Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Riverside County Ct. No. RIF142794, W. Charles Morgan, Judge.
O'ROURKE, J.
A jury convicted Ruperto Lopez Rojo of murdering Pablo Macias (Pen. Code, § 187, subd. (a)); gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a)); and causing bodily injury while driving under the influence of alcohol and with a blood alcohol level of.08 percent or more (Veh. Code, § 23153, subds. (a), (b).) The jury found true enhancement allegations that Rojo proximately caused bodily injury to Macias (Veh. Code, § 23558) and personally inflicted great bodily injury upon Daniel Andrade, who was not an accomplice to the offense (§§ 12022.7, subd. (a), 1192.7, subd. (c)(8).) The trial court found "unusual" circumstances applied and therefore granted Rojo five years of formal probation including 365 days of local custody.
All statutory references are to the Penal Code unless otherwise stated.
Rojo contends insufficient evidence showed he acted with implied malice to support the second degree murder conviction. He further contends the trial court erroneously excluded testimony regarding the potentially dangerous condition of the road, Macias's failure to wear a seat belt, and whether the victims offered to drive Rojo's vehicle. Finally, he contends the court erred by instructing with an incomplete version of CALCRIM No. 520 and refusing to instruct on the defense of accident. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Prosecution Case
On April 26, 2008, Leticia Andrade worked at her job at a market in Perris, California from 2:00 p.m. to 10:00 p.m. Her coworkers, Rojo and Macias, took a break around 8:00 p.m., and returned late, joking that they had almost finished a 12-pack of beer in a parking lot. She smelled alcohol on Macias's breath. She told them it was dangerous to drink and drive. Rojo replied he was a good, cautious driver, and more so when drunk. When Leticia reached home around 10:40 p.m., Rojo, Macias, Daniel, and Hugo Vargas were drinking beer in her backyard. Shortly before 2:00 a.m., the start of Vargas's shift at the market, the men discussed getting more beer. Leticia told them not to drive because they had drunk a lot of alcohol, and she suggested they spend the night at her house. Rojo replied he would go for a bottle of tequila at his house, which was one block away.
We refer to Leticia and her brother, Daniel, by their first names to avoid confusion.
Vargas testified that Rojo was his work supervisor. During the drive to work, he warned Rojo to drive within the 25 miles per hour speed limit and obey the stop signs because police patrolled the area.
Daniel testified he had started drinking earlier and continued after Rojo got to the house that night. On the drive to drop off Vargas, he heard Vargas tell Rojo to drive safely. After dropping off Vargas, they went to buy beer at a convenience store but were refused because it was late. Rojo drove towards Macias's house to get a bottle of alcohol. Daniel told Rojo he was driving on the wrong side of the road. Rojo swerved to avoid an oncoming car, lost control of his car, and crashed into an embankment on the Ramona Expressway, destroying his vehicle.
The fire department discovered Macias had died in the collision. The forensic pathologist determined his cause of death was multiple blunt-force trauma. Riverside County Sheriff's Department Deputy Manuel Bustillos responded to the scene at approximately 2:16 a.m., and supervised a blood draw from Rojo at approximately 3:55 a.m.
Approximately one hour after the collision, Riverside County Sheriff's Department Deputy Angel Gasparini interviewed Rojo and Daniel at the hospital and photographed Daniel's collision injuries, which included cuts to his forehead, his left arm, and other injuries throughout his body. Daniel was unable to work for 20 days, and still suffered from headaches and vision problems at the time of trial.
Deputy Gasparini testified that the witnesses' statements to him during the preliminary investigation differed from their trial testimony. Specifically, Daniel had said at the hospital that Rojo took two 18-packs of beer to Leticia's house, and one was already opened; when they left Leticia's residence shortly before 2:00 p.m., Rojo "was blowing multiple stop signs and he was weaving... all over the roadway, " and Rojo drove on the wrong side of the Ramona Expressway for approximately half a mile; Daniel had warned Rojo he was driving on the wrong side of the road.
At the hospital, Vargas had reported to Deputy Gasparini that before they left Leticia's home, Vargas had told Rojo to spend the night at her house and not drive because police in the area could arrest him. Vargas told Deputy Gasparini he was concerned for Rojo because it was a crime to drink and drive.
