THE PEOPLE, Plaintiff and Respondent, v. WILLIAM DANIEL CADY, Defendant and Appellant.
D068582
COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Filed 10/20/16
CERTIFIED FOR PUBLICATION; (Super. Ct. No. SCD253340)
Cannon & Harris and Donna L. Harris, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Junichi P. Semitsu, Deputy Attorneys General, for Plaintiff and Respondent.
Arising from an incident in which William Daniel Cady drove his vehicle at an
Cady raises two contentions on appeal. First, he contends that the crime of driving under the influence of alcohol causing injury (
I. FACTUAL AND PROCEDURAL BACKGROUND
On the evening of January 10, 2014, Cady and his friends Dustin Barr, Jeff Becker, Taylor Bednarski, Shon Gilliam and Trevor Rodgers drove in Cady‘s Cadillac Escalade for a night of drinking in local bars in San Diego. After leaving the second bar at around 11:00 p.m., the group got back into the Escalade, and Cady drove onto Interstate 805 toward the transition ramp to State Route 52, with the goal of returning back to Bednarski and Rodgers‘s house.
As Cady approached the transition to State Route 52 he was traveling at a high rate of speed, and several of his passengers told him to slow down. Cady replied with a statement such as, “I‘ll drive this fucking car however the fuck I want,” and then accelerated further. One witness also remembered Cady laughing like somebody who “lost their mind” as he accelerated. Shortly after accelerating, Cady lost traction on his
Based on a blood draw from Cady after the accident, an expert concluded that depending on whether the alcohol that Cady had consumed that evening was already fully absorbed into his system, Cady‘s blood alcohol level during the accident was between 0.1 and 0.18. Another expert testified that based on an analysis of the cannabinoids in Cady‘s blood drawn at 2:18 a.m., Cady had used marijuana within hours of the blood draw, and the level of active cannabinoids would have been significantly higher during the accident than during the blood draw. The expert witness testified that the combination of active marijuana with alcohol produces an “additive effect,” which is an increase in the impairing effect of both drugs, so that “the combination of those two [drugs] at the same time produces an effect greater than either substance on its own.”
Cady was tried on three counts of second degree murder (
At trial, defense counsel stated during closing argument that Cady was taking responsibility for the gross vehicular manslaughter charges in counts 4 through 6 and the driving under the influence charges in counts 7 through 9. He urged the jury to return a verdict of guilty on those counts but to find Cady not guilty on the murder counts.
The jury found Cady not guilty of murder, but found him guilty of all of the other counts and made true findings on all of the factual allegations.
The trial court sentenced Cady to 18 years in prison, selecting count 8 as the principal term, with the sentences on each of the other counts stayed pursuant to
A. The Offense of Driving Under the Influence of Alcohol Causing Injury Is a Lesser Included Offense of Driving Under the Combined Influence of Alcohol and a Drug Causing Injury
We first consider Cady‘s argument that he should not have been convicted in count 7 for driving under the influence of alcohol causing injury (
Although “it is generally permissible to convict a defendant of multiple charges arising from a single act or course of conduct[,]” a ” ‘judicially created exception to this rule prohibits multiple convictions based on necessarily included offenses. . . .’ . . . [¶] When a defendant is found guilty of both a greater and a necessarily lesser included offense arising out of the same act or course of conduct, and the evidence supports the verdict on the greater offense, that conviction is controlling, and the conviction of the lesser offense must be reversed.” (People v. Sanders (2012) 55 Cal.4th 731, 736 (Sanders), italics & citations omitted.) Based on this principle, Cady contends that he should not have been convicted for violating
As provided in
Prior to the current version of
The legislative history for the current version of the statute shows that the crimes of driving under the influence of alcohol, driving under the influence of drugs and driving under the combined influence of alcohol and drugs were separated into three different subdivisions of
In comparing the two provisions, we note that a requirement of both crimes is that the defendant be “under the influence.” A person is “under the influence” within the meaning of the Vehicle Code if the intoxicating substance ” ‘so far affected the nervous system, brain or muscles as to impair to an appreciable degree the ability to operate the vehicle in a manner like that of an ordinarily prudent and cautious person in the full possession of his faculties, using reasonable care and under like conditions.’ ” (People v. Haeussler (1953) 41 Cal.2d 252, 261; see also People v. Canty (2004) 32 Cal.4th 1266, 1278; Byrd v. Municipal Court (1981) 125 Cal.App.3d 1054, 1058.) In short, a person is under the influence of a substance if that substance causes an impairment to the ability to operate a vehicle.
