Opinion
E064872
06-21-2017
THE PEOPLE, Plaintiff and Respondent, v. DANIEL ALBERTO MEJIA, Defendant and Appellant.
Esther K. Hong, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Kelley Johnson, Deputy Attorneys General, for 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF1501451) OPINION APPEAL from the Superior Court of Riverside County. Becky Dugan and Elisabeth Sichel, Judges. Affirmed as modified. Esther K. Hong, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Kelley Johnson, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
A jury found defendant and appellant Daniel Alberto Mejia guilty of carjacking (Pen. Code, § 215, subd. (a); count 1), evading a peace officer by reckless driving (Veh. Code, § 2800.2; count 2), possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1); count 3), and unlawful possession of ammunition (§ 30305, subd. (a); count 4). The jury also found true that defendant personally used a firearm during the commission of count 1 (§ 12022.53, subd. (b)). In a bifurcated proceeding, the trial court found true that defendant had suffered a prior serious felony conviction (§ 667, subd. (a)) and a prior strike conviction (§§ 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)).
All future statutory references are to the Penal Code unless otherwise stated.
After the trial court denied defendant's motion to dismiss his prior strike conviction, defendant was sentenced to a total term of 26 years four months in state prison with credit for time served as follows: the middle term of five years on count 1, doubled to 10 years due to the prior strike conviction; a consecutive 10-year term for the firearm use enhancement attached to count 1; a consecutive term of one year four months on count 2; a consecutive term of five years for the prior serious felony conviction; a concurrent term of four years on count 3; and a concurrent term of four years on count 4.
Defendant appeals from the judgment. On appeal, defendant argues his sentences on count 2 (evading a police officer) and count 4 (unlawful possession of ammunition) should have been stayed pursuant to section 654. We agree and modify the judgment. In all other respects, we affirm.
II
FACTUAL BACKGROUND
Around 1:00 a.m. on April 3, 2015, Jamie D. was driving her friend's Chevrolet Trailblazer to a bail bonds business with defendant, her uncle, and her friend to post bail for her boyfriend when she was pulled over by Riverside City Police Officer Maier for expired registration and altered license plates. Jamie knew defendant only as "Littles" for about a month or two, and met defendant through her boyfriend. Defendant was seated in the front passenger seat.
Before Jamie pulled into a gas station on 14th Street in the city of Riverside, defendant told Jamie not to stop, to " 'Get the fuck out of the car, bitch,' " and to " 'Get out. Jump out.' " Jamie saw something in defendant's hand. Jamie got out of the car and defendant slid into the driver's side of the vehicle. Defendant then sped out of the gas station parking lot and Officer Maier pursued the vehicle.
Meanwhile, Riverside Police Officers Cunningham and Henesy arrived at the gas station and interviewed Jamie. A tape recording of this interview was played for the jury. During the interview, Jamie stated that defendant grabbed the side of her sweater, lunged at her, said " 'Get the fuck out of the seat,' " and pushed her out of the vehicle. Jamie also reported that defendant had a gun in his hand and pointed it at her back.
A transcript of the recording was also admitted into evidence.
At trial, Jamie denied reporting that she saw a gun in defendant's hand or that defendant pushed her out of the vehicle.
As Officer Maier and several other officers pursued defendant's vehicle, defendant drove at high speeds in an erratic manner and made several illegal driving maneuvers. The officers deployed spike strips two separate times. When the tires of the vehicle were severely damaged, defendant stopped the vehicle in Menifee, about 50 minutes after the police chase began.
During the pursuit, defendant threw a .38-caliber revolver out of the window. Officers later recovered the revolver. Additionally, during the chase, defendant allowed the two remaining passengers in the car to exit the vehicle, but immediately sped away after they exited.
