Opinion
NOT TO BE PUBLISHED
Super. Ct. No. P06CRF0203
ROBIE, J.
While driving down a dark country road in the middle of the night, defendant Yvonne L. Tachine collided with another vehicle stopped in the road, injuring her passenger. Convicted of driving under the influence of alcohol causing injury and driving while having.08 percent or more blood-alcohol content causing injury, defendant appeals, contending there was insufficient evidence that she neglected a legal duty. Because we conclude the evidence was sufficient, we will affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On the evening of October 1, 2005, defendant and her friend, Elaine Starr, went to a local bar, the Hillsider, in El Dorado County. Defendant testified they arrived about 9:00 p.m. and Starr ordered her a drink. They left the Hillsider together at midnight and stopped at another bar, Pj’s. While at Pj’s, defendant testified she did not have anything additional to drink.
The two friends left Pj’s at 12:45 a.m. and headed westbound on Mother Lode Drive intending to stop for gas before going home. Defendant was the driver and Starr the passenger. Defendant drove her car down Mother Lode Drive, which was very dark without street lights, and set the cruise control at 52 miles per hour. She believed she was travelling at a safe speed and had sufficient time to avoid obstacles in the road, given the conditions. At approximately 1:00 a.m., however, she came upon a dark Jeep with no lights on parked in the middle of the westbound lane and collided with the rear of the Jeep, sending it into a ditch about 100 feet ahead. Both vehicles sustained major damage. Defendant was not injured, but Starr suffered injuries because she hit the windshield.
There is no evidence in the record establishing the legal speed limit on Mother Lode Drive.
Just before the collision, defendant was distracted from looking at the roadway ahead because she watched, “for a couple of minutes,” an eastbound vehicle in her rear and side view mirrors slow down and make a U-turn into the westbound lane. She noticed the Jeep only a “[s]econd before [the collision] happened” when Starr yelled out a warning and defendant turned to see the vehicle directly in front of them. Defendant immediately “jerked” her car to the left, but she did not have enough time to avoid hitting the Jeep.
The car defendant passed just before she collided with the parked Jeep was driven by Walter Sosa. Sosa testified he was driving eastbound on Mother Lode Drive when he suddenly came upon the parked Jeep sitting in the westbound lane with no lights on and apparently abandoned. He barely noticed the Jeep in the “pitch black” when his high beam lights slightly reflected off the vehicle’s front chromed headlights. Because Sosa believed the Jeep presented a danger, he intended to turn around and park behind it and engage his hazard lights as he was concerned someone would come along in the westbound direction and hit the Jeep. Unfortunately, however, before he turned his car around, Sosa saw defendant pass him and he thought “Oh, no.” He then saw no brake lights go on and then saw defendant’s lights go out as she hit the back of the Jeep. Sosa immediately pulled up behind the accident scene, rendered aid to defendant and Starr, and then called 911.
Sergeant Christopher Lane and Officer Tom Flahavan of the California Highway Patrol eventually arrived at the site of the collision. Sergeant Lane “smelled the strong odor of an alcoholic beverage” on defendant and noticed she had heavily slurred speech, as well as red and watery eyes. Defendant informed Sergeant Lane she had no physical impairment and she did not hit her head on anything during the collision. She also indicated she was using Norco and Flexeril medications for a back injury.
Norco is a narcotic analgesic for pain.
Flexeril is a muscle relaxant.
Suspecting defendant of driving under the influence, Sergeant Lane conducted five field sobriety tests at the scene and described details of defendant’s failure to perform certain aspects of these tests. At trial, defendant disputed that Sergeant Lane conducted some of the sobriety tests and at various times called his testimony inaccurate. However, defendant agreed that Sergeant Lane conducted two preliminary alcohol screening breathalyzer tests at the scene, both of which read.153 percent blood-alcohol content. Sergeant Lane subsequently placed defendant under arrest for driving under the influence. Once at the El Dorado County Jail, Sergeant Lane testified that defendant refused to allow a chemical test of her blood-alcohol content as required by law, but defendant testified to the contrary, stating she did not refuse any test.
At trial, a criminalist testified that to reach a.15 percent blood-alcohol content at 1:00 a.m., defendant would have had to have consumed about 5.8 alcoholic drinks beginning at 9:00 p.m.
Defendant was charged by information with driving under the influence of alcohol causing injury to Starr (count I; Veh. Code, § 23153, subd. (a)) and driving with a.08 percent or more blood-alcohol content causing injury to Starr (count II; Veh. Code, § 23153, subd. (b)), both felonies. The information further alleged that defendant refused to submit to, and failed to complete, chemical tests ordered by Sergeant Lane. As to all counts, the information alleged defendant had previously been convicted of misdemeanor driving under the influence in 1996.
