Appeal from a judgment of the Superior Court of Orange County, Ronald L. Bauer, Judge. (Super. Ct. No. 09ZF0054)
The opinion of the court was delivered by: O'leary, J.
CERTIFIED FOR PUBLICATION
Elijah Leigh Ferguson appeals from his conviction for second-degree murder, driving under the influence causing great bodily injury, and driving with a blood alcohol level of .08 percent or higher causing great bodily injury. Ferguson contends: (1) the trial court erred in denying his request for an instruction on the partial defense of unconsciousness as a result of voluntary intoxication (CALCRIM No. 626), which could have reduced the offense to involuntary manslaughter; (2) evidence of data obtained from his car's event data recorder was improperly admitted; and (3) the trial court failed to properly consider his request for alternative sentencing as a combat veteran suffering from service-related post-traumatic stress disorder under Penal Code section 1170.9.*fn1 We find no error and affirm the judgment.
On February 22, 2008, Michael and Grace Sein were driving home around 11 p.m. They were stopped at a red light at the intersection of MacArthur and Jamboree in Newport Beach, when they were rear-ended by a car driven by Ferguson, a Marine stationed at Camp Pendelton. Michael Sein was killed; Grace Sein was severely injured. Ferguson suffered a broken ankle and some internal injuries. A witness to the accident testified that immediately after the collision, Ferguson looked "normal" but seemed disoriented and confused "like a person [who] was just in an accident."
The prosecution's accident reconstruction expert opined Ferguson was driving at about 75 miles per hour at the time of impact based on the injuries and the condition and placement of the vehicles. The event data recorder recovered from Ferguson's vehicle showed his car, a Dodge Caliber, was traveling at 75 miles per hour and accelerating when he struck the Seins's car, an Aston-Martin, although acceleration had stopped one-tenth of a second before impact.
Newport Beach Police Officer Troy Zeeman responded to the crash site, and someone at the scene indicated a possibly intoxicated driver was involved. Zeeman interviewed Ferguson at the hospital about two hours after the accident. Ferguson displayed objective signs of intoxication including reddish, watery eyes, slurred speech, and a moderate to strong odor of alcohol. However, Ferguson did not seem confused and was able to respond to questions. Ferguson did not remember the accident. Ferguson claimed he drank only two beers that night. Ferguson told Zeeman he was driving to his home in Santa Ana from Camp Pendleton and at Zeeman's request gave a detailed description of the route he would normally drive to get there. Ferguson appeared confused when Zeeman told him he had been driving in the wrong direction from his home.
A blood sample was taken from Ferguson about three hours after the accident. His blood alcohol level measured .12 percent. By extrapolation, Ferguson would have had between a .16 and .17 percent blood alcohol concentration at the time of the accident, or if he was a "tolerant drinker," it could have been as high as .21 percent.
Marine Corps Liberty Briefings
In 2008, Ferguson was a Marine Corps Lance Corporal stationed at Camp Pendleton. Several Marines testified about Marine Corps education and prevention programs concerning drinking and driving. In February 2008, Marine Corps Staff Sergeant Michael Booker and First Sergeant Eric Cook were responsible for giving weekly "liberty briefings" (safety briefings) to their units and platoons before individuals could leave base. Ferguson was in Booker's platoon and a member of Cook's company. Ferguson was present at the liberty briefing jointly given by Booker and Cook at 1:00 p.m. on February 22, 2008.
Booker testified he had given over 100 liberty briefings and every liberty briefing he gave began with a discussion of the dangers of drinking and driving. Booker testified it is an important Marine Corps rule that a Marine may not drive after consumption of any alcohol. He elaborated on that rule during the liberty briefings--he told the Marines if they were going to drink, they could not drive. He told them typically in a drunk driving accident, the drunk driver usually is not hurt; rather the sober person is the one who usually suffers "great bodily harm or . . . ends up killed in the accident."
Cook testified he too discussed the risks and consequences of drinking and driving during the weekly liberty briefings. Cook recalled he would look at the entire company while he talked, to ensure they were listening to him. Cook warned his Marines about DUI's, which were a huge concern because a Marine who suffered one would be "taken out of the fight." Cook told his Marines each was expected to have a "liberty buddy" to call upon while on leave. Marines were given "Arrive Alive" cards they could use for cab rides back to base if they had been drinking--the officer on duty would pay the cab fare, although the Marine would have to later repay half.
Booker and Cook testified there are signs and banners posted throughout the base warning Marines against drinking and driving. Cars destroyed in accidents are placed at certain places throughout the base with similar warning signs. There is a sign at the exit gate listing the number of individuals from the base who got DUI's that year.
Several of Ferguson's fellow Marines also testified about the liberty briefings. They testified they all attended liberty briefings at least once a week and the dangers of drinking and driving were always discussed at those briefings. They testified about Ferguson's presence at the February 22, 2008, liberty briefing. One Marine remembered Booker saying at that briefing, "'If you drink and drive, it could be my family out there that you kill. Don't do it. It's wrong.'"
