Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F02294
BUTZ, J.A jury convicted defendant Larry Lynn Porter of assault with a deadly weapon, to wit, a motor vehicle (Pen. Code, § 245, subd. (a)(1)) and felony hit-and-run (Veh. Code, § 20001, subd. (a)). The jury found the great bodily injury enhancements for each count (§ 12022.7, subd. (a)) to be not true.
Undesignated statutory references are to the Penal Code.
The court sentenced defendant to state prison for an aggregate term of three years, that is, the midterm of three years for the assault offense and a concurrent midterm of two years for the hit-and-run offense.
Defendant appeals. He contends that the trial court prejudicially erred (1) in allowing the prosecution to impeach him with two misdemeanor convictions; (2) in failing to instruct the jury on circumstantial evidence with respect to his mental state; and (3) on causation as to the hit-and-run offense. We reject defendant’s contentions and shall affirm the judgment.
FACTUAL BACKGROUND
About 8:15 a.m. on January 21, 2005, Joseph Borrero swerved his car to avoid a collision with defendant who pulled his pickup truck out in front of Borrero. Borrero honked his horn and drove around defendant. Defendant tailgated and then tapped Borrero’s rear bumper. Borrero pulled over to inspect for damage. He saw none. He then walked in front of defendant’s truck which had stopped 20 feet behind him but still in the lane of traffic. Borrero asked, “[W]hat the hell are you trying to do, kill me?” Defendant accelerated rapidly, striking Borrero who landed on the hood of the truck. Borrero’s face hit the windshield. Defendant continued down the street with Borrero on top of the hood for about 200 yards. Defendant then swerved one direction then the other, throwing Borrero off the passenger side of the truck. Borrero landed on his hip, knee and foot. Defendant sped away. Borrero moved his car to the side of the street and waited for an ambulance.
Edward Deane who had been working on a nearby house was an eyewitness to part of the incident. He knew neither defendant nor Borrero. He heard brakes skidding on wet pavement and looked out to the street. He heard Borrero yelling, “[W]hy have you been following me so close?” Borrero was standing stationary seven feet in front of defendant’s truck with his arms in the air. Defendant then “gassed” his truck and the passenger side of the front hood and grill of his truck hit Borrero. Deane thought Borrero had jumped up on the hood of the truck in order to avoid being run over. Deane saw Borrero rolling in the street 100 to 150 feet from the point of impact and defendant drive away. Defendant ran a stop sign at the end of the street. Deane called an ambulance. He saw Borrero limp to his car and move it to the side of the street.
Borrero suffered injuries to his feet, ankles and hip. He also lost two temporary caps to his teeth. He was in the hospital for four or five hours and bedridden thereafter for 17 days.
Borrero had been convicted of theft with a prior in 1994 and receiving stolen property in 1998 and again in 2005.
California Highway Patrol Officer Darren Spencer obtained a partial license plate of defendant’s truck from Borrero. Someone from the neighborhood where the incident occurred saw the truck later and provided the entire license plate number. Officer Spencer showed a photographic lineup to Borrero who identified defendant as the driver of the truck.
Defendant testified. He claimed that when he pulled out from the curb, there was no traffic but Borrero squealed to a stop within a foot from his bumper and honked his horn four times. Defendant drove down the road to an intersection where Borrero was stopped. After waiting 30 seconds for Borrero to move, defendant attempted to go around Borrero’s car in another lane but Borrero drove in front of his truck. Borrero got out of his car and approached defendant’s truck. Defendant tried to move into another lane but Borrero “ran up and jumped up on [the] hood,” denting the truck. Borrero also hit the windshield with his fist, scratching the hood. Defendant claimed he was scared. He thought Borrero had something in his hands. Borrero rolled off and onto his feet on the ground, bending the antenna in the process. Defendant paused and determined that Borrero was not hurt. Defendant claimed he drove away to avoid further contact with Borrero who must have been “on something” because he was “whacked out.”
Defendant did not report the incident because he did not believe it was an accident but instead an attack by Borrero and defendant was afraid Borrero would find and harm him. Defendant had been convicted of resisting a peace officer and corporal injury to a spouse.
