Opinion
A144918
02-16-2018
THE PEOPLE, Plaintiff and Respondent, v. ERIC VON RENEGAR, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Lake County Super. Ct. No. CR937491)
Following a jury trial, appellant Eric von Renegar was found guilty of felony hit and run. In a bifurcated proceeding, the trial court found true the allegations that appellant had been previously convicted of a violent felony and had previously served five prior prison terms. The trial court denied appellant's motion to strike the prior conviction and sentenced appellant to six years in state prison. On appeal, appellant contends his conviction is not supported by substantial evidence. He further contends his trial counsel rendered ineffective assistance by failing to seek a reduction of his felony conviction to a misdemeanor. We affirm.
I. EVIDENCE AT TRIAL
On the afternoon of March 12, 2014, Robert Turner was driving home from Clearlake, heading east on Highway 20. His four-year-old daughter was fastened in her car seat in the rear passenger-side seat of Turner's SUV. Turner testified he saw a dark blue truck in his rearview mirror, approaching fast. As it approached, the truck appeared to force another car off the road and onto the shoulder. The truck then pulled into the oncoming traffic lane, alongside Turner, to pass. Turner accelerated to prevent the truck from passing him. The truck again pulled alongside Turner, who once more accelerated to prevent the truck from passing.
The third time the truck tried to pass, it struck the SUV, forcing Turner onto the shoulder of the road. Turner worried the shoulder was not wide enough, and so he pulled back onto the highway. At this point, Turner's SUV collided with the truck, causing the SUV to skid in front of the truck and then flip over. The truck continued down Highway 20.
Turner's SUV landed on its roof. Turner got out of the vehicle, but was unable to open the rear door to get his daughter, who remained strapped in her car seat. Instead, Turner climbed through a broken window to retrieve his daughter. While Turner suffered minor injuries, his daughter was uninjured.
Sheriff's Deputy Emil Devincenzi was leaving the Clearlake Oaks substation near Highway 20 at approximately 2:30 p.m. on the day of the incident when he "saw a vehicle basically flying through the air." He turned on his siren and pulled onto the highway, where he saw the vehicle had landed on its roof in the eastbound lane, near the Lake Point Lodge and Happy Garden Restaurant. Deputy Devincenzi saw Turner outside the SUV, yelling that his daughter was still inside; Deputy Devincenzi saw a small child inside the SUV. He saw Turner climb into one of the broken windows and pull her out. Deputy Devincenzi did not have an opportunity to closely observe Turner until after Turner retrieved his daughter from the car, at which point he noticed Turner had scrapes and scratches and saw what appeared to be blood on Turner. Deputy Devincenzi then responded to a call that the driver of the other vehicle had been located at a mobile home park seven miles further down Highway 20. When Deputy Devincenzi arrived at the mobile home park, he saw appellant's truck parked next to a tree. There was a chain wrapped around the tree, with the other end laying beneath the bumper. Deputy Devincenzi saw white paint chips on the truck's front bumper, which he described as having been dented and then pulled back out. Deputy Devincenzi interviewed appellant, who admitted he knew that he had made contact with Turner's SUV.
Three eyewitnesses testified about the collision. Postal worker Suzette Hutchins was delivering mail in the area at the time of the incident. She was standing about 15 feet from the road when she heard a vehicle coming up the road "really loud . . . like it was gunning an engine." She looked up and saw an older model truck pass three or four vehicles. She heard sirens, but continued on her mail route.
As she approached the scene of the accident, she saw a vehicle "on its side." Hutchins gave a statement to law enforcement at the scene with a description of the truck, which she later identified in a photo presented by Deputy Devincenzi.
Mark Peterson was standing 50 feet away from the scene, in the parking lot of the Happy Garden Restaurant, when he heard a collision. He looked up and saw a truck in the middle turning lane behind an SUV. Peterson saw the truck speed up and strike the SUV two or three more times before the SUV flipped over. The truck never stopped.