A search of the vehicle revealed three rounds of .38-caliber ammunition. Two additional rounds were also found outside the driver's side door. Officers located a holster with a pressed image of a gun that matched the recovered revolver in the vehicle. When an officer showed the recovered revolver to Jamie and asked her if it was the weapon defendant had used during the carjacking, Jamie responded " 'Yes.' "
In defense, defendant presented evidence to refute the claim defendant had a gun in his possession during the incident. An officer testified that she interviewed one of the passengers after he got out of the vehicle. During the interview, the passenger told the officer that he did not know why defendant was not stopping and that there were no weapons in the vehicle. Jamie testified that she felt extreme pressure from the police during her interview and that they were putting words in her mouth. She invoked her Fifth Amendment rights when asked if she lied to the police. The defense also presented evidence from a senior forensic technician who testified that no fingerprints were found on the recovered revolver, five live rounds of ammunition, or the plastic gun holster. The technician explained that a majority of evidence does not have fingerprints and that approximately 10 to 15 percent do have fingerprints.
III
DISCUSSION
In pronouncing sentence, the trial court did not apply section 654 to stay the sentence on any count. The court sentenced defendant to a total term of 26 years four months in state prison as follows: the middle term of five years for the carjacking offense (count 1), doubled to 10 years due to the prior strike; a consecutive 10-year term for the firearm use enhancement attached to count 1; a consecutive term of one year four months for the evading offense (count 2); a consecutive term of five years for the prior serious felony; a concurrent term of four years for the felon in possession of a firearm offense (count 3); and a concurrent term of four years for the unlawful possession of ammunition offense (count 4). Defendant argues this was error and his punishments on count 2 for evading a police officer and count 4 for unlawful possession of ammunition should be stayed pursuant to section 654.
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." Section 654 protects against multiple punishment rather than multiple conviction. (People v. Deloza (1998) 18 Cal.4th 585, 591-592 (Deloza); People v. Harrison (1989) 48 Cal.3d 321, 335 (Harrison).) Its purpose " 'is to insure that the defendant's punishment will be commensurate with his criminal liability.' [Citation.]" (People v. Norrell (1996) 13 Cal.4th 1, 6 (Norrell), superseded in part by statute on another ground as stated in People v. Kramer (2002) 29 Cal.4th 720, 722.) A defendant thus may not be punished for two separate crimes that arise either out of a single act or out of an indivisible transaction (People v. Ortega (1998) 19 Cal.4th 686, 693; People v. James (1977) 19 Cal.3d 99, 119-120), unless the defendant's violent actions injure more than one victim (Deloza, at p. 592).
Section 654 does not bar multiple punishment where temporal separation of offenses afford a defendant an opportunity to reflect and to renew his or her intent before committing the next offense. (People v. Gaio (2000) 81 Cal.App.4th 919, 935.) Rather, section 654 precludes multiple punishments for a single act or indivisible course of conduct. (People v. Hester (2000) 22 Cal.4th 290, 294.) In People v. Miller (1977) 18 Cal.3d 873 (Miller), overruled on other grounds as stated in People v. Oates (2004) 32 Cal.4th 1048, 1067-1068, footnote 8, our Supreme Court explained that "section 654 is applicable to 'limit punishment for multiple convictions arising out of either an act or omission or a course of conduct deemed to be indivisible in time, in those instances wherein the accused entertained a principal objective to which other objectives, if any, were merely incidental.' [Citation.]" (Miller, at p. 885, italics omitted.)
Whether a course of conduct is indivisible for purposes of section 654 depends on the intent and objective of the actor. (Norrell, supra, 13 Cal.4th at p. 6; Harrison, supra, 48 Cal.3d at p. 335.) Thus, if all of the offenses were incident to one objective, the defendant may be punished for only one of them. (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) "On the other hand, if the evidence discloses that a defendant entertained 'multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.' [Citations.]" (In re Adams (1975) 14 Cal.3d 629, 634.)
