Opinion
With a blood-alcohol level of .22 percent, defendant and appellant Kenneth Autry recklessly drove on a freeway, swerved into the median strip, struck and killed two highway construction workers, and injured his two passengers. A jury convicted appellant of two counts of second degree murder
(People
v.
Watson
(1991)
Facts
Appellant had four prior convictions for drunk driving, suffered in 1983, 1984, and 1991. He failed to attend court-ordered educational programs in connection with those convictions, but in 1991 admitted that he had a drinking problem and participated in a 45-day residential alcoholism program at “How House,” where participants are “bombarded” with horror stories about the dangers of driving while intoxicated. In October 1991, his probation officer told him he should not drink and drive because he might kill someone or be killed, and leave his children without a parent. On April 27, 1992, the day of the fatal accident, appellant was on probation for a different offense. That very morning, he met with his probation officer who warned him not to drink and drive.
Nevertheless, that day appellant drove his Ford Bronco to the desert where he and his friend Richard Bonato, and Bonato’s friend Lester Lonian, drank beer. Appellant drove them to Bonato’s aunt’s house in Apple Valley and drank more beer. They decided to drive to Los Angeles. Appellant stopped to buy a case of beer. Appellant drank more than two beers while driving.
At the transition from interstate 15 to interstate 10, appellant, who by then appeared under the influence, lost control, swerved and skidded because he
Near downtown Los Angeles, appellant missed a freeway turn and got off the freeway. As he exited, he ran a red light and was nearly broadsided by a big rig truck. Bonato and Lonian again urged that Bonato drive; appellant told them, “later.”
Appellant drove southbound on the Long Beach Freeway at 80 to 85 miles per hour. Lonian told appellant to “slow down, [I don’t] want to die”; appellant said “Fuck off.” At Lonian’s urging, Bonato climbed into the backseat with Lonian and fastened his seat belt.
The accident occurred about 6:30 p.m., near the Rosecrans overpass. There a private highway construction contractor, MCM Construction, had a warning sign truck stopped in the median, with a flashing arrow indicating traffic should move to the right for construction ahead. The warning sign truck was entirely within the wide median, not blocking the fast lane, because the actual lane takeover would not occur for another mile, after two more warning signs. This was the first of such warning signs. Several motorists testified at trial that although the warning sign truck was beyond the overpass, they had no difficulty seeing it well before reaching the overpass.
About two minutes before the accident, appellant nearly struck the car of Carolyn Fraser when he moved into her lane. He appeared to be laughing and talking to his passengers. After Fraser moved so as to be behind appellant’s car, she saw the warning sign. Bonato, in appellant’s car, also saw it and warned appellant he had better move over. Appellant had no room to move to the right. Appellant was going faster than the car in front of him. Apparently in order to avoid hitting the car in front of him, appellant veered to the left, into the median strip.
Two highway construction workers, Armando Rentoria and Antonio Fernandez, were standing at the rear of the warning sign truck, between the truck and the center divider. Appellant’s car struck the workers and the warning sign truck, knocking it into traffic. Appellant’s car struck the center
Appellant, although bleeding, got out of his car and moved beer cans into a cooler. Appellant shook the dead body of Rentoria and told the unconscious Fernandez to get up and show he was all right. Appellant resisted instructions of Highway Patrol officers to sit down. Arrested and taken to a hospital, appellant had a blood-alcohol level of .22 percent. After falling asleep and waking up handcuffed to a hospital bed and being told he was under arrest for killing two people, appellant said, “Fuck ’em. They shouldn’t have been out there in the first place.”
Defense
Appellant’s defense was to blame the construction company for not taking stronger precautions to protect its workers from such an accident.
Appellant presented evidence that when highway maintenance is performed by workers of the California Department of Transportation (CALTRANS), policy requires that a “shadow vehicle” known as an “attenuator truck” follow behind the workers. This equipment consists of a large, e.g., two-ton, truck with a cushion attached to its rear. It follows a reasonable distance behind the workers, where traffic might first begin to slow in response to conditions ahead. The idea is that if a vehicle veers into the area where the workers are, it will strike the cushioned attenuator truck, which will absorb the collision and possibly prevent the workers or other CALTRANS vehicles from being struck. This is expensive equipment, required for CALTRANS but not usually seen in private construction. There was a dispute at trial whether the CALTRANS policy applied to work performed by contract with CALTRANS, or otherwise established a safety standard of the industry. It was undisputed that MCM Construction did not have such equipment. Appellant’s expert opined that the use of an attenuator truck would have saved the victims in this case. A rebuttal expert for the prosecution opined that it would have made no difference because appellant would have gone in front of it.
Appellant’s experts also criticized placing the warning sign truck near a curve and beyond the overpass, making it more difficult to see from a long distance.
