Filed 6/8/17
                CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                           DIVISION SIX


THE PEOPLE,                            2d Crim. No. B267280
                                     (Super. Ct. No. SA084351)
     Plaintiff and Respondent,         (Los Angeles County)

v.

NATHAN LOUIS CAMPBELL,

     Defendant and Appellant.



            Angry about a failed drug deal, Nathan Louis
Campbell drove his car onto the Venice Beach Boardwalk and
plowed into 10 separate groups of people in close succession. A
jury convicted him of one count of second degree murder (Pen.
Code, § 187, subd. (a))1; 17 counts of assault with a deadly
weapon (§ 245, subd. (a)(1)); 3 felony counts of leaving the scene
of an accident; and 7 misdemeanor counts of leaving the scene of
an accident (Veh. Code, § 20001, subd. (a)). The jury found true
allegations that he used a deadly weapon in the murder and
inflicted great bodily injury in three of the assaults. (§§ 12022,

        1 All
           statutory references are to the Penal Code unless
otherwise stated.
subd. (b)(1), 12022.7, subd. (a).) The trial court sentenced
Campbell to 15 years to life plus 27 years in state prison. It
stayed the sentence for all but one of the counts of leaving the
scene of an accident pursuant to section 654.
             We conclude (1) the prosecutor‟s reference to
Campbell‟s post-Miranda2 silence was a fair response to
Campbell‟s trial testimony that he cooperated fully with police,
and (2) Campbell was properly convicted of 10 counts of fleeing
the scene of an accident because there were 10 distinct accidents
after which he could have stopped and rendered aid but did not.
                          BACKGROUND
             Campbell drove to the Venice Beach Boardwalk,
where his friend tried to buy methamphetamine. The dealer was
gone a long time with the friend‟s money, and the friend went
looking for the dealer. Campbell became agitated. He said to a
bystander, “I‟m going to hit them with my fucking car if [the]
dude is not back,” and “point them out and I‟ll hit them with the
car.”
             After more time passed, Campbell got into his car
and accelerated onto the boardwalk, guiding the car through a
10-foot gap between barriers. He drove into an ATM machine,
pushing it into two people (count 19). He proceeded southwest
and drove into a woman (count 20) and her boyfriend (count 21).
He continued further into a group of vendor‟s stands on the west
side of the boardwalk, hitting three more people (count 22). He
turned back into the boardwalk and accelerated into two more
people near the Titanic Boutique (count 23). He proceeded south
and drove into two more people (count 24). He drove further
south and steered into two people near the Venice Suites Hotel

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


                                 2
(count 25). He drove into concession stands near the hotel and
then turned into two more people, killing one. He carried her
body on his hood for some distance without stopping (count 18).
He continued to the front of a Snapchat store where he ran into
another person and dragged him 20 feet without stopping (count
26). After passing the Snapchat store, he hit his final victim
(count 27). He then fled the boardwalk in his car.
              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?”
              At the police station, Campbell waived his Miranda
rights and answered an officer‟s questions. He was drunk, and
said he drank a half-pint of vodka after he hit people on the
boardwalk. He said he drank no alcohol beforehand. At trial, he
said he drank two gulps of vodka before he drove onto the
boardwalk, but said he was “okay” to drive.
              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




                                  3
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




                                4
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] would come talk to me again after I sobered up,
after I realized what happened.” The prosecutor asked, “But you
are saying at some point you decided to tell the detectives you
wanted an attorney and that is your right, and you could say
that, right?” Campbell answered, “Yes.” The prosecutor then
asked, “So you are saying they should have waited for you to
sober up so they [could] talk to you about what happened that
day?” Campbell answered, “No. That‟s not what I‟m saying.
What I‟m saying is that once everything started coming together
and I asked for—when I asked for an attorney, I had assumed
that someone would actually come talk to me again.”
             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.”




