P. v. Jeffries

Filed 3/4/08 P. v. Jeffries CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

Stephen Mann Jeffries (defendant) was convicted of two counts of vehicular manslaughter with gross negligence (Pen. Code,  192, subd. (c)(1))[1] based upon a collision caused by defendant that resulted in the deaths of two people and serious injury to four others.

Defendant contends: (1) the convictions for vehicular manslaughter with gross negligence are not supported by substantial evidence; (2) the prosecution committed prejudicial misconduct; (3) the great bodily injury enhancements were barred by section 12022.7, subdivision (g); (4) there was no substantial evidence to support the great bodily injury enhancements; and (5) the jury instructions failed to inform the jurors of the general intent required for the section 12022.7 enhancements.

We shall find no prejudicial error and affirm the judgment.

Facts

In the morning of October 8, 2005, William Bingham went to the Santa Rosa residence of Karen Larsen, where he shared a quarter bag of methamphetamine with Larsen and defendant. When defendant stated that he was going to go home, Larsen tried unsuccessfully to stop him from driving because he seemed tired. Defendant left Larsens residence in a black Nissan truck at approximately 3:00 p.m.

Later that afternoon, Chris Hilldore and his girlfriend, Elizabeth Ready, were driving north on Highway 29 near Yountville. Ready noticed a vehicle weaving back and forth within the lane and occasionally touching the center line. She observed that the driver was reaching into the center console or the passenger seat, and this went on for a couple minutes. Then, for a while, the driver stopped looking for whatever he was looking for and seemed to be driving more normal. He then resumed bending over or looking . . . for something. He began [s]ort of passing over the yellow line on the left, kind of swerving in and out of that yellow line, and staying very close to it, hugging it. She observed this behavior repeatedly, over what [she] thought was a long distance and an unusual distance . . . to be up and down. Just before the accident she noticed his head dip below the dashboard, and then he crossed over the center line.

Hilldore also observed the vehicle swerving in the lane and hugging the yellow line. Hilldore could see that [the driver] was not fully paying attention to the road. He was fumbling around looking for something in the passenger seat, in the center console, and while he was doing that he was kind of swerving a little bit . . . . The driver was weaving over towards the shoulder on the left-hand side. He was crossing that yellow line pretty consistently. Hilldore saw the driver cross the yellow line [p]robably six times, and each time the driver was looking down towards his passenger seat, center console, and his arm was moving around. Hilldore then saw the vehicle swerve directly into the oncoming traffic . . . all the way over to the southbound shoulder. He then saw the driver look up and try to correct and come back over. As the driver attempted to return to the northbound lane, he collided with a southbound van. He hit the van at . . . the passenger front side, at an angle. The driver of a nearby bus testified that the driver of the van had no opportunity to avoid the collision because it happened within a second.

Dorothy Claiborne was the driver of the van. Two of her passengers, Shirley Lennon and Carlota De Vera, died of their injuries. Claiborne and her other passengers, Debra Giltner, Kristi Caeser and Margarita Brockhaus, were seriously injured.

Defendant was the driver of the black Nissan Pathfinder that crossed into oncoming traffic. He did not suffer any serious injuries. He told a doctor at the hospital that he had consumed methamphetamine. Tests confirmed the presence of methamphetamine in defendants bloodstream, but an expert testified the test was inconclusive as to whether defendant was under the influence at the time of the accident or whether the numbers indicated residuals from earlier use.

The jury acquitted defendant of two counts of gross vehicular manslaughter while intoxicated ( 191.5, subd. (a)) and of one count of driving under the influence and causing injury (Veh. Code,  23153, subd. (a)), but convicted defendant of two counts of gross vehicular manslaughter in violation of section 192, subdivision (c)(1). The jury also found true, in connection with the manslaughter of Shirley Lennon (count three), allegations that he personally inflicted great bodily injury on her, and on each of the four other passengers that survived the collision. ( 12022.7, subd. (a).) In connection with the manslaughter of Carlota De Vera, the jury found true an allegation that defendant personally inflicted great bodily injury upon a person who was 70 years or older. ( 12022.7, subd. (c).)