Harry Ottele was driving west on Highway 20 when he saw the truck and SUV driving side-by-side. Ottele was in front; in his rearview mirror he saw the vehicles collide and the SUV flip over. Ottele initially pulled over, but then continued on when the truck did not stop, eventually following it into a mobile home park. Ottele called 911 and then waited, with the truck in his view, for about 40 minutes until the police arrived. He saw the driver of the truck get out and heard him tell a neighbor, " 'I did nothing wrong.' " Ottele also observed appellant chain his truck to a tree and back up, "like he was pulling out the front end."
California Highway Patrol Officer Steven Patrick responded to a dispatch reporting a two-car crash in which one of the vehicles rolled over and the second fled the scene. The second vehicle was described as an older model pickup with a black cab, white contractor's box, and a lumber rack, and was reported to be located in a mobile home park just off Highway 20. Officer Patrick drove to the mobile home park, where he located a vehicle matching the description. Appellant was present and appeared to be working on the truck. There was a chain tied around a tree near the vehicle, which Officer Patrick described as consistent with appellant attempting to pull out the bumper.
Officer Patrick's vehicle was equipped with a Mobile Video Audio Recording System, which captured audio of his interaction with appellant at the mobile home park. On the tape, which was played for the jury, appellant explained he could not stop because " 'if I brake, I flip over too.' " In addition to the audio tape of appellant's statements at the mobile home park, the prosecution introduced surveillance video from the hotel showing the collision between the two vehicles, along with photos of Turner's injuries and the accident scene.
The defense called Christopher Kauderer as a traffic reconstruction expert. Among other things, Kauderer reviewed the surveillance videos showing the collision and photographs of the accident scene and appellant's truck. Kauderer also examined appellant's truck in July 2014, Kauderer offered his opinion that the original contact between the two vehicles occurred when the right front bumper of the truck collided with the SUV, which then rotated across the front of the truck and "slapped" the driver's side of the truck before flipping over. According to Kauderer, this took place when Turner, driving on the shoulder, pulled his vehicle back ahead of appellant's truck and attempted to move back into the lane. In Kauderer's opinion, the windows on the SUV broke when the car rolled over and not as a result of any prior contact between the vehicles. But Kauderer acknowledged the truck's sideview mirror could have shattered the windows of the SUV, and he could not rule out prior contact between the vehicles before the surveillance video started.
II. DISCUSSION
A. Substantial Evidence Supports the Hit and Run Conviction
Appellant contends the evidence is insufficient to prove he knew or reasonably should have known that the accident caused bodily injury. He further asserts that none of the alleged injuries were proximately caused by the accident itself. We are not persuaded.
Vehicle Code section 20001, subdivision (a) provides that the "driver of a vehicle involved in an accident resulting in injury to any 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."
Vehicle Code 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."
A conviction under section 20001, subdivision (a) of the Vehicle Code requires proof of knowledge of the injury. (People v. Holford (1965) 63 Cal.2d 74, 80.) Such knowledge usually "must be derived from the surrounding facts and circumstances of the accident" because "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." (Ibid.) Hence a "requirement of actual knowledge of injury would realistically render the statute useless . . . . [C]riminal 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." (Ibid.; italics added; fn. omitted.) Courts have recognized several factors in determining whether a defendant had constructive knowledge of injury, including the sound of the impact (People v. Roche (1942) 49 Cal.App.2d 459, 462), the extent of the damage to the defendant's car (People v. Wolf (1978) 78 Cal.App.3d 735, 738, 740), the effect of the impact on the second vehicle (People v. Rocovich (1969) 269 Cal.App.2d 489, 493), and the fact that the accident occurred in daylight (Roche, supra, 49 Cal.App.2d at p. 461).
In this case, the crash was so serious that a reasonable person in appellant's position would have anticipated it caused injuries to Turner. (People v. Holford, supra, 63 Cal.2d at p. 80.) Appellant's truck was positioned behind Turner's SUV at the moment of impact. Specifically, the right corner of appellant's truck hit the left rear corner of Turner's SUV. The force of the impact caused the SUV to "slid[e] sideways," "roll [] over" and land on its roof. As appellant's truck hit the rear of the SUV, he was in position to see the roll over. Indeed, when asked by Officer Patrick why he did not stop, appellant said "if I brake, I flip over too." The force of the impact was sufficient enough to dent appellant's bumper and to attract the attention of an eyewitness 50 feet away. Deputy Devincenzi reported seeing a vehicle "flying through the air," before landing on its roof on the highway.
