Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS050160
McAdams, J.
A jury convicted defendant of felony hit and run boating (Harb. & Nav. Code § 656.2 [count 1]); misdemeanor hit and run boating, a lesser offense of count 1 (Harb. & Nav. Code § 656.1 [count 2]); felony boating under the influence of alcohol and causing injury (Harb. & Nav. Code § 655, subd. (f) [count 3]); boating under the influence of alcohol (Harb. & Nav. Code § 655, subd. (b) [count 4]); and boating with a blood alcohol of .08 per cent or higher. (Harb. & Nav. Code § 655, subd. (c) [count 5].) The jury also found that defendant caused great bodily injury. (Pen. Code § 12022.7.) Count 2, the misdemeanor hit and run conviction, was subsequently dismissed. Defendant was sentenced to five years in state prison.
On appeal, defendant contends that (1) his motion to dismiss pursuant to Penal Code section 995 was erroneously denied; (2) the evidence was insufficient to support the conviction for boating under the influence of alcohol and causing injury; and (3) he was denied his due process right to present a defense when the trial court refused to allow certain evidence. We affirm.
STATEMENT OF FACTS
The Collision
On May 21, 2005, at approximately 5:00 p.m., a boat and a Sea Doo personal watercraft (pwc) collided on Lake San Antonio in Monterey County. At that time, weather conditions were warm, between 75 to 80 degrees, with clear skies and a light breeze out of the northwest causing the water to ripple. The passenger on the pwc, 19-year-old Jason Penalba, was severely injured. His pelvis was crushed, his spleen was lacerated, and his liver and anus were damaged. Since the accident, he requires a footbrace to stabilize his leg and a colostomy bag to excrete stool, and he needs to insert a tube from his penis to his bladder twice a day. Formerly a very athletic college student, after the accident Penalba quit college, no longer plays sports and takes various medications for pain and depression.
Penalba’s friend, Erik Shirey, was operating the pwc. They were on their way back to the dock. According to Penalba, Shirey was not zigzagging and was not driving recklessly. Just before he was hit, Penalba glanced over to his right and saw a big object, about 20 to 30 feet, and a flash of white and yellow.
Carlos and Paige Bombino were also on the lake that day in their boat. At 5:00 p.m. they were leaving a beach campsite and heading directly towards the middle of the lake in order to turn left and get into the lane to go back towards the dock. Carlos was driving. The boat’s engine was turned off at the time because they had stopped the boat to pull up the ladder. From his position in the driver’s seat, Carlos saw a pwc right in front of him, probably 50 yards ahead. The pwc was “zooming around the middle of the lake” in a zigzag pattern but not recklessly, and it was moving “pretty much” in one direction. Then, out of the corner of his right eye, in his peripheral vision, he “saw a boat come flying across.”
Paige Bombino heard a thud, like a car crash. Carlos could just barely hear a cracking sound, “like a crumpling of a plastic can, ” then saw the pwc stop. The boat went past the pwc another 35 yards and slowed to a stop. The two men on the boat stood up, turned around and looked back in the direction of the pwc, then proceeded to go straight. Carlos heard the boat throttle up as it left. Carlos thought the boat left at a normal speed, at perhaps 30 to 35 m.p.h., but Paige felt the boat made a fast departure. The boat was to the right of the buoy, going in the direction of the boat traffic pattern. Prior to the collision, the pwc was also to the right of the buoy, going back and forth at 90 degrees to the boat traffic pattern. At that time, the only watercrafts on the water were the Bombinos’ boat, the pwc and the boat involved in the collision.
As the Bombinos’ boat continued toward the middle of the lake, Carlos noticed pieces of the pwc and two people in the water. When their boat reached Buoy 13 in the middle of the lake, he heard screaming and yelling.
The Bombinos stopped their boat. They could see two men in the water. One of them had pushed the other one onto the pwc. The one on the pwc was bleeding profusely; Carlos could see tendons and muscles “from his behind up.” It appeared that he had been hit somewhere in the rump area from the back of his leg up to his lower back. Carlos’ wife jumped into the water and gave one of the men an orange emergency flag. Because they did not have cell phones, the Bombinos drove their boat back to the shoreline to get help from the three other boats moored there. According to Paige, when they were going to the marina for help later, they passed a yellow and white boat going in the opposite direction.
Kathleen Shelton and Carolee McDonnell were at a youth campground on the shore with their 14-year-old children, David Shelton and Michaelyn McDonnell. All four of them also heard the collision as a loud sound. Michaelyn saw “[t]he boat going right over the top of the Sea Doo and then ... the Sea Doo pop[ped] up.” Kathleen Shelton and Carolee McDonnell heard moaning coming from the lake and saw the pwc in the water. Michaelyn saw the heads of two people in the water. All four saw a boat stop before leaving the scene. Kathleen Shelton saw someone on the boat walk to the back of the boat and look toward the pwc in the water before the boat left the scene. Michaelyn McDonnell saw two people in the boat “turn[] towards the See Doo like they were looking at it.”
