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People v. Cortes8/12/2004
Sergio Cortes appeals from the judgment entered upon his conviction by jury of leaving the scene of an accident that resulted in injury (Veh.Code, § 20001, subd. (a)) [FN1] and causing injury while driving under the influence of alcohol (§ 23153, subd. (a)), with findings as to the latter count that he personally inflicted great bodily injury on two individuals (Pen.Code, § 12022.7, subd. (a)) and that he proximately caused bodily injury to three individuals (§ 23558). He was sentenced to eight years eight months in prison.
FN1. All further statutory references are to the Vehicle Code unless otherwise indicated.
Appellant contends (1) that the trial court abused its discretion in admitting irrelevant and prejudicial evidence of a domestic violence incident; (2) that the trial court erred in not correctly instructing the jury, sua sponte, regarding the rebuttable presumption of section 23610; (3) that, if the trial court did not have a sua sponte duty to so instruct, trial counsel provided ineffective assistance in failing to request a proper instruction; (4) that the trial court erred in failing to instruct that the jury had to agree unanimously on the Vehicle Code violation that caused the injury; (5) that the matter must be remanded for proper consideration of a Marsden motion made before sentencing; and (6) that the abstract of judgment must be corrected. We will order that the abstract of judgment be corrected and affirm the judgment.
FACTS
At approximately 7:20 p.m. on June 16, 2002, as Jose Trejo (Trejo) was driving in the No. 2 southbound lane of the 101 freeway in Hollywood, he observed appellant's Lincoln Towncar, which had a large Mexican flag tied down on its hood, driving at 80 to 85 miles per hour behind him in the No. 1 lane. Appellant's car was "wiggling" or swerving in its lane, causing Trejo to fear that appellant's car was going to strike his vehicle. It appeared that the Lincoln was trying to pass the green Toyota 4-Runner sport utility vehicle (SUV) in front of it by swerving into Trejo's lane. Trejo slowed down. After the Lincoln passed Trejo's car, appellant lost control of the vehicle, hit the center divider, and struck the green SUV.
Joseph Trejo, Trejo's teenage son, testified that appellant was driving at approximately 80 to 85 miles per hour and began weaving in the No. 2 lane as it passed the Trejo vehicle, which was in the No. 3 lane. Appellant's car spun out and the back of it almost hit the center divider. It spun 90 degrees and appeared to skid across the freeway, then the rear driver's side of the Lincoln struck the rear passenger side of the green SUV, which was in the No. 3 or 4 lane.
Max Molina, who was driving a vehicle in the No. 3 lane, observed appellant's car, which was in the No. 1 or No. 2 lane, pass him at a speed of 65 to 70 miles per hour. When the Lincoln was several cars ahead of him, he saw the Lincoln "swiveling" and then saw it fishtail out of control into other lanes, going towards the shoulder, before crashing into another vehicle.
When the Lincoln hit the green SUV, which was driven by Tadeo Climaco, the SUV flipped over and landed upside down. Climaco and two children in the rear seat were able to crawl out through the windows, but the front-seat passenger, Lilian Hernandez, was unable to get out of the SUV because of injuries to her knee. Her injuries resulted in a scar and limited her ability to walk distances. At the time of trial, glass remained in the skin of her leg and arm. Climaco suffered injuries to his wrist which caused the bone to "pop[ ]" out, required stitches, and left a big scar.
*2 After appellant's Lincoln hit the SUV, the Lincoln continued across the freeway and struck the driver's side of a Montero minivan that was parked on the shoulder.
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