Filed 11/17/17 P. v. Todd CA4/3







NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE


THE PEOPLE,

Plaintiff and Respondent,

v.

NICHOLAS LAWRENCE TODD,

Defendant and Appellant.


G054200

(Super. Ct. No. 14NF0855)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Michael J. Cassidy, Judge. Affirmed.
Richard L. Fitzer, 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, A. Natasha Cortina and Annie Featherman Fraser, Deputy Attorneys General, for Plaintiff and Respondent.
Nicholas Lawrence Todd appeals from a judgment after a jury convicted him of hit and run causing death and misdemeanor driving under the influence of alcohol. Todd argues the following: (1) the prosecution failed to satisfy the corpus delicti rule;
(2) the trial court erroneously denied his motion to sever; (3) Vehicle Code section 20001 violated his Fifth Amendment rights; and (4) the court erred by refusing to instruct the jury with CALCRIM No. 3425 and a pinpoint instruction. None of his contentions have merit, and we affirm the judgment.
FACTS
Todd and Desiree Moriel, who were both in their 30’s, had been dating about one month. One evening, Todd picked up Moriel and they went to the Orange County Fair. They drank alcohol and ate. When the food Moriel ordered was ready, Todd went to retrieve it and bumped into a woman. They “shimmied” to get around each other and spoke briefly. When Todd returned with the food, Moriel was upset he talked with the woman, tried to argue with him, and left. Todd went to his truck. After Moriel called him, she went to his truck, and they left.
As he drove on the 57 freeway, Todd told Moriel that if she continued behaving in that manner they would not date anymore. Moriel became upset and threatened to get out of the moving truck. As they drove 60 to 70 miles per hour, Moriel opened the door, closed the door, and opened the door. Todd told Moriel to stop. Moriel positioned her body in the opening of the door and lowered her legs on to the freeway. Todd tried to grab Moriel’s jacket, but she moved away so he could not reach her. Moriel had one leg in the truck and one leg dragging on the freeway. After a minute or two, Moriel was “gone.”
Todd looked in his rearview mirror but kept on driving past numerous freeway exits. Todd did not stop because he was scared, had drunk a couple of beers, and “freaked out.” Todd called his brother, but he did not answer. Todd called his friend, Michael Barroso, but he did not answer. Five minutes later, Barroso called Todd, and after Todd told him what had happened, Barroso told him to stop and call the police.
Thirteen separate people called 911. Officer Garrett Melberg responded to the 911 calls and saw two cars that were later determined to have hit Moriel. Moriel’s body was 314 feet away from one of the cars, with her remains scattered on the freeway.
Todd drove home, finally called 911, and told his parents what happened. When they asked him why he did not stop, he answered because he was scared, had drunk a few beers, and did not have a place to pull over. When an officer arrived at Todd’s home, he smelled of alcohol, and had objective signs of intoxication, including bloodshot and watery eyes. Todd told officers that he had four to five beers. The officer did not administer a field sobriety test.
A couple hours later Todd told a detective he had three to four beers and Moriel had three to four beers and some wine; the detective did not observe any signs of intoxication. Todd told the detective he stopped accelerating and moved towards the right side of the freeway. The detective questioned Todd about statements from witnesses who did not see any brake lights or sudden movements. Todd stated he was afraid to slow down too much because if he did, Moriel might jump. At 4:54 a.m., Todd’s blood was drawn and his blood alcohol level was .04 percent. A couple weeks later, he told the detective he had two to three beers.
An information charged Todd with the following: hit and run with permanent injury or death (Veh. Code, § 20001, subds. (a), (b)(2), all further statutory references are to the Vehicle Code) (count 1); misdemeanor driving under the influence of alcohol (§ 23152, subd. (a)) (count 2); and misdemeanor driving with blood alcohol .08% or more (§ 23152, subd. (b)) (count 3).