Three hours earlier, Brian Pflieger had been sitting outside the mobile home he had rented for the weekend when he heard honking and looked out to the lake. The honking was coming from a flat, “really ugly boat.” A yellow and white boat was drifting towards it. There was loud music coming from the yellow and white boat. When the yellow and white boat was within five feet of the flat boat it “turned away real quick.” A little while later, at the dock, the person in the yellow and white boat chatted with the people from the flat boat for a little while. He invited the people in the flat boat to a party later on. He also told them that he had dropped his keys in the water and he didn’t have a float on them to keep them above water. At that point another person carried a 12-pack of Bud Light and ice onto the boat, and the boat left the dock.
Several hours later, Pflieger was standing with a group of people, including the boy who had been driving the pwc, when he saw the same boat coming into the marina. The boy said “[t]hat’s it, ” and a sheriff’s deputy drove up to the shore. The boat turned around and took off back out to the middle of the lake and stopped, where it was approached by the ranger boat.
The Investigation
At approximately 5:00 or 5:02 p.m., Park Ranger Gregory Grilli heard through the sheriff’s frequency on his radio that there had been a boating accident on the lake, and he made his way to the marina to obtain a boat. He and other rangers went to the collision site, stabilized and then towed Penalba on the pwc to shore. After Penalba was airlifted by helicopter, Ranger Grilli had Shirey blow into an alcohol testing device to investigate whether he was driving the pwc under the influence of alcohol. The result was “zero. zero, ” meaning that the device detected no alcohol in Shirey.
Monterey County Sheriff Ron Willis heard the initial call and went to Lake San Antonio to search for the yellow and white boat. He was driving a black and white sheriff’s patrol vehicle with a light bar on top. At around 7:00 p.m., as he pulled up to the water’s edge, Willis saw a boat traveling toward him on the water at a high rate of speed. The boat was white and yellow and had purple flames on the right or starboard side of the boat. Willis got out of his car, yelled, waved his arms and, he believed, made eye contact with the boat’s driver. At that moment the boat made a hard left turn and went across the lake to the opposite shoreline at a high rate of speed.
Willis is a boater and owns a competition ski boat. He has hit drift wood at 35 miles an hour, and it has made a loud thud on the front bow as well as generated a palpable vibration. It has a definitely different feel and sound from hitting a wake at the same speed.
Monterey County Sheriff Robert Gonzalez was also dispatched to Lake San Antonio to look for the yellow and white boat. A citizen told him that the boat he was looking for was coming into the dock. He parked his car facing the water to await the boat. The driver of the boat looked right at his car and reversed the boat and went across the lake. He watched as ranger boats made contact with the yellow and white boat on the water. As he was waiting for the rangers to bring in the boat, a green Expedition with an empty boat trailer drove up. Gonzalez made contact with the driver, William Jeffers.
Jeffers admitted that he had been on the boat 45 minutes earlier. He said defendant didn’t hit anything and he didn’t see anybody get hurt, before Gonzalez mentioned the collision. He told Gonzalez the boat was going about 50 miles an hour when they hit a wake wrong and Jeffers’s hat and glasses fell off. Later, he said he didn’t have his hat or glasses on, but that his head was down and he didn’t see anything. He didn’t mention a bag flying from the boat.
Park Ranger Joshua Calagno, a 12-year veteran of the Monterey County Parks Department, was trained in boating safety, boating intoxication enforcement and boating accident reconstruction. He was contacted by phone about the accident at approximately 5:00 p.m. and went to the lake. When he arrived at the lake the weather was clear, sunny and warm. There was a typical afternoon breeze, some wind chop on the lake of six inches to a foot at most, and there was not a lot of boat traffic. He inspected the pwc. There was a significant amount of blood on it and damage to it. The damage ran from starboard to port. There were blue paint transfers on the seat bolts and fiberglass flecks in the pwc’s housing area.
Ranger Calagno also interviewed Shirey and gave him field sobriety tests. Calagno concluded that Shirey had been drinking, but was not under the influence at that time.
Heading to the Lynch launch ramp, Calagno heard radio traffic saying that the yellow boat involved in the accident had left the north shore of the lake and was in the five mile per hour zone at the launch ramp. Calagno went to meet the boat in his white patrol truck with a light bar and park ranger emblem, towing a patrol boat with a light bar and emblem. He could clearly see the driver of the boat. The driver lifted his head and then turned his boat around and started to back out towards the lake. Calagno quickly launched his boat and followed the other boat out onto the lake where it had stopped. Calagno saw the driver sitting on a swim step at the back of the boat with his head in his hands.
