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Filed 10/30/07 P. v. Brown CA 4/2

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
ALAN LEONARD BROWN,
Defendant and Appellant.
E041149
(Super.Ct.No. RIF125140)
OPINION
APPEAL from the Superior Court of Riverside County. Robert George Spitzer,
Judge. Affirmed.
Mark Alan Hart, under appointment by the Court of Appeal, for Defendant and
Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Gary W. Schons, Senior Assistant Attorney General, and Maxine
Cutler, and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
2
A jury found defendant and appellant Alan Leonard Brown guilty of second
degree murder (Pen. Code, § 187, subd. (a),1 count 1), driving under the influence
causing bodily injury (Veh. Code, § 23153, subd. (a), count 2) and driving with a blood
alcohol content of .08 percent or greater causing bodily injury. (Veh. Code, § 23153,
subd. (b), count 3.) Defendant pled guilty to the misdemeanor of driving with a
suspended license. (Veh. Code, § 14601.2, subd. (a), count 4.) The jury also found true
the enhancement allegations on counts 2 and 3 that defendant personally inflicted great
bodily injury on two victims. (§§ 12022.7, subd. (a), 1192.7, subd. (c)(8).) The trial
court sentenced defendant to a total term in state prison of 23 years, including 15 years to
life on count 1, the consecutive term of two years on count 2, plus a consecutive three
years for each of the two great bodily injury enhancements. The court imposed a
concurrent term of six months on count 4, and stayed the sentence and enhancements on
count 3.
On appeal, defendant contends that: 1) the trial court erred in denying his motion
in limine to suppress statements he made to a police officer at the scene of the accident;
and 2) his Sixth Amendment right to a jury trial, as defined in Blakely v. Washington
(2004) 542 U.S. 296 (Blakely), Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi),
and Cunningham v. California (2007) ___ U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856]
1 All further statutory references will be to the Penal Code, unless otherwise
noted.
3
(Cunningham), was violated when the trial court imposed consecutive sentences. We
disagree and affirm.
FACTUAL BACKGROUND
At around 2:00 a.m. on July 21, 2005, Christian Esquivel was driving his mother’s
car with two passengers, in Corona. He stopped at a flashing red light at the intersection
of Sixth Street and Smith, looked to his left, and saw a red car coming. He could not
determine its speed. Esquivel proceeded into the intersection. The red car, which had
been spotted by police officers speeding just moments before, did not slow down or stop.
Officer Robert Paul, who had responded to a call for assistance regarding the speeding
car, drove to the intersection of Sixth and Smith in time to observe a collision between
the red car and Esquivel’s car. Officer Paul estimated that the red car was going
approximately 100 miles per hour. Esquivel’s car spun around, stopped at the curb, and
immediately caught on fire. One of Esquivel’s passengers was ejected from the car and
died as a result of blunt force head trauma. Esquivel and the other passenger were pulled
out of and away from the burning car and were hospitalized for several days.
After hearing about the collision, Officer Jason Morris drove to the scene of the
accident. He saw other officers tending to the burning car at the intersection of Sixth and
Smith so he drove further west on Sixth Street, where he saw the red car, which was
turned over on its roof.2 He approached the car and noticed one male occupant in it—
defendant. As Officer Morris dragged defendant out of the car, defendant cried out in
2 The record refers to the red car as burgundy and maroon, as well.
4
pain. A large can of beer fell out of the car with him. Officer Morris dragged defendant
10 to 15 feet away from the car and waited with him for paramedics to arrive. At that
point in time, he did not arrest defendant or handcuff him because he had no reason to do
so. While Officer Morris was waiting with defendant, he asked him some questions
about the collision and tape recorded the conversation with a digital tape recorder.3
Officer Morris asked defendant, “What happened, dude?” Defendant said he went
through a stop sign. Officer Morris asked him if he had been drinking, and then asked
how much he had been drinking. Defendant replied, “Not enough.” Officer Morris
asked him a few other brief questions, including where he was in pain, which way he was
driving, what and where he was drinking, if he was wearing his seatbelt, and how fast he
was going. When the paramedics arrived, they placed defendant in an ambulance and
drove him to the hospital, unaccompanied by any police officer. Officer Morris drove to
the hospital in his police car.
Police Investigator Bryan Wilson, a traffic investigator and accident
reconstructionist, arrived at the scene of the collision at 2:30 a.m. From his investigation,
he concluded that defendant was driving between 93 and 113 miles per hour, while
Esquivel was driving between 16 and 21 miles per hour.
Investigator Wilson interviewed defendant at the hospital at 9:30 a.m., later that
morning. Defendant told Investigator Wilson that he had previously been arrested for
3 The jury was given a transcript of the recording, and the recording was played
for the jury.
5
driving under the influence (DUI) twice, once causing a collision. He told Investigator
Wilson that his license was currently suspended because he was supposed to have an
ignition interlock device4 installed in his car, but he never did. His license had been
suspended for the past 12 years. He also stated that he completed a DUI program 15
years ago, but failed to complete the program the second time. Defendant admitted that
the current collision was his fault. He said he was speeding down the street to catch the
green lights. In addition, he told Investigator Wilson that he was taking Prozac and
Trazodone. Investigator Wilson subsequently obtained defendant’s prescription bottles
from his mother. Both bottles contained warning labels stating that the drugs could cause
drowsiness, which could be intensified by alcohol.
A blood sample was taken from defendant at 3:05 a.m., and his blood alcohol level
was .19. The test also revealed Prozac and Trazodone in his blood.
ANALYSIS
I. The Trial Court Properly Denied Defendant’s Motion in Limine to Suppress His
Statements to Officer Morris
Defendant argues that the evidence of his statements to Officer Morris at the scene
of the collision was improperly admitted in violation of his rights under Miranda.5 The
issue is whether defendant was “‘taken into custody or otherwise deprived of his freedom
of action in any significant way.’ [Citation.]” (People v. Forster (1994) 29 Cal.App.4th
4 Defendant referred to it as a “breath machine.”
5 Miranda v. Arizona (1966) 384 U.S. 436.
6
1746, 1753 (Forster).) We conclude that he was not; therefore, the Miranda safeguards
did not apply.
A. Procedural Background
A preliminary hearing was held on December 2, 2005. Officer Morris, whose
subsequent trial testimony is presented above in the statement of facts, testified at the
preliminary hearing that he asked defendant questions about what happened after the
collision. When the prosecutor asked Officer Morris what defendant told him, defendant
objected, based on Miranda. After initially overruling the objection, the court sustained
it. A lengthy discussion then ensued about whether defendant was free to leave and if
Miranda applied. During the discussion, the court asked Officer Morris if he would have
allowed defendant to walk away while he was questioning him. Officer Morris replied,
“Absolutely not, sir, because I have a duty to investigate the traffic accident.” The
prosecutor requested the court to admit the evidence of defendant’s statements to Officer
Morris, subject to a motion to strike at the end of the hearing. The court agreed to do so.
It then continued the preliminary hearing to December 16, 2005.
At the continued preliminary hearing, Officer Morris testified that defendant was
not in custody at the time he was asking questions about the collision. Officer Morris
asked defendant how fast he was going, and if he had had any alcohol to drink. In
response to the latter question, defendant said, “‘Not enough.’” At that point, Officer
Morris said he ceased questioning defendant, and the paramedics took defendant to the
hospital.
7
At the close of evidence at the preliminary hearing, the court asked the parties to
address defendant’s Miranda objection to Officer Morris’s testimony regarding
defendant’s statements made at the scene of the collision and at the hospital. The court
then denied defendant’s request to suppress the statements, citing Berkemer v. McCarty
(1984) 468 U.S. 420 (Berkemer) and other cases.
Subsequently, defendant filed a motion in limine to suppress his statements made
to Officer Morris at the scene of the collision. He claimed that he was in custody and
should have been given Miranda warnings before being questioned, considering the
circumstances that: 1) he caused a major traffic accident and the police were on the
scene; 2) Officer Morris testified at the preliminary hearing that he was not allowed to
leave, pending investigation of the collision; and 3) Officer Morris knew that defendant
was not going to get up and leave, given his injuries. The court concluded that the
interview that occurred at the scene of the collision did not constitute a custodial
interrogation, within the meaning of Miranda. The court specifically noted that the
contact between Officer Morris and defendant was relatively brief, and that the officer
simply presented “an open-ended question, ‘What happened?’ and a few follow-up
questions.”
B. Standard of Review
On appeal, “[w]e apply a deferential substantial evidence standard to the trial
court’s factual findings, but independently determine whether the interrogation was
custodial. [Citation.]” (People v. Pilster (2006) 138 Cal.App.4th 1395, 1403 (Pilster).)
8
C. Defendant Was Not in Custody
“It is settled that the safeguards prescribed by Miranda become applicable as soon
as a suspect’s freedom of action is curtailed to a ‘degree associated with formal arrest.’
[Citation.]” (Berkemer, supra, 468 U.S. at p. 440.) “Custody determinations are resolved
by an objective standard: Would a reasonable person interpret the restraints used by the
police as tantamount to a formal arrest? [Citations.] The totality of the circumstances
surrounding an incident must be considered as a whole. [Citation.]” (Pilster, supra, 138
Cal.App.4th at p. 1403, fn. omitted.) Objective indicia of custody for Miranda purposes
include: “(1) whether the suspect has been formally arrested; (2) absent formal arrest, the
length of the detention; (3) the location; (4) the ratio of officers to suspects; and (5) the
demeanor of the officer, including the nature of the questioning.” (Forster, supra, 29
Cal.App.4th at p. 1753.)
In Berkemer, the United States Supreme Court concluded that an officer’s roadside
questioning of a motorist detained pursuant to a routine traffic stop did not constitute
custodial interrogation for Miranda purposes. (Berkemer, supra, 468 U.S. at pp. 435-
440.) The Court noted that the “detention of a motorist pursuant to a traffic stop is
presumptively temporary and brief.” (Id. at p. 437.) The court then contrasted a
stationhouse interrogation, “which frequently is prolonged, and in which the detainee
often is aware that questioning will continue until he provides his interrogators the
answers they seek.” (Id. at pp. 437-438.)
Here, defendant has failed to demonstrate that he was subjected to restraints
comparable to those associated with a formal arrest. When Officer Morris questioned
9
defendant, he had not been formally arrested. The length of the questioning was very
brief, as noted by the court. Defendant was questioned at the scene of the collision, not a
police station. This public atmosphere, in which passersby could view the interaction,
was “substantially less ‘police dominated’ than that surrounding the kinds of
interrogation at issue in Miranda itself . . . .” (Berkemer, supra, 468 U.S. at pp. 438-
439.) Officer Morris was the only officer questioning defendant, and the questions were
open-ended, non-accusatory, and investigative. The officer simply asked questions to aid
his investigation of the collision. (i.e., What happened? Were you drinking? How fast
were you going? Were you wearing a seatbelt?) Even after questioning defendant,
Officer Morris did not place him under arrest. He waited with him for the paramedics to
arrive. Defendant then went to the hospital in the ambulance, unaccompanied by any
police officer.
Although Officer Morris told the court he would not have allowed defendant to
walk away while he was questioning him because he had a duty to investigate the
accident, his intention was not communicated to defendant. “A policeman’s
unarticulated plan has no bearing on the question whether a suspect was ‘in custody’ at a
particular time; the only relevant inquiry is how a reasonable man in the suspect’s
position would have understood his situation.” (Berkemer, supra, 468 U.S. at pp. 442, fn.
omitted.)
Considering the totality of the circumstances surrounding the questioning of
defendant, we conclude he was not in custody and was thus not entitled to Miranda
warnings.
10
D. Any Error Was Harmless
Defendant argues that the court’s admission of his comment, “Not enough” (his
response when Officer Morris asked him how much he had to drink), was prejudicial
error, since the prosecutor allegedly used that statement to prove implied malice. Any
error in admitting that statement was harmless beyond a reasonable doubt. (People v.
Peracchi (2001) 86 Cal.App.4th 353, 363.)
Defendant correctly points out that the prosecution used defendant’s statement,
“Not enough,” in his closing argument. The prosecutor argued that, after defendant had
been drinking for four hours, his attitude was that he had not had enough, and that remark
said a lot about his disregard for the lives and safety of others. However, there was an
abundance of other evidence that showed defendant’s conscious disregard for life.
Defendant admitted during his interview with Investigator Wilson that he had two
previous arrests for driving under the influence—one of which involved a collision.
Defendant was required to, and did, complete a DUI program, as a result. This fact alone
showed that defendant had knowledge of the dangers of driving under the influence. He
also admitted that he failed to complete the DUI program the second time he was
supposed to take it. At the time of the current collision, defendant was driving with a
license that had been suspended for 12 years. He admitted that he was supposed to install
an ignition interlock device, but never did. Moreover, defendant took Prozac and
Trazodone that day, and, despite the warnings against mixing drugs with alcohol, he
consumed so much alcohol that his blood alcohol level was .19 percent. He then drove
his car between 93 and 113 miles per hour. In light of this evidence, which clearly
11
displays defendant’s implied malice, any error in admitting his statement was harmless
beyond a reasonable doubt.
II. The Trial Court Properly Imposed Consecutive Sentences
Defendant claims that the trial court’s imposition of the sentence in count 1
consecutive to the sentence in count 2, based on facts that were not found true beyond a
reasonable doubt by the jury violated his constitutional rights to a jury trial and due
process, under Blakely, supra, 542 U.S. 296, and Apprendi, supra, 530 U.S. 466. He
argues that applying Blakely and Apprendi to consecutive sentencing is consistent with
the reasoning of Cunningham, supra. We disagree.
Cunningham did not address the constitutionality of California’s Determinate
Sentencing Law (DSL) pertaining to a trial court’s decision to impose concurrent or
consecutive sentences. It thus did not overrule the California Supreme Court’s decision
in People v. Black (2005) 35 Cal.4th 1238 (Black) (overruled on other grounds in
Cunningham, supra) that “Blakely’s underlying rationale is inapplicable to a trial court’s
decision whether to require that sentences on two or more offenses be served
consecutively or concurrently.” (Id. at p. 1262.) We are bound by Black’s holding that
the reason(s) for imposing a consecutive term need not be determined by the jury.
(Black, supra, at pp. 1263-1264; see Auto Equity Sales, Inc. v. Superior Court (1962) 57
Cal. 2d 450, 455-456.)
DISPOSITION
The judgment is affirmed.
12
/s/ HOLLENHORST
Acting P.J.
We concur:
/s/ McKINSTER
J.
/s/ RICHLI
J.

