(Los Angeles County Super. Ct. No. BA341253) APPEAL from a judgment of the Superior Court of Los Angeles County, Dennis J. Landin, Judge.
The opinion of the court was delivered by: Mosk, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Affirmed in part as modified, reversed in part, and remanded.
Defendant and appellant Bryan Calles (defendant) was convicted of two counts of gross vehicular manslaughter (Pen. Code, § 192, subd. (c)(1)*fn2 ), three counts of leaving the scene of an accident (Veh. Code, § 20001, subd. (a)), and one count of second degree murder (§ 187, subd. (a)). On appeal, defendant claims that certain errors occurred at trial. In the published portion of this opinion, we hold that the jury did not commit misconduct by using a watch to time a period in question in order to consider the events that could have taken place in that period. We also hold that the trial court erred in failing to dismiss certain counts and in connection with staying or failing to stay execution on defendant's sentence with respect to certain counts and enhancements. The trial court also erred in awarding defendant presentence custody credits and failing to impose a criminal conviction assessment. We reverse and remand the matter for sentencing consistent with this opinion, and otherwise affirm the judgment.
Juan Rodriguez worked with defendant at the Bullet Freight Company. On May 16, 2008, they were scheduled to work at 7:00 p.m. At approximately 5:00 or 6:00 p.m. that day, Rodriguez dropped off defendant at his car after they intentionally inhaled nitrous oxide for about three to four hours.
Gustavo Lezama also worked with defendant at Bullet Freight Company and also was scheduled to begin work at 7:00 p.m. on May 16, 2008. On that day, Lezama was driving east on East Washington Boulevard on his way to work. When stopped at a red traffic light, Lezama heard defendant shout Lezama's name, and Lezama saw defendant perspiring and waiving at him from his Honda Civic in the left adjacent lane. When the traffic light turned green, Lezama drove forward through the intersection, but defendant remained at the intersection for three or four seconds and continued waving while still looking in the direction of where Lezama's vehicle had been when he had been stopped at the traffic light.
Lezama then saw defendant's vehicle leave the intersection and follow about three to four car lengths behind Lezama's vehicle. When defendant had traveled approximately one-quarter mile, Lezama saw defendant drive into the middle divider lane as if to make a u-turn, and he heard the engine of defendant's vehicle "roar." Lezama, looking over his shoulder, saw defendant's vehicle accelerate, swerve across oncoming traffic, and turn toward the sidewalk striking four pedestrians. Lezama saw two of the pedestrians "fly up really high." One pedestrian landed on the top of a fence and the other slammed into a wall. Lezama also saw that a woman was under defendant's vehicle. Lezama did not hear any sound, such as a "screeching sound," that would have indicated that defendant pressed hard on the brakes before the impact. Lezama pulled over to the side of the road, approximately 15 feet from the accident and exited his vehicle to attend to the accident victims.
May 16, 2008, Michelle Pineda was walking on the sidewalk adjacent to East Washington Boulevard with her friends from work, Lisa Santee, Miguel Rocha, and Dominic Medina, when a car suddenly hit her friends. Following the impact, Rocha's body was near a pole and there was a pool of blood emanating from his head.
According to Pineda, as a result of the impact, Medina was impaled and suspended off the ground by spikes on a wrought iron fence. Lezama testified that the fence spikes entered Medina's abdomen and exited his chest. Daniel Dragotto, a Los Angeles City Fire Department paramedic, and others cut Medina down from the fence. Medina was alive and transported to the hospital with parts of the spikes still in his chest.
Lezama testified that following the impact, Santee was under the driver's side of defendant's vehicle "screaming for help loudly." Pineda observed that Santee's arms were unnaturally bent, as if they were broken.
According to Lezama and Pineda, Pineda continuously screamed "Oh God." Pineda noticed defendant stare at her. Defendant had both eyes open, and he appeared to be in a state of shock.
Faye Shen, the owner of a nearby business, saw the accident scene shortly after defendant's vehicle struck the pedestrians. Shen noticed that defendant's eyes were open and that defendant stared straight ahead for a "couple of minutes" without any reaction.
Neither Pineda nor Shen saw defendant get out of his car. Pineda testified that defendant never checked on the welfare of anyone who was in that area.
Just after Pineda started to walk to her nearby office to get help, defendant started his vehicle. She heard defendant's vehicle "rev up," the tires "screech," and Santee scream. Lezama saw defendant reverse his vehicle, which was on the sidewalk, over Santee; the tire rim exposed by a blown out tire on defendant's vehicle "grinded her." Pineda saw Santee "bouncing" from the sidewalk to the gutter.
