From Casetext: Smarter Legal Research

People v. Sanders

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION ONE
Feb 16, 2012
B229835 (Cal. Ct. App. Feb. 16, 2012)

Opinion

B229835

02-16-2012

THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER SANDERS, Defendant and Appellant.

Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Michael C. Keller and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. BA364132)

APPEAL from a judgment of the Superior Court of Los Angeles County. Charlaine F. Olmedo, Judge. Affirmed in part, reversed in part and remanded.

Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Michael C. Keller and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.

Christopher Sanders appeals from a judgment entered after a jury found him guilty of assault with a deadly weapon (an automobile), corporal injury to a cohabitant/mother of Sanders's child, failure to perform a duty at the scene of an accident, and failure to appear while on bail. The jury found deadly weapon and great bodily injury enhancements to be true. The trial court sentenced Sanders to five years in prison.

Sanders contends that the trial court erred when it refused to give a pinpoint instruction on accident, at his request. We agree and find that the error was prejudicial. We therefore reverse the convictions for assault with a deadly weapon, corporal injury and failure to perform a duty at the scene of an accident (counts 1, 2 and 3).

We also reverse an enhancement the trial court imposed on count 4 (failure to appear while on bail) under Penal Code section 12022.1, subdivision (b), because the jury did not make a finding and Sanders did not admit the special allegation or waive jury trial on it. The People concede the error.

Statutory references are to the Penal Code unless otherwise indicated.

BACKGROUND

Prosecution Case

The March 13, 2008 incident (counts 1, 2 & 3)

Testimony of Brittany Turner

Sanders and the victim, Brittany Turner, met in Texas in 2004 and began dating in or about the fall of 2005. According to Turner, Sanders began verbally abusing her about five or six months after they began dating. Turner testified that the verbal abuse escalated to psychological abuse (manipulation and threats) and then to physical abuse.In October 2007, Sanders and Turner moved to California.

Turner testified about two incidents of physical abuse by Sanders which preceded the incident at issue in this case. The prosecution called two of Sanders's prior girlfriends, who also testified that Sanders had verbally and physically abused them. Because evidence of Sanders's prior acts of domestic violence is not relevant to our resolution of the issues on appeal—and the parties do not argue otherwise—we will not describe these prior incidents.

In February 2008, Turner and Sanders had a baby. In March 2008, Turner ended her relationship with Sanders. She was planning to move with the baby to Texas to be near her family. One or two days before Turner was scheduled to leave, Sanders saw her moving boxes and Turner told him that she was moving out of the home they shared. Sanders did not respond.

On March 13, 2008, the date of the incident, Turner had a medical appointment at Cedars-Sinai Medical Center in Los Angeles. She had arranged for an acquaintance of Sanders's to pick her up and drive her to the appointment. She was still living with Sanders at the time. The acquaintance never showed up, but Sanders arrived and said that he would drive her to the appointment. Turner told Sanders that she did not want to go with him. According to Turner, Sanders stated "that he wouldn't pull any shit and he just wanted to talk." Turner agreed to go with him.

Sanders drove Turner and the baby to Cedars-Sinai in his Ford Excursion sport utility vehicle. Turner sat in the back seat next to the baby. During the ride, Sanders was talking to Turner about his father's death. According to Turner, Sanders was crying and telling her that he missed his father. When asked to describe Sanders's "emotional state," Turner responded that it was "pathetic." Turner also stated that Sanders was complaining that she had dyed her hair a different color.

When they arrived at Cedars-Sinai, Sanders drove his vehicle into a parking garage. After he parked, Turner exited the rear passenger side door and walked around the vehicle to the rear driver side door to unbuckle the baby's car seat carrier, which was secured behind the driver's seat. Sanders, who was still sitting in the driver's seat, turned around and manually locked the rear driver side door. According to Turner, Sanders said to her, "'I am going to be shanghaiing your baby now so that you can know exactly how I feel.'" Turner believed Sanders meant that he was kidnapping the baby. She responded, "Like hell you are."

Turner jumped up onto the step, located outside the driver side door of the vehicle. She reached into the front driver side window with her left arm and tried to unlock the rear driver side door. Sanders rolled up the window, closing it on Turner's arm. Sanders drove the vehicle in reverse. While the vehicle was moving backward out of the parking spot, Sanders rolled down the window, freeing Turner's arm. Turner "flew off the car and landed on [her] back," outside the parking spot in an aisle where cars drive through the parking lot.

