People v. Weller

          MALLANO, P. J.

         While driving near the farmers market in Santa Monica, defendant, George Weller, bumped into a car that was stopped in front of him. Rather than remaining at the scene, defendant proceeded through the farmers market at a high rate of speed as he hit scores of patrons and vendors, killing 10 and injuring 68. Defendant was convicted by jury of 10 counts of felony vehicular manslaughter with gross negligence (Pen. Code, § 192, subd. (c)(1)) and was granted probation. He appeals, contending that the trial court erred in ruling on evidence and jury instructions and in denying his motion for a new trial. We affirm.

         BACKGROUND

         Arizona Avenue in Santa Monica runs in an east-west direction. Proceeding from east to west, it intersects Fifth Street, Fourth Street, the Third Street Promenade, and Second Street, and terminates at a T-intersection with Ocean Avenue. On Wednesday, July 16, 2003, an open-air farmers market was being held on Arizona Avenue, with booths set up on both sides of the street from a point midway between Fourth Street and the Third Street Promenade, extending west to Ocean Avenue.

         1. Prosecution Case

         a. Farmers market incident

         Around 1:30 p.m. on July 16, 2003, defendant drove his 1992 Buick LeSabre to the Santa Monica post office, where he put a letter in the curbside mailbox on the west side of Fifth Street just north of Arizona. He then turned right onto Arizona and proceeded westbound toward Fourth Street. At the intersection of Arizona and Fourth, Pauline Kokozyon was sitting in her Mercedes Benz, which was stopped in the right-hand lane while Kokozyon waited for pedestrians to clear so she could make a right turn from Arizona onto Fourth. As Kokozyon waited, the left-rear bumper of her Mercedes was struck at low speed by the right-front bumper of defendant’s Buick. Thereafter, defendant accelerated and continued westbound on Arizona at a high rate of speed.

         Defendant proceeded on Arizona, entered the eastern end of the farmers market, and continued for more than two blocks until his car came to a stop just short of Ocean Avenue. As defendant drove through the farmers market, he struck numerous patrons and vendors, killing 10 and injuring 68 others.

         Some eyewitnesses to the collision with Kokozyon estimated that defendant was driving five to 10 miles an hour, although one said it was 15 to 20 miles an hour. One witness heard defendant’s car accelerate just before the collision, stop for one or two seconds, and then accelerate again. Others heard no acceleration before the impact and observed that defendant’s car had pushed Kokozyon’s Mercedes to the right, at which point defendant veered to the left, went around the Mercedes, and accelerated on Arizona toward the market.

         The easterly entrance to the market, which is about 245 feet from the point of impact with the Mercedes, was marked by temporary wooden barricades in the middle of Arizona. At a speed of 40 to 50 miles per hour, defendant crashed through the barricades and immediately struck and killed a man who had been standing there. Defendant continued driving through the market, sometimes reaching speeds in excess of 60 miles per hour. He veered to the left and to the right sides of Arizona, crashing into the vendors’ booths but never hitting any of the cars that were parked behind the booths. When defendant reached Second Street, he struck a manager’s booth that had been set up in the middle of the intersection, hitting several people who were congregated around the booth. His car came to a stop in the middle of Arizona at a point between Second and Ocean Avenue.

         Both before defendant entered the market and as he drove through it, witnesses described the Buick as having made lurching movements, as if the accelerator were being pressed to the floor, released, and then pressed again. The front windshield of the Buick was cracked by various impacts. Witnesses who saw defendant as he drove described defendant’s hands as being gripped tightly on the 10:00 o’clock and 2:00 o’clock positions of the steering wheel. Defendant looked straight ahead, with a “determined” or “focused” facial expression.

         One of the market patrons who had been at the manager’s booth became caught beneath the front of defendant’s car and was dragged forward. She was still there when the car stopped and was described by one witness as having served as a brake for the car. (The woman survived.) A shopping cart and other debris were also under the car. The dead body of a victim who had been struck between the Third Street Promenade and Second Street was lying on the hood.

         Once defendant stopped, witnesses observed the deflated air bag of the Buick on defendant’s lap. Defendant, who did not appear to be injured, reached for his cane and got out of the car. There was a great deal of commotion, and several people yelled that defendant was a terrorist or a mass murderer. According to one witness, defendant “did not appear angry, he did not appear upset, he did not appear apologetic, he did not appear as though he felt that he had done anything wrong.” Another described the expression on defendant’s face as an “unrepentant, unrueful, arrogant smirk.”

         Defendant stood by calmly as various law enforcement and medical personnel arrived. An officer described defendant as “[v]ery calm,” with “no expression to speak of.” A witness said that, as the police were conducting interviews, defendant said to him, “‘If you saw me coming, why didn’t you get out of the way.’”

         Defendant was transported to the hospital for a blood test. En route, a radio broadcast reported there were “8 K’s,” meaning eight fatalities. Defendant asked if this meant that eight people had been killed. The officer said he did not know. Defendant’s calm demeanor did not change.

         Defendant was 86 years old at the time of the incident. Examination of defendant at the hospital did not reveal any medical condition or alcohol or other substances in defendant’s system that would have impaired his ability to control his vehicle.

