Opinion
B301221
06-23-2020
THE PEOPLE, Plaintiff and Respondent, v. ANDRE JESSE PAYAN, Defendant and Appellant.
David Ross Greifinger, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Scott A. Taryle and Michael Katz, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. KA117937) APPEAL from a judgment of the Superior Court of Los Angeles County, Juan Carlos Dominguez, Judge. Affirmed as modified. David Ross Greifinger, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Scott A. Taryle and Michael Katz, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Defendant Andre Jesse Payan, driving a Toyota Prius that was reported stolen, attempted to evade police in a vehicle pursuit that began in El Monte and ended in Pasadena. Near the end of the pursuit, defendant totaled the Prius by crashing into another car containing a family of three. Following a jury trial, defendant was convicted of one count of driving in willful or wanton disregard for safety of persons or property while fleeing a pursuing peace officer (reckless evading, Veh. Code, § 2800.2), one count of assault with a deadly weapon relating to the final collision (Pen. Code, § 245, subd. (a)(1) ), and one count of possession of methamphetamine for sale (Health & Saf. Code, § 11378). The trial court sentenced him to consecutive terms on each count, with assault with a deadly weapon as the principal count.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant contends his sentence for reckless evading should be stayed under section 654. He asserts that he caused the collision that served as the basis for the assault with a deadly weapon charge while trying to avoid arrest, so it was part of a single course of conduct with the objective of evading arrest. We find substantial evidence supports the trial court's finding that section 654 did not apply.
Defendant and the Attorney General agree that a one-year enhancement imposed under 667.5, subdivision (b) is no longer applicable following amendment to that statute, which took effect on January 1, 2020. We concur, strike the one-year enhancement entered under that statute, and modify the sentence accordingly. The judgment is otherwise affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
On June 29, 2018, the Los Angeles County District Attorney (the People) filed an information alleging that on April 20, 2018, defendant committed the offenses of felony reckless evading (Veh. Code, § 2800.2, count 1); felony driving or taking a vehicle without consent (Veh. Code, § 10851, subd. (a), count 2); felony assault with a deadly weapon, a car (§ 245, subd. (a)(1), count 3); and felony possession of methamphetamine for sale (Health & Saf. Code, § 11378, count 5). The information further alleged that on April 3, 2018, defendant and a codefendant, Jessica Rey Cereceres, committed the offense of felony carjacking (§ 215, subd. (a), count 8). The information further alleged that defendant had a prior strike conviction (§§ 667, subds. (b)-(j), 1170.12), and three prison priors (§ 667.5, subd. (b)). Defendant pled not guilty. Cereceres and the People reached a plea agreement before trial, and the case proceeded to trial against defendant only.
The information does not include counts 4, 6, or 7, which the People did not pursue based on evidence presented at the preliminary hearing.
The following evidence was presented at trial. We focus primarily on the facts relevant to defendant's arguments on appeal, which do not involve the April 3, 2018 carjacking allegations.
A. Evidence presented at trial
E.E. testified that she owned the 2015 black Toyota Prius at issue in this case. She testified that she and her son, M.E., were the only two people with permission to drive it, and M.E. used it most of the time. M.E. testified that he was friends with Jessica Cereceres. He and Cereceres were together on the night of April 5, 2018; she stayed with him overnight. M.E. testified that when he woke up the morning of April 6, Cereceres, his wallet, his cell phone, the Prius keys, and the Prius were gone. M.E. reported the missing items to the police.
We refer to the victims by initials to protect their privacy. (Cal. Rules of Court, Rule 8.90(b)(4).) --------
El Monte Police Department sergeant Gary Gall testified that he was on patrol in a marked police car around 5:00 p.m. on April 20, 2018, when he received information about a stolen black Toyota Prius in the area. Gall saw the Prius in a condominium complex near Lower Azusa Road and Peck Road. He followed the car, and saw it make a turn and then an immediate U-turn, running a red light in the process. Gall called for backup, and pulled over the Prius. Once stopped, the driver, defendant, rolled down the window and asked Gall, "Why are you stopping me? What did I do?" Gall told defendant to turn off the car and place the keys on top of the car.
