Filed 5/28/13 P. v. Swayne CA1/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A133761
v.
CHELEIA SWAYNE,                                                      (Alameda County
                                                                     Super. Ct. No. CH49879A)
         Defendant and Appellant.


                                              I. INTRODUCTION
         Appellant Cheleia Swayne was convicted by a jury of four counts arising out of a
car crash in which she was driving at high speed while under the influence of alcohol, hit
a curb, and slammed head-on into a gas station pole.1 When police arrived, the car was
on fire and the front seat passenger was engulfed in flames. The two back seat
passengers were rescued but sustained serious injuries. Appellant contends the trial court
erred in admitting evidence of her responses to police questioning at the scene before she
was advised of her Miranda rights, the court prejudicially misinstructed the jury on
aiding and abetting and on the definition of “driving,” and cumulative error. In addition,
appellant argues, and respondent concedes, a sentencing error. We will reverse the
sentence, remand for resentencing, and affirm the judgment in all other respects.




         1
       Appellant’s codefendant, Damarcus Thompson, was tried and convicted in the
same proceeding. His appeal is pending in case number A133858.


                                                             1
               II. FACTUAL AND PROCEDURAL BACKGROUND
       On June 14, 2011, the Alameda County District Attorney filed a consolidated
information charging appellant and Damarcus Thompson with gross vehicular
manslaughter (Pen. Code, § 191.5, subd. (a)), with an allegation that Thompson fled the
scene of the crime (Veh. Code, § 20001, subd. (c)) (count 1), and driving under the
influence of alcohol and causing personal injury (Veh. Code, § 23153, subd. (a)) (count
2). The information also charged appellant with driving with a 0.08 percent blood-
alcohol level and causing injury (Veh. Code, § 23153, subd. (b)) (count 3) and driving
when her driving privilege was revoked (Veh. Code, § 14601.2, subd. (a)) (count 4). In
count 5, the information also charged Thompson with leaving the scene of an accident
involving injury (Veh. Code, § 20001, subd. (a)).
       As to count 2, the information alleged that appellant and Thompson caused bodily
injury and death to multiple victims (Veh. Code, § 23558), drove at an excessive rate of
speed (Veh. Code, § 23582), and caused great bodily injury to La’Camii Ross, Everett
Jackson, and Jalisha Harris, elevating the offense to a serious felony (Pen. Code,
§ 1192.7, subd. (c), 12022.7, subd. (a)). Count 3 contained these same alleged
enhancements against appellant.
       The matter went to trial before a jury, and the following evidence was adduced.
Before the Crash
       On August 14, 2009, Jalisha Harris and appellant spent the afternoon together
riding around in appellant’s boyfriend’s black Lexus. Appellant was driving and Harris
sat in the other front seat. When it got dark, they drove to their friend Rob’s house in
East Oakland. Harris, appellant, and Rob stood outside talking on the driveway. At
around 8:00 p.m., appellant bought a pint of Amsterdam gin and drank it with Harris for
an hour until it was empty. Appellant went back to the liquor store and bought another
pint bottle of Amsterdam gin which she shared with Harris and one or two other people
until it was empty. Harris felt “tipsy” and she testified that appellant was in the same
condition, i.e., intoxicated but able to speak and walk normally.



                                             2
       La’Camii Ross was dropped off at the house where Harris and appellant were
standing in the driveway. No alcohol was being consumed at this point, and the group
hung out for another hour. Around midnight, Harris asked appellant to drop her off at the
Alvingroom Apartments and to pick her up an hour later.
       When Harris came outside to be picked up, she saw the Lexus in the parking lot
with the right rear passenger door open. Everett Jackson was sitting in the middle of the
back seat. The driver’s seat was pushed so far back that no one could sit directly behind
it in the back seat. Thompson sat in the driver’s seat with appellant on his lap. Ross was
in the front passenger seat. Harris got in the back seat on the right side behind Ross. She
could not tell if anyone put on a seatbelt. She did not put on her seatbelt. Harris knew
Jackson because she had dated him. She knew Thompson by his street name, “Devil.”
       As soon as she got in the car, it took off. Harris did not have a clear recollection
of whose hands were on the steering wheel and she did not see whose feet were on the
pedals. She recalled testifying previously that she saw appellant’s hands on the wheel.
She explained that she was not changing her story at trial, but that she had suffered
memory loss and memory changes.
       Although Harris felt the effects of intoxication, she had memories of the drive.
She remembers leaving the driveway of the apartment complex, turning left on Macarthur
Boulevard, and going fast. The car was traveling at “freeway speed.” She did not
remember any stops and did not remember if she was awake during the drive. The last
thing she remembered was seeing the Quik Stop on Macarthur Boulevard in San Leandro.
       Everett Jackson had been hanging out at his grandmother’s house on 100th
Avenue and Macarthur Boulevard on the evening of August 14. He was with a group of
people including his cousin Damarcus Thompson. They were drinking Amsterdam gin
out of two or three pint-sized bottles.
       Some time before midnight, the group congregated outside a nearby bar called the
Sports Page. Before arriving at the Sports Page, the group bought more alcohol. Jackson
saw Thompson drinking alcohol and observed that Thompson was “sort of” experiencing
the effects. After the bar closed at 2:00 a.m., appellant drove up in a black Lexus with


