Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. SF014576A Louis P. Etcheverry, Judge.
Peggy A. Headley, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and David A. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gomes, Acting P.J.
A jury convicted Glenn Darell Wieland of: (1) two counts of gross vehicular manslaughter while intoxicated as to victims Timothy Retes and Trisha Walton (Pen. Code, § 191.5, subd. (a)) (counts 1 and 2); (2) three counts of felony driving under the influence causing injury as to three victims: Donovan Flynn, Kenny Walton and Jennifer Retes (Veh. Code, § 23153, subd. (a)) (counts 4, 5, and 6); (3) possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) (count 7); (4) misdemeanor being under the influence of methamphetamine (Health & Saf. Code, § 11550, subd. (a)) (count 8); (5) misdemeanor possession of drug paraphernalia (Health & Saf. Code, § 11364) (count 9); and (6) misdemeanor possession of not more than 28.5 grams of marijuana (Health & Saf. Code, § 11357, subd. (b)) (count 10). The jury also found true the following enhancements: (1) three personal infliction of great bodily injury (GBI) enhancements as to Donovan Flynn, Kenny Walton and Jennifer Retes attached to counts 1 and 2 (Pen. Code, § 12022.7); (2) three multiple victim enhancements as to the same three victims attached to counts 1 and 2 (Veh. Code, § 23558); (3) two personal infliction of great bodily injury enhancements attached to counts 4, 5, and 6 (Pen. Code, § 12022.7); and (4) two multiple victim enhancements attached to counts 4, 5, and 6 (Veh. Code, § 23558.)
Count 3 was dismissed at the beginning of trial on the prosecutor’s motion.
The trial court sentenced Wieland to a total prison term of 17 years, eight months, comprised as follows: (1) Count 1- the six-year midterm; (2) the GBI enhancements attached to Count 1 - consecutive three-year terms for each enhancement, for an additional term of nine years; (3) Count 2 - a consecutive two-year term (one-third the midterm); and (4) Count 7 - a consecutive eight month term (one-third the midterm). The court also imposed concurrent jail terms on counts 8, 9, and 10. With respect to the remaining counts and enhancements, the court imposed midterm sentences and then stayed them pursuant to section 654.
On appeal, Wieland contends: (1) his convictions in counts 1 and 2 for gross vehicular manslaughter while intoxicated must be reversed because (a) there is insufficient evidence of gross negligence, and (b) the jury instruction given, CALCRIM No. 590, was flawed; (2) his convictions in counts 1, 2, 4, 5 and 6 must be reversed because (a) there is insufficient evidence he drove under the influence of a drug, and (b) the trial court erred in admitting into evidence the People’s exhibit which purported to depict the vehicles’ paths; and (3) the GBI and multiple victim enhancements must be reversed because the trial court failed to provide any instructions on them. We conclude the trial court’s failure to instruct on the GBI and multiple victim enhancements requires reversal of the true findings on those allegations, but in all other respects, we affirm the judgment.
FACTS
On July 4, 2008, Jennifer and Tim Retes were attending a family gathering along with their children. Shortly before midnight, they left the gathering in two separate cars. Jennifer was driving the first car, a gray Kia Spectra, with her 15-year-old daughter, Alexys, in the front passenger seat and two other passengers in the car. Tim was following in another car, a black Oldsmobile Alero, with passengers Trisha Walton, Ricky Flynn, Kenny Walton and Donovan Flynn. The two cars drove eastbound toward Bakersfield on Stockdale Highway, a two-lane road with no lighting. Although it was dark, it was not foggy or rainy, and there was almost no traffic. Tim was following Jennifer at a distance of 50 to 100 yards. Jennifer was driving approximately 55 mph, while Tim was driving at a slightly slower speed.
As she was driving on a straight portion of the road, Jennifer told Alexys that Tim was going slowly and put her hand out the window to signal for him to hurry up. Jennifer glanced briefly at Alexys. When she turned her attention forward she saw a truck, driven by Wieland, come “right at [her], ” head-on in her lane but with the tail of the truck in his lane, with no headlights or other lights on. Jennifer started to swerve to avoid him, but Wieland sideswiped her, striking her car on the driver’s side door and scraping all the way to the car’s rear. The impact spun Jennifer’s car around several times and she eventually came to rest in the same lane. Immediately after the impact, Jennifer saw Wieland’s headlights turn on.
After the car stopped spinning, Jennifer jumped out and looked back towards Tim’s car, but could not see anything. After the other passengers got out of the car, Jennifer took them back with her to Tim’s car, where she saw that Wieland had crashed head-on into Tim’s car, impacting the car right where Tim was sitting and collapsing the passenger compartment. Jennifer tried to pull Tim out of the wreckage, but he was pinned inside. Both Tim and Trisha Walton, who had been sitting in the middle backseat of Tim’s car, died from their injuries. As a result of the crash, Jennifer, Donovan Flynn and Kenny Walton all suffered great bodily injury.
Officers found a usable amount of methamphetamine in Wieland’s Ford F150 pickup truck and less than 28.5 grams of marijuana in a duffle bag next to the truck on the dirt shoulder. They also found a glass smoking pipe. Wieland, who was bleeding from his face, was pinned inside the truck. His pupils were constricted and he appeared calm. Wieland’s blood tested positive for a significant amount of methamphetamine and its metabolites, sufficient to impair his ability to drive. His blood also showed trace amounts of marijuana which would not have affected his driving.
DISCUSSION
I. Sufficiency of the Evidence
Wieland raises two argument with respect to sufficiency of the evidence. He contends that there is insufficient evidence upon which the jury reasonably could find: (1) that he was driving under the influence of methamphetamine, thereby requiring reversal of his convictions in counts 1, 2, 4, 5, and 6, for gross vehicular manslaughter while intoxicated and driving under the influence causing injury; and (2) that his conduct was grossly negligent, thereby requiring reversal of his convictions in counts 1 and 2 for gross vehicular manslaughter while intoxicated.
