People v. Rosas CA2/6

Filed 5/19/15 P. v. Rosas CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

THE PEOPLE, 2d Crim. No. B255739 (Super. Ct. No. F470906) Plaintiff and Respondent, (San Luis Obispo County)

v.

RENE ROSAS,

Defendant and Appellant.

A jury found Rene Rosas guilty of vehicular manslaughter without gross negligence while intoxicated. (Pen. Code, § 191.5, subd. (b).) The court sentenced Rosas to four years and suspended the final year. We reverse. There is no evidence Rosas was driving at the time of the accident. FACTS Rosas brought his motor home to an auto repair shop owned by Ronald Kelsey in September 2010. Rosas had been having trouble with the motor home. It rolled when the transmission was placed in park. Susan Booth, Kelsey's sister-in-law and employee, saw Rosas go into the motor home and Kelsey go under the driver's side rear tires. She saw Rosas start the motor home and the motor home roll backwards one to two feet onto Kelsey's back. Booth and Kelsey screamed. Rosas moved the motor home forward.

The screams brought another employee and two neighboring shop owners to the site. One of the neighboring shop owners saw Rosas behind the motor home steering wheel, "hanging out the window," asking "what happened?" The neighboring shop owners pulled Kelsey's body from under the mobile home and administered "C.P.R." until the police arrived. Kelsey died of blunt force trauma. His injuries were consistent with being crushed by a leveling jack stand under the motor home. Sergeant Michael Martinez of the Arroyo Grande police department conducted an accident investigation. Martinez believed that a chock behind the front passenger tire was in place when the accident happened. It bore tire treads and had dirt pushed up against it. Other chocks were added after the accident. The motor home moved a total of 56 inches backward and 32 inches forward. Rosas told the police that initially Kelsey got underneath the motor home and had Rosas shift through the gears while the engine was off. Then Kelsey told Rosas to do the same thing with the engine on. Rosas replied, "Are you crazy? Seriously? Kelsey responded, "Yeah. Just keep your foot on the brake? Rosas said he asked, "Are you sure?" and Kelsey replied, "Yeah." Rosas started the engine. He said he had his foot on the brake when he put the motor home in gear. He said the transmission got stuck in reverse. He said the motor home moved even though he had his foot on the brake. Police drove the motor home after the incident. They found nothing wrong with the brakes. Officer Vincent Johnson of the Arroyo Grande police department investigated Rosas for driving under the influence. Rosas admitted that he had taken a "couple of shots" of whiskey before the accident and that he felt "a little buzzed." Rosas also admitted that he had used marijuana earlier that day and used methamphetamine between one and three days before. Johnson noticed Rosas' color was flushed, his eyes were bloodshot, his speech was slurred and he had the odor of alcohol on his person. Johnson