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People v. Millard

June 22, 2009

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
THEODORE E. MILLARD, DEFENDANT AND APPELLANT.
THE PEOPLE, PLAINTIFF AND APPELLANT,
v.
THEODORE E. MILLARD, DEFENDANT AND APPELLANT.



APPEALS from a judgment and order of the Superior Court of Orange, John A. Torribio, Judge. Judgment affirmed. Order affirmed in part; reversed in part and remanded for further proceedings. (Super. Ct. No. 04CF0781).

The opinion of the court was delivered by: McDONALD, J.

CERTIFIED FOR PARTIAL PUBLICATION*fn1

Theodore E. Millard appeals a judgment following his jury conviction of driving under the influence while committing an act forbidden by law and causing bodily injury to another person (Veh. Code, § 23153, subd. (a)). He also appeals a postjudgment order awarding $386,164 in restitution to the victim (Pen. Code, § 1202.4). On appeal, he contends his conviction must be reversed because: (1) the trial court erred in instructing on causation of the victim's injuries; (2) he was denied his constitutional rights to a fair trial and to present a defense when the trial court (a) excluded evidence he was not under the influence of alcohol at the time of the incident, and (b) did not instruct on the Vehicle Code section 23610, subdivision (a)(1), presumption; (3) the trial court erred by denying his motion for new trial; and (4) he was denied his right to due process of law because certain material exculpatory evidence was destroyed or lost. He contends the restitution order must be reversed because: (1) the trial court erred by awarding the victim unreasonable attorney fees; (2) the trial court erred by awarding the victim $750,000 in future lost wages; and (3) his constitutional right to findings by a jury beyond a reasonable doubt was violated by the court's findings by a preponderance of the evidence at the restitution hearing.

The People appeal the trial court's restitution order, contending the trial court: (1) erred by reducing the amount of restitution by 25 percent because of the victim's comparative negligence; (2) abused its discretion by reducing the amount of restitution because it disagreed with the law; (3) made findings regarding the victim's negligence without sufficient supporting evidence; (4) erred by valuing the victim's medical expenses based on the amount paid by the victim's insurance company rather than the amount billed by the medical providers; and (5) applying two different ratios in apportioning the victim's settlement proceeds between economic and non-economic losses.

In the published portion of this opinion, we conclude a trial court may apply the doctrine of comparative negligence in awarding victim restitution against a criminally negligent defendant when the court finds the victim's contributory negligence was a substantial factor in causing his or her injuries.

FACTUAL AND PROCEDURAL BACKGROUND

At about 10:11 p.m. on December 5, 2003, Billy Frank Payne was driving his motorcycle northbound on Tustin in Orange County. He had regularly driven his motorcycle for two years and it was in excellent condition and well-maintained. Its headlight, taillights, and turn indicators were all working properly. He was wearing a helmet with a clear face shield. He had never owned a helmet with a tinted face shield, because it would impair his vision at night. He had not been drinking or using drugs. His motorcycle's speedometer was illuminated. He monitored his speed as he drove. He was going 40 miles per hour.

Payne maintained that speed as he passed through the intersection of Tustin and Fairhaven on a green light. He was in the number one lane, the lane closest to the center of the multi-lane street. There were no vehicles in front of him going northbound. He saw two vehicles traveling southbound (in the opposite direction) in front of him. The first vehicle passed him without incident. However, the second vehicle suddenly veered directly toward him in the northbound number one lane. That second vehicle was a Ford Explorer driven by Millard, traveling at about 40 miles per hour without its turn indicator flashing. Payne had only about one second to react. He engaged his brakes, turned his wheel to the right, and then was struck by Millard's vehicle, which was traveling directly south in the northbound number one lane and did not stop at any time prior to the impact. Payne first felt the impact below his left knee and his femur shattered. His body struck the center of the hood of Millard's vehicle. Payne blacked out. When he regained consciousness, he was lying on the street and had difficulty breathing. He could not use his left hand when he tried to lift his face shield. A person standing over him told him help was on the way. He was later taken to a hospital by paramedics.

