Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 05HF1351, Susanne S. Shaw, Judge.
Allison H. Ting, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, David Delgado-Rucci and Ronald A. Jakob, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
BEDSWORTH, ACTING P. J.
Appellant was convicted of (1) driving under the influence of alcohol (DUI) and causing bodily injury, and (2) driving with a blood alcohol level of .08 percent or more and causing bodily injury. The jury also found he inflicted great bodily injury on the victim. Appellant contends, inter alia, the verdict forms for the lesser included offenses were prejudicially defective. We agree and reverse the judgment.
FACTS
On the evening of April 12, 2005, Cynthia Hunter was driving on Pacific Coast Highway in Laguna Beach when she noticed appellant driving slightly ahead of her in the next lane. Appellant’s car drifted halfway into her lane, forcing Hunter to apply her brakes to avoid a collision. Appellant then drove completely into Hunter’s lane, forcing her to brake again.
Up ahead in that lane, another car was stopped at Table Rock Drive waiting for Amy Bainbridge and her friend to cross PCH at a marked crosswalk. Appellant swerved around that car and drove into the crosswalk without slowing down. His vehicle struck Bainbridge, causing her spinal injuries and partial paralysis.
Testing revealed that at the time of the collision, appellant’s blood alcohol level was between .096 and .10 percent. At trial, the defense admitted appellant was under the influence of alcohol at the time he drove into Bainbridge. However, taking the stand in his own defense, appellant denied he violated any other traffic laws or otherwise drove in a negligent manner. He testified he was unaware of the crosswalk at Table Rock, and as he approached that intersection, he was forced to veer around the car that was stopped in front of him. At that point, it was too late for him to stop, and although he tried to steer around Bainbridge, he was unable to do so.
Appellant was charged in count 1 with DUI and causing bodily injury. (Veh. Code, § 23153, subd. (a).) In count 2, he was charged with driving with a blood alcohol level of .08 percent or more and causing bodily injury. (§ 23153, subd. (b).) With respect to both charges, the prosecution was required to prove not only that appellant drove while drinking in the manner alleged, but also that he concurrently committed an illegal act or neglected a legal duty in driving his vehicle and that such act or neglect proximately caused bodily injury to another. (§ 23153, subds. (a), (b).)
Unless noted otherwise, all further statutory references are to the Vehicle Code.
The prosecution alleged appellant was remiss in his driving in several respects, in that he: (1) drove too fast for the conditions (§ 22350); (2) failed to maintain a safe distance between vehicles (§ 21703); (3) failed to yield the right of way to a pedestrian in a crosswalk (§ 21950); (4) passed a vehicle that was stopped at a crosswalk (§ 21951); and (5) failed to use reasonable care in handling his vehicle.
The trial court instructed the jury that DUI and driving with a blood alcohol level of .08 percent or more were lesser included offenses of counts 1 and 2, respectively. (§ 23152, subds. (a), (b).) However, the verdict forms pertaining to these lesser offenses erroneously included the “causing bodily injury” element, an element that was only applicable to the greater offenses. Specifically, the verdict forms provided that appellant was guilty/not guilty of DUI “causing bodily injury[], a lesser offense necessarily included within the offense as charged in count 1” and “driving with a blood alcohol .08% or more causing bodily injury[], a lesser offense necessarily included within the offense as charged in count 2.” (Italics added and capitalization omitted.)
In addition to the substantive counts, the prosecution also alleged appellant personally inflicted great bodily injury on Bainbridge. (Pen. Code, § 12022.7, subd. (a).) With respect to that allegation, the prosecution had requested the jury be instructed that “[g]reat bodily injury means significant or substantial physical injury . . . that is greater than minor or moderate . . . .” (See CALCRIM No. 3160.) However, through apparent inadvertence, the trial court did not give this instruction or provide any substantive instructions on the great bodily injury allegation.
During deliberations, the jurors sent the court a note saying it needed “clarification as to which charge is the greater count 1, or count 2.” The court told them, “Anything with injuries is the greater. The lesser is just simply driving under the influence of alcohol, okay? And the greater is count 1, which is driving under the influence of alcohol; count 2 with causing injury. And count 2, I mean, I think it’s pretty obvious. The lesser is just driving under the influence.”
With that, the jury resumed its deliberations and found appellant guilty of the charged offenses. The jury also found appellant personally inflicted great bodily injury on Bainbridge during the commission counts 1 and 2. After appellant admitted a prior conviction for DUI, the court sentenced him to probation on the condition he serve a year in jail. This appeal followed.
DISCUSSION
Appellant contends the defective verdict forms on the lesser included offenses, coupled with the court’s “convoluted answer” to the jury’s note, left the jury with an impermissible “all-or-nothing choice on the matter,” meaning he was either guilty of the charged offenses or nothing at all. Appellant argues this eviscerated instruction on the lesser offenses and violated his constitutional right to a fair trial and due process.
