P. v. Clark

Filed 7/18/06 P. v. Clark CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

THIRD APPELLATE DISTRICT

(Sacramento)

While driving under the influence of methamphetamine, defendant Ernest Erastus Clark IV caused a head-on collision resulting in serious bodily injury. One year later, again while driving under the influence of methamphetamine, he caused another head-on collision, this time killing two people and seriously injuring another.

The jury found him guilty as charged of two counts of second degree murder (Pen. Code, § 187, subd. (a); counts 1 and 2),^[1] two counts of driving under the influence of a drug and neglecting a duty imposed by law which caused bodily injury (Veh. Code, § 23153, subd. (a); counts 3 and 4), and misdemeanor hit and run. (Veh. Code, § 20002, subd. (a); count 5.) The jury found true the allegation on count three that defendant caused death and bodily injury to more than one victim. (Veh. Code, § 23558.) Defendant pled guilty to petty theft (§ 484, subd. (a), count 6) and was sentenced to an aggregate prison term of 32 years to life plus eight months. The court dismissed counts five and six.

On appeal, defendant contends the murder convictions must be reversed because there is insufficient evidence of implied malice, the jury was misinstructed on the definition of malice, and the court denied his request for access to the jurors' addresses and phone numbers to prove juror misconduct. He further contends the judgment as a whole must be reversed because the deliberations were not conducted in accordance with law, and his sentence must be corrected because imposition of consecutive terms on the two counts of murder was an abuse of discretion and violated his right to a jury trial under Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely).

We find no error and shall affirm the judgment.

STATEMENT OF FACTS

A. July 6, 2002 Collision

On July 6, 2002, at about 4 p.m., defendant drove a pickup truck onto Highway 50 at Watt Avenue going eastbound. Driving in excess of 85 miles per hour, he cut in front of one vehicle and swerved back and forth without signaling. He then crossed all eastbound lanes, and almost struck the guardrail but made a corrective action and drove along the shoulder for a brief period, still traveling over 85 miles per hour. He then swerved back across five lanes of traffic, missed the Bradshaw Road exit, jumped a nearby embankment where he crashed though a cyclone fence, and headed eastbound on Micron Road.

Meanwhile, Hugh Estes was traveling northbound on Bradshaw Road in his pickup truck. As Estes turned onto Bradshaw Road between Florin Road and the Jackson Highway, he saw defendant's pickup truck coming straight towards him. Defendant's truck was moving at an excessive speed and he made no effort to move back into the southbound lane. Surrounded by a ditch on one side and traffic all around him, Estes could not avoid the collision. The impact shattered his windshield, lodging glass in his eye, and causing the steering wheel to hit him in the chest. Estes was later transported by ambulance to the intensive care unit of a nearby hospital where he was released the following day. Two weeks later, he underwent eye surgery to repair the damage caused by the glass.

Defendant was also transported to the hospital where a blood sample was drawn from him. He was treated for his injuries, which included punctured lungs and a broken leg.

B. Collision on July 20, 2003

One year later, on July 20, 2003, at approximately 12 p.m., Lavonne Gibson was driving northbound on Highway 160, a divided highway in Sacramento County, with three lanes in both directions. As she headed down the off-ramp onto Del Paso Boulevard, defendant entered the same off-ramp going the wrong direction. He was traveling at 70 or 80 miles an hour and she was forced to pull to the side to avoid being hit. Defendant took no evasive action.

He continued driving southbound against northbound traffic and passed another driver who was traveling in another lane. Shortly thereafter, his vehicle collided head on with a Honda Accord. The driver of the Accord, Ann Odell, was declared dead at the scene. Her head had been disconnected from her spine. After hitting the Accord, defendant's truck struck a Lincoln Town Car driven by Lesley Kibby. Kibby was driving northbound with her 81 year-old mother Ruth Ann Watkins. Kibby was pried out of her car with the â€