People v. Macias CA2/4

Filed 12/4/15 P. v. Macias CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B258519

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. KA099046) v.

GIOVANNI GREGORIO MACIAS,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Douglas Sortino, Judge. Affirmed. Michelle T. Livecchi-Raufi, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerard A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and J. Michael Lehmann, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION Giovanni GregorioMacias appeals from a sentence of 10 years, eight months following his convictions for driving under the influence (DUI) causing injury and for driving with a blood alcohol level of 0.08 percent causing injury. He contends the trial court erred in not instructing the jury on the lesser included offenses of DUI without causing injury and driving with a blood alcohol level of 0.08 percent without causing injury. Appellant also challenges his sentence on various grounds. For the reasons explained below, we find no reversible error. Accordingly, we affirm the judgment.

STATEMENT OF THE CASE A jury found appellant guilty of driving under the influence causing injury 1 (Veh. Code, § 23153, subd. (a); count 1), and driving with a blood alcohol level of 0.08 percent or more, causing injury (§ 23153, subd. (b); count 2). It found true the allegation that appellant personally inflicted great bodily injury (GBI) (Pen. Code, § 12022.7, subd. (a)). Appellant admitted he had served a prior prison term (Pen. Code, § 667.5, subd. (b)), and that he had suffered a prior “strike,” a conviction for a serious or violent felony (§§ 667, subds. (a) & (b)(1), 1170.12, subds. (a)-(d)). The court sentenced appellant to the low term of 16 months on count 1, doubled for the prior strike, plus five years for the serious and violent felony allegation and three years for the GBI allegation. It imposed the same sentence on count 2, and stayed it pursuant to Penal Code section 654. Appellant filed a timely notice of appeal.