We begin our review of Wieland’s claims under the oft-stated standard of review on a claim alleging insufficiency of the evidence: “In assessing the sufficiency of the evidence to sustain a conviction, this court must view the entire record, including all reasonably deducible inferences, in the light most favorable to the judgment. The conviction will be upheld if it is supported by substantial evidence, i.e., evidence which is solid, credible and of reasonable value. [Citations.] It is only when the evidence, so viewed, would not permit any reasonable trier of fact to have found the defendant guilty beyond a reasonable doubt that the judgment will be reversed.” (People v. Andersen (1994) 26 Cal.App.4th 1241, 1250-1251.)
A. Driving Under the Influence of Methamphetamine
Wieland contends there is insufficient evidence that he was driving under the influence of methamphetamine because the testimony of the People’s expert witness, Bill Posey, was not supported by proper facts and reasons.
1. Trial Testimony
The forensic toxicologist, Bill Posey, testified that a blood sample taken from Wieland about two hours after the collisions showed his blood contained “.28 milligrams per liter” of D-type methamphetamine and “.06 milligrams per liter” of D amphetamine. Posey explained that “[t]he levels that were detected on the D methamphetamine w[ere].28 milligrams per liter, and it is a metabolite, which is a process the body goes through to break down methamphetamine, converts it to amphetamine, which was also present at.06 milligrams per liter.”
When asked the probability of whether a person with such levels would be under the influence two hours before the blood was drawn, Posey explained that methamphetamine metabolizes slowly and has a half-life of between eight and 18 hours, which is the amount of time the body takes to remove half of what is present in the blood, so if someone had.2 milligrams per liter of methamphetamine, it would take them eight to 18 hours for that level to come down to.1 milligrams per liter. Posey further explained: “Typically individuals with levels greater than two milligrams per liter of methamphetamine will show signs of impairment, primarily CNS stimulation with pupillary dilatation. The metabolite in the case - amphetamine is an active metabolite, which simply means it has a stimulating effect on the body as well. So not only will you have to look at the amount, but the combination of it with amphetamine is going to have an overall effect. [¶] In the case of marijuana, the active component was not detected, so the individual would not have shown any impairment. The metabolites is an indication of past use of the drug, in all likelihood, within about a 12-hour period.”
Posey testified that the methamphetamine and amphetamine together would cause impairment. The following exchange between the prosecutor and Posey then occurred:
“Q. So, with.28 milligrams per liter level of methamphetamine and.06 milligrams per liter level of amphetamine, is that typically enough to impair a person to the point where they are unable to safely operate a motor vehicle?
“A. Yes, it would.
“Q. And assuming a person had an accident at approximately midnight, sample was taken at 1:57, and had not ingested any methamphetamine between the time of the accident and the time of the blood draw, would that person have been more impaired at the time of the accident?
“A. No. In fact, their level is not going to change much within a two-hour period.
“Q. Is that because methamphetamine is metabolized slowly?
“A. Correct.
“Q. So given that they wouldn’t change much, would you be able to render an opinion of whether a person in the situation would have been impaired at approximately midnight on the same day?... [¶ … ¶]
“A. Yes, I believe they would be.”
Based on studies relating methamphetamine’s effect to a person’s ability to safely operate a motor vehicle, Posey opined that a person with Wieland’s drug levels would have been unable to safely operate a motor vehicle at approximately midnight. Posey admitted it would be difficult to determine the level of impairment, since it is a factor of one’s tolerance and the task being performed, but explained that with methamphetamine use impairment typically appears quite rapidly and lasts for quite some time. The drug levels in Wieland’s blood could be consistent with someone who had ingested methamphetamine approximately 12 to 15 hours earlier, and in Posey’s opinion, a person with his levels would not have been able to safely drive. Posey explained that at low doses, methamphetamine can make one a better driver, and military troops involved in long hours of repetitive performance tasks have used it, but the levels of methamphetamine in Wieland’s blood were five times over what would be expected in an individual being given stimulation for military purposes and would have a negative, not positive, impact.
Posey testified methamphetamine’s effect on a person can be readily seen by physical observation, including dilated pupils, increased respiration, irregular heart rate, increased blood pressure, and a high level of anxiety. He had not reviewed Wieland’s medical records or examined him to determine his tolerance levels. Posey was aware of methods used to determine whether a person was displaying signs of methamphetamine intoxication, such as field sobriety tests, which he said would be difficult to perform if the person to be tested had suffered some traumatic injury.
One of the California Highway Patrol officers who responded to the accident scene testified that while a person under the influence normally displays certain signs of intoxication, an intoxicated person who is injured sometimes will not display those signs.
2. Analysis
Vehicle Code section 23153, subdivision (a) provides that “[i]t is unlawful for any person, while under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver.” (Veh. Code, § 23153, subd. (a).) “Gross vehicular manslaughter while intoxicated” is defined in Penal Code section 191.5, subdivision (a), in pertinent part, as the “unlawful killing of a human being without malice aforethought, in the driving of a vehicle, where the driving was in violation of Section... 23153 of the Vehicle Code, and the killing was either the proximate result of the commission of an unlawful act, not amounting to a felony, and with gross negligence, ... ” (Pen. Code, § 191.5, subd. (a).)
Thus, to convict Wieland of gross vehicular manslaughter while intoxicated and driving under the influence causing injury, the jury was required to find that he drove his truck while under the influence of a drug. As the jury in this case was instructed, “[a] person is under the influence if, as a result of taking a drug, his mental or physical abilities are so impaired that he is no longer able to drive a vehicle with the caution of a sober person using ordinary care and under similar circumstances.” (CALCRIM No. 2100; People v. Schoonover (1970) 5 Cal.App.3d 101, 105-106.) “It is not enough that the drug could impair an individual’s driving ability or that the person is under the influence to some detectible degree. Rather, the drug must actually impair the individual’s driving ability.” (People v. Torres (2009) 173 Cal.App.4th 977, 983 (Torres).) Whether a person has been driving a vehicle while under the influence of a drug presents “a question of fact to be determined by the [trier of fact] from all the proven circumstances of the case.” (People v. Markham (1957) 153 Cal.App.2d 260, 271; see also People v. Bui (2001) 86 Cal.App.4th 1187, 1194.)
