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People v. Powell

January 25, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JEFFREY DOUGLAS POWELL, DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Superior Court of Placer County, Larry D. Gaddis, Judge. Reversed in part and affirmed in part. (Super. Ct. No. 6262340).

The opinion of the court was delivered by: Sims, J.

CERTIFIED FOR PARTIAL PUBLICATION*fn1

This case arises out of a police chase in which a drunk driver, defendant Jeffrey Douglas Powell, attempted to elude officers by car and then on foot. While fleeing, defendant conspired with his mother to falsely report the car stolen in an effort to avoid identification as the driver.

Defendant was charged with five felonies and five misdemeanors. The felonies included driving under the influence of alcohol (DUI), causing injury (Veh. Code, § 23153, subd. (a) - Count 1),*fn2 driving with an unlawful blood alcohol level, causing injury (§ 23153, subd. (b) - Count 2), leaving the scene of an injury accident (§ 20001, subd. (a) - Count 3), unsafe driving while fleeing a pursuing officer (§ 2800.2, subd. (a) - Count 4), and conspiracy to file a false police report (Pen. Code, §§ 148.5, 182, subd. (a)(1) - Count 5). The information further alleged defendant injured more than one victim (§ 23558), had a prior DUI conviction (§ 23560), had a prior serious felony conviction (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subd. (a)), and served a prior prison term (Pen. Code, § 667.5, subd. (b)). The charged misdemeanors included two counts of resisting a peace officer (Pen. Code, § 148, subd. (a)(1) - Counts 6 & 7), driving with a license suspended for a DUI conviction (§ 14601.2, subd. (a) - Count 8), driving with a license suspended for no proof of insurance (§ 14601.1, subd. (a) - Count 9), and reckless driving (§ 23103, subd. (a) - Count 10).

During trial, the court granted defendant's motion to dismiss the two DUI felonies but substituted the lesser included misdemeanor DUI offenses (§ 23152, subd. (a)) and driving with an unlawful blood alcohol level (§ 23152, subd. (b)). The jury convicted defendant on all the charges and found true the allegations of injuring more than one victim and having a prior DUI conviction. The trial court found true allegations that defendant had a prior serious felony conviction, and served a prior prison term. The court sentenced him to a term of seven years and eight months in state prison.

On appeal, defendant contends (1) the trial court lacked jurisdiction to substitute the lesser included misdemeanors for the felony DUI charges, (2) insufficient evidence supports his conviction of leaving the scene of an injury accident, (3) the trial court erred in failing to conduct a hearing on possible juror misconduct, (4) his trial attorney was ineffective in failing to investigate information contained on a cell phone found near the scene, and (5) his sentence for driving with a license suspended for no proof of insurance must be stayed pursuant to Penal Code section 654.

In the published portion of the opinion, we conclude the trial court did not err in substituting two misdemeanor charges for two felony charges for which there was insubstantial evidence. However, we find that no substantial evidence supports defendant's conviction for violation of section 20001.

In the unpublished portion of the opinion, we conclude that defendant's sentence for violation of section 14601.1 must be stayed pursuant to Penal Code section 654. But we conclude defendant's other contentions of error lack merit.

Accordingly, we shall reverse defendant's conviction on count 3; stay the sentence on count 9; and otherwise affirm the judgment.

FACTS

Around 2:30 a.m. on July 30, 2006, Roseville Police Officer Andrew Bonner was driving a marked patrol car when he noticed a pack of five or six cars traveling together in a close formation on Cirby Way. Each car contained at least three teenagers. The officer decided to follow the cars. He soon observed the lead car, a silver-colored Chevrolet Malibu, make a reckless turn. While driving to intercept the Chevrolet, the officer saw a passenger lean his body out of the car to wave his arms at the other cars. Officer Bonner turned on his emergency lights and used a loudspeaker to order the driver to pull over. After several hundred yards, the Chevrolet came to a stop.

Officer Bonner got out of his patrol car and walked to the Chevrolet. He observed the driver was wearing a green baseball cap and his shoulders and arms were exposed. The passenger in the front was a white male in his early 20s who was wearing a tank top. The officer also noticed a passenger in the back seat.

Just as the officer reached the rear passenger door, the Chevrolet took off at a high rate of acceleration. Officer Bonner ran back to his patrol car and gave chase. When the officer caught up to the Chevrolet, he was going 60 to 70 miles per hour. The Chevrolet made a right turn on to Wildwood Way and came to an abrupt stop on the side of the road.

