IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Shasta)
March 28, 2012
THE PEOPLE, PLAINTIFF AND RESPONDENT,
PAUL ELLIS WELLS, DEFENDANT AND APPELLANT.
(Super. Ct. No. 08F8314) APPEAL from a judgment of the Superior Court of Shasta County, Bradley L. Boeckman, Judge. Reversed.
The opinion of the court was delivered by: Butz , J.
CERTIFIED FOR PUBLICATION
Defendant Paul Ellis Wells was charged with driving under the influence (DUI) of marijuana, causing injury (Veh. Code, § 23153, subd. (a)),*fn1 and driving with a suspended license (Veh. Code, § 12500, subd. (a)). It was further alleged he had inflicted great bodily injury upon three individuals. (Pen. Code, §§ 12022.7, subd. (a), 1192.7, subd. (c)(8).) The jury found defendant guilty on both counts and found the great bodily injury allegations true. Defendant was sentenced to an aggregate term of 12 years in state prison.
On appeal, defendant alleges the trial court prejudicially and erroneously failed to instruct the jury on his defense of unconsciousness and that the instructions provided prevented the jury from considering his defense. We agree and shall reverse the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The criminal charges in this case arise from an incident on April 7, 2008, wherein defendant crossed over the double yellow lines dividing a road and struck a car in the oncoming lane, seriously injuring three people in addition to himself.
A forensic toxicologist testified at trial that marijuana has both a stimulating effect and a sedative effect. At higher levels, it is possible to cause a person to pass out. It can affect information processing, coordination, and tracking abilities (which would be the ability of a driver to keep a car in the center of a lane). Blood drawn from defendant at the hospital approximately two hours after the collision showed the presence of delta-9-tetrahydrocannabininol (delta-9-THC)--the active ingredient in marijuana that produces the effects--in the amount of 6.9 nanograms per milliliter of whole blood.
The expert stated that immediately after smoking marijuana, the level of delta-9-THC may be as high as 100 to 200 nanograms. The level decreases such that three to four hours later, it can go down to 20 nanograms. Although the level of delta-9-THC in defendant's blood would have been much higher at the time of the collision than it was when his blood was drawn, there is no reliable way to extrapolate back and estimate the level. There is also no consensus in the scientific community as to the level of delta-9-THC that causes impairment and each individual reacts differently to the substance. Based on the presence of delta-9-THC in defendant's system and "the fact that he was driving poorly," the expert believed defendant was under the influence at the time of the collision.
The parties stipulated to a witness's statement that he saw defendant's truck drift across the double yellow lines and into the oncoming traffic. Defendant did not brake or swerve. As defendant's truck went by, just prior to the collision, the witness saw that defendant's head was tilted to the right and his eyes appeared to be closed.
Defendant's father had been riding as a passenger in defendant's truck at the time of the collision. He told the responding officer that, just prior to the collision, he saw defendant "slumped over the steering wheel, at which time he yelled at his son."
Initially unaware of defendant's accident or criminal charges, defendant's doctor testified that he first treated defendant in the emergency room in January 2009 for recurring bouts of vomiting. The doctor took a history from defendant, during which defendant described an incident (which was prior to the collision) when he had passed out and was taken to the emergency room. The doctor ordered a five-hour glucose tolerance test to investigate whether there was an underlying cause for episodes of passing out. The test results showed that three hours after being given a high sugar solution to drink, defendant's blood sugar level dropped to 45--which is well below normal and certainly low enough to cause someone to pass out.
The doctor testified that the condition of low blood sugar is a lifelong condition and considered prediabetic. He could not say, however, when defendant's condition of low blood sugar started and could not say with certainty that defendant suffered from low blood sugar at the time of the collision. Since the collision, defendant had been unable to consume a regular diet due to the recurring vomiting, had lost 40 pounds, and was severely underweight. Starvation or anorexic-type symptoms can lead to low blood sugar. Although defendant's doctor had no medical history for defendant prior to January 2009, based on defendant's glucose test results and symptoms, the doctor did believe that defendant's low blood sugar condition had existed for a "substantial period of time."
