APPEAL from a judgment of the Superior Court of Los Angeles County. Joan Comparet-Cassani, Judge. (Los Angeles County Super. Ct. No. NA080558)
The opinion of the court was delivered by: Mallano, P. J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Reversed in part and affirmed in part as modified with directions.
Defendant Marlon Roldan appeals from the judgment entered following a jury trial in which he was convicted of second degree murder, gross vehicular manslaughter while intoxicated, causing injury while driving under the influence of alcohol (DUI), causing injury while driving with a 0.08 percent blood-alcohol concentration, driving with a suspended license, and failing to provide evidence of financial responsibility, with findings he inflicted great bodily injury on the surviving victim. Defendant contends the prosecutor committed misconduct in argument, the trial court improperly denied his motion for judgment of acquittal of the charge of failing to provide evidence of financial responsibility, the trial court improperly imposed five-year great bodily injury enhancements and a $1,000 fine for failing to provide evidence of financial responsibility, and the abstract of judgment requires correction. The Attorney General concedes the final three contentions. We modify the judgment by reducing the great bodily injury enhancements to three years, reverse the conviction for failing to provide evidence of financial responsibility, and direct amendment of the abstract of judgment, but otherwise affirm.
On the night of December 15, 2008, defendant consumed alcoholic beverages at a party, then drove his van through Long Beach toward his home in Wilmington. He fell asleep or blacked out, drove his van into opposing traffic, narrowly missed colliding with a fuel tanker and another vehicle, then collided with an SUV driven by Miguel Melena. Melena's SUV flipped and landed upside down. Melena suffered numerous serious injuries that still plagued him when he testified in March 2010; his passenger, his 17-year-old brother Lionel, was killed. More than three hours after the collision, defendant's blood-alcohol concentration was 0.17 percent.
Los Angeles Police Department Officer Anthony Trovato visited defendant at the hospital about three hours after the collision, but could not awaken defendant. Trovato looked through defendant's belongings, but could not find proof of insurance. Trovato went to the scene of the collision and searched defendant's van, but did not find proof of insurance.
Defendant had been convicted in January of 2003 of DUI and failing to provide proof of financial responsibility, though he denied remembering the latter conviction. He completed a court-ordered alcohol education program that included classes, group sessions, and Alcoholics Anonymous meetings. Classes were offered in English and Spanish. Topics addressed in the course included how alcohol impairs judgment and the ability to drive, and that driving under the influence of alcohol creates a risk that someone will be killed.
Defendant's driver's license had been suspended in June of 2006 for failure to pay child support and remained suspended at the time of the collision. Notices of suspension had been mailed to defendant's address in Wilmington. Defendant testified that he was unaware that his license had been suspended, did not recall receiving any notices from the Department of Motor Vehicles or the Office of the District Attorney, but explained that he threw away all English-language mail he received, no matter who sent it.
Defendant testified that the van was in his mother's name, and he gave her money to make the payments and to pay for insurance. He did not know whether the van was insured, but he knew he did not carry proof of insurance inside the van.
Defendant testified he had a sixth-grade education and did not understand English. He could not recall whether the alcohol education classes he took were given in English or Spanish, but he was unable to understand everything in the classes. The only thing he remembered from the classes was that upon a second DUI conviction, all of the penalties would be doubled. But defendant admitted that he knew he was unable to drive properly while drunk and that he might kill someone. He was more intoxicated on the night of December 15, 2008, than he had been when he was arrested for DUI in 2003, and he knew he was too drunk to drive. He would not drive his children if he were as drunk as he was on the night of December 15, 2008. He explained that he did not intend to drink alcohol that night, but was goaded into doing so by the party host. Defendant intended to sleep at the house where he was drinking, but his cousin insisted that defendant drive him home, a distance of five or six blocks. Instead of returning to the party house after dropping off his cousin, defendant attempted to drive home.
The jury convicted defendant of second degree murder, gross vehicular manslaughter while intoxicated, DUI causing injury, causing injury while driving with a 0.08 percent blood-alcohol concentration, driving with a suspended license, and failing to provide evidence of financial responsibility, with findings he inflicted great bodily injury (Pen. Code, § 12022.7, subd. (a); undesignated statutory references are to the Penal Code) upon Miguel Melena. The court sentenced defendant to prison for 22 years 6 months to life and imposed a $1,000 fine for failing to provide evidence of financial responsibility.