In the first hospital interview with Deputy Gasparini, Rojo admitted drinking 12 beers at Leticia's house. Rojo said he had been driving 80 miles per hour on the Ramona Expressway. In a second hospital interview, Rojo told police he had understood from friends and television the dangers of drinking and driving. Rojo said he had only seven beers that night, and he could not remember his driving speed before the collision.
A toxicologist testified Rojo's blood alcohol level was.08 percent when his blood was drawn, but it was likely.10 percent when his car crashed, and an individual with those measurements was impaired and unable to safely operate a motor vehicle.
Defense Case
At trial, Rojo claimed he started drinking when his shift ended after 10:00 p.m. and admitted he had drunk about eight beers before the collision. He denied receiving warnings that night by Vargas or anyone about driving safely, feeling drunk to the point of being unable to drive, or running stop signs or speeding as he drove Vargas to work. However, he admitted that after he dropped off Vargas he sped on the Ramona Expressway, drove on the wrong side of the road and tried to avoid hitting an oncoming car.
On cross-examination, Rojo admitted knowing before the collision about the dangers of drinking and driving and disobeying traffic laws. He had this exchange with the prosecutor:
"[Prosecutor]: All right. Isn't it true, sir, that Deputy Gasparini asked you when you were getting in your vehicle to go purchase more beer and drop off [Vargas] to work, you said you were feeling the effects of the alcohol?
"[Rojo]: Yes.
"[Prosecutor]: And you still decided to drive; correct?
"[Rojo]: Yes.
"[Prosecutor]: And at that point in time, you still knew and understood the dangers to drinking and driving; correct?
"[Rojo]: Yes.
"[Prosecutor]: And you disregarded that knowledge; correct?
"[Rojo]: Yes.
"[Prosecutor]: And you still chose to ignore that and drove with Mr. Macias, Mr. Vargas, and Mr. Andrade in your car; correct?
"[Rojo]: Yes."
Perris Police Department Community Service Officer Sharon Halliburton investigated the collision and testified that a gas station was under construction in that area, explaining, "[t]here was roadwork on the south where they were adding a lane. And then on the north side is where they were putting in the sidewalk."
DISCUSSION
I.
Rojo contends the evidence supporting his second degree murder conviction based on a theory of implied malice was insufficient because it failed to show he had engaged in a pattern of reckless driving or that he had known he would have to drive when he drank the beers; further, he had no prior drunk driving conviction.
Standard of Review
"In addressing a challenge to the sufficiency of the evidence supporting a conviction, the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence — evidence that is reasonable, credible and of solid value — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.] The same standard applies when the conviction rests primarily on circumstantial evidence. [Citation.] Although it is the jury's duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant's guilt beyond a reasonable doubt. [Citation.] ' "If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment." ' " (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054; see also People v. Ceja (1993) 4 Cal.4th 1134, 1139.)
In making our determination, we do not reweigh the evidence; the credibility of witnesses and the weight to be accorded to the evidence are matters exclusively within the province of the trier of fact. (People v. Stewart (2000) 77 Cal.App.4th 785, 790.) We will not reverse unless it clearly appears that on no hypothesis whatever is there sufficient substantial evidence to support the jury's verdict. (People v. Redmond (1969) 71 Cal.2d 745, 755; see also People v. Stewart, at p. 790; People v. Olea (1971) 15 Cal.App.3d 508, 513.)
Applicable Law
"Second degree murder is defined as the unlawful killing of a human being with malice aforethought, but without the additional elements — i.e., willfulness, premeditation, and deliberation — that would support a conviction of first degree murder." (People v. Nieto Benitez (1992) 4 Cal.4th 91, 102; see § 187, subd. (a).) Section 188 defines malice as follows: "[M]alice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart."