         Following the hospital examination, defendant was taken to the Santa Monica police station, where he was interviewed by law enforcement personnel. Near the beginning of the interview, defendant said, “I’m in big trouble with my heart and soul. That you can’t fix.” Defendant told officers that he did not recall colliding with a car before entering the market. He believed he accelerated three or four times as he drove on Arizona but did not know why. Defendant thought “it was the vehicle itself responding” because he “sure as hell didn’t have control over it.” He tried to take his foot off the accelerator and step on the brake. When an officer mentioned that defendant was going from side to side on Arizona, defendant said he thought he “was going through corrective motion.” “Foolishly I was steering the car, thinking I, well, I could miss somebody.”

         In other portions of the interview, defendant said he had “no idea how many people I hit and how many people I hurt. But I’m deeply deeply sorry for any pai[n] that everyone went through. It was my fault.” He also said that at his last driver license renewal, he “lucked out” because he got a high enough score on the written portion that he did not have to take a driving test.

         b. Expert testimony

         The incident was investigated by several governmental agencies, including the California Highway Patrol’s Multidisciplinary Accident Investigation Team (MAIT), which produced a 914-page report. The MAIT officer who headed the investigation, Richard Wong, testified as a prosecution witness, principally with respect to MAIT’s investigation and findings.

         MAIT determined that defendant was traveling about five to 10 miles per hour when his Buick collided with Kokozyon’s Mercedes. Misapplication by a driver of the accelerator rather than the brake pedal, sometimes referred to as “pedal error,” then occurred. As stated in the report, “[p]edal misapplication by Mr. Weller during the initial collision event with the Mercedes provides the best explanation for the Buick’s abrupt acceleration, simultaneously or immediately after the impact with the rear of the Mercedes....” With respect to the timing, Wong explained that defendant’s pedal error initially occurred “at the collision with the Mercedes or very soon afterward, even though [MAIT] would leave a small opening just because one witness saying it’s a possibility that the error occurred just before that.” The continued acceleration through the market was the result of “repeated pedal errors.”

         The MAIT report further stated that after entering the market, defendant continued on Arizona for approximately 800 feet, hitting pedestrians, vendors’ booths, and other objects. His speed reached between 40 and 70 miles per hour in the vicinity of the Third Street Promenade. Defendant did not hit any cars that were parked behind the booths or other hard objects. During this time, defendant drove at first toward the north side and then the south side of Arizona. Because the roadway has a high point or “crown” in the middle, this required “active steering input from the driver.” The acceleration of defendant’s car changed as he drove through the market when he took his foot off and then reapplied it to the accelerator. There was no evidence of braking.

         Officer Wong explained that relevant literature states “limited steering” is not inconsistent with pedal error. “Hypervigilence,” which is a form of panic that occurs in response to a sudden dangerous situation, was also considered by MAIT.

         Inspection of the Buick showed there were no mechanical problems with the accelerator or steering system and that the brakes and brake lights were functional. The air bag of the car deployed about 150 feet west of the Third Street Promenade. The Buick began to slow when defendant’s foot came off the accelerator. This occurred in the area where the air bag deployed and a dip in the roadway existed at the east end of the intersection with Second Street. The car ultimately stopped because of the lack of acceleration and the “drag” of the items beneath it, including a trash can, a shopping cart, and an injured woman.

         c. Earlier incident

         The prosecution also introduced evidence of an incident that occurred about 10:00 a.m. on the day of the farmers market incident. David Eisenman testified that as he was driving on San Vicente Boulevard near Bundy Drive in Brentwood, an elderly man drove his car quickly across lanes in front of Eisenman. Eisenman attempted to pass, but the man’s car, which was “in front and very close” to Eisenman, “braked abruptly and sped up.” Eisenman was able to pass on his second attempt but was stopped a few blocks later by an officer who issued a citation to Eisenman for speeding. Later that day, Eisenman saw news reports of the farmers market incident and recognized the car involved as the one he had encountered earlier. The intersection of San Vicente and Bundy is approximately one and one-half miles from defendant’s home in Santa Monica.

         2. Defense Case

         a. Farmers market incident

         Many witnesses to the incident also testified for the defense. One witness said that defendant was looking straight ahead and appeared to be “in a daze” as he drove through the market. Another testified that defendant looked “confused.” When defendant got out of the car, he said that he “was stepping on the brakes and the car wouldn’t stop.” Defendant was also heard to have said, “‘I was pushing on the brake as hard as I could,’” and, “‘If you think it was terrifying on the street, think how I felt. I couldn’t stop.’”

         b. Expert testimony

         Defendant presented four expert witnesses. California Highway Patrol Sergeant Donald Karol, who is the supervisor of MAIT but was out of the country when the initial investigation took place, reiterated many of the MAIT findings to which Officer Wong referred. Karol further explained MAIT had concluded that defendant’s departure from Arizona and Fourth after colliding with the Mercedes was not a hit-and-run situation. When defendant struck the Mercedes, he may have pressed the accelerator instead of the brake based on an “aiming error” in which he “misdirected his foot.” Another possibility was that defendant’s foot slipped off the brake and onto the accelerator. This possibility was supported by evidence of wear on the area of the brake pedal closest to the accelerator.

