Filed 5/27/11
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F057633 & F059101
Plaintiff and Respondent,
(Super. Ct. No. F07906388)
v.
ROGER ISAAC GUZMAN,
OPINION
Defendant and Appellant.
APPEALS from a judgment of the Superior Court of Fresno County. Wayne R.
Ellison, Judge.
Christine Vento, under appointment by the Court of Appeal, for Defendant and
Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez,
Lloyd G. Carter, and Leanne Le Mon, Deputy Attorneys General, for Plaintiff and
Respondent.
-ooOoo-
*
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of parts II. and III. of the Discussion.
A jury convicted appellant Roger Isaac Guzman of violating Harbors and
Navigation Code sections 655, subdivision (a), 655.2, and 656.2.1 Guzman and Thomas
Christopher Kirby2 were the occupants of a motorboat driven by Guzman that struck and
severely injured an 11-year-old boy on Shaver Lake in 2006. They did not stop to render
assistance but instead continued on to the marina, where they later told deputies they had
not been involved in the accident and claimed they had been on the pontoon boat that
stopped and rendered assistance. Both Guzman and Kirby had been drinking alcoholic
beverages the day of the accident.
Guzman contends his constitutional right against self-incrimination was violated
prejudicially by the trial court‟s instruction to the jury on the section 656.2 offense, which
stated he was required to identify himself to law enforcement officers as the operator of
the motorboat that had struck the boy. Guzman argues the error requires reversal of his
conviction.
Guzman also claims his constitutional rights were violated when the prosecutor
misstated the law in closing argument in the trial by stating that Guzman‟s voluntary
intoxication could not be considered in determining whether Guzman knew or should
have known he had hit the child. Guzman contends the prosecutor‟s misstatement
requires reversal.
We conclude section 656.2 is analogous to Vehicle Code section 20003. Harbors
and Navigation Code section 656.2 does not make it a crime for an operator of a boat to
be involved in a boating accident; the gravamen of the criminal offense arises when the
operator fails to stop and render assistance or fails to identify himself as such to the
1All
further statutory references are to the Harbors and Navigation Code unless
otherwise stated.
2Kirby‟s
appeal is before this court in case No. F058793.
2.
victim and peace officers. We publish our discussion of this conclusion as there is no
published decision concerning the issue.
We further conclude the prosecutor did not commit prejudicial misconduct. The
trial court instructed the jury to consider voluntary intoxication in deciding whether
Guzman had knowledge that he had been involved in a collision.
Guzman also appealed from the restitution order, but failed to brief this issue, so
we will disregard any attack on the order.
We will affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
As the contentions made by Guzman are legal issues, we will leave out many
facts, but nothing significant.
On September 2, 2006, Lynn and Jeff McEntire went to Shaver Lake with their
two children and some family friends. The group traveled across the lake to a cove,
arriving about 11:30 a.m. Jeff and the others took personal watercraft out onto the lake
several times throughout the day.
Guzman, Kirby, and several friends, including the Peffer family, also were at
Shaver Lake that day at a cove near the McEntires. About 4:25 p.m. Guzman and Kirby
headed out from the cove in Guzman‟s white and yellow motorboat. Guzman was
driving, or operating, the boat; he was wearing a red shirt. Kirby was not wearing a shirt,
thus revealing a tattoo on his upper shoulder. There were no other yellow and white
boats in the area when Guzman and Kirby headed out.
About 4:30 p.m., the victim was on a kneeboard and being pulled by a personal
watercraft piloted by his father, Jeff. Jeff‟s passenger was acting as a spotter or flagman.
The victim was tiring and Jeff began heading back into the cove. As he was heading
back, Jeff saw a motorboat accelerating as it came out of the cove. The boat was
travelling between 35 and 40 miles per hour. The boat then made a sharp turn and
headed directly toward Jeff and the victim.
3.
Jeff stood up, shouted, and waved his arms in an attempt to get the attention of the
people on the motorboat. The motorboat continued on its path towards him and the
victim, never decreasing speed. The motorboat hit the victim; he was not moving. Jeff
jumped into the water to help his son and yelled for assistance. Jeff‟s friend, Ross Kelly,
came over to assist.
Three women, Rocio Pena, Rocio Alvarez, and Kathy Arroyo, helped get the
victim out of the water and into their small aluminum fishing boat. Kenneth and May
Peffer, who were on a large pontoon boat, saw Pena and the women yelling and waving
for help and went to the scene. The victim was transferred from the fishing boat to the
pontoon boat.
