Opinion
C084963
05-15-2018
THE PEOPLE, Plaintiff and Respondent, v. CODY ALLEN BOWLES, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 17CF00782)
Defendant Cody Allen Bowles stole T.G.'s truck and later ran over T.G.'s stepson, severely injuring him. Charged with carjacking, assault with a deadly weapon, and hit-and-run driving resulting in death or serious bodily injury, defendant filed a Penal Code section 995 motion to dismiss the carjacking charge, claiming the magistrate did not have probable cause to hold him over for that alleged offense. However, before the trial court ruled on the section 995 motion, defendant pleaded no contest to all the charges and enhancement allegations with the understanding that the trial court would issue a certificate of probable cause allowing him to appeal the section 995 issue. The trial court granted defendant's request for a certificate of probable cause and sentenced him to 13 years in state prison.
Undesignated statutory references are to the Penal Code. --------
Defendant now contends (1) the trial court should have granted his section 995 motion to dismiss the carjacking charge, because there was no evidence defendant took the truck by force or fear, and (2) the trial court erred in sentencing him to consecutive terms, because section 654 and due process preclude multiple punishments under these circumstances.
We conclude defendant's no contest plea precludes him from seeking review of the issues raised in his section 995 motion, but because defendant entered his plea with the understanding that he would be able to assert such issues on appeal, we will reverse the judgment and remand the matter to permit him to withdraw his plea if he so desires. We further conclude the trial court did not err in sentencing defendant to consecutive terms.
BACKGROUND
In February 2017, the City of Oroville was under a mandatory evacuation order due to the spillway failure at the Oroville Dam. T.G. left his truck running in his driveway while he loaded personal items into the truck before evacuating. While T.G. was standing outside by his front door, he heard the truck rev up as if it had slipped into gear. T.G. looked over and saw the truck backing down the driveway. Running to the truck, T.G. realized someone, later identified as defendant, was driving the truck.
T.G. yelled at defendant to get out of his truck. In order to get the truck out of the driveway, defendant had to pull forward at an angle. T.G. testified that defendant drove the truck towards him and he jumped out of the way to avoid getting hit. After correcting the angle, defendant successfully backed T.G.'s truck out of the driveway and proceeded in reverse down the street.
T.G. and his stepson hopped into another car and followed defendant. During the pursuit defendant went to a 7-Eleven store, picked up a companion, was confronted by T.G., and struck other vehicles and objects as he continued to flee in the truck. Defendant eventually stopped when he reached a dead end. T.G. approached and asked defendant to "[j]ust leave the truck." The stepson also approached the truck, telling defendant they only wanted the truck and that they did not care about him. According to T.G., defendant swerved the truck toward the stepson, ran over him, and drove off. The stepson sustained serious injuries.
Defendant later said he took the truck in order to evacuate the area. He denied knowing he was being followed, and claimed he did not see the stepson.
At the close of the preliminary hearing, defense counsel argued the prosecutor failed to meet his burden to show probable cause to hold defendant for the carjacking offense because no evidence showed defendant took the truck by force or fear. After considering arguments from both counsel, the trial court held defendant to answer on all the charges and enhancement allegations.
Defendant subsequently filed a section 995 motion to dismiss the carjacking charge, once again arguing there was no probable cause to hold him to answer for that alleged offense. The motion was set for hearing on May 17, 2017.
A week before the hearing, defendant agreed to a plea deal. As a result, the People never responded to the section 995 motion. Defendant agreed to plead no contest to carjacking (§ 215, subd. (a)), assault with a deadly weapon (§ 245, subd. (a)(1)), and hit-and-run driving resulting in death or serious bodily injury (Veh. Code, § 20001, subd. (b)(2)). He also admitted that he personally inflicted great bodily injury during the assault offense, and that he had served a prior prison term. The trial court agreed with counsel that it would include defendant's section 995 motion as part of the appellate record. Although the People did not respond to the motion and the trial court did not rule on it, the understanding was that the issues raised in the motion would be the issues raised on appeal. The trial court agreed to vacate the hearing on the section 995 motion and issue a certificate of probable cause once defendant filed his appeal.
