P. v. Barranti

Filed 6/29/06 P. v. Barranti CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

A jury found defendant Thomas Barranti guilty of gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5).[1] The court suspended imposition of sentence and granted probation. On appeal, he contends that the evidence was insufficient to support a finding of gross negligence and the trial court committed multiple instructional errors amounting to a violation of due process.

We affirm.

A. Evidence

The evidence viewed under the proper standard (see People v. Snow (2003) 30 Cal.4th 43, 66) shows the following.

On November 16, 2002, Charlotte Kraemer, a longtime friend of Debra Kostreba, and defendant visited Kostreba at her home on Mar Monte Avenue. It was still light outside when they arrived. Kraemer appeared to already have been "drinking a little bit" because she was speaking louder than she normally did. Kraemer was an alcoholic and drank a lot.

Kostreba , Kostreba's live-in boyfriend, Kraemer and defendant shared a number of bottles of wine during the visit. Kostreba was not paying attention to how much each of them drank. The others may have drank more wine than she estimated. She and her boyfriend sold wine for their jobs and they had many cases of wine in the house and open bottles of wine in the refrigerator.

At some point in the evening, Kraemer fell asleep. Kraemer appeared somewhat intoxicated before she took the nap. When she awoke, Kraemer announced she was tired and wanted to go home. Kostreba walked Kraemer and defendant to the front door. At that time, Kraemer appeared more tired than intoxicated to Kostreba. Kraemer and defendant left Kostreba's home after dark, probably between 8:30 p.m. and 9 p.m., in Kraemer's car, a green Dodge Neon.

A single-car accident occurred at the Y-intersection of Mar Monte Avenue and Larkin Valley Road in Santa Cruz County, a distance of 1.2 miles from Kostreba's Mar Monte address. In that area, Mar Monte Avenue is bounded by embankments. There is also an embankment on the north side of Larkin Valley Road, which curves.

Northbound Mar Monte Avenue ends in two lanes at Larkin Valley Road. One lane has a stop sign and a limit line. The other lane has a yield sign for drivers proceeding eastbound on Larkin Valley Road. Between the two lanes is a raised concrete island. On the north side of Larkin Valley Road there is an unpaved shoulder and then a drop-off to a steep embankment. It takes approximately two to three minutes at the posted 35 mile per hour speed limit to travel to that intersection from Kostreba's Mar Monte address.

The Dodge Neon was discovered about 20 to 30 feet downhill from the north side of Larkin Valley Road. Neither occupant was wearing a seat belt. The accident could be described as "fairly low trauma" since there was minimal damage to the car and minimal medical trauma.

Skid marks almost perpendicular to the stop limit line and leading to the embankment on the north side of Larkin Valley Road were evident at the scene of the accident. They suggested a hard application of the brakes causing the tires to lock and a driver who was conscious, awake, and frightened. It could be implied from the skid marks that the vehicle went through the stop sign in a straight line before going over the embankment. The driver of the vehicle "probably noticed a stop sign" but by the time he realized he needed to stop and "get on the brakes," he was "11 feet into it . . . ." There were no indications that the vehicle made evasive maneuvers before reaching the shoulder of the road. It was a cool, clear evening with dry conditions.

It is unlawful to drive through a stop sign without stopping. A driver is legally required to wear a safety belt and is responsible for passengers being buckled in. A driver may be cited for his own failure and any passenger's failure to wear a safety belt.

Paramedic Phillip Humble, who was dispatched to the accident at 9:20 p.m. that night, his partner, and a firefighter climbed down the embankment and found the vehicle. It had come to rest on the driver's side of the car and was being prevented from rolling downhill by a couple of small trees.

After ensuring that the vehicle was not going to move any further, Humble and others tried to make contact with the one individual whom they saw by the light of their flashlights. They yelled and hit the car and windshield with their hands but got no response. They unsuccessfully attempted to open the passenger door, which was located on the top of the vehicle as it had come to rest. Eventually, Humble's partner broke the vehicle's back windshield.

Humble entered the vehicle on his hands and knees and crossed to the body, which was resting on the driver's side window area. He discovered that the person, identified in court as defendant, still had a pulse. Humble observed that the air bags had deployed but had since deflated.

At first defendant did not respond to Humble but then defendant began to moan and groan. He gave his name as "Tom." As Humble assessed defendant for injury and pain, Humble asked defendant if he was the driver because Humble was concerned that defendant had contacted the steering wheel or steering column. Defendant indicated he was the driver. When asked about consumption of alcohol, defendant disclosed that he had a couple of drinks.

The defendant was ultimately placed in a cervical collar and handed out of the vehicle on a backboard through the broken rear window. Lawrence Erickson, a fire captain with the California Department of Forestry and Fire Protection and one of the responders who was dispatched to a crash scene on the evening of November 16, 2002, assisted with removal of the backboard from the broken rear window of the vehicle. He noticed the smell of alcohol and observed that defendant's speech was slurred.

After defendant was completely extricated from the vehicle, Humble, to his surprise, discovered a female body in the car. Her legs were resting on the car's dashboard. He found she had no pulse and her body was cold. After concluding she was deceased, Humble left the car through the broken rear window. Defendant, still on the backboard, was placed in a Stokes basket and taken up the hill with ropes.

