1 Filed 10/22/14 P. v. Cox CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOURTH APPELL ATE DISTRICT DIVISION TWO

THE PEOPLE, Plaintiff and Appellant,

v. JASON WAYNE COX, Defendant and Respondent. E060288 (Super.Ct.No . FWV1202312) OPINION

APPEAL from the Superior Court of San Bernardino Count y. Stephan G. Saleson, Judge. Reversed with directions. Michael Ramos, District Attorney, and Bren t J. Schultze, Deputy District Attorney for Plaintiff and Appellant. Law Offices of Michael A. Scafiddi, Mega n A. Scafiddi and Richard V. Myers for Defendant and Respondent.2 I INTRODUCTION Defendant Jason Wayne Cox was accused of driving a truc k that struck and killed a bicyclist. The People appeal from the tria l court’s order setting aside count 1 of the information, charging defend ant with vehicular manslaught er with gross negligence. (Pen. Code, §§ 192, subd. (c)(1 ), 995, 1238, subd. (a)(1); People v. Alice (2007) 41 Cal.4th 668, 680.) 1 We conclude there are three aspects of defendant’s conduct which support a charge of gross negligence: 1) committi ng multiple Vehicle Code violations while driving; 2) not stopping imme diately after hitting the cyclist; and 3) leaving the scene of the accident and not reporting it. In summary, the facts, or reasonable inferences, offered at the preliminary hearing are as follows. Defendant was driving home about 6:30 p.m. in a company truck. He had gotten off his construction job about three hours before at 3:30 p.m. He had a history of Vehicle Co de violations from 2001 to 2006 including a DUI in 2005. Defendant wa s driving west on Foothill Bo ulevard in Rancho Cucamonga. It was still daylight because sunset was an hour later. The number two lane was 25 feet wide and included a wide unmarked bike lane. Two commercial video cameras showed the bicyclist and then a truck traveling west on Foothill. The cameras did not record the truck overtaking or hitting the bicyclist.

1 All statutory references are to the Penal Code unless stated otherwise.3 A witness waiting for the red light to change at Ramona Avenue wa tched the truck make a right turn, north on Ramona, and then spotted the cyclist on the ground. The truck did not stop. The accident investigator concluded that the driver had committed five Vehicle Code violations, all of which contributed to the accident. Additionally, by not stopping immediately, the driver may have dragge d the bicyclist, exacerbating his injuries. Defendant did not report the accident. He did, however, call his sister an hour later and seemed distressed. He lied to his brother about where he was that night or the rest of the week. He told his father he was in trouble. He returned the company truck to the work yard where it remained until weeks later the police got an anonymous tip that defendant had been in volved in a hit-and-run. Wh en the police finally contacted defendant at his home, he was unsurprised. We agree with the People that, based on the legitimate inferences that may be drawn by the evidence, suffi cient evidence supports char ging defendant with gross vehicular manslaughter. (§ 192, subd. (c )(1).) We reverse the trial court’s order.
II FACTUAL AND PROCEDUR AL BACKGROUND A. The Preliminary Hearing The accident which killed Mi chael Vega occurred at arou nd 6:35 p.m. on August 28, 2012, in Rancho Cucamonga near the intersection of Fo othill Boulevard and Ramona Avenue and close to where de fendant lived. The speed limit on Foothill was 45 miles per hour. The number one lane is 12 feet wide. The number two lane is 25.3 feet wide. The4 sun was still shining brightly. 2 Kristy Fenton testified that she was taki ng her son to karate lessons and driving southbound on Ramona. She had stopped at a red light while waiting to cross Foothill. Because she and her son were playing a vehicle-spotting game , she was scanning traffic. While looking to her left, Fe nton observed a white truck with ladder racks make a right turn, north from Foothill to Ra mona. Then she saw a man laying on the ground on Foothill, east of Ramona. She estimated the tr uck was traveling about 25 to 30 miles per hour. Fenton did not recall te lling a deputy sheriff she had he ard a collision. In court, Fenton identified defendant as the driver. A video from a nearby business showed a bicyclist traveling west on Foot hill, followed by a white truck. There is no video footage of the truck passing or hitting the bicyclist. Fenton parked her car and we nt to help Vega. The victim was laying on his back in the gutter, near the curb, in the unmarked bike lane. (Veh. Code, § 21202.) Vega was wearing a helmet but no shoes and ear buds we re tangled in the strap of his helmet. There was road rash on his legs, chest, and back; his shirt was torn; and he had a bloody mouth. Vega was making rocking movements. Fenton called 911 and tried to calm Vega who grabbed her hand and made eye contact with her but kept rocking. While waiting for the paramedics, Fenton held Vega’s he ad until his movements stilled and pink foam came from his mouth.

