Opinion
D072503
04-04-2018
THE PEOPLE, Plaintiff and Respondent, v. BENITO GUADAGNI, Defendant and Appellant.
Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Michael Pulos and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent. Summer Stephan, District Attorney, Mark A. Amador and Linh Lam, Chief Deputy District Attorneys, and Vanessa C. Gerard, Deputy District Attorney, for the office of the District Attorney, as Amicus Curiae on behalf of 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCE359275) APPEAL from a judgment of the Superior Court of San Diego County, Patricia Cookson, Judge. Affirmed and remanded with directions. Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Michael Pulos and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent. Summer Stephan, District Attorney, Mark A. Amador and Linh Lam, Chief Deputy District Attorneys, and Vanessa C. Gerard, Deputy District Attorney, for the office of the District Attorney, as Amicus Curiae on behalf of Plaintiff and Respondent.
A jury convicted Benito Guadagni of carjacking (Pen. Code, § 215, subd. (a); count 1), assault with a semi-automatic firearm (§ 245, subd. (b); count 2), robbery (§ 211; count 3), and evading arrest with reckless driving (Veh. Code, § 2800.2, subd. (a); count 4). As to counts 1, 2 and 3, the jury found true allegations that Guadagni personally used a firearm within the meaning of sections 12022.5, subdivision (a) and 12022.53, subdivision (b). The trial court sentenced him to the midterm of five years on count 1 with a consecutive 10-year enhancement for the section 12022.53, subdivision (b) gun use allegation, and a consecutive eight-month term on count 4, for a total determinate term of 15 years eight months. The court imposed and stayed under section 654 the sentences and enhancements on counts 2 and 3.
Undesignated statutory references are to the Penal Code. --------
Guadagni contends the court erred by imposing consecutive sentences for his count 1 carjacking and count 4 evading arrest convictions because the count 4 conviction "arose from the same criminal intent" as the carjacking. He asks that his sentence for evading arrest be stayed under section 654. Guadagni further contends, and the People concede, that in view of Senate Bill No. 620, his case must be remanded to the superior court to permit it to exercise its discretion under section 1385 and decide whether to strike or dismiss one or more of the section 12022.5, subdivision (a) and section 12022.53, subdivision (b) firearm enhancements. We remand the matter and direct the trial court to conduct a new sentencing hearing so as to exercise its discretion in that limited respect. We otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In March 2016, Kyle Horn, who had a precious metal-selling business, arranged via text messages to purchase scrap gold from Kristopher Sweis. They met at a Spring Valley fast food restaurant for the transaction. Sweis, who appeared sweaty, nervous and possibly under the influence of drugs, showed Horn a few of the items, which Horn quickly determined were fake. Horn left the restaurant with Sweis following. Sweis then asked Horn for a ride home. Horn declined, telling him it was late and he did not want to be robbed, but Horn gave him five dollars for a cab ride. Horn started to walk toward his truck when a man whom he identified at trial as Guadagni approached and hit him across his neck with a pistol, throwing him to the ground. Guadagni shoved a gun in Horn's face and demanded all of his possessions; Horn gave him his cell phone, truck keys and wallet, which contained $400 in cash. Guadagni entered Horn's truck and left.
A deputy sheriff on patrol saw the truck speeding and pursued it in his vehicle; another deputy joined the pursuit after he had been dispatched to the robbery and spotted the stolen truck. The truck stopped, but sped away after the deputy sheriffs began exiting their vehicles. A third officer, a supervising sergeant, heard the radio traffic and positioned his vehicle to intercept the truck; he did so and pursued the truck, which was going in excess of 90 miles per hour at times and sped through several intersections, running a red light and stop sign. After losing the truck, the sergeant found it parked on the side of the road, running but abandoned. One of the deputies eventually detained Guadagni after he saw him coming out of some brush along a nearby road about a block from the abandoned truck.
Horn identified Guadagni in a curbside lineup. Horn also found a black semi-automatic firearm on the passenger floorboard of his truck, and his phone, which was in pieces. A records check revealed the firearm had been stolen. On searching Guadagni, a deputy found $393 in cash in his pocket.