Upon reaching the roadway, defendant was removed from the Stokes basket and placed in the ambulance gurney. In the ambulance, Humble again asked defendant if he had been the driver of the vehicle. Defendant answered, "Yes." Humble told him the other individual in the vehicle had not made it through the accident. Defendant became agitated and upset but he did not say he was not the driver.

Veronica Sherwood, a registered nurse, was working as a helicopter flight nurse on the evening of November 16, 2002. She departed from Stanford Hospital at 9:50 p.m. and arrived at the Watsonville Hospital landing zone at 10:14 p.m. Within a minute or so, an ambulance carrying defendant arrived. During their initial contact, his eyes were closed but he was responding to questions. Defendant complained of pain in his right shoulder, right elbow, back, and neck but he assertively refused pain medication and a second IV. Her assessment was minor trauma. The helicopter, which had lifted off at 10:22 p.m., arrived on the roof of Santa Clara Valley Medical Center at 10:41 p.m.

Defendant's blood was drawn at 11:36 p.m. and tests showed a blood alcohol concentration of .19. Defendant's blood concentration was over twice the legal limit in the State of California. Consumption of alcohol slows "perception reaction time." A person cannot safely operate a motor vehicle with a .19 blood alcohol level.

It takes approximately 11 drinks for a person who is six foot two inches, 180 pounds, approximately defendant's size, to reach a .19 blood alcohol level. Assuming a person has a blood alcohol concentration of .19 at 11:30 p.m., the person did not drink after 9 p.m., and the alcohol had been completely absorbed into the person's blood system at 9 p.m., it could be estimated that the person had a blood alcohol level of .24 at 9 p.m. based on the typical burn-off rate of .02 per hour. A blood alcohol level of .24 indicates consumption of approximately 14 drinks.

Steven Plaskett, a deputy sheriff coroner with the County of Santa Cruz, received a call about the fatal traffic collision at Mar Monte Avenue and Larkin Valley Road at about 10:05 p.m. on November 16, 2002. He went to the scene and began his investigation. He found Kraemer's body on the driver's side of the Dodge Neon. Her legs were above the steering wheel and her feet were above the dashboard. Plaskett photographed the exterior of the vehicle resting on the driver's side and the decedent inside the vehicle.

Richard Mason, MD, the forensic pathologist of the sheriff coroner of Santa Cruz County, performed an autopsy on Charlotte Kraemer. He determined her cause of death was "positional asphyxia with contributory causes of impact injury to the head and alcohol intoxication." He based his conclusion partially on Plaskett's photographs which showed that "both her legs and her feet were extended above the dashboard with her toes almost at the junction where the glass comes down to the dash and her buttocks are wedged partially above the steering wheel and she is crammed into this space on the left side, near the left pillar, which is the front windshield post, and the back of her neck is jammed up against the roof and she's folded with her head tightly down so that her chin is tightly down onto her chest and her face is very purplish in color." He indicated that it was not uncommon for individuals who were severely alcohol intoxicated to "get into a position where they are unable to expire fully and that, plus the intoxication, leads to inadequate breathing and anoxic death." They suffocate because they are so intoxicated they cannot get themselves out of that position.

Testing showed that Kraemer had a blood alcohol concentration of 0.36 and had taken "an upper therapeutic dose" of Vicodin, which would have had a respiratory depressant effect and a soporific effect. The condition of her liver indicated she was an alcoholic.

Dr. Mason did not think that Kraemer would have been capable of operating a vehicle. It was his opinion that, given Kraemer's height of five foot six inches and the position of the driver's seat, it would have been difficult for Kraemer to operate the vehicle normally. A blood alcohol concentration of .36 in a person who was five foot six inches and 150 pounds indicates consumption of approximately 18 drinks.

Dr. Mason concluded that Kraemer was the passenger and it was likely that she had her feet up on the dash. He explained that "when the vehicle starts going down the embankment it's sort of like dropping the elevator out from under you and, relative to the interior of the vehicle, the people inside are going to go up." He thought Kraemer had "floated right over the steering wheel . . . ." He indicated that in this situation where the vehicle was lying on its left side, gravity was going to move occupants and things in the car to the left.

Even though the defendant was found on top of the decedent, Dr. Mason concluded that the decedent fell across from the passenger side, went over the steering wheel, and ended up jammed into the corner. In his opinion, it was physically impossible for her to have come from below the steering wheel. It was also Dr. Mason's opinion that a photograph of defendant showing a linear bruise across the inner right forearm "could very well be associated with the detonation of an air bag" impacting someone holding onto the steering wheel.

David Smith, an accident reconstructionist, stated that the right arm injury evident in a photo of defendant was a typical injury often seen with air bag deployments from the steering wheel air bag. He indicated that it was a relatively low speed accident, a 10 to 15 mile per hour accident. Nothing would account for defendant's injury if he had been the passenger.

