Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 07F6265
SCOTLAND, P. J.
A jury convicted defendant Brian Edward Counts of driving under the influence of alcohol (DUI) and of driving with a blood alcohol level at or above .08 percent, and found that he drove while his blood alcohol level exceeded .20 percent. (Veh. Code, §§ 23152, subds. (a) & (b), 23578.) Finding that defendant had a prior felony DUI conviction within 10 years of the current offense (Veh. Code, § 23550.5) and had served a prior prison term (Pen. Code, § 667.5, subd. (b)), the trial court sentenced him to prison for four years.
On appeal, defendant contends there is insufficient evidence to support his DUI conviction and the People failed to establish the corpus delicti of the crime. We disagree and shall affirm the judgment.
FACTS
Kary Calantropio testified that at about 6:30 to 7:00 a.m. on May 18, 2007, she saw a truck stuck on “a really bad” dirt road, with big ruts, and “someone laying [sic] on the ground” near the truck. The person “just was kind of rolling around and scratching himself, so he didn’t look like he was hurt.” Thinking the man was drunk, she and her husband called 9-1-1 to report the situation. Calantropio, who lived in a home overlooking the area, did not see the truck there when she went to bed between 10:00 to 11:00 p.m. the night before.
California Highway Patrol Officer James Lindquist arrived about 20 minutes after receiving the report. The right wheels of the pickup truck were in a ditch, and defendant--who smelled of alcohol--“was using the vehicle to support himself.” His wheelchair was in the bed of the truck and some empty beer cans, “maybe six,” were in the truck’s cab and bed. Lindquist walked a 10 to 15 foot radius around the truck to look for “any other items” of interest but saw nothing. The truck engine was cool, indicating it had been there for “probably an hour or more.”
Defendant told Officer Lindquist that the “sol[e]noid had gone out in his truck.” When asked if he had been drinking, defendant replied “all the time” and said that he had “shared a 12-pack” of beer. He explained that he had driven there during darkness, but was unable to say what specific time he did so. When Lindquist tried to arrest him, defendant “pulled away and became very belligerent.” Because of defendant’s size, approximately 300 pounds, Lindquist called for backup.
While Officer Lindquist waited about 10 to 15 minutes for backup, defendant told Lindquist that he “couldn’t arrest him because [defendant] was on private property” and that Lindquist was going to be sued and fired. Defendant also made “a series of remarks trying to intimidate [Lindquist].”
When backup arrived, the officers used defendant’s wheelchair to put him in the back seat of a patrol car. Defendant tried to kick out the windows and had to be restrained.
Officer Curtis Rhyne testified defendant “was extremely intoxicated,” uncooperative, profane, and combative. At the station, defendant refused to take a breath test, so a sample of his blood was drawn at 9:40 a.m., showing a blood alcohol level of .25 percent.
A forensic alcohol examiner testified that a person of defendant’s size would gain .01 percent of blood alcohol for every standard drink (meaning, 12 ounces of beer or wine or an ounce of hard liquor) and would burn off .02 percent of blood alcohol every elapsed hour. Assuming defendant had no drinks between 7:00 a.m. and the time of the blood draw at 9:40 a.m., he would have had a reading of about .29 percent at 7:40 a.m., the equivalent of 29 beers for a man of his size.
DISCUSSION
I
Defendant concedes that, viewing the evidence and reasonable inferences in the light most favorable to the verdict (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), there was substantial evidence that he “drove and that he was drunk”; however, he argues there was no evidence he “drove while he was drunk (or over the statutory limit of 0.08 percent [blood alcohol content]).” (Orig. italics.) We disagree.
Although there was no direct evidence that he drove while under the influence of alcohol, there was compelling circumstantial evidence of that fact. (See People v. Maury (2003) 30 Cal.4th 342, 396 [we “accept logical inferences that the jury might have drawn from the circumstantial evidence”].)
