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People v. Elder

California Court of Appeals, Sixth District

April 26, 2017

THE PEOPLE, Plaintiff and Respondent,
STUART ANDREW ELDER, Defendant and Appellant.

         Monterey County Superior Court, Case No.: SS132220A, Hon. Pamela L. Butler, Trial Judge

          Attorneys for Plaintiff/Respondent: The People Xavier Becerra Attorney General of California Gerald A. Engler Chief Assistant Attorney General Jeffrey M. Laurence Senior Assistant Attorney General Bruce M. Slavin Deputy Attorney General. David H. Rose Deputy Attorney General

          Attorneys for Defendant/Appellant: Stuart Andrew Elder Charles M. Bonneau, Jr. Attorney at Law Under Appointment by the Court of Appeal

          Grover, J.

         A jury convicted defendant Stuart Andrew Elder of gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a)); driving under the influence of alcohol causing injury (Veh. Code, § 23153, subd. (a)); and driving with a blood-alcohol concentration of 0.08% or greater causing injury (Veh. Code, § 23153, subd. (b)). The jury found true allegations that he inflicted great bodily injury (Pen. Code, § 12022.7, subd. (a)) and inflicted bodily injury to multiple victims (Veh. Code, § 23558). Defendant was sentenced to 13 years in prison: two years on the Vehicle Code section 23153 charge; three consecutive three-year terms for three separate Penal Code section 12022.7(a) enhancements; and a consecutive two-year term for the Vehicle Code section 23558 enhancement.

         Defendant contends the trial court erred by (1) denying his motion to suppress evidence of his blood-alcohol chemical test results; (2) denying his motion to compel discovery of records relating to other collisions at the same location; (3) excluding evidence of a chemical test result indicating a high blood-alcohol level of the victim driver; (4) failing to adequately instruct the jury on the principle of causation; and (5) imposing a consecutive two-year enhancement under Vehicle Code section 23558 in addition to the enhancements under Penal Code section 12022.7, subdivision (a).

         We find no error affecting defendant's conviction, but for the reasons explained we find the trial court erred in imposing a consecutive two-year term for the Vehicle Code section 23558 enhancement. We will therefore reverse the judgment and remand for resentencing.


         Factual Background

         Defendant was driving home after drinking multiple glasses of wine at a restaurant with friends. While on a narrow two-lane road with a 25 mile per hour speed limit, he accelerated to over 70 miles per hour, veered momentarily into the opposing lane, and collided with an oncoming car. The two occupants of the other car were killed instantly, and the passenger riding in defendant's vehicle was injured. Following the collision, defendant's blood-alcohol concentration was measured to be 0.17 percent, over twice the legal limit.

         Defendant's Motion to Suppress

         Before trial, defendant moved under Penal Code section 1538.5 to suppress evidence of the chemical test result showing his blood-alcohol level. The grounds for the motion were that defendant did not consent to the chemical testing of his blood and no other United States Constitution Fourth Amendment exception justified the warrantless search. The court held a hearing, at which the California Highway Patrol officer who arrested defendant testified about the events leading to the arrest and obtaining a blood sample from defendant.

         The officer testified that upon arriving at the scene of the traffic collision he approached the defendant, who had been identified as the driver of one of the vehicles. Defendant admitted he had been drinking alcohol, and a preliminary alcohol screening device indicated the presence of alcohol in his system. The officer advised defendant he was being placed under arrest, and he was then transported by ambulance to the hospital for medical treatment with the officer following behind.

         While at the hospital, the officer advised defendant of the implied consent law (Veh. Code, § 23612) and requested that he submit to a chemical test. Defendant agreed to submit to a blood test, and signed a form indicating his consent before the blood sample was drawn. The form has a handwritten notation of the time it was signed and the person drawing the blood signed a form stating the time the draw was performed. The times recorded on those forms indicate the blood was drawn four minutes before the consent form was signed. The officer believes the times were recorded that way because he wrote the time on the form based on his wristwatch reading and the technician who wrote the time of the blood sample based it on the time shown by a wall clock. According to the officer, the blood sample was drawn after defendant signed the form consenting to the blood draw.

