1

Filed 10/27/21 P. v. Payne CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Calaveras)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

DEAN ALLEN PAYNE,

Defendant and Appellant.

C086844

(Super. Ct. No. 16F6862)

Defendant was operating his boat on Lake Tulloch when he ran over the victims

Rachael P. (Rachael) and Robin T. (Robin), who were riding on an innertube being towed 

by Dustin T.’s boat. It is undisputed that defendant was intoxicated at the time. Both 

victims sustained great bodily injury causing them to become comatose due to brain 

injury. A jury found defendant guilty of unlawfully operating a vessel while under the 

influence, causing bodily injury. Additionally, the jury found true, as to each victim, an 

allegation that defendant personally inflicted great bodily injury and a separate allegation 
2

that he personally inflicted great bodily injury causing the victims to become comatose 

due to brain injury.

On appeal, defendant asserts that (1) several statements he made to law 

enforcement were made in violation of his Miranda rights1 and that his statements were 

involuntary, (2) the trial court prejudicially erred in denying his request for certain 

pinpoint jury instructions relevant to his defense, (3) he did not “personally inflict[]” the 

injuries on the victims because Dustin T.’s operation of his boat was an independent 

intervening cause of the injuries, and (4) the trial court erred in imposing two 

enhancements for personally inflicting great bodily injury causing the victim to become 

comatose due to brain injury because there was only one offense alleged in the 

information. 

We affirm the judgment but order an amendment to the abstract of judgment to 

reflect the trial court’s oral imposition of the court operations assessment and criminal 

conviction assessment fee.

FACTUAL AND PROCEDURAL BACKGROUND

The Charges and Allegations

Defendant was charged by information with unlawfully operating a vessel while 

under the influence causing bodily injury to Rachael and Robin. (Harb. & Nav. Code, 

§ 655, subd. (f); count 1.) The information further alleged four special allegations. In the 

first and third special allegations, the information alleged that defendant personally 

inflicted great bodily injury on each of the two victims, causing each of them to become 

comatose due to brain injury within the meaning of Penal Code section 12022.7, 

subdivision (b).2 In the second and fourth special allegations, the information alleged 

1

 Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] (Miranda).

2

 Further undesignated statutory references are to the Penal Code in effect at the time of 

the charged offenses.
3

that defendant personally inflicted great bodily injury on each of the two victims within 

the meaning of section 12022.7, subdivision (a). 

Prosecution Evidence 

On July 24, 2016, Dustin T. (Dustin) was on his boat on Lake Tulloch with his 

wife Kim G. (Kim), Rachael, her husband Brian P. (Brian), Robin, her boyfriend Jeff S. 

(Jeff), and three children. They were boating, swimming, and innertubing around the 

lake. Dustin testified that Kim was the lookout on the boat, and that she had a flag with 

her at all times. Asked if anyone asked her to serve as lookout for other boats, Kim 

testified that she was on the boat with Dustin frequently, and “he doesn’t have to ask me I 

do that as a matter of course.” 

Towards the end of their day on the lake, Dustin was driving his boat and towing 

Rachael and Robin on the innertube. Dustin noticed a very large boat “coming right at” 

them from the other side of the lake. The larger boat was going very fast, what Dustin 

described as “violent fast” and “[e]xtremely fast.” He estimated that the boat may have 

been going 60 miles per hour or more, and testified that “sixty seventy miles on the water 

is extremely fast.” Brian saw the much larger boat approximately 60 or 70 feet away, 

speeding directly towards them, just to the right of Dustin’s boat.3Jeff testified that the 

3 Regarding the approaching boat, the Brian was asked the following questions and gave 

the following answers:

“Q. Was it directly in front of your boat at that time? 

“A. It appeared to be just off to the right of our boat. 

“Q. And at that point in time [Dustin] was going straight?

“A. Correct.

“Q. And then he turned to the left?

“A. That’s correct.” 
4

boat “was speeding and going way faster th[a]n you should be going.” Another witness 

who was not on Dustin’s boat testified that the boat was “going very fast.” Yet another 

witness testified that she saw the larger boat on the lake prior to the incident, that the boat 

seemed too big for Lake Tulloch, and that it appeared to be going too fast for the size of 

the lake. 

The driver of the larger boat was not looking at Dustin’s boat. Dustin stood up, 

pulled back on the throttle, and yelled and waved his hands trying to get the approaching 

boater’s attention. Kim screamed, waved her hands, and tried to wave the flag. 

As the boats approached each other, Dustin “made one move and it was the only 

move [he] could make.” He turned to the left, avoiding a head-on collision. He testified 

that if he had not done so, the larger boat would have “split us in half.” Dustin 

acknowledged the general rule that boats approaching each other are to turn to the right, 

but further testified: “the only move I could make that day to save seven people, only 

move I could make there is no doubt in my mind was to turn my boat left. If I had 

continued my course of action or even gone right I thought he was going to hit us. The 

only thing I could do is save those lives to save our boat is to move left. It was the only

option.” 

The larger boat passed to the right of Dustin’s boat, within approximately 10 feet

according to Brian and within three to four feet according to Dustin. Dustin and Kim saw 

the driver of the boat and identified defendant as the driver. Dustin said the driver 

“wasn’t even looking” when he passed by. 

Defendant never slowed down and never changed course. After passing Dustin’s 

boat, defendant drove his boat “right over the top of” Rachael and Robin on the 

innertube, running “right through the center of them.” Defendant did not slow down or 

turn before hitting the women and he did not stop afterward. 
5

James O’Bird was a passenger on defendant’s boat at the time. He described 

defendant’s boat as the fastest boat he had ever been on.

4

 O’Bird denied driving and said 

defendant drove the boat. O’Bird had been drinking and smoking marijuana, which was 

in violation of his parole or probation. At one point, O’Bird noticed that defendant was 

driving the boat at 55 miles per hour. He then saw another boat, and both boats whipped 

to the left. The boats missed each other by approximately four feet. O’Bird testified that 

when those boats both turned, there was just “one split second [he] saw those girls whip 

around right underneath us on that tube. And I looked back and they were floating face 

down. And I was like ‘dude you just smoked two girls man’. And [defendant] said ‘no I 

didn’t’. I was like no seriously I am on parole and I jumped out of the boat.” 5 O’Bird

testified that defendant did not realize that he had run over the victims. 

After defendant drove his boat over the victims, Rachael and Robin, both wearing 

life preservers, floated “lifelessly,” face down in the water. Brian dove in and swam to 

Rachael. Jeff dove in and swam to Robin. Brian flipped Rachael over and realized that 

she was not breathing and that her lips were blue. Brian managed to get Rachael onto the 

back of Dustin’s boat, and he began to perform CPR. Robin was also pulled back onto 

the back of Dustin’s boat, and Jeff started performing CPR. 

Tim Saito, a firefighter and certified EMT, was off-duty on his boat. At 

approximately 4:45 p.m., he heard a loud pop, looked in the direction of the noise and 

saw a boat towing an innertube that looked as though it had been popped. Saito drove his 

boat towards the scene. As he approached, he saw two women on the boat’s swim deck 

4

 O’Bird further described defendant’s boat as “big,” called it a cigar boat and stated: 

“[i]t looked like that Miami Vice boat.” Other witnesses also referred to it as a cigar 

boat. Another referred to it as a cigarette boat and stated it was a “boat made for speed.” 

5

 Witnesses saw O’Bird jump out of the larger boat and get picked up by another boat. 

That boat took O’Bird to shore. 
6

with two men, and one of the men was performing CPR on one of the women. Saito 

jumped off his boat and boarded the other boat to render aid. At different times, Saito 

checked both Rachael and Robin for a pulse, and, in each case, he did not feel one. 

People continued to perform CPR on the women. Saito instructed someone to call 911 

and notify them that they were going to a particular location on the shore. Once they 

reached shore, Saito helped transport Rachael off the boat and secure her to a backboard. 

Eventually, a helicopter arrived and Rachael was loaded onto the helicopter. 

Meanwhile, witnesses saw defendant, slumped over on his boat. Officers on shore 

directed defendant to come ashore. One or more younger males, never identified, 

boarded defendant’s boat and drove it to shore. As the boat approached shore, witnesses 

saw defendant open a beer and drink most or all of it. One witness testified that when 

defendant’s boat was being brought in, defendant held the beer up in his hand and was 

“waiving [it] around like in celebration. . . like he thought we were cheering him.”

Deputy Tyson McMahon spoke to O’Bird, who confirmed he had been on

defendant’s vessel, and that defendant had been driving when it struck the victims. 

McMahon ordered defendant off his vessel. Defendant stood up, but then fell 

back onto the seat. Defendant attempted to comply again, but after he stood up, he fell 

onto the bow of the boat. When defendant again attempted to comply, he fell into the 

lake. With McMahon’s assistance, defendant was able to get to shore. McMahon 

observed that defendant’s speech was slurred and he had an unsteady gait, and McMahon 

could smell the odor of alcohol on defendant’s breath. 

Deputy Shawn Cechini also smelled the odor of alcohol on defendant’s breath. He

observed that defendant’s eyes were watery and his speech was slurred. Cechini 

informed defendant that he was going to conduct field sobriety tests to evaluate whether 

defendant had been operating his vessel while impaired. Defendant responded that he 

had not been operating his vessel, and said he did nothing wrong. Cechini advised 

defendant of his Miranda rights and asked if he had been drinking. Defendant responded 
7

that he had six Corona Lights, and that he drank his last beer at 4:05 p.m. Cechini asked 

defendant if he could feel the effects of the alcohol, and defendant replied that he could. 

However, he also said that because he had been drinking, he had not been operating the 

vessel. He said someone named Mark was operating the vessel.6In performing the three 

field sobriety tests administered by Cechini, defendant failed to follow instructions and 

his performance on the tests was indicative of alcohol consumption. Cechini arrested 

defendant. 

At the Calaveras County Sheriff’s Department, defendant took a preliminary 

breathalyzer test. The result was .205 percent. At about 6:55 p.m., blood was drawn 

from defendant at a hospital. Defendant’s blood alcohol content was .238 percent. It was 

estimated that at 4:45 p.m., defendant’s blood alcohol content would have been .278 

percent. 

During his cross-examination, Cechini, who was a marine safety officer, testified 

that, when two vessels approach each other head-on, the primary responsibility is to take 

action to avoid a collision. He also testified that a rule, applicable on Lake Tulloch, 

provided that, when two vessels approach each other head-on, each is supposed to veer 

starboard (right) and pass the other on the port side (left). On redirect, Cechini testified 

that another rule stated that a vessel may take any action necessary to avoid a collision, 

and thus a vessel is not always required to turn right to avoid a collision. 

Tuolumne County Sheriff’s Detective Scott Meyer testified that the speed limit on 

Lake Tulloch was 45 miles per hour. He also testified that, generally, if two vessels are 

approaching each other head-on, the vessels should pass on the right side, “[s]o you pass 

port to port.” Meyer testified that, even with the right of way, a vessel operator must take 

all precautions necessary to avoid a collision, even if another vessel is violating an 

6

 The Attorney General notes that nobody named Mark was ever identified at trial, and 

defendant did not dispute this.
8

applicable law or rule. After being asked about whether there were specific rules 

governing vessels towing people on innertubes, Meyer testified that “[y]ou have to have 

someone over the age of 12 that is watching, keeping an observation and observing, 

keeping a look-out at all times.”7

Calaveras County Sheriff’s Deputy Greg Stark, a sergeant, testified that, while 

generally vessels approaching one another head-on should turn to the right, “there are 

other rules that pertain to doing anything you can to avoid an accident . . . .” “[I]f you see 

something in front of you, you don’t have to turn right you can do what ever you can to 

avoid that accident specifically slowing your . . . vessel down turning left if you had to. 

