Opinion
F076593
05-01-2020
THE PEOPLE, Plaintiff and Respondent, v. BIANCA ELISABETH FRANCO, Defendant and Appellant.
William W. Lee, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and F. Matt Chen, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BF161573A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Gary T. Friedman, Judge. William W. Lee, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and F. Matt Chen, Deputy Attorneys General, for Plaintiff and Respondent.
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Bianca Elisabeth Franco (defendant) stands convicted, following a jury trial, of driving under the influence (DUI) of an alcoholic beverage and causing bodily injury to another person (Veh. Code, § 23153, subd. (a); count 1) and driving with a blood-alcohol level of 0.08 percent or more and causing bodily injury to another person (id., § 23153, subd. (b); count 2). As to each count, the jury found defendant inflicted great bodily injury (GBI) on a person 70 years of age or older (Pen. Code, § 12022.7, subd. (c)), and had an excessive blood-alcohol concentration of 0.15 percent or more (Veh. Code, § 23578). Following a bifurcated court trial, defendant was found to have suffered a prior DUI conviction. (Veh. Code, § 23540.) She was sentenced to seven years in prison and ordered to pay restitution, as well as various fees, fines, and assessments.
Further statutory references are to the Penal Code unless otherwise stated.
On appeal, we hold: (1) The trial court did not abuse its discretion by permitting the nontestifying victim to be brought into the courtroom for jury viewing; (2) Any error in the trial court's refusal to give defendant's requested pinpoint instruction was harmless; and (3) Defendant is not entitled to reversal based on cumulative prejudice. Accordingly, we affirm.
FACTS
James K. testified at trial that on the evening of March 1, 2015, he drove out of a parking lot west of Calloway Drive, in Bakersfield, and turned westbound into the number 2 (slow) lane of Rosedale Highway. A short distance later, when he had reached a speed of five to 10 miles per hour, a Volvo driven by defendant passed him in the left lane, also heading west. The car went past him at 55 to 60 miles per hour, fast enough to cause his vehicle to shake. No more than 100 to 150 yards ahead, a Lexus driven by Linda P. pulled out from a parking lot or side street without stopping and merged immediately into the left-hand lane of the highway, heading west at about five to 10 miles per hour. A collision then happened "really fast." James saw brake lights on the car driven by defendant and that car tried to swerve, but it was too late. The front driver's side of that vehicle struck the rear passenger side of the vehicle driven by Linda.
Pursuant to California Rules of Court, rule 8.90, we refer to certain persons by their first names. No disrespect is intended.
Unspecified references to dates in the statement of facts are to the year 2015.
James immediately stopped to see if he could help. He first went to the Lexus car, which was in the center divider. Linda was unresponsive to his calls. He did not see her wearing a seatbelt, and her body was no longer in the driver's seat but instead was toward the rear passenger side of the car. Her head was bleeding profusely. James then went to defendant's car, which was on the side of the road by some palm trees. Defendant, who was wearing a seatbelt, was slightly moving around and seemed dazed. The vehicle's airbags had deployed. Defendant was able to get out of the car. James could smell alcohol on her.
Bakersfield Police Officer Herron arrived on scene at 6:29 p.m., about five minutes after he was dispatched. He first approached Linda's car. Linda was partially in the driver's seat and partially in the backseat, which had been pushed closer to the front seat due to structural damage to the car. She appeared to have been thrown backward from her position in the driver's seat when the backrest of that seat failed. When Herron asked if she was injured, she said she was not. She was unaware she was involved in a collision. A copious amount of blood was coming from the back of her head. Herron applied pressure to the area until fire and ambulance personnel arrived.
Bakersfield Police Officer Childers was dispatched to the scene at 6:23 p.m. and arrived within minutes. He contacted defendant, who was still in the driver's seat of the Volvo. She was alert and said she did not need medical aid, so Childers assisted her out of the vehicle to a seated position on the curb next to the car. He noticed there was an odor of alcoholic beverage emitting from her breath and the vehicle. Her speech was slurred and her eyes were red and watery.