The California Supreme Court has commented on this definition of implied malice in People v. Chun (2009) 45 Cal.4th 1172, 1181 (Chun), explaining, "We have interpreted implied malice as having 'both a physical and a mental component. The physical component is satisfied by the performance of "an act, the natural consequences of which are dangerous to life." [Citation.] The mental component is the requirement that the defendant "knows that his conduct endangers the life of another and... acts with a conscious disregard for life." ' " (Chun, at p. 1181.) An earlier case described the state of mind for implied malice as " ' "I know my conduct is dangerous to others, but I don't care if someone is hurt or killed." ' " (People v. David (1991) 230 Cal.App.3d 1109, 1114.) Here, the court instructed the jury that a "natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes." (CALCRIM No. 520.)
Analysis
Here, the jury reasonably could find Rojo acted with implied malice in causing Macias's death because he drank several beers before driving. Leticia testified Rojo and Macias started drinking during their work break and bragged of almost finishing a 12-pack of beer. Rojo admitted drinking at least eight, and as many as twelve beers that night. An expert testified his blood alcohol level at the time of the collision was beyond the legal limit. Shortly before the collision, both Leticia and Vargas warned Rojo about driving, and suggested that he spend the night at Leticia's house because he had already drunk several beers.
A reasonable person in Rojo's position would have known that a natural and probable result of drinking so much alcohol during the period at hand is impaired driving skills. Additionally, Daniel testified that Rojo disobeyed traffic laws before the collision. Rojo himself testified he had exceeded the speed limit and was in the wrong lane shortly before the crash, and he had known the danger of driving while drunk and disobeying traffic laws. We conclude such evidence overwhelmingly supported the jury's finding of implied malice and conviction of Rojo for second degree murder, and his contrary arguments are unavailing.
II.
Rojo contends the trial court erroneously excluded testimony regarding the effect of Macias's failure to wear a seat belt despite the relevance of such testimony to negate the causation element of murder. He claims the causation issue was removed from the jury's consideration, thus violating his right to a jury trial under the Sixth and Fourteenth Amendments of the United States Constitution.
In pretrial proceedings, the prosecutor moved to exclude testimony regarding whether the victims were wearing seatbelts. The trial court granted the motion over Rojo's objection. The jury sent the court a note during deliberation asking, "Was the person that died wearing a seat belt? Shoulder portion of seat belt would seem to indicate such due to bloodstain, however, if so, why was the victim thrown from the car?" Without objection from Rojo, the court informed the jury, "[I]t is 100 percent irrelevant whether any of the occupants of [Rojo's car] were restrained; that is, if they had any seatbelts on or shoulder harnesses. Completely irrelevant."
Evidence Code section 350 provides that only relevant evidence is admissible. A trial court has broad discretion in determining the relevance of evidence, and its ruling will not be disturbed absent a showing of an abuse of that discretion. (People v. Smithey (1999) 20 Cal.4th 936, 973; People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
In People v. Wattier (1996) 51 Cal.App.4th 948, 953 (Wattier), the defendant drove in a reckless manner on the freeway while intoxicated, collided with another car, and then drove away without stopping. An eight-year-old boy who was a passenger in the victim's car died from massive internal injuries. The reviewing court upheld the trial court's ruling to exclude evidence that the boy was not wearing a seatbelt because "it was irrelevant to the ultimate issue of... criminal responsibility." (Wattier, at pp. 951-955.)
The Wattier court held that "[a] defendant is liable for a crime irrespective of other concurrent causes contributing to the harm." (Wattier, supra, 51 Cal.App.4th at pp. 951-955.) Thus evidence of concurrent causes is irrelevant. An intervening superseding cause can relieve a defendant of criminal liability if the act "breaks the chain of causation" and the defendant's act is no longer a substantial factor in producing the injury. (Accord, People v. Autry (1995) 37 Cal.App.4th 351, 360-361 (Autry); Wattier, at pp. 951-955.) However, the intervening or superseding cause must occur after the defendant's original act. (Autry, at p. 361.) As a matter of law, a preexisting failure to use a safety device which might have prevented the effects of a defendant's act cannot be an intervening or superseding cause. (Ibid.)
Moreover, a failure to use a safety device cannot be characterized as an intervening force or act, but rather it is an absence of an intervening force or act, which fails to break the chain of causation. (Autry, supra, 37 Cal.App.4that p. 361.) Accordingly, a defendant cannot complain if the victim fails to use a safety device to serve as an intervening force to prevent the natural consequences of the defendant's criminal act. (Ibid.)
