People v. Cady

Opinion

Arising from an incident in which William Daniel Cady drove his vehicle at an excessive and unsafe speed while intoxicated, resulting in an

On the evening of January 10, 2014, Cady and his friends Dustin Barr, Jeff Becker, Taylor Bednarski, Shon Gilliam and Trevor Rodgers drove in Cady’s Cadillac Escalade for a night of drinking in local bars in San Diego. After leaving the second bar around 11:00 p.m., the group got back into the Escalade, and Cady drove onto Interstate 805 toward the transition ramp to State Route 52, with the goal of returning back to Bednarski and Rodgers’s house.

As Cady approached the transition to State Route 52 he was traveling at a high rate of speed, and several of his passengers told him to slow down. Cady replied with a statement such as, “I’ll drive this fucking car however the fuck I want,” and then accelerated further. One witness also remembered Cady laughing like somebody who ‘“lost their mind” as he accelerated. Shortly after accelerating, Cady lost traction on his vehicle as he went around a curve, causing the Escalade to roll at least five times, travel up an embankment and then slide back onto the freeway. Another vehicle then impacted the Escalade, causing the Escalade to spin to its final position. During the accident four of the passengers—Barr, Bednarski, Gilliam and Rodgers—were ejected from the vehicle. Bednarski and Gilliam died immediately from blunt force trauma. Barr and Rodgers were seriously injured, but survived. Becker died at the scene inside the Escalade from blunt force trauma. An accident reconstruction expert calculated that Cady was driving between 87 and 97 miles per hour when he lost control of the vehicle.

Based on a blood draw from Cady after the accident, an expert concluded that depending on whether the alcohol that Cady had consumed that evening was already fully absorbed into his system, Cady’s blood-alcohol level during the accident was between 0.1 and 0.18. Another expert testified that based on an analysis of the cannabinoids in Cady’s blood drawn at 2:18 a.m., Cady had used marijuana within hours of the blood draw, and the level of active cannabinoids would have been significantly higher during the accident than during the blood draw. The expert witness testified that the combination of active marijuana with alcohol produces an “additive effect,” which is an increase in the impairing effect of both drugs, so that “the combination of those two [drugs] at the same time produces an effect greater than either substance on its own.”

Cady was tried on three counts of second degree murder (Pen. Code, § 187, subd. (a)) (counts 1-3); three counts of gross vehicular manslaughter while intoxicated {id., § 191.5, subd. (a)), with the further allegation that he

At trial, defense counsel stated during closing argument that Cady was taking responsibility for the gross vehicular manslaughter charges in counts 4 through 6 and the driving under the influence charges in counts 7 through 9. He urged the jury to return a verdict of guilty on those counts but to find Cady not guilty on the murder counts.

The jury found Cady not guilty of murder, but found him guilty of all of the other counts and made true findings on all of the factual allegations.

The trial court sentenced Cady to 18 years in prison, selecting count 8 as the principal term, with the sentences on each of the other counts stayed pursuant to Penal Code section 654.

DISCUSSION

A. The Offense of Driving Under the Influence of Alcohol Causing Injury Is Not a Lesser Included Offense of Driving Under the Combined Influence of Alcohol and a Drug Causing Injury

We first consider Cady’s argument that he should not have been convicted in count 7 for driving under the influence of alcohol causing injury (Veh. Code, § 23153, subd. (a)) because that offense is a lesser included offense of driving under the combined influence of alcohol and a drug causing injury (id,, § 23153, subd. (1)), for which he was convicted in count 9.

Although “it is generally permissible to convict a defendant of multiple charges arising from a single act or course of conduct,” a “ ‘judicially created exception to this rule prohibits multiple convictions based on necessarily included offenses. [¶] When a defendant is found guilty of both a greater and a necessarily lesser included offense arising out of the

In deciding whether multiple convictions are barred because one offense is a lesser included offense of the other, we apply the “elements” test. (People v. Reed (2006) 38 Cal.4th 1224 , 1229 [ 45 Cal.Rptr.3d 353 , 137 P.3d 184 ].) “ ‘Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former.’ ... In other words, ‘ “[i]f a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former.” ’ ” (Sanders, supra, 55 Cal.4th at p. 737, citation omitted.) We therefore turn to the statutory elements of the two provisions at issue here.

As provided in Vehicle Code section 23153, subdivision (a), “It is unlawful for a person, while under the influence of any alcoholic beverage 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), italics added.) Under Vehicle Code section 23153, subdivision (1), “It is unlawful for a person, while 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. (1), italics added.) The two code provisions are identical except for the italicized portions indicated above.

