Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County. Ct. No. GA059416, Candace J. Beason, Judge.
Cynthia L. Barnes, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel and David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.
WOODS, Acting P.J.
Dale Bernhard appeals his conviction of vehicular manslaughter without gross negligence under Penal Code section 192, subdivision (c)(2). Appellant contends: (1) the trial court violated his Sixth Amendment right of confrontation and abused its discretion under Evidence Code section 780 when it restricted the cross-examination of a witness; (2) the court erred when it failed to modify the CALJIC instruction pertaining to the charge; and (3) the evidence was insufficient to support his conviction. As we shall explain, appellant’s claims do not warrant a reversal. First, appellant failed to preserve his Sixth Amendment claim in the trial court and has not demonstrated prejudicial error under state law. Second, appellant has not shown the CALJIC instructions failed to convey the proper elements of Penal Code section 192, subdivision (c)(2). Finally, appellant’s conviction was amply supported by eyewitness accounts of the accident and physical evidence. Consequently, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Jared Miller and Jenna Olson were co-workers at Angeles Crest Christian Camp in the mountains. On February 20, 2004, Miller picked Olson up in his car and drove on the Angeles Crest Highway towards the camp. The two lane highway was known to be dangerous and the site of many automobile accidents; the route has many curves as it winds up the mountain side. Rain had fallen earlier in the day on the 20th, but the rain had stopped by the time Miller and Olson travelled on the road.
Respondent incorrectly refers to Jenna Olson as Jenna Olsen in his brief.
Miller drove eastbound, uphill; his lane was directly adjacent to the guardrail which separated the road from the valley below. At the same time, appellant, a Forest Service employee driving a Forest Service truck proceeded downhill in the westbound lane which ran next to the side of the mountain. As the cars approached each other, appellant’s truck crossed the center double yellow lines and struck Miller’s car on the driver’s side.
Officer Jong Kwan Kim, an off-duty police officer, and his wife were in the car behind appellant. At one point Officer Kim lost sight of appellant’s truck when it rounded the curve. After he rounded the curve, Officer Kim saw the accident, sent his wife to seek help, and went to assist Miller. The driver’s side of the car had been “ripped out,” and Miller was unconscious, bleeding, and leaning out of the side of the car. Officer Kim removed Miller from the car and placed him on the ground. Olson was trapped in the passenger side and was conscious but dazed and bleeding.
Miller was initially breathing, but his breathing slowed and stopped, and at one point, Officer Kim was unable to find Miller’s pulse. Ultimately Miller died as a result of his injuries. Olson recovered. Appellant was uninjured and spoke with several emergency personnel and a law enforcement officer at the scene of the accident.
Investigators from the California Highway Patrol (CHP) and its Multi-Disciplinary Accident Investigation Team (“MAIT”) also arrived and conducted an investigation of the accident.
Appellant was arrested and charged on one count of felony vehicular manslaughter. The information was later amended to a misdemeanor charge of vehicular manslaughter, in violation of Penal Code section 192, subdivision (c)(2).
At trial, appellant claimed that Miller crossed the center lines and struck his car. Appellant testified that he was driving at the speed limit, saw Miller cross into his lane, and that he did not apply his brakes because he was worried that his car would slide on the wet road. Others, including Olson, several emergency personnel, and the accident investigators, presented testimony and evidence indicating that appellant, not Miller, crossed the center lines and caused the accident. During Olson’s cross-examination, appellant’s counsel attempted to question her about the civil lawsuit she had filed against appellant. The judge prohibited that line of questioning, though she did allow appellant to ask Olson whether she had hired a civil lawyer.
The jury found appellant guilty of vehicular manslaughter, and this appeal followed.
DISCUSSION
Before this court, appellant asserts three claims of error: (1) the court erred in restricting his efforts to cross-examine Olson concerning her civil action; (2) the court misinformed the jury on the elements of vehicular manslaughter under Penal Code section 192, subdivision (c)(2); (3) the evidence was insufficient to support his conviction. We address each of these contentions in turn.
I. Cross-examination of Olson
Appellant contends that the trial court erred by restricting cross-examination of Olson under Evidence Code section 780 and that this restriction violated his Sixth Amendment constitutional right to confrontation. As we shall explain, however, appellant forfeited his constitutional claim of error. In addition, appellant has failed to demonstrate prejudicial error as a result of any violation of Evidence Code section 780.