Or completely stopping to make sure there is no accident.” 

At some point, Cechini recovered from defendant’s vessel part of the innertube the 

victims had been on. It was wrapped around the propeller. Inside defendant’s boat, 

Cechini found beer bottles, both full and empty. 

On July 30, 2016, Cechini went to defendant’s house to rearrest him. As Cechini 

drove defendant to the Sheriff’s Department, defendant said he wanted to talk to Cechini 

“man to man. Dean . . . to Shawn.” Cechini again advised defendant of his Miranda

rights. Defendant then began talking to Cechini. He said that “he had regret, he was 

having remorse and regrets and . . . he started asking a question about if a witness had 

told us about a wheel being jerked out of his hand or to the right.” Defendant 

acknowledged to Cechini that he had been operating his vessel when it hit the victims and 

that he had been impaired at the time. He told Cechini he had “great remorse and he 

wished he could take it back.”

7

 Detective Meyer also testified that he spoke with Dustin at the scene. Meyer did not 

smell alcohol and nothing led him to believe that Dustin was under the influence of 

alcohol or drugs. 
9

A private investigator, Thomas McCarthy, spoke with defendant approximately 

one month after the incident. McCarthy said he was working for a private law firm, 

representing one of the victims. McCarthy testified that defendant told him that he had 

been drinking beer on the day of the incident. Defendant told McCarthy that he had one 

passenger with him at the time, O’Bird. Defendant said he had been “driving at a pretty 

good speed,” and that “he hadn’t noticed anything and when he looked up he noticed 

another vessel coming straight” at his boat. Defendant claimed he turned to the right to 

avoid the other vessel, and cleared it by a few feet. He remarked to O’Bird that it “was a 

close call.” Defendant told the investigator that he never saw the innertube and he never 

saw the victims. Defendant told the investigator: “he went on as normal . . . O’Bird told 

him that he had run over someone but he refused to accept that and went on.” McCarthy 

did not testify that defendant said anything about the steering wheel being jerked out of 

his hand by someone else in the boat.

As a result of the collision, Rachael was in a coma for approximately five or six 

weeks. She suffered neuropathy in her arm and traumatic brain injury. She also suffered 

fractures to her leg and patella. She suffered a deterioration in her vision. Her memory 

suffered. She also could not speak as she used to. A treating neurologist opined that 

Rachel would “never get back to being the same person she was.” She had been a spin 

instructor and very active, and was a mother of young children. Following her recovery 

from a coma and rehabilitation, she required a cane to walk, had trouble with her vision, 

and had “a hard time adjusting to her new circumstances.” “[B]oth cognitively as well as 

from her motor perspective walking and emotional state she was having a hard time 

adjusting . . . .” 

Robin had to have a craniectomy to remove a part of her skull to treat a blood clot 

on her brain that caused a severe amount of pressure. As a result of the blood clot and 

pressure on her brain, Robin suffered “very large strokes.” The treating neurologist 

opined that Robin would never be independent again. She could walk but was unstable. 
10

She did not have much function in her arm on one side. As a result of a stroke she had 

affecting the left side of her brain, Robin developed a degree of aphasia, resulting in 

difficulty speaking and understanding speech. In addition to her brain injuries, Robin 

sustained multiple fractures, including facial and skull fractures, rib fractures, and a leg 

fracture. 

Defense Evidence 

Deputy Joel Burnett testified that he spoke to O’Bird on the day of the collision. 

O’Bird told him that defendant’s boat was traveling at approximately 45 to 50 miles per 

hour. Burnett testified that O’Bird never told him that he looked at the speedometer and 

saw the defendant’s boat was traveling at 55 miles per hour. 

Defendant recalled Cechini. Neither of the people Cechini spoke to who had been 

on Dustin’s boat acknowledged seeing defendant’s boat before the time Dustin started 

waving his arms and screaming. Similarly, Kim told Cechini that the first time she 

became aware of defendant’s boat was when she heard Dustin yelling and screaming. 

Defendant recalled McMahon, who testified that he spoke with Jeff on the day of 

the collision. He described the conversation with Jeff as a “limited conversation.” Jeff 

estimated the speed of defendant’s boat at approximately 35 miles per hour or faster.8

Jeff said he did not see defendant’s boat until “[j]ust prior to” the incident and stated he 

could not identify the boat because it was moving too quickly. 

Defendant recalled Meyer who testified that Dustin described the events 

immediately preceding the incident as follows: “he was tubing between the areas of 

O’Byrnes Ferry Bridge and the old resort, sort there [sic] on Lake Tulloch he was on the 

right side going away from the bridge towards the resort approximately hundred yards off 

8

 Jeff denied telling a deputy that defendant’s boat was going 35 miles per hour. He 

testified that defendant’s boat was “speeding and going way faster th[a]n you should be 

going.” 
11

shore, he said he was going approximately 20 miles an hour he was tubing along he made 

a left turn in order to go to the center of the channel, he then made in order to get the tube 

to go outside the wake as the females were riding on the tube he then made a right turn 

and in a way to force the tube again outside of the wake he said the vessel had slowed 

during the maneuvers he couldn’t remember how fast he was going and that is when he 

observed another vessel approaching.” Dustin told Meyer that it was a matter of seconds 

between the time he first saw defendant’s boat and the impact with the innertube. 

Verdict and Sentencing

The jury found defendant guilty on count 1, unlawfully operating a vessel while 

under the influence causing bodily injury, and found all four special great bodily injury

allegations to be true. Defendant moved for a new trial based on issues related to 

causation and the omission of his requested pinpoint instructions that are addressed in 

part II. of the Discussion, post. The trial court denied defendant’s motion. 

The trial court sentenced defendant to an aggregate term of 12 years, calculated as 

follows: the midterm of two years on count 1 plus five years consecutive for each section 

12022.7, subdivision (b), great bodily injury/comatose enhancement. The court also 

imposed and stayed three-year terms on each section 12022.7, subdivision (a), 

enhancement. 

DISCUSSION

I. Defendant’s Statements to Law Enforcement

A. Additional Background

Defendant gave three statements to law enforcement, the first at the lake after the 

collision, the second later that day at the jail and the third six days later after he was 

rearrested on a bail enhancement warrant. 

1. Cechini’s Interview with Defendant at Calaveras County Jail

In addition to the statements defendant made at the lake and the statements he 

made after he was rearrested that were introduced into evidence at trial, defendant also 
12

made statements to Cechini during the evening on the day of the collision at the 

Calaveras County jail. In the interview, Cechini informed defendant of his Miranda

rights and defendant indicated that he understood each of his rights. The following 

exchange then occurred:

“Q: Okay. Do you wanna talk to me about what happened?

“A: What happened?

“Q: Okay. So this is what we’re lookin’ at right now. I already did the 

investigation for your B- BUI for when I spotted you on your boat driving from the 

bridge to where the resort is, okay?

“A: Mm-hm.

“Q: I have an additional problem here. Okay?

“A: What?

“Q: There’s two women that are laying in . . . serious critical condition from 

injuries of being ran over by a vessel. I also have witnesses that state you were the 

person that were operating at the helm when those two ladies were, uh, struck by your 

vessel. And these are eye witnesses, okay? These are the individuals that said to my 

other workers that you were the person operating the vessel that ran over these two ladies 

that are now currently laying in critical condition.

“A: Today?

“Q: Yes.

“A: All right.

“Q: You wanna talk to me about it, man? No?

“A: No.

“Q: Okay. You wanna just have your attorney?

“A: What am I gonna do?

“Q: Well I - I was just . . . 

“A: This is craziness.
13

“Q: Okay. Well, I’m just telling you. I’ve been with you since the time we 

were at the Tulloch Resort. I just spoke to my partners that are out in the field that have 

talked to the witnesses . . . 

“A: Uh-huh.

“Q: . . . that had witnessed the accident.

“A: I understand.

“Q: And they basically have . . . positively identified you as the person that was 

operating the vessel that struck those two women.

“A: In the water?

“Q: Mm-hm.

“A: I don’t know what to tell you.” (Italics added.) 

Thereafter, defendant made several statements, including that he had been 

drinking beer, although he again denied that he was driving the boat when it hit the 

victims and denied doing anything wrong. 

2. Defendant’s Motion to Suppress

The prosecutor filed a “response to the anticipated defense motion to suppress the 

Defendant’s confession (anticipated Miranda motion).” (Bold and Capitalization 

omitted.) The prosecutor acknowledged that the interview at the jail “may include 

Miranda defective inculpatory statements.” However, the prosecutor asserted that the 

possible violation of defendant’s Miranda rights “does not appear to be intentional, 

tactical, coercive, or in bad-faith,” and that defendant’s statements appeared to be 

voluntary. The prosecutor stated that, if the court determined that defendant’s Miranda

rights were violated, the prosecution would not be permitted to play the recording in its 

case-in-chief, but if defendant testified inconsistently at trial, the prosecution would seek 

to play the recording as impeachment evidence. 

Defendant moved to suppress his statements made at the jail as involuntary and in 

violation of his Miranda rights. Defendant emphasized that, when asked if he wanted to 
14

talk, he said no, he did not want to talk about the incident, yet Cechini continued to 

question him, and defendant ultimately made statements. Defendant asserted that those 

statements, coming after defendant invoked his right not to speak and in the face of 

continued law enforcement interrogation, were made in violation of his Miranda rights

and were not voluntary. 

3. Hearing on Motion to Suppress

Cechini testified at the hearing on the motion to suppress that, when he initially 

contacted defendant at the lake, he told defendant he was going to evaluate him for 

operating a vessel while impaired and he gave defendant the Miranda warnings. 

McMahon heard Cechini advise defendant of his Miranda rights. McMahon testified 

that, if defendant had invoked his Miranda rights, he “absolutely” would have noted as 

much in his report, and further testified that there was no such note in his report. Cechini 

testified that defendant agreed to speak with Cechini. Cechini asked defendant if he had 

been drinking, and defendant responded that he had six Corona Lights, and that he last 

had a beer at approximately 4:05 p.m. He stated that he felt the effects of the alcohol, 

and that is why he had someone named Mark operate his boat. 

Cechini later interviewed defendant at the jail after again advising him of his 

Miranda rights. Cechini asked defendant if he wished to speak with him, and defendant 

shook his head no. Cechini asked defendant if he was saying he did not want to speak 

with Cechini, and defendant confirmed by saying “no.” Cechini again confirmed that 

defendant told him “no.” Cechini testified that he kept talking with defendant, explaining 

he did so because “[h]e was talking so I allowed him to continue to talk to me.” 

Cechini further testified at the hearing that, on July 30, six days after the collision, 

he rearrested defendant on a bail enhancement warrant and placed him in his vehicle for 

transport to the jail. Defendant asked to speak with Cechini like “Dean talking to 

Shawn.” Cechini again advised defendant of his Miranda rights. Defendant told Cechini 

that he had been impaired operating his boat at the time of the incident. He confirmed he 
15

had been the one operating the boat. At some point during the transport, defendant 

indicated that he had retained counsel. 

Cechini testified that defendant told him he had retained counsel at some point 

after Cechini advised defendant of his Miranda rights and after defendant made the 

statements at issue. 

Defendant testified at the hearing and said he told Cechini he had retained counsel 

while they were on defendant’s porch, before the transport. But defendant acknowledged 

Cechini gave him the Miranda admonition in the vehicle. And he testified he talked to 

Cechini because: “I wanted to let [Cechini] know that I was very remorseful for these 

two women and what had happened. And I still am.”

