Opinion
G057097
06-04-2020
THE PEOPLE, Plaintiff and Respondent, v. RODERICK KENT JERRO, Defendant and Appellant.
Martin Kassman, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Michael P. Pulos and Joseph C. Anagnos, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15CF1773) OPINION Appeal from a judgment of the Superior Court of Orange County, Robert Alan Knox, Judge. Affirmed in part, reversed in part, and remanded with directions. Martin Kassman, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Michael P. Pulos and Joseph C. Anagnos, Deputy Attorneys General, for Plaintiff and Respondent.
Roderick Kent Jerro appeals from a judgment after a jury convicted him of vehicular manslaughter with gross negligence and hit and run causing death, and he pleaded guilty to possession of a firearm by a felon. Jerro argues the following: the trial court erred in imposing the Penal Code section 667, subdivision (a)(1), five-year enhancements; insufficient evidence supports his conviction for hit and run causing death; and the court erred by imposing and not staying the sentence on the hit and run causing death conviction.
Although we conclude there was error concerning imposing the Penal Code section 667, subdivision (a)(1), five-year enhancements, Jerro was not prejudiced. However, we remand the matter for the trial court to do the following: exercise its discretion whether to strike those five-year enhancements; and strike the prior prison term enhancements. None of his other contentions have merit, and in all other respects, we affirm the judgment.
FACTS
I. Substantive Facts
One summer evening after dark, Miguel Villagomez, Jr., drove a black pickup truck through a red light and hit Jerro's dark gray car. Villagomez sped away, and Jerro chased him.
Villagomez, with Jerro a few seconds behind, drove in a residential neighborhood with their headlights off and reached speeds over 80 miles per hour, drove on the wrong side of the road, ran cars off the road, and ran stop signs and red lights. During this chase, Jerro spoke with an OnStar advisor, a police dispatcher, and his wife.
While running a red light, Villagomez sped in front of two pedestrians, a 14-year-old girl (the girl or sister) and her nine-year-old brother (the boy, brother, or son), who were lawfully walking in a crosswalk towards their mother (mother) who was on the other side of the street. Frightened by Villagomez's truck, sister stepped back, but the boy ran towards mother. Jerro's driver's side mirror struck the boy and mother heard a "loud thump." The boy died.
Jerro continued chasing Villagomez until Villagomez crashed into a wall. Police officers arrived and detained both men. Jerro told a detective that Villagomez hit "something in the roadway," which then hit the left side of his car, but he continued driving.
Jerro's car suffered damage, including crumpling through the driver's side door and removal of the driver's side mirror. At the intersection where Jerro hit the boy, officers found parts of Jerro's car, including his driver's side mirror. Later, when a detective told Jerro the boy had died, Jerro seemed upset but the detective did not know whether the response was genuine.
A forensic investigator recovered biological material from Jerro's car—the driver's side front bumper below the headlight and where the driver's side mirror was removed. Forensic testing later revealed the boy could not be excluded as the source of the DNA in this biological material. The investigator could not recover sufficient DNA from Villagomez's truck to test. II. Procedural Facts
An information charged Jerro with vehicular manslaughter with gross negligence (Pen. Code, § 192, subd. (c)(1), all further statutory references are to the Penal Code, unless otherwise indicated) (count 1), hit and run causing death (Veh. Code, § 20001, subds. (a), (b)(2)) (count 2), and possession of a firearm by a felon (§ 29800, subd. (a)(1)) (count 3). As to count 1, the information alleged he fled the scene of the crime (Veh. Code, § 20001, subd. (c)). The information further alleged he suffered two prior strikes (§§ 667, subds. (d), (e)(2)(A), 1170.12, subds. (b), (c)(2)(A)), two prior serious felonies (§ 667, subd. (a)(1) (section 667(a)(1)), and four prior prison terms (§ 667.5, subd. (b)). Before trial, Jerro pleaded guilty to count 3.