Smith agreed that the vehicle's initial point of impact was on its front-right quadrant and the unrestrained occupants would have then moved toward the front-right quadrant of the vehicle. Smith explained that there were no lateral forces in the accident that would have moved the occupants side to side until the vehicle made gentle contact with the ground and then toppled onto its driver's side. Smith described the motion of the vehicle as a "gentle rotation" cushioned by the vegetation.

B. Sufficiency of the Evidence of Gross Negligence

Defendant asserts that the evidence was insufficient to prove he was grossly negligent. He asks this court to either reverse his conviction or reduce his conviction to vehicular manslaughter while intoxicated without gross negligence (§ 192, subd. (c)(3)).

"[O]ur role on appeal is a limited one." (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) "The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Barnes (1986) 42 Cal.3d 284, 303 . . . ; People v. Johnson, supra, 26 Cal.3d at pp. 576-578.) On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (Johnson, supra, 26 Cal.3d at pp. 576-577.) [¶] Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. (Barnes, supra, 42 Cal.3d at p. 303.) Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder. (Id., at pp. 303-304; see also People v. Mayberry (1975) 15 Cal.3d 143, 150 . . . [reviewing claim of inherent improbability of testimony].)" (People v. Jones (1990) 51 Cal.3d 294, 314.)

"Gross negligence is the exercise of so slight a degree of care as to raise a presumption of conscious indifference to the consequences. (People v. Watson (1981) 30 Cal.3d 290, 296 . . . .) 'The state of mind of a person who acts with conscious indifferences to the consequences is simply, "I don't care what happens." ' (People v. Olivas (1985) 172 Cal.App.3d 984, 988 . . . .) The test is objective: whether a reasonable person in the defendant's position would have been aware of the risk involved. (People v. Watson, supra, 30 Cal.3d at p. 296.)" (People v. Bennett (1991) 54 Cal.3d 1032, 1036.)

"[T]he finding of gross negligence required to convict a defendant of gross vehicular manslaughter while intoxicated may be based on the overall circumstances surrounding the fatality. Intoxication is one of those circumstances and its effect on the defendant's driving may show gross negligence." (Bennett, supra, 54 Cal.3d at p. 1040.) "[A] driver's level of intoxication is an integral aspect of the 'driving conduct.' A high level of intoxication sets the stage for tragedy long before the driver turns the ignition key. 'There is a very commonly understood risk which attends every motor vehicle driver who is intoxicated. [Citation.] One who wilfully consumes alcoholic beverages to the point of intoxication, knowing that he thereafter must operate a motor vehicle, thereby combining sharply impaired physical and mental faculties with a vehicle capable of great force and speed, reasonably may be held to exhibit a conscious disregard of the safety of others. The effect may be lethal. . . .' (Taylor v. Superior Court (1979) 24 Cal.3d 890, 896-897 . . . .)" (Id. at p. 1038.)

"The jury should therefore consider all relevant circumstances, including level of intoxication, to determine if the defendant acted with a conscious disregard of the consequences rather than with mere inadvertence. (See, e.g., People v. Costa (1953) 40 Cal.2d 160, 166 . . . [evidence that defendant was specifically warned not to speed a half-hour prior to fatal accident]; People v. Leffel (1988) 203 Cal.App.3d 575, 584 . . . [evidence that defendant had not slept for three nights]; Von Staden, supra, 195 Cal.App.3d 1423, 1428 . . . [evidence that defendant was specifically warned not to drive while intoxicated]; People v. Roerman (1961) 189 Cal.App.2d 150, 159 . . . [evidence that defendant drove to heavily trafficked area with cast on her right foot].)" (Bennett, supra, 54 Cal.3d at p. 1038.) "[G]ross negligence may be shown from all the relevant circumstances, including the manner in which the defendant operated his vehicle, the level of his intoxication, and any other relevant aspects of his conduct." (People v. Ochoa, supra, 6 Cal.4th at p. 1207.)

In this case, the evidence indicated that defendant consumed far beyond a few social drinks, having ingested about 11 to 14 drinks. Defendant's blood alcohol level was high, more than twice the legal limit. Nevertheless, he drove at night in an area with hilly terrain and curving roads without seat belts for himself or his passenger. He traveled only a short distance before completely failing to negotiate an intersection. Not only did he fail to register the stop sign in time to stop at the limit line, he failed to prevent the car from completely crossing the paved road and its shoulder and going over an embankment. While defendant's conduct may not be as egregious as in some cases, a jury could reasonably conclude that the defendant acted with gross negligence given his extreme blood alcohol level.

C. Instructions

1. Instruction Regarding Simple Vehicular Manslaughter

Defendant argues that the trial court erred in instructing regarding general criminal intent since there was "no crime charged which could be committed with general intent." He maintains that the jury should have been told that the lesser included offense required only ordinary negligence. Defendant claims that the instructional error gave the incorrect impression that "a finding of ordinary negligence required acquittal" and "made a conviction on the lesser impossible." Defendant argues that the challenged instructions "effectively deprived [him] of the opportunity to be convicted of simple vehicular manslaughter while intoxicated instead of gross vehicular manslaughter while intoxicated" and the error is reversible under both the Chapman (Chapman v. California (1967) 386 U.S. 18, 24-26) and Watson (People v. Watson (1956) 46 Cal.2d 818, 836) standards of review.

