Opinion
B226442
08-10-2011
THE PEOPLE, Plaintiff and Respondent, v. TAUHEED CARR, Defendant and Appellant.
Jennifer Hansen, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Idan Ivri, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. LA058112)
APPEAL from a judgment of the Superior Court of Los Angeles County. Michael K. Kellogg, Judge. Affirmed.
Jennifer Hansen, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Idan Ivri, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Tauheed Carr of six offenses: felony leaving the scene of an accident (Veh. Code, § 20001, subd. (a); count 1); attempted kidnapping during a carjacking (Pen. Code, §§ 664, 209.5, subd. (a); count 2); carjacking (Pen. Code, § 215, subd. (a); count 3); attempted carjacking (Pen. Code, §§ 664, 215, subd. (a); count 4); attempted carjacking (Pen. Code, §§ 664, 215, subd. (a); count 5); and carjacking (Pen. Code, § 215, subd. (a); count 6). The trial court sentenced Carr to an aggregate term of 12 years four months in state prison. We affirm.
FACTS
The Crimes
Over several hours during the night and early morning hours of October 9 and 10, 2005, Carr drank vodka and cognac, and consumed marijuana, cocaine and ecstasy. At about 4:00 a.m., Carr got into a Mercedes-Benz in the City of Beverly Hills, even though he knew he was "not even close" to being sober, and started driving to his family's home in the San Fernando Valley. At about 6:15 a.m., Carr drove the Mercedes-Benz through a red light at the intersection of Ventura Boulevard and White Oak Avenue and crashed into the driver's side door of another car which was making a left turn onto Ventura, seriously injuring Russell Uchiyama, the driver. The airbag in the Mercedes-Benz deployed, bloodying his nose, and leaving Carr's blood in the car. A subsequent DNA test by the Los Angeles Police Department crime lab confirmed that blood left in the Mercedes-Benz belonged to Carr. At trial, Carr's counsel conceded in her argument to the jury that "identity was not an issue" in this case.
Emergency workers transported Uchiyama by ambulance to a hospital. He was hospitalized for over a month recovering from a severed aorta, the removal of his spleen, and an injured leg.
After the crash, Carr got out of the Mercedes-Benz and rushed to Gabriella Palomino's Toyota, which she had stopped near the accident. Carr opened the passenger door and told Palomino, "Go," as he started trying to get into her Toyota. Palomino began trying to escape from her car, but Carr reached with his left foot to push the accelerator pedal and then started pushing himself into the driver's seat. As the Toyota was moving forward, Palomino fell out the driver's door onto the street, and Carr drove away. Palomino did not smell alcohol on Carr, and, other than the crime itself, she did not notice anything unusual about Carr during their encounter. Blood subsequently found in Palomino's Toyota came from Carr.
At about 6:30 a.m., near the intersection of Burbank and Reseda Boulevards, Carr drove Palomino's carjacked Toyota up on the curb. After coming to a stop, Carr jumped from the Toyota and unsuccessfully tried to open the doors of two more vehicles, one driven by Jeffrey Harris and the other driven by Arnold Abramowitz. Harris and Abramowitz were able to keep Carr from taking their vehicles. Carr then went to a Mazda being driven by Debra Punch. Carr opened the driver's door of Punch's Mazda, yelled, "Get out of the car," unclipped her seatbelt and then dragged her from the vehicle. Other than the act of the crime itself, Punch did not notice anything unusual about Carr. As Carr was trying to drive away, a tow truck driver tried to block Carr's path. Carr rammed the carjacked Mazda into the tow truck.
At about 6:50 a.m., Carr drove Punch's Mazda through, and broke the arm of, the entry to the "Fly Away" parking lot in Van Nuys. Carr drove around the lot a few times and then drove to his girlfriend's home in Van Nuys, where he tried to wipe his blood out of Punch's Mazda.
Police arrested Carr in February 2008, more than two years after the events on October 10, 2005. In an interview on February 14, 2008, Carr described his activities on the day of his crimes in detail. He did not receive any medical treatment after the crash.
The Criminal Case
In June 2010, the People filed a first amended information charging Carr with the following offenses: felony leaving the scene of an accident (Veh. Code, § 20001, subd. (a); count 1); kidnapping during a carjacking of Palomino (Pen. Code, § 209.5, subd. (a); count 2); carjacking of Palomino (Pen. Code, § 215, subd. (a); count 3); attempted carjacking of Harris (Pen. Code, §§ 664, 215, subd. (a); count 4); attempted carjacking of Abramowitz (Pen. Code, §§ 664, 215, subd. (a); count 5); and carjacking of Punch (Pen. Code, § 215, subd. (a); count 6).
