Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. FCR23811
NEEDHAM, J.
Nicola Christopher Bucci (Bucci) appeals from a judgment of conviction and sentence, which was imposed after a jury found him guilty of second degree murder arising from a head-on collision in 2006 that left two people dead and two seriously injured. (Pen. Code, § 187, subd. (a).) Bucci contends: (1) the court erred in admitting evidence of his 1994 fatal traffic collision, which was caused when he fell asleep while driving; (2) evidence that he was speeding uphill in the wrong lane while attempting to pass vehicles in a no-passing zone was insufficient for the finding of implied malice necessary for second degree murder; (3) the court should have instructed the jury on accident and excusable homicide; (4) the court erred in refusing to instruct the jury on mistake of fact; (5) the court wrongly excluded evidence that Bucci was convicted of vehicular manslaughter for the 1994 fatal traffic collision; (6) the prosecutor engaged in misconduct in arguing that Bucci had gotten away with killing two people previously; and (7) section 12022.7, which imposes a sentence enhancement for the infliction of great bodily injury, does not apply to convictions for murder or manslaughter.
Except where otherwise indicated, all statutory references are to the Penal Code.
We will affirm the judgment.
I. FACTS AND PROCEDURAL HISTORY
An information charged Bucci with two counts of murder. (§ 187, subd. (a).) In connection with both counts, it was alleged that he personally inflicted great bodily injury upon a third victim within the meaning of section 12022.7, subdivision (a), and personally inflicted great bodily injury upon a fourth victim within the meaning of section 12022.7, subdivision (b). Bucci entered a plea of not guilty and denied the allegations.
After a preliminary hearing, the prosecution filed an in limine motion seeking to introduce evidence that Bucci had been involved in a highway collision in 1994 that resulted in the death of two other people, for the purpose of establishing Bucci’s knowledge of the danger of falling asleep while driving. The court granted the motion. The matter proceeded to trial.
A. Prosecution Case
1. Eye-witnesses Johnson and Fender
Witness Kim Johnson testified that around 6:30 p.m. on November 17, 2006, she was driving eastbound on Highway 12, a two-lane highway. Traffic was heavy in both the eastbound and westbound lanes. Johnson was driving at the 55-mile-per-hour speed limit. She looked in her rear view mirror and saw a silver SUV pass her vehicle in the westbound lane, then pull in front of her vehicle in the eastbound lane. The silver SUV was “driving really fast.” Johnson estimated its speed at 65 to 70 miles per hour.
Passing was prohibited in this section of Highway 12. Nevertheless, the silver SUV pulled back into the westbound lane and accelerated up a hill, attempting to pass more vehicles. At the crest of the hill, the SUV collided head-on with a small red car in the westbound lane. The SUV flipped in the air and landed in a field. The small car was severely damaged and burning in the westbound lane.
Johnson pulled over and ran to the small red car. The driver was screaming, and Johnson said she would get her out of the vehicle. A man (whom Johnson identified at trial as Bucci) also approached the small vehicle, and Johnson asked him “to go check the SUV to see if anybody was in the SUV was okay [sic].” Bucci responded, “It was me, I was driving.” Johnson asked Bucci to help her extract the driver from the burning vehicle. Bucci threw up his hands and said, “Oh, my God. What I have done [sic]?” When Johnson again asked Bucci to help her, Bucci responded, “I can’t, ” and walked away. Another person at the scene (Jerry Fender) helped Johnson remove the driver from the burning red car.
Jerry Fender testified that he was driving eastbound on Highway 12 around 6:30 p.m. on November 17, 2006. He confirmed that Highway 12 is a two lane highway with one eastbound lane and one westbound lane, with a speed limit of 55 miles per hour. Fender was travelling about 50 miles per hour behind two “semi tractor trail[e]rs.” An SUV passed his vehicle at about 70-80 miles per hour, even though there was “a solid yellow line on the east bound lane indicating no passing.” The SUV did not veer or move erratically, but proceeded in a “straight-ahead, aggressive passing maneuver like you would normally do on a flat stretch of road.” The SUV accelerated eastbound in the westbound lane, passing one of the semi-trailers and attempting to pass the second. When the SUV reached the crest of a hill, it collided head-on with a red Toyota.
On the night of the accident, Fender told the police he believed that Bucci’s vehicle was traveling 65 to 70 miles per hour. By either account, it was at least 10 miles per hour over the posted speed limit.
After passing the collision, Fender made a U-turn, stopped his vehicle, and turned on his hazard lights to prevent other vehicles from colliding with the wrecked Toyota, which had come to a stop in the westbound lane. The SUV ended up in a field. When Fender saw that the Toyota was on fire, he retrieved a fire extinguisher from his vehicle and approached the Toyota, where he saw a woman and three young children inside.
2. Victim Jackson
Victim Regina Jackson testified that, around 6:30 p.m. on November 17, 2006, she was returning home to Fairfield from Rio Vista in her red Toyota Corolla. In the car with her were three passengers: her children Jordan and Immanuel; and Demari H., the child of a friend.
As Jackson drove westbound on Highway 12, she suddenly saw a “car coming head-on into us passing two diesel trucks – trying to pass two diesel trucks coming over a hill.” Jackson testified, “I tried to go over to the right, but I couldn’t. There was nowhere I could go.” There was a head-on collision just as she crested the hill.
As a result of the collision, Jackson suffered debilitating injuries, including a broken femur, knee, hip, and foot, with additional injuries to her forehead, eye, and mouth. She remained in the hospital for over two months. Imannuel and Demari H. died as the result of the injuries they suffered in the accident; Jordan became paralyzed from the waist down.
