Filed 7/19/13 P. v. Yelverton CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)


THE PEOPLE,                                                                                  C068748

                   Plaintiff and Respondent,                                     (Super. Ct. No. 10F02094)

         v.

JEFFREY CRAYTON YELVERTON, SR.,

                   Defendant and Appellant.




         Defendant Jeffery Crayton Yelverton, Sr., was involved in a fatal car accident. As
a result, the People filed an information charging defendant with voluntary manslaughter
(Pen. Code, § 192, subd. (a))1 and hit and run (Veh. Code, § 20001, subd. (b)(2)).
Following trial, a jury found defendant guilty of both crimes. Finding the offenses were
committed pursuant to separate criminal objectives, the trial court sentenced defendant to
a term of six years on the voluntary manslaughter and a consecutive eight months on the
hit and run. Defendant appeals the sentence imposed, contending: (1) his sentence for




1   Undesignated statutory references are to the Penal Code.

                                                             1
hit and run should have been stayed under section 654; and, (2) the trial court abused its
discretion in imposing consecutive sentences. We find no error and affirm the judgment.
                               FACTUAL BACKGROUND
       For about a year prior to the accident, defendant played poker every Sunday
morning at Capitol Casino on 16th Street. One Sunday afternoon in March 2010,
Massimo Marini, Mike Rios, and Bill Deollas were outside the Loaves & Fishes complex
where they worked. Standing on the corner of a cul-de-sac off of 12th Street, Marini and
David Toney heard an engine revving. The car was approaching them from 16th Street.
Marini recognized the car and defendant as the driver, as he had repeatedly sped through
the area on numerous Sundays. The car passed the men, traveling at an unsafe speed,
approximately 35-40 miles per hour. At the end of the cul-de-sac, it slowed, made a
U-turn and came back. As the car headed back toward 16th Street, it began to accelerate
again reaching speeds of 35-40 miles per hour. Marini and Deollas raised their arms and
all three men spread out into the street, signaling for the driver to slow down. Instead, the
car sped up and headed at Rios. Rios was holding a walkie-talkie and pointed the
antenna at the driver.2 At the last moment, Rios jumped out of the way of the oncoming
vehicle and the car swerved into Deollas. Deollas jumped, but was hit by the car. He hit
the windshield, was thrown about 10 feet in the air, rolled off the top of the car, and
landed face down on the pavement. The driver made no attempt to stop; rather he sped
up and left the area. Rios ran to the fire station to get help for Deollas. Marini called
911.
       Toney, who witnessed the accident, got on his bicycle and followed the car
towards 16th Street. The car turned the wrong way on a one-way street and wove in and
out of traffic, changing lanes and passing cars. The car drove past Capitol Casino, where



2 In previous statements and at the preliminary hearing, Rios stated he had nothing in his
hands.

                                              2
multiple police vehicles were parked in plain view. The car continued toward Richards
Boulevard, passing multiple businesses. Toney got the attention of a Sacramento police
officer and told him what had happened. The officer went in pursuit of defendant, but
was not able to find defendant.
        After leaving the scene of the accident, defendant continued on to Arden Fair Mall
and called his wife. Defendant told her that on leaving the casino he had planned to go to
the mall to buy a gift for their daughter, but someone tried to rob him. The person was
armed with a gun and defendant hit him with the car.
        Defendant then called 911 from the mall parking lot. In the 911 call, defendant
claimed someone had attempted to rob him in the downtown area. He had hit the person
with his car and was waiting for officers at the mall.
        Sacramento Police Officer Bohrer spoke with defendant at the mall. Bohrer
observed defendant‟s car had been damaged, the roof had a large dent on it and the
windshield had “matter” on it. Defendant told police he had been in an accident. He
stated he had made a wrong turn, when three men jumped in the street and blocked the
road. He thought one of the men had a gun. He panicked. He was afraid to get robbed
or shot, so he “floored” it. The men did not get out of the way, and he hit one of them.
He was panicking and just kept driving. After being Mirandized,3 defendant stated he
had been playing poker at the casino, as he does every Sunday. He left the casino,
decided to cut across 16th Street on a side street and got lost. Defendant stated he did not
know the area well, but knew it was “bad.” After he turned down one street, he saw a
group of men and they were yelling at him, when he turned around in the cul-de-sac three
of the men were standing in the street yelling at him. He thought one of them had a gun
and they were going to rob him. He got scared and “gunned it . . . drove straight




3   Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694].