In People v. Villagomez (Feb. 5, 2020, G056987) [nonpub. opn.], we affirmed Villagomez's conviction for vehicular manslaughter with gross negligence.
At trial, as relevant to the issues on appeal, mother testified she saw a car and a truck and she told an officer the white truck hit her son. Sister testified she did not remember whether it was the first or second car that hit her brother but she told the police it was the front driver's side of a black car that hit him. On cross-examination, she testified the first car hit him.
One witness testified he saw a dark pickup truck followed by a dark sedan. He said the truck passed the pedestrians without touching them but the sedan's driver's side mirror hit the boy. He admitted it was not clear to him at first which vehicle hit the boy, but he told the police the vehicle would have blood spatter on the mirror or a missing mirror. One witness testified she could not say whether it was the truck or the car that hit the boy but she told an officer it was the truck because that is what she assumed.
During jury deliberations, Jerro waived his right to a jury trial on the prior conviction and prison allegations. The jury convicted Jerro of counts 1 and 2; the jury could not reach a verdict on count 1's enhancement, and the trial court later dismissed it.
Jerro filed a sentencing memorandum, arguing the trial court should strike his two prior strike convictions, and later a supplemental brief, contending count 1 was not a serious felony because the jury did not find Jerro inflicted great bodily injury and thus his sentence should not be doubled.
At a bifurcated trial, the trial court found true the prior conviction and prison allegations. At the sentencing hearing, the trial court and counsel discussed at length whether count 1 was a strike.
The trial court sentenced Jerro to 17 years in prison as follows: count 1—six years; count 2—one year; and section 667(a)(1), priors—two five-year terms. The court imposed a concurrent sentence on count 3, dismissed the prior strike allegations, and stayed punishment on the prison priors.
Relying on section 1192.8, subdivision (a), Jerro's counsel requested the trial court find count 1 was a "non-strike" because the jury did not find he inflicted great bodily injury. The court said counsel did not request that finding and the jury did not make that finding. The court declined to make that factual finding because it was not required to do so. The court added section 1192.8 "makes very clear" count 1 was "a serious felony." The court opined the great bodily injury finding did not impact his sentence in this case but it would if he suffered a future felony conviction. Jerro's counsel continued to focus on whether count 1 qualified as a strike and asked whether the court was considering it a strike or not. The court replied, "I'm not making any findings about whether or not it's a strike. I'm only finding, based on the language that's in [section] 1192.8, that it's a serious felony conviction within the meaning of . . . [section] 1192.8."
The prosecutor requested that because of Senate Bill No. 1393's (S.B. 1393) impending effective date, the trial court rule whether it would impose or strike the section 667(a)(1) prior convictions. The court stated, "Yes. I'm sentencing pursuant to the law as it exists right now, and I'm -- and I would do that in the future."
DISCUSSION
Jerro raises a number of issues regarding the section 667(a)(1) prior convictions. First, he argues the trial court erred by imposing section 667(a)(1)'s five-year term because count 1 was not a serious felony. Second, he contends the absence of a jury finding he inflicted great bodily injury in the commission of count 1 violated his Sixth and Fourteenth Amendment rights pursuant to Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi). Jerro admits though that although his trial counsel argued count 1 was not a serious felony, he did not argue the trial court should not impose the section 667(a)(1) five-year terms for that reason. The Attorney General responds the trial court's implied finding Jerro inflicted great bodily injury was supported by substantial evidence and although he waived the right to a jury trial on that finding, any error was harmless.
Indeed, counsel's argument below was focused solely on the consequences of such a finding under the "Three Strikes" law.
Section 667, subdivision (a)(1), provides, "Any person convicted of a serious felony who previously has been convicted of a serious felony in this state or of any offense committed in another jurisdiction which includes all of the elements of any serious felony, shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately." Serious felonies are defined in section 1192.7, subdivision (c). (§ 667, subd. (a)(4).)
