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People v. Marlin11/30/2004
Defendant Terry Lee Marlin entered a negotiated plea of no contest to one count of second degree murder of a fetus (Pen.Code, § 187, subd. (a)-- count I; unspecified statutory designations are to the Penal Code), one count of driving with a blood alcohol content of .08 percent or more with four prior drunk driving convictions causing bodily injury to more than one victim and personally inflicting great bodily injury upon Jeanette A. (Veh.Code, §§ 23153, subd. (b), 23558; Pen.Code § 12022.7, subd. (a)--count III), and one count of driving on a suspended and revoked license with three prior convictions for the same offense (Veh.Code, §§ 14601.2, subd. (a)--count IV). He also admitted an on-bail enhancement (Pen.Code, § 12022.1). Defendant entered his plea in exchange for a stipulated sentence of 15 years to life for count I, concurrent time for counts III and IV and dismissal of the remaining counts (count II, a violation of Veh.Code, § 23153, subd. (a), driving under the influence with priors plus great bodily injury to more than one victim; count V, a violation of Veh.Code, § 14601.5, subd. (a), a misdemeanor; and count VI, a violation of Veh.Code, § 14601.1, subd .(a).) Defendant pleaded no contest to cohabitant abuse, as reduced to a misdemeanor (Pen.Code, § 273.5) in case No. P02CRF0001.
The court sentenced defendant to state prison for 15 years to life for second degree murder and to concurrent terms for the other charges and the enhancement.
Having obtained a certificate of probable cause (§ 1237.5), defendant appeals, raising various contentions that we discuss in turn below. We affirm the judgment.
FACTS AND PROCEEDINGS
The facts are taken from the transcript of the preliminary hearing, which was adopted by the prosecutor, defense counsel, and the court as the factual basis for the plea.
On the evening on March 19, 2002, defendant, driving a Cadillac on Green Valley Road, drifted onto the right hand shoulder of the road and then swerved to the left into the path of a car driven by Jeanette A. The Jeanette A. car struck defendant's vehicle broadside. Both Jeanette and her husband Russell A. were injured and their unborn baby was killed. Law enforcement officers found a bottle of Smirnoff Vodka two-thirds empty in defendant's Cadillac. At the hospital, defendant failed the sobriety test and was arrested for drunk driving. A blood sample was taken and, at sentencing, the court observed, without challenge, that defendant's blood alcohol content was "three times the legal limit."
When she was interviewed by California Highway Patrol Officer Gary Nichols, Jeanette said that defendant's vehicle went "out of control, and then it swerved in front of her vehicle." Russell told the officer something "similar, only he thought that the vehicle--it appeared to him that the vehicle was making a left turn in front of him." The officer confirmed that both Russell and Jeanette said that defendant's car entered their lane and that they collided with it.
*2 Jeanette told the officer that she had been driving 45 miles per hour in a 50-mile-per-hour zone. According to the officer, her statement was consistent with the evidence at the scene. The investigating officer did not perform mathematical speed or tire mark calculations relating to the accident. There were no tire marks associated with the victim's car.
At the preliminary hearing, the prosecutor submitted documents concerning defendant's driving history and certified copies of defendant's prior convictions for driving under the influence. At sentencing, the prosecutor noted that defendant's driving history included eight convictions for driving under the influence of alcohol.
According to the plea form, the court was to use the preliminary hearing transcript to establish the fac
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