Opinion
E067001
10-06-2017
THE PEOPLE, Plaintiff and Respondent, v. DANNY FERNANDO FLORES, Defendant and Appellant.
Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF1600345) OPINION APPEAL from the Superior Court of Riverside County. Charles J. Koosed, Judge. Affirmed as modified. Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
FACTUAL AND PROCEDURAL HISTORY
A. PROCEDURAL HISTORY
On October 3, 2016, a jury convicted defendant and appellant Danny Fernando Flores with driving under the influence of a drug under Vehicle Code section 23152, subdivision (e) (count 1); and being under the influence of methamphetamine under Health and Safety Code section 11550, subdivision (a) (count 2).
A lesser included offense to (count 1) the charge of driving while under the influence of a drug resulting in an injury to a person under Vehicle Code section 23153, subdivision (e). --------
On October 11, 2016, the trial court sentenced defendant to 180 days on count 1, and to 365 days on count 2, to run concurrently with the sentence the trial court imposed in another case, case No. RIF1600221. On the same day, defendant filed his timely notice of appeal.
B. FACTUAL HISTORY
On October 31, 2015, defendant turned left at an intersection in front of an oncoming motorcycle and car. The car was able to stop before hitting defendant. The motorcyclist however, crashed into defendant in the intersection.
The motorcyclist lay on the ground while bystanders helped him and tried to keep other vehicles from hitting him. Defendant walked over to the motorcyclist and apologized; he said that he had been falling asleep while driving. Witnesses smelled alcohol on defendant's breath and noticed he was acting abnormally, like he was nervous, excited, or intoxicated.
When police arrived, defendant admitted that he was the driver of the car in the accident. The officer noticed that defendant's eyes were red, watery and bloodshot. Moreover, defendant had a noticeable smell of alcohol on his breath. He was also fidgety and tense. These observations were all indications that defendant had some intoxicant in his system.
DISCUSSION
A. THE TRIAL COURT ERRED BY IMPOSING SEPARATE AND CONCURRENT SENTENCES FOR COUNTS 1 AND 2
Defendant was convicted of both being under the influence of a controlled substance and driving while under the influence of a drug. Defendant contends that the punishment for one of these convictions should be stayed under Penal Code section 654 (section 654) because the underlying conduct for both convictions included the same act: being under the influence of a drug. The People agree with defendant. We agree with the parties and stay the sentence imposed for driving while under the influence (count 1).
Section 654, subdivision (a), states: "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. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other."
Therefore, if driving under the influence of a controlled substance and being under the influence of methamphetamine involve a single punishable act, then section 654 forbids sentencing under both provisions.
Section 654's prohibition against multiple punishments for a single act generally applies in two ways: when a single act or omission violates two statutes (see People v. Corpening (2016) 2 Cal.5th 307, 309 (Corpening); People v. Jones (2012) 54 Cal.4th 350, 352 (Jones)); or when the defendant's crimes emerge from an indivisible course of conduct animated by a single criminal intent or objective (see Neal v. State of California (1960) 55 Cal.2d 11, 19). The threshold inquiry is whether the defendant's crimes were completed by a single punishable act. If so, then the defendant can only be punished once for that act. If not, then the question becomes whether the course of conduct reflects a single or multiple intents or objectives. (Corpening, at p. 311; Jones, at p. 359.)
To determine if multiple convictions are based on a single act, the court examines whether "'"the same exact conduct'" accomplished the actus reus—or act requirement—for each of the relevant crimes." (Corpening, supra, 2 Cal.5th at p. 312, quoting, Jones, supra, 54 Cal.4th at p. 359.) A defendant commits a single physical act for purpose of section 654 if "some action the defendant is charged with having taken separately completes the actus reus for each of the relevant criminal offenses." (Corpening, at p. 313; see also Jones, at pp. 359-360.)
