Filed 10/16/20 P. v. Varela CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B293471
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.
v. NA099063)
MYNOR ENRIQUE VARELA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, James Otto, Judge. Affirmed.
Mark Alan Hart, 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, Susan Sullivan
Pithey, Senior Assistant Attorney General, Steven D. Matthews
and Gary A. Lieberman, Deputy Attorneys General, for Plaintiff
and Respondent.
I. INTRODUCTION
Following two jury trials, defendant Mynor Enrique Varela
was convicted of second degree murder, gross vehicular
manslaughter, two counts of assaulting a peace officer, and
leaving the scene of an accident. The first jury returned guilty
verdicts on the assault and leaving the scene of an accident
counts, but could not reach a verdict on the murder and gross
vehicular manslaughter counts. The second jury returned guilty
verdicts on the remaining counts and found true the allegation
that defendant knew or should have known that the victim was a
police officer and used his vehicle as a deadly weapon.
On appeal, defendant contends that the prosecution was
barred by the doctrine of collateral estoppel from pursing the
murder count in the second trial because the first jury’s finding
that defendant left the scene of an accident precluded a
subsequent finding that defendant acted with malice. Defendant
also contends there was insufficient evidence to support the jury’s
true finding that he intentionally used his vehicle as a deadly
weapon. We affirm.
II. BACKGROUND
On May 3, 2014, at around midnight, defendant and his
brother, B.V., went to a party at M.W.’s residence in Harbor City.
The brothers arrived in defendant’s 2005 Chevrolet Tahoe.
The party lasted into the early hours of May 3, 2014. B.V.
became drunk, and defendant consumed several cans of beer,
including one shortly before leaving the party.
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At some point, B.V. argued with O.V. outside the residence.
M.W. tried to intervene and told the two to leave, but the
argument continued and escalated to a physical altercation.
Other party attendees pulled B.V. away from the fight and put
him into the Tahoe. Shortly thereafter, O.V. got into his Camaro.
A witness who observed the altercation called the police.
Los Angeles Police Officers Richard Medina and Roberto Sanchez
responded to the scene in a Crown Victoria (police car).
At some point, the Camaro started spinning “donuts” in the
middle of the street and when it came to a stop, it was facing the
responding police car. The Camaro then sped away, and the
police car followed. Defendant, who had been stopped in the
Tahoe, immediately sped after the police car.1 The Camaro
eventually made a U-turn, followed by the police car. As the
police car was finishing its U-turn, the Tahoe crashed into it,
injuring Officer Medina and killing Officer Sanchez.
Following the collision, defendant and B.V. got out of the
Tahoe and fled the scene on foot. As he was fleeing, defendant
bumped into a witness, who smelled alcohol on defendant’s
breath.
Police searched the Tahoe and found a partially full can of
beer, an identification card, and a vehicle registration identifying
defendant as the Tahoe’s owner. Police then made efforts to
locate defendant by contacting his relatives.
At around 1:30 p.m., approximately nine hours after the
crash, defendant voluntarily appeared at the police station. At
approximately 6:50 p.m., police obtained a blood sample from
defendant. At that time, defendant had 0.0 percent blood alcohol
content. Alcohol burns off at a rate of about one drink per hour.
1 We describe the details of the pursuit below.
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The Los Angeles County District Attorney charged
defendant by information with murder, in violation of Penal Code
section 187, subdivision (a)2 (count 1); gross vehicular
manslaughter, in violation of section 192, subdivision (c)(1)
(count 2); assault on a peace officer, in violation of section 245,
subdivision (c) (counts 3 and 4); and leaving the scene of an
accident, in violation of Vehicle Code section 20001,
subdivision (a) (count 5). As to count 1, the District Attorney
alleged that defendant knew or should have known that the
victim was an officer engaged in his duties and intended to inflict
great bodily injury or used a deadly weapon within the meaning
of sections 190, subdivision (c), 12022, and 12022.7; and that
defendant personally used a deadly weapon—an automobile—in
the commission of the crime, within the meaning of section 12022,
subdivision (b)(1). As to both counts 1 and 2, the prosecution
alleged that defendant fled the scene of a crime, within the
meaning of Vehicle Code section 20001, subdivision (c). As to
counts 4 and 5, the prosecution further alleged that defendant
personally inflicted great bodily injury within the meaning of
section 12022.7, subdivision (a).
