Opinion
A149862
12-14-2018
THE PEOPLE, Plaintiff and Respondent, v. LAONNA MARIE ROCHELL, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 51604479)
A jury found appellant Laonna Marie Rochell (defendant) guilty of assault upon a peace officer with force likely to produce great bodily injury (Pen. Code, § 245, subd. (c); count 1), resisting an executive officer (§ 69; counts 2 and 3), and unlawful driving or taking a vehicle without consent (Veh. Code, § 10851; count 4). The trial court sentenced defendant to an aggregate four-year prison term on counts 1 through 4; suspended execution of the sentence; placed her on probation for three years; and imposed a one-year county jail term for counts 1 through 4 and a consecutive one-year county jail term for a separate count defendant pled to. The county jail terms were to be deemed served upon completion of a residential drug treatment program.
Further statutory references are to the Penal Code unless otherwise indicated.
Defendant pled no contest to a misdemeanor count for possession of a controlled substance (Health & Saf. Code, § 11377; count 5), and the parties agreed not to discuss this count at trial.
In this appeal, defendant raises three issues for our review. First, she argues that her conviction on count 3 must be reversed because the trial court failed to instruct the jury, sua sponte, on the lesser included offense of simple assault (§ 240). Second, she argues that her conviction of violating Vehicle Code section 10851 must be reversed due to ineffective assistance of counsel. Last, she contends that remand is mandated because the trial court erroneously believed it lacked discretion to suspend imposition of a sentence when it placed her on probation.
We agree with defendant that remand is warranted to allow the trial court to exercise its discretion regarding the imposition of a sentence in this matter. In all other respects, the judgment is affirmed.
I. FACTUAL AND PROCEDURAL BACKGROUND
Jenny Iles bought a new Jeep Cherokee in June 2015. On January 22, 2016, around 10:00 p.m., she went to a restaurant in Pittsburg, parked her car outside, locked it and took her keys with her. Around midnight, when Iles went to get her car, she discovered that her car keys were not in her purse and her car was not where she had parked it. Recalling that she had placed her keys in her purse and hung her purse on the back of her chair while she was inside the restaurant, Iles called the police and reported her Jeep had been stolen.
Around 3:30 p.m. on January 23, 2016, Officer Dominic Gonzales of the City of Pittsburg Police Department was dispatched to a Walmart, situated in a large shopping center, in response to a GPS signal coming from Iles's stolen vehicle. At the time Officer Gonzales was dispatched, he was driving a marked patrol car and was in full police uniform. Once Officer Gonzales arrived in the Walmart parking lot, he began searching for the Jeep, and observed it parked in a stall. The Jeep was parked in a stall between cars parked on its left and right side. There were multiple vehicles parked in front of the Jeep as well. Officer Gonzales closed the distance between his car and the Jeep, and while he could not see into the vehicle due to its tinting, he observed the Jeep's reverse lights and brake lights were illuminated, indicating a driver was inside. Officer Gonzales strategically positioned his vehicle about 10 to 12 feet behind the Jeep to prevent it from leaving, turned on his overhead emergency lights and got out of his police car. Officer Gonzales then took up a position about half a foot just behind his driver's side front tire such that his car was between himself and the Jeep. From this position, Officer Gonzales drew his gun and ordered the occupants inside the Jeep to put their hands up.
About five to ten seconds after his command, Officer Gonzales heard the Jeep's engine begin to rev. The Jeep then accelerated backwards in the direction of Officer Gonzales's car, causing Officer Gonzales to jump from his location behind his patrol car to avoid being injured. The Jeep continued driving in reverse until it struck Officer Gonzales's patrol car. The force of the contact between the cars pushed the patrol car backward some three feet. After crashing into Officer Gonzales's car, the driver of the Jeep (later identified as defendant) immediately shifted the car and began to drive forward. Officer Pearman—who arrived on the scene after Officer Gonzales got out of his car—rammed the driver's side of the Jeep with his patrol car. The Jeep however, continued to accelerate forward and ultimately collided into two cars parked in front of it.
Officer Gonzales ran toward the Jeep, yelling along with Officer Pearman and a third officer for the occupants to stop, put the car in park, and put their hands up. The driver of the Jeep failed to heed the officers' commands and backed into Officer Gonzales's patrol car and then immediately accelerated forward and to the right, crashing into another parked car. At this point, the Jeep appeared disabled and did not move. Officer Pearman and another officer approached the driver's side door. Officer Pearman broke the driver's side window, unlocked the car door, and apprehended defendant, who was in the driver's seat, and her companion.
