P. v. Ramey

Filed 10/28/08 P. v. Ramey CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Tuolumne County. Eric L. DuTemple, Judge.

Deanna F. Lamb for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and John G. McLean, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Appellant Lisa Jane Ramey was convicted of count I, gross vehicular manslaughter while intoxicated (Pen. Code,  191.5, subd. (a)); count II, vehicular manslaughter with gross negligence (Pen. Code,  192, subd. (c)(1)); and count III, leaving the scene of an accident (Veh. Code,  20001, subd. (a)), with enhancements as to counts I and II for leaving the scene of the accident (Veh. Code,  20001, subd. (c)), and was sentenced to nine years in state prison. She has filed a timely notice of appeal.

Appellant contends the court should have admitted her hearsay statements and improperly modified the causation instruction. The parties agree count II must be reversed as a lesser included offense of count I and that a restitution order must be stricken. We will modify the abstract pursuant to the parties agreement and otherwise affirm.

FACTS

At 1:57 a.m. on August 25, 2006, appellant called 911 and requested an ambulance for a man in the middle of Railbed Road in Jamestown. Appellant said the man was her friend and he was bleeding and hes laying there. The operator asked what happened, and appellant said, Um Im not sure but I was just coming down to the store hes in the middle of the road. She identified herself, and said the man was Erick Kays. Appellant said, Yes I was just hangin out at a store, and he was lying pretty close to her house on Railbed Road. The operator asked where the victim was bleeding from. Appellant said, Well Im not sure I just noticed him laying in the middle of the road and I came down here. And hes moaning and groaning. The operator asked whether the victim had been assaulted and appellant said she did not know. Appellant said she lived on Railbed Road with her father. The operator asked why she did not make the 911 call from her house. Appellant said she did not want to wake her father. The operator asked, Okay and you dont know what happened to him, at all? Appellant replied, Right.

At approximately 1:58 a.m., Tuolumne County Sheriffs Deputy Victor Serrano, Jr., was dispatched to Railbed Road and found appellant standing over Kays, who was lying roughly in the middle of the road. Kays was unconscious and bleeding badly from his head and ears, his eyes were swollen shut, and his breathing was labored.

Deputy Serrano called for an ambulance and asked appellant what happened to Kays. Appellant said she did not know. Serrano asked appellant why she had driven someplace else to call for help, when the victim was lying in front of her house. Appellant said she did not want to wake up her father and get him involved. Serrano again asked what happened to the victim, and appellant said she just found him like that when she drove up.

The headlights from Serranos patrol car illuminated the scene, and Serrano observed two skid marks that went right around [the victims] body, possibly indicating that the victim had been run over. The tire marks were not skid marks per [se], just swerve marks. While there was a pool of blood from the victims body, there were no tire marks in the blood or in the victims urine.

Deputy Serrano believed that someone might have run over the victim, and asked Deputy Gempler to examine appellants vehicle, a 2002 Toyota Prius, to determine if it had been involved in a collision. As Serrano walked away from appellant, she said that she needed to tell him something. Appellant said: Ive got to be honest with you. He was hanging off the car and he wouldnt let go.

As officers from the California Highway Patrol (CHP) arrived to investigate the scene, appellant waited with Serrano. She was very upset, crying, and shaken up. She started talking to Serrano but he told her to wait for a detective. She kept talking, however, and cried intermittently as she spoke to Serrano. Appellant said that she had been trying to break up with Kays for about four months. They argued that night about something Kays discovered on a tape recorder. Appellant said she attempted to leave but Kays came out into the driveway of her house and jumped on her car. She moved the car in forward and reverse, trying to get Kays off the car, but did not succeed. Appellant said she became angry and told Kays, Youre going to get it now, but she did not know why she said that. Appellant said she could see Kays in her rearview mirror, and he was sitting on her trunk and facing backwards. She pulled out of her driveway and into Railbed Road, and she swerved the car to get Kays off the trunk. She looked up and did not see Kays in the rearview mirror anymore, so she felt relieved that the situation was over. Appellant said she drove to a friends house in Jamestown, stayed for about an hour, and then drove home and found appellant on the road. She drove to the store and called 911. Serrano asked appellant why she lied about the incident, and appellant replied she was scared and she didnt mean for that to happen.

Officer Michael Buller arrived at the scene at 3:00 a.m. and spoke to appellant, who was standing next to a patrol car. Appellant was cooperative, talkative, and excited. Buller asked appellant what happened. Appellant started babbling so quickly and talking so fast, I couldnt understand her. Buller asked her to start with what had happened since noon that day. Appellant said she had been at the house with her boyfriend, Kays, and they had been drinking and fighting. Buller asked her what happened next, and Buller testified to the following exchange.

