Opinion
F072079
04-13-2018
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH HASKELL MAINE, Defendant and Appellant.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Gregory B. Wagner, Deputy Attorneys General, for Plaintiff and Respondent.
ORDER MODIFYING OPINION
[NO CHANGE IN JUDGMENT]
THE COURT:
It is ordered that the opinion filed herein on April 13, 2018, be modified in the following particulars:
1. On page 2, following the last sentence of the second full paragraph, which ends in "pursuant to section 654," add the following sentence:
Defendant was additionally sentenced to a concurrent 180-day jail term on count 6.
2. On pages 7-8, the sentence, which begins at the bottom of page 7 with "In response to a hypothetical question" and ends at the top of page 8 with "0.21 percent at 2:55 a.m.," the last words in that sentence "at 2:55 a.m." are changed to "two hours prior to the blood draw" so that the sentence reads:
In response to a hypothetical question posed by the prosecutor, Ruvalcaba employed retrograde extrapolation9 and estimated a 5-foot-11-inch, 162-pound male who consumed two glasses of wine sometime between 7:00 p.m. and 8:00 p.m. and six 12-ounce cans of beer at around 11:10 p.m.; was involved in an automobile collision at 12:40 a.m.; and had blood drawn at 2:55 a.m., the analysis of which revealed a BAC of 0.16 percent, would have had a BAC between 0.16 and 0.21 percent two hours prior to the blood draw.
There is no change in the judgment.
DETJEN, Acting P.J. WE CONCUR: PEÑA, J. SMITH, J. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BF159159A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Michael E. Dellostritto, Judge. Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Gregory B. Wagner, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Defendant Joseph Haskell Maine was charged with the second-degree murders of Vanessa Carrillo and her unborn child (Pen. Code, § 187, subd. (a) [counts 1 & 2]); gross vehicular manslaughter of Vanessa while intoxicated (§ 191.5, subd. (a) [count 3]); felony driving under the influence (DUI) and causing bodily injury to Vanessa (Veh. Code, § 23153, subd. (a) [count 4]); felony driving with a blood alcohol concentration (BAC) of or in excess of 0.08 percent and causing bodily injury to Vanessa (id., subd. (b) [count 5]); and misdemeanor driving without a valid license (Veh. Code, § 12500, subd. (a) [count 6]). The information further alleged as to counts 3 through 5, defendant "PROXIMATELY CAUSED BODILY INJURY TO MORE THAN ONE VICTIM, TO WIT: PAMELA COLEMAN" (id., § 23558); as to count 3, he "PROXIMATELY CAUSED BODILY INJURY TO MORE THAN ONE VICTIM, TO WIT: MARTHA CARRILLO" (ibid.); and as to counts 4 and 5, he personally inflicted great bodily injury upon Vanessa and Martha (§ 12022.7, subd. (a)). Prior to the jury being instructed on the law, the prosecutor's motion to dismiss counts 4 and 5 was granted.
Unless otherwise indicated, subsequent statutory citations refer to the Penal Code.
To avoid confusion, we distinguish individuals who share the same surname by their given names. No disrespect is intended.
Following trial, the jury found defendant guilty of counts 1, 2, 3, and 6. The jury also found true the alleged Vehicle Code section 23558 enhancements. Defendant was sentenced to 15 years to life on count 1; a concurrent 15 years to life on count 2; and 10 years, plus two years for proximately causing bodily injury to Coleman and Martha, on count 3. Execution of punishment on count 3 was stayed pursuant to section 654.
On appeal, defendant makes several contentions. First, the trial court should have given a requested pinpoint instruction on a driver's duties at an intersection controlled by traffic lights. Second, instructions permitting the jury to infer he had a BAC of or in excess of 0.08 percent at the time of the collision from a blood test taken within three hours of said collision were improper. Third, the cumulative effect of the abovementioned errors deprived him of due process. Fourth, there is a clerical error in the abstract of judgment. For the reasons set forth in this opinion, we order the error in the abstract of judgment corrected. In all other respects, we affirm the judgment.
STATEMENT OF FACTS
I. Prosecution's case-in-chief.
On January 17, 2014, at 12:23 a.m., Officer Maxwell of the Bakersfield Police Department (BPD) conducted a traffic stop on southbound South Union Avenue. He pulled over the vehicle approximately 100 feet south of the South Union Avenue-Fairview Road intersection. While Maxwell was speaking to the driver, he "heard the sound of a loud engine being revved" and "the resulting sound . . . commonly known as a burnout." He looked up and saw a "GMC or Chevy pickup traveling at a high rate of speed westbound" on Fairview Road. Based on his training and experience, Maxwell estimated the truck's speed was at least 70 miles per hour, well over the 40-mile-per-hour speed limit.
Maxwell defined "rev" and "burnout":
"Rev means the engine is operating at a high RPM[, i.e., revolutions per minute,] resulting in a loud exhaust sound and, . . . depending on the engine, it's a high pitched noise from the engine."
"A burnout is commonly an act when a driver applies the brake, and at the same time while applying the brake applies the gas pedal causing the rear tires to break traction resulting in a spinning while the front wheels are stopped, and resulting in a . . . large plume of white smoke coming from the back tires. [¶] . . . [¶] . . . The tires breaking traction on the asphalt will commonly make a loud screeching noise, and similar to that if you had a vehicle braking hard enough while they are driving in order to stop, which is noted a locked wheel skid, the sounds are similar in nature."
Meanwhile, Coleman was driving a black Ford Fusion northbound on Monitor Street. Her best friend Vanessa, who was eight months pregnant, was in the front passenger seat. Vanessa's mother Martha was in the back seat. The three women were returning home after purchasing fast food. Coleman had a green light at the Monitor Street-Fairview Road intersection, a half-mile west of the South Union Avenue-Fairview Road intersection. As she was entering the middle of the intersection, however, she heard Vanessa say, "[O]h, shit." Before Coleman could react, a gray GMC Sierra pickup truck crashed into the passenger side of the Ford Fusion. The impact propelled the car into a wall northwest of the intersection. Vanessa and her unborn child were killed. Coleman sustained a neck injury and multiple contusions. Martha sustained a scalp laceration and blunt abdominal trauma. Shortly after the crash, Coleman saw defendant getting out of the driver's seat of the truck.
At 12:41 a.m., BPD was dispatched to the scene of the accident. The first responding officers arrived "within five minutes." Defendant acknowledged he was the driver of the GMC Sierra. His driver's license was expired. Officer Grogan, who arrived at 12:53 a.m., "noticed [defendant's] speech was slurred and he had red bloodshot watery eyes." In addition, Grogan "could smell the odor of an alcoholic beverage coming from his breath." Defendant told Grogan he consumed three 12-ounce cans of beer, finishing the last can at around 12:10 a.m. Thereafter, Grogan initiated a field sobriety test battery. First, he administered the horizontal gaze nystagmus test. Grogan observed:
Grogan described the horizontal gaze nystagmus test:
"[T]he horizontal nystagmus is something that we look for, and it's the involuntary jerking of the eyeballs, so what we do - we would hold an object. Some officers use . . . a pencil or a pen light. I use my finger. We hold that about eight to 12 inches in front of the person's nose, and we move the stimulus.
"Like in that case, it would be my finger horizontally, and ask the person to follow with their eyes, so we make three passes, left eye, right eye, and I always start with the left side, so as I move my finger horizontally, I watch to see if the person's eyeballs can smoothly follow my finger, or if they stop for a second and then catch up, which is what would be the jerking of the eyeball, so I would do that one pass for the left eye and one to the right eye, and I look to see if both eyes are smoothly tracking my finger, or if they are not, the second pass I bring my finger out to 45 degrees which is about the shoulder width of the person, and I hold my finger there for three to four seconds while they try to keep their eyes on my finger at that 45-degree angle, and then I look to see if the eyeball is bouncing or jerking back and forth at that point as they are trying to focus on my finger. I do that for the left eye and then the right eye.
"And then on the third and final pass, I bring my finger all the way out to the 45-degree, and then I start slowly moving it back towards the center to see where the person's eyeball stops jerking and can focus without jerking, and I do that for both the left and the right eye. And then the final portion of that is of the eye exam, and we look for what's called nonconvergence, and that's where we use our finger and make several circles in front of the person. And as we move our finger closer to the person's nose and make the circle smaller forces the person to cross their eyes, and you hold it near the tip of their nose and watch to see if one or both of the eyeballs will not be able to stay crossed, and one of them would pop out or not, and that's the complete eye exam we administer."
"[Defendant] had a lack of the smooth pursuit of my fingers and his eyeballs were jerking. . . . [O]n the second pass, at the extreme 45-degree angle, his eyeballs were jerking, and then when I looked to see where they stopped jerking on the third pass, it was prior or before the 45 degrees."Next, Grogan wanted to administer the walk-and-turn test, but defendant indicated "he was having [physical] difficulties because of the collision." At 1:08 a.m., with Maxwell's assistance, Grogan obtained defendant's breath sample with a preliminary alcohol screening (PAS) device, registering a BAC of 0.16 percent. Based on the overall circumstances, Grogan opined defendant was too intoxicated to operate a motor vehicle safely and placed him under arrest. After being advised of the implied consent law, defendant elected to take a blood test.
