People v. Thompson
| Decision Date | 16 March 2000 |
| Docket Number | No. H017519.,H017519. |
| Citation | 79 Cal.App.4th 40,93 Cal.Rptr.2d 803 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Deborah Lynette THOMPSON, Defendant and Appellant. |
Arthur Dudley, Esq., Santa Cruz, under appointment by the Court of Appeal, Attorney for Defendant and Appellant.
Daniel E. Lungren and Bill Lockyer, Attorneys General, George Williamson, Chief Asst. Atty. General, Ronald A. Bass, Senior Asst. Atty. General, Ronald S. Matthias, Supervising Deputy Atty. General, Martin S. Kaye, Deputy Atty. General, Attorneys for Plaintiff and Respondent.
Defendant Deborah Lynette Thompson appeals from a judgment entered after a jury convicted her of gross vehicular manslaughter while intoxicated (GVMI) and found that she previously served a prison term and had two prior convictions for driving under the influence (DUI), one of which involved bodily injury to another person. (Pen.Code, §§ 191.5, subds. (a) and (d) and 667.5, subd. (b).)
On appeal, defendant claims that the court erred in giving incorrect instructions on GVMI and the required predicate acts, duplicative instructions concerning GVMI and a lesser included offense, and an inadequate cautionary instruction concerning the evidence necessary to establish gross negligence. She claims the court further erred in making improper comments on the evidence; admitting autopsy pictures of the victim and evidence of her mental state; and excluding evidence of the victim's prior DUI arrest, her prior inconsistent statements, and the fact that she did not make certain statements to a police officer. Last, defendant claims the prosecutor was guilty of misconduct.
We affirm.
On March 18, 1997, at around 5:30 p.m., defendant and Ed Traster, the victim, were driving in his blue Thunderbird on Summit Road, a two lane mountain road in Santa Cruz County east of Highway 17. It was still daylight, visibility was good, and there were no obstructions in the road. Both defendant and Traster had been drinking and taking drugs.
While travelling on a straight stretch of the road where the posted speed is 40 m.p.h., 25 m.p.h. when children are present, defendant, the driver, accelerated to at least 55 m.p.h. She veered across the double line into the oncoming lane, jerked back into her own lane, and then lost control of the car. It spun around, jumped the curb, went up an embankment, careened along a cyclone fence, hit a tree, plowed back down the embankment, rolled over onto its side, and finally came to rest.
Traster had not been wearing a seat belt and was partially ejected. His head was crushed, and he died instantly. Defendant, who was also not wearing a seat belt, survived and managed to climb out of the car through the sun roof. She suffered a laceration on the bridge of her nose and various bruises.
Kelly Raftery-Piunit, an assistant district attorney for Santa Clara County, witnessed the accident. She called "911" and then stopped at the scene. Traster was in the passenger seat. Raftery-Piunit testified that defendant kept saying
Joshua Doak also witnessed the accident. He saw two people inside the car immediately before the accident and identified defendant as the driver and Traster as the passenger. After the accident, he saw Traster hanging out of the passenger seat.
Richard Mason, a forensic pathologist and Officer Dane Lobb of the California Highway Patrol, an expert in accident reconstruction, opined that defendant was the driver and Traster the passenger at the time of the accident and that neither was wearing a seat belt. They based their opinions on numerous factors, including the separate seat-position settings that corresponded to defendant's and Traster's physical size, the impact marks on the driver's side that corresponded to defendant's injuries, and Traster's position after the crash and the injuries he suffered.
Blood tests revealed that at the time of the accident defendant and Traster had blood-alcohol levels of .20 and methamphetamine in their systems. Defendant also had valium and its metabolite in her system.
Defendant attempted to show that Traster was driving the car at the time of the accident. To this end, Gary Fairchild testified that he saw defendant in the passenger seat of the Thunderbird parked in front of a liquor store sometime between 3:00 and 4:00 p.m. He did not see Traster at all.
Whitaker Deiniger testified that around 4:00 p.m., Traster drove up to his house with defendant as a passenger. He and Traster spoke for a few minutes, and then Traster drove away.
Michael Tabler testified that around 5:00 p.m., Traster and defendant picked him up at his residence, and they all went to a liquor store. Traster then drove back to Tabler's house. According to Tabler, Traster was drunk and drove fast and made quick turns. He said he tried to take Traster's flask before they left, but he could not find it.
Penal Code section 191.5, subdivision (a), provides, "Gross vehicular manslaughter while intoxicated is the unlawful killing of a human being without malice aforethought, in the driving of a vehicle, where the driving was in violation of Section 23140, 23152, or 23153 of the Vehicle Code, and the killing was either the proximate result of the commission of an unlawful act, not amounting to a felony, and with gross negligence, or the proximate result of the commission of a lawful act which might produce death, in an unlawful manner, and with gross negligence." 1
The court instructed the jury as follows: 2
Defendant notes that the court's instruction defined an "unlawful" killing in terms of the commission of the underlying acts: "A killing is unlawful when a person commits an unlawful act, not amounting to a felony, dangerous to human life under the circumstances of its commission, or commits an act ordinarily lawful, which might produce death, which unlawful act is a cause of the death of another human being." Citing People v. Frye (1992) 7 Cal.App.4th 1148, 10 Cal.Rptr.2d 217, defendant claims the true meaning of "unlawful" is a killing without excuse or justification. Defendant claims the court erred in failing to instruct on this meaning. We disagree.
Frye involved a prosecution for murder and attempted murder. The trial court instructed the jury that a killing or attempted killing was unlawful unless it was either excusable or justifiable. It then said, "`[i]t is undisputed in this case that each of the acts in question was an unlawful act.'" (People v. Frye, supra, 7 Cal. App.4th at p. 1151, 10 Cal.Rptr.2d 217.) On appeal, the defendant claimed the instruction directed a verdict on an element of unlawfulness.
In rejecting this claim, the court stated that "in connection with the use of violence against another person in a homicide case, the word `unlawful' is a term of art[ ]" and refers to the absence of excuse or justification. (People v. Frye, supra, 7 Cal. App.4th at p. 1155, 10 Cal.Rptr.2d 217.) The court explained that where the evidence shows a killing by force or violence and no more, the killing is by definition unlawful, and the defendant must raise a reasonable doubt by presenting some evidence of excuse or justification. If he or she does, then the prosecutor must disprove the defense beyond a reasonable doubt. (People v. Frye, supra, 7 Cal. App.4th at pp. 1154-1155, 10 Cal.Rptr.2d 217; see § 189.5.3)
With these principles in mind, the court further explained that where there is no evidence of excuse or justification, such...
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