The information also charged defendant with misdemeanor driving under the influence of alcohol and/or a drug on October 28, 2005, a separate incident, but the jury found defendant not guilty of that charge, so we do not discuss it further.
Defendant entered not guilty pleas and denied the special allegation. Defendant admitted the 1996 prior conviction. The jury ultimately found defendant guilty of counts I and II and concluded defendant refused to submit to a chemical test at jail on October 2, thus finding the special allegation true. The trial court placed her on probation for three years with 120 days in jail.
DISCUSSION
Defendant contends there was insufficient evidence that she neglected a legal duty that caused injury, as required for counts I and II. (Veh. Code, § 23153, subds. (a) & (b).) We disagree.
It is well established that “‘[t]o determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a trier of fact could find the defendant guilty beyond a reasonable doubt.’” (People v. Bolden (2002) 29 Cal.4th 515, 553, quoting People v. Kipp (2001) 26 Cal.4th 1100, 1128.) “[W]e presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence.” (People v. Carrasco (2006) 137 Cal.App.4th 1050, 1058.) Thus, “‘“‘[i]f the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.’” [Citations.]’” (People v. Stanley (1995) 10 Cal.4th 764, 793.)
Here, defendant was charged with two felony driving under the influence offenses that required the People to prove beyond a reasonable doubt that she did any act forbidden by law or neglected a legal duty while driving and thereby proximately caused bodily injury to Starr. (Veh. Code, § 23153, subds. (a) & (b).) The unlawful act or omission need not relate to any specific section of the Vehicle Code, but instead may be satisfied by proof of ordinary negligence. (People v. Weems (1997) 54 Cal.App.4th 854, 858; Veh. Code, § 23153, subd. (c).) However, the driver’s negligent behavior must be an additional act or omission beyond the driving of the vehicle under the influence or with a blood-alcohol content of.08 percent or more. (People v. Capetillo (1990) 220 Cal.App.3d 211, 216.)
The record shows the People’s case was based on a negligence theory.
Defendant essentially contends she was not at fault, arguing the abandoned Jeep caused the accident, not her behavior while driving. According to defendant, the jury improperly inferred she breached a legal duty and proximately caused injury from the fact she was intoxicated.
While it is clear the accident would not have happened if the Jeep was not parked on the road, this fact does not discredit the jury’s implied finding that defendant did not maintain ordinary care while driving and failed to act in a manner similar to a reasonably careful person under a like situation. In effect, defendant wants us to reweigh the evidence presented at trial and substitute our judgment for that of the jury. This is not our role as an appellate court. (People v. Culver (1973) 10 Cal.3d 542, 548.) “The test on appeal is not whether we believe the evidence at trial established the defendant’s guilt beyond a reasonable doubt, but whether ‘“‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’”’ [Citation.]” (People v. Provencio (1989) 210 Cal.App.3d 290, 306.)
The trial court instructed the jury using CALCRIM Nos. 2100 (count I) and 2101 (count II), which both state that the People had to prove defendant failed to “exercise ordinary care at all times and to maintain proper control of the vehicle.” The instructions further state a “person fails to exercise ordinary care if... she (does something that a reasonably careful person would not do in the same situation/ [or] fails to do something that a reasonably careful person would do in the same situation).” (CALCRIM Nos. 2100 & 2101.)
As to causation, the jury instructions provide in pertinent part: “[a]n act causes bodily injury to another person if the injury is the direct, natural, and probable consequence of the act [or neglect].... [A]n act causes bodily injury to another person only if it is a substantial factor in causing the injury....” (CALCRIM Nos. 2100 & 2101.) The People have the burden to present evidence reasonably supporting the inference that defendant’s neglect was a substantial factor in producing the injury, even though there may be more than one cause of injury. (People v. Scola (1976) 56 Cal.App.3d 723, 726.)
Under the instructions, the evidence adequately supports the jury’s implied finding that defendant’s actions and failures while driving were not reasonable under the circumstances and were a substantial factor -- albeit, not the only factor -- in producing Starr’s injuries. In particular, defendant drove 52 miles per hour on cruise control on a dark two-lane road without her high beam lights activated. Sosa testified he drove on similar roads and he used his high beams at night 99 percent of the time, including the night of the collision. Although the speed limit on Mother Lode Drive was not established at trial, a reasonable jury could have inferred 52 miles per hour was an unreasonable speed given the circumstances, especially without the use of high beam lights.
