Filed 11/9/07 P. v. Banegas CA2/2
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
Plaintiff and Respondent,
CARLOS MANUEL BANEGAS,
Defendant and Appellant.
(Los Angeles County
Super. Ct. No. VA084675)
APPEAL from a judgment of the Superior Court of Los Angeles County. Larry S. Knupp, Judge. Affirmed.
Thomas T. Ono, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
Carlos Manuel Banegas1 appeals from the judgment entered upon his convictions by jury of second-degree murder (Pen. Code, § 187, subd. (a), count 1), felony hit-and-run (Veh. Code, § 20001, subd. (a) count 2),2 driving under the influence causing injury (§ 23153, subd. (a), count 3), driving under the influence of more than 0.08 percent alcohol (§ 23153, subd. (b), count 4), and gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a), count 5). In connection with counts 3 through 5, appellant admitted suffering two prior drunk driving convictions within the meaning of section 23566, subdivisions (b) and (c) and Penal Code section 191.5, subdivision (d). The trial court sentenced him to the upper term of four years on his conviction in count 2 plus a consecutive term of 15 years to life on his conviction in count 1. Imposition of sentence on counts 3 through 5 was stayed pursuant to section 654. Appellant contends that (1) there is insufficient evidence to support his convictions of second degree murder, hit-and-run and gross vehicular manslaughter, (2) the trial court gave erroneous causation instructions to the jury, thereby depriving him of due process and a fair trial, and (3) the upper term sentence on his felony hit-and-run conviction violates the Sixth and Fourteenth Amendments to the United States Constitution as set forth in Cunningham v. California (2007) 549 U.S.__ [127 S.Ct. 856] (Cunningham), compelling reduction of the sentence to the midterm.
The judgment is affirmed.
We review the evidence in accordance with the usual rules on appeal. (People v. Autry (1995) 37 Cal.App.4th 351, 358.) On July 12, 2004, at approximately 11:00 p.m., Sean Tackett was driving south in the number one (fast) lane of the 710 freeway, near Firestone Boulevard, at 70 to 75 miles per hour. He saw a white Chevy Camaro in the number four (slow) lane pass him, with its lights on, traveling 90 to 95 miles per hour. A Honda Civic traveling 70 miles per hour, four car lengths ahead of the Camaro, placed its turn signal on and merged in front of the Camaro. The Camaro did not slow down. When it was a foot or two behind the Civic, it swerved to the left to avoid hitting it, nearly hit two other cars and crashed into the center divider. It came to rest 80 percent in the fast lane and 20 percent on the shoulder. Tackett pulled over and stopped. The Camaro’s headlights were then off and its hazard lights did not come on.
Twenty to 30 seconds later, Tackett saw a motorcycle in the fast lane strike the driver’s side, rear panel of the Camaro and the rider, wearing a helmet, “fly through the air and hit the pavement.” Five to 10 minutes later, Tackett saw appellant exit the Camaro and walk past the motorcyclist toward the freeway exit. Tackett detected a strong smell of alcohol as appellant walked by him.
Appellant walked south on the freeway toward Gregory Boagni, an off-duty Los Angeles County sheriff’s deputy, who saw appellant hit the center divider, stopped his car and called 911. Boagni testified that he saw appellant walk south, past the downed motorcyclist, without stopping. Appellant approached Boagni a minute or so after the Camaro had hit the divider. Boagni smelled alcohol on his breadth. Appellant walked past him and, when asked, said he did not need medical attention and was going home. Boagni showed appellant his badge and told him to stay. Appellant complied and was handcuffed. He did not offer his license number, registration or assistance. Boagni turned him over to California Highway Patrol (CHP) officers when they arrived.
CHP Officer Horacio McComb responded to the scene. He observed the Camaro with its front end “smashed,” in the number one lane, parallel to the center median, facing north. A motorcycle was in the number two lane. The motorcyclist, Jack Bush, was being attended to by others, so Officer McComb attended to appellant, who identified himself as Carlos Banegas. While it was apparent that English was not appellant’s native language, Officer McComb spoke to him in English, and appellant appeared to understand. Appellant was unsteady on his feet, his breadth smelled of alcohol, his eyes were red and watery, and his speech was slow and slurred. He told Officer McComb that he had consumed six Bud Lights, between 5:00 p.m. and 10:00 p.m., and showed him a photocopy of his driver’s license.
Officer McComb administered several field sobriety tests to appellant, who failed two of them and could not perform two others, claiming he had been shot in the ankle years earlier. Officer McComb also administered two preliminary alcohol screening tests (PAS) which revealed that appellant had a blood alcohol level of .106 and .105 percent. Approximately an hour and 20 minutes after the initial radio call, appellant underwent a blood alcohol test which reflected a blood alcohol level of 0.08 percent. The officer concluded appellant was driving under the influence and arrested him. Unaware that the motorcycle had hit the Camaro, the officer cited appellant for driving under the influence and driving with a blood-alcohol level above 0.08 percent, but not for driving under the influence causing injury. His report stated that the cause of the accident was “other than driver.”
Officer McComb spoke with Bush the night of the accident. Bush was coherent, and the officer did not expect him to die. But the parties stipulated that “four days after the accident on July 16 . . . [he] died as a result of death from severe head injuries.” This was the only evidence of Bush’s physical condition.
Officer Levi Miller investigated the case. He found the Camaro’s shifter in the reverse position and, while the hazard lights on the Camaro were operative, the emergency activation button was in the off position. He concluded that the front tire of the motorcycle struck the driver’s side of the Camaro. There was no evidence the Camaro was hit by any other vehicle. Officer Miller did not try to start the Camaro, although he knew appellant claimed he tried to move it but could not. He found that Bush’s helmet was cracked down the middle. Officer Miller testified that speeding, failing to turn on one’s hazard lights after an accident, tailgating and making an unsafe lane change are Vehicle Code violations.
A criminalist from the Sheriff’s Department testified that a person of appellant’s size with a blood alcohol level of 0.08 percent is impaired to safely operate a car.
On August 17, 2004, appellant was arrested for another incident of driving under the influence. On that occasion, he identified himself as Oscar Espinosa. After this arrest, Officer Miller, who had been unable to locate appellant, did so and conducted an audio-recorded interview with him, where appellant again identified himself as Oscar Espinosa. Appellant said that he never had a driver’s license. He acknowledged having a drinking problem and knowing that drunk driving is dangerous and kills people. He could not recall how many prior drunk driving arrests he had had.
Appellant described the collision, stating that he had consumed a 12-pack of beer between 7:00 p.m. and 11:00 p.m. He was driving in the number three lane when a trailer cut him off, and he lost control of his vehicle. As other cars were hitting each other, he turned left and hit the wall. He tried to move the car to the side, but it would not start. He did not turn on the emergency lights because a motorcycle crashed into the side of his car, and he was scared for the person lying there. Appellant said that he believed the accident would not have occurred if he had not been drinking. He said he tried to get help for the motorcyclist, but an African-American police officer on the scene told him that the motorcyclist was fine, did not want to help, and arrested him.
Appellant also said that his real name was Lorenzo or Loreto Lopez or Lorenzo German, but that he used Carlos Banegas and Banegas’s driver’s license in the accident “to avoid problems.” He used the name Oscar Espinosa when arrested on August 17 because the name Carlos Banegas was “burned by the accident.” Appellant was recently arrested in Ventura for failing to attend court-ordered alcohol abuse classes. He claimed he did not have enough money for the classes, but that he had completed such a class in 1996. He was also ordered to, but apparently did not, attend alcohol abuse classes after arrests in 2000, 2002, and 2004.
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