The defendant's intent and objective are factual questions for the trial court. (People v. Coleman (1989) 48 Cal.3d 112, 162.) The court's finding, whether express or implied, will be upheld on appeal if supported by substantial evidence. (People v. Osband (1996) 13 Cal.4th 622, 730-731; People v. Powell (2011) 194 Cal.App.4th 1268, 1296.) We review the trial court's determination in the light most favorable to the defendant, and we presume the existence of every fact the trial court could have reasonably deduced from the evidence. (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)
A. Failure to Stay Punishment for Evading Police (Count 2)
Defendant argues his sole intent and objective in committing both the carjacking (count 1) and the evasion of the officers (count 2) was to evade or flee from the police. The People reply that defendant's criminal acts in committing counts 1 and 2 were separated by sufficient time such that defendant had time to reflect between the commission of each crime. The People further argue that the multiple victim exception to section 654 applies to counts 1 and 2 because Jamie was the victim of the carjacking in count 1 and the pursuing officers and motorists endangered by defendant's evasive driving were the victims of the evading offense in count 2.
It is well settled law that " 'the crime of robbery is not complete until the robber has won his way to a place of temporary safety.' " (People v. Fierro (1991) 1 Cal.4th 173, 226, disapproved on another ground in People v. Letner and Tobin (2010) 50 Cal.4th 99, 205-207; see People v. Flynn (2000) 77 Cal.App.4th 766, 772.) Carjacking is defined in the same general terms as robbery—carjacking is the felonious taking of a motor vehicle by force or fear (§ 215, subd. (a)), and robbery is the felonious taking of personal property by force or fear (§ 211). Our Supreme Court in People v. Lopez (2003) 31 Cal.4th 1051 (Lopez) explained that "the carjacking statute's language and legislative history—reflected in the author's explanation for the new crime—demonstrate that carjacking is a direct offshoot of robbery and that the Legislature modeled the carjacking statute on the robbery statute. The definition in the carjacking statute (§ 215, subd. (a)) tracks the language in the robbery statute (§ 211). 'Both involve "the felonious taking" of property that is "in the possession of another" person. Both require that the taking be from the "person or immediate presence" of the person. Both are "accomplished by means of force or fear." ' [Citation.]" (Lopez, at p. 1059.) Accordingly, no persuasive reason appears for applying a different rule in determining when carjacking is complete than the rule applied in robbery cases.
Although, as the People point out, defendant had stopped briefly to allow the other passengers to exit the vehicle, defendant clearly had not won his way to a place of temporary safety when he committed the violation of Vehicle Code section 2800.2. Additionally, there is no evidence in the record to suggest that during these momentary stops defendant reflected and renewed his intent and objective. Rather, it appears defendant's continuous intent and objective was to flee from the police. As the trial court noted, defendant continued to flee after each stop. Section 654 prohibits punishment for both the carjacking and evading if they were committed pursuant to the same intent and objective of accomplishing the evading. Here, it would be difficult to conclude that defendant's actions in taking the vehicle from Jamie were not reasonably necessary to the accomplishment of the offense of evading.
The People argue that the multiple victim exception to section 654 applies in this case because the victim of the carjacking was Jamie and the victims of the evading were the pursuing officers and the motorists endangered by defendant's evasive driving. Although the Supreme Court has recognized that section 654 does not prohibit separate punishment "for a single criminal transaction where crimes of violence were committed against different persons" (People v. Bauer (1969) 1 Cal.3d 368, 377), the multiple victim exception does not apply in this case.
