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Amendment of the Complaint California DUI Lawyers Association

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Amendment of the Complaint California DUI Lawyers Association Powered By Docstoc
					Filed 7/17/07 P. v. Paiz CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F049457
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. VCF132640)
                   v.

MICHAEL PAIZ, JR.,                                                                      OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Tulare County. Valeriano
Saucedo and Ronn M. Couillard, Judges.

         Joel M. Murillo for Defendant and Appellant.
         Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Lewis A.
Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
         Michael Paiz, Jr., (appellant) was found guilty after jury trial of one count of gross
vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a)).1 He pled no
contest to one count of driving while privileges were suspended due to prior driving

         1All   further statutory references are to the Penal Code unless otherwise stated.
under the influence (DUI) violations (Veh. Code, § 14601.2, subd. (a)). The trial court
sentenced appellant to 17 years to life.2
       Appellant makes numerous arguments on appeal: (1) that double jeopardy bars his
conviction and that the trial court erred when it allowed amendment of the complaint; (2)
that appellant was entitled to specific performance of his plea agreement; (3) that the trial
court erred when it excluded the testimony of a defense expert; (4) that there was
insufficient evidence to bind appellant for trial; (5) that the trial court erred when it
excluded a spontaneous statement made by appellant; (6) that the trial court erred when it
failed to instruct on lesser included offenses; (7) that appellant received ineffective
assistance of counsel; and (8) that cumulative error occurred. We disagree and affirm.
                                            FACTS
       On the afternoon of August 23, 2004, at approximately 4:00 p.m., appellant,
driving a gray GMC pickup, collided with a red Toyota pickup, killing the driver, Jose
Prado. The accident occurred at the intersection of Avenue 280 (also known as Visalia
Road) and Road 156 (also known as Mariposa Avenue). Visalia Road runs east and west;
Mariposa Avenue runs north and south. Mariposa Avenue has stop signs at the
intersection, while Visalia Road does not.
       Raul Chavez witnessed the accident while stopped at the stop sign on Mariposa
Avenue. He saw the GMC, which was heading east, begin to make a left turn onto
Mariposa Avenue. At the same time, the Toyota was heading west on Visalia Road at
approximately 55 to 60 miles per hour. As the GMC turned, it collided with the Toyota.
The GMC was pushed backward and spun to face the opposite direction from that in
which it had been traveling. The Toyota went to the right, but was still facing roughly the
same direction it faced originally. Following the collision, Chavez saw another man
approach the driver of the GMC and tell him to remain at the scene. Chavez thought his


       2The abstract of judgment erroneously indicates appellant was sentenced by Judge Gerald
Sevier; appellant was sentenced by Judge Valeriano Saucedo.


                                               2.
presence was not necessary because “everything seemed to be clear” and, since he was on
his way to pick up his daughter, he left the scene without talking to the police.
       Officer Brian Yokley responded to the accident at approximately 4:25 p.m. and
spoke with appellant, who was in an ambulance at the time. Officer Yokley smelled a
strong odor of alcohol in the ambulance and, at 4:38 p.m., administered a sobriety test
with a preliminary alcohol screening (PAS) device, which indicated that appellant had a
blood-alcohol level of 0.20 percent. Officer Yokley was able to perform only that one
field sobriety test on appellant because ambulance personnel were tending to him.
       Appellant was taken to the hospital where he was placed under arrest for DUI. A
blood sample, taken at 6:42 p.m., showed a blood-alcohol content of 0.15 percent.
       Officer Yokley’s original accident report concluded that Prado had caused the
collision. According to the report, Prado’s Toyota was southbound on Mariposa Avenue
and appellant’s GMC was westbound on Visalia Road at the time of the accident.
       A month after the accident, Rudy Suarez, a friend of Prado’s, privately
investigated the accident and located Chavez. Because Chavez’s version of the accident
differed greatly from that in the accident report, Suarez took Chavez to the California
Highway Patrol (CHP) Office where Chavez told Officer Greg Stoffel what he had seen.
       Based on the information from Chavez, Officer Robert Krider of the CHP’s
Multi-disciplinary Accident Investigation Team (MAIT) was consulted and reconstructed
the accident. Officer Krider opined that the Toyota was traveling westbound when the
GMC, traveling eastbound, either made a left turn or came across the yellow line in front
of the Toyota. The GMC was going slower than the Toyota, which would be consistent
with a car making a left turn. The vehicles collided almost head on. Although the Toyota
was lighter than the GMC, it was going faster, and the impact caused the GMC to rotate
counterclockwise and to leave arced skid marks.
       Officer Krider pointed out several errors in Officer Yokley’s original report. First,
the right side of the GMC was not damaged, as would be expected had the collision
occurred as Officer Yokley had described it. Neither was there any displacement of the

                                             3.
left side of the Toyota, as also would be expected under Officer Yokley’s theory. Officer
Krider also noted that, had the GMC been going west and the Toyota going south, the
vehicles would not have ended up in the northwest quadrant of the intersection, as they
did, but would instead have come to rest in the southwest quadrant.
       Evidence was received at trial that appellant had several prior DUI offenses. On
March 25, 2004, a police officer observed appellant’s vehicle on Visalia Road. He was
driving slowly and weaving “pretty dramatic” before making a U-turn in front of another
vehicle, causing that vehicle to “lay on the brakes” to avoid hitting appellant. The officer
stopped appellant, who had bloodshot and watery eyes, slurred speech, an unsteady gait,
and who admitted having consumed approximately five beers. Appellant had three empty
beer cans in the bed of his pickup and three unopened beers in an ice chest. Appellant
failed several field sobriety tests and was arrested for driving under the influence. He had
a blood-alcohol level of 0.30 percent almost an hour and a half after being stopped.
       The parties stipulated that appellant had received a misdemeanor DUI conviction
in December of 1998 and a felony DUI conviction causing injury in July of 1999.
Defense
       Jennifer Elvert testified that, on August 23, 2004, she was driving east on Visalia
Road with her seven-year-old daughter when a red vehicle on Mariposa Avenue ran a
stop sign and entered the path of a gray pickup traveling west on Visalia Road. The two
vehicles collided and stopped at the point of impact. Elvert testified that there were trees
and a fence which she had to look through to see the red pickup. Elvert pulled off the
road, activated her emergency blinkers, and called 911. Elvert testified that she gave a
statement similar to her trial testimony to the officers at the scene.
Rebuttal
       District attorney investigator Kevin Bohl and deputy district attorney Michael
Moberly interviewed Elvert in March of 2005. According to Elvert, the red pickup was
southbound on Mariposa Avenue and the gray pickup was westbound on Visalia Road.
At the intersection, the red pickup went around the right side of another car. The gray

                                              4.
pickup then hit the red pickup on the driver’s side of the red pickup, not the front. When
specifically asked, Elvert told Bohl and Moberly that she did not actually see the red
pickup run the stop sign, but she thought it had to have done so.
                                      DISCUSSION
I.     Amendment of the Complaint
       Appellant argues that, because of an earlier plea, double jeopardy bars his
conviction for gross vehicular manslaughter while intoxicated. He also contends section
1009 barred amendment of the complaint to add the charge of which he was later
convicted. We disagree.
       A.     Procedural background
       A felony complaint was filed against appellant, in this matter, on August 26, 2004.
The complaint charged appellant with one count of felony DUI, with prior convictions
(Veh. Code, § 23152, subd. (a)); one count of felony driving with a blood-alcohol level of
0.08 percent or more, with prior convictions (id., § 23152, subd. (b)); and one count of
driving while privileges were suspended because of a prior DUI conviction, with prior
convictions (id., § 14601.2, subd. (a)). Appellant pled not guilty to all charges.
       On November 4, 2004, in case No. VCF126965, appellant pled no contest to a
felony violation of driving a vehicle with a blood-alcohol level of 0.08 percent or more on
March 25, 2004, with two prior convictions for similar offenses in 1998 and 1999 (Veh.
Code, § 23152, subd. (b)). On that same day, appellant also pled no contest in the present
case to a felony violation of Vehicle Code section 23152, subdivision (b), and a
misdemeanor violation of driving without a license (id., § 12951). The trial court set
sentencing in both cases for December 10, 2004.
       On December 7, 2004, the prosecution filed an amended complaint in the present
case charging appellant with one count of gross vehicular manslaughter while intoxicated
(§ 191.5, subd. (a)); one count of felony driving while under the influence, causing injury
(Veh. Code, § 23153, subd. (a)); one count of felony driving a vehicle with a blood-
alcohol level of 0.08 percent or higher, personally inflicting great bodily injury (Veh.

