Opinion
E041691
9-5-2008
THE PEOPLE, Plaintiff and Respondent, v. WILLIAM WAYNE ANNO, Defendant and Appellant.
Eric Multhaup, 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, and Pamela Ratner Sobeck and Raymond M. DiGuiseppe, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published
I. INTRODUCTION
Defendant William Wayne Anno appeals from his conviction of gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a) — count 1) and boating under the influence causing injury (Harb. & Nav. Code, § 655, subd. (f) — counts 2 and 3) as well as true findings on the enhancement allegations that he personally inflicted great bodily injury (Pen. Code, §§ 1192.7, subd. (c)(8), 12022.7, subd. (a); Veh. Code, § 23558) and that he had previously been convicted of a serious or violent felony (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subd. (a)-(d)) and of driving a vehicle with a blood alcohol level of .08 percent or greater (Veh. Code, §§ 23566, subd. (a), 23152, subd. (b)).
On appeal, defendant contends (1) the trial court abused its discretion by excluding evidence of the manslaughter victims methamphetamine use and "aggressive" lifestyle; (2) the trial court erred in failing to instruct the jury on the defense theory of intervening and superseding cause; and (3) the prosecutor committed prejudicial misconduct in argument to the jury on the standard of proof beyond a reasonable doubt. We find no prejudicial error, and we affirm.
II. FACTS AND PROCEDURAL BACKGROUND
Lance and Wendy Furman and their children, Nicholas, Ashley, and Bryce, were boating at Lake Havasu on July 31, 2004. They had owned their boat for three years and used it every other weekend. About 7:15 p.m., as it was starting to get dark, they headed back to their launch site at Windsor Beach. Lance was in the front left bucket seat, driving the boat. Wendy was in the front right bucket seat holding Bryce. Nicholas was in the seat behind Wendy, and Ashley was on the floor between her parents.
For clarity and ease of reference, we use the first names of persons who share a surname. In doing so, we intend no disrespect. (See In re Marriage of Olsen (1994) 24 Cal.App.4th 1702, 1703, fn. 1.)
The water was not overly choppy, and visibility was normal. Wendy testified that all the boats lights were on. She estimated the boats speed at 20 to 25 miles per hour. She did not recall telling an officer that their speed had been as much as 35 to 40 miles per hour. As they were approaching Windsor Beach, she did not see any other boats in the area. Just before they reached buoys, Lance asked Wendy to get the keys for the truck and trailer. She bent over to do so, and that was the last thing she remembered about that night.
Defendant was piloting his 21-foot outboard boat on Lake Havasu that night, traveling at a speed of 25 to 30 miles per hour. His friends, Moses and Nora Renteria and Troy Shepherd, were traveling in tandem with him in the Renterias boat. Defendant saw another vessel like a "blur approaching from his right side" at the moment his passenger, Amy Shepherd, screamed. Defendant was unable to change course or reduce his speed, and his boat and the Furmans boat collided.
Lance died at the scene from blunt force head injury. Wendy regained consciousness in a hospital, where she spent seven days. She had suffered multiple skull fractures, and one ear had been severed and reattached. At the time of trial, she continued to suffer from severe headaches, short-term memory loss, ringing and itching in her ear, and scarring. Nicholas, age 11 at the time of the accident, was in a coma for 33 days, and he had to relearn how to talk, eat, and walk. At age 14, he acted like a six-year-old, had become impulsive and disrespectful, and had been placed in special classes at school.
Spencer Sager, another boater, came upon the accident scene at 8:20 to 8:25 p.m. Several people in the water clinging to the bow of a boat directed him to the Furmans boat. Someone called out that there was a man with no pulse, and Sager dialed 911 for help. Sager testified that the front navigational and dash lights of the Furmans boat were on. A man named "Bill" came on board the Furmans boat. A woman was performing CPR on Lance, and "Bill" jumped on top of Lance and screamed, "Please dont leave me buddy, come back buddy, please dont leave me, please dont leave me, come back, come back man." The woman performing CPR asked "Bill" to leave because he was interfering, and he smelled of alcohol. Bill appeared to have been drinking heavily. Sager was unable to identify "Bill" as defendant.
Lisa Anne Allegrini, a registered nurse, arrived in a boat ahead of the Sagers boat. At the accident scene, she saw two men and a woman in the water. The woman and a man in a white shirt climbed onto their boat and yelled at the second man, "Billy," to get on the boat. The man refused to do so until the boat to which he was clinging sank.
Allegrini went to the Furmans boat and started CPR on Lance. A man came over and exhorted Lance to "come on." Allegrini pushed him out of the way because he was in her way and was slurring his words. Allegrini directed another man to shut off the power to the Furmans boat. That man helped her with the CPR breathing. Both men appeared to be drunk, and the man without a shirt smelled "horrible." Allegrini was not able to identify either man.
Deputy Edward Trafecanty of the Mojave County Sheriffs office in Arizona was patrolling Lake Havasu on the evening of July 31. He received a call at 8:23 p.m. reporting a collision, and he arrived at the collision scene just before 9:00 p.m. The lake was about two and one-half miles wide at that point, and the collision scene was about two miles south of where the mouth of the Colorado River empties into the lake. Defendant told Deputy Trafecanty he had not seen anything until his passenger screamed. Defendant first said he had seen the lights of the Furmans boat but later said he was not sure whether the Furmans boats lights had been on. Deputy Trafecanty detected an odor of alcohol on defendants breath.
