Filed 2/6/18 P. v. Halverson CA3
NOT TO BE PUBLISHED

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(El Dorado)
----



THE PEOPLE,

Plaintiff and Respondent,

v.

LARRY LEE HALVERSON,

Defendant and Appellant.
C075996

(Super. Ct. No. S12CRF0096)





A jury convicted defendant Larry Lee Halverson of gross vehicular manslaughter while intoxicated, and leaving the scene of an accident. (Pen. Code, § 191.5, subds. (a) & (d); Veh. Code, § 20001, subds. (b)(1) & (c).) In connection with the vehicular manslaughter conviction, the jury found that defendant committed the following violations: driving on a suspended/revoked license, and driving in violation of license restrictions.
Defendant now contends (1) the vehicular manslaughter conviction must be reversed because there is insufficient evidence that the death was the proximate result of driving with a suspended license or driving in violation of his license restriction to wear corrective lenses; (2) the trial court did not properly instruct the jury on the causal connection between a driver’s unlawful acts and the death of a crash victim; (3) the trial court prejudicially abused its discretion when it excluded evidence of the victim’s blood alcohol content; (4) the trial court erred in limiting his presentence credit to 15 percent; and (5) the abstract of judgment references an inapplicable statute.
We will remand the matter to the trial court for recalculation of presentence credit and otherwise affirm the judgment. We will direct the trial court to amend and correct the abstract of judgment.
BACKGROUND
In anticipation of a public fireworks display at Lake Tahoe, cars and pedestrians made their way toward the event. Among the pedestrians was 51-year-old Patrick Purnell, a local resident. He crossed the northwest lane and centerline of a boulevard and then began to run in an apparent effort to avoid an oncoming vehicle. He had almost reached the curb when a small sport utility vehicle (SUV) collided with him. Purnell later died from his injuries.
The SUV did not slow or swerve before or during the collision and it continued along for two or three blocks afterward. The SUV returned to the scene after emergency personnel arrived, some ten minutes later.
Defendant told an insurance investigator he had been the driver of the SUV. He said the area was fairly well lit but he did not see Purnell until Purnell was suddenly on the hood of the SUV.
One of defendant’s coworkers testified that he observed defendant consuming several 40-ounce beers, some marijuana and two three-inch lines of cocaine that day. Another individual observed defendant at a party that afternoon drinking beer, asking where he might smoke marijuana, and smelling of marijuana smoke a few minutes later. A witness at the scene of the accident believed defendant had been drinking. An officer at the accident scene conducted field sobriety tests and concluded defendant was too impaired to drive safely.
Defendant pleaded guilty to driving with a suspended license based on a prior DUI conviction. (Veh. Code, § 14601.2, subd. (a) -- count VIII.) In addition, a jury convicted defendant of gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subds. (a) & (d); Veh. Code, §§ 23140, 23152, 23153 -- count II) in which the killing was the proximate result of an unlawful act (Veh. Code, § 21950). In connection with the count II manslaughter conviction, the jury found that defendant drove while his license was suspended or revoked (Veh. Code, § 14601.2, subd. (a)), drove in violation of a license restriction (Veh. Code, § 14603) and fled the scene of the accident (Veh. Code, § 20001, subd. (c)). Defendant admitted being nearsighted and admitted being required to wear corrective lenses to drive, but said he could not afford glasses. The jury also convicted defendant of felony leaving the scene of an accident. (Veh. Code, § 20001, subd. (b)(1) -- count VII.)
The trial court sentenced defendant to fifteen years to life in prison with an enhancement of five years for leaving the scene of the accident.
Additional facts are included in the discussion where relevant to the contentions on appeal.
DISCUSSION
I
Defendant contends the gross vehicular manslaughter conviction must be reversed because there is insufficient evidence that Purnell’s death was the proximate result of driving with a suspended license or driving in violation of defendant’s license restriction requiring him to wear corrective lenses. Defendant argues there was no evidence that driving without a license actually affected his driving ability and there was testimony he had worked and ridden a bicycle without glasses, so he must have been able to see pretty well without them.
A claim of insufficient evidence requires the appellate court to review the entire record in the light most favorable to the judgment and to determine whether “ ‘ ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” ’ ” (People v. Maury (2003) 30 Cal.4th 342, 403, quoting People v. Hatch (2000) 22 Cal.4th 260, 272.) We do not revisit credibility issues or evidentiary conflicts. (Ibid.)
