Filed 3/27/13 P. v. Camacho CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

THE PEOPLE,
Plaintiff and Respondent,

v.
ROBERTO CAMACHO,
Defendant and Appellant. B239570
(Los Angeles County Super. Ct. No. TA107670)

APPEAL from a judgment of the Superior Court of the County of Los Angeles, Laura R. Walton, Judge. Affirmed. Christopher Nalls, under appointment by the Court of Appeal , for Defendant and Appellant. No appearance for Plaintiff and Respondent.2 INTRODUCTION

Following trial, a jury found defendant and appellant Roberto Camacho (defendant) guilty of gross vehicular manslaught er and fleeing the scene of an accident. On appeal, his appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 ( Wende ) requesting that this court independ ently review the entire record to determine if there are any issues, which if resolved in defendant’s favor, would require reversal or modification of the judgment. Accordingly, we notified defendant that he could brief any grounds of appeal , contentions, or arguments he wanted us to consider. In a response, defendant subm itted a supplemental brief c ontending that under Penal Code section 1181, subdivision 8, 1 we should reduce his gross vehicular manslaughter
conviction because the ev idence was insufficient to support a finding that he acted with the requisite recklessness. He also requests that we appoint new counsel to brief several additional issues on appeal. Based on our review of defendant’s suppl emental brief and the entire record, we hold that the jury’s finding that defendant acted with the requi site recklessness was supported by substantial evid ence and therefore deny defendant’s motion to reduce his sentence. We also deny defendant’s request to appoint new counsel on appeal because he provides no showing of good cause or authority.

FACTUAL BACKGROUND 2

On June 7, 2009, at approximately 1:00 a.m., Itziar Romo was driving near the intersection of Atlantic Avenue (Atlantic) a nd Martin Luther King, Jr. Boulevard (Martin

1 All further statutory references are to the Penal Code, unless otherwise indicated.

2 Under the applicable substantial evidence standard of review discussed below, we state only the facts that supported the guilty verdict on the gross vehicular manslaughter charge.3 Luther King). Her husband, Raul, was in the front passenger seat. 3 She was driving
northbound on Atlantic toward Ma rtin Luther King. There was a 7-Eleven store on her right and a Chevron gas station on her left. She noticed a black and white police patrol car in the parking lot of the 7-Eleven. After Itziar passed through the intersection at Martin Luther King, she noticed a maroon van traveling in the opposite direc tion on Atlantic. She was traveling at approximately 40 to 45 miles per hour. The speed of the van caught her attention. She estimated that it was traveling 90 to 100 miles per hour when it passed her. 4 As the van passed, it made a loud “vroom” sound. The speed of the van shocked her. She saw two
men in the front seats of the van. She told her husband, “Tha t guy’s going to kill somebody” and “Little does he know th at there’s a cop right there.” In her rearview mirror, Itziar saw the va n enter the intersection at Martin Luther King traveling 90 to 100 miles per hour an d then saw an “explosion.” According to Itziar, the traffic light was red when the van entered the intersection. After she saw the collision, Itziar made a u- turn and went to the accident site. The car that had been struck by th e van was “split in half,” with one half in the middle of the
intersection and the other half near the Chevro n station. She saw a man still conscious in
the front half of the car. She also saw the van in the intersection. In addition, she observed a police officer holding a man on th e ground and saw a shadowy figure run
from the driver’s side of the van across the street. On the morning of the collision, Raul was riding in the passenger seat of a car being driven by his wife, Itzi ar. They were traveling on Atlantic near the intersection with Martin Luther King. On the right side of Atlantic, Raul saw a 7-Eleven store. After Raul’s car passed through the inte rsection, he noticed a van “going pretty fast.” When the van passed, Raul could feel “t he wind . . . pretty hard.” Raul’s car was

