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People v. Karapetian6/5/2003
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 977.
Grant Karapetian appeals from the judgment entered after conviction by a jury of vehicular manslaughter while intoxicated (Pen. Code, § 192, subd. (c)(3)) and two counts of felony child endangerment. (§ 273a, subd. (a).) The jury found true an allegation that, in the commission of vehicular manslaughter while intoxicated, appellant had caused bodily injury to two children who were passengers in his vehicle. (Veh. Code, § 23558.) Appellant was sentenced to prison for six years: four years for one count of felony child endangerment (the base term); plus one year, four months for the other count; plus eight months for vehicular manslaughter while intoxicated.
Appellant contends that the trial court erred in failing to instruct sua sponte on the lesser included offense of misdemeanor child endangerment. He also contends that his six-year sentence constitutes cruel and unusual punishment in violation of the federal and state constitutions. We affirm.
Facts
Lavera Amakaeze was driving on the freeway in the number two lane at a speed of between 60 and 65 miles per hour. She saw a silver truck "coming up fast" behind her and "going from lane to lane." Appellant was the driver of the truck. (RT 655-656) While traveling in the fast lane, appellant passed Amakaeze. After passing her, he was "weaving in and out of traffic" and was tailgating vehicles. It appeared to Amakaeze that he was trying "to get around the cars that were going slower than he was." Other witnesses estimated that appellant was traveling at more than 70 miles per hour.
A red truck was parked on the center median strip. Appellant's vehicle "drifted" from the fast lane into the median strip and struck the red truck, which burst into flames. A passenger inside the red truck died at the scene.
Two children were "strapped into car seats" in the back seat of appellant's truck. They were approximately two to three years old. The children were crying "hysterically." They had scratches and blood on their faces.
A police officer approached appellant. The officer smelled a "real strong odor of an alcoholic beverage" and noticed that appellant's eyes "were bloodshot, glassy." A blood sample taken from appellant had a blood-alcohol level of .16 percent. At this level, a criminalist testified, "a person is definitely impaired to drive a car safely." Lesser Included Offense Of Misdemeanor Child Endangerment
Appellant was convicted of felony child endangerment, which encompasses acts committed "under circumstances or conditions likely to produce great bodily harm or death . . . ." (§ 273a, subd. (a).) Appellant contends that the trial court erred in failing to instruct sua sponte on the lesser included offense of misdemeanor child endangerment, which encompasses acts committed "under circumstances or conditions other than those likely to produce great bodily harm or death . . . ." (§ 273a, subd. (b).)
A trial court is not required to instruct sua sponte on all lesser included offenses. " he existence of 'any evidence, no matter how weak' will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is 'substantial enough to merit consideration' by the jury. [Citations.] 'Substantial evidence' in this context is ' "evidence fro
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