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Filed 11/16/20 P. v. Katz CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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

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 This opinion has not been certified for publication or 

ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

ZACHARY A. KATZ,

Defendant and Appellant.

 A153625

 (San Mateo County

 Super. Ct. No. SC081375A)

Defendant Zachary Katz drove in the wrong direction on a highway 

while under the influence of alcohol and caused a fatal car crash. A jury 

convicted him of gross vehicular manslaughter while intoxicated, driving 

under the influence of alcohol causing bodily injury, and driving with a bloodalcohol level of 0.08 percent or more causing bodily injury. Defendant argues 

the trial court improperly responded to a jury question about his defense—

that he was unconscious due to an epileptic seizure while he was driving in 

the wrong direction—by simply repeating and directing the jury to specific 

instructions already provided. He also argues we must reverse a prior order

of this court denying his motion to suppress his blood-alcohol test results. We 

affirm.
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BACKGROUND

I. Vehicular Collision

In the early morning hours on October 5, 2013, three separate drivers 

witnessed a vehicle traveling northbound in the wrong direction on U.S. 

Highway 101 in the southbound lanes. The vehicle caused several cars to 

swerve out of the way to avoid colliding with it. Defendant’s wrong-way 

driving continued for approximately nine and one-half miles, when he

ultimately struck a taxi head-on. The taxi then hit a third car, and the taxi 

flipped over. As a result of the collision, one taxi passenger died, the taxi 

driver sustained multiple fractures, and the other passenger’s serious 

injuries and fractures required numerous surgeries and several weeks of 

intensive care.

Officers and emergency personnel responding to the collision found the

defendant pinned under the steering wheel of his car. The interior of the car

smelled of alcohol. Defendant’s eyes were red and watery, and his speech 

was slurred. An officer administered two preliminary alcohol screenings,

registering defendant’s blood-alcohol content of 0.158 and 0.160 percent, 

respectively. The officer then placed defendant under arrest for driving 

under the influence of alcohol. A few hours after defendant was extracted 

from his car and transported to the hospital, defendant’s blood was drawn,

which showed an alcohol concentration of 0.13 percent. Defendant admitted

consuming approximately three alcoholic beverages late the night before.

Based on these facts, an information was filed charging defendant with 

gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a)

[count 1]),1 driving under the influence of alcohol causing bodily injury (Veh.

Code, § 23153, subd. (a) [count 2]), and driving with a blood-alcohol level of 

1 All further unspecified statutory references are to the Penal Code.
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0.08 percent or more causing bodily injury (Veh. Code, § 23153, subd. (b)

[count 3]). The information also alleged additional enhancements for counts 

2 and 3 that defendant caused death or injury to more than one victim and 

that defendant personally inflicted great bodily injury. (Pen. Code, § 12022.7, 

subd. (a); Veh. Code, § 23558.)

II. Jury Trial

A. Unconsciousness Defense

At a jury trial, defendant argued an epileptic seizure rendered him

unconscious while he was driving in the wrong direction on the highway. The 

testimony at trial established that at various times in the past, he lost

consciousness and was unable to remember events during those times—a 

condition previously diagnosed as anxiety. Two years after the collision, 

however, defendant was diagnosed with temporal lobe epilepsy, a condition

resulting in recurrent seizures generally lasting between 30 seconds and two 

minutes. A professor of neurology and director of an epilepsy center testified 

that someone driving in the same manner as defendant was consistent with 

someone with temporal lobe epilepsy having a seizure.

The prosecution’s evidence demonstrated that defendant’s blood-alcohol 

level at the time of the collision was approximately 0.18 percent, indicating 

consumption and full absorption of approximately four alcoholic drinks.

B. Jury Instructions

The trial court provided the jury with a number of CALCRIM 

instructions consistent with defendant’s charges and defense. As given, 

CALCRIM No. 590, addressing the elements of gross vehicular manslaughter 

while intoxicated (count 1), instructed the jury: “[T]he People must prove 

that: [¶] 1. The defendant drove under the influence of an alcoholic beverage; 

[¶] 2. While driving that vehicle under the influence of an alcoholic beverage, 
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the defendant also committed a misdemeanor; [¶] 3. The defendant 

committed the misdemeanor with gross negligence; [¶] AND [¶] 4. The 

defendant’s grossly negligent conduct caused the death of another person.”

