Filed 8/17/22 P. v. Bacci CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Convicted of assault with a deadly weapon, carjacking, reckless evasion, and forcibly resisting an officer, Joshua Bacci was sentenced to a total term of 33 years and 8 months in prison. On appeal, Bacci challenges the sufficiency of evidence to support the jury’s finding of recklessness required for felony evasion (Veh. Code, § 2800.2) and the trial court’s failure to instruct the jury sua sponte on the lesser included misdemeanor (Veh. Code, § 2800.1). Bacci also argues that Penal Code section 654[1] prohibits multiple punishments for his convictions for carjacking (§215, subd. (a)) and assault with a deadly weapon (§245, subd. (a)(1)), as well as his convictions for reckless evasion (Veh. Code, § 2800.2) and forcibly resisting an officer (§ 69). Finally, Bacci argues that remand for resentencing is required because he is entitled to retroactive application of recent legislative changes effectuated by Senate Bill No. 567 (2021-2022 Reg. Sess.) and Assembly Bill Nos. 124(2021-2022 Reg. Sess.) and 518. (2021-2022 Reg. Sess.)

We reverse the judgment and remand the matter for resentencing in light of Senate Bill No. 567, at which time the trial court may reconsider its sentencing choices under current law. We find no merit in Bacci’s other claims of error.

1. BACKGROUND

1. The Amended Information

On December 18, 2019, the Santa Cruz County District Attorney’s Office filed an amended information charging Bacci with carjacking (§ 215, subd. (a); count 1), assault with a deadly weapon with an enhancement for personal infliction of great bodily injury (§§ 245, subd. (a)(1), 12022.7, subd. (a); count 2), driving or taking a vehicle without consent (Veh. Code, § 10851, subd. (a); count 3) recklessly evading an officer (Veh. Code, § 2800.2, subd. (a); count 4), and forcibly resisting an officer (§ 69; count 5). The information also alleged that Bacci had served four prior prison terms (§ 667.5) and had three prior strike convictions (§ 667, subds. (b)-(i)) and three prior serious felony convictions (§ 667, subd. (a)(1)).

2. The Trial

1. The Carjacking

In January 2019, C.B. lived in a GMC Vandura, not a “[plain-]Jane van” but a custom van with side rails, pin-striping, captain chairs for the driver and front passenger, and a bed in the back. At the time, C.B. was parking his van at a Burger King, where he received food in exchange for completing various jobs around the store. Bacci, likewise unhoused, lived behind the gas station next to the Burger King. C.B. was acquainted with Bacci: the two “just talked . . .and might have smoked a bowl of weed together or something” and “did meth [together] one time.” The two had met about 10 years before in San Quentin State Prison, where they used to be “cellies.”

On January 8, 2019, when C.B. stopped at the gas station, Bacci asked him for a ride to a McDonald’s. The request seemed odd because the McDonald’s was only two blocks away. But C.B. agreed. Bacci went to the bathroom before he went inside C.B.’s van, and C.B. was unable to see what Bacci was doing before he entered the vehicle. Bacci sat down on the bed in the back of the van, “getting high.”

As C.B. approached a nearby Safeway store, Bacci directed C.B. to park on Rincon Street, saying he knew someone there. C.B. told Bacci that he was “going to hook up with the chick named Raven who’s . . . a hooker.” Enraged, Bacci jumped up and punched C.B. in the face, saying that Raven was his girlfriend. Bacci punched C.B. several times and kicked him in the ribs. C.B. stuck his thumb in Bacci’s eye to get him to stop, but Bacci started to choke C.B. C.B. tried to open the driver’s side door, but it was locked from the outside with a padlock. Meanwhile, Bacci continued to hit, kick, and choke C.B. During the attack, Bacci called C.B. a child molester and a rapist.

C.B. later woke up in the hospital, and he could not recall how he arrived there or how his fight with Bacci ended. He knew that he had been “beat in the head” with something.

The police received several calls about the incident. A pedestrian was walking home from the Safeway when he saw a van parked next to the sidewalk on Rincon Street, facing the direction of Mission Street. The pedestrian could hear some noises coming from inside the van that sounded like a struggle or a fight and someone crying out, and he called the police at 8:39 p.m.

A woman was driving down Mission Street behind a van that evening when the van suddenly stopped in front of her, near Union Street. The van’s passenger door opened and a man with blood on his shirt either stepped or fell out. The man stumbled toward the woman’s car, asked for help, and eventually collapsed onto the street. The van drove away, eventually turning left onto River Street. The woman drove home and called 911 at 8:53 p.m.

Another woman was driving on Mission Street near Union with her boyfriend when the couple saw a bloodied man in the middle of the street. The girlfriend stopped the car and called 911 at 8:45 p.m., while her boyfriend told the man to move to the sidewalk. The man told the couple that someone stole his van. The man also said that he had been giving someone a ride, and “the person hit him in the head with a brick, and kicked him out of his car [and] stole his van.”

Officer Frederick Yoon responded to a report of a possible carjacking and arrived as C.B. was being medically assisted. C.B. was bleeding, and he said that he was hit on the head with a brick and that his car was stolen. C.B. referred to his assailant as “Josh.”