Shen was about two feet from defendant when he started to back up, and she yelled at him, "Oh my God, please stop. Stop." Defendant, whose driver's side window was rolled down, ignored Shen's pleas and, without looking back to see if any cars were coming, continued to back up into the street, dragging Santee's body across the sidewalk and rolling over her body as it fell into the gutter. After defendant backed into the street, Lezama saw him drive away from the scene westbound on East Washington Boulevard.
Defendant's co-worker, Rodriquez, explained that as he was driving to work at Bullet Freight Company with two friends, he saw defendant driving in the opposite direction. Defendant's face was bloody, and his vehicle was "totaled" and driving "on its rims." Rodriguez executed a u-turn, caught up to defendant, and gestured for defendant to meet them at a nearby McDonald's. Defendant and Rodriguez made a series of turns and entered the McDonald's parking lot.
According to Rodriguez, the driver's door of defendant's vehicle was damaged, its window was shattered, and the roof and front fender were smashed. When Rodriguez and his friends asked defendant what had happened, defendant, who had blood "running from his forehead all the way to his cheeks," said nothing and was mumbling to himself. Defendant appeared to be in a state of shock. Rodriguez and his friends took items from defendant's vehicle and placed them in Rodriguez's vehicle, including a tank of nitrous oxide, papers, and clothing. Defendant entered Rodriquez's vehicle with Rodriquez and his friends, and they drove to the Bullet Freight Company so defendant and Rodriguez could commence work.
After defendant started his work shift, Alex Prosak, the assistant manager at Bullet Freight Company, asked defendant if he had been involved in an incident. Defendant responded that he was involved in a "hit-and-run accident" approximately six miles away near the 710 and 105 freeways. The intersection of the 710 and 105 freeways was not near the accident involving the pedestrians on East Washington Boulevard. Defendant responded to all of Prosak's questions, but his "mind seemed to be wandering."
Los Angeles Police Department Officer Jorge Gonzalez testified that he went to a McDonald's parking lot where he saw defendant's vehicle. Defendant's vehicle had two flat tires, the windshield and roof were caved in, the front bumper was almost completely detached, and the left portion of the one of the bumpers was missing. There was blood on the undercarriage, roof, seat, gear shift, and what was left of the windshield. The Los Angeles Police Department impounded defendant's vehicle and placed an agency hold on it.
Officer Gonzalez arrested defendant in the early morning of May 17, 2008. Defendant had a laceration on his forehead and complained of pain in his face and shoulder. Defendant received medical treatment at the county jail.
Los Angeles Police Department Collision Investigator Danny Balmaceda did not perform any mechanical analysis of defendant's vehicle, but he saw the vehicle and went inside it. He did not notice "anything odd" about the position of the steering wheel.
As a result of the accident, Medina's right lung was pierced, both of his legs and left forearm were broken, and his mouth was lacerated. Medina was hospitalized for about two months, undergoing surgery and follow-up care, and was still receiving physical therapy at the time of trial.
When Christopher Hare, a City of Los Angeles Fire Department Captain, arrived at the scene of the accident, Rocha was dead. Los Angeles County Coroner's Office Medical Examiner Kevin Young opined that Rocha died from the severe and multiple injuries he had sustained. Rocha had sustained massive skull and facial fractures which partially severed his brain stem. In addition, Rocha's pelvis, right femur, left tibia, and half of his ribs were fractured, and his lungs, spleen, and liver had been perforated.
When Benjamin Arnold, a paramedic for the City of Los Angeles Fire Department, arrived at the scene of the accident, Santee was still alive. He and other paramedics initiated life support procedures, but Santee "lost her pulse" and died while being transported to the hospital. According to Jeffrey Gutstadt, a deputy medical examiner who performed Santee's autopsy, testified that Santee sustained numerous injuries, including to her internal organs, and fractures to her collarbone, sternum, and all of her ribs. Gutstadt could not determine with "medical certainty" whether the initial impact with defendant's vehicle or the subsequent "rolling over action" when defendant's vehicle backed over Santee was the actual cause of her death.
Dr. Paul Herrmann, defendant's forensic expert, could not determine whether Santee's death was caused by her initial impact with defendant's vehicle or by the injuries she suffered when defendant backed over her. All Santee's injuries occurred when she was still alive. Dr. Herrmann could not determine the exact order of her injuries because they were "so numerous and . . . similar."
Dale Stephens, defendant's accident reconstruction expert, opined that defendant's vehicle was traveling at approximately 40 miles per hour upon impact with the pedestrians. After the incident, defendant's vehicle was originally impounded by the police and then towed to a storage facility where the police placed an agency hold on it. It was released from impound three months after the accident.