Marco Mondragon, an employee of a gas station located on the corner of Tustin and Fairhaven, heard screeching tires and looked to see a white Explorer stopped, facing directly southbound in the northbound number one lane. A motorcycle, totally damaged, was lying on the street directly in front of the Explorer. The hood and front fender of the Explorer were damaged. Mondragon saw a person lying on the ground and told his co-worker to call 911. Mondragon then went back outside. The driver of the Explorer (Millard) never got out of his vehicle. Millard backed up his vehicle, drove it to the gas station, and stopped at pump number one. Millard went into the station's store and asked for the restroom key so he could wash his face. Returning from the restroom, he asked for hot coffee. Because the store did not have any hot coffee, Millard bought a bottle of cold coffee and went back outside to his vehicle. Millard did not go to the area where the motorcyclist (Payne) was lying on the street.

City of Orange Police Officer John Mancini was the first officer to arrive at the scene. He saw a motorcyclist lying in the street with about 20 people in the area. Although the bystanders had not seen the accident, they pointed out a white Ford Explorer parked at the gas station. Millard and his wife, Sondra, were standing outside the Explorer. The Explorer had damage to its front bumper, grill, and the center of its hood. Speaking with Millard, Mancini noticed that he smelled of alcohol, had slow speech, and an unsteady gait. Millard's eyes were bloodshot and watery. Millard admitted he had consumed alcohol. Millard stated he was making a left turn into the gas station and was traveling about 10 miles per hour at the time of the collision. Millard told Mancini that he had not seen the motorcycle. Mancini called Officer Martin Suarez, who arrived a few minutes later.

As Suarez spoke with Millard, he noticed his eyes were watery and his posture was sagging, indications he was possibly under the influence of alcohol. Suarez administered a horizontal gaze nystagmus test, which suggested Millard may have had alcohol in his body. Millard told Suarez he had consumed three to four glasses of wine, with about two to three inches of wine in each glass, at the home of some friends. Suarez concluded Millard was impaired for purposes of driving and placed him under arrest for driving under the influence of alcohol. Suarez advised Millard of his obligation to provide a sample of blood, breath, or urine for chemical analysis. Millard agreed to provide a blood sample. At 11:42 p.m., Millard's blood sample was drawn. Two subsequent chemical analyses of that sample showed his blood alcohol content was 0.110 and 0.112 percent.

An information charged Millard with one count of driving under the influence while committing an act forbidden by law and causing bodily injury to another person (Veh. Code, § 23153, subd. (a)) and one count of driving with a blood alcohol content of 0.08 percent or greater while committing an act forbidden by law and causing bodily injury to another person (Veh. Code, § 23153, subd. (b)). Each count alleged that in commission of the offense Millard unlawfully failed to yield to another vehicle with the right of way as he turned left (Veh. Code, § 21801). The information also alleged that in committing each offense Millard personally inflicted great bodily injury on Payne (Pen. Code, § 12022.7, subd. (a)).

During Millard's jury trial, Payne, Mondragon, Mancini and Suarez testified as described above. The prosecution also presented the testimonies of traffic investigators and reconstruction experts who concluded Millard was at fault in the collision. Mancini concluded the point of impact was in the northbound number one lane of Tustin, 25 feet west of the east curb line of Tustin and 163 feet north of the north curb line of Fairhaven. There were no vehicle defects, weather conditions, or lighting conditions that contributed to the collision. He was unable to determine the motorcycle's speed at the time of the accident. Mancini testified that a driver of a vehicle traveling southbound on Tustin was required to yield to an oncoming motorcycle traveling northbound before turning left across the northbound lanes. The motorcycle had the right of way. Furthermore, the driver of the Explorer must anticipate that oncoming vehicles may change lanes and be speeding.