Ranger Calagno also observed a large paint scratch originating in the blue portion of the gel coat and a bent eye hook on the front of the boat. Calagno asked defendant if he had been in an accident. Defendant said: “I’m an LAPD officer. I don’t know anything about an accident. I wasn’t involved in an accident.” When Calagno asked him what caused the damage to his boat, defendant acted “real panicky” and said: “Damage? What are you talking about? What’s going on? I’m an LAPD officer. … I know you can’t leave the scene of an accident. It’s a felony.” Defendant looked at the damage and explained it was caused by hitting the dock at the marina. Calagno told defendant he didn’t think so, and had defendant get into the patrol boat. Calagno towed defendant’s boat to the marina and tied it to the dock. Calagno estimated that he contacted defendant at approximately 7:20 p.m.
Sheriff Gonzalez took pictures of the damage to the boat. At the bow, where the hull secures to the trailer, a hook was bent and there was a scratch on the side of the boat about 12 inches long.
Defendant told Calagno several times that night that he had damaged his boat at Slip 87 at the Marina. However, when Calagno went to the slip later that night to examine it with a flashlight, he found no damage to the slip, and nothing at the slip that could have caused the damage to defendant’s boat.
Calagno formed the opinion that the damage to defendant’s boat was consistent with the damage to the pwc. Based on defendant’s red and watery eyes, slurred speech and smell of alcohol, Calagno also formed the opinion that defendant had been drinking. Calagno conducted the boating under the influence investigation. Defendant claimed he had bad hips, arms, back, neck, shoulders and feet and could not do any field sobriety tests. He requested a PAS (preliminary alcohol screening) device for chemically detecting alcohol.
Paint samples were collected and tested; however, the test results were inconclusive.
At approximately 8:00 p.m., Ranger Grilli administered two PAS tests to defendant. Next, he administered two evidentiary tests with a Dregger device. At 8:23 p.m. the device registered a blood alcohol concentration of 0.11. At 8:27 p.m. the device registered a blood alcohol concentration of 0.10. Calagno, who had been with defendant since 7:20 p.m., did not see defendant eat, drink, burp, vomit or belch between the time he stopped defendant to the time defendant took the breath tests.
Calagno told defendant he was being placed under arrest for boating under the influence, but that the Monterey County Sheriff Department (MCSD) was doing the accident investigation. Defendant said he wanted to talk to Calagno about the accident. Calagno told him he couldn’t talk to him about the accident at that time because he was being turned over to the MCSD. While they waited for the sheriffs to arrive, defendant began to “violently shake uncontrollably” and his eyes began to tear up.
Several days later, Calagno inspected the pwc and the boat at the Sheriff Department’s secured maintenance yard in Salinas. Based on the type of damage sustained by the pwc, Calagno surmised that the damage was caused by the front of the boat; that both the boat and the pwc were in motion at the time of impact; and that the boat was going at “a tremendous speed, ” probably 30 miles an hour or greater. Calagno could also tell that the pwc was pulling away from what was striking it. Calagno also opined that there were paint transfers from the pwc to the boat and that there was a puncture hole in the seat cushion on the pwc that matched in width, shape and structure the point of impact on the boat. In his opinion, the collision occurred when the pwc, which was traveling from east to west, crossed in front of the boat, which was traveling from north to south.
Calagno testified that he has been boating on the lake since 1988. Often, there are large pieces of debris, such as tree limbs, in the lake. Hitting an object feels different from hitting a wake. “You hit something in a boat, you’re going to feel it because of the nature of … the hulls, everything resonates through that boat. [¶] … [¶] You feel it in the steering wheel. You feel it in your body.”
When a boat hits an object, it also sounds different from when the boat hits a wake. The latter sound is more like a slap, while the former is a thud, a boom or even like a loud gunshot sometimes.
Calagno stepped into the driver’s seat of defendant’s boat while it was still in the water on the day of the collision. The visibility was very clear. There is no windshield that pops up, and the driver sits high in the boat. In his opinion, the driver of a boat like the defendant’s would have been able to see a pwc before, during and after he made impact with the pwc.
Ranger Calagno was familiar with basic boating laws and enforced them on the lake. There is a duty to maintain a proper lookout that applies to all boaters. There is also a duty to maintain a safe speed that applies to all boaters. Asked for his interpretation of the safe speed law, Ranger Calagno said it “is basically that you have to consider the conditions that are around you. [¶] … [¶] When operating a boat … you have to be able to see what is going on in front of you enough to allow for your conditions to safely basically anticipate these things. When you’ve got boats on the right, left, crossing in front of you, behind you, at some point, you’re going to have to make sure you have enough distance to maneuver around somebody cutting in front of you, to stop your boat and maneuver if somebody stops in front of you.” The same rules apply to pwcs. Boaters also have a duty to assess whether or not there’s a risk of collision. “As a boater who’s driving a boat, you have to consider risk of collision, ability to take evasive action, and what’s the safe speed for the conditions.”
There is also a rule that the boat on the right has the right of way. Since defendant’s boat was on the right, it had the right of way, which means that the pwc had to watch out for the boat.