TV star faces possible 8 years prison for California DUI Death

California DUI criminal defense attorney news

TV Star DUI Hit and Run


LOS ANGELES California DUI

More than 3,000 signatures were delivered this morning, in hopes of convincing a Beverly Hills judge to impose a severe sentence on actor Lane Garrison for the death of a teenager in a drunk driving crash.

Garrison, who starred in the TV Series "Prison Break," had twice the legal limit for alcohol when he crashed his S-U-V into a tree last December, killing a passenger, 17-year-old Vaughn Setian. Family spokesman James Lee says they want Garrison to get the maximum of 7 or 8 years in prison.

Garrison faces sentencing tomorrow. He pleaded guilty to two felonies: vehicular manslaughter without gross negligence and driving under the influence causing injury. He also pleaded guilty to providing alcohol to a minor, a misdemeanor.

San Diego California DUI - Drugs Vicodin case

San Diego California DUI criminal defense attorney - Drugs Vicodin case

Filed 10/29/07 P. v. Johnson CA3


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(El Dorado)

----

THE PEOPLE,
Plaintiff and Respondent,

v.

DANNY LEE JOHNSON,

Defendant and Appellant.
C052142
(Super. Ct. No. P03CRF0726)


Defendant was convicted after a jury trial of driving under the influence of drugs causing injury (Veh. Code, § 23153, subd. (a)). The jury further found defendant had caused great bodily injury to the victim (Pen. Code, § 12022.7, subd. (b)). Defendant admitted he had a prior conviction for driving under the influence of drugs (Veh. Code, § 23540).

The trial court sentenced defendant to the upper term of three years in state prison and five years for the great bodily injury enhancement, for a total of eight years in state prison.

Defendant appeals. He contends his right to due process and his privilege against self-incrimination were violated when the trial court permitted the prosecutor to impeach him with his prior testimony on cross-examination. He also contends his upper-term sentence violates the principles of Blakely v. Washington (2004) 542 U.S. 296, 303 [159 L.Ed.2d 403, 413] (Blakely). We affirm.

BACKGROUND

At approximately 3:00 p.m. on October 29, 2003, defendant was driving his truck westbound on Highway 193 toward Georgetown. This portion of the highway is curvy, has one lane going in each direction, and has no center divider.

Ariana Carlson1 was driving in her car directly in front of defendant. She was driving approximately 45 to 55 miles per hour. Ariana saw defendant’s truck come up behind her “pretty quick,” and it slowed only when it was a half car length behind her. Defendant continued to tailgate her for several minutes, so Ariana looked for a place to pull over. Afraid to slow down too much for fear defendant would hit her, she pulled off the road at a turnout without braking. After her car was completely on the gravel, she braked hard. She had not signaled that she was going to pull over because her turn signal was broken.

Defendant, however, did not wait for Ariana’s car to pull entirely off the road. Instead, defendant crossed over the center line as he passed Ariana’s car. Larry Jennings, who was traveling the opposite direction, was able to swerve and avoid colliding with defendant’s truck. Nancy Carlson, however, who was traveling behind Jennings in her convertible, was struck by defendant’s truck and sent off the road and into a ravine.

Jennings said that after the accident, defendant appeared disoriented but uninjured. Ariana described defendant as not “all there” mentally. Defendant was taken to a medical center by ambulance. He had lacerations on his face, arms and legs. California Highway Patrol Officer Chris Lane spoke to defendant at the medical center at approximately 6:20 p.m. Defendant had red, watery eyes, was sleepy and lethargic, and his speech was slurred and garbled.

Defendant was released from the medical center after his evaluation by hospital staff, without being admitted. At this time, defendant told Lane he had taken two Valium pills around noon and had eaten half of a sandwich about an hour before that. Defendant also said he was not under the care of a doctor.

Lane had defendant perform several field sobriety tests, after which Lane opined defendant was under the influence of a depressant and unable to safely operate a vehicle. He arrested defendant and had the medical center staff draw a blood sample.

The blood sample was drawn at 6:45 p.m. Results indicated therapeutic levels of substances found in Valium and Vicodin. Forensic scientist, Timothy Appel, opined that based on Lane’s observations, defendant’s symptoms, the field sobriety tests and defendant’s driving, that defendant was under the influence of Valium or Vicodin at the time of the collision. Appel also stated the peak plasma level of Valium and Vicodin is two to three hours and noted that the amount of drugs in defendant’s system would have been higher at the time of the collision.

Defendant testified that he took Vicodin five minutes before the accident. He does not know why he told Lane he took two Valium at noon. Further details regarding defendant’s testimony are set forth in the discussion.

Dr. Alan Wu, a professor of laboratory medicine, was called to testify by defendant. Wu testified the peak absorption time of Valium and Vicodin is approximately an hour and a half and can be affected by the contents of the stomach. Wu opined that one’s ability to drive a motor vehicle would not be impaired within 15 minutes of taking Vicodin.

Nancy suffered extremely severe injuries as a result of the collision and remains physically disabled and cognitively impaired.

DISCUSSION

I

Defendant contends he was improperly impeached on cross-examination with prior statements that he had been warned about the dangers of driving while taking Vicodin. He contends the trial court prejudicially erred when it allowed the prosecutor to use his prior statements because it exceeded the scope of direct examination. He further argues that, to the extent his trial counsel did not lodge a timely objection, he received ineffective assistance of counsel. We reject his claims.