Here, there was evidence from which the jury reasonably could conclude Wieland had taken methamphetamine and as a result was not able to drive safely. First, Posey’s expert testimony established that a person with the levels of methamphetamine and amphetamine found in Wieland’s blood sample two hours after the collisions typically is impaired to the point he or she is unable to safely operate a motor vehicle and the same level of impairment would have been present when the collisions occurred. While, as Wieland points out, Posey did not testify about any facts linking Wieland’s methamphetamine use to his actual ability to drive that night or explain precisely how methamphetamine impairment would manifest itself in a person driving under its influence, the jury was not required to evaluate his testimony in a vacuum. Instead, the jury was free to consider the totality of the circumstances, including Wieland’s pattern of driving, to determine whether he was driving under the influence of methamphetamine. (See, e.g., People v. Ochoa (1993) 6 Cal.4th 1199, 1207 (Ochoa); Torres, supra, 173 Cal.App.4th at p. 983; People v. Gallardo (1994) 22 Cal.App.4th 489, 493-494.)
Wieland’s driving pattern was highly indicative of driving under the influence. While driving without headlights in the middle of the night on a two-lane unlit road, he swerved into the oncoming lane, sideswiping a car in that lane and hitting a second car in the same lane. As the Attorney General points out, this was far more than a simple traffic infraction or a brief lapse of judgment and, coupled with Posey’s testimony that a person with Wieland’s levels of methamphetamine and amphetamine would not be able to drive safely, supports the jury’s finding that his methamphetamine use impaired his ability to operate a vehicle to the point he was unable “to drive a vehicle with the caution of a sober person using ordinary care and under similar circumstances.” (CALCRIM No. 2100.)
Wieland complains that Posey’s opinion is unsupported because the reporter’s transcript states he testified that “[t]ypically individuals with levels greater than two milligrams per liter of methamphetamine will show signs of impairment, ” but also testified Wieland’s level was.28 milligrams. It is possible Posey either actually said “greater than.2 milligrams per liter of methamphetamine” but the transcript is in error, or he misspoke. At best, the record created a conflict in Posey’s testimony that neither counsel chose to explore. Given Posey’s later testimony that at.28 milligrams per liter of methamphetamine a person’s driving would be impaired and the levels of methamphetamine in Wieland’s blood were five times greater than the level at which an individual could safely drive, the jury reasonably could accept Posey’s opinion that an individual with the same levels of methamphetamine and amphetamine as Wieland could not drive safely.
Wieland contends Posey’s opinion that a person with Wieland’s drug levels would not have been able to safely operate a motor vehicle when the collisions occurred is not supported by proper facts and reasons because he did not explain how “CNS stimulation with pupillary dilatation” would impair the ability to drive or what the studies that supported this opinion said regarding methamphetamine’s effect on a person’s ability to drive. While Posey did not explain these things, Wieland’s objections go more properly to the weight given to Posey’s testimony. (See People ex rel. Dept. of Transportation v. Clauser/Wells Partnership (2002) 95 Cal.App.4th 1066, 1086 [lack of specificity in expert’s testimony regarding sources he relied upon “simply affected the testimony’s weight” and did not provide a basis to exclude it entirely as lacking foundation].) This is not a case, as in People v. Ramon (2009) 175 Cal.App.4th 843, where an expert’s testimony simply informed the jury how the case should be resolved, or one where the expert stated only conclusory or speculative opinions, as in Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755.
While we agree with Wieland that Posey’s testimony alone does not support a jury finding that his methamphetamine use actually impaired his ability to drive, we agree with the Attorney General that there was evidence beyond Posey’s opinion, namely Posey’s driving pattern, that supports that finding. Accordingly, the record contained sufficient evidence to support the jury’s conclusion that Wieland was driving under the influence of methamphetamine.
B. Gross Negligence
Wieland also contends there was insufficient evidence to support his convictions for gross vehicular manslaughter while intoxicated because there was insufficient evidence upon which the jury reasonably could find his conduct to be grossly negligent.
To convict Wieland of gross vehicular manslaughter while intoxicated as charged in counts 1 and 2 the jury was required to find that, while driving under the influence of a drug, Wieland committed an infraction or otherwise lawful act that might have caused death with gross negligence. (Pen. Code, § 191.5, subd. (a); CALCRIM No. 590.) Our Supreme Court has explained the concept of “gross negligence” as follows: “Gross negligence is the exercise of so slight a degree of care as to raise a presumption of conscious indifference to the consequences. [Citation.] ‘The state of mind of a person who acts with conscious indifference[] to the consequences is simply, “I don’t care what happens.”’ [Citation.] The test is objective: whether a reasonable person in the defendant’s position would have been aware of the risk involved.” (People v. Bennett (1991) 54 Cal.3d 1032, 1036 (Bennett).) To be in the defendant’s position means, among other things, to be aware of the facts the defendant knew. (See, e.g., Albrecht v. Broughton (1970) 6 Cal.App.3d 173, 179.) The trier of fact should consider all relevant circumstances in determining whether a “‘defendant acted with a conscious disregard of the consequences rather than with mere inadvertence.’” (Ochoa, supra, 6 Cal.4th at p. 1205 (Ochoa), quoting Bennett, supra, 54 Cal.3d at p. 1038, italics omitted.) The relevant circumstances to be considered include the manner in which the defendant operated the vehicle, the level of intoxication and any other relevant aspects of his or her conduct. (Ochoa, supra, 6 Cal.4th at p. 1207.)