Accident reconstructionist Ernest Phillips reviewed materials and conducted his own investigation of the accident scene. He concluded the motorcycle was sliding on its left side immediately before impact. The Explorer was traveling southbound in the northbound number one lane. The impact occurred between the number one and number two lanes. Payne's testimony that he tried to make a hard right turn to avoid the collision was consistent with the fact that his motorcycle slid onto its left side because of the dynamic of counter-steering. Assuming the motorcycle was traveling 40 miles per hour, it would have traveled about 60 feet per second. Therefore, at a distance of 900 feet the motorcycle would have been visible for at least 15 seconds. Assuming the motorcycle was traveling 60 miles per hour, it would have traveled about 90 feet per second and been visible for 10 seconds. The impact occurred 25 feet north of the driveway into the gas station, meaning Millard entered the northbound lane more than 25 feet north of the driveway into which he stated he was turning. A typical turn into the gas station would be made at its driveway entrance. The evidence showed it was a head-on collision and Millard was not traveling east in a left turn toward the gas station. At the time of the collision, the motorcycle was traveling about 40 miles per hour and the Explorer was traveling about five to 10 miles per hour. In Phillips's opinion, the Explorer clearly violated the motorcycle's right of way even if Payne was wearing a dark face shield and traveling at 60 miles per hour, because the Explorer could not enter the motorcycle's lane until it was safe to do so.

Officer Kenneth Adams testified that on January 7, 2004, he inspected the motorcycle at the tow yard. Its headlight was operable. The motorcycle was in third gear, which is typically used to travel 35 to 45 miles per hour. Officer Brent Taylor examined the headlight and determined that its low beam was illuminated at the time of impact.

Forensic alcohol expert Felicia Gardner concluded that a hypothetical person of Millard's weight, who ate and drank at the times Millard stated and whose blood alcohol content was 0.11 percent at 11:47 p.m., would have had a blood alcohol level of about 0.13 percent at the time of collision, assuming all of the alcohol he drank was fully absorbed before that time. However, if he had a drink within one-half hour before the collision and that drink had not yet been absorbed into his blood system, his blood alcohol content would have been 0.11 percent at the time of the collision because the maximum that drink could have contributed was an additional 0.017 percent. A person who consumed about six and one-half to seven drinks would have about 26 to 30 ounces of wine in his or her system, but would have also burned off about 12 ounces of wine. Considering a hypothetical person with Millard's objective symptoms, his driving, his performance on the field tests, and his blood alcohol content, Gardner concluded that person would be under the influence of alcohol for purposes of driving.

Payne suffered multiple injuries, including a shattered femur, fractured left forearm, fractured right wrist, fractured sternum, torn ligaments, dislocated wrist bone, concussion, lacerations, and bruises. He was hospitalized for one month and had multiple surgeries to treat his injuries.

In Millard's defense, Millard, Sondra, and their friend, Denita Gilman, testified that he, Sondra, and their granddaughter went to the Gilmans' home for dinner on December 5, 2003. They arrived between 6:00 p.m. and 6:30 p.m. They brought wine and the Gilmans served their own wine. The group drank wine and ate hors d'oeuvres until dinner, which began about 8:00 p.m. Dinner consisted of steak, potatoes, salad, garlic bread, and chocolate cake. They also drank wine during dinner. Millard was the only person drinking from the bottle of red wine that he brought. When the Millards left at about 10:00 p.m., there was about one or two inches of wine left in that bottle.

Millard testified that his first glass of wine contained about six and one-half ounces, which he drank over a period of one to two hours while socializing and eating. He began drinking a second glass of wine with about the same amount at about 7:35 p.m. or 7:40 p.m. and finished it between 8:30 p.m. and 8:45 p.m. He began drinking a third glass of wine with about five and one-half ounces during dinner and finished its last four and one-half ounces a couple of minutes before leaving the Gilmans' house. Millard testified that he did not feel under the influence of alcohol at the time he left.*fn2

After leaving the Gilmans' house, the Millards dropped off their granddaughter a few blocks away and then decided to buy gas on their way home. Millard, driving south on Tustin, pulled into the left turn lane and stopped, waiting for traffic to pass. He then began his turn and entered the northbound number one lane going about five to 10 miles per hour, but immediately stopped when he heard Sondra scream, "Honey!" Millard saw a motorcycle approaching at a speed of about 60 miles per hour. Millard testified that he tried to make eye contact with the motorcycle's driver, but could not do so because the driver was wearing a dark face shield. Millard saw the motorcycle for about two and one-half to three seconds before it crashed into the front of his vehicle. The motorcycle did not appear to slow down or take any evasive action. After the collision, Sondra called 911 and people immediately came running from the gas station to the scene. Millard drove his vehicle to the gas station and used its restroom.

