Christopher Love, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel, Tami Hennick and Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD275741) APPEAL from a judgment of the Superior Court of San Diego County, Laura J. Birkmeyer, Judge. Affirmed. Christopher Love, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel, Tami Hennick and Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found Ronel Romain not guilty of the charge of failing to perform a legal duty following a vehicle accident that caused death or permanent serious injury (Veh. Code, § 20001, subd. (b)(2); hit-and-run with death or serious injury). However, the jury convicted Romain of failing to perform a legal duty following a vehicle accident that caused damage to another's property (Veh. Code, § 20002; hit-and-run with property damage). The court granted Romain summary probation for three years on condition he serve 90 days in custody and pay a fine.
The jury did not reach a verdict on a separate lesser offense of hit-and-run with injury (Veh. Code, § 20001, subd. (a)), which the court subsequently dismissed.
Romain contends there was insufficient evidence of damage to another person's property to support his conviction. He also contends, for the first time on appeal, his constitutional rights were violated because he was charged only with hit-and-run resulting in death or serious injury, not with hit-and-run resulting in property damage. We conclude there was substantial evidence to support the jury's verdict. We also conclude Romain forfeited any constitutional challenge based on lack of notice by failing to object to the court's jury instructions and verdicts regarding hit-and-run with property damage. Therefore, we affirm the judgment.
Around 9:00 p.m. on the night of February 18, 2018, four friends contacted Romain through a ride-sharing application to take them to downtown San Diego to continue a birthday celebration after having a few drinks by a pool at their apartment complex. One of the friends sat in the front passenger seat and the others sat in the backseat. Romain took the Interstate 15 to State Route 94 west toward downtown San Diego. On the drive, the passengers were chatting and singing with the radio.
At the end of the 94 freeway, just before it turns into a street, the passenger in the front seat saw a man standing on the shoulder of the road. Just after passing the man, the car hit something. The car jumped and swerved to the right side of the road. The driver's side of the car raised off the road. Other passengers heard a loud bang, the car bounced like it hit a speed bump on one side, and the car swerved to the right a lane or two. It sounded like the car had a flat tire and something was rubbing on the ground. One of the passenger's told Romain he needed to stop.
Romain got control of the car and turned right on a nearby street and stopped. Everyone got out of the car. The front left side of the car was damaged and the bumper was half gone. Plastic guards and wires were hanging down from under the car. The plastic around the front tire was also damaged. The passengers did not see blood, hair, or clothing fragments under the car.
Romain was upset that his car was damaged. He said he hit something someone left on the side of the highway. He mentioned a bicycle. The passenger who saw the man on the side of the road thought perhaps he had dropped a bicycle in the roadway. The passenger also suggested they may have hit a shopping cart. He had seen homeless people pushing shopping carts in the area.
No one thought they hit a person. The passengers did not see a shopping cart or a bicycle in the road.
Romain took the names and numbers of the passengers. Romain appeared shaken. One passenger thought Romain mentioned seeing a person on the side of the road. Another driver from the ride-sharing company picked up the group and took them downtown.
A friend of Romain's testified Romain called and said he hit something like a bicycle. He asked the friend to come and see if he could drive the car. When the friend arrived, he saw the front bumper was damaged and the car was not safe to drive. Romain said he hit a bicycle. California Highway Patrol (CHP) officers arrived thereafter. The friend told the officers Romain called and said his car had broken down. The friend said he saw the damage to the car when he arrived and asked what happened. The friend testified he told the officer Romain said he hit a bicycle. The CHP officer testified the friend reported Romain said he hit concrete or a curb and did not mention a bicycle.
N.S. was traveling westbound on the 94 between 9:00 and 9:30 p.m. on February 18, 2018, when he noticed some debris in the road just before the overpass of the Interstate 5 freeway near the end of the 94 freeway. As he came around a curve, he noticed some larger items on the road. N.S. saw a large pink and blue item in the roadway that looked like clothing. He also saw plastic debris. When N.S. drove around the pink item, he saw what appeared to be blond hair and believed it was a body. There were no vehicles in front of him.
N.S. stopped, got out of his vehicle, and observed a nonresponsive female in the roadway. N.S. called 911 and directed traffic around the body. At the 911 dispatcher's direction, he tried to roll the woman over, but she was too heavy. The woman was totally unresponsive, was not breathing, and had blood and tissue coming out of the mouth. N.S. saw no vehicle strike the body while he was present.
N.S. saw a male near where the underpass meets the road. He tried to ask if the man had seen what happened, but the person screamed something N.S. could not understand. N.S. stayed with the victim until police arrived.
N.S. told the 911 dispatcher the female may have been hit by more than one car because crushed debris was in front of her and behind her. Other debris in the middle lane looked like it had been run over. N.S. did not see a bicycle or a shopping cart in or near the roadway.
