Filed 8/13/18
                     CERTIFIED FOR PARTIAL PUBLICATION *


                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                     DIVISION ONE

                                STATE OF CALIFORNIA



THE PEOPLE,                                        D072152

        Plaintiff and Respondent,

        v.                                         (Super. Ct. No. SCS284138)

RUDOLFO NUNO,

        Defendant and Appellant.


        APPEAL from a judgment of the Superior Court of San Diego County,

Yvonne E. Campos, Judge. Affirmed in part; reversed in part and remanded for

resentencing.

        Janice R. Mazur, under appointment by the Court of Appeal, for Defendant and

Appellant.

        Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General,

Eric A. Swenson, Meredith White, and Genevieve Herbert, Deputy Attorneys General,

for Plaintiff and Respondent.



*      Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for
publication with the exception of part 2.
       Rudolfo Nuno hit a person with his car, causing serious injuries. He drove a few

blocks away and called 911 to report the incident. Charged with assault with a deadly

weapon (the car) (Pen. Code § 245, subd. (a)(1)), 1 battery with serious bodily injury

(§ 243, subd. (d)), making a criminal threat (§ 422), and felony hit-and-run (Veh. Code,

§ 20001, subd. (a)), the jury convicted him only of hit-and-run and acquitted him of the

remaining charges. The court sentenced him to a middle term of two years after finding

him presumptively ineligible for probation under section 1203, subdivision (e)(2) as a

person "who used or attempted to use a deadly weapon upon a human being in

connection with the perpetration of the crime of which he . . . has been convicted."

       Nuno argues insufficient evidence supports his hit-and-run conviction because he

called for assistance soon after the incident. He also claims the court erred at sentencing

in finding him presumptively ineligible for probation and not finding this an "unusual

case[]" entitling him to probation "in the interests of justice." (§ 1203, subd. (e).) As we

explain, there is sufficient evidence to support his conviction. Nevertheless, remand is

necessary for resentencing because the court erroneously believed Nuno to be

presumptively ineligible for probation.




1      Further statutory references are to the Penal Code unless otherwise indicated.
                                             2
                   FACTUAL AND PROCEDURAL BACKGROUND

       J.C. owns an auto shop in San Diego. In late 2015, Nuno's truck was in the shop

for repairs. Unhappy with the workmanship, Nuno went to J.C.'s office and accused J.C.

of cheating him. J.C. replied that Nuno's truck had old parts. The two men left the

office, and Nuno got into his car to leave. At some point they exchanged words; Nuno

admitted calling J.C. a "fucking rata" (Spanish for "thief") after J.C. started "cussing

[him] out."

       As Nuno started to back up, his car hit J.C., fracturing his right leg and causing a

large abrasion on his left knee. Bystanders called 911. Nuno left the scene, drove for

two minutes, or about 75 feet, and called 911 to report the collision. He sounded frantic

in the call, stating he had run a person over while reversing his car in fear of his life. An

officer from the San Diego Police Department arrived shortly thereafter and drove with

Nuno to the scene of the collision.

       The San Diego County District Attorney filed a four-count information charging

Nuno with assault with a deadly weapon (count 1), battery with serious bodily injury

(count 2), making a criminal threat (count 3), and felony hit-and-run causing injury

(count 4).

       Nuno agreed his car struck J.C. but claimed it was an accident. The only dispute

at trial as to counts 1 and 2 was Nuno's intent. Testifying for the prosecution, J.C. stated

Nuno had tried twice to run him over and succeeded on his second try. He said Nuno had

threatened him by saying he knew people who could harm his family. Bystanders

described Nuno driving over J.C.'s leg and leaving the scene.

                                              3
       Nuno testified in his own defense. He described being in fear of an imminent

attack as he tried to leave the shop. He said J.C. tried to open his car door as tool-

wielding employees approached and started hitting the vehicle. Nuno claimed he struck

J.C. by accident and stopped at the earliest opportunity he safely could. He denied ever

threatening J.C. A recording of Nuno's 911 call was played for the jury. Other defense

witnesses testified that J.C. had done shoddy repair work on Nuno's truck and had a

reputation of dishonest dealings.

