People v. Cross CA2/6

Filed 12/18/14 P. v. Cross CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. B253331 (Super. Ct. No. F482473) Plaintiff and Respondent, (Los Angeles County)

v.

JERAD SCOTT CROSS,

Defendant and Appellant.

Jerad Scott Cross appeals from the judgment entered after a jury convicted him of second degree murder (Pen. Code, §§ 187(a), 189); gross vehicular manslaughter while intoxicated (Id., § 191.5(a)); driving with a suspended license (Veh. Code, § 14601.1(a)); and possession of a pipe used for smoking a controlled substance. (Health & Saf. Code, § 11364.1.) Appellant was sentenced to prison for 15 years to life. The second degree murder conviction arose from a vehicular homicide and was based on an implied malice theory. Appellant contends that the evidence is insufficient to support the jury's finding of implied malice. He also contends that the trial court made several erroneous evidentiary rulings. We affirm. Prosecution Evidence At about 9:00 a.m. on a sunny day in November 2012, a flagman stopped traffic on a highway in a construction area. The flagman had a paddle with a stop sign on one side and "SLOW" on the other side. Several warning signs on the highway gave advance

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notice that road work was ahead and drivers should be prepared to stop. A tractor-trailer stopped and a Chevrolet pickup truck stopped behind it. A pickup truck driven by appellant did not stop. It did not even slow down. The flagman testified that appellant's truck "appeared to be going over the speed limit" of 55 miles per hour. In a vain effort to get appellant's attention, the flagman frantically waved his paddle back and forth. ~ Appellant's truck crashed into the rear of the Chevrolet. The force of the collision pushed the Chevrolet underneath the tractor-trailer. The driver of the Chevrolet died at the scene. Appellant broke his ankle. While transporting him to a hospital, paramedics found a glass pipe in his possession. Residue in the pipe tested positive for methamphetamine. At the hospital, appellant told a police officer that he had used the pipe to smoke methamphetamine. Appellant also said that between 4:00 and 5:00 that morning he had taken "oxycontin for pain management and Xanax for anxiety." Based on appellant's physical symptoms, the officer formed the opinion that he "was under the combined influence of a central nervous stimulant and a narcotic analgesic." The stimulant was methamphetamine. The narcotic analgesic was oxycontin. Appellant told a nurse that he was taking Xanax, marijuana, methamphetamine, and oxycodone. The parties stipulated that appellant's urine sample had tested "positive for opiates [oxycodone], benzodiazepines [Xanax], methamphetamine, and marijuana." They further stipulated that appellant's blood sample had tested negative for alcohol. A toxicologist testified that Xanax is an "antianxiety medication" and a "quite powerful" sleep aid. The Xanax level in appellant's blood was high - .22 milligrams per liter. The toxicologist opined that this Xanax level alone would make it unsafe to drive. One would have to take at least 20 milligrams of Xanax to reach this level unless one were using it in an unconventional way, "such as melting it down, shooting it up or snorting it after they've crushed the pills." Doctors typically start patients at a dose of .5 milligrams "and then gradually raise them up, but . . . it's recommended not to exceed ten milligrams in one day." If one were taking six milligrams per day, one's "steady state level" would be .06 milligrams per liter.