THE PEOPLE, Plaintiff and Respondent, v. PABLO EMMANUEL DIAZ, Defendant and Appellant.
No. D063686
Fourth Dist., Div. One.
June 24, 2014
362
[CERTIFIED FOR PARTIAL PUBLICATION*]
Lynda A. Romero, 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, Charles C. Ragland and Scott C. Taylor, Deputy Attorneys General, for Defendant and Appellant.
OPINION
AARON, J.—
I.
INTRODUCTION
In the first of two trials in this case, a jury found Pablo Emmanuel Diaz guilty of gross vehicular manslaughter while intoxicated (
The People later retried Diaz on the murder count, and the jury in the retrial found Diaz guilty of murder. The trial court sentenced Diaz to an aggregate term of 23 years to life. The court imposed a sentence of 15 years to life on count 1. The court also sentenced Diaz to a consecutive eight-year term on count 3, consisting of a three-year term on the underlying offense and an additional five years for the great bodily injury enhancement. The court imposed and stayed sentences on counts 2 and 4 pursuant to
On appeal, Diaz claims that the trial court erred in permitting the jury in the retrial on the murder charge to view two videos concerning the consequences of alcohol-related driving offenses. The videos include numerous tearful testimonials from the families of victims of alcohol-related offenses, statements from a prosecutor and a defense attorney concerning the high rates of convictions for such offenses, and statements from a judge to the effect that punishment is needed and is effective for alcohol-related driving offenses.
We conclude that the trial court erred in permitting the jury to view the videos. We further conclude that the error was prejudicial. Not only did the prosecutor repeatedly refer to the videos during closing argument, the jury asked questions during deliberations concerning subjects that were discussed only in the videos. Moreover, the record clearly indicates that the jury viewed
Diaz also claims that his convictions on counts 3 and 4 must be reversed because they are lesser included offenses of count 2. In the unpublished portion of this opinion, we conclude that reversal is not required on either count 3 or count 4 because the People presented evidence that the offenses charged in counts 3 and 4 were committed against different victims from the offense in count 2.
Accordingly, we reverse the murder conviction, affirm the convictions on the remaining counts, and remand the matter to the trial court with directions to permit the People to retry Diaz on the murder charge.
II.
FACTUAL BACKGROUND4
A. Diaz‘s drinking prior to the crash
On August 28, 2008, Diaz drove his friends, Rolf Alvarez, Sergio Martinez, and Victor Sanchez, to a grocery store to purchase a 12-pack of beer, and then to a bar. On the way to the grocery store, Diaz was driving fast. Alvarez told him to slow down. The group drank beer on the way to the bar, and finished the 12-pack in the parking lot of the bar. They entered the bar at around 12:00 a.m.
While at the bar, Diaz consumed several mixed drinks. Martinez estimated that Diaz and Sanchez went to the bar to get drinks about six times. They stayed at the bar until approximately 1:00 or 1:30 a.m. According to Alvarez, by that time, Diaz was “drunk.” Martinez decided to leave the bar with his girlfriend. Before leaving, Martinez told Alvarez to take the car keys away from Diaz.
In the parking lot of the bar, Alvarez twice asked Diaz if Alvarez could drive. Diaz insisted on driving and began to drive the three men from the bar.
B. The crash
Alvarez, Sanchez, and Diaz stayed at the party for approximately 20 minutes. When they left the party, Diaz started to drive the group to a fast-food restaurant. Diaz was driving fast again. Alvarez told Diaz to slow down several times, but Diaz would slow down only briefly. Alvarez told Diaz to slow down one last time, but Diaz did not slow down. Diaz struck a curb and lost control of the car. The car became airborne, slid on its side, and hit a pole and a fence.
Rescue personnel arrived at the scene. They determined that Sanchez was dead.5 Diaz did not appear to be injured, but did appear to be intoxicated.
C. The investigation of the crash
An inspection of Diaz‘s car after the crash did not reveal any mechanical failures that would have caused the crash. In addition, it appeared that Diaz had not applied the brakes at the time of the crash.
