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People v. Kearns12/22/2004
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Appellant Terry Allan Kearns was convicted by jury of driving under the influence of alcohol and driving with a blood alcohol content in excess of 0.08 percent (counts 2 and 3; §§ Veh. Code, § 23152, subds. (a) and (b)). He was also convicted of hit and run in violation of Vehicle Code section 20002, subdivision (a), a misdemeanor (count 5). As to counts 2 and 3, appellant admitted three prior convictions for driving under the influence (§§ 23550.5; 23175).
The court found appellant guilty of driving with a suspended license, a misdemeanor (count 4; § 14601.1. subd. (a)). It found true the allegation that appellant had suffered two prior convictions for driving with a suspended license under section 14601.5, subd. (a). All the counts occurred in a single incident, but only count 5 is the subject of this appeal.
Probation was denied and appellant was sentenced to state prison for the mid-term of two years on count 2. Count 3 was stayed under Penal Code section 654. On the misdemeanor counts, 4 and 5, appellant was sentenced to 30 days in county jail and given credit for 30 days actual time served.
Testimony of Jerrod Shelton
Jerrod Shelton was standing outside his house on Yosemite Avenue in Simi Valley. He heard squealing tires and saw a black Nissan 300 ZX swerve onto the sidewalk and hit a wall where it came to a stop. Only one person was in the car. The neighbors helped the driver push the car off the sidewalk. The driver tried to restart the engine but was unsuccessful and walked away. Shelton described the driver as a white male, approximately 6 feet tall and weighing 200 pounds. He had a long ponytail and his hair was shaved on the sides. There was a circular tattoo around his arm. In a line-up, Shelton later identified appellant as the driver.
Testimony of Ray Miner
Ray Miner was in his apartment when he heard a collision. He ran across Yosemite Avenue and saw the driver getting out of the car. The driver wore a ponytail, had a barbed-wire tattoo on his arm and smelled strongly of alcohol. Miner helped push the car off the sidewalk and later identified appellant in an in-field showup.
Testimony of Officer Hodgson
Officer David Hodgson responded to the scene. Hodgson and another officer searched the car and found it was registered to Jonathon Ridden on Yosemite Avenue. The officers went to the address and the door was opened by a woman who said Ridden was a roommate. Officer Hodgson saw a man crouched behind the door, whose hair was pulled back in a ponytail and the sides of his head were shaved. The officers ordered him outside. He was intoxicated and refused a field sobriety test. The officers took him to Ventura County Hospital for a forced blood draw.
Testimony of Officer Arabian
Officer Arabian inspected the accident scene. The curb was chipped in two places and grass next to the sidewalk was torn out. There was a black mark along the stucco wall where the car had come to rest. The front and rear axles of the car were damaged, the rims bent, the oil pan was punctured and there was fender and body damage. Arabian did not photograph this damage.
DISCUSSION
Appellant argues that there was insufficient evidence to support his hit and run conviction. He also claims the trial court commi
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