3. Investigation
Jason Bryant, an emergency medical technician, responded to the scene. Bryant contacted Bucci and found him to be uninjured except for pain in his elbow and back. Bucci stated he was the driver of one of the vehicles in the collision. He told Bryant that he believed he “fell asleep at the wheel.” Bucci appeared emotionally upset and in tears, but was “cogent and responsive” to questions and gave “logical, reasonable answers.”
California Highway Patrol Officer Patricia Rodriguez conducted an accident investigation at the scene. She confirmed there was a solid yellow line indicating a no-passing zone for eastbound traffic going up the hill where the collision occurred. She concluded that the red Toyota was going westbound and was struck head-on by the SUV that was travelling eastbound in the westbound lane.
California Highway Patrol Officer Michael Ervin also responded to the scene. Ervin contacted Bucci, who was cogent and lucid and admitted he was the owner and driver of the SUV. According to the officer’s report, Bucci told the officer: He “momentarily fell asleep, dozed off, realized he was traveling in the wrong lane. Tried to speed up to pass a truck that was alongside of him. Saw the victim vehicle coming towards him. And swerved to the left, and the impact took place.”
Officer Ervin asked Bucci if he had any health problems that might have contributed to the accident. Bucci replied that he had sleep apnea, but he denied being tired at the time of the accident. He did not claim to have been exposed to any substance that could cause him to lose consciousness.
Based upon witness interviews and investigation of the scene, Officer Ervin concluded that Bucci had violated the Vehicle Code by crossing over a solid yellow roadway line that prohibited passing and by attempting to pass while going up a hill. In short, Ervin asserted, Bucci was “attempting to pass a passenger vehicle and two semi-trucks uphill going the wrong way.” The officer acknowledged that it was highly dangerous to drive well in excess of the posted speed limit in order to pass multiple vehicles approaching the crest of the hill.
It was stipulated that testing found no drugs or alcohol in Bucci’s system. There were no skid marks on the road indicating that Bucci tried to apply his brakes before the collision.
4. Bucci’s Prior Fatal Collision in 1994
The prosecutor introduced evidence that Bucci was involved in a head-on collision on Highway 80 in January 1994. Travelling westbound, Bucci’s pickup truck proceeded on the right shoulder for over one thousand feet, then veered across the two westbound lanes and the dirt center median before colliding head-on with a Cadillac sedan in the eastbound lane. The occupants of the Cadillac died as a result of the collision. At the scene, Bucci told California Highway Patrol Officer Ty Brown that he had been up all night gambling at casinos in Reno. He also admitted drinking alcohol and smoking marijuana. Bucci stated that he apparently fell asleep or blacked out while driving and awoke just before the collision. Officer Brown concluded that the circumstances of the accident were consistent with Bucci’s claim.
B. Defense Case
1. Bucci
As to the 1994 traffic accident, Bucci explained that he had been awake for over 30 hours and fell asleep at the wheel; when he woke up, his car was out of control and he collided with another car.
As to the charged crimes, Bucci testified that on Friday, November 17, 2006, he was working as a sous chef at Google’s main headquarters in Mountain View. Over the weekend Google was going to conduct tests related to transferring from electrical power to solar power, and during those tests, the electrical energy would be shut off. Therefore, 150 pounds of dry ice had been placed in a 10-foot by 20-foot walk-in freezer. Bucci was not warned of any hazards of exposure to dry ice.
On November 17, Bucci inspected the food inventory of the walk-in freezer containing the dry ice. After 10-15 minutes inside the freezer, he became dizzy and short of breath. He left the freezer and, when he went back in to complete his work, experienced the same thing. He testified, “I really don’t remember a lot of stuff after that second time.” He had never experienced any adverse effects after being in the walk-in freezer before.
Other Google employees confirmed at trial that dry ice was placed in the refrigerators and freezers and no safety instructions or information concerning the proper handling of dry ice were given to Bucci. One employee testified that Bucci had appeared healthy and normal at work, but later in the day he appeared drawn, pale, and ill. Bucci told him that while in one of the walk-in freezers, he experienced dizziness that caused him to fall on a rack and hurt his arm. He also complained of a severe headache.
Around 3:00 p.m., Bucci left work and began driving from Mountain View to Lodi. He testified that he could recall only “bits and pieces” of the evening. He did not know how he found his vehicle in the parking lot. He did not know how he got to Highway 12, which was not his intended route. He denied any recollection of driving up an incline or trying to pass a truck. He remembered “a Jack-in-the-Box and, uh, a tractor-trailer [to the right of him] and then, uh, lights, and I, uh - I had swerved, I swerved to the left and I saw the lights.” Then the collision occurred. The next thing he remembered was being in an ambulance.
On cross-examination, Bucci acknowledged that he learned from the 1994 incident that you can likely kill someone if you fall asleep at the wheel. Bucci denied any recollection of telling EMT Bryant, at the scene of the 2006 accident, that he fell asleep at the wheel. Bucci also acknowledged knowing, as of November 2006, that passing on a two-lane highway could be dangerous, and passing in the wrong lane on a two-lane highway can be extremely dangerous to oncoming traffic. He was also aware that “passing uphill over a solid no-pass line towards the crest of a hill where you can’t see is life-endangering, ” and “passing multiple vehicles at night uphill in excess of a speed limit over the solid line is likely to kill somebody.” Bucci asserted that he would never pass uphill in a no-passing zone and could not remember it happening.
2. Expert Witnesses
Bucci presented medical experts who testified that exposure to large amounts of carbon dioxide can result in hypoxia, or oxygen deprivation to the brain. Hypoxia can cause mental impairment and loss of cognitive function. Specific symptoms could include loss of memory and difficulties in attention and concentration. It might affect a person’s ability to perform complex tasks such as driving an automobile at night and passing other motor vehicles.
