Opinion
H045779
09-13-2019
THE PEOPLE, Plaintiff and Respondent, v. HORACIO AGUILAR ALCANTAR, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. SS161236A)
A jury convicted appellant Horacio Aguilar Alcantar of a number of crimes arising out of a traffic accident that injured two people, leaving one paralyzed. The trial court sentenced Alcantar to nine years in prison. Alcantar contends on appeal that the trial court erred in denying his motion to suppress evidence found in a warrantless search of his room; in finding he had admitted two enhancements for causing great bodily injury; and in imposing sentence. Alcantar also argues his trial counsel was constitutionally ineffective for failing to object to the trial court's denial of probation. For the reasons explained below, we affirm the judgment.
I. FACTS AND PROCEDURAL BACKGROUND
A. Procedural History
Alcantar was charged by information with driving under the influence of alcohol and causing injury (Veh. Code, § 23153, subd. (a); count 1); driving with a blood alcohol level of .08 percent or more and causing injury (§ 23153, subd. (b); count 2); and hit and run resulting in permanent, serious injury (§ 20001, subd. (b)(2) (hereafter § 20001(b)(2)); count 3). The information also alleged in counts 1 and 2 that Alcantar had personally inflicted bodily injury on another, causing the person to become comatose due to brain jury or suffer paralysis (Pen. Code, § 12022.7, subd. (b)) (hereafter Penal Code section 12022.7(b)); and had caused bodily injury to more than one victim (§ 23558).
Unspecified statutory references are to the Vehicle Code.
The amended information originally charged count 3 as a violation of section 20001, subdivision (a). The People amended count 3 to a violation of section 20001, subdivision (b)(2) on the first day of trial. Although Alcantar states that count 2 was orally amended to allege a violation of section 23153, subdivision (b)(2), our review of the transcript reflects that this discussion related to the amendment to count 3. There is no section 23153, subdivision (b)(2) in the Vehicle Code. (See § 23153.)
Jury trial began on February 26, 2018. That day, Alcantar admitted the allegations attached to counts 1 and 2 of personally inflicting bodily injury on another, causing the person to become comatose due to brain injury or suffer paralysis. (Pen. Code, § 12022.7(b).) Alcantar also filed a motion to suppress evidence, seeking to suppress evidence from "an illegal search and seizure by officers of the Salinas Police Department occurring on or about July 16, 2016." The prosecution filed an opposition to his motion on the following day, and the trial court conducted a hearing. After hearing from a number of witnesses and receiving other evidence, the trial court denied Alcantar's motion to suppress. The jury trial resumed on February 27, 2018.
The case was submitted to the jury on March 2, 2018. After deliberating for one hour, the jury found Alcantar guilty of counts 1, 2, and 3, and found true both enhancements alleged under section 23558.
At sentencing on April 25, 2018, the trial court denied probation and sentenced Alcantar on count 2 to a term of two years and imposed a five year consecutive term for the allegation under Penal Code section 12022.7(b) (based on the injury to the person who was paralyzed) and a one year consecutive term for the section 23558 enhancement (based on the injury to the other victim), for a total term of eight years on count 2. On count 3, the trial court imposed a term of one year consecutive to count 2. On count 1, the trial court imposed and stayed pursuant to Penal Code section 654 the middle term of two years and a five year consecutive term for the allegation under Penal Code section 12022.7(b) and a one year consecutive term for the section 23558 enhancement. Alcantar's aggregate sentence was nine years in prison. The trial court also imposed a number of fines and fees.
B. Facts Elicited at Trial
The evidence heard by Alcantar's jury was largely related to the events of the evening of the accident, July 16, 2016.
Marco Perez was going that night to the Casa de Pollo restaurant in Salinas with his cousin, Daniel Perez Galindo. As Galindo was driving on San Juan Grade Road in Salinas, a dark-colored truck swerved into their lane and hit them. Perez did not see the driver of the car that hit them. No one from the other car came to check on Perez or Galindo or provided an address or phone number to them. As a result of the accident, Galindo was seriously injured and was bleeding from the head. Perez's knee, shoulder, and arm were injured. Galindo spent approximately five months in the hospital following the collision and has been unable to walk, use his arms, or talk since the crash.
George Davis heard the accident from his apartment. After hearing the sound, he looked out the window and saw a truck "rolling south," ending up in a ditch. Davis left his apartment, ran over to the truck and asked the occupant, who was sitting at the steering wheel, if he was okay. The man, whom Davis identified in court as Alcantar, did not respond.
At the scene, Davis saw Alcantar make a phone call on his cell phone, but Davis did not understand what Alcantar was saying because the conversation was in Spanish. Approximately one to two minutes later, a silver truck "pull[ed] up." Alcantar climbed out of the passenger door, got in the silver truck, and left before any emergency personnel arrived. Davis did not see Alcantar approach the other car that had been in the accident. The prosecutor asked Davis, "Do you have any doubt that the person you have pointed out to us in court today was the person you saw behind the wheel of that vehicle back on July 16 of 2016?" Davis responded, "No. I was within inches."
Davis gave the police a description of the driver of the truck, telling them the driver was a bald-headed man with a tattoo on the top of his head who was wearing a red shirt. Later that evening, the police drove Davis around the corner and showed him a person. Davis said "yeah, that's him." At trial, the prosecutor showed Davis a photograph, admitted into evidence as exhibit 17, and Davis said the man in the photograph was wearing the same outfit as had the man in the truck.
Maria Gabriela Gaucin was at Casa de Pollo that evening. She saw a man who had a Raiders tattoo on his head, was "already drunk," "almost fell several times," and was "unable to walk." Gaucin made an in-court identification of the man with the tattoo on his head as Alcantar. Alcantar was ordering lots of trays of beer at the restaurant. From the restaurant, Gaucin saw Alcantar get into a black pickup truck with big tires; he was the driver. No one else got into the truck with Alcantar.
Gaucin left soon after Alcantar. She came upon the accident scene and saw the truck Alcantar had gotten into at the restaurant. She did not see Alcantar at the crash site. She did not see any other truck arrive to pick up the driver. The police arrived at the accident scene approximately 15 minutes after Gaucin got there. Gaucin spoke with the police and told them what she had observed at the restaurant.
About an hour later, the police later took Gaucin somewhere and asked her if she recognized the person. She recognized him as Alcantar, the man with the Raiders tattoo on his head who had been at Casa de Pollo.
Kendrick Brown was working as a bouncer at Casa de Pollo that night. Brown helped Alcantar get cash from an ATM machine. Brown was "pretty sure" Alcantar asked him for help because Alcantar was drunk. Alcantar was an "older, heavyset gentleman, [with a] shaved head with tattoos on his head." Brown saw Alcantar get into the driver's side of a black truck. Brown saw Alcantar drive away; Alcantar was the only person in the truck.
Cameron Mitchell was a police officer with the Salinas Police Department. He watched security footage from Casa de Pollo taken on July 16, 2016, in which he observed Alcantar sitting at a table with "buckets with beer." On the footage, Mitchell saw Alcantar getting into the black truck; Alcantar was the only person in the black truck.
Matthew Donatoni was a police officer with the City of Salinas who was on duty that night and was dispatched to the scene of the accident. Donatoni observed a black truck in the drainage ditch on the eastbound side of San Juan Grade Road. There was no one inside the truck, in which the airbag had deployed, and the keys were not inside. Donatoni spoke with Davis, who told him the driver of the truck had been wearing a red shirt and had tattoos on his head.
