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People v. Calhoun11/2/2004
At about 7:00 p.m. on October 6, 2002, Calhoun and Waller were racing their cars **540 side-by-side on Imperial Avenue in San Diego. Although the posted speed limit was 50 miles per hour, the two cars apparently were traveling faster than 70 miles per hour. After Waller's car passed Calhoun, it struck a vehicle driven by Shanna Jump, who was turning left on Imperial Avenue from the opposite direction Calhoun and Waller were driving. After the Waller-Jump collision, Calhoun made a U-turn, drove back to the scene of the accident, and then left the scene and drove home.
Jump and her passenger, Brian Hanson, were killed. Jump's other passenger, Michael Hanson, survived but suffered great bodily injury. Waller's passenger, Jasen Moore, survived but suffered great bodily injury.
An amended consolidated information charged Waller and Calhoun each with two counts of second degree murder (Pen.Code, § 187, subd. (a)), two counts of vehicular manslaughter with gross negligence (Pen.Code, § 192, subd. (c)(1)), and two counts of reckless driving causing bodily injury *1037 (§ 23104, subd. (a)). The information also alleged that after committing the gross vehicular manslaughter offenses Calhoun fled the scene of the crime (§ 20001, subd. (c)). [FN2] After a joint trial, the jury found Waller and Calhoun each not guilty on the two counts of second degree murder, guilty on the two counts of vehicular manslaughter with gross negligence, and guilty on the two counts of reckless driving causing bodily injury. The jury also found true the allegations that after committing the gross vehicular manslaughter offenses Calhoun fled the scene of the crime. [FN3] The court sentenced Waller to the upper term of six years for the first count of vehicular manslaughter with gross negligence, a concurrent upper six-year term for the second count of vehicular manslaughter with gross negligence, and concurrent terms of 180 days for each of the two counts of reckless driving causing bodily injury, for a total term of six years. It sentenced Calhoun to the middle term of four years for the first count of vehicular manslaughter with gross negligence with a consecutive five-year enhancement for fleeing the scene of the crime, a concurrent four-year term for the second count of vehicular manslaughter with gross negligence, and concurrent terms of 180 days for each of the two counts of reckless driving causing bodily injury, for a total term of nine years. [FN4]
FN2. The information also alleged that in committing the gross vehicular manslaughter offenses, Waller and Calhoun personally used a deadly weapon (Pen.Code, § 1192.7, subd. (c)(23)) and personally
inflicted great bodily injury (Pen.Code, § 1192.7, subd. (c)(8)), but the prosecution subsequently dismissed those allegations as to Calhoun.
FN3. In a bifurcated court trial, the court found not true the allegations Waller personally used a deadly weapon and found true the allegations he personally inflicted great bodily injury in committing the gross vehicular manslaughter offenses.
FN4. The court stayed execution of the second five-year enhancement for fleeing the scene of the crime.
Waller and Calhoun each filed timely notices of appeal.
DISCUSSION
I
CALHOUN'S APPEAL
Section 20001, Subdivision (c) Allegations
Calhoun contends the trial court erred by denying his Penal Code section 995 motion to dismiss the section 20001, subdivision (c) allegations because, he argues, **541 that enhancement does not apply to persons who do not personally or directly commit the underlying offenses.
*1038 A
Before trial Calhoun filed a Penal Code section 995 motion to dismiss the two section 20001, subdivision (c) allegations that he fled the scene of the crime after the gross vehicular manslaug
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