2 Official records report that sunset on August 28, 2012, occurred at 7:25 p.m.5 A diagram prepared by a de puty sheriff depicted seve ral locations from east to west along Foothill: a bicycle tire friction mark ; a gouge; a scuff of fabric and tissue; a bike helmet; a pool of blood; two shoes; a bicycle; and so me headphones. The friction mark was 32 feet long. The deputy’s opinion was that the friction mark was caused when the bicycle was hit by a faster, heavier object. West of the friction mark, the gouge was caused by the bicycle pedal striking the asphalt. The fiber matched Vega’s clothes. The bike helmet was next to bloo d pooling in the gutter and spa ttered on the curb. The shoes and the bicycle were located farthest to the west. Because the bicycle’s rear wheel was crushed and the flat spot on the tire was consistent with the friction mark, the deputy ’s opinion was the bicyclist was hit from the rear and was pinned and pushed by a vehicle traveling west. Depending on the speed of the vehicle, it would take from half a second to two seconds to travel from the point of impact to the pool of blood. The distance fro m impact to the pool of blood was 70.3 feet. When the accident investigator arrived at the scene, Vega was on the ground and unresponsive. He was bleeding from the mouth and leg and there was severe road rash on his back, chest, and limbs. His injuries s howed he had been drag ged. There were no vehicle skid marks indicating braking. Defendant’s father, sister, and brother te stified they remembered very little about what defendant was doing on August 28, 2012, or how he behaved in the days and weeks afterwards. However, a detective testified th at defendant’s brothe r told him defendant did not come home that night or the rest of the week, claiming he was working in Big6 Bear. Another detective testified that defe ndant’s sister said defendant had called her between 7:00 and 8:00 p.m. on August 28, 2012 , and sounded nervous, causing her to be concerned. Defendant’s father told the seco nd detective that defendant had said he was in trouble. About two weeks after the acc ident, an anonymous calle r reported that defendant had been involved in a hit-and-run accident. The deputy sheriffs went to defendant’s residence on September 12, 2012, and he appeared drunk. Th e deputies informed defendant they were investig ating a collision and he said his work truck was at the storage yard. Defendant did not express a ny surprise about bein g contacted by the deputies. There was no record of defend ant having called 911 on August 28, 2012. Defendant worked for Peterson Pipeline an d his usual working hours were 7:00 a.m. to 3:30 p.m. The truck defendant wa s driving was owned by Peterson Pipeline and was assigned to defendant. Defendant was permitted to driv e the truck home at night. The truck was parked in the co mpany yard for about two weeks after the accident before the deputies removed it. During that time, defendant drove his personal truck, which had recently been painted. Peters on testified that the truck in the videos resembled the truck assigned to defendant. Peterson’s only active construction job at that time was in Chino, not in Big Bear. The work truck was a 2002 Chevrolet 2500 HD, double cab. A piece of plastic was embedded in the front bumper, which also had a scuff mark with a paint transfer matching the bicycle. The truck’s rear pass enger side wheel was scraped on the upper7 left edge. The undercarriage of the truck showed fresh fingerprints. Based on all the physical evidence, the investigator’s opini on was that Vega was pinned upright by the truck for about 32 feet before Vega and th e bicycle fell beneath the undercarriage and onto the road. The failure to stop after firs t hitting Vega created a high risk of death or great bodily injury. The deputies concluded that defendant had committed multiple Vehicle Code violations: traveling outside the lane (V eh. Code, § 21658, su bd. (a)); following too closely (Veh. Code, § 21703); unsafe lane change (Veh. Co de, § 22107); failure to pass safely (Veh. Code, § 21750); and traveling at an unsafe speed. (Veh. Code, § 22350.) The deputies believed the white truck was follo wing too closely when making a right turn on Ramona, hit the bicyclist, and failed to stop, causing the accident. On crossexamination, the investigator agreed that th e tire friction mark bega n within the distance provided for the lefthand turn pocket. and was about nine feet from th e curb, and that the driver was driving toward the setting sun. Th e investigator could no t establish the truck’s speed but the investigator’s observations were consistent with a driver not