California Court of Appeal Mar 9, 2022 No. E074494AUnpublished
Filed 3/9/22 P. v. Rebosio CA4/2 Opinion following rehearing
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E074494
v. (Super. Ct. Nos. FVI18002727 & FVI18002728) DOMINIC DANIEL REBOSIO, et al., OPINION Defendants and Appellants.
APPEAL from the Superior Court of San Bernardino County. Eric M. Nakata,
Judge. Affirmed with directions.
Daniel J. Kessler, under appointment by the Court of Appeal, for Defendant and
Appellant, Dominic Daniel Rebosio.
Scott S. Furstman, for Defendant and Appellant, Robert Gysbert DeJager, Jr.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Donald W.
Ostertag and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and
Respondent.
1
I.
INTRODUCTION
Defendant and appellant, Dominic Daniel Rebosio caused a fatal automobile
accident. Codefendant Robert Gybsbert DeJager, Jr. assisted Rebosio in fleeing from the
subd. (b)), and making an unsafe lane change (Veh. Code, § 21658, subd. (a)).
The trial court did not abuse its discretion by permitting Sergeant Berns’s
hypothetical testimony on gross negligence. Sergeant Berns did not provide any
testimony regarding Rebosio’s actual state of mind and did not testify that Rebosio
committed Vehicle Code infractions. The crime of vehicular manslaughter does not
require a finding the driver had a specific intent to harm or a finding as to the driver’s
actual state of mind. The focus is on the conduct of a “reasonable person” and whether
the defendant’s manner of driving reflects a disregard for human life or indifference to
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the consequences of that act. (People v. Jones (1985) 164 Cal.App.3d 1173, 1182; Pen.
Code, § 192, subd. (c)(1).)
“Gross 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 objective: whether a reasonable
person in the defendant’s position would have been aware of the risk involved.
[Citation.]” (People v. Bennett (1991) 54 Cal.3d 1032, 1036; see People v. Nicolas
(2017) 8 Cal.App.5th 1165, 1171 (Nicolas).) The determination of whether Rebosio
acted with gross negligence required a determination of whether the way he acted was so
different from how an ordinarily careful person would act in the same situation.
(CALCRIM No. 592.)
Rebosio acknowledges that “[t]estimony in the form of an opinion that is
otherwise admissible is not objectionable because it embraces the ultimate issue to be
decided by the trier of fact.” (Evid. Code, § 805.) Rebosio, however, argues that
Sergeant Berns’s hypothetical testimony was inadmissible because it invaded the purview
of the jury to weigh the evidence and make findings on guilt. But Sergeant Berns did not
provide any hypothetical opinion testimony on Rebosio’s guilt or conduct. He only
testified that the driver in the hypothetical was negligent and his driving demonstrated a
lack of regard for the safety of others. Sergeant Berns testified that, based on the
assumed hypothetical facts given, “Yes. I see a lack of regard for the safety of others,”
16
and “[G]oing over 100 miles an hour anywhere in the state is against the law. And when
you’re passing that length of combination of vehicles, it’s not prudent. And then when
you merge back into the other lane and you rear end another vehicle because your speed
is so great, again, that is a poor choice all the way around. And it was in my opinion
negligent.”
“An expert may then testify about more generalized information to help jurors
understand the significance of those case-specific facts.” (Sanchez, supra,63 Cal.4th at p.
675.) Furthermore, “[T]he jury need [not] be wholly ignorant of the subject matter of the
expert opinion in order for it to be admissible. [Citation.] . . . Rather, expert opinion
testimony “‘will be excluded only when it would add nothing at all to the jury’s common
fund of information, i.e., when the ‘subject of inquiry is one of such common knowledge
that men of ordinary education could reach a conclusion as intelligently as the witness’”
[citation].’” (People v. Jones (2012) 54 Cal.4th 1, 60, internal quotes omitted.)
Sergeant Berns’s expert testimony was proper because it assisted the jury in
determining whether Rebosio’s driving was grossly negligent, that is, whether it was so
different from how an ordinarily careful person would have driven. (CALCRIM No.
592.) Rebosio’s attorney argued during closing argument that the accident was caused by
Rebosio driving at an excessive speed and therefore the accident was not caused by
Rebosio acting with gross negligence, because “[e]verybody speeds. We all live in the
High Desert. How many times does the freeway say construction zone, slow down. We
all keep going. The whole freeway keeps moving. In some places you don’t even get in
17
the fast lane unless you’re doing 85 or you get run over. Everybody speeds. [¶] Now,
we’re talking about [SR-] 58 late at night. Is speeding in and of itself grossly negligent?