Defendant testified very briefly on direct examination. He admitted he took Vicodin less than five minutes before the collision. He vaguely recalled speaking to an officer at the hospital. At the time, he was confused, tired, and in pain. His entire body hurt, including his head, leg, and arms. He did not have a clear recollection of what had happened.

On cross-examination, the prosecutor asked defendant where he had obtained the Vicodin. Defendant responded that he had a prescription from Dr. Sue. The prosecutor then asked, “Dr. Sue warned you about driving and taking Vicodin, right?” Defendant answered, “No, he did not.” Defendant admitted, however, that he knew there was a danger.

The prosecutor sought a bench conference to request he be allowed to use defendant’s prior sworn testimony from his previous trial wherein he was charged with driving under the influence of Soma and Vicodin. Specifically, the prosecutor requested he be permitted to impeach defendant’s statement that he was not warned about the danger of driving and taking Vicodin because he had previously testified that both Dr. Sue and the pharmacist had so warned him.

Defense counsel objected, arguing the prior statements were “so prejudicial I think that it goes beyond the scope of direct [examination].” Defense counsel further argued that the prior statements were irrelevant, arguing: “Whether or not he was warned has nothing to do with whether or not he took the drug and whether or not the levels in his system has to do with impairment or intoxication at the time of the accident.”

The trial court ruled that, although it would have entertained defendant’s objection to exceeding the scope of direct examination earlier, the objection was untimely because the jury had now heard testimony concerning whether Dr. Sue had warned defendant. The trial court then ruled the prior statements appeared to be inconsistent with his current testimony and the prosecutor would be permitted to cross-examine defendant with those statements.

Defendant contends the trial court erred and deprived him of his rights against compulsory self-incrimination and of due process by allowing the prosecutor to cross-examine him on a matter which exceeded the scope of direct examination. We agree with the trial court’s ruling that such objection was untimely.

By the time defendant objected to the scope of the cross-examination, whether the prosecutor’s question about Dr. Sue warning him had gone beyond the scope of direct was no longer appropriately before the court. Defendant had already testified in a manner inconsistent with prior statements. He had already stated that Dr. Sue had not warned him of the dangers of taking Vicodin and driving. The trial court did not err in ruling that defendant’s objection to the scope of the cross-examination into this subject area was untimely. (Evid. Code, § 3532 [objection must be timely made].)

Nor may defendant prevail based on ineffective assistance of counsel for any failure to lodge a timely objection to the scope of the cross-examination.

To establish ineffective assistance of counsel, defendant must demonstrate that his counsel’s performance was deficient and that defendant suffered prejudice as a result. (Strickland v. Washington (1984) 466 U.S. 668, 684-685, 687, 691-692 [80 L.Ed.2d 674, 691-692, 693, 696]; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) “[T]he mere failure to object rarely rises to a level implicating one’s constitutional right to effective legal counsel. [Citation.]” (People v. Boyette (2002) 29 Cal.4th 381, 433.)

Here, even assuming for the sake of argument that counsel had timely objected to the scope of the cross-examination, defendant cannot establish the trial court would have excluded the evidence. (See People v. Lewis (2001) 26 Cal.4th 334, 359 [“Where ‘there was no sound legal basis for objection, counsel’s failure to object to the admission of the evidence cannot establish ineffective assistance’”].) Contrary to defendant’s representation on appeal, the trial court did not indicate it would have sustained such an objection had it been timely, the court simply stated it would have entertained it.

A defendant who testifies waives his Fifth Amendment privilege against self-incrimination to the extent of the scope of relevant cross-examination. (People v. Mayberry (1975) 15 Cal.3d 143, 160.) “When a defendant voluntarily testifies, the district attorney may fully amplify his testimony by inquiring into the facts and circumstances surrounding his assertions, or by introducing evidence through cross-examination which explains or refutes his statements or the inferences which may necessarily be drawn from them.” (People v. Cooper (1991) 53 Cal.3d 771, 822.) “[T]he scope of proper cross-examination may extend to the whole transaction of which the witness has testified, or it may be employed to elicit any matter which may tend to overcome, qualify or explain the testimony given by a witness on his direct examination.” (People v. Dotson (1956) 46 Cal.2d 891, 898.) Here, by testifying that he took Vicodin prior to the accident, defendant opened the scope of cross-examination to include all matters relevant to his having taken Vicodin prior to the accident. (See People v. Pike (1962) 58 Cal.2d 70, 90.) Thus, defendant cannot establish the trial court would have sustained a timely objection to the prosecutor’s question regarding whether Dr. Sue had warned defendant of the dangers of taking Vicodin and driving.

Furthermore, defendant has failed to show either deficient performance or prejudice, both of which he must demonstrate to establish he received ineffective assistance of counsel. Defendant never disputed his knowledge of the dangers of taking Vicodin and driving. Indeed, he argued both at trial and on appeal that the subject matter of the evidence was irrelevant for this very reason. Thus, there was nothing prejudicial about the subject area of the complained of testimony, which is likely why the prosecutor’s questioning reasonably drew no objection from defense counsel. We cannot say counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms when he failed to object to the prosecutor’s question of whether defendant had been warned about the dangers.

Nor was defendant prejudiced by the prosecutor’s question of whether he had been warned about the dangers, since he was not disputing he had such knowledge. And it is at this point that defendant must establish prejudice, since he is claiming counsel was ineffective for not lodging a timely objection to this question at trial. Had defendant testified consistently with his prior statements, there would be no arguable prejudice at all.

Indeed, there was no arguable prejudice to defendant until he testified inconsistently with his prior statements--something we cannot determine from the appellate record that defense counsel knew he would do. But even if defense counsel could have known defendant would do so, and therefore, should have objected before defendant testified inconsistently, the impeachment evidence that was ultimately admitted had little prejudicial value. The trial court specifically limited the admitted evidence to the fact that defendant had made “sworn statements,” prior to trial, that he was warned of the dangers of taking Vicodin and driving by Dr. Sue and the pharmacist. The trial court did not allow the prosecutor to mention that the sworn statements were made in a prior trial or that defendant had been previously tried and/or convicted of driving under the influence of Soma and Vicodin.

Finally, defendant contends the trial court erred by not ruling the evidence of warnings to defendant of the dangers of taking Vicodin and driving was inadmissible pursuant to section 352. This claim is unavailing because he failed to object on this ground in the trial court. (§ 353 [timely and specific objection must be made in the trial court to preserve an evidentiary challenge for appellate review].)

Trial counsel’s statement, “I think this is so prejudicial I think that it goes beyond the scope of direct,” did not adequately raise a section 352 objection. Nor did his later argument that the evidence was irrelevant. (People v. Barnett (1998) 17 Cal.4th 1044, 1130 [objection based on relevancy is insufficient to preserve a section 352 objection for appellate review]; 3 Witkin, Cal. Evidence (4th ed. 2000) Presentation at Trial, §§ 375, 377-379, pp. 465-466, 468-471.)

In any event, the trial court did not rule on a section 352 objection. Thus, because counsel failed to obtain a ruling, any such objection was forfeited and not preserved for appeal. (People v. Hayes (1990) 52 Cal.3d 577, 618-619.)

II

In imposing the upper term sentence, the trial court found the following six factors in aggravation under rule 4.421 of the California Rules of Court: The crime involved great violence and great bodily injury; the victim was particularly vulnerable; defendant interfered with the judicial process by altering his story in a similar vein as dissuading a witness; defendant admitted to numerous violations of driving under the influence; and defendant was on probation for a prior driving under the influence conviction at the time of the current offense. The trial court found no factors in mitigation.

Defendant contends the trial court violated his right to a jury trial by imposing the upper term based on facts not admitted by him or found by a jury. We disagree.

Applying the Sixth and Fourteenth Amendments to the United States Constitution, the United States Supreme Court held in Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Id. at p. 490 [147 L.Ed.2d at p. 455].) For this purpose, the “statutory maximum” is the maximum sentence the trial court may impose based solely on the facts reflected in the jury verdict or admitted by the defendant. (Blakely, supra, 542 U.S. at p. 303 [159 L.Ed.2d at p. 413].)

In Cunningham v. California (2007) 549 ___ U.S. ___ [166 L.Ed.2d 856] (Cunningham), the United States Supreme Court held that under Blakely and other decisions, California’s determinate sentencing law “violates a defendant’s right to trial by jury safeguarded by the Sixth and Fourteenth Amendments” to the extent the law allows a judge to impose an upper-term sentence “based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant.” (Cunningham, at p. ___ [166 L.Ed.2d at p. 864], overruling People v. Black (2005) 35 Cal.4th 1238 on this point, vacated in Black v. California (2007) ___ U.S. ___ [167 L.Ed.2d 36].)

On remand from the United States Supreme Court, for reconsideration in light of Cunningham, the California Supreme Court recently held that “imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (People v. Black (2007) 41 Cal.4th 799, 816 (Black II).) The “prior conviction” exception “include[s] not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions.” (Id. at p. 819.)

Here, defendant admitted to having sustained a prior conviction for driving under the influence of drugs. The probation report reflects defendant had sustained two additional convictions for driving under the influence.3 The trial court’s reliance on the fact that defendant admitted to numerous violations of driving under the influence could be considered to be a finding of numerous prior convictions--a factor not required to be found by a jury under Blakely.

Because this aggravating factor made defendant eligible for the upper term, the trial court did not violate defendant’s right to a jury trial in imposing the upper term. (Black II, supra, 41 Cal.4th 799, 816.)

DISPOSITION

The judgment is affirmed.

SIMS , Acting P.J.

We concur:

HULL , J.

BUTZ , J.



1 Ariana Carlson and the victim, Nancy Carlson, are not related but have the same surname. To avoid confusion, we shall use their first names. No disrespect is intended.



2 Undesignated statutory references are to the Evidence Code.



3 Defendant admitted in his statement to the probation officer that he had “like thirteen DUI’s” over the years, but not all had resulted in convictions. Defendant had also sustained three additional convictions for violations of other provisions of the Vehicle Code.

