Opinion
C098587
10-18-2024
THE PEOPLE, Plaintiff and Respondent, v. DOMINIK OSHAY CASH, Defendant and Appellant.
NOT TO BE PUBLISHED
(Super. Ct. Nos. CRF2100109, CRF2100109MH)
EARL, P. J.
A jury convicted defendant Dominik Oshay Cash of multiple charges following a high-speed chase that ended when Cash ran a red light and struck a pickup truck, killing the driver. Cash was sentenced to an indeterminate term of 15 years to life for second degree murder and a determinate term of six years on the remaining charges.
On appeal, Cash contends the trial court violated the prohibition on multiple punishments in Penal Code section 654 by imposing a separate sentence for: (1) reckless evasion of police, which Cash argues stemmed from the same course of conduct as the murder conviction; and (2) possession of ammunition by a felon where Cash was also convicted of possession of a firearm by a felon and the ammunition was loaded in the firearm. The People agree, as do we, that the sentence on the ammunition conviction was erroneous. We otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
At about 11:08 p.m. on January 16, 2021, California Highway Patrol (CHP) Officer Paul Vue and his partner observed a silver sedan driving at a high rate of speed in the opposite direction on Route 70 in Butte County. Vue also noticed one of the sedan's headlights was out. Vue made a U-turn to pull behind the sedan. The sedan pulled to the right shoulder and started slowing down. Vue activated his forward-facing red lights and pulled up behind the sedan to effect a traffic stop. The sedan immediately made a U-turn and fled. Vue pursued the sedan and activated his lights and the siren on his patrol car. Vue's partner advised the CHP communications center in Chico that a vehicle had failed to yield. The sedan proceeded at a high rate of speed, and Vue reached speeds of 135 miles per hour, but the sedan still pulled away. During the pursuit, Vue observed the sedan twice cross over the double-yellow line to pass a car, and at one point, it nearly collided head-on with another car. Vue's partner relayed the information to dispatch that there was a near head-on collision, and they were advised for safety reasons to break off the high-speed pursuit and continue after the sedan at a normal speed in case the vehicle stopped somewhere.
CHP Officer Keith Fuentes heard a radio call about the vehicle pursuit at the Yuba-Sutter CHP office. Fuentes drove with his partner from Yuba City to Marysville to assist. They were informed the speeding sedan had a broken headlight and was traveling 100 miles per hour. Fuentes saw a sedan with a single headlight coming towards them on Route 70. After the sedan passed them, it crossed over the double-yellow line and drove in the wrong direction. Fuentes made a three-point turn to get behind the sedan. Due to traffic, Fuentes could not safely travel fast enough to catch up. When Fuentes was able to accelerate, he activated his lights and siren, but the sedan continued to drive faster, and Fuentes lost sight of it.
At around 11:16 p.m., CHP Officer Chad Rishel and his partner were positioned to place a spike strip on Route 70 in Yuba County across from the Marysville Cemetery, where they believed the pursuit was headed. Rishel saw the sedan approaching at a rate he estimated to be in excess of 100 miles per hour and deployed the spike strip. The sedan's right-side tires passed over the strip. The vehicle continued at a slightly lower speed.
CHP Sergeant Craig Howard took over the pursuit from other CHP officers as the sedan reached Marysville. Howard pursued the sedan, activating his lights and siren.
Traveling at an estimated rate of 100 miles per hour, the sedan ran a red light and collided broadside with a pickup truck making a left turn in the intersection. The lone female driver of the truck was killed. Cash jumped out of the sedan and ran. After a lengthy foot chase, Cash was arrested on the roof of a building.
Officers checked the sedan and found an unregistered semiautomatic handgun with six rounds in the magazine and one in the chamber.
