Brief Bank # B-961 (Re: F 3.40 n3 / F 3.40 n4 / F 3.41a / F 8.55 n1 [Pre-1992 Causation Instructions Created Improper Mandatory Presumption].)
CAVEAT: The file below was not prepared by FORECITE. FORECITE has not made any attempt to review or edit this material and is not responsible for its content or format. FORECITE cannot guarantee the information is complete, accurate or up-to-date. You are advised to conduct your own independent, comprehensive research on all issues addressed in the material below.
NOTE: The text of the footnotes appears at the end of the document.
Date of Brief: May, 2000
EXCERPT FROM BRIEF
THE JURY RECEIVED INCORRECT AND INCOMPLETE
INSTRUCTIONS ON PROXIMATE CAUSE.
The most significant factual and legal issue presented in this case was whether appellant’s act (shooting the victim in the forehead) was the proximate cause of the victim’s death. Proximate cause is initially a factual decision for the jury. (People v. Harris (1975) 52 Cal.App.3d 419, 427.)
To decide the issue, it was important for the jury to answer two ultimate questions of fact: (1) whether the neglect of the victim’s deep vein thrombosis, which resulted in his death was an independent intervening cause of death or a dependent product of appellant’s shooting of the victim; and (2) whether the neglect of the victim’s deep vein thrombosis was a foreseeable supervening cause of death. To answer these ultimate questions, the jury also had to decide whether deep vein thrombosis was a foreseeable result of a gunshot wound to the head, whether it was foreseeable that the treatment of the deep vein thrombosis would be ignored once the diagnosis was made, whether it was foreseeable that Mr. W would develop pulmonary emboli as a result of the deep vein thrombosis, and whether he would die as a result of the pulmonary emboli. The jury did not receive proper instructions to assist them in these decisions.
That the principles of proximate cause are complicated makes the errors in instructions in appellant’s case all the more prejudicial. The jury was presented with only some of the factors that must be applied to determine appellant’s criminal responsibility for the death of Mr. W. And the principles that were provided to the jury were confusing, ambiguous, misleading, inapplicable, and even incorrect statements of the law.
The court has a sua sponte duty to give instructions on general principles of law connected with the case. (People v. St. Martin (1970) 1 Cal.3d 524, 531; People v. Sedeno (1974) 10 Cal.3d 703, 715-716.)
“Jurors are not experts in legal principles; to function effectively and justly, they must be accurately instructed in the law.” (Carter v. Kentucky (1981) 450 U.S. 288, 302.)
Failure to instruct on these issues deprived appellant of his right to have the prosecution prove every element beyond a reasonable doubt and his right to have the jury determine every issue. (People v. Lee (1987) 43 Cal.3d 666, 673; Sandstrom v. Montana (1979) 442 U.S. 510.)
B. The court failed to instruct on supervening causes.
The term “proximate cause” can easily be misinterpreted. “The concept of proximate causation has given courts and commentators consummate difficulty and in truth has defied precise definition.” (State Comp. Ins. Fund v. Ind. Acc. Com. (1959) 176 Cal.App.2d 10, 20.)
“Proximate cause” is used to indicate a cause of which the law will take notice. Such equivalent terms as “primary cause,” “efficient cause” and “legal cause” are used, with the latter being preferred by the American Law Institute. (Perkins & Boyce, Criminal Law (3d ed. 1982) at pp. 774-775.)
No act will receive juridical consideration as a cause of a given result unless it is a cause in fact thereof, but it may be a cause as a matter of fact without receiving legal recognition as such. (Id., at p. 774.)
In determining whether a defendant’s act was the legal or proximate cause of the victim’s death, the initial inquiry is whether a defendant’s act was the actual cause of death: but for a defendant’s act, would the death have occurred? (See, e.g., People v. Capetillo (1990) 220 Cal.App.3d 211, 220; People v. Scola (1976) 56 Cal.App.3d 723, 726.) In addition to being the actual cause of death, a defendant’s act must have been a substantial factor in the death if there was more than one cause of death. (Ibid.)
