Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. KA078749, Robert M. Martinez, Judge.
Laurie Buchan Serafino, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
EPSTEIN, P. J.
Eduardo Ramirez appeals from the judgment entered following a jury trial in which he was convicted in count 1, of vehicular manslaughter while intoxicated with gross negligence (Pen. Code, § 191.5, subd. (a)) with the true finding that after he committed the offense, he fled the scene of the crime within the meaning of Vehicle Code section 20001, subdivision (c); in count 2, of driving under the influence of alcohol or drugs causing injury or death (Veh. Code, § 23153, subd. (a)); in count 3, of driving with a .08 percent blood alcohol causing injury or death (Veh. Code, § 23153, subd. (b)) with the finding that in the commission of counts 2 and 3 he personally inflicted great bodily injury within the meaning of Penal Code section 12022.7, subdivision (a); and in count 4, of leaving the scene of an accident in violation of Vehicle Code section 20001, subdivision (a). He was sentenced to prison for a total of 11 years, consisting of, in count 1, the middle term of six years plus five years for the enhancement pursuant to Vehicle Code section 20001, subdivision (c). Sentences on the remaining counts were ordered stayed pursuant to Penal Code section 654.
The record establishes that on April 7, 2007, at approximately 12:14 a.m., appellant was driving east on the 10 Freeway in a Mercury Villager minivan with his cousin Sergio Martinez in the front passenger seat when they were involved in a collision. Earlier, both individuals had consumed cans of beer, and Mr. Martinez estimated appellant had consumed approximately six or seven. As a result of the accident, Mr. Martinez had surgery on his leg, hand, collarbone and head. At the time of trial, he still had a cast on his foot, a scar, approximately three inches in diameter on the crown of his head and still suffered pain.
Anthony Ortiz was driving a tow truck and saw the minivan, travelling at approximately 90 miles per hour, without its lights on, pass his truck, squeeze between two cars in front of him, enter the lane closest to the center divider, then swerve into the next lane over. Mr. Ortiz then saw the minivan “‘shoot straight across’” the freeway. He saw a small car stalled, which appeared to have been hit, and the van stopped on a fence in trees on the right shoulder. Another car hit the small car in the roadway and then another car hit it. Mr. Ortiz attempted to help the occupants of the other cars and when he returned to the van, appellant, the person he had seen exit the passenger side of the van and then stand by the van, was gone. Mr. Ortiz noticed another individual in the back of the van who appeared to be “stuck.”
Seventeen-year-old Marissa Hooten was driving a Toyota RAV4 automobile and she noticed traffic was slowing down and that a car was rolled over on its side. She tried to maneuver her car to the side of the road, but could not so she came to a stop. After a second or two, her car was hit from behind. As a result of the collision, she suffered two lacerations to her head, a black and swollen left eye and her right arm was swollen. She received approximately nine staples for the lacerations and at the time of trial suffered from back pain. Her boyfriend, Jose Rodriguez, had been seated in the front passenger seat and he required surgery after the accident. Her friend Jonathan Arellano was seated in the back seat. He was “smashed up against the passenger seat” and pronounced dead at the scene. The cause of death was multiple blunt trauma as a result of the traffic collision.
Sergeant Joseph Sevilla of the West Covina Police Department responded to the area of the collision and received information that “a person of interest had walked away from the vehicle and was heading . . . eastbound towards Grand Avenue.” Approximately a mile from the collision, Sergeant Sevilla observed appellant walking. Appellant matched the description of the person who fled from the vehicle. He was injured with drying blood on his hands. He exhibited objective symptoms of alcohol intoxication, was unsteady, his speech was difficult to understand, his eyes were red and watery and he had a strong odor of alcoholic beverage on his person. Appellant was taken by ambulance to the hospital.
California Highway Patrol Officer Efrain Jimenez responded to the traffic accident and determined there were four vehicles involved in the collision. He determined that a Mitsubishi Mirage was proceeding straight in the number three lane when the minivan made an unsafe lane change into the path of the Mitsubishi and collided with that vehicle. The Mitsubishi stalled in the number four lane and the minivan continued towards the right shoulder area where it overturned and collided with a fence. The driver’s side of the minivan was buckled, so there was no way of exiting the vehicle from that side. Appellant’s passenger, Sergio Martinez, was found in the second row of seats in the minivan.
Officer Jimenez spoke to appellant, who was on a gurney in the emergency room of San Dimas Hospital. Appellant had an odor of alcohol, his speech was slurred and his eyes were red and watery. He had multiple cuts to his hands and cuts and abrasions to his face. When the officer asked him if he had been involved in a traffic collision, appellant at first was deceptive. He denied being involved in any traffic collision and stated he was walking to Pomona. When the officer told him not to lie, appellant admitted he was involved in a collision but stated he was the right front passenger in the vehicle. The officer had appellant’s shirt removed and observed an abrasion on appellant’s body from his left collarbone across his chest, indicating appellant had been seated on the left side of the vehicle. When asked why he left the accident, appellant first said he was going to get help for the injured and then said he was “scared.” Appellant said he had had seven Modelo beers between the hours of 6:00 p.m. and 10:00 p.m.
Officer Jimenez performed field sobriety tests on appellant. The breath analyzer test produced a reading of .116 at 2:26 a.m. and a reading of .099 at 2:28 a.m. Based on the tests, appellant was arrested.
Edmund Barley, a senior criminalist with the Los Angeles County Sheriff’s Department, testified that if a person drank six to seven Modelo beers between the hours of 6:00 p.m. and 10:00 p.m., at 12:14 a.m., the time of the accident, his blood alcohol level would range from .09 to .015. It was Mr. Barley’s opinion that anyone with a level above .08 would be unsafe to drive a motor vehicle.
Graphic photographs of the victim who died in the accident were deemed irrelevant.
The court conducted a hearing pursuant to Evidence Code section 402 regarding any statements appellant made to Sergeant Joseph Sevilla of the West Covina Police Department. The court concluded that there were no statements to suppress in that appellant did not respond to any questions.
Another hearing pursuant to Evidence Code section 402 was conducted to preclude statements appellant made while being treated at the hospital. The court concluded under the totality of the circumstances that appellant had not been in custody when he was questioned.
After review of the record, appellant’s court-appointed counsel filed an opening brief requesting this court to independently review the record pursuant to the holding of People v. Wende (1979) 25 Cal.3d 436, 441.
On February 13, 2008, we advised appellant that he had 30 days within which to personally submit any contentions or issues which he wished us to consider. No response has been received to date.
We have examined the entire record and are satisfied that no arguable issues exist and that appellant has, by virtue of counsel’s compliance with the Wende procedure and our review of the record, received adequate and effective appellate review of the order entered against him in this case. (Smith v. Robbins (2000) 528 U.S. 259, 278; People v. Kelly (2006) 40 Cal.4th 106, 112-113.)
DISPOSITION
The judgment is affirmed.
We concur: WILLHITE, J., SUZUKAWA, J.