People v. Thompson CA2/8
B334738
Cal. Ct. App.Jan 9, 2026Check TreatmentFiled 1/9/26 P. v. Thompson CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B334738
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA490264)
v.
RONNELL JAMAL THOMPSON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Mark K. Hanasono, Judge. Affirmed as
modified.
Theresa Osterman Stevenson, under appointment by the
Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews and Rama R. Maline,
Deputy Attorneys General, for Plaintiff and Respondent.
__________________________
Ronnell J. Thompson appeals from his conviction for
second-degree murder and gross vehicular manslaughter.
He raises four claims: First, that the trial court abused its
discretion by admitting blood alcohol toxicology results from his
diagnostic, rather than forensic, blood test. Second, that the
court incorrectly instructed the jury regarding implied malice as
is required for a murder conviction. Third, that the evidence was
insufficient to support second-degree murder. And fourth, that
he deserved additional presentence custody credits. We agree
that Thompson deserves an additional day of presentence custody
credits but otherwise affirm.
FACTS AND PROCEDURAL BACKGROUND
On October 19, 2019, Thompson’s car collided with Diane
Wilson Yeboah’s van near the 48th Street and Western Avenue
intersection in Los Angeles. Thompson drove between 88 and
92.6 mph in a 35-mph zone seconds before the collision, slowed
down to between 60 and 73 mph at the point of the collision, and
had a blood alcohol content (BAC) between 0.131 and 0.149.
Yeboah died four days later from injuries sustained during the
collision. The Los Angeles County District Attorney then charged
Thompson with murder (Pen. Code, § 187, subd. (a)),1 gross
vehicular manslaughter while intoxicated (§ 191.5, subd. (a)),
driving under the influence of alcohol and driving with a .08
percent BAC, both causing injury within 10 years of another
DUI offense (Veh. Code, § 23153, subd. (a)).
Thompson moved pretrial to suppress his toxicology results
on the grounds that the evidence was not sufficiently reliable
under People v. Williams (2002) 28 Cal.4th 408 (Williams).
1 Further undesignated statutory references are to the Penal
Code.
2
The court held an evidentiary hearing and denied the motion,
finding Thompson’s argument to be “more properly the subject of
a motion to exclude evidence . . . pursuant to Evidence Code
[section] 402, rather than a motion to suppress evidence[.]”
Thompson then filed a motion in limine pursuant to
Evidence Code section 402 to exclude his toxicology results.
The defense argued that the prosecution could not identify who
drew Thompson’s blood, which meant the blood draw was
unreliable, there was no chain of custody for the blood sample,
and the prosecution could not establish the foundational
requirements to admit the blood test results under Williams.
The defense did not cite or argue that the evidence should have
been excluded under People v. Kelly (1976) 17 Cal.3d 24 (Kelly).
The court held an evidentiary hearing, discussed in more detail
below, and denied the motion.
The case proceeded to trial, and the trial evidence
established the following. Thompson had been convicted of a
previous misdemeanor DUI in 2016. The court there admonished
Thompson that he could be charged with murder if he continued
to drive under the influence of alcohol and caused someone’s
death, as required by People v. Watson (1981) 30 Cal.3d 290
(Watson). Thompson’s sentence included participation in both an
alcohol and drug program and a victim impact program from
Mothers Against Drunk Driving. Both programs included
Watson admonishments. Thompson was again arrested for
driving under the influence in June 2019.2 After the June 2019
arrest, his license was suspended.
2 Thompson was convicted for driving under the influence for
the June 2019 incident, but that conviction occurred after this
collision in October 2019.
3
On the date of the collision, Thompson was driving a
borrowed car. Meanwhile, Yeboah had picked up her grandson
from Ed’s Market where he worked as a cashier to drive him
home. As Yeboah exited the employee parking lot through an
alley, she either stopped or slowed as she approached to make a
left on to Western Avenue. As Yeboah’s van entered Western
Avenue, Thompson’s car collided with the van, and the van was
then hit by another car. The crash occurred around 8:20 p.m.
Yeboah died four days later, and her grandson sustained injuries
from the crash.
