Opinion
E042588
7-30-2008
THE PEOPLE, Plaintiff and Respondent, v. SANDY RENE GREEN, Defendant and Appellant.
Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, James D. Dutton, Supervising Deputy Attorney General, and Alana Cohen Butler, Deputy Attorney General, for Plaintiff and Respondent.
Not to be Published
Defendant Sandy Green was charged with vehicular manslaughter without gross negligence, a violation of former Penal Code section 192, subdivision (c)(3). It was further alleged that defendant was "driving a vehicle in violation of Vehicle Code Sections 23152 and 23153 and in the commission of an unlawful act, not amounting to a felony, to wit, a violation of Vehicle Code Section 22101(d) and in the commission of a lawful act which might produce death, in an unlawful manner."
Former Penal Code section 192, subdivision (c)(3), was deleted by the 2006 amendment to Penal Code section 192, effective January 1, 2007. Subdivision (c)(3) defined vehicular manslaughter to include: "`(3) Driving a vehicle in violation of, or and in the commission of an unlawful act, not amounting to felony, but without gross negligence; or driving a vehicle in violation of, or and in the commission of a lawful act which might produce death, in an unlawful manner, but without gross negligence." (Stats. 2006, ch. 91, § 2.)
The jury found defendant not guilty of vehicular manslaughter with ordinary negligence while intoxicated, but instead found her guilty of the lesser included offenses of driving under the influence causing injury (Veh. Code, § 23153, subd. (a)) and driving with a blood alcohol level of .08 percent or higher, causing injury (§ 23153, subdivision (b)).
All further statutory references will be to the Vehicle Code unless otherwise indicated.
The trial court sentenced defendant to two years in prison for violating section 23153, subdivision (a), and struck the jurys finding under section 23153, subdivision (b).
Defendant appeals, contending that the trial court erred: (1) in excluding evidence that the deceased victim was speeding and under the influence of marijuana at the time of the crash, (2) in giving CALCRIM No. 220, the "reasonable doubt" instruction, and (3) in refusing to grant probation.
FACTS
Defendant testified that on November 22, 2005, she was working as a hairdresser at a salon located at the intersection of Haven Avenue and Foothill Boulevard (Foothill). She got off work at approximately 7:30 p.m. and went to a nearby bar. She testified that she had one shot of tequila at the bar and then went shopping at nearby stores. She was planning to go to Phelan to meet her boyfriend after he got off work later that evening.
Defendant testified that she intended to take Foothill east to the Interstate 15 Freeway (I-15) and then go northbound to State Route 138 to Phelan. At approximately 11:00 p.m., she travelled east on Foothill, proceeded under the I-15, and stopped at a traffic light. She was under the impression that she was at a location where she could turn left to access the northbound ramp for the I-15. When the signal turned green, she turned left and struck a motorcyclist, killing him.
The accident occurred in Rancho Cucamonga.
Three witnesses testified to the circumstances of the accident. Two of the witnesses noticed a strong smell of alcohol on defendant.
Deputy Shifflett, Deputy Powers, and Detective ODonnell, of the San Bernardino County Sheriffs Department, all testified that the proper entrance to the northbound I-15 from eastbound Foothill was actually from the right-hand lane of eastbound Foothill. The right-hand lane of eastbound Foothill circles around and then empties onto the northbound I-15. The area where defendant attempted to turn left was not designated as a left-turn lane, and defendant would have had to go a short distance into oncoming westbound traffic to reach the northbound ramp for westbound traffic. While it was physically possible to do so, Detective ODonnell testified that the maneuver would violate section 21651, subdivision (b).
A diagram of the intersection was prepared by Deputy Powers, a member of the Major Accident Investigation Team. The diagram was designated Peoples Exhibit No. 3 at trial. See appendix A, post, page 16.
Detective ODonnell testified that the distance from the limit line where defendant stopped for the signal to the northbound onramp for westbound traffic was approximately 120 feet.
Detective ODonnell thus concluded that defendants actions caused the victims death. His opinion was that "the defendant was driving eastbound on Foothill, made a left turn between two dividers attempting to access the northbound I-15 on ramp in a location that was not meant for such a turn, and struck the victims motorcycle that was proceeding westbound on Foothill causing his death."
We note that defendants accident reconstruction specialist stopped at the signal where defendant stopped but did not make a left turn because "its dangerous" and such a turn is "not supposed to be made."