An expert in accident reconstruction testified that, just prior to the crash, Diaz‘s car was traveling at approximately 102 miles per hour and that it appeared that Diaz had pushed the accelerator to the floor.
D. Diaz‘s intoxication
Diaz‘s blood was drawn at the scene of the crash. Testing determined that he had a 0.21 percent blood-alcohol level. An expert testified that Diaz would have had to consume about 14 standard drinks to reach that level. The expert also testified that Diaz‘s blood-alcohol level was likely between 0.22 and 0.23 percent at the time of the crash.
E. Diaz‘s prior convictions for drinking and driving and his participation in mandatory alcohol education programs
At the time of the crash, Diaz‘s driver‘s license was suspended. He had suffered two prior convictions for driving with an elevated blood-alcohol level. Diaz pled guilty in both prior cases. In connection with both prior
After suffering his first conviction, Diaz was ordered to attend a mandatory alcohol education program offered by an entity called Maximizing Access to Advance Our Communities (MAAC). Diaz registered for the MAAC program on December 3, 2007, but did not complete the program and was terminated in May of 2008. Prior to his termination from the program, Diaz had completed the first three education sessions, one group session, eight one-on-one sessions, and 12 self-help meetings.
During one of the MAAC sessions that Diaz attended, he viewed a video entitled “Crossing the Line” (MAAC Video). The video focused on the consequences of alcohol-related driving offenses in Delaware. Diaz also attended a mandatory education class offered by Mothers Against Drunk Driving (MADD) in which he viewed a video (MADD Video) that concerned the impact that two alcohol-related traffic fatalities had on the victims’ families. The prosecution played both the MAAC Video and the MADD Video for the jury.
III.
DISCUSSION
A. The trial court committed reversible error in permitting the jury to view the MAAC Video and the MADD Video
Diaz claims that the trial court committed reversible error in permitting the jury to view the MAAC Video and the MADD Video.
1. Factual and procedural background
a. Proceedings concerning the admissibility of the videos
Prior to Diaz‘s retrial on the murder charge, the People filed a motion in limine seeking permission to offer evidence that, prior to the crash in this case, Diaz had attended portions of the two mandatory alcohol education programs referred to in part II.E., ante. The People also sought permission to offer in evidence the two videos that Diaz had viewed at the classes that he had attended. The People did not describe the content of the videos in their motion, but provided the court with transcripts of the MAAC Video and the MADD Video.
After conducting an off-the-record discussion concerning the admissibility of the videos, the trial court held a hearing on the subject. The court stated at the outset of the hearing that it had read transcripts of both videos, but that it had not viewed the MADD Video.6 The court stated that its tentative ruling was to permit the People to “use both the [MAAC] and the MADD videos.” The court indicated that it agreed with the prosecutor that the videos depicted two different perspectives concerning the consequences of consuming alcohol and driving. According to the trial court, the MAAC Video focused primarily on the defendant‘s perspective “in terms of what he experiences,” after committing an alcohol-related driving offense, while the MADD Video “was looking at . . . the damage that can be done” as a result of an alcohol-related driving offense.
Defense counsel “strenuously objected” to the admission of the videos. Counsel argued that the MADD Video contained highly emotional content, and that to permit the People to show the video at trial would allow the People to “play[] to the sentiment and heart strings of the jury.” Counsel also argued: “It‘s talking about . . . [how the victim‘s] surviving family was devastated, this is a travesty, I could go on and on. I went through and underlined all the emotional words, it seems like a good third of the transcript has been underlined by me.”
Defense counsel also argued that the circumstances of one of the cases discussed in the MADD Video were “eerily similar to the facts in this case,” thereby increasing the potential for prejudice. In addition, counsel argued that the MADD Video was cumulative to other evidence that demonstrated Diaz‘s awareness of the dangers of drinking and driving.
