Opinion
NOT TO BE PUBLISHED
Superior Court County of Los Angeles, No. SA062681, James R. Dabney, Judge.
Karyn H. Bucur, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec, Supervising Deputy Attorney General, Jason C. Tran, Deputy Attorney General, for Plaintiff and Respondent.
YEGAN, Acting P.J.
Kenneth Robert Lay appeals from the judgment entered following his conviction by a jury of driving under the influence and causing bodily injury (count 1) and driving with a blood-alcohol level of .08 percent or more and causing bodily injury (count 2). (Veh. Code, § 23153, subds. (a) & (b)) The jury found true allegations that appellant had personally inflicted great bodily injury on Gebre Semere (Pen. Code, § 12022.7, subd. (a)) and had proximately caused bodily injury to Neil Hodson. (§ 23558.) The trial court struck the great bodily injury enhancement (Pen. Code, § 12022.7, subd. (a)) and sentenced appellant to prison for the upper term of three years on both counts. Pursuant to Penal Code section 654, the court stayed execution of the sentence on count 2.
All statutory references are to the Vehicle Code unless otherwise stated.
The trial court neither struck nor imposed sentence on the enhancement allegations that appellant proximately caused bodily injury to Neil Hodson within the meaning of section 23558. Both parties agree that this omission renders the sentence unauthorized and that we should strike the enhancements.
Appellant contends that the trial court erroneously refused to instruct the jury pursuant to CALCRIM No. 224, which explains when a jury may rely on circumstantial evidence to prove a fact or find the defendant guilty. We disagree. Accordingly, we modify the judgment to strike the enhancement allegations that appellant proximately caused bodily injury to Neil Hodson within the meaning of section 23558. We affirm the judgment as so modified.
Facts
On January 2, 2007, two vehicles collided. One vehicle, a Chevrolet Nova, was driven by Gebre Semere. Immediately after the collision, Semere saw two persons seated inside the other vehicle, a Jaguar. Appellant was in the driver's seat, and Neil Hodson was in the front passenger seat. When the police arrived, appellant admitted to them that he had been driving the Jaguar and that he did not have a license. The parties stipulated that (1) at the time of the collision, appellant was under the influence of alcohol; and (2) at the time of a chemical test of his blood, appellant's blood-alcohol level was .15 percent. Both Semere and Hodson were injured.
Appellant's defense was that he was merely a passenger in the Jaguar and that Hodson was the driver. Both appellant and Hodson testified to this effect.
Refusal to Instruct Jury Pursuant to CALCRIM No. 224
CALCRIM No. 224 provides: "Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt. [¶] Also, before you may rely on circumstantial evidence to find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable."
CALCRIM No. 224 and its predecessor, CALJIC No. 2.01, are "not necessary unless the prosecution substantially relies on circumstantial evidence to prove its case. [Citations.] Indeed, where circumstantial inference is not the primary means by which the prosecution seeks to establish that the defendant engaged in criminal conduct, the instruction may confuse and mislead, and thus should not be given. [Citation.]" (People v. Anderson (2001) 25 Cal.4th 543, 582.)
Here respondent did not substantially rely on circumstantial evidence to prove its case. Instead, it primarily relied on the eyewitness testimony of Semere and appellant's admission to the police that he had been driving the Jaguar. We reject appellant's contention that CALCRIM No. 224 was required because his extrajudicial admission was circumstantial evidence. " 'Extrajudicial admissions . . . are not the type of indirect evidence as to which the instructions on circumstantial evidence are applicable. [Citation.]' [Citation.]" (People v. Wright (1990) 52 Cal.3d 367, 406; see also People v. Yeoman (2003) 31 Cal.4th 93, 142 [trial court correctly declined to give CALJIC No. 2.01 (now CALCRIM No. 224) where prosecution's proof of a violent criminal act "rested largely on defendant's extrajudicial admissions" instead of circumstantial evidence]; People v. Thongvilay (1998) 62 Cal.App.4th 71, 86-87 [no error in not giving CALJIC No. 2.01 where "the prosecution relied primarily on the direct evidence of [an eyewitness's] testimony and [the defendant's] own admissions"].)
