Opinion
C080695
12-14-2017
THE PEOPLE, Plaintiff and Respondent, v. DEON HAMPTON, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. 14F06900, 15F00267)
Defendant Deon Hampton was convicted of two counts of felony child endangerment, one count for felony evading a law enforcement officer, one count of felony failure to appear, and various sentencing enhancements. He now appeals his judgment, contending the trial court made prejudicial instructional errors and also erred in sentencing. We will affirm the judgment.
FACTUAL BACKGROUND
Following the well-established rule of appellate review, we recite the facts in the light most favorable to the judgment. (People v. Bogle (1995) 41 Cal.App.4th 770, 775.) At about 7:20 a.m. on October 1, 2014, a parole agent, who was observing defendant as part of a task force, saw defendant get into a black Audi at an apartment complex. Two children also got into the car—a boy got into the front right passenger seat and a girl got into the rear right passenger seat. The parole agent, who was parked in an unmarked car, informed other members of the task force by radio that defendant was preparing to leave and had children in the car. As defendant left the apartment complex and made his way to the freeway, the parole agent followed. Traffic on the freeway was quite heavy at that time of morning.
Based on the parole agent's request for assistance, a marked police car arrived and followed defendant for several miles; after about 15 minutes, defendant exited the freeway in downtown Sacramento. The police officer turned on his flashing lights and siren and tried to initiate a traffic stop of defendant. When the officer turned on his lights, there were no cars between defendant and the police officer, and not many on the roadway at that location, but there was traffic all around. Defendant initiated his turn signal to suggest he was going to move over to the right, but instead he continued straight for another block, then pulled to the side and began to slow down. At that point, rather than stopping, defendant turned the wrong direction on a one-way street, where he ultimately pulled to a stop. The police officer approached to conduct the traffic stop, but after the officer opened his car door, defendant accelerated quickly in the wrong direction against multiple lanes of one-way traffic, cut off an approaching driver, and turned onto another street continuing to drive at a "very, very high rate of speed." At that point, the parole agent lost sight of defendant and the officer.
It is common practice for a marked vehicle to make the traffic stop instead of an unmarked car so that the person being stopped knows it is law enforcement conducting the stop.
The officer tried to follow defendant, but was hindered by traffic, and lost ground against defendant, who was then travelling in excess of 50 miles per hour on a very narrow street with a 25-mile-per-hour speed limit. The officer saw defendant run through a stop sign into heavy traffic, cut off multiple drivers, and continue driving at a high rate of speed. The officer had to slow to proceed through the intersection and lost the vehicle as he had to slow for stop lights. The officer saw another marked police car nearby and assumed it was going to continue pursuit, but it did not. As defendant sped along the surface streets toward the freeway, he missed hitting another vehicle by two to three feet that had stopped at an intersection and was making a turn with the right of way.
After losing sight of defendant, the parole agent went back to the apartment complex. When he arrived, defendant's car was there, but he did not see defendant or the children. A federal agent involved in the task force had heard the pursuit on the radio, and went directly to the apartment complex in case defendant returned there. As she arrived, she saw defendant driving through the complex "very rapidly." She followed him until he parked, where she saw him and the boy standing outside the car, and saw the girl get out of the car. Defendant told the girl, "Come on, come on. We gotta go. Let's go, let's go, let's go." Then he and the two children ran into the apartment. Once inside, defendant called his parole officer, who responded to the scene.
The detective coordinating the surveillance of defendant arrived at the apartment complex and began establishing a perimeter, and eventually the hostage negotiation team and the SWAT unit were called upon. There was no response to multiple announcements directing defendant and the residents of the apartment to come out. Defendant testified he did not immediately respond or surrender because he was afraid he would be shot; rather, he waited until his parole officer arrived and called him. Ultimately, it took four hours from the time defendant entered the apartment following the pursuit until he surrendered to police. The children, who appeared upset and scared, came out of the apartment at the same time as defendant.