Later, Yoon went to the hospital, spoke to C.B., and showed him a photograph of Bacci. C.B. identified Bacci as his assailant. At the hospital, C.B. told Yoon that Bacci was upset with him about Bacci’s girlfriend and had struck his head with a brick and punched him multiple times. Eventually, C.B. stuck a finger in Bacci’s eye, grabbed the door handle, and “flew out of the car.” Bacci then drove off in C.B.’s van.

2. The Pursuit of the Van

Officer Adam Baker, then with the Santa Cruz Police Department, was driving in a patrol car during the evening of January 8, 2019, when he received a report of a possible carjacking. A few minutes later, Baker saw a van that matched the description that he had been given. Baker called for backup and followed the van.

Another Santa Cruz police officer, Jeffrey Brouillette, responded to Baker’s update and stopped his patrol car on Market Street “to block other cars and pedestrians from coming that way and establish . . . a safe backdrop.” Baker then turned on his lights and sirens to stop the van. Instead of stopping, the van accelerated around Brouillette’s car, continuing southbound on Market Street in the northbound lane of traffic. The van drove through a red light at the next intersection without slowing or stopping. The van continued at around 25 miles per hour, crossed four lanes of traffic to collide into the opposite curb line, drove over the curb into a “wooded area” on Water Street where it got stuck in the mud, and then hit a tree while trying to turn around.

The distance from where Baker activated his lights and sirens to where the van eventually crashed was approximately .15 miles, or a little over a block. The van’s speed ranged from 8 to 30 miles per hour over that distance.

By now there were three police cars on scene, all with their overhead lights still on but their sirens off to allow officers to “more clearly articulate commands.” Brouillette ordered the driver to get out of the car and show his hands. Bacci came out the passenger side of the van and started running. Brouillette gave chase and eventually grabbed Bacci around the waist as Bacci was climbing over a fence. Brouillette told Bacci to stop resisting. Officer Elizabeth Howard-Gibbon tried to help by grabbing the back of Bacci’s t-shirt. At one point, Howard-Gibbon saw that Bacci attempted to swing his right elbow at Brouillette. Bacci continued to try to pull himself over the fence. Bacci was “basically fighting” against the officers.

Both Baker and Howard-Gibbon attempted several times to tase Bacci. When one eventually succeeded, Brouillette was able to pull Bacci to the ground. Bacci “turtled up his arms . . . beneath his body” and did not comply with Brouillette’s commands to show his hands. A number of officers were eventually able to handcuff Bacci, though Brouillette estimated that it took around 30 seconds to pull Bacci’s arms out from underneath him and place him in handcuffs. Another officer at the scene believed he saw dried blood on Bacci’s face and blood coming from Bacci’s nose.

Inside the van, officers found a brick that was wedged into the lower part of the front driver’s seat and the driver’s side door. There was a red spot on the brick that Brouillette thought could be blood.

3. The Jury Verdict and Sentencing

The jury found Bacci guilty of all five counts as charged. After a separate court trial, the trial court found true the three allegations of prior strike convictions.

At the sentencing hearing, the trial court struck two of Bacci’s prior strikes under section 1385. Subsequently, the trial court sentenced Bacci to a total term of 33 years and 8 months in prison: an aggravated term of nine years for carjacking (§ 215, subd. (a); count 1), doubled to 18 years as a result of the remaining strike conviction; a concurrent aggravated term of four years for assault (§ 245, subd. (a)(1); count 2), likewise doubled to eight years; the aggravated term of three years for driving or taking a vehicle without consent (Veh. Code, § 10851, subd. (a); count 3), doubled to six years and stayed under section 654; one-third the midterm of two years for a total of eight months for recklessly evading an officer (Veh. Code, § 2800.2, subd. (a); count 4), doubled to 16 months; one-third the midterm of two years for a total of eight months for resisting a peace officer (§ 69; count 5), doubled to 16 months; ten years for his two prior serious felony convictions (§ 667, subd. (a)(1)); and three years for the great bodily injury enhancement (§ 12022.7, subd. (a)).[2]

2. DISCUSSION

1. The Vehicle Code Section 2800.2 Conviction

A driver violates Vehicle Code section 2800.1, a misdemeanor, by willfully fleeing or attempting to elude a pursuing police officer’s motor vehicle. (Veh. Code, § 2800.1, subd. (a).)[3] A felony conviction under Vehicle Code section 2800.2 additionally requires proof that the fleeing defendant drove with “willful or wanton disregard for the safety of persons or property.” (Veh. Code, § 2800.2, subd. (a).) Bacci challenges his conviction under the latter statute on the ground that there is insufficient evidence that he drove with the requisite “willful or wanton disregard for the safety of persons or property.” (Ibid.) Alternatively, he argues that the trial court should at a minimum have instructed the jury on the lesser included misdemeanor of simple evasion of an officer (Veh. Code, § 2800.1, subd. (a)). We conclude that the record reflects substantial evidence in support of the jury’s verdict and no prejudicial error in the trial court’s instructions on this count.