But the inquiry does not end there. The only purpose of the substantial factor test is to eliminate causes that are not substantial factors. Even if a defendant’s act was a substantial factor in the death, it may or may not be the proximate cause of the victim’s death. (See People v. Pike (1988) 197 Cal.App.3d 732, 746, quoting Perkins, Criminal Law (2d ed. 1969) p. 696, fn. omitted. [Footnote 1])
After determining that a defendant’s act was the sole actual cause of death, or a substantial factor in causing death where there is more than one actual cause, the next inquiry is whether a defendant’s act was the direct cause of death, or whether there were any intervening causes. There are two types of intervening causes: dependent and independent.
Perkins and Boyce supply explanations of each. A dependent intervening cause is one that is set in motion as a response to, or as a result of, defendant’s act. It does not relieve a defendant of the responsibility for his act. For example, if defendant shoots a gun, scaring a dog, which bites the victim in reaction to the gunshot, the cause of the bite is dependent upon the defendant’s gunshot. On the other hand, a defendant’s act that merely places the victim in a position where another’s act causes harm is an independent intervening act and supersedes the defendant’s responsibility (by breaking or superseding the chain of causation). The most common example is an act of God, such as the defendant causing a person to be in a place where he is hit by lightning. However, it also applies to a situation where the injury is caused by a force that operates on a condition caused by the defendant’s actions, but is not a result of those actions. For example, a third person kicks a victim knocked down by defendant. (Perkins & Boyce, supra, at pp. 790-791; see also, LaFave & Scott, Substantive Criminal Law (1986) p. 406-407.) As argued infra., appellant’s act fits within this latter category.
An intervening act will not relieve a defendant of the consequences of his own act if the intervening cause is reasonably foreseeable. If it is not foreseeable, it is an independent intervening cause and will relieve a defendant of responsibility; therefore it is a superseding cause. (People v. Harris, supra, 52 Cal.App.3d at p. 426-427; see also People v. Pike, supra, 197 Cal.App.3d at p. 749; People v. Hebert (1964) 228 Cal.App.2d 514, 520-521.)
The primary legal issue to be determined in appellant’s case was whether the neglect of the victim’s DVT (which led to at least one pulmonary embolus, which was the sole direct cause of death) was a superseding cause of death, relieving appellant of criminal responsibility. The jury received no instruction on this critical issue. The determination of whether the cause of death was a dependent intervening cause or an independent supervening cause should have been at the heart of the jury’s deliberations. Even if we accept the prosecution theory that the gunshot wound led to DVT (a theory even the prosecution’s own experts would not embrace wholeheartedly on medical grounds), it is the neglect of the developing DVT which supervened to relieve appellant of criminal responsibility. It is simplistic to say that because the death followed the gunshot wound that the gunshot wound caused the death; it is a legally inaccurate and incomplete statement as well. Yet that is essentially the instruction the jury received on the issue.
The jury received no instruction on supervening causes; the court erred.
C. The court failed to instruct on foreseeability.
Proximate cause is established where the defendant’s act is directly connected with the death and there is no intervening force. If an intervening act is a normal and reasonably foreseeable result of the defendant’s act, then it is not a superseding cause and will not relieve defendant of criminal responsibility. (People v. Armitage (1987) 194 Cal.App.3d 405, 420.)
People v. Hebert, supra, 228 Cal.App.2d 514 is the leading case on the relationship between the factual question of foreseeability and the legal doctrine of proximate cause. In Hebert, the defendant struck the victim during a fight in a bar. The victim, who had been drunk and disorderly before the altercation, was arrested and taken to the police station, where he fell and struck his head on the asphalt floor and later died. It was the pathologist’s opinion that death was caused by two blows to the back of the head. It was theorized that the defendant caused one injury and one was caused by the victim’s fall at the police station; the pathologist could not say whether one independently would have caused death. The court stated, “The determinative question on trial was whether defendant’s act of striking decedent and knocking him to the floor was a proximate cause of death.” (Id., at p. 516.)
Unlike the situation in appellant’s case, the trial court in Hebert gave some instruction on supervening causes. The following instruction was given:
A defendant’s act may be considered the proximate cause of the death of another though it is not the immediate cause, if it is the ultimate cause. But where there is a supervening cause the defendant’s act cannot be considered a proximate cause. The fact, if it be a fact, that the deceased or some other person or persons were guilty of negligence, which was a contributory cause of the death involved in the case, it is not deemed to be a supervening cause and is no defense to a criminal charge if the defendant’s own conduct was a proximate cause of the death. (Id., at p. 519.)