Timothy Kristof, a Havasu State Park employee, responded to the collision scene about half a mile from the California side of the lake, south of Havasu Landing, with Ranger Ron Gayman. When they arrived at 9:45 to 9:50 p.m., defendant was performing CPR on Lance. Gayman took over and continued CPR for another three to four minutes until the fire department rescue boat arrived.
Deputy Sheriff Michael Miller of the San Bernardino County Sheriffs Department arrived at the scene at 9:26 p.m. Another deputy told Deputy Miller that defendant had been driving one of the boats involved in the collision and that defendant had not been cooperative and had been drinking. Deputy Miller smelled the odor of alcohol on defendant and described defendants eyes as "bloodshot and glossy." Defendant slurred his words.
Deputy David Smith interviewed defendant at about 10:00 p.m. Deputy Smith noticed a "slight odor of an alcoholic beverage" emanating from defendant. Defendant had "red, watery eyes, and his speech was somewhat slurred." Defendant denied drinking any alcohol that night. Defendant told Deputy Smith his boat had had no mechanical problems and everything had been working fine. Defendant said he had been boating on Lake Havasu for 20 years, had accumulated more than 5,000 hours of boating time, and had completed a United States Coast Guard instruction course. Defendant said he had heard his passenger scream and he looked and saw a "blur" approaching from the right, heading east, and crossing in front of his bow. He had not seen the boat before that, and it had happened too fast for him to change course, reduce his speed, or take any evasive action before the boats collided. Defendant said that before the collision, the Renterias boat had been traveling on his left side at about the "9 oclock" position, slightly behind his boat.
Defendant agreed to complete any field sobriety test asked of him, but then said he was too upset to perform a "walk and turn test." Defendant was unable to do a "one-leg stand" or the "finger-to-nose test." Defendants responses to the "horizontal gaze nystagmus" test and the "Rhomberg" test were consistent with someone who might be impaired by alcohol. Defendant had difficulty performing a written alphabet test, and portable breath measuring equipment indicated the presence of alcohol. Defendant was arrested, cuffed, and transported to jail. A sample of his blood was drawn at 10:55 p.m.
Defendants blood sample indicated a .07 percent blood alcohol concentration. An employee of the San Bernardino County Sheriffs Department, Scientific Investigations Unit, estimated defendants blood alcohol concentration had been between .11 and .12 percent at the time of the accident. However, she testified her estimate "may or may not" hold true, depending on other calculations she had not made. She also testified that uncontrolled diabetes could cause a person to have slurred speech or difficulty maintaining balance.
Deputies Miller and Smith inspected and inventoried the Furmans boat on August 2. Both deputies had extensive experience in boating accident investigations, boating operation, enforcement, and accident reconstruction. Deputy Miller testified as a boat collision reconstruction expert.
Defendants boat was recovered by a salvage company and towed to a compound where Deputy Smith inspected it. The boats bow light assembly was intact, but when tested, the bow lights and rear on-rail light did not come on. Deputy Smith removed the assembly and found that part of the wiring consisted of a small piece of stereo wire twisted to another wire. Defendants boat motor and operating gauge worked but the navigation and stern lights did not. The battery was producing the normal amount of voltage, but the wiring did not carry sufficient voltage to illuminate the lights. The deputies did not determine whether a fuse might have blown during the collision. The boats stern light was lying on the floor of the boat; the stern light was bent over at a 90-degree angle, and the lens cap was missing. There was neither a bulb nor a bulb casing in the socket. However, the navigation lights did not work when Deputy Smith hooked them directly to the battery.
The Furmans boat was damaged on the left side of the bow, midship area, right side of the stern, and inside on the left, including the steering wheel, deck area next to the drivers compartment, and wiring. The light switch had been set in the "on" position. The navigational lights in the front of the boat functioned, but the switch was loose, and the light went on and off when it was jiggled. The switch, which was next to the damaged steering wheel, could have been damaged in the collision. The boat contained an ice chest that held an empty seven-ounce Jack Daniels blackberry cocktail and a fifth of Jack Daniels whiskey that was three-quarters full.
Deputy Smith testified to his opinion about how the accident had occurred. He believed defendant had been traveling southbound on Lake Havasu at 25 to 30 miles per hour, and the Furmans boat had been traveling eastbound at 30 to 35 miles per hour. When the Furmans boat was crossing, defendants boat struck the Furmans boat near the bow at a 30- to 35-degree angle. Defendants boat had ridden up over the side of the Furmans boat, and defendants bow had struck Lance in the head and had also struck Wendy and Nicholas. Deputy Smith testified that defendants estimated speed of 25 to 30 miles per hour was unsafe and that Lances estimated speed was not a violation of the unsafe speed rules.
Deputy Smith testified about the Navigation Rules of the Inland Coast Guard (Navigation Rules), which apply to boaters on Lake Havasu. He testified that all vessels, both the stand-on vessel and the give-way vessel, have a duty to use due caution, to have a lookout, to avoid collisions, to be careful about speed, and to have lights.
