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Filed 2/27/08 P. v. Askia CA2/2


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.




Plaintiff and Respondent,



Defendant and Appellant.
(Los Angeles County

Super. Ct. No. BA288505)

APPEAL from a judgment of the Superior Court of Los Angeles County. Hank M. Goldberg, Judge. Affirmed.

Derek K. Kowata, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Taylor Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.


Raheem Salih Askia appeals from the judgment entered upon his conviction by jury of driving under the influence causing injury (Veh. Code, § 23153, subd. (a), count 2)1 and leaving the scene of an accident (§ 20001, subd. (a), count 3).2 In connection with count 2, the jury found to be true the allegation that defendant caused injury to more than one victim (§ 23558). The trial court found to be true the allegation that defendant suffered one prior felony strike conviction within the meaning of Penal Code sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i) and five prior prison terms within the meaning of Penal Code section 667.5, subdivision (b). The trial court sentenced defendant to an aggregate state prison term of 13 years four months, consisting of the upper term of three years doubled on count 2, plus one year on that count for the multiple victim allegation, plus one-third the midterm doubled, or 16 months, on count 3, and one year for each of the five prior prison term enhancements. Defendant contends that (1) there is insufficient evidence to support his conviction of driving under the influence, which thereby violates his due process right under the Fourteenth Amendment to the United States Constitution to proof of each element beyond a reasonable doubt, (2) imposition of the upper term sentence on count 2 violated his rights under the Sixth and Fourteenth Amendments to a jury trial and due process, as set forth in Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856] (Cunningham), and (3) the abstract of judgment should be corrected to reflect the correct statute defendant was convicted of violating in count 2.

We affirm.


The prosecution’s evidence

The accident

We review the evidence in accordance with the usual rules on appeal. (See People v. Snow (2003) 30 Cal.4th 43, 66.) Just after midnight on August 11, 2005, Los Angeles Police Officers Egan Sheklow and his partner, Rick Rafter, were in full uniform, in a patrol car, in the Baldwin Village area. Officer Sheklow was driving east on Martin Luther King Boulevard at a speed of 40 to 45 miles per hour.

All of a sudden, a “dark-colored van” traveling westbound made a left hand turn, from other than the left-hand turn lane, in front of the patrol car, onto Hobart Boulevard. The police vehicle proceeding straight had the right-of-way. Officer Sheklow turned to the right and slammed on his brakes in an attempt to avert a collision. As the van passed the patrol car, Officer Sheklow saw that the driver was a “male-Black,” with long hair in “dreadlocks.” The patrol car drove up on the curb and hit a steel pole and a telephone booth. At trial, Officer Sheklow could not identify defendant as the driver, other than to say that his hair looked similar.

Officer Sheklow exited the patrol car, radioed for help and tried to assist Officer Rafter, who was stuck inside and said he could not move. Officer Sheklow saw the van slow down briefly on Hobart Boulevard and then speed away. He had seen a black Hummer limousine turn left onto Hobart before defendant turned, but the limousine did not cause the crash.

Officer Sheklow suffered bruises to his elbow, head, back and neck. He was treated at a hospital, released on pain killers and missed three days of work. Officer Rafter went to the hospital with bruised knees and ribs and also missed three days of work.

Luciano Aragon (Aragon) and his girlfriend, Karla Lopez (Lopez), were traveling south on Hobart Boulevard when they saw a van traveling “pretty fast” west on Martin Luther King Boulevard. It made a sudden left turn on Hobart Boulevard, cutting off the police car, causing it to swerve and hit a pole. The van slowed, the driver, an African-American man with long dreadlocks, looked at the police car and sped away. Before the van cut off the patrol car, Lopez had seen a limousine parking in a parking lot.

Apprehension of Defendant

Aragon checked the patrol car to see if anyone was hurt. Officer Rafter said he was “fine” and to “go get that motherfucker.” Aragon pursued the van, which was moving “very fast” as if it “was trying to get away.” The van stopped in the middle of the street on Normandie Avenue, where the driver exited and ran into a house. Lopez and Aragon wrote down the vehicle license number, returned to the accident scene and gave the information to the officers. Ten or 15 minutes later, Lopez and Aragon separately identified defendant as the driver at a field showup. They also later identified him in court.

Danny Reyes was in a car on Normandie Avenue when he saw a burgundy van speed by and park in front of him. The driver ran from the car, hid in bushes near a house, and then ran down an alley and out of sight. The driver had dreadlocks, was wearing a burgundy USC shirt and shorts, and was carrying a backpack with a patch on it. Reyes identified defendant as the driver at a field showup and in court.

Officer Matthew Fleming and his partner, Officer Cervantes, responded to the location of the van and found it parked in the middle of the street. Officer Fleming checked the van’s license plate number and found that it was stolen. After receiving a description of the suspect, he located defendant walking in the area, carrying a backpack containing burglar tools and a half-empty bottle of brandy.

