VANEGAS

Defendant Jose Vanegas challenges his conviction for second degree murder. He contends the trial court erred in prohibiting his expert witness from testifying to a portion of a report by another expert on which his expert based his opinion. He further contends the trial court erred in instructing the jury that for purposes of determining implied malice a violation of California’s “basic speed law” is an act inherently dangerous to human life. We reverse the second degree murder conviction and affirm the remainder of the judgment.

FACTS AND PROCEEDINGS BELOW

At approximately 9:30 a.m. Rosa Oliva was sweeping and hosing down the alleyway at the rear of an apartment building in Los Angeles, where she worked as the manager. Several men were in the alley drinking near a utility pole. Sifredo Murillo, who appeared to be drunk, was leaning against the pole.

As Oliva proceeded with her chores she saw defendant Vanegas enter the alley from the south driving a pickup truck. Vanegas accelerated as he drove up an incline in the middle of the alley. Oliva moved to get out of the truck’s way. She saw the truck veer left toward the utility pole. The left bumper of the truck hit…

I respectfully dissent. I agree the trial court erred in instructing the jury a violation of the basic speed law is an act inherently dangerous to human life, thereby relieving the People of their burden to prove beyond a reasonable doubt one of the factual elements for a finding of implied malice necessary to support the conviction of Jose Raul Vanegas for second degree murder. (See People v. Flood (1998) 18 Cal.4th 470, 482 [ 76 Cal.Rptr.2d 180 , 957 P.2d 869 ] [instruction that individuals in motor vehicle pursuing defendant were “peace officers” in prosecution under Vehicle Code section 2800.3 violated defendant’s due process right to have the jury determine each element of the charged offense].) However, when viewed in light of the evidence and in context with all other instructions given in this case, I do not believe the error was prejudicial. (Flood, at pp. 502-503, 507 [instructional error that improperly describes or omits an element of an offense or that raises an improper presumption falls within the broad category *606 of error subject to harmless error review under Chapman v. California (1967) 386 U.S. 18, 24 [ 87 S.Ct. 824 , 17 L.Ed.2d 705 ]; such instructional…

Defendant Jose Vanegas challenges his conviction for second degree murder. He contends the trial court erred in prohibiting his expert witness from testifying to a portion of a report by another expert on which his expert based his opinion. He further contends the trial court erred in instructing the jury that for purposes of determining implied malice a violation of California's "basic speed law" is an act inherently dangerous to human life. We reverse the second degree murder conviction and affirm the remainder of the judgment.

At approximately 9:30 a.m. Rosa Oliva was sweeping and hosing down the alleyway at the rear of an apartment building in Los Angeles, where she worked as the manager. Several men were in the alley drinking near a utility pole. Sifredo Murillo, who appeared to be drunk, was leaning against the pole.

As Oliva proceeded with her chores she saw defendant Vanegas enter the alley from the south driving a pickup truck. Vanegas accelerated as he drove up an incline in the middle of the alley. Oliva moved to get out of the truck's way. She saw the truck veer left toward the utility pole. The left bumper of the truck hit Murillo, "pressing" him…