Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CM020832.
CANTIL-SAKAUYE, J.
Defendant Debra Lee Sanford was acquitted by a jury of murder (Pen. Code, § 187), but found guilty of involuntary manslaughter (§ 192, subd. (b)) and guilty of four counts of furnishing a controlled substance to four different minors in violation of Health and Safety Code section 11353, subdivision (c) (section 11353(c)). The jury found true the enhancement allegations that at the time of the section 11353(c) offenses, defendant was at least four years older than each minor. (Health & Saf. Code, § 11353.1, subd. (a)(3).) The jury acquitted defendant of four further counts of violating section 11353(c).
Hereafter, undesignated statutory references are to the Penal Code.
The trial court denied defendant probation and sentenced her to state prison for the middle term of six years on count 2, the furnishing of a controlled substance to Ryan T., plus two years for the related section 11353.1, subdivision (a)(3), enhancement. The court imposed an upper term of four years for involuntary manslaughter, stayed pursuant to section 654. The court imposed a consecutive one-third of the middle term or two years for count 4, the furnishing of a controlled substance to Jessica P., plus a two-year related enhancement under section 11353.1, subdivision (a)(3). The court imposed concurrent six-year middle terms plus two-year enhancements for counts 5 and 6, the furnishing of a controlled substance to Megan M. and Brittany S. Defendant’s total prison sentence amounted to 12 years.
On appeal, defendant raises an issue of double jeopardy, various instructional errors, a hearsay evidentiary issue, a claim that her pretrial incriminating statements were involuntary, a claim that her constitutional rights were violated by the denial of funds for an expert in interrogation technique, and a claim of sentencing error pursuant to Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi), Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely), and Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham). Only her claim of sentencing error has partial merit. We shall remand for resentencing as to count 1, but otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
After his family’s move to Paradise, California, when Ryan T. was starting 10th grade, Ryan started missing school, staying out at night, acting violently, and experimenting with drugs, including prescription medicines. Ryan stole both alcohol and prescription medicines. By early December 2003, Ryan was on formal probation with the juvenile court, released to his mother’s custody on an electronic monitoring program. On December 13, 2003, his mother obtained permission for Ryan to leave his house to see a movie and go Christmas shopping with her. Instead, Ryan went over to his friend Megan M.’s house. In the early evening, Ryan’s mother gave her permission for Ryan to go visit his friend Brittany S.
Around 9:00 p.m. Ryan’s mother picked Ryan up from defendant’s house, where he had been visiting defendant’s niece Brittany S. and other friends. She noticed Ryan’s speech was a bit slurred. Ryan admitted to having a couple of shots of alcohol. When they got home, Ryan’s mother made him some food, which he ate between 9:15 and 9:45 p.m. before going to sleep on the couch. Ryan’s mother asked her sister to check on Ryan in an hour or so because his breathing sounded strange. She thought he might be getting sick like his cousin who was home with a high temperature. Ryan’s mother left for her boyfriend’s house.
Ryan’s aunt thought Ryan looked a little high when he came home, although he could walk straight. She checked on him around 11:15 p.m., giving him a sip of water before she went to bed. Ryan’s aunt found Ryan dead the next morning around 7:45 a.m. He was already cold and stiff.
Paradise Police Officer Carl Fowler responded to the house where Ryan was found dead. In a backpack belonging to Ryan he found tablets of a mottled color without any inscriptions or markings. The pills did not appear to match the description of tablet morphine.
The autopsy revealed Ryan had a trace amount of methamphetamine, a blood-alcohol level of .02, and a substantial amount of morphine, 1203.5 nanograms per milliliter, in his blood. The pathologist who performed the autopsy concluded the cause of death was acute morphine poisoning based on the amount of morphine in Ryan’s blood, an amount that was 24 to 25 times the therapeutic dose and between two and six times a fatal amount. The pathologist opined death occurred within minutes to a couple of hours after ingestion. A dose of 1 or 2 cc’s of liquid morphine would not have been fatal. He estimated Ryan took at least 5 cc’s at 20 milligrams per cc. The defense expert pathologist, Dr. Robert Lawrence, estimated the time of death to be between 2:00 a.m. and 4:00 a.m. He testified Ryan’s morphine level was consistent with Ryan taking a large dose of morphine shortly before he went to bed. The defense expert toxicologist, Dr. Raymond Kelly, did not find it credible that Ryan took a single large dose of morphine before 9:00 p.m. given his slurred speech at 9:00, his eating at 9:15 to 9:45, and his drinking water at 11:30 p.m. He opined Ryan took the fatal dose after he retired for the night around 11:30 and died at the most six hours later, quite possibly earlier.
Dr. Michael Holmes was defendant’s treating physician since 1994. Defendant started having abdominal pain from an ulcer in 1987 to 1988. Defendant was treated with medications and a series of operations, which all failed on some level. Defendant’s stomach was eventually removed. At one point she had a feeding tube. When the feeding tube was removed, the opening did not properly close. It continued to leak digestive juice, burning the skin around it. Defendant has chronic diarrhea, vomiting and severe abdominal pain. She has chronic pain 24 hours a day, plus acute pain periodically. Dr. Holmes prescribed defendant liquid morphine for her pain. He mails a prescription for 20 ounces of morphine to defendant every month. The prescription defendant received on December 13, 2003, called for defendant to take 3 to 5 milliliters or cc’s every three hours. Defendant could, however, regulate the amount she took to take less when she was in less pain and more when she was in more pain.
The girls who had been with Ryan at defendant’s house the evening before his death, Brittany, Megan M., Lynn M., and Jessica P., were interviewed by law enforcement on December 14, 2003. None of the girls said anything about defendant providing them with alcohol or giving any of them her morphine. Lynn told police she believed Ryan had taken the morphine from upstairs in defendant’s house.
A couple of days later, on December 17, 2003, the girls spoke to the police again. Brittany revealed that defendant had given them morphine. Brittany later explained she did not tell the truth when she was first interviewed because she was scared for defendant and also wanted to protect herself as she had morphine in her system and was afraid the police would give her a drug test. Megan testified she had talked to Brittany and Lynn between her two interviews with the police, knew they had talked to the police a second time, and that they had agreed to tell the truth to the police. Jessica testified she told the truth in her second statement to the police. On December 18, 2003, Fowler spoke to defendant at her house and, with her permission, searched the house. During the search, Fowler seized a morphine bottle dropper, a bottle of liquid morphine, and a prescription box of morphine with an attached warning label giving warnings as to the use of the morphine. He also seized two different kinds of bottles of vodka and a bottle of rum from defendant’s kitchen. Defendant was arrested on March 25, 2004.
Defendant’s December 18, 2003 Interview
Defendant was also interviewed by police, primarily by Fowler, at the police station on December 18, 2003, for approximately two hours. Defendant stated she provided the teens with pizza and soda when they came over to her house. Defendant eventually admitted bringing her morphine downstairs on the evening of December 13 so that she could take her dose. She said all of the teens were curious, so she put one drop on the tip of each of their tongues. She also admitted she showed them where she kept a bottle of vodka and that this could be viewed as an invitation for them to have some. The trial court denied defendant’s motion to suppress her statements as involuntary. The defense played the videotape of defendant’s interview for the jury at trial.
Defendant’s March 25, 2004 Interview
Defendant was also interviewed on March 25, 2004, after her arrest and waiver of her Miranda rights. Defendant initially denied her December interview statements about giving the kids a taste of her morphine. Later defendant said she might have used the medicine dropper to put a drop of morphine in their mouths to show them it was gross. Defendant said all of the kids saw her take a swig from her morphine bottle. They asked about the morphine and she told them it was very strong. It could really mess you up, make you sick and even kill you. She put the bottle on the counter and went to take care of her laundry. She denied she invited the kids to drink the vodka in her cupboard. Four hours and twenty-nine minutes into the interview, defendant put her hands on the table in front of her and said, “Stop please.” Defendant then admitted she gave Brittany half a dropper full, about 1 cc, of morphine in a shot glass, but swore she only gave Ryan “half a squirt.” Defendant explained after she gave all the kids a taste and Brittany the half a dropper full, Ryan, about 20 minutes later in the kitchen, asked for more and she gave him the half a dropper full. Defendant denied giving Ryan a big dose. Defendant claimed Ryan was fine when he left her house. The trial court denied defendant’s motion to suppress her March interview statements as involuntary and the prosecution played the videotape of the interview for the jury.
Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] (Miranda).
Megan’s Trial Testimony
At trial Megan testified Lynn and Ryan, who had recently started dating, came over on December 13, 2003, to Megan’s house in the afternoon. Megan was 15 years old at the time. Megan thought Ryan was under the influence when he arrived. They watched a movie and Ryan and Megan drank rum Megan had taken from under the sink. In the early evening Megan’s mother took them over to defendant’s house, where their friend Brittany was staying. Megan testified they brought the half-gallon bottle of rum with them, although it was by then less than 1/4 full. The teenagers hung out and Brittany, Megan and Ryan drank the rum at defendant’s house. According to Megan, defendant saw how much rum they had, said “That’s all you have?” and tossed them a half-gallon bottle of vodka. After that, defendant said, “If you guys really want to get fucked up later, I have some of this.” Defendant was referring to morphine. Defendant had four boxes, two in each hand, of morphine. Defendant brought down one bottle of morphine from upstairs and asked if the teenagers (Megan, Lynn, Ryan and Brittany) wanted any. Brittany wanted some so defendant got out a shot glass and filled half of the glass with morphine. Brittany drank it, but became sick later on.
