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People v. Christenson9/30/2002
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.
The defendant appeals his convictions for assault with a deadly weapon or force likely to produce great bodily injury and driving under the influence of alcohol causing injury to two separate victims, in violation of Vehicle Code sections 23153(a) and (b). Defendant contends the assault charge is not supported by sufficient evidence and claims instructional error. He contends that he should not have been convicted of separate violations of section 23153 for one act of driving with injury to multiple victims. We agree with the latter argument and reverse defendant's convictions on counts five and six. We otherwise affirm the judgment.
Factual and Procedural Background
On January 21, 2000, approximately 10:00 p.m., Contra Costa County Sheriff's Deputies David Bullard and Leonard Curry responded to a report of a loud party. Defendant and his friend Michelle Hawkins had been at the party for an hour or two. Both were intoxicated. At some point, defendant and Hawkins left the party and walked to defendant's car. They sat in the car for 15 to 20 minutes as Hawkins talked to defendant, trying to sober him up.
Defendant then started the car and immediately backed into a shed. The crashing sound attracted Bullard and Curry. They approached the car and spoke with defendant. After ordering defendant to turn off the car and remain inside, Bullard contacted the California Highway Patrol to request a field sobriety test. Shortly thereafter, defendant again started the car, but turned it off at Bullard's request. Defendant then tried to leave the car, but Bullard ordered him to remain seated.
About a minute later, defendant turned on the car a third time. He looked at Hawkins and told her to "hang on." Bullard was standing in front of the car, almost directly in front of the driver's side headlight. He was about six feet from the front of the car. Bullard walked toward the car, put his hand on the hood and ordered defendant to turn off the car. Defendant drove forward. Bullard quickly moved backward about five or six steps, keeping pace with the moving car. Bullard hit the hood with both hands and yelled at defendant to stop. Defendant's window was down and he looked at Bullard. Bullard, fearing that he might fall under the moving car, jumped out of the way. Bullard estimated that defendant was driving about five to ten miles per hour.
Defendant turned onto Taylor Road and accelerated to about 20 miles per hour. Arnold Schmidt, who had also been at the party, was walking along the shoulder on the opposite side of the road. Defendant sped around a corner, lost control and struck Schmidt. The car then spun and hit a fence.
Schmidt, who was airlifted to the hospital, was hospitalized for over a week and had a metal plate implanted in his pelvis. He was unable to walk for more than a month because of his injuries. Hawkins was treated at a hospital for neck and back pain.
Officers arrested defendant and placed him in a patrol car. He struggled with the officers, kicking one of them in the chest. Defendant also kicked out the window of the patrol car. His blood alcohol level two hours after his arrest was .23 percent.
The jury convicted defendant of assault with a deadly weapon or by force likely to produce great bodily injury; resisting arrest; separate counts of driving und
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