Wieland correctly asserts that gross negligence cannot be established simply by showing a defendant drove a motor vehicle under the influence and broke traffic laws. (Bennett, supra, 54 Cal.3d at p. 1039; People v. Von Staden (1987) 195 Cal.App.3d 1423, 1427.) In this case, however, there was substantial evidence beyond the mere fact of Wieland’s intoxication and violation of traffic laws supporting a finding he acted with gross negligence. After consuming methamphetamine that left his blood at a level five times greater than the level at which a motor vehicle might safely be operated, Wieland drove a large pickup truck on a two-lane unlit road in the middle of the night without his headlights on. Although the road was straight and nearly devoid of traffic, he crossed over the center line and into the oncoming lane of traffic just as Jennifer’s car was approaching him in that lane with its headlights on. Apparently failing to recognize that a car was approaching him, he made no attempt to avoid hitting Jennifer’s car. Instead, she swerved and Wieland’s truck side-swiped Jennifer’s car and continued on to hit Tim’s car. Although Wieland claims he could not have been grossly negligent when he hit Tim’s car because he turned his headlights on after side-swiping Jennifer in her lane, Wieland was still driving in Tim’s lane at night after side-swiping Jennifer’s car and continuing on, apparently without braking. Since Tim’s car was not far behind Jennifer’s, a jury reasonably could conclude the sudden appearance of headlights would not have given Tim time to react to a large pickup coming right toward him and Wieland’s conduct would still constitute gross negligence.
While there is no evidence of Wieland’s driving pattern before the collisions and Wieland’s conduct may not be as egregious as in some cases, a jury reasonably could conclude Wieland acted with gross negligence given his high methamphetamine level and that he drove without his headlights on a two-lane unlit road.
II. Admission of the Police Diagram of the Accident Scene
Wieland contends the trial court improperly admitted People’s exhibit 1, a diagram of the collision scene prepared by a CHP officer. Wieland argues the diagram unfairly purported to establish the routes of the cars without adequate foundation.
A. Trial Proceedings
The People’s first witness, CHP Officer James Grider, testified that he was dispatched to Stockdale Highway to investigate a collision, and as part of that investigation he made a sketch diagram of the scene, which was marked as People’s exhibit 1. He arrived at the scene with his partner, Officer Cox. Grider explained that he used a measuring device to draw out the scene and take measurements of the width of the roadway and the shoulders, which were marked on the exhibit. The exhibit contained numbers on the roadway that indicated the two areas of impact, which were marked in the eastbound lane with the circled numbers “1” and “2.” He determined the areas of impact along with another officer based on the physical evidence at the scene, including debris and particles on the ground, as well as skid marks. Grider confirmed the physical description of the roadway and notations on the diagram fairly and accurately represented the roadway where the accident debris was found on July 5, 2008. Grider found debris, including car parts, shattered glass, skid marks and gouge marks, in the eastbound lanes of the roadway and the shoulder.
Jennifer Retes referred to the diagram on direct examination at the prosecutor’s request. Jennifer testified that two arrows on the diagram, which are in the eastbound lane labeled “V-2” and “V-3, ” represented the paths of the cars Tim and she drove. The prosecutor asked if there were any other markings on the diagram that represented other vehicles. Jennifer responded there was one, which was labeled “V-1.” The diagram shows this marking as an arrow leading from the westbound lane, toward the circled number “1” in the eastbound lane and then continuing in the eastbound lane until it meets the circled number “2.” Defense counsel objected that Jennifer was “being led by a pre-made diagram.” The court overruled the objection, stating she could refer to the diagram. Jennifer then testified that V-1 represented the truck, and agreed with the prosecutor’s question that the diagram “accurately represent[ed] sort of the course of the vehicles.” Based on her memory of that night and considering that she only saw the collision with her vehicle and not her husband’s, as far as she was aware, the diagram accurately presented what happened.
Officer Jeremy Cox testified regarding his investigation of the areas of impact of the vehicles. Cox explained his experience investigating collisions, which included determining an area of impact, and that he determines an area of impact by looking for evidence in the roadway of gouge marks, scrape marks and any type of debris field that would indicate some type of impact occurred at that location. In this particular collision scene, he saw debris that included glass from the vehicle that was in the eastbound lane and a second area that had gouge marks in the asphalt roadway in the eastbound lane. He did not observe any debris in the westbound lane.
Cox testified that when he got to the scene, the vehicles were in the following locations: (1) vehicle number two, the gray Kia Spectra, was on the dirt shoulder; (2) vehicle number three, the black Oldsmobile Alero, was partially on the dirt shoulder and partially on the edge of a field next to the roadway; and (3) vehicle number one, the red Ford pickup, was partially in the eastbound lane and partially on the right shoulder facing the southeasterly direction. He marked each vehicle’s location on People’s exhibit 1. Cox determined two areas of impact, with the first area denoted on the diagram with the circled one. Defense counsel objected that the area of impact in accident number one lacked foundation. The court overruled the objection, explaining that the officer had testified without objection that he did investigate and determine the area of impact based on debris and gouge marks he found. Cox then marked “AOI #1” on the exhibit. Cox testified that the second area of impact was when the pickup collided with vehicle number three, the black Oldsmobile. Cox opined the collisions occurred in the eastbound lane because that was the only lane that contained debris.
On cross-examination, Cox agreed that traction or tread marks are very important when reconstructing an accident scene because they indicate a vehicle’s path of travel. Cox explained that the Kia had a narrow tread pattern while the truck had a larger and wider tread pattern, “[b]ut if you follow the diagram at the scene, you can see the vehicles’ movement as it accounts to where their positions were after the collision.”
After all testimony was taken, People’s exhibit 1 was admitted into evidence with defense counsel specifically stating that he did not object to its admission.
B. Analysis
Wieland contends the trial court erred in admitting People’s exhibit 1 into evidence because there was insufficient foundation laid for the arrows on the exhibit which denoted the purported path of his truck, as neither Officer Cox nor Officer Grider testified about the purported paths of the vehicles and no witness saw the collision with Tim’s vehicle.
The Attorney General contends Wieland forfeited direct review of this point because he failed to object on this ground at trial. We agree. Although defense counsel objected during Jennifer’s testimony that she was being led by the pre-made diagram, and objected during Officer Cox’s testimony that there was no foundation for Officer Cox’s determination of the first area of impact, he never objected on the specific ground raised here, namely that there was no foundation for the arrows on the exhibit purporting to show the truck’s path.