The trial court instructed: "In the crime charged in Count 1, namely vehicular homicide with gross negligence while driving intoxicated, Penal Code section 191.5, and the lesser crime of vehicular homicide without gross negligence while driving intoxicated, Penal Code section 192 sub (c) sub (1) [sic], three, there must exist a union o[f] or joint operation of acts or conduct and general criminal intent. [¶] General criminal intent does not require an intent to violate the law. When a person intentionally does that which the law declares to be a crime, he is acting with general criminal intent even though he may not know that his act or conduct is unlawful." (Italics added.)

The court further defined gross vehicular manslaughter while intoxicated. It stated: "In the crime charged in Count 1 there must exist a union or joint operation or act or conduct and gross negligence." It explained: "The defendant is accused in Count 1 of having committed the crime of gross vehicular manslaughter while intoxicated in violation of Section 191.5 subdivision (a) of the Penal Code. Every person who drives a vehicle in a grossly negligent manner and in violation of Section 23152 or 23153 of the Vehicle Code and unintentionally but unlawfully kills another human being is guilty of the crime of gross vehicular manslaughter while intoxicated in violation of Penal Code Section 191.5, subdivision (a)." In addition to other pertinent instructions, the court instructed: "In order to prove this crime each of the following elements must be proved: [¶] The driver of the vehicle violated Vehicle Code Section 23152. In addition to that violation the driver of the vehicle committed the [sic] gross negligence, an unlawful act not amounting to a felony, namely a violation of Vehicle Code Section 22350, 22450(a) or 27315 sub (d) sub (1), dangerous to human life under the circumstances of its commission and that unlawful act was a cause of death of human being."

The court also defined gross negligence. It instructed: "Gross negligence means conduct which is more than ordinary negligence. Ordinary negligence is a failure to exercise ordinary or reasonable care. Gross negligence refers to negligent acts that are aggravated, reckless or flagrant and which are such a departure from the conduct of an ordinary, prudent, careful person under the same circumstances as to be contrary to a proper regard to human life or to constitute indifference to the consequences of those acts. The facts must be such that the consequence of negligent acts could reasonably have been foreseen and it must appear that the death was not the result of inattention, mistaken judgment or misadventure but the natural and probable result of an aggravated, reckless or flagrantly negligent act. [¶] The mere fact the defendant drives a motor vehicle under the influence of alcohol and violates a traffic law is insufficient in itself to constitute gross negligence. You must determine gross negligence from the level of the defendant's intoxication, the manner of driving and other relevant aspects of the defendant's conduct resulting in the fatal accident." (Italics added.)

Regarding the lesser vehicular manslaughter offense, the court instructed: "The defendant is accused in the lesser charge of having committed the crime of vehicular manslaughter while intoxicated in violation of section 192 subdivision (c) sub (3) of the Penal Code. Every person who drives a vehicle in violation of Section 23152 or 23153 of the Vehicle Code and unintentionally, but unlawfully kills another human being is guilty of the crime of vehicular manslaughter while intoxicated in violation of Penal Code Section 192 subdivision (c) sub (3)." The court specified: "In order to prove this crime each of the following elements must be proved: [¶] The driver of the vehicle violated Vehicle Code Section 23152 or 23153. In addition to that violation the driver of the vehicle committed an unlawful act not amounting to a felony, namely a violation of Vehicle Code Section 22350, 22450 sub (a) or 27315 sub (d) sub (1), dangerous to human life under the circumstances of its commission or committed, negligently, an act ordinarily lawful which might cause death and that unlawful or negligent act was a cause of death of a human being."

The court defined ordinary negligence. It instructed: "Negligence is the doing of something which a reasonably prudent person would not do or the failure to do something which a reasonably prudent person would do under similar circumstances. It is the failure to use ordinary or reasonable care. [¶] Ordinary or reasonable care is that care which persons of ordinary prudence would use in order to avoid injury to themselves or others under similar circumstances." (Italics added.)

The People respond that instruction regarding general criminal intent was required because the possible predicate offenses, a violation of Vehicle Code section 23152 or Vehicle Code section 23153, are general intent crimes. They cite People v. Butler (1986) 184 Cal.App.3d 469, which stated in its analysis of a section 654 claim that "[i]n the act of vehicular manslaughter defendant was acting with general intent." (Id. at p. 474.) They also cite People v. Lewis (1983) 148 Cal.App.3d 614, 619, which indicated without analysis that "a defendant at a blood alcohol level of .10 or higher must entertain the general intent to drive the vehicle" to violate former Vehicle Code section 23152, subdivision (b), because the provision "must be construed to require proof of scienter in order to survive constitutional challenge" under Colautti v. Franklin (1979) 439 U.S. 379 [99 S.Ct. 675].[2] (Id. at p. 619, fn. 3.) The People conclude that consequently "the jury needed and received the challenged instruction of general intent, the requisite mens rea for the triggering Vehicle Code violations." They also maintain the challenged general intent instruction was not misleading in the context of the instructions as a whole, which included "a complete and unambiguous instruction on the lesser included offense."

