People v. Elder

Opinion

A jury convicted defendant Stuart Andrew Elder of gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a)); driving under the influence of alcohol causing injury (Veh. Code, § 23153, subd. (a)); and driving with a blood-alcohol concentration of 0.08 percent or greater causing injury (Veh. Code, § 23153, subd. (b)). The jury found true allegations that he inflicted great bodily injury (Pen. Code, § 12022.7, subd. (a)) and inflicted bodily injury to multiple victims (Veh. Code, § 23558). Defendant was sentenced to 13 years in prison: two years on the Vehicle Code section 23153 charge; three consecutive three-year terms for three separate Penal Code section 12022.7, subdivision (a) enhancements; and a consecutive two-year term for the Vehicle Code section 23558 enhancement.

We find no error affecting defendant’s conviction, but for the reasons explained we find the trial court erred in imposing a consecutive two-year term for the Vehicle Code section 23558 enhancement. We will therefore reverse the judgment and remand for resentencing.

Factual Background

Defendant was driving home after drinking multiple glasses of wine at a restaurant with friends. While on a narrow two-lane road with a 25-mile-per-hour speed limit, he accelerated to over 70 miles per hour, veered momentarily into the opposing lane, and collided with an oncoming car. The two occupants of the other car were killed instantly, and the passenger riding in defendant’s vehicle was injured. Following the collision, defendant’s blood-alcohol concentration was measured to be 0.17 percent, over twice the legal limit.

Defendant’s Motion To Suppress

Before trial, defendant moved under Penal Code section 1538.5 to suppress evidence of the chemical test result showing his blood-alcohol level. The grounds for the motion were that defendant did not consent to the chemical testing of his blood and no other United States Constitution Fourth Amendment exception justified the warrantless search. The court held a hearing, at which the Department of the California Highway Patrol officer who arrested defendant testified about the events leading to the arrest and obtaining a blood sample from defendant.

The officer testified that upon arriving at the scene of the traffic collision he approached the defendant, who had been identified as the driver of one of the vehicles. Defendant admitted he had been drinking alcohol, and a preliminary alcohol screening device indicated the presence of alcohol in his system. The officer advised defendant he was being placed under arrest, and he was then transported by ambulance to the hospital for medical treatment with the officer following behind.

The trial court found that defendant was placed under arrest at the scene of the incident, signed a consent form for the blood test, and then the blood was drawn. After making those findings, the court denied the motion to suppress.

Discovery Dispute

Using the procedure provided for by Penal Code section 1054.5, defendant informally requested a number of items from the prosecution, including ‘“[a]ll local law enforcement reports regarding accidents at the [relevant intersection] in the last seven years.” Defense counsel later narrowed that request to only accident reports maintained by the California Highway Patrol. The prosecution refused to provide any accident reports, and the defendant filed a motion to compel discovery. The trial court denied the motion, finding that information related to other accidents at the location of defendant’s collision was not relevant to any issues in the case.

Evidentiary Issues and Jury Instructions

The prosecution moved in limine for an order excluding evidence relating to contributory negligence by the driver of the vehicle with which defendant collided, including any evidence of that driver’s blood-alcohol level. Defendant opposed the motion, arguing that evidence of the other driver’s blood-alcohol level was relevant to the issue of causation and was therefore admissible.

Three different postmortem chemical testing techniques that were performed on the deceased driver apparently yielded three different results, one showing a 0.19 percent blood-alcohol concentration, one a 0.08 percent, and the other a 0.07 percent. While hearing argument from both counsel on the issue of the admissibility of the test results, the court expressed its view that ‘“at a minimum, the court could allow in evidence that there was alcohol in

Ms. Daly and Ms. Larone were both killed by the impact of the collision. Defendant’s passenger was injured, suffering a broken wrist and a torn labrum in her hip.

A Department of the California Highway Patrol officer who responded to the scene contacted defendant and noticed an odor of alcohol. The officer used a preliminary alcohol screening device to test defendant’s breath, and it showed the presence of alcohol in defendant’s system. Defendant was placed under arrest and taken to the hospital to be evaluated for injuries. Blood drawn from defendant approximately an hour after the collision contained a blood-alcohol concentration of 0.17 percent.

