People v. Bouchereau
| Decision Date | 06 September 2018 |
| Docket Number | H044551 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. ANTHONY BOUCHEREAU, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Monterey County Super. Ct. No. SS151129A)
Defendant Anthony Bouchereau appeals after a jury convicted him of vehicular manslaughter with gross negligence (Pen. Code, § 192, subd. (c)(1)) and hit and run resulting in death (Veh. Code, § 20001, subd. (b)(2)). The jury found true an allegation that defendant fled the scene of the crime (Veh. Code, § 20001, subd. (c)), and the trial court found true an allegation that defendant had served a prior prison term (Pen. Code, § 667.5, subd. (b)). The trial court sentenced defendant to 12 years in prison: a six-year term for the gross vehicular manslaughter conviction, a five-year term for the flight allegation, and a one-year term for the prior prison term allegation.
On appeal, defendant contends the trial court erred by (1) failing to instruct the jury to consider "all surrounding circumstances" when determining if he violated the prima facie speed law and (2) admitting "gruesome" autopsy photographs of the victim. Defendant also contends, and the Attorney General concedes, that there was insufficient evidence to support the trial court's true finding as to the prior prison term allegation. We find no instructional error, and we find no error with respect to the admission of the photographs, but we agree the prior prison term enhancement must be stricken.
On July 5, 2015, defendant was driving through Salinas. Yesenia Romero was defendant's girlfriend and front seat passenger. Defendant's vehicle1 was traveling 50 miles per hour in a 25 mile-per-hour zone. His vehicle entered an intersection against a red light, where it collided with a van. Romero was ejected from the vehicle, causing her left leg to become detached from her body, and resulting in her subsequent death. At trial, the defense theory was that an unopened iced tea can had become wedged under the vehicle's brake pedal, so that defendant could not apply the brakes prior to the collision.
On July 5, 2015, several witnesses saw a black vehicle going "really fast" towards the intersection of Madeira and Market Street, where the speed limit was 25 miles per hour. Defendant was driving the vehicle, and Romero, his girlfriend, was the front seat passenger. As defendant's vehicle approached the intersection, which had a red light, the engine was "going vroom," as if the driver had stepped on the gas pedal.
Defendant's vehicle collided with a van that had entered the intersection on a green light. The collision caused the van to spin around. Defendant's vehicle struck a light pole and ended up on a grassy area in front of an apartment complex.
After the collision, Romero was lying on the ground. Her left leg was severed at the hip and was some distance away from the rest of her body. A witness heard Romero say, "[H]elp," and told defendant to help her. Defendant went up to Romero and said, Defendant kissed Romero and said, "I'm sorry, baby," then ran off.
When first responders arrived, Romero was alert and responsive, but "obviously in a state of shock." She was taken to the hospital by ambulance. Her leg was collected and brought to the hospital also. By the time she reached the hospital, Romero was no longer breathing and had no pulse. After attempts to resuscitate her failed, Romero was pronounced dead.
At about midnight on the night of the collision, a California Highway Patrol (CHP) officer contacted defendant, who was walking on the freeway. Defendant said he was "walking out of town" and had no "other means" of traveling. Defendant did not mention that he had been in a vehicle collision. The CHP officer told defendant he could not walk on the freeway, and defendant headed towards a surface street. The CHP officer did not learn that defendant was a person of interest in the collision investigation until the following morning.
Two days after the collision, Romero's best friend sent a text message to Romero's phone, explaining that the phone's owner had died and asking for the phone back. The response was, Romero's friend requested the photos from Romero's phone, and she received a number of photos. When Romero's friend received a message saying that the phone was going to be sold for $250, Romero's friend offered to pay $500 for the phone. Romero's friend arranged a meeting for the next day. When she arrived at the meeting spot along with Romero's brother and cousin, she saw defendant, who then tried to run, saying, "I don't want to go to jail." Romero's friend and brother grabbed defendant and held him until the police arrived.
CHP investigators watched surveillance videos showing the collision and inspected the collision site. They found no tire or wheel friction marks before the location where defendant's vehicle collided with the van, which indicated thatdefendant's vehicle had not braked. They saw no evidence that defendant's vehicle had swerved or decelerated prior to colliding with the van. The investigators were able to determine that defendant's vehicle had been traveling at a speed of 50 miles per hour.
Defendant's vehicle was towed and searched. On the front passenger floorboard, there were two unopened iced tea cans. One was lemon flavored and the other was mango flavored. There was also an empty, crushed Sprite can on the front passenger floorboard. Neither of the iced tea cans had been punctured. The lemon-flavored iced tea can was "covered in biological matter," and the mango-flavored iced tea can had "very little" biological matter in comparison. There was also "[v]ery little" biological matter on the front driver's side floorboard, leading a CHP investigator to opine that both iced tea cans had been on the passenger side floorboard at the time of the collision.
CHP investigators performed a test with one of the cans. One investigator placed the lemon-flavored iced tea can under the brake pedal of defendant's vehicle and pressed down on the brake pedal, while another investigator watched to see if the brake lights came on. The investigators initially oriented the can horizontally under the brake pedal. In the horizontal position, the brake pedal could be depressed before any contact with the can, such that the brakes engaged. The investigators then placed the can in "a vertical orientation," with the top of the can facing towards the front of the car, which created more contact between the can and the brake pedal. When pressure was applied to the brake pedal, the can broke open. The brake lights also activated. The investigators concluded that one of the iced tea cans could not have prevented the full application of the brakes.
A CHP investigator performed a mechanical inspection of defendant's vehicle. He determined that the vehicle had been in good working order prior to the collision. The throttle was in proper working order, the accelerator was not stuck, the engine had been well-maintained, the tires were not worn out, the steering had been functional, andthe brakes—including the parking brake—had been working. Additionally, when the brake pedal was depressed, the rear brake lights turned on.
A CHP investigator opined that due to the divider between the front driver's side floorboard and the front passenger-side floorboard, an item on the front driver's side floorboard would not have been able to roll over to the front passenger-side floorboard, and vice-versa. He also opined that if an opened aluminum can had been underneath the brake pedal, the can would not have inhibited the brake pedal from being "fully applied," because the can would collapse or crush.
A defense expert conducted a test with an iced tea can and found that, when placed in a vertical orientation under the brake pedal, the can impeded application of the brake pedal. He concluded that an iced tea can could have impeded defendant's brakes from being applied. That conclusion was not changed by the fact that both iced tea cans in defendant's vehicle were found on the passenger-side floorboard, even though the can impeding the brakes would have had to have traveled up and over the "transmission hump" between the two floorboards. The defense expert acknowledged that when he conducted the test, the brake pedal moved down one inch before coming into contact with the iced tea can, which likely would have caused the brake light to come on. He also acknowledged that during his test, he depressed the brake pedal only to the point where it touched the can, and that he only applied pressure to the brake pedal with his hand. He did not apply enough force to crush the can.
Defendant testified, first describing how he met Romero on a dating website in April 2015, when he was living in Texas, and how he met Romero in person for the first time in June 2015, then moved in with her a week later.
On July 5, 2015, defendant and Romero argued about defendant's plan to return to Texas to see his two children. Romero also got upset because defendant asked to stop at a store for food, forgetting that Romero had packed food for him. They continuedarguing as defendant drove the car. After defendant called Romero "a bitch," Romero threw a can at him. The can hit defendant's shoulder and fell to the driver's side floorboard. Defendant called Romero "a bitch" again, and Romeo hit him on the arm. Defendant then stopped the car...
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