We do not agree that the trial court properly instructed on general criminal intent. Although section 20 states the general requirement that "[i]n every crime or public offense there must exist a union, or joint operation of act and intent, or criminal negligence," the Legislature remains free to dispense with this requirement or specify a lesser degree of culpability. (See People v. Vogel (1956) 46 Cal.2d 798, 801 [union of act and intent or criminal negligence is "invariable element of every crime unless excluded expressly or by necessary implication"]; In re Dennis B. (1976) 18 Cal.3d 687, 696 [People not required "to prove criminal ('gross') negligence, as ordinary negligence may form the basis of a vehicular manslaughter conviction"].) Neither gross vehicular manslaughter while intoxicated (§ 191.5) nor vehicular manslaughter while intoxicated (§ 192, subd. (c)(3)) is a crime of intention.

Section 191.5 expressly requires the proscribed acts be committed "with gross negligence." The requisite culpability for vehicular manslaughter without gross negligence is ordinary negligence. (See In re Dennis B., supra, 18 Cal.3d 687, 696 [former section 192, subdivision 3(b), which criminalized a homicide in the driving of a vehicle " '[i]n the commission of an unlawful act, not amounting to a felony, without gross negligence . . . .' "]; see also People v. Bussel (2002) 97 Cal.App.4th Supp. 1, 8 ["without gross negligence" means "ordinary negligence"]; § 195 [homicide is excusable when "committed by accident and misfortune, or in doing any other lawful act by lawful means, with usual and ordinary caution, and without any unlawful intent"].)

In addition, none of the possible predicate crimes in this case were crimes of intention. "[F]or certain types of penal laws, often referred to as public welfare offenses, the Legislature does not intend that any proof of scienter or wrongful intent be necessary for conviction." (In re Jorge M. (2000) 23 Cal.4th 866, 872; see In re Jennings (2004) 34 Cal.4th 254, 277 [public welfare offenses do not require proof of criminal intent].) Violations of traffic laws are commonly considered public welfare offenses. (See People v. Vogel (1956) 46 Cal.2d 798, 801, fn. 2 ["Under many statutes enacted for the protection of the public health and safety, e.g., traffic and food and drug regulations, criminal sanctions are relied upon even if there is no wrongful intent"]; see also Morissette v. U.S. (1952) 342 U.S. 246, 262, fn. 20 [72 S.Ct. 240] [citing violations of traffic regulations and violations of motor vehicle laws as common categories of public welfare offenses].)

"Alcohol-related offenses, such as driving with a prohibited blood-alcohol concentration (Ostrow v. Municipal Court (1983) 149 Cal.App.3d 668 . . . ) . . . , have been found to constitute such public welfare offenses." (In re Jennings, supra, 34 Cal.4th at p. 268; see Burg v. Municipal Court (1983) 35 Cal.3d 257, 264 [statutes defining substantive offense as the act of driving with a specified blood-alcohol level "represent a legislative determination that public safety is endangered when a person drives a motor vehicle while having a specified percentage . . . or more by weight of alcohol in his blood"].) Former Vehicle Code section 23152, subdivision (b), making it unlawful to drive a vehicle with a blood alcohol concentration of .10 percent or more, was held to be a public welfare offense. (See Ostrow v. Municipal Court (1983) 149 Cal.App.3d 668, 672, fn. 2, 675.) The California Supreme Court recently cited this case again as an example of a public welfare offense. (See People v. King (2006) 38 Cal.4th 617, 623.) We conclude that the present day Vehicle Code section 23152, which criminalizes driving under the influence or with a prohibited blood alcohol level, does not require a showing of general criminal intent.

Presumably, Vehicle Code section 23153 is also a public welfare offense not requiring general criminal intent since it proscribes driving under the influence or with a prohibited blood alcohol level and "concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver." "[W]hen a crime's statutory definition does not expressly include any scienter element, the fact the Legislature intended the law to remedy a serious and widespread public safety threat militates against the conclusion it also intended impliedly to include in the definition a scienter element especially burdensome to prove." (In re Jorge M., supra, 23 Cal.4th at p. 881.) We have found no case holding that general criminal intent is an element of a violation of Vehicle Code section 23153. (See e.g. People v. Weems (1997) 54 Cal.App.4th 854, 858 [elements]; see also People v. Capetillo (1990) 220 Cal.App.3d 211, 216 [same]; People v. Oyaas (1985) 173 Cal.App.3d 663, 667 [same]).)

In addition in this case, there was evidence of three Vehicle Code violations, namely failure to comply with the basic speed law (Veh. Code, § 22350), failure to stop at the limit line (Veh. Code, § 22450), and failure to comply with the mandatory seat belt law (Veh. Code, § 27315, subd. (d)(1).) Each of these offenses is certainly a public welfare offense not requiring proof of general criminal intent and defendant has not suggested otherwise.

Assuming the trial court erred in requiring general criminal intent as to both the charged offense and the lesser included offense of vehicular manslaughter while intoxicated, we nevertheless conclude that the instructional error was not prejudicial. The erroneous general intent instruction merely placed a greater proof burden on the prosecution. However, since there was no issue or defense regarding defendant's mental state at trial[3] and the jury's verdict indicates that it necessarily found defendant had general criminal intent, the challenged general intent instruction simply had no practical effect on the jury's decision to convict defendant of gross vehicular manslaughter while intoxicated rather than simple vehicular manslaughter while intoxicated.

