Filed 10/26/18 P. v. Avalos CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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Defendant Maria Guadalupe Avalos, driving without a license, ran over the victim with her car then fled the scene. A jury found her guilty of three felonies and a misdemeanor. Sentenced to state prison, defendant appeals. She contends the trial court erred by: (1) not staying the sentence for hit and run under Penal Code section 654[1] and (2) imposing consecutive terms for her crimes. We conclude both claims lack merit and affirm the judgment.

BACKGROUND

A. Underlying Facts

On May 8, 2014, Elaine Stuckey was driving with her seven-year-old great-grandson in the car when she stopped at a red light. She was in the leftmost lane, leaving two left turn lanes on her left and a lane on her right. The lane to her immediate left was open.

Defendant was driving behind Stuckey and rear-ended Stuckey’s vehicle at the red light. Defendant revved her engine. Stuckey got out of her vehicle and approached defendant’s vehicle; she asked defendant for her insurance information. Defendant did not respond but smirked at Stuckey. Stuckey walked back to her car to call the police. Stuckey retrieved something from her car then started walking back toward defendant.

As Stuckey was walking, defendant backed up her vehicle—freeing it from Stuckey’s bumper. Stuckey was looking downward. Defendant “punched” the gas and “took off really fast.” Defendant’s car hit Stuckey near the driver’s side of Stuckey’s vehicle and Stuckey’s body landed on the hood of defendant’s car. Defendant did not stop but rather drove through the left turn lane and entered the intersection. As defendant continued to drive, Stuckey’s body fell from the hood and under defendant’s car. Defendant then turned left and Stuckey’s body rolled from under defendant’s car into the intersection. Defendant still did not stop.

Witnesses ran into the intersection to attend to Stuckey and shield her from oncoming traffic. Stuckey was unable to move but expressed concern for her great-grandson who was still in the vehicle.

Defendant stopped her vehicle at another intersection; a witness approached her and told her she needed to stay put. Defendant initially complied then tried to walk away. According to the witness, defendant was “ ‘freaking out’ ” and “wasn’t in her right mind.” The witness grabbed defendant and escorted her back to the collision scene. The witness told defendant she was involved in a hit and run; defendant said, “ ‘It’s okay, I have insurance.’ ” The witness was able to get defendant to sit down, at which point defendant said, “ ‘I know I hit somebody but I’m schizophrenic.’ ” Defendant never tried to help Stuckey.

Officers responded to the scene. Defendant refused to complete a roadside sobriety test and she was detained. A subsequent blood test did not reveal the presence of alcohol or drugs in defendant’s system.

Stuckey was transported to the hospital and spent two weeks in the intensive care unit and approximately four weeks in a “rehab hospital.” She had broken bones in her leg and ankle, a cracked pelvis, and fractures in her back. It was nearly four months before Stuckey could walk on her own.

B. Charges, Trial, Conviction, and Sentence

The People charged defendant with failing to report an accident involving injury (Veh. Code, § 20001, subd. (a) (“hit and run”)), misdemeanor driving a vehicle without a valid driver’s license (Veh. Code, § 12500, subd. (a)), assault by means likely to produce great bodily injury (§ 245, subd. (a)(4)), and assault with a deadly weapon (§ 245, subd. (a)(1)). The People further alleged, with regard to the felony charges, that defendant personally inflicted great bodily injury on Stuckey. (§ 12022.7, subd. (a).)

At trial, defendant presented evidence that she suffered from severe bipolar 1 disorder with psychotic features. The disorder can impair awareness of a person’s surroundings and can produce psychotic symptoms, including paranoia. At the height of a manic episode, people suffering from bipolar disorder can walk and talk but they often make poor decisions. How aware the person is of their environment will depend on the individual and the severity of the mania.

In May 2014, defendant was exhibiting symptoms of the disorder. Approximately two days after she ran over Stuckey with her car, defendant was hospitalized. She was not discharged until June 10, 2014.

Two witnesses testified on defendant’s behalf. Both testified that defendant is neither an angry nor a violent person.

The jury found defendant guilty as charged.

Before sentencing, the trial court indicated it did not agree with the probation department’s conclusion that other than the conviction for driving without a license, defendant’s crimes were all committed “during a continuous course of criminal conduct where the defendant harbored a single criminal objective” and thus subject to a stay pursuant to section 654. The court asked both parties to address the issue at or before the sentencing hearing.

At sentencing, the People agreed the sentences for defendant’s assault and assault with a deadly weapon convictions were subject to section 654. Defendant’s hit-and-run conviction, however, the People argued was a “separate act,” not subject to section 654. Defendant agreed with the conclusion of the probation department, that her crimes were committed during a continuing course of conduct. The court was not persuaded by defendant’s argument.

