Opinion
E040253
4-25-2007
THE PEOPLE, Plaintiff and Respondent, v. STEVEN LEAF, Defendant and Appellant.
Catherine White, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Peter Quon, Jr., Supervising Deputy Attorney General, and Pat Zaharopoulos, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
A jury found Steven Leaf, defendant and appellant (hereafter defendant), guilty of evading a peace officer, in violation of Vehicle Code section 2800.2 (count 3), second degree burglary, in violation of Penal Code section 459 (count 4), assault with a deadly weapon or by means of force likely to produce great bodily injury, in violation of Penal Code section 245, subdivision (a)(1) (counts 5 and 6), and possession of burglary tools, in violation of Penal Code section 466 (count 7). After he waived his right to a jury, defendant admitted that he had previously been convicted of three felonies for which he served separate terms in prison within the meaning of section 667.5, subdivision (b), and that he previously had been convicted of a serious or violent felony within the meaning of section 667, subdivisions (c) and (e) and section 1170.12, subdivision (c). Based on the jurys guilty verdicts and defendants admissions, the trial court sentenced defendant to serve a total term of 15 years eight months in state prison, a sentence that includes the upper term of four years on count 5.
All further statutory references are to the Penal Code unless indicated otherwise.
In this appeal, defendant first contends that there was evidence presented at trial to show that he committed more than one act of possessing burglary tools, and therefore the trial court had a sua sponte duty to instruct the jury that, in order to find defendant guilty of that misdemeanor, the jury had to unanimously agree on the specific act of possession. Next, defendant contends that we must reverse his admissions of the prior conviction allegations because the trial court did not fully advise defendant of the constitutional rights he would be waiving by his admissions, and therefore those admissions were not knowing and voluntary. Defendants third contention is that the trial court erred by having defendant admit the prior conviction allegations set out in the original information because that information was superseded by an amended information that alleged a different date for one of the prior convictions. Defendant also contends that the trial court violated his Sixth Amendment right to a jury by imposing the upper term sentence on count 5. Finally, defendant contends that the trial court violated the prohibition set out in section 654 against multiple punishment for a single criminal act by punishing defendant on count 3 for evading a peace officer and also on count 5 and count 6 for the assaults with a deadly weapon that occurred when defendant crashed into another vehicle in the course of evading the peace officer.
We agree as we must that defendants upper term sentence runs afoul of Cunningham v. California (2007) ___ U.S. ___ . Defendants other contentions lack merit. Accordingly, we will vacate defendants sentence and remand the matter to the trial court for further proceedings consistent with Cunningham v. California. The judgment is otherwise affirmed.
FACTS
The pertinent facts are undisputed. On August 22, 2001, around 6:45 a.m., Paul Jordan was taking his morning walk around Panorama Village, a retirement community in Hemet, when he spotted a white Ford Probe that was backed up to the spa building. As Jordan walked toward the car, he heard the woman in the passenger seat say, "Hes coming." A man, later identified as defendant, who was near the back of the car, then slammed the trunk closed, got into the drivers seat, and pulled away from the building. After traveling a short distance, the car stopped. According to Jordan, who was reciting the license plate number out loud so that he could repeat it to the police, defendant spun the car around and drove straight at him. As defendant drove up on the curb toward him, Jordan ran toward the spa building. The car missed him by less than a foot. Defendant then spun the car around, and again drove straight at Jordan who jumped to the left, and this time the car only missed him by inches. While Jordan was sprawled in a flower bed, a police car arrived and followed defendant as he drove away.
The jury acquitted defendant on charges that he had attempted to murder Jordan, as alleged in counts 1 and 2.
Hemet Police Officer Robert Gibbs testified, in pertinent part, that he arrived at Panorama Village in time to see defendants white Ford traveling at about two miles an hour on the sidewalk. Before Officer Gibbs could get the cars license number, defendant accelerated and sped by the officer. Officer Gibbs activated the siren and lights on his police unit and pursued defendant but defendant did not stop. Instead defendant drove through four stop signs and on the wrong side of the road, traveling 70 to 80 miles an hour before he ultimately collided with a minivan in an intersection.
Maurita Gordon testified that she was taking her son to kindergarten and driving about five miles an hour when she heard horns honking. As she turned to look, defendants white car hit her minivan and then crashed into a tree. Officer Gibbs helped Gordon and her son from the minivan. The vehicle was totaled and Gordon suffered sprains to her neck and lower back, as well as an injured left arm but her son was not injured.
