People v. Katz CA1/3

Filed 11/16/20 P. v. Katz CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, A153625
v.
ZACHARY A. KATZ, (San Mateo County
Defendant and Appellant. Super. Ct. No. SC081375A)
Defendant Zachary Katz drove in the wrong direction on a highway
while under the influence of alcohol and caused a fatal car crash. A jury
convicted him of gross vehicular manslaughter while intoxicated, driving
under the influence of alcohol causing bodily injury, and driving with a blood-
alcohol level of 0.08 percent or more causing bodily injury. Defendant argues
the trial court improperly responded to a jury question about his defense—
that he was unconscious due to an epileptic seizure while he was driving in
the wrong direction—by simply repeating and directing the jury to specific
instructions already provided. He also argues we must reverse a prior order
of this court denying his motion to suppress his blood-alcohol test results. We
affirm.
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BACKGROUND
I. Vehicular Collision
In the early morning hours on October 5, 2013, three separate drivers
witnessed a vehicle traveling northbound in the wrong direction on U.S.
Highway 101 in the southbound lanes. The vehicle caused several cars to
swerve out of the way to avoid colliding with it. Defendant’s wrong-way
driving continued for approximately nine and one-half miles, when he
ultimately struck a taxi head-on. The taxi then hit a third car, and the taxi
flipped over. As a result of the collision, one taxi passenger died, the taxi
driver sustained multiple fractures, and the other passenger’s serious
injuries and fractures required numerous surgeries and several weeks of
intensive care.
Officers and emergency personnel responding to the collision found the
defendant pinned under the steering wheel of his car. The interior of the car
smelled of alcohol. Defendant’s eyes were red and watery, and his speech
was slurred. An officer administered two preliminary alcohol screenings,
registering defendant’s blood-alcohol content of 0.158 and 0.160 percent,
respectively. The officer then placed defendant under arrest for driving
under the influence of alcohol. A few hours after defendant was extracted
from his car and transported to the hospital, defendant’s blood was drawn,
which showed an alcohol concentration of 0.13 percent. Defendant admitted
consuming approximately three alcoholic beverages late the night before.
Based on these facts, an information was filed charging defendant with
gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a)
[count 1]),1 driving under the influence of alcohol causing bodily injury (Veh.
Code, § 23153, subd. (a) [count 2]), and driving with a blood-alcohol level of
1 All further unspecified statutory references are to the Penal Code.
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0.08 percent or more causing bodily injury (Veh. Code, § 23153, subd. (b)
[count 3]). The information also alleged additional enhancements for counts
2 and 3 that defendant caused death or injury to more than one victim and
that defendant personally inflicted great bodily injury. (Pen. Code, § 12022.7,
subd. (a); Veh. Code, § 23558.)
II. Jury Trial
A. Unconsciousness Defense
At a jury trial, defendant argued an epileptic seizure rendered him
unconscious while he was driving in the wrong direction on the highway. The
testimony at trial established that at various times in the past, he lost
consciousness and was unable to remember events during those times—a
condition previously diagnosed as anxiety. Two years after the collision,
however, defendant was diagnosed with temporal lobe epilepsy, a condition
resulting in recurrent seizures generally lasting between 30 seconds and two
minutes. A professor of neurology and director of an epilepsy center testified
that someone driving in the same manner as defendant was consistent with
someone with temporal lobe epilepsy having a seizure.
The prosecution’s evidence demonstrated that defendant’s blood-alcohol
level at the time of the collision was approximately 0.18 percent, indicating
consumption and full absorption of approximately four alcoholic drinks.
B. Jury Instructions
The trial court provided the jury with a number of CALCRIM
instructions consistent with defendant’s charges and defense. As given,
CALCRIM No. 590, addressing the elements of gross vehicular manslaughter
while intoxicated (count 1), instructed the jury: “[T]he People must prove
that: [¶] 1. The defendant drove under the influence of an alcoholic beverage;
[¶] 2. While driving that vehicle under the influence of an alcoholic beverage,
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the defendant also committed a misdemeanor; [¶] 3. The defendant
committed the misdemeanor with gross negligence; [¶] AND [¶] 4. The
defendant’s grossly negligent conduct caused the death of another person.”
