P. v. Belback

P. v. Belback

Filed 8/11/08 P. v. Belback CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, v. MICHAEL JAY BELBACK, Defendant and Appellant.

G038692 (Super. Ct. No. 06CF2519) O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, William L. Evans, Judge. Affirmed.

John E. Edwards, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey J. Koch, Deputy Attorney General, for Plaintiff and Respondent.

Michael Jay Belback appeals from a judgment after a jury convicted him of hit and run with permanent injury or death, vehicular manslaughter by unlawful manner of driving without gross negligence (failure to maintain straight path of travel within a lane), vehicular manslaughter by unlawful act without gross negligence (unsafe turning movement), and driving on a suspended/revoked license. Belback argues insufficient evidence supports his conviction for vehicular manslaughter by unlawful act without gross negligence (unsafe turning movement), and at sentencing the trial court should have stricken that count. Neither of his contentions have merit, and we affirm the judgment.

FACTS

Belback was driving a pickup truck (the truck) that smashed into the back of a parked semi-trailer truck (the semi). His passenger, David Willavage, was killed. Belback hit the semi with such force that Willavage was almost completely decapitated. There were various witnesses to the accident, and we will detail each of their versions of the incident.

Alan Degenhardtwas driving his vehicle when he saw the truck, which was 200 to 300 feet ahead of him in the same lane, veer to the right and collide with the back of the semi, which was parked. Degenhardt did not see the trucks brake lights or hear any noise indicating the driver applied the brakes. He could not accurately state whether the trucks driver was speeding. Degenhardt stopped his vehicle on the side of the road and remained inside. The driver got out of the truck and ran. Degenhardt called 911, and in his vehicle, he pursued the driver, who was on foot, to a nearby residence. Degenhardt waited for officers to arrive, and after they arrested Belback and brought him outside, he identified Belback as the person he saw driving the truck.

Joshua Garcia, 15 years old at the time of trial, saw a man driving the truck fast and swerving a little within its lane. He saw the semi parked on the opposite

side of the street from where he was standing. He turned away and heard a big bang[.] He turned back and saw the truck under the semi. He did not hear the sound of screeching tires before the crash. The driver got out of the truck, ran to the semis cab, ran back to the truck, and ran away.

Michael Morley (Michael) and his father, Martin Morley (Martin), were in the front yard when they heard a loud crash. They saw the truck had collided with the back corner of the semi, which was parked. Michael called 911. Michael saw the driver get out of the truck and look into the truck through the front windshield, Michael repeatedly asked the driver if he was okay, and the driver walked to the semis cab. The driver never responded and ran away. Neither Michael nor Martin heard the sound of screeching tires.

Officers arrested Belback at a nearby friends house. He was out of breath, his shirt was soaking wet with perspiration, [and] he . . . appeared to be disheveled . . . .

Officer Daniel Moreno conducted the accident investigation. He found no pre-impact skid marks. Based on his investigation, including reviewing witness statements, he opined the trucks driver caused the collision in violation of Vehicle Code section 22107.[1]

An information charged Belback with hit and run with permanent injury or death (Veh. Code,  20001, subds. (a), (b)(2)) (count 1), vehicular manslaughter by unlawful manner of driving without gross negligence (failure to maintain straight path of travel within a lane) (Pen. Code,  192, subd. (c)(2)) (count 2),[2] vehicular manslaughter by unlawful act without gross negligence (unsafe turning movement) ( 192, subd. (c)(2)) (count 3), and driving on a suspended/revoked license (Veh. Code,  14601.1, subd. (a)) (count 4).[3] The trial court denied Belbacks motion to dismiss count 2, concluding there was sufficient evidence to support that count. The court ruled the prosecutor could charge Belback with two counts of vehicular manslaughter under alternative theories.

At trial, the prosecutor offered the testimony of John Blevins, a toxicologist. Blevins stated the blood sample taken from Belback contained methamphetamine and amphetamine. On cross-examination, Blevins admitted the test did not indicate how long the substances had been in Belbacks system or whether he was under the influence of those substances.

In his defense, Belback recalled Officer Michael Kuplast, who was present when officers arrested him. Kuplast stated Belback did not appear to be under the influence of any narcotics. On cross-examination, Kuplast stated sweating and hyperactivity[4] were consistent with methamphetamine use.

Belback also offered the testimony of Officer James Berwanger, who saw Belback approximately one hour after the incident. Berwanger did not see any signs indicating Belback was under the influence of methamphetamine or alcohol. On

cross-examination, Berwanger stated Belback told hospital staff that as he was driving the truck something flew through the back window and scratched his eye. He agreed being excited and sweating are signs of methamphetamine use.

Finally, Belback testified on his own behalf. Belback explained he was a heavy equipment mechanic who was driving the truck with Willavage, his friend and coworker, after dumping some scrap metal. As Belback was driving about 45 miles per hour, something came into the cab of the truck, [he] felt came from behind [him], and enter [his] right eye, and [he] immediately took [his] hands off the [steering] wheel. After Belback cleared his eye, they were headed for the back of the semi. He grabbed the steering wheel, tried to apply the brakes, and maneuver around the semi, but they collided with it. He explained that from the time the object entered his eye to impact was two or three seconds. He looked over and saw Willavages head was torn off[] and blood was everywhere. Belback freaked . . . out[] and left to get help at a nearby friends house.