No. It’s ordinary negligence. We all do it. What they’re proving is ordinary negligence,
not gross negligence on the part of the driver of the black Mustang.” Sergeant Berns’s
testimony assisted the jury in determining whether Rebosio’s driving at the time of the
accident was typical or grossly negligent.
Rebosio’s reliance on Duong for the proposition it was improper for Sergeant
Berns to state his opinion regarding Rebosio’s state of mind is misplaced. In Duong, the
defendant was convicted of first degree murder and second degree murder with a multiple
murder special circumstance and various gun use enhancements. The Duong defendant
was sentenced to death. The California Supreme Court held in part that the trial court did
not abuse its discretion by excluding the defense expert’s proposed opinion testimony 1 about the defendant’s state of mind under Penal Code section 29. (Duong, supra, 10
Cal.5th at p. 60.)
1 Penal Code section 29 states: “In the guilt phase of a criminal action, any expert testifying about a defendant’s mental illness, mental disorder, or mental defect shall not testify as to whether the defendant had or did not have the required mental states, which include, but are not limited to, purpose, intent, knowledge, or malice aforethought, for the crimes charged. The question as to whether the defendant had or did not have the required mental states shall be decided by the trier of fact.” (Ibid., italics added.)
18
The Duong court reasoned that the trial court properly concluded the expert’s
proposed opinion about the defendant’s state of mind should be excluded because “‘[a]
consistent line of authority in California as well as other jurisdictions holds a witness
cannot express an opinion concerning the guilt or innocence of the defendant. . . . [T]he
reason for employing this rule is not because guilt is the “ultimate issue of fact” to be
decided by the jury. Opinion testimony often goes to the ultimate issue in the case.
[Citation.] Rather, opinions on guilt or innocence are inadmissible because they are of no
assistance to the trier of fact. To put it another way, the trier of fact is as competent as
the witness to weigh the evidence and draw a conclusion on the issue of guilt.’
[Citation.]” (Duong, supra, 10 Cal.5th at p. 60.)
Duong is inapposite because the court did not hold that an expert could not testify
regarding gross negligence. The Duong court held the expert opinion evidence was
inadmissible, not because it was state of mind opinion evidence, but because the expert’s
testimony amounted to an opinion on the guilt of the defendant. (Duong, supra, 10
Cal.5th at p. 60.) Sergeant Berns did not provide expert opinion on Rebosio’s guilt. He
responded to a hypothetical. Sergeant Berns did not mention Rebosio or any specific
facts regarding the subject accident. The hypothetical was based on facts Sergeant Berns
was told to assume.
In addition, the court instructed the jury that it was required independently to
determine the actual underlying facts based on the evidence presented at trial and the jury
was not required to rely on Sergeant Berns’s expert opinions. (CALCRIM No. 332.) The
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jury was instructed that “You may disregard any opinion that you find unbelievable,
unreasonable, or unsupported by the evidence.” The court further instructed the jury that
“It is up to you to decide whether an assumed fact has been proved. If you conclude that
an assumed fact is not true, consider the effect of the expert’s reliance on that fact in
evaluating the expert’s opinion.” It is presumed the jury followed these instructions.
(People v. Davis (2005) 10 Cal.4th 463, 542.)
Rebosio also cites Nicolas, supra, 8 Cal.App.5th 1165, for the proposition
22349 merely states that “[i]t is the intent of the Legislature that there be reasonable
signing.” (Veh. Code, § 22349, subd. (c).) Any instruction on signing would be a
pinpoint instruction, which the trial court was not required to give sua sponte. (People v.
Coddington, supra, 23 Cal.4th at p. 584.)
Furthermore, omission of the speed-limit signing requirement was not prejudicial
error. It is not reasonably probable that the trial outcome would have been more
favorable to Rebosio had the trial court instructed the jury that a violation of Vehicle
Code section 22349, subdivision (b) required a finding that there must be reasonable
speed-limit signing. (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Cavitt
(2004) 33 Cal.4th 187, 209.) Omission of such an instruction was harmless because it is
undisputed Rebosio was driving over 100 miles per hour, which was far in excess of the
55 miles per hour speed limit.
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C. Jury Instruction on Eyewitness Identification Certainty
Rebosio contends the trial court violated his state and federal constitutional due
process rights by instructing the jury with CALCRIM No. 315. He argues the instruction
improperly directs the jury to consider witness certainty when evaluating eyewitness
identification. We conclude that under People v. Lemcke (2021) 11 Cal.5th 644 (Lemcke)
the instruction did not violate his due process rights.