The People argue that a person under the combined influence of drugs and alcohol is not necessarily also under the influence of alcohol because, in certain circumstances, the impairment in the ability to operate a vehicle would not have arisen had the person consumed the alcohol by itself. Specifically, the People posit a situation in which a person combines a prescription narcotic drug with a small amount of alcohol, not sufficient in itself to cause impairment, and experiences a synergistic sedative effect with
Even in instances when drugs and alcohol act in combination to cause impairment that would not have existed had only the alcohol been consumed, the consumption of alcohol is still one of the necessary causes of the impairment in such a circumstance. The person under the influence of the synergistic effect of drugs and alcohol would not have become impaired unless he or she consumed alcohol. The drugs may have amplified the impairing effects of a small amount of alcohol, but it is nevertheless true that the consumption of alcohol caused the impairment. Therefore, even in the circumstance where drugs increase the impairing effects of the alcohol, a person under the combined influence of drugs and alcohol is necessarily also under the influence of alcohol.
We therefore conclude that under the elements test, the crime of driving under the influence of alcohol causing injury (
We will accordingly reverse Cady‘s conviction in count 7 on the lesser included offense of driving under the influence of alcohol causing injury (
B. Cady‘s Contention That the Trial Court Should Have Instructed on the Lesser Included Offense of Vehicular Manslaughter While Intoxicated Lacks Merit
For counts 4 through 6, in which Cady was charged with gross vehicular manslaughter while intoxicated (
1. Any Error in Failing to Instruct with the Lesser Included Offense Was Invited by Cady, and Thus Cady May Not Raise the Issue of Error on Appeal
The first issue is whether Cady‘s argument fails because any error in failing to instruct on the lesser included offense was invited by Cady, barring him from raising the error on appeal.
“A trial court has a sua sponte duty to ‘instruct on a lesser offense necessarily included in the charged offense if there is substantial evidence the defendant is guilty only of the lesser.’ . . . Substantial evidence in this context is evidence from which a reasonable jury could conclude that the defendant committed the lesser, but not the greater, offense. . . . [T]he court need instruct the jury on a lesser included offense only ‘[w]hen there is substantial evidence that an element of the charged offense is missing, but that the accused is guilty of ’ the lesser offense.” (People v. Shockley (2013) 58 Cal.4th 400, 403-404, citations omitted (Shockley).) A trial court errs in failing to instruct on a lesser included offense supported by the evidence ” ’ “even when as a matter of trial tactics a defendant not only fails to request the instruction but expressly objects to its being given.” ’ ” (Souza, supra, 54 Cal.4th at p. 114.)
For us to find that the doctrine of invited error applies, “the record must show only that counsel made a conscious, deliberate tactical choice between having the instruction and not having it. If counsel was ignorant of the choice, or mistakenly believed the court was not giving it to him, invited error will not be found. If, however, the record shows this conscious choice, it need not additionally show counsel correctly understood all the legal implications of the tactical choice. Error is invited if counsel made a conscious tactical choice.” (People v. Cooper (1991) 53 Cal.3d 771, 831 (Cooper).)
Here, the record overwhelmingly shows that defense counsel made a deliberate tactical choice to forego an instruction on the lesser included offense to gross vehicular
“The Court: Are you affirmatively requesting that court not provide [lesser included offenses]?
“[Defense counsel]: I am.
“The Court: Because as I read it, I have a sua sponte duty. And in some cases even over the defense objection, to provide [lesser included offenses].
“[Defense counsel]: We let me — my view is, based on our opening statement and our overall strategy, is we are admitting guilt as to counts 4 through 9. I don‘t see any utility in requesting [lesser included offenses] on any of those. . . . So because of that, that‘s why I‘m . . . asking the court to not give those. That‘s my train of thought.