Defendant testified that he drank two or three glasses of wine on the evening of the collision, but did not feel impaired. While driving home, he saw a deer and accelerated and swerved into the oncoming lane to avoid it. He described attempting to accelerate to avoid the other car but it cut him off, leading to the collision.

The jury found defendant guilty of two counts of gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a)); one count of driving under the influence of alcohol causing injury (Veh. Code, § 23153, subd. (a)); and one count of driving with a blood-alcohol level of 0.08 percent or more causing injury (Veh. Code, § 23153, subd. (b)). The jury found true an allegation that defendant had inflicted great bodily injury upon his passenger (Pen. Code, § 12022.7, subd. (a)) in the commission of the offense of gross vehicular manslaughter while intoxicated. The jury also found true allegations that defendant inflicted great bodily injury on three separate victims (his passenger, Ms. Daly, and Ms. Larone) under Penal Code section 12022.7, subdivision (a), and inflicted bodily injury on more than one victim under Vehicle Code section 23558, in the commission of the offense of driving under the influence causing injury. Those same allegations were found true with regard to the same three victims in connection with the offense of driving with a blood-alcohol level of 0.08 percent or more causing injury.

The court sentenced defendant to the middle term of two years in prison on count 3, driving under the influence of alcohol causing injury. It imposed three consecutive three-year terms for the three great bodily injury enhancements on that charge, and a consecutive two-year term for inflicting bodily

The trial court’s finding that defendant consented in advance to the blood draw ends the inquiry regarding a Fourth Amendment violation, because a defendant’s free and voluntary consent to a blood draw constitutes an exception to the Fourth Amendment search warrant requirement. (People v. Harris (2015) 234 Cal.App.4th 671 , 690 [ 184 Cal.Rptr.3d 198 ]; see also Florida v. Jimeno (1991) 500 U.S. 248 , 250-251 [114 F.Ed.2d 297, 111 S.Ct. 1801 ] [“[I]t is no doubt reasonable for the police to conduct a search once they have been permitted to do so.”].) As a result, defendant’s discussion of Missouri v. McNeely (2013) 569 U.S. 141 [ 185 L.Ed.2d 696 , 133 S.Ct. 1552 ], and similar cases involving nonconsensual blood draws has no application here.

We find no error in the denial of the motion to suppress the blood test result. The trial court’s factual findings are supported by substantial evidence and the court correctly determined based upon those findings that no Fourth Amendment violation occurred.

B. Denial Of Defendant’s Motion To Compel Discovery of Other Collision Records

Defendant asserts the trial court erred when it denied his motion to compel discovery of Department of the California Highway Patrol records relating to other automobile collisions at the same location in the seven years preceding the collision in this case. He argues he was entitled to disclosure of the records under Penal Code section 1054 et seq. governing discovery in criminal cases.

We review a ruling on a criminal defendant’s discovery motion under the abuse of discretion standard. (People v. Prince (2007) 40 Cal.4th 1179 , 1233 [ 57 Cal.Rptr.3d 543 , 156 P.3d 1015 ].) To determine whether the trial court abused its discretion in this instance, we look first to the text of Penal Code section 1054.1, the statute describing what materials the prosecution is obligated to disclose to a defendant. It provides that the prosecuting attorney shall disclose to the defendant any information in the possession of the prosecution or the investigating agencies in the following categories: (a) the names and addresses of persons the prosecutor intends to call as witnesses at trial; (b) statements of all defendants; (c) all relevant real evidence seized or obtained as a part of the investigation of the offenses charged; (d) the

Defendant does not articulate which of the above listed categories he believes past collision records fall under, but the only plausible choice is the category described by subdivision (e) of the statute, “any exculpatory evidence.” (Pen. Code, § 1054.1, subd. (e).) Under this provision, the prosecution must provide to a defendant all exculpatory evidence, not limited to the “material” exculpatory evidence required under federal constitutional standards established by Brady v. Maryland (1963) 373 U.S. 83 [ 10 L.Ed.2d 215 , 83 S.Ct. 1194 ], (See People v. Cordova (2015) 62 Cal.4th 104 , 121 [ 194 Cal.Rptr.3d 40 , 358 P.3d 518 ].)

