Opinion
C083631
04-11-2018
THE PEOPLE, Plaintiff and Respondent, v. STEVEN LEE MORTENSEN, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CM044227)
A jury found defendant Steven Lee Mortensen guilty of driving in willful or wanton disregard for the safety of persons or property while fleeing from a pursuing peace officer (Veh. Code, § 2800.2, subd. (a)) and resisting, delaying, or obstructing a peace officer (Pen. Code, § 148, subd. (a)(1)). In a bifurcated proceeding, he admitted he had served two prior prison terms. (§ 667.5, subd. (b).) The trial court sentenced him to an aggregate term of five years in prison, calculated as follows: the upper term of three years for evading a peace officer, plus two 1-year consecutive terms for the prior prison term enhancements, plus a concurrent term of one year in county jail for resisting a peace officer.
Undesignated statutory references are to the Penal Code.
On appeal, defendant contends that his conviction for resisting a peace officer must be reversed because the crime of resisting a peace officer is a necessarily included offense of the crime of evading a peace officer. He further contends that his concurrent sentences for evading a peace officer and resisting a peace officer constitute multiple punishments in violation of section 654. We affirm the judgment.
FACTUAL BACKGROUND
In view of the issues raised on appeal, we only briefly summarize the relevant facts.
On January 16, 2016, Deputies Chris Dineen and Michael Worch of the Butte County Sheriff's Department were on patrol in Butte County. They were in uniform and driving a marked sport utility vehicle (SUV) with overhead lights. As part of their patrol duties, they were looking for defendant because a warrant had been issued for his arrest.
Around 7:52 a.m., the deputies saw a black Geo Metro with a distinctive sticker in the back window that defendant had previously been seen driving. Deputy Worch activated the SUV's overhead lights and attempted to initiate a traffic stop. The driver of the car, later identified as defendant, did not slow down; instead, he accelerated and drove across the double yellow line toward oncoming traffic. Deputy Worch activated the SUV's siren and followed defendant. As defendant drove toward oncoming traffic, several cars were forced to swerve off the road to avoid a collision. Less than a minute later, defendant drove back to the right side of the road and continued fleeing at speeds exceeding the posted speed limit. During the pursuit, defendant crossed the double yellow line multiple times through "S-turns" in the road. At one point, he also ran a stop sign.
The pursuit lasted around 20 minutes and spanned nine miles. Defendant eventually stopped his car at the end of a dirt road and fled on foot. As he was running away, he turned around and looked directly at Deputies Dineen and Worch. Deputy Worch chased after defendant on foot with his firearm drawn. He ordered defendant to stop running and to get on the ground. Defendant ignored Deputy Worch's commands and continued running down an embankment until he reached a steep drop-off. Defendant then jumped down and disappeared.
DISCUSSION
A. Lesser Included Offense of Evading a Peace Officer
Defendant contends that his conviction for resisting a peace officer must be reversed because the crime of resisting a peace officer is a necessarily included offense of the crime of evading a peace officer. We disagree.
"In California, a single act or course of conduct can lead to convictions 'of any number of the offenses charged.' [Citations.] However, a judicially created exception to this rule prohibits multiple convictions based on necessarily included offenses. [Citations.]" (People v. Ramirez (2009) 45 Cal.4th 980, 984 (Ramirez).) There are two ways of determining whether an offense is a lesser included offense--the statutory elements test or the accusatory pleading test. (People v. Shockley (2013) 58 Cal.4th 400, 404; Ramirez, at pp. 984-985.) " 'Courts should consider [both] the statutory elements and accusatory pleading in deciding whether a defendant received notice, and therefore may be convicted, of an uncharged crime, but only the statutory elements in deciding whether a defendant may be convicted of multiple charged crimes.' " (Ramirez, at p. 985.)
