Certified for Partial Publication.
Defendants Franklin Neal Brady and Richard Carkeek Mortensen were accused of causing the deaths of two firefighter pilots who collided when responding to a fire that broke out near defendants' methamphetamine laboratory in a wooded area of Mendocino County. They were tried jointly on various charges, including murder, manufacturing and conspiracy to manufacture methamphetamine with special allegations that their illegal acts caused two deaths, and recklessly causing a fire that resulted in the death of the firefighters.
Mortensen was convicted only of manufacturing and conspiring to manufacture methamphetamine. He appeals on the grounds that there is no substantial evidence to support the conviction and that the court improperly admitted evidence of a prior conviction for manufacturing methamphetamine. Brady was convicted of recklessly starting a fire that caused the deaths of the pilots and of manufacturing and conspiracy to manufacture methamphetamine. His primary contention on appeal is that the jury instructions and the exclusion of four categories of evidence precluded the jury from properly determining whether his conduct proximately caused the death of the pilots. He also contends that the trial court improperly removed six potential jurors for cause based on their stated inability to follow the court's incorrect instructions on proximate cause. In a supplemental brief, Brady contends that the trial court also erred in failing to instruct the jury that it must unanimously agree which activity constituted the manufacture of methamphetamine. In the published portion of this opinion, we address only the issues relating
We affirm the judgment in all respects.
Factual and Procedural History
Brady and Mortensen were charged by information with the murder of Lawrence Groff (count one, Pen.Code, § 187, subd. (a)); the murder of Lars Stratte (count two, Pen.Code, § 187, subd. (a)); manufacturing methamphetamine with special allegations that Groff and Stratte suffered great bodily injury and death during the commission of the offense (count three, Health & Saf.Code, §§ 11379.6, subd. (a), 11379.9, subd. (a)); recklessly setting a fire to a structure or forest land that caused the deaths of Groff and Stratte with special allegations that Groff and Stratte were killed while employed to suppress that fire (count four, Pen.Code, §§ 452, subd. (a), 452.1, subd. (a)(2)); and conspiracy to manufacture a controlled substance with the following overt acts: both defendants purchased chemicals to be used in manufacturing methamphetamine, transported and/or stored chemicals to be used in the process of manufacturing methamphetamine, and entered a trailer for the purpose of manufacturing methamphetamine (count five, Pen.Code, § 182, subd. (a)(1); Health & Saf.Code, § 11379.6, subd. (a)).
The following evidence was presented at trial:
At approximately 3:00 p.m. on August 27, 2001, a forest fire was reported in a wooded area of Mendocino County just south of Ukiah. Because of the remote location, air support was required to control the fire. California Department of Forestry and Fire Protection (CDF) officer James Davis supervised nine air tankers and three helicopters fighting the fire. Pursuant to CDF protocol, the air tankers carrying fire retardant flew counterclockwise at an altitude of 1,000 to 1,500 feet until they reached the fire, and then descended to approximately 200 feet as they approached the drop site.
About 6:40 p.m., after pilot Groff had completed six successful drops and Stratte had made five successful drops, Groff's plane collided with Stratte's plane. CDF Officer James Wattenburg, who was on the ground at the time of the collision, reported seeing Stratte's plane flying in pattern and then descending for its drop when a third plane approached from the wrong direction and collided with his plane. Other witnesses confirmed that Groff's plane was flying very low, below the tree line, and in the opposite direction than the other planes had been flying. Neither pilot survived the collision.
CDF Officer Jim Robertson was the first firefighter to reach the site where the fire started. When he arrived he saw a trailer that had almost burnt to the ground. The flames coming from the trailer were blue, green and orange. Other officers reported seeing purple and yellow colored smoke coming from the trailer. Neighbors Chris Fisher and Jennifer Provost were at the scene when Robertson arrived. Fisher testified that when he arrived at the scene the trailer was not on fire but that it burst into flames a few minutes later. He told Robertson that he thought people had been cooking methamphetamine in the trailer. Provost testified that she stopped at the scene because she saw a grass fire in a 20-foot wide oval about 10 feet from the trailer. Brady was there and asked for help, so she went home to get water. When she returned, the trailer was on fire and Brady was gone. Provost told Robertson that she had seen a black jeep leaving the scene of the fire. Robertson put out a radio bulletin for officers to be on the lookout for a possible arson suspect driving a black jeep.