And she says, Well, I decided I had enough of that crap, so Im going to leave. And she says, Then my boyfriend ran out, jumped on the trunk lid of the car.

And I said, What did you do?

She says, I told him to get off.

I said, Okay, what did you do next?

And she says, I got in my car and started down the driveway.

I go, With him on the back?

And she goes, Yes, but I was telling him to get off.[]

And I said, Okay. Then what happened?

She goes, I got down to the bottom of my driveway-- and she goes I stopped and told him to get off. She goes, I just wanted him to get off, and he wasnt getting off.

And I said, Okay. What happened next?

And she goes, Well, I told him, get off. And she goes, And I turned onto the street. And I looked in my rearview mirror one time, he was still back there. And I just wanted to get him off. And the next time I looked in my rearview mirror, he wasnt there.

And I said, What happened next?

Well, then I drove to my girlfriends house and drunk some more.

Officer Buller observed tire friction marks on the roadway, which he believed were consistent with acceleration marks based upon the shape. He pointed out the marks to appellant and said, It looks to me like you got him off your car. Officer Buller noticed that a section of the tire friction marks were in the dirt and realized the car went off the road at some point. Appellant did not say anything else about the incident.

Officer Buller testified the tire friction marks were two S shaped lines in the center of the road, which also extended into the dirt shoulder. There was a scrape mark on the pavement where something hit the ground. The tire friction marks were five feet wide when measured from center to center. Buller testified the shape of the marks indicated they were acceleration marks.

Officer Buller determined a vehicular accident did not occur and explained that when a pedestrian is hit by a vehicle, debris is normally found at the point of impact. Such debris may consist of dirt from underneath the vehicle, broken glass, or grill pieces. Buller did not find any debris at the scene. There was a pool of blood on the pavement where the victim was found. There were no tire or skid marks either within or around the blood pool, which would have indicated that another vehicle drove through that area. Buller testified the scene was consistent with appellants descriptionthat Kays was on the trunk and she wanted him off the vehicleand there was nothing to indicate that anyone had been hit by another car. Railbed Road is a dead-end road, and only one civilian vehicle appeared during the two hours and 15 minutes that the officers investigated the scene.

Just after 3:00 a.m., Officer Eli Dillon spoke to appellant at the scene and observed her eyes were red and watery and there was a strong odor of an alcoholic beverage coming from her person. Dillon asked appellant if she had been drinking. Appellant said she had shared or split a pint of vodka, but did not say who she split it with. Appellant said she had driven from her fathers house and she was just trying to get away. Appellant said she started drinking around 1:00 a.m. and stopped around 2:00 a.m. She said she had three or four shots of vodka after the accident.

Officer Dillon administered breath tests at the scene and appellants blood-alcohol levels were .100 percent and .102 percent. At 3:22 a.m., Dillon again administered a breath test and her blood-alcohol level was .09 percent. Dillon determined appellant was under the influence of alcohol and unable to safely operate a motor vehicle.

Deputy Deborah Moss transported appellant to the sheriffs department and interviewed appellant for about one hour.^[1] Detective Moss testified she did not see any symptoms indicating appellant was under the influence of methamphetamine.

Kays was transported by helicopter to a Modesto hospital. He had suffered a closed head injury, he was unresponsive, and there was fluid draining out of his left ear. Kays died the next morning. The pathologist determined the cause of death was craniocerebral injuries and blunt left chest trauma. Kays suffered external and internal trauma primarily on the left side, internal injuries to his head and left chest, and swelling and discoloration around both eyes. There were several head fractures, with the main point of impact being over the left temple. This fracture radiated out into the base of the skull and the top of the head. The fractures resulted in discoloration of the eyes and hemorrhage within the ears.

The pathologist testified that Kays head injuries gave rise to massive damage to both temporal lobes of the brain, in a coup-contre-coup effect, also described as blow counter blow, which meant the brain, being soft, once there is an impact on one side, it is transferred to the other side. The coup-contre-coup injury was consistent with the victims head striking either a solid surface or a flat object after a fall, which resulted in the internal and external injuries to the left side. The pathologist could not determine if the victim was sitting or standing before he fell. The victim did not suffer any broken bones in his lower extremities, and his injuries were not consistent with someone who was stationary or standing, and either hit or run over by a vehicle.

Appellants vehicle was examined and there was no evidence it had run over or hit a person. The entire car was covered by a light layer of dust, but there was a void in the dust on the top of trunk and back window, consistent with someone having jumped on the back of the car. The victims fingerprints were found on the trunk and under the rear spoiler, as if someone had sat on the trunk and held onto the spoiler, with the persons back toward the rear window. Appellants fingerprints were on the drivers door.