         Retired California Highway Patrol Officer Thomas Shelton had been associated with the MAIT for about 20 years and had written the MAIT manual for use in investigations. During his career, Shelton had investigated two instances of pedal error. (Officer Wong and Sergeant Karol had not investigated any pedal error incidents, although Karol testified that he had had “personal experience with pedal error” when he “slipped off and basically had to get back onto the brake pedal.”) In one of Shelton’s investigations, a “little old lady in an older style Cadillac who had gotten involved in an accident, stepped on the wrong pedal and accelerated into and over the top of [another] vehicle.” When Shelton, who was driving close by, arrived at the scene, the woman was “still in the vehicle, still grabbing the steering wheel. She had her foot floored to the ground with the rear wheels on that Cadillac just spinning away.” In the other pedal error incident, a driver who had come to a stop at the end of a freeway off-ramp was rear-ended by another vehicle. The driver then hit the accelerator instead of the brake and proceeded about 500 feet at a high speed until broadsiding another car, causing a fatal injury.

         Sheldon, who agreed that limited steering is not inconsistent with pedal error, noted that the lateral movement of defendant’s Buick was less than 10 feet as it traveled through the market, which requires only slight movement of the steering wheel. Sheldon was of the opinion that the collision with the Mercedes “was the onset of the loss of control of the [Buick]. And from that point to the point that the [Buick] came to rest in the farmers market, it was as a result of an unintended acceleration coupled with the panic of the driver who is operating the vehicle.” After the collision with the Mercedes, defendant was trying to stop his car but because of his panic continued to step on the accelerator instead of the brake.

         Dr. Anthony Stein of Safety Research Associates, Inc., a psychologist, testified regarding human factors and transportation. He was of the opinion that a “normal experienced driver” who failed to detect pedal error resulting in unintended acceleration would panic, repeatedly hitting the accelerator rather than the brake pedal in a misguided attempt to stop. “If we had a video camera of the person, they’d be gripping the wheel really tight. You’ll develop tunnel vision. You don’t see the things in the periphery if you’re the person experiencing. [¶] If we were looking at them, we would have a straight-ahead stare. Not processing information. The information is, simply, trying to get that brake to work. That’s because the brake has always worked before. Why isn’t it working now.”

         Dr. Richard Schmidt, who holds a Ph.D. in physical education and is an emeritus professor of psychology at UCLA, testified on biological aspects of human performance. In the last 20 years there have been approximately 10,000 cases of “unintended acceleration,” defined as “‘high power acceleration from a stationary position or low initial speed accompanied by the apparent loss of braking effectiveness.’” The acceleration can persist for up to 45 seconds and has occurred throughout the world in all types of cars. During an instance of prolonged pedal error, the driver attempts to effect the habitual response of stepping on the brake but instead steps on the accelerator. The driver becomes unable accurately to assess available options and perceive the consequences of the acceleration, which does not resolve until the car is stopped by some external force. When a driver is in a state of “hypervigilence,” there is a perceptual narrowing. “[A]lmost invariably the witnesses to these events say that the person is sitting, focusing ahead, rigid, stern looking, white knuckles, both hands on the wheel, in a very rigid manikin like way. It’s almost a signature of the thing.”

         Dr. Schmidt continued that based on studies conducted in the 1980’s, unintended acceleration is a “phenomenon [that] occurs more for older drivers than for younger, and this is not a small effect, this is an enormous effect. The group of 60 to 70 had six times the rate of accidents as 20 to 30, six times the rate of accidents, so this is a massive age effect.”

         c. Earlier incident

         With respect to the near collision earlier on the day of the farmers market incident, Elizabeth Howland testified that in 2003 her 86-year-old father drove a reddish 1991 Lincoln and lived about four blocks from the intersection of Bundy and San Vicente. Her father frequently drove on San Vicente and was driving her son in the Lincoln on the morning of July 16. In support of this testimony, photographs of Howland’s father and of the type and color of the car he owned were introduced into evidence. (We have inspected the photographs. Howland’s father is similar in appearance to defendant; the Lincoln is similar in appearance to defendant’s Buick.)

         DISCUSSION

         1. Evidentiary Issues

         a. Exclusion of neuropsychology expert

         Defendant contends that the trial court prejudicially erred in refusing his request to admit the testimony of Dr. Wilfred van Gorp, a psychology Ph.D. who is the director of neuropsychology at Columbia University College of Physicians & Surgeons and has a specialization in the neuropsychology of the aging. We disagree.

         Defendant proffered that van Gorp, who had testified at the preliminary hearing, would similarly testify at trial that a driver’s psychomotor skills, such as the ability to move his feet in response to a brain command, deteriorate with age. Thus, a person in his 80’s would have less ability than a younger person to think flexibly and to respond effectively to having made the mistake of pressing the accelerator of a car rather than its brake. Focusing on the elements of gross negligence with which the jury would be instructed, defendant argued that van Gorp’s testimony was relevant to demonstrate that defendant acted reasonably under the circumstances because he actually believed he was pressing the brake rather than the accelerator and his inability to recognize this error was not foreseeable. Finally, according to defendant, van Gorp’s testimony would be the basis for instruction regarding impaired physical faculties under CALJIC No. 3.37.

In the proffer, reference was also made to a physical examination of defendant conducted by van Gorp which revealed defendant’s “unique individual cognitive limitations.” These limitations were not set forth in the trial court, nor were they explained at the preliminary hearing, where in discussing the physical examination defense counsel stated: “And if [the prosecutor] is concerned about the specific testing on Mr. Weller, we don’t even need to go into that. That testimony is supportive if there’s any inference here that he should have been aware of the possibility that he might have committed pedal error and should have been aware that if he committed pedal error he wouldn’t have been able to stop the car. [¶] I don’t think they’re saying that. And if they’re not saying that, then Mr. Weller’s particular deficits, which are consistent with the age group, aren’t really — we don’t need to get into that unless you have a concern about it.”