CALCRIM No. 2100, setting forth the charge of driving under the 

influence causing injury (count 2), as given, stated: “[T]he People must prove 

that: [¶] 1. The defendant drove a vehicle; [¶] 2. When he drove a vehicle, the 

defendant was under the influence of an alcoholic beverage. [¶] 3. While 

driving a vehicle under the influence, the defendant also committed an illegal 

act; [¶] AND [¶] 4. The defendant’s illegal act caused bodily injury to 

[victim].”

CALCRIM No. 2101, setting forth the charge of causing injury to 

another person while driving with a blood-alcohol level of 0.08 percent

(count 3), as given to the jury, stated: “[T]he People must prove that: 

[¶] 1. The defendant drove a vehicle; [¶] 2. When he drove, the defendant’s 

blood alcohol level was 0.08 percent or more by weight; [¶] 3. When the 

defendant was driving with that blood alcohol level, he also committed an 

illegal act; [¶] AND [¶] 4. The defendant’s illegal act caused bodily injury to 

another person.”

All three instructions stated the People must prove the defendant 

engaged in an illegal act or misdemeanor before finding defendant guilty of 

each charged offense. As such, each instruction further specified that the 

People alleged the defendant committed the following act or misdemeanor: 

“driving a vehicle upon a highway to the left of an intermittent barrier or a 

dividing section which separates two or more opposing lanes of traffic”—

wrong-way driving.

The trial court also instructed the jury with CALCRIM No. 3425,

setting forth the requirements for the unconsciousness defense, given as:
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“The defendant is not guilty of the crimes charged in Counts 1, 2 and 3 

. . . if he acted while unconscious. Someone is unconscious when he or she is 

not conscious of his or her actions. Someone may be unconscious even though 

able to move.

“Unconsciousness may be caused by an epileptic seizure or involuntary 

intoxication.

“The defense of unconsciousness may not be based on voluntary 

intoxication.

“The People must prove beyond a reasonable doubt that the defendant 

was conscious when he acted. If there is proof beyond a reasonable doubt 

that the defendant acted as if he were conscious, you should conclude that he 

was conscious, unless based on all of the evidence, you have a reasonable 

doubt that he was conscious, in which case you must find him not guilty.” 

(See CALCRIM No. 3425.) The parties agreed these instructions must be 

given to the jurors; there were no objections to the wording of these 

instructions; and the court did not reject any instructions that the defense 

counsel requested.

During deliberations, the jury asked: “[T]o use 3425 ‘unconscious’ 

[defense], dose [sic] the defendent [sic] need to be unaware of his actions the 

entire time he was driving under the influence OR just while driving the 

wrong way on 101 OR just at the time of the crash?” After consulting with 

counsel, the trial court repeated the sentence in CALCRIM No. 3245, “The 

People must prove beyond a reasonable doubt that the defendant was 

conscious when he acted.” The court then referred the jury back to its 

instructions, stating, “The act or acts required for any specific charged crime 

or lesser crime is set forth in the instruction for that specific crime.” There 

were no further questions about the CALCRIM No. 3425 instruction.
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The jury found defendant guilty as to all counts and found true all 

alleged enhancements.

DISCUSSION

I. Trial Court Response to Jury Question

Defendant contends the trial court incorrectly responded to the jury’s

request for clarification about his unconsciousness defense because it

repeated and referred the jury to the instructions already provided. He takes 

issue with the court’s alleged failure to clearly identify the “act” during which 

he was required to be conscious, an element the jury needed to assess the 

viability of his unconsciousness defense. According to the defendant, the only 

“correct” answer was “unconsciousness occurring only during the wrong way 

driving was a defense to that offense and therefore would be a defense to the 

charged offenses.” Anything aside from this response, he claims, violated the 

trial court’s duty under section 1138 to help the jury understand the legal 

principles of the case and deprived him of his due process right to his defense 

and correct jury instructions. (§ 1138; see People v. Moore (1996) 44 

Cal.App.4th 1323, 1331 (Moore).) We disagree.

