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March 16, 2026 Get Citation Alerts Download PDF Add Note

People v. Herrera CA2/6

California Court of Appeal

• Citations: None known
• Docket Number: B337020

• Precedential Status: Non-Precedential

• Opinion

• Authorities (14)

• Cited By (0)

• Summaries (0)

• Similar Cases (0)

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Combined Opinion

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

2
from the site of the collision. Appellant showed signs of
intoxication and failed field sobriety tests. Nearly two hours
after the collision, preliminary alcohol screening tests showed
appellant had a blood alcohol content of .16 and .164. A blood
draw taken almost two hours later showed appellant had a blood
alcohol content of .157 percent.
The CHP officers communicated with appellant in
Spanish. Appellant complied with their verbal orders and said he
understood the field sobriety test instructions. He never said he
did not speak Spanish or that he was a Mixteco speaker. The
officers believed appellant spoke and understood Spanish.
While Officer Alex Banks investigated the collision,
he noticed a trail of fluid leading away from the collision up the
freeway offramp and onto Tefft Street. Banks also noticed that a
puddle of fluid had formed on the street. He concluded it was
possible that one of the vehicles in the freeway collision had been
involved in another collision earlier that evening.
That same night, the owner of an agricultural
property on Mehlschau Road in Nipomo noticed that a vehicle
had crashed into a fence and some trees on his property, next to
the road. Surveillance video showed five or six people helping to
pull a truck away from the area of the damage and toward the
road. The property owner gathered debris from the collision,
including headlights and part of a bumper. A CHP officer later
determined that the headlight was compatible with a Chevrolet
Tahoe SUV.
Officer Banks learned about this incident the next
day. He investigated the site and was able to follow a trail of
fluid all the way from the site of the incident to the Tefft Street
freeway offramp. In several locations, Officer Banks noticed

3
pools of fluid had formed, indicating the vehicle came to a stop
there for at least some period of time.
Security video from a gas station near the freeway
offramp shows a Chevrolet Tahoe SUV travel westbound on Tefft
Street toward the freeway, stop and then make a lefthand turn
onto the freeway offramp traveling in the wrong direction. The
Tahoe then travels out of the frame of the video camera.
An inspection of the Tahoe after the collision showed
spots of brown paint transfer on various parts of the front of the
vehicle. This paint was consistent with the fence posts at the
Mehlschau Road property. An invitation to a party on Mehlschau
Road was found inside the Tahoe along with a bank deposit or
money transfer slip with appellant’s name on it. DMV records
named appellant as the owner of the Tahoe. The vehicle had a
fluid leak in an inlet line located just above the front bumper on
the right side. This leak did not affect the functionality of the
Tahoe and could have been caused during the collision on
Mehlschau Road.
About four months before the collision with the Cruz
vehicle, appellant was arrested for DUI. The record does not
disclose whether appellant was prosecuted or convicted of any
offense. In connection with that arrest, however, the arresting
officer gave appellant the Watson advisement2, in Spanish, that
“‘Driving under the influence [of alcohol] is extremely dangerous.’
. . . ‘If you continue to drive while under the influence of alcohol
or drugs or a combination of both, and as a result of your driving
or involvement in a crash and an accident and you kill somebody,
you can be charged with murder.’” After receiving the

2 People v. Watson (1981) 30 Cal.3d 290 (Watson).

4
advisement, appellant told the arresting officer that he
understood.
Contentions
Appellant contends the trial court erred in its
instructions to the jury because it did not inform the jury that, to
support an implied malice murder conviction, appellant must
have committed an act that involved a high degree of probability
that it would result in death. He further contends there is no
substantial evidence that he actually and subjectively
appreciated the dangerousness of his act or that he acted with
conscious disregard of that danger. In this regard, appellant
contends the prior Watson advisement is not sufficient because it
was given in Spanish and he is a native Mixteco speaker.
Finally, appellant contends the cumulative effect of these errors
was prejudicial.
Standard of Review
We review de novo the question whether the trial
court erred in its instructions to the jury. (People v. Parker
(2022) 13 Cal.5th 1, 66; People v. Waidla (2000) 22 Cal.4th 690,
733.) We review the question whether there is sufficient evidence
appellant acted with implied malice under the familiar
substantial evidence standard of review. This requires us to
“‘review the whole record to determine whether any rational trier
of fact could have found the essential elements of the crime . . .
beyond a reasonable doubt. . . .’” (People v. Manibusan (2013) 58
Cal.4th 40, 87, quoting People v. Zamudio (2008) 43 Cal.4th 327,
357.) In doing so, we “‘review the evidence in the light most
favorable to the prosecution and presume in support of the
judgment the existence of every fact the jury could reasonably
have deduced from the evidence. . . .’” (Ibid.)

