Filed 4/15/14 P. v. Fujita 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION FOUR




THE PEOPLE,                                                          B246069

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA381758)
         v.

MASAYUKI FUJITA,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County, Laura
Priver, Judge. Affirmed.
         Bruce Zucker for Defendant and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Linda C. Johnson and Elaine F.
Tumonis, Deputy Attorneys General, for Plaintiff and Respondent.
       Masayuki Fujita appeals from his convictions of driving under the influence with
injury and driving with a blood alcohol level of .08 or above with injury, in violation of
Vehicle Code section 23153, subdivisions (a) and (b)1. He challenges the sufficiency of
the evidence to establish that he failed to exercise due care while driving, an element of
the offenses. He also argues the trial court erred in refusing his special instructions.
       Substantial evidence supports the convictions. No instructional error is
demonstrated. We affirm the judgment.


                      FACTUAL AND PROCEDURAL SUMMARY
       Noah Wood was at the intersection of Sunset Boulevard and Fountain Avenue at
12:50 in the morning of March 6, 2011. He described the intersection as well lit. He was
looking across the intersection to a parking lot where a friend was going to park to meet
him. He saw two men standing in front of and to the left of him waiting for the traffic
light to change. When it changed, the two men “waited until it started to tick and
indicated it was okay for them to cross at which point they began to proceed to cross
[Sunset].” They were walking at a normal pace, not running. One man, identified, later
as Keith Elmore, was slightly ahead of the other, Tyler Wasson. Wood said the signal
countdown at this crosswalk was about 35 seconds because it is a wide intersection.
       As the men were crossing, Wood saw a black SUV approach the intersection from
Fountain. It entered the intersection to make a left turn onto Sunset to drive toward
downtown Los Angeles. The vehicle paused in the intersection for seven to eight
seconds, as though waiting for the pedestrians to cross. It then moved forward. Elmore
and Wasson appeared to be talking as they crossed, which gave Wood the impression that
Elmore was not watching the SUV. While in the crosswalk, Wasson saw the SUV start
to cross and tapped Elmore on the shoulder and said “A car.” Elmore looked to his left
and saw a black SUV coming. He tried to jump out of the way. As he did so, he touched




       1   Statutory references are to the Vehicle Code, unless otherwise indicated.

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the side of the SUV, slipped, and fell down. According to Elmore, the SUV ran over his
leg.
       Wood was watching the pedestrian signal at the crosswalk. It was a large sign
which counted down the seconds remaining for a pedestrian to cross. When the collision
occurred, 19 seconds remained on the countdown. When hit, Elmore was in the
crosswalk, in the middle of the intersection. According to Wood, the tires did not go over
Elmore’s leg. Instead the leg was struck by the bumper. Wood heard Elmore’s bones
break and shatter from his position on the sidewalk.
       The SUV came to a stop. Elmore was lying in the street screaming. Bystanders
went to the SUV to ensure the driver would not pull away before the police were notified.
Another group of people were tending to Elmore, moving him out of the street so he
would not be struck again. Eventually the driver of the SUV and two other males got out
of the vehicle and stood on the sidewalk. Wood identified appellant as the driver.
       Paramedics and police officers responded to the scene. Elmore was treated for an
open fracture of the lower left leg, with both the tibia and fibula protruding through his
skin. The injuries were consistent with having been hit by a car. He had consumed
alcohol but according to the emergency room physician who treated him, was not drunk.
The physician said Elmore was able to conduct a conversation. The emergency room
doctor opined that Elmore’s leg injury was more consistent with being hit by the bumper
of a vehicle than being run over by a tire. Surgery was performed on Elmore’s leg. He
remained hospitalized for four days. He used crutches for three weeks and wore a brace
for more than four months. Scars remained on his leg.
       Police officers who responded to the scene noticed objective signs that appellant
was intoxicated. Appellant admitted he had been driving. He failed to successfully
complete field sobriety tests. A portable breathalyzer screening performed on appellant
at the scene produced a blood alcohol level of .126. at 1:45 a.m. Appellant was arrested.
At the police station, a second breathalyzer test was performed, which indicated a blood
alcohol level of .12 at that time. Appellant was charged with one count of driving under
the influence with injury in violation of section 23153, subdivision (a). At the close of

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the evidence, the information was amended to add count 2, driving with a blood alcohol
level of .08 or above, with injury, in violation of section 23153, subdivision (b). As to
each offense it was alleged that appellant inflicted great bodily injury within the meaning
of Penal Code section 12022.7, subdivision (a).
       In his defense, appellant presented the testimony of Dr. Ralph Haber, an expert on
eyewitness accuracy relevant to traffic accidents.
       Appellant was found guilty as charged and the special allegations were found to be
true. He was sentenced to the high term of three years on count 1, violation of section
23153, subdivision (a). Punishment on count two was stayed pursuant to Penal Code
section 654. Appellant was ordered to pay fines, fees and assessments. He was awarded
35 days of presentence custody credit. He filed a timely appeal.