DISCUSSION
I. Impeachment with Misdemeanor Convictions
Defendant contends the trial court erroneously permitted the prosecutor to impeach him with two misdemeanor convictions rather than with the evidence of the underlying conduct. He concedes corporal injury to a spouse appears to be a crime of moral turpitude but claims a resisting a peace officer is not. Because he pleaded no contest to corporal injury to a spouse, he asserts the conviction was “unreliable” and that acts of violence have little or no bearing on honesty or veracity. He argues the trial court abused its discretion in admitting the evidence and that his due process rights were violated. He further argues that the error was prejudicial. In response to the Attorney General’s claim that the issue is forfeited by defendant’s failure to object at all to the use of the misdemeanor convictions, defendant claims, for the first time in his reply brief, that counsel rendered ineffective assistance in failing to object with no tactical reason for failing to do so.
We conclude that the issue is forfeited. Defendant raised the issue of ineffective assistance of counsel for the first time in a reply brief. In any event, we reject his claim that counsel’s performance was deficient.
A. Background
Prior to trial, the prosecutor sought a ruling permitting him to impeach defendant should he testify. The following discourse ensued:
“THE COURT: . . . Mr. [Prosecutor], you represented to me that [defendant] has suffered two prior convictions. Are they both misdemeanor convictions?
“[PROSECUTOR]: Yes, Your Honor.
“THE COURT: [A] 1998 [section] 148, as well as a 2002 [section] 273.5, and should [defendant] testify, you wish to be able to ask him about that conduct; is that right?
“[PROSECUTOR]: That’s correct, Your Honor. I would request to use those two convictions to impeach [defendant’s] credibility and also to impeach him with a certified rap sheet should he be untruthful about those convictions.
“THE COURT: Do you want to be heard about that, Mr. [Defense Counsel]?
“[DEFENSE COUNSEL]: No, Your Honor, submitted.
“THE COURT: I do find pursuant to case law that both violations of [Penal Code sections] 273.5 and . . . 148 do fall within the classification of crimes of moral turpitude or a readiness to do evil and therefore would impact [defendant’s] credibility should he testify. Because of the nature of the offenses as well as their recency; that is, a 1998 conviction and a 2002 conviction. I find they are both relevant and probative to [defendant’s] credibility. If I’m required to do an analysis under [Evidence Code] section 352, I would find the probative value of the impeachment with those two priors is not substantially outweighed by any potential prejudice should those matters come to the jury’s knowledge. And, therefore, for all those reasons, Mr. [Prosecutor], I will allow you to impeach. Should [defendant] decide to testify, I will allow you to ask him about those two incidences.” (Italics added.)
Thereafter, defendant did testify and the prosecutor asked him about both convictions on cross-examination:
“Q. [I]sn’t it true in 1992 you were convicted of resisting arrest?
The prosecutor describes this conviction as resisting “arrest.” The actual violation described by section 148, subdivision (a)(1) is resisting, delaying or obstructing a peace officer. (See fn. 5, post.)
“A. It’s possible.
“Q. It’s true, isn’t it?
“A. Sure.
“Q. In 1992 you were convicted of resisting arrest, weren’t you?
“A. Could be.
“Q. In 2000 you were convicted of infliction of corporal injury on a spouse, weren’t you?
“A. Yes.
“Q. Now, in 1992 it sounds like you are not too sure of whether you were convicted of resisting arrest, do you [sic]?
“A. I don’t know what you are talking about for sure.
“Q. Well, you said ‘Could be,’ so you have some idea of what I’m talking about, right?
“A. Well, there was a couple of incidences where I was approached like that.
“Q. Approached like what?
“A. There is one incident where I pulled over because
“[DEFENSE COUNSEL]: Objection, Your Honor. Can we have a sidebar?
“THE COURT: Yes.
“(Whereupon a discussion was had at the bench between the Court and counsel.)
“Q. [PROSECUTOR]: So you were definitely convicted of infliction o[f] corporal injury of a spouse/cohabitant in 2000?
“A. It was a plea of no contest.
“Q. So you were convicted of domestic violence in 2000, right?
“A. Yes.
“Q. In 1992, the resisting arrest, you ‘could’ have been?
“A. It’s possible.”
B. Analysis
In order to reverse for the erroneous admission of evidence, defendant must demonstrate on appeal that he timely objected to or moved to exclude or strike the evidence and stated the specific ground and that the trial court’s error in admitting the evidence resulted in a miscarriage of justice. (Evid. Code, § 353, subd. (a).) Defendant does not cite to anything in the record showing that he sought to exclude evidence of his misdemeanor convictions or conduct underlying the same in a motion in limine, that he objected to the evidence when the prosecutor asked him about it, or that defendant moved to strike the evidence after he admitted the prior misdemeanor convictions. Under the circumstances, his appellate contention is forfeited. (Evid. Code, § 353; People v. Boyette (2002) 29 Cal.4th 381, 423-424; People v. Farnam (2002) 28 Cal.4th 107, 153 [failure to raise timely and specific objections bars appellate review].)