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California DUI Attorney

Checkpoint update - Northern California DUI Attorney news

California DUI criminal defense attorney news

SANTA ROSA: POLICE TO CONDUCT DUI AND LICENSE CHECKPOINT FRIDAY

10/25/07

In an effort to reduce the number of collisions resulting from driving coupled with alcohol or drug use, the Santa Rosa Police Department is conducting a California DUI - Drunk Driving and license checkpoint Friday night.

This California DUI checkpoint will be located on the east side of town and take place during the evening hours.

The police department is not releasing further information regarding the time and location prior to the California DUI checkpoints.

Santa Rosa police continue to encourage motorists to report anyone believed to be California DUI - under the influence of alcohol while driving.

DUI with great bodily injury in California case

California DUI lawyers case

Filed 10/23/07 P. v. Kilpatrick CA4/3


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,
Plaintiff and Respondent,

v.

DOUGLAS KILPATRICK,

Defendant and Appellant.
G037563
(Super. Ct. No. 05HF1351)

O P I N I O N


Appeal from a judgment of the Superior Court of Orange County, Susanne S. Shaw, Judge. Affirmed.

Allison H. Ting, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, David Delgado-Rucci and Ronald A. Jakob, Deputy Attorneys General, for Plaintiff and Respondent.

Appellant was convicted of (1) driving under the influence of alcohol (DUI) and causing bodily injury, and (2) driving with a blood alcohol level of .08 percent or more and causing bodily injury. The jury also found he inflicted great bodily injury on the victim. While we agree with appellant that some of the jury instructions and verdict forms that were used in his trial were defective, we find no basis for reversal. We therefore affirm the judgment.

* * *

On the evening of April 12, 2005, Cynthia Hunter was driving on Pacific Coast Highway in Laguna Beach when she noticed appellant driving slightly ahead of her in the next lane. Appellant’s car drifted halfway into her lane, forcing Hunter to apply her brakes to avoid a collision. Appellant then drove completely into Hunter’s lane, forcing her to brake again.

Up ahead in that lane, another car was stopped at Table Rock Drive waiting for Amy Bainbridge and her friend to cross PCH at a marked crosswalk. Appellant swerved around that car and drove into the crosswalk without slowing down. His vehicle struck Bainbridge, causing her spinal injuries and partial paralysis.

Testing revealed that at the time of the collision, appellant’s blood alcohol level was between .096 and .10 percent. At trial, the defense admitted appellant was under the influence of alcohol at the time he plowed into Bainbridge. However, taking the stand in his own defense, appellant denied he violated any other traffic laws or otherwise drove in a negligent manner. He testified he was unaware of the crosswalk at Table Rock, and as he approached that intersection, he was forced to veer around the car that was stopped in front of him. At that point, it was too late for him to stop, and although he tried to steer around Bainbridge, he was unable to do so.

Appellant was charged in count 1 with DUI and causing bodily injury. (Veh. Code, § 23153, subd. (a).)1 In count 2, he was charged with driving with a blood alcohol level of .08 percent or more and causing bodily injury. (§ 23153, subd. (b).) With respect to both charges, the prosecution was required to prove not only that appellant drove while drinking in the manner alleged, but also that he concurrently committed an illegal act or neglected a legal duty in driving his vehicle and that such act or neglect proximately caused bodily injury to another. (§ 23153, subds. (a), (b).)

The prosecution alleged appellant was remiss in his driving in several respects, in that he: (1) drove too fast for the conditions (§ 22350); (2) failed to maintain a safe distance between vehicles (§ 21703); (3) failed to yield the right of way to a pedestrian in a crosswalk (§ 21950); (4) passed a vehicle that was stopped at a crosswalk (§ 21951); and (5) failed to use reasonable care in handling his vehicle.

The trial court instructed the jury that DUI and driving with a blood alcohol level of .08 percent or more were lesser included offenses of counts 1 and 2, respectively. (§ 23152, subds. (a), (b).) However, the verdict forms pertaining to these lesser offenses erroneously included the “causing bodily injury” element, an element that was only applicable to the greater offenses. Specifically, the verdict forms provided that appellant was guilty/not guilty of DUI “causing bodily injury[], a lesser offense necessarily included within the offense as charged in count 1” and “driving with a blood alcohol .08% or more causing bodily injury[], a lesser offense necessarily included within the offense as charged in count 2.” (Italics added and capitalization omitted.)

In addition to the substantive counts, the prosecution also alleged appellant personally inflicted great bodily injury on Bainbridge. (Pen. Code, § 12022.7, subd. (a).) With respect to that allegation, the prosecution had requested the jury be instructed that “[g]reat bodily injury means significant or substantial physical injury . . . that is greater than minor or moderate . . . .” (See CALCRIM No. 3160.) However, through apparent inadvertence, the trial court did not give this instruction or provide any substantive instructions on the great bodily injury allegation.

During deliberations, the jury sent the court a note saying it needed “clarification as to which charge is the greater count 1, or count 2.” The court told them, “Anything with injuries is the greater. The lesser is just simply driving under the influence of alcohol, okay? And the greater is count 1, which is driving under the influence of alcohol; count 2 with causing injury. And count 2, I mean, I think it’s pretty obvious. The lesser is just driving under the influence.”

With that, the jury resumed its deliberations and found appellant guilty of the charged offenses. The jury also found appellant personally inflicted great bodily injury on Bainbridge during the commission counts 1 and 2. After appellant admitted a prior conviction for DUI, the court sentenced him to probation on the condition he serve a year in jail. This appeal followed.

I

Appellant contends the defective verdict forms on the lesser included offenses, coupled with the court’s “convoluted answer” to the jury’s note, left the jury with an impermissible “all-or-nothing choice on the matter,” meaning he was either guilty of the charged offenses or nothing at all. Appellant argues this eviscerated instruction on the lesser offenses and violated his constitutional rights to a fair trial and due process. The Attorney General disagrees, contending the defective verdict forms were not prejudicial considering the record as a whole. We agree with the Attorney General.

As a preliminary matter, the Attorney General contends appellant waived his right to challenge the verdict forms by failing to object to them in the trial court.

(See People v. Toro (1989) 47 Cal.3d 966, 976, fn. 6 [“An objection to jury verdict forms is generally deemed waived if not raised in the trial court”].) However, because appellant raises the specter of ineffective assistance of counsel, and there could be no satisfactory explanation for counsel’s failure to object to the defective verdict forms, we will consider appellant’s claim. (See People v. Pope (1979) 23 Cal.3d 412, 426.)

“A verdict is to be given a reasonable intendment” (People v. Radil (1977) 76 Cal.App.3d 702, 710) and should be construed in light of the issues presented, the court’s instructions and the arguments of counsel. (Ibid.; People v. Mackabee (1989) 214 Cal.App.3d 1250, 1256.) The verdict “must be upheld when, if so construed, it expresses with reasonable certainty a finding supported by the evidence [citation].” (People v. Radil, supra, 76 Cal.App.3d at p. 710.)

The only disputed issue in this case was whether, in addition to drinking and driving, appellant drove in an illegal or negligent manner and thereby caused bodily injury to another. (§ 23153, subds. (a), (b).) The parties’ closing arguments were closely focused on this issue, and both sides emphasized the fact that causing bodily injury was a necessary component of the charged offenses. In addition, the court’s oral instructions properly explained that causing bodily injury was an element of the charged offenses, but not the lessers.

Having been so instructed and informed, the jury was understandably perplexed when the verdict forms on the lessers contained the causing bodily injury element. And when it sought clarification, the court’s response was by no means a model of clarity or completeness. But it did contain two accurate pieces of information, namely that “[a]nything with injuries is the greater,” and “simply driving under the influence of alcohol” is “the lesser.” Those both pointed the jury in the right direction, as had counsel and the court’s instructions.

This should have been done better. But the question before us is not whether the nail was driven with the skill we would expect of an expert carpenter, but whether it sufficed to hold the two boards together. We are satisfied it did. The argument of the attorneys, the formal instructions of the court, and the accurate if inartful description of the distinction between the greater and the lesser offenses provided by the court after the jury’s question make us confident the jury’s verdict was based on a correct understanding of the law.

It is also significant that the verdict forms for the charged offenses contained the “causing bodily injury” language. After the clerk of court read the verdict, the court asked the jurors if it represented their decision, i.e., did they find appellant caused bodily injury, as reflected in their verdict? Without exception, the jurors responded to this inquiry in the affirmative. They also found true the allegation that appellant inflicted great bodily injury during the commission of counts 1 and 2. Despite the lack of instruction on this allegation, an issue we discuss below, this finding shows the jury believed appellant caused bodily injury to the victim.

Considering the record as a whole, we are convinced the jury’s verdict expresses with reasonable certainty a finding of guilt on the charged offenses. We therefore uphold the verdict as to counts 1 and 2. (People v. Radil, supra, 76 Cal.App.3d at p. 710.)

II

Appellant also challenges the jury’s true finding on the great bodily injury enhancement. Specifically, he contends the finding must be reversed because the trial court did not offer any substantive instructions regarding the enhancement.

The Attorney General argues that, despite the court’s failure to instruct on the enhancement, no error occurred because the substance of the enhancement was conveyed to the jury in other instructions and the prosecutor’s closing argument. However, at no point did the court instruct the jury on the statutory definition of great bodily injury, to wit, “a significant or substantial physical injury.” (Pen. Code, § 12022.7, subd. (f).) And although the prosecutor alluded to this definition in his closing argument, this did not make up for the court’s instructional oversight: “While we have no trouble utilizing the argument of counsel to help clear up ambiguities in instructions given, there is no authority which permits us to use argument as a substitute for instructions that should have been given.” (People v. Miller (1996) 46 Cal.App.4th 412, 426, fn. 6.) Indeed, when, as here, the court fails to instruct on an enhancement that increases the penalty for the underlying crimes beyond the prescribed statutory maximum, such failure constitutes federal constitutional error. (People v. Sengpadychith (2001) 26 Cal.4th 316, 320, 326.)

