PEOPLE v. BRYANT (1995)

Following a trial, the jury found defendant Ronald Tyrone Bryant guilty of one count of gross vehicular manslaughter and one count of felony hit and run driving, and the trial court found two prior prison term enhancements to be true.¹  On appeal, defendant raises the following claims:  (1) the trial court erred when it declined to admit evidence that the seat belts in the victim's vehicle were not fastened, (2) defendant received ineffective assistance of counsel, (3) the prosecution engaged in misconduct by failing to disclose certain evidence until the second day of trial, (4) the trial court improperly instructed the jury, and (5) the trial court improperly imposed a $2,500 restitution fine.   In a related petition for a writ of habeas corpus, defendant provides additional evidentiary support for the first two claims.   For the reasons discussed below, we affirm the judgment and deny the petition for a writ of habeas corpus.

I. FACTUAL AND PROCEDURAL BACKGROUND

By information dated October 19, 1993, defendant was charged with one count of gross vehicular manslaughter not involving drugs or alcohol (Pen.Code, § 192, subd. (c)(1)),² one count of felony hit and run driving (Veh.Code, § 20001), and two prior prison term enhancements (§ 667.5, subd. (b)).  Defendant pled not guilty to all of the charges against him.   The following evidence was presented at the ensuing jury trial:

Michael Kelly testified that on October 9, 1992, at approximately 2:50 a.m., he was driving his pickup truck eastbound on Interstate 80.   Kelly was accompanied by Michelle Perry.   He was driving in the middle lane of the three-lane freeway and was traveling between 55 and 60 miles per hour.   Shortly after driving past a tractor trailer, Kelly saw a sudden flash of headlights in his rearview mirror.   As Kelly looked into the mirror, a large car hit his truck, causing the truck to roll over a number of times.   After briefly losing consciousness, Kelly awakened to find that he had been ejected from his truck.

Kelly found Perry lying in some tall weeds.   Perry was not breathing, so Kelly administered mouth-to-mouth resuscitation.   Perry started breathing again but eventually died as a result of her injuries.   While Kelly was attending to Perry, two men approached him.   One of the men had a head injury and was wearing a black Raiders jacket.   The other man had a leg wound and was limping;  he told Kelly that he had been shot in the leg and that “he couldn't get caught again.”   Both men left the scene, but the man wearing the Raiders jacket eventually returned.   Initially, Kelly testified that he had identified defendant in a December 1992 photographic lineup, but Kelly then acknowledged that he was mistaken.

Richard Stark gave similar testimony.   Stark was driving his tractor trailer eastbound on Interstate 80 near the Leisure Town exit in Vacaville.   He was traveling in the slow lane of the three-lane freeway.   The computer on board the tractor trailer indicated that it was traveling 55 miles per hour.   A small pickup truck traveling in the middle lane of the freeway passed Stark at approximately 60 miles per hour.   At this point, Stark noticed the lights of a vehicle in his left-hand mirror.   The vehicle was traveling in the fast lane and passed Stark “like I was standing still.”   Stark estimated that the vehicle was traveling at least 85 miles per hour.   The vehicle cut sharply from the fast lane into the middle lane and crashed into the back of the pickup truck that had just passed Stark.   The force of the collision sent both vehicles off the road and caused them to lose their headlights and their taillights.   Stark pulled ahead of the scene of the accident and stopped his tractor trailer.

Stark called for the highway patrol and an ambulance on his radio.   While he was doing so, Stark noticed a bleeding man limp up to the cab of his tractor trailer.   The man said that he had been shot and told Stark that he would give him a thousand dollars to get him out of there.   Stark then noticed another man with a head wound and wearing Raiders clothing at the end of his trailer.   The two men left the scene, but the man wearing the Raiders clothing eventually returned.   A week after the accident, Stark picked defendant out of a photographic lineup, identifying him as the man who had limped up to his cab.   Stark was unable to identify defendant in a subsequent live lineup or in court.

Richard Dorricott, a Sacramento police officer, testified that on October 9, 1992, at 5:13 a.m., he was dispatched to investigate a report of a shooting at a residence on San Jose Way in Sacramento.   When Dorricott arrived at the scene, he saw defendant on the front steps of the residence.   Defendant had been shot in his upper left thigh.   Defendant told Dorricott that as he was preparing to go up the steps of the residence, he heard three shots, one of which struck him in the leg, and then observed a vehicle speed away.   It was about a 30 or 35 minute drive from the residence to the Leisure Town exit on Interstate 80.

