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People v. Struck11/13/2002
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 977.
Appellant, Frederick James Struck, was charged by information with driving under the influence of any alcoholic beverage or drug and causing great bodily injury to another (Veh. Code, § 23153, subd. (a) [count one]) and driving with a blood alcohol level of .08 percent or more and causing bodily injury to another. (Veh. Code, § 23153, subd. (b) [count two].) It was additionally alleged that in the commission of each offense appellant personally inflicted great bodily injury that caused a victim to become comatose due to brain injury or to suffer paralysis, and personally inflicted bodily injury on two victims, thus making applicable the enhancement provisions of Penal Code section 12022.7, subdivisions (a) and (b). The information further alleged that in connection with each offense appellant proximately caused injury to four persons, which also exposed him to the enhancement provisions of Vehicle Code section 23558. It was alleged, finally, that he had two prior felony convictions, rendering him presumptively ineligible for probation. (§ 1203, subd. (e)(4).)
Appellant entered a plea of not guilty and denied the additional allegations. On July 20, 2000, a jury found him guilty as charged, with the exception that it found the great bodily injury enhancement allegation pertaining to one victim (Gail Shinn) to be not true. Appellant admitted the alleged prior convictions.
The court denied probation, sentenced appellant to the midterm of two years on count one, enhanced by five years pursuant to section 12022.7, subdivision (b), plus two years on count two, for a total state prison term of nine years. This timely appeal followed.
Appellant's sole claim on appeal is that imposition of the five-year enhancement was error because the evidence is insufficient to establish that the paralysis suffered by one of the persons injured by appellant's offenses is "permanent," as required by subdivision (b) of section 12022.7.
We disagree and shall affirm the judgment.
FACTS
We describe only the basic facts and those facts pertinent to the legal issue presented.
During the early evening of August 22, 1999, Roberto Garcia was traveling east on Willow Pass Road at about 35 miles per hour in the fast lane. When the green Saturn in front of him slowed and the driver indicated he was going to make a left turn, Garcia gradually slowed to about 20-25 miles an hour. Planning to change lanes, Garcia looked in the mirror on the right side of his truck and saw a blue truck behind him. This truck suddenly hit him in the right rear. A moment later it hit him again, this time on the right side. As a result of the first impact, Garcia's head broke the rear window of his cab; as a result of the second, his head snapped forward and his nose and mouth hit and broke the steering wheel. Garcia's facial injuries required 17 stitches and a four-day hospital stay. At the time of trial, which was 11 months after the injury, his back and neck still hurt.
Cesar Ramirez, Garcia's passenger, testified that the initial collision caused his head to hit the rear window of the cab. It also propelled Garcia's truck across the double lines and into oncoming traffic, where it was hit by a blue car. The impact of this second collision caused Ramirez's head to hit the window on the passenger side of the tru
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