The trial court sentenced defendant to an aggregate term of 13 years in state prison, consisting of the following: the upper term of nine years for carjacking; consecutive terms of one year each (one-third the mid-term) for assault with a deadly weapon, hit-and-run, and the great bodily injury enhancement; and one year for the prior prison term. Defendant appealed. His request for a certificate of probable cause, which the trial court granted, was based on whether there was sufficient evidence presented at the preliminary hearing to support a holding order for carjacking.
DISCUSSION
I
Defendant contends the trial court should have granted his section 995 motion to dismiss the carjacking charge. The People counter that defendant is precluded from appealing the issue because he never secured a ruling on his section 995 motion, and his no contest plea precludes review of the sufficiency of the evidence at his preliminary hearing.
A defendant asserting a challenge by means of a section 995 motion must make an effort to have the trial court rule on the challenge. (People v. Obie (1974) 41 Cal.App.3d 744, 750; disapproved on another ground in People v. Rollo (1977) 20 Cal.3d 109, 120, fn. 4.) As the California Supreme Court has explained, it would be wholly inappropriate to reverse a trial court's judgment for an error it did not commit. (People v. Lilienthal (1978) 22 Cal.3d 891, 896.)
Defendant argues in his appellant's reply brief that all parties understood the trial court to have denied the section 995 motion. But even if there had been an actual or implicit denial of the section 995 motion, defendant's no contest plea would preclude review of the denial. (People v. Truman (1992) 6 Cal.App.4th 1816, 1820-1821 (Truman); People v. Padfield (1982) 136 Cal.App.3d 218, 227 [a defendant who admits the sufficiency of the evidence by pleading no contest is not entitled to appellate review of a denial of a section 995 motion claiming lack of probable cause].) This is so even if a trial court makes a promise to the contrary. (Truman, at pp. 1820-1821.)
Nevertheless, defendant entered his plea with the understanding that he would be allowed to raise on appeal the challenge he asserted in his section 995 motion. The People argue defendant should not be permitted to withdraw his plea because (1) the no- contest plea prevents defendant from raising the conditions of the plea on appeal, (2) defendant's certificate of probable cause does not mention the validity of his plea, and (3) defendant did not move to withdraw his plea in the trial court. While those are good points, rigid adherence to those principles strikes us as unfair given the circumstances of the plea agreement. In addition, rigid adherence to such principles would not advance judicial economy, because it would invite a separate claim of ineffective assistance.
We conclude defendant should be permitted the opportunity to withdraw his plea if he wishes to do so. (See Truman, supra, 6 Cal.App.4th at p. 1821, citing People v. Bonwit (1985) 173 Cal.App.3d 828, 833.) Although defendant indicated he wished to withdraw only his plea to the carjacking charge, the disposition on the other counts was not independent from that of the carjacking charge. The parties entered into one plea agreement which resolved all the counts of the information. A disposition reversing the entire judgment and returning the parties to the status quo is fair to the prosecution as well as defendant. (People v. Miller (1983) 33 Cal.3d 545, 555 (Miller).) We will reverse the judgment and remand for further proceedings.
II
Although we will reverse the judgment to permit defendant to withdraw his plea, we address defendant's section 654 argument in the event he decides not to withdraw his plea and the trial court reinstates the original judgment. (Miller, supra, 33 Cal.3d at p. 556 [the defendant is not foreclosed from electing to be bound by the judgment on remand].)
Defendant contends section 654 prohibits consecutive sentences for the assault-with-a-deadly-weapon and hit-and-run offenses because they were part of a continuous course of conduct with the same objective for which he was already sentenced on the carjacking charge. We disagree.
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." (§ 654, subd. (a).) The statute does not prohibit multiple convictions for the same conduct, only multiple punishments. (People v. Monarrez (1998) 66 Cal.App.4th 710, 713.) "In such a case, the proper procedure is to stay execution of sentence on one of the offenses." (Ibid.)
