Summary
In People v. Hooks (Nov. 14, 2011, F061192) [nonpub. opn.]) (Hooks I), we affirmed the trial court's imposition of consecutive prison terms based upon appellant's convictions for resisting a peace officer and possession of marijuana in a custodial facility.
Summary of this case from People v. HooksOpinion
F061192 Super. Ct. No. 09CM8571
11-14-2011
THE PEOPLE, Plaintiff and Respondent, v. MELVIN HOOKS, Defendant and Appellant.
Laura P. Gordon, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and J. Robert Jibson, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
THE COURT
Before Gomes, Acting P.J., Dawson, J., and Kane, J.
APPEAL from a judgment of the Superior Court of Kings County. Donna Tarter, Judge.
Laura P. Gordon, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and J. Robert Jibson, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted appellant, Melvin Hooks, of resisting a peace officer, resulting in serious bodily injury (Pen. Code, § 148.10, subd. (a); count 1) and possession of marijuana in prison (§ 4573.8; count 2). In a separate proceeding, appellant admitted two "strike" allegations. The court imposed two consecutive 25-years-to-life terms, to run consecutive to the term appellant was serving at the time of the instant offenses.
All statutory references are to the Penal Code.
We use the term "strike" as a synonym for "prior felony conviction" within the meaning of the "three strikes" law (§§ 667, subds. (b)-(i); 1170.12), i.e., a prior felony conviction or juvenile adjudication that subjects a defendant to the increased punishment specified in the three strikes law.
On appeal, appellant contends the imposition of sentence on both of the instant offenses violated the section 654 proscription of multiple punishment and, in the alternative, that the court abused its discretion in imposing consecutive sentences. We affirm.
FACTS
Because appellant does not challenge the sufficiency of the evidence supporting the instant convictions, we set forth the facts of the instant offenses in the light most favorable to the judgment.
At approximately 8:10 a.m. on August 5, 2008, Correctional Officers Joel Lucas and Kathy Bonilla were on duty at Avenal State Prison when Officer Lucas received word that prisoners in Housing Unit 230 (the unit) were to leave the unit and go into the prison yard, and that as the inmates exited the unit, officers were to check them for proof of identification and conduct patdown searches of inmates chosen at random. Shortly thereafter, as appellant was about to exit the unit and enter the yard, Officer Bonilla saw that he was carrying two lunch bags. Appellant handed the lunch bags to Officer Bonilla. She looked inside and saw that they contained only food, at which point she told appellant to turn around so that she could conduct a search of appellant's person.
Appellant was initially cooperative as Officer Bonilla held his collar with one hand and patted the outside of his clothing with the other, but subsequently he failed to comply with Officer Bonilla's order that he stop moving his arms. Officer Bonilla called to Officer Lucas for assistance and as he approached, appellant started to run to his left. Officer Lucas stopped appellant, who then tried to run to his right. Officer Lucas wrapped his arms around appellant, who continued to try to run. Officer Lucas lost his balance, and he, appellant and Officer Bonilla, who still had hold of appellant's collar, fell to the ground. Officer Bonilla landed on top of appellant, who continued to struggle and try to get away.
At some point--either as appellant fell or shortly after he was on the ground--with his left hand appellant tossed an object toward the "grill gate," just inside the unit. As Officer Lucas went to retrieve the object, a plastic tube approximately five inches long, other prison staff came to Officer Bonilla's aid and, with their assistance, she was able to handcuff appellant.
Inside the plastic container were multiple bindles containing a total 8.8 grams of marijuana.
In falling to the ground, Officer Lucas broke his front teeth and Officer Bonilla suffered an injury to her left knee. She subsequently underwent surgery, but she continued to suffer pain and swelling, she was unable to run, and she was forced to retire.
DISCUSSION
Section 654Appellant contends the imposition of sentence on counts 1 and 2 violated section 654 because both counts arose from a single, indivisible course of conduct. We disagree.
Section 654, subdivision (a) provides, in relevant 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." Thus, under the plain language of the statute, multiple punishment may not be imposed for a single "act or omission." (§ 654, subd. (a).) In addition, however, section 654 prohibits multiple punishment for multiple acts which comprise an "indivisible course of conduct." (People v. Hester (2000) 22 Cal.4th 290, 294.)