During closing argument, Rebosio argued the prosecution failed to prove that he
was the driver of the black Mustang at the time of the accident. Rebosio maintained that
R.S., not Rebosio, was the driver. Witnesses, including J.S. and E.B., described the
driver as wearing shorts. Only R.S. was wearing shorts. Rebosio was wearing long
pants. In addition, J.S. was the only witness at the crash scene who identified Rebosio as
the driver. Using CALCRIM No. 315, the trial court instructed the jury regarding
evaluating eyewitness testimony. The instruction listed 15 factors to be considered,
including, “How certain was the witness when he or she made an identification?”
After the trial in this case in 2019, the California Supreme Court held in Lemcke,
supra, 11 Cal.5th 644 at pages 646-647, that although the eyewitness certainty factor
included in CALCRIM No. 315 is generally an unreliable indicator of accuracy, the
model instruction did not violate the defendant’s due process rights. The Lemcke court
stated that, “When considered in the context of the trial record as a whole, listing the
witness’s level of certainty as one of 15 factors the jury should consider when evaluating
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identification testimony did not render [the defendant’s] trial fundamentally unfair.”
(Lemcke, supra, at p. 646.)
The Lemcke court noted that the defendant was permitted to call an eyewitness
identification expert. In Lemcke, the expert testified that there generally was not a close
correlation between witness certainty and identification accuracy. The Lemcke trial court
instructed the jury that it was required to consider the expert’s testimony; the prosecution
retained the burden of proof to prove the defendant’s identity as the perpetrator beyond a
reasonable doubt; and witnesses sometimes make honest mistakes. (Lemcke, supra, at
pp. 647, 658, 660.)
The Lemcke court acknowledged that, “[c]ontrary to widespread lay belief, there is
now near unanimity in the empirical research that ‘eyewitness confidence is generally an
unreliable indicator of accuracy.’” (Lemcke, supra, 11 Cal. 5th at p. 647.) The Lemcke
court stated that, although giving CALCRIM No. 315 does not violate a defendant’s due
process rights and there was no reversible error, the court intended to refer “the matter to
the Judicial Council and its Advisory Committee on Criminal Jury Instructions to
evaluate whether or how the instruction might be modified to avoid juror confusion
regarding the correlation between certainty and accuracy.” The California Supreme
Court in Lemcke added that, “Acting pursuant to our supervisory powers, we further
direct that until the Judicial Council has completed its evaluation, trial courts should omit
the certainty factor from CALCRIM No. 315 unless the defendant requests otherwise.”
(Lemcke, supra, at pp. 647-648.)
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The People argue Rebosio forfeited his objection to CALCRIM No. 315 because
he did not raise it in the trial court. Regardless of whether Rebosio forfeited his
objection, we reject it under Lemcke, supra, 11 Cal.5th 644. (Auto Equity Sales, Inc. v.
Superior Court (1962) 57 Cal.2d 450, 455.) Under Lemcke, supra, 11 Cal.5th 644,
Rebosio’s due process rights were not violated by the court instructing on the witness
certainty factor. As the Supreme Court explained in Lemcke, the certainty-of-
identification factor in CALCRIM No. 315 does not equate witness certainty of
identification with accuracy and does not require the jury to presume an identification is
accurate just because a witness expresses certainty. (See Lemcke, supra, at p. 657.) The
witness certainty factor was just one of 15 factors the court listed for the jury to consider
when evaluating the credibility and accuracy of the eyewitnesses’ identification
testimony.
In addition, in determining whether there was reversible error in instructing on
identification certainty, we must consider the jury instructions as a whole. (Lemcke,
supra, 11 Cal.5th at p. 658.) Here, the jury was instructed that Rebosio was presumed
innocent and the People had the burden of proving each element of the offenses beyond a
reasonable doubt (CALCRIM No. 220; Lemcke, supra, at p. 658). The jury was also
instructed that “[t]he People have the burden of proving beyond a reasonable doubt that it
was [Rebosio] who committed the crime. If the People have not met this burden, you
must find the defendant not guilty.” (CALCRIM No. 315; see Lemcke, supra, at p. 658.)
The jury was further instructed it “alone, must judge the credibility or believability of the
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witnesses” and that “[p]eople sometimes honestly . . . make mistakes about what they
remember.” (CALCRIM No. 226; see Lemcke, supra, at p. 658.)
