P. v.
Bertacco
Filed 5/9/13
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NOT TO
BE PUBLISHED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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL
OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
----
THE PEOPLE,
Plaintiff
and Respondent,
v.
YOSSELIN BERTACCO,
Defendant
and Appellant.
C064349
(Super. Ct. No. SF110257A)
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
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 Parkingâ€
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?â€
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.â€
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.â€
Defendant
filed a timely notice of appeal.
Discussion
I
Defendant contends that her
conviction for violating section 20001, subdivision (a), is not supported by
sufficient evidence that she failed to perform the duties required of her as a
matter of law.
Section 20001, subdivision (a)
requires that the “driver of a vehicle involved in an accident resulting in
injury to a person, other than himself or herself . . . shall immediately stop
the vehicle at the scene of the accident and shall fulfill the requirements of
Sections 20003 and 20004.†Section 20004
deals with a driver’s duty upon the death of a victim and is therefore not
applicable here.
Section 20003, subdivision (a)
requires the driver to “give his or her name, current residence address, the
names and current residence addresses of any occupant of the driver’s vehicle
injured in the accident, the registration number of the vehicle he or she is
driving, and the name and current residence address of the owner . . . to any
traffic or police officer at the scene of the accident,†and requires the
driver to “render to any person injured in the accident reasonable assistance,
including transporting, or making arrangements for transporting, any injured
person to a physician, surgeon, or hospital for medical or surgical treatment
if it is apparent that treatment is necessary or if that transportation is requested
by any injured person.â€
The crime of hit and run consists of
a driver leaving the scene of an accident in which he had been involved with
actual or constructive knowledge that a person was injured, even if the driver
was not at fault in causing the accident.
(See People v. Harbert (2009)
170 Cal.App.4th 42, 52-56; People v. Braz
(1998) 65 Cal.App.4th 425, 432.) As we
have said before, “Although a violation of section 20001 is popularly
denominated ‘hit-and-run,’ the act made criminal thereunder is not the
‘hitting’ but the ‘running.’ †(
139, 148; see People v. Powell (2010)
181 Cal.App.4th 304, 316 [the criminal conduct “is not the causing of an
accident or injury but leaving the scene without presenting identification or
rendering aidâ€].)
In determining the sufficiency of
the evidence to support a conviction, we review 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. (People
v. Valdez (2004) 32 Cal.4th 73, 104.)
We presume the existence of every fact in support of the evidence that
the trier of fact could deduce from the evidence. (People
v. Lee (1999) 20 Cal.4th 47, 58.)
Inferences reasonably deducible from the evidence constitute substantial
evidence. The inferences need not be the
only ones the evidence supports, and the evidence of the ultimate fact in
question need not be strong. (
546; People v. Johnson (1980) 26
Cal.3d 557, 576.)
There is substantial evidence to
support defendant’s conviction for hit and run.
According to K.M., defendant hit D.C. and K.M., then stopped momentarily
to ask if they were okay, and then drove away when neither girl responded.
Percipient witness Bobby J.
corroborated K.M.’s story, testifying that defendant left the scene and drove
away on Pershing as he followed behind her.
Defendant turned right on Poplar and drove approximately 50 feet before
she parked her car. When Bobby J.
told her she needed to return to the intersection, defendant got out of her car
and walked back toward the intersection.
Despite returning to the scene where fire personnel were by that time
tending to D.C. and K.M., defendant did not approach emergency personnel or
make herself known to anyone as the driver of the car that hit the
victims. When Bobby J. identified
defendant to emergency personnel and told them where they could find her car,
defendant walked the opposite direction, away from her car.
Although defendant ultimately
returned to her car and approached Officers Barrera and Raines, she did not
disclose the fact that she owned the car or that she was involved in the
collision until the officers asked her.
Defendant’s claim that she could not
legally park on Pershing and therefore drove to Poplar and stopped as soon as
reasonably possible is unpersuasive. It
is clear from Bobby J.’s testimony that defendant left the scene, drove down
Pershing, turned onto Poplar and parked.
After an admonishment from Bobby J. to return to the scene, defendant
got out of her car and made her way back to the intersection where, instead of
identifying herself and letting emergency responders know she was the driver
involved in the collision, she stood with other bystanders and asked, “Que
paso?†or “what happened?†Moreover,
despite the “No Parking†signs on Pershing, Alan M. parked his car on the side
of the road near the intersection and helped pull D.C. out of harm’s way. Emergency vehicles parked near or in the
intersection as well.