Grogan described the walk-and-turn test:
"[W]e have the person that we're examining stand in front of us face to face, and we ask the person to put their right foot in front of their left foot touching heel to toe or both of their feet are in line, and we ask them to keep their hands flat down at their sides, and we ask the person to stay in that position while we demonstrate what we're going to ask him to do as far as how the test goes.
"And while the person standing is like that, we tell them I'm going to ask you to take nine steps heel to toe, keeping your hands at your side and counting your steps out loud, and I want you to look at your feet while you're taking your nine steps. And then I tell them - for the turn portion, I tell them when you get to your ninth step, use your back foot to take a series of small steps to turn yourself around and take nine steps back the way they came."
Defendant was transported to Kern Medical Center. There, he was interviewed by Officer Diederich. Defendant told Diederich he "had two glasses of wine" "approximately four to five hours before the collision" and then "six beers" "within the last hour and a half prior to the collision." He also admitted he was previously convicted of a "wet reckless" and given a Watson advisement. Diederich noted defendant "spoke with slurred speech," "had red and watery eyes," and emitted "a very strong odor of alcohol." At 2:55 a.m., blood was drawn from defendant's arm. An analysis of the sample showed a BAC of 0.16 percent.
See Vehicle Code sections 23103 through 23103.5.
Starting on January 1, 2005, Vehicle Code section 23593 required defendants convicted of DUI or alcohol-related reckless driving to be advised they can be charged with murder if they continue to drive drunk and a fatality occurs. (Levenson & Ricciardulli, Cal. Criminal Law (The Rutter Group 2017) § 11:77.) The advisement reads:
"You are hereby advised that being under the influence of alcohol or drugs, or both, impairs your ability to safely operate a motor vehicle. Therefore, it is extremely dangerous to human life to drive while under the influence of alcohol or drugs, or both. If you continue to drive while under the influence of alcohol or drugs, or both, and, as a result of that driving, someone is killed, you can be charged with murder." (Veh. Code, § 23593, subd. (a).)This advisement was intended to facilitate proving a defendant was aware of the risk involved in impaired driving in murder prosecutions under People v. Watson (1981) 30 Cal.3d 290. (Levenson & Ricciardulli, Cal. Criminal Law, supra, § 11:77; see People v. Doyle (2013) 220 Cal.App.4th 1251, 1265 ["If the intoxicated killer drove while aware of the risk to life and consciously disregarded that risk, then the killer committed second degree murder [citation], a Watson murder."].)
At trial, Ivette Ruvalcaba, a Kern Regional Crime Laboratory criminalist, described the correlation between a person's BAC and his or her ability to operate a motor vehicle safely:
"My opinion is that most individuals would show a slight degree . . . of impairment in terms of one to two essential tasks needed to operate a motor vehicle, and that concentration could be as low as 0.05 percent. As the alcohol concentration increases in the individual, . . . the impairing [e]ffect[] of alcohol increases. [¶] . . . [¶]In response to a hypothetical question posed by the prosecutor, Ruvalcaba employed retrograde extrapolation and estimated a 5-foot-11-inch, 162-pound male who consumed two glasses of wine sometime between 7:00 p.m. and 8:00 p.m. and six 12-ounce cans of beer at around 11:10 p.m.; was involved in an automobile collision at 12:40 a.m.; and had blood drawn at 2:55 a.m., the analysis of which revealed a BAC of 0.16 percent, would have had a BAC between 0.16 and 0.21 percent at 2:55 a.m. On cross-examination, Ruvalcaba adjusted the projected BAC to between 0.09 and 0.14 percent on the assumption the subject completed the final beer 10 minutes before the collision. She added she would expect a 5-foot-11-inch, 173-pound male to fully absorb one 12-ounce can of beer "within 30 minutes to an hour" "with a full stomach" and "less than 30 minutes" "with . . . an empty stomach."
"At . . . [0].08 [percent], . . . individual[s] may have a sway, unable to maintain their stance. And as the concentration increases in their body, . . . their ability to perform . . . tasks become[s] more impaired and the . . . [e]ffects are more prominent. Eventually that sway becomes a stagger and . . . at higher concentrations from . . . [0].2 [percent] or higher, . . . they become so impaired with their basic functions like walking and talking that eventually they . . . blackout or aren't able to do it. [¶] . . . [¶]
". . . [A]t . . . [0].10 [percent], . . . the individual is impaired in terms of being able to operate the motor vehicle safely, especially if there's a change in the environment. At . . . [0].16 [percent], it is my opinion that a person is unable to operate a vehicle safely just based on the concentration."
Ruvalcaba explained:
"The retrograde calculation is a calculation used by forensic alcohol analysts to interpret evidence. . . . [B]ased on the pharmacokinetics, the way that alcohol behaves in the body, and the way it is absorbed in the body and eliminated, it's distributed throughout the body and eliminated from the body. And based on that information, a trained individual can back calculate based on . . . what the [BAC] . . . would have been at a certain time. [¶] . . . [¶]
". . . I would need to know at what time the blood was drawn . . . , what the [BAC] was at that time, and I need to know how far back I have to back calculate, and I need to know . . . the gender of the subject . . . , the weight of the subject. I need to know as much . . . information as possible. [¶] . . . [W]hen the subject stopped drinking is . . . important information in order to make the best estimate of the [BAC] level at that time."
Officer Berchtold, an accident reconstructionist and trained DUI investigator, testified the speed limit at the Monitor Street-Fairview Road intersection is 45 miles per hour in all directions. He reviewed the information from the Ford Fusion's event data recorder (EDR) and determined Coleman's speed was (1) 34.2 miles per hour five seconds prior to the collision; (2) 33.6 miles per hour three seconds prior to the collision; and (3) 32.9 miles per hour one second prior to the collision. "There was no braking applied at all on the Ford Fusion during th[e] entire five seconds" preceding the crash. He opined:
"[Coleman] was traveling under the speed limit of 45 miles per hour, to be exact 10 miles an hour under or more throughout the entire process approaching the intersection, so from five seconds and all the way up until collision, she was under, in fact, slightly decelerating. . . . [¶] . . . [I]t was a constant flat, no major changes to the driving pattern at all, a very cautious state of travel."Berchtold also reviewed the information from the GMC Sierra's EDR and determined defendant's speed was (1) 64 miles per hour 2.5 seconds prior to the collision; (2) 63 miles per hour two seconds prior to the collision; (3) 62 miles per hour 1.5 seconds prior to the collision; (4) 58 miles per hour one second prior to the collision; and (5) 53 miles per hour half a second prior to the collision. He calculated a "light amount of braking" 1.5 seconds prior to the collision; a "light amount of braking" one second prior to the collision; and "maximum braking" a half second prior to the collision. Had defendant applied the brakes "forcibly" 2.5 seconds prior to the collision, the GMC Sierra "could have stopped" at the limit line.
Berchtold pointed out "[t]he actual reading[s] from the [GMC Sierra's EDR] were slightly off, because the vehicle had oversized tires from its original manufacture." Hence, he "adjusted for the oversized tires."
Based on the EDR data, Berchtold determined defendant "would have visibility of the entire Ford [Fusion]" 1.5 seconds prior to the collision. He attested the average perception-reaction time is 1.5 seconds. However, a person with a BAC of 0.15 percent has a perception-reaction time of 2.5 seconds. In response to a hypothetical question posed by the prosecutor, Berchtold opined a driver involved in an automobile collision who was "revving," "burning out," and driving 70 miles per hour in a 45-mile-per hour zone immediately beforehand engaged in "risk taking behavior." According to studies on DUI's, individuals under the influence of alcohol "are known to take further risks that they would not normally take . . . ."
In November 2014, after reviewing the materials of Cole Brewer, the defense's accident reconstructionist, Berchtold tested the traffic lights at the Monitor Street-Fairview Road intersection. He drove a BPD pickup truck westbound on Fairview Road three times. Once, the light stayed red when the truck was at the limit line. Twice, the light changed from red to green when the truck was "probably over a half mile away." Berchtold also drove the truck northbound on Monitor Street twice. On one occasion, the light changed from red to green after the truck stopped and waited at the limit line. On the other occasion, the light "didn't even cycle at all . . . ." Berchtold learned about complaints raised before and after January 17, 2014, regarding signal malfunctions at the intersection. He concluded any attempt to ascertain exactly how the lights operated at the time of the collision via reconstruction "could not be done at all."
II. Defense's case-in-chief.
The parties stipulated defendant weighed 173 pounds at the time of the collision.
In 2007, defendant was arrested for DUI. At the time, his BAC was 0.07 percent. Defendant subsequently pled nolo contendere to a "wet and reckless." He was advised about the dangers of drinking and driving by the judge and signed an accompanying form.
