Filed 12/31/19 P. v. Martinez CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

EDGAR BENITEZ MARTINEZ,

Defendant and Appellant.

H045108

(Santa Clara County

Super. Ct. No. F1554978)
Appellant Edgar Benitez Martinez was intoxicated when he drove his truck into a car that had pulled to a stop in the bicycle lane. The driver of the car, who was standing behind it and wearing a safety vest, was struck and killed. Benitez Martinez, who had suffered two prior drunk driving convictions in 2007 and 2014, did not stop at the scene of the accident.

A jury acquitted Benitez Martinez of murder but found him guilty of the lesser-included offense of involuntary manslaughter, as well as gross vehicular manslaughter while intoxicated, leaving the scene of an accident resulting in injury or death, driving under the influence of alcohol, and driving with a blood alcohol level over 0.08 percent. The jury also found true the allegation that Benitez Martinez had suffered two prior drunk driving convictions. The trial court imposed a sentence of 15 years to life consecutive to two years’ imprisonment.

On appeal, Benitez Martinez raises several claims of error, including sufficiency of the evidence, the prohibition on multiple convictions and punishments arising from a single act, and ineffective assistance of counsel. The Attorney General concedes that one of Benitez Martinez’s two convictions for leaving the scene should be stricken, and we agree. For the reasons discussed below, we conclude Benitez Martinez’s other claims of error are without merit and in all other respects affirm the judgment.

I. STATEMENT OF THE CASE

At approximately 6:30 p.m. on Sunday, April 5, 2015, Alberto Sanchez, Sr. pulled his red Honda hatchback to a stop in the bicycle lane on westbound Tennant Avenue, near the southbound 101 freeway exit. Sanchez turned on the Honda’s hazard lights and went behind the car to check a rear light. Sanchez’s teenage son remained inside the car. Both Sanchez and his son wore reflective safety vests. It was very cloudy but still daylight, and visibility was good.

Driving a black truck, Benitez Martinez was headed westbound on Tennant Avenue towards Sanchez. Nearby, Corporal Joseph Burdick, an off-duty police officer on his way to work, exited the northbound 101 freeway and also began driving westbound on Tennant Avenue. Burdick noticed a black truck driving in front of him in the bicycle lane at approximately 35 to 40 miles per hour. Burdick had no trouble seeing the red Honda and saw Sanchez’s son sitting in the front passenger seat but did not see Sanchez standing next to the car.

Louis Hill, a criminal investigator for the district attorney’s office, was driving home. Hill exited the southbound 101 freeway and was the first car waiting at the intersection to turn left onto eastbound Tennant Avenue. Hill saw Sanchez standing outside the red Honda and then observed Benitez Martinez’s truck pass through the Tennant Avenue intersection and collide with the Honda before running Sanchez over.

After hitting the Honda, Benitez Martinez continued driving, dragging Sanchez with the underside of his truck for approximately 197 feet. Benitez Martinez’s truck pushed the Honda approximately 145 feet from the initial point of impact. Sanchez was killed by the accident, and his son suffered various cuts and bruises. Benitez Martinez did not stop at the scene.

Some of the eyewitnesses, including Burdick and Hill, stopped Benitez Martinez shortly after he left the scene. When Burdick approached Benitez Martinez, Benitez Martinez said, “ ‘I’m sorry.’ ”

Officer Max Cervantes used a preliminary alcohol screening device to measure Benitez Martinez’s breath alcohol content (BAC). Samples taken at approximately 8:01 p.m. and 8:05 p.m. resulted in BAC measurements of 0.183 percent and 0.185 percent, respectively.

Detective Sheena Pevehouse interviewed Benitez Martinez at the police station approximately one hour after the accident. Benitez Martinez admitted to drinking 14 to 15 bottles of beer that day. He told Pevehouse that “he thought the car he hit was gray because that was the car that followed him” to his residence. Pevehouse testified that she believed Burdick was driving the gray car. During cross-examination, trial counsel asked Pevehouse whether she “believe[d] that [Benitez Martinez] knew he had struck somebody?” Pevehouse replied, “No.”

