Opinion
F083245
12-28-2022
THE PEOPLE, Plaintiff and Respondent, v. EMMANUEL GARCIA, Defendant and Appellant.
Kaiya R. Pirolo, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Nikta (Nikki) Allami, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. BF184915A Gregory A. Pulskamp, Judge.
Kaiya R. Pirolo, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Nikta (Nikki) Allami, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT [*]
Defendant Emmanuel Garcia was found guilty by a jury on seven criminal counts and was sentenced to four years eight months in prison. His sentence included upper term sentences on two counts, one of which was stayed pursuant to Penal Code section 654. On appeal, defendant contends that (1) his sentence must be vacated, and the case remanded for resentencing in light of Senate Bill No. 567's (2021-2022 Reg. Sess.) (Senate Bill 567) amendments to section 1170, subdivision (b) and (2) the trial court erred in failing to stay, pursuant to section 654, subdivision (a), the resisting a police officer conviction. The People disagree on both accounts. We affirm.
All statutory references are to the Penal Code unless otherwise indicated.
PROCEDURAL SUMMARY
On May 7, 2021, the Kern County District Attorney filed an information charging defendant with buying or receiving a stolen vehicle (§ 496d, subd. (a); count 1), driving in willful or wanton disregard for safety of persons or property while fleeing a pursuing peace officer (Veh. Code, § 2800.2; count 2), evading a peace officer by driving on a highway in the opposite direction of traffic (Veh. Code, § 2800.4; count 3), misdemeanor driving on a suspended or revoked license (Veh. Code, § 14601.1, subd. (a); count 4), misdemeanor failing to notify a property owner after a collision resulting in damage (Veh. Code, § 20002, subd. (a); count 5), misdemeanor resisting or obstructing a police officer (§ 148, subd. (a)(1); count 6), and misdemeanor possession of a device used for unlawfully injecting or smoking a controlled substance (Health &Saf. Code, § 11364; count 7). As to count 1, the information further alleged that defendant had suffered a prior vehicle theft conviction (§ 666.5, subd. (a)).
An eighth count was alleged, but it was dismissed prior to trial.
On August 2, 2021, the jury found defendant guilty on all counts. On the same date, at a bifurcated proceeding outside the presence of the jury, the trial court found the prior conviction allegation as to count 1 to be true in reliance on a certified copy of defendant's RAP sheet.
On August 27, 2021, the trial court sentenced defendant to an aggregate term of four years eight months as follows: on count 1, four years (the upper term); on count 2, eight months (one-third the middle term), consecutive to the term on count 1; on count 3, three years (the upper term), stayed pursuant to section 654 "until the successful completion of the sentence imposed above in [c]ounts 1 and 2 . . ."; on counts 4, 5, and 7, 180 days in jail, concurrent with the sentence on count 1; and on count 6, one year in jail, concurrent with the sentence on count 1.
On the same date, defendant filed a notice of appeal.
FACTUAL SUMMARY
On March 27, 2021, R.V. drove himself and his wife to a shopping center in Kern County in his black diesel pickup truck. He estimated that the truck was worth $20,000. When he exited a grocery store at the shopping center, he saw that his truck was gone but his keys were still in his pocket. The truck was registered in R.V.'s name alone and neither he nor his wife had given anyone permission to take it. R.V. did not know defendant and had not given him permission to take the truck. R.V. reported the truck stolen.
R.V.'s truck was eventually recovered, and an officer called him one morning at 4:00 a.m. to inform him that it had been recovered.
In March and April 2021, Joshua Patty was a Bakersfield Police Officer assigned to the patrol division. One of his duties in that role was making vehicle stops. On March 31, 2021, from 9:00 p.m. to April 1, 2021, at 7:00 a.m., Patty and his partner, Bakersfield Police Officer Ryan Jordan, were on patrol in a marked patrol vehicle. At approximately 3:27 a.m., a black pickup truck drove past Patty and Jordan. Jordan conducted a records check of the license plate-which matched the plate on R.V.'s truck-and it returned stolen. Patty saw that defendant was driving the truck. He then attempted to conduct a traffic stop by activating his overhead red and blue lights and siren. Defendant did not yield to the stop.