The People argued that the videos were admissible to show the “state of mind of [Diaz],” in order to prove malice aforethought. The People further
Defense counsel reiterated his arguments that the prosecutor had numerous other ways to prove that Diaz was aware of the dangers of drinking and driving, and that the circumstances of one of the cases discussed in the video were very similar to the circumstances of the charged offense and therefore highly prejudicial. Defense counsel also argued that the video “excerpts from these two parents who lost their kids [(on the MADD Video)] is absolutely more prejudicial than probative in the sense that it inflames the passions of the jury.” Counsel noted that at one point in the video, a mother of a deceased victim of a drunk driving crash discusses: “going to the mortuary and talking about feeling pain and desperation and then this mother who wanted to change her dead son‘s clothing at the mortuary and wasn‘t allowed to. Just reading in the hallway, I mean, it caused me to almost tear up. I just don‘t think that it‘s proper in a murder trial to bring that in . . . .”
After hearing argument from counsel, the trial court ruled that it would not exclude the videos pursuant to
b. The MAAC Video
During the trial, the People played for the jury an unedited version of the MAAC Video. The video, entitled “Crossing the Line,”8 is approximately 29 minutes in duration. It shows the aftermath of several car crashes that occurred in the State of Delaware, including an alcohol-related crash in which a passenger was killed and a second victim was seriously injured, and another alcohol-related collision in which a drunk driver was rendered permanently brain damaged. Graphic crime scene photographs, newspaper headlines, and photographs of the injured and of the deceased while they were alive are displayed throughout the video.
In describing the crash, Bond states, “I definitely did not have the proper frame of mind . . . to operate a motor vehicle that night. One beer would be too many. Um, I know this now, but four to five, I shouldn‘t have even thought about it.” A state trooper also discusses the crash and the evidence that he gathered after the crash. De Santo‘s sister and Sauder tearfully speak about De Santo‘s death, while the video displays newspaper headlines and grave markers. Bond‘s father talks about the crash and says, “It almost pales by comparison when you look at what happened to [De Santo‘s] family and what happens to our family, by comparison, because [my son] will be with us.”
Bond‘s defense counsel states, “[I]t‘s pretty clear in Delaware at least, that no matter who you are or where you come from, if you go to trial and you get convicted, you‘re gonna go to jail for a considerable period of time and the jail sentences are getting longer and longer.” He also states, “[N]o matter how good of a lawyer that you get, if the facts aren‘t in your favor and if there‘s nothing to work with and if the jury rejects what your arguments are, it doesn‘t matter. It doesn‘t matter how much you pay that lawyer, it doesn‘t matter whether you bring somebody from, uh, California . . . who makes millions of dollars. Uh, the bottom line is the same in Delaware. If you get convicted of this type of a crime, you‘re gonna go to jail no matter who you are.”
A Delaware deputy attorney general states, “I would say that for the most part, if we seek an indictment in the case, there is about a 95 percent chance that you are going to ultimately be convicted.”
In discussing his situation, Bond states that he has “criminally negligent homicide” on his record, and that he has to “deal with the situation for [four] years of being incarcerated.” Bond also somberly discusses how he has to “deal with” the fact that he killed his friend who had “a real bright future.” Sauder tearfully remembers her friend, discussing her favorite music and a sweater that she once owned.
The second segment features Wade Collins, who is introduced with the word “Manslaughter” displayed under his name on the screen. Collins discusses a drag race in which he killed a woman in a car that was not
At this point in the video, a Delaware judge appears and states, “The court is beginning to treat . . . juveniles the same as adults when it comes to death or serious physical injury caused by gross reckless driving, or driving while under the influence . . . .” The judge then says, “[T]he only message people truly understand is the punishment in those type[s] of cases. That . . . is the clearest message that the courts can send . . . to the public, is to look at the sentences imposed upon these individuals . . . .” The judge adds, “[P]eople who get behind the wheel while they‘re drinking are people, a lot of them read the newspaper, understand the particular punishment and I think the punishment in this area has more deterrence than punishment for a lot of other crimes.” The video then shows Collins talking about the “nightmare” of being incarcerated.
