P. v. Taylor

Filed 3/12/07 P. v. Taylor CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

A jury convicted defendant James Taylor of (1) vehicular manslaughter with gross negligence, and (2) child endangerment. On appeal, defendant contends that the trial court erred by failing to instruct the jury sua sponte in the language of CALCRIM No. 3404 (defense of accident or misfortune). He alternatively claims that his trial attorney was constitutionally ineffective for not requesting CALCRIM No. 3404. We affirm the judgment.

background

Monica Sambido drove her car onto the right-hand lane of southbound Highway 1 from the Del Rey Oaks on ramp. She accelerated to 55 miles per hour as she switched onto the left-hand southbound lane in order to pass defendant who was driving in the right-hand lane at 40 miles per hour. When Sambidos front wheels reached close to defendants rear bumper, defendant suddenly changed lanes and decreased his speed. Sambido applied her brakes causing motorists behind her to honk their horns. Defendant then extended an arm outside his window and gave Sambido an obscene gesture. Sambido switched onto the right-hand lane and accelerated in an attempt to pass defendant. Defendant then accelerated into the right-hand lane. Sambido honked her horn. Defendants car collided into the left front side of Sambidos car. Defendants car flipped over, traveled 162 feet, and crashed into two trees. Defendants passenger died as a result. The passengers two-year-old son survived though defendants car had not been equipped with a child seat.

Defendant argued that the accident happened as a result of his inattention and mistaken judgment. According to defendant, he was driving an old, slow car in an unfamiliar area when Sambido attempted to pass him on the right, which placed Sambido in his blind spot.

discussion

CALCRIM No. 3404 states, in relevant part (with brackets omitted): The defendant is not guilty . . . if (he/she) acted or failed to act accidentally without criminal negligence. You may not find the defendant guilty . . . unless you are convinced beyond a reasonable doubt that (he/she) acted with criminal negligence. Criminal negligence is defined in another instruction.

The instruction is premised on Penal Code section 26, subdivision five, which provides a defense to [p]ersons who committed the act or made the omission charged through misfortune or by accident, when it appears that there was no evil design, intention, or culpable negligence. If the defendants conduct was accidental, then he or she acted without forming the mental state necessary to make the action a crime. (People v. Gonzales (1999) 74 Cal.App.4th 382, 390.)

The trial court has a sua sponte duty to instruct on a particular defense if (1) it appeared that the defendant was relying on the defense, or (2) there was substantial evidence supportive of the defense and it was not inconsistent with defendants theory of the case. (People v. Breverman (1998) 19 Cal.4th 142, 157.)

Defendant urges that CALCRIM No. 3404 was justified because the evidence supported and he argued to the jury that he did not act with criminal negligence.

But, even if the trial courts failure to instruct the jury on the defense of accident or misfortune was error, such error was harmless.

The erroneous failure to instruct on a defense is harmless if the factual question posed by the omitted instruction was necessarily decided under other proper instructions. (People v. Jones (1991) 234 Cal.App.3d 1303, 1314-1315, fn. 9.) In Jones, the court held that the trial courts failure to instruct the jury on the defense of accident or misfortune with respect to a charge of attempted murder was harmless because the jury was properly instructed, inter alia, [t]hat it had to determine the truth vel non of the charged allegation that the attempted murder was willful, deliberate and premeditated, and the jury found the allegation true. (Id. at p. 1315.)

In this case, the trial court properly instructed the jury in the language of CALCRIM No. 592 that (1) it was necessary to find gross negligence in order to find defendant guilty of gross vehicular manslaughter, and (2) gross negligence involves more than ordinary carelessness, inattention or mistake in judgment. And, after instructing that the People had the burden to prove gross vehicular manslaughter beyond a reasonable doubt, it then properly instructed in the language of CALCRIM No. 593 that the jury could instead find defendant guilty of the lesser crime of misdemeanor vehicular manslaughter with ordinary negligence (as defined).

Thus, in finding defendant guilty of gross vehicular manslaughter and rejecting the lesser alternative of misdemeanor vehicular manslaughter, the jury necessarily found that defendants act constituted criminal negligence because it was more than ordinarily careless, more than a result of inattention or mistake. In other words, the jury resolved the issue which would have been presented by the instruction on misfortune or accident--whether defendant acted or failed to act accidentally without criminal negligence.

The same analysis applies to the child endangerment count. The trial court properly instructed the jury in the language of CALCRIM No. 821 to the effect that it was necessary to find that defendant willfully caused or permitted a child in his care to be placed in danger and was criminally negligent in doing so. In this context, the trial court again defined the criminal-negligence mental state, in part, as more than ordinary carelessness, inattention or mistake in judgment.

Thus, under the instructions given to the jury, defendant could not have been found criminally negligent if he had simply unwittingly placed his passengers child in a dangerous situation as a result of accident or misfortune. The instruction defining criminal negligence covered the very point CALCRIM No. 3404 would have under the circumstances of this case.

This case is distinguishable from People v. Gonzales, supra, 74 Cal.App.4th at page 390, cited by defendant. There, the defendant was convicted of willful infliction of corporal injury on a cohabitant. His girlfriend first reported that the defendant had beaten and kicked her. But she later testified that her injuries accidentally occurred when the defendant opened the bathroom door just as she was leaving the bathroom. Since there was substantial evidence supporting the defense of accident and defense counsel relied on it in argument, the court concluded that the trial court had erred in failing to sua sponte instruct the jury regarding the defense. The court reversed the judgment because the instructions given did not otherwise cover the defense.

On our record, we see no reasonable probability of a result more favorable to defendant had the trial court given CALCRIM No. 3404 because the factual question posed by the omitted instruction, i.e., whether defendant formed the mental state necessary to make his actions a crime, was necessarily resolved adversely to defendant under other instructions. (See People v. Corning (1983) 146 Cal.App.3d 83 [in light of the evidence, the jurys findings rejecting the defendants version and the self-evident nature of the accident instruction, it is not reasonably probable that a more favorable result would have been reached had the instruction actually been given].)

And in the absence of prejudice, defendants claim of ineffective assistance of counsel also fails. (See Strickland v. Washington (1984) 466 U.S. 668, 697.)

abstract

The parties ask that we correct a clerical error in the abstract of judgment, which reflects a conviction of gross vehicular manslaughter while intoxicated (Pen. Code, 191.5, subd. (a)) instead of vehicular manslaughter with gross negligence (id., 192, subd. (c)(1)).

disposition

The judgment is affirmed. The trial court is directed to correct the abstract of judgment to reflect a conviction of Penal Code section 192, subdivision (c)(1).

Premo, J.

WE CONCUR:

Rushing, P.J.

Elia, J.

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