A. Forfeiture

At the outset, defendant forfeited this claim on appeal. The trial court’s 

response was made after consulting with counsel, and the record does not 

reflect any objection, thus indicating an agreement with the proposed 

response. (See People v. Ross (2007) 155 Cal.App.4th 1033, 1048 [“A 

defendant may forfeit an objection to the court’s response to a jury inquiry 

through counsel’s . . . tacit approval,” meaning “the court makes clear its 

intended response and defense counsel, with ample opportunity to object, 

fails to do so”].) Although defendant frames his claim as a challenge to the 

“correctness” of the trial court’s response, he does not identify any actual 
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error. Substantively, his claim involves a modification rather than a 

“correction” of the trial court’s response to the jurors. By failing to request 

any allegedly crucial clarifying language from the trial court, which it had no 

sua sponte duty to provide, defendant cannot raise this claim now. (See 

People v. Lang (1989) 49 Cal.3d 991, 1024 [a party forfeits a claim “that an 

instruction correct in law and responsive to the evidence was too general or 

incomplete unless the party has requested appropriate clarifying” language].)

B. Section 1138

Even overlooking the defendant’s failure to object or to request 

clarifying language, he is no more successful on the merits. Section 1138 

requires a trial court to provide information “ ‘on any point of law arising in 

the case’ ” during jury deliberations, but it does not require it to elaborate on 

standard instructions. (People v. Hodges (2013) 213 Cal.App.4th 531, 539, fn. 

3; see § 1138.) “ ‘Where the original instructions are themselves full and 

complete, the court has discretion under section 1138 to determine what 

additional explanations are sufficient to satisfy the jury’s request for 

information. . . .’ ” (Hodges, at p. 539.) Errors under section 1138 are 

reviewed for an abuse of that discretion. (Moore, supra, 44 Cal.App.4th at pp.

1330–1331.)

Here, the trial court acted well within its discretion by directing the 

jury to review complete and correct instructions on defendant’s charged 

offenses and defense. It first repeated the first sentence of CALCRIM 

No. 3425, which stated, “The People must prove beyond a reasonable doubt 

that the defendant was conscious when he acted.” The instructions further

noted that the “defendant is not guilty of the crimes charged in Counts 

1, 2 and 3 and of the lesser crimes to the charged crimes if he acted while 

unconscious.” This was a correct statement of the law. (See People v. 
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Mathson (2012) 210 Cal.App.4th 1297, 1321 (Mathson) [“ ‘unconsciousness 

negates the elements of voluntariness and intent, and when not voluntarily 

induced is a complete defense to a criminal charge’ ”].)

The court next advised the jury to review the instructions for 

defendant’s three charged offenses by stating, “The act or acts required for 

any specific charged crime or lesser crime is set forth in the instruction for 

that specific crime.” All three instructions for these counts required the 

People to prove that defendant engaged in an illegal act or misdemeanor. 

(See CALCRIM Nos. 590 [(count 1) “While driving that vehicle under the 

influence of an alcoholic beverage, the defendant also committed a 

misdemeanor”], 2100 [(count 2) “While driving a vehicle under the influence, 

the defendant also committed an illegal act”], 2101 [(count 3) “When the 

defendant was driving with that blood alcohol level, he also committed an 

illegal act”].) This too was a correct statement of the law. (See, e.g., People v. 

Nicolas (2017) 8 Cal.App.5th 1165, 1173 [describing gross vehicular 

manslaughter as a crime requiring “the confluence of two different mental 

states: general intent in the driving of the vehicle, and gross negligence 

while committing a traffic violation”].)

CALCRIM Nos. 2100 and 2101 specified: “The People allege that the 

defendant committed the following illegal act: driving a vehicle upon a 

highway to the left of an intermittent barrier or a dividing section which 

separates two or more opposing lanes of traffic.” (Italics added.) CALCRIM 

No. 590 similarly identified the misdemeanor the People were required to 

prove before finding defendant guilty of the offense: “driving a vehicle upon a 

highway to the left of an intermittent barrier or a dividing section which 

separates two or more opposing lanes of traffic”—wrong-way driving. All 
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three instructions expressly referred to an additional special instruction

identifying the elements of wrong-way driving.

