Filed 5/1/17 P. v. Vang CA3
NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

KOU VANG,

Defendant and Appellant.
C080021

(Super. Ct. No. 14F04337)






In May 2015, a jury found defendant Kou Vang guilty of causing injury to another while he drove under the influence of alcohol, as well as causing injury to another while he drove with a level of blood alcohol over 0.08 percent. It also sustained allegations that defendant personally inflicted great bodily injury on a nonaccomplice. (There had been a bifurcated allegation of a previous conviction for driving under the influence, but the parties apparently agreed to leave it unadjudicated without any formal ruling on it.) Defendant previously had entered a plea of no contest to driving with a suspended license. The trial court sentenced him to five years in state prison. Defendant appealed; briefing was completed in November 2016.
Defendant contends the trial court erred in refusing his request for an instruction that his passenger’s testimony must be corroborated if the jury found the passenger to be an accomplice. He also contends the jury should have been instructed that it had to find whether the passenger was an accomplice for purposes of the enhancement for infliction of bodily injury, because in his view it is an element of the enhancement that the injury be to someone other than an accomplice. In supplemental briefing, defendant further argues that the jury should have been instructed that it had to find there was infliction of injury on a person other than an accomplice for the substantive offense. As defendant concedes, if we conclude the passenger cannot be an accomplice as a matter of law, his arguments are unavailing. Concluding the passenger could not have been an accomplice under these circumstances as a matter of law, we shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant and his passenger are members of the same Hmong tribe and share the same surname. Defendant testified that their parents were siblings; thus, in the Western scheme of kindred, they are cousins. They first became acquainted when the passenger moved to Sacramento in January 2014.
In June 2014, the passenger was visiting defendant, overnighting at defendant’s home. Defendant had picked him up, because the passenger did not have a car of his own. The following day, defendant testified that they split a 12-pack of beer over the course of the afternoon. (The passenger himself had little memory of events after leaving defendant’s home, but recalled that they had drunk two or three bottles after eating breakfast.) In the early evening, the passenger wanted to go home. There not being anyone else available to drive, defendant agreed to drive him. Neither defendant nor the passenger testified why a taxi or a ridesharing service was not an option.
Defendant testified that the passenger put on his seatbelt as he got into the truck. (The passenger could not specifically remember whether he did so, but said this was his custom.) Defendant acknowledged that at this point, his driving ability was somewhat impaired, and as a result he was having difficulty keeping a safe distance from other cars. All the passenger could recall before being in the hospital was telling defendant at some point to be careful because defendant kept driving over lane dividers. Defendant lived off Florin Road; the passenger lived in midtown Sacramento. Defendant entered Highway 99 at Florin and headed north.
There were three witnesses who had been travelling on Highway 99. The first testified that a truck passed him at a high rate of speed, nearly clipping another vehicle before colliding with a Mercedes, which caused the truck to veer across the traffic lanes and climb the embankment near the Fruitridge Road exit and roll back down on its side. The second witness, a passenger, also noticed the truck when it passed his girlfriend’s car at a high rate of speed. It hit the Mercedes and veered to the left before veering all the way back across the highway to the embankment. Neither of these witnesses noticed the occupants of the truck’s cab. The third witness, the Mercedes driver, felt several bumps on the rear end of his car. He looked in the rearview mirror and could see the truck. He saw a look of panic on the driver’s face; he did not have his attention drawn to the passenger in any respect. He pulled the Mercedes off the road onto the shoulder just past the exit, and in his rearview mirror saw the truck climb the embankment. The collision had knocked loose his rear bumper.
Defendant testified that shortly after they were on the freeway, the passenger removed his seatbelt and said he would take the wheel because defendant was not driving well. From his seat, he leaned in front of defendant’s chest and tried to take the wheel. Defendant could not recall if the passenger actually grabbed it; defendant held onto it at least with his left hand. In trying to push the passenger back, defendant testified that he broke a finger. The truck initially moved to the left, and then defendant attempted to steer it to the right, at which point the truck went up the embankment. In his testimony, he did not mention that he struck another car before losing control of the truck.
