Opinion
A165987
04-24-2024
THE PEOPLE, Plaintiff and Respondent, v. TOBY ANTHONY ROSA, Defendant and Appellant.
NOT TO BE PUBLISHED
(Sonoma County Super. Ct. No. SCR-725871-1)
MILLER, J.
The first paragraph of his brief on appeal describes defendant Toby Anthony Rosa as a longtime opioid addict who "maintained a cadre of lifetime friends from childhood who shared his [opioid addiction] and affection for controlled substances; he welcomed them into the house he shared with . . . other addicts as a place they could use their drugs of choice without judgment." This appeal arises because in the space of a few weeks in March 2018, two of Rosa's friends died after taking illegal drugs at his house; in each case, Rosa refused to call 911 after he realized his friend had overdosed, and he instructed others not to call for professional medical assistance, stating he did not want an ambulance coming to his house. Following an investigation, Rosa was charged with two felony counts of involuntary manslaughter and other drug-related crimes. The jury found Rosa guilty as charged.
On appeal, Rosa contends the trial court made multiple errors: first, that although the jury learned that prosecution witness Daniel Hilley had been arrested in another state and was in custody there for three pending felony cases, the defense was not allowed to elicit from Hilley in front of the jury the nature of the charges, which involved possession of fentanyl and heroin for sale; second, that the jury should have been instructed to consider whether Hilley was an accomplice to the manslaughter offenses; third, that the instructions misstated the law on the legal duty to render aid; and fourth, that there was no evidence of causation as to one of the involuntary manslaughter convictions.
In his opening appellate brief, Rosa also claims a sentencing error, which he appears to have abandoned. Rosa asserts that the imposition of a sentencing enhancement for great bodily injury as to count 3 (furnishing and administering methamphetamine) constitutes an impermissible dual use of facts because the same conduct is the basis for count 2 (involuntary manslaughter of the second victim). The Attorney General responds that the sentence for count 2 was stayed pursuant to Penal Code section 654. Thus, Rosa's claim rests on an incorrect premise as it is not the case that one act was punished twice. Rosa does not address the sentencing error claim in his reply brief, and we deem the claim abandoned.
We find no error and we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The Sonoma County District Attorney charged Rosa in a six-count information with the following crimes: involuntary manslaughter of William Drake Coffey (Pen. Code, § 192, subd. (b); count 1); involuntary manslaughter of Jayson Christopher Taylor (ibid.; count 2); furnishing and administering a controlled substance, to wit, methamphetamine (Health &Saf. Code, § 11379, subd. (a); count 3) with an enhancement allegation of personal infliction of great bodily injury upon Taylor (§ 12022.7, subd. (a)); maintaining a place for selling or using controlled substances, to wit, dimethyltryptamine (DMT), heroin, methamphetamine, and Xanax (Health &Saf. Code, § 11366; count 4); and two counts of possessing a controlled substance after previously being convicted of an offense requiring registration pursuant to section 290 (Health &Saf. Code, § 11377, subd. (a); counts 5 [methamphetamine] and 6 [DMT]). It was further alleged that Rosa had a prior felony conviction that qualified as a "strike" under the Three Strikes law (§ 667, subds. (d)-(e)) and as a serious felony under section 667, subdivision (a)(1), and that there were several sentencing factors in aggravation relating to the crimes and to Rosa.
Undesignated statutory references are to the Penal Code.
The prior felony conviction-which also was the conviction that required Rosa to register as a sex offender (see counts 5 and 6)-was for rape accomplished by force or fear. (Former § 262, subd., (a)(1), as amended by Stats. 1996, ch. 1077, § 15.)
For the involuntary manslaughter charges, the prosecution proceeded on two alternative theories of criminal negligence at trial. The first theory was based on the misdemeanor-manslaughter rule, relying on allegations that Rosa aided and abetted the victims in committing the misdemeanor of using or being under the influence of a controlled substance (Health &Saf. Code, § 11550) and that he did so in a dangerous manner. (See § 192, subd. (b); People v. Cox (2000) 23 Cal.4th 665, 672-674 [misdemeanormanslaughter requires an unlawful act that is "dangerous under the circumstances of its commission"].) The second theory was that Rosa failed to perform a legal duty to render aid, where the legal duty was imposed because Rosa allowed his home to be a place for the victims to use dangerous drugs and then failed to summon professional assistance and instructed others not to summon professional assistance. (See People v. Oliver (1989) 210 Cal.App.3d 138, 147, 149 (Oliver) [an affirmative duty to act can be imposed "where some act or omission on the part of the defendant either created or increased the risk of injury to the [victim], or created a dependency relationship inducing reliance or preventing assistance from others," and breach of this duty may be criminal negligence].) Trial Evidence
Background
Michael Wood testified he and Toby Rosa were part of "a pretty tight-knit group of friends" that included William Coffey and Jayson Taylor, the two victims in this case. Wood lived at Rosa's house in Santa Rosa for about six weeks in 2017 or 2018. During that time, Coffey came over at least a couple of times and used methamphetamine, and Wood saw Rosa give Coffey drugs. Taylor used heroin and methamphetamine at Rosa's house, too. Wood, who also used methamphetamine at Rosa's house, testified a man named Dave, who "lived in the backyard," supplied the methamphetamine, and Rosa "had to get his cut" in its distribution.
According to Wood, Taylor "always struggled with addiction, so he'd get clean for a while and we wouldn't see him around too much." Coffey also struggled with addiction. Coffey's wife of 18 years knew that Coffey had a drug problem in 2007, and she suspected he was using drugs again in the months before his death. Rosa-who testified Coffey was "meticulous about hiding [his drug use] from his wife"-observed that Coffey's drug use in the year before he died "increased and decreased in waves" and Coffey was "dependen[t] on opiates and methamphetamine."
Daniel Hilley met Rosa in 2017. When Hilley became homeless, Rosa offered to rent him a room, and Hilley and his girlfriend began living with Rosa in mid-February 2018. Christine Macintosh also lived at Rosa's house and a man named Dave stayed in a guesthouse in the backyard. Hilley observed "a lot of drug use" in Rosa's house. Rosa's friends "came in and out" of the house and shared and used drugs. Rosa shared heroin, methadone, and DMT with his friends and with Hilley. On one occasion, Hilley overdosed, and Rosa "saved [his] life" by administering Narcan. Hilley also saw Rosa making DMT in the house.
