Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 080556-4
Marchiano, P.J.
Defendant Nasir Ali Khan was driving under the influence of alcohol with his nine-year-old son in the car when he struck and killed a pedestrian. A jury convicted him of: vehicular manslaughter while intoxicated, with ordinary negligence (Pen. Code, § 191.5, subd. (b)), as a lesser included offense of gross vehicular manslaughter while intoxicated, with an enhancement for fleeing the scene of the crime (Veh. Code, § 20001, subd. (c)); leaving the scene of an injury accident (Veh. Code, § 20001, subd. (a)); and child endangerment (Pen. Code, § 273a, subd. (b)), as a lesser included offense of child abuse. Defendant was sentenced to serve seven years in prison. He argues on appeal that the court erred in excluding evidence of the victim’s blood-alcohol content at the time of the accident. We disagree for reasons explained below and affirm the judgment.
I. BACKGROUND
A. Evidence
The accident occurred around 8:30 p.m. on March 22, 2008, near the Green Lantern bar on San Pablo Avenue in Pinole.
Dennis Jones was driving east on San Pablo, a four-lane, two-way road when he noticed a car he later identified as a Mustang coming toward him from the opposite direction at a high speed. The Mustang “fishtailed” as if it might cross into Jones’s path, so Jones checked his mirrors to see if he could move out of his lane to evade the car. When he looked forward again, he saw the Mustang hit a pedestrian. Jones did not see the pedestrian before the collision. He described the lighting in the area as “poor,” but said that a driver could see for a block down the street. The pedestrian went spinning head over heels in the air and landed on the pavement about 20 feet from the point of impact. The driver of the Mustang did not stop at the scene. Jones pulled over and his wife went into the bar to call for help.
Gerald Sanderson was also driving east on San Pablo when the accident occurred. He heard tires screeching, and when he looked to his left he saw a pedestrian get hit, go flying and land in the street. He did not see anyone cross the street in front of him, and did not see anyone in the road before the accident.
Andrea Mariduena was driving her husband and others in a van going west on San Pablo, in the lane next to the median, when her husband noticed the Mustang driving up fast behind them. The Mustang passed her on the right, in the lane next to the curb where another car was traveling, and then veered back into her lane in front of her. The car in the lane next to the curb began to slow down, and Mariduena saw a “side view” of a man in the center of the street. She thought she first saw the pedestrian on the median of the roadway, but after seeing where he landed, she did not think that the pedestrian could have been standing on the island. She “remember[ed] thinking, ‘O, my God,’ when I saw him because I knew what that car was doing.” It did not appear to her that the driver of the Mustang saw the pedestrian. She heard an impact and saw the pedestrian fly up into the air. She testified at the preliminary hearing that the driver of the Mustang started braking before the impact; she was not sure of that at trial, but remembered seeing brake lights.
Defendant was driving the Mustang, heading home from a crab feed at a senior center with his son in the backseat of the car. After he passed a vehicle on the right and moved back into the left lane, “[s]omething black... hit my screen [windshield].” He testified, “If I saw someone, I will try to stop my car,” but he said that he did not have time to brake. He did not remember whether he applied the brakes before or after the impact. He was asked, “And when that thing came on your screen, the pedestrian’s head came through your windshield; isn’t that true? A. I didn’t know that. Q. You were too drunk to notice. A. No. I didn’t drink that much. I see the head only.”
Mariduena followed defendant as he continued for a time on San Pablo, made a U-turn, parked briefly, headed back toward the scene of the accident, and drove into a dead-end street. Pinole Police Officer Uri Nieves stopped defendant on the dead-end street and ordered him and his son out of the car. Nieves testified that defendant’s son told him that he had warned defendant to slow down before the accident; the son testified at trial that he did not tell defendant to slow down until after the collision occurred.
