Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Contra Costa County Super. Ct. No. 050412056
Rivera, J.
Defendant Dezaray Delgado appeals a judgment entered upon a jury verdict finding her guilty of driving under the influence, causing injury (Veh. Code, § 23153, subd. (a)) and driving with a blood-alcohol level of .08 percent or more (§ 23153, subd. (b)). Her counsel has filed an opening brief raising no issues and asking this court for an independent review of the record to determine whether there are any arguable issues. (People v. Wende (1979) 25 Cal.3d 436.) Defendant has been apprised of her right to file a supplemental brief, but has not done so.
All undesignated statutory references are to the Vehicle Code.
Defendant was charged by information with two felony offenses: doing an unlawful or negligent act while driving a motor vehicle while the influence of an alcoholic beverage and a drug, causing bodily injury to Scott Kambic and Masha Rosenthal (§ 23153, subd. (a)); and doing an unlawful or negligent act while driving with a blood-alcohol level of .08 percent or more, causing bodily injury to Kambic and Rosenthal (§ 23153, subd. (b)). The information also alleged great bodily injury enhancements. (Pen. Code, § 12022.7, subd. (a).)
The evidence at trial showed that in the early hours of New Year’s Day, 2004, Kambic and Rosenthal were driving on Highway 4. A car came up behind them at high speed and struck them from behind. The victims’ car struck the center divide and crossed two lanes of the freeway, went up an embankment, and rolled back down, coming to rest on the shoulder of the highway. Defendant almost immediately got out of the driver’s side of the car that had caused the accident, came up to the victims’ car, and said, “I’m sorry,” “Happy New Year,” and “May I give you a hug?”
A motorist who stopped at the accident scene saw defendant’s companion, Michael Pellitier, slumped in the passenger seat of the car that had caused the collision, then saw him drive the car quickly forward for about 20 or 30 feet, leaving defendant on the shoulder of the freeway, then stop.
Rosenthal suffered a hematoma and back pain, and had fragments of glass in her mouth and throat. She was taken to the hospital, and released at about noon the same day. She later saw an orthopedic specialist at least three times for her injuries, and wore a cast or brace for about three weeks. She attended physical therapy for about six weeks, and took medication for pain for about seven months.
Kambic had pain in his back, shoulder, and chest after the accident. He spent six days in the hospital receiving treatment for a heart murmur. After being released from the hospital, he had two incidents of fainting, and was taken to the hospital again. Afterwards, he began seeing a cardiologist for the first time. After about three months, he had largely recovered from the effects of the accident.
Officer Scott Deschenes of the California Highway Patrol was called to the accident scene. He saw defendant, who told him she had been the driver of one of the cars. She told him that she was not sure how the accident had happened and that she had not seen the victims’ vehicle. Defendant’s speech was slurred, and Deschenes could smell alcohol on her breath. She had red, watery eyes, and was swaying slightly. Pellitier also appeared intoxicated. Defendant told Deschenes she had had only one drink that night, a Kamikaze, at the Legends bar in Antioch. Deschenes had defendant carry out several field sobriety tests, which she performed poorly. Deschenes administered a preliminary alcohol screening test; the first reading indicated a blood-alcohol level of .07 percent, and the second .10 percent. A breath test taken at the police station indicated a blood-alcohol level of .10 percent. A female of defendant’s weight with that blood-alcohol level would have had approximately 2.6 drinks, plus or minus one drink. A Kamikaze is the equivalent of about two drinks, depending on how it is made.
Defendant presented evidence that she had been at the Legends bar with Pellitier on New Year’s Eve. There, she met and danced with another man, James Cayoa. Cayoa thought Pellitier looked upset. Cayoa saw Pellitier and defendant go outside and appear to have an argument. He then saw Pellitier “bolt out” to the parking lot with keys in his hand, and saw defendant following him.
Defendant’s mother testified that she had taught defendant to drive, and that defendant did not know how to drive a stick-shift car. Pellitier’s car had a stick shift.
Defendant testified that she had driven her car to the home of Pellitier, who was her off-and-on boyfriend, in the evening of New Year’s Eve. Her car had an automatic shift, and she had never learned to drive a stick-shift car successfully. Pellitier drove her in his car to the bar. His driver’s license had been suspended because of previous convictions of driving under the influence. She had approximately half a drink while they were at the bar. Pellitier became upset after trying unsuccessfully to dance with another woman, left the bar, got into his car, and started the engine. Defendant followed him and got in to the passenger seat of the car. Pellitier drove the car recklessly. Pellitier’s car hit the victims’ car, and Pellitier told defendant to switch seats with him and say that she had been the driver. She did so. She then got out the driver’s side door and went to the victims’ car, telling them she was glad they were alive, saying “Happy New Year’s,” and asking to give them a hug.
After the jury had retired to deliberate, one of the jurors reported to the court that during a lunch break, she had overheard the cell phone conversation of a man who had been in the courtroom. He said something to the effect of, “[S]he’s going to go to jail though, but I know she didn’t do it,” or “[S]he’s going to go to jail for me.” The juror did not know if the man was Pellitier. She was excused from further participation in the case.
The jury found defendant guilty of both counts, and found it true that she had inflicted great bodily injury on Kambic but not true that she had inflicted great bodily injury on Rosenthal.
Defendant initially indicated she intended to move for a new trial on various grounds, among them the possibility that the juror who was excused after overhearing the cell phone conversation might have new evidence. However, after reviewing the trial transcripts, defendant’s attorney did not file such a motion.
The trial court placed defendant on probation for three years, on condition that she serve six months in county jail, pay a fine of $1,400, a restitution fine of $200 pursuant to Penal Code section 1202.4, and a court security fine of $20, and obey the terms of her probation.
There are no meritorious issues to be argued.
Disposition
The judgment is affirmed.
We concur: Reardon, Acting P. J., Sepulveda, J.