On January 16, 2014, sometime between 7:00 p.m. and 8:00 p.m., defendant ate steak and chicken and drank two glasses of wine for dinner at his fiancée's house. A "[c]ouple of hours" later, he started drinking beer with some visitors. Defendant consumed six 12-ounce cans. He finished the last can "10, 15 minutes" before the accident. Afterward, defendant, who did not feel intoxicated, left the house to purchase more beer and firewood at a convenience store. He drove his truck westbound on Fairview Road at a speed of 45 to 50 miles per hour. At no point did defendant "rev[] the engine" or "burn [his] tires." As he was approaching the Monitor Street-Fairview Road intersection, he noticed the light was red and started to press the brake pedal. Before reaching the intersection, however, the light turned green. Defendant moved his foot off the brake pedal but did not press the accelerator. He then noticed a set of headlights advancing on him to his left. Defendant braked and tried to swerve, but his truck collided with the other vehicle. The crash occurred at approximately 12:30 or 12:40 a.m. Following the accident, defendant could not complete the field sobriety test battery due to leg pain. He did not tell Grogan he drank his last beer 45 minutes prior to the collision. At Kern Medical Center, defendant told Diederich his light at the Monitor Street-Fairview Road intersection was initially red, but the light changed to green before he reached the intersection.
Darrell Clardy, a forensic toxicologist, testified a person's ability to operate a motor vehicle safely generally becomes impaired at a BAC of 0.08 percent. Above 0.08 percent, "the effects of alcohol on driving . . . increase exponentially."
Clardy described the process of alcohol absorption and elimination:
"[Alcohol is] absorbed primarily through the small intestine, you drink it, and it goes to the stomach, and alcohol leaves the stomach, and it goes into the small intestine, and it diffuses into the bloodstream, it goes into the hepatic blood stream, so it goes to the liver. From the liver, it goes to the heart, and from the heart to the lungs, and from the lungs back to the heart, and then the heart pumps the blood to all the parts of the body, and the alcohol leaves the blood and goes into the water of the body. An absorption can take on the average on an empty stomach about 60 to 70 minutes, and it ranges from around 30 minutes up to around . . . two and a half hours. With food in the stomach, it can take two to three hours on the average to get to your pe[a]k [BAC]. [¶] . . . [¶]
"[Alcohol is] eliminated primarily through the liver, through your enzymes and the mitochondria that metabolize the alcohol primarily. The endoplasmic reticulum where the side of plasmic enzymes can also metabolize the alcohol if you drink a lot of alcohol . . . ."
In response to a hypothetical question posed by defense counsel, Clardy estimated a 5-foot-11-inch, 173-pound male who was involved in an automobile collision at 12:40 a.m.; had consumed two glasses of wine four to five hours before the collision; had consumed six 12-ounce cans of beer over "a span of about an hour and a half" and finished the last can approximately 10 minutes before the collision; provided a breath sample at 1:08 a.m., which registered a BAC of 0.16 percent; and provided a blood sample at 2:55 a.m., which registered a BAC of 0.16 percent, would have still been absorbing alcohol at the time of the collision. He explained:
"At 1:08 [a.m.], we have . . . [0].16 [percent]. At 2:55 [a.m.], we still have . . . [0].16 [percent]. If you were postabsorptive, it would be lower. The only reason it's . . . [0].16 [percent] is that you're still absorbing alcohol at . . . 1:08 [a.m.] . . . . [¶] . . . [¶] . . . [I]f he's postabsorptive at the time of the [PAS device reading] of . . . [0].16 [percent], the enzymes are going to remove alcohol, and you would drop
below [0].16 [percent] down to about . . . [0].14 [percent] at the time of the [blood] test, maybe a little bit lower, but you see a decrease, and it would be obvious. The fact that it's still . . . [0.16 percent] means that alcohol had to leave the stomach, and come into the body, because the enzymes [are] going to metabolize alcohol over that period of time.Clardy also questioned the accuracy of a PAS device:
"[Y]ou're [measuring] the undiluted alcohol . . . in the breath, and that causes the result to overrepresent what his true level is, so the breath would be higher than what the actual level is. [¶] . . . [¶]Clardy estimated the subject's BAC at the time of the collision:
". . . [T]he PAS test is absorptive, and he would have gone up a little bit from the time of the accident, so . . . [0.]16 [percent] is reading high, and I've seen results as much as . . . [0].05 [percent] high[er], and other people have reported it could be . . . [0.]10 [percent] high[er], so that's very consistent with the drinking pattern . . . - having him down somewhere around . . . [0.]12, . . . [0.]11 [percent] at the time of the PAS test and his blood going up to a peak level of [0.]15, [0.]16 [percent] on the average, and the blood [test] is . . . [0.]16 [percent], so I see nothing wrong with the drinking pattern, and it is consistent with the measured results, and what one reasonably would expect."
"If I take into account the drinking pattern and his height and weight, I would say he would be in a range of levels, and the low end would be somewhere around . . . [0.]05, [0.]06 [percent]. The high end would be somewhere around . . . [0.]09, [0.]10 [percent], so he would be in that range, and it would be my expectation . . . the alcohol level would be increasing as time went on. [¶] . . . [¶]On cross-examination, Clardy adjusted the projected BAC to between 0.09 and 0.10 percent on the assumption the subject completed the final beer 45 minutes before the collision.
". . . Based on the drinking pattern, I would expect [him] to peak at the average, somewhere around . . . [0].15 and . . . [0.]16 [percent], but the range could have a low end of . . . [0.]13, . . . [0.]14 [percent], and a high end of . . . [0.]17, [0.]18 [percent]. [¶] . . . [¶] . . . [G]iven the fact that he finished drinking shortly before the accident, and we have alcohol in the stomach, and there's a lot of emotions involved once you've been in an accident. It takes several hours, so probably [he] would peak around two or three o'clock."
Gary Wenino, a traffic operations technician employed by the city, testified the traffic lights at the Monitor Street-Fairview Road intersection were installed sometime before January 2014 and he initially programmed them. The lights are linked to cameras and the lanes in each direction of travel have superimposed "detection zone[s]," namely a "stop bar zone[]" adjacent to the crosswalk and an "advanced detection zone[]." When the camera spots a vehicle entering a zone, the signal controller operates in accordance with the program. According to Wenino, "the computer determine[s] which [direction] has a green light" "by the last car observed until another vehicle approaches the intersection." In particular, the program does not "allow . . . an advanced detection on westbound Fairview [Road] [that] change[s] a red light to a green light." By default, the lights are not "set to recall any particular direction." In any event, "if the signal . . . w[ere] recalling to a specific direction," that situation would not "present any kind of safety hazard for drivers." A conflict monitor "ensure[s] that . . . two directions can't have a green light at the same time." Sometime between September 24 and October 9, 2014, Wenino inspected the lights at the Monitor Street-Fairview Road intersection and concluded they "appeared to be" functioning normally. He stated "it would be very difficult" to recreate "how the [lights] would function at the time a crash took place" because "there are a number of variables that can affect whether or not it functions" as per the program.
Wenino explained the "recall" setting:
"We have a minimum recall and a max recall. A minimum recall brings up every direction or whatever direction is on recall, and it brings it up, and it times a minimum time, whether there's a vehicle there or not. [¶] . . . [¶] . . . A max recall will bring that same direction up, and it will time a longer time which is a maximum time we use."Wenino added a traffic light may be "temporarily put . . . on recall" if "it's not working" or "during fog season, [when] cameras have trouble detecting." Once "the issue is fixed," "the signal automatically reset[s] back to the programming."
Peter Martin, supervisor of the city's general services electrical traffic signal street light section, detailed the services performed on the traffic lights at the Monitor Street-Fairview Road intersection prior to and following the collision. On December 17, 2013, the northbound green light was replaced. On May 3, 2014, a technician temporarily executed the recall setting "for some [unspecified] reason." On May 5, 2014, technicians checked the video cards; replaced the programmable read-only memory (PROM) card, which "has the traffic signal program on it"; and redrew the detection zones on a computer using a "wizard set up." On June 18, 2014, a technician tested the conflict monitor. On July 14, 2014, a technician checked the operation of the lights and the pedestrian signals; checked the PROM's backup battery; and replaced the internal cooling filter. Nothing in the maintenance log exhibited "a change made to the timing of the advanced detection."
The maintenance log indicated BPD "had placed the signal on flash for some reason." Martin surmised, "[I]f [BPD] put it on flash, it probably was not detecting for one direction at that intersection."
