Filed 9/9/22 P. v. Brychta CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

CORY SCOTT BRYCHTA,

 Defendant and Appellant.

2d Crim. No. B313752

(Super. Ct. No. 20F-04568)

(San Luis Obispo County)

A jury convicted Cory Scott Brychta of driving under the 

influence of a drug causing injury (Veh. Code, § 23153, subd. (f); 

count 1), leaving the scene of an accident causing injury (id., 

§ 20001, subd. (a); count 2), possession of heroin (Health & Saf. 

Code, § 11350, subd. (a); count 3), possession of 

methamphetamine (id., § 11377, subd. (a); count 4), and 

possession of drug paraphernalia (id., § 11364, subd. (a); count 5). 

As to count 1, the jury found true the allegations that appellant 
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caused great bodily injury to the victims (Pen. Code,1 § 12022.7), 

and that he caused injury to more than one victim (Veh. Code, 

§ 23558). 

In a bifurcated proceeding, the trial court found true the 

allegations that appellant had one prior serious felony conviction 

within the meaning of the “Three Strikes” law (§§ 667, subds. (d)

& (e), 1170.12, subds. (b) & (c)) and section 667, subdivision (a).

The trial court sentenced appellant to state prison for a 

total term of 17 years, calculated as follows: as to count 1, six

years (the upper term of three years, doubled due to the prior 

strike), plus two three-year great bodily injury enhancements, 

and five years for the Penal Code section 667, subdivision (a)

enhancement. The court imposed concurrent terms on the 

remaining counts. We affirm.

FACTS

On the afternoon of July 27, 2020, Brychta was driving on 

24th street in Paso Robles. The street has one lane each way. At 

about 3:00 p.m., Brychta crossed a double yellow line and struck 

a Lexus sports utility vehicle (SUV) head-on. The SUV’s airbags 

deployed and it automatically called 911. Brychta’s car left no 

skid marks.

Brianna Mayer was driving the SUV and Jeffrey Kim was a 

passenger. Kim was able to get out of the car. Mayer was held 

inside by the airbags. Brychta got out of his car, looked toward 

Kim, and asked if they were okay. Kim said they were, and 

Brychta walked away from the scene.

Police Officer Brett Mobley arrived at the scene shortly 

thereafter. Mobley was in uniform and driving a marked police 

1 All further references are to the Penal Code unless 

otherwise indicated.
3

car. Brychta walked past Mobley without saying anything. A 

person at the scene told Mobley that a man who was involved in 

the collision was walking eastbound on 24th street. Mobley saw 

Brychta walking eastbound about 400 feet away.

When Mobley contacted Brychta, he was walking away 

from the scene of the collision. Brychta was wearing a backpack 

and carrying a water bottle, a cell phone, and the keys to his car. 

Brychta appeared nervous and was speaking incoherently about 

a dog.

Mobley asked Brychta about his involvement in the 

collision. Brychta replied that a person named Cindy was the 

driver and he was a passenger. When Mobley pointed out the 

seatbelt marks on his body showed he was the driver, Brychta 

admitted he was. Brychta told Mobley that he ran from the scene 

because his dog ran up the hill.

Brychta exhibited signs of being under the influence of 

drugs. When asked by a paramedic at the scene, Brychta denied 

using drugs or alcohol. A search of his backpack revealed several 

used syringes, a methamphetamine pipe, and a scale. Brychta’s 

blood tested positive for methamphetamine and opiates.

Approximately four or five feet from the driver’s side of 

Brychta’s car police found a syringe with a dark fluid in it. Police 

also found Brychta’s California identification card two or three 

feet from the syringe. The syringe contained methamphetamine 

and heroin, commonly known as a “speed ball.” 

Mayer and Kim were transported by ambulance to a 

hospital. Mayer sustained a concussion and still suffers from 

neck pain. She gets migraines more often than she did before the 

collision. Kim sustained a broken clavicle, requiring surgery. 
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DEFENSE

Brychta did not testify or offer other evidence.

DISCUSSION

I.