He had a leaf and dirt on his shoulder, was sweating profusely and was out of breath “like he had been running.” Defendant’s eyes were bloodshot, and he smelled of alcohol.


Officer Peter Argueta, a traffic investigator and certified driving under the influence (D.U.I.) expert, testified that in determining whether an individual is under the influence of alcohol, he looks at the totality of circumstances, taking into account how the person was driving, physical signs of intoxication such as unsteady gait, demeanor, and red and watery eyes, and the odor of alcohol. Five field sobriety tests are generally used in the field to determine intoxication and are confirmed by a breath or blood test.

Officer Argueta met defendant at the police station an hour and 20 minutes after the accident. Defendant had red, watery eyes and emitted a strong smell of alcohol on his breath. He refused to submit to a field sobriety test because he said he was not driving the vehicle. Officer Argueta read to him the admonition stating that his refusal would be commented upon by the court, and the jury would be instructed that his refusal may show a consciousness of guilt.

After defendant refused the field sobriety tests, Officer Argueta did not ask him to submit to a chemical test because a refusal to take field sobriety tests includes a refusal for chemical tests. Based upon the totality of the circumstances, Officer Argueta opined that defendant was under the influence of alcohol at the time of the accident because of his physical appearance, the strong smell of alcohol, his refusal to submit to testing and the manner in which he drove the van. An illegal left turn tends to show alcohol intoxication because it reflects misjudgment of distance and speed.

The defense’s evidence

Defendant introduced evidence that he was not the driver of the van and that a limousine caused the accident. Gary Gather, who was on medication for paranoid schizophrenia which made him see and hear things, testified that he saw a limousine pull in front of the police car and cause it to crash. But he admitted on cross-examination that he “didn’t really see the limousine cause the accident, [he was] taking the psych medication and that caused [him] to see things. . . .”

Defendant called the limousine driver, Fernando Perez, who was driving west on Martin Luther King Boulevard immediately before the accident. He made a legal left turn on to Hobart Boulevard and then a right into a parking lot. He was entering the parking lot, halfway up the driveway, when he heard a car crash. He exited his car and saw that a patrol car had crashed.

Rosalind Traylor, defendant’s sister, lived a few blocks from the accident scene. She testified that defendant was at her house drinking brandy until midnight. When he left, he took the bottle with him.

Josef Maatuk was a defense accident reconstruction expert. He visited the accident scene four months after the accident and measured the width of the three eastbound lanes. Based upon skid mark measurements in the police report, he opined that the patrol car was traveling at approximately 52 miles per hour and the left turning vehicle was traveling no more than 10 miles per hour.




Defendant contends that there was insufficient evidence to support his conviction of driving under the influence, thereby depriving him of his due process right to proof of each element of the charge beyond a reasonable doubt. He argues that “the only evidence presented to support the fact that [he] was driving under the influence of alcohol at the time of the accident was by Officer Fleming, who detained [him] sometime after the accident, and Officer Argueta, who attempted to perform a field sobriety test approximately an hour and a half later, while [defendant] was detained at the police station.” This contention is without merit.

“In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.) We resolve all conflicts in the evidence and questions of credibility in favor of the verdict, and indulge every reasonable inference the jury could draw from the evidence. (People v. Autry (1995) 37 Cal.App.4th 351, 358.) Reversal on this ground is unwarranted unless ‘“upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’” (People v. Bolin, supra, 18 Cal.4th at p. 331.)

In order to prove a driving under the influence charge, the prosecution must show that the defendant (1) was driving a vehicle while under the influence of alcohol; (2) was concurrently doing an unlawful act or neglecting a legal duty; and (3) proximately caused injury to another person. (§ 23153, subd. (a); People v. Verlinde (2002) 100 Cal.App.4th 1146, 1159-1160.) It is the first element at issue here.

A person is under the influence of alcohol if he or she “‘“no longer has the ability to drive a vehicle with the caution characteristic of a sober person of ordinary prudence under the same or similar circumstances.”’” (Hamilton v. Gourley (2002) 103 Cal.App.4th 351, 360.) While we do not find the evidence that defendant was under the influence overwhelming, we nonetheless find it sufficient to support his conviction.

Defendant made a very dangerous and illegal maneuver, making a left turn in front of oncoming traffic, from a non-left turn lane. This reflected a deficient perception of speed and/or distance. Rather than stopping at the scene and providing assistance, as required by law, he left the scene as if “he was trying to get away.” This evidence alone is insufficient to support a finding that defendant was under the influence of alcohol, as it is also reasonably susceptible to the inference that a sober person simply used poor judgment. (See People v. Weathington (1991) 231 Cal.App.3d 69, 82, fn. 5 [approving CALJIC No. 16.832 which states that, “The manner in which a vehicle is being operated is not sufficient in itself to establish that the driver of the vehicle either is or is not under the influence of an alcoholic beverage”].) The jury was given CALJIC No.