seeing the bicyclist in front of him. Defendant had a history of Ve hicle Code violations: ru nning a red light in 2001 (Veh. Code, § 21453, subd. (a)); making an ille gal turn against a red light in 2002 (Veh. Code, § 21453, subd. (b)); vi olating the basic speed law and exceeding the speed limit in 2002 and 2003 (Veh. Code, §§ 22349, 22350; driving under th e influence in 2005 (Veh.8 Code, § 23152); and driv ing with a suspended license in 2006. (Veh. Code, § 14601.2, subd. (a).) At the end of the preliminary hearing, th e magistrate held defendant to answer on count 2, leaving the scene of a collision (Veh. Code, § 20001, subd. (a)) and the great bodily injury enhancement. (§ 12020.7.) The court also found there was no evidence of gross negligence and therefore defendant was held to answer only for vehicular manslaughter without gross neglig ence. (§ 192, subd. (c)(2).) B. The Information The information, which was filed after th e preliminary hearing, charged defendant with count 1—driving a vehicle with gross ne gligence, including fleeing the scene of a crime (Pen. Code, § 192, subd. (c)(1), and Ve h. Code, § 20001, subd. (c))—and count 2—leaving the scene of a collision, including personally inflicting great bodily injury. (Veh. Code, § 20001, subd. (a), and Pen. Code, § 12022.7, subd. (a).) Both counts were subject to a special allegation that they were serious or violent fe lonies. (Pen. Code, § 1170, subd. (h)(3).) C. Section 995 Motion Defendant filed a motion to set asid e the information under section 995, challenging count 1 and the great bodily inju ry allegation on count 2. Defendant argued the magistrate had made binding factual fi ndings about gross neg ligence and, in the alternative, there was no evid ence of gross negligence and insufficient evidence of the great bodily injury enhancement.9 In opposition, the People argued the magistrate did not make express factual findings and only reached legal conclusions. Additionally, there wa s sufficient evidence of gross negligence and great bodily injury. The trial court agreed the magistrate had not made binding factual findings but then found there was insuffici ent evidence of gro ss negligence. The trial court granted the motion as to count 1 and de nied the motion as to the grea t bodily injury enhancement
on count 2.
III STANDARDS OF REVIEW
In People v. Jones (1998) 17 Cal.4th 279, 301, the California Supreme Court explained the standard of appellate review of a trial court’s ruling on a section 995 motion, quoting People v. Laiwa (1983) 34 Cal.3d 711: “‘[I]n proceedings under section 995 it is the magistrate who is the finder of fact; the superior court has none of the foregoing powers, and sits me rely as a reviewing court; it must draw every legitimate inference in favor of the information, and cannot substitute its judgment as to the credibility or weight of the evid ence for that of the magistrate . [Citation.] On review by appeal . . . the appellate court in effect di sregards the ruling of the superior court and directly reviews the determination of the ma gistrate holding the de fendant to answer.’ ( Id. at p. 718.)” The reviewing court is bound by the magistrate’s express findings of fact if supported by substantial evidence but no t the magistrate’s legal conclusions if erroneous. ( People v. Slaughter (1984) 35 Cal.3d 629, 633, 639-640.)10 “[T]he showing required at a prelimin ary hearing is exceedingly low” unless “there is a total absence of evidence.” ( Salazar v. Superior Court (2000) 83 Cal.App.4th 840, 846.) Furthermore, “[a]n information will not be set as ide or a prosecution thereon prohibited if there is some rational ground fo r assuming the possibility that an offense has been committed and the accused is guilty of it . [Citations.] [¶] A reviewing court may not substitute its judgment as to the weight of the evidence for that of the magistrate, and, if there is some evidence to support the information, the c ourt will not inquire into its sufficiency. [Citations.] Ev ery legitimate inference that may be drawn from the evidence must be drawn in favor of the information.” ( Rideout v. Superior Court (1967) 67 Cal.2d 471, 474.) Finally, “‘[W]hen a district attorney files an informa tion in the superior court, containing an offense not included in the commi tment order signed by the magistrate who conducted the preliminary examin ation on the initial complaint, the court must uphold the information if the evid ence adduced at the preliminary hear ing is sufficient to support the new or additional charge [citation].’ ( People v. McKee (1968) 267 Cal.App.2d 509, 514.)” ( People v. Barba (2012) 211 Cal.App.4th 214, 227; § 739.)