The Supreme Court reversed Hebert’s conviction, finding that this instruction was “wholly inadequate” because it failed to inform the jury that the critical issue in the case was foreseeability. (Id., at pp. 519-520.):
Defendant had a duty to anticipate the common and ordinary consequences of his act, and these he was responsible for. They could be said to be the direct consequences. But the fall in the police station could have been found to be an extraordinary and abnormal occurrence, not reasonably foreseeable as a result of the first injuries. The failure of the court to instruct that the defendant would have been responsible for the consequences of the injuries received after [the victim] was taken from the barroom only if further injury was reasonably to be anticipated, and the giving of instructions that enabled the jury to hold him responsible for later injuries even if the same were not reasonably foreseeable was prejudicial and reversible error. (Id., at p. 521.)
The Supreme Court recently re-acknowledged that the principle of foreseeability must be considered in determining whether intervening medical malpractice will relieve a defendant of criminal responsibility: “To be sure, when medical treatment is grossly improper, it may discharge liability for homicide if the maltreatment is the sole cause of death and hence an unforeseeable intervening cause. [Citations]” (People v. Roberts, (1992) 2 Cal.4th 271, 312.)
The prosecution in appellant’s case was required to prove that the medical malpractice in negligently ignoring Mr. W’s progressing DVT was foreseeable. If it was unforeseeable, it supervened appellant’s criminal liability for the gunshot wound, even assuming the gunshot wound was a cause of death. Yet the jury was not instructed on this critical element of proximate cause.
The error was compounded by giving CALJIC No. 8.57:
Where the original injury is a proximate cause of the death, the fact that the immediate cause of the death was the medical or surgical treatment administered or that such treatment was a factor contributing to the cause of death will not relieve the person who inflicted the original injury from responsibility.
¶ Where, however, the original injury is not a proximate cause of the death and the death was proximately caused by such medical or surgical treatment or some other cause, then the defendant is not guilty of an unlawful homicide. (CT 643; RT 2350.)
This instruction simply relies upon CALJIC No. 8.55, which defined “a proximate cause” as a cause that led to the death in “a natural and continuous sequence.” However, the jury was never told that an intervening cause can serve to interrupt the “natural and continuous sequence.” The instruction given would lead the jury to believe, as the prosecutor urged, that if the death followed the shooting, then appellant was responsible and, as the prosecutor urged, the malpractice was irrelevant. This is not correct; if the medical malpractice intervened and was not foreseeable, then there is no longer a “natural and continuous sequence.” This the jury was not told.
The jury should have been told that if it found the gunshot wound caused the medical neglect of the DVT, which caused death, it must also find that the medical neglect of the DVT was foreseeable for appellant to be responsible for Mr. W’s death.
The jury should have been instructed that an unforeseeable intervening cause is regarded as the proximate cause of the death and relieves the original actor of criminal liability; if the evidence raises a reasonable doubt as to whether the neglect of the deep vein thrombosis was not a normal and reasonably foreseeable result of the defendant’s original act, then the jury must find that the defendant’s act was not the proximate cause of death and acquit him. (See People v. Harris, supra, 52 Cal.App.3d at p. 426; see also Perkins & Boyce, supra, Crim. Law (3rd Ed. 1982) at p. 791. 809.)
There certainly was evidence upon which to base a conclusion that what happened to Mr. W was unforeseeable. First, Dr. Golding, the vascular expert, testified that there is a 10% to 30% chance of developing DVT after a gunshot wound to the head. Of that 10% to 30%, .3% (three-tenths of a percent) who develop DVT will die of pulmonary emboli. A vast majority of those who develop DVT do not develop pulmonary emboli, and a vast majority of those who do do not die from them. (RT 1626, 1629-1631.) Even after 25 years of experience as a neurosurgeon, Dr. Clague was shocked at the drastic turn of events in Mr. W’s case. He estimated the incidence of thrombosis in neurosurgical patients to be less than 3% and less than 5% of that number die. (RT 872, 879.)
To make a legally valid finding that appellant’s act was the proximate cause of Mr. W’s death, the jury had to consider this and other evidence to make a determination of whether there was a foreseeable superseding act, yet the jury was not told it had to make this decision.
