Opinion
C050319
4-20-2007
THE PEOPLE, Plaintiff and Respondent, v. ANDONO LEON MORRIS, Defendant and Appellant.
NOT TO BE PUBLISHED
In a trial to the court sitting without a jury, defendant Andono Leon Morris was convicted of driving in willful or wanton disregard for the safety of persons or property while eluding a pursuing peace officer (count one) and of driving a vehicle involved in an injury accident and thereafter failing to aid the injured person and give pertinent information to the person and an officer (count two). The court found defendant had two prior serious felony convictions for purposes of the "three strikes law" and had served two prior separate prison terms. He was sentenced to state prison for 25 years to life plus two years for the prior prison term enhancements.
On appeal, defendant contends his conviction on count two is not supported by sufficient evidence that he knew his passenger was injured, (2) the imposition of concurrent prison terms for counts one and two violated Penal Code section 654, (3) 27 years to life is cruel and/or unusual punishment, (4) the court abused its discretion in denying his motion to strike one of his prior serious felony convictions for purposes of sentencing (§ 1385; People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (hereafter Romero), and (5) the amended abstract of judgment must be corrected. We shall affirm the judgment and order the court to correct the abstract.
FACTS
On December 16, 2004, defendant borrowed his sisters Dodge Stratus, used the car to drive her mother home, and then picked up a friend, Angalett Mims.
At about 1:00 a.m., police officer Bill Williams, who was on patrol in uniform and driving a marked patrol car, saw the Dodge Stratus and noticed its brake lights were not operating. Williams activated his overhead red and blue lights to make a traffic stop. Defendant, the driver of the Dodge, initially pulled over but then sped away after Williams got out and walked toward the Dodge. Williams returned to the patrol car and chased the Dodge with his lights and siren operating.
The fog was thick and visibility was about one-half block. While making a turn, the Dodge skidded across both lanes of traffic, struck the curb, and accelerated up to approximately 65 miles per hour, running through a red light without slowing. At another intersection, defendant decelerated and made a 180-degree turn. Officer Williams had to brake in order to avoid colliding with the Dodge as it made the turn.
The Dodge sped off, fishtailing as it rounded the corner in a residential area. Its speed increased to 65 miles per hour, well over the 25-mile-per-hour limit.
Defendant lost control of the Dodge when it went over a dip in the roadway and hit a bump; it spun around several times, struck a fence and a tree, and ended up in an open field. The Dodge was "totaled." Its front bumper was on the ground near the fence, and its rear bumper was "barely hanging on."
Upon seeing the crash, Officer Williams requested medical assistance because he assumed "there was going to be somebody that was injured."
Immediately after the crash, defendant told Mims to run but she stayed in the Dodge. Defendant fled without asking Mims if she was injured and without checking on her or aiding her in any way. Officer Williams saw defendant get out of the car and ordered him to stop, but defendant ran away.
Seeing Mims in the front seat of the Dodge with her seat-belt on, Williams went to her aid rather than chase after defendant. Mims was "upset, scared and shaking," and told Williams her neck hurt. She also had pain in her leg. When "rescue" workers arrived on the scene, they put a brace on her neck because she told them it hurt. She was then transported to a hospital, where she said she was "okay" and declined treatment. By the time of trial, she still had pain in her leg, although she had not seen a doctor for it.
A search of the Dodge revealed a sales contract in the name of Anetta Ford, defendants sister. Ford told Officer Williams that defendant had borrowed the Dodge at about 11:00 p.m. the previous evening. When Fords daughter later went to retrieve some property from the Dodge, she saw it had been "[c]ompletely totaled."
Defendants parole agent testified that defendant absconded from supervision before the present incident, and a warrant was outstanding for his arrest. Conditions of defendants parole precluded him from being away from his home at the time of the incident and from driving his sisters car without notifying the parole agent.
DISCUSSION
I
Defendant contends that his conviction on count two, for violating Vehicle Code section 20001, is not supported by sufficient evidence that he knew of Mimss injury at the time he fled the accident scene. We are not persuaded.
Vehicle Code section 20001, subdivision (a) provides that the "driver of any vehicle involved in an accident resulting in injury to any person, other than himself or herself . . . shall immediately stop the vehicle at the scene of the accident and shall fulfill the requirements of Sections 20003 and 20004."