Kenneth and May estimated the victim was 100 to 150 feet from shore when he
was hit. Everyone assisting the victim was yelling to the people on shore to call 911.
Kenneth noted it would have been nearly impossible for someone to be in the area and
not notice the commotion at the site of the collision.
The victim was taken to Sierra Marina on the pontoon boat, with Jeff and another
man rendering first aid. From there, the victim was transferred to an ambulance for
transportation to Valley Children‟s Hospital.
Deputy Sheriffs William Heuer and Christopher Tullus were at the marina when
the pontoon boat arrived. Jeff described for the deputies the motorboat that had hit his
son. The motorboat was white on the bottom, with a yellow stripe on both sides, and had
a wakeboard tower with yellow speakers attached to the tower. Jeff saw two people on
the motorboat. The operator had long dark hair and was wearing a red shirt, and the
passenger had a circular tattoo on his right shoulder. Both Jeff and Kelly identified
Guzman‟s boat in a later photographic lineup as the boat that hit the victim.
According to Alvarez, who had been on the aluminum fishing boat, the collision
when the victim was hit produced an audible sound that could be heard clearly. The
collision caused the motorboat to fishtail. The motorboat continued on for a short way,
4.
then stopped. The passenger went to the back of the motorboat and lifted the motor. The
operator of the motorboat also came back to look. The passenger and operator talked to
each other while Pena, Alvarez, and Jeff were screaming at them to help the child. Pena
watched as the two men looked at where the child was in the water and then went to the
front of the boat and headed for Sierra Marina.
Heuer and Tullus went out in their marked patrol boat to look for the motorboat
that had hit the victim. As the deputies were leaving the marina, Heuer saw a boat in a
slip matching the description. As Heuer was checking the CF number (vessel registration
number) of the motorboat, Guzman and Kirby approached him and spontaneously stated
that the boat looked like the one that hit the boy, but that their boat had not hit the boy.
They told the deputies they had been part of the group on the pontoon boat that had
helped the child after the collision. The two men provided Heuer with their names, dates
of birth, and telephone numbers.
When the victim arrived at the hospital, he was bleeding and had brain matter
coming out of his forehead in the area between his eyes. He sustained fractures to the
back of his head, from his forehead to the bridge of his nose, across his nose, and internal
fractures to his skull. As a result of being hit by the motorboat, the victim suffered a
brain injury and lost vision in one eye. Dr. Peter Witt opined that the injuries were
consistent with being struck by a propeller.
On September 17, 2006, Guzman‟s boat was seized. The propeller was examined
by Harold Kindsvater, who had extensive experience manufacturing and repairing
propellers. The propeller attached to the motorboat had a bend in one blade; it would
have taken a tremendous amount of force to cause the bend. The damage could not have
come from hitting a rock or wood because there was no damage to the paint surface.
Kindsvater stated the shaft of the propeller also had a bend in it. Based on the bend in the
propeller blade and the bend in the shaft, Kindsvater opined that a person inside the boat
would have felt a jolt when the damage occurred.
5.
Guzman was interviewed by sheriff‟s detectives on September 17, 2006. Guzman
stated he was the only person who had driven his yellow and white boat that weekend.
He admitted owning a red shirt and keeping it in the boat, but claimed he did not wear the
shirt on September 2. He acknowledged drinking about six beers that day. Guzman
claimed the pontoon boat left the cove before he did. Guzman stated that even when the
bow of the boat is up, he can see in front of the boat. He stated it would not be possible
for him to have hit someone and not know it. He denied hitting anyone with the boat that
day.
Guzman was charged with violating sections 655, subdivision (a), using a boat in a
reckless or negligent manner so as to endanger the life, limb, or property of another
person, and 655.2, excessive speed by a boat in specified restricted areas. He also was
charged with violating section 656.2, which requires the operator of a boat to stop and
render assistance and provide identifying information when there has been an accident
causing injury. A jury found Guzman guilty of violating sections 655, subdivision (a)
and 655.2, but was unable to reach a verdict on the section 656.2 violation.
A second jury trial on the section 656.2 charge commenced February 23, 2009,
and on March 26 the jury found Guzman guilty. On April 24, the trial court sentenced
Guzman to a term of two years in state prison for violating section 656.2. Guzman
received a concurrent term of 365 days for the section 655, subdivision (a) and section
655.2 convictions. At the October 15, 2009, restitution hearing, Guzman was ordered to
pay $1,101,841.04 in restitution to the victim and his parents.
