People v. Nuno

Filed 8/13/18
CERTIFIED FOR PARTIAL PUBLICATION *
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D072152
Plaintiff and Respondent,
v. (Super. Ct. No. SCS284138)
RUDOLFO NUNO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Yvonne E. Campos, Judge. Affirmed in part; reversed in part and remanded for
resentencing.
Janice R. Mazur, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General,
Eric A. Swenson, Meredith White, and Genevieve Herbert, Deputy Attorneys General,
for Plaintiff and Respondent.
* Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for
publication with the exception of part 2.
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.
1 Further statutory references are to the Penal Code unless otherwise indicated.
2
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.
3
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
4
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 (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.) "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
5
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
(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.)
2. Sufficiency of the Evidence
Nuno argues there is insufficient evidence to support his conviction under Vehicle
Code section 20001, subdivision (a). It is undisputed that Nuno stopped and called 911
shortly after leaving the scene of the collision. Because the jury acquitted him of assault
and battery, he argues it necessarily believed his account that he fled the scene fearing he
was under attack. Accordingly, he claims there is insufficient evidence to support the
jury's finding that he did not stop "as soon as reasonably possible under the
circumstances." (See CALCRIM No. 2140 ["The duty to immediately stop means that
the driver must stop his . . . vehicle as soon as reasonably possible under the
circumstances."]; 2 Witkin and Epstein, Cal. Criminal Law (4th ed. 2012) Crimes
Against Public Peace and Welfare, § 316. p. 1064 ["To avoid absurdity, the courts have
6
held that the statute merely requires the driver to stop as promptly as possible under the
circumstances, at a place where it is safe to do so."]; People v. Flores (1996) 51
Cal.App.4th 1199, 1204 [defendant had to comply with statutory requirements "as soon
as reasonably possible" after regaining consciousness following the collision].)
On review for substantial evidence, " 'we review the whole record in the light most
favorable to the judgment to determine whether it discloses substantial evidence—that is,
evidence that is reasonable, credible, and of solid value—from which a reasonable trier of
fact could find the defendant guilty beyond a reasonable doubt.' " (People v. Cravens
(2012) 53 Cal.4th 500, 507.) The conviction will be upheld " 'unless it appears "that
upon no hypothesis whatever is there sufficient substantial evidence to support [the
conviction]." ' " (Id. at p. 508.) As the reviewing court, "[w]e neither reweigh the
evidence nor reevaluate the credibility of witnesses." (People v. Jennings (2010) 50
Cal.4th 616, 638.) "If the circumstances reasonably justify the findings made by the trier
of fact, reversal of the judgment is not warranted simply because the circumstances might
also reasonably be reconciled with a contrary finding." (Id. at p. 639.)
Although the evidence could support a contrary finding, there is sufficient
evidence from which a reasonable jury could find that Nuno failed to stop as soon as
reasonably possible. Nuno relies heavily on his testimony that he hit J.C. by accident
while under attack, fled fearing for his life, and called for help as promptly as he safely
could. Intent was the only disputed element as to counts 1 and 2. The jury was instructed
it could not find Nuno guilty "if he acted or failed to act without the intent required for
that crime, but acted instead accidentally." By acquitting him of these counts, the jury
7
implicitly found that Nuno hit J.C. by accident, or it was not convinced beyond a
reasonable doubt that he hit him "willfully."
But the verdict does not necessarily imply the jury accepted Nuno's version of
events in its entirety. No other witness at trial corroborated Nuno's account that J.C.'s
employees circled his car, tools in hand, or that J.C. pried open his car door as he tried to
reverse. The jury could have disbelieved that Nuno was under threat; or it might have
found that Nuno's subjective belief that he was under threat was unreasonable and would
not have led a reasonable person to flee. Alternatively, the jury could have accepted
Nuno's account but believed he could have stopped sooner. By the time Nuno called for
help, a bystander had dialed 911, and an ambulance was on its way. Nuno admitted
stopping at the gate of the tow yard outside J.C.'s auto shop and looking back for a
moment; he was far enough from the scene of the collision that he could not see the
extent of J.C.'s injuries. Nevertheless, he did not stop there and drove an additional—
albeit short—distance before dialing 911.
Whether Nuno stopped as soon as reasonably possible is "necessarily [ ] a question
of fact to be determined by the jury." (People v. Steele (1929) 100 Cal.App. 639, 646.)
Sufficient evidence supports the jury's finding that Nuno failed to do so.
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.
8
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
9
the case more egregious than the typical hit-and-run with injury based on the nature of
J.C.'s injuries and Nuno's prior criminal record.
The court expressed concern for the safety of the community at large, as Nuno
"didn't extricate himself, and ends up in a situation where he's in his car and someone's
damaged to the extent of broken bones, . . ." It found Nuno had "prior run-ins with the
law" and had placed himself in a situation where he appeared to have taken matters in his
own hands. As a result, it stated it would be "denying the probation that [Nuno] had
hoped for."
