P. v. Wiley

Filed 1/9/09 P. v. Wiley CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. Frank A. Hoover, Judge.

James H. Dippery, Jr., 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, Judy Kaida and J. Robert Jibson, Deputy Attorneys General, for Plaintiff and Respondent.

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Procedural History

Defendant Kenneth Wiley was convicted after jury trial of vehicular manslaughter with gross negligence (Pen. Code,^[1] 192, subd. (c)(1)) and of hit-and-run driving after an accident involving death or serious injury (Veh. Code,  20001, subd. (a)). In a bifurcated proceeding, the trial court also found that Wiley had suffered a prior strike conviction within the meaning of section 667, subdivisions (c)-(j) and section 1170.12, subdivisions (a)-(e), and that he had served two prior prison terms within the meaning of section 667.5, subdivision (b). Wiley was sentenced to a total of 10 years in state prison. The court imposed the middle term of four years, doubled to eight years on the vehicular manslaughter count, plus an additional two years for the two prior prison terms. A concurrent middle term of four years was imposed for the hit-and-run count.

Factual Summary

On April 12, 2005, Wiley was driving a blue Suzuki in Bakersfield, California. His passengers included Kalani Romero and a friend named John Ellis, called Moses. Wiley increased his speed after seeing that a car carrying some acquaintances began chasing them from behind. Wiley ran a stop sign and collided with a vehicle driven by Debbie Davis. The Suzuki was traveling at a speed of approximately 20 miles per hour. Witnesses saw Wiley help Romero out of the car and flee the scene on foot. Romero, who had difficulty standing and was bleeding, ultimately returned to the scene to receive medical aid and told police that Wiley was the driver of the Suzuki. Ellis died as a result of his injuries. Through DNA testing, Wiley was linked to blood found on the deployed driver air bag in the Suzuki. When contacted later by police, Wiley provided inconsistent explanations for his residual injuries.

Wileys defense was that Romero, not he, was driving the car. Gerald Scott, a parolee who knew Romeros boyfriend, testified that he saw Romero driving the Suzuki 10 minutes before the crash and that Wiley was not in the car. According to Scott, Wiley arrived at the scene in a separate vehicle, assisted Romero, and then drove off.

Discussion

Wiley contends that the trial court failed to provide proper instruction to the jury on the lesser-included offense of vehicular manslaughter without gross negligence (simple vehicular manslaughter). ( 192, subd. (c)(2).) According to Wiley, the court did not give a specific simple vehicular manslaughter instruction but merely advised the jury that vehicular manslaughter without gross negligence is a lesser-included offense of the offense charged. Wiley claims that, because the evidence supports a finding that Wiley acted without gross negligence, the court was required to give complete instruction on the lesser-included offense and that he was prejudiced as a result of the trial courts failure to do so. We agree that a trial court has a sua sponte duty to instruct on all lesser-included offenses supported by the evidence. (People v.Barton (1995) 12 Cal.4th 186, 194-195.) We also agree that the evidence would have supported a finding that Wiley acted only with mere ordinary negligence had the jury made such a finding. It is here our agreement with Wiley ends.

The trial court in this case recognized its duty and instructed the jury on both the charged offense of gross vehicular manslaughter and the lesser-included offense of simple vehicular manslaughter. The jury was told that Wiley was charged with gross vehicular manslaughter. The instructions identified the elements of the charged offense. The instructions also told the jury that if it was not satisfied beyond a reasonable doubt that [Wiley was] guilty of the crime charged, [it could], nevertheless, convict him of any lesser crime, if [it was] convinced beyond a reasonable doubt that he is guilty of the lesser crime. Immediately thereafter, the court instructed the jury that the crime of vehicular manslaughter without gross negligence was the lesser-included crime to the offense of vehicular manslaughter with gross negligence.

