Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCS187703, H. Ronald Domnitz, Judge.
McDONALD, Acting P. J.
A jury convicted Norman Paul Blanco of numerous counts in connection with his crimes on September 12 and 13, 2005. The court in the original proceedings sentenced Blanco to 50 years to life, plus a nine-year determinate term. However, on appeal, this court vacated the sentence and remanded for resentencing because we concluded a true finding regarding a prior juvenile adjudication was not supported by substantial evidence. (People v. Blanco (July 22, 2008, D049359) [nonpub. opn.] (Blanco I).) On remand, the court sentenced Blanco to a total term of 20 years 4 months, which included the principal term for assault with a deadly weapon and personal use of a firearm (Pen. Code §§ 245, subd. (a)(2), 12022.5, subd. (a), count 3) and consecutive terms for each of Blanco's convictions for unlawfully taking and driving a vehicle (Veh. Code, § 10851, subd. (a), count 9) and for evading an officer with reckless driving (Veh. Code, § 2800.2, subd. (a), count 10).
All further statutory references are to the Penal Code unless otherwise specified.
During oral argument, the People noted the abstract of judgment does not reflect the sentence on Blanco's count 11 jury conviction of violating Vehicle Code section 20002 (only property damage caused by driver of vehicle involved in an accident). The penalty for violation of Vehicle Code section 20002 is imprisonment in the county jail for not more than six months (Veh. Code, § 20002, subd. (c)). Although the record is not entirely clear, the trial court at sentencing stated the total prison sentence imposed on counts 3 through 14 was 20 years 4 months. To reach this result, we conclude the trial court imposed a six-month county jail term on count 11 with credit for time served.
In this appeal, Blanco asserts the trial court erred by not staying the sentence on count 9 under section 654. He alternatively asserts that, even if section 654 does not apply, the trial court abused its discretion by imposing sentences for counts 3, 9 and 10 consecutively rather than concurrently.
I
RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
Although Blanco's numerous convictions arose out of conduct over a two-day period, we outline only those facts relevant to Blanco's appellate contentions in this appeal, relying on the record from, as well as our opinion in, Blanco I, supra, D049359.
A. The Facts
On September 12, 2004, Shendel Dame (Blanco's girlfriend) and Blanco were together at Blanco's apartment when another woman with whom Blanco was romantically involved (Vickie Pena) arrived to visit Blanco. An argument ensued between Blanco and Dame. Blanco fired a gunshot into the floor. Dame locked herself inside the bathroom, and heard Blanco fire three shots in her direction. A few minutes later, she opened the bathroom door. She saw Blanco holding a gun pointed directly at her, and she slammed the door.
These events formed the basis for numerous convictions, including Blanco's count 3 conviction.
The next day, Blanco and Pena were at his apartment when Dame arrived. She said she was there to pick up her belongings. Blanco asked Pena for the keys to Pena's car, ostensibly for the purpose of retrieving Dame's camera. However, Blanco instead drove away in Pena's car (without her permission) and drove to Dame's parents' house. Dame called the police from Blanco's apartment but, by the time she finished the telephone call, she realized Blanco had left in Pena's car.
Police responded to Dame's call and arrived at Blanco's apartment. While police were there, Blanco called the apartment and Dame answered. Dame learned Blanco was at her family's home. While in the family's home, Blanco hid his handgun in a dresser drawer.
Police arrived at Dame's family's home, began to surround it, and told Dame's family to come outside. However, as Dame's family left the home, Blanco also slipped out and ran to Pena's car. Officer Giaime drew his gun and ordered Blanco to stop, but Blanco got into the vehicle and drove away.
Giaime and another officer pursued Blanco using lights and sirens. A police helicopter reported Blanco's movements to Giaime, who arrived at Woodlawn Avenue and E Streets, and got out of his police car. Approximately 10 seconds later, Giaime heard three loud pops, which he assumed was gunfire. When he saw Blanco's vehicle approaching, Giaime drew his weapon and ordered him to stop. Blanco ducked down and accelerated past Giaime. Returning to his car, Giaime heard another loud sound, and saw Blanco had crashed into another vehicle. Giaime went to the collision scene and saw Blanco standing outside his vehicle; Blanco then turned and ran. Giaime chased him as he jumped over a fence. A citizen intervened and held Blanco until Giaime arrived and apprehended him.