Kays had a blood-alcohol level of .13 percent, and there was methamphetamine and amphetamine in his system. In calculating what Kays and appellants blood alcohol levels likely were at 12:30 a.m., a criminalist testified that based on the circumstances of the case, someone of the victims size would have had a blood-alcohol level of .19 percent at 12:30 a.m., and someone of appellants size would have had a level of .15 percent at that time. The use of methamphetamine with alcohol would have further impaired a persons abilities.

Officer Robert Krider, an investigator with the CHPs multidisciplinary accident investigation team, testified the accident scene was not consistent with the victim being hit or run over by another vehicle, there was no debris or dirt on the victim from another vehicle, and there was no evidence that the victim hit anything other than the roadway. Instead, the evidence was consistent with the victims being injured by falling off a car.

Defense Evidence

Appellant did not testify. Barbara Machado, appellants neighbor, testified she saw appellant at various times between 4:30 p.m. and 7:15 p.m. They chatted and hugged, and Machado did not smell alcohol on appellants body or breath.

A toxicologist testified the victims blood-alcohol levels indicated recent use of methamphetamine but that he was not a chronic user. The combination of alcohol and drugs would have resulted in an individuals being somewhat confused, aggressive or violent, and more depressed.

Dr. Richard Robertson, a biomechanics expert, testified the victim could not have suffered such serious injuries by falling off the back of a car, and tumbling and rolling, because the forces would have been too low. Instead, the victim could have been hit by another car, and such an incident would have resulted in the coup-contre-coup brain injuries. Dr. Robertson believed the victim was more likely sitting in the road when he was hit by another vehicle. On cross-examination, Dr. Robertson was asked if there would have been dirt or grease on the victim from the bottom of the second car. Dr. Robertson conceded such a question was outside his field of expertise. He also conceded there was no evidence the victim was hit in the lower extremities.

Peter Rast, a forensic engineer specializing in accident reconstruction, testified that some but not all of the victims injuries were consistent with falling off a vehicle. He estimated appellants vehicle was going 28 to 30 miles per hour when the victim fell off and hit the ground. Rast examined the skid marks and noted Officer Bullers estimate that the tire tracks were five feet wide. Rast pointed out that the track width of appellants Prius was 58 inches, such that the skid marks were probably not made by a Prius. Rast testified that if the skid marks were made by appellants car, the victim should have ended up on the east side of the road. Instead, he was found on the west side so that he was likely hit by another car, which swerved to miss something in the road and hit the victim.

On cross-examination, Rast was asked about Officer Bullers measurements of the width of the tire tracks, which were rounded to the nearest foot, and conceded that he might have been wrong when he concluded the swerving car was not a Prius.

Appellant was interviewed at 4:45 a.m. on August 25, 2006, and the DVD of a portion of that interview (pages 1-4) was played for the jury. In that portion of the interview, appellant gave her name, age, weight, and height, and said she was driving her fathers car. Appellant said she tried to get away from an argument, and Kays went homeless a few months earlier.

Rebuttal

Detective Moss testified that when she conducted the videotaped interview with appellant, Moss could smell alcohol on appellant and her eyes were bloodshot and a little watery. Moss conceded appellant was crying during the interview, which could account for her bloodshot eyes.

DISCUSSION

I. Admissibility of Appellants Statement

Appellant did not testify but sought to introduce the entirety of the videotaped interview conducted by Detective Moss. The court allowed appellant to introduce a very limited portion of the interview and found the balance was inadmissible hearsay and untrustworthy. Appellant contends the court should have admitted the entirety of the videotaped interview and that it was admissible pursuant to hearsay exceptions or as the nonhearsay basis for the opinions of defense experts.

Appellants videotaped interview

As we have previously noted, appellant made several statements at the scene. She was subsequently transported to the sheriffs department. At 4:45 a.m., Detective Moss interviewed appellant for about one hour, and the interview was videotaped. In the course of that interview, appellant said she had a rocky relationship with Kays, they had been drinking since noon or 1:00 p.m., and Kays drank more than she did. Appellant and Kays made love, appellant wanted to stop, and Kays became angry. He found a tape-recorded statement she had made several months earlier about their relationship, he listened to it, and he became angry about what she said.

Appellant said she did not want to put up with Kays because he was furious. Put the two together and and hes gonna just I dont know the words. Um, instead of him bein all romantic so to speak and now hes turned into hes pissed off. He was letting it go. If I was gonna do it. I guess. But . . . I wasnt feelin up to it hes gonna let me have it. If that makes sense. Thats how I see it. Appellant said there had been prior physical confrontations between them, and each blamed the other as being the aggressor.

