Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCE282395, Herbert J. Exharos, Judge.
HUFFMAN, J.
A jury convicted Shannon Kelly Shimp of two counts of gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a)), and two counts of driving under the influence of alcohol causing injury (Veh. Code, § 23153, subds. (a), (b)). The jury also found true the allegation that Shimp caused bodily injury and death to multiple victims in the commission of all four counts (§ 12022.7, subd. (a); Veh. Code, § 23558). The court sentenced Shimp to 16 years in prison.
All further statutory references are to the Penal Code unless otherwise indicated.
Shimp appeals, contending the court erred by (1) failing to instruct the jury on excusable homicide, and (2) improperly imposing a $30 court security fee for each conviction. We affirm the judgment.
FACTS
On July 22, 2008, Shimp and a friend, Joseph Edwards, entered Molly Malone's bar in Ramona at approximately 2:00 p.m. Over the next 15 minutes, Shimp drank two long island iced teas, each containing four shots of liquor. Between 3:00 p.m. and 5:00 p.m., Shimp drank a third long island iced tea, at which point the bartender cut him off. Edwards drank one long island iced tea and three beers during the same period and did not appear as intoxicated as Shimp. Shimp and Edwards left the bar around 5:00 p.m. The bartender told Shimp not to drive, and Edwards indicated to the bartender that he would drive. Despite this, Shimp was the one who drove home.
While driving, Shimp crossed the double yellow line on a blind curve to pass several vehicles on Highway 78. When he attempted to reenter his lane, he nearly struck a van he was attempting to pass, lost control of the vehicle, crossed the double yellow line again, and struck victim Ian Kinney's car head on. The crash killed both Edwards and Kinney and injured the passenger in Kinney's car, Tessa Medearis. Shimp's blood alcohol content was 0.19, more than twice the legal limit. He also had methamphetamine in his system. Witnesses described Shimp's demeanor as "cavalier" and belligerent after the accident, and he was observed giving the thumbs up sign in accident scene photos.
At trial, Shimp presented evidence of low tire pressure in his two rear tires. He argued that this low pressure caused him to lose control of his truck while turning, and therefore the accident was out of his control.
Shimp was convicted and sentenced to 16 years in prison. At sentencing, the court imposed a $30 court security fee for each of the four counts he was convicted of, for a total of $120. (§ 1465.8, subd. (a)(1).)
DISCUSSION
I
THE TRIAL COURT HAD NO DUTY TO INSTRUCT ON EXCUSABLE HOMICIDE
We review claims that a court failed to properly instruct the jury on the applicable principles of law de novo. (People v. Martin (2000) 78 Cal.App.4th 1107, 1111 (Martin).) Shimp contends the court committed reversible error by failing to instruct the jury on CALCRIM No. 510 regarding excusable homicide resulting from an accident or emergency. We find no instructional error.
CALCRIM No. 510 states, in relevant part: "The defendant is not guilty of murder if he killed someone as a result of accident or misfortune. Such a killing is excused, and therefore not unlawful, if 1) the defendant was doing a lawful act in a lawful way; 2) the defendant was acting with usual and ordinary caution; and 3) the defendant was acting without any unlawful intent."
The People contend Shimp failed to request CALCRIM No. 510 at trial and the issue is therefore waived on appeal. Assuming without deciding the issue has not been waived, we address the alleged instructional error on the merits.
Shimp contends that the trial court had a sua sponte duty to instruct the jury on CALCRIM No. 510 because of the tire pressure evidence he presented. He argues that the omission of such an instruction lowered the People's burden of proof by not giving the jury the option of considering whether the accident was excusable homicide.
The proper test for judging the adequacy of instructions is whether the trial court fully and fairly instructed on the applicable law. (Martin, supra, 78 Cal.App.4th at p. 1111. " 'In determining whether error has been committed in giving or not giving jury instructions, we must consider the instructions as a whole... [and] assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given. [Citation.]' " (People v. Yoder (1979) 100 Cal.App.3d 333, 338.) "Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation." (People v. Laskiewicz (1986) 176 Cal.App.3d 1254, 1258.)
The trial court has a sua sponte duty to instruct on lawful acts that excuse homicide when there is sufficient evidence supporting that defense; however, it has no duty to do so when there is insufficient evidence supporting such a defense. (People v. Bloyd (1987) 43 Cal.3d 333, 354-355.)
The record does not support an instruction on excusable homicide due to an accident or emergency. CALCRIM No. 510 allows the jury to find a homicide excusable if the defendant was doing a lawful act in a lawful manner using ordinary caution and without unlawful intent. Nothing in the record indicates that Shimp acted in a lawful manner or used ordinary caution, and the People presented substantial evidence in favor of his guilt. He drove with a blood alcohol content of 0.19 after drinking the equivalent of 12 shots of hard liquor in the preceding three hours. He indicated to the bartender that he would not drive, then did so anyway. Finally, while driving in rush hour traffic, he sped and passed other cars on a double yellow line around a blind curve.
While Shimp did present evidence of low tire pressure, it was not information that required a jury instruction on a sudden or unexpected emergency excusing homicide. Driving with tire pressure low enough to cause an accident is not a lawful act conducted with ordinary caution. A driver acting lawfully with ordinary caution would drive with properly inflated tires. (See Cal. Code Regs., tit. 17, § 95550.) As the owner of the truck, and the tires, it was his responsibility to ensure that he was driving with adequate tire pressure. (Ibid.) Therefore, the trial court did not err when it did not instruct the jury on CALCRIM No. 510.
II
THE TRIAL COURT DID NOT ERR IN IMPOSING A $30 COURT SECURITY FEE FOR EACH CONVICTION
Shimp also contends that the $30 court security fee per conviction was improperly imposed. Because the fee was $20 per conviction at the time of the offense, and $30 at the time of conviction, and the statute contains no provision for retroactive application, he argues that the $20 fee should apply. We review such claims de novo. (See People v. Castillo (2010) 182 Cal.App.4th 1410, 1414.)
At the time of sentencing, section 1465.8, subdivision (a)(1), stated, in relevant part: "To ensure and maintain adequate funding for court security, a fee of thirty dollars ($30) shall be imposed on every conviction for a criminal offense...." If the language of a statute is plain and unambiguous, words should be given the meaning they bear in ordinary use, unless doing so would contravene the Legislature's intent. (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735.)
In 2010, the Legislature increased this fee to $40 per conviction. (Stats. 2010, ch. 720, § 33.)
Here, the statute clearly and plainly states that the fee is imposed for every conviction, not every criminal offense. (§ 1465.8, subd. (a)(1).) A plain reading of the statute's text leads us to conclude that the statute applies to the date of the conviction, not the date of the offense. This is in line with the Legislature's stated intent of increasing fees for each conviction to fund court security, not to punish. (Ibid.) Since offenses are not convictions, the court imposed the correct court security fee. (People v. Alford (2007) 42 Cal.4th 749, 754 [fee increase applies to all convictions obtained after the operative date, regardless of the date of the offense].)
DISPOSITION
The judgment of the trial court is affirmed.
WE CONCUR: BENKE, Acting P. J., O'ROURKE, J.