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People v. Kibby6/4/2003
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Wanda June Kibby appeals from a judgment of conviction of driving under the influence of alcohol with three prior offenses (Veh. Code, §§ 23152, subd. (a), 23550); driving with a blood alcohol level of .08 or higher with three prior offenses (Veh. Code, §§ 23152, subd. (b), 23550); and resisting arrest (Pen. Code, § 148). She contends that the trial court erroneously admitted a hearsay statement of an eyewitness as a spontaneous statement (Evid. Code, § 1240), also known as an excited utterance. We find any error to be harmless, and affirm because sufficient evidence besides the spontaneous statement supports appellant's driving with a level of .08 or higher.
I. FACTS
We view the facts in the light most favorable to the judgment of conviction. (People v. Barnes (1986) 42 Cal.3d 284, 303; People v. Neufer (1994) 30 Cal.App.4th 244, 247.)
At approximately 5:00 p.m. on February 10, 2002, California Highway Patrol Officer Richard Barry went to the Las Palmas Trailer Park in Crescent City. He had been told by a passing motorist that a dark- colored van had struck and damaged a power box at the trailer park entrance. When Barry arrived at the trailer park he saw that the power box had been struck and dislodged four feet from its base. He also saw skid marks and a mirror from a vehicle. Within 30 seconds to a minute Barry radioed dispatch to have the power company come out and deal with any live electrical wires.
As Barry stood in front of the damaged power box, Jack Miller walked up to him. Miller was walking rapidly. The two had a "conversation," after which Barry believed appellant was the driver who hit the box " ased on Mr. Miller's statements of her driving." Barry saw appellant's daughter, Bonnie, "shortly behind" Miller. Bonnie walked into the entrance to the trailer park.
Barry continued to speak to Miller. Then Miller saw his van coming down the road, turn into the trailer park, and stop in the entrance. Two women got out. Appellant was the passenger. Barry asked the driver what had happened, referring to the van and the power box. The driver said she didn't know, and she was only trying to get appellant home. Appellant began to jog into the trailer park. Barry gave chase, stopped her, and asked her what was going on. She was uncooperative and smelled of alcohol.
Barry told appellant he was conducting a DUI investigation and walked appellant back to the van. He had another conversation with Miller. He formed the opinion that appellant was intoxicated. Appellant failed a field sobriety test.
Barry placed appellant under arrest for driving while intoxicated, " ased on Mr. Miller's statement and my observation of her intoxication." Appellant yelled profanities and resisted arrest. Bonnie was present when appellant was arrested and was "agitated."
After the arrest Barry noticed Miller changing a flat tire on the van. Barry had not previously noticed the tire was flat.
Barry took appellant to the sheriff's station, where she took a breathalyzer test. It was stipulated that appellant had a .16 blood alcohol level at the time the test was administered.
Miller testified that he had known appellant all her life, and she had been staying with him because she had just got out of prison. On February 10, 2002, Miller returned from a bi
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