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Filed 7/22/13 P. v. Weisz 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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.

MICHAEL WEISZ,

Defendant and Appellant.

C068196

(Super. Ct. No. 09F07200)

Defendant Michael Weisz was charged with murder (Pen. Code, § 187, subd. (a)) 

and hit and run resulting in death (Veh. Code, § 20001 subd. (a)). A jury acquitted 

defendant of murder but convicted him of the hit and run. 

Sentenced to the upper term of four years in prison, defendant appeals contending 

the trial court (1) erred in failing to instruct the jury that he was not guilty of hit and run if 

he performed the required acts within a reasonable period of time after learning of the 

accident, and (2) abused its discretion in imposing the aggravated term. We reject both 

contentions.
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FACTS

Defendant and Ross Konkel were drinking at Badlands, a bar in Sacramento. 

Because of their rude and obnoxious behavior they were asked to leave and were escorted 

out of the bar by security guards Leroy Fisher and Juan Carlos Osoria. Outside the bar, a 

verbal confrontation occurred between defendant, Konkel and the guards. Defendant and 

Konkel left when one of the guards threatened to pepper spray them if they touched either 

guard. As defendant and Konkel were leaving, defendant found a cup containing liquid 

and threw it toward the guards, but it did not hit either of them. The guards chased 

defendant and Konkel off the property. 

A little later, defendant and Konkel returned to the bar‟s parking lot to get 

defendant‟s car. Defendant went to the driver‟s side of his car and Konkel to the 

passenger‟s side. As defendant was getting into his car, Fisher, came up behind 

defendant and tased him in the chest. Konkel came from the passenger‟s side and pushed 

Fisher away from defendant. Fisher then tased Konkel, knocking him to the ground. 

Defendant managed to get into the car, had trouble reaching over and opening the door 

for Konkel, and the car rolled slowly forward and over Fisher who was either in front of 

the car or already on the ground, killing him.1 Defendant and Konkel then drove off. 

Defendant testified that it did not feel like he had run over anyone and he did not know 

that he had done so. 

Jaime Ramirez is a friend of defendant‟s. He testified defendant called him 

sounding panicked, shocked and frantic. Defendant told Ramirez about being tased by a 

security guard and that at some point he thought he had hit him. Ramirez told defendant 

that if he and Konkel hit somebody with their car, they needed to call the police. Shortly 

 

1 Expert testimony established that Fisher was killed by being run over by a slow 

moving vehicle. 
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thereafter, Ramirez located defendant and Konkel in defendant‟s apartment. Defendant 

was hysterical and he repeated that he had hit the security guard. 

While at defendant‟s apartment, defendant spoke with a 911 operator and told the 

operator of being attacked by a security guard in the parking lot at the Badlands bar, but 

he did not mention to the operator that he thought he had hit anyone with his car. The 

operator told defendant to wait at the apartment for an officer. 

Instead of waiting, defendant and Konkel drove away, ending up in San Francisco 

at a friend‟s home. Defendant and Konkel turned themselves in to the San Francisco 

police shortly before noon that day. 

Defendant testified, admitting that during the drive to San Francisco he called his 

sister on his cell phone a little before 2:30 a.m. and “[p]robably” told her that he “might 

have” hit the security guard with his car. Defendant denied telling anyone that he was 

aware he had struck Fisher. 

DISCUSSION

I

Defendant contends that CALCRIM No. 2140 is fatally flawed. He makes the 

following argument: “The instructional problem in this case is when [defendant] learned 

that he injured Fisher. The jury could have found that it was at the time of the accident 

itself up to some point when they arrived at San Francisco. If the jury found the latter 

true, that [defendant] did not learn of it until driving north [sic], such as when he was 

informed that the police were looking for him, it was not instructed what it should do 

with that finding.” We do not so read the instruction.

CALCRIM No. 2140, as given, provides that to prove a violation of Vehicle Code 

section 20001, subdivision (a), “the People must prove that: [¶] 1. While driving, the 

defendant was involved in a vehicle accident; [¶] 2. The accident caused death of 

someone else; [¶] 3. The defendant knew that he had been involved in an accident that 

injured another person or knew from the nature of the accident that it was probable that 
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another person had been injured; [¶] AND [¶] 4. The defendant willfully failed to 

perform one or more of the following duties: [¶] (a) To stop immediately at the scene 

of the accident; [¶] (b) To provide reasonable assistance to any person injured in the 

accident; [¶] (c) To give to the person struck or any peace officer at the scene of the 

accident all of the following information: [¶] The defendant‟s name and current 

residence address; and [¶] [t]he registration number of the vehicle he was driving; [¶] 

(d) When requested, to show his driver‟s license to the person struck, or any peace officer 

at the scene of the accident; [¶] AND [¶] (e) The driver must, without unnecessary delay, 

notify either the police department of the city where the accident happened or the local 

headquarters of the California Highway Patrol if the accident happened in an 

unincorporated area.” 