Vehicle Code section 20003, subdivision (a) requires the driver to "give his or her name, current residence address, the names and current residence addresses of any occupant of the drivers vehicle injured in the accident, the registration number of the vehicle he or she is driving, and the name and current residence address of the owner . . . to any traffic or police officer at the scene of the accident," and requires the driver to "render to any person injured in the accident reasonable assistance, including transporting, or making arrangements for transporting, any injured person to a physician, surgeon, or hospital for medical or surgical treatment if it is apparent that treatment is necessary or if that transportation is requested by any injured person." (Italics added.)
A conviction under section 20001, subdivision (a) of the Vehicle Code requires proof of knowledge of the injury. (People v. Holford (1965) 63 Cal.2d 74, 80.) Such knowledge usually "must be derived from the surrounding facts and circumstances of the accident" because "the driver who leaves the scene of the accident seldom possesses actual knowledge of injury; by leaving the scene he forecloses any opportunity to acquire such actual knowledge." (Ibid.) Hence a "requirement of actual knowledge of injury would realistically render the statute useless. . . . [C]riminal liability attaches to a driver who knowingly leaves the scene of an accident if he actually knew of the injury or if he knew that the accident was of such a nature that one would reasonably anticipate that it resulted in injury to a person." (Ibid.; italics added; fn. omitted.)
In this case, the crash was so serious that a reasonable person in defendants position would have anticipated it caused injuries to Mims. (People v. Holford, supra, 63 Cal.2d at p. 80.) The Dodge spun around several times, hit a fence and tree, and was "completely totaled." Upon seeing the crash, Officer Williams immediately called for medical assistance because he anticipated the occupants were injured.
Defendant counters that, unlike Officer Williams, defendant "had the benefit of actually seeing Ms. Mims," and "[t]here were not any objective signs of injury, such as bleeding, scratches, or other signs of physical trauma." He also knew that, regardless of the "force of the crash," the collision had not caused him any injury.
However, when defendant told Mims to flee, she did not do so. This fact, coupled with the severe nature of the crash, would have led a reasonable person to believe Mims was hurt even though she did not have any other visual signs of injury.
The force of crash distinguishes this case from People v. Carter (1966) 243 Cal.App.2d 239 (hereafter Carter), upon which defendant relies. Indeed, Carter recognized that "constructive knowledge of personal injury" may be "imputed to the driver of a vehicle . . . where the seriousness of the collision would lead a reasonable person to assume there must have been resulting injuries." (Id. at p. 241.) This was such a case.
Defendant tries to minimize Mimss injuries by noting her refusal of medical treatment at the hospital and her "less than certain" testimony at trial. However, Vehicle Code section 20001 does not require any particular degree of injury; it requires only "injury to any person." Regardless of whether Mims sought treatment, substantial evidence established that she had neck and leg pain immediately following the collision and continued to have leg pain five months later at trial.
In sum, the count two conviction is supported by substantial evidence that defendant had constructive knowledge of injury to Mims. (People v. Holford, supra, 63 Cal.2d at p. 80.)
II
The trial court imposed concurrent sentences on counts one and two. In defendants view, this violated Penal Code section 654s proscription of multiple punishment. (Further section references are to the Penal Code.) He reasons that the crimes were committed during a continuous course of conduct and that his "objective was the same in fleeing from law enforcement while driving the vehicle and in immediately leaving the vehicle following the crash — the avoidance of being apprehended by law enforcement." The contention fails.
Section 654 states in pertinent part: "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."
"`The proscription against double punishment in section 654 is applicable where there is a course of conduct which . . . comprises an indivisible transaction punishable under more than one statute . . . . The divisibility of a course of conduct depends upon the intent and objective of the actor, and if all the offenses are incident to one objective, the defendant may be punished for any one of them but not for more than one. [Citation.] `The defendants intent and objective are factual questions for the trial court; [to permit multiple punishments,] there must be evidence to support a finding the defendant formed a separate intent and objective for each offense for which he was sentenced. [Citation.] [Citation.]" (People v. Coleman (1989) 48 Cal.3d 112, 162; see People v. Latimer (1993) 5 Cal.4th 1203, 1208.)