The court imposed the midterm of four years on count three, and a consecutive term of one-third the midterm, or one year four months, on count four. It also imposed a three-year consecutive term for the section 12022.7, subdivision (a) enhancement with respect to Kristi Caesar, and another three-year consecutive term for the section 12022.7, subdivision (a) enhancement with respect to Debra Giltner. With respect to Dorothy Claiborne and Margarita Brockhaus, the court imposed but stayed execution of three-year consecutive terms for the section 12022.7, subdivision (a) enhancements.

Discussion

I.

Sufficiency of the Evidence of Gross Negligence

Defendant first contends that his conviction on the two counts of vehicular manslaughter with gross negligence must be reversed because the evidence was insufficient to support a finding of gross negligence. He contends the evidence showed that he committed only a single act of negligence consisting of crossing over the yellow line for a period of 1-1/2 seconds, resulting from 3-4 seconds of inattention . . . and that he reacted and attempted to correct his error in under a second. He asserts there was no evidence of other factors that would support a finding of gross negligence because his acquittal on counts of gross vehicular manslaughter while intoxicated signals that the jury did not find he was under the influence of methamphetamine, and there was no evidence he committed multiple traffic violations, or had engaged in prior similar conduct.

When reviewing the sufficiency of the evidence, this court must view the evidence in the light most favorable to the judgment. This court may not reweigh the evidence or redetermine the credibility of witnesses. We also draw all reasonable inferences and resolve all conflicts in favor of the judgment. (People v. Johnson (1980) 26 Cal.3d 557, 576; People v. Poe (1999) 74 Cal.App.4th 826, 830.) Yet, defendants argument relies only upon evidence in his favor, and disregards conflicting evidence or inferences that support the jurys finding of gross negligence.

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 dont care what happens.   (People v. Bennett (1991) 54 Cal.3d 1032, 1036.) The determination is made by applying an objective test: if a reasonable person in defendants position would have been aware of the risk involved, then defendant is presumed to have had such an awareness. (People v. Watson (1981) 30 Cal.3d 290, 296.) [G]ross negligence may be shown from all the relevant circumstances, including the manner in which the defendant operated his vehicle, the level of his intoxication, and any other relevant aspects of his conduct. (People v. Ochoa (1993) 6 Cal.4th 1199, 1207.) The jury may consider all of the circumstances in assessing whether the defendant acted with a conscious disregard of the consequences rather than mere inadvertence. (People v. Bennett, supra, at p. 1038.)

The evidence, when viewed in the light most favorable to the judgment, shows that defendants conduct consisted of far more than crossing over the yellow line for a period of 1-1/2 seconds, resulting from 3-4 seconds of inattention . . ., and supports the jurys finding of gross negligence. Ready observed that the defendant was reaching into the center console or the passenger seat. She testified that this went on for a couple minutes, and then resumed just before the accident. Rather than a single moment of in attention, Ready observed defendant do this repeatedly, over what [she] thought was a long distance and an unusual distance . . . to be up and down. While defendant was engaging in this conduct, he was weaving in his lane, which would have alerted a reasonable person that this behavior risked losing control. Nonetheless, defendant persisted. Moreover, defendant did not merely momentarily cross the yellow line. He did so repeatedly, and ultimately swerved all the way over to the southbound shoulder. When he finally looked up and saw what he had done, he tried to correct by deliberately swerving back into the oncoming traffic. In the circumstances, consisting of driving at 55 to 60 miles an hour in what Claiborne, in a statement, described as bumper-to-bumper traffic, the jury could rationally conclude that any reasonable person would have been aware that such conduct risked serious, even deadly, consequences, and that defendant exhibited conscious indifference to them.

II.

Prosecutorial Misconduct

Defendant next contends that the prosecutor engaged in misconduct by stating that defendant, in closing argument, admitted he was guilty of ordinary negligence only because there were no special allegations related to that lesser offense.[2] He asserts this argument improperly suggested the jury should consider punishment as a factor in determining his guilt or innocence. Defendant also contends the prosecutor misstated the law by arguing that general intent is identical to the intent required for gross negligence. He further asserts the prosecutor improperly appealed to passion and prejudice by urging the jury to do the right thing for justice, and for these victims. . . . Thats what they deserve. They deserve your verdicts of guilty . . . . He concludes that the cumulative effect of the prosecutors misconduct deprived him of his right to a fair trial and due process under the federal constitution.

