Opinion
A149580
06-15-2017
THE PEOPLE, Plaintiff and Respondent, v. DYLAN KOSKI COLLINS, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Humboldt County Super. Ct. No. CR1602568)
INTRODUCTION
Defendant Dylan Koski Collins challenges his conviction for leaving the scene of an accident. He argues the evidence is insufficient to support the jury's finding that he violated a statutory duty; the court misinstructed on the statutory duties under the statute; and the court erroneously allowed the prosecutor to introduce evidence of a prior misdemeanor hit-and-run offense. Defendant also contends the record does not support consecutive sentences for a separate misdemeanor case. We affirm.
STATEMENT OF THE CASE
A first amended information filed in Humboldt County charged defendant Collins with driving under the influence of alcohol (DUI), causing injury, on May 28, 2016, with a prior DUI conviction; leaving the scene of an accident; and driving on a suspended license, a misdemeanor. (Veh. Code, §§ 23153, subd. (a), 20001, subd. (a), 14601.5, subd. (a).) The information also alleged that defendant refused to submit to a chemical test and had a prior strike conviction. (§§ 23538, subd. (b)(2), 23577, 23578; Pen. Code, § 667, subd. (b)-(i).) A jury found defendant guilty as charged. Defendant admitted the prior DUI conviction and the court dismissed the strike allegation. The trial court sentenced defendant to three years eight months in state prison. Defendant timely appeals.
Unless otherwise indicated, all statutory references are to the Vehicle Code.
STATEMENT OF FACTS
On May 28, 2016, at approximately 7:00 p.m., California Highway Patrol (CHP) Officer Benjamin Draper was driving northbound Highway 101 between Trinidad and Orick in Humboldt County. This stretch of the road is one lane in each direction, with the northbound lane separated from the southbound lane by a painted double yellow line. Officer Draper was going around a bend when he encountered a cloud of dust and debris in the roadway, indicating a collision had just occurred. A blue/gray BMW was stopped under 100 feet ahead of him; the passenger side of the BMW was "decimated." "[T]he whole side of it was almost gone." The BMW was facing northwest. The driver's side of the BMW was closest to the road. A big rig was resting on its right side on the right shoulder blocking both lanes of traffic. Draper saw a dog and a person (identified as defendant) exit the BMW through the driver's side door. No other person was around or near the vehicle as defendant opened the car door. Defendant walked across the roadway to the southbound lane's right shoulder and began to climb the embankment, following the dog. At that point, Officer Draper notified his partner, who had been following Draper in his own car, to hold traffic; then he went to talk to defendant. Draper asked defendant if he was okay; defendant said he was. Draper instructed defendant to sit on the embankment for a minute while he went to assist the driver of the big rig. Defendant sat down.
The driver of the big rig, Danny Gregory, was hanging by the seat belt and could not get himself out of the truck, which was leaking quite a bit of diesel fuel. Draper crawled onto the hood of the truck and started ripping the windshield off to free Gregory. Once Gregory was freed from the truck, Draper took Gregory to the same grassy embankment where he had asked defendant to sit. Defendant was no longer there. Officer Draper assumed defendant had gone after the dog, which had run northbound on the road. He could see the dog running around at the top of the hill, about a quarter- to a half-mile away. He started driving in that direction to get the dog, anticipating he would meet up with defendant, but he never did. The dog was "really obedient" and jumped into the patrol car. After collecting the dog, Draper went in search of defendant. The collision occurred in a heavily forested area, about 20 minutes from the nearest town in either direction. Draper drove up and down 101 about two miles, drove up and down Kane Road, and enlisted the help of two forestry officers he chanced to meet on the road. Altogether, they searched the area for defendant for about 20 to 30 minutes.
When he could not locate defendant, Officer Draper turned to other aspects of his investigation. Officer Draper determined the collision occurred in the northbound lane. The big rig was traveling in the northbound lane. The BMW was traveling in the southbound lane, but at the point of impact was partially on the east shoulder of the northbound lane. In order to do that, the BMW had to cross over the double yellow lines. The collision was "nearly head-on with the big rig. And the driver inputted some steering movement to the left to avoid a direct head-on collision, essentially saving his life—and caus[ing] the impact to go just on the left side of the BMW and the . . . passenger side of the big rig as well."