Appellant said she decided to leave. She headed to the car but Kays was in the doorway, and he was like, youre not leavin. I says, yes I am. I dont wanna fight. And now look at what it turned into. Appellant said she was trying to avoid a fight. Kays jumped on the car, and I wasnt gonna let him stop me I wasnt gonna get hurt. Kays sat on the trunk with his back against the rear window. Appellant tried to get into the car and found him there, and I felt like theres no escape. So I get in the car escaping Im thinkin Im getting outta here. Appellant then said that Kays did not get on the car until I was already turned around or whatever. Appellant asked Kays to get off the car and he refused. Appellant said she was trying to avoid a fight but he would not let her go, [s]o he hopped on the car I was like Im not gonna take this.

Appellant said she stopped the car and asked him to get off. Appellant put the car in forward and then in reverse, [t]hinkin hed hop off, but I was goin gentle you know. Appellant again told him to get off but Kays still sat on the car. She did not want to get out of the car because who knows whats gonna happen. She did not want to sit in the car all night and decided to leave, and so I hit the road and I didnt mean for the impact that happened that happened at all. Appellant said she drove normal but she just wanted him off the car. And yeah I probably drove different than I usually do but didnt mean for the impact that he got at all. She looked in the rearview mirror; she initially saw Kays, but I could tell at a certain point he wasnt there. And alls I thought of was I got away, relief, thank you. She accelerated, swerved, drove off the road a little bit, and she did not see him on the ground.

Appellant said she drove to a friends house, stayed there for awhile, and drank a couple of shots of vodka. Appellant drove home about 90 minutes later and found Kays lying on the road. She drove to a pay telephone and called for help because she did not want to bother her father. She ran back to Kays and he was unconscious.

Appellant said she never intended for Kays to be hurt. She knew it was stupid to drive while he was on the car but he had done it before. On the hood. Where I could get a full view. Youre not leavin here Im like please stop Im just tryin to avoid something, so much for that. She left because she did not want to fight him. She did not call the sheriffs department about the victims confrontation because we fight all the time. She was afraid because appellant was just mad. And there was no reason for it. Hes pushed me around before. I was just trying to avoid any fight.

The trial courts ruling

Appellant sought to introduce the entirety of her videotaped statement under several different theories. She argued it was admissible under the state-of-mind exception to the hearsay rule, as to how the incident occurred and how she viewed the accident. She also argued it was admissible to show her demeanor and degree of intoxication. Appellant further argued the statement was admissible as a declaration against interest.

The court heard extensive argument on the admissibility of the statement and denied appellants motion for several reasons:

[T]he defense offered the statement on three specific areas.

One was offering it as an exception to the hearsay [rule] as a statement as to theattempting to prove the state of mind as to the defendant, as to the perceptionher perception of how the events occurred. The Court previously denied that, and for the record, the Court does not find any basis to allow it in under that exception of the hearsay rule.

First off, the Court did not find any state of mind that was relevant to the issues before the Court. The Court also read the transcript, and did not find the actual statement particularly trustworthy. It seemed to me that [appellant] tried, throughout the course of her statement, to minimize her responsibility, and changed her version of how the events occurred with regard to the victim coming off of the vehicle on several occasions, and was comforted by that. I just didnt find the circumstances surrounding the statement lent itself to a belief that it was particularly trustworthy for that reason.

The other issues that were offered, one was a declaration against penal interest. I asked Counsel to review that, and we discussed it more this morning.

And the last issue was theoffering it as evidence to impeach the officers opinion based on his observations of [appellant] somewhat close in time as to [appellants] sobriety. I dont think we have time to go on the record about that now because Counsel will have to address that issue and the Court will have to rule on it.

The court addressed appellants alternative argument, that her videotaped account of the interview was admissible because it served as part of the basis for the opinion of the defense experts as to how the victim suffered his injuries. The court said it would not admit a statement that is somewhat unreliable into evidence through the back door via an experts opinion. Defense counsel wanted to introduce appellants statement that she stopped the car prior to pulling onto Railbed Road. The court replied that such a statement had already been introduced into evidence based upon appellants statements at the scene to the law enforcement officers.

The court subsequently returned to appellants claim that her videotaped statement was admissible as a declaration against penal interest.

For the record, the Court has reviewed the D.V.D. With regard to the issue of penal interest, the Court believes that the statement does not come in, her statement against penal interest, for a number of reasons. One, I think its required that the witness be unavailable. And I dont believe the section would allow the party offering a statement to exercise the privilege and thenask to have the Court deem a person not be available and then offer a hearsay statement in for that purpose.

Also, as Ive indicated before, the Court has concerns about its reliability. And I also have some concern, after having read the statement several times and now reviewed the tape, that there really wasthat [appellant] really had an understandingor that a person in those circumstances would just know that their statements were subject to criminal prosecution because of the nature of the statement. Really seemed to bein the majority of that statement, would be exculpatory in an attempt to avoid responsibility. Thats the Courts view of it.