Brewer reviewed the information from the Ford Fusion's EDR and agreed Coleman's speed was (1) 34.2 miles per hour five seconds prior to the collision; (2) 33.6 miles per hour three seconds prior to the collision; and (3) 32.9 miles per hour one second prior to the collision. He agreed the brakes were "[not] on at any point" during this five-second interval. Brewer also reviewed the information from the GMC Sierra's EDR and determined defendant's speed was (1) 64 miles per hour 2.5 seconds prior to the collision; (2) 63 miles per hour two seconds prior to the collision; (3) 63 miles per hour 1.5 seconds prior to the collision; (4) 62 miles per hour one second prior to the collision; and (5) 55 miles per hour half a second prior to the collision. Defendant (1) applied the brakes 2.5 seconds prior to the collision; (2) did not apply the brakes two seconds prior to the collision; (3) did not apply the brakes 1.5 seconds prior to the collision; (4) applied the brakes one second prior to the collision; and (5) applied the brakes a half second prior to the collision. According to Brewer, had defendant applied the brakes continuously, "it would have been possible to stop . . . before the limit line of the intersection."
Brewer testified he increased each of the EDR's original readings by four miles per hour on account of "the increased circumference [of] the [GMC Sierra's] tires."
Based on the EDR data, Brewer determined defendant "should have first been able to see the Ford Fusion approaching northbound" "about . . . one and a half seconds" before the crash. Based on his knowledge of visual perception, he stated "[it was] possible to actually see light coming from the headlights of another car before seeing the actual front bumper of . . . [that] car at nighttime," meaning defendant "could have seen the [Ford Fusion's] headlights sooner than . . . 1.5 seconds [prior to the collision]."
Brewer observed the traffic lights at the Monitor Street-Fairview Road intersection on August 24, 2014, between midnight and 1:00 or 1:30 a.m., and October 11, 2014, between 1:00 a.m. and 2:00 a.m. He noted (1) the light facing westbound traffic on Fairview Road changed from red to green before an oncoming vehicle stopped at the limit line; and (2) the light facing northbound traffic on Monitor Street did not change from red to green until after a vehicle stopped at the limit line. Brewer concluded the lights recalled to the westbound direction, contradicting Wenino's testimony "there was no priority to any signal."
Johanna Romero, a defense investigator, examined the traffic lights at the Monitor Street-Fairview Road intersection on April 26, 2015, at approximately 12:30 or 1:00 a.m. She noted the light facing eastbound traffic on Fairview Road (1) changed from green to red when a vehicle traveling southbound on Monitor Street approached the intersection; and (2) changed from red to green after the aforementioned vehicle cleared the intersection. Romero also noted the light facing westbound traffic on Fairview Road (1) changed from red to green after a vehicle traveling northbound on Monitor Street cleared the intersection; and (2) changed from green to red after a vehicle traveling westbound on Fairview Road cleared the intersection.
III. Prosecution's rebuttal.
The jury listened to an audio recording of defendant's interview at the scene of the accident. The following exchange occurred:
"GROGAN: Are you uh, Joseph?
"[DEFENDANT]: Yes.
"GROGAN: Okay. Can you uh, basically tell me what happened?
"[DEFENDANT]: Well I was driving this way.
"GROGAN: Which way?
"[DEFENDANT]: Right, this way, right here, coming this way.
"GROGAN: North?
"[DEFENDANT]: Yeah. [¶] . . . [¶] . . . And my light was green, and, and then when I, when I got to the light, as soon as I got to the light, it turned yellow.
"GROGAN: Okay.
"[DEFENDANT]: You know what I mean, so I couldn't even stop, nothing at all, you know what I mean? [¶] . . . [¶] . . . And boom. I hit them. Bow. [¶] . . . [¶]
"GROGAN: Which way were they going?
"[DEFENDANT]: This way I think.
"GROGAN: So they were headed West . . .
"[DEFENDANT]: Yeah.
"GROGAN: And you were coming North.
"[DEFENDANT]: And I think they were trying to run the red light.
"GROGAN: Okay.
"[DEFENDANT]: And when they did, I hit them. [¶] . . . [¶]
"GROGAN: Did uh, do you remember what speed you were traveling?
"[DEFENDANT]: Oh yeah, 45.
"GROGAN: 45?
"[DEFENDANT]: Yeah. [¶] . . . [¶]
"GROGAN: Okay. Uh see, how much have you had to drink tonight?
"[DEFENDANT]: I had three beers . . .
"GROGAN: Uh-huh.
"[DEFENDANT]: . . . and then I was going to go get me another 20 pack, 'cause I didn't feel like I was drunk, or nothing like that. [¶] . . . [¶]
"GROGAN: What kind of beers, like 12 ounce, regular size?
"[DEFENDANT]: Yeah, yeah, yeah 12 ounce. [¶] . . . [¶] . . . Now I, now I feel bad though, because now, man I (unintelligible) go jail for a long fucking time, but god damn man.
"GROGAN: When's the last time you, what's the last time you had your last drink? [¶] . . . [¶]
"[DEFENDANT]: Oh well about 45 minutes ago, solid.
"GROGAN: 45 minutes ago?
"[DEFENDANT]: A solid 45 minutes ago.
"GROGAN: Okay. [¶] . . . [¶]
"[DEFENDANT]: . . . I was at a green light.
"GROGAN: Yeah.
"[DEFENDANT]: Turned yellow, as soon as got the, as soon I got to the line it turned yellow."
The jury also listened to an audio recording of defendant's interview at Kern Medical Center. The following exchange occurred:
"Diederich: Okay. How many beers did you have from the time you started drinking last night until you left in [the GMC Sierra]?
"[Defendant]: Six.
"Diederich: Now are we talking cans, cups, bottles?
"[Defendant]: Cans.
"Diederich: Six cans, 12-ounces?
"[Defendant]: Yeah . . . . [¶] . . . [¶] . . . [A]nd two glasses of wine. [¶] . . . [¶]
"Diederich: What time did you start drinking? You said you had the wine first? What time was that around?
"[Defendant]: I wanna say 7:00 or 8:00.
"Diederich: Seven or eight at night?
"[Defendant]: Uh-huh.
"Diederich: And that was with dinner?
"[Defendant]: Uh-huh . . . . [¶] . . . [¶]
"Diederich: What time did your buddies start showing up?
"[Defendant]: About 8:00, 8:30, an, an hour after we got done, cleaned up the kitchen of dinner.
"Diederich: So . . . . [¶] . . . [¶] . . . in my understanding probably between then eight o'clock and I'm guessing you probably left your place around 12:30ish . . . . [¶] . . . [¶] . . . in the morning?
"[Defendant]: Uh-huh.
"Diederich: So, about in the four hour, four-and-a-half hour span is when you had the six beers?
"[Defendant]: Uh, not at first. [¶] . . . [¶] . . . [W]e started cracking open the beer just about an hour into it, and I'm a slow drinker at first, but after, after two to three, and then I started drinking a little bit, a little bit faster, by the time I started drinking a little bit faster they, they're, they're out. [¶] . . . [¶]
"Diederich: Okay, so then maybe between nine o'clock and 12:00 or 12:30 is that when you think you probably drank all six of those? Is that safer to say that?
"[Defendant]: Nah, I'd probably say in the last hour.
"Diederich: You drank all six in an hour?
"[Defendant]: No, not in an hour about an hour-and-a-half. [¶] . . . [¶]
"Diederich: Okay. So, you're heading westbound [on Fairview Road], . . . you're coming up to the intersection on Monitor.
"[Defendant]: Uh-huh.
"Diederich: When was the first time you looked at the light? Right as you got . . . the signal light, I mean, did you notice it way back, probably?
"[Defendant]: Oh, yeah, yeah, yeah, way back, you know. It was, it was red way back though. [¶] . . . [¶] . . . [S]ay here's the intersection and it turned green as soon as I was, I was probably maybe a solid hundred-and-fifty-f[ee]t away.
"Diederich: Okay.
"[Defendant]: A solid hundred-and-fifty f[ee]t away. Right. I was, I was braking and then as soon as soon as it turned green I gave it gas and I get back at the speed. . . .
"Diederich: Uh-huh.
"[Defendant]: I saw the headlights coming.
"Diederich: Which way were they coming?
"[Defendant]: . . . Uh, from north to southbound.
"Diederich: They were southbound . . . ?
"[Defendant]: Yeah . . . . [¶] . . . [¶]
"Diederich: . . . I just want to make sure we're clarifying stuff. So, you're westbound.
"[Defendant]: Right.
"Diederich: You see . . . this set of headlights coming from your right side then, the passenger side of your vehicle.
"[Defendant]: Passenger side of my vehicle.
"Diederich: So, it's coming southbound. [¶] . . . [¶]
"[Defendant]: Right.
"Diederich: Okay.
"[Defendant]: And so, by the time - as soon as I saw them lights, I hit the brakes, and as soon as I hit them . . . , I couldn't, I couldn't stop my truck. My truck was just - it's just big. [¶] . . . [¶]
"Diederich: Big tires, it's a lot to stop. I know.
"[Defendant]: Lot, you know, and that car was steady pace. [¶] . . . [¶]
"Diederich: How fast do you think it was going?
"[Defendant]: Faster than I was. . . .
"Diederich: Can, can you throw a number at it or if you can't, you can't. I'm just asking.
"[Defendant]: Maybe 55.
"Diederich: Fifty-five, okay. [¶] . . . [¶]
"[Defendant]: . . . [I]t might be going a little over the speed limit than what, what it was.