Deputy Miller also testified as to the right-of-way rules for boats. A boats front end has a red navigational light on the left side and a green navigational light on the right side. In a crossing situation, the boat approaching from the right has the right of way, and the boat approaching from the left must stop or give way. The boat showing its red light is called the stand-on vessel and the boat showing the green light is the give-way vessel. Both boats must avoid collisions, and every boat must maintain a lookout, paying attention to other vessels approaching and to marker buoys, obstructions, or other potential hazards.
The jury was instructed under Navigation Rule 15, which governs crossing situations, as follows:
"(a) Vessel which must keep out of the . . . other vessels way.
"When two power-driven vehicles are crossing so as to involve risk of collision, the vessel which has the other on her starboard side shall keep out of the way and shall, if the circumstances of the case admit, avoid crossing ahead of the other vessel."
Deputy Miller testified that if the Furmans boat had been showing its left side red navigational light, it would have been the "stand-on" boat, meaning it should have maintained its course and speed. The red light would have indicated to defendant that he had to give way. It appeared that defendants boat had struck the Furmans boat "a little over two feet from the bow on the portside." Except for damage to the starboard transom, the damage was consistent with defendant attempting to turn hard right to avoid a collision.
Deputy Smith stated his opinion that defendant had violated the rule regarding crossing situations and had failed to give way. Deputy Smith also believed defendant had failed to maintain a proper lookout in violation of Navigation Rule 5 and had maintained an excessive speed in violation of Navigation Rule 6. Deputy Smith also believed defendant had been under the influence of alcohol while operating a vessel and causing injury or death to another in violation of Harbor and Navigation Code section 655, subdivision (f).
The jury was instructed with Navigation Rule 5 (Lookout) as follows: "Every vessel shall at all times maintain a proper lookout by sight and hearing as well as by all available means appropriate in the prevailing circumstances and conditions so as to make a full appraisal of the situation and of the risk of collision."
The jury was instructed with Navigation Rule 6 (Safe Speed) as follows: "Every vessel shall at all times proceed at a safe speed so that she can take proper and effective action to avoid collision and be stopped within a distance appropriate to the prevailing circumstances and conditions.
"In determining a safe speed, the following factors shall be among those taken into account:
"(a) By all vessels:
"(i) The state of visibility;
"(ii) The traffic density [i]ncluding concentration of fishing vessels or any other vessels;
"(iii) The maneuverability of the vessel with special reference to stopping distance and turning ability in the prevailing conditions;
"(iv) At night the presence of background light such as from shore lights or from back scatter of her own lights;
"(v) The state of wind, sea, and current, and the proximity of navigational hazards;
"(vi) The draft in relation to the available depth of water."
Defendant had attended classes and group sessions as part of an alcohol abuse treatment program, including a session on July 27, 2004. The lectures included discussions of the dangers of driving under the influence, the physiological effects of drinking, and the potential adverse consequences.
A. Defense Evidence
Amy Shepherd testified she and her husband, Troy Shepherd, along with Moses and Nora Renteria, had been boating in defendants and the Renterias boats on July 31. They had dinner at the Topock Marina and had left the marina at about 7:00 p.m., near dusk. The Topock Marina was on the river about 20 miles from where the collision occurred. The bow lights, running lights, and rear light stick on defendants boat were illuminated. Defendant followed the Renterias boat at a safe distance. Defendant was sober and was piloting his boat well. Amy testified that the moon was out, but it was dark, clear, and "pretty calm."
She felt the boat turn hard to the right and saw white water and another boat. She was ejected when the collision occurred. When she resurfaced, she heard defendant calling for her. He found her and swam about 30 feet to his capsized boat. Defendant called for Moses to look for the other boat. Ten or 15 minutes later, other boats arrived, and Amy was taken to shore with two of the Furman children and another woman. Amy went to the hospital for an examination. At the hospital, she told a sheriffs deputy that defendant had been traveling at a moderate speed of 20 to 25 miles per hour, and the lights were lit on his boat. She had seen the lights and had put in the light stick herself. She reported that the other boats lights had not been on; she had been keeping a lookout and had never seen any lights.
Nora testified she had seen the lights on defendants boat after the Renterias boat and defendants boat left the Topock Marina. She saw defendants red and green bow lights and the rear light on the stick. As the two boats approached the Windsor Marina, Nora was seated at the front of the Renterias boat and Moses was driving. It was getting dark, and defendants boat was following a few seconds behind.
Nora felt the boat give a quick turn, and she saw that defendants boat had capsized and that defendant and Amy were in the water. Troy jumped in the water to assist Amy, and defendant called to them to assist the other boat. Nora boarded the other boat and had her husband call 911. Nora helped move the two youngest Furman children to another boat and applied a towel to the oldest boy to try to stop his bleeding. Defendant and another woman began giving CPR to Lance. The Renterias boat towed the Furmans boat back to shore. Nora was briefly interviewed later by the sheriffs department, but she was not ever asked about the circumstances of the accident until the day before trial, when the district attorney interviewed her.
Moses testified that defendants lights had been on when their boats left the marina. Moses was going 25 to 30 miles per hour, and defendant was following about 50 feet behind. Moses told officers after the accident he had not seen or heard the Furmans boat before the collision and had never seen its lights. Defendant had been drinking that day, but he was not under the influence or drunk. Defendant actively helped with the efforts to aid the Furmans, including giving CPR to Lance.
