APPEAL from a judgment of the Superior Court of Kern County. Jerold L. Turner, Judge. (Super. Ct. No. BF125510A)
The opinion of the court was delivered by: Wiseman, Acting P.J.
CERTIFIED FOR PUBLICATION
Defendant Andrew Mace was convicted of violating Vehicle Code section 20001 for leaving the scene of a one-vehicle accident without assisting a person injured in the accident. On appeal, Mace raises various instructional errors. We hold that a driver's knowledge that a person involved in an accident is injured gives rise to a duty to ascertain what assistance the injured person may need. We also hold that any person who is considered a "driver" for purposes of the hit-and-run statutes has a duty to render assistance to other persons in the same vehicle who are injured in the accident, including the actual driver of the vehicle. We reject Mace's remaining arguments and affirm the judgment.
FACTUAL AND PROCEDURAL HISTORIES
On October 26, 2008, at approximately 3:11 a.m., Kern County firefighters, including Andrew Duitsman, responded to an accident reported in a residential area known as the Powers tract in the community of Weldon, near Lake Isabella. A pickup truck was on the right-hand shoulder of Powers Lane with the front end up against a power pole. The power pole was sheared off at the base, and power had gone out in Weldon at 1:47 a.m. Pauline Mace, the defendant's sister, was in the truck, on the passenger's side. Pauline did not have any visible injuries but indicated that she had pain in her left leg. Duitsman asked Pauline if she was the driver or passenger to determine whether there were other injured persons they might need to look for, and she responded that she was a passenger. Pauline was taken to the hospital and was diagnosed with a left hip dislocation. She also showed signs of hypothermia--her temperature was reported in the 95-degree range. A doctor who saw Pauline later that morning observed bruising around her left eye and on her chin.
California Highway Patrol Officer Jason Kremsdorf interviewed Pauline at the hospital at approximately 5:00 a.m. Pauline said that she had been drinking with her brother, Mace, at the Kampgrounds of America (KOA) bar right before the accident. She told Kremsdorf that Mace was driving. Kremsdorf believed Pauline had been drinking based on her slurred speech and bloodshot, watery eyes.
Kremsdorf found Mace at Pauline's daughter's house on Roberts Lane, about a 10th of a mile from the accident. Mace was sleeping on a couch. Kremsdorf asked Mace to come outside and asked him about the accident. Mace said he did not know anything about it. He said he had been drinking on Rancheria Road and did not know how he got home. Kremsdorf asked if he had any keys on him, and Mace responded that he had the keys to his truck.
Kremsdorf administered two breath tests with a preliminary alcohol screening device, and Mace's blood-alcohol concentration was measured at .168 and .171 percent, roughly double the legal limit. Mace was arrested and taken to the hospital. A blood sample was taken from Mace at 6:49 a.m. and analyzed to have a blood-alcohol concentration of .17 percent. At the hospital, Kremsdorf told Mace he believed Mace was the driver of a vehicle involved in an injury traffic collision and he had been under the influence of an alcoholic beverage and had fled the scene. Mace told Kremsdorf that he was not driving. Asked who was driving, Mace responded, "'I don't know. It was somebody else.'" Mace denied memory of the collision and said no one had permission to drive his truck. Kremsdorf did not notice any injuries on Mace.
On December 10, 2008, an information was filed charging Mace with three counts: (1) driving under the influence of alcohol or drugs and causing bodily injury to a person other than the driver (Veh. Code,*fn1 § 23153, subd. (a)); (2) driving with a blood-alcohol content of .08 percent or more and causing bodily injury to a person other than the driver (id., subd. (b)); and (3) failing to render assistance to an injured person or otherwise perform duties required under sections 20003 and 20004 (§ 20001, subd. (a)). On counts 1 and 2, it was alleged that Mace had two prior convictions for driving under the influence within 10 years (§ 23566) and, for all counts, it was alleged that he personally inflicted great bodily injury causing the offense to be a serious felony (Pen. Code, §§ 12022.7, 1192.7(c)(8)).
Jury trial began on February 23, 2010. Pauline testified that, on October 25, 2008, she spent the day with Mace. In the morning, he picked her up in his truck and they went to a funeral. After the funeral, they went to a house and Pauline began drinking, but she did not see Mace drinking. Later, they went to a KOA bar with their sister Yvonne. Pauline drank beer, but she did not see Mace drinking alcohol. He drank coffee at the bar.
