Opinion
B226742
08-02-2011
THE PEOPLE, Plaintiff and Respondent, v. RONALD TINSON, Defendant and Appellant.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr., and Robert C. Schneider, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County
Super. Ct. No. VA110174)
APPEAL from a judgment of the Superior Court of Los Angeles County. Michael A. Cowell, Judge. Affirmed.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr., and Robert C. Schneider, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Ronald Tinson challenges his sentence, arguing that the court failed to recognize it had discretion to sentence him concurrently for his convictions of burglary, attempted burglary, and evading a police officer. We conclude that under the "Three Strikes" law, the court lacked discretion to sentence him concurrently and properly sentenced him consecutively. We affirm.
FACTS
In February 2009, the Los Angeles Police Department established a "knock knock burglary" task force (the task force) to address an onslaught of burglaries. Officers recognized a pattern to the burglaries: they were committed by persons in a rental car, who approached a house to determine if residents were inside. If a resident was inside, the burglar fabricated a story and left without entering the premises. If instead, the residence was unoccupied, the burglar entered the house and removed personal property from it. Generally, a second person accompanied the burglar to act as a lookout. The rental car used in the burglary often was equipped with a police scanner, obtained by the burglar in order to be alerted to the arrival of police.
On April 10, 2009, members of the task force followed appellant and Earl Nevils from an area where gang members frequently congregated. Both appellant and Nevils were members of the Rolling 30's Harlem Crips gang. Appellant drove a white Dodge Charger, and Nevils was the front seat passenger. Nevils had rented the Dodge Charger.
Appellant stopped the car outside J.V.'s house in the City of Bellflower. Holding a bouquet of flowers, Nevils went to the front door and knocked on the door. When J.V. answered, Nevils said he was looking for Maria. Nevils then returned to the Charger, and appellant drove away.
Appellant and Nevils continued to the City of Downey where they targeted D.M.'s home. Nevils approached the front door and kicked in the door, breaking the doorjamb. Nevils removed jewelry, cash, a passport, a bottle of champagne, and a safe, which D.M. kept in her closet. Nevils did not have D.M.'s permission to enter her home or take her belongings. Nevils placed the items in the trunk of the Charger, and appellant drove away with Nevils in the front seat.
Shortly afterwards, when Los Angeles County Sheriff Deputy William Tauson attempted to stop the Charger, Nevils jumped out of the car and ran across traffic lanes. Appellant then accelerated, drove over a median, into an area filled with pedestrians, on the wrong side of the road, in excess of the speed limit and through a red light, all in order to avoid Tauson. Appellant's driving endangered numerous bystanders and caused several pedestrians and vehicles to maneuver abruptly to avoid appellant. Appellant finally stopped the car in a parking lot, exited, and ran.
After apprehending appellant and Nevils, officers found D.M.'s property inside the trunk of the Charger. Detective John Clark found a police scanner appellant discarded during the pursuit.
Officer Brian Zavala, an expert on the Rolling 30's Harlem Crips opined that the crimes were committed for the benefit of the gang.
PROCEDURE
Appellant and Nevils were charged with one count of attempted first degree burglary, and one count of first degree burglary. Appellant was also charged with evading an officer. Gang enhancements were alleged. It was further alleged that, in one case, appellant suffered prior convictions for eight counts of robbery and one count of attempted robbery within the meaning of Penal Code section 667, subdivisions (a)(1) and (b) through (i) and section 1170.12, subdivisions (a) through (d), and did not remain free of prison custody for a period of five years following those convictions.
A jury convicted appellant of all counts and found the gang allegations true. The court found all of the alleged priors to be true. The court sentenced appellant to consecutive prison terms of 35 years to life (burglary), 30 years to life (attempted burglary), and 30 years to life (evading an officer).
DISCUSSION
Appellant argues that the trial court incorrectly believed it was required to sentence him consecutively. According to appellant, the court could have sentenced him concurrently because his crimes occurred as "a continuous sequence of events." We disagree.
Consecutive sentencing is mandated by the Three Strikes law for any current felony convictions "not committed on the same occasion, and not arising from the same set of operative facts." (Pen. Code, § 667, subd. (c)(6); People v. Deloza (1998) 18 Cal.4th 585, 590-591; see also People v. Hendrix (1997) 16 Cal.4th 508, 512-513.) The court shall sentence the defendant consecutively on each count "[i]f there are two or more current felony convictions 'not committed on the same occasion,' i.e., not committed within close temporal and spacial proximity of one another, and 'not arising from the same set of operative facts,' i.e., not sharing common acts or criminal conduct that serves to establish the elements of the current felony offenses of which defendant stands convicted . . . ." (People v. Lawrence (2000) 24 Cal.4th 219, 233 (Lawrence).)Consecutive sentencing is discretionary under section 667, subdivision (c) only if the current felony convictions are "'committed on the same occasion'" or "'aris[e] from the same set of operative facts.'" (People v. Casper (2004) 33 Cal.4th 38, 45.)
Our Supreme Court applied these principles in Lawrence, supra, 24 Cal.4th 219, which is analogous to the present case. In Lawrence, after the defendant shoplifted a bottle of brandy, the store's manager and employee chased defendant. (Id. at p. 224.) The defendant ran away through bystander Vincent Rojas's enclosed property and assaulted Rojas. (Ibid.) Within 15 to 20 minutes of the shoplifting, the defendant was captured. (Ibid.) The high court concluded that the defendant's crimes were not committed on the same occasion and did not arise from the same operative facts, reasoning that the "defendant fled the scene of his first crime, the theft of a bottle of brandy from a market. . . . [D]efendant committed his second offense at the Rojas[] home, a one- to three-block distance from the site of his first crime . . . , and most likely within two or three minutes of his theft from the market." (Id. at p. 228.) The defendant "chose to commit new and separate crimes during his flight." (Ibid.)The crimes were not committed simultaneously and included entirely separate victims. (Ibid.)
Similarly here, appellant's crimes were not committed simultaneously and involved entirely separate victims. The attempted robbery occurred in the City of Bellflower at J.V.'s residence, and J.V. was the intended victim even though appellant did not complete the crime. The burglary occurred in a different city at the residence of D.M., who was the victim. The evasion of a police officer occurred after the burglary of D.M.'s residence and in a different location, and placed numerous bystanders in danger. Although the crimes were successive, they did not occur at the same time. Nor was any crime based on the same operative facts. The attempted burglary was based on Nevils's approach to J.V.'s residence; the burglary was based on Nevils's entrance into D.M's residence; and the evasion occurred when appellant tried to flee from Sheriff Deputy Tauson. As in Lawrence, even though the crimes in this case occurred in a continuous sequence of events, they were not committed on the same occasion. The trial court properly imposed consecutive sentences. (People v. Jenkins (2001) 86 Cal.App.4th 699, 705-707; People v. Jones (1998) 67 Cal.App.4th 724, 729.)
We need not consider appellant's argument that the court's erroneous belief that consecutive sentences were mandatory violated his right to due process because it is based on the incorrect assumption that the court's belief was erroneous. We also need not consider appellant's argument that he suffered prejudice because we find no error.
DISPOSITION
The judgment is affirmed.
FLIER, J. We concur:
BIGELOW, P. J.
GRIMES, J.