The critical distinction between the charged offense of gross vehicular manslaughter and lesser offense of vehicular manslaughter as instructed was the degree of negligence required. The instructions clearly informed the jury of its option to convict defendant of simple vehicular manslaughter while intoxicated if it concluded that he had acted with ordinary rather than gross negligence and the definitions of those terms. The instructions did not, as defendant claims, place the jury in the situation of finding him guilty of gross vehicular manslaughter while intoxicated if it concluded that defendant had driven with gross negligence or not guilty of any offense if it concluded that defendant had driven with only ordinary negligence.

2. Effect of Imminent Peril on the Degree of Negligence

Defendant argues that evidence of an imminent peril may reduce gross negligence to ordinary negligence but the court's instruction on imminent peril failed to explain this. He asserts that this instructional omission deprived him of his due process right to fair consideration of the defense's theory of the case.

The court essentially gave the standard "imminent peril" instruction: "A person who, without negligence on his part, is suddenly and unexpectedly confronted with peril arising from either the act or presence of or the appearance of eminent [sic] danger to himself or others is neither expected nor required to use the same judgment and prudence that is required in the exercise of ordinary care in calmer and more deliberate moments. [¶] His duty is to exercise the care that an ordinarily prudent person would exercise in the same situation. If, at that moment, he does what appears to him to be the best thing to do and if the choice or manner of action are the same as might have been followed by any ordinarily prudent person under the same conditions, he just follows the law required of him. This is true, even though in the light of after events, it should appear that a different course would have been better and safer." (See former CALJIC No. 8.92.)

"In criminal cases, even absent a request, the trial court must instruct on general principles of law relevant to the issues raised by the evidence. (People v. Breverman (1998) 19 Cal.4th 142 . . . .)" (People v. Koontz (2002) 27 Cal.4th 1041, 1085.) A "trial judge has a duty to instruct as to defenses ' "that the defendant is relying on . . . , or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case." ' (People v. Breverman (1998) 19 Cal.4th 142, 157 . . . .)" (People v. San Nicolas (2004) 34 Cal.4th 614, 669.) Additional pinpoint instructions, which "relate particular facts to a legal issue in the case or 'pinpoint' the crux of a defendant's case," "are required to be given upon request when there is evidence supportive of the theory, but they are not required to be given sua sponte." (People v. Saille (1991) 54 Cal.3d 1103, 1119; see People v. San Nicolas, supra, 34 Cal.4th 614, 669 ["the burden falls on the defendant to request a 'pinpoint' instruction"].)

In this case, defense counsel argued in closing argument that the prosecution had failed to prove beyond a reasonable doubt that defendant was the driver. Defense counsel also asserted that the negligence, if any, was ordinary negligence given the vehicle's low speed and simple inadvertent failure to stop at a stop sign. Despite evidence that defendant had indicated after the accident that another driver had forced them off the road, the defense did not argue that defendant had acted with ordinary negligence in responding to a sudden emergency caused by another driver.

Furthermore, the doctrine of imminent peril is not a true criminal defense but an explication of the standard of care in the context of a sudden emergency. (See Leo v. Dunham (1953) 41 Cal.2d 712, 714.) The court instructed the jury to consider what a reasonably prudent person would do under comparable circumstances in assessing the objective reasonableness of defendant's conduct and the extent of any departure from the standard of reasonable care. Whether defendant was suddenly confronted with a sudden emergency or imminent peril while driving was a question of fact for the jury and one of the circumstances the jury could consider in evaluating the degree of negligence under the instructions given. The trial court had no duty to instruct sua sponte with a pinpoint instruction explaining that evidence of an imminent peril could be considered in determining the degree of any negligence.

3. Reasonable Doubt Regarding Degree of Negligence

Defendant argues that the version of former CALJIC No. 17.10 given in this case was "confusing and deficient" because the instruction "failed to instruct the jury on how it should have properly considered the issue of the lesser included offense." In support, he cites People v. Dewberry (1959) 51 Cal.2d 548 and People v. Reeves (1981) 123 Cal.App.3d 65, disapproved on another ground in People v. Sumstine (1984) 36 Cal.3d 909, 919, footnote 6. He maintains that a "special Dewberry instruction was needed here to clarify the jury's method of decid[ing] which type of crime [he] committed."

He specially argues that the court should have told the jury that, if it determined he was the driver at the time of the accident, it should then consider the level of his negligence and resolve any reasonable doubt as to which offense was committed in favor of the lesser offense involving ordinary negligence. He asserts that such a Dewberry type instruction was especially important in this case because the level of negligence was a secondary issue, the primary issue being whether he was the driver, and, consequently, the jury was likely to treat this secondary issue dismissively without further instruction.