Neuropsychologist Darcy Cox opined that Bucci’s actions after being exposed to dry ice were consistent with his having a severe hypoxic episode: his lack of memory, changes in vision, feeling tired, feeling dizzy and confused, and driving out of his way. Dr. Cox also opined that Bucci was clinically depressed and was suffering from post-traumatic stress disorder based on his involvement in the previous fatal accident in 1994. Because of this disorder, she reasoned, Bucci must have assumed that the second accident in 2006 was caused because he fell asleep at the wheel again, and this may have been the reason he stated at the scene of the 2006 accident that he believed he fell asleep.
C. Jury Verdict and Sentence
The jury convicted Bucci of both counts of second degree murder. The jury also found the enhancement allegations under section 12022.7, subdivisions (a) and (b), to be true.
After denying Bucci’s motion for a new trial, the court sentenced Bucci to state prison for the aggregate term of 23 years to life, comprised of: 15 years to life on count one; a concurrent 15 years to life on count two; three years consecutive for the great bodily injury allegation under section 12022.7, subdivision (a); and five years consecutive for the great bodily injury allegation under section 12022.7, subdivision (b).
This appeal followed.
II. DISCUSSION
We address each of Bucci’s contentions in turn.
A. Admission of 1994 Fatal Traffic Collision
Bucci contends the court erred in granting the prosecutor’s motion to admit evidence of the 1994 fatal collision that was caused when Bucci fell asleep, for the limited purpose of showing that Bucci knew in 2006 that falling asleep while driving on a highway is dangerous to life. We disagree.
The prosecutor had also sought to introduce evidence of Bucci’s prior convictions for vehicular manslaughter, which resulted from the incident. The prior convictions themselves were not specifically addressed at the hearing on the in limine motion. No evidence of the convictions or disposition was introduced at trial.
1. The Law
Evidence of uncharged misconduct is inadmissible to prove a defendant’s criminal disposition to commit the charged crime. (Evid. Code, § 1101, subd. (a).) However, such evidence may be admissible if offered to prove other facts such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or consent. (Evid. Code, § 1101, subd. (b).)
In vehicular murder cases, as here, the prosecutor must prove that the defendant acted with implied malice. (People v. Watson (1981) 30 Cal.3d 290, 300.) Implied malice may be established by prior crimes evidence admissible under Evidence Code section 1101, subdivision (b). (People v. Ortiz (2003) 109 Cal.App.4th 104, 111-113 (Ortiz).) “[C]ourts have recognized repeatedly that a motor vehicle driver’s previous encounters with the consequences of recklessness on the highway – whether provoked by the use of alcohol, of another intoxicant, by rage, or some other motivator – sensitizes him to the dangerousness of such life-threatening conduct.” (Id. at p. 112.) “Here, the evidence of prior driving conduct was offered to prove an intermediate fact (knowledge that conduct is life threatening) necessary to the establishment of the ultimate fact of implied malice, an element in the charges of second degree murder.” (People v. Eagles (1982) 133 Cal.App.3d 330, 340 [evidence of excessive speed resulting in a near collision is relevant to knowledge of the great risk of harm of excessive speed].)
For uncharged misconduct to be admissible, it must be sufficiently similar to the charged offenses, and the probative value of the evidence must be both substantial and not largely outweighed by the probability that its admission would create a serious danger of undue prejudice, confusing the issues, or misleading the jury. (People v. Kipp (1998) 18 Cal.4th 349, 369, 371.) We review the court’s admission of the evidence for an abuse of discretion. (Ibid.)
2. Analysis
The court did not abuse its discretion in ruling that evidence of the 1994 fatal collision could be offered to show Bucci’s knowledge of the dangers of falling asleep while driving. (Evid. Code, § 1101, subd. (b).) The 1994 collision was caused when he fell asleep, and two people died in the resulting collision. According to Bucci’s statements at the scene to both Officer Ervin and EMT Bryant, the 2006 collision was also caused when he fell asleep. If the jury believed Bucci’s statements that he fell asleep at the wheel in November 2006, it could reasonably infer that Bucci had driven even though he was sleepy or fatigued, and his knowledge of the consequences of falling asleep would be germane to the issue of implied malice.
Bucci argues that, by the time of trial (and the motion in limine), he denied that he fell asleep and claimed instead that he had succumbed to the effects of carbon dioxide to which he was exposed at work. The jury, however, was not obligated to accept Bucci’s dry ice theory or reject his prior statements to the authorities that he fell asleep. Accordingly, what Bucci learned from falling asleep at the wheel in 1994 remained relevant and admissible under Evidence Code section 1101, subdivision (b).
Bucci also points out that the prosecutor told the jury in his rebuttal argument that Bucci had not fallen asleep, but deliberately passed in the wrong lane up a hill. Therefore, Bucci urges, evidence of his knowledge from 1994 of the dangers of falling asleep was immaterial. We disagree. In the first place, what the prosecutor asserted in his rebuttal argument cannot render the court’s prior in limine ruling erroneous, since the propriety of that ruling must be evaluated in light of what had been presented to the court at the time of the motion. In any event, although the prosecutor argued that Bucci acted with implied malice because he passed in the wrong lane uphill deliberately, the prosecutor also contended in his closing argument that Bucci acted with implied malice if, indeed, he had fallen asleep. It remained possible for the jury to conclude from the evidence that Bucci had fallen asleep while driving in 2006, and the evidence of the 1994 fatalities was therefore substantially relevant to Bucci’s knowledge at the time of the charged crimes.
We also note that, while the prosecutor ultimately argued to the jury that Bucci deliberately passed cars in the wrong lane while approaching the crest of a hill, the evidence of Bucci’s 1994 collision would have been admissible to establish implied malice given those facts as well: to show Bucci’s knowledge of the danger of driving into oncoming traffic – that is, the likely effects of a collision that could occur if one drives eastbound in a westbound lane deliberately. The experience of a prior head-on collision that left two people dead would have been relevant to whether Bucci knew that driving towards on-coming traffic was likely to kill someone.
