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Court of Appeal, Fourth District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. Steven C. WHITE, Defendant and Appellant.

No. D028205.

Decided: November 06, 1998

Cheryl Rae Anderson, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry J.T. Carlton, and Elizabeth A. Hartwig, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted Steven C. White of driving under the influence of alcohol (Veh.Code, § 23152, subd. (a)), and driving with a blood alcohol level of .08 percent or higher (Veh.Code, § 23152, subd. (b)).  The jury further found that White had a blood alcohol level of .20 percent or higher (Veh.Code, § 23206.1).2

The trial court found White had suffered three prior driving while under the influence convictions within seven years (Veh.Code, § 23175), and that he had suffered one prior strike within the meaning of the Three Strikes Law (Pen.Code, §§ 1170.12 & 667, subds. (b)-(i)).

The trial court denied White's motion for new trial based on newly discovered evidence.   The court sentenced White to two years in prison on count one, doubled to four years because of his prior strike.

White appeals.   He contends the trial court abused its discretion in failing to grant his motion for new trial, and committed reversible error in its response to a jury question.   White also contends the prosecutor engaged in prejudicial misconduct.


At 10 p.m., on January 10, 1996, San Diego Police Officers Michael Breckenridge and Kurt Grube responded to a 911 call regarding a bar fight, in which one of the participants reportedly had a gun.   The gunman was described as a male Caucasian, wearing a black jacket, and driving a gold car.

When the officers arrived at the scene, they observed a man, who matched the description of the gunman, exit the bar.   The man was White, who walked past the officers' patrol car at a brisk pace, crossed the street, and entered a gold Lexus.   Breckenridge went to the bar to investigate while Grube remained in the patrol car.   White sped off in the Lexus, running a red light in the process.   Although Grube activated the lights and sirens of his patrol car and followed, the Lexus did not pull over for several blocks.

Grube drew his gun and ordered the driver of the Lexus to exit the vehicle.   When White emerged from the car, he was uncooperative and antagonistic toward Grube and other officers at the scene.   White appeared to be intoxicated;  he had a strong odor of alcohol, his eyes were red and bloodshot, and his speech was slurred.   White refused to take a “field sobriety test” or answer any questions regarding his impaired condition.   He did not mention the bar fight to the arresting officers, and he did not respond when the officers told him a 911 caller had reported a bar fight involving a gun.

Meanwhile, Breckenridge interviewed Debra Blackburn, the bartender who had made the 911 call, for 10 to 15 minutes.   Blackburn told Breckenridge she was not certain she had seen a weapon, and no other witnesses confirmed the existence of a gun.   Breckenridge concluded the altercation had not involved a gun.

At the police station, White had a blood alcohol level of .22 percent.   A police laboratory analyst testified that an individual of White's size would have had to consume approximately 14-1/2 standard drinks to attain a blood alcohol level of .22 percent.

 Defense Case

Testifying on his own behalf, White admitted he drove a vehicle while under the influence of alcohol, but explained he did so only because a man at the bar held a gun to his head and told him, “Get in your car and get the f _ _ _ out of here or you're dead.”

White arrived at the bar and began drinking at approximately 6 p.m. At approximately 9 p.m., White was joined by his friend, Shane Christ.   Believing White was too drunk to drive him home, Christ called a mutual friend, Sean Nevitt, for a ride home.   White also called Nevitt and asked him for a ride.

A short time later, White and a man at the bar started arguing.   The exchange grew progressively more heated.   The other man pulled out a gun, pointed it at White, and told him he was going to “blow [his] f _ _ _ ing head off.”   White, fearing for his life, attempted to de-escalate the hostilities.

White told Christ to leave the bar, and he did so.   Christ testified that he was concerned for his own safety, as well as the safety of White.   When Christ left the bar, White was still arguing with the man.

