Opinion
1:21-cv-00195-JLT (HC)
06-28-2021
PAUL MARK FREEMAN, Petitioner, v. XAVIER BECERRA, Attorney General, Respondent.
FINDINGS AND RECOMMENDATION TO DENY PETITION FOR WRIT OF HABEAS CORPUS
[THIRTY-DAY OBJECTION DEADLINE]
JENNIFER L. THURSTON CHIEF UNITED STATES MAGISTRATE JUDGE
Petitioner was convicted by jury trial for DUI, with a prior, and is serving a sentence of eight years and four months. He filed the instant habeas petition challenging the conviction and sentence. As discussed below, the Court finds the claims to be without merit and recommends the petition be DENIED.
I. PROCEDURAL HISTORY
Petitioner is in custody pursuant to a Stanislaus County Superior Court judgment imposing a term of eight years and four months after jury conviction for DUI, with a prior, inter alia. (Doc. 9 at 2.) Petitioner appealed to the California Court of Appeal, Fifth Appellate District (“Fifth DCA”), and held that “[t]he abstract of judgment must be corrected as to No. 1491573, to reflect defendant's conviction in count 2 of driving with a blood-alcohol level of 0.08 or greater in violation of section 23152, subdivision (b), and that the consecutive sentence of eight months was stayed pursuant [to] Penal Code section 654.” (LD 7-12); People v. Freeman, No. F077543, 2020 Cal.App. Unpub. LEXIS 6501, at *48 (Oct. 6, 2020). The Fifth DCA affirmed the judgment in all other respects. Id. Subsequently, the Fifth DCA entered an order modifying the opinion and denying rehearing. (LD 7-13); People v. Freeman, No. F077543, 2020 Cal.App. Unpub. LEXIS 7324 (Nov. 3, 2020). On December 30, 2020, the California Supreme Court denied discretionary review. (LD 7-14); People v. Freeman, No. S265559, 2020 Cal. LEXIS 8866 (Dec. 30, 2020).
On February 17, 2021, Petitioner filed the instant habeas petition in this Court (Doc. 1.) Respondent filed an answer on April 19, 2021. (Doc. 9). On June 16, 2021, Petitioner filed a traverse. (Doc. 12.)
II. FACTUAL BACKGROUND
The Court adopts the Statement of Facts in the Fifth DCA's unpublished decision
(No. 1431988)
On January 14, 2011, defendant was driving with his fiancée after leaving a bar. Defendant lost control of the car, swerved, veered to the right, spun out, and hit a light pole. Defendant and his fiancée were ejected. She suffered "significant injuries" including fractures in two vertebrae, a fractured pelvis, and a "likely brain injury." Defendant's blood-alcohol content was determined to be 0.22 percent. Defendant admitted drinking Red Bull and vodka.
On May 1, 2012, a complaint was filed that charged defendant with count 1, felony DUI causing injury (§ 23153, subd. (a)), and count 2, felony driving with a blood-alcohol content of 0.08 percent or higher causing injury (§ 23153, subd. (b)), with special allegations that his blood-alcohol level was 0.15 percent or higher (§ 23578), and the victim suffered great bodily injury (Pen. Code, § 12022.7, subd. (a)).
On May 18, 2012, defendant pleaded no contest to count 1, felony DUI causing injury (§ 23153, subd. (a)) and admitted the special allegations that his blood-alcohol level was 0.15 percent or higher and the victim suffered great bodily injury. The court dismissed the other allegations, suspended sentence, and placed him on felony probation for five years subject to certain terms and conditions, including serving 180 days in jail, obeying all laws, and not consuming alcohol.
THE COLLISION AT THE TRAFFIC LIGHT
(No. 1491573)
On the night of August 22, 2015, Ms. Gutierrez was driving on Burney Street in Modesto in her Chrysler Town and Country van. She stopped at a red light at the corner of G Street. There was a car in front of her that also stopped at the intersection.
At the moment the traffic light changed to green, the car in front of her drove forward. Before Ms. Gutierrez could move forward, her vehicle was suddenly hit from behind by another vehicle. The impact forced her knees to hit the steering column. She felt immediate pain in her arms as she was pushed forward.