A course of conduct is "indivisible" if the defendant acts with "a single intent and objective." (In re Jose P. (2003) 106 Cal.App.4th 458, 469.) "If, on the other hand, defendant harbored 'multiple criminal objectives,' which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, 'even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.' [Citation.]" (People v. Harrison (1989) 48 Cal.3d 321, 335.) Separate objectives may be found 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 (Britt).)
"The question of whether the defendant held multiple criminal objectives is one of fact for the trial court, and, if supported by any substantial evidence, its finding will be upheld on appeal. [Citations.]" (People v. Herrera (1999) 70 Cal.App.4th 1456, 1466.) The trial court "is vested with broad latitude in making its determination. [Citations.]" (People v. Jones (2002) 103 Cal.App.4th 1139, 1143 (Jones):)The court's findings may be either express or implied from the court's ruling (People v. McCoy (1992) 9 Cal.App.4th 1578, 1585), and our review of those findings is made "in the light most favorable to the respondent and [we] presume the existence of every fact the trial court could reasonably deduce from the evidence" (Jones, supra, 103 Cal.App.4th at p. 1143).
Appellant argues that his course of conduct in committing the instant offenses was indivisible for section 654 purposes because he committed both offenses in order to achieve a single objective, viz. "continued possession of the marijuana." He bases this contention in large part on People v. Perry (2007) 154 Cal.App.4th 1521 (Perry).
In Perry, a car owner returned to his vehicle to find the defendant inside it. The defendant emerged from the car holding the car's stereo and brandishing a screwdriver or ice pick, and then ran off, only to be apprehended a short time later. The defendant was convicted of robbery and vehicular burglary. The appellate court held the imposition of sentence on both offenses violated section 654, reasoning that appellant had the same objective in committing both offenses: to steal the victim's car stereo. (Perry, supra, 154 Cal.App.4th at p. 1527.) The court acknowledged that "It is reasonable to conclude that appellant also wanted to evade capture," but, the court stated, "escaping was merely incidental to, or the means of completing the accomplishment of the objective of taking the stereo. Accordingly, it cannot be said that appellant acted with multiple independent objectives in committing the burglary and the robbery." (Ibid.)Appellant suggests, in a similar vein, that his act of resisting Officers Lucas and Bonilla was merely incidental to his objective of possessing the marijuana he later attempted to discard.
Perry, however, is inapposite. The Perry court noted, "The application of Penal Code section 654 appears somewhat inconsistent in cases in which property is taken in a burglary and ensuing efforts to thwart the theft are met with violence, forceful resistance, or threats of violence. There nonetheless appears to be a general distinction between cases addressing convictions of burglary and robbery and cases addressing burglary and assault convictions." (Perry, supra, 154 Cal.App.4th at p. 1526.) Thus, for example, in People v. Guzman (1996) 45 Cal.App.4th 1023, the court held section 654 barred punishment for both burglary, in which a motorcycle was taken from a garage, and robbery, in which the defendants used force against the pursuing victim who was attempting to stop the culprits. In People v. Vidaurri (1980) 103 Cal.App.3d 450 (Vidaurri), on the other hand, it was held that multiple punishment was permissible for burglary, in which goods were stolen from a store, and numerous assaults on innocent bystanders and store employees who were attempting to prevent the defendant from getting away with the goods he had stolen.
The distinction, the court explained, arose out of "the difference between the intent necessarily reflected in convictions of robbery and assault." (Perry, supra, 154 Cal.App.4th at p. 1526.) "Assault reflects an intent to perform an act that, by its nature, will probably and directly result in the application of physical force to another person. [Citation.] Robbery, while involving the use of force or fear, reflects an intent to deprive the victim of property. Accordingly, a conviction of assault committed during an escape with property taken during a burglary reflects, in essence, an intent to apply, attempt to apply, or threaten to apply force to a person, rather [than] an intent to steal property. The objective of such an assault generally will be to deter, interrupt or put a stop to a pursuit or other effort to capture the defendant and any property taken during the burglary. However, if property is taken during a burglary and a robbery pertaining to the same property is committed during the escape, the objective is still essentially to steal the property." (Ibid.)