Based on Childers's training and experience, both conditions were consistent with someone who might be impaired. Accordingly, he decided to conduct a DUI evaluation. When he questioned defendant, she seemed lucid and answered appropriately. When asked what she had been drinking, she said beer. She did not answer when asked the time of her last drink, but said she last ate at 6:00 p.m. She complained of pain to one of her legs. When fire personnel arrived, it was discovered that she had what appeared to be a minor to moderate laceration to the back of her head. Her results on the horizontal gaze nystagmus test were consistent with someone impaired with alcohol, although a head injury can affect nystagmus. A preliminary alcohol screening (Breathalyzer) test conducted at 6:45 p.m. returned a blood-alcohol reading of .19 percent. At that point, Childers arrested defendant. Based on the collision itself and James's statement, Childers formed the opinion defendant could not safely operate a motor vehicle.
At some point, Childers spoke with James, who said he observed defendant's vehicle traveling at approximately 80 miles per hour and swerving before the collision.
Defendant was transported to Kern Medical Center, where her blood was drawn at 8:20 p.m. Subsequent laboratory analysis showed her blood-alcohol content to be .217 percent.
Childers interviewed defendant simultaneously with the blood draw. Defendant related that at the time of the collision, she was coming from a sports bar. She denied drinking any alcohol there, but said she had had one Bloody Mary at her sister's bridal shower prior to arriving at the sports bar. She denied drinking anything else. Defendant said she was driving at the speed limit, which was 50 miles per hour. Traffic was light, and she did not see the car with which she collided until the last second. It was stopped. Defendant related that she was in the left lane, and the other car was in the middle lane. She did not know why she was unable to pass the other vehicle and instead hit the back of it. The other car just "came out of nowhere." Defendant then related that almost everyone was drinking at the bridal shower. She denied drinking there, but admitted having one small beer at the sports bar, after she left the bridal shower.
An audio recording of the interview was played for the jury.
Meanwhile, Herron investigated the collision. At the time it occurred, it was getting dark. The night was cloudy, but the roadway was dry. The speed limit was 50 miles per hour. From the damage to the Lexus, it appeared to be a square-on rear impact.
Herron took a statement from James, who related that he was traveling in the number 2 westbound lane on Rosedale Highway, just west of Calloway, at 40 to 50 miles per hour, when the Volvo passed him at such a speed and so close that it nearly side-swiped him and caused his vehicle to shake. James estimated the Volvo was traveling over 80 miles per hour. James stated his belief that the Lexus entered the roadway in a safe manner and at the right speed, and that if the vehicles were traveling at safe speeds, the Lexus would not have interfered with any traffic. James related that he watched the Volvo approach the Lexus, and that the Volvo did not make any kind of maneuver to avoid a collision. He said he did not see brake lights until just before the collision occurred.
At trial, James explained that the next day, he returned to the parking lot, where he replayed the incident in his mind and timed it. Within a week, he contacted the police department to give a "semi-different" statement than he gave Herron. At trial, he attributed his original estimate of the vehicle speeds to the adrenalin of the situation and the fact everything happened very fast.
At the time of the collision, James did not know either driver of the vehicles involved. Afterward, however, he reached out to defendant by telephone. They ultimately had numerous conversations by text message and telephone calls. James denied that they talked about his testimony or that defendant asked him to change his statement.
Based on his investigation, Herron determined that the primary collision factor was DUI, with unsafe speed as an associated factor. The DUI and unsafe speed both were associated with the Volvo.
Bakersfield Police Detective Berchtold, a collision reconstruction expert, concluded the Lexus's precollision speed was 19 to 28 miles per hour, while the Volvo's precollision speed was 71 to 93 miles per hour. Based on the damage to the vehicles and other factors, Berchtold opined the minimum speed of the Volvo was 85 miles per hour. In Berchtold's opinion, it was "[n]ot possible" the Volvo was going about 50 or 60 miles per hour. Assuming no obstacles such as other vehicles in the slow lane, defendant would have been able to see the Lexus turning onto the highway from about 623 feet away, five seconds before impact. It took a significant impact and very high rate of speed to create the amount of damage done to the Lexus. The impact of the collision was "[e]xtremely high."
In part, the rear axle of the Lexus was twisted, the roof was buckled, and the trunk of the vehicle was essentially gone, in that it was pushed into the vehicle's interior.
