Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 05HF1351, Susanne S. Shaw, Judge.
Allison H. Ting, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, David Delgado-Rucci and Ronald A. Jakob, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
BEDSWORTH, ACTING P. J.
Appellant was convicted of (1) driving under the influence of alcohol (DUI) and causing bodily injury, and (2) driving with a blood alcohol level of .08 percent or more and causing bodily injury. The jury also found he inflicted great bodily injury on the victim. While we agree with appellant that some of the jury instructions and verdict forms that were used in his trial were defective, we find no basis for reversal. We therefore affirm the judgment.
On the evening of April 12, 2005, Cynthia Hunter was driving on Pacific Coast Highway in Laguna Beach when she noticed appellant driving slightly ahead of her in the next lane. Appellant’s car drifted halfway into her lane, forcing Hunter to apply her brakes to avoid a collision. Appellant then drove completely into Hunter’s lane, forcing her to brake again.
Up ahead in that lane, another car was stopped at Table Rock Drive waiting for Amy Bainbridge and her friend to cross PCH at a marked crosswalk. Appellant swerved around that car and drove into the crosswalk without slowing down. His vehicle struck Bainbridge, causing her spinal injuries and partial paralysis.
Testing revealed that at the time of the collision, appellant’s blood alcohol level was between .096 and .10 percent. At trial, the defense admitted appellant was under the influence of alcohol at the time he plowed into Bainbridge. However, taking the stand in his own defense, appellant denied he violated any other traffic laws or otherwise drove in a negligent manner. He testified he was unaware of the crosswalk at Table Rock, and as he approached that intersection, he was forced to veer around the car that was stopped in front of him. At that point, it was too late for him to stop, and although he tried to steer around Bainbridge, he was unable to do so.
Appellant was charged in count 1 with DUI and causing bodily injury. (Veh. Code, § 23153, subd. (a).) In count 2, he was charged with driving with a blood alcohol level of .08 percent or more and causing bodily injury. (§ 23153, subd. (b).) With respect to both charges, the prosecution was required to prove not only that appellant drove while drinking in the manner alleged, but also that he concurrently committed an illegal act or neglected a legal duty in driving his vehicle and that such act or neglect proximately caused bodily injury to another. (§ 23153, subds. (a), (b).)
Unless noted otherwise, all further statutory references are to the Vehicle Code.
The prosecution alleged appellant was remiss in his driving in several respects, in that he: (1) drove too fast for the conditions (§ 22350); (2) failed to maintain a safe distance between vehicles (§ 21703); (3) failed to yield the right of way to a pedestrian in a crosswalk (§ 21950); (4) passed a vehicle that was stopped at a crosswalk (§ 21951); and (5) failed to use reasonable care in handling his vehicle.
The trial court instructed the jury that DUI and driving with a blood alcohol level of .08 percent or more were lesser included offenses of counts 1 and 2, respectively. (§ 23152, subds. (a), (b).) However, the verdict forms pertaining to these lesser offenses erroneously included the “causing bodily injury” element, an element that was only applicable to the greater offenses. Specifically, the verdict forms provided that appellant was guilty/not guilty of DUI “causing bodily injury[], a lesser offense necessarily included within the offense as charged in count 1” and “driving with a blood alcohol .08% or more causing bodily injury[], a lesser offense necessarily included within the offense as charged in count 2.” (Italics added and capitalization omitted.)
In addition to the substantive counts, the prosecution also alleged appellant personally inflicted great bodily injury on Bainbridge. (Pen. Code, § 12022.7, subd. (a).) With respect to that allegation, the prosecution had requested the jury be instructed that “[g]reat bodily injury means significant or substantial physical injury . . . that is greater than minor or moderate . . . .” (See CALCRIM No. 3160.) However, through apparent inadvertence, the trial court did not give this instruction or provide any substantive instructions on the great bodily injury allegation.
During deliberations, the jury sent the court a note saying it needed “clarification as to which charge is the greater count 1, or count 2.” The court told them, “Anything with injuries is the greater. The lesser is just simply driving under the influence of alcohol, okay? And the greater is count 1, which is driving under the influence of alcohol; count 2 with causing injury. And count 2, I mean, I think it’s pretty obvious. The lesser is just driving under the influence.”
With that, the jury resumed its deliberations and found appellant guilty of the charged offenses. The jury also found appellant personally inflicted great bodily injury on Bainbridge during the commission counts 1 and 2. After appellant admitted a prior conviction for DUI, the court sentenced him to probation on the condition he serve a year in jail. This appeal followed.