                                             5.
Code, § 23153, subd. (b); §§ 12022.7, subd. (a), 1192.7, subd. (c)(8)); and one count of
driving while privileges were suspended because of a prior DUI (Veh. Code, § 14601.2,
subd. (a)).3
       At the scheduled December 10 sentencing hearing, defense counsel objected to the
filing of the amended complaint on grounds of double jeopardy. The parties agreed that
the vehicular manslaughter charges had not been filed originally because of the first CHP
report, and that, after appellant had pled no contest, the CHP MAIT had evaluated the
accident and submitted new information to the district attorney’s office, which prompted
the filing of the new complaint. The trial court allowed the amended complaint to be
filed because: (1) section 1009, which allowed amended complaints, was to be liberally
construed; and (2) the complaint involved a separate and distinct criminal charge not on
“all fours” with the initial charge. The court scheduled further argument on the question
of double jeopardy for the time of the preliminary hearing.
       At the subsequent hearing on January 28, 2005, the parties submitted on the issue,
and the trial court allowed the “amended” or “new” complaint because “there are other
and additional elements that would be necessary aside from the driving while under the
influence and/or driving while having a .08 or higher blood level.” At the March 4, 2005,
arraignment on the information, appellant pled not guilty to all charges and denied all
allegations.
       B.      Double jeopardy
       Appellant contends that, when he entered his plea of no contest on November 4,
2004, to the charge that he violated provisions of sections 23152, subdivision (b), and
12951 of the Vehicle Code, “jeopardy attached,” barring the amended complaint and his
subsequent conviction of gross vehicular manslaughter while intoxicated. We disagree.




       3The counts  charging driving under the influence and driving with a blood-alcohol level
of 0.08 percent or more were later dismissed.


                                               6.
       The federal and California Constitutions both prohibit placing a person twice in
jeopardy for the same offense. “No person shall … be subject for the same offense to be
twice put in jeopardy of life or limb .…” (U.S. Const., 5th Amend.) “Persons may not
twice be put in jeopardy for the same offense .…” (Cal. Const., art I, § 15.)
       The Legislature has implemented the constitutional mandate against double
jeopardy in various ways. A defendant may plead “former conviction” (§ 1017, subd. 3)
or “once in jeopardy” (§ 1017, subd. 4).

       “When the defendant is convicted or acquitted or has been once placed in
       jeopardy upon an accusatory pleading, the conviction, acquittal, or jeopardy
       is a bar to another prosecution for the offense charged in such accusatory
       pleading, or for an attempt to commit the same, or for an offense necessarily
       included therein, of which he might have been convicted under that
       accusatory pleading.” (§ 1023; see also §§ 654, 656, 687, 793, 794,
       1118.2.)
       Further, it has been held that being placed in jeopardy for a lesser included offense
is a bar to a subsequent prosecution for the greater offense. This is based on the notion
that, once a conviction on the lesser offense has been obtained, “to [later] convict of the
greater would be to convict twice of the lesser.” (People v. Krupa (1944) 64 Cal.App.2d
592, 598; quoted in People v. Fields (1996) 13 Cal.4th 289, 306.)
       Here, appellant submitted his plea of “once in jeopardy” to the trial court for its
decision. “Where, as here, there is no dispute as to the facts, whether defendant was
formerly convicted or was formerly once in jeopardy is a question of law and not of fact.
[Citations.]” (People v. Sturdy (1965) 235 Cal.App.2d 306, 315.)
       A guilty plea is the equivalent of a conviction and bars subsequent prosecution for
the same offense. (People v. Bryant (1992) 10 Cal.App.4th 1584, 1596-1597.)
“In taking a guilty [or no contest] plea and approving a negotiated disposition, [however,]
the trial court retains the inherent power to withdraw its approval at the time of
sentencing.” (People v. Thomas (1994) 25 Cal.App.4th 921, 925.) “Every court has
inherent power to prevent abuse of its process and to conform its procedures to the
fundamentals of due process.” (People v. Clark (1968) 264 Cal.App.2d 44, 46.) This

                                             7.
allows a trial court to set aside a guilty or no contest plea prior to the entry of judgment.
(Id. at pp. 46-47.) “If the plea is not … approved by the court, the plea shall be deemed
withdrawn .…” (§ 1192.5.)
       Respondent contends this case is controlled by People v. Thomas, supra, 25
Cal.App.4th 921. We agree.
       In Thomas, the defendant was charged originally, in a misdemeanor complaint,
with DUI and driving with a blood-alcohol level of 0.08 percent or more, and with having
two prior DUI convictions. At arraignment, the defendant agreed to plead guilty to
driving with a blood-alcohol level of 0.08 percent or more and to admit the two priors,
with the remaining count to be dismissed. The trial court accepted the plea and the
admissions, dismissed the remaining count, and immediately started to impose sentence.
In doing so, the trial court discovered that the defendant had in fact suffered three prior
DUI convictions. The court vacated the defendant’s plea as part of a plea agreement
based on a false premise. (People v. Thomas, supra, 25 Cal.App.4th at p. 924.) The
district attorney elected to dismiss the misdemeanor complaint and filed a felony
complaint to which the defendant entered a plea of not guilty. On appeal, the Thomas
court upheld the subsequent conviction against the defendant’s double jeopardy
challenge, reasoning that, since the plea had been vacated, jeopardy had not attached. (Id.
at pp. 925-926.)
       Nothing in Gonzalez v. Municipal Court (1973) 32 Cal.App.3d 706, relied upon by
appellant, dictates a result here contrary to that reached in Thomas. “Jeopardy attaches,
and a defendant is deemed to have been placed on trial, upon a regular entry of a plea of
guilty. [Citations.] It has been held that a guilty plea is equivalent to a conviction and, if
allowed to stand, it bars a subsequent prosecution for the same offense, and a plea of
former conviction is good [citations].” (Gonzalez, supra, at p. 714.) Here, the plea was




                                              8.
not allowed to stand. Final approval was withdrawn when the prosecutor made the court
aware of new accident reconstruction evidence.4
       The concern behind “once in jeopardy” restrictions is that

       “‘“the State with all its resources and power should not be allowed to make
       repeated attempts to convict an individual for an alleged offense, thereby
       subjecting him to embarrassment, expense and ordeal and compelling him
       to live in a continuing state of anxiety and insecurity, as well as enhancing
       the possibility that even though innocent he may be found guilty.”’
       [Citations.]” (Bryan v. Superior Court (1972) 7 Cal.3d 575, 581.)
       Nor may the government “be given the opportunity to rehearse its prosecution,
‘honing its trial strategies and perfecting its evidence through successive attempts at
conviction .…’” (United States v. Dixon (1993) 509 U.S. 688, 747 (conc. & dis. opn of
Souter, J.).)

               “‘“The constitutional prohibition against ‘double jeopardy’ was
       designed to protect an individual from being subjected to the hazards of
       trial and possible conviction more than once for an alleged offense.…”’
       [Citation.] Courts ‘have disparaged “rigid mechanical” rules in the
       interpretation of the Double Jeopardy Clause. [Citation.]’ [Citation.] ‘The
       exaltation of form over substance is to be avoided.’ [Citation.]” (People v.
       Saunders (1993) 5 Cal.4th 580, 593.)
       To find a violation of the double jeopardy clause in the present case would, indeed,
be to exalt form over substance. Though appellant was disappointed in his attempt
(knowing or not) to “beat” the system, he was not subjected to repeated attempts to
convict for the same offense or to the ordeal of repeated prosecution. “We do not exalt
form over substance and we do not rigidly or mechanically apply ‘double jeopardy’
rules.” (People v. Thomas, supra, 25 Cal.App.4th at p. 928.) We therefore reject
appellant’s contention.


       4We are unconvinced       by appellant’s argument that the trial court did not reject the plea
but, instead, followed the lead of the prosecution as it “control[led] the judicial process ….” The
trial court clearly exercised its discretion to allow the amendment of the pleading against
appellant. The only reasonable inference is that the court also, impliedly, exercised its discretion
to reject the plea it had previously taken.


