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Filed 11/28/22 P. v. Hyce CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

RAUL ALAN HYCE,

Defendant and Appellant.

C092322

(Super. Ct. No. 16FE022561)

Defendant Raul Alan Hyce contends there was insufficient evidence to support the 

jury’s finding that, in committing vehicular manslaughter while speeding through a red 

light, he acted with gross, as opposed to ordinary, negligence.

In supplemental briefing, the parties agree Senate Bill No. 567 (2021-2022 Reg. 

Sess.) (Senate Bill No. 567) warrants remand for reconsideration of defendant’s upper 

term sentence. We agree with the parties and remand for resentencing and correction of a 

clerical error.
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FACTUAL AND PROCEDURAL BACKGROUND

In October 2016, defendant was driving at speeds of approximately 53 to 55 miles 

per hour in a zone with a speed limit of 30-miles-per-hour Defendant ran a red light,

struck the victim’s car, and killed her. He did not brake or change direction before the 

crash. Defendant had suffered a concussion from the collision; he fled the scene of the 

accident.

Defendant was charged with gross vehicular manslaughter (Pen. Code, § 192, 

subd. (c)(1); count one)1 while running a red light and driving at an unsafe speed in 

violation of the basic speed law (Veh. Code, §§ 21453, subd. (a), 22350); vehicular 

manslaughter while intoxicated (§ 191.5, subd. (b); count two); and leaving the scene of 

an accident resulting in injury to a person without assisting the victim or reporting the 

accident to police (Veh. Code, § 20001, subd. (b)(2); count three).

At trial, Detective William Connor, who investigated the accident, testified as to 

his conclusion that, leading up to the crash, defendant violated the basic speed law. 

According to Detective Connor, surveillance video showed that “several other vehicles 

[were] driving in that same path of travel and they were going at a significantly slower 

speed than [defendant’s] pickup truck. All of the other vehicles were going slower than 

the pickup truck in that area. And they were all going at approximately what I would 

then assume to be the speed limit, although I’m not able to put a number on those speeds 

that way.” He further testified that entering an intersection against a red light is unsafe at 

any speed. An eyewitness who was a commercial trucker testified he became alarmed

when he saw defendant driving “super fast” as he came “smashing through” the red light. 

The jury was given an instruction on the basic speed law which stated: “The 

speed of travel, alone, does not establish whether a person did or did not violate the basic 

1

 Further undesignated statutory references are to the Penal Code.
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speed law. When determining whether the defendant violated the basic speed law, 

consider not only the speed, but also all the surrounding conditions known by the 

defendant and also what a reasonable person would have considered a safe rate of travel 

given those conditions.” (CALCRIM No. 595.)

The jury found defendant guilty on counts one and three, and not guilty on count 

two. 

The presentencing probation report set forth defendant’s criminal history as 

including the following: In 1984, the juvenile defendant was convicted of stealing a car 

and leaving the scene of an accident resulting only in damage to property (§ 484; Veh. 

Code, §§ 20002) and of first degree murder with personal use of a gun in 1985 (§§ 187, 

subd. (a), 12022, subd. (a)). As an adult, he served a prison term for felony possession of 

a controlled substance in 1993. (Health & Saf. Code, § 11378.) He was also convicted 

of several misdemeanors, including alcohol-related reckless driving in 1997 (Veh. Code, 

§ 23103.5), driving under the influence of alcohol twice in 2001 and again in 2012 (id., § 

23152), driving without a license and leaving the scene of an accident resulting only in 

damage to property in 2015 (id., §§ 14601, 20002), and violating the basic speed law in 

2017. 

As a result of the 2015 offense, defendant was serving his fifth grant of informal 

probation, a three-year term, when he killed the victim. In recommending that defendant 

be denied probation, the report noted under California Rules of Court, rule 4.421 that 

defendant’s prior convictions as an adult and sustained petitions in juvenile delinquency 

proceedings were numerous (id., (b)(2)), he served a prior prison term (id., (b)(3)), was 

on informal probation when the crime was committed (id., (b)(4)), and his prior

performance on parole appeared to have been unsatisfactory (id., (b)(5)). None of these 

aggravating factors were pleaded and presented to the jury or the court for adjudication 

beyond a reasonable doubt. The probation report recommended sentencing defendant to 
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the upper term for gross vehicular manslaughter because his prior convictions were 

numerous and there were no mitigating circumstances. 