William Rhetts, a state-licensed private investigator and former police officer, testified as to what a thorough investigation of a boating collision would have entailed, including securing both vessels, the point of impact, and the lake floor surrounding the collision so that a dive team might search for evidence. He would have had a certified forensic expert who specialized in lighting and electrical outlets in a boat test the equipment and video record the tests. Rhetts had been unable to examine either boat; defendants boat had been transferred to a salvage company and was gone when Rhetts had sought to examine it. The Furmans boat had been transferred to Allen Marine, whose owner would not grant Rhetts access.
Defendant testified in his own behalf. He had consumed about four beers over a five-hour period on the afternoon of the accident. Defendant had then weighed 210 pounds, and, he was not feeling under the influence. At dinner, he had a shot of vodka and a Red Bull. After they left the marina, he made sure the light stick was securely mounted and crawled out on the bow to make sure the rest of the lights were illuminated. He was following about 75 feet directly behind the Renterias boat. He had left the channel and was headed toward the center of the lake when "[a]nother boat just crossed right in between us and my boat went right up, over the top of it, and flipped upside down and landed in the water." He had seen the other boat just before the impact, and it had no lights.
Defendant had turned to the right as hard as possible to try to avoid the collision. After the collision, defendant helped Amy and called to Moses to check on the other boat. After other boats arrived and assisted with the rescue, defendant helped a nurse administer CPR to Lance.
Arizona park rangers arrived, and defendant got on their boat and helped them find the location of the accident so they could search for anyone who might still be in the water. Later, when defendant was with Mojave County Sheriffs deputies, one of the deputies questioned him harshly. When Deputy Smith administered the field sobriety tests, defendant was "shaking like a leaf," and his adrenaline was "through the roof." Defendant denied that any part of his lighting system had been wired with speaker wire.
Defendant had undiagnosed diabetes at the time of the accident, and at time of trial, he was taking insulin for the condition. Defendant admitted a conviction for strong-arm robbery in 1990.
B. Jury Verdicts and Sentence
The jury found defendant guilty as charged and found the great bodily injury enhancement allegations true. In a bifurcated proceeding, defendant admitted the prior conviction allegations.
The verdict forms did not specify whether the great bodily injury findings were made under Penal Code section 12022.7, subdivision (a), or Vehicle Code section 23558.
The record does not contain the proceedings relating to defendants admission of the prior conviction allegations. The record does show that in a motion to strike the prior strike, defendant admitted having incurred both the prior strike conviction and the prior conviction for driving under the influence.
The trial court sentenced defendant to 20 years on count 1 (10 years, doubled under the "Three Strikes" law) and consecutive terms of one year four months for each of counts 2 and 3. The court imposed consecutive enhancements of one year on count 1 and four months for each of counts 2 and 3 under Vehicle Code section 23558. Off the record, and on its own motion, the trial court struck the enhancement allegations under Penal Code sections 12022.7, subdivision (a) and 1192.7, subdivision (c), and Vehicle Code section 23556, subdivision (a).
III. DISCUSSION
A. Exclusion of Evidence Concerning Victims Drug Use and Lifestyle
Defendant contends the trial court erred in excluding evidence that Lance had methamphetamine in his system at the time of his death and that he had an "aggressive, risk-taking lifestyle, as indicated by statements on his website." Defendant claims such evidence was crucial to his defense that Lances actions were the sole cause of his own death because defendant was "proceeding downstream in an innocuous manner . . . when Furman, a methamphetamine-crazed jet boat jockey came flying out of nowhere from the shore and crashed into him."
1. Background
Defendant moved before trial to set aside the information or to reduce the charges to misdemeanors on the ground, among others, that Lances actions were the actual cause of the accident. Defense counsel argued that Lance had alcohol and methamphetamine in his system and had plowed into defendants boat at a high rate of speed, while defendant was proceeding straight downstream with the current. The trial court denied the motion, explaining, "[I]f there are other contributing causes to the accident and to the death, including the victims own negligence or unlawful acts, that is not a defense if the defendants acts nevertheless constitute an unlawful act and gross negligence."
The prosecution later moved in limine to exclude any evidence of Lances drug use and other illegal activities on the ground such evidence was irrelevant, in that the negligence of the victim is not a defense to a criminal charge. Defense counsel argued such evidence was relevant on the issue of causation, and the defendants position was that Lances actions had caused the accident. The trial court granted the motion to exclude the evidence.
Later during trial, defense counsel proffered the testimony of Dr. Vina Spiehler, a board certified forensic pharmacologist, as an expert witness on the effects of methamphetamine on conduct, and specifically on the issues of a users ability to judge distance and speed and on Lances driving. The trial court conducted a hearing under Evidence Code section 402 as to the admissibility of her testimony.
At the hearing, Dr. Spiehler testified that Lance had a methamphetamine level of 1.2 mg/liter and an amphetamine level of .12 mg/liter in vitreous fluid taken from the back of his eye after his death. She testified those were "high levels," which indicated use within hours or days. She would expect a person who had recently used methamphetamine to be experiencing stimulant effects from the drugs. She explained that the users "internal clock [is] speeded up so you think everybody else is going slower than they are, and you think youre going slower than you are. Youre not aware of how fast youre actually going." Dr. Spiehler acknowledged she could not determine when or how Lance had used methamphetamine, what tolerance he had to the substance, or how specifically it had affected him. Rather, she could testify only as to the drugs general effects.
