Filed 9/7/18 P. v. Brown CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Steven G. Counelis, Judge. Affirmed.

Nancy Susan Brandt, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Deputy Attorney General, for Plaintiff and Respondent.

FACTUAL AND PROCEDURAL HISTORY

A. PROCEDURAL BACKGROUND

On December 21, 2016, a first amended information charged defendant and appellant David Michael Brown with a felony violation of vehicular evasion of a peace officer with willful and wanton disregard for the safety of persons and property under Vehicle Code section 2800.2 (count 1), and a felony violation of attempt to elude a pursuing peace officer while driving on a highway in a direction opposite of traffic flow under Vehicle Code section 2800.4 (count 2). The information also alleged four prison priors within the meaning of Penal Code section 667.5, subdivision (b). On June 30, 2017, prior offense numbers 2 and 3 were stricken by interlineation. The information further alleged that defendant suffered a strike prior pursuant to Penal Code sections 667, subdivisions (c) and (e)(1), and 1170.12, subdivision (c)(1).

Trial commenced on February 2, 2017; on February 7 the jury convicted defendant on both counts. Defendant waived a jury trial on the prison priors. The trial court found true the prison priors and strike prior allegations.

On June 30, 2017, the trial court sentenced defendant to a total term of eight years in prison. For count 2, deemed the principal count because it involved a collision, the court imposed the upper term of three years, doubled to six years due to the strike prior. For count 1, the court imposed the low term of one year and four months, to run concurrently with count 2, For each of the two prison priors, the court imposed consecutive one-year term.

Defendant filed a timely notice of appeal on July 5, 2017.

B. FACTUAL BACKGROUND

At 10:08 p.m., on June 1, 2016, California Highway Patrol (CHP) Sergeant Richard Fuentes was traveling southbound on Interstate 215. A speeding Nissan Versa swerved into the lane directly in front of his patrol vehicle. Fuentes paced the Versa, which was traveling at speeds up to 85 miles an hour; he activated his patrol car’s lights and siren to pull the Versa over.

Instead of pulling over, the Versa exited the freeway at Murrieta Hot Springs Road. The vehicle ran a red light at the exit and then ran a second red light and merged over to travel on the wrong side of the road. Sergeant Fuentes continued traveling parallel to the Versa, on the correct side of the road. The Versa entered a parking lot; Fuentes lost visual contact with the vehicle and so terminated his pursuit. Before losing sight of the Versa, however, Fuentes observed that no one else was in the vehicle other than defendant.

Sergeant Fuentes was in radio contact with CHP dispatch during the pursuit and his dashcam recorded the incident. The duration of the recording was five minutes.

CHP Sergeants Marcne Francois and Brad Robinson heard Sergeant Fuentes’s radio calls; they headed north on Whitewood Road to intercept the Versa. Francois was at the wheel and Robinson made the radio calls.

At 10:22 p.m., the Versa turned left from Willowbend Drive onto Whitewood Road, directly in front of Sergeants Francois and Robinson. Francois activated his emergency lights and siren. The Versa’s lights were off and Francois had to slow down his patrol car to avoid hitting it. The Versa cut the corner across double yellow lines, in front of traffic that was coming from the north.

The Versa again crossed the double yellow lines and travelled northbound in the southbound lanes of Whitewood Road, against traffic. The car reached speeds of 65 and 70 miles an hour in a 45-mile-an-hour zone.

After chasing the Versa for almost five minutes, Sergeant Francois determined he should terminate the pursuit by ramming defendant’s vehicle, in order to protect the other drivers on the road. He caused his patrol car to ram the Versa, which caused it to stop at a dead end near the intersection of Whitewood and Clinton Keith Roads. Sergeants Francois and Robinson exited their vehicle, pointed their weapons at the car, and allowed a Murrieta Police Department K-9 unit to apprehend defendant, who was the driver of the Versa and the only occupant.

The pursuits involving both Sergeant Fuentes and Sergeants Francois and Robinson were recorded on dashcam devices. Both videos were played for the jury.

DISCUSSION

A. THE TRIAL COURT PROPERLY DECLINED TO STAY THE TERM IMPOSED ON COUNT 1 UNDER PENAL CODE SECTION 654

Defendant contends that the trial court erred when it failed to stay the concurrent term it imposed for count 1 under Penal Code section 654 (section 654), because both counts 1 and 2 were based on a continuous course of conduct with a common overall objective. For the reasons set forth below, we disagree with defendant and affirm the trial court.