3 For clarity, we refer to Itziar Romo and Raul Romo by their first names.

4 An investigating officer testified that the speed limit for that portion of Atlantic Avenue was 35 miles per hour.4 traveling at 45 or 50 miles per hour and he estim ated that the van was traveling as fast as 90 miles per hour. As soon as the van passed, Raul heard It ziar say “Little does he know there’s a cop waiting for him” and “He’s going to kill somebody.” Raul di dn’t see the collision, but
turned around when his wife said, “I think he killed some body,” and saw smoke and “a
bunch of dust.”
Raul and Itziar made a u-turn and when they arrived at the intersection, Raul exited the car. He saw “the gentleman that passed away” 5 in one-half of a car in the
middle of the intersection. On June 7, 2009, at approximately 1:00 a.m., Los Angeles Coun ty Deputy Sheriff Paul Ocampo was on routine patrol near the in tersection of Atlantic and Martin Luther King. He pulled into a 7-Eleven store pa rking lot on the southeast corner of the
intersection at Atlantic and Martin Luther Ki ng. As he looked for a parking space, he glanced to his left and saw a burgundy colore d minivan driving sout h on Atlantic at a high rate of speed collide w ith a Honda. The van pushed the Honda south through the
intersection. The collision caused the Honda to “split apart.” The van skidded to a stop on Atlantic just south of Martin Luther King. As Deputy Ocampo drove toward the site of the collision, he saw defendant exit the driver’s side of the van. Defendant ap peared startled and shak en up. The deputy, who was 10 to 15 feet away from defendant, sa w defendant look at him and then run west toward a Chevron gas station. As Deputy Ocampo pursued him, defendant looked back at the deputy three or four times. Defendant , whose head was shaved, had a large tattoo
on the back of his head. Defendant ran thro ugh the Chevron station parking lot toward a wall which he scaled. The deputy made a radi o dispatch to his partners informing them that a suspect was fleeing from him.

5 A coroner testified that the driver of th e car struck by defenda nt’s van died of multiple blunt force injuries.5 Deputy Ocampo next noticed Alejandr o Salgado climbing out of the front passenger side of the van. Salgado was arrest ed and transported to the Sheriff’s station where he was interrogated. During the interrogation, Salgado provid ed the following information about the traffic collision. On the night before the tr affic collision, Salgado went to defendant’s house in Moorpark, ate with him and his family , and then picked up some girls. They drove to Los Patreros nightclub in Southgat e. As Salgado and defendant drove to the nightclub, they drank a twelve-pack of Pacifi co beer. At the club, they each drank ten
more beers. After about three hours of dr inking, they both were drunk and defendant asked Salgado to leave with him. In res ponse, Salgado said, “you’re fucking faded. You’re fucking drunk. Just wait.” Salgado also told defe ndant that he did not “even know [his] fucking way [home].” Nevertheless, Salgado entered defendant’s car, left the nightcl ub with defendant driving, and proceeded down At lantic Avenue. Salgado again advised that defendant did not know “where the hell [they] were going.” Defendant was traveling at least 45 miles pe r hour on Atlantic. At the intersection where the collision occurred, Salgado believe d the light was green and that the other driver also had a green light. Salgado specul ated that the other driver “probably thought
he could catch us before we went but we were probably co ming too fast for him.” The
other driver made a left turn and “met [the van] right at the wheels, boom.” According to Salgado, defendant’s dr iver’s side air bag deployed, but the passenger side bag did not. Defe ndant “got out of the car” and left the scene. Salgado tried to exit the van, but the front passenger do or would not open. As he tried to climb out of the window, a deputy arrived and to ld him not to run. Defendant was later apprehended.6 PROCEDURAL BACKGROUND