Following all testimony, defense counsel indicated that “[e]verything is disputed,” 

meaning the statements at the lake, the statements at the jail interview, and the statements 

on July 30. Defense counsel asserted that the statements were made in violation of 

Miranda and were involuntary, and that the statements on the day of his rearrest, by 

which time he had retained counsel, were obtained in violation of Massiah v. United 

States (1964) 377 U.S. 201 [12 L.Ed.2d 246] (Massiah).

4. The Trial Court’s Ruling

The trial court found that there was no Miranda violation at the lake. The court 

determined that there was a Miranda violation at the jail, but further determined that the 

statements defendant made at the jail were not coerced “and the officer was merely 

responding primarily to the questions that were being asked by” defendant. The court 

therefore concluded that defendant’s statements were not involuntary. The court ruled 

that the statements could not be used in the prosecution’s case-in-chief, but they could be 

used as impeachment evidence. Finally, the court concluded that there was no Miranda

violation during the drive to jail on July 30, finding that, despite the earlier invocation at

the jail and the fact that defendant had retained counsel, he initiated the discussion. The 

court stated: “The evidence suggests or states that the officer was not aware that he had 
16

retained an attorney but even if he had . . . the defendant still retained the ability to 

voluntarily re-initiate questioning and accordingly the statements made on the 30th . . . 

will be admitted.”

B. Miranda, Voluntariness, and Standards of Review

“Under California law, issues relating to the suppression of statements made 

during a custodial interrogation must be reviewed under federal constitutional standards.” 

(People v. Nelson (2012) 53 Cal.4th 367, 374.)

“The basic rule of Miranda, supra, 384 U.S. 436, and its progeny, is familiar: 

Under the Fifth Amendment to the federal Constitution, as applied to the states through 

the Fourteenth Amendment, ‘[n]o person . . . shall be compelled in any criminal case to 

be a witness against himself . . . .’ [Citation.] ‘In order to combat [the] pressures [of 

custodial interrogation] and to permit a full opportunity to exercise the privilege against 

self-incrimination, the accused must be adequately and effectively apprised of his rights’

to remain silent and to have the assistance of counsel. [Citation.] ‘[I]f the accused 

indicates in any manner that he wishes to remain silent or to consult an attorney, 

interrogation must cease, and any statement obtained from him during interrogation 

thereafter may not be admitted against him at his trial’ [citations], at least during the 

prosecution’s case-in-chief.” (People v. Lessie (2010) 47 Cal.4th 1152, 1162.)

“As long as [a] defendant validly waive[s] the Miranda protection and voluntarily 

confesse[s], the statements are admissible.” (People v. Krebs (2019) 8 Cal.5th 265, 302 

(Krebs).) “A valid waiver need not be express, but ‘may be implied from the defendant’s 

words and actions.’ ” (Ibid., quoting People v. Parker (2017) 2 Cal.5th 1184, 1216.) 

“When a suspect ‘ “having heard and understood a full explanation of his or her Miranda

rights, then makes an uncompelled and uncoerced decision to talk, he or she has thereby 

knowingly, voluntarily, and intelligently waived them.” ’ ” (Ibid.) “It is the 

prosecution’s burden to prove, by a preponderance of the evidence, the accused’s rights 
17

under Miranda were not violated.” (People v. Villasenor (2015) 242 Cal.App.4th 42, 59

(Villasenor).)

“ ‘On appeal, we review independently the trial court’s legal determinations of 

whether a defendant’s . . . Miranda waivers were knowingly, intelligently, and 

voluntarily made [citation], and whether his later actions constituted an invocation of his 

right to silence [citation]. We evaluate the trial court’s factual findings regarding the 

circumstances surrounding the defendant’s statements and waivers, and ‘ “ ‘accept the 

trial court’s resolution of disputed facts and inferences, and its evaluations of credibility, 

if supported by substantial evidence.’ ” ’ ” (Krebs, supra, 8 Cal.5th at p. 299.)

“Independent of whether a defendant’s rights under Miranda were observed, his or 

her statements may not be admitted unless they were voluntary. ‘The court in making a 

voluntariness determination “examines ‘whether a defendant’s will was overborne’ by the 

circumstances surrounding the giving of a confession.” ’ [Citation.] The prosecution 

bears the burden of proof and must show ‘by a preponderance of the evidence the 

statements were, in fact, voluntary.’ ” (Krebs, supra, 8 Cal.5th at p. 299.) 

“ ‘Voluntariness does not turn on any one fact, no matter how apparently 

significant, but rather on the “totality of [the] circumstances.” ’ ” (People v. Sapp (2003) 

31 Cal.4th 240, 267.) “Under federal standards, the prosecution ‘must demonstrate the 

voluntariness of a confession by a preponderance of the evidence. [Citations.] California 

courts use this standard.” (Ibid.)

C. Analysis

1. Statements at the Lake

Defendant asserts that there was not a complete Miranda waiver at the lake. He 

asserts that there is no evidence concerning any admonition given to him to support the 

admissibility of his statements at the lake. He also asserts that the record is silent as to 

how and whether he waived his Miranda rights. Defendant emphasizes that McMahon 

said he heard the admonition, but did not recall defendant agreeing to speak with Cechini, 
18

and said that he did not recall defendant’s responses. Defendant asserts that a Miranda

waiver cannot be presumed from a silent record and in the absence of evidence that he 

actually knew his rights. 

At the hearing on defendant’s motion to suppress, Cechini testified that he gave 

defendant the Miranda warnings at the lake. McMahon testified that he heard Cechini 

advise defendant of his Miranda rights. Cechini specifically testified that he advised 

defendant of his right to remain silent, his right to an attorney, and that if he could not 

afford an attorney, one would be appointed for him. As the Attorney General implicitly 

acknowledges, Cechini did not testify that he advised defendant that anything he said 

could be used against him in court. According to Cechini, defendant agreed to speak 

with him, and went on to make a number of statements. 

Aside from the defective Miranda admonition omitting the admonition that 

anything defendant said could be used against him in court, the record is silent on 

whether he said he understood his rights. Neither Cechini nor McMahon testified at the 

hearing that defendant indicated that he said he understood his rights. Defendant testified 

at the hearing, but nothing in his testimony would establish that he understood his rights. 

Moreover, there are no surrounding circumstances from which we could reasonably infer 

that defendant understood his rights.

Because the warning was defective and the record is silent as to whether defendant 

understood his rights, the trial court erred in determining that the statements defendant 

made at the lake were admissible. (Miranda, supra, 384 U.S. at p. 498 [a knowing and 

intelligent waiver cannot be presumed on a silent record]; accord, People v. Lilliock

(1965) 62 Cal.2d 618, 622; see also People v. Combs (2004) 34 Cal.4th 821, 845.) We 

shall discuss prejudice in part I.E. of the Discussion, post.

2. Statements at the Jail

The Attorney General concedes that Cechini should have stopped questioning 

defendant after defendant responded “no” when asked if he wanted to talk, and that the 
19

continued interview at the jail constituted a Miranda violation. Indeed, as the Attorney 

General notes, the trial court and the prosecutor agreed with defendant that he invoked 

his rights toward the beginning of the interview at the jail. We agree — defendant 

invoked his right to remain silent by answering “no” to the question of whether he 

wanted to talk to Cechini. 

Defendant asserts that the statements he made at the jail, after invoking his 

Miranda rights and indicating that he did not wish to speak with Cechini, were 

involuntary. The statements defendant made at the jail were not admitted during the 

prosecution’s case-in-chief. Further, defendant did not testify, and thus these statements 

were not admitted to impeach defendant’s testimony.

However, the exchange at the jail, and defendant’s invocation of his right to 

remain silent, are relevant to the admissibility and voluntariness of his subsequent, July 

30, statements. “When the police violate a suspect’s Miranda rights, the statement 

immediately resulting from that violation is inadmissible in the prosecution’s case-inchief. [Citation.] That violation may also warrant suppression of subsequent statements 

obtained as a result of the initial violation. [Citation.] However, because a violation of 

Miranda does not necessarily result in a confession that is ‘compelled’ within the 

meaning of the Fifth Amendment [citations], an initial Miranda violation does not 

‘inherently taint[ ]’—and thus warrant suppression of—all subsequent statements 

[citation]. Instead, a defendant seeking to suppress a statement as the tainted fruit of a 

Miranda violation must establish that any subsequent confession was involuntary. 

[Citations.] We adjudge whether a confession was voluntary by looking to the totality of 

the circumstances.” (People v. Orozco (2019) 32 Cal.App.5th 802, 817-818, italics 

added.)

3. Statements After Defendant’s Rearrest

Defendant asserts that the continued questioning by Cechini on July 30, after he 

had invoked his Miranda rights on July 24, violated his Fifth Amendment right to remain 
20

silent. Defendant emphasizes that not only had he invoked his rights on the last occasion 

he was in custody, but he had also retained counsel. Cechini nonetheless simply 

purported to secure a new waiver. This, according to defendant, establishes both a 

violation of defendant’s prior Miranda invocation and a violation of his right to counsel,

relying principally on Massiah, supra, 377 U.S. 201.

Inasmuch as defendant asserts that, at the jail on July 24, 2016, he invoked his 

Miranda right to counsel, we disagree. (See generally People v. DeLeon (1994) 22 

Cal.App.4th 1265, 1269 [“Miranda delineates two separate rights-the right to remain 

silent, and the right to have counsel present during interrogation”].) Defendant invoked 

his right to remain silent, but did not invoke his right to counsel at that time. 

Unlike an invocation of the right to counsel (see Edwards v. Arizona (1981) 451 

U.S. 477, 484-485 [68 L.Ed.2d 378, 386-387] [Edwards]), a suspect’s invocation of the 

right to remain silent does not create “a per se proscription of indefinite duration upon 

any further questioning by [the] police.” (Michigan v. Mosley (1975) 423 U.S. 96, 102-

103 [46 L.Ed.2d. 313, 321] (Mosley).) Instead, if questioning is resumed, the court must 

determine, under the totality of circumstances, whether the suspect’s right to cut off 

questioning had been “ ‘scrupulously honored.’ ” (People v. Warner (1988) 203 

Cal.App.3d 1122, 1129-1130 (Warner), quoting Mosley, at p. 104.)

Here, when Cechini went to rearrest defendant on a bail enhancement warrant, six 

days had passed since defendant invoked his right to remain silent. Cechini arrived at 

defendant’s home, executed the warrant, and placed defendant in his vehicle for transport 

to the jail. Defendant asked to speak with Cechini “like Dean talking to Shawn.” 

Cechini again advised defendant of his Miranda rights. On recross-examination, the 

prosecutor asked Cechini: “After you advised the defendant of the Miranda rights while 

you were driving on the 30th did he say something to the effect he understood all that, he 

just wanted to talk to you?” Cechini replied: “Yes.” Defendant then made a number of 

statements. Under these circumstances, we conclude that, after the July 24 interview at 
21

the jail, defendant’s right to cut off questioning was indeed “ ‘scrupulously honored.’ ”

(Warner, supra, 203 Cal.App.3d at pp. 1129-1130, quoting Mosley, supra, 423 U.S. at 

p. 104.) Indeed, Cechini did not question defendant during the encounter six days later; 

rather, defendant chose to make unsolicited statements to Cechini.