Responding CHP officers observed broken car parts, broken fiberglass, and plastic in the roadway. The body was lying in the number one lane and appeared to have a lot of blunt-force trauma. The officers observed blood on the roadway near the body and on some debris scattered on the roadway. The officers believed one vehicle was involved in the death of the pedestrian. One piece of debris had a series of numbers consistent with an engine part from a Toyota Prius. They did not see a bicycle, a shopping cart, or any parts that may have belonged to a bicycle or a shopping cart.
Officers located a black Prius several blocks away with front-end damage on the left, consistent with the suspect vehicle. A piece of the bumper found in the roadway matched the car perfectly.
Romain got out of the Prius when CHP officers drove by and said, "Were you looking for me?" Romain appeared calm and cooperative. He initially said his vehicle was damaged in a traffic collision several days earlier. Romain said he did not exchange information with the other party who was from Mexico. Romain said he had been driving the car in this condition for days and parked the car where they found him several hours earlier because he was waiting for his girlfriend to go to a bar on the street. Romain hesitated before providing a name for the purported girlfriend and could not provide the name of the bar.
The officer told Romain his vehicle matched the description of a vehicle involved in a traffic collision on the freeway. The officer did not provide details. Upon inspecting the vehicle, the officer observed clothing fragments lodged near the left suspension on the undercarriage of the car. When the CHP officer returned from inspecting the vehicle and recapped the conversation with Romain about an accident a week prior, Romain said, "So, someone got hit on the freeway?"
Romain later admitted he was in a collision earlier in the evening. He said he flagged down a San Diego police officer. The CHP officers were unable to substantiate this claim.
An investigator from the medical examiner's office observed the body lying mangled and contorted in the number one lane with vehicle debris and bodily fluids on the roadway before and immediately around the body. It appeared the body had been rolled or dragged. The investigator saw clothing in the area of the body. She did not see a bicycle or a shopping cart. There were grease marks on the body and clothing. The investigator thought the body and debris field were consistent with one vehicle striking the victim.
The medical examiner observed extensive blunt-force trauma injuries to the head as well as the front and back portions of the torso and buttocks as well as contusions and lacerations of the upper and lower extremities with fractures of multiple bones. The injuries were consistent with the victim being hit by a car. The cause of death was multiple blunt-force injuries due to an accident.
A CHP detective recovered an audio file from a messaging application on Romain's phone containing a message Romain left for his wife shortly after the accident. In the message, translated from Romain's native language to English by a certified interpreter, Romain said he was in shock because he was just involved in an accident, but God had saved him. He explained there was a highway, a big road, with vehicles running at high speed and there are homeless people who sleep under bridges and "rest on the street." He said, "The person crosses the freeway, the highway, on the bicycle. On the bike, the person passes the highway!" He described the accident saying, "While he is on the bicycle, then, I notice I am about to grab the person, and I am about to kill the person, then, the person flips. Then, the bicycle is in the middle of the highway. Then, I only grab the bike. When I caught the bike, the vehicle flies up in the air and bounces back to hit somewhere. It flies up in the air, it's about to run against a wall, I held on the steering wheel very hard. That's not me pressing on the steering wheel, it's God. He turns the steering wheel, the vehicle hits back the ground on its four-wheels. It is about to run against another surface, it bounces again, God holds on the steering wheel, it drops on its four-wheel again. Then, God give me balance, I drive the vehicle, then I go to park somewhere. The only thing, the damage to my car, there is something calls bumper, that means, the front of the vehicle just has minor damage."
In an interview after his arrest, Romain told a CHP detective he saw a man beside the freeway. Romain thought a homeless person left his bicycle on the freeway and it crushed Romain's bumper. Romain said he did not know he hit a person and denied knowing more than one person was on the freeway.
Romain said a San Diego police officer told him a person died on the freeway. When he saw CHP officers looking at his car, he asked if they had a question. Romain admitted he lied to police about when he was in an accident and when he parked because he was afraid. However, he continued to state he thought he hit a bicycle, not a person.
Romain contends we should reverse his conviction for hit-and-run with property damage because there was no evidence of damage to property other than his own car. We disagree.
"Upon a challenge to the sufficiency of evidence for a jury finding, we ' " ' "review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." ' " ' [Citation.] 'The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence.' " (People v. Rivera (2019) 7 Cal.5th 306, 323-324.) We presume the existence of every fact the trier of fact could reasonably deduce from the evidence in support of the judgment. (People v. Clark (2011) 52 Cal.4th 856, 943.) We may not reverse a conviction for insufficient evidence unless " 'it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support" ' the jury's verdict." (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
To establish a violation of Vehicle Code section 20002, subdivision (a), the People must show the defendant "(1) knew he or she was involved in an accident; (2) knew damage resulted from the accident; and (3) knowingly and willfully left the scene of the accident (4) without giving the required information to the other driver(s)." (People v. Carbajal (1995) 10 Cal.4th 1114, 1123, fn. 10 (Carbajal).) Actual knowledge of property damage is not required; constructive knowledge may be imputed to the defendant based on the surrounding circumstances. (People v. Carter (1966) 243 Cal.App.2d 239, 241-242.)
