P. v. Gerolaga

Filed 1/8/09 P. v. Gerolaga CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(San Joaquin)

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A jury convicted defendant Anthony Oscar Gerolaga of causing serious bodily injury while evading a police officer (Veh. Code,  2800.3) and failing to perform a duty at the scene of an injury accident (Veh. Code,  20001, subd. (b)(2)).

The court sentenced defendant to state prison for the upper term of seven years for the evading offense and a consecutive one-third the midterm or one year for the failing to perform a duty offense.

Defendant appeals, contending that Penal Code section 654 precluded punishment for both offenses. We disagree and will affirm the judgment.

FACTS

In August 2006, the sheriffs department received information that defendants brother, Kevin Gerolaga, who was armed and dangerous, was visiting family in the area and had entered a white Chevy Blazer.^[1] Sergeant Michael Jones, who sat in his patrol car at a gas station at the corner of West Lane and Alpine in Stockton looking for the Blazer, saw the Blazer with a white male driver and a Hispanic male front seat passenger later identified as defendant. The license on the Blazer matched that given in the tip. Sergeant Jones pulled behind the Blazer, notified dispatch, and requested additional units. After additional units joined Sergeant Jones, he activated his light bar to pull the Blazer over. The Blazer stopped in the middle of the lane it was travelling in and the driver, Rick Telitz, got out with his hands in the air. As Telitz walked away from the Blazer, defendant, the front seat passenger, slid over behind the wheel and drove off. With his lights and siren activated, Sergeant Jones pursued the Blazer. Sergeant Jones saw someone, later identified as Kevin, climb from the back seat of the Blazer to the front passenger seat. The Blazer sped down the street and at a railroad crossing, it went off road next to the tracks. Sergeant Jones did not follow. The Blazer went through a parking lot near the tracks and turned onto March Lane. Deputy Randal Johnson was near the tracks, saw the Blazer, and followed with his lights and siren activated. Deputy Johnson briefly lost sight of the Blazer and when he next saw it, the Blazer had travelled westbound in the eastbound lanes and collided with a pickup truck driven by Jerry Smith.

Defendant, the driver, and Kevin, the passenger, got out of the Blazer and fled on foot. They went through a field and jumped over a fence into an apartment complex. A civilian detained defendant at the apartment complex and turned him over to the deputies. Kevin, the passenger, was never found.

Smith, the driver of the pickup truck, was hospitalized for 12 days. He suffered a shattered right hip and pelvis, a broken forearm, and a broken tooth. He had had two surgeries at the time of trial and needed at least one more surgery after trial. He used a cane or walker to walk and was in pain all the time.

After his arrest, defendant was taken to the hospital for an injury to his right ankle.

DISCUSSION

In imposing a consecutive sentence for the failing to perform a duty offense, the court found that the offense had a completely separate operative set of facts and a separate criminal intent from [the evading offense]. Defendant argues the evading offense and the failing to perform a duty offense were part of a continuous course of conduct which required a stay of sentence on the failing to perform a duty offense pursuant to Penal Code section 654. We reject defendants contention.

Penal Code section 654, subdivision (a), provides, in relevant part, as follows: 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.

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. Latimer (1993) 5 Cal.4th 1203, 1208, italics omitted.) A trial courts 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. [Citation.] (People v. Blake (1998) 68 Cal.App.4th 509, 512.)

Defendant cites People v. Britt (2004) 32 Cal.4th 944 (Britt) at page 952 for the proposition that Penal Code section 654 depends on his objective in violating the statutory provisions prohibiting his conduct, not the Legislatures purpose in enacting the provisions. Defendant contrasts Britt with In re Hayes (1969) 70 Cal.2d 604 (Hayes) where the defendants offenses of driving while intoxicated and driving on a suspended license, although simultaneously committed, neither was a means toward committing the other and were two separate and distinct criminal acts. (Id.at pp. 605, 607-611.) Defendant argues that his offenses are more analogous to those in People v. Rosenberg (1963) 212 Cal.App.2d 773 (Rosenberg) than to those in People v. Butler (1986) 184 Cal.App.3d 469 (Butler). Defendant argues that his leaving the scene of the accident was incidental to his evading the officers, claiming the only thing he did was flee on foot after the accident. He claims his intent and objective to avoid the police never changed.

