Opinion
C080392
02-01-2017
THE PEOPLE, Plaintiff and Respondent, v. DYLAN JOHN JOPES, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15-CR-23159)
A jury found defendant Dylan John Jopes guilty of assault with a shotgun on two peace officers while personally using the shotgun, misdemeanor child abuse while he personally used the shotgun, residential burglary, recklessly driving in evading pursuing peace officers, and carrying a loaded shotgun. After dismissing the firearm enhancement of the conviction for misdemeanor child abuse in the interests of justice and imposing a lesser firearm enhancement on the assaults—with the assent of the parties—the trial court sentenced defendant to nine years in state prison (the details of which we will come to presently). It then recalled the sentence in order to restructure it, resulting in a longer prison term (nine years four months).
On appeal, defendant contends there is insufficient evidence he committed an assault upon the two peace officers. He further maintains (and the People concede) that the trial court could not impose a consecutive term for an enhancement where it had imposed a concurrent term for the underlying offense; that it imposed a term for misdemeanor child abuse in excess of that prescribed under law; and that it made clerical errors in the abstract of judgment. We shall affirm the judgment as modified.
FACTUAL AND PROCEDURAL BACKGROUND
Our focus, in light of defendant's argument, is on the assault convictions. We omit most of the facts underlying the remaining convictions, except to provide context. As is customary, we resolve all explicit evidentiary conflicts in favor of the judgment, and presume in its favor all reasonable inferences. (People v. Mack (1992) 11 Cal.App.4th 1466, 1468.)
Defendant joined the National Guard in 2010 and went on active duty in 2011 at a California military base, where he gained expertise as a sniper. He married in 2012, had a child in 2013, and left the service in 2014. His wife remained in Amador County with her parents when he found a job in the Bay Area, living with his parents. Their marriage, by her description, was "rocky" at that point, and she told him in December 2014 that she wanted a divorce. He did not react well. His wife testified that he already had suffered from posttraumatic stress syndrome; he now seemed lost and expressed suicidal thoughts.
On February 6, 2015, he and his wife went to have their taxes prepared. He took her cell phone, and discovered text messages from a man with whom his wife recently began having an affair. Before he left, he told her that she would never see him again.
On the following day, defendant's parents returned to their home and found that he had broken into their bedroom (which his stepfather kept locked as a matter of habit) and taken a loaded shotgun that the stepfather used for hunting. Defendant arrived at the home of his in-laws, carrying the shotgun. He announced that he wanted to kill himself in front of them. While her mother distracted defendant, his wife called 911, telling dispatch that she was not sure whether he was intending to kill himself or them, and noting his sniper expertise. He drove off before deputies could respond to the situation.
A deputy sergeant who also had sniper expertise responded to the call, learning that defendant had already left his in-laws' home. He located defendant in his truck in "downtown" Pine Grove, and began to follow him. Defendant initially drove normally, and then began to flee. The sergeant called for emergency backup. Another deputy sheriff and a Sutter Creek police officer joined the pursuit.
The pursuing officers cornered defendant in a cul-de-sac, at which point they could see he had a shotgun pointing upward inside the cab. Defendant opened his door. As he sat there, the stock of the shotgun was against his shoulder, his hands were on the trigger and the forward grip, and the barrel was pointed downward. He did not react to repeated commands to drop the weapon, lighting up a cigarette. Defendant stepped out of the truck with the stock still against his shoulder. The sergeant, concerned that defendant was wielding the weapon with the familiarity of one who knew how to have it at the ready, decided that he would need to shoot at defendant if he pointed it at him. As defendant raised the barrel in the direction of the sergeant and another deputy who was also in the line of fire, the sergeant and other officers shot at him. Defendant fell to the ground on his side. Defendant rolled under the truck, releasing the shotgun. As officers rendered first aid, defendant disclaimed having had any intent to shoot at them; he wanted to shoot only himself. Defendant also testified that he never pointed his shotgun at the officers, was not attempting to induce them to shoot him, and was in the process of disarming himself when they shot him.
Close analysis of a dashboard camera recording indicated defendant may have said at this point that he did not intend to shoot anyone.
Other officers testified defendant deliberately raised the barrel almost parallel with the ground oriented toward the sergeant and the deputy in the line of fire as defendant got out of the truck. It did not appear that defendant was going to drop the shotgun.
DISCUSSION
1.0 There Was Sufficient Evidence of an Assault on the Peace Officers
Defendant contends the evidence does not establish that he was raising the shotgun in the direction of the officers with the intention of firing it. He distorts the testimony that we summarized above, claiming that the shotgun pointed in their direction only as an incidental part of his motion getting out of his truck. He also relies on his disclaimers of any intention to shoot at them.