The Court is not inclined to let it in under statement against penal interest.

The court turned to appellants final argument, that the videotaped interview was admissible to impeach the officers testimony that appellant was under the influence of alcohol. The court decided to allow appellant to play the portion of the videotape that corresponded to the first four pages of the transcript, to give the jury the opportunity to see what she looked like and how she responded to questions, which may have some slight probative value.

Analysis

Appellant contends the entire videotaped interview was admissible pursuant to the state-of-mind exception to the hearsay rule, as the basis for the opinions offered by the defense experts as to how the victim suffered his fatal injuries, to impeach the testimony of the law enforcement officers as to whether appellant was intoxicated, and under due process principles of the ability to present a defense.

The trial court is vested with broad discretion in determining the admissibility of evidence. (People v. Ortiz (1995) 38 Cal.App.4th 377, 386.) Under this standard, a trial court's ruling will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Guerra (2006) 37 Cal.4th 1067, 1113 (Guerra), disapproved in part on other grounds by People v. Rundle (2008) 43 Cal.4th 76, 151.)

The state-of-mind exception to the hearsay rule is codified in Evidence Code^[2]section 1250, subdivision (a), which provides: Subject to section 1252, evidence of a statement of the declarant's then existing state of mind, emotion, or physical sensation ... is not made inadmissible by the hearsay rule . . . . Under section 1252, a statement of the declarant's mental or physical condition is inadmissible if the statement was made under circumstances such as to indicate its lack of trustworthiness. (See People v. Escobar (2000) 82 Cal.App.4th 1085, 1103 (Escobar); Guerra, supra, 37 Cal.4th at p. 1114; People v. Romero (2007) 149 Cal.App.4th 29, 36-37.)

Accordingly, [a] defendant in a criminal case may not introduce hearsay evidence for the purpose of testifying while avoiding cross-examination. [Citation.] . . . To be admissible under Evidence Code section 1252, statements must be made in a natural manner, and not under circumstances of suspicion, so that they carry the probability of trustworthiness. Such declarations are admissible only when they are made at a time when there was no motive to deceive. [Citations.] (People v. Edwards (1991) 54 Cal.3d 787, 820 (Edwards).)

The decision whether trustworthiness is present requires the court to apply to the peculiar facts of the individual case a broad and deep acquaintance with the ways human beings actually conduct themselves in the circumstances material under the exception. Such an endeavor allows, in fact demands, the exercise of discretion. [Citations.] A reviewing court may overturn the trial court's finding regarding trustworthiness only if there is an abuse of discretion. [Citations.] (Edwards, supra, 54 Cal.3d at pp. 819-820.)

In the instant case, appellant made numerous statements in the 911 call and at the scene as to when she found the victim on the road and whether she had any idea that he was lying there. She told the 911 operator that she just found Kays on the road. She repeated this claim to Deputy Serrano, who ordered another officer to check appellants car to see if it had run over the victim. Appellant then changed her story and told Deputy Serrano and Officer Buller that the victim was hanging onto her car, she drove in forward and reverse to get him off, and she told him, Youre going to get it now. She knew he was off the trunk but claimed she had no idea he had fallen onto the road. Officer Buller pointed out the tire friction marks to her and noted, It looks to me like you got him off your car.

Appellant made the 911 call at 1:57 a.m., and spoke to Officer Buller at the scene at 3:00 a.m. At 4:45 a.m., Detective Moss interviewed appellant for about one hour at the sheriffs department. Appellant was not under arrest and was free to leave, but repeatedly minimized her responsibility and changed the sequence of how the incident occurred. She also claimed the victim had been physically abusive toward her in the past, and she was trying to avoid a physical confrontation by leaving her house and getting him off her car because she feared that he would resort to violence. While appellant was not under arrest, she was clearly aware that her conduct was subject to heightened scrutiny given the grievous nature of the victims injuries, and she had a compelling motive for misstatement and deception in the hopes of minimizing her culpability. It is entirely reasonable to conclude that, in these circumstances, appellant was not expressing her state of mind in a natural manner but under circumstances of suspicion, and there was an obvious reason for her to manufacture an expression of fear she did not feel. (See, e.g., Escobar, supra, 82 Cal.App.4th at p. 1104.)