                                                 9.
       C.     Section 1009
       Section 1009 controls the amendment of an accusatory pleading by the district
attorney. Under its language, “an amended complaint may be filed by the prosecuting
attorney, without leave of court at any time before the defendant pleads or a demurrer to
the original pleading is sustained.” (Ibid.) After the defendant pleads or a demurrer is
sustained, the district attorney may amend the accusatory pleading only with leave of
court. Whether “‘the prosecution should be permitted to amend … is a matter within the
sound discretion of the trial court and its discretion will not be overruled in the absence of
a clear abuse thereof.’” (People v. Flowers (1971) 14 Cal.App.3d 1017, 1020, quoting
People v. Baldwin (1961) 191 Cal.App.2d 83, 87.)
       Whether the prosecution seeks to amend before or after the defendant has entered a
plea, certain limitations apply:

       “An indictment or accusation cannot be amended so as to change the
       offense charged, nor an information so as to charge an offense not shown
       by the evidence taken at the preliminary examination. A complaint cannot
       be amended to charge an offense not attempted to be charged by the original
       complaint, except that separate counts may be added which might properly
       have been joined in the original complaint.” (§ 1009.)
       Appellant contends the trial court erred in allowing the amendment of the
complaint, to add the more serious charge of gross vehicular manslaughter of which he
was convicted, because that was “an offense not attempted to be charged by the original
complaint ….” (§ 1009.) Respondent does not address, as we might expect respondent
would, the question whether the gross vehicular manslaughter charge was one that “might
properly have been joined in the original complaint.” (Ibid.) Nevertheless, we agree with
the point that respondent does make—to wit, that the filing of the amended complaint
here was acceptable because it can be deemed the filing of a new complaint and because
such filing did not prejudice any of appellant’s substantial rights. (Cf. People v. Brown
(1973) 35 Cal.App.3d 317, 322 [“The test for determining whether the trial court abused




                                             10.
its discretion in permitting the amendment of the information is whether the amendment
prejudiced the substantial rights of the defendant”].)
       As stated long ago in People v. Grunhof (1931) 115 Cal.App.Supp. 771, “if an
amendment [to a complaint] is not proper, it will be treated as a new complaint though not
so labeled.” (Id. at pp. 776-777.) Such treatment of the amended pleading may raise
questions relating to double jeopardy or to the timeliness of the prosecution. (See, e.g.,
Patterson v. Municipal Court (1971) 17 Cal.App.3d 84, 88 [distinguishing between
amendments to complaint that seek to correct defect or insufficiency in original
complaint, which do not raise a statute of limitation issue, and amendments that charge
offense not attempted to be charged by the original complaint, and which do not “relate
back” to comply with applicable statute of limitations].) We have already answered the
double jeopardy question here in the negative. Appellant, we note, makes no claim that,
had the prosecutor formally dismissed the original complaint, a new complaint charging
the felony gross vehicular manslaughter of which he ultimately was convicted would have
been proscribed. (See § 1387 [effect of dismissal/two dismissal rule].) Neither does
appellant make any claim that the new charge contained in the amended complaint was
not timely.
       Though respondent does not seek to show that the amendment to the complaint
here was permissible because the new charge “might properly have been joined in the
original complaint” (§ 1009), respondent does make the point that the new charge could
have been added by amendment had the amendment been sought later in the case, after it
had proceeded to the point that an information had been filed, because the new charge
was an “offense … shown by the evidence taken at the preliminary examination.” (Ibid.)
We agree that this factor demonstrates that section 1009 was not offended by the
amendment.
       Plainly, none of appellant’s substantial rights were infringed. We therefore reject
appellant’s contention that prejudicial error occurred.



                                             11.
II.     Specific Performance of the Plea Bargain
        Appellant contends he is entitled to specific performance of his original plea
agreement. We disagree.
        “‘[T]he court, upon sentencing, has broad discretion to withdraw its prior approval
of a negotiated plea.’” (People v. Calloway (1981) 29 Cal.3d 666, 673.) Where this
occurs, “‘[t]he preferred remedy … is to permit a defendant to withdraw his plea and to
restore the proceedings to the original status quo.’” (Id. at p. 671.) Furthermore,
“ordering specific performance [is not appropriate where it] would prevent the trial court
from exercising its sentencing discretion, forcing the court to impose a sentence it
expressly rejected as inappropriate.” (Ibid.) “[A] defendant is not entitled to specific
performance of a plea bargain ‘absent very special circumstances.’” (Id. at p. 668.) We
cannot say such special circumstances are present here.
        The court’s prior approval of a plea bargain “‘may be withdrawn at the time of
sentencing if the court, after further consideration and in the exercise of its inherent
discretion in sentencing, concludes that the bargain is not in the best interests of society’
[citation] or ‘upon [the court] being more fully informed about the case.’ [Citations.]”
(People v. Stringham (1988) 206 Cal.App.3d 184, 194.) This is precisely what occurred
here.
III.    Exclusion of Defense Expert Witness Testimony
        In his opening statement to the jury, trial counsel for appellant said “I would
expect to introduce an expert witness. That is a gentleman who has had experience in
reconstruction of accident scenes. And I expect that that gentleman will tell you that it is
perfectly consistent with all of the facts that have been brought forward that indicate the
other side of the coin, that is that [appellant] was driving westbound and that Mr. Prado
was driving southbound, which would indicate there is a collision at a right angle or at
approximately a right angle.”
        When defense counsel called the witness Marvin Williams, whom he sought to
qualify as an expert “in the area of automobile accidents and reconstruction,” a lengthy

                                             12.
voir dire as to Williams’s qualifications ensued. Ultimately, the trial court found that the
witness had not been shown to be “an expert reconstructionist” qualified to give his
opinion “as to the way that this accident may have occurred.” Appellant contends the trial
court erred. We agree, but we will not reverse because defense counsel failed to make a
sufficient offer of proof.5
       At the time of trial, Williams had been employed for less than a year as assistant
director of safety and security at a country club. His previous job had been as an
“operations trainer and supervisor” for a transit agency that operated buses (Sunlight
Transit). In that capacity, he had done “a lot of traffic investigation … for operator-
involved collisions.” Williams had worked in law enforcement between 1977 and 1998.
For the last one of those 21 years, he had been in court services and, for three, he had
been assigned to the county jail. Otherwise, he had worked on patrol and, for some 10
years, he had done accident investigation and reconstruction as a deputy sheriff in
Riverside County. During his law enforcement career, he had investigated “several
thousand” vehicle collisions and had done accident reconstructions in 10 or 12 cases. He
had testified as an expert, for the prosecution, three times. He had performed the last of
his full-blown accident reconstructions in 1992.
       Williams had attended accident investigation and accident reconstruction classes
early in his law enforcement career, in the 1980’s. These were a 40-hour course in basic
accident investigation, an 80-hour course in advanced accident reconstruction, and
another 80-hour course in both subjects, which he took as a “refresher” in 1989. He
taught accident investigation at a law enforcement academy for some 10 years, apparently
the same years during which he did accident investigation and reconstruction as a deputy
sheriff.



       5At  the conclusion of the presentation of evidence at trial, defense counsel did request a
continuance to obtain a different expert witness. The trial court denied the request. Appellant
does not assert this was error.


                                                13.
       The trial court expressed concern that Williams had not taken courses to “maintain
[his] expertise,” either after his early training or after leaving law enforcement.
Addressing these concerns, Williams noted that after his initial training he had, in fact,
taught courses in the relevant field. He took an 80-hour course, a refresher, in accident
reconstruction in the year 1989. Also, in 2004, while employed for Sunlight Transit, he
took three courses: a 40-hour course entitled “Fundamentals of Bus Collision
Investigation,” a 40-hour course entitled “Intermediate Problems in Bus Collision
Investigation,” and a 24-hour instructor’s course that qualified him to instruct the two
other courses. Though none of these classes was designed to qualify the students as
accident reconstructionists, they were classes certified by the United States Department of
Transportation, and they included much the same information taught in basic and
advanced law enforcement classes on accident investigation and reconstruction.
       The trial court also was concerned about the difference between accident
investigation and accident reconstruction. Outside the jury’s presence, the court asked
Williams: “what is your expertise in the different fields of reconstruction from
engineering, physics, auto mechanics, tires, the way tires skid, the way tires may scrub,
those kinds of things …?” Williams agreed there is a “big difference” between
investigation and reconstruction of accidents. He explained that his early training as well
as the training he took in 2004 addressed both subjects. The trial court asked what
courses Williams had taken “[s]ince 1989, … in gouging, scrubs, gouging into
pavement?”6 Williams responded that one of the 40-hour courses he had taken in 2004
had included “the better part of about four or five hours, and also field exercise out in the
field putting skids on the road, measuring the skids, different types of skids on dry
pavement, wet pavement, all that, with cars and a bus both.”