In support of his contention that CALCRIM No. 224 was required because his extrajudicial admission was circumstantial evidence, appellant cites People v. Koenig (1946) 29 Cal.2d 87. In Koenig our Supreme Court noted that, pursuant to former Code of Civil Procedure section 1832, "the testimony of a witness that the defendant admitted guilt would seem to be direct evidence that an admission or confession was made by defendant but circumstantial evidence of the truth of what was admitted." (Id., at p. 91.) The Koenig court assumed that all of the evidence, including the defendant's extrajudicial admissions, was circumstantial evidence. Based on this assumption, it concluded that the trial court had erroneously refused to instruct on circumstantial evidence.
Appellant omits to mention that, in People v. Gould (1960) 54 Cal.2d 621, 630, Koenig was disapproved to the extent it implied that a defendant's extrajudicial admissions require an instruction on circumstantial evidence. Furthermore, in People v. McCullough (1979) 100 Cal.App.3d 169, 179-180, the Court of Appeal questioned the continuing validity of the Koenig court's characterization of extrajudicial admissions as "circumstantial evidence of the truth of what was admitted." (People v. Koenig, supra, 29 Cal.2d at p. 91.) The Court of Appeal noted that the Koenig court had "relied solely on Code of Civil Procedure section 1823 . . . defining indirect evidence and giving as an example thereof, an admission. [¶] However, Code of Civil Procedure section 1823 was repealed with the enactment of the Evidence Code operative January 1, 1967, and was not carried forward in the Evidence Code. Thus, since January 1, 1967, there has been no statutory basis for saying that admissions, per se, are circumstantial evidence of the truth of what was admitted." (People v. McCullough, supra, 100 Cal.App.3d at p. 179.) In view of these developments, the Court of Appeal concluded, "We believe that the better view today is that an extrajudicial admission is direct evidence of the truth of that which is admitted." (Ibid.)
Gould was overruled on another ground in People v. Cuevas (1995) 12 Cal.4th 252, 257.
"Since the People did not 'substantially rely' on circumstantial evidence to prove [appellant] guilty . . ., it follows that the trial court correctly denied [appellant's] request that the jury be charged with [CALCRIM No. 224]." (People v. Wright, supra, 52 Cal.3d at p. 406, fn. omitted.)
Section 23558 Enhancement Allegations
"The failure to impose or strike an enhancement is a legally unauthorized sentence subject to correction for the first time on appeal. [Citations.]" (People v. Bradley (1998) 64 Cal.App.4th 386, 391.) In supplemental letter briefs, both parties agree that appellant's sentence was unauthorized to the extent that the trial court neither struck nor imposed sentence on the enhancement allegations that he had proximately caused bodily injury to Neil Hodson within the meaning of section 23558. Imposition of sentence on these enhancements would have added one year to appellant's three-year prison term.
Both parties further agree that a remand for resentencing "would be an idle act that exalts form over substance because it is not reasonably probable the court would impose a different sentence. [Citations.]" (People v. Coelho (2001) 89 Cal.App.4th 861, 889.) The trial court made it clear that, in view of appellant's prior misdemeanor record, he deserved a prison term no longer than three years: "I am going to strike the [Penal Code section] 12022.7 allegation based on the fact that he has a misdemeanor prior record, has never been to state prison before. I think three years is adequate punishment in this particular case." (Italics added.) We also note that a pre-conviction probation report recommended that appellant be granted probation. Thus, to effectuate the clear intent of the trial court, as recognized by the parties, we modify the judgment to strike the section 23558 enhancements.
Disposition
The judgment is modified to strike the enhancement allegation that appellant proximately caused bodily injury to Neil Hodson within the meaning of section 23558. As modified, the judgment is affirmed. We do not direct the trial court to modify the abstract of judgment sent to the Department of Corrections and Rehabilitation because it does not mention the section 23558 enhancement allegations.
We concur: COFFEE, J., PERREN, J.