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People v. Rodrigues

California Court of Appeals, Third District, Placer
Sep 9, 2008
No. C055864 (Cal. Ct. App. Sep. 9, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. MARIO FERNANDO FELIX RODRIGUES, Defendant and Appellant. C055864 California Court of Appeal, Third District, Placer September 9, 2008

NOT TO BE PUBLISHED

Super. Ct. No. 62067383

BLEASE, Acting P. J.

A jury convicted defendant Mario Rodrigues of two counts of transportation of a controlled substance (Health & Saf. Code, § 11379, subd. (a); counts four [methamphetamine] and five [ecstasy]) and one count of each of the following misdemeanor offenses: driving under the influence of a drug (Veh. Code, § 23152, subd. (a); count one), leaving the scene of an accident (Veh. Code, § 20002, subd. (a); count two), being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a); count three) and resisting, obstructing or delaying an officer (Pen. Code, § 148, subd. (a)(1); undesignated section references are to this code; count eight). In bifurcated proceedings, the trial court found defendant’s prior conviction for possession of cocaine base for sale to be true (Health & Saf. Code, §§ 11351.5, 11370.2, subd. (c)).

The court sentenced defendant to state prison for an aggregate term of seven years, that is, the upper term of four years for count four (transportation of methamphetamine) plus three years for the prior drug conviction. The court also imposed concurrent six-month jail terms for each of the misdemeanor offenses.

Defendant appeals. He contends (1) section 654 barred separate punishment for leaving the scene (count two) and resisting (count eight) because the offenses were committed in a single continuous course of conduct and (2) the trial court’s imposition of the upper term for count four contravenes Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856] (Cunningham). We agree that section 654 barred separate punishment for leaving the scene and resisting but reject defendant’s challenge to the upper term imposed for transportation of methamphetamine (count four). We find another error in sentencing. The trial court never expressly sentenced on count five, transportation of ecstasy. No remand is required under the circumstances but amendment of the abstract of judgment is necessary.

FACTS

About 8:35 a.m. on February 3, 2007, Roseville Police Officer Brian Lewis, a motorcycle traffic officer, responded to a call of suspicious circumstances involving a gray car. While traveling to the area with his lights on and his siren intermittently sounding, Officer Lewis saw the gray car traveling northbound on Roseville Parkway and made a U-turn at an intersection to follow. The gray car sped up. At the next intersection where the traffic light was red for northbound traffic, the driver of the gray car put on the brakes but the car slid into the intersection and hit two other cars. Defendant got out of the driver’s door of the gray car as it continued to roll through the intersection; he fled on foot. As defendant ran towards a shopping center, defendant looked back multiple times and made eye contact with the officer who was in pursuit. Defendant ran into a store. The officer parked his motorcycle. When the officer pointed his gun at defendant who stood at the glass door, defendant put his hands up. Officer Lewis and other officers ordered defendant at gunpoint to get on the floor of the store. Defendant did so. He yelled, rambled and talked nonstop. He claimed that he was on methamphetamine and about to “freak out.” He was unable to carry on a rational or coherent conversation with Officer Fox who had arrived to assist in the arrest. Defendant was sweating all over his torso and had a strong chemical odor emitting from his breath, suggesting he was under the influence of methamphetamine. When seated in a patrol car, defendant refused to cooperate in a check of his pupils for dilation.

A search of defendant’s pant pocket revealed an envelope containing .22 grams of methamphetamine. A thorough search of defendant at the jail revealed a plastic bag with 23 blue pills weighing 5.83 grams and containing ecstasy and ketamine and one orange pill weighing 0.26 grams and containing methamphetamine. Defendant’s blood tested positive for amphetamine and methamphetamine.

DISCUSSION

I

Defendant contends that the six-month concurrent term imposed for leaving the scene (count two) must be stayed pursuant to section 654 in that he was punished for resisting (count eight). He argues that the two offenses were part of a continuous course of conduct with a single criminal objective, that is, to escape capture by the police. We agree. Under the facts and circumstances of this case, we conclude that section 654 barred punishment for both offenses.

Section 654 provides that “[a]n 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.”

Although defendant did not object to concurrent sentencing on these counts, the issue is not forfeited. “This is an exception to the general rule that only those claims properly raised and preserved by the parties are reviewable on appeal. This exception is not required by the language of section 654, but rather by case law holding that a court acts in excess of its jurisdiction and imposes an unauthorized sentence when it fails to stay execution of a sentence under section 654.” (People v. Hester (2000) 22 Cal.4th 290, 295.)

“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 of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.” (Neal v. State of California (1960) 55 Cal.2d 11, 19.) This analysis is applicable to crimes involving one physical act and to an indivisible course of conduct which violates more than one statute. (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) “[M]ultiple punishment also may be imposed where the defendant commits two crimes in pursuit of two independent, even if simultaneous, objectives.” (People v. Douglas (1995) 39 Cal.App.4th 1385, 1393.) The trial court’s factual determination that a defendant held multiple criminal objectives will be upheld on appeal if supported by substantial evidence. (People v. Herrera (1999) 70 Cal.App.4th 1456, 1466.)