Here, because defendant was convicted of multiple charged crimes, we only consider the statutory elements test to determine whether the crime of resisting a peace officer is a lesser included offense of the crime of evading a peace officer. "Under the 'elements' test, we look strictly to the statutory elements, not to the specific facts of a given case. [Citation.] We inquire whether all the statutory elements of the lesser offense are included within those of the greater offense. In other words, if a crime cannot be committed without also committing a lesser offense, the latter is a necessarily included offense. [Citations.]" (Ramirez, supra, 45 Cal.4th at p. 985.)
Vehicle Code section 2800.2 provides: "(a) If a person flees or attempts to elude a pursuing peace officer in violation of Section 2800.1 and the pursued vehicle is driven in a willful or wanton disregard for the safety of persons or property, the person driving the vehicle, upon conviction, shall be punished by imprisonment in the state prison, or by confinement in the county jail for not less than six months nor more than one year. The court may also impose a fine of not less than one thousand dollars ($1,000) nor more than ten thousand dollars ($10,000), or may impose both that imprisonment or confinement and fine. [¶] (b) For purposes of this section, a willful or wanton disregard for the safety of persons or property includes, but is not limited to, driving while fleeing or attempting to elude a pursuing peace officer during which time either three or more violations that are assigned a traffic violation point count under Section 12810 occur, or damage to property occurs."
Vehicle Code section 2800.1 provides, in relevant part: "(a) Any person who, while operating a motor vehicle and with the intent to evade, willfully flees or otherwise attempts to elude a pursuing peace officer's motor vehicle, is guilty of a misdemeanor punishable by imprisonment in a county jail for not more than one year if all of the following conditions exist: [¶] (1) The peace officer's motor vehicle is exhibiting at least one lighted red lamp visible from the front and the person either sees or reasonably should have seen the lamp. [¶] (2) The peace officer's motor vehicle is sounding a siren as may be reasonably necessary. [¶] (3) The peace officer's motor vehicle is distinctively marked. [¶] (4) The peace officer's motor vehicle is operated by a peace officer, . . . and that peace officer is wearing a distinctive uniform."
To prove that a defendant is guilty of evading a peace officer, the People must prove the following: (1) a peace officer driving a motor vehicle was pursuing the defendant; (2) the defendant, who was also driving a motor vehicle, willfully fled from, or tried to elude, the officer, intending to evade the officer; (3) during the pursuit, the defendant drove with willful or wanton disregard for the safety of persons or property. In addition, the People must prove that all of the following are true: (a) there was at least one lighted red lamp visible from the front of the peace officer's vehicle; (b) the defendant either saw or reasonably should have seen the lamp; (c) the peace officer's vehicle was sounding a siren as reasonably necessary; (d) the peace officer's vehicle was distinctively marked; and (e) the peace officer was wearing a distinctive uniform. (CALCRIM No. 2181; see also Veh. Code, §§ 2800.1, subd. (a), 2800.2; People v. Hudson (2006) 38 Cal.4th 1002, 1007-1008.) There is no express requirement in the statute that the peace officer be lawfully performing his or her duties.
Section 148, subdivision (a)(1) provides, in relevant part: "Every person who willfully resists, delays, or obstructs any . . . peace officer . . . in the discharge or attempt to discharge any duty of his or her office or employment, when no other punishment is prescribed, shall be punished by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment."
"The legal elements of a violation of section 148, subdivision (a) are as follows: (1) the defendant willfully resisted, delayed, or obstructed a peace officer, (2) when the officer was engaged in the performance of his or her duties, and (3) the defendant knew or reasonably should have known that the other person was a peace officer engaged in the performance of his or her duties. [Citations.]" (People v. Simons (1996) 42 Cal.App.4th 1100, 1108-1109 (Simons); see also CALCRIM No. 2656.) "The offense is a general intent crime, proscribing only the particular act (resist, delay, obstruct) without reference to an intent to do a further act or achieve a future consequence." (In re Muhammed C. (2002) 95 Cal.App.4th 1325, 1329.) "Defendant cannot be convicted of an offense against an officer engaged in the performance of official duties unless the officer was acting lawfully at the time." (Simons, at p. 1109.)