                                              3
passengers Harris and Ross. Appellant got out of the car. Jackson got into the driver’s
side back seat. Thompson sat in the driver’s seat and appellant sat on his lap. Jackson
did not have his seatbelt on and he did not see Thompson or appellant put on the seatbelt,
turn on the car, steer, or operate the pedals. The last thing Jackson remembered was
seeing the Quik Stop in San Leandro.
The Crash and the Aftermath
       On August 16, 2009, just after 3:00 in the morning, Shirley McGee was at home
watching television when she heard a loud smash outside. She lived in an apartment on
the corner of Grand Avenue and Joaquin Street in San Leandro. She went outside onto
the porch and saw a car that had crashed into a pole at the gas station across the street.
There was a lot of smoke in the car. McGee ran back into the apartment, grabbed her
phone, and went back out to the porch. She called 911. From across the street, she could
hear people inside the car crying loudly for help.
       After calling 911, McGee saw a man walk out of the smoke of the crash site. He
ran across the street towards McGee and proceeded towards the freeway. The man
appeared to be hurt; he walked with a limp.
       McGee called 911 two more times because the situation inside the car was getting
worse—she could see fire—and help had not yet arrived.
       At 3:19 a.m., Officer Michael Benz of the San Leandro Police Department was
dispatched to the crash site. He arrived at the Coast Gas Station in the 1400 block of
Grand Avenue in his marked police vehicle with the lights and siren activated. Before he
parked, he could see a black male crossing the street from east to west, about 50 feet
away. Officer Benz grabbed a fire extinguisher from his patrol car and ran towards the
burning vehicle. He saw appellant sitting on a low retaining wall 20 to 30 feet away. She
called out, “I’m over here, I’m over here.” Officer Benz asked appellant if she was okay
and then asked if she was the driver. Appellant said she thought her leg was broken and
acknowledged that she was the driver.
       Officer Benz heard a female voice from the burning vehicle yelling for help and
saying she could not get out of the car. Officer Benz found Jalisha Harris in the back


                                              4
seat, face down. Her lower torso, waist, and legs were in the car; her upper torso, arms,
and head were outside the car on the ground. Not knowing the extent of Harris’ injuries
or if she was pinned inside the car, Officer Benz decided to try to put out the fire first.
The majority of the fire was in the front passenger area of the car. The fire extinguisher
was ineffective. Two other officers on the scene were also trying to put out the fire.
Officer Benz could see someone in the front passenger seat. The officers pulled Harris
from the car and set her down a safe distance from the car. They were unable to reach the
front seat passenger because the fire was too intense. Officer Benz saw what appeared to
be a pair of jeans on the rear floorboard. He also noticed that the gas pedal was pushed
up to the driver’s seat; it was significantly closer to the driver’s seat.
       Officer Liaquat Khan was on duty in north San Leandro when he heard Officer
Benz’s initial reports from the scene of the car crash. He decided to respond to the scene
when he heard Officer Benz’s voice become more excited and that the vehicle involved
was fully engulfed in flames. When Officer Khan arrived, there were three patrol cars
present, but no fire or medical personnel. The other officers were attending to Harris and
appellant. Officer Khan approached to within five feet of the car on the driver’s side and
noted that the driver’s door and left rear door were open all the way and that there was a
person in the right front passenger seat. The fire was inside the car’s passenger and
engine compartments, and flames were shooting up about 10 feet into the air. Officer
Khan heard moaning from the back seat and saw what initially appeared to be a pair of
jeans, but turned out to be a person. Officer Khan could not get close to the person
because of the flames, but kept trying, unsuccessfully, to put out the fire.
       When the fire department arrived, Officer Khan told one of the firefighters that
someone was alive in the back of the car. The fire department put out the fire and
rescued a male later identified as Everett Jackson from the back seat.
       After the fire was out, Officer Benz turned his attention back to appellant, who
was still sitting on the retaining wall. She asked repeatedly if the other people in the car
were okay. Officer Benz noted that she had red watery eyes, slurred speech with



                                                5
deliberate pronunciation, and the odor of alcohol coming from her person. Appellant
appeared disheveled and her attitude was indifferent.
       Officer Benz asked appellant a number of standard questions from a form and
recorded her answers in writing. She did not answer most of the questions, but said she
had been driving from Oakland to San Leandro. After speaking with appellant, Officer
Benz arrested her for driving under the influence of alcohol and causing injury.
Appellant was then transported to the hospital.
       Codefendant Damarcus Thompson was not located at the scene of the accident.2
       Everett Jackson was taken to Eden Hospital. Officer Benz saw him there in the
trauma room. One of his legs was in a splint; he was hooked up to a ventilator; and he
was unconscious.
       Jackson had a broken leg and was unconscious for two weeks. He was then in
rehabilitation care for six weeks. Ever since the accident, he has suffered memory
problems and seizures. Apparently, he is no longer the person he was before the
accident.
       Officer Khan interviewed Jalisha Harris at the hospital and wrote down her
statement: “I went to a club somewhere in Oakland with my cousin [appellant]. I don’t
remember how long we were at the club. While at the club, I took a couple of shots of
alcohol. I know [appellant] was drinking too, but I don’t know what or how much. After
a while at the club, we, my cousin and two other men, left the bar in [appellant’s] car. I
don’t know who the other two males were. [Appellant] was driving her boyfriend’s black
Lexus four-door. I was in the left rear passenger seat without my sealtbelt on.
[Appellant] was driving home to San Leandro, but I don’t know where she lives. I fell
asleep at some point during our ride home. I woke after [appellant] crashed the car. I
don’t know who [sic] or how I got out of the car after the crash. I was injured as a result




       2
        An arrest warrant was issued and Thompson was finally apprehended more than
a year and a half later, in March 2011.


                                             6
of the crash. My entire body including my neck hurts. Also have some cuts to my body
as a result of the crash.” Harris was physically unable to sign the statement.
       Harris testified that she remembered seeing smoke and the paramedic standing
over her as she was hanging out of the car door. Her neck hurt and she could not move.
Harris woke up again in the intensive care unit of the hospital. She had suffered a broken
neck and fractured her hand. She had to wear a metal halo screwed into her skull for
three months. She had residual scars and long-term problems with her back, leaving her
unable to work.
       La’Camii Ross, the front seat passenger, died at the scene. Dr. Paul Herrmann
performed an autopsy and testified at trial. Ross’s “body was severely burned, charred on
most of the skin surface,” including most of her face, her teeth, and her ears. The
charring continued on her neck, chest, abdomen, legs, arms, and hands. Dr. Herrmann
noted a fractured ankle and fractured ribs, one of which lacerated her left lung. Ross had
no serious head injuries, leading Dr. Herrmann to opine that Ross was alive when the fire
started. She probably died within seconds by inhaling hot gas. The cause of death was
blunt trauma and extensive thermal burns.
       Jonathan Knapp, the director of the Valley Toxicology Forensic Laboratory,
testified as an expert in impairment. Mental impairment begins to occur when a person’s
blood alcohol content is between 0.03 and 0.06 percent. At a level of 0.08 percent, an
individual’s visual focus and peripheral vision is detrimentally affected. At 0.15 percent,
most people will lose all peripheral vision.
       On August 21, 2009, an employee of Valley Toxicology Forensic Laboratory
examined a sample of appellant’s blood from the day of the incident. The result was a
blood alcohol content of 0.12 percent. On October 18, 2010, Knapp conducted the test
again because the employee who performed the first test was no longer working for the
laboratory. The result was a blood alcohol content of 0.10 percent. Knapp testified that a
reason for the lower blood alcohol level was the year-long period between tests and the
volatile nature of blood specimens.



