APPEAL from the Superior Court of Riverside County. Patrick F. Magers, Judge. Affirmed with directions. (Super.Ct.No. SWF025230)
The opinion of the court was delivered by: King, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Defendant Israel Poncio Poroj was driving eastbound on the Ramona Expressway in a Ford F-150 truck when he swerved into oncoming traffic and collided head-on with a small pickup truck occupied by Salvador Gonzaga and his wife, Maria Gonzaga. Defendant admitted he had been drinking several hours before the collision. Salvador Gonzaga was killed in the collision. Maria Gonzaga suffered soft tissue injuries and was hospitalized for 36 hours.
A jury found defendant guilty as charged of second degree murder for the death of Mr. Gonzaga (Pen. Code, § 187, subd. (a), count 1),*fn2 driving under the influence of alcohol and causing bodily injury (§ 23153, subd. (a), count 2), and driving with a blood alcohol level greater than .08 percent and causing injury (§ 23153, subd. (b), count 3). The jury also found defendant personally inflicted great bodily injury (GBI) on Mrs. Gonzaga in counts 2 and 3. (§ 12022.7, subd. (a).)
The principal issue on this appeal is whether the jury was properly instructed on the GBI enhancement allegations in counts 2 and 3. Section 12022.7, subdivision (a) provides: "Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment . . . ." Defendant claims "the GBI enhancement has its own intent requirement, independent of the intent required for the underlying felony, and the jury must be instructed on that intent element."
In the published portion of this opinion, we explain that section 12022.7, subdivision (a) does not require a showing of intent to inflict GBI, separate or apart from the intent required to commit the felony or attempted felony for which the enhancement provision prescribes additional punishment. Rather, the statute only requires a showing that defendant "personally inflict[ed]" great bodily injury "in the commission of a felony or attempted felony . . . ." (§ 12022.7, subd. (a).) Thus, the only intent required to support a GBI enhancement under section 12022.7, subdivision (a) is the intent required to commit the underlying felony or attempted felony.
On March 6, 2008, at approximately 11:50 p.m., defendant was driving eastbound on the Ramona Expressway near Birch Street in a Ford F-150 truck when he swerved into oncoming traffic and collided head-on with a small pickup truck. Mr. Gonzaga was driving the pickup truck and his wife, 67-year-old Mrs. Gonzaga, was in the passenger seat. Mr. Gonzaga was killed in the collision. He suffered blunt impact injuries to his torso, including tears in the left oracle of his heart. Mrs. Gonzaga was knocked unconscious and taken to a hospital.
The trauma surgeon who examined Mrs. Gonzaga at the hospital testified she had "soft tissue injuries in the neck, chest, abdomen, and left shoulder," but no internal injuries or fractures. CT scans of the left shoulder were "unremarkable" and x-rays showed "an old fracture of the clavicle." A preliminary CT scan was also "unremarkable," though the treating physician testified it was "possible for there still to be problems that manifest themselves later as a result of the impact[.]" Mrs. Gonzaga was discharged after 36 hours with the "understanding that there were no serious injuries requiring continued treatment . . . ."
At trial in February 2009, Maria Gonzaga claimed she was still suffering from the effects of her injuries. She had trouble maintaining her balance while walking, trouble urinating, and trouble with her ears. Her head also hurt from time to time and her left shoulder still hurt and had not "healed up." She claimed a bone in her shoulder had "popped out" during the collision.
Linda Belikoff was driving westbound on the Romona Expressway at the time of the collision, behind Mr. and Mrs. Gonzaga's truck. Belikoff saw an eastbound vehicle, a "larger truck" or "F-150," hit Mr. and Mrs. Gonzaga's "little pickup truck" "head-on." Immediately after the collision, Belikoff approached defendant's truck and found him trapped inside. Defendant's leg was stuck and he kept repeating, "Get me out. Get me out." Belikoff was unable to open the door of defendant's truck but told him she had called 911 and help was on the way. Belikoff noticed that defendant's speech was slurred and she could smell alcohol emanating from him.
California Highway Patrol Officer Stephen Whelan arrived at the scene of the collision shortly after paramedics and other law enforcement officers arrived. Defendant was on a gurney with a "substantial injury to his lower left leg," after being extracted from his truck by fire department personnel. Officer Whelan had a brief conversation with defendant while he was lying on the gurney. Officer Whelan noticed an "incredibly strong odor of alcohol" on defendant's breath, his speech was slurred, and his eyes were red and watery. Officer Whelan initiated a driving under the influence (DUI) investigation.
At 12:30 a.m., Officer Whelan administered a "preliminary alcohol screening test" on defendant using an "Alcohol Sensor IV" machine, which is designed to take a blood alcohol reading from a person's breath sample. Defendant consented to the test, but did not blow into the machine with sufficient force for it to make an "automatic capture," so Officer Whelan captured the breath sample manually. This test showed defendant had a blood alcohol level of .206 percent. About two minutes later, Officer Whelan asked defendant to take the test a second time in order to have two test results to compare, but defendant began "shaking his head no and waving his hand like he didn't want to take the test." Officer Whelan interpreted defendant's gestures to mean he was withdrawing his consent to take the test.
Based on the initial breath test result and his observations of defendant, Officer Whelan concluded defendant was under the influence of alcohol. A sample of defendant's blood was taken at the hospital at 2:32 a.m. on March 7, about two hours and forty-two minutes after the collision. The blood sample showed a blood alcohol level of .22 percent. A criminalist testified that, allowing for a normal "burn off rate," defendant's blood alcohol level would have been .26 percent at the time of the collision.
Measurements and other evidence taken at the scene of the collision showed that defendant's vehicle crossed into opposing lanes and caused the crash. Based on the physical evidence and his interviews of Belikoff and other witnesses, Officer Whelan concluded the collision was caused by defendant's failure to stay on the right side of the roadway in violation of Vehicle Code section 21650, and defendant's "unsafe turning movement" in violation of Vehicle Code section 22107.
Officer Whelan interviewed defendant at the hospital at approximately 3:48 a.m. on March 7 with the assistance of Riverside County Sheriff's Deputy Roberto Navarrete, a Spanish language interpreter. After waiving his Miranda*fn3 rights, defendant told the officers he had been in Riverside painting a house, left around 8:00 p.m., and was on his way home to San Jacinto at the time of the collision. He drank three beers between the hours of 5:00 and 5:30 p.m., he had not been taking any drugs or medications, he did not have diabetes or epilepsy, and he was not under the care of a physician. He believed the collision was caused by the Gonzagas' pickup truck coming into his lane ...