In February 2023, an amended information charged Cash with murder (Pen. Code, § 187, subd. (a); count 1), evasion of police causing death (Veh. Code, § 2800.3, subd. (b); count 2), reckless evasion of police (Veh. Code, § 2800.2; count 3), hit and run causing death or serious injury (Veh. Code, § 20001, subd. (b)(2); count 4), possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1); count 5), possession of ammunition by a felon (Pen. Code, § 30305, subd. (a)(1); count 6), two counts of misdemeanor resisting a peace officer (Pen. Code, § 148, subd. (a)(1); counts 7 &8); driving with a suspended or revoked license (Veh. Code, § 14601.1, subd. (a); count 9), and misdemeanor vandalism (Pen. Code, § 594, subd. (b)(2)(A); count 10.) The amended information further alleged numerous aggravating factors under California Rules of Court, rule 4.421.
A jury found Cash guilty on all counts. Cash agreed to a bench trial on the aggravating factors, all of which the trial court found true.
On May 10, 2023, the trial court sentenced Cash to state prison on the felonies as follows: 15 years to life on count 1; the upper term of 10 years on count 2 (stayed under Pen. Code, § 654); eight months consecutive on count 3; four years consecutive on count 4; eight months consecutive on count 5; and eight months consecutive on count 6. On the misdemeanors, the trial court imposed concurrent sentences of one year on count 7, one year on count 8, six months on count 9, and one year on count 10. The total aggregate term imposed was 15 years to life, plus six years. Cash filed a timely appeal.
DISCUSSION
Cash contends that the trial court violated Penal Code section 654 by imposing (1) an eight-month sentence on count 3, reckless evasion of police and (2) an eight-month sentence on count 6. We disagree as to count 3 but agree as to count 6.
Undesignated statutory references are to the Penal Code.
Section 654, subdivision (a), provides that "[a]n act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision." "Section 654 precludes multiple punishments for a single act or indivisible course of conduct." (People v. Hester (2000) 22 Cal.4th 290, 294; see also People v. Tarris (2009) 180 Cal.App.4th 612, 626.)" '" 'Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.'"' (People v. Capistrano (2014) 59 Cal.4th 830, 885, overruled on other grounds in People v. Hardy (2018) 5 Cal.5th 56, 104.)" (People v. Jimenez (2019) 32 Cal.App.5th 409, 424.)
However, "a course of conduct divisible in time, although directed to one objective, may give rise to multiple violations and punishment." (People v. Beamon (1973) 8 Cal.3d 625, 639, fn. 11; see also People v. Louie (2012) 203 Cal.App.4th 388, 399.) The proximity in time between the offenses is not necessarily determinative of whether multiple punishments are prohibited. (People v. Jackson (2016) 1 Cal.5th 269, 354; People v. Trotter (1992) 7 Cal.App.4th 363, 366-368.) Accordingly, to determine whether criminal offenses may be temporally divisible, courts consider whether the defendant was afforded "opportunity to reflect and to renew his or her intent before committing the next [offense]." (People v. Gaio (2000) 81 Cal.App.4th 919, 935; see also People v. Lopez (2011) 198 Cal.App.4th 698, 717 (Lopez I) [" 'multiple 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. Kelly (2016) 245 Cal.App.4th 1119, 1136 ["[I]f a series of acts are committed within a period of time during which reflection was possible [citation], section 654 does not apply"].)
Whether the defendant engaged in separate crimes involving separate objectives, or an indivisible course of conduct pursuant to a single objective, is a question of fact for the trial court. (See People v. Latten (2021) 63 Cal.App.5th 574, 577.) If the trial court makes no express findings on the issue, as apparently occurred here for both counts 3 and 6, "a finding that the crimes were divisible is implicit in the judgment and must be upheld if supported by substantial evidence." (Lopez I, supra, 198 Cal.App.4th at p. 717.) The trial court's findings of separate intents are reviewed" 'in a light most favorable to the judgment,'" meaning we" 'presume in support of the court's conclusion the existence of every fact the trier of fact could reasonably deduce from the evidence.'" (People v. Andra (2007) 156 Cal.App.4th 638, 640-641.)