                                               7
       Officer Joe Molettieri, a traffic investigator for the San Leandro Police
Department, concluded that the car first hit the curb of the street, traveled 40 to 45 feet,
and then hit the pole. The front of the car hit the square cement block holding up the
pole. There were no skid marks, which would have been evidence of braking.
       Scott Sorensen, formerly a traffic division investigator for the Hayward Police
Department, was trained in accident investigation and reconstruction. Sorensen
performed a crush analysis and determined that the speed of the Lexus when it hit the
pole was between 44.25 and 50.46 miles per hour. The speed limit on Grand Avenue is
35 miles per hour, and many of the posted speed limit signs along the route traveled by
the Lexus were 30 miles per hour. Sorensen’s calculations were based solely on the
crush damage to the car, and established the minimum speed the vehicle could have been
traveling at the time of impact. According to Sorensen, other factors such as flying
debris, which did not figure into the crush analysis, indicated that the car’s speed was
actually higher.
       Appellant is five feet eight inches tall. Thompson is five feet five and a half
inches tall with shoes on; he is five feet four inches without shoes. The distance from the
Sports Page bar to the crash site is approximately 4.2 miles. There were at least seven
controlled intersections along the driving route.
       Detective Brian Anthony of the Albany Police Department, formerly a patrol
officer, testified that, on June 14, 2008, at around 2:26 a.m., he performed a traffic stop
on a Dodge Intrepid driven by appellant. During the stop, he issued appellant a written
suspension and revocation order and orally informed appellant that her driving privilege
was suspended. The suspension was based on a preliminary alcohol screening device
which showed the presence of alcohol.
       Both defendants were convicted by the jury as charged. The court sentenced
appellant to 15 years, four months in state prison. Thompson was sentenced to 20 years,
10 months.
       Appellant filed a timely notice of appeal.



                                              8
                                      III. DISCUSSION
A.       Motion to Exclude Evidence of Appellant’s Responses to Questioning at the Scene.
         Appellant contends that the trial court erred in denying her motion to exclude
evidence of her responses to police questioning prior to being advised of her Miranda
rights at the scene of the accident. She argues that as soon as Officer Benz suspected that
she was driving under the influence of alcohol, she was not free to leave and should have
been advised of her rights before the officer began asking her the list of standard
investigative questions.
         1.     Factual background.
         Appellant moved in limine to exclude statements she made to Officer Benz at the
crash scene.
         Officer Benz testified at a pretrial Evidence Code section 402 hearing that, at
around 3:19 a.m. on August 15, 2009, he was dispatched to the scene of a vehicle
accident involving injuries near 1401 Grand Avenue in San Leandro. When he pulled up,
he noticed a black male walking away from the area and saw a car that had crashed into a
pole and was on fire. He approached the vehicle and saw appellant sitting 20 to 30 feet
away on a low retaining wall. Appellant was yelling, “I’m over here, I’m over here.”
Officer Benz asked if she was the driver of the vehicle and appellant said, “Yes, I’m over
here.”
         After assisting with the car and the people trapped inside, Officer Benz returned to
where appellant was still sitting on the retaining wall. Officer Benz asked appellant her
name and requested her driver’s license. Appellant did not respond. She repeatedly said
her leg was broken and asked about medical assistance. She did not give her name to the
officer.
         Officer Benz testified that he did not place appellant in handcuffs and she was not
in custody or under arrest. While speaking with her, Officer Benz noticed “a moderate
smell of alcohol coming from her person,” and saw that her eyes were red and watery.
Her speech was deliberate, and rambling at times. Officer Benz suspected that appellant



                                               9
was under the influence of alcohol and he proceeded to ask her the standard questions he
uses in every DUI investigation.
       Officer Benz asked her where she had been driving, and appellant responded that
she was driving from Oakland to San Leandro. Appellant did not answer his questions
about any mechanical problems with the car or whether she had any medical conditions.
Appellant kept saying her leg was broken, and the officer repeated that an ambulance was
on the way. Appellant did not answer when asked if she knew where she was or how
much she had had to eat or drink. Officer Benz did not ask appellant to perform field
sobriety tests because of her injuries.
       The trial court denied appellant’s motion because it found no Miranda violation
and ruled that the statements were admissible.
       2.     Legal Principles.
       “The prophylactic requirements of Miranda [v. Arizona (1966) 384 U.S. 436
(Miranda)] are familiar. In order to assure protection of the Fifth Amendment right
against self-incrimination under ‘inherently coercive’ circumstances, a suspect may not
be subjected to an interrogation in official ‘custody’ unless he has previously been
advised of, and has knowingly and intelligently waived, his rights to silence, to the
presence of an attorney, and to appointed counsel if he is indigent. . . . Statements
obtained in violation of Miranda are not admissible to establish his guilt.” (People v.
Boyer (1989) 48 Cal.3d 247, 271, overruled on other grounds by People v. Stansbury
(1995) 9 Cal.4th 824, 830, fn. 1.) “Consequently, unwarned statements that are otherwise
voluntary within the meaning of the Fifth Amendment must nevertheless be excluded
from evidence under Miranda.” (Oregon v. Elstad (1985) 470 U.S. 298, 307.)
       “Miranda warnings are required only where there has been such a restriction on a
person’s freedom as to render him ‘in custody.’ ” (Oregon v. Mathiason (1977) 429 U.S.
492, 495.) Whether an individual is “in custody” for Miranda purposes is an objective
test and, where no formal arrest has taken place, is resolved by asking whether the
circumstances “created a coercive atmosphere such that a reasonable person would have
experienced a restraint tantamount to an arrest.” (People v. Aguilera (1996) 51