The case initially involved two other offenses: assault with a deadly weapon (motor vehicle) upon the tow truck driver (count 7); and felony vandalism for breaking the parking gate arm (count 8). Those counts were dismissed and are not an issue on appeal.
At a jury trial in June 2010, the prosecution presented evidence establishing the facts summarized above. Carr's defense, broadly summarized was that he was unconscious and did not have the requisite specific intent for any of the crimes because he had been hallucinating due to drug and alcohol intoxication, and the effects of the initial crash into Russell Uchiyama's vehicle.
On June 10, 2010, the jury found Carr guilty as charged in all counts, except count 2, where he was convicted of the lesser included offense of attempted kidnapping during a carjacking.
On July 20, 2010, the trial court sentenced Carr to an aggregate term of 12 years four months in state prison calculated as follows: count 6 was selected as base term and the court imposed the high term of nine years; on count 1, Carr was sentenced to a term of one year, or one-third the midterm, consecutive; on count 2, two years four months, or one-third the midterm of seven years, consecutive; and on counts 4 and 5, the court imposed the high term of nine years on each count and ordered that they run concurrent. The sentence on count 3 was ordered stayed pursuant to section 654.
Carr filed a timely notice of appeal.
DISCUSSION
Carr raises one claim on appeal — he contends all of his convictions must be reversed because the trial court erred when it denied his request for an instruction on "unconsciousness." We disagree.
There is language in the parties' briefs concerning the trial court's "sua sponte" duty to instruct, but the record shows that defense counsel requested an unconsciousness instruction and the trial court "denied" the instruction.
The Governing Law
A person who commits a criminal act "without being conscious thereof" is legally incapable of committing a crime. (Pen. Code, § 26, subd. Four.) The unconsciousness law applies when a person is "not conscious of his or her actions" because he or she is asleep, or suffering from an illness, injury, involuntary drug or alcohol intoxication, or similar condition. (CALCRIM No. 3425.) Legal unconsciousness does not mean that a person lies still or is otherwise immobile; a person is unconscious when he physically acts but is not, at the time, conscious of acting. (People v. Rogers (2006) 39 Cal.4th 826, 887.)
A trial court normally must instruct on general principles of law connected to the facts and necessary for the jury's understanding of the case. (People v. Roldan (2005) 35 Cal.4th 646, 715, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Conversely, a court may refuse an instruction on a defense theory when it is not supported by substantial evidence. (Ibid.)
The Defense Evidence
Carr testified in his own defense. According to Carr, he had been depressed and not sleeping well leading up to the events on October 10, 2005. A few days earlier, on a visit to Arizona, he experienced visual and auditory hallucinations, including seeing a "devilish figure," shadows, and "whispers." He thought the GPS unit in his car showed he was in Baghdad. He had these mental problems even though he had not ingested drugs or alcohol. Carr returned to Los Angeles around 5:30 or 6:00 a.m. on October 9, 2005, after driving through the night. He tried to sleep but could not. That night, Carr drove his cousin in a red Mercedes-Benz to a party. In a hotel room in the City of Beverly Hills, Carr smoked several marijuana cigarettes, drank vodka and took a pill of ecstasy. Carr was then driven in a limousine to a nightclub in Hollywood. In the limousine, Carr did "a bump" (a line) of cocaine. At the club, he drank cognac from a private bottle delivered to his table and smoked "maybe two blunts" of marijuana. Later, he went by limousine to a second club where he drank more cognac and smoked more marijuana. Shortly after 1:00 a.m., the limousine took Carr back to the hotel room, where he drank more alcohol, possibly smoked more marijuana and consumed more cocaine.