Defendant rolled up the window and started moving forward at a slow speed, five to 10 miles per hour. Gall got back into his car, activated the lights and siren, and began pursuing defendant as he accelerated the Prius to 50 miles per hour on Lower Azusa Road. Defendant began to drive on the wrong side of the road; cars were swerving to avoid head-on collisions. Defendant ran another red light and entered the northbound 605 freeway. He "began weaving in traffic from the no. 4 all the way to the no. 1 lane." Defendant then entered the space next to the median wall, which was not a travel lane, and accelerated to 70 to 80 miles per hour. Other officers joined the pursuit, including El Monte Police Department officer Cody Cowell and detective Jared Atkinson, both of whom testified at trial.
The pursuit transitioned from the northbound 605 freeway to the westbound 210 freeway. Defendant exited near Mountain Avenue, and drove through a shopping center parking lot at a high rate of speed. After going through a gas station parking lot, defendant drove westbound in the eastbound lanes of Huntington Drive, made additional turns, and ran another red light. Upon reaching cars stopped at an intersection, defendant "drove into the rear of two vehicles," which created enough separation for him to continue forward. Defendant then reentered the westbound 210 freeway.
The El Monte Police Department helicopter joined the pursuit, flown by officer Carl Garlick, who was accompanied by his partner, Jose Barajas. Garlick and Barajas began reporting the Prius's location to ground units. The Prius collided with another car near the Santa Anita exit of the 210 freeway, then exited the 210 freeway near the Rosemead/Michillinda exit, "did a little bit of a loop, and got back on the westbound 210."
The traffic had been "light to moderate" during the pursuit, but in the area where the Prius re-entered the freeway, "traffic started to get much heavier and actually had come to a stop right around Sierra Madre Boulevard." While on the freeway, the Prius had been "changing lanes constantly." As traffic came to a stop, Garlick observed that the Prius "tried to split between the No. 1, 2 lanes" and "collided with a vehicle that was stopped in traffic."
X.H. testified that she was driving a Volkswagen Jetta in the carpool lane on the 210 freeway near the Sierra Madre Boulevard exit. Her husband was in the passenger seat, and their three-month-old son was in the rear left seat. It was rush hour, and traffic was heavy but moving. X.H. testified that she felt a "[l]arge impact," which felt like it happened at a high rate of speed, and the "entire right side" of the car "was swiped." X.H. said a car had attempted to drive between her car and the car in the lane to her right.
On X.H.'s car, the back window was broken, the front passenger window was shattered, the passenger airbag had deployed, and the "whole front bumper was coming off." X.H. testified that her leg was initially "stuck" in the car due to the impact, and her husband's "whole arm was sliced" with "a lot of glass." X.H. suffered spinal issues requiring cortisone shots and treatment by a chiropractor. M.E., the Prius owner's son, testified that when he viewed the Prius after the accident, it was "totaled," with left-side damage and a broken axle.
After hitting X.H.'s car, the "damage to the front end of the Prius" caused the car to roll into the center divider wall and stop. Defendant and his passenger, Jessica Cereceres, got out of the car, ran across the Metro Gold Line tracks in the center divider of the freeway, then ran across all lanes of eastbound traffic. Cowell followed them. Defendant climbed over a fence and went into a residential area. Cereceres was not able to get over the fence, and surrendered to Cowell. Multiple police departments were involved in the pursuit at that point; a Pasadena Police helicopter was observing, and California Highway Patrol was on the scene.
Defendant's flight continued through the residential area, as he climbed over several walls and fences, and attempted to break into one of the houses by trying to open a sliding glass door. Following the El Monte Police helicopter's directions, Gall and Atkinson each went to the residential area. Atkinson spotted defendant, got out of his car, and began chasing defendant on foot. Gall saw defendant jump over a wall and begin to run toward him. Defendant saw Gall and turned to run in the opposite direction, but Atkinson was behind him. Gall and Atkinson took defendant into custody. Garlick, who observed the chase from the air, testified that he was "positive" that the person taken into custody was the driver of the Prius.
In defendant's pocket, Gall found "a clear plastic bag that contained a white crystal substance that resembled methamphetamine and unsealed smaller bags." The smaller bags were one inch by one inch with a ziplock closure. The parties stipulated that laboratory testing revealed the substance to be methamphetamine. Atkinson testified that similar empty bags were found inside the Prius, along with two small digital scales.
E.E. testified that she never gave defendant permission to drive her car. M.E. testified that did not give Cereceres or defendant permission to take or drive the Prius. Defendant did not present any evidence.