White walked toward the door, and the man with the gun followed.   The armed man continued to threaten to kill him, and White remained in fear for his life.   After they exited the bar, the armed man told White in no uncertain terms to get in his car and leave or he would kill him.   White quickly walked across the street, got in his car, and drove off.   White's intention was to drive far enough out of the immediate area to avoid getting shot and then to park the car.   He did not believe he had any reasonable alternative other than getting into his car and driving away.

Outside the bar, Christ observed the armed man point the gun at White.   He saw White walk to his car and drive away.

White first saw the patrol car when he was turning onto a side street to park his car.   White testified he told the arresting officers he was not the armed person at the bar, and asked the officers to take him back to the bar so the bartender could verify he was not the one with the gun.


I. Motion for New Trial*

II. Response to Jury Question on “Threats”

During deliberations, the jury asked whether it must establish “threat” before deliberating on the elements of the crimes charged.5  The court responded as follows:

“Threats, menace or duress are a defense to the crimes charged.   If you are convinced beyond a reasonable doubt there was no threat, menace or duress, then you may find the defendant guilty.”

White contends this instruction directed verdicts of guilty on the driving under the influence counts, and on the defense of necessity, because it essentially told the jury to forego deliberations on all other issues if they found beyond a reasonable doubt there was no threat, menace or duress.   Although we find this instruction constituted constitutional error, we hold that the error was harmless beyond a reasonable doubt and thus does not merit a reversal of the conviction.  (Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705.)

A. Instruction Was Constitutional Error

White contends the court's instruction was error because it resulted in a partially directed verdict, thereby depriving him of his constitutional right to have all material issues decided by a jury.

 Jury instructions that relieve the prosecution of the burden of proving each element of the charged offense beyond a reasonable doubt violate a defendant's due process rights under the United States and California Constitutions.  (Sullivan v. Louisiana (1993) 508 U.S. 275, 277-278, 113 S.Ct. 2078, 124 L.Ed.2d 182;  Carella v. California (1989) 491 U.S. 263, 265, 109 S.Ct. 2419, 105 L.Ed.2d 218 (per curiam );  People v. Flood (1998) 18 Cal.4th 470, 480-481, 491, 76 Cal.Rptr.2d 180, 957 P.2d 869.)   Such erroneous instructions also violate United States and California Constitutional principles requiring all material issues be decided by the trier-of-fact.   (Carella v. California, supra, 491 U.S. at p. 265, 109 S.Ct. 2419;  People v. Flood, supra, 18 Cal.4th at pp. 481, 491, 76 Cal.Rptr.2d 180, 957 P.2d 869.)   While the trial court may direct a verdict for the defendant if the evidence is legally insufficient to establish guilt, under no circumstances may the court direct a verdict for the prosecution.  (Sullivan v. Louisiana, supra, 508 U.S. at p. 277, 113 S.Ct. 2078;  People v. Kobrin (1995) 11 Cal.4th 416, 423, 45 Cal.Rptr.2d 895, 903 P.2d 1027.)   Furthermore, the “prohibition against directed verdicts for the prosecution extends to instructions that effectively prevent the jury from finding that the prosecution failed to prove a particular element of the crime beyond a reasonable doubt.  [Citation.]”  (People v. Flood, supra, 18 Cal.4th at p. 491, 76 Cal.Rptr.2d 180, 957 P.2d 869, italics added.)

 Was the court's instruction here a directed verdict?   Clearly, it was not an explicit directed verdict;  it did not usurp the jury's fact-finding role nor did it order the jury to make a finding.6  White concedes as much when he acknowledges the instruction was ambiguous.   However, we must consider whether the instruction effectively discouraged the jury from deliberating on all relevant issues and making all required factual findings.

