Wednesday, December 15, 2010 at 8:04 a.m.
Judge James P. Marion didn't believe Kenny Minh Phan's excuse for running away from a 2008 fatal near-decapitation accident he'd caused in Little Saigon after ignoring a red traffic light.
Phan claimed he'd fled the gruesome mess because he was in "shock" and feared his own brother's reaction to wrecking the car.
But Marion is not a fool.
The veteran judge thought Phan ran so that police would not discover he had been intoxicated, a belief bolstered by the fact that the injured occupant in Phan's car had been drunk and admitted that they'd been driving away from a bar before the incident at the intersection of Euclid and Westminster Avenue.
Phan's flight had drastically reduced his criminal exposure to charges of misdemeanor vehicular manslaughter without gross negligence and felony fleeing the scene of an accident after causing great bodily injury. Kill someone with driving drunk nowadays in Orange County and risk facing a murder charge.
Yet there was no definitive proof that a 28-year-old Phan--a man with a checkered past that included burglary and assault--had been drunk and so a jury convicted him of the two lesser charges.
Marion sentenced Phan to a stiff term of 10 years and eight months in a prison.
Phan appealed, arguing that the judge had misapplied the law.
This month, a California Court of Appeal sided with Phan. A three-justice panel reversed the court-approved finding that the defendant had caused great bodily injury while committing a serious felony: fleeing an accident.
It is a felony to knowingly leave an accident, but the appellate court determined that the conduct that caused the fatality, vehicular manslaughter, was a misdemeanor. According to the justices, Judge Marion should not have increased punishment by tying the severity of the injury to Phan's only known felony conduct: fleeing the scene.
"[Phan's] flight neither caused the injury nor made it worse," wrote Justice Eileen Moore, who wrote the opinion on behalf of justices Kathleen O'Leary and Raymond Ikola. "As a result, the injury was not inflicted during the defendant's subsequent felonious conduct--the flight. In fact, death preceded the defendant's felonious conduct."
The panel then reversed the conviction by officially concluding Marion had erred. As a result, the judge must re-open the case and issue a new prison sentence.
Interesting footnote: Phan worried that if he won this appeal, the judge might take the opportunity to respond with an even tougher punishment. But the appellate justices foreclosed that possibility. They ordered Marion to reduce the sentence.
And a word of caution for folks who drive old cars: The victim who was nearly decapitated had not buckled the lap belt in his old-fashioned seat belt restraining system--the ones automakers long ago stopped using. During the collision the victim's shoulder belt, which had been employed from the hip to the upper chest, served as a dull guillotine when it slid up to his neck.
--R. Scott Moxley / OC Weekly