Brief Bank # B-524
IN THE COURT OF APPEAL
STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,
vs. No. H009180
Defendant and Appellant.
APPELLANT’S OPENING BRIEF
Appeal from the Judgment of the Superior Court
of the State of California for the County of Santa Clara
Superior Court No. 146469
Honorable James H. Chang, Judge
Sixth District Appellate Program
100 N. Winchester Blvd., Suite 310
Santa Clara, CA 95050
In Association With
PAMELA L. HARRINGTON
Harrington & Ingram
415 Russell Avenue
Santa Rosa, CA 95403
Attorneys for Appellant
THE TRIAL COURT COMMITTED REVERSIBLE
ERROR IN FAILING TO INSTRUCT SUA SPONTE
ON SUPERSEDING CAUSE
Appellant submits that the trial court committed reversible error in failing to instruct sua sponte on superseding cause, because one of the theories of appellant’s defense was that the conduct of Ms. B, a passenger in co-defendant Mr. O’s car, distracted Mr. O causing him to lose control of the car. (RT 2235-2236, 2239-2240, 2245.) Moreover, giving CALJIC 3.41, without also giving an instruction on superseding cause, misled the jury. Such an error calls for reversal of the judgment.
B. Factual Background
Two independent witnesses are the key to tying down the sequence of events immediately preceding the crash: Bret M, the San Jose Mercury News truck driver, and Arthur H, the first person on the scene. This is so because their observations were confined to a brief and discrete period of time which can be defined by the specific set of acts which encompassed their observations. Other witnesses, such as appellant, were reduced to making estimates as to time and distance.
Mr. M testified that he viewed two cars traveling side by side, as they approached him from the opposite direction on Monterey Highway. (RT 1026-1028, 1047-1048.) He observed them from a distance of three-quarters to a mile away until he became distracted by and watched the thrown beer can when the two cars were about one-hundred and fifty feet ahead. (RT 1043, 1047-1050.)
He renewed his observation of the two cars which had now passed him and were about 100 to 200 yards behind, by cocking his head in the side view mirror of the delivery truck. [Footnote 2] (RT 1034, 1045.) He observed a cloud of dust and the car in the fast lane making a quick U-turn. (RT 1035.) He did not observe the actual accident. (RT 1036.)
Thus, in the short period of time that Mr. M could observe the vehicles traveling toward him and then recede behind him with a period of distraction in between, three key pieces of evidence emerge. First, the two cars traveled side by side and neither swerved. (RT 1029-1030, 1042-1043.) Second, a female hung out the rear passenger window on the driver’s side of the car in the slow lane. (RT 1030-1031, 1046-1047, 1054-1055.) Third, a beer can was thrown from somewhere between the two cars and flew over the car in the fast lane. (RT 1031-1033.)
Other evidence established that appellant was driving in the fast lane and Mr. O was driving in the slow lane heading north. (RT 483, 1618.) Ms. B was seated in the rear passenger seat behind Mr. O and was not wearing a seat belt. (RT 272, 334.) Beer cans were found in Mr. O’s car but not in appellant’s. (RT 954, 1206.)
Mr. H’s contribution to reconstructing events immediately prior to the collision was that he placed a female cheerleader yell or yell of joy and happiness immediately before the crash. (RT 145-146, 202-203.) Mr. H testified that as he walked near Monterey Highway towards a friend’s house, he heard the yell immediately followed by a loud “pop”. (RT 175-176.) The yell was loud and carried well. (RT 175-210.) He arrived so quickly onto the scene that one of the bodies was just coming to rest on the highway. (RT 147-149, 177.)
C. The Conduct of Ms. B Was An Independent Intervening Cause Which Superseded Any Negligence Of Appellant And Thus Appellant’s Conduct Was Not A Proximate Cause Of The Deaths Herein
Assuming arguendo that appellant was negligent, appellant submits that the conduct of Ms. B was a superseding cause which exonerated appellant from culpability. The issue of superseding cause was a defense theory grounded in the facts before the court and raised legal principles more complex than those on which the court instructed.
Proximate cause in criminal cases is determined by ordinary principles of causation. (People v. Armitage, (1987) 194 Cal.App.3d 405, 420.) First, the defendant’s act must be an “actual cause” of the victim’s injury. (People v. Scola (1976) 56 Cal.App.3d 723, 726.)