Still, the error will be deemed harmless if it can be shown beyond a reasonable doubt that it did not contribute to the jury’s verdict. (People v. Sengpadychith, supra, 26 Cal.4th at pp. 320, 326.) The instruction omitted here would have told the jurors, “If you find the defendant guilty of the crimes charged in counts 1 and 2, you must then decide whether for each crime the People have proved the additional allegation that the defendant personally inflicted great bodily injury on [Bainbridge] during the commission of that crime. Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm. The People have the burden of proving each allegation beyond a reasonable doubt. If the People have not met this burden, you must find that the allegation has not been proved.” (See CALCRIM No. 3160.)

Noticeably lacking from that instruction, because it need not be proved, is any element of causation or intent. If, as was the case here, the jury found the underlying crime had been committed, the only thing the instruction would have told them was to decide whether in committing the crime, the defendant inflicted an injury that was not “minor or moderate,” but rather “significant or substantial.” In this case, the evidence that appellant inflicted great bodily injury on Bainbridge was overwhelming and undisputed. Bainbridge’s treating physician testified that as a result of the collision, her third lumbar vertebrae in her lower back was “blown apart,” causing her paralysis and extensive nerve damage. She has had to undergo two reconstructive back surgeries, and her rehabilitation has been hampered by chronic pain. At the time of trial, she was able to walk but could not maintain one position for a long period of time, and her doctor described her as being “disabled.” There is simply no definition of the terms by which these injuries could be anything but “significant or substantial.”

The defense did not challenge this testimony or question the extent of Bainbridge’s injuries. Nor did it attempt to argue that her injuries were anything other than significant or substantial. Rather, defense counsel avoided any mention of the great bodily injury issue in her closing argument to the jury. Quite plainly, the record establishes great bodily injury as a matter of law with no contrary evidence or argument on the issue, and that weighs heavily in favor of a finding of harmless error. (See Neder v. United States (1999) 527 U.S. 1, 19 [failure to instruct on element of offense may be considered harmless beyond a reasonable doubt where the record is devoid of evidence that “could rationally lead to a contrary finding with respect to the omitted element”]; People v. Flood (1998) 18 Cal.4th 470, 504-507 [failure to instruct on element of offense may be considered harmless beyond a reasonable doubt if evidence of element is overwhelming, uncontradicted and the issue is effectively conceded by the defense].)

Moreover, the prosecutor informed the jury that great bodily injury means just what the Legislature says it does. He explained the term means “the injury is significant or substantial. It’s an injury that is greater than minor or moderate harm.” As noted above, this does not constitute a legally sufficient substitute for the court’s failure to instruct on the meaning of great bodily injury. However, the fact the prosecutor correctly defined this concept ensured the jury was aware of the proper legal standard for the enhancement allegation, which is a factor in the harmless error analysis. (See People v. Champion (1995) 9 Cal.4th 879, 949; People v. Visciotti (1992) 2 Cal.4th 1, 58-59; People v. Murtishaw (1989) 48 Cal.3d 1001, 1030.)

All things considered, we are convinced beyond a reasonable doubt the court’s failure to instruct on the great bodily injury enhancement allegation did not contribute to the jury’s verdict. There simply was no question the victim here suffered great bodily injury and the court’s instructional error could not have had any effect whatsoever. What issues there were in the case revolved not around the enhancement, but the substantive charges. If appellant was guilty of the charged felonies, there was no escape from the great bodily injury enhancement. We therefore uphold the jury’s true findings as to that allegation.

III

Lastly, appellant contends the court erred in denying his request to instruct the jury on the defense of accident or misfortune. (CALCRIM No. 3404.) He doesn’t claim his drinking and driving was an accident; rather, he argues he committed the alleged driving violations by sheer accident in that they were “the product of his being startled by the sudden braking action of the car ahead of him[.]”

The accident defense is based on the theory the defendant acted “without forming the mental state necessary to make his actions a crime. [Citation.]” (People v. Gonzales (1999) 74 Cal.App.4th 382, 390.) It suggests the defendant engaged in some accidental conduct by which the victim was injured. (See People v. Bohana (2000) 84 Cal.App.4th 360, 370-371.) In this case, it was no accident that appellant drove in the highly dangerous manner that led to Bainbridge’s injuries. Indeed, the evidence clearly indicates he did so of his own volition. Appellant may not have intended to hit Bainbridge — and in that sense the collision may be accurately described in colloquial terms as an “accident” — but the intent to injure is not an element of the crimes for which he was convicted. Rather, they simply require, in addition to drinking and driving, the commission of a driving violation that proximately causes injury to another. Since there is no evidence appellant accidentally violated the traffic laws at issue here, the accident defense did not apply and the trial court was not required to instruct on it.2

The judgment is affirmed.

BEDSWORTH, ACTING P. J.

WE CONCUR:

O’LEARY, J.

ARONSON, J.



1 Unless noted otherwise, all further statutory references are to the Vehicle Code.



2 We reject appellant’s claim the combined effect of the court’s errors requires reversal. The verdict miscue and the instructional error on the great bodily injury allegation do not, even when considered together, undermine our confidence in the verdict. No due process or fair trial violation has been shown.

Drunk Driving for teens not a good idea

Drunk Driving criminal lawyer news - California DUI attorney info

BAKERSFIELD California

Anti - drunk driving idea the most powerful program:

On Friday, hundreds of students at Centennial High School watched "A Life Interrupted."

When it comes to educating students about the consequences of drinking and driving, this program tells it like it is.

The shock treatment production is part of an on-going effort to help keep our streets safe.

"It was from someone behind them that had been drinking that had a very high level blood alcohol, and he ran into them about 70 miles an hour and never applied his brakes," said "A Life Interrupted" Founder Nancy Chaffin.

It was a head-turning display at CHS in northwest Bakersfield--The remains of a car that burst into flames from a drunk driving accident that took the lives of two local teens, all part of a no-nonsense program called "A Life Interrupted."

Organizers of this program have teamed up with Bakersfield Police and State Farm Insurance to urge local teens to stay safe.

"These are some of your newest drivers here today: the freshmen, sophomores," said Greg Sherlock, State Farm Insurance. "When they're 15-and-a-half, they have a provisional permit, and that means they're going to be on the roads."

Chaffin lost her son two years ago after he climbed into the car with a drunk driver.

Out of that tragedy came this program in hopes young teens who are driving can learn from her loss.

"It's his love that keeps me out here, and it's very important," said Chaffin.

BPD used pictures and 911 calls from the scene of DUI accidents involving teens to drive home the dangers of drinking and driving.

"Why would you do that? Why would you make that bad of a decision like that?" said 15-year-old Chelsea Mirelez. "Some people, they're not thinking. They're thinking, 'Oh, we're just going to go out for a few seconds. Nothing bad's going to happen.'"

Preferential DUI Treatment for Sheriff's Employee?

California DUI Lawyer - drunk driving attorney news

After conducting an FST evaluation of the driver's sobriety, an off-duty Sacramento County Sheriff's Department employee was not arrested, but was given a ride home by another sober driver.

The Roseville Police Department investigated a DUI (driving under the influence) case against the driver and forwarded the evidence it gathered to the Placer County District Attorney's Office for evaluation of possible charges.

The district attorney has filed charges of driving under the influence and driving under the influence with a blood alcohol level of .08 or greater against Sacramento County Sheriff's Sgt. Chris Guerrero, 41, with a scheduled arraignment date of Nov. 13.

The Roseville Police Department is conducting an internal affairs investigation in the incident and reviewing its policies related to handling of DUI stops. All of our employees are expected to carry out their jobs with integrity.

The department remains committed to fair and impartial law enforcement, including diligent enforcement of DUI laws for the protection of the community.

3 prior Vehicular Manslaughter - DUI 's not strikes

California DUI criminal defense attorney news

Filed 10/19/07 P. v. Kurek CA6

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,
Plaintiff and Appellant,

v.

BRYCE STEVEN KUREK,

Defendant and Respondent.
H030104
(Santa Cruz County

Super. Ct. No. F11216)


The People appeal from a judgment committing defendant Bryce Steven Kurek to state prison for four years on his conviction by no contest plea to driving under the influence of alcohol and/or drugs with four prior qualifying convictions. (Veh. Code, §§ 23152, subds. (a) & (b), 23550, 23550.5.) The People contend that the sentence is unlawful because the trial court erred in ruling that defendant’s three prior gross vehicular manslaughter while intoxicated convictions (Pen. Code, § 191.5)1 are not strikes (§ 667, subds. (b)–(i)). As we find that the People failed to carry their burden of proving that defendant’s prior convictions qualified as strikes, we will affirm the judgment.

BACKGROUND

At approximately 1:25 a.m. on March 30, 2005, a California Highway Patrol officer observed defendant driving a vehicle approximately 40 miles per hour in a 25-mile-per-hour zone on 7th Avenue in Santa Cruz. The officer instituted a traffic stop, and detected a strong odor of alcohol emitting from defendant’s vehicle through the open driver’s side window. The officer also noticed that defendant’s eyes were very red and that his speech was slurred. The officer administered field sobriety tests to defendant, determined that defendant was under the influence of alcohol, and placed defendant under arrest. Inside defendant’s left front pant’s pocket the officer found two boxes containing marijuana and a glass pipe. Defendant was transported to a hospital where a breath analyzer test was conducted. Defendant’s blood-alcohol content was approximately .11.2

Defendant was charged by information filed August 9, 2005, with two counts of driving under the influence of alcohol and/or drugs (Veh. Code, § 23152, subds. (a) & (b); counts 1 & 2), and misdemeanor possession of marijuana while driving (Veh. Code, § 23222, subd. (b); count 3). The information further alleged that defendant had three prior convictions under section 191.5, and one prior conviction under Vehicle Code section 23153, subdivisions (a) and (b) (Veh. Code, §§ 23550, 23550.5); that these four prior convictions constituted strikes (§ 667, subds. (b)–(i)); and that defendant had served a prior prison term (§ 667.5, subd. (b)).

