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People v. Stamps2/7/2002
on she expresses in her opening brief. According to appellant, the instruction was required because "the accident occurred from no fault of appellant," since Stauff had "cut her off" and her car had "defective steering." However, neither an instinctive swerve to avoid a collision resulting from the unsafe act of another or an unexpected mechanical failure is a crime, at least so far as we are aware, and, in any event, no crime based on such conduct was pursued by the prosecution against appellant in this case.
Essentially the same analysis applies to appellant's contention concerning CALJIC No. 4.45. Appellant produced no evidence that, if she had committed a criminal act, it was by accident. She did not testify she was accidentally intoxicated or accidentally speeding, or that she had accidentally changed lanes or accidentally allowed the children to be traveling without seat belts. Though she claimed she was forced to change lanes to avoid Stauff's purported illegal lane change, as we pointed out earlier, her reactive swerve was not an illegal act under her version of the events in question nor was it pursued as a crime by the district attorney.
B. Proximate Cause
1. CALJIC No. 3.41
Appellant invited any error in the content or effect of CALJIC No. 3.41 because she requested it. (See, e.g., People v. Macias (1997) 16 Cal.4th 739, 746, fn. 3 [A defendant may not complain of an erroneous instruction given at her own request]; People v. Medina (1995) 11 Cal.4th 694, 763; People v. Wader (1993) 5 Cal.4th 610, 657-658.)
In addition, the word "substantial" is a common term in the English language which does not require the trial court to sua sponte furnish the jury with a further definition. If appellant wanted a "pinpoint" instruction expanding upon the meaning of the word in the context of this case, it was her duty to request one, and her failure to do so waived the issue. (See People v. Saille (1991) 54 Cal.3d 1103, 1119; People v. Kelly (1992) 1 Cal.4th 495, 535-536; People v. Ashmus (1991) 54 Cal.3d 932, 997; People v. Mayfield (1997) 14 Cal.4th 668, 779.) Finally, we will not reverse on the ground that CALJIC No. 3.41 creates a mandatory instruction which improperly relieves the jury of finding guilt beyond a reasonable doubt.
Appellant has waived this claim of error for purposes of appeal because she has not supported the contention with adequate argument. (People v. Earp, supra, 20 Cal.4th at p. 884 [Appellate courts "need not consider . . . mere contentions of error unaccompanied by legal argument."].) Appellant's barely half-page treatment of the subject (including the caption) contains nothing more than a restatement of the last paragraph of the instruction, the citation to three cases which express general principles about the prosecution's burden of proof and the law of mandatory presumptions, and three sentences which express her conclusions that the instruction was improper, but which do not disclose the reasoning which led appellant from the instruction and case law to the conclusions.
This truncated presentation is patently inadequate to present the stated issue for decision by this court. It is the appellant's duty to affirmatively make out and explain his or her case in a complete and convincing fashion; it is not this court's obligation to attempt to uncover, by picking through whatever clues the appellant may gratuitously choose to leave in his or her briefs, what the appellant may have in mind.
In any event, appellant's conclusions, however she reached them, are meritless. (People v. Autry (1995) 37 Cal.App.4th 351, 363 [rejecting claim that CALJIC Nos. 3.40 and 3.41 lessen the prosecution
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