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The People v. Robert Palacio Vellanoweth

December 21, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
ROBERT PALACIO VELLANOWETH, DEFENDANT AND APPELLANT.



(Super. Ct. No. 07F03967)

The opinion of the court was delivered by: Blease , Acting P. J.

P. v. Vellanoweth CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

A jury convicted defendant Robert Vellanoweth of four counts of gross vehicular manslaughter while under the influence of alcohol after he crashed head-on into a car being driven by Brizchelle Rice, killing Rice and three of her passengers. (Pen. Code § 191.5, subd. (a).)*fn1 The fourth passenger, Tanisha Johnson, survived the crash, but was seriously injured, for which defendant was convicted of causing bodily injury while driving under the influence and causing bodily injury while driving with .08 percent alcohol in his blood. (Veh. Code, § 23153, subds. (a) & (b).) His total sentence for these crimes was 17 years and 8 months in prison.

We shall conclude that the trial court correctly excluded evidence that the deceased driver of the other vehicle did not have a driver's license. Defendant sought to introduce the evidence to show that the other driver's negligence caused the accident, despite the fact that defendant was driving drunk, in the wrong lane of traffic, at a speed of more than double the posted limit. The evidence was properly excluded because it was irrelevant to prove the negligence of the victim, since there was no causal relationship between her failure to have a license and the crash.

We shall also conclude that the instructions given to the jury permitting them to infer from defendant's 0.16 percent blood alcohol level when tested that he: (a) was under the influence of alcohol at the time of the crash, and (b) had a blood alcohol level of at least 0.08 at the time of the crash, were not unconstitutional. The instructions did not impermissibly lighten the prosecution's burden of proving every element of the offense beyond a reasonable doubt because the instructions left the jury free to accept or reject the inference.

The trial court properly limited defendant's worktime credits to 15 percent because defendant was convicted of a felony in which he inflicted great bodily injury. The statutory scheme limiting the accrual of worktime credits is unambiguous, and we reject defendant's arguments that the Legislature must have meant something other than what it said.

Finally, we reject defendant's claim that the trial court did not understand its sentencing discretion under recent amendments to the sentencing laws giving the trial court greater discretion to choose the upper, lower, or middle term. The trial court's lengthy discussion of the factors weighing into its decision to impose the upper term demonstrates no misunderstanding of its obligations or of its discretionary power.

FACTUAL AND PROCEDURAL BACKGROUND

The collision occurred at approximately 3:40 p.m. on March 26, 2007. The bartender at The Distillery testified that defendant arrived at her establishment around 11:30 a.m., and she served him three martinis. Defendant left around 1:30 p.m.

Defendant went back to his office, arriving around 1:45 p.m. He left the office around 3:30 and went to the El Camino Real restaurant, next door. He stayed less than 10 minutes before leaving, eventually heading south on South Land Park Drive.

Tanisha Jackson, who was 16 at the time, testified that she and her friend Brittanya Nash were picked up from their high school that day by Brittanya's sister, Brizchelle. Also in the car were Brizchelle's baby son Kamall, and friend Shanice Carter. They first stopped at a Food Stop convenience store, then were going to pickup Brizchelle's other son from school. Jackson, the only survivor, remembered nothing after leaving the Food Stop.

Several witnesses heard, but did not see the crash. It had been raining that day, and the street was still wet. Lloyd Need was parked in a parking lot facing the intersection of South Land Park Drive and 35th Avenue when he heard the squealing of tires and revving of an engine. He looked up and saw defendant's red Jeep spinning its tires and fishtailing. The engine of the Jeep sounded like it was being floored. The Jeep was headed south on South Land Park Drive. Need did not continue to watch the Jeep, but a "very short period of time" later, he heard a huge, ground-shaking thud. He observed Rice's brown sedan in the northbound lane sitting sideways in the street. The front end of the car was "totally smashed." Further down in the southbound lane, he saw the red Jeep. He went back to his truck and dialed 911.

Sharon Williamson was getting out of her mother's car to mail some letters when she heard tires spinning out. She looked around and saw Rice's brown sedan in the street. It was headed north after appearing to have exited the southernmost exit from the parking lot. She continued on towards the post office, then heard a huge collision. She looked over quickly enough to see the impact as it was still happening. The red Jeep was on top of the brown car. The Jeep landed right side up in the gutter, and the sedan landed across the street almost on someone's lawn.

Jerry Kwong was working at a nearby store when he heard a loud, thundering sound. He looked out the front door and saw the Jeep at an angle. He eventually saw the other car on the lawn facing the wrong direction. He helped the driver of the Jeep get out of the vehicle, then went to the other car. He realized he could not help the driver of the other car because it was apparent she was dead.

Jordan Lindsey lived nearby. He heard the screeching tires first, then a tremendous impact. He ran outside and saw the sedan on his neighbor's lawn. He saw only three people in the car. He could tell the passenger in the front was dead. One of the passengers in the back was breathing, but not moving. Nothing could be done to help the driver. He wanted to help the passenger he knew was still alive, but the condition of the car was such that he was unable to get to her.

