Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Imperial County No. JCF20785, Matias R. Contreras, Judge.
McINTYRE, J.
Cynthia Lee Erickson appeals a conviction of operating a vessel under the influence of an alcoholic beverage causing injury. She contends the trial court: (1) erroneously permitted a prosecution witness to testify as to the cause of the accident; (2) improperly instructed the jury; (3) had a sua sponte duty to give lesser included offense instructions; and (4) abused its discretion by denying probation. She also contends that the cumulative effect of these errors warrants reversal of the judgment. As we shall explain, we reject Erickson's individual claims of error. Because there were no individual errors, there is no cumulative error and we need not address this claim.
FACTUAL AND PROCEDURAL BACKGROUND
Because Erickson does not challenge the sufficiency of the evidence to sustain her conviction, we briefly recite the operative facts in the light most favorable to the judgment. (People v. Osband (1996) 13 Cal.4th 622, 690.)
On the evening of July 30, 2004, Erickson, 17-year-old Melissa S., and five other individuals gathered at a home in Yuma, Arizona. The following morning, the group left to spend the day at the Colorado River. Erickson drank a Bloody Mary in the morning, and the group brought a cooler containing beer, wine coolers and Jell-O shots made with vodka.
The group arrived at the river and launched a boat and a two-seater jet ski. They later ate lunch, drank alcohol and had Jell-O shots. Melissa and a friend rode the jet ski, and were on their way back to the group when the oil light came on. Erickson looked at the jet ski, determined that it needed oil, and decided to ride the jet ski to the launch site to get more oil. Melissa accompanied her as a passenger.
In the meantime, Donald Partridge was driving his jet boat up the river at about 10 to 15 miles per hour. Partridge saw two women on a jet ski travelling at about 40 to 50 miles per hour. The jet ski made a hard left-hand turn to avoid another boat, bringing it directly into the path of Partridge's boat. Partridge attempted to avoid the jet ski, but the two vessels collided.
Melissa suffered a compound facture of the left femur, a broken pelvis, and a severe laceration from the groin, through the center of the pelvis, to the rectum. She died from her injuries. Erickson suffered a lower leg amputation. One of the nurses treating Erickson, and two sheriff's deputies noticed a strong smell of alcohol on Erickson's breath. One of the deputies obtained a sample of Erickson's blood. Analysis of the blood sample revealed that Erickson had a blood alcohol concentration of 0.27. With a blood alcohol concentration this high, a person would exhibit impaired judgment, lower inhibitions, increased confidence, impaired perception and attention, slowed reaction time, impaired vision, and a loss of large muscle and fine muscle motor control.
The Imperial County Grand Jury issued an indictment charging Erickson with vehicular manslaughter without gross negligence in the operation of a vessel and the felony of operating a vessel under the influence of an alcoholic beverage causing injury. A jury found Erickson not guilty of manslaughter, but guilty on the remaining charge. The trial court sentenced Erickson to 16 months in state prison. Erickson timely appealed.
DISCUSSION
I. Expert Testimony
A. Facts
Erickson called David Smith, an aquatic safety consultant, as an expert witness in her case-in-chief. Smith concluded that Erickson's jet ski had the right of way, and that the speed of both vessels contributed to the severity of the accident, but did not violate any boating laws.
The prosecution then called Wes Dodd, a marine collision investigator, as a rebuttal witness. Dodd reviewed the accident reports and examined the boat and jet ski involved in the accident. Dodd was given the facts surrounding the accident as testified to by other witnesses. Dodd testified that, given the prevailing circumstances, Erickson had been traveling at an excessive rate of speed. He also testified that, given the facts, Erickson should have yielded the right of way to the boat, and that a person of Erickson's size with a blood alcohol content of 0.27 could not react in time to avoid the collision. Dodd reconstructed the accident based on the facts, the damage to the vessels, and the injuries that Erickson and Melissa suffered.
At the conclusion of his direct examination, the prosecutor asked Dodd, "Based upon the hypothetical[] [questions] I have given you and your research, who is at fault in this collision... the personal watercraft or the boat?" Defense counsel objected that the response sought "an opinion [reserved] for the jury." Over defense counsel's objection, Dodd responded that the personal watercraft was at fault based on his investigation and the boating laws that Erickson violated.