                                             3
towards” the men. He knew he had hit one of the men and that man had to be injured.
He panicked and left the scene. Although he passed the casino, he did not stop there
because he was panicked. Bohrer determined defendant was not under the influence of
drugs or alcohol. Defendant denied using drugs and denied he had been in the area to
purchase drugs. Subsequent testing revealed that defendant had ingested marijuana
within the last 48 hours.
       Deollas was taken to U.C. Davis Medical Center. He was unconscious and had a
severe open skull fracture. He remained in a coma for about six weeks and then he died.
The cause of death was determined to be blunt force head injury.
                                PROCEDURAL HISTORY
       An information charged defendant with voluntary manslaughter (§ 192, subd. (a))
and failing to stop at the scene of an accident resulting in an injury (Veh. Code, § 20001,
subd. (b)(2)). As to the voluntary manslaughter, the information further alleged
defendant had fled the scene as an enhancement (Veh. Code, § 20001, subd. (c)). The
enhancement allegation was dismissed on the People‟s motion. Following trial, a jury
found defendant guilty on both counts.
       The trial court denied defendant probation and sentenced him to six years in prison
for voluntary manslaughter and a consecutive term of eight months for fleeing the scene.
In reaching this sentence, the court considered the probation report, victim impact
statements, letters from the victim‟s family, defendant‟s statement in mitigation which
included letters of support, argument from counsel, and a statement from defendant. The
court found “In this matter I have been privy to all of the information conveyed in the
trial and very aware of the factual underpinnings of the case. I do not find this to be a
case appropriate for probation in light of the factual circumstances and the manner of
commission of the crime. [¶] While I agree with the defense that I don‟t consider this a
crime of planning or sophistication, the characterization of that particular factor in
probation is not -- the Court does not adopt that, but I do find that the confluence of all

                                              4
the facts surrounding this particular crime to be very aggravating, senseless, and while
inexplicable, certainly not excusable because we don‟t understand the motivation. [¶]
The jury rejected the defendant‟s version of facts, as does the Court, based on the
evidence presented in this trial. And in finding that conclusion further finds, therefore,
that the defendant lied to cover up his own crime. And I do take that into account as
well. [¶] This was a -- not just a loss of life, as the friends and family here know, this
was a life stolen from them. . . . [¶] . . . [¶] And it is the judgment and sentence of this
Court that for the crime that you have committed in Count One, the crime of voluntary
manslaughter, the Court will imprison you, order that you be imprisoned in the state
prison for the middle term of six years. [¶] Additionally, for the crime of hit and run, the
Court will order a consecutive sentence as the Court finds that to be a distinct and
different offense on the facts of that case, your leaving Mr. Deollas on the street to suffer
the pain that he did and have ultimately a painful, slow death in the hospital, but you left
him helpless there. It is appropriate in the Court‟s view that you be imprisoned
additionally and consecutively for that separate offense for eight months.”
       The trial court ordered defendant to pay $15,077 in victim restitution and $1,200
to the restitution fund. The trial court imposed additional fines and penalties and
awarded defendant 26 days of actual credits with conduct credits to be determined.
                                       DISCUSSION
                                               I
       Defendant contends the trial court erred sentencing him to consecutive sentences
in violation of section 654‟s prohibition against multiple punishments for a single act or
indivisible course of conduct. He argues there was “no divisible course of conduct based
on [his] intent and objective. He held one single and ultimate objective - to get out of a
dangerous situation and find a place of safety.” As such, he claims he should not have
been “punished twice for the same course of conduct . . . .”