Guzman filed an appeal challenging his culpability for the accident in case No.
F057633. He filed a separate appeal challenging the restitution order in case No.
F059101. On Guzman‟s motion, this court ordered the appeals consolidated under case
No. F057633 and directed briefs be filed in the consolidated appeal.
6.
DISCUSSION
Guzman makes two contentions concerning the section 656.2 conviction. First, he
claims the jury instruction defining the section 656.2 offense violated his constitutional
rights because the written instruction stated the operator of a vessel is required to identify
himself as the operator of the vessel involved in the collision. Second, Guzman argues
the prosecutor misstated the law in closing argument and the misstatement violated his
constitutional rights.
Guzman did not challenge the restitution order in his briefs.
I.
Section 656.2 Instruction
There is no pattern instruction for the section 656.2 offense. The trial court
instructed the jury with a modified version of CALCRIM No. 2140, which is designed to
instruct on vehicular accidents. Guzman contends the modified instruction violated his
constitutional right against self-incrimination. We disagree.
Factual summary
The modified CALCRIM No. 2140 written instruction read as follows:
“The defendant is charged in Count One with failing to perform a
legal duty following a collision involving a vessel that caused injury to
another person in violation of Harbors and Navigation Code Section 656.2.
“To prove that the defendant is guilty of this crime, the People must
prove that:
“1. The defendant, while operating a vessel, was involved in a
collision;
“2. The collision caused injury to someone else;
“3. The defendant knew that he had been involved in a collision[;]
“4. The defendant knew another person was injured in the collision,
or knew from the nature of the collision that it was probable that
another person had been injured;
“AND
7.
“5. The defendant willfully failed to perform one or more of the
following duties;
“(a) To stop immediately at the scene of the collision;
“(b) To provide reasonable assistance to any person injured in
the collision;
“(c) To give to the person injured or the occupants of any
vessel involved in the collision or any peace officer at
the scene of the collision all of the following
information: His name and current residence address;
“AND
“The registration number of the vessel he was operating.
“Someone commits an act willfully when he does it willingly or on
purpose. It is not required that he intend to break the law, hurt someone
else, or gain any advantage.
“The duty to stop immediately means that the operator must stop his
vessel as soon as reasonably possible under the circumstances.
“To provide reasonable assistance means the operator must
determine what assistance, if any, the injured person needs and make a
reasonable effort to see that such assistance is provided, either by the
operator or someone else. Reasonable assistance includes transporting
anyone who has been injured for medical treatment, or arranging the
transportation for such treatment, if it is apparent that treatment is necessary
or if an injured person requests transportation. An operator is not required
to provide assistance that is unnecessary or that is already being provided
by someone else. However, the requirement that an operator provide
assistance is not excused merely because bystanders are on the scene or
could provide assistance.
“The operator of a vessel must perform the duties listed regardless of
who was injured and regardless of how or why the collision happened. It
does not matter if someone else caused the collision or if the collision was
unavoidable.
“When providing his name and address, the operator is required to
identify himself as the operator of a vessel involved in the collision.
8.
“You may not find the defendant guilty unless all of you agree that
the People have proved that the defendant failed to perform at least one of
the required duties. You must all agree on which duty the defendant failed
to perform.” (Italics added.)
Prior to instructing the jury, the trial court inquired if defense counsel had any
“objection to the proposed instructions in that final wording,” to which defense counsel
responded, “No.” The trial court and defense counsel discussed the modified CALCRIM
No. 2140 instruction, including specifically discussing the provision requiring the
operator of the vessel to identify himself as the operator. The trial court noted that
defense counsel had submitted a proposed version that included this provision twice; the
trial court listed the provision once.
Later, when the trial court verbally instructed the jury, the italicized portion of the
instruction was omitted. The trial court informed the jury it would receive a written copy
of all instructions given. The written version of the modified CALCRIM No. 2140
instruction included the language stating section 656.2 required the operator of the vessel
to identify himself as the operator of a vessel involved in a collision.
Analysis3
In determining whether disclosure of information threatens self-incrimination,
several factors are considered, including (1) whether the disclosure targets a highly
selected group inherently suspect of criminal activities, rather than the public at large,
and (2) whether the requirement involves an area permeated with criminal statutes rather
than an essentially regulatory area of inquiry. (California v. Byers (1971) 402 U.S. 424,
429 (Byers).)
