People v. Lopez10/19/2004
Defendant was charged and convicted of vehicular manslaughter (Pen.Code, § 192, subd. (c)(3); count I), [FN1] driving while intoxicated and causing injury (Veh.Code, § 23153, subd (a); count II), driving while having .08 percent or more, by weight, of alcohol in his blood and causing injury (Veh.Code, § 23153, subd. (b); count III), and driving with .05 percent or more, by weight, of alcohol in his blood while under age 21 (Veh.Code, § 23140, subd. (a); count IV). The jury also found true several great bodily injury and multiple victim enhancements. (§ 12022.7, subd. (a); Veh.Code, § 23558.) Defendant was sentenced to eight years in prison. [FN2]
FN1. All further statutory references are to the Penal Code unless otherwise indicated.
FN2. The sentence consisted of the low term of 16 months on count III, plus an eight-month term on count I. Two consecutive three-year terms were added for the great bodily injury and multiple victim enhancements on count III. Additional terms and enhancements were imposed but stayed on counts II and IV.
The charges stemmed from a one car drunk driving accident that occurred during the early morning hours of February 9, 2001. Defendant, then 18, was driving eastbound on the Interstate 10 freeway with five underage passengers. As he approached another vehicle from behind at a high rate of speed, he drove off the freeway and rolled down an embankment into a wash. One passenger, Escarlet Valenzuela, age 15, was killed. Defendant and the other passengers were seriously injured.
Defendant appeals, raising two contentions. First, he contends that his double jeopardy rights were violated because a first jury that was impaneled and sworn on June 5, 2002, was discharged without his consent or legal necessity. He was convicted by a second jury that was impaneled and sworn on June 18, 2002. We reject this contention because the record shows that defendant consented to discharge the first jury, both personally and through his counsel, after his trial counsel became ill and the first jury was unavailable during the following week.
Second, defendant contends the trial court erred in failing to give a unanimity instruction (e.g., CALJIC No. 17.01) on counts II, III, and IV. He argues that the jury could have convicted him on these counts based on one of two Vehicle Code violations: (1) Vehicle Code section 21658, subdivision (a) (failure to drive within one lane) and/or (2) Vehicle Code section 22350 (basic speed law). We reject this contention because the evidence showed that defendant was both speeding and made an unsafe lane change as he drove off the freeway, causing the accident.
FACTS
About 1:00 a.m., Raymond Arellano was driving eastbound on Interstate 10, at 70 miles per hour, approaching Monroe Street. He noticed a car in his rearview mirror, "approaching pretty fast." As the car approached, it changed lanes and "swerved off" the freeway into the emergency lane, down an embankment, and into a wash before the Monroe Street bridge. Arellano said the car came within five feet of him before it changed lanes without slowing down. Arellano stopped his car and ran down into the wash. As he came back to the freeway to look for a call box, he waved down two highway patrolmen. Defendant, who was driving the car, had a blood alcohol level of .14 percent, by weight, at the time of the accident.
DISCUSSION
A. Double Jeopardy Did Not Bar Defendant's Second Trial Because He Consented to Discharge the Jury in His First Trial, Both Personally and Through His Counsel
*2 Defendant contends his second trial was barred by double jeopardy because he did not consent to nor was there a legal necessity for the trial court's discharge of the jury in his first trial. We disagree.
We first note that defenda
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