James Keating was shopping at a nearby grocery store. He was in the store when someone said there had been a fatal crash outside. He went to see if he could help. He saw defendant sitting in the passenger seat of the Jeep. He asked defendant if he were all right. Defendant indicated he was. He asked who had been driving, and defendant replied that his wife had been driving. He asked where defendant's wife was, and defendant said, "She got out and walked home."

Firefighter Robert Wenzler was the first emergency responder to speak with defendant. Defendant was outside the vehicle, walking around. Wenzler testified that defendant told him he was the passenger in the Jeep, and that his wife had been driving. Wenzler asked defendant where his wife was, and defendant told him she was in Arizona.

Wenzler started asking defendant questions to assess his condition. Defendant was irate and upset, and did not want to answer any questions. Defendant told Wenzler to go fuck himself. Defendant's speech was slurred, and Wenzler detected the odor of alcohol. After the police came, Wenzler tried to convince defendant to get in an ambulance and be evaluated. Defendant was uncooperative, and told Wenzler he did not have to cooperate because he (defendant) was a peace officer.

Police officer Lee Elson was dispatched to the scene of the accident. He noticed the odor of alcohol on defendant's breath. Defendant told Elson he was a retired CDC parole agent, and showed Elson his badge. Defendant told Elson he had been driving southbound on South Land Park Drive when the sedan "blew a red light and hit him." Elson knew this was impossible because there was no light at that intersection. Defendant did not recall how fast he had been going or what direction the other car had been coming from. Defendant told Elson he had had one alcoholic drink.

Police officers Jyotis Hasegawa and Shannon Whent also responded to the scene. Hasegawa testified that he smelled a strong odor of alcohol coming from defendant, that defendant's speech was slurred, and that his eyes were bloodshot and watery. Defendant told Whent he had been coming home from the El Camino Real restaurant. He told her he had been driving. He told her he had not had anything alcoholic to drink.

Officer Whent attempted to perform field sobriety tests on defendant. The first test performed was the Horizontal Gaze Nystagmus test. The test evaluates the bouncing of the eye as it tracks the movement of a pen or fingertip. Defendant was uncooperative and would not stand still. When Whent attempted to repeat the test and reinstructed defendant, he once again failed to follow instructions.

Whent also told defendant to stand on one leg, but he would not do it. Defendant refused to provide a breath sample for testing. Whent concluded there was probable cause to believe defendant was under the influence.

Defendant was uncooperative and had to be handcuffed to a gurney to be taken to the hospital. At the hospital, Whent advised defendant that he was required to submit to a blood alcohol test and that he did not have the right to refuse. Defendant's response was that he wanted an attorney and that he would not give a blood sample. According to procedure, the forced blood draw was videotaped, and the tape was played for the jury.

After the blood sample was taken from defendant, he told Whent that his foot slipped off the brake and he hit the gas, that "it must have been a hell of an impact," and "just take me to jail." Defendant told Hasegawa, "I went to the Camino Real restaurant and had a drink possibly called a Kamikaze. It was a large drink, and it contained rum. I made a bad choice. I hadn't eaten anything and then I drove home. I normally don't drink alcohol. I approached a stop sign and didn't even see what happened."

Around midnight, defendant told a nurse, "they hit me, it was not my fault, I am glad to be alive." He said "they" ran a stop sign. He also said he had not had anything to drink.

The forced blood draw was taken at 5:48 p.m., approximately two hours after the accident. The sample contained a blood alcohol concentration of .16 percent. With a blood alcohol concentration of .16 percent, a person absolutely would be mentally impaired.

The term "drink equivalent" is used to describe a standard drink. A drink equivalent contains a half-ounce of pure alcohol. A 12-ounce beer, a four-ounce glass of wine, an ounce-and-a-half of 80-proof alcohol, and an ounce of 100-proof alcohol are all one drink equivalent. Assuming defendant had no alcohol from the time of the crash to the time of the blood draw, he would have had to have drunk a minimum of 11 drink equivalents in a very short time frame just before the crash to reach a .16 level two hours later. The three martinis that defendant was proven to have consumed between 11:30 and 1:30 would have resulted in an approximate alcohol concentration of .03 percent at 3:39 p.m. To arrive at a .16 level two hours later, defendant also would have had to have consumed a minimum of nine and one-half drink equivalents just before the crash. This is the equivalent of 12 ounces of 80-proof alcohol.

Douglas Tracy, an officer with the Sacramento Police Department's major collision investigation unit, testified to his reconstruction of the accident. He stated that the collision occurred in the northbound lane of traffic. Defendant's Jeep was traveling southbound, and the victims' Chrysler LeBaron was traveling northbound. The vehicles hit head-on. The Jeep's speed was between 66 to 76 miles an hour at the time of the impact. The event data recorder in defendant's Jeep confirmed that it was traveling 66 miles an hour two seconds before the crash and accelerated to 72.7 miles an hour, dropping off in the last 2/10ths of a second to 72.08 miles an hour. Defendant never applied his brakes. The Chrysler's speed was between 18 and 24 miles an hour. The posted speed limit was 30 miles an hour.

Brizchelle Rice suffered massive injuries. Her spinal cord was torn in half, which was immediately fatal. Her heart was lacerated, also fatal. She suffered potentially fatal injuries, including a lacerated liver, pelvic injuries, a lacerated arm and a mangled leg. Had she lived, ...


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