The court told the jury that gross negligence means conduct that is more than ordinary negligence and that ordinary negligence is the failure to exercise ordinary or reasonable care. The court instructed the jury that both offenses required the union of an act and criminal negligence and that both offenses were general intent crimes. Finally, the court told the jury that gross negligence is a negligent act that is aggravated, reckless, or flagrant, which is departure from the conduct of an ordinarily prudent, careful person under the same circumstances as to be contrary to a proper regard and to a danger to human life or to constitute indifference to the consequences of these acts. Gross negligence, the jury was told, does not include inattention, mistake in judgment, or misadventure . (See People v. Bennett (1991) 54 Cal.3d 1032, 1036 [gross negligence is exercise of so slight a degree of care as to raise presumption of conscious indifference to consequences; an I dont care what happens attitude]; People v. Thompson (2000) 79 Cal.App.4th 40, 54 [gross negligence involves aggravated, reckless, or flagrant disregard for human life, or indifference to consequences of ones conduct].)

Although the trial court did not expressly list all of the elements of simple vehicular manslaughter in one instruction, all elements of the offense were identified in the instructions given.^[2] The correctness of jury instructions is determined from the entire charge of the court and not from consideration of parts of the instruction or the absence of a particular instruction. (People v.Harrison (2005) 35 Cal.4th 208, 252.) The absence of an element in one instruction may be provided by another. (People v. Dell (1991) 232 Cal.App.3d 248, 265.) The instructions clearly delineate the two offenses from each other.

In any event, even if it was error to omit an instruction specifically identifying the elements of simple vehicular manslaughter, there is no prejudice. The law in California provides that instructional error is not reversible unless an examination of the record establishes a reasonable probability that the error affected the outcome. (People v.Breverman (1998) 19 Cal.4th 142, 165.) Here, the jury found gross negligence, and there is sufficient evidence to support it findings. Having found gross negligence, even though it was fully aware of its right to find that Wiley acted only with ordinary negligence, it is unlikely that the jury would have reached a different verdict had the court given a separate instruction delineating the elements of the lesser-included offense. (See People v. Barnett (1998) 17 Cal.4th 1044, 1156 [trial courts failure to instruct on lesser-included offense is not prejudicial if jury necessarily resolves factual question adversely to defendant under other instructions].)

The Attorney General reads Wileys arguments on appeal as including a challenge to the sufficiency of the evidence to support the conviction. We do not agree. Wiley does not raise the sufficiency of the evidence to support the conviction as a distinct challenge to the judgment on appeal, although he argues that the lack of evidence to support a finding of gross negligence gave rise to the duty to instruct on simple vehicular manslaughter. He does not address the relevant standard of review for challenging sufficiency of the evidence, nor does he present argument challenging the sufficiency of the evidence to support the conviction. Even if Wiley intended to raise this challenge, where an appellant makes only passing reference to a challenge to the judgment, does not otherwise offer legal argument developing the challenge, and cites no authority to support the challenge, the issue is waived on appeal. (See Stevenson v. Baum (1998) 65 Cal.App.4th 159, 167, fn. 8.) In any event, we would find sufficient evidence to support the jurys verdict. The jury could reasonably have found that Wileys interaction with the car carrying his acquaintances moments before the accident led to his reckless manner of driving. His flight from the car was further evidence of an I dont care attitude. The test is objective. It asks whether a reasonable person in the defendants position would have been aware of the risk involved and whether a reasonable person would have acted differently as a result of his or her awareness of the risk. (People v. Bennett, supra, 54 Cal.3d at p. 1036.)

Likewise, we do not read Wileys briefing as raising a challenge to the adequacy of the instruction given on the mens rea of the charged offense. The jury was fully and properly instructed on the mental state required to support a finding of gross negligence. (People v. Bennett, supra, 54 Cal.3d at p. 1036.)

Disposition

Judgment affirmed.

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^*Before Wiseman, Acting P.J., Dawson, J., and Hill, J.

^[1]All further references are to the Penal Code unless otherwise noted.

^[2]Section 192, subdivision (c)(2), defines the offense as [d]riving a vehicle in the commission of an unlawful act, not amounting to felony, but without gross negligence; or driving a vehicle in the commission of a lawful act which might produce death, in an unlawful manner, but without gross negligence.