Defendant ultimately limited his discovery request to records maintained by the Department of the California Highway Patrol, which is the agency that arrested defendant and investigated the collision and is therefore an investigating agency that would be required to disclose any information in its possession coming within the categories described by the statute. (See Pen. Code, § 1054.1 [providing for discovery of information the prosecution knows to be within the possession of “the investigating agencies”].) Defendant’s entitlement to the requested discovery accordingly hinges on whether the information can properly be characterized as exculpatory.

Defendant argues that records of other collisions are relevant to his defense and therefore exculpatory for two reasons: the fact of other collisions in the same area would undermine the prosecution’s position that defendant was grossly negligent, and it would undermine the prosecution’s position that the legal cause of the collision in this case was defendant’s conduct. Neither reason persuades us that information related to other collisions is exculpatory.

If indeed there was a history of collisions at the site, that fact would not dispel the gross negligence of driving three times the roadway’s posted speed limit while entering a curve. To the contrary, a disproportionate number of collisions would tend to show the roadway was difficult to drive under typical conditions, making it even more dangerous to drive in the manner defendant did. Nor would the fact of other collisions necessarily aid a defense based on causation. A defendant’s conduct is deemed not the legal cause of harm only when the harm is caused by an intervening act that is not reasonably foreseeable. (People v. Schmies (1996) 44 Cal.App.4th 38 , 46 [ 51 Cal.Rptr.2d 185 ].) Defendant asserts that evidence of other collisions would show “repeated mistakes” made by drivers coming from the same direction as

We conclude the requested discovery was not exculpatory and therefore did not fall under any category of information the prosecution was required to disclose under the statute. Accordingly, the trial court did not abuse its discretion in denying defendant’s motion to compel.

Even assuming error in denying the discovery of records related to other collisions, the denial of a defendant’s motion to compel discovery is subject to harmless error analysis under the standard of People v. Watson (1956) 46 Cal.2d 818 , 836 [ 299 P.2d 243 ], and would be a basis for reversal only where it is reasonably probable that the error affected the trial result. (People v. Zambrano (2007) 41 Cal.4th 1082 , 1135 [ 63 Cal.Rptr.3d 297 , 163 P.3d 4 ], disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390 , 421, fn. 22 [ 87 Cal.Rptr.3d 209 , 198 P.3d 11 ].) On this record, with the prosecution having presented undisputed evidence that defendant drove over 70 miles per hour on a narrow roadway with a 0.17 percent blood-alcohol level, veered into an oncoming lane of traffic, and collided head on with the victims’ car, we would find the error harmless.

C. Exclusion of Evidence of Victim Driver’s Blood-alcohol Concentration

Defendant contends the trial court erred by excluding evidence that one of three postmortem chemical tests performed on the victim driver showed a blood-alcohol concentration of 0.19 percent. But the trial court made no such ruling.

The prosecution did move in limine to exclude all evidence of the victim’s contributory negligence, a motion that included in its scope evidence of the victim’s blood-alcohol concentration. At the time that motion was argued, the court clearly indicated it would be taking the matter under submission because it wanted to conduct further research on the blood-alcohol issue, and that it would issue a ruling on the motion before opening statements.

Before the court made a ruling, defense counsel announced the parties had reached an agreement that the victim’s blood-alcohol concentration was measured at 0.07 percent, and that stipulation was read to the jury during the trial.

A party to a criminal action can, with binding effect, stipulate to both evidentiary matters and to the existence or nonexistence of facts. (Leonard v.

Once the parties agreed to handle the issue of the admissibility of the victim’s blood-alcohol concentration by presenting to the jury the fact that it had been measured at 0.07 percent, the trial court no longer needed to rule on the prosecution’s motion to exclude such evidence. Moreover, the court could not properly have allowed admission of evidence indicating a 0.19 percent blood-alcohol level because it was bound by the evidentiary stipulation of the parties.