Thompson was taken to the hospital and had his blood
drawn. The nurse that drew Thompson’s blood at the hospital
did not testify. Instead, the Director of Nursing and Emergency
Services at the hospital testified that registered nurses ordinarily
drew blood from trauma patients. She also testified to the
training and qualifications such nurses received, how registered
nurses draw blood from trauma patients, and how blood samples
are labeled to ensure they match the correct patient.
The hospital ordered an ethanol (alcohol) test on
Thompson’s blood at 9:09 p.m. Thompson’s blood was then sent
to the hospital’s internal diagnostic laboratory. The laboratory
scientist that performed the analysis did not testify. Instead, the
hospital’s lab director testified to the licensure, training, and
qualifications of the lab personnel. He also testified about how
an ethanol test is performed: First, the certified laboratory
scientist (CLS) verifies the label to ensure it matches the test
order. Second, the CLS places the blood sample vial into a
centrifuge that spins the sample to separate the serum (or
plasma) from the whole blood sample because the lab’s testing
machine analyzes blood serum not whole blood. Third, the CLS
4
places the vial into the testing machine and presses a button.
The machine then records the intensity of light emitting from an
enzymatic reaction on the serum and uploads the results to the
patient’s medical record. The lab director also testified that the
lab conducts daily maintenance on the machine, calibrates the
machine, and maintains its licensing as a diagnostic lab.
Thompson’s blood serum had 0.164 grams of ethanol per
deciliter. The hospital destroyed Thompson’s blood sample before
it could be tested by a forensic lab. Los Angeles Police
Department (LAPD) Criminalist Mandel Medina testified about
how to convert that serum result into a whole blood result,
because serum contains a higher concentration of alcohol than
whole blood. Using a conversion ratio of 1.10 to 1.25, he testified
that Thompson’s whole BAC range was 0.131 to 0.149 grams per
deciliter, which was over the legal limit of 0.08 grams per
deciliter. Medina further testified to his opinion that all drivers
with a BAC of 0.08 and above are “too impaired to operate a
motor vehicle safely.”
Yeboah’s blood was collected at the hospital and later
tested at LAPD’s forensic department following her death.
LAPD’s certified forensic lab tested her whole blood for ethanol
using a forensically approved gas chromatography test. She had
a BAC of 0.108 grams per deciliter and a THC level of 0.14
nanograms per milliliter.
LAPD Investigator Brandon Jeon conducted a crash
reconstruction. The investigation used the data stored in the
event data recorder module of Thompson’s car to help determine
speed. The data showed that Thompson reached speeds of 88-92
mph roughly four seconds prior to the crash. The data also
showed that Thompson’s car braked at 3.2, 2.7, and 1.2 seconds
5
prior to the collision, and there was a sharp turn of the steering
wheel to the left during the second braking maneuver. Finally,
the data showed Thompson drove between 60 and 73 mph at the
time of the collision. Jeon opined that speed unsafe for the
conditions and violating the speed limit were the primary
collision factors. Previously, LAPD Officer Adam Phillippi
conducted a traffic investigation on the night of the collision.
His report concluded that Yeboah’s failure to yield to oncoming
traffic was a primary cause of the collision, and Thompson’s
speed was a significant associated factor. Phillippi did not know
the speeds of the vehicles when he prepared his report, and he
testified that excessive speed would have been the primary cause
of the collision had he known Thompson drove over 88 mph in a
35 mph zone. Similarly, he testified that had he known
Thompson was under the influence at the time of the collision,
he would have concluded that played “a very significant role in
the collision.”
The defense called two witnesses. The defense’s accident
reconstructionist agreed this was a high-speed impact and that
Thompson exceeded the speed limit. He nonetheless opined that
Yeboah was at fault for failing to yield to oncoming traffic.
The defense’s forensic toxicologist testified that hospital
labs use enzymatic testing of blood serum to screen for the
presence of ethanol but those tests cannot give a definitive
answer about the alcohol concentration in the blood. He testified
that forensic toxicologists apply a conversion factor range of 1.18
to 1.21 to convert serum alcohol levels to whole blood alcohol
levels, and that he uses the 1.18 conversion factor. Forensic labs,
on the other hand, use gas chromatography with a flame
ionization detector to detect ethanol levels in whole blood
6
samples. The results from that test are more reliable and
accepted in the scientific community.
