Opinion
A159133
04-26-2021
THE PEOPLE, Plaintiff and Respondent, v. RICKY SANTOS, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Mendocino County Super. Ct. No. SCUKCRCR 18-93262)
Defendant Ricky Santos was involved in a minor automobile collision, stopped briefly, and left the scene without providing his identifying information. He was convicted by a jury of misdemeanor failure to perform duty at the scene of an accident (Veh. Code, § 20002, subd. (a)(1)), and sentenced to probation. Defendant appeals, making two arguments: (1) the conviction is not supported by substantial evidence, specifically, no evidence defendant knew he caused property damage; and (2) a probation condition requiring him to write a letter of apology was improper, as it requires him to incriminate himself in violation of the Fifth Amendment.
We conclude defendant's first argument has merit, and thus reverse the judgment, rendering defendant's second argument moot.
BACKGROUND
The General Setting
December 2, 2017 was the annual Fort Bragg Christmas Lights Parade. Many participants gathered after the festivities, one of whom was Aura Johansen, along with her horse. Shortly before 8:00 p.m. that evening defendant's car hit Johansen and/or her horse. Defendant stopped and got out of his car, and a crowd gathered around him. Defendant said he was going to get his license, but then drove off.
On August 1, 2018, the Mendocino County District Attorney filed an information charging defendant with three counts: (1) felony reckless driving causing specific injuries (Veh. Code, § 23105, subd. (a)); (2) misdemeanor failure to perform duty at the scene of an accident (id., § 20002, subd. (a)(1)); and (3) misdemeanor driving on a suspended or revoked license (id., § 14601.1, subd. (a)).
All undesignated statutory references are to the Vehicle Code.
The prosecutor dismissed count 3, and on May 8, 2019, the case proceeded to a brief—less than three-hour—jury trial. Eight witnesses testified, five for the prosecution, three for defendant, whose testimony revealed the following relevant facts.
The Facts
Shortly before 8:00 p.m. on December 2, 2017, Johansen was unsaddling her horse, preparing to load it into a trailer. She was a member of the Shoreline Riders, and that day had been in the annual Christmas Lights Parade. Other parade participants were still in the vicinity, some gathered in the parking lot at Rossi's store, one witness estimating there were 25 to 30 people there. Five or six horses were also there, along with two trailers.
Johansen's trailer was on Elm Street, near the intersection of Steward, up against the curb, under a streetlight. The horse was next to the trailer, "in the roadway." It was dark, and the weather rainy, but Johansen had parked under a streetlight and left the hazard lights on the trailer flashing. Johansen heard a car coming up the street, "driving pretty fast" as it came around the corner, estimating it to be travelling approximately 35 miles per hour. It was a black Mustang. Johansen realized the car was coming at her, and also that she would not be able to get her horse out of the way, so she tried to get out of the way herself. While the evidence is not consistent, it appears the Mustang first hit the horse and then Johansen. Johansen testified she flipped onto the hood of the Mustang and slid a few feet before falling off the side. The horse did not fall onto the car, but was between it and Johansen.
The Attorney General's brief says, "It is unclear whether the car actually hit Johansen or whether it hit the horse, which caused the horse to connect with Johansen propelling her into the air. [Citations.] It is assumed to be the latter, but the former cannot be conclusively ruled out from the record."
One of the people in the gathered group was Gabe Arreguin, who saw the Mustang hit the horse and Johansen who, he said, "kind of went flying over the hood." The horse "kind of bounced out of the way," but did not fall.
Johansen testified she was injured in the accident, that she had a compressed vertebra, and suffered from lower back pain. She did not report any injury to the investigating officers and after she finished speaking with the officers, put the horse in the trailer and went home. She did not seek treatment for any injuries for four days after the incident. But whatever the facts concerning Johansen's injury, the jury found defendant not guilty on Count 1, so any facts concerning Johansen's injury are not relevant to our opinion.
Melissa Norton, also part of the group, testified she heard a "commotion." She did not "hear any crash or thud or anything like that." Norton heard people saying, "he hit her" and "he hit the f-ing horse." She heard Arreguin say "call the cops," and she did. Norton estimated there were some 10 or so people in the group who were screaming and agitated.
