Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 09HF0538 W. Michael Hayes, Judge.
Richard Glen Boire, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry J.T. Carlton and Jeffrey J. Koch, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MOORE, ACTING P. J.
Defendant Martin Burt Kuehl appeals his conviction for vehicular manslaughter with gross negligence (Pen. Code, § 192, subd. (c)(1); all undesignated statutory references are to the Penal Code) resulting from a traffic collision wherein he struck and killed a pedestrian in a crosswalk. The court struck three state prison prior enhancements (§ 667.5, subd. (b)) and sentenced defendant to four years in prison.
One of the prosecution’s theories of gross negligence was that defendant had been texting while driving. The collision occurred prior to the enactment of Vehicle Code section 23123.5 (unlawful to text while driving). Defendant contends (1) he was denied due process when the trial court admitted evidence of the texts he sent and received shortly before the collision, (2) the court erred in failing to instruct the jury that texting while driving was not unlawful at the time of the incident and that the jury should consider what a reasonable person knew about the dangers of texting and driving at that time, (3) that his attorney was ineffective for failing to object to the content of the text messages and in failing to request the instructions he now argues should have been given, and (4) that cumulative error requires reversal. We affirm.
I
FACTS
The parties entered into two stipulations: (1) “Martha Ovalle was the person killed at the intersection of Westcliff Drive and Buckingham Lane on August 29, 2008, at approximately 8:31 a.m.” (2) “There was a global satellite positioning system device in [defendant’s] vehicle on the morning of August 29, 2008. According to the manufacturer, the GPS device is 97 percent accurate at measuring an object within 15 meters of its actual location, and approached 100 percent accuracy at measuring an object within 100 meters of its actual location. According to the manufacturer, the time stamp on the GPS device is 14 seconds ahead in U.S. Naval observatory master clock time due to satellite orbiting.”
This stipulation was later changed to the GPS device being on defendant’s person, because there was evidence that the GPS device placed defendant inside a building at particular times.
Kyle Chrystal was driving in the area of Dover and Westcliff Drive that morning. While heading north on Dover he stopped in the left-turn lane for the light at Westcliff Drive. He was the second car in the lane, behind defendant’s Yukon. Defendant’s vehicle did not move when the light turned green. Chrystal waited more than three or five seconds for defendant to realize the light had changed and then gave a light tap on his horn. He told police he waited 10 to 15 seconds, which was an estimate, but Chrystal said that amount of time was probably correct.
Defendant realized the light had changed and accelerated “maybe a little swift” onto Westcliff Drive, making a wide turn into the westbound number two lane. Chrystal pulled into the number two lane behind the Yukon that was travelling about 35 miles per hour, give or take five miles an hour. Chrystal said the Yukon’s speed was normal “or a little bit quick.”
As the Yukon approached the crosswalk, it “began to swerve sort of quickly and move towards the number one lane.” It had not made it into the number one lane as it approached the crosswalk and may have barely made it into that lane as it entered the crosswalk and made impact. The victim was in the crosswalk just past the median and between the number one and number two lanes when she was hit.
Chrystal first saw the victim when she was on the south side of the median. She was walking at normal speed. The Yukon did not slow down prior to striking her with its right front end. The brake lights did not go on. The victim was thrown diagonally and came to rest in the gutter.
Chrystal called 911. Defendant pulled over immediately and was clearly distraught, horrified.
John Egan was heading eastbound on Westcliff Drive and stopped at the traffic light. He saw the Yukon make the left turn in front of him. The Yukon went from the inside lane to the outside lane, which Egan thought was unsafe. Egan said the Yukon accelerated faster than the car that had been next to it in the number two left turn lane. He watched in his rearview mirror and saw a pedestrian crossing the street. He saw no sign of the Yukon slowing and heard the impact.
John Yim, a Newport Beach police officer, arrived at Buckingham and Westcliff Drive at 8:34 a.m. He saw a female in the north gutter. There was no sign of life. Defendant said he was the driver involved in the collision and that he did not see the woman. He said he felt and heard something hit his car.
Ovalle suffered a fractured skull in addition to numerous other injures. She died of multiple blunt force trauma to her body.
Officer Matthew Keyworth arrived on the scene at 8:41 a.m. He spoke with defendant. Defendant said he looked for his cell phone to call the police, but he could not find it and someone else had already called.
Newport Beach Traffic Investigator Todd Bush responded to the scene and subsequently searched defendant’s car several times. He found defendant’s cell phone on the floorboard between the driver’s seat and the center console, where it could not be seen. It was in the open position.
Steve Green, a police mechanic, inspected the Yukon on September 3, 2008, and observed no mechanical difficulties with the brakes.
David White, a Newport Beach detective, examined defendant’s clamshell, “flip phone.” He manually searched the cell phone for messages. He took photographs of the messages he found. Defendant’s phone sent a text at 7:58 a.m. on the morning of the incident. The message was sent to tdebim@aol.com, and read: “Please call me, [telephone number], xo Martin, I can talk now xo Martin.” At 8:00 a.m. a response was received: “Too early. I’ll call you in a bit.” The response came from a Blackberry device and not from the Internet address.