                                              5
       Section 654, subdivision (a) provides, in pertinent part, “[a]n act or omission that
is punishable in different ways by different provisions of law shall be punished under the
provision that provides for the longest potential term of imprisonment, but in no case
shall the act or omission be punished under more than one provision.” Section 654 is
intended “to insure that a defendant‟s punishment will be commensurate with his
culpability.” (People v. Perez (1979) 23 Cal.3d 545, 552.) The statute bars multiple
punishment for both a single act that violates more than one criminal statute and multiple
acts, where those acts comprise an indivisible course of conduct incident to a single
criminal objective and intent. (People v. Latimer (1993) 5 Cal.4th 1203, 1208; Neal v.
State of California (1960) 55 Cal.2d 11, 19.) Conversely, where a defendant commits
multiple criminal offenses during a single course of conduct, he or she may be separately
punished for each offense that he or she committed pursuant to a separate intent and
objective. (People v. Beamon (1973) 8 Cal.3d 625, 637-639.) Multiple criminal
objectives may “be a predicate for multiple punishment only in circumstances that
involve, or arguably involve, multiple acts. The rule does not apply where . . . the
multiple convictions at issue were indisputably based upon a single act.” (People v. Mesa
(2012) 54 Cal.4th 191, 199.) The trial court may find separate objectives “when the
objectives were either (1) consecutive even if similar or (2) different even if
simultaneous.” (People v. Britt (2004) 32 Cal.4th 944, 952.) A trial court‟s finding that
“a defendant harbored a separate intent and objective for each offense will be upheld on
appeal if it is supported by substantial evidence. [Citation.]” (People v. Blake (1998)
68 Cal.App.4th 509, 512.)
       Voluntary manslaughter and fleeing the scene of an accident are separate and
distinct acts. (See People v. Butler (1986) 184 Cal.App.3d 469, 471-474 (Butler); see
also People v. Jones (2012) 54 Cal.4th 350, 358.) The criminal act in voluntary
manslaughter is an act that causes the death of another person (§ 192, subd. (a)); in this
case, hitting Deollas with the car. In contrast, “ „[t]he gravamen of a [Vehicle Code]

                                              6
section 20001 offense . . . is not the initial injury of the victim, but leaving the scene
without presenting identification or rendering aid.‟ [Citation.]” (People v. Harbert
(2009) 170 Cal.App.4th 42, 59.) “Although a violation of [Vehicle Code] section 20001
is popularly denominated „hit-and-run,‟ the act made criminal thereunder is not the
„hitting‟ but the „running.‟ ” (People v. Corners (1985) 176 Cal.App.3d 139, 148.)
Accordingly, the trial court was required to determine whether these separate acts were
part of an indivisible course of conduct.
       Whether the acts of which a defendant has been convicted constituted an
indivisible course of conduct incident to a single objective or multiple criminal objectives
is primarily a factual determination made by the trial court. “ „This determination will
not be reversed on appeal unless unsupported by the evidence presented at trial.‟
[Citations.]” (Butler, supra,184 Cal.App.3d at p. 473; People v. Mesa, supra, 54 Cal.4th
at p. 199.)
       Defendant played poker every Sunday at the Capitol Casino and had a history of
driving through the area too fast. On the day of the accident, he revved the engine and
sped down the cul-de-sac. Upon reaching the end of the cul-de-sac, he turned around and
headed back down the street, accelerating and driving straight at Rios, Marini, and
Deollas as they tried to slow him down. He swerved into Deollas, hit him, and fled the
scene. Although he passed by police officers at Capitol Casino, a location he was
familiar with, he did not stop there to report the accident or get help. Nor did he stop at
any of the businesses along the way to the mall. Instead, he continued on to the mall, as
he had originally planned to do upon leaving the casino. After calling his wife, he called
911 and reported he had gotten lost and, in evading what he thought was an attempted
armed robbery, had hit someone. He repeated that claim to Bohrer.
       Defendant claims his “ultimate objective was to get himself out of danger.” This
argument rests on his version of events, under which he thought Deollas and his friends
were going to rob or shoot defendant and he panicked, hit Deollas, and kept driving