We begin with Cash's contention that the sentence imposed on count 3, reckless evasion of police, violates section 654. Cash asserts that "[b]ecause the murder conviction stemmed directly from [his] reckless evasion of the police, the punishment for count three should have been stayed along with the punishment for count two [evasion of police involving death]." According to Cash, "[w]hen a suspect evades the police and in so doing, suffers an accident, the law does not countenance separate punishments for the evasion and any criminal offense that stems from the accident." We understand Cash to argue that he had a single objective in counts 1 and 3, i.e., to evade the police, and therefore cannot be punished separately for count 3 under section 654. The People assert that "even if [Cash] maintained a singular intent to recklessly evade the police, he had ample time to consider his choices between the offenses resulting in [the victim's] death, and therefore he had multiple independent objectives." We agree with the People.
The People cite People v. Jimenez, supra, 32 Cal.App.5th 409, where the defendant attempted to evade deputies in pursuit in separate vehicles. At one point in the pursuit, the defendant "drove into the opposing lane of traffic where the patrol SUV was driving.... The SUV had to swerve out the way at the last moment to avoid a head-on collision." (Id. at p. 414.) The defendant was sentenced for reckless evasion, in addition to assault with a deadly weapon on a police officer for the near collision. (Id. at pp. 413, 415, 417.) The defendant argued on appeal that the sentence on reckless evasion 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 police and avoid arrest. (Jimenez, at pp. 423-424.)
The appellate court held that section 654 did not require staying the sentence for reckless evasion. The court found that the "evidence was sufficient to support the court's implied finding that [the defendant] had two objectives - he was both intending to evade and trying to assault the deputies in the second vehicle." (People v. Jimenez, supra, 32 Cal.App.5th at p. 425.) The appellate court continued: "The trial court also could reasonably have found that [the defendant] had time to reflect before committing the assault. [The defendant] could have driven on his side of the road or moved rather than driving head on toward [the deputy's] vehicle. [The defendant] chose not to do so, aggravating the severity of the situation. [The defendant's] initial efforts 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.)
Cash relies on a subsequent decision: In re L.J. (2021) 72 Cal.App.5th 37. In that case, the appellate court held the punishment for evading a police officer should have been stayed, as that count was based on the same course of conduct as the two assault counts. (Id. at pp. 42, 44.) The court concluded the evidence did not support a finding that "the minor's assaults on the officers were based on different intents and objectives than the minor's overall purpose of trying to evade the police officers." (Id. at p. 44.) The minor attempted to drive between three police vehicles after being trapped on a deadend street. (Ibid.) The court reasoned that the low speed of the minor's vehicle as he drove between three police vehicles, striking them largely on the sides of the minor's vehicle and not head-on, "indicates the minor was trying to get past the police vehicles rather than targeting them." (Ibid.) The appellate court further noted that one officer admitted the minor veered to avoid striking a police vehicle, and there was no significant damage to the police vehicles. (Ibid.) Given the minor's youth, the assaults reflected a "clumsy and ill-advised" attempt to escape rather injure the officers or damage their vehicles. (Ibid.)
The appellate court contrasted the facts with People v. Jimenez, where the defendant fleeing one police vehicle drove towards another coming in the opposite direction. (In re L.J., supra, 72 Cal.App.5th at p. 44; People v. Jiminez, supra, 32 Cal.App.5th at pp. 413-414.) The In re L.J. court noted the minor did not drive into oncoming traffic and attempted to avoid striking a police vehicle. (In re L.J., at p. 45.) Also, the time between when police trapped the minor's car in a dead-end street and when the minor "took off was very brief." (Ibid.)