Defendant maintains that "[w]ithout a clear instruction in line with Dewberry and Reeves, [the] jury most probably confused the two issues" whether he was the driver and whether he had acted with gross or ordinary negligence. He contends that the alleged instructional error requires reversal under the Watson standard of review (People v. Watson, supra, 46 Cal.2d at p. 836) "because it is reasonably probable that if the jury was told that conviction of the lesser offense is required in the case of a reasonable doubt on the greater, the jury would have found [him] guilty of simple rather gross vehicular manslaughter."

In Dewberry, a murder prosecution in which the defendant was convicted of second degree murder, the California Supreme Court confirmed the rule that "when the evidence is sufficient to support a finding of guilt of both the offense charged and a lesser included offense, the jury must be instructed that if they entertain a reasonable doubt as to which offense has been committed, they must find the defendant guilty only of the lesser offense." (People v. Dewberry, supra, 51 Cal.2d at p. 555.) The court observed that "the principle of reasonable doubt applies not only between first and second degree murder but also between second degree murder and manslaughter." (Id. at p. 557.) It determined that "[t]he failure of the trial court to instruct on the effect of a reasonable doubt as between any of the included offenses, when it had instructed as to the effect of such doubt as between the two highest offenses, and as between the lowest offense and justifiable homicide, left the instructions with the clearly erroneous implication that the rule requiring a finding of guilt of the lesser offense applied only as between first and second degree murder." (Ibid.) It held that the trial court had erred by refusing to give the defendant's proposed instruction, which "went directly to the defense of reasonable doubt of defendant's guilt of second degree murder . . . ." (Ibid.)

In Reeves, supra, 123 Cal.App.3d 65, a burglary case, an appellate court agreed that the trial court had a duty to give a Dewberry instruction sua sponte and the jury should have been instructed "to consider the charged offense and any lesser offense together, and, if a reasonable doubt arose as to which offense was committed, should have convicted the defendant of the lesser offense only." (Id. at p. 70.) Nevertheless, the appellate court found the error harmless under the Watson standard of review (People v. Watson, supra, 46 Cal.2d at p. 836) partly because the court had given former CALJIC No. 17.10 and instructed that the burglary must be proved beyond a reasonable doubt for a guilty finding.[4] (Ibid.)

Others courts have subsequently concluded, contrary to Reeves, that failure to give a Dewberry instruction is not error where other instructions, such as former CALJIC No. 17.10, effectively inform the jury to convict of a lesser offense if it entertains a reasonable doubt as between greater and lesser offenses or degrees of an offense. (See People v. Barajas (2004) 120 Cal.App.4th 787, 793-794 [former CALJIC No. 17.10 satisfies Dewberry; trial court not required to also give former CALJIC No. 8.72]; People v. Musselwhite (1998) 17 Cal.4th 1216, 1263 [although no specific reasonable doubt instruction with respect to attempted murder and assault with a deadly weapon, instruction requiring jury to adopt that interpretation which points to the absence of the specific intent or mental state if evidence was susceptible of two reasonable interpretations satisfies Dewberry]; People v. Gonzalez (1983) 141 Cal.App.3d 786, 793-794 [former CALJIC No. 17.10 satisfies Dewberry], disapproved on anther ground in People v. Kurtzman (1988) 46 Cal.3d 322, 330; People v. St. Germain (1982) 138 Cal.App.3d 507, 520-522 [same].)

As to the order of jury deliberations, the California Supreme Court has not established a rule that juries must consider greater and lesser offenses together rather than sequentially. The California Supreme Court determined, subsequent to Reeves, that "a court may restrict a jury from returning a verdict on a lesser included offense before acquitting on a greater offense, but may not preclude it from considering lesser offenses during deliberations. (People v. Berryman, supra, 6 Cal.4th at p. 1073 . . . ; People v. Kurtzman (1988) 46 Cal.3d 322, 324-325 . . . .)" (People v. Dennis (1998) 17 Cal.4th 468, 536.) "Thus, a trial court should not tell the jury it must first unanimously acquit the defendant of the greater offense before deliberating on or even considering a lesser offense. (People v. Kurtzman, supra, 46 Cal.3d at pp. 328, 335 . . . .)" (Ibid.) A trial court correctly guides a jury when it instructs the jury that it can deliberate in any order it wishes but must determine guilt in a certain order, specifically it must acquit of the greater offense before returning a verdict on a lesser included offense. (See People v. Wharton (1991) 53 Cal.3d 522, 573; People v. Hernandez (1988) 47 Cal.3d 315, 352; People v. Kurtzman, supra, 46 Cal.3d 322, 336.)

In this case, the trial court instructed regarding the presumption of innocence and the definition of reasonable doubt. The court also told the jury: "[A] finding of guilty as to any crime may not be based on circumstantial evidence unless the proved circumstances are not only consistent with the theory that the defendant is guilty of the crime but cannot be reconciled with any other rational conclusion. [¶] Further, each fact which is essential to complete a set of circumstances necessary to establish the defendant's guilt must be proved beyond a reasonable doubt. In other words, before an inference essential to establish guilt may be found to have been proved beyond a reasonable doubt, each fact or circumstance on which the inference necessarily rests must be proved beyond a reasonable doubt. [¶] Also, if the circumstantial evidence permits two reasonable interpretations, one of which points to the defendant's guilt and the other to his innocence, you must adopt that interpretation that points to the defendant's innocence and reject that interpretation which points to his guilt."