Millard testified that his difficulty in performing the field sobriety tests was because of his age and knee and back problems. He denied telling Officer Suarez that he never saw the motorcycle. He testified that he told Suarez he saw the motorcycle approaching at a high rate of speed after he started his turn and that the motorcycle's driver was wearing a dark face shield.

William Otto, an accident reconstruction expert, testified Payne's body hit Millard's Explorer at a speed of about 38 miles per hour. Based on scuff marks and abrasions on the motorcycle's tires, he concluded the brakes were engaged before the accident and the motorcycle leaned to the left 20 to 30 degrees in a locked wheel skid that lasted about one and one-half seconds. He testified that braking would have left skid marks on the pavement. However, neither the police reports nor witness accounts that he reviewed disclosed any skid marks at the scene. He estimated the motorcycle was traveling 60 miles per hour prior to braking. However, if the motorcycle was traveling 40 miles per hour and did not brake prior to the collision, Payne's body would have hit the Explorer at his estimate of about 38 miles per hour. Traveling at 60 miles per hour, it would have taken the motorcycle 3.4 seconds to travel 300 feet. If the Explorer was traveling at about 10 miles per hour, it would have taken about three seconds to travel the 45-foot distance from the left turn lane to the gas station's driveway. The motorcycle's headlight would have been visible for about 10 seconds prior the collision, even were the motorcycle traveling at 60 miles per hour.

Fire Captain Dale Eggleston testified he believed the face shield of Payne's helmet was clear because when he arrived at the scene he could see Payne's face and glasses.

Kenneth Obenski, a forensic engineer in accident reconstruction, testified that motorcycles are difficult for motorists to see. When he examined the accident scene on December 11, 2003, he did not see any skid marks. Also, none of the photographs he reviewed showed any skid marks. He acknowledged the police report specifically stated there were no skid marks. He testified that because a fuse for the motorcycle was blown, its taillight and speedometer were not illuminated. Obenski estimated the motorcycle was traveling 38 miles per hour at the time of the collision. Based on scrape marks and abrasions on the motorcycle's front tire, he concluded the motorcycle was traveling 59 miles per hour when it was 280 feet from impact and then braked and left skid marks. The posted speed limit was 40 miles per hour. He admitted his speed calculation was dependent on his assumption that the motorcycle had braked prior to the collision. If the motorcycle was traveling 40 miles per hour and did not brake before impact, its speed on impact would have been about 38 miles per hour. Although its headlight would have been visible for a long distance, it would have to have been within 150 to 200 feet for a driver to determine it was a motorcycle. At the time Millard began his turn, the motorcycle was at least 280 feet away and would not have been discernible as a motorcycle. Obenski testified it was reasonable for Millard to begin his turn because there was no hazard at that time.

Darrell Clardy, a forensic alcohol expert, testified he received a sample of Millard's blood drawn on December 5, 2003. Clardy's tests of the sample showed blood alcohol contents of 0.101 and 0.097 percent. Clardy also conducted a replication study at his laboratory during which Millard consumed the approximate amount of food and alcohol during a similar time frame as on December 5. Based on his study, Clardy concluded Millard's blood alcohol content at the time of the accident would have been between 0.04 and 0.047 percent. Those levels were lower than the tests of Millard's December 5 blood samples because he was continuing to absorb alcohol into his system after the accident.