It is undisputed that defendants intent and objective, from the time he sped away from Officer Williams until he collided with the fence and tree, was to drive in the requisite manner to evade the pursuing police officer. But the trial court reasonably could find that, once the pursuit ended in the crash, defendant had the separate intent and objective of avoiding the assistance he owed to Mims and the informational duties he owed to any officers at the scene of the accident. Separate objectives may exist under section 654 "when the objectives were either (1) consecutive even if similar or (2) different even if simultaneous." (People v. Britt (2004) 32 Cal.4th 944, 952.)
As explained in People v. Butler (1986) 184 Cal.App.3d 469, which rejected a claim similar to defendants, "the purpose of Penal Code section 654 . . . is to insure that a defendants punishment will be commensurate with his culpability. If multiple punishment is prohibited in this case, as a matter of law, there would be no incentive for a person who causes an accident [while fleeing from police] to stop and render aid as required by Vehicle Code section 20001. In fact, noncompliance would be rewarded. A defendant would suffer no greater criminal liability if he took his chances on escaping than if he stopped and rendered aid. Our Legislature could not and did not intend such an absurd result." (Id. at p. 474.)
The concurrent sentences were properly imposed.
III
Defendant contends his sentence of 27 years to life is "grossly disproportionate" to his offenses and thus violates the federal and state proscriptions of cruel and/or unusual punishment. We disagree.
A
A punishment violates the Eighth Amendment to the United States Constitution if it is an "`extreme sentence[]" that is "`"grossly disproportionate" to the crime." (Ewing v. California (2003) 538 U.S. 11, 23 [155 L.Ed.2d 108, 119] (hereafter Ewing) (plur. opn. of OConnor, J.); Lockyer v. Andrade (2003) 538 U.S. 63, 72 [155 L.Ed.2d 144, 156]; Harmelin v. Michigan (1991) 501 U.S. 957, 1001 [115 L.Ed.2d 836, 869] (conc. opn. of Kennedy, J.).)
In noncapital cases, "`successful challenges to the proportionality of particular sentences have been exceedingly rare. [Citation.]" (Ewing, supra, at p. 21 .) For example, the United States Supreme Court upheld application of Californias "three strikes law" where Ewing was sentenced to a term of 25 years to life for shoplifting golf clubs worth approximately $1,200. (Id. at pp. 17-18, 30-31 [155 L.Ed.2d at pp. 114-115, 123].) In rejecting a cruel and unusual punishment claim, the court explained the Eighth Amendment contains a narrow "proportionality principle" applicable to noncapital sentences. It does not require strict proportionality between crime and sentence, and forbids only extreme sentences grossly disproportionate to the crime. (Id. at p. 23 .)
Here, defendant led a police officer on a high-speed chase, in dense fog, through a residential neighborhood. Although the chase occurred at about 1:00 a.m., defendant ran traffic lights and skidded onto the wrong side of a street, placing people and property in harms way. He did this while he had a passenger in the car with him. The dangerousness of his offense is unquestionable, and the level of seriousness was greater than that in Ewing.
Given the grossly reckless nature of defendants crime and the high risk of death or bodily injury it posed to bystanders, the punishment of 25 years to life is not grossly disproportionate, nor does it constitute cruel and unusual punishment under the Eighth Amendment.
B
A punishment violates the California Constitution if "it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity." (In re Lynch (1972) 8 Cal.3d 410, 424.) To make this determination, courts examine the nature of the offense and the offender, compare the punishment with that imposed for more serious crimes in the same jurisdiction, and compare the punishment with that imposed for the same offense in different jurisdictions. (Id. at pp. 425-427.)
In considering the nature of the offense and the offender, we examine not only the offense as defined by the statutes but also the particular facts of defendants crime. We review his motive, the manner in which he committed the crime, the extent of his involvement in the offense, and the consequences of his acts. We also take into account his culpability in light of age, prior criminality, personal characteristics, and state of mind. (People v. Crooks (1997) 55 Cal.App.4th 797, 806.)
Defendant notes that his crimes were "wobbler offenses," crimes that could be charged as a felony or a misdemeanor, and asserts that they were "neither serious nor violent." He ignores that his conduct endangered the lives of Mims, Officer Williams, and anyone else who was using the public streets at that time in question. He drove at speeds as high as 65 miles per hour in a 25 miles per hour zone when visibility was as low as one-half block due to dense fog. He skidded through an intersection, ran a red light, made an unsafe 180-degree turn, fishtailed through another turn, crashed into a fence and tree, and ended up in a field. The fact that Mims emerged relatively unscathed does not lessen the inherent danger of defendants offenses.