CALCRIM No. 2140 further instructs the jury that “[t]he duty to stop immediately

means that the driver must stop his vehicle as soon as reasonably possible under the 

circumstances” (original italics); that “[y]ou may not find the defendant guilty unless all 

of you agree that the People have proved that the defendant failed to perform at least one 

of the required duties”; and that “[y]ou must all agree on which duty the defendant failed 

to perform.” 

Since “[j]urors are presumed to be intelligent persons capable of understanding 

and correlating jury instructions” (People v. Brock (2006) 143 Cal.App.4th 1266, 1277), 

it would be obvious to them that the duties set forth in CALCRIM No. 2140, 4(a) through 

4(d), apply only to a vehicle driver who knows that he or she has injured someone at the 

scene of the accident, or knew from the nature of the accident that it was probable 

another person had been injured, it would be similarly obvious to the jurors that the duty 

described by 4(e) covers the circumstance where the driver does not learn that he or she 

has injured someone with their vehicle at the scene of the accident, but later learns that 

such is the case.
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Therefore, even if the jurors concluded that defendant did not know he had struck 

Fisher at the scene of the accident, or that he did not know from the nature of the accident 

that it was probable another person had been injured, and that he only learned that he had 

done so during the drive to San Francisco, the jurors would have analyzed defendant‟s 

conduct under (4)(e), to determine whether without unnecessary delay he informed law 

enforcement of his or her involvement in the accident. Thus, the jurors were not without 

guidance if they concluded as defendant hypothesizes that they might have.2

II

Defendant contends the trial court abused its discretion by imposing the upper 

term of four years for the hit and run. This is so, defendant argues, because the 

aggravating factors found by the court were either a prohibited dual use of a fact or there 

was lack of substantial evidence to support the existence of the fact. We conclude any 

possible error is harmless.

A trial court‟s sentencing decision is reviewed under the abuse of discretion 

standard. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) “The trial court‟s sentencing 

discretion must be exercised in a manner that is not arbitrary and capricious, that is 

consistent with the letter and spirit of the law, and that is based upon an „individualized 

consideration of the offense, the offender, and the public interest.‟ [Citation.]” (Ibid.)

Here, the court cited the following as factors in aggravation: As a juvenile 

defendant had two sustained petitions for assault with a deadly weapon (Pen. Code, § 

 

2 Because defendant‟s argument is that CALCRIM No. 2140 failed to give the 

jurors guidance if they concluded he did not learn of his having injured Fisher at the 

scene of the accident, he makes no argument regarding the sufficiency of the evidence to 

support a finding of the duty described in 4(e). Of course, such an argument would be 

difficult to make since defendant had a cell phone and failed to call law enforcement 

during the drive to San Francisco, but instead waited several hours until nearly noon to 

turn himself in. 
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245, subd. (a)(1) against his sister and a few months later against his mother3(Cal. Rules 

of Court, rule 4.421(b)(2)).4 Defendant‟s actions were callous as shown by his leaving 

Sacramento and going to San Francisco “after [he] knew a security guard had been [hit]” 

(rule 4.421(a)(1)). Also, professionalism and sophistication were shown by defendant‟s 

contacting 911 and giving them false information regarding himself and his involvement 

in the accident (rule 4.421(a)(8)). 

Defendant argues the court‟s finding of callousness could not be used because it 

was based upon his leaving the scene of the accident, which is an element of the crime. 

Defendant also argues the evidence is insufficient to demonstrate callousness, and 

to demonstrate professionalism and sophistication.

Notwithstanding any improper use by the trial court of the foregoing factors, it 

properly relied upon defendant‟s delinquent adjudications for assault with a deadly 

weapon, which is conduct constituting a serious felony (Pen. Code, § 1192.7, subd. 

(c)(23)). Against these two adjudications, which the court found to be “very disturbing 

incidents,” were the favorable letters submitted on behalf of defendant. However in 

noting it had read all of the letters submitted in support of defendant‟s character, the court 

stated many of the people who had written them were unaware of defendant‟s “prior 

history with law enforcement.” Such comments make it reasonably certain that the court 

 

3 The petitions were filed pursuant to Welfare and Institutions Code sections 602 

(substantive offense) and 707 (probation violation). The offenses occurred in 1998, the 

first when he was a month shy of turning 12, the second a few months after he turned 12. 

They were each for assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)). In the 

first assault, the minor attacked his sister with a metal utility knife with a razor blade 

attached to the end and with a marker construction stake. She suffered cuts and bruises 

on her body from the attack. The second was against the minor‟s mother after she had 

asked him to do his homework. He kicked her several times on both legs, tried to trip 

her, threw scissors at her, and hit her with a wooden plank. She had injuries above her 

elbow and bruises on both shins. 

4 Hereafter all rule references are to the California Rules of Court.
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found the aggravation factors outweighed those in mitigation. Consequently, it is highly 

unlikely that a remand for resentencing would benefit defendant. Hence, any possible 

error in considering the other aggravating factors was harmless. (People v. Williams

(1996) 46 Cal.App.4th 1767, 1783 [remand for resentencing unnecessary where it would 

be no more than an idle act].)

DISPOSITION

The judgment is affirmed.

 NICHOLSON , Acting P. J.

We concur:

 BUTZ , J.

 MURRAY , J.