People v. Heinzel CA4/1 ( 2014 )

Filed 7/8/14 P. v. Heinzel CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D063503
Plaintiff and Respondent,
v. (Super. Ct. No. SCN299323)
KATHERINE HEINZEL,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Daniel B.
Goldstein, Judge. Reversed and remanded for further proceedings.
George L. Schraer, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Lynne G. McGinnis and Eric A.
Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
A jury found Katherine Heinzel guilty of gross vehicular manslaughter while
intoxicated (Pen. Code, § 191.5, subd. (a))1 (count 1); driving under the influence
causing injury (Veh. Code, § 23153, subd. (a)) (count 2); and driving while having an
elevated blood alcohol level causing injury (Veh. Code, § 23153, subd. (b)) (count 3).
With respect to all three counts, the jury found that Heinzel inflicted great bodily injury
within the meaning of section 12022.7, subdivision (a) against two different victims, and
that she caused bodily injury to more than one victim within the meaning of Vehicle
Code section 23558.
The trial court sentenced Heinzel to an aggregate term of nine years in prison. As
to count 1, the trial court imposed the middle term of six years on the substantive offense,
and a consecutive term of three years for one of the two great bodily injury (§ 12022.7,
subd. (a)) enhancements. The court stayed imposition of sentence on the other great
bodily injury enhancement and the multiple victim enhancement. As to counts 2 and 3,
the trial imposed several additional terms of imprisonment to run concurrently with the
sentence imposed on count 1.
In order to find Heinzel guilty of gross vehicular manslaughter while intoxicated
(§ 191.5, subd. (a)) (count 1), the jury was required to find that Heinzel drove under the
1 All subsequent statutory references are to the Penal Code, unless otherwise
specified.
2
influence (or drove with an elevated blood alcohol level) and that she committed a
separate unlawful act, among other elements. Similarly, in order to find Heinzel guilty
of driving under the influence causing injury (Veh. Code, § 23153, subd. (a)) (count 2),
the jury was required to find that Heinzel drove under the influence and that she either
committed a separate illegal act or neglected to perform any duty imposed by law.
Likewise, in order to find Heinzel guilty of driving while having an elevated blood
alcohol level causing injury (Veh. Code, § 23153, subd. (b)) (count 3), the jury was
required to find that Heinzel drove with an elevated blood alcohol level and that she
committed a separate illegal act or neglected to perform any duty imposed by law.
Despite the statutory requirement that the jury find that Heinzel committed a
separate unlawful act,2 other than driving under the influence or driving with an elevated
blood alcohol level, in order to find her guilty on counts 1, 2 and 3, the trial court
instructed the jury in a manner that permitted the jury to find that Heinzel's driving under
the influence and/or driving with an elevated blood alcohol level satisfied the unlawful
act element of the offenses charged in those counts.3 Heinzel claims that the trial court
committed reversible error in so instructing. We agree and reverse the judgment.4
2 For ease of reference, we refer to the requirement in counts 2 and 3 that Heinzel
have committed a separate illegal act or neglected to perform any duty imposed by law as
a requirement that Heinzel have committed a separate unlawful act.
3 In her opening brief, Heinzel raised a claim of instructional error only as to count
1. We determined that Heinzel's instructional argument appeared to be equally applicable
to her convictions on counts 2 and 3, and requested supplemental briefing from the
3
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. The People's evidence
1. The collision
On November 19, 2011, at approximately 1:50 a.m., Davionne Kelly was driving a
Toyota sedan northbound on Interstate 15 (I-15) in northern San Diego County. Brian
Morast and Kris Walker were passengers in Kelly's car. Heinzel was driving a Nissan
sedan in the same direction. As the vehicles approached a curve, Heinzel's car struck
Kelly's car from behind.
The impact caused both vehicles to careen into a guardrail, which gave way,
sending them over a cliff. Heinzel's car rolled a few times as it went down the
embankment, and came to rest about 75 feet from the top. Kelly's car also rolled several
times and came to rest approximately 294 feet down the cliff.
Kelly died at the scene from blunt force injuries that he sustained as a result of the
collision. Morast suffered serious, life threatening injuries, including bleeding in his
parties. In her supplemental letter brief, Heinzel argued that the court committed
reversible instructional error with respect to counts 2 and 3. The People contended in
their supplemental letter brief that the trial court did not err in instructing the jury on
counts 2 and 3, and in the alternative, that any instructional error was harmless.
4 Heinzel also contends that her convictions on counts 2 and 3 must be reversed
because they are lesser included offenses of the offense charged in count 1, and that the
trial court was required to strike the great bodily injury enhancements (§ 12022.7, subd.
(a)) on count 1. In light of our reversal of the judgment, we need not consider these
additional contentions.
4
brain, multiple fractures, and punctured lungs. Walker also suffered injuries, including a
cut to his head that required 17 stitches.
2. Accident reconstruction testimony
Scott Parent, a California Highway Patrol officer and an investigator for the
Multidisciplinary Accident Investigation Team (MAIT), performed an accident
reconstruction analysis as part of his investigation. Parent's investigation included taking
measurements at the crash site and analyzing damage to the vehicles. Parent also
attempted to estimate the likely speeds of the vehicles just prior to the crash by
performing an analysis of the impact of the vehicles to the guardrail, as well as by
conducting skid testing.
In Parent's opinion, just prior to the crash, Kelly was traveling at between 58 and
68 miles per hour, and Heinzel was traveling between 91 and 101 miles per hour. Parent
concluded that Heinzel's car was straddling two lanes when it struck Kelly's car from
behind, causing both vehicles to rotate in a clockwise manner, hit the guardrail, and then
roll down the embankment. According to Parent, Heinzel violated at least three traffic
infractions: straddling lanes (Veh. Code, § 21658, subd. (a)); driving on a freeway in
excess of 70 miles per hour (Veh. Code, § 22356, subd. (b)); and driving faster than the
posted speed limit (Veh. Code, § 22348, subd. (a)).
