P. v. Gueyger
Filed 4/22/13 P. v.
Gueyger 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NOT
TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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
(Sacramento)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
ERNESTO JOAQUIN GUEYGER et al.,
Defendants and Appellants.
C067862
(Super.
Ct. Nos. 10F03226, 10F03260 & 10F03449)
Defendants Ernesto
Gueyger and Rudy Ponce, along with Sergio Bravo,
stole cigarettes and snacks from a 7-Eleven store. A jury found Gueyger and Ponce
guilty of commercial burglary (Pen. Code,
§ 459), and petty theft with a prior
(§ 666). Gueyger was the getaway driver;
he led police on a high-speed chase, rammed a patrol car, and fled again before
the police apprehended him. In addition
to the burglary and theft charges, Gueyger was also found guilty of
after the fact (§ 32), recklessly evading the police (Veh. Code, § 2800.2), and
assault with a deadly weapon (his car) on a peace officer (§ 245, subd.
(c)). Ponce
had also participated in the robbery of a different 7-Eleven store two days
before. As to that incident, the jury
found him guilty of robbery (§ 211) and petty theft with a prior (§ 666).
Gueyger and Ponce
contend their convictions for petty
theft with a prior (§ 666) must be reduced to misdemeanor
theft because a section 666 conviction now requires three
prior theft-related convictions, which neither defendant has suffered. Further, they contend they did not personally
waive jury on the priors. The People
concede that under a new amendment to section 666, which is retroactive, the
section 666 convictions cannot stand and must be reduced to misdemeanor
theft.
Gueyger further
contends, and the People concede, that he cannot be convicted of robbery
for simply driving away after the robbery, and that the abstracts of judgment
must be corrected to show that credits were awarded pursuant to section 2933.1
rather than section 4019. As we will
explain, we agree with the parties on these points.
Gueyger also
argues that section 654 bars a separate sentence on reckless evading because it
was part of a continuous course of conduct, with the same intent and objective,
as the assault. Although the People do
not agree with Gueyger on this point, we do.
Finally, we construe the notation on the abstract of judgment that
Gueyger’s driver’s license was suspended for life to be acknowledgement that
his license will be revoked by the Department of Motor Vehicles pursuant to
Vehicle Code section 13351.5 because he used a motor vehicle as a deadly weapon
in the felony assault and we remand for the trial court to add this explicit
finding to the abstract of judgment.
FACTS
May 7, 2010
On May 7, 2010, Ponce
and another, much shorter,
name="_ftnref3" title="">[3]
man entered a 7-Eleven store at El Camino and Northgate shortly before 4:00 a.m.
They wanted to buy beer, but the clerk refused to sell it to them
because it was after 2:00 a.m. The shorter man held his fist under his shirt
at his waist and said he “got something.â€
The clerk feared he had a weapon.
The two men grabbed three cases of beer and ran off. Ponce
returned and grabbed cigarettes.
May 9, 2010
On May 9, 2010, at about 3:40 a.m., Ponce
and Bravo entered a 7-Eleven store in Rio Linda. Gueyger was in a Jeep Cherokee waiting
outside. Ponce
asked for cigarettes. The clerk claimed Ponce
pulled out a knife. Ponce
and Bravo ran out with cigarettes, soda, and snacks (counts 1, 2, 3 and 5).
Sacramento County
Sheriff’s Department Deputies Greg Steindorf and Dennis Peyton responded to an
aborted 911 call from the store. When
they reached the store, the clerk had run into the street and was pointing down
the street. The deputies saw the tail
lights of a vehicle moving away and accelerated to catch up. They followed a Jeep Cherokee with no rear
license plate. When the Jeep turned left
against a light, the deputies activated their lights and siren.
The Jeep moved
towards the right shoulder as if to pull over, but it continued into a
residential neighborhood. The Jeep was
traveling 50 miles per hour where the speed limit was only 25; it swerved and
failed to stay within its lane (count 6).
It then went out of control, hit a parked car and continued into a
fence, bounced onto the curb, and stopped.
The passenger doors opened and the suspects fled. Steindorf followed the fleeing suspects and
caught Ponce (count 7).
While Peyton was
still in the driver’s seat of the patrol car, Gueyger backed up the Jeep and
rammed the patrol car; Peyton felt the impact.
Peyton heard the Jeep still accelerating; Gueyger was still trying to
maneuver the Jeep from where it was “boxed in.â€
Peyton got out of the patrol car and approached the front passenger side
of the Jeep. He struck the window with
his flashlight three times before it broke.
Peyton leaned into the Jeep just past his shoulder and pointed his gun
at Gueyger, telling him to stop the car or Peyton would kill him. Instead, Peyton felt the Jeep begin to
accelerate and knew he had to get out or he would be dragged, possibly under
the car. He got out of the way
immediately and radioed for assistance (count 8). Another deputy found Gueyger three or four
blocks away, covered in weeds.
DISCUSSION
I
Reduction of Felony Petty Theft with a Prior (§ 666)
to Misdemeanor Theft (§ 484)
Both Gueyger and
Ponce contend their convictions for petty theft with a prior must be reduced to
misdemeanor theft because section 666 now requires three prior theft-related
convictions and Gueyger has only two and Ponce one. The People concede that the change in the law
is retroactive and defendants are legally entitled to the benefit of the
change.
