(Super. Ct. No. 10F05063)
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Darryl Keith Alexander climbed behind the wheel of a motor home while under the influence of alcohol. He backed up the motor home, striking and ultimately crushing the victim. An information charged defendant with murder, gross vehicular manslaughter while intoxicated, vehicular manslaughter while intoxicated without gross negligence, felony hit and run, felony driving under the influence of alcohol, and driving on a suspended license. (Pen. Code, §§ 187, subd. (a), 191.5, subds. (a), (b); Veh. Code, §§ 20001, subd. (b)(2), 23153, subd. (a), 23153, subd. (b), 14601.1, subd. (a).)*fn1
A court trial followed. The court found defendant guilty of all charges except vehicular manslaughter while intoxicated without gross negligence. Sentenced to 70 years to life plus 11 years in state prison, defendant appeals, contending (1) insufficient evidence supports his second degree murder conviction, (2) the court erred in failing to stay the felony hit and run sentence under section 654, (3) the court abused its discretion by imposing a consecutive term for felony hit and run, and (4) the court improperly ordered defendant to submit to an AIDS test. We find the last contention has merit and shall instruct the court to eliminate the court ordered AIDS test from the judgment. In all other respects, we shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant, inebriated, backed up a motor home, hitting Ginger Ball, a woman with whom he was having a romantic relationship. After attempting to pull Ball's body out from under the vehicle's wheel, defendant drove away, running over Ball once again. After defendant abandoned the vehicle, officers arrested him.
An information charged defendant with murder (count one), gross vehicular manslaughter while intoxicated (count two), vehicular manslaughter while intoxicated without gross negligence (count three), felony hit and run (count four), felony driving under the influence of alcohol (count five), felony driving with a blood alcohol content of 0.08 percent and more (count six), and misdemeanor driving on a suspended license (count seven). As to count two, the information alleged defendant had three prior drunk driving convictions pursuant to Penal Code section 191.5, subdivision (d), and as to counts two and three, the information alleged that defendant fled the scene of the crime (Veh. Code, § 20001, subd. (c)). As to counts one through six, the information alleged, for purposes of Penal Code section 667, subdivision (a), that defendant was convicted of residential burglary in 1982 (Pen. Code, § 459) and assault with a deadly weapon in 2005 (Pen. Code, § 245, subd. (a)(1)), and for purposes of Penal Code section 667.5, subdivision (b), that defendant had served a prison sentence for grand theft in 2009 (Pen. Code, § 487).
Defendant waived his right to a jury trial and agreed to a court trial. The following evidence was introduced at trial.
Prosecution's Case The Incident
One summer day in 2010 Louise Bristow, who was homeless and living in her car, took her friend Ginger Ball to the bank to withdraw money. Ball was in a romantic relationship with defendant, and both were also homeless. After leaving the bank, Bristow dropped off Ball and picked up defendant. She drove defendant to his parents' home, where he would use Ball's money to buy a motor home.
Later that evening, in the area where she parked her car, Bristow saw a motor home pull up, driven by someone named Shorty. Shorty, Ball, defendant, and Shorty's girlfriend got out of the motor home. Defendant appeared intoxicated: he stumbled, slurred his words, and smelled of alcohol.
Ball and defendant went into the motor home and an argument broke out between them. Ball left the vehicle and walked behind it with Bristow and Shorty's girlfriend. Defendant began arguing with Shorty, who had been sitting in the driver's seat. Shorty got out of the motor home.
Rickey Henderson, sitting in a car nearby, saw defendant arguing with two men in the middle of the street. Henderson got out of his car and went up to the group. Henderson wrestled with defendant for a short time and then returned to his car. He observed defendant return to the motor home.
Defendant sat in the driver's seat and attempted to start the motor home. Bristow, standing behind the motor home, heard the gears grinding as defendant started the engine, revved it, and released the clutch.
The motor home lurched backwards towards Bristow, Ball, and Shorty's girlfriend. The trio stood approximately three feet behind the motor home. As the motor home moved toward them, Bristow jumped to the middle of the street and Shorty's girlfriend jumped to the curb. However, Ball, who had been standing between the other two women, was unable to move out of the way.
The motor home struck Ball and she fell beneath the rear wheel. The others screamed at defendant to stop the motor home; one person shouted, "You hit her!" As it continued to back up, the motor home dragged Ball 10 feet and then stopped.
Defendant got out of the vehicle and walked around to the passenger side of the motor home. He began to pull on Ball's body, which was stuck under the rear tire. As defendant pulled Ball's leg, it began to detach from her body. Ball gasped for air, bleeding from her mouth and nose.
Defendant dropped Ball's body in front of the motor home's rear tire. He climbed back into the motor home and drove it forward over ...