A prosecutors conduct violates a defendants federal constitutional rights when the behavior comprises a pattern of conduct  so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process. [Citations.] (People v. Espinoza (1992) 3 Cal.4th 806, 820.) The focus of the inquiry is on the effect of the prosecutors action on the defendant, not on the intent or bad faith of the prosecutor. Conduct that does not render a trial fundamentally unfair is error under state law only when it involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.  [Citations.] (Ibid.)

It is misconduct for a prosecutor to comment on the penalty a defendant will receive or to suggest that the jury should consider punishment as a factor in determining guilt or innocence. (People v. Mendoza (1974) 37 Cal.App.3d 717, 727.) We, however, need not resolve the question whether the prosecutors reference to the absence of special allegations would reasonably be understood by the jury as arguing the punishment would not be sufficiently severe because, even if we assume arguendo that the argument constituted misconduct, it was harmless.

Prosecutorial misconduct is cause for reversal only when it is reasonably probable that a result more favorable to the defendant would have occurred had the district attorney refrained from the comment . . . .  (People v. Milner (1988) 45 Cal.3d 227, 245.) Here, when defendant objected to the prosecutors first reference to the absence of special allegations, the court admonished the jury that the consequences are something that the jury is not to consider during your deliberations. Moreover, the court correctly instructed the jury, pursuant to CALCRIM No. 200, that [y]ou must reach your verdict without any consideration of punishment. It is assumed the jury followed the admonishment, and the instructions, and that prejudice was thereby avoided. (People v. Nguyen (1995) 40 Cal.App.4th 28, 36-37.)

Defendant waived any contention that the prosecutors two subsequent references to the absence of special allegations constituted misconduct by failing to interpose a timely objection. (In re Sheena K. (2007) 40 Cal.4th 875, 880, fn. 1; People v. Ayala (2000) 23 Cal.4th 225, 284.) The necessity of a timely objection is not excused on the ground that an objection or request for admonition would have been futile (see People v. Arias (1996) 13 Cal.4th 92, 159-160), because in response to the initial objection the court did admonish the jury not to consider the penalty in determining guilt. There is no basis in the record for inferring the court would have responded any differently to subsequent objections.[3]

Defendants contention that the prosecutor committed misconduct by arguing that there was no difference between the intent required for ordinary and gross negligence is also waived because he did not interpose a timely objection. (In re Sheena K., supra, 40 Cal.4th at p. 880, fn. 1; People v. Ayala, supra, 23 Cal.4th at p. 284.) In any event, assuming arguendo that the argument did misstate the law, we would find no prejudice. Arguments of counsel generally carry less weight with a jury than do instructions from the court. The former are usually billed in advance to the jury as matters of argument, not evidence [citation], and are likely viewed as the statements of advocates; the latter, we have often recognized, are viewed as definitive and binding statements of the law. (Boyde v. California (1990) 494 U.S. 370, 384; see also People v. Sanchez (1995) 12 Cal.4th 1, 70.) The court gave the jury correct instructions on the definitions of gross negligence and ordinary negligence, and we presume that the jury relied on the instructions, not the arguments, in convicting defendant. (People v. Morales (2001) 25 Cal.4th 34, 47.)

Finally, defendant also waived his contention that the prosecutor committed misconduct by urging the jury to [d]o the right thing for justice, and for these victims, and for these victims that got hurt. Thats what they deserve. They deserve your verdicts of guilty of these crimes, because, again, he made no objection. A timely admonition could have reminded the jury that it must base its decision on the evidence, not passion or prejudice, and so would have cured any prejudice. In any event, we see no reasonable probability that the prosecutors brief and isolated comments could have influenced the jurys guilt determination. (People v. Medina (1995) 11 Cal.4th 694, 759-760 [no prejudice caused by prosecutors urging to do the right thing, to do justice, not for our society, necessarily or exclusively, but for [the victim]].)