CALCRIM No. 2100, setting forth the charge of driving under the
influence causing injury (count 2), as given, stated: “[T]he People must prove
that: [¶] 1. The defendant drove a vehicle; [¶] 2. When he drove a vehicle, the
defendant was under the influence of an alcoholic beverage. [¶] 3. While
driving a vehicle under the influence, the defendant also committed an illegal
act; [¶] AND [¶] 4. The defendant’s illegal act caused bodily injury to
[victim].”
CALCRIM No. 2101, setting forth the charge of causing injury to
another person while driving with a blood-alcohol level of 0.08 percent
(count 3), as given to the jury, stated: “[T]he People must prove that:
[¶] 1. The defendant drove a vehicle; [¶] 2. When he drove, the defendant’s
blood alcohol level was 0.08 percent or more by weight; [¶] 3. When the
defendant was driving with that blood alcohol level, he also committed an
illegal act; [¶] AND [¶] 4. The defendant’s illegal act caused bodily injury to
another person.”
All three instructions stated the People must prove the defendant
engaged in an illegal act or misdemeanor before finding defendant guilty of
each charged offense. As such, each instruction further specified that the
People alleged the defendant committed the following act or misdemeanor:
“driving a vehicle upon a highway to the left of an intermittent barrier or a
dividing section which separates two or more opposing lanes of traffic”—
wrong-way driving.
The trial court also instructed the jury with CALCRIM No. 3425,
setting forth the requirements for the unconsciousness defense, given as:
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“The defendant is not guilty of the crimes charged in Counts 1, 2 and 3
. . . if he acted while unconscious. Someone is unconscious when he or she is
not conscious of his or her actions. Someone may be unconscious even though
able to move.
“Unconsciousness may be caused by an epileptic seizure or involuntary
intoxication.
“The defense of unconsciousness may not be based on voluntary
intoxication.
“The People must prove beyond a reasonable doubt that the defendant
was conscious when he acted. If there is proof beyond a reasonable doubt
that the defendant acted as if he were conscious, you should conclude that he
was conscious, unless based on all of the evidence, you have a reasonable
doubt that he was conscious, in which case you must find him not guilty.”
(See CALCRIM No. 3425.) The parties agreed these instructions must be
given to the jurors; there were no objections to the wording of these
instructions; and the court did not reject any instructions that the defense
counsel requested.
During deliberations, the jury asked: “[T]o use 3425 ‘unconscious’
[defense], dose [sic] the defendent [sic] need to be unaware of his actions the
entire time he was driving under the influence OR just while driving the
wrong way on 101 OR just at the time of the crash?” After consulting with
counsel, the trial court repeated the sentence in CALCRIM No. 3245, “The
People must prove beyond a reasonable doubt that the defendant was
conscious when he acted.” The court then referred the jury back to its
instructions, stating, “The act or acts required for any specific charged crime
or lesser crime is set forth in the instruction for that specific crime.” There
were no further questions about the CALCRIM No. 3425 instruction.
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The jury found defendant guilty as to all counts and found true all
alleged enhancements.
DISCUSSION
I. Trial Court Response to Jury Question
Defendant contends the trial court incorrectly responded to the jury’s
request for clarification about his unconsciousness defense because it
repeated and referred the jury to the instructions already provided. He takes
issue with the court’s alleged failure to clearly identify the “act” during which
he was required to be conscious, an element the jury needed to assess the
viability of his unconsciousness defense. According to the defendant, the only
“correct” answer was “unconsciousness occurring only during the wrong way
driving was a defense to that offense and therefore would be a defense to the
charged offenses.” Anything aside from this response, he claims, violated the
trial court’s duty under section 1138 to help the jury understand the legal
principles of the case and deprived him of his due process right to his defense
and correct jury instructions. (§ 1138; see People v. Moore (1996) 44
Cal.App.4th 1323, 1331 (Moore).) We disagree.