With regard to defendant’s Sixth Amendment right to counsel, as the Attorney 

General acknowledges, this right had attached two days before July 30, when the 

prosecution filed a criminal complaint against defendant. However, “the Sixth 

Amendment right to counsel may be waived by a defendant, so long as relinquishment of 

the right is voluntary, knowing, and intelligent. [Citations.] The defendant may waive 

the right whether or not he is already represented by counsel; the decision to waive need 

not itself be counseled. [Citation.] And when a defendant is read his Miranda rights 

(which include the right to have counsel present during interrogation) and agrees to waive 

those rights, that typically does the trick, even though the Miranda rights purportedly 

have their source in the Fifth Amendment: [¶] ‘As a general matter . . . an accused who 

is admonished with the warnings prescribed by this Court in Miranda . . . has been 

sufficiently apprised of the nature of his Sixth Amendment rights, and of the 

consequences of abandoning those rights, so that his waiver on this basis will be 

considered a knowing and intelligent one.’ ” (Montejo v. Louisiana (2009) 556 U.S. 778, 

786-787 [173 L.Ed.2d 955, 963] (Montejo).)

At the time defendant volunteered his statements in Cechini’s vehicle, he had 

waived his right to counsel. Before the volunteered statements, Cechini had once again 

advised defendant of his Miranda rights and defendant indicated that he understood.

Given the waiver, it does not matter that defendant was represented by counsel at that 

time. (Montejo, supra, 556 U.S. at p. 786.)

Furthermore, because defendant volunteered the statements on July 30, his right to 

remain silent and to counsel were not violated. Even when a defendant has expressed his 

desire to deal with the police only through counsel, statements made after “ ‘ “the 
22

accused himself initiates further communication, exchanges, or conversations with the 

police” ’ ” are admissible. (People v. Mattson (1990) 50 Cal.3d 826, 859, quoting People 

v. Boyer (1989) 48 Cal.3d 247, 273, italics omitted.) “ ‘ “An accused ‘initiates’ ” further 

communication, exchanges, or conversations of the requisite nature “when he speaks 

words or engages in conduct that can be ‘fairly said to represent a desire’ on his part ‘to 

open up a more generalized discussion relating directly or indirectly to the investigation.’ 

” ’ ” (People v. Gamache (2010) 48 Cal.4th 347, 384-385.)

According to Cechini’s hearing testimony, which the trial court credited, 

defendant initiated all substantive conversation in Cechini’s vehicle on July 30, beginning 

that conversation by saying he wanted to speak to Cechini “like Dean talking to Shawn.” 

After Cechini advised defendant of his Miranda rights and defendant indicated he 

understood, defendant then volunteered the subject statements. Once defendant initiated 

such further conversations, “ ‘the police may commence interrogation if [defendant]

validly waives his [Miranda] rights.’ ” (People v. Mickey (1991) 54 Cal.3d 612, 649; 

accord, Edwards, supra, 451 U.S. at p. 486, fn. 9.) 

Moreover, defendant’s statements on July 30, 2016, were voluntary. Defendant 

initiated this discussion. Cechini advised defendant of his rights, defendant indicated he 

understood, and then defendant volunteered statements. It cannot be said that 

“ ‘ “ ‘defendant’s will was overborne’ by the circumstances surrounding the giving of a 

confession.” ’ ” (Krebs, supra, 8 Cal.5th at p. 299.) Indeed, the noncoercive nature of 

the statements is evidenced by the fact that the statements were largely self-serving.

Thus, we conclude the trial court did not err in ruling that the July 30 statements 

were admissible, as they were not admitted in violation of defendant’s rights under 

Miranda or the Sixth Amendment, and they were not involuntary.

D. Harmless Error

The Attorney General asserts that any error in the admission of defendant’s 

statements was harmless beyond a reasonable doubt. 
23

“The erroneous admission of statements obtained in violation of Miranda is 

reviewed for prejudice pursuant to Chapman v. California (1967) 386 U.S. 18 [17 

L.Ed.2d 705, 87 S.Ct. 824] [(Chapman)], under which we inquire whether the error may 

be deemed harmless beyond a reasonable doubt.” (Villasenor, supra, 242 Cal.App.4th at 

pp. 68-69.) The erroneous admission of statements in violation of a defendant’s Sixth 

Amendment rights is likewise subject to a harmless error analysis under Chapman. 

(Delaware v. Van Arsdall (1986) 475 U.S. 673, 681 [89 L.Ed.2d 674, 684-685].) To 

determine whether the People have satisfied their burden of proving the error was 

harmless beyond a reasonable doubt, “we examine the entire record and must reverse if 

there is a ‘ “ ‘reasonable possibility’ ” ’ that the error contributed to the verdict.” (People 

v. Reese (2017) 2 Cal.5th 660, 671 (Reese), citing People v. Aranda (2012) 55 Cal.4th 

342, 367 (Aranda).)

As we have noted, defendant’s statements at the lake should have been suppressed. 

At trial, Cechini testified that, at the lake, he asked defendant if he had been drinking, and 

defendant responded that he had six Corona Lights, and that he drank his last beer at 4:05

p.m. Cechini asked defendant if he could feel the effects of the alcohol, and defendant 

replied that he could. Defendant denied that he had been operating the boat and instead 

claimed some person named Mark had done so when the victims were struck.

Ultimately, other trial evidence established that defendant had been drinking, that 

he was intoxicated and had an excessively high blood alcohol level, that he was operating 

his boat when it struck the victims, and that it was not some third person named Mark 

who had been operating the boat. And these points were not contested by the defense. 

Regarding defendant’s lack of sobriety, when Deputy McMahon ordered 

defendant off his boat, defendant stood up, but then fell back onto the seat. Defendant 

stood up again and then fell onto the bow of the boat. When defendant stood up again, he 

fell into the lake. After fishing defendant out of the water, McMahon observed that 

defendant’s speech was slurred and he had an unsteady gait, and McMahon could smell 
24

the odor of alcohol on defendant’s breath. Cechini also smelled the odor of alcohol on 

defendant’s breath. He also noticed that defendant’s eyes were watery and his speech 

was slurred. Defendant failed the three field sobriety tests Cechini administered. 

Defendant’s performance on the field sobriety tests administered by Cechini was 

indicative of alcohol consumption. Additionally, defendant’s breath alcohol test and 

blood alcohol test established defendant’s level of intoxication, although defense 

counsel’s cross-examination of the criminalist who testified about these tests suggested 

that the precise level of defendant’s intoxication at the time of the incident could be 

difficult to fix because defendant drank at least one beer after the incident.

As for the identity of the driver, independent of defendant’s statement to Cechini, 

multiple eyewitnesses identified defendant as the individual operating the boat when it 

struck the victims. And defendant admitted he was driving the boat — “at a pretty good 

speed” — when he spoke to the McCarthy, the private investigator. He also admitted to 

McCarthy that he never saw the innertube, never saw the victims, continued on as normal 

after narrowly missing the other boat, and refused to accept O’Bird’s statement that he 

had run over someone. 

Moreover, even if we deemed it error to admit the statements defendant made to 

Cechini on July 30 while they were driving to the jail after Cechini rearrested him, we 

would conclude any such error was harmless beyond a reasonable doubt. In those 

statements, defendant admitted that he had been operating his boat when he struck the 

victims, and that he had been intoxicated at the time, matters he did not contest at trial 

and which were overwhelmingly established by other evidence. With regard to his 

additional statements that someone jerked the steering wheel and that he had “great 

remorse and he wished he could take it back,” there is no reasonable possibility that the 

admission of these statements, which were self-serving and portrayed defendant in a 

more sympathetic light, contributed to the verdict. (Reese, supra, 2 Cal.5th at p. 671;

Aranda, supra, 55 Cal.4th at p. 367; see Chapman, supra, 386 U.S. at pp. 23-24.) As for 
25

the falsity of the statement about the steering wheel being jerked, defendant’s credibility 

was already tarnished given that it was at odds with the other evidence, including the 

statement he made to the private investigator.

Thus, the admission of the statements to law enforcement was harmless beyond a 

reasonable doubt because there is no “ ‘ “ ‘reasonable possibility’ ” ’ that the error 

contributed to the verdict.” (Reese, supra, 2 Cal.5th at p. 671; Aranda, supra, 55 Cal.4th 

at p. 367; see Chapman, supra, 386 U.S. at pp. 23-24.)9

II. Refusal to Give Defendant’s Proposed Instructions

10

A. Additional Background

1. Defendant’s Requested Instructions and the Trial Court’s Ruling

Defendant submitted several proposed instructions, including U.S. Inland 

Navigations Rule 14 (Rule 14) regarding the head-on situation, Harbors and Navigation 

Code section 658, CACI No. 411, CALCRIM No. 3404, and an additional proximate 

cause instruction quoting language from People v. Cervantes (2001) 26 Cal.4th 860 

(Cervantes). The prosecution filed a written objection to defendant’s requests. Among 

other things, the prosecutor asserted that, in the absence of other instruction on other 

rules, including Rule 2(b), Rule 14 would lack sufficient context. He argued CALCRIM 

No. 2100 adequately instructed the jurors on causation.

9

 Defendant appears to concede he was not prejudiced. In his reply brief, defendant 

states: “Appellant believes that even if error is established on the admissibility of two of 

the statements, Appellant does not believe the admission of those statements created a 

‘miscarriage of justice’ and would therefore be harmless error. Because these statements 

do not relate to how the accident happened, Appellant makes no further reply concerning 

the admissibility of his statements.” 

10 Defendant characterizes this as “by far” his strongest argument, particularly in “a case 

where the defendant conceded intoxication in driving of a boat . . . .” Defendant states 

that the only genuine issue before the jury “was whether the defendant was responsible 

for the collision between his boat and the two tubers being drawn behind [Dustin’s] 

boat.” (Capitalization omitted.) 
26

The trial court found defendant’s proposed instructions inapplicable. The court 

stated: “There is no charge here with regard to Harbors and Navigation or any of these 

rules. It would be inappropriate to instruct them on this. [¶] The evidence that the 

defense is propounding to argue the point that the defendant’s actions in this matter 

weren’t a substantial factor. That the actions of the ski boat [Dustin’s boat] were the 

substantial factor. [¶] So to give you a tentative on this I think it’s not appropriate. It’s 

going to get far too confusing to even if the Court were to consider it to give these 

instructions because they do not apply to the law and issue in this case.” 

Defense counsel argued that the instructions were necessary to consider “whether 

the conduct of [Dustin’s] boat is foreseeable or not. If it’s in clear violation of 

regulations, but it contained on the rules that they have to operate their boat by, the jury 

should be told that the people in the jet ski boat were violating a number of rules . . . .” 

The court emphasized that defense counsel could argue to the jury that Dustin’s boat was 

in violation of rules based on the testimony. 

Discussing CACI No. 411, the court stated: “the way the Court analyzes 411, is 

that jury instructions are designed to assist the jury in their decision making process. And 

I don’t see where that assists [the jury] in any way. Because you have every person has 

the right to expect that the other person will take reasonable care. . . . So your position is 

that these people should have been operating more appropriately and seeing him coming. 

[The prosecutor] is going to be saying people shouldn’t be driving drunk. . . . [T]here is 

nothing there that enlightens --.” The court continued: “I don’t see 411 as contributing 

anything that is going to assist this court. You have the proximate cause and you are 

right too, you are entitled to proximate cause bench notes cases supporting that. It’s in 

CALCRIM No. 2100. That is what, there may be more than one cause of injury and that 

cause of bodily injury to another person only if it is a substantial factor in causing the 

injury. A substantial factor is more th[a]n a trivial or remote factor. However it need not 
27

be the only factor that causes the injury. And that is the proximate cause instruction 

here.” 