Detective ODonnell further opined that "due to her intoxication she either did not recognize those signs, did not see them or did not remember the intersection there, which contributed to her judgment to make that left turn in a location not meant for such a turn to be made."
Deputy Shifflett examined defendant after the accident and concluded that she was under the influence of alcohol. At trial, it was stipulated that her blood alcohol level was 0.19 percent at 11:30 p.m, 0.18 percent at 11:33 p.m., 0.16 percent at 12:25 a.m., 0.15 percent at 12:27 a.m., and 0.17 percent at 12:32 a.m. The last test was a blood test.
As noted above, the jury acquitted defendant on the more serious charge and found her guilty of the lesser included offenses of driving under the influence, causing injury (§ 23153, subd. (a)), and driving with a blood alcohol level of 0.08 percent or higher, causing injury (§ 23153, subd. (b)).
DISCUSSION
A. The trial court did not err in refusing to admit evidence of the victims speed and evidence that the victim was under the influence of marijuana at the time of the accident.
Prior to trial, the prosecution moved to exclude evidence that the victim was under the influence of marijuana at the time of the accident. The prosecutor argued that contributory negligence was not a defense to criminal charges, citing People v. Pike (1988) 197 Cal.App.3d 732.
The trial court tentatively agreed, citing People v. Wattier (1996) 51 Cal.App.4th 948, and People v. Autry (1995) 37 Cal.App.4th 351 (Autry). In Autry, the court said: "In criminal prosecutions, the contributing negligence of the victim or a third party does not relieve the criminal actor of liability, unless the victims or third partys conduct was the sole or superseding cause of the death. [Citations.]" (Autry, at p. 360.)
The trial courts ruling was tentatively expanded to include the victims driving before the collision, specifically, the question of whether the victim was speeding.
An Evidence Code section 402 hearing was then held. Defendant presented the testimony of Melvin Friedlander, a forensic consultant. Friedlander investigated the accident and concluded that the victim was the primary cause of the accident. On examination by the court, he stated that the speed of the motorcycle was the cause of the accident, although he conceded that defendants car was also a factor.
In argument, defendant relied on People v. Harris (1975) 52 Cal.App.3d 419. However, the trial court ruled that the negligence of the victim was not relevant because defendant had not shown that it was the sole cause of the accident. The trial court therefore ruled in accordance with its tentative ruling and excluded evidence of the victims speed and his alleged marijuana intoxication.
Defendant subsequently raised the issue again and asked for clarification of the ruling. After further discussion, the trial court reiterated its earlier ruling.
After some witness testimony, defendant again argued that the speed of the motorcycle was a substantial factor in causing the victims death under CALCRIM No. 5.91. The trial court reiterated that the only substantial factor the jury had to consider was whether defendants conduct was a substantial factor in causing the victims death. The court reaffirmed its earlier ruling.
Subsequently, Deputy ODonnell testified that the collision was a low-speed collision because the front forks of the motorcycle were not bent. As a result of this testimony, the trial court agreed to allow testimony concerning the victims speed for the purpose of impeaching the officer, not to show causation.
On appeal, defendant argues that the trial court erred because the experts proposed testimony was relevant on the issue of causation. Defendant relies on People v. Marlin (2004) 124 Cal.App.4th 559 (Marlin). In Marlin, the court stated, and defendant concedes, that "a crime victims contributory negligence is not a defense. [Citations.]" (Id. at p. 569.) But defendant argues, as did the defendant in Marlin, that the proposed testimony went to "the fundamental question of causation, that is, whether there was a causal connection between defendants acts and the victims injuries." (Ibid.) In Marlin, the court responded: "While [defendant] is correct that in certain situations the acts or failures of a victim or a third party may negate causation, this is not one of them." (Ibid.) The court explained: "For crimes committed under circumstances such as this, the defendant may only be found guilty if it can be said there is a causal connection between his conduct and the harm suffered by the victim. To establish this causal connection and for criminal liability to attach, the evidence must show that the defendants conduct was both the actual and the legal, or proximate, cause of the death or injuries. Once that has been shown, the actions or failings of the victims or third parties are of no consequence. [Citation.]" (Ibid.)