Defendant also claims she was not
required to provide assistance to the victims because emergency responders were
on-scene rendering medical assistance within minutes of the collision. She claims she fulfilled her duty to
ascertain what assistance, if any, was necessary and made reasonable efforts to
see that such assistance was provided when she rolled down her window and asked
if the victims were okay, parked “nearby†and “went down to the intersection
and saw that fire department officials were treating [D.C.]†She claims the fact that she saw D.C. was
receiving treatment and “remained in the area†was sufficient to fulfill her
duties as a matter of law. We do not
agree.
According to Bobby J., the impact of
defendant’s car caused K.M. to spin around sideways and D.C. to be thrown onto
the hood of the car, into the windshield and then onto the ground where she
laid until K.M. and Alan M. pulled her to the sidewalk. The sheer force of the impact, the fact that
D.C. was lying in the street, and the fact that neither D.C. nor K.M. responded
when defendant asked if they were okay, should have indicated to defendant the immediate
need to render reasonable assistance by, at the very least, calling 911. She did not.
She only became aware that emergency responders were on the scene
tending to the victims after she drove away from the scene, parked her car over
a block away, was told by Bobby J. to return to the scene, and then walked back
to the intersection where the collision occurred. Despite the fact that she stood and observed
the activities taking place for several minutes, it was not until she returned
to her car and officers questioned her that she finally identified herself as
the driver of the car that hit the victims.
Defendant’s efforts, what little there were, did not suffice to fulfill
her duties under sections 20001 and 20003.
While on the one hand defendant
acknowledges that sections 20001 and 20003 “are part of a statutory scheme
which imposes on drivers the obligation to self-report when the driver’s
vehicle has been involved in an accident,†on the other hand she argues she was
not required by law to “spontaneously volunteer†her identifying information to
anyone. She argues she was legally
excused from providing her contact information to the victims because D.C. “was
unconscious as a result of the accident.â€
The argument does not hold water, given that defendant could not only
have provided the required information to K.M., who was conscious and actively
involved in rendering assistance to D.C., but also to Bobby J., emergency
responders on-scene, anyone in the crowd gathered after the collision, or spontaneously
to police officers after returning to her car.
Defendant argues further that she
gave identifying information to Officers Barrera and Raines when prompted. She notes that she did not drive away from
the scene without identifying herself to anyone; she did not move her car after
parking it around the corner; and she did not give false information to
police. More noteworthy, however, is the
fact that she never called 911; she made no attempt to help the victims or give
them her information; she never approached law enforcement officers or
emergency responders and identified herself as the driver without first having
to be asked; and, when police later questioned her, she lied, telling them she
“got out of the car, helped the girls out of the road, introduced herself and
then got back into her car to re-park it.â€
There is sufficient evidence to
support defendant’s conviction for felony hit and run.
II
Over defendant’s objection, the
trial court admitted into evidence an outstanding warrant issued for defendant
for a probation violation for the limited purpose of showing a motive to flee
and avoid police contact. Defendant
contends this deprived her of her constitutional right to a fair trial and due
process because the warrant was offered without evidence that she knew of its
existence. As we shall explain, any
error in admitting the outstanding warrant was harmless.
Evidence Code section 1101,
subdivision (b), provides in relevant part that “evidence that a person
committed a crime, civil wrong, or other act when relevant to prove some fact
(such as motive . . .)†other than to prove criminal disposition or propensity
is relevant and admissible. In
determining whether circumstantial evidence of a prior uncharged bad act is
admissible, the court considers the materiality of the fact sought to be
proved, the tendency of the uncharged bad act to prove the material fact and
the existence of any rule requiring exclusion.
(People v. Miller (2000) 81
Cal.App.4th 1427, 1447.)
In admitting evidence of other
crimes, the court must weigh the probative value of such evidence which must be
substantial against the danger of undue prejudice, of confusing the issues or
of misleading the jury. (
1149.) We review the trial court’s
resolution of these issues for abuse of discretion. (Ibid.)
Here, we find no abuse of
discretion. The trial court twice
balanced the probative value of the warrant against its prejudicial effect and
determined the former outweighed the latter.