William Bishop, a field supervisor for the California Highway Patrol, described his examination of the vehicle that caused the accident on Interstate 80.   The vehicle had a bullet hole in the windshield, three bullet holes in the driver's door, and blood stains on the armrest of the driver's door.   One of the bullet holes pierced all the way through the door.   In Bishop's opinion, if someone had been sitting in the driver's seat at the time the bullet was fired, that person would have been hit in the upper left leg.

Neal Tweedy, a traffic officer for the California Highway Patrol, testified that on October 9, 1992, at 3:01 a.m., he was dispatched to investigate a report of an accident about a quarter mile west of the Leisure Town exit on Interstate 80.   The two vehicles involved in the accident were a pickup truck and a Pontiac.   The pickup truck had total body damage consistent with having rolled over and had extra damage to its left rear side.   The Pontiac had damage to its front end, bullet holes in the driver's door, and blood on the inside of the door.   Tweedy believed that the passenger of the Pontiac had hit his head on the windshield because it was cracked on the passenger side and had pieces of hair hanging from it.   Tweedy also observed a man with a laceration on his forehead and glass in his hair.

Henry Durbin, another California Highway Patrol officer, also examined the Pontiac.   Durbin took a sample of hair from the windshield and removed a bloody portion of the driver's seat.   Durbin found photographs of defendant in the vehicle.   Pursuant to a search warrant, Durbin collected blood and hair samples from defendant.   Defendant admitted that he owned the Pontiac but denied being in the vehicle at the time of the accident.   Defendant told Durbin that he had loaned the vehicle to Frank Carthen, the man Tweedy had observed at the scene of accident with a laceration on his forehead and glass in his hair.   Defendant told Durbin that he had been shot in Sacramento.

James Streeter, a former criminalist for the Department of Justice, described tests that he had performed on the blood and hair samples taken from the Pontiac and defendant.   The blood on the upholstery was consistent with that of defendant and was found in approximately 15 percent of the population.   The hair from the windshield did not match that of defendant.

Eusi Kinai Jabari testified on behalf of the defense.   One night in October 1992, between 11 p.m. and 5 a.m., defendant was at Jabari's residence on San Jose Way in Sacramento.   Jabari was at the doorway of his residence, and defendant was facing Jabari coming up the steps toward the residence.   When defendant was about halfway up the steps, Jabari saw a car approaching the residence from his left and heard the sound of burning rubber and two gunshots.   The gunshots were fired before the car reached Jabari's residence.   Defendant told Jabari that he had been hit, and Jabari called for help.   An ambulance responded to the scene.   Jabari had been convicted of possession of a controlled substance.

Following its deliberations, the jury found defendant guilty of gross vehicular manslaughter and felony hit and run driving.   The trial court then found the two prior prison term enhancements to be true.   On April 7, 1994, the trial court sentenced defendant to a total term of nine years in state prison and imposed a $2,500 restitution fine.   Defendant filed a timely notice of appeal and, subsequently, in conjunction with his opening brief, filed a petition for a writ of habeas corpus.

II. DISCUSSION

A.–C.**

D. Instructional Issues

1. CALJIC No. 8.94 **2. GROSS VEHICULAR MANSLAUGHTER INSTRUCTIONS

Defendant was charged with gross vehicular manslaughter not involving drugs or alcohol under section 192, subdivision (c)(1), which is defined as the unlawful killing of a human being without malice while “driving a vehicle in the commission of an unlawful act, not amounting to felony, and with gross negligence;  or driving a vehicle in the commission of a lawful act which might produce death, in an unlawful manner, and with gross negligence.” ⁵  The prosecution alleged that two unlawful acts supported the gross vehicular manslaughter charge, the fact that defendant drove in excess of the maximum speed limit (Veh.Code, § 22349) and the fact that defendant made an unsafe lane change (Veh.Code, § 21658, subd. (a)).  Accordingly, the trial court instructed the jury pursuant to CALJIC No. 8.90 (defining gross vehicular manslaughter not involving drugs or alcohol),⁶ CALJIC No. 8.97 (defining the maximum speed limit),⁷ and a special instruction (defining an unsafe lane change).⁸

 Defendant asserts that one of the elements of gross vehicular manslaughter under section 192, subdivision (c)(1) is an “inherently dangerous” unlawful act (ante, fn. 6) and that the trial court improperly removed this element from the jury's consideration by instructing it that driving in excess of the maximum speed limit and making an unsafe lane change were “inherently dangerous to human life” (ante,, fns. 7–8).⁹  For the reasons discussed below, we cannot agree.

