P. v. Lara

Filed 3/14/07 P. v. Lara CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Keith D. Davis, Judge. Affirmed.

Wallace B. Farrell and Ann J. Cunningham for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, James D. Dutton, Supervising Deputy Attorney General, and Michael T. Murphy, Deputy Attorney General, for Plaintiff and Respondent.

A jury found defendant and appellant Jose Luis Lara (hereafter defendant) guilty of driving under the influence of alcohol and causing injury in violation of Vehicle Code section 23153, subdivision (a)^[1](count 1) and leaving the scene of an injury causing accident in violation of section 20001, subdivision (a) (count 3).^[2] After defendant waived his right to a jury, the trial court found that defendant had previously been convicted of burglary, a serious or violent felony within the meaning of Penal Code sections 667, subdivision (b) and 1170.12, subdivisions (a) through (d). After denying defendants motion to strike the prior conviction, the trial court sentenced defendant to serve a total of five years four months in state prison.

In this appeal defendant contends that the trial court should have instructed the jury on purported lesser included offenses to the charged crimes, that the trial court prevented defendant from presenting a defense, that the evidence was insufficient to support the jurys guilty verdict on count 3, that trial counsel was ineffective, and that the trial court should have set aside defendants prior serious felony conviction. We conclude, for reasons we explain below, that defendants claims are meritless. Therefore, we will affirm the judgment.

FACTS

The facts are undisputed. On September 4, 2004, around 10:30 p.m., defendant drove his Ford F150 pickup truck the wrong direction in the eastbound lanes of Jurupa Avenue in the City of Fontana. Gilbert Loredo was in his Honda Civic driving east on Jurupa when he saw the headlights of defendants truck coming at him. Loredo swerved to the right but could not avoid the collision. Defendants truck sideswiped Loredos Honda and kept going. Witnesses followed defendant and watched as he crossed the median curb and returned to the westbound lanes of Jurupa. Defendant turned north onto Live Oak and then stopped his truck.

As a result of the collision, Gilbert Loredo hit his head on something in his car and lost consciousness for a brief period of time. Witnesses stopped to help Loredo and called 911 to report the collision. Loredo was taken by ambulance to a nearby hospital where he was treated for injuries to his head, neck, upper back, and left knee. He was released after about eight hours.

A police officer located defendant and his truck on Live Oak, a distance of three-tenths of a mile from where the collision occurred. Defendant was outside the truck, inspecting the damage and talking on a cell phone. Defendant admitted to the officer that he had been in a collision on Jurupa but defendant did not offer any details. Because defendant displayed the objective symptoms of being under the influence of alcohol, i.e., bloodshot, watery eyes and the smell of alcohol on his breath, the police officer asked defendant to perform field sobriety tests. When defendant refused, the officer arrested him. Defendants blood was drawn at 11:40 p.m. and subsequent testing of the blood sample revealed defendant had a blood alcohol level of .26 percent.

Defendant did not present any evidence and instead argued in his defense that the prosecutions evidence did not prove any of the charges beyond a reasonable doubt.

DISCUSSION

Defendant raises various claims of error in this appeal, as noted previously. We first address his assertion that the trial court should have instructed the jury on lesser included offenses to the charged crimes.

1.

LESSER INCLUDED OFFENSE INSTRUCTIONS

During the discussion of jury instructions, defense counsel informed the trial court that he intended to argue the possibility that the victim blacked out before the accident and thereby caused his own injuries. Consistent with that argument, defense counsel requested an instruction on misdemeanor driving under the influence of alcohol in violation of section 23152, as a lesser included offense to the charged crime of driving under the influence of alcohol and causing injuries. After discussing whether any evidence had been presented at trial to support the defense argument, the trial court denied defendants request to give the lesser included offense instruction. Defendant contends the trial court erred. Defendant also contends the trial court should have instructed the jury sua sponte on the misdemeanor crime of leaving the scene of an accident where property damage occurred, a violation of section 20002, as a lesser included offense to the charged crime of leaving the scene of an injury causing accident in violation of section 20001. Defendants claims are meritless, for reasons we now explain.