Whether an offense can support separate punishment under the multiple victim exception depends on whether the offense is "defined by statute to proscribe 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." (People v. Hall (2000) 83 Cal.App.4th 1084, 1089, italics omitted, disapproved on other grounds by People v. Correa (2012) 54 Cal.4th 331, 343-344.) Carjacking plainly meets these requirements. It is defined by statute as a taking of a vehicle by means of force or fear. (§ 215, subd. (a).) However, a violation of Vehicle Code section 2800.2 does not meet these requirements. (See, e.g., People v. Garcia (2003) 107 Cal.App.4th 1159, 1163 [" 'A defendant may properly be convicted of multiple counts for multiple victims of a single criminal act only where the act prohibited by the statute is centrally an "act of violence against the person.". . . [¶] [F]elony evading, as defined by the Legislature, is not a crime of violence."]; People v. Howard (2005) 34 Cal.4th 1129, 1132-1135, 1138-1139 (Howard) [a violation of Vehicle Code section 2800.2 is not an inherently dangerous felony for purposes of second degree felony murder].) Vehicle Code section 2800.2, as defined by statute, is not a crime of violence for purposes of the multiple victim exception to section 654. (See, e.g., Howard, at pp. 1138-1139.) Therefore, contrary to the People's contention, the multiple victim exception does not apply in this case.
Based on the foregoing, defendant's punishment for evading (count 2) should be stayed pursuant to section 654.
B. Count 4 - Possession of Ammunition
Defendant also argues that his concurrent four-year term on count 4 for unlawful possession of ammunition must be stayed pursuant to section 654 because his possession of a firearm (count 3) and unlawful possession of ammunition (count 4) arose from a single indivisible course of conduct.
In People v. Jones (2012) 54 Cal.4th 350 (Jones), police officers searched the car that the defendant was driving and found a loaded .38-caliber revolver that was not registered to him. The defendant told the officers that he bought the gun three days earlier for protection. (Id. at p. 352.) The defendant was convicted of possessing a firearm by a felon, carrying a readily accessible concealed and unregistered firearm, and carrying an unregistered firearm in public. (Ibid.) The defendant was separately sentenced for each offense. Our Supreme Court held "that a single possession or carrying of a single firearm on a single occasion may be punished only once under section 654." (Id. at p. 357.) It further concluded that "[s]ection 654 prohibits multiple punishment for a single physical act that violates different provisions of law." (Id. at p. 358.)
Jones, supra, 54 Cal.4th at p. 357 cited People v. Lopez (2004) 119 Cal.App.4th 132, on which defendant relies. In People v. Lopez, supra, 119 Cal.App.4th 132, the defendant was found in possession of a loaded handgun following a patdown search. (Id. at p. 135, 137.) As a result, the defendant was convicted of both unlawful possession of a firearm and unlawful possession of ammunition. (Id. at p. 134.) The appellate court held that the defendant could not be sentenced for both offenses, explaining: "[The defendant's] obvious intent was to possess a loaded firearm. [¶] In resolving section 654 issues, our California Supreme Court has recently stated that the appellate courts should not 'parse[] the objectives too finely.' [Citation.] To allow multiple punishment for possessing ammunition in a firearm would, in our judgment, parse the objectives too finely. While there may be instances when multiple punishment is lawful for possession of a firearm and ammunition, the instant case is not one of them. Where, as here, all of the ammunition is loaded into the firearm, an 'indivisible course of conduct' is present and section 654 precludes multiple punishment." (Id. at p. 138.)
In People v. Sok (2010) 181 Cal.App.4th 88 (Sok), the defendant fired shots at a vehicle and later at a residence. (Id. at p. 91.) Officers searched the defendant's car and found a loaded nine-millimeter Glock pistol in the trunk. "[B]ased on bullet casings recovered from each of the crime scenes, the bullets fired in both incidents came from" the gun found in the defendant's car. (Ibid.) The defendant was convicted of two unlawful firearm possession counts and two unlawful ammunition possession counts. (Id. at p. 100.) The court imposed concurrent two-year sentences for each of the two unlawful firearm possession counts and two unlawful ammunition possession counts. (Id. at p. 93.) After noting that the Attorney General had conceded the issue, the appellate court stated that the trial court erred in failing to stay the sentences for the two unlawful ammunition possession counts under section 654, because: "[T]he ammunition at issue in those two counts was either loaded into [the defendant's] handgun or had been fired from that gun. There is no evidence in the record that would support the trial court's implied factual finding that [the defendant] had different or multiple objectives in possessing the loaded firearm and possessing the ammunition in the gun itself." (Sok, at p. 100, fn. omitted.)
