People v. O'Neal CA2/6

Filed 9/18/14 P. v. O’Neal CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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