Officer Rowbotham also responded to the call to Dame's family's home. He was dressed in his uniform, and proceeded to handle traffic control at an intersection. He watched as Blanco left the apartment, eluded the other police officers, ran to a vehicle, and drove away. Rowbotham turned on his motorcycle lights and siren, and chased Blanco through city streets and into a strip mall parking lot. While other officers pursued Blanco, Rowbotham stopped his motorcycle in the parking lot. Blanco drove towards Rowbotham, who pulled out his gun. As Blanco raced past him, Rowbotham saw "[Blanco's] whole upper body was... level or lower than the dashboard of the vehicle. He was completely laying across the seats."
Officer Rowbotham drove from the parking lot, south on Woodlawn Street and saw Blanco approach from around a corner, straddling the center line and driving "possibly at the fastest possible speed you could make that corner as a vehicle... the suspension was extended, the vehicle was sliding around the corner." Rowbotham jumped off his motorcycle and ran. He pulled out his gun. He testified, "I just wanted to get out of the road. I thought for sure he was trying to run me over." Blanco drove to within approximately one foot of Rowbotham, who fired three shots. Rowbotham estimated Blanco was driving at 50 miles an hour. Numerous other witnesses testified to Rowbotham's pursuit of Blanco and the reckless driving (as well as the danger posed to Rowbotham by such driving) Blanco engaged in to avoid capture.
Among other counts, the jury convicted Blanco of assault with a deadly weapon (§ 245, subd. (a)(2), count 3), unlawfully taking and driving a vehicle (Veh. Code, § 10851, subd. (a), count 9) and evading an officer with reckless driving (Veh. Code, § 2800.2, subd. (a), count 10).
B. Blanco I
The trial court originally sentenced Blanco to 50 years to life plus nine years in state prison. However, this court vacated the sentence and remanded for resentencing because we concluded the true finding on his prior juvenile adjudication was not supported by substantial evidence. (Blanco I, supra, D049359, at pp. 8-13.)
On remand, the court sentenced Blanco to a total term of 20 years 4 months. The sentence included 16-month terms for each of Blanco's convictions for unlawfully taking and driving a vehicle (Veh. Code, § 10851, subd. (a), count 9) and for evading an officer with reckless driving (Veh. Code, § 2800.2, subd. (a), count 10), with each ordered to run consecutive to the principal term of six years for assault with a deadly weapon (§ 245, subd. (a)(2), count 3).
II
ANALYSIS
A. Blanco's Section 654 Argument
Blanco asserts it was improper under section 654 to impose sentences on both counts 9 and 10. He contends execution of the sentence on count 9 should have been stayed, because the offenses charged in counts 9 and 10 constituted an indivisible course of conduct with the single intent and objective of evading arrest by police.
Legal Framework
Section 654, subdivision (a), provides in pertinent part, "[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." Section 654 thus precludes multiple punishments for a single act or for a course of conduct consisting of indivisible acts. (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.) The pivotal consideration in deciding whether a course of criminal conduct is divisible is the intent and objective of the actor. When all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, a defendant may be found to have harbored a single intent and therefore be punished only once for the offenses. (People v. Spirlin (2000) 81 Cal.App.4th 119, 129.)
However, when a defendant harbors "multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct. [Citation.]" (People v. Cleveland (2001) 87 Cal.App.4th 263, 267-268.) "This is particularly so where the offenses are temporally separated in such a way as to afford the defendant opportunity to reflect and to renew his or her intent before committing the next one, thereby aggravating the violation of public security or policy already undertaken. [Citation.]" (People v. Gaio (2000) 81 Cal.App.4th 919, 935.)
"Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. [Citations.] Its findings will not be reversed on appeal if there is any substantial evidence to support them. [Citations.] We review the trial court's determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence. [Citation.]" (People v. Jones, supra, 103 Cal.App.4th at p. 1143.)
