Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CR50607
ROBIE, J.
Defendant Quintin Joey Watts killed 11 people and seriously injured 21 others when the charter bus he was driving to Colusa Casino flipped over and careened into a drainage ditch. Prior to the accident, Watts, an insulin-dependent diabetic, had drunk some lemonade with fruit punch and had slept approximately three to three-and-one-half hours in the past one-and-one-half days. After the accident, defendant told a California Highway Patrol (CHP) officer he was “just plain tired” and “trying to hold onto a job.”
A jury found Watts guilty of 11 counts of gross vehicular manslaughter and found he had inflicted great bodily injury on 21 others. The court sentenced him to 26 years 4 months in prison.
Defendant appeals, raising issues of instructional error, ineffective assistance of counsel, prosecutorial misconduct, and cumulative error. Finding no prejudicial error, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In September 2008, defendant started working as a bus driver for Daniel Cobb, who ran a company that chartered round-trip visits to Thunder Valley Casino and Colusa Casino. Defendant had a commercial driver’s license and 12 or 13 years’ experience as a truck driver.
Sunday, October 5, 2008, was the day of the fatal bus crash. Around 6:00 p.m., off-duty Colusa County Sheriff Sergeant Jose Corona saw the charter bus defendant was driving approaching him from the opposite lane on Lone Star Road. The bus swerved across the center line into the sergeant’s lane of traffic, tried to get back into its lane, but ended up making a “very sudden violent turn... back... across both lanes and... dove face first into [a drainage] ditch.” There were no signs defendant had applied the brakes. One passenger who had been sitting near defendant noticed defendant had been “falling asleep” while driving, “not all the way asleep, but his eyes w[ere] going smaller and smaller.” Another passenger noticed defendant “was sleeping” as she looked at his face through one of the bus’s mirrors.
Forty-one people, including defendant, were on the bus. Eight of the 11 who perished, including Cobb, died at the scene. Twenty-one of the survivors suffered great bodily injuries.
Paramedics were dispatched to the scene within an hour. Defendant told the paramedic who attended to him he could not “recall the incident, the moments before the incident, during the incident and right after the incident.”
Three days later, defendant was interviewed by a CHP officer and investigator. When asked about the days leading up to the accident, he detailed his work schedule, food consumption, and medical issues. From the time he got up on Saturday, October 4 at 4:00 or 4:30 a.m. for a roundtrip to Thunder Valley Casino to the time of the accident on Sunday, October 5 at approximately 6:00 p.m., he had slept a total of three to three-and-a-half hours. Hours before the fatal accident, defendant had eaten some Mexican food and drunk some lemonade with fruit punch, something he “‘knew [he] probably shouldn’t have.’” He was an insulin-dependent diabetic but had lost his card that contained calculations of appropriate insulin dosages. When asked how he calculated his dosages, he responded, “‘Guessing like, you know.’” If his blood sugar level became too high and he did not inject himself with insulin, he became “drowsy and tired.” He did not think his blood sugar was elevated at the time of the accident, but he was “just plain tired, man... trying to hold onto a job, man.” He was being paid approximately $35 per day. He had experienced driving while fatigued “many times” and would “pull over and stop driving” to rectify the situation. This time he “blacked out” just before the accident and could not remember what happened.
In addition to giving these statements to police, defendant told a television reporter he “was not feeling sleepy at all, ” and that “not getting enough sleep... was not the issue at all.” He believed he “had to be totally knocked out... to have... experienced all those things that that bus did and not wake up at all.”
DISCUSSION
I
The Court’s Failure To Instruct On The Defense Of Unconsciousness Was Harmless Beyond A Reasonable Doubt
Defendant contends he was entitled to instructions on the defenses of unconsciousness and accident. He argues the trial court had a sua sponte duty to give these instructions and, alternatively, he was denied effective assistance of counsel when his attorney failed to request them. We conclude the court had a sua sponte duty to instruct on unconsciousness only, but the error was harmless beyond a reasonable doubt. Given this conclusion, we do not reach defendant’s ineffective assistance of counsel argument.
The instruction on the unconsciousness defense, CALCRIM No. 3425, provides in pertinent part as follows: “The defendant is not guilty of... if (he/she) acted while legally unconscious. Someone is legally unconscious when he or she is not conscious of his or her actions. [Someone may be unconscious even though able to move.] [¶] Unconsciousness may be caused by (a blackout...). [¶] The People must prove beyond a reasonable doubt that the defendant was conscious when (he/she) acted. If there is proof beyond a reasonable doubt that the defendant acted as if (he/she) were conscious, you should conclude that (he/she) was conscious. If, however, based on all the evidence, you have a reasonable doubt that (he/she) was conscious, you must find (him/her) not guilty.”