B. Analysis
Erickson asserts that the prosecutor improperly questioned Dodd regarding his interpretation of governing statutes, as well as how she had violated the statutes, because the questions were not presented in the form of a hypothetical. Defense counsel, however, never objected on the ground that the prosecutor was not presenting questions in hypothetical form. Even assuming Erickson did not waive this claim by failing to raise it below (Evid. Code, § 353), it lacks merit.
"Within limits, the law permits the examination of an expert witness with hypothetical facts. 'Generally, an expert may render opinion testimony on the basis of facts given "in a hypothetical question that asks the expert to assume their truth." [Citation.] Such a hypothetical question must be rooted in facts shown by the evidence, however.' [Citation.] 'A hypothetical question... may be "framed upon any theory which can be deduced" from any evidence properly admitted at trial, including the assumption of "any facts within the limits of the evidence...."' [Citations.]" (People v. Boyette (2002) 29 Cal.4th 381, 449.)
Generally, hypothetical questions are framed to assume the material facts in evidence and the expert is then asked to express an opinion based upon those assumptions. (See Rosenberg v. Goldstein (1966) 247 Cal.App.2d 25, 30-31.) Here, the prosecutor did not follow this format. Rather, the prosecutor established Dodd's familiarity with the accident and California boating law, and then summarized the facts as shown by the testimony. Immediately after summarizing the facts, and before he started questioning Dodd about the accident, the prosecutor stated, "based upon those facts, I'm going to talk about those facts that you just had that was testified to in here." Throughout his direct examination, the prosecutor provided Dodd with additional facts before questioning him, often asking whether the additional information "mean[t] anything."
The trial court understood that the prosecutor was asking hypothetical questions, telling the prosecutor to "[g]o ahead and finish your hypothetical" after ruling on an objection. Erickson now argues that the prosecutor asked Dodd about his interpretation of the governing statutes as well as how she violated the law, but failed to use hypothetical questions. We reject this argument.
A trial court has great discretion on matters relating to the form of a hypothetical question. (Guardianship of Jacobson (1947) 30 Cal.2d 312, 324.) Here, the evidence already admitted at trial established the facts used in the prosecutor's questions. Additionally, the prosecutor did not ask Dodd to "interpret" any statutes; rather, he properly elicited Dodd's testimony by providing certain facts and asking what those facts meant. Accordingly, we discern no error in the prosecutor's questioning of Dodd.
Erickson also contends that the trial court abused its discretion in allowing Dodd to provide the opinion that she caused the accident by breaking the law, ultimate issues to be decided by the jury. She claims that the error violated her constitutional right to a fair trial and that the beyond a reasonable doubt prejudice standard should apply. (Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).) We disagree.
Expert testimony may be admitted if it will assist the trier of fact to determine a fact in issue or to understand the evidence. (Evid. Code, § 801, subd (a).) The trial court has discretion to determine whether specific opinion testimony passes this test. (People v. Bolin (1998) 18 Cal.4th 297, 321- 322.) So long as opinion testimony is otherwise admissible, it "is not objectionable because it embraces the ultimate issue to be decided by the trier of fact." (Evid. Code, § 805.) However, "[a] bright line cannot be drawn to determine when opinions that encompass the ultimate fact in the case are or are not admissible." (People v. Killebrew (2002) 103 Cal.App.4th 644, 651.)
"There is no hard and fast rule that the expert cannot be asked a question that coincides with the ultimate issue in the case. 'We think the true rule is that admissibility depends on the nature of the issue and the circumstances of the case, there being a large element of judicial discretion involved.... Oftentimes an opinion may be received on a simple ultimate issue, even when it is the sole one, as for example where the issue is the value of an article, or the sanity of a person; because it cannot be further simplified and cannot be fully tried without hearing opinions from those in better position to form them than the jury can be placed in.' [Citations.]" (People v. Wilson (1944) 25 Cal.2d 341, 349.)