According to Megan, defendant and Brittany at one point left the house. While they were gone, Jessica P. arrived. The morphine was on the kitchen counter. Megan asked Jessica if she wanted some of it, since defendant had offered it to them before. Jessica said no. When defendant and Brittany got back, Brittany showed Megan some marijuana she brought back. Megan, Lynn and Brittany smoked the marijuana. Ryan’s mom came to pick him up between 9:00 p.m. and 10:00 p.m. As Ryan was walking out the door, defendant kind of cleared her throat and Ryan turned around and said, “Oh, yeah, thanks for that stuff.”
Sometime later after Ryan left, defendant brought the bottle of morphine into the living room and offered it around. Jessica wanted some. Jessica filled the dropper on the morphine bottle halfway full. Defendant told her that that amount would not do anything and she should take the whole dropper full. Defendant filled the dropper, but Jessica poured out half and took the remaining half. The morphine was left on the cabinet in the living room. Later Jessica grabbed it and asked Megan if she wanted some. Megan took a quarter dropper full and Jessica took a half dropper full. Megan understood the morphine was there for them to use. She spent the night at defendant’s house.
The next morning Megan heard from her mother that Ryan had died in his sleep. She told Brittany, Lynn and Jessica. When Megan spoke to the police that morning, she was not honest with them. She and Brittany had talked about what to say. They did not want to get defendant in trouble. Megan said she was honest in her second interview with police because she felt guilty that Ryan was going to appear to be a thief. Megan testified she never saw defendant give Ryan morphine or Ryan take any morphine on December 13, 2003.
Brittany’s Trial Testimony
At trial Brittany testified she started drinking when she was 13 or 14 years old and had used marijuana, methamphetamine, and morphine since she was 14. Brittany had lived with defendant during the summer of 2003. Brittany claimed defendant bought whiskey for her and her friend Christa P. numerous times, that defendant also gave them morphine at least three times during the summer, and that defendant gave her sleeping and anxiety pills more than once. Brittany said she had twice taken defendant’s morphine without defendant’s knowledge, but when she told defendant, defendant did not care. Brittany also admitted she had previously stolen defendant’s morphine and given it to friends. Brittany admitted at trial that she did not tell the police about defendant giving morphine to her and Christa during the summer of 2003 until May 2004.
Defendant was acquitted of counts 7 through 9, which charged her with furnishing morphine to Brittany prior to December 13, 2003. Defendant was also acquitted of count 3, which charged her with furnishing morphine to Lynn on December 13, 2003.
On December 13, 2003, 15-year-old Brittany was spending the weekend with defendant. Brittany testified she invited Megan, Lynn, and Ryan over to defendant’s house at about 5:00 p.m. or 6:00 p.m. that day. Megan’s mother drove them over. Megan brought a bottle of rum with her. Brittany tried to hide the rum from defendant, but when defendant saw it, she threw a bottle of vodka from upstairs down to them, saying, “Here’s some more.” There were three to four inches of vodka left in the bottle. Brittany, Ryan and Megan started drinking. Brittany estimated she had eight to 10 shots of vodka.
Later, according to Brittany, defendant gave them liquid morphine saying, “If you really want to get fucked up, use some of this.” Brittany asked Ryan if he wanted to take some and he got all excited about it. He wanted to take it, but his girlfriend Lynn told him not to do it and he said okay. Brittany asked defendant for the morphine and defendant said she would bring it down. Defendant later poured Brittany half of a double shot glass of morphine. The bottle of morphine was left on the kitchen counter. Brittany later saw it in the living room.
They ordered pizza and Brittany asked defendant if she would drive Brittany to get some marijuana. Defendant did so, paying for the purchase. When they returned to the house about 30 minutes later, Jessica had arrived. Christa P.’s dad came over too and brought marijuana. He and Brittany smoked the marijuana. After a while Brittany felt horrible. She vomited over and over from the morphine.
Brittany testified Ryan left around 8:00 p.m. or 9:00 p.m. because he had to be home. He was on house arrest. The girls spent the night at defendant’s house. The next morning they got a phone call from Megan’s mom telling them Ryan was dead. When Brittany told defendant, defendant said something like she was going to go to jail for this.
Brittany testified she did not see defendant give any morphine to Ryan, Megan, Lynn or Jessica on December 13, 2003.
Lynn’s Trial Testimony
Lynn testified at trial that she and Ryan had snorted OxyContin on December 12, 2003, and had smoked some methamphetamine on the morning of December 13, 2003. As Ryan had an electronic monitoring pass for the day, Ryan’s mother later drove them over to Megan’s house. There Ryan drank a couple of shots of rum that Megan had taken from her mother and they watched a movie. Brittany called and invited them to defendant’s house. Megan’s mother drove them over. Megan brought the small remaining amount of rum with them. Megan, Brittany, and Ryan drank it. When defendant saw them, she threw down a bottle of vodka to them. Defendant went back into her bedroom and came out with four boxes and a bottle of morphine. She said, “If you guys really want to get fucked up.” She brought down a bottle of morphine. Defendant poured some of the morphine into a shot glass for Brittany and asked if anyone else wanted some. Brittany drank the morphine. Lynn argued with Ryan who wanted to take some. After Brittany drank the morphine, they ordered pizza and Brittany and defendant went out to get some marijuana. Brittany returned with a bag of marijuana, which Brittany, Lynn and Megan smoked.
Lynn testified she was with Ryan all the time he was at defendant’s house, except one time when he went into defendant’s kitchen. Defendant was downstairs at the time, either in the kitchen or the adjacent hallway. When Ryan left, defendant made a coughing sound and Ryan said, “Oh yeah. Thanks for that stuff.”
Lynn testified Jessica came over to defendant’s house too. Jessica initially declined the morphine, but later, after Ryan left, defendant showed her how to put it into the dropper. Jessica did not want all of it. She poured out half and took half. Lynn did not drink any morphine that night, but saw Brittany and Jessica drink some. She did not see Ryan drink any morphine.
Jessica’s Trial Testimony
Jessica testified at trial she started using drugs when she was 13 years old and admitted she also previously sold drugs. On December 13, 2003, her friend Brittany invited her over to defendant’s house. When she arrived, Ryan, Lynn and Megan were there. Brittany and defendant were gone. Jessica walked into the kitchen. She saw a bottle of alcohol and a little bottle on the counter. Megan picked the little bottle up and showed it to Jessica, saying, “Look what [defendant] left us.” It was a bottle of morphine.
Jessica testified she heard Ryan asking Brittany whether or not he should ask defendant for some morphine. Brittany told him to go ahead and ask. Jessica saw defendant and Ryan go into the kitchen together. As Ryan was later leaving, Jessica heard an exchange between him and defendant. Ryan said, “Thanks for that stuff.”
Jessica denied drinking or smoking marijuana that night, but testified she later asked defendant if she could take some morphine. Defendant said yes and told her how much to take. Defendant put about an inch in the dropper and gave it to Jessica. Jessica took the dropper from defendant and put the morphine in her mouth. Defendant left the morphine downstairs on a cabinet. Jessica asked Megan if she wanted to take some morphine and they both took some.
Defendant’s Trial Testimony
Defendant testified on her own behalf at trial. She testified she gave Brittany one drop of morphine prior to December 13, 2003, to let her see what it tasted like. Brittany spit it out. She never provided Christa any amount of morphine. She never bought Brittany and Christa any hard liquor, although she did give them a beer twice.
On December 13, 2003, defendant gave Brittany permission to have friends over. Defendant did not know Ryan or Megan and had only met Lynn once before. She did not know any of their substance abuse history. Defendant testified that at some point in the evening she came downstairs with her morphine prescription. She made the comment: “This stuff will really fuck you up.” She told the kids a small bit could kill an elephant. In response to a sarcastic comment by Brittany, defendant showed the kids where she kept her alcohol, but told them, “Don’t even think about it.” Later, the kids were curious after defendant took a partial dose of her morphine. The girls asked what it tasted like and defendant told them it was gross. Brittany and Ryan expressed interest in it. Defendant put a couple of drops of the morphine in a shot glass for Brittany to taste, but said no when Brittany wanted more. A few minutes later, defendant and Brittany left to buy defendant some cigarettes. They did not stop to buy anything else and Brittany never mentioned anything about marijuana. When they returned, the kids were hanging out between the kitchen and the living room, while defendant did laundry. Later, when Jessica wanted to try some morphine, defendant said okay and gave her one drop in her mouth. Defendant went upstairs. She occasionally peaked around the corner to check on the kids. She noticed someone came to pick up Ryan. Ryan did not say goodbye to defendant, who was standing at the top of the stairs, so defendant cleared her throat to get his attention and said, “It was nice meeting you.” Ryan said, “Oh- thanks.” Defendant denied she had given Ryan any amount of morphine, even a drop.
The next morning defendant heard the girls crying. One of the girls told her Ryan had died. When defendant came downstairs she saw two bottles, one of rum and one of vodka, on the kitchen counter. She never saw the kids drinking when she checked on them the night before. When she went into the living room to put away the hide-a-bed, she found a morphine bottle sitting on the top of a cabinet in the living room. Defendant did not put it there and did not know how it got there. She believed she took the bottle of morphine upstairs with her when she went upstairs. 28 cc’s of the morphine were missing. Defendant denied leaving the bottle out and offering it to the kids. She denied intentionally leaving it downstairs. She never said, “If you really want to get F’d up, try this.” Defendant denied throwing a bottle of alcohol down from upstairs. She did not know anyone was smoking marijuana in the house that night.
