Filed 12/4/15 P. v. Macias CA2/4
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION FOUR


THE PEOPLE,                                                           B258519

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. KA099046)
         v.

GIOVANNI GREGORIO MACIAS,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County,
Douglas Sortino, Judge. Affirmed.
         Michelle T. Livecchi-Raufi, under appointment by the Court of Appeal, for
Defendant and Appellant.
         Kamala D. Harris, Attorney General, Gerard A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Assistant Attorney General, Steven D.
Matthews and J. Michael Lehmann, Deputy Attorneys General, for Plaintiff and
Respondent.




                      ___________________________________________
                                 INTRODUCTION
      Giovanni GregorioMacias appeals from a sentence of 10 years, eight months
following his convictions for driving under the influence (DUI) causing injury and
for driving with a blood alcohol level of 0.08 percent causing injury. He contends
the trial court erred in not instructing the jury on the lesser included offenses of
DUI without causing injury and driving with a blood alcohol level of 0.08 percent
without causing injury. Appellant also challenges his sentence on various grounds.
For the reasons explained below, we find no reversible error. Accordingly, we
affirm the judgment.


                          STATEMENT OF THE CASE
      A jury found appellant guilty of driving under the influence causing injury
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(Veh. Code, § 23153, subd. (a); count 1), and driving with a blood alcohol level of
0.08 percent or more, causing injury (§ 23153, subd. (b); count 2). It found true
the allegation that appellant personally inflicted great bodily injury (GBI) (Pen.
Code, § 12022.7, subd. (a)).
      Appellant admitted he had served a prior prison term (Pen. Code, § 667.5,
subd. (b)), and that he had suffered a prior “strike,” a conviction for a serious or
violent felony (§§ 667, subds. (a) & (b)(1), 1170.12, subds. (a)-(d)). The court
sentenced appellant to the low term of 16 months on count 1, doubled for the prior
strike, plus five years for the serious and violent felony allegation and three years
for the GBI allegation. It imposed the same sentence on count 2, and stayed it
pursuant to Penal Code section 654.
      Appellant filed a timely notice of appeal.

1
       All further statutory citations are to the Vehicle Code , unless otherwise
stated.

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                          STATEMENT OF THE FACTS


      A.     Prosecution Case
      On June 9, 2012, at around 5:30 a.m., Peter Armas was crossing the street
when he was hit by appellant’s car. He suffered multiple injuries, and had to
undergo five surgeries. As a result of the accident, Armas suffered a permanent
injury to his left ankle that prevents him from lifting his left foot.
      West Covina Police Officer Abel Hernandez arrived shortly after the
incident. He interviewed appellant, who provided several explanations for the
accident. Appellant initially told the officer that another vehicle had broadsided
his vehicle resulting in his vehicle striking Armas. Officer Hernandez observed no
vehicle damage consistent with this story. Appellant then stated that the other
vehicle had cut him off, that he took “evasive action” and turned the steering
wheel, causing it to collide with the curb. Appellant told the officer he did not
recall hitting a pedestrian. Based on the physical evidence and his interview of
appellant, Officer Hernandez concluded that appellant was driving eastbound,
crossed over to the opposite lane, hit the sidewalk, and then struck Armas.
      Officer Hernandez observed signs that appellant was intoxicated, but
appellant denied he had been drinking. Appellant also stated that he had gotten
eight hours of sleep the prior night. Appellant declined to have his blood alcohol
tested by a breath analyzer, opting to have his blood drawn and tested for alcohol.
A field sobriety test indicated that appellant was impaired.
      Appellant was arrested, and taken to the police station where his blood was
drawn at approximately 7:40 a.m. An analysis of the drawn blood indicated
appellant had a blood alcohol level of 0.08 percent. The same blood was tested in
January 2013 by a defense expert, and the analysis indicated that the blood alcohol


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level was 0.06 percent. A criminalist testified that the result of 0.06 percent was
consistent with the prior result of 0.08 percent because alcohol would evaporate
when the vial containing the drawn blood was opened. The criminalist further
opined that if appellant had a blood alcohol level of 0.08 percent at 7:40 a.m.,
appellant’s blood alcohol level was likely higher at the time of the accident.