About two hours later, at 9:00 p.m., defendant reappeared. Draper was talking to fire personnel when he noticed defendant standing across from the big rig, looking at it. Draper told defendant they needed to talk about the crash and had him stand next to the patrol car. When Draper brought up their previous conversation about having him stay, defendant denied they ever talked. Defendant appeared sluggish and confused, either swayed as he stood or leaned on the car, smelled of alcohol, had red, watery eyes, made contradictory statements, and slurred his words. He had scratches from brush on his legs and a rash or abrasion on his neck. Defendant refused to perform field sobriety tests. The officers found an empty open bottle of beer in a 12-pack case in the passenger compartment behind the driver's seat and more empty beer bottles in the trunk. Based on all the evidence he had seen, Officer Draper placed defendant under arrest. Defendant did not have a driver's license in his possession. Officer Draper subsequently learned that defendant's license had been suspended on August 30, 2015, for refusal to take a chemical test.
Mr. Gregory was driving a semi full of groceries from Tracy to Crescent City for Safeway Stores when the collision occurred. As he came out of a curvy part of the road onto a straighter stretch, he saw a car come across the lane directly at him. When the car hit his truck, it knocked the front axle underneath the cab and took out the steering, sending him straight into the side of the mountain. He was hanging by the seat belt, and the highway patrol had to remove the windshield to get him out of the cab. He suffered scrapes to his face and lower back pain that persisted for about a month. About a week after the collision he started to have constant pain in his right arm and shoulder, which persisted to the time of trial. He did not have this pain before the collision.
Defendant testified against his attorney's advice. On May 28, 2016, at 4:00 p.m., he had one 12-ounce can of beer where he was camping, at Clam Beach. At 5:00 p.m. Josh Portel, the BMW's owner, picked defendant up at Clam Beach and they went for a ride to Orick. They were on their way back to Clam Beach at 7:00 p.m. when the collision occurred. Portel was driving, defendant was in the passenger seat, and his dog Charlie was in the back seat. The BMW was "clipped" by the semi. He "felt the panel of the driver's door—passenger side cave in and touch" him. Then the car spun out and ended up by the side of the road. The semi was in the northbound lane and the BMW was in the southbound lane. The collision occurred in the northbound lane.
Defendant was not wearing a seat belt. The impact threw him over the console area into Portel's lap. Both air bags deployed, hitting him so hard he believed he had a concussion in his brain. Defendant climbed over Portel and exited through the driver's side door, followed by his dog. The driver's side door was facing the bushes. Pictures of the BMW with the driver's side door facing the road showed the car after it "was drug out of the bushes." He saw the officer, then his dog ran off. Defendant told the officer, "I have to get my dog. I have to go get my dog. My friend is in the car." The officer wrote that down in his original report. He did not know where Portel went.
There were two officers, and no one told him to sit on the side of the road. He chased his dog. "Cars were coming. I made it up the road a little bit and collapsed in the bushes" 25 feet from the roadway. "I wasn't eluding the police or anything like that. I was running to get my dog. I didn't reach my dog. Everything went black. I woke up two hours five minutes later across from the crash scene."
When he came to, he climbed up the embankment, saw the emergency lights, and walked towards the scene. The officer kept asking him why he came back. Defendant asked the officer how his friend was, and if anyone had seen his dog. Defendant denied that Officer Draper asked him to submit to a chemical test or perform field sobriety tests. Defendant admitted he suffered a conviction for battery on a custodial officer out of Del Norte County on January 25, 2007.
Defendant was questioned about his involvement in another DUI investigation on July 31, 2015, which, he admitted, had led to his guilty plea in that case. Defendant agreed an officer investigated how the car ended up off the highway, and that he was asked to perform field sobriety tests and started going through them. He denied he took off running from the officer in the middle of the tests, but instead "slipped and fell." Defendant agreed he was arrested in the July 2015 investigation and then refused to submit to a chemical test, but he maintained he never ran from the officer conducting that investigation.
In rebuttal, Officer Draper was recalled. When he arrived at the scene, the BMW was facing in a northwesterly direction, with its driver's side closest to the highway. He watched as defendant got out of the car on the driver's side; he did not climb over anyone and no one else was in the driver's seat.
A 20-minute conversation between defendant and Draper after defendant's reappearance was video-recorded and played for the jury. In it, defendant told Officer Draper he was wearing his seat belt in the passenger seat, and had not been driving the BMW. He repeatedly claimed the driver, Josh, "is right over there." Defendant claimed he did not remember being told to sit down. He said he drank three beers after the crash. He then said he did not drink after the crash. He said Josh picked him up at the Bear River Casino. Officer Draper testified that Josh Portel was never located at the scene at any time during the investigation of the crash. Draper and others searched both sides of the road "high and low" for defendant and never found him. He opined that defendant's lack of injuries was not in the slightest "consistent with [him] being seated in the passenger side" of the BMW "because he was still alive."