Defendant drove the truck through a parking lot, over a sidewalk, and continued southbound on the street. Defendant continued through an intersection with a stop sign without stopping, turned east and drove along the street against the flow of traffic. Patty and Jordan followed on the correct side of the street. Defendant continued driving against traffic until he entered a southbound freeway entrance. Defendant drove south on the freeway, "from one edge [of] the freeway to the other." At the time, there was freeway construction and defendant drove "behind ... the concrete barriers" and on the shoulders of the freeway. Defendant drove as though he was going to exit the freeway but made a late turn down the embankment back onto the freeway. He continued southbound on the freeway, "swerving between vehicles" on the freeway. Defendant again drove toward a freeway exit and, after driving toward the westbound exit, "climbed a steep dirt embankment and then began to travel the wrong way," eastbound on the street.
During the pursuit thus far, Patty had been reporting the pursuit to other officers via his patrol vehicle's radio. When defendant climbed the embankment, Patty ceased the pursuit because "[i]t was dangerous. [He] was scared the driver was going to kill someone." Approximately one minute later, Patty was informed that Bakersfield Police Officer Nickolas Brackett had located the truck and Patty attempted to rejoin the pursuit. Brackett had been preparing to use spike strips to stop the truck when he saw the truck driving eastbound in the westbound off-ramp to the freeway. He saw that defendant was the driver. Defendant continued to flee, driving against the direction of traffic as Brackett pursued. Brackett activated his red and blue lights and siren, but defendant did not yield. Defendant fled through a dirt field and "did several donuts . . . to kick up dirt and debris," at which point Brackett lost sight of him. Brackett rejoined the pursuit not long after when other officers advised him of the location of the truck. He saw defendant drive through a chain link fence and into a church parking lot.
Approximately 10 minutes after Patty had ceased pursuit, Patty and Jordan joined other officers where they found the truck parked, without any inhabitant, behind the church. Three fences were knocked down in the area where the truck was found. The officers formed a perimeter and began searching the surrounding neighborhood. More than five minutes but fewer than 30 minutes later, defendant was located near a pile of rubble in the front yard of a neighboring residential property, approximately 500 yards from the truck. Jordan found drug paraphernalia, specifically, a glass smoking pipe usually used for smoking methamphetamine or base cocaine, in defendant's right front pocket. Defendant also possessed gloves and a ski mask. Gloves and facial coverings are often possessed by thieves to protect their identities when committing offenses.
Patty looked at the interior of the truck and noticed that the ignition was damaged such that the truck could be started without a key. He did not locate any key in or near the truck. He also ran a records check on defendant's driver's license and found that his license was suspended.
When Patty called his report into dispatch during the pursuit, he described defendant as a White or Hispanic male with long hair, wearing a blue baseball cap. He acknowledged that defendant looked at trial much the same as he did on the date of the offense. He acknowledged further that defendant had a shaved head and did not have long hair.
DISCUSSION
I. Senate Bill 567
Defendant contends that we must vacate the sentence and remand the matter because he did not admit, and the jury did not find true, the facts underlying the circumstances in aggravation that the trial court relied upon in imposing the upper term. The People agree that Senate Bill 567 is retroactive to defendant but argue any error in imposition of the upper term is harmless beyond a reasonable doubt. We agree that any error in imposing the upper term was harmless because a jury would have found true the aggravating circumstances beyond a reasonable doubt.
As we explain below, to find that any error was harmless we would have to conclude (1)(a) beyond a reasonable doubt that the jury would have found beyond a reasonable doubt that the facts underlying at least one aggravating circumstance was true, and (1)(b) that there is no reasonable probability the jury would not have found the remaining circumstances true beyond a reasonable doubt, or if fewer than all circumstances are provable pursuant to part (1)(b) of this analysis, (2) that there is no reasonable probability the trial court would have imposed a lesser term based on the aggravating circumstances that would have been provable to the jury beyond a reasonable doubt.