I
Appellant contends the defective verdict forms on the lesser included offenses, coupled with the court’s “convoluted answer” to the jury’s note, left the jury with an impermissible “all-or-nothing choice on the matter,” meaning he was either guilty of the charged offenses or nothing at all. Appellant argues this eviscerated instruction on the lesser offenses and violated his constitutional rights to a fair trial and due process. The Attorney General disagrees, contending the defective verdict forms were not prejudicial considering the record as a whole. We agree with the Attorney General.
As a preliminary matter, the Attorney General contends appellant waived his right to challenge the verdict forms by failing to object to them in the trial court. (See People v. Toro (1989) 47 Cal.3d 966, 976, fn. 6 [“An objection to jury verdict forms is generally deemed waived if not raised in the trial court”].) However, because appellant raises the specter of ineffective assistance of counsel, and there could be no satisfactory explanation for counsel’s failure to object to the defective verdict forms, we will consider appellant’s claim. (See People v. Pope (1979) 23 Cal.3d 412, 426.)
“A verdict is to be given a reasonable intendment” (People v. Radil (1977) 76 Cal.App.3d 702, 710) and should be construed in light of the issues presented, the court’s instructions and the arguments of counsel. (Ibid.; People v. Mackabee (1989) 214 Cal.App.3d 1250, 1256.) The verdict “must be upheld when, if so construed, it expresses with reasonable certainty a finding supported by the evidence [citation].” (People v. Radil, supra, 76 Cal.App.3d at p. 710.)
The only disputed issue in this case was whether, in addition to drinking and driving, appellant drove in an illegal or negligent manner and thereby caused bodily injury to another. (§ 23153, subds. (a), (b).) The parties’ closing arguments were closely focused on this issue, and both sides emphasized the fact that causing bodily injury was a necessary component of the charged offenses. In addition, the court’s oral instructions properly explained that causing bodily injury was an element of the charged offenses, but not the lessers.
Having been so instructed and informed, the jury was understandably perplexed when the verdict forms on the lessers contained the causing bodily injury element. And when it sought clarification, the court’s response was by no means a model of clarity or completeness. But it did contain two accurate pieces of information, namely that “[a]nything with injuries is the greater,” and “simply driving under the influence of alcohol” is “the lesser.” Those both pointed the jury in the right direction, as had counsel and the court’s instructions.
This should have been done better. But the question before us is not whether the nail was driven with the skill we would expect of an expert carpenter, but whether it sufficed to hold the two boards together. We are satisfied it did. The argument of the attorneys, the formal instructions of the court, and the accurate if inartful description of the distinction between the greater and the lesser offenses provided by the court after the jury’s question make us confident the jury’s verdict was based on a correct understanding of the law.
It is also significant that the verdict forms for the charged offenses contained the “causing bodily injury” language. After the clerk of court read the verdict, the court asked the jurors if it represented their decision, i.e., did they find appellant caused bodily injury, as reflected in their verdict? Without exception, the jurors responded to this inquiry in the affirmative. They also found true the allegation that appellant inflicted great bodily injury during the commission of counts 1 and 2. Despite the lack of instruction on this allegation, an issue we discuss below, this finding shows the jury believed appellant caused bodily injury to the victim.
Considering the record as a whole, we are convinced the jury’s verdict expresses with reasonable certainty a finding of guilt on the charged offenses. We therefore uphold the verdict as to counts 1 and 2. (People v. Radil, supra, 76 Cal.App.3d at p. 710.)
II
Appellant also challenges the jury’s true finding on the great bodily injury enhancement. Specifically, he contends the finding must be reversed because the trial court did not offer any substantive instructions regarding the enhancement.
The Attorney General argues that, despite the court’s failure to instruct on the enhancement, no error occurred because the substance of the enhancement was conveyed to the jury in other instructions and the prosecutor’s closing argument. However, at no point did the court instruct the jury on the statutory definition of great bodily injury, to wit, “a significant or substantial physical injury.” (Pen. Code, § 12022.7, subd. (f).) And although the prosecutor alluded to this definition in his closing argument, this did not make up for the court’s instructional oversight: “While we have no trouble utilizing the argument of counsel to help clear up ambiguities in instructions given, there is no authority which permits us to use argument as a substitute for instructions that should have been given.” (People v. Miller (1996) 46 Cal.App.4th 412, 426, fn. 6.) Indeed, when, as here, the court fails to instruct on an enhancement that increases the penalty for the underlying crimes beyond the prescribed statutory maximum, such failure constitutes federal constitutional error. (People v. Sengpadychith (2001) 26 Cal.4th 316, 320, 326.)