5
Discussion
Instructional Error. The trial court instructed the
jury in terms of CALCRIM No. 520, that murder requires the
People to prove: “1. The defendant committed an act that caused
the death of another person; AND 2. When the defendant acted
he had a state of mind called malice aforethought.” As relevant
here, the instruction further informed the jury that it could find
appellant acted with implied malice if, “1. He intentionally
committed the act; 2. The natural and probable consequences of
the act were dangerous to human life; 3. At the time he acted, he
knew his act was dangerous to human life; AND 4. He
deliberately acted with conscious disregard for human life.”
About one month after the trial in this matter, in
light of our Supreme Court’s decision in People v. Reyes (2023) 14
Cal.5th 981 (Reyes), CALCRIM No. 520 was modified to state,
“An [act/[or] failure to act] is dangerous to human life if it
involved a high degree of probability that it would result in
death.” Appellant contends the trial court erred because its
instructions to the jury did not refer to the “high degree of
probability” language that is now included in the pattern
instruction. We disagree.
Our Supreme Court stated in Reyes that, “Murder is
committed with implied malice when ‘the killing is proximately
caused by “‘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.’”’” (Reyes, supra,
14 Cal.5th at p. 988, quoting People v. Knoller (2007) 41 Cal.4th
139, 143 (Knoller).) The act causing death “must not merely be
dangerous to life in some vague or speculative sense; it must

6
‘“involve[] a high degree of probability that it will result in
death.”’” (Reyes, at p. 989, quoting Knoller, at p. 152.)
Historically, implied malice has been defined in two
ways. Some courts held that an act is committed with implied
malice when it “‘involves a high degree of probability that it will
result in death.’” (People v. Nieto Benitez (1992) 4 Cal.4th 91,
103-104.) Others held that an act is committed with implied
malice where “‘“the natural consequences of [the act] are
dangerous to life . . . .”’” (Id. at p. 104.) Nieto Benitez concluded
these two formulations “actually articulated one and the same
standard.” (Ibid.) “[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.” (Id. at p. 111.)
Reyes is not to the contrary. There, our Supreme
Court held that a section 1172.6 petition for resentencing should
have been granted because there was insufficient evidence the
defendant acted with implied malice when he traveled to rival
gang territory with other gang members. The court concluded
this conduct did not “by itself give rise to a high degree of
probability that death will result.” (Reyes, supra, 14 Cal.5th at p.
989.) Reyes did not involve a claim of instructional error, did not
disapprove Nieto Benitez and did not discuss the many opinions
holding that “high probability of death” and “natural
consequences dangerous to life” describe the same standard of
implied malice. (See, e.g., Knoller, supra, 41 Cal.4th at p. 152;
People v. Dellinger (1989) 49 Cal.3d 1212, 1219; Watson, supra,
30 Cal.3d at p. 300.) Because the two standards of implied malice