Gross vehicular manslaughter 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 that might produce death, in an unlawful manner, and with gross negligence.” (Pen. Code, § 191.5, subd. (a).) There are three elements of gross vehicular manslaughter: “(1) driving a vehicle while intoxicated; (2) when so driving, committing some unlawful act, such as a Vehicle Code offense with gross negligence, or committing with gross negligence an ordinarily lawful act which might produce death; and (3) as a proximate result of the unlawful act or the negligent act, another person was killed.” (People v. Verlinde (2002) 100 Cal.App.4th 1146, 1159, disapproved on another ground in People v. Cook (2015) 60 Cal.4th 922, 939.)
The trial court instructed the jury consistent with CALCRIM No. 590, which tracks the elements of gross vehicular manslaughter and explains those elements. Among other things, the trial court instructed that there may be more than one cause of death, and an act causes death only if it is a substantial factor in causing the death. The trial court instructed that a substantial factor is more than a trivial or remote factor, but it does not need to be the only factor that causes the death. The trial court also instructed that the People have the burden of proving beyond a reasonable doubt that the defendant committed gross vehicular manslaughter while intoxicated. In addition, the trial court instructed the jury consistent with CALCRIM No. 240 regarding causation. We presume the jury followed those instructions.
Viewing the entire record in the light most favorable to the judgment, we conclude sufficient evidence supports the gross vehicular manslaughter conviction. Purnell died because he was hit by a vehicle defendant was driving. Defendant did not see Purnell until Purnell was on the hood of the vehicle. Defendant admitted that, given the conditions at the time of the accident, he should have been able to see Purnell. The driver in the car immediately following defendant’s SUV testified that he saw Purnell crossing the street in front of defendant from left to right and exclaimed to his passenger three times in succession, “ ‘Oh my God. He’s going to get hit.’ ” A reasonable jury could have concluded that defendant’s driving without the required corrective lenses was a substantial factor in his failure to see Purnell and his collision with Purnell.
Moreover, in People v. Jimenez (2015) 242 Cal.App.4th 1337, a defendant involved in a fatal accident had been driving while his license was suspended or revoked following a series of DUI convictions. The appellate court concluded that a rational jury could find beyond a reasonable doubt that a driver who had prior DUI convictions and had his license suspended or revoked could be presumed to know that driving after drinking or ingesting drugs is dangerous, thus a decision to drive while impaired and without a license demonstrated a conscious disregard for the safety of victims. (Id. at pp. 1358-1359.) Here, defendant had prior DUI convictions. A reasonable jury could have concluded that defendant’s choice to drive in direct violation of the statutory licensing requirement, especially after spending a day drinking and ingesting drugs, was a substantial factor in Purnell’s death.
II
In a related argument, defendant claims the trial court did not properly instruct the jury that it had to find that Purnell’s death was the proximate result of driving without corrective lenses or driving with a suspended or revoked license.
CALCRIM No. 590 correctly instructed the jury to consider relevant aspects of defendant’s conduct in determining whether defendant was grossly negligent, as expressly permitted in People v. Bennett (1991) 54 Cal.3d 1032, 1039. Nevertheless, defendant argues that allowing consideration of the level of defendant’s intoxication, the way he drove and any other relevant aspects of his conduct at the time of the collision in order to assess gross negligence was misleading because jurors may not have known the “unlawful act” that they found to be grossly negligent under Penal Code section 191.5 had to be an offense other than driving under the influence of alcohol and drugs. However, CALCRIM No. 590 said the People had to prove, among other things, that defendant drove while under the influence and that while driving under the influence, he also committed an infraction or misdemeanor with gross negligence. The jury was further instructed that “[t]o support a finding that defendant committed an infraction or misdemeanor with gross negligence . . . the circumstances of the violation and not the offense, must be dangerous to human life and safety.” The instruction said the combination of driving a vehicle while under the influence of alcohol or drugs and violating a traffic law was not enough to establish gross negligence. The instructions went on to describe the elements for each alleged Vehicle Code violation. We presume a jury is intelligent and able to understand and correlate the instructions provided by the trial court. (People v. Mills (1991) 1 Cal.App.4th 898, 918.) Together, the instructions were accurate and would not permit a reasonable juror to misconstrue how to apply the standards to the evidence.
III