       6CHP   MAIT Officer Krider had already testified about the pavement gouging and scrubs
at the accident scene here, and how they led to his opinion about how the accident had occurred.


                                              14.
       The trial court also expressed concern that Williams belonged to no professional
societies or organizations for accident reconstructionists or related professionals, that he
had done his last full-blown reconstruction in 1992, and that he had not done a
reconstruction here. Williams agreed that all of this was true. He had, however, done a
less than full-blown reconstruction in the year 1999 or 2000. In this case, he had
examined all of the reports, viewed the photographs, visited the scene, and examined the
one vehicle that remained available for examination after the accident.7
       Finally, the trial court expressed general dissatisfaction with the quality of
Williams’s testimony. The court labeled Williams’s description of his early training as
“unclear” and his testimony about “scientific principles, including physics, engineering,
auto mechanics, all those kinds of things that would have to be taken into consideration in
rendering an expert opinion as a reconstructionist” as, at best, vague. The court took
exception to the fact that, when asked whether he had performed a reconstruction in the
present case, Williams did not respond like a “reconstructionist [who], in the Court’s
view, would have been able to respond and say, yes, I did, and then explain the
methodology that he used in performing that reconstruction.”
       After the trial court ruled that Williams would not be allowed to testify “as to the
way that this accident may have occurred,” defense counsel asked whether the court
would “permit Mr. Williams to testify as to certain issues dealing with skid marks,
dealing with—.” The trial court’s response:

       “You’d have to establish his expertise with respect to skid marks, scrubs.
       Because in this area, there are experts who only look at skid marks. There
       are people who only look at scrub marks. There are lots of levels of
       expertise. [¶] A reconstructionist ordinarily has experience and expertise in
       many of these areas. And that is still a substantial problem in the Court’s


       7This, we note, is also what MAIT Officer Krider had done to prepare himself to render
an opinion on the cause of the accident. Krider also had (1) “surveyed” the Toyota vehicle and
used the survey to make a two-dimensional drawing, which he used to illustrate his testimony;
and (2) made a diagram of the scene, which he also used to illustrate his testimony.


                                              15.
       view. Because we have gone through the elements to establish his
       expertise, and the Court is not satisfied as to that.”
Defense counsel responded that he would “have to submit to the Court’s ruling.”
       Generally speaking, a witness may testify only about matters of which he or she
has personal knowledge. (Evid. Code, § 702, subd. (a).) An expert witness, on the other
hand, is one who has special knowledge, skill, experience, training, or education
sufficient to qualify as an expert on the subject to which his or her testimony relates. (Id.,
§ 720, subd. (a).) “The test in each case is whether the witness has sufficient skill or
experience in the particular field so that his testimony would be likely to assist the jury in
the search for the truth.” (Salasquevara v. Wyeth Laboratories, Inc. (1990) 222
Cal.App.3d 379, 385.)

               “[T]he question whether a witness qualifies as an expert is a matter
       addressed in the first instance to the sound discretion of the trial court.
       [Citation.] It is also elementary, however, that the court will be deemed to
       have abused its discretion if the witness has disclosed sufficient knowledge
       of the subject to entitle his opinion to go before the jury.” (Brown v. Colm
       (1974) 11 Cal.3d 639, 646-647; see also People v. Roberts (1992) 2 Cal.4th
       271, 298; People v. Page (1991) 2 Cal.App.4th 161, 187.)
       If a witness has disclosed sufficient knowledge of the subject to allow the
witness’s opinion to go to the jury, “the question of the degree of his knowledge goes to
the weight of his testimony rather than to its admissibility.” (Brown v. Colm, supra, 11
Cal.3d at p. 643.)
       Our task in reviewing a trial court’s order for abuse of discretion has been
described as follows:

       “‘Discretion is abused whenever, in its exercise, the court exceeds the
       bounds of reason, all of the circumstances before it being considered. The
       burden is on the party complaining to establish an abuse of discretion, and
       unless a clear case of abuse is shown and unless there has been a
       miscarriage of justice a reviewing court will not substitute its opinion and
       thereby divest the trial court of its discretionary power.’” (Denham v.
       Superior Court (1970) 2 Cal.3d 557, 566.)



                                             16.
       After reviewing the record in this case in great detail, we conclude that the trial
court erred. Seemingly, the trial court based its decision more on the quality of
Williams’s expertise than on its existence. We agree that Williams did not distinguish
himself as a particularly talented witness or as adept at parrying questions asked of him.
Perhaps the most glaring example was Williams’s inability to recite (without using his
“books”) the formula used to convert miles per hour to feet per second or to define (again,
without using his “books”) the physics concept of “conservation of momentum.” Neither
did Williams recite formulae or professional terms in describing the training he had done
while in law enforcement. On the other hand, Williams was familiar with the reference
guide that the prosecutor, in his voir dire questioning of Williams, labeled the “Bible for
all reconstructionists.” (Cf. People v. Chavez (1985) 39 Cal.3d 823, 829 [expert found
qualified based, in part, on the fact he “knew of the medical literature”].) Though it may
bear on the weight of an expert’s opinion testimony, the fact that the witness finds it
necessary to consult reference works to assist in giving that testimony does not disqualify
the witness as an expert. (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 37.) Also, Williams
was able to understand the basics of a question about vectors, momentum, quadrants, and
point of rest asked by the prosecution. As to Williams’s response to the question whether
he had performed a reconstruction in this case, we cannot agree with the trial court’s view
that he should have “been able to respond and say, yes, I did, and then explain the
methodology that he used in performing [a] reconstruction” that he had not, in fact,
performed.
       The record demonstrates that Williams had taken much the same training as had
the prosecution’s expert, CHP Officer Krider of the MAIT.8 To qualify as an expert, in
any event, did not require that Williams have the same qualifications as did Officer
Krider. (Cf. Chadock v. Cohn (1979) 96 Cal.App.3d 205, 209 [Evid. Code, § 720 does

       8Officer  Krider testified that he had been a CHP officer for seven years and a member of
MAIT for two years. He described over 400 hours of accident investigation and reconstruction
classes he had taken during the course of his career.


                                               17.
not require “that the witness be a medical doctor or otherwise possess the same
professional degrees or certifications held by the attending surgeon”].)
         Neither does the record bear out the trial court’s concern that Williams had not
maintained his expertise over the years. His classes in 2004 appear to have been more
than sufficient for that purpose. If there has been some new development in the
techniques of accident investigation or reconstruction, the record fails to make us aware
of it.
         Our research indicates that law enforcement officers have, for decades, been
testifying in court as to the cause of accidents, based on their law enforcement training as
qualification. (See, e.g., Kastner v. Los Angeles Metropolitan Transit Authority (1965)
63 Cal.2d 52, 56; People v. Haeussler (1953) 41 Cal.2d 252, 260; cf. People v. Champion
(1995) 9 Cal.4th 879, 924-925 [sheriff deputy’s years of field experience qualified him to
testify as an expert on gang terminology], overruled on other grounds in People v. Combs
(2004) 34 Cal.4th 821, 860.) Williams had extensive experience and on-the-job training
in examining the causes of accidents. As noted in Haeussler, “a traffic officer who has
spent years investigating accidents in which he has been required to render official reports
not only as to the facts of the accidents but also as to his opinion as to their causes …, is
an expert.” (People v. Haeussler, supra, at p. 260.)
         That Williams’s experience was less extensive in the actual reconstruction of
accidents, which the trial court described as including “experiments and other things,”
does not, in our view, support the conclusion that he was not sufficiently qualified to
assist the jury in this case to understand the evidence. (Mann v. Cracchiolo, supra, 38
Cal.3d at p. 38 [“Where a witness has disclosed sufficient knowledge, the question of the
degree of knowledge goes more to the weight of the evidence than its admissibility”].)
         Finally, the fact that Williams was, at the time of trial, no longer employed in law
enforcement, does not convince us that he was unqualified. (Osborn v. Irwin Memorial
Blood Bank (1992) 5 Cal.App.4th 234, 274 [“work in a particular field is not an absolute
prerequisite to qualification as an expert in that field”].)