Sanders continued to drive in reverse until the front of the vehicle was "directly behind" Turner. The vehicle came to a stop. Then Sanders drove forward. The rear driver side tire rolled over Turner's left leg, starting at her buttocks and traveling to her foot. According to Turner, only "[a] matter of seconds" went by between the time she jumped up onto the step of the vehicle and the vehicle rolled over her leg.

Sanders continued to drive forward, "speeding down the aisle," with the baby still in the vehicle. Turner saw the vehicle make a left turn in the parking lot and then drive out of her sight.

Turner was still on the ground "in the middle of the aisle" when she heard Sanders's vehicle "screech," and then saw it "speeding [back] down" the aisle toward her. Turner got behind a row of parked cars to avoid being hit again. The vehicle "veered off" and drove "down another aisle," heading toward the exit of the parking garage.

Turner saw the vehicle "stop very suddenly" and then saw Sanders "running away from the car." Turner "got up" and "ran over [to the vehicle] to find [the] baby." She had to run through one or two aisles of cars to reach the vehicle. She picked up the baby. Then she looked down at her leg and started to feel pain.

Someone placed Turner in a wheelchair and took her inside the hospital. She was admitted and treated there. Police officers spoke to her and took pictures of the injuries to her left knee and leg, her back and her left elbow, forearm and wrist. She remained at the hospital for nine hours. The morning after Turner was released from the hospital, she and her father flew to Texas.

By the time of trial (October 2010), Turner had had six lumbar shots to treat the pain in her left leg. She had to have patches that "act like fake skin" placed on the back of her left knee to heal her skin. She participated in five months of physical therapy for her leg. At the time of trial, she was still experiencing pain in her left leg and taking medication to treat the pain.

Testimony of Juan Quinteros

Juan Quinteros, who was working as a parking attendant in the parking garage where the incident occurred, witnessed the events. He saw Turner "struggling" with Sanders. Turner was standing outside the front driver side window of the vehicle. She appeared to be trying to pull Sanders out of the driver's seat of the vehicle or trying to prevent him from starting the engine of the vehicle. Then Turner moved to the rear driver side window and appeared to be trying to pull the baby out of the vehicle through the window.

Quinteros saw the vehicle start to move backward. Turner was hanging from the window as the vehicle moved. Quinteros heard her screaming, "'I want my baby, I want my baby.'" The vehicle stopped and then started moving forward. Turner was still hanging from the rear driver side window of the vehicle by her arms. Turner let go and fell to the ground as the vehicle was moving forward at about five to eight miles per hour. According to Quinteros, "the same instant" that Turner fell, the rear driver side tire of the vehicle ran over her leg. Only one second elapsed between the time Turner fell and the vehicle ran over her leg.

The vehicle drove away from Turner, turned around, and headed back toward the exit. The vehicle came to a stop before reaching the exit when it was blocked by Quinteros's co-worker. Quinteros approached the vehicle and found only the baby inside. Sanders was gone.

Testimony of Edwin Estrada

Edwin Estrada is another parking attendant who was working in the parking garage when the incident occurred. He saw Turner standing near the rear of the vehicle and it looked like she was "trying to get something out of it." Later he saw "the accident" during which the vehicle ran over Turner's leg. Then Estrada saw the vehicle drive to the "rear part of the parking" garage. There is no exit in that part of the parking garage. The vehicle drove back fast toward Turner. It appeared to Estrada that Sanders "was trying to run her over again." Turner moved out of the way, and the vehicle drove toward the exit. Estrada ran toward the exit to try to prevent Sanders from leaving the parking garage. The vehicle stopped. Estrada and others approached Sanders and asked him to turn over his keys. Sanders got out of the vehicle and ran inside the hospital. Estrada saw him go upstairs to the second level. Estrada chased Sanders but did not catch him.