Although the terms “forfeiture” and “waiver” have been used interchangeably, the United States Supreme Court has differentiated them, stating “Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the ‘intentional relinquishment or abandonment of a known right.’” (United States v. Olano (1993) 507 U.S. 725, 733.) The California Supreme Court has incorporated this distinction. (See e.g. In re Sheena K (2007) 40 Cal.4th 875, 881, fn. 1; People v. Saunders (1993) 3 Cal.4th 580, 590, fn. 6.) Accordingly, we refer to appellant’s action as a forfeiture.
During trial, appellant’s counsel began to question Olson about her civil suit. The prosecution objected on relevance grounds, and the court sustained the objection. Both attorneys approached the bench, and appellant’s counsel stated:
“I was not going to – I was not going to ask any specifics other than the fact that she does have a civil suit against Mr. Bernhard and the forest service. I think that does comes [sic] into bias in terms of her credibility. I wasn’t going to ask anything about the amount of money that is being sought or any other specifics other than that one simple question.”
The next day, outside the presence of the jury, appellant’s counsel revisited the topic of Olson’s civil suit:
“[Counsel]: I have one additional issue. It is regarding the court’s ruling as to questioning on Miss Olson’s civil suit.
“The Court: Yes.
“[Counsel]: I had an opportunity to review the Evidence Code and I specifically reviewed
“The Court: I know it goes – can go to the issue of bias if there is anything pending. I didn’t think it was outrageous conduct, as Ms. Ratliff had indicated, and that frequently does happen. I think the reference to the fact she has an attorney, that’s fine. Okay.
“[Counsel]: I just – for the record, I just – I feel it’s a well established position, the principle. And all the parties know that if Mr. Bernard is convicted in this case, he may be stopped in a civil case from claiming that he was not responsible for these damages. [¶] So the conviction in this case could be used against him in his civil case. So I think that alone is enough to bring up a specter of bias for the purposes of the Evidence Code.
“[The Court]: I think the one question, do you have a civil attorney connected with this, is fine, okay.
“[Counsel]: Thank you.”
Constitutional Claim
The purpose of the forfeiture rule is to encourage parties to bring errors to the attention of the trial court so that they may be corrected. (In re Sheena K. (2007) 40 Cal.4th 875, 881.) A defendant who fails to challenge an erroneous ruling of the trial court in that court has forfeited his or her right to raise the claim on appeal. (Ibid.; see also People v. Saunders (1993) 5 Cal.4th 580, 589-590.) Forfeiture applies to claims of federal constitutional error in this context. (See People v. Thornton (2007) 41 Cal.4th 391, 427 [Applying forfeiture to appellant’s claim that the trial court’s ruling to exclude evidence of witness bias had the additional consequence of depriving him of his right to confront the witnesses against him under the confrontation clause of the Sixth Amendment to the federal constitution because appellant did not raise Sixth Amendment claim in the trial court].)
While appellant’s counsel did not specifically refer to Evidence Code section 780 in the trial court his comments indicate he was intending to have the evidence admitted pursuant to that evidence code section. Nothing in the record before us, however, discloses that counsel tried to establish an additional constitutional basis of admission for the testimony. Nor does appellant cite any authority for the proposition that seeking admission under state law rules of evidence, necessarily includes and preserves a federal constitutional claim of error. Thus, because appellant’s counsel objected to the court’s ruling solely on the basis of bias (i.e., Evid. Code, § 780) and failed to assert an additional constitutional right or error, appellant forfeited his constitutional claim.
State Law Claim
In arguing that the trial court erred in precluding him from asking Olson about the civil lawsuit she filed against appellant and the Forest Service, appellant relies on Evidence Code section 780, which provides, “Except as otherwise provided by statute, the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including .... [¶] ... [¶] (f) The existence or nonexistence of a bias, interest, or other motive.”
“Evidence Code section 780, however, does not ‘say that all evidence of a collateral nature offered to attack the credibility of a witness would be admissible. Under [Evidence Code] Section 352, the court has substantial discretion to exclude collateral evidence. The effect of Section 780, therefore, is to change the present somewhat inflexible rule of exclusion to a rule of discretion to be exercised by the trial judge.’ (Cal. Law Revision Com. com., 29B West’s Ann. Evid. Code (1995 ed.) foll. § 780, p. 587; see People v. Brown (2003) 31 Cal.4th 518, 544-545.)” (People v. Thornton, supra, 41 Cal.4th at p. 428.) This court reviews the court’s ruling under the deferential standard of abuse of discretion. (People v. Benavides (2005) 35 Cal.4th 69, 90.)