The jury was instructed on gross negligence under CALJIC No. 3.36 as follows: “‘Gross negligence’ means conduct which is more than ordinary negligence. Ordinary negligence is the failure to exercise ordinary or reasonable care. [¶] ‘Gross negligence’ refers to negligent acts which are aggravated, reckless or flagrant and which are such a departure from the conduct of an ordinarily prudent, careful person under the same circumstances as to be contrary to a proper regard for danger to human life or to constitute indifference to the consequences of those acts. The facts must be such that the consequences of the negligent acts could reasonably have been foreseen and it must appear that the danger to human life was not the result of inattention, mistaken judgment or misadventure but the natural and probable result of an aggravated, reckless or flagrantly negligent act.”

CALJIC No. 3.37 provides: “The amount of knowledge a reasonable person with impaired physical faculties should possess under particular circumstances is the knowledge which a person of ordinary prudence with similarly impaired faculties would have under circumstances similar to those shown by the evidence.”

         Defendant’s request to admit van Gorp’s testimony was denied, the court stating that it was irrelevant. The court further noted that defendant’s legal arguments in support of van Gorp’s testimony and the CALJIC No. 3.37 instruction all related to physical rather than mental status and that no case had been cited “holding that a mental impairment or deterioration may be taken into account in determining the reasonable person’s standard for criminal or gross negligence or even simple negligence in a criminal case.”

         “[The Supreme Court has] previously explained that ‘[g]ross negligence is the exercise of so slight a degree of care as to raise a presumption of conscious indifference to the consequences. [Citation.]... The test is objective: whether a reasonable person in the defendant’s position would have been aware of the risk involved. [Citation.]’ [Citation.]” (People v. Ochoa (1993) 6 Cal.4th 1199, 1204.) “[I]f a reasonable person in defendant’s position would have been aware of the risk involved, then defendant is presumed to have had such an awareness. [Citation.]” (People v. Watson (1981) 30 Cal.3d 290, 296.) “[T]he defendant’s lack of such awareness would not preclude a finding of gross negligence if a reasonable person would have been so aware.” (People v. Ochoa, supra, 6 Cal.4th at p. 1205; cf. People v. Lara (1996) 44 Cal.App.4th 102, 108 [“Where liability may be imposed based on ‘criminal negligence,’ the defendant’s subjective belief or good faith is irrelevant. [Citations.] In such a case, the defendant may be found to have acted with ‘criminal negligence’ without proof that he or she intended to commit the act.”].)

         “In blunt fashion, our Supreme Court long ago defined a reasonable person as a ‘normal person.’ [Citation.] The reasonable person is an abstract individual of ordinary mental and physical capacity who is as prudent and careful as any situation would require him to be. [Citations.] [¶] The common law does not take account of a person’s mental capacity when determining whether he has acted as the reasonable person would have acted.” (People v. Jefferson (2004) 119 Cal.App.4th 508, 519.)

         By seeking instruction under CALJIC No. 3.37, defendant posits that a person with age-related cognitive deterioration suffers from “impaired physical faculties” as mentioned in the instruction. But regardless of whether cognitive ability is considered part of one’s mental or physical state, or is in a category of its own, there has been no suggestion that defendant suffers any impairment that would affect application of the reasonable person standard to this case. In short, all licensed drivers are subject to the same rules of the road.

         We further note that the defense of pedal error and associated hypervigilence was fully explored in the testimony of the five expert witnesses who appeared at trial. And one of those experts, Dr. Schmidt, made the precise point that defendant was seeking to elicit from Dr. van Gorp: that there is a “massive age effect,” causing pedal error to occur much more often with older drivers. Accordingly, any error in excluding van Gorp’s testimony did not prejudice defendant.

         b. Exclusion of lay testimony on pedal error

         At trial, defendant proffered the testimony of a woman who had personally experienced pedal error and hypervigilence. Defendant argued that the testimony would be relevant standing alone and also to counter testimony of Sergeant Karol about his personal experience with pedal error. The prosecutor objected under Evidence Code section 352, noting that the testimony would be cumulative to the experts’ descriptions of pedal error. The prosecutor added she was “not disputing that the phenomena of pedal error exists.”

         The prosecutor’s objection was sustained, the court noting that if defendant’s evidence were allowed, the prosecutor could present additional witnesses to describe their personal experiences in emergency situations. The court concluded: “I don’t see where all the anecdotal testimony by witnesses who have encountered different circumstances helps the jury in understanding or deciding the case specific facts that are before them.”

         We find no fault with the trial court’s ruling. “Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. [Citation.] Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion ‘must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]’ [Citation.]” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124–1125.)

