(Sonoma County Super. Ct. No. SCR-512403) Trial Judge: Hon. Rene Auguste Chouteau.
The opinion of the court was delivered by: Richman, J.
CERTIFIED FOR PUBLICATION
We see, yet again, the tragic consequences that can result from the mixture of boating and alcohol-here, the death of Mark Spier.
Defendant William Dawson was charged with five crimes, two of which were felonies: vessel manslaughter while intoxicated and unlawful operation of a vessel while intoxicated resulting in bodily injury. The charges stemmed from the death of Spier who, himself very intoxicated, jumped off the back of a boat as defendant put the boat in reverse, struck the propeller and died instantly. Following a preliminary hearing, the magistrate declined to hold defendant on the felony charges, finding that he did not cause Spier's death: ―What caused the death of this individual was the jumping off while the boat was in reverse.‖ The superior court declined to reinstate the charges, concluding it was bound by the magistrate's factual finding that defendant did not cause Spier's death.
The People appeal, essentially arguing that the magistrate misapplied the law of causation. We agree and we reverse.
By complaint filed May 24, 2007, defendant was charged with five offenses:
(1) vessel manslaughter while intoxicated (Pen. Code, § 192.5, subd. (b), a felony); (2) unlawful operation of a vessel while intoxicated resulting in bodily injury (Harb. & Nav. Code, § 655, subd. (f), a felony); (3) unlawful operation of a vessel while under the influence of alcohol (Harb. & Nav. Code, § 655, subd. (b), a misdemeanor); (4) unlawful operation of a vessel with .08 percent or more blood alcohol content (Harb. & Nav. Code, § 655, subd. (c), a misdemeanor); and (5) unlawful use of a vessel in a reckless or negligent manner, placing life or limb of another at risk (Harb. & Nav. Code, § 655, subd. (a), a misdemeanor).*fn1 The complaint also alleged in aggravation that defendant had a prior conviction for driving under the influence of alcohol in violation of Vehicle Code section 23152, subdivision (b).
At a preliminary hearing on the felony charges, the prosecutor offered the testimony of three witnesses: Sonoma County Deputy Sheriff Daniel Peccorini, the officer who responded to the accident, and Jessica Spaletta and Melissa Daniels, two of the people on the boat at the time of the accident. They testified as follows:
Deputy Peccorini was assigned to the sheriff department's marine unit. At approximately 3:45 p.m. on May 6, 2007, he received a call to respond to the Warm Springs arm of Lake Sonoma. When he arrived, he saw many boats surrounding a boat, with people in the water attempting to remove a body from the propeller area of the boat. The body was that of Spier.
There were six people on the surrounded boat, subsequently identified as defendant, Spaletta, Daniels, Wendy Ray (Spier's girlfriend), Eric (Ray's son), and Tyler Martino. In response to Peccorini's question, defendant identified himself as the owner of the boat. Peccorini then asked who was operating the boat at the time of the accident. Nobody responded, so he asked a second time, looking particularly at defendant; defendant said, ―I don't know who was operating the boat.‖ Peccorini repeated his question a third time; again, nobody responded.*fn2 Peccorini told the group that until he determined who was driving the boat, he was going to treat them all as the operator. Spaletta then spoke up, stating that she was not going to ―go down‖ for something she did not do, and whoever was driving needed to ―fess up.‖ Defendant then acknowledged he was driving the boat at the time of the accident.
Peccorini testified he asked defendant how the accident occurred, and he ―told me that Mr. Spier had been on the back swim step of the boat preparing to ski. They were drifting towards the shore. He instructed Mr. Spier to get back in the boat because he needed to reposition the boat. At the time that he began reversing the boat Mr. Spier jumped into the lake.‖ Defendant told Peccorini that the rope and ski had been put in the water. As defendant was describing what happened, Peccorini detected an odor of alcohol coming from defendant, whose eyes were red and watery and whose speech was slurred.
Peccorini then asked Tyler Martino what happened, and ―He said that Mr. Spier was at the back swim step preparing to ski. The rope and the ski were in the water. They began telling Mr. Spier to get back in the boat, that they needed to reposition the boat. When the boat began reversing Mr. Spier went into the water.‖
Peccorini identified the wooden platform on the rear of the boat as a swim platform or ski step, which he indicated is an extension of the transom on the boat. On the ski step, there is a sticker that says, ―Danger. Keep away from rear boat while running to avoid personal injury.‖ Peccorini identified two dangers of having someone on the ski step while the motor is running: the risk that the exhaust fumes can overtake someone without their realizing it; and the risk of falling off the back of the boat and being struck by the propeller. There was also a warning sticker by the throttle that said, ―Danger. Avoid serious injury, shut off and/or do not start engine before allowing anyone on or about swim platform.‖ Peccorini said that when he is patrolling the lake, it is not uncommon to see people riding on the transom area of boats, and he issues tickets to boat operators for this ―[a]ll the time.‖
After returning to shore with defendant, Peccorini performed a variety of field sobriety tests, on which defendant performed poorly. Peccorini also tested defendant's blood alcohol content, which registered 0.14. In light of these evaluations, Peccorini concluded defendant was operating his boat under the influence of alcohol.
Peccorini also examined the boat and found numerous bottles of beer and hard liquor. He asked Spaletta and Daniels about their alcohol consumption, and both said hey had consumed one half of a beer, if that. Peccorini interviewed all of the witnesses except Wendy Ray, and none of them indicated that there was a lookout on the boat.