At 8:16 a.m. another message was sent from defendant’s phone: “Ok can you please tell me what time you will call me xo Martin.” There was an apparent error and the message did not go through. The message was resent from defendant’s phone again at 8:18 a.m. At 8:24 a.m. defendant’s phone received a response: “Do you work?” At 8:27 a.m., just minutes before the collision, defendant’s phone sent a response: “Yes, I’m at work I work for Boeing.” At 8:48 a.m., approximately 17 minutes after the incident, defendant’s phone received the following response: “What do you do there?”
Investigator Bush also obtained defendant’s phone records and the records for the GPS device that was inside defendant’s car that morning. Those records contain time stamps, plus the positioning coordinates and the speed the GPS was travelling at the time. He attempted to match up the GPS records with the cell phone records. The parties stipulated to the data for the GPS device in defendant’s vehicle.
Defendant was in a building from 8:01 to 8:18 a.m. There are approximately 15 traffic lights between that building and the crosswalk where Ovalle was killed. Defendant was travelling at 27 miles an hour when he received a text at 8:25 a.m. At 8:28 a.m. defendant was travelling at 39 miles an hour. He was at the intersection of Dover and Westcliff Drive at 8:30 a.m. Thirty-eight second later, he was travelling at 32 miles per hour.
As noted above, the GPS device is “14 seconds ahead in U.S. Naval observatory master clock time due to satellite orbiting.”
II
DISCUSSION
The Court did not err in Admitting the Text Messages into Evidence.
Defendant first argues the trial court erred in admitting evidence that he received and sent text messages from his cell phone on the morning of the tragedy, the last message having been sent while he was just three to four minutes from the location of the collision. We review the trial court’s decision to admit evidence for an abuse of discretion. (People v. Lee (2011) 51 Cal.4th 620, 643.)
The defense sought to exclude evidence of any text messaging from 7:30 a.m. to 8:30 a.m., a minute before the collision. The prosecution argued defendant was driving when he received a text message at 8:25 a.m., when he sent a text response two minutes later, and that the evidence was relevant to demonstrate gross negligence while driving. The court denied defendant’s motion.
Defendant argues that the message he sent at 7:58 a.m. and the message he received at 8:00 a.m., 31 minutes before the collision, were irrelevant. He claims the same is true of the text messages he sent and received between 8:01 a.m. and 8:18 a.m., because not only did they occur prior to the collision, but defendant was not in his car at the time of those messages. He asserts the text message he received at 8:48 a.m., 17 minutes after the collision was irrelevant, as were the message received at 8:24 a.m. and the message sent at 8:27 a.m., presumably because there was no evidence his vehicle was actually moving “at the time of the text messages.” Defendant argues the lack of relevance is supported by the fact that there was no evidence defendant used his cell phone after the 8:27 text message.
The prosecution theorized that defendant hit the victim because he was distracted while driving. The distraction was the ongoing text conversation defendant was having that morning with a person with the e-mail address of tdebim@aol.com. Defendant’s repeated use of “xo” in the texts, the commonly understood acronym for hugs and kisses, tends to suggest romance. The text messages sent and received while defendant was in a building approximately a half-hour before the accident — were they the only texts — would not have been relevant. However, the fact that other texts sent to and received from the same person continued that morning while defendant was on the road, as well as the fact that defendant appears to have been distracted while stopped at a traffic light just moments before the collision, and the fact that his clamshell phone was in the open position at the time of the accident are circumstantial evidence he was distracted by the ongoing text conversation while driving. Thus, the evidence was admissible.
Admission of the evidence did not violate Evidence Code sections 1101, subdivision (a) or 352. The former “prohibits admission of evidence of a person’s character, including evidence of character in the form of specific instances of uncharged misconduct, to prove conduct of that person on a specified occasion. Subdivision (b) of section 1101 clarifies, however, that this rule does not prohibit admission of evidence of uncharged misconduct when such evidence is relevant to establish some fact other than the person’s character or disposition.” (People v. Ewoldt (1994) 7 Cal.4th 380, 393, fn. omitted.) Here, the evidence was admitted to show defendant’s driving was distracted by his ongoing texting. Admission for that purpose did not violate subdivision (a) of Evidence Code section 1101.
Neither did admission violate Evidence Code section 352, which authorizes the court to exclude evidence when its prejudicial value outweighs its relevance. (People v. Balcom (1994) 7 Cal.4th 414, 426-427.) For purposes of this determination, “‘prejudicial’ means uniquely inflammatory without regard to relevance. [Citation.]” (People v. Zambrano (2007) 41 Cal.4th 1082, 1138, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) The evidence was not inflammatory, was properly admitted as circumstantial evidence, and admission did not render defendant’s trial fundamentally unfair.
The ongoing text conversation was relevant to show distracted driving. The text he received 17 minutes after the fatal accident is a closer call. It was some evidence of the continuing nature of the text conversation. But even if it were not relevant, the jury had before it evidence of the texts preceding the accident and admission of the single text received after the accident, asking what defendant does at Boeing, was harmless under any standard.