Froylan Aranda was a police officer with the City of Salinas. He was dispatched to the collision on San Juan Grade Road at approximately 8:40 p.m. Aranda saw a black pickup truck that had been involved in the collision and was stuck in an embankment. Aranda approached the black truck, but there was no one inside. Registration and insurance paperwork inside the black truck indicated that the truck was registered to "Horacio Aguilar" at an address on Northridge Drive. When Aranda was investigating the crash, no person from the truck approached the victims' car. It would take approximately five minutes to drive from Casa de Pollo to the scene of the collision and "a minute or two" to drive to Alcantar's house.
Officer Donatoni and other officers went to the Northridge Drive address, which was two or three minutes away from the accident scene. The officers arrived at approximately 9:05 p.m. and knocked on the door of the house; Alcantar's sister opened the door. She gave them permission to go inside. The officers "walked to the back room. [Alcantar] was covered in a brown blanket. Once we removed the blanket [Donatoni] observed the tattoos on his head as well as his red sweatshirt." Donatoni handcuffed Alcantar "to detain him while we conducted our investigation." Donatoni identified exhibit 17 as "the photograph of the defendant and what he was wearing when we contacted him."
Edgar Garcia was a police officer with the City of Salinas. He was dispatched to the scene of the accident and then to the address on Northridge Drive. When Garcia first observed Alcantar that evening, Garcia could smell alcohol on Alcantar, and Alcantar had a "staggered g[ait]." Alcantar also had bloodshot, watery eyes. Garcia did not see any injuries on Alcantar. Garcia took Alcantar to the hospital because the officers suspected that Alcantar had been in a car accident.
Officer Garcia conducted field sobriety tests on Alcantar at the hospital. Based on the results of those tests, Garcia concluded that Alcantar was under the influence of an alcoholic beverage while driving a vehicle. Garcia then placed Alcantar under arrest and took him into custody. Alcantar took a blood test at 10:50 p.m. The blood alcohol level in Alcantar's blood was ".183."
The defense presented several witnesses. Douglas Ayres was a golf course superintendent at a country club. Ayres had known Alcantar for three years because Alcantar worked at the club. Ayres believed Alcantar to be an honest person of high integrity.
Alcantar testified in his own defense. Alcantar's full name is Horacio Alcantar Aguilar, and he goes by the last name of Aguilar. On July 16, 2016, he was living at the Northridge Drive address and had dinner at Casa de Pollo. He walked to the restaurant. When he went to Casa de Pollo, Alcantar's black truck was parked on the street where he lived. He left the keys to his truck in his bedroom.
For consistency with the usage at trial and briefing on appeal, we refer to appellant as "Alcantar."
Alcantar was drinking buckets of beer at Casa de Pollo. He walked home from the restaurant. When Alcantar got home, he played with his son and went to bed.
After the officers arrived in his room at the house on Northridge Drive, they took him outside in handcuffs. He was put into the police car for about two or two and a half hours. The police took him to the hospital. Alcantar did not have injuries.
Alcantar admitted the black truck that had been identified by other witnesses as the truck in the accident belonged to him, and he was the only person who drove it. Alcantar identified exhibit 17 as a photograph of himself taken on July 16, 2016, in which he was wearing the sweatshirt he had been wearing at Casa de Pollo. Alcantar had a Raiders tattoo on his head on July 16. Alcantar did not know who was driving his truck when it was involved in a collision that night. When interviewed by the police, Alcantar did not tell them that he had walked to Casa de Pollo.
Tara Godoy was a registered nurse and testified as a defense expert in the field of forensic nursing and trauma treatment. Godoy testified that in light of the seriousness of the July 16, 2016 accident, "you'd expect to see seatbelt sign or pain or abrasions, basically some injuries that you would expect from the impact." Alcantar's medical records from July 16 did not indicate any facial injuries, powder from the airbag, or seatbelt burn. There was an abrasion on Alcantar's knee.
Scott Peterson was an investigator with the California Highway Patrol and testified for the prosecution as a rebuttal witness and as an expert in accident reconstruction. Based on the data downloaded from Alcantar's truck's airbag after the accident, the driver's seatbelt but not the passenger's had been buckled at the time of the accident. Peterson opined that data from the truck indicated the speed change of the truck was not significant enough to give abrasions from the seat belt. He concluded that, given the facts of the accident, he would not expect that the driver of the truck to have been injured.
Peterson also opined that the truck's cruise control was on at the time of the accident, the truck was going 53 miles an hour, and the driver of the truck did not use the brakes in the eight seconds prior to the collision. Peterson opined that the driver's failure to brake was "an indicator of intoxication."
Alcantar testified that he had never used the cruise control feature on his truck.
In closing argument, defense counsel did not contest any of the elements of the charged crimes other than the identity of the driver of the truck in the collision. Defense counsel stated, "the only element that you need to be concerned about is driving and whether the prosecution has sewed that up tight so that you can find proof beyond a reasonable doubt."
II. DISCUSSION
A. Motion to Suppress
1. Factual Background
The trial court conducted the hearing on the motion to suppress outside the presence of the jury on the first day of trial. The trial court heard testimony from two witnesses, a police officer and Alcantar. The parties stipulated that the audio and video recordings from the body-worn cameras of Officers Garcia and Donatoni and the transcripts and translations of the audio taken from those cameras "are accurate depictions of what occurred." The trial court reviewed the videos taken from the police body cameras and relied on facts drawn from them in his analysis. We have done the same.
On the first day of trial, Alcantar's trial counsel orally requested permission to file a motion to suppress. To explain his failure to file the motion earlier, trial counsel stated that he had "mis-analyzed the issue" as a Miranda (Miranda v. Arizona (1966) 384 U.S. 436) violation rather than "on the suppression based on the entry into the house." The prosecution objected to the timeliness of the motion pursuant to Penal Code section 1538.5 and requested the trial court deny the defense's request that it hear the motion. (See Pen. Code, § 1538.5, subd. (i).) The trial court allowed Alcantar to proceed with the motion to suppress. The Attorney General does not renew the prosecution's contention that the motion to suppress was untimely.
The exhibit admitted into evidence, exhibit 30, contained two videos, one from Officer Garcia's body-worn camera and one from Officer Donatoni's body-worn camera.
Officer Garcia did not testify at the hearing on the motion to suppress. We have not relied upon the video from Officer Garcia's body-worn camera because, based on the fact that Alcantar is no longer in the bedroom at the time of the events depicted in the video and Officer Garcia's statement in the recording that he was going back inside the house, we conclude that the events depicted on the video taken from Officer Garcia's body camera occurred after the officers' initial entry (which was the subject of the motion to suppress) and after they had removed Alcantar from the house. In addition, the audio from Officer Donatoni's body camera does not capture the initial stages of the officers' interaction with Alcantar's sister. We therefore rely solely on Officer Donatoni's testimony at the hearing on the motion and on the video footage from his body-worn camera, which we have viewed, for those facts.
At approximately 8:45 p.m., Officer Donatoni was dispatched to San Juan Grade Road regarding a collision with injuries. Donatoni saw a black Chevrolet Silverado in a drainage ditch on the east side of the road; the car was unoccupied. Donatoni saw the car's registration on the passenger seat of the car, and it listed the car's owner as Horacio Alcantar. The address listed on the registration was an address on Northridge Drive.
Officer Donatoni spoke with a witness, George Davis, who told Donatoni that he saw the truck go into the drainage ditch. According to Davis, the truck's driver was wearing a red sweatshirt and had tattoos on his head. Davis said that a "grayish Silverado" driven by a different man arrived "on scene" and picked up the driver of the truck who had been in the accident. Davis did not suggest that alcohol might have been a factor in the collision.