The trial court excluded the evidence because there were "too many unknowns" and because there was not "enough supporting evidence to show that there would be an issue of causation in this particular case." After the verdicts, defendant filed a motion for new trial on the ground, among others, that the trial court had prejudicially erred in excluding evidence of Lances drug use. The trial court denied the motion.
2. Standard of Review
The trial court has broad discretion to determine the relevance of evidence and to exclude evidence it deems irrelevant, confusing, cumulative, or unduly prejudicial. (People v. Weaver (2001) 26 Cal.4th 876, 933.) We review the trial courts ruling on the admissibility of evidence under the abuse of discretion standard, and we do not reverse the trial courts ruling unless the trial court exercised its discretion in an "arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice [citation]." (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.) The defendants right to present evidence "does not require `the court [to] allow an unlimited inquiry into collateral matters . . . ." (People v. Ayala (2000) 23 Cal.4th 225, 282.) And, in exercising its discretion whether to permit evidence of a victims drug use, the trial court "is not required to admit evidence, such as cocaine or marijuana use, `that merely makes the victim of a crime look bad." (People v. Hillhouse (2002) 27 Cal.4th 469, 496.)
3. Evidence of Lances Methamphetamine Use
To support his argument that the trial court erred in excluding evidence of Lances methamphetamine use, defendant relies on People v. Wright (1985) 39 Cal.3d 576 (Wright), in which the Supreme Court held the trial court had erred in excluding evidence that a murder victim had heroin and its metabolites in his system at the time of his death. The defendant testified he had shot the victim after he saw the victim reach toward his back pocket for what the defendant believed was a weapon. (Id. at p. 582.) The defendant further stated he had believed the victim was acting irrationally and might have been under the influence of a drug. The defendant had offered the evidence to show that the victim had been under the influence of a narcotic and was therefore more likely to have acted irrationally and aggressively, consistent with the defendants testimony about self-defense. (Id. at p. 583.) The Supreme Court concluded the excluded evidence had significant probative value because it corroborated the defendants testimony about self-defense and also impeached the testimony of the victims wife that the victim had not used drugs for two years. In addition, a prosecution expert witness had testified that the victim did not have heroin in his blood at the time of the shooting. (Id. at pp. 582-583.) The Supreme Court nonetheless found that the error in excluding such evidence was harmless. (Id. at pp. 583-585.)
Here, the trial court held that evidence of Lances methamphetamine use was inadmissible because the relevant issues for the jurys determination related to how Lance operated the boat, not why he took the actions he did. More specifically, the jury was required to determine if Lance was operating the boat in compliance with the Navigation Rules, and it was beside the point whether his decision-making process was somehow influenced by methamphetamine in his system. We agree that Wright is therefore distinguishable. Moreover, in this case, unlike in Wright, evidence of Lances methamphetamine use was not offered for impeachment.
Defendant argues, however, that evidence of Furmans drug use and character was highly relevant to assist the jury in determining what his conduct had been, and therefore how the accident had been caused. Defendants theory at trial was that his boat and the Renterias boat had been proceeding downstream in tandem when the Furmans boat tried to cross between them at a high rate of speed, and that conduct was the sole cause of the accident. Defense counsel argued that because "the Furman boat went between two boats in tandem, this [was] not a crossing situation," and defendant argues on appeal that "[t]he prejudice from the exclusion is apparent from the all-too-likely jury inference that no one in their right mind would attempt a dangerous crossing between two other boats as they moved downstream." Defendant contends Deputy Smith acknowledged that in a river, the crossing boat is the give-way vessel. It is true that during cross-examination, defense counsel posed the hypothetical of two boats coming down a river at night, and one boat crossing the river, and Deputy Smith acknowledged that the boat going across the river would be the give-way vessel. He explained, "It would follow the [Navigation] rule number 9, channel [sic] the vessels that are ascending or descending down the main channel of the river, would be the stand[-]on or the privileged vessel. And the vessel that is crossing the river would be the give[-]way vessel in a river situation, narrow channel, and that is a hypothetical situation."
However, defendant has failed to show that the hypothetical bore any relation to the facts of the instant case. Although Lake Havasu may be a reservoir formed by the damming of the Colorado River, the witnesses consistently described the accident scene as being on the lake, not a river. Defendant himself testified his boat had left the mouth of the river and had entered the lake. Undisputed testimony established that the collision took place at a point where the lake was about two and one-half miles wide, about two miles south of where the mouth of the Colorado River dumps into the lake. There was no evidence suggesting that the site of the accident was a narrow channel. In fact, defense counsel represented that the area where the collision occurred was a lake — in questioning Deputy Smith, defense counsel stated, "Now, lets talk about across the lake. Lets talk about this particular situation where we have a wide — well, talk about the wider body of water because thats actually where we are. Lets talk about crossing the lake. You have two boats going down the lake in essence and you have going from north to south and you have a boat coming from west to east. [¶] Is that boat coming from west to east allowed to go between two boats?" (Italics added.) Deputy Smith was unable to answer the question because the information was incomplete. Thus, we agree with the trial court that there was no real issue of causation in this case.