II. DISCUSSION
A. The trial court did not err by not instructing the jury on simple assault (§ 240) as a lesser included offense of resisting an executive officer (§ 69).
Defendant was convicted on count 3 of resisting an executive officer, Officer Pearman, in violation of section 69. Citing People v. Brown (2016) 245 Cal.App.4th 140 (Brown), defendant argues simple assault in violation of section 240 was a lesser included offense of section 69 and the trial court committed prejudicial error by not instructing the jury on it. (See Brown, at p. 153.)
The People do not dispute section 240 was a lesser included offense of count 3 in this case. Instead, the dispute between the parties on this count centers on whether substantial evidence supported a section 240 instruction and whether prejudice ensued from the failure to give the instruction. We find, in this case, the alleged instructional error did not result in prejudice.
" '[T]he failure to instruct sua sponte on a lesser included offense in a noncapital case is, at most, an error of California law alone, and is thus subject only to state standards of reversibility.' [Citation.] Under the state standard, 'such misdirection of the jury is not subject to reversal unless an examination of the entire record establishes a reasonable probability that the error affected the outcome.' [Citations.] 'The Supreme Court has emphasized "that a 'probability' in this context does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility." ' " (People v. Campbell (2015) 233 Cal.App.4th 148, 165.)
Defendant contends the jury "could have reasonably found Officer Pearman's ramming to be excessive force, but also [could have] found [defendant's] subsequent maneuvering [of] the vehicle while Officer Pearman stood nearby to be likewise excessive," thereby supporting a conviction on assault as a lesser. We disagree. The evidence showed that defendant drove the Jeep in reverse some 10 to 12 feet and rammed into Officer Gonzales's patrol car while Officer Gonzales was standing directly beside it. The Jeep struck Officer Gonzales's patrol car, a Ford Explorer, with such force that it moved a distance of approximately three feet, requiring Officer Gonzales to jump out of the path of the vehicle to avoid being hit. Defendant then shifted the Jeep into drive to go forward. At this point, Officer Pearman rammed the driver's side of the Jeep with his own patrol car. Nevertheless, the Jeep continued undeterred, accelerating forward into cars parked in front of it. The Jeep then reversed again and rammed into Officer Gonzales's patrol car a second time, before accelerating forward and to the right, hitting a parked car where it finally came to rest. On this record, given the danger defendant posed to Officer Gonzales and potentially to the multiple other citizens in the vicinity, we find it is not reasonably probable that a jury would have found Officer Pearman's use of force under the circumstances was unreasonable.
B. Defendant did not suffer from ineffective assistance of counsel in connection with count 4 (Veh . Code , § 10851).
Defendant challenges her Vehicle Code section 10851 conviction, alleging she received ineffective assistance because her trial attorney failed to object to a portion of the prosecutor's argument during which he referred to "Rule 362." More specifically, the prosecutor stated: "Rule 362 talks about recently stolen property. What it says, and you will get the instruction, is that the additional evidence that's required in addition to the fact that it's recently stolen, that additional supporting evidence need only be the slightest in terms of weight. It doesn't even need on itself to be enough to prove guilty. [¶] So as long as you have possession, as long as you have recently stolen, and as long as you have one just slightest additional piece of evidence, just that in itself, the law provides that is beyond a reasonable doubt. [¶] So here you have her straight possession of the stolen vehicle. You have the facts that the vehicle was taken just hours before, just the night prior. And here you have the defendant's actions on what she did when she saw the officers come in. [¶] Her reaction, her attempt at flight, her concealment—attempted concealment of her identity, that's just that slight piece of evidence. That's all you need. That's all the law says you need in order to convict the defendant of Count 4." (Sic.) Considered in isolation, the prosecutor's statement arguably constituted a misstatement of law to the extent it equated proof beyond a reasonable doubt with proof of possession plus a slight piece of additional evidence.
In order to demonstrate ineffective assistance of counsel, the following elements must be established: First, defense counsel's performance was objectively deficient, and second, the defendant was prejudiced as a result of counsel's deficient performance. (In re Crew (2011) 52 Cal.4th 126, 150 (Crew); Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) This test is disjunctive, and if a defendant fails to show either element, the ineffective assistance claim fails. (Crew, at p. 150; Strickland, at p. 697.) Defendant has failed to establish the first element.
