People v. Lares

• Decision Date: 29 April 1968
• Docket Number: Cr. 437
• Citation: 68 Cal.Rptr. 144,261 Cal.App.2d 657
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Miguel Eugene LARES, Defendant and Appellant.

Page 144

68 Cal.Rptr. 144

261 Cal.App.2d 657

PEOPLE of the State of California, Plaintiff and Respondent, v. Miguel Eugene LARES, Defendant and Appellant.

Cr. 437.

Court of Appeal, Fifth District, California.

April 29, 1968.

Gale & Goldstein and Lawrence M. Goldstein, Sacramento, for appellant.

Thomas C. Lynch, Atty. Gen., Doris H. Maier, Asst. Atty. Gen., and Raymond M. Momboisse, Deputy Atty. Gen., Sacramento, for respondent.

OPINION

CONLEY, Presiding Justice.

Miguel Eugene Lares, the defendant, familiarly known as 'Mike,' has been sentenced to the California Youth Authority after conviction of felony driving while intoxicated (Veh.Code, § 23101), and two counts of resisting a public officer; he came to grief when he unsuccessfully tried to mix whiskey drinking with automobile driving in Yolo County.

Immediately after school on the day of the incident, Lares picked up two 17-yearold friends in the family car, a 1964 Oldsmobile. The boys went to pay a telephone bill; the three teenagers then washed the car and afterwards went over to the home of a girl, Becky Estrada; up to that time no one had had any intoxicating drink. The defendant and one of his friends each had a drink of intoxicating liquor after defendant obtained a fifth of whiskey; it was opened at about 7 o'clock, when Mike poured some of it into a glass which contained half mix and half whiskey and drank all, or at least part, of the liquid. This witness testified that by the time he got out of the car there was nothing unusual about Mike's driving; and that he had been with defendant for about four hours. Lupe Robert Cortez testified that up until approximately 6 p.m. on the day of the accident no one had had any intoxicating liquor to drink; that defendant Lares obtained a bottle of whiskey after that time, and that the latter drank whiskey from a glass on the River Road near the Anchor Inn as the car was stopped on the levee; about three-quarters was mix and a quarter whiskey, and the mix and whiskey came about an inch from the top of the glass; he thought that Mike drank all of his drink. He also testified that the appellant poured himself a second drink. Cortez testified that he got home at about 9:30 at night, but that when he left defendant, Mike Lares, was driving as he always did--normally; he admitted that he did not want to be riding with defendant when he was drinking, and defendant had had two drinks in his presence.

David Acosta, testified that he saw defendant at about 10 o'clock on September 27, 1966, at his house. He and his brother, Benjamin Acosta, and Javier Martinez all were in the car later at the time of the accident. Benjamin Acosta was not present to testify at the trial as he was then in the army and Javier Martinez was also absent being then in Mexico. David stated that at 10:30 o'clock at night they went for a ride and Mike was driving; that he was in the back seat and his brother and Mike were in the front seat. They rode around until the accident happened about 11:30 p.m. David said that he saw Mike take two drinks in the car while they were riding around. He testified that, in his opinion, Mike was drunk; that he drove recklessly; that he was going at about 45 miles an hour when he tried to turn the corner just before the accident happened; that he smelled a strong odor of alcohol; that Mike drove fast and kept going off the road; that when the car went around the corner, the driver swerved to the right, and, because he was then about to hit a parked car, he turned back to the left and the car went into the ditch. The evidence is thus ample to show that the defendant was under the influence of alcohol prior to and at the time of the accident.

Witness David Acosta got out of the car after it overturned; his brother was in the front seat; Javier Martinez pulled his brother out, and as Benjamin walked along the road he fell to the ground. David was asked in Benjamin said anything about being hurt; at that time there was an objection by defense counsel that such an answer would involve hearsay. The prosecutor told the judge that the testimony was offered as something said in the flush of an exciting event and that such a spontaneous declaration was therefore admissible. The court overruled the objection. David testified that Benjamin said that he could not walk because his back was hurting him. David also testified that his brother was 'knocked out.' When the ambulance arrived at the scene, Benjamin was in the road lying face down. He was conscious and he talked to the ambulance attendants. The prosecutor elicited from the ambulance attendants what the injured person had said, and an objection was made that this would be hearsay. The prosecutor said that it was a declaration of pain, a statement as to physical condition, state of mind; the objection was overruled. The defendant was allowed to testify that Benjamin Acosta exclaimed that he had been in an accident; that he had walked some distance and found that he could go no further; that his back had given him great pain and that he collapsed. The attendants put the boy in the ambulance and took him to the hospital, where he was examined by the doctor on duty, was given a pain pill and released the next day. Benjamin Acosta's stepfather testified that the boy did not return to work immediately after the accident, because his back was bothering him and that for a period of two or three weeks he did not work. The doctor testified that at the time the Acosta boy was brought in he was suffering from acute back strain. He saw the boy for the first time in the emergency room when he was complaining of pain located more in the upper part than in the lower part of the back. He was conscious, oriented and alert.

After the accident, the police went to the home of Mike Lares, the defendant driver; his mother answered the door and called the boy; after that time the defendant became difficult to handle because of his condition, and the mother and the sisters had some words with the police. Finally, the police took the defendant to headquarters accompanied by his friend, who had brought the police to defendant's house, and defendant's sister.

The arguments on appeal do not involve the convictions on the third and fourth counts, but concern themselves only with the felony conviction of driving while intoxicated. This crime is a violation of 23101 of the Vehicle Code, which reads as follows:

'Any person who, while under the influence of intoxicating liquor, or under the combined influence of intoxicating liquor and any drug, drives a vehicle and when so driving does any act forbidden by law or neglects any duty imposed by law in the driving of such vehicle, which act or neglect proximately causes bodily injury to any person other than himself is guilty of a felony and upon conviction thereof shall be punished by imprisonment in the state prison for not less than one year nor more than five years or in the county jail for not less than 90 days nor more than one year and by fine of not less than two hundred fifty dollars ($250) nor more than five thousand dollars ($5,000).'

(See People v. Clark, 202 Cal.App.2d 513, 516, 20 Cal.Rptr. 803.)

The conviction on the felony charge is attacked by appellant on several grounds:

1) it is argued that there was no proper proof of bodily injury to any of the minors who were riding with the defendant; that the only evidence which tended to prove the injury of a guest or passenger was inadmissible as hearsay; that one of the reasons why the testimony offered on the latter point was inadmissible was that no opportunity was given to cross-examine the allegedly injured person and that this constituted a breach of the rights of the defendant under the federal Constitution; that the court erred prejudicially by refusing an ultimate continuance to permit the defense to procure a statement which the injured person had made to his draft board relative to his later physical condition and lack of injury;

2) it is urged that there was no proof that the defendant had broken the law in connection with his driving; and

3) it is claimed that the court committed prejudicial error by failing to instruct the jury that it could bring in a verdict of misdemeanor drunk driving as being included within the charge of felony drunk driving.

Although the prosecution is thus charged with multiple error, a scrutiny of these claims does not justify the contention that there should be a reversal of the judgment.

As we have seen, one of the elements of the crime defined by section 23101 of the Vehicle Code is that someone was injured as a result of driving the car while the defendant was under the influence of alcohol. The appellant claims that 'bodily injury' as used in the code section is so indefinite and uncertain as not to give a ground for a criminal conviction. The point has no merit. Bodily injury means just what it says--harm or hurt to the body. Common sense requires more for conviction than a 'shaking up' of a person in a car which is in an accident, or fright, or a minor headache; it means very obviously a...