Alternatively, this step is satisfied if, in imposing the upper term, the trial court relied upon an aggravating circumstance the underlying facts of which defendant admitted, or the trial court relied on defendant's prior convictions as an aggravating circumstance in consideration of a certified record of defendant's convictions. This first step of the harmless error inquiry is demanded by the Sixth Amendment. If it is not met, the analysis stops, and we conclude that the error was not harmless because the sentence violates the Sixth Amendment.
For the following reasons, we conclude the sentence does not comply with the requirements of section 1170, subdivision (b), but any error was harmless.
A. Additional Background
The trial court read and adopted the probation officer's recommendation regarding the following four circumstances in aggravation and one circumstances in mitigation. The court reasoned as follows:
"I will note that in a circumstance in mitigation, he has ... successfully completed actually or satisfactorily completed parole in two different cases as noted in the probation department. However, beyond that there are numerous circumstances in aggravation and that includes[, as the first circumstance in aggravation,] what [the prosecutor] has just referred to, the fact that the defendant has many prior felony convictions as an adult. Number two, the defendant has served five prior prison terms so those prior convictions for felonies were not minor. They were very serious cases resulting in prison commitments.
"The third aggravating factor or circumstance in aggravation is the fact that the defendant was actually on misdemeanor probation and on post-release community supervision when these events actually happened. And then finally the fourth circumstance in aggravation is that the defendant's prior performance on misdemeanor probation, felony probation, post-release community supervision, and state parole on other cases, not the two that I referred to that he completed satisfactory but others, all of those were unsatisfactory and that he failed to abide by the terms and/or conditions and re-offended.
"When I look at all that together, the facts of this case as well as the circumstances in mitigation and aggravation, I find that the circumstances in aggravation greatly outweigh those and ... I also agree with the probation officer that the upper term is justified for the reasons and the factual basis that I just mentioned."
The trial court then imposed the upper term on counts 1 and 3. Count 3 was stayed pursuant to section 654.
Defendant did not admit, and the jury did not find true any of the aggravating circumstances relied upon by the trial court in imposing the upper term. However, the record reflects that the trial court relied upon a certified record of defendant's convictions-People's exhibit 18-in making findings regarding his prior criminality.
B. Analysis
From March 30, 2007, to December 31, 2021, California's determinate sentencing law specified that "[w]hen a judgment of imprisonment [wa]s to be imposed and the statute specifie[d] three possible terms, the choice of the appropriate term . . . rest[ed] within the sound discretion of the court." (§ 1170, former subd. (b).)
Effective January 1, 2022, Senate Bill 567 amended section 1170, subdivision (b). (Stats. 2021, ch. 731, § 1.3.) Section 1170, subdivision (b)(2) now provides, "[t]he court may impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term, and the facts underlying those circumstances have been stipulated to by the defendant, or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial." (§ 1170, subd. (b)(2).) As an exception to the general rule, a trial court is permitted to rely upon a certified record of conviction to determine prior criminality for purposes of sentencing without submitting the prior conviction to a jury. (§ 1170, subd. (b)(3).)
As a threshold matter, the parties agree, as do we, Senate Bill 567 is retroactive to cases not yet final on appeal pursuant to In re Estrada (1965) 63 Cal.2d 740 (see People v. Dunn (2022) 81 Cal.App.5th 394, 402-403, review granted Oct. 12, 2022, S275655 (Dunn); People v. Flores (2022) 73 Cal.App.5th 1032, 1038-1039) and defendant's sentence is not yet final on appeal.
In this case, the jury made no findings regarding the aggravating circumstances. However, the trial court had before it a certified record of defendant's RAP sheet, which contained his prior convictions and dispositions, including prior prison and jail sentences and grants of probation. The RAP sheet also reflected violations of probation, parole, and postrelease community supervision. Section 1170, subdivision (b)(3) permitted the trial court to rely on the certified record of conviction to prove defendant's prior convictions for purposes of proving aggravating circumstances. As a result, the parties agree that the first aggravating circumstance relied upon by the trial court-that defendant had suffered numerous prior convictions-was proved in compliance with amended section 1170, subdivision (b). However, section 1170, subdivision (b)(3) does not permit the trial court to rely on a certified record of conviction to prove the second through fourth circumstances in aggravation-that defendant had served five prior prison terms, that defendant was on a grant of postrelease community supervision when he committed the offenses at bar, and that his prior performance on probation, parole, and postrelease community supervision was unsatisfactory.