A forensic pathologist testified that naloxone, known as Narcan, is an opioid antagonist that is administered when a person is believed to be overdosing on an opioid such as fentanyl, heroin, or morphine.
Coffey Dies of an Overdose
On Thursday, March 8, 2018, Coffey texted Rosa, "I'm feeling pretty crappy. I would like to hang out." Rosa immediately responded, "All right!!! Party party party."
On Friday, March 9, Coffey arrived at Rosa's house. Hilley testified Coffey came in the house around 6:00 or 6:30 p.m. Hilley talked with Coffey and Rosa for about 10 minutes. Then Coffey and Rosa went into Rosa's bedroom. A tree trimmer knocked on the front door, and Rosa answered. The tree trimmer, Rosa, and Hilley went outside and talked about the work Rosa wanted done on a palm tree in the front yard. They spoke for 10 to 25 minutes, Rosa got an estimate for the job, and Rosa and Hilley went back in the house. Hilley and Rosa sat down in the living room, and then Rosa said," 'Oh, shit, I forgot about [Coffey].'" Hilley went to his room, and from there he heard Rosa yell for help. Hilley found Rosa in his bedroom on the floor with Coffey; Rosa was yelling for Narcan. Macintosh brought a Narcan nasal spray, and Rosa administered it. "It didn't work," and Rosa gave Coffey another dose of Narcan and started CPR.
Hilley told Rosa he wanted to call an ambulance, and Rosa responded," 'No fucking way. Do not call an ambulance. I don't want that in my house.'" Hilley took over performing CPR for a few minutes. He mentioned calling an ambulance again, and Rosa said," 'There's no ambulance coming to this house. Do not call an ambulance.'" According to Hilley, Rosa "said he didn't want the police and . . . all that coming in and making a big deal out of it, get in trouble for something." Hilley testified that he did not call 911 because it "wasn't [his] house" and he "was scared."
Hilley elaborated, "I didn't know [Rosa] that well. He was pretty adamant about not calling an ambulance.... [I]it worried me that, if he didn't want to help him, then it could cause some trouble for me and my girlfriend ...." "I didn't want to be out in the street."
Coffey was given a third dose of Narcan, which had no effect. Rosa and Hilley called and left messages for Joshua Digman. Hilley did not have a car, and he asked for the keys to Coffey's truck, so they could drive Coffey to the hospital. Digman arrived and helped Hilley and his girlfriend move Coffey into the back seat of Coffey's truck.
Digman drove to the hospital with Coffey and Rosa. Rosa returned about 10 minutes later. Rosa told Hilley he had Digman drop him off at the side of the road and he walked back home.
Coffey died that night. A forensic pathologist concluded the cause of death was acute methamphetamine, methadone, morphine, and fentanyl intoxication. He opined that either the methamphetamine or the fentanyl "by itself probably would have been enough to cause the death."
Taylor Dies of an Overdose
On March 21, 2018, Rosa sent a text to Taylor that read, "Hey Jayson this is my new # shoot dope &get fucked up chase it with Jim beam don't give out my new #." On March 25, Rosa texted Taylor, "[Jayson]. What you doing? Let's drink some Coors and smoke maybe?" The next day, around 12:35 p.m., Taylor texted to Rosa, "Hey dude" and, a few minutes later, "Bring some tar." Rosa presumed "tar" meant heroin.
Rosa testified that" 'shoot dope, get fucked up and chase it with Jim Beam'" was a quote from the back cover of an album that he and Taylor listened to when they were younger.
On March 26, 2018 (the same day he had texted about "tar"), Taylor arrived at Rosa's house around 5:30 to 6:00 p.m., and he was already drunk. This was the first time Hilley met Taylor; they chatted briefly and realized they shared a mutual friend, Bryce Cook. Hilley saw Rosa and Taylor talking while Rosa was "making a shot," meaning he was preparing a syringe with heroin. According to Hilley, Rosa said he mixed methamphetamine with his heroin. Hilley did not see what Rosa did with the syringe. Hilley went to his room.
A few minutes later, as Hilley was leaving the house with his girlfriend, he saw Taylor slouching and falling off a chair in the living room. Hilley was concerned because Taylor had already been drinking alcohol. Hilley told Rosa that he needed" 'to call an ambulance or deal with this.'" Rosa responded," 'Not again; not again; this shit ain't happening again.'" Rosa started shaking and slapping Taylor. Hilley said," 'You need to get some help; I'm leaving,'" and he and his girlfriend left. Hilley testified he did not call an ambulance because, "Again, I was told not to: 'You're not calling an ambulance for him to my fucking house.'" After leaving the house, Hilley called a few people looking for Narcan, but he did not find any.
Hilley and his girlfriend returned to the house about two-and-a-half hours later. Hilley saw Taylor lying on the floor face-down with his body in a "contorted" position. Hilley was upset and told Rosa he needed" 'to call an ambulance right now,'" reminding him he" 'already lost one'" of his best friends. Rosa said," 'No, you're not calling an ambulance. There's not an ambulance coming to this house.'" Hilley yelled at Rosa to get help. Rosa said," I'm not dealing with that; he's a grown man.' "
Hilley was upset and told his girlfriend to go back to their room and get a phone" 'and film what's going on here so that we're protected, everybody knows what's actually happening here.'" Hilley also tried to call Taylor's friend Cook for help. Rosa and Macintosh began kicking Taylor and yelling at him," 'Piece of shit, get up,'" and," 'Don't do this shit here.'" Rosa and Macintosh dragged Taylor to the middle of the living room and "were talking about shooting him up . . . with crystal meth." Hilley saw Rosa with a syringe.
Hilley's girlfriend started recording the scene surreptitiously. Four video clips of the recordings were played for the jury.