The Santa Clara County District Attorney’s Office charged Benitez Martinez by information with murder of Sanchez (count 1; Pen. Code, § 187), gross vehicular manslaughter while intoxicated (count 2; Pen. Code, § 191.5, subd. (a)) and a prior conviction allegation pursuant to Penal Code section 191.5, subdivision (d) (hereafter Pen. Code, § 191.5(d)), leaving the scene of an accident resulting in death to Sanchez (count 3; Veh. Code, § 20001, subds. (a) & (b)(2) ), driving while intoxicated (count 4; § 23153, subd. (a)), driving while intoxicated with a blood alcohol level of at least 0.08 percent (count 5; § 23153, subd. (b)), and leaving the scene of an accident resulting in injury to Sanchez’s son (count 6; § 20001, subds. (a) & (b)(1)).

Thirteen witnesses testified at trial—twelve for the prosecution and one for the defense. Of the twelve prosecution witnesses, seven were eyewitnesses. Humberto and Elvia Arellano testified that they were driving behind Benitez Martinez and had no trouble seeing the red Honda but did not see Sanchez standing outside the Honda. Marco Perez, who was driving in the opposite direction on eastbound Tennant Avenue, testified that he saw Sanchez standing in front of the Honda and saw Sanchez’s son standing nearby.

Benitez Martinez’s employer, the sole defense witness, testified about Benitez Martinez’s good character and reputation for caution. The defense presented no additional evidence to the jury, and Benitez Martinez did not testify.

The jury acquitted Benitez Martinez of murder in count 1 but found him guilty of the lesser included offense of involuntary manslaughter. The jury convicted Benitez Martinez of all remaining counts and found true the allegation attached to count 2 that he had suffered a prior conviction within the meaning of Penal Code section 191.5(d).

The trial court sentenced Benitez Martinez to an indeterminate term of 15 years to life on count 2, consecutive to a 2-year term on count 3, a 2-year term on count 4, to be served concurrently with count 3, two, 2-year terms on counts 5 and 1 that were imposed and stayed pursued to Penal Code section 654, and a 2-year term on count 6, to be served concurrently with all other counts. The trial court awarded custody credits of 730 days on counts 3, 4, 5, and 6 and 275 days on counts 1 and 2 and also ordered Benitez Martinez to pay various fines and fees that are not at issue in this appeal.

II. DISCUSSION

Benitez Martinez challenges the sufficiency of evidence supporting his conviction under section 20001 for leaving the scene of an accident involving injury or death and the sentencing enhancement under Penal Code section 191.5(d). He also contends that trial counsel provided ineffective assistance by making various evidentiary concessions during closing arguments and by failing either to object to the admission of certain evidence or request an appropriate limiting jury instruction. Benitez Martinez also asserts prejudice from the cumulative effect of counsel’s alleged errors.

A. Sufficiency of the Evidence

Benitez Martinez argues insufficient evidence supports his convictions of section 20001 on counts 3 and 6 and his sentence enhancement under Penal Code section 191.5(d) as to count 2. Specifically, Benitez Martinez challenges his section 20001 convictions on the basis that the record lacks substantial evidence that he knew that he had injured anyone or that the accident was of a type likely to cause injury. He argues insufficient evidence supports the enhancement because the documentary evidence proffered by the prosecution did not amount to substantial evidence that Benitez Martinez previously suffered a qualifying conviction (i.e., two or more § 23152 convictions, or at least one § 23153 conviction) within the meaning of Penal Code section 191.5(d).

1. Legal Principles

“ ‘ “When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” [Citation.] We determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” [Citation.] In so doing, a reviewing court “presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” ’ ” (People v. Dalton (2019) 7 Cal.5th 166, 243–244 (Dalton).)

2. Vehicle Code section 20001

Benitez Martinez contends he cannot be convicted of violating section 20001 unless the prosecution proved that he subjectively possessed actual knowledge that an individual involved in the accident was injured or killed. The Attorney General responds that this contention is “meritless” because “[t]he record shows that in broad daylight, [Benitez Martinez] collided with the victims’ vehicle, threw it onto the sidewalk, then rolled over and dragged [Sanchez’s] body along the road” and Benitez Martinez “knew or should have known the accident resulted in death or injury.” Benitez Martinez counters that the Attorney General’s failure to cite to supporting authority “is not surprising[] because it does not reflect the law” and maintains that the standard for the perpetrator’s knowledge of injury to another is subjective, not objective.

Though nominally presented as a sufficiency of the evidence challenge, Benitez Martinez’s section 20001 claim contains two distinct inquiries—an issue of law regarding whether the statute’s knowledge element requires proof of subjective actual awareness of injury or death and a factual question whether the record reflects sufficient evidence to support the jury’s finding that Benitez Martinez possessed the requisite knowledge. We review Benitez Martinez’s legal challenge to the statutory knowledge element de novo, and his factual challenge for substantial evidence. (People v. Jones (2001) 25 Cal.4th 98, 103; Dalton, supra, 7 Cal.5th at p. 243.)