Section 1192.7, subdivision (c), does not include vehicular manslaughter with gross negligence. But section 1192.8, subdivision (a), makes vehicular manslaughter with gross negligence a serious felony if it "involve[d] the personal infliction of great bodily injury on any person other than an accomplice."
Additionally, section 1192.7, subdivision (c)(8), defines a serious felony as "any felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice."
The parties spend considerable time discussing whether count 1 was a serious felony, the trial court impliedly found it was, and Jerro waived his right to a jury trial (People v. Arnett (2006) 139 Cal.App.4th 1609, 1614 [waiver]; but see People v. Taylor (2004) 118 Cal.App.4th 11, 27 , fn. 6 (Taylor) [no waiver]). We need not decide these issues because we conclude the failure to submit the issue of whether Jerro inflicted great bodily injury to the jury was harmless.
A defendant has both a federal constitutional right under Apprendi, supra, 530 U.S. 466, and a California statutory right pursuant to section 969f, subdivision (a), to a jury trial on the facts that would make a charged offense a serious felony under section 667(a)(1), and section 1192.7, subdivision (c). (Taylor, supra, 118 Cal.App.4th at pp. 29-30.) Violation of these rights is error.
"'Failure to submit a sentencing factor to the jury, like failure to submit an element [of the crime] to the jury, is not structural error.' [Citation.] Such an error does not require reversal if the reviewing court determines it was harmless beyond a reasonable doubt, applying the test set forth in Chapman v. California (1967) 386 U.S. 18 . . . . [Citation.] . . . The failure to submit a sentencing factor to a jury may be found harmless if the evidence supporting that factor is overwhelming and uncontested, and there is no 'evidence that could rationally lead to a contrary finding.' [Citations.]" (People v. French (2008) 43 Cal.4th 36, 52-53, fn. omitted; People v. Carbrera (2018) 21 Cal.App.5th 470, 479.)
Jerro concedes it was beyond dispute either he or Villagomez inflicted great bodily injury on the boy. The record includes overwhelming evidence Jerro's car struck and killed the boy making count 1 a serious felony, and the error was harmless beyond a reasonable doubt.
Two independent witnesses testified Jerro's car hit the boy. Sister testified she did not remember whether it was the first or second car that hit her brother, but she repeatedly said it was a car; Villagomez drove a truck. At the intersection where the vehicle hit the boy, officers found a side mirror. Jerro's car was missing its driver's side mirror. The boy's DNA was found on Jerro's car. This was overwhelming evidence Jerro's car struck and killed the boy.
Jerro relies on mother's and another independent witness's testimony to claim the issue of who hit the boy was "'hotly contested at trial.'" Mother's testimony she told an officer a white truck hit her son and the witness's "assumption" it was the truck do not undermine our conclusion the error was harmless beyond a reasonable doubt in light of the overwhelming forensic evidence and corroborating eyewitness testimony. Thus, Jerro was not prejudiced by the error in not submitting the truth of the great bodily injury factual finding to the jury.
The parties agree that if we conclude Jerro's claims are meritless, we must remand the matter for the trial court to exercise its discretion pursuant to S.B. 1393. Under the versions of sections 667, subdivision (a), and 1385, subdivision (b), effective until December 31, 2018, courts were required to impose a five-year consecutive term for "[a]ny person convicted of a serious felony who previously has been convicted of a serious felony" (§ 667, subd. (a)), and the court had no discretion "to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under [s]ection 667" (§ 1385, subd. (b)).
On September 30, 2018, the Governor signed S.B. 1393 which, effective January 1, 2019, amended sections 667, subdivision (a), and 1385, subdivision (b), to allow a court to exercise its discretion to strike or dismiss for sentencing purposes a prior serious felony conviction. (Stats. 2018, ch. 1013, §§ 1-2.) S.B. 1393 applies retroactively. (In re Estrada (1965) 63 Cal.2d 740, 745; People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 308; People v. Garcia (2018) 28 Cal.App.5th 961, 971-973.)