Ms. Gutierrez turned onto G Street and parked her vehicle. Ms. Gutierrez testified it was dark, but the area was illuminated by streetlights. The driver of the second car also turned onto G. Street, but the driver did not stop, roll down his window, or try to make contact with Ms. Gutierrez. Instead, the vehicle drove around the driver's side of Ms. Gutierrez's car and left the area. As the vehicle drove past her, Ms. Gutierrez determined it was a dark-colored Chrysler 300 with "nice shiny rims." She recognized the model because she had been interested in buying that type of car.
As the Chrysler 300 drove by her, Ms. Gutierrez was also able to see the driver "for a quick second" because he looked at her. She described a man with "darker hair" and "not a dark complexion but not a light complexion either." She saw the driver's face "very quickly" until the driver placed his hand over his face and obstructed her view.
As the Chrysler 300 drove away, Ms. Gutierrez tried to signal the driver by honking her horn. He did not stop and kept driving, and he was going "too fast, like swerving away." He drove toward the La Loma area and never returned to the scene.
The initial investigation
At 10:50 p.m., Modesto Police Officer David Chamberlain received a dispatch to respond to a hit and run collision at the intersection of Burney and G Street in the La Loma area. At 11:09 p.m., Chamberlain arrived at the scene and contacted Ms. Gutierrez.
Officer Chamberlain testified Ms. Gutierrez reported a dark car with chrome rims hit her vehicle, and a dark-skinned male with short hair drove it. Chamberlain determined her vehicle had minor damage from the rear-end collision. Chamberlain reported the incident as a noninjury collision because Ms. Gutierrez did not appear injured or ask for an ambulance.
Ms. Gutierrez was never asked to identify anyone as the driver and testified she would not be able to do so.
Ms. Gutierrez's injuries
Ms. Gutierrez testified she suffered bruises on her chest from the seat belt. She did not go to the hospital that night. A few days after the crash, Ms. Gutierrez felt bursitis in her right hip from being forced against the seat belt. Her legs started to hurt and swell, and she had trouble walking. She went to her physician and received cortisone shots. At the time of trial, she limped and continued to have leg and hip pain. Ms. Gutierrez's physician testified the bursitis in her hip was unlikely to improve over time and could lead to arthritis.
Defendant's collision with the parked truck
On the same night, Shelley Farmer was at her home in Modesto. Her husband's unoccupied white truck was parked on the street in front of their house. Ms. Farmer heard a big crash. She looked outside and saw that a black or dark blue vehicle had just hit her husband's truck with such force that the truck had been pushed forward by two houses, veered right, and ended up on a neighbor's lawn. The truck was totaled.
Ms. Farmer testified the vehicle that hit the truck was a "really nice car" with "nice rims," and it was "in pieces" because of the collision.
Ms. Farmer told her family to call 911 and ran out to the car that caused the collision. The driver was the only occupant, and he was sitting in the car. He had dark hair.
Ms. Farmer asked the driver if he was okay. The driver, later identified as defendant, was "really, really confused. He said he was being chased and that's why he was going so fast. They wanted his rims. I did ask if he was drinking because I could smell it. He said he did have a couple of drinks, and I asked if he had car insurance, and he said yes."
Tim McDonald, another neighbor, approached the car and talked to defendant, who was still in the driver's seat. He seemed calm but was searching around the interior for his belongings. McDonald asked if he was okay. Defendant said he was alright, but also said he was being chased by someone in a green car. McDonald asked if the neighborhood residents were safe from whoever was chasing him, and defendant said it was okay.
Arrest of defendant
At 10:45 p.m., Modesto Police Officer David Wallace received a dispatch to respond to Ms. Farmer's house about a collision. Ms. Farmer's house was in the La Loma residential area, and between a quarter to a half-mile from the intersection of Burney and G Street, where Ms. Gutierrez's vehicle had been hit. Wallace had heard on the radio about another collision nearby.
Ms. Farmer's house was also about a mile from a large music event known as "X Fest 2015" that was happening in downtown Modesto that night. The annual event required extra police presence and roving DUI patrols because of the high number of drunk drivers leaving the event.
