People v. Martinez CA5

Filed 9/21/15 P. v. Martinez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F068492 Plaintiff and Respondent, (Super. Ct. No. BF147536A) v.

NICOLAS BRIAN MARTINEZ, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. J. Eric Bradshaw, Judge. Meredith J. Watts, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Sarah J. Jacobs, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Levy, Acting P. J., Poochigian, J. and Peña, J.

Nicolas Brian Martinez was convicted of numerous charges that arose from two accidents he caused while driving with a blood-alcohol content of 0.28 percent. His only defense to the charges was a claim that he drove knowing he was intoxicated because of a legal necessity that excused his criminal conduct. The trial court refused to instruct the jury on the defense of necessity, concluding Martinez failed to present sufficient evidence to support the elements of the defense. Martinez argues the trial court erred. We find no error and affirm the judgment. FACTUAL AND PROCEDURAL SUMMARY The Information Martinez was charged with six counts and numerous enhancements as the result of two separate accidents that occurred when Martinez drove his vehicle with a blood- alcohol content of 0.28 percent. The first accident occurred when Martinez struck two pedestrians as he was leaving the parking lot of the nightclub (club) at which he had been drinking. The second accident occurred a few miles down the road after Martinez left the club’s parking lot. The charges related to the first accident were (1) driving under the influence of alcohol and causing injury to another person (Veh. Code, § 23153, subd. (a), count 1), (2) driving with a blood-alcohol content above 0.08 percent and causing injury to another person (id., § 23153, subd. (b), count 2), and (3) failing to stop at the scene of an injury accident (id., § 20001, subd. (b)(1), count 5). Counts 1 and 2 also alleged the following enhancements: (1) Martinez caused great bodily injury within the meaning of Penal Code section 12022.7; (2) Martinez caused injury to multiple victims in one accident within the meaning of Vehicle Code section 23558; and (3) Martinez had a blood-alcohol content above 0.15 percent at the time of the accident within the meaning of Vehicle Code section 23578.