“California’s first drunk driving statute, enacted in 1913, prohibited any ‘intoxicated person’ from driving a motor vehicle on a public highway. (Stats. 1913, ch. 326, § 17, p. 646; [citation].) The prohibition was later redefined as driving ‘under the influence’ of alcohol.” (People v. McNeal (2009) 46 Cal.4th 1183 , 1192 [ 96 Cal.Rptr.3d 261 , 210 P.3d 420 ] (McNeal). The crime of driving under the influence of drugs was added in 1927. (Stats. 1927, ch. 752, § 112, p. 1436 [making it unlawful for a person to drive when “under the influence of . . . narcotic drugs”].)

Apparently because prosecutors were having difficulty obtaining convictions against persons who drove in an impaired state after having consumed

Case law from our Supreme Court has long defined what is required to establish that someone has driven under the influence of alcohol, as that term is used in Vehicle Code section 23153, subdivision (a). A person is “ ‘under the influence’ ” of alcohol within the meaning of the Vehicle Code if the alcohol “ ‘so far affected the nervous system, brain or muscles as to impair to an appreciable degree the ability to operate the vehicle in a manner like that of an ordinarily prudent and cautious person in the full possession of his faculties, using reasonable care and under like conditions.’ ” (People v. Haeussler (1953) 41 Cal.2d 252 , 261 [ 260 P.2d 8 ]; see also McNeal, supra, 46 Cal.4th at p. 1193.) As Haeussler explained when first approving this definition, “persons may be ‘under the influence of intoxicating liquor’ within the meaning of [the Vehicle Code] without being affected to the extent commonly associated with ‘intoxication’ or ‘drunkenness,’ ” as long as the alcohol has impaired the safe operation of a vehicle to an appreciable degree. (Haeussler at p. 262.)

The same definition of “under the influence” applies to the crime of driving “under the combined influence of any alcoholic beverage and drug” in violation of Vehicle Code section 23153, subdivision (1). (See McNeal, supra, 46 Cal.4th at pp. 1192-1193, quoting Byrd v. Municipal Court (1981) 125 Cal.App.3d 1054 , 1058 [ 178 Cal.Rptr. 480 ] [“ ‘To be “under the influence” within the meaning of the Vehicle Code, the . . . liquor and drug(s) must have so far affected the nervous system, the brain, or muscles as to impair to an appreciable degree the ability to operate a vehicle in a manner like that of an ordinarily prudent and cautious person in full possession of his faculties.’ ”].)

As a matter of logic, there are several possible ways for a person to violate Vehicle Code section 23153, subdivision (f)’s proscription on driving while under the combined influence of any alcoholic beverage and drug: (1) to drive after having consumed enough alcohol to independently impair the person’s ability to drive and enough drugs to independently impair the person’s ability to drive; (2) to drive after having consumed enough alcohol to independently impair the person’s ability to drive, along with taking drugs that increase the level of impairment to an appreciable degree, but which, when taken alone, would not have made it unsafe to drive; (3) to drive after having taken enough drugs to independently impair the person’s ability to drive, along with having consumed an amount of alcohol that increases the person’s level of impairment to an appreciable degree, but which, when consumed alone, would not have made it unsafe to drive; and (4) to drive after having consumed a combination of drugs and alcohol, either one of which when taken alone may not have been sufficient to cause impairment, but which, when taken together, impaired the person’s ability to drive because of a synergistic or additive effect or other physiological or psychological process that causes multiple substances to work together to cause impairment. Under either the third or fourth scenario set forth above, a defendant convicted of violating section 23153, subdivision (1) by driving under the combined influence of alcohol and drugs would not have consumed enough alcohol to cause impairment had the alcohol been consumed by itself. That person will therefore not have violated section 23153, subdivision (a) by driving under the influence of alcohol because the alcohol itself would not have “ ‘so far affected the nervous system, brain or muscles as to impair to an appreciable degree the ability to operate the vehicle in a manner like that of an ordinarily prudent and cautious person in the full possession of his faculties, using reasonable care and under like conditions.’ ” (Haeussler, supra, 41 Cal.2d at p. 261.) Accordingly, there are some situations in which a

The first issue is whether Cady’s argument fails because any error in failing to instruct on the lesser included offense was invited by Cady, barring him from raising the error on appeal.

“A trial court has a sua sponte duty to ‘instruct on a lesser offense necessarily included in the charged offense if there is substantial evidence the defendant is guilty only of the lesser.’ . . . Substantial evidence in this context is evidence from which a reasonable jury could conclude that the defendant committed the lesser, but not the greater, offense. . . . [T]he court need instruct the jury on a lesser included offense only ‘[wjhen there is substantial evidence that an element of the charged offense is missing, but that the accused is guilty of ’ the lesser offense.” (People v. Shockley (2013) 58 Cal.4th 400 , 403-404 [ 165 Cal.Rptr.3d 497 , 314 P.3d 798 ], citations omitted (Shockley).) A trial court errs in failing to instruct on a lesser included offense supported by the evidence “ ‘ ‘“even when as a matter of trial tactics a defendant not only fails to request the instruction but expressly objects to its being given.” ’ ” (Souza, supra, 54 Cal.4th at p. 114.)