Contentions
Appellant contends: (1) the evidence is insufficient to support the convictions of second degree murder; (2) the court abused its discretion under
Sufficiency of Evidence
Appellant contends the evidence is insufficient to support conviction of two counts of second degree murder. We review this contention under the usual standard of the substantial evidence rule, resolving all conflicts in evidence and questions of credibility in favor of the verdict, and indulging every reasonable inference the jury could draw from the evidence.
(People
v.
David
(1991)
In People v. Watson, supra, 30 Cal.3d 290, the Supreme Court held that in appropriate circumstances a homicide caused by a drunk driver may be prosecuted as second degree murder. Second degree murder based on implied malice is shown when the defendant deliberately performed an act, the natural consequences of which are dangerous to life, knowing that the conduct endangers the life of another, but acting with conscious disregard for that risk of life. (Id. at pp. 296, 300.) Implied malice requires that the accused actually appreciated the risk involved. (Id. at pp. 296-297.)
Since
Watson,
numerous cases have upheld drunk driving murder convictions.
(People
v.
Olivas
(1985)
Appellant drove with a blood-alcohol level of .22 percent. Throughout the day, appellant drove and drank, drove to different locations and drank, drove to obtain more alcohol, and drank while driving. Appellant was speeding,
Appellant’s main attack on the sufficiency of evidence concerns his subjective awareness of the life-threatening consequences of his driving while intoxicated. Appellant distinguishes cases which rely upon a defendant’s prior exposure, upon previous drunk driving convictions, to mandatory educational programs on the dangers of drunk driving. Appellant points out that upon his prior convictions, he failed to attend the educational programs and merely served jail time. This distinction is not significant, however. First, appellant had four prior convictions of drunk driving. The jury could reasonably infer that the convictions alone, even without the educational programs, impressed upon appellant the dangers of drunk driving.
(People
v.
Johnson
(1994)
Appellant argues the accident occurred in an area of decreased visibility and a blind curve. The jury was entitled to discount the significance of this, in light of testimony of other motorists that the sign was clearly visible from a distance and that traffic was able to continue without incident.
Substantial evidence supports the verdict.
Admissibility of Probation Officer Evidence
Prior to trial, appellant moved under Evidence Code section 352 to exclude testimony by probation officers James Jenkins and Grace Pride. Appellant’s primary point was that, as to Jenkins, appellant was on probation for a theft offense, not a drunk driving offense. Appellant contended that drunk driving was not the primary focus of the Jenkins probation, and that the probative value of Jenkins’s testimony was outweighed by the danger of prejudice the jury would wonder what other crimes appellant had committed. After the trial court overruled appellant’s objection, the parties stipulated to the jury that appellant’s probation was general (the crime was not disclosed) and did not have a primary focus on the dangers of drinking and driving.
Jenkins’s testimony that he told appellant he should not drink and drive was highly probative because it occurred
the same day as the accident,
April
Pride testified that during a home visit in October 1991, she told appellant, a single parent of two children, that he should not continue to drink and drive because “the consequence might be that he would kill another person or be killed himself and then leave his children without a parent at all.” Appellant responded he intended to remain sober and be there for his children. This advice was highly probative because it expressly referred to the dangers of killing someone.
The trial court did not abuse its discretion in concluding the probative value of the testimony outweighed any potential prejudicial effect.
(People
v.
Johnson, supra,
Instructions on Intervening Cause
Appellant contends the trial court gave confusing instructions on appellant’s causation defense and erred in refusing appellant’s requested instructions on intervening or superseding cause. Appellant’s defense was based on the failure of the construction company to provide an attenuator truck which might have protected the victims from impact.
Instructions Refused
In criminal prosecutions, the contributing negligence of the victim or a third party does not relieve the criminal actor of liability, unless the victim’s or third party’s conduct was the
sole
or
superseding
cause of the death.
(People
v.
Pike
(1988)
In the normal meaning of the words, and as stated in appellant’s own requested instructions, an “intervening” or “superseding” cause which relieves the criminal actor of responsibility is one which “breaks the chain of causation”
after
the defendant’s
original
act. In the circumstances of this case, the preexisting failure to provide a barrier which would have prevented the effects of appellant’s conduct cannot be an intervening or superseding cause, as a matter of law. The failure to provide an attenuator did not “break” the chain of causation; rather it was an
absence
of intervening force, which
failed to break
the chain of the natural and probable consequences of appellant’s conduct. We find guidance in
People
v.
McGee
(1947)
The Attorney General brings our attention to
People
v.
Glass
(1968)
Therefore, appellant was not entitled to the instructions he requested on intervening or superseding cause. 2
Instructions Given
The trial court properly gave the general instruction on cause, CALJIC No. 3.40 (1992 rev.).
3
This revision has received judicial approval as correctly embodying the principles of
People
v.
