People v. Atwine CA3

Filed 2/26/24 P. v. Atwine CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Sacramento) ----

THE PEOPLE, C097345

Plaintiff and Respondent, (Super. Ct. No. 21FE005472)

v.

GERALD ATWINE,

Defendant and Appellant.

The prosecution charged defendant Gerald Atwine with vehicular manslaughter while intoxicated and two counts of driving under the influence causing injury. The prosecution further alleged a multiple victim allegation on all counts and a great bodily injury allegation on the driving under the influence counts. In aggravation, defendant was alleged to have committed crimes involving great violence, great bodily harm, or other acts disclosing a high degree of cruelty. Defendant represented himself at a nonbifurcated trial, and the jury found him guilty on all counts and found true all

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enhancements and the aggravating circumstance. Defendant was sentenced to an aggregate term of seven years, which included upper-term sentences. On appeal, defendant argues the trial court erred by failing to inform him of his statutory right to a bifurcated trial on the aggravating circumstance, or by failing to order bifurcation of the aggravating circumstance sua sponte. Defendant further argues the trial court abused its discretion when imposing upper-term sentences. We disagree and affirm. FACTUAL AND PROCEDURAL BACKGROUND In the early morning hours of November 8, 2020, defendant drove his car head on into another car, killing the driver and injuring the passenger. The crash occurred on a two-lane highway. Solid double yellow lines separated the lanes. A motorist testified he was traveling immediately behind defendant’s car prior to the crash and saw defendant’s car swerving into the path of oncoming traffic about eight separate times prior to the impact. Defendant testified he fell asleep while driving and awoke only after the collision. Defendant admitted at trial that he consumed alcohol and cannabis at a birthday party hours before the crash, and that he also consumed “two pills” of either “Tylenol or Advil” to sooth a headache. Defendant subsequently asked for a ride home from his friend who declined but offered to pay for defendant to be transported home. Defendant refused the offer thinking he “should be fine” because he had consumed his last drink nearly four hours prior to that conversation. Another motorist who witnessed the crash testified that defendant discarded alcohol bottles from his car to the side of the highway following the crash. California Highway Patrol Officer Colby Burford testified he discovered three empty beer bottles that “appeared fresh” on the shoulder of the road near the crash site while investigating the crash.