The Los Angeles County District Attorney filed a fourth amended information charging defendant with the gross vehicular manslaughter of Rocha and Santee in violation of section 192, subdivision (c)(1) (counts 1 and 2); leaving the scene of an accident, in violation of Vehicle Code section 20001, subdivision (a) (counts 3, 7, and 8); and the second degree murder of Santee in violation of section 187, subdivision (a) (count 9). The District Attorney alleged as to counts 1 and 2 that defendant fled the scene of a crime in violation of Vehicle Code section 20001, subdivision (c), and as to all counts that defendant inflicted great bodily injury in violation of section 12022.7, subdivision (a). Defendant filed Trombetta/Youngblood*fn3 motions concerning the destruction of evidence, which the trial court denied.
Following trial, the jury found defendant guilty on all counts, and found that the special allegations true. On count 1, the jury convicted defendant of the gross vehicular manslaughter of Rocha (§ 192, subd. (c)(1)), found that great bodily injury was inflicted on both Santee and Medina (§ 12022.7, subd. (a)), and found that defendant fled the scene of the crime (Veh. Code, § 20001, subd. (c)).*fn4 On count 2, the jury convicted defendant of the gross vehicular manslaughter of Santee (§ 192, subd. (c)(1)), found that great bodily injury was inflicted on both Rocha and Medina (§ 12022.7, subd. (a)), and found that defendant fled the scene of the crime (Veh. Code, § 20001, subd. (c)). On counts 3, 7, and 8, defendant was convicted of leaving the scene of an accident. (Veh. Code, § 20001, subd. (a).) Each leaving the scene of an accident count named a different victim upon whom great bodily injury was inflicted: Medina in count 3, Santee in count 7, and Rocha in count 8. On count 9, the jury convicted defendant of the second degree murder of Santee (§ 187, subd. (a)) and found great bodily injury was inflicted on both Rocha and Medina (§ 12022.7, subd. (a)). The trial court denied defendant's motion for new trial or modification of the verdict made, in part, on the ground of juror misconduct. The trial court stayed execution of sentence on all counts except count 9. On count 9, the trial court sentenced defendant to state prison for a term of 23 years to life, consisting of a term of 15 years to life; 5 years based on a purported allegation of fleeing the scene of a crime in violation of Vehicle Code section 20001, subdivision (c);*fn5 and 3 years based on the allegation of inflicting great bodily injury in violation of section 12022.7, subdivision (a).*fn6
The trial court ordered defendant to pay a $7,500 victim compensation and government claims board fee, a $3,659.72 restitution fee to Santee (presumably, her successors), a $200 restitution fee, a $200 parole revocation restitution fine, a $30 court security fee for each count, and orally imposed a $30 criminal conviction assessment as to each count for which defendant was convicted. The trial court awarded defendant 855 days of custody credit consisting of 744 days of actual custody credit and 111 days of conduct credit.
A. Motion Based on Lost Evidence
Defendant contends that the trial court erred in denying his Trombetta/Youngblood motions made on the ground the prosecutor failed to preserve defendant's vehicle three months after the accident. We disagree.
On review of a Trombetta/Youngblood motion, "we must determine whether, viewing the evidence in the light most favorable to the superior court's finding, there was substantial evidence to support its ruling. (People v. Griffin (1988) 46 Cal.3d 1011, 1022 [251 Cal.Rptr. 643, 761 P.2d 103].)" (People v. Roybal (1998) 19 Cal.4th 481, 510.)
"'"Law enforcement agencies have a duty, under the due process clause of the Fourteenth Amendment, to preserve evidence 'that might be expected to play a significant role in the suspect's defense.' (California v. Trombetta (1984) 467 U.S. 479, 488 [104 S.Ct. 2528, 2535, 81 L.Ed. 2d 413] [Trombetta]; accord, People v. Beeler (1995) 9 Cal.4th 953, 976 [39 Cal.Rptr.2d 607, 891 P.2d 153].) To fall within the scope of this duty, the evidence 'must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.' [Citations.] The state's responsibility is further limited when the defendant's challenge is to 'the failure of the State to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant.' (Arizona v. Youngblood (1988) 488 U.S. 51, 57 [109 S.Ct. 333, 337, 102 L.Ed.2d 281].) In such case, 'unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.' (Id. at p. 58 [109 S.Ct. at p. 337]; accord, People v. Beeler, supra, 9 Cal.4th at p. 976.)" [Citation.]' (People v. Catlin [(2001)] 26 Cal.4th [81,] 159-160.)" (People v. Farnam (2002) 28 Cal.4th 107, 166.)