Rebosio acknowledges in his appellant’s reply brief (ARB) that after he filed his
appellant’s opening brief, the California Supreme Court in Lemcke decided the issue he
raised concerning CALCRIM No. 315. Rebosio recognizes in his ARB that Lemcke
holds that “the giving of the CALCRIM No. 315 instruction with the certainty language
did not result in a denial of due process for the defendant in Lemcke.” Rebosio did not
attempt to distinguish Lemcke from the instant case or argue that the holding does not
apply here. He therefore forfeited any such arguments. (People v. Niles (1964) 227
Cal.App.2d 749, 758.)
We conclude that, like the defendant in Lemcke, Rebosio “failed to establish that
the trial court’s decision to include the certainty factor in CALCRIM No. 315 violated his
due process rights or otherwise constituted error under the circumstances presented here.”
(Lemcke, supra, 11 Cal.5th at p. 669.)
IV.
RESENTENCING UNDER S.B. 567
Rebosio contends his sentence must be vacated and the matter remanded for
resentencing in accordance with S.B. 567. We agree.
On December 12, 2019, a jury found Rebosio guilty of vehicular manslaughter
(count 1), and hit and run driving resulting in death or serious injury (count 2). During a
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subsequent bifurcated trial, the trial court found that Rebosio had suffered a prior
conviction for residential burglary constituting a strike and a serious felony.
On January 9, 2020, the trial court sentenced Rebosio to an upper term of six
years, doubled as a result of the strike, for the vehicular manslaughter conviction. The
trial court said that it imposed the upper-term because:
“1. This is a crime involving great violence and great bodily harm.
“(b), factors affecting the defendant is that he has engaged in violent conduct that
indicates a serious danger to society.
“(b)(2) the defendant’s prior convictions as an adult are becoming numerous and
of increasing seriousness. The Court points to a prior 10851 and a prior strike of first
degree burglary.
“The Court looks at (b)(5), the defendant’s prior performance on probation was
unsatisfactory. . . (b)(3) also applies. The victim in this case was particularly vulnerable.
He was placed in a position where he couldn’t do anything. There’s nothing that the
victim could have done to save his own life or anyone else’s.” The trial court did not find
any factors in mitigation.
After defendants appealed the judgment and we issued a decision in this case,
Rebosio filed a petition for rehearing requesting resentencing based on S.B. 567,
amending Penal Code section 1170, subdivision (b), effective January 1, 2022. We
granted the petition and permitted the parties to submit supplemental briefing regarding
the impact of S.B. 567.
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Penal Code section 1170, as amended by S.B. 567, provides in subdivision (b)(2)
that “[t]he 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.”
Penal Code section 1170, as amended, thus made the middle term the presumptive
term. A trial court may now only impose an upper term when circumstances in
aggravation exist, and the facts underlying the aggravating circumstances have been
stipulated to by the defendant or found true beyond a reasonable doubt by the jury or the
court acting as the factfinder. (Pen. Code, § 1170, subd. (b)(1), (2), added by Stats. 2021,
ch. 731, § 1.3.) The trial judge may, however, rely on certified records of a defendant’s
prior convictions when considering these enhancements to a sentence without submitting
the issue of a prior conviction to a jury. (Pen. Code, § 1170, subd. (b)(3).)
The parties agree S.B. 567 applies retroactively to this case because the judgment
was not final as of January 1, 2022, when S.B. 567 took effect. (See In re Estrada (1965)
63 Cal.2d 740, 746-748.) But the People argue that this court should not remand the case
for resentencing because the trial court found as an aggravating factor that Rebosio
suffered a prior conviction for residential burglary, which was a serious felony and a
strike. The trial court, however, also imposed the upper term based on other aggravating
factors, which were not based on jury or bench-trial findings or stipulated findings. Such
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additional findings included that the charged crime involved “great violence and great
bodily harm,” the crime demonstrated Rebosio “engaged in violent conduct that indicates
a serious danger to society,” his “prior convictions as an adult are becoming numerous
and of increasing seriousness,” Rebosio’s “performance on probation was
unsatisfactory,” and the victim “was particularly vulnerable.”
Although S.B. 567 permits a trial court to impose an aggravated sentence based on
a defendant’s prior convictions evidenced by certified records of conviction, here, the
trial court’s aggravated findings included, not only Rebosio’s prior conviction for
residential burglary, but also various other aggravating factors that were not tried, found
true beyond a reasonable doubt, or stipulated to by the defendant, as required under S.B.