In November 2009, defendant's doctor ordered a "HIDA scan" to test defendant's gallbladder function. However, defendant also had low blood pressure and passed out during the IV preparation for the HIDA scan. He did not complete the test. The doctor explained that it is very likely that when one passes out from low blood sugar, the person will also have low blood pressure, which can itself be a cause of passing out.
Defendant argued that he was not under the influence of marijuana at the time of the collision and that the reason he crossed over the double yellow lines was because he had been rendered unconscious from his low blood sugar condition.
The trial court gave CALCRIM No. 2100 as follows:
"The defendant is charged in Count 1 with causing injury to another person while driving a vehicle under the influence of a drug in violation of California Vehicle Code section 23153, subdivision [(a)]. To prove that the defendant is guilty of this crime, the People must prove that, one, the defendant drove a vehicle; two, when he drove a vehicle, the defendant was under the influence of a drug; three, while driving a vehicle under the influence, the defendant also committed an illegal act or neglected to perform a legal duty; and four, the defendant's illegal act or failure to perform a legal duty caused bodily injury to another person.
"A person is under the influence if, as a result of taking a drug, his mental or physical abilities are so impaired that he is no longer able to drive a vehicle with the caution of a sober person using ordinary care under similar circumstances. A drug is a substance or combination of substances, other than alcohol, that could so affect the nervous system, brain or muscles of a person that it would appreciably impair his or her ability to drive a vehicle as an ordinarily cautious person, in full possession of his or her faculties and using reasonable care, would drive a vehicle under similar circumstances.
"The People allege that the defendant committed the following illegal act: Violation of Vehicle Code section 21460, double lines, as defined in the next instruction. To decide whether [the defendant] ha[s] committed a violation of . . . section 21460, please refer to the separate instructions that I will give you on that crime.
"The People also allege that the defendant failed to perform the following legal duty while driving the vehicle: the duty to exercise ordinary care at all times and to maintain proper control of the vehicle.
"And, jurors, it's the second half of the next paragraph that has been added to this instruction. What I've just read to you is the original version, unchanged, but the second sentence in this next paragraph is the additional requirement.
"You must all agree on which act the defendant committed or which duty the defendant failed to perform. You must also all agree on which victim or victims suffered bodily injury. Using ordinary care means using reasonable care to prevent reasonably foreseeable harm to someone else. A person fails to exercise ordinary care if he or she does something that 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. An act causes bodily injury to another person if the injury is the direct, natural and probable consequence of the act and the injury 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 by the evidence. If the defendant was under the influence of a drug then it is not a defense that something else also impaired his ability to drive a vehicle." (Italics added.)
The trial court did not give CALCRIM No. 3425, or otherwise instruct the jury on "unconsciousness." CALCRIM No. 3425, entitled "Unconsciousness" (Apr. 2008), provides: "The defendant is not guilty of __________ if (he/she) acted while legally unconscious. Someone is legally unconscious when he or she is not conscious of his or her actions. [Someone may be unconscious even though able to move.] [¶] Unconsciousness may be caused by (a blackout[,]/ [or] an epileptic seizure[,]/ [or] involuntary intoxication[,]/ [or] sleepwalking[,]/ or __________ ). [¶] The People must prove beyond a reasonable doubt that the defendant was conscious when (he/she) acted. If there is proof beyond a reasonable doubt that the defendant acted as if (he/she) were conscious, you should conclude that (he/she) was conscious. If, however, based on all the evidence, you have a reasonable doubt that (he/she) was conscious, you must find (him/her) not guilty."
Defendant argues the trial court erred in failing to instruct sua sponte on the unconsciousness defense. Penal Code section 26 exempts from criminal responsibility persons who committed the act charged "without being conscious thereof." (Pen. Code, § 26, par. Four; People v. Chaffey (1994) 25 Cal.App.4th 852, 855 (Chaffey).)