         The trial court found that defendant was placed under arrest at the scene of the incident, signed a consent form for the blood test, and then the blood was drawn. After making those findings, the court denied the motion to suppress.

         Discovery Dispute

         Using the procedure provided for by Penal Code section 1054.5, defendant informally requested a number of items from the prosecution, including “[a]ll local law enforcement reports regarding accidents at the [relevant intersection] in the last seven years.” Defense counsel later narrowed that request to only accident reports maintained by the California Highway Patrol. The prosecution refused to provide any accident reports, and the defendant filed a motion to compel discovery. The trial court denied the motion, finding that information related to other accidents at the location of defendant's collision was not relevant to any issues in the case.

         Evidentiary Issues and Jury Instructions

         The prosecution moved in limine for an order excluding evidence relating to contributory negligence by the driver of the vehicle with which defendant collided, including any evidence of that driver's blood-alcohol level. Defendant opposed the motion, arguing that evidence of the other driver's blood-alcohol level was relevant to the issue of causation and was therefore admissible.

         Three different postmortem chemical testing techniques that were performed on the deceased driver apparently yielded three different results, one showing a 0.19 percent blood-alcohol concentration, one a 0.08 percent, and the other a 0.07 percent. While hearing argument from both counsel on the issue of the admissibility of the test results, the court expressed its view that “at a minimum, the court could allow in evidence that there was alcohol in her system[, ]” but that the court was unlikely to allow evidence of the specific blood-alcohol level out of concern that doing so would necessitate the undue consumption of time and require a “mini-trial on blood alcohol samples from a deceased person and fighting as to what the actual BA was and taking days and days of testimony to have experts opine as to how … a non-living body processes alcohol ….” The court further commented, “I'm not saying that's what's going to happen. I'm just trying to understand where we're going with this.”

         After argument on the prosecution's in limine motion, the court stated: “In regards to the alcohol, I'm going to do some research on that. I am concerned about having mini-trials on a blood-alcohol level, but I'm going to do some research on that. We'll have a decision long before you do your opening statements.”

         The court never ruled on the issue of whether a specific blood-alcohol level was admissible, because the prosecutor and defense counsel announced they would stipulate that the other driver's blood-alcohol level was 0.07 percent. That stipulation was read to the jury at trial.

         Defendant requested that in addition to the pattern jury instructions for the charged offenses, the jury be instructed with CACI No. 411, an instruction designed for use in civil cases which reads, “Every person has a right to expect that every other person will use reasonable care [and will not violate the law], unless he or she knows, or should know, that the other person will not use reasonable care [or will violate the law].” The court declined to give CACI No. 411. Before closing arguments, defense counsel confirmed that he had not requested any other additional instructions.[1]

         Trial and Sentencing

         At trial, the prosecution presented evidence that defendant and his girlfriend were at a restaurant in Pebble Beach with friends for several hours just before the traffic collision. Defendant was drinking wine. Around 7:00 p.m., they got into defendant's Cadillac Escalade SUV and he began driving toward his home.

         The road defendant traveled is a narrow two-lane roadway separated by a double yellow line. Defendant's car was headed south and the car of driver Sharon Daly and passenger Linda Larone was traveling north on the same road.

         The prosecution presented extensive accident reconstruction evidence to establish that defendant was driving over 70 miles per hour when his tires lost contact with the roadway entering a curve, sending it drifting into the path of the oncoming car. At the moment of impact, defendant's vehicle was traveling around 70 miles per hour and the other car around 22 miles per hour. The speed limit for the road is 25 miles per hour.

         Ms. Daly and Ms. Larone were both killed by the impact of the collision. Defendant's passenger was injured, suffering a broken wrist and a torn labrum in her hip.

         A Highway Patrol officer who responded to the scene contacted defendant and noticed an odor of alcohol. The officer used a preliminary alcohol screening device to test defendant's breath, and it showed the presence of alcohol in defendant's system. Defendant was placed under arrest and taken to the hospital to be evaluated for injuries. Blood drawn from ...

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