Failure to appear while on bail on November 7, 2008 (count 4)

David Marquez, a courtroom clerk, testified regarding proceedings and minute orders issued in trial court case number BA338593 in which Sanders was the defendant. On October 2, 2008, Sanders appeared with his counsel in that case and was ordered to return to court on November 7, 2008. Marquez testified that, on November 7, 2008, Sanders failed to appear and a bench warrant was issued and his bail was forfeited. Defense Case

We do not summarize here the testimony from defense character witnesses because it is not germane to the issues on appeal.

The March 13, 2008 incident

Testimony of Sanders

During the ride to Cedars-Sinai, Sanders tried to talk to Turner about the death of his father, which had occurred a few weeks before the incident. Sanders was upset because he believed that Turner did not want to hear him talk about it. As Sanders parked his vehicle in the parking garage at Cedars-Sinai, he and Turner were arguing. Sanders told Turner that he did not like the new color that she had dyed her hair (orange).

Then Sanders and Turner started arguing about who was going to stay with the baby while Turner went to her medical appointment. According to Sanders, Turner had not slept for three days. She had a fever and an infection, which was why she was going to the doctor that morning. Sanders believed that Turner was "seeing things that weren't there and hallucinating." Sanders was concerned because Turner had taken medication twice that morning, and he believed she needed to eat food with the medication. He told her that he would take the baby and go get her some food while she went to her appointment. Turner stated that she wanted to take the baby with her.

Turner exited the rear passenger door and walked around to the driver side. As Sanders was backing the vehicle out of the parking space, Turner jumped onto the step outside the driver side door. She told Sanders that she wanted to take the baby. Sanders stopped the vehicle and told Turner to get off. Turner jumped off and landed on her two feet. Sanders continued to back the vehicle out of the parking space.

Sanders drove forward at about five miles per hour. He passed Turner, who was walking toward the hospital entrance on the driver side of the vehicle. He heard the rear driver side door handle make a "click[ing]" sound. Sanders did not see (or feel) Turner jump back onto the step of the vehicle. But looking back on the incident at the time of trial, Sanders believed that Turner must have jumped back onto the vehicle at this point.

After Sanders heard the back door "click," he slowed the vehicle down and came to a stop after driving about 20 more feet. Sanders looked in his mirror and did not see anything. He did not know that he had run over Turner.

Sanders continued to drive forward and then made a left turn and drove back down the next aisle of the parking lot. He saw a parking attendant (Quinteros) running toward the back of his vehicle. Sanders stopped the vehicle. Turner ran up to the vehicle and accused Sanders of stealing the vehicle and stealing the baby. Given the manner in which Turner ran over to the vehicle, Sanders did not realize that he had run her over.

As Turner continued to scream "hysterically" and people started to gather around, Sanders backed away from the vehicle. So that people would know that he was not trying to steal the baby or the vehicle, Sanders stated, "'The baby and the car and the keys are here.'"

As Sanders moved toward the entrance to the emergency room, he saw three nurses. He told them that he needed help because his girlfriend was "having another episode." Two of the nurses went over to his vehicle and one stayed and talked to him. He asked the nurse where he could find help for Turner's "medical disorder."

Sanders "went into the hospital, looking for a neurologist or a person that deals with mental patients." He talked to several emergency room doctors but was unable to find a doctor for Turner. He went up to the second floor where Turner's OB-GYN was located, figuring that Turner had gone there for her appointment. Sanders did not find Turner there.

Sanders left the hospital to go get Turner food from a restaurant she liked. When he returned, he went back to the office where Turner had her scheduled appointment. He then went to the parking lot and saw that his vehicle had been parked and locked. He did not have the keys. He left the hospital.

During his trial testimony, Sanders denied the prior incidents of domestic violence presented by the prosecution involving Turner and two other ex-girlfriends.

Verdicts and Sentencing

The jury found Sanders guilty of assault with a deadly weapon (§ 245, subd. (a)(1); count 1), corporal injury to a cohabitant/parent (§ 273.5, subd. (a); count 2), failure to perform a duty at the scene of an accident (Veh. Code, § 20001, subd. (a); count 3), and failure to appear while on bail (§ 1320.5; count 4). On count 1, the jury found true the allegations that Sanders personally used a deadly weapon (an automobile) within the meaning of section 12022, subdivision (b)(1), and personally inflicted great bodily injury on Turner within the meaning of section 12022.7, subdivision (e).

