IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yolo)
May 9, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
JOSE LUIS MENDIOLA-PONCE, DEFENDANT AND APPELLANT.
(Super. Ct. No. 084714)
The opinion of the court was delivered by: Robie, Acting P. J.
P. v. Mendiola-Ponce
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Jose Luis Mendiola-Ponce challenges his conviction for gross vehicular manslaughter while intoxicated on instructional error grounds. Finding no merit in his arguments, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Between the hours of 9:00 p.m. and 10:00 p.m. on August 9, 2008, defendant and his brother-in-law, Martin Javier Ledesma Martinez (Ledesma), went to La Finca De Rivera to see a band perform. According to Ledesma, Fabian Peralta Perez approached defendant and picked a fight several times while the two were at La Finca De Rivera. Perez appeared to be drunk. At around midnight, defendant and Ledesma left La Finca De Rivera to go home. Perez followed the two out of the bar and got into the front passenger seat of defendant's Jeep Cherokee, defendant got into the driver's seat, and Ledesma got into the driver's side rear passenger seat. Although defendant and Ledesma had never met Perez before that night, they decided to give Perez a ride home because they were worried he would get into other fights at the bar.
Once on the road, Perez wanted to go to another bar. Defendant refused because both he and Ledesma had to work in the morning. Ledesma testified that Perez then started to fight with defendant, who did not pay any attention to him. Perez then reached over and grabbed the steering wheel. The Jeep veered west and crashed into a tree, then rolled onto its roof.
Francisco Martinez drove by the accident, called 911, and got out of his car to help. Ledesma told Martinez that defendant fell asleep while driving. Both defendant and Ledesma were airlifted to UC Davis Medical Center, where defendant's blood was drawn. His blood-alcohol level later came back as 0.94 percent. Perez was pronounced dead at the scene and his blood-alcohol level was later determined to be 0.23 percent.
Defendant was charged in count 1 with murder, in count 2 with gross vehicular manslaughter while intoxicated, in count 3 with driving under the influence of alcohol causing injury, in count 4 with driving at 0.08 percent blood-alcohol content or above causing injury, and in count 5 with driving without a valid driver's license. It was further alleged as to counts 2, 3, and 4 that defendant had been convicted of driving under the influence of alcohol on two prior occasions, and as to counts 3 and 4 that defendant personally inflicted great bodily injury and inflicted great bodily injury or death on multiple victims.
At trial, the court instructed the jury as to gross vehicular manslaughter while intoxicated and lesser included offenses using CALCRIM Nos. 510, 590, 591, 592, and 593. The court gave oral instructions along with providing copies of the written instructions to the jury for deliberations.
In discussing the instructions with the court, defense counsel requested that the court read instructions rather than paraphrasing. The court indicated it would paraphrase when it encountered awkward written language and further welcomed counsel to read the text during his closing argument, whether it was the same or different than that given by the court. The court concluded any misreading would be curable by the ability of counsel to comment on the instructions.
During its oral recitation of CALCRIM No. 590, which deals with gross vehicular manslaughter, the court instructed the jurors as to vehicular manslaughter and unexpected emergency situations and then, rather than reading the instruction as written, referred the jury to a previously given murder instruction about natural and probable consequences and acts constituting a substantial factor in the victim's death. The court explained, "I'm going to tell you now that this is one of those areas where the same statement regarding how an act may cause death is direct, natural and probable consequence as I read you in the murder instruction, and it applies to this one, as well. The same thing about there being possibly more than one cause of death."
With all instructions regarding lesser included offenses, the court referred the jury back to the instructions dealing with sudden and unexpected emergencies and natural and probable consequences of defendant's acts when it came to the causation portion of each instruction. During the court's instruction following the lesser included offenses the court elaborated on its previous instructions:
"This next instruction talks about other possible contributing factors. It starts off with the same description of how an act causes death if it is [a] direct and natural consequence of the act. It goes on with the rest of that instruction you heard before, but I'm going to now add that the failure of Fabian Perez or another person to use reasonable care may have contributed to the death, but if the defendant's act was a substantial factor causing the death, then he is legally responsible for the death even though Fabian Perez or another person may have failed to use reasonable care. [¶] If you have a reasonable doubt whether his act caused the death, you must find not guilty."
Defense counsel never interjected during the court's reading of the instructions but did comment during his closing argument by saying, "I was almost falling asleep during the jury instructions. They are incredibly complicated. . . . That's just the way it is." Defense counsel later said, "[a]nd there are some instructions about types of things that can cause accidents and whether they are at fault. [¶] Nobody foresees someone grabbing at the wheel."