567. Therefore, Rebosio is entitled to reversal of his sentence and resentencing upon
remand, in accordance with Penal Code section 1170, subdivision (b), as amended by
S.B. 567.
V.
DEJAGER’S APPEAL
A. Sufficiency of Evidence of Aiding and Abetting
DeJager contends there was insufficient evidence he aided and abetted Rebosio in
committing the offense of hit and run resulting in death, in violation of Vehicle Code
section 20001, subdivision (b)(2). We disagree.
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1. Applicable Law
Under Penal Code section 31, “All persons concerned in the commission of a
crime, . . . whether they directly commit the act constituting the offense, or aid and abet
in its commission, . . . are principals in any crime so committed.” “Thus, a person who
aids and abets a crime is guilty of that crime even if someone else committed some or all
of the criminal acts.” (People v. McCoy (2001) 25 Cal.4th 1111, 1117.) An aider and
abettor’s guilt for the intended crime “is based on a combination of the direct
perpetrator’s acts and the aider and abettor’s own acts and own mental state.” (Ibid.)
“[A] person aids and abets the commission of a crime when he or she, acting with
(1) knowledge of the unlawful purpose of the perpetrator; . . . (2) the intent or purpose of
committing, encouraging, or facilitating the commission of the offense, [and] (3) by act
or advice aids, promotes, encourages, or instigates, the commission of the crime.”
(People v. Beeman (1984) 35 Cal.3d 547, 561; accord, People v. Johnson (2016) 62
Cal.4th 600, 630.)
DeJager was tried for committing the crime of hit and run resulting in death, as an
aider and abettor, in violation of Vehicle Code section 20001. Subdivision (a) of section
20001 provides: “The driver of a vehicle involved in any accident resulting in injury to a
person, other than himself or herself, . . . shall immediately stop the vehicle at the scene
of the accident and shall fulfill the requirements of Sections 20003. . . .” Section 20003
requires the driver to stop and provide certain personal information to the other driver and
33
to police officers at the scene of the accident. In addition, the driver is required to render
reasonable assistance to any person who is injured. (Veh. Code, § 20003.)
“[I]n order to convict a driver of a vehicle of felony hit-and-run driving it is
essential that the driver knows that an accident has occurred [citations], knows that he
was involved in the accident [citations], and knowingly leaves the scene of the accident
either with knowledge that the accident resulted in injury or with knowledge that the
accident was of such a nature that one would reasonably anticipate that the accident
resulted in injury to another [citations].” (People v. Hamilton (1978) 80 Cal.App.3d 124,
132.)
“In assessing the sufficiency of the evidence, we review the entire record in the
light most favorable to the judgment to determine whether it discloses evidence that is
reasonable, credible, and of solid value such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt. [Citations.] Reversal on this ground is
unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient
substantial evidence to support [the conviction].’” (People v. Bolin (1998) 18 Cal.4th
297, 331; see People v. Zamudio (2008) 43 Cal.4th 327, 357.) If the circumstances
reasonably justify the trier of fact’s findings, this court’s conclusion that the
circumstances might also reasonably be reconciled with a contrary finding does not
warrant reversal of the judgment. (People v. Jones (2013) 57 Cal.4th 899, 961.)
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2. Analysis
DeJager does not dispute that Rebosio was the driver of the black Mustang, that
Rebosio knew that an accident had occurred, that Rebosio was involved in the accident,
and that he knew that the accident resulted in injury to others or knew that it was
probable that it resulted in injury. However, DeJager argues there was insufficient
evidence he aided and abetted Rebosio in committing the hit and run offense because it
was completed before DeJager arrived at the accident scene. DeJager asserts that the hit
and run offense was completed when Rebosio walked away from the accident scene
before DeJager arrived. There is substantial evidence to the contrary.
Evidence that the hit and run crime offense was incomplete when DeJager arrived
at the accident scene includes testimony Rebosio had not yet left or fled from the accident
scene. CHP Officer Vargas testified that the collision occurred on Highway 58, in the
middle of “open desert.” Officer Vargas further stated that at the scene of the accident, it
was dark. There was no lighting other than the patrol vehicle lights. This evidence
demonstrated it was not reasonably feasible for Rebosio to leave the accident scene
without the assistance of someone with a vehicle.