Unlike section 148, subdivision (a)(1) of the Penal Code, sections 2800.1 and 2800.2 of the Vehicle Code do not include language requiring that the officer be performing a lawful duty, and the absence of such language is dispositive. In Simons, the court considered whether section 148, subdivision (a) (resisting, delaying, or obstructing a peace officer), is a lesser-included offense of section 417.8 (exhibiting a deadly weapon to resist or prevent arrest or detention). (Simons, supra, 42 Cal.App.4th at p. 1108.) In concluding that section 148, subdivision (a) was not a lesser included offense of section 417.8, the court determined that a defendant violates section 417.8 by exhibiting a deadly weapon with the intent to prevent any arrest, lawful or unlawful, because there is no requirement in section 417.8 that the officer be engaged in the performance of his or her duties. (Simons, at p. 1109.) In reaching this conclusion, the court explained, in part, as follows: "The chief evil to be avoided by criminalizing exhibition of weapons is the potential for further violence, not only by the defendant, but also by others in response to the defendant's action. . . . The mere act of exhibiting a weapon, while harmless per se, is dangerous by virtue of the violence it may engender. When a defendant violates section 417.8, the potential for violence is the same whether the initiating arrest was lawful or unlawful. In this context, the Legislature has chosen to shift the controversy over the legality of the arrest from the streets to a civil courtroom. A defendant may pursue a civil remedy for unlawful arrest, but he may not exhibit a deadly weapon to avoid that arrest." (Id. at pp. 1109-1110.) The court went on to explain that the Legislature could have easily included the " 'engaged in duty' " requirement for section 417.8 as it did in multiple similar statutes, and that "the Legislature's failure to include in section 417.8 an element that the officer be engaged in the performance of official duties or that the arrest be lawful must be construed as an intentional election to forego that requirement." (Simons, at p. 1110.)
We find the analysis in Simons persuasive. When a person flees from a pursuing peace officer while operating a motor vehicle and drives in a willful or wanton disregard for the safety of persons or property, the person's conduct is dangerous and the potential for harm to persons or property is the same regardless of whether the officer had a lawful basis to stop the person. Further, the Legislature could have easily included the express requirement in Vehicle Code section 2800.1 that a peace officer must be lawfully performing his or her duties. We construe the Legislature's failure to do so as an intentional election to forego such a requirement, particularly since numerous other statutes involving violence against or resistance to government officers include the requirement that the officer be engaged in the performance of his or her official duties. (See, e.g., §§ 69 [resisting or deterring an executive officer by threat or violence], 241, subd. (c) [assault on a peace officer], 243, subds. (b) & (c) [battery on a peace officer], 245, subds. (c) & (d) [assault on a peace officer with a deadly weapon or force likely to produce great bodily injury], 417, subd. (c) [brandishing a firearm in the presence of a peace officer].)
We reject defendant's contention that his conviction for resisting a peace officer must be reversed because his crimes of evading a peace officer and resisting a peace officer arose out of a single act or a single course of indivisible conduct. Even assuming for the sake of argument that defendant's conduct in this case amounted to a single act or a single, indivisible course of conduct, multiple convictions for such conduct are not prohibited. "In general, a person may be convicted of, although not punished for, more than one crime arising out of the same act or course of conduct. 'In California, a single act or course of conduct by a defendant can lead to convictions "of any number of the offenses charged." [Citations.]' [Citation.] Section 954 generally permits multiple conviction. Section 654 is its counterpart concerning punishment. It prohibits multiple punishment for the same 'act or omission.' When section 954 permits multiple conviction, but section 654 prohibits multiple punishment, the trial court must stay execution of sentence on the convictions for which multiple punishment is prohibited." (People v. Reed (2006) 38 Cal.4th 1224, 1226-1227.)