On count 1, the trial court sentenced Sanders to five years in prison: the low term of two years on the offense, plus the low term of three years for the great bodily injury enhancement. The court stayed the deadly weapon enhancement on count 1. The court also stayed the sentence on count 2 under section 654. On count 3, the court sentenced Sanders to the low term of 16 months, to run concurrently with the sentence on count 1. On count 4, the court sentenced Sanders to a term of three years and four months, to run concurrently with the sentence on count 1: the low term of 16 months on the offense (§ 1170, subd. (h)), plus two years for the enhancement under section 12022.1, subdivision (b).

Section 12022.1, subdivision (b), provides: "Any person arrested for a secondary offense which was alleged to have been committed while that person was released from custody on a primary offense shall be subject to a penalty enhancement of an additional two years in state prison which shall be served consecutive to any other term imposed by the court." As discussed more fully below, the jury did not make a finding on this enhancement, and Sanders did not admit the allegation or waive jury trial on it.

DISCUSSION

Refusal to Instruct on Accident

Proceedings below

In his opening statement, the prosecutor stated that Sanders "purposely drove over" Turner, while defense counsel characterized the incident as "an accident."

During the parties' discussions with the trial court regarding jury instructions, defense counsel requested that the trial court instruct the jury on accident (CALCRIM 3404) and mistake of fact (CALCRIM No. 3406). Counsel asserted that accident was a defense to counts 1 and 2 (assault with a deadly weapon and corporal injury to cohabitant/parent), and mistake of fact was a defense to count 3 (failure to perform a duty at the scene of an accident). Counsel stated that the mistake of fact was that Sanders "didn't know that she [Turner] was hit."

The trial court instructed the jury on mistake of fact, but declined to instruct on accident. The court noted that there is no sua sponte duty to instruct on accident, and concluded that such an instruction was not supported by the evidence. The court stated: "But this [instruction] says that the defendant is not guilty if he acted without the intent required for the crime but acted instead accidentally. He drove the car on purpose. The question is did he know that he hit someone, not that he drove the car accidentally. He drove the car. It was a volitional act for him to put the gas pedal in an accelerated mode. What he claims is that he didn't know that she was there."

Using CALCRIM No. 3406, the trial court instructed the jury as follows on mistake of fact: "The defendant is not guilty of Counts One, Two or Three if he did not have the intent or mental state required to commit the crime because he reasonably did not know a fact or reasonably and mistakenly believed a fact. [¶] If the defendant's conduct would have been lawful under the facts as he reasonably believed them to be, he did not commit Counts One, Two or Three. [¶] If you find that the defendant believed that he did not run over Brittany Turner and if you find that belief was reasonable, he did not have the intent or mental state required for Counts One, Two or Three. [¶] If you have a reasonable doubt whether the defendant had the intent or mental state required for Counts One, Two or Three, you must find him not guilty of those crimes."
--------

In closing argument, defense counsel argued that Sanders drove over Turner accidentally and did not have the criminal intent required to commit assault with a deadly weapon or corporal injury. Counsel referenced the instruction on mistake of fact, and told the jury: "Do you believe that was a mistake? If you believe that was an accident, he didn't have the requisite intent. You have to find him not guilty."

Applicable law and Analysis re Counts 1 and 2

No crime is committed by a person who commits the act charged through misfortune or by accident, "when it appears that there was no evil design, intention, or culpable negligence." (§ 26.) "The defense appears in CALCRIM No. 3404, which explains a defendant is not guilty of a charged crime if he or she acted 'without the intent required for that crime, but acted instead accidentally.'" (People v. Anderson (2011) 51 Cal.4th 989, 996, quoting CALCRIM No. 3404.)

"'"[W]hen a defendant presents evidence to attempt to negate or rebut the prosecution's proof of an element of the offense, a defendant is not presenting a special defense invoking sua sponte instructional duties. While a court may well have a duty to give a 'pinpoint' instruction relating such evidence to the elements of the offense and to the jury's duty to acquit if the evidence produces a reasonable doubt, such 'pinpoint' instructions are not required to be given sua sponte and must be given only upon request."' [Citation.]" (People v. Anderson, supra, 51 Cal.4th at pp. 996-997.) The claim that a charged offense "'was committed through misfortune or accident "amounts to a claim that the defendant acted without forming the mental state necessary to make his or her actions a crime."'" (Id. at p. 997.) Where a defendant presents substantial evidence of accident, the trial court is obligated "to provide an appropriate pinpoint instruction upon request by the defense." (Id. at p. 998.)