Thus Perry involved two crimes--robbery and burglary--for which the intent was the same: to commit theft. Here by contrast, neither offense is theft-related and appellant's objective in possessing marijuana was not the same as his objective in resisting a peace officer. His objective in committing the former offense was to possess marijuana, whereas his objective in committing the section 148.10 violation, which is an assaultive offense similar to the assaults in Vidaurri and the other assault cases discussed in Perry, in which it was held section 654 did not preclude multiple punishment, was to "deter, interrupt or put a stop to" the discovery of the contraband. (Perry, supra, 154 Cal.App.4th at p. 1526.)
The instant case is akin to Vidaurri. There, as indicated above, the defendant committed numerous assaults in an attempt to evade capture after committing a burglary in which he stole goods from a store. The appellate court, while specifically declining to adopt a rule that "an escape is never part of one continuous transaction which includes the principal offense" (Vidaurri, supra, 103 Cal.App.3d at p. 464), held that "the burglary and subsequent assaults were not part of one continuous, indivisible course of conduct" because "the assaults were committed in response to the unforeseen circumstance--the approach of the [store] security guards." (Id. at pp. 465-466).
Here too, appellant, while committing one offense--possession of marijuana in prison--committed a second, assaultive offense in response to an unforeseen circumstance: the search of his person being conducted in response to the directive that prison staff conduct searches of randomly chosen inmates. As in Vidaurri, the commission of the instant offenses did not constitute an indivisible course of conduct.
Appellant suggests that in committing both offenses he acted with the single criminal intent to possess marijuana because he was in possession of the contraband at the same time he was committing the section 148.10 violation. We disagree. As indicated above, criminal objectives may be separate even if they exist simultaneously. (Britt, supra, 32 Cal.4th at p. 952.) Here, as demonstrated above, substantial evidence supports the court's conclusion that appellant acted with separate criminal intents in committing the instant offenses. Therefore, the court did not violate section 654 in imposing sentence on both offenses.
Imposition of Consecutive Sentences
Alternatively, appellant argues that the court abused its discretion in imposing consecutive sentences on counts 1 and 2. We disagree.
Under the three strikes law, the court must impose a consecutive sentence for each current offense "not committed on the same occasion, and not arising from the same set of operative facts ...." (§ 667, subd. (c)(6), (c)(7).) If the current offenses were committed on the same occasion, or arose from the same operative facts, then the court has the discretion to sentence concurrently or consecutively. (People v. Deloza (1998) 18 Cal.4th 585, 595-600.) Accordingly, where a trial court has such discretion, we review the imposition of consecutive sentences for abuse of discretion.
We assume without deciding, and the parties appear to agree, that the instant offenses were committed on the same occasion and/or arose from the same set of operative facts, and that therefore the imposition of consecutive sentences was not mandatory under the three strikes law.
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"In [conducting that review], we are guided by two fundamental precepts. First, '"[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review."' [Citations.] Second, a '"decision will not be reversed merely because reasonable people might disagree. 'An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.'"' [Citations.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (People v. Carmony (2004) 33 Cal.4th 367, 376-377.)
California Rules of Court, rule 4.425(a)(1) provides that the criteria affecting the court's decision to impose consecutive, rather than concurrent sentences include the following: "The crimes and their objectives were predominantly independent of each other."
In explaining its decision to impose consecutive sentences the court stated: "In determining whether the Court shall impose consecutive or concurrent sentencing, the Court is of the opinion that their objectives were independent of each other. Specifically the possession of the marijuana occurred prior to the officers even making contact with [appellant], and it was at that time when the officers did make contact with [appellant], that [appellant] made the decision to resist their directives. Therefore, the court will impose consecutive sentencing."
The instant offenses constituted separate criminal acts committed, as we have already explained, with different criminal intents. Appellant possessed marijuana as he was exiting the unit, before he was directed to submit to a search of his person. Thus, as the trial court indicated, appellant had already committed the count 2 offense when, with a different criminal intent, he embarked on the course of conduct that constituted the count 1 offense. On this record, we find support for the conclusion that the instant offenses and their objectives were "predominantly independent of each other" within the meaning of California Rules of Court, rule 4.425(a)(1). Therefore, under the principles of appellate review summarized above, the court did not abuse its discretion in imposing consecutive sentences.
DISPOSITION
The judgment is affirmed.