The instant case is distinguishable from People v. Carter (1966) 243 Cal.App.2d 239 (Carter), cited by appellant. In Carter, the court reversed a conviction for felony hit-and-run driving where Carter's vehicle hit another causing slight damage to both vehicles. (Carter, supra, 243 Cal.App.2d at pp. 240-241.) Carter stopped, helped the other driver move his car, and asked if anyone was hurt. (Ibid.) According to Carter, he left the scene only after the other driver responded that no one was hurt. (Ibid.) As there was no conflicting testimony, the court reversed the conviction because the evidence was insufficient to prove Carter's actual or constructive knowledge of personal injury. (Id. at p. 241.)
Here, appellant caused more than slight damage to the vehicles, as evidenced by Turner's overturned SUV and broken window and appellant's dented bumper, with noticeable white paint chips. In addition, appellant never stopped but fled the scene, instead of conducting a reasonable investigation as to whether Turner had been hurt. Unlike Carter, appellant had no grounds to conclude Turner was unharmed after the accident.
The evidence supports the jury's finding that appellant possessed constructive knowledge that the accident inflicted personal injury on another, as any reasonable person running a truck into another vehicle causing that vehicle to flip over and land on its roof would similarly know.
Appellant tries to minimize Turner's injuries by noting that his scratches and scrapes were minor injuries that did not result from the collision itself but were caused by Turner's re-entry into the SUV to retrieve his daughter. First, Vehicle Code section 20001 does not require any particular degree of injury; it requires only "injury to any person." Second, Vehicle Code section 20001 extends beyond those injuries sustained at the moment of impact. Rather, subdivision (a) of Vehicle Code section 20001 triggers a duty to stop and render reasonable aid whenever an accident "result[s] in injury to a person." Here, Turner testified that he suffered distinct injuries before, during, and after the point of impact. Turner testified that his arm was cut when the initial collision shattered the driver-side windows, his foot was injured when the car flipped over and the dashboard "smashed in," and his arms and back where cut and scraped when he climbed in and out of the broken window for his daughter.
Appellant argues Turner's testimony is "incredible" in light of appellant's expert witness's opinion that the windows of the SUV broke when the car flipped and not before the roll over. On appeal, however, we do not reweigh evidence or reevaluate a witness's credibility. (People v. Brown (2014) 59 Cal.4th 86, 106.) Rather, "[r]esolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction." (People v. Young (2005) 34 Cal.4th 1149, 1181.) There was ample evidence that Turner was injured during the accident.
Vehicle Code section 20001 has been interpreted to include any injuries that are "the 'direct, natural, and probable' " consequence of the accident. (CALCRIM No. 2140; see Bench Notes to CALCRIM No. 2140, citing People v. Autry (1995) 37 Cal.App.4th 351, 363 and People v. Pike (1988) 197 Cal.App.3d 732, 746-747; see also People v. Armitage (1987) 194 Cal.App.3d 405, 420-421 ["only an unforeseeable intervening cause, an extraordinary and abnormal occurrence" will break the chain of causation in a criminal prosecution].)
The question of whether Turner's injuries were causally linked was a factual question for the jury. (Lombardo v. Huysentruyt (2001) 91 Cal.App.4th 656, 665.) Here, the jury implicitly concluded that Turner's decision to re-enter the vehicle through a broken window flowed naturally from the collision with appellant that left Turner's car overturned, with the passenger-side door jammed, and his four-year-old daughter trapped upside down in her car seat. We conclude substantial evidence of causation is found in the record.
In sum, appellant fails to demonstrate the evidence warrants reversal of his felony hit-and-run conviction. B. The Claim for Ineffective Assistance of Counsel Fails For Lack of Prejudice
Violation of Vehicle Code section 20001, subdivision (a), is a "wobbler" offense that may be punished as either a misdemeanor or felony in the trial court's discretion. (Id., subd. (b)(2); see People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 974-975 & fn. 4 (citing Veh. Code, § 20001 as an example of a wobbler).) On appeal, appellant argues his trial counsel was constitutionally ineffective because he failed to ask the court to reduce the felony conviction to a misdemeanor under Penal Code section 17, subdivision (b).