Ernest Phillips, an accident reconstruction specialist employed by the County of
San Diego, also performed an accident reconstruction analysis of the collision. Phillips
reviewed various reports, including the MAIT report, as part of his investigation. In
5
addition, Phillips conducted a form of computer analysis called "simulation modeling"
that relies on "physical evidence from the ground" including information about the
vehicles involved in the collision and tire markings, to generate a model of the locations
and speeds of the vehicles just prior to the crash. Phillips estimated that Heinzel's Nissan
was traveling at a rate of 90 miles per hour just prior to the crash, and that Kelly's car was
going 70 miles per hour. Phillips further concluded that tire marking evidence
demonstrated that Heinzel's car was straddling two lanes just before it struck the left rear
side of Kelly's car.
3. Heinzel's intoxication
Several individuals who encountered Heinzel just after the accident, including a
responding police officer and a paramedic, stated that Heinzel smelled of alcohol. A
sample of Heinzel's blood taken nearly two hours after the collision revealed a blood
alcohol level of between 0.10 and 0.11 percent. Another sample, taken nearly an hour
later, showed a blood alcohol content of .09 percent. Raegan Carter, a criminalist with
the San Diego County Sheriff's Department, testified that at the time of the collision,
Heinzel's blood alcohol level could have been as high as 0.14 percent.
6
4. Heinzel's awareness of the risks of driving under the influence
Heinzel was a Newport Beach police officer from 1986 until 1994. During that
time, she received training on Vehicle Code violations, alcohol violations, traffic accident
investigations, driving under the influence of alcohol, and vehicle operation generally.
B. The defense
California Highway Patrol Officer Mark Latulippe was responsible for preparing a
diagram of the accident scene. Latulippe's diagram depicted tire markings on the
roadway made by the vehicles involved in the collision. Officer Latulippe acknowledged
that he transposed the labeling of the vehicles on the diagram's legend, such that tire
markings on the diagram that he attributed to Heinzel's car were in fact made by the
victims' car, and vice versa.
Stephen Plourd, a defense investigator, took a radar speed survey between 1:18
a.m. and 2:19 a.m. on September 15, 2012, at a location on I-15 near the site of the
collision. Plourd testified that the average speed of the vehicles in his survey was 79.61
miles per hour, that 23 percent of the vehicles in his survey were traveling at speeds in
excess of 80 miles per hour, and that 15 percent of those vehicles were traveling at speeds
in excess of 85 miles per hour.
7
III.
DISCUSSION
The trial court committed reversible error in instructing the jury in a manner that
permitted the jury to find that Heinzel's conduct in driving under the influence (and/or
driving with an elevated blood alcohol level) satisfied the "unlawful act" element of the
offenses charged in counts 1, 2 and 3
Heinzel claims that the trial court committed reversible error in instructing the jury
with respect to counts 1, 2 and 3, in a manner that permitted the jury to find that her
driving under the influence or driving with an elevated blood alcohol level satisfied the
unlawful act element of each of the charged offenses.
A. Standard of review and general principles of law governing jury instruction
claims
We review de novo a defendant's claim that the trial court's jury instructions did
not correctly state the law. (People v. Posey (2004) 32 Cal. 4th 193, 218.) "Review of the
adequacy of instructions is based on whether the trial court 'fully and fairly instructed on
the applicable law.' [Citation.]" (People v. Ramos (2008) 163 Cal. App. 4th 1082, 1088.)
In determining whether error has been committed in giving jury instructions, we consider
the instructions as a whole and assume that jurors are intelligent persons, capable of
understanding and correlating all jury instructions that are given. (Ibid.)
8
B. The charged offenses
1. Gross vehicular manslaughter while intoxicated (§ 191. 5, subd. (a))
(count 1)
Section 191.5, subdivision (a) provides:
"Gross vehicular manslaughter while intoxicated is the unlawful
killing of a human being without malice aforethought, in the driving
of a vehicle, where the driving was in violation of Section 23140
[driving with an elevated blood alcohol level as a minor], 23152
[driving under the influence or driving with an elevated blood
alcohol level], or 23153 [driving under the influence or driving with
an elevated blood alcohol level and causing injury] of the Vehicle
Code, and the killing was either the proximate result of the
commission of an unlawful act, not amounting to a felony, and with
gross negligence, or the proximate result of the commission of a
lawful act that might produce death, in an unlawful manner, and with
gross negligence." (Italics added.)
In People v. Soledad (1987) 190 Cal. App. 3d 74, 81 (Soledad), the defendant was
convicted of three counts of vehicular manslaughter with gross negligence involving
alcohol (counts I, II and III) pursuant to former section 192, subdivision (c)(3),5 as well
as driving while under the combined influence of alcohol and a drug causing injury (Veh.
Code, § 23153, subd. (a)) (count IV) and driving with a blood alcohol level of 0.10
percent causing death and bodily injury (Veh. Code, § 23153, subd. (b)). With respect to
the counts charging gross vehicular manslaughter while intoxicated, the Soledad court
noted that "[former] Section 192, subdivision (c)(3) requires the driving of a vehicle in
5 The statute at issue in Soledad (former § 192, subd. (c)(3)) did not differ in any
material respect from section 191.5, subdivision (a). (See Soledad, supra, 190
Cal.App.3d at pp. 79-80, quoting former § 192, subd. (c)(3).)
9
violation of Vehicle Code section 23152 or 23153 and the commission of an 'unlawful
act' not amounting to a felony." (Soledad, supra, 190 Cal.App.3d at p. 82.)
