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The People v. Yosselin Bertacco

May 9, 2013

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
YOSSELIN BERTACCO, DEFENDANT AND APPELLANT.



(Super. Ct. No. SF110257A)

P. v. Bertacco CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 trial court placed defendant Yosselin Bertacco on five years formal probation and ordered her to serve one year in county jail after a jury found her guilty of felony hit and run (Veh. Code, § 20001; unless otherwise designated, all statutory references that follow are to the Vehicle Code ), driving an unregistered motor vehicle (§ 4000, subd. (a)), and driving with a suspended license (§ 14601.1, subd. (a)).

On appeal, defendant contends (1) her conviction for felony hit and run is not supported by substantial evidence, (2) admission of evidence of her outstanding arrest warrant was error, (3) she is entitled to additional presentence custody credit, and (4) the booking fee was wrongfully imposed. As we will explain, defendant is entitled to additional presentence custody credit and the booking fee must be stricken. In all other respects, we affirm the judgment.

FACTS AND PROCEEDINGS

At approximately 3:00 p.m. on November 18, 2008, D.C. and K.M., both 12 years old, were walking home from school. As the girls entered the crosswalk at the intersection of Pershing and Picardy/Acacia, they were hit by a car driven by defendant. Defendant's driver's license had been suspended and her car registration expired. D.C. landed in the gutter. Defendant stopped the car momentarily and, through an open window, asked if the girls were okay. When neither girl responded, defendant drove away.

Alan M. was stopped at the intersection of Picardy and Pershing at the time of the collision. Although he did not see defendant's car hit the girls, he saw D.C. lying on the ground immediately after the collision. In spite of "No Parking" signs posted on Picardy, Alan M. parked his car near the sidewalk and helped K.M. pull D.C. out of the street and onto the sidewalk. He called 911 and instructed K.M. to run to a nearby fire station to get help, which she did. Emergency fire crews arrived on the scene within minutes, and firefighters began to treat D.C., who was in and out of consciousness.

Bobby J. and his son were sitting in a car waiting for the stoplight at the intersection to turn green when the collision occurred. Bobby J. heard an engine "rev really loud" and saw defendant's car hit D.C. and K.M. in the crosswalk. The collision caused one of the girls to spin around sideways and the other to roll up onto the hood of defendant's car, hit the windshield and then fall to the ground. Bobby J. watched as defendant "slowed down, picked up speed, slowed down, picked up speed" and drove away. When Bobby J. realized defendant was not going to stop, he made eye contact with her, made a u-turn, sped up and chased after her. After about a block, defendant made a right-hand turn onto Poplar Road. Bobby J. followed. Defendant drove approximately 50 feet down the street and parked her car. Bobby J. pulled up alongside defendant's car, made eye contact with defendant and told her she needed to go back to the accident scene. Defendant got out of her car and "hobbled a little bit, grabbed her leg as if it were hurt or something," and then headed back toward the intersection.

Bobby J. continued around the block and returned to the site of the collision, where he parked his car on the street. D.C. and K.M. were being tended to by emergency personnel. Bobby J. saw defendant and watched her for several minutes, but never saw her approach any of the emergency personnel. When bystanders asked what happened, Bobby J. heard defendant ask, "Que paso?" meaning, "What happened?" Bobby J. approached one of the fire personnel and identified defendant as the driver of the car that hit the victims.

When police arrived, Bobby J. told them where to find defendant's car. As police and paramedics walked in the direction of defendant's car, defendant walked in the other direction into the park and away from her car.

Stockton Police Officer Sean Raines arrived at the site where the accident emergency personnel were treating the victims. Officer Raines walked one block south on Pershing and turned onto Poplar. He found defendant's tan Chevrolet Impala parked four houses down. There was damage to the front of the car, the hood was dented and there was a crack in the windshield. Two firefighters were sitting on the sidewalk near the car. A minute or so later, Officer Barrera arrived. As he and Officer Raines spoke, defendant walked towards them. The officers asked defendant if the car was hers, and she told them it was. When they asked defendant if she had been involved in a collision, defendant said she had and added, "Yes, it is my vehicle, but I was just on the phone calling my family, and I didn't leave the scene or anything." Defendant seemed to lack interest in the situation and the questions being asked, and answered the questions in a "calm and evasive" manner.

Officer Barrera placed defendant in the patrol car to wait while Officer Raines returned to the accident scene to question emergency personnel and witnesses. Officer Barrera checked his computer system and discovered that there was an outstanding warrant for defendant's arrest. Once in custody, defendant admitted she was the driver of the car and that she hit the victims in the crosswalk. She claimed that when she hit the victims, she pulled her car over, got out, introduced herself to the girls and asked them if they were okay, helped one of the girls out of the road, then got back into her car and parked it in a safer spot so as not to interfere with traffic. Once re-parked, she got out of her car and asked an unknown bystander to call 911. However, she became nervous and left when fire department personnel arrived. She stated she "didn't mean to flee the scene and she was sorry for hitting the girls."

Defendant was charged with felony hit and run (count 1), driving an unregistered motor vehicle (count 2) and driving with a suspended license (count 3).

At trial, the defense investigator showed photographs and played a videotape of the area where the collision occurred, pointing out, among other things, the existence of "no parking" signs on Pershing.

At the conclusion of trial, defendant moved for dismissal of counts one and three. The court denied the motion. The jury found defendant guilty on all counts. The court denied defendant's motion for new trial and, following completion of a court-ordered diagnostic exam pursuant to Penal Code section 1203.03, suspended imposition of sentence, placed defendant on formal probation for five years and ordered that she serve one year in county jail. The court imposed restitution as determined by the probation department, a $200 restitution fine "with a ten percent surcharge," a $30 criminal conviction fee, and a $30 court security fee. The court awarded defendant 104 days of presentence custody credit. Defense counsel requested that the court also award defendant 104 days of conduct credit "in light of the recent law revisions," to which the court responded, "The jail calculates it. The jail calculates it."

Defendant filed a timely notice ...


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