A search of the apartment revealed a 10-round magazine, a 12-round magazine, and 16 live .40-caliber rounds hidden in a vent in the kitchen. Though the ammunition was tested for DNA, the tests did not reveal DNA belonging to defendant. Additionally, the apartment was not leased to defendant but to his girlfriend.
PROCEDURAL BACKGROUND
In case No. 14F06900, defendant was charged with evading a peace officer while driving in a reckless manner (Veh. Code, § 2800.2, subd. (a)—count one), endangering a child in circumstances or conditions likely to produce great bodily harm or death (Pen. Code, § 273a, subd. (a)—counts two and three), and felonious possession of ammunition (§ 30305, subd. (a)(1)—count four). It was additionally alleged defendant had a prior serious felony conviction. (§ 667, subd. (e)(1).)
Undesignated statutory references are to the Penal Code.
The jury found defendant guilty of evading a peace officer and of both counts of child endangerment, but found him not guilty of being a felon in possession of ammunition. Following a bifurcated proceeding, the trial court sustained the prior felony conviction allegation.
In case No. 15F00267, defendant was charged with felony failure to appear at a court proceeding in the instant matter (§ 1320.5), and it was additionally alleged he committed that offense while on bail (§ 12022.1) and had a prior serious felony conviction (§ 667, subd. (e)(1)). In a court trial, the court found defendant guilty of that offense, and sustained the allegation that defendant had a prior felony conviction. It made no express finding regarding the on-bail enhancement.
At a sentencing hearing for both matters, the trial court sentenced defendant to an aggregate term of 15 years in state prison. In case No. 14F06900, he was sentenced to eight years (double the middle term) for one count of child endangerment (count two); plus a consecutive two years eight months (double one-third the middle term) for the other count of child endangerment (count three); plus a concurrent term of four years for attempting to evade police (count one); plus one year consecutive for a prior prison term (§ 667.5, subd. (b)). In case No. 15F00267, he was sentenced to a consecutive one year four months (one-third the middle term) for failing to appear and to a consecutive two-year term for the on-bail enhancement.
DISCUSSION
Defendant contends the trial court prejudicially erred by failing to instruct the jury sua sponte on misdemeanor child endangerment as a lesser included offense for counts two and three. He also claims his conviction for those counts must be reversed because the trial court failed to provide a unanimity instruction. With respect to sentencing, defendant contends the trial court ought to have stayed his sentence for count one pursuant to section 654, abused its discretion in imposing a consecutive sentence for count three based on impermissible factors, and erred in imposing a sentence for the on-bail enhancement without sustaining the allegation and based solely on his failure to appear. We are not persuaded.
1.0 Instructional Error
1.1 Failure to Instruct Sua Sponte on Lesser Included Offense
Section 273a, subdivision (a) makes it a felony to "under circumstances or conditions likely to produce great bodily harm or death, willfully cause[] or permit[] any child to suffer, or inflict[] thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully cause[] or permit[] the person or health of that child to be injured, or willfully cause[] or permit[] that child to be placed in a situation where his or her person or health is endangered." Subdivision (b) of section 273a makes the same type of conduct a misdemeanor where it occurs "under circumstances or conditions other than those likely to produce great bodily harm or death . . . ." Here, the trial court instructed the jury on the felony offense only, and did not instruct the jury on misdemeanor child endangerment. Defendant contends the trial court should have provided the instruction on the lesser included misdemeanor offense sua sponte. We disagree.
"The trial court must instruct sua sponte on 'lesser included offenses if the evidence "raises a question as to whether all of the elements of the charged offense are present and there is evidence that would justify a conviction of such a lesser offense." ' " (People v. Hamlin (2009) 170 Cal.App.4th 1412, 1456.) For an instruction on a lesser included offense to be required sua sponte, however, there must be " 'evidence that a reasonable jury could find persuasive' on the point." (Id. at p. 1455.) "[T]he existence of 'any evidence, no matter how weak' will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is 'substantial enough to merit consideration' by the jury. [Citations.] 'Substantial evidence' in this context is ' "evidence from which a jury composed of reasonable [persons] could . . . conclude[]" ' that the lesser offense, but not the greater, was committed." (People v. Breverman (1998) 19 Cal.4th 142, 162.)