The officers determined that defendants were likely manufacturing methamphetamine at the trailer, and Mortensen was arrested later that night at Brady's house. The arresting officer searched Brady's house pursuant to a search warrant and found a glass containing a mixture of acetone and methamphetamine in the freezer. In a box in a bedroom he also found three pipes and suspected methamphetamine residue. In Mortensen's black jeep the officer found store receipts dated August 26 and 27 for one gallon of acetone, four gallons of denatured alcohol, one pair of leather gloves, three 5-gallon buckets, and plastic tubing.
A toxicologist testified that a sample of Mortensen's blood, taken after his arrest, tested positive for a large quantity of methamphetamine, indicating that he was a regular user. Brady's blood also tested positive for methamphetamine, albeit for a much smaller concentration.
CDF Officer Ceriani, an expert on the use of solvents and accelerants in the investigation of wildfires, investigated the fire on August 27. Ceriani identified one point of origin of the fire in or around the firepit outside the trailer. He did not go into the trailer because it appeared to have been a methamphetamine laboratory and he requested the Mendocino Major Crimes Task Force to investigate. He opined, however, that the trailer must have burned at a higher than normal temperature to cause the damage he observed, and that a sudden ignition of a large quantity of accelerants likely caused a pressure wave that pushed the windows out of the trailer.
Task Force Officer Robert Nishiyama investigated the fire scene and testified as an expert in the recognition of methamphetamine laboratories. He explained how glass laboratory equipment found inside the trailer is used to manufacture methamphetamine. Nishiyama also reported finding three heating mantles in the trailer. Although a number of the members of the family of Joe Edelman, who owned the trailer, testified that the trailer did not have electricity and that the generators had not worked for years, Nishiyama identified wires that may have been connected to the heating mantles and a power strip next to the mantles with what appeared to be remnants of plugs and wires leading into it. Nishiyama also found a Coleman camp stove and Coleman fuel in and around the trailer. Finally, he testified that the liquid mixture found in Brady's freezer was evidence of a finished "cook" because the dirty methamphetamine is washed in acetone at the end of the ephedrine reduction manufacturing process. Based on this evidence, Nishiyama believed the trailer was an operational laboratory and not merely a storage facility.
Mathew Kirsten, a California Department of Justice criminalist, also investigated the fire. He tested personal items taken from defendants after their arrest and found traces of methamphetamine and ephedrine on their clothing. He confirmed
Officer Mark McNelly, a special agent with the Mendocino Major Crimes Task Force at the time of the fire, also examined the burnt-out trailer. Based on the placement of the glassware that he found, he also believed the trailer was an operational lab, not merely a storage facility.
Brady testified that during the summer of 2001, he had gone to the trailer approximately six times to help Edelman clean the area to prepare it for sale. Sometime in August 2001, Mortensen had come to the trailer with Brady, and Brady had suggested that he store his lab equipment there. Brady knew that the equipment was used for making methamphetamine.
On August 26, 2001, Brady and Mortensen went to several stores, where Mortensen bought duct tape, a hose, denatured alcohol, and acetone. Brady assumed that Mortensen was buying the materials to manufacture methamphetamine. That night they drove to the Edelman property and spent the night. The following morning Mortensen put his glassware and recent purchases in the trailer. Later that afternoon, Brady started a fire in the fire ring to boil water for a sitz bath because his hemorrhoids were bleeding.
Brady admitted that he had been convicted in 1996 of the crime of possession of methamphetamine with the intent to distribute.
Mortensen also testified at trial. He explained that he had been storing his laboratory equipment in Lodi but needed to move it, and Brady suggested he store the equipment in the trailer. He had made two prior trips to the trailer to store the equipment. On the morning of August 27, he and Brady went to the trailer to store some additional equipment. Later in the day, he fell asleep on a couch. When he awoke, he saw smoke near the trailer and Brady told him to get some water. They tried to fight the fire but it grew too big. Mortensen went back to the Edelman house and called 911. Then they left.
Mortensen acknowledged that he had purchased denatured alcohol, buckets and hoses the day before, and explained that he purchased the items because he "was getting ready to ... do a trip" or cook methamphetamine. However, he had no intention of manufacturing methamphetamine in the trailer because it had no electricity, no running water and no functioning gas stove. He also acknowledged buying the acetone the day before the fire, but explained that he did so to clean some dirty methamphetamine he had purchased. He cleaned his drugs and stored the excess
Brady's live-in girlfriend, Carolyn Roseborough, confirmed that Mortensen had visited their house on Sunday, August 26, and that he and Brady left for the trailer that evening after dinner.
