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People v. Anthony11/5/2004
A jury convicted defendant Mark Anthony of failing to stop at an accident resulting in property damage (Veh.Code, § 20002, subd. (a)), driving with a suspended license (Veh.Code, § 14601.2, subd. (a)), two counts of driving under the influence (DUI) (Veh.Code, § 23152, subd. (a)), and two counts of driving with .08 percent or greater blood-alcohol content (Veh.Code, § 23152, subd. (b)). In a bifurcated proceeding, the jury further found he committed two of the felony offenses while released from custody on the other felony charges (Pen.Code, § 12022.1), he was previously convicted of a strike under the Three Strikes law (Pen.Code, §§ 667, subds.(b)-(i), 1170.12), and he had two prior DUI convictions for which he had also served prison terms within the meaning of Penal Code section 667.5, subdivision (b). The trial court sentenced defendant to state prison for an aggregate term of 11 years four months.
On appeal, defendant raises two issues. First, he notes that the charges were based on two separate incidents and claims the trial court erred by denying a severance. Second, he claims there is insufficient evidence to sustain the strike enhancement. Neither of these claims is persuasive, and we shall therefore affirm the judgment.
FACTS
A. First Incident
On September 29, 2001, at approximately 9:00 p.m., Sergeant David Yenne of the Grant School District Police Department noticed defendant driving and apparently slowing for a turn. Defendant subsequently "corrected the turn" and continued on before swerving into a parking lot, back into the road, and then back into the parking lot. Defendant stopped so his car was positioned partly in the road and partly in the parking lot, and Sergeant Yenne stopped behind him and activated his emergency lights.
Sergeant Yenne noticed defendant's eyes were bloodshot and glassy, his speech was slightly slurred, and he smelled of alcohol. Defendant said he had just left his girlfriend's house and admitted he had been drinking there. He did not have a driver's license. Yenne called his dispatcher and asked for a California Highway Patrol (CHP) officer to meet him at the scene to conduct a DUI evaluation.
CHP Officer Ragnar Schubert arrived at approximately 9:23 p.m. Officer Schubert also noticed that defendant exhibited signs of intoxication, including the strong odor of alcohol, red and watery eyes, and somewhat slow and slurred speech. Defendant said he had last eaten at approximately 5:00 p.m. and had drank half a can of Budweiser beer 45 minutes prior, and had finished drinking within the last five to 10 minutes. Schubert had defendant do five field sobriety tests, which he did not perform satisfactorily. After a preliminary alcohol screening test indicated the presence of alcohol, Schubert arrested defendant. Defendant subsequently became upset and angry. After defendant was arrested, Sergeant Yenne searched the car. He found a large, open beer can in a paper bag in the front passenger side of defendant's car.
*2 A blood sample taken from defendant at approximately 11:15 p.m. had a blood-alcohol level of .20 percent. It appeared to Schubert that defendant's level of intoxication might have increased slightly after their initial encounter.
B. Second Incident
On May 20, 2002, at approximately 11:00 p.m., Zakayaiah Smith was walking toward her car when defendant drove rapidly down the street, without using his headlights, and swerved and hit her car. Defendant appeared to be seriously injured when his head hit the front windshield, and Smith went to investigate. As she approached, defendant got out of the car and she noticed his face was bloody. It appeared defendant had been drinking; he staggered and "could barely stand up straight." He said he was going to leave, and Smith told him he c
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