Friday, September 9, 2011
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C.A. Upholds Prison Sentence for Drunk Driver Who Killed Two
By KENNETH OFGANG, Staff Writer
The Fourth District Court of Appeal yesterday affirmed the 12-year prison term imposed on a drunk driver who killed a mother and her daughter in Riverside County, rejecting an argument that the sentence was incorrectly calculated.
Justice Patricia Benke, writing for Div. One, said Riverside Superior Court Judge Patrick Magers imposed a lawful sentence on Mark Davis Julian. The sentence consisted of a four-year prison term for the vehicular manslaughter of Terri Keller on May 13, 2008, plus enhancements totaling eight years for causing great bodily injury to her daughters Alexis and Amanda.
Prosecutors said Julian drank several 32-ounce beers before driving eastbound on Highway 74, approaching Briggs Road, and that he drove past stopped traffic and through a red light before crashing into Keller’s SUV. Keller was killed on impact; Amanda died the following January without regaining consciousness, and Alexis suffered injuries that required her to wear a back brace for several months.
Julian was recorded as having a blood alcohol level of .10 two hours after the accident; an expert testified that he likely had a blood alcohol level of .14 at the time of the crash.
Volleyball Practice
The Riverside Press-Enterprise reported at the time that Keller had just picked up 14-year-old Alexis, the older daughter, from volleyball practice at Heritage High School. Julian, age 30 at the time, suffered minor injuries.
Julian was convicted of manslaughter as to both Keller and Amanda, but sentence for Amanda’s manslaughter was stayed to avoid multiple punishments that would have violated Penal Code Sec. 654.
Benke said the trial judge properly applied Sec. 12022.7, which provides that when a defendant causes great bodily injury, the prison term may be enhanced by three years, or by five years if the victim was caused to “become comatose due to brain injury or to suffer paralysis of a permanent nature.”
The enhancement does not apply if great bodily injury is an element of the offense, nor may the enhancement be applied if the crime is murder or manslaughter and the underlying finding is that the defendant caused great bodily injury to that victim, the justice explained.
But when, as in this case, the defendant commits manslaughter and also causes great bodily injury to other victims as a result of the same conduct, the GBI enhancements do apply, the justice said.
“To hold Alexis’s injuries will support an enhancement but, because she died, Amanda’s injuries will not, would permit a defendant, such as Julian, to benefit to some extent from the fact one of his multiple victims died rather than survived,” Benke wrote. “We of course must reject such a grotesque interpretation of the statute.’
It was also proper, Benke wrote, for the trial judge to stay the four-year sentence to which Julian was subject for the manslaughter of Amanda, since her injuries were the basis for the five-year enhancement to the sentence imposed for the killing of her mother.
Power Outage
In an unpublished portion of her opinion, the justice said Magers did not abuse his discretion by excluding evidence of a power outage at the intersection of Highway 74 and Briggs Avenue the day before the collision. The defense contended the evidence was relevant because Julian told police that he had a green light when he went through the intersection.
But because there was no evidence of a malfunction on the day of the collision, Benke said, the trial judge reasonably concluded that the evidence was irrelevant, “time consuming and very confusing.” Any connection between the prior malfunction and the incident of May 13 was purely speculative, the justice said.
In another unpublished section, Benke said the admission of a photograph of Keller, her husband, and her daughters did not constitute reversible error. While the admission of “in-life” photographs is generally discouraged, she explained, any error was harmless “given the overwhelming evidence of Julian’s guilt and the undisputedly horrific nature of the losses inflicted on the victims’ family.”
The case is People v. Julian, 11 S.O.S. 5036.
Copyright 2011, Metropolitan News Company