                                              18.
       When the trial court found Williams unqualified, the jury had already heard
testimony from Officer Krider, regarding various aspects of his investigation and his
conclusions, which supported the theory of the accident propounded by the prosecution.
We believe that the voir dire of Mr. Williams demonstrated his qualification to assist the
jury in looking at Officer Krider’s testimony with a critical eye as well as in evaluating
the evidence presented in general. In particular, we note that Williams was qualified to
assist the jury in evaluating the evidence of skid marks, gouging, and scrubs that had been
presented and that played an important part in CHP Officer Krider’s evaluation of the
cause of the accident.
       The difficulty we encounter, however, is that defense counsel did not make an
offer of proof sufficient to allow us to evaluate the prejudicial effect of the trial court’s
error in excluding Williams’s testimony. Error in the exclusion of expert testimony, like
error in the exclusion of other kinds of evidence, is nonreversible without an offer of
proof made to the trial court and contained in the record. (Evid. Code, § 354, subd. (a);
McCleery v. City of Bakersfield (1985) 170 Cal.App.3d 1059, 1073; People v. Honig
(1996) 48 Cal.App.4th 289, 345; People v. Manriquez (1976) 59 Cal.App.3d 426, 432.)
Further, an offer of proof must set forth not merely the facts the proponent of the
evidence intends to prove but “instead … the evidence to prove the facts.” (McCleery v.
City of Bakersfield, supra, at p. 1073.) “‘An offer of proof that sets forth the substance of
facts to be proved does not comply with Evidence Code section 354, subdivision (a),
since facts do not constitute evidence.’” (Id. at p. 1074.)
       Here, to be sure, we know that the broad subject of Williams’s testimony—the
cause of the accident—was extremely important. The trial court acknowledged that
Williams’s testimony would be “fundamental to the defense.” We do not, however, know
what that testimony would have been. Defense counsel did state, in his opening statement
to the jury, that he would introduce an expert who would testify that “it is perfectly
consistent with all of the facts that have been brought forward that indicate the other side
of the coin, that is that [appellant] was driving westbound and that Mr. Prado was driving

                                              19.
southbound, which would indicate there is a collision at a right angle or at approximately
a right angle.” We know that there were two explanations of the accident, each supported
by the testimony of an eyewitness. The evidence supporting the version of the accident
adopted by the prosecution was strong. Officer Krider’s testimony was detailed and
credible. We can speculate that, had Mr. Williams been allowed to testify, Officer Krider
and his opinion on the cause of the accident might not have seemed so invincible. But we
are not permitted to engage in such speculation. In fact, one of the purposes of the offer
of proof requirement is

       “to reduce uncertainty as to the nature of the excluded evidence to a
       tolerable and acceptable level; by doing so, the offer of proof serves to
       improve the reliability of the appellate court’s guesses and estimates
       concerning the probability that the trial court’s error was either prejudicial
       or harmless. We trust the latter estimate more when an offer of proof was
       made because we generally believe that our guesses are more reliable when
       they are based on a wider range of information.” (1 Wigmore, Evidence
       (Tillers rev. ed. 1983) § 20a, p. 865, fns. omitted.)
To accomplish this purpose, “an offer of proof must be specific. It must set forth the
actual evidence to be produced and not merely the facts or issues to be addressed and
argued.” (People v. Schmies (1996) 44 Cal.App.4th 38, 53.) The offer of proof here9
tells us nothing more than that Williams would have testified that the evidence was
consistent with the version of the accident placing appellant westbound on Visalia Road
and Prado southbound on Mariposa Avenue. This simply is not enough. We cannot,
based on this paltry offering, judge whether there is any reasonable probability that
allowing Williams to testify would have changed the result.
       We therefore cannot find reversible error.




       9We accept   an opening statement as an acceptable, though perhaps dangerous, method for
making an offer of proof. Evidence Code section 354, subdivision (a) allows that the “substance,
purpose, and relevance of the excluded evidence [be] made known to the court by … an offer of
proof, or by any other means ….”


                                              20.
IV.    Sufficiency of the Evidence at the Preliminary Examination
       Appellant contends that the evidence presented at the preliminary examination was
insufficient to bind him over for trial on the felony complaint, because the evidence did
not show that he was under the influence of alcohol at the time of the collision, and that
such insufficiency resulted in reversible error. We reject this argument for at least two
reasons.
       First, as noted by respondent, appellant stipulated at the preliminary hearing to the
blood-alcohol laboratory results, which showed “.15 blood alcohol, and that they’ll be
received [as People’s exhibit No. 6], and that [appellant] was under the influence of
alcohol at the time of the collision.” Thus, appellant is wrong that the evidence was
insufficient.
       Second, appellant ignores the well-established rule that error at the preliminary
examination, even error arising from insufficiency of evidence, “justifies reversal of a
judgment of conviction only when a defendant is able to demonstrate prejudice at trial
flowing from [it].” (People v. Crittenden (1994) 9 Cal.4th 83, 136-137; citing People v.
Pompa-Ortiz (1980) 27 Cal.3d 519, 529.)
V.     Exclusion of Appellant’s Statement to Officer Yokley
       Appellant argues that a hearsay statement made by him to Officer Yokley, at the
scene of the accident, was a spontaneous statement and should not have been excluded
from evidence. We disagree.
       A.       Background
       At trial, appellant sought to introduce a statement made by him to Officer Yokley
that he was traveling westbound on Visalia Road at the time of the accident. The
prosecutor objected, and the court conducted an Evidence Code section 402 hearing
outside the presence of the jury.
       At the hearing, Officer Yokley testified that he spoke with appellant at the scene of
the accident. At the time, appellant was lying on a gurney in the back of the ambulance.
Officer Yokley asked appellant questions, but he could not recall what those questions

                                            21.
were. Yokley could not recall whether appellant was bandaged or if he had an
intravenous line at the time, but Yokley did recall that he asked his questions in a rush,
possibly because the ambulance staff was “in a hurry to get rid of” him.
       Yokley testified that appellant said he had been traveling westbound on Visalia
Road, but Yokley did not recall the actual words used by appellant to convey this
information. Yokley did not recall whether appellant was drifting in and out of
consciousness or whether he had any difficulty saying the words.
       On cross-examination, Yokley testified that, although he did not recall the exact
time that appellant made the statement, he did agree that he received the call concerning
the accident at 4:06 p.m., he arrived at the scene at 4:25 p.m., and he administered the
PAS test at 4:38 p.m. He did not specifically recall whether appellant made the statement
before or after the test, but, from past experience, he assumed the statement would have
been made prior to giving the test. Nor did Yokley recall whether the statement was
made in response to a direct question.
       Yokley was not 100 percent certain, but he “somewhat” recalled talking to other
witnesses before talking with appellant. He later stated he was 75 percent certain. He
agreed that, when interviewing witnesses or parties to a traffic accident, he asks leading
questions, but he could not recall whether he had done so in this instance. Yokley
testified that the type of question he might have asked would be “[w]ere you going to
Visalia or to Farmersville?” Officer Yokley did not normally tell a party what other
witnesses had said.
       The trial court stated that it had two “foundational concerns” about appellant’s
purported statement. As to the first, the question of elapsed time, the trial court stated:

       “[O]rdinarily, a statement made after an observed act ought to be excluded
       because a declarant would no longer be under the stress of excitement from
       the act. But if the elapsed time is accounted for by shock, unconsciousness,
       fear, those kinds of matters, it may still be admissible. [¶] And here,
       although we may assume that he … was in this condition, that is, shock, he
       feared or was still under the stress of the excitement of the accident, I do
       not have those foundational facts because it is not being clearly established.

                                             22.
       We can assume that from the circumstances, but I’m not confident at this
       point that he was in any shock or any fear or that he had been unconscious.”
       The second “foundational concern” was that, because it was not clear what
questions Officer Yokley had asked appellant, the nature of appellant’s statement also
was not clear. That is, his statement could have been that Prado’s vehicle, not his, was
westbound.
       The trial court sustained the prosecution’s objection to admission of the statement,
but the court also noted that it would allow the statement if defense counsel could “supply
those foundational facts to the satisfaction of the Court.”
       B.      Applicable law
       The hearsay rule, codified at Evidence Code section 1200, presumes hearsay
statements are inadmissible because they are not made under oath, are not subject to
cross-examination, and the jury does not have the opportunity to view the declarant’s
demeanor as the statement is made. (People v. Duarte (2000) 24 Cal.4th 603, 610.)
Evidence Code section 1240—one exception to the general rule of exclusion—allows for
admission of a hearsay statement if the statement: “(a) Purports to narrate, describe, or
explain an act, condition, or event perceived by the declarant; and [¶] (b) Was made
spontaneously while the declarant was under the stress of excitement caused by such
perception.”