Although a damaged bicycle was not found at the scene, Romain stated numerous times he thought he hit a bicycle. He told his passengers, his friend, and the CHP officers he thought he hit a bicycle. In his message to his wife immediately after the accident, Romain described how he saw a homeless person with a bicycle on the freeway and his car "grabbed" the bicycle with such force as to cause his vehicle to fly into the air and bounce to the ground more than once. The jury could have credited Romain's admission he hit a bicycle. Based on his account of the accident in his message to his wife along with the damage sustained to Romain's vehicle, a jury could reasonably infer a bicycle struck in the manner described sustained damage. The fact a bicycle was not found at the scene does not mean it did not exist. There was evidence from the passenger in the front seat and witness N.S. that another individual was present on the side of the freeway during and after the incident. Because Romain left the scene, we do not know what could have occurred to any bicycle in the gap of time between the accident and when witness N.S. arrived on scene.
Even if Romain struck only the victim (whether she was dead or alive) the People also point out there was evidence of property damage to the victim's clothing based on grease stains on the victim's clothes and fragments of clothing seen in the undercarriage of Romain's vehicle. Although this was not mentioned specifically by the prosecutor in closing statements, the jury could have relied upon this evidence of property damage, no matter how slight, in considering the court's instructions. (Carbajal, supra, 10 Cal.4th at p. 1124 [the offense under Veh. Code, § 20002, subd. (a) is " 'complete upon the "running" whether or not his conduct caused substantial or minimal (or indeed any) damage or injury' "]; see also People v. Dimacali (2019) 32 Cal.App.5th 822, 829.) Considering the record as a whole, we conclude there was substantial evidence to support the jury's conviction for hit-and-run with property damage under Vehicle Code section 20002, subdivision (a).
The jury acquitted Romain of hit-and-run involving death or permanent serious injury and hung on the issue of hit-and-run involving injury after submitting a jury note asking, "If someone is already dead, can we state that the accident caused injury?"
Romain contends his constitutional rights were violated because he was not charged with hit-and-run with property damage. Although the felony complaint charged only a violation of Vehicle Code section 20001, subdivison (b)(2) for hit-and-run with death or permanent serious injury, we conclude Romain forfeited his claim based on lack of notice by failing to object to the jury instructions and special verdict forms at the time of trial. We begin with a procedural overview.
In discussing the jury instructions, the court inquired about giving CALCRIM No. 2142 regarding lesser included offenses. Defense counsel pointed out there was only one charge in the case. Since she was not asking for instruction on lesser offenses, she thought the instruction would confuse the jury.
CALCRIM No. 2142 states, "The crime[s] of (failing to perform a legal duty following a vehicle accident that caused injury/ [and] failing to perform a legal duty following a vehicle accident that caused property damage) (is a/are) lesser crime[s] than failing to perform a legal duty following a vehicle accident that caused (death/ [or] permanent, serious injury).
"The People have the burden of proving beyond a reasonable doubt that the defendant committed the crime of failing to perform a legal duty following a vehicle accident that caused (death/ [or] permanent, serious injury) rather than a lesser offense. If the People have not met this burden, you must find the defendant not guilty of failing to perform a legal duty following a vehicle accident that caused (death/ [or] permanent, serious injury). You must consider whether the defendant is guilty of the lesser crime[s] of [failing to perform a legal duty following a vehicle accident that caused injury] [or] [failing to perform a legal duty following a vehicle accident that caused property damage]."
The Bench Notes for CALCRIM No. 2142 recommend giving this instruction when "the defendant is charged with leaving the scene of an accident resulting in death or permanent, serious injury and the court is instructing on the lesser offense of leaving the scene of an accident resulting in injury, and/or leaving the scene of an accident resulting in property damage."
The prosecutor referred to the audio message in which Romain told his wife he hit a bicycle. The prosecutor argued this was an admission sufficient for the jury to find him guilty of hit-and-run causing property damage and warranted giving an instruction on the lesser offense. The prosecutor agreed this was a new theory, but stated it was warranted based on how the evidence came out in the case.
Defense counsel stated she did not think there was evidence of property damage beyond damage to Romain's vehicle. She thought an instruction regarding hit-and-run with property damage was unnecessary and confusing. However, she did not object based on lack of notice.
The court noted Romain's testimony about hitting a bicycle or a shopping cart and stated the question for the jury was whether he hit a person or a thing. Defense counsel again said it was unnecessary because it gave the jury two bites at the same apple. The prosecutor provided separate verdict forms.