Defendant’s blood-alcohol content at the time of the accident was determined to be.23. The pedestrian, David Robert Abar II, was killed in the collision. Nieves testified that Abar was at the Green Lantern bar prior to the accident, and that the quickest way for Abar to have walked home from the bar would have been to take a crosswalk heading north from the south side of San Pablo Avenue. The prosecution accident reconstruction expert, San Pablo Police Officer Craig Matecki, opined that Abar was struck by defendant’s car at some point between 13 feet east of the crosswalk and six feet west of the crosswalk. The defense accident reconstruction expert, physicist Paul Herman, opined that the point of impact was 26 feet east of the crosswalk.
Matecki found the brakes and tires on defendant’s car in good working order. Based on the length of the skid marks at the scene, Matecki estimated that defendant was going 41 to 46 miles per hour when the accident happened, exceeding the 35 miles per hour speed limit in the area. Using the speed of the car and a pedestrian’s normal walking speed, he determined the point at which defendant would have seen a pedestrian crossing the street, and opined that a person in defendant’s position with normal reflexes could have stopped 134 feet short of a collision. He also concluded that a pedestrian would have crossed the street safely and not been hit by defendant if defendant had been traveling at the speed limit. Matecki performed his reenactment of the accident during daylight hours, and conceded that lighting affects visibility. Defense expert Herman used Matecki’s miles per hour figure for the car and the average walking speed for someone of Abar’s age, and attempted to replicate the lighting conditions at the time of the accident in conducting his reenactment. Herman concluded that a driver in defendant’s position would have had only two seconds to avoid a collision; if the driver reacted less quickly, the odds of an accident were greater than 50/50.
Herman testified that one of the car’s skid marks started approximately five feet before the point of impact. Matecki testified that Herman’s conclusion “d[id] not logically fit” because the skids were made by the car’s rear tires, and the car’s rear axel was 11.9 feet behind the front bumper.
Contra Costa Sheriff Department criminalist Danielle Roberts, the prosecution expert on “the effects of alcohol in the human body,” testified that a person with a blood-alcohol content of.08 percent would be impaired for purposes of driving. Roberts testified in the prosecution’s rebuttal case that “[c]oordination and motor function degrade as the blood alcohol concentration increases.”
Matecki was cross-examined about the effects of alcohol consumption on a pedestrian as follows: “Q. [C]ould there be a correlation between walking speed and someone’s sobriety? [¶] A. There could be. [¶] Q. And depending on the level of sobriety, that could also affect walking speed. [¶] A. That’s correct. I’ve seen people so inebriated they couldn’t walk so we get zero speed, so yes. [¶] Q. Walking speed could also be affected by somebody’s mood? [¶] A. I would say so, yes. [¶] Q. And mood can sometimes be affected by someone’s level of sobriety? [¶] A. Yes. That’s true.”
B. Jury Instructions
The jury was instructed in accordance with CALCRIM No. 591 that in order to convict defendant of vehicular manslaughter while intoxicated, with ordinary negligence, the People were required to prove: “[1] the defendant drove under the influence of an alcoholic beverage or drove while having a blood alcohol level of 0.08 or higher; [¶] [2] while driving that vehicle under the influence of an alcoholic beverage, the defendant also committed an infraction; [¶] [3] the defendant committed this infraction with ordinary negligence; and [¶] [4] the defendant’s negligence caused the death of another person.”
The infractions alleged against defendant included failure to use due care for pedestrians on the roadway. The court noted during the instructions that there was “a dispute in the evidence as to whether the victim, Mr. Abar, was within the crosswalk or not.” Consistent with Vehicle Code section 21950, the court instructed that “the driver of a vehicle is required to yield the right-of-way to a pedestrian crossing the roadway within any marked crosswalk or within any unmarked crosswalk at an intersection. [¶] This section does not relieve a pedestrian from the duty of using due care for his or her safety. No pedestrian may suddenly leave a curb or other place of safety and walk or run into the path of a vehicle that is so close as to constitute an immediate hazard.” Consistent with Vehicle Code section 21954, the court instructed: “Every pedestrian upon a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right-of-way to all vehicles upon the roadway so near as to constitute an immediate hazard. [¶] The provisions of this section shall not relieve the driver of the vehicle from the duty to exercise due care for the safety of any pedestrian on the roadway.”