In the truck, police found an unconscious unbelted passenger lying atop the seat-belted defendant. At the scene, defendant admitted to having three drinks. At the hospital, defendant denied any recollection of the accident, and asserted that he had not been driving. When the officer pointed out that he had been seat-belted in the driver’s seat, defendant reiterated that he had been asleep and had not been driving. (Defendant testified he did not make these statements.) Defendant again said that he had consumed only three beers. Defendant’s level of blood alcohol was about 0.20 percent at the hospital.
The passenger had multiple broken ribs and two spinal fractures. His own level of blood alcohol was about 0.15 percent at the hospital.
DISCUSSION
As noted above, defendant concedes that his arguments are in vain if we conclude that his passenger was not an accomplice as a matter of law. We thus are not concerned with the legal principles that would otherwise be involved in his instructional claims.
In the curious case of People v. Verlinde (2002) 100 Cal.App.4th 1146 (Verlinde), two intoxicated individuals (the defendant and a companion she had met in a nightclub in Tijuana) shared the duties of driving from the border toward Los Angeles for a period of time before the companion fell asleep, with the companion steering and the defendant operating the stick shift and pedals (the two of them sharing the driver’s seat). (Id. at p. 1155.) On appeal, defendant assigned error to the trial court’s failure to provide pattern cautionary instructions on accomplice testimony and to the propriety of an enhancement for inflicting great bodily injury on her co-driver if he were an accomplice. (Id. at pp. 1157-1158 & fn. 3, 1166.) As Verlinde noted, the issue of accomplice liability ordinarily “is not associated with . . . felony drunk driving [causing injury] because of the individual nature of the act and mental state involved.” (Id. at p. 1160.) Verlinde concluded there was disputed evidence whether the companion was aware of the defendant’s drunken state at the time he surrendered control of the truck to her before falling asleep, and therefore he was not an accomplice as a matter of law; that he coparticipated in the lesser offense of misdemeanor driving under the influence also did not make him liable as a matter of law for the same crimes as defendant (gross vehicular manslaughter and driving under the influence causing injury). (Id. at p. 1161.) However, under these facts, a jury could have concluded that he encouraged the defendant to commit the lesser offense and therefore would be liable for the probable consequence of the greater offenses, and the jury should therefore have been instructed to this effect. (Id. at p. 1162.) The error, however, was not prejudicial and did not undermine the sufficiency of the evidence to support the conviction. (Id. at pp. 1163-1164.) With respect to the enhancement, Verlinde characterized the nonaccomplice status of the injured person as an element (without elaboration), and thus the failure to instruct on this element required reversal because the jury was never asked to resolve the issue. (Id. at pp. 1167-1168.)
The present case is clearly within Verlinde’s description of the customary situation of an individual’s choice to drink and drive, and does not remotely approach Verlinde’s odd facts. The passenger did not in any respect aid defendant in committing either the greater or lesser offense. He was not assisting defendant in the act of driving; even under defendant’s account, the passenger was attempting to prevent defendant from committing the offense by taking charge of the wheel. Nor did the passenger provide any alcohol to defendant before the ride; defendant’s drinking was entirely under his own control. The passenger also did not abet defendant in committing either the greater or lesser offense. Both were aware from the time defendant picked up the passenger that ultimately the passenger would need a means of getting home, but the record does not reflect that the passenger was aware that defendant would be drinking extensively before doing so. Defendant did not provide any evidence that the passenger induced him to make the choice to drive, beyond a “mutual agreement” for defendant to drive him home. That the passenger expressed a desire to go home, and assented to defendant driving him home, does not represent either an effort to induce or encourage defendant to drive drunk rather than their calling a taxi or other ride service to transport the passenger from Florin Road to midtown Sacramento. Otherwise, every passenger assenting to a ride with an inebriated driver would incur criminal liability (in addition to being guilty of a serious lack of judgment), and defendant does not provide even the slightest authority for this vast expansion of the statutes to embrace a whole new class of defendants guilty of driving under the influence as “accomplices.” Defendant also did not testify that the passenger in any way encouraged defendant to drink throughout the day. It thus ultimately remained up to defendant to make the individual choice to drive after deciding on his own to drink all day. As a result, the record lacks any evidence to support a claim that the passenger was an accomplice, and we accordingly reject defendant’s arguments.
DISPOSITION
The judgment is affirmed.




/s/
BUTZ, J.



We concur:



/s/
ROBIE, Acting P. J.



/s/
MURRAY, J.