The trial court has "an affirmative duty to give, sua sponte, correctly phrased instructions on a defendant's theory of defense where it is obvious that the defendant is relying upon such a defense, or if there is substantial evidence to support it." (People v. Cole (1988) 202 Cal.App.3d 1439, 1446, disapproved on a different ground in People v. Martin (2001) 25 Cal.4th 1180, 1182.) A criminal defendant "'has a constitutional right to have the jury determine every material issue presented by the evidence, . . .' [Citation.] An erroneous failure to instruct on an affirmative defense relied upon by the defendant constitutes a denial of this right which 'is in itself a miscarriage of justice . . . .'" (People v. Stewart (1976) 16 Cal.3d 133, 141.) The duty to instruct on the theory of the defense "include[s] tailoring or correcting an instruction to the particular facts of the case." (People v. Cole, supra, 202 Cal.App.3d at p. 1446.)
Here, it was indisputably clear that defendant was relying on involuntary unconsciousness as a defense. The trial court and the parties thoroughly discussed the issues of causation, unconsciousness, and defendant's alleged low blood sugar. There can be no question, based on these discussions and on defense counsel's closing argument, that it was defendant's theory that he could not be found guilty because the reason he crossed the double yellow lines and collided with the victims' vehicle was due to his low blood sugar, causing him to pass out, and not to being under the influence of marijuana. There was also sufficient evidence to support the defense of unconsciousness. The trial court, however, did not give CALCRIM No. 3425, or otherwise instruct the jury on unconsciousness. It had a sua sponte duty to do so under the circumstances.*fn2 (People v. Breverman (1998) 19 Cal.4th 142, 157; People v. Stewart, supra, 16 Cal.3d at p. 140.)
The California Supreme Court has not yet determined what test of prejudice applies to the failure to instruct on an affirmative defense. (People v. Salas (2006) 37 Cal.4th 967, 984.) We need not decide which standard, Chapman*fn3 or Watson,*fn4 is the appropriate one since the error in the case at bar would result in reversal even under the less stringent Watson standard; i.e., the judgment is reversed when it appears from an examination of the record that there is a reasonable probability the defendant would have obtained a more favorable outcome had the error not occurred (People v. Watson, supra, 46 Cal.2d at p. 836).
The erroneous failure to instruct on a defense can be found harmless where "other proper instructions adequately guide the jury in reaching factual determinations on those issues which would have been presented to the jury by the omitted instruction." (People v. Jones (1991) 234 Cal.App.3d 1303, 1314, disapproved on other grounds in People v. Anderson (2011) 51 Cal.4th 989, 998, fn. 3.) But here, the other instructions provided to the jury actually contributed to the problem.
Violation of Vehicle Code section 23153, subdivision (a) requires proof of three distinctive elements: (1) that the defendant drove a vehicle while under the influence of alcohol or a drug; (2) that, when so driving, defendant did some act which violated the law or failed to perform a duty required by law; and (3) that, as a proximate result of such violation of law or failure to perform such duty, another person was injured. (People v. Oyaas (1985) 173 Cal.App.3d 663, 667.)
The trial court followed the bench notes to CALCRIM No. 2100 and gave that instruction, which included the following last sentence: "If the defendant was under the influence of a drug, then it is not a defense that something else also impaired his ability to drive a vehicle." The bench notes provide that the foregoing instruction should be given "if there is evidence of an additional source of impairment such as an epileptic seizure, inattention, or falling asleep." (Bench Notes to CALCRIM No. 2100 (Dec. 2008 rev.) (2011 ed.) at p. 131.) Although the origin of this bench note is unclear, as no authority is cited for the proposition in either CALCRIM No. 2100 or its predecessor, CALJIC No. 12.60, the proposition is correct--but only as it relates to the first element of the offense--that is, to state that it would not be a defense to being impaired or under the influence due to alcohol or a drug, that the driver was also impaired due to some other source. To the extent, however, that the last sentence of CALCRIM No. 2100 tends to negate the defense of unconsciousness, it is contrary to long-established law that unconsciousness is a complete defense to the second element of the offense.