CHP Officer Aaron McLain investigated a traffic collision on July 31, 2015, on Highway 299, east of Willow Creek. An empty white Nissan Maxima was parked haphazardly on the shoulder of the road next to an embankment. A large duffle bag containing clothing covered the entire front passenger seat. He found defendant sound asleep 10 feet from the car down the embankment. Officer McLain awakened defendant, who smelled strongly of alcohol and was unsteady on his feet. Defendant denied consuming alcohol or driving the car; he said he had been seated in the front passenger seat. McLain attempted to administer field sobriety tests, but defendant was uncooperative and verbally refused to do them. When McLain turned his back on defendant to get a handheld breath machine from his car, defendant took off running. Defendant slid on his behind down the steep embankment where he had been sleeping and continued running north. Officer McLain and his partner apprehended defendant on the road at the bottom of the embankment.
In surrebuttal, defendant testified he was 44 years old and had made some poor choices in his life, but driving the car on May 28 was not one of them. If he told Officer McLain he was not the driver of the car on July 31, 2015, or did not drink alcohol that day, those statements were not true, and he pleaded guilty to that charge.
DISCUSSION
Substantial Evidence of Noncompliance with Statutory Duty
Defendant contends the evidence is insufficient to sustain his conviction for violating section 20001, subdivision (a), failing to perform a legal duty following an injury-causing vehicular accident. In reviewing a claim of insufficiency of the evidence on appeal, " 'the relevant question is 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.' " (People v. Johnson (1980) 26 Cal.3d 557, 576, quoting Jackson v. Virginia (1979) 443 U.S. 307, 318-319.) We must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (People v. Johnson, at p. 576.) Evidence is substantial if it " ' "reasonably inspires confidence" ' " (People v. Marshall (1977) 15 Cal.4th 1, 34) and is "credible, and of solid value" (id. at p. 31). This standard of review applies with equal force to cases primarily supported by circumstantial evidence. As an appellate court, we "must accept logical inferences that the [trier of fact] might have drawn from the circumstantial evidence." (People v. Maury (2003) 30 Cal.4th 342, 396.)
As relevant here, section 20001 provides in relevant part: "(a) The driver of a vehicle involved in an accident resulting in injury to a person, other than himself or herself, or in the death of a person shall immediately stop the vehicle at the scene of the accident and shall fulfill the requirements of Sections 20003 and 20004."
Section 20003 provides: "(a) The driver of any vehicle involved in an accident resulting in injury to or death of any person shall also give his or her name, current residence address, the names and current residence addresses of any occupant of the driver's vehicle injured in the accident, the registration number of the vehicle he or she is driving, and the name and current residence address of the owner to the person struck or the driver or occupants of any vehicle collided with, and shall give the information to any traffic or police officer at the scene of the accident. The driver also shall render to any person injured in the accident reasonable assistance, including transporting, or making arrangements for transporting, any injured person to a physician, surgeon, or hospital for medical or surgical treatment if it is apparent that treatment is necessary or if that transportation is requested by any injured person. [¶] (b) Any driver or injured occupant of a driver's vehicle subject to the provisions of subdivision (a) shall also, upon being requested, exhibit his or her driver's license, if available, or, in the case of an injured occupant, any other available identification, to the person struck or to the driver or occupants of any vehicle collided with, and to any traffic or police officer at the scene of the accident." Section 20004 applies only to accidents resulting in death.
Defendant's specific claim is that no reasonable jury could have concluded he willfully failed to perform any of his statutory duties. The driver of a car involved in an injury-causing accident is required to: (1) "immediately stop the vehicle at the scene of the accident"; (2) "give his or her name, current residence address, the names and current residence addresses of any occupant of the driver's vehicle injured in the accident, the registration number of the vehicle he or she is driving, and the name and current residence address of the owner to the person struck or the driver or occupants of any vehicle collided with"; (3) provide that information to "any traffic or police officer at the scene of the accident"; (4) "render to any person injured in the accident reasonable assistance, including transporting, or making arrangements for transporting, any injured person to a physician, surgeon, or hospital for medical or surgical treatment if it is apparent that treatment is necessary or if that transportation is requested by any injured person"; and (4) "upon being requested, exhibit his or her driver's license, if available." (§§ 20001, subd. (a), 20003, subds. (a) & (b).) Section 20001 "is designed to prevent the driver of a car involved in an accident from leaving the scene without furnishing information as to his identity. . . . [T]he driver of a vehicle involved in an accident can furnish such identification only by identifying himself as the driver of the vehicle involved in the accident." (People v. Monismith (1969) 1 Cal.App.3d 762, 766; accord, People v. Kroncke (1999) 70 Cal.App.4th 1535, 1545.)