In Corpening, the defendant and his cohorts sought to steal valuable coins from the victim after the victim loaded the coins into a van. While the victim waited in the idling van for his son to come back from the house, the attacker came up to the victim with a gun and ordered him out of the car. As the attacker climbed into the van; the victim tried to stop the attacker. The attacker pointed the gun at the victim and the victim backed off. However, as the attacker again got into the car, the victim lunged toward the attacker again. This time, the attacker put the van into gear and drove away while the victim hung from the steering wheel; the victim eventually fell to the ground. (Corpening, supra, 2 Cal.5th at pp. 309-310.) The Supreme Court explained the robbery of the coins and the carjacking were accomplished by the same forceful taking. Because the acts constituting the forceful taking amounted to a common actus reus for both crimes, the plain language of section 654—an act or omission punishable in multiple ways cannot be punished more than once—compelled a stay of the robbery sentence. (Corpening, at pp. 315-316.)
In support of its decision, the Supreme Court in Corpening relied on its earlier decision in Jones. There, the defendant was sentenced concurrently for three offenses: possession of a firearm by a felon; carrying a readily accessible concealed and unregistered firearm; and carrying an unregistered loaded firearm in public. (Jones, supra, 54 Cal.4th at p. 352.) All three crimes were based on the single act of possessing the firearm. (Id. at p. 353.) The Supreme Court explained that the defendant could only be punished for one of the crimes because possessing a firearm on a single occasion constituted a single act. Thus, section 654 barred multiple punishment. (Jones, at p. 357.) The court reasoned that "'the same exact conduct'" accomplished the actus reus, or the act requirement, for each of the relevant crimes. (Id. at p. 359.) Defendant's possession of one firearm on a specific date completed the actus reus for all three offenses. (Ibid.) Therefore, multiple punishment was improper because there was no distinct or independent actions that could serve as the actus reus for each of the crimes. (Id. at pp. 353, 360.)
Jones and Corpening clarified that, before a trial court evaluates whether a defendant's criminal conduct emerged from a single intent or objective, it must first evaluate whether the conduct consisted of more than a single unlawful act. (Corpening, supra, 2 Cal.5th at p. 310, citing Jones, supra, 54 Cal.4th at pp. 359-360.)
Prior to Corpening and Jones, the courts varied in the definition of a single act. In People v. McGuire (1993) 14 Cal.App.4th 687, the defendant, like defendant in this case, was convicted of, and sentenced for, both driving under the influence of a controlled substance and being under the influence of methamphetamine. (Id. at pp. 695-696.) In determining whether section 654 applied to these crimes, the court found that the crimes arose from a divisible course of conduct that could be based on the defendant's intent and objective. (McGuire, at pp. 698-699, relying on People v. Davalos (1987) 192 Cal.App.3d Supp. 10, 11-12 [reasoning two acts with different objectives are separate and distinct offenses each subject to their own sentence].) The court reasoned that the defendant snorted one line of methamphetamine three hours before driving, and then committed a second a distinct offense when he later drove his car. (McGuire, at pp. 698-699.)
Under Corpening and Jones, however, the reasoning in McGuire is no longer valid. The threshold inquiry now is whether the actus reus of one crime is shared or even subsumed by the other.
In this case, defendant was convicted of driving under the influence of a drug and being under the influence of methamphetamine. While McGuire may have construed these crimes as arising from separate acts under the intent or objective test, Corpening and Jones state that the intent and objectives test should only be applied if the court determines the conduct consisted of more than one act. Here, the conduct of driving while under the influence of a drug wholly subsumed the act of being under the influence of methamphetamine. In fact, the act of being under the influence of a drug is what made defendant's driving illegal. Being under the influence of a drug was the same or shared actus reus for both crimes. Therefore, defendant should not have been sentenced for both crimes; defendant's sentence for the unlawful driving conviction should have been stayed.
DISPOSITION
The judgment is modified to stay the term imposed on count 1 for driving while under the influence (Veh. Code, § 23152, subd. (e)) pursuant to section 654. The superior court clerk is hereby directed to amend the abstract of judgment to reflect this modification, and to forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: RAMIREZ
P. J. SLOUGH
J.