Having voluntarily entered into the stipulation, the doctrine of invited error precludes defendant from now challenging the manner in which the victim blood-alcohol issue was handled. (See Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202 , 212 [ 285 Cal.Rptr. 99 , 814 P.2d 1341 f [’'Under the doctrine of invited error, when a party by its own conduct induces the commission of error, it may not claim on appeal that the judgment should be reversed because of that error.”].) But more to the point, because the trial court never ruled on the motion as a result of the stipulation, there is nothing on this issue for defendant to challenge on appeal. (People v. Crabtree (2009) 169 Cal.App.4th 1293 , 1319 [ 88 Cal.Rptr.3d 41 ] [failure to obtain a ruling on evidentiary matter forfeits issue on appeal].)

We note that defense counsel’s decision to enter into the stipulation was not without reasonable strategic underpinning. Taking the trial court’s comments during argument at face value (as counsel likely did), it appeared the court was inclined to admit evidence that the victim had alcohol in her system, but to exclude evidence of any specific blood-alcohol concentration. The stipulation was a tactical compromise given that scenario: While it eliminated the possibility of introducing evidence that the victim was significantly impaired with a blood-alcohol level above the legal limit, it also mitigated the risk that the court would not allow any evidence of a specific blood-alcohol level, which could leave the jury believing the amount of alcohol in the victim’s system was negligible.

D. Jury Instructions Regarding Causation

Defendant argues the trial court failed to adequately instruct the jury on the principle of causation. We review the adequacy of jury instructions by determining whether the trial court “ ‘fully and fairly instructed on the applicable law.’ ” (People v. Ramos (2008) 163 Cal.App.4th 1082 , 1088 [ 78

Because defendant never requested any additional instructions (aside from CACI No. 411), he has forfeited any claim of error for failure to further instruct. (People v. Ngo (2014) 225 Cal.App.4th 126 , 149 [ 170 Cal.Rptr.3d 90 ] [“ ‘ “ ‘a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language’ ” ’ ”].) Before the jury was instructed, defense counsel confirmed on the record that he had not requested any additional jury instructions or clarifying language aside from CACI No. 411.

Defendant cites People v. Fudge (1994) 7 Cal.4th 1075 , 1110 [ 31 Cal.Rptr.2d 321 , 875 P.2d 36 ], for the proposition that when a defendant proposes a jury instruction that is conceptually appropriate but contains some incorrect language, the court has a duty to tailor the instruction so it is acceptable rather than denying it outright. In Fudge, the defendant proposed an instruction relating to the reliability of expert witness testimony which the court found overly argumentative. Rather than ordering the argumentative language removed or revising the instruction to be more neutral, the court declined to give it at all.

We are not confronted here with a situation where the proposed instruction was a substantively correct statement of the applicable law with some problematic language; rather, defendant’s proposed instruction, CACI No. 411, stated a legal principle that was entirely inapplicable to the case. The court had no duty under these circumstances to rewrite the instruction to reflect a principle that was correct. (People v. Gonzales (1992) 8 Cal.App.4th 1658 , 1664 [ 11 Cal.Rptr.2d 267 ], citing People v. Hall (1984) 157 Cal.App.3d 538 , 546 [ 204 Cal.Rptr. 42 , 223 Cal.Rptr. 267 ] [a court has no duty to correct a proposed instruction that is incorrect].)

Even if defendant’s proposed instruction had correctly stated the relevant law regarding causation, the trial court was not required to give it because the jury was already adequately instructed on superseding causation with the pattern instructions for the elements of each charged offense. As we have noted, CALCRIM No. 590 was given to the jury and stated that defendant could be found guilty only if the death or injury was the natural and probable

2. Penal Code Section 1170.1, Subdivision (g)

The question we must answer to determine whether the amended text of Vehicle Code section 23558 allows for a multiple victim enhancement in addition to a separate great bodily injury enhancement is: What did the Legislature intend by saying that Vehicle Code section 23558 should apply “notwithstanding” Penal Code section 1170.1, subdivision (g)? In making that inquiry, we examine the statutes with the primary goal of ascertaining the intent of the Legislature so as to effectuate the purpose of the law. (People v. Allegheny Casually Co. (2007) 41 Cal.4th 704 , 709 [ 61 Cal.Rptr.3d 689 , 161 P.3d 198 ].) “Where more than one reasonable interpretation is possible, courts must select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute.” (City of Patterson v. Turlock Irrigation Dist. (2014) 227 Cal.App.4th 484 , 492 [ 173 Cal.Rptr.3d 651 ].)

