People v. Goslar

• Decision Date: 24 February 1999
• Docket Number: No. D028216,D028216
• Citation: 82 Cal.Rptr.2d 558,70 Cal.App.4th 270
• Court: California Court of Appeals Court of Appeals
• Parties: , 1999 Daily Journal D.A.R. 1811 The PEOPLE, Plaintiff and Respondent, v. Daniel Jason GOSLAR, Defendant and Appellant.

Page 558

82 Cal.Rptr.2d 558

70 Cal.App.4th 270, 1999 Daily Journal D.A.R. 1811

The PEOPLE, Plaintiff and Respondent, v. Daniel Jason GOSLAR, Defendant and Appellant.

No. D028216.

Court of Appeal, Fourth District, Division 1, California.

Feb. 24, 1999.

Review Denied May 26, 1999.

Certified for Partial Publication. ¹

Rehearing Denied March 16, 1999.

[70 Cal.App.4th 272] R. Charles Johnson, Petaluma, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, William M. Wood and Sara Gros-Cloren, Deputy Attorneys General, for Plaintiff and Respondent.

BENKE, J.

Daniel Jason Goslar pleaded guilty to driving without a license. He was convicted of two counts of gross vehicular manslaughter while intoxicated, with true findings on allegations of injury to multiple victims within the meaning of Vehicle Code section 23153, subdivision (a), and one count of causing injury while driving under the influence of alcohol, with true findings on the same allegations of injury to multiple victims and the infliction of great bodily injury within the meaning of Penal Code section 12022.7, subdivision (a). Goslar was found not guilty of causing injury while driving with a blood alcohol level of 0.08 or greater.

Goslar was sentenced to a prison term of seven years. He appeals, arguing that Vehicle Code section 23140, making it a unlawful for a person under 21 years of age to drive with a blood alcohol level of .05 or more, denies equal protection and is void for vagueness. He also argues various instructional errors. We reject his arguments and affirm the judgment.

FACTS

A. Prosecution Case

In March 1996, appellant, who was then 19 years of age, and his friend Jorge Gallegos were Marines stationed in Twentynine Palms. On the morning of March 17, 1997, they drove to Tijuana, Mexico, in Gallegos's At about 6 a.m. on March 17, 1996, Oscar Navarro, his 15-year-old daughter Lourdes, his 11-year-old daughter Marissa and his 10-year-old son Marco were driving north on Interstate 5 through Oceanside on their way to Magic Mountain. The Navarro car broke down and stopped in the center divider of the freeway. Oscar turned on his emergency flashers and told the children to stay in the car while help came.

automobile. The men parked at the border, walked into Mexico, went to nightclubs and drank beer. Several hours later they returned to the car. Gallegos, who drank more beer than appellant, felt too drunk to drive. Appellant stated he was not drunk and would drive. It was agreed the men would stop at the first motel they saw in San Diego. Gallegos got into the car and fell asleep almost immediately. Appellant drove but did not stop in San Diego.

Between 6 and 7 a.m., Jeffrey Risley was driving north at 70 miles per hour in the fast lane of Interstate 5 through Carlsbad. He noticed a car in his lane approaching quickly from behind and moved over. The car, driven by appellant, passed him going at what Risley estimated was 90 miles per hour. Risley noticed appellant weave first over the "bots dots" dividing the fast lane from the lane to the right and then over the dots marking the center divider. Appellant went over a hill and Risley lost sight of him. Risley believed appellant was either intoxicated or fatigued.

Moments later, appellant came up behind a car driven by Michael Cartright. Cartright was startled by appellant's speed which he estimated at between 100 and 120 miles per hour. Appellant's car started to move to the right and in response, Cartright, concerned at the rate of closure, began moving to the left to avoid him. Appellant then moved to the left, Cartright moved to right and appellant went by him. As he did so, Cartright could hear the engine of appellant's car turning at very high revolutions. Cartright then saw appellant crash into the rear of the Navarro vehicle. The Navarro car burst into flames. Lourdes and Marissa died from severe head and neck injuries, Marco and Oscar were badly injured.

Appellant, who was slightly injured in the crash, admitted to a highway patrol officer that he was the driver of the car involved in the collision and that he had no driver's license. The same officer contacted appellant later in the morning at the hospital. Appellant stated he had been "partying" in Tijuana all night and was on his way to Santa Ana. The last thing he remembered before the crash was driving 70 miles per hour in the number two lane and falling asleep.

