Opinion
E052298 Super.Ct.No. FVA1000970
09-30-2011
THE PEOPLE, Plaintiff and Respondent, v. AUSTIN JAMES GARDNER, Defendant and Appellant.
Phillip I. Bronson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Kevin Vienna, Deputy Attorney 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
OPINION
APPEAL from the Superior Court of San Bernardino County. Arthur Harrison, Judge. Affirmed.
Phillip I. Bronson, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Kevin Vienna, Deputy Attorney General, for Plaintiff and Respondent.
Defendant and appellant Austin James Gardner appeals following a guilty plea. He claims the sentence imposed pursuant to his plea agreement violates the prohibition against multiple punishments in Penal Code section 654 (hereinafter "section 654) We affirm.
FACTUAL AND PROCEDURAL HISTORY
Pursuant to a written plea agreement, defendant pled guilty on July 19, 2010, to the following offenses: count 1, driving or taking a vehicle (Pen. Code, § 10851, subd. (a)); count 3, evading an officer (Veh. Code, § 2800.2, subd. (a)); count 4, driving under the influence of alcohol or drugs (Veh. Code, § 23152, subd. (a)); and count 5, being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd (a)). Count 2, receiving a stolen motor vehicle (Pen. Code, § 496d, subd. (a)), was dismissed. The parties stipulated to a sheriff's department report as the factual basis of the plea.
According to the sheriff's department report, patrol officers initiated a traffic stop after sighting a vehicle, driven by defendant, which was traveling on a freeway at 120 miles an hour and drifting from lane to lane. The vehicle exited the freeway at 40 miles an hour, screeching its tires. A female exited the vehicle from the passenger side when it made a brief stop on the side of the road. Officers continued to follow the vehicle as it accelerated away. About a half mile down the road, defendant exited the vehicle from the driver's side, while it was still moving, and ran through a field. The vehicle rolled to a stop. The officers ran after defendant, who hid behind a bush. Defendant was ordered out of the bush at gunpoint.
When asked for identification, defendant provided the officers with paperwork indicating he was on probation. Defendant was talking very fast, could not sit still, and his pupils were dilated. He told the officers he drank beer and snorted methamphetamine at a party. A female, who was too drunk to drive, asked defendant for a ride home from the party; he agreed to take her. He claimed he had been set up; the female told him the vehicle was stolen after the officers initiated the traffic stop. When contacted, the owner of the vehicle said it had been stolen from a movie theater parking lot on June 19, 2010.
In the plea agreement, defendant agreed to a sentence of 16 months in state prison, to be served concurrently with the time imposed for a corresponding probation violation in another case. On August 23, 2010, the court sentenced defendant to concurrent terms of 16 months each on count 1 (vehicle theft) and count 3 (evading an officer). On counts 4 (driving under the influence of alcohol) and 5 (being under the influence of a controlled substance), the court imposed concurrent terms of 63 days in jail.
DISCUSSION
A. TIMELINESS OF THE APPEAL
Preliminarily, we must reject the People's contention that defendant should be required to provide some independent documentation showing his appeal is timely. Citing California Rules of Court, rule 8.308(a), the People contend the record shows defendant's appeal may be untimely and therefore subject to dismissal. According to the People, defendant's appeal was due no later than October 22, 2010. The People suspect defendant's notice of appeal is untimely because (1) the documentation in the record does not clearly show when defendant delivered the notice to prison officials for mailing; (2) defendant signed the notice on the day it was due; and (3) the notice of appeal was not filed until October 27, 2010, even though it was due no later than October 22, 2010. If defendant's notice was late, the People seek dismissal of the appeal.
All further rule references are to the California Rules of Court.
Under the prison delivery rule, "a prisoner's notice of appeal is deemed to have been filed in the office of the appropriate county clerk on the date . . . on which it was delivered to the prison authorities. If the notice of appeal is received by the county clerk following expiration of the 60-day filing period, the prisoner who seeks to pursue his or her appellate rights has the burden of establishing that the notice of appeal was delivered to prison authorities within the 60-day period." (In re Jordan (1992) 4 Cal.4th 116, 130, fn. omitted.)
In addition, rule 8.25(b)(5) provides as follows: "If the clerk receives a document by mail from an inmate . . . after the period for filing the document has expired but the envelope shows that the document was mailed or delivered to custodial officials for mailing within the period for filing the document, the document is deemed timely. The clerk must retain in the case file the envelope in which the document was received."
As required by rule 8.25(b)(5), the record in this case includes a copy of both sides of the envelope defendant used to mail his appeal. Although there is no stamp by the postal service showing when the envelope was received by the post office, a handwritten notation on the back of the envelope includes the date "10/22/10," as well as a handwritten signature. From this notation on the envelope, it is reasonable to infer this is the date defendant delivered his notice of appeal to prison officials for mailing, and in doing so, was relying on the prison delivery rule. Envelopes such as this, which include a date, whether handwritten or otherwise, have long been accepted by the courts as sufficient proof of timeliness without some form of independent proof in every case. If courts were to require independent proof on a case-by-case basis, it would defeat one of the main purposes of the prison delivery rule, as it would place "a substantial administrative burden" on the courts. Accordingly, we reject the People's argument that defendant's appeal is untimely.
B. MULTIPLE PUNISHMENTS
Defendant raises two separate arguments as to why he believes his sentence violates the prohibition against double punishments under section 654. First, defendant contends the driving under the influence offense (count 4) and the offense of being under the influence of a controlled substance (count 5) violate section 654, because these offenses arose out of a single, indivisible transaction. He therefore believes the sentence on one of these offenses should have been stayed under section 654. According to defendant, the offenses are indivisible because being under the influence was simply the means by which he committed the offense of driving under the influence.
Second, defendant argues section 654 precludes punishment for both the offense of driving or taking a vehicle (count 1) and the offense of evading a peace officer (count 3). Defendant believes the term on one of these offenses should have been stayed under section 654, because his attempt to evade the officers was incidental to his objective of continuing to drive the stolen vehicle.
Section 654 provides as follows: "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."
Defendant's arguments are both foreclosed by his plea agreement and rule 4.412, which states as follows: "By agreeing to a specified prison term personally and by counsel, a defendant who is sentenced to that term or a shorter one abandons any claim that a component of the sentence violates section 654's prohibition of double punishment, unless that claim is asserted at the time the agreement is recited on the record." Rule 4.412 applies to a contention that concurrent terms violate section 654. (People v. Valenzuela (1993) 14 Cal.App.4th 837, 841.)
Defendant's plea agreement provides for a specified prison term of 16 months in state prison, and the sentence imposed follows the plea agreement. The imposition of concurrent terms on all counts does not change this result. The transcript of defendant's sentencing hearing indicates there was no objection that the sentence imposed in any way violated section 654. We must therefore reject defendant's claims.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur: RAMIREZ
P. J.
McKINSTER
J.