The trial court in Soledad instructed the jury that in order to find the defendant
guilty of vehicular manslaughter with gross negligence involving alcohol, it had to find,
among other elements, that the defendant " 'committed an unlawful act, to wit, a violation
of Section 23153. . . .' " (Soledad, supra, 190 Cal.App.3d at p. 81.) In describing another
element of the crime, the trial court "duplicated the unlawful act" set forth above and
instructed the jury as follows: " '[A]nd four, that the driver of the vehicle also violated
Vehicle Code Section 23153.' " (Soledad, supra, at p. 81.) The Soledad court concluded
that by referring to Vehicle Code section 23153 rather than another "unlawful act" as
required by the statute, "the trial court erroneously omitted the 'unlawful act' element of
vehicular manslaughter." (Ibid; see People v. Thompson (2000) 79 Cal. App. 4th 40, 64
["the [Soledad] court concluded that such dual use was error because, in effect, it
eliminates the 'unlawful act' element of gross vehicular manslaughter"].)
The Soledad court "reject[ed] the People's contention the instructional error was
harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24
[(Chapman)])." (Soledad, supra, 190 Cal.App.3d at p. 82.) Specifically, the court
rejected the People's contention that the jury's guilty verdict on count IV demonstrated
10
that the jury had found that the defendant had committed the unlawful act of speeding. 6
The Soledad court reasoned:
"To begin, the People's argument fails upon a mere reading of the
record before us. While count IV of the information did allege that
defendant violated section 23153, subdivision (a), of the Vehicle
Code by driving a vehicle under the influence of an alcoholic
beverage and speeding, the information was not reread to the jury at
the time of instruction and argument. The instruction read to the jury
as to count IV (and V), CALJIC No. 12.60, 'Felony Driving Under
the Influence,' did not refer to speeding as the necessary additional
'act forbidden by law,' and the verdict form signed by the jury
foreman as to count IV read as follows: 'We, the jury in the above
entitled matter, find the defendant, Timothy Ray Soledad, guilty of
driving under the influence and causing death, a violation of Section
23153(a) of the Vehicle Code as charged in Count Four of the
Information on file herein.' " (Soledad, supra, 190 Cal.App.3d at p.
82.)
After rejecting the People's harmless error argument, the Soledad court concluded
that the trial court's instructional error required reversal of the vehicular manslaughter
6 Specifically, the People argued:
" 'There is no question that the jury found that appellant was
speeding, in violation of Vehicle Code section 22350, because they
found him guilty on Count IV, which alleged that appellant was
speeding while under the influence of alcohol . . . . Thus, although
CALJIC No. 8.90.1 did not properly specify that the unlawful act
involved was that of speeding, the instructions read as a whole did
convey to the jury that the unlawful act inherently dangerous to
human life and safety required for vehicular manslaughter, was the
act of speeding. The evidence was undisputed that appellant was
speeding as he entered the curve and drove off through the guardrail.
The jury in fact found that appellant was speeding while driving
while under the influence. Thus, any instructional error was
harmless beyond a reasonable doubt.' " (Soledad, supra, 190
Cal.App.3d at pp. 81-82.)
11
with gross negligence involving alcohol counts (counts I, II, and III). In reaching this
conclusion, the court reasoned:
"Here, the trial court neglected to properly instruct the jury as to the
necessary elements of [former] section 192, subdivision (c)(3) and
failed to require the jury to find the defendant committed an
'unlawful act, not amounting to a felony' while driving a vehicle in
violation of Vehicle Code section 23152 or 23153 (counts I, II and
III). In addition, the trial court failed to include in its verdict forms
as to counts I through V any reference to or requirement of the
commission of an 'unlawful act' or 'any act forbidden by law' as
required by the relevant Vehicle Code sections before a finding of
'guilty' could be returned. Thus, the jury was neither instructed nor
advised at anytime that it must make a finding on the unlawful act
element of vehicular manslaughter. Upon these facts, we cannot
find the instructional error was harmless beyond a reasonable doubt
and the convictions as to counts I, II and III must be reversed."
(Soledad, supra, 190 Cal.App.3d at pp. 82-83.)
2. Driving a vehicle under the influence and causing injury (Veh. Code,
§ 23153, subd (a))(count 2) and driving a vehicle with an elevated blood
alcohol level causing injury (Veh. Code, § 23153, subd. (b))(count 3)
Vehicle Code section 23153 provides in relevant part:
"(a) It is unlawful for a person, while under the influence of any
alcoholic beverage to drive a vehicle and concurrently do any act
forbidden by law, or neglect any duty imposed by law in driving the
vehicle, which act or neglect proximately causes bodily injury to any
person other than the driver.
"(b) It is unlawful for a person, while having 0.08 percent or more,
by weight, of alcohol in his or her blood to drive a vehicle and
concurrently do any act forbidden by law, or neglect any duty
imposed by law in driving the vehicle, which act or neglect
proximately causes bodily injury to any person other than the
driver." (Italics added.)
12
In People v. Minor (1994) 28 Cal. App. 4th 431, 436 (Minor), this court held that
"the trial court committed reversible error by failing to explicitly instruct the jury that it
had to find [the defendant] committed a legal infraction other than driving under the
influence to convict him of violating [Vehicle Code] sections 23153, subdivision (a), and
23153, subdivision (b)." (Italics added.) The Minor court noted that the law was clear
that in order to establish a violation of either Vehicle Code section 23153, subdivision (a)
(driving under the influence causing injury) or Vehicle Code section 23153, subdivision
(b) (driving with an elevated blood alcohol level and causing injury), "the evidence must
show an unlawful act or neglect of duty in addition to driving under the influence."