It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jurys understanding of the case. [Citation.] That obligation has been held to include giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged. [Citations.] The obligation to instruct on lesser included offenses exists even when as a matter of trial tactics a defendant not only fails to request the instruction but expressly objects to its being given. [Citations.] Just as the People have no legitimate interest in obtaining a conviction of a greater offense than that established by the evidence, a defendant has no right to an acquittal when that evidence is sufficient to establish a lesser included offense. [Citation.] [Citations.] (People v. Breverman (1998) 19 Cal.4th 142, 154-155.)

Although misdemeanor driving under the influence of alcohol in violation of section 23152 is a lesser included offense to the crime charged in count 1, driving under the influence and causing injury (see People v. Capetillo (1990) 220 Cal.App.3d 211, 220-221), the evidence at trial did not raise a question as to whether all of the elements of the charged crime were present. As noted above, defense counsel requested the lesser included offense instruction because he intended to argue to the jury in closing that Mr. Loredo, the driver of the other car, might have passed out and caused the collision.^[3] Defense counsels desire notwithstanding, there was no evidence to suggest that the events occurred in a sequence other than that described at trial defendant sideswiped Mr. Loredos car causing Mr. Loredo to hit his head and lose consciousness. Because there was no evidence to support it, the trial court correctly refused defendants request to instruct the jury on driving under the influence of alcohol as a lesser included offense to the crime charged in count 1.

The trial court did not have a duty to instruct the jury on leaving the scene of a crime where property damage occurred, a violation of section 20002, because that crime is not a lesser included offense to the charged crime of leaving the scene of a crime where injury occurred, a violation of section 20001. (See People v. Carter (1966) 243 Cal.App.2d 239, 242 [an accident that causes personal injury does not necessarily cause property damage and therefore the elements of the section 20001 offense do not necessarily include the elements of the section 20002 offense].)

2.

RIGHT TO PRESENT A DEFENSE

Defendant contends that the trial court prevented him from presenting a defense because the court precluded him from arguing to the jury that Mr. Loredo might have passed out and thereby caused the accident. We do not share defendants view.

A defendants right to present argument in his or her defense depends on the same factors that give rise to the trial courts duty to instruct the jury on the defense theory of the case both depend on the existence of any substantial evidence to support the defense. (See People v. Ponce (1996) 44 Cal.App.4th 1380, 1386, 1388-1389.) Defendant contends substantial evidence to support his defense theory and hence his argument to the jury is found in Mr. Loredos testimony that he blacked out and his acknowledgement during cross-examination that he is diabetic. According to defendant that evidence supports the defense theory that Mr. Loredo might have blacked out as a result of his diabetic condition and that blackout caused the collision with defendant.

Defendants theory and the proposed argument to the jury are not supported by substantial evidence because there is nothing in the record to suggest Mr. Loredo blacked out before the collision. As set out above, and as previously discussed, Mr. Loredo testified that he blacked out, or lost consciousness, after defendants truck sideswiped his car. Moreover, although Mr. Loredo acknowledged that he was diabetic, he denied that he had ever suffered a blackout as a result of that condition. In short and simply put, defendants theory is based entirely on speculation rather than evidence and the trial court properly precluded defendant from making that argument to the jury.

3.

SUFFICIENCY OF THE EVIDENCE

Defendant challenges the sufficiency of the evidence to support the jurys verdict on count 3, the charge that he violated section 20001 by failing to stop at an accident that caused injury. Defendant also contends that the trial court should not have given the so-called flight instruction because flight is an element of the crime charged in count 3. We disagree with both contentions.

In addressing a challenge to the sufficiency of the evidence supporting a conviction, the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence evidence that is reasonable, credible and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.] (People v. Kraft (2000) 23 Cal.4th 978, 1053.)

