Filed 5/21/14 P. v. Abarca CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT



THE PEOPLE,                                                          B248332

                         Plaintiff and Respondent,                   (Los Angeles County
                                                                      Super. Ct. No. VA119349)
                   v.

EMILIANO ABARCA,

                         Defendant and Appellant.



         APPEAL from the judgment of the Superior Court of Los Angeles County.
John A. Torribio, Judge. Affirmed.


         Lisa M. J. Spillman, under appointment by the Court of Appeal, for Defendant and
Appellant.


         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle and Eric J.
Kohm, Deputy Attorneys General, for Plaintiff and Respondent.


                                           ______________________
                                       SUMMARY
       Defendant Emiliano Abarca was convicted by jury of driving under the influence
causing injury (Veh. Code, § 23153, subd. (a); count 1), and driving with a 0.08 percent
blood alcohol level causing injury (Veh. Code, § 23153, subd. (b); count 2), with great
bodily injury (Pen. Code, § 12022.7, subd. (a)) and prior conviction allegations
(Veh. Code, § 23152, subd. (b)) for each count. The trial court sentenced defendant to
the midterm of two years on count 1, plus three years for the great bodily injury
enhancement. His sentence on the second count was stayed under Penal Code section
654.
       Defendant contends there is insufficient evidence he committed an illegal act or
failed to perform a legal duty causing the victim’s injury, a required showing for both
counts. Defendant contends the evidence he failed to yield to the victim (who had the
right of way) was improbable. Defendant also contends the trial court erred in failing to
grant his motion for acquittal on this same basis. Lastly, defendant contends the trial
court abused its discretion when it denied probation. Finding no merit in any of these
contentions, we affirm.
                                         FACTS
       Angelica Ponce dated defendant for five years. On April 10, 2011, defendant came
to Ponce’s apartment around 4:00 p.m., and they watched a movie together. While at
Ponce’s apartment, defendant “casually” sipped one whiskey with water and ice, and ate
two tacos.
       At 5:30 p.m., defendant and Ponce got ready to go out to dinner. They drove in
defendant’s Chrysler to El Torito restaurant in La Palma. They were seated for dinner by
6:20 p.m. and they each ordered a margarita. Their drinks arrived within five minutes.
They also ordered enchiladas and tortilla soup, which arrived at their table between
6:35 and 6:40 p.m. It took them 20 to 30 minutes to eat their meal, after which they
ordered a second round of margaritas. They received their drinks around 7:15 or
7:20 p.m., and finished drinking by 7:50 p.m. Defendant paid the bill, and they left the



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restaurant by 8:15 p.m. Ponce was slightly dizzy from the drinks. She lied at the
preliminary hearing when she testified she was sober when leaving the restaurant.
      Defendant drove towards Ponce’s apartment, and they approached the complex
within 10 minutes of leaving the restaurant. When defendant started to make a left turn
to the complex, Ponce did not notice any oncoming traffic. She could not remember
whether defendant stopped before making the left turn. As defendant was turning, Ponce
noticed the headlight of a motorcycle in her peripheral vision. Ponce raised her hands to
her face before the motorcycle, driven by Robert Duran, crashed into the passenger side
of defendant’s car. Ponce could not remember hearing the screeching of any brakes
before the impact.
      Los Angeles County Sheriff’s Sergeant Ryan Vienna arrived at the scene of the
accident at 8:30 p.m. He saw that the right front passenger panel of defendant’s car was
damaged. Duran’s motorcycle was completely destroyed, broken into pieces. Duran was
on the ground, and was not breathing. Sergeant Vienna removed Duran’s helmet and
performed CPR. Duran gasped for air and started breathing again.
      Sergeant Vienna interviewed Ponce. Ponce told him defendant had not been
drinking because she did not want him to be arrested. Ponce admitted at trial that
defendant was under the influence of alcohol when he drove.
      Deputy Chris Bronowicki arrived at the scene of the accident and took
photographs. He took pictures of a skid mark, and placed an orange mark where he
believed it began. He measured it to be 89 feet long. He noticed a gouge mark where the
skid mark ended, but he did not photograph it. He also created a “factual diagram” that
documented the physical evidence at the scene of the accident, including the location of
the vehicles, skid marks, and gouge marks.
      Deputy Bronowicki administered field sobriety tests to defendant, which were
recorded on video, and played for the jury. Defendant seemed intoxicated; he had slowed
or slurred speech, an unsteady gait, bloodshot and watery eyes, and he smelled of alcohol.
Defendant told responding deputies that he had only consumed one drink. However,
defendant repeatedly failed to follow Deputy Bronowicki’s instructions and was unable