Here, for the jury to find Erickson guilty of operating a vessel under the influence of an alcoholic beverage causing injury, the prosecution needed to prove that she operated a vessel while under the influence of alcohol, committed an illegal act or neglected to perform a legal duty, and that her illegal act or failure to perform a legal duty caused bodily injury to another person. (CALCRIM No. 2100.) The question asking Dodd whether the personal watercraft or the boat was "at fault" for the collision based upon his research and the facts cited in the hypothetical questions did not amount to an opinion on Erickson's guilt of the charged crime. Rather, it was an appropriate question for an expert because the answer involved complex issues relating to the speed and position of both vessels, reaction times given the speed and position of the vessels, the impact of alcohol consumption on reaction times, and what the boating rules required under certain circumstances.
Even if we assume the testimony did cross the line and constitute an opinion as to guilt, the error was harmless under any standard. The factual circumstances surrounding the accident, including Erickson's drinking and speed, were essentially uncontradicted. Additionally, the court instructed the jury that it was not required to accept the expert witness's opinion testimony as true or correct, the meaning and importance of the testimony was for the jury to decide, the jury must decide whether the information upon which the expert relied was true and accurate, and the jury was free to disregard any opinion it found to be unbelievable, unreasonable, or unsupported by the evidence. The jury was also instructed that it must decide whether the facts assumed in a hypothetical question had been proven. (CALCRIM No. 332.) Other instructions informed the jury of the applicable boating laws and that it must decide the facts. Under these circumstances the error, if any, was harmless beyond a reasonable doubt. (Chapman, supra, 386 U.S. at p. 24.)
II. Instructions Regarding the Evaluation of Witnesses' Testimony
Without objection, the trial court instructed the jury with CALCRIM Nos. 223 (direct and circumstantial evidence), 226 (witness credibility) and 302 (evaluating conflicting proof). Erickson contends these instructions are ambiguous and lessened the prosecution's burden of establishing her guilt beyond a reasonable doubt. Although she concedes that various appellate courts have upheld these instructions as correct statements of law, she urges that we should reject the reasoning of these courts. (See People v. Smith (2008) 168 Cal.App.4th 7, 18 [addressing CALCRIM No. 223]; People v. Warner (2008) 166 Cal.App.4th 653, 656-659 [addressing CALCRIM No. 226]; People v. Ibarra (2007) 156 Cal.App.4th 1174, 1186-1189, 1190-1191 (Ibarra) [addressing all three instructions]; People v. Campos (2007) 156 Cal.App.4th 1228, 1239-1240 (Campos) [addressing CALCRIM No. 226]; People v. Anderson (2007) 152 Cal.App.4th 919, 929-930, 934-936, 938-940 (Anderson) [addressing all three instructions]; People v. Reyes (2007) 151 Cal.App.4th 1491, 1497 [addressing CALCRIM No. 302].)
Preliminarily, the People argue that defense counsel forfeited these contentions by failing to object to the instructions below. No objection is necessary, however, to preserve a claim that an instruction violated a defendant's substantial rights. (Pen. Code, § 1259; People v. Kelly (2007) 42 Cal.4th 763, 791.) Assuming, without deciding, that the challenged instructions affect Erickson's substantial rights, we turn to the merits of her claims on appeal.
When reviewing a purportedly ambiguous jury instruction, we ask whether there is a reasonable likelihood the jury has applied the challenged instruction in a way that violates the Constitution. (People v. Richardson (2008) 43 Cal.4th 959, 1028.) "A defendant challenging an instruction as being subject to erroneous interpretation by the jury must demonstrate a reasonable likelihood that the jury understood the instruction in the way asserted by the defendant. [Citations.]" (People v. Cross (2008) 45 Cal.4th 58, 67-68.)
In deciding whether jury instructions correctly convey the law, we look to the instructions as a whole to see whether there is a reasonable likelihood the jury misunderstood the instructions. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1248.) An instruction can be found to be ambiguous or misleading only if, in the context of the entire charge, there is a reasonable likelihood that the jury misconstrued or misapplied its words. (People v. Frye (1998) 18 Cal.4th 894, 957, overruled on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) We presume that jurors are intelligent and capable of understanding and correlating all jury instructions given. (People v. Carey (2007) 41 Cal.4th 109, 130.) Applying these principles here, it is clear the challenged instructions are not objectionable.