 In reviewing ambiguous instructions for the existence of federal constitutional error, a review court must determine “whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.”   (Boyde v. California (1990) 494 U.S. 370, 380, 110 S.Ct. 1190, 108 L.Ed.2d 316.)   We find it reasonable to assume that at least some jurors could have interpreted the instruction to mean that they need not deliberate on the elements of the offenses as long as they did not find duress.  (Boyde v. California, supra, 494 U.S. at p. 380, 110 S.Ct. 1190.)   Therefore, because it is reasonably likely that at least one juror could have misinterpreted the instruction, there was error.   White's rights under both the United States and California Constitutions were violated.  (People v. Flood, supra, 18 Cal.4th at pp. 479-480, 76 Cal.Rptr.2d 180, 957 P.2d 869.) 7

B. The Error is Subject to Prejudice Analysis

White contends the error merits per se reversal.   The contention is without merit.

 A reversal per se rule no longer applies under California law to such instructional error.  (People v. Flood, supra, 18 Cal.4th at p. 490, 76 Cal.Rptr.2d 180, 957 P.2d 869.)   In People v. Flood, supra, our Supreme Court surveyed the history of a reversible-per-se rule to instructions that withdraw an element of the offense from the jury's consideration and concluded that such a rule “is fundamentally inconsistent with the language and purpose of the specific California constitutional harmless error provision embodied in article VI, section 13, of the California Constitution․”  (Id. at p. 490, 76 Cal.Rptr.2d 180, 957 P.2d 869.)

In determining whether a constitutional error is reversible under the federal constitution, the United States Supreme Court distinguishes between “trial errors,” which are subject to prejudice analysis, and “structural errors,” which require automatic reversal.  (Arizona v. Fulminante (1991) 499 U.S. 279, 306-310, 111 S.Ct. 1246, 113 L.Ed.2d 302.)

In Arizona v. Fulminante, supra, the high court described “trial errors” as those that occur “during the presentation of the case to the jury, and which may therefore be quantitatively assessed in the context of other evidence presented in order to determine whether [the error] was harmless beyond a reasonable doubt.”  (Id. at pp. 307-308, 111 S.Ct. 1246.)   Most erroneous jury instructions are deemed trial errors.  (Id. at pp. 306-308, 111 S.Ct. 1246.)

By contrast, “structural errors” are “structural defects in the constitution of the trial mechanism ․ affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself.”   (Arizona v. Fulminante, supra, 499 U.S. at pp. 309-310, 111 S.Ct. 1246.)   Examples of structural errors include a biased judge, total deprivation of the right to counsel at trial, and denial of the right to self-representation at trial.  (Id. at pp. 309-310, 111 S.Ct. 1246.)   In the absence of such basic protections, a “ ‘criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence, and no criminal punishment may be regarded as fundamentally fair.’ ”  (Id. at p. 310, 111 S.Ct. 1246, quoting Rose v. Clark (1986) 478 U.S. 570, 577-578, 106 S.Ct. 3101, 92 L.Ed.2d 460.)   Structural errors are reversible per se because their effect cannot be “ ‘quantitatively assessed’ (Arizona v. Fulminante, supra, 499 U.S. at pp. 307-308, 111 S.Ct. 1246) by a comparison to other evidence admitted at trial.”  (People v. Flood, supra, 18 Cal.4th at p. 510, 76 Cal.Rptr.2d 180, 957 P.2d 869) (conc.opn.Werdegar, J.)

After conducting an exhaustive review of United States Supreme Court decisions in People v. Flood, supra, 18 Cal.4th at pages 492-503, 76 Cal.Rptr.2d 180, 957 P.2d 869, the California Supreme Court concluded

“an instructional error that improperly describes or omits an element of an offense, ․ or that raises an improper presumption or directs a finding or a partial verdict upon a particular element, generally is not a structural defect in the trial mechanism that defies harmless error review and automatically requires reversal under the federal Constitution.”  (Id. at pp. 502-503, 76 Cal.Rptr.2d 180, 957 P.2d 869.)

Rather, the error is subject to the Chapman review.  (Id. at p. 503, 76 Cal.Rptr.2d 180, 957 P.2d 869.)