(Minor, supra, at p. 438.)
The Minor court explained the trial court's instructional error as follows:
"[W]ith respect to the felony drunk driving charges, the trial court
read CALJIC No. 12.60, which includes only the phrase 'did some
act which violated the law or failed to perform some duty required
by law . . . .' Because the trial court did not reference the applicable
Vehicle Code violations with respect to Minor's felony drunk driving
counts, the jury very well may have concluded it did not have to find
any Vehicle Code violation to convict him on these counts.
Inasmuch as the jury could have convicted Minor without finding all
of the requisite elements under this instructional charge, we are
compelled to find error in this case." (Minor, supra, 28 Cal.App.4th
at p. 438, fn. omitted.)
In considering whether the error required reversal, the Minor court applied
Chapman and concluded that the jury could have had a reasonable doubt as to whether
the defendant committed a Vehicle Code violation other than driving under the influence
"based upon problems with the credibility of the prosecution's eyewitness." (Minor,
13
supra, 28 Cal.App.4th at p. 438, fn. 3.) The Minor court also concluded that a suggestion
made by the prosecutor in closing argument, "that felony drunk driving requires Vehicle
Code violations" (id. at p. 439), did not "render the instructional error harmless in the
face of the lengthy instructions by the trial court." (Ibid.) Accordingly, the Minor court
concluded, "we cannot say the error was harmless beyond a reasonable doubt.
(Chapman[, supra,] 386 U.S. [at p. 24].)" (Ibid.)
C. The challenged jury instructions
1. Gross vehicular manslaughter while intoxicated (count 1)
The trial court instructed the jury with respect to the charged offense of gross
vehicular manslaughter while intoxicated (§ 191.5, subd. (a)) (count 1) pursuant to a
modified version of CALCRIM No. 590, in relevant part as follows:
"[T]he defendant is charged in count 1 with gross vehicular
manslaughter while intoxicated, in violation of Penal Code section
191.5[, subdivision] (a).
"To prove the defendant is guilty of the crime, the People must
prove that: One, the defendant drove under the influence of an
alcoholic beverage or drove while having a blood alcohol level of
.08 or higher; two, while driving a vehicle under the influence of an
alcoholic beverage, the defendant also committed a misdemeanor or
infraction, or otherwise lawful act that might cause death; three, the
defendant committed the misdemeanor or infraction, or otherwise
lawful act that might cause death with gross negligence; and four,
the defendant's gross[ly] negligen[t] conduct caused the death of
another person.
"The People allege that the defendant committed the following
misdemeanors or infractions: Vehicle Code section 23152[,
subdivision] (a), driving under the influence of alcohol; Vehicle
code section 23152[, subdivision] (b), driving while having a blood
14
alcohol level of 0.08 or higher; Vehicle Code section 22348[,
subdivision] (a), driving faster than the posted speed limit; Vehicle
Code section 22356[, subdivision] (b), driving over 70 miles an
hour; Vehicle Code section 21658, driving not entirely within a
single lane and moving from the lane without reasonable safety.
"Instruction 2110 tells you what the People must prove in order to
prove that the defendant committed [a violation of] Vehicle Code
section 23152[, subdivision] (a), driving under the influence of
alcohol.
"Instruction 2111 tells you what the People must prove in order to
prove that the defendant committed [a violation of] Vehicle Code
section 23152[, subdivision] (b), driving while having a blood
alcohol [level] of 0.08 or [higher].
"Instruction 595 tells you what the People must prove in order to
prove that the defendant committed [a violation of] Vehicle Code
section 22348[, subdivision (a)], driving faster than the posted speed
limit; [Vehicle Code section] 22356[, subdivision] (b), driving over
70 miles an hour; Vehicle Code section 21658, driving not entirely
within a single lane and moving from the lane without reasonable
safety.
"[¶] . . . . [¶]
"The combination of driving a vehicle while under the influence of
[an] alcoholic beverage and violating a traffic law is not enough, by
itself, to establish gross negligence. In evaluating whether the
defendant was acting with gross negligence, consider the level of the
defendant's intoxication, if any; the way the defendant drove, and
any other relevant aspects of the defendant's conduct.
"[¶] . . . . [¶]
"The People allege that the defendant committed the following
misdemeanors or infractions: driving under the influence of alcohol;
driving with a measurable blood alcohol level; driving faster than
the posted speed limit; driving over 70 miles an hour; driving not
entirely within the lane and moving when not safe to do so. You may
not find the defendant guilty unless all of you agree that the People
15
have proved that the defendant committed at least one of those
alleged misdemeanors or infractions and you all agree on which
misdemeanor or infraction." (Italics added.)
2. Driving a vehicle under the influence and causing injury (count 2)
and driving a vehicle with an elevated blood alcohol level (count 3)
The trial court instructed the jury with respect to the charged offense of driving a
vehicle under the influence and causing injury (Veh. Code, § 23153, subd. (a)) (count 2)
pursuant to a modified version of CALCRIM No. 2100 in relevant part as follows:
"To prove that the defendant is guilty of this crime, the People must
prove that: One, the defendant drove a vehicle; two, when she drove
a vehicle, the defendant was under the influence of an alcoholic
beverage; three, while driving a vehicle under influence, the
defendant also committed an illegal act or neglected to perform a
legal duty; and four, the defendant's illegal act or failure to perform a
legal duty caused bodily injury to another person.
"[¶] . . . .[¶]
"The People . . . allege that the defendant failed to perform the
following legal duty while driving the vehicle: the duty to exercise
ordinary care at all times and to maintain proper control of the
vehicle.
