P. v. Hamer
Filed 4/4/13 P. v. Hamer CA4/2
NOT TO BE PUBLISHED IN OFFICIAL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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE
STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
ODIS THELMAR HAMER
III,
Defendant and Appellant.
E056315
(Super.Ct.No. FVI1101532)
OPINION
APPEAL
from the Superior Court of
Bernardino County. John M.
Tomberlin, Judge. Affirmed.
William
D. Farber, under appointment by the Court of Appeal, for Defendant and
Appellant.
No
appearance for Plaintiff and Respondent.
On March 21, 2012, a first amended information charged
defendant and appellant Odis Thelmar Hamer III with causing injury to another
person while driving a motor vehicle under the influence of alcohol in
violation of Vehicle Code section 23153, subdivision (a) (count 1); causing
injury to another person while driving a motor vehicle with a blood-alcohol
level of 0.08 percent or more in violation of Vehicle Code section 23153,
subdivision (b) (count 2); and leaving the scene of an accident in violation of
Vehicle Code section 20001, subdivision (a) (count 3). Pursuant to Vehicle Code section 23560, the
amended information also alleged, as to counts 1 and 2, one prior Vehicle Code
section 23153, subdivision (b), conviction, as well as enhancements under Penal
Code section 12022.7, subdivision (a) (great bodily injury) and Vehicle Code
section 23558 (bodily injury). At the
arraignment on March 23, 2012, defendant pleaded not guilty to all counts.
On
April 2, 2012, trial by jury commenced.
After four days of trial, the jury returned verdicts. The jury found defendant (1) guilty on count
1 of the lesser included misdemeanor of driving under the influence in
violation of Vehicle Code section 23152, subdivision (a); (2) guilty on count 2
of the lesser included misdemeanor of driving with a blood-alcohol level of
0.08 percent or more in violation of Vehicle Code section 23152, subdivision
(b); and (3) guilty on count 3 of the felony leaving the scene of an accident
in violation of Vehicle Code section 20001, subdivision (a).
On
May 11, 2012, the trial court denied probation and defendant’s motion to reduce
count 3 to a misdemeanor under Penal Code section 17, subdivision (b). Thereafter, the trial court sentenced
defendant on felony count 3 to the middle term of two years in state
prison. The court also sentenced
defendant on misdemeanor counts 1 and 2 to the concurrent terms of 180 days in
county jail with credit of 180 days time served on each misdemeanor count under
Penal Code section 4019. Pursuant to
Vehicle Code section 13350, the court found that a motor vehicle was used in
the commission of count 1. The court
also imposed a restitution fine in the amount of $300 under Penal Code section
1202.4, subdivision (b), and imposed, but stayed, a parole revocation fine in
an equal amount under Penal Code section 1202.45, subdivision (b). Additionally, the court imposed a $70 court
conviction and security fee for each convicted count, for a total of $210.
On
May 17, 2012, defendant filed a timely notice
of appeal.
On
April 16, 2011, shortly after 10:00 p.m., the victims were driving home along
Main Street in their silver Toyota Camry in Hesperia, California. Their vehicle entered the intersection of
Main Street and Escondido Avenue on a green light. A Ford Mustang entered the same intersection
and attempted to make a left turn on a red light directly in the path of the
victims’ oncoming Camry. The Camry
struck the Mustang broadside as it turned left on the red light. The Mustang swung around, striking the
passenger side of the Camry. The
victims’ Camry was inoperable after the collision.
The
driver of the Camry sustained minor chipping on a tooth and some bruising on
her neck, knee, and body.
The
passenger of the Camry hit his forehead on the windshield, causing pain to his
head, neck and shoulder. After the
accident, his head remained sore and tender to the touch. He also suffered from increased shoulder pain
from reconstructive surgery that had occurred approximately two weeks prior to
the collision. He was prescribed pain
medication for his head, and also used an anti-inflammatory after the
collision.
