People v. Stankewitz

24 Cal.Rptr.3d 418

126 Cal.App.4th 796

The PEOPLE, Plaintiff and Respondent, v. William Robert STANKEWITZ, Defendant and Appellant.

No. F044592.

Court of Appeal, Fifth District.

February 9, 2005.

Certified for Partial Publication.^*

Rehearing Denied February 16, 2005.

Review Granted May 18, 2005.

A.M. Weisman, Diamond Bar, 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, Lloyd G. Carter and Michelle L. West, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

WISEMAN, J.

In this case of gross vehicular manslaughter while intoxicated and related charges, defendant contends that his constitutional right to due process of law was violated when police allowed the car he allegedly drove to be moved to commercial towing and salvage yards, and significantly altered, before he inspected it. While the failure to maintain the car in its immediate post-accident condition might have been shoddy investigatory procedure, we conclude that it did not rise to the level of a constitutional violation.

We also reject defendant's arguments that (a) the trial court erred in excluding certain evidence he offered to impeach a prosecution witness; (b) the evidence of his gross negligence was insufficient to support the charge of gross vehicular manslaughter while intoxicated; (c) the court abused its discretion in sentencing him under the three strikes law and imposing consecutive sentences; (d) the court committed error under Blakely v. Washington (2004) 542 U.S. 2531, 124 S.Ct. 2531, 159 L.Ed.2d 403 (Blakely) in imposing an upper term sentence and consecutive sentences; and (e) his aggregate sentence was cruel or unusual. We publish our discussion of the Blakely issues.

The People concede that the court miscalculated fees and penalties it imposed on defendant. We order these corrected and affirm the judgment in all other respects.

FACTUAL AND PROCEDURAL HISTORIES

William Stankewitz (defendant) and his aunt, Wilma Lewis, spent from the morning of June 21, 1999 to the morning of June 22, 1999, driving Lewis's Mercury Cougar in and around the Big Sandy Rancheria, where defendant and Lewis both lived, and in a larger area in Madera and Fresno counties. At around 9:00 or 10:00 o'clock on the morning of June 21, defendant and Lewis began drinking beer as they drove. Defendant's girlfriend and an elderly neighbor rode with them part of the day and also drank beer. The four of them purchased and consumed at least 38 cans of beer. Late that night, defendant and Lewis arrived, both intoxicated, at a relative's house in Fresno. They continued drinking there, and headed back toward the Rancheria in Auberry in the early morning.

On the way, at about 7:00 o'clock in the morning, they were involved in a fatal accident. In a rural area, at an intersection controlled by a stop sign, the Cougar hit another car broadside, killing the driver. Lewis was thrown from the car. As she lay unconscious on the ground, defendant knocked on the door of a nearby house and asked to use the phone. The resident called 911 and spoke to the operator and then handed the phone to defendant, who used it to call a friend. Defendant tried to hide in the yard of the house, and held his finger to his lips to warn the resident not to tell the police of his location. When officers found him, he told them he knew nothing about the accident and did not know the injured woman. He said he was in the area looking for farm work and had spent the night at the intersection sleeping in a van, which had since left. The police arrested him after finding documents bearing his name in the car. His blood alcohol level was .16 percent, double the threshold amount for driving under the influence. (Veh.Code, § 23152.)

Lewis was injured seriously in the accident. She suffered fractures of her left arm, left ankle, and eighth right rib, a dislocated left knee, and other wounds, including lacerations of her scalp and left leg. At the hospital, Lewis told officers that defendant was the driver.

Defendant appeared uninjured at the scene of the accident. Several days later, while in jail, he reported pain extending from the middle of his lower back to his right ankle and in one shoulder, which he attributed to the accident. He was treated with Motrin.

After the accident, the Cougar was moved to Ron's Towing, a commercial towing yard in Madera. There, it was kept inside a building until July 2, 1999, 10 days after the accident. On July 2, the police informed Ron's Towing that the evidence hold was released, and the car was moved outdoors. Ron's Towing covered the car's open windows with plywood to keep its guard dogs from entering, but otherwise the car was exposed to the elements. An employee of Ron's Towing testified at the first trial that the front bumper, which had come off in the accident, was placed inside the car.