Citing People v. Holford (1965) 63 Cal.2d 74 (Holford), People v. Hamilton (1978) 80 Cal.App.3d 124 (Hamilton), and People v. Mayo (1961) 194 Cal.App.2d 527 (Mayo), Benitez Martinez argues that section 20001 requires the prosecution to prove that the defendant actually knew a person was injured in the accident in order to secure a conviction under section 20001. The Attorney General counters that proof of either actual or constructive knowledge satisfies the crime’s knowledge element.

Section 20001, subdivision (a), provides, “The driver of a vehicle involved in an accident resulting in injury to a person, other than himself or herself, or in the death of a person shall immediately stop the vehicle at the scene of the accident and shall fulfill the requirements of Sections 20003 and 20004.” “[A]lthough the Vehicle Code section 20001(a) offense is commonly referred to as a ‘hit and run,’ . . . the offense is ‘more accurately described as fleeing the scene of an injury accident.’ ” (People v. Martinez (2017) 2 Cal.5th 1093, 1102.) “Under Vehicle Code section 20001(a), ‘[t]he occurrence of an injury accident is a condition precedent’ to the imposition of a duty to stop, provide identification, and render aid—‘but [it] is not an element of the crime’ in the sense that it constitutes part of the conduct forbidden by the statute.” (Id. at pp. 1102–1103.) “[A] defendant who flees the scene of an injury accident has committed a crime even if the accident was solely the result of the victim’s own negligence.” (Id. at p. 1103.)

Holford, supra, 63 Cal.2d 74 is the seminal case from the California Supreme Court on the legal elements of section 20001. Holford states that the prosecution need not prove a defendant’s actual knowledge of a victim’s injuries in order to secure a conviction under the statute. Rather, the California Supreme Court in Holford observed that “the driver who leaves the scene of the accident seldom possesses actual knowledge of injury; by leaving the scene he forecloses and opportunity to acquire such actual knowledge. Hence a requirement of actual knowledge of injury would realistically render the statute useless. We therefore believe that criminal liability attaches to a driver who knowingly leaves the scene of an accident if he actually knew of the injury or if he knew that the accident was of such a nature that one would reasonably anticipate that it resulted in injury to a person.” (Holford, at p. 80, italics added.) As this passage makes clear, Holford does not, as Benitez Martinez argues, constrain the requisite knowledge element for a section 20001 offense to what a defendant “actually knew” because “a requirement of actual knowledge of injury would realistically render the statute useless.” (Holford, at p. 80; see also People v. Harbert (2009) 170 Cal.App.4th 42, 52 [“Holford . . . held that ‘ “constructive knowledge of injury” is sufficient to support a conviction’ ”].) Instead, the prosecution can also secure a conviction under the statute if it proves beyond a reasonable doubt that the nature of the accident would cause a person to “reasonably anticipate” that the accident would result in injury to someone. (Holford, at p. 80.)

The cases cited by Benitez Martinez to argue section 20001 requires actual knowledge of injury do not assist him. Mayo did not decide whether a section 20001 conviction requires proof of actual, subjective knowledge, merely observing that “[o]f course, knowledge, like other facts, may be proved by circumstantial evidence.” (Mayo, supra, 194 Cal.App.2d at p. 535.) In Hamilton, the section 20001 challenge was raised in the context of instructional error and is factually inapposite because the defendant in that case did not actually collide with another vehicle. (Hamilton, supra, 80 Cal.App.3d at pp. 133–134.)

Turning to Benitez Martinez’s attack on the prosecution’s evidence, Benitez Martinez does not appear to contend that the nature of the accident was insufficient to put him on notice that it could result in injuries to a person. Instead, Benitez Martinez argues there was evidence from which the jury could infer that Benitez Martinez wrongly but honestly believed that the driver of the other car in the accident was uninjured because Benitez Martinez believed the gray car that followed his truck after the accident was the car involved in the collision. Benitez Martinez also cites conflicts in the evidence over whether any individuals were inside or near the victims’ car. Benitez Martinez relies on the evidence that he apologized to Burdick after the accident, suggesting that he believed the uninjured Burdick was the driver of the other car. Benitez Martinez also cites Pevehouse’s negative answer in response to defense counsel’s question about whether Pevehouse “believe[d] that [Benitez Martinez] knew he had struck somebody.”

