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The People v. Jose Luis Mendiola-Ponce

May 9, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JOSE LUIS MENDIOLA-PONCE, DEFENDANT AND APPELLANT.



(Super. Ct. No. 084714)

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

P. v. Mendiola-Ponce

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant Jose Luis Mendiola-Ponce challenges his conviction for gross vehicular manslaughter while intoxicated on instructional error grounds. Finding no merit in his arguments, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Between the hours of 9:00 p.m. and 10:00 p.m. on August 9, 2008, defendant and his brother-in-law, Martin Javier Ledesma Martinez (Ledesma), went to La Finca De Rivera to see a band perform. According to Ledesma, Fabian Peralta Perez approached defendant and picked a fight several times while the two were at La Finca De Rivera. Perez appeared to be drunk. At around midnight, defendant and Ledesma left La Finca De Rivera to go home. Perez followed the two out of the bar and got into the front passenger seat of defendant's Jeep Cherokee, defendant got into the driver's seat, and Ledesma got into the driver's side rear passenger seat. Although defendant and Ledesma had never met Perez before that night, they decided to give Perez a ride home because they were worried he would get into other fights at the bar.

Once on the road, Perez wanted to go to another bar. Defendant refused because both he and Ledesma had to work in the morning. Ledesma testified that Perez then started to fight with defendant, who did not pay any attention to him. Perez then reached over and grabbed the steering wheel. The Jeep veered west and crashed into a tree, then rolled onto its roof.

Francisco Martinez drove by the accident, called 911, and got out of his car to help. Ledesma told Martinez that defendant fell asleep while driving. Both defendant and Ledesma were airlifted to UC Davis Medical Center, where defendant's blood was drawn. His blood-alcohol level later came back as 0.94 percent. Perez was pronounced dead at the scene and his blood-alcohol level was later determined to be 0.23 percent.

Defendant was charged in count 1 with murder, in count 2 with gross vehicular manslaughter while intoxicated, in count 3 with driving under the influence of alcohol causing injury, in count 4 with driving at 0.08 percent blood-alcohol content or above causing injury, and in count 5 with driving without a valid driver's license. It was further alleged as to counts 2, 3, and 4 that defendant had been convicted of driving under the influence of alcohol on two prior occasions, and as to counts 3 and 4 that defendant personally inflicted great bodily injury and inflicted great bodily injury or death on multiple victims.

At trial, the court instructed the jury as to gross vehicular manslaughter while intoxicated and lesser included offenses using CALCRIM Nos. 510, 590, 591, 592, and 593. The court gave oral instructions along with providing copies of the written instructions to the jury for deliberations.

In discussing the instructions with the court, defense counsel requested that the court read instructions rather than paraphrasing. The court indicated it would paraphrase when it encountered awkward written language and further welcomed counsel to read the text during his closing argument, whether it was the same or different than that given by the court. The court concluded any misreading would be curable by the ability of counsel to comment on the instructions.

During its oral recitation of CALCRIM No. 590, which deals with gross vehicular manslaughter, the court instructed the jurors as to vehicular manslaughter and unexpected emergency situations and then, rather than reading the instruction as written, referred the jury to a previously given murder instruction about natural and probable consequences and acts constituting a substantial factor in the victim's death. The court explained, "I'm going to tell you now that this is one of those areas where the same statement regarding how an act may cause death is direct, natural and probable ...


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