In the videos, Rosa and Macintosh can be heard and seen trying to find a vein on Taylor into which they could inject a syringe. In a video clip that runs over nine minutes, Macintosh complained that Taylor "doesn't have much blood pumping" and she "can't see anything." As she looked for a site to inject Taylor, she asked Rosa to "hold the tie," and he responded that he would not hold the tie because "I'm sick of this fucking disgusting fucker." Rosa and Macintosh argued at length about whether to "jab it into his muscle" as Rosa suggested or to continue looking for a vein; Macintosh said it would "be really a lot better if it got in a vein." Rosa then said he would "start a new one, a fresh one" and they could continue looking for a vein with the next shot. Macintosh responded, "You have more?" When Rosa indicated he did have more, Macintosh agreed he should "jab it in a muscle then." She said she would not help anymore and Rosa "yelled at me too much." In the last video clip, Rosa can be seen walking around holding a syringe. Rosa appears to walk from the living room to the kitchen as he states that his short-term memory is "fucked up" and he cannot remember where the "big ol' rock from Dave" is. Rosa said that he "busted it all up" and "drew a big shot out," then he "and Christine fought over it for a fuckin' half an hour and now I go to get another shot and I have no idea where the thing is." According to Hilley, after the last video was recorded, Rosa and Macintosh "got a shot in" Taylor, who "woke up for a minute, said half of his name, and then fogged out again."
Hilley went to his bedroom and left voicemail and text messages for Cook (Taylor and Hilley's mutual friend), who returned his call after about 20 minutes. Hilley told Cook he needed to help Taylor. Cook arrived at Rosa's house 10 or 15 minutes later.
Cook testified that when he arrived at Rosa's house, Taylor "looked like he was dying." Cook asked Rosa what was in Taylor's system. Rosa said Taylor had been drinking, and he had prescription medicine, fentanyl, and speed in his system. Cook drove Taylor to the hospital.
In cross-examination, Cook testified it was possible Hilley (not Rosa) said "fentanyl." Detective Vaughn Andrews, the investigating officer testified Cook told him that Rosa said Taylor had heroin in his system and that "then Hilley, under his breath, said kind of, 'Some fentanyl is in there too' ...." Hilley testified that when Cook asked Rosa what Taylor had taken, defendant responded," 'Alcohol, Xanax, heroin.' "
Taylor was in the ICU for three days and died on March 29, 2018. A forensic pathologist concluded he died from "complications of acute methamphetamine, fentanyl, morphine, alprazolam, alcohol, and fluoxetine intoxication." Toxicology studies on blood drawn after Taylor was taken to the hospital showed a "very high" level of methamphetamine, an elevated level of fluoxetine, which is an antidepressant, and "therapeutically low levels of the remaining drugs." The pathologist opined that "the combination of all these items resulted in death," although the amount of methamphetamine alone could have caused Taylor's death.
Evidence of Possession, Manufacture, and Distribution of Drugs
In a search of Rosa's home conducted three weeks after Taylor died, police found: in the living room, a notebook with a recipe for the manufacture of DMT, a vial of DMT, a butane fuel can, two Pyrex dishes that each contained a razor blade and a brown substance, about 18 empty vials, and a loaded syringe with suspected heroin; in Rosa's bedroom, a cell phone, a pot containing suspected DMT, a butane fuel can, a vial containing DMT, more empty vials, and prescription bottles in Rosa's name for amphetamine and methadone; and in the kitchen, another cell phone and a digital scale.
Text messages were extracted from Rosa's cell phones, and many outgoing and incoming messages sent from August 2017 to April 2018 referred to the sale or distribution of drugs including Xanax, heroin, Adderall, marijuana, and DMT.
For example, an incoming message from August 29, 2017, read, "Hey Toby, can you help me out with a lil bit of dark?, I get paid on 2 days [sic]." Rosa wrote back, "Hey Rob. I wish we were in a position to help but we've adopted a never ever never never ever front policy. Unless, of course, you're very sick and only offer methadone. But it lasts long enough to hustle $ and not be incapacitated." An outgoing message from April 17, 2018, read, "Hey Shivani. Do you wanna get together and smoke some killer d'ms and have a really good time? C'mon, ya got nuthin to lose. Right, pretty baby?" Detective Andrews, who had been a narcotics detective for four years, opined that "dark" referred to heroin and "d'ms" referred to DMT.
Rosa's Writings-Texts and a Handwritten Letter
Rosa's outgoing text messages also included comments about his friends' overdoses and deaths. On March 29, 2018, Rosa's friend Gene sent him a text reading in part, "Our friends are dead from heroin at your house. I think maybe its [sic] time to be rid the [sic] HEROIN and the wicked deadly voodoo curse on the Rosa lair, don't you ?" On April 3, Rosa responded, "Not at all. I think it's time to push heroin even harder. Let all the fuckwads join [Taylor] and [Coffey] since they miss em so much. I got hot shots for everyone." A few minutes later, Rosa texted, "If only they'd have the consideration to shoot THEIR dope somewhere besides here." And, an hour and a half later, Rosa texted, "What, you some kind of NAZI? As long as I live I will see to it that my friends can consume whatever drugs they damn well please, including cyanide and bullets. Maybe y'all should join the Just Say No club with the Reagans."
Rosa also sent a letter to Wood in which he described the circumstances surrounding Coffey's overdose and his view of Taylor's death. Rosa wrote in part: "[Coffey] came here about twice a week and usually stayed overnight on Fridays. For the last 6 months or so. He called me from work on Friday, March 11th. [¶] Says he's comin' over, wants to party, has 'the fire' (in case you're an idiot, that's what they call the badass heroin these days[)].
Rosa is wrong about the date; Coffey went to his house and overdosed on Friday, March 9, 2018.
"So we hung out a while, and I had an appointment with a tree trimming company regarding the palm tree in front.... So I'm out negotiating a good deal on the trim job for a good 45 min or so. I came inside, sat down in the living room, happy about the deal I negotiated. Sat there a half-hour maybe, when I was struck by terror. Like panic. I screamed "Where's [Coffey]?" Everyone's like, 'Duh, in the backyard?['] [Macintosh] was the last one to speak to him when he asked her for a cotton. I started saying oh no oh no oh no no no and I went into the front bedroom that faces the street.
"Almost didn't see him but he was on the floor in a curled up kinda fetal position. Weird thing was his works and stuff were all put away in the 'Traveling Australia' book. That's where he kept his things. We had a joke &he'd say, I'm going to Australia ha ha and I'd say be careful ha ha. [¶] I turned him and he was fucking already kinda stiff.... I tried CPR and it was the least effective I'd ever seen it. Hit him with NARCAN 4 times, nothing. We took him out to his truck. Digger drove and I rode in back with [Coffey] still doing mouth-to-mouth. [¶] . . .
"About 2 weeks prior to this, Big Bry did the same fucking thing but I was able to wake him. Bathroom floor. Door locked. Fuck!
