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People v. Hoffman2/11/2003
PROCEDURAL HISTORY
An information filed in Stanislaus Superior Court on June 1, 2001, charged appellant Kerry Allan Hoffman with driving under the influence of alcohol causing injury in violation of Vehicle Code section 23153, subdivision (a) (count I), and driving having a .08 percent or more of alcohol in his blood and causing injury in violation of Vehicle Code section 23153, subdivision (b) (count II). It was alleged, as to both counts, that appellant personally inflicted great bodily injury under Penal Code section 12022.7.
On June 1, 2001, appellant pleaded not guilty to the charges, and denied the appended enhancement allegations. On July 31, 2001, appellant's Penal Code section 995 motion to set aside the information and/or the enhancement allegations under Penal Code section 12022.7, was denied by Judge Girolami.
On August 23, 2001, before Judge Lacy appellant, pursuant to negotiations with the district attorney, withdrew his pleas of not guilty to counts I and II and entered a plea of no contest to count I, Vehicle Code section 23153, subdivision (a). As part of the negotiations with the district attorney, appellant would receive a grant of felony probation, with a maximum of 180 days in jail. Appellant did not admit the great bodily injury enhancement, and after waiving his right to a jury trial on the enhancement, agreed the truth of the enhancement would be tried to the court at a later date. Appellant was advised by the court that a true finding on the enhancement allegation would not effect the negotiated terms with the district attorney's office, but in the event he violated his probation it could result in a term of imprisonment up to six years. Appellant was also advised that a true finding on the enhancement could result in a possible future strike, in the event appellant were to be later convicted of a subsequent felony. Count II was dismissed on motion of the prosecutor.
Thereafter the court suspended imposition of sentence and admitted appellant to three years of formal probation conditioned upon, amongst other things, appellant serving 180 days in custody.
Appellant's court trial on the enhancement was held on September 7, 2001, before Judge Whiteside. The court found as true, beyond a reasonable doubt, that appellant had personally inflicted great bodily injury as defined in Penal Code section 12022.7.
Appellant timely filed his notice of appeal.
STATEMENT OF FACTS
On October 18, 2000, the victim Lance Brown (Brown), was riding his Yamaha V Star 650 Classic motorcycle south on Coffee Road in Modesto. Coffee Road has four lanes of travel, two going south and two going north, with a neutral, or turning, lane between the four lanes of travel. Mr. Brown was traveling in the number one lane when he saw a white pickup pull out from East Coolidge and across oncoming traffic onto southbound Coffee Road. Brown testified the white pickup truck slowly crossed oncoming traffic, " lower than most people would have if they pulled out in front of other vehicles or at least slower than I would have." Another motorcycle, traveling north on Coffee Road, nearly hit the white pickup truck due to its slow speed in crossing the northbound lanes of Coffee Road. Brown estimated the white pickup truck was moving at 10 to 15 miles an hour as it crossed traffic, and then as the white pickup truck entered the number one lane of southbound Coffee Road ahead of Brown, it slowed to 5 to 10 miles an hour as Brown approached from behind. Brown did not see any traffic ahead of the white pickup that would have caused its driver to slow to 5 to 10 miles an hour. When Brown approached within 25 feet behind the w
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