The Jury was Properly Instructed
Defendant does not contend the instruction provided the jury setting forth the elements of gross vehicular manslaughter, CALCRIM No. 592, failed to adequately state the law. Rather, his complaint revolves around the fact that after the date of the charged incident, the Legislature enacted Vehicle Code section 23123.5 making texting while driving unlawful. He asserts the trial court erred by not instructing the jury that (1) texting was not a crime at the time of the charged incident, and (2) to determine whether defendant was grossly negligent, it was to consider what a reasonable person would have known about the dangers of texting while driving on the date of the collision. We find no error.
The jury was instructed that texting while driving was lawful at the time of the incident when it was instructed with a modified version of CALCRIM No. 592. The instruction informed the jury of the elements of gross vehicular manslaughter and what must be proved before a defendant may be found guilty of that crime. In addition to the other required elements, the jury was instructed the prosecution had to prove: “While driving that vehicle, the defendant violated section 21950 of the Vehicle Code (Violating the Right of Way of a Pedestrian), or the lawful act or acts that might cause death to wit: text messaging, or inattention to driving[.]” (Italics added.) Thus, the jury was instructed that text messaging was lawful at the time of the incident.
Defendant argues the jury should have been instructed that in determining whether he acted with gross negligence, it must only consider what a reasonable person would have known of the risks of texting and driving on the date of the charged offense, not as of the date of trial after Vehicle Code section 23123.5 had been in effect for a year. The modified version of CALCRIM No. 592 instructed the jury that in order to find the defendant guilty of manslaughter with gross negligence it was required to find “[a] reasonable person would have known that acting in that way would create such a risk.” (Italics added.) The italicized words unerringly conveyed to the jury that the question was what a reasonable person would have known at the time, not what a reasonable person would come to learn or know at some later point in time.
CALCRIM No. 592 sufficiently and accurately states the law with regard to gross negligence. “The trial court has a sua sponte duty to instruct the jury on the general principles of law that are necessary for the jury’s understanding of the case. [Citation.] Once the trial court adequately instructs the jury on the law, it has no duty to give clarifying or amplifying instructions absent a request. [Citation.]” (People v. Butler (2010) 187 Cal.App.4th 998, 1013.) In any event, as the jury was instructed it was to consider what a reasonable person “would have known, ” any instruction such as the one defendant urges on appeal — requiring the jury to consider “whether a reasonable person at that time would have been aware of the risks involved in texting while driving” — would have been merely cumulative and unnecessary. There was no “reasonable likelihood” a juror would have thought the awareness of risk could be based upon anything other than what a reasonable person would have known on the date of the charged offense. (See Estelle v. McGuire (1991) 502 U.S. 62, 72.)
Trial Counsel was not Ineffective.
There is no “substantive difference” between the federal and state constitutional right to effective assistance of counsel. (People v. Doolin, supra, 45 Cal.4th at p. 421.) “To prevail on a claim of ineffective assistance of counsel, a defendant must show both that counsel’s performance was deficient and that the deficient performance prejudiced the defense. (Strickland [v. Washington (1984) U.S. 668, ] 687–688, 693; [People v.] Ledesma [(1987) 43 Cal.3d 171, ] 216.)” (People v. Benavides (2005) 35 Cal.4th 69, 92-93.) “Prejudice exists where there is a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different. [Citation.]” (Id. at p. 93.)
Defendant contends defense counsel was ineffective in failing to (1) move to exclude the content of the text messages, (2) request judicial notice of the fact that the charged incident occurred prior to enactment of Vehicle Code section 23123.5 and (3) request a jury instruction relating that fact to the jury’s task of determining whether defendant acted with gross negligence. The contentions lack merit.
Because we find the jury was properly instructed, defendant’s claim that his attorney was ineffective for failing to request the proposed clarifying instructions must also fail. “If a defendant has failed to show that the challenged actions of counsel were prejudicial, a reviewing court may reject the claim on that ground without determining whether counsel’s performance was deficient. [Citation.]” (People v. Kipp (1998) 18 Cal.4th 349, 366-367.)
Defendant claims that if the fact of the texts were relevant, the content of the texts was not and counsel should have sought exclusion of the content. According to defendant, only the number of characters or words in the text were relevant for purposes of determining the length of time it may have taken to read a received message or to compose a text. We disagree. Distraction may occur not only because of the fact that a message has been received, but also by the content of the received message. There is a difference between text indicating an ongoing conversation, especially one involving possible romance, and the defendant merely receiving a text confirming the fact that his cell phone payment has been received. The latter, even if a driver were to see he or she had received a message, is likely to have been immediately ignored. An ongoing conversation with someone, the last text of which was sent by the driver while on the road, is something else. It is circumstantial evidence the driver’s attention was divided. Additionally, the tone of urgency in at least one of defendant’s messages and the fact that his cell phone was open at the time of the collision supports an inference the subject was very much on defendant’s mind as he was driving.
When the woman texted defendant that it was too early to call, he texted back, “can you please tell me what time you will call me.”
Because we find no error, defendant’s cumulative error argument must fail as well. Accordingly, we affirm.
III
DISPOSITION
The judgment is affirmed.
WE CONCUR: ARONSON, J.IKOLA, J.