Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCR-527351.
Dondero, J.
Defendant was convicted following a jury trial of five counts of vehicular manslaughter while intoxicated without gross negligence (Pen. Code, § 191.5, subd. (b)). He claims in this appeal that his right to a fair trial was denied by the trial court’s erroneous response to a question submitted by the jury during deliberations. We conclude that the trial court’s response to the jury questions was not deficient, and affirm the judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
STATEMENT OF FACTS
The convictions are based on a traffic collision that occurred on Highway 101 near the Airport Boulevard interchange in Sonoma County about 6:00 p.m. on January 19, 2007. Francisco Castro testified that traffic proceeding northbound was “stop-and-go” on the highway, as was “pretty typical for that time of day.” Castro increased and decreased his speed on the highway, depending on the status of the traffic. When Castro approached the Airport Boulevard overpass in the “slow lane” of the highway, he noticed a momentary “gap in traffic, ” followed by a near “standstill” of cars, with brake lights illuminated in both lanes of traffic ahead. Castro reduced his speed from approximately 35 to 15 miles per hour due to the traffic congestion. Both lanes ahead were either stopped or going “really slow, ” probably less than five miles per hour. A Mitsubishi Eclipse driven by defendant approached from behind and “just flew” by Castro, “picking up speed” as the vehicle moved into the “fast lane” to barely avoid a collision with Castro’s car. Castro estimated that defendant’s Eclipse was traveling at least 65 to 75 miles per hour when it passed him.
Defendant’s vehicle did not slow down or leave the road. Castro realized a collision with the stalled traffic ahead was unavoidable. He averted his eyes momentarily but heard a “huge hit” as the Eclipse crashed from behind into one of the nearly stopped vehicles ahead, a purple Honda Civic. The Civic then struck a white Honda Accord driven by Darlene Caruso, who estimated that she was driving between 30 and 40 miles per hour, but braking for the “stop-and-go traffic” in front when the collision occurred. The purple Civic burst into flames. Five occupants of the Civic suffered severe blunt force injuries, but died from the effects of the vehicle fire.
Sonoma County deputy sheriffs, California Highway Patrol officers and paramedics quickly arrived at the scene of the crash. Defendant’s Eclipse was observed by officers in the center divide of the highway, with a deployed air bag and “severe damage to the front end.” Defendant was still in the driver’s seat of the Eclipse. He had a small cut on his nose, but declined an offer of medical attention. The burned Civic was about 50 yards ahead in the number two lane.
When contacted at the accident scene, defendant expressed “concern about the damage to his vehicle and who was going to pay for it, and he kept making comments regarding the injury to his nose.” Defendant was distracted, inattentive, and his comments seemed inappropriate, “considering what had happened, ” although he did not appear to be incoherent. When asked about the accident defendant stated that he “wasn’t entirely sure” what “had happened during the collision, but that he thought he’d been hit from the side by another vehicle.”
During a subsequent interview in a patrol vehicle defendant described the accident thusly: he was in the fast lane of the freeway driving about 55 miles per hour when he observed that the “traffic stopped, ” so he attempted to move to the right, but hit the “white car.” He said that his “mind was on something else, ” and the collision “just happened so quick” that he could not avoid it. Defendant acknowledged that he “should have been a little” more “aware, ” but asserted he was an “innocent passenger in this situation.” Defendant denied that he had taken any drugs or was a drug user.
Field sobriety tests were administered to defendant. He had difficulty following directions, his speech was slow and slurred, his blood pressure was elevated, his perception of events was impaired, and he had difficulty maintaining his balance. The officers at the accident scene thought defendant exhibited “some characteristics of somebody that was under the influence of some type of controlled substance” or alcohol. Defendant also voluntarily agreed to give a blood sample, which tested positive for cocaine, marijuana and methamphetamine. Expert opinion testimony was adduced at trial that based on his behavior and the test results defendant ingested marijuana and cocaine not long before the accident, and was under the influence of controlled substances when the accident occurred, to the point that his ability to drive safely was impaired.
Expert testimony was also offered to explain the cause of the accident. An accident reconstruction expert examined the site of the collision and engaged in a reconstruction of the accident. He calculated that the pre-impact velocity of defendant’s Eclipse was greater than 55 miles per hour, and probably at least 62 to 72 miles per hour, depending on the speed of the Honda Civic when the collision occurred. Another accident reconstruction report estimated defendant’s speed at 90 miles per hour. According to Highway Patrol Officer Ron Cincera, the cause of the collision and resulting fire was the “unsafe speed” of defendant’s vehicle. A defense expert testified that the origin of the vehicle fire was “flammable liquid” stored in a plastic container in the back seat or trunk of the Honda Civic.
