APPEAL from a judgment of the Superior Court of Kern County, No. BF140689A Thomas S. Clark, Judge.
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Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Charity S. Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
On January 22, 2012, defendant DeMarcus Monte Givan was driving in excess of the speed limit when he ran a red light and struck a vehicle driven by Tommy Fulce and his wife, Laura Fulce. Laura Fulce died as a result of the accident and Tommy Fulce sustained major injuries. Defendant’s passenger, Eric Bender, also sustained injuries. Approximately one hour after the accident, defendant had a blood alcohol level of 0.17 percent.
On July 25, 2012, the Kern County District Attorney filed an information charging defendant with gross vehicular manslaughter while intoxicated
(count 1; Pen. Code, § 191.5, subd. (a)), driving under the influence and causing bodily injury (count 2; Veh. Code, § 23153, subd. (a)), and driving with an excessive blood alcohol level causing injury (count 3; Veh. Code, § 23153, subd. (b)). As to each count, the information further alleged the following: defendant caused great bodily injury to more than one victim, to wit: Tommy Fulce and Bender (Veh. Code, § 23558); defendant had a blood alcohol level of 0.15 percent or more (Veh. Code, § 23578); defendant had been previously convicted of six felonies (Pen. Code, §§ 667, subds. (c)–(j), 1170.12, subds. (a)–(e)); defendant inflicted great bodily injury on a victim older than 70 years of age, to wit: Tommy Fulce (Pen. Code, § 12022.7, subd. (c)); and each count was a serious felony (Pen. Code, § 1192.7, subd. (c)(8)).
On July 27, 2012, defendant pled not guilty to all counts and denied all allegations. On January 23, 2013, a jury trial commenced. On January 30, 2013, the jury found defendant guilty on all counts and found true all allegations. The same day the jury rendered its verdicts, the trial court found true the allegation defendant had been previously convicted of five felonies.
On February 27, 2013, defendant filed a motion to strike his prior convictions pursuant to Penal Code section 1385, which the trial court denied at the sentencing hearing on March 1, 2013. The court denied probation. As to count 1 (Pen. Code, § 191.5, subd. (a)), defendant was sentenced to 25 years to life, plus a one-year enhancement (Veh. Code, § 23558), plus a five-year enhancement (Pen. Code, § 12022.7, subd. (c)), plus a one-year enhancement (Veh. Code, § 23558) stayed pursuant to Penal Code section 654. The court stayed sentence on counts 2 and 3, along with their respective enhancements.
On appeal, defendant contends the trial court should have sua sponte instructed the jury on a mistake of fact defense after he presented such a defense at trial. Defendant asserts the trial court committed prejudicial error, requiring reversal of his convictions. In the alternative, defendant maintains his trial counsel rendered constitutionally ineffective assistance in not requesting a mistake of fact jury instruction.
We find these arguments unpersuasive.
Defendant further argues he could not be lawfully convicted of count 2 because it is a lesser included offense of count 1. Respondent concedes this point, which we accept as proper. As such, we reverse count 2 but otherwise affirm.
Defendant does not challenge the sufficiency of the evidence supporting the jury’s convictions. As such, set forth below are those facts taken in the light most favorable to the verdicts but relevant to defendant’s contentions on appeal.
About 8:00 a.m. on Sunday, January 22, 2012, defendant was driving in Bakersfield on White Lane when he struck a vehicle carrying Tommy Fulce and his wife, Laura Fulce, at the intersection of Akers Road and White Lane. Tommy Fulce, who was born on December 7, 1939, was driving and entered the intersection on Akers Road on a green light. Defendant struck them when he entered the intersection on White Lane against a red light. As a result of the accident Laura Fulce died and Tommy Fulce was hospitalized for four days for blunt abdominal trauma, internal bleeding, back strain, contusions and abrasions. The emergency room treating physician described Tommy Fulce’s injuries as potentially life threatening. The Fulces were both wearing their seatbelts when the accident occurred.
Law enforcement responded to the accident scene and spoke to defendant, who had red, watery eyes and a faint odor of alcohol emanating from his person. Defendant did not seem rational or coherent when speaking with law enforcement at the accident scene.
Defendant was transported to a hospital where his blood was drawn approximately one hour after the accident. Defendant had a blood alcohol level of 0.17 percent.
Defendant’s passenger, Bender, also sustained injuries as a result of the accident. At trial, Bender testified defendant picked him up at his residence and drove him back to defendant’s residence at approximately 4:20 or 4:30 a.m. on the morning of the accident. Bender, who was already intoxicated from the night before, had had a few alcoholic drinks at defendant’s house. Bender thought defendant might have had “a shot or two” after Bender arrived at defendant’s residence, but he was not sure.
Defendant was driving Bender home when the accident occurred. Bender testified he passed out in defendant’s car on the way home and woke up in the ambulance. At the hospital, Bender informed a police officer he did not recall seeing defendant consume any alcoholic beverages while they were together.
Based on digitally recorded information downloaded from the air bag control module of defendant’s vehicle, defendant was traveling approximately 74 miles per hour at approximately two seconds before impact. Based on accident reconstruction, law enforcement believed defendant was driving between 68 and 79 miles per hour just prior to the accident. At the intersection in question, White Lane had a speed limit of 50 miles per hour.
According to the forensic alcohol analyst, Corina Anderson, alcohol in a person’s blood system in an amount greater than 0.05 percent can impair a motorist by reducing his ability to respond to new phenomena and slowing down the ability to make decisions. Based on “generalized elimination rates” and other factors, Anderson concluded defendant’s blood alcohol level at 8:00 a.m. on January 22, 2012, was between 0.18 and 0.20 percent. Anderson opined defendant’s blood alcohol level of 0.17 percent one hour after driving reflected impairment when he drove earlier. She also opined that a person of defendant’s general height and weight would have ...