PEOPLE v. ESPINOZA (1989)

While driving drunk, appellant Edgar Aguirre Espinoza collided with another vehicle, killing its two occupants.   By jury trial he was convicted of two counts of second degree murder (Pen.Code, §§ 187, 188) and of related drunk driving offenses.   The trial court sentenced appellant to concurrent terms of 15 years to life imprisonment on the murder counts, and stayed execution of sentence on the remaining counts pursuant to Penal Code section 654.¹

The accident occurred around 6 p.m. on Sunday August 9, 1987, at the intersection of Durfee Avenue and Deanna Street in the City of El Monte, an intersection governed by four-way stop signs.   The posted speed limit was 35 miles per hour.   Driving with a blood alcohol level of approximately .21 percent, appellant was proceeding southbound on Durfee between 50 and 70 miles per hour when he ran the stop sign and crashed into the victims' vehicle which was crossing the intersection on Deanna.   Durfee is a wide street at that place, and in entering the intersection appellant passed between two other vehicles which were headed his direction but which were stopped at the stop sign, awaiting the crossing of the victims' vehicle.

Appellant was driving his brother-in-law's car, which he had taken without permission at about 5:30 p.m. from his brother-in-law's home on Durfee Avenue, a few blocks south of this intersection.   Appellant had asked his brother-in-law to lend him the car in order to go buy some beer, but his brother-in-law refused, telling appellant the refusal was because appellant had been drinking.   Appellant appeared drunk, and his brother-in-law could smell alcohol on appellant's breath.   Despite this warning and refusal of permission, appellant took the car anyway when his brother-in-law's attention was distracted.   Appellant had previously lived in that household and knew where the car keys were kept.

When appellant left his brother-in-law's home, he went northbound on Durfee at high rates of speed estimated by eyewitnesses between 60 and 85 miles per hour, running through three stop signs at Ferris, Deanna, and Kerrwood.   Appellant's driving attracted the attention of eyewitnesses, who spontaneously exclaimed at the time, “that guy is an accident waiting to happen” and “he is going to kill someone the way he is driving.”   After running the third stop sign, northbound on Durfee at Kerrwood, appellant turned into a driveway near a liquor store.

Fifteen or twenty minutes later, when appellant was returning southbound the fatal accident occurred.

Other evidence will be addressed in relation to the arguments on appeal.   Appellant's most important contentions concern the sufficiency of evidence of implied malice to support the convictions of second degree murder, and the jury instructions thereon.   Appellant's other contentions are addressed in part II.

I

MURDERBackground

In People v. Watson (1981) 30 Cal.3d 290, 179 Cal.Rptr. 43, 637 P.2d 279, the Supreme Court held that a drunk driver who causes a fatal accident may, under appropriate circumstances, be charged with committing second degree murder with implied malice, as distinguished from the less serious offense of vehicular manslaughter with gross negligence.  (See Pen.Code, §§ 187, 188, 189, 191.5, 192, subd. (c).)  The court delineated the differences between gross negligence and implied malice.

Gross negligence is the exercise of so slight a degree of care as to raise a presumption of conscious indifference to the consequences.   Malice sufficient for second degree murder may be implied when a person, knowing that his conduct endangers the life of another, nonetheless acts deliberately with conscious disregard for life.  (People v. Watson, supra, 30 Cal.3d at p. 296, 179 Cal.Rptr. 43, 637 P.2d 279.)   Implied malice contemplates a subjective awareness of a higher degree of risk than does gross negligence, and involves an element of wantonness which is absent in gross negligence.   (Id.)

Furthermore, gross negligence is found by applying an objective test, i.e., whether a reasonable person in the defendant's position would have been aware of the risk involved;  implied malice, on the other hand, requires that the defendant actually appreciate the risk involved, i.e., a subjective standard.   (Id. at pp. 296–297, 179 Cal.Rptr. 43, 637 P.2d 279.)