       B.    Defense Case
       Appellant did not testify. Alexandra Castruita, a friend of appellant’s, was
present with him from the evening of June 8 to the early morning of June 9, 2012.
During that time, appellant was driving a “party bus” for a bachelor party.
Castruita observed appellant drinking half a beer at around 12:00 a.m., and a
“Jager bomb,” a shot of Jagermeister mixed with an energy drink, at around 1:00
a.m.


                                   DISCUSSION


       A.    Appellant was not Entitled to a Jury Instruction on the Lesser
Included Offense of Driving Under the Influence Without Injury.
       Appellant was charged with violating section 23153, subdivision (a), which
provides: “It is unlawful for a person, while under the influence of any alcoholic
beverage 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.” Appellant
was also charged with violating section 23153, subdivision (b) which provides: “It
is unlawful for a 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,


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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.”
      When the trial court and the parties discussed proposed jury instructions,
defense counsel requested that the trial court instruct the jury on the lesser included
offenses of “simple DUI [driving under the influence] without injury,” set forth in
section 23152, subdivisions (a) and (b). Section 23152, subdivision (a) provides:
“It is unlawful for a person who is under the influence of any alcoholic beverage to
drive a vehicle.” Subdivision (b) of the same statute provides: “It is unlawful for a
person who has 0.08 percent or more, by weight, of alcohol in his or her blood to
drive a vehicle.” Defense counsel argued that the accident could have been caused
by a “non-volitional act” of falling asleep. The prosecutor responded that if the
jury were instructed on the lesser included offenses, it should also be instructed on
ordinary negligence because falling asleep would be a violation of the duty of care
imposed by law in driving a vehicle. The trial court agreed with the prosecutor,
stating that falling asleep at the wheel would be a failure to exercise due care and
would thus violate section 23153. It denied the request to instruct on the lesser
included offenses.
      Appellant contends the trial court erred in not instructing on the lesser
included offenses of sections 23152, subdivisions (a) and (b). We independently
review a trial court’s failure to instruct on a lesser included offense. (People v.
Licas (2007) 41 Cal.4th 362, 366; People v. Posey (2004) 32 Cal.4th 193, 218.)
“‘The trial court is obligated to instruct the jury on all general principles of law
relevant to the issues raised by the evidence, whether or not the defendant makes a
formal request.’ [Citations.] ‘That obligation encompasses instructions on lesser
included offenses if there is evidence that, if accepted by the trier of fact, would
absolve the defendant of guilt of the greater offense but not of the lesser.’”


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(People v. Rogers (2006) 39 Cal.4th 826, 866, quoting People v. Blair (2005)
36 Cal.4th 686, 744-745.)
      Aside from causing injury, the main difference between section 23153 (the
charged offenses) and 23152 (the requested lesser included offenses) is that the
former requires that the driver do an act forbidden by law or neglect a duty
imposed by law in driving the vehicle. Although appellant acknowledges that
ordinary negligence can satisfy this element, he argues that a jury could have found
he “fell asleep at the wheel unrelated to alcohol, in a non-negligent way.”
Appellant contends the trial court improperly precluded the jury from making this
finding when it denied the request for an instruction on the lesser included
offenses. We disagree.
      A driver on a public street or highway must exercise ordinary care to avoid
putting himself or others in danger, to avoid accidents, and to maintain control of
the vehicle. (People v. Oyaas (1985) 173 Cal.App.3d 663, 669.) It is well
established that “falling asleep while driving is sufficient to establish a prima facie
case of ordinary negligence . . . , whereupon it becomes incumbent upon the
defendant to offer proof of circumstances in excuse or justification of his conduct.”
(Cooper v. Kellogg (1935) 2 Cal.2d 504, 509.) Accordingly, unless appellant
could show justification or legal excuse for falling asleep, a jury could not, as a
matter of law, find that he fell asleep at the wheel in a nonnegligent manner.
Appellant failed to meet his burden to show justification or legal excuse. Although
appellant suggests that he may have fallen asleep due to overwork or lack of rest
the previous night, no evidence was presented that he was compelled to drive while
deprived of sleep. Nor was there evidence that appellant suffered from an
undiagnosed medical condition, such as narcolepsy, or had been prescribed
medication that unknowingly caused drowsiness. In short, appellant did not


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demonstrate that the victim’s injuries resulted from appellant’s “non-volitional” act
that was either justified or legally excused. Accordingly, the trial court did not err
in refusing to instruct the jury on the lesser included offenses.