A. CALCRIM No. 223
CALCRIM No. 223 instructs that facts may be proved by direct or circumstantial evidence or by a combination of both. The instruction provides in part: "Both direct and circumstantial evidence are acceptable types of evidence to prove or disprove the elements of the charge, including intent and mental state and acts necessary to a conviction, and neither is necessarily more reliable than the other. Neither is entitled to any greater weight than the other. You must decide whether a fact in issue has been proved based on all the evidence."
Erickson contends that CALCRIM No. 223 misstates the law because it tells the jury that the defense has a duty to present evidence to disprove a charge. We disagree.
The instruction says nothing about a duty or a burden for either the prosecution or the defense. It merely assists the jury in evaluating both defense and prosecution evidence. "Reasonably read, [CALCRIM No. 223] cautions only that neither direct nor circumstantial evidence should be accorded greater weight simply because it is direct or circumstantial evidence." (Anderson, supra, 152 Cal.App.4th at p. 930.) Moreover, this instruction must be read in conjunction with CALCRIM No. 220, which expressly imposed the burden of proof on the prosecution, stating the defendant "is presumed to be innocent" and "entitled to an acquittal" unless the "evidence proves [her] guilty beyond a reasonable doubt." Read as a whole, and especially in conjunction with CALCRIM No. 220, there was no reasonable likelihood that the jury misinterpreted CALCRIM No. 223 as requiring Erickson to disprove an element of the charges against her.
B. CALCRIM No. 226
CALCRIM No. 226 informs the jury that it must judge the credibility or believability of the witnesses and provides a list of factors for the jury to consider. The instruction states, in part: "In deciding whether testimony is true and accurate, use your common sense and experience. The testimony of each witness must be judged by the same standard. You must set aside any bias or prejudice you may have.... You may believe all, part, or none of any witness's testimony. Consider the testimony of each witness and decide how much of it you believe. [¶] In evaluating a witness's testimony, you may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony."
Erickson asserts that CALCRIM No. 226 is defective because it insinuates to the jury that a defendant is required to disprove some element of the charged offense. We do not believe the jury would interpret the instruction as Erickson suggests.
The instruction is based on Evidence Code section 780, which enumerates similar factors in assessing witness credibility. (See also People v. Rincon-Pineda (1975) 14 Cal.3d 864, 883-884 [court has sua sponte duty to instruct on factors affecting witness's credibility].) CALCRIM No. 226 advises the jurors how to assess witness credibility, and other courts have concluded that the instruction accurately states the law. (Campos, supra, 156 Cal.App.4th at p. 1240; Ibarra, supra, 156 Cal.App.4th at p. 1188; Anderson, supra, 152 Cal.App.4th at pp. 934-936.) The instruction does not mention the burden of proof. In addition, CALCRIM No. 220 makes it clear that the prosecution has the burden of proof.
C. CALCRIM No. 302
CALCRIM No. 302 reads: "If you determine there is a conflict in the evidence, you must decide what evidence, if any, to believe. Do not simply count the number of witnesses who agree or disagree on a point and accept the testimony of the greater number of witnesses. On the other hand, do not disregard the testimony of the greater number of witnesses, or any witness, without a reason or because of prejudice or a desire to favor one side or the other. What is important is whether the testimony or any other evidence convinces you, not just the number of witnesses who testify about a certain point."
Erickson contends that CALCRIM No. 302 contains several misstatements of law. She asserts that the instruction insinuates that the defense is held to a standard of proof that requires a jury to "believe" defense evidence in order to acquit. She claims that the instruction also directs the jury to choose between the government's witnesses and the defense witnesses, preventing a juror from resolving a factual scenario by combining parts of the defense and prosecution evidence. Not so.