Defendant argues that this is a case in which the facts or failures of the victim negate causation. If the evidence of speed and drug usage had been introduced, he contends that "the jury would have determined the victims actions were so remote from [defendants] conduct as to break the chain of causation." If so, defendants act of turning left at the wrong location was not a substantial factor in causing the victims death.
We disagree. As the trial court pointed out, defendants own traffic accident reconstruction expert acknowledged that the accident would not have happened if defendant had not turned into the westbound lanes of Foothill Boulevard. The situation is the same as in Marlin. In that case, a drunk defendant veered into opposing traffic lanes and collided with a car occupied by a family, killing an unborn baby. (Marlin, supra, 124 Cal.App.4th at p. 563.) Defendant sought to withdraw his guilty plea alleging, among other things, that his counsel was constitutionally ineffective for failing to investigate and present a defense of contributory negligence. (Id. at p. 567.) The court rejected the argument because it was based on the flawed premise that defendant was not guilty of a crime because the victims might have avoided the accident. (Id. at p. 569.)
The courts explanation is equally applicable here: "The question then is whether defendants actions were both the actual cause and a legal or proximate cause of the injuries (and the death) that were the result of those actions. We hold they were. Even assuming that [the driver of the victims car] was speeding and inattentive and the brakes on her automobile experienced brake fade, it is apparent from this record that the accident would not have occurred but for defendants losing control of his car due to his intoxication and thereafter driving into [the victims] lane of traffic. Had he not done so, there would have been no collision. And, there can be no doubt those same actions were a substantial factor that contributed to the accident. This is not a case where defendants acts were so remote that [the victims] actions or failures, had they been established, would have been deemed the sole proximate cause of the collision. [Citation.]" (Marlin, supra, 124 Cal.App.4th at p. 570.)
Certainly, the fact that the intoxicated defendant was in the westbound traffic lanes, at a place not intended for a left turn, was at least a factor in the accident. Accordingly, even if the victims speed or physical condition contributed to the accident, the chain of causation was not broken. As the jury was instructed: "There may be more than one cause of death. An act causes death only if it is a substantial factor in causing the death. A substantial factor is more than a trivial or remote factor. However, it does not need to be the only factor that causes the death."
Thus, under the facts here, and the cases cited above, defendants drunken conduct was at least a substantial causative factor in the death of the victim. Defendants conduct need not be the sole causative factor, and the contributory negligence of the victim, if any, was therefore irrelevant. The trial court properly excluded the evidence of the victims speed and alleged marijuana usage.
B. CALCRIM No. 220.
The trial court gave the relatively new reasonable doubt instruction, CALCRIM No. 220. Defendant contends the instruction is defective because it precludes the jurors from finding the existence of a reasonable doubt from a lack of evidence. Specifically, defendant points out that the jury was told: "In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial." Defendant argues that, by limiting the jurors consideration to evidence received during the trial, the jurors might be misled into believing that they are prohibited from considering the absence of evidence as raising a reasonable doubt.
As the People point out, defendants argument has been rejected in several recent cases. In People v. Campos (2007) 156 Cal.App.4th 1228, the court said: "Reasonable doubt may arise from the lack of evidence at trial as well as from the evidence presented. [Citation.] The plain language of CALCRIM No. 220 does not instruct otherwise. The only reasonable understanding of the language, `[u]nless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty, is that a lack of evidence could lead to reasonable doubt. Contrary to defendants claim, CALCRIM No. 220 did not tell the jury that reasonable doubt must arise from the evidence. The jury was likely `to understand by this instruction the almost self-evident principle that the determination of defendants culpability beyond a reasonable doubt . . . must be based on a review of the evidence presented. [Citations.]" (Id. at p. 1238; see also People v. Westbrooks (2007) 151 Cal.App.4th 1500, 1510.)
In People v. Guerro (2007) 155 Cal.App.4th 1264, the court also rejected defendants argument: "Contrary to defendants suggestion, CALCRIM No. 220 instructs the jury to acquit in the absence of evidence. In addressing defendants claim, we consider whether a `reasonable juror would apply the instruction in the manner suggested by defendant. [Citation.] The jury is instructed to consider only the evidence, and to acquit unless the evidence proves defendants guilt beyond a reasonable doubt. If the government presents no evidence, then proof beyond a reasonable doubt is lacking, and a reasonable juror applying this instruction would acquit the defendant. [¶] Due process requires nothing more. CALCRIM No. 220 does not violate due process." (Id. at pp. 1268-1269; see also People v. Flores (2007) 153 Cal.App.4th 1088, 1093.)