                                             10
Cal.App.4th 1151, 1162.) “Two discrete inquiries are essential to the determination: first,
what were the circumstances surrounding the interrogation; and second, given those
circumstances, would a reasonable person have felt he or she was not at liberty to
terminate the interrogation and leave.” (Thompson v. Keohane (1995) 516 U.S. 99, 112,
fn. omitted.) Factors to consider in deciding the custody issue include the site of the
interrogation, whether objective indicia of arrest were present, and the length and form of
the questioning. (People v. Boyer, supra, 48 Cal.3d at p. 272.)
       The United States Supreme Court has made clear that “the initial determination of
custody depends on the objective circumstances of the interrogation, not on the subjective
views harbored by either the interrogating officers or the person being questioned.”
(Stansbury v. California (1994) 511 U.S. 318, 323.) “It is well settled, then, that a police
officer’s subjective view that the individual under questioning is a suspect, if undisclosed,
does not bear upon the question whether the individual is in custody for purposes of
Miranda. [Citation.] . . . Save as they are communicated or otherwise manifested to the
person being questioned, an officer’s evolving but unarticulated suspicions do not affect
the objective circumstances of an interrogation or interview, and thus cannot affect the
Miranda custody inquiry.” (Id. at p. 324.)
       Determining whether a defendant was in custody under Miranda is a mixed
question of law and fact. (People v. Ochoa (1998) 19 Cal.4th 353, 401.) “When
reviewing a trial court’s determination that a defendant did not undergo custodial
interrogation, an appellate court must ‘apply a deferential substantial evidence standard’
[citation] to the trial court’s factual findings regarding the circumstances surrounding the
interrogation, and it must independently decide whether, given those circumstances, ‘a
reasonable person in [the] defendant’s position would have felt free to end the
questioning and leave’ [citation].” (People v. Leonard (2007) 40 Cal.4th 1370, 1400.)
       3.     Analysis.
       Appellant argues that, when Officer Benz “suspected appellant was under the
influence and began asking her the list of standard investigative questions,” she was
subjected to a custodial interrogation without first being advised of her Miranda rights.


                                             11
       In Berkemer v. McCarty (1984) 468 U.S. 420, a seminal case cited by both parties,
the Supreme Court concluded that an officer’s roadside questioning of a motorist
detained pursuant to a routine traffic stop did not constitute custodial interrogation for
Miranda purposes. (Id. at pp. 435-440.) The court reasoned that the circumstances did
not sufficiently resemble custody because the questioning was brief and took place in
public. (Id. at p. 437.) The court contrasted a station house interrogation, “which
frequently is prolonged, and in which the detainee often is aware that questioning will
continue until he provides his interrogators the answers they seek.” (Id. at p. 438.)
       In another analogous case, People v. Mosley (1999) 73 Cal.App.4th 1081
(Mosley), our colleagues in the Second District held that the defendant’s statements,
made to the police while he was being treated in an ambulance for a gunshot wound
following a drive-by shooting, were admissible despite his not having received the
Miranda advisements. (Id. at pp. 1085, 1090-1091.) The officer asked the defendant
what happened; the defendant’s answers implicated him in the shooting. (Id. at p. 1086.)
In holding that the defendant was not in custody when the officer questioned him, the
court reasoned, “[a]ny restraint of defendant’s freedom of action was caused by the need
to treat his gunshot wound, which was still bleeding and was actively being treated
during the interview. He had not been placed under arrest because the police did not
know what had happened that caused him to be shot. . . . We also note that the
questioning was not accusatory or threatening, that defendant was not handcuffed, that no
guns were drawn, and that defendant was about to be transported to a hospital and not to
a police station or jail.” (Id. at p. 1091.)
       Here, appellant was not in custody for Miranda purposes when Officer Benz
questioned her at the scene prior to arresting her. She herself initiated contact with the
officer, calling to him, “I’m over here, I’m over here.” The questioning was brief and
took place in public, in view of passersby, at the scene of the collision. Officer Benz was
the only one questioning appellant, and the questions were non-accusatory and open-
ended. He asked her, for example, if she was the driver of the car, if she knew where she



                                               12
was, and if she had had anything to eat or drink. She was not handcuffed and was not
required to perform field sobriety tests.
       Appellant contends that she was not free to leave, i.e., in custody, both because of
her injuries and because Officer Benz suspected that she had been driving under the
influence of alcohol. We reject this argument. Any restraint on appellant’s freedom of
movement was caused by her injuries in the car crash, not by police action. (See Mosley,
supra, 73 Cal.App.4th at p. 1091.) Moreover, the officer’s suspicion that appellant had
been drinking did not transform the investigative questioning into a custodial
interrogation. Custody “depends on the objective circumstances of the interrogation, not
on the subjective views harbored by either the interrogating officers or the person being
questioned,” and thus Officer Benz’s suspicion is not pertinent to the issue of custody
under Miranda. (Stansbury v. California, supra, 511 U.S. at p. 323.)
       Under the totality of the circumstances, a reasonable person in appellant’s position
would not have believed herself to be in custody when Officer Benz questioned her.
Accordingly, the trial court did not err in admitting the evidence.
B.     The Aiding and Abetting Instruction.
       Appellant contends that the trial court erred in instructing the jury with the
prosecution’s special instruction that it did not have to unanimously agree upon, or
individually determine, whether appellant was the direct perpetrator or an aider and
abettor. The instruction was improper, according to appellant, because it “deprive[d]
appellant of the jury’s unanimous verdict beyond a reasonable doubt on every element of
the crimes” and relieved the individual jurors “of actually making this factual decision on
an element of the crimes charged.”
       Counsel for both codefendants objected to the aiding and abetting instructions
requested by the prosecution, claiming they were unsupported by the evidence. The trial
court overruled the objections and instructed the jury as follows:
       “A person may be guilty of a crime in two ways:
       “One, he or she may have directly committed the crime. I will call that person the
perpetrator. Two, he or she may have aided and abetted the perpetrator who directly