Linda was admitted to the Intensive Care Unit of Kern Medical Center on the evening of March 1. She remained there for the 10-day duration of her hospitalization. When Dr. Pakula, a trauma surgeon who oversaw all of her care, first saw her, Linda was on a ventilator to protect her airway and breathe for her, and was not fully conscious or able to speak. She had sustained a significant amount of blood loss, secondary to a 15-centimeter-long scalp laceration in the back portion of the skull. She had a traumatic brain injury — bruising on the brain — to the frontal portion of the brain. She had multiple skull fractures. She also had a fractured upper arm bone and a fractured sternum (breastbone).
On March 4, Linda suffered a stroke as a result of her injuries. During her time in the hospital, she never completely returned to a conscious level. Because she required long term ventilatory support, a tracheostomy was performed. In addition, a feeding tube was placed directly into her stomach.
Upon her discharge later that month, Linda was transferred to a long-term acute care facility. As of the time of trial, she resided in an assisted living facility for the elderly. Prior to the collision, she was completely independent and active. As of the time of trial, she was nonverbal, except for the words yes, no, and okay. She was paralyzed on one side. She was unable to communicate her wants or needs, and could not do anything for herself except sometimes get a spoon to her mouth or pick up a glass. She was wheelchair bound and required the assistance of another human being to do every function of her day. She was never going to recover.
Linda was almost 73 years old on the date of the collision.
DISCUSSION
I
ALLOWING VICTIM TO BE BROUGHT INTO COURTROOM DURING TRIAL
Defendant contends the trial court prejudicially erred by allowing Linda, who was not testifying, to be brought into the courtroom so the jury could see her. We find no abuse of discretion. A. Background
Defense counsel moved, in limine, for the court to exclude photographs of, and testimony concerning, Linda's current condition under Evidence Code section 352. Defendant asserted that such evidence was not necessary for the People to establish the GBI enhancement; hence, it lacked probative value and its only purpose would be to inflame the jury against defendant and garner sympathy for Linda. Counsel observed that she had offered to stipulate to GBI, which the People had refused to do, and she stated she was not questioning the extent of Linda's injuries. She argued, however, that the prosecutor could prove GBI through testimony of the physician who treated Linda at Kern Medical Center.
The People, in contrast, listed Linda on their witness list. The prosecutor represented that Linda was not competent to testify, but argued jurors had a right to see her in her condition, because they had to make the factual determination of what was significant or substantial harm. The prosecutor analogized the situation to showing an autopsy photograph of a deceased victim.
The court asked to see a photograph of Linda contemporaneous to the time of trial, to make sure her appearance would not unduly inflame the jury. After further discussion about the requirements of section 12022.7, Linda's condition, and the logistics of bringing her into court, the trial court tentatively ruled she could be brought briefly to the entrance of the courtroom.
The next day, defense counsel filed a motion in limine to preclude the prosecutor from calling Linda as a witness. The motion reiterated the defense's argument that the sole purpose of bringing Linda into court was to inflame the jury and play on jurors' sympathy. In addition, defense counsel claimed Linda would, in essence, be called as a witness to give a statement; since she was unable to speak, the defense would be unable to cross-examine her; and, as a result, defendant's Sixth Amendment right to confront witnesses would be violated.
The prosecutor responded that Linda would not be making any statements, and so would not be a witness, but she had a right to be present and to have the jury see her. The prosecutor argued excluding her would be prejudicial to the People and a violation of the state Constitution, and asserted the People were not required to rely solely on verbal descriptions to prove their case.
The court found that as long as steps were taken to ensure Linda's presence did not show her in an unnatural current state and was not prolonged, the probative value outweighed any prejudicial impact. The court requested that the prosecutor conduct a "dry run" outside the presence of any jurors, however, to see how Linda handled the situation.
