People v. Fujita CA2/4

Filed 4/15/14 P. v. Fujita CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, 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