Despite not all of the aggravating circumstances having been proved in compliance with section 1170, subdivision (b)(2) and (3), the upper term was imposed on counts 1 and 3. Imposition of the upper term on counts 1 and 3 is not in compliance with section 1170, subdivision (b). Therefore, unless imposition of the upper term on counts 1 and 3 was harmless, the sentence must be vacated and the matter remanded to the trial court for resentencing in compliance with section 1170, subdivision (b).
Again, we note that the law has changed since the trial court imposed the sentence in this case. At the time the court imposed the sentence, it complied with the applicable law.
The People contend that any error is harmless because all factors were provable to a jury beyond a reasonable doubt. We agree with the People.
This court recently articulated the standard for harmless error in the Senate Bill 567 context. (Dunn, supra, 81 Cal.App.5th at pp. 409-410.) We apply that standard:
"The reviewing court determines (1)(a) beyond a reasonable doubt whether the jury would have found one aggravating circumstance true beyond a reasonable doubt and (1)(b) whether there is a reasonable probability that the jury would have found any remaining aggravating circumstance(s) true beyond a reasonable doubt. If all aggravating circumstances relied upon by the trial court would have been proved to the respective standards, any error was harmless. If not, the reviewing court moves to the second step of [People v.] Lopez [(2022) 78 Cal.App.5th 459], (2) whether there is a reasonable probability that the trial court would have imposed a sentence other than the upper term in light of the aggravating circumstances provable from the record as determined in the prior steps. If the answer is no, the error was harmless. If the answer is yes, the reviewing court vacates the sentence and remands for resentencing consistent with section 1170, subdivision (b)." (Dunn, supra, 81 Cal.App.5th at pp. 409410.)
"Alternatively, this step is satisfied if the trial court relied upon an aggravating circumstance that relied only upon the fact of defendant's prior convictions and a certified record of defendant's convictions was admitted, or defendant admitted the facts underlying an aggravating circumstance. [¶] ... [S]tep (1)(a) or one of its two alternatives must be satisfied to avoid offending the Sixth Amendment ._ If not, the error is not harmless; the sentence must be vacated and the matter remanded to the trial court for resentencing consistent with section 1170, subdivision (b)." (Dunn, supra, 81 Cal.App.5th at p. 410, fn. 13.)
With that standard in mind, we revisit the aggravating circumstances relied upon by the trial court.
We begin by noting that all the aggravating circumstances relied upon by the trial court were historical considerations rather than considerations related to the nature of the present offense. Further, defendant and his counsel were provided a copy of the probation officer's report and defendant's RAP sheet, both detailing defendant's extensive criminal history, incarceration record, probation, parole, and postrelease community supervision history, and active postrelease community supervision status. (See § 1203d.) Specifically, defendant was convicted of: exhibiting an imitation firearm (§ 417.4) and possession of a controlled substance (Health &Saf. Code, § 11377, subd. (a)) on May 12, 2006, for which he was granted probation; possession of a controlled substance (Health &Saf. Code, § 11350, subd. (a)) on July 24, 2006, for which he was granted probation; possession of a controlled substance for sale (Health &Saf. Code, § 11378) on September 28, 2006, which necessarily violated his two prior grants of probation, and for which he was sentenced to 16 months in prison until his parole on May 21, 2007; possession of a controlled substance for sale (Health &Saf. Code, § 11378) on October 9, 2007, which necessarily violated the conditions of his parole, and for which he was sentenced to two years in prison until his parole on September 10, 2008, and discharge from parole on February 6, 2009; unlawful possession of a firearm (former § 12021, subd. (a)(1)) on August 4, 2009, for which he was sentenced to 16 months in prison until his parole on February 20, 2010, and discharge from parole on April 24, 2013; unlawful possession of a firearm (§ 29800, subd. (a)(1)) and possession of a controlled substance for sale while armed with a firearm (§ 12022, subd. (c); Health &Saf. Code, § 11351) on September 27, 2013, for which he was sentenced to prison for eight years eight months until his release on postrelease community supervision on October 18, 2017, which he violated four times on February 9, 2018, July 25, 2018, December 18, 2018, and March 14, 2019; resisting a peace officer (§ 