People v. Calles

• Decision Date: 05 October 2012
• Docket Number: No. B225763.,B225763.
• Citation: 147 Cal.Rptr.3d 673,209 Cal.App.4th 1200
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Bryan CALLES, Defendant and Appellant.

209 Cal.App.4th 1200

147 Cal.Rptr.3d 673

2012 Daily Journal D.A.R. 13,904

The PEOPLE, Plaintiff and Respondent,

v.Bryan CALLES, Defendant and Appellant.

No. B225763.

Court of Appeal, Second District, Division 5, California.

Oct. 5, 2012.

Certified for Partial Publication.^*

See 3 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Punishment, § 344 et seq.

Gary V. Crooks, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Scott A. Taryle and Steven D. Matthews, Supervising Deputy Attorneys General, Robert David Breton and Linda C. Johnson, Deputy Attorneys General, for Plaintiff and Respondent.

MOSK, J.

INTRODUCTION

Defendant and appellant Bryan Calles (defendant) was convicted of two counts of gross vehicular manslaughter (Pen.Code, § 192, subd. (c)(1)¹), three counts of leaving the scene of an accident ( Veh.Code, § 20001, subd. (a)), and one count of second degree murder ( § 187, subd. (a)). On appeal, defendant claims that certain errors occurred at trial. In the published portion of this opinion, we hold that the jury did not commit misconduct by using a watch to time a period in question in order to consider the events that could have taken place in that period. We also hold that the trial court erred in failing to dismiss certain counts and in connection with staying or failing to stay execution on defendant's sentence with respect to certain counts and enhancements. The trial court also erred in awarding defendant presentence custody credits and failing to impose a criminal conviction assessment. We reverse and remand the matter for sentencing consistent with this opinion, and otherwise affirm the judgment.

BACKGROUND

A. Factual Background

1. Prosecution Evidence

Juan Rodriguez worked with defendant at the Bullet Freight Company. On May 16, 2008, they were scheduled to work at 7:00 p.m. At approximately 5:00 or 6:00 p.m. that day, Rodriguez dropped off defendant at his car after they intentionally inhaled nitrous oxide for about three to four hours.

Gustavo Lezama also worked with defendant at Bullet Freight Company and also was scheduled to begin work at 7:00 p.m. on May 16, 2008. On that day, Lezama was driving east on East Washington Boulevard on his way to work. When stopped at a red traffic light, Lezama heard defendant shout Lezama's name, and Lezama saw defendant perspiring and waiving at him from his Honda Civic in the left adjacent lane. When the traffic light turned green, Lezama drove forward through the intersection, but defendant remained at the intersection for three or four seconds and continued waving while still looking in the direction of where Lezama's vehicle had been when he had been stopped at the traffic light.

Lezama then saw defendant's vehicle leave the intersection and follow about three to four car lengths behind Lezama's vehicle. When defendant had traveled approximately one-quarter mile, Lezama saw defendant drive into the middle divider lane as if to make a u-turn, and he heard the engine of defendant's vehicle “roar.” Lezama, looking over his shoulder, saw defendant's vehicle accelerate, swerve across oncoming traffic, and turn toward the sidewalk striking four pedestrians. Lezama saw two of the pedestrians “fly up really high.” One pedestrian landed on the top of a fence and the other slammed into a wall. Lezama also saw that a woman was under defendant's vehicle. Lezama did not hear any sound, such as a “screeching sound,” that would have indicated that defendant pressed hard on the brakes before the impact. Lezama pulled over to the side of the road, approximately 15 feet from the accident and exited his vehicle to attend to the accident victims.

May 16, 2008, Michelle Pineda was walking on the sidewalk adjacent to East Washington Boulevard with her friends from work, Lisa Santee, Miguel Rocha, and Dominic Medina, when a car suddenly hit her friends. Following the impact, Rocha's body was near a pole and there was a pool of blood emanating from his head.

According to Pineda, as a result of the impact, Medina was impaled and suspended off the ground by spikes on a wrought iron fence. Lezama testified that the fence spikes entered Medina's abdomen and exited his chest. Daniel Dragotto, a Los Angeles City Fire Department paramedic, and others cut Medina down from the fence. Medina was alive and transported to the hospital with parts of the spikes still in his chest.

Lezama testified that following the impact, Santee was under the driver's side of defendant's vehicle “screaming for help loudly.” Pineda observed that Santee's arms were unnaturally bent, as if they were broken.

