People v. Wulff CA4/2

INTRODUCTION

A jury convicted defendant and appellant Phillip D. Wulff of driving while under

the influence of alcohol (Veh. Code,1 § 23152, subd. (a), count 1) and driving with a 0.

percent or more blood-alcohol content (Veh. Code, § 23152, subd. (b), count 2). A trial

court sentenced him to the upper term of three years in state prison on count 1 and stayed

the sentence on count 2 under Penal Code section 654.

On appeal, defendant contends that the court erred by failing to give a unanimity

instruction sua sponte. We conclude that any failure to give a unanimity instruction was

harmless.

FACTUAL BACKGROUND

Prosecution Evidence

Around 3:30 p.m. on January 1, 2021, J.H. was driving his car and was almost hit

by a white work truck. He sped up to try to see who was driving, but the truck was

swerving a lot, so he slowed down and got behind it to avoid being hit. J.H. followed

about two car lengths behind the truck and saw it strike the curb on the right side of the

road and then swerve into the left-hand lane, almost hitting another car. He called 911 to

report the truck. J.H. continued to follow the truck and saw it bounce off the curb as the

road curved left,…