The defense asked the court to give the following portion of CALCRIM instructions on vehicular manslaughter (CALCRIM No. 590 et seq.): “[A person facing a sudden and unexpected emergency situation not caused by that person’s own negligence is required only to use the same care and judgment than 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.]” The prosecution objected to the instruction, citing a lack of evidence that the victim “jumped out in front of [defendant’s] car”; the defense argued that the instruction was warranted in view of the evidence that defendant might have begun braking before the collision. The court agreed to give the instruction, although it found the instruction’s applicability a “very close question” given defendant’s testimony suggesting that he was unaware of any danger before something black hit his windshield.
II. DISCUSSION
Defendant’s sole issue on appeal is that the court should have allowed evidence of Abar’s blood-alcohol content.
A. Record
The prosecution filed a motion in limine prior to trial to exclude evidence that Abar had a blood-alcohol content of.26 at the time of the accident. Defense counsel argued that this evidence was relevant to the “issue of causation.” The court decided to grant the motion on the ground that the evidence was irrelevant, subject to defense submission of authority to the contrary.
Toward the end of the prosecution’s case-in-chief, the defense asked the court to reconsider the admissibility of evidence of Abar’s intoxication, and the court determined that the prejudicial effect of the evidence would outweigh its probative value. The defense posited that Abar would have been moving more slowly than a normal pedestrian because he was inebriated-a fact, as the court pointed out, that would have given defendant extra time to notice him and stop. The court told defense counsel, “So unless you can show me somehow that it would diminish the visibility... I’m not going to allow it,” and counsel replied, “At this time, I can’t make that argument.” Counsel alluded to the testimony of the other drivers at the scene that they did not see Abar before the accident, but the court reiterated that no persuasive ground for admission of Abar’s intoxication had been shown. The court said, “So again, maybe you can enlighten me at some point, but at this point, I... would not allow that evidence.”
After the jury began its deliberations, the defense moved, “[i]n light of [the prosecutor’s] very last rebuttal argument,” to reopen the case to introduce evidence of Abar’s blood-alcohol content. In her final closing argument, the prosecutor had stated that defendant’s “perception is off, his memory is off because of alcohol.” She continued: “I certainly bet seeing Mr. Abar was a problem, and I certainly bet braking was a problem for him as well. [¶] It had nothing to do with that street. It had nothing to do with the lights. It had nothing to do with anybody else who was out there.” The court denied the motion to reopen for “the reasons previously stated” for excluding the evidence.
B. Analysis
Defendant does not contend that evidence of Abar’s blood-alcohol content was relevant to the issue of causation. He argues that the evidence was relevant to the concept of imminent peril because “[a] reasonable inference from the evidence was that [Abar] stumbled out of the bar into the middle of the street....” The imminent peril doctrine provides for a “reduced” (Harris v. Oaks Shopping Center (1999) 70 Cal.App.4th 206, 209) or “qualified” (Anderson v. Jones (1968) 266 Cal.App.2d 284, 293) standard of care when “a person who, without negligence on his part, is suddenly and unexpectedly confronted with peril, arising from either the actual presence, or the appearance, of imminent danger to himself or to others” (Leo v. Dunham (1953) 41 Cal.2d 712, 714). A person in that situation “is not expected nor required to use the same judgment and prudence that is required of him in the exercise of ordinary care in calmer and more deliberate moments.” (Ibid.)
Defendant’s argument fails for several reasons.