"And [Taylor]! Fuck that idiot. Check his autopsy. Organ failure from Atavan and alcohol.... Do I need to start a goddamn daycare for men in their late 40's? Why does everyone wanna come here to do their drugs and die? I guess I'm just popular. Charisma. I don't judge. One of the last safe houses where people can be themselves."
Defense
Rosa testified on his own behalf. Regarding Coffey's overdose, his testimony was largely consistent with Hilley's. It differed in that Rosa thought Coffey arrived around 4:15 p.m. when Rosa was already outside with the tree trimmer, and, according to Rosa, he spoke with Coffey briefly outside, Coffey went in the house, and Rosa stayed outside working on a tree until about 6:00 p.m. When Rosa went back in the house and asked about Coffey, Macintosh said she had talked to him about an hour or hour-and-a-half earlier and he had asked her for an alcohol swab; she reported that Coffey said he wanted to be careful that his injection sites were clean. Rosa felt "[d]readful" when he heard this because he thought, "if [Coffey] was going to inject something and no one had seen him since then, he could be in trouble." Rosa denied that Hilley asked to call an ambulance.
Rosa's testimony conflicts with his earlier account in his letter to Wood where he wrote he "hung out a while" with Coffey before the tree trimmer arrived. His letter is consistent with Hilley's testimony that Rosa and Coffey spent time inside the house together before Rosa went outside to talk with the tree trimmer.
Rosa thought Coffey had overdosed on opiates because Coffey mentioned "[s]omething about the fire" when he arrived, and Rosa understood "the fire" to mean "high-quality dope." In addition to Rosa administering Narcan and performing CPR, Macintosh put ice down Coffey's pants. Rosa explained, "Somebody had said that that [i.e., putting ice down pants] had worked in the past on multiple occasions."
After Coffey's death, Rosa started hearing from his "more loyal friends," including Taylor, that "things [were] being said about me [on social media] . . . that offended me like I would let my best friend just die so I wouldn't have to be bothered with the inconvenience of some kind of a minor legal problem."
Rosa acknowledged that Taylor sent him a text message reading, "Bring some tar," on March 25, 2018, but testified he "ignored that one." They planned for Taylor to come over to Rosa's house to "reminisce about our friend that died." When Taylor arrived, he was "[p]retty drunk." Taylor talked "about how he wanted to get some dope," and Rosa "refused to have any part of it." Taylor went to visit Dave in the guesthouse in Rosa's backyard, and he was there for 30 minutes or longer.
Later, Rosa saw Taylor back in the house in the living room talking with Hilley. Rosa saw an "exchange" between Taylor and Hilley and it looked "like somebody was holding a spoon and somebody else was sucking something out of it" into a syringe. Rosa went to hang out with Macintosh but later checked on Taylor "to see that he wasn't going to fall out." Taylor "was more intoxicated" than when he had just been drunk, but he "didn't appear to be dying of a heroin overdose."
Rosa became concerned when Taylor looked like he was going to fall asleep because, in his experience, "you definitely don't want to let people fall asleep." To keep him awake, Rosa talked to Taylor and then read him some short stories, reading aloud for two or three hours. Rosa "kept making sure [Taylor] could answer questions."
Rosa stopped reading when Hilley returned to the house. At that time, Taylor "was still able to say, 'I'm Jayson Taylor. I'm fine. Don't call my sister.'" Taylor's sister worked at Memorial Hospital, and Taylor "did not want to go to that hospital at all." Rosa asked Hilley to keep an eye on Taylor while he went to the store. Rosa returned within 15 minutes and found Taylor "unresponsive." Hilley was in his bedroom. Rosa had "never seen a situation deteriorate that way so fast."
Rosa testified he panicked. He woke up Macintosh and "asked her about Narcan." He "remembered seeing a bottle of it in the refrigerator," and "she did eventually fish one up." Rosa "waited until the Narcan was in a syringe and . . . tried to inject him with it." Taylor seemed to respond to the Narcan for a second or a minute. Rosa and Macintosh also tried CPR, and Rosa told Hilley to call Cook. Rosa may also have put ice down Taylor's pants.
Rosa acknowledged the cell phone video taken by Hilley's girlfriend showed him and Macintosh looking for a vein on Taylor. Macintosh "insisted it had to go into a vein," but Rosa thought they "should just put it in a muscle because I didn't know for sure but I thought it would have the same effect either way."
When Cook arrived, Rosa told him what drugs he thought Taylor had taken. Rosa had taken speed earlier that day, and after Cook left with Taylor, he took more speed. He testified the video clip that showed him holding a syringe and talking about a "rock" from which he "drew a big shot" and fought about with Macintosh for half an hour had nothing to do with what he had just been trying to inject into Taylor.
Based on his "experience with the way certain drugs make people act," Rosa opined that Taylor "looked like he was drunk at first, wired [on speed] for a minute, high on smack [heroin]."
Rosa denied that Hilley ever asked for an ambulance to be called. Rosa knew that "when people take drugs, there's a potential to overdose." Before trying to save Coffey, Rosa had administered CPR about six times for overdoses.
The defense called Rosa's friend Christopher Kimble to testify about a conversation he had with Hilley regarding a cell phone video, which Hilley thought "would be damning evidence towards [Rosa]." The conversation took place around a month or less after Taylor overdosed, and Rosa "was kicking [Hilley] out of the house." Hilley was distraught because he had nowhere to go, and he conveyed to Kimble that "he needed a silver bullet because multiple times in the past he had been . . . backstabbed by friends." Kimble testified, "[Hilley] was trying to tell me that he was worried that . . . he would be stabbed in the back again and he had provided this-he provided heroin to the-to the deceased and he had-not at the time but he was saying, 'I was just trying to be friendly and share but now they're going to try and get me for murder so I'm going to use the video as sort of like, you know, like a backup plan or whatever,' you know." Hilley "thought [Rosa] owed him" and said he might" 'blackmail'" Rosa if Rosa did not help him get a car. Kimble testified that Hilley "said he would bury" Rosa if Rosa did not help him. Kimble described the conversation as "vengeful. If things don't go my way, I'm going to get back at [Rosa]."
Kimble admitted that he never told the police what Hilley said. In an interview with a defense investigator, Kimble apparently said that Rosa told him there was no Narcan in the house after Coffey overdosed.
