People v. Bettasso

49 Cal.App.5th 1050

263 Cal.Rptr.3d 563

The PEOPLE, Plaintiff and Respondent,

v.Michael George BETTASSO, Defendant and Appellant.

E072173

Court of Appeal, Fourth District, Division 2, California.

Filed June 5, 2020

Certified for Partial Publication.^*

Joshua L. Siegel, Santa Monica, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Attorney General, Julie L. Garland, Assistant Attorney General, Daniel Rogers, Sharon L. Rhodes and Lise S. Jacobson, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

MENETREZ, J.

A jury convicted Michael Bettasso of driving under the influence (DUI) of alcohol causing injury, hit and run driving causing death, driving with a suspended license, and second degree implied malice murder. ( Pen. Code,¹ §§ 187, subd. (a), 189, subd. (b) ; Veh. Code, §§ 14601.2, 20001, subd. (a), 23153, subd. (a).) The jury also found true a great bodily injury enhancement associated with the DUI count. (§§ 12022.7, subd. (a), 1192.7, subd. (c)(8).) Bettasso was sentenced to a total term of 19 years to life.

On appeal, Bettasso challenges the sufficiency of the evidence supporting the second degree murder conviction and also contends that the trial court prejudicially erred by failing to instruct the injury on vehicular manslaughter as a lesser included offense of murder. In the published portion of our opinion, we hold that vehicular manslaughter is not a lesser included offense of murder. ( People v. Wolfe (2018) 20 Cal.App.5th 673, 685-686, 229 Cal.Rptr.3d 414 ( Wolfe ).) In the unpublished portion, we reject Bettasso's substantial evidence challenge, and we accordingly affirm the judgment.

BACKGROUND

A. Bettasso's Workday Before the Collision

On July 2, 2016, Bettasso was working as a bartender along with Julie M., another bartender with over 30 years' experience. They both worked from 1:00 p.m. to 7:00 p.m. Early in the shift, Julie made herself and Bettasso each a mixed drink consisting of vodka and cranberry juice, which they both drank. Over the remainder of the shift, Julie estimated that Bettasso drank an additional three drinks. Julie did not know whether Bettasso's remaining drinks contained alcohol. She did not see him pour them. She also explained that bartenders sometimes pretend to drink alcohol to appease customers. Bartenders sometimes pour themselves a nonalcoholic drink.

Two surveillance video recordings (without audio) totaling approximately 55 minutes taken from different angles inside of the bar during Bettasso's shift were played for the jury.² Bettasso finished the drink mixed by Julie at 1:21 p.m. During the remainder of his shift, Bettasso drank an additional six mixed drinks, including four between 1:21 p.m. and 3:05 p.m., one at 4:16 p.m., and one at 6:06 p.m. Bettasso also drank five total shots at 3:49 p.m., 4:53 p.m., 5:39 p.m., 5:55 p.m., and 6:34 p.m. For two of those shots (at 4:53 p.m. and 5:39 p.m.), Bettasso poured himself a shot from the same bottle that he poured a shot for a customer and drank the shots with those customers.

By the end of Julie's and Bettasso's shift, Julie thought that Bettasso was intoxicated. Bettasso's speech was slurred. He also appeared to be stressed and distracted. Julie thought that Bettasso should not drive, and she expressed that concern to him. She told him that he looked stressed, so he should stay with mutual friends locally. Bettasso responded, " ‘I'm fine.’ " Julie also shared her concern about Bettasso driving with T.R., another coworker.

T.R. arrived at the bar at 6:45 p.m. that night. He almost immediately interacted with Bettasso and was concerned that Bettasso seemed "inebriated." T.R. saw Bettasso stumble, tripping over either his own feet or a chair that Bettasso was moving. T.R. had known Bettasso since childhood and drank with him many times. T.R. told Bettasso that he seemed inebriated and told Bettasso that he should not drive. At approximately 7:00 p.m., T.R. told Bettasso, " ‘You are an asshole if you decide to drive.’ " Bettasso responded, " ‘I'm fine.’ "

B. Post-Collision Witnesses

At approximately 7:45 or 8:00 p.m., a husband and wife were driving southbound on North Indian Canyon Road. The husband, who was driving, noticed a small grey or silver Nissan on the side of the road with some damage to the hood and extensive impact damage to an unspecified window. It was still light outside. The husband slowed down to approximately 20 miles per hour and saw a person whom he later identified as Bettasso walking around outside of the car looking panicked and distraught. Because of the impact to the window, the husband thought that something might have been ejected from the car, but he looked around and did not see anything. Fifty or 60 yards ahead of the Nissan on the other side of the road there was an old camper truck with its hood open. The husband and wife proceeded to dinner. The parties stipulated that the wife would testify similarly to her husband about what she saw that night and that she identified Bettasso in a photographic lineup as the person whom they saw.