Donald Lykins, a retired pilot and aircraft accident investigator, testified that the normal pattern for tankers is to fly in a counterclockwise pattern, at an altitude of about 3,000 feet, circling left until the supervising plane gives the drop signal. Then they descend, drop the fire retardant and exit low to avoid the other planes. He opined that Groff's plane entered the pattern abnormally, flying too low and in the wrong direction.
Michael Padilla, the CDF chief of aviation, testified that aircraft accidents while fighting wildfires are not unusual in California. In the past 40 years, there have been a total of 30 deaths of aircraft personnel fighting fires in California. However, there had been only one other midair collision of two CDF airplanes in the last 40 years.
Cyrillis Holmes, an arson investigator, examined the reports and evidence of the fire and concluded that the fire started in or around the fire ring. He also testified that the woodland fire was not caused or accelerated by the trailer burning. By the time the trailer caught fire, the woodland fire had spread beyond it.
At the conclusion of the trial, the prosecutor amended the complaint to state an additional cause of action for a violation of Penal Code section 452, subdivision (c), unlawfully causing a fire of a structure or forest land. After the jury had deliberated for six and one-half days, a juror was dismissed for misconduct. When an alternate juror was substituted, the jury deliberated for an additional three days. Ultimately, the jury found both defendants not guilty of the murders of Groff and Stratte, guilty of manufacturing and conspiring to manufacture methamphetamine, and not true the allegation that Groff and Stratte suffered great bodily injury and death during the commission of that offense. The jury found Brady, but not Mortensen, guilty of recklessly starting a fire that caused the death of the two pilots.
The court sentenced Brady to a total of 13 years eight months in prison and Mortensen to seven years in prison. Both defendants filed timely notices of appeal.
I. Mortensen's Appeal
II. Brady's Appeal
Brady's primary arguments relate to whether his conduct in starting the fire proximately caused the deaths of the two pilots. He argues that the intervening acts of the pilot Groff and others were superseding causes that absolved him of
A. Proximate Cause
Brady contends that the trial court's instructions and exclusion of evidence precluded the jury from properly determining the issue of proximate cause. He contends: "(a) The intentional act of the deceased, or other third party, could constitute a defense if it were unforeseeable. (b) A natural cause, such as pilot incapacitation, could constitute a defense if it were unforeseeable. (c) The negligent act of the deceased could constitute a defense if that act were both extraordinar[ily] negligent and unforeseeable. (d) The negligent act of a third person, other than the deceased, could constitute a defense if it were unforeseeable." Although Brady properly emphasizes the role of foreseeability in determining proximate cause, or the scope of his liability, we do not agree that the foreseeability of the fatal collision was improperly submitted to the jury in this case.
1. Defining Proximate Cause
"The principles of causation apply to crimes as well as torts. [Citation.] `Just as in tort law, the defendant's act must be the legally responsible cause ("proximate cause") of the injury, death or other harm which constitutes the crime.'" (People v. Schmies (1996) 44 Cal.App.4th 38, 46-47, 51 Cal.Rptr.2d 185 (Schmies).) So too, California criminal law relies on civil law formulations of concurrent and superseding cause. (See People v. Sanchez (2001) 26 Cal.4th 834, 855, 111 Cal.Rptr.2d 129, 29 P.3d 209 (conc. opn. of Kennard, J.) [citing Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 573, fn. 9, 34 Cal.Rptr.2d 607, 882 P.2d 298, for definition of superseding cause]; People v. Roberts (1992) 2 Cal.4th 271, 315-320, 6 Cal.Rptr.2d 276, 826 P.2d 274 [discussing similarities between analysis of causation in Palsgraf v. Long Island R.R. Co. (1928) 248 N.Y. 339, 162 N.E. 99 and the natural and probable consequences doctrine applicable in criminal law]; Schmies, supra, 44 Cal.App.4th at p. 49, 51 Cal.Rptr.2d 185 [relying on the Rest.2d Torts, 442A, p. 468, for definition of superseding cause].)