Defendant claimed her memory was not clear when she said in the interviews with police that she had given drops of morphine to all of the teenagers. She said she did not take enough of her morphine on the morning of March 25, 2004, to control her pain. One or two hours into the questioning that day, her pain started getting worse. After two hours, the bile and acid leaking from her abdomen was nasty, but she did not ask for her medication because to do so would make her feel like she was weak. After five hours from her last dose, defendant was exhausted and in intense pain. She said, “Stop please” because she knew the investigator was not going to believe anything she said. Defendant claimed she blurted stuff out because there was no way to get out of the room until she told them what they wanted to hear. Defendant claimed her memory of events was 100 percent better at trial than during her two interviews because she was sober and on new medication. Defendant denied her admissions of giving either Brittany or Ryan 1 cc of morphine. She denied giving any of the minors alcohol on December 13. She denied going into the kitchen with Ryan. Defendant admitted she knew the dangers of morphine long before December 13, 2003.
Dr. Albert Globus, a psychiatrist who examined defendant and reviewed the videotapes of her interviews, testified regarding defendant’s mental state and physical disabilities, including how they may have effected her interrogation responses. Dr. Holmes testified regarding the effects on defendant of her medical condition and prescription medicines. A number of witnesses testified to defendant’s good character. Various witnesses testified regarding Ryan’s and Brittany’s involvement with street drugs and stolen prescription medicine. Various witnesses testified to Brittany’s dishonesty.
DISCUSSION
Defendant raises a number of issues on appeal. We choose to consider them in a different order than raised by defendant.
I.
The Trial Court Did Not Err In Denying Defendant’s Motion To Suppress Her Incriminating Statements Made During Interrogation As Involuntary
Defendant claims her incriminating statements made during police questioning on December 18, 2003 and March 25, 2004, were involuntary, resulting from government coercion that overbore her will to remain silent.
A. Legal Principles
“It long has been held that the due process clause of the Fourteenth Amendment to the United States Constitution makes inadmissible any involuntary statement obtained by a law enforcement officer from a criminal suspect by coercion. [Citations.]” (People v. Neal (2003) 31 Cal.4th 63, 79.) To decide whether a statement is the product of police coercion, courts must consider “the totality of the circumstances.” (Dickerson v. United States (2000) 530 U.S. 428, 437 [147 L.Ed.2d 405, 415]; People v. Williams (1997) 16 Cal.4th 635, 660.) “Among the factors to be considered are ‘“the crucial element of police coercion [citation]; the length of the interrogation [citation]; its location [citation]; its continuity” as well as “the defendant’s maturity [citation]; education [citation]; physical condition [citation]; and mental health.”’ [Citation.]” (People v. Massie (1998) 19 Cal.4th 550, 576.) No single factor, no matter how apparently significant, is conclusive. (People v. Neal, supra, at p. 79; see Frazier v. Cupp (1969) 394 U.S. 731, 739 [22 L.Ed.2d 684, 693].) The question is whether the defendant’s will was overborne at the time by the circumstances surrounding the giving of the statement. (Lynumn v. Illinois (1963) 372 U.S. 528, 534 [9 L.Ed.2d 922, 926]; People v. Guerra (2006) 37 Cal.4th 1067, 1093.)
On appeal, we review the trial court’s findings “as to the circumstances surrounding the [statement], including the characteristics of the accused and the details of the interrogation, for substantial evidence[,]” accepting the version favorable to the People where the facts conflict. (People v. Guerra, supra, 37 Cal.4th at p. 1093.) We independently review the “trial court’s determinations as to whether coercive police activity was present and whether the statement was voluntary. [Citation.]” (Ibid.)
B. The Interview Of Defendant On December 18, 2003
Fowler contacted defendant by telephone on December 18, 2003, to see if she was willing to come in for an interview. When she agreed to do so, Fowler and Sergeant Greg McLaughlin drove to defendant’s house. There they briefly spoke to defendant about the statements they were getting from the teenagers. Defendant gave them permission to search her house and agreed to accompany them to the police station for a further interview. Fowler was aware of defendant’s medical condition and, with defendant’s permission, brought three boxes of defendant’s morphine with them to the police station. However, defendant did not take any morphine between the time she was picked up and the time she was taken home.
At the station, defendant was escorted into an interview room, approximately five or six feet by eight feet in size. Fowler began the interview by advising defendant she was not under arrest, that she did not have to speak with him, and that at any point she could decide she wanted to go. The door to the interview room was initially locked, but later left either unlocked or left ajar. The interview lasted for approximately two hours. Fowler did not see anything during the interview that led him to believe defendant was under the influence of any drug or medication.
About halfway through the interview, Fowler noticed defendant flinch, like she had experienced a shot of pain. Defendant was leaning over to one side, fiddling with her shirt, and appeared to be doing something. She looked uncomfortable. Fowler asked defendant if she was okay. Defendant motioned toward her side and said something about the hole in her stomach leaking. Fowler asked her if she needed anything, perhaps paper towels. Defendant said, “No.” Fowler asked if that was normal and defendant replied in the affirmative. According to Fowler, defendant was distracted just momentarily. Fowler characterized defendant’s statement regarding the hole in her stomach as a description of her medical problem, not a complaint.
A little while later, defendant asked to use the bathroom. Fowler directed defendant to the restroom across the hall and excused himself. After defendant returned to the interview room, McLaughlin entered the room and explained he had been listening to a bit of the interview and that there were still some issues they needed to resolve. McLaughlin emphasized the need to get to the truth. Defendant asked if Fowler could come back. McLaughlin said, “he sure can” and then asked defendant if she wanted him (McLaughlin) to leave. Defendant said no. Questioning continued when both officers were in the room. Defendant then admitted bringing her morphine downstairs on the evening of December 13 so that she could take her dose. She said all of the teenagers were curious, so she put one drop on the tip of each of their tongues. She admitted she showed them where she kept a bottle of vodka. McLaughlin interrupted defendant to confirm she understood she was not going to be arrested “today.” She was free to leave and he would take her home when they were done talking. Defendant said, “With the truth.” McLaughlin agreed, “With the truth.” Defendant continued to answer questions, but after a short while she stated she was starting to feel sick. Her hands were shaking. The interview was then ended.
The defense moved to suppress defendant’s statements. The trial court viewed the videotape of defendant’s interview and heard the testimony of Fowler. The trial court also heard testimony from defendant’s treating physician, Dr. Holmes, describing defendant’s medical condition. In addition, Holmes described the symptoms of withdrawal from morphine, the possible effects of morphine on defendant’s memory and concentration, his opinion that under stress defendant could begin experiencing pain within two hours of her last dose of morphine and unbearable pain in three to four hours, and the effect severe pain would have on defendant’s ability to focus and answer questions. The trial court also heard the testimony of psychiatrist Dr. Globus. Globus read the transcript of defendant’s December and March interviews and fast-forwarded the videotape to watch defendant’s body language. Globus testified defendant’s body language was consistent with being physically ill or depressed. He testified regarding his evaluation of defendant, the effects of morphine, the symptoms of withdrawal, and its effects in an interview situation. Globus opined defendant’s anti-anxiety medications could also affect defendant’s judgment and ability to make decisions. Globus thought it would be very difficult for defendant to admit pain or to being addicted to morphine.
In ruling on defendant’s motion to suppress her statements as involuntary, the trial court noted it needed to look at the totality of the circumstances, taking “into consideration the setting of the interrogation, the conduct of the officers, and also the physical condition of the defendant.” The trial court then stated:
“It’s quite apparent to the court that the defendant, because of her physical condition, was in a state of considerable pain. It’s also apparent to the court that this pain was perhaps even greater because of the fact that she was withdrawing from a strong medication, that being morphine. [¶] Even though[] I do not see any evidence to the contrary to contradict the defendant’s assertion that she was in considerable pain[,] I am not inclined to find that pain was overwhelming or unbearable, or made her statements involuntary in any way. [¶] The defendant, to me, in viewing the tapes, appeared to be alert, responsive to the officers’ questions, and she showed comprehension, rationality, and although she was suffering pain from her condition, and from withdrawal from her medication, this pain did not overwhelm her free will. [¶] This fact is probably borne out most strongly because it’s very apparent that the defendant did not admit to everything that the officer sought to elicit from her. Her admissions were partial admissions, not full admissions. She did not come clean a hundred percent, in the minds of the officers, and from this fact the court would infer that she did retain the power to resist confessing, and was not overwhelmed by her pain to the point that she would say anything that the officers wanted her to say.”
The trial court denied defendant’s motion to suppress.
Our review of the videotape and transcript of the December 18 interview and the testimony of Fowler, Holmes, and Globus presented at the hearing on defendant’s motion to suppress shows substantial evidence supports the trial court’s findings regarding the circumstances of the interview. Independently reviewing the conclusion of voluntariness, we conclude the trial court correctly determined defendant’s responses demonstrated her will was not overcome by any coercive police activity.
This case is not analogous, as defendant contends, to Blackburn v. Alabama (1960) 361 U.S. 199 [4 L.Ed.2d 242]. In Blackburn, the United States Supreme Court found that Blackburn was probably insane at the time of his confession, the police learned during the interrogation that he had a history of mental problems, and then the police exploited this weakness with coercive tactics: an eight- to nine-hour sustained interrogation in a tiny room filled on occasion with police officers; the absence of any of Blackburn’s friends, relatives, or legal counsel; and the composition of the confession by the deputy sheriff instead of by Blackburn. (Id. at pp. 207-208 [4 L.Ed.2d at pp. 248-249].) These tactics supported a finding that the confession was involuntary. (Id. at p. 205 [4 L.Ed.2d at p. 247].)