1. Sufficiency of the Evidence

In reviewing a challenge to the sufficiency of the evidence, “we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime . . . beyond a reasonable doubt.” (People v. Zamudio (2008) 43 Cal.4th 327, 357.) Viewing the evidence in the light most favorable to the prosecution, we look solely to whether the verdict is supported by substantial evidence— “evidence that is reasonable, credible, and of solid value”—without resolving credibility disputes or evidentiary conflicts. (Ibid.) “A reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support” ’ the jury’s verdict.” (Ibid.)

The record supplies substantial evidence in support of the jury’s finding that Bacci acted with “willful or wanton disregard for the safety of persons or property” as required under Vehicle Code section 2800.2, subdivision (a). In the context of Vehicle Code section 2800.2, “ ‘ “ ‘[w]antonness includes the elements of consciousness of one’s conduct, intent to do or to omit the act in question, realization of the probable injury to another, and reckless disregard of consequences.’ [Citation.] . . . The word ‘willful’ in this connection means ‘intentional’ [citations].” ’ ” (People v. Weddington (2016) 246 Cal.App.4th 468, 486 (Weddington).) Here, the trial court instructed the jury with CALCRIM No. 2181, which states in pertinent part that a person “commits an act willfully when he or she does it willingly or on purpose” and that a person “acts with wanton disregard for safety when, one, he or she is aware that his or her actions present a substantial and unjustifiable risk of harm. [¶] Two, he or she intentionally ignores that risk. [¶] The person does not however have to intend to cause damage.”

Instead of stopping when Baker activated his lights and sirens, Bacci accelerated around one of the patrol cars into the opposing lane of traffic. He then went through an intersection against a red light without stopping or slowing. The van eventually crossed over four lanes, “collided” into the curb, gained enough momentum to drive over the curb and into mud where it became momentarily stuck, and hit a tree while trying to turn. This strikes us as ample evidence of willful or wanton disregard for the safety of person or property.

Urging the contrary, Bacci argues that the pursuit was brief, his speed not particularly high, and the prosecution presented no evidence of nearby pedestrians or other cars that could have been harmed during the pursuit. But Vehicle Code section 2800.2 does not require proof of actual injury or property damage, proof of a minimum speed, or proof that persons or property were actually present.[4] And nothing in Vehicle Code section 2800.2’s plain language of the “substantial and unjustifiable risk of harm” requires proof of the actualization of that risk. A jury could accordingly infer, based on the evidence presented, that Bacci drove with wanton disregard for the safety of pedestrians or other traffic that one could reasonably foresee might be present in the area. The violation of signal lights and lane markers designed to regulate opposing traffic, the failure even to slow to check for the likelihood of opposing traffic before disregarding the red light, and the actual loss of control of the van in colliding first with the curb and later with a tree—all reflect disregard for the possible presence of others on the road or sidewalks. We note that only a short time and distance before the pursuit, multiple civilian eyewitnesses had been on the road to observe the van or C.B. at close range, dispelling the notion that the vicinity of Market Street and Water Street was so deserted as to neutralize a risk that the jury on this record permissibly determined to be substantial and unjustifiable.

Bacci contrasts his case to other cases involving more egregious examples of reckless or dangerous driving. These cases, however, did not address the sufficiency of the evidence of reckless disregard. (See, e.g., In re L.J. (2021) 72 Cal.App.5th 37 (L.J.) [analyzing whether multiple punishments for convictions for assault and reckless evasion violated section 654]; People v. Mathews (1998) 64 Cal.App.4th 485 [sufficiency of evidence that police vehicle was distinctively marked]; People v. Estrella (1995) 31 Cal.App.4th 716 [sufficiency of evidence that officer was wearing a distinctive uniform].) Moreover, when analyzing whether sufficient evidence supports a conviction, “comparison with other cases is of limited utility, since each case necessarily depends on its own facts.” (People v. Thomas (1992) 2 Cal.4th 489, 516.) Bacci cites to no cases, and we are unaware of any, that purport to set a minimum threshold for “driving with willful or wanton disregard” for safety under the statute.[5]

Our inquiry here is limited to whether any rational trier of fact could conclude that Bacci violated Vehicle Code section 2800.2 based on the evidence presented at trial. (See People v. Nguyen (2015) 61 Cal.4th 1015, 1055.) After carefully reviewing the record, we conclude that there is substantial evidence to support Bacci’s conviction.

2. Instruction on Lesser Included Offense of Vehicle Code Section 2800.1

Bacci further argues that the trial court erred by failing to instruct sua sponte on the lesser included offense of Vehicle Code section 2800.1, which differs from Vehicle Code section 2800.2 only in omitting the requirement of willful or wanton disregard for public safety. (See People v. Springfield (1993) 13 Cal.App.4th 1674, 1679-1680.) In other words, Bacci asks us to conclude that, even if the evidence is sufficient to support a conviction for the greater offense, a reasonable jury given the alternative of convicting him of the lesser offense might have done so. We review de novo the propriety of omitting an instruction on a lesser included offense. (See People v. Licas (2007) 41 Cal.4th 362, 366.)

