People v. Leon CA2/6 ( 2020 )

Filed 11/16/20 P. v. Leon CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B302502
(Super. Ct. No. 2015040930)
Plaintiff and Respondent, (Ventura County)
v.
BRANDON STEVEN LEON,
Defendant and Appellant.
Brandon Steven Leon appeals his conviction by jury
for hit and run causing death (count 1; Veh. Code, § 20001, subd.
(b)(2))1, failure to perform a duty following an accident (count 2;
§ 20001, subd. (a)), misdemeanor driving with a license that was
suspended for driving under the influence (DUI) (count 3;
§ 14601.2, subd. (a)), and operating a vehicle without an ignition
interlock device (§ 23247, subd. (e)). The trial court sentenced
appellant to four years state prison on count 1 (hit and run
causing death), a concurrent two years on count 2, a consecutive
All statutory references are to the Vehicle Code unless
1
otherwise stated.
180 days county jail on count 3, and a concurrent 180 days county
jail on count 4. Appellant contends that the counts 1 and 2 hit-
and-run convictions must be reversed because he was not
conscious when he fled the scene. We strike the conviction on
count 2 (failure to perform a duty following an accident; § 20001,
subd. (a)) and affirm the judgment as modified. (Pen. Code,
§ 1260.)
Facts and Procedural History
On the evening of December 28, 2015, appellant
drove his Chevrolet Silverado truck into the path of a van driven
by Jesus Rodriguez on Old Telegraph Road, a few miles west of
Fillmore. Rodriguez’s wife, Maria, was a passenger in the van.
The impact caused the vehicles to spin off the road into an
agriculture field, and broke the drive train on appellant’s truck.
Michael Smith and Kristen Dewey witnessed the
collision and called 911. Appellant revved the engine and ground
the gears but could not move the truck. Appellant crawled out
the truck passenger door, inspected the truck damage, looked
inside the Rodriguez van, and walked away when he heard the
emergency vehicle sirens. Firefighters extracted Mr. and Mrs.
Rodriguez from the van and transported them to the hospital
where Mrs. Rodriguez died. Police officers determined that
appellant was the registered owner of the truck and that his
driver’s license was suspended based on a 2014 DUI conviction.
Appellant, as term of probation, had to install an ignition
interlock device in the truck but there was none.
Appellant walked up a riverbed back to his house in
Fillmore. The next morning, appellant hired a lawyer and turned
himself in at the CHP office where he was interviewed and
arrested. Appellant said the collision gave him a concussion, that
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he got out of his truck and spoke to Mr. & Mrs. Rodriguez
trapped in the van. According to appellant, they told him they
were OK. That was his story at trial. Appellant said he “flipped
out” and “just took off,” but did not intend to leave the accident
scene to avoid the police. It was later discovered that appellant
used his cell phone the morning after the accident to search the
internet for “‘vehicle accident in Fillmore, California,’” the “‘Best
hit and-run attorney in Ventura, California,’” and articles about
how long alcohol stays in the blood.
At trial, appellant admitted he was convicted of DUI
in 2014 and 2008, had a 2007 Kansas DUI conviction, and that he
was on probation and not to drink. Appellant denied drinking
the day of the accident but did drink on Christmas day, three
days before the collision. Appellant stated that he asked the
crash victims if they were OK, and walked home but did not
remember anything until the next morning. On cross-
examination, appellant admitted that his probation terms
required that he not drink and install an ignition interlock device
in his truck. Appellant acknowledged that he was warned that
he could be charged with murder if he drove under the influence
and caused a death.
Photos of appellant’s house showed alcohol cans and
bottles, a beer keg, and alcohol-related furnishings in the house
and the backyard. The prosecution called it “a shrine to alcohol.”
A $123.43 purchase was made on appellant’s credit card at the
Yard House restaurant/bar hours before the collision. Appellant
claimed that his sister used his credit card that day but a
restaurant doggie-bag containing hot chicken wings and a
quesadilla was in appellant’s truck. Appellant claimed that he
suffered a concussion, but a CT scan showed no internal brain
3
injury. Doctor Richard Rutherford, an emergency room
physician, examined appellant and medically cleared him for jail
on December 29, 2015. Appellant did not complain of headaches
or dizziness.
Appellant’s cell phone records showed that he called
his mother at 5:40 p.m. three hours before the collision, the same
time appellant claimed he was eating pizza with his mother.2 On
January 3, 2016, a few days after posting bail, appellant texted a
friend to bring beer to his house for a barbecue.
Substantial Evidence: Counts 1 and 2
Appellant contends that the prosecution failed to
prove he was conscious when he fled the traffic accident. As in
any substantial evidence case, we do not reweigh the evidence or
second-guess credibility determinations made by the jury (People
v. Ochoa (1993) 6 Cal. 4th 1199, 1206). On review, all conflicts in
the evidence are resolved in favor of the judgment. (People v.
Tafoya (2007) 42 Cal. 4th 147, 170.) “The test is whether
substantial evidence supports the [jury’s] decision, not whether
the evidence proves guilt beyond a reasonable doubt.
[Citations.]” (People v. Mincey (1992) 2 Cal. 4th 408, 432.)
On counts 1 and 2, the prosecution had to prove that
appellant willfully failed to stop, render reasonable assistance,
and provide identifying information after the collision.3
2The prosecution told the jury: “There’s food in the truck.
Doesn’t that look like a slice of pizza? Look closer. It’s a
quesadilla. So he has a to-go bag with a quesadilla and chicken
wings on the floor of his car from the accident. Mom’s house?
Yard House? Mom’s house? Yard House? Bar food?”