The officer smelled a strong odor of alcohol on appellant. Appellant's eyes were red and watery and his speech thick. The officer concluded appellant was under the influence and placed him under arrest.

After waiving his Miranda rights, appellant told the officer he last slept the night before and had three or four hours of sleep at that time. Appellant stated he drank three beers in Tijuana between 1 and 5 a.m., that he last ate at 7 p.m. the day before and that he was not feeling any effects from the alcohol.

It was the officer's opinion the collision was caused by appellant driving under the influence, over the speed limit and making an unsafe turning movement.

Two tests performed on a blood sample taken from appellant at 9:28 a.m. on March 17 rendered blood alcohol levels of 0.047 and 0.048.

An expert testified the ability to drive is significantly impaired with a 0.05 blood alcohol level. The expert stated an inexperienced driver's ability to drive would be affected sooner by the intake of alcohol. Based on appellant's blood alcohol levels at 9:28 a.m., the expert estimated that at the time of the accident appellant's blood alcohol level was between 0.085 and 0.099 and that he was under the influence of alcohol at that time. The expert further opined that even if appellant's blood alcohol level at the time of the crash had been 0.047, he would have been under the influence.

B. Defense Case

Appellant testified and stated he had four beers while in Tijuana and that he was not A forensic toxicologist testified appellant's blood alcohol level at the time of the accident was 0.04 to 0.05. The expert opined that appellant was not impaired by alcohol at the time of the collision.

feeling the effects of the beers when he was driving. Appellant stated he was not a licensed driver, had little experience driving and had never driven on a freeway before. At one point while driving that evening, appellant dozed off and drove over the dots dividing lanes. Appellant stated his last recollection before the accident was driving at 70 miles per hour in Carlsbad.

An accident investigator concluded appellant's vehicle was traveling at "freeway speeds" but not over 100 miles per hour when the accident occurred.

DISCUSSION

A. Equal Protection and Vagueness Claims

Appellant argues his two convictions for Penal Code section 191.5, subdivision (a), gross vehicular manslaughter while intoxicated, based on a violation of Vehicle Code section 23140, must be reversed because the section denies him equal protection and is void for vagueness.

In pertinent part, Penal Code section 191.5, subdivision (a), states: "Gross vehicular manslaughter while intoxicated is the unlawful killing of a human being ..., in the driving of a vehicle, where the driving was in violation of [Veh.Code] Section 23140 [person under 21 years of age driving with blood-alcohol concentration of 0.05 or more], 23152 [subd. (a), driving under the influence of an alcohol beverage; subd. (b), driving with blood alcohol concentration of 0.08], or 23153 [driving under the influence of an alcohol beverage, or with a blood alcohol concentration of 0.08 and doing any act forbidden by law which causes injury]."

Vehicle Code section 23140 states: "(a) It is unlawful for a person under 21 years of age who has 0.05 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.

"(b) A person may be found to be in violation of subdivision (a) if the person was, at the time of driving, under the age of 21 years and under the influence of, or affected by, an alcoholic beverage regardless of whether a chemical test was made to determine that person's blood-alcohol concentration and if the trier of fact finds that the person has consumed an alcoholic beverage and was driving a vehicle while having a concentration of 0.05 percent or more, by weight, of alcohol in his or her blood." ²

1. Equal Protection

Appellant argues he was denied equal protection of the law because Penal Code section 191.5, subdivision (a), allowed his conviction for vehicular manslaughter when he, a person under 21 years of age, had a blood-alcohol concentration of 0.05 but allows conviction of a person over 21 years of age only if that person's blood-alcohol concentration is 0.08 or higher.

a. Law

The guarantee of equal protection embodied in the state and federal Constitutions "prohibit[s] the state from arbitrarily discriminating among persons subject to its jurisdiction, and require that classifications between those to whom the state accords and withholds substantial benefits must be reasonably related to a legitimate public purpose." (In re Kapperman (1974) 11 Cal.3d 542, 545, 114 Cal.Rptr. 97, 522 P.2d 657; Dant v. Superior Court (1998) 61 Cal.App.4th 380, 388, 71 Cal.Rptr.2d 546.)

To demonstrate a denial of equal protection, it must first be shown that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner. (Guevara v. Superior Court (1998) 62 Cal.App.4th 864, 871, 73 Cal.Rptr.2d 421.) "The use of the term 'similarly situated' in this context refers only to the fact that ' "[t]he Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same"....' [Citation.] 'There is always some difference between the two groups which a law treats in an unequal manner since an equal protection...