(Super. Ct. No. 08F01427)
The opinion of the court was delivered by: Nicholson , J.
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
The defendant was involved in the theft of a trailer and three road rage incidents, the last ending in a fatality. Convicted of second degree murder and several other crimes and sentenced to both determinate and indeterminate state prison terms, the defendant appeals.
On appeal, he contends: (1) there was insufficient evidence of implied malice to sustain the second degree murder conviction, (2) the trial court abused its discretion in denying his motion to sever the counts, (3) he was improperly convicted of two counts of hit and run for one incident, (4) he was improperly convicted of both stealing a trailer and receiving as stolen property the trailer's license plate, and (5) his stayed manslaughter conviction was improperly enhanced with two findings of great bodily injury,
We conclude that the third and fourth contentions have merit and therefore modify the judgment by striking a hit-and-run conviction and the receiving stolen property conviction. In all other respects, we find no error and therefore affirm the judgment as modified.
The defendant's crimes at issue in this case involved three incidents of road rage and one theft of a utility trailer, all occurring within about a week in October 2007.
James Holland was driving southbound on Watt Avenue when he noticed the defendant in a white Ford pickup approaching quickly from behind. The defendant went around Holland and just missed Holland's vehicle when pulling in front of him. Holland stopped behind the defendant at an intersection and yelled at the defendant to be more careful. The defendant yelled back something about his driving being the reason he had lost his license.
Holland began writing down the defendant's license plate number (Cal. license No. 7H16418), and the defendant backed the white pickup into Holland's vehicle. When the light turned green, they both took off. Holland caught up to the defendant, and the defendant veered to the right, hitting Holland's vehicle. The defendant pulled in behind Holland at another intersection and struck Holland's vehicle again.
Four days later, Betty Figlia was driving her vehicle north on Howe Avenue, with Sherry Lujan as a passenger. Figlia began to pull into a Valero gas station at the same time that the defendant, in the white Ford pickup, with a large trailer, was pulling out of the station. Figlia stopped because the defendant's truck was in the way, and she threw up her hands. The defendant pulled up beside Figlia's vehicle and asked her what her problem was. After they exchanged words, the defendant backed up then drove into the side of Figlia's vehicle. The defendant said, "How do you like that, bitch?"
The defendant drove away, and Figlia followed as Lujan dialed 911 on her phone. At an intersection, Figlia pulled in behind the defendant. The defendant backed the trailer into her car and then took off down a side street.
Three days after the Figlia/Lujan assault, the defendant was standing next to the white Ford pickup near Mineral Court at about four o'clock on a dark and foggy morning. A Honda Civic passed by, and someone in the Honda threw an egg at the defendant. Three young women were in the Honda: Saychelle Curry, Kailey McGagin, and Valerie Schmidt, with Curry driving. The young women had been celebrating Curry's 18th birthday, which celebration included drinking. The defendant got into the pickup and chased the Honda.
The defendant rammed the back of the Honda twice. A few blocks into the defendant's pursuit of the Honda, he was directly behind the Honda with his lights off. He passed the Honda and then stopped abruptly. Curry tried to pass the defendant, but he drove in front of her, so she turned around and headed in the other direction. The defendant again gave chase.
Curry and the defendant turned onto Winding Way and both passed Wanda Drewitz as she drove eastbound. The defendant passed Curry and moved in front of her. Curry appeared to lose control and veered across the road, hitting something on the left side of the road and then came back diagonally across all four lanes of Winding Way, ahead of the defendant. Drewitz observed these events, but she did not see where the Honda ended up. The defendant continued on Winding Way without stopping.
The Honda had crashed into a tree. The impact killed McGagin and critically injured Curry and Schmidt. Curry suffered traumatic brain injury and still cannot speak or walk. Schmidt suffered serious injuries to her face, head, and legs, but she recovered and was able to testify at the defendant's trial.
Evidence from the Honda's bumper and the bumper of the white Ford pickup indicated that the Ford had hit the Honda from behind.
The defendant made statements to his roommate, Jean Munyan, indicating that he had been involved in an accident. He appeared shocked when he saw a television news story about it. He told an acquaintance, Jeffrey Cooley, that he had chased a vehicle after he was egged and that he spun the vehicle out, causing the vehicle to crash. He said he thought he killed someone.
Also on October 13, 2007, and also on Mineral Court, a utility trailer was stolen from the Daby residence.
The defendant was detained on October 24, 2007. In the garage was a white Ford pickup that had been reported stolen a month before. The license plate on the back of the pickup and two more in the cab did not belong to the pickup. A later search of the defendant's storage space revealed three ...