In re F.H., A127491.

• Decision Date: 25 February 2011
• Docket Number: No. A127491.,A127491.
• Citation: 192 Cal.App.4th 1465,2011 Daily Journal D.A.R. 30,11 Cal. Daily Op. Serv. 2648,122 Cal.Rptr.3d 43
• Court: California Court of Appeals Court of Appeals
• Parties: In re F.H., a Person Coming Under the Juvenile Court Law. The People, Plaintiff and Respondent, v. F.H., Defendant and Appellant.

192 Cal.App.4th 1465

122 Cal.Rptr.3d 43

11 Cal. Daily Op. Serv. 2648

2011 Daily Journal D.A.R. 3088

In re F.H., a Person Coming Under the Juvenile Court Law.

The People, Plaintiff and Respondent,

v.F.H., Defendant and Appellant.

No. A127491.

Court of Appeal, First District, Division 1, California.

Feb. 25, 2011.

**44 Olga Kelley, Oakland, for Defendant and Appellant under appointment by the Court of Appeal.

Edmund G. Brown, Jr. and Kamala D. Harris, Attorneys General Dane R. Gillette, Chief Assistant Attorney General Gerald A. Engler, Senior Assistant Attorney General Laurence K. Sullivan and Martin S. Kaye, Deputy Attorneys General for Plaintiff and Respondent.

MARCHIANO, P.J.

*1467 While intoxicated and riding in the front passenger seat of a car, defendant F.H. grabbed the steering wheel and caused the car to crash. The driver was injured. The juvenile court found she had committed two misdemeanors, driving while under the influence causing injury (Veh.Code, § 23153, subd. (a)) and driving with a blood alcohol level of .08 percent or more causing bodily injury (Veh.Code, § 23153, subd. (b)). Defendant contends there was insufficient evidence to support the convictions, primarily because she was not "driving" the car in the legal sense of the word. We disagree and affirm.

I. FACTS

On July 12, 2009, at approximately 3:00 a.m., Santa Rosa Police Officer Bryan Ellis **45 was driving north on Fulton Road when he was flagged down by an adult male who stepped into the roadway. The man, Ricardo Mendoza, appeared "discombobulated." His hair stood straight up, dust covered his face, and his eyes were wide open. Officer Ellis concluded that Mendoza was in shock.

Mendoza told the officer he had been in a car accident and there was someone else still in the car. Officer Ellis put Mendoza in his patrol car, and Mendoza directed him to the accident scene several miles away, on Hall Road. When they arrived, Officer Ellis saw a car, which appeared to have rolled over several times, upside down in a ditch. Defendant was lying in the ditch about 20 yards from the car. She had urinated on herself, had scratches, and was covered in dirt. She told Officer Ellis her legs and back hurt.

California Highway Patrol Officer Robert Oates and his partner arrived and took over the investigation.¹ While he was being treated for his injuries by an ambulance crew, Mendoza told Oates that he had been driving on Hall Road at 30 to 40 miles per hour. He and defendant had been arguing. Defendant grabbed the wheel and yanked it, causing him to lose control and crash. As Mendoza described the accident to Officer Oates, defendant was placed in the ambulance. She said, "I did [it]. It was my fault."

Officer Oates spoke to defendant at the hospital. Her eyes were red and watery, her speech was slurred, and she smelled of alcohol. Defendant *1468 admitted she was in the front passenger seat arguing with Mendoza, who was her boyfriend, when she angrily grabbed the steering wheel and turned it, causing the car to go out of control and crash.

Defendant admitted to Officer Oates that she drank five shots of alcohol—presumably hard alcohol—and some beer. She also admitted having smoked "a little bit of marijuana earlier." She exhibited horizontal gaze nystagmus. A preliminary test showed her blood alcohol level was over .08 percent. Defendant's blood was drawn at 6:16 a.m. A blood test showed a blood alcohol level of .10 percent.

Officer Oates concluded that by grabbing the steering wheel defendant in effect drove the car, thus interfering with the driver, Mendoza, and caused the accident by making an unsafe turning maneuver.

Mendoza told Officer Oates at the hospital that he felt pain in his shoulder and left side. Defendant suffered a broken leg and spinal injuries.

Defendant testified. She admitted drinking before she got into Mendoza's car. She remembered arguing with Mendoza. She did not remember touching the steering wheel, and believed she had "blocked some elements of" the accident.