The instruction on the accident defense, CALCRIM No. 3404, provides in pertinent part as follows: “[The defendant is not guilty of... if (he/she) acted [or failed to act] without the intent required for that crime, but acted instead accidentally. You may not find the defendant guilty of... unless you are convinced beyond a reasonable doubt that (he/she) acted with the required intent.]”
A trial court has a sua sponte duty to instruct on a particular defense “‘“only if [1] it appears that the defendant is relying on such a defense, or [2] if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of the case.”’” (People v. Dominguez (2006) 39 Cal.4th 1141, 1148.)
At trial, defendant’s theory of the case was that something out of his control caused him to lose consciousness while driving and that is what caused the accident. This theory was summed up in defense counsel’s closing argument as follows: “[I]f you believe he’s driving down the road and some medical thing that he could not have predicted has caused him to be unconscious... then that, ladies and gentlemen, is my laymen’s definition of an accident. And that is what some insurance companies would call an act of God, but that is certainly not criminal negligence.” To support this theory, the defense pointed to evidence the bus swayed from side to side but defendant did not apply the brakes, defendant told the paramedic he could not “recall the incident, the moments before the incident, during the incident and right after the incident, ” he told the CHP officer he had “blacked out” just before the accident occurred, and he told a television reporter he “was not feeling sleepy at all, ” that “not getting enough sleep... was not the issue at all, ” and that he “had to be totally knocked out... to have... experienced all those things that that bus did and not wake up at all.” This evidence and trial counsel’s arguments support defendant’s contention both that he relied on the defense of unconsciousness at trial and that the evidence supported giving the instruction on unconsciousness.
Based on this argument and evidence, however, the court did not have a duty to also instruct on accident. The accident instruction is a more general instruction that negates defendant’s culpability not based simply on unconsciousness but on any actions done without intention. Here, defendant’s theory of the case and the evidence he presented to support that theory were based on defendant’s unconsciousness, although defense counsel used the term “accident” in his arguments to the jury.
The People argue that neither instruction was applicable because the “operative time period in question for the issue of intent was when [defendant] got behind the wheel of the bus, not after he began driving, ” and defendant “presented no evidence that he unconsciously or accidentally got into the driver’s seat.” The problem with this argument is that it does not comport with the People’s theory that, while acting with gross negligence, defendant committed either an infraction (failing to maintain the bus on the right side of the roadway) or an otherwise lawful act that might cause death (driving while fatigued). If the jury believed that defendant was not fatigued but blacked out while driving through no fault of his own and unconsciously crossed the lane of traffic, which caused the bus to careen into the drainage ditch, it would have found him not guilty of vehicular manslaughter. Thus, the trial court should have instructed the jury on unconsciousness.
The question then becomes prejudice. The erroneous failure to instruct on a defense is harmless beyond a reasonable doubt where “other proper instructions adequately guide the jury in reaching factual determinations on those issues which would have been presented to the jury by the omitted instruction.” (People v. Jones (1991) 234 Cal.App.3d 1303, 1314.) Here, the trial court’s failure to instruct on the defense of unconsciousness with respect to vehicular manslaughter was harmless beyond a reasonable doubt. The jury was properly instructed that to find him guilty of this crime, it had to find “[d]efendant’s grossly-negligent conduct caused the death of another person.” The jury was further instructed that gross negligence “involves more than ordinary carelessness, inattention or mistake in judgment. A person’s acts are gross[ly] negligen[t] when, one, he or she acts in a reckless way that creates a high risk of death or great bodily injury, and two, a reasonable person would have known that acting in that way would create such a risk. In other words, a person acts with gross negligence when the way he or she acts is so different from how an ordinary careful person would act in the same situation that his or her act amounts to a disregard for human life or indifference to the consequences of that act.” Given that the jury found defendant guilty of gross vehicular manslaughter, which requires gross negligence, the jury necessarily rejected the evidence at trial that defendant’s actions were due to unconsciousness, thereby implicitly resolving the question of that defense adversely to defendant. On these facts, the trial court’s failure to sua sponte instruct on unconsciousness was harmless beyond a reasonable doubt. (See People v. Jones, supra, 234 Cal.App.3d at pp. 1315-1316 [the failure to instruct on accident or misfortune with respect to attempted murder was harmless because the jury was properly instructed that the attempted murder was “‘willful, deliberate and premeditated, ’” and the jury found the allegation true].)