Officers Donatoni, Garcia, and Salinas went to the address on Northridge Drive listed on the truck's registration. It was "right down the street" from the location of the collision. They did not have an arrest or search warrant.
Justin Salinas was Officer Donatoni's "field training officer."
The officers arrived at the house around 9:05 p.m. They knocked on the door, and Hortencia Alcantar answered the door. They asked Hortencia if Horacio Alcantar was home. Hortencia said yes. Officer Donatoni did not know who lived in the house or who owned it.
Because she shares a last name with appellant, for clarity we refer to Hortencia Alcantar as "Hortencia."
The conversation with Hortencia was conducted in Spanish.
The officers asked Hortencia if she could go get him so they could speak with him. She said yes but returned and said he was asleep. The record contains no evidence that Hortencia mentioned where Alcantar was sleeping or referred to the location as a bedroom.
The officers asked Hortencia if she lived at the house, and she said yes. The officers asked Hortencia if they could enter the house, and she said yes. When Officer Garcia referred to Alcantar as Hortencia's son, she stated that he was her brother. The officers followed Hortencia through the common areas of the house, including the kitchen and a dining area.
The dining area had several openings off of it which were fully or partially covered by opaque curtains. Hortencia walked through a large opening at the far side of the dining room that was partially covered by an opaque curtain. Other than the curtain, which was already open when the officers approached, the area did not have a door between it and the common area. Hortencia entered the area without knocking or pausing, and the officers followed her into the room.
While the video does not indicate whether, prior to the officers' entry into the house, this curtain was open or closed, it does establish that the officers did not open the curtain to Alcantar's room.
An older woman was already present walking around the room when the officers entered. The room had a bed inside it. The bed had no sheets on it, but there was a person lying on the bed, tightly wrapped in an opaque blanket. It is not clear from the video whether the blanket was covering the entire head of the person on the bed. Upon entering the room, Officer Garcia walked over to the bed, lightly jostled the person on the bed, and pulled back the blanket. Hortencia did not say anything to the officers between the time they followed her into the house and when they began to speak to Alcantar.
The record does not contain any information about the identity of the other woman.
The reporter's transcript of the hearing on the motion to suppress states that Donatoni testified that "at first he was covered in a brown blanket. Once he removed the brown blanket I observed the tattoos on his head . . . ." However, Donatoni testified at trial that the officers removed the blanket, and the body camera makes clear that Officer Garcia removed the blanket.
Officer Donatoni testified at the hearing that, after the blanket had been removed, he observed that the man had tattoos on his head and was wearing a red sweatshirt, both of which were consistent with Davis's identification of the driver of the black truck that had been in the accident. Donatoni identified the man wrapped in the blanket as the defendant, Horacio Alcantar.
Once the officers removed the blanket, they woke Alcantar up, had Alcantar stand up, put handcuffs on him, and took him outside. Donatoni noticed that Alcantar had bloodshot, watery eyes and smelled of alcohol. Officer Garcia spoke to Alcantar in Spanish; Officer Donatoni did not communicate with Alcantar. Alcantar was "a little bit unsteady" as Donatoni was walking with him. At that point, they suspected he was the driver in the collision and "we thought alcohol could have been a factor in the collision."
Alcantar testified at the hearing on the motion to suppress and stated he had been drinking a lot that evening. He had been drinking beer at Casa de Pollo, where they served beers in buckets, and he had also been drinking mixed drinks. Alcantar felt a little dizzy, but he could walk.
The house where Alcantar was living at the time was rented by his sister's husband, and Alcantar and his sister lived there. Alcantar was asleep when the police arrived at the house. The police got him up from bed and put his hands behind him. The police asked him if he was Horacio Alcantar Aguilar, and he said that he was. The police handcuffed him in the bedroom and then took him outside and put him in a patrol car. The officers did not tell Alcantar that he was under arrest. The officers told him "there was an accident regarding [his] property."
When asked by his lawyer whether he was in a bedroom or in an open area, Alcantar stated "It's a bedroom with a door and everything." When asked by the prosecutor for clarification about the door, Alcantar asserted it was "[n]ormal, like a door . . . there's the kitchen and there's the bedroom and it has, um, a door and there's a curtain and everything, but there's a door." Alcantar did not remember if the door was open or closed before he went to sleep. He acknowledged that there was a curtain between his bedroom and the kitchen. Alcantar did not give the police permission to search his bedroom.
At the suppression hearing, the defense argued that the officers entered the bedroom without knocking and arrested Alcantar without probable cause, "[e]specially since the arrest happened inside the bedroom without anything further." Alcantar's written motion to suppress contended Alcantar was "taken into custody without reasonable suspicio[n]. The officers entered the home without consent, exigent circumstances or a warrant." With respect to Alcantar's sister's consent, Alcantar argued his sister "succumbed to [the] officers' insistence to enter the residence. Acquiescence to authority vitiates any form of apparent consent." Alcantar did not challenge the officers' removal of the blanket from him.
The district attorney argued at the hearing that Alcantar's sister consented to the officers' entry into the house, and she led the officers to Alcantar's bedroom. The district attorney's written opposition to the motion to suppress argued that a cotenant can give consent to an officer's entry, and the police can enter a house with the resident's consent. The opposition also contended the police had reasonable suspicion to detain Alcantar. The district attorney did not argue any exceptions to the warrant requirement other than consent.
After considering all of the evidence, the trial court denied Alcantar's motion to suppress. In its oral ruling, the trial court made the following factual and legal findings. "I did review the videos. The videos do clearly lay out that the officers come to the front door, they knock on the door . . . . And they speak to Hortencia Alcantar at the door and the officer asks in Spanish if they can come in. She first asks, 'What?' asking for clarification. He asks again if they can come in. And she says they can. She says yes. And they go in."
"She actually leads them through the house directly to the defendant, which is upon entry through the front door, they go left, they go through the kitchen, they go through another room, and then there is a curtain dividing that room from the room where Mr. Alcantar is. [¶] There is no door. There's no door at all. The curtain is not all the way closed. It's open by a couple feet. And the officers simply go through the curtain and into the bedroom where he's sleeping on a bed. Whether it's a bedroom or not doesn't need to be defined. There is a bed and he's on it."
Alcantar asserts "another officer, appellant, or his sister could have cracked open the curtain before the video was recorded." The Attorney General notes that the assertion that an officer opened the curtain is speculative. We agree.
"In the video you can see Hortencia Alcantar in the room first, so she led them directly in the room to exactly where the defendant was. [¶] So in terms of the warrantless entry into the house, this is in the Court's view third party consent. The consent is made by a person who has common authority over the premises. Clearly the police are allowed to rely on the consent of someone that they reasonably believe to possess that common authority. [¶] Furthermore, the police may assume that the person who answers their knock has the authority. That's People versus Ledesma, 39 Cal.4th 641."
The trial court then made the following legal conclusions: "I find that the scope of the consent includes conversation up to the possibility of arrest. Even still, the investigation was ongoing. The officers handcuffed the defendant for purposes of officer safety which was reasonable under the circumstances as described by Officer Donatoni who I find to be credible in all respects. [¶] It was by the kitchen. There were other individuals, other family members present in the household, adult family members. One was actually in the kitchen at one point. I believe there was one in the living room. [¶] He was then let outside in a non-aggressive way. He's advised that he's not under arrest, that he's merely being detained. The Court does not find this was an arrest and then he's taken outside and the investigation continues leading up to what is being argued as the fruit of . . . the poisonous tree."
