P. v. Rodriguez

Filed 4/5/06 P. v. Rodriguez CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County.

Patrick T. Meyers, Judge. Affirmed.

Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General of the State of California, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Marc E. Turchin, Supervising Deputy Attorney General, and Alene M. Games, Deputy Attorney General, for Plaintiff and Respondent.

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Appellant Esquibel Rodriguez was convicted, following a jury trial, of one count of driving under the influence of alcohol causing injury in violation of Vehicle Code section 23153, subdivision (a), one count of leaving the scene of an accident in violation of section 20001, subdivision (a), one count of driving with a blood alcohol level of 0.08 percent or more causing injury in violation of section 23153, subdivision (b), one count of driving under the influence of alcohol in violation of section 23152, subdivision (a) and one count of driving with a blood alcohol level of 0.08 percent in violation of section 23152, subdivision (b). The jury found true the allegations that appellant personally inflicted great bodily injury on one victim within the meaning of Penal Code section 12022.7 and had a blood alcohol level of 0.20 percent or higher within the meaning of Vehicle Code section 23578. The trial court found true the allegation that appellant had suffered two prior convictions, both for driving under the influence, within the meaning of Penal Code section 667.5, subdivision (b). The court sentenced appellant to a term of eight years and eight months in state prison.

Appellant appeals from the judgment of conviction, contending that there is insufficient evidence to support the jury's finding that he had a blood alcohol level of 0.20 percent and that the imposition of the upper term by the trial court violated his right to a jury trial as set forth in Blakely v. Washington (2004) 542 U.S. 296. We affirm the judgment of conviction.

Facts

On October 13, 2004, at about 10:00 p.m., appellant drove his car into a lane of oncoming traffic on Washington Boulevard in Whittier. His car hit a Civic driven by Susan Romero. Armando and Griselda Rosales were passengers in the Civic. Appellant's car then spun out of control and hit a van driven by Tony Ramos.

Once his car stopped moving, appellant climbed out of a passenger window in his car and tried to walk away from the scene of the collision. Several bystanders, including Christopher Fierro, followed appellant. Fierro grabbed appellant's right arm and another man grabbed his left arm. The two men returned appellant to the scene of the collision. Police officers took him into custody.

At 10 p.m., Officer Paul Segura of the Whittier Police received a call from Officer Burns, who was investigating the crash on Washington Boulevard. Officer Burns directed Officer Segura to Presbyterian Hospital, to conduct a driving under the influence investigation on appellant.

At the hospital, Officer Segura found appellant lying on a gurney in a hallway. He noticed a very strong of alcohol on appellant's breath. Officer Segura also observed that appellant's eyes were bloodshot and watery, and his manner was "sarcastic" and "belligerent." Officer Segura attempted to question appellant, but received nonresponsive or sarcastic answers. He waited about 30 to 45 minutes, then tried to question appellant again, with limited success. Appellant told Officer Segura that he had consumed 30 16-ounce beers, but would not say when he started or stopped drinking, or where he had done the drinking.

At 11:35 p.m., appellant's blood was drawn. This blood was later tested by Leo Summerhays, a criminalist with the Los Angeles County Sheriff's Department. Sumerians determined that appellant had a blood alcohol level of 0.23 percent when the blood was drawn.

Discussion

1. Sufficiency of the evidence

Appellant had a blood alcohol level of .23 percent at 11:35 p.m. on the night of the accident, about 90 minutes after the accident occurred. He contends that there is insufficient evidence to support the jury's finding that he had a blood alcohol level of 0.20 percent or higher at the time of the accident.

In reviewing a challenge to the sufficiency of evidence, "the reviewing court must consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt." (People v. Mincey (1992) 2 Cal.4th 408, 432.)

The standard of review is the same when the prosecution relies on circumstantial evidence to prove guilt. (People v. Rodrigues (1999) 20 Cal.4th 1, 11.) "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. Thomas (1992) 2 Cal.4th 489, 514, internal quotations omitted, citing People v. Bean (1988) 46 Cal.3d 919, 932-933.)

Appellant points out that the victims testified that the accident occurred at about 10:00 p.m. and prosecution expert Summerhays testified that a person who finished drinking "at or about" 10:00 p.m. would have a blood alcohol level of 0.19 percent at that time. He contends there was no evidence showing when he stopped drinking. He concludes that a reasonable trier of fact could find only that he had a blood alcohol level of 0.19 at the time of the accident. We do not agree.

The jury was faced with at least three scenarios of when the accident occurred, and when appellant stopped drinking. There was the scenario presented by appellant, in which the accident occurred at 10 p.m. precisely and he was drinking right up to the moment of impact. There were two additional scenarios presented by the prosecution's common sense argument and the testimony of the witnesses. Under these scenarios, appellant stopped drinking before he began driving, and the accident occurred at either 9:45 p.m. or 9:30 p.m. In finding the .20 allegation true, the jury rejected appellant's scenario in which he had a .19 blood alcohol level.

We see ample evidence to support the jury's finding that either the 9:45 p.m. or 9:30 p.m. scenario was true.

Summerhays testified that a person who stopped drinking at 9:30 p.m. would have a blood alcohol level of .24 percent at the time of the accident, while a person who stopped drinking at 9:45 p.m. would have a blood alcohol level of .20 to .24 at that time.

The jury was not required to find that the accident occurred at 10:00 p.m. sharp. The jury could reasonably have found that the victims' estimate of the time of the collision as "around 10:00 p.m." did not mean 10:00 p.m. precisely. Ramos, the driver of the van, estimated that 8 minutes passed between the collision and the arrival of the police. Officer Segura testified that he received a call from an officer at the scene at 2200 hours, or 10:00 p.m. These times put the accident at 9:52 p.m. at the latest. It would be reasonable to infer that it took the officers a few minutes after they arrived at the scene to assess the situation, determine that appellant needed to be taken to a hospital, and call Officer Segura. That would put the time of the accident closer to 9:45 p.m. than to 10:00 p.m.

Similarly, the testimony of the victims in the Civic suggests that the collision occurred earlier than 10:00 p.m. Romero, the driver, testified that she was driving home from a restaurant which was located about five miles from the collision site when the collision occurred. Rosales, a passenger, testified that they left the restaurant at about 9:30 p.m. Romero also testified that she was driving 35 miles per hour at the time of the collision. At that rate, she would have covered 5 miles in 8.5 minutes, and arrived at the collision site at 9:39 p.m.

Further, the jury could reasonably have found that appellant stopped drinking before the collision. Since no evidence was introduced of alcohol containers in appellant's car, the jury could have inferred that he stopped drinking before he got into his car. That would push the time that appellant stopped drinking back even further.

2. Upper term

Appellant contends that the imposition of the upper term by the trial court violated his federal constitutional right to a jury trial as set forth in Blakely v. Washington (2004) 542 U.S. 296. The California Supreme Court has held that Blakely does not invalidate California's upper-term sentencing procedure. (People v. Black (2005) 35 Cal.4th 1238. Accordingly, appellant's claim must be rejected.

Disposition

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ARMSTRONG, J.

We concur:

TURNER, P. J.

MOSK, J.

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