2. CALCRIM No. 2100

Both before and after the presentation of evidence, the trial court instructed the 

jury with CALCRIM No. 2100, in pertinent part, as follows:

“The Defendant is charged with causing injury to another person while operating a 

vessel under the influence of an alcoholic beverage in violation of Harbors and 

Navigations Code 655(f). [¶] To prove that the Defendant is guilty of this crime, the 

People must prove that: [¶] 1. The Defendant operated a vessel; [¶] 2. When he 

operated a vessel, the Defendant was under the influence of an alcoholic beverage; [¶] 3. 

While operating a vessel under the influence, the Defendant also committed an illegal act 

or neglected to perform a legal duty; [¶] AND [¶] 4. The Defendant’s illegal act or 

failure to perform a legal duty caused bodily injury to another person. [¶] . . . [¶] The 

People allege that the Defendant failed to perform the following legal duties while 

operating the vessel: the duty to exercise ordinary care at all times and to maintain 

proper control of the vessel. [¶] Using ordinary care means using reasonable care to 

prevent reasonably foreseeable harm to someone else. A person fails to exercise ordinary 

care if he or she does something that a reasonably careful person would not do in the 

same situation or fails to do something that a reasonably careful person would do in the 

same situation. [¶] An act causes bodily injury to another person if the injury is the 

direct, natural, and probable consequence of the act and the injury would not have 

happened without the act. A natural and probable consequence is one that a reasonable 

person would know is likely to happen if nothing unusual intervenes. In deciding 

whether a consequence is natural and probable, consider all the circumstances established 

by the evidence. [¶] There may be more than one cause of injury. An act causes bodily 

injury to another person only if it is a substantial factor in causing the injury. A 
28

substantial factor is more than a trivial or remote factor. However, it need not be the only 

factor that causes the injury.” (Italics added.) 

B. Defendant’s Contentions

Defendant asserts that the trial court erred in refusing to give his requested jury 

instructions which were relevant to causation. Defendant asserts that the proposed 

instructions were necessary for the jury to understand the rules applicable to the two 

boats. Defendant asserts that the instructions were necessary for the jury to determine 

whether Dustin’s boat caused the collision and whether its operation was an intervening,

superseding cause of the injuries. We disagree.

C. The Trial Court’s Instructional Duty 

“A trial court has a sua sponte duty to ‘instruct on general principles of law that 

are closely and openly connected to the facts and that are necessary for the jury’s 

understanding of the case . . . .’ ” (People v. Blacksher (2011) 52 Cal.4th 769, 845-846, 

quoting People v. Carter (2003) 30 Cal.4th 1166, 1219.) “Pinpoint instructions ‘ “relate 

particular facts to a legal issue in the case or ‘pinpoint’ the crux of a defendant’s case.” ’

[Citation.] ‘Upon proper request, a defendant has a right to an instruction pinpointing the 

theory of defense . . . if the theory proffered by the defendant is supported by substantial 

evidence’ [citation], the instruction is a correct statement of law [citation], and the 

proposed instruction does not simply highlight specific evidence the defendant wishes the 

jury to consider.” (People v. Jo (2017) 15 Cal.App.5th 1128, 1173-1174 (Jo).) “The trial 

court may properly refuse an instruction highlighting a defense theory if it is ‘duplicative 

or potentially confusing.’ [Citation.] ‘[W]here standard instructions fully and adequately 

advise the jury upon a particular issue, a pinpoint instruction on that point is properly 

refused.’ [Citations.] Put another way, ‘[t]here is no error in a trial court’s failing or 

refusing to instruct on one matter, unless the remaining instructions, considered as a 

whole, fail to cover the material issues raised at trial.’ [Citation.] The failure to give an 

instruction on even an essential issue ‘may be cured if the essential material is covered by 
29

other correct instructions properly given.’ ” (Id. at p. 1174; accord, People v. Moon

(2005) 37 Cal.4th 1, 30 (Moon) [“a trial court may properly refuse an instruction offered 

by the defendant if it incorrectly states the law, is argumentative, duplicative, or 

potentially confusing [citation], or if it is not supported by substantial evidence”].)

D. Analysis

1. Navigation Rules

a. Rule 14

Rule 14 provides, in pertinent part: “Unless otherwise agreed, when two powerdriven vessels are meeting on reciprocal or nearly reciprocal courses so as to involve risk 

of collision each shall alter her course to starboard so that each shall pass on the port side 

of the other.” (33 C.F.R. § 83.14(a) (2019).)

Defendant’s theory of the case rested on the premise that the collision of his boat 

with the victims on the innertube was the result not of his boating under the influence or 

failing to exercise reasonable care, but instead of the failures of Dustin and his passengers 

to adhere to applicable boating rules, which served as an independent superseding cause 

of the incident. It was not disputed at trial that, upon observing defendant’s vessel 

approaching his boat at a high rate of speed, Dustin turned left to avoid a collision.

We conclude that the trial court should have granted defendant’s request to 

instruct the jury with Rule 14. Defendant’s theory was supported by substantial 

evidence, the requested instruction would have been a correct statement of law, and 

instructing the jury with Rule 14 would not have simply highlighted evidence that 

defendant wanted the jury to consider. (Jo, supra, 15 Cal.App.5th at p. 1174.) We do not 

agree with the trial court’s conclusion that, because defendant was not charged with a 

violation of Rule 14, or that violation of Rule 14 was not an element of the offense with 

which he was charged, the instruction was inapplicable. As stated, the instruction was 

relevant to his defense and was supported by substantial evidence. However, as we will 

discuss post, the error was harmless.
30

b. Harbors and Navigation Code Section 658, Subdivision (d)

Harbors and Navigation Code section 658, subdivision (d) provides: “No person 

shall operate or manipulate any vessel, towrope, or other device by which the direction or 

location of water skis, an aquaplane, or a similar device may be affected or controlled so 

as to cause the water skis, aquaplane, or similar device, or any person thereon, to collide 

with, or strike against, any object or person.” For essentially the same reasons as those 

discussed in relation to Rule 14, this subdivision would be relevant to defendant’s theory 

that the incident was caused by Dustin’s violation of boating rules, which purportedly 

endangered the victims. Substantial evidence supported this defense theory. 

Accordingly, we conclude that the trial court should have instructed the jury with 

subdivision (d).11 

c. Harbors and Navigation Code Section 658, Subdivision (a)

Harbors and Navigation Code section 658, subdivision (a), provides, in pertinent 

part: “No person shall operate a vessel on any waters for towing a person or persons on 

water skis, an aquaplane, or a similar device unless there is in the vessel a person at least 

12 years of age, in addition to the operator, in a position to observe the progress of the 

persons being towed.”

11 The parties also mention Harbors and Navigation Code section 658, subdivision (e). 

However, that subdivision addresses the operation of “water skis, an aquaplane, or a 

similar device” rather than the operation of a vessel. Thus, this subdivision would apply 

to a circumstance addressing the way in which the innertube itself was operated, as 

opposed to the vessel towing it. (Ford v. Gouin (1992) 3 Cal.4th 339, 350 [“section 658, 

subdivision (d), imposes a duty on the operator of the vessel not to cause a collision 

between the person towed and ‘any object or person.’ Subdivision (e) of section 658 

imposes a corresponding duty on the water-skier not to ‘endanger the life, limb or 

property of any person.’ ”].) There are no allegations in this case about how the victims 

operated the innertube or even if it was capable of operation by the victims. The relevant 

issues here relate to Dustin’s operation of his vessel.
31

Substantial evidence did not support any theory that the incident was caused in 

any part by the fact that there was no adult in a position to observe the people being 

towed. Kim, Brian, and Jeff were all in a position to observe the people being towed. 

And although the statute calls for nothing more than an adult, other than the operator to 

be in a position to observe, there was evidence that an adult was actually observing. 

Dustin testified that Kim was the lookout, and that she had a yellow or orange flag with 

her at all times. Kim testified that she was on the boat with Dustin frequently, and serves 

as a lookout “as a matter of course.” 

“In determining whether the evidence is sufficient to warrant a jury instruction, the 

trial court does not determine the credibility of the defense evidence, but only whether 

‘there was evidence which, if believed by the jury, was sufficient to raise a reasonable 

doubt . . . .’ ” (People v. Salas (2006) 37 Cal.4th 967, 982-983 (Salas).) Here, there was 

no evidence which, if believed by the jury, would have established that there was no one 

on Dustin’s boat in a position to observe the people being towed. Moreover, there is no 

evidence, or theory advanced, to the effect that the collision was caused by the failure of 

a lookout “in a position to observe the progress of the persons being towed.” (Harb. & 

Nav. Code, § 658, subd. (a).) Defendant’s theory included the failure of a lookout on 

Dustin’s boat alert to other vessels, specifically vessels approaching the bow of Dustin’s 

boat. But the statute does not require that there be a lookout, let alone one that has a duty 

to alert other vessels. Moreover, someone charged with observing the progress of the 

victims on the innertube would be looking in the opposite direction, towards the stern of 

Dustin’s boat. Moreover, there was no evidence that, even if Kim or the other passengers 

did not satisfy the requirement of Harbors and Navigation Code section 658, subdivision 

(a), there was anything any such person could have done to prevent the injuries inflicted 

by defendant.

Substantial evidence did not support the defense theory that the collision occurred 

because of the absence of anyone in a position to observe the people on the innertube, 
32

and thus an instruction based on subdivision (a) of Harbors and Navigation Code section 

658 was properly denied.

2. CACI No. 411

CACI No. 411 provides: “Every person has a right to expect that every other 

person will use reasonable care [and will not violate the law], unless he or she knows, or 

should know, that the other person will not use reasonable care [or will violate the law].”

For the reasons stated in People v. Elder (2017) 11 Cal.App.5th 123 (Elder), on 

which the Attorney General relies, we conclude the trial court properly declined to 

instruct the jury with CACI No. 411. The court in Elder stated: “Contrary to defendant’s 

argument that the instruction was necessary to adequately acquaint the jury with the law 

of causation, CACI No. 411 is not a causation instruction. Titled ‘Reliance on Good 

Conduct of Others,’ it is a pattern jury instruction designed for use in civil negligence 

cases involving a plaintiff suing a defendant for failing to prevent harm caused by a third 

party. The principle it espouses is essentially that a defendant will not be liable for harm 

caused by a third party’s negligent or criminal conduct, unless the third party’s conduct 

was foreseeable: . . . [¶] Defendant’s request to instruct the jury on this principle of civil 

negligence law was particularly inapposite given that another party’s contributory 

negligence is not a defense to criminal liability. [Citation.] The requested instruction 

would have served only to confuse the jury regarding the relevant issues.” (Elder, at 

p. 135, fn. omitted, italics added.) We conclude the same holds true here.

3. CALCRIM No. 3404 – Accident 

As proposed by defendant, CALCRIM No. 3404 would have read: “The 

defendant is not guilty of boating under the influence if he acted [or failed to act] without 

the intent required for that crime, but acted instead accidentally. You may not find the 

defendant guilty of boating [under the influence] unless you are convinced beyond a 

reasonable doubt that he acted with the required intent.” 
33

CALCRIM No. 3404 relates to mens rea. “The accident defense is a claim that the 

defendant acted without forming the mental state necessary to make his actions a crime.”

(People v. Gonzales (1999) 74 Cal.App.4th 382, 390, disapproved on another ground in 

People v. Anderson (2011) 51 Cal.4th 989, 998, fn. 3; accord, People v. Lara (1996) 44 

Cal.App.4th 102, 110.) It arises from section 26 which identifies classes of persons who 

are not legally deemed capable of committing crimes, including “[p]ersons who 

committed the act or made the omission charged through misfortune or by accident, when 

it appears that there was no evil design, intention, or culpable negligence.” (Anderson, at 

p. 996, Italics added.) 