       “‘To render [statements] admissible [under the spontaneous declaration
       exception] it is required that (1) there must be some occurrence startling
       enough to produce this nervous excitement and thus render the utterance
       spontaneous and unreflecting; (2) the utterance must have been before there
       has been time to contrive and misrepresent, i.e., while the nervous
       excitement may be supposed still to dominate and the reflective powers to
       be yet in abeyance; and (3) the utterance must relate to the circumstance of
       the occurrence preceding it.’ [Citations.]” (People v. Poggi (1988) 45
       Cal.3d 306, 318.)
       The declarant’s lack of opportunity to fabricate an account assures the statement’s
reliability. (People v. Trimble (1992) 5 Cal.App.4th 1225, 1234-1235.) Factors that can
indicate the relative reliability of a hearsay statement include the lapse of time between

                                             23.
the startling act and the declaration, the level of excitement likely to be caused by the
event, the mental and physical condition of the declarant, whether the declarant spoke
spontaneously or in response to a question, and other circumstances showing an increased
likelihood of trustworthiness. (People v. Fain (1959) 174 Cal.App.2d 856, 860-861;
People v. Trimble, supra, at pp. 1234-1235.) The “crucial element” in determining
whether a statement is admissible as a spontaneous declaration is the mental state of the
declarant. (People v. Roybal (1998) 19 Cal.4th 481, 516.)

               “‘The foundation for this exception is that if the declarations are
        made under the immediate influence of the occurrence to which they relate,
        they are deemed sufficiently trustworthy to be presented to the jury.
        [Citation.] [¶] The basis for this circumstantial probability of
        trustworthiness is “that in the stress of nervous excitement the reflective
        faculties may be stilled and the utterance may become the unreflecting and
        sincere expression of one’s actual impressions and belief.”’” (People v.
        Poggi, supra, 45 Cal.3d at p. 318.)
        The decision whether to admit a statement pursuant to Evidence Code section 1240
lies within the discretion of the trial court, and we review the trial court’s decision for
abuse of discretion. (People v. Roybal, supra, 19 Cal.4th at p. 516.) Since the question
whether the utterance was made before there had been an opportunity to contrive or
misrepresent is peculiar to the facts of the case, the trial court’s discretion is broadest in
determining whether this requirement is met. (People v. Poggi, supra, 45 Cal.3d at p.
319.)
        In People v. Fain, the defendant was convicted of manslaughter arising from an
automobile accident. He argued that the trial court erred when it refused to admit the
testimony of a witness who, within five minutes of the accident occurring and while the
defendant was lying on the ground in an apparently unconscious or semiconscious state,
heard an officer ask the defendant who had been driving and heard the defendant respond,
“my buddy,” or words to that effect. (People v. Fain, supra, 174 Cal.App.2d at pp. 858-
860.) The court in Fain found the trial court properly excluded the statement, which the
defendant claimed was an excited utterance. In making its determination, the Fain court


                                              24.
took into account that the defendant had been cited four times in the previous year for
speeding, and that he had lost his driver’s license, only to recover it the day before the
accident occurred. The court also noted that, while lay witnesses testified to “an
appearance of unconsciousness or semiconsciousness,” there was “no marked change …
in his appearance to show whether or not [he] clearly knew to what question he was
responding, or whether he was or was not conscious or unconscious.” (Id. at p. 860.)
       The court reasoned that no abuse of discretion occurred:

       “Considering the lapse of time here involved, the doubt as to whether the
       defendant was conscious or unconscious, or even understood the officer’s
       question, the prior convictions for speeding, the loss of license and the
       recovery thereof the day before, all of which were likely to weigh heavily
       on the conscious or subconscious mind of the defendant, thus producing
       strong motives for fabrication and all the other attendant circumstances ….”
       (People v. Fain, supra, 174 Cal.App.2d at p. 861.)
       Here, appellant’s statement was made somewhere between 20 and 30 minutes after
Officer Yokley was first informed of the accident, and thus likely somewhat longer after
the time the accident actually occurred. There is no clear indication whether appellant
was conscious or not, or whether he made the statement in response to a specific question,
and, if so, what that question was. Like the defendant in Fain, appellant had reason to
fabricate a statement in that he had a number of prior convictions for drunk driving and
had previously caused an accident while intoxicated, factors that the trial court considered
in making its determination. Under all of the circumstances, we cannot say that the trial
court abused its discretion in refusing to allow the statement into evidence as a
spontaneous declaration.
VI.    Failure to Instruct on Lesser Included Offenses
       Appellant contends the trial court erred prejudicially when it failed to instruct the
jury, sua sponte, on the offense of DUI (Veh. Code, § 23152) and DUI causing bodily
injury (Veh. Code, § 23153) as lesser offenses included in the charge of gross vehicular
manslaughter while intoxicated (§ 191.5, subd. (a)). Appellant contends that the
instructions given, even those on lesser included offenses, did not allow the jury to

                                             25.
consider the possibility that appellant was “guilty of something other than causing the
accident.” We find no prejudicial error.
       A.     Background
       Appellant was charged with one count of gross vehicular manslaughter while
intoxicated (§ 191.5, subd. (a)); one count of felony DUI, causing bodily injury (Veh.
Code, § 23153, subd. (a)); one count of felony driving a vehicle with a blood-alcohol
level of 0.08 percent or more, causing bodily injury (id., § 23153, subd. (b)); and one
count of driving while privileges were suspended for a prior DUI (id., § 14601.2, subd.
(a)). During trial, appellant pled no contest to the Vehicle Code section 14601.2
allegation. That same day, the Vehicle Code section 23153, subdivisions (a) and (b)
allegations were dismissed on the motion of the prosecutor. This left the charge of gross
vehicular manslaughter for jury determination.
       The jury was instructed on the elements of gross vehicular manslaughter while
intoxicated (§ 191.5, subd. (a)), and the lesser included offenses of (1) vehicular
manslaughter without intoxication and without gross negligence (§ 192, subd. (c)(2)), and
(2) vehicular manslaughter while intoxicated without gross negligence (§ 192, former
subd. (c)(3)). Instructions on the elements of Vehicle Code sections 23152 and 23153
were given, but only as they related to the elements of Penal Code sections 191.5,
subdivision (a), and 192, former subdivision (c)(3). The jury was not instructed that it
could find appellant guilty of Vehicle Code section 23152 or 23153 as lesser included
offenses.
       B.     Relevant law

               “Under California law, [where the issue is whether instruction on a
       lesser included offense was required,] a lesser offense is necessarily
       included in a greater offense if either the statutory elements of the greater
       offense, or the facts actually alleged in the accusatory pleading, include all
       the elements of the lesser offense, such that the greater cannot be committed
       without also committing the lesser.” (People v. Birks (1998) 19 Cal.4th
       108, 117; see also People v. Reed (2006) 38 Cal.4th 1224, 1227; People v.
       Lopez (1998) 19 Cal.4th 282, 288.)


                                             26.
       Section 191.5, subdivision (a) provides:

       “Gross vehicular manslaughter while intoxicated is the unlawful killing of a
       human being without malice aforethought, in the driving of a vehicle, where
       the driving was in violation of Section 23140, 23152, or 23153 of the
       Vehicle Code, and the killing was either the proximate result of the
       commission of an unlawful act, not amounting to a felony, and with gross
       negligence, or the proximate result of the commission of a lawful act that
       might produce death, in an unlawful manner, and with gross negligence.”
       Vehicle Code section 23152 provides, in relevant part:

             “(a) It is unlawful for any person who is under the influence of any
       alcoholic beverage … to drive a vehicle.

             “(b) It is unlawful for any person who has 0.08 percent or more, by
       weight, of alcohol in his or her blood to drive a vehicle.”
       Vehicle Code section 23153 provides, in relevant part:

              “(a) It is unlawful for any person, while under the influence of any
       alcoholic beverage … to drive a vehicle and concurrently do any act
       forbidden by law, or neglect any duty imposed by law in driving the vehicle,
       which act or neglect proximately causes bodily injury to any person other
       than the driver.