The jury found defendant not guilty of murder but guilty of gross vehicular manslaughter while intoxicated, driving under the influence of alcohol, driving at 0.08 percent blood-alcohol content or above causing injury, and driving without a valid driver's license. The jury also found all the enhancement allegations true. The court sentenced defendant to 15 years to life for gross vehicular manslaughter while intoxicated and dismissed counts 3 and 4 as being necessarily included within the manslaughter conviction. The court further sentenced defendant to a concurrent term of 90 days for driving without a valid driver's license and a total of 360 days for probation violations.
Defendant challenges his manslaughter conviction on instructional error grounds. In particular, he asserts that the jury instructions were confusing and unclear, the court failed in its sua sponte duty to instruct the jury on independent intervening cause, and the court erroneously instructed the jury that the victim's failure to use reasonable care might have contributed to his death but did not absolve defendant of legal responsibility if defendant's act was a substantial factor causing death.
On appeal, we review claims of instructional error de novo. (People v. Alvarez (1996) 14 Cal.4th 155, 217 ["[A]n appellate court reviews a trial court's instruction independently"].) In determining whether the trial court committed an instructional error, we must examine the evidence in the light most favorable to the appealing party. (People v. Young (1963) 214 Cal.App.2d 641, 644-645.)
The Court's Instructions Were Neither Confusing Nor Unclear
First, defendant argues that "[t]he trial judge's confusing and unclear charges denied clear and simple instructions."
In determining whether error was committed by giving or not giving an instruction, it is important to consider the instructions as a whole and to assume the jurors are intelligent persons capable of understanding and correlating all instructions given. (People v. Guerra (2006) 37 Cal.4th 1067, 1148.) Furthermore, there is a presumption that "'"'the correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.'"'" (People v. Estep (1996) 42 Cal.App.4th 733, 738-739.) Here, the trial court specifically instructed the jury that all instructions should be considered as a whole and in light of all others. (CALCRIM No. 200.)
Defendant asserts that "the trial court instructions were confusing and unclear when some of the written instructions were not included in the oral instructions and some of the oral instructions were paraphrased or referred back to other instructions." Defendant contends that the judge confused the jurors when he referred them to an oral causation instruction given during the murder charges,*fn1 instead of repeating the causation instruction for the manslaughter charges.*fn2 The referenced oral instruction contains the exact language contained in the manslaughter written instructions pertaining to causation. Further, the jury was given a written copy of the instructions to use during deliberations. "'It is generally presumed that the jury was guided by the written instructions.'" (People v. Rodriguez (2000) 77 Cal.App.4th 1101, 1112-1113.) "Consequently, as long as the court provides accurate written instructions to the jury to use during deliberations, no prejudicial error occurs from deviations in the oral instructions." (Id. at p. 1113.)
Defendant, however, contends that accurate written instructions were not given to the jury to use during deliberations. More specifically, he argues that the instructions were confusing because "[j]urors should be instructed in clear and simple language rooted in the doctrine of foreseeability, not unclear and confusing statements on the doctrine of proximate cause." Defendant cites People v. Hebert (1964) 228 Cal.App.2d 514 to support his contention. In Hebert, the court held that the trial court made the issue of proximate cause confusing by including in the instructions the language "'natural and continuous sequence,'" "'efficient intervening cause,'" and "'necessarily sets in operation the factors that accomplish the result.'" (Id. at p. 520.) Here, the causation instruction's first paragraph explained what it means to be a natural and probable consequence of defendant's acts. The second paragraph deals with what constitutes a substantial factor of the victim's death. In no part of this instruction does the language include the phrasing held to be confusing in Hebert.
Further the jurors were "instructed in clear and simple language rooted in the doctrine of foreseeability, not unclear and confusing statements on the doctrine of proximate cause." The jurors were instructed that "[a] natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes." The phrase "likely to happen" is "clear and simple language" explaining the concept of foreseeability. Since accurate written instructions were provided to the jury and are the ones we presume the jury used, the court did not err when some of the written instructions were not included in the oral instructions and some of the oral instructions were paraphrased or referred back to other instructions.*fn3
The Court Adequately Instructed The Jury On Independent Intervening Cause
Next, defendant argues that "the trial court erroneously failed in its sua sponte duty to instruct the jury on independent intervening cause." Defendant's argument lacks merit.
