P. v. Caballero
Filed 12/19/11 P. v. Caballero CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION THREE
| THE PEOPLE, Plaintiff and Respondent, v. DENNIS CABALLERO, Defendant and Appellant. | B228851 (Los Angeles County Super. Ct. No. NA086133) |
APPEAL from a judgment of the Superior Court of Los Angeles County, Joan Camparet-Cassani, Judge. Affirmed.
Alan E. Spears, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Roberta L. Davis and Kathy S. Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendant and appellant, Dennis Caballero, appeals the judgment entered following his conviction for assault with a deadly weapon and leaving the scene of an accident (Pen. Code, § 245; Veh. Code, § 20001).[1] He was sentenced to state prison for a term of three years, eight months.
The judgment is affirmed.
BACKGROUND
Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established the following.
1. Prosecution evidence.
On May 22, 2010, Joseph Rodriguez, Victor Mora and Matthew Johnson were at Mike Reyes’s house near 216th Street and Harvard Boulevard in Torrance. Around 10:00 p.m., defendant Caballero drove his black Honda Accord at a high rate of speed up and down Harvard Boulevard. Because there were children in the street, Mora and the others yelled at him to slow down.
Caballero stopped in front of Reyes’s house, with his motor running. Mora walked up to the car and asked Caballero what his problem was. Caballero cursed Mora, pulled out a walkie-talkie from behind his seat and claimed to be a police officer. Rodriguez smelled alcohol on Caballero’s breath. Caballero then drove up Harvard, made a U-turn and, as he drove back down the street, he threw a beer bottle at Rodriguez, Mora and Johnson. The bottle smashed harmlessly against a wall.
Shortly thereafter, Mora and a friend walked to a nearby 7-Eleven to purchase beer. Rodriguez and Johnson followed a short distance behind them. Caballero’s car was parked at the 7-Eleven. According to Rodriguez the car “was jacked up,” i.e., one side was in the air as if to change a tire. Mora testified he saw “a tire and a jack next to the car.” Caballero was using a pay phone outside the 7-Eleven. As he walked past Caballero, Johnson said, “I see you.”
After leaving the 7-Eleven, Mora’s friend went off to buy some food and Mora started walking back to Reyes’s house. He planned to take a short cut through an ARCO gas station. Rodriguez and Caballero caught up with Mora as he was approaching the ARCO station.
Suddenly they heard the sound of screeching car tires. Rodriguez also heard a loud banging noise made by a car “bottoming out” as it drove into the ARCO station. It was Caballero in his black Honda. Rodriguez testified the Honda was traveling fast, about 30 to 35 miles per hour. Mora testified that when he heard tires screeching, he turned around and saw the Honda driving into the ARCO station with its headlights turned off:
“A. . . . I looked over my shoulder, and [Rodriguez] said look out, and he grabbed my shirt, pulled me to the right between the two pumps.
“Q. [Rodriguez] actually grabbed your shirt
“A. Yes.
“Q. And what happened next
“A. We went in between the pumps and the car came up, bottomed out, came up to the pumps, went around the pump on the right-hand side and [Johnson] was in front of the car, but I really didn’t see the car hit anybody. I just saw the car come around the pumps and out the driveway.
“Q. Did you hear [Johnson] yell anything
“A. Yeah. Yes. He said that the guy hit me.
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“Q. . . . What happened next
“A. [Johnson] yelled at the clerk in the ARCO to call 911.”
Rodriguez testified he yelled, “[L]ook out, move.” He yelled it pretty loud because he thought the Honda was going to hit them. Rodriguez and Mora managed to jump out of the way, but not Johnson. Rodriguez saw the Honda’s right front tire run over the back of Johnson’s heel. When that happened, Johnson said something “in a loud, angry voice.” He sounded like he was in pain. The Honda kept going, made a U-turn, and then drove out of the ARCO station. The Honda’s front windows were down and there was no music coming from the car.
Johnson testified he heard Rodriguez yell “Watch out.” He turned around, saw the Honda “coming right at me,” and could not get out of the way in time. The Honda’s right front tire ran over the back of his heel and he fell to the ground.
“Q. When that happened, what did it feel like
“A. At the time I really hardly felt anything because my adrenaline was going . . . .”