In our view this case presents a close question as to whether the court abused its discretion. Evidence that Olson was pursuing a civil action and thus had a pecuniary interest in the outcome of the criminal matter is ordinarily admissible to show bias under Evidence Code section 780. (See People v. Hart (1999) 20 Cal.4th 546, 604-607; People v. Ellena (1924) 67 Cal.App. 683, 690-691.) The court’s action in limiting the evidence of the civil action rather than excluding it altogether indicates the court had rejected the prosecutor’s argument that the evidence was wholly irrelevant. Instead it is clear the court exercised its discretion under Evidence Code section 352, but what is less clear is the court’s basis under Evidence Code section 352. The court rejected the prosecutor’s claim that the evidence was outrageous and the court’s comments do not seem to suggest that it was excluding on the basis of potential jury confusion. Thus, the remaining possible ground centers on the undue consumption of time. However, appellant’s counsel indicated that he did not intend to present all of the details of the civil claim, but merely wanted to apprise the jury of the fact that Olson had filed it. It appears the court’s exercise of discretion under Evidence Code section 352 is without a clear justification and is thus troublesome.
Nonetheless our concern is mitigated in part because the trial court allowed appellant to present evidence Olson had a civil lawyer—a fact from which the jury may have inferred that Olson was pursuing a civil action as a result of the accident or at the very least that she was exploring her options in that regard. Moreover, even if we were to assume that the trial court erred in excluding this evidence, reversal would not be warranted. The evidence against appellant was strong and firmly established his culpability for this accident. The physical evidence and investigators’ testimony overwhelmingly supported Olson’s presentation of the facts, that is, appellant’s vehicle crossed over the double yellow lines, rather than appellant’s claim that Miller was at fault. Hence, even if evidence of Olson’s civil suit would have created different impression of her credibility, the asserted error was harmless. (See People v. Rodrigues (1994) 8 Cal.4th 1060, 1125; People v. Watson (1956) 46 Cal.2d 818, 836.)
II. Instructional Claim of Error
Below when the parties discussed the jury instructions, appellant complained that CALJIC No. 8.90 was confusing because it failed to make clear that the elements of Penal Code section 192, subdivision (c)(2) as charged in this case were: (1) a violation of Vehicle Code section 21460 ; and (2) ordinary negligence. Appellant asked the court to modify the instructions along the lines of CALCRIM No. 593. The People disagreed, arguing that when CALJIC Nos. 8.90, 8.91 and 3.40 were viewed together the jury would understand the requisite elements of the charge. The court denied appellant’s request to modify the instructions because it thought the CALJIC instructions were sufficient and could be further explained during argument. The court also indicated its view that under the circumstances of this case the violation of the Vehicle Code section could be viewed as negligence per se.
The pertinent portion of CALJIC No. 8.90, as read to the jury, states: “In order to prove this crime, each of the following elements must be proved: [¶] 1. The driver of a vehicle committed without gross negligence an unlawful act not amounting to a felony, which under the circumstances of its commission was dangerous to human life, namely, a violation of Vehicle Code section 21460(a); and [¶] 2. The unlawful or negligent act was a cause of the death of another human being.”
Penal Code section 192, subdivision (c)(2) provides: “Manslaughter is the unlawful killing of a human being without malice. It is of three kinds . . . [¶¶] (c) Vehicular -- [¶] (2) Driving a vehicle in the commission of an unlawful act, not amounting to felony, but without gross negligence; or driving a vehicle in the commission of a lawful act which might produce death, in an unlawful manner, but without gross negligence.”
Vehicle Code section 21460 provides in pertinent part: “(a) When double parallel solid lines are in place, no person driving a vehicle shall drive to the left thereof, except as permitted in this section.”
CALCRIM No. 593 states: “To prove that the defendant is guilty of vehicular manslaughter with ordinary negligence, the People must prove that: [¶] 1. The defendant (drove a vehicle/operated a vessel); [¶] 2. While (driving that vehicle/operating that vessel), the defendant committed (a/an) (misdemeanor[,]/[or] infraction[,]/[or] otherwise lawful act that might cause death); [¶] 3. The defendant committed the [misdemeanor[,]/[or] infraction[,]/[or] otherwise lawful act that might cause death) with ordinary negligence; [¶] AND [¶] 4. The defendant’s negligence conduct caused the death of another person.”
CALJIC No. 8.91 provides: “Negligence is doing something which a reasonably prudent person would not do, or the failure to do something which a reasonably prudent person would do, under similar circumstances. It is the failure to use ordinary or reasonable care. Ordinary or reasonable care is that care which persons of ordinary prudence would use in order to avoid injury to themselves or others under similar circumstances.”