“A court must instruct sua sponte on general principles of law that are closely and openly connected with the facts presented at trial.” (People v. Lopez (1998) 19 Cal.4th 282, 287.) Thus, the trial court must instruct on lesser included offenses even in the absence of a request “if the evidence ‘raises a question as to whether all the elements of the charged offense are present and there is evidence that would justify a conviction of such a lesser offense.’ ” (Id. at pp. 287-288.) A trial court must instruct on a lesser included offense “whenever evidence that the defendant is guilty only of the lesser offense is ‘substantial enough to merit consideration’ by the jury.” (People v. Breverman (1998) 19 Cal.4th 142, 162 (Breverman).) The relevant inquiry is not whether there is any evidence to support the lesser offense, but whether “ ‘ “a jury composed of reasonable [persons] could . . . conclude[]” ’ that the lesser offense, but not the greater, was committed.” (Ibid.) Even where the failure to instruct on a lesser included offense was error, reversal is not warranted unless “it appears ‘reasonably probable’ the defendant would have obtained a more favorable outcome” from a jury given a choice between the greater and the lesser offenses. (Id. at p. 178.) We conclude that even if the evidence were sufficient to warrant an instruction on Vehicle Code section 2800.1, the omission of the instruction was harmless on this record.

Bacci claims that jurors may have had the common experience of driving around a lane blocked by a car that was double-parked on a street or sitting at a red light with no traffic in sight. Thus, Bacci argues that an instruction on misdemeanor evasion was warranted because jurors may have understood that actions like his are not always dangerous in the absence of traffic or pedestrians. Yet the fact that in certain instances, violations of basic traffic safety laws do not result in injuries to persons or property damage does not render such conduct safe. Bacci’s conduct created an inherent risk of substantial danger to persons or property potentially within striking distance. And here, this is not a case where there was substantial (or any) evidence that he did not disregard traffic laws. (Cf. Springfield, supra, 13 Cal.App.4th at pp. 1680-1681 [failure to instruct the jury with lesser included offense of Vehicle Code section 2800.1 was prejudicial error where defendant testified that he did not drive with willful or wanton disregard].)

Bacci suggests that the only evidence that he drove with a willful or wanton disregard for person and property was Brouillette’s opinion testimony at trial that characterized his behavior as inherently reckless.[6] Bacci is mistaken. Beyond Brouillette’s opinion of Bacci’s driving, it was undisputed that Bacci in fact drove onto the wrong side of the street to circumvent a patrol car stationed to block his path, ran a red light, and crossed four lanes, all in a compressed distance. It was likewise undisputed that he accelerated forcefully enough to clear a curb he initially collided with and to lose control of the van, ultimately hitting a tree. That the pursuit was brief, that Bacci may not have exceeded the speed limit, or that he managed to avoid causing injuries or property damage does not signify an absence of recklessness, given the overall pattern of his driving.[7] Accordingly, we are hard pressed to discern substantial evidence warranting an instruction on the lesser included offense of misdemeanor evasion. (Breverman, supra, 19 Cal.4th at p. 162.)

Even assuming, however, that the trial court erred in failing to instruct on the lesser offense of misdemeanor evasion, the error would not warrant reversal: it is not reasonably probable on this record that a jury presented with an election between the lesser and greater offenses would have found Bacci guilty of the lesser offense and not the greater. The evidence was sufficiently compelling that, at trial, he did not dispute his willful or wanton disregard for safety. Instead, in his closing argument as to this count, his counsel only disputed whether Bacci was aware of the police lights and sirens during the pursuit. Accordingly, any error would have been harmless. (See Breverman, supra, 19 Cal.4th at p. 178.)

2. Section 654

Bacci argues that the trial court should have imposed only one sentence under section 654 for carjacking (count 1) and assault with a deadly weapon (count 2) on the theory that the offenses consisted of a single physical act.^[8] He also argues that the trial court should have imposed only one sentence for recklessly evading an officer (count 4) and forcibly resisting an officer (count 5) because the offenses, though separate acts, comprised an indivisible course of conduct. We conclude that substantial evidence supports the trial court’s determination that counts 1 and 2 and counts 4 and 5 were committed by separate acts and had separate objectives. Accordingly, we determine that the trial court did not err in imposing sentences for all counts.

1. Background

During the sentencing hearing, the trial court made several factual findings regarding sentencing and the applicability of section 654. First, the trial court noted that it intended to stay the sentence for count 3, driving or taking a vehicle without consent, because it was “punishing the same crime that’s set forth in the Count 1, which is carjacking.”

As to Bacci’s convictions for carjacking and assault with a deadly weapon, the trial court stated that its inclination was to find section 654 inapplicable because the offenses were “separate incidents” and Bacci “exhibited a separate criminal intent with respect to each of those crimes.” The trial court noted that the evidence reflected that the assault was a “separate crime with a separate intent than the intent to steal the van.” In particular, the trial court found that the assault “appeared to be triggered by some jealousy surrounding a mutual friend that you had, Raven, who was a sex worker in Santa Cruz County.” Moreover, “t was only after that assault with a brick took place in the van that it appears that the intent to take the van from [C.B.] was formed. And so it was sometime when you were driving down Mission Street that . . . you pushed [C.B.] out on the street.”