In addition, while continuing at this speed, defendant focused on Sosa’s car in her mirrors for an extended period of time -- “a couple of minutes” -- without keeping her eyes on the road ahead. While defendant is correct that ordinary care does not require a driver to have her “eyes glued to the road ahead,” it does require a driver to be alert and attentive to the road, and also to be prepared to avoid obstacles in the vehicle’s path. Here, however, the evidence illustrates defendant was not attentive because she was distracted for a significant period of time by Sosa’s vehicle, which substantiates the jury’s implied finding that defendant failed to drive in a careful and safe manner as a reasonable person would under the circumstances.
Importantly, as well, defendant’s blood-alcohol content was nearly twice the legal driving limit, suggesting her late jerking motion in response to Starr’s warning was delayed and obviously ineffective in avoiding the collision. Moreover, although defendant’s failure to apply her brakes before the collision is not dispositive of negligence, the jury nonetheless could have been persuaded her omission fell short of maintaining proper control of her vehicle.
The collective evidence in the record substantially supports the jury’s guilty verdicts based on the sufficiency of evidence principles articulated above. Notwithstanding, defendant attempts to equate People v. Hernandez (1990) 219 Cal.App.3d 1177 to this case, suggesting Hernandez stands for the proposition that a car left in the middle of a road is the sole cause of any resulting accident and injury. In Hernandez, the intoxicated defendant was found to have violated various provisions of the Vehicle Code and also the general duty “‘“to exercise ordinary care at all times to avoid placing himself or others in danger”’” and “‘“to use like care to avoid an accident,”’” when he stopped his truck in the middle of a freeway at night without his lights or emergency flashers turned on. (Hernandez, at pp. 1181, 1184-1185.) The court held substantial evidence supported the determination that the defendant was negligent and proximately caused the victims’ injuries when the sober Mrs. Algers -- and her passenger Mr. Algers -- collided into the back of the defendant’s truck. (Id. at pp. 1180, 1185.)
Hernandez is distinguishable from this case. In Hernandez, the issue was whether the driver of the stalled car was negligent, not whether the driver of the following car was negligent. Accordingly, since Hernandez did not address potential contributory negligence, if any, of the Algers, it does not stand for the proposition that the driver of the stalled car was the sole negligent cause of the accident.
Despite the fact that Hernandez does not state, or imply, that a parked car in the middle of a road is the only breach of duty and proximate cause of a resulting accident and injury, defendant seeks to bolster her argument by citing In re Whitlatch (1943) 60 Cal.App.2d 189 to apparently show that a court has rejected the inference a driver is negligent for crashing into a stationary vehicle. Defendant’s reliance on Whitlatch, however,is also misplaced. The question in that case was whether the driver operated his vehicle with “‘reckless disregard of or wilful indifference to the safety of others,’” thus being the proximate result of another person’s death. (Id. at pp. 191-192.) The court specifically noted that “something more than ordinary negligence is required to constitute [reckless disregard or willful indifference].” (Id. at 193-194.) The higher standard of conduct applied in Whitlatch is distinguishable from the lower negligence standard the jury applied here.
Defendant attempts to cast doubt on the sufficiency of evidence by referring to the People’s criminalist who testified at trial regarding a hypothetical similar to the facts of this case. The criminalist stated he would need more information about the circumstances to form a conclusion about a driver’s intoxication being responsible for colliding into a stopped car.
To the extent defendant challenges the jury’s decision based on the criminalist’s testimony, that challenge is not cognizable on appeal. Defendant’s attempt to leverage the expert’s uncertainty misses the point because our role is to determine if the jury’s verdict is supported by substantial evidence in the record, not to evaluate the strength of an expert’s testimony. The fact that the expert could not express an opinion as to whether the driver in the hypothetical was a proximate cause of the hypothetical collision did not prevent the jury from properly reaching its own conclusion that defendant was a cause of the collision with the Jeep.
The record is bare regarding who stopped the Jeep on Mother Lode Drive and why it was left on the road and abandoned without lights on. But it does not matter how or why the Jeep ended up in the middle of the road, even though it is unlawful to stop or leave standing a vehicle on a freeway, save a few exceptions. (Veh. Code, § 21718, subd. (a).) What matters is how defendant acted under the circumstances, especially since she was intoxicated.
The evidence at trial permitted a rational and reasonable trier of fact to find defendant guilty under Vehicle Code section 23153. The jury did indeed infer from the evidence that a reasonably careful person would have driven more cautiously and reacted more appropriately to Sosa’s slowing car and the Jeep’s positioning in the road. Again, the test for us on appeal is whether any rational trier of fact could have found the People proved each element of the crimes beyond a reasonable doubt. (People v. Provencio, supra, 210 Cal.App.3d at p. 306.) Substantial evidence supports the jurors’ findings here, and their inference is not simply speculation as defendant insinuates. Accordingly, defendant’s contention is without merit.
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND, P. J., BUTZ, J.