People v. Escalera CA2/3

Filed 9/18/14 P. v. Escalera CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, B251439

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. PA072880) v.

ELIAS ESCALERA, SR.,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Hayden Zacky, Judge. Reversed in part with directions; otherwise affirmed.

Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION A jury found defendant and appellant Elias Escalera, Sr., guilty of gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a)). He was also convicted of driving under the influence of alcohol, causing injury (Veh. Code, § 23153, subd. (a),1 hereafter section 23153(a)) and of driving with a 0.08 percent or higher blood alcohol level causing injury (§ 23153, subd. (b), hereafter section 23153(b)). Because the section 23153(a) and section 23153(b) offenses are necessarily lesser included offenses of gross vehicular manslaughter, we reverse the conviction of those counts. FACTUAL AND PROCEDURAL BACKGROUND I. Factual background.2 On March 3, 2012, Dalia Rizo, Enrique Reyes (Dalia’s husband), Juan Reyes (Enrique’s 15-year-old brother), and Eusebia Pedrosa de Reyes (Enrique’s and Juan’s mother) were driving home in Enrique’s car.3 The car stalled on the 405 Freeway, so Enrique put on the emergency lights and pulled into the emergency lane on the right side of the freeway. Enrique and Juan got out of the car. Eusebia remained in the back seat. Dalia sat in the front. Escalera, who had been drinking beer that day, was driving his white Suburban on the 405 Freeway. Witnesses saw him driving erratically before he veered off the road and crashed into the Reyes’s car, killing Eusebia and injuring Enrique, Dalia, and Juan. At the scene, an officer smelled alcohol on Escalera’s breath and noticed that he had nystagmus in both eyes, which were red and glossy. His speech was slurred and thick. Escalera said he’d consumed 12-ounce cans of beer. A preliminary alcohol screening test showed a blood alcohol content of .23. A second test was .24. His blood was drawn at the hospital, and his blood alcohol concentration was .25 percent.