Richard Herrera, a maintenance man at Panorama Village, testified in pertinent part that he went to the spa building on the morning in question and found the place a mess. Items such as a shower head, toilet paper, mops, mop buckets, and paint were missing from the building. Herrera testified that the two doors to the building are always locked and that residents use their keys to enter the building. Pry marks on the east side door were consistent with someone trying to pry or "jimmy" the door knob. Herrera identified several items in defendants car that had been taken from the spa building.
The police also found drug paraphernalia in defendants car but the jury acquitted defendant on counts 8 and 9, which charged defendant with possession of that paraphernalia and possession of a hypodermic needle or syringe, respectively.
Defendant testified at trial and admitted that he had taken the items from the spa building. He stated that he and his girlfriend had entered the building through an unlocked door, and without permission, but only to use the spa. As they were leaving, defendant decided to take some "stupid stuff" that he found in the storage area. After backing his car up to the building, defendant went back inside to get the stolen items. He was driving away when he realized that Jordan was getting his license plate number, so defendant decided to return the stolen items. As he was driving back to the spa, Jordan stepped in front of his car. Defendant denied that he had tried to run Jordan down and also denied that he had been traveling fast. Another Panorama Village resident confirmed defendants testimony, and stated that defendant drove slowly, about five to ten miles an hour, and that Jordan stepped in front of defendants car.
Defendant also admitted that he fled from the police officer because he was scared and that he did not stop at stop signs or red lights. Defendant testified that he looked for cars as he drove through the various intersections and he swerved to get out of the way of the minivan but he could not avoid the collision because he was going too fast.
DISCUSSION
We address defendants contentions in the order established by his opening brief and therefore begin with his claim of purported instructional error.
1.
UNANIMITY INSTRUCTION
Defendant contends that the evidence at trial shows he possessed both a crow bar and a pocket knife, evidence that defendant contends established two separate acts that would support a conviction for possession of a burglary tool as alleged in count 7. As a result of that purported evidence, defendant claims the trial court had a duty to instruct sua sponte on the need for the jury to agree unanimously on the act that supported defendants conviction on the noted charge and that failure to give the instruction was reversible error. We disagree with defendants view of the evidence and therefore reject his claim, for reasons we now explain.
In his testimony at trial, defendant claimed that he took the crow bar from the spa building and thereby denied that he had possessed the tool with the intent of committing a burglary.
The pertinent legal principles are undisputed. "In a criminal case, a jury verdict must be unanimous. . . . Additionally the jury must agree unanimously the defendant is guilty of a specific crime. [Citation.] Therefore, cases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act. [Citations.] [¶] This requirement of unanimity as to the criminal act `is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed. [Citation.]" (People v. Russo (2001) 25 Cal.4th 1124, 1132.) "On the other hand, where the evidence shows only a single discrete crime but leaves room for disagreement as to exactly how that crime was committed . . . the jury need not unanimously agree on the basis or, as the cases often put it, the `theory whereby the defendant is guilty. [Citation.]" (Ibid.)
Defendants contrary view notwithstanding, the evidence in this case does not show two discrete acts of possession of a burglary tool. The evidence shows one discrete act in which defendant possessed two tools, namely a pocket knife and a crow bar, either or both of which defendant could have possessed with the intent to commit a burglary. In other words, defendant did not possess the pocket knife and crow bar at two separate or discrete times, and thereby commit two separate acts that would support a conviction under section 466. He committed one act of possessing these tools and therefore a unanimity instruction was not required.
2.
PRIOR CONVICTIONS
As noted above, defendant raises several claims that challenge the validity of his admission of the prior conviction allegations. First defendant contends that the trial court did not fully advise him of the rights he would be waiving by admitting those allegations and, next, that the date of the first alleged prior conviction defendant admitted was incorrect as evidenced by the allegation set out in an amended information and therefore that prior must be stricken. We agree with defendants factual assertions but conclude that if error occurred it was harmless.