                                              13
committed the crime. A person is guilty of a crime whether he or she committed it
personally or aided and abetted the perpetrator. Under some specific circumstances, if
the evidence establishes aiding and abetting of one crime, a person may also be found
guilty of other crimes that occurred during the commission of the first crime.
          “To prove that the defendant is guilty of a crime based on aiding and abetting that
crime, the People must prove that:
          “One, the perpetrator committed the crime; two, defendant knew that the
perpetrator intended to commit the crime; three, before or during the commission of the
crime, the defendant intended to aid and abet the perpetrator in committing the crime;
and, four, the defendant’s words or conduct did, in fact, aid and abet the perpetrator’s
commission of the crime.
          “Someone aids and abets a crime if he or she knows of the perpetrator’s unlawful
purpose and he or she specifically intends to, and does in fact, aid, facilitate, promote,
encourage, or instigate the perpetrator’s commission of that crime.
          “If all of these requirements are proved, the defendant does not need to actually
have been present when the crime was committed to be guilty as an aider and abettor.
          “If you conclude that defendant was present at the scene of the crime or failed to
prevent the crime, you may consider that fact in determining whether the defendant was
an aider and abettor. However, the fact that a person is present at the scene of a crime or
fails to prevent the crime does not, by itself, make him or her an aider and abettor.”
          The prosecutor also requested, and the trial court provided, a supplemental special
instruction on aiding and abetting: “Those who aid and abet a crime and those who
directly perpetrate the crime are principals and equally guilty of the commission of that
crime. You need not unanimously agree, nor individually determine, whether a
defendant is an aider and abettor or a direct perpetrator. The individual jurors themselves
need not choose among the theories, so long as each is convinced of guilt. There may be
a reasonable doubt that the defendant was the direct perpetrator, and a similar doubt that
he or she was the aider and abettor, but no such doubt that he or she was one or the
other.”


                                               14
       Appellant contends that instructing the jury that it did not have to unanimously
determine whether she was the direct perpetrator or an aider and abettor violated her due
process rights. Specifically, she argues that this instruction deprived her of her federal
constitutional rights to due process and a fair trial and her state constitutional right to a
unanimous jury verdict based on facts found true beyond a reasonable doubt by each
juror by lowering the prosecution’s burden of proof on each element.
       On appeal, we apply the de novo standard of review to claims of instructional
error. (People v. Manriquez (2005) 37 Cal.4th 547, 581; People v. Posey (2004) 32
Cal.4th 193, 218.) “Review of the adequacy of instructions is based on whether the trial
court ‘fully and fairly instructed on the applicable law.’ [Citation.] ‘ “In determining
whether error has been committed in giving or not giving jury instructions, we must
consider the instructions as a whole . . . [and] assume that the jurors are intelligent
persons and capable of understanding and correlating all jury instructions which are
given.” [Citation.]’ [Citation.] ‘Instructions should be interpreted, if possible, so as to
support the judgment rather than defeat it if they are reasonably susceptible to such
interpretations.’ [Citation.]” (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.)
       In People v. Ortiz (2012) 208 Cal.App.4th 1354, our colleagues in the Fourth
District recently summarized the applicable law: “In a criminal case, a defendant has the
constitutional right to a unanimous jury verdict. (Cal. Const., art. I, § 16; People v. Russo
(2001) 25 Cal.4th 1124, 1132 (Russo).) Furthermore, ‘the jury must agree unanimously
the defendant is guilty of a specific crime.’ (Russo, at p. 1132.) ‘Therefore, cases have
long held that when the evidence suggests more than one discrete crime, either the
prosecution must elect among the crimes or the court must require the jury to agree on the
same criminal act. [Citations.] [¶] This requirement of unanimity as to the criminal act
“is intended to eliminate the danger that the defendant will be convicted even though
there is no single offense which all the jurors agree the defendant committed.” ’ (Ibid.)
       “However, ‘where the evidence shows only a single discrete crime but leaves
room for disagreement as to exactly how that crime was committed or what the
defendant’s precise role was, the jury need not unanimously agree on the basis or, as the


                                              15
cases often put it, the “theory” whereby the defendant is guilty.’ (Russo, supra, 25
Cal.4th at p. 1132.) ‘It is settled that as long as each juror is convinced beyond a
reasonable doubt that defendant is guilty of [a crime] as that offense is defined by statute,
it need not decide unanimously by which theory he is guilty.’ (People v. Santamaria
(1994) 8 Cal.4th 903, 918 [(Santamaria)].) Russo discussed examples of when there are
multiple, discrete crimes requiring a unanimity instruction and when there is only one
discrete crime based on multiple theories not requiring a unanimity instruction. (Russo,
at pp. 1132-1133.) ‘[T]ypical examples include the rule that, to convict a defendant of
first degree murder, the jury must unanimously agree on guilt of a specific murder but
need not agree on a theory of premeditation or felony murder [citation], and the rule that
the jury need not agree on whether the defendant was guilty as the direct perpetrator or as
an aider and abettor as long as it agreed on a specific crime [citation].’ (Id. at p. 1133.)
Furthermore, ‘[n]ot only is there no unanimity requirement as to the theory of guilt, the
individual jurors themselves need not choose among the theories, so long as each is
convinced of guilt. Sometimes, . . . the jury simply cannot decide beyond a reasonable
doubt exactly who did what. There may be a reasonable doubt that the defendant was the
direct perpetrator, and a similar doubt that he was the aider and abettor, but no such doubt
that he was one or the other.’ (Santamaria, at p. 919, [italics omitted].)” (People v.
Ortiz, supra, 208 Cal.App.4th at pp. 1374-1375; see also People v. McCoy (2001) 25
Cal.4th 1111, 1120 [“It is often an oversimplification to describe one person as the actual
perpetrator and the other as the aider and abettor. When two or more persons commit a
crime together, both may act in part as the actual perpetrator and in part as the aider and
abettor of the other, who also acts in part as an actual perpetrator. . . . In another shooting
case, one person might lure the victim into a trap while another fires the gun; in a
stabbing case, one person might restrain the victim while the other does the stabbing. In
either case, both participants would be direct perpetrators as well as aiders and abettors of
the other. The aider and abettor doctrine merely makes aiders and abettors liable for their
accomplices’ actions as well as their own. It obviates the necessity to decide who was