The defense toxicologist testified that in this case, a
hospital diagnostic lab analyzed Thompson’s blood, not a forensic
lab. He also testified that he learned hospital staff had cleaned
the blood draw site with alcohol contrary to forensic standards.
He opined that Thompson’s blood test results were unreliable for
forensic purposes.
He further testified that failing to yield with a BAC of
0.108 percent and a THC concentration of 14ng/nl reflected
impaired driving. He believed that applying the brakes upon
seeing an obstruction in the road and turning the steering wheel
in an evasive maneuver reflected some level of reactive driving,
but acknowledged that a person with a BAC of 0.13 would be
impaired.
The jury convicted Thompson of second-degree murder and
gross vehicular manslaughter while intoxicated. The jury also
found three special allegations were true for the manslaughter
conviction: (1) the offense involved great violence, great bodily
harm, the threat of great bodily harm, or other acts disclosing a
high degree of cruelty, viciousness, or callousness; (2) Thompson
engaged in violent conduct that indicated a serious danger to
society; and (3) Thompson knew his license had been suspended
but drove a car while committing the offense. The court
sentenced Thompson to 15 years to life on the murder and stayed
the sentence on gross vehicular manslaughter pursuant to section
654, which prohibits dual punishments for the same act. (See
People v. Hester (2000) 22 Cal.4th 290, 294 [“Section 654
precludes multiple punishments for a single act or indivisible
course of conduct.”].)
7
Thompson timely appealed.
DISCUSSION
I. The Trial Court Acted Within Its Discretion When It
Admitted Thompson’s Toxicology Results
Thompson argues the trial court abused its discretion by
admitting the hospital’s serum blood test results and criminalist’s
conversion of those results to whole blood because both lacked
sufficient reliability. We disagree.
We review a trial court’s ruling to admit evidence for abuse
of discretion. (People v. Goldsmith (2014) 59 Cal.4th 258, 266.) “ ‘ “ ‘The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason.’ ” ’ ” (People v. Stuart (2007)156 Cal.App.4th 165, 179
, quoting In re Stephanie M. (1994)7 Cal.4th 295, 318-319
.) To admit testing results, the proponent of the evidence must show “(1) the reliability of the instrument, (2) the proper administration of the test, and (3) the competence of the operator.” (Williams, supra,28 Cal.4th at p. 414
, citing People v. Adams (1976)59 Cal.App.3d 559, 567
.)
“To meet these requirements, the evidence would be admitted
upon either a showing of compliance with the title 17 regulations
or independent proof of the three elements.” (Ibid., italics added.)
Contrary to Thompson’s argument, compliance with title 17
regulations is not required if the proponent of the evidence
otherwise satisfies the criteria identified above.
At the pretrial motion in limine hearing, the prosecution
did not call the nurse who drew Thompson’s blood or the CLS
who placed the blood sample into the hospital’s testing machine.
Instead, the prosecution called three witnesses: the hospital’s
Director of Nursing and Emergency Services, the hospital’s lab
director, and an LAPD criminalist. The nursing director testified
8
that only registered nurses draw blood from patients on the
trauma team. She could not determine from Thompson’s medical
records who had drawn Thompson’s blood the night of the
collision. She testified to how registered nurses are trained and
hired, how blood is typically drawn from trauma patients, and
how the blood sample is then sent to the hospital’s lab (either by
a pneumatic tube or hand delivered by a trauma team member).
She also testified that nurses would ordinarily cleanse the area
before drawing blood using isopropyl alcohol, chlorhexidine, or an
iodine solution.
The hospital’s lab director testified that the operators of his
lab’s testing machines are all state CLS who are trained in the
specific machines they operate. The lab uses an FDA-approved
instrument widely used by clinical laboratories to test for
ethanol. The machine measures ethanol levels in blood serum,
not whole blood, by a colorimetric enzymatic reaction once the
sample has been loaded into the machine; it does not require
manipulation by the lab technician. He testified that the CLS
receives a blood sample, verifies the labeling on the sample is
correct, loads the sample into the machine, and presses the start
button. From there, the testing machine is automated and
reports the results to the patient’s records. He also testified to
daily quality control measures, that the machine will not report a
result if it fails those measures, and about monthly calibrations
run on the machine.