Defense of Necessity

Brychta contends the trial court erred in failing sua sponte 

to instruct on the defense of necessity as it relates to count 2, 

leaving the scene of an accident causing injury.

Brychta claims he was required to leave the scene of the 

collision to chase after his dog. He argues that he had an 

affirmative duty to care for his dog. (Citing Pen. Code § 597.1, 

subd. (a) [animal neglect].) He also argues a dog on the highway 

presents a traffic hazard to motorists.

When a driver is in an accident resulting in injury, the 

driver is required to immediately stop at the scene of the 

accident; provide his name, address, the vehicle owner’s name 

and address; and the vehicle registration number to the driver or 

occupants of the other vehicle; and render reasonable assistance

to any injured person. (Veh. Code §§ 20001, subd. (a), 20003; 

People v. Scheer (1998) 68 Cal.App.4th 1009, 1027.) Brychta’s 

concern for his victims was limited to asking if they were okay as 

he headed down the road. That fell somewhat short of his legal 

obligations.

The trial court has a sua sponte duty to instruct on a 

defense only where there is substantial evidence supporting the 

defense. (People v. Villanueva (2008) 169 Cal.App.4th 41, 49.)

CALCRIM No. 3403 is the instruction on the defense of 

necessity: The defendant is not guilty of leaving the scene of an 

accident causing injury if he acted because of legal necessity. In 

order to establish this defense, the defendant must prove that: 1) 
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He acted in an emergency to prevent a significant bodily harm or 

evil to himself or someone else); 2) he had no adequate legal 

alternative; 3) his acts did not create a greater danger than the 

one avoided; 4) when he acted, he actually believed that the act 

was necessary to prevent the threatened harm or evil; 5) a

reasonable person would also have believed that the act was 

necessary under the circumstances; and 6) he did not 

substantially contribute to the emergency. The defendant has 

the burden of proving this defense by a preponderance of the 

evidence. This is a different standard of proof than proof beyond 

a reasonable doubt. To meet the burden of proof by a 

preponderance of the evidence, the defendant must prove that it 

is more likely than not that each of the six listed items is true.

There is no substantial evidence that Brychta acted in an 

emergency to prevent a significant bodily harm or evil to himself 

or someone else. His dog ran away. There is no evidence that the 

dog was creating a traffic hazard or any other hazard that 

required his immediate attention. Brychta’s speculation to the 

contrary is not evidence. The trial court did not err in failing to 

instruct on necessity.

Moreover, had the trial court erred, it would have been 

harmless by any standard. CALCRIM No. 3403 requires the 

defendant to show that he did not contribute to the emergency. 

The undisputed evidence is that Brychta caused the emergency. 

His dog would not have been loose had he not crossed the double 

line and collided with the SUV.

In addition, when Mobley contacted Brychta, he was 

wearing a backpack and carrying a water bottle, a cell phone and 

car keys. Brychta had walked past Mobley, who was in uniform 

and in a marked patrol car, without saying anything. Brychta 
6

told Mobley that a person named Cindy was driving. It is obvious 

Brychta’s intent was to flee the scene of the collision he caused.

II.

Dominion and Control Over Drugs

Brychta contends there is no substantial evidence to 

support his convictions for possession of heroin and 

methamphetamine as alleged in counts 3 and 4.

In reviewing the sufficiency of the evidence, we view the 

evidence in a light most favorable to the judgment. (People v. 

Johnson (1980) 26 Cal.3d 557, 578.) We discard evidence that 

does not support the judgment as having been rejected by the 

trier of fact for lack of sufficient variety. (People v. Ryan (1999) 

76 Cal.App.4th 1304, 1316.) We have no power on appeal to 

reweigh the evidence or judge the credibility of witnesses. 

(People v. Stewart (2000) 77 Cal.App.4th 785, 790.) We must 

affirm if we determine that any rational tier of fact could find the 

elements of the crime beyond a reasonable doubt. (Johnson, at p. 

578.)

The convictions were based on drugs found in a syringe 

located four or five feet from the driver’s side of Brychta’s car. 