Defendant asserts that the trial court erred in precluding defense counsels efforts to cross-examine Deputy Smith. However, other than noting that the trial court sustained an objection, on the basis that the underlying facts were not in evidence, to the question, "And we also know he [Lance] was cutting between two boats, correct?" and to a follow-up hypothetical, again on the ground that there were "some facts left out," defendant has not further developed his argument.
Defense counsel also attempted unsuccessfully to elicit testimony from Deputy Miller about crossing rules pertaining to rivers. In cross-examining Deputy Miller, defense counsel asked, "Is a vessel allowed to cut between two vessels?" Deputy Miller replied that the question did not give him enough information. The following exchange then occurred:
"[Defense counsel]: You have two vessels, two partner vessels, a lead vessel and rear vessel, okay?
"A. Okay.
"Q. And they are going down river — up river. They are going up river. And now you have another vessel coming across the lake.
"A. You are saying river and lake. There is a difference. River is the Colorado River which narrows up into the Topock gorge area. The lake area is an open basin area.
"Q. Is there a difference?
"A. I am just trying to get it straight as to which part of the river you are talking about or the lake.
"Q. I am sorry. Well let me ask you then, is there a difference between Navigational Rules as to rivers and lakes?
"A. It depends on how wide the river is, how wide the river there would be. But if there is not, then there is not — the same rules apply.
"Q. Okay. So — and so if there is a wide enough river, the person going across the river is supposed to give way to the vessels traveling with or against the flow of the river, correct? [¶] Did I ask the question unartfully [sic]?
"A. I dont believe there is anything that says that if they are flowing with the river they have the right-of-way, and if there is a crossing river, they dont have the right-of-way."
The trial court then sustained the prosecutors objection "as irrelevant because it pertains to a river anyway," and the trial court directed defense counsel to "[s]tick to the facts of this case."
Moreover, Dr. Spiehler acknowledged she could not testify how Lance had used methamphetamine, when he had used it, if he had developed a tolerance for it, or how it had affected him at the time of the collision. Rather, she could testify only as to how the drug affected people in general. The trial court properly determined that such evidence would not be helpful to the jury. We conclude the trial court did not abuse its discretion in excluding evidence that Lance had methamphetamine in his system.
4. Evidence of Lances Lifestyle
Defendant next further claims the trial court erred in excluding evidence of Lances "aggressive, risk-taking lifestyle and attitudes, as indicated by statements on his website." The record contains no offer of proof as to the specific evidence defendant sought to introduce, although in arguing defendants motion for new trial, defense counsel referred to pictures from Lances website showing Lances children on motorcycles; the children purportedly were not wearing helmets. Defense counsel also stated that the website stated, "Live as if you are dying."
We conclude the trial court acted within its discretion in excluding such evidence. Neither the slogan nor the photographs of the children without helmets was relevant to any issue at defendants trial. And to the extent defendant sought to introduce other evidence of Lances lifestyle, "any claim that evidence was wrongly excluded cannot be raised on appeal absent an offer of proof in the trial court." (People v. Pride (1992) 3 Cal.4th 195, 235.) Having failed to make such an offer of proof, defendant may not raise the issue on appeal.
5. Right to Present a Defense
Defendant argues that the trial courts distinction between admitting evidence of Lances conduct in operating his boat but excluding evidence of his risk-taking character and methamphetamine use was incompatible with defendants constitutional right to present a defense because there was no "comprehensive and indisputable evidence of the parties actual conduct," and the jury was required to infer from circumstantial evidence how the events had transpired. Citing Evidence Code section 1103, defendant argues that Lances character and drug use were in fact relevant to the jurys determination of what his conduct had been at the time of the accident.
Under Evidence Code section 1103, "(a) In a criminal action, evidence of the character or a trait of character (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) of the victim of the crime for which the defendant is being prosecuted is not made inadmissible by Section 1101 if the evidence is:
"(1) Offered by the defendant to prove conduct of the victim in conformity with the character or trait of character."
The California Supreme Court has rejected the argument that the exclusion of evidence violates a defendants constitutional right to present a defense. Rather, the court held that application of the basic rules of evidence, including the rule granting the trial court discretion to exclude evidence it finds more prejudicial than probative, does not violate a criminal defendants constitutional rights. (People v. Phillips (2000) 22 Cal.4th 226, 238.) We likewise hold that the exclusion of evidence did not violate defendants constitutional rights.
B. Instructions on Causation
Defendant contends the trial court erred in failing to instruct the jury on the issue of superseding and intervening causation, i.e., that an unforeseeable intervening cause may cut off criminal liability. Specifically, defendant argues the jury should have been instructed along the lines of the principle stated in People v. Brady (2005) 129 Cal.App.4th 1314 (Brady): "The act of another constitutes a superseding cause precluding responsibility of the initial actor only if the others conduct is both unforeseeable and causes harm that was not the foreseeable consequence of the initial actors conduct." (Id. at p. 1328.)
1. Background
The trial court instructed the jury on causation with CALCRIM No. 240 (Causation) as follows: "An act causes injury, if the injury is the direct, natural, and probable consequence of the act and the injury would not have happened without the act. A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all the circumstances established by the evidence. [¶] An act causes injury only if it is a substantial factor in causing the injury. A substantial factor is more than a trivial or remote factor. However, it does not have to be the only factor that causes the injury." Substantially similar language was repeated in another instruction, CALCRIM No. 2100 (Driving Under the Influence Causing Injury). Finally, the jury was instructed with CALCRIM Nos. 590 (Gross Vehicular Manslaughter While Intoxicated), 592 (Gross Vehicular Manslaughter) and 593 (Misdemeanor Vehicular Manslaughter — Ordinary Negligence), all of which contained substantially similar language with respect to causation of death.