In Byers, the United States Supreme Court upheld Vehicle Code section 20002,
which requires drivers of motor vehicles involved in accidents to stop at the scene of the
we resolve the merits of Guzman‟s argument adversely to Guzman, we will
not discuss the People‟s claim of invited error.
3As
9.
accident and provide their names and addresses. The United States Supreme Court
determined that the statute in question was “essentially regulatory, not criminal.” (Byers,
supra, 402 U.S. at p. 430.) The Byers court stressed that California law did not make it a
criminal offense to be “„involved in a vehicle accident.‟” (Id. at p. 431.) “Although
identity … may lead to inquiry that in turn leads to arrest and charge, those developments
depend on different factors and independent evidence.” (Id. at p. 434.)
Because there is no pattern instruction for section 656.2 offenses, the trial court
gave a modified version of CALCRIM No. 2140, which addresses various Vehicle Code
violations, including sections 20001, 20003, and 20004. The Bench Notes to CALCRIM
No. 2140 state that the paragraph requiring the driver to identify himself or herself as
such should be given “if there is evidence that the defendant stopped and identified
himself or herself but not in a way that made it apparent to the other parties that the
defendant was the driver.” (Judicial Council of Cal., Crim. Jury Instns. (2011) Bench
Notes to CALCRIM No. 2140, p. 173.)
This Bench Note to CALCRIM No. 2140 cites the case of People v. Kroncke
(1999) 70 Cal.App.4th 1535 (Kroncke) as authority for this language in the instruction.
In Kroncke, the defendant was driving his vehicle on the freeway when his passenger
suddenly jumped out of the moving vehicle, causing fatal injuries. The defendant
continued driving and got off at the next freeway exit. (Id. at p. 1539.) The defendant
returned to the scene of the accident at about the time the police arrived. (Id. at pp. 15391540.) The defendant told officers he was driving when he saw the victim‟s body lying
on the side of the road and that he did know how the victim had been injured. He gave
law enforcement his name and address. (Id. at p. 1540.) Several weeks after the
accident, the defendant contacted the officer in charge of the case and explained that he
had been driving his vehicle when the victim jumped out of the car. (Id. at p. 1541.) The
defendant was charged with violating Vehicle Code sections 20001 and 20003, the “hitand-run” statutes. (Kroncke, at p. 1538.)
10.
The jury in Kroncke was instructed, over defense objection, that Vehicle Code
sections 20001 and 20003 impose a duty on the driver of a vehicle involved in an
accident to disclose to the investigating officer that he or she was the driver of the
vehicle. (Kroncke, supra, 70 Cal.App.4th at p. 1543.) On appeal, the defendant asserted
that this violated his Fifth Amendment privilege against self-incrimination. (Kroncke, at
pp. 1548-1549.)
The appellate court in Kroncke, relying on Byers, held that the “privilege against
self-incrimination does not relieve a California driver of his duty to comply with the
reporting requirements of [Vehicle Code] sections 20001 and 20003, including his duty
to identify himself as the driver of a vehicle involved in the accident.” (Kroncke, supra,
70 Cal.App.4th at p. 1557.) This is so because the hit-and-run statutes essentially are
regulatory schemes that are not aimed at identifying criminal behavior. (Id. at p. 1549.)
Prior to Kroncke, this court, in People v. Monismith (1969) 1 Cal.App.3d 762, held
that a driver of a vehicle involved in an accident was under a duty to identify himself or
herself as the driver of the vehicle in order to comply with Vehicle Code section 20001.
(Monismith, at p. 766.) We concluded that providing information without identifying
one‟s self as the driver of the vehicle involved in an accident was insufficient to satisfy
the statute and that providing such information was “[o]ne of the duties that accompanies
the right and the privilege of driving a vehicle upon a public thoroughfare.” (Ibid.) We
rejected the defendant‟s claim that identifying himself as the driver infringed upon his
Fifth Amendment rights. (Monismith, at p. 767.)
Section 656.2 provides:
“In addition to the requirements of Section 656.1, the operator of any vessel
involved in an accident in the waters of this state who knows or has reason
to know that the accident resulted in injury to any person shall furnish his
or her name, address, and the registration number of the vessel, and the
name of the owner, to the person injured, or occupant of any other vessel
involved, or shall furnish that information to any peace officer at the scene
of the accident, and shall render to any injured person reasonable
11.
assistance, including transportation for medical treatment if required or
requested by the injured person, so far as the operator can do so without
serious danger to the vessel or passengers.”