The instruction applies only when there is a conflict in the evidence. If a conflict exists, jurors "must decide what evidence, if any, to believe." (CALCRIM No. 302.) "The instruction says nothing about choosing between prosecution and defense witnesses. It merely states the common sense notion that the number of witnesses who have given testimony on a particular point is not the test for the truth of that point. It does no more. The jury remains free to choose the witness or witnesses it believes and what part of a witness's testimony it finds believable." (Anderson, supra, 152 Cal.App.4th at p. 940; accord, Ibarra, supra, 156 Cal.App.4th at p. 1191.) Clearly, a juror has the option to disbelieve any part of the evidence presented by either party. CALCRIM No. 302 does not address the burden of proof, and CALCRIM No. 220 informed the jury that a criminal defendant is presumed innocent and the prosecution has the burden of proof.
Erickson argues that CALCRIM No. 302 instructs the jury not to disregard the testimony of a witness "without a reason." She asserts that the instruction creates a presumption that all witnesses are deemed to be truthful, unless a juror has some reason to conclude otherwise, and that this presumption undermines the presumption of innocence. She also asserts that the instruction improperly implies that the disbelief of defense witnesses necessarily means the prosecution's witnesses are believable.
These arguments ignore the plain language of the instruction that jurors "must decide what evidence, if any, to believe." (CALCRIM No. 302, italics added.) CALCRIM No. 226 also instructed the jury that it must decide the credibility of witnesses. As the Anderson court explained, this instruction "does not create a presumption of credibility. It merely cautions the jurors not to disregard testimony on a whim." (Anderson, supra, 152 Cal.App.4th at p. 939; accord, Ibarra, supra, 156 Cal.App.4th at p. 1190.)
Erickson also asserts that the portion of the instruction telling the jury not to "favor one side over the other" conflicts with the presumption of innocence. We disagree. This language is impartial and does not impact the presumption of innocence. (Ibarra, supra, 156 Cal.App.4th at p. 1191; Anderson, supra, 152 Cal.App.4th at p. 939.)
Finally, Erickson claims that the instruction improperly informed the jury that "[w]hat is important is whether the testimony or any other evidence convinces you, not just the number of witnesses who testify about a certain point." (CALCRIM No. 302.) She contends that the convincing force of the evidence is the proper criterion for jurors to consider. We agree. In fact, this is precisely what CALCRIM No. 302 instructs, admonishing the jury not to "simply count the number of witnesses who agree or disagree on a point and accept the testimony of the greater number of witnesses" and that "[w]hat is important is whether the testimony or any other evidence convinces you."
In sum, we conclude there is no reasonable likelihood that the jury misinterpreted CALCRIM Nos. 223, 226 and 302 in a way that reduced the prosecution's burden.
III. Failure to Instruction on Misdemeanor Offenses
Erickson was charged and convicted of feloniously operating a vessel under the influence of an alcoholic beverage causing injury in violation of section 655, subdivision (f) of the Harbors and Navigation Code (section 655(f)). (Undesignated statutory references are to the Harbors and Navigation Code.) Section 655(f) is a "wobbler" because it can be prosecuted as either a felony or a misdemeanor. (§ 668, subd. (g); Pen. Code, § 17, subd. (b).)
Erickson contends the trial court had a sua sponte duty to instruct on the misdemeanor violation of section 655(f). Erickson asserts that she should not have been subjected to an "all or nothing situation" and that the jury could have determined that her conduct was not felonious. We disagree.
Prosecuting authorities ordinarily have the sole discretion to determine whom to charge with public offenses and what charges to bring. (People v. Birks (1998) 19 Cal.4th 108, 134.) Here, the prosecution charged Erickson's alleged violation of section 655(f) as a felony. The court then instructed the jury on the elements of the crime, but did not state whether the offense was a felony or misdemeanor. (CALCRIM No. 2100.)
Although Erickson contends that misdemeanor violation of section 665(f) is a lesser included offense of felonious violation of section 665(f), she provided no authority for this assertion. Both offenses prohibit the same conduct; the only difference is the degree of punishment they carry. The issue of whether Erickson's conduct should be deemed a misdemeanor or felony is thus a sentencing issue, not one of substantive guilt. (People v. Morse (1992) 2 Cal.App.4th 620, 647 [a wobbler is considered a felony for all purposes until it is reduced to a misdemeanor at the time of judgment].) Accordingly, it would have been inappropriate to instruct the jury on the misdemeanor violation of section 655(f).
