People v. Westover CA6

I. INTRODUCTION

Defendant Gary Lee Westover, Jr. was convicted of second degree murder (Pen. Code, § 187, subd. (a); count 1), gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a); count 2), driving while under the influence of alcohol and causing injury (Veh. Code, § 23153, subd. (a); count 3), and driving with a blood alcohol level of 0.08 percent or more and causing injury (Veh. Code, § 23153, subd. (b); count 4). As to counts 3 and 4, a jury found true allegations that defendant personally inflicted great bodily injury on two victims (Pen. Code, § 12022.7, subd. (a)) and proximately caused injury to an additional victim (Veh. Code, § 23558). Defendant was sentenced to a term of 15 years to life for count 1, consecutive to a 10-year term for count 3 and the associated enhancements. The terms for the remaining counts and allegations were stayed. On appeal, defendant contends: (1) the trial court erred by refusing to give a pinpoint instruction to explain that, for purposes of CALCRIM No. 520, “an act is dangerous to human life when there is a high probability it will result in death;” (2) the trial court erred by modifying CALCRIM No. 520 to…