P. v. Alexander

Filed 4/5/06 P. v. Alexander CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIRST APPELLATE DISTRICT

DIVISION THREE

A jury convicted defendant Valentino Alexander of vehicular manslaughter without gross negligence, and driving under the influence causing injury. As to the latter conviction, the jury found true that defendant had caused bodily injury to more than one person, but that only one of two persons suffered great bodily injury. In a separate proceeding, the jury also found true that defendant had two prior felony convictions and had served a prior prison term. The court sentenced defendant to a total prison term of eight years. Defendant contends he is entitled to a new trial because the prosecutor's closing remarks violated his rights to due process, a fair trial, and an impartial jury. Additionally, he contends the trial court's imposition of the upper term on the driving under the influence conviction violated the rule enunciated in Blakely v. Washington (2004) 542 U.S. 296 (Blakely). We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The charges against defendant arose from a December 24, 2003, car crash. Amanda Henson, the owner of the car, defendant and his younger brother Vonteak[1], and defendant's two teen-aged cousins, Frisco Mason and Alexander Lemons, were the known occupants of the car. At a jury trial held in May 2004, the prosecution presented the following evidence.

On December 24, 2003, defendant and Henson drove from Modesto to Oakland with the intention of spending Christmas at the home of defendant's mother, Gail Mason. Defendant was driving Henson's car, a 1993 Lexus sedan, because Henson was drinking and she was not supposed to drive because she was on probation for driving under the influence.

In Oakland, defendant made several stops. First, he stopped at his mother's home. He and Hanson then went to the home of Jessica Campos, who was Vonteak's girlfriend. After leaving the Campos house, Vonteak and defendant's two cousins got into the car to return to Gail's home. Defendant was driving and Vonteak sat in the front passenger seat. Henson, Frisco, and Lemons, sat in the back seat. Defendant stopped at a local store. Several people got out of the car and then returned shortly. About three or four minutes later, the car was involved in a single car accident.

Based upon the forensic evidence at the scene, the police opined that for some unknown reason, the car had swerved sharply to the right, and then back to the left in an apparent unsuccessful attempt to avoid colliding with a tree. After hitting the tree, the car rotated 180 degrees, struck another curb, and then collided with a light pole. The car again rotated another 180 degrees and came to rest by a curb. During the rotations of the car, Frisco and Lemons were ejected from the car, sustaining injuries consistent with persons not wearing seat belts. The posted speed limit on the road was 40 miles per hour. At the time of the crash, the car was traveling between 48 and 60 miles per hour, but most likely closer to 60 miles per hour given the condition of the car. The car was torn almost completely in half. The right front and rear passenger portion of the car was ripped at the post between the front and rear passenger doors. The right rear passenger door was also torn from the car. The car's only air bag, located at the driver's seat, had deployed in the collision. Defendant, Vonteak, Henson and Frisco survived the crash; Lemons was killed.

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