                                               7
because he was afraid for his life. Both the jury and the trial court rejected these claims.
Indeed, the trial court specifically found defendant lied to cover up his crime. As a
reviewing court, we do not reweigh evidence or reevaluate a witness‟s credibility.
(People v. Albillar (2010) 51 Cal.4th 47, 59–60.)
       As in Butler, here, in committing the voluntary manslaughter defendant was acting
with general intent; he was recklessly driving down the street at a high speed and
intentionally drove straight at Deollas, Marini, and Rios consciously disregarding the
risk. In so doing, he caused a fatal accident. He then intentionally left the scene of the
accident instead of remaining, rendering aid, and providing identification as required by
law. This was an independent and separate criminal act, the intent and objective of which
was to attempt to avoid responsibility for his crime. (Butler, supra, 184 Cal.App.3d at
p. 474.) Substantial evidence supports the trial court‟s finding that the voluntary
manslaughter and hit and run offenses were committed pursuant to separate criminal
objectives. Therefore, separate punishment for each offense was not barred by section
654.
       Furthermore, such a finding is consistent with the purpose underlying the
prohibition on multiple punishment; to insure punishment is commensurate with
culpability. “If multiple punishment is prohibited in this case . . . there would be no
incentive for a person who causes an accident to stop and render aid as required by
Vehicle Code section 20001. In fact, noncompliance would be rewarded. A defendant
would suffer no greater criminal liability if he took his chances on escaping than if he
stopped and rendered aid. Our Legislature could not and did not intend such an absurd
result.” (Butler, supra, 184 Cal.App.3d at p. 474.)
                                              II
       Defendant next contends even if the trial court did not err in refusing to stay the
sentence under section 654, the trial court abused its discretion in imposing consecutive



                                              8
terms in accord with the California Rules of Court, rule 4.425.4 Relying on the
arguments made in his section 654 claim, he argues because “the crimes and their
objectives were not independent of each other and undoubtedly constituted a single
period of aberrant behavior . . . the results [of the section 654] analysis should have
dictated an election of concurrent terms . . . .” Alternatively, defendant argues counsel
was ineffective in failing to object to the court‟s sentencing decision.
        A trial court has discretion to determine whether several sentences are to run
concurrently or consecutively. We will not disturb that determination absent a clear
showing of abuse. (People v. Bradford (1976) 17 Cal.3d 8, 20.) An abuse of discretion
is shown when the court exceeds the bounds of reason, all circumstances being
considered. (Ibid.)
        The criteria applicable to the trial court‟s discretion are set forth in rule 4.425,
which states that in imposing consecutive sentences a trial court may consider: (1)
whether the “crimes and their objectives were predominantly independent of each other”;
(2) whether the “crimes involved separate acts of violence or threats of violence”; and (3)
whether the “crimes were committed at different times or separate places, rather than
being committed so closely in time and place as to indicate a single period of aberrant
behavior.” (Rule 4.425(a)(1)-(3).) However, these criteria are not exclusive. Rule
4.408(a) states: “[T]he enumeration in these rules of some criteria for the making of
discretionary sentencing decisions does not prohibit the application of additional criteria
reasonably related to the decision being made. Any such additional criteria must be
stated on the record by the sentencing judge.”
        We have reviewed above the trial court‟s determinations regarding the
inapplicability of section 654, and conclude the court‟s findings regarding the




4   Further rule references are to the California Rules of Court.

                                                9
independent criminal objectives for each of defendant‟s crimes were supported by
substantial evidence. On that basis alone, we conclude that the court did not exceed “the
bounds of reason” when it also imposed consecutive terms. (See Bradford, supra,
17 Cal.3d at p. 20.)
       The court considered the probation report, victim impact statements, statements
from the members of the victim‟s family, defendant‟s statement in mitigation with
included letters of support, defendant‟s statement at the hearing, and arguments of
counsel. The court stated the criteria it was using in choosing consecutive terms. The
court found the offenses were separate and distinct. The court was aware of the full
evidentiary record and facts of the case. The court reflected defendant left Deollas “on
the street to suffer the pain that he did and have ultimately a painful, slow death in the
hospital, but you left him helpless there.” The court also found the offense “very
aggravating, senseless, and . . . not excusable . . . .” The court explicitly joined the jury in
rejecting defendant‟s version of the facts and found that the defendant “lied to cover up
his own crime. And I do take that into account . . . .” The court also considered
defendant‟s lack of a prior record, his age, standing in the community, and his letters of
reference. Based on all of these criteria, the court found it appropriate to impose a
consecutive term. On the record before us, this decision was not an abuse of discretion.
                                       DISPOSITION
       The judgment is affirmed.


                                              BLEASE                     , Acting P. J.

We concur:


          MAURO                     , J.


          DUARTE                    , J.


                                              10