Here, the interview occurred in a small room, but defendant was seated closest to the door, which was unlocked or ajar for most of the interview. The officers were seated across a table from defendant. They did not stand over defendant or otherwise appear to try to physically intimidate her. Defendant was told twice she was not under arrest and that she could decide to stop the interview at any time and be taken home. It does appear defendant was in significant pain during the interview. She is bent over, holds her abdomen, and makes little eye contact, yet she did not request either a break or to take any medication. The police were aware of defendant’s medical condition. It does not appear the police sought to exploit the situation. While Fowler did not expressly offer defendant her morphine during the interview, he was generally solicitous regarding her needs when they were expressed. He asked if she was okay and whether she needed paper towels when defendant appeared uncomfortable and said the hole in her stomach was leaking. He allowed defendant to use the bathroom when requested. The interview was concluded almost immediately after defendant said she was “starting” to feel sick. Moreover, while the questioning of defendant by Fowler and McLaughlin throughout the approximately two hour interview was persistent, their tone and words were not aggressive. Defendant’s responses were appropriate and appeared considered. As the trial court aptly pointed out, defendant did not admit to everything the officers sought to elicit from her. She made only partial admissions, not full admissions.
The trial court did not err in denying defendant’s motion to suppress her statements made in the December 18, 2003, interview.
C. The Interview of Defendant On March 25, 2004
Defendant was also interviewed on March 25, 2004, after her arrest and waiver of her Miranda rights. Defendant took her regular dose of 5 cc’s of morphine before she was taken to the police station, where she was interviewed by Fowler and District Attorney Investigator Kory Honea. Approximately five to six hours elapsed between the time that defendant arrived at the police station until she was taken to the jail. Defendant was not being questioned for all of this time as a number of breaks were taken during the interview, accounting for between one and two hours of the five-hour interview. Defendant, however, did not take any medication while she was at the police station. Her prescription allowed her to take the morphine every three hours or as needed. She never asked to take her medication. Her requests for water, to use the bathroom, and to smoke a cigarette were granted. Defendant was asked a number of times if she was okay and responded either verbally or non-verbally that she was.
During the March interview, defendant initially denied giving the kids a taste of her morphine. She stated she just put the residue from her finger in their mouths to show them how gross it was. Later she said she might have used the medicine dropper to put the morphine in their mouths. She denied she invited the kids to drink the vodka in her cupboard. She stated she showed them where it was, but told them “Don’t.” Defendant said all of the kids saw her take a swig from her morphine bottle. They asked about the morphine and she told them it was very strong. It could really mess you up, make you sick and even kill you. She put the bottle on the counter and went to take care of her laundry.
Four hours and twenty-nine minutes into the interview, defendant put her hands on the table in front of her and said, “Stop please.” Defendant then admitted she gave Brittany half a dropper full, about 1 cc, of morphine in a shot glass, but swore she only gave Ryan “half a squirt.” Defendant explained after she gave all the kids a taste and Brittany the half a dropper full, Ryan, about 20 minutes later in the kitchen, asked for more and she gave him the half a dropper full. Defendant denied giving Ryan a big dose. Defendant claimed Ryan was fine when he left her house.
As part of the hearing on defendant’s motion to suppress her incriminating statements, the trial court viewed the five-hour videotape of her interview, reviewed the accompanying transcript, listened to the audiotape of defendant’s arrest and heard testimony from Holmes, Globus, and Honea. The trial court denied defendant’s motion after stating it had considered all the arguments of counsel and the totality of the circumstances. We quote part of the trial court’s explanation for its ruling as follows:
“The court accepts the argument that the defendant was in pain, and in considerable pain, but the court feels that the defendant was able to control that pain, may have in fact refused her medications because she feared that the medications might reduce her ability to resist the questioning more than the pain.
“In fact her ability to resist the pain is a quality of will and resistance that could be transferred to resisting the efforts of the officers to induce her to confess, provided that the pain did not become overwhelming.
“I think throughout she was able to use that will to resist the pain to resist the efforts of the officer to induce her to confess.
“Over four hours into the questioning . . . the defendant is still saying, ‘The only morphine I gave those kids, whatever, regardless of what the four of them are saying, was the drop on their tongue; that’s it.”
“Her resistance to any efforts they might have made to get her to admit more is still strong at that point, over four hours into the questioning, and she did not flinch or waiver once during that entire four hour period. [¶] . . . [¶]
“Then . . . she utters the words ‘Stop, please.’
“Court construes that not to be an indication of any of her rights under Miranda, not to be a request that the questioning stop entirely, but simply a request that she be given a chance to take a breath or take a moment, or that they stopped and listened carefully to what she’s about to say.
“At that point, . . ., she switches to a different version of her story, still very careful to deny emphatically that she gave any significant quantities of morphine to Ryan [T.], the deceased.
“At that point she says, ‘I did not give Ryan a big dose of anything.’
“Rather than being an admission, her first statement after saying ‘Stop, please,’ is a denial of doing something that would be incriminatory.
“She goes on to say, ‘I did pour some for my niece in a small glass.’
“This is the first time, after four hours, close to four and a half hours, that she’s admitted to anything beyond what she admitted to in December. Her admissions are calculated and controlled to define her ultimate responsibility, and to deny her ultimate responsibility for the death of Ryan [T.] [¶] . . . [¶]
“She continues to deny any criminal responsibility for Ryan’s death. Her admissions are collateral to that. At no point did she breakdown and begin to spill out her story to the officers. She’s very careful and controlled throughout the questioning, continues for a considerable length of time before the cigarette break.
“The court feels that there is no indication that her own condition, her own pain, or anything done by the officers overcame her will to resist confessing to anything in the case, that she was rational throughout and comprehended the questions, controlled her own answers, and her will to resist was not overcome by the circumstances of the interrogation or the conduct of the officers.”
We have reviewed the videotape of defendant’s March 25 interview, the accompanying transcript, the audiotape and transcript of defendant’s arrest, and the testimony from the doctors and officers. We have considered defendant’s arguments regarding the length of the interview in light of defendant’s medical problems and withdrawal from her last dose of morphine, the alleged intimidating atmosphere of the interrogation, the evidence of defendant’s pain, and the officers’ response to defendant’s answers and requests. Applying an independent standard of review, we agree with the trial court’s conclusion that defendant’s will was not overborne at the time by the circumstances of the interrogation. Defendant’s statements were not an involuntary product of coercive police conduct exploiting her physical and mental condition. (Lynumn v. Illinois, supra, 372 U.S. at p. 534 [9 L.Ed.2d at p. 926]; People v. Guerra, supra, 37 Cal.4th at p. 1093.) The trial court did not err in denying defendant’s motion to suppress.
II.
The Error In Admitting Ryan’s Hearsay Statement Was Harmless
The trial court granted, over defense objection, the prosecution’s motion to allow testimony that as Ryan was walking out the door of defendant’s house the night of December 13, defendant cleared her throat, Ryan turned around, and Ryan said: “Oh, yeah. Thanks for that stuff.” The trial court ruled such hearsay statement was admissible as a declaration against interest under Evidence Code section 1230 (section 1230). Thereafter, Megan, Jessica, and Lynn all testified Ryan made such statement as he left defendant’s home. Defendant claims the admission of their testimony as to such statement was reversible constitutional error. We conclude it was harmless error.
Section 1230 provides that, “[e]vidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, . . . so far subjected him to the risk of . . . criminal liability . . . that a reasonable man in his position would not have made the statement unless he believed it to be true.”
To be admissible, the proponent of such evidence must show (1) the declarant is unavailable; (2) the declaration was against the declarant’s penal interest when made; and (3) the declaration was sufficiently reliable to warrant admission despite its hearsay character. (People v. Lawley (2002) 27 Cal.4th 102, 153; People v. Duarte (2000) 24 Cal.4th 603, 610-611.)
“In determining whether a statement is truly against interest within the meaning of Evidence Code section 1230, and hence is sufficiently trustworthy to be admissible, the court may take into account not just the words but the circumstances under which they were uttered, the possible motivation of the declarant, and the declarant’s relationship to the defendant. [Citations.]” (People v. Frierson (1991) 53 Cal.3d 730, 745; accord, People v. Lucas (1995) 12 Cal.4th 415, 462.)
The proponent of hearsay evidence has the burden of establishing the foundational requirements for its admission. (People v. Morrison (2004) 34 Cal.4th 698, 724.) We review the trial court’s ruling for abuse of discretion. (People v. Guerra, supra, 37 Cal.4th at p. 1140; People v. Brown (2003) 31 Cal.4th 518, 536; People v. Lawley, supra, 27 Cal.4th at p. 153.)
Here the prosecution offered testimony by Megan, Jessica, and Lynn that Ryan responded to defendant’s clearing of her throat as he was leaving her house with the statement “Oh, yeah. Thanks for the stuff.” The prosecution argued it was admissible as an adoptive admission (Evid. Code, § 1221) as defendant failed to respond. The prosecutor admitted there would be no testimony that the word “stuff” refers to morphine, but contended it was for the jury to decide what Ryan meant by the word “stuff” given the evidence defendant had given Ryan pizza, alcohol and morphine. After taking the matter under submission and giving it further thought, the trial court stated its view “that the word ‘stuff,’ similar to the word ‘shit,’ is often used to describe drugs, and the court regards the statement that Ryan made as he was leaving as a statement that lends support to a possible inference that he in fact had a container with morphine in it that he was bringing with him out of the house at that time, and he was thanking [defendant] for the gift of that substance that he could then take with him home and use at his pleasure. [¶] That would be not an adoptive admission, but a declaration against interest which would be admissible . . . pursuant to [section] 1230[.]”
