Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Ct. No. 09NF0794, James A. Stotler, Judge.
Correen Ferrentino, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
BEDSWORTH, ACTING P. J.
OPINION
Appellant Rommel Pangan was convicted by a jury of a collection of Vehicle Code and Penal Code violations – detailed below – having to do with driving under the influence and causing great bodily injury, for which he was sentenced to six years in state prison plus stayed and concurrent sentences. We appointed counsel to represent appellant on appeal. While not arguing against appellant she filed a brief which set forth the facts of the case and advised us she was unable to find an issue to argue on appellant’s behalf.
We informed appellant he had 30 days to file written argument in his own behalf. No such communication was filed. We have reviewed the record of appellant’s trial and find ourselves in agreement with his appellate counsel: There is no arguable error in the proceedings against appellant. (People v. Wende (1979) 25 Cal.3d 436.) We therefore affirm.
STATEMENT OF FACTS
Appellate counsel, in keeping with her duties under Anders v. California (1967) 386 U.S. 738 and People v. Wende, supra, 25 Cal.3d 436, has provided us a detailed statement of facts. We are unable to find any significant error or omission in that statement of facts and therefore, in the interest of judicial economy, adopt it for our opinion:
A. Procedural History
“On August 20, 2009, the Orange County District Attorney filed an information charging appellant with driving under the influence of alcohol/drugs and causing bodily injury with two or more prior convictions (Veh. Code, [] § 23153, subd. (a); count 1), and driving with a blood-alcohol level greater than 0.08 percent and causing injury with two or more prior convictions ([Veh. Code], § 23153, subd. (b); count 2). Appellant was further charged with driving on a suspended license, a misdemeanor ([Veh. Code, ] § 14601.5, subd. (a); count 3). Concerning counts 1 and 2, the information alleged appellant personally inflicted great bodily injury in commission of the offenses (Pen. Code, § 12022.7, subd. (a)). On April 6, 2010, appellant entered a guilty plea on count 3. Also, appellant admitted two prior convictions for driving under the influence of alcohol/drugs after the court granted his motion to bifurcate and admit the priors.
All further statutory references are to the Penal Code unless otherwise indicated.
“On April 7, 2010, during voir dire, the court granted appellant’s motion for a mistrial. The second trial commenced on April 13, 2010. On April 20, 2010, the court denied appellant’s motion to dismiss pursuant to section 11811.1.
“On April 23, 2010, the jury found appellant guilty on all counts. The jury found true the allegation that appellant had caused great bodily injury within the meaning of section 12022.7, subdivision (a). Sentencing took place on June 11, 2010. The court denied probation. On count 1, the court sentenced appellant to the middle term of three years, plus an additional three years, to run consecutively, for the great bodily injury enhancement (§ 12022.7). On count 2, the court sentenced appellant to the middle term of three years, plus an additional three years pursuant to section 12022.7, but stayed the sentence on count 2 pursuant to section 654. On count 3, the court sentenced appellant to six months in jail, suspended. Concerning victim restitution, the court retained jurisdiction and ordered a supplemental probation report on the issue.
“At a hearing on June 15, 2010, the court clarified and corrected certain aspects of appellant’s sentence, including the assessment of certain fines and fees. At the hearing, appellant also waived his right to be present at the restitution hearing. On June 24, 2010, appellant timely filed a notice of appeal.”
B. Factual Background
“On September 3, 2009, at approximately 9:00 p.m., Oscar Muniz was driving in the southbound middle lane on Beach Boulevard in La Habra, heading to work. Muniz noticed a bright light in his rearview mirror and then, almost instantaneously, his car was hit from behind. Muniz was unsure whether he was hit from the left side or the right side. Muniz’ car spun around a hit a telephone pole.
On cross-examination, Muniz admitted that the vision out of his right eye is blurry as a result of an injury he received during his career as a professional boxer.
“Meanwhile, Darrick Lucero was also driving southbound on Beach Boulevard. Appellant passed Lucero on his left side, driving between 40 and 45 miles per hour. Lucero saw appellant cut over and the left front of appellant’s car hit the right rear of Muniz’ truck. Lucero was unsure as to whether Muniz’ truck was going straight at the time, or changing lanes.
“The accident caused Muniz’ legs to be caught underneath the dashboard of his car and he felt pain all over his body. The fire department used the “jaws of life” to free Muniz from his vehicle. Muniz was then placed in an ambulance and, although he believes he was treated for the pain, he does not remember what he was given.
“Muniz’ right knee/tibia was fractured and required surgery. He also had a rib fracture and two fractures in his lower back, which did not require surgery. Three days after surgery Muniz was discharged from the hospital and then received physical therapy treatment for about six months. At the time of trial, Muniz’ knee was not fully recovered. The injury impaired his ability to walk and Muniz used a cane.
“Officer John Jaime was dispatched to assist in the investigation of the accident. Lucero told Jaime that Muniz had been driving about three car lengths ahead of Lucero, in the same lane, and going about 40 miles per hour. Lucero told Jaime that he saw appellant pull into the lane directly behind Muniz, and that appellant collided with the rear of Muniz’ truck when appellant moved to the right to change lanes again.
“Officer Eric Leclercq was also dispatched to the scene. When Leclercq arrived, appellant had already been placed in an ambulance that transported him to UCI Medical Center. In order to investigate a potential DUI charge against appellant, Leclercq went to the hospital to speak with appellant.
“Because appellant was being treated and tested, Leclercq had to wait for “quite some time” before he was able to speak with him, and was only able to speak with appellant for less than five minutes. Leclercq observed that appellant had a “pretty significant laceration to his head.” Appellant told Leclercq that all he could remember was that there had been a truck and that appellant was trying to turn left when the accident happened. Appellant told Leclercq that he had had one beer earlier in the evening.
