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People v. Burke10/3/2002
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.
Carl J. Burke appeals a judgment following his jury conviction of gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subdivision (a)). He contends his constitutional due process rights were violated because the prosecution did not dismiss the charges in a prior case against him before proceeding with this case, or, alternatively, the convictions of lesser included offenses and true findings on related allegations at his prior trial should be reversed.
He also contends the trial court erred by (1) admitting evidence of two prior convictions and allowing a prior victim to testify; (2) allowing a witness to testify in another courtroom; (3) not instructing sua sponte on unconsciousness with CALJIC Nos. 4.30 and 4.31; and (4) not striking the section 191.5, subdivision (d) enhancement allegation. We affirm the judgment, except we reverse Burke's convictions of lesser included offenses of his section 191.5, subdivision (a) offense and their related allegations and remand the matter to the trial court with directions.
FACTUAL AND PROCEDURAL BACKGROUND
At about 4:20 p.m. on September 21, 1999, Burke drove his truck into an intersection without stopping for a red light, striking pedestrian Peter Vargas, who was crossing the intersection with the green light. His truck was traveling about 30 to 35 miles per hour and did not slow before striking Vargas. Burke also struck a white car in the intersection. Burke continued driving to another intersection; he stopped at its red traffic light and waited for the second green light before proceeding. He began to drive the wrong direction onto an onramp and almost caused a head-on collision with another vehicle. After backing up, he drove to and parked in a parking lot of an apartment complex, sat in his truck for several minutes, and then walked around the side of the complex.
Andrew Quinn witnessed the initial incident and followed Burke's truck to the apartment complex. After Burke arrived at the apartment complex, Quinn called police. When Escondido Police Officer Jay Martin arrived, Quinn identified Burke's truck for him. The truck had substantial front end damage. Martin found Burke sitting in front of an apartment, looking for his keys. Burke displayed signs of intoxication.
He could not stand up, emitted an alcohol odor, slurred his speech, and mumbled. Martin performed a horizontal nystagmus test on Burke, which indicated Burke was highly intoxicated. Martin arrested Burke. Burke stated he suffered from diabetes. He also stated he wanted to go to the hospital for what he did and he was "mentally ill." Another officer thought Burke was drunk and had a mental problem.
At the police station, Burke responded appropriately to questions asked to determine whether he knew right from wrong. He admitted he knew it was wrong to drive under the influence of alcohol. He explained he began drinking at 10:00 a.m. because he was upset about his wife leaving him. He said he consumed about a quart of rum. He was driving home from a grocery store after buying more alcohol when the accident occurred. When asked whether he thought his drinking affected his driving, Burke replied "probably" and then "big time." When informed he had struck and severely injured a pedestrian, Burke did not show sadness or remorse. He stated he did not remember the in
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