The jury convicted Belback on all four counts. The trial court sentenced Belback to the low term of two years on count 1. With respect to count 2, the court sentenced him to one year in county jail and stayed the sentence pursuant to section 654. The court struck the finding on count 3 because it was duplicative of count 2. The court sentenced Belback to 10 days on count 4.

When the prosecutor questioned the courts characterization of the jurys verdict on count 3 as a finding and suggested the court should stay the sentence pursuant to section 654, the court explained the prosecutor alleged two different theories in two different counts for the same crime. The court stated there could not be two convictions when there was just a difference in theories. The prosecutor argued there could be two convictions, but not sentences imposed on both. The court stated, Let the appellate court strike it then. The court sentenced Belback to one year in county jail on count 3 and stayed the sentence pursuant to section 654.

DISCUSSION

I. Insufficient Evidence-Count 3

Belback argues insufficient evidence supports his conviction on count 3 because there was no evidence he intentionally turned the trucks steering wheel. We disagree.

To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] If the circumstances reasonably justify the trier of facts findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment. [Citations.] The standard of review is the same when the prosecution relies mainly on circumstantial evidence. [Citation.] (People v. Valdez (2004) 32 Cal.4th 73, 104 (Valdez).)

Section 192, subdivision (c)(2), defines vehicular manslaughter as follows: Driving a vehicle in the commission of an unlawful act, not amounting to felony, but without gross negligence; or driving a vehicle in the commission of a lawful act which might produce death, in an unlawful manner, but without gross negligence. Vehicular manslaughter is a general intent crime. (People v. Butler (1986) 184 Cal.App.3d 469, 474; see In re Dennis B. (1976) 18 Cal.3d 687, 696.) Vehicle Code violations are general intent crimes. (People v. Coria (1999) 21 Cal.4th 868, 876-877.)

Here, there was sufficient evidence from which the jury could reasonably conclude Belback violated Vehicle Code section 22107 and, therefore, that he was guilty of vehicular manslaughter under the theory he drove the truck in the commission of an unlawful act, not amounting to felony, but without gross negligence, i.e., an unsafe turning movement. There was evidence Belback veered to the right as he drove the

truck and he did not apply the brakes. The truck veered to the right either because Belback turned the steering wheel to the right or he took his hands off the steering wheel and the truck went to the right on its own. From this evidence the jury could reasonably infer Belback violated Vehicle Code section 22107 and was guilty of count 3, or that he was simply negligent (he drove the truck in the commission of a lawful act which might produce death, in an unlawful manner, but without gross negligence, i.e., failure to maintain straight path of travel within a lane), and was guilty of count 2, or both. As we explain above, the prosecutor proceeded under both theories, which is permitted by statute ( 954).

Belbacks reliance on his own testimony that something flew in his eye and he took both his hands off the steering wheel to demonstrate he could not have turned the steering wheel is unpersuasive. The jury was free to reject his testimony, as it apparently did, even though it was uncontradicted. (People v. Johnson (1992) 3 Cal.4th 1183,

1231-1232.) There was sufficient evidence from which the jury could convict Belback of count 3.

Belback claims the jurys guilty verdicts on counts 2 and 3 are inconsistent because the jury found he acted negligently in count 2 and intentionally in count 3. [I]nconsistent verdicts are allowed to stand. (People v. Avila (2006) 38 Cal.4th 491, 600.) The question of identity of offenses charged in the same information or indictment is no longer determinative of the propriety of the verdicts; though actually inconsistent, section 954 sustains them . . . even if they are inconsistent in fact. [Citation.] . . . Any apparent injustice growing out of the quoted rule is obviated by application after [the] verdict of section 654. [Citation.] (People v. Polowicz (1992)

5 Cal.App.4th 1082, 1090 (Polowicz).)

II. Section 654

Without engaging in the standard section 654 analysis, Belback contends the trial court should have stricken count 3, again claiming there was no evidence supporting that conviction. Not so.

As the Polowicz court made clear, any injustice present as a result of inconsistent verdicts is remedied by the application of section 654. (Polowicz, supra,

5 Cal.App.4th at p. 1090.) As Belback recognizes, the trial court stayed the one-year county jail term on counts 2 and 3 pursuant to section 654, which was the proper disposition. (People v. Palacios (2007) 41 Cal.4th 720, 727 [[s]ection 654 protects against multiple punishment, not multiple conviction[s]].)

DISPOSITION

The judgment is affirmed.

OLEARY, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

ARONSON, J.

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[1] Vehicle Code section 22107 states: No person shall turn a vehicle from a direct course or move right or left upon a roadway until such movement can be made with reasonable safety and then only after the giving of an appropriate signal in the manner provided in this chapter in the event any other vehicle may be affected by the movement.

[2] All further statutory references are to the Penal Code, unless otherwise indicated.

[3] The information also charged Belback with offenses arising from an incident approximately one week earlier. The trial court granted Belbacks motion to sever the counts arising from the two incidents. The court also dismissed, upon Belbacks motion, the allegation he fled the scene of the crime as to count 2.

[4] Eric Vasquez, the friend whose house Belback ran to, testified Belback was jumping up and down when he arrived at his house.