Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F01998
DAVIS , Acting P.J.
A jury convicted defendant David James Kirkland of unlawful taking or driving a motor vehicle (Veh. Code, § 10851, subd. (a)), evading a peace officer with willful disregard for the safety of others (Veh. Code, § 2800.2, subd. (a)), and leaving the scene of an accident (Veh. Code, § 20002). Defendant admitted a prior serious felony conviction for robbery within the meaning of the “Three strikes” law and was sentenced to seven years four months in prison.
On appeal, defendant contends (1) his sentence for failure to stop at the scene of an accident involving property damage should have been stayed pursuant to Penal Code section 654; (2) the trial court was without authority to order him to pay $6,400.45 in restitution to Sacramento County; (3) the abstract incorrectly states the amount of his restitution fines; (4) defendant is entitled to an extra 21 days of custody credit; and (5) defendant’s upper-term sentence violates the rule of Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi), Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely), and Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham). We shall modify the judgment to award an extra 21 days of custody credit, stay the sentence for leaving the scene of an accident, and otherwise affirm.
Background
One Friday afternoon, Sergeant Matthew Morgin, of the Sacramento County Sheriff’s Department, spotted a white Infiniti driving erratically just north of the Howe Avenue Bridge in Sacramento. As Sergeant Morgin started to run the license plate number, a radio dispatcher called him and told him the Infiniti was stolen. Defendant was the driver of the Infiniti.
The sergeant, who was driving an unmarked car, tried to follow defendant without being noticed. The Infiniti pulled into a Shell station at the intersection of Fair Oaks Boulevard and University Avenue, exited onto Fair Oaks Boulevard, and moved through a turn pocket so he was headed east in the westbound lane of Fair Oaks Boulevard into “heavy” traffic.
At that point, Sergeant Morgin activated his emergency lights and siren and pursued defendant, who continued down Fair Oaks until turning northeast on Fulton Avenue. Defendant drove down Fulton on the wrong side of the street before running a red light, making “a sharp U-turn,” and turning west on Sierra Boulevard. The Infiniti reached speeds of 70 miles per hour, driving on the wrong side of the street to get around slower traffic. The speed limit on Sierra Boulevard was 30 miles per hour and the traffic was “fairly light” at that time.
Defendant continued down Sierra Boulevard and turned north on Howe Avenue, driving over the lawn of a local business as he made the turn. All three northbound lanes of Howe Avenue were “completely backed up” so defendant drove between the lanes like a motorcycle in traffic, forcing motorists to part for him as he maintained a high rate of speed.
As Sergeant Morgin continued to follow him, defendant drove east onto Northrop Avenue, cutting across the parking lot of a business complex. At this point, Sacramento County Sheriff’s Department Sergeant Rex Parker took over the pursuit in his marked patrol car as defendant continued east on Northrop at speeds of 60 to 70 miles per hour and crossed Fulton Avenue. Sergeant Parker activated his lights and siren and followed defendant as he turned north on Morse Avenue from Northrop, driving at 70 miles per hour in a zone marked 45 miles per hour or less.
As defendant approached Arden Way he entered a parking lot, made a loop, and drove back onto Morse. Reentering Morse, defendant accelerated quickly and then hit the brakes, causing Sergeant Parker to collide with him, damaging the patrol car’s “buddy bumper.”
Defendant then turned east onto Trussel Way, which was a dead-end street. The still-pursing Sergeant Parker rammed the Infiniti in an attempt to stop the car, but defendant kept driving. Defendant made a U-turn at the end of Trussel, exited, and turned north onto Morse Avenue into oncoming traffic.
Defendant then headed eastbound on Arden Way, in the westbound lane, into heavy traffic. He drove back into the parking lot, exiting westbound on Arden way into oncoming traffic. By the time he crossed Fulton Avenue, he was on the correct side of the street. As defendant drove down Arden Way, Deputy Melvin Oania took over as the lead pursuit officer. Defendant turned into a parking lot on the north side of Arden just past Wright Street.
Deputy Oania followed defendant into the lot, while Sergeant Parker drove on the street, parallel and slightly in front, hoping to either ram defendant or block him from exiting. Defendant drove the Infiniti over a concrete barrier and hit Sergeant Parker’s patrol car, which pushed it sideways and caused the hood to go up. Sergeant Parker was transported by ambulance to the hospital.
Defendant continued driving. He left the parking lot and turned south from Arden Way to Wayland Avenue, with Deputy Oania in pursuit. Wayland forms the back side of a local high school. School was letting out, and there was heavy pedestrian traffic in the area. When defendant turned eastbound onto Wittkop Way, Deputy Oania decided to end the chase by employing a pursuit intervention technique or “pit” maneuver, which involved turning his front tire into the rear tire of the Infiniti.