The trial court found “defendant harbored two separate criminal objectives: First, to flee, and the second to strike the victim. They were—the convictions were separate. The facts, while occurred on the same occasion, it is clear to the Court from the evidence that was presented during the trial that the defendant did harbor two separate criminal objectives in this case. [¶] . . . [¶]

“The evidence on the record convinces this Court that the defendant intended to flee the scene of a minor traffic collision because she was driving without a valid driver’s license to drive. When the victim announced that she was going to call the police, it was apparent that the defendant assaulted the victim with her vehicle in retribution when she could have fled the scene without doing so. She continued to flee the scene until detained by four or five witnesses to this tragic event.”

The trial court sentenced defendant to an aggregate term of seven years 180 days: three years for assault with a deadly weapon (plus three years for personally inflicting great bodily injury), a consecutive term of one year for the hit and run, and a consecutive term of 180 days for driving without a license. The court also found that defendant’s conviction for assault by means likely to produce great bodily injury arose from the “same conduct and criminal objective as” her conviction for assault with a deadly weapon. The court, therefore, stayed the sentence on defendant’s assault conviction pursuant to section 654. The trial court ordered defendant to pay various fines and fees and awarded her 81 days of custody credit.

DISCUSSION

A. Section 654

The trial court imposed consecutive terms for defendant’s convictions for hit and run and assault with a deadly weapon. Defendant contends section 654 required the trial court to stay the term for her hit-and-run conviction.

Section 654 prohibits multiple punishments for offenses arising from a single act or an indivisible course of conduct. (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) It provides: “An 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. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.” (§ 654, subd. (a).) “[T]he purpose of section 654 ‘is to insure that a defendant’s punishment will be commensurate with his [or her] culpability.’ [Citation.]” (Latimer, at p. 1211.)

“ ‘ “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.” ’ [Citation.]” (People v. Capistrano (2014) 59 Cal.4th 830, 885, overruled on other grounds in People v. Hardy (2018) 5 Cal.5th 56, 104.) “If, on the other hand, in committing various criminal acts, the perpetrator acted with multiple criminal objectives that were independent of and not merely incidental to each other, then he [or she] may be punished for the independent violations committed in pursuit of each objective even though the violations were parts of an otherwise indivisible course of conduct. [Citation.]” (People v. Alvarado (2001) 87 Cal.App.4th 178, 196.)

“ ‘ “The defendant’s intent and objectives are factual questions for the trial court; [to permit multiple punishments,] there must be evidence to support [the] finding the defendant formed a separate intent and objective for each offense for which he [or she] was sentenced.” ’ [Citation.]” (People v. Capistrano, supra, 59 Cal.4th at p. 886, overruled on other grounds in People v. Hardy, supra, 5 Cal.5th at p. 104.) Our Supreme Court recently clarified that whether multiple punishments were improperly based upon a single physical act is reviewed de novo. (People v. Corpening (2016) 2 Cal.5th 307, 312.) This standard applies when the facts themselves are undisputed. The facts in Corpening were settled as the basis for the defendant’s plea agreement. (Id. at p. 309.) Similarly, in this case, the parties do not appear to disagree about the facts—they disagree about their legal significance. When section 654 prohibits multiple punishments, the trial court must stay execution of sentence on the convictions that implicate multiple punishments. (People v. Correa (2012) 54 Cal.4th 331, 337.)

There is evidence from which we deduce multiple objectives in defendant’s crimes. When defendant fled the scene, she drove directly at Stuckey. She floored the gas; she did not drive in the open left turn lane and she did not drive on the passenger’s side of Stuckey’s car. There is no evidence defendant honked her horn or otherwise alerted Stuckey to get out of the way. Moreover, after she hit Stuckey, defendant did not stop to help Stuckey. Instead, she continued to drive, dragging Stuckey into the intersection. Reviewing this evidence, we conclude defendant’s objective was not merely to flee the scene but to flee the scene and to injure Stuckey.

Accordingly, on this record, we find no error.

B. Concurrent Terms

Defendant also contends the trial court erred by imposing consecutive rather than concurrent terms for assault with a deadly weapon and hit and run. She bases this contention on the same arguments she used concerning the section 654 issue. For the same reasons, we reject the contention.

California Rules of Court, rule 4.425(a) sets for criteria affecting the decision to impose concurrent or consecutive sentences, including whether “[t]he crimes and their objectives were predominantly independent of each other;” “[t]he crimes involved separate acts of violence or threats of violence;” and “[t]he crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior.” Only one criterion favoring imposition of consecutive sentences is necessary to support consecutive sentencing. (People v. Bravot (1986) 183 Cal.App.3d 93, 98.)

When consecutive sentences are permitted under section 654, we review the trial court’s decision to impose them for abuse of discretion. (See People v. Bradford (1976) 17 Cal.3d 8, 20.)

Defendant argues the trial court abused its discretion in imposing consecutive sentences for her hit and run and assault with a deadly weapon convictions because there was no evidence she “had any objective other than getting away from the scene of the collision.” The trial court explained how the two crimes were separated and the court’s explanation is supported by substantial evidence, as we previously discussed. We thus conclude there was no error.

DISPOSITION

The judgment is affirmed.

/s/

Blease, Acting P. J.

We concur:

/s/

Mauro, J.

/s/

Renner, J.