Indeed, the evidence of defendant’s outstanding warrant was highly
probative as to a possible motive for defendant to flee the scene to avoid
being identified as the driver of the car who hit the victims. Moreover, at the time the evidence was
offered, the jury was properly admonished to consider it only for the limited
purpose of determining whether defendant had a motive to flee the scene, and
not to consider the evidence for any other purpose or conclude from the evidence
that defendant has a bad character or is disposed to commit a crime. (People
v. Key (1984) 153 Cal.App.3d 888, 899 [trial court had duty to tell jurors
the precise issues to which the evidence was limited].) To that end, the court took judicial notice
of the warrant and, in particular, that it “was for violation of probation for
failure to report and/or notify the probation officer of correct living
arrangements or failure to obey reasonable directions of the probation
officer.â€
Defendant contends there was no
evidence she knew about the outstanding warrant and thus it was not relevant to
show motive. As a preliminary matter,
she argues admission of the outstanding warrant to show motive to flee was
irrelevant because there is no evidence she ever fled. We reject that argument based on the
significant amount of evidence of evasive behavior and flight discussed in part
I, ante, of this opinion, which we
need not repeat here.
As for defendant’s knowledge
regarding the existence of the warrant, even were we to assume she had none,
the jury was instructed to disregard evidence of the warrant under that
circumstance, and we presume the jury to have followed that instruction. (People v. Williams (2010) 49 Cal.4th
405, 469; People v. Gray (2005) 37 Cal.4th 168, 231.)
III
Defendant contends she is entitled
to 105 conduct credits for a total of 210 presentence custody credits. The People argue that, although defendant was
sentenced on March 1, 2010, after the statute’s effective date, a “majority of
her credits, however, were earned before the amended version of section 4019
was enacted.†As such, the trial court
appropriately employed a two-tiered calculation which recognizes the legislative
intent to encourage good behavior by awarding or increasing credit for good
conduct during the period when the incentives where in place.
We conclude defendant’s presentence
custody credits are calculated as follows:
For the period January 15, 2009
through February 10, 2009 (27 actual days), defendant is entitled to 12 days of
conduct credit, pursuant to Penal Code section 4019, as effective in 2009. That is, two days of conduct credit for every
four days served. (People v. Brown (2012) 54 Cal.4th 314, 318 (Brown); In re Marquez (2003)
30 Cal.4th 14, 25-26 (Marquez).)
For the period December 14, 2009
through January 24, 2010 (42 actual days), defendant is entitled to 20 days of
conduct credit, pursuant to section 4019, effective in 2009. (Brown,
supra, 54 Cal.4th at p. 318; Marquez,
supra, 30 Cal.4th at pp. 25-26.)
For the period January 25, 2010
through March 1, 2010 (36 actual days), defendant is entitled to 36 days of
conduct credit, pursuant to section 4019, as effective on or after January 25,
2010. (Brown, supra, 54 Cal.4th at p. 318.)
Defendant is entitled to 105 days of
actual custody credit, as acknowledged by the trial court in its amended minute
order dated September 21, 2010, and is further entitled to 68 days of conduct
credit. Thus, defendant is entitled to a
total of 173 days of custody credit. We
will direct the trial court to amend its minute
order accordingly.
IV
Defendant claims the $78 booking fee
reflected in the court’s written minute order must be stricken because it was
neither orally imposed by the court at sentencing, nor is it mandated by
statute. We agree.
As noted by defendant, there is a
discrepancy between the clerk’s minute order, which reflects a main jail
booking fee of $78, and the court’s oral pronouncement of judgment, which is
silent in that regard. “The record of
the oral pronouncement of the court controls over the clerk’s minute order†(People v.
Farell (2002) 28 Cal.4th 381, 384, fn. 2), which “may not add to
or modify the judgment it purports to digest or summarize†(People v.
Mitchell (2001) 26 Cal.4th 181, 185).
The administrative fees for booking and classification of inmates are
not mandatory. (Gov. Code, §
29550.2.) The $78 booking fee must
therefore be stricken from the written minute order. We remand the matter to the trial court to
amend the minute order to conform to its oral order. (Mitchell, at p. 185.)
Disposition
The matter is remanded to the trial
court with directions to modify the written minute order and conditions of
probation filed March 1, 2010 to (1) award defendant 105 days of actual credit
and 68 days of conduct credit, for a total of 173 days of presentence custody
credit, and (2) delete the $78 booking fee.
The trial court is directed to transmit copies of the corrected minute
order to defendant and to the probation department.
As modified, the judgment is
affirmed.
HULL ,
J.
We concur:
NICHOLSON , Acting P. J.
HOCH , J.