Here, there was no evidence presented that would permit a reasonable jury to find defendant guilty of misdemeanor child endangerment but not of felony child endangerment. Engaging in reckless driving with "wanton disregard for the safety of persons or property" (Veh. Code, § 2800.2) while attempting to evade officers on a high-speed police chase on city streets and as part of the same course of conduct, barricading himself and the children who had been in the car in the apartment despite officer demands that he surrender involves "circumstances or conditions likely to produce great bodily harm or death" to the children. (§ 273a, subd. (a).) Additionally, defendant's theory at trial was that the children were not in the car during the police pursuit through downtown. If this were true, defendant was not guilty of child endangerment during the police pursuit—not because the circumstances did not pose a risk of great bodily harm or death, but because the children were not there at all to be endangered during that time. Thus, there was no evidence presented that would suggest defendant could be convicted of the misdemeanor and not of the felony violation of section 273a. Accordingly, the trial court did not err in failing to instruct the jury sua sponte on the lesser included offense of misdemeanor child endangerment. Moreover, as we have found no error in declining to instruct on the lesser included offense, this failure does not violate defendant's constitutional rights.
1.2 Instruction on Unanimity
During deliberations, the jury asked the trial court for some clarification: "For the child endangerment charges, are we referring to just during the pursuit or also during the standoff inside the apartment?" The trial court prepared a response to that inquiry, which defendant affirmatively approved. On appeal, for the first time, he argues that the trial court erred by providing what he construes as an "erroneous unanimity instruction." The fatal flaw in defendant's claim is that the instruction the trial court provided in response to the jury's inquiry was not a unanimity instruction at all; rather it was a nonunanimity instruction. We conclude that even if defendant's claim were not forfeited by his express approval of the instruction (see, e.g., People v. Harris (2008) 43 Cal.4th 1269, 1317; People v. Rogers (2006) 39 Cal.4th 826, 877; People v. Boyette (2002) 29 Cal.4th 381, 430; People v. Medina (1990) 51 Cal.3d 870, 902), it fails on the merits because no unanimity instruction was required.
In response to the jury's request for clarification on the acts that comprised the child endangerment charges, the trial court responded as follows: "[T]he defendant is accused of having violated . . . section 273a, subdivision (a) in Count Two against alleged victim [(the boy)], by having engaged in a course of conduct on or about October 1, 2014. The defendant is also accused of having violated . . . section 273a, subdivision (a), in Count Three against alleged victim [(the girl)], by having engaged in a course of conduct on or about October 1, 2014. [¶] The People must prove beyond a reasonable doubt that the defendant engaged in such a course of conduct with respect to Count Two, and in such a course of conduct with respect to Count Three. For Count Two, each juror must agree that the defendant engaged in acts or omissions that prove the required course of conduct, and for Count Three, each juror must agree that the defendant engaged in acts or omissions that prove the required course of conduct. As long as each of you is convinced beyond a reasonable doubt that the defendant committed some acts or omissions that prove the course of conduct for Count Two, you need not rely on the same acts or omissions to reach that conclusion. [¶] Similarly, as long as each of you is convinced beyond a reasonable doubt that the defendant committed some acts or omissions that prove the course of conduct for Count Three, you need not rely on the same acts or omissions to reach that conclusion. [¶] In making this determination, you may consider any evidence that has been presented to you at the trial."
The People had argued in closing that defendant endangered the children "when he put them in that car, and he made an intentional choice to flee from officers at a high rate of speed, in the middle of rush hour traffic downtown, with the intent to evade the officers. And then [he] dragged them into a four-hour standoff with the SWAT team, hostage negotiators and the whole entire apartment [building] being evacuated." Defendant now asserts this argument suggests there were two separate acts requiring a unanimity instruction. We disagree. The People's closing argument is consistent with the theory that the child endangerment took place during a single and continuing course of conduct to evade law enforcement. The trial court's response to the jury's question too was consistent with that theory. Based on this record, no unanimity instruction was required. Therefore, defendant has not demonstrated that the trial court's instruction was erroneous.