         Given the abundance of evidence received on the subject of pedal error, the prosecution’s failure to challenge the existence of the phenomenon, the anecdotal nature of the testimony defendant sought to present, and the potential that this testimony would provide a basis for even more anecdotal evidence, we cannot say that the trial court abused its discretion in rejecting defendant’s proffer, nor did the ruling deprive defendant of the right to present a defense. (See People v. Fudge (1994) 7 Cal.4th 1075, 1102–1103.)

         c. Evidence of earlier incident

         In pretrial proceedings, the prosecutor sought to introduce evidence under Evidence Code section 1101, subdivision (b), of four incidents in which defendant was driving the same car as was involved in the July 2003 farmers market incident: In 1993 defendant backed over a retaining wall; in 1998 he hit a parked car; a few weeks before the farmers market incident he was involved in a minor collision; and on the morning of the incident he drove erratically on San Vicente Boulevard, as described in the testimony of David Eisenman, summarized above. Defendant argued that the other incidents were so dissimilar to what occurred at the farmers market that they were irrelevant. The trial court ruled that only the Eisenman incident would be admitted, stating it was relevant “for explaining [defendant’s] conduct, his state of mind, his attentiveness, his driving at the time that he entered the farmers market.”

         Defendant contends that the trial court erred in admitting evidence of this incident and in later excluding certain rebuttal evidence on the issue. We disagree.

         i. Introduction of evidence

         Evidence Code section 1101, subdivision (b), permits “evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident...) other than his or her disposition to commit such an act.” With respect to the evidence here, the jury was instructed under a modified version of CALJIC No. 2.50 as follows: “Testimony by David Eisenman has been introduced for the limited purpose of showing that the defendant’s actions on July 16, 2003 were not caused by mistake or accident. [¶] This evidence, if believed, may not be considered by you to prove that the defendant is a person of bad character or that he is more likely to be guilty of the crimes charged. It may be considered by you only for this limited purpose.”

         To prove defendant guilty of vehicular manslaughter with gross negligence, the prosecution was required to demonstrate that the deaths caused by defendant’s driving were “not the result of inattention, mistaken judgment or misadventure but the natural and probable result of an aggravated, reckless or flagrantly negligent act.” (CALJIC No. 3.36.) Evidence that defendant drove his car recklessly on San Vicente Boulevard less than four hours before driving through the farmers market was relevant to prove that defendant’s conduct as he entered the market was not caused by mistake or accident. The introduction of this evidence before the jury, after careful weighing by the trial court, was not error. (See People v. Catlin (2001) 26 Cal.4th 81, 145–146.)

         ii. Exclusion of evidence

         Defense witness Elizabeth Howland testified at trial that on the morning of the farmers market incident her father, who looked like defendant, had been driving his Lincoln, which looked like defendant’s Buick, and that he often drove on the portion San Vicente Boulevard described by Eisenman. In proceedings outside the presence of the jury, defendant proffered that Howland could also testify that she called her father around 3:00 or 4:00 p.m. that afternoon and discussed the farmers market incident. Her father “sounded angry, grumpy, excited” and said “something to the effect of, yeah, I don’t know about these drivers. Just this morning some nut or idiot cut me off on my way home, and I almost got into an accident.” Defendant argued that evidence of Howland’s father’s telephone statement, which would suggest that Eisenman rather than the person in the other car was the erratic driver on San Vicente, was admissible as an excited utterance under Evidence Code section 1240. The court rejected defendant’s argument and denied permission to introduce evidence of Howland’s father’s statement. The ruling was proper.

         Evidence Code section 1240 provides: “Evidence of a statement is not made inadmissible by the hearsay rule if the statement: [¶] (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and [¶] (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception.” “‘The foundation for this exception is that if the declarations are made under the immediate influence of the occurrence to which they relate, they are deemed sufficiently trustworthy to be presented to the jury. [Citation.] [¶] The basis for this circumstantial probability of trustworthiness is “that in the stress of nervous excitement the reflective faculties may be stilled and the utterance may become the unreflecting and sincere expression of one’s actual impressions and belief.”’ [Citation.]” (People v. Poggi (1988) 45 Cal.3d 306, 318.) “‘The crucial element in determining whether a declaration is sufficiently reliable to be admissible under this exception to the hearsay rule is... the mental state of the speaker. The nature of the utterance — how long it was made after the startling incident and whether the speaker blurted it out, for example — may be important, but solely as an indicator of the mental state of the declarant.... [U]ltimately each fact pattern must be considered on its own merits, and the trial court is vested with reasonable discretion in the matter.’ [Citation.]” (People v. Brown (2003) 31 Cal.4th 518, 541, quoting People v. Farmer (1989) 47 Cal.3d 888, 903–904, Farmer overruled on another point in People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6.)

         Defendant correctly notes that periods longer than the several hours between the earlier driving incident to which Howland’s father referred in his statement to Howland that afternoon have not precluded admissibility under Evidence Code section 1240. For example, in People v. Raley (1992) 2 Cal.4th 870, 893–894, the statements were made 18 hours after an attack in which a sexual assault victim suffered traumatic head injury, was bleeding, and may have been unconscious for part of the time. In In re Emilye A. (1992) 9 Cal.App.4th 1695, a minor’s statement about being touched on her private parts by her father was made one or two days after the event in the midst of play with her mother “by a child sufficiently young that her reflective powers would be relatively unsophisticated.” (Id. at p. 1713.)