A trash bag found on defendant’s boat contained 33 empty 12-ounce beer cans and one empty water bottle. A Wal-Mart bag inside the trash bag contained another 11 empty 12-ounce beer cans and two non-alcoholic beverage cans.
A criminalist testified about the effect of alcohol on the brain. A person is under the influence of alcohol when the blood alcohol level is 0.08 percent. At that blood alcohol level, a person is mentally and physically impaired. The eyes to do not dilate properly, impairing the ability to recover from glare. Also, peripheral vision and depth perception are impaired. In addition, fine motor skills, hearing, equilibrium, coordination, comprehension and judgment are adversely affected by alcohol.
It would take approximately eight drinks for a 220 pound person to achieve a blood alcohol level of 0.10 percent, and between seven to nine drinks to achieve a blood alcohol level of 0.11 percent. The elimination rate of alcohol from the body is approximately 0.02 percent per hour. Thus, if a 220 pound person stopped drinking alcohol at 4:45 p.m. and his blood alcohol level was 0.10/0.11 three hours later, he would have had to drink 11 drinks before he stopped to achieve that blood alcohol level. If that same person had a collision and did not drink between the collision and the alcohol testing, his blood alcohol level at the time of the collision would have been 0.16 percent at the time of the collision. If that same person drank three additional drinks between 5:00 p.m. and 7:00 p.m., the absorption rate would be the same as the elimination rate and his blood alcohol level would be the same at 8:00 p.m. as it was at 5:00 p.m.
According to defendant’s driver’s license, he weighed 220 pounds, but on the day of the collision he actually weighed 195 pounds.
A 220 pound person who drank 10 drinks in one hour would vomit. His blood level would peak at .12 percent and after two hours of elimination could be as low as 0.08 percent.
If a person weighed 200 pounds, it would take a little less alcohol to reach 0.10 percent because of the lower body weight.
Defense Case
Defendant testified that he had been a police officer for 10 years. On May 21, 2005, he spent the day at the lake with his wife, his two-year-old son, and friends William and Jaime Jeffers.
The boat had been tied up at Slip 87 the night before. The next morning, he noticed that the boat was bouncing in the water and hitting the dock. He saw white marks on the boat. Boarding the boat, defendant dropped his keys in the water, including the glove box key and the boat’s ignition key. He bought a new ignition switch and key at a marine store near the park, installed it, and put the old ignition switch in a paper bag. By this time, his wife and friends had started drinking, but he did not. Defendant was the operator of the boat that day. He launched the boat and started cruising the lake at about 12:30 p.m. They stopped the boat in a cove and floated for about an hour and a half. Defendant drank “a little bit of beer” but put his beer down to play with the baby, who was fussy.
Defendant later testified that at 5:00 p.m. that day when he returned to the marina the keys to his truck and the trailer were in the glove box and accessible to him.
The baby was still fussing, so defendant drove to a beach and dropped off the women and the baby. Although he had loaded the boat that morning with approximately 20 beers and some water, at approximately 2:30 p.m. he drove Jeffers to the store at the marina to buy more beer. As he waited for Jeffers to return, he chatted with an acquaintance on another boat, Kevin Standadge, who invited him to come to the beach where his family was camped. When Jeffers returned with a bag of ice and a 12-pack of Coors Light, he drove back to the beach where he had left the others. At the beach, they sat in the sand and he “had one beer at that point.” Then he played in the water with his son. Around 4:00 p.m., the Standadges came to their beach. After taking a group photo at 4:30 p.m., defendant carried his son to the beach where the Standadges were staying, which was nearby around a rocky point. Amy Standadge offered him a beer and he turned it down. She invited defendant and his party to join them at their campsite later to “drink and just hang out.” Defendant’s group decided “If we’re going to go over there later, we should buy some beer to bring over. [¶] … [¶] [W]e knew there was a store at the marina so we got in the boat and went to the store.”
They called the store at 4:50 p.m. and learned that the store closed at 5:00 p.m. To get there from their position on the south shore of the lake, defendant had to “cut across the southbound traffic pattern across the center line buoys, then … turn north and travel along the right side of the center line buoys toward the marina” and that is what he did. He was not in a rush. He estimated his speed was 40 m.p.h. The engine noise was very loud and the stereo system was on.
Defendant testified that his boat is outfitted with an eight-speaker, two-amplifier, 2, 000 watt stereo system. The volume control is not reachable by the driver of the boat. His boat’s exhaust system is “a lot noisier” than other boats’ because the exhaust ports are completely above water. His engine has eight cylinders and it is so loud that “[y]ou can’t carry on a conversation while you’re underway at normal flowing.”
At one point, he powered down the boat to an idle to look for the paper bag with the old ignition switch in it because the bag had flown up in the air. He and Jeffers looked down on the floor of the boat for it. Jeffers stood up. Defendant may have stood up and turned around to look at the seats. They were stopped for 10 to 15 seconds, if that. He did not look outside the boat; he did not see a pwc in the area; he did not see any people in the water. The water was rough and the ride at 40 m.p.h. was bumpy. “[Y]ou can hear slaps as you go along” at that speed. There was never a point where he thought the boat struck any object other than water.
