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Name: People v. Nuno
Case #: D072152
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 08/13/2018

Defendant who was convicted of leaving the scene of an injury accident was not ineligible for probation under Penal Code section 1203, subdivision (e)(4) because he did not use or attempt to use a deadly weapon in connection with his flight. Nuno had a loud, contentious dispute with his auto mechanic over shoddy workmanship on his truck. As he left the repair shop, he ran over the mechanic’s leg, injuring him. He fled the scene. He drove for two minutes and then reported the accident to police. He was convicted of felony leaving the scene of an accident (Veh. Code, § 20001, subd. (a)), but was acquitted of assault and battery charges. The trial court found him presumptively ineligible for probation based on the use of a deadly weapon in connection with offense (Pen. Code, § 1203, subd. (e)(2)), and sentenced him to two years. He appealed. Held: Remanded for resentencing. Vehicle Code section 20001, subdivision (a) requires a person involved in a vehicle accident resulting in an injury to stop, provide identification, render aid, and report the accident to authorities. The act made criminal under the statute is not the collision but the subsequent flight. Under section 1203, subdivision (e)(2), except in unusual cases, probation shall not be granted to any person who used, or attempted to use, a deadly weapon upon a human being in connection with the perpetration of the crime of which he or she has been convicted. Thus, for Nuno to be presumptively ineligible for probation under section 1203.4, there must be a basis to find he used his car as a deadly weapon during his flight from the scene of the accident. Here, there was no evidence that Nuno used his vehicle as a deadly weapon while fleeing from the accident scene.