In July 2020, the trial court denied probation and sentenced defendant to the upper 

term of six years on count one and a consecutive one year (one-third the midterm) on 

count three. The court selected the upper term based on defendant’s prior prison term 

(Cal. Rules of Court, rule 4.421(b)(3)) and the fact that defendant was on probation when 

he committed the offense (id., (b)(4)), with no additional evidence presented at the 

sentencing hearing. 

Defendant timely appealed; after multiple granted requests by defendant to 

continue the briefing schedule, as well as delays for record augmentation, the case was 

initially fully briefed on May 16, 2022. We requested supplemental briefing on Senate 

Bill No. 567 as applied to defendant; that briefing was completed on August 2, 2022, and 

the case was assigned to this panel as presently constituted on September 26, 2022. 

Defendant requested argument and the matter was heard on November 16, 2022.

DISCUSSION

I

Sufficiency of the Evidence

Defendant contends the evidence is insufficient to support the jury’s finding he 

acted with gross negligence. Defendant argues that his driving was neither erratic nor 

egregious; that running the red light reflected, at most, momentary inattentiveness; and 

that the prosecution failed to meet its burden on the other predicate offense, the basic 

speed law, which provides: “No person shall drive a vehicle upon a highway at a speed 

greater than is reasonable or prudent having due regard for . . . the traffic on . . . the 

highway, and in no event at a speed which endangers the safety of persons or property.” 

(Veh. Code, § 22350.) Defendant argues the prosecution, in effect, relied on the 
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uncharged infraction of driving in excess of the posted speed limit. (Id., §§ 22351 & 

22352.) 

“In a sufficiency of the evidence claim, a reviewing court determines whether a 

rational fact finder could have concluded defendant was guilty beyond a reasonable 

doubt. [Citation.] ‘Reversal on this ground is unwarranted unless it appears “that upon 

no hypothesis whatever is there sufficient substantial evidence to support [the 

conviction].” [Citation.]’ [Citation.] Evidence is substantial when it is reasonable in 

nature, credible, and of solid value. [Citation.] We consider the evidence, including the 

reasonable inferences drawn from the evidence, in the light most favorable to the 

judgment. [Citation.] [¶] ‘[T]he finding of an operator’s gross negligence in driving a 

motorcar, when supported by substantial evidence, is conclusive upon the reviewing 

court and can be reversed only when that court becomes convinced by the evidence that 

freedom from gross negligence was so clearly established that reasonable minds could 

not differ upon the question.’ ” (People v. Nicolas (2017) 8 Cal.App.5th 1165, 1171.)

Gross vehicular manslaughter is defined, in relevant part, as “driving a vehicle in 

the commission of an unlawful act, not amounting to a felony, and with gross 

negligence.” (§ 192, subd. (c)(1).) “[T]he offense which constitutes the ‘unlawful act’ 

need not be an inherently dangerous misdemeanor or infraction. Rather, to be an 

‘unlawful act’ within the meaning of section 192(c)(1), the offense must be dangerous 

under the circumstances of its commission.” (People v. Wells (1996) 12 Cal.4th 979, 

982, fn. omitted.) Here, defendant was found guilty of two predicate offenses: running a 

red light (Veh. Code, § 21453, subd. (a)) and violating the basic speed law (id., § 22350).

“Gross negligence is the exercise of so slight a degree of care as to raise a 

presumption of conscious indifference to the consequences.” “The test is objective: 

whether a reasonable person in the defendant’s position would have been aware of the 

risk involved.” (People v. Bennett (1991) 54 Cal.3d 1032, 1036.) A finding of gross 
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negligence “may be based on the overall circumstances surrounding the fatality.” (Id. at 

p. 1040.)

Evidence that defendant drove at an excessive speed, ran a red light, and made no 

attempt to avoid a collision supports the conclusion defendant acted with a conscious 

indifference to the consequences. In People v. Eagles (1982) 133 Cal.App.3d 330, the 

court upheld the jury’s finding of gross negligence where the defendant was “traveling at 

speeds far in excess of the posted speed limit”--55 to 65 miles per hour in an area with a 

35-mile-per-hour speed limit--and “did not attempt to stop at the red light.” The court 

concluded, “[w]e can hardly imagine a more compelling showing of gross negligence.” 