D. CALJIC No. 8.55 compounded the error because it excluded consideration of intervening causes and provided an impermissible mandatory presumption.
The jury was instructed with CALJIC No. 8.55:
To constitute murder there must be, in addition to the death of a human being, an unlawful act which was the proximate cause of that death.
¶ A proximate cause of a death is a cause which, in natural and continuous sequence, produces the death, and without which the death would not have occurred. (CT 641; RT 2349-2350.)
This instruction has been held not to be a correct statement of the law and has since been revised. CALJIC No. 8.55 (1992 revision) now states:
To constitute [murder] [or] [manslaughter] there must be, in addition to the death of a human being, an unlawful act which was the cause of that death.
This instruction is now to be given in combination with CALJIC No. 3.40:
[To constitute the crime of _____________ there must be in addition to the (result) an unlawful [act] [or] [omission] which was a cause of that (result) .
¶ The law has its own particular way of defining cause. A cause of the (result) 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 (result) and without which the (result) would not occur.
The essential difference in the disapproved instructions given in appellant’s case and the instructions that are now to be given is that the instructions in appellant’s case directed the jury to find probable cause if it found that the victim’s death followed the shooting in a natural and continuous sequence. It did not allow for any consideration of intervening causes. It did not allow the jury to decide whether appellant’s act was the proximate (i.e. legal) cause of death. It only told the jury that if it found a natural and continuous sequence, then appellant’s act was, as a matter of law, the proximate cause of death.
This is not a correct statement of the law and was disapproved for use in both Mitchell v. Gonzales (1991) 54 Cal.3d 1041 and People v. Roberts, supra, 2 Cal.4th at pp. 311-313. In Roberts, the court found that the infirmity defined in Mitchell was equally applicable to criminal cases and, in addition, for criminal liability to be found, the harm must not only be the direct result of the act, but also not so remote as to fail to constitute the natural and probable consequences of defendant’s act (See CALJIC Use Note to No. 3.40 (Fifth Edition, July 1992).)
The instruction also suffers from another infirmity not addressed in Mitchell or Roberts. The instruction includes a conclusive mandatory presumption regarding the finding of proximate cause. Such a presumption is invalid because it removes from the jury’s consideration other factors that must be considered in determining proximate cause. The revised instructions correct the problem; they dictate that if the jury concludes the defendant’s act resulted in death, it is merely a cause of death, not a proximate cause. The jury is then free to determine, under other properly given instructions, whether the cause is the proximate (legal) cause.
A mandatory presumption, which tells a jury to presume proof of an element upon proof of another fact, conflicts with the presumption of innocence and relieves the prosecution of its burden to prove every element beyond a reasonable doubt. It is unconstitutional. (Sandstrom v. Montana, supra, 442 U.S. at p. 524; People v. Hedgecock (1990) 51 Cal.3d 395, 407.) This is distinguished from a permissive presumption, which tells the jury it may infer the element upon proof of a certain fact, and is not constitutionally infirm. (Ulster County Court v. Allen (1979) 442 U.S. 140, 157.)
The initial inquiry must therefore be whether the presumption is mandatory or permissive. (Sandstrom v. Montana, supra, 442 U.S. at p. 524.) For example, a statute stating that the defendant “shall be presumed to have bought or received property knowing it to have been . . . stolen” is a “classic example” of an impermissible mandatory presumption. (People v. Roder (1983) 33 Cal.3d 491, 501.) Likewise, it was error to instruct “When an act inherently dangerous to others is committed with a conscious disregard of human life and safety the intent to commit a battery is presumed.” (People v. Burres (1980) 101 Cal.App.3d 341, 353. [Footnote 2])
In a recent case arising in California, ultimately decided by the U.S. Supreme Court, the jury was instructed that a person who rents a vehicle and fails to return it within five days after expiration of the rental agreement is presumed to have embezzled the vehicle. This was held to be an invalid mandatory presumption. (Carella v. California (1989) 491 U.S. 263.)
Here, the jury was instructed that if it found the death to have followed the shooting in a “natural and continuous sequence,” then appellant’s act was conclusively the proximate cause of the death. There was no room for the jury to consider intervening factors, such as the medical neglect that was at the heart of the defense. The jury was directed to find the element of proximate cause upon a finding of a preliminary fact.