Officer Wallace arrived at Ms. Farmer's house and found defendant sitting in the driver's seat of a 2007 black Chrysler 300. Wallace testified defendant seemed impaired. His eyes were bloodshot and watery, the odor of alcohol was on his breath, and his speech was slurred. Defendant was argumentative and staggering.
Ceres Police Officer Keith Kitcher was on patrol as part of that night's extra DUI enforcement and received a dispatch at 10:50 p.m. to respond to Ms. Farmer's house. When he spoke to defendant, he immediately noticed defendant's eyes were red and watery, detected the relatively strong odor of an alcoholic beverage on his breath, and believed he was impaired.
Officer Kitcher conducted two field sobriety tests and defendant's reactions were consistent with being under the influence.
Defendant was arrested. Defendant submitted two breath tests at the scene. The first test was given at 11:20 p.m. and the second was given about five minutes later. Both tests showed that defendant had a 0.35 percent blood-alcohol level. Officer Kitcher testified it would not have been safe for a person to drive at that level.
A criminalist testified a person with a 0.35 percent blood-alcohol content at 11:30 p.m. would have reached that level after consuming 16 to 17 standard alcoholic beverages, and he would not have been able to safely drive. The same person's blood-alcohol level would have been 0.36 percent at 10:00 p.m. or 10:30 p.m., and he would have been too impaired to drive.
The Chrysler 300 part found in Ms. Gutierrez's vehicle
Ms. Gutierrez testified that the day after the collision, she found a piece of the vehicle that hit her in her own vehicle.
Edgar Alcala, who worked for the parts department at Central Valley Chrysler, examined the vehicle piece recovered from Ms. Gutierrez's van. Mr. Alcala was familiar with Chrysler models, and testified the piece was from a Chrysler based on its emblem, and the part number on the piece was consistent with being from either a Chrysler 300 LX or a Charger.
Mr. Alcala looked at photographs of defendant's car, and testified it was a Chrysler 300 LX. The car's rims were not standard and had been purchased and installed "after market." He had never seen a Chrysler that had been outfitted with those types of rims.People v. Freeman, 2020 Cal.App. Unpub. LEXIS 6501, at *4-11.
III. DISCUSSION
A. Jurisdiction
Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n. 7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the United States Constitution. The challenged conviction arises out of the Stanislaus County Superior Court, which is located within the jurisdiction of this court. 28 U.S.C. § 2254(a); 28 U.S.C.§ 2241(d).
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320 (1997) (holding the AEDPA only applicable to cases filed after statute's enactment). The instant petition was filed after the enactment of the AEDPA and is therefore governed by its provisions.
B. Legal Standard of Review
A petition for writ of habeas corpus under 28 U.S.C. § 2254(d) will not be granted unless the petitioner can show that the state court's adjudication of his claim: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d); Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003); Williams, 529 U.S. at 412-413.
A state court decision is “contrary to” clearly established federal law “if it applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases, or “if it confronts a set of facts that is materially indistinguishable from a [Supreme Court] decision but reaches a different result.” Brown v. Payton, 544 U.S. 133, 141 (2005) (citing Williams, 529 U.S. at 405-406).
In Harrington v. Richter, 562 U.S. 86, 101 (2011), the U.S. Supreme Court explained that an “unreasonable application” of federal law is an objective test that turns on “whether it is possible that fairminded jurists could disagree” that the state court decision meets the standards set forth in the AEDPA. The Supreme Court has “said time and again that ‘an unreasonable application of federal law is different from an incorrect application of federal law.'” Cullen v. Pinholster, 563 U.S. 170, 203 (2011). Thus, a state prisoner seeking a writ of habeas corpus from a federal court “must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility of fairminded disagreement.” Harrington, 562 U.S. at 103.
The second prong pertains to state court decisions based on factual findings. Davis v. Woodford, 384 F.3d 628, 637 (9th Cir. 2003) (citing Miller-El v. Cockrell, 537 U.S. 322 (2003)). Under § 2254(d)(2), a federal court may grant habeas relief if a state court's adjudication of the petitioner's claims “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Wiggins v. Smith, 539 U.S. 510, 520 (2003); Jeffries v. Wood, 114 F.3d 1484, 1500 (9th Cir. 1997). A state court's factual finding is unreasonable when it is “so clearly incorrect that it would not be debatable among reasonable jurists.” Jeffries, 114 F.3d at 1500; see Taylor v. Maddox, 366 F.3d 992, 999-1001 (9th Cir. 2004), cert.denied, Maddox v. Taylor, 543 U.S. 1038 (2004).