"Generally speaking, the trial court must state reasons for granting or denying
probation." (People v. Lesnick (1987) 189 Cal.App.3d 637, 644; Cal. Rules of Court, rule
4.406(b).) 2 But it need not provide reasons for declining to find a case "unusual" so as to
rebut any presumptive ineligibility for probation. (Lesnick, at p. 644.) And it does not
apply the criteria in rule 4.414 to determine whether to grant probation unless it first finds
any statutory presumption against probation is rebutted. (Rule 4.413(b); People v.
Superior Court (Dorsey) (1996) 50 Cal.App.4th 1216, 1229.)
Here, the court found Nuno presumptively ineligible for probation and provided
some reasons for denying probation. As we read the record, the court did not find the
case to be "unusual" to rebut the presumption of probation ineligibility. Contrary to the
People's argument, there is no suggestion it made any finding that it would have denied
probation had Nuno been presumptively eligible for it. (Cf. People v. Bradley (2012) 208
2 Further rule references are to the California Rules of Court.
10
Cal.App.4th 64, 90 [where the trial court "indicated that even if [the defendant] were
presumptively eligible for probation, it would not have granted probation to him," the
appellate court could simply assess whether the denial of probation was an abuse of
discretion].)
b. Standard of review
"The sentencing court has broad discretion to determine whether an eligible
defendant is suitable for probation . . . ." (People v. Welch (1993) 5 Cal.4th 228, 233.)
There is likewise broad discretion to determine whether a given case is "unusual" and
entitles the defendant to probation in the interests of justice. (People v. Superior Court
(Du) (1992) 5 Cal.App.4th 822, 831.) To establish abuse, the defendant bears the burden
on appeal to show that the denial of probation was, under the circumstances, arbitrary,
capricious, or exceeding the bounds of reason. (Ibid.)
Nevertheless, "all exercises of legal discretion must be grounded in reasoned
judgment and guided by legal principles and policies appropriate to the particular matter
at issue." (People v. Russel (1968) 69 Cal.2d 187, 195.) Where a court "bases its
determination to deny probation in significant part upon an erroneous impression of the
defendant's legal status, fundamental fairness requires that the defendant be afforded a
new hearing and 'an informed, intelligent and just decision' on the basis of the facts."
(People v. Ruiz (1975) 14 Cal.3d 163, 168.) We independently evaluate whether the trial
court properly found Nuno presumptively ineligible for probation. (See People v.
Manriquez (1991) 235 Cal.App.3d 1614, 1616−1620 (Manriquez) [considering de novo
whether presumptive ineligibility required personal carrying of a deadly weapon]; People
11
v. Alvarez (2002) 95 Cal.App.4th 403, 408 [considering de novo whether presumptive
ineligibility required personal use of a deadly weapon].) Only if it did do we need to
consider whether the court should have found the case "unusual" to rebut the presumption
"in the interests of justice." (§ 1203, subd. (e).)
c. Analysis
At the outset, the court erred to the extent it found Nuno presumptively ineligible
for probation based on his prior record. Nuno admitted a prior felony conviction in 2004
for transportation of controlled substances, and he had a prior misdemeanor adjudication
in 2007 for a loud noise complaint. As Nuno states, "there is no statutory presumption of
ineligibility based on a single prior felony conviction." Section 1203, subdivision (e)(4)
renders a defendant presumptively ineligible for being "previously convicted twice in this
state of a felony or in any other place of a public offense which, if committed in this state
would have been punishable as a felony" (italics added). The People present no argument
to the contrary.
The key question in this case is whether Nuno could be found presumptively
ineligible for probation under section 1203, subdivision (e)(2). That statute provides:
"Except in unusual cases where the interests of justice would best be
served if the person is granted probation, probation shall not be
granted to . . . [a]ny 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 or she has been convicted."
Thus, for Nuno to be presumptively ineligible for probation under this statute, he must
have used (or attempted to use) "a deadly weapon upon a human being," and that use
must have been "in connection with the perpetration" of his hit-and-run offense.
12
Citing Martinez, supra, 2 Cal.5th 1093, Nuno contends the nexus element is
lacking. We find his argument persuasive. 3 Nuno was convicted of a hit-and-run
causing injury. The act made criminal is not the collision but the subsequent flight.
(Id. at p. 1102.) Although a collision is a condition precedent giving rise to "a duty to
stop, provide identification, and render aid," it is not an element of the crime. (Id. at
pp. 1102−1103.) Thus, for Nuno to be presumptively ineligible for probation under
section 1203, subdivision (e)(2), he must have used (or attempted to use) a deadly
weapon "in connection with" his flight from the scene of the collision.
Martinez is instructive. At issue was whether a hit-and-run victim could obtain
restitution for injuries sustained in the collision. The statute authorized direct victim
restitution for economic losses incurred "as a result of the commission of a crime."
(§ 1202.4, subd. (a)(1).) The court interpreted this language to limit victim restitution to
"losses incurred as a result of the defendant's unlawful flight from the scene of the
accident . . . but not losses incurred solely as a result [of] the accident itself." (Martinez,
supra, 2 Cal.5th at p. 1103.) It reasoned that the crime was not the collision but the
defendant's failure to "stop, provide identification, and render aid." (Id. at p. 1102.) 4
Applying similar reasoning, another court held that the three-year enhancement for
3 Nuno does not (and could not) argue that his acquittal of assault with a deadly
weapon precluded a finding at sentencing that he used a deadly weapon in connection
with his crime. (See People v. Towne (2008) 44 Cal.4th 63, 85−87.)
