(Super. Ct. No. 06F02847)
The opinion of the court was delivered by: Raye , P. J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
When firefighter Mark Cullison responded to the report of an assault outside a bar, he discovered a bleeding man standing on the sidewalk. Cullison then heard a loud crash and saw a body sliding across the street toward him, followed by a speeding white van. He later identified defendant Kevin Lynell King as the driver.
An information charged defendant with second degree murder, gross vehicular manslaughter while intoxicated, vehicular manslaughter with gross negligence, driving under the influence within 10 years of three or more convictions, hit and run from a fatal accident, and driving with a suspended license. (Pen. Code, §§ 187, subd. (a), 191.5, subd. (a), 192, subd. (c)(1); Veh. Code, §§ 23152, subd. (a), 23550, subd. (a), 20001, subd. (a)(b)(2), 14601.2.)*fn1
A jury found defendant guilty on all counts. Sentenced to 19 years to life in state prison, defendant appeals, challenging the sufficiency of the evidence.
FACTUAL AND PROCEDURAL BACKGROUND
Quite early one May morning, firefighter Mark Cullison was dispatched to a reported assault outside a bar. He found a bleeding man, a sliding body, and a van headed in his direction; Cullison later identified defendant as the driver.
An information charged defendant with second degree murder, gross vehicular manslaughter while intoxicated, vehicular manslaughter with gross negligence, driving under the influence having previously suffered three prior convictions within 10 years, hit and run from a fatal accident, and driving with a revoked or suspended license. In addition, as to the gross vehicular manslaughter count, the information alleged defendant had two prior convictions for driving under the influence and a conviction for fleeing the scene of an accident. Defendant entered a plea of not guilty.
A jury trial followed. The following evidence was introduced at trial.
Around 1:45 a.m., Cullison was dispatched to a reported assault at the Reno Club in West Sacramento and found a bleeding victim. As Cullison talked with the man, he heard a very loud crash. He looked up and saw a body sliding across the pavement. Cullison saw a white van accelerating rapidly in his direction at approximately 45 to 55 miles per hour. Cullison yelled "stop," but the van continued to accelerate. As it sped away, Cullison estimated the van accelerated to 65 to 70 miles an hour. The van never slowed down.
Cullison radioed dispatch to report the hit and run, then attempted to aid the man who had been struck by the van, to no avail. Cullison recognized the man as someone who had been walking down the street as the firefighter responded to the dispatch.
Cullison identified defendant as the driver of the van. The victim, Ist Deo Sharma, died of injuries suffered in the collision.
What the Officer Observed
A police officer for the Sacramento Port working in a guard station heard the radio dispatch of the hit and run. The officer saw a van speeding and weaving in and out of traffic. The van stopped and the occupant jumped out and ran. The officer reported the incident to the sheriff's dispatch.
A responding officer found defendant running away and detained him at gunpoint until other officers arrived. Defendant was not wearing a shirt. Officers detected a moderate odor of alcohol on defendant's breath. His eyes were bloodshot and watery. Defendant refused to take a field sobriety test. Around 2:30 a.m., a blood sample was taken from defendant. Fifteen minutes later, defendant was given a breathalyzer test, and three minutes after that, he was given a second breathalyzer test. The results from both breathalyzer tests were .01 percent blood alcohol content. Defendant's blood tested positive for marijuana, cocaine, and Ecstasy.
A forensic toxicologist testified that, in his opinion, defendant had ingested marijuana, cocaine, and Ecstasy prior to the incident. The toxicologist stated the marijuana and cocaine were probably ingested within hours of the blood being drawn; the ...