The juvenile court found that defendant had committed two misdemeanors: driving while under the influence causing bodily injury (Veh.Code, § 23153, subd. (a)); and driving with a blood alcohol level of .08 percent or more causing bodily injury (Veh.Code, § 23153, subd. (b)).² The court made defendant a ward of the juvenile court and placed her on home probation.

II. DISCUSSION

Defendant contends there was insufficient evidence to support her convictions. The primary issue in this case is whether a passenger who grabs the steering wheel and thereby takes sufficient control of the vehicle to cause a crash is "driving" the car **46 within the meaning of the Vehicle Code. There is no California case directly on point. We are persuaded, however, by out-of-state authority and a common sense interpretation of the applicable statutes involving driving under these circumstances that the passenger assumed actual physical control of the vehicle, and therefore is considered to be driving it. Thus, we disagree with defendant and affirm for the reasons explained below.

Section 23153 proscribes driving under the influence and causing injury with two provisions of parallel structure.

*1469 Section 23153, subdivision (a) provides: "It is unlawful for any person, while under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver."

Section 23153, subdivision (b) provides, in pertinent part: "It is unlawful for any person, while having 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver." ³

While subdivision (a) speaks in terms of both alcohol and drugs, we speak in terms of alcohol only because drugs are only peripherally involved in this case.

Subdivisions (a) and (b) have essentially four elements: (1) excessive alcohol intake, as differently defined by each subdivision; (2) driving a vehicle; (3) committing an act which violates the law or neglecting a duty imposed by law; and (4) causing bodily injury to another person. (See People v. Minor (1994) 28 Cal.App.4th 431, 437-438, 33 Cal.Rptr.2d 641 ( Minor ) [listing three elements, conflating (1) and (2) into one].)

Defendant does not expressly dispute the first element, and the evidence clearly shows she was both under the influence of alcohol in violation of subdivision (a), and had a blood alcohol level of .08 percent or higher in violation of subdivision (b). Defendant contends that the evidence was insufficient to establish the second, third, and fourth elements of the offenses.

"To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]" ( People v. Kipp (2001) 26 Cal.4th 1100, 1128, 113 Cal.Rptr.2d 27, 33 P.3d 450.) This standard applies to juvenile delinquency adjudications. ( In re Roderick P. (1972) 7 Cal.3d 801, 809, 103 Cal.Rptr. 425, 500 P.2d 1.)

As noted, the primary issue in this case is whether defendant was driving the car. Section 305 defines "driver" as "a person who drives or is in *1470 actual physical control of a vehicle." (Italics added.) Judicial Council of California Criminal Jury Instructions (2011), CALCRIM No. 2241 elaborates: "A person drives a vehicle when he or she intentionally causes it to move by exercising actual physical control over it. The person must cause the vehicle to move, but the movement may be slight." (Italics added.)

**47 There are no California cases involving the question whether a passenger who seizes the steering wheel and causes a crash is a "driver." But there are instructive cases involving two people agreeing to drive one car at the same time. In In re Queen T. (1993) 14 Cal.App.4th 1143, 17 Cal.Rptr.2d 922 ( Queen T.), two intoxicated persons, one a minor, decided to drive a car in tandem. The driver operated the accelerator and brakes while the passenger steered because the driver did not know where to go. ( Id. at pp. 1144-1145, 17 Cal.Rptr.2d 922.) The court held that the passenger's "act of steering the car, although she was not operating the accelerator or brakes, renders her a 'driver' within the meaning of section 305[ ]...." ( Id. at p. 1145, 17 Cal.Rptr.2d 922.) That is, the act of steering the car placed the passenger in "actual physical control" of the vehicle.

Similarly, in People v. Verlinde (2002) 100 Cal.App.4th 1146, 123 Cal.Rptr.2d 322 ( Verlinde ), the passenger manipulated the steering wheel while the driver in concert operated the stick shift and the foot pedals. ( Id. at pp. 1155, 1160, 123 Cal.Rptr.2d 322.) Citing Queen T., the court concluded that both the passenger and the driver were driving the vehicle within the meaning of the Vehicle Code. ( Verlinde, supra, at p. 1160, 123 Cal.Rptr.2d 322.)

Defendant distinguishes these two cases by arguing "there was no agreement and no cooperation" between her and Mendoza. While that may be true, the question remains whether, by her act of grabbing the wheel and causing the crash, defendant was driving the car. Out-of-state authorities persuade us that defendant was in "actual physical control" of Mendoza's car and was thus the "driver" within the meaning of section 305.⁴

These cases arise from states whose statutes define driving in terms of "actual physical control" of the vehicle similar to section 305 and CALCRIM No. 2241. In In...