P. v. Burks

Filed 7/20/07 P. v. Burks CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Fresno County. Gary R. Orozco, Judge.

William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Ruth M. Saavedra, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant Rodney Twain Burks pled no contest to carjacking (Pen. Code, 215, subd. (a);^[1]count 1), assault with deadly weapon by means or force likely to produce great bodily injury ( 245, subd. (a)(1); count 2), driving in willful or wanton disregard for safety of persons or property while fleeing from pursuing police officer (Veh. Code, 2800.2; count 3), theft and unlawful driving or taking of a vehicle (Veh. Code, 10851, subd. (a); count 4) and elder abuse ( 368, subd. (b)(1); count 5). He admitted special allegations of the following: in committing the count 1, 2 and 5 offenses he personally inflicted great bodily injury ( 12022.7, subd. (a)); he suffered two prior felony convictions, each of which qualified as a strike^[2] and as a prior serious felony conviction ( 667, subd. (a)); and he served a prison term for a prior felony conviction

( 667.5, subd. (b)). The court imposed a prison term of 64 years to life, with the determinate portion of the term consisting of the following: consecutive 25-year terms on each of counts 1 and 3; three years on one of the great bodily injury (GBI) enhancements; five years on each of the prior serious felony enhancements; and one year on the prior prison term enhancement. The court also imposed concurrent 25-years-to-life terms on each of counts 2 and 5, and imposed and, pursuant to section 654, stayed execution of a term of 25 years to life on count 4.

On appeal, appellant contends (1) the court erred in failing to stay, pursuant to section 654, execution of sentence on counts 2 and 5; and (2) the abstract of judgment erroneously indicates the court imposed three GBI enhancements of one year each rather than one three-year GBI enhancement. The People concede each of these points. We will modify the judgment to provide that execution of sentence on the count 2 and 5 substantive offenses and accompanying enhancements be stayed; direct the preparation of an amended abstract of judgment; and in all other respects affirm.

FACTS^[3]

At approximately 5:19 a.m., on March 25, 2006, police officers, investigating a carjacking report, made contact with William Lekel, who was bleeding heavily. Lekel told the officers the following. He was unlocking the gate of the car dealership at 621 Van Ness Avenue in Fresno, California, where he worked, when an African-American man approached and greeted him. Lekel returned the greeting and turned his attention back to the lock, at which point the man hit Lekel on the head four or five times with an unknown hard object. Lekel fell to the ground. When he got up he noticed his car, a black Toyota Celica, was missing. Lekel called 911.

At some point thereafter, police officers saw Lekels car being driven by an African-American male in the Chinatown area of Fresno. Officers followed the car and, as it headed for an on on-ramp to Highway 99, activated their emergency lights and sirens. At that point, the Toyota sped off, with the officers in pursuit. The Toyota reached speeds of 100 miles per hour as it traveled on Highway 99. Eventually, the driver, attempting to exit the freeway, lost control of the car, which then hit a guardrail and came to rest in a pond. The pursuing officers saw a person swimming near the car and ordered him to stop. The person, later identified as appellant, surrendered and was taken into custody.

Lekel was taken to a hospital, where a CAT scan revealed [a] fairly extensive right Subdural Hematoma. Lekel also required a blood transfusion.

At sentencing, the prosecutor represented to the court that Lekel was 67 years old.

DISCUSSION

Section 654

Appellant contends, and the People concede, the court erred in failing to stay execution of sentence on counts 2 and 5 pursuant to section 654. We agree.

Section 654 prohibits punishment for two offenses arising from the same act or from multiple acts comprising an indivisible course of conduct. (People v. Latimer (1993) 5 Cal.4th 1203, 1207-1208.) In determining whether a course of conduct consisting of multiple acts is indivisible, we look to the defendants intent and

objective . . . . (Peoplev.Harrison (1989) 48 Cal.3d 321, 335.) [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. (Ibid.) On the other hand, [i]f [the defendant] entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations 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. Beamon (1973) 8 Cal.3d 625, 639.) Where multiple punishments are precluded by section 654, both concurrent and consecutive sentences are prohibited. (People v. Deloza (1998) 18 Cal.4th 585, 592.)

Here, as indicated above, the carjacking (count 1), assault (count 2) and elder abuse (count 5) arose out of the same incident, and the court described these offenses as arising out of the same transaction, having the same criminal objective. !(RT 31)! As the parties agree, these offenses constitute an indivisible course of conduct. Therefore, the imposition of concurrent terms on counts 2 and 5 violates section 654.

Under these circumstances, the proper appellate response is to leave undisturbed the sentence imposed on count 1 and stay execution of sentence on the two terms imposed concurrently to the count 1 sentence. (People v. v. Dominquez (1995) 38 Cal.App.4th 410, 420) We will do so. Accordingly, we will stay execution of sentence on counts 2 and 5.

GBI Enhancements

The information alleged GBI enhancements ( 12022.7, subd. (a)) with respect to counts 1, 2 and 5; appellant admitted these allegations; and the court imposed sentence on one of them, but did not specify the count. The abstract of judgment, however, indicates that the court imposed all three enhancements.

Appellant argues, and the People concede, the abstract is in error and should be corrected. The parties describe the error as clerical, but given that the court erred in failing to stay sentence on counts 2 and 5, the error goes beyond the incorrect performance of a ministerial act. Staying sentence on the count 2 and 5 substantive offenses requires that sentence on the accompanying enhancements also be stayed. (People v. Bracamonte (2003) 106 Cal.App.4th 704, 709 [[w]here the base term of a sentenced is stayed under section 654, the attendant enhancements must also be stayed].) We will modify the judgment accordingly.

DISPOSITION

The judgment is modified as follows: As to each of counts 2 and 5, execution of sentence on the substantive offense and accompanying GBI enhancement is stayed pending service of sentence on count 1. The trial court is directed to prepare an amended abstract of judgment reflecting these modifications and to forward a copy of the amended abstract to the Director of Corrections. As so modified, the judgment is affirmed.

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^* Before Wiseman, Acting P.J., Cornell, J., and Gomes, J.

^[1] Except as otherwise indicated, all statutory references are to the Penal Code.

^[2] We use the term strike as a synonym for prior felony conviction within the meaning of the three strikes law ( 667, subds. (b)-(i), 1170.12), i.e., a prior felony conviction or juvenile adjudication that subjects a defendant to the increased punishment specified in the three strikes law.

^[3] Except as otherwise indicated, the factual statement is taken from the report of the probation officer.