"Diederich: Okay. [¶] . . . [¶]
"[Defendant]: I hit 'em, and I felt bad, and 'cause by the time I noticed, I noticed the car, man, I, I just said, fuck. You know, and then when I got out of the car that's when I was like I've been drinking, and I just said I'll take the responsibilities, be a man, I'm not gonna run 'cause I felt - 'cause it doesn't matter if it's their fault or my fault or whatever I just feel bad. Totally feel bad, and I'll take the responsibility.
"Diederich: Okay. [¶] . . . [¶]
"[Defendant]: I take full responsibility.
"Diederich: I appreciate that. Okay, so, some things we're dealing with here. Clearly, you've told me you were drinking . . . . [¶] . . . [¶] . . . at the house before you left. Do you think that the fact that you were drinking beers before you [left the] house and got in your car and drove, do you think the amount of beer you had whether you want to call it your level of impairment, intoxication, whatever, do you think that played any part in this crash at all?
"[Defendant]: Tell you the truth, no. [¶] . . . [¶]
"Diederich: Have you ever been arrested for DUI before?
"[Defendant]: Wet and reckless.
"Diederich: When was that?
"[Defendant]: Almost seven years ago. [¶] . . . [¶]
"Diederich: Okay. From what you understood whether life experience watching movies in . . . classes, friends talking to you, reading it on billboards whatever, whatever experience you had in it, do you know that drinking alcohol does impair your judgment? Have you ever heard that or do you know that?
"[Defendant]: Well, yeah, if you're drunk or very intoxicated or the way how you do extra things or the way you talk, you know, but that night, last night -
"Diederich: What, what I'm getting at is I'm trying, I'm trying to talk to you about it because most of us are gown up being taught in some form or another especially those that have been in trouble for offenses involving driving and alcohol before - [¶] . . . [¶] . . . You kind of get explained to you that, hey, this is a bad idea. It's dangerous. It[] slows your reaction times; slows your perception times. It impairs you. That's why they call it being impaired or being intoxicated. It impairs your ability to perceive and re-act to situations to respond to them appropriately -
"[Defendant]: No, I was pretty quick on it. [¶] . . . [¶] . . . I was pretty fast. I was real fast on it. [¶] . . . [¶]
"Diederich: What I'm getting at is, do you know, as a man that by drinking you have impaired yourself in some manner or another? There's different levels of that, clearly, I mean if you drank . . . . [¶] . . . [¶] . . . an 18-pack versus the six you drank?
"[Defendant]: Right.
"Diederich: You're gonna be way more fucked up, right?
"[Defendant]: Right. [¶] . . . [¶]
"Diederich: You're not sober, you're not sharp, you're not with it. You are slowed down a little bit, right? Okay, and I'm not talking about whether you could have braked or not at this point. I'm just saying, do you know that . . . when you drink it is dangerous, and it does impair your ability to do things? Would you consider it a good idea to drink and drive?
"[Defendant]: No, not any more. I learned my lesson already. [¶] . . . [¶]
"Diederich: You agree, you agree with me that you know that drinking and driving can be dangerous?
"[Defendant]: Right. [¶] . . . [¶] . . . You know I fucked up. I fucked - yeah. I'm - I can't change it.
"Diederich: I'm glad that you can admit that. [¶] . . . [¶] . . . Well, just to clarify a couple of things with you . . . , on kind of the way this thing went down, um, you told me you're westbound. We've established that . . . . [¶] . . . [¶] . . . to be a true fact. Your information to me is that vehicle was coming from your right which would have put them southbound [on Monitor Street].
"[Defendant]: Uh-huh.
"Diederich: Everything else we've got evidence wise, and the statements of people in that vehicle, and the evidence of the damage to that vehicle is that vehicle was northbound.
"[Defendant]: Northbound?
"Diederich: You hit right on the passenger side where the right side of the car.
"[Defendant]: I could, I could swear I saw a car, a car coming - [¶] . . . [¶] . . . 'Cause I saw, I saw a car coming from [the right] - [¶] . . . [¶] . . . Wow. [¶] . . . [¶] . . . All I saw - that's, that's the only thing that I saw was a car coming - [¶] . . . [¶]
"Diederich: . . . [W]hat we need to get to here, is the meat and potatoes of this deal, okay. [¶] . . . [¶] . . . The car that you ran into . . . . [¶] . . . [¶] . . . [h]ad three people in that car. [¶] . . . [¶] . . . Okay. Three females. One of those females who's sittin' in the front passenger seat, right where the front of your truck hit . . . . [¶] She did not survive. Joseph. There's more to this Joseph.
"[Defendant]: I'm done. I'm done.
"Diederich: Listen to me Joseph.
"[Defendant]: I'm done. I can't see my wife -
"Diederich: Joseph. That young lady was very pregnant. [¶] . . . [¶] . . . Hold on. She was within a month or two of delivering that child, very pregnant. Obviously, mom didn't make it neither did the baby. I can see by your reaction right now you get that that's a big deal.
"[Defendant]: Yeah.
"Diederich: It's a huge deal. [¶] . . . [¶]
"[Defendant]: Just put me on (unintelligible) just death penalty. Just sign me up for it. [¶] . . . [¶]
"Diederich: You understand now the gravity of this situation? It's a big deal. Decisions you made tonight directly contributed to that young lady losing her life. Would you agree?
"[Defendant]: Yep. No doubt about it.
"Diederich: The choice to drink alcohol get behind the wheel of a vehicle -
"[Defendant]: And take two people['s] [lives] . . . that don't even deserve it . . . . [¶] . . . [¶]
"Diederich: You understand why . . . . [¶] . . . [¶] . . . why you're responsible for what happened tonight?
"[Defendant]: Oh, I do, a hundred percent.
"Diederich: You said you're gonna make sure your friends understand this. What caused this crash tonight? What caused it?
"[Defendant]: Alcohol.
"Diederich: Alcohol mixed with what?
"[Defendant]: Driving.
"Diederich: There's a reason it's against the law, Joseph.
"[Defendant]: Yes, sir.
"Diederich: Because it's dangerous.
"[Defendant]: Yes, sir. Aw, fuck."
Ruvalcaba retook the witness stand. She estimated a 5-foot-11-inch, 173-pound male who consumed two glasses of wine sometime between 7:00 and 8:00 p.m. and six 12-ounce cans of beer at around 11:10 p.m.; was involved in an automobile collision at 12:40 a.m.; and had blood drawn at 2:55 a.m., the analysis of which revealed a BAC of 0.16 percent, would have had a BAC between 0.16 and 0.21 percent at the time of the collision. She adjusted the projected BAC to between 0.15 and 0.20 percent on the assumption the subject completed the final beer 45 minutes before the collision.
DISCUSSION
I. Standard of review.
"We review defendant's claims of instructional error de novo. [Citations.] 'In conducting this review, we first ascertain the relevant law and then "determine the meaning of the instructions in this regard." [Citation.] [¶] The proper test for judging the adequacy of instructions is to decide whether the trial court "fully and fairly instructed on the applicable law . . . ." [Citation.] " 'In determining whether error has been committed in giving or not giving jury instructions, we must consider the instructions as a whole . . . [and] assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given. [Citation.]' " [Citation.] "Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation." [Citation.]' [Citation.]" (People v. Johnson (2009) 180 Cal.App.4th 702, 707.)
II. The trial court's refusal to give defendant's requested pinpoint instruction did not amount to prejudicial error.
a. Background.
Defendant was charged with gross vehicular manslaughter while intoxicated on count 3. Section 191.5, subdivision (a), reads in pertinent part:
"Gross vehicular manslaughter while intoxicated is the unlawful killing of a human being without malice aforethought, in the driving of a vehicle, where the driving was in violation of [s]ection . . . 23152 . . . or 23153 of the Vehicle Code, [i.e., DUI or DUI causing bodily injury to another
person,] and the killing was . . . the proximate result of the commission of an unlawful act, not amounting to a felony, and with gross negligence . . . ."The information alleged Vanessa's death was the proximate result of defendant's failure to stop for a circular red signal (Veh. Code, § 21453, subd. (a)) and/or his driving at an unsafe speed (id., § 22350).
Defense counsel proposed the following "Defendant's Special Instruction No. 1" with respect to the allegation he violated Vehicle Code section 21453, subdivision (a):
"A driver facing a circular green signal must proceed through the intersection. A driver facing a steady circular red signal alone must stop at a marked limit line or before entering a crosswalk and must remain stopped until an indication to proceed is shown. A driver entering an intersection must yield the right-of-way to other traffic lawfully within the intersection. A driver who has entered an intersection against a red signal is not lawfully within the intersection.The court declined to give the requested instruction, finding the language "went a little bit too far." It explained:
"At an intersection controlled by an electric traffic signal, a driver entering the intersection facing a green signal is not required to look into the cross streets for a vehicle that might enter the intersection in violation of the signal.