The third segment features a man, Tom Golden, sitting next to his fiancé, Lauri Hanulik, who is in a hospital bed. Hanulik‘s name is placed on the screen with the words “Permanently Brain Damaged” printed below. Hanulik‘s eyes are open, but she appears to be in a comatose state. Golden explains that he had warned Hanulik that her drinking and driving would result in her death, but that she continued to drink and drive and that she was involved in an alcohol-related crash from which she became permanently brain damaged. Golden describes in graphic detail Hanulik‘s current physical state and the medical treatment that she receives in order to keep her alive.
A fourth segment discusses the aftermath of a crash in which the driver was driving between 90 and 95 miles per hour and four of five people in the speeding car were killed. The mother of one of the dead victims tearfully discusses going to the hospital and finding out that her daughter had been killed. A father discusses the loss of his son. The driver appears on the screen with the word “Manslaughter” below his name. The driver discusses the mental anguish that he feels, knowing that he is responsible for his friends’ deaths. A state trooper discusses the psychological trauma that both the perpetrators and the families of victims of drunk driving crashes suffer.
Near the end of the video, Sauder discusses riding in cars with people who have been drinking. She says, “[T]he people in your car, they trust you with their life. I mean I trusted someone with my life and I almost lost it.” Bond then talks about how those watching the video may dismiss it as just a
c. Defense counsel‘s renewed objection to the MAAC Video
At the conclusion of the playing of the video, outside the presence of the jury, defense counsel renewed his objection to the video, stating, “I objected to this back in motions in limine . . . [and] the Court ruled, over my objection, that it was admissible. I think . . . that‘s a major problem. I think it‘s going to be grounds for reversal.” Defense counsel argued that the video contained “misstatements of law throughout that video.” For example, counsel noted that one of the defendants on the video indicated that he would be incarcerated for four years for committing an alcohol-related driving homicide. Counsel argued that such a statement would “leave this jury with the impression that their decision really doesn‘t make that big of a difference, look, all he‘s looking at is four years anyway.” Counsel also objected to the Delaware prosecutor‘s statement concerning the extremely high conviction rates for alcohol-related driving offenses in that state and a defense attorney‘s statement suggesting that defendants who go to trial for alcohol-related driving offenses are likely to be convicted. Defense counsel also objected to the “gross misstatement of the law” made by Bond at the end of the video pertaining to the consequences of being involved in a crash after having just one drink.
The prosecutor responded by stating that she did not think that the video was “overly prejudicial,” and that the jury could be “instructed that laws are different from state to state and that their role isn‘t in the punishment.”
After clarifying with the prosecutor that she had not sought admission of either the MAAC Video or the MADD Video at the first trial, the trial court stated that when the People had sought admission of the videos prior to this trial, “they had enough case law to support the position that the videos that the defendant sees in terms of his mental state . . . are . . . admissible.” The court also stated, “I wouldn‘t have ruled differently had I seen the [MAAC] Video” prior to ruling on the People‘s motion in limine that the MAAC Video could be played for the jury at the trial.9 The court further indicated that it would be willing to provide the jury with a curative instruction explaining that the “law is different” in California from the Delaware law described in the video.
d. The curative instruction
At the next court session, the court addressed the jury, stating:
“The video you saw last Thursday was shown for a specific purpose. The video was made out of [the] State of Delaware, and did not properly state California law or punishment. You are ordered to disregard any statement made or identifying titles used concerning what the participants in the video were charged with or the punishment imposed, or what the law in Delaware is concerning drinking and driving and causing injury or death.
“And you are further ordered to disregard any statements by the judge, prosecutor and defense attorney in the video concerning what happens to individuals charged with drinking and driving offenses in Delaware. You may not for any reason at all discuss or consider these issues during your deliberations, or let them influence your decision in any way.”
e. The trial court‘s ruling that the MAAC Video would not be received in evidence
That same day, the People moved to admit the MAAC Video in evidence. Defense counsel objected. The trial court indicated that it would consider the issue at a later time.