A witness to the carjacking and robbery, V.C., noticed about five minutes before the crimes that Guadagni and a woman were parked in a sedan acting "weird." Moments later, V.C. looked over and watched as Guadagni moved to the fast food restaurant parking lot. V.C. then saw Guadagni lunge at and punch Horn, who was on the ground, then point what appeared to be a gun at Horn. V.C. drove over and began to honk his horn. V.C. left his car and saw Guadagni get in the car with Horn trying to grab onto it. Horn then left and Guadagni drove off in the car.
Cellular phones recovered from Guadagni, Guadagni's wife, and Sweis showed that they had communicated with one another before and after the offenses.
DISCUSSION
I. The Trial Court Did Not Err by Imposing Consecutive Sentences on the Count 1
Carjacking and the Count 4 Evading Arrest Convictions
During Guadagni's sentencing hearing, the People asked the court to impose the sentence on the count 4 evading arrest offense consecutively to the remaining counts, arguing that while the offenses were close in time, the evading arrest was a separate offense that took place after the carjacking and involved extremely dangerous behavior. The court did so, stating: "Count 4, which is evading a peace officer by reckless driving is not barred under the [section] 654 analysis. The court had the opportunity of making it concurrent versus . . . consecutive, so I do agree with [the prosecutor] that your driving was very reckless, and the court is selecting under [California Rules of Court,] rule 4.425[(a)(3)], that evading an officer with reckless driving was committed at a different time and place. Indicating that it was not a single period of abhorrent behavior. So the court is going to select one-third the midterm of eight months, and the midterm being two years, for a total term to state prison of 15 years, eight months."
Guadagni contends the trial court erred by failing to stay under section 654 the sentences on his count 2 conviction for carjacking and the count 4 conviction for evading arrest by reckless driving. He maintains the evidence shows he drove recklessly to escape from the scene of his carjacking, which he characterizes as "nothing more than a robbery of a car where the intent is to temporarily deprive the victim of his car." Pointing to the principle that a robbery is not completed until the robber has attained a place of temporary safety, Guadagni thus argues his act of evading the police was part of an indivisible course of conduct with the carjacking in that taking the truck necessarily required driving it away at a high rate of speed. In making these arguments, Guadagni seeks to distinguish this court's opinion in People v. Rodriguez (2015) 235 Cal.App.4th 1000, in which a panel of this court upheld a trial court's decision under section 654 to not stay execution of a defendant's sentence for evading arrest with reckless driving, a crime that took place after the defendant robbed a bank. (Id. at pp. 1003, 1006-1007.) As Guadagni points out, the waiver doctrine does not preclude him from raising this claim for the first time on appeal. (People v. Brents (2012) 53 Cal.4th 599, 618; People v. Perez (1979) 23 Cal.3d 545, 559-550, fn. 3; Rodriguez, at p. 1004, fn. 2.) A. Legal Principles
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. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other." The section bars imposition of multiple punishments where one act or an indivisible course of conduct violates more than one statute. (People v. Correa (2012) 54 Cal.4th 331, 336-337, 340-341; People v. Perez, supra, 23 Cal.3d at p. 551.) The purpose of this protection is to ensure that the defendant's punishment is commensurate with his criminal culpability. (People v. Capistrano (2014) 59 Cal.4th 830, 886.)
"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. [Citations.] We first consider if the different crimes were completed by a 'single physical act.' [Citation.] If so, the defendant may not be punished more than once for that act. Only if we conclude that the case involves more than a single act—i.e., a course of conduct—do we then consider whether that course of conduct reflects a single 'intent and objective' or multiple intents and objectives. [Citations.] At step one, courts examine the facts of the case to determine whether multiple convictions are based upon a single physical act. [Citation.] When those facts are undisputed . . . the application of section 654 raises a question of law we review de novo." (People v. Corpening (2016) 2 Cal.5th 307, 311-312.) If the pertinent facts are in dispute, "[i]ntent and objective are factual questions for the trial court, which must find evidence to support the existence of a separate intent and objective for each sentenced offense." (People v. Jackson (2016) 1 Cal.5th 269, 354.) The court's implicit or express determination in that respect will be upheld on appeal if supported by substantial evidence. (People v. Capistrano, supra, 59 Cal.4th at p. 886 & fn. 14 [appellate court may affirm the trial court's ruling, if supported by substantial evidence, on any valid ground]; People v. Rodriguez, supra, 235 Cal.App.4th at p. 1005.)