Still, the error will be deemed harmless if it can be shown beyond a reasonable doubt that it did not contribute to the jury’s verdict. (People v. Sengpadychith, supra, 26 Cal.4th at pp. 320, 326.) The instruction omitted here would have told the jurors, “If you find the defendant guilty of the crimes charged in counts 1 and 2, you must then decide whether for each crime the People have proved the additional allegation that the defendant personally inflicted great bodily injury on [Bainbridge] during the commission of that crime. Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm. The People have the burden of proving each allegation beyond a reasonable doubt. If the People have not met this burden, you must find that the allegation has not been proved.” (See CALCRIM No. 3160.)
Noticeably lacking from that instruction, because it need not be proved, is any element of causation or intent. If, as was the case here, the jury found the underlying crime had been committed, the only thing the instruction would have told them was to decide whether in committing the crime, the defendant inflicted an injury that was not “minor or moderate,” but rather “significant or substantial.” In this case, the evidence that appellant inflicted great bodily injury on Bainbridge was overwhelming and undisputed. Bainbridge’s treating physician testified that as a result of the collision, her third lumbar vertebrae in her lower back was “blown apart,” causing her paralysis and extensive nerve damage. She has had to undergo two reconstructive back surgeries, and her rehabilitation has been hampered by chronic pain. At the time of trial, she was able to walk but could not maintain one position for a long period of time, and her doctor described her as being “disabled.” There is simply no definition of the terms by which these injuries could be anything but “significant or substantial.”
The defense did not challenge this testimony or question the extent of Bainbridge’s injuries. Nor did it attempt to argue that her injuries were anything other than significant or substantial. Rather, defense counsel avoided any mention of the great bodily injury issue in her closing argument to the jury. Quite plainly, the record establishes great bodily injury as a matter of law with no contrary evidence or argument on the issue, and that weighs heavily in favor of a finding of harmless error. (See Neder v. United States (1999) 527 U.S. 1, 19 [failure to instruct on element of offense may be considered harmless beyond a reasonable doubt where the record is devoid of evidence that “could rationally lead to a contrary finding with respect to the omitted element”]; People v. Flood (1998) 18 Cal.4th 470, 504-507 [failure to instruct on element of offense may be considered harmless beyond a reasonable doubt if evidence of element is overwhelming, uncontradicted and the issue is effectively conceded by the defense].)
Moreover, the prosecutor informed the jury that great bodily injury means just what the Legislature says it does. He explained the term means “the injury is significant or substantial. It’s an injury that is greater than minor or moderate harm.” As noted above, this does not constitute a legally sufficient substitute for the court’s failure to instruct on the meaning of great bodily injury. However, the fact the prosecutor correctly defined this concept ensured the jury was aware of the proper legal standard for the enhancement allegation, which is a factor in the harmless error analysis. (See People v. Champion (1995) 9 Cal.4th 879, 949; People v. Visciotti (1992) 2 Cal.4th 1, 58-59; People v. Murtishaw (1989) 48 Cal.3d 1001, 1030.)
All things considered, we are convinced beyond a reasonable doubt the court’s failure to instruct on the great bodily injury enhancement allegation did not contribute to the jury’s verdict. There simply was no question the victim here suffered great bodily injury and the court’s instructional error could not have had any effect whatsoever. What issues there were in the case revolved not around the enhancement, but the substantive charges. If appellant was guilty of the charged felonies, there was no escape from the great bodily injury enhancement. We therefore uphold the jury’s true findings as to that allegation.
III
Lastly, appellant contends the court erred in denying his request to instruct the jury on the defense of accident or misfortune. (CALCRIM No. 3404.) He doesn’t claim his drinking and driving was an accident; rather, he argues he committed the alleged driving violations by sheer accident in that they were “the product of his being startled by the sudden braking action of the car ahead of him[.]”
The accident defense is based on the theory the defendant acted “without forming the mental state necessary to make his actions a crime. [Citation.]” (People v. Gonzales (1999) 74 Cal.App.4th 382, 390.) It suggests the defendant engaged in some accidental conduct by which the victim was injured. (See People v. Bohana (2000) 84 Cal.App.4th 360, 370-371.) In this case, it was no accident that appellant drove in the highly dangerous manner that led to Bainbridge’s injuries. Indeed, the evidence clearly indicates he did so of his own volition. Appellant may not have intended to hit Bainbridge — and in that sense the collision may be accurately described in colloquial terms as an “accident” — but the intent to injure is not an element of the crimes for which he was convicted. Rather, they simply require, in addition to drinking and driving, the commission of a driving violation that proximately causes injury to another. Since there is no evidence appellant accidentally violated the traffic laws at issue here, the accident defense did not apply and the trial court was not required to instruct on it.
We reject appellant’s claim the combined effect of the court’s errors requires reversal. The verdict miscue and the instructional error on the great bodily injury allegation do not, even when considered together, undermine our confidence in the verdict. No due process or fair trial violation has been shown.
The judgment is affirmed.
WE CONCUR: O’LEARY, J. ARONSON, J.