2. Forfeiture
The People argue that defendant has forfeited the issue of instructional error because he did not object at trial to any of the instructions or request any clarifying instruction regarding causation. "[A] claim of instructional error is not cognizable on appeal if the instruction is correct in law and the defendant fails to request a clarification instruction." (People v. Guerra (2006) 37 Cal.4th 1067, 1138, disapproved in part on other grounds by People v. Rundle (2008) 43 Cal.4th 76, 151.) However, claims of instructional error may be entertained for the first time on appeal if they implicate the defendants substantial rights. (People v. Thornton (2007) 41 Cal.4th 391, 434 fn. 7.) We will therefore address the issue on the merits.
3. Standard of Review
We review de novo whether the jury instructions given correctly stated the law. (People v. Posey (2004) 32 Cal.4th 193, 218.) "In assessing whether the jury instructions given were erroneous, the reviewing court `"`must consider the instructions as a whole . . . [and] assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given. [Citation.]" [Citations.]" (People v. Guerra, supra, 37 Cal.4th at p. 1148.)
4. Analysis
In Brady, the court held that the principles governing a defense based on superseding cause in a criminal case are the same principles of causation that apply in tort law. (Brady, supra, 129 Cal.App.4th at p. 1324.) The court explained, "`"In general, an `independent intervening cause will absolve a defendant of criminal liability. [Citation.] However, in order to be `independent the intervening cause must be `unforeseeable . . . an extraordinary and abnormal occurrence, which rises to the level of an exonerating, superseding cause. [Citation.] On the other hand, a `dependent intervening cause will not relieve the defendant of criminal liability. `. . . If an intervening cause is a normal and reasonably foreseeable result of defendants original act the intervening act is "dependent" and not a superseding cause, and will not relieve defendant of liability." [Citations.] `"[W]here [an] injury was brought about by a later cause of independent origin . . . [the question of proximate cause] revolves around a determination of whether the later cause of independent origin, commonly referred to as an intervening cause, was foreseeable by the defendant or, if not foreseeable, whether it caused injury of a type which was foreseeable. If either of these questions is answered in the affirmative, then the defendant is not relieved from liability towards the plaintiff; if, however, it is determined that the intervening cause was not foreseeable and that the results which it caused were not foreseeable, then the intervening cause becomes a supervening cause and the defendant is relieved from liability for the plaintiffs injuries." [Citation.] Thus, `[t]he defendant remains criminally liable if either the possible consequence might reasonably have been contemplated or the defendant should have foreseen the possibility of harm of the kind that could result from his act. [Citations.]" (Brady, supra, 129 Cal.App.4th at pp. 1325-1326.)
We agree with the Brady courts discussion of the issue. However, in our view, the instructions given adequately informed the jury of the governing principles as set forth in Brady. The instructions informed the jury that a natural and probable consequence of an act is "one that a reasonable person would know is likely to happen if nothing unusual intervenes." (Italics added.) The jury heard that language at least five times. Moreover, the jury was further informed at least five times that the defendants conduct had to be a substantial factor in causing the victims death, but that the defendants conduct did not need to be the only factor that caused death. Under the instructions given, the jury could not have convicted defendant if it found that something unusual had intervened, if it found Lances conduct was the sole cause of the accident, or if it found defendants conduct was not a substantial factor. Thus, the instructions given were fully consistent with Brady, and no further instruction on the issue was required.
5. Harmless Error
Even if we were to assume for purposes of argument that the trial court erred in failing to give a specific instruction on superseding causation, we would find such error harmless. Instructional error is not reversible unless it is reasonably probable the result would have been more favorable to the defendant in the absence of the error. (People v. Bloyd (1987) 43 Cal.3d 333, 352.) Here, even if Lances conduct was a contributing cause to the collision, such conduct was not enough to cut off defendants liability for his actions. Rather, defendant was liable so long as the collision was a reasonably foreseeable consequence of his actions. (People v. Cervantes (2001) 26 Cal.4th 860, 871.)
The evidence established that defendant was operating his boat in violation of several rules of navigation. He failed to give way to the Furmans boat, he was under the influence of alcohol, he failed to maintain a proper lookout, and the jury could reasonably have found he failed to use proper lighting. The collision with the Furmans boat was a reasonably foreseeable consequence of that conduct. Even if the trial court had given more specific instructions on superseding and intervening causation, it is not reasonably probable the outcome of the trial would have been any different. (People v. Bloyd, supra, 43 Cal.3d at p. 352.)
C. Prosecutors Comments on Burden of Proof
Defendant contends the prosecutor committed misconduct by "denigrating" the beyond-a-reasonable-doubt burden of proof in his argument to the jury.
Defendant also appears to argue that his counsel provided ineffective assistance by failing to "intercede and remedy the misconduct." Defendant has failed to develop the argument, other than by citing People v. Hill (1998) 17 Cal.4th 800, 820, for the general principle that defense counsel had a duty to object to the prosecutors argument. To the extent defendant has raised the issue of ineffective assistance of counsel, his argument fails because defendant has failed to establish that his counsels failure to object resulted in prejudice. (See People v. Turner (2004) 34 Cal.4th 406, 420, citing Strickland v. Washington (1984) 466 U.S. 668, 687.)