"The People . . . allege that the defendant committed the following
misdemeanors or infractions: Vehicle code section 23152[
subdivision] (a), driving under the influence of alcohol; Vehicle
code section 23152[, subdivision] (b), driving under the influence of
alcohol, .08 or higher; Vehicle Code section 22348[, subdivision]
(a), driving faster than the posted speed limit; Vehicle Code section
22356[, subdivision] (b), driving over 70 miles an hour; Vehicle
Code section 21658, driving not entirely within a single lane and
moving from the lane without reasonable safety.
"You may not find the defendant guilty unless all of you agree that
the People have proved the defendant committed at least one illegal
16
act or failed to perform at least one duty. You must all agree on
which act the defendant failed to perform." (Italics added.)
The trial court provided a nearly identical instruction with respect to the charged
offense of driving a vehicle with an elevated blood alcohol level and causing injury (Veh.
Code, § 23153, subd. (b)) (count 3), with the exception that the court referred to driving
with a "blood alcohol level [of] 0.08 percent or more by weight" rather than driving
"under the influence" in describing the elements of count 3.
D. The trial court committed reversible error in instructing the jury with respect to
the charged offense of gross vehicular manslaughter while intoxicated (count 1)
In order to find Heinzel guilty of the offense of gross vehicular manslaughter
while intoxicated, the jury was required to find that she committed both: (1) a violation of
Vehicle Code section 23152 (driving under the influence); and a separate (2) "unlawful
act, not amounting to a felony, and with gross negligence." (§ 191.5, subd. (a); see
People v. Verlinde (2002) 100 Cal. App. 4th 1146, 1159 (Verlinde) ["The elements of
Penal Code section 191.5 are: (1) driving a vehicle while intoxicated; (2) when so
driving, committing some unlawful act, such as a Vehicle Code offense with gross
negligence, or committing with gross negligence an ordinarily lawful act which might
produce death; and (3) as a proximate result of the unlawful act or the negligent act,
another person was killed"].)
Despite the existence of these separate elements, the portion of the trial court's
instruction on gross vehicular manslaughter while intoxicated italicized above (see pt.
III.C.1., ante) permitted the jury to find that Heinzel's alleged violations of Vehicle Code
17
section 23152 satisfied the unlawful act element of section 191.5, subdivision (a). Thus,
"the trial court neglected to properly instruct the jury as to the necessary elements of
[gross vehicular manslaughter while intoxicated]." (Soledad, supra, 190 Cal.App.3d at p.
82; see also 1 CALCRIM (2014) Related Issues to CALCRIM No. 590, p. 343 ["The
Vehicle Code driving-under-the-influence offense of the first element cannot do double
duty as the predicate unlawful act for the second element," citing Soledad, supra, at p.
81].) Accordingly, we conclude that the trial court committed clear instructional error.
The People do not contend otherwise. Instead, the People argue that the error was
harmless beyond a reasonable doubt.7 (See Soledad, supra, 190 Cal.App.3d at p. 82
[applying Chapman standard of prejudice].) We reject each argument that the People
offer in support of this contention. First, the People note that the trial court did mention
several proper predicate offenses within the challenged instruction (e.g. driving faster
than the posted speed limit, driving over 70 miles an hour, driving not entirely within a
7 The People did not dispute in their briefing on appeal that the Chapman standard
of prejudice applies in reviewing the asserted instructional error with respect to count 1.
Instead, the People argue, "Even assuming it was error for the trial court to instruct the
jury that a violation of Vehicle Code section 23152, subdivision (a) or (b) could serve as
one of appellant's unlawful predicate acts, under the circumstances presented by this case
the error was harmless under any standard."
However, in their supplemental letter brief, the People contend that the standard of
prejudice in People v. Watson (1956) 46 Cal.2d. 818 (Watson) applies to the court's
instructional error as to counts 2 and 3. We reject the People's argument that Watson
applies with respect to the instructional error as to counts 2 and 3. (See pt. III.E.2.a.,
post.) To the extent that the People contend that the Watson standard of prejudice applies
to the instructional error as to count 1, we reject the People's argument for the same
reasons that we provide for rejecting this argument in connection with the instructional
error as to counts 2 and 3.
18
single lane and moving when not safe to do so). The fact remains that the instruction
permitted the jury to find the second element of the offense—committing an unlawful act
while driving under the influence—based on either of two improper predicate offenses
(e.g. driving under the influence of alcohol, driving with a measurable blood alcohol
level). Further, the jury may very well have improperly relied on one of the alcohol-
related predicate offenses to satisfy the second element of gross vehicular manslaughter
while intoxicated, given that the jury was required to unanimously agree that Heinzel had
committed an alcohol-related offense to satisfy the first element of the offense. As
Heinzel argues in her brief:
"It is reasonable to conclude that the jury approached the elements in
order. Once they found a violation of Vehicle Code [section] 23152,
subdivision (a) or (b) for purposes of the 'drunk driving' element,
they simply could have used that same finding as the basis for the
unlawful act element. There would have been no reason to make
any findings with respect to the three proper unlawful acts since the
instruction told them that a finding with respect to any one of the
five unlawful acts was all that was required."
This likelihood was increased by the fact that the improper alcohol-related
predicate offenses were listed first in the list of predicate offenses in the instruction.
The People contend that the instructional error was harmless because the evidence
"was undisputed that [Heinzel] also committed all three of [the] traffic infractions" on
which the jury could have properly based a finding that Heinzel committed an unlawful
act in addition to driving under the influence. To begin with, we reject the People's
argument that the evidence that Heinzel committed the predicate traffic offenses was
19
undisputed. There was no eyewitness testimony that Heinzel had been speeding or that
she had made an improper lane change, and the defense challenged the People's accident
reconstruction experts' conclusions that Heinzel committed such violations, both through
cross-examination and in closing argument.