The day before the prosecutor planned to have Linda brought into the courtroom in the jury's presence, the prosecutor assured the court that Linda's family members said she was fine to come. The court confirmed with the prosecutor that the family members wanted Linda to be there, and that through them, apparently, Linda wanted to be present. The next day, during the testimony of the registered nurse who owned and ran the facility at which Linda resided at the time of trial, Linda was brought into the courtroom and identified by the witness. The witness testified that how she appeared then was how the witness saw her on a daily basis. Linda was then taken back out. B. Analysis
A victim of a crime has a state constitutional and statutory right to be present at trial, unless the defendant demonstrates a substantial probability that his or her right to a fair trial will be prejudiced by the victim's presence. (Cal. Const., art. I, § 28, subd. (b)(7); § 1102.6, subds. (a) & (b)(1)(A).) A trial court's ruling on a motion to permit the presence of a victim is reviewed for abuse of discretion. (People v. Griffin (2004) 33 Cal.4th 536, 574, disapproved on another ground in People v. Riccardi (2012) 54 Cal.4th 758, 824, fn. 32.)
Here, the prosecutor sought to have Linda briefly present as, in essence, demonstrative evidence. Whether to admit demonstrative evidence for the purpose of illustrating and clarifying a witness's testimony is a matter within the trial court's discretion. (People v. Duenas (2012) 55 Cal.4th 1, 21; People v. Ham (1970) 7 Cal.App.3d 768, 780, disapproved on another ground in People v. Compton (1971) 6 Cal.3d 55, 60, fn. 3.) Under Evidence Code section 352, "the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. [Citation.] Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion 'must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]' [Citation.]" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)
In reviewing a trial court's ruling under Evidence Code section 352, we look to see whether that ruling fell within the trial court's discretion at the time it was made. (See People v. Dalton (2019) 7 Cal.5th 166, 231.) Unless the dangers of undue prejudice, confusion, or consumption of time substantially outweighed probative value, the objection was properly overruled. (People v. Cudjo (1993) 6 Cal.4th 585, 609.) For purposes of Evidence Code section 352, " 'prejudice' does not mean damage to a party's case that flows from relevant, probative evidence. Rather, it means the tendency of evidence to evoke an emotional bias against a party because of extraneous factors unrelated to the issues. [Citation.] Thus, evidence is subject to exclusion under Evidence Code section 352 on the basis of prejudice only ' "when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors' emotional reaction. In such a circumstance, the evidence is unduly prejudicial because of the substantial likelihood the jury will use it for an illegitimate purpose." [Citation.]' [Citation.]" (People v. Cortez (2016) 63 Cal.4th 101, 128-129.)
We find no abuse of discretion here.
"Great bodily injury is bodily injury which is significant or substantial, not insignificant, trivial or moderate. [Citations.]" (People v. Armstrong (1992) 8 Cal.App.4th 1060, 1066; accord, e.g., People v. Cross (2008) 45 Cal.4th 58, 63-64; People v. Escobar (1992) 3 Cal.4th 740, 749-750; see § 12022.7, subd. (f).) To be significant, however, "the injury need not be so grave as to cause the victim permanent, prolonged or protracted bodily damage. [Citation.]" (People v. Cardenas (2015) 239 Cal.App.4th 220, 227.)
"Whether a victim has suffered great bodily injury is for the jury to decide. [Citation.]" (People v. Cardenas, supra, 239 Cal.App.4th at p. 227.) Even though the injury need not be permanent or prolonged in order to constitute GBI, we cannot say evidence the damage is indeed protracted and extensive is irrelevant to the jury's determination. " 'The jury can, and must, be shielded from depictions that sensationalize an alleged crime, or are unnecessarily gruesome, but the jury cannot be shielded from an accurate depiction of the charged crimes that does not unnecessarily play upon the emotions of the jurors.' [Citation.]" (People v. Watson (2008) 43 Cal.4th 652, 684, italics added.)
The trial court did not act irrationally in concluding, expressly or impliedly, that seeing Linda in person would have substantial probative value as illustrating and confirming the testimony of her caregiver, and that Linda's condition at the time of trial was probative on the issue of whether she suffered GBI. (See People v. Zambrano (2007) 41 Cal.4th 1082, 1137-1138, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) The fact testimony was presented concerning her injuries and her condition at the time of trial, and defense counsel offered to stipulate that she suffered GBI, did not mean Linda herself had to be excluded as unduly cumulative. (See People v. Crittenden (1994) 9 Cal.4th 83, 134-135.) "The general rule is that the prosecution in a criminal case cannot be compelled to accept a stipulation if the effect would be to deprive the state's case of its persuasiveness and forcefulness. [Citations.]" (People v. Edelbacher (1989) 47 Cal.3d 983, 1007, abrogated on another ground in People v. Loyd (2002) 27 Cal.4th 997, 1007, fn. 12.) "[T]he People . . . were not required to withhold evidence of the full extent of [Linda's] injuries once a minimum threshold necessary to prove the GBI allegation had been passed. The prosecution need not sap the force of its case by presenting only the most antiseptic evidence, even in the face of a defense offer to stipulate. [Citations.]" (People v. Zambrano, supra, 41 Cal.4th at p. 1138.)