1. BACKGROUND

At the sentencing hearing, the trial court said, “The—as to Count 1, I will be selecting the lower term of 16 months. . . . [A]nd I will run that concurrent to the three years [on count 2]. I find pursuant to 654 and the interest of justice that that is the appropriate sentence on Count 1.”

2. SECTION 654

Section 654 prohibits multiple punishments for different offenses that are committed in the course of a single intent or objective. Section 654, subdivision (a), provides in pertinent part, “[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.”

“The test for determining whether section 654 prohibits multiple punishment has long been established: ‘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.’ ” (People v. Britt (2004) 32 Cal.4th 944, 951-952.) “[I]f all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once. [Citation.] [¶] If, on the other hand, 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 parts of an otherwise indivisible course of conduct.’ ” (People v. Harrison (1989) 48 Cal.3d 321, 335.)

Moreover, “a course of conduct divisible in time, although directed to one objective, may give rise to multiple violations and punishment.” (People v. DeVaughn (2014) 227 Cal.App.4th 1092, 1113.) “Thus, a finding that multiple offenses were aimed at one intent and objective does not necessarily mean that they constituted ‘one indivisible course of conduct’ for purposes of section 654. If the offenses were committed on different occasions, they may be punished separately.” (People v. Kwok (1998) 63 Cal.App.4th 1236, 1253.)

“In the absence of an explicit ruling by the trial court at sentencing, [appellate courts] 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; see People v. Ortiz (2009) 174 Cal.App.4th 1354, 1378; People v. Hairston (2009) 174 Cal.App.4th 231, 239-240.) “[T]he imposition of concurrent terms is treated as an implied finding that the defendant bore multiple intents or objectives, that is, as a rejection of the applicability of section 654.” (People v. Alford (2010) 180 Cal.App.4th 1463, 1468.) The trial court is vested with broad discretion in making the factual determination of whether the defendant had separate intents and objectives, which warranted separate punishments under section 654. (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.) “A trial court’s implied finding that a defendant harbored a separate intent and objective for each offense will be upheld on appeal if it is supported by substantial evidence.” (People v. Blake (1998) 68 Cal.App.4th 509, 512.) Under the substantial evidence standard of review, the trial court’s determination is reviewed in the light most favorable to the judgment and presumes the existence of every fact the trial court could reasonably deduce from the evidence. (Jones, at p. 1143; People v. Akins (1997) 56 Cal.App.4th 331, 339.)

3. SEPARATE PUNISHMENT WAS PROPER

In this case, substantial evidence supports the court’s implied finding that defendant acted with multiple objectives because he evaded successive officers on separate occasions. The facts in this case are similar to the facts in People v. Hairston, supra, 174 Cal.App.4th 231. In that case, three officers responded to a 911 call after the defendant threatened someone with a handgun. (Id. at pp. 235-236.) Each officer separately confronted the defendant; the defendant ran from each of them. (Id. at p. 236.) On appeal, the defendant claimed that the trial court violated section 654 when it imposed concurrent jail terms for each of his three convictions for resisting arrest. (Hairston, at p. 239.) The appellate court held that the concurrent terms were appropriate. (Id. at p. 240.) The court reasoned that substantial evidence supported the trial court’s implicit determination that the defendant “formed a new and independent intent with each officer he encountered” and that his objectives were “to avoid arrest by each particular officer.” (Ibid.) The appellate court further reasoned that multiple punishments were justified because each flight “carried with it the potential for death or great bodily injury for the officer, for the defendant, and for differing sets of residents of the apartment complex where the three encounters occurred.” (Ibid.)

Here, similar to the defendant in Hairston who harbored the separate objectives of avoiding arrest by each of the three officers, defendant sought to evade each patrol car he encountered. In this case, defendant accomplished his first objective by evading Sergeant Fuentes. During the course of that pursuit, defendant attained speeds of up to 85 miles an hour, ran four red lights, and after making an illegal U-turn at the final red light, began driving eastbound (against traffic) in the westbound lane of Murrieta Hot Springs Road. After Sergeant Fuentes stopped following defendant, nine minutes passed before defendant exited the parking lot and drove through a residential neighborhood without any officers following him. Then, a second pursuit began when defendant turned onto Whitewood Road directly in front of Sergeant Francois’s vehicle, with his lights off, forcing the officer to slow down in order to avoid hitting defendant. At this point, defendant sought to accomplish his second objective by attempting to evade the second confrontation. After turning in front of the second CHP vehicle, defendant crossed two sets of double yellow lines and began driving northbound in Whitewood Road’s southbound lane (against traffic); he was traveling 65 to 70 miles an hour in a 45-mile-an-hour zone.