As far as the record discloses, the car was not examined by anyone after the day of the accident until early August 1999, when an investigator from the District Attorney's office and two members of the California Highway Patrol's Multi-disciplinary Accident Investigation Team (MAIT) examined and photographed it. The goal of the MAIT investigation was to determine, based on the damage to the car and the injuries to defendant and Lewis, which of them was the driver.

At about the same time, an investigator with the Public Defender's office also viewed the car. He saw debris inside.

After the MAIT officers' inspection, CHP informed Ron's Towing that it no longer needed the car and it was "released from evidence." Ron's Towing sold the car to Romero's Towing, a dismantler in Los Banos, where it was moved on August 6 or August 7, 1999.

Defendant retained counsel to replace the Public Defender on August 26, 1999. The Public Defender's office incorrectly told defendant's new counsel that the car had been destroyed and was not available for inspection. Nevertheless, defendant's new investigator found the car at Romero's Towing in September 1999. It was outdoors, stacked atop another wrecked car.

Defendant's counsel arranged with the District Attorney's office to return with his investigator to Romero's Towing for an inspection. The inspection did not take place until January 4, 2000. By that time, the car had been moved to another place on the lot and altered in several ways since defendant's investigator first saw it in September: The entire front end had been cut off with a welding torch; the wheels were removed; the seat belts had been cut off; and the seat backs were damaged and in different positions than before.

Defendant was tried three times for his role in the accident. In the first trial, a mistrial was declared when the jury was unable to reach a verdict. After defendant was convicted in the second trial, the court granted his motion for a new trial based on ineffective assistance of counsel.

In the third prosecution, defendant was charged with the following offenses: (1) gross vehicular manslaughter (of the other car's driver) while intoxicated (Pen.Code, § 191.5, subd. (a)¹); (2) vehicular manslaughter (of the other car's driver) while intoxicated (§ 192, subd. (c)(3)); (3) driving under the influence of alcohol while concurrently committing another offense (i.e., running a stop sign) and causing bodily injury (to Lewis) (Veh.Code, § 23153, subd. (a)); (4) driving with a blood alcohol level of .08 percent or more while concurrently committing another offense and causing bodily injury (to Lewis) (Veh.Code, § 23153, subd. (b)); and (5) running a stop sign (Veh.Code, § 22450). The information also alleged three prior serious or violent felonies (all robberies) pursuant to the three strikes law.

At trial, defendant's defense was that Lewis was the driver and he was not. Both sides presented expert testimony on this issue. The two MAIT officers who examined the car testified that, based on the exterior damage to the car, they determined the direction in which the occupants moved inside the car during the crash. From that information, plus the damage to the interior of the car, the nature of the injuries to defendant and Lewis, and the fact that Lewis was ejected through the passenger window, they determined that defendant was sitting in the driver's seat and Lewis in the passenger seat at the time of the crash. Defendant's expert, Garrith Perrine, testified that he evaluated essentially the same information and reached the opposite conclusion. A third MAIT officer gave testimony to rebut Perrine's.

The jury found defendant guilty of gross vehicular manslaughter of the other driver while intoxicated (count 1); driving while under the influence and injuring Lewis (count 3); and driving with a blood alcohol level of .08 or more and injuring Lewis (count 4).

The court found the prior conviction allegations true and denied defendant's request to dismiss prior strike convictions. On count 1, it selected the upper term of 10 years as set forth in section 191.5, subd. (c), and increased it to 30 years to life pursuant to the three strikes law. (§ 667, subd. (e)(2)(A)(i).) On count four, the court imposed a consecutive three-strikes term of 25 years to life. (§ 667, subd. (e)(2)(A)(ii).) It stayed the sentence on count 3 pursuant to section 654.

DISCUSSION

I.-IV.^**

V. Sentencing issues under Blakely v. Washington

On June 24, 2004, after defendant filed his opening brief in this appeal, the United States Supreme Court decided Blakely, supra, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403. Defendant filed a supplemental brief addressing Blakely before the People's brief was due. He contends that the court committed error under Blakely both by selecting the upper term as the basis for the sentence on count one and by imposing consecutive sentences. The People filed no supplemental brief addressing Blakel...