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People v. Thoma1/26/2005
CERTIFIED FOR PUBLICATION
Silence is not always golden. When a superior court judge accuses a defendant of breaking just about every bone in a victim's body, one would expect some denial or minimization if the accusation were untrue. As we shall explain, statutory and decisional law are consistent with the meaning of what is left unsaid in a conversation: Silence in the face of an accusation is a tacit admission of the truth thereof.
William Louis Thoma appeals from the judgment entered following his guilty plea to possession of methamphetamine. (Health & Saf. Code, § 11377, subd. (a).) He was sentenced to prison as a "two-striker" and contends that his 1995 prior conviction of driving under the influence causing "bodily injury" in violation of Vehicle Code section 23153, subdivision (a), does not constitute a strike within the meaning of California's "Three Strikes" law. (Pen. Code, §§ 667, subds.(b)-(i), 1170.12.) The issue is whether the record of the 1995 conviction, which was based on a guilty plea, shows that appellant inflicted "great bodily injury" on the victim. (See § 1192.7, subd. (c)(8).) The trial court found that great bodily injury had been inflicted and that the conviction is a strike. Appellant contends that the trial court relied upon inadmissible hearsay evidence. Without this hearsay evidence, appellant argues, the evidence is insufficient to support the determination that the prior conviction is a strike. We affirm.
Infliction of Great Bodily Injury Required for Prior Conviction to Qualify as a Strike
Vehicle Code section 23153, subdivision (a), provides: "It is unlawful for any person, while under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver." " 'Bodily injury means just what it says - harm or hurt to the body. Common sense requires more for conviction than a "shaking up" of a person in a car which is in an accident, or fright, or a minor headache; it means very obviously a hurt to the body.' " (People v. Dakin (1988) 200 Cal.App.3d 1026, 1035.) "Bodily injury" does not mean substantial or great bodily injury. (Id., at p. 1036.)
A felony conviction for violating Vehicle Code section 23153, subdivision (a), constitutes a strike only if the defendant "personally inflicts great bodily injury on any person, other than an accomplice . . . ." (§ 1192.7, subd. (c)(8); see also §§ 667, subd. (d)(1), 1170.12 subd. (b)(1).) Thus, the People were required to show that appellant had inflicted great bodily injury.
Trial on the Prior Conviction
At the trial on the prior conviction, the trial court received in evidence the information, the probation report, and transcripts of the preliminary hearing, guilty plea, and sentencing.
At the 1995 preliminary hearing a witness testified that appellant was riding a motorcycle and struck a pedestrian in a crosswalk. The pedestrian was "thrown out of the crosswalk." The only evidence of the pedestrian's injuries was a statement made by a nurse to a police officer. The officer testified that the nurse had "said that the victim was in surgery . . . for two fractured arms, two fractured legs and fractured clavical and blunt trauma to the head."
The 1995 plea, sentencing, and restitution hearing were combined in a single proceeding. The following colloquy occurred between the court and counsel: "[The court:] efendant is to pay restitution to the victim in this ca
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