Roberts, supra,
2 Cal.4th
The trial court properly gave CALJIC No. 3.41 (1992 rev.)
4
on more than one cause. Appellant contends, “In the present matter, no evidence of a concurrent cause was presented in either the defense or the prosecution case.” To the contrary, appellant’s contention that the absence of an attenuator contributed to the deaths amounted to a contention of more than one concurrent cause and justified this instruction. As discussed,
ante,
only by appellant’s erroneous reasoning could the absence of an attenuator be called an “intervening” or “superseding” cause rather than a “concurrent” cause. Appellant’s tactic is readily understandable, because a superseding cause would relieve him of responsibility whereas a concurrent cause would not.
{People
v.
Pike, supra,
Finally, appellant suggests that CALJIC No. 3.41 improperly lessened the prosecution’s burden of proof, because it requires the defendant’s conduct to be (merely) a “substantial factor” in bringing about the deaths, rather than requiring that the defendant’s conduct cause the deaths as a direct, natural, and probable consequence.
{See People
v.
Pike, supra,
The trial court awarded total custody credit of 969 days, consisting of 646 days actual custody and 323 days conduct credit. The Attorney General points out in the respondent’s brief that appellant was entitled to only 322 days conduct credit.
Under Penal Code section 4019, two days of conduct credit is awarded for each increment of four days of actual custody; no conduct credit is awarded for increments of less than four days of actual custody.
(People
v.
Walkkein
(1993)
The trial court’s computational error resulted in a sentence unauthorized by law, which is subject to correction on a defendant’s appeal, even though brought to the court’s attention by the respondent’s brief and even though the correction increases the defendant’s term in custody.
{People
v.
Guillen
(1994)
Disposition
The judgment is modified to provide that the defendant has custody credit for 968 total days, including 322 days conduct credit. As so modified, the judgment is affirmed.
Epstein, Acting P. J., and Hastings, J., concurred.
Appellant’s petition for review by the Supreme Court was denied September 27, 1995.
Notes
Appellant’s requested instructions read:
“An intervening cause may or may not break the chain of causation from the original act and the victim’s death. fiO If the intervening cause is normal or reasonably foreseeable it is a dependent cause and does not relieve the defendant of liability. [IQ If the evidence raises a reasonable doubt as to whether an intervening cause was a normal and foreseeable result ofthe defendant’s original act, then you must find that defendant’s act was not the cause of death.”
“An intervening act may be so disconnected and unforeseeable as to be a superceding [sic] cause. In such a case, the defendant’s act will be a remote and not a proximate cause.”
“An unforeseeable intervening cause which breaks the cabin [sic] of causation from the original act is itself regarded as the cause of the death and relieves the original actor of criminal liability. fíQ If the evidence raises a reasonable doubt as to whether the unsafe condition created by MCM Construction was not a normal and foreseeable result of defendant’s original act, then you must find that defendant’s act was not the cause of death and acquit him.”
Alternatively, appellant suffered no prejudice, because the trial court in fact gave an instruction on intervening cause, an error favorable to appellant. The prosecutor correctly argued to the court that no instruction on intervening cause was warranted, but the trial court overruled that objection. Under compulsion of that ruling, the prosecutor offered an instruction, which the trial court preferred over appellant’s requested instructions. The prosecutor’s special instruction read: “If an intervening cause is a normal and reasonably forseeable [sic] result of the defendant’s original act, it will not relieve the defendant of liability. The consequences 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. [1 If an intervening act is so disconnected and unforeseeable, the defendant’s act will be considered remote. Thus, the defendant will be relieved of liability.” Appellant’s counsel used this instruction to make his point to the jury. In light of the instruction given, appellant fails to demonstrate prejudicial error.
(Soule
v.
General Motors Corp.
(1994)
CALJIC No. 3.40 (1992 rev.) read: “To constitute the crimes charged there must be in addition to the injuries or deaths an unlawful act which was a cause of the injuries or deaths. ['JO The law has its own particular way of defining cause. A cause of the injuries or deaths is an act that sets in motion a chain of events that produces as a direct, natural and probable
CAUIC No. 3.41 (1992 rev.) read: “There may be more than one cause of the injuries or deaths. When the conduct of two or more persons contributes concurrently as a cause of the injuries or deaths, the conduct of each is a cause of the injuries or deaths 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 injuries or deaths and acted with another cause to produce the injuries or deaths. [I If you find that the defendant’s conduct was a cause of injuries or deaths to other persons, then it is no defense that the conduct of some other person, even the injured or deceased person, contributed to the injuries or deaths.”
There is an independent reason that the record supports instruction on concurrent causes under CALJIC No. 3.41. Appellant’s expert suggested that another cause of the accident was placing the warning sign near a curve beyond an overpass, making it more difficult to see.