Vehicle Code section 23558 (formerly Veh. Code, § 23182) was originally enacted in 1985 in response to the Supreme Court’s decision in Wilkoff v. Superior Court (1985) 38 Cal.3d 345 [ 211 Cal.Rptr. 742 , 696 P.2d 134 ], which held that an intoxicated driver who injures multiple persons in a single collision could be charged with only one count of driving under the influence causing injury. (See Arndt, supra, 76 Cal.App.4th at pp. 394-395 [discussing history of Veh. Code, § 23182].) The statute’s purpose was to increase the available punishment for an intoxicated driver who injures multiple victims after the Wilkoff decision precluded more than one charge for the underlying offense. (Arndt, at pp. 394-395.)

Penal Code section 1170.1, subdivision (g) was enacted in 1997, and its articulated purpose was to “permit the sentencing court to impose both one weapon enhancement and one great-bodily-injury enhancement for all crimes,” as opposed to only certain enumerated crimes under then-existing law. (Ahmed, supra, 53 Cal.4th at p. 168 [discussing history of Pen. Code, § 1170.1, subd. (g) and analyzing legislative history materials].) Before the enactment of Penal Code section 1170.1, subdivision (g), a defendant charged with multiple enhancements for inflicting great bodily injury and use of a firearm or other specified weapon could receive only the greatest of those

Given the expressed intent to merely clarify existing law by making “technical, non-substantive changes,” we cannot agree with the Attorney General that the effect of the 1999 amendment was to change the law in a manner that would allow the Vehicle Code section 23558 multiple victim enhancements to be imposed in addition to great bodily injury enhancements for the same victims. (See City of Patterson v. Turlock Irrigation Dist., supra, 227 Cal.App.4th at p. 492 [“[cjourts may determine the apparent intent of the Legislature by evaluating a variety of extrinsic aids, including the ostensible objects to be achieved by the statute, the evils to be remedied, the statute’s legislative history, and public policy”].)

Arndt, supra, 76 Cal.App.4th 387 , interpreted the existing law before Vehicle Code section 23558 was amended, and it held the law did not allow for both a great bodily injury enhancement and a Vehicle Code section 23558 enhancement for the same victims. We agree with Arndt’s interpretation of the law as it existed at the time. Given the Legislature’s stated intent to “clarif[y] existing law,” we necessarily find the 1999 amendment to Vehicle Code section 23558 does not have the effect of allowing the enhancement to be imposed in addition to a great bodily injury enhancement. (Sen. Rules Com., Off. of Sen. Lloor Analyses, 3d reading analysis of Assem. Bill. No. 1236, supra, as amended Sept. 2, 1999, p. 3.) To find otherwise would interpret the amendment to substantively change, not merely clarify, existing law.

3. Penal Code Section 654

Given the narrow scope of the 1999 amendment and its “technical, non-substantive purpose,” we must consider whether imposing both a multiple victim enhancement and a great bodily injury enhancement for the same victims violates the Penal Code section 654 prohibition against multiple punishments for the same act.

Arndt, supra, 76 Cal.App.4th 387 , held that imposing the Vehicle Code section 23558 enhancement on top of a great bodily injury enhancement violates Penal Code section 654. As we have discussed, we find nothing in the language added to the statute in 1999 that would compel a different conclusion. And since Arndt was decided, the Supreme Court decided Ahmed, supra, 53 Cal.4th 156 , using similar reasoning to hold that multiple sentence

T

he judgment is reversed. The case is remanded for resentencing in a manner that does not impose both an enhancement under Penal Code section 12022.7, subdivision (a) and an enhancement under Vehicle Code section 23558 for the same victims.

Rushing, P. J., and Premo, J., concurred.

Appellant’s petition for review by the Supreme Court was denied August 9, 2017, S242013.