Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. BA316863, Robert J. Perry, Judge.
Marcia C. Levine, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, and Blythe J. Leszkay, Deputy Attorney General, for Plaintiff and Respondent.
MALLANO, P. J.
Ruben Velasquez appeals from the judgment entered following a jury trial in which he was convicted of gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5) and driving with a blood alcohol of 0.08 percent or more causing injury (Veh. Code, § 23153, subd. (b)). In a bifurcated court trial, defendant was found to have suffered two prior felony convictions (one of which was ultimately dismissed in furtherance of justice). Defendant was sentenced to a total term of 17 years to life. He contends that the trial court erred in denying his request to instruct the jury on vehicular manslaughter without intoxication. We affirm.
BACKGROUND
Around 1:00 a.m. on August 6, 2006, defendant was seen driving on Olympic Boulevard in East Los Angeles at 80 to 100 miles per hour, running a red light at the intersection of Atlantic Boulevard without attempting to stop. Defendant’s car hit a pickup truck, which in turn struck a third car. A passenger in defendant’s car, Martha Santiscoy, was severely injured in the crash and died in the hospital five days later.
Testing of blood drawn from defendant at 4:10 a.m. indicated a blood-alcohol content of 0.15 percent. Testing of blood drawn at 5:20 a.m. indicated a blood-alcohol content of 0.13 percent. An officer who was present when the second sample was taken testified that defendant had red, watery eyes and incoherent speech. The criminalist who tested the samples testified that, assuming a male of defendant’s weight who had stopped drinking by 12:30 a.m. had blood-alcohol levels of 0.15 percent at 4:10 a.m. and 0.13 percent at 5:20 a.m., his blood-alcohol level at 1:00 a.m. would have been between 0.15 and 0.21 percent.
In defense, an accident reconstruction expert testified that defendant was going 65 miles per hour at the time of the collision. Defendant did not testify.
DISCUSSION
At trial, defendant requested that the jury be instructed on lesser offenses that did not contain the element of intoxication of at least 0.08 percent blood alcohol. In support of this request, defense counsel took note of the three-hour time lapse between the accident and the first blood sample. Counsel argued that defendant could have started drinking shortly before 1:00 a.m. and therefore his blood-alcohol level might have been below 0.08 percent at the time of the accident and rose to higher levels only later. The trial court denied defendant’s request on the ground that instructions on lesser offenses were not supported by substantial evidence. We conclude that this ruling was proper.
The trial court has a sua sponte duty to instruct “on all theories of a lesser included offense which find substantial support in the evidence. On the other hand, the court is not obliged to instruct on theories that have no such evidentiary support.” (People v. Breverman (1998) 19 Cal.4th 142, 162.) “[T]he existence of ‘any evidence, no matter how weak’ will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is ‘substantial enough to merit consideration’ by the jury. [Citations.]” (Ibid.) “‘Substantial evidence is evidence sufficient to “deserve consideration by the jury,” that is, evidence that a reasonable jury could find persuasive.’ [Citation.]” (People v. Lewis (2001) 25 Cal.4th 610, 645.) “Speculation is an insufficient basis upon which to require the giving of an instruction on a lesser offense. [Citations.]” (People v. Wilson (1992) 3 Cal.4th 926, 941.)
Defendant’s theory regarding how his blood-alcohol level could have been less than 0.08 percent at the time of the accident is based solely on speculation. (See, e.g., People v. Wilson, supra, 3 Cal.4th at p. 940 [instruction on lesser offense of second degree murder not required even though circumstantial evidence did not conclusively establish that murder was committed during the course of a robbery].) Accordingly, defendant’s contention must be rejected.
DISPOSITION
The judgment is affirmed.
We concur: ROTHSCHILD, J., NEIDORF, J.
Retired Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.