We turn next to whether the probative value of the evidence was largely outweighed by the probability the evidence would create undue prejudice, confuse the issues, or mislead the jury. (Kipp, supra, 18 Cal.4th at p. 371.) Among the factors considered in weighing potential prejudice are whether the defendant was convicted of the prior crimes, thus removing any temptation for the jury to punish him for the uncharged offenses, and whether the prior offenses were of a more serious nature than the currently charged crimes, thereby posing a risk of inflaming the jury. (See People v. Ewoldt (1994) 7 Cal.4th 380, 404-405.)
Here, the 1994 incident resulted in Bucci’s conviction for misdemeanor vehicular manslaughter. Contrary to his suggestion (which we discuss post), Bucci was free to introduce evidence of this conviction and punishment to minimize any possibility that the jury might convict him of the charged crimes just to punish him for the 1994 incident. Furthermore, while the 1994 deaths of two people caused by Bucci falling asleep at the wheel are certainly tragic, they are no more inflammatory than the 2006 deaths of two people and injuries to two others caused by Bucci either falling asleep at the wheel again, driving after feeling the disorienting effects of carbon dioxide exposure, or deliberately speeding uphill in the lane of oncoming traffic in order to pass other vehicles. The court did not abuse its discretion in concluding that the evidence of the 1994 incident was admissible. (See Kipp, supra, 18 Cal.4th at p. 372.)
Lastly, any error in the admission of the evidence pertaining to the 1994 fatal accident was harmless, since there is no reasonable probability that Bucci would have obtained a more favorable verdict if the evidence had not been admitted. (People v. Scheer (1998) 68 Cal.App.4th 1009, 1018-1019.) The jury was expressly instructed, in accordance with CALCRIM No. 375, that it could not consider the evidence for any purpose other than deciding whether Bucci knew that falling asleep while driving is dangerous to human life: “The People presented evidence that the defendant fell asleep while driving and collided with another vehicle causing the deaths of two people in 1994.... [¶] If you decide that the defendant committed the act, you may, but are not required to, consider that evidence for the limited purpose of deciding whether or not: [¶] The defendant knew that falling asleep while driving is dangerous to human life. [¶] Do not consider this evidence for any other purpose except for the limited purpose of determining the defendant’s knowledge that falling asleep while driving is dangerous to human life.” (Italics added.) The jury is presumed to have followed this instruction. (See People v. Avila (2006) 38 Cal.4th 491, 574.) Bucci fails to establish reversible error.
B. Sufficiency of the Evidence of Implied Malice
Bucci next contends that the evidence was insufficient to prove implied malice sufficient for the second degree murder convictions on counts one and two. Again, we disagree.
Murder is the unlawful killing of a human being with malice aforethought. (§ 187, subd. (a).) Malice is implied “when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.” (§ 188.)
“Second degree murder based on implied malice is shown when the defendant deliberately performed an act, the natural consequences of which are dangerous to life, knowing that the conduct endangers the life of another, but acting with conscious disregard for that risk of life. [Citation.]” (People v. Autry (1995) 37 Cal.App.4th 351, 358.) In short, implied malice requires “a defendant’s awareness of engaging in conduct that endangers the life of another.” (People v. Knoller (2007) 41 Cal.4th 139, 143.)
In the matter before us, substantial evidence supported a finding of implied malice. Bucci was speeding up a hill going the wrong direction in a no-passing zone on a highway, where he could not see oncoming traffic on the other side of the crest of the hill and could not return to his correct lane because of the semi-trailers he was trying to pass. Certainly a reasonable juror could conclude that the natural consequences of his conduct were dangerous to life and that his conduct endangered the lives of others – such as the occupants of any vehicle approaching from the other side of the crest of the hill. Indeed, at trial Bucci himself admitted that “passing uphill over a solid no-pass line towards the crest of a hill where you can’t see is life-endangering, ” and “passing multiple vehicles at night uphill in excess of a speed limit over the solid line is likely to kill somebody.” Bucci also conceded he knew the danger of such actions as of November 17, 2006.
Furthermore, substantial evidence supported the conclusion that Bucci was conscious and aware that he was putting people’s lives in jeopardy at the time of the collision. There was, for example, evidence that Bucci was not asleep or under the influence of any intoxicating substance when the accident occurred. According to eye-witnesses, he was not driving erratically when he pulled into the westbound lane to pass Johnson, returned to the eastbound lane in front of her, maneuvered back into the westbound lane, accelerated past Fender and one of the semi-trailers in a no-passing zone, and attempted to pass the second semi-trailer until he struck Jackson head-on. Immediately after the collision, Bucci did not complain of confusion, dizziness, or any effect of dry ice or any other substance, but was instead cogent and responsive to questions and logical in his answers. From this evidence the jury could reasonably conclude that Bucci attempted to pass the semi-trailers going uphill deliberately, in conscious disregard for the risk of life.
Even if the jury accepted Bucci’s claim at the scene that he fell asleep, it could reasonably conclude that Bucci acted with implied malice. From his statement to EMT Bryant and Officer Ervin that he dozed off, it could reasonably be inferred that he felt sleepy or fatigued and, notwithstanding his knowledge from the 1994 fatalities of the dangers of falling asleep while driving, continued to drive.