       The court instructed the jury on each of the charged crimes. (CALCRIM Nos. 875,

925, 1300, 2140, 3145, and 3160.) It instructed on the affirmative defense of legal

necessity as to the hit-and-run and directed the jury that Nuno could not be found guilty

of assault or battery as charged in counts 1 or 2 if it found his conduct accidental.

(CALCRIM Nos. 3403, 3404.) The jury convicted Nuno of felony hit-and-run (Veh.

Code, § 20001, subd. (a), count 4) but acquitted him of the remaining charges. Nuno

filed a motion for a new trial, arguing the evidence was insufficient to support the guilty

verdict based on the acquittals for assault and battery in counts 1 and 2. The court denied

his motion.

       At the sentencing hearing, the court found Nuno presumptively ineligible for

probation as indicated in the probation report. It sentenced him to a middle term of

2 years with a total of 77 days of conduct and custody credit.

                                       DISCUSSION

       On appeal, Nuno challenges the sufficiency of the evidence to support his hit-and-

run conviction and argues the court erred in finding him presumptively ineligible for

                                              4
probation for using a deadly weapon upon a human being (§ 1203, subd. (e)(2)). We

reject the first contention but accept the second. As we explain, Nuno was convicted

based on his flight from the scene of the collision, and a deadly weapon was not used

upon a human being in connection with that offense.

1.     Overview of Vehicle Code Section 20001, Subdivision (a)

       Nuno was convicted of violating Vehicle Code section 20001, subdivision (a),

which provides that "[t]he driver of a vehicle involved in an accident resulting in injury to

a person, other than himself or herself, or in the death of a person shall immediately stop

the vehicle at the scene of the accident and shall fulfill the requirements of Sections

20003 and 20004." "Vehicle Code sections 20003 and 20004, in turn, require the driver

to stop and provide identification and render aid to the victim, as well as to report the

accident to authorities if there is no police officer present. Failure to comply with these

requirements is a criminal offense. (Veh. Code, § 20001, subd. (b)(1) & (2).)" (People v.

Martinez (2017) 2 Cal.5th 1093, 1102 (Martinez).)

       Martinez explains that "although the Vehicle Code section 20001(a) offense is

commonly referred to as a 'hit and run,' the term is something of a misnomer; the offense

is 'more accurately described as fleeing the scene of an injury accident.' " (Martinez,

supra, 2 Cal.5th at p. 1102.) "That is to say, ' "the act made criminal" ' under the statute

' "is not the 'hitting' but the 'running.' " ' " (Ibid.) " ' "The legislative purpose of sections

20001 and 20003 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



                                                5
from attempting to avoid possible civil or criminal liability for the accident by failing to

identify oneself." ' " (Ibid.)

       The duty to stop and assist " 'is imposed upon drivers whether or not they are

responsible for the accident itself. ' " (People v. Valdez (2010) 189 Cal.App.4th 82, 87

(Valdez).) " '[T]he occurrence of an injury accident is a condition precedent' to the

imposition of a duty to stop, provide identification, and render aid—'but [it] is not an

element of the crime' in the sense that it constitutes part of the conduct forbidden by the

statute. [Citation.] Nor is any degree of fault required for conviction; a defendant who

flees the scene of an injury accident has committed a crime even if the accident was

solely the result of the victim's own negligence." (Martinez, supra, 2 Cal.5th at

pp. 1102−1103.)

