People v. Wren

271 Cal. App. 2d 788, 76 Cal. Rptr. 673, 1969 Cal. App. LEXIS 2440

• Court: California Court of Appeal
• Decided: April 14, 1969
• Docket: Crim. 4947
• Status: Published

Opinions

REGAN, J.

Defendant was found guilty by a jury of a violation of section 23101 of the Vehicle Code (felony drunk driving) and of a violation of section 23123 of the Vehicle Code (keeping open container with alcoholic beverage in vehicle on a highway). He appeals from the judgment of conviction.

Defendant, while driving his Mercury automobile upon a public highway, veered across the center line and collided with a Falcon automobile driven by Lieutenant Colonel James Willett causing injuries to be suffered by Colonel Willett and his wife, who was a passenger in the Willett automobile. The evidence at the trial established that defendant was intoxicated ; his speech was incoherent and unintelligible, and a blood sample taken from defendant showed a .23 percent alcohol content. A partially filled bottle containing bourbon whiskey was lying on the right front floor board of defendant’s auto with the bottle cap off. Defendant admitted two prior felony convictions.

Defendant contends the punishment and sentence imposed violates section 654 of the Penal Code, which section provides in pertinent part as follows: “An act or omission which is made punishable in different ways by different provisions of this Code may be punished under either of such provisions, but in no ease can it be punished under more than one . . . .”

Defendant contends that he is being improperly punished for two offenses (i.e., drunken driving with bodily injury and possession of an open bottle of liquor in a car) that arose from his driving a motor vehicle upon a public road. Defendant argues that he was charged with multiple offenses arising from a single “act.” The act consisted of driving a motor vehicle upon a public road, and all of the offenses of which he was charged stemmed from and were caused by the single act.¹

In In re Hayes, filed March 17, 1969, 70 Cal.2d 604 [75 Cal.Rptr. 790, 451 P.2d 430], the Supreme Court found that the imposition of sentences for violations of Vehicle Code section 14601 (driving a motor vehicle with knowledge of a suspended license) and Vehicle Code section 23102 (driving while under the influence of intoxicating liquor), arising from a single act of driving, did not violate the proscription against multiple punishment contained in section 654. The court notes (at p. 607) : “We cannot overlook the crucial element: section 654 refers not to any physical act or omission which might perchance be common to all of a defendant’s violations, but to a defendant’s criminal acts or omissions. (See, e.g., In re Johnson (1966) 65 Cal.2d 393, 395 [54 Cal. Rptr. 873, 420 P.2d 393]; People v. Quinn (1964) 61 Cal.2d 551, 555 [39 Cal.Rptr. 393, 393 P.2d 705]; People v. Brown (1958) supra, 49 Cal.2d 577, 590 [320 P.2d 5]; People v. Branch, supra, 119 Cal.App.2d at p. 496 [260 P.2d 27].) Indeed, section 654 itself makes this distinction evident, since it refers to any act or omission ‘made punishable’ by different statutes. The netural act of driving, like the mere act of possessing in the foregoing cases, when viewed in a vacuum, is not ‘made punishable’ by any statute.

“The proper approach, therefore, is to isolate the various criminal acts involved, and then to examine only those acts for identity. In the instant case the two criminal acts are (1) driving with a suspended license and (2) driving while intoxicated ; they are in no sense identical or equivalent. Petitioner is not being punished twice—because he cannot be punished at all—for the ¹ act of driving. ’ He is being penalized once for his act of driving with an invalid license and one for his independent act of driving while intoxicated. ’ ’

The court concluded with the following (at p. 611):

“In summation, then, section 654 of the Penal Code proscribes multiple punishment for a single ‘act or omission which is made punishable’ by different statutes, i.e., a single criminal act or omission. Since the mere act of driving is made punishable by no statute, it is not the type of act or omission referred to in section 654. The acts ‘made punishable’ which this petitioner committed were (1) driving with a suspended license and (2) driving while intoxicated, two separate and distinct criminal acts; that they were committed simultaneously and that they share in common the neutral noncriminal act of driving does not render petitioner’s punishment for both crimes in conflict with Penal Code section 654.”

In the case before us the acts made punishable which defendant committed, i.e., felony drunk driving and driving with an open container of alcoholic beverage, are two separate and distinct criminal acts. Defendant’s punishment for both crimes does not conflict with Penal Code section 654.

Defendant next contends that the nonconsensual withdrawal of a blood sample from his person deprived him of certain statutory rights, and also of his constitutional rights and, accordingly, the results of the blood-alcohol test should not have been received in evidence. The blood sample was taken from defendant by Dr. Carl Romans at the Placer County Hospital. Dr. Romans stated that defendant was fully conscious and in possession of his mental faculties at the time of the blood-alcohol test and that defendant did not object to the removal of the blood sample from his arm. Defendant testified the taking of the blood sample was over his objection. He argues that when he objected, section 13353 of the Vehicle Code creating a statutory penalty for refusal to submit to the blood sample came into play and he agreed to accept this penalty (suspension of his driver’s license) and thus he could not be subjected to the blood test. Consequently, its admission into evidence was error.