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to complete the field sobriety tests properly. For example, he swayed noticeably during
the Romberg Balance Test. He also used his left hand when he was instructed to use his
right hand in the finger to nose test, and he did not follow instructions to return his hand
to his side after touching his nose. He also swayed while performing the test. Defendant
could not track an object with his eyes without moving his head, as he was instructed to
do. Therefore, Deputy Bronowicki concluded that defendant had been driving while
intoxicated, and arrested him at 10:03 p.m.1
       Detective Russell Townsley, an accident investigation and reconstruction expert,
investigated the collision. He arrived at the scene at 9:50 p.m., and saw defendant’s car
and Duran’s motorcycle. He observed a lengthy skid mark, and concluded it was caused
by Duran’s tire when Duran braked, causing the wheel to lock. He saw gouge marks near
the end of the skid mark, caused by the motorcycle’s right foot pegs.
       The street on which the accident occurred was on a hill. Drivers in opposing
traffic would be unable to see each other until passing over the crest of the hill.
Oncoming traffic would have been visible to defendant for 483 feet (between the point of
impact and where the hill crested).
       Detective Townsley noted that there was a small error in Bronowicki’s “factual
diagram” of the scene. He did not believe the gouge marks were correctly noted on the
diagram, and believed that the collision occurred at the gouge mark in the eastbound
number one lane. Also, Detective Townsley believed that Deputy Bronowicki’s orange
marks on the road, demarking the motorcycle’s skid mark, did not accurately reflect
where the mark started.




1      During cross-examination of Deputy Bronowicki, when shown the “factual
diagram” of the accident scene he had created, he testified the point of impact was not
correctly designated. He also testified that there was one gouge mark in the pavement, at
the end of the skid mark. He admitted that he testified at the preliminary hearing that he
did not know what caused the gouge mark, although at trial he believed the mark was
made by the motorcycle’s foot peg.


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       According to Detective Townsley, Duran was traveling between 48 to 53 miles per
hour before he applied his brakes, 90 feet before the impact. When the car and
motorcycle collided, Duran was traveling between 47 to 51 miles per hour.
       Detective Townsley was also an expert in field sobriety tests, and after watching
the video of the field sobriety tests administered to defendant, concluded that defendant
was under the influence of alcohol.
       When defendant arrived at the Lakewood Police Station jail at 10:35 p.m., Deputy
Maira Llamas administered the Datamaster Breathalyzer test to determine his blood
alcohol content (BAC). At first, defendant did not give a proper sample for the test.
When Deputy Llamas gave the test again, the test returned results of 0.11 percent at
10:35 p.m. and 0.12 percent at 10:38 p.m.
       Criminalist Juan Apodaca reviewed the breathalyzer results, and concluded the
tests results were accurate and the breathalyzer was functioning properly. Based on a
hypothetical tracking the facts of this case, Apodaca concluded that a man of defendant’s
size would have a BAC of 0.11 to 0.15 percent or 0.12 to 0.16 percent at 8:30 p.m., when
the accident occurred. An individual would have to consume between five and seven
drinks to have the BAC values attributed to defendant. If defendant had only consumed
the amount of alcohol to which Ponce testified, defendant’s BAC would have been only
0.04 percent.
       Duran was hospitalized for three months after the accident. He required surgery to
repair a broken clavicle and both of his ankles. He also needed extensive therapy to
recover from the accident. His memory was impaired, and he had no recollection of the
accident.
       Ponce testified again on defendant’s behalf. She returned to the scene of the
accident the day after the accident and saw no skid marks. However, she admitted she
was not looking for skid marks.
       Dr. Robert Coppolino, an accident reconstruction expert, testified for the defense.
He opined that the accident happened in the eastbound number two lane, based primarily
on the location of a fluid leak he believed originated from defendant’s car.