After looking at the evidence and hearing the witnesses, he believes he “probably did” hit the pwc, but he never saw it. He was looking and paying attention but there was glare on the water. He was not intoxicated. He had had maybe two beers, the last one at 3:30 p.m. He did not think he was impaired by alcohol. In 10 years as a peace officer, he has done 20 DUI arrests and is familiar with the principles of impaired driving.
When he and Jeffers did not find the ignition switch, defendant powered back up and headed toward the marina at “30 to 40 miles an hour maybe.” He dropped Jeffers off at the dock and then backed away from the dock area to wait for him. After several minutes, he saw Jeffers walking back to the dock with three 12-packs of Coors Light and drove to the dock to pick him up. He then drove directly back to the beach. He did not notice anything as he passed Buoy 13 going south. He and Jeffers moored the boat with the front facing the beach. Jeffers noticed a big scratch on the underside of the bow and pointed it out to defendant, who assumed it was scratched at the dock. He was upset. There was nothing he could do about it, so he sat on the beach and started drinking beers. From 5:15 to 7:00 p.m. he drank eight to 10 beers. When the left the beach at 7:00 p.m. they filled a Wal-Mart bag with their trash and other people’s trash as well and put the bag in the boat.
Defendant admitted he was under the influence of alcohol when he drove back to the marina.
Defendant’s wife testified that defendant had two beers all day until 5:00 p.m. and did not appear to be under the influence. From 5 p.m. to 7 p.m. he drank at least 10 beers.
Amy and Kevin Standadge, both police officers, confirmed that they saw defendant on the day of the collision and that he declined a beer. Defendant did not appear to be intoxicated. The pwc riders were reckless or erratic on the water that day.
Several of defendant’s friends and fellow police officers testified that defendant was honest, truthful, trustworthy, and responsible.
A forensic toxicologist testified on defendant’s behalf that without knowing what defendant drank between 5:00 p.m. and 8:27 p.m. when he took a chemical test, there is no way to do a “retrograde extrapolation” to determine a person’s blood alcohol level at 5:00 p.m.
Jeffers testified at trial for the prosecution. He started drinking light beers at the dock at around 11:00 a.m. He didn’t know how many beers he drank that day; he was on vacation and not counting. Their wives were also drinking beers. Jeffers saw defendant drink a beer when they were floating by the dam in a no-wake zone, at around 2:00 or 2:30 p.m. They went to a beach and unloaded the cooler, the women and the child. Then Jeffers and defendant went to the store to get more beer. Before they left the beach to go to the store, Jeffers saw defendant drink beer. He could not say if he drank more than one beer.
When he returned from the store with a 12-pack of beer, defendant was talking to Kevin Standadge. They returned to the beach and they all walked over to the Standadge’s beach site. They made a plan to meet later at the Standadge’s campsite. During the next hour to hour and a half, before they left the beach to get more beer for later, Jeffers saw defendant drink beer. Between the two trips to the store he saw defendant drink one, maybe two beers, but he had no idea because he wasn’t keeping track. He didn’t think it was more than two beers. During that time, Jeffers and his wife participated in a drinking game.
On one of the two trips to the store (he couldn’t remember which one), Jeffers recalled that defendant slowed down the boat when a paper bag that had contained the old ignition flew up and Jeffers caught it. The bag came from down below. Jeffers estimated that the boat was traveling at about 40 m.p.h. Defendant slowed down the boat to look for the ignition for a couple of seconds; when they couldn’t find it, they left. He did not recall if either of them stood up. Jeffers maintained that the wind, not hitting an object, made the paper bag fly up.
Jeffers bought three 12-packs of Coors Light at the store and they took it back to the beach, where Jeffers pointed out to defendant that his boat was scratched. Defendant was upset. Between 5:00 p.m. and 7:00 p.m. Jeffers and defendant drank beer. Jeffers was not sure how many beers defendant drank; he was not paying attention to what defendant was drinking.
DISCUSSION
Sufficiency of the Evidence
Defendant challenges the sufficiency of the evidence to support his conviction for boating under the influence of alcohol and causing injury under section 655, subdivision (f) of the Harbor and Navigations Code. Defendant does not contest that there was sufficient evidence from which the trier of fact could infer that defendant was the operator of the boat at the time of the accident. He argues that the evidence adduced at trial was insufficient to prove that (1) he violated a law or neglected a duty which proximately caused the injury and (2) he was intoxicated at the time of the accident. We disagree.
Harbor and Navigations Code section 655, subdivision (f) provides, in relevant part: “No person shall operate any vessel … while under the influence of an alcoholic beverage, any drug, or under the combined influence of an alcoholic beverage and any drug, and while so operating, do any act forbidden by law, or neglect any duty imposed by law in the use of the vessel …, which act or neglect proximately causes bodily injury to any person other than himself or herself.” A “vessel” includes a recreational boat and its “operator” is the person on board who steers the vessel while it is underway. (People v. Armitage (1987) 194 Cal.App.3d 405, 409, fn. 1 (Armitage); Harb. & Nav. Code §§ 651, subd. (d)(1) & (o).)