The LAPD criminalist testified that BAC can be
determined from either a whole blood or a serum test. She
testified that the result from a blood serum test could be
converted to a whole blood range. She utilizes a conversion factor
of 1.1 to 1.125, which is backed by peer-reviewed scientific
9
literature, to make such a conversion. Using that conversion
method, she testified that Thompson’s blood serum result of 0.164
grams per deciliter converts to a whole blood range of 0.131 to
0.149.
The defense called a forensic toxicologist at the motion in
limine hearing. He testified that the hospital’s clinical screening
test leads to an extreme number of false positives. He described
the hospital’s testing methodology as a screening test that is not
sufficiently reliable for legal proceedings. He also testified that
there is no standard conversion from serum to whole blood.
The trial court determined that the prosecution met its
burden under Williams and Adams to admit the blood test
results. The court found the operators were competent: a
registered nurse performed the blood draw pursuant to hospital
protocol, and a CLS trained to use the testing machine performed
the analysis. The hospital’s testing machine was reliable: the lab
performed quality control measures, testing, maintenance, and
calibration on the machine. If the machine malfunctions, it sends
an error code and stops running the test. No evidence
established that the machine was malfunctioning. Finally, the
test was properly administered: the machine was largely
automated without room for human error, accepted by the
scientific or medical community as a reliable method to test blood
alcohol levels, and FDA approved and widely used by clinical
laboratories.
The court also noted that Thompson’s concerns that the use
of isopropyl alcohol could affect the testing go to “the weight of
the evidence but [do] not preclude its admission.”
10
We find the court acted within its discretion when it found
the prosecution met the foundational requirements of Williams
and Adams. Neither Williams nor Adams limits how the
prosecution can meet its evidentiary burden nor requires that the
operators must themselves testify. The trial court properly
exercised its discretion to consider the testimony of the hospital’s
nursing director and lab director to establish the competence of
the nurse who performed the blood draw and the CLS who
operated the testing machine. Finally, the trial court acted
within its discretion in accepting the reliability of the colorimetric
blood serum test over the defense witness’s contrary testimony.
(People v. Butcher (2016) 247 Cal.App.4th 310, 318 [“we do not
reweigh conflicting evidence or determine credibility on
appeal.”].)
This case is thus unlike People v. Kocontes (2022) 86
Cal.App.5th 787 (Kocontes), on which Thompson relies. In
Kocontes, the trial court admitted evidence of a victim’s blood test
based on testimony from a witness who “reviewed the results and
stated the testing had been performed in accordance with his
training.” (Id. at p. 861.) The appellate court found this was
insufficient evidence to support the foundational requirements of
Williams, noting the lack of testimony to establish the “machine
was functioning properly, the chemist was qualified to operate
the machine, and the chemist properly performed the test.”
(Kocontes, at p. 863.) Here, the court heard testimony to
establish each of these foundational requirements, and we find no
abuse of discretion.
To the extent Thompson raises a claim that the blood test
result and conversion should have been excluded under Kelly,
supra,17 Cal.3d 24
, we find that issue waived because Thompson
11
failed to raise a Kelly objection in the trial court. (People v.
Ochoa (1998) 19 Cal.4th 353, 414[“Having failed to object on Kelly[] grounds to the admission of the evidence . . . , defendant has not preserved his claim.”]; People v. Diaz (1992)3 Cal.4th 495, 527-528
[same].)
At trial, the prosecution’s criminalist testified to the
applicable conversion factor. Thompson did not object to that
conversion testimony at trial, nor did his pretrial motion in
limine challenge the conversion factor. The defense expert then
testified to a similar conversion factor, but notably the defense’s
conversion factor would have resulted in a higher BAC than the
prosecution’s low-end of the range.
In any event, neither the blood serum test nor the
conversion to BAC are new scientific methods subject to Kelly.
(See People v. Davis (2022) 75 Cal.App.5th 694, 711 [Kelly test
applies only to new scientific techniques].) Indeed, Thompson’s
own expert testified regarding a serum to BAC conversion factor
at trial.
