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People v. Stamps2/7/2002
the accident reconstruction officer's testimony that she had checked the steering mechanism of the car after the incident and that it moved freely and properly.
It is therefore not reasonably probable the verdict would have been more favorable to appellant had the recall notice been admitted. (People v. Cudjo (1993) 6 Cal.4th 585. 611; People v. Watson (1956) 46 Cal.2d 818, 836.) The jury heard appellant's defense in its full bloom and rejected it outright, probably for what it appeared to be, a last attempt by appellant to avoid responsibility for her unlawful and reckless behavior which caused the death of one child and severe injuries to two others. This outcome would likely not have been different had the trial court admitted the notice, which described a mechanical possibility unlike the mechanical problem described by appellant's unconvincing evidence.
II. Sufficiency of the Evidence
The evidence supports the jury's finding that appellant was driving under the influence of alcohol.
Appellant's BAL was .05 gpm at the time her blood was drawn -- two hours after the accident. Steve Patton, a criminologist, testified the range of "burn off" or elimination of alcohol from the human body is .015 to .025 gpm per hour, and therefore appellant's BAL would have been between .08 and .10 gpm at the time of the accident, above the legal blood alcohol standard in California at both ends of this spectrum. Patton admitted that multiple factors can affect the actual burn-off rate for any given individual, but also testified he knew of no scientifically reliable -- meaning reproducible and not caused by testing abnormalities -- burn-off rate which fell outside the range he used. Patton also testified, based on scientific studies, that a person's BAL rises and falls in a predictable pattern within the general population. Finally, Patton testified a person's ability to engage in multiple tasks like those associated with driving would be impaired at a BAL of .08 to .10 gpm.
This evidence, standing alone, is reasonable, credible and of solid value, and supports a conclusion by the jury beyond a reasonable doubt that appellant was driving under the influence of alcohol at the time of the accident in issue. (See People v. Rayford (1994) 9 Cal.4th 1, 23; People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Jones (1990) 51 Cal.3d 294, 314; People v. Alcala (1984) 36 Cal.3d 604, 623.)
III. Jury Instructions
A. CALJIC Nos. 4.43 and 4.45
The trial court did not err by refusing to give CALJIC No. 4.43 (necessity) and CALJIC No. 4.45 (accident and misfortune).
Appellant's evidence here was insufficient to prove all of the elements of the necessity defense. (See People v. Kearns (1997) 55 Cal.App.4th 1128, 1135; People v. Slack (1989) 210 Cal.App.3d 937, 941- 942.) Appellant's testimony did not admit, even for purposes of argument, that she had committed any crime. (See People v. Spry (1997) 58 Cal.App.4th 1345, 1369, disapproved on other grounds, People v. Martin (2001) 25 Cal.4th 1180, 1192.) To the contrary, it was appellant's position she did nothing illegal. She denied being under the influence of alcohol. She denied speeding. She denied allowing the children to ride without their seat belts buckled. She denied making any unsafe maneuver. The necessity defense might have been applicable had appellant's evidence supported a conclusion she became intoxicated by necessity, or was speeding by necessity, or failed to buckle in the children by necessity, but no such proof was produced.
Appellant's fundamental misunderstanding of the necessity defense is manifested by the justification for the instructi
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