"Whether a defendant may be subjected to multiple punishment under section 654 requires a two-step inquiry, because the statutory reference to an '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.) If different crimes were completed by a " 'single physical act,' " a defendant may not be punished more than once for that act. (Ibid.) Only if a case "involves more than a single act -- i.e., a course of conduct -- do [courts] then consider whether that course of conduct reflects a single ' "intent and objective" ' or multiple intents and objectives." (Ibid.) "Whether a defendant will be found to have committed a single physical act for purposes of section 654 depends on whether some action the defendant is charged with having taken separately completes the actus reus for each of the relevant criminal offenses." (Id. at p. 313.)
" 'Except for strict liability offenses, every crime has two components: (1) an act or omission, sometimes called the actus reus; and (2) a necessary mental state, sometimes called the mens rea.' " (People v. Ross (2008) 162 Cal.App.4th 1184, 1187.) The felonious taking of another's motor vehicle by force is the actus reus for the carjacking offense. (See People v. Corpening, supra, 2 Cal.5th at p. 314; § 215, subd. (a); CALCRIM No. 1650.) Committing an act with a deadly weapon that by its nature would directly and probably result in the application of force with the present ability to apply force is the actus reus for the assault with a deadly weapon offense. (§ 245, subd. (a)(1); see CALCRIM No. 875.) For the hit-and run offense, the actus reus is the failure to perform a legal duty following a vehicle accident that caused injury. (Veh. Code, § 20001, subd. (b)(2); see CALCRIM No. 2140.)
In this case, the evidence at the preliminary hearing showed that defendant drove the truck at T.G. in order to reposition it to back it down the driveway. Defendant did that while T.G. ran to the truck and yelled at defendant to get out of his truck. T.G. testified that he had to jump out of the way, and that defendant had "tried to run [him] over." The evidence showed that the truck was large; T.G. described it as a "dually," meaning that it had six wheels rather than the standard four. Driving a large truck toward an individual standing nearby can constitute taking the vehicle by force for purposes of the carjacking offense. Thus, the actus reus for that offense was complete when defendant drove the truck toward T.G. as T.G. tried to stop defendant from taking the vehicle.
The actus reus for the assault-with-a-deadly-weapon offense occurred later when defendant ran the stepson over with the truck. That was distinct from the already completed carjacking offense. However, hitting the stepson with the truck did not complete the actus reus for the hit-and-run offense. Had defendant hit the stepson and stopped to provide aid and information, he would not have committed the hit-and-run offense. It was only after defendant struck the stepson and then left the scene of the accident that the actus reus for the hit-and-run offense was complete. Because defendant committed divisible acts with distinct objectives, section 654 does not bar punishment for all three offenses.
But even if defendant's actions were considered part of a course of conduct, defendant's consecutive sentences were still proper under section 654. "[I]f a series of acts are committed within a period of time during which reflection was possible (People v. Surdi (1995) 35 Cal.App.4th 685, 689), section 654 does not apply." (People v. Kelly (2016) 245 Cal.App.4th 1119, 1136.) "Under section 654, 'a course of conduct divisible in time, although directed to one objective, may give rise to multiple violations and punishment. [Citations.]' [Citations.] 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. [Citation.]" (People v. Gaio (2000) 81 Cal.App.4th 919, 935.)
Here, defendant drove the truck toward T.G., then backed the truck down the driveway. Defendant drove to a 7-Eleven store to pick up a companion, collided with vehicles and objects, and fled to a dead-end. Both T.G. and the stepson asked defendant to leave the truck. As the stepson approached the truck, defendant swerved toward him, ran him over, and drove away without stopping. Defendant had many opportunities to reflect and to renew his intent during the events. Defendant's section 654 contention lacks merit.
DISPOSITION
The judgment is reversed and the matter is remanded to permit defendant to withdraw his plea within 30 days after the finality of this opinion. If defendant does not bring a timely motion to withdraw his plea, the trial court is directed to reinstate the original judgment. (Miller, supra, 33 Cal.3d at p. 556.)
/S/_________
MAURO, J. We concur: /S/_________
BLEASE, Acting P. J. /S/_________
BUTZ, J.