Two men jumped out of the front of the car and began to run. The driver was shirtless and wearing a green baseball hat. The passenger was wearing a white tank top. Officer Bonner decided to pursue the driver. As he was driving by the Chevrolet, a passenger (later identified as Kristina Giachino) got out of the rear driver's side door. The officer slammed on the brakes and swerved right to avoid hitting her. But Giachino suddenly changed direction. The officer's vehicle struck Giachino and the Chevrolet before crashing into a tree. In the collision, the officer struck his head against the inside of the patrol car and briefly lost consciousness.

When the officer regained consciousness, he saw Giachino climbing over a nearby fence. He ordered her to sit down, and she complied.

Bonner heard voices from the other side of a nearby fence. When he looked through a hole, he saw the driver and front-seat passenger hopping another fence toward an apartment complex. However, he was unable to catch them.

Roseville Police Officer David Buelow responded to a call for help in searching for the suspects. Officer Buelow spotted defendant standing in an apartment complex. The officer turned a spotlight on defendant, who gestured at the officer with his middle finger before running. Defendant was quickly caught.

Defendant denied drinking or driving that night. A blood sample drawn from defendant at 4:37 a.m. indicated a blood-alcohol level of 0.16 percent. A search of the Chevrolet yielded defendant's checkbook and a liquor store receipt.

After the car chase but prior to his arrest, defendant used his cell phone to place three calls to his mother, Jamie Lewis. Lewis was the owner of the Chevrolet. Defendant asked his mother to report her car stolen. She called 911 to report the theft of her car.

Testifying under a grant of immunity, Lewis admitted that she falsely reported her car as stolen after her son called her in a panic.

The prosecution introduced certified records from the Department of Motor Vehicles to show that defendant's driver's license had been suspended at the time of the incident.

DISCUSSION

I. Jurisdiction to Substitute Lesser Included Offenses after the Trial Court Granted Defendant's Motion for Acquittal on the Greater Offenses

Defendant contends the trial court exceeded its jurisdiction by substituting lesser included offenses after granting defendant's motion for acquittal of felony DUI charges (Counts 1 and 2). We reject the argument.

A.

After the prosecution rested its case, defense counsel made a motion under Penal Code section 1118.1 for a judgment of acquittal as to all 10 counts. Outside the presence of the jury, the trial court heard argument from the prosecutor and defense counsel as to the sufficiency of the evidence pertaining to each count. As to counts 1 and 2, defense counsel argued that the evidence failed to show defendant caused the injuries to Giachino and Officer Bonner. The trial court agreed, stating:

"Looking at the facts, it's fairly clear from the evidence that if Ms. Giachino hadn't gotten out of the car, that the officer would have simply driven by the car, which leads me to the conclusion that the [defendant and front passenger's] stopping and leaving the doors open and jumping out did not cause the collision and resulting injury to the officer. [¶] . . . [¶] The court has to make a determination whether there is sufficient evidence on appeal for a jury to find that what the two men did by jumping out of the car and running was a substantial factor in causing the injury. In that regard the court comes to the conclusion that what Ms. Giachino did and the fact that the officer knew she was in there is really a superseding, intervening event, which breaks the chain of causation. Again, if she had stayed in the car, no collision with that tree, and I can't speculate whether he would have hit something at another time. [¶] Therefore, based on that, I do find that the element number four under [CALCRIM No.] 2100*fn3 DUI causing injury that the defendant's illegal act or failure to perform a legal duty caused bodily harm to another person has not been shown, and if the jury were to find that true it would not be cognizable [sic] on appeal. [¶] I am going to have to grant the motion to dismiss Counts One and Count Two [sic] on the insufficiency of the evidence. [¶] [Defense counsel], did you wish to continue?"

Defense counsel argued for dismissal of counts 3 to 10, but the court denied the motion as to the remaining counts. The prosecution then inquired about amendment of the information:

"[The prosecutor]: Your Honor, I had -- we had earlier discussed the possibility of the lesser included as to Counts One and Two, and I did submit those to the court, the jury instructions for those. Do I need to make a motion to amend at this point to add those or do you just want to substitute those lesser includeds in as Counts One and Two?

"THE COURT: Well, based on the ruling I will be instructing the jury they are no longer dealing with Counts One and Two, 23152(a) and (b),*fn4 and that instead they are dealing with two counts of what are known as lesser included offenses 23152(a) and (b), driving under the influence ...


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