The People do not dispute Sanders's contention that the trial court erred in refusing to instruct on accident. There is substantial evidence in the record negating the prosecution's proof that Sanders formed the mental state necessary to commit the crimes charged in counts 1 and 2 (assault with a deadly weapon and corporal injury).

Sanders testified that when he heard the back door of his vehicle "click" as he was driving forward, he slowed the vehicle down and came to a stop after driving about 20 more feet. He did not realize as he was driving forward that Turner had jumped onto the vehicle a second time, had fallen off, and had slipped underneath the vehicle. Parking attendant Juan Quinteros testified that one second elapsed between the time that Turner fell off the vehicle and was run over.

Sanders did drive the car purposely, as the trial court pointed out. But the evidence described above supports Sanders's claim that when he drove the car, he was not "aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone," a required element for the crime of assault with a deadly weapon. (CALCRIM No. 875 [assault with a deadly weapon].) The same evidence supports Sanders's claim that he did not willfully inflict a physical injury on Turner, as required for the crime of corporal injury to a cohabitant/parent. (See People v. Gonzales (1999) 74 Cal.App.4th 382, 390, disapproved on other grounds in People v. Anderson, supra, 51 Cal.4th at p. 998, fn. 3 [substantial evidence supported accident defense to charges of corporal injury and battery where witnesses testified that the victim's "injuries were caused accidentally when she was struck by the door as appellant entered the bathroom"].)

Based on the substantial evidence in the record that Sanders accidentally ran over Turner and injured her, the trial court erred in refusing Sanders's request for an instruction on accident.

Sanders contends that the error was prejudicial and requires that his convictions on counts 1 and 2 (assault with a deadly weapon and corporal injury) be reversed. The People argue that the error was harmless.

Our Supreme Court has "not yet determined what test of prejudice applies to the failure to instruct on an affirmative defense." (People v. Salas (2006) 37 Cal.4th 967, 984.) For the reasons set forth below, we find that the trial court's error in refusing to provide a pinpoint instruction on accident was prejudicial under both the harmless beyond a reasonable doubt standard of Chapman v. California (1967) 386 U.S. 18, 24, or the less stringent standard articulated in People v. Watson (1956) 46 Cal.2d 818, 836, of a reasonable probability of a more favorable result in the absence of the error.

"In determining whether instructional error was harmless, relevant inquiries are whether 'the factual question posed by the omitted instruction necessarily was resolved adversely to the defendant under other, properly given instructions' [citation] and whether the 'defendant effectively conceded the issue' [citation]. A reviewing court considers 'the specific language challenged, the instructions as a whole[,] the jury's findings' [citation], and counsel's closing arguments to determine whether the instructional error 'would have misled a reasonable jury . . . .' [Citation.]" (People v. Eid (2010) 187 Cal.App.4th 859, 883.)

Sanders argued to the jury that he did not have the requisite intent for assault with a deadly weapon or corporal injury because he accidentally struck Turner with the vehicle. But the jury was not given an instruction which supported his argument.

The People maintain that the instruction on mistake of fact (CALCRIM No. 3406), which was given to the jury, was sufficient to cover Sanders's accident defense as well. We disagree. The jury was instructed that the mistake of fact was that Sanders "believed that he did not run over Brittany Turner." A finding that Sanders did believe that he had run over Turner is not inconsistent with his accident defense to counts 1 and 2. The jury reasonably could have found that Sanders accidentally hit Turner, realized that he hit her and wrongfully left the scene of the accident. Under this scenario, the mistake of fact defense would only go to count 3 for failure to perform a duty at the scene of an accident, as Sanders argued during the parties' discussions with the trial court regarding jury instructions.

During closing argument, Sanders's counsel tried to fit the accident defense within the mistake of fact instruction. After reviewing the mistake of fact instruction with the jury, counsel stated: "Do you believe that was a mistake? If you believe that was an accident, he didn't have the requisite intent. You have to find him not guilty." The mistake of fact instruction, however, did not inform the jury that if Sanders accidentally hit Turner he was not guilty of counts 1 and 2, even if he realized before he left the scene that he had hit her.