Assuming that defendant did object as he so testified, no force or violence was used. The doctor, on voir dire, stated that defendant did not object to the test, which was administered in a medically acceptable manner. Thus, an attempt to interject a Rochin-type situation must fail. (See Schmerber v. State of California (1966) 384 U.S. 757 [16 L.Ed.2d 908, 86 S.Ct. 1826]; Breithaupt v. Abram (1957) 352 U.S. 432 [1 L.Ed.2d 448, 77 S.Ct. 408]; People v. Sudduth (1966) 65 Cal.2d 543 [55 Cal.Rptr. 393, 421 P.2d 401].)

This court considered an almost identical situation in People v. Fite (1968) 267 Cal.App.2d 685 [73 Cal.Rptr. 666]. In Fite the defendant contended that the legislative intent behind section 13353 precluded the taking and introduction of a chemical test taken over an arrestee’s objections. The court rejected this argument and held (at p. 690) that: “section 13353 complements rather than supersedes section 23101, and that the enactment of the implied consent law in no way affected the admissibility of blood alcohol tests under established case law.” (See also, People v. Hanggi (1968) 265 Cal.App.2d Supp. 969 [70 Cal.Rptr. 540].) And on page 691 this court states: “Nowhere do we find any legislative indication that by the enactment of the implied consent law, the Legislature thereby intended to preclude the taking of blood samples as an incident to a lawful arrest over a person’s refusal in the absence of force or violence. ’ ’

Finally defendant contends the trial court’s instructions were erroneous. In order to prove felony drunk driving in violation of section 23101, the state has the burden of establishing beyond a reasonable doubt the following elements:

(1) That the defendant drove a vehicle on a public highway;

(2) That he was under the influence of intoxicating liquor;

(3) That he did some act forbidden by law or neglected a duty imposed by law in driving the vehicle; and

(4) That such act or neglect proximately caused bodily injury to a person other than himself.

As to element (3), the People here relied upon section 21650 of the Vehicle Code, which, in general, provides that on all highways a vehicle shall be driven upon the right half of the roadway. Defendant contends that prejudicial error was committed by giving an ambiguous instruction on the doctrine of “imminent peril” as it relates to the third element. The basis of defendant’s argument is that the failure to properly instruct on the doctrine constituted a failure to instruct on an essential element of his defense. (See People v. Clark (1962) 202 Cal.App.2d 513 [20 Cal.Rptr. 803]; see also, Jolley v. Clemens (1938) 28 Cal.App.2d 55, 67-68 [82 P.2d 51].) Defendant is relying upon his own testimony that Mrs. Willett was driving, that she backed the ear out across the road, and that the car then pulled into the road, traveling in the opposite direction from defendant. In order to avoid the accident the defendant cut the wheel to the left and hit the brakes.

In Clark, supra, the court notes (at p. 517) that a defendant is entitled to instructions on his theory of the ease as disclosed by the evidence, no matter how weak or incredible such evidence may be.

Here, however, the record discloses no attempt by counsel to have the jury instructed on “imminent peril.” It is the duty of the trial court to instruct on the general principles of law which are necessary for the jury’s understanding of the ease, whether such instructions are requested or not. In the absence of a request, however, he need not instruct on specific points or special theories that may fit the facts of the case. (People v. Sutton (1964) 231 Cal.App.2d 511, 515-516 [41 Cal.Rptr. 912]; People v. Bowens (1964) 229 Cal. App.2d 590, 594-595 [40 Cal.Rptr. 435]; People v. Jones (1964) 225 Cal.App.2d 434, 437-438 [37 Cal.Rptr. 406].) By his failure to request additional instructions or any clarification thereof, he waived his right to complain of any such omission on appeal. (People v. Partin (1967) 254 Cal. App.2d 89, 98 [62 Cal.Rptr. 59]; People v. Robinson (1960) 180 Cal.App.2d 745, 752 [4 Cal.Rptr. 679].)

Furthermore, the instruction given by the court adequately covers defendant’s theory of the accident. The jury did not believe defendant’s testimony and properly so in view of defendant's condition, the physical evidence left by the Willetts’ ear, and the fact that defendant was impeached by his admission of two prior felonies. Thus, even assuming that a specific instruction should have been given on imminent peril, the evidence of guilt is overwhelming, and therefore such an alleged error would not have been prejudicial to defendant. (See People v. Watson (1956) 46 Cal.2d 818 [299 P.2d 243].)

The judgment is affirmed.

Bray, J.,

* concurred.

1 Defendant cites in support of Ms claim of error the holding in In re Hayes (1968) (Cal.) 69 Cal.Rptr. 310, 442 P.2d 366, wherein the court construed section 654, Penal Code. However, a rehearing was granted and the court, on March 17, 1969, issued a new and changed opinion.

Retired Presiding Justice of the Court of Appeal sitting under assignment by the Chairman of the Judicial Council.