With respect to cross-examination, defense counsel subjected both of the People's
accident reconstruction experts to vigorous cross-examination in an attempt to raise a
reasonable doubt as to the experts' conclusions that Heinzel had been speeding and had
made an unsafe lane change. For example, with respect to Heinzel's speed, defense
counsel questioned Phillips about a report that suggested that the roadway was wet at the
time of the accident, a factor that Phillips acknowledged could have affected his
calculation of the speed at which the vehicles were travelling before the accident.8
8 California Highway Patrol Officer Michael Zappia, Jr., responded to the scene of
the collision. Officer Zappia testified that he prepared a January 2012 report that
described the highway at the time of accident as " 'wet from a previous rain.' " At trial,
Zappia testified that he recalled there being "moisture in the center of each lane and then
not moisture toward the outer portion of each lane."
Phillips testified that Zappia had been incorrect in stating that the highway was
wet at the time of the accident.
Parent also acknowledged the significance of wetness of the highway for purposes
of calculating the vehicles' speeds prior to impact:
"The initial report that we received had the roadway marked as being
dry. So my entire analysis was based upon a dry roadway.
"After the investigating officer completed his report, he had
mentioned in his report that the roadway was wet from a previous
rain. So that's very concerning because my entire analysis was based
upon a dry roadway. Obviously, if you have a wet roadway, some of
those speeds I calculated are not going to be correct."
20
Defense counsel questioned Officer Parent with respect to factors that may have affected
the guardrail impact analysis that he conducted to estimate the vehicles' speeds before
impact.9 Parent acknowledged that this case was the first case in which he had
performed a guardrail analysis. As to the unsafe lane change, defense counsel engaged in
a line of questioning that prompted Phillips to acknowledge, "We don't have physical
evidence on the ground to tell us where these vehicles are prior to impact."10 Phillips
also acknowledged during cross-examination that he had "switched the lanes" in his
report in describing the location of Heinzel's car just before the crash.
During closing argument, after noting the absence of any direct evidence as to how
the crash had occurred, defense counsel argued, "How is that we have two experts . . .
9 The People's other accident reconstruction expert, Phillips, stated that guardrail
impact analysis is "not a common form of analysis in our field," and that he "wasn't
comfortable using that specifically as a separate form of analysis."
10 In describing the basis for his conclusion that Heinzel had been straddling two
lanes just prior to impact, Phillips stated:
"The tire mark evidence plotted on the ground shows us where
[Kelly's car] was . . . during the time it was struck. The same is true
for [Heinzel's car]. So at impact, we know that [Kelly's car] is in the
number 2 lane and [Heinzel's car] is straddling between the 2 and the
1. Mostly in the 2. [¶] However, the question is: Where is
[Heinzel's car] before that? Is it in the 2 going to the 1 or is it in the
1 going into the 2 or driving down the two lanes? [¶] The most
logical seems to be . . . [Heinzel's car is] in the number 1 and then
drifts . . . over into the 2. That would be—the most expected from a
curve to the left when you [are] traveling in a curve to the left. But
we can't be completely dogmatic about that because we don't have
physical evidence."
21
who came to substantially the same conclusion about how the accident occurred, but they
contradicted each other drastically in their analysis of how they got there?" Defense
counsel also argued, "How are we supposed to accept that these experts got it right on the
speeds of these cars that are traveling on this road, where all they have left really to
reconstruct it, [are] these skid marks? How can we accept that their speeds . . . pre-
impact are correct when they're basing them, in part, on flawed and contradictory
arguments?" In light of defense counsel's cross-examination of the People's expert
witnesses and closing argument, we reject the People's contention that it was undisputed
that Heinzel committed an unlawful act in addition to driving under the influence.
More importantly, even assuming that the jury found that Heinzel committed an
unlawful act in addition to driving under the influence, the jury was required to find that
she committed that unlawful act with gross negligence. (See Verlinde, supra, 100
Cal.App.4th at p. 1159 ["when so driving, committing some unlawful act, such as a
Vehicle Code offense with gross negligence" (italics added)].) Whether Heinzel
committed an unlawful act with gross negligence was the central issue in the case.
Defense counsel made this clear when she began her closing argument as follows:
"Good afternoon, ladies and gentlemen.
"This is not a gross negligence case. . . . [¶] . . . You'll recall that
[the prosecutor] indicated, in her remarks to you, that if you are
impaired by alcohol [and commit a traffic infraction] . . . it is not
enough to establish gross negligence . . . .[11]
11 Defense counsel was referring to the portion of the trial court's jury instruction in
which the court stated:
22
"Gross negligence takes more than that. And I'm going to submit to
you, ladies and gentlemen, that even on the People's theory of how
this accident occurred, between a .09 and .14 blood alcohol level, on
that particular stretch of freeway, in the middle of the night, on a
downward turn, that the People's theory is that is how the accident
happened, it does not rise to the level of gross negligence.
"What types of things would it take to turn this case into a gross
negligence case? It would take the things that you've probably seen
and experienced in your life; weaving in and out of lanes, passing
cars on the freeway. In a non-freeway case, running a red light,
prior D.U.I., prior moving violations. These are not things that we
have in this case. So on the question of what is the other relevant
conduct that would rise to the level of gross negligence, we have
nothing, other than under the People's theory, speed and
intoxication."
"The combination of driving a vehicle while under the influence of
[an] alcoholic beverage and violating a traffic law is not enough, by
itself, to establish gross negligence. In evaluating whether the
defendant was acting with gross negligence, consider the level of the
defendant's intoxication, if any; the way the defendant drove, and
any other relevant aspects of the defendant's conduct."