2.0 Sentencing Error
2.1 Failure to Stay Sentence for Count One
Defendant contends the trial court erred in failing to stay his sentence for count one pursuant to section 654. We conclude the trial court did not err in failing to stay execution of defendant's sentence for count one.
Section 654, subdivision (a), provides in pertinent part: "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." Thus, section 654 precludes multiple punishment for separate offenses arising out of a single occurrence or course of conduct when all of the offenses were incident to a single intent and objective. (People v. Latimer (1993) 5 Cal.4th 1203, 1208; People v. McCoy (2012) 208 Cal.App.4th 1333, 1338.)
By imposing a concurrent sentence for count one, the trial court impliedly found that in committing child endangerment and felony evasion defendant engaged in either separate acts or a continuous course of conduct motivated by separate intents and objectives. We review the trial court's finding whether section 654 applies for substantial evidence. (People v. Kurtenbach (2012) 204 Cal.App.4th 1264, 1289; People v. Blake (1998) 68 Cal.App.4th 509, 512.)
Here, the evidence indicates defendant engaged in a course of conduct that involved engaging in a high-speed chase in an attempt to evade police custody, returning to his girlfriend's apartment driving recklessly and at high speeds even after evading the police, and then rushing the children inside the apartment and keeping them there despite police requests that he surrender himself. Though defendant's course of conduct occurred over a short period of time, there appears to have been a point at which defendant did temporarily evade police, but nonetheless continued to engage in conduct that further endangered the children. (See People v. Andra (2007) 156 Cal.App.4th 638, 640 [course of conduct divisible in time may give rise to multiple punishments especially " ' "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" ' "].) Thus, there is substantial evidence to support the trial court's implicit finding that defendant engaged in a course of conduct motivated by separate intents and objectives to render section 654 inapplicable.
Defendant fails to account for the continued conduct following the police pursuit in his version of the facts that supported his convictions for child endangerment and felony evasion. This misstatement of the facts is particularly egregious given his contention with respect to the trial court's instruction regarding unanimity, in which he argues there was evidence presented of two violations of child endangerment—the police pursuit and the standoff in the apartment—and the People referenced both acts in closing argument.
2.2 Imposition of Consecutive Sentence for Count Three
Defendant contends it was error for the trial court to impose a consecutive sentence for count three because it improperly relied on the existence of multiple victims as a criterion for its decision. Indeed, in sentencing defendant to consecutive terms for counts two and three, the trial court did reference that there were separate victims for each count. However, we conclude, without deciding, that even assuming the trial court erred in relying on that criterion, such error is harmless.
In deciding whether to impose consecutive as opposed to concurrent sentences a trial court may consider whether "(1) [t]he crimes and their objectives were predominantly independent of each other; [¶] (2) [t]he crimes involved separate acts of violence or threats of violence; or [¶] (3) [t]he crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior." (Cal. Rules of Court, rule 4.425(a), criteria (1)-(3).) And, the court may consider any circumstances in aggravation other than facts used to impose the upper term, to otherwise enhance the sentence, or that are an element of the crime. (Rule 4.425(b), criteria (1)-(3).) Among these circumstances in aggravation are, inter alia, whether the victim was particularly vulnerable, whether the defendant's criminal convictions were numerous or of increasing seriousness, and whether he was on parole at the time the crime was committed. (Rule 4.421(a)(3), (b)(2) & (4).) The court may also consider "additional criteria reasonably related to the decision being made" so long as those criteria are stated on the record. (Rule 4.408(a).)
Further rule references are to the California Rules of Court.