The court instructed the jury on each of these duties using CALCRIM No. 2140. That instruction also informed the jury it could not return a guilty verdict unless it unanimously agreed that defendant failed to perform at least one of the required duties. Neither side requested a special verdict obligating the jury to identify any particular duty defendant failed to perform to support a violation of section 20001. The instruction also informed the jury of the following: (1) "To provide reasonable assistance means the driver must determine what assistance, if any, the injured person needs and make a reasonable effort to see that such assistance is provided either by the driver or someone else"; (2) "When providing his or her name and address, the driver is required to identify himself or herself as the driver of the vehicle involved in the accident"; and (3) "If the accident caused the defendant to be unconscious or disabled so that he is not able to perform the duties required by law, then he does not have to perform those duties at that time. However, he was required to do so as soon as reasonably possible."
Defendant argues he immediately stopped at the scene, and could not show his driver's license because it was unavailable. CALCRIM No. 2140 instructs the jury that an accused acts "willfully when he . . . does [something] willingly or on purpose. It is not required that he . . . intend to break the law, hurt someone else, or gain any advantage." Since defendant's driver's license had been suspended and taken from him by the State before this incident, he was unable to possess the license for identification purposes at the time of the accident. He could not willfully violate this element of the criminal hit-and-run statute. However, even if we determine the jury could not have rested its guilty verdict on the failure to perform those two duties, that still leaves the duty to identify himself to the other injured driver, to identify himself to the police, and to render aid.
Defendant argues his "statutory duty to render aid became moot upon the prompt arrival of police and paramedics." We disagree. The evidence adduced at trial shows defendant disappeared before paramedics arrived. In fact, the evidence shows he disappeared shortly after, if not immediately after, Officer Draper went to see what he could do to assist the driver who was trapped in the truck suspended by his seat belt. A reasonable jury could have inferred from this scenario that defendant willfully left the scene before fulfilling his duty to determine what assistance was needed and to see that such assistance was being rendered by other persons.
Moreover, there was no evidence defendant complied with his duties to identify himself to the other driver or the police. He argues he was not asked for his identification by Officer Draper when he "sat down as directed." However, unlike the duty to produce a driver's license upon request, the duty to identify oneself is self-executing. He also argues his compliance was excused because he was unconscious for two hours and five minutes. However, whether defendant was unconscious was a factual question for the jury to decide, and the jury evidently decided it did not believe defendant. "[I]t is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends." (People v. Huston (1943) 21 Cal.2d 690, 693, overruled on other grounds in People v. Burton (1961) 55 Cal.2d 328, 352.) In any event, even after defendant's two-hour-and-five-minute disappearance, the evidence shows he failed to properly identify himself as the driver or owner of the car. In our view, ample evidence supports defendant's conviction for failing to perform a legal duty following a vehicular accident that caused injury to another person.
Asserted Instructional Error
On appeal, defendant argues the trial court had a sua sponte duty to instruct the jury he was not required to provide unnecessary assistance, as when paramedics have responded within moments of the accident. However, at trial, defendant did not request a bracketed portion of CALCRIM No. 2140, which would have informed the jury: "The driver is not required to provide assistance that is unnecessary or that is already being provided by someone else. However, the requirement that the driver provide assistance is not excused merely because bystanders are on the scene or could provide assistance." (CALCRIM No. 2140)
According to the Bench Note to CALCRIM No. 2140, "[f]ailure to render reasonable assistance to an injured person constitutes a violation of the statute." (Bench Note to CALCRIM No. 2140 (Spring 2017 ed.) p. 172; People v. Limon (1967) 252 Cal.App.2d 575, 578.) "In this connection it must be noted that the statute requires that necessary assistance be rendered." (People v. Scofield (1928) 203 Cal. 703, 708, italics in original.) In People v. Scofield, the court held that where other people were caring for the injured person, the defendant's "assistance was not necessary." (Id. at p. 709, italics in original.) An instruction limited to the statutory language on rendering assistance "is inappropriate where such assistance by the driver is unnecessary, as in the case where paramedics have responded within moments following the accident." (People v. Scheer (1998) 68 Cal.App.4th 1009, 1027.) However, "the driver's duty to render necessary assistance under Vehicle Code section 20003, at a minimum, requires that the driver first ascertain what assistance, if any, the injured person needs, and then the driver must make a reasonable effort to see that such assistance is provided, whether through himself or third parties." (People v. Scheer, at p. 1028.) The presence of bystanders who offer assistance is not alone sufficient to relieve the defendant of the duty to render aid. (Ibid.) " '[T]he "reasonable assistance" referred to in the statute might be the summoning of aid,' rather than the direct provision of first aid by the defendant. (People v. Limon[, at p.] 578.)" (Bench Note to CALCRIM No. 2140, supra, Related Issues, Reasonable Assistance, p. 174.) The Bench Note advises the trial court to give the bracketed portion quoted above "if there is an issue over whether the assistance by the defendant to the injured person was necessary in light of aid provided by others." (Id., Instructional Duty, at p.172.) The Bench Note does not describe this advice as a sua sponte duty to instruct.
