LONG BEACH -- A state appellate court late Wednesday upheld a man's conviction on second-degree murder and other charges for the drunk driving and dragging death of a 13-month-old girl who was being pulled in a red wagon through a Long Beach crosswalk by her dad when she was struck by a pickup truck and dragged more than a mile.
In the ruling, a three-justice panel from the state's 2nd District Court of Appeal rejected the defense's contention that there was insufficient evidence of implied malice to support Neely Dinkins' murder conviction in Long Beach Superior Court.
FILE VIDEO: Man gets 36 years minimum in child's death
Kaylee Alvarez was killed and her 2-year-old brother Oscar was seriously injured on Sept. 11, 2009, when the Dodge Durango Dinkins was driving struck the red plastic Radio Flyer wagon being pulled by the children's father in a marked crosswalk as their mother walked behind. The family had the green light, and they other witnesses screamed in horror for Dinkins to stop after the wagon became lodged in the Durango's wheel well.
Dinkins was also found guilty on two special allegations of causing gross bodily injury to both Oscar and Kaylee.
Defense Attorney Charles Frisco argued Dinkins, who had a 0.20 blood alcohol content at the time of the accident, couldn't be guilty of murder because he was too drunk to know what he was doing. The legal blood alcohol limit is .08.
Deputy District Attorney Jennifer Cops countered that Dinkins knew he was putting the public in danger when he chose to drive drunk on a suspended license. He was combative with police and blamed the victims' mother, insisting they were jaywalking and that he had the right of way, she said.
The district attorney also noted Dinkins drove 300 feet before stopping the first time and that's enough to prove malice aforethought.
No one denied the horrific elements from the summer night in 2009. The two victims were riding in a red plastic Radio Flyer wagon as their parents took them on an evening stroll. At about 8:15 p.m., the family was in a crosswalk at Redondo Avenue at 10th Street and crossing with a green light when Dinkins turned the Durango left onto Redondo.
The truck knocked the parents down and rolled over the wagon. Dinkins then drove half a block, with sparks flying from beneath the SUV, before he stopped briefly. Witness Ira Cohen said he stepped into the street and threw his hands up to stop Dinkins. The braking dislodged Oscar, who tumbled out of the wagon.
Oscar later underwent multiple surgeries to repair injuries to his back and head.
Because Kaylee was buckled into her seat in the wagon she remained trapped as Dinkins took off a second time, all while the child's mother and others screamed for him to stop. Dinkins drove off at high speeds through small streets in Belmont Heights while a motorist followed and alerted the police to the drunken driver's route. He eventually stopped at his girlfriend's home in the 300 block of Wilton Avenue, where he was arrested by police.
He was sentenced in March 2011 to 36 years and eight months to life in prison.