                                      DISCUSSION
                                             I
       Appellant was convicted of violating section 23153, subdivisions (a) and (b). At
the time of this offense, section 23153, subdivision (a) provided: “It is unlawful for any
person, while under the influence of any alcoholic beverage or drug, or under the
combined influence of any alcoholic beverage and drug, 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.” Section 23153, subdivision (b) provided in pertinent part: “It is
unlawful for any 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, 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.”
       “[Section 23153 s]ubdivisions (a) and (b) have essentially four elements: (1)
excessive alcohol intake, as differently defined by each subdivision; (2) driving a vehicle;
(3) committing an act which violates the law or neglecting a duty imposed by law; and
(4) causing bodily injury to another person.” (In re F.H. (2011) 192 Cal.App.4th 1465,

                                             4
1469.) Appellant contests the sufficiency of the evidence of the third element. He argues
there was insufficient evidence that he failed to exercise ordinary care and maintain
control of his vehicle. He concedes the evidence was sufficient to prove the other
elements.
       When an appellant challenges the sufficiency of the evidence to support a
conviction, “‘we review the whole record to determine whether any rational trier of fact
could have found the essential elements of the crime . . . beyond a reasonable doubt.
[Citation.]’” (People v. Manibusan (2013) 58 Cal.4th 40, 87.) “‘[W]e review the
evidence in the light most favorable to the prosecution and presume in support of the
judgment the existence of every fact the jury could reasonably have deduced from the
evidence. [Citation.]’” (Ibid.) “‘A reversal for insufficient evidence “is unwarranted
unless it appears ‘that upon no hypothesis whatever is there sufficient substantial
evidence to support’” the jury’s verdict. [Citation.]’” (Ibid, quoting People v. Zamudio
(2008) 43 Cal.4th 327, 357, italics omitted.)
       The prosecution’s theory was not based on appellant’s commission of a specific
unlawful act, but rather that he neglected the duty imposed by law to exercise ordinary
care to avoid an accident and to maintain proper control of his vehicle. The jury was so
instructed in the language of CALCRIM Nos. 2100 and 2101. These instructions also
define ordinary care.
       We agree with appellant that the facts that he was intoxicated and struck Elmore
are not sufficient by themselves to establish that he failed to exercise ordinary care and
maintain control of his vehicle. The evidence also must prove that he did something a
reasonably careful person would not have done or failed to do something a reasonable
person would have done in addition to driving under the influence. (People v. Minor
(1994) 28 Cal.App.4th 431, 437–438.) In People v. Minor, the prosecution was based on
the defendant’s violation of three Vehicle Code sections alleged in the information, rather
than on the negligence theory relied upon by the prosecutor here. (Id. at p. 438.) The
instructions on the section 23153 offenses did not include the definitions of the applicable
Vehicle Code sections. The court concluded: “In circumstances such as this, where the

                                                5
prosecution is relying on specific code violations . . . the trial court must make it clear to
the jurors that they are required to find the code section violations for both offenses.” (Id.
at pp. 438–439.)
       Appellant claims there is no evidence that he failed to exercise due care: “At
some point, appellant then made his left turn at which time he struck Elmore. However,
there are no details about the actual collision that suggest that appellant had failed to
exercise due care. The only fact is that appellant struck Elmore.” Appellant goes on to
cite testimony by his expert witness that the cross-walk was not well lit and testimony
that Elmore was not paying attention to the turning cars. He contends there was no
evidence of other violations of due care such as speeding or running a red light.
       Respondent argues that it is undisputed that appellant failed to make sure the
crosswalk was free of pedestrians before driving through it, and failed to yield the right of
way to Elmore. Even though appellant had stopped his car in the intersection as though
waiting for pedestrians to cross, he resumed driving before Wasson and Elmore cleared
the crosswalk, hitting Elmore. Section 21950, subdivision (a) imposes a duty on a driver
to yield to a pedestrian: “The driver of a vehicle shall yield the right-of-way to a
pedestrian crossing the roadway within any marked crosswalk or within any unmarked
crosswalk at an intersection . . . .” Subdivision (c) of the same statute emphasizes: “The
driver of a vehicle approaching a pedestrian within any marked or unmarked crosswalk
shall exercise all due care and reduce the speed of the vehicle or take any other action
relating to the operation of the vehicle as necessary to safeguard the safety of the
pedestrian.” (Italics added.)
       Appellant argues that Elmore was responsible because he was not paying attention
to the SUV, although he concedes: “This of course is not to say that the onus is on
pedestrians to get out of the way of turning cars.”
       Subdivision (b) of section 21950 provides that the statute does “not relieve a
pedestrian from the duty of using due care for his or her own safety.” It states: “No
pedestrian may suddenly leave the curb or other place of safety and walk or run into the
path of a vehicle that is so close as to constitute an immediate hazard. No pedestrian may