148, subd. (a)(1)), possession of drug paraphernalia (Health &Saf. Code, § 11364), and misdemeanor carrying a concealed dirk or dagger (§§ 21310/17) on February 9, 2018, for which he was granted three years of misdemeanor probation and required to serve 60 days in jail; misdemeanor public intoxication (§ 647, subd. (f)) on May 14, 2018, for which he was sentenced to five days in jail, and which necessarily violated the terms of his probation; misdemeanor possession of ammunition by a prohibited person (§§ 30305, subd. (a)(1)/17), misdemeanor possession of a controlled substance (Health &Saf. Code, § 11377), and resisting a peace officer (§ 148, subd. (a)(1)) on July 25, 2018, for which he was granted three years of misdemeanor probation and required to serve 180 days in jail; unlawful taking or driving of a vehicle (Veh. Code, § 10851, subd. (a)) and resisting a peace officer (§ 148, subd. (a)(1)) in case No. BF174856A and possession of ammunition (§ 30305, subd. (a)(1)) and falsely identifying to a peace officer (§ 148.9, subd. (a)) in case No. BF175935A on July 18, 2019, for which he was sentenced to two years in prison on the latter and eight months in prison on the former, until his release on postrelease community supervision on February 3, 2020. Both the probation officer's report and the certified record of conviction reflected that defendant was on postrelease community supervision on the date of the offenses at bar. The probation report further reflects that the information regarding defendant's criminal history was obtained from the California Justice Information Services, the Department of Justice's Criminal Identification and Information database, the Department of Motor Vehicles' database, and defendant's juvenile records, among others.
At the sentencing hearing, defendant's counsel commented that the probation report reflected that defendant had been to prison "five or six times" and she did not contest the accuracy of that fact. She further noted the probation report recommended the court find defendant's satisfactory performance on parole on his October 9, 2007, and August 4, 2009 convictions. But she did not address whether his performance on the six subsequent periods of postrelease community supervision and probation-spanning 2013 to 2021 and including five violations of postrelease community supervision and commission of new offenses which necessarily violated defendant's probation in two grants of misdemeanor probation-was satisfactory. Defendant's counsel argued that some of his offenses that could be sentenced as misdemeanors should be so sentenced. However, neither defendant nor his counsel contested the accuracy of any of the facts underlying the aggravating circumstances as outlined by the probation officer. There is no logical reason that defendant and his counsel would not have challenged the accuracy of his prior conviction, probation, parole, postrelease community supervision, and prison commitment records, as well as his active postrelease community supervision and misdemeanor probation statuses, if not true. If any of that information was incorrect, defendant could have proved that it was untrue with relative ease.
In short, the evidence contained in the certified RAP sheet and the absence of any disagreement by defendant and his counsel, convince us beyond a reasonable doubt that a jury would have found true beyond a reasonable doubt the second, third, and fourth aggravating circumstances: that defendant had served five prior prison terms, was on misdemeanor probation and postrelease community supervision at the time of the offenses, and had not satisfactorily completed parole, probation, and postrelease community supervision except with respect to parole after his October 9, 2007, and August 4, 2009 convictions. For that reason, we conclude that noncompliance with section 1170, subdivision (b) was harmless.
We note that under Dunn, we are only required to find beyond a reasonable doubt that the jury would have found true beyond a reasonable doubt one aggravating circumstance. As to the other aggravating circumstances, we need only conclude that there is no reasonable probability the jury would not have found those factors true. (Dunn, supra, 81 Cal.App.5th at pp. 409-410.)
II. Section 654
Defendant next contends that the trial court erred in failing to stay count 6, misdemeanor obstructing, resisting, or delaying a peace officer, since he committed that crime with the same objective as counts 2 and 3, driving in willful or wanton disregard for the safety of persons or property while fleeing a pursuing peace officer and evading a peace officer by driving on a highway in the opposite direction of traffic, respectively. He argues that the criminal objective underlying counts 2, 3, and 6 was "escaping capture by the police."