Notwithstanding, defendant argues that he did not harbor two separate objectives because “there is no evidence whatsoever that appellant knew that the second CHP vehicle (Sergeant Francois’s) was not the exact same CHP vehicle as the one (Sergeant Fuentes’s) that had pursued him nine minutes earlier. . . . This was not a case of ‘separate flights in different places from different vehicles.’ ” Defendant then goes on to state that “the only reasonable conclusion is that appellant’s driving, even including the nine minutes during which he was out of the officers’ sight, was a single course of action with a single objective.” We disagree with defendant. Even if defendant were unaware he evaded two different CHP vehicles, the two instances were two distinct events. As provided in detail above, after the first officer stopped following defendant when defendant entered a parking lot, nine minutes passed before the second pursuit started. During these nine minutes defendant was not pursued by any peace officer. Defendant had more than ample time to rethink his strategy or what he wanted to achieve. If the offenses were committed on different occasions, they may be punished separately. (People v. Kwok, supra, 63 Cal.App.4th at p. 1253.) “This is particularly so where the offenses are temporally separated in such a way as to afford the defendant [the] opportunity to reflect and to renew his or her intent before committing the next one, thereby aggravating the violation of public security or policy already undertaken.” (People v. Gaio (2000) 81 Cal.App.4th 919, 935; People v. Felix (2001) 92 Cal.App.4th 905, 915 [“multiple crimes are not one transaction where the defendant had a chance to reflect between offenses and each offense created a new risk of harm”].) Defendant argues that the “opportunity to reflect” does not apply to this case because defendant “was involved in the single act of ongoing flight from law enforcement.” We do not find defendant’s argument to be persuasive. As noted in detail ante, there were nine minutes between the first and second pursuits. Nine minutes gave defendant ample opportunity to reflect on his course of conduct.

Based on the above, we find substantial evidence to support the trial court’s implied finding of two separate objections and affirm the judgment.

B. THE TRIAL COURT PROPERLY SENTENCED DEFENDANT

Citing the Ninth Circuit Court of Appeal’s decision in United States v. Tighe (9th Cir. 2001) 266 F.3d 1187, defendant contends that the use of a juvenile adjudication as a prior strike conviction violated his Sixth and Fourteenth amendment right to have a jury determine any fact that increases his sentence above the statutory maximum under the principles articulated in Apprendi v. New Jersey (2000) 530 U.S. 466 and Blakely v. Washington (2004) 542 U.S. 296. However, not only did Apprendi specifically exclude prior convictions from those facts that must be submitted to a jury, but the California Supreme Court also expressly rejected this precise argument in People v. Nguyen (2009) 46 Cal.4th 1007, 1028.

In Nguyen, the California Supreme Court held that “the absence of a constitutional or statutory right to jury trial under the juvenile law does not, under Apprendi, preclude the use of a prior juvenile adjudication of criminal misconduct to enhance the maximum sentence for a subsequent adult felony offense by the same person.” (People v. Nguyen, supra, 46 Cal.4th at p. 1028.) The Nguyen court held that a prior juvenile adjudication could constitutionally be used as a strike under California’s Three Strikes law in subsequent adult proceedings even though juveniles are not entitled to a jury trial. (Ibid.) The Nguyen court reasoned that the use of reliably obtained juvenile adjudications to enhance later adult criminal proceedings does not offend an adult defendant’s constitutional right to a jury trial in adult criminal proceedings. (Id. at p. 1021.) If an accused adult is accorded his right to a jury trial in the adult proceeding as to all facts that influence the maximum permissible sentence, no reason appears why a constitutionally-reliable prior adjudication of criminality, obtained pursuant to all procedural guarantees—specifically including the right to proof beyond a reasonable doubt—should not also be for that sentencing purpose. (Id. at p. 1023.) The Nguyen court concluded “the Fifth, Six, and Fourteenth Amendments, as construed in Apprendi, do not preclude the sentence-enhancing use, against an adult felon, of a prior valid, fair, and reliable adjudication that the defendant, while a minor, previously engaged in felony misconduct, where the juvenile proceeding included all the constitutional protections applicable to such matters, even though these protections do not include the right to jury trial.” (Id. at p. 1019.) We are bound by the Nguyen holding. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 454-455.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

J.

We concur:

RAMIREZ

P. J.

McKINSTER

J.