The trial court took care to ensure that Linda's condition was not unduly upsetting to jurors and did not inflame their passions to defendant's detriment, by keeping the jury's view of Linda brief and inquiring, before she was placed before the jury, into such matters as whether she was on a gurney or in a wheelchair and the state of some of her bodily functions. Viewing Linda was not "uniquely inflammatory without regard to relevance," and so was not unduly prejudicial within the meaning of Evidence Code section 352. (People v. Zambrano, supra, 41 Cal.4th at p. 1138; cf. People v. Love (1960) 53 Cal.2d 843, 854-857.)
Our research has disclosed two cases that we find particularly instructive.
In People v. Marks (2003) 31 Cal.4th 197, the defendant was convicted of, inter alia, premeditated attempted murder with a GBI enhancement. During trial, the People offered into evidence a videotape depicting a typical day in the victim's life. The defendant argued the tape did not show GBI but rather the results of GBI, and he offered to stipulate that the victim suffered the requisite injury. The trial court overruled the objection, and the video was played for the jury. (Id. at pp. 225-226.) The California Supreme Court concluded the trial court correctly allowed the People to decline the stipulation offer, and it agreed with the trial court's rejection of any distinction between an injury and the result of that injury. (Id. at p. 226.) It also endorsed the People's observation that there would have been no bar to presenting the victim as a live witness. (Ibid.)
In People v. Morgan (1987) 191 Cal.App.3d 29, the defendant was charged with rape and assault with intent to commit rape. The victim was mentally disabled, and the prosecutor had to prove the defendant knew or should have known she was incapable of giving legal consent to sexual behavior. The prosecutor acknowledged the victim would be unable to qualify to testify, but sought to place her before the jury and ask her some basic questions, so jurors could observe her behavior and demeanor. Over defendant's Evidence Code section 352 objection, the trial court permitted the demonstration, despite the fact the prosecutor had already presented the testimony of a psychologist who evaluated the victim and testified concerning her mental condition and lack of capacity to consent. (Morgan, supra, at pp. 33-36.) On appeal, we found no abuse of discretion. (Id. at p. 40.) We noted the victim's appearance in court was brief (id. at p. 39), and stated: "As to relevancy and probative value, she was obviously the most compelling evidence on the issue of whether or not she was capable of giving consent to sexual intercourse. With respect to the 'danger of undue prejudice,' it was unlikely [the victim's] responses to [the] questions or conduct led the jury astray and caused them to convict an innocent man." (Id. at p. 40.)
The trial court here did not abuse its discretion by permitting Linda to be brought into the courtroom so the jury could view her condition.
II
REFUSAL OF PINPOINT INSTRUCTION
Defendant contends the trial court erred by refusing to give her requested pinpoint instruction regarding personal infliction of GBI, thus necessitating reversal of the section 12022.7, subdivision (c) enhancement. We conclude that if error occurred, it was harmless. A. Background
During the jury instruction conference, it was determined the court would instruct in the language of CALCRIM Nos. 2100 (Driving a Vehicle or Operating a Vessel Under the Influence Causing Injury) and 2101 (Driving With 0.08 Percent Blood Alcohol Causing Injury) with respect to the charged substantive offenses. At defense counsel's request, the trial court agreed to include optional paragraphs concerning causation.