Defendant does not cite any case holding that a declaration of an intent to shoot is a sine qua non for a conviction of assault, nor are we aware of any. Neither the jury nor this court is obligated to accept his disclaimers at face value—defendant did not comply with the repeated commands to drop the weapon; instead, he was holding it at the ready. The deputies testified that he raised the shotgun purposefully, not incident to getting out of the truck. The jury could thus properly infer on this evidence that defendant was in the process of purposefully pointing it at the officers either to fire at them, or to provoke them into shooting him first (i.e., " 'suicide by cop' " (City of Simi Valley v. Superior Court (2003) 111 Cal.App.4th 1077, 1079 & fn. 1)) in accord with his repeated statements that he wanted to die. The evidence is thus sufficient to support the assault verdicts.
2.0 Sentencing Errors
The assault in count I is the principal term. On September 4, 2015, the trial court imposed a concurrent term on count II (the second assault conviction) and its related firearm enhancement. It imposed concurrent terms on counts III (misdemeanor child abuse) and VI (carrying a loaded firearm), and consecutive terms for the burglary and reckless evasion convictions (counts IV and V). On September 9, 2015, the trial court recalled the sentence and imposed a consecutive term for only the enhancement in count II, and redesignated the term for the evasion conviction in count V as a concurrent term, which nonetheless resulted in a slightly longer sentence. It also recalculated defendant's credits for custody and conduct as of that date. The abstract of judgment prepared and filed on September 22, 2015, reflects these changes.
2.1 The Enhancement of a Concurrent Term Cannot Be Imposed Consecutively
It was error to impose a consecutive term for an enhancement divorced from its concurrent underlying offense. (People v. Mustafaa (1994) 22 Cal.App.4th 1305, 1309-1311.) Moreover, the new sentence was unlawful, because a trial court may not on its own motion reconsider a sentence to impose a longer term of imprisonment. (People v. Karaman (1992) 4 Cal.4th 335, 352.) We therefore vacate the judgment that attempted to resentence defendant (Sept. 9, 2015) and reinstate the original judgment (pronounced on Sept. 4, 2015). Contrary to the suggestion of defendant, this does not require a remand for resentencing, given that the trial court's sentencing intentions were clear at the time of the original sentencing. This also moots the argument regarding the recalculation of custody and conduct credits at the time of the resentencing; neither party suggests the calculation of these credits at the time of the original sentencing is incorrect. (People v. Johnson (2004) 32 Cal.4th 260, 263 [on recall of sentence, not entitled to award of additional presentence conduct credits]; cf. People v. Buckhalter (2001) 26 Cal.4th 20, 23 [in resentencing on remand, defendant entitled to recalculation of custody credits as of that date].) In filing an amended abstract because there are other errors, the trial court shall replicate its original sentencing.
2.2 The Sentence for Misdemeanor Child Abuse Is Incorrect
In imposing sentence on count III, the misdemeanor conviction for child abuse, the court set defendant's term at 364 days. The maximum sentence is 180 days. (Pen. Code, §§ 19, 273a, subd. (b).) We modify defendant's sentence accordingly. The trial court shall specify the proper sentence in an amended minute order.
Undesignated statutory references will be to the Penal Code. --------
3.0 Clerical Errors
3.1 Date of Conviction
The abstract of judgment lists the date of convictions as August 7, 2015. The verdicts were read in open court on August 10, 2015. A verdict is not complete until it is read in open court, acknowledged without dissent by the jurors, and recorded by the clerk. (People v. Peavey (1981) 126 Cal.App.3d 44, 49; § 1164.) The trial court shall correct the date of convictions in issuing an amended abstract of judgment.
3.2 The Abstract of Judgment Specifies the Wrong Credits Statute
The abstract specifies section 4019 as the basis for its award of conduct credits. Because defendant personally used a shotgun in committing the assaults, they came within the definition of a violent felony. (§ 667.5, subd. (c)(8).) His conduct credits are therefore subject to section 2933.1 (limiting them to 15 percent). The trial court shall correct the reference in item 16 in issuing an amended abstract of judgment.
DISPOSITION
The sentence imposed on recall is vacated, and the original sentencing is reinstated, with the modification that the concurrent term for the misdemeanor in count III is 180 days. As thus modified, the judgment is affirmed. The trial court is directed to amend its September 9, 2015 minute order to reflect this change. The court is further directed to prepare an amended abstract of judgment reflecting the changes specified in this opinion and forward a certified copy to the Department of Corrections and Rehabilitation.
BUTZ, Acting P. J. We concur: MAURO, J. DUARTE, J.