The jury found Millard guilty of driving under the influence while committing an act forbidden by law and causing bodily injury to another person (Veh. Code, § 23153, subd. (a)) and found true the allegation that in committing that offense Millard personally inflicted great bodily injury on Payne (Pen. Code, § 12022.7, subd. (a)). The jury found Millard not guilty of driving with a blood alcohol content of 0.08 percent or greater while committing an act forbidden by law and causing bodily injury to another person (Veh. Code, § 23153, subd. (b)).

On July 25, 2005, the trial court denied Millard's motion for a new trial and granted him three years of informal probation on the condition that he serve 75 days in local custody and five and one-half months of electronic confinement.

On May 10 and June 26, 2006, restitution hearings were conducted. On June 30, the trial court issued its written ruling ordering Millard to pay Payne a total of $386,164 in victim restitution pursuant to Penal Code section 1202.4.*fn3

Millard timely filed a notice of appeal challenging the judgment and restitution order. The People timely filed a notice of appeal challenging the restitution order.*fn4

DISCUSSION

I. Instructions on Causation

Millard contends the trial court erred in instructing on causation of Payne's injuries. He asserts the court did not instruct, sua sponte or on his request, that his failure to yield could have been a cause of Payne's injuries only if those injuries were reasonably foreseeable.

A.

"[E]ven in the absence of a request, a trial court must instruct on general principles of law that are commonly or closely and openly connected to the facts before the court and that are necessary for the jury's understanding of the case. [Citations.]" (People v. Montoya (1994) 7 Cal.4th 1027, 1047.) The trial court's duty to instruct sua sponte includes the duty to instruct on all of the elements of a charged offense. (People v. Cummings (1993) 4 Cal.4th 1233, 1311.) A trial court does not have a duty to instruct sua sponte regarding terms used in an instruction that are commonly understood by those familiar with the English language. (People v. Ellis (1999) 69 Cal.App.4th 1334, 1338.) For instructions outside a court's duty to instruct sua sponte on general principles of law, it is the defendant's obligation to request any clarifying or amplifying instructions. (People v. Estrada (1995) 11 Cal.4th 568, 574; People v. Kimble (1988) 44 Cal.3d 480, 503.) A defendant's "failure to request such a clarifying [or amplifying] instruction at trial, however, waives his claim on appeal. [Citations.]" (People v. Hart (1999) 20 Cal.4th 546, 622.) Alternatively stated, "[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." (People v. Lang (1989) 49 Cal.3d 991, 1024.)

"In a criminal trial, the court must give an instruction requested by a party if the instruction correctly states the law and relates to a material question upon which there is evidence substantial enough to merit consideration. [Citations.]" (People v. Barajas (2004) 120 Cal.App.4th 787, 791.) However, a court may "properly refuse an instruction offered by the defendant if it incorrectly states the law, is argumentative, duplicative, or potentially confusing [citation], or if it is not supported by substantial evidence." (People v. Moon (2005) 37 Cal.4th 1, 30.) A court may refuse as argumentative a requested instruction that highlights specific evidence because it invites the jury to draw inferences favorable to one of the parties from particular evidence. (People v. San Nicolas (2004) 34 Cal.4th 614, 673; People v. Earp (1999) 20 Cal.4th 826, 886.) The correctness of jury instructions is determined by considering all instructions given and not by considering only part of an instruction or a particular instruction. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1248.)

B.

On the charged Vehicle Code section 23153, subdivision (a), offense, the trial court instructed:

"Defendant is accused in count 1 of having violated section 23153, subdivision (a) of the Vehicle Code, a crime.

"Every person who, while under the influence of an alcoholic beverage, drives a vehicle and concurrently does any act forbidden by law or neglects any duty imposed by law in the driving of the vehicle, which act or neglect causes bodily injury to any person other than himself, is guilty of a violation of Vehicle Code section 23153, subdivision (a), a crime.

"A person is under the influence of any alcoholic beverage when as a result of drinking an alcoholic beverage his physical or mental abilities are impaired so that he no longer has the ability to drive a vehicle with the caution characteristic[] of a sober person of ordinary prudence, under the same or similar circumstances.