It is a well-established principle that only points that were raised and ruled on in the trial court are reviewable on appeal. (Evid. Code, § 353; People v. Clark (1993) 5 Cal.4th 950, 988, fn. 13, disapproved on another ground by People v. Doolin (2009) 45 Cal.4th 390, 421 fn. 22.) To preserve an evidentiary issue for appellate review, timely objection must have been interposed on the same ground during trial. (People v. Hill (1992) 3 Cal.4th 959, 989, overruled on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069 fn. 13.) “Specificity is required both to enable the court to make an informed ruling on the motion or objection and to enable the party proffering the evidence to cure the defect in the evidence.” (People v. Mattson (1990) 50 Cal.3d 826, 854.)
Although we believe the objection was waived, since Wieland claims the issue amounts to ineffective assistance of counsel we nevertheless address the merits of Wieland’s contention and find no error. There was no question what the exhibit depicted, i.e. a diagram of the collision scene based upon measurements taken that night and the next morning by the officer who prepared the diagram. The officers testified about the location of the cars upon arriving at the scene and how they determined the areas of impact. Jennifer testified about the arrows on the diagram, stating that the arrows next to “V-2” and “V-3” showed the path of her and her husband’s cars. With respect to the arrow next to “V-1” that led to the first area of impact, Jennifer, after previously testifying about the truck’s path before it collided with her car, agreed it accurately represented that path. With respect to the arrow next to the second “V-1” leading from the first to the second area of impact, Jennifer testified that she did not see the truck’s path after it collided with her. Finally, Officer Cox testified that the tread marks at the scene showed the vehicles’ movement.
Whether the diagram accurately portrayed the scene was tested by the testimony of witnesses who were there, as well as photographs taken that evening at the scene. The diagram was useful to illustrate the testimony of several witnesses, its foundation was established by Jennifer and the two officers, and the court would not have abused its discretion in concluding it would have been of value to jury. (See People v. Mills (2010) 48 Cal.4th 158, 207 [“Trial courts have broad discretion to admit demonstrative evidence such as maps, charts, and diagrams to illustrate a witness’s testimony.”].)
The cases Wieland relies on, People v. Beckley (2010) 185 Cal.App.4th 509 and People v. Khaled (2010) 186 Cal.App.4th Supp.1, do not compel a different result, as both involve the admissibility of photographic evidence.
Instruction Pursuant to CALCRIM No. 590
Wieland contends the trial court erred when it instructed the jury with CALCRIM No. 590, as the instruction failed to (1) identify the drug as methamphetamine, (2) instruct on causation, and (3) instruct that the People’s burden was beyond a reasonable doubt and that the jury had a duty to consider lesser offenses if they found him not guilty.
At trial, without objection or request for modification from Wieland, the court instructed the jury in accordance with the standard version of CALCRIM No. 590 as follows: “The defendant is charged in Counts 1 and 2 with gross vehicular manslaughter while intoxicated, a violation of Penal Code section 191.5(a). [¶] To prove that the defendant is guilty of this crime, the People must prove that: One, the defendant drove under the influence of a drug; two, while driving that vehicle under the influence of a drug, the defendant also committed an infraction or otherwise lawful act that might have caused death; three, the defendant committed the infraction or otherwise lawful act that might cause death with gross negligence; and four, the defendant’s grossly negligent conduct caused the death of another person. [¶] The People allege that the defendant committed the following infractions, violation of Vehicle Code section 21650 and Vehicle Code section 22107. [¶] Further instructions will tell you what the People must prove in order to prove that the defendant committed these infractions. [¶] Instruction 2100 tells you what the People must prove in order to prove that the defendant drove under the influence of a drug. [¶] Gross negligence involves more than ordinary carelessness, inattention or mistake in judgment. A person acts with gross negligence when: One, he acts in a reckless way that creates a high risk of death or great bodily injury; and two, a reasonable person would have known that acting in that way would create such a risk.... [¶] In other words, a person acts with gross negligence when the way he acts is so different from the way an ordinary careful person would act in the same situation [that] his act amounts to disregard for human life or indifference to the consequences of the act. [¶] The combination of driving a vehicle while under the influence of a drug and violating a traffic law is not by itself enough to establish gross negligence. In evaluating whether the defendant acted with gross negligence, consider the level of the defendant’s intoxication, if any, the way the defendant drove and any other relevant aspects of the defendant’s conduct.”
“In assessing a claim of instructional error, ‘we must view a challenged portion “in the context of the instructions as a whole and the trial record” to determine “‘whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way’ that violates the Constitution.”’” (People v. Jablonski (2006) 37 Cal.4th 774, 831; see also Estelle v. McGuire (1991) 502 U.S. 62, 72.) In doing so, we must “‘“‘assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given.’”’” (People v. Guerra (2006) 37 Cal.4th 1067, 1148-1149.) “We can, of course, do nothing else. The crucial assumption underlying our constitutional system of trial by jury is that jurors generally understand and faithfully follow instructions.” (People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17.)
Failure to object to instructional error waives the objection on appeal unless the defendant’s substantial rights are affected. (Pen. Code, § 1259; see People v. Rodrigues (1994) 8 Cal.4th 1060, 1132.) “‘[S]ubstantial rights’” are equated “with reversible error, i.e., did the error result in a miscarriage of justice? (Cal. Const., art. VI, § 13; People v. Watson (1956) 46 Cal.2d 818.)’” (People v. Arredondo (1975) 52 Cal.App.3d 973, 978.) Because Wieland claims the alleged instructional errors affected his substantial rights, we address his challenge on the merits.
