Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 03F09762
BUTZ, J.After a jury trial defendant Dalena Latrail Howard was found guilty of vehicular manslaughter without gross negligence while intoxicated (Pen. Code, § 192, former subd. (c)(3) [as amended by Stats. 1998, ch. 278, § 1]), four counts of endangering the life or health of a child (Pen. Code, § 273a, subd. (a)), unlawfully causing bodily injury while driving under the influence of alcohol or other drugs (Veh. Code, § 23153, subd. (a)), and driving without a license (Veh. Code, § 12500, subd. (a)). The jury also found true enhancement allegations that (1) defendant personally inflicted great bodily injury in the commission of a felony (Pen. Code, § 12022.7, subd. (a)); (2) one such injury was to a child under the age of five years (Pen. Code, § 12022.7, subd. (d)); and (3) she caused bodily injury or death to more than one person when driving under the influence of alcohol or other drugs (Veh. Code, § 23558). Sentenced to an aggregate term of six years in state prison, defendant appeals.
Undesignated statutory references are to the Penal Code.
Defendant contends that the trial court erred prejudicially in failing to instruct sua sponte: (1) on the doctrine of superseding cause, (2) on the meaning of “personally inflict” as to the great bodily injury enhancement, and (3) that unanimous agreement on an act endangering the life or health of a child is required to convict defendant of that child endangerment offense. None of the contentions is meritorious and we shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On Saturday evening, October 11, 2003, about 7:20 p.m., at dusk, defendant was driving a Volvo on Florin Road at a high rate of speed. She was going as fast as a police car “flying” to respond to a call with its lights flashing, a lot faster than the customary speed on Florin Road. She was headed west, approaching the intersection of Briggs Drive and Florin. In the front passenger seat was her on-again, off-again domestic partner Andre Robinson, father of her youngest daughter. In the rear passenger seat, were four of defendant’s children (a three-year-old, 10-year-old twins, and an 11-year-old). The rear seat was equipped with three seat belts and two shoulder belts: Two children shared the middle lap belt with the other two wearing the outer seat belts but not the shoulder belts.
Defendant veered the Volvo to the left around a car preceding it in the same lane and then the Volvo veered sharply to the right and collided with a gold Dodge that was stopped at the intersection, on Briggs Drive north of Florin Road. Thereafter, the Volvo continued ahead, over the curb and through a wooden fence into the backyard of the house on the northwest corner of the intersection, where it collided with a tree and stopped.
Robinson died as a result of the collision; all of the children suffered significant injuries. The occupant of the gold Dodge was also injured.
The posted speed limit on the segment of Florin Road where the accident occurred is 40 mph. No skid marks evidencing the application of the Volvo’s brakes were found at the scene. At the scene defendant gave off an odor of alcohol. A preliminary alcohol screening test of her breath at 10:20 p.m. at the hospital indicated a blood-alcohol concentration of 0.03 percent. She told the highway patrol officer who interviewed her that there was nothing mechanically wrong with her vehicle.
A blood test taken at 11:02 p.m. indicated a blood-alcohol concentration of 0.02 percent and that methamphetamine was also in the defendant’s blood. The blood-alcohol levels indicated that at the time of the accident it would have been somewhere around 0.09 percent, though it could range between 0.06 and 0.14 percent, depending upon how fast it was eliminated. A criminalist opined that the combination of drugs would have impaired defendant’s ability to drive.
Defendant testified in pertinent part as follows:
Over the course of their seven-year relationship, Robinson had been violently abusive to her. He kept guns in the house. She had obtained domestic restraining orders but he had disregarded them. He was wont to threaten her with death. She did a line of methamphetamine the day before the accident. She took Vicodin and drank a 24-ounce beer the day of the accident.