"If it is established that a person is driving a vehicle under the influence of an alcoholic beverage, it is no defense that there was some other cause which also [tended] to impair his ability to drive with the required caution.

"In order to prove this crime, each of the following elements must be proved:

"First, a person drove a vehicle while under the influence of any alcoholic beverage;

"Two, that person concurrently did an act which violated the law or failed to perform a duty required by law, namely, failed to yield the right-of-way to oncoming traffic in making a left turn.

"Third, the violation of law or failure to perform a duty was a cause of bodily injury to a person other than the driver of the vehicle." (Italics added.)

The court further instructed:

"The driver of a vehicle intending to turn left into public or private property shall yield the right-of-way to all vehicles approaching from the opposite direction which are close enough to constitute a hazard at any time during the turning movement, and shall continue to yield the right-of-way to the approaching vehicles until the left turn can be made with reasonable care.

"A driver having yielded as prescribed above and having given a signal when and as required by this Code, may turn left and the drivers of the vehicle[s] approaching from the opposite direction shall yield the right-of-way to the turning vehicle.

"The statute just read to you uses the word 'hazard.' A 'hazard' [exists] if any approaching vehicle is so near or is approaching so fast that a reasonably careful person would realize that there is danger of a collision.

"A driver who is attempting to make a left turn must make sure that no oncoming vehicles are close enough to be a hazard before he or she proceeds across each lane.

"The failure to use reasonable care taking an action or failing to take an action. A person is not using reasonable care if he or she does something a reasonably careful person would not do in the same situation or fails to do something that a reasonably careful person would do in the same situation.

"No person shall turn a vehicle from a direct course or move right or [left] upon a roadway until such movement can be made with reasonable safety and then only after giving the appropriate signal." (Italics added.)

The court then instructed with a modified version of CALJIC No. 3.40:

"To constitute the crime of felony driving under the influence of alcohol . . . , there must be in addition to the driving under the influence of alcohol . . . an unlawful act or omission which was a cause of the injuries suffered by Mr. Payne.

"Criminal law has its own particular way of defining cause. A cause of the great bodily injury is an act or omission that sets in motion a chain of events that produces as a direct, natural and probable consequence of the act or omission the injuries in question and that without which the injuries would not occur." (Italics added.)

The court then instructed with a modified version of CALJIC No. 3.41:

"There may be more than one cause of the injuries. When the conduct of two or more persons contributes concurrently as a cause of the injuries, the conduct of each is a cause of the injuries if that conduct was also a substantial factor contributing to the result. A cause is concurrent if it was operative at the moment of the injuries from the crime and acted with another cause to produce the injuries. "If you find that the defendant's conduct was a cause of the injuries to another person, then it is no defense that the conduct of some other person, even the injured person, contributed to the injuries."

The trial court declined to give a number of special instructions requested by Millard.

C.

Millard argues that "[h]aving advised the jury that to be 'a cause' of the injury, it need only have been the 'natural and probable' consequence of [his] violation of the law (i.e., failing to yield the right of way), the court both failed in its sua sponte duty, and refused properly phrased instructions requested by the defense, informing the jury that to be a 'natural and probable' consequence, it must have been reasonably foreseeable to a reasonable person in [his] position." However, based on our review of all of the trial court's instructions, we conclude the court correctly instructed on general principles of law commonly or closely and openly connected to the facts before the court and necessary for the jury's understanding of the case. (People v. Montoya, supra, 7 Cal.4th at p. 1047; People v. Musselwhite, supra, 17 Cal.4th at p. 1248.) The court's instructions adequately instructed the jury on the causation requirement, including reasonable foreseeability, even though those instructions did not use that terminology. Furthermore, we conclude the court properly declined Millard's requested special instructions because they incorrectly stated the law; were argumentative, duplicative, or potentially confusing; or were not supported by substantial evidence. (People v. Moon, supra, 37 Cal.4th at p. 30.)