With respect to the GBI allegation, it was determined the court would give CALCRIM No. 3162 (Great Bodily Injury: Age of Victim). Defense counsel requested the court also give a special instruction regarding the enhancement. The proposed instruction read: "The defendant must directly cause an injury, not just proximately cause it. [¶] Proximately causing an injury does not equal personally inflicting an injury." When the court stated there was an instruction on proximate cause that it would rather use, defense counsel explained that the injury required for the substantive offenses differed from the extent of the injury required for the enhancement, in addition to which the enhancement required personal infliction. Thus, counsel argued, the enhancement required that the defendant must directly cause an injury, not just proximately cause it. The prosecutor responded that defendant personally inflicted GBI by the use of her car, and whether Linda was contributorily negligent was irrelevant. After further argument, the court denied the request to give the special instruction.
In her opening summation, the prosecutor argued to the jury that the causation requirement was met with respect to the substantive offenses, because Linda would not have been hit and hurt had defendant not had such a high level of blood alcohol and been going as fast as she was. The prosecutor explained that the enhancement was "a little bit different," and required personal infliction of GBI. The prosecutor told jurors this did not mean defendant got out of her car and beat Linda. Rather, there was the volitional act of driving the car and speeding, which was the direct cause of the collision and, therefore, a direct cause of the injuries.
In her summation, defense counsel explained that for the substantive offenses, any injury sufficed, no personal infliction was necessary, and proximate cause was sufficient. For the GBI enhancement, on the other hand, the injury had to be greater than minor or moderate, and defendant had to personally inflict injury and not just proximately cause it. Counsel conceded Linda suffered injuries that were more than minor or moderate, but argued there was a question whether defendant personally inflicted the injuries. Counsel argued defendant did not ram her car into Linda's vehicle because they had a feud or even knew each other, and that defendant had no motive to get into the accident. Counsel told the jury that not having a motive could be a factor tending to show a defendant was not guilty.
In her closing argument, the prosecutor asked who, if not defendant, inflicted the injuries on Linda. The prosecutor argued defendant personally inflicted the injuries because she, and not someone else, drove her car and struck Linda. The prosecutor explained that personal infliction was required for the enhancement, because the law did not provide for an enhancement for an aider and abettor or where a third person was involved. The prosecutor pointed out there was no third party involved in this case, and she urged jurors to use their common sense.
With respect to count 1, the trial court subsequently instructed, in pertinent part:
"An act causes bodily injury to another person if the injury is the direct, natural, and probable consequence of the act and the injury would not have happened without the act.The court instructed in virtually identical language with respect to count 2. With respect to the GBI enhancement, the court instructed, in part:
"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 the circumstances established by the evidence.
"There may be more than one cause of injury. An act causes bodily injury to another person only if it is a substantial factor in causing the injury.
"A substantial factor is more than trivial or remote factor. However, it need not be the only factor that causes the injury."
"To prove this allegation, the People must prove that:
"One, the defendant personally inflicted great bodily injury on [Linda] during the commission of the crime;
"And two, at the time of the crime, [Linda] was 70 years of age or older.
"Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm."
During deliberations, the jury asked for a readback of portions of several witnesses' testimony. It also asked for a definition of "personally inflicted" in regard to section 12022.7, subdivision (c). In response to the latter request, the court reread a portion of CALCRIM No. 200, which told jurors that some words or phrases used during trial had legal meanings that were different from the meanings in everyday use, and that jurors were to follow those definitions as given in the instructions. Words and phrases not specifically defined were to be applied using their ordinary, everyday meanings. B. Analysis
"A trial court must instruct the jury, even without a request, on all general principles of law that are ' "closely and openly connected to the facts and that are necessary for the jury's understanding of the case." [Citation.] In addition, "a defendant has a right to an instruction that pinpoints the theory of the defense . . . ." ' [Citation.] The court may, however, 'properly refuse an instruction offered by the defendant if it incorrectly states the law, is argumentative, duplicative, or potentially confusing [citation], or if it is not supported by substantial evidence [citation].' [Citation.]" (People v. Burney (2009) 47 Cal.4th 203, 246.)
A requested instruction is supported by substantial evidence if the supporting evidence is sufficient to deserve jury consideration. (People v. Marshall (1997) 15 Cal.4th 1, 39-40.) "[S]uch evidence is that from which a jury composed of reasonable persons could have concluded that the particular facts underlying the instruction did exist. [Citations.] In evaluating the evidence to determine whether a requested instruction should be given, the trial court should not measure its substantiality by weighing the credibility of the witnesses, as that task is exclusively for the jury. If the evidence is 'minimal and insubstantial,' however, the court need not instruct on its effect. [Citation.] Doubts as to the sufficiency of the evidence to warrant instructions should be resolved in favor of the accused. [Citation.]" (People v. Duckett (1984) 162 Cal.App.3d 1115, 1124-1125.)