                                               6
unnecessarily stop or delay traffic while in a marked or unmarked crosswalk.” But the
Legislature made it clear that the duty imposed on the driver of a vehicle is not excused
by a pedestrian’s violation of section 21950, subdivision (b). Subdivision (d) of section
21950 states: “Subdivision (b) does not relieve a driver of a vehicle from the duty of
exercising due care for the safety of any pedestrian within any marked crosswalk or
within any unmarked crosswalk at an intersection.”
       Contrary to appellant’s arguments, there is substantial evidence that he failed to
exercise due care, satisfying the third element of the section 23153 violations. He drove
into the crosswalk and hit Elmore. A reasonably careful person would not have done so.
A reasonably careful driver would have seen Elmore, applied the brakes, and avoided the
accident. The evidence supports appellant’s conviction of violating both subdivisions (a)
and (b).
                                                II
       Appellant argues the trial court erred by refusing his special jury instructions
Nos. 1 and 3 on the third element of section 23153 as well as on the statute prohibiting a
pedestrian from entering a cross-walk when the upraised hand signal is flashing or steady.
       “Pinpoint instructions ‘relate particular facts to a legal issue in the case or
“pinpoint” the crux of a defendant’s case, such as mistaken identification or alibi.
[Citation.] They are required to be given upon request when there is evidence supportive
of the theory . . . .’ [Citation.] For such a state law error, reversal is required only if ‘it is
reasonably probable that a result more favorable to the appealing party would have been
reached in the absence of the error.’ (People v. Watson (1956) 46 Cal.2d 818, 836.)”
(People v. Wilkins (2013) 56 Cal.4th 333, 348–349.)
       But a special instruction offered by the defense may be rejected as duplicative
where the standard instructions given adequately instruct the jury on the issue. (People v.
Thomas (2012) 53 Cal.4th 771, 825, 828; People v. Dement (2011) 53 Cal.4th 1, 57–58
[no error in refusing proposed instruction where existing instructions adequately covered
issue].)



                                                7
A. Third Element
       The court gave the standard instructions on the section 23153 violations.
CALCRIM No. 2100 instructed the jury on the elements of section 23153, subdivision
(a). As to the third element, it stated: “3. While driving a vehicle under the influence,
the defendant also committed an illegal act or neglected to perform a legal duty . . . .” It
continued: “The People also allege that the defendant failed to perform the following
legal duty while driving the vehicle: the duty to exercise ordinary care at all times and to
maintain proper control of the vehicle. [¶] You may not find the defendant guilty unless
all of you agree that the People have proved that the defendant committed at least one
illegal act or failed to perform at least one duty. [¶] But you do not have to all agree on
which act the defendant committed or duty the defendant failed to perform.” The
instruction defined ordinary care: “Using ordinary care means using reasonable care to
prevent reasonably foreseeable harm to someone else. A person fails to exercise ordinary
care if he or she does something that a reasonably careful person would not do in the
same situation or fails to do something that a reasonably careful person would do in the
same situation.” The identical language also was included in CALCRIM No. 2101,
which defined the elements of a violation of section 23153, subdivision (b).
       The court rejected appellant’s proposed special instruction which would have
modified the language on the third element. We have italicized the addition suggested by
appellant: “While driving a vehicle under the influence, the defendant also concurrently
committed an illegal act or failed to perform a legal duty in addition to and independent
from the act of driving under the influence or causing bodily injury to another
person . . . . [¶] You may not find the defendant guilty unless all of you agree that the
People have proved that the defendant committed at least one illegal act or failed to
perform at least one duty—other than drinking driving or causing injury to another
person.” (Italics added.)
       The trial court did not err in refusing this instruction. It was duplicative of
CALCRIM No. 2100. CALCRIM No. 2100 clearly informed the jury that “while driving
a vehicle under the influence” it had to find “the defendant also committed an illegal act