At
trial, both victims identified defendant as the driver of the Mustang at the
time of the collision. Immediately after
the accident, both victims saw defendant unsuccessfully attempt to drive away
from the scene. However, the Mustang was
damaged. The victims saw defendant exit
the vehicle and walk away from the scene of the accident. According to the victims, defendant never (1)
approached them after the accident; (2) offered any assistance; (3) tried to
see if they were injured; or (4) provided any information to the victims such
as his name, address, or vehicle registration.
At
approximately 10:00 p.m., on April 16, 2011, San Bernardino County Deputy
Sheriff Brimmer was on patrol along Main Street in Hesperia. Deputy Brimmer observed a black Ford Mustang,
with front-end damage, on the shoulder of the westbound lane at the
intersection of Main Street and Escondido Avenue. He noticed that the driver was sitting in the
driver’s seat of the vehicle, and that he was the sole occupant. At trial, Deputy Brimmer identified defendant
as the driver.
Deputy
Brimmer also saw another vehicle blocking the intersection. As soon as the deputy stopped his vehicle, a
man and a woman ran up to him. They
pointed at the Mustang and stated that the driver had just hit their Camry and
was trying to get away. As the deputy
approached the Mustang, he saw defendant exit the vehicle and walk away. Deputy Brimmer identified himself as a
sheriff’s deputy and asked defendant to stop.
Defendant turned, looked at the deputy, and started running away with a
limp. The deputy chased defendant for
about 200 to 300 feet, twice telling him to stop.
Deputy
Brimmer caught up with defendant, grabbed his arm, and then detained him. The deputy handcuffed defendant and took him
into custody. The deputy noticed that
defendant smelled of alcohol. He also
observed that defendant’s eyes were watery and bloodshot. Deputy Brimmer escorted defendant to the area
of his patrol vehicle.
Deputy
McCurdy testified that he was assigned to “DUI enforcement†on April 16,
2011. Deputy McCurdy arrived at the
scene of the collision just minutes after Deputy Brimmer arrived. Deputy McCurdy assumed responsibility as the
primary investigator. At trial, Deputy
McCurdy identified defendant as the driver of the Mustang.
Deputy
McCurdy first encountered defendant sitting on the ground in
any signs of alcohol intoxication. He
observed that defendant’s eyes were bloodshot and watery. The deputy also noticed that there was a
strong odor of alcohol coming from defendant, and that defendant appeared to be
disoriented and confused. Defendant was
unable to respond readily to the deputy’s questions. Defendant refused to submit to a preliminary
breath test; he told Deputy McCurdy to “take him to the station.†When the deputy asked defendant about the
accident, defendant repeated his prior request to be taken to the station.
Deputy
McCurdy inspected the two vehicles involved in the collision. Both the vehicles’ airbags had been
deployed. Inside the Mustang, Deputy
McCurdy observed two 40-ounce beer bottles.
One bottle was empty. The other
was cold to the touch and “had an inch to an inch-and-a-half of liquid†left in
the bottle. The deputy found the empty
beer bottle behind the driver’s seat; he could not recall where he found the
other bottle.
Before
leaving the scene, the Deputy McCurdy arranged to have a law enforcement
medical services nurse draw a sample of defendant’s blood at 10:35 p.m. Deputy McCurdy observed the entire blood draw
procedure. The deputy received the vial
of defendant’s blood at the scene; the nurse placed the sample into an evidence
envelope, which was then sealed and marked for identification. Deputy McCurdy transported the sealed sample
of defendant’s blood to the sheriff’s station and placed it in a storage locker. The sample was subsequently delivered to the
sheriff’s crime lab for testing and analysis.
In
Deputy McCurdy’s opinion—based on (1) his training and experience; (2) his
investigations and observations; (3) the placement and location of the two vehicles
and debris; and (4) statements of the parties involved—the front end of the
Camry struck the Mustang while the Camry was proceeding on a green light. Defendant, as driver of the Mustang, was at
fault. Deputy McCurdy described the
collision as a broadside. The deputy
concluded that while the Camry was proceeding through the intersection on a
green light, it struck the side of the Mustang, which was turning left on a red
light.