Defendant's requested instruction was potentially confusing because, although the concept of proximate cause was explained in CALCRIM Nos. 2100 and 2101, as given to the jury, nowhere was the term itself used. More importantly, although the requested instruction correctly stated the law (People v. Bland (2002) 28 Cal.4th 313, 336; People v. Guzman (2000) 77 Cal.App.4th 761, 764; People v. Rodriguez (1999) 69 Cal.App.4th 341, 347), we strongly question whether it was supported by substantial evidence, i.e., whether there was evidence from which a jury composed of reasonable persons could have concluded defendant proximately caused, but did not personally inflict, GBI. If such evidence was lacking, the requested instruction "was 'an "abstract" instruction, i.e., "one which is correct in law but irrelevant." ' [Citations.] Giving an instruction that is correct as to the law but irrelevant or inapplicable is error. [Citation.]" (People v. Cross, supra, 45 Cal.4th at p. 67.)
In order for a defendant to be subject to an enhancement pursuant to section 12022.7, he or she must have "personally inflict[ed]" GBI. (§ 12022.7, subds. (a)-(e).) "[T]he meaning of the statutory requirement that the defendant personally inflict the injury does not differ from its nonlegal meaning. Commonly understood, the phrase 'personally inflicts' means that someone 'in person' [citation], that is, directly and not through an intermediary, 'cause[s] something (damaging or painful) to be endured' [citation]." (People v. Cross, supra, 45 Cal.4th at p. 68; accord, People v. Cardenas, supra, 239 Cal.App.4th at pp. 227-228.) The forbidden intermediary must be another person, since "the individual accused of inflicting great bodily injury must be the person who directly acted to cause the injury." (People v. Cole (1982) 31 Cal.3d 568, 572.) It is no defense, however, that the defendant used an instrumentality, such as a vehicle, a firearm, or even an animal, to inflict the harm. (See People v. Frazier (2009) 173 Cal.App.4th 613, 618.)
"To 'personally inflict' injury, the actor must do more than take some direct action which proximately causes injury. The defendant must directly, personally, himself inflict the injury." (People v. Rodriguez, supra, 69 Cal.App.4th at p. 349.) Here, defendant drove while intoxicated and exceeded the speed limit. "This volitional act was the direct cause of the collision and therefore was the direct cause of the injury. [Defendant] was not merely an accomplice. Thus, [defendant] personally inflicted the injury on [Linda]. Further, the accidental nature of the injuries suffered does not affect this analysis." (People v. Guzman, supra, 77 Cal.App.4th at p. 764.)
Assuming the jury gave no credence to the collision reconstruction expert's testimony and instead believed James's revised estimate of defendant's speed, defendant still exceeded the 50-miles-per-hour speed limit. Had the jury not found defendant drove at an unsafe speed in violation of Vehicle Code section 22350, they would have acquitted her of both counts and never reached the issue of the GBI enhancement, since the instructions on the substantive offenses required them to find, beyond a reasonable doubt, that defendant committed an illegal act, to wit, driving at an unsafe speed.
Defendant argues a reasonable jury could have concluded her intoxication proximately caused her inability to avoid the collision, and thus the accident and its attendant injuries; but, because defendant performed no volitional act that initiated the collision, a reasonable jury could further conclude defendant's conduct did not constitute personal infliction. We are not persuaded. Even assuming Linda pulled directly into the fast lane, "the fact that the collision involved two vehicles does not absolve [defendant] of direct responsibility for [Linda's] injuries" (People v. Guzman, supra, 77 Cal.App.4th at p. 764), and "[m]ore than one person may be found to have directly participated in inflicting a single injury" (People v. Martinez (2014) 226 Cal.App.4th 1169, 1185). Where action is required, the failure to act can constitute personal infliction. (See People v. Warwick (2010) 182 Cal.App.4th 788, 795.) Defendant was required to drive in such a way so as to exercise ordinary care to avoid an accident. (See People v. Oyaas (1985) 173 Cal.App.3d 663, 669.)