But there were additional corroborating circumstances here. Defendant’s sister testified that he was at her house drinking brandy until midnight, minutes before the accident. When he left her house, he took a half-full bottle of brandy with him. When he was apprehended, and at the police station an hour and 20 minutes later, his eyes were red and watery and his breath emitted a strong smell of alcohol. Further, he refused to submit to a field sobriety test, which the jury was entitled to consider as evidence of his consciousness of guilt.



The jury convicted defendant of felony driving under the influence and hit and run. It found in aggravation that (1) his prior adult convictions and juvenile adjudications were numerous and of increasing seriousness, (2) he served prior prison terms, (3) he was on probation when he committed the current offenses, and (4) his prior performances on parole and probation were unsatisfactory.

The trial court sentenced defendant to an aggregate state prison term of 13 years four months calculated as follows: the upper term of three years for his conviction of felony drunk driving, doubled as a second strike, plus one year under section 23558, a consecutive term of one-third of the midterm or eight months, for felony hit and run, doubled as a second strike, plus one year for each of the five 1-year prison term priors.

Defendant contends that imposition of the upper term sentence on count 2 violated his Sixth and Fourteenth Amendment rights to a jury trial and due process, as set forth in Cunningham. He argues that factors in aggravation used to support an upper term sentence must be determined by a jury beyond a reasonable doubt. This contention is without merit.

In Blakely v. Washington (2004) 542 U.S. 296 (Blakely), the United States Supreme Court held that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum, that is “the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant,” must be determined by a jury and proved beyond a reasonable doubt. (Blakely, supra, at p. 303) Last year, in Cunningham, the United States Supreme Court held that California’s determinate sentencing law did not comply with this mandate insofar as it permitted imposition of an upper term sentence based upon aggravating factors not found by a jury beyond a reasonable doubt. (Cunningham, supra, 549 U.S. __ [127 S.Ct. at p. 871].)

In analyzing Cunningham, the California Supreme Court in People v. Black (2007) 41 Cal.4th 799 (Black) reasoned that “as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi[3] and its progeny, any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial.” (Black, supra, at p. 812.) “[I]f one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not ‘legally entitled’ to the middle term sentence, and the upper term sentence is the ‘statutory maximum.’” (Black, supra, at p. 813.)

For the reasons set forth in Black, we find no constitutional violation in the trial court’s imposition of the upper term on the driving under the influence count here. “The United States Supreme Court consistently has stated that the right to a jury trial does not apply to the fact of a prior conviction.” (Black, supra, 41 Cal.4th at p. 818; Blakely, supra, 542 U.S. at pp. 301, 303.) The prior conviction exception is not to be read too narrowly. (Black, supra, at p. 819.) The fact of prior conviction includes “other related issues that may be determined by examining the records of the prior convictions.” (Ibid.) This encompasses a finding that prior convictions are numerous and of increasing seriousness (id. at pp. 819-820), the precise finding of the trial court here. This single factor made defendant eligible for an upper term sentence, and the trial court was free to consider other factors in imposing an upper term sentence. (See Black, supra, at pp. 819-820.)4



Defendant was convicted of driving under the influence causing injury in violation of section 23153, subdivision (a). The abstract of judgment, however, reflects a conviction of section 10851, subdivision (a), “D.U.I. causing injury.”

Defendant contends that the trial court should be ordered to correct the abstract of judgment to reflect the correct statute. The People agree as do we.

Rendition of judgment is an oral pronouncement. (People v. Mesa (1975) 14 Cal.3d 466, 471.) Entry of judgment in the minutes is a clerical function. (Pen. Code. § 1207.) An abstract of judgment is not the judgment of conviction and cannot add to or modify the judgment it purports to summarize. (People v. Mesa, supra, at p. 471.) The oral pronouncement of judgment controls over the abstract of judgment. (People v. Crenshaw (1992) 9 Cal.App.4th 1403, 1416.) If a minute order or abstract of judgment fails to reflect the judgment pronounced by the trial court, the error is clerical and the record can be corrected at any time to make it reflect the true facts. (People v. Mitchell (2001) 26 Cal.4th 181, 185; People v. Mesa, supra, at p. 471; see also People v. Williams (1992) 10 Cal.App.4th 827, 830, fn. 3; People v. Jack (1989) 213 Cal.App.3d 913, 915-916.)


The judgment is affirmed. The trial court is directed to correct the abstract of judgment to reflect that defendant was convicted of section 23153, subdivision (a) in count 2.


____________________, J.


We concur:

_________________, P. J.


_________________, J.



1 All further statutory references are to the Vehicle Code unless otherwise indicated.

2 At the conclusion of the People’s case, defendant’s motion for acquittal under Penal Code section 1118.1 was granted as to count 1 for unlawful taking of a motor vehicle (§ 10851, subd. (a)).


3 Apprendi v. New Jersey (2000) 530 U.S. 466.


4 Because we conclude that imposing the upper term did not violate defendant’s rights to a jury trial and due process, we need not consider his claims regarding the proper disposition for such a violation.

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