Filed 6/11/21 P. v. McDarment CA5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F080230
Plaintiff and Respondent,
(Super. Ct. No. PCF352657)
v.
TIMOTHY MCDARMENT, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Tulare County. Michael B.
Sheltzer, Judge.
Benjamin Owens, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman, Harry
Joseph Colombo, and Kimberley A. Donohue, Deputy Attorneys General, for Plaintiff
and Respondent.
-ooOoo-
* Before Poochigian, Acting P.J., Snauffer, J. and De Santos, J.
Defendant Timothy McDarment was convicted of several crimes, including gross
vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a))1 and leaving the
scene of an accident (Veh. Code, § 20001, subd. (a)), arising out of a deadly car crash he
caused while driving under the combined influence of alcohol and methamphetamine.
He was sentenced to a total of 22 years to life on the vehicular manslaughter count, which
included a five-year enhancement for fleeing the scene of the crime (Veh. Code, § 20001,
subd. (c)). The trial court also imposed a concurrent three-year sentence on the leaving
the scene of an accident count, and McDarment contends this term should have been
stayed pursuant to section 654. The People agree, as do we, and the judgment must be
modified.
STATEMENT OF THE CASE
On September 10, 2019, the Tulare County District Attorney filed a fourth
amended information charging McDarment with the following offenses: murder (§ 187,
subd. (a); count 1), gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a);
count 2), driving under the influence of alcohol and a drug causing injury (Veh. Code,
§ 23153, subd. (g); count 3), driving with a blood alcohol content over 0.08% causing
injury (Veh. Code, § 23153, subd. (b); count 4), leaving the scene of an accident resulting
in death or serious injury (Veh. Code, § 20001, subds. (a), (b)(2); count 5), and driving
with a suspended license with a prior conviction (Veh. Code, § 14601.2, subd. (a);
count 6).
The information further alleged the following enhancements. As to count 2:
fleeing the scene of the crime (Veh. Code, § 20001, subd. (c)) and three prior convictions
for driving under the influence (§ 191.5, subd. (d)). As to counts 2, 3 and 4: causing
bodily injury to more than one person (Veh. Code, § 23558). As to counts 3 and 4:
personal infliction of great bodily injury (§ 12022.7, subd. (a)) and a prior conviction for
1 Undesignated statutory references are to the Penal Code.
2.
driving under the influence (Veh. Code, § 23560). The district attorney later announced
it would not proceed on counts 3 and 4.
A jury convicted McDarment on all counts and found the enhancement allegations
to be true. The trial court sentenced McDarment to a term of 15 years to life on count 2
(vehicular manslaughter), plus five years for the fleeing the scene of the crime
enhancement, and two years for the injury enhancement, for an aggregate term of
22 years to life. On count 5 (leaving the scene of an accident), the court imposed a
concurrent three-year term. Sentence was imposed but stayed on count 1 (murder)
pursuant to section 654, and count 6 was dismissed.
STATEMENT OF FACTS
On June 19, 2017, after an afternoon of drinking, McDarment was driving his Jeep
eastbound in the westbound lane of Springville Avenue in Porterville in excess of
60 miles per hour. Meanwhile, P.S. was driving her Toyota Corolla eastbound on
Springville Avenue with her daughter, A.D., in the front passenger seat, and A.D.’s 21-
month-old son, E.S., in the rear driver’s side passenger seat.
P.S. slowed down and put her turn signal on to turn into a driveway.
McDarment’s Jeep hit the rear end of the Corolla, causing the Corolla to spin before
hitting a parked car and coming to rest on the northern shoulder of the road.
E.S. was taken to the hospital where he was pronounced dead from injuries caused by the
accident. P.S. required multiple surgeries.
Just after the accident, McDarment got out of his vehicle and fled on foot.
He was quickly found by police officers and taken into custody. Tests of a blood sample
from McDarment taken two hours after the accident showed a blood alcohol
concentration of .13 percent and a concentration of 27 nanograms per milliliter of
methamphetamine. McDarment had previously been convicted of driving under the
influence and was admonished that if he continued to drive under the influence and
someone was killed as a result, he could be charged with murder.
3.
DISCUSSION
McDarment contends the three-year term for count 5 (leaving the scene of an
accident, § 20001, subds. (a), (b)(2)) must be stayed pursuant to section 654. He is
correct.
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.’ ” (People v. Rodriguez (2009) 47 Cal.4th 501, 507, italics omitted.) If
multiple offenses were “incident to one objective,” the defendant may be punished for
only one offense. (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.) McDarment’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 count [2].
There was only one act of leaving the scene of an accident.” (Calles, at p. 1217.)
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 three-year sentence for count 5, leaving the
scene of an accident (Veh. Code, § 20001, subds. (a), (b)(2)), pursuant to Penal Code
section 654. The clerk of the superior court is directed to amend the abstract of judgment
4.
and to forward certified copies to the appropriate entities. In all other respects, the
judgment is affirmed.
5.