Nevertheless, even in instances where the trial court errs by failing to instruct on a lesser included offense supported by the evidence, ‘“the claim may be waived under the doctrine of invited error if trial counsel both ‘ “intentionally caused the trial court to err” ’ and clearly did so for tactical reasons. [Citation.] Invited error will be found . . . only if counsel expresses a deliberate tactical purpose in resisting or acceding to the complained-of instruction.” (Souza, supra, 54 Cal.4th at p. 114.) “ ‘[A] defendant may not invoke a trial court’s failure to instruct on a lesser included offense as a basis on which to reverse a conviction when, for tactical reasons, the defendant persuades a trial court not to instruct on a lesser included offense supported by the evidence. [Citations.] In that situation, the doctrine of invited error bars the defendant from challenging on appeal the trial court’s failure to give the instruction.’ ” (People v. Horning (2004) 34 Cal.4th 871 , 905 [ 22 Cal.Rptr.3d 305 , 102 P.3d 228 ] (Horning).)

For us to find that the doctrine of invited error applies, “the record must show only that counsel made a conscious, deliberate tactical choice between having the instruction and not having it. If counsel was ignorant of the choice, or mistakenly believed the court was not giving it to counsel, invited error will not be found. If, however, the record shows this conscious choice, it need not additionally show counsel correctly understood all the legal implications of the tactical choice. Error is invited if counsel made a

Here, the record overwhelmingly shows that defense counsel made a deliberate tactical choice to forgo an instruction on the lesser included offense to gross vehicular manslaughter. When discussing jury instructions, the following exchange took place between the trial court and defense counsel:

‘“The Court: Are you affirmatively requesting that court not provide [lesser included offenses]?

‘“[Defense counsel]: I am.

‘“The Court: Because as I read it, I have a sua sponte duty. And in some cases even over the defense objection, to provide [lesser included offenses].

‘“[Defense counsel]: We let me—my view is, based on our opening statement and our overall strategy, is we are admitting guilt as to counts 4 through 9. I don’t see any utility in requesting [lesser included offenses] on any of those. ... So because of that, that’s why I’m . . . asking the court to not give those. That’s my train of thought.

‘“The Court: Yes. And so long as the court is convinced that there’s no way that the conduct in this case is something less than what the greater charge is, then the court doesn’t have to give [a lesser included offense] under those circumstances. Basically, we’re in agreement that the facts, as they’ve been presented in the case, are no less than a vehicle manslaughter while intoxicated with gross negligence.

‘“[Defense counsel]: Okay.”

The prosecutor concurred with the approach of not instructing on lesser included offenses, and the trial court then inquired whether defense counsel had discussed the particular strategy with Cady and whether Cady was in agreement. Defense counsel indicated that Cady had agreed with the strategy.

Consistent with the strategy selected by defense counsel, during closing argument defense counsel stated to the jury that Cady was taking responsibility for committing gross vehicular manslaughter as charged in counts 4 through 6 and argued that the jury should find him guilty on those counts but find him not guilty of murder. Defense counsel specifically stated, ‘“It’s undisputed that Mr. Cady operated a vehicle in a grossly negligent manner” and repeated the substance of that statement two other times during closing argument, conceding that Cady acted with gross negligence. In short, the

We may consider defense counsel’s statements during closing argument when determining whether an error in instructing the jury was prejudicial. (People v. D’Arcy (2010) 48 Cal.4th 257 , 297 [ 106 Cal.Rptr.3d 459 , 226 P.3d 949 ] [the trial court’s error in failing to instruct that the special circumstance of murder in the commission of mayhem is inapplicable if the mayhem was merely incidental to the murder was harmless because defense counsel did not argue that the mayhem was merely incidental].) Here, as we have explained, during closing argument defense counsel repeatedly stated that Cady’s actions amounted to gross vehicular manslaughter and urged the jury to return a guilty verdict on counts 4 through 6. Based on defense counsel’s concession that Cady was guilty of gross vehicular manslaughter while intoxicated, it is not reasonably probable that the jury would have found Cady guilty of the lesser included offense of vehicular manslaughter without gross negligence while intoxicated had it been given that option. Therefore, even if Cady could establish that the trial court erred, any error was harmless.

III.

DISPOSITION

The judgment is affirmed.

McConnell, P. J., and Aaron, J., concurred.

Appellant’s petition for review by the Supreme Court was denied March 22, 2017, S239879.