The next step is to consider whether any other instructions cured the erroneous impression created by the mandatory instruction. (Franklin v. Francis (1985) 471 U.S. 307, 315.) There were no instructions on supervening causes, which would have ameliorated the problem. The jurors received only the erroneous instructions directing them to find proximate cause.
The prosecution exacerbated the error in its argument. In summarizing what the prosecutor believed was the “natural and continuous sequence of events,” she traced the gunshot to the victim falling to the victim twisting his ankle and the cash box falling on him to brain surgery to decreased mobility due to the brain surgery to the DVT to pulmonary emboli to death. (RT 2126-2128.) In her closing argument, the prosecutor relied on the instruction to argue that the gunshot need only be “a” proximate cause of death, not “the” proximate cause of death. She also relied on the instruction to argue that the prosecution need only show that the death followed the gunshot in sequence:
A proximate cause is a cause which in natural and continuance [sic] sequence produces the death and without which the death would not have occurred. That is the entire instruction. It does not have to be proven to you by the People that the act — the direct cause of the death, it does not have to prove that — the people do not have to prove that the death was a direct result of the act, and the people do not have to prove a one-to-one relationship. [Footnote 3] The People do not have to show that the head and deep vein thrombosis are medically connected in some way, and the People do not have to show that the head and the deep vein thrombosis are physically connected in some way. What the people have to show is that the act or acts of the defendants proximately caused as defined in this instruction, proximately caused the death of the victim. (RT 2310-2311.)
She concluded her argument on proximate cause by saying, “You cannot ignore the gunshot wound in your analysis. It happened, they did it, they’re responsible for it. And then they are responsible for the consequences that resulted from it.” (RT 2317.)
If the jury found a natural and continuous sequence, then it was required to find that appellant’s acts were the proximate cause of the victim’s death. This was an impermissible mandatory presumption that omitted a consideration of intervening factors. It was reversible error [Footnote 4] under the standard set forth in Chapman v. California (1967) 386 U.S. 18, 21. (People v. Hedgecock, supra, 51 Cal.3d at p. 410.) If there is a reasonable possibility the error contributed to the verdict, the error is reversible. Consideration of superseding causes was removed from the jury’s consideration by the mandatory presumption (as well as by the failure to instruct on superseding causes). The jury was, in effect, told to disregard the medical negligence as a factor causing Mr. W’s death. A valid factor was removed from the jury’s consideration by the erroneous instruction; there is a reasonable doubt about the validity of the result of the case in light of the impermissible mandatory presumption.
E. The error was further compounded by instructions on concurrent causes.
The jury was also instructed with CALJIC No. 3.41 on concurrent causes:
There may be more than one proximate cause of the death of Mr. W. When the conduct of two or more persons contributes concurrently as a proximate cause of the death of Mr. W, the conduct of each such persons 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 moment of the death of Mr. W and acted with another cause to produce the death of Mr. W. (CT 642; RT 2350.)
The wording of this instruction has been disapproved and has been replaced by an instruction that deletes “proximate” from the above instruction. (CALJIC (Fifth Edition, July 1992).)
Concurrent causes, by definition, act concurrently, that is, at the same time, to produce the result. For example, in People v. Vernon (1979) 89 Cal.App.3d 853, four people attacked the victim with fists and feet. The defendant handed a knife to a co-defendant, who slit the victim’s throat. Under the concurrent cause theory, there was sufficient evidence to convict the defendant of manslaughter. (Id., at p. 864.) The blows and kicks contributed to the death and were inflicted in the same course of conduct as the victim’s throat being cut.
Similarly, in People v. Ross (1979) 92 Cal.App.3d 391, the defendant helped to tie up the victim and take him into the bedroom, where a co-defendant beat up the victim. Defendant left the house with the victim’s valuables, and then the co-defendant set fire to the house. The cause of death was both the inflicted trauma and burning. The court held that the defendant was criminally liable; if concurring causes contribute to death, “one may be criminally liable by reason of his own conduct which directly contributed to such result.” (Id., at p. 401; emphasis added.)
And in In re Tyrone B. (1976) 58 Cal.App.3d 884, 888-890, the defendant hit the victim with a shovel and stabbed him and a co-defendant shot him. The court rejected an argument that the co-defendant’s act was the sole cause of the victim’s death. It was sufficient that the defendant participated in a simultaneous attack on the victim, thereby contributing a concurrent cause of death.
