People v. Spears CA3

Filed 11/9/22 P. v. Spears CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (San Joaquin) ----

THE PEOPLE,

Plaintiff and Respondent, C095418

v. (Super. Ct. No. LOD-CR-FE- 2020-0012028) TYSON PATRICK SPEARS,

Defendant and Appellant.

Defendant Tyson Patrick Spears drove into a tree while he was under the influence of drugs. His passenger, Austin Zachocki, died. A jury convicted defendant of vehicular manslaughter while intoxicated and misdemeanor driving under the influence of a drug, and the trial court sentenced him to 13 years in state prison. Defendant now contends (1) it was error for the trial court to deny his motion to suppress evidence of a blood draw taken after his arrest, (2) the trial court should not have imposed a five-year enhancement under Penal Code section 667, subdivision (a)1, (3) defendant’s trial counsel was ineffective in not objecting to the imposition of the five- year enhancement, (4) the conviction for misdemeanor driving under the influence must be stricken because it was a lesser included offense of vehicular manslaughter while intoxicated, (5) the matter should be remanded for resentencing under Assembly Bill

1 Undesignated statutory references are to the Penal Code.

1

No. 518 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 441, § 1), (6) the matter should be remanded for resentencing under Senate Bill No. 567 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 731, § 1), and (7) defendant is entitled to three additional days of presentence custody credit. We will reverse the conviction for misdemeanor driving under the influence, strike the five-year enhancement, vacate the sentence, and remand for full resentencing consistent with current sentencing law and a proper award of presentence custody credit. We will otherwise affirm the judgment. BACKGROUND A witness was driving southbound on Highway 99 in Lodi when a car driven by defendant passed him, wobbled within the lane, and suddenly veered off the road and into a tree. The witness stopped and helped defendant out of the car. Defendant was in pain and used the witness’s cell phone to make a call. The witness saw someone in the front passenger seat who appeared to be deceased. California Highway Patrol Officer Jesse Apolonio arrived at the scene of the accident soon after it happened. Defendant was lying on the asphalt, yelling in pain. The passenger, Austin Zachocki, was deceased. Defendant was transported to the hospital by ambulance. Officer Apolonio viewed surveillance video from a local business, and it appeared defendant’s car was traveling about 75 to 80 miles per hour when it veered off the road. Blood drawn from defendant at the hospital tested positive for methamphetamine, amphetamine, midazolam, and marijuana metabolites. An information charged defendant with gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a)—count 1) and driving under the influence causing bodily injury (Veh. Code, § 23153, subd. (f)—count 2). The information also alleged a prior serious felony conviction. (§§ 667, subd. (a); 1170.12, subd. (b).) A jury found defendant not guilty of the charged offenses but guilty of the lesser included offenses of