B. Verdict and sentence
The jury found defendant guilty of count 1 (reckless evading), count 3 (assault with a deadly weapon), and count 5 (possession of methamphetamine for sale). The jury found defendant not guilty of count 2 (driving or taking a vehicle without consent) and count 8 (carjacking). Defendant stipulated to three prior convictions, including a strike. The court sentenced defendant to 16 years, eight months in prison, calculated as follows: The upper term of four years on count 3, doubled to eight years as a second strike under section 1170.12; eight months each on counts 1 and 5, doubled to one year, four months for each count; five years based on defendant's prior serious felony under section 667, subdivision (a); and one additional year for defendant's prison prior under section 667, subdivision (b), all to be served consecutively. The court noted, "The court imposes consecutive sentences due to the multiple victims involved, the crimes and the objectives were predominantly independent of each other. The defendant was engaged in multiple traffic accidents to avoid police." Defendant timely appealed.
DISCUSSION
Defendant asserts two arguments on appeal. First, he asserts that under section 654, his sentence on count 1, reckless evading, should be stayed. Second, he asserts that the one-year enhancement under section 667.5, subdivision (b), should be stricken. We address each of his contentions.
A. Section 654 does not require that defendant's sentence on count 1 be stayed.
Defendant asserts that the sentence for reckless evading should be stayed under section 654 because he "committed that offense during the same course of criminal conduct in committing assault with a deadly weapon." The Attorney General contends that the sentence does not violate section 654 because defendant had the opportunity to reflect between the offenses, and each offense created a new risk of harm.
Section 654, subdivision (a), provides: "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." "[A]n 'act or omission' may include not only a discrete physical act but also a course of conduct encompassing several acts pursued with a single objective." (People v. Corpening (2016) 2 Cal.5th 307, 311.) Where, as here, a case involves a course of conduct rather than a single act, we "consider whether that course of conduct reflects a single 'intent and objective' or multiple intents and objectives." (Ibid.)
"Whether the defendant maintained multiple criminal objectives is determined from all the circumstances." (People v. Tom (2018) 22 Cal.App.5th 250, 260.) "The defendant's intent and objective present factual questions for the trial court, and its findings will be upheld if supported by substantial evidence." (People v. Andra (2007) 156 Cal.App.4th 638, 640.)
Here, the court stated during sentencing that it imposed consecutive sentences "due to the multiple victims involved, the crimes and the objectives were predominantly independent of each other. The defendant was engaged in multiple traffic accidents to avoid police." Defendant asserts that because his singular objective was to avoid police, he "caused all of the [traffic] accidents to avoid apprehension and arrest and for no other reason." The Attorney General asserts that even if defendant maintained a singular intent to avoid police, he had ample time to consider his choices between offenses, and therefore he had multiple independent objectives. We agree with the Attorney General that substantial evidence supports the trial court's finding that defendants' crimes and objectives were independent of one another. "[M]ultiple crimes are not one transaction where the defendant had a chance to reflect between offenses and each offense created a new risk of harm." (People v. Felix (2001) 92 Cal.App.4th 905, 915.) Thus, "[u]nder section 654, 'a course of conduct divisible in time, although directed to one objective, may give rise to multiple violations and punishment.'" (People v. Gaio (2000) 81 Cal.App.4th 919, 935.) "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." (Ibid.)
The Attorney General cites People v. Jimenez (2019) 32 Cal.App.5th 409 (Jimenez), in which the defendant Jimenez attempted to evade sheriff's deputies in a vehicle pursuit. At one point during the pursuit, "Jimenez drove into the opposing lane of traffic where the patrol SUV was driving. . . . The SUV had to swerve out of the way at the last moment to avoid a head-on collision." (Id. at p. 414.) Jimenez was sentenced for reckless evading, as well as assault on a peace officer for the near head-on collision. He argued on appeal that the reckless evading sentence should be stayed under section 654 because it occurred during the same course of conduct as the assault, and that he had a single intent throughout: to evade the police to avoid arrest. (Id. at pp. 423-424.)
The Court of Appeal held that section 654 did not require the sentence for reckless evading to be stayed. It found that the "evidence was sufficient to support the court's implied finding that Jimenez had two objectives—he was both intending to evade and trying to assault the deputies in the second vehicle." (Jimenez, supra, 32 Cal.App.5th at p. 425.) The Court of Appeal continued, "The trial court also could reasonably have found that Jimenez had time to reflect before committing the assault. Jimenez could have driven on his side of the road or moved rather than driving head-on toward Deputy P.'s vehicle. He chose not to do so, aggravating the severity of the situation. Jimenez's initial efforts trying to evade the first vehicle, and his subsequent assaultive conduct, 'were volitional and calculated, and were separated by periods of time during which reflection was possible.'" (Id. at p. 426.)