To determine whether habeas relief is available under § 2254(d), the federal court looks to the last reasoned state court decision as the basis of the state court's decision. See Ylst v. Nunnemaker, 501 U.S. 979, 803 (1991); Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). “[A]lthough we independently review the record, we still defer to the state court's ultimate decisions.” Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).
The prejudicial impact of any constitutional error is assessed by asking whether the error had “a substantial and injurious effect or influence in determining the jury's verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623 (1993); see also Fry v. Pliler, 551 U.S. 112, 119-120 (2007) (holding that the Brecht standard applies whether or not the state court recognized the error and reviewed it for harmlessness).
C. Review of Petition
Petitioner raises the following claims for relief in the instant petition: (1) The trial court incorrectly instructed the jury on the lesser included offenses; and (2) That the state court erred in its application of state sentencing law.
1. Instructional Error
Petitioner argues that his convictions of driving under the influence of alcohol should be reversed because the trial court failed to instruct the jury that its verdict on any lesser included offenses must be based upon the same facts as the greater offenses. Petitioner raised this claim on direct review in the state courts. In the last reasoned decision, the appellate court denied the claim as follows:
I. Defendant was Properly Convicted of the Lesser Included Offenses
Defendant contends his convictions on the lesser included offenses for counts 1 and 2 must be reversed because he never received notice of the facts upon which these convictions were based in violation of his due process rights. Defendant's argument is based on the following premise.
Based on the collision with Ms. Gutierrez's vehicle, defendant was charged with count 1, felony driving under the influence causing injury (§ 23153, subd. (a)); count 2, felony driving with a blood-alcohol level of 0.08 percent or more causing injury (§ 23153, subd. (b)); and count 3, felony hit-and-run resulting in injury; he was not charged with any offenses for hitting the parked truck. At trial, defendant did not testify, but defense counsel contested his identity as the person
who drove the vehicle that collided with Ms. Gutierrez at the traffic light. Counsel conceded Ms. Gutierrez suffered injury as a result of that incident. Counsel also conceded defendant was driving the car that hit the unoccupied parked truck and he was intoxicated. The jury found defendant not guilty of all three charged felonies. As to counts 1 and 2, however, the jury found him guilty of the lesser included offenses that it had been instructed with: misdemeanor simple driving under the influence (§ 23152, subd. (a)), and misdemeanor driving with a blood-alcohol level of 0.08 percent or more (§ 23152, subd. (b)).
Defendant further asserts that since he conceded all the elements of the charged DUI felonies for colliding with Ms. Gutierrez, except his identity as the driver, the jury found him not guilty of the three charged felonies because it decided he was not the driver, and it never should have considered the lesser included offenses.
Defendant further asserts the only way the jury convicted him of the lesser included misdemeanor DUI offenses for counts 1 and 2 was because it improperly relied on the prosecution's evidence that he crashed into the unoccupied parked truck while intoxicated. Defendant argues the jury's likely reliance on the parked truck collision was consistent with finding him guilty of the lesser included misdemeanor offenses of DUI without finding anyone was injured: "The only explanation for the verdicts is that they were based on the second accident with the parked [truck]. That conduct was not part of the facts of the 'Gutierrez' accident and, thus, could not legally form the basis for convictions of the lesser included offenses. The jury was not instructed that they could not base their verdict on the 'parked-car' accident." Defendant further asserts: "As far as the jury knew, either accident was available for its consideration and could constitute the factual basis for conviction on the lesser offenses."
As we will explain, the entirety of the record refutes defendant's assumptions and speculation about the jury's verdicts on the lesser included offenses.