2. [i]Legal Principles

Section 654, subdivision (a) prohibits multiple punishments for “[a]n act or omission that is punishable in different ways by different provisions of the law.”[10] “Section 654 . . . is a discretionary benefit provided by the Legislature to apply in those limited situations where one’s culpability is less than the statutory penalty for one’s crimes. Thus, when section 654 is found to apply, it effectively ‘reduces’ the total sentence otherwise authorized by the jury’s verdict.” (People v. Cleveland (2001) 87 Cal.App.4th 263, 270 (Cleveland) [distinguishing judicial determination of section 654 inapplicability from sentencing enhancement].)

“Whether a defendant may be subjected to multiple punishment under section 654 requires a two-step inquiry, because the statutory reference to an ‘act or omission’ may include not only a discrete physical act but also a course of conduct encompassing several acts pursued with a single objective.” (People v. Corpening (2016) 2 Cal.5th 307, 311 (Corpening).) Under the first step, we consider if the crimes were completed by a “ ‘single physical act,’ ” or by “a course of conduct.” (Ibid.) It is sufficient for this first step of the inquiry that the circumstances “involve, or arguably involve” multiple acts. (People v. Mesa (2012) 54 Cal.4th 191, 199.) “f we conclude that the case involves more than a single act—i.e., a course of conduct[,]” we then proceed to the second step and “consider whether that course of conduct reflects a single ‘intent and objective’ ” or is divisible according to “multiple intents and objectives.” ([i]Corpening, supra, 2 Cal.5th at p. 311.)

For this second step of the analysis, “ ‘ “[w]hether 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.’ ” (People v. Capistrano (2014) 59 Cal.4th 830, 885 (Capistrano), overruled on a different ground as stated in People v. Hardy (2018) 5 Cal.4th 56, 104.) If a defendant harbored “ ‘multiple criminal objectives,’ which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, ‘even though the violations shared common acts or were part of an otherwise indivisible course of conduct.’ ” (People v Harrison (1989) 48 Cal.3d 321, 335.) Even where a course of conduct is “ ‘directed to one objective,’ ” however, “it may ‘give rise to multiple violations and punishment’ if it is ‘divisible in time.’ ” (People v. Jimenez (2019) 32 Cal.App.5th 409, 424 (Jimenez); see also People v. Gaio (2000) 81 Cal.App.4th 919, 935 (Gaio).) Such temporal separation “ ‘ “afford[s] the defendant opportunity to reflect and renew his or her intent before committing the next [offense], thereby aggravating the violation of public security or policy already undertaken.” ’ [Citation.]” (Jimenez, supra, at p. 424.)

“A trial court’s express or implied determination that two crimes were separate, involving separate objectives, must be upheld on appeal if supported by substantial evidence.” (People v. Brents (2012) 53 Cal.4th 599, 618.) Substantial evidence is evidence that is reasonable, credible, and of solid value. (People v. Armstrong (2016) 1 Cal.5th 432, 450.) We review the court’s determination “in a light most favorable to the judgment, and presume in support of the court’s conclusion the existence of every fact the trier of fact could reasonably deduce from the evidence.” (Cleveland, supra, 87 Cal.App.4th at p. 271.)

3. Carjacking and Assault with a Deadly Weapon

Bacci argues that the trial court violated section 654 by imposing concurrent sentences for both carjacking and assault with a deadly weapon because the crimes were completed by a single physical act. Here, the trial court expressly found that the assault and the carjacking consisted of “separate incidents” committed with separate objectives. We conclude that substantial evidence supports the trial court’s factual determinations.

1. Step One: Single Act or Course of Conduct

“Whether a defendant will be found to have committed a single physical act for purposes of section 654 depends on whether some action the defendant is charged with having taken separately completes the actus reus for each of the relevant criminal offenses.” (Corpening, supra, 2 Cal.5th at p. 313.) Unlike Corpening, where the relevant offenses of robbery and carjacking both required a forcible taking, the relevant offenses here are assault with a deadly weapon and carjacking. Each of these offenses required more than a single physical assault. Assault with a deadly weapon, as charged under section 245, subdivision (a)(1), requires the use of a deadly weapon, not merely force likely to produce great bodily injury. Beyond the use of force or fear, “[t]he completed offense of carjacking requires ‘asportation or movement of the motor vehicle.’ [Citation.] . . . t involves the taking of a motor vehicle from the victims’ persons or immediate presence.” ([i]Capistrano, supra, 59 Cal.4th at pp. 886-887.)