                                              8
or neglected to perform a legal duty.” (Italics added.) (People v. Burney (2009)
47 Cal.4th 203, 246 [trial court properly refused duplicative proposed instruction that
“would not have provided the jury with anything beyond what it otherwise learned” from
pattern jury instructions].) The standard instructions made it clear that more than drunk
driving or injury to the victim is required to prove the charged offenses. They also
clearly defined the ordinary care standard on which the prosecution relied.
B. Pedestrian Duty
       Appellant argues the trial court erred in refusing his special instruction No. 3,
taken from section 21456, subdivision (b), which provides: “No pedestrian shall start to
cross the roadway in the direction of a pedestrian control signal indicating a flashing or
steady ‘Upraised Hand’, but any pedestrian who has partially completed crossing shall
proceed to a sidewalk or safety zone or otherwise leave the roadway while the ‘WAIT’ or
‘DON’T WALK’ or approved ‘Upraised Hand’ symbol is showing.” His theory is that
Elmore illegally crossed the street in violation of the flashing pedestrian signal and that
this was an intervening cause that broke the chain of causation.
       This theory is based on the premise that Elmore began crossing the street illegally
after the pedestrian crossing light had started flashing. Elmore testified that the
countdown on the pedestrian control light already had started when he stepped off the
curb. Appellant cites the testimony of Dr. Ralph Haber, who testified about the accuracy
of eyewitness identification in the context of traffic accidents. Dr. Haber visited the
scene of the accident and examined the pedestrian traffic control lights at each crosswalk.
He testified the intersection was not well-lit. Dr. Haber described the pedestrian control
signals on the crosswalk used by Elmore: once the silhouette of a man in white comes on
indicating a pedestrian may cross, it stays on for 6 seconds, then a countdown begins
during which the light flashes for 25 seconds. Then a solid red hand appears with the text
“Don’t Cross.” An additional 5 seconds is provided by the yellow traffic light preventing
cars from entering the intersection. The crosswalk Elmore was in was 75 feet from curb
to curb.



                                              9
       The instruction refused by the court read: “Prohibition Against Entering
Crosswalk While Facing Flashing or Steady Upraised Hand [¶] No pedestrian shall
start to cross the roadway in the direction of a pedestrian control signal indicating a
flashing or steady ‘Upraised Hand’, but any pedestrian who has partially completed
crossing shall proceed to a sidewalk or safety zone or otherwise leave the roadway while
the ‘WAIT’ or ‘DON’T WALK’ or approved ‘Upraised Hand’ symbol is showing.” The
trial court reasoned that this instruction would confuse the jury because it did not state a
defense to the charges “because under no circumstances can an individual be allowed to
run over a pedestrian.” The court also cited the testimony that Elmore stepped off the
curb once the signal “turned okay to walk.” The court observed that there was no
evidence that Elmore was not appropriately in the crosswalk.
       We find no error. First, we find no evidence that Elmore was illegally in the
crosswalk, the predicate for the requested pinpoint instruction. (People v. Wilkins, supra,
56 Cal.4th at pp. 348–349.) In addition to the evidence mentioned by the trial court,
witness Wood testified that when the light changed, Elmore and Wasson “waited until it
started to tick and indicated it was okay for them to cross at which point they began to
proceed to cross.”
       In any case, the court was correct in refusing the instruction. It was likely to have
confused the jury. It is true, as appellant argues, that “an unforeseeable intervening
cause, an extraordinary and abnormal occurrence” constitutes a superseding cause which
breaks the chain of causation. (People v. Armitage (1987) 194 Cal.App.3d 405, 420–421;
People v. Autry (1995) 37 Cal.App.4th 351, 361.) There was no evidence of such an
extraordinary or abnormal intervening cause in this case. Elmore’s conduct was
foreseeable. In addition, as we have discussed, the driver of a vehicle is not relieved
from the duty of exercising due care for the safety of any pedestrian within any marked
crosswalk or any unmarked crosswalk at an intersection. No exception to this rule is
provided based on the pedestrian light control law stated in section 21456.




                                             10
C. Ineffective Assistance
       Appellant argues his trial counsel was ineffective in failing to request an additional
pinpoint instruction on his theory that an intentional but unforeseeable act by Elmore
could have broken the chain of causation between appellant’s drunk driving and the
injury to Elmore. This is based on the theory that, contrary to California law, Elmore did
not begin to cross the street until after the walk sign began flashing.
       We have concluded that the trial court did not err in refusing the instruction on this
theory. “Defendant’s claim of ineffective assistance of counsel . . . must fail because his
attorney cannot be considered ineffective for refusing to investigate and present a defense
that, as a matter of law, was bound to fail.” (People v. Marlin (2004) 124 Cal.App.4th
559, 570.)


                                      DISPOSITION
       The judgment of conviction is confirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                  EPSTEIN, P. J.
We concur:



       WILLHITE, J.



       MANELLA, J.




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