On January 10, 2006, defendant entered a negotiated no contest plea to the new charges and admitted three prior felony convictions for gross vehicular manslaughter while intoxicated, one prior felony conviction for driving under the influence causing injury or death, and the prior prison term allegation. Conditions of the plea were that the court was to determine whether the prior convictions constituted strikes and that, regardless of the court’s determination, the prosecutor would move to strike all but one of the alleged prior convictions. After accepting defendant’s plea, the court proceeded with the trial on the priors.

The only evidence the People submitted in support of the allegation that defendant’s four prior convictions constituted strikes was exhibit 1. The exhibit comprises four documents: (1) An abstract of judgment dated November 6, 1997, indicating that defendant was sentenced to eight years in state prison for his conviction by plea to three counts of gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a)), two counts of which had one-year enhancements for causing death or bodily injury to more than one victim (former Veh. Code, § 23182), and two counts of driving under the influence causing bodily injury (Veh. Code, § 23153, subds. (a) & (b)). (2) A minute order for March 3, 1998, indicating that the court denied a motion to recall the sentence under section 1170, subdivision (d). (3) A minute order for the November 6, 1997 sentencing hearing. (4) A minute order for August 21, 1997, indicating that defendant was charged by grand jury indictment with three felony counts of violating section 191.5 (counts 1 – 3), a felony count of violating Vehicle Code section 23153, subdivision (a) (count 4), and a felony count of violating Vehicle Code section 23153, subdivision (b) (count 5); that defendant pleaded guilty as charged to counts 1 through 5, and admitted all allegations; and that it was an “open plea.”

The prosecutor argued that the documents, together with defendant’s admissions to the charged priors, proved that defendant’s prior convictions constituted serious felonies and therefore strikes. “Penal Code section 1192.7 [subdivision] (c)[](8) . . . describes as a serious felony prior any felony wherein the defendant inflicts great bodily injury, that is a strike prior, because it’s a serious felony prior. [¶] Similarly pursuant to Penal Code section 1192.7[, subdivision] (c)[](23), a serious felony prior is defined as any felony wherein the defendant personally used a deadly weapon and the case law is very clear that cars are, in fact, a deadly weapon. [¶] . . . So based on those two sections of the Penal Code, in fact, these priors do constitute serious felony priors, and therefore strike priors.”

Defendant argued that a “violation of [Penal] Code section 191.5 is not a strike unless [he] personally inflicted great bodily injury on a non-accomplice. The proof provided in the documents before the Court are solely, completely and totally lacking on any facts upon which the Court could make a finding of personal infliction of great bodily injury on a non-accomplice.” “Your Honor, this is the trial of the facts, and the fact is that [the prosecutor] hasn’t presented anything – any facts from which the Court could make – could even speculate as to whether or not there was proved personal infliction of great bodily injury on a non accomplice.” “There are no facts before this Court wherein you can make a decision that the decedents in this case were accomplices or not. There are no facts. [¶] And [section] 191.5 standing alone is not a strike, and that is all the Court has before it right now.”

On January 12, 2006, the court found that defendant’s prior convictions did not constitute strikes. “In following the law, the Court finds the People have failed to meet the burden of proof regarding the strikes.”

The prosecutor advised the court that she was prepared to retry the prior allegations later that day. The court asked, “Hypothetically, what would you submit as evidence.” The prosecutor responded that she would submit the same documents as before, and ask the court to take judicial notice of the probation report. The court stated it had reviewed the probation report in anticipation of the hearing, and defendant’s admissions to the probation officer as stated in the report seemed to indicate that some, if not all, of the victims in the case could be accomplices. “Mr. Kurek’s statement is that – one statement that is somewhat telling, ‘They were asking me to go faster,’ is the one I’m referring to. It doesn’t tell me who was asking him to go faster, but it seems multiple individuals.” “[T]hat statement seems to indicate that some of the victims were accomplices. [¶] So, if I were to go that route . . . I think I would still find that the victims were by law possibly accomplices. Again, the People would not have met their burden.”

On February 17, 2006, the People filed supplemental points and authorities requesting that the court reinstate the strike priors. The People contended that, as a matter of law, the deceased victims in the prior case could not be accomplices to their own vehicular manslaughter because they were not liable for prosecution for gross vehicular manslaughter resulting in their own death and their conduct did not result in the deaths of others. (See §§ 31, 1111.) The court denied the request on February 24, 2006. “Well, I’ve considered the case, and my decision to strike the strikes remains.”

On April 4, 2006, the court sentenced defendant to four years in state prison. The People filed a notice of appeal on April 17, 2006.

DISCUSSION

“An appeal may be taken by the people from any of the following: [¶] . . . [¶] (10) The imposition of an unlawful sentence, . . . As used in this paragraph, ‘unlawful sentence’ means the imposition of a sentence not authorized by law or the imposition of a sentence based upon an unlawful order of the court which strikes or otherwise modifies the effect of an enhancement or prior conviction.” (§ 1238, subd. (a)(10).) “[T]he People may appeal from the judgment pursuant to section 1238, subdivision (a)(10) on the grounds that defendant’s sentence is unlawful because the trial court erred in ruling that [an] alleged prior conviction was not a strike.” (People v. Trujillo (2006) 40 Cal.4th 165, 169 (Trujillo).)

In this case, defendant admitted that he suffered felony convictions in 1997 for three counts of violating section 191.5, gross vehicular manslaughter while intoxicated, and one count of violating Vehicle Code section 23153, driving under the influence causing injury. He requested a court trial on the issue of whether these priors constituted serious or violent felonies, and therefore strikes. Neither gross vehicular manslaughter nor driving under the influence is listed as a serious felony under section 1192.7, subdivision (c), or as a violent felony under section 667.5, subdivision (c). However, the People contend on appeal, as they did below, that the gross vehicular manslaughter offenses are serious felonies under section 1192.7, subdivision (c)(8). Under that subdivision, an offense is a serious felony if the defendant “personally inflict[ed] great bodily injury on any person, other than an accomplice . . . .” (Ibid.)

This court has previously concluded “that by virtue of subdivision (c)(8) of Penal Code section 1192.7, . . . gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5) . . . will be a serious felony if in the commission of the crime the defendant personally inflicts great bodily injury on any person other than an accomplice. [Citation.]” (People v. Gonzales (1994) 29 Cal.App.4th 1684, 1694 (Gonzales).) “In Proposition 8 the electorate saw fit unambiguously to classify as a serious felony any felony in the commission of which the defendant inflicts great bodily injury on anyone other than an accomplice.” (Ibid.) The Legislature codified this holding in section 1192.8, subdivision (a), which states in pertinent part: “For purposes of subdivision (c) of Section 1192.7, ‘serious felony’ also means any violation of Section 191.5, . . . when [the] offense[] involve[s] the personal infliction of great bodily injury on any person other than an accomplice, . . .” (See § 1192.8, subd. (b).)

While gross vehicular manslaughter will often constitute a serious felony and thus a strike, this is not always the case. For instance, a passenger in a car could be convicted of gross vehicular manslaughter based on evidence that the passenger aided and abetted the driver in a speed contest that resulted in a death, and such a conviction would not constitute a strike because, as an aider and abettor, the passenger did not personally inflict great bodily injury on the victim. (§§ 1192.7, subd. (c)(8); 1192.8, subd. (a); cf. People v. Rodriguez (1998) 17 Cal.4th 253, 161-262; People v. Madison (1966) 242 Cal.App.2d 820, 827.) Thus, in order to constitute a prior serious felony and a strike, the prosecution had to prove beyond a reasonable doubt that the defendant was convicted under section 191.5 as the driver of the vehicle involved in the offense.

It is also the prosecution’s burden to prove beyond a reasonable doubt that the defendant personally inflicted great bodily injury on a person other than an accomplice. (People v. Tenner (1993) 6 Cal.4th 559, 566; People v. Henley (1999) 72 Cal.App.4th 555, 564.) Thus, the prosecution had to present evidence proving that defendant was the driver of the vehicle, that he personally inflicted great bodily injury on the victims, and that the victims were not accomplices. At the hearing on the priors in this case, the prosecution introduced the abstract of judgment and the minute order of defendant’s plea to prove that the priors defendant admitted were serious felonies.3 The only evidence the prosecution introduced identifying the actual conduct of defendant that led to the charges and plea was the fact that the documents indicated that defendant pleaded guilty to driving under the influence causing injury at the same time he pleaded guilty to three counts of gross vehicular manslaughter. The prosecution did not submit copies of the grand jury indictment, the transcript of the grand jury proceedings, or the transcript of the hearing during which defendant entered his change of plea. Accordingly, based on the scant evidence presented by the People, the trial court found that the People “failed to meet the burden of proof regarding the strikes,” and that “the victims were by law possibly accomplices.”

“[A] reviewing court will not alter, or hold unsupported, a [trier of fact’s] findings merely because it might reasonably draw an inference different from the one the [trier of fact] drew.” (People v. Williams (1970) 11 Cal.App.3d 1156, 1162.) “ ‘ “If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.” ’ ” (People v. Bean (1988) 46 Cal.3d 919, 932-933.)

The trial court found in part that the People failed to carry their burden of proving beyond a reasonable doubt that the victims of defendant’s gross vehicular manslaughter offense were not accomplices. “All persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission, and all persons . . . who, by threats, menaces, command, or coercion, compel another to commit any crime, are principals in any crime so committed.” (§ 31.) An accomplice is a person “who is liable to prosecution for the identical offense charged against the defendant . . . .” (§ 1111.) Therefore, a principal is someone who is liable for punishment for committing a crime, and an accomplice is someone who “could be charged as a principal.” (1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Introduction to Crimes, § 77, p. 123.) Accordingly, both the driver and a passenger in a vehicle could be liable for prosecution for gross vehicular manslaughter if the passenger aided and abetted that offense, or another offense committed by the driver of which the victim’s death was the natural and probable consequence. (See People v. Prettyman (1996) 14 Cal.4th 248, 260-262; People v. Croy (1985) 41 Cal.3d 1, 12, fn. 5; People v. Beeman (1984) 35 Cal.3d 547, 560.)