In Britt, the defendant, a registered sex offender, changed residence within California and failed to notify both the authorities in the county from which he moved and to which he moved. Britt found Penal Code section 654 applied because the defendants objective--avoiding police surveillance--was achieved just once, but only by the combination of both reporting violations. (32 Cal.4th at p. 953.) Further, Britt distinguished Hayes -- the [d]efendants violation of both reporting provisions constituted the means of achieving the common end of avoiding police surveillance. (Britt, supra, at p. 953.) Britt found that the defendant had a single objective: to prevent any law enforcement authority from learning of his current residence. (Id. at p. 952.)

In Rosenberg, the defendant was charged with four felonies and entered a plea to two counts, grand theft and forgery. With respect to grand theft, it was alleged that on or about April 20, 1961, the defendant took merchandise worth $291.15 belonging to Claude Steen. (212 Cal.App.2d at p. 774.) With respect to forgery, it was alleged that on or about the same date, the defendant did willfully, unlawfully, fraudulently and feloniously make, pass, utter and publish a certain fictitious check and order in writing for the payment of money in the sum of Thirty Five and 00/100 Dollars . . . knowing said check to be fictitious as aforesaid, with intent then and there to cheat and defraud Claude Steen. (Ibid.) The court sentenced defendant to state prison for concurrent terms. (Id.at pp. 774-775.) On appeal, the defendant claimed that he could not be sentenced for both because both violations of law arose out of but one single course of conduct directed toward dispossessing the victim of a television set. (Id. at p. 775.) Rosenberginitially noted that there had been no trial and that by pleading, defendant had admitted that the offenses were separate and not indivisible. (Id.at pp. 775-776.) In the probation report, however, the facts of the offenses were recounted suggesting that the offenses were indivisible. The report stated that on April 20, 1961, the defendant telephoned Mr. Steen, the owner of a television shop, with respect to the purchase of a television set. He gave Mr. Steen credit references, stating that his name was Jerome Hoffman. Later in the day the defendant came to Mr. Steens store and presented a check for the sum of $35 as down payment on the set. He said that he had received the check a few days earlier from the maker thereof. The set was then delivered to the defendant, it being placed in his automobile. (Id. at pp. 776-777.) Based on the probation report, Rosenberg concluded that the use of the check and the taking of possession of the television set were parts of a continuous course of conduct and were motivated by one objective, the theft of the set, the use of the check being incident to and a means of perpetrating the theft. [Citation.] Consequently, the defendant can be punished for one of the offenses but not for both. (Id.at p. 777.)

Rather than Rosenberg, we find Butler to be analogous here. In Butler, the defendant claimed that imposition of consecutive sentences for vehicular manslaughter and felony hit and run violated section 654. (184 Cal.App.3d at p. 470.) The defendant claimed that a person who, while driving under the influence of alcohol, causes a fatal accident and then flees the scene has engaged in only one indivisible course of conduct. (Id. at pp. 471-472.) Butlerfound that the defendant committed an independent and separate act when he intentionally left the scene of the accident and was not a means towards the other. (Id. at p. 474.)

Here, the trial court properly found that defendant had separate intents and objectives in committing the offenses. Defendant sped away from Sergeant Jones until he crashed into Smiths truck. Defendants intent and objective during that period of time was to evade the pursuing officer. The trial court could reasonably find that after the pursuit ended with defendants crash into Smiths truck, defendant had the separate intent and objective of avoiding the duties he owed to Smith and to the officer at the scene of the collision, that is, to assist Smith and to provide the required information. Britt and Rosenberg are thus distinguishable. The trial court may find separate objectives when the objectives were either (1) consecutive even if similar or (2) different even if simultaneous. (Britt, supra, 32 Cal.4th 944, 952.) The defendant in Butler, supra, 184 Cal.App.3d 469 made a claim similar to the claim defendant makes here. In rejecting the defendants claim, Butler stated that the purpose of Penal Code section 654 . . . is to insure that a defendants punishment will be commensurate with his culpability. If multiple punishment is prohibited in this case, as a matter of law, there would be no incentive for a person who causes an accident [while fleeing from police] to stop and render aid as required by Vehicle Code section 20001. In fact, noncompliance would be rewarded. A defendant would suffer no greater criminal liability if he took his chances on escaping than if he stopped and rendered aid. Our Legislature could not and did not intend such an absurd result. (Id. at p. 474.)

The trial court did not err in imposing consecutive sentences.

DISPOSITION

The judgment is affirmed.

CANTIL-SAKAUYE , J.

We concur:

MORRISON , Acting P. J.

ROBIE , J.

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^[1] To avoid confusion, we will refer to defendants brother as Kevin.