Martinez

Frank Reynaldo Martinez appeals his conviction by jury of driving under the influence with a prior felony DUI conviction (Veh. Code, §§ 23550.5, 23152, subd. (a); count 1), driving with a blood-alcohol content of 0.08 percent or more with a prior felony DUI conviction (id., §§ 23550.5, 23152, subd. (b); count 2), two counts of driving under the influence with three or more prior DUI convictions (id., § 23550; counts 3 & 4), and his conviction by court trial of driving on a suspended license (id., § 14601.2, subd. (b); count 5). The trial court found true allegations in counts 1 through 4 that Martinez had served a prior prison term. (Pen. Code, § 667.5, subd. (b).)

The court sentenced Martinez to four years in state prison consisting of a three-year sentence for count 1 plus a consecutive one-year term for the prior prison term, concurrent four-year terms for counts 2 through 4, and a concurrent 365-day term for count 5, to be served in any penal institution.

Martinez contends that the prosecution did not establish the corpus delicti of the crime of driving under the influence, that the trial court had a sua sponte duty to instruct the jury on a lesser included offense…