Bucci argues that his driving was not as extreme as the driving in other cases in which a finding of implied malice was upheld. (Ortiz, supra, 109 Cal.App.4th at p. 119 [reckless driving, sudden lane changes, and speeding, coupled with the evidence of prior unsafe driving on numerous other occasions]; People v. Contreras (1994) 26 Cal.App.4th 944, 956-957 [reckless driving coupled with driving record, prior accident, and known inadequacy of brakes].) In comparison to these cases, Bucci describes his driving as follows: “[Bucci] was speeding and crossed over a solid highway dividing line which indicated a no passing zone on the highway. When he crossed into the opposing lane, he was attempting to pass a car and two trucks. As he came near to a car driving in the opposite direction, the trucks were blocking appellant’s access back to his own lane.”
It is debatable whether the circumstances of Bucci’s case are less or more serious than the circumstances in Ortiz and Contreras. We note, for example, that Bucci omits from his account the fact that he was travelling up a hill in the wrong lane where he could not see approaching cars or be seen by approaching drivers – who had no reason to expect him to be speeding toward them in their own lane.
At any rate, the question is not whether Bucci’s acts were as serious as those in some other case, but whether the evidence supported a finding of implied malice in this case. In this regard, we review only for substantial evidence, viewing the evidence in the light most favorable to the People and presuming in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (People v. Johnson (1993) 6 Cal.4th 1, 38.) For the reasons stated ante, we conclude the evidence was sufficient.
C. Failure to Instruct on Accident and Excusable Homicide
Bucci requested that the jury be instructed on the defense of accident pursuant to CALCRIM No. 3404, which provides that a defendant is not guilty of a crime if he or she acted accidentally rather than with the intent required for the crime. The trial court refused to give the instruction, and Bucci contends this was error. He is incorrect.
The Bench Notes to CALCRIM No. 3404 direct that, if murder is charged, CALCRIM No. 510, pertaining to excusable homicide, should be used instead of CALCRIM No. 3404. (Judicial Council of Cal., Crim. Jury Instructions (Fall 2009) Bench Notes to CALCRIM No. 3404.) On this basis, respondent contends that CALCRIM No. 3404 should not be used in murder cases, and Bucci does not dispute this proposition in his reply brief. The trial court did not err in refusing to instruct the jury with CALCRIM No. 3404.
Bucci argues alternatively that the trial court should have instructed sua sponte on excusable homicide under CALCRIM No. 510. However, the court had no sua sponte duty to give the instruction. The accident defense is really a claim that the defendant acted without the mental state required for the offense. (People v. Gonzales (1999) 74 Cal.App.4th 382, 390.) Because it negates an element of the crime, the burden is on the defendant to request a “pinpoint” instruction. (People v. San Nicolas (2004) 34 Cal.4th 614, 669; see People v. Bloyd (1987) 43 Cal.3d 333, 353-354 & fn. 7 [noting that defendant had not requested an instruction on killing by accident and misfortune under CALJIC No. 5.00].) Because Bucci did not request CALCRIM No. 510, the court did not err in not giving it.
Furthermore, the court had no obligation to give CALCRIM No. 510, because there was no substantial evidence that the homicides were excusable. CALCRIM No. 510 provides that a defendant is not guilty of murder or manslaughter if he killed someone as a result of (1) doing a lawful act in a lawful way, while (2) acting with usual and ordinary caution, and (3) without any unlawful intent. Bucci did not kill his victims while doing a lawful act in a lawful way: he was speeding, crossed over a no-passing line, and tried to pass while ascending a hill, which was unlawful under the Vehicle Code according to the testimony of Office Ervin. Bucci fails to demonstrate error.
D. Refusal to Instruct on Mistake of Fact
Bucci next argues that the court erred in refusing his request to instruct the jury on mistake of fact pursuant to CALCRIM No. 3406. This argument fails as well.
CALCRIM No. 3406 advises the jury that a defendant is not guilty of a crime if he did not have the intent or mental state required to commit the crime because he made a mistake of fact. (CALCRIM No. 3406; see § 26, subd. (3).) Instruction with CALCRIM No. 3406 may be required even if the mistake arose as a result of the defendant’s involuntary intoxication. (See People v. Scott (1983) 146 Cal.App.3d 823, 829-833.) However, a trial court is not required to give CALCRIM No. 3406 if it is not supported by substantial evidence. (People v. Pollock (2004) 32 Cal.4th 1153, 1176; People v. Bolden (2002) 29 Cal.4th 515, 558.)
Here, no substantial evidence supported a finding that Bucci collided with Jackson’s Toyota because he made a mistake of fact. Bucci argues in his opening brief that, as a result of his exposure to dry ice, he “mistakenly believed he was driving in a traffic lane where he had the right of way and was surprised to see the headlights of the oncoming vehicle just prior to the collision.” However, Bucci did not testify at trial that when he struck Jackson’s car head-on, he believed he was in the correct lane. Nor did he testify that he mistakenly thought he was complying with the speed limit or passing on a level road in an area where passing was lawful. To the contrary, he told Officer Ervin at the scene that when he woke up shortly before the collision he realized he was driving in the wrong lane, never claiming that he mistakenly thought at any point that he was driving in the correct lane.
When asked at trial if he would have “knowingly done any of those maneuvers [passing the vehicles on Highway 12 in 2006]” if he had “been aware of what was going on, ” Bucci answered “no, ” but the court sustained the prosecutor’s objection and granted the prosecutor’s motion to strike. Bucci does not challenge those rulings here, and Bucci’s answer to the question cannot, of course, provide the substantial evidence required for an instruction on mistake of fact. Bucci did testify at trial that he would not veer into a lane of oncoming traffic on purpose. That is different from testifying affirmatively that he was driving in the lane of oncoming traffic by mistake. On the other hand, given his theory at trial that he drove in the wrong lane due to the effects of dry ice, his testimony that he would not have deliberately driven in the wrong lane, along with the evidence of the potential effect of exposure to dry ice, could arguably support a claim of mistake due to the effects of involuntary intoxication. We need not decide the issue, because any error in failing to give the mistake instruction was harmless, for reasons set forth in the text.
