People v. Calhoun

20 Cal.Rptr.3d 537

123 Cal.App.4th 1031

The PEOPLE, Plaintiff and Respondent, v. Lawrence Lamont CALHOUN et al., Defendants and Appellants.

No. D042645.

Court of Appeal, Fourth District, Division 1.

November 2, 2004.

Rehearing Denied November 30, 2004.

Review Granted February 16, 2005.

Greg M. Kane, under appointment by the Court of Appeal, for Defendant and Appellant Lawrence Lamont Calhoun.

Anthony J. Dain, under appointment by the Court of Appeal, San Diego, for Defendant and Appellant George Kenneth Waller, Jr.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Douglas C.S. Lee, Deputy Attorneys General, for Plaintiff and Respondent.

McDONALD, J.

Defendant Lawrence Lamont Calhoun appeals a judgment after the jury found him guilty on two counts of vehicular manslaughter with gross negligence (Pen.Code, § 192, subd. (c)(1)) and found true the related allegations that he fled the scene of the crime after committing those offenses (Veh.Code, § 20001, subd. (c)).¹ Although Calhoun does not challenge his Penal Code section 192, subdivision (c)(1) convictions, he contends: (1) the trial court erred by denying his Penal Code section 995 motion to dismiss the section 20001, subdivision (c) allegations because they do not apply to persons who do not personally or directly commit the underlying offenses; (2) there is insufficient evidence to support the jury's true findings on the section 20001, subdivision (c) allegations; (3) section 20001, subdivision (c) is void for vagueness and violates his due process rights if it applies to persons who are vicariously liable for the underlying offenses; (4) the trial court erred in instructing on section 20001, subdivision (c); and (5) the trial court erred in assuming it did not have Penal Code section 1385 discretion to dismiss the section 20001, subdivision (c) allegations.

Codefendant George Kenneth Waller, Jr., appeals a judgment after the jury found him guilty on two counts of vehicular manslaughter with gross negligence (Pen. Code, § 192, subd. (c)(1)). Waller contends the trial court abused its discretion by imposing upper six-year terms for those offenses based on an aggravating circumstance that multiple victims were involved.

We requested, and have received from the parties, supplemental briefing on the effect, if any, of Blakely v. Washington (2004) 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (Blakely) on the sentences imposed on the defendants in this case. Waller's supplemental brief asserts Blakely requires that his upper six-year terms be vacated. Calhoun's supplemental brief concedes Blakely does not apply to his case. The People's supplemental brief asserts Waller waived any Blakely claim but, if not waived, Blakely does not apply to the trial court's imposition of the upper terms.

FACTUAL AND PROCEDURAL BACKGROUND

At about 7:00 p.m. on October 6, 2002, Calhoun and Waller were racing their cars side-by-side on Imperial Avenue in San Diego. Although the posted speed limit was 50 miles per hour, the two cars apparently were traveling faster than 70 miles per hour. After Waller's car passed Calhoun, it struck a vehicle driven by Shanna Jump, who was turning left on Imperial Avenue from the opposite direction Calhoun and Waller were driving. After the Waller-Jump collision, Calhoun made a U-turn, drove back to the scene of the accident, and then left the scene and drove home.

Jump and her passenger, Brian Hanson, were killed. Jump's other passenger, Michael Hanson, survived but suffered great bodily injury. Waller's passenger, Jasen Moore, survived but suffered great bodily injury.

An amended consolidated information charged Waller and Calhoun each with two counts of second degree murder (Pen. Code, § 187, subd. (a)), two counts of vehicular manslaughter with gross negligence (Pen.Code, § 192, subd. (c)(1)), and two counts of reckless driving causing bodily injury (§ 23104, subd. (a)). The information also alleged that after committing the gross vehicular manslaughter offenses Calhoun fled the scene of the crime (§ 20001, subd. (c)).² After a joint trial, the jury found Waller and Calhoun each not guilty on the two counts of second degree murder, guilty on the two counts of vehicular manslaughter with gross negligence, and guilty on the two counts of reckless driving causing bodily injury.