Section 656.2 was enacted by Senate Bill No. 1509 during the 1985-1986 Regular
Session of the Legislature (Sen. Bill No. 1509). (Stats. 1986, ch. 877, § 4, p. 3030.)
Senate Bill No. 1509 was designed to bring the Harbors and Navigation Code provisions
regarding boating accidents into alignment with the Vehicle Code provisions on
automobile accidents. The legislative history for section 656.2 is replete with references
to this intent.
An Assembly Ways and Means Committee analysis stated that it would “require
boat operators at the scene of a boating accident to respond in a manner essentially the
same as if it were an auto accident and would impose criminal penalties for a violation of
these provisions.” (Assem. Com. on Ways and Means, Analysis of Sen. Bill No. 1509
(1985-1986 Reg. Sess.) as amended Aug. 11, 1986.)
An analysis by the Senate Committee on Judiciary specifically referenced the hitand-run provisions of the Vehicle Code and stated: “Generally, the penalties are modeled
after the „hit-and-run‟ penalties in the Vehicle Code.” (Sen. Com. on Judiciary, Analysis
of Sen. Bill No. 1509 (1985-1986 Reg. Sess.) as amended Feb. 26, 1986, p. 5.) A fact
sheet on Senate Bill No. 1509 also stated the rationale for the legislation as: “Existing
law in this area is brief and should be conformed to reporting requirements for accidents
involving motor vehicles.”
A Parks and Recreation Department analysis stated: “The bill would conform
legal responsibilities of operating a vessel with those of driving an automobile.” (Cal.
Dept. of Parks and Recreation, Analysis of Sen. Bill No. 1509 (1985-1986 Reg. Sess.) as
introduced, p. 2.)
The plain language of section 656.2 makes clear that it is the operator of a vessel
involved in an accident who is required to provide specified information to any person
injured in the accident or to law enforcement. Section 656, subdivisions (e) and (f)
12.
ensure that any information provided to law enforcement about the accident are without
prejudice to the person providing the information and cannot be “referred to in any way,
or be any evidence of due care of any party.” (Id., subd. (e).) No criminal liability arises
from complying with section 656.2. Criminal liability arises solely from the failure to
comply with the reporting requirements of section 656.2. (§ 668, subd. (c)(1).)
Guzman relies on the holding in People v. Bammes (1968) 265 Cal.App.2d 626,
635 to support his argument. Bammes held that an operator of a vessel involved in an
accident need not disclose that he was the operator. We disagree with that holding.
Bammes is an appellate court decision from the Third Appellate District that predates the
United States Supreme Court‟s decision in Byers and our own decision in Monismith.
Both Byers and Monismith held that a driver or operator must identify himself as such in
order to comply with the reporting statutes and that doing so did not infringe on a
person‟s Fifth Amendment rights.
We also reject Guzman‟s attempts to distinguish Byers and Kroncke. Guzman
emphasizes that Byers and Kroncke addressed the Vehicle Code, not the Harbors and
Navigation Code. Byers addressed a code provision that required reporting in accidents
involving property damage, not personal injury. The accident in Kroncke—a passenger
leaping from a car—could not have given rise to criminal liability on the part of the
driver. These distinctions are not relevant to the analysis of whether the reporting
requirements of the Harbors and Navigation Code are regulatory in nature and thus do not
implicate the Fifth Amendment privilege. The legislative history is overwhelming that
section 656.2 is designed as a regulatory measure, that it is modeled after the Vehicle
Code reporting provisions, and that making a report and providing the required
information imposes no criminal liability or consequences. As with the Vehicle Code
provisions, criminal consequences arise from failure to comply with the Harbors and
Navigation Code reporting provisions.
13.
Guzman‟s attempt to distinguish the Monismith case also is rejected. Guzman‟s
case is factually very similar to Monismith. As did the defendant in Monismith, Guzman
initially lied to law enforcement. (Monismith, supra, 1 Cal.App.3d at p. 767.) Although
Guzman consistently denied he was operating the vessel that struck the child, he also
affirmatively lied to law enforcement when he stated he had been on the pontoon boat
that stopped to render aid to the child. As did the defendant in Monismith, Guzman also
provided some information to law enforcement but withheld certain other information.
(Ibid.) As we said in Monismith:
“It is one thing to refuse to give information upon the ground of Fifth
Amendment privilege, and quite another to give partial information and
false information and, later, when caught in the toils of deception, to assert
immunity under the Fifth Amendment.” (Ibid.)