In cross-examination the prosecutor misspoke, apparently referring to the first overdose victim as Hilley rather than Coffey. After establishing that Kimble talked to the investigator "about the OD of Jayson Taylor and Mr. Coffey," the prosecutor asked, "Did you tell the investigator that Mr. Rosa told you that there was no Narcan in the house after Mr. Hilley overdosed?" Later, he asked, "So that statement [in the investigator's report] seems to appear correct-" "-that you told the investigator after Mr. Hilley died, there was no Narcan in the house?" (Italics added.) It is clear in context that the prosecutor and Kimble understood that the person who overdosed and died was Coffey, not Hilley.
DISCUSSION
A. Excluding Reference to the Nature of Hilley's Pending Charges
At the start of Hilley's testimony, the prosecutor elicited that Hilley was currently awaiting trial in Hawaii in three felony cases, but the jury did not hear the nature of the pending charges. Rosa contends the trial court erred in not allowing the jury to learn that Hilley was charged with possession of fentanyl for sale. We find no error.
1. Background
In a hearing on motions on limine, the parties discussed the admissibility of potential impeachment evidence of Hilley. Defense counsel noted that when Hilley spoke to Detective Andrews in April 2018, he "ask[ed] for all kinds of things," including relocation assistance and help for his girlfriend, and counsel suggested there might be an unwritten understanding that Hilley would receive some benefit for his testimony. The court allowed defense counsel to question Hilley and Detective Andrews about any benefits or promises given in exchange for trial testimony and ordered the prosecution "to turn over anything [Hilley]'s received for cooperating with law enforcement." The prosecutor stated the only benefit Hilley received following his police interview was that he was "cited instead of being booked in the jail" for an outstanding warrant, but "there was no further cooperation" or "benefit given." The prosecutor recognized the fact that Hilley was cited instead of being booked in jail was "fair game" for impeachment.
The parties also informed the court that Hilley was currently in custody in Hawaii on drug-related charges. The prosecutor reported that, after the preliminary hearing in 2019, Hilley moved to Maui County and "ended up getting arrested on a few occasions." In a December 2020 search of Hilley's residence, law enforcement found methamphetamine, heroin, LSD, and marijuana, and Hilley was charged with promoting a dangerous drug as a result. He was again arrested for promoting a dangerous drug when a second search of his residence the same month yielded methamphetamine and fentanyl. Then, in March 2021, 51.87 grams of heroin and 5.25 grams of fentanyl powder were found in his residence, and Hilley was charged with "sales of both of those substances as a felony." Hilley had been in custody in
Hawaii since March 2021, and the matters were still pending at the time of Rosa's trial in April 2022.
The prosecutor told the court his only contact with Hawaii prosecutors was to arrange transportation of Hilley to Sonoma County for his testimony at trial. He continued, "But as far as any benefit or deals or lenient sentences for the cases he's facing, there has been no conversation to that effect....I'm not promoting any benefit be given for testimony in this case, and Hawaii is aware of that. What they do with it, I can't promise what they'll do with the case once he returns [to] Maui County."
Defense counsel argued the pending charges were relevant because there was an issue about "who supplied drugs to whom in this case." The prosecutor agreed defense counsel could ask Hilley whether he gave the victims drugs, but he sought to exclude questions about "the conduct in Hawaii" because "they're open cases" and Hilley "has rights to counsel, rights to remain silent on those issues."
The trial court ruled that defense counsel could impeach Hilley with the fact that he had felony charges pending in Hawaii because "it does seem to be that Mr. Hilley may wish to testify on behalf of the prosecution with some sort of an idea that he thinks he can get a deal." But the court stated it was "going to sanitize those pending cases" because "it would tend to mislead the jury" to "get into the nature of the charges."
At trial, the jury learned that Hilley was a drug addict who previously used heroin, fentanyl, and marijuana and that he had misdemeanor convictions for vehicle theft and giving false information to a police officer. He testified he was currently in custody in Maui County on "three open felony cases," and the district attorney's office paid for his flight to Sonoma County to testify. In cross-examination, defense counsel elicited testimony that Hilley had known Detective Andrews 10 or 15 years and had asked Andrews for help for himself and his girlfriend during his police interview in April 2018. Hilley admitted he wanted help in a "car case" in exchange for the cell phone video. He acknowledged he was not prosecuted for using drugs in Rosa's home. He denied selling drugs at Rosa's house. Hilley testified that he did not want Rosa prosecuted for his friends' deaths and he did not "wish anybody to go to jail." But Hilley agreed he said to Andrews," 'I tell you guys everything. I handed you this guy on a platter. I will. We just want to get out of the town....'" He denied that Andrews helped him move to Hawaii.
Regarding Hilley's pending charges, defense counsel asked him, "[H]ave you ruled out the possibility of using the fact that you testified here for the prosecution-to use that fact with your cases pending in Maui?" Hilley responded, "My cases in Maui are completely separate from this. I'm not trying to draw anything from this. I just promised that I would come here, tell the truth, and do the right thing for the families, for the victims, and that's it. I'll deal with my own problems."
Before presenting the defense case, defense counsel renewed his request "to let the jury know that at least two of Mr. Hilley's arrests involve fentanyl." He argued that Hilley was the only person who mentioned fentanyl and, "I think it's kind of telling. It suggests that there may be something far more nefarious going on that I think anyone thought at the beginning of this case." The court did not change its ruling that evidence that Hilley's arrests involved fentanyl would not be admitted.
2. Analysis
Rosa claims the trial court erred in not allowing the defense to present evidence that Hilley's pending charges involved fentanyl. He argues "the exclusion of this critical impeachment evidence" violated his rights under the Confrontation Clause because "the jury never was given sufficient information needed to accurately gauge [Hilley]'s credibility and motives to implicate" Rosa. This claim lacks merit.
"[T]he defense is entitled to elicit evidence that a witness is motivated by an expectation of leniency or immunity" as "[s]uch evidence is obviously probative of bias or motive." (People v. Dyer (1988) 45 Cal.3d 26, 49-50.) Consequently, it has long been recognized that "a prosecution witness can be impeached by the mere fact of pending charges" because this "is a 'circumstance to show that he . . . may, by testifying, be seeking favor or leniency. [Citations.]' (3 Witkin, Cal. Evidence (4th ed.2000) Presentation at Trial, § 271, p. 343.)" (People v. Martinez (2002) 103 Cal.App.4th 1071, 1080.)