“Leclercq did not smell any alcohol on appellant. Leclercq observed that appellant’s eyes were bloodshot and watery, and that his speech was soft and slightly slurred. Based on Leclercq’s experience and training, bloodshot, watery eyes are an indicator that someone has consumed alcohol or possibly other drugs. However, due to the fact that appellant was lying in a hospital bed with a head injury, and because Leclercq did not know whether appellant had been given any medication, Leclercq did not conduct a field sobriety test in order to determine whether appellant was impaired for the purpose of driving.
“At 11:08 p.m., a blood technician drew appellant’s blood. Tests showed that appellant’s blood alcohol level was.15. Assuming that appellant drank alcohol between 6:00 and 7:00 p.m., expert testimony established that appellant’s blood alcohol level at 9:00 p.m. would have been between.18 and.19 at 9:00 p.m.
Appellant testified that he consumed alcohol between 6:00 and 7:00.
“Based on information he obtained from other officers at the scene of the collision as to how the accident occurred, and the fact that appellant had bloodshot, watery eyes and slurred speech, Leclercq recommended a DUI charge against appellant.
“Defense Evidence:
“Appellant testified that prior to the accident he had been visiting friends in La Habra. Appellant believed that during his visit he had consumed three beers between 6:00 and 7:00 p.m. Appellant left his friend’s home at about 8:00. Appellant testified that Muniz, who was ahead of him, moved over into appellant’s lane and hit the driver’s side of appellant’s car.
“Dale Stephens, an expert in the field of accident reconstruction, testified on behalf of appellant. Stephens reviewed the police reports and the photos that were taken at the scene of the accident. Stephens opined that the police reports were incomplete because critical information was missing, including the location of the skid marks, the precise length and shape of the skid marks, the points of rest of the vehicles, and the location of gouge marks. Stephens also noted that there were discrepancies in the reports, including the fact that one of the officers noted the roadway was dry, while another noted it was wet. There were also discrepancies as to which lane the vehicles were traveling in.
“Due to the lack of physical evidence gathered by the police, Stephens testified that it could not be determined how the accident occurred, the speed at which either car was traveling, or the location on Beach Boulevard where the impact occurred. Stephens also testified that, although one of the police reports stated that appellant was responsible for the accident, the police officer who prepared the report failed to document any factual support for her conclusion.
“Stephens further opined that the descriptions of the accident provided by Muniz and Lucero, in their statements to the police, were inconsistent with the physical evidence. Although Muniz reported that he was hit from the rear, there was no damage to the rear of his truck or the front of appellant’s car. Similarly, Lucero’s statement that the collision occurred when appellant’s car was behind Muniz’ truck and changing lanes into the fast lane in inconsistent with the fact that there was no damage to the rear of the truck or the front of appellant’s car. Also, Lucero’s statement that appellant was moving from right to left is inconsistent with the fact that appellant’s car was damaged on its left side.”
DISCUSSION
Appellate counsel started her search for issues to argue on behalf of appellant at the most logical starting point: Was there evidence sufficient to support his conviction? There was. There being no question about appellant’s driving, the most obvious question was whether it had been shown he was under the influence. It had. Convincingly.
Two hours after the accident from which the charges grew, appellant’s blood alcohol level was more than double the allowable level (.18). An expert extrapolated an alcohol level of.19 to.20 at the time of driving from that number. While there were no field sobriety tests because of the accident, this high blood alcohol level and the testimony of witnesses effectively foreclosed any defense based upon questioning whether appellant was in fact under the influence.
Appellant’s own difficulty remembering the offense and the testimony of the witnesses similarly eliminated any challenge to whether appellant had “done an act forbidden by law” or caused the accident. Appellate counsel correctly eliminated sufficiency of the evidence as a possible ground for appeal.
Counsel also considered challenging the great bodily injury enhancement that doubled appellant’s sentence. But the injuries of the other driver left no room for a factual challenge and the law in the area was equally barren of support for appellant.
There was at trial an evidentiary contretemps concerning evidence the other driver in the accident had a measurable level of opiates in his blood. Appellate counsel searched for an appellate ground in this issue, but failed to find one. She was right. Whether the other driver had taken opiates – or even whether the other driver was under the influence – was an issue with some facial appeal, but no depth. The trial judge has wide discretion in the admissibility of evidence. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) Here, such evidence would have had little or no impact, and the trial court would have been well within its discretion in deciding the possibility of confusion of the issues would have outweighed any actual evidentiary benefit to resolution of the case.
Counsel also researched the question of whether a great bodily injury enhancement could be attached where bodily injury is an element of the underlying crime. “Was the section 12022.7 enhancement properly imposed since a violation of [Vehicle Code] section 23153 requires bodily injury?” Unfortunately for appellant, while a great bodily injury enhancement cannot be imposed where great bodily injury is an element of the offense (e. g., mayhem) (People v. Pitts (1990) 223 Cal.App.3d 1547, 1558-1560), Vehicle Code section 23153 does not require great bodily injury – it requires only “harm or hurt to the body.” (People v. Dakin (1988) 200 Cal.App.3d 1026, 1034-1035.) There is no legal impediment to punishing a crime that includes bodily injury more severely when great bodily injury is inflicted. The trial court acted well within its discretion in imposing the great bodily injury enhancement.
Despite counsel’s thoroughness in setting out for us the issues she considered most viable and the cases that had convinced her they did not support an appeal, we have scoured the record ourselves for appellate issues. We have found none we consider viable.
The judgment is affirmed.
WE CONCUR: MOORE, J., FYBEL, J.