P. v. Espiritu
A jury convicted Thomas Reyes Espiritu of gross vehicular manslaughter while intoxicated (Pen. Code,[1] § 191.5, subd. (a); count 1), driving under the influence causing injury (Veh. Code, § 23153, subd. (a); count 2), and driving with a measurable blood alcohol level causing injury (Veh. Code, § 23153, subd. (b); count 3). As to counts 2 and 3, the jury also found true allegations Espiritu had a blood alcohol concentration of 0.15 percent or more (Veh. Code, § 23578) and personally inflicted great bodily injury (§ 12022.7, subd. (a)).
The court sentenced Espiritu to six years in state prison for count 1 and, at the parties' request, stayed the convictions for counts 2 and 3 under section 654. The court additionally awarded him 200 days of presentence credit, consisting of 134 actual days and 66 conduct days under section 4019.
Espiritu appeals, contending the court prejudicially erred by admitting an irrelevant and unduly inflammatory autopsy photograph, admitting irrelevant and unsupported expert accident reconstruction testimony, excluding relevant evidence of the victim's narcotics use, and refusing to give a requested pinpoint instruction on the definition of gross negligence. Additionally, he contends the cumulative prejudicial impact of these errors deprived him of due process and a fair trial. He also contends we must reverse his convictions for counts 2 and 3 because they are lesser included offenses of count 1, and he is entitled to additional presentence conduct credit under the current version of section 4019.
The People concede and we agree we must reverse his convictions for counts 2 and 3. In all other respects, we affirm the judgment.
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