Second degree murder based on implied malice is committed when a person does 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.  (Id. at p. 300, 179 Cal.Rptr. 43, 637 P.2d 279.)  “Phrased in a different way, malice may be implied when defendant does an act with a high probability that it will result in death and does it with a base antisocial motive and with a wanton disregard for human life.”  (Id.) ²

A subsequent appellate case attempted to restate this distinction in more everyday language, that the state of mind for gross negligence is simply, “I don't care what happens” but that the state of mind for implied malice is “I know my conduct is dangerous to others, but I don't care if someone is hurt or killed.”  (People v. Olivas (1985) 172 Cal.App.3d 984, 988, 218 Cal.Rptr. 567.)

Sufficiency of Evidence

 Appellant contends the evidence in this case is insufficient to show that appellant was subjectively aware of the high degree of risk of his conduct or that he exhibited the wanton disregard for life necessary to support a finding of implied malice.   We conclude to the contrary.   Resolving all conflicts in the evidence in favor of the judgment and viewing the evidence in the light most favorable to the judgment based on the whole record, we hold substantial evidence supports the jury's finding of second degree murder.  (People v. Johnson (1980) 26 Cal.3d 557, 576, 162 Cal.Rptr. 431, 606 P.2d 738;  People v. Bassett (1968) 69 Cal.2d 122, 138, 70 Cal.Rptr. 193, 443 P.2d 777.)   Appellant contends the evidence in this case is weaker than in People v. Watson, supra, 30 Cal.3d 290, 179 Cal.Rptr. 43, 637 P.2d 279, or several post-Watson cases which have upheld drunk driving murder convictions, People v. Olivas, supra, 172 Cal.App.3d 984, 218 Cal.Rptr. 567, People v. Albright (1985) 173 Cal.App.3d 883, 219 Cal.Rptr. 334, and People v. McCarnes (1986) 179 Cal.App.3d 525, 224 Cal.Rptr. 846.   We do not necessarily agree with this characterization, but in any event each case is decided upon its own facts, and the evidence in this case is sufficient.

At this point we detail certain additional evidence in the record.   First, as to the level of appellant's intoxication, two different blood samples were taken from appellant at the hospital within an hour or two of the accident, which showed blood alcohol readings of .25 percent and .19 percent.

According to the expert testimony in this case:  these two readings were consistent because of different testing methods used and could be converted to a blood alcohol content of about .21 percent at the time of the accident.   For a 140–pound male this represented more than nine twelve-ounce cans of beer over a three-hour period, or even more beer if consumed over a longer period of time.   At .20 percent blood alcohol, about 85 percent of the population would be approaching a comatose or unconscious state.   The other 15 percent of the population which uses alcohol regularly and has developed a tolerance could still function at that level and would not be falling-down drunk.   All persons, however, including this small group highly tolerant to alcohol, would be impaired and under the influence at .08 percent.   A person's attention is divided at that level and their ability to process information is impaired.   A regular drinker with a blood alcohol level of .20 percent could be aware of his surroundings and aware of the danger of going through several stop signs on city streets at 60 miles per hour.

Appellant testified in his own defense at trial.   He denied various details of the prosecution evidence, but admitted that on both the day before the accident and the day of the accident he had been drinking beer virtually all day.   For two months prior to August 8, 1987, he was not drinking, because he was taking care of his child and wanted to keep a good record at his construction job and “didn't want to mess up.”   On Saturday, August 8, however, he worked all day outdoors removing dirt from the property of one of his employers.   It was hot and the employer provided beer for the workers all day.   Finishing work on Saturday about 6:30 p.m., appellant had more beer to drink at night, and did not get to sleep until about 4:30 a.m.   He nevertheless woke up early Sunday morning, because he was used to getting up early, and he had a couple of beers in the morning.   Around noon, he and a companion purchased a 12–pack of beer and split it, each drinking six cans of beer.   Appellant drank these beers quickly because he did not want his sisters to see him drinking.   After that he and his companions visited three more homes, where they drank some more beers.   Appellant then went to his brother-in-law's house where he asked to borrow the car, but his brother-in-law refused.   Appellant took the car anyway.   Appellant had previously lived at his brother-in-law's, and was familiar with Durfee Avenue and its stop signs.   He always stopped at them, for safety and because the police regularly watched those stop signs.   He denied that he was speeding or that he ran any stop signs when he left his brother-in-law's, going northbound on Durfee.   He visited the home of Ernesto Escobedo, who is the father of appellant's brother-in-law, where he received a message from his sister to return the car.   At that time appellant did not feel like he was drunk.   He knew he had been drinking, but he thought he could drive.   He did not think about killing anybody.   After appellant crossed the first stop sign all he remembered was seeing white and waking up in the hospital.

