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People v. Griffith5/12/2003
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 Patricia Diane Griffith of gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5; all further unspecified statutory references are to this code) and one count of driving while intoxicated, causing injury (Veh. Code, § 23153, subd. (a)). The jury also found true an allegation that she caused injury or death to more than one victim while driving (Veh. Code, § 23558).
For reasons set forth in this opinion, we conclude that the evidence does not support defendant's conviction of gross vehicular manslaughter while intoxicated because there was insufficient evidence of gross negligence. Exercising our power to reduce the degree of offense in an appropriate case, we shall reduce the conviction to the lesser-included crime of vehicular manslaughter while intoxicated, and remand for resentencing.
BACKGROUND
At 7 p.m., just after dark on March 26, 1999, Karl Blust was driving northbound on Hilltop Drive in Redding. He noticed a Honda or Toyota stopped ahead of him in the opposite direction, allowing pedestrians to cross the street in a crosswalk. Blust then saw a Jeep Wrangler drive through the crosswalk and strike two boys before skidding to a stop. Defendant, who had been driving the Jeep, got out; she was screaming and hysterical. The Jeep had killed one of the boys and had seriously injured the other.
Ann Syme-Brown was driving her Honda southbound in the right lane, headed in the same direction as the Jeep. She saw a group of children standing on the sidewalk, starting to edge into the street. Ms. Brown slowed, unsure if the kids were going to cross in front of her; when she realized they were "right out in front of my car," she abruptly slammed on her brakes and was barely able to avoid hitting them. She came to a stop a couple of inches past the white line of the crosswalk and told her son that if he ever did anything like that, she would kill him.
Bystanders observed that defendant's Jeep was traveling faster than the flow of traffic. A prosecution expert estimated defendant's speed at 42 miles per hour at the time of impact, in a 35-miles-per-hour zone. The doors of the Jeep were off, and it had no side-view mirror.
Officers Niver and Guterding arrived on the scene almost immediately after the accident. Defendant was "pretty upset." She told the officers she did not see the children, that she looked over her right shoulder intending to change lanes, and that when she looked back they were upon her.
Officer Niver smelled a moderate odor of alcohol on defendant, and she admitted that she drank a shot of tequila and a beer at a local bar. Niver therefore spent the next hour or so giving defendant a series of sobriety tests. Defendant performed acceptably on some of the tests; others indicated that her faculties were impaired by alcohol. A breath- alcohol test given one hour and 14 minutes after the accident yielded a blood-alcohol content (BAC) reading of .075 percent. A blood test administered after defendant's arrest at 8:55 p.m. yielded a BAC reading of .07 percent. The prosecution's criminalist estimated, based on hypothetical factors supported by the evidence, that defendant's BAC would have been about .10 to .11 percent at the time of the accident. At that level, a driver would experience " lowed reaction time, carelessness, poor judgment, loss of
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