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People v. Walters1/8/2003
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
A jury convicted defendant Robert William Walters of two counts of gross vehicular manslaughter while intoxicated and one count of driving under the influence at an unsafe speed, causing bodily injury to seven persons, two of whom were also the victims of the vehicular manslaughter counts. Defendant appeals, claiming (1) the conviction for driving under the influence as to the two manslaughter victims should be reversed because driving under the influence causing injury is a lesser included offense of gross vehicular manslaughter; (2) the prosecutor committed prejudicial misconduct; and (3) defendant suffered prejudicial ineffective assistance of counsel when his attorney failed to seek immunity for a potential witness.
Except to remand the case solely for resentencing, we affirm the judgment in all other respects.
PROCEDURAL HISTORY
An amended information charged defendant as follows:
Count one: Gross vehicular manslaughter while intoxicated, causing the death of Annie L. (Pen. Code, § 191.5, subd. (a)) (all subsequent references to sections are to the Penal Code unless noted otherwise);
Count two: Gross vehicular manslaughter while intoxicated, causing the death of Francisco Beltran-Carreno (§ 191.5, subd. (a));
Count three: Driving under the influence at an unsafe speed, causing bodily injury to seven persons other than himself, including Annie L. and Francisco Beltran-Carreno (Veh. Code, § 23153, subd. (a)).
As to count three, the information further alleged, as facts for enhancements of the sentence, defendant caused bodily injury to more than one victim within the meaning of Vehicle Code section 23558 (naming two persons other than the manslaughter victims), and personally inflicted great bodily injury upon five named persons, including Annie L. and Francisco Beltran-Carreno, within the meaning of section 12022.7, subdivision (a).
In addition, the information alleged defendant has served two prison terms within the meaning of section 667.5, subdivision (b).
On June 28, 2001, following trial, the jury found defendant guilty as charged and found all of the special allegations to be true. That same day, defendant admitted the truth of the prior prison term allegations.
On July 26, 2001, the trial court sentenced defendant to a prison term of 22 years. The court chose count three as the base term and imposed the upper term of three years. It then enhanced this term by fifteen years, three years for each of the five great bodily injury enhancements pursuant to section 12022.7, subdivision (a), plus two one- year enhancements under Vehicle Code section 23558. The court also imposed two prior prison term enhancements of one year each under section 667.5, subdivision (b). The court stayed enforcement of defendant's sentence on counts one and two under section 654.
Defendant timely appealed.
SUMMARY OF FACTS
On May 22, 2000, defendant, while on parole, was driving his employer 's tractor/trailer combination vehicle northbound on Interstate 5 in Sacramento County. At that time, defendant was under the influence of methamphetamine. Eyewitnesses observed defendant driving in a reckless manner.
As he drove north past Laguna Boulevard in excess of 82 miles per hour, defendant's vehicle struck th
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