" '[T]he court is required to instruct sua sponte only on general principles which are necessary for the jury's understanding of the case. It need not instruct on specific points or special theories which might be applicable to a particular case, absent a request for such an instruction.' [Citations.] Alternatively expressed, '[i]f an instruction relates "particular facts to the elements of the offense charged," it is a pinpoint instruction and the court does not have a sua sponte duty to instruct.' " (People v. Garvin (2003) 110 Cal.App.4th 484, 488-489.) In our view, the ancillary principle that the defendant need not render aid if paramedics arrive on the scene within moments of an accident is not the proper subject of sua sponte instruction. Rather, it is a defense theory that may or may not arise out of a specific factual scenario and, as such, must be requested. It was not requested here, although it could have been. Counsel did request another bracketed instruction relating to an unconscious driver, and defense counsel's comments on another point made during the colloquy on instructions demonstrate he was familiar with People v. Scheer, supra, 68 Cal.App.4th 1009, the case which referenced the early-arriving paramedic hypothetical. (Id. at p. 1027.) In any event, even if defense counsel had requested in the trial court the instruction he proffers on appeal, the court would have been correct to refuse it, because the factual predicate for it was missing and the instruction is incomplete: so far as this record shows, the paramedics did not arrive on scene before defendant disappeared, and the presence of bystanders who offer assistance is not alone sufficient to relieve the defendant of the duty to render aid. No instructional error appears.
Defendant also argues the trial court had a sua sponte duty to properly instruct the jury that the driver "upon being requested, exhibit his or her driver's license, if available." (§ 20003, subd. (b); italics added.) CALCRIM No. 2140, on which the trial court's instructions were patterned, does not include this bit of statutory language. The Bench Note offers no explanation for this omission. Here, defendant did not request clarification of the instruction. Nevertheless, the point was argued by both sides in summation. The prosecutor argued defendant failed to "show his driver's license or any other identification to the driver of the vehicle collided or any officer at the scene, he didn't do that. . . . [¶] . . . [W]e know why he didn't have a driver's license, because . . . his driver's license had been suspended or revoked." (Italics added.) Defense counsel countered: "I would argue, ladies and gentlemen, that when Mr. Collins reappeared two hours later, . . . he did provide all information that was requested of him. . . . He did not have a driver's license. He can't be forced to produce something he doesn't have. But he did give all the other information that he had."
The trial court instructed the jury: "To prove that the defendant is guilty of [§ 20001], the People must prove that: . . . the defendant willfully failed to perform one or more of the following duties; . . . d) when requested to show his driver's license to the driver or occupants of any vehicle collided with or any peace officer at the scene of the accident."
Given this defense, it is puzzling that defense counsel did not ask for clarification of the instruction. Nevertheless, the omitted language is part of the statutory definition of the offense. In our view, that fact takes the phrase "if available" outside the realm of requested instructions on specific points or special theories which might be applicable to a particular case, and places it squarely within the realm of an element of the offense or, more specifically, "an aspect of an element" (People v. Cummings (1993) 4 Cal.4th 1233, 1315, overruled on another point in People v. Merritt (2017) 2 Cal.5th 819, 831), on which the court has a sua sponte duty to instruct (People v. Mil (2012) 53 Cal.4th 400, 409).