Section 20001, subdivision (a) requires a driver involved in an accident that causes injury to another person to immediately stop . . . at the scene of the accident and . . . fulfill the requirements of Sections 20003 and 20004.^[4] Section 20003 requires the driver to provide specified information to the injured person and to any police officer at the scene, and to render aid to the injured person if necessary. In order to find defendant guilty of violating section 20001, the evidence must show, among other things, that defendant while driving a vehicle was involved in an accident with another vehicle, that the accident caused injury to someone other than defendant, that defendant either knew that the accident had injured another person or knew from the nature of the accident that it was probable that another person had been injured, and that defendant willfully failed . . . [t]o stop immediately at the scene of the accident. (See Judicial Council of Cal. Crim. Jury Instns. (2006-2007), CALCRIM No. 2140.) As the trial court instructed the jury, The duty to stop immediately means that the driver must stop his or her vehicle as soon as reasonably possible under the circumstances.

Defendants contrary claims notwithstanding, the evidence presented at trial supports the jurys implied findings that defendant failed to stop as soon as reasonably possible under the circumstances. As noted above, after sideswiping Gilbert Loredos car, defendant drove on for three-tenths of a mile, and turned onto another street before he stopped. A police officer and an eyewitness both testified at trial that there were several places defendant reasonably and safely could have stopped between the scene of the accident and where defendant actually stopped.^[5] From that evidence the jury could reasonably infer that defendant did not immediately stop at the scene of the accident.

The evidence also supports the jurys implied finding that defendant knew from the nature of the accident that it was probable another person had been injured. The jury could reasonably infer from the disparity between the size of defendants truck and the victims car, and the nature of the collision, which according to Gilbert Loredo, shattered windows in the drivers and passenger side doors, and also broke the rear window, that it was probable someone had been injured. That implied finding by the jury is sufficient, in turn, to support the verdict finding defendant guilty on count 3, defendants contrary claim notwithstanding.

Defendant also contends that the evidence is insufficient to establish that he failed to perform the remaining duties specified in section 20003. The statute is violated, as the trial court instructed the jury, if the defendant fails to perform one or more of the specified duties. ( 20003; CALCRIM No. 2140 (2006-2007).) The evidence was sufficient to show that defendant failed to stop immediately at the scene of an accident in which it was probable that injuries had occurred. That evidence in turn supports the jurys verdict finding defendant guilty of violating section 20001. Therefore we need not, and will not, address defendants other challenges to the sufficiency of the evidence to prove other duties defendant failed to perform.

Defendant also contends, apparently to bolster his argument that the evidence is insufficient to support the conviction, that the trial court should not have given the so-called flight instruction in this case because flight is an element of the section 20001 violation. According to defendant: The instruction relieved the government from proving all the elements of section 20001 and undermined the presumption of innocence.^[6] We will not resolve defendants claim because if error occurred it necessarily was harmless.^[7]

The trial court instructed the jury in this case that, If the defendant fled immediately after the crime was committed, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled, or tried to flee, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled or tried to flee cannot prove guilt by itself.

Contrary to defendants characterization, the flight instruction as quoted above, told the jurors that they could, but were not required to, consider evidence that defendant fled after the collision as circumstantial evidence that he was aware of his guilt. The instruction does not relieve the jury of its duty to find each element of the crime proved beyond a reasonable doubt, as defendant contends. Moreover, there is compelling evidence in this case, apart from the fact that defendant fled, to show that defendant was aware that he had collided with another vehicle the evidence that defendant drove about three-tenths of a mile and then pulled over to examine the damage to his truck. In short, if the trial court erred by giving the flight instruction in this case, that instruction was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)

4.

ASSISTANCE OF COUNSEL

Defendant contends he was denied his right to the effective assistance of counsel at trial, first, because counsel did not present evidence to show that defendant stopped as quickly as reasonably possible under the circumstances, next, because trial counsel did not object when a police officer testified, in pertinent part, that if he had wanted to defendant could have stopped his truck sooner, and, finally, because counsel did not object on the grounds of hearsay when a police officer testified that people were telling defendant not to say anything to the police. The claims are meritless.