First, the argument was forfeited by failure to raise it below. The issue for which the evidence was offered was that of causation, not imminent peril. The situation here is similar to People v. Panah (2005) 35 Cal.4th 395, 480, where the defendant argued on appeal that the court erred by excluding third party culpability evidence. The evidence was not offered at trial “to show third party culpability but to show the inadequacy of the police investigation.... Since defendant did not seek admission of the testimony as third party culpability evidence, he forfeited any claim that it was improperly excluded for that purpose.” (Id. at p. 481, citing Evid. Code, § 354, subd. (a) [purpose and relevance of excluded evidence must be made known to the trial court].) We note also that defendant did not elicit any testimony that because of a lack of coordination or inhibition an inebriated pedestrian would be apt to “stumble[]... into the middle of the street.”
Second, Abar’s blood-alcohol content was reasonably subject to exclusion under Evidence Code section 352. The evidence was cumulative insofar as it related to the concept of imminent peril because other evidence-the failure of some drivers at the scene to notice Abar before the accident-supported an inference that Abar might have come suddenly into defendant’s view. While the probative value of the evidence was relatively slight, admission of the evidence would have created great potential for confusion of the issues if, as defendant concedes, it was not relevant to the issue of causation. (See, e.g., People v. Autry (1995) 37 Cal.App.4th 351, 360 [“the contributing negligence of the victim or a third party does not relieve the criminal actor of liability, unless the victim’s or third party’s conduct was the sole or superseding cause of the death”].) Contributory negligence is not a defense to the crime of negligent driving. (See 1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Defenses, § 252, p. 619.)
Third, any error in excluding the evidence was harmless insofar as the evidence bore on the existence of imminent peril, again for a number of reasons. First, as just explained, the evidence had minimal probative value as to that issue. Second, while the court exercised an abundance of caution in furnishing an instruction on imminent peril, the court correctly doubted the doctrine’s applicability here given the dearth of evidence that defendant saw Abar before hitting him. (E.g., Scott v. Iverson (Or. Ct.App. 1993) 853 P.2d 302, 303−304 [imminent peril instruction should not have been given because driver did not see bicyclist before collision].) Third, defendant did not refer to the imminent peril doctrine in closing argument, and has not explained at trial or on appeal how the doctrine was relevant to his defense. This was not an instance where the defendant had more than one way of avoiding an accident, and could argue that he or she should not be held liable for failing to make the best choice (see Anderson v. Latimer (1985) 166 Cal.App.3d 667, 675 [imminent peril instruction “should not be given unless at least two courses of action are available to the party after the danger is perceived”]); according to the evidence, defendant here had no choice but to stop the car. As for the “reduced” standard of care under the doctrine, defendant did not claim that he was relieved, by the virtue of the “sudden and unexpected emergency” with which he was confronted, of the duty to react with reasonable alacrity to the situation; he maintained that the accident could not reasonably have been avoided. Thus, while the imminent peril doctrine is central to the appeal, it was, at best, peripheral to the defense under the facts presented at trial. Accordingly, it is not reasonably probable that the result would have been different if evidence of Abar’s intoxication had been admitted in support of the doctrine’s application. (People v. Watson (1956) 46 Cal.2d 818, 836; see People v. O’Shell (2009) 172 Cal.App.4th 1296, 1310, fn. 11 and cases cited [prejudice from exclusion of evidence determined under Watson standard].)
We would reach the same conclusion even if the evidence had been incorrectly excluded as to the issue of causation. In view of defendant’s high level of intoxication, and the evidence of his speeding and aggressive driving before the accident occurred, it is unlikely that his negligence could have been seen as anything less than a substantial factor in causing the accident, regardless of any responsibility attributed to Abar. (See CALCRIM No. 590 et seq. [“There may be more than one cause of death. An act causes death only if it is a substantial factor in causing death. A substantial factor is more than a trivial or remote factor. However, it does not need to be the only factor that causes the death.”].)
III. DISPOSITION
The judgment is affirmed.
We concur: Margulies, J.Banke, J.