On appeal, Thompson relies on out-of-state authority to
argue that other jurisdictions do not generally accept serum
testing and conversion to BAC. However, Thompson’s authority
actually establishes that serum testing is acceptable once
converted. (See State v. Cardwell (N.C. Ct.App. 1999) 516 S.E.2d
388, 396[serum testing and conversion acceptable] People v. Thoman (Ill. Ct.App. 2002)770 N.E.2d 228, 231
[conversion factor of serum testing would have been acceptable]; Commonwealth v. Haight (Pa. 2012)50 A.3d 137, 143
[trial court made appropriate conversion to calculate alcohol content in whole blood sample]; Commonwealth v. Newsome (Pa. 2001)787 A.2d 1045, 1049
[serum testing and conversion acceptable].)
12
Out of state appellate courts overturned the admission of
blood alcohol testing only when the serum testing result was
presented to the jury without expert testimony converting that
result to whole blood. (E.g. Newcomb v. State (Ind. Ct.App. 2001)
758 N.E.2d 69, 72 [conviction for driving with BAC of at least
0.10 percent reversed where prosecution presented no expert
testimony converting blood serum figures to whole BAC].)
Thompson has not met his burden to establish the serum testing
and conversion should have been excluded under Kelly.
II. The Trial Court Properly Instructed the Jury on
Implied Malice
Next, Thompson contends that the trial court incorrectly
instructed the jury on the implied malice requirement for second-
degree murder because after his conviction, the California
Supreme Court altered the definition of implied malice in People
v. Reyes (2023) 14 Cal.5th 981(Reyes). In Reyes, decided three months after Thompson’s conviction, the Supreme Court concluded that “[t]o suffice for implied malice murder, the defendant’s act must not merely be dangerous to life in some vague or speculative sense; it must ‘ “involve[] a high degree of probability that it will result in death.” ’ ” (Id. at p. 989, quoting People v. Knoller (2007)41 Cal.4th 139, 152
.) Thompson thus
contends the trial court’s instruction was erroneous.
As a threshold matter, the People argue that Thompson
forfeited this challenge because he failed to object at trial.
We find that Thompson did not forfeit his challenge because he
contends the instruction incorrectly stated the law. (People v.
Hudson (2006) 38 Cal.4th 1002, 1012 [forfeiture rule does not
apply when “the trial court gives an instruction that is an
incorrect statement of the law.”].) Thus, we consider Thompson’s
13
challenge to the instruction, and we review de novo whether a
jury instruction accurately describes the law. (People v. Ramirez
(2023) 98 Cal.App.5th 175, 218.)
The trial court instructed the jury on the implied malice
component of second-degree murder pursuant to the then-
applicable standard instruction CALCRIM No. 520.3 In relevant
part, the instruction stated that Thompson must have
intentionally committed an act, the natural and probable
consequences of the act were dangerous to human life, Thompson
3 The trial court instructed the jury as follows: “The
defendant is charged in Count 1 with murder in violation of
Penal Code section 187(a). To prove that the defendant is guilty
of this crime, the People must prove that: Number 1, the
defendant committed an act that caused the death of another
person. And Number 2, when the defendant acted he had a state
of mind called malice aforethought. . . . The defendant had
implied malice if: Number 1, he intentionally committed the act;
Number 2, the natural and probable consequences of the act were
dangerous to human life; Number 3, at the time he acted, he
knew his act was dangerous to human life; and Number 4, he
deliberately acted with conscious disregard for human life.
Malice aforethought does not require hatred or ill will toward the
victim. It is a mental state that must be formed before the act
that causes death is committed. It does not require deliberation
or the passage of any particular period of time. An act causes
death if the death is the direct, natural, and probable
consequence of the act and the death would not have happened
without the act. A natural and probable consequence is one that
a reasonable person would know is likely to happen if nothing
unusual intervenes. In deciding whether a consequence is
natural and probable, consider all of the circumstances
established by the evidence. . . . If you find the defendant guilty of
murder, it is murder of the second degree.”