3On count 2, appellant was prosecuted for hit and run
causing serious injury (§ 20001, subd. (b)(2)), but convicted of the
4
(§ 20001.) The jury was instructed that appellant was not guilty
“if he acted while unconscious” and “[s]omeone may be
unconscious even though able to move. [¶] Unconsciousness may
be caused by a concussion [but] may not be based on voluntary
intoxication” and “[t]he People must prove beyond a reasonable
doubt that the defendant was conscious when he acted.”
(CALCRIM No. 3425.)
The jury, for good reason, rejected the defense theory
that appellant was unconscious when he fled the scene of the
accident. Smith and Deavy saw appellant rev the truck engine
and try to drive away, then crawl out the truck passenger door.
Appellant inspected the truck damage, looked at the victims in
the van, and fled as the emergency vehicles approached. Rather
than walk back home on the paved road, appellant took the
riverbed route, a remarkable feat in the middle of the night. The
next day, appellant told an officer that he “flipped out . . . and
then I just took off.”
The credit card records and chicken hot wings
supported the prosecution’s theory that appellant was drinking at
a restaurant/bar before the accident. A doggy bag with hot
chicken wings and a quesadilla was in the truck. The next day,
appellant made an internet search for hit and run fatalities in
Fillmore, the best hit and run attorney in Ventura County, and
how long it takes for alcohol to dissipate from the body.
Appellant claimed he suffered a concussion, but an emergency
room physician examined appellant and did a CT scan the day
after the collision, but did not diagnose or treat appellant for a
lesser included offense of failure to perform a duty following an
accident causing injury (§ 20001, subd. (a)).
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brain concussion. Appellant had a minor scalp laceration and did
not complain about headaches or dizziness.
Section 20001 required that appellant report the
collision “as soon as reasonably possible,” even if he suffered a
head injury. Instead, appellant walked home, called his parents
and sister, looked for news stories about a hit and run, and
researched how long alcohol stays in the body. All of that was
done before appellant contacted the police. “The gravamen of a
section 20001 offense . . . is not the initial injury of the victim, but
leaving the scene without presenting identification or rendering
aid.” (People v. Escobar (1991) 235 Cal. App. 3d 1504, 1509.)
It took no leap of logic for the jury to find that
appellant was conscious when he fled the accident scene, leaving
the victims trapped in a wrecked van.
Upper Four-Year Term on Count 1
Appellant claims the trial court abused its discretion
in imposing a four-year upper term on count 1 for hit and run
causing death. On review, we do not reweigh the aggravating
and mitigating sentence factors (People v. Scott (1994) 9 Cal. 4th
331, 355) but determine whether the four-year term is so
“arbitrary or capricious” that it “‘“exceeds the bounds of reason,
all of the circumstances being considered.”’ [Citations.]”
(People v. Welch (1993) 5 Cal. 4th 228, 234; People v. Trausch
(1995) 36 Cal. App. 4th 1239, 1247.) The trial court said “there is
a cloud” of alcohol abuse and DUIs “that hangs over this case.” It
was a concern. Appellant was a danger to others and did not
appreciate the gravity of committing a hit and run fatality while
on probation. The trial court believed that appellant was
drinking and fled the scene to thwart blood alcohol testing, and
that appellant got his family to lie for him. And there was more.
6
The probation report stated that appellant drove with his lights
off before hitting the van, and said nothing to the victims who
were trapped in the van and in extreme pain. The van steering
wheel was lodged in Jesus Rodriguez’s chest and stomach, and he
had a broken clavicle, a broken ankle, and a broken sternum and
ribs. Rodriguez’s wife, Maria, was semi-conscious and trapped in
the van for 30 minutes before she was extracted by firefighters.
The probation report noted that appellant had his family lie for
him, that he spent $123.43 at a bar/restaurant before the
collision, and that appellant asked a friend to “bring beers” over
to a BBQ a few days after appellant bailed out of jail. It was
appellant’s fourth DUI and appellant showed no remorse about a
hit-and-run fatality that devastated a family. Maria Rodriguez
died, leaving her husband (a 41-year marriage) and four children
and nine grandchildren. The four-year sentence was not an
abuse of discretion.
Count 2
Appellant argues that the sentence on count 2 should
be stayed pursuant to section 654 because counts 1 and 2 are
based on the same hit and run. The Attorney General correctly
argues that the conviction on count 2 must be stricken. There
can be only one conviction for leaving the scene of an accident
even if there are multiple victims. (People v. Newton (2007) 155
Cal. App. 4th 1000, 1002.) “[T]he conduct commanded by section
20001, to stop, identify, and assist, is only committed once”
(Newton. at p. 1003) and appellant cannot be convicted of more
than one violation of section 20001. (Newton, at p. 1005; see
People v. Calles (2012) 209 Cal. App. 4th 1200, 1217 [two section
20001 convictions stricken where hit and run traffic accident
7
injured three victims; “there can be only one conviction for
leaving the scene of an accident”].)
Disposition
The conviction on count 2 (violation of § 20001, subd.
(a)) is stricken and the judgment, as modified, is affirmed. (Pen.
Code, §1260.) The trial court is directed to prepare an amended
abstract of judgment reflecting the sentence modification and to
forward a certified copy to the Department of Corrections and
Rehabilitation.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P. J.
TANGEMAN, J.
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Derek D. Malan, Judge
Superior Court County of Ventura
______________________________
Susan S. Bauguess, under appointment by the Court
of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Paul M. Roadarmel, Jr., Michael R.
Johnsen, Supervising Deputy Attorneys General, for Plaintiff and
Respondent.