         Here, in contrast to the above cases, the statement by Howland’s father did not relate to a particularly traumatic event. And rather than being made under the stress of excitement, the statement was made following a period of at least five hours, which included Howland’s father’s opportunity to reflect on the earlier driving incident in the context of the farmers market incident of that afternoon. The trial court did not abuse its discretion in excluding the proffered evidence.

         d. Defendant’s objections to lay opinion evidence

         Before the start of trial, the court and counsel discussed the nature of lay opinion testimony that would be permitted of percipient witnesses. The court ruled: “[A]lthough I will grant the witnesses leeway in describing what they saw... the witnesses cannot attribute intent or purpose. In other words, they can’t say things like he was trying to run us down, he was trying to kill us, he was aiming at pedestrians, he was trying to get away, he was trying to stop, he was trying to steer away from everybody, those kinds of things which attribute purpose or intent. [¶] But certainly the witnesses can describe appearance, what they saw the defendant do, how he was manipulating the car, whether his head was up, whether it was down, and they can use, I think with some reasonable latitude, conclusional terms like he looked dazed, he looked angry, he looked scared, he looked alert. Things of those kind, I think are fair language for [witnesses] to use, but they can’t get inside his mind and attribute some kind of intent or purpose.”

         Defendant contends that the trial court erred when, over objection, it allowed witnesses to testify (1) that defendant “seemed... very much in control of that car”; (2) that as defendant drove through the market he “looked enraged”; (3) that defendant’s demeanor was of someone “in control of his faculties”; (4) that while sitting in his car after it had stopped, defendant “didn’t show any great concern, he was just dazed”; (5) that after getting out of the car defendant “stood around and looked and seemed very annoyed by the whole thing”; and (6) that he “did not appear apologetic, he did not appear as though he felt that he had done anything wrong.”

         “A lay witness may testify to an opinion if it is rationally based on the witness’s perception and if it is helpful to a clear understanding of his testimony. (Evid. Code, § 800.)” (People v. Farnam (2002) 28 Cal.4th 107, 153.) In accordance with this standard, the trial court’s preliminary ruling that witnesses would be allowed reasonable latitude to use conclusory terms to describe defendant’s appearance, as well as its rulings on all but possibly the sixth statement about which defendant complains, were in conformity with the law.

         We further note that the rulings about which defendant complains were only a portion of the rulings made on defendant’s numerous objections during the testimony of the scores of trial witnesses who were present at the scene. Among these rulings, the trial court struck and ordered the jury to disregard, for example, testimony that defendant “didn’t seem that he was appropriately concerned with what had just happened,” that when defendant got out of the car his tone was as if “he was the one who had suffered more than other folks,” and that defendant “seemed very callous.”

         Given the difficulties inherent in restricting a lay witness’s description of a horrifying and traumatic event to objective fact rather than personal interpretation, the trial court constantly endeavored to impose appropriate limitations. In one sequence, testimony that defendant’s car came to a stop “when there were no more people to hit” was stricken on defendant’s objection. After a few more questions by the prosecutor, the witness testified that when defendant got out of the car “he was 100 percent totally without remorse.” This testimony was stricken on defendant’s objection, and the court admonished the witness: “Again, if you can describe what you saw, what he appeared like, what he may have said, you know, all of those kinds of things that you saw with your eyes, as opposed to any conclusions that you formed in your mind after seeing these things.”

         Under the difficult circumstances in which testimony was given in this case, and in view of defendant’s own statements going to his state of mind such as that pedestrians should have gotten out of the way, defendant’s contention of prejudicial error in permitting lay opinion evidence must be rejected.

         e. Character evidence

         In proceedings regarding admissibility of evidence, the trial court ruled that if defendant called character witnesses to testify that defendant would not knowingly endanger other people, on rebuttal the prosecutor would be permitted to ask those witnesses whether they had heard of the 1993, 1998, and 2003 driving incidents that had previously been excluded under Evidence Code section 1101, subdivision (b). The court explained: “[T]he fact that [character witnesses] are coming into court and affirmatively saying, well, [defendant] wouldn’t take actions that would create a danger to others, certainly goes to the issue of whether he was driving safely, or whether he was capable of driving safely on July 16th, 2003, and the prosecution is entitled to test those opinions by proposing facts that could influence the opinion, or could suggest that the opinion is not validly stated.” In the face of the trial court’s ruling, defendant elected not to present any character evidence.

         Defendant contends the trial court’s ruling was in error because the driving incidents were not directly related to his character trait of not knowingly endangering others. Defendant’s interpretation of the rule regarding character evidence is too narrow.

         “When a defense witness gives character testimony, the prosecutor may inquire of the witness whether he or she has heard of acts or conduct by the defendant inconsistent with that testimony” to rebut the defendant’s character evidence. (People v. Barnett (1998) 17 Cal.4th 1044, 1170; Evid. Code, § 1102, subd. (b).) Here, the ultimate purpose of defendant’s character evidence was to show that he would not knowingly drive in a manner that put other people in danger. Accordingly, it would be proper for the prosecutor to question character witnesses about whether they had heard of incidents of bad driving that might present a danger to others. The trial court did not abuse its discretion in making its ruling. (See People v. Hinton (2006) 37 Cal.4th 839, 902; People v. Ramos (1997) 15 Cal.4th 1133, 1172–1173.)

         f. Injuries suffered by survivors

         The only charges brought against defendant were the 10 counts of involuntary manslaughter of which he was convicted. Defendant contends that the trial court erred in permitting two of the persons who were injured by defendant to testify as to their injuries. We disagree.