In People v. Rodriguez, supra, 235 Cal.App.4th 1000, the defendant entered a bank and demanded money from tellers, then left the building and entered the back of a waiting vehicle. (Id. at p. 1003.) Police eventually stopped the vehicle and detained the driver and another person, but Rodriguez climbed into the driver's seat and drove off, where he travelled at high speeds, made unsafe and abrupt lane changes, and honked at other cars. (Ibid.) He continued driving over several different highways until the vehicle became inoperative. (Ibid.) We found substantial evidence supported the trial court's decision that the defendant had two distinct objectives in committing the bank robbery and then evading the police, as "[t]he trial court could have reasonably found that the objective of the robbery was to obtain money from the bank, while the objective of the evading arrest by reckless driving was to avoid being caught by the police." (Id. at p. 1006.) Such a conclusion, this court held, was consistent with the principle that section 654 applies "where a defendant commits another crime as 'the means of perpetrating the crime,' " as in a case when the defendant robs a victim by first knocking him out, then taking his valuables. (Ibid.) We reasoned that unlike in that situation, "Rodriguez's act in evading arrest . . . was not the method by which he obtained the bank's money. That is demonstrated by the fact that Rodriguez could have attained the objective of the robbery (obtaining the money) without evading arrest, if the police had not given chase. . . . [S]ince a defendant does not evade arrest as a means of perpetrating a robbery, a trial court may reasonably find that a defendant who commits a robbery and evades arrest within the meaning of Vehicle Code section 2800.2, subdivision (a) acts with multiple objectives." (Rodriguez, 235 Cal.App.4th at p. 1006.)
Additionally, in Rodriguez this court rejected the defendant's contention that the evading arrest sentence should have been stayed because his act of evading was merely incidental to his objective in committing the robbery; that is, under the so called "escape rule," the robbery was not complete at the time he committed the evading offense since he had not reached a place of temporary safety. (Rodriguez, supra, 235 Cal.App.4th at p. 1007.) We explained that the purpose of the escape rule was to measure a robbery's duration so as to determine whether a killing or some other act had occurred in its commission. (Ibid.) This court held that "whether an evading arrest crime occurred during the commission of a robbery is not determinative of whether section 654 applies. That is because it is well established that a defendant may harbor 'separate and simultaneous intents' in committing two or more crimes, for purposes of section 654." (Ibid.) Since determining whether section 654 applied did not turn on whether an act occurred in the commission of a crime but instead on whether a defendant entertained multiple criminal objectives, we agreed with other courts that had declined to apply the escape rule in determining the operation of section 654. (Ibid.) Thus, we held the court did not err by not staying execution of the defendant's evading arrest sentence under section 654. (Id. at p. 1008.) B. Analysis
We conclude the principles expressed in Rodriguez, supra, 235 Cal.App.4th 1000 apply here with regard to Guadagni's carjacking, and the trial court did not err by implicitly finding that Guadagni had two distinct objectives and intents in committing the carjacking and then evading police.
" ' " 'Carjacking' is the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence, or from the person or immediate presence of a passenger of the motor vehicle, against his or her will and with the intent to either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession, accomplished by means of force or fear." ' [Citations.] The completed offense of carjacking requires 'asportation or movement of the motor vehicle.' [Citation.] Carjacking is thus distinct from ordinary automobile theft because it is a crime accomplished by fear or force. . . . [C]arjacking is a crime of violence, distinct from robbery, and not merely a violation of the victims' property interest in their motor vehicle." (People v. Capistrano, supra, 59 Cal.4th at pp. 886-887.) The crime of evading an officer with reckless driving is committed when "a person flees or attempts to elude a pursuing peace officer . . . and the pursued vehicle is driven in a willful or wanton disregard for the safety of persons or property." (Veh. Code, § 2800.2, subd. (a); see People v. Leonard (2017) 15 Cal.App.5th 275, 279.)