(Id. at p. 338, citing People v. Pfeffer (1964) 224 Cal.App.2d 578, 580-581.) In People v. 

Leitgeb (1947) 77 Cal.App.2d 764, the court did not harbor “the least doubt . . . appellant 

was guilty of gross negligence” when he veered across a corner at a speed of 25 to 40 

miles per hour and hit a victim standing in a street car safety zone; he “was not slowing 

down, nor did he have control of the car that would have enabled him to stop quickly if it 

should become necessary to do so in order to avoid an accident.” (Id. at p. 769.)

Viewed in the light most favorable to the judgment, substantial evidence supports 

the jury’s conclusion here that defendant acted with gross negligence. Detective Connor 

testified not just that defendant violated the speed limit but that he drove significantly 

faster than surrounding vehicles, which in Detective Connor’s opinion was unsafe under 

the circumstances. This testimony was corroborated by the commercial truck driver who 

saw defendant driving “super fast” as he “smash[ed] through” the red light. Detective 

Connor also opined that entering the intersection against the red light was unsafe at any 

speed. The jury was entitled to consider “the manner in which the defendant operated the 

vehicle, that is, the overall circumstances (rather than the mere fact) of the traffic law 

violation.” (People v. Von Staden (1987) 195 Cal.App.3d 1423, 1427.) Thus, substantial 

evidence supports the jury’s conclusion defendant also violated the basic speed law. A 

reasonable person in defendant’s position would have been aware that speeding creates a 
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high risk of death or great bodily injury by making it more difficult to recognize and 

respond safely to traffic conditions as they arise. This disregard for the safety of others, 

together with his inattention to the red light and victim’s car as it entered the intersection, 

demonstrates defendant exercised so slight a degree of care as to rise to the level of 

conscious indifference.2 That defendant’s driving could have been more egregiously 

unsafe does not persuade us otherwise. 

Accordingly, we reject defendant’s insufficiency of the evidence claim.

II

Upper Term

In supplemental briefing, the parties agree Senate Bill No. 567’s changes to triad 

sentencing guidelines warrant remand for resentencing of defendant’s upper term. 

Under Senate Bill No. 567, a trial court “may impose a sentence exceeding the 

middle term only when there are circumstances in aggravation of the crime that justify 

the imposition of a term of imprisonment exceeding the middle term, and the facts 

underlying those circumstances have been stipulated to by the defendant, or have been 

found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial.” 

(§ 1170, subd. (b)(2).) Additionally, “the court may consider the defendant’s prior 

convictions in determining sentencing based on a certified record of conviction without 

submitting the prior convictions to a jury.” (§ 1170, subd. (b)(3).)

We agree with the parties that Senate Bill No. 567’s amendments to section 1170, 

subdivision (b) are ameliorative and, under In re Estrada (1965) 63 Cal.2d 740, apply 

retroactively to defendant’s nonfinal judgment. (People v. Zabelle (2022) 80 Cal.App.5th 

2

 At oral argument, defendant’s appellate counsel requested an opportunity to 

supplementally brief the issue of whether defendant’s postaccident conduct could 

properly be considered as evidence of gross negligence at the time of the accident. 

Because we do not consider defendant’s postaccident conduct in our analysis of the 

sufficiency of the evidence as to gross negligence, we deny the request for briefing.
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1098, 1108-1109.) We also agree that the trial court, by relying on circumstances in 

aggravation that were not stipulated to, found true by a jury, or proven by certified 

records, imposed defendant’s upper term sentence in a manner that no longer complies 

with newly amended section 1170, subdivision (b).

Although in declining to accept the Attorney General’s concession, our dissenting 

colleague notes that defendant’s briefing at sentencing “disputed only an aggravating 

factor not relied on by the” trial court, whether defense counsel’s briefing also relied on 

the accuracy of the probation report is not the issue here. At issue is whether the trial 

court relied on the unproven allegations in the report, which it clearly did here, and as it 

was permitted to do at the time of sentencing. Various statements and omissions in 

counsel’s briefing and argument do not constitute the proof now required to impose an 

upper term sentence under the new legislation, particularly when, as here, defendant’s 

incentive and opportunity to contest the probation report “were not necessarily the same 

as they would have been had the aggravating circumstances been tried to a jury.” 

