The People v. Wieland

• Decision Date: 10 February 2011
• Docket Number: No. SF014576A,F058907,SF014576A
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. GLENN D. WIELAND, Defendant and Appellant.

THE PEOPLE, Plaintiff and Respondent,

v.GLENN D. WIELAND, Defendant and Appellant.

F058907

No. SF014576A

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

Filed: February 10, 2011

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

APPEAL from a judgment of the Superior Court of Kern County. Louis P. Etcheverry, Judge.

Peggy A. Headley, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and David A. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted Glenn Darell Wieland of: (1) two counts of gross vehicular manslaughter while intoxicated as to victims Timothy Retes and Trisha Walton (Pen. Code, § 191.5, subd. (a)) (counts 1 and 2); (2) three counts of felony driving under theinfluence causing injury as to three victims: Donovan Flynn, Kenny Walton and Jennifer Retes (Veh. Code, § 23153, subd. (a)) (counts 4, 5, and 6); (3) possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) (count 7); (4) misdemeanor being under the influence of methamphetamine (Health & Saf. Code, § 11550, subd. (a)) (count 8); (5) misdemeanor possession of drug paraphernalia (Health & Saf. Code, § 11364) (count 9); and (6) misdemeanor possession of not more than 28.5 grams of marijuana (Health & Saf. Code, § 11357, subd. (b)) (count 10).¹ The jury also found true the following enhancements: (1) three personal infliction of great bodily injury (GBI) enhancements as to Donovan Flynn, Kenny Walton and Jennifer Retes attached to counts 1 and 2 (Pen. Code, § 12022.7); (2) three multiple victim enhancements as to the same three victims attached to counts 1 and 2 (Veh. Code, § 23558); (3) two personal infliction of great bodily injury enhancements attached to counts 4, 5, and 6 (Pen. Code, § 12022.7); and (4) two multiple victim enhancements attached to counts 4, 5, and 6 (Veh. Code, § 23558.)

The trial court sentenced Wieland to a total prison term of 17 years, eight months, comprised as follows: (1) Count 1-the six-year midterm; (2) the GBI enhancements attached to Count 1-consecutive three-year terms for each enhancement, for an additional term of nine years; (3) Count 2-a consecutive two-year term (one-third the midterm); and (4) Count 7-a consecutive eight month term (one-third the midterm). The court also imposed concurrent jail terms on counts 8, 9, and 10. With respect to the remaining counts and enhancements, the court imposed midterm sentences and then stayed them pursuant to section 654.

On appeal, Wieland contends: (1) his convictions in counts 1 and 2 for gross vehicular manslaughter while intoxicated must be reversed because (a) there is insufficient evidence of gross negligence, and (b) the jury instruction given, CALCRIM No. 590, was flawed; (2) his convictions in counts 1, 2, 4, 5 and 6 must be reversed because (a) there is insufficient evidence he drove under the influence of a drug, and (b) the trial court erred in admitting into evidence the People's exhibit which purported to depict the vehicles' paths; and (3) the GBI and multiple victim enhancements must be reversed because the trial court failed to provide any instructions on them. We conclude the trial court's failure to instruct on the GBI and multiple victim enhancements requires reversal of the true findings on those allegations, but in all other respects, we affirm the judgment.

FACTS

On July 4, 2008, Jennifer and Tim Retes were attending a family gathering along with their children. Shortly before midnight, they left the gathering in two separate cars. Jennifer was driving the first car, a gray Kia Spectra, with her 15-year-old daughter, Alexys, in the front passenger seat and two other passengers in the car. Tim was following in another car, a black Oldsmobile Alero, with passengers Trisha Walton, Ricky Flynn, Kenny Walton and Donovan Flynn. The two cars drove eastbound toward Bakersfield on Stockdale Highway, a two-lane road with no lighting. Although it was dark, it was not foggy or rainy, and there was almost no traffic. Tim was following Jennifer at a distance of 50 to 100 yards. Jennifer was driving approximately 55 mph, while Tim was driving at a slightly slower speed.

