APPEALS from a judgment of the Superior Court of Fresno County. Wayne R. Ellison, Judge. (Super. Ct. No. F07906388)
The opinion of the court was delivered by: Cornell, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
A jury convicted appellant Roger Isaac Guzman of violating Harbors and Navigation Code sections 655, subdivision (a), 655.2, and 656.2.*fn2 Guzman and Thomas Christopher Kirby*fn3 were the occupants of a motorboat driven by Guzman that struck and severely injured an 11-year-old boy on Shaver Lake in 2006. They did not stop to render assistance but instead continued on to the marina, where they later told deputies they had not been involved in the accident and claimed they had been on the pontoon boat that stopped and rendered assistance. Both Guzman and Kirby had been drinking alcoholic beverages the day of the accident.
Guzman contends his constitutional right against self-incrimination was violated prejudicially by the trial court's instruction to the jury on the section 656.2 offense, which stated he was required to identify himself to law enforcement officers as the operator of the motorboat that had struck the boy. Guzman argues the error requires reversal of his conviction.
Guzman also claims his constitutional rights were violated when the prosecutor misstated the law in closing argument in the trial by stating that Guzman's voluntary intoxication could not be considered in determining whether Guzman knew or should have known he had hit the child. Guzman contends the prosecutor's misstatement requires reversal.
We conclude section 656.2 is analogous to Vehicle Code section 20003. Harbors and Navigation Code section 656.2 does not make it a crime for an operator of a boat to be involved in a boating accident; the gravamen of the criminal offense arises when the operator fails to stop and render assistance or fails to identify himself as such to the victim and peace officers. We publish our discussion of this conclusion as there is no published decision concerning the issue.
We further conclude the prosecutor did not commit prejudicial misconduct. The trial court instructed the jury to consider voluntary intoxication in deciding whether Guzman had knowledge that he had been involved in a collision.
Guzman also appealed from the restitution order, but failed to brief this issue, so we will disregard any attack on the order.
We will affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
As the contentions made by Guzman are legal issues, we will leave out many facts, but nothing significant.
On September 2, 2006, Lynn and Jeff McEntire went to Shaver Lake with their two children and some family friends. The group traveled across the lake to a cove, arriving about 11:30 a.m. Jeff and the others took personal watercraft out onto the lake several times throughout the day.
Guzman, Kirby, and several friends, including the Peffer family, also were at Shaver Lake that day at a cove near the McEntires. About 4:25 p.m. Guzman and Kirby headed out from the cove in Guzman's white and yellow motorboat. Guzman was driving, or operating, the boat; he was wearing a red shirt. Kirby was not wearing a shirt, thus revealing a tattoo on his upper shoulder. There were no other yellow and white boats in the area when Guzman and Kirby headed out.
About 4:30 p.m., the victim was on a kneeboard and being pulled by a personal watercraft piloted by his father, Jeff. Jeff's passenger was acting as a spotter or flagman. The victim was tiring and Jeff began heading back into the cove. As he was heading back, Jeff saw a motorboat accelerating as it came out of the cove. The boat was travelling between 35 and 40 miles per hour. The boat then made a sharp turn and headed directly toward Jeff and the victim.
Jeff stood up, shouted, and waved his arms in an attempt to get the attention of the people on the motorboat. The motorboat continued on its path towards him and the victim, never decreasing speed. The motorboat hit the victim; he was not moving. Jeff jumped into the water to help his son and yelled for assistance. Jeff's friend, Ross Kelly, came over to assist.
Three women, Rocio Pena, Rocio Alvarez, and Kathy Arroyo, helped get the victim out of the water and into their small aluminum fishing boat. Kenneth and May Peffer, who were on a large pontoon boat, saw Pena and the women yelling and waving for help and went to the scene. The victim was transferred from the fishing boat to the pontoon boat.
Kenneth and May estimated the victim was 100 to 150 feet from shore when he was hit. Everyone assisting the victim was yelling to the people on shore to call 911. Kenneth noted it would have been nearly impossible for someone to be in the area and not notice the commotion at the site of the collision.
