Full Opinion

Filed 10/27/26 P. v. Rodriguez CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE THE PEOPLE, B346212 Plaintiff and Respondent, (Los Angeles County Super. Ct. No. KA131272) v. JOSE RODRIGUEZ, Defendant and Appellant. APPEAL from a judgment of the Superior Court of Los Angeles County, Joan M. Chrostek, Judge. Affirmed. Phillip W. Gillet, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Kenneth C. Byrne, Supervising Deputy Attorney General, and Susan S. Kim, Deputy Attorney General, for Plaintiff and Respondent. A trial jury convicted appellant and defendant Jose Rodriguez (defendant) of driving under the influence (DUI) offenses at trial. There was no direct evidence that defendant drove the vehicle that caused the collision, and we are asked to decide whether the circumstantial evidence sufficed for the jury to find that defendant was the driver of the offending vehicle. I. BACKGROUND A. The Offense Conduct As Established by the Evidence at Trial On March 27, 2022, at approximately 9 p.m., Los Angeles County Sheriff’s Department Deputy Joseph Valencia (Valencia) responded to a traffic accident close to the City of Industry. He saw “vehicles that were obviously involved in a major accident as there was massive damage to the vehicles and the vehicles were left in the roadway.” It appeared that a Mercedes had rear ended a Honda stopped at a red light. Neither Deputy Valencia nor the Honda driver saw who was driving the Mercedes vehicle. In the Mercedes vehicle, which was still on the scene of the accident with no occupant, both the driver and passenger air bags had deployed. The Honda driver was transported to the hospital and sustained injuries to his knee, shoulder, neck, and left wrist. Deputy Valencia saw defendant at the “northeast corner” of the intersection where the accident occurred. There was a semi- trailer parking or refueling station near that intersection and defendant was standing “crouched down” among the parked trucks. When Deputy Valencia went to speak to defendant, defendant appeared “extremely intoxicated,” “was dissociated,” and was not “able to stand still.” Aside from Deputy Valencia, 2 Deputy Valencia’s partner, and defendant, there were no other people near the scene of the accident at that time. Deputy Valencia and a Walnut Sheriff’s deputy detained defendant pending a DUI investigation. Neither Deputy Valencia nor the Walnut deputy asked defendant if he was the driver of the Mercedes vehicle, and defendant did not tell them they had “the wrong person.” At about midnight, California Highway Patrol Officer Michael Dulong (Officer Dulong) arrived at the scene. Officer Dulong noticed defendant “had red, watery eyes and a little bit of a slurred speech.” Defendant admitted to Officer Dulong that “he was drinking beer all day, but he denied being the driver” of the Mercedes. A registration check, however, showed defendant was the owner of the Mercedes. Officer Dulong looked for “cameras that could have captured the collision” but found none. Officer Dulong noticed that defendant had an “abrasion over his left collarbone,” which he believed “indicated that he was seated in the driver’s seat where the seat belt goes over his left collarbone.” Defendant, however, told Officer Dulong that “he was seated in the right rear of [the Mercedes,] which would have the seat belt over his right side, not his left side.” After refusing to participate in a field sobriety test, defendant was arrested for DUI and transported to a hospital for a blood draw. The blood test revealed an alcohol concentration of 0.21 percent. B. The Charges, Verdict, and Sentencing The Los Angeles County District Attorney charged defendant with three DUI-related offenses: DUI causing injury 3 within 10 years of another DUI offense (Veh. Code,1 § 23153, subd. (a)) (count one), driving with a .08 blood alcohol level causing injury within 10 years of another DUI offense (§ 23153, subd. (b)) (count two), and driving with a suspended or revoked license for another DUI conviction (§ 14601.2, subd. (a)) (count three). In connection with count two, the information against defendant alleged he was subject to a sentencing enhancement for having a blood alcohol level of .20 or higher. The information further alleged an aggravating factor as to counts one and two: that the offenses involved great violence, great bodily harm, a threat of great bodily harm, and other acts disclosing a high degree of cruelty, viciousness, and callousness. (Cal. Rules of Court, rule 4.421(a)(1) (rule 4.421(a)(1)).) Defendant pled no contest to count three and the jury convicted defendant on the other two counts that went to trial. The jury also found true the allegation that defendant had a blood alcohol content of at least .20 or higher in connection with the count two offense. The trial court sentenced defendant to five years of formal probation with a condition that he serve 180 days in county jail. II. DISCUSSION Defendant’s challenge to the sufficiency of the evidence supporting his convictions at trial is meritless. The jury did not require direct