As noted, only when defendant began to explain the circumstances of an incident that may have resulted in resisting a peace officer did his counsel object and the objection was discussed off the record.
Defendant contends in the alternative that counsel rendered ineffective assistance in failing to object. To establish ineffective assistance of counsel, defendant must demonstrate that counsel’s performance was deficient and that defendant suffered prejudice as a result. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692 [80 L.Ed.2d 674, 693, 696]; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) The record on appeal does not reflect counsel’s reason for failing to object. When defense counsel has not had the opportunity to explain his omission, we find ineffective assistance of counsel only if there could be no satisfactory explanation. (People v. Lewis (1990) 50 Cal.3d 262, 288; People v. Pope (1979) 23 Cal.3d 412, 426.)
While misdemeanor convictions are not admissible for impeachment, the conduct underlying the same may be admissible subject to the trial court’s exercise of discretion under Evidence Code section 352. (People v. Chatman (2006) 38 Cal.4th 344, 373; People v. Wheeler (1992) 4 Cal.4th 284, 288, 297-300 (Wheeler).) “When exercising its discretion under Evidence Code section 352, a court must always take into account, as applicable, those factors traditionally deemed pertinent in this area. (See People v. Beagle [(1972)] 6 Cal.3d [441], 453-454; [citation].) But additional considerations may apply when evidence other than felony convictions is offered for impeachment. In general, a misdemeanor--or any other conduct not amounting to a felony--is a less forceful indicator of immoral character or dishonesty than is a felony. Moreover, impeachment evidence other than felony convictions entails problems of proof, unfair surprise, and moral turpitude evaluation which felony convictions do not present. Hence, courts may and should consider with particular care whether the admission of such evidence might involve undue time, confusion, or prejudice which outweighs its probative value.” (Wheeler, supra, 4 Cal.4th at pp. 296-297.) A crime of moral turpitude includes “‘conduct involving violence, menace, or threat.’” (People v. Williams (1999) 72 Cal.App.4th 1460, 1464 (Williams).) A plea of no contest to a misdemeanor is treated the same as a plea of guilty except insofar as its use in a civil suit. (§ 1016, subd. 3.)
“In exercising its discretion, the trial court must consider four factors identified by our Supreme Court in People v. Beagle[, supra,] 6 Cal.3d [at p.] 453 . . .: (1) whether the prior conviction reflects adversely on an individual’s honesty or veracity; (2) the nearness or remoteness in time of a prior conviction; (3) whether the prior conviction is for the same or substantially similar conduct to the charged offense; and (4) what the effect will be if the defendant does not testify out of fear of being prejudiced because of the impeachment by prior convictions. [Citation.] These factors need not be rigidly followed.” (People v. Mendoza (2000) 78 Cal.App.4th 918, 925.)
The trial court did not abuse its discretion in allowing defendant’s impeachment with the underlying conduct. The trial court conducted an Evidence Code section 352 analysis and concluded the evidence was more probative than prejudicial. The misdemeanor conduct was not, contrary to defendant’s claim otherwise, similar to the current offense. The greater the similarity the greater the prejudicial impact. The misdemeanor conduct demonstrated defendant’s readiness to do evil, a moral defect, and was relevant to defendant’s credibility in that he denied being the aggressor in the confrontation with Borrero.
When defendant testified, he was impeached not with the underlying conduct but with the convictions themselves. Defense counsel did not object or move to strike. Defense counsel may have chosen not to object because the conduct underlying defendant’s misdemeanor convictions may have required the prosecutor to call defendant’s former spouse to testify about how defendant physically abused her and the police officer who had to handcuff defendant when he struggled with the officer.
The probation report reflects that in 2000, defendant was convicted of misdemeanor corporal injury to a spouse and sentenced to 120 days for grabbing his spouse by the head, throwing her around the room and against the wall and choking her repeatedly. Such conduct involved violence against defendant’s spouse and was admissible. (People v. Rodriguez (1992) 5 Cal.App.4th 1398, 1402.) Citing Rodriguez, defendant concedes that his misdemeanor conviction for corporal injury to a spouse “appears” to be a crime of moral turpitude.