The victim was taken to Sierra Marina on the pontoon boat, with Jeff and another man rendering first aid. From there, the victim was transferred to an ambulance for transportation to Valley Children's Hospital.
Deputy Sheriffs William Heuer and Christopher Tullus were at the marina when the pontoon boat arrived. Jeff described for the deputies the motorboat that had hit his son. The motorboat was white on the bottom, with a yellow stripe on both sides, and had a wakeboard tower with yellow speakers attached to the tower. Jeff saw two people on the motorboat. The operator had long dark hair and was wearing a red shirt, and the passenger had a circular tattoo on his right shoulder. Both Jeff and Kelly identified Guzman's boat in a later photographic lineup as the boat that hit the victim.
According to Alvarez, who had been on the aluminum fishing boat, the collision when the victim was hit produced an audible sound that could be heard clearly. The collision caused the motorboat to fishtail. The motorboat continued on for a short way, then stopped. The passenger went to the back of the motorboat and lifted the motor. The operator of the motorboat also came back to look. The passenger and operator talked to each other while Pena, Alvarez, and Jeff were screaming at them to help the child. Pena watched as the two men looked at where the child was in the water and then went to the front of the boat and headed for Sierra Marina.
Heuer and Tullus went out in their marked patrol boat to look for the motorboat that had hit the victim. As the deputies were leaving the marina, Heuer saw a boat in a slip matching the description. As Heuer was checking the CF number (vessel registration number) of the motorboat, Guzman and Kirby approached him and spontaneously stated that the boat looked like the one that hit the boy, but that their boat had not hit the boy. They told the deputies they had been part of the group on the pontoon boat that had helped the child after the collision. The two men provided Heuer with their names, dates of birth, and telephone numbers.
When the victim arrived at the hospital, he was bleeding and had brain matter coming out of his forehead in the area between his eyes. He sustained fractures to the back of his head, from his forehead to the bridge of his nose, across his nose, and internal fractures to his skull. As a result of being hit by the motorboat, the victim suffered a brain injury and lost vision in one eye. Dr. Peter Witt opined that the injuries were consistent with being struck by a propeller.
On September 17, 2006, Guzman's boat was seized. The propeller was examined by Harold Kindsvater, who had extensive experience manufacturing and repairing propellers. The propeller attached to the motorboat had a bend in one blade; it would have taken a tremendous amount of force to cause the bend. The damage could not have come from hitting a rock or wood because there was no damage to the paint surface. Kindsvater stated the shaft of the propeller also had a bend in it. Based on the bend in the propeller blade and the bend in the shaft, Kindsvater opined that a person inside the boat would have felt a jolt when the damage occurred.
Guzman was interviewed by sheriff's detectives on September 17, 2006. Guzman stated he was the only person who had driven his yellow and white boat that weekend. He admitted owning a red shirt and keeping it in the boat, but claimed he did not wear the shirt on September 2. He acknowledged drinking about six beers that day. Guzman claimed the pontoon boat left the cove before he did. Guzman stated that even when the bow of the boat is up, he can see in front of the boat. He stated it would not be possible for him to have hit someone and not know it. He denied hitting anyone with the boat that day.
Guzman was charged with violating sections 655, subdivision (a), using a boat in a reckless or negligent manner so as to endanger the life, limb, or property of another person, and 655.2, excessive speed by a boat in specified restricted areas. He also was charged with violating section 656.2, which requires the operator of a boat to stop and render assistance and provide identifying information when there has been an accident causing injury. A jury found Guzman guilty of violating sections 655, subdivision (a) and 655.2, but was unable to reach a verdict on the section 656.2 violation.
A second jury trial on the section 656.2 charge commenced February 23, 2009, and on March 26 the jury found Guzman guilty. On April 24, the trial court sentenced Guzman to a term of two years in state prison for violating section 656.2. Guzman received a concurrent term of 365 days for the section 655, subdivision (a) and section 655.2 convictions. At the October 15, 2009, ...