On the other hand, arrests are not admissible to prove guilt of the charged crimes. (People v. Medina (1995) 11 Cal.4th 694, 769 ["mere arrests are usually inadmissible, whether as proof of guilt or impeachment"].) Nor is evidence of a specific instance of a person's conduct admissible "when offered to prove his or her conduct on a specified occasion." (See Evid. Code, § 1101, subd. (a).)
Here, the trial court properly allowed defense counsel to question Hilley about his pending charges to impeach his credibility because, as the court explained, "Hilley may wish to testify on behalf of the prosecution with some sort of an idea that he thinks he can get a deal." The circumstance that felony charges were pending was relevant to Hilley's potential motive to lie in favor of the prosecution. The specific nature of those charges was not.
To the extent Rosa argues the jury should have heard about the nature of Hilley's pending charges because that would have been admissible evidence to show Hilley, in fact, possessed fentanyl for sale in Maui County, this argument fails. (See People v. Medina, supra, 11 Cal.4th at p. 769 ["evidence of [the defendant's] mere 'arrests' for violent conduct is not proper rebuttal evidence" to show the defendant was violent in the past].) Moreover, even if evidence of Hilley's arrests was admissible to show he was found with fentanyl in his residence in Hawaii (and it is not), this fact would not be admissible to prove his conduct on another occasion. (Evid. Code, § 1101, subd. (a).) Thus, to the extent Rosa suggests the trial court excluded admissible evidence tending to show Hilley had motive to lie because he supplied fentanyl to the victims, Rosa is mistaken. Evidence that Hilley was arrested for possession of fentanyl for sale could not have been admitted to show Hilley supplied fentanyl to either victim.
Accordingly, the trial court did not err in not allowing evidence of the specific nature of Hilley's pending charges. Defense counsel was permitted to cross-examine Hilley extensively about the fact he had charges pending (including that he was in custody awaiting trial, which suggests the seriousness of the charges), which was relevant to suggest he was motivated to lie in favor of the prosecution in the hope or expectation of favor or leniency in his pending cases. But the defense was not allowed to present the jury with inadmissible evidence about the nature of those charges.
Rosa's reliance on People v. Castaneda-Prado (2023) 94 Cal.App.5th 1260 is unfounded. In that case, the trial court excluded entirely evidence that a prosecution witness "believed that, by accusing [the defendant] of sexual molestation, she was helping her mother obtain a 'U visa' a type of visa that can provide legal status for victims of certain crimes who assist in the investigation of those crimes"; the Court of Appeal concluded this exclusion violated the defendant's right to confront a witness against him under the federal and state constitutions. (Id. at p. 1267.) There was no similar exclusion of evidence of a prosecution witness's possible motive to lie in this case. Rosa identifies no relevant, admissible impeachment evidence that was withheld from the jury.
B. Jury Instruction on Accomplice Witnesses
At defense counsel's request, the trial court instructed the jury with CALCRIM No. 334-on witness testimony where accomplice status is disputed-as to Hilley's testimony regarding count 4 (maintaining a place for selling or using controlled substances). Rosa contends the trial court prejudicially erred in failing to give a similar instruction for the manslaughter counts. We disagree.
In his opening appellate brief, Rosa asserts an accomplice instruction should have been given "as to counts one through three." However, he does not argue substantial evidence supports a finding that Hilley was an accomplice in administering methamphetamine to Taylor (count 3). Any claim regarding count 3 is waived. (See People v. Dougherty (1982) 138 Cal.App.3d 278, 282-283 [deeming waived appellate contentions that were "bereft of factual underpinning, record references, argument, and/or authority"].)
Section 1111 provides, "A conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof."
An accomplice is "one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given." (§ 1111.) "An 'accomplice' is one who knowingly, voluntarily, and with common intent with the principal offender unites in the commission of the crime." (People v. Jones (1967) 254 Cal.App.2d 200, 213.)
Whether a witness is an accomplice "is a question of fact for the jury unless the evidence permits only a single inference." (People v. Sully (1991) 53 Cal.3d 1195, 1227.) It is the defendant's burden to prove a witness is an accomplice by a preponderance of the evidence. (Id. at p. 1228.) The trial court has a sua sponte duty to instruct the jury on the principles governing accomplice testimony if, but only if, there is substantial evidence to support a finding that a prosecution witness was an accomplice. (People v. Zapien (1993) 4 Cal.4th 929, 982; People v. Boyer (2006) 38 Cal.4th 412, 466.)
Rosa argues the trial court's finding that there was sufficient evidence to support an instruction on accomplice liability for maintaining a place for selling or using controlled substances (count 4) means there was sufficient evidence to find him an accomplice for the manslaughter counts. This is not correct. As we have mentioned, the prosecution argued to the jury that Rosa was liable for involuntary manslaughter of his friends under two independent theories. The first theory was that Rosa aided and abetted the victims in their use of a controlled substance. The second theory was that Rosa failed to perform a legal duty to render aid, where the legal duty arose because Rosa "increased the risk of harm to [the victims] by allowing his home as a place to ingest dangerous drugs and failing to summon professional assistance and instructing others not to summon professional assistance." (Quoting the jury instruction given in this case.)
No substantial evidence supports a finding that Hilley was an accomplice to Rosa under either of these theories. As to the first theory of liability, there is no evidence that Hilley, with common intent, united with Rosa to aid and abet the victims in their use of drugs. As to the second theory of liability, there is no evidence Hilley instructed others not to call for an ambulance when the victims appeared to have overdosed; thus, there is no evidence that Hilley shared Rosa's legal duty to render aid.
In any event, even assuming error, there is no harm. "A trial court's failure to instruct on accomplice liability under section 1111 is harmless if there is sufficient corroborating evidence in the record. [Citation.] 'Corroborating evidence may be slight, may be entirely circumstantial, and need not be sufficient to establish every element of the charged offense. [Citations.]' [Citation.] The evidence 'is sufficient if it tends to connect the defendant with the crime in such a way as to satisfy the jury that the accomplice is telling the truth.'" (People v. Lewis (2001) 26 Cal.4th 334, 370.)