Similarly, in Autry, supra, 37 Cal.App.4th 351, the defendant was held criminally liable for driving while intoxicated and killing two construction workers when he crashed into them, even though their deaths might have been prevented if the construction company had provided its workers with a certain protective barrier. (Id. at. pp. 355-357, 360-361.) The reviewing court upheld the trial court's refusal to instruct the jury on intervening or superseding cause because, as a matter of law, the failure to provide a protective device did not constitute such a cause. (Id. at. p. 362.)
Here, the facts are comparable to those in Wattier and Autry. The evidence regarding whether Macias wore a seat belt was irrelevant because, whether or not he did, Rojo was not relieved of the consequences of his own conduct that caused the collision and caused Macias's death. Accordingly, the trial court did not err in excluding that testimony.
III.
Rojo contends the trial court erroneously precluded him from cross-examining Deputy Bustillos regarding the potentially dangerous condition of the Ramona Expressway. He argues, "In conjunction with its rulings on Macias's failure to wear a seat belt, this ruling had the effect of removing the causation element from the jury's consideration in violation of defendant's right to a jury trial under the Fifth, Sixth and Fourteenth Amendments to the U.S. Constitution. The trial court's ruling also violated appellant's right of cross-examination under the Sixth and Fourteenth Amendments."
Rojo relies on State of California Ex Rel. Dept. of Transportation v. Superior Court (1985) 37 Cal.3d 847, 856, in which the court addressed whether "an accused facing criminal charges arising out of an automobile collision have a 'proper interest' under [the Vehicle Code] in discovering reports of other accidents at the same location." (Id. at p. 849.) The Court of Appeal answered in the affirmative because such reports may lead to the discovery of relevant and admissible evidence for the defendant. It stated in dicta: "For example, the murder charges will likely be tried on a theory of implied malice. The trier of fact will need to decide whether (1) [the defendant] intentionally committed an act with a high probability that it would result in death and (2) she subjectively appreciated the risk created by her act. Evidence of other unrelated accidents at the same site, attributable to highway conditions or similar factors, may raise a reasonable doubt on this issue." (Id. at p. 856, citation omitted.)
On cross-examination of Deputy Bustillos, this exchange took place:
"[Defense Counsel]: Are you familiar with Perris?
"[Bustillos]: Yes, ma'am.
"[Defense Counsel]: And the Ramona Expressway?
"[Bustillos]: Yes, ma'am.
"[Defense Counsel]: Fair to say that's a dangerous stretch of roadway?
"[Prosecutor]: Objection. Relevance. Argumentative.
"The court: Sustained.
"[Defense Counsel]: Are you familiar with the statistics of accidents that occur on
"The Court: Sustained."
The trial court has broad discretion in determining whether proffered evidence is relevant and therefore admissible. (People v. Schied (1997) 16 Cal.4th 1, 13-14.) "A trial court's exercise of discretion in admitting or excluding evidence is reviewable for abuse [citation] and will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
The same issue presented here was presented in Martindale v. City of Mountain View (1962) 208 Cal.App.2d 109, in which plaintiffs called a safety engineer as witness and propounded a hypothetical question to him that called for an opinion as to whether or not the condition at the crossing was hazardous to motorists attempting to cross the tracks. Defendants' objections were sustained. The Court of Appeal summarily disposed of the issue, ruling, "We recognize that expert opinion is not inadmissible merely because it coincides with an ultimate issue of fact. The question is one which must be determined under the particular circumstances of each case and the answer rests largely in the discretion of the trial court. We find no abuse of such discretion in the instant case." (Id. at p. 124.)
We need not decide whether the trial court abused its discretion. Any error in excluding further testimony on this point from Deputy Bustillos is harmless in light of the overwhelming evidence supporting the second degree murder conviction recounted above. In general, if a trial court erroneously excludes evidence, the defendant must show on appeal that it is reasonably probable he or she would have received a more favorable result had that evidence been admitted. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1125.) "[T]he application of ordinary rules of evidence... does not implicate the federal Constitution, and thus we review allegations of error under the 'reasonable probability' standard of [People v. Watson (1956)46 Cal.2d 818, 836]." (People v. Marks (2003) 31 Cal.4th 197, 227.) We conclude the court's decision to exclude testimony regarding the dangerousness of the roadway did not implicate Rojo's constitutional rights.