The jury also found true the allegations that after committing the gross vehicular manslaughter offenses Calhoun fled the scene of the crime.³ The court sentenced Waller to the upper term of six years for the first count of vehicular manslaughter with gross negligence, a concurrent upper six-year term for the second count of vehicular manslaughter with gross negligence, and concurrent terms of 180 days for each of the two counts of reckless driving causing bodily injury, for a total term of six years. It sentenced Calhoun to the middle term of four years for the first count of vehicular manslaughter with gross negligence with a consecutive five-year enhancement for fleeing the scene of the crime, a concurrent four-year term for the second count of vehicular manslaughter with gross negligence, and concurrent terms of 180 days for each of the two counts of reckless driving causing bodily injury, for a total term of nine years.⁴

Waller and Calhoun each filed timely notices of appeal.

DISCUSSION

I

CALHOUN'S APPEAL

Section 20001, Subdivision (c) Allegations

Calhoun contends the trial court erred by denying his Penal Code section 995 motion to dismiss the section 20001, subdivision (c) allegations because, he argues that enhancement does not apply to persons who do not personally or directly commit the underlying offenses.

A

Before trial Calhoun filed a Penal Code section 995 motion to dismiss the two section 20001, subdivision (c) allegations that he fled the scene of the crime after the gross vehicular manslaughter offenses. At his sentencing, Calhoun argued the trial evidence showed his guilt on the two counts of vehicular manslaughter with gross negligence was derivative and imputed to him for aiding and abetting Waller's commission of those offenses. By imposing the section 20001, subdivision (c) enhancements on Calhoun, the trial court implicitly denied Calhoun's Penal Code section 995 motion.⁵

B

Section 20001, subdivision (c) provides:

"A person who flees the scene of the crime after committing a violation of Section 191.5 of, paragraph (1) or (3) of subdivision (c) of Section 192 of, or subdivision (a) or (c) of Section 192.5 of, the Penal Code, upon conviction of any of those sections, in addition and consecutive to the punishment prescribed, shall be punished by an additional term of imprisonment of five years in the state prison. This additional term shall not be imposed unless the allegation is charged in the accusatory pleading and admitted by the defendant or found to be true by the trier of fact. The court shall not strike a finding that brings a person within the provisions of this subdivision or an allegation made pursuant to this subdivision." (Italics added.)

Under Penal Code section 192, manslaughter is defined as the unlawful killing of a human being without malice and consists of three types, including vehicular manslaughter, which includes:

"(c)(1) Except as provided in [Penal Code] Section 191.5, driving a vehicle in the commission of an unlawful act, not amounting to felony, and with gross negligence; or driving a vehicle in the commission of a lawful act which might produce death, in an unlawful manner, and with gross negligence. [¶] ... [¶] (3) Driving a vehicle in violation of Section 23140, 23152, or 23153 of the Vehicle Code and in the commission of an unlawful act, not amounting to felony, but without gross negligence; or driving a vehicle in violation of Section 23140, 23152, or 23153 of the Vehicle Code and in the commission of a lawful act which might produce death, in an unlawful manner, but without gross negligence."⁶ (Pen.Code, § 192, subd. (c), italics added.)

In closing argument, the prosecutor argued Calhoun was guilty of the vehicular manslaughter with gross negligence charges because Waller's commission of those offenses was a natural and probable consequence of Waller's commission of an unlawful speed contest that Calhoun aided and abetted.⁷ The trial court instructed the jury on the principles of aiding and abetting the commission of a crime, including a modified version of CALJIC No. 3.02:

"[A]s to defendant Calhoun only, you are instructed as follows:

"One who aids and abets another in the commission of a crime or crimes is not only guilty of that crime or those crimes, but is also guilty of any other crime committed by the principal which is a natural and probable consequence of the crimes originally aided and abetted.

"So, in order to find defendant Lawrence Lamont Calhoun guilty of the [two vehicular manslaughter with gross negligence and other charged offenses] with respect to aiding and abetting, you must be satisfied beyond a reasonable doubt that:

"1. The crime of speed contest, in violation Vehicle Code section 23109[, subdivision] (a) was committed;

"2. That the defendant aided and abetted that crime;

"3. That a co-principal in that crime committed the [two vehicular manslaughter with gross negligence and other charged offenses]; and

"That those [charged] crimes ... were a natural and probable consequence of the commission of the crime of speed contest."

C

Calhoun asserts section 20001, subdivision (c) does not apply to persons who do not personally or directly commit one of the listed underlying offenses, here vehicular manslaughter with gross negligence. He argues that section 20001, subdivision (c)'s text and legislative history and analogous case law support an interpretation that the enhancement applies only to direct perpetrators of an underlying offense and not to those convicted of...