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Dr. Coppolino opined that Duran’s motorcycle was traveling 62 miles per hour upon
impact, and that it skidded 62 feet after the collision. He opined the speed of defendant’s
car upon impact was 10 miles per hour. According to Dr. Coppolino, Duran’s
motorcycle was not visible to defendant when defendant initiated his left turn.
       Dr. Coppolino reviewed Detective Townsley’s report, and met with Detective
Townsley. He disagreed with the detective’s assessment of the motorcycle’s speed
before the collision. He believed that either Townsley or Bronowicki was incorrect about
the observations reported at the scene of the accident. However, his opinions were based,
in part, on observations of the scene of the crash six months after the crash occurred.
Also, his opinions assumed a 0.7 second decision time before executing a left turn,
despite the fact that decision time would be extended if the driver was under the influence
of alcohol.
                                      DISCUSSION
       Defendant contends insufficient evidence supports the finding that he failed to
yield to Duran, reasoning Detective Townsley’s testimony was improbable because his
assessment of where the skid marks began was different from Deputy Bronowicki’s; both
Townsley and Bronowicki testified that the diagram of the accident was incorrect, but for
different reasons; and Townsley and Bronowicki testified to different locations and
characteristics of the gouge marks, and what caused the gouge marks, among other
differences in their testimony. For these same reasons, he contends the trial court erred in
failing to grant his motion for acquittal. He also contends the trial court abused its
discretion in denying probation because the trial court relied on a misstatement of the
evidence by the prosecution. Defendant contends he received ineffective assistance of
counsel, because his trial attorney did not object to the denial of probation.
       We conclude there was ample evidence supporting defendant’s conviction, and the
existence of conflicting evidence does not vitiate the jury’s finding that defendant failed
to yield to Duran. Defendant asks this court to reweigh the evidence which we cannot do.
We also find that the trial court did not abuse its discretion in sentencing defendant to
prison rather than granting probation.


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       1.     Sufficiency of the Evidence
       “In assessing the sufficiency of the evidence, we review the entire record in the
light most favorable to the judgment to determine whether it discloses evidence that is
reasonable, credible, and of solid value such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.” (People v. Bolin (1998) 18 Cal.4th 297,
331.) “The test is whether substantial evidence supports the decision, not whether the
evidence proves guilt beyond a reasonable doubt.” (People v. Mincey (1992) 2 Cal.4th
408, 432.) Therefore, the reviewing court’s “opinion that the evidence could reasonably
be reconciled with a finding of innocence or a lesser degree of crime does not warrant a
reversal of the judgment.” (People v. Hill (1998) 17 Cal.4th 800, 849.) Reversal is only
warranted when it clearly appears “ ‘that upon no hypothesis whatever is there sufficient
substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin, supra, at
p. 331.)
       We defer to the trier of fact’s evaluation of credibility. (People v. Snow (2003) 30
Cal.4th 43, 66.) Neither conflicts in the evidence nor suspicious testimony justify the
reversal of a judgment, because it is the exclusive province of the trier of fact to
determine the credibility of witnesses and the truth or falsity of the facts testified to.
(People v. Huston (1943) 21 Cal.2d 690, 693, overruled on other grounds in People v.
Burton (1961) 55 Cal.2d 328, 352.) An exception to this rule is when the witness’s
statements are physically impossible or inherently improbable. To be inherently
improbable, the falsity of the statements “ ‘ “ ‘must be apparent without resorting to
inferences or deductions. [Citations.]’ ” ’ [Citation.]” (People v. Sassounian (1986)
182 Cal.App.3d 361, 409.)
       Defendant’s conviction for driving under the influence and causing injury on both
counts requires a showing that defendant committed “any act forbidden by law” or
“neglect[ed] any duty imposed by law.” (Veh. Code, § 23153, subds. (a) & (b).) The
prosecution’s theory of proof of this element was that defendant failed to yield to Duran
when making a left turn into Ponce’s apartment complex. (See § 21801.)