On appeal appellant concedes that his deliberate conduct created a high risk of death, but he questions whether the evidence is sufficient to show his subjective awareness of that risk and conscious disregard of it.   He points to various evidence in Watson, Olivas, Albright and McCarnes and argues such evidence is missing in this case.   He concludes the evidence is therefore insufficient.   We reject this analysis and find the evidence sufficient.

Appellant argues that drunk drivers are often unaware of the level of their impairment and believe themselves capable of driving satisfactorily;  they are, according to the expert testimony, impaired in their ability to process information from their surroundings.   The expert also testified, however, that a person with a tolerance for alcohol could function at a .20 percent blood alcohol level and could be capable of being aware of the danger of driving at high speed on city streets through stop signs.   Substantial evidence thus supports the conclusion that appellant was capable of being aware of the risk.

Appellant cites his own testimony that he did not think he was too drunk to drive and that he did not think about killing anybody.   With the possible exception of suicidal drivers like the one in Albright, it would be surprising if a defendant admitted that he was aware of a high risk he would kill somebody and consciously chose to disregard that risk.   A defendant's denial does not prevent a jury from finding implied malice if that finding is reasonably supported by other substantial evidence.   In this case the jury had ample reason to doubt the credibility of appellant's testimony since he had already told the police two different lies about the accident.   In the hospital emergency room at about 7 p.m. he told Officer Carlson that he was not driving and someone was just giving him a ride to the bus station for him to go back to Mexico;  the next day at the hospital he falsely told Detective Reyburn that he was going 30 miles per hour and that the brakes failed.

Appellant contrasts this case with People v. McCarnes, supra, 179 Cal.App.3d 525, 224 Cal.Rptr. 846, where that defendant's four previous convictions of drunk driving and exposure to mandatory education programs were held to support a finding that the defendant was aware of the risk.   Although there was no evidence in this case that appellant had such convictions or drunk driver education, there was other evidence relevant to appellant's awareness.   First, he admitted that he had stopped drinking for two months because he did not want to “mess up” with his child custody or his job performance.   This showed some awareness that drinking could impair his abilities to function.   Second, appellant asked permission to borrow the car but his brother-in-law refused, telling appellant the refusal was because appellant had been drinking.   Appellant took the car anyway, and the accident happened minutes later.   A specific warning, at the very time of the driving, that the defendant is presently too drunk to drive can be more compelling evidence of the defendant's awareness than educational programs conducted in the past.

Appellant contends that the warning in this case was not strong enough to convey urgency to appellant.   He cites People v. Caffero (1989) 207 Cal.App.3d 678, 685, 255 Cal.Rptr. 22, which is not a drunk driving case but a child neglect case involving medical advice about an infant's condition.   We are not persuaded that Caffero is analogous.   In this case the jury could well infer that when the car owner told appellant he could not borrow the car because he had been drinking, appellant was made aware of the risk of an accident.   Taking all the evidence in this case, the jury could find the requisite level of awareness and wanton disregard.