In an amended information, the Los An geles County District Attorney charged
defendant in count 1 with murder in violation of section 187, subdivision (a); in count 2 with gross vehicular manslaughter while int oxicated in violation of section 191.5, subdivision (a); in count 3 with driving under the influence ca using injury in violation of section 23153, subdivision (a); and in count 4 with leaving the scene of an accident in violation of Vehicle Code section 20001, subdiv ision (a). As to counts 1, 2, and 3, the District Attorney alleged that after committi ng those offenses, defendant fled the scene of the crime within the meaning of Vehicle Co de 20001, subdivision (c). The District Attorney also alleged that defendant suffered a prior conv iction for which he served a prior prison term within the meaning of section 667.5, subdivision (b) and suffered a prior conviction of a violent or serious felony within the meaning of sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i). Following trial, the jury found defendant guilty on co unt 2 of the lesser included offense of gross vehicular manslaughter in vi olation of section 192, subdivision (c)(1). The jury also found defendant guilty on count 4 of fleeing the scene of an accident. Because the jury was d eadlocked on counts 1 and 3, the tr ial court declared a mistrial as
to those two counts. Defenda nt admitted the prior prison te rm enhancement. The trial court then scheduled a pretrial conference as to counts 1 and 3 and continued sentencing
to the same date. Jury selection for the retrial on counts 1 and 3 commenced, but before the jury was empanelled, defendant entered into a plea ag reement pursuant to wh ich he agreed to admit an allegation that he fled the scene of the accident within the meaning of Vehicle Code section 20001, subdivision (c), which a llegation was added by in terlineation to the
amended information as to count 2. Pursuant to the plea agreement, the trial court sentenced defendant on count 2 to a term of eight years, comprised of a middle te rm three-year sentence, plus an additional consecutive five-year term pursuant to the Ve hicle Code section 20001, subdivision (c)7 enhancement. In addition, the trial cour t imposed a concurrent one-year term under section 667.5, subdivision (b). The trial court also imposed, but stayed, a four-year sentence on count 4. Pursuant to the plea ag reement, the trial cour t dismissed counts 1
and 3.

DISCUSSION

Defendant contends that his conviction on the gross vehi cular manslaughter charge required a showing that he drove recklessly a nd with conscious disregard of the risk of injury or death. According to defendant, because the evidence showed that he entered the intersection on a green light at a speed of no more than 45 miles per hour, it did not support a finding that he acted with the requis ite recklessness. He therefore requests that
we reduce his conviction on count 2 to negligent vehicular manslaughter.

A. Legal Principles Defendant’s request to reduce his gross ve hicular manslaughter conviction is made pursuant to section 1181. “[ S]ection 1181 does not confer upon this court the power to substitute its judgment as to choi ce of penalty for that of the trier of fact. We thus may not reduce a . . . defendant’s sentence . . . , unle ss that sentence is cont rary to the law or to the evidence, even if we were to disagree w ith the jury’s penalty determination. (E.g., People v. Hines [(1997)] 15 Cal.4th [997,] 1078-1080.) Rather, ‘[a]bsent prejudicial error or legal insufficien cy of evidence, this court must uphold the jury’s verdict . . . .’ ( Id. at p. 1080.)” ( People v. Jennings (2010) 50 Cal.4th 616, 687.) “[W]e ask whether ‘there is any substantial evidence, including all reasonable inferences to be drawn from the evidence, of the existence of each element of the offense charged.’ ( People v. Mendoza (2000) 24 Cal.4th 130, 175 [99 Cal.Rpt r.2d 485, 6 P.3d 150].) [¶] In assessing such a claim, we review the record ‘in the light most favorable to the judgment below to
determine whether it discloses substantia l evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the8 defendant guilty beyond a reasonable doubt.’ ( People v. Johnson (1980) 26 Cal.3d 557, 578 [162 Cal.Rptr. 431, 606 P.2d 738].) ‘The federal standard of review is to the same effect: Under principles of federal due proce ss, review for sufficien cy of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a r easonable doubt, but, instead, whether, after viewing the evidence in the light most favor able to the prosecution, any rational trier of fact could
have found the essential elements of th e crime beyond a reasonable doubt. ( Jackson v. Virginia [, supra ,] 443 U.S. 307, 317-320.)’ ( People v. Rodriguez (1999) 20 Cal.4th 1, 11 [82 Cal.Rptr.2d 413, 971 P.2d 618] ( Rodriguez ).) [¶] Moreover, as observed in Rodriguez : ‘The standard of review is the same in cases in which the prosecution relies mainly on circumstan tial evidence. ( People v. Stanley (1995) 10 Cal.4th 764, 792 [42 Cal.Rptr.2d 543, 897 P.2d 481].) “‘Althoug h it is the duty of th e jury to acquit a
defendant if it finds that circ umstantial evidence is susceptib le of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court[,] which must be convinced of the de fendant’s guilt beyond a reasonable doubt.