         Over relevancy and Evidence Code section 352 objections, a witness who sought to describe the relationship between where he was hit and where he landed testified briefly that both of his legs had been broken. The woman who was dragged under defendant’s car was asked to identify herself in a photograph and to describe the injuries she received. In a bench conference on defendant’s ensuing objection, the prosecutor noted that the woman’s testimony was relevant to show what caused defendant’s car to stop, which was an issue on which the experts had different opinions. Defendant’s objections to the testimony of both witnesses were properly overruled.

         g. Photographs of victims

         Defendant contends that the trial court erred in permitting certain crime scene and autopsy photographs of the victims to be admitted in evidence because he had stipulated to the identities of the victims and the photographs were gruesome in nature. The contention is without merit.

         None of the photographs was put in evidence until the trial court carefully reviewed all photographs in limine and excluded several of them under Evidence Code section 352. We have viewed the photographs about which defendant complains and find no basis upon which to conclude that the trial court abused its discretion in allowing them into evidence. (See People v. Pollock (2004) 32 Cal.4th 1153, 1170.)

         2. Instructional Issues

         a. Standard of care (Instruction No. 8.91.3)

         At trial, the prosecutor proposed 10 special instructions regarding a driver’s duty of care and the consequences of the breach of that duty. Nine of the instructions were refused, the court ruling that various ones were irrelevant, ambiguous, incomplete, misleading, or covered by other pattern instructions. As to the remaining instruction, the court concluded that the relevant concepts were best explained by California Civil Jury Instruction No. 700, which the court proposed to give verbatim, designated as No. 8.91.3. The instruction provides: “A person must use reasonable care in driving a vehicle. Drivers must keep a lookout for pedestrians, obstacles and other vehicles. They must also control the speed and movement of their vehicles. The failure to use reasonable care in driving a vehicle is negligence.”

         Defendant objected to the instruction, arguing that it is not a proper statement of law and did not apply to the case in light of evidence that defendant was unable to control his vehicle. Defendant also requested that the instruction be modified by adding the phrase “‘under the circumstances of this case’ or other language that’s applicable to show that it’s not in all situations that a driver must control the speed and direction of the vehicle, but it’s up to the jury to determine whether under the circumstances of this case a failure to do so amounted to lack of reasonable care.” The prosecutor responded that adequate references to the circumstances of the case had been made in the CALJIC No. 3.36 instruction on gross negligence and in CALJIC No. 4.45, with which the jury was instructed on accident or misfortune. The court overruled defendant’s objection to the No. 8.91.3 instruction and refused his request to modify it, noting that the circumstances of the case were also covered by instructions such as CALJIC No. 8.91 and an approved defense special instruction, which had been designated No. 8.91.1.

In addition to CALJIC No. 3.36 (quoted at fn. 2, ante) and Instruction No. 8.91.3 (quoted above), defendant’s jury was given the following pertinent instructions:

         Defendant focuses on the sentence in Instruction No. 8.91.3 stating that drivers must control the speed and movement of their vehicles. But the sentence does not say that control must exist under all circumstances nor does it preclude the defense that defendant’s lack of control was due to the unforeseen circumstances of his pedal error and resulting hypervigilence. Rather, what is required is reasonable care. Accordingly, defendant’s contention that the trial court prejudicially erred in giving the instruction must be rejected.

         b. Mistake of fact

         On the second day of jury deliberations, defendant requested that the jury be instructed on mistake of fact under CALJIC No. 4.35. In support of this request, defendant noted that involuntary manslaughter is a general intent crime and thus involves “criminal intent,” as mentioned in the instruction. The prosecutor objected, explaining that she would be deprived of an opportunity to argue the instruction to the jury and further asserting that the instruction was irrelevant because involuntary manslaughter does not involve intent. The trial court refused to give the instruction, stating that it was “submitted after the instructions have been given and the jury has begun its deliberations. I don’t know that I would have given this instruction if it had been requested timely, but I am not prepared to give it now. I think it does unduly highlight the area for the jury. And in all events, even under the defense interpretation of the law, it’s cumulative.... I mean I don’t see any practical distinction between a mistake of fact of pushing on the wrong pedal or the accident instructions that have already been given, as well as just finding no negligence.”

CALJIC No. 4.35 provides: “An act committed or an omission made in ignorance or by reason of a mistake of fact which disproves any criminal intent is not a crime. [¶] Thus a person is not guilty of a crime if [he] [she] commits an act or omits to act under an actual [and reasonable] belief in the existence of certain facts and circumstances which, if true, would make the act or omission lawful.”

         Defendant contends that the trial court had a sua sponte duty to give the mistake of fact instruction because there was substantial evidence to support it and he was relying on the defense. (See People v. Breverman (1998) 19 Cal.4th 142, 157.) According to defendant, the instruction would have “insur[ed] that the jury understood that if [he] pressed on the accelerator honestly thinking it was the brake, even if his belief were unreasonable, he could not be guilty of the charged offenses.”

         We conclude that even if the “intent” referenced in CALJIC No. 4.35 is deemed an element of the gross negligence with which defendant was charged, defendant was not prejudiced by the absence of the instruction. (See People v. Russell (2006) 144 Cal.App.4th 1415, 1431–1432.) Based on the evidence presented and defense counsel’s closing argument, the jury was fully aware of the defense that defendant had not intentionally pressed the accelerator but did so by mistake, thinking it was the brake. In accordance with that theory, the jury was instructed under CALJIC No. 3.36 that “inattention, mistaken judgment or misadventure” was not gross negligence (see fn. 2, ante) and under CALJIC No. 4.45 that no crime is committed when a person acts through “misfortune or by accident” under circumstances that do not show negligence (see fn. 4, ante). In addition, during deliberations the jury asked for a “clearer explanation” of CALJIC No. 3.36. In its response, the court instructed on gross negligence using CALCRIM No. 592, which explains (in language slightly different from CALJIC No. 3.36) that “‘[g]ross negligence’ involves more than ordinary carelessness, inattention, or mistake in judgment.” Accordingly, defendant’s contention of prejudicial error in failing to give an additional instruction on mistake of fact must fail.