Here, defendant was charged with violation of Harbors and Navigation Code

section 655, subdivision (f), which is not just boating under the influence as set forth in 

defendant’s proposed CALCRIM No. 3404, but rather boating under the influence 

causing injury. To prove defendant’s guilt, the prosecution was required to prove: (1) 

defendant operated a vessel; (2) when he operated the vessel, he was under the influence 

of alcohol; (3) while operating the vessel under the influence of alcohol, defendant also 

committed an illegal act or neglected to perform a legal duty; and (4) defendant’s illegal 

act or failure to perform a legal duty caused bodily injury to another person. (Harb. & 

Nav. Code, § 655, subd. (f); CALCRIM No. 2100, italics added.)

Under the theory advanced by the prosecution, it had to prove that defendant 

neglected to perform a legal duty — “the duty to exercise ordinary care at all times and to 

maintain proper control of the vessel.” Assuming that CALCRIM No. 3404 is relevant to 

this element, we proceed to consider whether substantial evidence supported the 

instruction.12

12 The prosecution had the burden of proving that defendant operated his vessel and that 

he did so under the influence of alcohol. Accident has no bearing on these matters here; 
34

Immediately before the collision, Dustin saw defendant driving his boat very fast, 

what Dustin described as “violent fast” and “[e]xtremely fast,” perhaps 60 miles per hour 

or more. Another witness testified that defendant’s boat was “going very fast,” and 

another testified that the boat was going too fast for the size of the lake. O’Bird, 

defendant’s passenger, testified that defendant was driving his boat at 55 miles per hour. 

Detective Meyer testified that the speed limit on Lake Tulloch was 45 miles per hour. 

Brian saw the much larger boat speeding directly towards Dustin’s boat, and testified that 

the operator was not looking at Dustin’s boat. To avoid a head-on collision, Dustin 

turned to the left; otherwise, defendant’s boat would have “split us in half.” Defendant’s 

boat passed within three to 10 feet of Dustin’s boat. Defendant never slowed down and 

never changed course. After passing Dustin’s boat, defendant, who was intoxicated,

drove his boat “right over the top of” Rachael and Robin, running “right through the 

center of them.” Defendant did not slow down or turn before hitting the women and it 

did not stop afterward. O’Bird said to defendant, “ ‘dude you just smoked two girls 

man,’ ” and defendant’s response was: “ ‘no I didn’t.’ ” O’Bird testified that defendant 

did not realize that he had run over the victims. 

These facts demonstrate that defendant was not operating his vessel in a lawful 

manner and that he acted with culpable negligence, which precludes an accident defense. 

There was no substantial evidence to support a theory that defendant’s conduct was the 

result of accident instead of culpable negligence.

Defendant points to Deputy McMahon’s testimony that when he spoke with Jeff 

on the day of the incident, Jeff estimated the speed of defendant’s boat at approximately 

35 miles per hour or faster. Jeff denied telling a deputy that defendant’s boat was going 

35 miles per hour and testified that the boat was going “way faster” than it should have 

there is no contention that defendant accidentally operated his vessel, or that he 

accidentally operated his vessel while under the influence. 
35

been. Again, speeds in excess of 45 miles per hour would have constituted speeding on 

Lake Tulloch. While we do not consider the credibility of witnesses in determining 

whether substantial evidence supported an instruction on a defense, and “instead leaving 

credibility determinations for the jury” (People v. Elize (1999) 71 Cal.App.4th 605, 615),

even if there was arguably substantial evidence to support the conclusion that defendant 

was not speeding, there was not substantial evidence to refute the evidence that defendant 

otherwise operated his vessel in an unlawful manner and with culpable negligence. 

Specifically, there was no evidence to contradict the evidence demonstrating that 

defendant, who was under the influence, drove his vessel directly at Dustin’s, that he 

never looked at Dustin’s vessel, that he never slowed down or changed his course, that he 

passed Dustin’s vessel within, at most, 10 feet and only because Dustin turned his vessel 

out of the path of defendant’s, that defendant then drove over the two victims on the 

innertube, and that defendant did not stop after driving his boat over them despite being 

told that he had done so. There is not substantial evidence to support defendant’s theory 

of accident on the ground that his actions did not constitute culpable negligence.

Moreover, as the Attorney General asserts, to prove a violation of Harbors and 

Navigation Code section 655, subdivision (f), the prosecution is not required to prove 

intent to cause injury. The prosecution did not have to prove that defendant deliberately

struck the victims or deliberately caused the collision, a requirement for which 

CALCRIM No. 3404 could potentially be relevant. Defendant asserts in his reply brief 

that he “requested [CALCRIM No.] 3404 on ‘accident’ which would have allowed the 

jury to understand that sometimes collisions occur and the person being prosecuted is not 

the cause of the collision, but rather, at the very least, this collision could have been an 

‘accident.’ ” Defendant’s argument confuses mens rea with causation. CALCRIM No. 

3404 is addressed to defendant’s mental state, not what caused the collision or injury.

Because there is no substantial evidence supporting CALCRIM No. 3404 on 

accident, the trial court properly declined to instruct the jury with it.
36

4. Proposed Causation Instruction Based on Cervantes

Defendant asserts the trial court erroneously refused to give his requested pinpoint 

instruction on Dustin’s conduct as an intervening, superseding cause. His proposed 

pinpoint instruction was a quote straight from the opinion in Cervantes, supra, 26 Cal.4th 

at page 871. As proposed by defendant, the instruction would have read: “The principles 

derived from these and related authorities have been summarized as follows. ‘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. “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. [Citation.] ‘[ ] The consequence need not have 

been a strong probability; a possible consequence which might reasonably have been 

contemplated is enough. [ ] The precise consequence need not have been foreseen; it is 

enough that the defendant should have foreseen the possibility of some harm of the kind 

which might result from his act.’ ” ’ [¶] However, a possible consequence is not an 

intervening cause which involves illegal or conduct contrary to applicable rules.”13

13 In Cervantes, the defendant was “a member of a street gang, who perpetrated a 

nonfatal shooting that quickly precipitated a revenge killing by members of an opposing 

street gang.” (Cervantes, supra, 26 Cal.4th at p. 863.) Our Supreme Court reversed the 

defendant’s conviction for second degree murder under the provocative act doctrine, 

finding insufficient evidence of proximate causation. The court reasoned that “the actual 

murderers were not responding to defendant’s provocative act.” Instead, they 

“ ‘intend[ed] to exploit the situation created by [the defendant], but [were] not acting in 

concert with him,’ a circumstance that is ‘normally held to relieve the first actor 
37

The principles in Cervantes, relating to intervening superseding causes, are 

incorporated in CALCRIM No. 2100. Among other things, CALCRIM No. 2100, as 

given by the court, provided: “An act causes bodily injury to another person if the injury 

is the direct, natural, and probable consequence of the act and the injury would not have 

happened without the act. A natural and probable consequence is one that a reasonable 

person would know is likely to happen if nothing unusual intervenes. . . . [¶] There may 

be more than one cause of injury. An act causes bodily injury to another person only if it 

is a substantial factor in causing the injury. A substantial factor is more than a trivial or 

remote factor. However, it need not be the only factor that causes the injury.”

The foregoing language from CALCRIM No. 2100, which defendant does not 

assert is an inaccurate statement of the law, is essentially identical to language in 

CALCRIM No. 240, a standalone instruction on causation.14 It has been held that 

CALCRIM No. 240 “correctly indicates, in essence, that liability would not be cut off for 

an intervening act if the victim’s injury was nevertheless a ‘direct, natural, and probable 

[defendant] of criminal responsibility.’ ” (Id. at pp. 872-874.) The facts in Cervantes are 

obviously nothing like what happened here.

14 CALCRIM No. 240 reads: “An act [or omission] causes (injury/_______ <insert other 

description>) if the (injury/_______ <insert other description>) is the direct, natural, and 

probable consequence of the act [or omission] and the (injury/_______ <insert other 

description>) would not have happened without the act [or omission]. A natural and 

probable consequence is one that a reasonable person would know is likely to happen if 

nothing unusual intervenes. In deciding whether a consequence is natural and probable, 

consider all the circumstances established by the evidence. [¶] <Give if multiple 

potential causes.> [¶] [There may be more than one cause of (injury/_______ <insert 

other description>). An act [or omission] causes (injury/_______ <insert other 

description>), only if it is a substantial factor in causing the (injury/_______ <insert 

other description>). A substantial factor is more than a trivial or remote factor. 

However, it does not have to be the only factor that causes the (injury/_______ <insert 

other description>).]” The trial court here elected against instructing the jury with 

CALCRIM No. 240 because it would have been duplicative the language incorporated in 

CALCRIM No. 2100. 
38

consequence’ of defendant's original act.” (People v. Fiu (2008) 165 Cal.App.4th 360, 

372 (Fiu) [discussing CALJIC No. 3.40].) This language “requiring an injury . . . to be a 

direct, natural and probable consequence of a defendant’s act necessarily refers to 

consequences that are reasonably foreseeable.” (Ibid.) Moreover, CALCRIM Nos. 240 

and 2100 define a “natural and probable consequence” as “one that a reasonable person 

would know is likely to happen if nothing unusual intervenes.” Further, while explaining 

that there may be more than one cause of injury, the language of these instructions

specifies that an act causes injury “only if it is a substantial factor in causing” the injury,

and provides that a substantial factor “is more than a trivial or remote factor.” By 

instructing the jury with the relevant language of CALCRIM No. 2100 here, the trial 

court implicitly instructed on the principle of independent intervening causation.

The court in Fiu rejected the defendant’s contention that the trial court was 

required to instruct on supervening cause sua sponte. The court determined that the trial 

court’s CALJIC Nos. 3.40 and 3.41 instructions, which contain language similar to that in 

CALCRIM Nos. 240 and 2100, was a correct statement of the law of causation.15 (Fiu, 

supra, 165 Cal.App.4th at pp. 369-373; see also People v. Bland (2002) 28 Cal.4th 313, 

338 [CALJIC Nos. 3.40 & 3.41 “correctly define proximate causation”].) The language 

15 CALJIC No. 3.40, as discussed in Fiu, provided: “ ‘To constitute the crime of Murder 

or Manslaughter there must be in addition to a death of a human being an unlawful [act] 

[or] [omission] which was a cause of that death. [¶] The criminal law has its own 

particular way of defining cause. 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 in question and without which the death would not 

occur.’ ” (Fiu, supra, 165 Cal.App.4th at p. 369.) CALJIC No. 3.41, as discussed in Fiu, 

provided: “ ‘There may be more than one cause of death. When the conduct of two or 

more persons contributes concurrently as a cause of death, the conduct of each is a cause 

of the death if that conduct was also a substantial factor contributing to the result. A 

cause is concurrent if it was operative at the moment of the death and acted with another 

cause to produce the death.’ ” (Fiu, at p. 369, second italics added.)
39

in CALCRIM No. 240, and the relevant language in CALCRIM No. 2100, could be said 

to be equivalent to the combination of the predecessor instructions, CALJIC Nos. 3.40 

and 3.41. We conclude the language of CALCRIM No. 2100 given here adequately 

instructed the jury on the doctrine of superseding cause.

Because the trial court instructed the jury with the relevant language of CALCRIM 

No. 2100, which adequately and accurately instructed the jury on causation, the trial court 

did not abuse its discretion in declining defendant’s proposed pinpoint causation 

instruction quoting the language of Cervantes because it was duplicative of the 

definitions found in the instructions on the charged offense.

