People v. McDarment CA5

Filed 6/11/21 P. v. McDarment CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F080230 Plaintiff and Respondent, (Super. Ct. No. PCF352657) v.

TIMOTHY MCDARMENT, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Tulare County. Michael B. Sheltzer, Judge. Benjamin Owens, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman, Harry Joseph Colombo, and Kimberley A. Donohue, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Poochigian, Acting P.J., Snauffer, J. and De Santos, J.

Defendant Timothy McDarment was convicted of several crimes, including gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a))1 and leaving the scene of an accident (Veh. Code, § 20001, subd. (a)), arising out of a deadly car crash he caused while driving under the combined influence of alcohol and methamphetamine. He was sentenced to a total of 22 years to life on the vehicular manslaughter count, which included a five-year enhancement for fleeing the scene of the crime (Veh. Code, § 20001, subd. (c)). The trial court also imposed a concurrent three-year sentence on the leaving the scene of an accident count, and McDarment contends this term should have been stayed pursuant to section 654. The People agree, as do we, and the judgment must be modified. STATEMENT OF THE CASE On September 10, 2019, the Tulare County District Attorney filed a fourth amended information charging McDarment with the following offenses: murder (§ 187, subd. (a); count 1), gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a); count 2), driving under the influence of alcohol and a drug causing injury (Veh. Code, § 23153, subd. (g); count 3), driving with a blood alcohol content over 0.08% causing injury (Veh. Code, § 23153, subd. (b); count 4), leaving the scene of an accident resulting in death or serious injury (Veh. Code, § 20001, subds. (a), (b)(2); count 5), and driving with a suspended license with a prior conviction (Veh. Code, § 14601.2, subd. (a); count 6). The information further alleged the following enhancements. As to count 2: fleeing the scene of the crime (Veh. Code, § 20001, subd. (c)) and three prior convictions for driving under the influence (§ 191.5, subd. (d)). As to counts 2, 3 and 4: causing bodily injury to more than one person (Veh. Code, § 23558). As to counts 3 and 4: personal infliction of great bodily injury (§ 12022.7, subd. (a)) and a prior conviction for