A. Forfeiture
At the outset, defendant forfeited this claim on appeal. The trial court’s
response was made after consulting with counsel, and the record does not
reflect any objection, thus indicating an agreement with the proposed
response. (See People v. Ross (2007) 155 Cal.App.4th 1033, 1048 [“A
defendant may forfeit an objection to the court’s response to a jury inquiry
through counsel’s . . . tacit approval,” meaning “the court makes clear its
intended response and defense counsel, with ample opportunity to object,
fails to do so”].) Although defendant frames his claim as a challenge to the
“correctness” of the trial court’s response, he does not identify any actual
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error. Substantively, his claim involves a modification rather than a
“correction” of the trial court’s response to the jurors. By failing to request
any allegedly crucial clarifying language from the trial court, which it had no
sua sponte duty to provide, defendant cannot raise this claim now. (See
People v. Lang (1989) 49 Cal.3d 991, 1024 [a party forfeits a claim “that an
instruction correct in law and responsive to the evidence was too general or
incomplete unless the party has requested appropriate clarifying” language].)
B. Section 1138
Even overlooking the defendant’s failure to object or to request
clarifying language, he is no more successful on the merits. Section 1138
requires a trial court to provide information “ ‘on any point of law arising in
the case’ ” during jury deliberations, but it does not require it to elaborate on
standard instructions. (People v. Hodges (2013) 213 Cal.App.4th 531, 539, fn.
3; see § 1138.) “ ‘Where the original instructions are themselves full and
complete, the court has discretion under section 1138 to determine what
additional explanations are sufficient to satisfy the jury’s request for
information. . . .’ ” (Hodges, at p. 539.) Errors under section 1138 are
reviewed for an abuse of that discretion. (Moore, supra, 44 Cal.App.4th at pp.
1330–1331.)
Here, the trial court acted well within its discretion by directing the
jury to review complete and correct instructions on defendant’s charged
offenses and defense. It first repeated the first sentence of CALCRIM
No. 3425, which stated, “The People must prove beyond a reasonable doubt
that the defendant was conscious when he acted.” The instructions further
noted that the “defendant is not guilty of the crimes charged in Counts
1, 2 and 3 and of the lesser crimes to the charged crimes if he acted while
unconscious.” This was a correct statement of the law. (See People v.
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Mathson (2012) 210 Cal.App.4th 1297, 1321 (Mathson) [“ ‘unconsciousness
negates the elements of voluntariness and intent, and when not voluntarily
induced is a complete defense to a criminal charge’ ”].)
The court next advised the jury to review the instructions for
defendant’s three charged offenses by stating, “The act or acts required for
any specific charged crime or lesser crime is set forth in the instruction for
that specific crime.” All three instructions for these counts required the
People to prove that defendant engaged in an illegal act or misdemeanor.
(See CALCRIM Nos. 590 [(count 1) “While driving that vehicle under the
influence of an alcoholic beverage, the defendant also committed a
misdemeanor”], 2100 [(count 2) “While driving a vehicle under the influence,
the defendant also committed an illegal act”], 2101 [(count 3) “When the
defendant was driving with that blood alcohol level, he also committed an
illegal act”].) This too was a correct statement of the law. (See, e.g., People v.
Nicolas (2017) 8 Cal.App.5th 1165, 1173 [describing gross vehicular
manslaughter as a crime requiring “the confluence of two different mental
states: general intent in the driving of the vehicle, and gross negligence
while committing a traffic violation”].)
CALCRIM Nos. 2100 and 2101 specified: “The People allege that the
defendant committed the following illegal act: driving a vehicle upon a
highway to the left of an intermittent barrier or a dividing section which
separates two or more opposing lanes of traffic.” (Italics added.) CALCRIM
No. 590 similarly identified the misdemeanor the People were required to
prove before finding defendant guilty of the offense: “driving a vehicle upon a
highway to the left of an intermittent barrier or a dividing section which
separates two or more opposing lanes of traffic”—wrong-way driving. All
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three instructions expressly referred to an additional special instruction
identifying the elements of wrong-way driving.