"The Court does not see this as a fruit of the poisonous tree situation, however, because of the warrant exception of consent into the house leading to the defendant's arrest. [¶] The record should make clear that the Court does not credit the defendant's testimony for purposes of the suppression hearing given the amount of alcohol that he admits to having consumed, including the number of questions he could not specifically recall. And the direct contradiction between his testimony and the video with respect to the existence or non-existence of the door. It's very clear that it's a curtain and curtain only dividing those areas. [¶] So, accordingly, the motion to suppress is denied."
2. Legal Analysis
Alcantar appeals the trial court's ruling on his motion to suppress, arguing that he had an expectation of privacy in his bedroom, as shown by the curtain between the room and the kitchen. Alcantar does not dispute that his sister Hortencia had the authority to allow the officers inside the house, but he contends that his sister did not give consent to the officers to search his bedroom. He also maintains that his sister did not have the authority to consent to a search of his bedroom, because she only had authority over her room and the common areas of the house. He analogizes her authority over his bedroom to that of a roommate and distinguishes it from that of a spouse or parent.
Alcantar contends that, given the officers' lack of knowledge about the property or living arrangements at the house, the officers could not reasonably have concluded that his sister had the authority to authorize entry into his bedroom. He argues that the officers similarly could not have concluded that Alcantar had given his sister actual permission to allow the officers into his room because they knew Alcantar was asleep. Alcantar asserts that the officers were not entitled to rely on ambiguity about whether Alcantar's sister had consent to authorize entry into his bedroom but had a duty to investigate further before relying on her consent; their failure to conduct a basic investigation was unreasonable. Alcantar does not challenge any aspect of his detention other than it was illegal because the officers detained him in a place into which they had unlawfully entered.
The Attorney General concedes that, at the time of the search of Alcantar's bedroom, "the officers did not know who owned or rented the home." The Attorney General also agrees that adults sharing a residence but maintaining separate bedrooms do not have the apparent authority to consent to a search of another's bedroom. Nevertheless, the Attorney General asserts that Alcantar's sister leading the officers to his bedroom constitutes implied consent to search Alcantar's bedroom, and the officers were entitled to rely on that presumed consent. The Attorney General contends that Alcantar had a diminished expectation of privacy because there was no door on his bedroom, and it only had a partially-open curtain separating it from the rest of the house.
The Attorney General also relies on the exigent circumstances and "hot pursuit" exception to the warrant requirement. The police arrived at Alcantar's house approximately 20 minutes after they had been dispatched, and they needed to know whether they had to look elsewhere for a "potentially mobile" driver. Alcantar contends that the Attorney General has waived this argument by failing to present it to the trial court, and the entry into Alcantar's home was not justified by exigent circumstances.
a. General Principles
"The Fourth Amendment provides in relevant part that the 'right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.' The Amendment establishes a simple baseline, one that for much of our history formed the exclusive basis for its protections: When 'the Government obtains information by physically intruding' on persons, houses, papers, or effects, 'a "search" within the original meaning of the Fourth Amendment' has 'undoubtedly occurred.' " (Florida v. Jardines (2013) 569 U.S. 1, 5.) "[W]hen it comes to the Fourth Amendment, the home is first among equals. At the Amendment's 'very core' stands 'the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.' " (Id. at p. 6.)
While the Fourth Amendment generally requires that the police obtain a warrant for the search of a home, the ultimate touchstone of the Fourth Amendment is reasonableness, and "certain categories of permissible warrantless searches have long been recognized." (Fernandez v. California (2014) 571 U.S. 292, 298.) "Consent searches occupy one of these categories." (Ibid.) A warrantless consent search is reasonable "irrespective of the availability of a warrant." (Id. at p. 306.) The prosecution bears the burden of establishing an exception to the warrant requirement. (People v. Macabeo (2016) 1 Cal.5th 1206, 1213.)
When reviewing a trial court's ruling on a suppression motion, "an appellate court independently applies the law to the trial court's factual findings, determining de novo whether the findings support the trial court's ruling." (Gardner v. Appellate Division of Superior Court (2019) 6 Cal.5th 998, 1006.) "[W]e defer to the trial court's factual findings, express or implied, where supported by substantial evidence. [Citation.] And in determining whether, on the facts so found, the search was reasonable for purposes of the Fourth Amendment to the United States Constitution, we exercise our independent judgment." (People v. Simon (2016) 1 Cal.5th 98, 120.)
The police may search jointly occupied premises without a warrant if one of the occupants freely and voluntarily consents. (Fernandez, supra, 571 U.S. at p. 298; Schneckloth v. Bustamonte (1973) 412 U.S. 218, 222.) Alcantar does not challenge Hortencia's authority to let the officers into the house, but he disputes that she gave consent to the officers to search Alcantar's bedroom. He contends that, even if she did consent, she did not have the actual or apparent authority to do so.
If Hortencia did not give consent to the officers to enter Alcantar's room or if she did not have the actual or apparent authority to do so, then the officers' observations of Alcantar (including his identity, which matched the description of the driver, and his apparent intoxication) violated the Fourth Amendment. (See Lorenzana v. Superior Court (1973) 9 Cal.3d 626, 634 (Lorenzana).)
The trial court found that Hortencia had consented to the officers' entry into the room in which they found Alcantar. On appeal, we must uphold this factual finding if supported by substantial evidence. (People v. Martino (1985) 166 Cal.App.3d 777, 791 (Martino).)
Consent can be given nonverbally. (Martino, supra, 166 Cal.App.3d at p. 791.) The officers asked Hortencia if they could come in, and she said yes. The officer speaking with Hortencia spoke in a calm and nonthreatening tone. The officers did not display any weapons or issue any commands to her. Hortencia's demeanor was also calm. The video footage of the encounter makes clear that Hortencia was leading the officers to the room, and she stepped aside as they entered without making any gestures or statements indicating that they should not enter.
We therefore conclude substantial evidence supports the trial court's determination that Hortencia voluntarily consented to the officers' entry into Alcantar's room. We next examine whether she had actual authority to do so.
b. Actual Authority
The prosecution may establish an exception to the warrant requirement based upon a search conducted pursuant to consent given by a person with "common authority" over the premises to be searched. (United States v. Matlock (1974) 415 U.S. 164, 171.) "Common authority . . . rests . . . on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched." (Id. at p. 171, fn. 7; see also People v. Superior Court (Walker) (2006) 143 Cal.App.4th 1183, 1199 (Walker) [applying this definition].) The prosecution bears the burden in the trial court of establishing the third party's common authority over the area searched. (People v. Carreon (2016) 248 Cal.App.4th 866, 876 (Carreon).)
Certain familial relationships generally suffice to establish common authority over all areas in a home. For example, spouses generally have the authority to consent to a search of the residence. (See, e.g., People v. Ingle (1960) 53 Cal.2d 407, 415-416.) Parents have the authority to consent to a search of the room of a minor child (In re D.C. (2010) 188 Cal.App.4th 978, 981) and, in some cases, to the search of the bedroom of an adult child (People v. Daniels (1971) 16 Cal.App.3d 36, 42; People v. Oldham (2000) 81 Cal.App.4th 1, 10 (Oldham)). However, absent evidence that they share a bedroom, adult siblings living together ordinarily do not have actual authority to consent to a search of each other's bedroom. (See Beach v. Superior Court (1970) 11 Cal.App.3d 1032, 10351036.) The same rule applies to adult roommates. (United States v. Aghedo (7th Cir. 1998) 159 F.3d 308, 310.) Similarly, the general rule is that landlords do not have the authority to consent to a search of tenants' bedrooms. (People v. Escudero (1979) 23 Cal.3d 800, 807; Walker, supra, 143 Cal.App.4th at p. 1200.)