The deputy successfully employed the maneuver and the Infiniti spun and headed to the north side of Wittkop Way, where it stopped on a residential front yard. Deputy Oania’s car continued, hitting Julissa G. and Victor Z. as they were walking to a friend’s house from school. Julissa G. went to the hospital to have a piece of plastic removed from her calf; Victor Z. did not sustain any serious injuries. Defendant was arrested after the Infiniti stopped.
Discussion
I
The trial court imposed concurrent sentences for defendant’s convictions for evading a police officer and leaving the scene of an accident. In defendant’s view, this violated Penal Code section 654’s proscription of multiple punishment. We agree and shall modify the judgment to stay the sentence.
Penal Code section 654 prohibits punishment for two offenses arising from the same act or from a series of acts constituting an indivisible course of conduct. (People v. Latimer (1993) 5 Cal.4th 1203, 1216.) Whether a course of criminal conduct is divisible and gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all the offenses were incident to a single objective, the defendant may be punished for only one. (Neal v. State of California (1960) 55 Cal.2d 11, 19.) However, if the defendant entertained multiple criminal objectives that were independent of one another, he may be punished for each offense committed in pursuit of each objective, even though the offenses were otherwise part of an indivisible course of conduct. (People v. Harrison (1989) 48 Cal.3d 321, 335.)
It is undisputed that defendant’s intent, from the time he sped across Fair Oaks Boulevard until the stolen Infiniti was stopped, was to evade police pursuit. Defendant’s failure to stop after hitting Sergeant Parker’s patrol car was indivisible from his fleeing police pursuit. Therefore, the trial court should have stayed his misdemeanor sentence.
Since the sentence for leaving the scene was consecutive to the principal term, resentencing is not necessary. We shall modify the judgment and stay defendant’s sentence for leaving the scene of an accident.
II
The trial court ordered defendant to pay Sacramento County $6,400.45 as restitution for damages to Sergeant Parker’s patrol car. Defendant objected to the order on the ground that he was not convicted of any crime related to the damage to Sergeant Parker’s car, and the trial court overruled his objection. Defendant contends on appeal that the restitution order was improper because Sacramento County was not a direct victim of his crimes. We reject the contention.
The Attorney General asserts defendant forfeited his claim by failing to object on this ground in the trial court. Any objection not specifically raised in the trial court is forfeited on appeal. (People v. Boyette (2002) 29 Cal.4th 381, 424.) However, defendant’s claim--that the restitution order was made to a party who is not a direct victim of the crime--asserts that the restitution was unauthorized and thus defendant’s claim cannot be forfeited for failure to assert it below. (See People v. Sexton (1995) 33 Cal.App.4th 64, 69-70, disapproved on other grounds in People v. Birkett (1999) 21 Cal.4th 226, 247, fn. 20.)
Penal Code section 1202.4, subdivision (a)(1) provides: “It is the intent of the Legislature that a victim of crime who incurs any economic loss as a result of the commission of a crime shall receive restitution directly from any defendant convicted of that crime.” Subdivision (k)(2) adds: “For purposes of this section, ‘victim’ shall include all of the following: [¶] . . . [¶] (2) Any . . . government, governmental subdivision, agency, or instrumentality, or any other legal or commercial entity when that entity is a direct victim of a crime.”
“. . . Penal Code section 1202.4, subdivision (k) permits restitution to a business or governmental entity only when it is a direct victim of crime.” (People v. Martinez (2005) 36 Cal.4th 384, 393 (Martinez), italics omitted.) As Martinez observed, “‘public agencies are not directly “victimized” for purposes of restitution under Penal Code section 1202.4 merely because they spend money to investigate crimes or apprehend criminals.’ [Citation.]” (Id. at p. 393, fn. 1.)
Defendant was convicted of violating Vehicle Code section 2800.2, subdivision (a), which prohibits the flight from or attempts to elude a pursuing police officer “when the pursued vehicle is driven in a willful or wanton disregard for the safety of persons or property.” The facts presented at trial provide overwhelming proof that defendant intentionally hit Sergeant Parker’s car with the stolen Infiniti so he could continue to evade police pursuit. Defendant’s action disabled one of the pursuing patrol cars and prevented Sergeant Parker from blocking defendant’s escape from the parking lot.