"`[T]he law defines "cause" in its own particular way.'" (Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 1053, 1 Cal.Rptr.2d 913, 819 P.2d 872.) A "cause of [death] is an act or omission that sets in motion a chain of events that produces as a direct, natural and probable consequence of the act or omission the [death] and without which the [death] would not occur." (CALJIC No. 3.40.) In People v. Roberts, supra, 2 Cal.4th 271, 6 Cal.Rptr.2d 276, 826 P.2d 274, the Supreme Court emphasized the primary significance of foreseeability to proximate cause. "The object of the criminal law is to deter the individual from committing acts that injure society by harming others, their property, or the public welfare, and to express society's condemnation of such acts by punishing them. `The purpose of the criminal law is to define socially intolerable conduct, and to hold conduct within ... limits ... reasonably acceptable from the social point of view.' [Citation.] `Modern penal law is founded on moral culpability. The law punishes a person for a criminal act only if he is morally responsible for it. To do otherwise would be both inhumane and unenlightened. As was said in Holloway v. United States, 80 U.S.App.D.C. 3, 5, 148 F.2d 665, 666, "Our collective conscience does not allow punishment where it cannot impose blame."'" (People v. Roberts, supra, at p. 316, 6 Cal.Rptr.2d 276, 826 P.2d 274.) "The criminal law thus is clear that
"In general, `[p]roximate cause is clearly established where the act is directly connected with the resulting injury, with no intervening force operating.'" (Schmies, supra, 44 Cal.App.4th at pp. 48-49, 51 Cal.Rptr.2d 185.) If an intervening act, event or force is present, however, it is necessary to determine whether that act, event or force is sufficient to absolve the defendant of liability "because the `defendant may also be criminally liable for a result directly caused by his or her act, even though there is another contributing cause.'" (People v. Cervantes (2001) 26 Cal.4th 860, 866-867, 111 Cal.Rptr.2d 148, 29 P.3d 225; People v. Sanchez, supra, 26 Cal.4th at p. 847, 111 Cal.Rptr.2d 129, 29 P.3d 209 ["`"There may be more than one proximate cause of the death. When the conduct of two or more persons contributes concurrently as the proximate cause of the death, the conduct of each is a proximate cause of the death if that conduct was also a substantial factor contributing to the result"'"].)
"In law, the term `superseding cause' means `an independent event [that] intervenes in the chain of causation, producing harm of a kind and degree so far beyond the risk the original [wrongdoer] should have foreseen that the law deems it unfair to hold him responsible.'" (People v. Sanchez, supra, 26 Cal.4th at p. 855, 111 Cal.Rptr.2d 129, 29 P.3d 209 (conc. opn. of Kennard, J.).) "`In general, an "independent" intervening cause will absolve a defendant of criminal liability. [Citation.] However, in order to be "independent" the intervening cause must be "unforeseeable ... an extraordinary and abnormal occurrence, which rises to the level of an exonerating, superseding cause." [Citation.] On the other hand, a "dependent" intervening cause will not relieve the defendant of criminal liability. "... If an intervening cause is a normal and reasonably foreseeable result of defendant's original act the intervening act is `dependent' and not a superseding cause, and will not relieve defendant of liability."'" (People v. Cervantes, supra, 26 Cal.4th at p. 871, 111 Cal.Rptr.2d 148, 29 P.3d 225; see also Schmies, supra, 44 Cal.App.4th at pp. 49-50, 51 Cal.Rptr.2d 185.) "`[W]here [an] injury was brought about by a later cause of independent origin ... [the question of proximate cause] revolves around a determination of whether the later cause of independent origin, commonly referred to as an intervening cause, was foreseeable
"[T]here is no bright line demarcating a legally sufficient proximate cause from one that is too remote. Ordinarily the question will be for the jury, though in some instances undisputed evidence may reveal a cause so remote that a court may properly decide that no rational trier of fact could find the needed nexus." (People v. Roberts, supra, 2 Cal.4th at p. 320, fn. 11, 6 Cal.Rptr.2d 276, 826 P.2d 274.)