The trial court did not abuse its discretion in finding appellants statement was not admissible under the state-of-mind exception to the hearsay rule. Self-serving statements by a declarant with a motive to deceive are deemed untrustworthy and inadmissible. (See, e.g., People v. Smith (2003) 30 Cal.4th 581, 629 [jailhouse statement of remorse] (Smith); Edwards, supra, 54 Cal.3d at pp. 819-820 [defendant's statement nine days after offense]; People v. Kaurish (1990) 52 Cal.3d 648, 705 [self-serving statement shortly after defendant's arrest]; People v. Cruz (1968) 264 Cal.App.2d 350, 352, 358 [exculpatory statement by defendant an hour after his arrest].) Appellant had a compelling motive to deceive and seek to exonerate [herself] from, or at least to minimize [her] responsibility for, how she operated the car with the victim on the trunk and why she left the scene. (Edwards, supra, 54 Cal.3d at p. 820.) There was ample ground to suspect [appellants] motives and sincerity when [she] made the statements. [Citation.] The need for cross-examination is especially strong in this situation, and fully warrants exclusion of the hearsay evidence. [Citations.] (Ibid.)

For the same reasons, we reject appellants federal constitutional claim. The United States Constitution compels the admission of hearsay evidence only if the proponent shows the evidence is highly relevant to a critical issue and is sufficiently reliable. [Citations.] (Smith, supra, 30 Cal.4th at p. 629.) The constitutional right to present a defense does not encompass the right to present inadmissible evidence. (People v. Cudjo (1993) 6 Cal.4th 585, 611; see also People v. Ayala (2000) 23 Cal.4th 225, 268-269 [defendant has no right to present unreliable hearsay evidence that is inadmissible under any statutory exception to hearsay rule].) The same lack of reliability that makes the statements excludable under state law makes them excludable under the federal Constitution. (People v. Livaditis (1992) 2 Cal.4th 759, 780; Smith, supra, 30 Cal.4th at p. 629.)

Appellants alternative arguments for admissibility are also meritless. As respondent notes, it is settled that expert testimony may also be premised on material that is not admitted into evidence so long as it is material of a type that is reasonably relied upon by experts in the particular field in forming their opinions, but any material that forms the basis of an expert's opinion testimony must be reliable. (People v. Gardeley (1996) 14 Cal.4th 605, 618.) So long as this threshold requirement of reliability is satisfied, even matter that is ordinarily inadmissible can form the proper basis for an expert's opinion testimony, including reliable hearsay. (Ibid., emphasis in original.) However, prejudice may arise if, under the guise of reasons, the expert's detailed explanation [brings] before the jury incompetent hearsay evidence. [Citation.] (People v. Montiel (1993) 5 Cal.4th 877, 918-919.)

Appellant reasserts the argument she raised below, that a portion of her videotaped statementthat she stopped her car prior to pulling onto Railbed Roadwas admissible to support the testimony of the defense experts. As noted by the trial court, however, such evidence was already before the jury through Officer Bullers testimony about her statements at the scene, where she claimed to have stopped her car at the bottom of her driveway and told the victim to get off her car. Appellant could not rely on the opinions of the defense experts to obtain admission of untrustworthy and unreliable hearsay statements, and the court properly excluded the videotaped interview on this basis.

Finally, appellant argues the videotaped interview was admissible to impeach the testimony of the officers as to her intoxication. This argument is also meritless since the court decided to allow appellant to play the portion of the videotape which corresponded to the first four pages of the transcript, to give the jury the opportunity to see what she looked like and how she responded to questions, which may have some slight probative value. In addition, Detective Moss testified she did not see any symptoms indicating appellant was under the influence of alcohol, but Moss smelled alcohol on appellant and her eyes were bloodshot and a little watery. Moss conceded appellant was crying during the interview, which could account for her bloodshot eyes.

We thus conclude the court did not abuse its discretion when it excluded all but a small portion of appellants videotaped interview as inadmissible and untrustworthy hearsay.

II. The Causation Instruction

Appellant next contends the court improperly modified CALCRIM No. 240, the causation instruction, to include contradictory language as to probable and possible consequences, and the modified instruction reduced the prosecutions burden of proof by confusing the jury as to whether a second vehicle ran over the victim and inflicted the fatal injuries.

Background

The prosecution requested the court to give CALCRIM No. 240 as to causation. In response to the proposed testimony of the defense experts--that the victim died after being hit by a second vehicle--the prosecution sought to add the following language to the pattern instruction from People v. Cervantes (2001) 26 Cal.4th 860, 871 (Cervantes).

A person may be criminally liable for a result directly caused by his or her act even if there is another contributing cause. If an intervening cause is a normal and reasonably foreseeable result of defendants original act the intervening act is dependent and not a superseding cause, and will not relieve the person of liability for the original act. 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 person should have foreseen the possibility of some harm of the kind which might result from his or her act.

The court noted that appellant wanted to eliminate the last two sentences in the prosecutions proposed modification (as italicized ante), and instead include the following language.