Ferguson's Drinking and Driving on February 22, 2008
Ferguson was deployed to Iraq in 2007 and stationed at Camp Pendleton upon his return. Because Ferguson was married, he did not have a room in the barracks or live on base. Ferguson and his wife owned only one car. She usually drove him to and from work at the base, but sometimes Ferguson drove himself to work. Sometimes he stayed on base all night.
Ferguson had his car on the base on February 22. Corporal Craig Leedham testified he and Ferguson started drinking beer with Lance Corporals Michael Zingelewicz and John Chambers at about 4:00 p.m. on the day of the accident, but Ferguson might have begun drinking before then. Ferguson wanted to drive himself home, but Leedham stopped him because he was drunk.
Around 5:00 p.m., Ferguson walked into Lance Corporal Joshua Suprise's room. Ferguson's speech was slurred, and he was intoxicated. Suprise explained he was one of "the new guys" on base and not in the "same peer group" as Ferguson because Ferguson had had already been deployed, and Ferguson outranked Suprise. When Suprise asked Ferguson if he was all right, Ferguson replied, "'If you ask me that again, I'm going to punch you in the face[,]'" and he walked out.
Ferguson came back into Suprise's room again between 7:00 p.m. and 8:00 p.m. and was still drunk. Ferguson "passed out" on the bed and Suprise let him sleep until the movie Suprise and another Marine were watching ended. Concerned that Ferguson was drunk and might try to drive himself home, Suprise alerted Corporal Luke Hughes, Ferguson's good friend, and asked him to take Ferguson's car keys. Suprise also told Sergeant Brian Henexson the he was concerned Ferguson would try to drive home when he awoke.
Hughes and Henexson found Ferguson sleeping with his cell phone in his hands. Hughes took Ferguson's car keys from his pocket, woke him up, and took him outside. Ferguson's speech was slurred, and he could not walk straight. Ferguson repeatedly said he wanted to go home, insisted he was fine to drive, and asked for his car keys, but Hughes told him "it wasn't going to happen."
Although Ferguson was trying to sober up by drinking water, Hughes had no doubt Ferguson was unsafe to drive. He locked Ferguson's car keys in a cabinet. Ferguson got a telephone call from his wife, and while they were talking, Hughes went and found Ferguson an empty room in the barracks where he could sleep. When the call ended, Hughes told Ferguson he should sleep on base; Ferguson did not acknowledge Hughes and showed "no emotion" in response. Ferguson then got a second telephone call from his wife, and it was apparent they were fighting. Ferguson was getting upset and it was apparent he wanted to go home because of the fight with his wife. One Marine testified Ferguson said his wife would not let Ferguson come home and said she was going to divorce him.
Hughes then suggested to Ferguson that Hughes and two other Marines could borrow another vehicle, take Ferguson (and his car) home, and return to base in the other car. Ferguson expressed no opinion about that plan. But when Hughes talked to Ferguson's wife, she said she did not want Ferguson to come home because he had been drinking. Accordingly, Hughes again told Ferguson he should stay on base. Ferguson seemingly agreed and fell asleep. Hughes left the base, leaving Ferguson's car keys with Henexson, who was the most senior-ranked Marine present. In the meantime, Suprise returned to his own room to watch another movie.
Throughout the evening, Ferguson repeatedly came to Henexson asking for his car keys so he could drive home; Henexson refused. Ferguson then asked Henexson for his car keys just so he could get something out of his car; Henexson escorted him to the car and unlocked it, keeping the keys. Ferguson shuffled some papers around, but took nothing from the car. Ferguson did not appear to be as drunk as he had been earlier and insisted he had sobered up by sleeping and drinking water. Nonetheless, Henexson still felt Ferguson was too intoxicated to drive and would not give him the keys. They returned to the barracks. Henexson believed Ferguson was going back to Suprise's room to sleep because he told Henexson as he departed he wanted his car keys back first thing in the morning.
Between 10:00 p.m. and 10:30 p.m., Ferguson returned to Suprise's room. Ferguson still appeared intoxicated. Ferguson told Suprise he wanted Suprise to get his car keys from Henexson and drive him home. Ferguson told Suprise he could spend the night at Ferguson's house, and Ferguson would drive him back to base in the morning. Suprise replied he preferred to stay on base and suggested Ferguson should stay on base and sleep it off. Ferguson became angry and told Suprise he had to listen to him because Ferguson outranked him. Accordingly, Suprise retrieved Ferguson's car keys from Henexson, after assuring Henexson that he, not Ferguson, was going to drive.
Suprise returned to his room to get Ferguson. Ferguson said he did not want anyone to drive with him and demanded his keys. He told Suprise he had sobered up by drinking water, eating, and sleeping and felt fine to drive. Ferguson got angry, started yelling at Surprise, and raised his fists. Ferguson again told Suprise he must do as Ferguson said because Ferguson outranked him. Suprise felt intimidated ...