"'[W]hen the record shows . . . the trial court proceeded with sentencing on the . . . assumption it lacked discretion, remand is necessary so . . . the trial court may have the opportunity to exercise its sentencing discretion at a new sentencing hearing. [Citations.] . . . But if '"the record shows . . . the trial court would not have exercised its discretion even if it believed it could do so, then remand would be an idle act and is not required."' [Citation.]" (People v. McDaniels (2018) 22 Cal.App.5th 420, 425.)
Here, the Attorney General states remand is required because it is unclear whether the trial court would impose the section 667(a)(1) five-year terms. At the sentencing hearing, when the prosecutor inquired whether the court would state its intentions pre-S.B. 1393's effective date to avoid remand, "I'm sentencing pursuant to the law as it exists right now, and I'm -- and I would do that in the future." Relying on the fact the trial court dismissed the strike priors and stayed punishment on the prison priors, the Attorney General asserts it is possible the court's statement it "would do that in the future" meant the court would strike the section 667(a)(1) five-year terms when S.B. 1393 became effective. We agree remand is not an idle act because the court's intentions were not clear from the record.
Additionally, the parties agree that on remand the trial court must strike the prior prison terms (§ 667.5, subd. (b)). Following the enactment of Senate Bill No. 136, Jerro's four prison priors no longer qualify as section 667.5, subdivision (b), enhancements because they were not for sexually violent offenses. (People v. Jennings (2019) 42 Cal.App.5th 664, 682 [Sen. Bill No. 136 retroactive and eliminated all prior prison term enhancements except for sexually violent offenses].) We reverse Jerro's four prison priors. II. Sufficiency of the Evidence—Count 2
Jerro contends insufficient evidence supports his conviction for count 2. Not so.
"'On appeal, the test of legal sufficiency is whether there is substantial evidence, i.e., evidence from which a reasonable trier of fact could conclude that the prosecution sustained its burden of proof beyond a reasonable doubt. [Citations.] Evidence meeting this standard satisfies constitutional due process and reliability concerns. [Citations.] [¶] While the appellate court must determine that the supporting evidence is reasonable, inherently credible, and of solid value, the court must review the evidence in the light most favorable to the [judgment], and must presume every fact the [trier] could reasonably have deduced from the evidence. [Citations.] Issues of witness credibility are for the [trier of fact]. [Citations.]' [Citation.]" (People v. Vela (2012) 205 Cal.App.4th 942, 952 (Vela).)
Vehicle Code section 20001, subdivision (a), provides, "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 [Vehicle Code] [s]ections 20003 and 20004." Vehicle Code section 20001, subdivision (a), requires "proof the accused knew or was aware that (1) he or she was involved in an accident and (2) the accident resulted in injury to another." (People v. Harbert (2009) 170 Cal.App.4th 42, 45.) Constructive knowledge is sufficient. "'[C]riminal liability attaches to a driver who knowingly leaves the scene of an accident if he actually knew of the injury or if he knew that the accident was of such a nature that one would reasonably anticipate that it resulted in injury to a person.' [Citation.]" (Id. at p. 52.)
Here, there was sufficient evidence Jerro knew the accident was of such a nature that one could reasonably anticipate it resulted in injury to a person. Jerro chased Villagomez at high speeds through an intersection, where pedestrians lawfully have the right to cross, in an inhabited area at night. The evidence demonstrated Jerro's car suffered crumpling through the driver's door and separation of the driver's side mirror from striking the boy. The boy's DNA was recovered from Jerro's car. Jerro admitted to a detective the left side of his car struck something but he kept driving. Based on this evidence, the jury could reasonably conclude Jerro knew he struck a person and the person suffered an injury.