The standard of review for insufficiency of the evidence is the deferential substantial evidence rule. “Under that rule we must view the whole record in a light most favorable to the judgment to determine whether it contains evidence by which a reasonable trier of fact could have found defendant guilty beyond a reasonable doubt.” (Armitage, supra, 194 Cal.App.3d at p. 418.)
1. Violation of Law or Neglect of Duty
Boating under the influence, like driving under the influence, requires proof that, “in addition to the driving or operating of the specified vehicle [or boat] while under the influence of intoxicating liquor, the defendant commit[ted] an act forbidden by law or neglect[ed] a duty imposed by law.” (Armitage, supra, 194 Cal.App.3d at p. 416.) Under Harbor and Navigation Code section 655, subdivision (f), “any act prohibited by law and any neglect of a duty imposed by law relating to boating safety, ‘which act or neglect proximately causes … serious bodily injury to any person other than [the defendant]’ is sufficient to constitute the crime of felony drunk boating.” (Armitage, at p. 417.) At a minimum, section 655, subdivision (a) proscribes the reckless or negligent operation of a vessel and authorizes the Department of Boating and Waterways to “adopt regulations for the use of vessels … in a manner that will minimize the danger to life, limb, or property.” (Harb. & Nav. Code § 655, subd. (a).)
Thus, the “law” applicable to boating includes the administrative regulations promulgated by the Department of Boating and Waterways in conformity with federal navigation laws and Coast Guard navigation rules. (Armitage, supra, 194 Cal.App.3d at p. 413; see also Harb. & Nav. Code §§ 651.5, 652, subd. (b), 655.3; 14 Cal. Code of Regs. §§ 6600.1 et. seq.) These administrative regulations “[e]stablish[] minimum safety standards for boats.” (§ 652, subd. (a)(1).)
The California Code of Regulations specifically incorporates by reference the Coast Guard’s Inland Navigation Rules (INR). (See Harb. & Nav. Code § 655.3; 14 Cal. Code of Regs. § 6600.1.) “ ‘The Inland Navigation Rules encompass long-standing steering and sailing rules and principles, otherwise known as “Rules of the Road, ” which govern navigation on inland waters…. These Congressionally sanctioned rules of navigation designed to prevent collision are based upon the fundamental principle that the vessel better able to control her movements should give way to a less able vessel. Indeed, anyone who undertakes operation of vessels on navigable waters is charged with knowledge of the INR and a mandatory duty to obey them.’ ” (Moore v. Matthews (D.Md. 2006) 445 F.Supp.2d 516, 522, fn. 3.)
INR 5 requires that “[e]very vessel shall at all times maintain a proper look-out by sight and hearing as well as by all available means appropriate in the prevailing circumstances and conditions so as to make a full appraisal of the situation and of the risk of collision.” (33 U.S.C.A. § 2005.) INR 6 requires that “[e]very vessel shall at all times proceed at a safe speed so that she can take proper and effective action to avoid collision and be stopped within a distance appropriate to the prevailing circumstances and conditions.” (33 U.S.C.A. § 2006.) INR 7 requires that “[e]very vessel shall use all available means appropriate to the prevailing circumstances and conditions to determine if risk of collision exists. If there is any doubt such risk shall be deemed to exist.” (33 U.S.C.A. § 2007.)
Finally, INR 8 requires that “[a]ny action taken to avoid collision shall, if the circumstances of the case admit, be positive, made in ample time and with due regard to the observance of good seamanship…. [¶] Any alteration of course or speed to avoid collision shall, if the circumstances of the case admit, be large enough to be readily apparent to another vessel observing visually or by radar; a succession of small alterations of course or speed should be avoided…. [¶] If there is sufficient sea room, alteration of course alone may be the most effective action to avoid a close-quarters situation provided that it is made in good time, is substantial and does not result in another close-quarters situation…. [¶] Action taken to avoid collision with another vessel shall be such as to result in passing at a safe distance. The effectiveness of the action shall be carefully checked until the other vessel is finally past and clear…. [¶] If necessary to avoid collision or allow more time to assess the situation, a vessel shall slacken her speed or take all way off by stopping or reversing her means of propulsion…. [¶] A vessel which, by any of these Rules, is required not to impede the passage or safe passage of another vessel shall, when required by the circumstances of the case, take early action to allow sufficient sea room for the safe passage of the other vessel…. [¶] A vessel required not to impede the passage or safe passage of another vessel is not relieved of this obligation if approaching the other vessel so as to involve risk of collision and shall, when taking action, have full regard to the action which may be required by the Rules of this part…. [¶] A vessel the passage of which is not to be impeded remains fully obliged to comply with the Rules of this part when the two vessels are approaching one another so as to involve risk of collision.” (33 U.S.C.A. § 2008.)
