People v. Calhoun11/2/2004
in injury to any person, other than himself or herself, or in the death of any person shall immediately stop the vehicle at the scene of the accident and shall fulfill the requirements of Sections 20003 and 20004." (§ 20001, subd. (a); Stats.1959, ch. 3, p. 1661.) Section 20001, subdivision (b) provides: "(1) Except as provided in paragraph (2), any person who violates subdivision (a) shall be punished by imprisonment in the state prison, or in a county jail for not more than one year, or by a fine of not less than one thousand dollars ($1,000) nor more than ten thousand dollars ($10,000), or by both that imprisonment and fine. [ ] (2) If the accident described in subdivision (a) results in death or permanent, serious injury, any person who violates subdivision (a) shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not less than 90 days nor more than one year, or by a fine of not less than one thousand dollars ($1,000) nor more than ten thousand dollars ($10,000), or by both that imprisonment and fine...."
The People also cite People v. McCoy (2001) 25 Cal.4th 1111, 108 Cal.Rptr.2d 188, 24 P.3d 1210 as support for their position. However, McCoy involved an aider and abettor's liability for an offense. (Id. at pp. 1116- 1123, 108 Cal.Rptr.2d 188, 24 P.3d 1210.) Because McCoy does not involve the application of an enhancement to an aider and abettor of an underlying offense, it is inapposite and does not persuade us to reach a contrary conclusion.
D
Because section 20001, subdivision (c) applies only to persons who directly commit an underlying offense and does not apply to aiders and abettors of those persons, it does not apply to Calhoun in the circumstances of this case and the trial court erred by not granting his Penal Code section 995 motion to dismiss the section 20001, subdivision (c) allegations. The parties agree that Calhoun did not personally or directly kill either Jump or Brian Hanson, the deceased victims in this case. Therefore, Calhoun's guilt of the Penal Code section 192, subdivision (c)(1) offenses must have been based on vicarious liability as an aider and abettor of Waller, the person who directly killed the victims with his car. For purposes of **548 section 20001, subdivision (c), vicarious or derivative liability as an aider and abettor of a person who directly committed a Penal Code section 192, subdivision (c)(1) offense is insufficient to constitute fleeing the scene of a crime "after committing" that offense. (§ 20001, subd. (c).) Accordingly, the trial court erred by imposing on Calhoun two 5-year enhancements under section 20001, subdivision (c). [FN9]
FN9. Because we dispose of Calhoun's appeal of the section 20001,
subdivision (c) enhancements on this ground, we need not address his alternative contentions.
*1047 II
WALLER'S APPEAL
Imposition of Upper Terms
Waller's original brief contends the trial court abused its discretion by imposing upper six-year terms for his Penal Code section 192, subdivision (c)(1) offenses based on an aggravating factor that multiple victims were involved. Subsequently, in response to our request for supplemental briefing on the effect, if any, of Blakely v. Washington, supra, --- U.S. ----, 124 S.Ct. 2531, 159 L.Ed.2d 403 on the sentence imposed on him, Waller submitted a supplemental letter brief contending the trial court's imposition of the upper six-year terms also violates the standards set forth in Blakely. Specifically, he asserts that under Blakely he was denied his constitutional rights to have a jury determine the facts in support of an aggravated sentence and to have those facts determined by proof beyond a reasonable doubt.
A
The jury found Waller guilty on two counts o
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