Appellant contrasts this case with Watson and Olivas where those defendants had another collision or near collision just before the fatal collision.   Thus, in People v. Watson, supra, 30 Cal.3d at p. 301, 179 Cal.Rptr. 43, 637 P.2d 279, the defendant nearly collided with another vehicle after running a red light;  he avoided that accident only by skidding to a stop, but thereafter resumed his speeding, “suggesting an actual awareness of the great risk of harm which he had created.”   In People v. Olivas, supra, 172 Cal.App.3d at p. 989, 218 Cal.Rptr. 567, the defendant, deliberately evading a police chase, collided with one car, nearly collided with two others and then continued his high-speed flight until the fatal accident.

Appellant contends there is no such incident in this case which would have brought home to appellant the degree of risk.   There was other evidence, however, from which the jury could reasonably infer appellant's awareness and disregard of a high risk to human life.   Appellant had lived in this residential neighborhood and he was familiar with the stop signs on Durfee Avenue.   On his northbound trip, he was observed by several eyewitnesses driving at 60 to 85 miles per hour, running at least three stop signs in a row.   From appellant's familiarity with the avenue, the jury could infer he was aware of the stop signs and deliberately ran them in conscious disregard of the risk.   Running a series of stop signs on city streets at 60 to 85 miles per hour is like playing Russian roulette.   Sooner or later, a collision will occur at one of the intersections, resulting in death or severe injury.  (See People v. Sandoval (1963) 222 Cal.App.2d 348, 352, 35 Cal.Rptr. 227.)

In People v. McCarnes, supra, 179 Cal.App.3d at page 535, 224 Cal.Rptr. 846, the court held that the defendant's awareness of the high risk of his conduct was inferable in part from the nature of the driving maneuvers, a pattern of “reckless, high-speed passing maneuvers on two-lane roads, involving repeated and deliberate driving into oncoming traffic, and culminating in a head-on collision.   Defendant's conduct was even more egregious because the oncoming vehicle he collided with was clearly visible to defendant as he entered the opposing lane.”

Similarly here, the danger of appellant's high speed running of known stop signs on a residential street was so obvious that the jury could infer appellant's awareness of a high risk of death or serious injury and conscious disregard of that risk.   Additional circumstances in this case made that danger even more obvious, because two other vehicles, travelling the same direction as appellant, were stopped at the intersection awaiting the crossing of the victims' vehicle.   Appellant ignored this obvious indication of the necessity to stop;  instead he approached these vehicles from the rear at high speed and passed between them into the intersection with no attempt to brake.

We conclude, therefore, that appellant's attempt to contrast his case from the other precedents is unpersuasive.  “[N]owhere does the opinion in Watson state that all of the factors present in that case are necessary to a finding of second degree murder.”  (People v. Olivas, supra, 172 Cal.App.3d at p. 988, 218 Cal.Rptr. 567.)   The evidence in this case is sufficient to support appellant's convictions of second degree murder.

Jury Instruction

 The trial court gave modified versions of CALJIC Nos. 8.11 and 8.31 defining implied malice.   These modified instructions tracked the language in People v. Watson, supra, 30 Cal.3d at p. 300, 179 Cal.Rptr. 43, 637 P.2d 279 that malice is implied when a person does “an intentional 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 human life.”

Appellant contends the trial court erred in refusing an additional instruction proposed by appellant, which was based upon some of the evidentiary factors in Watson, 30 Cal.3d at pp. 300–301, 179 Cal.Rptr. 43, 637 P.2d 279.³  Appellant characterizes his requested instruction as a “pinpoint” instruction directing the jury's attention to evidence from which a reasonable doubt of malice could be engendered.  (See, e.g., People v. Sears (1970) 2 Cal.3d 180, 190, 84 Cal.Rptr. 711, 465 P.2d 847.)   We hold the trial court properly rejected appellant's proposed instruction on the grounds it was confusing and misleading.   It was based on the particular evidentiary facts of the Watson case rather than the facts of this case.