The People disagree, contending that there is substantial evidence supporting the trial court's implied finding that the conduct at issue in count 6 was divisible in time from the conduct at issue in counts 2 and 3. We agree with the People. Substantial evidence supported the trial court's implied conclusion that defendant had an opportunity to reflect between the offenses.
A. Additional Background
At closing statements, the prosecutor described that most of the elements of counts 2 and 3 are identical, with the exception of the third element. The third element of count 2 required the jury to find that "[d]uring th[e] pursuit the defendant [d]rove with a willful and wanton disregard for the safety of persons or property or during the pursuit the defendant caused damage to ... any property while driving." Whereas the third element of count 3 required the jury to find that "[d]uring the pursuit the defendant drove th[e] [truck] on the highway [or a street] in a direction opposite to the flow of traffic." She then explained how the evidence applied to those counts. She argued that defendant's conduct met the third element of counts 2 and 3 when he "drove over a sidewalk[,] [r]an a stop sign[,] multiple times drove the wrong way on several roads[,] drove and swerved on the shoulders of [a highway,] and crashed into a church fence."
The prosecutor described the elements of count 6 as follows:
"Count 6, obstructing, delaying, resisting a peace officer. Again, sounds like [c]ount 2 and 3 but they're not the same. These are separate charges. Officers Patty and Brackett with BPD. They were peace officers lawfully performing or attempting to perform their duties as a peace officer. The defendant willfully resisted or delayed those officers in those attempted performance of that duty. When he acted, he knew or reasonably should have known that Officer Patty or Officer Brackett was a peace officer performing or attempting to perform his duties."
The prosecutor then described defendant's conduct that she contended constituted the violation on count 6: "He did not yield to th[e] traffic stops and then after he crashed through the fences and began doing donuts, the dirt became too much for Officer Brackett to see and he abandon[ed] the vehicle[,] fled and hid in the neighboring backyard."
At sentencing, defendant's counsel voiced an objection to running "the eight[-]month part of" count 2 consecutive to count 1. However, she voiced no similar objection to imposition of a concurrent term on count 6, rather than staying any sentence on that count pursuant to section 654.
B. Relevant Legal Principles and Standard of Review
At the time of defendant's sentencing, section 654, subdivision (a) provided that "[a]n 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." Effective January 1, 2022, Assembly Bill No. 518 (2021-2022 Reg. Sess.) modified section 654, subdivision (a), to permit an act or omission punishable under two or more provisions of law to "be punished under either of such provisions." (Stats. 2021, ch. 441, § 1.)
The inquiry to determine whether separate sentences can be imposed pursuant to section 654 is "[w]hether a course of criminal conduct is divisible and therefore gives rise to more than one act." (Neal v. State of California (1960) 55 Cal.2d 11, 19; People v. Correa (2012) 54 Cal.4th 331, 335-336.) That inquiry turns on "the intent and objective" of the defendant. (Correa, at p. 336.)" 'If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.'" (Ibid.) However, "multiple crimes are not one transaction where the defendant had a chance to reflect between offenses and each offense created a new risk of harm. [Citations.] 'Separate sentencing is permitted for offenses that are divisible in time ." (People v. Felix (2001) 92 Cal.App.4th 905, 915.)
"The question of whether section 654 is factually applicable to a given series of offenses is for the trial court, and the law gives the trial court broad latitude in making this determination." (People v. DeVaughn (2014) 227 Cal.App.4th 1092, 1113.) Where the trial court makes no express section 654 findings, we consider whether substantial evidence supports an implied finding of separate transactions. (See People v. Islas (2012) 210 Cal.App.4th 116, 129; DeVaughn, at p. 1113.)"' "We must 'view the evidence in a light most favorable to the respondent and presume in support of the [sentencing] order the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]' [Citation.]" [Citation.]'" (DeVaughn, at p. 1113.)
C. Analysis
The People argue that People v. Fuentes (2022) 78 Cal.App.5th 670 (Fuentes) is instructive. We agree.