In any event, any error in failing to give CALCRIM No. 3406 was plainly harmless, because there is no reasonable probability that the jury would have reached a more favorable verdict if the instruction had been given. (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson); People v. Russell (2006) 144 Cal.App.4th 1415, 1431 [erroneous failure to instruct on mistake of fact defense is subject to harmless error test set forth in Watson].)
In the first place, even without a specific instruction on mistake of fact, the jury was free to consider the evidence of Bucci’s exposure to dry ice in deciding whether the prosecution had proved implied malice beyond a reasonable doubt. (See People v. Gutierrez (2002) 28 Cal.4th 1083, 1144.) If the jury thought that Bucci really was under the influence of carbon dioxide to the point that he mistakenly believed he was in the correct lane, it would not have found that he acted with the conscious disregard for the risk of life that is required for implied malice.
Furthermore, the jury was instructed on unconsciousness (CALCRIM No. 3425) and involuntary intoxication (CALCRIM No. 3427). In convicting Bucci and rejecting these defenses, the jury must have concluded that he was conscious and not intoxicated to the point of negating implied malice; since the jury did not believe the collision occurred because Bucci was driving under the influence of carbon dioxide from dry ice, there is no reasonable probability the jury would have found that dry ice caused Bucci to drive with a mistaken belief as to the lane he was in. Bucci fails to establish reversible error.
E. Excluding Evidence that Bucci Was Convicted for the 1994 Fatalities
Bucci contends the trial court erred by precluding him from testifying that he was convicted and sentenced for the crime of vehicular manslaughter as a result of the 1994 traffic collision. This evidence would have been important, he urges, because it would have reduced the prejudice of the evidence of the 1994 incident. His argument is meritless.
1. Background
As discussed ante, the prosecutor requested in limine that evidence of the 1994 collision – including Bucci’s conviction – be admitted at trial. Over defense objection, the court permitted the evidence of the 1994 collision. Nothing in the trial court’s order precluded Bucci from explaining to the jury that Bucci had been convicted and sentenced for the 1994 fatalities.
At trial, Bucci was not asked on direct examination, and did not testify, whether he was convicted or punished for the 1994 fatalities. He merely described the circumstances of the 1994 incident and explained that he had fallen asleep at the wheel. During cross-examination, the prosecutor’s questions touched upon the 1994 incident in two respects: Bucci was asked whether he lied at the scene of the 2006 accident by claiming that he fell asleep as he did in 1994, and what he had learned from the 1994 incident. During redirect, defense counsel asked Bucci, in regard to the 1994 collision, only whether he was aware he was going to fall asleep. During recross, the prosecutor asked Bucci whether, in regard to the 2006 collision, he thought back to what he had done in 1994 and decided to come up with an excuse for the 2006 incident as well; defense counsel objected, the trial court agreed the question was argumentative, and the prosecutor asked no further questions.
Finally, during a second redirect examination, defense counsel asked Bucci: “When you explained in 1994 that you had fallen asleep and that resulted in this terrible tragedy, did you get away with that?” Bucci answered, “No.” The prosecutor interjected: “Objection, he’s –, ” and the trial court replied: “Sustained. Let’s not go any farther.”
2. Analysis
Bucci argues that, by sustaining the prosecutor’s objection, the court erroneously prevented defense counsel from presenting evidence that Bucci had been convicted and sentenced for the crime of vehicular manslaughter after the 1994 fatal traffic collision. Not so.
As respondent points out, defense counsel’s question exceeded the scope of the prosecutor’s recross, which had addressed the 1994 collision only in one question, to which defense counsel successfully objected. Accordingly, the court did not abuse its discretion in sustaining the prosecutor’s objection to defense counsel’s question.
In addition, although the court sustained the objection, Bucci’s answer to the question was not stricken. Therefore, Bucci’s testimony that he had not gotten “away with that” was in evidence.
Moreover, defense counsel never made it clear to the court that he wanted to go further and elicit specific evidence of Bucci’s conviction and sentence. (Evid. Code, § 354.) Counsel did not actually ask Bucci whether he had been convicted or sentenced for the 1994 fatalities. Instead, he asked whether Bucci had gotten away with “that, ” leaving it unclear whether counsel was referring to Bucci getting away with his explanation of falling asleep or getting away with the fatalities themselves. Even after the objection to his question was sustained, defense counsel made no effort to advise the court of any desire to elicit evidence of Bucci’s conviction and punishment. Nor was there anything to suggest this was his intention, since he had ample opportunity to elicit that evidence in direct examination and his first redirect examination, but chose not to. Furthermore, there were other ways Bucci’s conviction and sentence could have been offered into evidence – other than through Bucci’s testimony – but Bucci did not pursue them (perhaps out of concern that it would make things worse if the jury knew he only served a jail sentence for the deaths of his two victims in 1994). In any event, based on the record, it cannot be said that the trial court precluded Bucci from presenting evidence of his conviction and punishment for the 1994 fatalities.
After closing arguments, defense counsel did claim that he had tried to elicit testimony from Bucci that he was convicted of a misdemeanor and went to jail for the 1994 fatalities, but the prosecutor’s objection to his question had been sustained. That did nothing to alert the trial court to the issue at the time of the court’s evidentiary ruling, or even before the close of the defense case.
F. Prosecutorial Misconduct
In his rebuttal argument to the jury, the prosecutor honed in on an assertion defense counsel made in closing argument that Bucci had told EMT Bryant “ ‘I must have dozed off’ ” rather than “[I] dozed off.” (Italics added.) The prosecutor argued: “He’s trying to escalate this, to make it look like, well, [‘]I think I must have fallen asleep. I really don’t know. That’s my best explanation[’] and try and make it consistent with his exposure defense. That’s not what [Bucci] said. He didn’t say, [‘]I was confused. I don’t know.[’] He said, ‘I dozed off.’ I submit to you he got away with it before, when he dozed off, and he used the same excuse again.” (Italics added.)