Later that day, outside the presence of the jury, the trial court held a further hearing on the admissibility of the MAAC Video. Defense counsel renewed his objection to the admission of the video pursuant to The prosecutor reiterated that the MAAC Video was relevant to show Diaz‘s “knowledge of the dangers of drinking and driving.” The prosecutor also noted that the jury would be instructed at the close of the case that punishment is “not their purview.” The prosecutor responded in part: “Your honor, if I may, if it was demonstrative only, then it should not have been shown to the jury at all. They‘ve seen this. It‘s a piece of evidence that was marked. The People laid the foundation for it. And this goes to the heart of this case, which is what the defendant knew.” The prosecutor and the court then engaged in a lengthy discussion of whether the court‘s ruling precluded the prosecutor from discussing the video during closing argument. The court stated that the prosecutor would not be precluded from referring to the video during closing argument. The court also clarified that it had provided the curative instruction over defense counsel‘s objection. Later during the trial, the People played the MADD Video. The video was shown without sound because the people who appear in the video speak in Spanish.10 As the prosecutor played the video for the jury, an interpreter read the jury a transcript of the video in English. The court also provided the jury with transcripts of the video in both English and Spanish. The MADD Video is approximately 33 minutes long and features two individuals, each of whom had a son who was killed in an alcohol-related crash. In the first segment, a mother discusses her son‘s death in a drunk The woman also explains that the drunk driver of the truck in which her son was killed was her son‘s friend: “That‘s why it was hard to accept that a friend could take the lives of . . . friends like that. To say, ‘Let‘s go, I‘ll drive.’ Friends should protect one another . . . . He will never know the pain we had.” The segment closes with the mother discussing the impact of her son‘s death on the rest of her family, explaining “Gabriel [(her son)] wasn‘t the only victim; there were a lot of us.” She closes by stating, “[O]ur lives will never be the same.” The video contains photographs of the victim taken throughout his life, as well as a photograph of his grave marker. The MADD Video also features a father who lost “his only son” to a drunk driver. The father reminisces about his son as a young boy and describes visiting his son in the hospital after the crash: “At first if I grabbed his hands, he would sometimes squeeze my hand. But doctors told me it was possible he was responding to me, or it was possible that it was just his muscles doing that without it having anything to do with his feelings. But I‘ll never, never know that.” The father also discusses the procedures and decisions made regarding his son‘s medical treatment, as well the family‘s decision to terminate life support. He speaks emotionally about the pain that he felt and the impact that his son‘s death had on his family and friends. The father‘s demeanor is somber throughout the video, and tearful at times. We review for an abuse of discretion the trial court‘s decision to permit the jury to view the videos. (See, e.g., People v. Guerra (2006) 37 Cal.4th 1067, 1113 [40 Cal.Rptr.3d 118, 129 P.3d 321] [abuse of discretion standard of review applies to any ruling by a trial court on the admissibility of evidence and is particularly appropriate for questions regarding relevance and undue prejudice].) Diaz objected to the admission of both videos pursuant to “‘The “prejudice” referred to in “‘[E]vidence should be excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors’ emotional reaction. In such a circumstance, the evidence is unduly prejudicial because of the substantial likelihood the jury will use it for an illegitimate purpose.‘” (People v. Doolin (2009) 45 Cal.4th 390, 439 [87 Cal.Rptr.3d 209, 198 P.3d 11].) “‘. . . California has followed the rule in vehicular homicide cases that ‘when the conduct in question can be characterized as a wanton disregard for In Murray, supra, 225 Cal.App.3d at page 737, the defendant was convicted of four counts of murder after killing four people in a head-on collision while driving under the influence of alcohol. The Murray court noted that the People presented the following evidence related to the content of a mandatory alcohol education course that the defendant had attended as a result of a prior conviction for “alcohol-related reckless driving“: “Charles Lemke, a deputy sheriff, taught the alcohol education classes in