We agree with Bacci that the element of taking and asportation may be met by assuming dominion and control of a vehicle, even if the victim remains inside it. (See, e.g., People v. Duran (2001) 88 Cal.App.4th 1371, 1375-1377 [taking occurs when a defendant “impose[s] his dominion and control over the car by ordering [the victim] to drive”].) Here, in attempting to compress the relevant offenses to a single act, Bacci asserts that “[t]he assault with the brick was the only use of force or fear.” But the trial court’s finding that Bacci’s offenses comprised a course of conduct, as opposed to a single act, was supported by substantial evidence of multiple acts: (1) Bacci assaulted C.B.—by punching, kicking, and strangling him—while the van was parked on Rincon near the Safeway; (2) Bacci also committed an assault with a deadly weapon—at an unknown location and time—by hitting C.B. in the head with a brick; and (3) Bacci “kicked [C.B.] out” of the van when it stopped mid-route on Mission Street and then drove off. There is no evidence of when Bacci struck C.B. with the brick, given C.B.’s inability at trial to recall what transpired between Bacci’s attack near the Safeway and his arrival at the hospital. At the time, Bacci expressed rage toward C.B. after he made comments about Bacci’s “girlfriend,” and there was no evidence that he had any initial intent to take the van. The only record evidence of when Bacci gained control of the van is the bystander testimony of C.B.’s leaving (or falling out of) the van when it stopped on Mission Street near Union, and the van then driving off. Based on these facts, Corpening is distinguishable because there is evidence that the assault occurred before Bacci committed the separate physical act of carjacking by forcing C.B. from the van and driving away. (See Corpening, supra, 2 Cal.5th at p. 315.)

We agree with Bacci that inferences that are the result of mere speculation or conjecture are not reasonable. (See People v. Hughes (2002) 27 Cal.4th 287, 365.) But it is Bacci who asks us to speculate that it was at the Safeway that Bacci assumed control of the van, rather than when C.B. was “kicked out” blocks away and minutes later.[11] (Cf. People v. Nunez (2012) 210 Cal.App.4th 625, 629-630 [assault was incidental to carjacking when defendant’s use of hammer against the victim was contemporaneous or simultaneous to taking of car].) The gaps in the trial record arguably allowed for such an inference but stop short of compelling it. For substantial evidence review, “we ignore competing inferences that could lead to a contrary conclusion” and view the record in the light most favorable to the judgment. (People v. Rodriguez (2021) 66 Cal.App.5th 749, 773.) On this record, substantial evidence supports the trial court’s factual determination that the two crimes comprised multiple physical acts.[12]

2. Step Two: Divisible Course of Conduct

Substantial evidence also supports the trial court’s finding of separate objectives for the assault and carjacking. C.B. testified that Bacci assaulted him in a rage, responding explicitly to C.B.’s comments about Bacci’s purported girlfriend. The earliest indication in the record of any motive to take C.B.’s van is with C.B.’s emergence from the van, after the two had left the Safeway and progressed to Mission Street at Union, when Bacci drove away. Thus, there was evidence that Bacci’s objective in committing the assault was to physically harm C.B. over his comments about Bacci’s girlfriend, which was separate from his later objective to take C.B.’s van. The trial court accordingly did not err in declining to stay the concurrent sentence for count 2 under section 654.

4. Reckless Evasion and Forcibly Resisting an Officer

Bacci concedes that his convictions for reckless evasion and forcibly resisting an officer arose out of a course of conduct rather than a single act, but he argues that only one term of imprisonment was authorized because the course of conduct was indivisible. We conclude that substantial evidence supports the trial court’s implied finding that Bacci’s vehicular evasion and his forcible resistance were either prompted by separate objectives or sufficiently separated in time to constitute divisible offenses.

Although Bacci maintains that his overarching objective remained to avoid capture by police, the weight of case authority allows the trial court’s finer distinctions in parsing multiple if overlapping objectives under section 654. For example, in Jimenez, the Court of Appeal found that section 654 did not preclude multiple punishments for evading the police and assault when, having just eluded one pursuing officer, the defendant drove on the wrong side of the road directly toward the vehicle of a second officer. (Jimenez, supra, 32 Cal.App.5th at pp. 425-426.) Jimenez reasoned that the trial court could have reasonably found that the defendant had time to reflect before committing the assault, as the evasion of the first officer and the assault of the second was “ ‘separated by periods of time during which reflection was possible.’ ” (Id. at p. 426.) The record was also sufficient to support the trial court’s implied finding that the intention to assault the second officer was not merely incidental to the intent to evade. (Id. at p. 425.)

Here, the trial court was likewise entitled to find that Bacci’s original effort to flee pursuing officers ended when he ran C.B.’s van into a tree; that his ensuing attempt to flee on foot ended when Brouillette seized him midway up the fence; and that at this point—after police had in fact captured him but before they had effectively subdued him—Bacci used force to resist the officers, first by swinging his elbow at Brouillette and then, even after officers tased him and took him to the ground, struggling against their efforts to handcuff him. According to Brouillette, it took approximately 30 seconds to pull Bacci’s arms out from underneath him and place him in handcuffs. As in Jimenez, the trial court could reasonably have determined that Bacci had sufficient temporal separation after colliding with the tree, or after failing to scale the fence, to have formulated a new intention oriented less to a now doomed escape plan than to physical defiance or retaliation for his arrest and tasing. (Jimenez, supra, 32 Cal.App.5th at p. 426.)