R.S., who was DeJager’s friend and a passenger in DeJager’s car, testified that
DeJager picked up Rebosio in the middle of the accident scene. When DeJager arrived at
the scene, he and DeJager saw Rebosio’s damaged car and another car that had crashed,
and then saw Rebosio “walking around like he was hurt from the accident.” He was
limping. J.S. testified he noticed Rebosio was bloody, staggering, and mumbling near the
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black Mustang. J.S. then saw Rebosio suddenly, amid the “chaos,” get into a car, which
drove away. As Rebosio was leaving in DeJager’s car, J.S. heard other witnesses yell,
“Hey, he’s getting away.” D.N., who saw the vehicle collision and stopped to provide
assistance, testified that right after the accident Rebosio got out of the black Mustang,
asked others for a flashlight, and then immediately asked D.N. to “give him a ride to
another waiting car.” D.N. refused and told Rebosio to wait for the CHP to arrive. D.N.
then saw DeJager pull up in his grey Mustang, Rebosio got in, and they drove straight to
Las Vegas.
This evidence as a whole supports a reasonable finding that the hit and run offense
was not completed until Rebosio fled in DeJager’s car. Up until that point, Rebosio
remained at the accident site. It would have been extremely difficult and unlikely he
would have left on his own because it was 1:20 a.m., it was dark, the accident scene was
in the middle of the desert, Rebosio was limping, he was alone, and his car was not
operating. No one offered him a ride, until DeJager arrived and assisted Rebosio in
fleeing from the accident scene.
DeJager alternatively argues there was insufficient evidence he aided and abetted
Rebosio in committing the hit and run offense because there was no evidence DeJager
committed the requisite actus reus of encouraging or otherwise persuading Rebosio to
leave the accident scene. We disagree.
Proof of aider and abettor liability requires proof of “conduct by the aider and
abettor that in fact assists the achievement of the crime.” (People v. Perez (2005) 35
36
Cal.4th 1219, 1225; see People v. McCoy, supra, 25 Cal.4th at p. 1117.) The actus reus
of an aider and abettor can be established by evidence of an act or advice that “aids,
promotes, encourages, or instigates, the commission of the crime.” (People v. Beeman,
supra, 35 Cal.3d at p. 561; accord, People v. Prettyman (1996) 14 Cal.4th 248, 259;
People v. Johnson, supra, 62 Cal.4th at p. 630.) Here, there was substantial evidence of
DeJager assisting Rebosio in committing the hit and run offense by picking him up at the
accident scene and immediately driving off with Rebosio to Las Vegas.
In People v. Holford (1965) 63 Cal.2d 74, the court discussed aiding and abetting
liability. The defendant in Holford caused a vehicle collision and was convicted of hit
and run. His passenger encouraged the Holford defendant to leave the accident scene.
The court in Holford concluded that the passenger was a principal and accomplice in the
commission of the hit and run offense because he “encouraged the defendant to leave the
scene of the accident” and he had “acquired the same knowledge concerning the nature of
the accident as did defendant.” (Id. at p. 81.)
DeJager argues Holford is distinguishable because DeJager was neither the driver
nor passenger in the vehicle involved in the accident and there was no evidence he took
any affirmative action to encourage or persuade Rebosio to leave the accident scene.
Even though the Holford facts are distinguishable, Holford is instructive in explaining
aider and abettor principles applicable in the instant case. In Holford, the court explained
that “Penal Code section 31 provides that those ‘concerned in the commission of a crime’
constitute principals ‘whether they directly commit the act constituting the offense, or aid
37
and abet in its commission, or, not being present, have advised and encouraged its
commission. . . .’ The person who advises and encourages the commission of the crime
while present at its perpetration surely falls within the definition of a principal.”
(Holford, supra, 63 Cal.2d at p. 81.) This includes “a passenger who advises and
encourages the driver to leave the scene of the accident, knowing that someone has been
injured.” (Holford, supra, 63 Cal.2d at p. 82.)
Here, unlike in Holford, supra, 63 Cal.2d 74, DeJager was not the driver of the
black Mustang that caused the deadly automobile collision and was not present during the
collision. He arrived during the immediate aftermath, during which he assisted Rebosio
in unlawfully fleeing from the accident scene.
DeJager argues there is no evidence he said anything advising or encouraging
Rebosio to flee from the accident scene. Even if there was no evidence of this, evidence
of DeJager’s actions was more than sufficient to support DeJager’s hit and run conviction
based on aiding and abetting. There was evidence DeJager assisted Rebosio by picking
him up at the accident scene right after the collision and driving him directly to Las
Vegas, knowing that Rebosio was involved in the accident and therefore should have
remained at the scene to assist the injured, provide his personal information, and report
the accident to law enforcement. We therefore conclude there was substantial evidence
to support DeJager’s conviction as an aider and abettor of Rebosio’s hit and run offense.