E. Harmless Error 16

“ ‘ “[M]isdirection of the jury, including incorrect, ambiguous, conflicting, or 

wrongly omitted instructions that do not amount to federal constitutional error are 

reviewed under the harmless error standard articulated” in [People v. Watson (1956) 46 

Cal.2d 818].’ ” (People v. Beltran (2013) 56 Cal.4th 935, 955 (Beltran), italics added.) 

“ ‘[U]nder Watson, a defendant must show it is reasonably probable a more favorable 

result would have been obtained absent the error.’ ” (Beltran, at p. 955.) 

Our high court has “not yet determined what test of prejudice applies to the failure 

to instruct on an affirmative defense.” (Salas, supra, 37 Cal.4th at p. 984.) However, if 

the more stringent Chapman standard for harmless error applies, as it does in the case of 

16 We note that, in his briefing, defendant repeatedly represents the evidence in a light 

favorable to his arguments. For example, he asserts that Dustin’s boat had no lookout or 

spotter, whereas there was evidence that Kim was the lookout on Dustin’s boat. 

Defendant asserts that there was no flag on Dustin’s boat. The evidence established that 

Kim had a flag. Defendant represents that he was operating his boat at a “disputed” 

speed which may have been within the speed limit. However, the evidence virtually 

universally indicates that defendant was speeding. Defendant asserts that Dustin did not 

know the “turn right” rule. Dustin testified that he was “familiar with the rule turning to 

the right,” but further testified that “the only move I could make that day to save seven 

people” was to turn left to avoid a direct collision with defendant’s boat. 
40

federal constitutional error such as where a trial court fails to instruct on an element of a 

crime, reversal is required “unless it can be shown ‘beyond a reasonable doubt’ that the 

error did not contribute to the jury’s verdict.” (People v. Sengpadychith (2001) 26 

Cal.4th 316, 324, citing Chapman, supra, 368 U.S. at p. 24 & People v. Flood (1998) 18 

Cal.4th 470, 492-504.) 

We conclude that the any instructional error committed by the trial court was 

harmless under any standard. We address briefly even those instructions the trial court 

did not abuse its discretion in rejecting. 

The evidence established that defendant was intoxicated, driving his boat at an 

excessive rate of speed and “coming right at” Dustin’s boat. Brian described the boat as 

speeding towards them, just to the right of Dustin’s boat. Defendant’s boat never slowed 

down and never changed course.17 Dustin testified: “the . . . only move I could make 

there is no doubt in my mind was to turn my boat left. If I had continued my course of 

action or even gone right I thought he was going to hit us. The only thing I could do is 

save those lives to save our boat is to move left. It was the only option.” Veering left 

instead of right would have been even more necessary had defendant’s boat been 

approaching Dustin’s boat just to the right as Brian described. (See fn. 3, ante.)

After it passed, defendant drove his boat “right over the top of” Rachael and Robin 

on the innertube, running “right through the center of them.” Defendant did not slow 

17 We note here that, to the extent that defendant argued in the trial court that, unlike 

Dustin, he acted appropriately by turning his boat to the right, the evidence on this point 

is conflicting. Most eyewitness testimony indicates that defendant went straight and 

never changed course. Kim testified that defendant’s boat “veered slightly to the right 

running right over” the victims. Defendant told a private investigator working for the law 

firm representing one of the victims that he turned the wheel to the right. In any event, 

defendant did not rely on his self-serving statement to the investigator that he turned 

right; rather he made the argument that, because his boat was to the right of Dustin’s 

boat, he had the right of way, Dustin’s boat was the “give way” boat, and Dustin was 

required to yield or turn away. 
41

down or turn before hitting the women and it did not stop afterward. O’Bird, defendant’s 

passenger, testified that defendant did not realize that he had run over the victims. 

The jury heard ample evidence about the principle embodied in Rule 14, so they 

had what they would have heard in an instruction by way of testimony. Detective Meyer 

testified that, generally, if two vessels on Lake Tulloch were approaching each other 

head-on, the vessels should pass on the right. Deputy Stark also testified that, generally, 

vessels approaching one another head-on should turn to the right. Moreover, defense 

counsel in closing identified Rule 14 and described its substance and applicability, and 

argued that Dustin’s boat turned to the left as defendant’s boat was coming towards it in 

violation of the rule, and that this was the cause of the incident. Thus, despite the fact 

that the jury was not instructed with Rule 14, it was certainly aware of its substance 

through the testimony and the significance the defense assigned to it. Thus, Rule 14 was 

before the jury, and not merely through the argument of counsel, which, as the jury was 

instructed, is not evidence (CALCRIM No. 222), but through competent witness 

testimony. Thus, the addition of an instruction articulating Rule 14 would not add 

anything of significance.

Moreover, the jury also heard evidence that Rule 14 was not absolute. Had the 

trial court instructed on Rule 14, it would have also been required to instruct on potential 

exceptions. As the Attorney General points out, the prosecution submitted additional 

boating rules in his response to defendant’s proposed instructions. One of those rules 

was Rule 2(b) of the U.S. Inland Navigation Rules, which provides: “In construing and 

complying with the U.S. Inland Navigation Rules, due regard shall be had to all dangers 

of navigation and collision and to any special circumstances . . . which may make a 

departure from these Rules necessary to avoid immediate danger.” (Italics added.) 

There was ample testimony supporting the applicability of the Rule 2(b) exception.

Deputy Cechini, a marine safety officer, testified that, when two vessels approach 

each other head-on, the primary responsibility is to take action to avoid a collision. He 
42

testified that another rule provided that a vessel may take any action necessary to avoid a 

collision, and thus a vessel is not always required to turn right to avoid a collision. 

Deputy Stark testified that, while generally, vessels approaching one another head-on 

should turn to the right, “there are other rules that pertain to doing anything you can to 

avoid an accident . . . .” “[I]f you see something in front of you, you don’t have to turn 

right you can do what ever you can to avoid that accident specifically slowing your 

vehicle or your vessel down turning left if you had to. Or completely stopping to make 

sure there is no accident.” Detective Meyer testified that, even with the right of way, a 

vessel operator must take all precautions necessary to avoid a collision, even if another 

vessel is violating an applicable law or rule. In referencing “other rules,” it seems plain 

that these witnesses were referencing, at least, the Rule 2(b) exception which allows a 

boat operator to “make a departure from these Rules necessary to avoid immediate 

danger.” 

Lastly, we also note there was no evidence indicating that a right turn maneuver

by Dustin would have avoided defendant’s collision into the victims on the innertube. 

The credible evidence established that defendant continued straight, apparently oblivious 

to Dustin’s boat. Defendant has not shown that, had Dustin turned right rather than left, 

the ultimate result would have been different — that defendant would not have collided 

into the victims. Based on defendant’s own conduct, it is clear the instruction would not 

have helped him, and thus its omission could not possibly prejudice defendant.

Based on the foregoing, we conclude, beyond a reasonable doubt, the trial court’s 

omission of the proposed Rule 14 instruction did not contribute to the jury’s verdict. 

(Chapman, supra, 386 U.S. at pp. 23-24.) 

Similarly, we conclude that the omission of Harbors and Navigation Code section 

658 (a) and (d) was harmless beyond a reasonable doubt. (Chapman, supra, 386 U.S. at 

pp. 23-24.) The jury heard evidence relevant to the defense theory that the manner in 

which Dustin operated his boat caused the incident, and defense counsel emphasized this 
43

theory repeatedly to the jury. The defense, in other words, maintained that the evidence 

established that Dustin’s vessel did not have a designated lookout (Harb. & Nav. Code, 

§ 658, subd. (a)), and that Dustin operated his vessel in such a way “so as to cause” the 

innertube “to collide with, or strike against” defendant’s boat (id., subd. (d)). The jury 

was instructed properly on causation. And again, there was no evidence establishing that 

a lookout could have prevented the victim’s injuries, let alone evidence that the failure to 

have one somehow caused those injuries. We conclude, beyond a reasonable doubt, the 

trial court’s omission of these proposed instructions did not contribute to the jury’s 

verdict. (Chapman, at pp. 23-24.)

The omission of CACI No. 411, a “pattern jury instruction designed for use in 

civil negligence cases involving a plaintiff suing a defendant for failing to prevent harm 

caused by a third party,” which was “inapposite given that another party’s contributory 

negligence is not a defense to criminal liability” (Elder, supra, 11 Cal.App.5th at p. 135) 

was likewise harmless beyond a reasonable doubt (Chapman, supra, 386 U.S. at pp. 23-

24). Again, the jury heard the evidence relevant to defendant’s theory that Dustin’s 

actions caused the collision, and was instructed on causation, including that there may be 

more than one cause of an injury, an act causes bodily injury to another person only if it 

is a substantial factor in causing the injury, and that a substantial factor need not be the 

only factor that causes the injury. (CALCRIM No. 2100.) Defense counsel in closing 

argued the substance of CACI No. 411, telling the jury that one is entitled to expect that 

others will use reasonable care and that one has the right to assume others’ good conduct. 

We conclude, beyond a reasonable doubt, the trial court’s omission of CACI No. 411 did 

not contribute to the jury’s verdict. (Chapman, supra, 386 U.S. at pp. 23-24.) Indeed, 

had the jury been instructed with CACI No. 411 on the principle that a person has the 

right to expect that every other person will use reasonable care and not violate the law, 

this almost certainly would have harmed, not helped, defendant’s case, because Dustin 

was entitled to expect defendant would do so as well. It is not disputed that defendant 
44

was operating his boat while intoxicated, and the evidence overwhelmingly established 

that defendant was speeding and oblivious to Dustin’s boat, did not look in Dustin’s 

direction, and did not see Dustin’s boat or the innertube and the victims — clear 

violations of the duty of reasonable care and violations of the law.

The omission of CALCRIM No. 3404 on accident was also harmless beyond a 

reasonable doubt. (Chapman, supra, 386 U.S. at pp. 23-24.) The jury heard the evidence 

and defense counsel’s extensive argument premised on the defense theory that the 

collision was caused by Dustin’s acts and that defendant’s involvement amounted to mere 

accident, and rejected this defense under the applicable causation instructions and the 

overwhelming evidence demonstrating defendant’s culpable negligence. We conclude, 

beyond a reasonable doubt, the trial court’s omission of this proposed instruction did not 

contribute to the jury’s verdict. (Ibid.) 

Nor was defendant prejudiced by the trial court’s refusal to instruct with the 

proposed language from Cervantes, supra, 26 Cal.4th at page 871. The standard 

instructions conveyed the principles contained in defendant’s proposed instruction. 

Defense counsel addressed the issue extensively in closing argument. The proposed 

instruction would have been confusing18 and, at best, redundant. 

18 As Associate Supreme Court Justice Carol Corrigan, the original chair of CALCRIM 

committee, noted, “the Blue Ribbon Commission on Jury System Improvement . . . 

observed: ‘jury instructions as presently given in California and elsewhere are, on 

occasion, simply impenetrable to the ordinary juror. [Citation.] [¶] The reason 

instructions are so often impenetrable is that they are based on the language of case law 

and statutes written by and for a specialized legal audience and expressed in terms of 

art . . . .” (CALCRIM Preface, p. ix, fn. omitted.) To say that the instruction defendant 

proposed here, parroting text from the appellate opinion in Cervantes, was impenetrable 

would have been an understatement. A trial court may refuse proposed instructions that 

may be potentially confusing. (Moon, supra, 37 Cal.4th at p. 30; Jo, supra, 15 

Cal.App.5th at p. 1174.)
45

Moreover, any error was harmless beyond a reasonable doubt because it is clear 

that a rational jury would have found defendant guilty absent any error. Even if Dustin’s

actions could be described as an intervening cause of the victims’ injuries, they would 

relieve defendant of criminal liability only if the jury found that defendant’s actions of 

driving under the influence, speeding, failing to observe Dustin’s boat and the victims on 

the innertube, and running directly over them while maintaining his course and speed was 

not a concurrent cause of the victims’ injuries. No reasonable jury could have found that 

defendant’s actions were not a concurrent cause of the victim’s injuries. (People v. Crew

(2003) 31 Cal.4th 822, 847 [any error in causation instructions harmless beyond a 

reasonable doubt; even if third-party’s actions were an independent intervening cause of 

the victim’s death, no reasonable jury could have found the defendant’s act of shooting 

the victim in the head was not a concurrent cause of her death].)