A. Lesser Included Offenses
"[A]n offense expressly alleged in an accusatory pleading may necessarily include one or more lesser offenses." (People v. Birks (1998) 19 Cal.4th 108, 117, 77 Cal.Rptr.2d 848, 960 P.2d 1073.) "A defendant may be convicted of an uncharged crime if, but only if, the uncharged crime is necessarily included in the charged crime. [Citations.] The reason for this rule is settled. '"This reasoning rests upon a constitutional basis: 'Due process of law requires that an accused be advised of the charges against him in order that he may have a reasonable opportunity to prepare and present his defense and not be taken by surprise by evidence offered at his trial.' [Citation.]"' [Citation.] The required notice is provided as to any charged offense and any lesser offense that is necessarily committed when the charged offense is committed. [Citation.]" (People v. Reed (2006) 38 Cal.4th 1224, 1227, 45 Cal.Rptr.3d 353, 137 P.3d 184.)
The trial court has a sua sponte duty to instruct on lesser included offenses when the evidence raises a question whether all of the elements of the charged offense were present. (People v. Breverman (1998) 19 Cal.4th 142, 154, 162, 77 Cal.Rptr.2d 870, 960 P.2d 1094; People v. Eid (2014) 59 Cal.4th 650, 656, 174 Cal.Rptr.3d 82, 328 P.3d 69.) "[A] lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser. [Citations.]" (People v. Birks, supra, 19 Cal.4th at pp. 117-118, fn. omitted.)
As relevant to this case, subdivision (a) in both section 23152 and section 23153 prohibit individuals from driving while under the influence. Similarly, subdivision (b) in both section 23152 and section 23153 prohibit individuals from driving with a blood-alcohol level of 0.08 percent or more. In addition to these elements, a conviction for violating either subdivision of section 23153 requires the prosecution to prove the defendant "concurrently [did] any act forbidden by law, or neglect[ed] any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver." (§ 23153, subds. (a), (b).) These additional elements are not required to prove a violation of either subdivision of section 23152. (§ 23152, subds. (a), (b).)
Based on the statutory elements, simple driving under the influence in violation of section 23152, subdivision (a), is a lesser included offense of driving under the influence causing injury in violation of section 23153, subdivision (a). The same is true for section 23152, subdivision (b) and section 23153, subdivision (b). (See, e.g., People v. Capetillo (1990) 220 Cal.App.3d 211, 220-221, 269 Cal.Rptr. 250; People v. Subramani (1985) 173 Cal.App.3d 1106, 1111, 219 Cal.Rptr. 644.)
B. Instructions
In this case, the jury was instructed that the prosecution had the burden of proving the elements of the charged offenses beyond a reasonable doubt. As to count 1, the jury received CALCRIM No. 2100 on the elements of driving under the influence causing injury to another person in violation of section 23153, subdivision (a): (1) the defendant drove a vehicle; (2) he was driving under the influence of an alcoholic beverage; (3) while driving under the influence he also committed an illegal act, alleged as driving at a speed endangering the safety of persons or property (§ 22350); and (4) defendant's illegal act caused bodily injury to another person.
The jury was also instructed on the elements for one lesser included offense for count 1: "Driving under the influence of an alcoholic beverage in violation of ... § 23152(a) is a lesser crime of causing injury to another person while driving a vehicle under the influence of an alcoholic beverage in violation of ... § 23153(a), the charge in Count I." The elements were (1) the defendant drove a vehicle; and (2) when he drove, he was under the influence of an alcoholic beverage. In contrast to the greater offense, the elements did not include the commission of an illegal act or causing bodily injury to another person.
As to count 2, the jury was instructed with CALCRIM No. 2101 on the elements of the charged offense of driving with a 0.08 percent blood-alcohol level causing injury in violation of section 23153, subdivision (b): (1) defendant drove a vehicle; (2) his blood-alcohol level was 0.08 percent or more; (3) he committed an illegal act while driving with that blood-alcohol level, again defined as driving at a speed which endangers persons or property in violation of section 22350; and (4) defendant's illegal act caused bodily injury to another person.
The jury was instructed with CALCRIM No. 2111 about one lesser included offense for count 2: "Driving with a blood alcohol level of 0.08 percent or more, in violation of ... §23152(b), is a lesser crime of causing injury to another person while driving with a blood alcohol level of 0.08 percent or more, in violation of ... § 23153(b), the charge in Count II." The elements were: (1) the defendant drove a vehicle; and (2) when he was driving, his blood-alcohol level was 0.08 percent or more. Again, in contrast to the greater offense, the elements did not include an illegal act or causing bodily injury to another person.