It is well settled "that before accepting a criminal defendants admission of a prior conviction, the trial court must advise the defendant and obtain waivers of (1) the right to a trial to determine the fact of the prior conviction, (2) the right to remain silent, and (3) the right to confront adverse witnesses. [Citation.] Proper advisement and waivers of these rights in the record establish a defendants voluntary and intelligent admission of the prior conviction. (People v. Howard (1992) 1 Cal.4th 1132, 1178-1179 . . . ; North Carolina v. Alford (1970) 400 U.S. 25, 31 [27 L.Ed.2d 162, 91 S.Ct. 160].)" (People v. Mosby (2004) 33 Cal.4th 353, 356 (Mosby); see also In re Yurko (1974) 10 Cal.3d 857.)
In Mosby, as in this case, the trial court advised the defendant only of his right to a trial on a prior conviction allegation before the defendant admitted the truth of the allegation. Despite the inadequate advisement, the Supreme Court held, "When, immediately after a jury verdict of guilty, a defendant admits a prior conviction after being advised of and waiving only the right to trial" the admission can be "voluntary and intelligent" even though the defendant was not also advised of his right to remain silent and to confront witnesses, "if the totality of circumstances surrounding the admission supports such a conclusion." (Mosby, supra, 33 Cal.4th at p. 356.) In Mosby the totality of the circumstances included the fact that "defendant, who was represented by counsel, had just undergone a jury trial at which he did not testify, although his codefendant did. Thus, he not only would have known of, but had just exercised, his right to remain silent at trial, forcing the prosecution to prove he [was guilty of the charged offense]. And, because he had, through counsel, confronted witnesses at that immediately concluded trial, he would have understood that at a trial he had the right of confrontation. [¶] A review of the entire record also sheds light on defendants understanding. For instance, `a defendants prior experience with the criminal justice system is . . . `relevant to the question [of] whether he knowingly waived constitutional rights. [Citation.] That is so because previous experience in the criminal justice system is relevant to a recidivists `"knowledge and sophistication regarding his [legal] rights." [Citations.] Here defendants prior conviction was based on a plea of guilty, at which he would have received [the pertinent] advisements." (Mosby, supra, 33 Cal.4th at pp. 364-365, fn. omitted.)
This case differs from Mosby only in the fact that defendant testified at trial whereas the defendant in Mosby did not take the stand. From the fact that he testified, defendant would have us infer that he was unaware of his right to remain silent. However, defendant was represented by counsel at trial, and from that fact we can infer that he testified only after he was advised by his attorney that he had the right to remain silent and did not have to testify. From the fact that defendant admitted the prior convictions immediately after a jury trial at which he testified and at which his attorney cross-examined witnesses we can reasonably infer that defendant was aware of his right to remain silent and to confront and cross-examine witnesses. Moreover, from the fact that defendant had three prior felony convictions, one as recent as three years before the current trial, we can also infer that defendant was experienced in the judicial process and thus familiar with his rights. From these facts we can conclude that defendant knowingly and voluntarily admitted the prior conviction allegations, even though the trial court did not expressly advise defendant of two of the rights he would be waiving by his admissions.
Defendant also contends that we must reverse his admission of the section 667.5, subdivision (b) allegation that he was convicted of auto theft in violation of Vehicle Code section 10851 on December 21, 1995, as alleged in the original information, because the amended information, filed the day before defendants trial, alleged that the auto theft conviction occurred on May 7, 1996. Defendant does not deny that he was previously convicted of auto theft. He contends only that the trial court had him admit the prior conviction allegation set out in the original information, rather than the allegation set out in the amended information. As a result, defendant admitted that the date of the conviction was December 21, 1995, rather than May 7, 1996.
Contrary to defendants apparent view, the different dates do not invalidate his admission of the prior conviction. The date defendant suffered the conviction is irrelevant in that it does not affect defendants sentence, and in fact does not appear in any of the sentencing documents. In short, and defendants contrary claim notwithstanding, the relevant fact is that defendant was previously convicted of auto theft and served a term in prison as a result of that conviction. Defendant admitted those facts and therefore we reject defendants claim that we must reverse his admission of the auto theft conviction.
3.
UPPER TERM SENTENCE
The trial court imposed the upper term sentence of four years on count 5, defendants conviction for assault with a deadly weapon in violation of section 245, subdivision (a)(1). In doing so, the trial court relied on various "circumstances in aggravation," including the fact that "the crime involved great violence in the operation of the vehicle, great bodily threat and great bodily harm specifically to the two individuals, the mother and the son . . . . The method of operating this vehicle, this high-speed chase to evade the police, displayed a high degree of cruelty, viciousness, and callousness. There was great disregard for the safety of others. The victims in that vehicle, in the other vehicle that was involved in this collision, were particularly vulnerable." The trial court also cited the aggravating factors that "defendant has engaged in violent conduct which indicates [he is] a serious threat and danger to society," that defendant has three prior felony convictions that "dat[e] back to 1995," that defendant had served a prior prison term, and that defendant was on parole at the time he committed the current crime.