Second, the defendant’s act must be a “substantial factor” contributing to the result. (People v. Caldwell (1984) 36 Cal.3d 210, 220.) This issue often arises where multiple causes act concurrently, but independently, to produce the harm. (Id. at pp. 220-221.)
A direct cause which is a substantial factor in the ensuing injury is almost always a proximate cause of it. (People v. French (1978) 77 Cal.App.3d 511, 523-525.) However, when a force arises between the act of the defendant and the injury, it is called an “intervening cause.” Such a cause may be dependent or independent. [Footnote 3] (1 Witkin and Epstein, Cal. Criminal Law (2d ed. 1988) Elements of Crime, §§130-131, pp. 148-150.)
An intervening cause is dependent if it is a normal or involuntary response to, or result of, the defendant’s act. (1 Witkin & Epstein, supra, §130, at p. 148.) Even where such responses are negligent, they do not supersede the defendant’s act. (People v. Armitage, supra, 194 Cal.App.3d at p. 420.)
On the other hand, when the defendant’s conduct merely sets the stage which allows some other action to cause the harm to the victim, the other action is termed an independent intervening cause. It usually supersedes the defendant’s act, thereby precluding a finding of proximate cause. (Perkins and Boyce, Criminal Law (3d ed. 1982) pp. 791, 809; 1 Witkin and Epstein, supra, §131, at pp. 149-150.) Such a cause must be “an unforeseeable intervening cause, an extraordinary and abnormal occurrence, which rises to the level of an exonerating, superseding cause.” (People v. Armitage, supra, 194 Cal.App.3d at pp. 420-421.) A superseding, intervening cause breaks the chain of causation between the defendant’s act and the death. (See, e.g., People v. Pike (1988) 197 Cal.App.3d 732, 748. ) [Footnote 4]
Ms. B’s conduct was clearly an independent, not a dependent, intervening cause. Under the facts of this case, Ms. B’s conduct cannot be characterized either as a response to or a result of an act of appellant. Thus it was not dependent.
Ms. B’s conduct of hanging out the window, throwing a beer can and yelling loudly enough to be heard across the highway was unforeseeable. Foreseeability in the context of an intervening act is dependent upon the character of the act. (Perkins, and Boyce, supra, at pp. 814-816.) It is the “extraordinary and abnormal occurrence” which becomes an exonerating and superseding cause. (People v. Armitage, supra, 194 Cal.App.3d at pp. 420-421.)
Ms. B’s conduct was both extraordinary and abnormal. Mr. O’s car was traveling at a speed of approximately sixty to sixty-five M.P.H., as estimated by the police. (RT 1215.) Yet, Ms. B placed her body from the waist up outside the window, according to Mr. M. (RT 1055.) Moreover, she threw a beer can endangering other vehicles, including those of appellant and Mr. M. Finally, her yell, which was loud enough to be heard across the highway and was coming from the back of his car, can only have been startling to Mr. O as he drove. Placing these three acts together, there was ample evidence from which a properly instructed juror might have entertained reasonable doubt about whether the prosecutor had proved proximate cause as to defendant.
The only evidence which can account for the difference between appellant’s conviction and Mr. O’s acquittal was evidence that appellant merged or swerved into the slow lane shortly before the accident. However, as set forth in Argument I, such evidence of negligence was either substantially attacked or never should have been admitted. A conviction under Penal Code section 191.5 must be based upon a finding that an unlawful act “was a proximate cause of the death.” (CALJIC No. 3.40; CT 839.)
Therefore, in the present case, assuming arguendo that an act of appellant’s was an actual cause and a substantial factor of the victims’ deaths, the evidence that Ms. B hung out of the car window, yelled like a cheerleader and threw a beer can at appellant’s car became critical evidence of a superseding cause. If the jurors had been permitted to consider evidence of Ms. B’s egregious conduct as a superseding cause which exonerated appellant, they well may have acquitted appellant as they did Mr. O.
D. Duty to Instruct on Proximate Cause and Superseding Cause
Proximate cause of the fatal accident was the key issue at trial. Appellant’s counsel expressly argued in her closing argument that Ms. B’s conduct of hanging out the window, giving a cheerleader yell and throwing a beer can at appellant’s car was a superseding cause which precluded any act of appellant and was the proximate cause of death by causing Mr. O to lose control of the car. (RT 2235-2236, 2239-2240, 2245.)