Contrary to the view of the trial court, in context, Ryan’s use of the word “stuff” was completely ambiguous. It is entirely speculative to say the word “stuff,” when used by a teenager in thanking an adult upon leaving their house after the adult has provided him with food plus, arguably under various versions of the events, soda and/or alcohol and/or drugs, refers to a container of illegal drugs the teenager is taking home with him. This case is not like those cases cited by respondent where the context of the statement was so clear as to be certain the declarant’s statement referred to illegal drugs. (People v. Fitzwater (1968) 260 Cal.App.2d 478, 484; People v. Rodriguez (1961) 192 Cal.App.2d 77, 78.) This is not like the cases cited by respondent where law enforcement testified to the meaning of an ambiguous term used by a declarant as referring to illegal drugs. (People v. Morgan (2005) 125 Cal.App.4th 935, 941; People v. Buchanan (1972) 26 Cal.App.3d 274, 278; People v. Bigelow (1951) 104 Cal.App.2d 380, 388.) The trustworthiness of the hearsay statement depended on the certainty that Ryan was referring to something illegal for him to possess so that the statement was against his penal interest. There was no such certainty. The trial court abused its discretion in admitting evidence of Ryan’s statement “Thanks for the stuff.”
However, we conclude the error was harmless under either the Watson or Chapman standard. The statement by Ryan thanking defendant for “the stuff” was so ambiguous as to have virtually no value. It was admitted primarily to support the prosecution’s theory that defendant affirmatively gave Ryan a fatal amount of her morphine, a theory rejected by the jury when they acquitted defendant of second degree murder. The prosecutor made no other use of the statement in his arguments. In fact, the prosecutor only mentioned the statement in his initial summary of the teenagers’ testimony. He did not argue its application to any of the specific charges against defendant.
People v. Watson (1956) 46 Cal.2d 818, 837.
Chapman v. California (1967) 386. U.S. 18 [17 L.Ed.2d 705].
“If admission of the hearsay statements violated a state statute alone, we apply the standard articulated in People v. Watson . . . and reverse only if there is a reasonable probability of a result more favorable to the defendant in the absence of the error. [Citation.] If, on the other hand, the error violated appellant’s confrontation clause rights, we must determine whether the error was harmless beyond a reasonable doubt. [Citations.]” (People v. Roberto V. (2001) 93 Cal.App.4th 1350, 1373.)
III.
Defendant’s Conviction Of Both Furnishing Morphine To Ryan And Involuntary Manslaughter Does Not Violate The Constitutional Guarantee Against Double Jeopardy
Defendant contends her conviction of involuntary manslaughter was predicated on the unlawful act of furnishing morphine to Ryan and therefore, her conviction of both furnishing morphine to Ryan in violation of section 11353(c) (count 2) and involuntary manslaughter in violation of section 192, subdivision (b), is precluded by the double jeopardy clauses of the United States and California Constitutions. (U.S. Const., 5th Amend; Cal. Const., art. I, § 15; see Blockberger v. United States (1932) 284 U.S. 299, 304 [76 L.Ed. 306, 309].)
The failure to raise a meritorious defense of double jeopardy is ineffective assistance of counsel. (People v. Belcher (1974) 11 Cal.3d 91, 96.) Due to this potential ineffective assistance of counsel claim, courts address the double jeopardy claim even if not raised below. (See People v. Scott (1997) 15 Cal.4th 1188, 1201; People v. Marshall (1996) 13 Cal.4th 799, 824, fn. 1.)
Defendant has provided extensive argument that she may not be convicted of involuntary manslaughter and the predicate felony on which the manslaughter is based. We need not reach the merits of defendant’s arguments as we conclude the jury did not convict her of involuntary manslaughter based on the unlawful act of her furnishing morphine to Ryan in violation of section 11353(c).
The crime of manslaughter is the unlawful killing of a human being without malice. (§ 192.) Here the trial court instructed the jury on involuntary manslaughter in the terms of CALJIC No. 8.45 as follows:
“The defendant is accused in count 1 of having committed the crime of murder. Involuntary manslaughter, in violation of section 192 (b) of the Penal Code, is a lesser crime to murder. Every person who unlawfully kills a human being without malice aforethought and without an intent to kill, and without conscious disregard for human life, is guilty of the crime of involuntary manslaughter, in violation of Penal Code section 192 (b).
“A killing in conscious disregard for human life occurs when a killing results from an intentional act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that her conduct endangers the life of another, and who acts with conscious disregard for human life.
“A killing is unlawful within the meaning of this instruction if it occurred: 1 During the commission of a[n] unlawful act which is dangerous to human life under the circumstances of its commission;
“Or 2 in the commission of an act ordinarily lawful, which involves a high degree of risk of death or great bodily harm, without due caution and circumspection.
“In order to prove this crime, each of the following elements must be proved: 1 a human being was killed; and 2, the killing was unlawful.” (Italics added.)
The furnishing of morphine in violation of section 11353(c) was the claimed unlawful act for involuntary manslaughter in this case.
Section 11353(c) provides: “Every person 18 years of age or over, . . . who unlawfully sells, furnishes, administers, gives, or offers to sell, furnish, administer, or give, any [of the previously specified] controlled substance to a minor, shall be punished by imprisonment in the state prison for a period of three, six, or nine years.” Here the information charged defendant in counts 2 through 9 with violating section 11353(c) by furnishing morphine, one of the specified controlled substances, to Ryan, Lynn, Jessica, Megan, and Brittany. Count 2 specifically charged defendant with violating section 11353(c) by furnishing morphine to Ryan on December 13, 2003.
For convenience we refer to the series of acts listed in section 11353(c) simply as “furnishing.”
The trial court instructed the jury with a modified CALJIC No. 12.11 as follows:
“Defendant is accused in Counts 2-9 of having violated section 11353(c) of the Health and Safety Code, a crime.
“In order to prove this crime, each of the following elements must be proved:
“1. A person offered to furnish, administer, or give, a controlled substance, to a minor.
“2. At the time, the minor was a person under 18 years of age;
“3. The person who made the offer was 18 years of age or older; and
“4. The person who made the offer had the specific intent to furnish or administer the controlled substance to the minor.” (Italics added.)
The prosecutor argued there were two acts that could form the basis for a conviction of count 2: (1) Ryan was present when defendant offered her morphine to the kids, saying, “When you are ready to get F’d up, you can have some of this” or (2) defendant admitted giving Ryan 1 cc of morphine. The prosecutor did not argue any other acts as the basis for finding defendant guilty of count 2. A conviction on count 2 based on either of these acts would necessarily require the jury to conclude defendant had the specific intent in doing such act to furnish the morphine to Ryan.
If the jury believed defendant intentionally gave Ryan 1 cc of her morphine, as she admitted in her March interview statement, it could have found her guilty of count 2, but there was no evidence such amount would have been fatal. To the contrary, the evidence established 1 or even 2 cc’s of morphine would not have been a fatal dose. The jury could not have reasonably found defendant’s intentional furnishing of 1 cc of morphine to Ryan, although a violation of section 11353(c), resulted in his death. Such act could not have been the proximate cause of Ryan’s death (see CALJIC No. 3.40 [Cause - “But For” Test]); it could not reasonably have formed the basis for defendant’s involuntary manslaughter conviction.
In the alternative, the jury could have believed defendant intentionally offered her morphine to Ryan, i.e., the prosecutor’s alternative number 1, and that Ryan took the fatal dose based on that offer. The difficulty here is that there is no evidence in the record from which the jury could have found defendant intentionally offered morphine to the teenagers, including Ryan, but did so without conscious disregard for human life, thus making her offense involuntary manslaughter. The undisputed evidence overwhelmingly established defendant knew the morphine was strong and dangerous. She had taken prescription morphine for her severe pain for a number of years. Her prescription boxes came with warning labels regarding the use of the medicine. Defendant admitted she knew the dangers of morphine well before December 13, 2003. She admitted she knew her morphine could make a person sick and even die. Indeed, according to defendant, she told the kids “a small bit of it could kill an elephant.” Thus, the evidence established defendant realized the dangerousness of the morphine in other hands. Consequently, if the jury found defendant intentionally gave her bottle of morphine to the teenagers to use, there was no reasonable way the jury could have found she did so without conscious disregard for human life and without knowing that her conduct endangered the teenagers’ lives to find her guilty of only involuntary manslaughter. Based on the evidence, if the jury had found defendant, with her stated knowledge of the dangerousness of morphine, intentionally gave morphine to the teenagers to use, the jury would have found defendant guilty of second degree murder.
The jury, however, found defendant guilty of both involuntary manslaughter and furnishing morphine to Ryan in violation of section 11353(c). The only realistic way the jury could have reached such verdicts on the evidence before it was for the jury to have found defendant guilty of the furnishing offense based on defendant’s intentionally giving Ryan 1 cc, or some lesser “taste” of the morphine, and then to have found defendant guilty of involuntary manslaughter based on a separate and different act, the ordinarily lawful act of accidentally leaving her prescription morphine out in an area accessible to Ryan, done with criminal negligence. As such, the factual predicate of the involuntary manslaughter offense was accidentally leaving the morphine out with the teenagers. The convictions were based on separate acts and double jeopardy is not implicated.