                                              16
the aider and abettor and who the direct perpetrator or to what extent each played which
role.”].)
       An instruction similar to the one given in this case was upheld as proper in People
v. Culuko (2000) 78 Cal.App.4th 307 (Culuko), in which the defendant, Culuko, the
child’s mother, was convicted of second degree murder, fatal assault on a child under the
age of 8, and felony child abuse, under facts from which the jury could conclude that
either Culuko or her cohabiting boyfriend struck the fatal blow to the child. (Id. at pp.
313-320.) On appeal, Culuko claimed that the instruction impermissibly permitted the
jury to find her guilty of murder without a finding of malice. The court rejected the
contention that it was error to give the instruction, pointing out that in fact the jury did
have to find that either Culuko or her boyfriend harbored malice, the “obvious candidate”
being the one who delivered the fatal blow. The jury simply did not have to determine
whether that defendant was Culuko or the boyfriend. (Id. at p. 323.)
       The Culuko court also noted that the instruction was a correct statement of law,
deriving from cases holding that the jury need not agree unanimously on whether the
defendant was the perpetrator or the aider and abettor. Regarding Culuko’s challenge to
the portion of the instruction stating that each individual juror did not have to decide
whether any given defendant was the perpetrator or the aider and abettor, the court noted
that this aspect of the instruction was nearly a direct quote from the Supreme Court’s
opinion in Santamaria, supra, 8 Cal.4th at page 919: “ ‘Not only is there no unanimity
requirement as to the theory of guilt, the individual jurors themselves need not choose
among the theories, so long as each is convinced of guilt. Sometimes, as probably
occurred here, the jury simply cannot decide beyond a reasonable doubt exactly who did
what. There may be a reasonable doubt that the defendant was the direct perpetrator, and
a similar doubt that he was the aider and abettor, but no such doubt that he was one or the
other.’ The court concluded it would be ‘absurd . . . to let the defendant go free because
each individual juror had a reasonable doubt as to his exact role.’ (Id., at p. 920, fn. 8;
accord, People v. Garrison [(1989)] 47 Cal.3d [746,] 781-782.)” (Culuko, supra, 78
Cal.App.4th at pp. 323-324.)


                                              17
       Appellant’s argument that the special instruction allowed the jury to return a guilty
verdict without finding unanimously that she was guilty beyond a reasonable doubt is
without merit. The jury reached a unanimous verdict that appellant was guilty of gross
vehicular manslaughter while intoxicated (count 1), driving under the influence causing
injury (count 2), driving with 0.08 percent blood alcohol causing injury (count 3), and
driving while the privilege was suspended for driving with a specified blood alcohol level
and when she had knowledge of the suspension (count 4). The court instructed the jury
in all the elements of each offense; in all the requirements for aider and abettor liability;
that appellant was presumed innocent; and that “this presumption require[d] that the
People prove a defendant guilty beyond a reasonable doubt.” The jury was also
instructed to “[p]ay careful attention to all of these instructions and consider them
together.” These instructions, together with the challenged instruction, unambiguously
placed the burden of proof beyond a reasonable doubt on the prosecution on every
element.
       Appellant contends that she is entitled to a jury verdict on all facts that are
elements of the crimes charged as opposed to alternate ways to commit the crime. She
argues that, here, “the act of driving is an element of vehicular manslaughter (§ 192,
subd. (c)(1), (2) & (3)) and driving under the influence (Vehicle Code, § 23153, subd. (a),
(b)) and so must be proven to the jury beyond a reasonable doubt.” Appellant relies on
Schad v. Arizona (1991) 501 U.S. 624, in which the United States Supreme Court upheld
instructions permitting the jury to reach one unanimous murder verdict based on various
mental state findings pertaining to premeditation or felony murder. (Id. at pp. 644-645.)
Appellant cites the portion of the opinion in which the court cautioned that a defendant
has a due process right to understand with specificity the charges against him, and that it
is an assumption of our criminal justice system that “no person may be punished
criminally save upon proof of some specific illegal conduct.” (Id. at p. 632.) According
to appellant, “[i]f an individual juror was not sure that appellant was the driver of the
vehicle and not sure about whether she was an aider and abettor, then appellant should
not have been convicted.”


                                              18
       We disagree. As we have stated, the jury reached a unanimous verdict against
appellant for the vehicular manslaughter and driving under the influence charges.
Appellant’s contentions are unavailing under settled authority that as long as each juror is
convinced beyond a reasonable doubt that a defendant has committed an offense, the jury
need not decide unanimously as between several proffered theories of liability. (People
v. Wilson (2008) 44 Cal.4th 758, 801 (Wilson); Russo, supra, 25 Cal.4th at pp. 1132,
1133.) “Thus, the jury need not decide unanimously whether a defendant was a direct
perpetrator or an aider and abettor, so long as it is unanimous that he was one or the
other.” (Wilson, supra, 44 Cal.4th at p. 801; Russo, supra, 25 Cal.4th at p. 1133; People
v. Santamaria, supra, 8 Cal.4th at pp. 918-919.)
       Appellant also argues that the instruction encouraged the jury to find her guilty if
she engaged in conduct that comprised only one element of the charged crime, the target
crime, or aiding and abetting, without finding each and every element beyond a
reasonable doubt. Under this approach, according to appellant, “the other occupants of
the car could also have been accomplices insofar as they all knew appellant was sitting on
Thompson’s lap and agreed to be driven under those circumstances.” Appellant bases her
argument on People v. Cook (1998) 61 Cal.App.4th 1364, 1369, in which the court
concluded that if a codefendant engaged in conduct that comprised one element of the
charged crime, he was a perpetrator, not an aider and abettor, and aiding and abetting
instructions need not be given. (Id. at p. 1371.)3 This ruling was rejected as
unconstitutional by the federal district court on habeas review. (Cook v. Lamarque (E.D.
Cal. 2002) 239 F.Supp.2d 985, 995.)
       This contention is meritless. The court instructed the jury on the specific elements
of aider and abettor liability, that the People must prove each of the requirements, and


       3
        After the instant appeal was fully briefed, the California Supreme Court issued
People v. Delgado ( 2013) 56 Cal.4th 480, 489, fn. 3, which specifically disapproved
People v. Cook, supra, 61 Cal.App.4th 1364, to the extent that it held “aiding and
abetting instructions need not be given if the evidence shows the defendant personally
performed any element of the charged offense . . . .”