Before trial, Todd filed a motion to sever count 1 from counts 2 and 3. The prosecution opposed the severance motion. The trial court denied the motion, concluding the offenses “[h]appened on the same date, the same location, all involving the same incident, the evidence as to all three of these offenses is cross-admissible.”
Todd also filed a motion in limine to, as relevant here, exclude statements and evidence required by section 20001 because it violated his Fifth Amendment rights. The trial court denied the motion.
At trial, an expert witness testified that, based on Todd’s weight, the time he stopped drinking, and his blood alcohol level at approximately 4:54 a.m., his blood alcohol level would have been between .11 and .12 percent at the time he was driving. The expert estimated he would have had seven to eight drinks in his system. On cross-examination, the expert conceded Todd’s physical health and stress were factors he needed, but did not have, to accurately predict Todd’s blood-alcohol level at the time of the incident.
Todd presented testimony from John and Emily Liwanag, who were driving behind him. John directed Emily’s attention towards Todd’s truck because the door was open and there were sparks on the freeway. They realized it was a person dragging their boots on the freeway. The Liwanags moved to the right lane and sped by Todd’s truck. Emily testified that after they passed Todd’s truck, she looked in the mirror and believed the truck was signaling to the right and going to exit. Emily called 911.
Michael Barroso, Todd’s childhood friend, testified Todd called him, and frantically said, “‘Oh my God,’” and, “‘she jumped out.’” Barroso told him to pull over and call 911. Todd replied he was almost home and would call then.
Nancy Kaser-Boyd, a forensic psychologist, testified Todd experienced an “extremely threatening” event and suffered from acute stress disorder, which manifested itself as peritraumatic dissociation, and later merged into posttraumatic stress disorder (PTSD). Kaser-Boyd explained “peritraumatic,” which means “trauma at the time,” and “dissociation,” which means “a split between the normally integrated aspects of the brain,” is a split between the more sophisticated and the more automatic parts of the brain. She added peritraumatic dissociation is caused by a horrifying event that triggers adrenalin in the brain, overrides the person’s thinking, planning, and problem solving abilities and results in fight or flight. She said other symptoms of peritraumatic dissociation are detachment, where the person goes numb and feels like they are watching everything happen to someone else, and de-realization, where the person does not believe the horrifying event is real. Kaser-Boyd opined Todd was in a state of peritraumatic dissociation after Moriel exited the truck and his anxiety and fear overrode his ability to think rationally and make choices. She admitted a significant degree of intoxication would have an effect on a person’s cognitive processes and that intoxication also would have caused Todd’s reaction time to be slower and his thinking to be more confused.
During a discussion on jury instructions, the trial court denied Todd’s request to instruct the jury with CALCRIM No. 3425, “Unconsciousness,” and a pinpoint instruction among others not relevant here.
The jury asked the trial court three questions including whether it could reduce count 1 to a misdemeanor to which the trial court answered it could not. The jury also asked the following question: “If a person has been drinking and we do not know their blood alcohol level, but they drive, have an accident and leave the scene, is the fact that they decided not to stop evidence we can consider to convict them of DUI?” The trial court responded, “You can consider [Todd’s] conduct while driving.” Two minutes later the jury returned its verdicts.
The jury convicted Todd of counts 1 and 2 but acquitted him of count 3. The trial court suspended imposition of sentence, placed him on three years of formal probation with terms and conditions, and ordered him to serve 365 days in jail.