Defendant also argues the trial court prejudicially abused its discretion when it excluded evidence of Purnell’s blood alcohol content. Although a treating physician testified that Purnell was experiencing alcohol withdrawal when he was admitted to the hospital following the collision, and the coroner testified Purnell was a chronic alcohol user, defendant contends that evidence was not enough: the trial court abused its discretion in excluding Purnell’s specific blood alcohol content, 0.33 percent.
Evidence is relevant if it has a “tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) Relevant evidence may be excluded if its probative value is substantially outweighed by the probability that its admission will either consume an undue amount of time or create a substantial danger of undue prejudice, confusion or misleading of the jury. (Evid. Code, § 352.) A trial court has broad discretion under Evidence Code section 352 to exclude evidence and our review is limited to determining whether that discretion was exercised in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Holford (2012) 203 Cal.App.4th 155, 167-168.)
Defendant argued in the trial court that evidence of Purnell’s blood alcohol content would allow the jury to consider the extent of Purnell’s poor judgment when he crossed the road in front of an oncoming car. But the question for the jury was whether defendant’s conduct was a substantial factor in Purnell’s death, a question the jury answered in the affirmative. It was no defense that Purnell’s conduct may have also been a factor. (People v. Bland (2002) 28 Cal.4th 313, 335.)
The trial court concluded the evidence of Purnell’s blood alcohol content was not relevant because it did not prove or disprove any fact of consequence. Defendant hoped to more forcefully argue that Purnell was at fault by darting out suddenly in front of defendant, leaving defendant no time to react. But witnesses testified that Purnell walked more than halfway across the road at a normal pace and only began to run when it appeared he would be hit, not that he darted out suddenly. And in any event, defendant never saw Purnell until after the collision.
Defendant argues Purnell’s blood alcohol content is relevant because a testifying officer initially believed the accident was Purnell’s fault and because one of the jurors said after the trial that the deliberation would have been affected if the jury had known Purnell’s level of intoxication. But there was evidence that Purnell was an alcoholic and defense counsel argued to the jury that Purnell caused the accident by crossing the road unsafely. The jury rejected that argument. Given the totality of the evidence, it is not reasonably likely that a reasonable jury applying the law would have concluded Purnell was solely responsible for the accident, and that defendant’s conduct was not a substantial factor, had the jury known Purnell’s blood alcohol content. The juror’s suggestion after trial that knowledge of Purnell’s blood alcohol content might have made a difference merely confirms that such evidence would have confused or distracted the jurors.
The exclusion of irrelevant or confusing evidence does not violate a defendant’s right to present a defense. (Holmes v. South Carolina (2006) 547 U.S. 319, 326 [164 L.Ed.2d 503, 510].) The trial court did not abuse its discretion in excluding the evidence of Purnell’s blood alcohol content.
IV
In addition, defendant claims the trial court erred in limiting his presentence credit to 15 percent.
In reliance on a probation officer’s report, the trial court awarded defendant only 15 percent of the credit he had earned. (Pen. Code, § 2933.1, subd. (a).) The probation officer mistakenly applied a statute that limits credit for persons convicted of violent felonies listed in Penal Code section 667.5. Murder and voluntary manslaughter are listed, but gross vehicular manslaughter is not. (Pen. Code, § 667.5, subd. (c).) Penal Code section 191.5 is not a violent felony to which the Penal Code section 667.5 limitation applies. (In re Pope (2010) 50 Cal.4th 777, 780.) The Attorney General agrees that defendant was entitled to the full amount of credit against his sentence, not the restricted amount for persons convicted of violent felonies.
We will remand the matter to the trial court for recalculation of presentence credit.
V
Finally, defendant asserts the abstract of judgment references an inapplicable statute. Defendant and the Attorney General agree that the abstract of judgment incorrectly identifies gross vehicular manslaughter as a violent felony pursuant to Penal Code section 667.5. We will direct the trial court to correct the abstract of judgment to delete this incorrect information.
DISPOSITION
The matter is remanded to the trial court for recalculation of presentence credit. The judgment is otherwise affirmed. The trial court is directed to amend the abstract of judgment to reflect the recalculated presentence credit, and to correct the abstract of judgment to delete the reference that gross vehicular manslaughter is a violent felony pursuant to Penal Code section 667.5. The trial court shall send a certified copy of the amended and corrected abstract of judgment to the Department of Corrections and Rehabilitation.



MAURO , J.



We concur:



ROBIE , Acting P. J.



DUARTE , J.