People v. Bloom4/25/1983
COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION FIVE
Crim. No. 42990
1983.CA.40862 ; 190 Cal. Rptr. 857; 142 Cal. App. 3d 310
April 25, 1983
THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
WILLIAM BLOOM, DEFENDANT AND APPELLANT
Superior Court of Los Angeles County, No. A145393, Robert R. Devich, Judge.
Edward J. Roberts, under appointment by the Court of Appeal, for Defendant and Appellant.
John K. Van de Kamp, Attorney General, Daniel J. Kremer, Chief Assistant Attorney General, S. Clark Moore, Assistant Attorney General, Edward T. Fogel, Jr., and Pamela P. Cvitan, Deputy Attorneys General, for Plaintiff and Respondent.
Opinion by Hastings, J., with Stephens, Acting P. J., and Ashby, J., concurring.
Hastings
This case arose as the result of a two-car collision in which appellant, the driver of one car, was injured and Carrie Lee, the driver of the other car, was killed. In an information filed by the Los Angeles County District Attorney, appellant was charged in count I with driving while under the influence of alcohol and in so doing causing bodily injury and death to Carrie Lee (Veh. Code, § 23101, now § 23153), and in count II with vehicular manslaughter (Pen. Code, § 192, subd. 3(a)). Appellant's motion to suppress evidence (Pen. Code, § 1538.5) was denied. After a jury trial, appellant was found guilty on both counts. He was sentenced to state prison for the upper term of three years on each count, the sentences to run concurrently. The sentence on count I was stayed (Pen. Code, § 654). On appeal, he contends:
(1) The trial court erroneously denied the motion to suppress blood sample test results;
(2) The trial court erroneously refused certain jury instructions requested by the defense, thereby denying appellant his right to a fair trial;
(3) The probation report was based upon second-hand, and not "accurate and reliable" information; and
(4) The trial court misapplied California Rules of Court, rule 421 (a)(3), in imposing the upper term, because the victim was not "particularly vulnerable."
Facts
On June 15, 1980, at approximately 6 p.m., appellant, driving a blue Chevy Vega, was traveling west on Foothill Boulevard in Sunland, on the way to pick up his wife at her place of employment in Van Nuys. Carrie Lee, driving a brown Ford Pinto station wagon, was going eastbound on Foothill, on her way home from work. Greg Dinsmore, who was riding in the back of a Toyota pickup also westbound on Foothill, saw appellant's car traveling at approximately 50 miles per hour, whereas the rest of the traffic was going about 35 miles per hour. Appellant was traveling in the curb lane but swerved into the center lane to avoid a rear-end collision with the car in front of him. He went partially over the center divider strip (marked with yellow lines), swerved back into the center lane, and then swerved again over the center line and into the eastbound lane, striking Carrie Lee's vehicle head-on. According to Kenneth Thurman, who had been following appellant westbound on Foothill, appellant "completely lost total control of his car." According to Dinsmore, Lee tried to avoid the collision but was unable to do so. This was corrobora
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