The Mustang stopped "a few feet down the road," and the driver—later identified as defendant—got out. Arreguin, who denied being angry himself, testified he "went over to confront" defendant and stood "face-to-face with him." Defendant tried to explain it was an accident, and that he did not "mean to." But as Arreguin put it, there was "a lot of yelling and screaming," people were angry, and Arreguin estimated that six or seven people moved toward defendant, yelling. Norton's 13-year-old daughter also testified that the group was yelling and screaming in anger.
Defendant told Arreguin he was going to get his wallet and license, went to his car, and drove away, circling around and parking a block or so away. When Arreguin next saw the Mustang, no one was in it.
Fort Bragg Police Sergeant Wes Rafanan and Mendocino County Deputy Sheriff Brandon McGregor arrived at the scene. Rafanan got an address on Pudding Creek Road from the license plate on the Mustang. McGregor found defendant at that location, and Rafanan took Arreguin there where he identified defendant as the driver. Rafanan found no damage to the front or hood of the Mustang.
Defendant presented three brief witnesses: Roxanne Korhummel, Dawn Messex, and Gina del Fiorentino.
Korhummel, who lived nearby, testified that the lighting on Steward Street was poor, that in 2001, she had hit a pedestrian because it was dark and she could not see.
As to the night of the accident, it was dark and rainy, with visibility "slim to none." Korhummel was driving a short distance behind defendant and had to swerve to avoid horses she could not see in the dark. Defendant was not driving fast and had only reached second gear since he last stopped. Korhummel caught up with defendant when he was stopped "sideways in the opposite lane. Korhummel saw a woman standing next to a horse trailer yelling at defendant, who was in his car with his window down. Korhummel heard defendant apologize and ask if the woman was "okay," but the woman, who appeared to be uninjured, just kept yelling. Korhummel slowed down but never stopped, because in her words "it didn't look like a big issue."
Messex was standing in a parking lot across the street from the accident scene when she saw the Mustang driving on Steward. It was not going fast. Messex turned away, and when she turned back saw the car stopped and defendant getting out. She did not hear a crash, but she could hear people—"more than a few people"—yelling, and it sounded like they were pretty angry. She also saw two agitated women approach defendant.
Del Fiorentino was the legal owner of the Mustang. She testified she cracked the windshield of the car two years before the accident, and the car looked the same before and after the accident, with no additional damage.
The Closing Argument and the Verdict
The issue on appeal is whether there was evidence that defendant knew he had caused property damage. In light of this, we quote from the prosecutor's closing argument on Count 2, the relevant count involved, which began with the prosecutor alluding to the jury instruction, after which he turned to the element "defendant knew he had been involved in an accident that caused property damage." Here is the entire argument that followed: "Three, the defendant knew that he had been involved in an accident that caused property damage, well even if you took Ms. Korhummel at any little, tiny bit, why would he stop? Why would he stop unless he knew he had been involved in an accident? Why would he stop and be arguing with Aura, she's trying to untack her horse? Why would he be stopping to argue with Aura unless he knew he had been involved in an accident? Okay. And then he—willfully failed to perform one or more of the following duties, mainly to immediately provide the owner, a person in control of the damaged property, in other words, Aura, who was in control of the horse with his name and current address?
"Now, apparently [he] got out of the car, maybe spent ten minutes or so talking with Gabe or something, nobody rushed him, but then, when he went—Gabe said please go back and get your information, and then when the word of police was said—was heard, he took—he takes off.
"Mr. Gabe Arreguin did nothing wrong here. He did [the] right thing as a citizen and he was not angry. So there was no belligerence of Aura that was causing [defendant] to do what he did. It was simply guilt.
"So there's no evidence in this case that the defendant reported this to Aura. There's no evidence that in this case that the defendant went to the police station and reported it to the police. It's zero. Zip.
"That's the only real issue in this case."
Over the course of his relatively lengthy closing argument, defendant's counsel spent over six pages addressing Count 2.
The prosecutor responded with his closing argument. It was all of 36 lines, summing up with these five lines:
"I ask that you come in with a verdict of guilty on Count 1, and that you find that the special allegation is true, that there was a specified injury as a result. And that you find that the defendant failed to comply with his duty to report the accident."
That was it—absolutely no mention of defendant's knowledge. As the prosecutor might have put it, "Zero. Zip."
The case was in the hands of the jury at 11:53 a.m. on May 9, which deliberated for several hours, in the course of which the jury sent the court three questions, two dealing with Count 2. That afternoon, the jury returned its verdict, finding defendant not guilty of Count 1, felony reckless driving, and guilty of Count 2, failure to perform a duty at the scene of an accident.