In essence, Benitez Martinez asks us to reweigh the evidence and draw competing inferences from it—a task inappropriate for a reviewing court. It is the “ ‘ “ ‘exclusive province’ ” ’ ” of the jury “ ‘ “ ‘to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.’ ” ’ ” (Dalton, supra, 7 Cal.5th at p. 209.) It is irrelevant whether the evidence permitted the jury to draw “contrary inference[s]” that were “equally or more reasonable,” as “‘ “ ‘[c]onflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment.’ ” ’ ” (Dalton, at p. 209.) The only relevant question is whether the evidence presented would permit a reasonable juror to rationally infer that Benitez Martinez knew or should have known he was involved in an accident resulting in injury to a person or death. We conclude ample evidence supports that inference.

Benitez Martinez struck and killed Sanchez during daylight hours. Percipient witnesses uniformly testified that conditions were bright, clear, and unimpeded by glare from the sun and that both Sanchez and his red Honda were visible in the bicycle lane. Both Perez and Hill testified that they observed Sanchez standing in the vicinity of the red Honda, the subsequent collision, and Benitez Martinez’s truck running over and dragging Sanchez as Benitez Martinez drove away. The jury could also infer that Benitez Martinez was aware he hit an occupied car based on his apology to Burdick minutes after the collision and subsequent admission to Pevehouse that he “thought the car he hit was gray because that was the car that followed him to the house.” Benitez Martinez also admitted to Pevehouse that he left the accident scene—not because he believed the accident had caused no injuries—but because he knew he was in trouble. The jury additionally saw photographs depicting the extent of Sanchez’s injuries, the reflective safety vest Sanchez wore, the distance that Benitez Martinez displaced both Sanchez and the red Honda, and the damage to Benitez Martinez’s black truck. From this evidence the jury could have found beyond a reasonable doubt that the nature of the accident was such that Benitez Martinez “would reasonably [have] anticipate[d] that it resulted in injury to a person.” (Holford, supra, 63 Cal.2d at p. 80.)

In sum, we conclude that substantial evidence supports the jury’s finding that Benitez Martinez possessed actual or constructive knowledge he was involved in an accident resulting in injury to a person or death under section 20001.

3. Penal Code Section 191.5(d)

In a prosecution for gross vehicular manslaughter while intoxicated, Penal Code section 191.5(d) states that, where the prosecution pleads and proves that a defendant suffered a conviction under section 23152 punishable under sections 23540, the defendant “shall be punished by imprisonment in the state prison for a term of 15 years to life.” A defendant convicted of a second DUI violation within 10 years of a prior DUI conviction is punishable under section 23540. The prosecution alleged that the sentencing enhancement under Penal Code section 191.5(d) applied because Benitez Martinez’s 2007 DUI conviction rendered the 2014 DUI conviction punishable under section 23540. As with the substantive elements of an offense, the prosecution was required to prove all elements of this enhancement beyond a reasonable doubt. (People v. Miles (2008) 43 Cal.4th 1074, 1082.)

Benitez Martinez does not challenge on appeal the evidence that he had suffered a DUI offense in 2014. However, he does assert the evidence was insufficient to prove that he was also convicted of a DUI in 2007.

To prove that Benitez Martinez had suffered a second DUI conviction within 10 years for purposes of Penal Code section 191.5(d), the prosecution introduced into evidence a misdemeanor complaint filed against Benitez Martinez for a DUI offense on September 13, 2014, alleging a prior conviction for the same offense on February 3, 2007; a traffic citation issued to Benitez Martinez for the 2014 DUI; a fingerprint sheet for the 2014 DUI; an executed plea agreement for the 2014 DUI; the corresponding minute order; a “Notice of Completion Certificate” issued in 2008 to Benitez Martinez by the California Department of Motor Vehicles (DMV certificate) for completing the “Driving-Under-the-Influence Program” for the 2007 DUI; and a declaration from the custodian of records authenticating the DMV certificate. Pevehouse also testified that Benitez Martinez told her in their interview on the evening of the accident that he had suffered a DUI conviction in 2007.

We agree with Benitez Martinez that the records of the 2014 conviction, standing alone, do not establish that he had suffered a prior DUI conviction in 2007. However, the prosecution introduced other evidence that Benitez Martinez had been convicted of a DUI in 2007—namely Pevehouse’s testimony that Benitez Martinez told her he had suffered a DUI conviction in 2007 and the DMV certificate issued in 2008 to Benitez Martinez that stated he had completed a “Driving-Under-the-Influence Program” for the 2007 DUI.