We agree with the People that a deceased passenger who is the victim of a vehicular manslaughter cannot as a matter of law be an accomplice to his or her own death. The victim of a manslaughter offense is not “liable to prosecution”

(§ 1111) for manslaughter because it is not illegal to kill oneself. (Cf. In re Ryan N. (2001) 92 Cal.App.4th 1359, 1373 [suicide is not a crime]; see also People v. Antick (1975) 15 Cal.3d 79, 91.) Hence, as to each individual manslaughter offense, the victim of that offense could not have been an accomplice to the offense because he or she would not have been liable to prosecution for his or her own death. (But see People v. Flores (2005) 129 Cal.App.4th 174, 182 [discussing the accomplice exception in § 12022.53, subd. (d)].)

The People further argue that vehicular manslaughter is always a serious felony as a matter of law when the defendant is the driver and the victim is a single passenger in the vehicle, because the victim cannot as a matter of law be an accomplice to his or her own death. Thus, when there are multiple passengers and multiple deaths, all of the resulting vehicular manslaughter convictions must also be serious felonies in order to avoid an unintended absurdity in the law. Accordingly, the People’s argument continues, because the prosecution proved that defendant was the driver of the vehicle, the prosecution proved that defendant’s convictions under section 191.5 constitute serious felonies and strikes no matter who the victims were.

We reject the People’s argument because we disagree with the underlying assumption that the prosecution proved that defendant was the driver of the vehicle and that he personally inflicted great bodily injury. Just as a passenger in a car can be convicted of vehicular manslaughter as an aider and abettor, a passenger in a car can also be convicted of driving under the influence as an aider and abettor. (Cf. People v. Verlinde (2002) 100 Cal.App.4th 1146, 1160-1161; In re Queen T. (1993) 14 Cal.App.4th 1143, 1144-1145.) None of the documents submitted by the prosecution conclusively eliminated the possibility that defendant was convicted of driving under the influence and vehicular manslaughter as an aider and abettor. As a result, the documents submitted by the prosecution did not preclude the trial court from entertaining a reasonable doubt that defendant was the driver and that he personally inflicted great bodily injury on the vehicular manslaughter victims.

This is not to say that the evidence produced by the prosecution could not have supported an inference that defendant was the driver. However, it is for the trier of fact, here the trial court, to decide whether an inference has been established beyond a reasonable doubt. (People v. Small (1988) 205 Cal.App.3d 319, 325; People v. Autry (1995) 37 Cal.App.4th 351, 358.) As the record and reasonable inferences therefrom justify the trier of fact’s findings, reversal is not warranted. (People v. Bean, supra, 46 Cal.3d at pp. 932-933.) Here, the trial court could have concluded, and did conclude, that an inference that defendant was the driver and that he personally inflicted great bodily injury on any person other than an accomplice had not been established by the prosecution beyond a reasonable doubt when the prosecutor relied solely on an abstract of judgment, which showed nothing more than the bare convictions.

The prosecution bore the burden of proving its contention below that defendant had been the driver and that he personally inflicted great bodily injury on persons other than accomplices. The failure by defendant to submit evidence or argument that he was not the driver did not lessen the prosecution’s burden of proof or obligate the trial court to rule in the prosecution’s favor. In this case, the documents presented by the prosecution and properly considered by the trial court did not establish beyond a reasonable doubt that defendant was the driver of the vehicle and that he personally inflicted great bodily injury on any person other than an accomplice. Thus, the People failed to carry their burden of proving that defendant’s three prior gross vehicular manslaughter while intoxicated convictions qualified as strikes.

DISPOSITION

The judgment is affirmed.

_______________________________________________________

Bamattre-Manoukian, ACTING P.J.

WE CONCUR:

__________________________

MIHARA, J.

_________________________

duffy, J.



1 Further statutory references are to the Penal Code unless otherwise specified.



2 The facts underlying defendant’s conviction are taken from the probation report.



3 “[W]e conclude that a defendant’s statements, made after a defendant’s plea of guilty has been accepted, that appear in a probation report prepared after the guilty plea has been accepted are not part of the record of the prior conviction, because such statements do not ‘reflect[] the facts of the offense for which the defendant was convicted.’ [Citation.]” (Trujillo, supra, 40 Cal.4th at p. 179.) Accordingly, this court may not “consider the statement attributed to defendant in the probation officer’s report in determining whether defendant had suffered a prior conviction for a serious felony as defined in section 1192.7, subdivision (c)[(8)].” (Id. at p. 175.) In their supplemental brief, the People state that they “have not attempted to rely on the probation report to prove the strike nature of the prior convictions.”

Victim Restitution for California Drunk Driving

California DUI criminal defense lawyers news


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,
Plaintiff and Respondent,

v.

RUTH MARIBEL HERNANDEZ,

Defendant and Appellant.
F051188
(Super. Ct. No. MF43167)

OPINION


THE COURT†

APPEAL from a judgment of the Superior Court of Merced County. Glenn Ritchey and Brian L. McCabe, Judges.‡

Derek K. Kowata, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

-ooOoo-

FACTS AND PROCEEDINGS

Appellant, Ruth Maribel Hernandez, waived her rights pursuant to Boykin/Tahl3 and admitted allegations in a criminal complaint that she drove a vehicle with a blood alcohol level of at least .08 percent, causing injury, and running a red light (Veh. Code, § 23153, subd. (b), count two), committed a felonious hit and run (Veh. Code, § 20001, count three), and drove a vehicle with a suspended license (Veh. Code, § 14601.2, subd. (a), count five).4 Count two further alleged that Hernandez had two prior driving while under the influence convictions within the prior seven years.

On June 1, 2006, the court carefully advised Hernandez of the consequences of her plea, including the maximum prison term she faced.5 The court completely advised Hernandez of her constitutional rights. The parties stipulated to, and the court found, a factual basis for the plea.6

At sentencing on August 7, 2006, the court denied probation and sentenced Hernandez to the midterm of three years on count two and a consecutive term of eight months on count three. The court awarded custody credits of 207 days. The defendant was ordered to pay a restitution fine of $600. (Pen. Code, § 1202.4, subd. (b).)7 Without objection, the court imposed direct victim restitution of $19,194.02. (§ 1202.4, subd. (f).)

Defense counsel filed a motion requesting the trial court to recall its sentence on August 10, 2006. Counsel contended there was no discussion or argument concerning whether Hernandez should receive the low term instead of the midterm. Counsel also contended there was no argument at the sentencing hearing concerning whether the two felony counts should have been made concurrent rather than consecutive. Counsel noted the trial court also made a comment that the two sides were far apart and there seemed to be no middle ground, such as a suspended sentence.

On September 6, 2006, the trial court heard the Hernandez’s request to recall the sentence. Defense counsel argued that this was Hernandez’s first felony conviction, she was not tried on probation before her last conviction, and her son had just died. Counsel argued Hernandez could be placed on 90-day observation and that even if sentenced to prison, she could be given a concurrent sentence. Counsel argued there were no aggravating factors. Counsel did not address the two restitution fines.

The court reviewed Hernandez’s arguments and the facts of the case, including her flight from the scene. The court noted that Hernandez told the probation officer she was innocent and denied driving the vehicle. The court found Hernandez was never promised probation and had failed to take responsibility for her conduct. The court found that each felony count involved separate criminal intent, justifying consecutive sentences. The court believed the factors in aggravation outweighed any mitigating factors, justifying an upper term on count two. The court noted that it was limited to the midterm under the terms of the plea agreement. As aggravating factors, the court found the crime involved great bodily harm, Hernandez’s prior convictions as an adult are numerous and of increasing seriousness, and her prior performance on probation was unsatisfactory. The court denied Hernandez’s request to recall her sentence.

Hernandez’s appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, raises no issues, and requests this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel indicating that Hernandez was advised she could file her own brief with this court. By letter on May 15, 2007, we invited Hernandez to submit additional briefing. To date she has not done so.

DISCUSSION

We initially note that Hernandez failed to obtain a certificate of probable cause from the trial court’s initial pronouncement of judgment. We therefore cannot review any potential infirmities concerning the validity of the underlying no contest plea. (People v. Mendez (1999) 19 Cal.4th 1084; People v. Panizzon (1996) 13 Cal.4th 68.) We note, however, that there are no obvious errors in Hernandez’s change of plea hearing. Hernandez was fully advised of the consequences of her plea and her constitutional rights. She bargained for and received the lid on her sentence of three years eight months.8

Hernandez’s victim restitution fine was not subject to plea negotiations because the interested party, the victim, is neither the defendant nor the prosecutor. In contrast to plea negotiations over a restitution fine, “victim restitution is mandated by both the Constitution and section 1202.4, and a sentence imposed without such an award is invalid. [Citation.] Section 1202.4 requires ‘full restitution.’ An order providing less is similarly invalid. [Citation.]” (People v. Bernal (2002) 101 Cal.App.4th 155, 164-165.) Victim restitution is not a proper subject for plea bargains. (People v. Valdez (1994) 24 Cal.App.4th 1194, 1203.) “The terms of [a defendant’s] plea agreement do not circumscribe the mandatory duty of the trial court to order appellant to pay victim restitution. [Citation.]” (Ibid.) “The Legislature left no discretion or authority with the trial court or the prosecution to bargain away the victim’s constitutional and statutory right to restitution. As such, it cannot properly be the subject of plea negotiations.” (Ibid.) Furthermore, Hernandez did not raise the issue of the amount of direct victim restitution during her sentencing hearing or her hearing to request recall of her sentence.