DISCUSSION
I. Corpus Delicti Rule
Todd argues the prosecution failed to satisfy the corpus delicti rule as to count 2. We disagree.
“In every criminal trial, the prosecution must prove the corpus delicti, or the body of the crime itself—i.e., the fact of injury, loss, or harm, and the existence of a criminal agency as its cause. In California, it has traditionally been held, the prosecution cannot satisfy this burden by relying exclusively upon the extrajudicial statements, confessions, or admissions of the defendant. [Citations.]” (People v. Alvarez (2002)
27 Cal.4th 1161, 1168-1169 (Alvarez).) The corpus delicti rule applies to both
out-of-court statements made prior to the offense and to statements made after the offense. (Id. at pp. 1170-1171.) An objection is unnecessary. (Id. at p. 1180.)
“The independent proof may be circumstantial and need not be beyond a reasonable doubt, but is sufficient if it permits an inference of criminal conduct, even if a noncriminal explanation is also plausible. [Citations.] There is no requirement of independent evidence ‘of every physical act constituting an element of an offense,’ so long as there is some slight or prima facie showing of injury, loss, or harm by a criminal agency. [Citation.] In every case, once the necessary quantum of independent evidence is present, the defendant’s extrajudicial statements may then be considered for their full value to strengthen the case on all issues. [Citations.]” (Alvarez, supra, 27 Cal.4th at
p. 1171.) “The corpus delicti of the offense of driving under the influence consists of proof that the automobile was being driven by some person who was under the influence of alcohol. [Citation.]” (People v. Martinez (2007) 156 Cal.App.4th 851, 855.)
Here, there was sufficient circumstantial evidence permitting an inference Todd committed criminal conduct by driving under the influence of alcohol. Although the officer who responded to Todd’s home did not conduct a field sobriety test, Todd smelled of alcohol and had objective signs of intoxication including bloodshot and watery eyes. The expert testified that at the time of the incident Todd’s blood alcohol level was .11 or .12. This was sufficient circumstantial evidence Todd drove under the influence of alcohol. Contrary to Todd’s assertion, the fact the jury acquitted him of count 3, driving with blood alcohol .08 percent or more, was not a rejection of the expert’s opinion he was driving while impaired. (See McDonald v. Department of Motor Vehicles (2000)
77 Cal.App.4th 677, 686, 688 [section 23152’s “‘under the influence’” means alcohol impaired driver’s mental and physical abilities to such a degree driver does not have ability to drive vehicle with caution characteristic of sober person of ordinary prudence].) The jury’s verdict on count 3 has no bearing on whether there was a prima facie showing of criminal conduct on count 2. “[A] verdict of either conviction or acquittal upon one count has no bearing upon the verdict with respect to another count.” (People v. Lara (1996) 43 Cal.App.4th 1560, 1568, fn. 4.)
Todd relies on the fact the responding officer did not conduct a field sobriety test, the detective did not observe him to be intoxicated, and the jury immediately returned its verdicts after the trial court answered the third question. Again, these facts do not negate the circumstantial evidence supporting the inference Todd committed criminal conduct. (Alvarez, supra, 27 Cal.4th at p. 1171 [independent proof can be circumstantial and not beyond reasonable doubt and sufficient if permits inference of criminal conduct even if noncriminal explanation plausible].) Based on the responding officer’s observations Todd had been drinking and evidence of his blood alcohol level, the prosecution satisfied the corpus delicti rule as to count 2.
II. Motion to Sever
Todd contends the trial court erred by denying his motion to sever count 1 from counts 2 and 3. Not so.
“[Penal Code] [s]ection 954 provides that ‘two or more different offenses’ may be charged in the same pleading if the offenses are either ‘connected together in their commission’ or ‘of the same class.’ This ‘statute permits the joinder of different offenses, even though they do not relate to the same transaction or event, if there is a common element of substantial importance in their commission, for the joinder prevents repetition of evidence and saves time and expense to the state as well as to the defendant.’ [Citation.]” (People v. Armstrong (2016) 1 Cal.5th 432, 455 (Armstrong).) The statute does not distinguish between misdemeanors and felonies, and thus “authorizes the joinder of misdemeanor counts and felony counts in a prosecution” if such joinder satisfies the statutory requirements. (Aydelott v. Superior Court (1970)
7 Cal.App.3d 718, 722.) Because consolidation or joinder of charged offenses ordinarily promotes efficiency, that “‘is the course of action preferred by the law.’” (People v. Soper (2009) 45 Cal.4th 759, 772 .)
Here, count 1 and counts 2 and 3 were of the same class. Offenses that possess common characteristics are offenses of the same class. (People v. Landry (2016) 2 Cal.5th 52, 76 (Landry).) Count 1 charged Todd with hit and run. Count 2 charged Todd with misdemeanor driving under the influence of alcohol, and count 3 charged him with misdemeanor driving with blood alcohol .08% or more. These offenses are of the same class because they are all in the Vehicle Code and all involved driving.