Read together, the instructions explained defendant was not guilty of
his charged crimes if he was unconscious at the time he engaged in the illegal
act of wrong-way driving. (Cf. People v. Galloway (1979) 100 Cal.App.3d 551,
567–568 [“The absence of an essential element in one instruction may be
supplied by another or cured in light of the instructions as a whole”].) No
further instruction or clarification was required.
Defendant nonetheless argues the trial court did not address the jury’s
inquiry with “ ‘concrete accuracy’ ” and it should have expressly stated
unconsciousness while driving in the wrong direction was a defense to all his
charges. But defendant focuses entirely on the first portion of the trial
court’s response—that the People have the burden of demonstrating
defendant was conscious at the time he acted—reading it in isolation.
Indeed, he ignores the second portion of the response referring the jury to the
instructions, and he ignores the instructions as a whole. (See Moore, supra,
44 Cal.App.4th at p. 1330 [reviewing the propriety of a court’s response to a
jury inquiry requires an examination of the instructions as a whole].) After
reviewing the entire jury charge, the trial court’s response sufficiently
informed the jury of this requirement.
Relying on People v. Franklin (2018) 21 Cal.App.5th 881, 887,
defendant further takes issue with the trial court’s repeating the instructions
because the jury already indicated it did not understand them. This reliance
is misplaced. “[C]omments diverging from the standard [instructions] are
often risky.” (People v. Beardslee (1991) 53 Cal.3d 68, 97.) While a trial court
is not authorized to “figuratively throw up its hands and tell the jury it
cannot help” in response to a jury inquiry about the legal principle, it
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satisfies its obligations under section 1138 by considering “how it can best aid
the jury,” including referring the jury back to the specific instructions. (Ibid.;
see Franklin, at p. 887.) Here, the record shows the trial court considered a
specific response. After consulting counsel for both sides, it decided to
reiterate to the jurors the specific jury instructions already provided. The
trial court’s response was not an abuse of discretion.
C. No Reasonable Likelihood of Misunderstanding
Even if there were a flaw in the trial court’s response—which we do not
hold—there was no “ ‘ “reasonable likelihood” that the jury misconstrued or
misapplied the law in light of the instructions given, the entire record of the
trial, and the arguments of counsel.’ ” (Mathson, supra, 210 Cal.App.4th at p.
1312.)
As detailed above, CALCRIM No. 3425 and other instructions required
the jury to find defendant not guilty of his charged offenses if there was a
reasonable doubt he was conscious while he was driving in the wrong
direction, not the entire time that he was driving. Although at trial
defendant testified that he lacked awareness the entire time he was driving,
defendant’s epilepsy specialist opined that defendant was unconscious during
a seizure that occurred while he was driving. He further expressly testified
that it was “entirely within the realm of possibility” that defendant was
unaware of his actions for nine minutes during and immediately after a
complex seizure—the estimated period of time that defendant was driving.
In response to another hypothetical, the specialist testified that driving in the
wrong direction for 9 to 10 miles, like defendant, was very consistent with
someone driving experiencing a seizure and postseizure effects. In his closing
argument, defense counsel reiterated this and identified wrong-way driving
as the focal point for defendant’s unconsciousness defense by stating
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defendant “has to intentionally do the act, and the act is driving the wrong
way on highway 101 leading to the death . . . .” (Italics added.)
Defendant claims the jury was confused about the instructions, but
“ ‘ “ ‘ “we must assume that jurors are intelligent persons and capable of
understanding and correlating all jury instructions which are given.” ’ ” ’ ”
(People v. Landry (2016) 2 Cal.5th 52, 95.) During the remainder of the
deliberations, the jury sent an additional question in a note to the court but
did not ask any further questions about the application of CALCRIM
No. 3425. We see no basis to conclude the jury misinterpreted the
instructions or applied them in a way that violated defendant’s rights.2 (See
Mathson, supra, 210 Cal.App.4th at p. 1312.)