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       Defendant claims small differences in Detective Townsley’s and Deputy
Bronowicki’s observations, and inaccuracies on the crash diagram, render Detective
Townsley’s expert opinion incredible and improbable. However, “ ‘[i]t is well settled in
California that one witness, if believed by the jury, is sufficient to sustain a verdict. To
warrant the rejection by a reviewing court of statements given by a witness who has been
believed by the trial court or the jury, there must exist either a physical impossibility that
they are true, or it must be such as to shock the moral sense of the court; it must be
inherently improbable and such inherent improbability must plainly appear.’
[Citations.]” (People v. Watts (1999) 76 Cal.App.4th 1250, 1259.) There was nothing
impossible about Detective Townsley’s opinion that the collision occurred in the number
one lane. This opinion, coupled with the opinion about the rate of speed Duran was
traveling, the evidence that Duran braked for 90 feet, and the visibility from defendant’s
vantage point, clearly supports a finding that defendant failed to yield to Duran. Indeed,
defendant agrees this evidence, if credited, supports his conviction. Although
defendant’s expert disagreed with this assessment, it was for the jury to weigh and
reconcile the credibility of the various witnesses.
       For these same reasons, we also find no error in denying defendant’s motion for
acquittal under Penal Code section 1118.1.
       2.     Probation
       Defendant next claims the trial court erroneously denied probation because the
court relied on a misrepresentation of fact in the People’s sentencing memorandum.
Defendant failed to raise the issue below; therefore, the issue has been waived. (People
v. Gonzalez (2003) 31 Cal.4th 745, 755; People v. Scott (1994) 9 Cal.4th 331, 353.)
Predictably, defendant complains that counsel’s failure to object constitutes ineffective
assistance of counsel. Assuming, for argument’s sake, that defendant’s claim was
preserved for review or would be reached in addressing his claim of ineffective assistance
of counsel, it has no merit. (See People v. Ledesma (1987) 43 Cal.3d 171, 217-218 [a
defendant claiming ineffective assistance of counsel must also show prejudice; namely, a



                                              8
reasonable probability that but for counsel’s error, the result of the proceeding would
have been different].)
       A trial court has broad discretion to determine whether a defendant is suitable for
probation. (People v. Welch (1993) 5 Cal.4th 228, 233; People v. Aubrey (1998)
65 Cal.App.4th 279, 282.) A court abuses its discretion by denying probation only when
its determination is arbitrary, capricious, or beyond the bounds of reason. (See People v.
Warner (1978) 20 Cal.3d 678, 683.) Moreover, a single aggravating factor may support
the denial of probation, and the court is presumed to have considered the relevant factors
set forth in the California Rules of Court pertaining to the grant or denial of probation
absent a record reflecting otherwise. (People v. Robinson (1992) 11 Cal.App.4th 609,
615; rule 4.409.)
       In denying probation, the trial court did not state its reasons. Instead, it indicated
that it had relied on the probation report and the People’s sentencing memorandum. The
sentencing memorandum sought the maximum sentence of six years based on
defendant’s high BAC “of approximately 0.15% / 0.16%,” the severity of the victim’s
injuries, the impact on the victim and the victim’s family, and defendant’s prior record of
two DUI convictions. The probation report disclosed two DUI convictions and
recommended that probation be denied. The victim’s older sister testified at the
sentencing hearing, and described Duran’s significant injuries, and his continued
impairment. According to his sister, Robert Duran “today suffers from confusion, short
term memory loss, does not comprehend sarcasm or jokes.” He is “different because his
brain will not work the same way as yours and mine.”
       Defendant contends the portion of the sentencing memorandum which stated that
his BAC was “0.15% / 0.16%” was underlined, evidencing that the trial court relied on
this fact when denying probation, and that this was a misstatement of the evidence at
trial. The trial evidence was that defendant had a BAC of either 0.11 to 0.15 percent or
0.12 to 0.16 percent when the accident occurred.
       It is pure conjecture that the trial court relied on this fact alone when denying
probation. Moreover, the sentencing memorandum does not misstate the evidence, but


                                              9
rather merely highlights the upper limits to which the criminalist testified. Apodaca
testified that a man of defendant’s size would have a BAC of 0.11 to 0.15 percent or
0.12 to 0.16 percent when the accident occurred. Fairly read, the record reflects the trial
court considered, at the very least, the criteria of (1) “[w]hether the defendant inflicted
physical or emotional injury”; (2) defendant’s “[p]rior record of criminal conduct”; and
(3) defendant’s “[a]bility to comply with reasonable terms of probation as indicated by
the defendant’s age, education, health, mental faculties, history of alcohol or other
substance abuse” (Cal. Rules of Court, rule 4.414(a)(4), (b)(1) & (b)(4).) Under these
circumstances any argument for probation or a low term prison sentence would have been
futile because defendant would not have been an appropriate candidate for either one.
                                      DISPOSITION
       The judgment is affirmed.


                                                   GRIMES, J.
       We concur:
                     RUBIN, Acting P. J.




                     FLIER, J.




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