People v. Allen6/12/2002
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.
INTRODUCTION
After appellant Randolph Richard Allen was involved in a multi- vehicle freeway collision, a jury convicted him of driving under the influence and thereby proximately causing bodily injury to a person other than the driver (Veh. Code, § 23153, subd. (a); count 1), driving under the influence (Veh. Code, § 23152, subd. (a); count 2), and being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a); count 3). In a bifurcated proceeding, the trial court found appellant had suffered a prior serious or violent felony conviction and four previous convictions of driving under the influence. (Pen. Code, §§ 451, subd. (d), 1170.12, subds. (a)-(d), 667, subds. (b)-(i); Veh. Code, §§ 23103, 23152, subds. (a), (b)). The trial court imposed three years in state prison on count 1, doubled pursuant to Penal Code section 1170.12, and stayed a sentence of two years, doubled, on count 2, pursuant to section 654; and sentenced appellant to 94 days in county jail on count 3. Pertinent facts are included in the discussion.
Appellant contends with respect to the Vehicle Code counts only:
1. There was insufficient evidence to support the convictions in counts 1 and 2.
2. The trial court improperly failed to instruct the jury on proximate cause pursuant to CALJIC No. 3.40 with respect to count 1.
3. The instructions given improperly converted the count 1 offense into a strict liability crime, deprived appellant of his defense, and violated federal due process.
4. The trial court erred in failing to instruct the jury with respect to count 1 on the lesser included offense of driving under the influence (Veh. Code, § 23152), pursuant to CALJIC No. 17.10; or, in the alternative, appellant cannot stand convicted of both Vehicle Code section 23153 and Vehicle Code section 23152, a lesser included offense.
5. The trial court erred in accepting appellant's waiver of counsel; or, in the alternative, abused its discretion in not appointing advisory counsel.
We strike the conviction on count 2 and otherwise affirm the judgment.
DISCUSSION
1. Sufficiency of the Evidence
Background
We review the evidence in the light most favorable to the judgment. (People v. Johnson (1980) 26 Cal.3d 557, 562; People v. Oyaas (1985) 173 Cal.App.3d 663, 668.)
At approximately noon on May 2, 2000, Veronica Montero was driving westbound on the 134 freeway in light traffic in clear weather. She noticed appellant's van in the slow lane, going 40 to 45 miles an hour. The van was not being driven erratically. The van suddenly made a U-turn and came into her lane in front of her. She did not see any indication of braking. Ms. Montero made eye contact with appellant, who was at the wheel of the van. Ms. Montero testified appellant "tried to turn the wheel back like he noticed that, `Oh, shit, what am I doing?'" She further testified: "He tried turning the wheel, though, when he realized, I guess." "He was just, like, doing this bit, like, `Oops,' or something." She braked but was unable to avoid colliding with the van. As the airbags deployed in Ms. Montero's vehicle, she saw the van wobble and flop over on the driver's side. Her vehicle spun around and was hit by another vehicle. Appellant
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