(Super. Ct. No. 09F02918) APPEAL from a judgment of the Superior Court of Sacramento County, Kevin J. McCormick, Judge. Affirmed in part and vacated in part.
The opinion of the court was delivered by: Murray , J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
In a court trial following her waiver of jury trial, defendant Rebecca Vela was convicted of second degree murder (Pen. Code, §§ 187, subd. (a), 189 -- count one), gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a) -- count two), and driving under the influence of alcohol causing bodily injury (Veh. Code, § 23153, subd. (a) -- count three). As to count three, the court found that defendant had suffered four prior convictions of driving under the influence. (Veh. Code, §§ 23152, subd. (a), 23550.) The court also found defendant guilty of a violation of Vehicle Code section 20001, subdivision (c), which was charged in the information as failing to provide information and rendering assistance at an accident scene. Defendant was sentenced to state prison for 15 years to life on count one, second degree murder. The remaining counts and enhancements were stayed pursuant to Penal Code section 654.
Defendant contends, and the Attorney General concedes, that the conviction on count three, driving under the influence of alcohol causing bodily injury, must be vacated because it is a lesser included offense of count two, gross vehicular manslaughter while intoxicated. Both parties also agree that the great bodily injury allegation charged in connection with count three should be stricken. The parties further agree that, at the least, the abstract of judgment must be modified to list the violation of Vehicle Code section 20001, subdivision (c) not as a separate count, but as an enhancement to count two, although defendant claims there was insufficient evidence to support the count two enhancement.
In the unpublished portion of this opinion, we agree that defendant's conviction of count three, driving under the influence of alcohol causing bodily injury, must be vacated and the associated great bodily injury enhancement must be stricken. We also agree that the conviction on count four should be vacated and the judgment should be modified to reflect sentencing as an enhancement to count two, violation of Vehicle Code section 20001, subdivision (c), fleeing the scene after committing gross vehicular manslaughter while intoxicated. In the published portion of this opinion, we construe the statutory language of Vehicle Code section 20001, subdivision (c), and conclude that the evidence is sufficient to support a true finding on that enhancement.
We modify the judgment accordingly and otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On April 18, 2009, around 10:30 p.m., Tina Nunez and her daughter were traveling on East Stockton Boulevard in Elk Grove. Nunez saw a black Acura turn onto East Stockton Boulevard from a cross street and travel ahead of her on the "wrong side of the road," i.e., on the opposite side of the yellow dividing line. Nunez was driving 40 to 45 miles per hour. The Acura was traveling faster and moving away from Nunez. When the Acura was two to three blocks ahead of Nunez, she saw it move into the correct lane and then lost sight of it. Seconds later, Nunez saw bright lights ahead of her. As she continued in that direction, Nunez noticed debris on the roadway. Seeing that the Acura had crashed into a sound wall, Nunez pulled over and unsuccessfully tried to telephone 911.
After trying to make the call, Nunez left her car to see if the person in the Acura needed help. Defendant was alone in the Acura and seated in the driver's seat. Defendant said she was okay. Nunez told defendant to stay in her seat and asked if defendant wanted her to call anyone; defendant said no. Defendant stepped out the driver's side door. As defendant stood there, she appeared dazed and confused. Nunez observed that defendant was "kind of leaving a little bit," but Nunez was not sure where defendant could go since there were so many people there. Nunez asked defendant to stay and asked other people to stop defendant.
Lance McDaniel, an off-duty Elk Grove police officer, drove by and saw what appeared to be an accident scene. A tree had been knocked down and dust was still settling. McDaniel left his car, walked toward the downed tree, and observed motorcycle parts and the deceased victim, Stanley Spaeth, entangled in the tree. McDaniel called 911 and reported the accident and apparent fatality.
Officer McDaniel observed the Acura crashed "through" a sound wall and assumed there had been a vehicle-versus-motorcycle collision. Officer McDaniel noticed defendant walk away from the driver's side of the Acura, around the rear of the Acura, and then in an easterly direction down Teresa. Defendant's path was in the opposite direction of the victim and away from her vehicle. Officer McDaniel observed that defendant walked "briskly" as she proceeded eastbound on Teresa. He ran after her, but lost sight of her for a brief moment after she turned a corner. He then observed defendant cross the street diagonally and walk southbound down another street. Officer McDaniel called out to defendant and eventually caught up with her between 30 to 45 yards away from the Acura.
Officer McDaniel asked if she had been driving the Acura and she said yes. He then asked her if there was anyone else in the Acura and she said no. Officer McDaniel, who was not in uniform, identified himself as a police officer and asked defendant for her driver's license. She said, "it's okay. I have it under control," and told McDaniel her identification was in her Acura. Defendant appeared to be intoxicated. She was unsteady, had bloodshot and watery eyes, slurred her speech, and smelled of alcohol. McDaniel also observed that defendant was coherent, but disoriented, and "definitely nervous."
By this point, Officer McDaniel heard sirens and realized that other officers were responding to the scene. He asked defendant to return with him to the scene. Defendant took a step backward, then turned away from Officer McDaniel and started to walk away. Because he suspected that defendant had been involved in the collision, and because the direction defendant was walking would have made it difficult for the responding officers to find them, Officer McDaniel grabbed defendant's arm and forcibly pulled her back to an area where responding officers could see them. After one police car responding to the scene passed them, Officer McDaniel yelled out at a second police car to get it to stop. McDaniel turned defendant over to the driver of that car, Officer Joaquin Farinha. Farinha then placed defendant in his patrol car. When Officer Farinha asked defendant if she was okay, defendant replied that she was, but then added, "but I wasn't driving."
Officer Farinha then contacted Nunez, who described what she had seen just prior to the collision. Nunez told Farinha she had been traveling 40 to 45 miles per hour and estimated that defendant was going 30 to 35 miles per hour faster. Nunez added that defendant had started to walk away from ...