On the afternoon preceding the accident Robinson had been agitated, accusing her of having been sexually unfaithful. He insisted that she drive him to see his son from a former liaison. She said no because she had been drinking. He became increasingly agitated. She decided to drive him because she was afraid a neighbor might call the police. (Robinson was subject to arrest on an outstanding felony theft offense warrant.) She feared that might escalate into a situation where Robinson would use firearms against her or others.
She checked that the children were using the seat belts. Although she had a car seat for the three-year-old, she did not use it and had her sharing the middle lap belt with one of the twins. Robinson fell asleep during the drive. She was not driving any faster than 45 to 50 mph. Robinson awoke suddenly, grabbed the wheel, and jerked it to the right. As she tried to regain control the collision occurred. She hit the brake pedal, pushing all the way to the floor, but the car did not stop.
DISCUSSION
I. Superseding Cause
Defendant contends that the trial court erred in failing to instruct sua sponte on the concept of superseding cause. She argues that her testimony that Robinson grabbed the wheel required the trial court to instruct the jury, on its own motion, on that concept. She submits that the jury should have been instructed that if Robinson had caused the car to swerve by grabbing the steering wheel it could find that act, if unforeseeable, a superseding cause of the collision which resulted in the death and injuries and return a verdict of not guilty on that ground. The evidence presents no issue of superseding cause and the trial court was not obliged to so instruct.
We will assume for the sake of discussion that if an issue of superseding cause were presented, the trial court would be obliged to instruct thereon sua sponte. (See People v. Bland (2002) 28 Cal.4th 313, 333-335; People v. Bernhardt (1963) 222 Cal.App.2d 567, 590-591; but see generally, e.g., People v. Saille (1991) 54 Cal.3d 1103, 1118.) However, where, even under the most favorable reading of the facts, the legal concept of superseding cause does not apply, there is no obligation to instruct on that concept. On the facts in this case the only causal issue presented is: Was defendant’s misconduct a substantial factor in causing the various injuries? Robinson’s conduct could not be found to be a superseding cause.
“In law, the term ‘superseding cause’ means ‘an independent event [that] intervenes in the chain of causation, producing harm of a kind and degree so far beyond the risk the original [wrongdoer] should have foreseen that the law deems it unfair to hold him responsible.’ (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 573, fn. 9.)” (People v. Sanchez (2001) 26 Cal.4th 834, 855 (conc. opn. of Kennard, J.) (Sanchez).) As this language suggests, there are two pertinent requirements for an intervening cause to be characterized as a superseding cause: independence and harm outside the risk the defendant engendered.
Where an intervening cause of harm is conduct of a third party, for it to be a superseding cause: (1) it must be such that a reasonable person would consider it unforeseeable, a highly unusual response to the situation that the defendant could have had no reason to expect, and (2) the kind of harm resulting must be different from the kind of harm that could have been reasonably expected from the defendant’s antecedent misconduct. (See Sanchez, supra, 26 Cal.4th at p. 855 (conc. opn. of Kennard, J.); People v. Brady (2005) 129 Cal.App.4th 1314, 1328-1329; 1 Judicial Council of Cal. Civ. Jury Instns. (2007) CACI No. 432.)
It seems most plausible that if Robinson grabbed the wheel, he would have done so in response to defendant, impaired and veering around the car in front of her at a high speed. We would not deem that a highly unusual response to the situation that defendant could have had no reason to expect. However, defendant implied that Robinson was sound asleep and did not grab the wheel in response to her maneuver.
CACI No. 432 (new 2003) states: “[Name of defendant] claims that [he/she/it] is not responsible for [name of plaintiff]’s harm because of the later misconduct of [insert name of third party]. To avoid legal responsibility for the harm, [name of defendant] must prove all of the following: [¶] 1. That [name of third party]’s conduct occurred after the conduct of [name of defendant]; [¶] 2. That a reasonable person would consider [name of third party]’s conduct as a highly unusual or an extraordinary response to the situation; [¶] 3. That [name of defendant] did not know and had no reason to expect that [name of third party] would act in a [negligent/wrongful] manner; and [¶] 4. That the kind of harm resulting from [name of third party]’s conduct was different from the kind of harm that could have been reasonably expected from [name of defendant]’s conduct.” (Italics & bolding omitted.)