Here, there is sufficient corroboration in the record connecting Rosa with the crimes. As to count 1, Rosa's letter to Wood shows Rosa knew Coffey wanted to come to his house "to party" and Coffey had "badass heroin." Rosa's text message to Coffey suggests Rosa encouraged Coffey to come to his house to use drugs; when Coffey texted that he wanted to hang out, Rosa responded, "All right!!! Party party party." Rosa's testimony shows he knew how dangerous it was to use heroin without supervision; he became frantic when he realized no one had seen Coffey for a while because he knew Coffey "could be in trouble" if he had injected drugs. Yet, Rosa admitted he did not call 911 when he found Coffey unconscious in his room. As to count 2, Rosa's testimony shows he knew Taylor used drugs in his house, and he became concerned about Taylor when he appeared to be falling asleep. The cell phone videos also connect Rosa to Taylor's overdose.
Accordingly, we reject Rosa's claim of prejudicial error based on failure to instruct the jury on accomplice witnesses with respect to Hilley's testimony supporting the involuntary manslaughter counts.
C. Jury Instruction on Legal Duty to Render Aid
Rosa next contends his convictions for involuntary manslaughter must be reversed because it is "premised on a mis[s]tatement of law, that [Rosa] 'had a legal duty to render aid' [to] the deceased because they came to his home to use their own drugs." This contention is based on an apparent misunderstanding of the prosecution's alternative theories of liability and the instructions actually given in this trial. The jury was not instructed that a duty to render aid would arise from the mere fact the victims went to Rosa's home to use their own drugs.
1. Instructions Given
The trial court gave the jury separate instructions on the prosecution's two alternative theories of involuntary manslaughter: first, a version of CALCRIM No. 581 for the misdemeanor-manslaughter theory that Rosa aided and abetted the victims' use of a controlled substance "in a reckless way that create[d] a high risk of death or great bodily injury" and, second, a version of CALCRIM No. 582 on the theory Rosa failed to perform a legal duty.
The jury instruction on failure to perform a legal duty provided in relevant part: "[T]he People must prove that: [¶] 1. The defendant had a legal duty to [the victims]; [¶] 2. The defendant failed to perform that legal duty; [¶] 3. The defendant's failure was criminally negligent; [¶] AND [¶] 4. The defendant's failure caused the death of [the victims].
"The People must prove that the defendant had a legal duty to render aid to [the victims]. [¶] . . . [T]o prove that the defendant had this legal duty, the People must prove that the defendant increased the risk of harm to [the victims] by allowing his home as a place to ingest dangerous drugs and failing to summon profession assistance and instructing others not to summon professional assistance.
"If you decide that the People have proved that the defendant increased the risk of harm to [the victims] by allowing his home as a place to ingest dangerous drugs and failing to summon profession assistance and instructing others not to summon professional assistance, then the defendant had a legal duty to render aid to [the victims].
"If you have a reasonable doubt whether the defendant increased the risk of harm to [the victims] by allowing his home as a place to ingest dangerous drugs and failing to summon professional assistance and instructing others not to summon professional assistance, then you must find him not guilty.
"Criminal negligence involves more than ordinary carelessness, inattention, or mistaken judgment. A person acts with criminal negligence when: [¶] 1. He or she acts in a reckless way that creates a high risk of death or great bodily injury; [¶] AND [¶] 2. A reasonable person would have known that acting in that way would create such a risk."
2. Relevant Legal Principles
Involuntary manslaughter is the unlawful killing of a human being without malice "in the commission of an unlawful act, not amounting to a felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection." (§ 192, subd. (b).) The mens rea required for involuntary manslaughter is criminal negligence. (People v. Butler (2010) 187 Cal.App.4th 998, 1007; People v. Penny (1955) 44 Cal.2d 861, 869 ["without 'due caution and circumspection' is the equivalent of 'criminal negligence'].)
Although the general rule is that "one has no legal duty to rescue or render aid to another in peril, even if the other is in danger of losing his or her life," the law may impose a duty to act when a "special relationship" exists. (Oliver, supra, 210 Cal.App.3d at p. 147.) "In California civil cases, courts have found a special relationship giving rise to an affirmative duty to act where some act or omission on the part of the defendant either created or increased the risk of injury to the plaintiff, or created a dependency relationship inducing reliance or preventing assistance from others." (Ibid.)
For example, in Clemente v. State of California (1985) 40 Cal.3d 202, 213 (Clemente), the California Supreme Court recognized that "the conduct of a patrolman in a situation of dependency resulting in detrimental reliance may give rise to a duty of care" and "that there may be a duty to refrain from conduct which prevents others from giving assistance." In Clemente, the court affirmed judgment after an officer was found negligent in "failing to ascertain the identity of the motorcyclist" who struck the plaintiff (id. at p. 209, italics added); the court recognized liability could be premised on conduct that "prevents other assistance" (id. at p. 213, italics added).
The same principles "governing the imposition of a duty to render aid or assistance as an element of civil negligence" apply "in the context of criminal negligence." (Oliver, supra, 210 Cal.App.3d at p. 149; see People v. Whisenhunt (2008) 44 Cal.4th 174, 217 ["if a defendant has a duty to provide aid to a victim, his or her failure to do so resulting in the victim's death can give rise to a charge of involuntary manslaughter," citing Oliver, supra].)
Oliver illustrates how a defendant's conduct can create a special relationship imposing a duty to render aid, and how breach of that duty may constitute criminal negligence. In that case, defendant Oliver met the victim in a bar, and he "appeared to be extremely drunk" when Oliver drove him to her house. (Oliver, supra, 210 Cal.App.3d at p. 143.) At her house, the victim asked for a spoon. Oliver "knew he wanted the spoon to take drugs," and she gave him one. (Ibid.) The victim" 'shot up' in the bathroom," "came out and collapsed onto the floor in the living room." (Ibid.) Oliver left the victim and returned to the bar. Later, Oliver told her daughter to drag the victim outside. The daughter and her friends dragged the victim, who was snoring, "behind a shed so that he would not be in the view of the neighbors." (Ibid.) The next morning, he was dead. (Id. at p. 144.)