The jury was not instructed on concurrence of act and intent under CALJIC Nos. 3.30 or 3.31 but rather was instructed under CALJIC No. 3.35 on concurrence of act and criminal negligence. CALJIC No. 3.35 provides: “In the charged crime of Vehicular Manslaughter with Gross Negligence, there must exist a union or joint operation of act or conduct and gross negligence. In the lesser crime of Vehicular Manslaughter with Ordinary Negligence, there must exist a union or joint operation of act or conduct and ordinary negligence.”

         3. Juror Misconduct

         As part of defendant’s motion for a new trial, he claimed instances of misconduct with respect to one juror speaking to his minister during deliberations, another concealing a bias, and two others improperly conducting an experiment. In support of the motion, defendant offered a news reporter’s story about the juror who spoke to his minister, a declaration of defense counsel about a juror’s statement during a press conference that purportedly showed concealed bias, and a declaration of an investigator about the alleged experiment. Defendant also subpoenaed jurors to the hearing to testify regarding the alleged misconduct.

         The prosecutor opposed defendant’s motion on the merits. She also filed a request that the defense be sanctioned for failing to follow proper procedures in contacting and subpoenaing jurors as witnesses to posttrial hearings. Defendant opposed the request for sanctions, arguing that proper procedures had been followed. The court found that jurors had been “harassed by the defense investigator” and quashed the subpoenas that had been served on the jurors. It further noted that on a motion for a new trial juror testimony is permitted as a matter of trial court discretion and ruled that it was exercising its discretion to exclude such testimony. Finally, the court stated, “In ruling on the defense motion for new trial, I will simply accept the defense declarations. They’re based on hearsay, but even at face value they do not show juror misconduct. They are plainly insufficient for a new trial.”

         On appeal, defendant does not argue that the court erred in refusing to hear jurors’ testimony. But he contends that the trial court erred in concluding that, taking his declarations at face value, a new trial was not warranted. We disagree.

         In the “blog” of a television news reporter who covered the trial, the reporter set forth “excerpts from what jurors told [her]” following the verdicts. Included was the statement of one of two jurors the reporter described as being holdouts following eight days of deliberation. The blog stated that the next day (when court was in recess and no deliberations were conducted) the two jurors “spent the time ‘struggling with their decision.’ One juror needed help of a spiritual sort. He went to his minister for guidance.” “It is misconduct for a juror during the course of trial to discuss the case with a nonjuror. [Citation.]” (People v. Danks (2004) 32 Cal.4th 269, 304.) But the news reporter’s blog, which was the only evidence presented on the issue, did not indicate that the juror had “discuss[ed] the case” with his minister. Accordingly, misconduct was not shown.

         While speaking with reporters after the verdict, defense counsel heard one juror say, “‘Geez, I mean, there were 10 bodies deceased.’” Defendant argued in his motion for a new trial that this statement demonstrated the juror had been biased against him and this bias was concealed during voir dire. We agree with the trial court that the statement was “not concealment. It’s stating the obvious.”

         The defense investigator was told by jurors that during deliberations two jurors paced off a distance in the courthouse hallway that they determined to be 240 feet, which was the approximate distance defendant traveled between the intersection where he collided with the Mercedes and the entrance to the farmers market. Defendant argued that this conduct violated the prohibition of jurors investigating the case outside the courtroom. But the relevant rule, to which the trial court referred in rejecting defendant’s argument, “is that the jurors may engage in experiments which amount to no more than a careful examination of the evidence which was presented in court. [Citation.]” (People v. Cooper (1979) 95 Cal.App.3d 844, 853–854.) That is what the jurors did here.

         DISPOSITION

         The judgment is affirmed.

          We concur: ROTHSCHILD, J., WEISBERG, J.

Retired Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

CALJIC No. 8.91: “Ordinary negligence is the doing of something which a reasonably prudent person would not do, or the failure to do something which a reasonably prudent person would do, under similar circumstances. [¶] It is the failure to use ordinary or reasonable care. [¶] Ordinary or reasonable care is that care which persons of ordinary prudence would use in order to avoid injury to themselves or others under similar circumstances.”

Instruction No. 8.91.1: “Negligence is judged from the point of view of a reasonable person in the position of the defendant. To be ‘in the position of the defendant’ means, among other things, to be aware of the facts that the defendant knew at the time of and under the circumstances of the alleged crimes.”

Instruction No. 8.91.2: “In determining if the defendant acted with negligence, the test is whether a reasonable person in the defendant’s position would have been aware of the risks involved. The defendant’s lack of such awareness does not preclude a finding of negligence if a reasonable person would have been so aware.”

CALJIC No. 4.45: “When a person commits an act or makes an omission through misfortune or by accident under circumstances that show neither gross negligence nor ordinary negligence, he does not thereby commit a crime.”