"The presence or absence of bad faith by the police for purposes of the Due Process Clause . . . necessarily turn[s] on the police's knowledge of the exculpatory value of the evidence at the time it was lost or destroyed." (Youngblood, supra, 488 U.S. at pp. 56-57, fn. *; People v. Beeler, supra, 9 Cal.4th at p. 1000.) A due process violation occurs when the state is aware that the evidence could form a basis for exonerating the defendant and fails to preserve it as part of a conscious effort to circumvent its constitutional discovery obligation. (Trombetta, supra, 467 U.S. at p. 488; People v. Beeler, supra, 9 Cal.4th at p. 1000; People v. Zapien (1993) 4 Cal.4th 929, 964.)
Defendant's counsel declared in support of defendant's initial Trombetta/Youngblood motion that, "[o]n March 6, 2009, [the prosecutor] provided contact information for the Investigating Officer assigned to this case. [The prosecutor] explained the Investigating Officer would be able to provide assistance in gaining access to the vehicle. [¶] In March, 2009, [Stephens was] informed that the vehicle was no longer in the possession of the Los Angeles Police Department. [Stephens was] informed that the vehicle had been sold."
At the hearing on defendant's motion, Stephens testified that he was appointed to this case on behalf of defendant on January 29, 2009 as an accident reconstruction expert. He reviewed the discovery provided by the prosecution and the Los Angeles police department regarding this case, including the reports and a disc containing photographs of the scene and defendant's vehicle. The police put an agency hold on defendant's vehicle stored at the tow company's facility.
Stephens testified that he had been informed that the vehicle had been released or sold by the tow company, and he did not at any point have physical or actual access to the vehicle. He wanted to inspect the vehicle for possible brake and steering malfunctions because there was no indication of any pre-impact braking, and a photograph of the vehicle showed that the steering wheel was turned more than 90 degrees but the front tires are facing forward. Stephens testified on cross-examination that it is possible the purported misalignment of the steering wheel and the front tires could have occurred when the vehicle struck the curb.
The trial court denied the motion. It stated, "Looking specifically at whether or not the . . . exculpatory value was apparent at the time it was destroyed, I do note the police filed [a] form asking [that] a hold be put on the vehicle. For whatever reason that hold was not respected and the car has been destroyed. Looking at what the police knew at the time about this evidence, that the car apparently was at a complete stop in the lane, and then accelerated and hit the sidewalk, hitting the people on the sidewalk, thereafter the car going into reverse, making a u-turn, and traveling five miles, that cuts against whether or not there's any apparent exculpatory value that would permit the defense to sustain their motion in this issue. [¶] I think it's close, but taking everything here, based on what the cops knew, based on the law that's been presented on both--on the defense's motion, I'm going to deny the . . . motion."
Defendant's counsel told the jury during opening statement at trial that, "certain things . . . should have been done to properly secure the evidence in this case [that] were not done." During trial, Stephens testified that the vehicle was released from impound so he never had access to it or seen the vehicle other than in photographs, and it "[kept him] from getting to the root cause [of the incident]." Stephens testified that the vehicle was released from impound three months after the incident, and "it's really important for someone to look at the car and determine is it crash related, or was it a pre-existing or something that failed just prior to the crash. That's the importance of the vehicle."
Defendant renewed the initial Trombetta/Youngblood motion during trial, and it was denied by the trial court. The trial court stated that defendant, however, can argue to the jury that "further investigation should have taken place."
The trial court instructed the jury, "In this case you heard testimony regarding the failure of the Los Angeles Police Department to maintain as evidence the vehicle that [defendant] was driving when the alleged crimes occurred. You may make an adverse inference from the loss of this evidence that may be sufficient to raise a reasonable doubt."
Defense counsel told the jury during closing argument, "[The vehicle] was impounded for the purpose of being secured as evidence, and there was a law enforcement hold on that car. . . . The bottom line is that car was not secured as evidence. It was released, and Mr. Stephens, the accident reconstruction expert, was denied an opportunity to evaluate that car for any mechanical failure or analysis as to what the root cause of that crash may have been." Defense counsel also argued, "Failure to preserve physical evidence. In this case, you heard testimony regarding the failure of the Los Angeles Police Department to maintain as evidence the vehicle that [defendant] was driving when the alleged crimes occurred. You may make an adverse inference from the loss of this evidence. That may be sufficient to raise a reasonable doubt. . . . [¶] [T]here's an instruction that's going to be read to you that specifically says ...