DISCUSSION
Defendant argues that the trial court violated section 1138 and his right to a fair trial by failing to adequately instruct the jury “on the key causation element” of section 191.5, subdivision (b), in response to a request for clarification. He complains that the court’s response to jury questions failed to properly clarify the jury’s “erroneous view” that the causation element of the statute “could be satisfied by proof that impairment by drug intoxication was the negligent cause of the accident, ” rather than the “statutory requirement that the deaths had to be caused by one of the alleged infractions, not by the drug intoxication.”
The trial court gave the standard instruction, CALCRIM No. 591, which defined for the jury the elements of a violation of section 191.5, subdivision (b): defendant’s commission of “an infraction with ordinary negligence” while driving under the influence of a drug, and the “negligent conduct caused the death of another person.” The vehicle infractions allegedly committed by defendant were specified as “speeding and following too closely.” The jury was further instructed that, “You may not find the defendant guilty unless all of you agree that the People have proved that the defendant committed at least one of these alleged infractions and you all agree on which infraction the defendant committed.” To define the infractions reference was made to other instructions in CALCRIM Nos. 595 and 2110. Ordinary negligence was defined, and the jury was advised that a person facing a sudden and unexpected emergency is required “only to use the same care and judgment that an ordinarily careful person would use in the same situation, even if it appears later that a different course of action would have been safer.”
Subdivision (b) of section 191.5 reads: “Vehicular manslaughter while intoxicated is the unlawful killing of a human being without malice aforethought, in the driving of a vehicle, where the driving was in violation of Section 23140, 23152, or 23153 of the Vehicle Code, and the killing was either the proximate result of the commission of an unlawful act, not amounting to a felony, but without gross negligence, or the proximate result of the commission of a lawful act that might produce death, in an unlawful manner, but without gross negligence.”
During deliberations the jury asked if the infraction of following too closely related to a single vehicle, “or both, ” and if “there [is] a difference between agreeing on both as opposed to only one?” The court advised the jury that “you may consider whether he followed any vehicle too closely with ordinary negligence if that act caused the death of another person.”
The jury subsequently posed two more questions in a single note to the court: the first asked, “If we believe that [defendant] was impaired to some degree by the drugs and it contributed to the accident but may not have been the ‘primary’ cause of the accident, can we still convict him” of the charged offenses; the second remonstrated that the language “which states [that] a person is ‘so impaired that he or she is no longer able to drive a vehicle’ is not clear, ” and asked for “clarification of the law” of the offense of driving under the influence of a drug as stated in CALRCIM No. 2110.
The court expressed to counsel that the first question related “specifically to the substantial cause and more than one cause of death portions of the instruction 591, ” which were not given. The court proposed reading a part of the 591 instruction to the jurors that had been previously omitted on natural and probable consequences and the requirement that an act must be a “substantial factor” in causing death. Defense counsel objected to “adding additional jury instructions, ” and suggested the jury was focused on the element of the impairment of defendant’s ability to drive a motor vehicle rather than the causation issue. Counsel asserted that the response to question number two on impairment adequately answered the inquiry in question number one. The court agreed, as did the prosecutor, and the jury was advised: “As stated in Instruction 2110, you must determine if the People have proved beyond a reasonable doubt that at the time of the accident Mr. Karr’s mental or physical abilities were so impaired that he was no longer able to drive a vehicle with the caution of a sober person, using ordinary care, under similar circumstances. [¶] Only if you find that the degree of Mr. Karr’s impairment met the requirements of Instruction 2110, may you find him guilty of Vehicular Manslaughter While Intoxicated (Instruction 591).”
Defendant maintains that the “clear import of the jurors’ first question” indicated that “they were erroneously interpreting the causation requirement as being tied to the act of driving under the influence.” Instead, he points out, “section 191.5(b) requires proof that the deaths were ‘the proximate result of the commission of an unlawful act, not amounting to a felony, ’ ” that being one of the two alleged traffic infractions in the present case. Rather than adequately responding to the causation inquiry, however, defendant claims the trial court merely restated “the impairment standard for driving under the influence.” Thus, he argues, the court left the jury free to improperly convict him of a violation of section 191.5, subdivision (b), upon proof “that impairment by drug intoxication was the negligent cause of the accident, ” and “undercut the defense position that the deaths were not caused by the infractions, but were the result of a sudden and unexpected emergency, ” unrelated to negligence on the part of defendant.