A
criminalist from the San Bernardino County Sheriff’s Department crime lab
testified that based on her training and experience, she was familiar with
correlation studies as to the effects of alcohol consumption on a person’s
ability to drive. She opined that
“regardless of the person’s experience with alcohol, everyone is mentally
impaired and cannot drive safely†with a 0.08 percent or more blood-alcohol
level.
Following
prescribed protocols and guidelines, the criminalist analyzed the sample of
defendant’s blood for alcohol content.
Defendant’s blood sample was analyzed twice as required by the standard
testing protocol. The two results showed
0.266 and 0.264 percent blood-alcohol content.
The reported results were 0.26 percent blood-alcohol content. Based on her background, training, and
experience, the criminalist was of the opinion that a person with a 0.26
blood-alcohol content would be unable to operate a motor vehicle with the care
and caution of a sober person. Such a
person would be impaired both mentally and physically for purposes of driving.
After defendant appealed,
and upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority
of People
v. Wende (1979) 25 Cal.3d 436 and Anders
v. California (1967) 386 U.S. 738, setting forth a statement of the case, a
summary of the facts and potential arguable issues, and requesting this court
to undertake a review of the entire record.
We
offered defendant an opportunity to file a personal supplemental brief, and he
has done so. In his one-page
letter, defendant argues that his felony conviction on count 3, leaving
the scene of an accident, should be reduced to a misdemeanor. In essence, defendant argues that the trial
court erred in denying his motion under Penal Code section 17, subdivision (b).
Penal
Code section 17, subdivision (b), gives a trial court discretion to reduce an
offense charged as a felony to a misdemeanor if the offense is a “wobbler,â€
i.e., chargeable either as a felony or as a misdemeanor, upon imposition of a
punishment other than state prison (Pen. Code, § 17, subd. (b)(1)) or by
declaration as a misdemeanor after a grant of probation (Pen. Code, § 17, subd.
(b)(3)).
v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 974.) A trial court’s decision under section 17,
subdivision (b), is reviewed for abuse of discretion. (People
v. Superior Court (Alvarez), at
pp. 976-977.)
Here,
at defendant’s sentencing hearing, his counsel moved to reduce his conviction
on count 3 to a misdemeanor. Counsel
stated that the reasons for his request were “. . . simple. First, [defendant] has one prior conviction
as a misdemeanor and then he has this case.
He has never, until now, served time in custody. Also, having participated, as we all did, in
the jury trial, I think that this bears treatment as a misdemeanor. . . . [¶] .
. . What I mean by that is simply that
he needs to understand that he should not drink and drive. He’s been in custody for quite some time now,
and I think that is sufficient to teach him that lesson. [¶]
The injuries in this case, the Court heard the testimony, I think that
although his behavior was egregious, his blood alcohol content was high. . .
. The jury found him not guilty of the
DUI Causing Injury and therefore didn’t reach the GBI allegation. They found him guilty of Leaving the Scene of
the Accident.â€
After
hearing argument from both defense counsel and the prosecutor, the trial court,
in essence, denied the motion in sentencing defendant to state prison for the
middle term of two years on count 3, “the offense of Hit and Run Resulting in
Injury or Death in violation of Vehicle Code section 200001(A) [
easy to justify giving [defendant] the aggravated term as requested by the
probation department in this case.†The
court noted that it did not agree with defense counsel when he stated that
defendant has “to learn to not drink and drive†since defendant already had a
chance to learn that, but “didn’t want to learn that.â€
It
appears that defendant is arguing that the court’s refusal to reduce the
offense to a misdemeanor was an abuse of discretion because there was no
finding of bodily injury.