The jury in this case was fully instructed on the applicable Inland Navigation Rules.
Clearly, the Inland Rules of Navigation impose an overriding duty on the part of every vessel operator to do everything reasonably within his or her power to avoid a collision with another vessel. The evidence adduced at trial amply established that defendant failed to comply with this duty. First, defendant by his own testimony established that he failed to maintain a proper lookout by sight or hearing. “The performance of lookout duty is an inexorable requirement of prudent navigation.” (Moore v. Matthews, supra, 445 F.Supp.2d at p. 523.) Yet, defendant admitted he did not see the pwc and did not realize he had hit it. However, weather conditions were clear, and numerous other boaters on the lake were able to see the pwc.
Defendant also admitted that the boat was outfitted with a loud stereo system, and that the volume control for the stereo could not be adjusted by the operator of the steering wheel. In addition, the boat was equipped with a big, loud engine. Defendant testified that while he was going about 40 miles per hour, in rough water, with the stereo on and the engine going loudly, the bag which held the old switch flew up and he looked around on the floor for it. A rationale jury was entitled to conclude from this evidence alone that defendant was distracted and failed to maintain a proper lookout.
There was also ample evidence that defendant was not operating the boat at a safe speed for the prevailing conditions. As noted, he admitted going 40 miles per hour. Jeffers told Deputy Sheriff Gonzalez that he thought defendant was going 50 miles an hour. Ranger Calagno estimated that the boat was traveling at “a tremendous speed” of 30 miles an hour or more, based on the damage to both vessels. Defendant admitted that there was glare on the water, and the Standadges testified that there were several “jet skiers” on the water that were driving recklessly and erratically. A rational jury was entitled to infer from these facts that, even if defendant had been paying attention, given these conditions, he was going too fast to avoid a collision with a pwc, should one cross his path in the glare.
Finally, defendant’s own testimony established that he was unaware of any risk of collision with a pwc and, in fact, failed to take any evasive action to avoid the collision that occurred. In addition, one witness, Michaelyn McDonnell, actually saw the boat ride over the pwc, without taking any evasive action. We disagree that the fact of the collision cannot be used to prove a risk of collision existed. On the contrary, the fact of the collision, coupled with the conditions on the lake that day, was probative circumstantial evidence from which a rational jury could conclude that defendant violated his duty to determine if a risk of collision existed and failed to take action to avoid the collision.
2. Under the Influence of Alcohol
Defendant argues that since no one testified that he appeared to be intoxicated at or before the collision, and since the experts could not say what defendant’s blood alcohol level was at the time of the collision, the evidence is insufficient to prove that defendant was under the influence of alcohol at the time of the collision. We disagree.
Assuming arguendo that defendant’s blood alcohol concentration at the time of the collision could not be inferred from the prosecution expert’s testimony, there was nevertheless more than sufficient evidence that defendant was impaired by alcohol at the time of the collision. The criminalist testified that alcohol impairs judgment, hearing, peripheral vision, depth perception, and the ability to recover from glare, among other things. Here, there was ample evidence from which a rational jury could infer that defendant’s judgment, vision and hearing were impaired while he was operating the boat. Brian Pflieger testified that several hours before the collision with the pwc, defendant’s boat nearly drifted into another boat at the dock before taking evasive action. Defendant testified that he never saw the pwc, and blamed it on the glare. There was also evidence that defendant had the poor judgment to be driving on the lake with a stereo so loud he could not hear above it.
There was also ample evidence from which the jury could infer that defendant’s impairments in judgment, vision and hearing were caused by alcohol consumption. Jeffers bought four 12 packs of beer, in addition to the 20 beers already in the cooler on the boat. Forty-four empty beer cans were found on the boat. All of the people who testified that defendant did not appear intoxicated at or before 5:00 p.m. had also been drinking alcohol. Jeffers saw defendant drinking beer in the afternoon, but could not say how many beers defendant drank, because he was not keeping count or paying attention; he was on vacation.
Finally, there was ample evidence that defendant tried to hide his earlier intoxication by becoming more intoxicated after the collision. He admitted that as a police officer, he had investigated driving under the influence cases and was familiar with the principles of impaired driving. He avoided the marina for over two hours, and then evaded Sheriff Willis and Ranger Calagno. Coupled with the evidence of impairment and the vast quantity of beer consumed by four people, two of them women, a rational jury was entitled to infer from his conduct after the collision that defendant exhibited a consciousness of guilt and tried to cover up his pre-collision intoxication. The circumstantial evidence that defendant was under the influence of alcohol at the time of the collision was more than sufficient.
