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Name: People v. Calles
Case #: B225763
Court: CA Court of Appeal
District 2 DCA
Division: 5
Opinion Date: 10/05/2012
Summary

Where jury’s “timing experiment” did not stray beyond admitted evidence and was not of a character that was likely to improperly influence the verdict, trial court correctly denied new trial motion. Appellant was convicted of two counts of gross vehicular manslaughter, three counts of hit and run, and one count of second degree murder based on his act of driving onto a sidewalk at 40 miles per hour, hitting pedestrians, then backing over a woman who was stuck under his car, and leaving the scene. One factor regarding implied malice was the length of time that passed between initial impact and appellant backing up over a live victim, who thereafter died. The defense argued there was insufficient time for appellant to act with conscious disregard for life. The prosecution argued appellant knew she was under his car and the time that passed proved implied malice. After discovering that the jury conducted timing/event demonstrations during deliberations, appellant filed a motion for new trial based on juror misconduct, which was denied. Affirmed. Here, the jurors were not trying to duplicate the events by use of items outside the evidence. They were using a watch and discussing what events occurred during a given period of time based upon the admitted evidence. The difference between proper and improper jury experiments turns on whether those experiments “allow the jury to discover new evidence by delving into areas not examined during trial.” Appellant failed to establish that the timing/event demonstration conducted here went beyond the admitted evidence. Further, what occurred was unlikely to have improperly influenced the verdict.

Appellant may be punished for the gross vehicular manslaughter of one victim and the second degree murder of another victim, as Penal Code section 654 does not apply to crimes of violence against multiple victims. The trial court stayed execution of sentence for the gross vehicular manslaughter of victim Rocha (not the murder victim) under section 654. This was error as section 654 does not apply to crimes of violence against multiple victims. Gross vehicular manslaughter is a crime of violence.

There can be only one conviction for leaving the scene of an accident. Pursuant to section 654, the court stayed execution of three counts of leaving the scene of an accident (Veh. Code, § 20001, subd. (a)). This was error because leaving the scene of an accident is a separate act from causing the accident, so section 654 does not apply. However, there can be only one conviction for leaving the scene of an accident; the remaining counts must be dismissed.

Section 654 applies to enhancements based on appellant leaving the scene of the accident (Veh. Code, § 20001, subd. (c)) and infliction of great bodily injury (Pen. Code, § 12022.7, subd. (a)). The sentences in this case were subject to numerous enhancements based on appellant leaving the scene of the accident (Veh. Code, § 20001, subd. (c)) and infliction of great bodily injury (Pen. Code, § 12022.7, subd. (a)). This raised the question of whether section 654 applied to the enhancements. The Court of Appeal concluded that since no specific statute addressed whether the sentencing enhancements may be imposed and executed, section 654 should apply. The court analyzed whether there could be a sentencing enhancement for infliction of great bodily injury and/or hit and run for each victim in detail as to each count. The analysis turned on whether the appellant had already been sentenced for the conduct underlying the enhancement and whether the base term of the sentence was stayed under section 654.

The great bodily injury inflicted on two of the victims (Pen. Code, § 12022.7, subd. (a)) occurred “in the commission” of the specified crimes. Appellant contended that the great bodily injury inflicted on Medina and Rocha did not occur “in the commission” of the gross vehicular manslaughter of Santee, leaving the scene of the accident, and the second degree murder of Santee. The Court of Appeal disagreed. “In the commission of” has been given an expansive meaning. A reasonable trier of fact could find that the infliction of great bodily injury on Medina and Rocha and appellant’s act of leaving the scene of the accident and running over Santee were part of one continuous transaction. All three victims were simultaneously struck by the initial impact of appellant’s car and the entire scenario occurred over a period of a few minutes.

The trial court erred when it enhanced appellant’s second degree murder sentence based on appellant leaving the scene of the crime (Veh. Code, § 20001, subd. (c)). Section 20001, subdivision (c) imposes an enhancement if a defendant is convicted of a violation of Penal Code section 191.5 (gross vehicular manslaughter while intoxicated) or 192, subdivision (c)(1) (gross vehicular manslaughter). Appellant’s conviction was for a violation of section 187, subdivision (a) (murder), not for violations of section 191.5 or 192, subdivision (c)(1). Additionally, this enhancement allegation was not charged as to this count.