Read together, the instructions explained defendant was not guilty of 

his charged crimes if he was unconscious at the time he engaged in the illegal 

act of wrong-way driving. (Cf. People v. Galloway (1979) 100 Cal.App.3d 551, 

567–568 [“The absence of an essential element in one instruction may be

supplied by another or cured in light of the instructions as a whole”].) No 

further instruction or clarification was required.

Defendant nonetheless argues the trial court did not address the jury’s 

inquiry with “ ‘concrete accuracy’ ” and it should have expressly stated 

unconsciousness while driving in the wrong direction was a defense to all his 

charges. But defendant focuses entirely on the first portion of the trial 

court’s response—that the People have the burden of demonstrating 

defendant was conscious at the time he acted—reading it in isolation. 

Indeed, he ignores the second portion of the response referring the jury to the 

instructions, and he ignores the instructions as a whole. (See Moore, supra, 

44 Cal.App.4th at p. 1330 [reviewing the propriety of a court’s response to a 

jury inquiry requires an examination of the instructions as a whole].) After 

reviewing the entire jury charge, the trial court’s response sufficiently 

informed the jury of this requirement.

Relying on People v. Franklin (2018) 21 Cal.App.5th 881, 887, 

defendant further takes issue with the trial court’s repeating the instructions 

because the jury already indicated it did not understand them. This reliance 

is misplaced. “[C]omments diverging from the standard [instructions] are 

often risky.” (People v. Beardslee (1991) 53 Cal.3d 68, 97.) While a trial court 

is not authorized to “figuratively throw up its hands and tell the jury it 

cannot help” in response to a jury inquiry about the legal principle, it 
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satisfies its obligations under section 1138 by considering “how it can best aid 

the jury,” including referring the jury back to the specific instructions. (Ibid.; 

see Franklin, at p. 887.) Here, the record shows the trial court considered a 

specific response. After consulting counsel for both sides, it decided to 

reiterate to the jurors the specific jury instructions already provided. The 

trial court’s response was not an abuse of discretion.

C. No Reasonable Likelihood of Misunderstanding

Even if there were a flaw in the trial court’s response—which we do not 

hold—there was no “ ‘ “reasonable likelihood” that the jury misconstrued or

misapplied the law in light of the instructions given, the entire record of the 

trial, and the arguments of counsel.’ ” (Mathson, supra, 210 Cal.App.4th at p.

1312.)

As detailed above, CALCRIM No. 3425 and other instructions required 

the jury to find defendant not guilty of his charged offenses if there was a 

reasonable doubt he was conscious while he was driving in the wrong 

direction, not the entire time that he was driving. Although at trial 

defendant testified that he lacked awareness the entire time he was driving, 

defendant’s epilepsy specialist opined that defendant was unconscious during 

a seizure that occurred while he was driving. He further expressly testified 

that it was “entirely within the realm of possibility” that defendant was 

unaware of his actions for nine minutes during and immediately after a 

complex seizure—the estimated period of time that defendant was driving.

In response to another hypothetical, the specialist testified that driving in the 

wrong direction for 9 to 10 miles, like defendant, was very consistent with 

someone driving experiencing a seizure and postseizure effects. In his closing 

argument, defense counsel reiterated this and identified wrong-way driving 

as the focal point for defendant’s unconsciousness defense by stating 
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defendant “has to intentionally do the act, and the act is driving the wrong 

way on highway 101 leading to the death . . . .” (Italics added.)

Defendant claims the jury was confused about the instructions, but 

“ ‘ “ ‘ “we must assume that jurors are intelligent persons and capable of 

understanding and correlating all jury instructions which are given.” ’ ” ’ ” 

(People v. Landry (2016) 2 Cal.5th 52, 95.) During the remainder of the 

deliberations, the jury sent an additional question in a note to the court but 

did not ask any further questions about the application of CALCRIM 

No. 3425. We see no basis to conclude the jury misinterpreted the 

instructions or applied them in a way that violated defendant’s rights.

2 (See 

Mathson, supra, 210 Cal.App.4th at p. 1312.)

