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People v. Jimenez1/18/2005
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.
While driving a friend's Jeep on the northbound 101 Freeway after a night of drinking and little sleep, appellant Eric Jimenez crossed over to the southbound lanes and collided with another car, causing that driver's death. At trial, he argued that the collision was caused by a dangerous road condition. Appellant was convicted of vehicular manslaughter without gross negligence while driving with a blood alcohol level of .05 percent or more. (Pen. Code, § 192, subd. (c)(3).) He contends on appeal: (1) the court should have excluded certain evidence as unduly prejudicial; (2) the court gave a misleading answer to a jury question during deliberations; (3) the court should have given a jury instruction on superceding cause; (4) the court erred by instructing the jury that a violation of the basic speed law is an act inherently dangerous to human life; (5) the court should have given a unanimity instruction; (6) the evidence was insufficient to show that appellant committed an unlawful act dangerous to life or a negligent act that might cause death, as required for a conviction of vehicular manslaughter; (7) CALJIC Nos. 2.90 and 17.41.1 were unconstitutional; and (8) the court should not have imposed an upper term sentence based on factors in aggravation that were not found true by the jury. We affirm.
FACTS
On the night of December 20, 2002, appellant and Michael DeLuca drove several hundred miles from Redwood City, where they lived, to Ojai. They took DeLuca's Jeep Cherokee and DeLuca drove. Before leaving, DeLuca placed several bottles of liquor in the Jeep, anticipating that they might "party" with some of his friends. Appellant was not yet 21 years old.
Appellant and DeLuca arrived at DeLuca's mother's house in Ojai at about 6:00 in the morning. Both of them slept for several hours; appellant awoke at about 3:00 in the afternoon. At 10:30 p.m., they picked up three friends of DeLuca's and went to another friend's house. They drove together to a pub and then to another friend's house. Appellant drank several beers and a small amount of hard liquor during the evening. He seemed to be under the influence and kept talking about marijuana, saying, "I can't get drunk off drinking, I have to have some weed."
The group went to Jack-in-the-Box to get some food sometime after 1: a.m. One of DeLuca's friends recognized some people whom she thought might have some marijuana. She pointed them out to appellant and appellant purchased a small amount of marijuana.
DeLuca and appellant returned to DeLuca's mother's house. DeLuca was tired and wanted to stay the night, but appellant wanted to start the drive home. DeLuca agreed and they left Ojai at about 2:45 a.m. While DeLuca drove, appellant used a cigar to fashion a "blunt" by removing the tobacco and placing the marijuana he had purchased inside. He tried smoking it, but DeLuca made him roll down the windows and then told him to put it out because it was so cold outside.
DeLuca drove until they reached the Gaviota rest stop off of the 101 Freeway north of Santa Barbara. He told appellant he was too tired to drive and appellant took the wheel, even though the Department of Motor Vehicles had suspended his driver's license after designating him a negligent operator. (See Veh. Code, §§ 12809, subd. (e), 13359.) DeLuca believed that appellant no
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