In appellant’s case, the “causes” were not concurrent; appellant shot Mr. W, Mr. W had recovered from the immediate effects of the gunshot, and then a new and different medical condition developed that was neglected and ultimately was the cause of death. Appellant’s act of shooting Mr. W and the medical personnel’s act of neglecting Mr. W’s increasingly serious DVT and eventual pulmonary emboli did not act at the same time to cause death; they were not concurrent causes, and thus CALJIC No. 3.41 was not supported by the facts.
The court has a duty to give appropriate instructions and not to give instructions that do not apply to the facts of a particular case. It is error to give an instruction that is not supported by the facts. (People v. Saddler (1979) 24 Cal.3d 671, 684.)
F. The prosecution’s special instruction also served to mislead the jury.
The prosecution requested an instruction based on People v. McGee (1947) 31 Cal.2d 229, 240:
When a person inflicts a wound on another which is dangerous, or calculated to destroy life, the fact that the negligence, mistake, or lack of skill of an attending physician or surgeon contributes to the death affords no defense to a charge of homicide.
¶ Following this general rule, where the wound inflicted by the accused operates as a general cause of death, the fact that the malpractice of attending surgeons may have had some causative influence will not relieve the accused from full responsibility for the ultimate result of his act.
¶ On the other hand, in qualification of this rule, where a person inflicts on another a wound not in itself calculated to produce death, and the injured person dies solely as a result of the improper treatment of the wound by an attending physician or surgeon, the fact that the death was caused by medical mistreatment is a defense to the charge of homicide. (CT 644; RT 2350-2351.)
The biggest error in this instruction is that it does not take into account medical negligence that is an indirect intervening cause of death; it assumes that all medical negligence will be a direct intervening cause; that is, the medical negligence will be a normal response to, or result of, a defendant’s act. (See People v. Armitage, supra, 194 Cal.App.3d at p. 420.)
Because the language of the instruction was drawn directly from McGee, it is understandable that it will apply in a situation such as that raised in McGee where the medical negligence directly followsedthe defendant’s act. In McGee, the defendant shot the victim. The victim bled to death from the bullet wound because the hospital did not treat the wound inflicted by defendant quickly enough. The immediate cause of death was hemorrhage from the bullet wound. There was no intervening act that could serve as a supervening cause.
Similarly in People v. Dilworth (1969) 274 Cal.App.3d 27, the defendant shot the victim. The victim died of a ruptured vena cava. The defendant theorized that since the injury should have been immediately fatal, the fact that the victim lived for several hours after being shot indicated that the hospital’s negligence in treating the wound caused the death. This court held that even if the vena cava had been ruptured by the treating surgeon, the gunshot wound was the direct cause of the treatment and therefore there was no supervening cause of death. (Id., at p. 33.)
Here, however, the negligent treatment was in response to the development of DVT. It was for the jury to decide whether the pulmonary emboli were directly caused by the gunshot wounds or whether medical negligence intervened to cause Mr. W’s death.
There was significant evidence to support a conclusion that the gunshot wound and the DVT were not causally connected. Even Dr. Clague, the neurosurgeon who treated Mr. W acknowledged no one knows why some clots are formed or when they may begin to form. (RT 855, 881.) He could not say with any degree of medical certainty that Mr. W developed DVT because of his head wound. (RT 1007.) Nor could Dr. Goka, the rehabilitation doctor, say with a reasonable degree of medical certainty whether Mr. W’s lessened mobility or immobility during surgery caused DVT. (RT 1400.) The pathologist, Dr. Avalos, attributed leg injuries as the most common cause of pulmonary emboli. (RT 1511.) He believed that immobility was the major contributing factor to DVT, but it did not act alone. (RT 1560-1561.)