Schmies, supra, 44 Cal.App.4th 38, 51 Cal.Rptr.2d 185 is instructive. In Schmies, the defendant was convicted of vehicular manslaughter with gross negligence and reckless driving causing great bodily injury. The conviction arose out of an incident in which the defendant engaged two California Highway Patrol (CHP) officers in a high-speed chase, during which one of the officers crashed into another car killing the driver. On appeal, defendant challenged the trial court's exclusion of evidence that the officer unreasonably violated CHP chase guidelines. In upholding the exclusion of this evidence, the court reiterated that "`[i]t has been repeatedly held that contributory negligence is not available as a defense or excuse for crime.' [Citation.] The conduct of the victim or other third persons, whether negligent or even criminally proscribed, is not, in itself, a defense to crime." (Id. at p. 46, 51 Cal.Rptr.2d 185.) Accordingly, evidence of the unreasonableness of the officers' conduct was not relevant because the negligence of the officers was not a defense to the charges against the defendant. "[T]he fact that the officers may have shared responsibility or fault for the accident does nothing to exonerate defendant for his role." (Id. at p. 51, 51 Cal.Rptr.2d 185.) The relevant question was "whether defendant realized or should have realized that the CHP officers would pursue his fleeing motorcycle.... The test, as we have recounted, is not whether officers acted reasonably but rather whether the defendant realized or should have realized that the officers would respond as they did." (Id. at p. 55, 51 Cal.Rptr.2d 185.) Thus, the court concluded that "[t]he task of the jury is to determine whether the officers' response was so extraordinary that it was unforeseeable, unpredictable and statistically extremely improbable." (Id. at p. 56, 51 Cal.Rptr.2d 185.)
2. Jury Instructions on Proximate Cause
The trial court gave the following instructions to the jury regarding causation:
Court's Instruction Number 2:
CALJIC No. 3.41:
Court's Instruction Number 5:
CALJIC No. 8.56:
Brady argues that the statement in CALJIC No. 3.41, that "it is no defense that the conduct of some other person, even the deceased person, contributed to the death," and the whole of CALJIC No. 8.56, conflict with the court's instruction No. 5. The former instructions, he asserts, precluded the jury from finding that Groff's conduct was a superseding cause that eliminated his responsibility for the air collision. As discussed above, however, a defendant whose conduct was a proximate cause of harm is not absolved of responsibility because another person's conduct, negligent or otherwise, is also a substantial or contributing factor in causing the harm. The act of another constitutes a superseding cause precluding responsibility of the initial actor only if the other's conduct is both unforeseeable and causes harm that was not the foreseeable consequence of the initial actor's conduct. In this regard, CALJIC Nos. 3.41 and 8.56 and instruction No. 5 provide accurate statements of the law. (See People v. Bland (2002) 28 Cal.4th 313, 338, 121 Cal.Rptr.2d 546, 48 P.3d 1107 [CALJIC Nos. 3.40 and 3.41 correctly define proximate cause where evidence suggests more than one cause of injury].)
Although additional clarity might have been helpful, Brady did not object to the instructions on this ground or propose a modification to clarify these instructions. He objected to CALJIC No. 8.56 only on
Brady now suggests that instruction No. 5 was inadequate because it failed to define "disconnected," and that if disconnected means having no relationship to his act the instruction was incorrect. "The law is settled that when terms have no technical meaning peculiar to the law, but are commonly understood by those familiar with the English language, instructions as to their meaning are not required." (People v. Anderson (1966) 64 Cal.2d 633, 639, 51 Cal.Rptr. 238, 414 P.2d 366.) "Disconnected" as used in the court's instruction has no technical meaning. Moreover, its common meaning—"having no connection (with something else)" or being "not well-connected" (Oxford English Dict. (2d. ed.1998) http://www.oed.com)—when read in conjunction with the rest of the sentence, is not inconsistent with the law of proximate cause. (See People v. Harris (1975) 52 Cal.App.3d 419, 428, fn. 4, 125 Cal.Rptr. 40
The instructions as a whole properly focused on whether the deaths of the two firefighters were reasonably foreseeable consequences of recklessly setting the fire in the woods. Under CALJIC No. 3.40, Brady was not guilty unless the deaths resulted as "a direct, natural and probable consequence" of his conduct, that is, under the court's instruction No. 2, as the "normal and ... reasonably foreseeable result of the original act."
