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Name: People v. Powell
Case #: C057847
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 01/25/2010
Summary

Where the accusatory pleading fails to charge lesser included offenses and the court grants an acquittal pursuant to Penal Code section 1118.1, if a period of time has passed, such that defendant has achieved a “modicum of repose from prosecution,” the acquittal also applies to a lesser included offense. Appellant was charged with felony driving under the influence with injury. When the prosecution rested, appellant moved for acquittal (Pen. Code, sec. 1118.1) because injury had not been established. The court granted the motion, but in the same unbroken proceeding indicated that it would instruct on the lesser included offense of driving under the influence. Although a defendant may not be threatened with a lesser included offense after the greater has been unequivocally dismissed, here the court, by its stated intention to instruct on the lesser, limited the acquittal to the greater offense.
Vehicle Code section 20001 requires that the driver be driving when the accident occurs. In this case, a police officer observed a vehicle driven by appellant make a reckless turn and directed appellant to pull over. Appellant came to a stop, but as the officer, walking up to appellant’s vehicle, reached the rear passenger door, appellant took off at a high rate of speed. The officer followed him and after a distance, appellant’s vehicle came to a stop and appellant and the front seat passenger fled on foot. As the officer passed the stopped vehicle, the rear seat passenger got out and the officer’s vehicle struck her. In attempting to avoid the passenger, the officer lost control of his vehicle and hit a tree, injuring himself. The appellate court found that Vehicle Code section 20001 does not impose criminal liability when a driver fails to come back to an accident involving his car which occurred after the driver departed. Section 20001 criminalizes “hit and run,” not “run and get hit.” Accordingly, there was insufficient evidence to sustain the conviction for felony hit and run.