Denial of section 995 motion
Defendant contends the trial court erroneously denied his motion to dismiss the information pursuant to Penal Code section 995 because “there was absolutely no evidence presented … that [defendant] violated any law or neglected any duty separate from the drunkenness which proximately caused the victim’s injury.” Even if we were to agree with defendant that the trial court erroneously denied his section 995 motion, reversal of this conviction is not required. “[A]n erroneous denial of a section 995 motion justifies reversal of a judgment of conviction only when a defendant is able to demonstrate prejudice at trial flowing from the purportedly inadequate evidentiary showing at the preliminary [examination].” (People v. Crittenden (1994) 9 Cal.4th 83, 136-137, italics added; see also People v. Pompa-Ortiz (1980) 27 Cal.3d 519.) “Where the evidence produced at trial amply supports the jury’s finding, any question whether the evidence produced at the preliminary hearing supported the finding of probable cause is rendered moot. Even ‘ “ ‘[i]f there is insufficient evidence to support the commitment, the defendant cannot be said to be prejudiced where sufficient evidence has been introduced at ... trial’ ” ’ to support the jury’s finding as to the charge....” (Crittenden, at p. 137.) Since there was sufficient circumstantial evidence presented at trial to support defendant’s conviction, he cannot make a showing of prejudice. Accordingly, we reject defendant’s claim that it was error for the trial court to deny his section 995 motion.
Exclusion of Defense Evidence
Defendant complains that the trial court deprived him of his due process right to present a defense to the hit and run boating charges when it refused to let defendant play the boat’s CD player to show the jury how loud the boat’s stereo system was. He claims the court’s refusal compromised his defense “that he was unaware that he had collided with the victim’s watercraft because of the excessive noise.” He also complains that the court deprived him of a defense when it refused to admit photographs of damage on other boats in slips which, he asserts, was similar to the damage his boat suffered in a slip. We find no deprivation of due process.
“As a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused’s right to present a defense. Courts retain, moreover, a traditional and intrinsic power to exercise discretion to control the admission of evidence in the interests of orderly procedure and the avoidance of prejudice.” (People v. Hall (1986) 41 Cal.3d 826, 834.) We review the trial court’s rulings for abuse of discretion. (People v. Frye (1998) 18 Cal.4th 894, 945.)
In this case, the jury was taken to observe the boat in a parking lot. The defense wanted the jury to hear the boat’s engine and CD player running together. The prosecutor objected, under Evidence Code section 352, that the boat’s engine would sound “a lot louder [out of water] than it sounds like in water and they’re going to turn on the radio to make as much sound as they possibly can to mislead the jury.” The trial court permitted the defense to turn on the boat’s engine, because most persons were unfamiliar with the sound of a boat engine. The trial court ruled: “I think that the sound of the boat ignition would have some probative value. Most people have very little familiarity with the sound of a boat ignition or with a boat whereas a CD player, even one with 8 speakers and 2, 000 watts, that is certainly within the [realm] of familiarity of most people and that will not be allowed.” In our view, the trial court did not strike an unreasonable balance, pursuant to section 352, between permitting the defendant to present corroborative evidence to support his testimony that he did not hear the collision over the sound of the boat’s engine and stereo, and minimizing the danger that the jury would be mislead by the loudness of the sound made in a parking lot versus on the water. Defendant was not prevented from presenting his defense. No abuse of discretion appears.
Similarly, the court did not abuse its discretion, or hamstring defendant’s defense to the hit and run charges, when it refused to admit photographs, taken a few weeks before trial, of boats tied in slips at the Lake San Antonio marina sporting damage alleged to be similar to the damage suffered by his boat. Defendant claims this evidence would have supported his defense that he thought the damage to his boat was caused by hitting the slip, thereby supporting his testimony that he did not know he had hit the pwc and absolving him of the responsibility to stop and render aid after the collision. Noting that the damage in the photographs was different from the damage to defendant’s boat, and that there was no information about how, when or where the boats were damaged, the court ruled that the photographs had limited probative value, had the potential to mislead the jury and confuse the issues, and were unreliable and time-consuming.
We find no error. The photographs had no reasonable tendency to prove that defendant had a reasonable belief that his boat was not damaged in a collision, or to absolve him from responsibility to stay at the collision site. He testified that (1) he noticed marks on his boat before he first set out from the dock in the early afternoon, and (2) he saw a big scratch on the underside of the boat after he returned to the beach with more beer after 5:00 p.m. and he assumed it was caused at the dock. This was well after he left the scene where something caused the paper bag with the ignition to fly out of the boat. In neither case did his awareness of damage to his boat before and after the collision tend to prove that he did or did not know of the collision and had no responsibility to stop his boat and render aid. The photographs of unknown boats taken long after the event had even less logical relevance to the issues at trial. The defense would not have been aided by the photographs and was not compromised by their absence.
CONCLUSION
Substantial evidence supports defendant’s conviction for boating under the influence of alcohol and causing injury. Therefore, defendant cannot show prejudice from the denial of his section 995 motion. The trial court did not abuse its discretion or trample defendant’s right to present a defense by excluding defense-proffered evidence.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Duffy, J.