(People v. Sandoval (2007) 41 Cal.4th 825, 839.) Further, “[i]f the record is insufficient 

to support a trial court’s findings about a defendant’s criminal history, we will not 

presume the existence of extrarecord materials, however likely they are to exist, to 

address this insufficiency.” (People v. Zabelle, supra, 80 Cal.App.5th at p. 1115, fn. 6.) 

Given the trial court’s now-improper reliance on the information contained only in the 

probation report and the Attorney General’s concession that remand is appropriate, we 

will remand the matter for a full resentencing.

III

Clerical Error

We note the abstract of judgment erroneously indicates defendant’s conviction on 

count three was for a violation of Vehicle Code section 20002, subdivision (b)(2), rather 

than Vehicle Code section 20001, subdivision (b)(2), as reflected in the oral 
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pronouncement of judgment and the minutes. (See People v. Mitchell (2001) 26 Cal.4th 

181, 185.) On remand, the trial court should correct this error. 

DISPOSITION

The case is remanded for resentencing as described by this opinion; the judgment 

is otherwise affirmed. The trial court is directed to ensure the new abstract of judgment 

properly reflects defendant’s conviction on count three. (Veh. Code, § 20001, subd. 

(b)(2).) 

 /s/

Duarte, J.

I concur:

 /s/

Hoch, J.
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HULL, J., Concurring and Dissenting.

I concur in Parts I and III of the majority opinion. As to Part II, I dissent. As to 

Part II, I find any error by the trial court in sentencing defendant to the upper term of 

imprisonment which “error” was brought about by the Legislature’s changes in the law 

subsequent to the original sentencing in this matter to be harmless. I would affirm the 

judgment and sentence.

Notwithstanding the Attorney General’s concession, I find the error harmless 

under the two-step analysis set forth in Zabelle: (1) whether the court could impose the 

upper term under the Sixth Amendment; and (2) whether the court would impose the term 

under Penal Code section 1170. (People v. Zabelle (2022) 80 Cal.App.5th 1098, 1112 

(Zabelle).) I review the first question under the standard described in Chapman v. 

California (1967) 386 U.S. 18 and the second under the standard described in People v. 

Watson (1956) 46 Cal.2d 818. (Zabelle, at pp. 1112-1113.) 

Here, the trial court relied on two aggravating circumstances in imposing the 

upper term: defendant’s prior prison term and the fact that the instant offense was 

committed while defendant was on probation. I am mindful that defendant’s incentive 

and opportunity to contest the probation report “were not necessarily the same as they 

would have been had the aggravating circumstances been tried to a jury.” (People v. 

Sandoval (2007) 41 Cal.4th 825, 839.) Furthermore, “[i]f the record is insufficient to 

support a trial court’s findings about a defendant’s criminal history, [I] will not presume 

the existence of extrarecord materials, however likely they are to exist, to address this 

insufficiency.” (Zabelle, supra, 80 Cal.App.5th at p. 1115, fn. 6.) In this case, however, 

the aggravating factors at issue and absence of mitigating factors were affirmatively 

acknowledged as accurate in defendant’s briefing, which disputed only an aggravating 

factor not relied on by the court. The underlying accuracy of the factors was again 

affirmed during the sentencing hearing wherein defense counsel argued against 

imposition of the upper term because defendant’s adult criminal history consisted of 
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seven misdemeanors—leading to defendant’s most recent term of probation for yet 

another vehicular offense the year before he killed the victim—and a felony conviction 

that was nearly 25 years old. Neither factor rested on “a somewhat vague or subjective 

standard” (People v. Sandoval, supra, 41 Cal.4th at p. 840), suggesting any possibility a 

jury would arrive at a different assessment. On this record, I have no doubt that a jury 

would have found true beyond a reasonable doubt the aggravating circumstances the 

court relied on. (Id. at p. 839.) Under the Sixth Amendment, therefore, the court could

impose the upper term. And because the court did not consider improper factors, I see no 

reasonable probability that it would select a lesser term on remand. (See Zabelle, supra,

80 Cal.App.5th at p. 1113.) 

Therefore, the trial court’s reliance on aggravating factors in a manner 

retroactively rendered error by Senate Bill No. 567 (2021-2022 Reg. Sess.; Stats. 

2021, ch. 731) was harmless. 

 /s/

HULL, Acting P.J.