2.     Sufficiency of the Evidence

       Nuno argues there is insufficient evidence to support his conviction under Vehicle

Code section 20001, subdivision (a). It is undisputed that Nuno stopped and called 911

shortly after leaving the scene of the collision. Because the jury acquitted him of assault

and battery, he argues it necessarily believed his account that he fled the scene fearing he

was under attack. Accordingly, he claims there is insufficient evidence to support the

jury's finding that he did not stop "as soon as reasonably possible under the

circumstances." (See CALCRIM No. 2140 ["The duty to immediately stop means that

the driver must stop his . . . vehicle as soon as reasonably possible under the

circumstances."]; 2 Witkin and Epstein, Cal. Criminal Law (4th ed. 2012) Crimes

Against Public Peace and Welfare, § 316. p. 1064 ["To avoid absurdity, the courts have

                                              6
held that the statute merely requires the driver to stop as promptly as possible under the

circumstances, at a place where it is safe to do so."]; People v. Flores (1996) 51

Cal.App.4th 1199, 1204 [defendant had to comply with statutory requirements "as soon

as reasonably possible" after regaining consciousness following the collision].)

       On review for substantial evidence, " 'we review the whole record in the light most

favorable to the judgment to determine whether it discloses substantial evidence—that is,

evidence that is reasonable, credible, and of solid value—from which a reasonable trier of

fact could find the defendant guilty beyond a reasonable doubt.' " (People v. Cravens

(2012) 53 Cal.4th 500, 507.) The conviction will be upheld " 'unless it appears "that

upon no hypothesis whatever is there sufficient substantial evidence to support [the

conviction]." ' " (Id. at p. 508.) As the reviewing court, "[w]e neither reweigh the

evidence nor reevaluate the credibility of witnesses." (People v. Jennings (2010) 50

Cal.4th 616, 638.) "If the circumstances reasonably justify the findings made by the trier

of fact, reversal of the judgment is not warranted simply because the circumstances might

also reasonably be reconciled with a contrary finding." (Id. at p. 639.)

       Although the evidence could support a contrary finding, there is sufficient

evidence from which a reasonable jury could find that Nuno failed to stop as soon as

reasonably possible. Nuno relies heavily on his testimony that he hit J.C. by accident

while under attack, fled fearing for his life, and called for help as promptly as he safely

could. Intent was the only disputed element as to counts 1 and 2. The jury was instructed

it could not find Nuno guilty "if he acted or failed to act without the intent required for

that crime, but acted instead accidentally." By acquitting him of these counts, the jury

                                              7
implicitly found that Nuno hit J.C. by accident, or it was not convinced beyond a

reasonable doubt that he hit him "willfully."

       But the verdict does not necessarily imply the jury accepted Nuno's version of

events in its entirety. No other witness at trial corroborated Nuno's account that J.C.'s

employees circled his car, tools in hand, or that J.C. pried open his car door as he tried to

reverse. The jury could have disbelieved that Nuno was under threat; or it might have

found that Nuno's subjective belief that he was under threat was unreasonable and would

not have led a reasonable person to flee. Alternatively, the jury could have accepted

Nuno's account but believed he could have stopped sooner. By the time Nuno called for

help, a bystander had dialed 911, and an ambulance was on its way. Nuno admitted

stopping at the gate of the tow yard outside J.C.'s auto shop and looking back for a

moment; he was far enough from the scene of the collision that he could not see the

extent of J.C.'s injuries. Nevertheless, he did not stop there and drove an additional—

albeit short—distance before dialing 911.

       Whether Nuno stopped as soon as reasonably possible is "necessarily [ ] a question

of fact to be determined by the jury." (People v. Steele (1929) 100 Cal.App. 639, 646.)

Sufficient evidence supports the jury's finding that Nuno failed to do so.

3.     Denial of Probation

       Nuno argues the court erred in finding him presumptively ineligible for probation

under section 1203, subdivision (e) and in further failing to find this was an unusual case

to grant probation in the interests of justice. As we explain, the court erred in finding him

presumptively ineligible for probation, and remand is necessary for resentencing.

                                                8
       a.       Additional background

       The probation department prepared a report that included results from the

COMPAS (Correctional Offender Management Profiling for Alternative Sanctions)

assessment, which placed Nuno at a low risk of recidivism:

             "The assessed level of risk for recidivism suggests that the defendant
             is likely to be successful with minimal intervention and that felony
             summary probation or banked formal probation would adequately
             serve to protect the community. Intervention at a more intrusive
             level could prove ineffective or counter-productive based upon
             available research."