One of the essential elements of a violation of section 20001 is the willful failure to perform at least one of the duties enumerated in section 20003. One of those is the duty to (a) exhibit one's driver's license, (b) upon request, (c) if available. Presumably, a driver would not violate this duty willfully if he or she were never asked for his or her license. Likewise, we think, the driver would not violate this duty willfully if his or her license were unavailable. The Attorney General argues that defendant's claim his license was "unavailable" for exhibition because it was suspended "hardly constitutes a lawful excuse for failing to perform his duties." While this may be so, the Attorney General offers no citation for the proposition that to qualify as unavailable, the excuse must be lawful. Section 20003 on its face does not require a lawful excuse. Nor was the jury here instructed there must be a lawful reason defendant's license was unavailable. For the same reason, we must reject the Attorney General's suggestion that section 20006 applies here. That statute provides: "If the driver does not have his driver's license in his possession, he shall exhibit other valid evidences of identification to the occupants of a vehicle with which he collided." Defendant's jury was not instructed on the alternative duty imposed by section 20006. Under the circumstances, we find the trial court committed "constitutional error" (People v. Merritt, supra, 2 Cal.5th at p. 824) in failing to include the statutory phrase "if available" in its instruction on the duty to exhibit one's driver's license, and we urge the crafters of CALCRIM No. 2140 to include the phrase in its pattern instruction on section 20001.
The failure to instruct on an aspect of an element of the offense is subject to harmless error review under Chapman v. California (1967) 386 U.S. 18. (People v. Merritt, supra, 2 Cal.5th at pp. 825-831.) The main thrust of defendant's testimony was that he was not the driver. His second line of defense was that he did not flee; he was chasing after his dog when he "just collapsed." When he "came to," he climbed the embankment and proceeded to walk towards the emergency lights. His third line of defense was to contradict Officer Draper's testimony. He was never asked by Draper to sit down and did not do so; Draper never asked him to submit to a chemical test, or perform field sobriety tests. He just took defendant to the hospital and arrested him there. Defendant's testimony did not touch on any of the statutory duties of a driver at the scene of an accident. The implication from the sum total of his testimony was that he was never asked to perform, and did not perform, any of those statutory duties, including being asked for or exhibiting his driver's license. In effect, defendant's own version of events failed to establish that he performed any of the statutory duties imposed by section 20003. " 'One situation in which instructional error removing an element of the crime from the jury's consideration has been deemed harmless is where the defendant concedes or admits that element.' " (People v. Merritt, at p. 831, quoting People v. Flood (1998) 18 Cal.4th 470, 504.) On the other hand, the evidence presented by the prosecution here affirmatively established that defendant did not perform any of the statutory duties enumerated in CALCRIM No. 2140, other than stopping his car. Under these circumstances, we can confidently conclude that the trial court's failure to instruct that a driver need only exhibit his driver's license "if available" was harmless beyond a reasonable doubt. (People v. Merritt, at p. 831, citing Neder v. United States (1999) 527 U.S. 1, 18.)
Invalid Theories
We also reject defendant's argument that "the absence of a special verdict leaves doubt as to whether the jury convicted [defendant] of felony hit-and-run based on a legally improper theory." None of the statutory duties listed in CALCRIM No. 2140 were prosecuted on the basis of an invalid legal theory, save possibly the theory that failing to exhibit one's driver's license upon request is not excused by having a suspended license. However, as we note above, it is clear beyond a reasonable doubt that the availability or lack of availability of the license was unimportant to the verdict in light of defendant's testimony implying he was never asked for it, and overwhelming evidence that he failed to perform any statutory duty after stopping of necessity at the scene.
Impeachment with Misdemeanor Conduct
Defendant next argues the trial court erroneously allowed him to be improperly impeached over his counsel's objection with inadmissible other crimes evidence. The argument is not well-taken. After weighing the probative value of the evidence against the possible prejudice and consumption of time pursuant to Evidence Code section 352, the trial court denied the prosecutor's motion to admit evidence of defendant's 2015 misdemeanor DUI in his case-in-chief, but indicated that since driving under the influence was an offense involving moral turpitude, if defendant decided to testify, the prosecutor could impeach him with the circumstances of the 2015 offense. The evidence was not admitted as "other crimes" evidence pursuant to Evidence Code section 1101, subdivision (a).
