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People v. Chavez6/19/2002
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 977.
Juan Pedro Chavez appeals from the judgment entered following a jury trial that resulted in his conviction of evading an officer in willful disregard for the safety of persons or property (Veh. Code, § 2800.2, subd. (a)); count 1), child abuse (Pen. Code, § 273a, subd. (a); count 2), misdemeanor driving under the influence of alcohol (Veh. Code, § 23152, subd. (a); count 3), and misdemeanor driving while having a .08 percent or higher blood alcohol level (Veh. Code, § 23152, subd. (b), count 4) and findings that he had suffered two prior convictions for violating Vehicle Code section 23152, subdivision (b) (Veh. Code, §§ 23540, 23546; counts 3, 4). He was sentenced to prison for the term of six years and eight months, consisting of the six-year upper term on count 2 and eight months, or one-third the 24-month middle term, on count 1. The court also imposed a one-year county jail term on each of counts 3 and 4 to be served concurrently with count 2.
Appellant contends he was deprived of due process and a fair trial (U.S. Const., 14th Amend.), because the trial court refused to exclude evidence of his blood alcohol test as a late discovery sanction and, even if properly admitted, the court nonetheless improperly refused to give a cautionary instruction based on such late discovery. He contends his privilege against self-incrimination (U.S. Const., 5th, 14th Amends.) was abridged when the court allowed admission of his post arrest statement obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436. He further contends the improper curtailment of his cross-examination of a witness violated his right to confront his accusers (U.S. Const., 6th Amend.) and the prosecutor committed prejudicial misconduct by misstating the law regarding voluntary intoxication.
He assigns three prejudicial instructional errors: (1) the giving of CALJIC No. 9.37, which instructed that child endangerment was satisfied by proof of criminal negligence; (2) the failure to instruct CALJIC No. 2.52 (flight after crime) did not apply to count 1; and (3) the giving of CALJIC No. 17.41.1 (jury nullification). He also contends the court violated the multiple punishment bar of section 654 by sentencing him on all counts.
By letter dated April 8, 2002, we invited the parties to brief this issue: "Does the trial court's failure to modify CALJIC No. 9.37 sua sponte to insert the word `willful' before `criminal negligence' in the phrase `as a result of criminal negligence,' or to give an equivalent instruction, mandate reversal of the judgment? (See People v. Valdez [(2002) 27 Cal.4th 778].)" We have received their respective responses.
Based on our review of the record and applicable law, we modify the judgment by staying appellant's one-year jail term on count 4, and, as modified, we affirm the judgment.
FACTUAL SUMMARY
We view the evidence in the light most favorable to the People and presume the existence of every fact the trier could reasonably deduce from the evidence that supports the judgment. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) The following summary is based on this appellate standard of review.
On July 30, 2000, around 7:30 p.m., appellant led California Highway Patrol officers on a dangerous car chase which lasted for around 10 minutes and endangered a child who was two to four years old and others. Uni
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