We review the trial court's sentencing choice for abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) Even if we find the trial court erred in selecting a consecutive term for the reasons identified, we do not remand for resentencing if " ' "[i]t is not reasonably probable that a more favorable sentence would have been imposed in the absence of the error." ' " (People v. Osband (1996) 13 Cal.4th 622, 728-729.) "Only one criterion . . . in aggravation is necessary to support a consecutive sentence." (People v. Davis (1995) 10 Cal.4th 463, 552.) Thus, if adequate reasons exist to impose a consecutive sentence, a trial court's failure to state those reasons does not require a remand for resentencing. (People v. Smith (1984) 155 Cal.App.3d 539, 546; see People v. Leon (2010) 181 Cal.App.4th 452, 468-469.)
Here, defendant was on parole when he engaged in the acts of child endangerment, and the probation report also indicated that his crimes as an adult and juvenile were numerous and of increasing seriousness. Additionally, the two children could have been deemed particularly vulnerable in light of their young age, their close relationship with defendant, and their relative helplessness during the police pursuit in particular. In light of these aggravating factors, it is not reasonably probable the trial court would have imposed concurrent rather than consecutive terms. Accordingly, we conclude any error by the trial court in relying on the existence of multiple victims as a basis for selecting consecutive terms was harmless.
2.3 Imposition of Sentence for On-bail Enhancement
Defendant challenges the two-year sentence for the on-bail enhancement on two grounds: (1) the trial court did not orally pronounce its finding that the enhancement was true, and (2) the allegation is premised solely on a failure to appear in a court proceeding. Though the trial court did not orally pronounce its finding, we conclude the trial court implicitly made the finding supporting imposition of the on-bail enhancement.
Though we need not reach the second claim, we note, as defendant acknowledges, that this contention was directly rejected by People v. Walker (2002) 29 Cal.4th 577, 589. Thus, if we were to reach the claim, we would necessarily reject it. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Generally, when a factual matter is tried to the court, it must orally pronounce its findings and judgment, and its silence if it fails to do so operates as a finding that the allegation is not true. (See In re Candelario (1970) 3 Cal.3d 702, 706-707; People v. Gutierrez (1993) 14 Cal.App.4th 1425, 1440; People v. Anthony (1986) 185 Cal.App.3d 1114, 1125; People v. Garcia (1970) 4 Cal.App.3d 904, 907, fn. 2.) And, "in the absence of evidence to the contrary, it may be inferred that the omission [of the pronouncement] was an act of leniency by the trial court." (In re Candelario, supra, 3 Cal.3d at p. 706.) Here, however, there is evidence to the contrary in the record that indicates the trial court's omission was not an act of leniency. Indeed, the trial court, in stating its verdict, expressly found defendant guilty of the substantive offense of failing to appear for a court proceeding, and, after additional discussion, referenced case No. 15F00267, and found "defendant guilty as indicated." When it then proceeded to sentencing and pronouncement of judgment, the trial court confirmed with defense counsel that a consecutive sentence was mandatory for the failure to appear offense pursuant to section 12022.1, subdivision (e), which is the statute providing for the on-bail sentencing enhancement. Finally, the trial court orally pronounced imposition of the consecutive two-year sentence pursuant to section 12022.1. Thus, we conclude the trial court made the implied finding that the on-bail enhancement allegation was true. Accordingly, we decline to strike the two-year sentence imposed pursuant to the enhancement.
DISPOSITION
The judgment is affirmed.
BUTZ, J. I concur: RAYE, P. J. MURRAY, J., concurring.
I agree with the majority's opinion in part 2.1 of the Discussion, but I disagree with the conclusion that "there is substantial evidence to support the trial court's implicit finding that defendant engaged in a course of conduct motivated by separate intents and objectives to render section 654 inapplicable." (Maj. opn., ante, p. 10.) I also agree with the majority opinion in part 2.2 of the Discussion, but write separately to point out that there was nothing wrong with the trial court relying on the fact that there were multiple victims as a reason to impose consecutive sentences.