A person may not be criminally liable for a result indirectly caused by his or her act if there was another cause. If such an intervening act is so disconnected and unforeseeable so [as] to be a superseding cause of the injury, then the intervening act is independent and will relieve the person of liability for the original act.

The court decided that both statements were accurate statements of the law and denied appellants request to strike the italicized portion of the prosecutions proposed modification. However, it agreed to add appellants proposed language. Appellant objected and argued her proposed instruction was more to the point.

The jury was ultimately instructed on the following modification of CALCRIM No. 240. The normal print denotes the pattern instruction, the italicized print denotes the language requested by the prosecution, and the underlined print denotes the language requested by appellant:

An act causes injury or death if the injury or death 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 the circumstances established by the evidence.

There may be more than one cause of an injury or death. An act causes an injury or death only if it is a substantial factor in causing the injury or death. A substantial factor is more than a trivial or remote factor. However, it does not have to be the only factor that causes the injury or death.

A person may be criminally liable for a result directly caused by his or her act even if there is another contributing cause. If an intervening cause is a normal and reasonably foreseeable result of defendants original act, the intervening act is dependent and not a [superseding] cause, and will not relieve the person of liability for the original act. 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 person should have foreseen the possibility of some harm of the kind which might result from his or her act.

A person may not be criminally liable for a result indirectly caused by his or her act if there was another cause. If such an intervening act is so disconnected and unforeseeable so to be a [superseding] cause of the injury, then the intervening act is independent and will relieve the person of liability for the original act. (Italics and underlining added.)

Analysis

Appellant contends the modified version of CALCRIM No. 240 reduced the Peoples burden of proof on causation and shifted the jurys attention from considering probable consequences to possible consequences. Appellant argues the error resulted in the complete withdrawal of the defense theory of a second, phantom vehicle.

We review de novo whether the jury instructions given correctly stated the law. (People v. Posey (2004) 32 Cal.4th 193, 218.) The principles of proximate or legal causation apply to crimes as well as torts; as in tort law, the defendant's act must be the legally responsible cause of the injury, death, or other harm constituting the crime. (People v. Schmies (1996) 44 Cal.App.4th 38, 46-47.) The People have the burden of proving proximate cause, and may satisfy that burden by producing evidence from which it may be reasonably inferred that appellant's act was a substantial factor in producing the harm. (People v. Scola (1976) 56 Cal.App.3d 723, 726; People v. Caldwell (1984) 36 Cal.3d 210, 220.)

In homicide cases, a cause of the death of [the decedent] is an act or omission that sets in motion a chain of events that produces as a direct, natural and probable consequence of the act or omission the death of [the decedent] and without which the death would not occur. (See CALJIC No. 3.40.) (Cervantes, supra, 26 Cal.4th at p. 866, brackets in original.) To be considered the proximate cause of the victim's death, the defendant's act must have been a substantial factor contributing to the result, rather than insignificant or merely theoretical. [Citations.] (People v. Briscoe (2001) 92 Cal.App.4th 568, 583-584, fn. omitted.)

There may be more than one proximate cause of the death. When the conduct of two or more persons contributes concurrently as the proximate cause of the death, the conduct of each is a proximate cause of the death if that conduct was also a substantial factor contributing to the result. A cause is concurrent if it was operative at the time of the death and acted with another cause to produce the death. [Citation.] (People v. Sanchez (2001) 26 Cal.4th 834, 847, italics omitted, quoting People v. Mai (1994) 22 Cal.App.4th 117, 123, fn. 5.) Indeed, it has long been recognized that there may be multiple proximate causes of a homicide, even where there is only one known actual or direct cause of death. (People v. Sanchez, supra, 26 Cal.4th at p. 846.) A defendant may also be criminally liable for a result directly caused by his or her act, even though there is another contributing cause. [Citations.] (Cervantes, supra, 26 Cal.4th at pp. 866-867.) Thus, [t]he defendant is liable for a crime irrespective of other concurrent causes contributing to the harm [citation] . . . . Moreover, a superseding cause must break the chain of causation after the defendant's act before he or she is relieved of criminal liability for the resulting harm. (People v. Wattier (1996) 51 Cal.App.4th 948, 953, italics omitted.)