Dr. Golding, the Director of Thoracic and Vascular Surgery and Director of the Vascular Lab at Century City Hospital provided lucid testimony that would lead to a conclusion that the gunshot wound did not cause the DVT. He testified that the only known cause of DVT is direct trauma. It could not be said that the neurosurgery, bed rest, or immobility were direct causes of the DVT, especially since Mr. W had direct trauma to his lower leg. Although immobilization or confinement to bed is a factor associated with DVT, there is no cause-effect relationship. (RT 1633, 1780.) If Mr. W did not have the leg injury, he probably would not have developed DVT. (RT 1797.) DVT developed as a result of ankle and foot trauma. The pulmonary embolism was not a natural and continuous result of the gunshot wound or the leg trauma. When the diagnosis of DVT was made the morning of Mr. W’s death, the death was preventable; failure to treat the DVT led to pulmonary emboli, which led to Mr. W’s death. (RT 1807-1808, 1814.)
Thus, compelling testimony would support a conclusion that the DVT was unrelated to the head wound and rather came as a result of the leg wound (which was not intentionally inflicted by appellant). Further, there was significant evidence that the pulmonary emboli that resulted from the DVT were unrelated to the head wound or the leg wound and came as a result of failing to treat the DVT. It was the jury’s task to evaluate this evidence. The jury was prevented from properly evaluating it because the instruction given on the effects of medical mistreatment did not take into consideration independent intervening causes. The instruction was based only on a situation where the death is a direct result of the defendant’s act, not a situation such as that presented in appellant’s case where the cause of death was not the original gunshot.
G. The errors were prejudicial.
The trial court has a duty to see that the jurors are adequately informed on the law governing all elements of the case to the extent necessary to enable them to decide the case properly. This duty is not always satisfied by merely reading otherwise-correct, requested instructions. (People v. Sanchez (1950) 35 Cal.2d 522, 528.) A trial court has a sua sponte duty (1) to instruct on general principles of law relevant to issues raised by the evidence; and (2) to give explanatory instructions when terms used in an instruction have a technical, legal meaning. (People v. Sedeno, supra, 10 Cal.3d at p. 715; People v. Valenzuela (1985) 175 Cal.App.3d 381, 393.)
A defendant has a constitutional right to have the jury determine every material issue presented by the evidence, and a denial of that right constitutes a miscarriage of justice regardless of the strength of the prosecution’s case. (People v. Mayberry (1975) 15 Cal.3d 143, 157; see also People v. Reynolds (1988) 205 Cal.App.3d 776, 779.)
Failure to instruct on an element or giving incomplete or conflicting instructions on an element is reversible error unless it is established beyond a reasonable doubt that the error did not affect the outcome of the case. (Chapman v. California, supra, 386 U.S. at p. 24; Rose v. Clark (1986) 478 U.S. 570; People v. Lee, supra, 43 Cal.3d at pp. 671-676.)
Failure to instruct correctly on the requirements for finding appellant’s act of shooting was the proximate cause of Mr. W’s death resulted in the submission to the jury of an incomplete statement of the elements of murder. It relieved the prosecution of proving all the elements of proximate cause beyond a reasonable doubt. It removed from the prosecution’s burden of proof and from the jury’s consideration the questions of whether DVT was a foreseeable result of a gunshot wound to the head, whether it was foreseeable the treatment of DVT would be neglected once initially suspected and later diagnosed, whether it was foreseeable that Mr. W would develop pulmonary emboli as a result of DVT, and whether it was foreseeable that he would die as a result of the pulmonary emboli. It also removed from the prosecution’s burden of proof the broader questions of whether the neglect of Mr. W’s DVT, which resulted in his death, was an independent cause of death and whether the neglect was foreseeable. The erroneous instructions also led the jury to an impermissible conclusion that if the death simply followed the shooting, this was sufficient to convict appellant of murder, regardless of any intervening factors.
It cannot be said beyond a reasonable doubt that the result would have been the same if the proper instructions had been given. Therefore, appellant’s conviction must be reversed.
The same principle appears in Perkins & Boyce, Criminal Law (3d ed. 1982) at p. 780.)
The Burres court was of the opinion that the error was reversible per se, and it is on this issue that other courts disagree, not on the determination of whether the instruction was erroneous.)
This singular statement summarized the issue presented to the jury for its consideration and exemplified one of the major shortcomings in the instructions. The jury had only to decide whether the death came after the gunshot in a sequence of occurrences. The jury was never told that intervening causes severed the chain of responsibility for appellant, or even that there was such a thing as an intervening cause.
The cumulative prejudicial effect of the erroneous instructions on the elements of proximate cause is more fully discussed infra.