Opinion
G056049
09-23-2019
THE PEOPLE, Plaintiff and Respondent, v. GILBERT TORRES, Defendant and Appellant.
Johanna Pirko, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Christine Y. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 17NF1989) OPINION Appeal from a judgment of the Superior Court of Orange County, Megan L. Wagner, Judge. Affirmed. Johanna Pirko, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Christine Y. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
INTRODUCTION
Defendant Gilbert Torres appeals after a jury found him guilty of, inter alia, driving with a blood alcohol concentration of .08 percent or more. Defendant's sole contention on appeal is the trial court erred by failing to instruct the jury sua sponte that attempted driving under the influence is a lesser included offense of driving under the influence.
We affirm. Even assuming attempted driving under the influence is a lesser included offense of driving under the influence, insufficient evidence supported giving that instruction in this case.
FACTS
At 5:15 p.m. on July 24, 2017, Dallis Warshaw had left her home and was driving down a nearby street to run errands when her husband, who was driving separately behind her, motioned to her to pull over. After Warshaw pulled over to the side of the road, her husband asked whether she had seen the vehicle "back there" that had appeared to have crashed. Warshaw told him she had not and said they should turn around and check on the situation. No more than 30 seconds later, Warshaw saw a car that was parked on but perpendicularly to the driveway of a residence in Yorba Linda. The front end of the vehicle was in the flower bed next to the driveway. A large rock, about half the size of the tire, appeared to be underneath and behind one of the car's front tires.
Warshaw saw a man later identified as defendant lying back on the reclined driver's seat of the car; the car door was open. Defendant appeared to be sleeping and had what appeared to be a fresh injury to his nose or forehead and blood on his face. Warshaw asked, "Sir, are you okay? Do you need help?" Defendant opened his eyes, sat up, and then stood up and said, "Yes, I'm okay." After defendant got out of the car, he fell onto Warshaw; she could smell the strong odor of alcohol on his breath. Warshaw caught defendant and stood him back up outside the car. He stood slightly hunched over. Warshaw suggested that defendant sit back down, and he sat down in the car. She asked defendant what had happened. Defendant told her he was fine and that they were at his parents' house. Defendant told Warshaw not to call the cops and that his father was on the way. Defendant also stated that he knew he should not drink and drive. Two empty beer cans, each one twice the size of a standard beer can, were inside the car.
Defendant got back up and was able to stand on his own. He stumbled around the property as Warshaw kept suggesting he sit or lie down; he fell frequently. Warshaw testified that she thought defendant was acting as though he were drunk. Warshaw asked if she could have his father's phone number to make sure he was on his way; defendant told Warshaw he was not going to give her that number.
Warshaw asked defendant where he had come from and he told her he had driven from a bar. He said he drove to his parents' house because he did not want to go back to the place where he was staying; he said people there were mean to him. Defendant seemed confused about where he was; at one point during his conversation with Warshaw, he seemed to think he was in the parking lot of the bar where he had been drinking.
Deputy Sheriff Phillip Santangelo of Yorba Linda Police Services was dispatched to the residence. As Santangelo approached defendant, he observed defendant to have a very unsteady gait. He smelled a strong odor of an alcoholic beverage emanating from defendant and saw defendant had bloodshot, watery eyes. Defendant was not able to formulate complete sentences and had slurred speech. Santangelo testified his observations of defendant showed characteristics and behaviors consistent with someone who was under the influence of alcohol. Santangelo called the paramedics because he saw abrasions on defendant's arms and face. Another officer found the keys to the car in a decorative planter by the front door of the residence after defendant told officers he had hidden them.
Santangelo subjected defendant to field sobriety tests to evaluate his level of intoxication. Defendant told Santangelo that he did not want to complete the tests. Santangelo thought that given defendant's unsteady gait, it would not be safe for defendant to complete the tests anyway. Santangelo and his partner had to help defendant from falling; they kept defendant sitting down most of the time they were speaking to him. A preliminary alcohol screening test administered at 5:56 p.m. showed defendant had a blood alcohol concentration of .210, and a second preliminary alcohol screening test administered a minute later showed defendant had a .200 blood alcohol concentration.