Count 1 and counts 2 and 3 were also connected together in their commission. Offenses connected together in their commission are linked by a common element of substantial importance. (Landry, supra, 2 Cal.5th at p. 76.) Count 1 and counts 2 and 3 are linked by a common element of substantial importance because Todd’s motivation for fleeing the scene of the incident was in part to avoid prosecution for driving under the influence. Another common element was that when officers interviewed Todd at his home for the hit and run, an officer observed objective signs of intoxication. Todd’s reliance on People v. Madden (1988) 206 Cal.App.3d Supp. 14 [possession of hypodermic syringe and failure to appear], People v. Saldana (1965)
233 Cal.App.2d 24 [unlawful possession of marijuana and rape], and People v. Renier (1957) 148 Cal.App.2d 516 [robbery and unlawful driving of an automobile], is misplaced because those cases did not involve the offenses at issue here. Thus, the offenses were both of the same class and connected together in their commission.
However, even if the offenses are of the same class or connected together in their commission, the trial court retains discretion to sever them if the moving party establishes prejudice. “In reviewing a trial court’s denial of a motion for severance, ‘we consider the record before the trial court when it made its ruling.’ [Citation.] We first consider whether evidence of each of the offenses would be cross-admissible in ‘hypothetical separate trials.’ [Citation.] If the evidence is not cross-admissible, we then consider ‘whether the benefits of joinder were sufficiently substantial to outweigh the possible “spill-over” effect of the “other-crimes” evidence on the jury in its consideration of the evidence of defendant’s guilt of each set of offenses.’ [Citation.] In making this assessment, ‘we consider three additional factors, any of which—combined with our earlier determination of absence of cross-admissibility—might establish an abuse of the trial court’s discretion: (1) whether some of the charges are particularly likely to inflame the jury against the defendant; (2) whether a weak case has been joined with a strong case or another weak case so that the totality of the evidence may alter the outcome as to some or all of the charges; or (3) whether one of the charges (but not another) is a capital offense, or the joinder of the charges converts the matter into a capital case. [Citations.] We then balance the potential for prejudice to the defendant from a joint trial against the countervailing benefits to the state.’ [Citation.] [¶] On the other hand, if the evidence is cross-admissible, ‘that factor alone is normally sufficient to dispel any suggestion of prejudice and to justify a trial court’s refusal to sever properly joined charges.’ [Citation.]” (Armstrong, supra, 1 Cal.5th at p. 456.)
Here, evidence concerning count 1 was cross-admissible to counts 2 and 3. Todd concedes evidence he admitted to officers he was driving was cross-admissible. As we explain below, his statements as required by section 20001 did not implicate his Fifth Amendment rights. And witness testimony concerning his driving was cross-admissible. Additionally, evidence, both testimonial and forensic, he drove under the influence was cross-admissible to count 1, the reason he fled, and counts 2 and 3, both driving under the influence counts. Todd focuses on evidence he claims would not be cross-admissible. But “it is not required that all of the evidence be cross-admissible[.]” (People v. Ramirez (2006) 39 Cal.4th 398, 439-440.) He also cites to the prosecutor’s inflammatory comments during closing argument. The trial court instructed the jury counsels’ arguments were not evidence. (CALCRIM No. 222.)
Although evidence concerning Moriel’s death was graphic and gruesome, we cannot conclude the evidence was so inflammatory Todd was unduly prejudiced. The jury inquired whether it could reduce count 1’s hit and run to a misdemeanor and acquitted him of count 3. Additionally, the prosecution did not join a weak case, counts 2 and 3, with a strong case, count 1, to attempt to alter the outcome. Todd does not dispute there was sufficient evidence supporting count 2. And the evidence on count 3 was not weak—had the jury returned a guilty verdict, there was sufficient evidence to affirm that conviction. Because evidence was cross-admissible, the evidence was not likely to inflame the jury against Todd, and a weak case was not joined with a strong case, Todd has not demonstrated the joint trial resulted in gross unfairness, and thus his due process rights were not violated. (Landry, supra, 2 Cal.5th at p. 77.)
III. Vehicle Code section 20001
We reject Todd’s assertion section 20001 violated his Fifth Amendment rights. Section 20001, subdivision (a), provides: “The 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 [s]ections 20003 and 20004.” Sections 20003 and 20004 require the driver to stop and provide identification and render aid to the victim, as well as to report the accident to authorities if there is no police officer present. Failure to comply with these requirements is a criminal offense. (§ 20001, subd. (b)(1) & (2).)