"Where the movement of traffic at an intersection is governed by signaling devices, the determination as to whether one driver or the other caused a collision at the intersection depends upon whether one vehicle or the other was being operated in conformity with the signal."
"I think the situation . . . is simply this . . . . [T]he People are relying on two infractions, . . . and what we have done in this case is I made a modified [CALCRIM No. 595 (Vehicular Manslaughter: Traffic Laws Defined)] . . . . [It] obviously has the elements . . . [of] the basic speed law infraction, and I have included . . . the elements of [Vehicle Code section] 21453[, subdivision ](a) which are pretty simple . . . .
". . . In looking at [modified CALCRIM No.] 595, with regards to [a] violation [of Vehicle Code section 21453, subdivision (a)], we did indicate . . . defendant while driving a vehicle fac[ed] a red circular signal and failed to stop at or near the crosswalk before entering the intersection or
failed to remain stopped until an indication to proceed was shown, so as indicated, I think it pretty much covers it.
". . . [U]nder the instruction either he entered on a green light, and if he did, . . . he's not in violation of this infraction. And if he didn't enter on a green light and he entered on a red light, he is in violation, so I don't see how that really changes, in essence, [with] what you put in your special instruction. Either they are going to find he entered on a red or he entered on a green, . . . certainly there's evidence as to both ways . . . ."
Prior to deliberations, the court issued the modified CALCRIM No. 595 to the jury:
"This is [CALCRIM No.] 595. Violation of . . . failure to stop for a red light, that's Vehicle Code [s]ection 21453(a). To prove that the defendant committed a violation of this law, the People must prove that, one, the defendant while driving a vehicle, two, faced a red circular signal. And, three, failed to stop at or near the crosswalk before entering the intersection or failed to remain stopped until an indication to proceed was shown."
In her summation, the prosecutor reviewed the elements of a Vehicle Code section 21452, subdivision (a), violation:
"I have to prove that [defendant] was driving a vehicle which we know he was and that he was facing a red light, okay? And we know that . . . Coleman had the green light and only one person in that intersection could have a green light and that he failed to stop . . . at the limit line and he did not stop prior to the limit line for the red light . . . ."
In his summation, defense counsel presented his theory that defendant had a green light at the time of the collision:
"[T]he determination on who caused the accident is really who had the red light at the time of entering the intersection. The direct evidence that we have on who ran the red light is fairly limited - limited really to the statements of . . . Coleman and [defendant] that they each had the green light, and there's nobody else that can come in here and say what color the lights were.
"And there is some other circumstantial evidence that can cut one way or the other, the data that came from the [EDR] will not directly tell you [who] had the green light or the red light, but the data can be
interpreted in ways that either tend to support or refute one version. The signal functioning . . . is also circumstantial evidence that could support one having the red light and the other having the green light and other statements besides just who had the green light.
"Another thing that's important to remember, though, is you have to look at all the evidence as a whole. You're not just looking at isolated pieces, so when you look at all the evidence as a whole, and it's especially important in this case, because that's when you see all the pieces that are connected to show that [defendant] had the green lights. [The prosecutor] talked about this a little bit already in evaluating credibility, because the direct evidence is really just from two people. Their credibility is important obviously. . . . [W]e can see, because it's obvious that [defendant] has motives to be dishonest, because of the consequences to him if he's found guilty, and that's the same as any criminal defendant. He's not in a unique position, but . . . Coleman has a motive to be dishonest as well, because she's not sitting here with [defendant], but from the very beginning she would have a motive to be dishonest to avoid any potential legal consequences or to avoid the realization that her conduct led to the death of her pregnant friend. [¶] . . . [¶]
"We do have some objective evidence to use to . . . corroborate one version or the other, one of them being the data that comes from the EDR or the black boxes . . . . [I]t's consistent with [defendant's] testimony and statements regarding the light colors, the cycling and the braking, and it's also consistent with a driver who['s] paying attention, because there is braking and there's evidence of some reaction to changes on the road. The data from . . . Coleman's car on the one hand, yes, it could be consistent with somebody who is driving cautiously, but . . . not everybody who runs a red light is doing so, because they are taking a risk or they are driving fast, and they just don't care. Sometimes it's just something that happens. . . .
"Now, connect . . . what the data shows, and what she actually admitted to you, she never applied the brakes and she didn't actually see the truck even though she could have . . . one and a half seconds earlier, and she didn't even see [defendant]'s truck approach . . . . This is what [defendant] told Officer Diederich on the night of the collision. He said the light was initially red, and he applied the brakes and turned . . . back to green . . . , and then he applied the brakes quickly again after he saw . . . Coleman.
"Common sense comes in here again in these kinds of situations where you're making determinations about credibility. If he was just making this up, and he knew that he had the red light, and he wasn't paying
attention at all, why wouldn't he just say that he had the green light the whole way? That's the simpler story that he's going to put out there if you're making something up. . . .
"Also, . . . at the hospital five, six hours after the collision, how could he have guessed what the EDR data is going to show? And it's not just his testimony lined up to the EDR data after he was exposed to it or after it was displayed in court, this is a statement back before any of the data was actually downloaded from the car. . . . [W]hy would this version match the perceived functioning of the signal? [¶] . . . [¶]
"Now, I want to move in right now just to the signal functioning evidence, because this is a huge part of the evidence . . . and we're not arguing here, and giving you an exact recreation of the collision. . . . [B]ut it doesn't have to be an exact recreation to be useful especially in the way that the signals are observed to function.
". . . [W]hat we do know is that the observations remained relatively consistent, and in important ways over four dates in August, October, November, and again in April of 2015, so even though it appears to function in a way that's different from how it's programmed to function, at least in the engineering department, it's not a fluke, and we didn't go out there just on one night, and it happened to be working this way, and we're coming in here saying this is the way it works, because it supports our defense. It was happening that way over time . . . . [¶] . . . [¶]
". . . What's key in the maintenance evidence is that there's no specific evidence that can be pointed to that there were actual changes . . . , and it would be a different situation if they can come in here and there were records of observations that say, you know, it worked in exactly this way in January, and it was changed in this specific way at this point in time, and that's why you're seeing it work this way.
"If there was various specific evidence like that, this evidence would have less value. But we don't have that. There's no evidence that the signal programming has changed the advanced detection for westbound Fairview [to] trigger the light to change from red to green. . . . Wenino says that's not how it works, but the actual observations at the signal prove otherwise, and there's also no specific evidence that the signal programming was changed to make the signal recall to green from eastbound Fairview when no cars are present. [¶] . . . [¶]
". . . Now, what does the evidence show and why is it important? . . . [W]hat you see happening is that when there are no cars present and
there was no evidence that there were any other cars present or default to eastbound Fairview straight through and left turn green, meaning the rest of the signals would be red in that state, so as the car is approaching from westbound Fairview, and as the car is approaching from northbound Monitor in that state where there are no other cars around, from what we can see the signal doing on these several nights over a period of months, the signal would be red for each person approaching.
"And as [defendant] said, as he was approaching, he did see a red signal as he was approaching . . . . And, again, we're not saying that we can absolutely recreate what happened on that night, but this evidence gives clues as to which statement is credible and which is not, so when . . . Coleman says that she was driving up and saw a green light . . . all the way through the intersection when we know that the observed functioning would be that it remained red, and the cars that actually approached would have to actually stop at the limit line, and there's no evidence that she did that either from the EDR or from her own testimony before the signal changed to green that's inconsistent with her statement."
"But the observations are consistent with [defendant's] version . . . ."
b. Analysis.
"A defendant is entitled to a pinpoint instruction, upon request, only when appropriate. [Citation.] 'Such instructions relate particular facts to a legal issue in the case or "pinpoint" the crux of a defendant's case, such as mistaken identification or alibi. [Citation.] They are required to be given upon request when there is evidence supportive of the theory, but they are not required to be given sua sponte.' [Citations.]" (People v. Gutierrez (2009) 45 Cal.4th 789, 824.) "A trial court may properly reject an instruction proposed by the defendant if the instruction incorrectly states the law; is argumentative, duplicative, or potentially confusing; or is not supported by substantial evidence." (People v. Zaragoza (2016) 1 Cal.5th 21, 53.)
An individual violates Vehicle Code section 21453, subdivision (a) when (1) while driving a vehicle; (2) he or she faced a steady circular red signal; and either (3) (a) failed to stop (1) at the marked limit line, (2) at the near side of the crosswalk before entering the intersection, or (3) before entering the intersection; or (b) failed to remain stopped until an indication to proceed was shown. (People v. Gray (2011) 199 Cal.App.4th Supp. 10, Supp. 14, affd. (2012) 204 Cal.App.4th 1041.) The court modified CALCRIM No. 595 to include these elements. Defendant, however, argues the court should have given its requested pinpoint instruction instead because it (1) correctly stated the law; (2) was not argumentative; (3) was not duplicative; and (4) was supported by substantial evidence.