Nevertheless, the probation department recommended a two-year prison commitment for

the hit-and-run with injury conviction. It stated Nuno was presumptively ineligible for

probation because he had used a deadly weapon in perpetrating his crime (§ 1203, subd.

(e)(2)), and the presumption was not rebutted.

       At sentencing, the court indicated it had read the probation report and stated Nuno

was presumptively ineligible for probation due to his prior prison term. It is not clear

whether the court misread the probation report or deemed Nuno presumptively ineligible

on an alternative ground. It nonetheless entertained argument as to Nuno's request for

probation.

       Defense counsel argued Nuno's acquittals on counts 1 and 2 contradicted

foundational facts in the probation report and undermined its sentencing

recommendation. Counsel further argued the facts were unusual and rebutted any

presumptive ineligibility for probation. The People disagreed and urged the court to find




                                               9
the case more egregious than the typical hit-and-run with injury based on the nature of

J.C.'s injuries and Nuno's prior criminal record.

       The court expressed concern for the safety of the community at large, as Nuno

"didn't extricate himself, and ends up in a situation where he's in his car and someone's

damaged to the extent of broken bones, . . ." It found Nuno had "prior run-ins with the

law" and had placed himself in a situation where he appeared to have taken matters in his

own hands. As a result, it stated it would be "denying the probation that [Nuno] had

hoped for."

       "Generally speaking, the trial court must state reasons for granting or denying

probation." (People v. Lesnick (1987) 189 Cal.App.3d 637, 644; Cal. Rules of Court, rule

4.406(b).) 2 But it need not provide reasons for declining to find a case "unusual" so as to

rebut any presumptive ineligibility for probation. (Lesnick, at p. 644.) And it does not

apply the criteria in rule 4.414 to determine whether to grant probation unless it first finds

any statutory presumption against probation is rebutted. (Rule 4.413(b); People v.

Superior Court (Dorsey) (1996) 50 Cal.App.4th 1216, 1229.)

       Here, the court found Nuno presumptively ineligible for probation and provided

some reasons for denying probation. As we read the record, the court did not find the

case to be "unusual" to rebut the presumption of probation ineligibility. Contrary to the

People's argument, there is no suggestion it made any finding that it would have denied

probation had Nuno been presumptively eligible for it. (Cf. People v. Bradley (2012) 208



2      Further rule references are to the California Rules of Court.
                                             10
Cal.App.4th 64, 90 [where the trial court "indicated that even if [the defendant] were

presumptively eligible for probation, it would not have granted probation to him," the

appellate court could simply assess whether the denial of probation was an abuse of

discretion].)

       b.       Standard of review

       "The sentencing court has broad discretion to determine whether an eligible

defendant is suitable for probation . . . ." (People v. Welch (1993) 5 Cal.4th 228, 233.)

There is likewise broad discretion to determine whether a given case is "unusual" and

entitles the defendant to probation in the interests of justice. (People v. Superior Court

(Du) (1992) 5 Cal.App.4th 822, 831.) To establish abuse, the defendant bears the burden

on appeal to show that the denial of probation was, under the circumstances, arbitrary,

capricious, or exceeding the bounds of reason. (Ibid.)

       Nevertheless, "all exercises of legal discretion must be grounded in reasoned

judgment and guided by legal principles and policies appropriate to the particular matter

at issue." (People v. Russel (1968) 69 Cal.2d 187, 195.) Where a court "bases its

determination to deny probation in significant part upon an erroneous impression of the

defendant's legal status, fundamental fairness requires that the defendant be afforded a

new hearing and 'an informed, intelligent and just decision' on the basis of the facts."

(People v. Ruiz (1975) 14 Cal.3d 163, 168.) We independently evaluate whether the trial

court properly found Nuno presumptively ineligible for probation. (See People v.