IV VEHICULAR MANSLAUGHTER WITH GROSS NEGLIGENCE The People contend there is sufficient ev idence to charge defendant with gross vehicular manslaughter in vi olation of section 192, subdi vision (c)(1). Section 192, subdivision (c)(1), defines felo ny vehicular manslaughter as “driving a vehicle in the11 commission of an unlawful act, not amounti ng to felony, and with gross negligence; or driving a vehicle in the commission of a lawf ul act which might produce death, in an unlawful manner, and with gross negligence.” The meaning of gross negligence has been explained many times. People v.
Bennett (1991) 54 Cal.3d 1032, 1036, asserts: “Gross negligence is the exercise of so slight a degree of care as to raise a pres umption of conscious indifference to the consequences. [Citation.] ‘The state of mind of a person who acts with conscious indifferences to the consequences is simply, “I don’t care what happens.”’ [Citation.] The test is objective: whet her a reasonable person in the defendant’s positi on would have been aware of the risk invo lved. [Citation.]” Gross negligence does not include “inattention, mistaken judgment , or misadventure . . . .” ( Id. at p. 1037, fn. 3.) Gross negligence involves aggravated , reckless, or flagrant di sregard for human life, or indifference to consequences of one’s conduct. ( People v. Thompson (2000) 79 Cal.App.4th 40, 54.) Put another way, gross negligence occurs when the defendant’s acts are such a departure from what would be the conduct of “‘“an ordinarily prudent or careful [person] under the same circumstances as to be incompatible with a proper regard for human life, or, in other words, a disregard of human lif e or an indifference to consequences.”’ [Citations.]” ( People v. Alonzo (1993) 13 Cal.App.4th 535, 540.) “‘The facts must be such that the fatal consequence of the negligen t act could reasonably have been foreseen.’ [Citations.]” ( People v. Clem (2000) 78 Cal.App.4t h 346, 352, quoting People v. Penny12 (1955) 44 Cal.2d 861, 880; see also People v. Odom (1991) 226 Cal.App. 3d 1028, 1032.) “[G]ross negligence required to convict a defenda nt of gross vehicular manslaughter . . . may be based on the overall circum stances surrounding the fatality.” ( People v. Bennett,

supra , 54 Cal.3d at p. 1040.) A number of cases have addressed grossl y negligent vehicular manslaughter. In People v. Leitgeb (1947) 77 Cal.App.2d 764, 769, [cited with approval in People v. Bennett, supra, 54 Cal.3d at p. 1039], in which the jury found gr oss negligence: “[D]efendant was driving his car at 40 mile s an hour, veered acro ss a corner of, and struck decedent in, the safe ty zone. According to his own testimony, he did not see decedent until the in stant he struck him. There was no evidence whatever as to any circumstance that would have made it necessary for defendant to inva de the safety zone, nor was there any evidence of any obstructio n in the street, or other condition which would have prevented defendant' s seeing decedent standing in the safety zone. The corner was sufficiently lighted fo r other witnesses to see objects in the street.” The Leitgeb appellate court agreed with the jury: “Not only was the conclusion of the jury a reasonable one, but in our opinion it was the more reasonable. There is not the least doubt in our minds that upon the state of facts which formed the basis of the verdict, appellant was guilty of gross negligence. Ev en if he had been dr iving at 25 miles an hour, as he claimed, our conclusion woul d be the same. It appears from his own testimony that he was driving past the safe ty zone at a speed which placed all the responsibility for avoiding injury upon persons who might be occupying the street at that13 point. He was not slowing do wn, nor did he have control of the car that would have enabled him to stop quickly if it should become neces sary to do so in order to avoid an accident. He should have been especially cautious in appr oaching the safety zone and should have anticipated the presence of persons waiting for a car. He did not do this, but took a chance that no pedestrian would get in his way. His failure to see the pedestrian was unexplained. There are, of course, conditi ons in which it is diff icult for motorists to see pedestrians on the streets, but the cond itions here were not shown to have been unusual, and the only reasonabl e explanation of defendant's fa ilure to see the decedent is that he was not exercising