The requirements are stated in the Restatement Second of Torts, section 442B: “Where the negligent conduct of the actor creates or increases the risk of a particular harm and is a substantial factor in causing that harm, the fact that the harm is brought about through the intervention of another force does not relieve the actor of liability, except where the harm is intentionally caused by a third person and is not within the scope of the risk created by the actor’s conduct.” (Id. at p. 469.) So, for example, one who creates a risk of harm through fire or explosion from accumulation of gasoline vapor is not relieved of liability even when that is occasioned by a proverbial bolt from the blue. (Id., illus. 1, p. 470.)
The claimed misconduct of defendant, driving while impaired by drugs and alcohol, failing to properly secure the children, speeding, and making dangerous turning movements, generated increased risk that if any number of mishaps occurred: (1) she would not have the time, reflexes, or judgment to avoid a collision, and (2) that the incremental momentum of the car or the lack of proper restraint of the children would cause or exacerbate injuries to her passengers. Even if these particular harms, whose risk was created or increased by her misconduct, were occasioned by an unusual mishap, such as Robinson grabbing the wheel, that could not relieve her of liability under the legal theory of superseding cause.
If Robinson did cause the collision, if he was not reacting to defendant’s driving, and if the physics of the situation were such that even an unimpaired driver, traveling at a safe speed for the conditions and with the children properly restrained, would not have been able to avoid the collision and ensuing injuries, then defendant might be found not liable. However, that would not be on the ground of superseding causation, but rather because her antecedent misconduct was not a substantial factor in causing the harm. Superseding causation only comes into play when the defendant’s misconduct is a substantial factor in bringing about the harm. (See, e.g., Rest.2d Torts, § 440, p. 465.) Defendant does not complain of the instruction on substantial factor causation.
For all the foregoing reasons, the contention that the trial court erred in failing to instruct sua sponte on the concept of superseding cause has no merit.
II. Personal Infliction of Great Bodily Injury
Defendant contends the trial court erred in failing to instruct sua sponte on the meaning of “personally inflict” in the great bodily injury enhancements. She argues that, although ordinarily the term is clear enough, here it required elaboration because of the previously discussed issue of superseding causation. She submits that the court was required to instruct that if Robinson was the direct cause of the accident, defendant did not personally inflict the injury. As related, there is no legitimate issue of proximate causation in this case and the contention of error is not meritorious.
As best we can make out defendant’s theory, it is that she deserved an instruction that if Robinson’s act was a superseding cause of the accident then she did not personally inflict the great bodily injuries. However, as we have explained, there is no prospect for superseding cause on this record and we have no occasion to address the claim that an issue of superseding cause would warrant modification of the standard instruction on this enhancement.
Here defendant drove while impaired, bringing the car to a speed exceeding the basic speed law before she veered around a car in front of hers. These volitional acts were the direct cause of the collision and therefore was the direct cause of the injuries. That is all that personal infliction of injury requires. (See People v. Guzman (2000) 77 Cal.App.4th 761, 764.)
Defendant’s contention that the trial court erred in failing to instruct sua sponte on the meaning of “personally inflict” in the great bodily injury enhancements is without merit.
III. Unanimity on an Act of Child Endangerment
Defendant contends that the trial court erred prejudicially in failing to give a unanimity instruction as to the act or acts endangering the children. She argues that she was accused of several different potential wrongful acts endangering the children: (1) driving while impaired, (2) speeding, (3) making a reckless turning movement, and (4) failing to properly restrain the children. She submits that the trial court erred prejudicially in failing to instruct the jury that it must unanimously agree on which one or more of these acts satisfied the requirements of the charged crime.