In Fuentes, officers conducted a vehicle stop on a vehicle that they determined had been reported stolen. (Fuentes, supra, 78 Cal.App.5th at p. 674.) Defendant initially stopped the vehicle but drove away when the officers directed him to exit the vehicle. (Ibid.) The officers pursued the defendant as he "ran a stop sign, crossed over into oncoming traffic, and eventually crashed the front of the car into a brick wall." (Ibid.) The defendant then exited the vehicle and fled on foot. (Ibid.) One of the pursuing officers saw the defendant reach for something in his waistband and the officer deployed his taser. (Ibid.) The taser was ineffective and defendant continued to run. (Ibid.) The officer caught defendant, struck him on the head with the taser, punched him, and arrested him. (Ibid.)
The defendant in Fuentes was convicted of driving in willful or wanton disregard for the safety of persons or property while fleeing a pursuing peace officer (Veh. Code, § 2800.2) and obstructing, resisting, or delaying a peace officer (§ 148, subd. (a)(1))-the same offenses at issue here. (Fuentes, supra, 78 Cal.App.5th at p. 675.) The trial court in Fuentes then sentenced defendant to imprisonment on the Vehicle Code section 2800.2 count and a concurrent term of imprisonment on the section 148, subdivision (a)(1) count. (Ibid.) On appeal, the defendant presented the same argument defendant makes in this case: that the trial court erred in sentencing him to a concurrent term of imprisonment on the section 148, subdivision (a)(1) offense. The appellate court explained:
"Multiple punishments for a single course of flight from an officer could, in some cases, be prohibited by section 654. We agree, however, with the People that substantial evidence supported the conclusion that [the defendant]'s flight by vehicle and flight on foot were not part of the same course of conduct. Although [the defendant's] goal was to flee the pursuing officers, his flight on foot after crashing into a wall carried with it a new risk of violence for [the defendant], the pursuing officers, as well as potential bystanders. As [the pursuing officer] testified, he believed [the defendant] might have been reaching for something in his waistband during the foot flight, and thus he struck [the defendant] when he caught up to him out of a concern for personal safety. (See also People v. Hairston (2009) 174 Cal.App.4th 231 [continued flight after encountering successive officers justified multiple punishment due to the risk of harm each encounter created]; People v. Trotter (1992) 7 Cal.App.4th 363, 368 [multiple punishment justified for successive shots fired because each shot could have put different people in danger].) Moreover, after crashing the car, there was time for [the defendant] to 'reflect and consider his next action.' (Ibid.) Absent a trial court objection, the People had no reason to offer additional evidence from the officers about why the flight on foot might warrant different punishment than the flight in a vehicle. On this record, there was substantial evidence for the trial court's implied finding that section 654 was inapplicable." (Fuentes, supra, 78 Cal.App.5th at pp. 680-681.)
Defendant argues that Fuentes is distinguishable because, in this case, defendant did not reach for his waistband or do anything that increased the risk of danger when he hid amongst nearby rubble.
We disagree with defendant that the trial court could not reasonably have concluded on the evidence before it that (1) defendant had separate objectives in fleeing Patty and Jordan until they lost sight of defendant, then Brackett until he lost sight of defendant, then the other officers who pursued him into the church parking lot until they lost sight of him; (2) defendant increased the danger to the officers when he fled on foot; and/or (3) that after abandoning the truck, there was time for defendant to reflect and consider his next action. First, each encounter between defendant fleeing in the truck and a peace officer pursuing defendant posed a risk to defendant, the officers, and the public. (People v. Hairston, supra, 174 Cal.App.4th at p. 240.) The record reflects that three sets of officers pursued defendant in his flight. Second, defendant's flight from officers in the truck was dangerous by nature of driving over a sidewalk, swerving between vehicles, driving against traffic, and doing donuts to kick up dirt and debris; defendant's flight on foot caused a separate delay and risk of harm to the public and officers pursuing defendant at night, on foot, through a residential neighborhood. Third and finally, as was the case in Fuentes, at the termination of the pursuit, there was time for defendant to" 'reflect and consider his next action.'" (Fuentes, supra, 78 Cal.App.5th at p. 681.)
In short, on this record there was substantial evidence in support of the trial court's finding that section 654 was inapplicable to count 6.
DISPOSITION
The judgment is affirmed.
[*] Before Levy, Acting P. J., Poochigian, J. and Snauffer, J.