Defendant argues against this conclusion. First she points to the trial court’s unanimity instruction. Specifically, the trial court instructed with CALJIC No. 17.01 (modified) as follows:
“The defendant is accused of having committed the crime of furnishing a controlled substance to a minor in Counts 2-9 and murder in Count 1. The prosecution has introduced evidence for the purpose of showing that there is more than one act upon which a conviction on Counts 2-9 and Count 1 may be based. Defendant may be found guilty if the proof shows beyond a reasonable doubt that she committed any one or more of the acts. However, in order to return a verdict of guilty to Count 2-9, and Count 1 all jurors must agree that she committed the same act. It is not necessary that the particular act agreed upon be stated in your verdict.”
Defendant contends this instruction told the jury that it must unanimously agree that the same act of furnishing had been committed to find defendant guilty of count one (murder or its lesser crime, involuntary manslaughter). The language of the instruction does not require the jury to unanimously agree on the same act as the basis for all counts, including the furnishing and the killing, or even that the same act must be the basis for count 1 and count 2, but only that the jury unanimously agree on the same act for each count. There is no reasonable likelihood the jury understood the instruction as defendant asserts. (People v. Kelly (1992) 1 Cal.4th 495, 525.)
Defendant next asserts the same act of furnishing was the basis for the involuntary manslaughter conviction because the trial court, at sentencing, stayed the sentence on her involuntary manslaughter conviction under section 654. We reject the claim that the trial court’s sentencing decision represents the jury’s factual findings.
Finally, defendant points us to portions of the prosecutor’s closing argument, claiming “nothing in the prosecutor’s argument . . . permitted the jury to find defendant guilty of involuntary manslaughter in count one based on one act of furnishing, while finding her guilty of furnishing in count two based on another act of furnishing.” We have reviewed the entire closing arguments of counsel. In his closing arguments, the prosecutor strongly argued for a conviction of second degree murder. The prosecutor only briefly discussed involuntary manslaughter as an alternative, more to dismiss it than to provide substantial argument regarding it. The prosecutor separately discussed his view of the two separate possible factual bases for finding defendant guilty of furnishing morphine to Ryan. Contrary to defendant’s view of the argument, nothing in it suggested the jury could not base convictions of count 1 and count 2 on separate acts.
We conclude defendant’s convictions of both furnishing morphine to Ryan and involuntary manslaughter do not violate the constitutional guarantee against double jeopardy.
IV.
The Trial Court’s Instructions Did Not Improperly Permit The Jury To Convict Defendant Of Involuntary Manslaughter Based On Simple Negligence
Defendant claims the trial court’s instructions, specifically CALJIC No. 8.45 (definition of involuntary manslaughter, quoted infra) and CALJIC No. 8.51 (distinguishing murder and manslaughter) permitted the jury to convict defendant of involuntary manslaughter based on an unlawful act committed with simple negligence. Defendant focuses on the language of CALJIC No. 8.45 that states: “A killing is unlawful within the meaning of this instruction if it occurred: [¶] 1. During the commission of an unlawful act . . . which is dangerous to human life under the circumstances of its commission; or [¶] 2. In the commission of an act, ordinarily lawful, which involves a high degree of risk of death or great bodily harm, without due caution and circumspection.” Defendant claims the omission of the phrase “without due caution and circumspection” from the first alternative regarding killings occurring during the commission of unlawful acts allowed defendant’s conviction to be based on simple negligence.
We are unconvinced the instructions given are defective, but we need not resolve the issue, because, as we have explained in the previous section, we conclude the jury found defendant guilty of involuntary manslaughter based on the ordinarily lawful act of accidentally leaving her prescription morphine out in an area accessible to Ryan. It is undisputed the instructions given required the jury to find criminal negligence for this theory of involuntary manslaughter. Defendant suffered no prejudice from the alleged instructional omission of which she complains.
V.
There Was No Error In The Trial Court’s Instructions On Causation
Defendant claims the trial court erroneously failed to sua sponte instruct the jury regarding unforeseeable, superseding causation as part of its instructions regarding proximate causation for count 1, the murder charge with manslaughter as a lesser offense. Defendant claims the trial court was required to give such an instruction, even though it was not requested, because it was vital to the jury’s consideration of the element of causation or defendant’s theory of superseding causation as a defense. According to defendant, the failure to sua sponte instruct was error because substantial evidence supported defendant’s theory at trial that Ryan’s death was caused by either Ryan or one of the other teenagers stealing defendant’s morphine or that Ryan obtained the morphine from an outside source. Defendant contends the failure to give the instruction is reversible error because it permitted the jury to convict defendant of involuntary manslaughter without considering whether a superseding act occurred, and, if so, whether it was foreseeable to a reasonable person in defendant’s position. We conclude the jury instructions given by the trial court adequately instructed the jury regarding the issue of causation in this case.
“The principles of causation apply to crimes as well as torts. [Citation.] ‘Just as in tort law, the defendant’s act must be the legally responsible cause (“proximate cause”) of the injury, death or other harm which constitutes the crime.’” (People v. Schmies (1996) 44 Cal.App.4th 38, 46-47; 1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Elements, § 35, p. 241.) Proximate causation has a meaning “peculiar to the law.” (People v. Bland (2002) 28 Cal.4th 313, 335; see Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 1053.) “A cause of the [death] 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 [death] and without which the [death] would not occur.” (CALJIC No. 3.40; see also People v. Roberts (1992) 2 Cal.4th 271, 319.) “A result cannot be the natural and probable cause of an act if the [chain of events] was unforeseeable.” (People v. Roberts, supra, at pp. 321-322.)
“‘In general, “[p]roximate cause is clearly established where the act is directly connected with the resulting injury, with no intervening force operating.”’ [Citation.] If an intervening act, event or force is present, however, it is necessary to determine whether that act, event or force is sufficient to absolve the defendant of liability ‘because the “defendant may also be criminally liable for a result directly caused by his or her act, even though there is another contributing cause.”’ [Citations.]” (People v. Brady (2005) 129 Cal.App.4th 1314, 1325.)
“[A]n ‘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.” [Citation.]’ [Citation.]” (People v. Funes (1994) 23 Cal.App.4th 1506, 1523.)
Here the trial court instructed the jury with CALJIC No. 3.40 (causation, quoted in part infra), CALJIC No. 3.41 (more than one cause/concurrent cause), CALJIC No. 8.55 (homicide - cause - defined), CALJIC No. 8.56 (homicide - negligence of deceased or third person), CALJIC No. 8.45 (involuntary manslaughter - defined), and CALJIC No. 8.46 (due caution and circumspection - defined). These instructions adequately covered the factual scenarios argued by defendant.
Defendant suggested in closing argument, and reasserts on appeal, it was most likely Brittany, Ryan or one of the other teenagers went upstairs and stole defendant’s morphine from defendant’s bedroom. Substantial evidence supported this theory. For example, as defendant points out, she denied giving Ryan any morphine and testified she believed she took the bottle of morphine upstairs with her when she went upstairs. There was evidence Brittany had previously stolen morphine from defendant and that Ryan had previously stolen drugs. Defendant left her house for a period of time during the evening of December 13, providing an opportunity for the theft. The police were initially told Ryan had taken the morphine from upstairs in defendant’s house. However, such evidence is not substantial evidence of an “intervening” cause, but is as respondent suggests, evidence of a “direct” cause of Ryan’s death. If the jury believed the evidence that Ryan or one of the teenagers stole the morphine from defendant’s bedroom, then the jury could not have found defendant guilty of involuntary manslaughter. Defendant’s possession of her prescription morphine upstairs in her bedroom would not “set[] in motion a chain of events [the theft of the morphine] that produce[d] as a direct, natural and probable consequence of the act or omission the [death] and without which the [death] would not occur.” (CALJIC No. 3.40.)
Defendant also asked the jury to “consider whether or not the morphine in [Ryan’s] system at the time of his death might have been from some other source than the defendant’s morphine.” Again, there was evidence that friends of Ryan had access to morphine tablets, that they would share drugs with Ryan, and that unmarked tablets were found in his backpack. If, however, the jury believed the fatal dose of morphine was obtained by Ryan from some other source than defendant, the cause of Ryan’s death was completely separate and apart from anything defendant did or did not do. Again, this was not substantial evidence of an “intervening” cause, but of an alternate cause. The theory was adequately covered by the instructions requiring the jury to find defendant caused Ryan’s death.
Defendant does not clearly express the argument, but to the extent she is contending defendant could have accidentally left the morphine downstairs in the kitchen (the scenario we have found to be the only reasonable basis for the jury’s verdict of involuntary manslaughter), that Ryan or one of the other teens could have stolen the morphine from the kitchen, and that such theft was an “intervening” cause, such theory was adequately covered by the instructions defining involuntary manslaughter and due caution and circumspection. (CALJIC Nos. 8.45 & 8.46.) Specifically, the instruction on due caution and circumspection states, in pertinent part: “The term ‘without due caution and circumspection’ refers to a negligent act[s] which are aggravated, reckless and flagrant and which are such a departure from what would be the conduct of an ordinarily prudent, careful person under the same circumstances as to be in disregard for human life, or an indifference to the consequences of such an act[s]. The facts must be such that the consequences of the negligent act[s] could reasonably have been foreseen.” (CALJIC No. 8.46, italics added.) Thus, the issue of foreseeability was properly placed before the jury and in convicting defendant of involuntary manslaughter, the jury must have determined the theft of morphine from the bottle left by defendant in the kitchen, to the extent such theft was an intervening act, was a “‘dependent’” intervening act and not a superseding 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.’” (People v. Funes, supra, 23 Cal.App.4th at p. 1523.) Only an act that is “‘unforeseeable . . . an extraordinary and abnormal occurrence, . . . rises to the level of an exonerating, superseding cause.’” (Ibid., quoting People v. Armitage (1987) 194 Cal.App.3d 405, 420-421.)
