P. v. Garzon

 

 

 

 

 

 

 

Filed 5/24/13  P. v. Garzon CA2/1

 

 

 

 

 

 

 

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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  This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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

 

IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

 

SECOND
APPELLATE DISTRICT

 

DIVISION
ONE

 

 
>

THE PEOPLE,               Plaintiff and Respondent,               v.   WILLIAM WESLEY GARZON,               Defendant and Appellant.

B240633         (Los Angeles County       Super. Ct. No. KA093699)

 

            APPEAL from
a judgment of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County.  Steven D.
Blades, Judge.  Affirmed in part and
reversed in part with directions.

______

            Ava R.
Stralla, under appointment by the Court of Appeal, for Defendant and Appellant.

            Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and Seth P.
McCutcheon, Deputy Attorneys General, for Plaintiff and Respondent.

______

 

 

 

            An amended information, filed on March 12, 2012, charged William Wesley Garzon
with five counts:  (1) murder (Pen. Code,
§ 187, subd. (a)); (2) driving under the influence of any alcoholic beverage or
drug (Veh. Code, § 23152, subd. (a)); (3) driving with a blood alcohol
percentage of .08 percent or higher (Veh. Code, § 23512, subd. (b)); (4)
driving with knowledge of a suspended license (Veh. Code, § 14601.5, subd.
(a)); and (5) gross vehicular manslaughter while intoxicated (Pen. Code, §
191.5, subd. (a)).  The amended
information specially alleged that Garzon had prior convictions for driving
under the influence of alcohol and driving with a blood alcohol percentage of
.08 percent or higher (Veh. Code, § 23512, subds. (a) & (b)), once in 2008
and again in 2010, and a prior conviction for driving with knowledge
of a suspended license (Veh. Code, § 14601.5, subd. (a)).  After trial, the jury found Garzon guilty on
counts 2 through 5 and found true the special allegations regarding his prior
convictions.  The jury was unable to
reach a verdict on count 1, and the trial court dismissed that count without
prejudice.  The court sentenced
Garzon to a state prison term of 16 years 348 days to life, consisting of 15
years to life for gross vehicular manslaughter while intoxicated, with prior
convictions under Vehicle Code section 23512, plus a consecutive one-year term
for driving with knowledge of a suspended license and 348 days for a probation
violation.  The court imposed one-year
prison terms for the convictions for driving under the influence of any
alcoholic beverage or drug and driving with a blood alcohol percentage of .08
percent or higher but stayed execution of those sentences pursuant to Penal
Code section 654 (section 654).

            On appeal,
Garzon does not challenge his convictions but argues that the trial court erred
by failing to stay pursuant to section 654 execution of sentence of the one‑year
term imposed for driving with knowledge of a suspended license.  We disagree.

       A
defendant may be convicted of, but not punished for, more than one crime
arising out of the same course of conduct. 
(Pen. Code, §§ 954, 654.)  Under section 654, subdivision (a), “[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.”  “Section 654 [thus]
prohibits punishment for two offenses arising from the same act or from a
series of acts constituting an indivisible course of conduct.  [Citations.] 
‘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.  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.’
[Citations.]  On the other hand, if the
defendant entertained multiple criminal objectives that were independent and
not incidental to each other, he or she ‘may be punished for each
statutory violation committed in pursuit of each objective’ even though the
violations were otherwise part of an indivisible course of conduct.  [Citation.] 
‘“The principal inquiry in each case is whether the defendant’s criminal
intent and objective were single or multiple.” 
[Citation.]  “A defendant’s
criminal objective is ‘determined from all the circumstances . . . .’”’  [Citation.]” 
(People v. Sok (2010) 181
Cal.App.4th 88, 99, fn. omitted.)  “The
defendant’s intent and objective are factual questions for the trial court;
there must be evidence to support a finding the defendant formed a separate
intent and objective for each offense for which he was sentenced.  [Citation.]” 
(People v. Adams (1982) 137
Cal.App.3d 346, 355.)