Jessica Spaletta testified that on the day in question she and Daniels boarded defendant's boat on Lake Sonoma around 1:00 p.m. She had met defendant earlier through a former roommate, and had hung out with him a few times; she did not consider him a good friend. When she and Daniels got on the boat, a number of people were already on board, including Spier, whom she had never met, and who, it was clear, was already ―beyond intoxicated.‖ Over the next few hours, Spier continued to drink ―quite a bit,‖ like one beer after another.
Many times throughout the afternoon the boat drifted toward the shore and had to be repositioned. During these maneuvers, Spier was reluctant to comply with the requests to sit down, repeatedly complaining he wanted to water ski. About ten or fifteen minutes before the accident, Spier got in the water to ski, stashing a beer or two in his life vest before entering. He was unable to get the ski on, however, and climbed back into the boat. Everyone was encouraging Spier to skip the waterskiing for the day because he was obviously too intoxicated. But Spier insisted, getting more and more agitated or angry that the waterskiing was not working out: ―He wouldn't listen to anybody; it was more like he wanted to do what he wanted to do.‖
Just before the accident, Martino, who had been piloting the boat all afternoon, got out of his seat. The seat was empty for ―a little bit,‖ but about a minute or less before the accident happened, defendant sat down in the driver's seat. Somewhere around this time, there was a bunch of ―hollering‖ as people were telling Spier to stay in the boat, sit down, and relax; instead he was ―[g]etting impatient and wanting to jump off the boat.‖ Defendant then started to back the boat up, very slowly and smoothly. Out of the blue, Spier suddenly said, ―Fuck it,‖ and jumped in. The accident happened very quickly: ―He jumped in and he was dead.‖
Asked by the prosecutor specifically about Spier's location on the boat leading up to the accident, Spaletta could not say where he was on the boat two minutes prior. She testified, however, that immediately before he was struck by the propeller, he was on the wooden platform, although she could not remember if he was sitting or standing. While he was on the wooden platform, there was ―some hollering,‖ and while she knew it was Spier hollering, she did not know exactly what the ―hollering‖ was about, other than people telling Spier to sit down and relax. She believed that while Spier was hollering and before he went into the water, there was a ski rope in the water, although she could not remember how long it had been there.
On cross-examination, defense counsel asked Spaletta about Spier's location when defendant began to reverse the boat: ―Do you remember if [Spier] was sitting up on this padded area with Wendy [Ray] when the boat started to back up?‖ Spaletta responded, ―Yes I believe so, that he was.‖ She also remembered hearing an announcement for everyone to stay put because the boat was going to be backed up.
Melissa Daniels testified that she and Spaletta got on defendant's boat in the afternoon, at which time there were already other people on the boat, none of whom she knew. It was apparent that Spier and his girlfriend had been drinking.
Martino was driving the boat the entire afternoon, and as the afternoon went on, Spier was paying less attention to directions and getting more difficult to deal with. At some point, Spier was getting ready to water ski, and people on the boat were telling him that he had to put on a life vest, which he eventually did, storing additional alcohol in the vest before entering the water. Spier was unable to get the ski on because he was, according to others' comments, too intoxicated, so he returned to the boat.
About 10 to 20 minutes after Spier's failed attempt at waterskiing, there was a discussion about having to move the boat away from the shore. During that time, Spier continued to insist on waterskiing, while others were trying to reason with him, to convince him it was not a good idea. They were trying to calm Spier down and get him to stay in the boat, but he was not cooperating, ignoring everybody's pleas and insisting that he was going to water ski. Daniels believed that during this period of time, Spier was sitting down, and at some point before the accident was seated on the padded area above the wooden platform. She testified, however, that immediately prior to the accident he was on the wooden ski step, estimating first that he was there for ―a couple of minutes,‖ and then for ―about 15 minutes‖ before entering the water. Daniels saw him enter the water and was surprised when he jumped in.
In describing the motion of the boat at the time of the accident, Daniels testified that it was idling and staying in one place at the time Spier entered the water. And when defendant backed the boat up, it was smooth and very slow. Asked to clarify whether the boat was idling or backing up when Spier was struck, Daniels testified that ―[i]t seemed like the waves were pushing the boat backwards slowly.‖ She did not know if the boat was in gear at that point. It was quiet and was moving slowly in the water when Spier jumped in.
Following the conclusion of the prosecution's evidence, the parties offered two stipulations. The first was that a 6:00 p.m. blood draw confirmed that defendant's blood alcohol content was 0.10. The second was that when Spier died, he had blood alcohol content of 0.22 and also had methamphetamine and Diazepam in his system.
The magistrate then invited argument, expressing particular interest on the question whether ―defendant's negligent conduct caused the death of another person‖ and the issue of proximate cause. The prosecutor argued that defendant was operating the boat with somebody on the ski step ―which started the events in sequence that eventually led to Mr. Spier's death.‖ The magistrate then posed the following hypothetical: ―[W]hat if [an intoxicated] person is sitting in the cockpit . . . and they slid when the boat is put into reverse, run to the back of the boat, jump off the transom and into the water and have the same result. How if at all is that different from someone who is standing on the transom when the negligence itself of having somebody on the transom has to [lead] to the death?‖ The prosecutor responded that ―[s]omeone running from the cockpit down the length of the boat and jumping overboard as the boat is reversing, and that person being struck by the propeller would arguably not ...