Defendant told a community service officer, who also had been dispatched to the residence, that he had been drinking on his way to his parents' house and was unaware he had collided with a rock next to the wall. Defendant told another officer that he did not drink until he had arrived at his parents' residence.
Defendant was arrested and thereafter consented to a blood test at the police substation; defendant's blood was drawn at 7:12 p.m. The blood test showed defendant had a blood alcohol concentration of .233 and a second test showed he had a blood alcohol concentration of .229.
PROCEDURAL HISTORY
Defendant was charged in an amended information with (1) driving under the influence of alcohol within 10 years of a prior felony conviction in violation of Vehicle Code section 23152, subdivision (a) (count 1); (2) driving with a blood alcohol concentration of .08 percent or more in violation of Vehicle Code section 23152, subdivision (b) with a prior felony within 10 years (count 2); and (3) driving a motor vehicle without a valid license in violation of Vehicle Code section 12500, subdivision (a) (count 3). The amended information alleged as to counts 1 and 2 that pursuant to Vehicle Code section 23538, subdivision (b)(2), defendant had a blood alcohol concentration of .20 percent or more. The amended information further alleged as to counts 1 and 2 that defendant had suffered two prior convictions for violating Vehicle Code section 23152, subdivisions (a) and (b).
The jury found defendant guilty on all three counts and found the Vehicle Code section 23538, subdivision (b)(2) blood alcohol concentration allegation true as to counts 1 and 2. The trial court found the prior conviction sentencing enhancement allegations true. The trial court imposed a total prison sentence of three years.
DISCUSSION
Defendant's sole contention on appeal is that the trial court erred by failing to instruct the jury sua sponte on attempted driving under the influence as a lesser included offense of driving under the influence.
The trial court is required to instruct the jury "sua sponte, on all theories of a lesser included offense which find substantial support in the evidence." (People v. Breverman (1998) 19 Cal.4th 142, 162.) No such instruction is required, however, "on theories that have no such evidentiary support." (Ibid.) Therefore, an instruction on a lesser included offense is not required "when the evidence shows that the defendant is either guilty of the crime charged or not guilty of any crime" (People v. Barton (1995) 12 Cal.4th 186, 196, fn. 5), and no instruction is required when "there is no proof, other than an unexplainable rejection of the prosecution's evidence, that the offense was less than that charged" (People v. Kraft (2000) 23 Cal.4th 978, 1063). "Speculation is insufficient to require the giving of an instruction on a lesser included offense." (People v. Mendoza (2000) 24 Cal.4th 130, 174.)
We do not need to address defendant's argument whether attempted driving under the influence is a lesser included offense of driving under the influence because there is no evidence showing that defendant had committed the former offense but not the latter offense. The evidence shows defendant was found in the driver's seat in a car that had collided with a large rock and a flowerbed; he had fresh wounds on his face and abrasions on his arms. He had bloodshot, watery eyes, was confused at times about where he was, slurred his speech, and had an unsteady gait. Defendant admitted to one officer that he had been drinking on his way to his parents' residence; two large empty beer cans were found in his car. Defendant does not dispute the results of his blood alcohol concentration tests.
While there is evidence defendant drove under the influence, there was no evidence defendant was preparing to drive while intoxicated after he was found by Warshaw. After that point in time, defendant did not put the keys in the ignition or otherwise attempt to start or move the car. Instead, he hid the keys in a decorative planter by the front door of the residence. If the jury believed defendant's statement to one of the officers that he did not drink until after he arrived at the residence, the proper verdict would have been an acquittal, not a conviction for attempted driving under the influence. (People v. Barton, supra, 12 Cal.4th at p. 196, fn. 5.)
Because there was no evidence supporting the finding defendant only attempted to drive under the influence, the court did not err in failing to instruct the jury sua sponte on the offense of attempting to drive under the influence.
DISPOSITION
The judgment is affirmed.
FYBEL, J. WE CONCUR: BEDSWORTH, ACTING P. J. THOMPSON, J.