The Attorney General asserts that the continuous course of conduct exception to the unanimity requirement applies. Defendant replies that the exception does not apply because she proffered “different defenses to different alleged acts,” citing People v. Gonzalez (1983) 141 Cal.App.3d 786, 791, footnote 5 (Gonzalez). The Attorney General has the more persuasive argument.
In People v. Gunn (1987) 197 Cal.App.3d 408, this court noted that there are two threads of the continuous course of conduct exception: “When an accusatory pleading charges a single criminal act, and the evidence shows more than one unlawful act, there is the possibility of a conviction even though the jurors are not in agreement as to the act upon which the conviction is based. [Citations.] It is the general rule in such cases that the prosecution either ‘must select the specific act relied on to prove the charge or the jury must be instructed in the words of CALJIC No. 17.01 . . . that it must unanimously agree beyond a reasonable doubt that defendant committed the same criminal act. [Citations.]’ [Citation.] . . . [¶] In certain narrow circumstances, however, neither election nor instruction is required. This exception actually has two discrete aspects. ‘The first is when the acts are so closely connected that they form part of one and the same transaction, and thus one offense. [Citation.] The second is when . . . the statute contemplates a continuous course of conduct of a series of acts over a period of time. [Citation.]’” (Gunn, at p. 412.)
The underlying basis for the two exceptions is explained in People v. Russo (2001) 25 Cal.4th 1124 (Russo): “The key to deciding whether to give the unanimity instruction lies in considering its purpose. The jury must agree on a ‘particular crime’ [citation]; it would be unacceptable if some jurors believed the defendant guilty of one crime and other jurors believed her guilty of another. But unanimity as to exactly how the crime was committed is not required. Thus, the unanimity instruction is appropriate ‘when conviction on a single count could be based on two or more discrete criminal events,’ but not ‘where multiple theories or acts may form the basis of a guilty verdict on one discrete criminal event.’ [Citation.] In deciding whether to give the instruction, the trial court must ask whether (1) there is a risk the jury may divide on two discrete crimes and not agree on any particular crime, or (2) the evidence merely presents the possibility the jury may divide, or be uncertain, as to the exact way the defendant is guilty of a single discrete crime. In the first situation, but not the second, it should give the unanimity instruction.” (Russo, at pp. 1134-1135.)
The consideration that there are different acts at issue, as to which divergence is possible, is not dispositive. Where one discrete criminal event is at stake there is simply no unanimity requirement as to the theory of guilt. That is so regardless of whether theories of guilt rest on different acts. (Russo, supra, 25 Cal.4th at pp. 1135-1136.)
Defendant relies upon Gonzalez, which says that the continuous conduct exception rests on the circumstance that “the acts testified to are so closely related in time and place that the jurors reasonably must either accept or reject the victim’s testimony.” (Gonzalez, supra, 141 Cal.App.3d at p. 791, fn. 5.) This analysis is incorrect, as it points to a different discrete legal rationale than continuous course of conduct--harmless error. In such circumstance, error in failing to give the unanimity instruction is often held harmless, on the ground that jurors, having agreed on any of the acts in question, could not reasonably have rejected the others. (See, e.g., People v. Brown (1996) 42 Cal.App.4th 1493, 1500-1503.)
The question then is whether this is a case of one discrete criminal event or whether two or more potential discrete crimes were presented. We do not see more than one potential discrete crime of child endangerment as to each child on this record. The question was: Did defendant place the child in a situation where her person or health was endangered, under circumstances or conditions likely to produce great bodily harm or death? (See § 273a, subd. (a).) The hazardous situation at issue was allegedly compounded by more than one delict. However, only one crime was in issue. We do not think it tenable that defendant could have been charged or convicted of more than one offense of child endangerment as to each child. Accordingly, for the reasons already given, there was no requirement to instruct on unanimity as to this offense.
DISPOSITION
The judgment is affirmed.
We concur: DAVIS, Acting P.J. CANTIL-SAKAUYE, J.