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People v. Roque

Court of Appeal of California
Jul 1, 2008
No. D051305 (Cal. Ct. App. Jul. 1, 2008)

Opinion

D051305

7-1-2008

THE PEOPLE, Plaintiff and Respondent, v. ANGEL ROQUE, Defendant and Appellant.

Not to be Published


Angel Roque pleaded guilty to evading an officer and causing serious bodily injury (count 1; Veh. Code, § 2800.3, subd. (a)), and driving under the influence causing injury (count 3; Veh. Code, § 23153, subd. (a)). As to count 3, Roque also admitted that he committed a serious felony (Pen. Code, § 1192.7, subd. (c)(8)), caused serious bodily injury (§ 12022.7, subd. (a)) and was driving more than 30 miles per hour above the speed limit (Veh. Code, § 23582, subd. (a)). In exchange for the guilty plea, the prosecution dismissed numerous other charges against him.

Section references are to the Penal Code except where otherwise specified.

The court sentenced Roque to a total term of six years eight months in prison, which consisted of the lower term of three years on count 1, and consecutive terms of eight months for count 3 and three years for the Penal Code section 12022.7, subdivision (a) enhancement. Roque contends (1) the consecutive sentences for counts 1 and 3 constitute double punishment in violation of Penal Code section 654, since he committed a single, indivisible act, and (2) the imposition of a full three-year term on the great bodily injury enhancement for count 3 violates section 1170.1, subdivision (a), and is thus unauthorized by law.

The People concede the second issue and agree the matter must be remanded for resentencing. As to the first issue, we affirm the judgment.

FACTS

Both parties rely on the probation report, and we take the facts from it. When Roque entered his guilty plea he signed a "Harvey waiver." (People v. Harvey (1979) 25 Cal.3d 754.)

On January 18, 2007, Roque and his wife argued. Roque left in a pickup truck, and an officer saw him run a stop sign. The officer activated the patrol cars lights and siren intending to stop Roque for a traffic violation. Roque then ran three stop lights while driving more than 50 miles per hour in an area of heavy pedestrian and vehicle traffic. Roque ran another stop light and turned onto a street driving the wrong way against signs that read, "`Wrong way, do not enter. " The officer stopped his pursuit, however, when a man fell or jumped out of the bed of the truck and landed in the middle of the street.

At about 6:50 p.m. Roque drove the wrong way on an on-ramp for Interstate 5, toward another patrol car going the right way. The officer activated the patrol cars lights and siren and stopped the car, but Roque swerved around it and continued to drive the wrong way at about 65 miles per hour. Roques truck collided head on with Joseph Franks car, causing severe injuries to Frank. Roque was later found to be under the influence of cannabinoids, opiates and amphetamines.

The People asked for a sentence of seven years. The court explained "this case easily could have warranted eight years and eight months in state prison," but it chose a six year eight month sentence in light of the Peoples position.

DISCUSSION

I

Section 654

A

Section 654, subdivision (a) provides: "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. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other."

"Section 654 precludes multiple punishment for a single act or indivisible course of conduct punishable under more than one criminal statute. Whether a course of 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. [Citation.] If all of the offenses are incident to one objective, the court may punish the defendant for any one of the offenses, but not more than one. [Citation.] If, however, the defendant had multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct." (People v. Cleveland (2001) 87 Cal.App.4th 263, 267-268.)

"The determination of whether there was more than one objective is a factual determination, which will not be reversed on appeal unless unsupported by the evidence presented at trial. [Citation.] The factual finding that there was more than one objective must be supported by substantial evidence." (People v. Saffle (1992) 4 Cal.App.4th 434, 438.)

We agree with the trial court that Roque had divisible intents to commit two separate crimes. His first objective was to get behind the wheel of a vehicle while under the influence of drugs, and his second objective was to evade a police officer. Evading an officer was not incidental to or an indivisible part of driving under the influence. Rather, he could have stopped his truck in response to the siren and lights, thereby avoiding injury to Frank. Section 654 "refers to criminal acts or omissions. The neutral act of driving . . . is not `made punishable by any statute; what is punished is the act of driving in violation of the law." (3 Witkin, Cal. Crim. Law (3d. ed. 2000) Punishment, § 151, pp. 216-217.) Thus, when a defendant simultaneously commits two criminal acts that coincidentally have in common an identical noncriminal act, driving, "it cannot be said that he had only one intent and objective (driving), for it is the criminal intent and objective that is controlling." (Id., at p. 217.)

As the People point out, if multiple punishment were prohibited under the scenario here there would be no incentive for a person driving under the influence to stop when an officer attempts to pull him or her over, as he or she would suffer no greater punishment by trying to escape. (See People v. Butler (1986) 184 Cal.App.3d 469, 474.)

B

We also reject Roques contention he was entitled to a jury trial and proof beyond a reasonable doubt as to any finding that he had separate criminal objectives in committing counts 1 and 3. He cites Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi), in which the court held, "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt."

In People v. Cleveland, supra, 87 Cal.App.4th 263, the court rejected the same argument that Roque raises. The court explained that "section 654 is not a sentencing `enhancement. On the contrary, it is a sentencing `reduction statute. Section 654 is not a mandate of constitutional law. Instead, it is a discretionary benefit provided by the Legislature to apply in those limited situations where ones culpability is less than the statutory penalty for ones crimes. Thus, when section 654 is found to apply, it effectively `reduces the total sentence otherwise authorized by the jurys verdict. The rule of Apprendi, however, only applies where the nonjury factual determination increases the maximum penalty beyond the statutory range authorized by the jurys verdict." (People v. Cleveland, supra, at p. 270.) Roque ignores People v. Cleveland, even though the People discuss it in their respondents brief. We find the opinion persuasive.

Given our holding on the substantive issue, we are not required to consider the parties arguments pertaining to whether Roque was procedurally barred from raising this issue by, for instance, the waiver doctrine and the lack of a certificate of probable cause. Further, we are not required to consider Roques argument the supposed error was not harmless.

II

Three-Year Enhancement Sentence

The People concede that the imposition of a three-year sentence on the great bodily injury enhancement for count 3 is unauthorized because count 3 was a subordinate offense, and under section 1170.1, subdivision (a) the court could impose only "one-third of the term imposed for any specific enhancements applicable to . . . subordinate offenses."

Roque asserts that we must order the reduction of the enhancement sentence to a consecutive one-year term. However, "an aggregate prison term is not a series of separate independent terms, but one term made up of interdependent components. The invalidity of one component infects the entire scheme." (People v. Hill (1986) 185 Cal.App.3d 831, 834.) "When a case is remanded for resentencing by an appellate court, the trial court is entitled to consider the entire sentencing scheme. Not limited to merely striking illegal portions, the trial court may reconsider all sentencing choices." (Ibid.) "It is perfectly proper for this court to remand for a complete resentencing after finding an error with respect to part of a sentence and just as proper for the trial judge to reimpose the same sentence in a different manner," based on the appropriate total punishment under all the circumstances. (People v. Calderon (1993) 20 Cal.App.4th 82, 88.) Thus, we remand the matter for resentencing.

DISPOSITION

The matter is remanded for resentencing. In all other respects, the judgment is affirmed.

WE CONCUR:

BENKE, J.

AARON, J.


Summaries of

People v. Roque

Court of Appeal of California
Jul 1, 2008
No. D051305 (Cal. Ct. App. Jul. 1, 2008)
Case details for

People v. Roque

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ANGEL ROQUE, Defendant and…

Court:Court of Appeal of California

Date published: Jul 1, 2008

Citations

No. D051305 (Cal. Ct. App. Jul. 1, 2008)