Filed 9/18/14 P. v. O’Neal CA2/6
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 SIX


THE PEOPLE,                                                                  2d Crim. No. B247285
                                                                          (Super. Ct. No. 2011013807)
     Plaintiff and Respondent,                                                 (Ventura County)

v.

DWAYNE ROBERT O'NEAL,

     Defendant and Appellant.




                   Dwayne Robert O'Neal appeals the judgment entered after a jury convicted
him of driving under the influence causing injury (Veh. Code,1 § 23153, subd. (a)). The
trial court suspended imposition of sentence and placed appellant on 48 months of formal
probation with the condition that he serve 210 days in county jail. Appellant contends the
court erred in failing to grant his motion for acquittal (Pen. Code, § 1118.1) on the
ground that the prosecution had failed to establish the corpus delicti of the charged
offense. We affirm.
                                           STATEMENT OF FACTS
                   Sheena Alvitre suffered serious injuries after being hit while riding her
bicycle on Main Street in Ventura. Craig and Debbie Lucas were riding bicycles behind


         1 All further undesignated statutory references are to the Vehicle Code.
Alvitre when the incident occurred. The Lucases were about 50 to 100 feet behind
Alvitre when a passenger truck towing a fifth-wheel camping trailer travelling in the
same direction passed to their left. As the truck was passing Alvitre, the rear right edge
of the trailer "clipped" the trailer attached to the rear of Alvitre's bicycle "and she went
down." The truck did not stop and continued driving east on Main Street. Neither of the
Lucases was able to see who was driving the truck.
              The Lucases stopped to help Alvitre and waited for the police to arrive.
Several minutes later, the truck returned to the scene. Craig2 testified that a man "came
back with the [truck] and started talking to the police officers." Craig "figured it was the
man [who was] driving the [truck]" when the accident occurred. Craig "wouldn't be able
to recognize" the man and was unable to identify him in court. Debbie testified that she
saw a man and woman return in the truck and that she was "[p]retty sure" the man was
appellant, who she identified in court. Debbie did not actually see anyone step out of the
vehicle.
              Ventura Police Officer Rogelio Nunez was one of several officers who
responded to the scene. Officer Nunez contacted appellant, who was seated on the curb
with his wife Paula. Appellant identified himself as the driver of the truck. Appellant
said that he was driving east on Main Street when "[h]e noticed a pod of bicyclists
directly ahead of him, made a left-hand turning maneuver to clear the bicyclists, pulled
back into the roadway and was told that a bicyclist was hit."
              Appellant exhibited signs of intoxication and admitted he had been
drinking. Officer Nunez conducted field sobriety tests and concluded appellant was
intoxicated. The officer administered two preliminary alcohol screening tests. The first
test indicated that appellant had a blood alcohol level of 0.159, while the second indicated
a level of 0.17 percent. Appellant was arrested and taken to jail. Additional tests were
administered and indicated that appellant still had a blood alcohol level of 0.17 percent.
A scientist from the Ventura County Sheriff's Forensic Sciences Laboratory testified that

        2 We refer to the Lucases and Paula O'Neal by their first names for the sake of
clarity and intend no disrespect.
                                               2
the driver in a hypothetical mirroring the facts of the instant case would be impaired and
unable to safely drive a motor vehicle.
              Appellant testified in his own defense. He acknowledged drinking several
beers on the morning of the incident. He believed, however, that he did not drink enough
to be intoxicated and was capable of driving safely. He also believed he did not cause the
accident, or even hit Alvitre; rather, he believed that Alvitre crashed after hitting the curb.
He could not stop because there was no place to park, so he went around the block and
returned to the scene.
              Paula testified to her belief that the truck did not hit Alvitre. She inspected
the truck and found no signs of a collision.
              An accident reconstruction expert who testified on behalf of the defense
opined it was "pretty unlikely" that the truck hit Alvitre. The expert concluded it was
more likely that Alvitre ran into the curb by failing to turn when the road curved left.
                                       DISCUSSION
              At the close of the prosecution's case, appellant moved for an acquittal
pursuant to Penal Code section 1118.1.3 Appellant claimed among other things that the
evidence independent of his extrajudicial statements was insufficient to establish the
corpus delicti of the charged crime. In denying the claim, the court found: "[A]dmittedly
there is not a lot of evidence independent of [appellant's] confession or statement or
admission. He returns to the scene, is connected with the vehicle. Isn't seen to be
driving. . . . The question is whether there is sufficient, independent evidence to connect
him to being the driver of the vehicle. Some evidence is what is required. . . . Therefore,
the [section 1118.1] motion is denied." Appellant contends the court erred in denying the
motion. We conclude otherwise.