                                             19
that “[w]henever I tell you the People must prove something, I mean they must prove it
beyond a reasonable doubt.” The court also instructed on the elements of each of the
underlying offenses. At no time did the court instruct the jury that it could find appellant
guilty without finding all the elements in a particular offense true beyond a reasonable
doubt. There was no evidence whatsoever that Jalisha Harris and Everett Jackson
specifically intended to, and did in fact, aid, facilitate, promote, encourage, or instigate
appellant’s commission of the charged offenses.
       Next, appellant argues that the challenged instruction was improper because it
allowed the jury to convict appellant “on a single act without agreeing unanimously on
that act.” Relying on the dissent in Culuko, appellant argues that, although a jury need
not unanimously determine whether a defendant was a perpetrator or an aider and abettor
of a single crime when more than one theory of liability is presented, “unanimity is still
required when the jurors could disagree on which act constituting the charged crime was
committed by the defendant.” (Culuko, supra, 78 Cal.App.4th at pp. 342-343, dis. opn.
of McKinster, P.J., and cases cited therein.) Specifically, appellant contends that
appellant’s guilt was based on a single act, not a course of conduct, and the jury could
have disagreed on whether “only one of the defendants [appellant or Thompson] was in
control of the vehicle or if they actually shared control.” Under the challenged
instruction, posits appellant, “the jury could have found both defendants guilty as aiders
and abettors without a single juror actually finding that either defendant was the driver of
the car.” Appellant also suggests the possibility that appellant got into the front seat and
“became unconscious while Thompson drove,” in addition to the possibility that the jury
could have found appellant guilty without finding beyond a reasonable doubt that she
acted with gross negligence or intended to aid and abet a target crime.
       These contentions have no merit because the basis of liability here was not
discrete acts. It is settled that a unanimity instruction is not required where the offenses
are so closely connected as to form a single transaction or where the offense itself
consists of a continuous course of conduct. (People v. Diedrich (1982) 31 Cal.3d 263,
282.) “ ‘ “This exception arises in two contexts. The first is when the acts are so closely


                                              20
connected that they form part of one and the same transaction, and thus one offense.
[Citations.] The second is when . . . the statute contemplates a continuous course of
conduct of a series of acts over a period of time. [Citation.]” ’ ” (People v. Napoles
(2002) 104 Cal.App.4th 108, 115 (Napoles).)
       As one court has put it, the “continuous [course of] conduct” exception “ ‘is quite
limited. There is a fundamental difference between a continuous crime spree and
continuous conduct resulting in one specific offense. The continuous conduct exception
only really applies, if at all, to those types of offenses where the statute defining the crime
may be interpreted as applying, on occasion, to an offense which may be continuous in
nature such as failure to provide, child abuse, contributing to the delinquency of a minor,
driving under the influence and the like [citations].’ ” (People v. Metheney (1984) 154
Cal.App.3d 555, 561.) The continuous course of conduct exception, therefore, is
“limited . . . to those cases where the two or more criminal acts are closely connected in
time so that they form part of one transaction or the crime is the type of offense which in
itself consists of a continuous course of conduct such as pandering, child abuse or
contributing to the delinquency of a minor. [Citation.]” (Id. at p. 561.)
       Thus, in Napoles, supra, 104 Cal.App.4th at pages 116-117, the People charged
defendants with one count of felony child abuse, occurring between two specific dates.
In concluding that the trial court erred in giving a unanimity instruction because the
offenses formed a continuous course of conduct, the court explained that the charging
language “alerts the jury that the charge consists of a continuous course of conduct, to be
proved by evidence of more than one individual act. Thus, from the trial’s inception, the
jury was aware that this was not a case where one illegal act is charged and several are
proven—a case, in other words, requiring a special instruction to protect the defendant’s
right to a unanimous jury.” (Id. at p. 117.) The court also pointed out that the evidence
presented at trial of “ ‘a systematic pattern of abuse rather than separate, isolated
incidents’ ” (ibid.) was consistent with a continuous course of conduct theory.
       Here, the evidence presented a course of conduct resulting in driving under the
influence offenses including gross vehicular manslaughter. The evidence did not present


                                              21
multiple possible instances of these offenses; that is, there were not multiple acts of gross
vehicular manslaughter or driving under the influence, nor were there multiple acts of
driving.
       Finally, even if it was error to give the challenged instruction, any error was
harmless beyond a reasonable doubt. (People v. Vanegas (2004) 115 Cal.App.4th 592,
602 [“An instructional error which creates an improper mandatory presumption falls
within the category of trial error subject to Chapman [v. California (1967) 386 U.S. 18,
24] review.”].) The jury was properly instructed to consider the instructions as a whole
and that the prosecution had the burden of proving appellant’s guilt beyond a reasonable
doubt. The jury is presumed to have followed these instructions. (People v. Mills (1991)
1 Cal.App.4th 898, 918 [presumption that jurors are intelligent and capable of correlating
all jury admonitions and instructions]; People v. Ryan (1981) 116 Cal.App.3d 168, 179
[jury is presumed to have followed instructions and obeyed the law].)
       The evidence was overwhelming that appellant was guilty beyond a reasonable
doubt. Appellant was seen drinking on several occasions throughout the day and
evening. She drove the Lexus earlier in the evening to drop off and then pick up Jalisha
Harris and to pick up Damarcus Thompson and Everett Jackson. Appellant sat on
Thompson’s lap in the driver’s seat on an approximately four mile drive which included
numerous turns and at least seven controlled intersections, culminating in the crash.
Appellant’s blood-alcohol content within hours after the crash was recorded as .10 and
.12 percent. The weight of the evidence supports the finding that appellant drove while
impaired in a reckless and grossly negligent manner. In light of the other instructions and
the evidence, any error in giving the challenged instruction was harmless beyond a
reasonable doubt. (Chapman v. California, supra, 386 U.S. at p. 24.)
C.     The Driving Instruction.
       Appellant contends the trial court erred in giving the following instruction based
on CALCRIM No. 2241: “A driver is a person who drives or is in actual physical control
of a vehicle. [¶] A person drives a vehicle when he or she intentionally causes it to move
by exercising actual physical control over it. The person must cause the vehicle to move,