In their supplemental letter brief, the People contend that this portion of the trial
court's jury instruction rendered the trial court's instructional error harmless because it
directed the jury to consider the manner by which Heinzel drove in determining whether
she acted with gross negligence. We are not persuaded. Instructing the jury to consider
"the way the defendant drove" did not inform the jury that it had to find that Heinzel
committed a separate unlawful act in order to find her guilty of gross vehicular
manslaughter while intoxicated, as was required. At best, this portion of the instruction
rendered the entire instruction confusing and contradictory, since the portion of the
instruction that outlined the gross negligence element of the offense stated that the People
were required to prove that Heinzel "committed the misdemeanor or infraction . . . with
gross negligence," and listed driving while under the influence of alcohol and driving
with an elevated blood alcohol level as among the predicate offenses.
23
By instructing the jury in a manner that permitted the jury to find that Heinzel's
alleged act in driving under the influence satisfied the unlawful act element of section
191.5, subdivision (a), the court's instruction improperly permitted the jury to find that
Heinzel's act in driving under the influence was grossly negligent. This was potentially
prejudicial because, as noted, in order to find Heinzel guilty of gross vehicular
manslaughter while intoxicated, the jury was required to find that, while driving under
the influence, Heinzel committed a separate unlawful act with gross negligence. (See
Verlinde, supra, 100 Cal.App.4th at p. 1159.) Yet the jury was never instructed to this
effect.
The People also note that the prosecutor stated during closing argument,
"[Heinzel] committed an infraction; same one, either failing to drive within the two lane
[lines], in this particular case, or driving over the posted speed limit of 70 miles an hour."
The prosecutor's reference to these proper predicate offenses in her argument did not
render harmless the trial court's inclusion of improper predicate offenses in its instruction
on the elements of the charged offense. (See Minor, supra, 28 Cal.App.4th at p. 439
[prosecutor's suggestion that charged offense required finding of separate Vehicle Code
violation did not render trial court's listing of improper predicate offenses harmless].)
Finally, the People note that in addition to finding Heinzel guilty of gross
vehicular manslaughter while intoxicated (count 1), the jury also found her guilty of
driving under the influence causing injury (Veh. Code, § 23153, subd. (a)) (count 2) and
driving while having an elevated blood alcohol level causing injury (Veh. Code, § 23153,
24
subd. (b)) (count 3). The People further observe that the jury was required to find that
Heinzel committed a separate unlawful act while driving under the influence in order to
find her guilty of counts 2 and 3, and that the jury instructions for counts 2 and 3 referred
to the same three proper predicate offenses referred to in the court's gross vehicular
manslaughter while intoxicated instruction.
This argument is unpersuasive because the trial court's instructions on counts 2
and 3 suffered from the same defect as contained in its instruction on gross vehicular
manslaughter while intoxicated. (See pt. III.E., post.) As with its gross vehicular
manslaughter while intoxicated instruction, the trial court's instructions on both driving
under the influence causing injury (Veh. Code, § 23153, subd. (a)) (count 2) and driving
while having an elevated blood alcohol level causing injury (Veh. Code, § 23153, subd.
(b)) (count 3) permitted the jury to find the separate unlawful act element of each offense
based on Heinzel's alleged alcohol-related Vehicle Code violations. Thus, the
instructions and the jury verdicts on counts 2 and 3 do not demonstrate that the trial
court's error on count 1 was harmless.
Accordingly, we conclude that the trial court committed reversible error in
instructing the jury in a manner that permitted the jury to find that Heinzel's alleged
violation of Vehicle Code section 23152, subdivision (a) and/or Vehicle Code section
23152, subdivision (b) satisfied the unlawful act element of gross vehicular manslaughter
while intoxicated (count 1).
25
E. The trial court committed reversible error in instructing the jury with respect to
the charged offenses of driving a vehicle under the influence and causing injury
(count 2) and driving a vehicle with an elevated blood alcohol level and causing
injury (count 3)
1. The trial court committed clear instructional error in instructing the jury
on counts 2 and 3
In order to find Heinzel guilty of either driving a vehicle under the influence and
causing injury (count 2) or driving a vehicle with an elevated blood alcohol level and
causing injury (count 3), the jury was required to find that Heinzel drove under the
influence (or drove with an elevated blood alcohol level) and that she committed a
separate unlawful act. (Minor, supra, 28 Cal. App. 4th 431.)
Despite the existence of these separate statutory elements, by listing Heinzel's
violation of Vehicle Code section 23152 (drinking and driving) as among the illegal acts
that the People contended Heinzel had committed, the trial court's instructions on both
driving a vehicle under the influence and causing injury (count 2) and driving a vehicle
with an elevated blood alcohol level and causing injury (count 3), improperly permitted
the jury to find that Heinzel's alleged violations of section 23152 (drinking and driving),
alone, satisfied the separate unlawful act element of each offense. (See pt. III.C.2., ante.)
As in Minor, the "the jury could have convicted [appellant] without finding all of the
requisite elements under this instructional charge." (Minor, supra, 28 Cal.App.4th at p.
438.)
We are not persuaded by the People's suggestion in their supplemental letter brief
that the trial court did not "run afoul of Minor's holding," because the trial court's
26
instructions did refer to Vehicle Code violations that the jury might have properly found
satisfied the unlawful act element. Minor makes clear that in order to find a defendant
guilty of either driving a vehicle under the influence and causing injury (Veh. Code,
§ 23153, subd. (a)) or driving a vehicle with an elevated blood alcohol level and causing
injury (Veh. Code, § 23153, subd. (b)), the People must present evidence that the
defendant committed "an unlawful act or neglect of duty in addition to driving under the
influence." (Minor, supra, 28 Cal.App.4th at p. 438.) By instructing the jury in this case
in a manner that permitted the jury to find that Heinzel's driving under the influence (or
driving with an elevated blood alcohol level) itself satisfied the unlawful act element, the
trial court violated Minor by failing to properly describe the elements of the charged
offenses.