The second element of the DUI causing injury offense requires that defendant did some act that violated the law or failed to perform a duty required by law. That violation of the law must be in addition to driving under the influence. (People v. Oyaas, supra, 173 Cal.App.3d at pp. 667-668.) Unconsciousness, when not voluntarily induced, is a defense, as a person is not criminally responsible for acts he committed while unconscious. (Pen. Code, § 26, subd. Four; Chaffey, supra, 25 Cal.App.4th at p. 855; see also People v. Rogers (2006) 39 Cal.4th 826, 887.) However, due to the manner in which the jury was instructed with the language in CALCRIM No. 2100, that it is not a defense that something else also impaired defendant's ability to drive, the jury could have concluded that it was not a defense to this second element--a violation of law or failure of duty--that something else impaired defendant's ability to drive, thereby negating the defense of unconsciousness. Not only is the language of the instruction not limited to the first element of the offense, but it is provided at the end of CALCRIM No. 2100, and in this case, included with the instructions regarding whether the violation of law or failure of duty was the cause of the injury. In this regard, the language facilitates the instruction being construed as negating a defense of unconsciousness which, here, was exacerbated by the fact that the jury also was not instructed on the defense of unconsciousness.
For the foregoing reasons, this particular language in CALCRIM No. 2100, should be modified and read at the end of the paragraphs defining "under the influence" and "drug" so that the instruction reads: "A person is under the influence if, as a result of taking a drug, his mental or physical abilities are so impaired that he is no longer able to drive a vehicle with the caution of a sober person, using ordinary care, under similar circumstances. A drug is a substance or combination of substances, other than alcohol, that could so affect the nervous system, brain or muscles of a person that it would appreciably impair his ability to drive a vehicle as an ordinarily cautious person, in full possession of his faculties and using reasonable care, would drive a vehicle under similar circumstances. If the defendant was under the influence of a drug, then it is not a defense to being impaired that something else also impaired his ability to drive."
Additionally, since the defense of unconsciousness was raised so as to warrant an instruction, the trial court should instruct the jury, sua sponte, at the end of CALCRIM No. 2100 with CALCRIM No. 3425, as follows: "The defendant is not guilty of committing an illegal act and/or neglecting to perform a legal duty if he committed the act or neglected the duty while legally unconscious. Someone is legally unconscious when he is not conscious of his actions. [Someone may be unconscious even though able to move.] [¶] Unconsciousness may be caused by (a blackout[,]/ [or] an epileptic seizure[,]/ [or] involuntary intoxication[,]/ [or] __________ ). [¶] The People must prove beyond a reasonable doubt that the defendant was conscious when he committed the act or neglected the duty. If there is proof beyond a reasonable doubt that the defendant acted as if he were conscious, you should conclude that he was conscious. If, however, based on all the evidence, you have a reasonable doubt that he was conscious, you must find him not guilty."
Furthermore, upon request, the trial court should instruct the jury that voluntary intoxication is not a defense, as follows: "Unconsciousness due to voluntary intoxication is not a defense. A person is voluntarily intoxicated if he becomes intoxicated by willingly using any intoxicating drug, drink, or other substance knowing that it could produce an intoxicating effect, or willingly assuming the risk of that effect." (See CALCRIM. No. 3426.)
Here, unconsciousness was one of defendant's primary defenses to the charged crime.*fn5 As we have explained, the failure to instruct the jury on unconsciousness effectively removed defendant's principle defense from the jury's consideration. The harm to defendant was then magnified by the instruction from CALCRIM No. 2100 as read, that it is not a defense that something else impaired his ability to drive. Under either standard of review--Chapman or Watson--the instructional error here was prejudicial. The judgment must be reversed.
The judgment is reversed. (CERTIFIED FOR PUBLICATION)
NICHOLSON , Acting P. J.
MURRAY , J.