People v. Freeman

THE PEOPLE, Plaintiff and Respondent, v. PAUL MARK FREEMAN, Defendant and Appellant.

F077543

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

October 6, 2020

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Stanislaus Super. Ct. Nos. 1431988, 1491573 & 4003568)

OPINION

APPEAL from a judgment of the Superior Court of Stanislaus County. Thomas D. Zeff, Judge.

Gabriel Bassan, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Jennifer Oleksa, and Cavan M. Cox, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

In 2012, appellant/defendant Paul Mark Freeman was placed on probation after pleading no contest to felony driving under the influence (DUI) causing injury (Veh. Code, § 23153, subd. (a)).¹

In August 2015, someone rear-ended Amanda Gutierrez's vehicle when she was stopped at a traffic light and immediately drove away from the scene. Ms. Gutierrez identified the subject vehicle as a Chrysler 300 with shiny rims. She later found a part from a Chrysler 300 inside her own vehicle. Shortly after Ms. Gutierrez was hit, a Chrysler 300 with similar rims crashed into a parked truck about a half-mile away from scene of the traffic light collision. When the police arrived, defendant was sitting in the driver's seat of the Chrysler, and he was under the influence of alcohol. He was still on probation. Defendant was arrested and released on his own recognizance (OR).

As a result of the August 2015 collision with Ms. Gutierrez, defendant was charged with felony DUI causing injury and other vehicular offenses, with two special allegations based on his 2012 conviction: (1) that he had a prior DUI conviction within the prior 10 years, and (2) that same offense was a prior strike conviction. He was not charged with any offenses from crashing into the parked truck.

While the new charges were pending, defendant failed to appear at a scheduled hearing on whether to revoke his probation and increase bail, and a bench warrant was issued. He was arrested five months later and remanded into custody for the duration of the proceedings. He was also charged with failing to appear.

At defendant's jury trial for the August 2015 traffic light collision, the defense theory was that there was no evidence defendant was driving the car that hit Ms. Gutierrez's vehicle. The jury found defendant not guilty of the charged felonies for DUI causing injury but convicted him of two misdemeanor DUI crimes as lesser includedoffenses. The court found the prior conviction allegations true. The court also found he violated probation in the 2012 case, and defendant pleaded guilty to failing to appear.

At the sentencing hearing, the court treated the two misdemeanor DUI convictions as felonies based on the existence of the prior felony DUI conviction and imposed an aggregate term of eight years four months for all three cases.

On appeal, defendant contends his convictions for the lesser included offenses based on the collision with Ms. Gutierrez must be reversed because he was never identified as the driver of the car that hit her vehicle. Defendant argues that given the absence of any identification evidence, the jury likely convicted him by improperly relying on his admitted collision with the parked truck. Defendant asserts the jury mistakenly believed it could find him guilty of the lesser included misdemeanor DUI offenses based on hitting the parked truck, and the lack of notice of the facts for his convictions violated his due process rights.

Defendant also argues the court improperly treated his two misdemeanor DUI convictions as felonies for sentencing purposes, since the jury only convicted him of misdemeanors as lesser included offenses of the charged DUI felonies for the traffic light collision. Defendant asserts, while the court found the prior conviction allegations true, it never found that the prior conviction from 2012 was a felony, which would have permitted the court to treat the misdemeanor charges as felonies. We correct the abstract of judgment and affirm.

FACTS

THE 2012 CONVICTION AND PROBATION

(Case No. 1431988)

On January 14, 2011, defendant was driving with his fiancée after leaving a bar. Defendant lost control of the car, swerved, veered to the right, spun out, and hit a light pole. Defendant and his fiancée were ejected. She suffered "significant injuries" including fractures in two vertebrae, a fractured pelvis, and a "likely brain injury."Defendant's blood-alcohol content was determined to be 0.22 percent. Defendant admitted drinking Red Bull and vodka.²

On May 1, 2012, a complaint was filed that charged defendant with count 1, felony DUI causing injury (§ 23153, subd. (a)), and count 2, felony driving with a blood-alcohol content of 0.08 percent or higher causing injury (§ 23153, subd. (b)), with special allegations that his blood-alcohol level was 0.15 percent or higher (§ 23578), and the victim suffered great bodily injury (Pen. Code, § 12022.7, subd. (a)).