Bacci analogizes his case to L.J., supra, 72 Cal.App.5th 37 and claims that there is no evidence that he had any other objective other than to elude the police. L.J. is distinguishable. There, the minor fled police by car and, once cornered, accelerated toward patrol cars, striking three of them before resuming his flight. (Id. at p. 44.) The First Appellate District concluded that the minor’s reckless evasion and the assaults were based on the same course of conduct as the evidence reflected that the assaults were a result of “a clumsy and ill-advised attempt to escape the [police] blockade at the end of the dead-end street, rather than an intent to injure the officers . . . .” (Ibid.)

Unlike the minor in L.J., Bacci’s acts of forcibly resisting Brouillette—on the fence and again on the ground—followed his vehicular evasion of Baker’s pursuit; his crimes were committed sequentially rather than concurrently. (See L.J., supra, 72 Cal.App.5th at p. 45.) The temporal separation between Bacci’s acts supports the trial court’s determination that these were separate offenses. Bacci had the opportunity to reflect and renew his intent after he crashed the van and before he committed his ensuing multiple acts of forcible resistance. (See, e.g., Jimenez, supra, 32 Cal.App.5th at p. 426; Gaio, supra, 81 Cal.App.4th 919, 935 [temporal separation between offenses justified separate sentences under section 654]; People v. Fuentes (2022) 78 Cal.App.5th 670, 681 [defendant had time to reflect and consider next action after he crashed vehicle and fled on foot].)

For these reasons, we conclude that substantial evidence supports the trial court’s implied determination that Bacci had distinct objectives when he committed counts 4 and 5; thus, the trial court did not err when it imposed multiple punishments for his offenses.

3. Retroactivity of Recent Legislation

Bacci argues that remand for resentencing is required because he is entitled to retroactive application of Senate Bill No. 567, which amended section 1170, and Assembly Bill Nos. 124 and 518, which respectively amended sections 1170 and 654. The Attorney General concedes that remand for resentencing is required. We accept the concession.

1. Senate Bill No. 567

Effective January 1, 2022, Senate Bill No. 567 amended section 1170 to make the middle term the presumptive sentence. (§ 1170, subd. (b)(1).) Moreover, section 1170, subdivision (b)(2) authorizes a sentence above the middle term “only when there are circumstances in aggravation of the crime that justify the imposition of a term . . . exceeding the middle term, and the facts underlying those circumstances have been stipulated to by the defendant, or have been found true beyond a reasonable doubt at a trial by the jury or by the judge in a court trial.” (§ 1170, subd. (b)(2).)

As Bacci’s case was not yet final when these amendments to section 1170 took effect, he is entitled to retroactive application of the amended version of the statute: it is an ameliorative change in the law, and nothing in Senate Bill No. 567 indicates that the Legislature intended the change to apply only prospectively. (People v. Flores (2022) 73 Cal.App.5th 1032, 1039; In re Estrada (1965) 63 Cal.2d 740 (Estrada).)

Here, the trial court sentenced Bacci to the aggravated terms for carjacking, assault with a deadly weapon, and driving or taking a vehicle without consent. Although the trial court did not specify the factors upon which it relied in imposing the aggravated terms, it stated generally that it was “concerned” in part about “the vulnerability of the victim,” a fact neither admitted by Bacci nor found true by the jury as section 1170, subdivision (b) now requires. We are unable to determine whether the error was harmless under any standard on this record; thus, we conclude that we must reverse and remand the matter for resentencing. (See People v. Lopez (2022) 78 Cal.App.5th 459, 465-468; see also People v. Dunn (2022) __ Cal.App.5th __ , __ [2022 WL 2828730 at pp. *7-8]; cf. People v. Sandoval (2007) 41 Cal.4th 825, 838-840.)

Bacci does not dispute the Attorney General’s further contention that the district attorney may elect to either prove the existence of aggravating circumstances before a jury in compliance with section 1170, subdivision (b)(2) or submit to resentencing based on the current record.

We agree with the Attorney General that neither double jeopardy nor ex post facto principles bar the election on remand. Because Bacci has never been tried on any aggravating circumstance but only the bare elements of the offenses charged, jeopardy (if applicable to the trial of factors in aggravation) has not attached. (See People v. Monge (1997) 16 Cal.4th 826, 832 [double jeopardy clause “ ‘protects against a second prosecution or the same offense after acquittal’ ”].) Because section 1170, subdivision (b)(2) does not increase the punishment for an offense beyond the maximum term originally prescribed for the charged offenses, the application of section 1170, subdivision (b)(2) does not constitute an ex post facto law. (See Collins v. Youngblood (1990) 497 U.S. 37, 46 [ex post facto law is one that imposes an additional punishment to what was originally prescribed].) Thus, on remand, there is no constitutional barrier to affording the district attorney the opportunity to prove the existence of aggravating circumstances in compliance with the amended statute.