The court noted there was "a heavy theme throughout [trial] ... that the defendant made statements that he believes he hit a thing, a bicycle or the shopping cart." Therefore, the court did not believe it would be confusing for the jury to consider the lesser offense involving property damage if the jury could not find death or serious bodily injury on count 1. Defense counsel then submitted to giving CALCRIM No. 2150 along with related jury instructions and verdict forms.
The court instructed the jury with CALCRIM No. 2140 (Failure to Perform Duty Following Accident: Death or Permanent Injury), No. 2142 (Failure to Perform Duty Following Accident: Lesser Included Offense), a modified version of No. 2140 regarding failure to perform a legal duty following an accident causing injury but not death or permanent injury, and No. 2150 (Failure to Perform Duty Following Accident: Property Damage). The court advised the jury the crime of failing to perform a legal duty following an accident that caused property damage was a lesser crime than failing to perform a legal duty following an accident that caused death or permanent serious injury. The court instructed the jury to consider whether Romain was guilty of the lesser crime only if they found Romain not guilty of the crime of failing to perform a legal duty following an accident that caused death or permanent serious injury.
In People v. Carter (1966) 243 Cal.App.2d 239, the case relied upon by Romain, the defendant was convicted for felony hit-and-run driving with injury under Vehicle Code section 20001 following a collision between two automobiles at an intersection. The defendant's fender was slightly damaged, as was the front bumper of the other car. (Carter, at p. 240.) After defendant asked if anyone was hurt and the other driver said he did not think so, the defendant drove away without providing his information. (Id. at p. 241.) On appeal, the court agreed the conviction could not be supported because the defendant did not have knowledge of personal injury resulting from the accident. The court noted the circumstances of the accident were not sufficiently severe to impute constructive knowledge of injury. (Ibid.) Since the defendant in that case was not charged with hit-and-run with property damage under Vehicle Code section 20002, the court stated it could not sustain the defendant's conviction on the lesser offense, even though the evidence clearly supported such a conviction. The court commented that a violation of Vehicle Code section 20002 is not "necessarily" a lesser included offense to a charge under Vehicle Code section 20001 because an accident resulting in personal injury "does not necessarily result in property damage, as for example, an accident in which an automobile hits a pedestrian or one in which a mild bumper-to-bumper rear-end collision causes whiplash injury but not property damage." (Carter, at p. 242.)
The case before us did not involve a minor fender-bender. As the court stated, there was no evidence in this case Romain "just hit air or a rock. All the evidence is that he hit something." The question was whether he hit a human or an object, such as a bicycle. Whatever Romain hit caused a violent impact and significant damage to his own vehicle and there was evidence the collision at least damaged the victim's clothing. Nevertheless, we do not need to reach the issue of whether a violation of Vehicle Code section 20002 is a lesser included or lesser related offense of a violation of Vehicle Code section 20001, subdivision (a) involving death or permanent serious injury because Romain did not object to the addition of the jury instructions and special verdict form, which effectively amended the complaint.
"An information may be amended 'for any defect or insufficiency, at any stage of the proceedings,' so long as the amended information does not 'charge an offense not shown by the evidence taken at the preliminary examination.' ([Pen. Code, ]§ 1009.) 'If the substantial rights of the defendant would be prejudiced by the amendment, a reasonable postponement not longer than the ends of justice require may be granted.' [Citation.] If there is no prejudice, an amendment may be granted 'up to and including the close of trial.' " (People v. Goolsby (2015) 62 Cal.4th 360, 367-368.) " ' "There is no difference in principle between adding a new offense at trial by amending the information and adding the same charge by verdict forms and jury instructions." [Citation.] The defendant forfeits any lack of notice by failing to object.' " (Id. at p. 367, citing People v. Toro (1989) 47 Cal.3d 966, 976, fn. omitted.)
We do not agree that an objection based on lack of notice would have been futile. Had defense counsel objected based on lack of notice, the court could have amended the complaint according to proof, it could have considered a continuance, and/or the court could have entertained further briefing or discussion on the issue. Defense counsel may have had a strategic reason for allowing the issue to go to the jury because it offered the jury the opportunity to acquit Romain of the felony and convict him only of the lesser misdemeanor crime of hit-and-run with property damage.
" '[W]ith certain exceptions, an appellate court will not consider claims of error that could have been—but were not—raised in the trial court.... It is both unfair and inefficient to permit a claim of error on appeal that, if timely brought to the attention of the trial court, could have been easily corrected or avoided.' " (People v. Ramirez (2003) 109 Cal.App.4th 992, 998.)
The judgment is affirmed.
McCONNELL, P. J. WE CONCUR: HALLER, J. GUERRERO, J.