Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County No. 1407580 Donald E. Shaver, Judge.
Eloy I. Trujillo, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
OPINION
Before Wiseman, Acting P.J., Cornell, J. and Poochigian, J.
STATEMENT OF THE CASE
On September 29, 2009, the Stanislaus County District Attorney filed an information in superior court charging appellant as follows: Count 1--driving under the influence of an alcoholic beverage (Veh. Code, § 23153, subd. (a)) and Count 2--driving while having 0.08 percent or more blood alcohol (Veh. Code, § 23153, subd. (b)). As to each count, the district attorney alleged appellant previously violated Vehicle Code section 23152, subdivision (b), inflicted great bodily injury (Pen. Code, § 12022.7, subd. (a)) and proximately caused bodily injury to three separate victims (Veh. Code, § 23558).
On the same date, appellant was arraigned, pleaded not guilty to the substantive counts, and denied the special allegations.
On November 17, 2009, jury trial commenced.
On November 20, 2009, the jury returned verdicts finding appellant guilty as charged of the substantive counts and finding the special allegations, other than the prior Vehicle Code section 23152, subdivision (b) conviction, to be true.
On November 24, 2009, the court, sitting without a jury, found appellant violated Vehicle Code section 23152, subdivision (b) on May 5, 2009 (Super. Ct. Fresno County, 2009, No. M09914368).
On January 29, 2010, appellant filed a written motion for a grant of probation (Pen. Code, § 1203).
On January 29, 2010, the court denied appellant probation and sentenced him to a total term of four years and four months in state prison. The court imposed the lower term of 16 months on count 1, stayed sentence on count 2, imposed a three-year term for the great bodily injury enhancement associated with count 1, and stayed sentence on the Vehicle Code section 23558 allegations. The court imposed an $800 restitution fine (Pen. Code, § 1202.4, subd. (b)), imposed and suspended a second such fine pending successful completion of parole, and awarded 305 days of custody credits.
On February 22, 2010, appellant filed a timely notice of appeal.
STATEMENT OF FACTS
At 1:30 a.m. on August 30, 2009, a silver GMC pickup truck ran a stop sign and struck a blue car near the Briggsmore Avenue/Carpenter Road overpass in Modesto. Trevor Garrett testified he observed the collision as he and his wife were driving on the overpass. Immediately after the accident occurred, Garrett parked his car behind the pickup truck, which had come to a stop against a sidewalk. Garrett asked his wife to call 911 and approached the damaged blue car.
The car was occupied by members of the Schell family. Garrett assisted Eugenia Schell by unlocking the rear door so that her three children could get out of the backseat. Joshua Schell, the driver of the blue car, had sustained a broken right knee, ankle, and shoulder, and he had cuts on his cheek. He remained in the car until emergency personnel arrived. Eugenia Schell sustained a bruised liver, bruises and scarring on her chest and abdomen, and a possible knee injury. One of her sons sustained bruises on his lung and in the chest and abdomen. Her daughter experienced seatbelt burns and bruises and bleeding from her lip.
After Garrett assisted the Schell family, he approached the pickup truck to check on the status of its occupants. He said appellant was the driver of the vehicle. Garrett observed appellant and two male passengers get out of the truck and stand by the sidewalk. Appellant had blood on the bridge of his nose. According to Garrett, appellant said he was “okay.” After speaking to Garrett, appellant walked to the front of the truck and began to urinate. The two passengers did not appear injured to Garrett and they stood by with their hands in their pockets. Garrett’s wife also checked on the status of the occupants of the pickup truck and she too identified appellant as the driver.
Modesto Police Officer Laticia C. Leap arrived at the scene of the accident and spoke with Fire Captain Kenneth White. Appellant primarily speaks Spanish, and his communication with English-speaking officers at the scene involved a good deal of gesturing. Captain White said appellant was the driver of the pickup truck. Appellant had a cut above his right eye and, in response to a question that included gesturing by Officer Leap, indicated that he was the driver of the pickup. Appellant declined medical assistance, but did have the odor of alcohol on his breath. In response to Leap’s questions, appellant said he had consumed five beers. Leap also said appellant was unable to complete some field sobriety tests.
Modesto Police Officer Randy Davis arrived at the scene and spoke with Officer Leap, who said she unsuccessfully attempted to conduct a horizontal gaze nystagmus test on appellant. Officer Davis noted that appellant had bloodshot eyes, an unsteady gait, and had an odor of alcohol on his person. Davis was able to complete the horizontal gaze nystagmus test on appellant. He administered the test twice in each of appellant’s eyes and concluded the results were consistent with a person being “under the influence of a central nervous system depressant like alcohol.” After administering the tests, appellant was placed under arrest and taken to Doctor’s Medical Center for medical clearance and a blood test. John Alfter, senior criminalist with the California Department of Justice Central Valley Laboratory, analyzed the sample and testified the blood alcohol content was 0.24 percent.
Defense Evidence
Appellant testified on his own behalf. Appellant said he and four friends were traveling home from a Fresno wedding when the accident occurred. Appellant said Hector Reyes was the driver of the extended cab pickup truck, Dagoberto Martinez was the passenger in the back seat, and a Mr. Flores was the passenger in the right front seat. According to appellant, Reyes got out of the driver’s seat immediately after the accident and ran under the overpass. At the same time, three men got out of the truck and went to the passenger side of the vehicle. Two of those three passengers left the scene with friends who had been following them in another vehicle. Appellant said he was injured and was the last person to get out of the truck.
Appellant denied having any contact with Garrett or his wife and denied standing and urinating in front of the pickup truck. Appellant said he responded to a Spanish-speaking woman and said he was “okay” as he waited for police officers to arrive. Appellant pointed out that blood ran down the right side of his face. Officer Leap did not find obvious signs of blood in the truck interior. Appellant said Officer Leap pantomimed to inquire whether he was the driver of the truck. Appellant said he responded to her and indicated he was not the driver. Appellant said he did not have a driver’s license. Officer Leap did not find appellant in possession of keys to the truck. Appellant said he did not own the truck, which was registered to Juan Antonio Lopez Scott.
Appellant’s brother, Favian Perez, testified he and Hector Reyes were roommates prior to the accident and that Reyes had moved out in September 2009. Favian Perez said he spoke with Hector Reyes on October 27, 2009, and Reyes admitted being the driver of the pickup truck on the evening of the accident. Favian Perez said Reyes had relocated to Mexico and had not returned.
DISCUSSION
Appellant’s appointed appellate counsel has filed an opening brief that summarizes the pertinent facts, raises no issues, and requests this court to review the record independently. (People v. Wende (1979) 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel indicating that appellant was advised he could file his own brief with this court. By letter on September 13, 2010, we invited appellant to submit additional briefing. To date, he has not done so.
After independent review of the record, we have concluded there are no reasonably arguable legal or factual issues.
DISPOSITION
The judgment is affirmed.