Filed 5/19/15 P. v. Rosas 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

RENE RO SAS,
Defendant and Appellant. 2d Crim. No. B255739 (Super. Ct. No. F470906) (San Luis Obispo County)

A jury found Rene Rosas guilty of vehicular manslaughter without gross negligence while intoxicated. (Pen. Code, § 191.5, subd. (b).) The court sentenced Rosas to four years and suspended the final year. We reverse. There is no evidence Rosas was driving at the time of the accident.
FACTS Rosas brought his motor home to an auto repair shop owned by Ronald Kelsey in September 2010. Rosas had be en having trouble with the motor home. It rolled when the transmission was placed in park.

Susan Booth, Kelsey's sister

- in

- law and employee, saw Rosas go into the motor home and Kelsey go under the driver's side rear tires. She saw Rosas
start the motor home and the motor home roll backwards one to two feet onto Kelsey's back. Booth and Kelsey screamed. Rosas moved the motor home forward.2

The screams brought another employee and two neighboring shop owners to the site. One of the neighboring shop own ers saw Rosas behind the motor home steering wheel, " hanging out the window ," asking "what happened?" The neighboring shop owners pulled Kelsey's body from under the mobile home and
administered "C

. P

. R

. " until the police arrived. Kelsey died of blunt for ce trauma. His injuries were consistent with being crushed by a leveling jack stand under the
motor home. Sergeant Michael Martinez of the Arroyo Grande p olice d epartment conducted an accident investigation. Martinez believed that a chock behind the
fro nt passenger tire was in place when the accident happened. It bore tire treads and had dirt pushed up against it. Other chocks were added after the accident. The
motor home moved a total of 56 inches backward and 32 inches forward.

Rosas told the polic e that initially Kelsey got underneath the motor home and had Rosas shift through the gears while the engine was off. Then Kelsey told Rosas to do the same thing with the engine on. Rosas replied, "Are you crazy? Seriously? Kelsey responded, "Yeah. Ju st keep your foot on the bra k e ? Rosas said he asked, "A re you sure ? " a nd Kelsey replied, "Yeah."

Rosas started the engine. He said he had his foot on the brake when he put the motor home in gear. He said the transmission got stuck in reverse. He
said the motor home moved even though he had his foot on the brake. Police drove the motor home after the incident. They found nothing wrong with the brakes.

Officer Vincent Johnson of the Arroyo Grande police department investigated Rosas for driving under the influence. Rosas admitted that he had taken a "couple of shots" of whiskey before the accident and th at he felt "a little
buzzed." Rosas also admitted that he had used marijuana earlier that day and used methamphetamine between one and three days bef ore. Johnson noticed Rosas' color was flushed, his eyes were bloodshot, his speech was slurred and he had the odor of alcohol on his person. Johnson3

conducted a field sobriety test. Rosas forgot the instructions for a part of the test and swayed during a balance test.

A blood test showed that Rosas had a blood alcohol level of .05, and
0 .33 milligrams per liter of methamphetamine . The therapeutic dose of methamphetamine is .01 to .05 , and the potentially toxic level is . 0 2 to . 0 5. Toxicologist Bill Po sey testified that high levels of methamphetamine can
contribute to the effects of alcohol. Defense

Mechanical Engineer, Michael Stapleford, testified for the defense. Based on the age of the motor home and Rosas' statement, Stapleford opined that
the mo tor home suffered from master cylinder bypass. It allowed the motor home to roll even though Rosas had his foot on the brake.

Stapleford also testified there was only one small wheel chock in place at the time of the incident. That chock was not suffici ent to keep the motor home from rolling. Industry standard is to use large steel or rubber chocks as high
as 12 inches. Stapleford t estified that the industry standard is that the technician has primary responsibility for safety and customers are general ly not allowed in work

areas. Drug and alcohol consultant Felix D'Amico testified he reviewed a video of the field sobriety test. He saw nothing in the test that indicated Rosas was under the influence. D'Amico also criticized the way Johnson conducted portions
of the test. Toxicologist O korie Okorocha testified that a 0 .33 methamphetamine level was not toxic for everybody and would not increase the effects of alcohol. At the time of the accident, Rosas' blood alcohol level could have been .02. Video of the field sobriety test showed Rosas was not impaired.4 DISCUSSION
I.
Rosas contends there is no substantial evidence that he was driving at
the time of the accident.

Penal Code s ection 191.5, subdivision (b) provides: " Vehicular manslaughter while in toxicated is the unlawful killing of a human being without malice aforethought, in the driving of a vehicle, where the driving was in violation
of [s] ection 23140, 23152, or 23153 of the Vehicle Code, and the killing was either the proximate result of the commission of an unlawful act, not amounting to a felony, but without gross negligence, or the proximate result of the commission of a lawful act that might produce death, in an unlawful manner, but without gross negligence ." 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 ver ity. ( People v. Ryan (1999) 76 Cal.App.4 t h 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 trier of fact could find the
elements of the crime or enhancement beyond a reasonable doubt. ( People v.
Johnson
, supra , at p. 578.)

Rosas cites Mercer v. Department of Motor Vehicles (1991) 53 Cal.3d 753, for the proposition that driving requires a vehicle to undergo a volitional
movement. In Mercer , the question was whether for the implied consent law to

app l y, the arresting officer must see the vehicle move. In holding that the arresting
officer must see the vehicle move, the court noted that the offenses to which the implied consent law applie s require the defendant " ' to drive a vehicle. ' " ( Id. at p. 759.) The court stated, "Any doubt about our understanding of the word 'drive' is dispelled by decades of case law holding that the word 'drive' when used i n a drunk5

driving statute, requires evidence of a defendant's volitional movement of a vehicle. [Citations.] " ( Id. at p. 764.)

Here there was no evidence of Rosas' volitional movement of the motor home. At the time of the accident Rosas was following, or at le a st attempting to follow, Kelsey's directions. Both Rosas and Kelsey were aware that if the motor home moved, it could have disastrous consequences. At least one wheel was chocked, albeit inadequately, to prevent movement. Neither Kelsey nor Ros as wanted the motor home to move.

The P eople argue Rosas knew the brake s were faulty. Rosas knew that the parking brake did not function and that the motor home would roll even with the transmission in park. But there is no evidence Rosas knew the motor home
would move even when he had his foot on the br akes

. In fact, the brakes worked when the police tried them.

The movement of the motor home was not volitional. There is no evidence Rosas was driving within the meaning of Penal Code section 191.5.

T he judgment is reversed

. NOT TO BE PUBLISHED.

GILBERT, P. J.

We concur:

YEGAN, J.

PERREN, J.John A. Trice, Judge
Superior Court County of San Luis Obispo

______________________________

David Andreasen , under appointment by the Court o f Appeal, Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, Kimberley J. Baker

- Guille met, Deputy Attorney General, for Plaintiff and Respondent.