appellant‘s 1983 traffic school. In his 10 hours of lessons, Lemke covered legal aspects of driving under the influence, historical and contemporary use of alcohol, and the long-term effects of alcohol on organs of the body. He taught that even small amounts of alcohol could impair the nervous system, the muscles, and the brain and lead to problems of judgment and lack of coordination. He taught that alcohol impairs the ability to make rational decisions and to judge distance and speed. He taught that alcohol reduces inhibitions and causes drivers to take abnormal chances, such as speeding and dodging in and out of traffic. He used films which demonstrated how driving performance declines as the blood-alcohol level increases, showed actual accidents involving drunk driving, and displayed the effect of alcohol on the brain. He used charts and curves demonstrating the number of drinks which average persons of different weights would require to reach prohibited blood-alcohol percentages, and he taught that beer has the same effects as liquor and wine.” (Id. at p. 739.) In concluding that the “trial court properly admitted evidence that in connection with appellant‘s three prior convictions of drunk driving and alcohol-related reckless driving, appellant completed mandatory education programs on the dangers of drunk driving,” the Murray court reasoned that several courts had “held such evidence is relevant to show the accused‘s awareness of the life-threatening risks of drunk driving.” (Murray, supra, 225 Cal.App.3d at pp. 744–745.) The Murray court also relied on evidence of the defendant‘s prior alcohol-related driving convictions and attendance at mandatory alcohol education programs in concluding that the People had presented sufficient evidence of implied malice to support the murder convictions. (Id. at p. 748.) The trial court‘s decision to permit the jury to view the MAAC Video and the MADD Video permitted the prosecution to present to the jury evidence unlike that which has previously been held to be admissible by any court in California. Despite the numerous vehicular homicide cases in which California courts have upheld the admission of evidence that a defendant participated in an alcohol education program prior to the commission of the charged murder, we are aware of no authority that would provide support for the admission of videos that contain highly emotional footage of victims and their families discussing the impact of alcohol-related crashes, unrelated to the charged offense. On appeal, the People do not contend that there is any such authority.12 Rather, the People argue, “The content of the [MAAC and MADD] To begin with, both videos contain the testimonials of multiple somber and tearful individuals discussing numerous alcohol-related vehicle crashes in which their loved ones were killed. The speakers on the videos describe in vivid detail both the crashes and the impact that the crashes had on them and their families. After having viewed the videos, we can say with near certainty that the jurors in this case would have felt sympathy for the families of the victims of the alcohol-related crashes discussed in the videos. Allowing the jury to view the videos created a substantial danger of inflaming the jury‘s passions by engendering similar feelings of sympathy for the victims of the charged offenses and their families. (Cf. People v. Arias (1996) 13 Cal.4th 92, 160 [51 Cal.Rptr.2d 770, 913 P.2d 980] [“It is ‘settled that an appeal to the jury to view the crime through the eyes of the victim’ ” and ” ‘an appeal for sympathy for the victim is out of place during an objective determination of guilt.’ “].) The likelihood of this type of undue prejudice was particularly high in light of the fact that speakers portrayed in both the MADD Video and the MAAC Video described alcohol-related traffic fatalities that shared many similarities with the charged offense. In the MADD Video, a mother describes a scenario in which her son went out with a group of friends and the driver, who had been drinking alcohol, crashed the vehicle. Her son, a passenger, was killed in the crash. In the MAAC Video, Bond described going to a bar with friends, consuming alcohol at the bar, driving while intoxicated, crashing the vehicle, and injuring one passenger and killing another passenger. The videos contain numerous images that serve to heighten the emotional impact of the videos. The MADD Video contains several images of the deceased victims taken throughout their lives, as well as a grave marker for one of the victims, while the MAAC Video contains multiple photographs of crime scenes that depict severely damaged vehicles, debris and blood