Watson was a People's appeal from a pretrial order under Penal Code section 995, dismissing the murder counts charged against the defendant.   The Supreme Court reversed, holding (1) the Legislature did not intend the statute on vehicular manslaughter to preempt a murder charge in vehicular homicides and (2) there was probable cause on the facts of that case to hold the defendant to answer for second degree murder.   The Supreme Court discussed the facts of that particular case, then cautioned, “[w]e do not suggest that the foregoing facts conclusively demonstrate implied malice, or that the evidence necessarily is sufficient to convict defendant of second degree murder.”  (30 Cal.3d at pp. 300–301, 179 Cal.Rptr. 43, 637 P.2d 279.)

Watson was interpreted in People v. Olivas, supra, 172 Cal.App.3d at p. 988–989, 218 Cal.Rptr. 567, which states in pertinent part:  “[N]owhere does the opinion in Watson state that all of the factors present in that case are necessary to a finding of second degree murder.   Rather, the opinion states that the presence of those factors was sufficient in that case to support a murder conviction․   One commentator has argued that a ‘major flaw’ in Watson is the omission to state which (if any) of the factors present in that case are the sine qua non of implied malice․   However, we read Watson as deliberately declining to prescribe a formula for analysis of vehicular homicide cases, instead requiring a case-by-case approach.   If the Supreme Court had intended the factors in Watson to be required in all cases for a second degree murder conviction, it presumably would have said so.   Instead, the court simply described the distinction between vehicular manslaughter and vehicular second degree murder, and applied the law to the particular facts in that case.   Admittedly the distinction drawn in Watson between the two offenses is so subtle that it could easily be lost in application without a checklist to follow.   The case-by-case approach, however, is all the Supreme Court has given us.”  (Emphasis in original;  see also, People v. McCarnes, supra, 179 Cal.App.3d at p. 535, 224 Cal.Rptr. 846.)

A pinpoint instruction directs the jury's attention to particular facts in evidence.  (People v. Sears, supra, 2 Cal.3d at p. 190, 84 Cal.Rptr. 711, 465 P.2d 847.)   Appellant's instruction was properly rejected because it focused more on the facts in Watson and other cases than on the facts of this case.

II

OTHER CONTENTIONSWheeler Motion

 Appellant contends that during the jury selection process the trial court mishandled appellant's objection to the prosecutor's exercise of peremptory challenges.  (People v. Wheeler (1978) 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748.)   When the prosecutor exercised a second peremptory challenge (juror Aguilar), appellant objected pursuant to Wheeler that the prosecutor was excluding Hispanic surnamed jurors.   When the court asked if the prosecutor wanted to be heard, the prosecutor gave his reasons for exercising peremptories against juror Viera and juror Aguilar.   The court interrupted to state, “I am going ․ to allow Mr. Aguilar to stay on.”   Immediately after the trial court's statement, defense counsel exercised one peremptory as to another juror, then both counsel announced their acceptance of the jury panel.

Appellant now contends that allowing juror Aguilar to stay on the jury was not the proper remedy, that if the trial court was not satisfied by the prosecutor's response the court should have dismissed the entire jury panel and started over.  (See People v. Granillo (1987) 197 Cal.App.3d 110, 119–120, 242 Cal.Rptr. 639.)

This argument may not be raised for the first time on appeal.  (See People v. Haskett (1982) 30 Cal.3d 841, 860, 180 Cal.Rptr. 640, 640 P.2d 776;  People v. Jurado (1981) 115 Cal.App.3d 470, 491–492, fn. 20, 171 Cal.Rptr. 509;  People v. Ortega (1984) 156 Cal.App.3d 63, 67–70, 202 Cal.Rptr. 657.)   Assuming that the court fashioned an erroneous remedy by reinstating juror Aguilar, this procedural irregularity could have been avoided by bringing it to the trial judge's attention.  (See 9 Witkin, Cal.Procedure (3d ed. 1985) Appeal, § 311, pp. 321–322.) ⁴  Defense counsel may well have made a tactical decision that the jury as constituted, with juror Aguilar back on it, was more favorable to appellant than could be obtained by starting over.   Appellant may not silently gamble on a favorable verdict then raise a new issue on appeal which could have been remedied had it been brought to the trial court's attention.⁵

Photograph of Victims While Alive

 Appellant's next issue involves admission of evidence.   The victims were a married couple, Mr. and Mrs. Helms.   Mrs. Helms' adult son testified that the victims had been visiting his home on Deanna Street near Durfee, and had just driven away in their Volkswagen Beetle when the accident occurred.   He identified a portrait photo of the couple, People's Exhibit 4.   The trial court overruled defense counsel's objection that the photo was “cumulative” and “inflammatory” as creating sympathy for the victims.