In People v. Martinez (2017) 2 Cal.5th 1093 (Martinez), the California Supreme Court recently addressed the issue of victim restitution in a case involving section 20001. In discussing that section, the Martinez court stated: “As the United States Supreme Court once explained in upholding . . . section 20001 against constitutional challenge, ‘it is not a criminal offense under California law to be a driver “involved in an accident.” An accident may be the fault of others; it may occur without any driver having been at fault.’ (California v. Byers (1971) 402 U.S. 424, 431 . . . (plur. opn. of Burger, C.J.) [(Byers)] [rejecting argument that a driver’s disclosure obligations under California’s hit-and-run statute create a ‘substantial risk of self-incrimination’ in violation of 5th Amend.].)” (Martinez, supra, 2 Cal.5th at pp. 1102-1103.) Although not directly at issue in Martinez, we interpret its reliance on the Byers plurality as its conclusion section 20001 does not implicate the Fifth Amendment. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [appellate courts bound by Supreme Court].) Therefore, section 20001 did not violate Todd’s Fifth Amendment rights.
IV. Sufficiency of the Evidence
Todd argues insufficient evidence supports his conviction for count 1 because he was not in an “accident” if Moriel committed suicide. Again, we disagree.
“On appeal, the test of legal sufficiency is whether there is substantial evidence, i.e., evidence from which a reasonable trier of fact could conclude that the prosecution sustained its burden of proof beyond a reasonable doubt. [Citations.] Evidence meeting this standard satisfies constitutional due process and reliability concerns. [Citations.] [¶] While the appellate court must determine that the supporting evidence is reasonable, inherently credible, and of solid value, the court must review the evidence in the light most favorable to the [judgment], and must presume every fact the [trier] could reasonably have deduced from the evidence. [Citations.]” (People v. Vela (2012) 205 Cal.App.4th 942, 952.)
Section 20001, subdivision (a), does not criminalize hitting, it criminalizes running. (Martinez, supra, 2 Cal.5th at p. 1102.) “[A] defendant who flees the scene of an injury accident has committed a crime even if the accident was solely the result of the victim's own negligence. [Citation.]” (Id. at p. 1103.)
People v. Kroncke (1999) 70 Cal.App.4th 1535 (Kroncke), is instructive. In that case, the Court of Appeal upheld a conviction for violating section 20001 after defendant failed to tell officers at the scene of the accident the decedent jumped from his moving vehicle. (Kroncke, supra, 70 Cal.App.4th at p. 1539.) The Kroncke court held defendant was required to report to the officer who questioned him that he was driving the vehicle from which the passenger jumped. (Id. at p. 1542.) In so holding, the Kroncke court rejected defendant's contention the decedent’s decision to jump from the moving vehicle “did not constitute a reportable ‘accident’ within the meaning of sections 20001 and 20003.” (Kroncke, supra, 70 Cal.App.4th at p. 1547.) We find Kroncke persuasive and conclude that even if Moriel intentionally jumped from the moving vehicle it was an “accident” within the meaning of section 20001.
V. Jury Instructions
A. CALCRIM No. 3425
Todd argues the trial court erred by denying his request to instruct the jury with CALCRIM No. 3425. There was insufficient evidence to give the instruction.
“Unconsciousness, if not induced by voluntary intoxication, is a complete defense to a criminal charge. [Citations.] To constitute a defense, unconsciousness need not rise to the level of coma or inability to walk or perform manual movements; it can exist ‘where the subject physically acts but is not, at the time, conscious of acting.’ [Citation.] If the defense presents substantial evidence of unconsciousness, the trial court errs in refusing to instruct on its effect as a complete defense. [Citations.]” (People v. Halvorsen (2007) 42 Cal.4th 379, 417.) Substantial evidence in this context means evidence from which a reasonable jury could have found that the particular facts underlying the instruction existed. (People v. Wickersham (1982) 32 Cal.3d 307, 324, overruled on other grounds in People v. Barton (1995) 12 Cal.4th 186, 200, 201.) We independently review the record to determine whether such evidence exists. (People v. Manriquez (2005) 37 Cal.4th 547, 581, 584).
Here, there was not sufficient evidence to support instructing the jury with CALCRIM No. 3425. Todd’s actions did not tend to establish he was unconscious. As he drove home, he first called his brother and then called his friend. At his house, he called 911, and then spoke with his parents and officers. Todd gave different reasons for why he left the scene, but never said he was unconscious. Todd told his father that he did not stop because there was not a place to pull over, and that he was scared and had a couple of beers. At his house, when an officer asked him whether his drinking played a part in his failure to stop, he said, “‘probably.’” He later told the detective he did not stop because he had a few beers, was scared, and “freaked out.” Todd never told anyone he had a lack of memory, a blackout, or any mental infirmaries.