“‘ If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances mi ght also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment .’” [Citations.]’” [Citation.]’ ( Rodriguez, supra , 20 Cal.4th at p. 11, italics added; see generally People v.
Clark (2011) 52 Cal.4th 856, 942-943 [ 131 Cal.Rptr.3d 225, 261 P.3d 243] ( Clark ), and cases cited.)” ( People v. Watkins (2012) 55 Cal.4th 999, 1019-1020.) On count 2—gross vehicular manslaught er while intoxicated in violation of section 191.5, subdivision (a)—defendant was convicted of the lesser included offense of gross vehicular manslaughter in viola tion of section 192, subdivision (c) 6 which required

6 Section 192, subdivision (c) provides in pe rtinent part: “Manslaughter is the unlawful killing of a human being without mali ce. It is of three kinds: [¶ ] . . . [¶] (c) Vehicular—[¶] (1) Except as provided in subdivision (a) of Section 191.5, driving a vehicle in the commission of an unlawful ac t, not amounting to felony, a nd with gross negligence; or driving a vehicle in the comm ission of a lawful act whic h might produce death, in an unlawful manner, and w ith gross negligence.”9 a showing that he acted with gross negligen ce. “We have previously explained that ‘[g]ross negligence is the exercise of so slight a degree of care as to raise a presumption of conscious indifference to the consequences. [Citation.] “The state of mind of a person
who acts with conscious indifference to the consequences is simply, ‘I don’t care what happens.’” [Citation.] The test is objec tive: whether a reasonable person in the defendant’s position woul d have been aware of the risk involved. [Citation.]’ ( People v. Bennett (1991) 54 Cal.3d 1032, 1036 [2 Cal.Rp tr.2d 8, 819 P.2d 849] [hereafter
Bennett ].)” ( People v. Ochoa (1993) 6 Cal.4th 1199, 1204.)

B. Analysis

1. Recklessness Contrary to defendant’s assertion, the ev idence of his recklessness was substantial, even if there was conflicting evidence. Under the applicable standard of review we are required to apply, we only look to the evid ence supporting the conviction to see if it was
substantiated. The evidence consisted of th e following: Two eyewitn esses estimated that defendant entered the intersection traveling 90 miles per hour. One of those witnesses observed that the light was red when defendan t entered the intersection. There was also evidence that the speed limit for that portion of Atlantic Avenue was 35 miles per hour. Based on that evidence, which was reasonable, credible, and of solid value, a reasonable
trier of fact could have conc luded that defendant was aware of the risk posed by entering an intersection against a red li ght—and even with a green li ght—at nearly three times the speed limit and that he acted with conscious indifference to the consequences. The
evidence was therefore sufficien t to support a finding that defendant acted with the requisite recklessness. Accord ingly, we deny defendant’s request to reduce his sentence.10 2. Appointment of New Counsel Defendant maintains that if we reject his request to reduce his gross vehicular manslaughter conviction, we should appoint ne w counsel to brief several other issues on appeal. But defendant’s request for new coun sel is unsupported by any showing of good cause and does not include any citation to au thority. We therefore deny his request to appoint new counsel.

3. Record Review In addition to considering defendant’s s ubmission, we examined the entire record to determine if there are any other arguable issues on appeal. Based on that independent review, we have determined there are no other arguable issues on appeal. We are therefore satisfied that defendant’s ap pointed counsel has fully satisfied his responsibilities under Wende, supra, 25 Cal.3d 436.

DISPOSITION

The judgment of conviction is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MOSK, J.

We concur:

TURNER, P. J.

ARMSTRONG, J.