People v. Hugo Enrique Campos

1

THE PEOPLE, Plaintiff and Respondent, v. HUGO ENRIQUE CAMPOS, Defendant and Appellant.

A164118

California Court of Appeals, First District, Second Division

February 22, 2024

NOT TO BE PUBLISHED

(Contra Costa County Super Ct. No. 52100345)

Mayfield, J. ^[*]

Defendant Hugo Enrique Campos struck and killed a pedestrian while driving under the influence of alcohol. He appeals from a conviction of second degree murder on the ground of instructional error, and he asserts that enhancements under Penal Code section 12022.7^[1] must be stricken because they are unsupported by substantial evidence. We agree with the latter argument and strike the enhancements. As modified, we affirm the judgment.

BACKGROUND

I. Factual Background

A. Events Leading Up to the Collision

On July 4, 2020, Campos and his girlfriend Alexis P. attended a Fourth of July party at the home of Alexis's mother on Shore Road in Bay Point, California. Many people in the neighborhood were outside throughout the afternoon and evening cooking food and setting off fireworks in celebration of the Fourth of July.

Campos was sober when he arrived at the party. However, he left the house around 2:00 p.m. and did not return or answer his phone. Alexis P. and her friend drove around looking for him. When Campos finally returned around 6:00 p.m., he smelled of alcohol, was slurring his speech, fell against his girlfriend and into a fence, and yelled profanities at passing vehicles. None of the people present at the party saw Campos drinking; however, they assumed, based on his conduct, that he was intoxicated or "on something."

F.V. took Campos's car keys and told him that he should not be driving. She told him to "eat something," then had him lie down in her van which was parked nearby. Campos left the van after threatening to burn it down. He demanded that F.V. return his car keys but she refused. Campos told his girlfriend that he wanted to drive to his mother's house in Pittsburg. He became loud, angry and upset, and demanded that she return his keys. Alexis P. told whoever had Campos's keys not to give them to him because he might kill himself or someone else. Despite his own belief that Campos was not in a condition to safely drive, Anthony C. gave Campos his keys and told him to sleep it off in his car, as he had on previous occasions.

Campos sped off in his SUV on Lakeview Drive at 50 miles per hour, causing people to jump out of the way to avoid being hit. He passed the house on Shore Road more than once, speeding and driving erratically. Witnesses who were outside other residences in the neighborhood estimated he was driving 60 to 65 miles per hour.

B. The Collision and Immediate Aftermath

Raymond McDaniel and his wife were outside on Shore Road between 9:00 and 10:00 p.m. McDaniel was in the street setting off fireworks when a fast-moving dark SUV struck him without slowing or stopping.

David H. was outside on Shore Road when he saw a dark SUV drive by, swerving, at 60 to 80 miles per hour and then heard it hit something. He got into his vehicle to locate the SUV. He saw the SUV stopped near the intersection of Lakeview Drive and Shore Road with people surrounding it screaming and kicking the doors. Campos yelled, "I crashed, I crashed." People tried to remove Campos from the SUV, but he sped away.

Shortly after 10:00 p.m., while driving near Port Chicago Highway toward Pittsburg, T.T. noticed a small SUV with a damaged right front, driving "a little erratic." She thought the driver-who she later identified as Campos-was inebriated because he looked at her through his passenger window then fell over into the passenger seat. She called the California Highway Patrol (CHP) to report the incident.

C. The Investigation

CHP Officer Matthew McCants investigated the collision. He noted that Shore Road was a 32-foot-wide residential street without a posted speed limit, which meant that the speed limit was 25 miles per hour. He saw vehicle debris in the middle of the street near the collision site. Witnesses told the officer that McDaniel had been approximately 10 feet from the curb when he was struck. His body had traveled over 60 feet and landed on a parked vehicle.

Later that evening, another CHP officer located Campos at his mother's address in Pittsburg. Campos was standing near the open driver's door of the SUV holding the keys and his cell phone. McCants went to that location. There he saw that the right front section of Campos's SUV was damaged. McCants smelled alcohol on Campos and noticed that his eyes were red and watery. He administered field sobriety tests and a PAS breath test. Campos's breath samples were tested at 12:10 a.m. (0.119 per blood-alcohol content) and 12:13 a.m. (0.112 percent blood-alcohol content). McCants arrested Campos for driving under the influence.