Defendant was sentenced to probation, the terms of which included he was to serve a jail term of 90 days and write a letter of apology to the victim. Defendant filed a misdemeanor notice of appeal, which was subsequently transferred to this court.
DISCUSSION
The Applicable Law
Section 20002 reads in pertinent part as follows:
"(a) The driver of any vehicle involved in an accident resulting only in damage to any property, including vehicles, shall immediately stop the vehicle at the nearest location that will not impede traffic or otherwise jeopardize the safety of other motorists. . . . The driver shall also immediately do either of the following:
"(1) Locate and notify the owner or person in charge of that property of the name and address of the driver and owner of the vehicle involved and, upon locating . . . the owner or person in charge of any damaged property, upon being requested, present his or her driver's license, and vehicle registration, to the . . . property owner, or person in charge of that property. [¶] . . . [¶]
"(c) Any person failing to comply with all the requirements of this section is guilty of a misdemeanor . . . ."
A conviction under section 20002, subdivision (a)(1) requires that the prosecution prove beyond a reasonable doubt the following elements: that the defendant (1) knew he had been involved in an accident; (2) knew that damage resulted from the accident; (3) knowingly and willfully left the scene of the accident; and (4) did not give the required information to the property owner. (People v. Carbajal (1995) 10 Cal.4th 1114, 1123, fn. 10, citing People v. Crouch (1980) 108 Cal.App.3d Supp. 14, 21 (Crouch); CALCRIM No. 2150.)
The Attorney General criticizes defendant's briefing with this language: defendant "primarily relies not on cases discussing the misdemeanor section, but on cases discussing felony hit and run set out in . . . section 20001." Doing so, the Attorney General quotes from People v. Holford (1965) 63 Cal.2d 74, 80, footnote 3, where the Supreme Court said, "Neither knowledge of injury nor knowledge of the seriousness of the nature of the accident is required for a conviction under Vehicle Code section 20002, which provides that a driver of a vehicle in an accident resulting in damage to property commits a misdemeanor if he fails to stop and give the required information."
Defendant responds that there is a dearth of cases discussing section 20002, but "this is really beside the point given that our Supreme Court, in 1995, cited Crouch[, supra, 108 Cal.App.3d Supp. 14] for the proposition that knowledge that 'damage resulted from the accident' is a necessary element of section 20002. (People v. Carbajal, supra, 10 Cal.4th at p. 1123; . . . Crouch, supra, 108 Cal.App.3d Supp. at p. 21.) By doing so it rejected the 1965 case cited by [the Attorney General] that held it was not."
The Attorney General asserts that "[a]ctual 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.)" For example, "such knowledge may be imputed to the driver where the fact of damage is visible and obvious (see, e.g., People v. Blankenship (1959) 171 Cal.App.2d 173, 177), or where the seriousness of the collision would lead a reasonable person to assume there must have been resulting damage." (See, e.g., People v. Dallas (1941) 42 Cal.App.2d 596, 600-602; People v. Henry (1937) 23 Cal.App.2d 155, 160.)
Maybe so. But that does not support the conviction here.
The Standard of Review
"In assessing a claim of insufficiency of evidence, the reviewing court's task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.)" (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) "We ' " 'presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' " ' " (People v. Clark (2011) 52 Cal.4th 856, 943, quoting People v. Davis (1995) 10 Cal.4th 463, 509.) And the question for a reviewing court is " ' "whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged." ' " (People v. Polk (2019) 36 Cal.App.5th 340, 348.)
As to inferences, they must not only be reasonable, they must be based on the evidence and not " ' " 'on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work.' " ' " (People v. Polk, supra, 36 Cal.App.5th at pp. 348-349; People v. Hughes (2002) 27 Cal.4th 287, 365 [inference is not reasonable if based only on speculation].) "[E]vidence which merely raises a strong suspicion of the defendant's guilt is not sufficient to support conviction. Suspicion is not evidence; it merely raises a possibility, and this is not a sufficient basis for an inference of fact." (People v. Redmond (1969) 71 Cal.2d 745, 755.)
Defendant's opening brief argues for several pages there is no substantial evidence that he knew he had caused property damage—indeed, that there even was property damage. Doing so, defendant's brief cites to the prosecution's closing argument, quoted above, and then goes on to address the evidence that was before the jury, essentially witness by witness.
