P. v. Scott

Filed 9/6/07 P. v. Scott CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Jeffrey Prevost, Judge. Affirmed in part; reversed in part with directions.

Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Pamela Ratner Sobeck, Supervising Deputy Attorney General, and David Delgado-Rucci, Deputy Attorney General, for Plaintiff and Respondent.

INTRODUCTION

A jury found defendant guilty of two counts of using force upon a police officer and one count of resisting arrest. (Pen. Code, 243, subd. (c)(2), 69.) Defendant admitted four prior prison term enhancements. (Pen. Code, 667.5, subd. (b).) The court sentenced defendant to six years eight months in state prison. Defendants sole contention is the sentence for resisting arrest should be stayed because it resulted from the same indivisible course of conduct as the first count of using force upon a peace officer. (Pen. Code,  654.) The People support defendants arguments. We agree.

FACTS

On November 28, 2005, Riverside Police Officers Warren and Smith were on patrol in a marked police car. The officers stopped near a group of people on the street and the individuals began to disperse.

Officer Smith recognized defendant and began to follow him in the police car. Officer Smith informed Officer Warren that defendant was a suspect in a stolen vehicle case. Officer Smith shouted at defendant, asking his name or asking him to walk toward the officers. Defendant began approaching the officers. Officer Warren exited the car, approached defendant, and asked him to step toward the front of the car. Defendant complied. Officer Smith then exited the police car. Officer Smith informed defendant that he was being detained as a suspect in a stolen vehicle case.

Officer Warren began handcuffing defendant. When Officer Warren placed one brace on defendant, he ran from the officers. Both officers chased after defendant, commanding him to stop. Defendant attempted to jump over a chain link fence, but his foot became ensnared and he fell to the ground. Officer Smith grabbed defendants foot, but defendant broke free and continued to run.

Eventually, defendant fell down and Officer Warren was able to straddle defendants back. Defendant violently resisted while both officers attempted to move defendants arms. Officer Warren attempted a carotid restraint hold, but had difficulty. Officer Smith struck defendant twice in the back with his elbow, and punched him twice in the face.

During this struggle, defendant snapped his head back, striking Officer Warrens head. Defendant also struck Officer Smith in the face. Officer Warren was able to effectively apply the carotid restraint hold, which allowed the officers to handcuff defendant.

At the sentencing hearing, the court asked the People, Is there a 654 problem with respect to Count 3? Count 3 refers to defendants conviction for resisting Officer Warrens attempt to arrest him. (Pen. Code, 69.) The People responded, No, Your Honor. The court asked, You dont think so? The People responded, No.

The six-year eight-month sentence was composed of two years for counts 1 and 2, served concurrently; eight months for count 3, served consecutively; and one year for each prior prison term enhancement, served consecutively.

DISCUSSION

Defendant contends an indivisible course of conduct led to his convictions for using force upon Officer Warren (count 1) and resisting Officer Warrens attempt to arrest him (count 3). Defendant requests we direct the superior court to stay the sentence for count 3 pursuant to Penal Code section 654. The People support defendants contention. We agree.

Penal Code section 654 provides that a trial court may not punish a defendant under more than one provision of the Penal Code if the defendants crimes result from an indivisible course of conduct. (People v. Siko (1988) 45 Cal.3d 820, 823.) Whether a course of conduct is divisible and, therefore, punishable by more than one section of the Penal Code is determined by the intent and objective of the defendant at the time of the offense; if all of the offenses were incident to one objective, the defendant may be punished under only one section of the Penal Code. (People v. Hawkins (2002) 98 Cal.App.4th 1428, 1442-1443.)

It is the duty of the trial court to determine if a defendant has multiple criminal objectives at the time of the offense; if the court determines a defendant has more than one objective, then that finding will be upheld on appeal if supported by substantial evidence. (People v. Saffle (1992) 4 Cal.App.4th 434, 438.)

The trial courts questions of the People in regard to Penal Code section 654 clearly expressed concerns that count 3 was part of the same indivisible course of conduct as count 1. Count 3 charged defendant with resisting Officer Warrens attempt to arrest him. Count 1 charged defendant with using force upon Officer Warren during the attempt to arrest him. Both counts address actions that were commonly linked by defendants objective to escape from Officer Warren; there is no evidence to indicate defendant had any other intent. Accordingly, we find defendants conduct arose from an indivisible course of conduct, as there is a lack of substantial evidence to support a finding that defendant had more than one criminal objective at the time he committed the offenses in counts 1 and 3.

DISPOSITION

The sentence is affirmed as to counts 1 and 2. The sentence is reversed as to count 3. We direct the Superior Court of Riverside County to stay the sentence for count 3, pursuant to Penal Code section 654. The superior court clerk is directed to correct the abstract of judgment to reflect that the sentence for count 3 is stayed, and forward a corrected copy of the abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P.J.

We concur:

HOLLENHORST

J.

GAUT

J.

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