Filed 10/16/17 P. v. Girard CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Defendant Destry Beargrease Girard appeals from a judgment of conviction for the felony offense of resisting an executive officer (Pen. Code, § 69), and the misdemeanor offenses of driving under the influence of alcohol with two prior convictions (Veh. Code., §§ 23152, subd. (a), 23540, 23546), possessing a device used for smoking a controlled substance (Health & Saf. Code, § 11364, subd. (a)), driving with a suspended or revoked license with a prior conviction (Veh. Code, §§ 13353, 13353.1, 13353.2, 14601.5, subd. (a)), and resisting, obstructing, and delaying a peace officer (Veh. Code, § 148, subd. (a)(1)). He was sentenced to a five-year probationary term and 278 days in county jail with credit for time served of 278 days. On appeal defendant challenges the judgment on one ground, that the evidence was insufficient to sustain his driving convictions. We affirm.

FACTS[1]

On March 4, 2015, Kenneth Strack, a security guard, was patrolling the grounds of a gated bulb farm business. At 3:00 a.m. he drove to the guard shack on the farm located near the back gate. He had been at that the same place approximately 10 or 15 minutes earlier, and, had observed nothing in the street outside the gated area. When he returned this time, the headlights of his car illuminated the area “right outside of the back gate,” where he saw a person, later identified as defendant, “laying in the street along with a motorcycle.”[2] Strack had not heard the motorcycle’s engine and he never saw anyone riding the motorcycle. Strack got out of his car and walked to the gate to get a better look. From inside the gated area, Strack called out to defendant to get his attention, but defendant made no response and “didn’t even move.” Strack thought defendant was seriously hurt, and he did not know if defendant was “killed, “playing opossum, or what,” so he called 911, and reported it.

In response to a 911 dispatch call reporting “a possible major injury collision,” “an accident, ambulance responding, motorcyclist down,” California Highway Patrol (CHP) Officers W. Chase Adams and John Myers, in full uniform, arrived at the scene in their marked police vehicle. As the officers “approached one of the service entrances to the . . . bulb farm,” they saw a Harley Davidson motorcycle lying on its side on the ground. The motorcycle was a fairly heavy, big cruiser-type vehicle. The officers also saw defendant, who “appeared to be sleeping or passed out,” with one leg in “a pocket of space underneath the” motorcycle. Defendant was wearing “a black skullcap type of helmet with the strap under his chin.” Defendant was “unresponsive” when the officers first observed him. Having arrived at around the same time as the officers, medical personnel assessed whether defendant was injured. They found no injuries and attempted to wake defendant by gently shaking him. When defendant woke up, he was startled, and repeatedly said, “ ‘Get off me, bro.’ ” He sat up abruptly and wildly flailed his arms causing everyone around him to step back. Defendant seemed dazed and confused. Officer Adams smelled an odor of alcohol coming from defendant, and his speech was slightly slurred. The officer later observed that defendant’s eyes were “red and watery.” Officer Myers also smelled an odor of an alcoholic beverage on defendant, and, noted that defendant “was sweating profusely and this was a cold night so it seemed like he was on something,” and he was acting erratically. Officer Myers believed, based on his experience, that defendant was under the influence of alcohol and he was impaired for driving purposes. Medical personnel removed defendant’s helmet and helped him to his feet. In order to get defendant to his feet, several officers had to lift the motorcycle upright.

Once defendant was standing, Officer Myers asked him “basic investigation questions,” such as how did he got to the scene, what had happened, and how had the motorcycle fallen down. Defendant did not seem to track the questions nor did he respond appropriately. He never said anything about riding the motorcycle or how he got to the location where he was found. When defendant refused to follow instructions of a basic DUI investigation, Officer Myers told him he was under arrest. Defendant was asked to place his hands behind his back so he could be handcuffed. He resisted being handcuffed, striking and injuring Officer Adams. With the assistance of either one or two other officers, Officers Myers and Adams ultimately subdued and handcuffed defendant. Following defendant’s arrest, Officer Adams checked the status of the motorcycle. The officer found the motorcycle engine “was very warm – hot to the touch and it was a cold morning . . . .” Although the officer was wearing thin protective batting gloves, he could feel the heat of the engine through his gloves.

DISCUSSION

Defendant’s sole argument on appeal is that he is entitled to a reversal of his driving convictions because the evidence failed to prove the necessary element that he “actually drove the [motorcycle].” He asserts there was no evidence that anyone had seen him driving the motorcycle, and the only evidence introduced on the point of actual driving was testimony that the motorcycle engine was warm and he was found wearing a helmet. He then posits that given other evidence, including his physical condition and his location on the ground when he was seen by the security guard, he could have been a passenger and not capable of driving the motorcycle. We conclude defendant’s argument is unavailing.

The element of driving necessary to support the convictions under review “may . . . be established at trial through circumstantial evidence, which is the case here.” (People v. Wilson (1985) 176 Cal.App.3d Supp. 1, 9 (Wilson); see also People v. Nelson (2011) 200 Cal.App.4th 1083, 1094 [“when challenging a conviction (as defendant does here) for driving under the influence, circumstantial evidence of unwitnessed volitional movement may be considered”].) As an appellate court, we “must accept logical inferences that the jury might have drawn from the circumstantial evidence.” (People v. Maury (2003) 30 Cal.4th 342, 396.) “ ‘ “If the circumstances reasonably justify the trier of fact’s findings, [our] . . . opinion . . . that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.” ’ ” (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)

Here, we conclude there was substantial evidence from which the jury could reasonably infer that defendant had driven the motorcycle to the location where he was found. Given the security guard’s testimony that the street was clear 10 to 15 minutes before he saw the motorcycle and defendant, the jury could reasonably find the motorcycle “did not simply materialize at that location” and that “someone drove it there.” (Wilson, 176 Cal.App.3d Supp. at p. 8.) The additional evidence of the early morning observations of the helmeted defendant near or underneath the motorcycle with a warm engine, and, the fact there was no evidence of anyone else in the area at that early morning hour, allowed the jury to reasonably infer defendant had driven the motorcycle to the location where he was found. While the security guard did not specify where “in the street” the motorcycle and defendant were positioned, the jury could reasonably find the motorcycle’s position lying on its side on the ground was not a “normal position” for the vehicle to be stopped. (Ibid.) We are not persuaded by defendant’s reliance on other evidence from which different inferences could have been drawn. It was for the jury to determine whether defendant was the motorcycle’s driver or a passenger driven to the location by an unknown person who then left the area at 3 a.m. “Suffice it to say that the jury apparently discarded” the “passenger” scenario “as being unreasonable and adopted the more likely deduction that defendant had driven himself to the area” shortly before the security guard saw him and the motorcycle lying in the street. (People v. Hanggi (1968) 265 Cal.App.2d Supp. 969, 972.) By his appellate contention, defendant attempts “to reargue on appeal those factual issues decided adversely to [him in the trial court], contrary to established precepts of appellate review.” (Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 398-399.)

DISPOSITION

The judgment is affirmed.

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Jenkins, J.

We concur:

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McGuiness, P. J.

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Siggins, J.