The issue of foreseeability was also specifically argued by the prosecution during its closing argument.
VI.
The Trial Court Did Not Err in Refusing Defendant’s Special Instruction No. 5
Defendant requested the trial court instruct the jury with her proposed special instruction No. 5, which stated:
“Evidence has been received concerning a statement said to have been made by the defendant. It is for you to determine whether the defendant did in fact make the statement. If you find that she did, then you must determine what weight, if any, you think the statement deserves. In determining what weight, if any, should be given the statement, you should consider all matters in evidence having to do with the statement, including those concerning the defendant’s personal characteristics, the conditions under which the statement was made, and the personal characteristics of the person who said that the defendant made the statement.”
The trial court stated it would “give the standard instructions set forth in CALJIC [Nos.] 2.70 and 2.71, in lieu of the special instruction number 5.” The trial court stated defendant’s proposed instruction was, “superfluous in light of the fact that the issue is covered already by the CALJIC instructions.”
Defendant claims the trial court’s rejection of her special instruction is reversible error as the refusal violated her constitutional rights to have the jury fully instructed regarding her alleged admissions that she challenged as involuntary and coerced. We disagree.
“A criminal defendant is entitled, on request, to instructions that pinpoint the theory of the defense case. [Citations.]” (People v. Gutierrez (2002) 28 Cal.4th 1083, 1142-1143.) “‘But a trial court need not give a pinpoint instruction if it is argumentative [citation] [or] merely duplicates other instructions [citation] . . . .’” (People v. Ramirez (2006) 39 Cal.4th 398, 470, quoting People v. Bolden (2002) 29 Cal.4th 515, 558.) An instruction is considered argumentative if it directs the jury to consider “‘specific evidence as such’” (People v. Wright (1988) 45 Cal.3d 1126, 1137) because such an instruction “‘invite[s] the jury to draw inferences favorable to one of the parties from specified items of evidence[.]’” (People v. Earp (1999) 20 Cal.4th 826, 886.)
The first two sentences of defendant’s special instruction No. 5 clearly duplicate the language of CALJIC Nos. 2.70 (confession and admission defined) and 2.71 (admission defined), which both instruct the jury, with respect to confessions and admissions by the defendant, that “[y]ou are the exclusive judges as to whether the defendant made a confession [or an admission].” The third sentence of defendant’s proposed instruction that, “[i]f you find that she did [make the statement], then you must determine what weight, if any, you think the statement deserves[,]” is also fairly covered by the language in CALJIC Nos. 2.70 and 2.71 that, “and if so, whether that statement is true in whole or in part.”
Defendant’s proposed instruction goes on to instruct the jury to “consider all matters in evidence having to do with the statement, including” three particular identified factors. The first and third factors - “the defendant’s personal characteristics” and “the personal characteristics of the person who said that the defendant made the statement” are covered by and duplicates CALJIC No. 2.20 regarding the believability of a witness.
The second factor, the only portion of defendant’s proposed instruction not precisely covered by other instructions, directs the jury to consider “the conditions under which the statement was made[.]” This factor is arguably argumentative because it essentially emphasizes and directs the jury to defendant’s specific evidence (People v. Earp, supra, 20 Cal.4th at p. 886).
Lastly, even if the trial court erred in refusing the defendant’s proposed instruction, we see no prejudice to defendant. CALJIC Nos. 2.70 and 2.71 plainly instructed the jury to consider whether defendant’s admissions were true, in whole or in part. It is self-evident, a matter of commonsense, to any jury that such determination requires consideration of why or why not the admissions might be true or false or true in part and false in part. CALJIC No. 2.20 guided the jury’s consideration of the believability of all witnesses and the jury naturally would have considered defendant’s personal characteristics and the conditions of the interrogations in making such determination (and no instruction told the jury not to consider such evidence). And, such matters were emphasized over and over in the examination of Honea, Holmes, Globus, and defendant, as well as forming a substantial portion of defendant’s closing argument. Under any standard of prejudice, if there was error it was harmless.
VII.
The Trial Court’s Error In Not Instructing The Jury To View Defendant’s Oral Admissions With Caution Was Harmless
A trial court ordinarily has a sua sponte duty to instruct the jury that evidence of a defendant’s oral admissions must be viewed with caution. (People v. Slaughter (2002) 27 Cal.4th 1187, 1200; People v. Beagle (1972) 6 Cal.3d 441, 455, superseded by statute on other grounds; People v. Rogers (1985) 173 Cal.App.3d 205, 208-209.) “The purpose of the cautionary instruction is to assist the jury in determining if the statement was in fact made. [Citation.]” (People v. Beagle, supra, at p. 456.) Accordingly, the cautionary instruction is inapplicable, and should not be given, if the oral admission was tape recorded and the tape recording is admitted into evidence. (People v. Slaughter, supra, at p. 1200; People v. Mayfield (1997) 14 Cal.4th 668, 776.)
Here, the prosecution requested the trial court delete the last sentence of CALJIC Nos. 2.70 and 2.71 that evidence of out-of-court oral admissions or confessions must be viewed with caution because defendant’s statements were tape recorded. Defendant objected that not all of the alleged admissions were tape-recorded because they were not all “audible” or “comprehensible.” Focusing entirely on the tapes of defendant’s statements, the trial court noted everybody had agreed the transcripts accurately reflected the interrogation and so granted the prosecution’s request.
Defendant now points out Megan testified that when defendant saw the rum Megan had brought, defendant said, “That’s all you have?” and threw down to the teens a half-gallon bottle of vodka. Christa testified defendant on another occasion had told her to help herself to vodka. Megan also testified defendant came downstairs with her morphine the evening of December 13 and “asked if we wanted any.” We note, in addition, three of the teenagers testified to variations of a statement by defendant referring to her morphine that, “If you guys really want to get fucked up later, I have some of this.” The trial court should have kept the cautionary language of CALJIC No. 2.70 and CALJIC No. 2.71 in the instructions it gave to the jury as there was evidence of additional unrecorded arguable admissions by defendant.
However, the trial court’s failure to give the cautionary language does not require reversal on the facts of this case. Failure to instruct the jury to view evidence of defendant’s oral admissions with caution constitutes reversible error only if, upon a reweighing of the evidence, it appears reasonably probable that the jury would have reached a result more favorable to defendant. (People v. Carpenter (1997) 15 Cal.4th 312, 393; People v. Watson, supra, 46 Cal.2d at p. 836.) We conclude the error was harmless.
At issue was whether Megan, Brittany, Lynn and Christa were credible witnesses or had fabricated their testimony with respect to defendant’s unrecorded statements. The jury was instructed with CALJIC No. 2.20 (believability of witness), CALJIC No. 2.13 (prior consistent or inconsistent statements as evidence), CALJIC No. 2.21.1 (discrepancies in testimony), CALJIC No. 2.21.2 (witness willfully false), CALJIC No. 2.22 (weighing conflicting testimony), and CALJIC No. 2.27 (sufficiency of testimony of one witness). These instructions adequately alerted the jury to view the testimony of the teenagers with caution. (People v. Sanders (1995) 11 Cal.4th 475, 536; People v. Bunyard (1988) 45 Cal.3d 1189, 1224-1225; People v. Shoals (1992) 8 Cal.App.4th 475, 499.) That the jury did so is evidenced by the fact the jury acquitted defendant of murder and four of the eight counts of furnishing morphine. A more favorable result was therefore not reasonably probable. (People v. Sanders, supra, at p. 537.)
VIII.
The Trial Court Did Not Abuse Its Discretion In Denying Defendant’s Request For Funding For The Services Of Dr. Ofshe
Defendant filed a pretrial sealed ex parte motion to appoint Dr. Richard Ofshe, an expert on false confessions, as a defense expert at government expense. Defendant sought to have Dr. Ofshe analyze the videotapes of defendant’s interrogations to provide an opinion as to the techniques utilized by law enforcement and the likelihood that defendant’s confessions were false or unreliable. The trial court denied the motion by minute order without comment. Defendant contends on appeal the denial was prejudicial error. We disagree.
“An indigent defendant has a statutory and constitutional right to ancillary services reasonably necessary to prepare a defense. [Citations.] The defendant has the burden of demonstrating the need for the requested services. [Citation.] The trial court should view a motion for assistance with considerable liberality, but it should also order the requested services only upon a showing they are reasonably necessary. [Citation.] On appeal, a trial court’s order on a motion for ancillary services is reviewed for abuse of discretion. [Citations.]” (People v. Guerra, supra, 37 Cal.4th at p. 1085.) An abuse of discretion is established when the circumstances shown compelled the trial court “to exercise its discretion only in one way, namely, to grant the motion. [Citation.]” (Corenevsky v. Superior Court (1984) 36 Cal.3d 307, 323.)
Defendant’s motion stated defense counsel’s opinion that the videotaped interrogation of defendant needed to be analyzed by an expert in the subject of false confessions. In support of the motion, defendant submitted a declaration of one of her attorneys. In the declaration, counsel states she has viewed the videotape of defendant’s March 25 interrogation, that defendant is clearly under the influence of a drug, that defendant makes it plain she does not have an actual memory of that night, and that her eventual responses were based on what the officers were telling her other witnesses had said. Counsel asserts “the entire interview contains coercive tactics on the part of the interviewers[.]” Counsel claims it is clear to her “the investigators were telling [defendant] what to say,” and “making her believe their version of events.”