Guadagni does not argue his conduct in committing these offenses was a single act; he concedes he engaged in a "criminal course of conduct" in taking the truck and fleeing in it. Further, the relevant facts are undisputed: Guadagni struck Horn and pointed a gun at Horn while demanding his possessions; took Horn's wallet, phone and truck keys; then left in the truck, after which he drove well over the speed limit and through intersections to avoid the officers chasing him in their vehicles. The forceful taking of a vehicle on a particular occasion is a single physical act under section 654 (People v. Corpening, supra, 2 Cal.5th at p. 313) and is separate from the act of driving recklessly to avoid being caught by police. Under these circumstances, Guadagni's carjacking crime was complete once he moved Horn's truck; when he later sped and drove through intersections while being pursued by police, he committed the independent crime of evading an officer with reckless driving.
We reject Guadagni's assertion in reply that we should distinguish Rodriguez on grounds a carjacking, unlike a robbery, requires that the vehicle be driven away. He argues a person committing a carjacking will necessarily speed away, as Guadagni was found to be doing when police first spotted him. But that is not always the case; and here, Guadagni's act of moving the truck is distinct from his act in driving recklessly once he was under police pursuit, similar to the distinct acts of robbery and evading. There is no reason to distinguish Rodriguez.
Applying either standard of review (de novo or substantial evidence), on this record we conclude independently, and hold the trial court could find, Guadagni held different objectives and intents in committing these offenses, because his act in evading arrest with reckless driving was not the method by which he obtained the truck by force and fear from Horn and drove away. As in Rodriguez, "[Guadagni] could have attained the objective of the [carjacking] ([taking the vehicle]) without evading arrest, if the police had not given chase. . . . [S]ince a defendant does not evade arrest as a means of perpetrating a [carjacking], a trial court may reasonably find that a defendant who commits a [carjacking] and evades arrest within the meaning of Vehicle Code section 2800.2, subdivision (a) acts with multiple objectives." (Rodriguez, supra, 235 Cal.App.4th at p. 1006.) And, like Rodriguez, we decline to apply the escape rule, as we agree that determining whether section 654 applies does not turn on whether Guadagni's act of evading occurred in the commission of his carjacking but instead on whether Guadagni entertained multiple criminal objectives.
II. Remand for Resentencing and Exercise of Court's Discretion to Stay or Dismiss the
Section 12022.5 and Section 12022 .53 Firearm Enhancements
The court sentenced Guadagni in July 2017. Thereafter, the Governor signed into law Senate Bill No. 620 (2017-2018 Reg. Sess.), which as of January 1, 2018, amends sections 12022.5 and 12022.53 to give trial courts discretion to strike or dismiss in the interest of justice what were formerly mandatory firearm enhancements. (See §§ 12022.5, subd. (c), 12022.53, subd. (h); Stats. 2017, ch. 682, § 2.) Guadagni contends that because his judgment is not final the statute should be applied retroactively, and we should remand the matter to permit the trial court to strike his firearm enhancements.
Pointing out the trial court gave no indication whether it would have stricken the enhancements if it had the authority to do so, the People concede that under People v. Francis (1969) 71 Cal.2d 66, Guadagni's case should be remanded for the court to exercise its discretion with regard to his firearm enhancements. We accept the People's concession and assume, without deciding, that the amendments of sections 12022.5, subdivision (c) and 12022.53, subdivision (h) apply to defendants whose convictions are not yet final and would apply to Guadagni's conviction. Guadagni has a right to be heard under the new scheme, and is "entitled to a sentencing decision made in the exercise of the 'informed discretion' of the court." (People v. Jones (2007) 157 Cal.App.4th 1373, 1383.) Thus, the matter is remanded to the trial court to conduct a new sentencing hearing for the limited purpose of allowing it to exercise its discretion under section 1385 and decide whether to strike one or more of the section 12022.5, subdivision (a) and section 12022.53, subdivision (b) firearm enhancements found true by the jury, or to again impose the enhancement terms.
DISPOSITION
The matter is remanded for resentencing for the limited purpose of allowing the superior court to exercise its discretion to consider whether to strike or dismiss one or more of the section 12022.5, subdivision (a) and section 12022.53, subdivision (b) enhancements under section 1385. Following resentencing, the court shall forward an amended abstract of judgment to the appropriate authorities. In all other respects, the judgment is affirmed.
O'ROURKE, J. WE CONCUR: NARES, Acting P. J. DATO, J.