Pauline did not remember leaving the KOA bar and did not recall anything until she woke up after the accident. She attributed her lack of memory to her alcohol consumption. Pauline remembered a paramedic waking her up and asking her if she knew she had been in an accident. Her body was on the floor and her face was on the seat of the truck. She was in pain and her left leg or hip was dislocated. Pauline testified that a paramedic asked if her brother was driving and she said "'Um, maybe,'" and the paramedic asked if she was driving and she said, "'Yeah, maybe.'" Mace was not present at that point. Pauline was taken by ambulance to a hospital. At trial, Pauline did not remember having spoken to Officer Kremsdorf in the hospital. She did not remember talking to a doctor in the hospital. Pauline testified that, a few days after the accident, she said to her sister Sherry, "Could I have been driving?"
Mace testified on his own behalf. On October 25, 2008, he picked up Pauline and drove to a funeral. After the funeral, Mace drove them to a house where Pauline drank alcohol and Mace drank water and soda. Then he drove with Pauline to the KOA, a local hangout. Mace and Pauline were there for three or four hours, and during this time, he drank three-quarters or less of a beer. He saw Pauline drink five or six beers. Around 11:00 p.m., Mace and Pauline left the KOA bar and drove by Pauline's daughter's house to see what was going on.
Mace asked Pauline if she wanted to go "up on the hill" where some friends and relatives of Mace live. The hill is about a 10-minute drive from Powers Lane. Mace drove to the hill with Pauline and told her that they would be staying there because he was going to be drinking. After they parked, Pauline told Mace she would be out in a minute and he left her in the truck with the keys in the ignition. He drank beer and mixed drinks with his friends. At some point, "everyone started ... going to sleep," and Mace's friend offered a trailer to sleep in, but Mace went to sleep in his truck with his sister. Pauline never left the truck to join Mace on the hill. Mace got in his truck on the passenger side. Pauline was asleep, lying in the middle of the bench seat, and Mace scooted her toward the driver's side. The truck had a bench seat and no console in the middle, so a person could slide from one side to the other. Mace went to sleep.
His next memory was waking up in his truck. Mace did not know how his truck came to rest against the power pole on Powers Lane. He was "pretty buzzed." His knees were on the floorboard and his head and chest were on the seat. He saw Pauline passed out behind the wheel, and he got out of the truck. He took the key out of the ignition because he did not want Pauline going anywhere. Mace testified that he did not realize anything was wrong and walked home, a distance of about two blocks. He told the jury, "I didn't consider anything, but--I seen her, thought she was passed out, and that was it." Mace's next memory was waking up on the couch to a couple police officers.
Mace testified that Pauline had driven his truck in the past and that she had permission to drive his truck "[a]round the tract," meaning around Powers Lane. Pauline testified that she had driven Mace's truck once prior to the accident. She drove the truck in the area around where she lived.
On March 1, 2010, the jury found Mace guilty of count 3 and found the great-bodily-injury enhancement to be true. The jury was unable to reach a verdict in counts 1 and 2, and the court declared a mistrial on those counts. Mace was sentenced to the middle term of two years in prison for count 3. The enhancement for great bodily injury was stayed pursuant to Penal Code section 654.
Mace was convicted of violating section 20001. "Although a violation of section 20001 is popularly denominated 'hit-and-run,' the act made criminal thereunder is not the 'hitting' but the 'running.'" (People v. Corners (1985) 176 Cal.App.3d 139, 148.) Section 20001, subdivision (a), provides: "The driver of a vehicle involved in an accident resulting in injury to a person, other than himself or herself, or in the death of a person shall immediately stop the vehicle at the scene of the accident and shall fulfill the requirements of Sections 20003 and 20004."
Section 20003, subdivision (a), in turn, requires "[t]he driver of any vehicle involved in an accident resulting in injury to or death of any person," among other things, to "render to any person injured in the accident reasonable assistance, including transporting, or making arrangements for transporting, any injured person to a physician, surgeon, or hospital for medical or surgical treatment if it is apparent that treatment is necessary or if that transportation is requested by any injured person."
"Section 20001 has long been deemed to impose a knowledge requirement which requires proof the accused knew or was aware that (1) he or she was involved in an accident and (2) the accident resulted in injury to another." (People v. Harbert (2009) 170 Cal.App.4th 42, 45.) Knowledge of injury to another may be constructive. (People v. Holford (1965) 63 Cal.2d 74, 80 ["criminal liability attaches to a driver who knowingly leaves the scene of an accident if he actually knew of the injury or if he knew that the accident was of such a nature that one would reasonably anticipate that it resulted in injury to a person"].) Likewise, knowledge that one has been involved in an accident may be constructive. (People v. Harbert, supra, at pp. 52-53 ...