                                             22
but the movement may be slight.” The problem with this instruction, according to
appellant, is the phrase, “actual physical control.” Under Mercer v. Department of Motor
Vehicles (1991) 53 Cal.3d 753 (Mercer), the jury should have been told that the person
driving was the one who intentionally caused the car to move. Under this interpretation,
appellant continues, if appellant had her hands on the steering wheel but Thompson had
his foot on the accelerator and the brake, then it was Thompson who had “actual physical
control” and caused the car to move.
       Appellant is correct that “the jury should have been told that the person driving
was the same one who intentionally caused the car to move.” And the jury was so
instructed, as is evident from the quoted language above.
       We find the instruction is a correct statement of the law. First, it tracks the
language of Vehicle Code section 305, which provides in part: “A ‘driver’ is a person
who drives or is in actual physical control of a vehicle.”
       Second, although “the term ‘drive’ is not defined in the Vehicle Code,” case law
holds “the term ‘drive’ means to steer or control a vehicle in motion.” (Padilla v. Mease
(1986) 184 Cal.App.3d 1022, 1027; see In re F.H. (2011) 192 Cal.App.4th 1465, 1472
[By grabbing the wheel, which caused the vehicle to change directions and crash, the
defendant “displaced the driver’s control and operation of the vehicle and made herself
the driver as she exercised actual physical control over the vehicle.”]); People v. Verlinde
(2002) 100 Cal.App.4th 1146, 1155 [holding that both defendants were driving the
vehicle under the influence of alcohol where one operated the steering wheel and the
other operated the stick shift and pedals]; In re Queen T. (1993) 14 Cal.App.4th 1143,
1145 [The defendant’s “act of steering the car, although she was not operating the
accelerator or brakes, renders her a ‘driver’ within the meaning of [Vehicle Code]
sections 305 and 23153.”].)
       Finally, the question posed in Mercer was a narrow one, as the court itself
articulated: “We now turn to the essential question posed in this case, namely, whether
an officer may make a ‘lawful arrest’ for ‘drunk driving’ in violation of section 23152[,
subdivision] (a), if the arrestee’s vehicle is lawfully parked and the officer has not


                                             23
observed the vehicle move.” (Mercer, supra, 53 Cal.3d at p. 761.) We had occasion
recently to discuss Mercer in People v. Nelson (2011) 200 Cal.App.4th 1083 (Nelson):
“. . . Mercer was found by police asleep and slumped over the wheel of a car legally
parked, its engine running. (Mercer, at p. 756.) He refused chemical tests after his
warrantless arrest for violation of section 23152. (Mercer, at pp. 756-757.) The court
extensively analyzed the meaning of the term ‘drive’ to determine if Mercer was lawfully
arrested for a violation of section 23152 in the absence of evidence that the arresting
officer observed his vehicle move, so as to answer the ultimate question of whether his
driver’s license could be suspended or revoked by statute because he refused the
chemical tests. (Mercer, at pp. 757-758.) In doing so, the court drew a distinction
between ‘drive’ and ‘operate.’ ” (Nelson, at p. 1091.) In a subsequent case, the Supreme
Court emphasized the limited applicability of Mercer when it stated, “[i]n Mercer, . . . the
issue was whether the ‘lawful arrest’ requirement of the implied consent statute
[citation] . . . had been met where, under the law then in effect, the officer lacked
statutory authority to effect a warrantless misdemeanor arrest for a driving-while-under-
the-influence offense that was not committed in the officer’s direct presence.”
(Troppman v. Valverde (2007) 40 Cal.4th 1121, 1136, fn. 11.) Mercer does not support
appellant’s narrow definition of driving. The instruction as given was correct.
D.     No Cumulative Prejudice.
       Appellant contends that the errors in this case cumulatively resulted in a trial that
was fundamentally unfair and that the combined prejudicial effect of all the errors
requires reversal. We disagree. None of the claimed errors actually constitute errors, and
thus there is no prejudice to cumulate.
E.     Correction of the Sentence.
       In her reply brief,4 appellant raises a sentencing error that was brought to her
attention by respondent. As to count 2, a subordinate offense, the trial court imposed


       4
        Along with her reply brief, appellant filed a motion for permission to raise this
issue on reply. We granted the motion.


                                             24
full-term sentences for two great bodily injury enhancements under Penal Code section
12022.7, subdivision (a), and two multiple injury enhancements under Vehicle Code
section 23558. However, section 1170.1, subdivision (a), provides that the subordinate
term for each consecutive offense “shall include one-third of the term imposed for any
specific enhancements applicable to those subordinate offenses.” Thus, the full-term
sentence enhancements on count 2 were unauthorized.
       Appellant requests that we remand the matter to the trial court with instructions to
impose one-third of the middle term on these enhancements on remand. Respondent
contends that the proper remedy would be to remand for resentencing. We agree with
respondent that the error requires a remand for resentencing. (See People v. Rodriguez
(2009) 47 Cal.4th 501, 509 [“remand will give the trial court an opportunity to restructure
its sentencing choices”]; People v. Navarro (2007) 40 Cal.4th 668, 681 [“remand for a
full resentencing as to all counts is appropriate, so the trial court can exercise its
sentencing discretion in light of the changed circumstances”].)
                                     IV. DISPOSITION
       The sentence is vacated and the matter is remanded for resentencing on all counts.
In all other respects, the judgment is affirmed.



                                                    _________________________
                                                    Haerle, Acting P.J.


We concur:


_________________________
Lambden, J.


_________________________
Richman, J.




                                              25