Here, defendant's initial efforts to evade police were also temporally separated from the final car accident that disabled the Prius. Defendant began fleeing police in El Monte after Sergeant Gall pulled him over. Reckless evading occurs when a driver attempts "to elude a pursuing peace officer during which time either three or more violations . . . occur, or damage to property occurs." (Veh. Code, § 2800.2, subd. (b).) Defendant committed multiple traffic violations by running red lights and driving on the wrong side of the street toward oncoming traffic, and he first hit two cars when he exited the freeway at Mountain Avenue. Without more, this evidence could have supported a conviction under Vehicle Code section 2800.2.
However, defendant continued to lead police on an extended vehicle pursuit that involved entering and exiting the 210 freeway several more times, driving through additional cities, and causing additional collisions. Finally, defendant crashed into X.H.'s Jetta so hard that he totaled the Prius and caused the axle to break, while damaging X.H.'s car, and causing injury to X.H. and her husband. Substantial evidence supports a finding that defendant had an opportunity to reflect between his initial offense of reckless evading in the early portion of the pursuit, and his later assault with a deadly weapon upon X.H. toward the end of the pursuit. Substantial evidence also supports a finding that each offense created a new risk of harm, because the collision that served as the basis of the assault claim was much more severe than defendant's earlier actions, such as running red lights and causing relatively minor collisions that did not disable the Prius.
Defendant asserts that this case is not similar to Jimenez because "there is no hint that [defendant] harbored any animosity or anger towards" X.H., unlike Jimenez, who directed his assault at the sheriff's deputies he was attempting to evade. Defendant contends that he "had no choice but to drive between the vehicles to evade arrest. He otherwise would have been stuck in traffic and caught." We disagree. After defendant had already attempted to evade police by driving recklessly, running red lights, and causing several collisions, defendant did indeed have a choice about what to do as the traffic on the freeway slowed and became increasingly dense. What he chose to do was willfully crash into X.H.'s car with force serious enough to total the Prius and injure X.H. and her husband. "[T]he purpose of section 654 is to ensure that a defendant's punishment will be commensurate with his culpability." (People v. Correa (2012) 54 Cal.4th 331, 341.) The evidence supported a finding that the assault with a deadly weapon was not simply incidental to defendant's attempt to evade police. We therefore find that substantial evidence supports the trial court's conclusion that section 654 does not require the sentence on count 1 to be stayed. B. The one-year sentence enhancement imposed under section 667.5 , subdivision (b) must be stricken.
Defendant admitted three prison priors: two for driving or taking a vehicle without consent (Veh. Code, § 10851, subd. (a)), and one for death or serious bodily injury proximately caused by flight from a pursuing peace officer. (Veh. Code, § 2800.3.) When defendant was sentenced on July 8, 2019, the court imposed a one-year prison prior enhancement under section 667.5, subdivision (b).
Effective January 1, 2020, section 667.5, subdivision (b) was amended to limit one-year prior prison term enhancements to cases in which the prior was for "a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code." The change in section 667.5, subdivision (b) is retroactive to cases that are not yet final. (People v. Winn (2020) 44 Cal.App.5th 859, 872 (Winn).) Defendant asserts that the one-year enhancement imposed here should be stricken under the amended statute. The Attorney General agrees.
Because defendant's prior prison term was not served for a sexually violent offense, his section 667.5, subdivision (b) enhancement is unauthorized under the amended statute. We therefore strike the enhancement under section 667.5, subdivision (b), and modify the judgment accordingly. (See Winn, supra, 44 Cal.App.5th at pp. 872-873 [where the trial court imposed the maximum sentence, the matter need not be remanded for resentencing after striking a section 667.5, subd. (b) enhancement].)
DISPOSITION
The one-year prison term imposed under Penal Code section 667.5, subdivision (b) is stricken. Upon issuance of the remittitur, the trial court shall correct the abstract of judgment to reflect this modification and send an amended abstract of judgment to the Department of Corrections and Rehabilitation. The judgment is affirmed as modified.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J. We concur: MANELLA, P. J. WILLHITE, J.