“The duty to instruct, sua sponte, on general principles clearly and openly connected with facts before the court also encompasses an obligation to instruct on defenses…and in the relationship of these defenses to the elements of the charged offenses.” (People v. Sedeno (1974) 10 Cal.3d 703, 716.) Proximate cause is a question for the trier of fact, using ordinary principles of proximate causation. (People v. Harris (1975) 52 Cal.App.3d 419, 427.) A superseding cause exonerates the defendant from liability. (People v. Armitage, supra, 194 Cal.App.3d 405, 420-421.) Thus, the trial court had a duty to instruct sua sponte the jury herein on superseding cause. (People v. Bernhardt (1963) 222 Cal.App.2d 567, 591 [duty to instruct sua sponte on proximate cause]; People v. Hebert (1964) 228 Cal.App.2d 514, 520-521 [duty to instruct clearly on foreseeability as component of superseding cause].)
The trial court ignored its duty to properly instruct in two regards. First, the trial court failed to give an express instruction to the jury on the question of superseding cause. CALJIC does not contain such an instruction. However, the court could either have given a separate special instruction as in People v. Pike, supra, 197 Cal.App.3d 732-747, fn. 3, or modified CALJIC 3.41. (See 1 Forecite (1990) Culpability § F3.41a, p. 1, for a suggested modification of CALJIC No. 3.41 to instruct on intervening cause.)
Second, giving CALJIC 3.41 without also instructing the jury on superseding cause, exacerbated the error. CALJIC 3.41, as given, in part stated: “…If you find that the defendant’s conduct was a proximate cause of the deaths or bodily injuries to another person, then it is no defense that the conduct of some other person, even the injured or deceased persons, contributed to the deaths or bodily injuries.” (CT 841; RT 2072; emphasis added.)
The jury was thus misled by CALJIC No. 3.41 because it told the jurors that the negligent conduct of a third party, such as Ms. B, though it might be a “contributing cause” of the two deaths, could not be considered a defense to a criminal charge. This removed appellant’s defense from the jury’s consideration. Accordingly, because the conduct of Burns could have raised a reasonable doubt about proximate cause in the mind of a properly instructed juror, it was error to fail to instruct on superseding cause and it was further error to give an unmodified version of CALJIC 3.41.
E. Standard of Review
The instructional errors cannot be deemed harmless. A criminal defendant “has a constitutional right to have the jury determine every material issue presented by the evidence.” (People v. Modesto (1963) 59 Cal.2d 722, 730; U.S. Const., Amend. VI (right to jury trial).) Moreover, due process requires the prosecution to “shoulder the burden of proving beyond a reasonable doubt every fact necessary to the crime charged.” (People v. Lee (1987) 43 Cal.3d 666, 673, citing Sandstrom v. Montana (1979) 442 U.S. 510.)
The failure to instruct correctly on the issue of proximate cause resulted in submission to the jury on incomplete and misleading instructions regarding proximate cause, an element of gross vehicular manslaughter while intoxicated. It removed from the jury’s consideration appellant’s defense that Ms. B’s conduct was a superseding cause which exonerated appellant from criminal liability. Such fundamental error rises to the level of a federal constitutional error and is prejudicial unless “the evidence raises any reasonable doubt that a defendant would have been convicted under proper instructions.” (People v. Landry (1989) 212 Cal.App.3d 1428, 1440 (Agliano, P.J.).)
On this record, reasonable persons may differ regarding whether the prosecution proved, beyond a reasonable doubt, the element of proximate cause. Reasonable persons may differ whether Ms. B’s conduct was “an unforeseeable intervening cause, an extraordinary and abnormal occurrence, which [rose] to the level of an exonerating, superseding cause.” (People v. Armitage, supra, 194 Cal.App.3d 405, 420-421.) However, the resolution of issues over which reasonable persons can differ is the proper function of the jury.
The trial court should have instructed the jury on superseding cause. The remedy is to reverse appellant’s vehicular manslaughter convictions so that he may be tried by a properly instructed jury. (People v. Hebert, supra, 228 Cal.App.2d 514, 521.)
He had no center rear view mirror because of the design of the delivery truck. (RT 1034.)
An intervening cause is distinguishable from a concurrent cause or a contributing cause. “A defendant may be criminally liable for a result directly caused by his act, even though there is another contributing cause.” (1 Witkin & Epstein, supra, Concurrent Causes, §128, pp. 146-147.)
For example, in Batts v. Faggart (1963) 260 N.C. 641, 133 S.E.2d 504, 506-507, the negligence of the driver who caused the first collision was not a proximate cause of the second collision; the second driver’s negligence was a superseding, intervening cause.