Analysis
The evidence, viewed most favorably to respondent, provides support for the trial court's implied determination that Blanco's theft of Pena's car was separate from his subsequent use of the car to evade police with reckless driving. First, the evidence supports a conclusion Blanco took Pena's car for purposes entirely unrelated to his subsequent purpose of avoiding apprehension by police. Blanco took Pena's car shortly after Dame arrived at his apartment to collect her belongings, which supports a conclusion his intent was simply to avoid another confrontation with Dame. Alternatively, the fact that he drove directly to Dame's parents' home (from which he called Dame) supports a conclusion Blanco was seeking their intervention to defuse or reconcile his deteriorating relationship with Dame. Third, the fact that he took the time to collect his handgun before taking Pena's car and driving to Dame family home, where he subsequently hid the gun, could support the conclusion his intent was to remove any evidence that Blanco was violating the proscription against possession of a firearm by a felon. Finally, because there was some evidence that (when he took Pena's car and left) Blanco did not know Dame had called police, a trier of fact could reasonably conclude his intent when he took Pena's car was unrelated to his desire to avoid apprehension.
Second, even assuming Blanco took Pena's car to preempt his detention by police at his apartment, a trier of fact could conclude Blanco's subsequent use of that car was "temporally separated in such a way as to afford the defendant opportunity to reflect and to renew his or her intent before committing the next one...." (People v. Gaio, supra, 81 Cal.App.4th at p. 935), thereby obviating the applicability of section 654. Blanco took Pena's car to drive to Dame's parent's home where he parked, went inside, and spent some extended time there. After police arrived and began to surround the apartment, Blanco slipped outside and (ignoring demands that he surrender) ran back to Pena's car and used it to flee, during which he drove recklessly. The temporal separation between the initial taking and subsequent reckless driving, as well as the numerous opportunities that provided Blanco with the time to reflect and to decide whether to surrender or to renew his intent to escape, provides sufficient evidentiary support for the trial court's conclusion that the initial taking of the vehicle was a separate crime from the subsequent reckless driving to avoid police.
B. Blanco's Abuse of Discretion Argument
Blanco alternatively argues the trial court abused its discretion by imposing consecutive sentences for counts 9 and 10 and sentences for those counts consecutive to the principal term imposed on count 3.
Blanco was sentenced under the three strikes law (§ 667, subds. (b) - (i)). Section 667, subdivision (c)(6), of the three strikes law provides that when "there is a current conviction for more than one felony count not committed on the same occasion, and not arising from the same set of operative facts, the court shall sentence the defendant consecutively on each count pursuant to [this section]." In People v. Lawrence (2000) 24 Cal.4th 219, 233, our Supreme Court construed that provision, stating:
"We read the mandatory consecutive-sentencing provision of the three strikes law as follows: If there are two or more current felony convictions 'not committed on the same occasion,' i.e., not committed within close temporal and spacial proximity of one another, and 'not arising from the same set of operative facts,' i.e., not sharing common acts or criminal conduct that serves to establish the elements of the current felony offenses of which defendant stands convicted, then 'the court shall sentence the defendant consecutively on each count' pursuant to subdivision (c)(6). Conversely, where a sentencing court determines that two or more current felony convictions were either 'committed on the same occasion' or 'aris[e] from the same set of operative facts' as we have construed those terms in [People v. Deloza (1998) 18 Cal.4th 585] and the instant case, consecutive sentencing is not required under the three strikes law, but is permissible in the trial court's sound discretion."
Among the considerations that may animate a court's decision on whether to impose consecutive rather than concurrent terms are whether the crimes occurred at separate times, separate locations, or against entirely separate groups of victims (People v. Lawrence, supra, 24 Cal.4th at pp. 228-229), and whether the crimes and their objectives were predominantly independent of each other or involved separate acts of violence or threats of violence (People v. Deloza, supra, 18 Cal.4th at p. 596, fn. 8).
Here, even assuming the court had discretion to order the terms on counts 9 and 10 concurrent to each other and to the term on count 3, we are unpersuaded that its decision to impose them consecutively was an abuse of discretion. The crimes occurred at separate times: the assault on Dame occurred on September 12, the vehicle theft and reckless driving occurred the following day and were themselves separated by several hours. The crimes also were committed against separate victims: the assault threatened Dame, the vehicle theft victimized Pena, and the reckless driving endangered Officer Rowbotham and numerous bystanders. These factors convince us the trial court did not abuse its discretion by imposing the sentences consecutively.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McINTYRE, J., AARON, J.