P. v. Weisz CA3

Filed 7/22/13 P. v. Weisz CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C068196

Plaintiff and Respondent, (Super. Ct. No. 09F07200)

v.

MICHAEL WEISZ,

Defendant and Appellant.

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.

1

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