People v. Nuno

• Decision Date: 13 August 2018
• Docket Number: D072152
• Citation: 236 Cal.Rptr.3d 578,26 Cal.App.5th 43
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Rudolfo NUNO, Defendant and Appellant.

26 Cal.App.5th 43

236 Cal.Rptr.3d 578

The PEOPLE, Plaintiff and Respondent,

v.Rudolfo NUNO, Defendant and Appellant.

D072152

Court of Appeal, Fourth District, Division 1, California.

Filed August 13, 2018

As Modified on Denial of Rehearing August 24, 2018

Certified for Partial Publication.^*

Janice R. Mazur, El Cajon, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Sacramento, Julie L. Garland, Assistant Attorney General, San Diego, Eric A. Swenson, San Francisco, Meredith White, and Genevieve Herbert, Deputy Attorneys General, for Plaintiff and Respondent.

DATO, J.

Rudolfo Nuno hit a person with his car, causing serious injuries. He drove a few blocks away and called 911 to report the incident. Charged with assault with a deadly weapon (the car) ( Pen. Code § 245, subd. (a)(1) ),¹ battery with serious bodily injury (§ 243, subd. (d) ), making a criminal threat (§ 422), and felony hit-and-run ( Veh. Code, § 20001, subd. (a) ), the jury convicted him only of hit-and-run and acquitted him of the remaining charges. The court sentenced him to a middle term of two years after finding him presumptively ineligible for probation under section 1203, subdivision (e)(2) as a person "who used or attempted to use a deadly weapon upon a human being in connection with the perpetration of the crime of which he ... has been convicted."

Nuno argues insufficient evidence supports his hit-and-run conviction because he called for assistance soon after the incident. He also claims the court erred at sentencing in finding him presumptively ineligible for probation and not finding this an "unusual case[ ]" entitling him to probation "in the interests of justice." (§ 1203, subd. (e).) As we explain, there is sufficient evidence to support his conviction. Nevertheless, remand is necessary for resentencing because the court erroneously believed Nuno to be presumptively ineligible for probation.

FACTUAL AND PROCEDURAL BACKGROUND

J.C. owns an auto shop in San Diego. In late 2015, Nuno's truck was in the shop for repairs. Unhappy with the workmanship, Nuno went to J.C.'s office and accused J.C. of cheating him. J.C. replied that Nuno's truck had old parts. The two men left the office, and Nuno got into his car to leave. At some point they exchanged words; Nuno admitted calling J.C. a "fucking rata " (Spanish for "thief") after J.C. started "cussing [him] out."

As Nuno started to back up, his car hit J.C., fracturing his right leg and causing a large abrasion on his left knee. Bystanders called 911. Nuno left the scene, drove for two minutes, or about 75 feet, and called 911 to report the collision. He sounded frantic in the call, stating he had run a person over while reversing his car in fear of his life. An officer from the San Diego Police Department arrived shortly thereafter and drove with Nuno to the scene of the collision.

The San Diego County District Attorney filed a four-count information charging Nuno with assault with a deadly weapon (count 1), battery with serious bodily injury (count 2), making a criminal threat (count 3), and felony hit-and-run causing injury (count 4).

Nuno agreed his car struck J.C. but claimed it was an accident. The only dispute at trial as to counts 1 and 2 was Nuno's intent. Testifying for the prosecution, J.C. stated Nuno had tried twice to run him over and succeeded on his second try. He said Nuno had threatened him by saying he knew people who could harm his family. Bystanders described Nuno driving over J.C.'s leg and leaving the scene.

Nuno testified in his own defense. He described being in fear of an imminent attack as he tried to leave the shop. He said J.C. tried to open his car door as tool-wielding employees approached and started hitting the vehicle. Nuno claimed he struck J.C. by accident and stopped at the earliest opportunity he safely could. He denied ever threatening J.C. A recording of Nuno's 911 call was played for the jury. Other defense witnesses testified that J.C. had done shoddy repair work on Nuno's truck and had a reputation of dishonest dealings.

The court instructed the jury on each of the charged crimes. (CALCRIM Nos. 875, 925, 1300, 2140, 3145, and 3160.) It instructed on the affirmative defense of legal necessity as to the hit-and-run and directed the jury that Nuno could not be found guilty of assault or battery as charged in counts 1 or 2 if it found his conduct accidental. (CALCRIM Nos. 3403, 3404.) The jury convicted Nuno of felony hit-and-run ( Veh. Code, § 20001, subd. (a), count 4) but acquitted him of the remaining charges. Nuno filed a motion for a new trial, arguing the evidence was insufficient to support the guilty verdict based on the acquittals for assault and battery in counts 1 and 2. The court denied his motion.