Wieland first asserts the instruction erroneously failed to identify the drug at issue as methamphetamine and without such instruction, the jury could have relied upon the combination of methamphetamine and marijuana to conclude he was driving under the influence. Even if we assume error in failing to identify the term “drug” as methamphetamine, the error was harmless under any standard. (Chapman v. California (1967) 386 U.S. 18 (Chapman); People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).) While the forensic toxicologist, Posey, did testify that marijuana was found in Wieland’s blood sample, he explained that the active component was not detected and therefore an individual with the same level of marijuana found in Wieland’s blood would not have shown impairment. On cross-examination, Posey confirmed that the marijuana found in Wieland’s blood played no part in his impairment. The only evidence of drug-induced impairment upon which the jury could have based a verdict was methamphetamine. There was no evidence of marijuana impairment to which the jury could have misapplied the instruction. (See People v. Williams (2009) 170 Cal.App.4th 587, 627.) On this record, there is no reasonable likelihood the jury applied the challenged instruction in a way that violated the Constitution.
Wieland next asserts the instruction was erroneous because it failed to instruct on causation. While the jury was instructed that it must find “the defendant’s grossly negligent conduct caused the death of another person, ” the jury was not instructed with the optional paragraph in CALCRIM No. 590 that explains causation. Wieland is correct that causation instructions must be given when the issue is whether the defendant’s act was the cause of the crime. (People v. Bernhardt (1963) 222 Cal.App.2d 567, 590-591 (Bernhardt).)
The optional paragraph states: “An act causes death if the death is the direct, natural, and probable consequence of the act and the death would not have happened without the act. A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence.” (CALCRIM No. 590.)
Causation, however, was not an issue here, as there was no dispute about the cause of the victims’ deaths. The parties stipulated at trial that Wieland “was the driver of the Ford pickup which collided with the vehicles driven by Jennifer Retes and Timothy Retes on July 5th, 2008, ” that “Jennifer Retes, Donovan Flynn and Kenny Walton suffered great bodily injury as a result of the collision, ” and “that Timothy Retes and Trisha Walton died as a result of the collision with the defendant’s truck.” Thus, the deaths and injuries were indisputably caused by the collision with Wieland’s truck, which he was driving. (Contrast with Bernhardt, supra, 222 Cal.App.2d at p. 590 [conflicting evidence whether victim’s death was caused by post partum hemorrhage due to multiple lacerations in surgery or by an embolism for which surgeon was not responsible].)
Instead, the disputed issues for the jury were whether Wieland drove under the influence of methamphetamine and while so driving, committed an infraction with gross negligence. Those issues were squarely addressed in clear language by CALCRIM Nos. 590 and 2100. If the jury credited the People’s evidence and determined that Wieland, while driving under the influence, committed an infraction with gross negligence, then there is no dispute that Wieland’s grossly negligent act caused the victims’ deaths. The instructions given were responsive to the evidence, a correct statement of law, and fully adequate to inform the jury of the issues. There was no error in omitting the explanation regarding causation. (See People v. Montoya (1994) 7 Cal.4th 1027, 1047 [trial court’s only duty sua sponte is to instruct on general principles of law openly connected to the facts of the case and necessary for the jury’s understanding].)
Finally, Wieland contends the trial court committed reversible error by omitting the following optional paragraph from CALCRIM No. 590: “The People have the burden of proving beyond a reasonable doubt that the defendant committed gross vehicular manslaughter while intoxicated. If the People have not met this burden, you must find the defendant not guilty of that crime. You must consider whether the defendant is guilty of the lesser crime[s] of _________ <insert lesser offense[s]>.”
The record, however, shows the court gave the standard instruction on proof beyond a reasonable doubt, including “Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt.” The court also thoroughly instructed on lesser included offenses. Moreover, the court gave detailed instructions on the jury’s duty to consider lesser offenses if they found Wieland not guilty of the charged crimes, including: “If all of you find that the defendant is not guilty of the greater charged crime, you may find him guilty of a lesser crime if you are convinced beyond a reasonable doubt that the defendant is guilty of that lesser crime. A defendant may not be convicted of both a greater and a lesser crime for the same conduct. [¶]…[¶] Gross negligence without intoxication is a lesser included crime of the crimes charged in Counts 1 and 2. Ordinary negligence with intoxication is a lesser included offense of the crimes charged in Counts 1 and 2. And misdemeanor vehicular manslaughter is a lesser included offense of the crimes charged in Counts 1 and 2.”
The court gave further detailed instructions on how the jury was to consider each greater or lesser crime and select the verdict forms. As part of this instruction, the court stated: “[I]f all of you agree that the People have not proved beyond a reasonable doubt that the defendant is guilty of the greater crime, and also agree that the People have proved beyond a reasonable doubt that he is guilty of the lesser crime, complete and sign the verdict form for not guilty of the greater crime and the verdict form for guilty to the corresponding lesser crime. Do not complete or sign any other verdict forms for those charges. [¶] Four, if all of you agree that the People have not proved beyond a reasonable doubt that the defendant is guilty of the greater or the lesser crime, complete and sign the verdict form for not guilty of the greater crime and the verdict form for not guilty of the corresponding lesser crime.”
There was no part of the optional language of CALCRIM No. 590 concerning reasonable doubt that is not addressed by the instructions given. In light of the entire charge to the jury, there is no reasonable likelihood the jury applied the instruction in a way that violated the Constitution.
Wieland claims that multiple flaws within the given version of CALCRIM No. 590 require reversal when considered in combination. Wieland, however, has failed to demonstrate the trial court erred in giving the version of CALCRIM No. 590 that it did or that he suffered any prejudice as a result of the language used. Accordingly, his arguments must be rejected.
Failure to Instruct on the Enhancements
The information alleged two enhancements: (1) that on counts 1, 2, 4, 5 and 6, Wieland “proximately caused bodily injury to more than one victim, ” in violation of Vehicle Code section 23558; and (2) that in the commission of counts 1, 2, 4, 5 and 6, Wieland “personally inflicted great bodily injury” within the meaning of Penal Code section 12022.7. The jury found these allegations true on verdict forms stating, in pertinent part, “We, the Jury, ..., find it to be true that...Wieland proximately caused bodily injury to more than one victim... in violation of California Vehicle Code section 23558, as alleged in the Information[, ]” and “We, the Jury, ..., find it to be true as to... Wieland that in the commission of the above offense he personally inflicted great bodily injury... within the meaning of Penal Code section 12022.7, as alleged in the Information.”