      In sentencing Garzon, the trial court found that he had multiple
criminal objectives in driving with knowledge of a suspended license and in
committing gross vehicular manslaughter while intoxicated.  The court stated, “I’ll just indicate for the
record my reasoning for not staying [execution of sentence on count 4] pursuant
to section 654, [while] [defense counsel] may be correct that it is a crime
that should be stayed, I disagree because I think there was evidence in this
case that the defendant drove from the alcohol rehab class to pick up [the
victim], and he was in violation of 14601[.5] when he did that.  Then he changed places at the 7-Eleven and
drove [the victim], a mile and a half later was in the collision.  So I think those crimes are really
separate.”  The evidence supports the
court’s finding.  According to the
evidence, Garzon drove from his drug and alcohol program to the victim’s
home to pick her up to go out on the evening of March 17, 2011.  Then, after Garzon and the victim were at a
bar drinking, the victim drove them in the early hours of March 18, 2011,
to a 7-Eleven.  Upon leaving the
7-Eleven, Garzon drove the victim to take her home, but crashed his vehicle
several minutes later in route to her house, while his blood alcohol percentage
was somewhere between .14 percent and .18 percent.  The reasonable inference from this evidence
is that Garzon drove with knowledge of a suspended license so that he could
travel from his drug and alcohol program to pick up the victim for the evening
and then committed gross vehicular manslaughter while intoxicated when he
crashed his vehicle early the next morning, causing the victim’s death, while
driving with a blood alcohol percentage well above the legal limit.  The crimes, therefore, involved multiple
criminal objectives, and, as a result, the court was not required to stay
execution of sentence on count 4 for driving with knowledge of a suspended
license.

            Garzon also
contends, and the People agree, that the trial court erred by imposing a
15-percent limitation on the award of his conduct credits on the theory that
gross vehicular manslaughter while intoxicated is a violent felony under Penal
Code section 667.5, subdivision (c), because he received a life term.  (See Pen. Code, §§ 2933.1, subd. (a)
[“any person who is convicted of a felony offense listed in subdivision (c) of
Section 667.5 shall accrue no more than 15 percent of worktime credit”],
667.5, subd. (c)(7) [violent felony includes “[a]ny felony punishable
by death or imprisonment in the state prison for life”].)  Although Garzon received a life term for the
offense of gross vehicular manslaughter while intoxicated, the life term
resulted from his prior convictions for violating Vehicle Code section
23512.  (See Pen. Code, § 191.5,
subd. (d).)  The offense of gross
vehicular manslaughter while intoxicated is not a crime listed in
Penal Code section 667.5, subdivision (c), as a violent felony.  (In re Pope
(2010) 50 Cal.4th 777, 780 [gross vehicular manslaughter while intoxicated
“is not a qualifying violent felony for the purpose of the credit restrictions
imposed by section 2933.1(a)”].)  Thus,
the 15-percent limitation on conduct credits does not apply.  Because the court incorporated its award of
conduct credits into the sentence for Garzon’s probation violation, we remand
the matter for the court to recalculate conduct credits, and resentence Garzon
for the probation violation, without the 15-percent limitation.

DISPOSITION

            The
judgment is reversed to the extent that the trial court imposed a 15-percent
limitation in calculating Garzon’s conduct credits.  The matter is remanded for the court to
recalculate Garzon’s conduct credits without the 15-percent limitation and
accordingly adjust the sentence imposed for his probation violation.  In all other respects, the judgment is
affirmed.  The court is directed to
prepare an amended abstract of judgment and forward it to the href="http://www.fearnotlaw.com/">Department of Corrections and Rehabilitation.href="#_ftn1" name="_ftnref1" title="">[1]

            NOT TO
BE PUBLISHED.

 

 

 

                                                                                    ROTHSCHILD,
J.

 

 

We concur:

 

 

 

                        MALLANO,
P. J.

 

 

 

                        CHANEY,
J.