even the slightest degree of care.” ( People v. Leitgeb, supra, 77 Cal.App.2d at pp. 769-770.) Following Leitgeb was a case involving a driver wh o hit a group of 10 people gathered in a crosswalk respondi ng to the victim of an earlier accident: “It is unnecessary to review the evidence for the purpose of po inting out wherein it was sufficient to justify a finding that defendant was not driving in the exercise of ordinary care or in the fulfillment of her duties as define d in the instructions. It is not surprising that the jury determined from the evid ence that in causing the death of three people and injury to seven others, defendant was not driving with the care usually exercised by persons of ordinary prudence and caution. There was nothi ng to obstruct her vision or to excuse her failure to see the crowd in the street ahead of her. It was an inescapable conclusion that she failed to see them in time to avoid them only beca use she was paying little or no14 attention to what lay ahead of her.” ( People v. Wilson (1947) 78 Cal.App.2d 108, 118- 119.) Another case citing Leitgeb held: “And where a driver did not see his victim until the instant of impact or not at all, he is guilty of gross neglig ence or of an entire indifference to those who were using the str eet or highway simultaneously with him. ( People v. Leitgeb , 77 Cal.App.2d 764, 769.) “. . . There is no fact proved or theory pr oposed in the record of the instant cause that could reasonably warrant an inference of appellant’s freedom from gross negligence. He drove his coupe in the night on a residence and business street at a speed greater than was reasonable and prudent, to wit, in excess of 50 miles an hour. By reason of his having thereby killed a person without malice and while committing such lawless act he is guilty of involuntary manslaughter unde r section 192 of the Penal Code.” ( People v. Flores (1947) 83 Cal.App.2d 11, 14.) Inattention was also held to constitute gross negligence in People v. Pfeffer (1964) 224 Cal.App.2d 578, 581: “The course of ac tion followed by the defendant at the time in question demonstrates a comple te failure on his part to exercise any care and shows a conscious indifference to the consequences which might follow going through a red signal light at high speed—he obviously had no control over his car and seemingly cared nothing at all for the right of way of othe rs upon the road at the time—he exercised no vigilance and seemingly did no t anticipate that there might well be automobiles with passengers therein traveling on Willow Stre et across Lakewood with the green signal15 lights. If there was anything present to obstruct the view of appellant, or any excuse at all for that matter, we have not heard of it fro m the appellant or any witness who observed what occurred. Driving at exce ssive speed, taking chances at an intersection, inattention to driving or similar acts, coupled with ot her circumstances as here present constitutes gross negligence.” CALCRIM No. 592 tracks the statute and case law concerning gross vehicular manslaughter. The People must prove that, while driving a vehicle defendant committed with gross negligence a misdemeanor or infraction or ot herwise lawful act that might cause death and the defendant’s grossly neg ligent conduct caused the death of another
person:

“ Gross negligence involves more than ordinary carelessness, inattention, or mistake in judgment. A person acts with gross negligence when: “1 He or she acts in a reckless way that cr eates a high risk of death or great bodily injury;
“AND “2 A reasonable person would have know n that acting in that way would create such a risk. “In other words, a person acts with gross ne gligence when the way he or she acts is so different from how an ordinarily carefu l person would act in th e same situation that his or her act amounts to disregard for human life or indifference to the consequences of that act.”16 In its simplest phrasing, defendant’s ar gument is that his conduct was ordinary negligence because there is no evidence he saw the bicyclist before he hit him or that defendant realized he had h it the bicyclist and continued without stopping. Although defendant’s interpretation of the evidence may be plausible, another equally reasonable interpretation of the evidence is defendant was driving r ecklessly when he started to make his right turn from Foothill to Ramona and he disregarded the bicyclist on his right