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People v. Guerrero6/11/2002
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 977.
APPEAL from a judgment of the Superior Court of San Diego County, Marguerite L. Wagner, Judge. Judgment affirmed in part; judgment reversed in part, and judgment vacated in part and remanded with directions.
A jury convicted Tadeo Guerrero of second degree murder (Pen. Code, § 187, subd. (a)), gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a)), three counts of driving under the influence of alcohol and causing injury (Veh. Code, § 23153, subd. (a)), driving with a blood alcohol content over .08 and causing injury (Veh. Code, § 23153, subd. (b)), and driving with a suspended license (Veh. Code, § 14601.2, subd. (a)), a misdemeanor. In connection with the manslaughter and felony drunk driving counts, the jury found Guerrero had personally inflicted great bodily injury within the meaning of Penal Code section 12022.7, subdivision (a). In connection with the felony drunk driving counts, the jury also found Guerrero (1) caused injury to more than one victim within the meaning of Vehicle Code section 23182, and (2) had within the past seven years been convicted of driving under the influence of alcohol.
The trial court sentenced Guerrero to 15 years to life for murder. Pursuant to Penal Code section 654, the court stayed sentences on the manslaughter count and the driving with a blood alcohol of .08 percent or greater and causing injury count. The trial court imposed concurrent midterm sentences on all remaining felony counts and enhancements. The court also imposed a six-month concurrent term for the misdemeanor.
Guerrero appeals. He assigns error to (1) refusing to give an instruction distinguishing gross negligence and implied malice; (2) failing to answer the jury's inquiries concerning the meaning of "conscious disregard" and implied malice; (3) giving CALJIC No. 17.41.1; (4) denying the motion for new trial based on the ground the verdict was coerced; (5) admitting an emotional and inflammatory video tape about the consequences of drunk driving ; and (6) failing to give CALJIC Nos. 2.50, 2.50.1 and 2.50.2. Guerrero also contends there was insufficient evidence of implied malice to support the second degree murder conviction and he was denied a fair trial based on the cumulative error during his trial. Additionally, Guerrero asserts one of the felony drunk driving convictions must be stricken as a lesser included offense of gross vehicular manslaughter, the Vehicle Code section 23182 enhancements must be stricken or stayed, and the sentence on the driving with a blood alcohol level of .08 or greater and causing injury must be stricken for penal, recidivist and administrative purposes.
FACTS
On October 25, 1998, Guerrero was arrested for driving under the influence of alcohol, and he subsequently pled guilty. Guerrero was placed on probation, with conditions that he not drive without a valid license, not drive with measurable alcohol in his system and not commit the same or similar offenses. His driver's license was suspended. Guerrero also attended a driving under the influence program, consisting of six, two-hour classes. He completed the course on May 18, 1999.
On May 30, 1999, Guerrero began drinking around 9:00 a.m., consuming a 32-ounce bottle of beer at a friend's house. Between noon and 1:00 p.m., Guerrero, Nestor Sanchez and Rogelio Mendoza drove to
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