Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 08WF2268 James Patrick Marion, Judge.
Kathleen Woods Novoa, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., and Lilia E. Garcia, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RYLAARSDAM, ACTING P. J.
A jury convicted defendant Kenneth John McNair of one count of gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a)), with a true finding he fled the scene (Veh. Code, § 20001, subd. (c); all further statutory references are to this code unless otherwise stated), and misdemeanor driving without a license (§ 12500, subd. (a)); the court sentenced him to 11 years in prison. Defendant appeals, asserting there was insufficient evidence to support the hit and run enhancement and the court erred in giving a flight instruction. We find no error and affirm.
FACTS
After he had at least 12 alcoholic beverages over the course of an evening defendant, with a passenger, later identified as Aaron Ybarra, in tow, got in a car and drove between 100 to 150 miles per hour on city streets. Running a red light he sideswiped one car and rear-ended a Mustang and then collided with a tractor trailer driven by Michael Delp. After the impact the Mustang exploded and burst into flames, killing the driver.
Delp saw defendant and Ybarra get out of the car and begin “walking kind of dazed towards the back of [his] trailer.” When police arrived within several minutes of the collisions, an officer spoke with Delp and asked about the people in the Honda. Delp directed him to the back of the trailer; defendant and Ybarra were not there but were walking down the street away from the scene.
Cole Moulton was standing in a parking lot at the time of the collisions. After entering a nearby store to have someone call an ambulance, he ran toward the scene along with other bystanders. He saw two people slowly walking down the street away from the crash. One of the two, apparently Ybarra, said, “Let’s get out of here.” Moulton also thought one of the passengers shouted, “Get out, get out, get out, get out.” He believed this was directed at someone in the Mustang. He could not be sure the person who shouted this was one of the two men walking away from the crash.
Officer Anthony Gonzalez arrived at the scene within six minutes of the collisions, after hearing on the radio that two people involved were reportedly walking away. When he saw them walking they were about a block from the scene; he stopped and spoke to them. Both were unsteady on their feet, smelled of alcohol, and had bloodshot eyes and slurred speech. Gonzalez asked defendant where he had been and where he was going but received no response. He asked both whether they had been in an accident. Again, there was no answer and both men stared at the ground. When Gonzalez asked if either had been driving, defendant nodded and said he had been driving the Honda. Defendant answered all of Gonzalez’s questions except those dealing with the specifics of the collision.
Defendant was taken into custody and an hour and forty five minutes after the collisions his blood alcohol was.257.
Defendant testified he remembered driving and the next thing he recalled was talking to the officers after the collisions, about which he remembered little. He saw the fire but thought it was his own car. He had no memory of leaving the scene.
DISCUSSION
1. Sufficient Evidence of Hit and Run Enhancement
a. Introduction
Defendant contends there was insufficient evidence supporting the true finding that he fled the scene because the prosecution failed to prove two elements, knowledge of injury and flight. This claim has no merit.
“‘When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.] We determine ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ [Citation.] In so doing, a reviewing court ‘presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ [Citation.] ‘This standard applies whether direct or circumstantial evidence is involved.’ [Citation.]” (People v. Avila (2009) 46 Cal.4th 680, 701, italics omitted.) It is not within our province to reweigh the evidence or redetermine issues of credibility. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) Further, “[u]nless it is clearly shown that ‘on no hypothesis whatever is there sufficient substantial evidence to support the verdict’ the conviction will not be reversed. [Citation.]” (People v. Quintero (2006) 135 Cal.App.4th 1152, 1162.) “‘[I]f the circumstances reasonably justify the... findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding.’ [Citation.]” (People v. Guerra (2006) 37 Cal.4th 1067, 1129.)
Section 20001, subdivision (c) provides for a five-year sentencing enhancement for a person who leaves the scene of an accident if convicted of gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5). Case law has established that one element of the enhancement is the defendant’s knowledge someone has been injured. (People v. Nordberg (2010) 189 Cal.App.4th 1228, 1237-1238.) Knowledge is proven by evidence the defendant “‘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.’ [Citations.]” (Id. at p. 1237.)
b. Knowledge of Injury
Defendant contends the evidence does not support a finding he knew anyone had been injured. He points to a witness’s statement he seemed “[w]ide-eyed. Confused. Dazed” after a “serious car accident.” He did not answer some of the responding officer’s questions “appropriately, ” and claimed he did not remember the collision. He argues the main evidence on which the prosecution relied was the witness who heard defendant’s passenger say, “Let’s get out of here.” And an occupant of the Honda, who may or may not have been one of the two walking away from the collision, yelled “Get out, ” presumably to someone in the Mustang. He asserts this is weak evidence that is not sufficient.
