Filed 8/24/20 P. v. Lopez CA2/6
     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                         SECOND APPELLATE DISTRICT

                                         DIVISION SIX


THE PEOPLE,                                                   2d Crim. No. B294244
                                                           (Super. Ct. No. 16F-03599)
     Plaintiff and Respondent,                              (San Luis Obispo County)

v.

GINO LOPEZ,

     Defendant and Appellant.


            Gino Lopez appeals from the judgment after a jury
convicted him of gross vehicular manslaughter while intoxicated
(Pen. Code, § 191.5, subd. (a); count 2), driving under the
influence (DUI) of alcohol and causing injury (Veh. Code,1 §
23153, subd. (a); count 3), driving with a 0.08 percent or more
blood alcohol content (BAC) and causing injury (id. at subd. (b);
count 4), leaving the scene of an accident (§ 20001, subd. (a);
count 5), and driving with a suspended or revoked license (§


         1
       Further unspecified statutory references are to the
Vehicle Code.
14601.1, subd. (a); count 6).2 The jury found true the allegations
that Lopez fled the scene of the crime (§ 20001, subd. (a); count 2
enhancement); and that he caused great bodily injury and injury
to more than one person (§§ 12022.7, subd. (a), 23558; counts 3
and 4 enhancements). The trial court sentenced him to 13 years
eight months in state prison (consecutive sentences of six years
for count 2 and five years for the section 20001, subdivision (c)
enhancement; eight months for count 3 and one year for the
Penal Code section 12022.7, subdivision (a) enhancement and
four months for the section 23558 enhancement; and eight
months for count 5; and concurrent sentences of eight months for
count 4 and one year for both enhancements).
             Lopez contends (1) his conviction for count 2 must be
reversed because his admission was taken in violation of
Miranda3 and (2) the sentence for count 5 must be stayed
pursuant to Penal Code section 654. We modify the judgment to
stay the sentence for count 5, but otherwise affirm.
            FACTS AND PROCEDURAL HISTORY
            In April 2016, although Lopez’s driver’s license was
suspended from a prior DUI conviction, he decided to drive from
Wasco to the coast with three other people. Lopez first drove to
Henry Aguilar’s house, and together they went to a store and
bought beer. They then drove to another house to pick up B.A.
and E.R. They all drank beer during the drive.
            Lopez stopped in Paso Robles, and they purchased
more beer. At this point, Lopez had consumed about four beers.

      2 Count   1 was dismissed after the jury was unable to reach
a verdict.

      3   Miranda v. Arizona (1966) 384 U.S. 436.


                                  2
During the drive from Wasco to Paso Robles, Lopez was driving
“really fast.” At one point, Aguilar looked at the speedometer,
which read, “120 mph.” Lopez was also “switching lanes” and
“swerving” through traffic.
              After stopping in Paso Robles, Lopez continued to
drink beer while driving. Aguilar and B.A. testified that Lopez
continued driving fast. Aguilar estimated that Lopez was driving
“over a hundred” miles per hour. Lopez continued switching
lanes and passing other cars on the road. Aguilar told Lopez to
“slow down,” that he was “going too fast,” and that they were
“going to crash.” Lopez responded, “shut the fuck up,” and “don’t
tell me how to fucking drive.”
              Lopez came up on a Honda traveling in the same
direction in the middle lane at about 65 miles per hour. There
was a car to the left of the Honda, a semi-truck traveling about
35 miles per hour ahead and to the right of it, and another car
directly in front of the Honda. In his rearview mirror, the driver
of the Honda saw Lopez approaching the truck “at a rapid speed.”
The Honda driver observed that there did not “appear to be any
room for [Lopez] to get between” his car and the truck, but Lopez
“swerved” in front of his car. Because the lane switch “was very
rapid,” Lopez “overcorrect[ed]” his steering, and his car “swerved”
beneath the trailer of the truck. Lopez’s car emerged from
beneath the truck and hit a Volvo that was in the center lane.
              Before the collision, the driver and the passenger of
the Volvo noticed Lopez approaching “at a high rate of speed” of
about 85 miles per hour. They commented: “That guy’s going too
fast,” and “I hope he makes it around that truck.” Less than one
minute later, Lopez hit the side of the Volvo. Upon impact with