Defendant did testify and, after an extremely narrow direct examination, was asked on cross-examination, "did you not run away from the scene that day?" The question drew no objection and in any event was proper. Defendant answered: "I wasn't eluding the police or anything like that." In a follow-up question, the prosecutor asked: "If there was an investigation going on into a collision that you were involved in potentially— [¶] —you would not leave the scene of an incident prior to speaking with police?" Defendant replied: "I would not leave the scene." No objection was interposed to the content of that line of questioning. After a few more questions, the prosecutor asked defendant about his involvement in a DUI investigation on July 31, 2015. Defendant denied running from the police officer. The questions take up less than two transcript pages. On rebuttal, Officer McLain testified to the circumstances of the encounter, impeaching defendant's version of events. His testimony takes up 15 pages.
Defense counsel objected to and moved to strike defendant's testimony that he suffered a concussion from being hit by an air bag. The objection was overruled. He also objected, "Argumentative. That's not a question," to the prosecutor's statement to defendant, "You would [run] because, you've actually done that before." That objection was sustained.
We review the trial court's rulings on the admissibility of evidence for an abuse of discretion. (People v. Clark (2011) 52 Cal.4th 856, 931-932.) Evidence of past misconduct involving moral turpitude may be used to impeach the credibility of a witness, including a criminal defendant who testifies at trial. Admissible impeachment evidence includes conduct underlying a misdemeanor conviction. (People v. Wheeler (1992) 4 Cal.4th 284, 295 (Wheeler).) Wheeler held the conviction itself is inadmissible hearsay. (Wheeler, at p. 297.) The Legislature later enacted Evidence Code section 452.5, which provides that certified court records are admissible to prove the fact of conviction and the commission of the underlying offense. (People v. Duran (2002) 97 Cal.App.4th 1448, 1460-1461.)
Evidence Code section 780 states that "the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including but not limited to any of the following: [¶] . . . [¶] (e) His character for honesty or veracity or their opposites[;] [¶] . . . [¶] (h) A statement made by him that is inconsistent with any part of his testimony at the hearing[;] [¶] (i) The existence or nonexistence of any fact testified to by him[;] [¶] . . . [¶] (k) His admission of untruthfulness."
If the conduct underlying misdemeanor convictions "has some logical bearing upon the veracity of a witness in a criminal proceeding," that conduct is relevant to credibility. (Wheeler, supra, 4 Cal.4th at p. 295.) Misdemeanor misconduct is relevant to credibility when it involves moral turpitude, i.e., it "suggest[s] a willingness to lie." (Ibid.) "Past criminal conduct involving moral turpitude that has some logical bearing on the veracity of a witness in a criminal proceeding is admissible to impeach, subject to the court's discretion under Evidence Code section 352." (People v. Harris (2005) 37 Cal.4th 310, 337.)
Misdemeanor DUI is not a crime involving moral turpitude. (People v. Forster (1994) 29 Cal.App.4th 1746, 1757-1758.) Defendant argues that "[l]ying is not a crime of moral turpitude." Generally, we would agree in most cases this is a correct statement. But we have no doubt that lying to a police officer about whether you are the driver of a car involved in an accident, and fleeing from the officer in an attempt to evade arrest for driving under the influence, suggests a willingness to lie and qualifies as misconduct involving moral turpitude. (Cf. Vasquez-Atempa v. Ashcroft (9th Cir. 2003) 81 Fed.Appx. 256 ["eluding the police while driving under the influence is different because it involves other criminal conduct that is contrary to accepted moral standards]"; see § 31 ["No person shall give . . . information to a peace officer . . . under the provisions of [the Vehicle Code] when such person knows that the information is false"]; People v. Morera-Munoz (2016) 5 Cal.App.5th 838.) In our view, Officer McLain's testimony about defendant's attempt to flee during a prior DUI/accident investigation, and defendant's false statement to McLain that he was not the driver of the car, were relevant to impeach defendant's testimony that he would not run from the police investigating an accident. Along with defendant's admission that he lied to Officer McLain if he said he was not the driver and had not drunk alcohol that day, the evidence reflected adversely on the overall credibility of defendant's testimony that he was not the driver, was unconscious for two hours and five minutes, and did not intentionally run from the police investigation of the collision on May 28, 2016. That the officer's testimony had such probative value did not transform it into inadmissible propensity evidence. The trial court engaged in an evaluation of the evidence under Evidence Code section 352 and concluded that, for impeachment purposes, the probative value of the evidence outweighed the potential for undue prejudice and consumption of time if defendant chose to testify. " 'No witness including a defendant who elects to testify in his own behalf is entitled to a false aura of veracity.' " (People v. Sanghera (2016) 6 Cal.App.5th 365, 372, quoting People v. Beagle (1972) 6 Cal.3d 441, 453.) The officer's testimony was brief and did not cause the trial to degenerate into a nitpicking war of attrition over a collateral credibility issue. (Wheeler, supra, 4 Cal.4th at p. 296.) We cannot say the trial court abused its discretion in admitting Officer McLain's testimony. Consecutive vs. Concurrent Sentences
In case No. CR1504084, the misdemeanor case, defendant was charged with and convicted of DUI and resisting arrest. (§ 23152, subd. (a), Pen. Code, § 148, subd. (a)(1).)