      B.     The Trial Court Exercised and Acted Within its Discretion in
Sentencing Appellant.
      During the posttrial hearings that occurred over a period of months, the trial
court noted on several occasions the difficulty it was experiencing in determining
the appropriate sentence. For example, the court noted that defense counsel had
               2
filed a Romero motion to strike appellant’s prior strike and had requested that the
court grant appellant probation, but opined that the case warranted “custody time.”
At the sentencing hearing, the court reiterated that it had thought about the
appropriate sentence for the past three months, had reviewed the file, and had
considered appellant’s individual situation, the community as a whole, and the
impact on the victim.
      After considering all the facts and circumstances, including appellant’s
school records and letters on his behalf, the trial court denied the Romero motion to
dismiss the prior strike. The court characterized the prior strike, a robbery, as
“aggravated and serious.” Appellant had accosted a woman and her two children
using a replica gun as the woman returned home from work. The court further
noted that appellant had been on parole only 13 months when he committed the
instant offenses. “So I think the prior felony was very serious, very aggravated,
and again, it was recent.” Additionally, the court observed that appellant had a
criminal history prior to his robbery conviction.


2
      People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

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      With respect to the GBI enhancement, the court stated it had considered
striking the finding, but concluded, “I cannot, in good consci[ence], do that under
the circumstances of this case.” The court observed that “Mr. Armas is likely
going to be handicapped for the rest of his life . . . .” The court did strike the one-
year enhancement for the prior prison term finding, and sentenced appellant to the
low term on the charged offenses.
      Appellant contends the trial court imposed an inappropriate sentence as a
result of its failure to recognize its broad sentencing discretion. (See People v.
Sandoval (2007) 41 Cal.4th 825, 847-848 [failure to exercise sentencing discretion
may be an abuse of discretion].) We disagree. The record conclusively
demonstrates the trial court was aware of its sentencing discretion and
conscientiously exercised that discretion. With respect to the GBI enhancement,
the trial court considered striking the finding, but declined to do so in light of the
victim’s serious injuries. The decision was well within the court’s discretion.
      Similarly, the court was aware of its discretion to grant appellant’s Romero
motion to dismiss the prior strike. “[I]n ruling whether to strike or vacate a prior
serious and/or violent felony conviction allegation or finding under the Three
Strikes law, . . . the court in question must consider whether, in light of the nature
and circumstances of [the defendant’s] present felonies and prior serious and/or
violent felony convictions, and the particulars of his background, character, and
prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in
part, and hence should be treated as though he had not previously been convicted
of one or more serious and/or violent felonies.” (People v. Williams (1998)
17 Cal.4th 148, 161.) “[A] trial court will only abuse its discretion in failing to
strike a prior felony conviction allegation in limited circumstances,” such as where
the resulting sentence is “‘“arbitrary, capricious or patently absurd”’” under the


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specific facts of a particular case. (People v. Carmony (2004) 33 Cal.4th 367,
378.) Here, the trial court considered the appropriate factors and imposed a
rational, nonarbitrary sentence. The court’s determination, based on the totality of
the circumstances, that appellant did not fall outside the spirit of the Three Strikes
law was well within its discretion. Accordingly, the trial court did not abuse its
discretion in denying appellant’s Romero motion.
      Appellant also contends the trial court should have accepted defense
counsel’s proposal to sentence appellant to a year in county jail, which would have
resulted, effectively, in a three year sentence, based on appellant’s waiver of credit
for time served. In light of the current offenses and appellant’s serious criminal
history, we conclude the trial court acted within its discretion in declining to adopt
defense counsel’s proposal and instead imposing the mandatory minimum
sentence.
      Finally, appellant suggests the trial court could have imposed a lesser
sentence based on a determination that the mandatory minimum sentence was cruel
and unusual. Whether a sentence is cruel and unusual is a fact intensive issue, and
depends on the nature and facts of the crime and offender. (See People v. Weddle
(1991) 1 Cal.App.4th 1190, 1196-1197.) Here, appellant did not produce a factual
record sufficient for the trial court even to consider the claim. Thus, he forfeited
the argument. Were we to consider it, we would conclude that imposition of the
low term, enhanced for the GBI allegation and appellant’s serious criminal history,
is not cruel and unusual.




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                                 DISPOSITION
     The judgment is affirmed.


     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.




                                               MANELLA, J.


We concur:




EPSTEIN, P. J.




WILLHITE, J.




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