IV.
During cross-examination, Detective Gasparini was asked whether Daniel had mentioned to him that either Daniel or Macias had offered to drive Rojo's car before the collision. The trial court sustained a hearsay objection to the question. Rojo contends that ruling was erroneous and violated his right to a jury trial and cross-examination under the Fifth, Sixth and Fourteenth Amendments of the United States Constitution. He maintains the answer to the challenged question was not hearsay "because it would have been a verbal act or operative fact relevant to [his] knowledge [whether or not] he would be driving. The truth or falsity of these offers was not relevant." He asserts, "The error was prejudicial because it was directly related to a major weakness in the prosecution case, i.e., that [Rojo] knew he would be driving at the time he was drinking."
Hearsay is defined in Evidence Code section 1200 as "evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." Except as provided by law, it is inadmissible. (Evid. Code, § 1200, subd. (b).) The proponent of hearsay testimony has the burden of alerting the court to the exception relied upon, and of establishing the foundational requirements for admission of the testimony under an exception to the hearsay rule. (People v. Morrison (2004) 34 Cal.4th 698, 724; People v. Livaditis (1992) 2 Cal.4th 759, 778-779; see Gouzea v. Pacific Greyhound Lines (1946) 74 Cal.App.2d 794, 798 [while the trial court has some discretion with regard to whether declarations come within res gestae rule, such discretion cannot be exercised where proponent of evidence makes no effort to come within rule].) A party may not proffer grounds for admission of a statement on appeal if he or she did not attempt to justify admission of the statement on such grounds at trial. (People v. Hines (1997) 15 Cal.4th 997, 1034, fn. 4; see People v. Fauber (1992) 2 Cal.4th 792, 854 [where hearsay objection sustained at trial, defendant cannot contend for first time on appeal that statements were relevant nonhearsay evidence].)
Here, defense counsel made no attempt to alert the trial court to the legal grounds upon which he sought to justify admission of the proffered testimony, or to establish the necessary foundation therefor. Hence, we conclude the issue has not been preserved for appeal. (See People v. Ramos (1997) 15 Cal.4th 1133, 1178.)
In any event, Rojo's claim lacks merit. "[A]n appellate court applies the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence, including one that turns on the hearsay nature of the evidence in question." (People v. Waidla (2000) 22 Cal.4th 690, 725.) Rojo has established no abuse of discretion here.
Rojo relies on what is sometimes referred to as the "operative facts" doctrine (People v. Fields (1998) 61 Cal.App.4th 1063, 1069), in which " '[a] declarant's statement may become relevant on some issue in a case merely because the words were spoken or written, and irrespective of the truth or falsity of any assertions contained in the statement. If a fact in controversy is whether certain words were spoken or written and not whether the words were true, evidence that these words were spoken or written is admissible as nonhearsay evidence.' " (Ibid.; 1 Witkin, Cal. Evidence (4th ed. 2000) Hearsay, § 31, p. 714 [where " 'the very fact in controversy is whether certain things were said or done... the words or acts are admissible not as hearsay[, ] but as original evidence' "].)
Rojo cites to People v. Patton (1976) 63 Cal.App.3d 211, in which the defendant was charged with pandering. A tape recording of his telephone conversation attempting to convince a young runaway to become a prostitute was held admissible over defendant's hearsay objection. The Patton court found the tape recording to be not hearsay but direct evidence of the contents of the conversation. The crime of pandering is committed if a defendant uses words of encouragement to a person to become a prostitute. It was irrelevant to the case whether the defendant actually intended to carry out his promises of finding an apartment for her, taking care of her needs and arranging bail if she were to be arrested. The Patton court concluded, "The conversation itself was not hearsay because it was not offered for the truth of the matters asserted. Defendant's statements to [the runaway youth] constituted the substantive offense with which he was charged, and therefore were 'operative facts.' " (Id. at p. 219.)