2. Assembly Bill Nos. 124 and 518

Bacci argues that he is entitled to remand for resentencing in light of Assembly Bill Nos. 124 and 518, which further amended sections 1170 and 654 respectively, effective January 1, 2022.[13] Section 1170, subdivision (b)(6), now provides: “unless the court finds that the aggravating circumstances outweigh the mitigating circumstances that imposition of the lower term would be contrary to the interests of justice, the court shall order imposition of the lower term” upon a finding that any of certain enumerated conditions were “a contributing factor in the commission of the offense.” (Stats. 2021, ch. 731, § 1.3.) As amended, section 654, subdivision (a) no longer requires that an act or omission punishable by multiple statutes be punished under the statute providing for the longest term of imprisonment and now permits the trial court to sentence a defendant “under either of such provisions.” (Stats. 2021, ch. 441, § 1.) The Attorney General appropriately concedes that these further ameliorative changes apply to Bacci on resentencing under Estrada, supra, 63 Cal.2d 740.

As we remand for resentencing under Senate Bill No. 567, the trial court may reconsider all of its prior sentencing decisions as to all counts under the statutes now in effect, including both section 1170, subdivision (b)(6) and the current version of section 654. (See People v. Buycks (2018) 5 Cal.5th 857, 893.)

3. DISPOSITION

The judgment is reversed and remanded for the sole purpose of resentencing under Penal Code section 654 as amended by Assembly Bill No. 518 and Penal Code section 1170 as amended by Senate Bill No. 567 and Assembly Bill No. 124. The district attorney may elect to prove circumstances in aggravation in support of imposition of upper terms as required under Penal Code section 1170, subdivision (b)(2) or submit to resentencing on the current record.

LIE, J.

WE CONCUR:

GREENWOOD, P.J.

GROVER, J.

Lin v. Jin et al.

H048817

[1] Unspecified statutory references are to the Penal Code.

[2] The minute order reflects that the enhancements for Bacci’s prior prison terms (§ 667.5, subd. (b)) and one prior serious felony conviction (§ 667, subd. (a)) were stricken.

[3] The peace officer’s motor vehicle must be distinctively marked, exhibit at least one lighted red lamp, and sound its siren. (Veh. Code, § 2800.1, subd. (a)(1).) Bacci does not argue that there was insufficient evidence of any of the elements described in Vehicle Code section 2800.1.

[4] The Legislature has in other contexts expressly conditioned liability to circumstances where “[another] vehicle may be affected by the [driver’s] movement.” (Veh. Code, § 22107.)

[5] Vehicle Code section 2800.2, subdivision (b), for example, permits a finding of reckless disregard based upon no more than evidence of three moving violations, without any showing of actual risk to pedestrians or motorists. (Veh. Code, § 2800.2, subd. (b); People v. Walker (2021) 64 Cal.App.5th 27, 34.) But the jury was not instructed on this theory.

[6] When asked if it would be “dangerous to life and property” for a vehicle to drive down the wrong side of the road, Brouillette answered, “[e]xtremely.” And when asked if it would be dangerous to life and property to run through a red light across an intersection with four lanes, Brouillette answered, “[e]xtremely.”

[7] The record is silent as to the speed limit in the vicinity of Market and Water, though the officers generally testified that Bacci drove at a speed of 20 or 25 miles per hour and did not exceed 30 miles per hour.

[8] In his opening brief, Bacci argues that the actus reus for counts 1 through 3 were the same. The trial court stayed under section 654 his sentence for count 3.

[9] Although defense counsel raised no objection under section 654 to the imposition of sentences for counts 4 and 5, “a section 654 claim is not waived by failing to object below.” (People v. Hester (2000) 22 Cal.4th 290, 295.)

[10] At the time Bacci was sentenced, former Section 654, subdivision (a) provided in pertinent part 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.” Effective January 1, 2022, section 654 was amended by Assembly Bill No. 518 (Stats. 2021, ch. 441, § 1). We address Bacci’s claim that he is entitled to retroactive application of the amendments made to section 654 by Assembly Bill No. 518 in part C.2, post, of this opinion.

[11] Also implicit in Bacci’s argument is the premise that his striking C.B.’s head with a brick necessarily preceded and was instrumental in Bacci’s assumption of control over the van, rather than a gratuitous act thereafter.

[12] To the extent Bacci implicitly argues that such gaps in the timeline of events be construed in his favor, he supplies no authority for this approach, and we are aware of none. (See, e.g., People v Ochoa (2016) 248 Cal.App.4th 15, 29, fn. 3 [defendant moving for dismissal under section 654’s bar on multiple prosecutions ordinarily bears burden].) Even where the prohibition on multiple punishment derives from a constitutional guarantee, it is the defendant who bears the burden of proving that the prohibition applies. (Dowling v. United States (1990) 493 U.S. 342, 350; People v. Braum (2020) 49 Cal.App.5th 342, 357.) We see no basis to allocate the burden differently here, where the failure of evidence seems attributable to Bacci’s use of force sufficient to eventually cause C.B. to lose consciousness.

[13] Senate Bill No. 567, which was enacted after Assembly Bill No. 124, incorporated the amendments to section 1170 that were proposed by Assembly Bill No. 124. Because it was enacted last, Senate Bill No. 567 takes precedence over Assembly Bill No. 124. (In re Thierry S. (1977) 19 Cal.3d 727, 738 [“the bill signed last is the one which takes precedence”].) For clarity, we refer to Assembly Bill No. 124, as opposed to Senate Bill No. 567, when discussing the amendment to add subdivision (b)(6) to section 1170.