        3 Penal Code section 1118.1 provides in relevant part: "In a case tried before a
jury, the court on motion of the defendant . . . , at the close of the evidence on either side
and before the case is submitted to the jury for decision, shall order the entry of a
judgment of acquittal of one or more of the offenses charged in the accusatory pleading if
the evidence then before the court is insufficient to sustain a conviction of such offense or
offenses on appeal."
                                               3
              "In every criminal trial, the prosecution must prove the corpus delicti, or the
body of the crime itself—i.e., the fact of injury, loss, or harm, and the existence of a
criminal agency as its cause. In California, it has traditionally been held, the prosecution
cannot satisfy this burden by relying exclusively upon the extrajudicial statements,
confessions, or admissions of the defendant. [Citations.]" (People v. Alvarez (2002) 27
Cal.4th 1161, 1168-1169, italics omitted.) Our Supreme Court has recognized: "The
purpose of the corpus delicti rule is to assure that 'the accused is not admitting to a crime
that never occurred.' [Citation.] The amount of independent proof of a crime required
for this purpose is quite small; we have described this quantum of evidence as 'slight'
[citation] or 'minimal' [citation]. The People need make only a prima facie showing
'"permitting the reasonable inference that a crime was committed."' [Citations.] The
inference need not be 'the only, or even the most compelling, one . . . [but need only be] a
reasonable one . . . .' [Citation.]" (People v. Jones (1998) 17 Cal.4th 279, 301-302
(Jones).)
              The corpus delicti rule does not require proof of the perpetrator's identity.
(People v. Kraft (2000) 23 Cal.4th 978, 1057.) "' . . . [E]very crime "reveals three
component parts, first the occurrence of the specific kind of injury or loss . . . ; secondly,
somebody's criminality (in contrast, e.g. to accident) as the source of the loss, —these
two together involving the commission of a crime by somebody; and thirdly, the
accused's identity as the doer of this crime." By the great weight of authority, the first
two without the third constitute the corpus delicti.' [Citation.]" (People v. Miranda
(2008) 161 Cal.App.4th 98, 107.)
              Appellant was charged with violating subdivision (a) of section 23153,
which provides in pertinent part that "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 . . . , which act . . . proximately causes bodily injury to any person other
than the driver." To establish the corpus delicti of the crime, the prosecution thus had to
make a slight or prima facie showing that someone who was intoxicated drove the truck
and committed an illegal act that caused bodily injury to Alvitre.

                                              4
              We conclude that showing was made here. Appellant does not dispute he
was intoxicated, or that the driver of the truck committed an illegal act that caused bodily
injury.4 Although no one saw who was driving the truck when the accident occurred,
Debbie testified that she saw appellant and Paula return in the truck several minutes later.
Craig testified that the man Debbie identified as appellant "came back with the trailer and
started talking to the police officers." Paula was present when appellant spoke to Officer
Nunez and did not dispute appellant's assertion that he was the driver.5 This evidence
gives rise to a reasonable inference that appellant was driving the truck when the accident
took place. "' . . . [W]hen it is established by competent evidence that no one in the
reasonable vicinity except the suspect acknowledges having been the driver of the car and
the suspect has some demonstrable connection with the vehicle, it then becomes a
reasonable inference from circumstantial evidence that the suspect was, in fact, the
driver.' [Citation.]" (People v. Scott (1999) 76 Cal.App.4th 411, 418, italics omitted
(Scott).) The truck was driven in a manner that suggested some impairment on the part of
the driver and appellant was the only person linked to the truck who showed visible signs
of an alcohol-related impairment. Moreover, the Lucases' testimony supports the
inference that the driver of the truck caused Alvitre's injuries by failing to ensure he could
pass her at a safe distance, as required under section 21750. This "slight" evidence
suffices to establish the corpus delicti of the charged offense.
              The cases appellant cites in support of his contrary position are either
inapposite or are wrongly decided. In People v. Nelson (1983) 140 Cal.App.3d Supp. 1,
4, and People v. Moreno (1987) 188 Cal.App.3d 1179, 1190, the court found the corpus


        4 Appellant was prosecuted on the theory that he violated section 21750, which
provides that "[t]he driver of a vehicle overtaking another vehicle or a bicycle proceeding
in the same direction shall pass to the left at a safe distance without interfering with the
safe operation of the overtaken vehicle or bicycle."
       5 In arguing that the evidence was sufficient to show that appellant was the likely
driver of the truck, the People assert that "[a]fter appellant returned to the area, the
Lucases saw appellant attempt to approach the victim, and other people keeping appellant
away from the victim." The People offer no citation in support of this assertion, and our
review of the record discloses no such evidence.
                                              5
delicti of drunk driving had not been established because there was no evidence
eliminating other possible drivers. As we have noted, here there was evidence from
which the jury could infer that appellant, and not Paula, was driving the truck when the
accident occurred.
              In any event, other courts have recognized that Nelson and Moreno were
incorrectly decided to the extent they required the prosecution to affirmatively eliminate
all other possible drivers. (People v. McNorton (2001) 91 Cal.App.4th Supp. 1, 6; Scott,
supra, 76 Cal.App.4th at p. 418; People v. Komatsu (1989) 212 Cal.App.3d Supp. 1, 4-5.)
As these cases make clear, the prosecution was not required to present evidence
eliminating Paula as a possible driver of the truck. Rather, the prosecution merely had to
present "slight" and "minimal" evidence sufficient to give rise to an inference that an
intoxicated person was driving the truck when the accident occurred. (Jones, supra, 17
Cal.4th at pp. 301-302.) The evidence presented here is sufficient to make that showing.
It is irrelevant whether different inferences can also be drawn from the evidence, even if
they are more compelling. (Ibid.; People v. Martinez (2007) 156 Cal.App.4th 851, 856.)
Appellant's motion for acquittal was properly denied.
              The judgment is affirmed.
              NOT TO BE PUBLISHED.


                                          PERREN, J.

We concur:



              GILBERT, P. J.



              YEGAN, J.




                                             6
                                Kevin G. DeNoce, Judge

                            Superior Court County of Ventura

                           ______________________________


             Mark R. Feeser, under appointment by the Court of Appeal, for Appellant.
             Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Paul M.
Roadarmel, Jr., Supervising Deputy Attorney General, David A. Voet, Deputy Attorney
General, for Respondent.




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