              “(b) It is unlawful for any person, while having 0.08 percent or more,
       by weight, of alcohol in his or her blood to drive a vehicle and concurrently
       do any act forbidden by law, or neglect any duty imposed by law in driving
       the vehicle, which act or neglect proximately causes bodily injury to any
       person other than the driver.”
       The accusatory pleading in this case charged that appellant violated section 191.5,
subdivision (a) in that he “did unlawfully, and without malice, kill … Prado, a human
being[,] while driving a vehicle in violation of Vehicle Code Sections 23140, 23152 and
23153 and said killing was the proximate result of the commission of an unlawful act, not
amounting to a felony, and with gross negligence .…”
       Appellant contends the statutory elements of Vehicle Code sections 23152 and
23153 are included within the greater offense of section 191.5, subdivision (a) under both
the accusatory pleading and elements test. We agree. It appears obvious from reading the
relevant code sections that, to find appellant guilty of violating section 191.5, subdivision

                                             27.
(a), the jury first had to find that he violated Vehicle Code section 23152 or 23153. All
three offenses, section 191.5, subdivision (a) and Vehicle Code sections 23152 and
23153, require proof that appellant, as the driver, was under the influence of alcohol.
       In People v. Miranda (1994) 21 Cal.App.4th 1464, 1468, the court determined that

       “Vehicle Code section 23153 … is necessarily included in Penal Code
       section 191.5. One person who injures a person while driving under the
       influence commits a violation of Vehicle Code section 23153; and if that
       person dies from that injury—whether immediately or sometime later—a
       violation of Penal Code section 191.5 has occurred.”
       The trial court in a criminal case must, even in the absence of a request, instruct
the jury on the general principles of law relevant to the issues raised by the evidence.
(People v. St. Martin (1970) 1 Cal.3d 524, 531.) That obligation has been held to include
giving instructions “on all lesser necessarily included offenses supported by the
evidence.” (People v. Breverman (1998) 19 Cal.4th 142, 148-149; see also People v.
Bunyard (1988) 45 Cal.3d 1189, 1232-1234; People v. Flannel (1979) 25 Cal.3d 668, 684
& fn. 12.) In making the determination whether to instruct on a lesser included offense,
the trial court should not attempt to weigh the evidence or judge the credibility of the
witnesses. (People v. Flannel, supra, at p. 684.) As a corollary, however, where there is
no substantial evidence that would support a conviction of the lesser but not greater
offense, the court need not instruct on the lesser included offense. (Ibid.; People v.
Kaurish (1990) 52 Cal.3d 648, 696.)
       Here, the evidence was that appellant was driving while under the influence of
alcohol and that he had a blood-alcohol level of 0.20 percent when the accident occurred.
That Prado was killed as a result of the accident is without question. If appellant was
guilty at all, he was guilty of Prado’s death and not of causing “bodily injury to any
person other than the driver,” as required under Vehicle Code section 23153. Thus, there
is no substantial evidence that would support a conviction of the lesser (Veh. Code,
§ 23153) but not greater offense, and the court was not obligated to so instruct. (People
v. Flannel, supra, 25 Cal.3d at p. 684.)


                                             28.
       But this leaves the question whether the trial court was required, sua sponte, to
instruct on the lesser included offense of violating Vehicle Code section 23152.
       Trial counsel for appellant argued to the jury that, while the evidence was
sufficient to show that appellant was intoxicated, it did not necessarily mean that he was
guilty of the crime charged. Trial counsel argued that the question for the jury was
“[w]ho caused the accident,” and it could very well be that appellant was not at fault.
Evidence was presented, though controverted, that appellant did not cause the accident.
       Under the circumstances presented here, we conclude that the trial court erred
when it did not instruct on Vehicle Code section 23152 as a lesser included offense.
There remains, however, the question of prejudice—a question to be judged by the
Watson10 reasonable probability test. (People v. Breverman, supra, 19 Cal.4th at pp. 177-
178; People v. Joiner (2000) 84 Cal.App.4th 946, 972.) Examining the evidence as a
whole and, as it is appropriate to do in reference to the question of prejudice, examining
its strengths and weaknesses (People v. Breverman, supra, at p. 177), we conclude that
there is no reasonable probability the failure to give a lesser included offense instruction
affected the outcome of the trial.
       The jury concluded beyond a reasonable doubt that appellant was guilty of gross
vehicular manslaughter while intoxicated. To do so, the jury had to find intoxication,
gross negligence, and causation in the death of Prado. Three other theories were
available to the jury: first, that appellant was guilty of vehicular manslaughter with gross
negligence (§ 192, subd. (c)(1)), which would have required that the jury find gross
negligence and causation; second, that appellant was guilty of vehicular manslaughter
(§ 192, subd. (c)(2)), which would have required that the jury find a negligent act and
causation; third, that appellant was guilty of vehicular manslaughter while intoxicated
(§ 192, former subd. (c)(3)), which would have required that the jury find intoxication, a
negligent act, and causation.

       10People v.   Watson (1956) 46 Cal.2d 818, 836.


                                              29.
       While each of the three offered lesser offense theories required the jury to find that
appellant caused the death of Prado, it is likely that, had the jury not found appellant
guilty of causing Prado’s death, it would either have found him not guilty of the charge,
as instructed, or, at most, would have found him guilty of simple negligence in violation
of section 192, former subdivision (c)(3). This the jury did not do. Instead, it found him
grossly negligent.
       No reversible error occurred.
VII.   Ineffective Assistance of Counsel
       Finally, appellant contends that defense counsel provided inadequate
representation in various ways. We disagree.
       A.     Applicable law
       There are two components to a claim that counsel’s assistance was so defective as
to require reversal of a conviction: (1) the defendant must establish that counsel’s
representation fell below an objective standard of reasonableness, and (2) the defendant
must show prejudice resulting from counsel’s alleged deficiencies. (Strickland v.
Washington (1984) 466 U.S. 668, 688, 693-694; In re Marquez (1992) 1 Cal.4th 584,
602-603.)
       We presume that counsel’s conduct “‘falls within the wide range of reasonable
professional assistance’ [citations], and we accord great deference to counsel’s tactical
decisions. [Citation.] Were it otherwise, appellate courts would be required to engage in
the ‘“perilous process”’ of second-guessing counsel’s trial strategy.” (People v. Frye
(1998) 18 Cal.4th 894, 979.) “Tactical errors are generally not deemed reversible, and
counsel’s decisionmaking must be evaluated in the context of the available facts.
[Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 333.) On direct appeal, a reviewing
court will reverse a conviction for ineffective assistance of counsel “only if the record on
appeal affirmatively discloses that counsel had no rational tactical purpose for his [or her]
act or omission.” (People v. Fosselman (1983) 33 Cal.3d 572, 581.)



                                             30.
        Since failure of either prong of the required showing is fatal to establishing
ineffective assistance of counsel, we need not address both prongs if we find appellant
cannot prevail on one of them. (People v. Cox (1991) 53 Cal.3d 618, 656, citing
Strickland v. Washington, supra, 466 U.S. at p. 697 [“‘In particular, a court need not
determine whether counsel’s performance was deficient before examining the prejudice
suffered by the defendant as a result of the alleged deficiencies’”].)
        B.     Claims of ineffective assistance of counsel
        Appellant makes seven separate claims of ineffective assistance of counsel. Using
the standards enunciated above, we dismiss five of these claims because we have
addressed them, ante, and have either rejected the argument underlying the ineffective
assistance claim or found a lack of prejudice. We address each of these five briefly. The
other two we address in greater detail.
               1.     Failure to further argue double jeopardy issue
        Appellant contends trial counsel was ineffective when he failed to argue further
the issue of double jeopardy at the preliminary hearing. We disagree. As discussed in
part I.B., ante, double jeopardy did not foreclose appellant’s conviction. Any argument
appellant’s counsel might have made would have been futile. “Trial counsel is not
required to make futile objections, advance meritless arguments or undertake useless
procedural challenges merely to create a record impregnable to assault for claimed
inadequacy of counsel. [Citation.]” (People v. Jones (1979) 96 Cal.App.3d 820, 827.)
               2.     Failure to urge that provisions of the plea agreement be
                      specifically performed
        Appellant contends trial counsel was ineffective when he failed to argue that the
provisions of the plea agreement be specifically performed. We disagree. As discussed
in part II., ante, appellant was not entitled to specific performance of the plea agreement.
Any argument by trial counsel to that effect would have been futile, and therefore did not
constitute ineffective assistance of counsel. (People v. Jones, supra, 96 Cal.App.3d at p.
827.)