According to Lezama and Pineda, Pineda continuously screamed “Oh God.” Pineda noticed defendant stare at her. Defendant had both eyes open, and he appeared to be in a state of shock.

Faye Shen, the owner of a nearby business, saw the accident scene shortly after defendant's vehicle struck the pedestrians. Shen noticed that defendant's eyes were open and that defendant stared straight ahead for a “couple of minutes” without any reaction.

Neither Pineda nor Shen saw defendant get out of his car. Pineda testified that defendant never checked on the welfare of anyone who was in that area.

Just after Pineda started to walk to her nearby office to get help, defendant started his vehicle. She heard defendant's vehicle “rev[ ] up,” the tires “screech,” and Santee scream. Lezama saw defendant reverse his vehicle, which was on the sidewalk, over Santee; the tire rim exposed by a blown out tire on defendant's vehicle “grinded her.” Pineda saw Santee “bouncing” from the sidewalk to the gutter.

Shen was about two feet from defendant when he started to back up, and she yelled at him, “Oh my God, please stop. Stop.” Defendant, whose driver's side window was rolled down, ignored Shen's pleas and, without looking back to see if any cars were coming, continued to back up into the street, dragging Santee's body across the sidewalk and rolling over her body as it fell into the gutter. After defendant backed into the street, Lezama saw him drive away from the scene westbound on East Washington Boulevard.

Defendant's co-worker, Rodriguez, explained that as he was driving to work at Bullet Freight Company with two friends, he saw defendant driving in the opposite direction. Defendant's face was bloody, and his vehicle was “totaled” and driving “on its rims.” Rodriguez executed a u-turn, caught up to defendant, and gestured for defendant to meet them at a nearby McDonald's. Defendant and Rodriguez made a series of turns and entered the McDonald's parking lot.

According to Rodriguez, the driver's door of defendant's vehicle was damaged, its window was shattered, and the roof and front fender were smashed. When Rodriguez and his friends asked defendant what had happened, defendant, who had blood “running from his forehead all the way to his cheeks,” said nothing and was mumbling to himself. Defendant appeared to be in a state of shock. Rodriguez and his friends took items from defendant's vehicle and placed them in Rodriguez's vehicle, including a tank of nitrous oxide, papers, and clothing. Defendant entered Rodriguez's vehicle with Rodriguez and his friends, and they drove to the Bullet Freight Company so defendant and Rodriguez could commence work.

After defendant started his work shift, Alex Prosak, the assistant manager at Bullet Freight Company, asked defendant if he had been involved in an incident. Defendant responded that he was involved in a “hit-and-run accident” approximately six miles away near the 710 and 105 freeways. The intersection of the 710 and 105 freeways was not near the accident involving the pedestrians on East Washington Boulevard. Defendant responded to all of Prosak's questions, but his “mind seemed to be wandering.”

Los Angeles Police Department Officer Jorge Gonzalez testified that he went to a McDonald's parking lot where he saw defendant's vehicle. Defendant's vehicle had two flat tires, the windshield and roof were caved in, the front bumper was almost completely detached, and the left portion of the one of the bumpers was missing. There was blood on the undercarriage, roof, seat, gear shift, and what was left of the windshield. The Los Angeles Police Department impounded defendant's vehicle and placed an agency hold on it.

Officer Gonzalez arrested defendant in the early morning of May 17, 2008. Defendant had a laceration on his forehead and complained of pain in his face and shoulder. Defendant received medical treatment at the county jail.

Los Angeles Police Department Collision Investigator Danny Balmaceda did not perform any mechanical analysis of defendant's vehicle, but he saw the vehicle and went inside it. He did not notice “anything odd” about the position of the steering wheel.

As a result of the accident, Medina's right lung was pierced, both of his legs and left forearm were broken, and his mouth was lacerated. Medina was hospitalized for about two months, undergoing surgery and follow-up care, and was still receiving physical therapy at the time of trial.

When Christopher Hare, a City of Los Angeles Fire Department Captain, arrived at the scene of the accident, Rocha was dead. Los Angeles County Coroner's Office Medical Examiner Kevin Young opined that Rocha died from the severe and multiple injuries he had sustained. Rocha had sustained massive skull and facial fractures which partially severed his brain stem. In addition, Rocha's pelvis, right femur, left tibia, and half of his ribs were fractured, and his lungs, spleen, and liver had been perforated.

When Benjamin Arnold, a paramedic for the City of Los Angeles Fire Department, arrived at the scene of the accident, Santee was still alive. He and other paramedics initiated life support procedures, but Santee “lost her pulse” and died while being...