In any event, under the circumstances of the present case, defendant's failure to avoid the collision cannot be divorced, legally or factually, from her act of driving at an unsafe speed while intoxicated. Defendant's driving at an unsafe speed while intoxicated was a direct cause of the collision and Linda's injuries — hence, defendant personally inflicted those injuries — even if defendant's conduct is framed as failure to avoid the collision. No reasonable juror could have concluded otherwise.
The evidence did not present a scenario where, for instance, another driver swerved to avoid defendant and, in doing so, collided with Linda. "In such a case, the other driver's volitional act of swerving out of defendant's path would be the direct cause of the victim['s] injuries, though defendant's reckless driving would still be the proximate cause." (People v. Valenzuela (2010) 191 Cal.App.4th 316, 323; compare People v. Slough (2017) 11 Cal.App.5th 419, 420-421, 424 with People v. Ollo (2019) 42 Cal.App.5th 1152, 1156-1159, review granted Mar. 18, 2020, S260130 & People v. Martinez, supra, 226 Cal.App.4th at pp. 1185-1186.) --------
Absent evidentiary support in the record for a finding defendant proximately caused, but did not personally inflict, Linda's injuries, defendant was not entitled to have the court give her requested special instruction. (See People v. Zamudio (2008) 43 Cal.4th 327, 360.) Were we to conclude the court erred, however, we would further conclude defendant was not prejudiced.
CALCRIM Nos. 2100 and 2101 correctly stated the elements of the substantive offenses, while CALCRIM No. 3162 correctly stated the elements of the GBI enhancement, as defendant acknowledges. The instructions were not conflicting, as " '[j]urors are presumed able to understand and correlate instructions and are further presumed to have followed the court's instructions.' [Citation.]" (People v. Kumar (2019) 39 Cal.App.5th 557, 564.) The absence of the requested instruction did not remove any element or any evidence from the jury's consideration, nor did it preclude counsel from arguing the distinction between proximate causation and personal infliction. Accordingly, the supposed error is properly assessed under the standard articulated in People v. Watson (1956) 46 Cal.2d 818, 836, i.e., whether it is reasonably probable a result more favorable to the defendant would have been reached absent the error, rather than the more stringent beyond-a-reasonable-doubt standard of Chapman v. California (1967) 386 U.S. 18, 24, that applies to errors of federal constitutional magnitude. (See, e.g., People v. Brooks (2017) 3 Cal.5th 1, 69; People v. Gonzalez (2012) 54 Cal.4th 643, 662-663; People v. Chun (2009) 45 Cal.4th 1172, 1203; People v. Larsen (2012) 205 Cal.App.4th 810, 829-830.)
It is not reasonably probable jurors would have found the GBI enhancement allegation not true had defendant's requested instruction been given. We recognize jurors asked the court to define "personally inflicted" with respect to section 12022.7, subdivision (c). Defendant does not contend the trial court erred by rereading a portion of CALCRIM No. 200, which told jurors that words and phrases not specifically defined in the instructions were to be applied using their ordinary, everyday meanings. Because the definition of "personally inflicted" for purposes of the enhancement does not differ from its nonlegal meaning, the phrase needed no definition or clarification by the trial court. (People v. Cross, supra, 45 Cal.4th at p. 68.) Once jurors knew to apply the phrase according to its ordinary meaning, the record does not suggest further confusion on their part. Given the evidence presented to them, there is no reasonable probability they would have found proximate causation without also finding personal infliction.
III
CUMULATIVE PREJUDICE
Defendant says that even if we find the foregoing alleged errors do not require reversal individually, she is entitled to reversal based on their cumulative effect. We disagree. We have assumed, for the sake of argument, a single error, which we have found did not prejudice defendant. As there is no additional error, there is no prejudice to accumulate. (See People v. Williams (2013) 58 Cal.4th 197, 291; People v. Russell (2010) 50 Cal.4th 1228, 1274.)
DISPOSITION
The judgment is affirmed.
DETJEN, Acting P.J. WE CONCUR: SNAUFFER, J. DE SANTOS, J.