Defendant appears to frame the issue as whether defendant’s leaving the scene of the accident involving two other drivers was divisible from his resisting the police. In support of his argument that the offenses were part of an indivisible course of conduct, defendant relies upon the theory of the prosecution with respect to the resisting offense as stated in closing argument. The prosecutor argued: “Obviously, Officer Lewis was performing his duties. He had observed a traffic accident occur right in front of him and he observed the defendant jump out of a moving car. The defendant resisted, obstructed or delayed Officer Lewis in the performance or attempted performance of his duties, and he delayed and obstructed Officer Lewis by running away. [¶] If he had stayed there right on the scene, provided his information as he was supposed to, he would not have been in violation of this, but because the defendant fled from Officer Lewis, no matter how brief or how short a distance, he delayed the officer and obstructed him in the performance of his duties.”

Defendant cites People v. Martin (2005) 133 Cal.App.4th 776 (Martin) and People v. Martinez (2007) 156 Cal.App.4th 851 (Martinez).

Martin found no error in the imposition of concurrent sentences for battery on a peace officer and resisting arrest, reasoning that although the defendant committed the crimes in close temporal proximity with a single criminal objective, that is, to free himself, the multiple-victim exception applied. (133 Cal.App.4th at pp. 779-783.) Martinez concluded that the trial court erred in imposing concurrent sentences for driving with a blood alcohol content of 0.08 percent or more and two counts of driving under the influence with three or more priors, having been sentenced for driving under the influence with a prior, reasoning that the crimes involved a single course of conduct, that is, the defendant was driving the car. But Martinez concluded defendant was properly punished for driving under the influence and driving with a suspended license, reasoning that he was punished for two independent acts, one of driving while intoxicated and the other driving with an invalid license. (156 Cal.App.4th at p. 857.)

In support of his argument that the multiple victim exception does not apply, defendant argues that neither leaving the scene nor resisting were crimes of violence. The Attorney General does not argue otherwise. “‘[T]here is a “multiple-victim” exception to section 654. Under this exception, “even though a defendant entertains but a single principal objective during an indivisible course of conduct, he may be convicted and punished for each crime of violence committed against a different victim.” [Citations.] The reason for the multiple victim exception is that “when a defendant ‘“commits an act of violence with the intent to harm more than one person or by means likely to cause harm to several persons,” his greater culpability precludes application of section 654.’” [Citation.]’ [Citations.]” (People v. Centers (1999) 73 Cal.App.4th 84, 99.) We agree the multiple-victim exception does not appear to apply to the offenses at issue here.

Citing People v. Jones (2002) 103 Cal.App.4th 1139, the Attorney General responds that defendant entertained multiple objectives, that is, to delay the officer in the performance of his duties after the accident and to avoid responsibility for the accident by running away from the accident scene without contacting the other drivers. Citing People v. Kwok (1998) 63 Cal.App.4th 1236, the Attorney General also argues that defendant had an opportunity to reflect between leaving the scene and resisting and each offense created a new risk of harm.

Jones involved possession of a gun simultaneously with the offense of shooting at an inhabited dwelling. Because there was evidence showing that the defendant possessed the gun before the shooting crime, section 654 did not bar separate punishment. However, Jones noted that where the evidence shows the possession was fortuitous, section 654 would bar separate punishment. (103 Cal.App.4th at pp. 1142-1147.)

In Kwok, the defendant was convicted of two counts of burglary and one count of assault. The defendant entered the victim’s home twice, nine days apart. The second time, defendant assaulted the victim. The trial court sentenced defendant to state prison for the assault but stayed the sentence for the burglary which occurred the same day as the assault. The court imposed a consecutive term for the burglary which occurred nine days before the assault/burglary. The defendant argued that section 654 barred punishment for the first burglary because it was part of an indivisible course of conduct. Although the first entry allowed the defendant to make a copy of the key to the victim’s home in order to gain entry the second time, Kwok found that section 654 did not bar separate punishment since the acts were divisible in time, each entry created a new risk of harm and each entry was an independent violation or separate offense. (63 Cal.App.4th at pp. 1241, 1252-1257.)

We conclude that insufficient evidence supports the trial court’s implied determination that section 654 did not apply to sentencing for counts two and eight. We reject the Attorney General’s claim that defendant entertained multiple objectives, that is, to delay the officer after the accident and to avoid responsibility for the accident by running away from the officer. The Supreme Court has warned against “pars[ing] the objectives too finely.” (People v. Britt (2004) 32 Cal.4th 944, 953.) The prosecutor’s theory was that defendant delayed the officer when defendant fled from the scene of the accident, and the officer had to chase him into a shopping center. The evidence shows that defendant’s intent and objective was the same for both offenses, that is, to avoid capture; delaying the officer was incidental to his conduct of fleeing from the scene of the accident. Defendant crashed his vehicle in the intersection, jumped out while the car was still moving and fled towards the shopping center, looking back multiple times and making eye contact with the officer. Under these facts, defendant had a single intent and objective.