II
There Was No Prosecutorial Misconduct During Voir Dire, And Trial Counsel Was Not Ineffective For Failing To Object To Prosecutorial Misconduct In Closing Argument
Defendant contends the prosecutor committed misconduct during voir dire (to which the court overruled trial counsel’s objection), and his trial counsel was ineffective for failing to object to prosecutorial misconduct during closing argument. As we explain, we agree that there was misconduct during closing argument; however, trial counsel was not ineffective for failing to object because he could have had a reasonable tactical reason for not objecting.
The applicable federal and state standards regarding prosecutorial misconduct are well settled. “‘A prosecutor’s rude and intemperate behavior violates the federal Constitution when it comprises a pattern of conduct “so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.” [Citations.] But conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves “‘the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.’” [Citations.]’” (People v. Gionis (1995) 9 Cal.4th 1196, 1214-1215.)
A
The Prosecutor Did Not Commit Misconduct During Voir Dire
During voir dire, the prosecutor asked prospective jurors questions about car accidents in which they had been involved. On appeal, defendant highlights two of these questions and claims they amounted to misconduct. One, the prosecutor asked a prospective juror whether it was “fair” to hold a driver “accountable” who had “hit the juror’s car” and “did something negligent or wasn’t careful [and] damaged [the juror’s] property.” Two, the prosecutor asked another prospective juror who had been “hit from behind by a semi truck” while waiting at a stop sign if there had been “accountability” for the at-fault driver. After a series of similar questions, defense counsel objected as follows: “This is reaching a point now -- there’s not only personalizing the individual members of the jury but it is argument.” The court overruled the objection. On appeal, defendant claims that by “personaliz[ing] the evidence, ” these questions “infected [his] trial with fundamental unfairness.” Not so.
The questions appropriately inquired into any biases the jurors may have toward traffic accident cases and if their experiences as victims of traffic accidents would improperly influence them. As the prosecutor stated at the outset of voir dire, he was going to be asking questions about the jurors’ “personal experiences” to see whether those experiences might have an “impact on [the jurors’] ability to be comfortable with this case.” He further explained there had been jurors in the past who did not think things said about the case in voir dire were “fair, ” and they were “candid” and revealed they “ha[d] a little bit of a problem with [the case]” and the court and parties “admire[d] honesty and candor in that situation.” The court and parties were not going to “make a judgment” and say these were “‘bad pe[ople]’” just because “‘you can’t follow this or you don’t think that’s fair.’ This just might not be the right case for you, and that’s what we’re going to explore a little bit more.” It was then the prosecutor started asking the questions regarding the prospective jurors’ experiences with traffic accidents and whether they thought the accidents were resolved fairly and the people who caused them held accountable. There was nothing objectionable about these questions.
B
Trial Counsel Was Not Ineffective For Failing To Object To Prosecutorial Misconduct During Closing Argument
Defendant points to three instances of alleged misconduct during closing argument, which he claims “inflamed the passions of the jury, ” and argues that trial counsel was ineffective for failing to object. We find two instances of misconduct but do not hold defense counsel deficient for failing to object.
The first instance of alleged misconduct occurred when the prosecutor told jurors to “[t]hink about the last time you were driving and maybe you’re in your little private car. I have a small car myself. And a big rig or a bus comes by you on the freeway, and you kind of go, whoa, if that thing hit me, it would be lights out.” Defendant contends “[t]his hypothetical was a transparent attempt to try to inflame the passions of the jury and to frighten the jurors, effectively dissuading them from an objective determination of the evidence before them.” Not so.
The prosecutor’s point in using this example was fairly summed up in his next sentences: “It’s pure common sense, and we all agree that it was fair, and it’s appropriate to hold commercial drivers to that higher standard of care. That’s what we have here. And that makes sense.” The prosecutor went on to explain that defendant was an “experienced commercial driver” who was “driving while fatigued” after ingesting an improper diet for an insulin-dependent diabetic, all of which was not the “careful attitude that we expect from a commercial driver.” Rather than “inflam[ing] the passions of the jury, ” the prosecutor used the hypothetical to put in context defendant’s status as a commercial driver who drove the bus while fatigued. There was nothing improper about this portion of the argument.