Conclusion
The gravamen of the offense of a vehicular hit and run is leaving the scene of an
accident without rendering aid or providing identifying information. The Vehicle Code
does not make it a crime to be involved in an accident. (People v. Escobar (1991) 235
Cal.App.3d 1504, 1509.) Senate Bill No. 1509 aligned the Harbors and Navigation Code
provisions on boating accidents to those of the Vehicle Code, including the hit-and-run
provisions.
Consistent with the holdings of Byers, Kroncke, and Monismith, we conclude that
Guzman‟s Fifth Amendment rights were not violated by section 656.2 because the
information required to be reported, including that one is the operator of the vessel
involved in the accident, is regulatory in nature and does not give rise to any criminal
liability. Criminal liability arises from failure to comply with the reporting requirements.
(§ 668, subd. (c)(1).)
14.
II.
Prejudicial Prosecutorial Misconduct*
During closing argument, the prosecutor argued that whether Guzman knew or
should have known he had been involved in a boating accident was to be determined by
application of a reasonable person standard. The prosecutor stated there was “no such
thing as a reasonable intoxicated” person standard; the standard was that of “simply a
reasonable person.” Guzman contends this is an incorrect statement of the law and the
comment violated his constitutional rights.
Guzman contends that the phrase “knows or has reason to know that the accident
resulted in injury to any person” (see § 656.2) does not refer to a reasonable man
standard. Instead, he asserts the standard is “what a reasonable person in the defendant‟s
subjective position would know.” Guzman claims his intoxication should have been
considered in determining whether he had actual or constructive knowledge that there had
been an accident leading to injury.
We need not resolve this issue because the jury was instructed to consider
voluntary intoxication and the prosecutor‟s comment was not prejudicial. The trial court
instructed the jury:
“You may consider evidence, if any, of the defendant‟s voluntary
intoxication only in a limited way. You may consider that evidence only in
deciding whether the defendant acted or failed to do an act with knowledge
that he had been involved in a collision and whether he had the motive to
commit the crime charged.”
If the jury followed the trial court‟s instructions, then it considered any evidence
of Guzman‟s intoxication in determining whether he had knowledge that he had been
involved in a collision. Absent some contrary indication in the record, and none appears
in the record of Guzman‟s case, we presume the jury followed the trial court‟s
instructions. (People v. Hardy (1992) 2 Cal.4th 86, 208.)
*
See footnote, ante, page 1.
15.
About the prosecutor‟s argument to the jury, we again presume the jury followed
the trial court‟s instructions and not the argument of counsel. “The court‟s instructions,
not the prosecution‟s argument, are determinative, for „We presume that jurors treat the
court‟s instructions as a statement of the law by a judge, and the prosecutor‟s comments
as words spoken by an advocate in an attempt to persuade.‟” (People v. Mayfield (1993)
5 Cal.4th 142, 179, quoting People v. Clair (1992) 2 Cal.4th 629, 663, fn. 8.) The jury in
Guzman‟s case was instructed that it must accept the law as stated by the court, and, “If
you believe that the attorneys‟ comments on the law conflict with my instructions, you
must follow my instructions.”
The prosecutor‟s one comment, even if erroneous, did not prejudice Guzman‟s
defense, as it was not predicated on his voluntary intoxication. He offered expert
testimony that his blood alcohol was zero at the time of the accident and maintained
(1) he was not intoxicated at the time of the accident, (2) his boat did not hit the victim,
and (3) he had no reason to flee the scene. Under these circumstances, one erroneous
comment by the prosecutor, which was corrected by the verbal and written instructions
given to the jury, was not prejudicial. (People v. Cook (2006) 39 Cal.4th 566, 608.)
III.
Restitution Order*
Although Guzman filed an appeal of the restitution order, which appeal was
consolidated with the appeal challenging the conviction under section 656.2, he failed to
brief the restitution issue. Claims that are perfunctorily asserted and insufficiently
developed need not be addressed by this court. (People v. Freeman (1994) 8 Cal.4th 450,
482, fn. 2.) Because Guzman failed to address the restitution order in his briefing, we
will affirm it without discussion.
*
See footnote, ante, page 1.
16.
DISPOSITION
The judgment is affirmed.
_____________________
CORNELL, J.
WE CONCUR:
_____________________
LEVY, Acting P.J.
_____________________
FRANSON, J.
17.
