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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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,

Plaintiff and Respondent,

v.

MYNOR ENRIQUE VARELA,

Defendant and Appellant.

 B293471

 (Los Angeles County

 Super. Ct. No.

 NA099063)

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.
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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.
4

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 injuryproducing 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 
9

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 MultiDisciplinary 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.
10

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, 
12

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.