Citing People v. Guerrero (1988) 44 Cal.3d 343 (Guerrero) and People v. Reed (1996) 13 Cal.4th 217 (Reed), Benitez Martinez argues the DMV certificate is not substantial evidence because it falls outside the record of conviction of Benitez Martinez’s 2007 DUI conviction. The Attorney General responds that Benitez Martinez conflates the difference between proof of the substance of a prior conviction and proof of the fact of a prior conviction, citing People v. Martinez (2000) 22 Cal.4th 106 (Martinez).

The Attorney General has the better argument. In both Guerrero and Reed, the California Supreme Court considered the type of evidence on which the prosecution could rely to prove the nature and circumstances of the conduct that led to the challenged convictions. (See Martinez, supra, 22 Cal.4th at pp. 117–118 [describing the question in Guerrero as the “permissible scope of proof to establish the substance of a prior conviction, i.e., the nature and circumstances of the underlying conduct”]; Reed, supra, 13 Cal.4th at pp. 220–221 [considering the admissibility of evidence to show “the circumstances of the prior crime” to prove defendant had committed a “serious felony”].) Guerrero and Reed would support Benitez Martinez’s argument if the prosecution had to prove anything about the nature of the conduct leading up to the 2007 conviction. But that is not the case. Here, the prosecution only needed to prove the fact of the convictions in 2007 and 2014, a question unaddressed by Guerrero and Reed. Instead, Martinez provides the most relevant precedent.

Under the rule announced by the California Supreme Court in Martinez, evidence “other than the record of conviction” can be used to prove the fact of a prior conviction “provided [the evidence] satisfies applicable rules of admissibility.” (Martinez, supra, 22 Cal.4th at p. 116.) As we explain in the following section, the DMV Certificate associated with the 2007 conviction was properly authenticated, and the certificate was otherwise admissible. In addition, the jury heard from Pevehouse that Benitez Martinez admitted to her that he had a DUI conviction from 2007, and Benitez Martinez does not challenge the admissibility of Pevehouse’s testimony on this point. We conclude substantial evidence supports the jury’s conclusion that Benitez Martinez had suffered two prior DUI convictions and, therefore, its true finding on the enhancement under Penal Code section 191.5(d).

B. Ineffective Assistance of Counsel

Benitez Martinez alleges his trial counsel was ineffective by conceding during closing arguments that the evidence reflected that Benitez Martinez had suffered two prior DUI convictions and in failing to object to the admission of the DMV certificate or request an appropriate limiting jury instruction, as well as prejudice from the cumulative effect of counsel’s alleged errors.

1. Legal Principles

A criminal defendant’s right to effective assistance of counsel is guaranteed under the Sixth Amendment to the United States Constitution and article I, section 15 of the California Constitution. (Strickland v. Washington (1984) 466 U.S. 668, 685–686; People v. Ledesma (1987) 43 Cal.3d 171, 215.) Benitez Martinez bears the burden of demonstrating by a preponderance of the evidence that his counsel’s performance fell below an objective standard of reasonableness. (Strickland, at p. 687.) To satisfy Strickland’s two-part test, a “defendant must show that counsel’s representation fell below an objective standard of reasonableness” (id. at p. 688) and “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Id. at p. 694.)

“It is particularly difficult to prevail on an appellate claim of ineffective assistance. On direct appeal, a conviction will be reversed for ineffective assistance only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation. All other claims of ineffective assistance are more appropriately resolved in a habeas corpus proceeding.” (People v. Mai (2013) 57 Cal.4th 986, 1009.)

“Whether to object at trial is among ‘the minute to minute and second to second strategic and tactical decisions which must be made by the trial lawyer during the heat of battle’ ” and “[s]ometimes, the best action an attorney can take regarding an available objection is not to make it.” (People v. Riel (2000) 22 Cal.4th 1153, 1202.)

2. Analysis

During closing arguments, trial counsel told the jury: “I can’t dispute what the paperwork says, that [Benitez Martinez] has been convicted of two DUI’s. I can’t dispute that he attended a class approximately seven years ago for DUI education. . . . That’s evidence that you have. I wasn’t at that class. I don’t know what the curriculum of that class was. I don’t know if it was in English or Spanish. I don’t know if he remembers any of it. All that being said, knowing and having the thought that I don’t care about human life is where the murder charge turns. . . . Knowing and thinking are two completely different elements.” Benitez Martinez complains that trial counsel was ineffective for conceding the prior DUI convictions. The Attorney General responds that trial counsel made a “strategic concession,” the success of which “is demonstrated by the jury’s acquittal on the murder charge and conviction of the lesser included offense.”