Appellant contends there was no dispute at trial that the victims were human beings who had been alive prior to the accident, and the photograph was therefore irrelevant.   Assuming that defense counsel's objection sufficiently made clear that there would be no contested issues to which the photo would be relevant, any error in admitting the photo was utterly harmless.   This ordinary photograph was not likely to inflame the jury.  (People v. Thompson (1988) 45 Cal.3d 86, 115, 246 Cal.Rptr. 245, 753 P.2d 37;  People v. Hovey (1988) 44 Cal.3d 543, 571, 244 Cal.Rptr. 121, 749 P.2d 776;  People v. Hendricks (1987) 43 Cal.3d 584, 594–595, 238 Cal.Rptr. 66, 737 P.2d 1350.)

Argument to Jury

 Finally, appellant contends the trial court improperly restricted defense counsel's argument to the jury.   Defense counsel began arguing to the jury that “Mr. Hearnsberger [the prosecutor] is a very experienced prosecutor.   He has tried drunk driving cases before.   If this guy had driven drunk before and had the conviction you can be sure that you would know about it.”   On objection by the prosecutor, the trial court ruled that defense counsel could not comment upon the presence or absence of prior criminal convictions.   The court instructed the jury that there was no evidence one way or the other of a criminal record, that it was not an issue in the case, and that the jury should disregard counsel's comment and decide the case based upon the evidence presented.

Appellant contends that prior convictions, if any, would have been admissible, that his trial counsel had the right to comment upon the failure of the prosecution to produce any such evidence, and that the trial court's ruling improperly restricted trial counsel's argument.

We reject appellant's contention for several reasons.   We find the trial court acted well within its authority to limit the argument of counsel to material matters.  (Pen.Code, § 1044.)

Appellant cites People v. McCarnes, supra, 179 Cal.App.3d 525, 532, 224 Cal.Rptr. 846 and People v. Brogna (1988) 202 Cal.App.3d 700, 709, 248 Cal.Rptr. 761, cases which held that prior drunk driving convictions, at least if they involved an education program as part of the sentence, are relevant in a drunk driving murder prosecution to show the defendant's subjective awareness of the high risk.   It does not follow, however, that if appellant had any such convictions they necessarily would have been admitted in this case.   McCarnes and Brogna held that the admissibility of such evidence is subject to a trial court's discretion under Evidence Code section 352.   Admission of such evidence would turn on several extraneous factors such as the circumstances in the prior case, the trial court's discretion, and tactical decisions the prosecutor might make.

Second, even assuming such evidence would have been admissible if available, the failure to introduce it has far less probative value than appellant assumes.   Appellant cites People v. Coleman (1969) 71 Cal.2d 1159, 1167, 80 Cal.Rptr. 920, 459 P.2d 248 and People v. Hall (1970) 7 Cal.App.3d 562, 567, 86 Cal.Rptr. 504,⁶ cases where the prosecutor was allowed to comment on the failure of the defendant to call logical witnesses.   In those cases testimony from the absent witness would have been highly relevant to the issues and evidence already in the case.   In Coleman the defendant testified but did not call his wife, who would have been “a material and important witness,” to corroborate a portion of his testimony.   In Hall, the prosecution evidence showed there were several persons present at the defendant's house when he sold heroin;  the defendant testified to an alibi.   The prosecutor properly commented on “the failure of appellant to call any of those persons to testify to the fact that appellant was not there at the time of the alleged crime in spite of appellant's apparent familiarity with persons who frequented those premises.”