Jerro relies on the following evidence to demonstrate he did not know he hit the boy: his statements during his telephone calls do not indicate he was aware he struck the boy; had he known he struck the boy, he would have got on a nearby freeway to attempt to avoid apprehension instead of chasing Villagomez; and when the detective told him the boy died, he was upset. The jury heard this evidence and rejected it, and we do not reweigh the evidence. (Vela, supra, 205 Cal.App.4th at p. 952.) Sufficient evidence supports Jerro's conviction for count 2. III. Section 654
Jerro asserts the trial court erred by imposing sentence on count 2 because it arose from the same act or course of conduct as count 1. Again, we disagree.
Section 654 provides that "[a]n 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." Section 654 "requires a two-step inquiry, because the statutory reference to an 'act or omission' may include not only a discrete physical act but also a course of conduct encompassing several acts pursued with a single objective." (People v. Corpening (2016) 2 Cal.5th 307, 311.) "At step one, courts examine the facts of the case to determine whether multiple convictions are based upon a single physical act. [Citation.]" (Id. at p. 312.) If the convictions involve more than one act, courts determine whether the course of conduct involved multiple intents and objectives. (Id. at p. 316.) We review the trial court's express or implied finding section 654 does not apply for substantial evidence. (People v. Brents (2012) 53 Cal.4th 599, 618.)
People v. Butler (1986) 184 Cal.App.3d 469 (Butler), is instructive. In that case, the court rejected defendant's argument consecutive sentences for vehicular manslaughter and felony hit and run violated section 654. (Butler, supra, 184 Cal.App.3d at p. 472.) The court concluded there was not a single indivisible course of conduct because the act of intentionally leaving the scene of the accident was an independent and separate criminal act from driving under the influence of alcohol—neither could be viewed as the means toward the other. (Id. at pp. 473-474.) The court opined these were "independent and separate criminal act[s]." (Id. at p. 474.) The court concluded, "If multiple punishment is prohibited in this case, as a matter of law, there would be no incentive for a person who causes an accident to stop and render aid as required by Vehicle Code section 20001." (Butler, supra, 184 Cal.App.3d at p. 474.)
Here, sufficient evidence supports the trial court's implied finding there was first a course of conduct and second Jerro had different intents and objectives in the vehicular manslaughter and hit-and-run offenses. In count 1, Jerro acted with general intent and negligently drove a vehicle and caused a death. In count 2, Jerro intentionally left the scene of the incident instead of remaining and providing aid to the boy as required by law. The gravamen of a hit-and-run offense is flight from the scene and not the perpetrator's intention to hit or to not hit a pedestrian. (People v. Escobar (1991) 235 Cal.App.3d 1504, 1509 [gravamen of Vehicle Code section 20001 offense is leaving scene without presenting identification or rendering aid and not initial injury of victim].)
Jerro claims his intent and objective was merely to catch Villagomez to hold him financially responsible. The trial court impliedly concluded Jerro had multiple intents and objective, and sufficient evidence supports that finding. The court did not err by failing to stay the sentence on count 2.
Jerro suggests the Butler court's reasoning is unsound because the California Supreme Court overruled a case upon which the Butler court relied—In re Hayes (1969) 70 Cal.2d 604 (Hayes). It is true that in People v. Jones (2012) 54 Cal.4th 350, 356, our Supreme Court overruled Hayes because its rationale "would permit multiple punishment in many cases when a single physical act is made punishable by different provisions of law." The Jones court, however, noted Butler "may have been correct apart from Hayes" because it was a two-act case. (Jones, supra, 54 Cal.4th at p. 358.) As we explain above, this was a two-act case, and when given the opportunity, the Supreme Court did not overrule Butler, which remains good law.
DISPOSITION
We reverse Jerro's four prior prison terms. The matter is remanded to the trial court with directions to consider its discretion to strike the prior serious felony enhancements under section 667(a)(1), and to strike the four prior prison terms. In all other respects the judgment is affirmed.
O'LEARY, P. J. WE CONCUR: MOORE, J. THOMPSON, J.