As a preliminary matter, the Attorney General contends appellant waived his right to challenge the verdict forms by failing to object to them in the trial court. (See People v. Toro (1989) 47 Cal.3d 966, 976, fn. 6 [“An objection to jury verdict forms is generally deemed waived if not raised in the trial court”].) However, “‘[t]he fact that a party, by failing to raise an issue below, may forfeit the right to raise the issue on appeal does not mean that an appellate court is precluded from considering the issue.’ [Citation.]” (People v. Abbaszadeh (2003) 106 Cal.App.4th 642, 649.) An appeal may be heard even in the absence of an objection when, as here, it raises an issue that implicates the defendant’s constitutional rights, and defense counsel was arguably ineffective for failing to raise it below. (Id. at pp. 649-650.) Indeed, excusing objections in this situation has the beneficial effect of heading off collateral proceedings involving the writ of habeas corpus. (See ibid.) Therefore, we will exercise our discretion to consider appellant’s challenge to the verdict forms. (Ibid.)
“A verdict is to be given a reasonable intendment” (People v. Radil (1977) 76 Cal.App.3d 702, 710) and should be construed in light of the issues presented, the court’s instructions and the arguments of counsel. (Ibid.; People v. Mackabee (1989) 214 Cal.App.3d 1250, 1256.) The verdict “must be upheld when, if so construed, it expresses with reasonable certainty a finding supported by the evidence [citation].” (People v. Radil, supra, 76 Cal.App.3d at p. 710.)
The pivotal issue in this case was whether, in addition to drinking and driving, appellant drove in an illegal or negligent manner and thereby caused bodily injury to another. (§ 23153, subds. (a), (b).) The parties’ closing arguments were closely focused on this issue, and both sides emphasized the fact that causing bodily injury was a necessary component of the charged offenses. In addition, the court’s oral instructions properly explained that causing bodily injury was an element of the charged offenses, but not the lessers.
Having been so instructed and informed, the jury was understandably perplexed when the verdict forms on the lessers contained the causing bodily injury element. The inclusion of this element signaled there was no substantive difference between the greater and lesser offenses. And contrary to the court’s instructions, it effectively placed the jury in the position of having to convict appellant of the greater offenses or acquit him altogether. The jurors were so confused by this state of affairs that, as expressed in their note, they thought count 1 was a lesser included offense of count 2, or vice versa. They did not grasp the fact that each of the counts had separate lesser included offenses attached to them.
In attempting to clarify matters, the court first told the jurors, “Anything with injuries is the greater.” But that did not square with the verdict forms, because the causing bodily injury element was included for both the greater and the lesser offenses. The court then told the jury, “The lesser is just simply driving under the influence of alcohol.” However, both DUI and driving with a blood alcohol level of .08 percent or more were included as lesser offenses, so the court’s response was not quite accurate. To make matters even worse, the court went on to tell the jury “the greater is count 1, which is driving under the influence of alcohol.” This fed into the jury’s misconception that counts 1 and 2 were somehow greater and lesser included offenses of each other. By telling the jury that count 1 was the greater, the court implied count 2 was the lesser, which was not correct. Moreover, the court’s description of count 1 as “driving under the influence of alcohol” was itself erroneous because count 1 alleged DUI and causing bodily injury.
Given all these flaws in the court’s response, it could only have added to the jury’s confusion, not lessened it. It is one thing when the court fails to provide any verdict forms on a relevant lesser offense and the jury convicts on the greater without expressing any signs of reservation or confusion. In that situation, it makes sense to presume that the verdict reflects the jury’s intention. (See People v. Osband (1996) 13 Cal.4th 622, 690.) Here, however, the verdict forms on the lesser offenses were patently erroneous and this caused the jury to actively seek clarification from the court. This suggests that the jury was uncomfortable with the verdict choices it was provided and that it was inclined toward a different conclusion. (Ibid.)
After the jury completed its deliberations, the court read the verdict in open court and asked the jurors, “Ladies and Gentlemen, are these your verdicts?” The record reflects the jury answered in the affirmative. The Attorney General takes this as a sign the jury intended to convict appellant of the greater offenses. But the jury’s affirmative answer could also be interpreted as a simply confirmation of its having — in a factual sense — convicted appellant of the greater offenses. The verdict itself does not reflect the basis of the jury’s reasoning or prove the jury was somehow able to make sense of the erroneous verdict forms. And for the reasons explained above, it is very doubtful the court’s answer to the jury’s question could have gone far in terms of helping the jury in this regard. Therefore, we cannot read too much into the jury’s general affirmation of the verdict.
In seeking to uphold the verdict, the Attorney General also points out the jury found true the enhancement allegation that appellant inflicted great bodily injury on the victim. But the problem with relying on this finding as evidence of the jury’s intent is that the court failed to provide the jury with any instructions on the enhancement allegation. So, we have no idea what standard the jury used, or how it came about its decision, to find the enhancement true. This complication further undermines our confidence in the verdict.
Taken as a whole, the instructions and verdict forms were in considerable disarray. And the court’s response to the jury’s request for clarification did nothing but obfuscate the issues. It may be that the error here was harmless, but we cannot say so with the confidence required for affirmance of the judgment.
This is, of course, quite different from what we said the first time this case was before us. Then we held any error in the court’s original instructions and subsequent oral instruction to the jury was harmless. We were – quite simply – wrong. And the more we thought about it, the clearer it became to us that we were wrong. We simply cannot say beyond a reasonable doubt that the trial court’s errors were harmless. The judgment is, therefore, reversed.
In light of this conclusion, we need not consider the other contentions that appellant raises in this appeal.
WE CONCUR: O’LEARY, J., ARONSON, J.