THE PEOPLE, Plaintiff and Respondent, v. WILLIAM DANIEL CADY, Defendant and Appellant.
No. D068582
Fourth Dist., Div. One.
Dec. 30, 2016.
7 Cal. App. 5th 134
COUNSEL
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.
IRION, J.-Arising from an incident in which William Daniel Cady drove his vehicle at an excessive and unsafe speed while intoxicated, resulting in an
Cady raises two contentions on appeal. First, he contends that the crime of driving under the influence of alcohol causing injury (
We conclude that the conviction in count 7 for driving under the influence of alcohol causing injury (
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 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 thе 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 vehicle as he went around a curve, causing the Escalade to roll at least five times, travel up an embankment and then slide back onto the freeway. Another vehicle then impacted the Escalade, causing the Escalade to spin to its final position. During the accident four of the passengers-Barr, Bednarski, Gilliam and Rodgers-were ejected from the vehicle. Bednarski and Gilliam died immediately from blunt force trauma. Barr and Rodgers were seriously injured, but survived. Becker died at the scene inside the Escalade from blunt force trauma. An accident reconstruction expert calculated that Cady was driving between 87 and 97 miles per hour when he lost control of the vehicle.
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 influenсe 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
II. DISCUSSION
A. The Offense of Driving Under the Influence of Alcohol Causing Injury Is Not 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 сausing 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
In deciding whether multiple convictions are barred because one offense is a lesser included offense of the other, we apply the “elements” test. (People v. Reed (2006) 38 Cal.4th 1224, 1229 [45 Cal.Rptr.3d 353, 137 P.3d 184].) ” ‘Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessаrily included in the former.’ . . . In other words, ” ‘[i]f a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former.’ ” ” (Sanders, supra, 55 Cal.4th at p. 737, citation omitted.) We therefore turn to the statutory elements of the two provisions at issue here.
As provided in
“California‘s first drunk driving statute, enacted in 1913, prohibited any ‘intoxicated person’ from driving a motor vehicle on a public highway. (Stats. 1913, ch. 326, § 17, p. 646; [citation].) The prohibition was later redefined as driving ‘under the influence’ of alcohol.” (People v. McNeal (2009) 46 Cal.4th 1183, 1192 [96 Cal.Rptr.3d 261, 210 P.3d 420] (McNeal). The crime of driving under the influence of drugs was added in 1927. (Stats. 1927, ch. 752, § 112, p. 1436 [making it unlawful for a person to drive when “under the influence of . . . narcotic drugs“].)
Apparently because prоsecutors were having difficulty obtaining convictions against persons who drove in an impaired state after having consumed
Prior to the current version of
The legislative history of 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
Case law from our Supreme Court has long defined what is required to establish that someone has driven under the influence of alcohol, as that term is used in
The same definition of “under the influence” applies to the crime of driving “under the combined influence of any alcoholic beverage and drug” in violation of
information to study and understand trends on the different types of substances involved in DUI incidents. [][] [Assembly Bill No. ]2552 will break up the code section of the law used by law enforcement to charge individuals for DUI into three sections. These new sections will allow state and local entities to collect arrest data that is more precise and that can reflect the actual numbers of alcohol, drug or a combination of alcohol and drugs. This type of data is critical
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, 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 and of itself to сause impairment, and experiences a synergistic effect with the narcotic that makes it unsafe to drive a vehicle. According to the People, because it is possible to be impaired by the combined influence of alcohol and a drug, when the same amount of alcohol consumed alone would not cause impairment, the crime of driving under the influence of alcohol is not a necessary lesser included offense of driving under the combined influence of alcohol and a drug. As we will explain, we agree.
As a matter of logic, there are several possible ways for a person to violate
Because a person does not necessarily violate
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 (
Cady contends that the trial court prejudicially erred in not instructing with the lesser included offense. “On appeal, we review independently the question whether the trial court improperly failed to instruct on a lesser included offense.” (People v. Souza (2012) 54 Cal.4th 90, 113 [141 Cal.Rptr.3d 419, 277 P.3d 118] (Souza).) As we will explain, Cady‘s argument fails for several reasons.
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 аppeal.
“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 [165 Cal.Rptr.3d 497, 314 P.3d 798], 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.)
Nevertheless, even in instances where the trial court errs by failing to instruct on a lesser included offense supported by the evidence, “the claim may be waived under the doctrine of invited error if trial counsel both ” ‘intentionally caused the trial court to err’ ” and clearly did so for tactical reasons. [Citation.] Invited error will be found . . . only if counsel expresses a deliberate tactical purpose in resisting or acceding to the complained-of instruction.” (Souza, supra, 54 Cal.4th at p. 114.) “[A] defendant may not invoke a trial cоurt‘s failure to instruct on a lesser included offense as a basis on which to reverse a conviction when, for tactical reasons, the defendant persuades a trial court not to instruct on a lesser included offense supported by the evidence. [Citations.] In that situation, the doctrine of invited error bars the defendant from challenging on appeal the trial court‘s failure to give the instruction.” (People v. Horning (2004) 34 Cal.4th 871, 905 [22 Cal.Rptr.3d 305, 102 P.3d 228] (Horning).)
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 chоice, or mistakenly believed the court was not giving it to counsel, 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
Here, the record overwhelmingly shows that defense counsel made a deliberate tactical choice to forgo an instruction on the lesser included offense to gross vehicular manslaughter. When discussing jury instructions, the following exchange took place between the trial court and defense counsel:
“The Court: Are you affirmativеly 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 counsel specifically stated, “It‘s undisputed that Mr. Cady operated a vehicle in a grossly negligent manner” and repeated the substance of that statement two other times during closing argument, conceding that Cady acted with gross negligence. In short, the
Accordingly, the record clearly shows that defense counsel “made a conscious tactical choice” to forgo 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 еvidence 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 [179 Cal.Rptr. 43, 637 P.2d
Here, the only conclusion that a reasonable juror could draw from the evidence presented at trial was that Cady acted with gross negligence. Although, as Cady points out, there was some dispute based on the testimony of Barr and Rodgers whether Cady was travelling at an excessive speed before he entered the transition ramp to State Route 52, it was undisputed that Cady drove at an excessive and unsafe speed as he entered the transition ramp. Further, it was undisputed that several passengers in the vehicle pleaded with Cady to slow down, but instead of heeding their advice, Cady accelerated to a speed of 87 to 97 miles per hour as he entered a curve, stating something such as “I‘ll drive this fucking car however the fuck I want.” Under the circumstances, the only reasonable conclusion is that Cady was aware of the risk posed by his excessive speed and had an opportunity to correct his behavior but, in consсious indifference to the consequences, Cady accelerated further and rejected the concerns of his passengers, leading to the deadly accident.5
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.
C. Any Error Was Harmless
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.
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 [106 Cal.Rptr.3d 459, 226 P.3d 949] [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 еrror was harmless.
III. DISPOSITION
The judgment is affirmed.
McConnell, P. J., and Aaron, J., concurred.
Appellant‘s petition for review by the Supreme Court was denied March 22, 2017, S239879.