                                             31.
              3.     Failure to argue that the jury should have been instructed on lesser
                     included offenses
       Appellant argues that trial counsel was ineffective when he failed to request
instruction on Vehicle Code section 23152, subdivision (a) or (b), as a lesser included
offense to Penal Code section 191.5. We disagree. As discussed in part VI., ante,
appellant was not prejudiced by the lack of such an instruction. (Strickland v.
Washington, supra, 466 U.S. at p. 697 [court need not determine whether counsel’s
performance was deficient before examining the prejudice suffered by defendant as result
of alleged deficiencies].)
              4.     Failure to argue that section 1009 prevented the prosecution from
                     filing a first amended complaint
       Appellant claims that trial counsel was ineffective when he failed to object and
present argument that filing the amended complaint violated section 1009. We disagree.
As discussed in part I.C., ante, the trial court did not abuse its discretion when it allowed
amendment of the complaint. Any argument on this ground would have been futile, and
therefore did not constitute ineffective assistance of counsel. (People v. Jones, supra, 96
Cal.App.3d at p. 827.)
              5.     Failure to file a motion to set aside the information on the ground
                     that there was not sufficient evidence that appellant drove while
                     intoxicated
       Appellant argues that trial counsel was ineffective when he failed to file a motion
to dismiss the information on the ground that there was insufficient evidence that
appellant drove while intoxicated. We disagree. As discussed in part IV., ante, appellant
stipulated for purposes of the preliminary hearing that there was sufficient evidence that
he drove while intoxicated. Any argument on this ground would have been futile, and
therefore did not constitute ineffective assistance of counsel. (People v. Jones, supra, 96
Cal.App.3d at p. 827.)




                                             32.
              6.     Failure to assert time limits in section 859b
       Appellant argues that he was in custody for a period of 33 days from his
arraignment without a time waiver and without a preliminary examination being
conducted. Appellant claims trial counsel was ineffective when he failed to have the
complaint dismissed and have appellant released from custody. We disagree.
       Section 859b provides that, unless both the defendant and the People waive the
right or good cause for a continuance is found (as defined in § 1050), “the preliminary
examination shall be held within 10 court days of the date the defendant is arraigned or
pleads, whichever occurs later .…” That section further provides that, if the defendant is
in custody, the magistrate shall dismiss the complaint if the preliminary hearing is set or
continued beyond the 10 court days, unless the defendant personally waives his right to
preliminary examination within 10 court days, or the prosecution establishes good cause
for a continuance. (§ 859b, subds. (a) & (b).) The defendant shall be released if the
preliminary examination is set or continued beyond the 10-court-day period, unless the
request was made by the defendant. As recently explained in People v. Standish (2006)
38 Cal.4th 858:

       “If an in-custody defendant’s preliminary examination is delayed for more
       than 10 court days without a waiver or good cause, the complaint must be
       dismissed, but if the prosecutor shows good cause for postponement, no
       dismissal is required—but a defendant who is in custody must be released
       [on his own recognizance] .…” (Id. at p. 869.)
       Here, appellant was arraigned on a felony complaint on August 26, 2004. At the
arraignment, the preliminary hearing was set for September 8, 2004. Appellant claims he
did not waive time. At the preliminary hearing confirmation, held September 7, 2004, the
preliminary examination was continued to October 13, 2004. Appellant claims he did not
waive time. At the preliminary hearing confirmation, held on October 12, 2004, the
preliminary examination was continued to November 5, 2004, but at this point appellant
did waive time. Thus, as argued by appellant, “from the date of arraignment on



                                             33.
August 26, 2004, until October 12, 2004, … [appellant] remained in custody, a period of
thirty-three days court, without a time waiver.” (Underscoring omitted.)
       Initially, we take exception with appellant’s claim that, from the date of the
arraignment on August 26, 2004, to the date of the scheduled hearing on September 8,
2004, the 10-court-day rule was violated. We take judicial notice of the fact that the time
period between those two dates included two Saturdays, two Sundays, and one holiday,
Labor Day, on September 6, 2004. A “court day” does not include Saturdays, Sundays,
and holidays. (People v. Pickens (1981) 124 Cal.App.3d 800, 805-806.) This leaves
eight days, meaning that the preliminary examination was appropriately scheduled for
September 8, 2004, two days before the 10-court-day rule expired.
       As for the claim that appellant did not waive time between the preliminary hearing
confirmation held on September 7, 2004, and October 13, 2004, and that his trial counsel
should have moved to have the complaint dismissed and appellant released from custody,
we find the record provided by appellant inadequate to address his concern. The only
basis for appellant’s argument is the minute order in the record, dated September 7, 2004,
which shows an absence of a check mark on the part of the minutes that states “Defendant
waives time.” Appellant has provided us with no transcript of the proceedings, and so it
is unclear from the record whether or not appellant waived the 10-court-day limit (§ 859b,
subd. (a)). Where the record does not illuminate the basis for the challenged acts or
omissions, a claim of ineffective assistance is more appropriately made in a petition for
habeas corpus. In habeas proceedings, there is an opportunity in an evidentiary hearing to
have trial counsel fully describe his or her reasons for acting or failing to act in the
manner complained of. (§§ 1483, 1484; People v. Pope (1979) 23 Cal.3d 412, 426,
overruled on other grounds in People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10,
overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.)
       In any event, we agree with respondent that appellant cannot show prejudice from
counsel’s lack of an objection. Had counsel objected, appellant would have been entitled
to, at most, either setting the preliminary hearing within 10 days, being released from

                                              34.
custody, or dismissal of the complaint. (See §§ 859b & 1318.) Appellant makes no claim
that the outcome of his case would have been different had the preliminary hearing been
set within the 10-court-day period. Neither does he claim prejudice resulted because he
was not released on his own recognizance. (People v. Standish, supra, 38 Cal.4th at p.
883 [error not inherently prejudicial].) And, because an amended or new complaint was
filed in appellant’s case, he cannot show prejudice from not dismissing the original
complaint.
               7.     Failure to file a section 1538.5 suppression motion to exclude the
                      results of the blood test
         Finally, appellant contends he was denied effective assistance of counsel when
trial counsel failed to file a section 1538.5 suppression motion to exclude the results of
the blood test because the PAS test, which established probable cause to arrest appellant
and subsequently led to the blood test, was performed without the full admonishments
required by Vehicle Code section 23612, subdivisions (h) and (i). We disagree.
         Vehicle Code section 23612, subdivision (h) provides that, in relevant part, a PAS
test may be used to establish reasonable cause to believe that a person was driving in
violation of Vehicle Code sections 23152 and 23153. Vehicle Code section 23612,
subdivision (i) provides that, in relevant part, if the officer decides to use the PAS device,
the officer “shall advise” the person that he or she is requesting the person take the test to
assist the officer in determining whether the person is under the influence of alcohol, and
that the person has a right to refuse to take the test. At trial, Officer Yokley testified that,
“Normally, there is an admonishment for the [PAS] device. As I recall, I did not give him
the full admonishment just for the fact that I did not have the ability or the time at the
time.”
         A section 1538.5 motion must be based on an alleged violation of constitutional
rights, those concerning search and seizure. (People v. Huston (1989) 210 Cal.App.3d
192, 225.) But “California decisional law holds a police officer’s mere failure to comply
with the requirements of this state’s implied consent law [Veh. Code, § 23612] does not


                                              35.
equate with or amount to a violation of the arrestee’s rights under the federal
Constitution.” (Ritschel v. City of Fountain Valley (2006) 137 Cal.App.4th 107, 119, and
cases cited therein.) Even assuming Officer Yokley violated appellant’s statutory rights
under California’s implied consent law, it was not a violation of his federal constitutional
rights.
          Thus, any failure of the part of Officer Yokley to fully advise appellant of his
statutory right does not equate with or amount to a violation of appellant’s rights under
the federal Constitution, and any section 1538.5 motion on that basis would have been
futile. Counsel was therefore not ineffective for failing to make such a motion. (People
v. Jones, supra, 96 Cal.App.3d at p. 827.)
VIII. Did Cumulative Error Occur?
          In conclusion, appellant contends that the cumulative impact of all of the above
errors deprived him of a fair trial. We have either rejected appellant’s claims of error
and/or found that any errors, assumed or not, were not prejudicial. Viewed cumulatively,
we find that any errors do not warrant reversal of the judgment. (People v. Stitely (2005)
35 Cal.4th 514, 560.)
                                         DISPOSITION
          The judgment is affirmed. The trial court is directed to correct the abstract of
judgment in accordance with footnote 2, ante, and to forward a certified copy of the
corrected abstract to the Department of Corrections and Rehabilitation.


                                                            ___________________________
                                                                            DAWSON, J.
WE CONCUR:


________________________________
WISEMAN, Acting P.J.


 ________________________________
CORNELL, J.
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