Johnson got back up and saw Caballero “making a U-turn around the gas pump” and “basically trying to get out of there as fast as he can.” Caballero was driving recklessly through the ARCO station, going 20-25 miles per hour. A tire popped as the Honda left the station, the car bottomed out again, and Caballero seemed to lose control temporarily as the car spun around 360 degrees. Rodriguez saw sparks when the Honda bottomed out and he also saw smoke coming from the tires. Caballero drove off without stopping to see if Johnson had been injured.
Rodriguez grabbed Johnson and “hopped” him over to the ARCO office, where he told the clerk that Johnson had been hit by a car.
2. Defense evidence.
Caballero did not testify. The defense theory was that he had had nothing whatsoever to do with the accident and the charges against him were the result of mistaken identity.
Officer Romarcio Macapagal of the Los Angeles Police Department responded to the ARCO station. In his opinion, Rodriguez, Mora and Johnson were all intoxicated, although Johnson was not drunk.
3. Rebuttal evidence.
Dean Smith was working at the ARCO station that night. He saw a black Honda Accord drive through the station, but he did not see who was driving. Subsequently, someone came to the ARCO office and asked Smith to call the police. Because he was busy with customers, Smith gave the man his telephone so the man could call 911 himself.
CONTENTION
There was insufficient evidence to sustain Caballero’s conviction for leaving the scene of an accident.
DISCUSSION
Caballero contends he was improperly convicted of leaving the scene of an accident because there was insufficient evidence he knew or should have known he had hit Johnson with his car.
1. Legal principles.
Vehicle Code section 20001, subdivision (a), provides: “The driver of a vehicle involved in an accident resulting in injury to a person, other than himself or herself, or in the death of a person shall immediately stop the vehicle at the scene of the accident and shall fulfill the requirements of Sections 20003 and 20004.” Section 20003, subdivision (a), provides, in pertinent part, that the driver “shall 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.”
“Section 20001 of the Vehicle Code penalizes the driver who fails to stop the vehicle which is ‘involved in an accident resulting in injury’; previous cases have said that knowledge of injury is an essential element of the crime proscribed by that section [citations]. Usually, however, such knowledge must be derived from the surrounding facts and circumstances of the accident. [Citation.] Yet the driver who leaves the scene of the accident seldom possesses actual knowledge of injury; by leaving the scene he forecloses any opportunity to acquire such actual knowledge. Hence a requirement of actual knowledge of injury would realistically render the statute useless. We therefore believe that criminal liability attaches to a driver who knowingly leaves the scene of an accident if he actually knew of the injury or if he knew that the accident was of such a nature that one would reasonably anticipate that it resulted in injury to a person.” (People v. Holford (1965) 63 Cal.2d 74, 79-80, fn. omitted, italics added.)
The circumstantial evidence showing Caballero should have anticipated someone had been injured includes evidence demonstrating what Caballero likely saw and heard during the incident. (See, e.g., People v. Holford, supra, 63 Cal.2d at p. 78 [“independent witness . . . heard an audible noise when the two automobiles came into contact with each other and a loud noise when the automobile collided with the pickup truck”]; People v. Wolf (1978) 78 Cal.App.3d 735, 740 [“there is testimony that the lights from the car would have illuminated the area so as to make an object discernible”]; People v. Blankenship (1959) 171 Cal.App.2d 173, 177 [“the collision was forcible and was audible at a distance of 150 feet”]; People v. Roche (1942) 49 Cal.App.2d 459, 462 [“weather was clear and there was no limitation of visibility,” and “[t]he noise of this collision and of the bicycle as it fell would naturally have attracted the attention of appellant if she had not actually seen or felt the impact”]; People v. Dallas (1941) 42 Cal.App.2d 596, 601, disapproved on another ground in In re Wright (1967) 65 Cal. 2d 650, 654-655 [witnesses in another vehicle “clearly saw the pedestrian walking along the shoulder of the highway” and “heard a ‘sickening thud’ when the pedestrian was struck”].)
2. Discussion.
Caballero asserts there was no evidence he had constructive knowledge Johnson had been injured. Not so.
