P. v. Graham

Filed 6/22/06 P. v. Graham CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Madera County. Jennifer R.S. Detjen, Judge.

Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Louis M. Vasquez and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

On the morning of April 20, 2003, Donovan Graham (defendant) was driving southbound on State Route 41 through Madera County when his car drifted into the northbound lane and struck Curtis Coleman's (Mr. Coleman) car in a head-on collision. Mr. Coleman died from injuries sustained in the accident. A jury found defendant guilty of gross vehicular manslaughter while intoxicated (Pen. Code,^[1] § 191.5, subd. (a)). The court sentenced defendant to a total prison term of 10 years eight months as follows: the upper term of 10 years for gross vehicular manslaughter in case No. MCR016782, plus eight months for felony evading a peace officer in case No. MCR03908A, a separate case in which defendant's probation was revoked based on his conduct in the manslaughter case.

In this consolidated appeal from the judgments of conviction, defendant raises issues relating to his conviction in case No. MCR016782. Specifically, defendant contends: (1) the court erred in denying his midtrial request for a continuance to secure the presence of a witness, (2) the evidence was insufficient to support his conviction for gross vehicular manslaughter while intoxicated because there was insufficient evidence he acted with gross negligence, and (3) the court's selection of the upper term sentence violated his constitutional rights under Blakely v. Washington (2004) 542 U.S. 296 (Blakely). We will reject defendant's contentions and affirm the judgment.

FACTS^[2]

The prosecution's case

The accident occurred just north of Road 209 at the base of the foothills between Fresno and Oakhurst in an unincorporated area of the county. At the location of the accident, State Route 41 is a two-lane road. The lanes are 11- to 12-feet wide and have eight-foot, paved shoulders. There is also a five-foot dirt shoulder on the northbound lane, and a 10-foot dirt shoulder on the southbound lane. The roadway is fairly flat and passing is permitted. The speed limit is 55 miles per hour.

California Highway Patrol (CHP) Officer Kevin Hickman arrived at the scene around 7:45 a.m., approximately 15 minutes after he was dispatched. Defendant's black Ford Explorer was lying on its side in the northbound lane, facing a southeast direction. Mr. Coleman's white Camry was on the shoulder of the northbound lane, facing north. As two off-duty medical personnel attended to Mr. Coleman, Officer Hickman crawled through the rear hatch of the Explorer and contacted defendant who was lying inside. Shortly thereafter, the fire department and other emergency personnel arrived and took over treatment of defendant.

When defendant was unable to produce identification, Officer Hickman went to look for it in the Explorer. He did not find any identification. But he did find a glass marijuana pipe on the right front floorboard. The pipe smelled of marijuana and there appeared to be some of the drug still in it. Officer Hickman did not smell freshly burnt marijuana in the Explorer, however, and could not determine when the pipe was last used.

The physical evidence examined in the ensuing investigation by members of the CHP's Multi-Disciplinary Accident Investigation Team (MAIT) established that the collision occurred three feet into the shoulder of the northbound lane. The evidence suggested defendant's Explorer left the southbound lane and drifted steadily across the northbound lane, before colliding with Mr. Coleman's Camry on the shoulder. There was no evidence that defendant ever applied his brakes or took any evasive action to avoid the accident.

In contrast, the Camry left two dark and distinct locked-wheel marks. The evidence suggested that Mr. Coleman perceived some type of threat ahead of him, steered to the right, and applied his brakes. It thus appeared he tried to take evasive action to get over to the shoulder, and then tried to stop as he skidded in a straight line without any steering control. The two vehicles collided head-on at a shallow angle of only 9- to 14- degrees, further suggesting the Explorer did not make any sharp turn immediately before the accident.

MAIT investigators determined that defendant was traveling 56 miles per hour at the time of impact, and the Camry was traveling 46 miles per hour at the beginning of the skid. An examination of the Explorer revealed no mechanical cause for the accident.

After the accident, defendant was transported to the hospital. A nurse in the emergency drew a sample of defendant's blood, which Officer Hickman then booked into evidence. The sample was later analyzed by Tim Appel (Appel), a forensic toxicologist with the California Department of Justice (DOJ), and tested positive for methamphetamine, amphetamine, morphine, Methadone, and marijuana.

Appel testified at trial regarding the various levels of drugs detected in defendant's blood sample. According to Appel, the level of Delta-9 THC (THC) in defendant's blood was 13.4-nanograms per milliliter. This level was higher than average. In most driving under the influence cases, the DOJ laboratory found THC levels of less than 10-nanograms per milliliter. If defendant's THC level was 13.4-nanograms per milliliter three hours after the accident when his blood sample was drawn, then it would have been â€