                                 3
the Volvo, E.R. was ejected from Lopez’s car and died. B.A. was
injured.
             Six other witnesses observed Lopez’s driving before
the collision. All of them testified Lopez was driving fast in the
“slow lane.” Witnesses estimated he was driving between 85 to
100 miles per hour. Several witnesses also noticed that Lopez
was “weaving in and out of traffic” and switching lanes “real
quick.”
             A volunteer EMT and firefighter attended to E.R. and
B.A. He heard Lopez or Aguilar say “we got to get out of here.”
Two witnesses saw Lopez and Aguilar pulling beer containers
from the car and throwing them down the hill. Several other
witnesses called 911 after observing Lopez and Aguilar “running
away” from the accident site.
             A highway patrol officer arrived minutes after the
accident. Witnesses told him they saw Lopez and Aguilar
running south. The officer saw Lopez and Aguilar from a
distance, drove to them, and began talking to Lopez.
             Officer Gerardo Trejo arrived on scene and
interviewed Lopez. Trejo smelled alcohol on Lopez’s breath and
noticed that his eyes were red and watery. Lopez told Trejo that
he was driving “80 to 70 miles” per hour. Trejo noticed a cut on
Lopez’s forehead. Lopez was taken to the hospital.
             Officer Stephanie Buck contacted Lopez at the
emergency room. Buck read Lopez his Miranda rights verbatim
off a card before interviewing him. When asked if Lopez
understood the Miranda admonitions, Buck answered that she
did not “recall off the top of [her] head,” but “had he not agreed,
[she] wouldn’t have proceeded further.” When asked if she
recalled “giving him the [Miranda] admonition,” Buck answered




                                4
that she did not “recall that directly.” But, she remembered
telling Officer Scott Peterson, who was taking over the interview,
that she had advised Lopez of his Miranda rights. Lopez told
Peterson he was driving 90 miles per hour.
             Lopez objected to the admission of his statement on
the grounds that there was insufficient evidence that he was
advised of his Miranda rights. He argued that Buck’s testimony
that she told Peterson that she advised Lopez was inadmissible
hearsay and was insufficient to show he was properly advised.
The court overruled the objection, finding that a “new Miranda
warning [was] not necessary before [the] subsequent
interrogation” by Peterson, and that there was sufficient evidence
to prove that Buck advised Lopez of his Miranda rights.
                           DISCUSSION
                              Miranda
             Lopez contends his conviction for gross vehicular
manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a))
must be reversed because the trial court erred when it admitted
his statement that he was driving 90 miles per hour. Lopez
argues the prosecution did not prove he voluntarily and
knowingly waived his Miranda rights. The Attorney General
contends Lopez forfeited the argument because he did not object
to the Miranda violations on those grounds at trial.
             We agree Lopez forfeited his claim. “[U]nless a
defendant asserts in the trial court a specific ground for
suppression of [their] statements to police under Miranda, that
ground is forfeited on appeal, even if the defendant asserted
other arguments under the same decision. (People v. Polk (2010)
190 Cal.App.4th 1183, 1194 [appellant forfeited claim that she
was not given proper Miranda warnings because her sole claim of