At the suppression hearing here, the prosecution presented no evidence that Hortencia in fact had joint access or control to the room in which Alcantar was sleeping. For example, the prosecution did not elicit evidence that Hortencia owned or rented the house, that Alcantar did not pay rent, or that the room in which Alcantar was found was in fact a common area of the house. (Cf. Oldham, supra, 81 Cal.App.4th at p. 10 [finding a father had actual authority to consent to a search of his adult son's bedroom where the police knew prior to entry into the room that the father was the owner of the house and his son lived there without paying rent].) In addition, there was clear evidence that Alcantar was located in the room on a bed; in his testimony Alcantar referred to the room as his bedroom, and there was a curtain dividing the room from the dining room. Given the officers' lack of information about the ownership or living arrangements in the house, and in light of the evidence that Alcantar may have been using the room as a bedroom, there was not substantial evidence presented that Hortencia had actual authority to consent to the officers' entry into Alcantar's room.
c. Reasonable Reliance on Apparent Authority
The prosecution may also establish the legality of a search based on consent "even to entries and searches with the permission of a co-occupant whom the police reasonably, but erroneously, believe to possess shared authority as an occupant" (Georgia v. Randolph (2006) 547 U.S. 103, 109) because "what is generally demanded of the many factual determinations that must regularly be made by agents of the government . . . is not that they always be correct, but that they always be reasonable." (Illinois v. Rodriguez (1990) 497 U.S. 177, 185-186 (Rodriguez).)
Under this standard, "determination of consent to enter must 'be judged against an objective standard: would the facts available to the officer at the moment . . . "warrant a man of reasonable caution in the belief" ' that the consenting party had authority over the premises?" (Rodriguez, supra, 497 U.S. at p. 188.) What is objectively reasonable is a question of law, not fact. (Carreon, supra, 248 Cal.App.4th at p. 876.) We conclude that, under the circumstances of this case, the officers could reasonably and objectively have believed that Hortencia had authority to consent to their entry into the room in which Alcantar was located.
Hortencia opened the door of the house, leading the officers to reasonably believe she had the authority to consent to their entry into the house. (People v. Ledesma (2006) 39 Cal.4th 641, 703-704.) Hortencia then led them through a number of common areas of the house without hesitation, suggesting her authority over the spaces. In addition, the room in which Alcantar was located was not obviously a bedroom. While Hortencia had told the officers that Alcantar was sleeping, they could have inferred from the layout of the house that she was leading them to an area over which she had common authority.
In fact, while the room contained a bed, the officers could reasonably have inferred that the room formed part of the common areas of the house. It was directly behind the common areas of the kitchen and dining room, and they did not pass through any other bedrooms to get there. The dining room contained a number of openings fully or partially covered by curtains, none of which obviously led to a bedroom. The room did not have a solid door; instead it was separated from the dining room only by a partially open curtain. When the officers looked in the room, another fully-clothed adult (whose identity was not discussed at the hearing) was already inside the room walking around. Hortencia entered the room without hesitation and stepped aside, from which the officers could reasonably infer her authority over and consent for them to enter the room. These facts support a reasonable, objective conclusion that Hortencia had apparent authority over the room in which Alcantar was located.
Relying on decisions from a number of federal and state courts of appeal, Alcantar argues that, in circumstances where authority is ambiguous, the police have a duty to make inquiries into the circumstances of occupancy before relying on a third person's apparent authority. These courts have generally held that "[l]aw enforcement officers cannot use the apparent authority doctrine to justify a warrantless search when they fail to make a sufficient inquiry into the consenting party's 'use, access, or control over' the area to be searched." (Lastine v. State (Nev. App. 2018) 429 P.3d 942, 950.) "When faced with a situation . . . in which the suspect in a crime is located within a private area of a home such as a bedroom—not in a common area—and law enforcement officers choose to enter the private area without the consent of the person occupying the private area, but with the consent of a third party, they need to ensure the third party has the authority to allow the intrusion." (Ibid.; see also U.S. v. Cos (10th Cir. 2007) 498 F.3d 1115, 1128 [" '[W]here an officer is presented with ambiguous facts related to authority, he or she has a duty to investigate further before relying on the consent.' "]; U.S. v. Arreguin (9th Cir. 2013) 735 F.3d 1168, 1176 ["[T]he 'police are not allowed to proceed on the theory that ignorance is bliss' . . . They knew far too little to hold an objectively reasonable belief that [the third party] could consent to a search of those areas."].)
These decisions constitute persuasive but not binding authority. (Elliot v. Albright (1989) 209 Cal.App.3d 1028, 1034; Lebrilla v. Farmers Group, Inc. (2004) 119 Cal.App.4th 1070, 1077.) We agree that, under different facts, the officers may have been required to ask Hortencia questions before they could reasonably rely on her apparent authority over the room. For example, if the room in which Alcantar was located had appeared to be a bedroom, either because it was in the area of the house with other bedrooms or if it had a closed door, or a door with a lock, the police may have been required to conduct further investigation before entering. Similarly, if Hortencia and the unidentified other adult were not already standing inside the room when the officers entered, or if Hortencia had hesitated before entering the room, or if the curtain had been fully closed, then perhaps we would have deemed unreasonable their reliance on her apparent authority to provide consent to search. However, given the specific facts here, the officers were not obligated to conduct further investigation before entering the room. We conclude their reliance on Hortencia's apparent authority to consent to a search of the room was reasonable, and therefore their entry into it did not violate Alcantar's rights under the Fourth Amendment.
Given this conclusion, we do not reach the Attorney General's contention that the officers' search fell within the exigent circumstances or hot pursuit exceptions to the warrant requirement.
c. The Officer's Removal of the Blanket from Alcantar
Alcantar did not argue in the trial court that the officers' removal of the blanket that was covering him violated his rights under the Fourth Amendment, and neither party addressed this issue in their initial briefing in this court. After reviewing the evidence, we requested briefing from the parties on whether removal of the blanket constituted a search and, if so, whether it fell within any exception to the warrant requirement. In response, Alcantar stated that removal of the blanket was an illegal search that was not subject to any exception. The Attorney General contended inter alia that Alcantar had forfeited this issue by failing to raise it in the trial court. Alcantar asserted that, because arguments related to the blanket are "cognizable" refinements of issues presented in the trial court (People v. Hinds (1984) 154 Cal.App.3d 222, 236) and the facts are "basically undisputed" (People v. Downing (1995) 33 Cal.App.4th 1641, 1650) this court has the authority to reach this issue.
While there is a strong argument that removal of the blanket constituted a search (see Arizona v. Hicks (1987) 480 U.S. 321, 324-325), we do not agree with Alcantar that the relevant facts are undisputed. Having carefully reviewed the body-worn camera footage admitted into evidence, we find that it is not clear whether the blanket covered Alcantar completely or whether the distinctive tattoos on his head were visible to the officer before he removed the blanket. If the tattoos were visible, then the "plain view" exception to the warrant requirement might apply to those observations. (See People v. Caro (2019) 7 Cal.5th 463, 489.)
However, no party raised the potential relevance to the Fourth Amendment analysis of the officer's removal of the blanket. Consequently, no one clarified this aspect of the evidence, and the trial court made no findings about it. In addition, neither the parties nor the trial court addressed whether, if the officers in fact violated Alcantar's Fourth Amendment rights by removing the blanket from him, suppression of the evidence was required. (See People v. Boyer (2006) 38 Cal.4th 412, 448 ["Evidence need not be suppressed as 'fruit of the poisonous tree,' though actually procured as the result of a Fourth Amendment violation against the defendant, if it inevitably would have been obtained by lawful means in any event. [Citation.] Moreover, suppression is not necessarily required even if the evidence would not have come to light but for an infringement of the defendant's Fourth Amendment rights."].)