The upper term sentence runs afoul of Cunningham v. California, supra, 127 S.Ct. 856, in which the Supreme Court held that Californias determinate sentencing law violates a defendants Sixth Amendment right to a jury trial to the extent it allows for increased punishment based on facts, other than a prior conviction, which were not found by a jury. Therefore, we will vacate defendants sentence and remand this matter to the trial court for further proceedings consistent with Cunningham v. California, supra.
4.
SECTION 654Defendant contends that the trial court violated section 654, which prohibits multiple punishment for a single act or indivisible course of criminal conduct that violates more than one statute. Defendant contends that the two assault convictions (counts 5 and 6) and the conviction for evading a peace officer (count 3) were committed during an indivisible course of criminal conduct and therefore cannot be punished separately. We disagree.
"Section 654 states, in pertinent part: `An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one . . . . The statute `literally applies only where [multiple] punishment arises out of multiple statutory violations produced by the "same act or omission." [Citation.] However, . . . its protection has been extended to cases in which there are several offenses committed during "a course of conduct deemed to be indivisible in time." [Citation.] [Citations.] [¶] `It is defendants intent and objective, not the temporal proximity of his offenses, which determine whether the transaction is indivisible. [Citations.] . . . [I]f all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once. [Citation.] [Citation.]" (People v. Hicks (1993) 6 Cal.4th 784, 788-789.) "Whether the facts and circumstances reveal a single intent and objective within the meaning of [] section 654 is generally a factual matter . . . ." (People v. Guzman (1996) 45 Cal.App.4th 1023, 1028, citing Neal v. State of California (1960) 55 Cal.2d 11, 17 (Neal).)
Defendant contends that although he committed multiple crimes, he harbored only one intent — to escape from the police — and therefore he engaged in an indivisible course of criminal conduct, which in turn prohibited the trial court from punishing defendant for evading a peace officer (count 3) as well as for the assaults on both occupants of the minivan (counts 5 and 6). Defendants argument does not mention the so-called multiple victim exception that permits separate punishment when a defendant commits multiple acts of violence against more than one victim. (People v. Miller (1977) 18 Cal.3d 873, 885; Neal, supra, 55 Cal.2d at p. 21.)
Interestingly, defendant does not specify the counts on which the trial court should have stayed execution of sentence.
As the Supreme Court explained in Neal, "The purpose of the protection against the multiple punishment is to insure that the defendants punishment will be commensurate with his criminal liability. A defendant who commits an act of violence with the intent to harm more than one person or by a means likely to cause harm to several persons is more culpable than a defendant who harms only one person. For example, a defendant who chooses a means of murder that places a planeload of passengers in danger, or results in injury to many persons, is properly subject to greater punishment than a defendant who chooses a means that harms only a single person. This distinction between an act of violence against the person that violates more than one statute and such an act that harms more than one person is well settled. Section 654 is not `. . . applicable where . . . one act has two results each of which is an act of violence against the person of a separate individual. [Citation.]" (Neal, supra, 55 Cal.2d at pp. 20-21.)
A crime of violence for purposes of the multiple victim exception is "an act of violence against the person, that is . . . an act of violence committed `with the intent to harm or `by means likely to cause harm to a person. [Citations.]" (People v. Hall (2000) 83 Cal.App.4th 1084, 1089.) Assault with a deadly weapon other than a firearm, by means of force likely to produce great bodily is a crime of violence according to the above noted definition. Therefore, section 654 does not prohibit the trial court from punishing defendant for committing assaults on both occupants of the minivan (counts 5 and 6). Because he also harbored the intent to escape and thus evade the police, and did so with "willful [and] wanton disregard for the safety" of other people, the trial court could also impose punishment on count 3, defendants conviction for evading a peace officer in violation of Vehicle Code section 2800.2.
DISPOSITION
Defendants sentence is vacated and that matter is remanded to the trial court for further proceedings consistent with Cunningham v. California, supra. The judgment is otherwise affirmed.
We concur:
Ramirez, P.J.
Richli, J.