even though nothing obstructed his view. This is not a situation in which a driver was fiddling with the radio, or even inexplicably inattentiv e, causing him or her to hit someon e. In such a case, the driver reasonably could be expected to stop immedi ately and to render assistance and report the accident. Instead, this case involves a driver wh o demonstrated little regard for the safety of the victim, as shown by his conduct befo re and after the accident, as well as the evidence developed during the investigation. The circumstances fit the criteria for gr oss negligence desc ribed above. The evidence showed that the right lane was twice as wide as the left lane on Foothill, providing enough room for a wide, unmarked bike lane next to the curb. It was still daylight and there were no obs tructions to a driver’s line of sight. The bicyclist was struck near the beginning of the place where it is likely the truck would have begun to turn right and the bicyclist was dragged some distance and dropped be side the curb. The testimony that there were no skid marks create d a reasonable inference that defendant did not see the bicyclist before hitting him and made no effort to stop afterwards. Even if17 defendant was not speeding, he committed numerous code viola tions: following too closely, making an unsafe lane change, and failing to pass safely. (Veh. Code, §§ 21703, 21750, and 22017.) Based on the investigator’s conclusions, a jury could reasonably infer defendant was driving adjacent to the unmarked bike lane, making him res ponsible for avoiding injury. The ju ry could find the driver sh ould have been especia lly cautious and noticed the presence of a cyclist. Even if it was diffi cult to see a cyclist, the road conditions here were not unusual. A jury could find the only reasonable explanation for defendant’s failure to see the decedent is that he was not exercising due care. It was a reasonable conclusion that defendant hit and dragged the victim becaus e he was paying little or no attention to what lay ahead of him. Other circumstances that have a bearing on a charge of gross negligence is that defendant did not stop and conti nued to drag the victim some distance. Additionally, he fled the scene and tried to cover up his invol vement. His conduct after hitting the cyclist contributed to a finding of conscious indiffe rence: “‘The state of mind of a person who acts with conscious indifferences to the cons equences is simply, “I don’t care what happens.”’ ( People v. Olivas (1985) 172 Cal.App.3d 984, 988.)” ( People v. Bennett,

supra, 54 Cal.3d at p. 1036.) Therefore, a jury could reasonably determin e, based on the People’s evidence, that defendant did not heed the bi cyclist for reasons that exce eded “ordinary carelessness, inattention, or mistake in ju dgment” and constituted recklessne ss or conscious disregard.18 Based on the totality of the circumstances surrounding the accident, the jury could reasonably conclude de fendant was driving with indiffere nce or conscious disregard for the consequences of his actions. ( Ibid. ) As a result, we conc lude sufficient evidence could allow a rational trier of fact to find that defendant acted w ith gross negligence. Defendant argues that the cases cited by th e People all involved drivers engaging in much more egregious and reckless behavior than his actions in this case. Defendant asserts there is no evidence of grossly neg ligent conduct because no witness saw him speeding or driving recklessly and dangerousl y. However, we cannot say—as a matter of law—that a jury would be unreasonable in finding that defendant ’s actions constituted gross negligence. At this stage of the pr oceedings, when the showing required for a charge is “exceedingly low,” there is not a “total absence of evidence.” ( Salazar v. Superior Court, supra, 83 Cal.App.4th at p. 846.) As a result, we conclude that, based on the legitimate inferences that may be drawn by the evidence, sufficien t evidence supports charging defendant with vehicular manslaughter with gross negligence in violation of section 192, subdivision (c)(1). ( Rideout v. Superior Court, supra, 67 Cal.2d at p. 474.)
V DISPOSITION We reverse the trial court’s order setti ng aside count 1 of the information and19 direct the court to reinstate the charge of gross vehicular manslaughter. (§ 192, subd. (c)(1).)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS CODRINGTON J.
We concur:

RAMIREZ P. J.

KING J.