14
knew at the time that the act was dangerous to human life, and
Thompson deliberately acted with conscious disregard for human
life. In March 2024, the Judicial Council modified CALCRIM
No. 520 after Reyes. The standard instruction on implied malice
now states that the defendant intentionally committed an act, the
natural and probable consequences of the act were dangerous to
human life in that the act involved a high degree of probability
that it would result in death, at the time the defendant acted he
knew his act was dangerous to human life, and he deliberately
acted with conscious disregard for human life. (CALCRIM
No. 520 (2025 edition).)
After briefing was completed here, our colleagues in the
Fifth District considered the same challenge and determined that
the prior instruction on implied malice remains legally correct.
(People v. Pierce (2025) 114 Cal.App.5th 508 (Pierce).) We invited
the parties to file supplemental briefing in response to Pierce, and
each did.
In Pierce, the Court of Appeal determined that “Reyes did
not involve jury instructions or hold that trial courts must
instruct that the act required to support a finding of implied
malice must involve a high probability that death will result.”
(Pierce, supra, 114 Cal.App.5th at p. 535.) The court also
concluded that “Reyes reaffirmed a long line of cases holding that
the Thomas [act involves a high degree of probability that it will
result in death] and Phillips [natural and probable consequences
of the act are dangerous to life] tests articulate the same
standard.” (Pierce, at p. 535.)
Further, the court noted that prior Supreme Court
precedent in People v. Nieto Benitez (1992) 4 Cal.4th 91 (Nieto
Benitez) had considered a similar challenge to an implied malice
15
jury instruction. As here, the challenged instruction in Nieto
Benitez did not include the requirement that the defendant act
“with a high probability that death will result.” (Id. at p. 111.)
The Supreme Court rejected the challenge, holding that the given
instruction “ ‘correctly distills the applicable case law’ ” regarding
implied malice murder without including that language.
(Pierce, supra, 114 Cal.App.5th at p. 535, quoting Nieto Benitez,
at p. 111.) “ ‘[T]he two linguistic formulations—“an act, the
natural consequences of which are dangerous to life” and “an act
[committed] with a high probability that it will result in death”
are equivalent and are intended to embody the same standard.’ ”
(Pierce, at p. 535.)
The Pierce court highlighted that Reyes neither overruled
Nieto Benitez nor confronted an instructional issue. (Pierce,
supra, 114 Cal.App.5th at pp. 535-536.) “Because Reyes did not
decide an instructional issue and did not overrule or disapprove
of the high court’s prior cases, we are bound by its decision in
Nieto Benitez.” (Pierce, at p. 536.) While changes made to the
standard instruction now incorporate Reyes’s language, the prior
instruction “remains a correct statement of law.” (Pierce, at
p. 536.)
We agree with the Pierce court’s analysis of Reyes and Nieto
Benitez. Reyes dealt with a resentencing petition, not a jury
instruction, and did not overrule Nieto Benitez expressly or
implicitly. Reyes did not hold that the standard instruction given
at Thompson’s trial misstated the law of implied malice.
Thus, we find no legal error in the instruction given at
Thompson’s trial.
16
III. The Evidence Was Sufficient to Convict Thompson of
Second-Degree Murder
Thompson next argues that the record contains insufficient
evidence to support a finding that he acted with implied malice.
We disagree.
“ ‘When considering a challenge to the sufficiency of the
evidence to support a conviction, we review the entire record in
the light most favorable to the judgment to determine whether it
contains substantial evidence—that is, evidence that is
reasonable, credible, and of solid value—from which a reasonable
trier of fact could find the defendant guilty beyond a reasonable
doubt.’ ” (People v. Hin (2025) 17 Cal.5th 401, 451.) “[W]e ‘view the evidence in the light most favorable to the jury verdict and presume the existence of every fact that the jury could reasonably have deduced from that evidence.’ ” (People v. Navarro (2021)12 Cal.5th 285
, 302, quoting People v. Reed (2018)4 Cal.5th 989, 1006
.) We do not reweigh the evidence or resolve testimonial conflicts at this stage. (People v. Young (2005)34 Cal.4th 1149, 1181
.) We reverse a conviction only if “ ‘ “it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support’ ” the jury’s verdict.’ ” (People v. Lattin (2024)107 Cal.App.5th 596
, 621, quoting People v. Zamudio (2008)43 Cal.4th 327, 357
.)