On May 18, 2012, defendant pleaded no contest to count 1, felony DUI causing injury (§ 23153, subd. (a)) and admitted the special allegations that his blood-alcohol level was 0.15 percent or higher and the victim suffered great bodily injury. The court dismissed the other allegations, suspended sentence, and placed him on felony probation for five years subject to certain terms and conditions, including serving 180 days in jail, obeying all laws, and not consuming alcohol.

THE COLLISION AT THE TRAFFIC LIGHT

(Case No. 1491573)

On the night of August 22, 2015, Ms. Gutierrez was driving on Burney Street in Modesto in her Chrysler Town and Country van. She stopped at a red light at the corner of G Street. There was a car in front of her that also stopped at the intersection.

At the moment the traffic light changed to green, the car in front of her drove forward. Before Ms. Gutierrez could move forward, her vehicle was suddenly hit from behind by another vehicle. The impact forced her knees to hit the steering column. She felt immediate pain in her arms as she was pushed forward.

Ms. Gutierrez turned onto G Street and parked her vehicle. Ms. Gutierrez testified it was dark, but the area was illuminated by streetlights. The driver of the second car alsoturned onto G. Street, but the driver did not stop, roll down his window, or try to make contact with Ms. Gutierrez. Instead, the vehicle drove around the driver's side of Ms. Gutierrez's car and left the area. As the vehicle drove past her, Ms. Gutierrez determined it was a dark-colored Chrysler 300 with "nice shiny rims." She recognized the model because she had been interested in buying that type of car.

As the Chrysler 300 drove by her, Ms. Gutierrez was also able to see the driver "for a quick second" because he looked at her. She described a man with "darker hair" and "not a dark complexion but not a light complexion either." She saw the driver's face "very quickly" until the driver placed his hand over his face and obstructed her view.

As the Chrysler 300 drove away, Ms. Gutierrez tried to signal the driver by honking her horn. He did not stop and kept driving, and he was going "too fast, like swerving away." He drove toward the La Loma area and never returned to the scene.

The initial investigation

At 10:50 p.m., Modesto Police Officer David Chamberlain received a dispatch to respond to a hit and run collision at the intersection of Burney and G Street in the La Loma area. At 11:09 p.m., Chamberlain arrived at the scene and contacted Ms. Gutierrez.

Officer Chamberlain testified Ms. Gutierrez reported a dark car with chrome rims hit her vehicle, and a dark-skinned male with short hair drove it.³ Chamberlain determined her vehicle had minor damage from the rear-end collision. Chamberlain reported the incident as a noninjury collision because Ms. Gutierrez did not appear injured or ask for an ambulance.

Ms. Gutierrez was never asked to identify anyone as the driver and testified she would not be able to do so.Ms. Gutierrez's injuries

Ms. Gutierrez testified she suffered bruises on her chest from the seat belt. She did not go to the hospital that night. A few days after the crash, Ms. Gutierrez felt bursitis in her right hip from being forced against the seat belt. Her legs started to hurt and swell, and she had trouble walking. She went to her physician and received cortisone shots. At the time of trial, she limped and continued to have leg and hip pain. Ms. Gutierrez's physician testified the bursitis in her hip was unlikely to improve over time and could lead to arthritis.

Defendant's collision with the parked truck

On the same night, Shelley Farmer was at her home in Modesto. Her husband's unoccupied white truck was parked on the street in front of their house. Ms. Farmer heard a big crash. She looked outside and saw that a black or dark blue vehicle had just hit her husband's truck with such force that the truck had been pushed forward by two houses, veered right, and ended up on a neighbor's lawn. The truck was totaled.

Ms. Farmer testified the vehicle that hit the truck was a "really nice car" with "nice rims," and it was "in pieces" because of the collision.

Ms. Farmer told her family to call 911 and ran out to the car that caused the collision. The driver was the only occupant, and he was sitting in the car. He had dark hair.

Ms. Farmer asked the driver if he was okay. The driver, later identified as defendant, was "really, really confused. He said he was being chased and that's why he was going so fast. They wanted his...