"A court must instruct sua sponte on general principles of law that are closely and openly connected with the facts presented at trial." (People v. Ervin (2000) 22 Cal.4th 48, 90.) Defendant contends that the trial judge was obligated to instruct on independent intervening cause because the matter was at issue since the victim's grabbing of the steering wheel was an independent intervening cause. "A court is required to instruct on the law applicable to the case, but no particular form is required; the instructions must be complete and a correct statement of the law. [Citation.] The meaning of instructions is tested by 'whether there is a "reasonable likelihood" that the jury misconstrued or misapplied the law in light of the instructions given, the entire record of trial, and the arguments of counsel.' [Citation.]" (People v. Fiu (2008) 165 Cal.App.4th 360, 370.)
The relevant law provides that, "an 'independent' intervening cause will absolve a defendant of criminal liability. [Citation.] However, in order to be 'independent' the intervening cause must be 'unforeseeable . . . an extraordinary and abnormal occurrence, which rises to the level of an exonerating, superseding cause.' [Citation.] On the other hand, a 'dependent' intervening cause will not relieve the defendant of criminal liability. 'A defendant may be criminally liable for a result directly caused by his act even if there is another contributing cause. If an intervening cause is a normal and reasonably foreseeable result of defendant's original act the intervening act is "dependent" and not a superseding cause, and will not relieve defendant of liability. [Citation.] " The consequence need not have been a strong probability; a possible consequence which might reasonably have been contemplated is enough.  The precise consequence need not have been foreseen; it is enough that the defendant should have foreseen the possibility of some harm of the kind which might result from his act."'" (People v. Funes (1994) 23 Cal.App.4th 1506, 1523.)
Here, the court instructed the jury as follows:
"An act causes death if the death is the direct, natural, and probable consequence of the act and the death would not have happened without the act. A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all of the circumstances established be the evidence.
"The failure of Fabian Perez or another person to use reasonable care may have contributed to the death. But if the defendant's act was a substantial factor causing the death, then the defendant is legally responsible for the death even though Fabian Perez or another person may have failed to use reasonable care. If you have a reasonable doubt whether the defendant's act caused the death, you must find him not guilty."
This instruction correctly informed the jury that liability would not be cut off for an intervening act if the victim's death was nevertheless a "direct, natural, and probable consequence" of defendant's original act. (People v. Fiu, supra, 165 Cal.App.4th at p. 372.) Further, defense counsel commented on the instructions and argued to the jury that Perez's action of grabbing the steering wheel was unforeseeable; thereby arguing that something unusual intervened to cut off defendant's responsibility. Since the jury was correctly instructed on the applicable legal principles, "'[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.'" (Id. at p. 370.) Defense counsel never requested clarifying or amplifying language, therefore the court did not have a duty to deliver a more detailed instruction pertaining to independent intervening cause.
The Court Adequately Instructed The Jury On Foreseeability
Finally, defendant argues that, "[t]he trial court erroneously instructed the jury that Fabian Perez's failure to use reasonable care may have contributed to his death, but did not absolve defendant of legal responsibility if [defendant]'s act was a substantial factor causing death." Basically, defendant argues that the court erred because it instructed on substantial factor, but ignored the requirement of foreseeability. This, defendant argues, allowed the jury to convict based only on whether defendant's act was a substantial factor of Perez's death and not whether Perez's death was a foreseeable result of defendant's act.
As stated above, in determining whether error was committed by giving or not giving an instruction, it is important to consider the instructions as a whole and to assume the jurors are intelligent persons capable of understanding and correlating all instructions given. (People v. Romo (1975) 47 Cal.App.3d 976, 990.) In his argument, defendant takes issue with the trial court's instructions drawn from CALCRIM No. 620 contending that "[t]he instruction erroneously disregarded, ignored, and conflicted with foreseeability" because it allowed the jury to convict based on whether defendant's act was a substantial factor of Perez's death. Defendant is mistaken because the court did, in fact, instruct on foreseeability.
The instruction about which defendant complains does not start with the notion that defendant is liable as long as he was a substantial factor in the victim's death. Instead, the language first instructs the jury on what it means to be the cause of death. The jury was initially told that "[a]n act causes death if the death is the direct, natural, and probable consequence of the act and the death would not have happened without the act. A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes."
This portion of the instruction informs the jury that a reasonable person would know Perez's death is likely to occur if nothing unusual intervenes, i.e., it is foreseeable. The language from CALCRIM No. 620 then goes on to say that regardless of Perez's unreasonableness, defendant is still responsible if his act was a substantial factor contributing to Perez's death. Taken together, these instructions not only inform the jury that defendant's act must have been a substantial factor contributing to Perez's death, but that Perez's death must also have been a foreseeable consequence of defendant's substantial act. Because the court instructed on natural and probable consequences of defendant's act, the court did instruct the jury on foreseeability and the court did not err.
The judgment is affirmed.
BUTZ, J. HOCH, J.