The evidence showed that, although Caballero did not have his car lights turned on, there was sufficient lighting for him to have seen how close he came to hitting the three men as they walked through the ARCO station. Rodriguez testified the group had walked down Carson Street to get to the ARCO station, and that there were street lights along Carson. Mora testified the lighting at the ARCO station “was bright.”
The evidence established Caballero drove directly toward the three men, barely missing Mora and Rodriguez, who had to jump out of the way, while clipping Johnson on the heel. Caballero does not contest his conviction for assault with a deadly weapon, one element of which, as the jury was advised, is that “[t]he person committing the act was aware of facts that would lead a reasonable person to realize that as a direct, natural and probable result of this act that physical force would be applied to another person.” And, even though Caballero probably could not see his front passenger tire run over Johnson’s heel, he should have heard Rodriguez yell “look out” and then Johnson scream in pain and anger when Caballero hit him.
Rodriguez testified:
“Q. Which tire did you see run over [Johnson’s] heel
“A. The passenger, the front passenger tire.
“Q. The right front tire
“A. Yes.
“Q. How far away were you from [Johnson] when you saw that happen
“A. Like I’d say three to four feet.
“Q. Okay. Did you hear [Johnson] say anything when that happened
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“The witness: Yes.
“Q. . . . How did he say it
“A. Just in a loud, angry voice.
“Q. Did it – what did it sound like to you
“A. That he was in pain.” (Italics added.)
Mora testified he heard Johnson yell “that the guy hit me.” The evidence also showed Caballero’s car windows were down and he was not playing music in his car, which leads to the fair inference he would have heard Johnson scream in pain.
Caballero argues the notion that anything Johnson said could have alerted him to Johnson’s injury “is both speculative and unreasonable. First, Mora testified that Johnson said, ‘The guy hit me,’ which infers the remark was directed not at Appellant but at Mora and Rodriguez. Second, Johnson testified he ‘hardly felt anything’ and did not realize he had been injured until he stood up and tried to walk. It is unreasonable to assume Johnson said anything about being hit until after he realized he had been hit, and, by that time, Appellant had already exited the station.”
We are not persuaded. It doesn’t matter to whom Johnson’s statement was directed because saying “The guy hit me,” was a clear notification to Caballero that someone had been injured. What matters is whether the statement was loud enough for Caballero to have heard it. And the evidence, as Caballero acknowledges, was that Johnson yelled out this statement: both Mora and Rodriguez testified they heard Johnson yell. The evidence also showed Caballero’s car windows were down and he wasn’t playing music in his car. The jury could have reasonably concluded Caballero would have heard Johnson yell that he had been hit.
Although Johnson himself may have believed he did not immediately react to being hit, other evidence, particularly the testimony of Rodriguez, tended to show Johnson reacted by immediately screaming in pain and saying he had been hit. In light of this evidence, the jury was not bound by Johnson’s testimony he did not feel any pain until later when he tried to walk. (See, e.g., People v. Renteria (1964) 61 Cal.2d 497, 499 [in robbery case, prosecution was not bound by store clerk’s testimony he did not give defendant money out of fear, because other evidence tended to show he had indeed been afraid].) Furthermore, the fact there may have been a time lag before Johnson realized he had been injured does not mean he did not instantaneously realize he had been hit by Caballero’s car.
As the Attorney General points out: “[G]iven Johnson’s reaction after he was hit, it is highly unlikely that appellant did not know that he had struck Johnson. After Johnson was hit, he fell to the ground . . . . Rodriguez and Mora were able to hear Johnson yell after he was hit. Rodriguez testified that Johnson yelled in a loud angry voice, and it sounded like he was in pain. Mora testified that Johnson yelled that he had been hit. Notably, the front windows on appellant’s car were down, and there was no music coming from the car. A jury could certainly infer from this evidence that appellant could see Johnson fall and could hear Johnson cry out in pain after he had been hit by appellant’s car.”
We conclude there was sufficient evidence Caballero “knew that the accident was of such a nature that one would reasonably anticipate that it resulted in injury to a person.” (People v. Holford, supra, 63 Cal.2d at p. 80.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KLEIN, P. J.
We concur:
CROSKEY, J.
ALDRICH, J.
