Can a jury overturn a driving under the influence verdict?

Defendant contends that the driving under the influence instruction allowed the jury to convict him based on a legally incorrect theory i.e., that he was guilty based in part on the illegal act of committing a hit and run. Because the illegal act must have also caused injury to another person (Veh. Code, 23153, subd. (a)), and because the criminal act in a hit and run offense is the post-accident conduct, that is, fleeing from the scene (see People v. Martinez (2017) 2 Cal.5th 1093, 1102), defendant argues that his post-accident conduct could not have been the cause of an injury to another person. Defendant contends that the court accordingly misinstructed the jury on this point and that reversal is required because there is no basis to find that the jury's driving under the influence verdict was actually based on a valid legal theory.

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The Attorney General contends that the jury was properly instructed and that any error was harmless.