The Attorney General's response is some six-pages, in an argument entitled "Sufficient Evidence Supported [Defendant's] Conviction For Leaving The Scene Of An Accident Without Providing Identifying Information." The argument includes two sub-arguments, the second of which is that defendant's "flight from the scene . . . after initially stopping supports the implied finding that [defendant] knew he had been in a collision causing property damage." We disagree.
It is probably enough to note that, like the prosecutor's arguments below, neither the Attorney General's argument nor sub-argument mentions defendant's knowledge. But beyond that, the Attorney General's response is inadequate.
The Attorney General's argument begins with the assertion that: "[T]he evidence in this case more than adequately showed that [defendant] knew he had been in an automobile accident and that the circumstances of that accident provided sufficient constructive knowledge that there was either injury or property damage involved." It then says, "As [defendant] acknowledges, '[a]ctual knowledge of property damage is not required; constructive knowledge may be imputed to the defendant based on the surrounding circumstances.' [Citation, citing People v. Carter (1966) 243 Cal.App.2d 239, 241-242" From there the Attorney General's brief goes on to assert that "the circumstances of the accident alone can provide sufficient proof of the defendant's scienter," going on to cite three cases: People v. Dallas, supra, 42 Cal.App.2d 596, People v. Blankenship, supra, 171 Cal.App.2d 173, and People v. Harbert (2009) 170 Cal.App.4th 42.
And following that, the Attorney General sums up in these three paragraphs:
"Here, there is no dispute that [defendant] was involved in an automobile collision. [Citation.] Nor is there any dispute that [defendant] initially stopped his Mustang following the collision. [Citation.] He may even have briefly apologized. [Citation.] But he fled the scene as soon as he heard someone yelling to call the police. He lied to officers afterward, claiming that his car had broken down the previous day. [Citation.] His counsel below asserted a defense of necessity, claiming that [defendant] stopped as required but then left the scene after fearing for his safety. [Citation.] But the jury, by its verdict, showed it did not believe [defendant's] defense. [Citation.] Regardless of [defendant's] imagined reason for leaving the scene, his failure to provide the requisite information without legitimate justification for doing so, especially combined with his lies to police, indicating consciousness of guilt, sufficiently supported the conviction. (See People v. Carrillo (1995) 37 Cal.App.4th 1662, 1669-1670 [false exculpatory statements to ward off suspicion imply consciousness of guilt].)
"[Defendant's] reliance on People v. Carter, supra, 243 Cal.App.2d 239, is misplaced. In that case, the court reversed a conviction for felony hit and run where the driver was involved in a minor collision with another car. The defendant briefly stopped and spoke with the other driver who told him that he did not think [he] was injured. (Id. at pp. 241-242.) Here, however, [defendant] was involved in a collision with a pedestrian who was flipped onto the hood of the car by the collision. Furthermore, while [defendant] briefly stopped, he never inquired, nor was assured, that there were no injuries. Finally, as the court held in Carter, there was sufficient injury to show misdemeanor driving involving damage to property, even though the accident was minor and merely caused damage to the victim's fender. (Ibid.)
"The fact that Johansen's horse did not fall on [defendant's] Mustang is irrelevant. He hit something—whether it was the horse or Johansen herself—with sufficient force that it propelled a pedestrian (Johansen) off the ground and onto the hood of his Mustang. That alone was sufficient evidence from which a jury could have found that he had a legal obligation to stop and to provide identifying information. Although [defendant] briefly stopped, he fled soon after without providing any information. Counsel suggested [defendant] fled fearing for his safety, but this reasoning was rejected by the jury. Instead the jury's verdict suggests it found [defendant] fled the scene upon learning the police would be called, and that [defendant] had lied to the police while his tires were still warm, both of which show consciousness of guilt. Sufficient evidence supported the conviction."
Despite all that verbiage, what is apparent is that at no place does the Attorney General point to any evidence that defendant knew he had caused property damage. Indeed, the Attorney General's entire position seems to be that defendant was in an accident and, after stopping briefly, fled the scene.
But it is undisputed that defendant had been in an accident. What is disputed was that he knew he had caused any property damage.
The Attorney General asserts that the jury rejected eyewitness testimony that defendant drove away because he was scared. The Attorney General also asserts that defendant knew he "hit something—whether it was the horse or Johansen herself—with sufficient force that it propelled [Johansen] off the ground and onto the hood of his [car]."