Defendant’s supporting declaration describes defendant’s medical condition and her responses to the investigators’ questioning, matters that were the subject of other appointed defense witness expertise, but contains only conclusory statements aimed at establishing reasonable need for the services of Dr. Ofshe. Defendant does not identify the allegedly coercive tactics pervasively used by the officers. She does not establish that telling a suspect what other witnesses have told law enforcement is a coercive tactic. She does not provide the basis for her statement that the officers were telling defendant what to say or explain how the officers were allegedly “making” defendant believe their version of events. Although defense counsel states in the declaration that she has already talked to Dr. Ofshe, the declaration does not provide any factual correlation between what occurred in defendant’s interviews and Dr. Ofshe’s opinions regarding police interrogation techniques. (Compare Miller v. Indiana (2002) 770 N.E.2d 763, 770-772.) Given the minimal information regarding what the officers were actually saying and doing during the interrogation, we cannot say defendant showed circumstances that compelled the trial court “to exercise its discretion only in one way, namely, to grant the motion.” (Corenevsky v. Superior Court, supra, 36 Cal.3d at p. 323.) We cannot find the trial court abused its discretion in denying funding for defendant’s proposed expert.
For example, Holmes and Globus both testified regarding defendant’s ability to concentrate, understand, and truthfully respond to the officers’ questioning given her medical and psychological condition.
IX.
Imposition Of An Aggravated Term Sentence On Count 1 (involuntary manslaughter) And A Consecutive Sentence On Count 4 (furnishing morphine to Jessica)
The trial court imposed an upper term of four years for defendant’s conviction of involuntary manslaughter (count 1), stayed pursuant to section 654. The court imposed a consecutive one-third of the middle term or two years for count 4, the furnishing of a controlled substance to Jessica P. Defendant claims these sentences violated her federal constitutional right to jury trial under Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi), Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403](Blakely), and Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham). We conclude the consecutive sentence on count 4 did not violate defendant’s federal constitutional rights, but remand for resentencing as to count 1. We explain.
In Apprendi, supra, 530 U.S. 466 [147 L.Ed.2d 435], the United States Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Id. at p. 490 [147 L.Ed.2d at p. 455].)
In Blakely, the Supreme Court applied the rule of Apprendi to invalidate a state court sentence. The high court explained that “the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” (Blakely, supra, 542 U.S. at p. 303 [159 L.Ed.2d at p. 413].)
In Cunningham, the Supreme Court applied Apprendi and Blakely to California’s determinate sentencing law and held that by “assign[ing] to the trial judge, not to the jury, authority to find the facts that expose a defendant to an elevated ‘upper term’ sentence,” California’s determinate sentencing law “violates a defendant’s right to trial by jury safeguarded by the Sixth and Fourteenth Amendments.” (Cunningham, supra, at p. ___ [166 L.Ed.2d at p. 864], overruling People v. Black (2005) 35 Cal.4th 1238 (Black I) on this point.)
On remand for reconsideration in light of Cunningham, the California Supreme Court in People v. Black (2007) 41 Cal.4th 799 (Black II), concluded “that imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (Id. at p. 816.) The Supreme Court took a broad view of the scope of the prior conviction exception. (Id. at pp. 820-823.) The Supreme Court also concluded Cunningham did not call into question its prior conclusion that, “[t]he determination whether two or more sentences should be served [consecutively] is a ‘sentencing decision[] made by the judge after the jury has made the factual findings necessary to subject the defendant to the statutory maximum sentence on each offense’ and does not ‘implicate[] the defendant’s right to a jury trial on facts that are the functional equivalent of elements of an offense.’” (Id. at p. 823, quoting Black I, supra, 35 Cal.4th at p. 1264.)
In People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval), a companion case to Black II, the California Supreme Court determined the defendant’s constitutional rights to jury trial were violated by the imposition of an upper term sentence. (Id. at p. 838.) The court stated the test for harmless error (Washington v. Recuenco (2006) ___ U.S. ___ [165 L.Ed.2d 466]) was whether the reviewing court could conclude, “beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury[.]” (Sandoval, supra, at p. 839.) Applying such test, the court concluded the error could not be found harmless. (Id. at pp. 840-844.) The imposition of the upper term was reversed and the case remanded for resentencing (id. at pp. 843, 858), “to be conducted in a manner consistent with the amendments to the [Determinate Sentencing Law] adopted by the Legislature.” (Id. at p. 846.) The court rejected the arguments that such resentencing would deny defendant due process of law and violate the prohibition against ex post facto laws. (Id. at pp. 852-857.)
Applying these principles to this case, it is clear the trial court’s imposition of a consecutive sentence on count 4 did not violate defendant’s constitutional rights under Apprendi, Blakely, and Cunningham. (Black II, supra, 41 Cal.4th at p. 822.)
With respect to the trial court’s imposition of an upper term on count 1, we note the trial court failed to state any facts or reasons for its imposition. Defendant’s failure to object at the time to this lack of statement of reasons forfeits for appeal any error in such failure. (People v. Scott (1994) 9 Cal.4th 331, 356.) However, defendant did specifically object to the trial court finding aggravating facts based on Blakely, preserving such claim of error.
Defendant’s sentencing took place on June 20, 2005, the day the California Supreme Court issued its decision in Black I.
In the absence of stated facts and reasons, we have reviewed the record to determine what aggravating circumstances were present on which the trial court could have based its decision. Our review of the record indicates defendant’s only other criminal conviction was for driving under the influence, a conviction sustained four days after the date of these offenses. Defendant was granted probation. Thus, defendant’s record does not reflect numerous or increasingly serious prior convictions. (Cal. Rules of Court, former rule 4.421(b)(1).) She has not served a prior prison term (rule 4.421(b)(2)) and was not on probation or parole when these crimes were committed. (Rule 4.421(b)(3).) She had no prior performance of any kind on probation or parole. (Rule 4.421(b)(4).) The record does not reflect any other recidivist factors. The record also does not reflect defendant admitted any aggravating circumstance. Further, the jury’s verdict does not establish any aggravating circumstance on which the trial court could have relied. Based on this record, we conclude the trial court must have engaged in prohibited factual finding in violation of defendant’s Sixth Amendment rights by imposing the upper term sentence.
We reference the rules of court in effect at the time of sentencing, recognizing the rules have since been amended. Further undesignated rule references are to the California Rules of Court as they existed at the time of defendant’s sentencing.
We can conclude such error was harmless if we can say, “beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury[.]” (Sandoval, supra, 41 Cal.4th at p. 839.) Respondent contends the jury would have found true beyond a reasonable doubt the following aggravating circumstances: “(1) the crime involved great bodily harm to the victim (rule 4.421(a)(1)); (2) the victim was particularly vulnerable (rule 4.421(a)(3)); and (3) appellant occupied a position of leadership in the commission of the crime (rule 4.421(a)(4)).”
We agree with defendant that use of the first of respondent’s identified aggravating circumstances, while established by the jury’s verdict of involuntary manslaughter, would be a prohibited dual use of facts. (Rule 4.420(d) [“A fact that is an element of the crime shall not be used to impose the upper term”].) An element of defendant’s conviction of involuntary manslaughter in count 1 was a killing of a human being. (See CALJIC No. 8.45.) Death necessarily involves great bodily harm to the victim. The trial court could not have used the great bodily harm inherent in Ryan’s death as an aggravated circumstance to impose the upper term on defendant for her involuntary manslaughter conviction.
We cannot conclude beyond a reasonable doubt that the remaining two factors identified by respondent unquestionably would have been found true had they been submitted to the jury. Defendant strongly argued against their use in her sentencing statement submitted to the trial court. The record supports those arguments.
While Ryan was still a minor at the time of his death, he was not a small child. He was a difficult teenager, already a substance abuser, and on formal probation with the juvenile court, released to his mother’s custody on an electronic monitoring program. He willingly drank alcohol and took various drugs in the days just prior to his death. There is no evidence defendant forced or cajoled him into taking her morphine. He wanted to take the drug. As we discussed earlier, it appears the jury convicted defendant of involuntary manslaughter based on a finding of criminal negligence in leaving her prescription morphine out in an area accessible to Ryan. While a jury could have viewed Ryan as particularly susceptible to the temptation of drugs left unattended, a reasonable jury could also have concluded Ryan was old enough and sophisticated enough about drugs to appreciate the danger of taking a large dose of prescription morphine. We cannot say beyond a reasonable doubt that a jury would have unquestionably found Ryan to have been a “particularly vulnerable” victim. (Rule 4.421(a)(3).)
As to the third factor, the record is in conflict as to whether defendant made an initial offer of her morphine to the teens or if she gave them the morphine at their request or if the teens simply helped themselves to her morphine after she gave them a “taste.” It does appear the jury found Ryan obtained the fatal dose of morphine when defendant left her morphine downstairs accessible to the teens. On this record we cannot say beyond a reasonable doubt that a jury would have unquestionably found defendant occupied a position of “leadership” in the commission of the crime. (Rule 4.421(a)(4).)
The violation of defendant’s Sixth Amendment right to trial by jury was not harmless beyond a reasonable doubt. The imposition of the upper term sentence on count 1 must be reversed and the case remanded to the trial court for resentencing “in a manner consistent with the amendments to the [Determinate Sentencing Law] adopted by the Legislature.” (Sandoval, supra, 41 Cal.4th at p. 846.)
DISPOSITION
The upper term sentence imposed on count 1 is reversed. In all other respects the judgment is affirmed. The case is remanded to the trial court with directions to resentence defendant on count 1 in a manner consistent with the amendments to the Determinate Sentencing Law adopted by the Legislature.
We concur: DAVIS, Acting P.J., HULL, J.