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People v. Johnson10/3/2002
A jury convicted appellant, Stan Shae Johnson, of gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a)), causing injury while driving under the influence (Veh. Code, § 23153, subd. (a)), and causing injury while driving with a blood alcohol level over .08 (§ 23153, subd. (b)). The court sentenced appellant to six years in prison.
Appellant makes numerous contentions, urging each as a basis for reversal. We agree with only the contention that his convictions under section 23153 must be reversed because they are lesser included offenses of Penal Code section 191.5 and will otherwise affirm the judgment.
PROCEDURAL AND FACTUAL BACKGROUND
In the early morning of March 29, 1999, appellant's 1984 Corvette was traveling at approximately 102 miles per hour when the driver lost control and the car began to slide clockwise, hitting three trees before coming to rest. The last impact was so severe that it severed the rear axle and the hard-top roof from the car and left parts of the vehicle embedded in the uprooted tree. The first passerby on the scene found Dawn Walker lying dead some 20 to 30 feet from the car, on the passenger side. Appellant was on his knees, gasping for air and moving his head up and down, 20 to 30 feet from the driver's side of the vehicle. The passenger door was closed, while the driver's door was open.
California Highway Patrol (CHP) Officer Chris Diebolt was dispatched to the scene at 12:56 a.m., arriving some 10 minutes later. Appellant told the officer his name and that his chest and stomach hurt. When asked if his injuries had been caused by the steering wheel, appellant nodded his head up and down. After approximately five minutes, emergency medical personnel arrived and began attending to appellant. Emergency medical technician (EMT) Paul Campos began to assess appellant's physical and mental condition, asking, among other things, if appellant had been driving. Appellant motioned to himself, putting his right hand to his chest. Not sure if appellant was responding to the question or reacting to pain, the EMT asked again if appellant had been driving. Appellant nodded his head up and down. The EMT instructed other ambulance personnel to "package" appellant for transport and then went to check on Walker. He found her lying face down, with no detectable carotid pulse. Appellant was loaded into the ambulance and taken to the hospital, accompanied by the EMT. In the ambulance, appellant again told the EMT that he was the driver and also that he had been drinking that night. When the accident occurred, appellant said, the car was traveling at 55 miles per hour.
Officer Diebolt followed the ambulance to the hospital. At approximately 2:00 a.m., medical personnel allowed him to speak to appellant, who was waiting to be taken to the X-ray unit. The officer asked appellant for routine information such as his name and address. When the officer showed appellant a picture that was found in his wallet, appellant stated that her name was Dawn, that she was his girlfriend, and that they had been going home to Corcoran after having dinner in Porterville and then meeting friends for drinks. Appellant provided the officer with phone numbers for Walker's family. When asked if he had been drinking, appellant said that he "had a couple beers." He also said that neither he nor Walker had been wearing seatbelts.
Asked if he had been driving, appellant nodded affirmatively and said that he had been "taking Dawn home." Needing a blood sample and not knowing how long appellant would be in X-ray, the officer arrested and "Mirandized" him.
Immediately before appellant was taken to X-ray, the EMT chec
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