Intervening causes in criminal cases are typically described as either dependent or independent. A dependent intervening cause will not absolve a defendant of criminal liability while an independent intervening cause breaks the chain of causation and does absolve the defendant. [Citation.] (People v. Schmies, supra, 44 Cal.App.4th at p. 49, fn. omitted.) The criminal law thus is clear that for liability to be found, the cause of the harm not only must be direct, but also not so remote as to fail to constitute the natural and probable consequence of the defendant's act. (People v. Roberts (1992) 2 Cal.4th 271, 319.) Thus, [t]he defendant remains criminally liable if either the possible consequence might reasonably have been contemplated or the defendant should have foreseen the possibility of harm of the kind that could result from his act. (People v. Crew (2003) 31 Cal.4th 822, 847.) Of course the intervening act may be so attenuated, due to the passage of a significant period [of] time, that defendants act is no longer considered the proximate cause of the victims death, for at some point the required causal nexus would have become too attenuated . . . . [Citations.] (People v. Fiu (2008) 165 Cal.App.4th 360, 371, fn. 12.)

In Cervantes, the court extensively discussed and summarized the principles of causation, as set forth in previous cases, as follows:

In general, 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. [Citation.] [Citations.]

One commentary has described the rationale for finding the acts of a second party to be a remote, independent intervening (and superseding) cause in these terms: The free, deliberate, and informed intervention of a second person, who intends to exploit the situation created by the first, but is not acting in concert with him, is normally held to relieve the first actor of criminal responsibility. [Citation.]

[W]e [have] explained that there is no bright line demarcating a legally sufficient proximate cause from one that is too remote. Ordinarily the question will be for the jury, though in some instances undisputed evidence may reveal a cause so remote that a court may properly decide that no rational trier of fact could find the needed nexus. [Citations.] [Citation.] Perkins and Boyce suggest that, in the latter situation, The matters of policy which determine just where the limitations of juridical recognition shall be placed upon the broad field of actual cause, are grounded ... partly upon notions of fairness and justice.... (Perkins & Boyce [(3d ed. 1982)]  9, p. 776, fn. omitted.) (Cervantes, supra, 26 Cal.4th at pp. 871-872, italics added.)

As applicable to the instant case, the trial court herein started with CALCRIM No. 240, the pattern instruction for causation. CALCRIM No. 240 consists of language previously contained within CALJIC Nos. 3.40 and 3.41, and derived from Cervantes, and has been approved as correct statements of causation. (Cervantes, supra, 26 Cal.4th at p. 866; People v. Brady (2005) 129 Cal.App.4th 1314, 1328; People v. Fiu, supra, 165 Cal.App.4th 360, 371-373; People v. Temple (1993) 19 Cal.App.4th 1750, 1756; People v. Bland (2002) 28 Cal.4th 313, 334-335; see also 1 Judicial Council of California Criminal Jury Instructions (2008) CALCRIM No. 240 & notes fol., pp. 61-62; 2 Judicial Council of California Criminal Jury Instructions (2008) Table 2, TRI-12.)

The court modified the instruction pursuant to the requests of the prosecutor and appellant. While each party objected to the other partys proposals, the final version of the instruction essentially followed the legal principles set forth in Cervantes. Appellant complains that the court improperly interchanged probable and possible, but such language was derived directly from Cervantes and did not reduce the prosecutions burden of proof on the causation issue. Indeed, it was clear from the evidence, argument, and instructions that the jury was presented with the disputed issue as to whether the victim suffered the fatal injuries because of the manner in which appellant operated her car, threw him off the trunk, and left him on the road, or whether he slid off her car and was run over by a second vehicle. The resolution of this issue was dependent upon the expert testimony as to whether there was evidence of a second vehicle or whether the victims injuries were entirely consistent with being thrown off the trunk and hitting the pavement. The modified version of CALCRIM No. 240 correctly stated the principles of causation and did not reduce the prosecutions burden of proof.

III. Count II

Appellant contends, and respondent concedes, that she was improperly convicted of both count I, gross vehicular manslaughter while intoxicated (Pen. Code,  191.5, subd. (a)); and count II, vehicular manslaughter with gross negligence (Pen. Code,  192, subd. (c)(1)). The parties agree appellants conviction in count II must be stricken because it is a lesser included offense of count I.

IV. Restitution Order

The parties further agree that the court improperly ordered appellant to pay restitution of $920 to the Tuolumne County Department of Social Services, to reimburse the department for the victims burial expenses. Respondent concedes that the department was not a direct victim simply because it incurred the costs of the victims burial, and the order must be stricken.

DISPOSITION

Appellants conviction in count II and the restitution order to pay the Tuolumne County Department of Social Services are ordered stricken. We direct the trial court to modify the abstract of judgment accordingly. In all other respects, the judgment is affirmed.

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VARTABEDIAN, Acting P. J.

WE CONCUR:

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CORNELL, J.

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KANE, J.

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^[1]Appellant sought to introduce the entirety of her videotaped interview with Detective Moss, but the court excluded most of the interview as inadmissible hearsay, as will be discussed.

^[2]All further statutory citations are to the Evidence Code unless otherwise indicated.