At the time of sentencing, defendant was 37 years old and had committed many crimes, beginning in 1979 when he was 11 years old and committed grand theft. He violated juvenile probation several times and, in 1981, committed receiving stolen property. In 1982, committed burglary. In 1983, he was sent to the California Youth Authority (CYA) for committing burglary, kidnapping to commit robbery, and robbery. In 1985, he again was sent to CYA, after he committed receiving stolen property. In 1991, at the age of 23, he was convicted of receiving a stolen car. In 1993, defendant was convicted of voluntary manslaughter and second degree robbery and was sentenced to state prison. After his release from prison in 1999, he violated parole on three occasions and was returned to custody. In 2001, he was convicted of sexual battery of a 13-year-old and again was committed to state prison. Paroled in 2003, he was returned to custody in January 2004. Released in May 2004, he absconded on parole and committed the present offenses in December 2004.
The probation officer aptly remarked that defendant is "appearing before the court on his sixth adult felony conviction. This defendants victimization of the community has no boundaries. He has involved himself in a homicide, and participated in the sexual assault of minors. This is further aggravated by the fact that several of his offenses have involved the threat and use of firearms."
Defendant claims he participated in the prior manslaughter offense under duress imposed by an armed coparticipant. However, the probation report indicates that, after defendant discovered the coparticipant was armed, he had an opportunity to flee in an automobile while the coparticipant was around a corner and out of sight. Instead, defendant picked up the victim and drove him around the corner to the waiting coparticipant.
Defendant complains that, except for the armed robbery and the manslaughter, the record sheds little factual light on his prior offenses; thus, he argues, his criminal history should not be given "undue weight" in the proportionality analysis. Again, we disagree. The crimes speak for themselves, and it was defendants obligation to bring forth any circumstances that would portray them in a more favorable light.
In comparing the challenged penalty with punishments for more serious offenses committed in the same jurisdiction, defendant says his sentence is far greater than the maximum punishment imposed for "far more serious offenses" such as voluntary manslaughter (11 years), second degree murder (15 years to life), or rape (eight years). But the so-called comparison ignores that he is not being punished "merely on the basis of his current offense but on the basis of his recidivist behavior." (Cf. People v. Kinsey (1995) 40 Cal.App.4th 1621, 1630; People v. Cartwright (1995) 39 Cal.App.4th 1123, 1136-1137.) Thus, the "`basic fallacy of [defendants] argument lies in his failure to acknowledge that he "is not subject to a life sentence merely on the basis of his current offense but on the basis of his recidivist behavior. Recidivism in the commission of multiple felonies poses a manifest danger to society[,] justifying the imposition of longer sentences for subsequent offenses. [Citations.]" [Citation.]" (People v. Mantanez (2002) 98 Cal.App.4th 354, 366, quoting People v. Stone (1999) 75 Cal.App.4th 707, 715.)
As for the third comparison, defendant correctly concedes that, although Californias sentencing scheme is among the most severe recidivist schemes in the nation, the laws harshness does not render it unconstitutional. "That Californias punishment scheme is among the most extreme does not compel the conclusion that it is unconstitutionally cruel or unusual. This state constitutional consideration does not require California to march in lockstep with other states in fashioning a penal code. It does not require `conforming our Penal Code to the "majority rule" or the least common denominator of penalties nationwide. [Citation.] Otherwise, California could never take the toughest stance against repeat offenders or any other type of criminal conduct." (People v. Martinez (1999) 71 Cal.App.4th 1502, 1516.)
Defendants sentence does not constitute cruel or unusual punishment within the meaning of the California Constitution.
IV
Defendant contends the trial courts denial of his Romero motion to strike one of his strike convictions was an abuse of discretion because it resulted in a sentence that is cruel and/or unusual. We have already rejected the premise of this argument. (See part III, ante.) And the contention lacks merit in all other respects.
A trial court has discretion to strike a prior serious felony conviction for purposes of sentencing only if the defendant falls outside the spirit of the three strikes law. (§ 1385; People v. Williams (1998) 17 Cal.4th 148, 161; Romero, supra, 13 Cal.4th at pp. 529-530.) In deciding whether to do so, the court "must consider whether, in light of the nature and circumstances of [defendants] present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, [he] may be deemed outside the schemes spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams, supra, 17 Cal.4th at p. 161.)
