judgment, risky behaviors, an inability to control steering and maintain a lane of travel, and impairments to depth perception and peripheral vision. The degree of impairment increases as the alcohol concentration level increases.
Mofsie was killed as a result of the collision; the cause of death was multiple blunt-force traumatic injuries, including a complete transection of her spinal column between the base of the skull and the first cervical vertebra and at the level of the third cervical vertebra. She also had multiple rib fractures and a compound fracture of the elbow.
A traffic reconstruction expert determined that defendant’s car was traveling at a minimum speed of 50 to 57 miles per hour when it crashed into the
palm tree. That speed did not allow him to make the 100-degree curve from University Avenue onto Redwood Drive. The critical speed to make that turn from the inside lane was 33 to 37 miles per hour and from the outside lane 30 to 34 miles per hour. The officer testified that defendant had violated the basic speed law (Veh. Code, § 22350), had made an unsafe turn (Veh. Code, § 22107), had traveled across double yellow lines at the intersection (Veh. Code, § 21460), and had traveled on the wrong side of the road (Veh. Code, § 21650). From skid marks left on the street, it did not appear that defendant had used his brakes. However, the officer testified that all the violations resulted from defendant losing control of the car once the accident was set in motion.
A police investigator determined there was no problem with the lighting on University Avenue that night, and there was no obstruction. A mechanical inspection of defendant’s car revealed the braking system on defendant’s car was operational, although some scoring on the inner disk would have affected brake performance by about 30 percent. The tire treads were within the acceptable range.
Defendant had been arrested for driving under the influence of alcohol in April 2003, and he pled guilty to that charge. In that incident, his blood-alcohol level had been measured at.14 percent and.15 percent. In October 2003, he signed a notice of completion for a first offender drinking program, representing that he had met all the attendance and course requirements. The program included open group discussions, films and lectures, and three individual meetings with a counselor. The program covered, among other topics, the impairment of driving abilities, skills, and judgment after consumption of alcohol and other drugs and the consequences of continued drinking and driving. However, defendant testified that his prior drinking program had a lot of group discussions, but he had not seen any films, and no one had ever told him that possible consequences of driving under the influence of alcohol included getting into a car accident or killing someone.
Defendant testified he and Mofsie had shared two pitchers of beer at Lake Alice but had not finished the second pitcher. He did not feel any physical or mental impairment when they left the bar. When he neared the intersection of University Avenue and Redwood Drive, he did not see the traffic island at the curve until he was only about 20 feet away. He tried to hit the traffic island to stop because his brakes were not working.
In the first trial, the jury found defendant guilty of gross vehicular manslaughter while intoxicated but it was unable to reach a verdict as to the
murder charge,  and the trial court declared a mistrial as to that count. In the second trial, the jury found defendant guilty of second degree murder. The trial court sentenced defendant to 15 years to life for the murder and imposed and ...