Vehicle
Code section 20001, subdivision (a), provides:
“[t]he driver of a vehicle involved in an accident resulting in injury
to a person, other than himself or herself, or in the death of a person shall
immediately stop the vehicle at the scene of the accident and shall fulfill the
requirements of Sections 20003 and 20004.â€
Vehicle Code sections 20003 and 20004 require drivers to render
reasonable aid to the injured person and to furnish identification to that
person and law enforcement authorities.
Vehicle Code section 20001 focuses on flight, not on the physical
contact with the victim. “‘“The gravamen
of a section 20001 offense . . . is not the initial injury of the
victim, but leaving the scene without
presenting identification or rendering aid.â€
[Citations.]’†(
866.) Thus, Vehicle Code section 20001,
subdivision (a), does not make criminal the actual accident or event that
causes the physical contact with the victim.
It merely addresses the duties of a driver, however otherwise innocent,
once the accident and its attendant injuries have occurred.
In
order to find defendant guilty of violating Vehicle Code section 20001, the
evidence must show, among other things, that defendant, while driving a
vehicle, was involved in an accident with another vehicle, that the accident
caused injury to someone other than defendant, that defendant either knew that
the accident had injured another person or “knew from the nature of the
accident that it was probable that another person had been injured,†and that
defendant “willfully failed . . . [t]o stop immediately at the
scene of the accident.†(CALCRIM No.
2140.)
Defendant’s
contrary claims notwithstanding, the evidence presented at trial supports the
jury’s implied findings that defendant knew the accident caused injury or knew
that it was probable that another person had been injured. Here, defendant’s Mustang entered the
intersection on a red light wherein the victims’ Camry struck defendant’s
vehicle, and then defendant’s vehicle swung around and struck the victims’
vehicle, rendering it inoperable. Both
victims sustained minor
injuries. Nothing in the statute
requires that the injuries be major or life threatening.
In
a related argument, defendant seems to contend that the court erred in failing
to instruct the jury on a “lesser misdemeanor charge hit and run.†“A trial court must instruct on a lesser included offense if
substantial evidence exists indicating that the defendant is guilty
(People v. Manriquez (2005) 37
Cal.4th 547, 584, italics added.) On
appeal, “we employ a de novo standard of review and independently determine
whether an instruction on the lesser included offense . . . should have been
given.†(Ibid.) Here, there
was no error. As discussed
had a duty to provide aid because defendant knew from the nature of the
accident, that it was probable, that another person had been injured.
Furthermore,
defendant argues that the trial court erred in instructing the jury with
CALCRIM No. 372, which stated: “If the
defendant fled or tried to flee immediately after the crime was committed, that
conduct may show that he was aware of his guilt. If you conclude that the defendant fled or
tried to flee, it is up to you to decide the meaning and importance of that
conduct. However, evidence that the
defendant fled or tried to flee cannot prove guilt by itself.â€
Contrary
to defendant’s characterization, the flight jury instruction, as quoted
but were not required to, consider evidence that defendant fled after the
collision as circumstantial evidence that he was aware of his guilt. The instruction does not relieve the jury of
its duty to find each element of the crime proved beyond a reasonable
doubt.
Based
on the above, we cannot find that the trial court abused its discretion in
denying defendant’s motion to reduce his conviction on count 3 to a
misdemeanor.
Pursuant
to the mandate of People v. Kelly
(2006) 40 Cal.4th 106, we have conducted an
find no arguable issues.
The
judgment is affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J.
We
concur:
HOLLENHORST
Acting P. J.
CODRINGTON
J.
name="_ftn1" title=""> [1] Penal
Code section 17, subdivision (b), provides in relevant part: “When a crime is
punishable, in the discretion of the court, either by imprisonment in the state
prison or imprisonment in a county jail . . . it is a misdemeanor for all purposes
under the following circumstances: [¶] (1) After a judgment
imposing a punishment other than imprisonment in the state prison . . . [¶]
. . . [¶] (3) When the court grants
probation to a defendant without imposition of sentence and at the time of
granting probation, or on application of the defendant or probation officer
thereafter, the court declares the offense to be a misdemeanor.â€