Following the first trial, the jury found defendant guilty on
counts 3, 4, and 5 and found the great bodily injury allegation to
be true. But the jury was unable to reach verdicts on counts 1
and 2.
Following a retrial, a second jury found defendant guilty of
counts 1 and 2, and also found true the special circumstance
allegation as to count 1 and the fleeing the scene of a crime
allegation as to count 2.
2 All further statutory references are to the Penal Code
unless otherwise indicated.
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III. DISCUSSION
A. Collateral Estoppel
Defendant contends that the prosecution was barred by the
doctrine of collateral estoppel from retrying him on the murder
count because the jury’s finding of guilt on the leaving the scene
of an accident count established that “the homicide was
accidental.” According to defendant, the jury’s finding of guilt on
count 5, “necessarily include[d] a finding there was an accident,
[which] finding cannot be reconciled with the mental state
required for murder.” We disagree.
1. Background
Prior to the retrial on counts 1 and 2, defendant made an
oral motion to dismiss the murder count based on the doctrine of
collateral estoppel. At defendant’s request, the trial court took
the matter under submission so that defendant could file a
written motion.
Defendant subsequently filed a written motion to dismiss
the murder count. The prosecutor orally opposed the motion,
arguing that there was no special finding by the jury that
defendant’s conduct was the result of an accident and the jury’s
verdict therefore did not collaterally estop the prosecution from
retrying defendant on the murder count. The trial court denied
the motion.
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2. Analysis
Under the doctrine of collateral estoppel, “‘when an issue of
ultimate fact has once been determined by a valid and final
judgment, that issue cannot again be litigated between the same
parties in any future lawsuit.’” (People v. Catlin (2001) 26
Cal.4th 81, 124, quoting Ashe v. Swenson (1970) 397 U.S. 436,
443.) A fact has been determined if “the issue is identical to an
issue decided in a prior proceeding; . . . the issue was actually
litigated; . . . the issue was necessarily decided; . . . the decision in
the prior proceeding is final and on the merits; and . . . the party
against whom collateral estoppel is asserted was a party to the
prior proceeding or in privity with a party to the prior
proceeding.” (Zevnik v. Superior Court (2008) 159 Cal.App.4th 76,
82). “The party asserting collateral estoppel bears the burden of
establishing these requirements. [Citation.]” (Lucido v. Superior
Court (1990) 51 Cal.3d 335, 341.) We apply a de novo standard of
review. (Cheveldave v. Tri Palms Unified Owners Assn. (2018) 27
Cal.App.5th 1202, 1219.)
Defendant’s collateral estoppel argument is premised on his
view that the term “accident,” as used in Vehicle Code section
20001, subdivision (a), “refers to an event that is unexpected and
without intent.”3 “Generally, the claim that a homicide was
3 Vehicle Code section 20001, subdivision (a) 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 [Vehicle Code
s]ections 20003 and 20004 [requiring that the driver identify
himself, provide additional information to law enforcement,
render reasonable assistance, and in the case of resulting death,
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committed through misfortune or accident ‘amounts to a claim
that the defendant acted without forming the mental state
necessary to make his . . . actions a crime.” (People v. Jennings
(2010) 50 Cal.4th 616, 674.)
Defendant cites State v. Liuafi (Hawaii 1981) 1 Haw.App.