The People also assert that the trial court's failure to instruct on accident was harmless because the jury was properly instructed on the intent required for the crimes. For example, on both counts 1 and 2, the jury was instructed that "[s]omeone commits an act willfully when he or she does it willingly or on purpose." (CALCRIM Nos. 3404 & 3406.) The jury was not instructed, however, on how to relate the instructions on intent with Sanders's arguments about the "accident." Defense counsel's attempt to fit the accident defense within the scope of the mistake of fact instruction certainly did not help clarify things for the jury, as discussed above. For these reasons, we conclude it is reasonably probable that the instructional error misled this jury and therefore was prejudicial error.

Finally, the People argue that "the evidence disputed any inference that appellant accidentally ran over Turner." The People reference the testimony by Turner and parking attendant Edwin Estrada that after Sanders ran over Turner, he drove away and then drove back fast, in a manner that looked like he might hit Turner again. The inference the People draw from this evidence—that Sanders purposely ran over Turner—is not the only reasonable inference the jury could have drawn. The evidence also supports the inference that Sanders was driving fast and erratically because he realized he had accidentally run over Turner and was trying to get to the exit of the parking garage so he could flee the scene. This evidence does not necessarily show that Sanders ran over Turner on purpose.

Based on the foregoing, we conclude that the trial court's error in refusing to instruct on accident was prejudicial. On the record before us, we cannot reject Sanders's claim that it is reasonably probable he would have obtained a more favorable result on counts 1 and 2 if the trial court had properly instructed the jury. Accordingly, we reverse Sanders's convictions for assault with a deadly weapon and corporal injury to cohabitant/parent.

Analysis re Count 3

We sent a letter to the parties asking them to file supplemental briefing "addressing whether the trial court's refusal to give CALCRIM No. 3404 on accident, requested by the defense to negate criminal intent, had any effect on the jury's verdict of guilty on count 3 for violation of Vehicle Code section 20001 [failure to perform a duty at the scene of an accident], in addition to counts 1 and 2 as raised by the parties on appeal." In his letter brief, Sanders argues that the trial court's error in refusing to give the instruction did have a prejudicial effect on count 3; the People argue that it did not have such an effect. For the reasons discussed below, we conclude that the trial court's error in refusing to instruct the jury on accident as to counts 1 and 2 had a prejudicial spillover effect on the jury's verdict on count 3.

As we have already discussed, it is reasonably probable that the jury could have believed that Sanders accidentally ran over Turner, based on the substantial evidence of accident presented at trial. A properly instructed jury could have decided based on the evidence that Sanders did not act with the intent required for counts 1 and 2 if he acted accidentally, and found him not guilty of these offenses. Moving on to count 3, the jury could have decided that, after accidentally running over Turner, Sanders either (1) realized that he had run her over before he left the scene and was therefore guilty on count 3 or (2) did not realize that he had run her over before he left the scene and was therefore not guilty on count 3.

This jury was not properly instructed. The trial court did not explain to this jury that if Sanders accidentally ran over Turner, he did not act with the mental state necessary to commit assault with a deadly weapon or corporal injury. Therefore, if this jury decided that Sanders accidentally ran over Turner, it is reasonably probable that the jury would nonetheless have found him guilty on counts 1 and 2 because the jury lacked a proper instruction on accident. Having found Sanders guilty of assault with a deadly weapon and corporal injury, the jury had no option but to find Sanders guilty on count 3, even if the jury had a reasonable doubt as to whether Sanders realized before he left the scene that he had run over Turner. A finding that Sanders had the criminal intent and therefore committed assault with a deadly weapon and corporal injury—even if based on the incorrect assumption that accidental conduct satisfies the mental element for these crimes—assured a guilty verdict on count 3 for failure to perform a duty at the scene of an accident.

The trial court's prejudicial error in failing to instruct on accident as to counts 1 and 2 had a prejudicial spillover effect on count 3. The trial court did not provide the jury with the full range of options for evaluating Sanders's conduct and determining whether he was guilty or not guilty of a crime. Accordingly, we reverse Sanders's conviction on count 3 for failure to perform a duty at the scene of an accident.