“The decision of how to argue to the jury after the presentation of evidence is inherently tactical” and counsel is not incompetent for making that decision based “on how the trial actually went, not how it might have gone.” (People v. Freeman (1994) 8 Cal.4th 450, 498.) “[G]ood trial tactics often demand complete candor with the jury,” particularly “in light of the weight of the evidence incriminating a defendant.” (People v. Mitcham (1992) 1 Cal.4th 1027, 1060.) Rational counsel “may be more realistic and [thus] effective by avoiding sweeping declarations of his or her client’s innocence.” (Id. at pp. 1060–1061.)

The prosecution’s evidence against Benitez Martinez, consisting of testimony from a dozen witnesses and nearly three dozen exhibits, was substantial. Benitez Martinez’s trial counsel’s overwhelming imperative was no doubt to defend against the most serious crime charged, murder. Benitez Martinez’s counsel was successful in this goal. Trial counsel’s closing argument demonstrates that he conceded the prior convictions but argued they did not show knowledge sufficient to support the murder conviction. Under these circumstances, Benitez Martinez has not carried his burden of showing that his trial counsel acted irrationally by “volunteering the fact of the prior [] conviction[s] and thus appearing to be completely candid and forthright” with the jury. (People v. Hinton (2006) 37 Cal.4th 839, 877.)

Benitez Martinez also argues his trial counsel was ineffective for failing to object to the “unauthenticated” DMV certificate and for “fail[ing] to ask for a limiting instruction advising the jury it could not consider [the DMV certificate] to determine that appellant had suffered a 2007 DUI conviction.” Benitez Martinez’s authentication argument fails because the DMV certificate was authenticated by a custodian of records, so it was rational for counsel not to request a limiting instruction. In addition, the certificate was secured by a subpoena tuces decum and accompanied by an authenticating affidavit and was therefore admissible as a business record. (See In re Troy D. (1989) 215 Cal.App.3d 889, 903.) A defendant claiming ineffective assistance of counsel must demonstrate deficient performance by a preponderance of the evidence. (In re Thomas (2006) 37 Cal.4th 1249, 1257.) Benitez Martinez falls short of the requisite standard, and his ineffective assistance claim accordingly fails. We do not address Benitez Martinez cumulative error claim, as there is no error to cumulate.

C. Multiple Convictions

Relying on People v. Newton (2007) 155 Cal.App.4th 1000 (Newton), Benitez Martinez contends that he was improperly convicted for two violations of section 20001 because he committed only one act of fleeing the scene. The Attorney General agrees.

In Newton, the Court of Appeal considered the question “where an accident results in injury to more than one person, and the person causing the accident flees the scene, is there a single violation of section 20001 or are there multiple violations?” (Newton, supra, 155 Cal.App.4th at p. 1002.) The court concluded that, notwithstanding the number of victims in an accident, “the conduct commanded by section 20001, to stop, identify, and assist, is only committed once” (id. at p. 1003) and therefore the driver could be convicted of only one violation of section 20001. (Id. at p. 1005.)

Neither party challenges the holding in Newton, and we see no reason to depart from its analysis. At least one other court has similarly relied on Newton to dismiss two convictions for section 20001 in an accident involving three victims because “there can be only one conviction for leaving the scene of an accident.” (People v. Calles (2012) 209 Cal.App.4th 1200, 1217.) Based on these precedents, we agree that Benitez Martinez should not have been convicted of two counts of section 20001 arising out of a single accident. We will therefore reverse the judgment and instruct the trial court to select one of the convictions from counts 3 and 6, impose the appropriate sentence on that count, and dismiss the other pursuant to Penal Code section 1385, subdivision (a).

III. DISPOSITION

The judgment is reversed. The matter is remanded for the trial court to select one leaving the scene of the accident conviction from counts 3 and 6, impose the appropriate sentence on that count, and dismiss the remaining count pursuant to Penal Code section 1385, subdivision (a). The trial court is directed to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

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Danner, J.

WE CONCUR:

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Greenwood, P.J.

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Grover, J.

H045108

People v. Martinez