The court's failure sua sponte to define "disconnected" caused no confusion similar to that found in People v. Hebert, supra, 228 Cal.App.2d at pages 519-521, 39 Cal.Rptr. 539, upon which Brady relies. In Hebert, the instructions told the jury that "in order to find the defendant guilty of either murder or involuntary manslaughter the jury must find that the injury inflicted by defendant was a proximate cause of the death and that `The proximate cause of an injury is that cause which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred. It is the efficient cause—the one that necessarily sets in operation the factors that accomplish the injury.'" The court also instructed that "`to be a legal cause of death, a defendant's act must be its proximate cause not merely its possible cause. A defendant's act may be considered the proximate cause of the death of another though it is not the immediate cause, if it is the ultimate cause. But where there is a supervening cause the defendant's act cannot be considered a proximate cause. The fact, if it be a fact, that the deceased or some other person or persons were guilty of negligence, which was a contributory cause of the death involved in the case, is not deemed to be a supervening cause and is no defense to a criminal charge if the defendant's own conduct was a proximate cause of the death.'" (Id. at p. 519, 39 Cal.Rptr. 539.) The trial court failed to define "efficient intervening cause" or "supervening cause" (id. at p. 520, 39 Cal.Rptr. 539), and the appellate court concluded that "in an effort to understand the full purport of the instructions the minds of the jurors would have been distracted from the question of foreseeability of future injury. They were told to look for an `efficient intervening cause' or a `supervening cause' as if it made no difference whether after-occurring causes were reasonably foreseeable." (Id. at p. 521, 39 Cal.Rptr. 539.) In the present case, however, the court's instructions did focus on the need to determine whether the deaths of the two firefighters were the reasonably foreseeable consequences of Brady's conduct, rather than disconnected happenings. The failure to define "disconnected" did not distract the jury from the ultimate question of whether the deaths were caused by a chain of events that was the "direct, natural and probable consequence" of Brady's conduct.
People v. Roberts, supra, 2 Cal.4th 271, 6 Cal.Rptr.2d 276, 826 P.2d 274, another case on which Brady relies, is to the same effect. In Roberts, the defendant was charged with the murder of a prison guard. Defendant had stabbed a fellow inmate named Gardner, who chased him up a flight of stairs and ultimately stabbed and killed the guard at the top of the stairs. (Id. at pp. 294-295, 6 Cal.Rptr.2d 276, 826 P.2d 274.) The jury was instructed that if defendant caused Gardner to lose his faculties and stab the guard while in a state of delirium or a similar state of unconsciousness, it was immaterial that Gardner's conduct was unforeseeable. (Id. at p. 315, 6 Cal.Rptr.2d 276, 826 P.2d 274.)
Moreover, any need for amplification was provided by the closing arguments of the attorneys. The prosecutor explained, "All that needs to be shown for foreseeability, to hold the defendants accountable [is] that they could foresee this type of harm, is that a possible consequence which might reasonably have been contemplated is enough. The precise consequence need not have been foreseen. According to the law, it is enough if the possibility of some harm of the kind which resulted from the act was foreseeable." Mortensen's attorney elaborated further. "There are two steps that you have to go through in order to find causation.... First you have to realize that there is an intervening event that was the immediate cause of the pilots' deaths, and that was the midair collision. It was not the fire. The pilots did not die by fire, by smoke inhalation, by anything directly connected with the fire itself.... [¶] ... [S]ince there is the intervening act it's called, the intervening event, the collision, you have to determine first of all whether or not that collision was foreseeable to someone in the defendants' position, a reasonable person starting a fire.... [¶] The second step is if it was foreseeable, reasonably foreseeable, something that someone would have considered, then was there causation ... was the collision a direct causal result ... of the fire. In other words, ... did the fire have ... anything to do with this collision?" Thus, both attorneys focused the jury's attention on the critical question of whether the deaths of the two firefighters responding to the fire that Brady started were reasonably foreseeable consequences of setting the fire. Both arguments were consistent with the court's instructions. The issue was properly framed for the jury's determination.
3. Excluded Evidence
Brady does not dispute that there is substantial evidence to support the finding that the deaths of the two firefighters was a foreseeable consequence of what the jury found to be his reckless conduct in setting the fire.
a. Evidence of Groff's Blood-Alcohol Level
Brady first contends that the trial court erred in excluding evidence that Groff's blood-alcohol level reflected in a postmortem toxicology report was .044 percent, slightly more than the .04 percent permitted by the FAA. Brady argues that this evidence would have relieved him of liability "(a) if flying under the influence was a concurrent cause of his death, and (b) if such intentional misconduct was not reasonably foreseeable." The initial problem with Brady's position is that his offer of proof did not extend as far as his argument. While the proffered evidence was that Groff's blood-alcohol level was .004 per cent higher than permitted by the FAA, there was no offer to prove that the alcohol had an appreciable effect on Groff's flying abilities or was a substantial factor in causing the collision. Indeed, the evidence was that Groff was in the air for several hours, making six prior drops of fire retardant with no signs of aberrant behavior, before the fatal collision.