evidence that he was the driver of the Mercedes (see, e.g., People v. Nguyen (2015) 61 Cal.4th 1015, 1055 [“‘circumstantial evidence is as sufficient as direct evidence to 1 Undesignated statutory references that follow are to the Vehicle Code. 4 support a conviction’”]) and there was ample circumstantial evidence to prove that element of the crime. Defendant’s separate challenge to the rule 4.421 aggravating circumstance fails for the most fundamental of reasons: the record does not establish that circumstance was found true by a factfinder—and there was no reason for it to have been adjudicated when the court imposed a probationary sentence. A. Sufficient Evidence Supports the Jury’s Finding that Defendant Was the Driver of the Mercedes A conviction for violating section 23153, subdivisions (a) and (b) requires proof that the defendant was driving the vehicle in question. (See, e.g., In re F.H. (2011) 192 Cal.App.4th 1465, 1469.) Defendant argues proof of that element was lacking. “‘“In reviewing a challenge to the sufficiency of the evidence, we do not determine the facts ourselves. Rather, we ‘examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—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.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] The same standard of review applies to cases in which the prosecution relies primarily on circumstantial evidence.”’” (People v. Ramirez (2022) 13 Cal.5th 997, 1117-1118.) There was ample circumstantial evidence at trial justifying the jury’s finding that defendant was the driver of the Mercedes. Defendant was the registered owner of the Mercedes; he was found in proximity to the vehicle shortly after the accident with 5 no other people around (other than law enforcement officers) (People v. Moreno (1987) 188 Cal.App.3d 1179, 1190 [“once other possible drivers have been eliminated from consideration, a suspect’s proximity to a vehicle thought to have been driven by a person under the influence of alcohol is evidence from which a reasonable inference can be drawn that the suspect was the driver”]); he suffered an abrasion on his left collarbone that an officer opined was caused by a driver’s side seatbelt (not a seatbelt in the rear passenger side of the vehicle, which is where defendant claimed to have been sitting); and he was “crouched down” among the trucks when first seen by Deputy Valencia, which was suggestive of consciousness of guilt. Defendant argues there is other circumstantial evidence that suggests he wasn’t the driver, including the deployment of two air bags during the collision, law enforcement’s purported inability to find the keys to the Mercedes after the accident, and his own denial to Officer Dulong that he was the driver. Even if defendant were right that other evidence would have justified a not guilty verdict, under the governing standard of review “we do not consider whether there is evidence from which the [jury] could have drawn a different conclusion but whether there is substantial evidence to support the conclusion that the [jury] did draw.” (In re M.R. (2017) 8 Cal.App.5th 101, 108; accord, Ramirez, supra, 13 Cal.5th at 1118 [“‘“‘[I]f the circumstances reasonably justify the jury’s findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding’”’”].) But there are problems with defendant’s arguments on their own terms too: there was no evidence at trial on the mechanics of air bag deployment (and whether this occurs only for occupied seats in a collision); Officer 6 Dulong testified only that he did not remember where the car keys were located, not that keys never were; and the jury was of course free to discredit defendant’s own self-serving denial of responsibility for the accident to a law enforcement officer investigating the crash. B. Defendant Challenges a Nonexistent Aggravating Factor Finding Without citation to the record, defendant’s opening brief argues “[t]he trial court applied the aggravating factor under Rule 4.421(a)(1), finding that the crime involved great bodily harm or acts disclosing a high degree of cruelty, viciousness, or callousness. This finding was unsupported by the evidence.” The argument is an odd one because, as the Attorney General observes, the record does not establish any such finding was ever made; defendant did waive a jury trial on the aggravating factor, but the trial court never made a finding one way or the other. And that was because it had no bearing on the sentence the court chose—it suspended imposition of sentence and sentenced defendant to probation (rather than a term of years on which an aggravating factor might affect the choice of a low, middle, or high term). Defendant’s challenge to a nonexistent finding obviously fails.2 2 The Attorney General states in his respondent’s brief that “if the trial court were to revoke [defendant’s] probation in the future . . . . any claim regarding the term selected would be ripe and could be challenged on appeal.” 7 DISPOSITION The judgment is affirmed. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS BAKER, J. We concur: HOFFSTADT, P. J. KIM (D.), J. 8