The Court of Appeal concluded these circumstances supported a conviction of involuntary manslaughter. (Oliver, supra, 210 Cal.App.3d at p. 146.) The court explained: "[T]he combination of events which occurred between the time [Oliver] left the bar with [the victim] through the time he fell to the floor unconscious, established as a matter of law a relationship which imposed upon [Oliver] a duty to seek medical aid. At the time [Oliver] left the bar with [the victim], she observed that he was extremely drunk, and drove him to her home. In so doing, she took him from a public place where others might have taken care to prevent him from injuring himself, to a private place-her home-where she alone could provide such care. To a certain, if limited, extent, therefore, she took charge of a person unable to prevent harm to himself. [Citation.] She then allowed [the victim] to use her bathroom, without any objection on her part, to inject himself with narcotics, an act involving the definite potential for fatal consequences. When [the victim] collapsed to the floor, [Oliver] should have known that her conduct had contributed to creating an unreasonable risk of harm....At that point, she owed [the victim] a duty to prevent that risk from occurring by summoning aid, even if she had not previously realized that her actions would lead to such risk. [Citation.] Her failure to summon any medical assistance whatsoever and to leave him abandoned outside her house warranted the jury finding a breach of that duty." (Id. at p. 149.)
3. Analysis
Here, the evidence supports a finding of a special relationship giving rise to a legal duty to render aid under the principles recognized in Oliver and Clemente. By purposefully allowing his home to be used as a place for Coffey and Taylor to inject heroin and methamphetamine and then instructing Hilley not to call for an ambulance when they appeared to have overdosed, Rosa "created a dependency relationship inducing reliance [and] preventing assistance from others," which in turn gave rise to an affirmative duty to render aid. (Oliver, supra, 210 Cal.App.3d at p. 147; see Clemente, supra, 40 Cal.3d at p. 213 ["in a situation of dependency resulting in detrimental reliance," "there may be a duty to refrain from conduct which prevents others from giving assistance"].) The jury instruction in this case provided that a legal duty to render aid arose only if the jury found "the defendant increased the risk of harm to [the victims] by allowing his home as a place to ingest dangerous drugs and failing to summon professional assistance and instructing others not to summon professional assistance." (Italics added.)
On appeal, Rosa does not claim that Oliver was wrongly decided. Rather, he asserts, "no 'special relationship' [was] created simply because [Rosa] allowed his friends to use their drugs of choice at his house." But this was not the prosecution's theory of legal duty, and this is not what the jury was instructed. To find a legal duty to render aid, the jury was required to find, in addition, that Rosa affirmatively "instruct[ed] others not to summon professional assistance." Because Rosa's claim of error does not address the instructions the jury was actually given, it must fail.
D. Sufficiency of the Evidence of Causation for Coffey's Death
Rosa also contends there is insufficient evidence to prove causation for count 1, involuntary manslaughter of Coffey. He argues any failure to render aid to Coffey cannot be considered the proximate cause of Coffey's death because he died quickly after injecting drugs and, by the time Rosa found him, "Coffey could no longer be resuscitated." However, even accepting Rosa's premise that Coffey would have died regardless of what Rosa did when he discovered Coffey had overdosed, reversal is not warranted.
As we have seen, the jury was instructed on two alternative theories of liability. The jury could find Rosa guilty of involuntary manslaughter under a theory of either misdemeanor-manslaughter or failure to perform a legal duty to render aid. Rosa does not separately claim the misdemeanormanslaughter theory of liability lacks sufficient evidence of causation.
We described the jury instruction on failure to perform a legal duty in the previous section. For the misdemeanor-manslaughter theory, the jury was instructed in part: "[T]he People must prove that: [¶] 1. The defendant committed a crime; [¶] 2. The defendant committed the crime with criminal negligence; [¶] AND [¶] 3. The defendant's acts unlawfully caused the death of another person. "The People allege that the defendant committed the following crime of aiding and abetting [Health and Safety Code section] 11550." The instruction referred to other instructions on aiding and abetting and the elements of Health and Safety Cody section 11550 and defined criminal negligence. The instruction further provided: "An act causes death if the death is the direct, natural, and probable consequence of the act and the death would not have happened without the act. A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence. [¶] 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.
Our Supreme Court has held that when a court instructs on two theories of guilt and one of the theories is factually inadequate-meaning "the evidence does not support it"-reversal is not required so long as" 'a valid ground for the verdict remains, absent an affirmative indication in the record that the verdict actually did rest on the inadequate ground.'" (People v. Aledamat (2019) 8 Cal.5th 1, 7.)
Here, a valid ground for the verdict remains because there is sufficient evidence to support a finding Rosa is guilty of involuntary manslaughter of Coffey under a theory of misdemeanor-manslaughter.
"A person aids and abets the commission of a crime when he or she, with knowledge of the unlawful purpose of the perpetrator, and with the intent or purpose of committing, encouraging, or facilitating the commission of the offense, by act or advice aids, promotes, encourages or instigates the commission of the crime." (Oliver, supra, 210 Cal.App.3d at p. 150 [finding sufficient evidence of aiding and abetting the victim's use of heroin where the defendant provided the victim a spoon and allowed the victim to use her bathroom to inject drugs].)
In this case, the jury reasonably could find Rosa facilitated Coffey's use of drugs on March 9, 2018, by providing a place where he could use drugs, and he encouraged Coffey to use drugs at his house when he texted, "All right!!! Party party party." That Rosa actively promoted his home as place for his friends, including Coffey, to use drugs can be inferred from his text declaring, "As long as I live I will see to it that my friends can consume whatever drugs they damn well please, including cyanide and bullets."
The record also supports a finding Rosa acted in a reckless way in aiding and abetting Coffey's use of injection drugs without supervision given Rosa's own testimony that he knew "when people take drugs, there's a potential to overdose," he previously had administered CPR about six times for overdoses, and he knew "if [Coffey] was going to inject something and no one had seen him since then, he could be in trouble." And the jury reasonably could find Rosa's aiding and abetting Coffey in his use of injection drugs was"' "a substantial factor contributing to" '" Coffey's overdose death. (People v. Skiff (2021) 59 Cal.App.5th 571, 581; see, e.g., People v. Edwards (1985) 39 Cal.3d 107, 115-116 [where the jury "could properly have found defendant guilty only of aiding and abetting [the victim] in her own use of heroin," it "could have found defendant guilty of involuntary manslaughter" following [the victim's] accidental overdose death].)
Because Rosa's conviction of involuntary manslaughter of Coffey is supported by a factually adequate theory, even assuming Rosa's contention has merit, we would only reverse if he could affirmatively "show[] that the jury did in fact rely on the unsupported ground." (People v. Guiton (1993) 4 Cal.4th 1116, 1129.) Rosa does not make such a showing.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Stewart, P. J., Richman, J.