The trial court further instructed pursuant to former CALJIC No. 17.10: "If you are not satisfied beyond a reasonable doubt the defendant is guilty of the crime charged you may, nevertheless, convict him of any lesser crime if you are convinced beyond a reasonable doubt that the defendant is guilty of the lesser crime. The crime of vehicular manslaughter while intoxicated in violation of Penal Code Section 192 sub (c) sub (3) is lesser to that of gross vehicular manslaughter while intoxicated in violation of Penal Code Section 191.5 as charged in Count 1. [¶] Thus, you are to determine whether the defendant is guilty or not guilty of the crime charged in Count 1 or of any lesser crime. In doing so you have discretion to choose the order in which you evaluate each crime and consider the evidence pertaining to it. You may find it productive to consider and reach a tentative conclusion on all charges and lesser crimes before reaching any final verdict. However the Court cannot accept a guilty verdict on a lesser crime, in this case Penal Code Section 192 sub (c) sub (3), unless you have unanimously found the defendant not guilty of the charged offense, which is Penal Code Section 191.5."

"Jurors are presumed to be intelligent, capable of understanding instructions and applying them to the facts of the case." (Conservatorship of Early (1983) 35 Cal.3d 244, 253].) The jurors as instructed in this case clearly knew that they must give defendant the benefit of any reasonable doubt in reaching its verdict and must convict defendant of the lesser vehicular manslaughter offense if they had reasonable doubt as to whether the negligence was ordinary or gross. In addition, the instructions correctly stated the law regarding the order of jury deliberations. No further Dewberry type of instruction was required here.

4. No Cumulative Instructional Error

Defendant argues that the combined effect of the alleged instructional errors deprived him of his due process right to a fair trial and reversal is required even if no

single error would justify reversal. This contention is meritless since this court has not found multiple errors.

The judgment is affirmed.

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ELIA, J.

WE CONCUR:

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PREMO, Acting P. J.

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DUFFY, J.

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[1] All further statutory references are to the Penal Code unless otherwise specified. "Gross vehicular manslaughter while intoxicated is the unlawful killing of a human being without malice aforethought, in the driving of a vehicle, where the driving was in violation of Section 23140, 23152, or 23153 of the Vehicle Code, and the killing was either the proximate result of the commission of an unlawful act, not amounting to a felony, and with gross negligence, or the proximate result of the commission of a lawful act which might produce death, in an unlawful manner, and with gross negligence." (§ 191.5, subd. (a).) Vehicle Code section 23140 makes it unlawful to drive a vehicle a while under the age of 21 with a blood alcohol concentration of 0.05 percent or more. Vehicle Code section 23152 makes it unlawful to drive a vehicle while under the influence of any alcoholic beverage (Veh. Code, § 23152, subd. (a)) and to drive a vehicle with a blood alcohol concentration of 0.08 percent or more (Veh. Code, § 23152, subd. (b)). Vehicle Code section 23153 makes it unlawful to drive a vehicle while under the influence of any alcoholic beverage and "concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver." (Veh. Code, § 23153, subd. (a).) It also makes it unlawful to drive a vehicle with a blood alcohol concentration of 0.08 percent or more and "concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver" (Veh. Code, § 23153, subd. (b)).

[2] In Colautti v. Franklin, supra, 439 U.S. 379, the U.S. Supreme Court reiterated that "as a matter of due process, a criminal statute that 'fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute,' [citation], or is so indefinite that 'it encourages arbitrary and erratic arrests and convictions,' [citation], is void for vagueness. [Citation.]" (Id. at pp. 390-391.)

[3] Voluntary intoxication does not negate general criminal intent. (See § 22, People v. Hood (1969) 1 Cal.3d 444, 458-459) "[V]oluntary intoxication, even if it induced unconsciousness, is not a defense to crime as such, though it may be relevant to whether the defendant formed a specific intent necessary for its commission. [Citations.]" (People v. Boyer (2006) 38 Cal.4th 412, 469.)

[4] In Reeves, the trial court instructed in accordance with former CALJIC No. 17.10: " 'If you are not satisfied beyond a reasonable doubt that the defendant is guilty of the offense charged, he may, however, be found guilty of a lesser offense, if the evidence is sufficient to establish his guilt of such lesser offense beyond a reasonable doubt. The offense of burglary with which the defendant is charged has a lesser not included offense of trespass to land to interfere with business.' " (People v. Reeves, supra, 123 Cal.App.3d at pp. 69-70.) The trial court also instructed: " 'And I've instructed you if you have a reasonable doubt whether the defendant is guilty or not guilty of burglary, then of course it would be your duty to find him not guilty of burglary. You may then consider the second verdict form and decide whether or not he is proved guilty beyond a reasonable doubt of that crime as I have instructed you. If you find that the evidence is insufficient there, mark that one not guilty and bring them both back with you. Obviously, if you find the defendant guilty of burglary, do not even consider the lesser offense, just forget about it and bring the verdict form back in.' " (Id. at p. 70.)