I. Section 654
Penal Code section 654, subdivision (a), provides in pertinent part: "An act . . . 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 . . . be punished under more than one provision. . . ." In Neal v. California (1960) 55 Cal.2d 11 (Neal), our high court held: "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." (Neal, at p. 19, italics added, disapproved on other grounds in People v. Correa (2012) 54 Cal.4th 331, 334 (Correa).) "If, on the other hand, [a] defendant harbored 'multiple criminal objectives,' which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, 'even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.' " (People v. Harrison (1989) 48 Cal.3d 321, 335.)
Undesignated statutory references are to the Penal Code in effect at the time of the charged offenses.
Thus, the existence of a separate intent or objective during a course of conduct is an exception to the application of section 654. (People v. Newman (2015) 238 Cal.App.4th 103, 112 [noting two exceptions to the application of section 654: separate intent or objective not merely incidental to each other during a course of conduct and multiple victims].) The majority reasons that "there is substantial evidence to support the trial court's implicit finding that defendant engaged in a course of conduct motivated by separate intents and objectives to render section 654 inapplicable." (Maj. opn., ante, p. 10.) But the majority does not say what those separate intents or objectives are. In his briefing, the Attorney General merely states in conclusory fashion that defendant had a separate intent to endanger the children—but why? The question of whether a defendant had a separate intent or objective can be determined by answering the following question: Why did the defendant engage in the charged conduct? Here, the charged conduct is evading a peace officer while driving in a reckless manner (with willful and wanton disregard for the safety of persons and property) and felony child endangerment, so why did the defendant commit those crimes? The clear answer is that the defendant wanted to avoid apprehension by law enforcement. He had no other reason or purpose for endangering the children. Their endangerment was incidental to the objective of avoiding apprehension by the authorities.
That there was but one intent or objective is verified by looking at the prosecutor's closing argument. The prosecutor argued, "Kids look up to adults for protection and guidance, and it's adults' responsibility not to put them in harm's way and protect them. [¶] That is not what the defendant did in this case. In fact, he threw them right in the middle of harm's way back on October 1st, 2014, those children. He made the intentional decision to endanger their lives when he put them in that car, and he made an intentional choice to flee from officers at a high rate of speed, in the middle of rush hour traffic downtown, with the intent to evade the officers. And then [he] dragged them into a four-hour standoff with the SWAT team, hostage negotiators and the whole entire apartment being evacuated." (Italics added.) In discussing the child endangerment charges, the prosecutor argued: "Think about the conduct you heard about in this case, and the video you watched, and the fact that there were two young kids in the car, a six-year old and a nine-year old. That conduct you saw in the video is what the defendant did with those kids inside that car. He didn't care, right? He just wanted to get away. And he did it on purpose. There was no mistake in what he was doing. He admitted to you on the stand that he wanted to get away. So it was on purpose. He intended to do what he did, and that was to get away." (Italics added.) In discussing the evading charge, the prosecutor argued, "And the defendant's actions were totally disregarding anybody else. He didn't care. All he cared about was himself, to get out of there. Really. He didn't want to stick around. He was indifferent to the consequences of his acts because he had one goal: He didn't want to get caught. He didn't want to get caught so he took off and lost the officers. That was his main goal. He didn't care about anybody else. He didn't care about the kids. He just cared about himself." (Italics added.) As can be seen from the italicized text, the prosecutor's theory was that defendant's singular goal was not to get caught, and he did not care who he endangered in his effort to avoid apprehension.