625 in support of his argument. In that case, the Hawaii Court of
Appeals considered whether defendant could be convicted of both
attempted murder and failure to render assistance. (Id. at
p. 640.) The court cited the dictionary definitions of “accident”
which included a “sudden event . . . occurring without intent or
volition,” and concluded that “the word ‘accident’, taken in its
usual sense, and with reference to the purpose of [the Hawaii
statute that criminalizes the failure to render assistance
following an accident], excludes the event that occurred in this
case. An intentional attempt to murder a person by using one’s
vehicle as a weapon does not fit within the general, popular,
usual sense of the word ‘accident.’” (Id. at pp. 642–643.) The
court therefore vacated defendant’s conviction for failure to
render assistance. (Id. at p. 643.)
We agree that the Hawaii statute at issue in State v. Liuafi
is similar to Vehicle Code section 20001, subdivision (a),
including its use of the term “accident.” We nonetheless decline
to adopt the Hawaii Court of Appeals’ interpretation of “accident”
and instead adopt the reasoning of our sister court in People v.
Jiminez (1992) 11 Cal.App.4th 1611 (Jimenez), disapproved on
report the accident to the nearest office of the Department of
California Highway Patrol].” “‘The gravamen of a [Vehicle Code]
section 20001 offense . . . is not the initial injury of the victim, but
leaving the scene without presenting identification or rendering
aid.’ [Citations.]” (People v. Braz (1998) 65 Cal.App.4th 425,
432.)
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other grounds in People v. Korbin (1995) 11 Cal.4th 416, 419.
The court in Jiminez, in construing the term “accident” observed
that “[t]he legislative intent underlying Vehicle Code section
20001 is to benefit persons who suffer injuries as a result of
occurrences involving vehicles. A construction of the statute
which would excuse those drivers who intended to cause an
injury-producing occurrence from a duty imposed on all other
involved drivers would produce the absurd result that drivers
with the highest level of fault for the injury-producing occurrence
could shirk their responsibilities with impunity while those
drivers who were merely negligent or without fault were
burdened with the statute’s requirements. Because such a
construction of the statute would be absurd, unreasonable and
contrary to the law’s purpose, we hold that Vehicle Code section
20001 applies to all drivers of vehicles involved in injury-
producing events. ‘Accident’ is used in Vehicle Code section
20001 to refer to an incident or event.” (Id. at p. 1626; accord
People v. Campbell (2017) 12 Cal.App.5th 666, 673.)
Because defendant’s conviction for leaving the scene of an
accident did not include a necessary finding that defendant acted
without intent in causing the collision, collateral estoppel did not
bar the retrial on the murder count.
B. Use of a Deadly Weapon
Defendant next argues that there was insufficient evidence
to support the jury’s finding that he used his vehicle as a deadly
weapon. According to defendant, “[t]he inference [defendant] was
using his car to hit the police car is not credible” because
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purposely driving into another car would have been suicidal. We
conclude substantial evidence supported the jury’s true finding.
1. Background
Officers with the Los Angeles Police Department Multi-
Disciplinary Collision Investigation Team collected photographs
from the scene of the collision, as well as crash and pre-crash
data from the Camaro, the police car, and the Tahoe. The
prosecution and defense accident reconstruction experts
examined these materials.
a. Prosecution expert
Los Angeles Police Department Officer Jahna Rinaldi
testified as the prosecution accident reconstruction expert. After
reviewing photographs, data, and witness interviews, Rinaldi
described how the Tahoe, which weighed 5,350 pounds, followed
the police car, which weighed 4,350 pounds, by accelerating from
a stationary position to over 60 miles per hour, the Tahoe’s
maximum rate of acceleration. The Tahoe continued at 60 miles
per hour—close to double the 35 miles per hour speed limit—and
caught up with the police car. At that point, the police car was
traveling around 15 miles an hour and attempting a U-turn to
continue following the Camaro. Defendant crashed into the
police car before it could complete its turn.
Based on the precrash data, Rinaldi determined that five
seconds before impact, the Tahoe’s speed was 63 miles per hour
and the driver was coasting, that is, his foot was off the
accelerator and the brake.