Erickson also contends the trial court had a sua sponte duty to instruct on the violation of subdivisions (b) and (c) of section 655, as lesser included offenses to a felonious violation of section 655(f). Although Erickson concedes that these offenses were time barred, she asserts that had the trial court instructed on these offenses, that in effect, she would have been deemed to have waived the statute of limitations issue.
Any conduct violating subdivisions (b) and (c) of section 655 is a misdemeanor. (§ 668, subd. (e).) Assuming, without deciding, that a violation of each of these subdivisions is a lesser included offense to a felonious violation of section 655(f), the trial court had no sua sponte duty to instruct on lesser included offenses barred by the statute of limitations. (Cowan v. Superior Court (1996) 14 Cal.4th 367, 376; People v. Diedrich (1982) 31 Cal.3d 263, 283.) Erickson needed to expressly and voluntarily waive the statute of limitations defense on the lesser included offenses and ask the trial court to instruct on them. (Cowan, at pp. 373, 376-377.) She failed to do so.
IV. Denial of Probation
Erickson contends the trial court abused its discretion in denying her probation because it permitted the facts of the case to impact it on an emotional level as evidenced by the court referencing its own 17-year-old daughter during sentencing. We do not agree.
Probation is an act of clemency, not a matter of right. (People v. Wardlow (1991) 227 Cal.App.3d 360, 365.) Under the determinate sentencing law, the trial court's decision to grant or deny probation is to be guided by criteria concerning the offense and the offender, such as those laid out in rule 4.414 of the California Rules of Court. (See Pen. Code, § 1203, subds. (b)(1), (b)(3).) These factors include the seriousness of this crime as compared to other instances of the same offense, the degree of defendant's culpability as an active or passive participant, the vulnerability of the victim, whether the defendant inflicted emotional or physical injury, the defendant's prior criminal record, and the defendant's remorse and willingness to comply with probation. (Cal. Rules of Court, rule 4.414(a) & (b).)
The trial court has broad discretion to grant or deny probation and we will not set aside a decision to deny probation absent a clear showing that the trial court abused its discretion. (People v. Warner (1978) 20 Cal.3d 678, 683.) Discretion, as defined in the pertinent case law, is "'controlled by sound principles of law,... free from partiality, not swayed by sympathy or warped by prejudice....' [Citation.]" (People v. Bolton (1979) 23 Cal.3d 208, 216.) A court abuses its discretion when its order "exceeds the bounds of reason, all of the circumstances being considered." (People v. Giminez (1975) 14 Cal.3d 68, 72.) The burden is on the defendant to clearly show that the denial of probation was irrational or arbitrary. (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831.)
Before sentencing Erickson the court properly considered the facts of the offense, the probation officer's report, letters or statements from individuals both for and against Erickson, and the arguments of counsel. The court commented that Erickson was a "wonderful person with a clean record," but that her actions on the day of the accident prohibited probation. The court noted that someone was killed because Erickson was speeding while intoxicated, and remarked that "[s]ooner or later [her] drinking and [her] actions were going to cause injury to [Erickson], or someone else."
While noting that teenagers are just learning to exercise judgment, the court mentioned that it had a daughter and "hope[d] that I'm not letting that affect the sentencing. She has a pretty good head on her shoulders. She's in Santa Barbara at the university there. But, my God, you know, the judgment that these kids have and don't have, what they do and don't do. And she's not with us anymore, Melissa. And I sense your profound regret that she's not. But I see this refusal on your part to accept the responsibility that you had in her death."
We do not consider the trial court's off-the-cuff reference to its own daughter as evidence that it improperly denied probation based on its emotions. Rather, the court simply expressed the point that Melissa made a poor decision to be Erickson's passenger on the jet ski, and that this decision, along with the fault of others, contributed to the tragic consequences. The record reflects that the trial court made a reasoned decision to deny probation based on the appropriate criteria, and did not abuse its discretion.
DISPOSITION
The judgment is affirmed.
WE CONCUR: NARES, Acting P. J., McDONALD, J.