People v. Jimenez (11 Cal. App. 4th 1611, 1992)

Opinion

CAPACCIOLI, Acting P. J.

Defendant was convicted of violating his duty to stop and report an injury-producing accident (Veh. Code, § 20001, subd. (b)(1)), assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), exhibition of a deadly weapon (Pen. Code, § 417, subd. (a)(1)), possession of heroin (Health & Saf. Code, § 11350) and two counts of perjury (Pen. Code, § 118). The jury found that defendant had inflicted great bodily injury within the meaning of Penal Code section 12022.7 in connection with the assault count. He was sentenced to nine years and four months in state prison. On appeal, defendant asserts that (1) the court improperly excused a juror for cause, (2) the perjury instruction improperly removed the materiality issue from the jury, (3) defendant could not properly be convicted of two counts of perjury, (4) Penal Code section 654 precluded punishment for both counts of perjury, (5) the failure to stop and report conviction must be reversed because there was no evidence of an “accident,” (6) the court prejudicially erred by failing to instruct the jury on the definition of “accident” and (7) the court prejudicially erred by failing to give a special unanimity instruction. For the reasons expressed below, we modify and affirm the judgment.

Facts

Elizabeth L. met defendant when they both worked at Burger King in October 1989. Defendant gave her a ride home from work several times in an old brown wood-paneled station wagon in November and December 1989. On New Year’s Eve one of Elizabeth’s coworkers at Burger King had a party and Elizabeth went to the party with another Burger King employee. Defendant saw Elizabeth at the party and the two of them argued. The argument ended with defendant slapping Elizabeth across the face. Elizabeth quit working at Burger King shortly after the New Year’s Eve party and took a job as a bartender at a bar called “El Paso” in San Jose. A few days later defendant came into the bar and told Elizabeth that he was taking her home. Elizabeth refused and the bar’s bouncer intervened when defendant persisted. Defendant left the bar. On January 11, 1990, Elizabeth was tending bar at El Paso. Her shift ran from 7 p.m. to 2 a.m. Her sister Olivia was also there and Elizabeth had arranged for Olivia to take her home that evening. About 1 a.m. Elizabeth saw defendant in the bar. Defendant said that he was going to take her home. Elizabeth refused. Defendant persisted. Elizabeth told him that her sister was taking her home. Elizabeth stopped work early because she was nervous. Elizabeth, her sister Olivia and Olivia’s friend Raul left the bar at approximately 1:45 a.m. on January 12 and went out to Raul’s car. Raul’s car was parked across the street from the bar. Elizabeth got into the front passenger seat and Olivia got into the driver’s seat. Raul got into the back seat. As she was putting her seat belt on, Elizabeth saw defendant running across the street towards them. Defendant hit the windshield of Raul’s car with a tire iron and cracked it. He also hit and broke the front and back side windows on the driver’s side of the car. Olivia quickly started the car and drove away. As they were driving to Elizabeth’s residence, they felt something hit them from behind. Elizabeth unbuckled her seat belt and turned around so she could see what was behind them. She saw defendant behind them driving his station wagon with his lights off. Defendant hit their car with his car again. Elizabeth was thrown against the front dash and suffered a broken ankle and lacerations which required 25 stitches.

Defendant was charged by information with failure to stop and report (Veh. Code, § 20001, subd. (b)(1)), assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) and exhibition of a deadly weapon (Pen. Code, § 417, subd. (a)(1)). It was further alleged that he had inflicted great bodily injury on Elizabeth within the meaning of Penal Code section 12022.7 in the commission of the assault. Defendant was brought to trial. At this initial trial, defendant testified on his own behalf. He denied committing the offenses. He testified that (1) he had never driven a brown station wagon and (2) he had left San Jose for Mexico in late December 1989 and had not returned until March 29, 1990. The jury was unable to reach a unanimous verdict and a mistrial was declared.

Defendant was then charged by information with two counts of perjury (Pen. Code, § 118) for his testimony at the initial trial and the two informations were consolidated. At the subsequent jury trial defendant was convicted of all five counts and the allegation that he had caused great bodily injury was found true. Defendant pleaded guilty to an unrelated narcotics count. He was sentenced to nine years and four months in state prison.

Discussion

A. Excusal of Prospective Juror

The court conducted the voir dire of the prospective jurors. Prospective Juror Barreras told the court that she used to work with juvenile delinquents. She said: “I guess I have to say that looking at people’s background and what makes things happen, it is a very difficult thing for me to say whatever I do here will be proven to be completely, because it would be very hard for me to judge somebody and feel any doubt. If I felt any doubt, I would just have to be honest and say I will be as fair as I can and as honest as I can, but—” The following exchange then occurred. “Q [The Court]: You think that—[j[] A [Ms. Barreras]: I have so much background with people in jails, because I work with juvenile delinquents and—Q: So you are telling us as nicely as you can that you have a little bit of a prejudice, and prejudice is not necessarily a bad word, but it just means you are prejudging and somebody—[f] A: It is not a pre-judgment. I just feel like I cannot. I have to see that they are really guilty before I can. flU Q: You feel that you would have the district attorney what we call run an extra lap, that would be appropriate? A: Yes. [j[] Q: I appreciate your candor, but on the basis of your responses, I will excuse you for cause on this case. [][] Mr. Press [defense counsel]: I would object to Mrs. Barreras [being excused] for cause.[]ask to inquire further, if I may. [1] The Court: Well, Mrs. Barreras, you indicated to us that you feel that as a result of your background in social work, if I can generalize, that you doubt your ability to be totally fair and impartial in this case; is that what you are telling me? [It] Mrs. Barreras: What I am saying I don’t feel that I would be unfair. What I am saying is that it would take a lot to prove to me that somebody really has done something, because I could not be left with a doubt. [