1. Background
During his closing argument, the prosecutor discussed reasonable doubt and the prosecutions burden of proof as follows: "Do you remember at the very beginning when the attorneys had a chance to talk to you while were picking this jury? You were asked, do you understand that reasonable doubt is a heavy burden? Some of you said yes. Well, the truth of the matter is, its not a heavy burden. You need to find [defendant] guilty beyond a reasonable doubt. What does that mean? That means that if you are thinking right now and after your deliberations that he did it, youre done. Thats guilty. He did it. Thats guilty. [¶] If youre thinking, he did it, but you cant put a name to your thought. You dont know what it is. Youre just saying he did it, but something. Thats not reasonable doubt. That means you come back with a guilty verdict. If you cant even label what your concerns are, thats not reasonable doubt." Defense counsel did not object to the argument.
Later, the prosecutor stated, "Beyond a reasonable doubt is not a heavy burden. If youre thinking he did it, youre done. If youre thinking anything else, examine what that doubt that you have is. If you can name that doubt, examine that doubt, and then say, but is it reasonable? Remember, one of the jury instructions youre going to hear [is] going to say that reasonable doubt has to do with the abiding conviction, the abiding belief and conviction. So if youre thinking that he did it, then thats the truth of what the case is. Have a reasonable doubt, examine that doubt. But the abiding conviction that you have in this case is what the truth is." Again, defense counsel did not object.
In argument, defense counsel discussed the burden of proof as follows: "If you find that it was the Furman boat who didnt exercise their duty as a reasonable boater on that lake, you cannot find my client guilty. Reasonable doubt. Its not beyond any doubt. Its more than 50 percent, though. If you find that theyre equally at fault, thats not guilty. If you find that maybe my client was a little bit more guilty than the Furman boat, thats still not reasonable doubt. Reasonable doubt is well up into the 90 percent certainty.
"Ive been asked: How do you decide what reasonable doubt is? How do you decide what beyond a reasonable doubt is? If you stay awake at night and go, you know what, I just dont know what it is. I just dont know which way it is. That is reasonable doubt. If you wake up in the morning after tossing and turning and thinking about it and saying, God, I just dont know which is it. That is reasonable doubt.
"My client is not guilty unless you can come into these seats and sit there and look us in the eye and say, I believe with an abiding certainty that, [defendant], your actions were so grossly beyond what a reasonable person would have done in a same or similar situation. If you cannot do that, that is reasonable doubt."
In rebuttal, the prosecutor argued, "Reasonable doubt has no number. It is not 50 percent. It is not 90 percent. When you get your jury instructions, take a look at number 103. It doesnt give you a number. What you need to do is determine whether or not you have an abiding conviction that the charge is true. Thats what reasonable doubt is. It could be different for each one of you.
"Instruction 103 is also going to tell you that in deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the trial. The People presented you with a case, and they presented to you [sic] with evidence. The defense actually put on a defense. They called in witnesses. Several. They presented you with evidence as well. What you do is you take the evidence that you received, and you decide whether or not that what the evidence that you have is [defendant] guilty beyond a reasonable doubt." Defense counsel did not object to the argument.
2. Analysis
A prosecutors misstatements of the law may constitute error (People v. Hill, supra, 17 Cal.4th at pp. 829-830), and such error is prejudicial if it "`"so infected the trial with unfairness as to make the resulting conviction a denial of due process" [Citation.]" (People v. Lucas (1995) 12 Cal.4th 415, 473) or involved "`deceptive or reprehensible methods to persuade the jury." (People v. Lopez (2008) 42 Cal.4th 960, 965.) When the defendant contends the prosecutor erred in remarks to the jury, to prevail, "`"the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner."" (People v. Jablonski (2006) 37 Cal.4th 774, 835.) Even when a defendants claim focuses on particular words, phrases, and sentences, this court must "view the statements in the context of the argument as a whole." (People v. Dennis (1998) 17 Cal.4th 468, 522.) In doing so, we "`do not lightly infer that the jury drew the most damaging rather than the least damaging meaning from the prosecutors statements. [Citation.]" (People v. Frye (1998) 18 Cal.4th 894, 970.)
Here, we see no reasonable likelihood the jury applied the prosecutors argument improperly or erroneously. In the context of the entire argument, it appears the prosecutor was merely explaining, even if inartfully, that if the jury had no doubt about defendants guilt, it should convict him, and if it had a doubt, it should carefully consider whether that doubt was reasonable. Moreover, the prosecutor specifically referred the jury to the instruction on reasonable doubt. The trial court properly instructed the jury on reasonable doubt under CALCRIM No. 103 and further instructed the jury to follow the courts instructions in the event of any conflict between those instructions and statements of counsel as to the law. In the absence of a showing to the contrary, we presume the jury understood and applied the instructions read to them. (People v. Smithey (1999) 20 Cal.4th 936, 961.) We therefore reject defendants claim of prosecutorial misconduct.
IV. DISPOSITION
The judgment is affirmed.
We concur:
RAMIREZ, P.J.
KING, J.