The plain language of section 192, subdivision (c)(1) belies the notion that the statute requires an “inherently dangerous” unlawful act.  (Ante, p. 23.)   In arguing for a contrary conclusion, defendant relies not on the language of the statute but on case law interpreting a different statutory provision, the involuntary manslaughter statute.  (See § 192, subd. (b).) ¹⁰  In People v. Wright (1976) 60 Cal.App.3d 6, 11, 131 Cal.Rptr. 311, for example, the Court of Appeal concluded that one of the elements of involuntary manslaughter is an “inherently dangerous” unlawful act.   Whatever the merits of the Wright approach may be, an issue we need not decide, the approach should not be extended to the vehicular manslaughter context.

The very language of the involuntary manslaughter statute establishes that case law interpreting that statute does not control the interpretation of vehicular manslaughter statutes.   The involuntary manslaughter statute expressly provides that it “shall not apply to acts committed in the driving of a vehicle.”  (Ante, fn. 10.)   The Supreme Court has also recognized the fundamental differences between the involuntary manslaughter statute and vehicular manslaughter statutes.   In People v. Penny (1955) 44 Cal.2d 861, 872, 285 P.2d 926, the court observed that “[a]t present, different standards are set forth for deaths caused through the operation of a vehicle and deaths otherwise caused.”   And, in In re Dennis B., supra, 18 Cal.3d at p. 696, 135 Cal.Rptr. 82, 557 P.2d 514, the court expressly declined to extend the rationale of People v. Stuart (1956) 47 Cal.2d 167, 302 P.2d 5, an involuntary manslaughter case relied upon by defendant, to the vehicular manslaughter context.

 Since an “inherently dangerous” unlawful act is not an element of vehicular manslaughter, the italicized portions of the CALJIC No. 8.90, CALJIC No. 8.97, and the special instruction should not have been given.   (See ante, fns. 6–8.) ¹¹  Accordingly, we turn to the question of whether the instructional error was prejudicial.   We conclude that it was not.

 Although the jury was instructed that driving in excess of the maximum speed limit and making an unsafe lane change were “inherently dangerous to human life” (ante, fns. 7–8), these instructions did not interfere with the jury's determination that defendant's conduct was grossly negligent.   The jury was separately instructed on the definition of both gross negligence and ordinary negligence (CALJIC Nos. 3.36, 8.91) and was instructed that in order to find defendant guilty of gross vehicular manslaughter it had to find that he committed the unlawful acts with gross negligence (ante, fn. 6).   The jury was also instructed on the lesser included offense of vehicular manslaughter without gross negligence.  (§ 192, subd. (c)(2).)   In their closing arguments, both the prosecutor and defense counsel emphasized that in order to find defendant guilty of gross vehicular manslaughter the jury had to find that he acted with gross negligence, not just ordinary negligence.   Neither the prosecutor nor defense counsel argued that the mere fact that defendant made an unsafe lane change and drove in excess of the maximum speed limit was determinative of whether his conduct was grossly negligent.  (Cf. People v. Leffel (1988) 203 Cal.App.3d 575, 583, 249 Cal.Rptr. 906.)   Under these circumstances, the instructional error was not prejudicial.

E. RESTITUTION FINE ***

III. DISPOSITION

The judgment is affirmed.   The petition for a writ of habeas corpus is denied.

FOOTNOTES

1.   For ease of reference, we will refer to Mr. Bryant as “defendant” throughout this opinion, even when we are addressing his petition for a writ of habeas corpus.

2.   All further statutory references are to the Penal Code unless otherwise indicated.

FOOTNOTE.   See footnote *, ante.