In order to establish a claim of ineffective assistance of counsel, defendant must demonstrate (1) counsels performance was deficient in that it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsels deficient representation prejudiced the defendant, i.e., there is a reasonable probability that, but for counsels failings, defendant would have obtained a more favorable result. [Citations.] A reasonable probability is one that is enough to undermine confidence in the outcome. [Citations.] (Peoplev. Dennis (1998) 17 Cal.4th 468, 540-541, citing, among other cases, Stricklandv. Washington (1984) 466 U.S. 668.) In evaluating counsels actions at trial, A court must indulge a strong presumption that counsels acts were within the wide range of reasonable professional assistance. [Citation.] Thus, a defendant must overcome the presumption that the challenged action might be considered sound trial strategy under the circumstances. [Citation.] (Peoplev. Dennis, supra, at p. 451.)

Defendant has not established his ineffective assistance of counsel claim. His entire discussion of both components of that claim consists of the following: Appellant believes that the compendium of inactions by trial counsel was below acceptable standards of practice, in the absence of which the outcome would have been different. We assume from defendants failure to show why counsels purported failings constituted deficient performance, or how the purported deficiencies were prejudicial, that defendants claims are meritless and, as such, do not require discussion. (See Peoplev. Ham (1970) 7 Cal.App.3d 768, 783 [Where a point is merely asserted by counsel without any argument of or authority for its proposition, it is deemed to be without foundation and requires no discussion]; People v. Hardy (1992) 2 Cal.4th 86, 150.)

For this same reason, we will not address defendants final claim, that the trial court should have set aside defendants prior serious felony conviction. Defendant does not cite authority or discuss the claim, which consists of a single sentence: Without rearguing the matter presented below, Appellant contends the prior offense should have been set aside based on extenuating circumstances at that time and his subsequent rehabilitation.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ McKinster

Acting P.J.

We concur:

/s/ King

J.

/s/ Miller

J.

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^[1]Unless indicated otherwise, all further statutory references are to the Vehicle Code.

^[2]The jury could not reach a verdict on count 2, the charge that defendant drove with a blood alcohol level of .08 or higher and caused injuries in violation of section 23153, subdivision (b). The trial court dismissed that count at sentencing.

^[3]On cross-examination, Mr. Loredo acknowledged that he has diabetes and takes oral medication for the condition. Mr. Loredo also said that he had never passed out as a result of being diabetic.

^[4]Section 20004 pertains to accidents in which a person dies and therefore is not relevant in this case.

^[5]Defendant cites counsels failure to object to the police officers testimony as one of the bases for his ineffective assistance of counsel, a claim we address and reject below.

^[6]The Attorney General contends that defense counsel invited the error because he agreed that the trial court should give the flight instruction. The doctrine of invited error, which prevents an accused from gaining a reversal on appeal because of an error made by the trial court at his behest (People v. Wickersham (1982) 32 Cal.3d 307, 330) requires more than mere assent by defense counsel; defense counsel must have intentionally caused the trial court to err before defendant can be held to have invited the error (People v. Marshall (1990) 50 Cal.3d 907, 931).

^[7]The Attorney General notes that the court in People v. Ryan (1981) 116 Cal.App.3d 168, rejected the issue of whether it is error to give the flight instruction in a case where, as here, the knowing flight from an injury accident constitutes the offense. (Id. at p. 179.) People v. Ryan does not actually address the question and instead states, incorrectly, that, The very same issue was raised by the defendant and decided by People v. Johnson (1969) 271 Cal.App.2d 616 . . . . People v. Johnson is a burglary prosecution in which the court held the flight instruction was proper in that case, and when a defendants flight can be construed as an admission by conduct, a cautionary instruction is not required. (Id. at pp. 623-624.) In other words, People v. Johnson does not address the same issue raised in People v. Ryan and therefore is not authority for the latter courts holding.