The second instance of alleged misconduct occurred when the prosecutor invited jurors to think about an incident similar to this one occurring while they were boarding a plane. The prosecutor argued, “We all use commercial transportation at one time or another.... We all trust the people who operate those things for us who have the training, who know the regulations, we all trust them. Think about getting on an airplane.... Usually the pilot kind of stands up there near the cockpit when you’re getting on the plane, hi, how are you today, how are you today. Stop and think how you would feel if the pilot were standing there going, oh, I’ve been up for 37 hours, I’ve only had a couple hours of sleep, I’m hecka-tired. I’m a diabetic and I don’t pay attention to my insulin dosages. I guess at them. I don’t even know if I tested myself this morning. Come on board. You’re getting on that plane. Stop and think about putting a family member or loved one on a bus and that driver tells you, you know, the condition I’m in, I’m going to go drive on the freeway, I’ve only had a few hours of sleep, a couple hours of sleep in 37 hours, I’m really tired, but come on board. Do you do that to a member of your family?” (Italics added.)
Defendant contends this argument was misconduct because it invited the jurors to view themselves and their family members as the victims of a similar accident. We agree. It is well-settled that it is improper for a prosecutor to invite the jury to view the case through the eyes of the victim. (People v. Pensinger (1991) 52 Cal.3d 1210, 1250 [misconduct occurred in closing argument where the prosecutor told jurors to imagine that the victim of the kidnapping and murder was their child]; People v. Jones (1970) 7 Cal.App.3d 358, 363 [misconduct occurred in closing argument where the prosecutor told jurors that the “sons of the jurors and their girl friends dare not ride motorcycles into an area where the [defendant] is located, because he reacts seriously”].) Here, the prosecutor asked jurors to place themselves both in the position of victims who board a plane with a pilot in defendant’s fatigued condition and in the position of family members of victims who board a bus with a driver in defendant’s fatigued condition. Under the foregoing authorities, we conclude these remarks constituted an improper appeal to the passion of the jury.
The third instance of alleged misconduct occurred when the prosecutor commented on defendant’s statements about his lack of sleep and need for income. The prosecutor argued, “[Defendant is] the one when asked... what could you have done to avoid the accident, said stayed at home, but I needed the money. A measly $35. About $3 a head for those who died. About 10 cents a person for everybody [who] was on that bus, but I needed the money. Could that wreck have happened because you fell asleep he was asked. He answered, that’s what I think happened.” (Italics added.) Defendant argues these comments “sought only to arouse the jury’s sense of retribution and passions.” We agree. Whether purposeful or not, the prosecutor’s argument would tend to arouse the passion of the jury by putting a price tag on each passenger of the bus and on each person who died in the accident, because the monetary figure was so low given the large number of victims and defendant’s small paycheck. There was no legitimate purpose to this argument.
Because there were no objections to these arguments, however, the issue of prosecutorial misconduct was forfeited. (People v. Hill (1998) 17 Cal.4th 800, 820.) We therefore evaluate whether trial counsel was ineffective for failing to object, as defendant claims. He was not, because there could have been a tactical reason for counsel not to object. (See People v. Lucas (1995) 12 Cal.4th 415, 436-437.) This was an emotionally-charged case in a small community involving 11 people who were killed and 21 who were injured while defendant was driving them to a casino. The closing argument (including rebuttal) was short and focused mainly on whether defendant was reckless in driving knowing he had had minimal sleep. The statements regarding the objectionable material were short and the prosecutor did not dwell on them. Defense counsel reasonably could have concluded that he did not want to draw additional attention to the statements by objecting, having the court rule on them, striking them, and having the court give an admonition. Because this would have been a reasonable trial strategy, we cannot find defense counsel’s performance deficient.
III
There Was No Cumulative Prejudicial Error
Defendant contends that the cumulative errors here warrant reversal because they deprived him of his federal constitutional rights to counsel and a fair trial. The errors we have identified were the court’s failure to give an instruction on the defense of unconsciousness and the prosecutor’s misconduct in closing argument. We cannot say, however, the errors in concert were prejudicial, even under the more stringent standard of prejudice for federal constitutional errors enunciated in Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705]. Simply put, the evidence defendant drove with gross negligence was overwhelming. Defendant had been a commercial truck driver for 12 or 13 years who had experience dealing with fatigue while driving. “‘[M]any times’” in the past, he would “pull over and stop driving” to rectify the situation. He also knew he was a diabetic who needed insulin to keep his blood sugar under control. Still, defendant drove a bus with 40 other people onboard having consumed a sugary drink, something he said he “‘knew [he] probably shouldn’t have’” and having slept only three to three-and-one-half hours in the past one-and-one-half days. He was falling asleep at the wheel and in defendant’s words, he was “just plain tired” when the fatal accident occurred. On this record, the court’s failure to instruct on unconsciousness coupled with the prosecutor’s improper argument in closing was harmless beyond a reasonable doubt.
DISPOSITION
The judgment is affirmed.
We concur: RAYE, P. J. BUTZ, J.