Assuming, arguendo, the court should have given defendant's requested pinpoint instruction, such an error is prejudicial "only if 'the [appellate] court, "after an examination of the entire cause, including the evidence," is of the "opinion" that it is reasonably probable that a result more favorable to [defendant] would have been reached in the absence of the error.' " (People v. Wharton (1991) 53 Cal.3d 522, 571, quoting People v. Watson (1956) 46 Cal.2d 818, 836.) Here, although defendant asserts the modified CALCRIM No. 595 "presumed the signal lights functioned properly and it was impossible for two directions to have green lights at the same time" and "limited the scope of what the jury could consider," in our view, nothing in the language actually precluded the jury from finding defendant's light was green at the time of the collision on account of "signal malfunctions and the possibility that both drivers had green lights, and/or that the westbound Fairview signal cycled to green prematurely." Furthermore, defense counsel's closing argument explicated the theory that defendant had a green light, relying on witnesses' observations of the traffic lights at the Monitor Street-Fairview Road intersection and the EDR data to bolster defendant's version of what transpired as well as undermine Coleman's credibility. (See, e.g., People v. Gutierrez (2002) 28 Cal.4th 1083, 1144; People v. Hughes (2002) 27 Cal.4th 287, 363; People v. Wharton, supra, 53 Cal.3d at p. 572.) The jury, by its guilty verdict, necessarily rejected the theory.
In his opening brief, defendant "acknowledges that the failure to give a proposed instruction generally is governed by the Watson standard" and "recognizes that case law holds that if a case is strong, defense counsel's argument pinpoints the defense, and other instructions sufficiently cover the issue, the failure to give an instruction is considered harmless." Nonetheless, he claims the purported error should be reviewed for prejudice under the beyond-a-reasonable-doubt standard of Chapman v. California (1967) 386 U.S. 18 because the court's refusal to give the requested pinpoint instruction "impermissibly infringe[d] on" his "fundamental due process right to present a complete defense." We disagree. To reiterate, the defense was fully presented to the jurors during summation and nothing in the modified CALCRIM No. 595 precluded them from crediting said theory.
Even assuming, arguendo, the jury would have found defendant had a green light but for the purported instructional error, it is not reasonably probable the jury would have rendered a more favorable verdict. As noted, in connection with count 3, the information alternatively alleged Vanessa's death was the proximate result of defendant's driving at an unsafe speed. The modified CALCRIM No. 595 contained the elements of this violation:
"[V]iolation of basic speed law, and that's Vehicle Code [s]ection 22350. To prove that the defendant committed a violation of this law, the People must prove that, one, the defendant drove a vehicle on a highway. And, two, the defendant [drove] faster than a reasonable person would have driven considering the weather[,] visibility, traffic[,] and conditions of the highway or at a speed that endangered the safety of other people or property."The record demonstrates the speed limit at the Monitor Street-Fairview Road intersection is 45 miles per hour in all directions. Notwithstanding defendant's claim he drove 45 to 50 miles per hour, the EDR data showed he drove at a speed of 64 miles per hour 2.5 seconds prior to the collision; 63 miles per hour two seconds prior to the collision; 62 or 63 miles per hour 1.5 seconds prior to the collision; 58 or 62 miles per hour one second prior to the collision; and 53 or 55 miles per hour half a second prior to the collision. In addition, Maxwell's testimony indicated defendant was revving, burning out, and driving at least 70 miles per hour at the South Union Avenue-Fairview Road intersection, a half-mile east of the accident scene.
III. The trial court did not err when it gave CALCRIM Nos. 2101 and 2111, which permitted the jury to infer defendant had a BAC of or in excess of 0.08 percent at the time of the collision from a blood test taken within three hours of said collision.
a. Background.
Prior to deliberations, the court gave the jury CALCRIM Nos. 2100 (Driving a Vehicle or Operating a Vessel Under the Influence Causing Injury); 2101 (Driving With 0.08 Percent Blood Alcohol Causing Injury); 2110 (Driving Under the Influence); and 2111 (Driving With 0.08 Percent Blood Alcohol). He said:
"If the People have proved beyond a reasonable doubt that the defendant's [BAC] was 0.08 percent or more at the time of the chemical analysis, you may, but are not required to[,] conclude that the defendant was under the influence of an alcoholic beverage at the time of the alleged offense. [CALCRIM Nos. 2100, 2110.]"And:
"If the People have proved beyond a reasonable doubt that a sample of the defendant's blood was taken within three hours of the defendant's driving, and that chemical analysis of the sample showed a [BAC] at 0.08 percent or more, you may, but are not required to[,] conclude that the defendant's [BAC] was at 0.08 percent or more at the time of the alleged offense. [CALCRIM Nos. 2101, 2111.]"
Earlier, during the jury instruction conference, defense counsel objected to "the .08 or higher permissive [inference] portion" of the aforementioned instructions. He contended:
"[M]y arguments are based upon People v. Beltran (2007) 157 Cal.App.4th 235 (Beltran) . . . , and I believe th[at] give[n] the state of the evidence in this case, the expert's testimony, especially the defense expert that there's evidence that the [BAC] of [defendant] was rising at the time of his driving. And the fact that the blood sample which is the evidentiary sample is not taken for approximately two hours and 15 minutes after the collision occurred, that there is not sufficient proof to show that there's a rational[] connection between . . . the [BAC] at 2:55, and the actual [BAC] that [defendant] had at the time he was driving which is the point in time that's relevant obviously for determining whether or not his [BAC] was 0.08 percent or higher, and I believe that based upon all of that, I understand that
the Beltran case is somewhat distinguishable, and both experts gave ranges that included at least portions that were under [0].08 [percent], but I think that the important part is that there was evidence of rising [BAC] which tends to negate the connection that the permissive inference allows . . . ." (Italics added.)The court rejected defense counsel's request to strike the paragraphs. It reasoned:
"[N]umber one, the case is distinguishable from Beltran, but more importantly Beltran does indicate that it's permissible even if there's evidence that would show the [BAC] might be under the [0].08 [percent] just to give the instructions, and . . . it should be done on a case by case [basis]. The concern being whether or not there's the risk that the jury would simply decide the issue based on their particular case is the way things evolved ultimately with putting on your expert . . . Clardy.
"The way we proceeded was . . . Clardy testified, . . . Ruvalcaba testified, and that was the People's expert, and . . . Clardy testified, and I think . . . Ruvalcaba may have testified again. But, in any event, the jurors got to hear back to back these witnesses refute and g[i]ve their opinions, and the basis as to what they thought the [BAC] w[as].
"And, certainly, I think there's substantial evidence from which the jury could conclude, you know, one way or the other obviously, it's up to them as to what they accept, but the point simply being, I don't see this as a case where there's a danger[ous] issue of them simply relying on the permissive [inference] as we had extensive [testimony] and one after the other, and I don't see that as an issue in this particular case, so I'm going to allow wherever it does appear in the instructions, so it is going to be part of those instructions." (Italics added.)
We reformatted the citation in the quoted text to conform to the general rules of citation outlined by the California Style Manual. (See generally Cal. Style Manual (4th ed. 2000).)
b. Analysis.
In his opening brief, defendant challenges language in CALCRIM Nos. 2101 and 2111 only. Accordingly, we limit our analysis to these instructions.
" 'An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the action.' " (People v. McCall (2004) 32 Cal.4th 175, 182-183, quoting Evid. Code, § 600, subd. (b).) "[A] determination of whether . . . inferences offend due process varies from case to case, and turns on the ultimate test of whether use of the 'device' undermines the jury's responsibility to find the ultimate facts beyond a reasonable doubt." (Beltran, supra, 157 Cal.App.4th at p. 244, citing Ulster County, supra, 442 U.S. at p. 156.) "[T]he prosecution's burden of proving guilt beyond a reasonable doubt is not improperly shifted from the prosecution to the defense unless, 'under the facts of the case, there is no rational way the trier could make the connection permitted by the inference. For only in that situation is there any risk that an explanation of the permissive inference to a jury, or its use by a jury, has caused the presumptively rational factfinder to make an erroneous factual determination.' " (Beltran, supra, at pp. 244-245, quoting Ulster County, supra, at p. 157.)
"There is no substantive difference between the 'inference' defined in Evidence Code section 600, subdivision (b) and the 'permissive presumption' defined by the high court in Ulster County." (People v. McCall, supra, 32 Cal.4th at p. 183, fn. omitted; see Ulster County Court v. Allen (1979) 442 U.S. 140, 157 (Ulster County) ["The most common evidentiary device is the entirely permissive inference or presumption, which allows - but does not require - the trier of fact to infer the elemental fact from proof by the prosecutor of the basic one and which places no burden of any kind on the defendant."].)
"[I]n most cases, the inference is merely one piece of evidence the prosecution relies on to prove guilt beyond a reasonable doubt. In those instances, if the prosecution relies on a permissive inference as evidence of the defendant's guilt, but offers other evidence of the defendant's guilt, there need be only a ' "substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend." ' " (Beltran, supra, 157 Cal.App.4th at p. 245, italics omitted, quoting Ulster County, supra, 442 U.S. at p. 166, fn. 28.) "Where the permissive inference is the only evidence offered by the prosecution to prove an essential element of the offense, and the jury finds the defendant guilty, it necessarily follows that the jury relied solely on the inference in order to convict. Consequently, the presumed fact must follow from the proved fact beyond a reasonable doubt." (Beltran, supra, at p. 245.)
