(Super. Ct. No. 09F01898)
The opinion of the court was delivered by: Blease , Acting P. J.
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Angel Cervantes drove a vehicle while drunk in the parking lot of a nightclub and caused physical injury to four people, two seriously. A jury convicted him of driving under the influence and proximately causing bodily injury and driving with a blood alcohol content of 0.08 percent or more and proximately causing bodily injury. The jury found that he personally inflicted great bodily injury upon two separate victims and proximately caused bodily injury to more than one victim. The jury also found that defendant willfully refused to submit to and complete chemical testing and drove with an alcohol content of 0.15 percent or greater. The jury acquitted defendant of three counts of assault by means of force likely to produce great bodily injury.
Sentenced to state prison for an aggregate term of eight years and four months, defendant appeals. He contends that the trial court abused its discretion in denying probation. We will affirm the judgment.
On March 6, 2009, Luis Andrade, Sr., (Sr.) and Luis Andrade, Jr., (Jr.) went to a restaurant and nightclub to celebrate their respective birthdays.*fn1 At the club, they met several friends. One of their friends noticed defendant sitting at a "reserved" table with four or five other people. The table had five buckets with six beers in each. Defendant looked drunk, his eyes were red, and he seemed to be dizzy.
When the club closed at 1:30 a.m., Jr. and Sr. went out the front door to find security guards breaking up a fight between two women, one of whom the Andrades had met. Jr. walked two other women to a car which was located behind the club. The car belonged to one of the women fighters who was escorted by security to the car. Sr. watched as Jr. said his goodbyes to the women.
A Lincoln Navigator, driven by defendant, pulled up next to Jr. Defendant told the woman fighter that "she should have gotten her ass kicked." Someone saw a beer bottle tossed from the back seat of the Navigator. According to another witness, defendant insulted the two women Jr. had escorted to the car. Yet another witness believed that defendant's front seat passenger, his cousin Jimmy Cervantes, had taunted the crowd. People in the crowd yelled things back to the people in the Navigator. Several people in the crowd attacked the Navigator, hitting and kicking it and someone said that Jr. punched defendant.
Defendant took off, spinning the tires on the Navigator, and hit Jr.'s leg which got caught in the rear tire. Jr. was knocked to the ground, unconscious. Sr. ran to Jr. who was face down and tried to pick him up but was unable to do so. People tried to stop defendant, hitting the Navigator with their hands, and to pull the people out of the car but the windows had been raised.
Defendant drove the Navigator at a fast pace in reverse. Sr. moved Jr.'s head but could not get out of the way himself. Defendant hit Sr. with the rear bumper in his pelvic area, knocking him to the ground. The bumper also hit two security guards, Nicholas Napier and Robert Wimberly. Sr. could not get up.
Defendant turned the Navigator around and drove forward towards Sr., striking him. Sr. lost consciousness. Defendant also ran over Jr.'s hand and "burned rubber" on Jr.'s left foot. Jonathan Morris, a security guard, fired his weapon. He emptied his firearm, reloaded and fired again, shooting between 9 and 11 rounds. Someone heard a loud blow, possibly a gunshot, before the Navigator hit Jr. Wimberly claimed Morris fired during the melee. Two others said shots were fired after the Navigator hit Jr. and Sr. and was leaving the parking lot.
Seven minutes after the club closed and the parking lot chaos, defendant pulled his Navigator into oncoming traffic, requiring a medic vehicle to stop. The medic vehicle had been driving "code three," meaning full lights and sirens, to the nightclub. Defendant frantically told the paramedic that his friend had been shot and needed to go to the hospital. The backseat passenger, Evan Rocha, had a graze wound on his wrist and the paramedic did not believe the injury was life-threatening but defendant insisted they take Rocha to the hospital. The paramedics called for another unit and the police.
Defendant was detained. Officers noticed the strong odor of alcohol on defendant. Defendant's eyes were red and watery. Defendant refused to complete the field sobriety tests and refused to breathe into a preliminary alcohol screening (PAS) device. An officer took defendant in for a forced blood draw at 3:25 a.m. when defendant continued to refuse to submit to other tests. His blood sample contained a blood alcohol content of 0.19 percent and at the time of driving, it was estimated to be 0.23 percent.
Sr. suffered a lacerated liver, bruising or bleeding in part of his intestine, a very severe pelvic fracture (potentially life threatening), an open left foot fracture, a broken arm, a dislocated shoulder, a fractured sternum, multiple rib fractures, a concussion, a collapsed lung (potentially life threatening), a broken leg, and fractures in his lower back. He had nine surgeries and was hospitalized for 19 days. He has screws in his foot and pelvis and a plate in his hand. He can no longer work and walks with a cane.
Jr. suffered a fractured arm; a pulmonary embolism; a closed fracture of the clavicle; tissue graft complications; a fractured rib; complicated open wounds on the knee, leg, and ankle; a broken foot; friction burns on his hip and leg; and a blood clot in his legs. He had four surgeries and was hospitalized for almost a month. He ...