Defendant further contends that imposition of separate punishment for counts two and eight violated his federal constitutional right to due process in that “[t]he trial court provided no justification for this action and none appears to exist.” We need not discuss this point in view of our conclusion that insufficient evidence supports the trial court’s imposition of separate punishment for resisting and leaving the scene.

The punishment for resisting (count eight) provided up to one year in county jail while the punishment for leaving the scene (count two) provided up to six months. We will order the six-month concurrent term imposed for leaving the scene stayed because resisting provided for the “longest potential term of imprisonment . . . .” (§ 654; People v. Kramer (2002) 29 Cal.4th 720.)

II

In imposing the upper term for the transportation offense, the court found the following factors in aggravation: defendant’s prior criminal history, which included three prior felony convictions, his unsatisfactory performance on probation and the increasing number and seriousness of defendant’s offenses. The court found no factors in mitigation. The court found the factors in aggravation outweighed any in mitigation.

On appeal, defendant contends imposition of the upper term contravenes Cunningham. He “acknowledges that his argument is presently foreclosed in the California courts by the ‘single aggravating factor’ rule and the broad reading of the prior conviction exception,” citing People v. Black (2007) 41 Cal.4th 799 (Black) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval). He also acknowledges that this court is required to follow the California Supreme Court decisions, citing Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455. Defendant states that he raises the issue to exhaust his state remedies and to preserve his right to pursue the issue in federal court.

Defendant was sentenced on May 25, 2007, almost two months after the Legislature amended section 1170, subdivision (b), to provide that “[w]hen a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court. . . . The court shall select the term which, in the court’s discretion, best serves the interest of justice. The court shall set forth on the record the reasons for imposing the term selected . . . .” (Stats. 2007, ch. 3 (SB 40), § 2, eff. March 30, 2007.)

Defendant was sentenced when there was no longer a presumptive middle term and the sentencing court was free to exercise its discretion within the range, requiring no fact-finding to justify the upper term. The Sixth Amendment issue identified in Cunningham has been remedied by the amendment of section 1170, subdivision (b). Defendant committed his offenses (February 3, 2007) prior to the effective date of the amendment (March 30, 2007). Sandoval found neither a due process nor an ex post facto violation in utilizing the new sentencing procedure for pending criminal proceedings. (41 Cal.4th at pp. 853-857.) The trial court was not required to express its findings of fact in aggravation or to weigh the aggravating and mitigating factors. All that was required was a statement of reasons for the term chosen.

Even assuming, without deciding, that Cunningham is applicable, we find no error. The Sixth Amendment jury trial guarantee does not apply to a finding of a prior conviction used to impose the upper term. Here, imposition of the upper term was based in part on defendant’s prior convictions. Defendant was eligible for the upper term and the additional factfinding engaged in by the trial court did not violate defendant’s jury trial right. (Black, supra, 41 Cal.4th at p. 812.) Because the upper term was based in part on his prior convictions, there was no sentencing error.

III

At sentencing, defendant argued that he entertained but one intent and objective in transporting both methamphetamine (count four) and ecstasy (count five). The prosecutor agreed that there appeared to be but one intent. The trial court queried how that would change the probation report’s recommendation with respect to sentencing on counts four and five and the parties discussed the issue. The court then imposed sentence: the upper term of four years for count four, the three year enhancement and the concurrent terms for the misdemeanors in counts one, two, three and eight. The court never expressly sentenced on count five. This probably explains why neither the original abstract of judgment filed May 25, 2007, nor the amended abstract filed June 1, 2007, reflect sentencing on count five. We conclude that remand for sentencing on count five is not required since the record reflects the court’s intended sentencing choice on count five, that is, to follow the defense argument and the prosecutor’s concession that section 654 barred separate punishment for count five. We will modify the judgment accordingly.

DISPOSITION

The judgment is modified to provide for a section 654 stay on punishment for count two, leaving the scene of an accident, a misdemeanor, and on count five, transportation of a controlled substance (ecstasy). The trial court is directed to prepare an amended abstract of judgment accordingly and to forward a certified copy to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.

We concur, HULL, J., BUTZ, J.


Summaries of

People v. Rodrigues

California Court of Appeals, Third District, Placer
Sep 9, 2008
No. C055864 (Cal. Ct. App. Sep. 9, 2008)
Case details for

People v. Rodrigues

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. MARIO FERNANDO FELIX RODRIGUES…

Court:California Court of Appeals, Third District, Placer

Date published: Sep 9, 2008

Citations

No. C055864 (Cal. Ct. App. Sep. 9, 2008)