                                5
coercion was “simply not sufficient to preserve the . . . issue . . .
because they did not call to the attention of the trial court the
substantive inadequacy of the warnings”].)
               Lopez did not preserve the claim he makes here
because the only issue raised at trial was whether Lopez was
properly advised, not whether his waiver was valid. We will not
consider claims of error “‘“where an objection could have been,
but was not presented to the lower court.”’” (People v. Saunders
(1993) 5 Cal.4th 580, 589-590.)
               In any event, any error was harmless beyond a
reasonable doubt. (Chapman v. California (1967) 386 U.S. 18,
21-22; People v. Samayoa (1997) 15 Cal.4th 795, 831.) Here, the
jury was instructed that to convict Lopez for gross vehicular
manslaughter while intoxicated, the prosecution must prove,
among other things, that Lopez committed an “infraction with
gross negligence.” The prosecution alleged Lopez violated section
22107 and 22349. The jury was instructed that pursuant to
section 22107, “no person shall turn a vehicle from a direct course
. . . until such movement can be made with reasonable safety.”
They were instructed that pursuant to section 22349, “no person
may drive a vehicle upon a highway at a speed greater than 65
miles per hour.”
               Even without Lopez’s statement, there was
overwhelming evidence that he was driving at a high rate of
speed and making illegal lane changes in violation of sections
22107 and 22349, and that his driving amounted to gross
negligence. Aguilar and B.A. testified that Lopez was driving
“really fast” and “swerving” through traffic during the entire car
ride. Aguilar testified the speedometer read 120 miles per hour
at one point, and estimated Lopez was driving over 100 miles per




                                  6
hour before the collision. Nine other witnesses also testified that
Lopez was driving too fast. Several witnesses testified he was
driving between 85 to 100 miles per hour in the “slow lane” of
traffic. Witnesses also testified that Lopez was changing lanes in
a dangerous manner. The driver of the Honda observed there
was no room between his car and the truck to safely change
lanes, but Lopez did so and lost control of his vehicle. Moreover,
Lopez admitted to Trejo that he was driving “80 to 70” miles per
hour. Under these facts, any error admitting Lopez statement
was harmless beyond a reasonable doubt.
                      Penal Code Section 654
             Lopez argues that the eight-month term for count 5
(fleeing the scene of the crime, § 20001, subd. (a)) must be stayed
pursuant to Penal Code section 654. We agree.
             Penal Code section 654 prohibits multiple
punishments for a single act. Whether a course of criminal
conduct is divisible and therefore gives rise to more than one act
within the meaning of Penal Code section 654 depends on “the
intent and objective of the actor.” (Neal v. State of
California (1960) 55 Cal.2d 11, 19.) If multiple offenses were
“incident to one objective,” the defendant may be punished for
only one. (Ibid.)
             The trial court should have stayed the sentence for
count 5. “[T]here can be only one conviction for leaving the scene
of an accident,” even where an accident results in the injury of
more than one person. (People v. Calles (2012) 209 Cal.App.4th
1200, 1217 (Calles); People v. Newton (2007) 155 Cal.App.4th
1000, 1002.) Lopez’s act of leaving the scene of the accident was
not a separate act with a separate objective “when compared to
[the enhancement for fleeing the scene of the crime] alleged in




                                 7
count [2]. There was only one act of leaving the scene of an
accident.” (Calles, at p. 1217.)
             Penal Code section 654, subdivision (a) provides that
when an act is punishable in different ways by different
provisions of law it shall be punished “under the provision that
provides for the longest potential term of imprisonment.” The
sentence for the enhancement on count 2 provides a longer
potential term of imprisonment than the sentence for count 5.
Thus, the sentence for count 5 must be stayed. (Calles, supra,
209 Cal.App.4th at p. 1217.)
                           DISPOSITION
             The judgment is modified to stay the eight-month
sentence for count 5, leaving the scene of an accident (Veh. Code,
§ 20001, subd. (a)), pursuant to Penal Code section 654. The
clerk of the superior court is directed to amend the abstract of
judgment and to forward a certified copy to the Department of
Corrections and Rehabilitation. In all other respects, the
judgment is affirmed.
             NOT TO BE PUBLISHED.




                                    TANGEMAN, J.
We concur:



             GILBERT, P. J.



             YEGAN, J.




                                8
                  Matthew G. Guerrero, Judge

           Superior Court County of San Luis Obispo

                ______________________________

           David Ross Greifinger, under appointment by the
Court of Appeal, for Defendant and Appellant.

            Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Assistant Attorney General, Paul M. Roadarmel, Jr., and David
F. Glassman, Deputy Attorneys General, for Plaintiff and
Respondent.