The court, however, did not instruct the jury on the elements of these enhancements. Moreover, there was nothing in the jury instructions that were given to advise it that the enhancements must be proven beyond a reasonable doubt, as the verdict forms told the jury they should find the enhancements either “true” or “not true, ” but the standard jury instruction on reasonable doubt the court gave referred to “guilty” and “not guilty, ” as opposed to “true” and “not true.”
Wieland contends, and the Attorney General agrees, that the trial court’s failure to instruct on the enhancements was error. As the parties point out, with respect to the Penal Code section 12022.7 enhancement, the jury should have been instructed with CALCRIM No. 3160, which provides: “If you find the defendant guilty of the crime[s] charged in Count[s] ___________[, ]... you must then decide whether... the People have proved the additional allegation that the defendant personally inflicted great bodily injury on [the injured person] in the commission... of that crime. [You must decide whether the People have proved this allegation for each crime and return a separate finding for each 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.” With respect to the multiple victim enhancement, as there does not appear to be any CALCRIM instruction, the trial court should have instructed in accordance with the elements listed in Vehicle Code section 23558, which provides, in pertinent part: “A person who proximately causes bodily injury or death to more than one victim in any one instance of driving in violation of Section 23153 of this code... shall, upon a felony conviction... receive an enhancement of one year in the state prison for each additional injured victim.” (Veh. Code, § 23558.)
Wieland contends the jury’s findings on the enhancements must be reversed due to this instructional error, particularly in light of the failure to instruct the jury that the enhancements had to be proven beyond a reasonable doubt. The Attorney General argues the error was harmless because the elements of the omitted instructions were covered either by other instructions or by the parties’ stipulations.
The outcome of this issue hinges on how we view the applicable legal standard. In our view, Wieland’s entitlement to relief turns on whether the trial court’s failure to instruct on the beyond-a-reasonable-doubt standard constituted structural error as opposed to trial error. “There is no question that the failure to instruct sua sponte on the.... prosecutor’s burden... was error. The only question is the prejudicial impact of the error.” (People v. Crawford (1997) 58 Cal.App.4th 815, 819 (Crawford).) That is so, however, only if prejudice analysis is permitted in the first place. If the court’s omission resulted in structural error, the error is not subject to prejudice analysis, and reversal is constitutionally compelled. (Sullivan v. Louisiana (1993) 508 U.S. 275, 280-282.) If the court committed a trial error, by contrast, prejudice analysis would apply. We would then turn to the test of Chapman, supra, 386 U.S. 18, 24, to determine whether it appears “‘beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’” (Neder v. United States (1999) 527 U.S. 1, 15.)
Neder also phrased the standard as follows: “Is it clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error?” (Neder v. United States, supra, 527 U.S. at p. 18.) If “a reviewing court” “cannot conclude beyond a reasonable doubt that the jury verdict would have been the same absent the error - for example, where the defendant contested the omitted element and raised evidence sufficient to support a contrary finding - it should not find the error harmless.” (Id. at p. 19.)
The analyses in People v. Phillips (1997) 59 Cal.App.4th 952 (Phillips), and Crawford, supra, 58 Cal.App.4th 815, lead us to conclude that structural error occurred. We must reverse the judgment with regard to the Vehicle Code section 23558 and Penal Code section 12022.7 enhancements the jury found true.
In Phillips, supra, 59 Cal.App.4th 952, the trial court neglected to give, after the end of the evidentiary phase of trial, orally or in writing, the standard reasonable doubt instruction then in effect. (Id. at pp. 953-954; see id. at p. 956, fn. 2 [quoting section 1096 and referring to CALJIC No. 2.90].) The court had, however, mentioned the reasonable doubt burden-of-proof standard in pre-deliberation instructions other than the standard instruction (evidently CALJIC No. 2.90) that it omitted. In addition, it had mentioned the concept of reasonable doubt (though without defining the term) to the prospective jurors. (Phillips, at pp. 954, 955-956.) At least one of the instructions contained language setting forth basic beyond-a-reasonable-doubt burden of proof principles: “‘In deciding whether or not to testify, the defendant may choose to rely on the state of the evidence and upon the failure, if any, of the People to prove beyond a reasonable doubt every essential element of the charge against him. No lack of testimony on defendant’s part will make up for a failure of proof by the People so as to support a finding against him on any such essential element.’ (Italics added.)” (Id. at p. 955.)
The foregoing allusions to the need for proof beyond a reasonable doubt could not outweigh for the Phillips court the problem that “the trial court did not define reasonable doubt” or describe “the People’s burden to prove guilt beyond a reasonable doubt. The trial court’s omission constitutes a structural constitutional defect and compels reversal per se.” (Phillips, supra, 59 Cal.App.4th at pp. 953-954; cf. People v. Mayo (2006) 140 Cal.App.4th 535, 548, fn. 13 [declining to decide whether defects of this type constitute structural or trial error].) Phillips rejected the People’s argument that the “omission neither deprived Phillips of his right to a jury trial nor constituted a structural defect in the framework of the trial. That is because [in the People’s view] the jury was instructed with a proper definition of reasonable doubt through argument of counsel and other instructions relating to reasonable doubt.” (Phillips, at p. 957.)
Similarly, in Crawford, supra, 58 Cal.App.4th 815, the reviewing court was confronted with “the trial court’s failure to instruct on... the prosecution’s burden of proof beyond a reasonable doubt (CALJIC No. 2.90).” (Id. at p. 817.) Evidently through clerical error, CALJIC No. 2.90 was left out of the instructions packet and no one noticed. (Id. at p. 819 & fn. 2.) Similar to Phillips, the trial court in Crawford told the audience of prospective jurors that “‘this is a criminal case. In a criminal case the defendant, under our constitutional system, is presumed to be innocent until the contrary is proved. And in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to a verdict of not guilty. The effect of this presumption is only to place upon the State the burden of proving him guilty beyond a reasonable doubt, which I'll define for you. [¶] It’s not a mere possible doubt. Because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case which after the entire comparison and consideration of all the evidence leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.’” (Id. at p. 820, fn. omitted.) And as in Phillips, the impaneled jury in Crawford heard reasonable doubt defined in other instructions. (Ibid.)
