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People v. Lopez6/3/2002
Appellant Steven Mejia Lopez (Lopez) was driving with a blood alcohol level of approximately .21 when he attempted to turn the vehicle, lost control, and the vehicle overturned, injuring two passengers. He was convicted by a jury of three counts of willful harm or injury to a child; one count of driving under the influence and causing bodily injury to another person; being an unlicensed driver; and driving without evidence of financial responsibility. Lopez admitted to four prior prison term allegations and a prior serious felony allegation.
On appeal, Lopez asserts instructional error mandates reversal of his convictions and that an adequate waiver of his constitutional rights did not precede his admission to the prior prison term and prior serious felony allegations. The People concede that Lopez did not knowingly and voluntarily waive his constitutional rights.
We will affirm the convictions, reverse the true findings on the prior prison term and prior serious felony allegations, and remand for further proceedings consistent with this opinion.
DISCUSSION
I. No Instructional Error
Criminal Negligence Instruction
Lopez contends the trial court erred when it instructed the jury on criminal negligence using CALJIC Nos. 3.36 and 4.45. These instructions were limited to the Penal Code section 273a, subdivision (a) offenses (willful harm or injury to a child), and Lopez contends these offenses are general intent crimes, thus instructing on criminal negligence was error.
CALJIC NO. 4.45 (accident and misfortune) was requested by the defense. If CALJIC No. 4.45 is given, then CALJIC No. 3.36 (criminal or gross negligence - defined) is to be given sua sponte. (See People v. Thurmond (1985) 175 Cal.App.3d 865, 872-874; Use Note to CALJIC No. 3.36 (6th ed. 1996) p. 161.) In addition, it appears that the defense requested CALJIC No. 3.36.
The doctrine of invited error bars a defendant from challenging an instruction given by the trial court if the defendant made a conscious and deliberate tactical choice to request the instruction. (People v. Lewis (2001) 25 Cal.4th 610, 667.) The record reflects that the defense made a conscious tactical choice to request the challenged instructions. Having requested the instructions, the error, if any, was invited and Lopez cannot assert on appeal that he was prejudiced. (Ibid.)
Lesser Included Offense
Lopez was convicted of a violation of Vehicle Code section 23153, subdivision (b), driving with a blood alcohol level in excess of .08 and causing injury to another. A conviction under Vehicle Code section 23153, subdivision (b), requires proof that the driver of the vehicle: (1) had a blood alcohol level in excess of .08; (2) concurrently did an act forbidden by law in the driving of the vehicle; and (3) a person other than the driver was injured as a proximate result of the driver's act. (People v. Oyaas (1985) 173 Cal.App.3d 663, 667.) Lopez concedes that the prosecution clearly established the first element of the offense. He maintains, however, that the evidence of the second and third elements was equivocal, at best, and the trial court should have instructed on a lesser included offense sua sponte.
Contrary to Lopez's contention, there was ample evidence that Lopez was driving in an unsafe manner and made an unsafe turn. The People contended that Lopez made an unsafe turn in violation of Vehicle Code section 22107, which caused the vehicle to overturn and injure two passengers. One investigating officer testified regarding the striations, skid marks, and tire friction marks left at the scene. The vehicle was found upside down
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