The court's instructions informed the jury of the element of causation, i.e., that Millard's unlawful act or neglect (i.e., failure to yield) must have been a cause of Payne's bodily injuries. Its instructions defined a failure to yield as including a left turn when vehicles approaching from the opposite direction are close enough to constitute a hazard during the turn. Its instructions stated a hazard exists "if any approaching vehicle is so near or is approaching so fast that a reasonably careful person would realize there is a danger of collision." (Italics added.) That language in effect instructed the jury that there is a hazard if a reasonable person in Millard's position would reasonably foresee there is a danger of collision (and, implicitly, a danger of causing bodily injury to another person).

A reasonably careful person would not realize there is a danger of collision if the collision (and danger of causing bodily injury) were not reasonably foreseeable. The court further instructed: "A person is not using reasonable care if he or she does something a reasonably careful person would not do in the same situation or fails to do something that a reasonably careful person would do in the same situation."

Furthermore, in instructing on causation, the trial court defined a "cause" of great bodily injury as "an act or omission that sets in motion a chain of events that produces as a direct, natural and probable consequence of the act or omission the injuries in question and that without which the injuries would not occur." (Italics added.) Were there no reasonably foreseeable hazard or danger of collision from Millard's act or omission, Payne's injuries could not have been a direct, natural and probable consequence of Millard's act or omission. Considering the court's instructions as a whole, the jury was adequately instructed on the element of causation, including the reasonable foreseeability of Payne's injuries resulting from a failure to yield by Millard. The court's instructions did not allow the jury to convict Millard if his failure to yield was only a "but for" cause of Payne's injuries. Had the jury believed Millard's evidence that Payne's possible conduct (e.g., excessive speed, inattentiveness, and wearing a dark face shield) was a superseding, intervening act, the jury would not have found Payne's injuries were a direct, natural, and probable consequence of Millard's failure to yield because there would not have been a hazard from the viewpoint of a reasonably careful person (i.e., no reasonable foreseeability).

Millard does not cite any case or other authority showing the element of causation must be defined using the specific terminology of "reasonable foreseeability." Although he notes CALCRIM No. 240 was adopted in 2005 and replaced CALJIC Nos. 3.40 and 3.41 on causation, CALCRIM No. 240 does not use the terminology of "reasonable foreseeability."*fn5 Rather, that instruction restates the requirement of an injury as the "direct, natural, and probable consequence of the act" and defines a direct, natural, and probable consequence as one that "a reasonable person would know is likely to happen if nothing unusual intervenes." (CALCRIM No. 240.) In our view, there is no significant difference between CALCRIM No. 240 and the trial court's instructions on causation given in this case on the issue of reasonable foreseeability.

None of the cases cited by Millard are apposite and, in any event, do not persuade us that the trial court erred in instructing on the element of causation. (See, e.g., People v. Culuko (2000) 78 Cal.App.4th 307, 328 [trial court did not err in instructing on aiding and abetting by explaining that the crime was a natural and probable consequence of the defendant's aiding and abetting if a reasonable person in the defendant's position would have known the crime was a reasonably foreseeable consequence of the act aided and abetted]; People v. Roberts (1992) 2 Cal.4th 271, 321-322 [trial court erred by expressly instructing the jury in murder case to disregard the foreseeability of secondary attack on victim]; People v. Cervantes (2001) 26 Cal.4th 860, 871; People v. Gardner (1995) 37 Cal.App.4th 473, 482-483; People v. Hebert (1964) 228 Cal.App.2d 514, 519-521.)

Because Millard does not provide any substantive analysis of his nine requested special instructions on causation the trial court declined to give, we conclude he has not carried his burden on appeal to show the court erred by refusing to give all or any of those requested instructions. In any event, based on our review of those instructions, we conclude the trial court properly refused to give those requested instructions because they incorrectly stated the law; were argumentative, duplicative, or potentially confusing; and/or were not supported by substantial evidence. (People v. Moon, supra, 37 Cal.4th at p. 30; People v. San Nicolas, supra, 34 Cal.4th at p. 673; People v. Earp, supra, 20 Cal.4th at p. 886.) Furthermore, assuming arguendo the trial court erred as Millard ...


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