As asserted by the Attorney General, no reasonable jury could have found that the 

manner in which Dustin operated his vessel was “ ‘ “unforeseeable . . . an extraordinary 

and abnormal occurrence, which rises to the level of an exonerating, superseding 

cause.” ’ ” (Cervantes, supra, 26 Cal.4th at p. 871, quoting People v. Armitage (1987) 

194 Cal.App.3d 405, 420-421.)

Viewing the instructions as a whole and in light of the overwhelming evidence, we 

conclude that any errors in the refusal to give defendant’s proposed pinpoint instructions 

were harmless beyond a reasonable doubt. (Chapman, supra, 386 U.S. at pp. 23-24.)

III. Section 12022.7 and Personal Infliction

A. Defendant’s Contentions

Defendant asserts that he did not personally inflict the injuries to the victims as 

required by section 12022.7. Defendant asserts that, because of Dustin’s conduct, the 

evidence did not establish defendant was the direct cause, as opposed to merely the 

proximate cause, of the victim’s injuries. 
46

B. Section 12022.7, Personal Infliction, and Standard of Review

Insofar as relevant here, section 12022.7 provides: “(a) Any person who 

personally inflicts great bodily injury on any person other than an accomplice in the 

commission of a felony or attempted felony shall be punished by an additional and 

consecutive term of imprisonment in the state prison for three years. [¶] (b) Any person 

who personally inflicts great bodily injury on any person other than an accomplice in the 

commission of a felony or attempted felony which causes the victim to become comatose 

due to brain injury or to suffer paralysis of a permanent nature shall be punished by an 

additional and consecutive term of imprisonment in the state prison for five years.” 

(§ 12022.7, subds. (a), (b).)

“ ‘[T]he phrase “personally inflicts” means that someone “in person” . . . , that is, 

directly and not through an intermediary, “cause[s] something (damaging or painful) to 

be endured.” ’ ” (People v. Ollo (2021) 11 Cal.5th 682, 688 (Ollo).) Thus, a defendant 

“personally inflicts” great bodily injury if he directly causes the injury—that is, if the 

defendant “himself” “actually” “inflicts the injury” by “directly perform[ing] the act that 

causes the physical injury.” (People v. Cole (1982) 31 Cal.3d 568, 572-573, 579 (Cole).) 

Consequently, it is not enough to show that the defendant proximately caused the great 

bodily injury, i.e., that the defendant’s conduct was a “substantial factor contributing” to 

the injury because that conduct set in motion the chain of events that naturally and 

probably resulted in the injury. (People v. Rodriguez (2001) 69 Cal.App.4th 341, 346-

347 (Rodriguez).) “ ‘Proximately causing and personally inflicting harm are two 

different things.’ ” (Ollo, at p. 693.) However, the acts of more than one person can 

combine to cause an injury and a defendant whose act is one of two concurrent direct 

causes of an injury is liable for personal infliction under section 12022.7 even if that 

injury is inflicted accidentally. (People v. Guzman (2000) 77 Cal.App.4th 761, 764

(Guzman).)
47

“To the extent defendant challenges the sufficiency of the evidence, we view the 

evidence in the light most favorable to the judgment to determine whether it discloses 

substantial evidence, i.e., evidence that is reasonable, credible, and of solid value, such 

that a reasonable trier of fact could find the essential elements of the charged crime or 

allegation proven beyond a reasonable doubt.” (People v. Elder (2014) 227 Cal.App.4th 

411, 417 (Elder).)

C. Analysis

Substantial evidence supports the determination that defendant personally inflicted 

great bodily injury on the victims here. The evidence established that defendant, while 

intoxicated, drove his boat extremely fast, over the speed limit, directly at Dustin’s boat. 

Defendant did not look at Dustin’s boat. Dustin turned left to avoid a head-on collision, 

and testified that, had he not performed that maneuver, defendant’s boat would have 

“split us in half.” Passing within three to 10 feet of Dustin’s boat, defendant never 

slowed down and never changed course. Defendant then drove his boat “right over the 

top of” Rachael and Robin, running “right through the center of them.” Defendant did 

not slow down or turn before hitting the women and did not stop afterward. The two 

victims sustained great bodily injury, a fact that was not contested at trial and is not 

contested on appeal. Defendant was clearly a direct cause of the victims’ injuries.

Defendant maintains that Dustin caused the accident by turning left and 

“whipp[ing] the tube with the two women on it in the path of defendant’s boat,” and that 

therefore defendant did not personally cause his boat to collide with the victims. 

However, the jury obviously rejected this defense theory, argued extensively by defense 

counsel. In addition to all of the testimony concerning the manner in which defendant 

operated his vessel, evidence which we view in the light most favorable to the judgment, 

there was evidence to establish that the “turn right” rule was not absolute, and that a 

primary directive in operating a vessel on the lake was to do anything necessary to avoid 

a collision. 
48

Defendant emphasizes that proximate cause is not enough and relies on Rodriguez, 

supra, 69 Cal.App.4th 341. “In Rodriguez, the issue was whether a prior conviction for 

resisting a peace officer resulting in bodily injury was a serious felony under the three 

strikes law, as a felony in which the defendant ‘personally inflicted’ [great bodily injury]

[citation]. The evidence of the prior conviction showed only that the officer tackled the 

defendant, who was fleeing on a bicycle, and when both men fell to the ground, the 

officer hit his head and was injured. [Citation.] In asking the jury to decide whether the 

defendant’s prior conviction constituted a serious felony, the trial court instructed the jury 

that a person personally inflicts injury when he directly performs an act that causes the 

injury, but the court also instructed the jury, ‘ “A cause of an injury is an act that sets in 

motion a chain of events that proceed [sic] a direct, natural and possible consequence of 

the act, the injury, and without which the injury would not occur.” ’ [Citation.] The 

appellate court in Rodriguez held the instruction improperly equated ‘personally inflict’

with ‘proximate cause.’ [Citation.] ‘To “personally inflict” injury, the actor must do 

more than take some direct action which proximately causes injury. The defendant must 

directly, personally, himself inflict the injury.’ [Citation.] The court concluded the 

instructional error was prejudicial because, as a matter of law, the evidence did not show 

that the defendant directly inflicted the injury. [Citation.] The court observed, ‘[the 

defendant] did not push, struggle or initiate any contact with the officer during the 1992 

incident. Instead, the evidence shows that Rodriguez was trying to escape arrest on a 

bicycle and the officer injured himself when he tackled [the defendant].’ ” (Elder, supra, 

227 Cal.App.4th at pp. 420-421, discussing Rodriguez, at pp. 346-349, 352 (some italics 

omitted).)

Rodriguez does not help defendant. The instant case is nothing like Rodriguez, 

where the defendant did not initiate contact with the alleged victim and the alleged victim 

injured himself. Indeed, our case is much more like Guzman, supra, 77 Cal.App.4th 761. 

There, the appellate court upheld the “personally inflicted” great bodily injury
49

enhancement under section 12022.7, where the defendant violated the Vehicle Code by 

making an unsafe left turn in front of another vehicle which collided into defendant’s 

vehicle, causing injury to the defendant’s passenger. The Guzman court rejected the

defendant’s argument that the other driver was the cause of defendant’s passenger’s 

injuries, reasoning that the defendant’s “volitional act” of turning his car into oncoming 

traffic “was the direct cause of the collision and therefore was the direct cause of the 

injury.” (Guzman, at p. 764.) “[T]he fact that the collision involved two vehicles does 

not absolve [the defendant] of direct responsibility for [the victim’s] injuries.” (Ibid.)19

Here, like in Guzman, defendant’s volitional act directly caused the victims’ injuries. 

Viewing the evidence in the light most favorable to the judgment, substantial 

evidence supports the true findings on the enhancement allegations. Defendant “himself”

“actually” “inflict[ed] the injur[ies]” by “directly perform[ing] the act that cause[d] the 

physical injury.” (Cole, supra, 31 Cal.3d at pp. 572-573, 579.)

IV. Imposition of Two Section 12022.7, Subdivision (b), Enhancements

Defendant asserts that the trial court erred in imposing two section 12022.7, 

subdivision (b), enhancements for both victims when there was only one offense alleged 

in the information. Defendant asserts that “[o]ne of the enhancements should be stricken 

or at the very least, suspended.”

Section 12022.7, subdivision (h), states: “The court shall impose the additional 

terms of imprisonment under either subdivision (a), (b), (c), or (d), but may not impose 

more than one of those terms for the same offense.”

19 The Guzman court further noted, “the accidental nature of the injuries suffered does 

not affect this analysis” because “[t]he 1995 amendment to section 12022.7 deleted the 

requirement that the defendant act ‘with the intent to inflict the injury.’ ” (Guzman, 

supra, 77 Cal.App.4th at p. 764.) 
50

This argument was addressed and rejected in People v. Ausbie (2004) 123 

Cal.App.4th 855, 864 (Ausbie), disapproved on another ground in People v. Santana

(2013) 56 Cal.4th 999, 1011, fn. 6. The Ausbie court wrote: “Appellant contends the 

language of section 12022.7, subdivision (h) is clear and unambiguous and precludes the 

imposition of more than one enhancement. Respondent contends there is no error 

because there were two victims, two special findings by the jury (one as to each victim) 

and appellant should not receive a ‘windfall’ because the prosecutor gave a ‘substantial 

break’ to appellant by combining both victims into one count. [¶] Contrary to 

appellant’s argument, the statutory language does not limit the number of section 

12022.7, subdivision (a) enhancements to be imposed when there are multiple victims. 

Properly construed, subdivision (h) simply prohibits the trial court from imposing more 

than one section 12022.7 enhancement for injury to an individual victim.” (Ausbie, at 

p. 864.) “We . . . construe section 12022.7, subdivision (h) as limiting the sentencing 

court to one of the subdivision (a), (b), (c), or (d) enhancements for each injured victim, 

but not as prohibiting the court from imposing a section 12022.7 enhancement for each 

victim of a single offense when there are multiple victims who suffered great bodily 

injury.” (Ausbie, at p. 864.) We agree with the Ausbie court.

V. Fees

The trial court at sentencing imposed a court operations assessment (formerly a 

court security fee) of $40 (§ 1465.8) and a criminal conviction assessment fee of $30

(Gov. Code, § 70373). However, these fees are not reflected in the abstract of judgment.

We shall order the abstract corrected to reflect the trial court’s imposition of these fees.
51

DISPOSITION

The judgment is affirmed. The trial court is directed to prepare an amended 

abstract of judgment reflecting the imposition of the court operations assessment and 

criminal conviction assessment and to forward a certified copy of the abstract to the 

Department of Corrections and Rehabilitation.

 /s/

MURRAY, J.

We concur:

 /s/

BLEASE, Acting P. J.

 /s/

ROBIE, J.