The factual parallels between either People v. Jimenez or In re L.J. and this case are tenuous. There is no evidence Cash targeted the pickup truck nor was the pursuit very brief. Nonetheless, accepting that Cash maintained a single objective to evade police throughout the pursuit that ended in a fatal collision, Cash was afforded multiple opportunities to reflect and choose whether to continue, especially near the end of the chase when Cash entered Marysville. On that basis, section 654 does not apply to count 3. (People v. Gaio, supra, 81 Cal.App.4th at p. 935.) The pursuit began when Cash fled from Officer Vue, who observed Cash driving at high rate of speed, and then making multiple U-turns and crossing a double-yellow line into oncoming traffic to avoid a traffic stop. At that point, the crime of reckless evasion was complete. (Veh. Code, § 2800.2.) Cash could have reflected and ended the pursuit but chose to commit another offense. Thus, a similar cycle was repeated with Officer Fuentes, affording Cash another opportunity to reflect and choose to end or continue to try to evade law enforcement. When Officer Rishel deployed the spike strip, Cash was afforded an additional opportunity to reflect and renew or abandon his intent to attempt to evade the CHP. At each of these stages, Cash's actions posed a danger to the public. Cash created a new and even greater risk of harm when he sped at 100 miles per hour into Marysville, and Sergeant Howard took up the chase with lights and siren activated. Cash could have chosen to end the pursuit at this point, given the manifest danger of driving at high speed on city streets. Instead, he elected to continue until he ran a red light and struck the victim's vehicle, killing her.
We conclude substantial evidence supports a finding that section 654 does not apply, given that the offenses were temporally divisible because Cash was afforded the opportunity to reflect at multiple points between his initial act of reckless evasion and the murder that concluded the pursuit. Thus, section 654 does not apply to count 3, reckless evasion, because Cash was punished for count 1, murder.
As the parties agree, the circumstances are different regarding count 5, unlawful possession of a firearm, and count 6, unlawful possession of ammunition, where the ammunition was loaded in the firearm. Here, the trial court imposed consecutive sentences of eight months each on counts 5 and 6. At sentencing, the court did not discuss section 654 or staying the sentence on count 6. To be sure, the defense did not object to a consecutive sentence on count 6. However, the general principle that a claim is waived by failing to object below does not apply to questions regarding the applicability of section 654. (People v. Hester, supra, 22 Cal.4th at p. 295; People v. Lopez (2004) 119 Cal.App.4th 132, 138 (Lopez II).)
In Lopez, the court said: "While there may be instances when multiple punishment is lawful for possession of a firearm and ammunition, the instant case is not one of them. Where, as here, all of the ammunition is loaded into the firearm, an 'indivisible course of conduct' is present and section 654 precludes multiple punishment." (Lopez II, supra, 119 Cal.App.4th at p. 138, accord People v. Broadbent (2020) 47 Cal.App.5th 917, 922.) Because in this instance the only ammunition found was loaded in the firearm, section 654 applies to bar multiple punishment for counts 5 and 6.
However, the parties disagree on the remedy. Cash asserts a full resentencing under People v. Buycks (2018) 5 Cal.5th 857 is required. The People simply request this court stay the sentence on count 6. We agree with Cash. "[W]hen part of a sentence is stricken on review, on remand for resentencing 'a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances.'" (Id. at p. 893; see also People v. Burns (1984) 158 Cal.App.3d 1178, 1183-1184 [where staying a consecutive sentence results in "direct and calculable" decrease in the sentence, remand for resentencing should be ordered for the trial court to reconsider its entire sentencing scheme].) "A full resentencing may involve the trial court's revisiting such decisions as the selection of a principal term, whether to stay a sentence, whether to impose an upper, middle, or lower term, and whether to impose concurrent or consecutive sentences." (People v. Jones (2022) 79 Cal.App.5th 37, 46, citing People v. Valenzuela (2019) 7 Cal.5th, 415, 424-425.) The process will require the trial court to apply "the law in effect at the time of that resentencing." (People v. Walker (2021) 67 Cal.App.5th 198, 205.)
DISPOSITION
The matter is remanded for full resentencing, including selection, imposition, and stay of sentence on count 6. The superior court is directed to prepare an amended abstract of judgment that correctly reflects all components of the new sentence and forward a certified copy to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.
We concur: ROBIE, J., RENNER, J.