Defendant’s truck was stuck on a bad road. Defendant, who uses a wheelchair, was first seen on the ground. The wheelchair was found in the bed of the truck. At most, six empty beer cans were in the truck. Forensic evidence indicated his blood alcohol level was .29 percent soon after he was first seen on the ground. Even if he had rapidly drank six beers sometime after his truck became stuck, that would have added only .06 percent to his blood alcohol level.
The reasonable inferences are that (1) an amount of alcohol causing his blood alcohol level to exceed .08 percent and making him under the influence of alcohol was consumed by defendant before he drove to the location, and (2) when his truck became stuck, he got out, either to try to free the truck or get assistance, but instead passed out.
There is no evidence that defendant wheeled himself somewhere else to drink massive quantities of alcohol, then returned and put the wheelchair back in the truck bed. Although Officer Lindquist did not do an exhaustive search of the area, he looked around the truck and did not see any other bottles or cans. The mere unlikely possibility that,after his truck became stuck, defendant drank large quantities of alcohol and discarded the empty containers away from the truck does “not warrant reversal of the judgment.” (People v. Proctor (1992) 4 Cal.4th 499, 528-529.)
II
Defendant claims the People failed to prove the corpus delicti of driving under the influence of alcohol. This is so because, in his view, “without evidence of [defendant’s] statements [to Officer Lindquist], the state cannot make a prima facie case that any crime occurred, let alone that [he] committed it[.]” (Orig. italics.) The contention fails.
“In every criminal trial, the prosecution must prove the corpus delicti, or the body of the crime itself . . . [and] the prosecution cannot satisfy this burden by relying exclusively upon the extra judicial statements, confessions, or admissions of the defendant.” (People v. Alvarez (2002) 27 Cal.4th 1161, 1168-1169.) The corpus delicti rule does not require direct evidence. “The independent proof may be circumstantial and need not be beyond a reasonable doubt, but is sufficient if it permits an inference of criminal conduct, even if a noncriminal explanation is also plausible. [Citations.] There is no requirement of independent evidence ‘of every physical act constituting an element of an offense,’ so long as there is some slight or prima facie showing of injury, loss, or harm by a criminal agency.” (Id. at p. 1171; see People v. Jones (1998) 17 Cal.4th 279, 301-302 [“we have described this quantum of evidence as ‘slight’ [citation] or ‘minimal’ [citation]. The People need make only a prima facie showing ‘“permitting the reasonable inference that a crime was committed.”’ [Citations.] The inference need not be ‘the only, or even the most compelling, one . . . [but need only be] a reasonable one’”].)
“The corpus delicti of the offense of driving under the influence consists of proof that the automobile was being driven by some person who was under the influence of alcohol.” (People v. Martinez (2007) 156 Cal.App.4th 851, 855; People v. Bowen (1992) 11 Cal.App.4th 102, 106.)
The fact defendant’s truck was found stuck establishes that someone drove it to the location. The fact defendant was the only person in the area, and was intoxicated, as shown by the chain of inferences (excluding defendant’s statements) described in Part I, ante, gives rise to a reasonable inference that defendant drove the truck while under the influence of alcohol. This was sufficient to establish the corpus delicti of DUI. (People v. Scott (1999) 76 Cal.App.4th 411, 413-414, 418 [corpus delicti established by the evidence that officers found a car parked on remote road with one tire off and that Scott, the only person there, was under the influence of alcohol]; People v. Komatsu (1989) 212 Cal.App.3d Supp. 1, 4 [“the intoxicated defendant was the only person found in or around” the vehicle]; see People v. Martinez, supra, 156 Cal.App.4th at pp. 855-856 [Martinez was intoxicated, and the only other plausible driver was buckled into passenger seat]; People v. McNorton (2001) 91 Cal.App.4th Supp. 1, 5-6 [both plausible drivers were intoxicated; corpus delicti was established because identity of perpetrator is not part of the corpus delicti]; People v. Ellena (1924) 67 Cal.App. 683, 686 [all plausible drivers were drunk].)
DISPOSITION
The judgment is affirmed.
We concur: HULL, J., BUTZ, J.