Defense counsel did not object, and the prosecutor finished his rebuttal argument. Bucci now contends the prosecutor perpetrated prosecutorial misconduct by saying “he got away with it before.”
1. Waiver
A defendant may generally not complain on appeal of prosecutorial misconduct unless he timely objected and requested that the jury be admonished to disregard the impropriety. (People v. Berryman (1993) 6 Cal.4th 1048, 1072, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.)
Here, Bucci did not object to the prosecutor’s statement during closing argument. Instead, the day after closing arguments were concluded, defense counsel stated (outside the presence of the jury): “Yesterday, in the closing, [the prosecutor] referred to... the idea that [Bucci] fell asleep in 1994 is determinative that he got away with it, ” and “the representation that he got away with it is completely false, because he was, of course, convicted of a crime and did jail time in 1994.” Counsel concluded: “So I just – I don’t know what Your Honor would like to do about that, but I did think it was appropriate to make an objection on the record, because that certainly mischaracterizes what happened in 1994 as a result.”
Bucci does not contend this objection was timely. Instead, he argues that he should be excused from the requirement of a timely objection because it would have been futile. (People v. Hill, supra, 17 Cal.4th at p. 820; People v. Hamilton (1989) 48 Cal.3d 1142, 1184, fn. 27.) In this case, he insists, it would have been futile to object to the prosecutor’s statement during closing argument, because the court did not take action when defense counsel raised the issue the next day.
We are not persuaded. The fact that a trial court denies relief in response to an untimely objection does not in itself mean that a timely objection would have been futile. Furthermore, at the point in this case when defense counsel finally mentioned the matter, he appears to have been merely making a record of his concern, and never actually asked the trial court to do anything – not even to admonish the jury to disregard the prosecutor’s comment. So the court responded: “All right. I’m just going to leave it there. I’m not – I have no further input at this time.” Nothing in the record suggests that Bucci should be excused from the requirement of making a timely objection to the prosecutor’s purported misconduct.
Nonetheless, we need not rely on the doctrine of waiver or forfeiture to resolve the issue of the prosecutor’s comment, since Bucci’s argument also fails on the merits.
2. Merits
Bucci contends the prosecutor committed misconduct by arguing that Bucci got away with killing two people in 1994, even though he knew that Bucci was convicted and sentenced. Bucci mischaracterizes the prosecutor’s statement. The prosecutor did not tell the jury in closing argument that Bucci got away with killing two people in 1994. Nor did he ever state that Bucci had not been convicted or punished for the 1994 fatalities, let alone urge the jury to punish Bucci for the 2006 collision because he got away with killing people in 1994.
Rather, the prosecutor stated: “I submit to you he got away with it before, when he dozed off, and he used the same excuse again.” In context, a reasonable interpretation of the prosecutor’s point is that Bucci’s claim of falling asleep in the 2006 incident was bogus and should not be believed. In other words, the prosecutor’s argument was conceivably to the effect that: Bucci got away with claiming he dozed off in 1994, so he claimed it again in 2006, but in this case it was not true.
In any event – even if a reasonable juror could interpret the prosecutor’s argument in the way Bucci now casts it – Bucci has not established reversible error. “Prosecutorial misconduct is cause for reversal only when it is ‘reasonably probable that a result more favorable to the defendant would have occurred had the district attorney refrained from the comment attacked by the defendant.’ [Citation.]” (People v. Milner (1988) 45 Cal.3d 227, 245.)
Here, there is no reasonable probability that Bucci would have obtained a more favorable verdict if the prosecutor had not made the subject remark. The prosecutor’s statement was not an obvious plea to convict or punish Bucci because of the 1994 fatalities, it constituted a tiny fraction of the prosecutor’s overall closing and rebuttal arguments, and it was apparently not so inflammatory or noteworthy as to cause any contemporaneous expression of concern by either defense counsel or the trial court. Furthermore, the trial court instructed the jury that it could not use the evidence of the 1994 fatalities for any purpose other than to determine “the defendant’s knowledge that falling asleep while driving is dangerous to human life.” Given this instruction pursuant to CALCRIM No. 375, as well as the presumption that the jury followed the instruction, the context and circumstances of the prosecutor’s statement, and the strong evidence of implied malice discussed ante, Bucci fails to show that the prosecutor’s statement compels reversal.
G. Applicability of Section 12022.7 Enhancement to Murder Counts
The jury found Bucci guilty of murder on count one (alleged as to victim “I.C., ” Immanuel) and count two (alleged as to victim “D.H., ” Demari). The jury further found that Bucci, during the commission of those offenses, inflicted great bodily injury on “R.R.J.” (victim Jackson) and “J.C.” (victim Jordan), for purposes of enhancements under subdivisions (a) and (b) of section 12022.7. Bucci argues that the enhancements must be stricken because subdivision (g) of section 12022.7 provides: “This section shall not apply to murder or manslaughter....”
We disagree. In this case, the great bodily injury enhancements were not based on the injury caused to the murder victims (Immanuel and Demari), but on the great bodily injury inflicted on Jackson and Jordan, who were injured but not killed. Both the information and the verdict form set forth expressly and clearly that Jackson and Jordan were the subjects of the great bodily injury enhancements, and the prosecutor told the jury in closing argument that the great bodily injury allegations pertained to injured persons other than the two persons who were killed, identifying them specifically by name.