An appellant claiming ineffective assistance of counsel must show (i) that counsel's performance was defective and (ii) that counsel's defective performance was prejudicial. (Strickland v. Washington (1984) 466 U.S. 668, 687; People v. Johnson (2016) 62 Cal.4th 600, 653.) The former requires an appellant to show "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." (Strickland, supra, 466 U.S. at p. 687.) The latter requires the appellant to "show there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Id. at p. 694.) Both prongs are required to show constitutionally ineffective assistance of counsel, but "a court need not [first] determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies." (Id. at p. 697.) "If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed." (Ibid.)
When a crime is punishable as either a misdemeanor or felony, as here, the sentencing court may reduce the felony to a misdemeanor at the time of sentencing by imposing a punishment other than state imprisonment or by granting probation and declaring the offense to be a misdemeanor. (Alvarez, supra, 14 Cal.4th at p. 974, fn. 4, citing § 17, subd. (b).) Section 17, subdivision (b), sets forth the "procedural mechanism[]" by which a trial court may exercise its sentencing discretion to reduce a wobbler to a misdemeanor (Alvarez, supra, 14 Cal.4th at p. 974, fn. 4), but the trial court's authority to impose either a felony or a misdemeanor sentence flows from the charging statute itself (ibid.).
The trial judge is presumed to know and follow the law (People v. Mack (1986) 178 Cal.App.3d 1026, 1032), including the court's "long- established" authority to reduce a wobbler to a misdemeanor. (People v. Park (2013) 56 Cal.4th 782, 790.) The record here does not suggest otherwise; in fact, the trial court's discretion to reduce a wobbler to a misdemeanor was the explicit subject of a sentencing/Romero motion by appellant, requesting the court to nunc pro tunc reduce a prior felony conviction to a misdemeanor. Appellant's Romero motion began by setting forth the statement of the case, to wit: "Defendant's obligation under VC 20001 to stop his vehicle, provide aid, including transportation to a hospital . . . is a wobbler, and, under most circumstances, the conduct in this matter should have been charged as a misdemeanor . . . ." (Italics added.) The motion, however, did not seek to reduce the current felony conviction to a misdemeanor.
Appellant nevertheless argues it is "likely" the trial court would have exercised its discretion to impose a misdemeanor conviction rather than a felony conviction, had trial counsel so requested, because the other driver was at fault and suffered only minimal injuries, while "appellant had compelling reasons not to stop" based on his post-traumatic stress disorder. Each of these arguments was presented to the trial court as mitigating factors upon which a lower-level sentence was warranted and as grounds to strike his prior convictions. Although the court has greater discretion to reduce a wobbler than to strike a prior conviction (cf. People v. Williams (1998) 17 Cal.4th 148, 160-161 [discretion to strike a prior conviction may be exercised only " 'in furtherance of justice' "] with Alvarez, supra, 14 Cal.4th at p. 977 [describing the relevant factors to reduce a wobbler]), the relevant factors are similar and appellant does not point to anything that was not before the trial court at sentencing. Nevertheless— and despite agreeing with defense counsel that appellant did not cause the accident—the trial court did not find any circumstances warranting mitigation and, in its discretion, denied the motion to strike and sentenced appellant to the aggravated sentence of three years' state imprisonment for the crime of conviction. The judge's decision to sentence appellant to an upper-term, three-year sentence on the crime of conviction (which was then doubled to six years based on appellant's prior strike) belies any possible prejudice that might flow from trial court's alleged failure to move that appellant's felony conviction be reduced to a misdemeanor. The record reflects that the trial court was aware of its discretion to reduce the wobbler to a misdemeanor and chose not to exercise it. The court's choice is supported by numerous factors presented for sentencing, including appellant's lengthy criminal record, and it is not "reasonably probable" (In re Welch (2015) 61 Cal.4th 489, 521) that the court would have reduced the wobbler even if trial counsel had moved to do so. Accordingly, any defective performance by trial counsel did not prejudice appellant.
III. DISPOSITION
The judgment is affirmed.
/s/_________
REARDON, J. We concur: /s/_________
RUVOLO, P. J. /s/_________
STREETER, J.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).