Nevertheless, Crawford held that structural error occurred in the court’s failure to give CALJIC No. 2.90. The decision noted that in a concurring opinion in Sullivan v. Louisiana, supra, 508 U.S. 275, then Chief Justice Rehnquist had “expressed concern that the [Sullivan] majority may have painted with too broad a brush. He noted the instances where the court had applied harmless error analysis to instructional error and he suggested that the deficiency in Sullivan in many respects bore the hallmark of an error that is amenable to harmless-error analysis. The Chief Justice added: ‘In this regard, a trial in which a deficient reasonable-doubt instruction is given seems to me to be quite different from one in which no reasonable-doubt instruction is given at all.’ [Citation.] [Italics added in Crawford.] Nevertheless, the Chief Justice accepted the majority’s conclusion that a constitutionally deficient reasonable doubt instruction ‘is a breed apart from the many other instructional errors that we have held are amenable to harmless-error analysis.’” (Crawford, supra, 58 Cal.App.4th at p. 822.)
Crawford then concluded: “In our view, Sullivan compels the conclusion that the trial court, in the case before us, erred in failing to instruct, after presentation of the evidence, on the requirement of proof beyond a reasonable doubt and in failing to assign the burden of proof to the prosecution, in effect denying to appellant the most elementary and fundamental right provided by our system of justice, a jury verdict of guilty beyond a reasonable doubt.” (Crawford, supra, 58 Cal.App.4th at pp. 822-823, italics added.) The decision rejected the People’s arguments that “the giving of a reasonable doubt instruction during jury selection and not repeating it at the conclusion of the case does not constitute a ‘misdirection of the burden of proof’ or a ‘structural defect’” and that “the trial court’s failure to reiterate that instruction at the conclusion of trial violated [only] state procedural rules” if even that much. (Id. at p. 823.)
Conversely, People v. Chatman (2006) 38 Cal.4th 344 (Chatman), found only harmless trial error in the trial court’s failure to provide, at the penalty phase of a capital trial, the definition of reasonable doubt it had provided at the guilt phase. The court had instructed the jury on the correct burden of proof both at the guilt and penalty phases, omitting only, at the penalty phase, to define once again the meaning of reasonable doubt. “The trial court correctly instructed that before a juror could consider any criminal act in aggravation that ‘juror must first be satisfied beyond a reasonable doubt that the defendant did in fact commit such criminal acts.’ [Citation.] It did not define reasonable doubt as part of its penalty instructions, although it had done so at the guilt phase.” (Id. at pp. 407-408.) Under those circumstances, the court did not address the possibility of structural error (perhaps the defendant had not made such a claim), reviewed the claim for prejudice, and found none. (Ibid.)
The circumstances of this case hew closer to those of Phillips, supra, 59 Cal.App.4th 952, and Crawford, supra, 58 Cal.App.4th 815, than to those of Chatman, supra, 38 Cal.4th 344. While the jury heard references to the correct burden of proof, when it did, similar to Phillips and Crawford, the trial court’s reasonable doubt instructions were not connected to the question before the jury: was it true beyond a reasonable doubt that Wieland had personally inflicted great bodily injury in the commission of the offenses or proximately caused bodily injury to more than one victim?
The jury here was never instructed that the People had the burden of proving the allegations of the enhancements true beyond a reasonable doubt. The reasonable likelihood of constitutional infirmity is bolstered by the language of the reasonable doubt instruction itself, which restricted application of the burden of proof to whether Wieland “was guilty beyond a reasonable doubt, ” and “[u]nless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty.” The jury was not told that the People had the burden of proving the enhancements’ allegations “true beyond a reasonable doubt.”
We recognize that the majority in People v. Flores (2007) 147 Cal.App.4th 199 (Flores), declined to follow the decisions in Phillips, supra, 59 Cal.App.4th 952, and Crawford, supra, 58 Cal.App.4th 815, and criticized their analyses as not deferring sufficiently to United States Supreme Court, California Supreme Court, and California Court of Appeal decisions predating Neder v. United States, supra, 527 U.S. 1, and Sullivan v. Louisiana, supra, 508 U.S. 275. (See generally Flores, supra, 147 Cal.App.4th at pp. 208-211.) To the extent that the discussion set forth by the Flores majority applies to Wieland’s claim (see Flores, supra, 147 Cal.App.4th at pp. 203, 209-211), we generally do not agree with the greater part of it; rather, we agree generally with the concurrence and dissent in Flores, which endorsed Phillips and Crawford (Flores, at pp. 219-223 (conc. & dis. opn. of McDonald, J.)), to the extent the separate opinion’s discussion is concerned with the issue before us. We will not belabor our analysis of Flores. Suffice it to say that the discussions in Phillips and Crawford of the rules on review of trial courts’ failures to instruct on reasonable doubt are well-grounded in recent United States Supreme Court decisions, and to any extent that those United States Supreme Court decisions may be at variance from prior precedent, the more recent decisions of the United States Supreme Court properly apply to our resolution of this case.
DISPOSITION
The judgment is reversed with respect to the true findings on the following enhancements: (1) the three Vehicle Code section 23558 multiple victim enhancements attached to counts 1 and 2; (2) the three Penal Code section 12022.7 great bodily injury enhancements attached to counts 1 and 2; (3) the two Vehicle Code section 23558 multiple victim enhancements attached to counts 4, 5 and 6; and (4) the two Penal Code section 12022.7 great bodily injury enhancements attached to counts 4, 5 and 6. In all other respects, the judgment is affirmed.
WE CONCUR: Dawson, J., Franson, J.