The failure of a defendant to produce a corroborative alibi witness or an eyewitness who is disclosed by the other evidence can be very damaging;  but the failure of the prosecution in this case to show prior drunk driving convictions detracts little from the prosecution case and adds even less to the defense case.   The prosecution proved implied malice based on appellant's familiarity with the stop signs on this avenue, the nature of appellant's high speed and reckless driving, and the warning from appellant's brother-in-law that appellant was too drunk to borrow the car.   As the trial court stated, there was no issue in this case about prior convictions.   Defense counsel's attempt to argue facts not present in this case is analogous to attempts to argue irrelevant facts from other unrelated cases, which a trial court may properly restrict.  (People v. Mendoza (1974) 37 Cal.App.3d 717, 725, 112 Cal.Rptr. 565.)

The judgment is affirmed.

FOOTNOTES

1.   In addition to the murder counts, appellant was convicted of two counts of vehicular manslaughter while intoxicated (Pen.Code, § 191.5), one count of driving under the influence of alcohol causing bodily injury to more than one victim (Veh.Code, §§ 23153, subd. (a), 23182) and one count of driving with a blood alcohol level of .10 percent or more causing bodily injury to more than one victim (Veh.Code, §§ 23153, subd. (b), 23182).

2.   After Watson, the Legislature amended Penal Code section 192 and added Penal Code section 191.5.   In both enactments the Legislature expressly confirmed the propriety of prosecutions for murder under the standards of Watson.  (Pen.Code, §§ 191.5, subd. (d), 192, subd. (c), last par.)

3.   Appellant's requested instruction stated:  “In this case Mr. Espinoza is charged with Murder resulting from the driving of an automobile.   In deciding whether or not implied malice exists you should carefully weigh among others the following factors:  [¶] 1. Whether or not Mr. Espinoza drove to a location where he knew he would be drinking and would thereafter expect to drive again.  [¶] 2. Whether or not Mr. Espinoza had any special knowledge or training which would give him an awareness of the hazards of driving while intoxicated.  [¶] 3. Whether or not Mr. Espinoza exhibited a driving pattern just prior to the accident which you believe should have put him on notice that his driving was impaired for example:  [¶] (a) excessive speed and or loss of control.  [¶] (b) failure if any to obey any traffic control devices other than that involved in the accident.  [¶] (c) near collisions prior to the accident.  [¶] (d) any other driving pattern you find to be true and you believe to be relevant.”

4.   In People v. Granillo, supra, 197 Cal.App.3d at pages 118, 119, 242 Cal.Rptr. 639, the trial counsel specifically urged the trial court to start afresh with a new panel.

5.   Appellant argues that the alleged error was “jurisdictional,” involving appellant's “fundamental” rights, and may therefore be raised despite failure to object in the trial court.   This argument is not persuasive and is not supported by the authorities cited, which are distinguishable.   Some of these use the term “in excess of jurisdiction” for the purpose of determining if a particular type of writ may issue.  (See 2 Witkin, Cal.Procedure (3d ed. 1985) Jurisdiction, §§ 220, 239, pp. 607–608, 633–634.)   This does not determine whether an error may be raised on appeal despite failure to object in the trial court.   In People v. Chadd (1981) 28 Cal.3d 739, 757, 170 Cal.Rptr. 798, 621 P.2d 837, cited by appellant, the court held that the statute of limitations for a crime is a substantive right declared by the Legislature which deprives the courts of the power to proceed with prosecution after the statute has run.

6.   Disapproved on other grounds in People v. Beagle (1972) 6 Cal.3d 441, 451, 99 Cal.Rptr. 313, 492 P.2d 1 and in Reynolds v. Superior Court (1974) 12 Cal.3d 834, 837 fn. 1, 117 Cal.Rptr. 437, 528 P.2d 45.

ASHBY, Associate Justice.

LUCAS, P.J., and BOREN, J., concur.