P. v. Wiscowiche
Filed 10/25/10 P. v. Wiscowiche CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
JUDE BRITTON WISCOWICHE,
Defendant
and Appellant.
E049376
(Super.Ct.No.
RIF150656)
APPEAL from the Superior
Court of Riverside
County. Elisabeth
Siechel, Judge. Affirmed as modified.
Gregory L. Cannon, under appointment
by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney
General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons,
Assistant Attorney General, Scott C. Taylor and Collette C. Cavalier, Deputy
Attorneys General, for Plaintiff and Respondent.
In the
early morning hours on October 21,
2007, Eric Means was in his friend's car with several other friends
waiting in the drive-through line at a Del Taco restaurant in Riverside. As Means and his friends proceeded through
the drive-through, the car he was in was hit from behind by a car driven by
defendant Jude Britton Wiscowiche. When
Means got out of his friend's car to take a picture of defendant's license
plate, defendant's girlfriend got out of the car and pushed him. Defendant exited the car and punched Means so
hard he fell and hit his head on a cement planter. Means died two days later from blunt force
trauma.
Defendant was convicted of involuntary
manslaughter and assault with force likely to cause great bodily harm. An additional allegation that defendant
caused Means to become comatose was found true.
Defendant now contends,
1. The
trial court erred by refusing to instruct the jury on defense of another
because he was only trying to protect his girlfriend, who was carrying his
baby, when he hit Means.
2. The
failure to instruct the jury with Judicial Council of California Jury
Instruction (CALCRIM) No. 224 on circumstantial evidence reduced the People's
burden of proof and denied him his right to due
process and trial by jury.
3. The
assessment imposed pursuant to Government Code section 70373 must be stricken.
4. The
court security fee imposed pursuant to Penal Code section 1465.8, subdivision
(a)(1) must be reduced.
5. The
trial court's order directing defendant to participate in substance abuse
counseling while in prison pursuant to Penal Code section 1203.096 was an
unauthorized order.
We agree that the trial court erred
in ordering, rather than recommending, that defendant participate in substance
abuse counseling, and we will modify the judgment accordingly. We otherwise affirm the judgment.
I
PROCEDURAL BACKGROUND
A jury found defendant guilty of
involuntary manslaughter (Pen. Code, § 192, subd. (b) (count 1))[1] and assault with force likely to cause great
bodily injury (§ 245, subd. (a)(1) (count 3)).[2] It was also found true as to count 3 that
defendant inflicted great bodily injury causing the victim to become comatose
(§ 12022.7, subd. (b)). Defendant
was sentenced on the assault causing great bodily injury as the principal count
to the upper term of four years, plus a consecutive term of five years for the
injury causing the victim to become comatose, for a total of nine years in
state prison. Sentence on the
involuntary manslaughter was stayed pursuant to section 654.
II
FACTUAL BACKGROUND
A.
Ashleigh Escalera had been friends
with the victim Eric Means for four years.
In October 2007, Means had just turned 19 years old.
On October 21, 2007, Escalera was with Means and their
friends, Chelsea Parkinson, Ryan Perreira, and Lauren Ross. About 1:30
a.m., Escalera drove them to the Del Taco restaurant located at the
corner of Van Buren and Wood in Riverside. Escalera and the others were waiting in the
drive-through line when they were hit from behind by a car driven by defendant.
Escalera exited her car to inspect the damage. The light next to her rear bumper had been
broken, and there was â€
| Description | In the early morning hours on October 21, 2007, Eric Means was in his friend's car with several other friends waiting in the drive-through line at a Del Taco restaurant in Riverside. As Means and his friends proceeded through the drive-through, the car he was in was hit from behind by a car driven by defendant Jude Britton Wiscowiche. When Means got out of his friend's car to take a picture of defendant's license plate, defendant's girlfriend got out of the car and pushed him. Defendant exited the car and punched Means so hard he fell and hit his head on a cement planter. Means died two days later from blunt force trauma. Defendant was convicted of involuntary manslaughter and assault with force likely to cause great bodily harm. An additional allegation that defendant caused Means to become comatose was found true. Defendant now contends, |
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