                                5
                            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 (Doyle); People v. Champion
(2005) 134 Cal.App.4th 1440, 1448 (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 [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 assurance contained in the
Miranda warnings that exercise of the right of silence will not be
penalized.” (People v. Coffman and Marlow (2004) 34 Cal.4th 1,
65.)
             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.) The right to
remain silent is a shield; it cannot be used as a sword to cut off




                                6
the prosecution‟s fair response to defense evidence or argument.
(People v. Austin (1994) 23 Cal.App.4th 1596, 1611-1612 (Austin),
disapproved on other grounds in People v. Palmer (2001) 24
Cal.4th 856, 861.)
             To establish a violation of due process under Doyle,
the defendant must show the prosecution inappropriately used
his post-Miranda silence for impeachment purposes with the trial
court‟s permission. (Champion, supra, 134 Cal.App.4th at p.
1448.) The trial court should grant a mistrial if it is apprised of
prejudice that it judges incurable by admonition or instruction.
(People v. Haskett (1982) 30 Cal.3d 841, 854.) It is “vested with
considerable discretion” to determine whether the incident is
incurably prejudicial. (Ibid.) It should grant a mistrial only
when a party‟s chance of receiving a fair trial has been
irreparably damaged. (People v. Ayala (2000) 23 Cal.4th 225, 282
(Ayala).) We review an order denying a motion for mistrial for
abuse of discretion. (Ibid.)
             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 (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




                                7
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, 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. Fair
response is also allowed when a defendant gives the impression
he did not have a fair chance to explain his innocence. (United
States v. Robinson (1988) 485 U.S. 25, 32; Champion, supra, 134
Cal.App.4th at pp. 1450-1451 [prosecutor fairly responded to
defendant‟s testimony that “no one gave him the opportunity to
give his side of the story,” by asking if he refused to give a
statement].)
              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.”




                                    8
        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 and render
reasonable assistance, among other things. (Veh. Code, §§ 20001,
20003.) Violations are punishable as misdemeanors or (if the
accident results in death or permanent, serious injury) as
felonies. (Veh. Code, § 20001, subd. (b)(1) & (2).) Intentional
collisions are “accidents” for purposes of Vehicle Code section
20001. (People v. Jiminez (1992) 11 Cal.App.4th 1611, 1626
(Jiminez), disapproved on other grounds in People v. Kobrin
(1995) 11 Cal.4th 416, 419.)
             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 (Wilkoff),
superseded by statute on other grounds as stated in People v.
Elder (2017) 11 Cal.App.5th 123, 139.) Thus, in Wilkoff, one
drunken lane-change resulting in death to one person and injury
to six others could support only one count of violating section 192
(manslaughter), one count of violating Vehicle Code section
23153, subdivision (a) (driving under the influence), and one
count of violating Vehicle Code section 23153, subdivision (b)
(driving with a blood alcohol of 0.08 percent or above). “[T]he
number of times the act is committed determines the number of
times the statute is violated.” (Wilkoff, at p. 349.)




                                 9
             The actus reus of Vehicle Code section 20001 is
fleeing from the scene of an injury accident. (People v. Martinez
(May 25, 2017, S219970) __ Cal.4th __ [2017 D.J.D.A.R. 4779,
4781].) 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.)
             This case is unlike People v. Calles (2012) 209
Cal.App.4th 1200, 1209, 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, 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.) 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.




                                10
              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. (Jimenez, supra,
11 Cal.App.4th at p. 1626 [a penal statute susceptible of more
than one meaning must be construed in the defendant‟s favor
unless the construction is unreasonable, absurd or contrary to
legislative intent].) The purpose of Vehicle Code section 20001 is
“to prevent the driver of a vehicle involved in an injury-causing
accident from leaving injured persons in distress and danger for
want of medical care and from attempting to avoid possible civil
or criminal liability for the accident by failing to identify oneself.”
(People v. Corners (1985) 176 Cal.App.3d 139, 148.) Each time
Campbell changed directions or proceeded to a new and separate
target he left behind the untended injured, completing the act
proscribed by Vehicle Code section 20001, subdivision (a).
              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.) 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, 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.




                                  11
             People v. Osuna (1984) 161 Cal.App.3d 429, 437
(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.) 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.
             CERTIFIED FOR PUBLICATION.



                                     TANGEMAN, J.
We concur:



             YEGAN, Acting P. J.



             PERREN, J.




                                12
                 Kathryn A. Solorzano, Judge

             Superior Court County of Los Angeles

                ______________________________


             Matthew D. Alger, under appointment by the Court
of Appeal, for Defendant and Appellant.

            Xavier Becerra, Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Lance E. Winters, Senior
Assistant Attorney General, Victoria B. Wilson, Supervising
Deputy Attorney General, Theresa A. Patterson, Deputy Attorney
General, for Plaintiff and Respondent.