Rojo also cites to People v. Dell (1991)232 Cal.App.3d 248, a case involving convictions for pimping and pandering (id. at p. 251), in which statements that escorts made to police regarding the sex acts they would perform for the fees charged were admitted as "verbal acts" or "operative facts" and not hearsay. (Id. at p. 258.) The Dell court concluded: "In these types of situations, the content of the words spoken is irrelevant, the significance is in the fact the words were uttered at all, and concluded these statements could be admitted as 'operative facts' or 'verbal acts' because they demonstrated that the escorts were making verbal offers to enter into contracts of prostitution, that is, to engage in sexual intercourse or other lewd acts for money, and thus support the pimping and pandering charges." (Id. at p. 262.)
Even if the trial court had erred in excluding Deputy Gasparini's testimony, such error was harmless beyond a reasonable doubt because although Rojo claims the testimony was relevant to his knowledge whether or not he would be driving, Rojo's own trial testimony showed he was aware beforehand of the dangers of driving while drunk; therefore, it is not reasonably probable that the jury would have reached a different outcome absent Deputy Gasparini's testimony, particularly because of the strength of the People's case as detailed above.
V.
Rojo contends the trial court's instruction with CALCRIM No. 520 regarding causation was incomplete; that the court had a duty to instruct on its own motion regarding a definition of causation and concurrent causation and, by failing to do so, it violated his rights to a jury trial and cross-examination under the under the Fifth, Sixth and Fourteenth Amendments of the United States Constitution.
Rojo contends the trial court should have instructed the jury on its own motion with CALJIC No. 3.40, which provides: [To constitute the crime of _____ there must be in addition to the ________ an unlawful [act] [or] [omission] which was a cause of that _________.] The law has its own particular way of defining cause. A cause of the ____ is an [act] [or] [omission] that sets in motion a chain of events that produces as a direct, natural and probable consequence of the [act][or] [omission] the ______ and without which the ________ would not occur."
The trial court instructed the jury with CALCRIM No. 520, which provides in relevant part that to prove a murder conviction, the People must prove the defendant committed an act that caused the death of another person. The instruction states: "An act causes death if the death is the direct, natural, and probable consequence of the act and the death would not have happened without the act. 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 of the circumstances established by the evidence."
Rojo did not request a modification of CALCRIM No. 520, a standard instruction that was appropriate under the facts of this case. "Generally, a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language." (People v. Hudson (2006) 38 Cal.4th 1002, 1011–1012.)
CALCRIM No. 520's simple statement of the causation requirement is a correct statement of the law. In People v. Cervantes (2001) 26 Cal.4th 860 (Cervantes), the California Supreme Court explained the concept of " 'independent' intervening cause:"
" 'In general, an "independent" intervening cause will absolve a defendant of criminal liability. [Citation.] However, in order to be "independent" the intervening cause must be "unforeseeable... an extraordinary and abnormal occurrence, which rises to the level of an exonerating, superseding cause." [Citation.] On the other hand, a "dependent" intervening cause will not relieve the defendant of criminal liability. "A defendant may be criminally liable for a result directly caused by his act even if there is another contributing cause. If an intervening cause is a normal and reasonably foreseeable result of defendant's original act the intervening act is 'dependent' and not a superseding cause, and will not relieve defendant of liability. [Citation.] [¶] 'The consequence need not have been a strong probability; a possible consequence which might reasonably have been contemplated is enough. [¶] The precise consequence need not have been foreseen; it is enough that the defendant should have foreseen the possibility of some harm of the kind which might result from his act.' " ' " (Cervantes, supra, 26 Cal.4th at p. 871.)
Here, Macias's death was not the result of an " ' "extraordinary and abnormal occurrence, which rises to the level of an exonerating, superseding cause." ' " (Cervantes, supra, 26 Cal.4th at p. 871.) Rather, Rojo's act directly caused Macias's death, even if there was another contributing cause. Rojo should have foreseen that some injury to his passengers would ensue from his reckless driving. Because the instruction is a correct statement of the law and defendant did not request different language, he has forfeited his claim that the instruction should have been modified. And because the instruction does not otherwise violate his constitutional rights, his claim also fails on the merits. (Accord, People v. Castaneda ___ Cal.4th ___(June 30, 2011, No. S085348) [WL 2581464].)