The probation report reflects that in 1992, defendant was pulled over for reckless driving. He refused to provide his driver’s license to the officer and refused to get into the patrol car. When he began to struggle, he was handcuffed. He was convicted of misdemeanor resisting a peace officer. Such conduct evidences a threat of violence and use of force against the officer and was admissible. (See Williams, supra, 72 Cal.App.4th at pp. 1464-1465.)
Defendant argues that the least adjudicated elements of resisting a peace officer demonstrate that it is not a crime of moral turpitude. People v. Castro (1985) 38 Cal.3d 301 set forth the least adjudicated elements test for determining whether a felony conviction is a crime of moral turpitude. (Id. at pp. 306, 314-315, 317.) “This concept simply means that in determining whether a previous felony involves moral turpitude the court cannot go behind the conviction and take evidence on or consider the facts and circumstances of the particular offense. Instead, the court must look to the statutory definition of the particular crime and only if the least adjudicated elements of the crime necessarily involve moral turpitude is the prior conviction admissible for impeachment purposes.” (People v. Mansfield (1988) 200 Cal.App.3d 82, 87.) But Wheeler held conduct underlying a misdemeanor conviction is admissible impeachment evidence if it shows moral turpitude. (Wheeler, supra, 4 Cal.4th at pp. 295-296.) Here, defendant’s underlying conduct of the resisting offense showed a readiness to do evil in that he struggled with the officer during the performance of the officer’s duties.
The elements of section 148, subdivision (a)(1), are: “(1) the defendant willfully resisted, delayed, or obstructed a peace officer, (2) when the officer was engaged in the performance of his or her duties, and (3) the defendant knew or reasonably should have known that the other person was a peace officer engaged in the performance of his or her duties.” (People v. Simons (1996) 42 Cal.App.4th 1100, 1108-1109.)
Defendant has failed to demonstrate that counsel’s performance was deficient in failing to object and thus has failed to establish ineffective assistance of counsel.
Defendant’s due process claim requires no discussion in view of our conclusion that there was no evidentiary error. (People v. Cole (2004) 33 Cal.4th 1158, 1195, fn. 6.)
II. Alleged Instructional Error
Defendant contends the trial court failed to instruct sua sponte on circumstantial evidence of defendant’s mental state and on causation with respect to the charge of hit-and-run. With respect to the circumstantial evidence instruction, defendant claims in the alternative that counsel rendered ineffective assistance in failing to request Judicial Council of California Criminal Jury Instructions (CALCRIM) (Jan. 2006), CALCRIM No. 225.
All references to CALCRIM instructions are to the January 2006 edition.
The Attorney General initially responds that defendant forfeited his right to appellate review by failing to request amplification or modification of the standard instructions. (E.g., People v. Guiuan (1998) 18 Cal.4th 558, 570.)
Defendant replies his claims are not forfeited by counsel’s failure to request modification of the instructions in the trial court because (1) CALCRIM No. 225 should have been given sua sponte and (2) any failure by counsel to request the same constituted ineffective assistance of counsel, adding the ineffective assistance claim with respect to the instruction on causation.
CALCRIM No. 225 provides: “The People must prove not only that the defendant did the acts charged, but also that (he/she) acted with a particular intent or mental state. The instructions for each crime explain the intent or mental state required. [¶] An intent or mental state may be proved by circumstantial evidence. [¶] Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt. [¶] Also, before you may rely on circumstantial evidence to conclude that the defendant had the required intent or mental state, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant had the required intent or mental state. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions supports a finding that the defendant did have the required intent or mental state and another reasonable conclusion supports a finding that the defendant did not, you must conclude that the required intent or mental state was not proved by the circumstantial evidence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable.”
The court and parties discussed the instructions and defense counsel never objected or requested additional instructions. Because defendant raises ineffective assistance of counsel and he claims the trial court was required to instruct sua sponte, we will reach the merits. (See People v. Lewis (2001) 25 Cal.4th 610, 638; cf. People v. Fosselman (1983) 33 Cal.3d 572, 581.)
“A trial court ‘is obligated to instruct the jury on all general principles of law relevant to the issues raised by the evidence, whether or not the defendant makes a formal request.’” (People v. Dominguez (2006) 39 Cal.4th 1141, 1158.) We review the entire charge to the jury, not parts of an instruction or a particular instruction. (People v. Castillo (1997) 16 Cal.4th 1009, 1016.) Defendant must show a reasonable likelihood that the jury misunderstood the instructions as a whole. (People v. Cain (1995) 10 Cal.4th 1, 36.)