38
B. Admissibility of Evidence of the Las Vegas Stop and Car Theft
DeJager contends the trial court abused its discretion by allowing evidence of the
Las Vegas traffic stop and evidence of Rebosio’s theft of the black Mustang. We
disagree.
The trial court has broad discretion in determining whether evidence is relevant.
(People v. Williams (2008) 43 Cal.4th 584, 634.) Even if the evidence is relevant, the
trial court has the discretion to exclude it under Evidence Code section 352. This statute
provides that “[t]he court in its discretion may exclude evidence if its probative value is
substantially outweighed by the probability that its admission will (a) necessitate undue
consumption of time or (b) create substantial danger of undue prejudice, of confusing the
issues, or of misleading the jury.” (Evid. Code, § 352.) A trial court’s discretionary
evidentiary ruling under this statute shall not be disturbed on appeal unless there is a
showing of a manifest miscarriage of justice. (People v. Williams, supra, at pp. 634-635.)
1. Evidence of the Las Vegas Traffic Stop
DeJager filed a motion in limine requesting the court to exclude evidence of the
Las Vegas traffic stop. The trial court denied the motion, ruling the traffic stop evidence
was admissible. The court found that under Evidence Code section 352, the probative
value of the traffic stop evidence outweighed its prejudice.
The traffic stop evidence included evidence that Officer Rohr pulled over DeJager
in Las Vegas at 3:30 a.m., a little over two hours after the deadly accident involving
Rebosio’s black Mustang. DeJager’s grey Mustang appeared to be street racing on Las
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Vegas Boulevard. During the traffic stop, Officer Rohr smelled marijuana and alcohol in
the car. Rebosio and R.S. were passengers in DeJager’s grey Mustang. Officer Rohr
noticed Rebosio had blood on him. Rebosio gave Officer Rohr a false name and said his
injuries were from falling down. Officer Rohr cited DeJager for not carrying proof of car
insurance and then released him and his two passengers. The trial court admitted the
traffic stop evidence over DeJager’s objection, finding that the traffic stop evidence was
relevant, admissible evidence.
The Las Vegas traffic stop evidence was relevant to show that, even though
Rebosio was legally required to report his involvement in the deadly accident and had an
additional the opportunity to do so during the Las Vegas traffic stop, he intended to
conceal his involvement. The evidence was also relevant to show DeJager assisted
Rebosio in fleeing from the accident scene in violation of Vehicle Code sections 20001
and 20003.
The traffic stop evidence further demonstrates Rebosio’s consciousness of guilt
and DeJager’s guilt, based on aiding and abetting Rebosio in committing the hit and run
offense. The evidence shows that Rebosio attempted to avoid law enforcement
discovering his involvement in the accident by giving Officer Rohr a false name and
lying to the officer about how he was injured. There is also evidence that Officer Rohr
interviewed DeJager and Rebosio separately and they both came up with the same false
story and same false name for Rebosio. This suggests DeJager and Rebosio planned
beforehand what they would say if stopped by law enforcement.
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DeJager argues that even if the evidence of the traffic stop was relevant, it should
have been excluded under Evidence Code section 352 because its highly prejudicial
effect far outweighed any probative value. We disagree. The traffic stop evidence of
Rebosio fleeing the accident scene in DeJager’s car, DeJager driving straight to Las
Vegas, Rebosio not disclosing to Officer Rohr that he had recently been in the accident,
and Rebosio giving Officer Rohr a false name and lying about how he received his
injuries was highly probative. The probative value of the traffic stop evidence
outweighed any prejudice, which was minimal. Furthermore, any error in allowing the
traffic stop evidence does not constitute prejudicial error. It is not reasonably probable
the defendants would have reached a more favorable outcome had the traffic stop
evidence been excluded. (People v. Fuiava (2012) 53 Cal.4th 622, 671; People v.
Watson, supra, 46 Cal.2d at p. 836.)
2. Evidence of Theft of the Black Mustang
Over DeJager’s objection, the trial court permitted evidence that Rebosio stole the
black Mustang he was driving during the accident. The court instructed the jury that it
could only consider the evidence if the prosecution proved that Rebosio committed the
vehicle theft. The jury was instructed that, if the prosecution did not meet its burden of
proving the offense, the jury must disregard the evidence. If the jury found Rebosio
committed the vehicle theft, the jury could consider the evidence for the limited purposed
of deciding whether (1) Rebosio was the person who committed the charged offenses of
gross vehicular manslaughter and hit and run resulting in death or (2) Rebosio had a
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motive to commit the hit and run offense.
