LOS ANGELES – A state appellate court panel on Wednesday upheld a former Lancaster resident’s conviction on second-degree murder and other counts for a drunken crash that killed one of his passengers and seriously injured another passenger in October 2011.
The three-justice panel from California’s 2nd District Court of Appeal rejected the defense’s contention that there was jury misconduct in the trial of Jon Eric Tubo because a juror brought in the dictionary definition of malice during deliberations.
“Had any juror taken the dictionary definition into consideration, it would have increased the prosecution’s burden, not reduced it,” the appeals court panel found in a 20-page ruling.
Tubo contended that he was not driving at the time of the Oct. 14, 2011, crash on 10th Street East near Avenue G that killed Edward Berlin, 66, and seriously injured Jeremy Meier, who lived in the same mobile home park as Tubo
“Mr. Berlin was found deceased, still pinned under his seatbelt in the front passenger seat and therefore plainly could not have been the driver,” the appellate court panel found. “The other victim, Mr. Meier, testified he was in the back seat and defendant was driving. Medical evidence regarding the nature of his injuries was presented that corroborated his testimony. The record contained substantial, if not overwhelming, evidence of defendant’s guilt of second-degree murder.”
Along with murder, Tubo was convicted of one count each of DUI causing injury, driving with a blood-alcohol level in excess of 0.08 percent causing injury and driving with a suspended license. He was also convicted of two counts of leaving the scene of an accident.
The appellate court justices reversed and vacated Tubo’s conviction on one count of leaving the scene of an accident, agreeing with the defense that it was improper for Tubo to be charged with and convicted on two counts for the same conduct. But the ruling does not affect his 22-year-to-life prison sentence because the sentence on the second count had been stayed.
Tubo – who had gone to Berlin’s home to help Berlin prepare to move – asked to take Berlin’s new Pontiac Firebird for a drive. Tubo “gunned” the vehicle and reached 110 mph within a short period of time, despite Berlin and Meier yelling at him to slow down, according to the appellate court panel’s ruling.
“Near an intersection controlled by a stop sign, at which defendant did not slow down or stop, the car hit a bump in the road, went into a roll, and flipped over multiple times. The car came to rest upside down, some distance from the road,” according to the ruling.
“Defendant was injured but was able to walk away from the vehicle … Mr. Meier pleaded with defendant to drag him to the road to try to get help. Defendant dragged Mr. Meier a short distance and then abandoned him. Mr. Meier dragged himself the remaining distance and was eventually able to flag down a passing motorist.”
Tubo was found at his home in the mobile home park, with several family members and fire department personnel trying to render medical aid to him, according to the ruling.
Jurors heard that Tubo had a blood-alcohol level of 0.12 percent at the time of the Lancaster crash and that he had pleaded no contest to DUI on Sept. 2, 2011, just over a month before. At the time of his plea, he had been advised that he could be charged with murder if he drove drunk again and someone was killed, the appellate court panel noted.
[Information via City News Service.]
Previous related story: Fatal DUI crash in Lancaster