According to the probation report, one victim suffered medical expenses of $7,416.70. The car insurance company paid the owner of the car $9,389.22 and the owner paid $1,388.10 in car rental fees. These sums total $18,194.02. The probation report set forth a total of $19,194.02, the amount awarded by the trial court. This appears to be computational error in both the probation report and the trial court’s award of direct victim restitution.

We notified the parties pursuant to Government Code section 68081 of this error and offered them an opportunity to submit briefs on this point. To date, they have not done so. We find there is a mathematical, or clerical, error in the amount of direct victim restitution that the amount of direct victim restitution should be reduced to $18,194.02.

DISPOSITION

We order the amount of direct victim restitution reduced to $18,194.02. On remand, the trial court shall amend the abstract of judgment reflecting this change and forward it to the appropriate authorities. The judgment is otherwise affirmed.



† Before Harris, Acting P.J., Levy, J., Gomes, J.



‡ Judge Ritchey presided over appellant’s change of plea hearing. Judge McCabe sentenced appellant and ruled on her request to recall her sentence.



3 Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.



4 Prior to entering her plea, Hernandez waived her right to a preliminary hearing.



5 Hernandez also executed a felony advisement, waiver of rights, and plea form (form). Hernandez agreed to a maximum sentence of three years eight months. Hernandez had a translator throughout the proceedings. At the end of the form, a translator declared that a true translation of the form was made in its entirety to the defendant in a language she understood.



6 The police report indicated that a witness named Alonso stated he was traveling northbound and stopped at a red light. Just as the light turned green, Alonso began to drive forward into the intersection when he saw Hernandez driving a Ford Tempo at high speed westbound. Hernandez failed to slow down for the red light and collided with a small blue vehicle. Two females staggered out of the blue vehicle. The females appeared to be stumbling and were dazed. Hernandez left the scene on foot, eventually running away. Hernandez was found by investigating officers and identified by Alonso. Hernandez did not have a valid driver’s license. Her blood alcohol level was tested at .16 percent. According to the probation report, one victim suffered medical expenses of $7,416.70. The car insurance company paid the owner of the car $9,389.22 and the owner paid $1,388.10 in car rental fees.



7 Unless otherwise noted, all further statutory references are to the Penal Code.



8 The trial court noted during the hearing on Hernandez’s request to recall her sentence that count two, running a red light while intoxicated, and count three, felonious hit and run, involved separate criminal objectives. Hernandez did not have to flee the scene in violation of Vehicle Code section 20001 to accomplish her violation of Vehicle Code section 23153, subdivision (b). Where a defendant commits multiple criminal acts with separate objectives and the acts are not merely incidental to each other, section 654 does not limit multiple punishment. (People v. Martin (2005) 133 Cal.App.4th 776, 781.)

new San Diego Drunk Driving Attorney .net website

The San Diego County DUI Law Center Announces its New Web Site Launch, with a Sleek New Look and Comprehensive Resource Center for California and San Diego DUI Law

San Diego Criminal Defense Attorney Rick Mueller, sponsor of the San Diego DUI Lawyer Center, is pleased to provide a new center for DUI information at: http://www.SanDiegoDrunkDrivingAttorney.net .

San Diego, California (PRWEB) October 19, 2007

The new design for the California DUI Lawyer web site provides San Diego and California drivers access to many DUI resources, such as breath-test defenses, blood-test defenses, DUI expungement, local courts to attend, DMV information, out-of-state DUI, and many other DUI FAQs.

The California DUI web site also offers access to a San Diego County specialist who can offer support, addresses what to do if one receives a DUI while on military property, and also what to expect if one receives a DUI while boating. San Diego/California-specific penalties and useful tips are also obtainable.

Attorney Rick Mueller addresses important DUI news and industry trends in his California DUI Attorney Blog. This comprehensive discussion provides a portal for users to learn more about drunk-driving arrests, as well as submit their questions or concerns regarding DUI laws. Blog readers may also contact Rick Mueller through the web site's free DUI survey.

Rick Mueller is known as a "DMV Guru" and speaks in numerous seminars on the topic of San Diego DUI Law. Rick Mueller is recognized as a contributor to the California Drunk Driving Law book, and is a Specialist Member of the California DUI Attorneys Association.

Manslaughter DUI in California, Santa Barbara area

California DUI criminal defense lawyers news

The two women killed in Sunday’s alleged drunk driving accident in Montecito were identified as Sara Elizabeth Pezzimenti and Kelly Marie Ruiz.

According to a press release from the California Highway Patrol, the Santa Barbara Coroner’s Dept. confirmed yesterday morning that the families of both women were notified of their deaths. Pezzimenti, 21, was a resident of Palo Alto, and Ruiz, 26, was a resident of Santa Clara.

Beau Robertson, also of Palo Alto, was the driver of the Chevrolet Camaro that plunged off the San Ysidro overpass onto southbound Highway 101 at approximately 2:15 a.m. Sunday. The vehicle landed on its right side, where Pezzimenti and Ruiz were seated. Both women were pronounced dead at the scene.

At the time of the incident, authorities alleged that Robertson was California DUI - driving under the influence of alcohol. The cause of the crash was attributed to driving while intoxicated.

Robertson, 29, was transported to Santa Barbara Cottage Hospital after the crash with life-threatening injuries. According to the press release, Robertson remains in the intensive care unit but he is in stable condition and his injuries are no longer considered life threatening.

When Robertson is released from the hospital, he faces two felony counts for alleged driving under the influence and gross vehicular manslaughter.

Immediately after the Camaro landed on Highway 101, a Honda carrying a family of five hit the vehicle. At the time of the incident, the driver of the Honda, 33-year-old Marina De Alfaro Duarte of Ventura, was transported to Cottage Hospital with minor injuries. Her 11-year-old daughter, Yurithzy Alfaro, and 8-year-old nephew, Pilar Gomez, were also taken to the hospital for complaints of pain. Her 34-year-old husband, Enrique Alfaro, and 14-year-old son, Daniel Alfaro, suffered from minor cuts and were released to a relative at the scene.

There is a premier California DUI attorney in that area.

Get a License, Agree DUI can Kill

California DUI defense lawyer news

Gov. Arnold Schwarzenegger signed a bill requiring everyone who gets a drivers license to sign a statement acknowledging DUI - driving under the influence can kill.

If a person who signs the statement does choose to drive under the influence of alcohol or drugs ( DUI ) and consequently kills somebody, the bill would allow prosecutors to prove they acted maliciously and not just recklessly.

"It's very unlikely we could ever prove that anyone paid attention to it and really realized it was there, read and reflected on it, so it would be a very limited value," said Kern County District Attorney Ed Jagels.

Dismissal of DUI for failure to provide speedy trial in Riverside County

California DUI case dismissed

Court trial back-up forces dismissals

October 17, 2007

Caused largely by the refusal of Riverside County District Attorney to offer certain plea bargains made in other counties, a court dismissed a California DUI and eight felony cases because no judges were available.

The DA's office there has been under attack by California DUI criminal defense attorneys who maintain the DA's office is far harsher than other Counties, causing more cases to go to trial and backlogging the system.

In each case, the time limits guaranteeing defendants' rights to a speedy trial had expired. The presiding judge said prosecutors immediately refiled the felonies dismissed Monday and Tuesday, which included domestic violence, assault, gang, drug and fraud cases. The defendants were arraigned again. Prosecutors may refile expired felony cases only once, said Sue Steding, chief assistant district attorney.

The district attorney's office is considering whether to appeal Monday's dismissal of a misdemeanor DUI case and is awaiting a ruling on its appeal of two misdemeanor cases dismissed earlier this year because of time constraints.

Every week, they face dismissing cases. They have been lucky that the courts had avoided dismissing felonies until now.

Riverside's backlog of cases was the worst in the state. The felony dismissals, he said, are unusual, but not unprecedented in California and are always considered the last resort.

Other counties grappled with dismissals after the Legislature passed the three-strikes law, sending more and more complicated cases into the courts. As a result, the Judicial Council of California, which oversees the courts, sent a task force of judges around the state to help clear the cases.

They are worried that the dismissals would lead defendants to be less likely to plead guilty at early stages of their cases, hoping they would eventually be dismissed.

There are 1,265 criminal cases pending in the Riverside Hall of Justice, which includes some cases from Indio and Murrieta that are on the verge of dismissal.

As Riverside County's judicial system neared crisis earlier this year, they assembled a strike team of 27 judges who work part time, creating the equivalent of 12 full-time judges to help clear the oldest cases.

Some will leave in November, but as many as six may continue working in Riverside County. As of early October, the strike team had disposed of more than 60 cases.

A committee was set up headed by Justice Richard Huffman of the 4th District Court of Appeal to examine the court's procedures. One issue they are sorting through is whether more cases could be resolved through plea bargains.

Another major reason for the backup was the county's population explosion. Riverside County added just three new judges from 1989 through 2006, while the population grew 76%, according to the judicial council.

The county's judges had done everything they could to avoid the dismissals, including virtually shutting down civil trials. They have maximized their resources. Every available trial courtroom is filled. They have done everything but successfully convince the DA's office from being so unreasonable in California drunk driving cases.

Instead of becoming more like other countys' DA's offices, officials in the district attorney's office have urged the court to send expiring cases to judicial officers handling family law, probate and juvenile dependency matters.

The law was ambiguous on whether a criminal case should take precedence over family law matters, such as restraining orders.

Last year, Riverside County's judges handled 795 criminal trials, nearly twice the load they handled in 2002, Fields said.

That exceeded the number of trials heard in San Diego County, even though it has about 1 million more people and roughly twice as many judges, he said.

Riverside County's judges are on pace to handle about 950 criminal trials this year, not including those handled by the strike force.

Other than changing the DA's policies on making offers in California DUI and other cases, an expensive solution for the court's crush will be to add more judges. Riverside County has been one of the top beneficiaries of the 100 new judgeships the Legislature has created in the last two years.

Riverside allotted seven new judgeships to Riverside County last year, five of which have been filled, and an additional seven this year.

California DUI criminal defense attorneys simply suggest the DA's office look at how other DA's offices handle themselves in other counties in California.