Manriquez (1991) 235 Cal.App.3d 1614, 1616−1620 (Manriquez) [considering de novo

whether presumptive ineligibility required personal carrying of a deadly weapon]; People

                                             11
v. Alvarez (2002) 95 Cal.App.4th 403, 408 [considering de novo whether presumptive

ineligibility required personal use of a deadly weapon].) Only if it did do we need to

consider whether the court should have found the case "unusual" to rebut the presumption

"in the interests of justice." (§ 1203, subd. (e).)

       c.      Analysis

       At the outset, the court erred to the extent it found Nuno presumptively ineligible

for probation based on his prior record. Nuno admitted a prior felony conviction in 2004

for transportation of controlled substances, and he had a prior misdemeanor adjudication

in 2007 for a loud noise complaint. As Nuno states, "there is no statutory presumption of

ineligibility based on a single prior felony conviction." Section 1203, subdivision (e)(4)

renders a defendant presumptively ineligible for being "previously convicted twice in this

state of a felony or in any other place of a public offense which, if committed in this state

would have been punishable as a felony" (italics added). The People present no argument

to the contrary.

       The key question in this case is whether Nuno could be found presumptively

ineligible for probation under section 1203, subdivision (e)(2). That statute provides:

            "Except in unusual cases where the interests of justice would best be
            served if the person is granted probation, probation shall not be
            granted to . . . [a]ny person who used, or attempted to use, a deadly
            weapon upon a human being in connection with the perpetration of
            the crime of which he or she has been convicted."

Thus, for Nuno to be presumptively ineligible for probation under this statute, he must

have used (or attempted to use) "a deadly weapon upon a human being," and that use

must have been "in connection with the perpetration" of his hit-and-run offense.

                                              12
       Citing Martinez, supra, 2 Cal.5th 1093, Nuno contends the nexus element is

lacking. We find his argument persuasive. 3 Nuno was convicted of a hit-and-run

causing injury. The act made criminal is not the collision but the subsequent flight.

(Id. at p. 1102.) Although a collision is a condition precedent giving rise to "a duty to

stop, provide identification, and render aid," it is not an element of the crime. (Id. at

pp. 1102−1103.) Thus, for Nuno to be presumptively ineligible for probation under

section 1203, subdivision (e)(2), he must have used (or attempted to use) a deadly

weapon "in connection with" his flight from the scene of the collision.

       Martinez is instructive. At issue was whether a hit-and-run victim could obtain

restitution for injuries sustained in the collision. The statute authorized direct victim

restitution for economic losses incurred "as a result of the commission of a crime."

(§ 1202.4, subd. (a)(1).) The court interpreted this language to limit victim restitution to

"losses incurred as a result of the defendant's unlawful flight from the scene of the

accident . . . but not losses incurred solely as a result [of] the accident itself." (Martinez,

supra, 2 Cal.5th at p. 1103.) It reasoned that the crime was not the collision but the

defendant's failure to "stop, provide identification, and render aid." (Id. at p. 1102.) 4

Applying similar reasoning, another court held that the three-year enhancement for



3      Nuno does not (and could not) argue that his acquittal of assault with a deadly
weapon precluded a finding at sentencing that he used a deadly weapon in connection
with his crime. (See People v. Towne (2008) 44 Cal.4th 63, 85−87.)

4      The court suggested there might be a different result if the defendant committed a
crime, such as reckless driving or driving under the influence, that caused the collision
and resulted in the victim's injuries. (Martinez, supra, 2 Cal.5th at p. 1107, fn. 3.)
                                              13
personal infliction of great bodily injury in the commission of a felony (§ 12022.7, subd.

(a)) did not apply to a hit-and-run defendant because there was no basis to find personal

infliction of injury from the defendant's flight. (Valdez, supra, 189 Cal.App.4th at p. 87.)

       Accordingly, the question before us is whether Nuno used (or attempted to use) a

deadly weapon in connection with his flight from the scene of the collision. That

question hinges on whether the car was a "deadly weapon" at the time of his flight.