“The Court: Yes. And so long as the court is convinced that there‘s no way that the conduct in this case is something less than what the greater charge is, then the court doesn‘t have to give [a lesser included offense] under those circumstances. Basically, we‘re in agreement that the facts, as they‘ve been presented in the case, are no less than a vehicle manslaughter while intoxicated with gross negligence.
“[Defense counsel]: Okay.”
The prosecutor concurred with the approach of not instructing on lesser included offenses, and the trial court then inquired whether defense counsel had discussed the particular strategy with Cady and whether Cady was in agreement. Defense counsel indicated that Cady had agreed with the strategy.
Consistent with the strategy selected by defense counsel, during closing argument defense counsel stated to the jury that Cady was taking responsibility for committing gross vehicular manslaughter as charged in counts 4 through 6 and argued that the jury should find him guilty on those counts but find him not guilty of murder. Defense
Accordingly, the record clearly shows that defense counsel “made a conscious tactical choice” to forego the instruction on the lesser included offense. (Cooper, supra, 53 Cal.3d at p. 831.) As Cady specifically invited the trial court not to instruct on the lesser included offense, he ” ‘may not invoke a trial court‘s failure to instruct on a lesser included offense as a basis on which to reverse a conviction.’ ” (Horning, supra, 34 Cal.4th at p. 905.)4
2. An Instruction on a Lesser Included Offense to Gross Vehicular Manslaughter While Intoxicated Was Not Supported by the Evidence at Trial
As we have explained, an instruction on a lesser included offense must be given ” ‘if there is substantial evidence the defendant is guilty only of the lesser.’ . . . Substantial evidence in this context is evidence from which a reasonable jury could conclude that the defendant committed the lesser, but not the greater, offense.” (Shockley, supra, 58 Cal.4th at p. 403, citation omitted.) Thus, the trial court here was required to instruct on vehicular manslaughter without gross negligence (
Gross negligence is “defined as the exercise of so slight a degree of care as to raise a presumption of conscious indifference to the consequences.” (People v. Watson (1981) 30 Cal.3d 290, 296.) ” ‘The state of mind of a person who acts with conscious indifferences to the consequences is simply, “I don‘t care what happens.” ’ ” (People v. Bennett (1991) 54 Cal.3d 1032, 1036objective test: if a reasonable person in defendant‘s position would have been aware of the risk involved, then defendant is presumed to have had such an awareness.” (Watson, at p. 296.)
As there was no “[s]ubstantial evidence . . . from which a reasonable jury could conclude that the defendant committed the lesser, but not the greater, offense” (Shockley, supra, 58 Cal.4th at p. 403), we conclude that the trial court properly declined to instruct on the lesser included offense to gross vehicular manslaughter while intoxicated.
Even if there was any basis to Cady‘s contention that the trial court erred in failing to instruct with the lesser included offense to gross vehicular manslaughter while intoxicated, Cady would be unable to establish prejudicial error.
“Error in failing to give a lesser included instruction is reviewed for prejudice under the People v. Watson (1956) 46 Cal.2d 818 standard.” (People v. Walker (2015) 237 Cal.App.4th 111, 115.) Under that standard, reversal is warranted only if it appears “reasonably probable” the defendant would have obtained a more favorable outcome had the error not occurred. (Watson, at p. 836.)
We may consider defense counsel‘s statements during closing argument when determining whether an error in instructing the jury was prejudicial. (People v. D‘Arcy (2010) 48 Cal.4th 257, 297 [the trial court‘s error in failing to instruct that the special circumstance of murder in the commission of mayhem is inapplicable if the mayhem was merely incidental to the murder was harmless because defense counsel did not argue that the mayhem was merely incidental].) Here, as we have explained, during closing argument defense counsel repeatedly stated that Cady‘s actions amounted to gross vehicular manslaughter and urged the jury to return a guilty verdict on counts 4 through 6. Based on defense counsel‘s concession that Cady was guilty of gross vehicular manslaughter while intoxicated, it is not reasonably probable that the jury would have found Cady guilty of the lesser included offense of vehicular manslaughter without gross negligence while intoxicated had it been given that option. Therefore, even if Cady could establish that the trial court erred, any error was harmless.
The conviction in count 7 for driving under the influence of alcohol causing injury (
IRION, J.
WE CONCUR:
MCCONNELL, P. J.
AARON, J.