In light of this conclusion, we do not examine whether defendant was
prejudiced by any alleged trial court error. (See People v. Lua (2017) 10
Cal.App.5th 1004, 1017 [failing to adequately answer jury question subject to
prejudicial error analysis]; see also People v. Roberts (1992) 2 Cal.4th 271,
326 [applying the prejudice standard of People v. Watson (1956) 46 Cal.2d
818, 836, of “whether the error resulted in a reasonable probability of a less
favorable outcome”]; Chapman v. California (1967) 386 U.S. 18, 24 [federal
standard that error was harmless beyond a reasonable doubt].)
2There is no merit to defendant’s claims, to the extent that he makes
them, that the trial court denied him the right to present his unconsciousness
defense or that the trial court failed to instruct the jury on that defense.
Defendant presented extensive evidence to support his unconsciousness
defense, and the trial court expressly instructed the jury with CALCRIM
No. 3425 on this defense. (See People v. Dowdell (2014) 227 Cal.App.4th
1388, 1420 [rejecting defendant’s claim that erroneous instruction violated
her right to present a defense where defendant introduced substantial
evidence supporting defense].)
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II. Motion to Suppress
We reject defendant’s additional request to reconsider the writ decision
in People v. Superior Court (Katz) (Jan. 10, 2017, A149715) [nonpub. opn.],
issued by a different panel of this division and denying the suppression of his
blood-alcohol test results.3 Defendant’s claim is precluded by the law of the
case doctrine. (See People v. Stanley (1995) 10 Cal.4th 764, 786 [when
“ ‘ “upon an appeal, the [reviewing] court, in deciding the appeal, states in its
opinion a principle or rule of law necessary to the decision, that principle or
rule becomes the law of the case and must be adhered to throughout its
subsequent progress, both in the lower court and upon subsequent
appeal” ’ ”].)
Relevant here, defendant’s blood was drawn at the hospital after an
officer told him that he had to submit to a breath or blood test and that only
the blood test was available. Defendant agreed to the blood test but was not
read any formal notice of his right to refuse the test or consequences of that
refusal. The trial court suppressed the blood test results based on
defendant’s lack of voluntary consent. In a writ proceeding initiated by the
People, this court determined the results were admissible because they would
have inevitably been discovered through a warrant, but allowed defendant to
renew his suppression motion in the trial court to present evidence that the
inevitable discovery doctrine did not apply. (People v. Superior Court (Katz)
(Mar. 29, 2016, A146834) [nonpub. opn.].) The trial court determined the
defense sufficiently contradicted a conclusion the results would have been
inevitably discovered and granted the suppression motion, which this court
3 Defendant requested that we take judicial notice of records of this
court from the two prior writ proceedings addressing his motions to suppress
that arose from this case prior to trial. We now grant his request. (See Evid.
Code, §§ 452, subd. (d), 459, subd. (a).)
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again vacated in a second writ proceeding. (People v. Superior Court (Katz),
supra, A149715.)
Defendant acknowledges the law of the case doctrine applies because
the court already determined the precise issue here: Would an officer have
inevitably discovered defendant’s blood test results after obtaining a
warrant? But rather than arguing any significant change in the
circumstances of the evidence, he urges us to reconsider the previous decision
as wrongly decided and based on rarely cited case law. (See People v. Sons
(2008) 164 Cal.App.4th 90, 98–99 [law of the case doctrine “ ‘ “prevents the
parties from seeking . . . reconsideration of an already decided issue in the
same case absent some significant change in circumstances” ’ ”].) We
disagree. The California Supreme Court declined to grant review of this
issue (People v. Superior Court (Katz), supra, A149175, rev. den. Mar. 29,
2017, S240175), and we similarly decline to reconsider the issue.
DISPOSITION
The judgment is affirmed.4
4We deny defendant’s companion petition for writ of habeas corpus by
separate order filed this same date. (In re Katz, A159803.)
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_________________________
Jackson, J.
WE CONCUR:
_________________________
Siggins, P. J.
_________________________
Petrou, J.
A153625/People v. Zachary A. Katz
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