At the sentencing hearing, the court found Nuno presumptively ineligible for probation as indicated in the probation report. It sentenced him to a middle term of 2 years with a total of 77 days of conduct and custody credit.

DISCUSSION

On appeal, Nuno challenges the sufficiency of the evidence to support his hit-and-run conviction and argues the court erred in finding him presumptively ineligible for probation for using a deadly weapon upon a human being (§ 1203, subd. (e)(2) ). We reject the first contention but accept the second. As we explain, Nuno was convicted based on his flight from the scene of the collision, and a deadly weapon was not used upon a human being in connection with that offense.

1. Overview of Vehicle Code Section 20001, Subdivision (a)

Nuno was convicted of violating Vehicle Code section 20001, subdivision (a), which provides that "[t]he 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." " Vehicle Code sections 20003 and 20004, in turn, require the driver to stop and provide identification and render aid to the victim, as well as to report the accident to authorities if there is no police officer present. Failure to comply with these requirements is a criminal offense. ( Veh. Code, § 20001, subd. (b)(1) & (2).)" ( People v. Martinez (2017) 2 Cal.5th 1093, 1102, 218 Cal.Rptr.3d 140, 394 P.3d 1066 ( Martinez ).)

Martinez explains that "although the Vehicle Code section 20001(a) offense is commonly referred to as a ‘hit and run,’ the term is something of a misnomer; the offense is ‘more accurately described as fleeing the scene of an injury accident.’ " ( Martinez, supra, 2 Cal.5th at p. 1102, 218 Cal.Rptr.3d 140, 394 P.3d 1066.) "That is to say, ‘ "the act made criminal" ’ under the statute ‘ "is not the ‘hitting’ but the ‘running.’ " ’ " ( Ibid. ) " ‘ "The legislative purpose of sections 20001 and 20003 is to prevent the driver of a vehicle involved in an injury-causing accident from leaving injured persons in distress and danger for want of medical care and from attempting to avoid possible civil or criminal liability for the accident by failing to identify oneself." ’ " ( Ibid. )

The duty to stop and assist " ‘is imposed upon drivers whether or not they are responsible for the accident itself.’ " ( People v. Valdez (2010) 189 Cal.App.4th 82, 87, 116 Cal.Rptr.3d 670 ( Valdez ).) " ‘[T]he occurrence of an injury accident is a condition precedent' to the imposition of a duty to stop, provide identification, and render aid—"but [it] is not an element of the crime" in the sense that it constitutes part of the conduct forbidden by the statute. [Citation.] Nor is any degree of fault required for conviction; a defendant who flees the scene of an injury accident has committed a crime even if the accident was solely the result of the victim's own negligence.’ " ( Martinez, supra, 2 Cal.5th at pp. 1102-1103, 218 Cal.Rptr.3d 140, 394 P.3d 1066.)

2. Sufficiency of the Evidence^**

3. Denial of Probation

Nuno argues the court erred in finding him presumptively ineligible for probation under section 1203, subdivision (e) and in further failing to find this was an unusual case to grant probation in the interests of justice. As we explain, the court erred in finding him presumptively ineligible for probation, and remand is necessary for resentencing.

a. Additional background

The probation department prepared a report that included results from the COMPAS (Correctional Offender Management Profiling for Alternative Sanctions) assessment, which placed Nuno at a low risk of recidivism:

"The assessed level of risk for recidivism suggests that the defendant is likely to be successful with minimal intervention and that felony summary probation or banked formal probation would adequately serve to protect the community. Intervention at a more intrusive level could prove ineffective or counter-productive based upon available research."

Nevertheless, the probation department recommended a two-year prison commitment for the hit-and-run with injury conviction. It stated Nuno was presumptively ineligible for probation because he had used a deadly weapon in perpetrating his crime (§ 1203, subd. (e)(2) ), and the presumption was not rebutted.

At sentencing, the court indicated it had read the probation report and stated Nuno was presumptively ineligible for probation due to his prior prison term . It is not clear whether the court misread the probation report or deemed Nuno presumptively ineligible on an alternative ground. It nonetheless entertained argument as to Nuno's request for probation.

Defense counsel argued Nuno's acquittals on counts 1 and 2 contradicted foundational facts in the probation report and undermined its sentencing recommendation. Counsel further argued the facts were unusual and rebutted any presumptive ineligibility for probation. The People disagreed and urged the court to find the case more egregious than the typical hit-and-run with injury based on the nature of J.C.'s injuries and...