We commence our review of the content of the trial court’s response by delineating the rule that when the jury asked for guidance “the court was presented with the statutory obligation ‘to provide the jury with information the jury desires on points of law.’ [Citations.] Under Penal Code ‘section 1138 the court must attempt “to clear up any instructional confusion expressed by the jury.” [Citation.]’ [Citation.] ‘This means the trial “court has a primary duty to help the jury understand the legal principles it is asked to apply. [Citation.] This does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion under [Penal Code] section 1138 to determine what additional explanations are sufficient to satisfy the jury’s request for information....” [Citation.]’ [Citations.] Penal Code section 1138 does not demand elaboration upon the standard instructions by the trial court when the jury expresses confusion, but rather directs the court to ‘consider how it can best aid the jury and decide whether further explanation is desirable, or whether the reiteration of previously given instructions will suffice.’ [Citation.]” (People v. Yarbrough (2008) 169 Cal.App.4th 303, 316–317, italics omitted.)
We first point out that nothing in the trial court’s response constituted a misstatement of the law. “ ‘[T]he test is whether there is a reasonable likelihood that the jury misunderstood and misapplied the instruction.’ ” (People v. Letner and Tobin (2010) 50 Cal.4th 99, 182, quoting People v. Mayfield (1997) 14 Cal.4th 668, 777.) The court essentially restated the standard instruction on impairment, with emphasis on the requirement of proof beyond a reasonable doubt that at the time of the accident Mr. Karr’s mental or physical abilities were so impaired that he was no longer able to drive a vehicle with the caution of a sober person, using ordinary care, under similar circumstances. The instruction was an accurate statement of the law. (See People v. Gallardo (1994) 22 Cal.App.4th 489, 492–493.)
Turning to the separate inquiry into the adequacy of the response, we observe that the instructional clarification ultimately given to the jury was not only contrary to the trial court’s inclination to give a further instruction on causation – to the effect that the unlawful act must be a “substantial factor” in causing death (People v. Burnett (2003) 110 Cal.App.4th 868, 877) – but was also requested and essentially crafted by the defense. Because the record demonstrates to us that the defense made a “ ‘conscious and deliberate tactical choice’ ” to request the instructional response – perhaps to avoid an additional instruction that an act is a proximate cause of death if it is a substantial factor contributing to the result – the error was invited and the challenge has been forfeited on appeal. (People v. Lee (2011) 51 Cal.4th 620, 645; see also People v. Harris (2008) 43 Cal.4th 1269, 1294; People v. Wader (1993) 5 Cal.4th 610, 658.)
In any event, the challenge to the response is without merit. The two-pronged jury question was not entirely clear, but seemed to emphasize confusion about the law of impairment, both the extent of impairment necessary to constitute the offense and its relationship to the accident. The jury did not request clarification of the nature of the proximate cause element of the offense. And critically, the jury did not ask if the offense of vehicular manslaughter required proof that the charged infractions were the proximate cause of the vehicle collision. The prior instructions already disclosed to the jury that the prosecution must prove defendant drove under the influence of a drug, committed an identified traffic infraction with ordinary negligence, and the negligent conduct caused the death of another person. Read as a whole and correlated, as the standard instructions must be (People v. Felix (2008) 160 Cal.App.4th 849, 861; People v. Martin (2000) 78 Cal.App.4th 1107, 1111), the necessary connection between the negligent commission of an unlawful act and the cause of death of another person was properly disclosed to the jury. Thus, the court was not required in responding to the jury’s questions to provide further information on proximate cause. Finally, overwhelming evidence was presented that defendant’s negligent commission of an excessive speed infraction was a proximate cause of the accident and the death of the five victims. (People v. Thompson (2000) 79 Cal.App.4th 40, 55–57.) In light of the nature of the jury’s questions and the instructions already given, elaboration upon the standard instructions on causation by the trial court was unnecessary to satisfy the court’s obligation under section 1138. No prejudicial error was committed.
Accordingly, the judgment is affirmed.
We concur: Margulies, Acting P. J., Banke, J.