Because these issues were not raised in the trial court, they were not subject to factfinding or legal development. Under those circumstances, it is inappropriate for us to address them for the first time here, and we conclude that Alcantar has forfeited any challenge to the officers' removal of the blanket. (See Lorenzana, supra, 9 Cal.3d at p. 640; People v. Hawkins (2012) 211 Cal.App.4th 194, 203.)
B. Admission of the Great Bodily Injury Enhancement
1. Factual Background
On the first day of trial and prior to jury selection, the trial court addressed with Alcantar's trial counsel the great bodily injury enhancements. The trial court stated, "I believe based on our discussions last time, Mr. Hernandez, given that the defense in the case is identification, you wanted to enter into admissions, or you and your client want to enter into admissions as to the great bodily injury enhancement; is that correct?" Defense counsel responded, "That is correct. I've discussed it with him and explained what we're doing." The trial court engaged in the following colloquy with Alcantar, defense counsel Hernandez, and the prosecutor, Ms. Sillman:
"The Court: So, Mr. Alcantar, on this charging document it's alleged as an enhancement to Count 1 that in the commission of that offense you personally inflicted great bodily injury upon Daniel Galindo, who is not an accomplice, and that injury caused him to become comatose due to brain injury and to suffer paralysis. [¶] That same enhancement is also included as to Count 2. [¶] Your attorney indicates you want to enter an admission to both these enhancements; is that correct?
"The Defendant: Yes.
"The Court: And do you understand that with respect to those enhancements if you enter into an admission you're giving up constitutional rights which include the right to a speedy or public trial by court or jury on those enhancements; the right to confront witnesses; the right to present evidence and to compel witnesses to testify on your behalf; and the right to remain silent. [¶] Do you understand that?
"Mr. Hernandez: Your Honor, but only on those—that—those issues.
"The Court: Only on those enhancements.
"The Defendant: Yes.
"The Court: And do you understand if the jury finds you guilty of the underlying offense to which the enhancements are attached, then the enhancement adds an additional term of prison for five years. Do you understand that?
"The Defendant: Yes.
"The Court: And are you also waiving appeal with respect to the admission on those enhancements?
"The Defendant: Yes.
"The Court: Ms. Sillman, was there any other advisements that you thought were necessary?
"Ms. Sillman: No, your Honor. Thank you.
"The Court: The Court finds a knowing, voluntary and intelligent waiver as to both of those enhancements. So the enhancements 12022.7(b) are admitted with respect to Counts 1 and 2."
Neither the prosecutor nor defense counsel asserted that the trial court had failed to take Alcantar's admission to the enhancements.
At sentencing, the trial court asked the prosecution whether it had any additions or corrections to the probation report. The prosecutor stated, "[i]t appears that the 12022.7(b) that had been admitted prior to the—going to the jury was left out, so on page 1, under convicted offense, if we can add at the very end of that paragraph as to Count 1 and to Count 2 a special allegation of 12022.7(b) was stipulated or admitted to." The trial court replied, "I had written that down as earlier admitted to pre-trial."
Neither defense counsel nor Alcantar objected to the prosecutor's characterization that Alcantar had admitted the allegations prior to trial. Nor did Alcantar object to the trial court's sentence, which included consecutive terms of five years for each of the Penal Code section 12022.7(b) enhancements.
2. Legal Analysis
Alcantar contends that the trial court's failure to ask him whether he admitted the allegations means that he did not actually admit them. He argues this court must reverse the trial court's finding that Alcantar admitted the enhancements and remand for further proceedings. Alcantar relies on the authority of Penal Code section 1018, which states "every plea shall be entered or withdrawn by the defendant himself or herself in open court." Alcantar analogizes the colloquy here to that in People v. Bryant (1992) 10 Cal.App.4th 1584 (Bryant), a case in which the court found a defendant's admission to an allegation inadequate. (Id. at p. 1595.) The Attorney General states that Alcantar properly admitted the enhancements.
Turning first to Bryant, the principal case on which Alcantar relies, we note that the plea colloquy in that case was not a model of clarity. The charges in Bryant were complex, involving seven counts and a variety of enhancements (Bryant, supra, 10 Cal.App.4th at pp. 1589-1590), but the trial court stated it would not read the " 'entire charges' " but only their titles to the defendant. (Id. at p. 1593.) The trial court then failed to mention a number of enhancements when taking the defendant's plea.
For example, count 2 charged "rape by foreign object of [the victim] ([Pen. Code,] § 289, subd. (a)) with use of a deadly weapon in commission of the offense ([Pen. Code,] § 12022.3, subd. (a)) and for the purpose of which the victim was kidnapped ([Pen. Code,] § 667.8, subd. (a))." (Bryant, supra, 10 Cal.App.4th at p. 1589.) The trial court's colloquy for that count was the following " 'And in Count II, it's alleged on January 24th, 1991, that you committed these [sic] felony crime of rape by a foreign objects [sic], serious felony, against [the victim] and, further, that you utilized your finger and, further, that you used a deadly weapon, to wit, a knife, and that it was used for the purpose of committing the above sexual offense. [¶] What is your plea to that charge?' " (Id. at pp. 1593-1594.) The trial court's colloquy omitted any reference to the Penal Code section 667.8, subdivision (a) enhancement. When the prosecutor brought to the attention of the trial court that it had failed to mention the section 667.8 allegation, the trial court erroneously asserted " 'I read that, counsel.' " (Bryant, at p. 1594.)
On appeal the Attorney General in Bryant conceded that the defendant had not admitted the Penal Code section 667.8 enhancement. (Bryant, supra, 10 Cal.App.4th at p. 1594.) Given this concession and the trial court's failure to mention the allegation, the Court of Appeal concluded that, "Although here the [Penal Code] section 667.8, subdivision (a) allegation was pleaded in the information, it was not proven because the trial court failed to obtain an adequate admission. Accordingly, the enhanced term could not be imposed under this statute and the finding that Bryant admitted the allegation cannot stand." (Id. at p. 1595.)
Here, the colloquy between the trial court and Alcantar with respect to the enhancements that he had inflicted bodily injury causing paralysis was markedly different from that in Bryant. The trial court specifically described the allegations, reviewed the rights Alcantar was giving up if he admitted them, discussed their penalty implications, and confirmed that Alcantar had spoken with his lawyer about them.
The trial court also stated, "Your attorney indicates you want to enter an admission to both these enhancements; is that correct?" Alcantar answered, "yes." Although the trial court failed to ask directly whether Alcantar admitted the allegations, the trial court did state that it found "a knowing, voluntary and intelligent waiver as to both of those enhancements. So the enhancements 12022.7(b) are admitted with respect to Counts 1 and 2." Neither Alcantar nor his counsel objected to the trial court's finding or to its legal conclusion that Alcantar had admitted the enhancements.
"Notwithstanding errors in the articulation of rights and waiver, a guilty plea will be upheld 'if the record affirmatively shows that it is voluntary and intelligent under the totality of the circumstances.' " (People v. Murillo (1995) 39 Cal.App.4th 1298, 1303.) We reject Alcantar's contention that, under Penal Code section 1018 and the reasoning of Bryant, supra, 10 Cal.App.4th at page 1594, Alcantar did not admit the enhancements. That Alcantar did not actually use the words "I admit the allegations"—or words to that effect—does not preclude a finding that he in fact admitted them. (See People v. Niendorf (1961) 197 Cal.App.2d 594, 597 ["It is obvious that although defendant did not himself use the words 'I plead guilty,' he actually did so plead."].)