In light of this conclusion, we do not examine whether defendant was 

prejudiced by any alleged trial court error. (See People v. Lua (2017) 10 

Cal.App.5th 1004, 1017 [failing to adequately answer jury question subject to 

prejudicial error analysis]; see also People v. Roberts (1992) 2 Cal.4th 271, 

326 [applying the prejudice standard of People v. Watson (1956) 46 Cal.2d 

818, 836, of “whether the error resulted in a reasonable probability of a less 

favorable outcome”]; Chapman v. California (1967) 386 U.S. 18, 24 [federal 

standard that error was harmless beyond a reasonable doubt].)

2 There is no merit to defendant’s claims, to the extent that he makes 

them, that the trial court denied him the right to present his unconsciousness 

defense or that the trial court failed to instruct the jury on that defense. 

Defendant presented extensive evidence to support his unconsciousness 

defense, and the trial court expressly instructed the jury with CALCRIM 

No. 3425 on this defense. (See People v. Dowdell (2014) 227 Cal.App.4th 

1388, 1420 [rejecting defendant’s claim that erroneous instruction violated 

her right to present a defense where defendant introduced substantial 

evidence supporting defense].)
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II. Motion to Suppress

We reject defendant’s additional request to reconsider the writ decision

in People v. Superior Court (Katz) (Jan. 10, 2017, A149715) [nonpub. opn.], 

issued by a different panel of this division and denying the suppression of his 

blood-alcohol test results.

3 Defendant’s claim is precluded by the law of the 

case doctrine. (See People v. Stanley (1995) 10 Cal.4th 764, 786 [when 

“ ‘ “upon an appeal, the [reviewing] court, in deciding the appeal, states in its 

opinion a principle or rule of law necessary to the decision, that principle or 

rule becomes the law of the case and must be adhered to throughout its 

subsequent progress, both in the lower court and upon subsequent 

appeal” ’ ”].)

Relevant here, defendant’s blood was drawn at the hospital after an 

officer told him that he had to submit to a breath or blood test and that only 

the blood test was available. Defendant agreed to the blood test but was not 

read any formal notice of his right to refuse the test or consequences of that 

refusal. The trial court suppressed the blood test results based on 

defendant’s lack of voluntary consent. In a writ proceeding initiated by the 

People, this court determined the results were admissible because they would 

have inevitably been discovered through a warrant, but allowed defendant to 

renew his suppression motion in the trial court to present evidence that the

inevitable discovery doctrine did not apply. (People v. Superior Court (Katz)

(Mar. 29, 2016, A146834) [nonpub. opn.].) The trial court determined the 

defense sufficiently contradicted a conclusion the results would have been 

inevitably discovered and granted the suppression motion, which this court 

3 Defendant requested that we take judicial notice of records of this 

court from the two prior writ proceedings addressing his motions to suppress 

that arose from this case prior to trial. We now grant his request. (See Evid. 

Code, §§ 452, subd. (d), 459, subd. (a).)
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again vacated in a second writ proceeding. (People v. Superior Court (Katz), 

supra, A149715.)

Defendant acknowledges the law of the case doctrine applies because 

the court already determined the precise issue here: Would an officer have 

inevitably discovered defendant’s blood test results after obtaining a 

warrant? But rather than arguing any significant change in the 

circumstances of the evidence, he urges us to reconsider the previous decision 

as wrongly decided and based on rarely cited case law. (See People v. Sons

(2008) 164 Cal.App.4th 90, 98–99 [law of the case doctrine “ ‘ “prevents the 

parties from seeking . . . reconsideration of an already decided issue in the 

same case absent some significant change in circumstances” ’ ”].) We 

disagree. The California Supreme Court declined to grant review of this 

issue (People v. Superior Court (Katz), supra, A149175, rev. den. Mar. 29, 

2017, S240175), and we similarly decline to reconsider the issue.

DISPOSITION

The judgment is affirmed.4

4 We deny defendant’s companion petition for writ of habeas corpus by 

separate order filed this same date. (In re Katz, A159803.)
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_________________________

Jackson, J.

WE CONCUR:

_________________________

Siggins, P. J.

_________________________

Petrou, J.

A153625/People v. Zachary A. Katz