Generally, "where counsel's trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel's acts or omissions." (People v. Weaver (2001) 26 Cal.4th 876, 926.) "[D]eciding whether to object is inherently tactical, and the failure to object will rarely establish ineffective assistance." (People v. Maury (2003) 30 Cal.4th 342, 419.) In this case, defense counsel's silence during the portion of the prosecutor's argument that defendant complains about is unexplained, and defendant fails to show no conceivable reason exists for trial counsel's failure to object or ask for an admonishment or curative instruction. For example, defense counsel might have reasonably believed an objection would do more harm than good, by calling jurors' attention to the topic of the prosecutor's argument. (See, e.g., United States v. Molina (9th Cir. 1991) 934 F.2d 1440, 1448 ["From a strategic perspective, for example, many trial lawyers refrain from objecting during closing argument to all but the most egregious misstatements by opposing counsel on the theory that the jury may construe their objections to be a sign of desperation or hyper-technicality"].) "Judicial scrutiny of counsel's performance must be highly deferential. . . . [A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.' " (Strickland, supra, 466 U.S. at p. 689; People v. Bunyard (1988) 45 Cal.3d 1189, 1215 [same].) Defendant has not overcome this presumption.
C. The trial court had the discretion to place defendant on probation by suspending imposition of the sentence.
Prior to imposing the sentence, the trial court discussed with the prosecutor and defense counsel whether it had any discretion to suspend imposition of the sentence for the section 245, subdivision (c) count under section 1170, subdivision (h)(3). The trial court expressed its belief that section 1170, subdivision (h)(3) required imposition of a prison sentence, though the court would still retain discretion to stay execution of that sentence and place defendant on probation. The trial court then went on to actually impose a sentence and suspend its execution to place defendant on probation.
Section 1170, subdivision (h)(3) provides, in pertinent part: "[W]here the defendant (A) has a prior or current felony conviction for a serious felony described in subdivision (c) of Section 1192.7[,] . . . an executed sentence for a felony punishable pursuant to this subdivision shall be served in the state prison." Section 1192.7, subdivision (c)(31) lists assault on a peace officer in violation of section 245 as a "serious felony." --------
Defendant now argues the trial court incorrectly believed section 1170, subdivision (h)(3) required imposition of a sentence on the section 245, subdivision (c) offense. As the People essentially concede, the trial court's belief that it lacked the discretion to suspend imposition of the sentence pursuant to section 1170, subdivision (h)(3) was an incorrect understanding of the law. (§ 1203.1, subd. (a) ["The court, or judge thereof, in the order granting probation, may suspend the imposing or the execution of the sentence and may direct that the suspension may continue for a period of time not exceeding the maximum possible term of the sentence, except as hereinafter set forth, and upon those terms and conditions as it shall determine."]; People v. Fandinola (2013) 221 Cal.App.4th 1415, 1422 ["section 1170, subdivision (h), comes into play only after probation has been denied"].)
"[A] ruling otherwise within the trial court's power will nonetheless be set aside where it appears from the record that in issuing the ruling the court failed to exercise the discretion vested in it by law." (People v. Penoli (1996) 46 Cal.App.4th 298, 302.) "Failure to exercise a discretion conferred and compelled by law constitutes a denial of a fair hearing and a deprivation of fundamental procedural rights, and thus requires reversal." (Id. at p. 306.) " 'Where . . . a sentence choice is based on an erroneous understanding of the law, the matter must be remanded for an informed determination.' [Citation.] However, '[i]f the record shows that the trial court would not have exercised its discretion even if it believed it could do so, then remand would be an idle act and is not required.' " (People v. Gamble (2008) 164 Cal.App.4th 891, 901.)
In this case, the misunderstanding warrants reversal because, even though the trial court stated its belief that the prison sentence it imposed would supply "tremendous incentive [for defendant] to succeed [on probation]," the record does not clearly indicate the trial court would not have exercised its discretion differently if it believed it could do so. We express no opinion about how the trial court should exercise its discretion on remand.
III. DISPOSITION
The matter is remanded for a new sentencing hearing at which the trial court shall have the opportunity to exercise its discretion to place defendant on probation by suspending imposition of the sentence. If the trial court chooses not to exercise its discretion in this manner, the previously imposed sentence will stand. The judgment is affirmed in all other respects.
/s/_________
Jenkins, J. We concur: /s/_________
Siggins, P. J. /s/_________
Fujisaki, J.