III.

Great Bodily Injury Enhancements

Defendant next contends that the great bodily injury enhancements pursuant to section 12022.7, subdivision (a), found true in connection with the conviction in count three (vehicular manslaughter with gross negligence of Shirley Lennon), must be stricken because subdivision (g) of section 12022.7 states: This section shall not apply to murder or manslaughter or a violation of Section 451 or 452.

Before addressing the argument, it is important to clarify that the jury found true, in connection with count three, allegations pursuant to section 12022.7, subdivision (a) with respect to the manslaughter victim, Shirley Lennon, and the four other occupants of the vehicle that survived the collision: Debra Giltner, Dorothy Claiborne, Margarita Brockhaus and Kristi Caesar. ( 12022.7, subd. (a).) The court, however, sentenced defendant only on the enhancements to count three involving Debra Giltner, Dorothy Claiborne, Margarita Brockhaus, and Kristi Caesar.[4]

In People v. Verlinde (2002) 100 Cal.App.4th 1146 (Verlinde), the court construed subdivision (g) to preclude a section 12022.7 enhancement for infliction of great bodily injury on a murder or manslaughter victim, but held it did not bar section 12022.7 enhancements with respect to other victims when the defendants conduct kills one victim and injures others. The court reasoned: The language of section 12022.7, subdivision (g) does not limit application of the statute to this vehicular manslaughter case where, in addition to the homicide victim, . . . other victims suffered great bodily injury. The statutory exemption for murder and manslaughter is intended to bar imposition of an enhancement for the injuries inflicted on the homicide victim, who obviously has suffered great bodily injury. Thus, the statutory exemption prevents prohibited dual punishment for the same crime. [Citation.] When a defendant engages in violent conduct that injures several persons, he may be separately punished for injuring each of those persons, notwithstanding section 654. [Citation.] [Citation.] Verlindes argument is inconsistent with a fundamental objective of our penal justice system, namely that ones culpability and punishment should be commensurate with the gravity of both the criminal act undertaken and the resulting injuries. [Citation.] Furthermore, a fundamental principle of statutory construction is that the language of a statute should not be given a literal meaning if doing so would result in absurd consequences which the Legislature did not intend. (Id. at pp. 1168-1169; see also People v. Weaver (2007) 149 Cal.App.4th 1301, 1335.)

We find the reasoning of Verlinde, supra, 100 Cal.App.4th 1146 persuasive, and conclude that subdivision (g) of section 12022.7 did not bar subdivision (a) enhancements with respect to the four other victims who were injured in the collision that killed Shirley Lennon.

IV.

Sufficiency of Evidence to Support Section 12022.7, Subdivision (a) Enhancements

Defendant next contends that insufficient evidence supports the section 12022.7, subdivision (a) enhancements because there was no evidence he had the general intent to inflict injury on the occupants of the vehicle with which he collided. He also contends the evidence only supported the conclusion that the unlawful act of driving across the center line was inadvertent and accidental, not intentional.

Section 12022.7, subdivision (a) does not require any intent, be it general or specific, to cause or inflict injury. Prior to January 1, 1996, section 12022.7 included the phrase with the intent to inflict the injury (Stats. 1994, ch. 873, 3, p. 4427.) In 1995, the Legislature amended the statute by deleting this phrase. (Stats. 1995, ch. 341,  1, p. 1851.) Section 12022.7 [now] requires a person personally inflict great bodily injury on another in the commission or attempted commission of a felony. . . . [I]t does not require that the infliction be willful. The section has been interpreted to require only a general criminal intent, i.e., the defendant need not intend great bodily injury result, the only intent required is that for the underlying felony. (People v. Lewis (2004) 120 Cal.App.4th 837, 853, citing Verlinde, supra, 100 Cal.App.4th at pp. 1165-1168, People v. Carter (1998) 60 Cal.App.4th 752, 755-756.)