About 10 minutes later, at 8:10 p.m., an Uber driver driving along North Indian Canyon Road noticed a white pickup truck with a camper and a small car off the road some distance ahead. It was light outside. After the Uber driver passed the small car, he noticed in the rear view mirror that the car was damaged, so the driver turned around. The windshield appeared "caved in." The Uber driver asked the person standing near the driver's door if he needed help. Bettasso said that someone was on the way, so the Uber driver continued driving his passengers to their destination. Because of the damage to the car, the Uber driver thought that the car had collided with a bicycle or a person. The Uber driver returned to the location when he was alone and took several pictures of the damaged car. He contacted law enforcement the next day.

C. Bettasso's Post-Collision In-Person Encounters and Towing of the Vehicle

At around 9:00 p.m., Bettasso called his stepdaughter and told her that he had been drinking and that he had hit something with his car, possibly a coyote or a dog. Her biological father picked up Bettasso. The stepdaughter saw Bettasso about one hour later, and she later told law enforcement that he appeared drunk and "freaked out."³

Shortly after midnight, Bettasso called his mother, told her that he had been in a car accident, and asked her to take him to his car. She picked him up and drove him there. Bettasso told her that he thought he had hit a large dog or an animal. She looked around the car, underneath it, and in the field with a flashlight but did not see anything. She noticed the white truck on the other side of the road. She called for a tow truck. Later in the evening on the day after the collision, Bettasso's mother spoke with a police officer and told him that she smelled alcohol on Bettasso's breath and that she thought her son should not have been driving the night before.⁴

When the tow truck driver arrived, Bettasso told the driver that his mom had been driving and hit a coyote. The tow truck driver did not speak with Bettasso's mother. The driver did not see anything around the car or notice any blood on Bettasso's car. The driver loaded Bettasso's car onto the flatbed, and Bettasso rode in the cab of the truck with the driver for approximately 30 minutes. The driver smelled alcohol on Bettasso's breath and noticed that Bettasso was slurring slightly, so he thought that Bettasso was intoxicated.

D. Discovery of the Body and Subsequent Investigation

The next morning two bicyclists travelling on North Indian Canyon Road came upon a body lying on the side of the road and called 911. The victim had died from multiple blunt force injuries that were consistent with being hit by a car.

A law enforcement officer investigated the area around where the body was discovered and concluded that a vehicle had veered off the road and struck the victim. The street had an asphalt shoulder followed by a dirt shoulder, a raised dirt berm, and the desert. The body was located in the dirt shoulder between the asphalt and the dirt berm. The bicyclists thought that the body was approximately 20 feet from the side of the road.

Some distance in front of the pickup truck that had the hood open, the officer found one of the victim's shoes, as well as furrow marks in the dirt shoulder. The victim's other shoe also was found near the body and not on the victim's foot. There also were broken plastic pieces on the raised dirt berm, which appeared to be from a car's blinker light. One of the plastic pieces bore the word "Nissan."

The investigating officer believed that the body was found 100 feet from the initial point of impact. From dirt furrow marks and tire pressure marks, the investigator concluded that the car returned to the asphalt shoulder and came to an "abrupt stop" approximately 120 feet past the body and approximately 400 feet past where the car initially veered off the road. The investigator opined that the driver was traveling at a normal rate of speed. The speed limit was 55 miles per hour.

Later that night, an officer went to Bettasso's residence and found Bettasso's grey Nissan Sentra in the driveway. The car was damaged on the passenger side on the front bumper, the hood, the windshield, and the side mirror. There was "hair and/or blood with some matter attached to the windshield."

E. Bettasso's Post-Collision Text Messages

Law enforcement obtained copies of Bettasso's cell phone records. On the night of the collision at approximately 10 minutes before 11:00 p.m., Bettasso texted someone and asked that person to call him " ‘ASAP.’ " Thirty minutes later, that person texted, " ‘I'm going to get it’ " and bring it back to his or her house. Minutes before midnight Bettasso asked how it was " ‘going.’ " At 12:25 a.m., the person texted, " ‘You got to go back there, Bro. What if it...