In light of this conclusion, we do not address the Attorney General's suggestion that Alcantar waived his right on appeal to challenge the enhancements.
Other courts have found that a defendant's own responses to the court's colloquy, even if the defendant does not actually personally enter a plea himself, satisfy Penal Code section 1018's requirement that the defendant personally enter a plea. (See, e.g., People v. Weaver (2001) 26 Cal.4th 876, 964; In re Martinez (1959) 52 Cal.2d 808, 815 ["The purpose of the requirement that a plea be entered by defendant personally is to ensure that the plea is his own. If it is, the purpose of that requirement is accomplished."].)
Under the totality of the circumstances, including the trial court's detailed explanation of the enhancements, their penal consequences, the rights Alcantar was waiving and particularly in light of Alcantar's personal statement that he wanted to admit the enhancements and the absence of any contemporaneous objections to the trial court's findings, we conclude that Alcantar admitted the enhancements.
C. Sentencing Issues
1. Application of Penal Code Section 654
a. Factual Background
The trial court imposed a sentence of five years of imprisonment on the Penal Code section 12022.7(b) enhancement for causing great bodily injury in connection with count 2, driving with a blood alcohol level of .08 percent or more and causing injury (§ 23153, subd. (b)). When sentencing Alcantar on count 3, the trial court stated, "hit and run with injury, this is related to the aspect of injury, but the gravamen of this offense is leaving the scene after causing an injury. The legislature's purpose was to impose a greater punishment for leaving an injured person or persons at the scene. So the punishment is not for causing the injury. It's for leaving someone there who is injured. And that's something you did. [¶] Therefore, the Court sees the consecutive one-third the middle term is warranted. That's an additional year." The trial court did not stay the punishment on count 3 pursuant to Penal Code section 654.
b. Legal Analysis
Alcantar argues that the trial court violated Penal Code section 654 when it imposed punishment on both the enhancement in count 2 that Alcantar had caused great bodily injury resulting in paralysis (Pen. Code, § 12022.7(b)) and on his conviction for hit and run resulting in permanent, serious injury in count 3 (§ 20001(b)(2)). Relying primarily on People v. Harbert (2009) 170 Cal.App.4th 42, 59 (Harbert), Alcantar contends that he has been punished twice for "the same act resulting in injury." Alcantar focuses his argument on the "same act" portion of Penal Code section 654 and does not contend that these statutes involved a course of conduct encompassing several acts pursued with a single objective. Alcantar states that the trial court should have stayed the sentence for count 3, resulting in an aggregate sentence of eight years. The Attorney General counters that Penal Code section 654 does not bar punishment for both the drunken driving, the count to which the enhancement attached, and for "leaving the scene of an injury accident."
Although the Attorney General notes that Alcantar's crimes had two victims, the enhancement and count 3 both related to the injuries to Galindo, the only victim for which there was substantial evidence of paralysis and permanent injury.
As the facts here are undisputed, the application of Penal Code section 654 is a question of law subject to de novo review. (People v. Corpening (2016) 2 Cal.5th 307, 312 (Corpening).) In Harbert, the jury convicted the defendant "of violating section 20001, and while doing so personally inflicting great bodily harm (Pen. Code, § 12022.7, subd. (a)). The trial court sentenced defendant to state prison for the middle term of three years for the violation of section 20001, with an identical term for the great bodily injury enhancement, the latter stayed pursuant to Penal Code section 654." (Harbert, supra, 170 Cal.App.4th at p. 45.)
The defendant in Harbert contended that the Penal Code section 12022.7(a) enhancement could not be imposed in connection with a conviction for hit and run with injury in light of Penal Code section 12022.7, subdivision (g), which provides that the enhancement " 'shall not apply if infliction of great bodily injury is an element of the offense.' " (Harbert, supra, 170 Cal.App.4th at p. 59.) The court rejected the defendant's argument. The court determined that the enhancement could be imposed because " '[t]he gravamen of a section 20001 offense . . . is not the initial injury of the victim, but leaving the scene without presenting identification or rendering aid,' " and "the personal infliction of great bodily injury is not an element of section 20001." (Ibid.)
Discussing the two statutes, the court stated "[t]he respective spheres of the two statutes operation may overlap, yet they are far from coextensive. When they do overlap, as occurred here, Penal Code section 654 becomes operative. Conviction for both is proper, and imposition of separate sentences for each is proper. But actual punishment, i.e., service of those separate sentences, is not." (Harbert, supra, 170 Cal.App.4th at p. 59.)
We do not find Harbert dispositive here. As the defendant there did not challenge the application of Penal Code section 654 but instead argued the enhancement did not apply as a matter of law, the court's discussion of Penal Code section 654 was dicta. In any event, the suggestion in Harbert that Penal Code section 654 applies when the offenses "overlap" is not an accurate statement of the law in light of subsequent decisions by the California Supreme Court.
Penal Code section 654, subdivision (a) provides "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." Application of this statute "requires a two-step inquiry, because the statutory reference to an 'act or omission' may include not only a discrete physical act but also a course of conduct encompassing several acts pursued with a single objective." (Corpening, supra, 2 Cal.5th at p. 311.) Only if the case involves more than one act does a court consider whether the case involves a course of conduct. (Ibid.) "At step one, courts examine the facts of the case to determine whether multiple convictions are based upon a single physical act." (Id. at p. 312.)
"Whether a defendant will be found to have committed a single physical act for purposes of [Penal Code] section 654 depends on whether some action the defendant is charged with having taken separately completes the actus reus for each of the relevant criminal offenses." (Corpening, supra, 2 Cal.5th at p. 313.) Examples of crimes involving the "same act" include carrying a concealed firearm and carrying an unregistered firearm in public (namely, carrying the same firearm); driving while intoxicated and driving with an invalid license (driving); and robbery and carjacking where both crimes were accomplished by the same act of forcefully taking a van. (Id. at pp. 312-313, 315.)
The appropriate legal test here, however, is different because Alcantar challenges the application of Penal Code section 654—not with respect to two separate counts as was the case in Corpening or with an enhancement and the count to which it was attached as in Harbert—but instead to the imposition of punishment on an enhancement attached to one count (count 2) and the imposition of punishment on a different count (count 3).
In Ahmed, the California Supreme Court discussed the application of two enhancements attached to a single count. (People v. Ahmed (2011) 53 Cal.4th 156, 160 (Ahmed).) Although the court in Ahmed did not ultimately rely on Penal Code section 654 in its determination that imposition of both enhancements was permissible, it did shed light on how to apply Penal Code section 654 to sentencing enhancements. "Provisions describing substantive crimes, such as the assault with a firearm of this case, generally define criminal acts. But enhancement provisions do not define criminal acts; rather, they increase the punishment for those acts. They focus on aspects of the criminal act that are not always present and that warrant additional punishment." (Ahmed, at p. 163.) "[W]hen applied to multiple enhancements for a single crime, section 654 bars multiple punishment for the same aspect of a criminal act." (Id. at p. 164.) The court noted that, for Penal Code section 12022.7, the "aspect" of that act is "infliction of great bodily injury." (Ahmed, at p. 164.)
The court in Ahmed relied on the text of Penal Code section 1170.1 and on its legislative history, rather than on Penal Code section 654, to determine the Legislature "intended to permit the sentencing court to impose both one weapon enhancement and one great-bodily-injury enhancement for all crimes." (Ahmed, supra, 53 Cal.4th at p. 168.) We note that the statutory text of Penal Code section 12022.7 does not address whether the enhancement may be imposed in connection with a section 20001 conviction involving an accident that causes permanent injury to another person. In the absence of a specific provision in Penal Code section 12022.7 that answers whether multiple punishments may be imposed, we apply Penal Code section 654. (See Ahmed, at p. 163.)