The intent required for the underlying felony, i.e., vehicular manslaughter with gross negligence, is the general intent to drive the vehicle in an unlawful manner (see People v. Jones (1985) 164 Cal.App.3d 1173, 1182) with gross negligence.[5] The evidence of general intent to drive in an unlawful manner was substantial. The specific unlawful act alleged was that defendant drove across the double yellow line in violation of Vehicle Code section 21460, subdivision (a). Hilldore testified that defendant was weaving over towards the shoulder on the left-hand side. He was crossing that yellow line pretty consistently. It is inferable that defendant was aware that looking down or over into the passenger seat was causing him to swerve close to, or across, the yellow line. Nonetheless, he continued to engage in this behavior until he went all the way over onto the opposite shoulder, and then deliberately swerved back into the oncoming traffic. This evidence supports a finding that he had general intent to drive the vehicle in an unlawful manner by crossing the double yellow line.

V.

CALCRIM NO. 3160

Finally, defendant contends that because CALCRIM No. 3160 pertaining to the section 12022.7 enhancements does not include any instruction defining general intent, the jury could conclude that it need not find general intent, i.e., that defendant intentionally committed the unlawful act of the underlying felony of vehicular manslaughter.

The instructions were correct. The court also gave CALCRIM No. 250, which explains, In order to be guilty of the crimes charged, a person must not only commit the prohibited act, but must do so intentionally or on purpose. (Italics added.) This instruction states that it applies to [e]very crime charged in this case. Defendant acknowledges this instruction on general intent was given, but suggests that the jury might conclude that it was inapplicable to its finding under section 12022.7 because it is an enhancement allegation, not a crime. Even if we assume arguendo that there is a reasonable likelihood the jury would so construe the instructions, the claimed error would be harmless under any standard. The only intent required for section 12022.7 is the general intent to commit the underlying felony, to which CALCRIM No. 250 plainly applies. Therefore the jurys finding that defendant committed vehicular manslaughter with gross negligence necessarily included a determination that he had the requisite intent for the related section 12022.7 enhancement.

Conclusion

The judgment is affirmed.

_________________________

STEIN, J.

We concur:

_________________________

MARCHIANO, P. J.

_________________________

MARGULIES, J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by San Diego County Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

[1] Statutory references are to the Penal Code unless otherwise noted.

[2] The prosecutor argued: [W]hy do you think that . . . hes admitting that hes guilty of the homicide, of the vehicular homicide with simple negligence? When you get the verdict form, youll see there [are] no special allegations that apply to that charge. Defense counsel interposed an objection and the court admonished the jury as follows: I have given you the instructions, or most of the instructions. And again, Ill just indicate . . . that the consequences are something that the jury is not to consider during your deliberations. Twice thereafter the prosecutor made reference to the absence of any special allegations, stating: [He] wants you to go ahead and find him guilty of this one offense that doesnt have any of the special allegations with it, and [O]f course [he] wants you to find this one offense without the special allegations. Defendant did not object to either of the two subsequent references.

[3] Nor was counsel ineffective for failing to object, because the jury had already heard the courts admonition, and the standard instructions would inform the jury not to consider the penalty. Counsel could therefore reasonably conclude that further objection only risked unduly emphasizing the argument. (People v. Kelly (1992) 1 Cal.4th 495, 540.)

[4] The record offers no explanation for the complete silence at the sentencing hearing regarding the section 12022.7, subdivision (a) allegation found true with respect to Shirley Lennon. It is possible that, prior to the sentencing hearing, the court struck the enhancement allegation with respect to Shirley Lennon pursuant to subdivision (g) of section 12022.7 because she was also the manslaughter victim.

The Attorney General concedes that the section 12022.7, subdivision (c) enhancement in connection with count four, the manslaughter of Carlota De Vera, should have been stricken because pursuant to subdivision (g) the enhancement is inapplicable to the offense of vehicular manslaughter of the same victim. The court did not sentence defendant on the section 12022.7, subdivision (c) enhancement, or state it was stricken at the sentencing hearing or in the abstract of judgment. Again, it is possible that the court struck it prior to the sentencing hearing. In any event, defendant does not raise any issue on appeal with respect to the section 12022.7, subdivision (c) enhancement.

[5] In section I we identified the substantial evidence of gross negligence, and need not repeat it here.