Second-degree murder is the unlawful killing of a human
being with malice aforethought. (§§ 187, subd. (a), 189,
subd. (b).) Implied malice contains “an objective component
(an intentional act endangering the life of another), and a
subjective component (knowledge and disregard of the danger).”
(Pierce, supra, 114 Cal.App.5th at p. 523.) After the Supreme
Court held that a defendant who drove under the influence and
17
caused another’s death could be charged with second degree
murder over forty years ago in Watson, appellate courts have
upheld these convictions under a “case-by-case” approach.
(People v. Superior Court (2010) 183 Cal.App.4th 690, 698.) “ ‘Generally, these opinions “have relied on some or all of the following factors’ that were present in Watson: (1) blood-alcohol level above the .08 percent legal limit; (2) a predrinking intent to drive; (3) knowledge of the hazards of driving while intoxicated; and (4) highly dangerous driving.” ’ ” (Pierce, at p. 524, quoting People v. Wolfe (2018)20 Cal.App.5th 673, 682-683
(Wolfe).)
Thompson initially incorporates his instructional error
argument to contend that the jury could not have found the
objective component satisfied. We have already rejected that
argument. Further, we find that sufficient evidence supports the
objective component of implied malice. Thompson drove with a
BAC level between 0.13 and 0.14 percent. He exceeded 90 mph in
a 35-mph zone, and thus covered the almost 600 feet before the
collision in less than half the time it would take a vehicle
traveling 35 miles per hour. Even though Thompson slowed
down, braked, and turned the steering wheel before the collision,
his average speed was still 84 mph during the five seconds before
the crash. That meant Yeboah had less time to assess
Thompson’s incoming speed and to make her turn, and there was
testimony that the collision would not have happened had
Thompson averaged even double the speed limit at 70 mph
during that period. Thus, the evidence presented was sufficient
to satisfy the objective component of implied malice, and we find
no error.
18
Sufficient evidence similarly supports the subjective
component of implied malice. Thompson had a prior
misdemeanor DUI conviction and was arrested for another DUI
just four months before this collision. He received Watson
warnings of the dangers of driving under the influence and the
potential murder charge should he do so again from the judge
and during his court-ordered programming as part of his prior
sentence. (See Wolfe, supra, 20 Cal.App.5th at p. 683 [receiving
Watson warnings allows jury to infer subjective “aware[ness] of
the possible lethal consequences of driving under the influence of
alcohol.”].) He was also driving with a suspended license at the
time of this collision.
Further, the fact that Thompson braked just prior to the
accident and jerked the steering wheel to the left showed he was
actually aware in the moment of the risk of harm his driving
created. (See Pierce, supra, 114 Cal.App.5th at p. 532 [“our
Supreme Court has held that braking immediately prior to a
collision may suggest actual awareness of the risk of harm
created by a defendant’s dangerous driving.”].) There was
sufficient evidence for the jury to determine that Thompson was
subjectively aware his driving was dangerous to the lives of
others on the road and he deliberately acted with conscious
disregard for their lives.
Thus, we reject Thompson’s argument that insufficient
evidence supports the jury’s finding of implied malice.
IV. The Trial Court Must Correct the Judgment and
Abstract of Conviction to Reflect Thompson’s
Presentence Credits
Finally, Thompson contends that the parties miscalculated
his presentence credits by a day. The People concede error, and
19
we agree. Thompson’s presentence credits should have included
both the date of his arrest and of his sentencing hearing.
(§ 2900.5, subd. (a); People v. Rajanayagam (2012) 211
Cal.App.4th 42, 48 [“Calculation of custody credit begins on the
day of arrest and continues through the day of sentencing.”].)
We thus direct the trial court to modify the abstract of judgment
accordingly.
DISPOSITION
The judgment is modified to give Thompson an additional
day of presentence custody credit, for a total of 1,114 days.
The trial court is directed to amend the abstract of judgment
accordingly and forward a copy to the Department of Corrections
and Rehabilitation. As modified, the judgment is affirmed.
UZCATEGUI, J.*
We Concur:
STRATTON, P. J.
VIRAMONTES, J.
* Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
20