As much as the Attorney General makes of the jury rejecting testimony that defendant was scared, and thus rejected the argument that defendant left of necessity, that does not speak to whether defendant's leaving the scene was substantial evidence he knew he had caused any damage. The jury could have found that being surrounded by an angry group is not sufficient reason to fear for safety to the extent that a driver does not need to comply with the law. At the same time, his fleeing is not evidence that he knew anything more than that he was surrounded by angry people and wanted to leave—as even the prosecution eyewitness admitted.
While it is true that Johansen testified her horse was injured no other evidence supported that. Rather, multiple witnesses testified that they heard no sound, that the horse did not fall, and/or that they saw nothing wrong with the horse after the accident. Johansen herself testified that the horse did not fall on the hood of the car—or for that matter anywhere.
But even if there was such evidence, there was no evidence that defendant knew of the injury. No injury was visible. The horse did not fall. There was no evidence it was limping or outwardly displaying injury or distress. No one told defendant the horse had been hurt. And the Mustang sustained no damage to put defendant on notice that he may have damaged any property. In sum and in short, there is no substantial evidence to support a requisite element of the crime, that defendant knew he caused damage to property.
The three cases the Attorney General cites are not to the contrary.
People v. Dallas, supra, 42 Cal.App.2d 596 involved the crime of not stopping at the scene of an accident involving injury or death. The Court of Appeal affirmed the conviction, finding sufficient evidence of defendant's knowledge due to the "sickening thud" when he struck something, and from "the sound of contact with the body, the crashing of the [head]lamp and the sight of the form as it was thrown over the hood of the machine to the left side of the highway." (Id. at pp. 601-602.) There is no such evidence here.
People v. Blankenship, supra, 171 Cal.App.2d 173, a "hit and run" case, found sufficient evidence that defendant (and his wife) knew of the accident, rejecting the denials from them that defendant was driving. The court held the jury could reasonably find that defendant and his wife were lying when they testified they had not been in an accident because they were lying about driving that day and because the accident was audible 150 feet away. (Id. at p. 177.) Here, the accident was not audible, and defendant never denied being in an accident for the jury to disbelieve him.
People v. Harbert, supra, 170 Cal.App.4th 42, a decision by this court, involved a deceased victim, where we held that defendant was "properly convicted on the basis of constructive knowledge that he had been in an accident." (Id. at p. 52.) Doing so, we distilled the applicable law as follows:
"A pedestrian struck with sufficient force that he or she reaches the hood or windshield is treated as virtually unignorable. (E.g., People v. Kuhn, supra, 139 Cal.App.2d 109, 112 ['the path of the injured man's body . . . renders it unlikely that the defendant was ignorant of the object which he hit']; People v. Dallas, supra, 42 Cal.App.2d at p. 601.) The extent of damage to the defendant's vehicle is routinely treated as particularly probative. (E.g., People v. Wolf [(1978)] 78 Cal.App.3d 735, 738 [dented hood and cracked windshield]; People v. Forthun (1940) 40 Cal.App.2d 656, 659 [smashed fender and dented hood]; People v. Henry, supra, 23 Cal.App.2d 155, 158 [headlight, license plate, hood, fender, and sides of car dented]; People v. Rallo (1931) 119 Cal.App. 393, 399 [broken bumper and damaged headlight]; People v. Fodera [(1917)] 33 Cal.App. 8, 10 [fenders and tool box 'bent and indented'].) A collision with the speed and force to cause death invariably draws comment. (E.g., People v. McKee [(1926)] 80 Cal.App. 200, 206 ['It is inconceivable that the jury could have believed that defendant struck the deceased with such force as to instantly kill her and not have known that he had struck something . . . .']; cf. People v. Libhart [(1926)] 79 Cal.App. 291, 293 ['The man who was struck was thrown with such force as to seriously injure and render him unconscious, and it is highly improbable that the defendant did not know that he had struck the man']; People v. Dallas, supra, at p. 601.)" (People v. Harbert, supra, 170 Cal.App.4th at p. 56.)
The evidence—more accurately, lack of evidence—here is a far cry. The conviction cannot stand.
In light of the conclusion we reach, the probation condition becomes moot.
DISPOSITION
The judgment is reversed.
/s/_________
Richman, J. We concur: /s/_________
Kline, P.J. /s/_________
Miller, J.