5.   In this case, defendant was charged only under the “unlawful act” prong of section 192, subdivision (c)(1).   Consequently, the jury was instructed only under that prong of the statute.  (See post, fn. 6.)   We note that, as a practical matter, “the distinction between an ‘unlawful act’ and a ‘lawful act’ done in an ‘unlawful manner’ tends to disappear in the context of vehicular manslaughter [citations].”  (People v. Hansen (1992) 10 Cal.App.4th 1065, 1075, 12 Cal.Rptr.2d 884.)   For example, a defendant commits a “lawful act” in an “unlawful manner” by driving a vehicle (the “lawful act”) in a negligent manner (the “unlawful manner”).   (People v. DeSpenza (1962) 203 Cal.App.2d 283, 287, 21 Cal.Rptr. 275.)   By driving a vehicle in a negligent manner, however, the defendant has also committed an “unlawful act.”  (Ibid.;  see also In re Dennis B. (1976) 18 Cal.3d 687, 697, 135 Cal.Rptr. 82, 557 P.2d 514.)

6.   As given to the jury, CALJIC No. 8.90 stated as follows:“Defendant is accused in Count 1 of the information of having committed the crime of felony vehicular manslaughter with gross negligence in violation of Penal Code Section 192(c)(1).“Every person who drives a vehicle in a grossly negligent manner and unintentionally but unlawfully kills another human being is guilty of the crime of felony vehicular manslaughter with gross negligence in violation of Penal Code Section 192(c)(1).“A killing is unlawful when a person commits an act inherently dangerous to human life or safety, amounting to a misdemeanor or an infraction, as defined in these instructions, which unlawful act is a cause of the death of another human being.“In order to prove such crime, each of the following elements must be proved:“1. The driver of a vehicle committed with gross negligence an unlawful act, namely, a violation of Section 21658(a) and 22349 of the Vehicle Code.“2. Such unlawful act was a cause of the death of another human being.”   (Italics added.)

7.   As given to the jury, CALJIC No. 8.97 stated as follows:“The maximum speed law of this state on the highway involved in this case as defined in Section 22349 of the Vehicle Code is defined as follows:  ‘No person shall drive at a speed greater than 55 miles per hour.’“A violation of the maximum speed law is the commission of an act inherently dangerous to human life and safety amounting to a misdemeanor or an infraction.”  (Italics added.)

8.   The special instruction stated as follows:“California Vehicle Code Section 21658(a) reads as follows:  ‘Whenever any roadway has been divided into two or more clearly marked lanes for traffic in one direction, the following rules apply:  [¶] (A) A vehicle shall be driven as nearly as practical entirely within a single lane and shall not be moved from the lane until such movement can be made with reasonable safety.’“․ A violation of Vehicle Code Section 21658(a) is the commission of an act inherently dangerous to human life or safety amounting to an infraction.”  (Italics added.)

9.   In making this assertion, defendant relies on an opinion of Division Two of this court, which is now pending before the Supreme Court.  (People v. Van Wells (1995) 31 Cal.App.4th 1272, 37 Cal.Rptr.2d 894 review granted (1995) 40 Cal.Rptr.2d 839, 893 P.2d 1160.)

10.   Section 192, subdivision (b) defines involuntary manslaughter as the unlawful killing of a human being without malice “in the commission of an unlawful act, not amounting to felony;  or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.   This subdivision shall not apply to acts committed in the driving of a vehicle.”

11.   In the future, trial courts should delete the phrase “inherently dangerous to human life [and/or] safety” from CALJIC Nos. 8.90 and 8.97.  (See ante, fn. 6–7.)   As noted above, defendant was charged only under the “unlawful act” prong of section 192, subdivision (c)(1).  (Ante, fn. 5.)   In cases in which a defendant is charged with committing a “lawful act” in an “unlawful manner,” trial courts should include the alternative language set forth in CALJIC No. 8.90, which defines the circumstances in which an “ordinarily lawful” act becomes unlawful.  (See CALJIC No. 8.90 (1992 rev.) Supp. Service pamp. No. 1 (1995) pp. 174–175.)   The alternative language is correct because it does not include the phrase “inherently dangerous to human life [and/or] safety.”

FOOTNOTE.   See footnote *, ante.