B. Section 654
Defendant contends the trial court erred in failing to the stay sentence on his conviction for resisting a peace officer under section 654. According to defendant, his acts of fleeing in his car and on foot constituted a single act or a single course of conduct--flight--and, therefore, he cannot be punished for both evading a peace officer and resisting a peace officer. We disagree.
Section 654 provides, in relevant 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." (§ 654, subd. (a).) The statute "does not allow any multiple punishment, whether concurrent or consecutive." (People v. Deloza (1998) 18 Cal.4th 585, 594, italics omitted.)
"Section 654 precludes multiple punishments for a single act or indivisible course of conduct. [Citation.]" (People v. Hester (2000) 22 Cal.4th 290, 294.) " 'Few if any crimes, however, are the result of a single physical act. "Section 654 has been applied not only where there was but one 'act' in the ordinary sense . . . but also where a course of conduct violated more than one statute and the problem was whether it comprised a divisible transaction which could be punished under more than one statute within the meaning of section 654." [Citation.]' [Citation.]" (People v. Latimer (1993) 5 Cal.4th 1203, 1208.)
" '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 the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.' " (People v. Beamon (1973) 8 Cal.3d 625, 637.)
But even if a course of conduct is "directed to one objective," it may "give rise to multiple violations and punishment" if it is "divisible in time." (People v. Beamon, supra, 8 Cal.3d at p. 639, fn. 11.) Where the defendant's acts are "temporally separated," they "afford the defendant opportunity to reflect and to renew his or her intent before committing the next [offense], thereby aggravating the violation of public security or policy already undertaken." (People v. Gaio (2000) 81 Cal.App.4th 919, 935.)
"The question whether section 654 is factually applicable to a given series of offenses is for the trial court, and the law gives the trial court broad latitude in making this determination. Its findings on this question must be upheld on appeal if there is any substantial evidence to support them." (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312.) "In the absence of an explicit ruling by the trial court at sentencing, we infer that the court made the finding appropriate to the sentence it imposed, i.e., either applying section 654 or not applying it." (People v. Mejia (2017) 9 Cal.App.5th 1036, 1045.)
Here, there was no discussion at sentencing as to whether section 654 applied to defendant's conviction for resisting a peace officer. Accordingly, we must affirm the sentence if an implied finding that section 654 is inapplicable is supported by substantial evidence. (People v. Mejia, supra, 9 Cal.App.5th at p. 1045.)
At sentencing, defendant did not argue that section 654 applied to his conviction for resisting a peace officer. Nor did he object to the concurrent sentence imposed for this conviction. However, defendant's claim is nonetheless reviewable on appeal. (People v. Hester, supra, 22 Cal.4th at p. 295 ["Ordinarily, a section 654 claim is not waived by failing to object below"]; see also People v. Perez (1979) 23 Cal.3d 545, 550, fn. 3 ["Errors in the applicability of section 654 are corrected on appeal regardless of whether the point was raised by objection in the trial court or assigned as error on appeal"].) --------
We conclude the trial court did not err in failing to stay sentence on defendant's conviction for resisting a peace officer. Substantial evidence supports the trial court's implied finding that section 654 is inapplicable. Here, defendant's reckless driving was just one of the means by which he resisted arrest. After stopping his car, defendant did not surrender to the pursuing officers. Instead, he fled on foot. Deputy Worch chased after him and ordered him to stop but he refused to do so. Defendant's flight on foot was separate in time from his reckless driving and separate punishment does not violate section 654. Defendant had the opportunity to reflect and renew his intent to flee from the officers prior to getting out of his car and running away on foot. His decision to flee on foot aggravated the violation of public security already undertaken when he drove his car in a willful or wanton disregard for the safety of persons or property.
DISPOSITION
The judgment is affirmed.
/s/_________
Blease, Acting P. J. We concur: /s/_________
Hull, J. /s/_________
Duarte, J.