Later at the CHP station, Campos was offered a breath or a blood test. He selected a breath test which was performed at 1:06 a.m.; the results were 0.085 on the first sample and 0.089 on the second. Campos elected to take a blood test after the breath test. His blood was drawn at 2:28 a.m. The result from the blood test was 0.067 blood alcohol content with a margin of error of plus or minus 0.0058 percent.

D. Expert Testimony

Criminalist Denise Gallagher testified that "Alcohol can affect the person's ability to safely operate a motor vehicle.... Most people are impaired by a 0.05 percent, but all people are impaired for the purpose of driving at 0.08 percent." She explained that the rate at which alcohol is eliminated from the body varies: the range of elimination is typically 0.010 to 0.025 percent per hour, with experienced drinkers "tend[ing] to eliminate a little bit faster." In response to hypothetical questions posed by the prosecutor, Gallagher opined based on the breath and blood test results that the individual's blood-alcohol level at 9:55 p.m. would have been 0.112 to 0.179 percent, depending on the elimination rate. When asked to assume the field sobriety test results, the breath test results, the blood test results, and that the individual was driving 60 to 70 miles per hour on a crowded residential street at 9:55 p.m., Gallagher opined that "this person [was] impaired for the purposes of driving."

A forensic pathologist performed an autopsy on McDaniel and described the injuries he sustained in the collision. The pathologist testified that McDaniel suffered a subarachnoid hemorrhage around the brain stem which "is often, by itself, a fatal injury." He opined that McDaniel would have been rendered immediately unconscious from the brain injury and most likely died within five minutes of impact.

E. Prior Incidents Involving Drinking and Driving

Campos pled no contest to driving under the influence in 2012. During the plea colloquy, the court gave a Watson^[2] advisement. It told Campos that "driving under the influence of alcohol or drugs, or both, is dangerous to human life. If you continue to drive while under the influence of alcohol or drugs, or both, and you kill someone, you can be charged with murder." When asked if he understood, Campos replied, "Yes."

In 2013, Campos was pulled over for speeding by a Vacaville police officer and admitted that he had been drinking. When the officer investigated his driving history, he learned that Campos was on probation for the 2012 DUI conviction and had been ordered not to drive with any measurable alcohol in his system. Campos's driver's license was also suspended. The officer cited Campos for a probation violation and for driving on a suspended license. (Veh. Code, § 14601.2.) On January 6, 2014, Campos was convicted of driving on a suspended license. The plea form he signed included a written Watson advisement.

In 2014, Campos attended DUI classes at the Dawn Center which addressed the negative effects of using alcohol and drugs. He also attended a "Victim Impact Panel" organized by Mothers Against Drunk Driving. Campos signed several written Watson advisements while participating in these driving under the influence programs.

Between 2008 and 2019, Campos completed eight applications at the Department of Motor Vehicles for a driver's license, identification card, or replacement identification card. Each application for a driver's license or identification card included a written Watson advisement which the applicant must review and sign. Campos's driver's license remained suspended on July 4, 2020.

II. Legal Proceedings

On January 20, 2021, the Contra Costa County District Attorney filed an amended information charging Campos with second degree murder (§ 187, subd. (a)) (count 1); driving under the influence of alcohol (DUI) causing injury (Veh. Code, § 23153, subd. (a)) with prior convictions (Veh. Code, §§ 23560, 23566) (count 2); driving with over 0.08 percent blood alcohol level causing injury (Veh. Code, § 23153, subd. (b)) with prior convictions (Veh. Code, §§ 23560, 23566) (count 3); failure to stop at the scene of an accident resulting in injury or death (Veh. Code, § 20001, subd. (b)(2)) (count 4); and misdemeanor driving a motor vehicle without a valid driver's license (Veh. Code, § 12500, subd. (a)) (count 5). The information alleged that Campos inflicted great bodily injury upon McDaniel causing him to become comatose as enhancements as to counts 2 and 3 (§ 12022.7, subd. (b)).

In 2021, the jury found Campos guilty on all counts and found the special allegations true. The trial court sentenced Campos to 15 years to life on count 1; the three-year upper term on count 2, consecutive to five years for the section 120227, subdivision (b) enhancement, stayed pursuant to section 654; the three-year upper term on count 3 consecutive to five years for the section 120227, subdivision (b)...