VI.
Rojo contends the court prejudicially erred by declining his request to instruct with CALCRIM No. 3404 regarding the defense of accident on ground no evidence supported the instruction.
In its entirety, CALCRIM No. 3404 states: "The defendant is not guilty of _________ if [he] acted or failed to act without the intent required for that crime, but acted instead accidentally. You may not find the defendant guilty of ________ unless you are convinced beyond a reasonable doubt that [he] acted with the required intent. [¶] The defendant is not guilty of _____ if [he] acted or failed to act without criminal negligence. You may not find the defendant guilty of __________ unless you are convinced beyond a reasonable doubt that [he] acted with criminal negligence. Criminal negligence is defined in another instruction."
A trial court must instruct the jury, upon request, on any theory of defense that is supported by substantial evidence. (People v. Sisuphan (2010) 181 Cal.App.4th 800, 806; People v. Salas (2006) 37 Cal.4th 967, 982.) In determining whether an instruction is required, we do not determine the credibility of the defense evidence, but only whether there was evidence which, if credited by the jury, was sufficient to raise a reasonable doubt. (Id., at p. 982.) A court is not obliged to instruct on theories that lack substantial evidentiary support. (People v. Manriquez (2005) 37 Cal.4th 547, 587-588; People v. Bohana (2000) 84 Cal.App.4th 360, 370.) Substantial evidence is evidence that a reasonable jury could find persuasive. (People v. Benavides (2005) 35 Cal.4th 69, 102; People v. Oropeza (2007) 151 Cal.App.4th 73, 78.) We independently review a trial court's alleged error in failing to instruct on a defense. (People v. Sisuphan, supra, at p. 806; People v. Oropeza, supra, at p. 78.)
Under section 26, paragraph five, no crime is committed where the person who committed the charged act or omission did so "through misfortune or by accident, when it appears that there was no evil design, intention, or culpable negligence." The accident defense is a "claim that the defendant acted without forming the mental state necessary to make his actions a crime." (People v. Lara (1996) 44 Cal.App.4th 102, 110.) The burden is on the defendant to establish the absence of evil design, intention and culpable negligence. (People v. Thurmond (1985) 175 Cal.App.3d 865, 871.) Absent a "miscarriage of justice, " we may not reverse the judgment. (Cal. Const., art. VI, § 13.)
On appeal, Rojo does not attempt to prove trial court error by citing to facts in the record supporting the defense of accident. Rather, his entire argument on this point is that sufficient evidence supported the instruction because "[his] testimony described a situation to which the accident instruction applied. The requested instruction would have made it clear that if the jury believed his account of the collision it would have to acquit him. [His] account would have been substantially buttressed by the erroneous [sic] excluded evidence of the dangerous condition of the roadway." But Rojo's claim is forfeited because he does not specify the part or parts of his testimony that support an accident instruction. (People v. Stanley (1995) 10 Cal.4th 764, 793 [" '[E]very brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration.' "].) In any event, any error is harmless for reasons set forth above regarding the strength of the People's case, and the jury's instruction with CALCRIM No. 520 regarding implied malice, which required the jury to find beyond a reasonable doubt that Rojo intentionally committed an act, the natural consequences of which were dangerous to human life, and he deliberately acted with conscious disregard for human life.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McCONNELL, P. J., IRION, J.
Rojo also contends the court should have instructed the jury with CALJIC No. 3.41, which provides: "There may be more than one cause of the _____. When the conduct of two or more persons contributes concurrently as a cause of the ______, the conduct of each is a cause of the ________ if that conduct was also a substantial factor contributing to the result. A cause is concurrent if it was operative at the moment of the ______ and acted with another cause to produce the ___________ [If you find that the defendant's conduct was a cause of _____ to another person, then it is no defense that the conduct of some other person [, even the [injured] [deceased] [person, ] contributed to the ______."