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The People v. Mark Davis Julian

September 8, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
MARK DAVIS JULIAN, DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Superior Court of Riverside County, Patrick F. Magers, Judge. (Super. Ct. No. SWF026544)

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

CERTIFIED FOR PARTIAL PUBLICATION*fn1

Affirmed.

A jury convicted defendant Mark Davis Julian of two counts of vehicular manslaughter while intoxicated without gross negligence (counts 1 and 2, Pen. Code*fn2 §191.5 (b)). The jury also found Julian inflicted great bodily injury under section 12022.7, subdivisions (a) and (b) as to both manslaughter counts. With respect to count 1, the vehicular manslaughter of Terri Keller (Terri), the jury found Julian guilty of inflicting great bodily injury causing the coma of Terri's daughter Amanda Keller (Amanda). (§12022.7, subd. (b).) Also on count 1, the jury found Julian inflicted great bodily injury within the meaning of § 12022.7, subdivision (a) on Terri's other daughter Alexis Keller (Alexis). (§12022.7, subd. (a).) With respect to count 2, the vehicular manslaughter of Amanda, the jury found Julian inflicted great bodily injuries on Terri and Alexis within the meaning of §12022.7, subdivisison (a).

The court sentenced Julian to 12 years of imprisonment. The sentence was composed of a four-year upper term year for the manslaughter of Terri, a five-year enhancement for Amanda's great bodily injury resulting in a coma and a three-year enhancement for Alexis's great bodily injury. With respect to the manslaughter of Amanda, a four-year upper term and two three-year great bodily injury enhancements for the injuries to Terri and Alexis were imposed and stayed under section 654.

Julian appeals, contending the trial court erred: (1) in rejecting his offer of proof with respect to a power outage at the site of the accident; (2) in admitting into evidence an "in-life" photograph of the Keller family; (3) in imposing section 12022.7 subdivisions (a) and (b) enhancements for manslaughter victims Terri and Amanda; (4) in imposing two section 12022.7 (a) enhancements for the great bodily injury suffered by Alexis; (5) in imposing the maximum restitution fine of $10,000 without considering his ability to pay; and (6) in failing to give him four days of presentence credits.

We find no error and affirm.

FACTUAL BACKGROUND

On the afternoon of May 13, 2008, after drinking several 32-ounce beers, Julian was traveling eastbound on Highway 74 in Riverside County, approaching Briggs Road. Terri, who was driving a sports utility vehicle (SUV), was stopped on northbound Briggs Road at Highway 74 and waiting for the signal to change. Although traffic on eastbound 74 was stopped at Briggs Road, Julian drove his pick-up truck at between 45 and 59 miles per hour past the stopped traffic and through a red light at Briggs Road. Julian's truck collided with Terri's SUV, which had entered the intersection. Terri suffered an "internal decapitation" and died on impact.

Terri's two daughters Amanda and Alexis were passengers in the SUV. After being hit by Julian's truck, Terri's SUV spun around, hit two vehicles in westbound lanes of Highway 74 and came to a stop. At the opposite traffic light, off-duty Police Officer Joseph Nardone was in his personal vehicle. Nardone saw a body fly out of the rear window of the SUV and into oncoming traffic. The body Nardone saw was Alexis, who lost consciousness. When she awoke, Alexis found herself lying face down on the pavement next to another vehicle's tire; blood and glass were everywhere around her.

Nardone moved Alexis to safety. On route to a local hospital, Alexis went in and out of consciousness. Alexis suffered a ruptured spleen, a laceration on the back of her head and a broken back. Alexis was hospitalized for four days. Upon her release she was placed in a back brace which she wore for six months; she was confined to bed for the remainder of the summer.

After attending to Alexis, Nardone found Amanda partially ejected from the SUV with her head outside of the car and her feet held inside the vehicle by a seatbelt. Amanda was unconscious, bleeding from both ears, her nose and mouth and was having extreme difficulty breathing. Upon removing Amanda from the SUV, Nardone realized she had ceased breathing. Nardone successfully administered cardio-pulmonary resuscitation and Amanda was flown by helicopter to a local hospital. However, Amanda never regained consciousness.

Six months later, in December 2008, a doctor determined Amanda was in a permanent vegetative state and would never regain complete consciousness. In January 2009, after discussing Amanda's condition with her physician, Amanda's father permitted the physician to withdraw Amanda's life support and she died.

Two hours after the accident Julian had a recorded blood alcohol level of .10. An expert testified that given the rate at which Julian likely metabolized the alcohol in his bloodstream, at the time of the accident Julian probably had a blood alcohol level of .14. Julian was not seriously injured in the collision.

TRIAL COURT PROCEEDINGS

As we indicated at the outset, a jury convicted Julian of two counts of vehicular manslaughter while intoxicated without gross negligence and found true the alleged great bodily injury enhancements. (Counts 1 and 2, §§ 191.5 (b), 12022.7 subds. (a), (b).) As we also indicated, the trial court sentenced Julian to a total of 12 years' imprisonment including four years for the manslaughter of Terri, five years on the enhancement for Amanda's great bodily injury resulting in a coma and three years on the enhancement for Alexis's great bodily injury. Sentence for Amanda's manslaughter, including enhancements for the bodily injuries Terri and Alexis suffered, was imposed and stayed under section 654.

DISCUSSION

I

Excluded Evidence of Power Outage

1. Background

At the time of the accident, several witnesses and experts confirmed the traffic signal at the intersection of Highway 74 and Briggs Road was cycling properly. The prosecution witnesses also agreed that at the time of the accident Terri had a green light which permitted her to proceed north on Briggs Road and eastbound traffic on Highway 74 had a red light which should have prevented Julian from going into the intersection. The witnesses did agree one of the three redundant red lights controlling traffic on eastbound Highway 74 was burned out.

Importantly, a CalTrans worker who was familiar with the operation of traffic signals also testified. On the day after the accident he replaced the burned out bulb on the third red light facing eastbound traffic on Highway 74. He testified the signals at the intersection were surge protected, that if electric power to them was interrupted they would operate on battery power for several hours, and if the computer synchronizing the lights froze, the lights would simply stop working. The CalTrans worker ...


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