Penal Code section 669 provides in relevant part: "(a) When a person is convicted of two or more crimes, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same judge or by different judges, the second or other subsequent judgment upon which sentence is ordered to be executed shall direct whether the terms of imprisonment or any of them to which he or she is sentenced shall run concurrently or consecutively. . . . [¶] (b) . . . Upon the failure of the court to determine how the terms of imprisonment on the second or subsequent judgment shall run, the term of imprisonment on the second or subsequent judgment shall run concurrently." Defendant argues the trial court failed to expressly order consecutive sentences for the felony and misdemeanor cases before it for sentencing on September 25, 2016. Absent such an express order, the sentences must be deemed to run concurrently and presentence credit must be applied against all sentences equally. (Pen. Code, §§ 669, subd. (b), 2900.5, subd. (a).) Defendant asks us to make a preliminary determination that the sentencing court failed to issue an order that the sentences in the felony case, case No. CR1602568, and in the misdemeanor case, case No. CR1504084, be served consecutively. (People v. Fares (1993) 16 Cal.App.4th 954.) We decline to do so because the record shows the court did expressly order consecutive sentences.
The record shows the court had both cases before it for sentencing on the same day. The court indicated its intention to apply all of the custody credits to the misdemeanor case. Defense counsel asked that if the court did not grant probation, it "consider giving Mr. Collins a concurrent sentence on the misdemeanors and run those concurrent with his felony convictions." The prosecutor argued against probation and asked that the sentences be run consecutively. He made no distinction between the misdemeanor and felony cases. The court stated: "Given that the files before the Court at this time appear to constitute Mr. Collins' fifth and sixth convictions for driving under the influence, I do not find that a grant of probation would be appropriate. Nor do I find appropriate concurrent sentencing." (Italics added.) The court stated multiple reasons for choosing consecutive sentences. In case No. CR1602568, the court then imposed consecutive sentences for the two felony counts. Regarding "the misdemeanor case, which is [case No.] CR1504084, Mr. Collins is committed to serve 252 days in the county correctional facility with credit for time served of 126 actual days and 126 days for good-time/work-time, for a credit total of a commitment of 252 days" (italics added). In other words, the court's sentence in the misdemeanor case, No. CR 1504084, addressed a term of custody that consumed defendant's accumulated credits to date, leaving no credit for time served on defendant's felony sentences in case No. CR1602568. The record therefore indicates defendant's sentence in case No. CR15404084 was consecutive to the sentence in case No. CR 1602568. Additionally, the sentencing court ran the misdemeanor sentence in count 3 of case No. CR 1602568 for the conviction of section 14601.5 concurrent with the felony sentences of three years eight months. We therefore find no violation of Penal Code section 669, subdivision (b), as argued by defendant.
Penal Code section 2900.5, subdivision (b) provides: "Credit shall be given only once for a single period of custody attributable to multiple offenses for which a consecutive sentence is imposed." Consistent with that statutory mandate, in case No. CR1504084, the court committed defendant to 252 days in county jail with 252 days' credit for time served.
When it was belatedly brought to the court's attention that no sentence had been pronounced on count 3 in case No. CR1602568, the court imposed a concurrent sentence with counts 1 and 2 for driving on a suspended license, a misdemeanor. --------
"The requirement that the trial court express its determination in the form of an order is not a pointless technicality. Rather, it makes clear that the court, not a clerk, has made the requisite determination. Requiring the formality of an order guards against the risk that the clerk may include in the abstract of judgment a consecutive sentence provision and that the judge may sign the abstract without noticing the critical provision thus added." (People v. Caudillo (1980) 101 Cal.App.3d 122, 126-127.) Here, we see no basis for concluding the court failed to expressly order consecutive sentences when it stated that concurrent sentencing was not appropriate.
DISPOSITION
The judgment is affirmed.
/s/_________
Dondero, J.
We concur:
/s/_________
Humes, P. J.
/s/_________
Margulies, J.