Before this court, appellant contends that the trial court erred when it refused to modify the CALJIC No. 8.90 vehicular manslaughter instructions to indicate that to find appellant guilty under Penal Code section 192, subdivision (c)(2) the jury had to find that he had violated Vehicle Code section 21460, subdivision (a) and that he was also negligent in doing so. He claims that “a simple finding of a strict violation of the vehicle code was all that was required to establish appellant’s guilt.”
In reviewing a claim of instructional error, this court reviews the trial court’s instruction independently. (People v. Alvarez (1996) 14 Cal.4th 155, 217.) The test for judging the adequacy of instructions is to decide whether the trial court fully and fairly instructed on the applicable law. Additionally, we will consider the instructions as a whole and assume that the jury correlated all jury instructions. (People v. Martin (2000) 78 Cal.App.4th 1107, 1111.)
We find no error in the court’s decision. CALJIC instructions, despite the strong preference for CALCRIM instructions, are adequate and legally correct. (See People v. Thomas (2007) 150 Cal.App.4th 461, 465.) The CALCRIM instruction pertaining to the elements of Penal Code section 192, subdivision (c)(2) is clearer than CALJIC No. 8.90. However the instructions are not materially different; they both accurately convey the elements of the crime. In addition, CALJIC No. 8.91 and CALJIC No. 3.40 fully and properly amplify CALJIC No. 8.90. An additional negligence instruction was unnecessary.
In any event, to the extent a separate negligence instruction would have been helpful, its absence is harmless error. The prosecution argued that appellant’s actions were both unlawful and negligent. Throughout the trial, the People argued that appellant’s failure to exercise the care of a reasonably prudent person caused the accident. When it reviewed CALJIC No. 8.90 with the jury, the prosecution identified and explained the element of ordinary negligence. The prosecution defined ordinary negligence for the jury using CALJIC No. 8.91. Furthermore, throughout trial, appellant argued that he never crossed the double lines, that his actions were neither unlawful nor negligent. In this context, a separate negligence instruction fails to help appellant and would have been superfluous.
III. Evidence Supporting Appellant’s Conviction
Finally, appellant contends that the evidence was insufficient to support his conviction. In reviewing the sufficiency of the evidence, we review the whole record in the light most favorable to the judgment and determine whether it contains substantial evidence that would support a finding of guilt beyond a reasonable doubt. (People v. Horning (2004) 34 Cal.4th 871, 901.) We find sufficient evidence supports appellant’s conviction.
Olson testified that just prior to the collision, she saw appellant’s truck cross into their lane, with the front driver’s side tire crossing over the double lines. Detective Kim, who was driving behind appellant, testified that from his perspective, the road curved around the mountain to the right. He lost sight of appellant’s car as it rounded the curve and testified that when he saw it again, it was stopped on the left side of the road, in the other lane. The two CHP investigators also testified that they believed appellant’s truck crossed the lines and struck Miller’s car. Sergeant Steven Pellegrino, the CHP officer who conducted an investigation at the scene, based his conclusion on several factors including that: (1) all the accident debris was in Miller’s lane; (2) the damage to the vehicles; and (3) appellant’s truck made scrape and gouge marks in the road as it collided with Miller’s car and that those marks were located in Miller’s lane. Sergeant Pellegrino further stated that in the thousands of accident investigations he had been involved in he had never investigated an accident involving an automobile where an uphill driver had crossed over the center lines into the oncoming lane of traffic.
Officer Michael Seruga, an investigator with the CHP’s Multi-Disciplinary Accident Investigation Team, also testified that all the physical evidence suggested that the collision happened in Miller’s lane based on the damage to the vehicles, their position in the road after the collision and the gouges in the pavement. He stated that his department declined to conduct a full reconstruction of the accident because, “[i]t was pretty clear from looking at the accident what had occurred and who was at fault.” In view of the foregoing, we conclude substantial evidence supported the conviction and the jury could reasonably find that appellant negligently crossed the double lines and collided with Miller’s car, killing Miller, and injuring Olson.
DISPOSITION
The judgment is affirmed.
We concur: ZELON, J. JACKSON, J.
CALJIC No. 3.40 provides: “To constitute the crime of vehicular Manslaughter without Gross Negligence there must be in addition to the death an unlawful act or omission which was a cause of that death. The criminal law has its own particular way of defining cause. A cause of the death is an act or omission that sets in motion a chain of events that produces as a direct, natural and probable consequence of the act or omission the death and without which the death would not occur.”