spatter, newspaper headlines, and photographs of grave markers. In addition, the The MAAC Video also contains numerous statements that were entirely irrelevant to the case, and were highly prejudicial in that they suggested to the jury that it would be acting in an aberrant fashion if it were to find Diaz not guilty. For example, on the MAAC Video, both a prosecutor and a defense attorney make statements that suggest that those who are charged with alcohol-related driving offenses are likely to be found guilty.13 Perhaps even more wrought with the potential for prejudice is footage in the MAAC Video of a judge stating that punishment is the “only message people truly understand . . . in [these] type[s] of cases,” and that “punishment in this area has more deterren[t] [effect] than punishment for a lot of other crimes.” As Diaz argues in his brief, “There simply is no relevance to the conviction rates, defense probabilities and sentences in any case much less those from another jurisdiction.” (See, e.g., People v. Honeycutt (1977) 20 Cal.3d 150, 157, fn. 4 [141 Cal.Rptr. 698, 570 P.2d 1050] [“A defendant‘s possible punishment is not, of course, a proper matter for juror consideration . . . .“].) In addition, one of the inmates in the MAAC Video, David Bond, states that he would be incarcerated for four years.14 Not only is this punishment-related comment entirely irrelevant to proving the charged offense, it was also uniquely likely to cause prejudice in that the statement implicitly suggested that Diaz would be incarcerated for a similar, relatively short, period of time if convicted since Bond, like Diaz, was responsible for an alcohol-related crash in which one of his friends died and a second friend was seriously injured. In short, the videos are highly inflammatory, appeal to the jurors’ sense of sympathy and passion, improperly depict jail conditions, contain discussions of potential sentences, and include statements of law that have no relevance Having the jury view the highly inflammatory content of the two videos for the purpose of establishing Diaz‘s knowledge of the dangers of drinking and driving exposed the jury to evidence that would otherwise be patently and indisputably inadmissible. Given the near certain potential for undue prejudice and the marginal legitimate probative value of the videos, the trial court should have exercised its discretion in the only reasonable manner, and ruled the videos inadmissible.16 While we are cognizant that it is the rare case in which a trial court‘s evidentiary rulings are determined to be erroneous, for the reasons stated above, we conclude that this is such a case. (See People v. Lang (1989) 49 Cal.3d 991, 1050 [264 Cal.Rptr. 386, 782 P.2d 627] [observing that the abuse of discretion standard of review in the evidentiary context “calls for deference—but it does not, and cannot, require abdication“].) Accordingly, we conclude that the trial court erred in permitting the jury to view the videos. Diaz claims that permitting the jury to view the videos violated his due process right to a fair trial and thus, that the Chapman standard of prejudice applies. (See Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, We assume for purposes of this decision that the trial court‘s error did not rise to the level of a federal constitutional violation because it is clear that even under the more lenient Watson standard, reversal is required. As noted above, the videos were extremely likely to inflame the jury‘s passions against Diaz. While the trial court provided a curative instruction after the jury viewed the MAAC Video in an attempt to lessen the prejudice from having exposed the jury to irrelevant “statements by the judge, prosecutor and defense attorney in the video concerning what happens to individuals charged with drinking and driving offenses in Delaware,” the instruction was inadequate. To begin with, the primary point of the MAAC Video was, in fact, to illustrate “what happens to individuals charged with drinking and driving offenses in Delaware.” Thus, the trial court‘s curative instruction was an attempt to unring not just a bell, but an entire carillon.18 (See People v. Hill (1998) 17 Cal.4th 800, 845–846 [72 Cal.Rptr.2d 656, 952 P.2d 673] [” ‘It has been truly said: “You can‘t unring a bell.“’ [Citation.] Here, the jury heard not just a bell, but a constant clang . . . .