Thus, our Supreme Court in People v. Flood, supra, 18 Cal.4th 470, 76 Cal.Rptr.2d 180, 957 P.2d 869, held there is no reversible-per-se rule for such instructional error under either California or federal law;  instead the error is subject to prejudice analysis.

White argues unconvincingly that Rose v. Clark, supra, 478 U.S. 570, 106 S.Ct. 3101, 92 L.Ed.2d 460, requires us to find that the error was reversible per se because the directed verdict violated White's constitutional right to have the jury, rather than the judge, make a determination of guilt.   However, the high court has rejected such an argument in Pope v. Illinois (1987) 481 U.S. 497, 503-504, footnote, 107 S.Ct. 1918, 95 L.Ed.2d 439, by holding a conviction is not reversible per se simply because “the instructions provided the jury do not require it to find each element of the crime under the proper standard of proof․”  (Id. at p. 503, 107 S.Ct. 1918.)

Moreover, Rose does not require an automatic reversal where the directed finding concerns a factual issue that is not contested at trial.

“[I]f the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other errors that may have occurred are subject to harmless-error analysis.   The thrust of the many constitutional rules governing the conduct of criminal trials is to ensure that those trials lead to fair and correct judgments.   Where a reviewing court can find that the record developed at trial establishes guilt beyond a reasonable doubt, the interest in fairness has been satisfied and the judgment should be affirmed.”  (Rose v. Clark, supra, 478 U.S. at p. 579, 106 S.Ct. 3101.)

 Contrary to White's contention on appeal, nothing about the trial court's error justifies its removal from the category of ordinary trial errors whose prejudicial effect may be adjudged in light of the entire record.   The error here did not undermine each and every finding of fact upon which the verdict was based.  (See Sullivan v. Louisiana, supra, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182.)   Rather, the error involved issues of fact which were not disputed by defendant-either at trial or on appeal.  (See Johnson v. United States (1997) 520 U.S. 461, 117 S.Ct. 1544, 137 L.Ed.2d 718.)   Further, the instructional error here did not prevent White from presenting all relevant evidence concerning a contested element of the crime.  (See People v. Kobrin, supra, 11 Cal.4th at pp. 429-430, 45 Cal.Rptr.2d 895, 903 P.2d 1027.)

C. Was the Error Prejudicial?

 The appropriate standard for assessing prejudice under California law for this type of instructional error is the Watson (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243) test, namely whether there is a reasonable probability of a result more favorable to the defendant absent the error.  (People v. Flood, supra, 18 Cal.4th at p. 490, 76 Cal.Rptr.2d 180, 957 P.2d 869.)  People v. Flood, supra, also teaches the appropriate test for federal constitutional error is the more stringent Chapman test-which requires reversal unless the error is deemed harmless beyond a reasonable doubt.  (Id. at p. 513, 76 Cal.Rptr.2d 180, 957 P.2d 869 (conc. opn. of Werdegar, J.).)   Accordingly, we shall subject the error to the Chapman standard.

The Chapman test is not whether a reasonable jury would have returned a verdict of guilty;  in order for constitutional error to be deemed harmless, the court must conclude beyond a reasonable doubt that “ ‘the guilty verdict actually rendered in this trial was surely unattributable to error.’ ”  (People v. Flood, supra, 18 Cal.4th at p. 494, 76 Cal.Rptr.2d 180, 957 P.2d 869, quoting Sullivan v. Louisiana, supra, 508 U.S. at p. 279, 113 S.Ct. 2078, original italics.)