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Four seconds before impact, the Camaro was halfway
through its U-turn and the police car was changing lanes and
following the path of the Camaro. The police car traveled at
about 15 miles per hour and the Tahoe traveled at 62 miles per
hour. Had defendant applied hard braking at this time, the
Tahoe would have stopped 149 to 158 feet before impact.
Defendant instead tapped the brake.
Three seconds before impact, the police car traveled at 15
miles per hour and the Tahoe traveled at 60 miles per hour. At
that point, defendant was again coasting. Had he applied hard
braking, the Tahoe would have stopped between 114 and 123 feet
from impact.
Two seconds before impact, when the Camaro had nearly
finished its U-turn, the police car was following it at 14 miles per
hour, and the Tahoe continued to travel at 60 miles per hour. At
this point, defendant pressed the accelerator to maintain a speed
of 60 miles per hour. If defendant had applied hard braking two
seconds prior to the crash, the Tahoe would have stopped 26 to 35
feet before impact.
At 1.2 seconds before impact, the Tahoe was traveling at 58
miles per hour. At one second before impact, defendant did apply
brakes, but did not hard brake. Had defendant applied hard
braking, the Tahoe would still have struck the police car, but the
impact would have been with the rear of the police car rather
than its side. Further, at about this time, the Tahoe crossed the
double yellow lines, toward the police car. Had the Tahoe
proceeded straight, maintaining its lane position instead of
turning toward the left, it would not have struck the police car.
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b. Defense expert
Babak Malek testified as defendant’s expert. Malek
testified that the speed of the Tahoe at the moment of impact was
between 45.7 to 47.8 miles per hour. One second prior to impact,
the Tahoe was traveling 58 miles per hour. Malek opined that
this speed reduction reflected moderate braking “consistent with
a conscious choice to avoid collision.” He also opined that the
vehicle’s movement toward the left was “consistent with a
maneuver to avoid an accident.”
2. Analysis
We review the jury’s true finding for sufficient evidence.
(See People v. Marshall (1997) 15 Cal.4th 1, 34.) Under that
standard, a reviewing court determines whether any rational jury
could have found defendant guilty beyond a reasonable doubt,
after viewing evidence in the light most favorable to the
prosecution. (Ibid.; People v. Johnson (1980) 26 Cal.3d 557, 562.)
Moreover, “‘[w]e resolve neither credibility issues nor evidentiary
conflicts; we look for substantial evidence’”—meaning reversal is
only warranted if it appears “‘“that upon no hypothesis whatever
is there sufficient substantial evidence to support”’ the jury’s
verdict. [Citation.]” (People v. Zamudio (2008) 43 Cal.4th 327,
357.)
The evidence reasonably supports the jury’s finding that
defendant intentionally used his car as a deadly weapon. (People
v. Golde (2008) 163 Cal.App.4th 101, 116 [finding that an
automobile may be a deadly weapon if used in a manner capable
of, and likely to, cause death or great bodily injury].) Defendant,
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who had recently consumed beer, purposely pursued the police
car at a high rate of speed, reaching the maximum rate of
acceleration for the Tahoe to do so. Even as the distance between
the Tahoe and the police car narrowed, defendant did not apply
hard brakes and instead tapped the brakes and then pressed the
accelerator. Further, rather than drive straight forward on his
path, which would have avoided a collision, defendant steered his
Tahoe, a heavy sports utility vehicle, toward the lighter police car,
resulting in a fatal collision. Given the relative size of the two
vehicles, we are not persuaded by defendant’s argument that
defendant could not have intended to strike the police car
because to do so would have been suicidal. Indeed, defendant
and his brother successfully fled from the collision site, relatively
unscathed. In any event, even if defendant had intended to hurt
himself, that intent would not undermine his additional intent to
pursue, steer toward, and collide with a police car.
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IV. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
KIM, J.
We concur:
BAKER, Acting P. J.
MOOR, J.
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