"It is the burden of the proponent of evidence to establish its relevance through an offer of proof or otherwise," and a specific offer of proof is necessary in order to preserve an evidentiary ruling for appeal. (Schmies, supra, 44 Cal.App.4th at pp. 51, 53, 51 Cal.Rptr.2d 185 .) "An offer of proof should give the trial court an opportunity to change or clarify its ruling and in the event of appeal would provide the reviewing court with the means of determining error and assessing prejudice. [Citation.] To accomplish these purposes an offer of proof must be specific. It must set forth the actual evidence to be produced and not merely the facts or issues to be addressed and argued." (Id. at p. 53, 51 Cal.Rptr.2d 185.) In support of a pretrial motion to dismiss, Mortensen's attorney submitted a letter from a Dr. Donald R. Rogers, who opined that "At a blood alcohol level of 50 milligrams percent, judgment is often impaired, but no one appears intoxicated to a casual observer. This impairment could explain the apparent mistake made by Mr. Groff to cause the collision." (Italics added.) Brady relied on this letter in urging admission of the evidence of Groff's blood-alcohol level. In a subsequent motion for reconsideration of the ruling excluding the evidence, he reiterated that Rogers will "opine that Groff's alcohol consumption could have caused Groff's erratic flying during his last
In any event, Brady's attempt to define Groff's "intentional misconduct of flying under the influence of alcohol" as a superseding cause of the pilots' deaths is unavailing. The issue of proximate causation is increasingly being viewed in terms of the scope of the risk created by the wrongdoer's conduct. (See, e.g., 1 Dobbs, The Law of Torts (2001) §§ 186-187, pp. 460-464; Rest.3d, Torts (Proposed Final Draft No. 1) §§ 29, 33, 34.) "[C]ourts usually reduce the tests of proximate cause, both in direct and in intervening cause cases, to a question of foreseeability. To some extent, the language of foreseeability is a short hand expression intended to say that the scope of the defendant's liability is determined by the scope of the risk he negligently created." (1 Dobbs, The Law of Torts, supra, § 187, p. 463.) "Recognizing that the underlying issue is scope of the risk and that a separate superseding cause analysis pursues a foreseeability determination already made in assessing the scope of the risk the defendant negligently created, courts have concluded that instructions about superseding cause are both duplicative and confusing. [Fn. omitted.] Consequently, the issue in intervening cause cases, like the issue in others, is whether the general type of harm inflicted was foreseeable and thus within the risk of harm created by the defendant's negligent conduct." (Id. (2004 supp.) § 197A, pp. 92-93.) According to the draft of the Restatement Third of Torts, section 34 (Proposed Final Draft No. 1), "When a force of nature or an independent act is also a factual cause of physical harm, an actor's liability is limited to those harms that result from the risks that made the actor's conduct tortious."
Even if Brady had proffered sufficient evidence to support a finding that Groff's alcohol consumption was a substantial factor in causing the midair collision, this finding would not have affected the collision's foreseeability to Brady, and thus would not have absolved him of responsibility for the deaths.
Moreover, even if the evidence of Groff's blood-alcohol level had been admitted, the outcome would necessarily have been the same. The jury heard all of the evidence that was presented describing the collision. It learned that the accident was not the more common collision of a single aircraft engaged in fighting a forest fire, but occurred when Groff's plane approached the fire zone from the wrong direction and at the wrong altitude, colliding with the second plane. Based on this evidence, the jury concluded that the pilots' deaths were reasonably foreseeable consequences of setting the fire which predictably brought the airborne firefighters to extinguish it. For the jury to have found Groff's flying with alcohol in his system to be a superseding cause, it would have been required to find not only that Groff's conduct was unforeseeable, but that the resulting fatal collision was also unforeseeable. Since the jury necessarily rejected the latter proposition when it found that the pilots' deaths were proximately caused by the fire, excluding the evidence did not prejudice Brady's defense.