       A "deadly weapon" is " ' "any object, instrument, or weapon which is used in such

a manner as to be capable of producing and likely to produce, death or great bodily

injury." [Citation.] Some few objects . . . have been held to be deadly weapons as a

matter of law; the ordinary use for which they are designed establishes their character as

such. [Citation.] Other objects, while not deadly per se, may be used, under certain

circumstances, in a manner likely to produce death or great bodily injury. In determining

whether an object not inherently deadly or dangerous is used as such, the trier of fact may

consider the nature of the object, the manner in which it is used, and all other facts

relevant to the issue.' " (People v. Perez (2018) 4 Cal.5th 1055, 1065 (Perez), citing

People v. Aguilar (1997) 16 Cal.4th 1023, 1028–1029.) A vehicle falls within the second

category and may qualify as a deadly weapon depending on how it is used. (Perez, at

p. 1065 [collecting cases].)

       In Perez, supra, 4 Cal.5th 1055, a defendant was convicted of assault with a

deadly weapon (§ 245, subd. (a)(1)). The court considered whether he was ineligible for

resentencing under the Three Strikes Reform Act of 2012 because he was armed with a

deadly weapon during the commission of his crime. (§ 1170.12, subd. (c)(2)(C)(iii).) It

                                             14
concluded he was ineligible. By driving a truck and dragging the victim along the

ground, knowing his arm was stuck inside, the defendant used the truck as a deadly

weapon. (Perez, at p. 1067.) The court rejected the claim that the defendant did not

intend to use his vehicle as a weapon, finding it sufficient he "willfully used the object in

a manner that he or she knew would probably and directly result in physical force against

another." (Id. at p. 1066.)

       Those facts stand in stark contrast to what the jury found here. The jury acquitted

Nuno of assault with a deadly weapon (count 1), implicitly finding that he either hit J.C.

by accident, or not finding sufficient evidence he did so willfully. It convicted him solely

of fleeing the scene of the collision. There is no evidence Nuno was using his vehicle as

a deadly weapon in committing that crime. (See, e.g., Valdez, supra, 189 Cal.App.4th at

p. 87 [enhancement did not apply because defendant did not personally inflict great

bodily injury in fleeing the scene].) A different construction would render every

defendant convicted of a hit-and-run presumptively ineligible for probation under section

1203, subdivision (e)(2). The defendant would be using the car as a deadly weapon by

virtue of having driven the vehicle after the accident, even in cases where the victim was

at fault for the collision.

       We are not persuaded by the People's claim that Martinez is limited to the

restitution context. Our case indeed involves a different statute, but we rely on Martinez

solely to define the conduct criminalized in a hit-and-run with injury. (Martinez, supra,

2 Cal.5th at pp. 1102–1103.) We are also not persuaded by the contention that the "in

connection with" language in section 1203, subdivision (e)(2) is broader than the "as a

                                             15
result of" language in the restitution statute Martinez construed. Both statutes require a

nexus to the crime, and Martinez makes clear that the crime lies solely in the flight.

       In short, because the court sentenced Nuno under the erroneous impression he was

presumptively ineligible for probation, remand is necessary for resentencing. (People v.

Manriquez, supra, 235 Cal.App.3d at p. 1620; People v. Alvarez, supra, 95 Cal.App.4th

at p. 409.) On remand, the court must decide whether to grant or deny probation,

considering the factors in rule 4.414 and any additional criteria pursuant to rule 4.408(a).

It should indicate its reasons for any denial of probation, including any additional criteria

considered. (Rules 4.406(b)(2) & 4.408(a).) 5

                                       DISPOSITION

       The matter is remanded for resentencing. In all other respects, the judgment is

affirmed.


                                                                                    DATO, J.

WE CONCUR:



NARES, Acting P. J.



GUERRERO, J.



5       In light of our ruling, we need not address Nuno's remaining arguments that
(1) this is an unusual case rebutting any presumptive ineligibility for probation; (2) the
criteria in rule 4.414 support a grant of probation; and, in the alternative, (3) imposition
of the middle term was an abuse of discretion.
                                              16