As she was driving on a straight portion of the road, Jennifer told Alexys that Tim was going slowly and put her hand out the window to signal for him to hurry up. Jennifer glanced briefly at Alexys. When she turned her attention forward she saw a truck, driven by Wieland, come "right at [her]," head-on in her lane but with the tail of the truck in his lane, with no headlights or other lights on. Jennifer started to swerve to avoid him, but Wieland sideswiped her, striking her car on the driver's side door and scraping all the way to the car's rear. The impact spun Jennifer's car around several times and sheeventually came to rest in the same lane. Immediately after the impact, Jennifer saw Wieland's headlights turn on.

After the car stopped spinning, Jennifer jumped out and looked back towards Tim's car, but could not see anything. After the other passengers got out of the car, Jennifer took them back with her to Tim's car, where she saw that Wieland had crashed head-on into Tim's car, impacting the car right where Tim was sitting and collapsing the passenger compartment. Jennifer tried to pull Tim out of the wreckage, but he was pinned inside. Both Tim and Trisha Walton, who had been sitting in the middle backseat of Tim's car, died from their injuries. As a result of the crash, Jennifer, Donovan Flynn and Kenny Walton all suffered great bodily injury.

Officers found a usable amount of methamphetamine in Wieland's Ford F150 pickup truck and less than 28.5 grams of marijuana in a duffle bag next to the truck on the dirt shoulder. They also found a glass smoking pipe. Wieland, who was bleeding from his face, was pinned inside the truck. His pupils were constricted and he appeared calm. Wieland's blood tested positive for a significant amount of methamphetamine and its metabolites, sufficient to impair his ability to drive. His blood also showed trace amounts of marijuana which would not have affected his driving.

DISCUSSION

I. Sufficiency of the Evidence

Wieland raises two argument with respect to sufficiency of the evidence. He contends that there is insufficient evidence upon which the jury reasonably could find: (1) that he was driving under the influence of methamphetamine, thereby requiring reversal of his convictions in counts 1, 2, 4, 5, and 6, for gross vehicular manslaughter while intoxicated and driving under the influence causing injury; and (2) that his conduct was grossly negligent, thereby requiring reversal of his convictions in counts 1 and 2 for gross vehicular manslaughter while intoxicated.

We begin our review of Wieland's claims under the oft-stated standard of review on a claim alleging insufficiency of the evidence: "In assessing the sufficiency of the evidence to sustain a conviction, this court must view the entire record, including all reasonably deducible inferences, in the light most favorable to the judgment. The conviction will be upheld if it is supported by substantial evidence, i.e., evidence which is solid, credible and of reasonable value. [Citations.] It is only when the evidence, so viewed, would not permit any reasonable trier of fact to have found the defendant guilty beyond a reasonable doubt that the judgment will be reversed." (People v. Andersen (1994) 26 Cal.App.4th 1241, 1250-1251.)

A. Driving Under the Influence of Methamphetamine

Wieland contends there is insufficient evidence that he was driving under the influence of methamphetamine because the testimony of the People's expert witness, Bill Posey, was not supported by proper facts and reasons.

1. Trial Testimony

The forensic toxicologist, Bill Posey, testified that a blood sample taken from Wieland about two hours after the collisions showed his blood contained ".28 milligrams per liter" of D-type methamphetamine and ".06 milligrams per liter" of D amphetamine. Posey explained that "[t]he levels that were detected on the D methamphetamine w[ere].28 milligrams per liter, and it is a metabolite, which is a process the body goes through to break down methamphetamine, converts it to amphetamine, which was also present at.06 milligrams per liter."

When asked the probability of whether a person with such levels would be under the influence two hours before the blood was drawn, Posey explained that methamphetamine metabolizes slowly and has a half-life of between eight and 18 hours, which is the amount of time the body takes to remove half of what is present in the blood, so if someone had.2 milligrams per liter of methamphetamine, it would take them eight to 18 hours for that level to come down to.1 milligrams per liter. Posey furtherexplained: "Typically individuals with levels greater than two milligrams per liter of methamphetamine will show signs of impairment, primarily CNS stimulation with pupillary dilatation. The metabolite in the case — amphetamine is an active metabolite, which simply means it has a stimulating effect on the body as well. So not only will you have to look at the amount, but the combination of it with amphetamine is going to have an overall effect. [¶] In the case of marijuana, the active component was not detected, so the individual would not have shown any impairment. The metabolites is an indication of past use of the drug, in all likelihood, within about a 12-hour period."

Posey testified that the methamphetamine and amphetamine together...