Another exception to the application of section 654 can be found in the case upon which the majority relies, People v. Andra (2007) 156 Cal.App.4th 638, and a case cited therein, People v. Gaio (2000) 81 Cal.App.4th 919. As the court in Gaio noted, "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." (Gaio, at p. 935, italics added.) Thus, even when there is " 'one objective,' " if multiple crimes are committed during a course of conduct divisible in time, where the defendant has an "opportunity to reflect and renew his or her intent," section 654 does not apply. (Gaio, at p. 935.) The application of this exception seems particularly appropriate where, as here, there are multiple victims. "[T]he purpose of section 654 is to ensure that a defendant's punishment will be commensurate with his culpability." (Correa, supra, 54 Cal.4th at p. 341, citing Neal, supra, 55 Cal.2d at p. 20.) In Andra, the defendant engaged in a crime spree involving the following: stealing the identity of a woman; opening a credit card in the woman's name; renting a vehicle with that credit card; opening a bank account in the woman's name; and depositing fraudulent and stolen checks into the bank account and withdrawing money therefrom. In this scheme, the woman whose identity was stolen, the rental car company, and the bank were all separate victims, a factor the Andra court relied upon in holding that section 654 did not apply. (Andra, at pp. 641-642.)
Here, defendant had an opportunity to reflect and renew his intent when he temporarily evaded the pursuing officers, drove into the apartment parking lot, left his car, hustled the kids into the apartment and situated himself inside before realizing the authorities were still in hot pursuit. Multiple victims were involved, including the numerous motorists and their passengers he endangered during the evading and the two children who were in his car and the apartment. Additionally, after defendant shepherded the children into the apartment and realized that law enforcement was outside, he created a new risk of harm to them. Consequently, applying section 654 here would frustrate the statutory goal of punishing offenders commensurate with their criminality.
I would reject application of section 654 here not because defendant had separate intents or objectives in evading law enforcement and endangering the children, but because he engaged in a course of conduct giving rise to multiple violations involving multiple victims which was divisible in time and during which there was an opportunity to reflect and renew his intent. Punishing defendant (albeit with a concurrent sentence) is commensurate with his criminality and consistent with the underlying purpose of section 654.
II. Multiple Victims as a Reason for Consecutive Sentences
The majority assumes, without deciding, that even if the trial court erred in relying on the fact that there were multiple victims as a reason for consecutive sentences, that any such error is harmless. I agree with the numerous other circumstances identified by the majority upon which the trial court could have relied to impose consecutive sentences for the child endangerment convictions. However, there was nothing wrong with the court's reliance on the fact that there were multiple victims.
As our high court has said: "There is no persuasive reason why the trial court should not be allowed to consider the fact of multiple victims as a basis for imposing either the upper term or a consecutive sentence, although it cannot do both." (People v. Calhoun (2007) 40 Cal.4th 398, 408; see also People v. Leon (2010) 181 Cal.App.4th 452, 468; People v. Valenzuela (1995) 40 Cal.App.4th 358, 362-365; 1 Couzens et al., Sentencing Cal. Crimes (The Rutter Group 2017) § 13:17, p. 13-62.) " 'Multiple victims' " is a valid sentencing factor under rule 4.408 of California Rules of Court. (People v. Crabtree (2009) 169 Cal.App.4th 1293, 1326.) Defendant showed greater culpability here by endangering multiple children and consequently, consecutive sentences for the child endangerment convictions is justified. (Calhoun, at p. 408 [the gravity of and culpability of the offense was increased by the number of people harmed].) The trial court recognized this principle. It stated, "[T]here were two separate victims. And the defendant's conduct, selfish conduct endangered and exposed those children to a lot of harm . . . ." The court went on to say later, "[T]he Court is going to impose consecutive sentencing as to Counts Two and Three in 14F06900. I'm going to do that because there are two victims that were both put at serious risk. In my view this was a pretty egregious 2800, felony flight from peace officers. [¶] . . . there was wrong-way driving at very high speeds and there were two small children in the car."
Defendant asserts that "[t]his is not a situation in which [defendant] fired a gun into a crowd an[d] injured multiple victims." I agree that nobody was physically injured here, but that ignores the mental anguish experienced by the children. As the majority notes, when the children came out of the apartment, they appeared upset and scared. Moreover, I view defendant's conduct as similar to firing a bullet into a crowd of people, the difference here is that the children were riding on that bullet.
I would affirm the trial court's consecutive sentences based on there being multiple victims, a factor relevant to sentencing under California Rules of Court, rule 4.408.
MURRAY, J.