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People v. McAlpin1/7/2005
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 977.
Jack Anthony McAlpin (defendant) appeals after the trial court denied his motion to withdraw his no contest plea to driving under the influence of an alcoholic beverage or drug and negligently causing bodily injury to another person. (Veh. Code, § 23153, subd. (a) (§ 23153(a)).) Defendant argues that the court should have granted the motion on the basis of his factual innocence because the victim had not suffered bodily injury. Since the record indicates otherwise, we affirm the judgment.
Facts and Proceedings
On May 31, 2001, at approximately 2:15 p.m., an Oroville police officer was dispatched to a traffic collision on Oro Dam Boulevard at 5th Avenue in Oroville. Upon arriving, the officer found a pickup truck abandoned in the roadway. Witnesses reported that the truck had rear-ended another vehicle that was waiting at a red light, and that the truck's driver had fled. The driver of the other vehicle, B.K., complained of neck pain and was transported by ambulance to Oroville Hospital. A license plate check disclosed defendant was the owner of the abandoned truck. While the officer was waiting for tow trucks to arrive, a witness noticed that defendant had returned to the scene, and alerted the officer. Defendant was detained and transported to Oroville Hospital, where the officer noticed that defendant appeared to be under the influence of a central nervous system stimulant. Defendant admitted he would test "dirty" because he had "used yesterday." The officer arrested defendant and transported him to the Butte County Jail, where booking personnel discovered a hypodermic syringe in his pocket.
Defendant was charged with driving under the influence of an alcoholic beverage or drug and negligently causing bodily injury to another person (Veh. Code, § 23153(a)--count 1), driving with a blood-alcohol level of .08 percent or greater and negligently causing bodily injury to another person (Veh. Code, § 23153, subd. (b)--count 2), and driving without insurance (Veh. Code, § 16028, subd. (a)--count 3).
Pursuant to a negotiated plea, defendant pleaded guilty to count 1 in exchange for dismissal of the remaining two counts. (Defendant and the People state that defendant pleaded no contest to count 1, but the written change of plea form, the oral change of plea in open court, and the minute order from the change of plea hearing establish that defendant in fact pleaded guilty to count 1. The parties' error in this respect apparently stems from defendant's motion to withdraw his plea or the probation report, both of which mistakenly report that defendant pleaded no contest to count 1.)
The probation report stated that B.K. had been contacted on June 16, 2002, and that she reported that she was X-rayed and examined following the accident, but that her doctor told her she "would only be sore." B.K. said the doctor offered her pain medication, but she declined. The probation report recommended that defendant receive the upper term of three years on count 1 based principally on defendant's lengthy criminal history and the absence of any mitigating circumstances.
After the probation report was filed, defendant moved to withdraw his plea on the ground that he was factually innocent of the offense because B.K. had not suffered any bodily injury.
The court denied the motion, judgment was entered, and defendant
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