Contrary to defendant’s assertion, this is not a cost “incurred during [an] officer’s performance of his duties.” While Sacramento County could not be compensated for the cost of gasoline or the personnel costs of the pursuit, defendant’s decision to hit the county’s patrol car is another matter. Striking Sergeant Parker’s car was the immediate object of defendant’s criminal conduct in willfully evading police officers. Sacramento County, as the owner of the car, was the direct victim of defendant’s criminal conduct and was therefore entitled to restitution for the damage to the car.
III
Defendant contends, and the Attorney General concedes, that the abstract of judgment incorrectly states the amount of the restitution fines ordered by the trial court. The abstract should be corrected to reflect that the trial court ordered a $200 restitution fine (Pen. Code, § 1202.4, subd. (b)) and stayed a $200 restitution fine pending successful completion of parole (id., § 1202.45). (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
IV
The trial court awarded defendant 415 days custody credit and 206 days conduct credit. Defendant contends and the Attorney General correctly concedes this was error.
Defendant was in custody from his March 4, 2005, arrest through his sentencing on May 5, 2006. This equals 428 days of actual custody and 214 days conduct credit, for a total of 642 days of presentence custody credit. We shall modify the judgment accordingly. (Pen. Code, § 4019; People v. Autry (1995) 37 Cal.App.4th 351, 364.)
V
Defendant contends the imposition of upper term sentences violates the Sixth Amendment to the United States Constitution as interpreted in Apprendi, supra, 530 U.S. 466 , Blakely, supra, 542 U.S. 296, and Cunningham, supra, 549 U.S. ___ [166 L.Ed.2d 856]. We disagree, finding his claim foreclosed under the recently decided People v. Black (2007) 41 Cal.4th 799 (Black II).
Apprendi held that, other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be tried to a jury and proved beyond a reasonable doubt. (Apprendi, supra, 530 U.S. at p. 490.) For this purpose, the statutory maximum is the maximum sentence a court could impose based solely on facts reflected by a jury’s verdict or admitted by the defendant; thus, when a court’s authority to impose an enhanced sentence depends upon additional factfindings, there is a right to a jury trial and proof beyond a reasonable doubt on the additional facts. (Blakely, supra, 542 U.S. at pp. 303-305.)
In Cunningham, the United States Supreme Court held that by “assign[ing] to the trial judge, not to the jury, authority to find the facts that expose a defendant to an elevated ‘upper term’ sentence,” California’s determinate sentencing law “violates a defendant’s right to trial by jury safeguarded by the Sixth and Fourteenth Amendments.” (Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 864, overruling People v. Black (2005) 35 Cal.4th 1238 (Black I) on this point, vacated sub nom. Black v. California (2007) 549 U.S. __ [167 L.Ed.2d 36].) However, as pointed out in Apprendi, Blakely, and Cunningham, the Sixth Amendment jury trial guarantee does not apply to prior convictions that are used to impose greater punishment. (E.g., Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 864].)
In Black II, the California Supreme Court applied the Apprendi-Blakely line of cases, as interpreted in Cunningham, to California’s determinate sentencing law. It concluded “so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury.” (Black II, supra, 41 Cal.4th at p. 813, original italics.)
The presence of a single aggravating circumstance found in accordance with the Apprendi rule renders defendant eligible for the upper term. (Black II, supra, 41 Cal.4th at p. 815.) Therefore, “imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (Id. at p. 816.)
The trial court sentenced defendant to an upper term of three years for evading a police officer. In imposing the upper term, the trial court found no mitigating circumstances and found two aggravating factors, defendant’s “numerous” prior adult and juvenile convictions and his being on parole at the time of the offense.
The trial court’s reliance on defendant’s prior convictions rendered him eligible for an upper term sentence. (Black II, supra, 41 Cal.4th at p. 818.) The prior conviction exception to Apprendi is not to be read “too narrowly.” (Id. at p. 819.) Numerous cases have interpreted this exception “to include not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions.” (Ibid.) Whether defendant’s prior convictions were “numerous or of increasing seriousness” (Cal. Rules of Court, rule 4.421(b)(2)) is one example of a factor that comes within the recidivism exception to Apprendi. (Black II, supra, 41 Cal.4th at pp. 819-820.) Defendant’s parole status at his arrest is another, as it too may be determined by examining defendant’s criminal record.
Since defendant was not entitled to a jury trial on either of the factors upon which the trial court relied, his upper term sentence does not violate the Sixth Amendment.
Disposition
The judgment is modified, increasing the custody credits to 428 days of actual custody and 214 days conduct credit and staying the sentence for leaving the scene of an accident. The trial court is directed to prepare an amended abstract of judgment reflecting this and the imposition of a $200 restitution fine and a $200 parole revocation fine and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
We concur: ROBIE , J. BUTZ , J.