A. Circumstantial Evidence
The trial court instructed the jury in the language of CALCRIM No. 223, direct and circumstantial evidence defined, as follows: “Facts may be proved by direct or circumstantial evidence or by a combination of both. Direct evidence can prove a fact by itself. For example, if a witness testifies he saw it raining outside before he came into the courthouse, that testimony is direct evidence that it was raining. Circumstantial evidence also may be called indirect evidence. Circumstantial evidence does not directly prove the fact to be decided, but is evidence of another fact or group of facts from which you may conclude the truth of the fact in question. For example, if a witness testifies that he saw someone come inside wearing a raincoat covered with drops of water, that testimony is circumstantial evidence because it may support a conclusion that it was raining outside. [¶] Both direct and circumstantial evidence are acceptable types of evidence to prove or disprove the elements of a charge, including intent and mental state and acts necessary to a conviction, and neither is necessarily more reliable than the other. Neither is entitled to any greater weight than the other. You must decide whether a fact in issue has been proved based on all the evidence.”
During the discussion of the instructions, the court recounted its understanding that defense counsel considered the “case” to be one of direct evidence rather than circumstantial evidence and would not be instructing the jury with CALCRIM No. 224. Defense counsel did not dispute the court’s understanding and had no objections or comments to the instruction packet.
CALCRIM No. 224 provides: “Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt. [¶] Also, before you may rely on circumstantial evidence to find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable.”
Defendant argues that defense counsel’s agreement that the case was a direct evidence one rather than a circumstantial one related to defendant’s acts, not his mental state. We are not convinced. Defendant argues ineffective assistance in the alternative.
The Bench Notes for CALCRIM No. 225 state, in relevant part, as follows: “The court has a sua sponte duty to instruct on how to evaluate circumstantial evidence if the prosecution substantially relies on circumstantial evidence to establish the element of a specific intent or a mental state. [Citation.] [¶] Give this instruction when the defendant’s intent or mental state is the only element of the offense that rests substantially or entirely on circumstantial evidence. If other elements of the offense also rest substantially or entirely on circumstantial evidence, do not give this instruction. Give CALCRIM No. 224, Circumstantial Evidence: Sufficiency of Evidence.” (Bench Notes to CALCRIM No. 225, pp. 56-57.)
The prosecution presented direct evidence of all the elements of hit-and-run. Borrero’s and Deane’s account of the incident show that defendant knew he was involved in an accident and that personal injury resulted but he left the scene anyway without performing his required duties. Defendant’s truck hit Borrero and Borrero landed on the hood with his face hitting the windshield. Defendant continued down the road and swerved in both directions, throwing Borrero to the ground where he struggled to get up. Defendant fled the scene, running a stop sign at the end of the road. CALCRIM No. 225 was not required. Defendant has failed to demonstrate that counsel’s performance was deficient in not requesting the instruction.
Even assuming the trial court had a sua sponte duty to instruct with CALCRIM No. 225, defendant can demonstrate no prejudice. The jury was instructed with CALCRIM No. 223, which defined direct and circumstantial evidence. There was an unbiased eyewitness to the incident who corroborated the victim’s version. It is not reasonably probable the result would have been different had the court instructed with CALCRIM No. 225. (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)
B. Hit-and-run
The court instructed the jury in the language of CALCRIM No. 2140, on the elements of hit-and-run with injury, as follows:
“[Defendant] is charged in [c]ount [two] with failing to perform a legal duty following a vehicle accident that caused injury to another person. [¶] To prove that [defendant] is guilty of this crime, the People must prove that: [¶] 1. While driving, [defendant] was involved in a vehicle accident; [¶] 2. The accident caused injury to someone else; [¶] 3. [Defendant] knew that he had been involved in an accident that injured another person or knew from the nature of the accident that it was probable that another person had been injured; [¶] AND [¶] 4. [Defendant] willfully failed to perform one or more of the following duties: [¶] (a) To stop immediately at the scene of the accident; [¶] (b) When requested, to show his driver’s license, or any other available identification, to the person struck, the driver or occupants of any vehicle collided with or any peace officer at the scene of the accident; [¶] (c) To provide reasonable assistance to any person injured in the accident; [¶] OR [¶] (d) To give to the person struck, the driver or occupants of any vehicle collided with or any peace officer at the scene of the accident all of the following information: [Defendant’s] name and current residence address; [¶] The registration number of the vehicle he was driving; [¶] The name and current residence address of the owner of the vehicle if [defendant] is not the owner; [¶] The names and current residence