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People v. Lopez6/3/2002
and 70 feet from the road. Lopez's passenger testified she recalled Lopez "trying to get control of the car" by turning the steering wheel. Two investigating officers testified, based upon their training and experience, that the physical evidence demonstrated that Lopez had made an unsafe turning movement which caused the vehicle to overturn.
As for the third element, the evidence established that Lopez's adult passenger suffered an injury to her shoulder and left arm, as well as a laceration on her head, which required several staples to close and left a scar. In addition, one of the three children in the vehicle suffered a broken leg. Clearly, these injuries would not have occurred but for Lopez's driving.
The trial court need not instruct on lesser included offenses whenever any evidence, no matter how weak, is presented to support an instruction. (People v. Barton (1995) 12 Cal.4th 186, 195, & fn. 4.) Such an instruction need be given only when the evidence is substantial enough to merit consideration by the jury. (Ibid.) In Lopez's case, the evidence established that he was guilty of the crime charged. The evidence of guilt of some lesser offense was relatively weak and did not merit a sua sponte instruction on a lesser included offense.
II. Invalid Waiver of Rights
The amended information alleged that Lopez had suffered one prior conviction within the meaning of Penal Code section 667, subdivisions (b) through (i), and Penal Code section 1170.12, subdivisions (a) through (d). It was also alleged that Lopez had served four prior prison terms within the meaning of Penal Code section 667.5, subdivision (b). On July 25, 2000, Lopez denied all the allegations.
On December 7, 2000, shortly before the jury returned verdicts on the substantive offenses, Lopez waived a jury trial with respect to the prior conviction and prior prison term allegations. Then, the verdicts were received, the jury was discharged, and the court took a short recess. Following the recess, Lopez admitted the prior conviction and prior prison term allegations.
Lopez asserts that he was not advised of, nor did he waive, his constitutional rights. The People concede this issue. The record reflects that the admissions were not knowingly and voluntarily made. (People v. Campbell (1999) 76 Cal.App.4th 305, 309-310.) So, we reverse the true findings on the prior conviction and prior prison term allegations and remand for retrial as to these allegations. (People v. Sotello (2002) 94 Cal.App.4th 1349, 1356-1357.)
DISPOSITION
The true findings on the prior conviction and prior prison term allegations are reversed. The sentence is vacated. The case is remanded to the trial court for further proceedings consistent with this opinion. In all other respects, the judgment is affirmed.
WE CONCUR:
Buckley, Acting P.J.
Wiseman, J.
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