The trial courts "failure to . . . strike a prior conviction allegation is subject to review under the deferential abuse of discretion standard." (People v. Carmony (2004) 33 Cal.4th 367, 374.) Only in "an extraordinary case—where the relevant factors described in Williams, supra, 17 Cal.4th 148, manifestly support the striking of a prior conviction and no reasonable minds could differ"—would the failure to strike a prior conviction be an abuse of discretion. (Id. at p. 378.)
Here, in denying defendants Romero motion, the trial court explained: "Based on the defendants extensive criminal history, the fact that he has two serious violent felonies in `93 that were factually involved two separate events and the fact that once he was released on parole he was then shortly convicted of another felony, the 243.4[,] and was, again, sentenced to State prison and then shortly after the release from prison committed this particular offense, the Court finds based on his prior criminal conduct and his previous felony convictions and the nature and extent of this particular offense, the potential for violence, the potential of injury to others and the extended nature of the chase in this particular situation and the fact that [defendant] had ample opportunity to avoid this situation he didnt have to run from the officers after the initial stop and he had numerous opportunities to end the chase by pulling over and then once the crash occurred and a person was left in his vehicle, he left the scene without giving any assistance to the injured individual. Considering his previous records and the nature of this offense the Court declines to strike a prior under Romero and denies the motion."
Thus, the trial court understood its discretion, considered the relevant facts, and reached an impartial decision that was in conformity with the law. The decision not to strike either of defendants two prior strike convictions was not irrational or arbitrary. There was no abuse of discretion.
V
Defendant contends, and the People concede, that the amended abstract of judgment filed on February 21, 2006, must be corrected in two respects.
Part 8 of the amended abstract erroneously states that defendant was sentenced pursuant to both the three strikes law and the one strike law. The "X" in the box before "PC 667.61," the one strike law, should be deleted.
Part 13 of the amended abstract does not state whether defendants local conduct credits were computed pursuant to section 4019 or section 2933.1. An "X" should appear in the box before "4019."
DISPOSITION
The judgment is affirmed. The trial court is directed to (1) correct the amended abstract of judgment by deleting the "X" in the box before "PC 667.61" and by placing an "X" in the box before "4019," and (2) send a certified copy of the corrected abstract to the Department of Corrections and Rehabilitation.
I concur:
NICHOLSON, J.
RAYE, J., Concurring and Dissenting.
I respectfully dissent from part I of the opinion.
That defendant was reckless in his driving and showed little regard for his passenger, Angalett Mims, cannot be questioned. No automobile driver with a modicum of concern or compassion would fail to inquire into the health of a passenger whose life was endangered by the drivers conduct. However, Vehicle Code section 20001, subdivision (a) does not impose criminal penalties for a failure to inquire. The statute requires either actual knowledge of injury or knowledge that "the accident was of such a nature that one would reasonably anticipate that it resulted in injury to a person."
Here, it is undisputed that there were no visible or other signs that defendants passenger was injured — no blood, no screams or plea for assistance, no contorted limbs, and no evidence of contact with objects inside or outside of the vehicles interior. The assessment that she was injured is based largely on her subjective complaints of neck and leg pain. Defendant, presumably subject to the same forces as his passenger, darted away from the scene with no ill effects. While his sudden departure was morally repugnant, it supports his assertion that he reasonably assumed his passenger was in no worse condition than himself. The automobile itself was a total wreck, suggesting either tremendous physical forces or shoddy construction, but defendant, being inside the car, could not assess the damage to the cars exterior. Thus, while the accident may have been of such a nature that a third party, observing the wreckage, would have suspected injury, defendant walked (or ran) away from the destruction with nary a scar, leaving behind a passenger who appeared to be perfectly healthy. The fact that Mims, who was not responsible for defendants criminal behavior, chose to ignore his instructions to run is not evidence that physical injury impaired her mobility.
I find defendants conduct in regard to Mims reprehensible but I cannot conclude that it violated Vehicle Code section 20001, subdivision (a). Because defendant was not properly convicted of count two, his contention regarding Penal Code section 654 is rendered moot.
I concur with the majority in all other respects.