 Instructional error eliminating an element of the crime from the jury's consideration has been deemed harmless where the defendant concedes or admits the element.  (Connecticut v. Johnson (1983) 460 U.S. 73, 87, 103 S.Ct. 969, 74 L.Ed.2d 823;  People v. Flood, supra, 18 Cal.4th at pp. 504-505, 76 Cal.Rptr.2d 180, 957 P.2d 869;  see also Carella v. California, supra, 491 U.S. at p. 270, 109 S.Ct. 2419, conc. opn. of Scalia, J.) As explained by the plurality opinion in Connecticut v. Johnson, supra, 460 U.S. at page 87, 103 S.Ct. 969:

“In presenting a defense such as alibi, insanity, or self-defense, a defendant may in some cases admit that the act alleged by the prosecution was intentional, thereby sufficiently reducing the likelihood that the jury applied the erroneous instruction as to permit the appellate court to consider the error harmless.” 8

Here, there is no question White admitted the elements in question.   White testified he drove his automobile while intoxicated:

“[Prosecutor]:  Around January 10th, somewhere around 10:00 in the evening, you drove a vehicle under the influence of alcohol, correct?

“[White]:  Yes, I did.


“[Prosecutor]:  Drinking up to that level was not uncommon for you?

“[White]:  Yes, it was, to that level, apparently.   I guess I was a .22․   I was pretty well inebriated, if that's your point.”

In his closing argument, defense counsel admitted White drove his car under the influence, and stated that the only disputed issue was whether White drove his car in response to a threat to his physical safety.

Thus, the defense admission that all the elements of the offense were satisfied was explicit and unqualified.

Furthermore, White concedes on appeal that the jury deliberated and found beyond a reasonable doubt that he did not act under duress.   Given these circumstances, there is no rational basis upon which the instructional error could have affected the jury's verdict.   We are satisfied beyond a reasonable doubt the instructional error did not contribute to the jury's guilty verdicts.

Furthermore, we are satisfied the record establishes beyond a reasonable doubt that the instruction did not preclude the jury from deliberating on the affirmative defense of necessity.

 As conceded on appeal by White, the jury rejected his duress defense;  in other words, the jury found beyond a reasonable doubt that White did not drive his car while under the influence in response to an immediate threat to his physical safety.   Such a factual finding precludes a finding that White acted under necessity because one of the elements of the necessity defense is the criminal act was done to prevent a significant and imminent harm to oneself.9  Any failure of the jury to consider or find the necessity defense was a product of the jury's conclusion that an element or elements of the defense was not present;  it was not a result of the erroneous instruction.

III. Prosecutorial Misconduct**


Judgment affirmed.


2.   White pled guilty to giving false information to a peace officer (Pen.Code, § 148.9, subd. (a)).

FOOTNOTE.   See footnote 1, ante.

5.   The jury's question read:  “Do we have to establish ‘threat’ before we deliberate on the counts for DUI?”

6.   We note the first sentence of the instruction explains that threats, menace, and duress are a defense to the charged offenses, and the second sentence uses the permissive “may” rather than the mandatory “must.”

7.   The Attorney General's arguments regarding waiver and uninvited error are without merit.   Contrary to the Attorney General's assertion, the trial record does not indicate that White's counsel concurred with the court's response to the jury's question.   Moreover, White's failure to object at trial does not constitute waiver in this instance because Penal Code section 1259 entitles him to raise the issue on appeal if his substantial rights were affected by the erroneous instruction.

8.   An instruction removing an element of the crime from the jury's consideration also does not impinge on the defendant's Sixth Amendment right to have a jury decide factual issues if the defendant has admitted that element.   If the existence of the element is not in dispute, there is no issue of fact for the jury to decide.  (See People v. Harris (1994) 9 Cal.4th 407, 459, 37 Cal.Rptr.2d 200, 886 P.2d 1193 (conc. & dis. opn. of Kennard, J.))

9.   The other elements of the necessity defense are:  there was no reasonable legal alternative to the commission of the act;  the harm caused by the act was not disproportionate to the harm avoided;  the defendant entertained a good-faith belief that his act was necessary to prevent the greater harm;  such belief was objectively reasonable under all the circumstances;  and the defendant did not substantially contribute to the creation of the emergency.

FOOTNOTE.   See footnote 1, ante.

HALLER, Associate Justice.

KREMER, P.J., and BENKE, J., concur.

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