Under these circumstances, imposition of the enhancements does not run afoul of the statutory purpose of section 12022.7. Bucci’s murder sentence is not being enhanced because he caused great bodily injury to the subjects of the murder counts, but to others. Indeed, the gravity of the murders of Immanuel and Demari was increased by the great bodily injury also inflicted upon Jackson and Jordan, and Bucci’s punishment should be increased accordingly. After all, Bucci’s sentence would have been enhanced for the harm to Jackson and Jordan if Bucci had merely injured Immanuel and Demari; it is illogical to think his sentence should not be so enhanced just because Bucci actually killed Immanuel and Demari rather than merely injuring them.
Instructive in this regard is People v. Verlinde (2002) 100 Cal.App.4th 1146 (Verlinde). There, the defendant drove while intoxicated and struck another vehicle, resulting in injury to three of her passengers, one of whom died. The jury convicted her of numerous crimes including gross vehicular manslaughter while intoxicated, and found true great bodily injury enhancements in connection with all counts under section 12022.7. (Verlinde, at p. 1154.) The court sentenced her to prison and imposed two consecutive terms for the section 12022.7 enhancements, staying sentence on the other section 12022.7 allegation pursuant to section 654. (Verlinde, at p. 1154.)
On appeal, the defendant argued inter alia what Bucci argues here: that imposition of the great bodily injury enhancements was unlawful because section 12022.7, subdivision (g) provides that such enhancements do not apply to murder or manslaughter. (Verlinde, supra, 100 Cal.App.4th at p. 1168.) The court rejected the argument as meritless. (Ibid.) The court explained: “Section 12022.7 does not define a separate offense, but rather is a legislative attempt to punish more severely those crimes that result in great bodily injury ‘on any person.’ [Citations.] The language of section 12022.7, subdivision (g) does not limit application of the statute to this vehicular manslaughter case where, in addition to the homicide victim, two other victims suffered great bodily injury. The statutory exemption for murder and manslaughter is intended to bar imposition of an enhancement for the injuries inflicted on the homicide victim, who obviously has suffered great bodily injury. Thus, the statutory exemption prevents prohibited dual punishment for the same crime. (See § 654.) ‘When a defendant engages in violent conduct that injures several persons, he may be separately punished for injuring each of those persons, notwithstanding section 654. [Citation.]’ [Citation.] Verlinde’s argument is inconsistent with a fundamental objective of our penal justice system, namely ‘that one’s culpability and punishment should be commensurate with the gravity of both the criminal act undertaken and the resulting injuries.’ [Citation.] Furthermore, a fundamental principle of statutory construction is that the language of a statute should not be given a literal meaning if doing so would result in absurd consequences which the Legislature did not intend. [Citation.]” (Id. at pp. 1168-1169, italics added.)
As in Verlinde, the section 12022.7 enhancements in this case were imposed for serious bodily injury inflicted on two victims who had been seriously injured, but had not died and were not the subject of the murder counts. The court did not err in imposing the enhancements.
Verlinde did not mention an earlier case on which Bucci now relies. In People v. Beltran (2000) 82 Cal.App.4th 693 (Beltran), the defendant fled from police in his vehicle and collided with another vehicle, killing the driver and injuring a passenger. (Id. at pp. 694-695.) The jury convicted him of felony evasion of a pursuing police officer (count one) and vehicular manslaughter (count three); it also found true two great bodily injury allegations under section 12022.7, subdivision (c), alleged as to count one. (Beltran, at p. 695.) The defendant was sentenced to a prison term plus 10 years for the two section 12022.7 enhancements. (Beltran, at p. 695.)
The court reversed the imposition of the section 12022.7 great bodily injury enhancements. (Beltran, supra, 82 Cal.App.4th at p. 698.) The court first stated that, under section 12022.7, subdivision (f) [the provision then providing that section 12022.7 “shall not apply to murder or manslaughter...”], the enhancements could not be based on the defendant’s count 3 conviction for vehicular manslaughter. Without further analysis, the court asserted that “[t]he only basis for the enhancements is the count 1 conviction of evading a peace officer.” (Beltran, at p. 696.) The court then concluded that the enhancements could not be imposed even on count 1: noting that felony evasion of a peace officer required proof of “serious bodily injury” within the meaning of section 243, and “serious bodily injury” in section 243 has substantially the same meaning as “great bodily injury” in section 12022.7, the defendant’s sentence could not be enhanced under section 12022.7 because infliction of serious or great bodily injury was an element of the felony crime of evasion of a peace officer. (Beltran, at pp. 696-697.)
While Bucci insists that Beltran and Verlinde represent a split of authority, we disagree. The opinion in Beltran indicates that the enhancements were alleged only as to “count 1” (evasion of a peace officer). (Beltran, supra, 82 Cal.App.4th at p. 695.) This suggests that the “two” section 12022.7, subdivision (c) enhancements imposed by the court were based on findings that both the driver and the passenger of the victim vehicle suffered great bodily injury. (See Beltran, at p. 695.) It would also mean the court’s discussion of the applicability of the enhancement to a vehicular manslaughter conviction was dictum, since the enhancement was not even alleged as to the vehicular manslaughter count. On this basis, Beltran does not constitute authority for the proposition that section 12022.7 enhancements are inapplicable to a manslaughter (or murder) count, regardless of whether one of the injured persons had died.
In any event, given the lack of any substantive analysis of the point in Beltran, we are persuaded by the reasoning in Verlinde that criminal punishment should be commensurate with the number of victims on whom harm has been inflicted. (See also People v. Ausbie (2004) 123 Cal.App.4th 855, 864-865 [§ 12022.7 enhancements may be imposed for each victim of a single offense when there are multiple victims who suffered great bodily injury].) Bucci has failed to establish reversible error.
III. DISPOSITION
The judgment is affirmed.
We concur. SIMONS, Acting P. J., BRUINIERS, J.