7
are equivalent, the trial court had no duty to instruct with the
“high probability” formulation. There was no error.
Substantial Evidence. Appellant contends there is no
substantial evidence he acted with implied malice because there
is no evidence he was subjectively aware that his actions involved
a high probability of death or that he acted with conscious
disregard for human life. We disagree.
Watson, supra, 30 Cal.3d 290 held that a person
driving while intoxicated could be charged with second degree
murder, as opposed to vehicular manslaughter, where there was
evidence the driver actually appreciated the risk involved in
driving while intoxicated and acted with conscious disregard of
that risk. (Id. at pp. 296-297.) Thereafter, numerous cases have
upheld murder convictions where the defendant drove while
intoxicated. “A person who, knowing the hazards of drunk
driving, drives a vehicle while intoxicated and proximately causes
the death of another may be convicted of second degree murder
under an implied malice theory.” (People v. Batchelor (2014) 229
Cal.App.4th 1102, 1112, disapproved on other grounds in People
v. Hicks (2017) 4 Cal.5th 203, 214.) These cases all rely “upon
some or all of the following factors in upholding drunk-driving-
murder convictions: (1) a 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.” (People v. Talamantes (1992) 11
Cal.App.4th 968, 973.)
There is no prescribed formula for determining
whether a specific instance of driving while intoxicated is
egregious enough to demonstrate implied malice for purposes of a
murder conviction. (People v. Olivas (1985) 172 Cal.App.3d 984,

8
989.) Instead, “[t]he question of implied malice is to be decided in
light of all the circumstances.” (People v. Moore (2010) 187
Cal.App.4th 937, 942.) The circumstances of this collision would
allow a rational trier of fact reasonably to conclude that appellant
acted with implied malice.
Appellant concedes there is substantial evidence of
the first two Watson factors. His blood alcohol content,
preliminarily measured at .16 and .164, was well over the legal
limit. Appellant’s conduct also disclosed a pre-drinking intent to
drive. He left home in a car to attend a party, knowing he would
later drive home. After the party, appellant chose to continue
driving even though he damaged his SUV by crashing it into a
fence and some trees.
There is also substantial evidence of the third and
fourth factors. To begin with, the dangers of drunk driving are
obvious and well known. Four decades ago, the Watson court
noted that, “It may be presumed that [the driver] was aware of
the hazards of driving while intoxicated.” (Watson, supra, 30
Cal.3d at p. 300.) People v. Brogna (1988) 202 Cal.App.3d 700,
correctly described drunk driving as “inherently dangerous” and
noted that this “simple fact has been made well known to all
segments of our society through virtually every form of mass
media.” (Id. at p. 709.)
In addition, appellant was arrested for driving under
the influence only three months before this collision. During that
incident, he was given a Watson advisement expressly warning
that driving while intoxicated is extremely dangerous and could
result in a murder charge. Appellant claims he did not
understand the advisement because it was given to him in
Spanish, and not in his first language, Mixteco. The arresting

9
officer testified, however, that appellant appeared to understand
the advisement. In addition, appellant complied with the
Spanish-language commands he received as field sobriety tests
were administered during both arrests. A rational trier of fact
could reasonably find that appellant understood the advisement
and was subjectively aware of the risks associated with driving
while intoxicated.
Finally, substantial evidence supports the conclusion
that appellant’s driving was extraordinarily dangerous. This
collision occurred because, late at night, appellant drove the
wrong way down a freeway off-ramp directly into oncoming
traffic. This conduct was so dangerous that the fatal crash
occurred almost immediately after appellant entered the offramp.
Appellant hit the victims’ vehicle in the “‘gore point,’” where the
off-ramp intersects with driving lanes. A rational jury could
conclude, based on this evidence, that appellant’s driving was
highly dangerous and that he acted with implied malice.
Cumulative Error. Appellant contends the
cumulative effect of these asserted errors was prejudicial.
Because we have found no error, there is nothing to cumulate.
(People v. Cardenas (2025) 18 Cal.5th 797, 836; People v.
Camacho (2022) 14 Cal.5th 77, 148.)
Conclusion
The judgment is affirmed.
NOT TO BE PUBLISHED.

YEGAN, Acting P. J.
We concur:
CODY, J. DEROIAN, J.*

• Judge of Santa Barbara County Superior Court, assigned by the Chief

Justice pursuant to art. VI, section 6 of the California Constitution.

10
Michael Frye, Judge

Superior Court County of San Luis Obispo

---

Laini Millar Melnick, under appointment by the
Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Assistant Attorney General, Shezad H. Thakor, Blake
Armstrong, Deputy Attorneys General, for Plaintiff and
Respondent.