The court further instructed the jury not to consider the evidence for any other
purpose and not to conclude from the evidence that Rebosio has a bad character or is
disposed to commit crime. The trial court also instructed that if the jury concluded
Rebosio committed the vehicle theft, that conclusion was only one factor to consider
along with the other evidence and was not sufficient alone to prove either of the charged
offenses. (CALCRIM No. 375.) 2 DeJager contends that evidence that Rebosio stole the black Mustang should have
been excluded under Evidence section 352 because it was highly prejudicial and of little
probative value. DeJager argues that the fact that the black Mustang was a stolen vehicle
was irrelevant to the charges of gross vehicular manslaughter and hit and run resulting in
death. DeJager asserts that the evidence was prejudicial because it indicated that Rebosio
was of bad character because he was a car thief, and DeJager was also of bad character,
by his association with Rebosio.
Although the vehicle theft evidence disclosed that Rebosio was a vehicle thief, it
was relevant to the charges. It supports a finding that Rebosio was the driver of the black
Mustang involved in the accident. DeJager argues that the evidence was unnecessary to
establish this fact. However, Rebosio disputed that he was the driver of the black
2 DeJager states in his motion in limine and appellant’s opening brief (AOB) that the stolen vehicle driven by Rebosio was grey. This appears to be stated in error. Substantial evidence establishes that the stolen vehicle Rebosio was driving was a black Mustang. DeJager drove a grey Mustang.
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Mustang. During closing argument, his attorney argued the prosecution had failed to
prove that he was the driver of the black Mustang at the time of the accident. Rebosio
maintained that the evidence supported a finding that R.S., not Rebosio, was the driver.
The vehicle theft evidence also was relevant to Rebosio’s motive to commit the hit and
run offense. The jury could reasonably infer from the evidence that Rebosio fled the
accident scene to avoid being apprehended for the theft of the black Mustang.
In addition, any prejudice from allowing the evidence was minimized by the trial
court instructing the jury to consider the evidence only for the limited purpose of
determining motive and intent, and only if the jury found that the prosecution had proven
that Rebosio had committed the vehicle theft. It is presumed the jury followed these
instructions. (People v. Thomas (2011) 51 Cal.4th 449, 487; People v. Sanchez (2001) 26
Cal.4th 834, 852.)
VI.
CUMULATIVE ERROR
Rebosio and DeJager contend that, even if the asserted errors were not
individually prejudicial, their cumulative effect constitutes reversible prejudicial error.
We disagree. A predicate to a claim of cumulative error is a finding of multiple errors,
which when considered collectively, are prejudicial. (People v Mora and Rangel (2018)
5 Cal.5th 442, 499; People v. Rogers (2006) 39 Cal.4th 826, 911.) Because we conclude
there was no error, we reject defendants’ contention there was cumulative error. (People
v. Cole (2004) 33 Cal.4th 1158, 1235-1236.)
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VII.
DISPOSITION
Rebosio’s sentence is vacated and this case is remanded for resentencing of
Rebosio consistent with S.B. 567. In all other respects, the judgment is affirmed as to
both Rebosio and DeJager.
Following Rebosio’s resentencing, the trial court shall forward an amended
abstract of judgment to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J.
We concur:
McKINSTER Acting P. J.
MILLER J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that Senate Bill No. 567 requires vacating the defendant's upper term sentence because the facts supporting the sentence were not stipulated to or found true by a jury beyond a reasonable doubt. In all other respects, the court affirmed the convictions and judgments for both defendants.
Issues
Did the trial court abuse its discretion by allowing expert testimony regarding the defendant's driving conduct and negligence?
Was the jury instruction on gross vehicular manslaughter inadequate for failing to instruct on all elements of the underlying speeding infraction?
Did the trial court violate due process by giving CALCRIM No. 315 on eyewitness identification?
Was there sufficient evidence to support the aider and abettor conviction for hit and run?
Disposition. Affirmed with directions; remanded for resentencing.
Quotations verified verbatim against the opinion
“We therefore reject defendants’ contentions, with the exception that we agree S.B. 567 requires vacating Rebosio’s sentence and remanding the case for resentencing Rebosio consistent with S.B. 567.”
“The trial court did not abuse its discretion by permitting Sergeant Berns’s hypothetical testimony on gross negligence.”