But this was not the only evidence. Defendant was going 100 miles an hour when he hit a car, which only moments later burst into flames. And, although he claimed he thought it was his own car burning, the fact he was aware of the fire is evidence of an accident so significant defendant could reasonably know someone was injured. As to his claim he did not remember the collision, “defendant’s simple denial of the requisite knowledge is not determinative. [Citation.]” (People v. Nordberg, supra, 189 Cal.App.4th at p. 1238.) Moreover, defendant was able to answer all of the officer’s questions except those regarding the details of the collisions. A reasonable inference is that defendant was not truthful when he said he did not remember.
c. Flight
Defendant also asserts there is insufficient evidence he fled from the scene. But despite his conclusory claim that “[t]here is no question” he stopped, he cites to and we see no evidence of that. He seems to rely on the fact that Delp, the truck driver, did not need assistance and had been in a larger vehicle. And, due to the fire, defendant could not have helped the Mustang’s occupant. But nothing in section 20001, subdivision (c) requires proof of a failure to render aid.
Likewise, his reliance on the fact he did not run from the scene but walked away slowly is not persuasive. That he still could be seen when police arrived and provided his identification when requested is irrelevant to the question of flight. He points out that if he were trying to do so he would not have been walking slowly and police would not have been able to locate him so quickly. The fortuitous fact that police arrived quickly has nothing to do with defendant’s conduct in leaving the scene. Moreover, that section 20001, subdivision (c) was enacted, at least in part, to deter drivers from fleeing to avoid testing of their blood alcohol (People v. Calhoun (2007) 40 Cal.4th 398, 404) does not help defendant. Finally, the claim that the requirement he report the accident pursuant to section 20004 was “redundant and unnecessary” because police were aware of it once they arrive on scene, within a few minutes of the collisions, is without merit. Reporting is not the issue; flight is.
Instead the evidence shows defendant walked away from the scene without doing anything, such as calling 911 or checking on passengers in the three vehicles he had hit. He only stopped when police pulled up next to him. This was sufficient to show flight.
2. CALCRIM No. 372
The court instructed the jury with CALCRIM No. 372, which provides: “[a]s to the charged counts and lesser crimes, if the defendant fled or tried to flee immediately after the crime was committed, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled cannot prove guilt by itself.” Defendant claims the court erred by giving this instruction because it “improperly focused the jury’s attention on [the] alleged evidence of ‘flight’....”
A flight instruction must be given when “evidence of flight of a defendant is relied upon as tending to show guilt....” (Pen. Code, § 1127c.) “‘In general, a flight instruction “is proper where the evidence shows that the defendant departed the crime scene under circumstances suggesting that his movement was motivated by a consciousness of guilt.”’ [Citations.] Evidence that a defendant left the scene is not alone sufficient; instead, the circumstances of departure must suggest ‘a purpose to avoid being observed or arrested.’ [Citations.] To obtain the instruction, the prosecution need not prove the defendant in fact fled, i.e., departed the scene to avoid arrest, only that a jury could find the defendant fled and permissibly infer a consciousness of guilt from the evidence. [Citation.]” (People v. Bonilla (2007) 41 Cal.4th 313, 328.) The evidence was sufficient to support such a finding.
Relying on federal and out-of-state appellate decisions, defendant spends some time discussing the validity of flight instructions. To the extent these cases differ from California law we are not bound by them. (People v. Troyer (2011) 51 Cal.4th 599, 610 [out of state cases]; People v. Williams (1997) 16 Cal.4th 153, 190 [federal appellate decisions].) Moreover, within this context, defendant never explains why the instruction was improper.
Further, defendant concedes our Supreme Court has rejected challenges to the giving of this instruction on numerous grounds. (People v. Mendoza (2000) 24 Cal.4th 130, 179-181.) Yet he argues giving the instruction in this case was error because “it focuse[d] the jury’s attention on” the evidence of flight and may have caused the jury to give it “undue weight.” The problem here, he asserts, was that the jury was also considering the enhancement, an element of which is flight, and the instruction decreased the prosecution’s burden of proof. But defendant has not shown why this argument falls outside of Mendoza, which flatly rejected the same argument, although the case did not deal with a flight enhancement. (Id. at p. 181.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: ARONSON, J., IKOLA, J.