addresses of any occupants of [defendant’s] vehicle who were injured in the accident[;] [¶] AND [¶] The driver must, without unnecessary delay, notify either the police department of the city where the accident happened or the local headquarters of the California Highway Patrol if the accident happened in an unincorporated area. [¶] Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage. [¶] The duty to stop immediately means that the driver must stop his or her vehicle as soon as reasonably possible under the circumstances. [¶] To provide reasonable assistance means the driver must determine what assistance, if any, the injured person needs and make a reasonable effort to see that such assistance is provided, either by the driver or someone else. Reasonable assistance includes transporting anyone who has been injured for medical treatment, or arranging the transportation for such treatment, if it is apparent that treatment is necessary or if an injured person requests transportation. The driver is not required to provide assistance that is unnecessary or is already being provided by someone else. However, the requirement that the driver provide assistance is not excused merely because bystanders are on the scene or could provide assistance. [¶] The driver of a vehicle must perform the duties listed regardless of who was injured and regardless of how or why the accident happened. It does not matter if someone else caused the accident or if the accident was unavoidable. [¶] You may not find [defendant] guilty unless all of you agree that the People have proved that [defendant] failed to perform at least one of the required duties. You must all agree on which duty [defendant] failed to perform. [¶] To be involved in a vehicle accident means to be connected with the accident in a natural or logical manner. It is not necessary for the driver’s vehicle to collide with another vehicle or person. [¶] When providing his or her name and address, the driver is required to identify himself or herself as the driver of a vehicle involved in the accident.”
The court did not instruct with the remaining provisions of CALCRIM No. 2140, which provide as follows (the omitted language relevant to causation is in bold): [A permanent, serious injury is one that permanently impairs the function or causes the loss of any organ or body part.] [¶] [An accident causes (death/ [or] [permanent, serious] injury) if the (death/ [or] injury) is the direct, natural, and probable consequence of the accident and the (death/ [or] injury) would not have happened without the accident. A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all the circumstances established by the evidence.] [¶] [There may be more than one cause of (death/ [or] [permanent, serious] injury). An accident causes (death/ [or] injury) only if it is a substantial factor in causing the (death/ [or] injury). A substantial factor is more than a trivial or remote factor. However, it need not be the only factor that causes the (death/ [or] injury).] [¶] [If the accident caused the defendant to be unconscious or disabled so that (he/she) was not capable of performing the duties required by law, then (he/she) did not have to perform those duties at that time. [However, (he/she) was required to do so as soon as reasonably possible.]]”
The Bench Notes for CALCRIM No. 2140 provide, in relevant part, as follows: “If causation is at issue, the court has a sua sponte duty to instruct on proximate cause. [Citation.] If the evidence indicates that there was only one cause of death or injury, the court should give the ‘direct, natural, and probable’ language in the first bracketed paragraph on causation. If there is evidence of multiple causes of death or injury, the court should also give the ‘substantial factor’ instruction in the second bracketed paragraph on causation.” (Bench Notes to CALCRIM No. 2140, p. 176.)
We previously set forth the missing causation language in bold in CALCRIM No. 2140 in the margin (see fn. 10, ante). The trial court is required to include this language if causation is at issue. It was not. Defendant argues, “the evidence was in conflict as to whether [defendant’s] truck hit Borrero and if so whether that caused any injury or whether it was Borrero jumping up onto the truck and then rolling off which caused injury.” Defendant testified that he did not hit Borrero; instead, Borrero confronted him and jumped on his truck. His position was that there was no accident to run from. This was defense counsel’s position in seeking dismissal of the hit-and-run charge. What was at issue at trial was whether defendant hit Borrero or whether Borrero jumped on the truck to attack defendant. Either way, Borrero was injured as a result. If there was no accident as defendant claimed at trial and Borrero jumped on the truck to attack defendant, the jury would have acquitted defendant of hit-and-run. The trial court did not err and defendant has failed to demonstrate that counsel’s performance was deficient in not requesting the causation language in CALCRIM No. 2140.
In any event, CALCRIM No. 2140 instructed the jury that it had to find that “[t]he accident caused . . . injury to[] someone else [and] . . . [defendant] knew that [he] had been involved in an accident that injured another person [or knew from the nature of the accident that it was probable that another person had been injured].” The jurors were adequately instructed. Any error was harmless. (Watson, supra, 46 Cal.2d at p. 836.)
DISPOSITION
The judgment is affirmed.
We concur: RAYE , Acting P.J., MORRISON, J.