Brychta’s identification card was two or three feet from the 

syringe. Brychta was found to be under the influence of drugs 

similar to those found in the syringe. Used syringes were found 

in Brychta’s backpack. The conclusion that Brychta possessed 

the drugs is inescapable. 

Brychta’s argument appears to be based on the theory that 

he lacked custody and control of the drugs at the time the police 

found the syringe. But he was charged with possession of the 

drugs on the day of the collision. It is obvious he had custody and 
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control of the syringe containing the drugs in his car immediately 

prior to the collision.

III.

Five Years Serious Felony Enhancement 

Brychta contends the trial court applied the wrong 

standard in denying his request to dismiss a five-year

enhancement under Penal Code section 1385.

The trial court denied Brychta’s motion to strike his prior 

serious felony conviction for residential burglary. The conviction 

was alleged under both the Three Strikes law and section 667, 

subdivision (a).

The trial court stated a number of reasons why it was 

denying the motion to strike the prior strike. (People v. Superior 

Court (Romero) (1996) 13 Cal.4th 497.) Brychta has a lengthy 

criminal history beginning in 2011, largely driven by drug use; he 

was on parole when he committed the current offenses; he fled 

from the collision; he denied he was the driver of the car; he 

showed a lack of concern for his victims; he had a toxic level of 

drugs in his system, but denies he has a substance abuse 

problem.

Addressing Brychta’s motion to dismiss the five-year

enhancement, the trial court reviewed a number of cases to see 

how trial and appellate courts are looking at the issue. The court 

stated, “I didn’t find one case where a court . . . denied a Romero

motion but dismissed the punishment for the five-year 

enhancement. They seem to go hand in hand. I’m not surprised 

because the standard is interest of justice.” 

The court told Brychta that to grant a Romero motion, the 

defendant must fall outside the spirit of the Three Strikes law. 

The court said for it to do that “there has to be extraordinary 
8

circumstances present . . . .” The court summarized by stating 

Brychta does not fall outside the spirit of the “Three Strikes” law. 

“And it goes hand in hand with that five-year enhancement. I do 

have discretion to strike the punishment. I don’t think those 

circumstances are present here, unfortunately.”

Senate Bill No. 1393 (2017-2018 Reg. Sess.), effective 

January 1, 2019, amended sections 667, subdivision (a)(1) and 

1385, subdivision (b) to give the trial court discretion to strike or 

dismiss the five-year enhancement for a serious felony prior 

conviction. Brychta was sentenced after the effective date of the 

amendments.

In arguing that the trial court applied the wrong standard, 

Brychta relies on the court’s statement that a denial of a Romero

motion and the denial of a motion to strike the five-year 

enhancement go hand in hand. 

But the court was commenting on its research into what 

other courts do when faced with the same issue. The court was 

summarizing the results of its research, not stating a standard 

for sentencing. The court recognized it had discretion. The court 

stated it is not surprised that the denial of a Romero motion and 

the imposition of the five-year enhancement go hand in hand 

“because the standard is interest of justice.” The court also 

stated, “I do have discretion to strike the punishment.” The court 

did not state that the denial of the Romero motion compels it to 

deny the motion to strike the five-year enhancement. 

Brychta also points to the trial court’s statement that there 

must be extraordinary circumstances present. But the court was 

referring to the Romero motion. That is the correct statement of 

the law. (See People v. Carmony (2004) 33 Cal.4th 367, 378.)
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Finally, Brychta challenges the court’s statement that he 

showed a lack of concern when he testified at trial. He claims he 

was masked at trial. Even assuming the court erred, it was 

harmless by any standard. The court cited numerous other 

factors in denying his motion.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

GILBERT, P. J.

We concur:

YEGAN, J.

PERREN, J.*

* Retired Associate Justice of the Court of Appeal, Second 

Appellate District, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution. 
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Hernaldo J. Baltodano, Judge

Superior Court County of San Luis Obispo

______________________________

Wayne C. Tobin, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Steven D. Mathews and Gary A. Lieberman, 

Deputy Attorneys General, for Plaintiff and Respondent.