In this case, defendant was convicted of possession of a revolver (count 3) and possession of ammunition (count 4). As to count 4, possession of ammunition, the prosecutor argued: "It has essentially all the same elements, except it goes to possession of ammunition and not just the firearm. [¶] So the defendant possessed ammunition. The defendant knew he possessed it, and the defendant had previously been convicted of the felony. . . . He possessed the ammunition and he knew he had it because that's what was loaded in his .38 caliber revolver." It appears the jury found defendant guilty on count 4 based on the People's theory of the ammunition loaded in the revolver. The People did not argue an alternative theory for the possession of ammunition offense, such as based on the three rounds of ammunition found in the vehicle or the two rounds found outside the driver's door of the vehicle. The jury did find that defendant possessed the revolver. Therefore, following the prosecutor's reasoning, the jury would have found that defendant possessed ammunition simply based on his possession of the loaded revolver. Based on this, there is no factual distinction between this case and the two cases discussed above, People v. Lopez, supra, 119 Cal.App.4th 132, and Sok, supra, 181 Cal.App.4th 88. There is no evidence in the record that would support a finding that defendant had different or multiple objectives in possessing the loaded revolver and possessing the ammunition. Defendant's sole intent was to possess the loaded revolver, which contained the ammunition. As to the three rounds of ammunition found in the vehicle and two found outside the driver's side door, even if the jury based the verdict on these acts, there was nothing in the record to support that defendant had different or multiple objectives in possessing the loaded revolver and possessing the ammunition belonging to the revolver.
We note that a trial court in its sentencing discretion may base its decision on any facts that are in evidence at trial, without regard to the verdicts, unless some circumstance in those verdicts forecloses the trial court from doing so. (People v. McCoy (2012) 208 Cal.App.4th 1333, 1337-1338 (McCoy).) In People v. Siko (1988) 45 Cal.3d 820, for example, both the charging document and the verdicts had specified two particular sex offenses as the basis for generic charges of lewd and lascivious conduct. Neither the closing argument nor the instructions had suggested any other basis for the molestation counts. (Id. at p. 826.) "Siko is thus authority that where there is a basis for identifying the specific factual basis for a verdict, a trial court cannot find otherwise in applying section 654." (McCoy, at p. 1339.) Where there is not a basis for identifying the specific factual basis for a verdict, however, the trial court is not foreclosed from considering all the available evidence in making its decision under section 654. (Ibid.; see People v. Centers (1999) 73 Cal.App.4th 84, 101-102 ["the trial court is entitled to make any necessary factual findings not already made by the jury" and thus "could properly find multiple victims" (a finding for which there was substantial evidence) and impose punishment for the burglary and enhancement in connection with one of the occupants of the apartment as well as the kidnapping of the other].)
In the present case, unlike in McCoy, supra, 208 Cal.App.4th 1333, the manner in which the case was charged and tried and the prosecutor's argument prevented the trial court from considering all the evidence adduced at trial to make its sentencing decision under section 654. As discussed above, the prosecutor specifically argued that the jury would have to find that defendant possessed ammunition if the jury simply found that defendant possessed the loaded firearm. The jury in this case did in fact find defendant guilty of possessing the loaded firearm. Hence, under the prosecution's theory, the jury automatically had to find defendant guilty of possession of ammunition.
Based on the foregoing, we find that the trial court erred in failing to stay the sentence on count 4 for possession of ammunition under section 654.
IV
DISPOSITION
The judgment is modified to reflect that defendant's sentences on count 2 for evading a police officer and on count 4 for unlawful possession of ammunition are stayed pursuant to section 654.
The trial court is directed to prepare an amended abstract of judgment and to forward a certified copy to the Department of Corrections and Rehabilitations (§§ 1213, 1216). In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: RAMIREZ
P. J. McKINSTER
J.