Accordingly, we conclude that the trial court committed clear instructional error
with respect to counts 2 and 3.
2. The error requires reversal
a. The proper standard of prejudice
"Instructions . . . misdescribing an element of an offense are subject to harmless
error analysis under the test of Chapman v. California, supra, 386 U.S.18." (People v.
Breverman (1998) 19 Cal. 4th 142, 194; see People v. Larsen (2012) 205 Cal. App. 4th
810, 829 (Larsen) ["An instructional error that . . . improperly describes . . . an element of
an offense, violates the defendant's rights under both the United States and California
27
Constitutions, and is subject to Chapman review"]; Minor, supra, 28 Cal.App.4th at p.
439 [applying Chapman standard of prejudice].)
"The beyond-a-reasonable-doubt standard of Chapman 'requir[es] the beneficiary
of a [federal] constitutional error to prove beyond a reasonable doubt that the error
complained of did not contribute to the verdict obtained.' [Citation.] 'To say that an error
did not contribute to the ensuing verdict is . . . to find that error unimportant in relation to
everything else the jury considered on the issue in question, as revealed in the record.'
[Citation] Thus, the focus is on what the jury actually decided and whether the error
might have tainted its decision. That is to say, the issue is 'whether the . . . verdict
actually rendered in this trial was surely unattributable to the error.' [Citation.]" (People
v. Neal (2003) 31 Cal. 4th 63, 86; see People v. Wilkins (2013) 56 Cal. 4th 333, 350,
quoting People v. Hudson (2006) 38 Cal. 4th 1002, 1013 ["In deciding whether a trial
court's misinstruction on an element of an offense is prejudicial to the defendant, we ask
whether it appears ' " 'beyond a reasonable doubt that the error complained of did not
contribute to the verdict obtained' " ' "].)
We are unpersuaded by the People's suggestion that the Watson standard of
prejudice applies because the trial court's instructional error affected only an "aspect of an
element" of an offense. (Citing Larsen, supra, 205 Cal.App.4th at p. 829 ["A distinction
is drawn 'between instructional error that entirely precludes jury consideration of an
element of an offense and that which affects only an aspect of an element.' (People v.
Cummings (1993) 4 Cal. 4th 1233, 1315 [(Cummings)]"].) In Cummings, the Supreme
28
Court was drawing a distinction between a type of instructional error that is reversible per
se (i.e. instructional error that entirely precludes jury consideration of an element of an
offense) and instructional error that is subject to the Chapman standard of prejudice
(error affects only an aspect of an element). (Cummings, supra, at pp. 1311-1315.)12
In short, Cummings, and therefore Larsen,13 do not support the proposition that a
trial court's misinstruction on an aspect of the element of an offense is subject to the
Watson standard of prejudice. Further, other California Supreme Court case law makes
clear that instructional error that affects an "aspect of an element" of an offense is subject
to the Chapman standard of prejudice. (See, e.g., People v. Avila (1995) 35 Cal. App. 4th
642, 651 ["the Chapman standard applies to the failure to instruct on a single aspect of a
multi-element offense in this case"]; People v. Harris (1994) 9 Cal. 4th 407, 425 [stating
that the Chapman standard applies "where the jury has been misinstructed on some aspect
of an element of the charged offense"].)
b. The error cannot be deemed harmless beyond a reasonable doubt
As with the trial court's instruction on count 1, the instructions on counts 2 and 3
permitted the jury to find an element of the offenses—committing an unlawful act while
12 In Cummings, the People argued that the Chapman standard applied to review of
the trial court's failure to instruct on four of the five elements of robbery, but the
Cummings court concluded that the error was reversible per se. (Cummings, supra, 4
Cal.4th at p. 1315.)
13 While we do not read Larsen as suggesting that the Watson standard of prejudice
applies to instructional error that affects only an aspect of an element of an offense, to the
extent that Larsen may be read to so hold, we decline to follow it.
29
driving under the influence—based on two improper predicate offenses (e.g. driving
under the influence of alcohol, driving with a measurable blood alcohol level). Further,
the error may well have contributed to the jury's verdicts given that the jury was required
to find that Heinzel had committed the improper alcohol-related predicate offenses in
order to find that the People had proven the drunk driving elements of counts 2 and 3, and
the improper alcohol-related predicate offenses were first in the instruction's list of
predicate offenses.
We reject the two arguments that the People offer in support of their contention
that any error committed by the trial court was harmless beyond a reasonable doubt.
First, while the People note that the jury also found Heinzel guilty of gross vehicular
manslaughter while intoxicated (count 1), we have concluded that the trial court
committed reversible error in instructing the jury on count 1. (See pt. III.D., ante.) Thus,
the jury's verdict on count 1, does not demonstrate that the trial court's error on counts 2
and 3 was harmless. Second, for the reasons stated in part III.D., ante, we reject the
People's contention that the instructional error was harmless because it was undisputed
that Heinzel committed all three of the traffic infractions upon which the jury could have
properly based a finding that she committed an unlawful act in addition to drinking and
driving.
Accordingly, we conclude that the People have not demonstrated beyond a
reasonable doubt that the trial court's instructional errors pertaining to the offenses of
driving a vehicle under the influence and causing injury (count 2) and driving a vehicle
30
with an elevated blood alcohol level and causing injury (count 3) did not contribute to the
jury's verdicts on these counts. We therefore conclude that the trial court committed
reversible error in instructing the jury on both counts.
IV.
DISPOSITION
The judgment is reversed and the matter is remanded to the trial court for further
proceedings.
AARON, J.
WE CONCUR:
NARES, Acting P. J.
IRION, J.
31