b. Evidence of Groff's Failure to Comply with CDF Aviation Regulations
The evidence that Groff failed to make radio contact prior to entering the fire area in violation of the CDF protocol also was properly excluded. Under the court's instructions, the jury could properly
Brady cites People v. Morse (1992) 2 Cal.App.4th 620, 3 Cal.Rptr.2d 343, but that case supports exclusion of the proffered evidence. In Morse, the defendant was convicted of murdering two police officers who were killed while attempting to dismantle a bomb that the defendant had made. On appeal the defendant contended that the trial court "wrongfully excluded evidence of victim negligence relevant to proximate cause." (Id. at p. 631, 3 Cal.Rptr.2d 343.) The court first noted that defendant had failed to preserve the issue in the trial court, but proceeded to reiterate the well established rule "`in criminal prosecutions that the contributory negligence of the victim is not a defense. [Citations.] In order to exonerate a defendant the victim's conduct must not only be a cause of injury, it must be a superseding cause. "A defendant may be criminally liable for a result directly caused by his act even if there is another contributing cause. If an intervening cause is a normal and reasonably foreseeable result of defendant's original act the intervening act is `dependent' and not a superseding cause, and will not relieve defendant of liability." [Citations.] Thus, it is only an unforeseeable intervening cause, an extraordinary and abnormal occurrence, which rises to the level of an exonerating, superseding cause.'" (Id. at p. 639, 3 Cal.Rptr.2d 343.) Brady made no proffer showing that there is anything extraordinary, abnormal, or unforeseeable about Groff's failure to comply with aviation regulations. Even if there were, the resulting collision remains what the jury found to be a foreseeable consequence of having started the forest fire.
c. Evidence of Groff's Physical Incapacitation
Brady's proffered evidence of Groff's physical and mental incapacity resulting from a combination of heat, dehydration and loss of orientation was also properly excluded. So long as the jury found the collision to be a reasonably foreseeable consequence of the fire, the fact that the immediate cause of the accident was a pilot's dehydration and disorientation would have no effect on Brady's liability. Indeed, that is probably the chain of causation that a jury would consider most likely. A reasonable jury could not have concluded that it was "extraordinary and abnormal" that a pilot repeatedly flying over a forest fire and dropping fire retardant from 200 feet above the fire might become overheated or disoriented.
Contrary to Brady's argument, this "natural cause" of the collision is not entitled to special consideration as a superseding cause. In People v. Hebert, supra, 228 Cal.App.2d at pages 519-520, 39 Cal.Rptr. 539, the court held that confusing instructions on proximate cause precluded the jury from evaluating the foreseeability of an intervening cause. Although the defendant had punched the drunken victim, the victim's subsequent fall while in police custody could have been found to be a superseding cause. "The jury could well
d. Evidence that Groff's plane was Negligently Maintained
Brady argues that evidence of negligent maintenance of Groff's plane was excluded erroneously because another person's "[o]rdinary negligence may be a supervening cause, if that negligent act is not a response to the defendant's original wrongful act, and if that ordinary negligence is not foreseeable." As we have stated previously, there is no relevance to whether the maintenance of the aircraft was negligent, except as it may bear on the issue of foreseeability. (E.g., Schmies, supra, 44 Cal.App.4th at pp. 51-52, 51 Cal.Rptr.2d 185.) However, it is unnecessary to consider whether evidence of poor maintenance might reach this threshold because defendant's proffered evidence simply was not sufficient to show that the accident was caused by a mechanical malfunction. Brady offered as evidence of negligent maintenance the testimony of Groff's widow that the engine on Groff's plane had failed one week prior to the accident, and that another pilot had complained that the cockpit of a similar plane had been leaking carbon monoxide exhaust a month prior to the accident. There is, however, no evidence that engine failure caused the accident, and the evidence that the crash may have been caused by carbon monoxide poisoning is highly speculative.
4. Preinstruction on Proximate Cause
B. The Unanimity Instruction.
The judgments are affirmed.
We concur: CORRIGAN, Acting P.J., and PARRILLI, J.
As discussed in part 3.a., post, the concept of a superseding cause may be subsumed within the concept of proximate causation, which does not extend liability to unforeseeable consequences. CACI No. 432, it should be noted, makes no use of the term "superseding cause."