At around 4:00 a.m., Carr got into the Mercedes-Benz to drive home even though he knew he was "not even close" to being sober. As he was driving away from the hotel, Carr heard voices again like those on his Arizona trip, and they scared him. The voices continued as he approached the intersection of White Oak Avenue and Ventura Boulevard. He then testified: "I just remember getting into an accident and blacking out." As Carr described it, he remembered hitting the other car, "then we ran into the pole after," and that he "blacked out." When asked, "Do you remember coming back [to consciousness]?" Carr answered, "Vaguely," and explained that he "knew [he] was in the car and it was an accident." He could see things, but they were "blurry" and he could hear things, but they were "not on point;" he did not feel his "normal self." According to Carr, he "did not remember" coming in contact with any of the victims on October 10, 2005. Carr testified that he "remember[ed] coming to when [he] was arriving to [his] girlfriend's house." He told her that "some crazy stuff was happening" but did not tell her what had happened. He did not feel "like [his] mind was straight."
On cross-examination, Carr testified that he had been honest in his 2008 interview with police in which he had described the multiple carjackings and attempted carjackings, as well as trying to wipe blood from Punch's car.
In addition to his own testimony, Carr presented testimony from Arthur Kowell, M.D., a neurologist. Kowell testified that he interviewed Carr on December 15, 2009, roughly four years after the events of October 9 and 10, 2005. Kowell explained the effects that the drugs and alcohol which Carr ingested on the night before the incidents could possibly have on a person, including disinhibition, aggressiveness, coma, impaired decisionmaking and judgment, paranoia, euphoria, hallucinations, memory loss, and auditory hallucinations. Kowell further explained that sleep deprivation also may cause brain dysfunction and poor judgment. Finally, Kowell explained that a cerebral concussion — a brain injury caused by a blow to the head — can cause unconsciousness, and/or a dazed and confused state that may last for minutes, hours, days, or weeks, resulting in loss of concentration and impaired decisionmaking.
Answering a hypothetical question, Dr. Kowell testified that in a person who consumed the amount of drugs and alcohol that Carr testified he did, decisionmaking and ability to tell right from wrong might be impaired. Someone who had consumed this amount of drugs and alcohol would likely slur their speech and would be unable to walk straight.
Dr. Kowell gave Carr an EEG and MRI as part of the December 2009 interview. The tests showed normal brain function. During recross-examination, Kowell acknowledged that he could not determine based on his tests or interview whether Carr actually had suffered a concussion or hallucinations during the events on October 10, 2005.
Instructional Error Claim
The trial court did not err in refusing an unconsciousness instruction. We see no substantial evidence showing that Carr was "unconscious" at the time of the crimes on October 10, 2005. First, Carr's testimony at trial was that he remembered waking after the crash, knowing that he had been in a crash, and that he was feeling pain. The female victims who had direct contact with Carr both testified that he did not appear unusual, except for the fact that he was committing a carjacking. Carr did not merely do physical acts. He joined his actions with demands that correlated with his actions (e.g., "Go"; "Get out of the car"). He then knew enough to know how to navigate to his girlfriend's house, and he knew enough about what had happened to try destroying evidence — he tried to wipe blood out of Punch's Mazda. He had given a detailed account to police before trial. His expert's testimony, generously construed, was an academic discussion of the effects of alcohol, drugs and trauma, without a factual connection to Carr or to the events in October 2005. Indeed, the expert expressly conceded that he could not say whether Carr had suffered a concussion or hallucinations during the events, and he did not testify that Carr's actions were consistent with a person who was unconscious. While Carr testified that he had "blacked out" after the accident and that he could not, at the time of trial, remember events, his remaining testimony showed a momentary blackout only and his pretrial statements to police directly contradicted his testimony in court in that his pretrial statements included a detailed account of the events in October 2005.
People v. Halvorsen (2007) 42 Cal.4th 379, 416-418, is instructive. There, the trial court was found to have properly refused unconsciousness instructions where the defendant acted in a "complicated and purposive nature," including driving from one place to another in order to commit violent crimes. The Supreme Court in Halvorsen also noted that the defendant had a sharp, detailed memory regarding the shootings he committed. (Id. at p. 418.) Under such circumstances, the high court found there was not substantial evidence of unconsciousness so as to warrant an instruction on it. (Ibid.) Similarly, here, the evidence of unconsciousness was "minimal" at best, and thus the trial court did not err in ruling that an unconsciousness instruction was not justified. (People v. Roldan, supra, 35 Cal.4th at p. 716.)