In light of Ahmed, "[s]ection 654 applies when the aspect of a sentence enhancement punishes the exact criminal conduct for which a defendant has been separately convicted and sentenced." (People v. Buchanan (2016) 248 Cal.App.4th 603, 616.) The statute extends to enhancements and crimes charged in separate counts. (See People v. Calles (2012) 209 Cal.App.4th 1200, 1221 [applying Penal Code section 654 under those circumstances].) The California Supreme Court has stated that, when analyzing the relevant act for Penal Code section 654 based on a "same acts" analysis, the focus should be on the act that "completes the actus reus" for the relevant criminal offense. (See Corpening, supra, 2 Cal.5th at p. 313.)
As described above, Alcantar contends that Penal Code section 654 bars the imposition of separate punishment of the enhancement for personally inflicting injury on another, causing the person to suffer paralysis (Pen. Code, § 12022.7(b)) and on a hit and run resulting in permanent, serious injury (§ 20001(b)(2)). We agree with Alcantar that, in order to have been convicted of the hit and run offense, he must have first been involved in an accident causing permanent, serious injury to another. But Alcantar did not complete the crime of hit and run until he willfully failed to perform duties after the accident. (See CALCRIM No. 2140.) The aspect of the criminal act punished by Penal Code section 12022.7(b) (namely, personal infliction of serious bodily injury) did not therefore punish the "exact criminal conduct" (People v. Buchanan, supra, 248 Cal.App.4th at p. 616) of hit and run causing injury (§ 20001), which punishes the failure to perform legal duties after an accident. Therefore, Penal Code section 654 did not preclude the imposition of separate punishment under both statutes. The trial court did not commit an error of law when it imposed and did not stay the punishments for both the enhancement in count 2 and for count 3.
2. Denial of Probation
a. Factual Background
The prosecutor recommended the trial court impose the maximum sentence of 10 years. The prosecutor stated, "I'm asking for the maximum time because I had hoped above all that I would read this probation report and see some type of remorse, some shred of, 'I'm sorry for what I did' . . . And we don't see that. We don't see one shred of that from Mr. Alcantar. It is completely self-serving, it is selfish, and it is beyond me."
Defense counsel noted that Alcantar had a minimal criminal record and had done well on pretrial release during the pendency of the case. Counsel stated, "I think that he would do excellent on probation. I'm asking the Court to give him probation because of his lack of record." In the alternative, defense counsel asked for a term of three years in prison.
The trial court declined to impose probation. It stated "So the Court did hear the entire trial and the Court got a good sense of the case and one thing that's true about this case and many other cases like it [is] that it was completely preventable. It takes a little planning, takes some self-control, but it was completely preventable. [¶] As a result Mr. Galindo has had everything taken away from him, the life he had and the life he hoped for is gone. And the lives of the loved ones that he has have been forever changed. It's just so completely sad to have this happen and have this happen by you, Mr. Alcantar. [¶] I hope you have seen what you have done here. Many people attest to your good nature and good character. But all of that, each and every letter, and even the testimony of your own character witnesses, are completely undermined by your refusal to even recognize that it was you in the car. I can't believe that you still cling to that notion."
The trial court stated, "The evidence was overwhelming. You were seen at the bar, you were seen getting into your car, you were seen driving head on into Mr. Galindo's car, you were seen in the car, and you were seen getting out of the car and leaving the scene. All of this by multiple witnesses. [¶] On top of that you have a certain look. You've got tattoos that everybody talked about. Again, by multiple witnesses. It's simply befuddling to me to think that you can claim it wasn't you. That in and of itself is a sign of somebody who does not deserve probation. [¶] I do hope that one day you'll see and accept that you are solely responsible for this. [¶] So the Court has considered the factors in aggravation versus mitigation. I do find that you're not a suitable candidate for probation so probation is denied." Defense counsel did not object to the trial court's statement or sentence.
b. Legal Analysis
Alcantar argues that, because the trial court improperly denied probation based solely on Alcantar's lack of remorse, defense counsel was constitutionally ineffective for failing to object to the trial court's denial of probation. Specifically, Alcantar states that competent counsel had a duty to "promote the 'proper application' of the sentencing rules," and the trial court would have imposed a more favorable sentence in the absence of error.
To prove that his defense counsel was constitutionally ineffective, Alcantar must establish both that counsel's performance was deficient and that he suffered prejudice as a result of counsel's error. (Strickland v. Washington (1984) 466 U.S. 668, 687.) Alcantar bears the burden of demonstrating by a preponderance of the evidence that his counsel's performance fell below an objective standard of reasonableness. (In re Thomas (2006) 37 Cal.4th 1249, 1257.) To satisfy the prejudice element of his claim, Alcantar must show "that there is a reasonable probability that, but for counsel's unprofessional errors, the result would have been more favorable to [him], i.e., a probability sufficient to undermine confidence in the outcome." (In re Ross (1995) 10 Cal.4th 184, 201.) We can reject Alcantar's claim if he fails to establish either element of the Strickland standard. (See Strickland, supra, 466 U.S. at p. 687.) We need not decide whether defense counsel's failure to object to the trial court's references to Alcantar's lack of remorse amounts to deficient performance because Alcantar cannot establish that he was prejudiced by defense counsel's inaction.
Reading the entirety of the trial court's explanation for its decision to deny probation, we conclude the trial court did not base its decision to deny probation solely on Alcantar's testimony that he was not the driver involved in the accident and his refusal to acknowledge remorse during the sentencing hearing. The trial court also cited the senselessness of the crime and the lasting effects of the crime on Galindo and on his family. These considerations were permissible reasons to deny probation. (People v. Ramirez (2006) 143 Cal.App.4th 1512, 1530-1531; People v. Mehserle (2012) 206 Cal.App.4th 1125, 1158.)
Therefore, we conclude that Alcantar has not carried his burden of showing that, had his counsel objected to the trial court's statements about Alcantar's lack of remorse, there is a reasonable probability that the trial court would not have imposed a prison sentence on Alcantar. Although Alcantar had minimal criminal history, the jury convicted him of three crimes based on (in the words of the trial court) "overwhelming" evidence and because of which "the life [Daniel Galindo] had and the life he hoped for is gone. And the lives of the loved ones that he has have been forever changed." We see no prejudice here.
For these reasons, Alcantar has not demonstrated any deprivation of his right to the effective assistance of counsel based on his trial counsel's failure to object to the trial court's stated reasons for denying him probation.
3. Correction to the Abstract of Judgment
Although neither party has so requested, we order that the abstract of judgment be corrected. We "may correct clerical errors at any time" and have jurisdiction to order "correction of abstracts of judgment that [do] not accurately reflect the oral judgments of sentencing courts." (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
The trial court imposed five-year prison terms on counts 1 and 2 for the enhancements pursuant to Penal Code section 12022.7(b). However, the abstract of judgment incorrectly lists these enhancements as falling under "VC [Vehicle Code]" section 12022.7(b). We therefore order the trial court to correct the abstract of judgment to list the enhancements for counts 1 and 2 under Penal Code section 12022.7, subdivision (b).
III. DISPOSITION
The judgment is affirmed. The trial court shall prepare an amended abstract of judgment to list the enhancements for counts 1 and 2 under Penal Code section 12022.7, subdivision (b) and shall forward a certified copy to the California Department of Corrections and Rehabilitation.
/s/_________
DANNER, J. WE CONCUR: /s/_________
GREENWOOD, P.J. /s/_________
GROVER, J.