We agree with the unanimous view of these cases and reject defendants argument that the trial court erred in instructing the jury with CALCRIM No. 220.
C. Refusal to grant probation.
Defendant finally contends that the trial court abused its sentencing discretion in refusing to grant probation and in sentencing her to two years in prison for violating section 23153, subdivision (a). She points out that the probation report recommended a two-year prison term, suspended, with supervised probation for three years on the condition that she serve one year in the county jail.
At sentencing the trial court heard emotional pleas from the victims family and from defendants supporters. It heard the arguments of counsel, it received and reviewed the probation report, defendants sentencing memorandum, and numerous letters from both sides.
The trial court rejected the probation reports recommendation. It noted that defendant had consistently and adamantly stated that she only had one drink that night, but her testimony was contradicted by the breath and blood test results. The court stated its reasons for disagreeing with the probation officers recommendation: "[E]ven though you sit there today and you look at the victims family and you say you feel bad for them and you have felt bad for them, you havent come to grips or recognition that it was your conduct that night that actually caused this accident. If you had not consumed the amount of alcohol that took you to a .19 you wouldnt have—it would have been absolutely perfectly crystal clear to you that there was no left turn at that particular opening. [¶] Your own expert when asked by [the prosecutor] on the witness stand, did you make a turn there and check it out and do what she did? He said, no. And [the prosecutor] asked why? He said two things. He said, its illegal and its dangerous. And yet, you were so intoxicated you could not make either of those recognitions." The trial court also noted that an upper-term sentence was not an option because of the Cunningham case. It therefore sentenced defendant to the midterm of two years in state prison.
Cunningham v. California 549 U.S. 270 .
Defendant argues that the refusal to grant probation was an abuse of discretion. She cites People v. Kronemyer (1987) 189 Cal.App.3d 314: "The trial court is vested with wide discretion to grant or deny probation, except where otherwise subject to statutory limitation, and a decision denying probation will not be disturbed on appeal except upon a clear showing the trial court abused its discretion in an arbitrary or capricious manner. [Citations.] `A heavy burden is placed on a defendant in attempting to show an abuse of discretion in denying a request for probation. [Citation.] `However, "[the] courts have never ascribed to judicial discretion a potential without restraint." [Citation.] Discretion is compatible only with decisions "controlled by sound principles of law, . . . free from partiality, not swayed by sympathy or warped by prejudice . . . ." [Citation.] [Citation.] In other words, `[this] discretion, however, is neither arbitrary nor capricious, but is an impartial discretion, guided and controlled by fixed legal principles, to be exercised in conformity with the spirit of the law, and in a manner to subserve and not to impede or defeat the ends of substantial justice. [Citation.]" (Id. at pp. 364-365.) As the People point out, a decision to grant probation is based on a finding by the trial court that "there are circumstances in mitigation of the punishment prescribed by law or that the ends of justice would be served by granting probation to the person . . . ." (Pen. Code, § 1203, subd. (b)(3).)
There was ample basis here for a denial of probation. The trial court apparently considered that defendant was not remorseful, that defendant had lied about the amount of alcohol she had consumed, and that a person had been killed as a result of defendants actions.
The probation officer noted, "The defendant takes little responsibility for her culpability in this matter. . . . The defendant is not even being honest with herself let alone the court. . . . This officer also observed the defendant did not seem to be remorseful for her actions."
In the light of these statements, it is not surprising that the probation officers recommendation for a suspended sentence was rejected by the trial court. The only reasons given by the officer for his recommendation were defendants minimal prior record "and the fact that this officer would like to see the defendant receive help for her alcohol problem . . . ."
Neither the trial court nor the probation officer emphasized that defendant was on probation at the time of the offense, and this fact alone could justify a denial of probation. In any event, defendant has failed to show that the careful consideration the trial court gave to its decision resulted in an abuse of its sentencing discretion. The trial courts decision was clearly not arbitrary nor an abuse of discretion, and defendant has not carried the heavy burden of showing otherwise.
DISPOSITION
The judgment is affirmed.
We concur:
RAMIREZ, P. J.
HOLLENHORST, J.
APPENDIX A
NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE