People v. Campbell

Video surveillance captured most of the collisions. Witnesses testified that Campbell accelerated and changed directions in order to hit people. A witness who watched from a hotel balcony said the car was aimed "where the people were, not where there was an open space." Witnesses said Campbell seemed to be in control of the car and his face looked focused. He did not honk or wave people out of his way.

After Campbell hit his last victim someone on a bike tried to flag him down and people yelled for him to stop, but he drove away. A few hours later, Campbell turned himself into the Santa Monica Police Department and told officers "I'm the one you are looking for," and "I hit all those people." He asked them "how many people were hurt and how many children?"

After further questioning along these lines, Campbell moved for a mistrial which the court denied. The court granted the prosecutor's request to give the jury a limiting instruction over a defense objection.

Defense counsel argued in closing that Campbell's cooperation showed "he did not have a complete disregard for what happened." He argued Campbell "surrendered to the police," "spoke to the police willingly on different occasions," "spoke on four different occasions to officers," "did not brag to police officers or detectives about what he had done," and "[i]f [Campbell] was a sociopath, if he was all about himself, if he was selfish, he could have said nothing at all to the police."

DISCUSSION

Mistrial Motion ( Doyle )

The trial court reasonably concluded the prosecutor's questions about Campbell's post- Miranda silence were a fair response to his assertions that he cooperated with police. ( Doyle v. Ohio (1976) 426 U.S. 610 , 611, 96 S.Ct. 2240 , 49 L.Ed.2d 91 ( Doyle ); People v. Champion (2005) 134 Cal.App.4th 1440 , 1448, 37 Cal.Rptr.3d 122 ( Champion ).) Evidence of cooperation was a cornerstone of Campbell's defense; he used it to create the impression he had no consciousness of guilt when he was questioned and therefore must not have acted deliberately, maliciously, or with knowledge his act would result in the application of force to anyone. (§§ 187, subd. (a), 189, 245, subd. (a)(1).)

The right to a fair trial guaranteed by federal due process is violated when a prosecutor impeaches a defendant's exculpatory testimony with evidence of his post- Miranda silence. ( Doyle , supra , 426 U.S. at pp. 614, 619, 96 S.Ct. 2240 [convictions reversed where prosecutor impeached defendants' testimony that they were framed in a marijuana transaction by asking them why they did not give that explanation when they were arrested].) It is fundamentally unfair to use post- Miranda silence against a defendant "in view of the implicit

The use of Campbell's post- Miranda silence was a fair response to defense evidence or argument because Campbell portrayed himself as truly forthcoming with the police. When a defendant creates the impression at trial that he fully cooperated with police and answered any questions they asked, the prosecutor may fairly comment on his post- Miranda silence. ( People v. Delgado (2010) 181 Cal.App.4th 839 , 853, 104 Cal.Rptr.3d 495 ( Delgado ).) In Delgado , for example, the defendant claimed "full cooperation" with police and testified that he " '[a]nswered any questions [the police] wanted [him] to answer' and answered '[e]very question that [he] could answer. [He] wasn't holding anything back.' " ( Ibid . ) The court held the prosecutor fairly responded by asking whether "there was a certain point where" the defendant was "no longer willing to answer [an officer's] questions." ( Ibid . )

Similarly, in Austin , supra , 23 Cal.App.4th 1596 , 1611-1612, 28 Cal.Rptr.2d 885 , when defense counsel asked an officer whether he gave the defendant a chance to explain a spontaneous statement, the prosecutor could fairly ask whether the defendant refused the officer's post- Miranda request to make a statement.

Multiple convictions for violating a statute are appropriate only where the actus reus prohibited by the statute (the gravamen of the offense) is committed more than once. ( Wilkoff v. Superior Court (1985) 38 Cal.3d 345 , 349, 211 Cal.Rptr. 742 , 696 P.2d 134 ( Wilkoff ), superseded by statute on other grounds as stated in People v. Elder (2017) 11 Cal.App.5th 123 , 139, 217 Cal.Rptr.3d 493 .) Thus, in Wilkoff , one drunken lane-change resulting in

Campbell told the officer at the police station that he thought the car was in reverse and he just panicked. He said he honked and waved his hands to warn people. He gave the same account at trial. Video evidence and witness statements contradict that claim.

Campbell gave similar explanations to two officers who drove him to another station that evening, and to a sergeant who questioned him when he arrived. He told the officers where to find his car. Campbell testified at trial that the car was in good operating order; there were no problems with the brakes or the steering. A mechanical inspection confirmed this.

When homicide detectives approached Campbell at about 2:00 a.m. after a blood draw, he refused to answer any more questions and invoked his right to silence.

At trial, Campbell said that he cooperated with law enforcement officers and answered their questions. He did not reveal that he refused to answer the homicide detectives' questions. He said that he volunteered to give a blood sample. During cross-examination of law enforcement witnesses, defense counsel emphasized Campbell's cooperation with the police after he turned himself in.

On cross-examination, the prosecutor asked Campbell if he really "volunteer [ed]" the blood sample. Campbell acknowledged the officers had a warrant. The prosecutor then asked, "And you refused to talk to those police officers anymore?" The court sustained a defense objection and then heard argument outside the jury's presence. It decided the question was a proper response to Campbell's emphasis on cooperation.

But the prosecutor continued to a different area. He asked Campbell if he ever told officers that he drank before he drove onto the boardwalk, as he told the jury. Campbell responded, "After I asked for an attorney none of you ever asked to interview me again ever." The prosecutor asked, "Well, you are saying after you asked for an attorney law enforcement officers did not ask you the right questions?" Campbell answered, "They never asked me any questions." The court overruled a defense objection, and the prosecutor continued, "Well, how are they going to ask you questions if you have told them I want an attorney?" Campbell answered, "Well, I mean, I figured [they]

But due process is not violated when the prosecutor's reference to post- Miranda silence is "a fair response to [a] defendant's claim or a fair comment on the evidence." ( Champion , supra , 134 Cal.App.4th at p. 1448, 37 Cal.Rptr.3d 122 .) The right to remain silent is a shield; it cannot be used as a sword to cut off the prosecution's fair response to defense evidence or argument. ( People v. Austin (1994) 23 Cal.App.4th 1596 , 1611-1612, 28 Cal.Rptr.2d 885 ( Austin ), disapproved on other grounds in People v. Palmer (2001) 24 Cal.4th 856 , 861, 103 Cal.Rptr.2d 13 , 15 P.3d 234 .)

To establish a violation of due process under Doyle , the defendant must show the prosecution inappropriately used his post- Miranda silence for impeachment

Campbell concedes he "testified he had been cooperative with the police and given them information." But he contends this case is unlike Champion and Austin because he did not testify he cooperated "fully" or answered all questions. He points out that the jury knew he had an opportunity to tell at least three officers his side of the story, and he admitted he was not fully forthcoming when he testified he did not previously tell officers he drank vodka before the incident.

But Campbell's testimony created the impression of full cooperation when he said he turned himself in, answered the questions of five officers, and "to the best of [his] ability ... tried to explain" what happened. And he suggested he did not have a fair chance to explain his side of the story when he said "[n]one of you ever asked to interview me again ever."

Multiple Counts of Leaving the Scene of an Accident

Campbell contends that the evidence supports only one count of leaving the scene of an accident, because he never stopped his car between collisions. We disagree.

Vehicle Code section 20001, subdivision (a) requires a person involved in an injury causing accident to immediately stop the vehicle at the scene. He must identify himself

The actus reus of Vehicle Code section 20001 is fleeing from the scene of an injury accident. ( People v. Martinez (2017) 2 Cal.5th 1093 , 1097, 218 Cal.Rptr.3d 140 , 394 P.3d 1066 .) Although a violation of Vehicle Code section 20001 is commonly referred to as hit-and-run, the act made criminal under the statute is not the hitting but the running. ( Ibid . )

The jury found Campbell failed to "immediately stop [or render aid or provide information] at the scene of [an] accident" 10 times. Its findings are supported by evidence that Campbell caused 10 collisions while driving, turning and aiming at separate groups of people on the boardwalk and that after each collision, he had the opportunity to stop and render aid, but he instead committed a new volitional act and deliberately struck another person or group. We will not reweigh the evidence. ( People v. Albillar (2010) 51 Cal.4th 47 , 60, 119 Cal.Rptr.3d 415 , 244 P.3d 1062 .)

This case is unlike People v. Calles (2012) 209 Cal.App.4th 1200 , 1209, 147 Cal.Rptr.3d 673 , in which there could be only one conviction for leaving the scene of a single collision with multiple victims. The parties agreed there was only one accident: the defendant hit a single group of pedestrians who were walking together on the sidewalk. ( Ibid . )

This case is also unlike People v. Newton (2007) 155 Cal.App.4th 1000 , 66 Cal.Rptr.3d 422 , in which one act caused a chain reaction collision. There, the defendant collided with a car, pushing that car into a third car. ( Id . at p. 1002, 66 Cal.Rptr.3d 422 .) There could be only one conviction for leaving the scene, even though four people were injured. Again, there was no dispute that there was a single accident for purposes of Vehicle Code section 20001, subdivision (a). ( Ibid . ) The issue was whether having multiple victims would support multiple counts.

Campbell invokes the rule of lenity to urge that the series of collisions was a single accident for purposes of Vehicle Code section 20001, subdivision (a). But his construction is not reasonable or consistent with legislative intent. ( Jim i nez , supra , 11 Cal.App.4th at p. 1626, 15 Cal.Rptr.2d 268 [a penal statute susceptible of more than one meaning must be construed

The decision under section 654 to stay Campbell's sentence on nine counts does not undermine his multiple convictions. Section 654 protects against "multiple punishment, not multiple convictions." ( People v. Correa (2012) 54 Cal.4th 331 , 336, 142 Cal.Rptr.3d 546 , 278 P.3d 809 .) The trial court's finding that the 10 counts of hit-and-run were part of "an indivisible course of conduct with a single objective, which was to get out of there," precludes multiple punishment, but it does not preclude multiple convictions. Campbell is like the defendant in People v. Johnson (2007) 150 Cal.App.4th 1467 , 1477, 59 Cal.Rptr.3d 405 , who committed three acts of violence against his spouse in close succession during a single course of conduct; he could be convicted of three counts of corporal injury but punished only once.

People v. Osuna (1984) 161 Cal.App.3d 429 , 437, 207 Cal.Rptr. 641 ( Osuna ), does not hold otherwise. Osuna holds that a single act cannot support convictions under separate statutes when one statutory violation is included in the other. ( Id . at p. 436, 207 Cal.Rptr. 641 .) But that issue is not presented here. Osuna distinguished its facts from cases like ours in which the defendant commits two or more distinct acts. ( Ibid . )

DISPOSITION

The judgment is affirmed.

We concur:

YEGAN, Acting P.J.

PERREN, J.