In Beltran, at approximately 3:00 a.m., Beltran was pulled over by a California Highway Patrol (CHP) officer for speeding and weaving between lanes. With Beltran's consent, the officer obtained breath samples with a PAS device at 3:46 and 3:48 a.m. Both times, the PAS device registered a BAC of 0.08 percent. (Beltran, supra, 157 Cal.App.4th at p. 238.) Starting at 4:12 a.m., after Beltran's arrival at the police station, two additional breath samples were obtained with an intoxilyzer. Both times, the intoxilyzer registered a BAC of 0.10 percent. (Id. at pp. 238-239.) Beltran was subsequently charged with misdemeanor driving with a BAC of 0.08 percent or more, inter alia. (Id. at p. 239.)
At trial, the prosecution's expert witness considered the PAS results and opined Beltran's BAC was 0.068 percent at the time he was pulled over. Later, when she considered both the PAS and intoxilyzer results, she adjusted the projected BAC to between 0.068 and 0.095 percent. (Beltran, supra, 157 Cal.App.4th at p. 239.) On the other hand, the defense's expert witness considered the PAS and intoxilyzer results and opined Beltran's BAC was 0.06 percent when he was pulled over. Furthermore, he disputed "the upper end of the range" presented by the prosecution's expert witness "because it would require [Beltran]'s BAC to decrease and then to increase again over a short period of time without further alcohol consumption." (Ibid.) Prior to deliberations, the court gave the jury CALJIC No. 12.61.1 (Driving With 0.08 Percent or More - Inference), which stated:
CALJIC No. 12.61.1 is the counterpart of CALCRIM No. 2111. (Beltran, supra, 157 Cal.App.4th at p. 242.)
" 'If the evidence establishes beyond a reasonable doubt that (1) a sample of defendant's blood, breath or urine was obtained within three hours after he operated a vehicle and (2) that a chemical analysis of the sample
establishes that there was 0.08 percent or more, by weight, of alcohol in the defendant's blood at the time of the performance of the chemical test, then you may, but are not required to, infer that the defendant drove a vehicle with 0.08 percent [or more,] by weight, of alcohol in the blood at the time of the alleged offense.' " (Beltran, supra, 157 Cal.App.4th at p. 239.)The jury found Beltran guilty as charged. (Id. at p. 240.)
On appeal, Division Four of the First Appellate District concluded "there was no rational connection between the proved fact and the fact to be inferred sufficient to justify giving CALJIC No. 12.61.1." (Beltran, supra, 157 Cal.App.4th at p. 238.) It reasoned:
"In this case, the sole evidence upon which the jury could have concluded that [Beltran] had a BAC of 0.08 percent or greater when he was driving was the inference of that fact from a blood-alcohol test administered within three hours of driving that revealed a BAC of 0.08 percent or greater at the time of the test. . . . [B]ecause the permissive inference was the sole evidence used to convict, the connection between the proved fact and the inferred fact had to be established beyond a reasonable doubt, in order to pass constitutional muster.
"Here, the PAS tests administered at times significantly later than when [Beltran] was stopped, which the parties stipulated were reliable, indicated a BAC of 0.08 percent. The later intoxilyzer tests showed a BAC of 0.10 percent. Thus, while in isolation either the PAS tests or the intoxilyzer tests were sufficient to allow for the inference permitted by CALJIC No. 12.61.1, together they show that [Beltran]'s BAC was rising from the time he was stopped until the intoxilyzer tests were administered. This circumstance is a classic example of the well-recognized defense in DUI cases known as the 'rising blood-alcohol' defense. [Citations.] [¶] . . . [¶]
"Additionally, both parties' expert witnesses hypothesized that, assuming the reliability of the PAS test results, [Beltran]'s BAC was under 0.08 percent when he was driving. . . . [¶] . . . [¶]
"Taken as a whole, the connection between the proved fact (test result demonstrating a BAC of 0.08 percent or greater within three hours of driving) and the inferred fact (BAC of 0.08 percent or greater at the time of driving), which is an element of the charged crime, was not established beyond a reasonable doubt. Therefore, instructing the jury with CALJIC No. 12.61.1 was constitutional error that improperly lowered the prosecution's burden of proof. [¶] . . . [¶]
"There is no reasonable doubt that in this case the jury relied on the inference to convict. Indeed, as we have made abundantly clear already, the permissive inference was the only evidence used to establish [Beltran]'s guilt of a violation of Vehicle Code section 23152, subdivision (b). Moreover, because [Beltran]'s BAC was rising after the first test was administered, there was strong forensic evidence indicating that [his] [BAC] was below 0.08 percent when he was stopped by police. Without belaboring the matter further, under these circumstances it cannot be said beyond a reasonable doubt that the jury did not infer that [Beltran]'s BAC was at least 0.08 percent, as erroneously instructed by CALJIC No. 12.61.1. . . ." (Beltran, supra, 157 Cal.App.4th at pp. 245-248, fns. omitted.)Accordingly, the court reversed the conviction. (Id. at p. 248.)
Defendant argues "Beltran compels the conclusion that the permissive inference instruction was error and undermined the jury's responsibility or lowered the prosecution's burden of proof and thereby denied [him] due process." We disagree. Assuming, arguendo, the permissive inference was the sole evidence upon which the jury could have concluded defendant had a BAC of or in excess of 0.08 percent at the time of the collision, we believe the rational connection between this inferred fact and the proved fact, i.e., defendant had a BAC of or in excess of 0.08 percent at the time of a blood-alcohol test administered within three hours of the collision, was established beyond a reasonable doubt. In the instant case, defendant drank two glasses of wine during dinner sometime between 7:00 p.m. and 8:00 p.m. He then started drinking beer with visitors a few hours later, finishing six 12-ounce cans of beer over a one-and-a-half-hour interval. The collision occurred at approximately 12:30 or 12:40 a.m. Although defendant testified he finished the last can "10, 15 minutes" before the accident, in an interview with Grogan at the scene, he admitted he finished the last can "[a] solid 45 minutes ago," or approximately 12:10 a.m. The PAS device registered a BAC of 0.16 percent at 1:08 a.m. and the blood test registered a BAC of 0.16 percent at 2:55 a.m. On the assumption defendant drank his last can of beer 45 minutes before the collision, (1) Ruvalcaba, the prosecution's expert witness, hypothesized defendant's BAC would have been between 0.15 and 0.20 percent at the time of the collision; and (2) Clardy, the defense's expert witness, hypothesized defendant's BAC would have been between 0.09 and 0.10 percent at the time of the collision. (Cf. Beltran, supra, 157 Cal.App.4th at p. 239 [both parties presented expert testimony suggesting Beltran's BAC was below the legal limit at the time he was driving].)
IV. There was no cumulative error.
"[A] series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error." (People v. Hill (1998) 17 Cal.4th 800, 844.) "A claim of cumulative error is in essence a due process claim . . . ." (People v. Rivas (2013) 214 Cal.App.4th 1410, 1436.) " 'The "litmus test" for cumulative error "is whether defendant received due process and a fair trial." ' " (Ibid.) "[T]he reviewing court must 'review each allegation and assess the cumulative effect of any errors to see if it is reasonably probable the jury would have reached a result more favorable to [the] defendant in their absence.' " (People v. Williams (2009) 170 Cal.App.4th 587, 646.)
Having reviewed and analyzed each alleged error, we cannot conclude the cumulative effect was such that defendant was deprived of due process and a fair trial. Therefore, we reject the argument.
V. There is a clerical error in the abstract of judgment.
As noted, defendant was sentenced to 15 years to life on count 1 and a concurrent 15 years to life on count 2, inter alia. On page 1 of the abstract of judgment filed July 29, 2015, however, both checkbox 5 ("LIFE WITH THE POSSIBILITY OF PAROLE") and checkbox 6a ("15 years to Life") were marked in connection with counts 1 and 2. Both defendant and the Attorney General agree checkbox 5 was erroneously marked and must be corrected.
"When an abstract of judgment does not reflect the actual sentence imposed in the trial judge's verbal pronouncement, [an appellate] court has the inherent power to correct such clerical error on appeal, whether on [its] own motion or upon application of the parties." (People v. Jones (2012) 54 Cal.4th 1, 89.)
DISPOSITION
The matter is remanded to the trial court with directions to correct the abstract of judgment by striking the mark in checkbox 5, issue a new abstract of judgment reflecting this correction, and forward a copy of the corrected abstract of judgment to the appropriate authorities. In all other respects, the judgment is affirmed.
/s/_________
DETJEN, Acting P.J. WE CONCUR: /s/_________
PEÑA, J. /s/_________
SMITH, J.