As to counts 1 and 2, the jury was further instructed the "illegal act" alleged as an element of both charged offenses was that "[a] person must drive at a reasonable speed. Whether a particular speed is reasonable depends on the circumstances, such as traffic, weather, visibility, and road conditions. Drivers must not drive so fast that they create a danger to people or property. [¶] If the People have proved [defendant] was not driving at a reasonable speed at the time of the alleged accident, then the defendant violated ... section 22350."
Finally, the jury was instructed on the elements of the third charged felony offense, count 3, hit and run, where the driver "knew that he had been involved in an accident that injured another person." The jury was not given any lesser included offenses for count 3.
C. Closing Arguments
In his closing argument, the prosecutor clearly stated that the charged offenses were based on the incident where Ms. Gutierrez's vehicle was hit at the intersection and the responsible driver left the scene. The prosecutor argued it was reasonable to assume defendant was driving the car that hit Ms. Gutierrez because she said it was a dark colored Chrysler 300 with shiny rims, a part from that type of car was later found in her own vehicle, the car left the scene and headed toward the La Loma area, and defendant was found inside the same type of car with shiny rims a few minutes later, after he crashed into the parked truck in front of Ms. Farmer's house in the nearby La Loma area.
The prosecutor reviewed the circumstances of defendant's collision with the parked truck while intoxicated. He argued it was reasonable to conclude that he was driving the same car that hit Ms. Gutierrez's vehicle earlier that night, and he was also intoxicated when he did so. The prosecutor noted that Ms. Gutierrez testified that the driver who hit her left the scene at a high rate of speed. He further noted that defendant was driving very fast when he hit the parked truck based on the force that pushed and totaled the truck. Defendant told the witnesses at the scene that he had been chased by someone who wanted to steal his rims. The prosecutor asserted that defendant was driving fast when he hit the truck because he was afraid since he had just hit Ms. Gutierrez and left the scene.
The prosecutor further argued the two collisions occurred close in time, since Sergeant Chamberlain was dispatched at 10:50 p.m. to Ms. Gutierrez's incident, and Officer Wallace was dispatched to Ms. Farmer's house at 10:45 p.m. "These are minutes apart."
Defense counsel's closing argument also addressed the collision with Ms. Gutierrez as the basis for the charged offenses. The defense theory was that the prosecution failed to prove beyond a reasonable doubt that defendant was driving the car that hit her at the traffic light. Counsel said Ms. Gutierrez "walked away from that accident having some injuries and those injuries have persisted." Counsel conceded defendant was very drunk when he hit the parked truck, but there was no way to know if he was lying when he claimed that someone had been chasing him. Counsel focused on Ms. Gutierrez's inability to specifically describe or identify anyone as the driver of the car that hit her.
Defense counsel also argued no one saw defendant driving a car that night, and raised the possibility that someone else was driving the car that hit the parked truck, and "there was enough time for that person to bail out" and for defendant to slide into the driver's seat. Counsel further argued there was no definite evidence on the time that each collision occurred. As for count 3, hit and run causing injury, counsel argued that even a sober person could not have known that Ms. Gutierrez was injured in any way after the collision.
D. Verdicts
As explained above, the jury found defendant not guilty of count 1, DUI causing injury, count 2, driving with a blood-alcohol level of 0.08 percent or more causing injury, and count 3, hit and run causing injury.
As to count 1, he was convicted of the lesser offense of simple DUI, and as to count 2, the lesser offense of driving with a blood-alcohol level of 0.08 percent or more.
E. Analysis
Defendant argues the jury convicted him of the lesser included misdemeanor offenses solely based on the prosecution's evidence about his intoxicated collision with the unoccupied parked truck, even though he was never charged with any offenses based on that collision, the jury was never instructed that it could not rely on the parked truck collision to convict him of the lesser offenses, and his convictions for the two misdemeanors must be reversed because he never received notice of the allegations that the jury relied on. Defendant asserts there was structural error that requires automatic reversal.
Defendant was properly convicted of the misdemeanor lesser included offenses of counts 1 and 2, and those convictions were based on the traffic light collision with Ms. Gutierrez.