4 The court suggested there might be a different result if the defendant committed a
crime, such as reckless driving or driving under the influence, that caused the collision
and resulted in the victim's injuries. (Martinez, supra, 2 Cal.5th at p. 1107, fn. 3.)
13
personal infliction of great bodily injury in the commission of a felony (§ 12022.7, subd.
(a)) did not apply to a hit-and-run defendant because there was no basis to find personal
infliction of injury from the defendant's flight. (Valdez, supra, 189 Cal.App.4th at p. 87.)
Accordingly, the question before us is whether Nuno used (or attempted to use) a
deadly weapon in connection with his flight from the scene of the collision. That
question hinges on whether the car was a "deadly weapon" at the time of his flight.
A "deadly weapon" is " ' "any object, instrument, or weapon which is used in such
a manner as to be capable of producing and likely to produce, death or great bodily
injury." [Citation.] Some few objects . . . have been held to be deadly weapons as a
matter of law; the ordinary use for which they are designed establishes their character as
such. [Citation.] Other objects, while not deadly per se, may be used, under certain
circumstances, in a manner likely to produce death or great bodily injury. In determining
whether an object not inherently deadly or dangerous is used as such, the trier of fact may
consider the nature of the object, the manner in which it is used, and all other facts
relevant to the issue.' " (People v. Perez (2018) 4 Cal.5th 1055, 1065 (Perez), citing
People v. Aguilar (1997) 16 Cal.4th 1023, 1028–1029.) A vehicle falls within the second
category and may qualify as a deadly weapon depending on how it is used. (Perez, at
p. 1065 [collecting cases].)
In Perez, supra, 4 Cal.5th 1055, a defendant was convicted of assault with a
deadly weapon (§ 245, subd. (a)(1)). The court considered whether he was ineligible for
resentencing under the Three Strikes Reform Act of 2012 because he was armed with a
deadly weapon during the commission of his crime. (§ 1170.12, subd. (c)(2)(C)(iii).) It
14
concluded he was ineligible. By driving a truck and dragging the victim along the
ground, knowing his arm was stuck inside, the defendant used the truck as a deadly
weapon. (Perez, at p. 1067.) The court rejected the claim that the defendant did not
intend to use his vehicle as a weapon, finding it sufficient he "willfully used the object in
a manner that he or she knew would probably and directly result in physical force against
another." (Id. at p. 1066.)
Those facts stand in stark contrast to what the jury found here. The jury acquitted
Nuno of assault with a deadly weapon (count 1), implicitly finding that he either hit J.C.
by accident, or not finding sufficient evidence he did so willfully. It convicted him solely
of fleeing the scene of the collision. There is no evidence Nuno was using his vehicle as
a deadly weapon in committing that crime. (See, e.g., Valdez, supra, 189 Cal.App.4th at
p. 87 [enhancement did not apply because defendant did not personally inflict great
bodily injury in fleeing the scene].) A different construction would render every
defendant convicted of a hit-and-run presumptively ineligible for probation under section
1203, subdivision (e)(2). The defendant would be using the car as a deadly weapon by
virtue of having driven the vehicle after the accident, even in cases where the victim was
at fault for the collision.
We are not persuaded by the People's claim that Martinez is limited to the
restitution context. Our case indeed involves a different statute, but we rely on Martinez
solely to define the conduct criminalized in a hit-and-run with injury. (Martinez, supra,
2 Cal.5th at pp. 1102–1103.) We are also not persuaded by the contention that the "in
connection with" language in section 1203, subdivision (e)(2) is broader than the "as a
15
result of" language in the restitution statute Martinez construed. Both statutes require a
nexus to the crime, and Martinez makes clear that the crime lies solely in the flight.
In short, because the court sentenced Nuno under the erroneous impression he was
presumptively ineligible for probation, remand is necessary for resentencing. (People v.
Manriquez, supra, 235 Cal.App.3d at p. 1620; People v. Alvarez, supra, 95 Cal.App.4th
at p. 409.) On remand, the court must decide whether to grant or deny probation,
considering the factors in rule 4.414 and any additional criteria pursuant to rule 4.408(a).
It should indicate its reasons for any denial of probation, including any additional criteria
considered. (Rules 4.406(b)(2) & 4.408(a).) 5
DISPOSITION
The matter is remanded for resentencing. In all other respects, the judgment is
affirmed.
DATO, J.
WE CONCUR:
NARES, Acting P. J.
GUERRERO, J.
5 In light of our ruling, we need not address Nuno's remaining arguments that
(1) this is an unusual case rebutting any presumptive ineligibility for probation; (2) the
criteria in rule 4.414 support a grant of probation; and, in the alternative, (3) imposition
of the middle term was an abuse of discretion.
16