“].) In addition, the trial court‘s curative instruction did not address the substantial danger that the jury‘s passions would be inflamed by showing emotional testimonials of the families of victims of alcohol-related driving offenses that were similar to the charged offense. The trial court‘s subsequent refusal to admit the MAAC Video in evidence did not, and could not, eliminate the prejudice caused by having shown the video to the jury. As the prosecutor stated in arguing for the Compounding the prejudice caused by allowing the jury to view the videos, the prosecutor referred to the videos five times during closing argument. The prosecutor read quotations of statements made in both videos, and even referred to statements made by the Delaware prosecutor and judge in the video despite the court‘s instruction to the jury that it should disregard those statements.20 A prosecutor‘s reference to evidence that should not have been presented to the jury increases the potential for prejudice flowing from the error. (See, e.g., People v. Cruz (1964) 61 Cal.2d 861, 868 [40 Cal.Rptr. 841, 395 P.2d 889] [“There is no reason why we should treat this evidence as any less ‘crucial’ than the prosecutor—and so presumably the jury—treated it.“]; compare with People v. Gonzales (2013) 56 Cal.4th 353, 391 [154 Cal.Rptr.3d 38, 296 P.3d 945] [concluding erroneous admission of evidence was harmless where “in his closing argument, the district attorney did not emphasize the evidence affected by the trial court error . . .“].) The record also contains several additional indicia of prejudice caused by the showing of the videos. During deliberations, the jury asked two questions about “manslaughter,” a charge that was not presented in the case, and that was mentioned only in the MAAC Video. These questions suggest that the jury discussed the MAAC Video during deliberations, as the prosecutor acknowledged in the trial court while discussing with the court and defense counsel how the court should respond to one of the jury‘s questions: “The concern is the fact that they are bring[ing] up or talking about stuff that is not in evidence in this case . . . Because they are obviously talking about manslaughter, which is not in evidence or any charge in this case. They have one charge. . . Because . . . the issue of manslaughter, I mean, that came up only in the [MAAC] [V]ideo, which the Court instructed them not to consider . . . .” Further, the record unequivocally indicates that the jury viewed this as a close case. The jury asked for a readback of both Alvarez‘s testimony and Finally, the previous trial resulted in a hung jury on the murder charge. This, too, supports a finding of prejudice in light of the fact that the evidence presented at both trials was similar, with the significant exception that the videos were not shown at the first trial. (See, e.g., People v. Kelley (1967) 66 Cal.2d 232, 245 [57 Cal.Rptr. 363, 424 P.2d 947] [“Not only is the prejudicial nature of the erroneously admitted evidence obvious, but it is also the fact that at the first trial when such evidence was excluded the jury was unable to agree but at this trial when the evidence was admitted a unanimous verdict resulted. The two trials being otherwise substantially similar, such fact demonstrates almost to a certainty the prejudicial nature of the error.“].) We acknowledge, as the People argue in their brief, that the prosecution presented strong evidence of Diaz‘s guilt. Not only did the People present overwhelming evidence that Diaz drove extremely recklessly while having a very high blood-alcohol level, the People presented considerable other evidence, apart from the videos, that Diaz harbored implied malice. (See pt. III.A.4., ante.) However, in light of the overwhelming indicia of prejudice discussed above, we conclude that it is reasonably probable that Diaz would have received a more favorable result but for the trial court‘s error. B. Diaz‘s convictions on counts 3 and 4 are not precluded as lesser included offenses to count 2* . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Diaz‘s conviction on count 1, for murder, is reversed and his sentence is vacated. Diaz‘s convictions on counts 2 through 5 are affirmed. The People may retry Diaz on a charge of murder within the time limit set forth in In the event that the People elect not to retry Diaz on a charge of murder, the trial court shall resentence Diaz on counts 2 through 5. The trial court may conduct any necessary ancillary proceedings consistent with this opinion. Nares, Acting P. J., and McIntyre, J., concurred. *See footnote, ante, page 362.f. The MADD Video
2. Standard of review
3. Governing law
a. Evidence Code section 352
b. The admissibility of evidence to prove a defendant‘s awareness of the dangers of drinking and driving in establishing implied malice murder
4. The trial court erred in permitting the jury to view both the MAAC Video and the MADD Video
5. The error requires reversal
a. Standard of prejudice
b. Application
IV.
DISPOSITION