Prejudice
Assuming that an unconsciousness instruction should have been given, we would find the error "was harmless by any applicable standard." (See People v. Boyer (2006) 38 Cal.4th 412, 470 [addressing a lack of an instruction on unconsciousness as an overall defense].) We find the error was harmless even under the more stringent constitutional standard. (See Chapman v. California (1967) 386 U.S. 18, 24.) For all of the reasons explained above in addressing error, we see no possibility whatsoever that the result of Carr's trial would have been different in the event the jurors heard an unconsciousness instruction. Other than Carr's self-serving and self-impeaching testimony about having a blackout and not remembering events, there is no evidence of any meaningful value in the record to support a conclusion that Carr had been legally unconscious during the crimes on October 10, 2005.
We reject Carr's argument that the lack of an instruction on unconsciousness was reversible "per se" because it amounted to an error of federal constitutional magnitude. Carr's reliance on cases such as U.S. v. Unruh (9th Cir. 1987) 855 F.2d 1363 (Unruh), and United States v. Escobar De Bright (9th Cir. 1984) 742 F.2d 1196 (Escobar De Bright), is misplaced. First, those cases — insofar as they interpret federal law principles — are not binding on our court. (People v. Williams (1997) 16 Cal.4th 153, 190.) Second, decisions of our state Supreme Court are binding on us, and, as we noted above, our state Supreme Court has analyzed the omission of an unconsciousness instruction for harmless error. (See People v. Boyer, supra, 38 Cal.4th at p. 470.) Third, our state courts have long followed the rule that an instructional error generally may be found harmless when the jury necessarily resolved the pertinent factual issue framed by the instruction against the defendant under other, properly given instructions. (People v. Stewart (1976) 16 Cal.3d 133, 141.) Here, the jury instructions required the jurors to determine whether Carr did or did not have the requisite specific intent for the charged crimes. By finding him guilty, the jury found he did have the requisite specific intent. In finding specific intent, the jury necessarily also found that Carr had been conscious.
Finally, we do not read the federal cases cited by Carr to support as inviolate a rule of "per se" reversible error as is argued by Carr. In both the Unruh and Escobar De Bright cases, the courts were concerned with instructional omissions on the defendant's "theory of the case." (See Unruh, supra, 855 F.2d at p. 1372; Escobar De Bright, supra, 742 F.2d at pp. 1201-1202.) At Carr's trial, the theory of his case was that he did not have the requisite specific intent for his crimes due to intoxication and the effects of the crash, and the trial court did not deny Carr's instructions on that theory. In the context of Carr's trial, an instruction on unconsciousness would have done little more than compliment his lack of intent defense, and we see no reason not to apply a harmless error analysis. (Cf. People v. Samaniego (2009) 172 Cal.App.4th 1148, 1165 ["An instruction that omits or misdescribes an element of a charged offense violates the right to jury trial guaranteed by our federal Constitution, and the effect of this violation is measured against the harmless error test of Chapman v. California[, supra,]386 U.S. [at page] 24."].)
To the extent Carr suggests that his constitutional right to a fair trial was violated, we note that more recent federal cases have examined earlier cases such as Escobar De Bright, and have explained that those earlier cases involved the role of federal appellate courts in supervising federal trial courts, and that, as to a constitutionally based claim that a trial was unfair, such a claim is not dependent upon a single instructional omission, but rather, is dependent upon the evidence in the case and the overall instructions given to the jury. (See, e.g., Duckett v. Godinez (9th Cir. 1995) 67 F.3d 734, 745.) Carr has not persuaded us that his trial was unfair.
We also reject Carr's reliance on state court cases such as People v. Lee (1987) 43 Cal.3d 666 for a different result. In Lee, at page 675, footnote 1, our state Supreme Court cited People v. Modesto (1963) 59 Cal.2d 722, 730 in passing for the proposition that an "improper refusal of instructions on a defense theory supported by the evidence has been deemed reversible per se." In more recent years, however, the Supreme Court has been more willing to apply a harmless error analysis, even where an instructional error may have affected the jury's role in determining every material issue presented by the evidence. (See, e.g., People v. Breverman (1998) 19 Cal.4th 142, 164-179 [examining and abrogating the "near automatic" rule of reversible instruction error established by People v. Modesto and other cases].) As we explained above, harmless error is proper under the circumstances of this case even considering any constitutional implications. When a harmless error analysis is applied, even under the more stringent federal constitutional harmless error standard, we are left with no doubt that Carr's convictions must be affirmed.
DISPOSITION
The judgment is affirmed.
BIGELOW, P. J.
We concur:
RUBIN, J.
FLIER, J.