Todd relies on Kaser-Boyd’s testimony he suffered from peritraumatic dissociation to support his claim he was unconscious. It is true medical testimony a defendant was unconscious can support an instruction on the defense. (People v. Gana (2015) 236 Cal.App.4th 598, 609-610 (Gana).) However, her testimony was not sufficient evidence to give the instruction. Kaser-Boyd’s testimony the adrenaline overrode Todd’s thinking, planning, and problem solving abilities and caused him to flee was not evidence Todd was unconscious. Additionally, her testimony Todd may have felt like he was watching the event happen to someone else or disbelieved the event was happening was dispelled by evidence of Todd’s conduct and statements.
In Gana, supra, 236 Cal.App.4th at page 601, a case from this court, an information charged defendant with the first degree murder of her husband and the deliberate and premeditated murder of her two sons. At the time of the offenses, defendant was undergoing chemotherapy and was taking medications to mitigate the effects of the chemotherapy. Defendant presented expert medical testimony explaining how these medications affected her mental state. (Id. at p. 610.) A defense expert opined a combination of factors, defendant’s medications and her depression, caused psychosis or delirium, which resulted in a “fluctuating level of consciousness.” (Id. at p. 610.) Based on this evidence, another panel of this court held the trial court erred by failing to instruct the jury on the defense of unconsciousness, but that the error was harmless. (Id. at pp. 610-611.)
Unlike the defendant in Gana, here the evidence did not establish Todd had a break from reality that resulted in a fluctuating level of consciousness. Todd may have experienced an adrenaline rush that resulted in panic and affected his problem solving abilities, but there was no evidence he lost consciousness. Additionally, Todd’s cognitive state may have been affected by his voluntary intoxication, which is not a defense. (Gana, supra, 236 Cal.App.4th at p. 609.) Therefore, the trial court did not err by refusing to instruct the jury with CALCRIM No. 3425.
B. Pinpoint Instruction
Todd argues the trial court erred by refusing to instruct the jury with his pinpoint instruction. We disagree.
“Under appropriate circumstances, ‘a trial court may be required to give a requested jury instruction that pinpoints a defense theory of the case by, among other things, relating the reasonable doubt standard of proof to particular elements of the crime charged. [Citations.] But a trial court need not give a pinpoint instruction if it is argumentative [citation], merely duplicates other instructions [citation], or is not supported by substantial evidence [citation].’ [Citation.]” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 99 (Coffman).)
Here, Todd requested the following pinpoint instruction: “Actual Knowledge of Actual Accident Involving [Todd]’s Vehicle [¶] In this case, . . . Todd’s duty to stop and report the accident is triggered only if and when he was actually aware that an accident occurred involving his vehicle. [¶] If . . . Moriel intentionally propelled herself onto the freeway knowing of the inevitable serious injury or death that would occur, than [sic] . . . Todd was not involved in that accident. If you have a reasonable doubt that . . . Moriel may have intentionally exited the vehicle intending to harm herself, you must find . . . Todd not guilty. [¶] If . . . Moriel’s exit from . . . Todd’s vehicle was not an accident, or if . . . Todd was not aware that her exit was an accident, any subsequent accident involving . . . Moriel (such as her being hit by additional vehicles) would not trigger a duty of . . . Todd to stop, to return to the scene or to report the incident. [People v. Powell (2010) 181 Cal.App.4th 304] [¶] Further, even if . . . Morel [sic] accidentally slipped from the vehicle, if . . . Todd did not realize that this was an accident, . . . Todd had no duty to stop or report. If you have a reasonable doubt that . . . Todd actually knew that . . . Moriel’s exit from the vehicle was an accident, you must find . . . Todd not guilty. [¶] Also, even if . . . Todd actually knew that . . . Moriel had accidentally slipped from the vehicle he did not violate the law if he was physically, mentally or emotionally disabled from stopping or reporting the accident. If you have a reasonable doubt that at the time of the accident, . . . Todd was physically, mentally or emotionally disabled from stopping or reporting the accident, his failure to stop and report at that time is legally excused, and you must find . . . Todd not guilty.”
Todd argues the trial court erred by refusing to give the pinpoint instruction because it highlighted whether he was involved in an accident and was unconscious. But in his reply brief, he concedes that if we reject his sufficiency of the evidence argument, section IV, and his other claim of instructional error, section V.A., his pinpoint instruction was unnecessary. We did and it was. The trial court properly refused to instruct the jury with the pinpoint instruction.
DISPOSITION
The judgment is affirmed.



O’LEARY, P. J.

WE CONCUR:



BEDSWORTH, J.



ARONSON, J.