Enhancement of Count 4

As set forth above, on count 4 for failure to appear while on bail, the trial court imposed a two-year enhancement under section 12022.1, subdivision (b). Sanders contends that the trial court imposed this enhancement in error.

"The enhancement allegation provided in subdivision (b) shall be pleaded in the information or indictment which alleges the secondary offense, or in the information or indictment of the primary offense if a conviction has already occurred in the secondary offense, and shall be proved as provided by law." (§ 12022.1, subd. (c).) Unless the defendant admits the allegation, the prosecution "must prove the truth of the enhancing allegation at trial." (People v. Adams (1993) 6 Cal.4th 570, 572-573.)

The enhancement under section 12022.1, subdivision (b), was alleged in the information, but the jury did not make a finding on it. Sanders did not admit the allegation or waive jury trial on it. The People concede the error. The enhancement must be reversed and stricken.

Sentence on Count 3

On count 3 for failure to perform a duty at the scene of an accident under Vehicle Code section 20001, subdivision (a), the trial court imposed a 16-month term to run concurrently with the sentence on count 1 for assault with a deadly weapon. Sanders contends that the court should have stayed the sentence on count 3 under section 654 because the concurrent sentence is "double punishment." He argues that counts 1, 2 (corporal injury to cohabitant/spouse) and 3 are based on "one indivisible and continuous transaction" and "stemmed from a single possible intent and objective."

We briefly address this issue even though Sanders's convictions on counts 1, 2 and 3 are reversed. The issue is likely to arise at resentencing if Sanders is retried and convicted of assault with a deadly weapon (count 1) and/or corporal injury to a cohabitant/parent (count 2), and also failure to perform a duty at the scene of an accident (count 3).

Section 654, subdivision (a), provides in pertinent part that, "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." This provision precludes multiple punishments for a single act or indivisible course of conduct that is punishable under more than one criminal statute. "Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one." (Neal v. State of California (1960) 55 Cal.2d 11, 19; People v. Britt (2004) 32 Cal.4th 944, 951-952.)

"'The defendant's intent and objective are factual questions for the trial court; [to permit multiple punishments,] there must be evidence to support a finding the defendant formed a separate intent and objective for each offense for which he was sentenced. [Citation.]' [Citation.]" (People v. Coleman (1989) 48 Cal.3d 112, 162.) "A trial court's implied finding that a defendant harbored a separate intent and objective for each offense will be upheld on appeal if it is supported by substantial evidence." (People v. Blake (1998) 68 Cal.App.4th 509, 512.)

On counts 1 and 2, Sanders was punished for willfully driving over Turner with his vehicle. On count 3, he was punished for leaving the scene of an accident without performing the duties required under the Vehicle Code. There is substantial evidence that he left the scene in an attempt to avoid capture—he ran into the hospital as one of the parking attendants chased after him.

As the People point out, "'The gravamen of a [Vehicle Code] section 20001 offense . . . is not the initial injury of the victim, but leaving the scene without presenting identification or rendering aid.' [Citation.]" (People v. Harbert (2009) 170 Cal.App.4th 42, 59.) "'[T]he act made criminal'" under Vehicle Code section 20001 "'is not the "hitting" but the "running."'" (People v. Valdez (2010) 189 Cal.App.4th 82, 87.)

Section 654 did not bar multiple punishment for counts 1 and 3 because the crimes are based on different facts and involve separate intents and objectives.

DISPOSITION

Sanders's convictions on count 1 (assault with a deadly weapon), count 2 (corporal injury to cohabitant/parent) and count 3 (failure to perform a duty at the scene of an accident) are reversed. The enhancement imposed on count 4 (failure to appear while on bail) under Penal Code section 12022.1, subdivision (b), is reversed and stricken. The conviction on count 4 for failure to appear while on bail is affirmed. The matter is remanded for further proceedings.

NOT TO BE PUBLISHED.

CHANEY, J. We concur:

MALLANO, P. J. ROTHSCHILD, J.


Summaries of

People v. Sanders

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION ONE
Feb 16, 2012
B229835 (Cal. Ct. App. Feb. 16, 2012)
Case details for

People v. Sanders

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER SANDERS, Defendant…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION ONE

Date published: Feb 16, 2012

Citations

B229835 (Cal. Ct. App. Feb. 16, 2012)