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People v. Rodriguez1/5/2005
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.
BACKGROUND
Appellant was charged with gross vehicular manslaughter while intoxicated, and the second degree murder of Patrick Flanders. The matter went to jury trial, and the jury was also instructed with regard to the lesser included offenses of driving under the influence or combined influence of any alcoholic beverage or drug, causing bodily injury, and vehicular manslaughter resulting from gross negligence.
At trial, several eyewitnesses testified that on October 16, 2001, they saw appellant drive erratically at a very high rate of speed on Burbank Boulevard and lose control of his car as he attempted an unsafe pass. Appellant's car crossed the planted median into oncoming traffic, where it collided with a motorcycle, killing its driver.
Investigating officers saw signs of intoxication, and appellant was given a breathalyzer test, which showed a blood alcohol content of .07 percent. Los Angeles Police Department criminalist Jeffrey Lowe determined through "retrograde extrapolation" that if appellant had stopped drinking at 3:30 that morning as he claimed, his blood alcohol content at the time of the collision was from .08 percent to .10 percent.
A sobriety test and physical examination led Sergeant Dawn McCallum, a drug recognition expert, to conclude that appellant was under the influence of both alcohol and marijuana. Later, a urine sample showed that appellant had, at some time within the past few days, ingested marijuana and methamphetamine. That result, combined with appellant's physical appearance and his erratic driving, led Sergeant McCallum to conclude that he was also under the influence of methamphetamine at the time of the collision, not simply at some time in the past few days.
The jury rejected the lesser included offenses, convicting appellant of gross vehicular manslaughter while intoxicated and second degree murder, as charged in counts 1 and 2 of the information, respectively. On February 21, 2003, the trial court stayed sentence with regard to count 1, and sentenced appellant to 15 years to life on count 2. Appellant filed a notice of appeal the same day.
DISCUSSION
Appellant makes two assignments of error. He contends that an erroneous jury instruction created a presumption that removed an element of second degree murder from the jury's consideration, and that the trial court erred by failing to state its reasons for denying probation.
1. Instructional Error
Murder is the unlawful killing of a human being with malice aforethought. (Pen. Code, § 187, subd. (a).) Malice may be implied when a death results from the deliberate commission of an act, the natural consequences of which are dangerous to life, by a person who knows his conduct endangers the life of another, and thus entertains a conscious disregard for human life. (People v. Watson, supra, 30 Cal.3d 290.)
Appellant contends that it was the dangerous to life element that was taken from the jury by the trial court's instruction with regard to the basic speed law.
The basic speed law provides: "No person shall drive a vehicle upon a highway at a speed greater than is reasonable or prudent having due regard for weather, visibility, the traffic on, and the surface and width of, the highway, and in no event at a speed which endang
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