People v. Herrera CA2/6

Filed 3/16/26 P. v. Herrera CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

THE PEOPLE, 2d Crim. No. B337020 (Super. Ct. No. 21F-02028) Plaintiff and Respondent, (San Luis Obispo County)

v.

ERNESTO NAVA HERRERA,

Defendant and Appellant.

Ernesto Nava Herrera appeals his conviction, by jury, of the second degree murder of Jonathan Cruz, (Pen. Code, § 187, subd. (a)),1 gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a)), driving under the influence of alcohol (Veh. Code, § 23153, subd. (a)), driving with a blood alcohol content of over .08% (Veh. Code, § 20001, subd. (b)), leaving the scene of an accident (Veh. Code, § 20001, subd. (a)), and driving with a suspended or revoked license. (Veh. Code, § 14601.5, subd. (a).)

All statutory references are to the Penal Code unless 1

otherwise stated.

The trial court sentenced appellant to a term of 15 years to life plus six years, eight months in state prison. He contends the trial court erred because its instructions to the jury regarding implied malice murder did not require the jury to find the act he committed involved a high degree of probability that it would result in death. He further contends his conviction of murder must be reversed because there is no substantial evidence that he acted with implied malice. We affirm. Facts At about 11:00 p.m., appellant drove his Chevrolet Tahoe SUV the wrong way down the Tefft Street offramp onto the northbound 101 freeway in Nipomo. He almost immediately collided with a smaller SUV being driven by Jose Cruz, causing Cruz’s vehicle to roll over four or five times and eventually come to rest on its roof. Cruz’s 14-year-old son, Jonathan, had been wearing his seat belt and sitting in the back seat. Jonathan died from injuries he received in the collision. Cruz’s wife, who had been sitting in the front passenger seat and also wearing a seat belt, broke four ribs and her clavicle and dislocated vertebrae in her neck. Cruz himself sustained less serious injuries. Appellant’s vehicle came to a stop 50 to 75 yards to the south of the Cruz vehicle. When it was discovered by CHP Officer Tyler Henry, the driver’s side door was open and there was a small amount of blood on both the inside and outside of the door. The driver’s side air bag had deployed. Damage to the front passenger side of the vehicle included a buckled hood and an intrusion into the engine compartment. CHP officers found appellant about an hour later, with the help of a helicopter. He was lying flat on the ground off the right-hand shoulder of the southbound freeway, about 1 mile