Law
At the time
Gueyger and Ponce committed the present offenses, section 666 provided:
“Every person who,
having been convicted of petty theft, grand theft, auto theft under Section
10851 of the Vehicle Code, burglary, carjacking, robbery, or a felony violation
of Section 496 and having served a term therefor in any penal institution or
having been imprisoned therein as a condition of probation for that offense, is
subsequently convicted of petty theft, then the person convicted of that
subsequent offense is punishable by imprisonment in the county jail not
exceeding one year, or in the state prison.â€
Effective
September 9, 2010,
title="">[4]
Assembly Bill No. 1844 (2009–2010 Reg. Sess.), the Chelsea King Child Predator
Prevention Act of 2010 (the Act), amended section 666 to provide, in pertinent
part:
“(a)
Notwithstanding Section 490 [specifying the punishment for petty theft], every
person who, having been convicted three or more times of petty theft, grand
theft, auto theft under Section 10851 of the Vehicle Code, burglary,
carjacking, robbery, or a felony violation of Section 496 and having served a
term therefor in any penal institution or having been imprisoned therein as a
condition of probation for that offense, is subsequently convicted of petty
theft, then the person convicted of that subsequent offense is punishable by
imprisonment in the county jail not exceeding one year, or in the state
prison.â€
In
1190 (Vinson), the court considered
whether the amendment to section 666 was retroactive. The court followed In re Estrada (1965) 63 Cal.2d 740, 748, which held, “where the
amendatory statute mitigates punishment and there is no saving clause, the rule
is that the amendment will operate retroactively so that the lighter punishment
is imposed.†The Vinson court reasoned that the amendment to section 666 “had the
effect of mitigating punishment by raising the level of recidivism required
before a defendant can be sentenced to state prison.†(Vinson,
supra, 193 Cal.App.4th at p.
1199.) Applying the amendment
retroactively was also consistent with the legislative intent in passing the
Act “to save money and space in order to partially offset the higher costs and
inmate population occasioned by increasing sentences for sexual
predators.†(Vinson, supra, at p.
1199.) The court explained: “In light of the concerns expressed in the
legislative history about prison overcrowding and the costs associated with the
act, and the fact the cost avoidance achieved by shifting some nonviolent,
non-sex-offender recidivists to the county correctional level will not
completely offset the new costs [citation], it would make no sense to conclude
the section 666 amendment should apply only concurrently with the remaining
provisions of the act, i.e., prospectively.â€
(Ibid.)
We find
effect of the amendment to section 666.
Therefore, we agree with the parties that Gueyger and Ponce are entitled
to the mitigating effects of the amendment to section 666. The information alleged Gueyger had suffered
two theft-related priors, petty theft and vehicle theft, and served a term for
each, while Ponce had suffered only one theft-related prior, grand theft, and
had served a term for it.
name="_ftnref6" title="">[6] The court found these allegations true.
Since neither
defendant had suffered three theft-related priors as now required by section
666, their convictions for that offense cannot stand. We shall modify the judgment to reduce count
2 for Gueyger and counts 3 and 11 for Ponce to misdemeanor theft (§ 484). (See People
v. Cortez (1994) 24 Cal.App.4th 510 [reducing conviction for section 666 to
section 484 where no evidence defendant served a term in a penal institution as
required by section 666].)
Since we are
reducing defendants’ section 666 convictions to misdemeanor theft, we need not
address their contention that such a reduction is required because the trial
court failed to take personal waivers of the right to a jury on the allegations
of the theft-related priors.
name="_ftnref7" title="">[7]
II
Accessory After the Fact
Gueyger contends
he cannot be convicted of both robbery and being an accessory after the fact
because the latter charge is based on the facts constituting part of the
robbery, driving away from the location of the robbery. He contends count 6 must be reversed. The People concede error and we agree.
Law
California law is
divided over whether a person can be convicted as both a principal and an
accessory to the same felony. (
1351, 1358 (Eduardo M.).) Here, as in Eduardo M., we need not resolve the conflict in order to arrive at
our holding.
In
abetted assaults was convicted both as a principal and as an accessory based on
his flight after the crime. The
appellate court found it unnecessary to resolve the conflict over whether
conviction as both a principal and an accessory was proper, holding “only that
a defendant who is convicted as a principal cannot also be convicted as an
accessory solely on the basis of his immediate flight from the crime scene and
his subsequent denials of his own involvement, even if that conduct
incidentally helps other principals to escape.â€
(Eduardo M., supra, 140 Cal.App.4th
at p. 1359.) The court reasoned, “Nearly
all felons, whether acting alone or in concert with others, intend before,
during, and after committing the felony to escape being apprehended and
punished for their crimes. Attempting to
escape after committing a felony is an inherent part of committing the felony,
involving in most cases acting on a previously formed intent. Thus, escaping does not create greater
criminal culpability. Indeed, although
Penal Code section 32 does not expressly so state, California long has
recognized that a principal to a felony cannot become an accessory to that
felony by attempting to make his own escape.
[Citations.]†(
“If a felon cannot
be subjected to additional liability as an accessory for fleeing and denying
his guilt, then the same rule should apply to a principal whose flight and
denials have the incidental effect of helping a coprincipal to escape. Unlike when third persons who are not principals
to a felony intentionally aid the felon’s escape after the crime is completed,
a principal who flees and thereby incidentally assists another principal in
escaping does not thereby expand the circle of criminality beyond the original
participants. Moreover, because
immediate flight and denials of involvement are such ubiquitous features of
criminal conduct, they are too equivocal to constitute separate
fleeing and guilt-denying felon harbored a separate intent to aid the escape of his coprincipals. For a principal to be convicted as an
accessory, which requires both separate acts and intent, the principal must do
something more than flee and deny his own guilt.†(Eduardo
M., supra, 140 Cal.App.4th at p. 1361.)
Here, Gueyger fled
in the Jeep with Ponce and the others immediately after the robbery at the
7-Eleven store. There is no evidence of
any other act that would support an accessory charge. Under Eduardo
M., with which we agree, Gueyger’s accessory conviction must be reversed.
III
Gueyger contends his sentence on reckless evasion of the police,
count 7, must be stayed under section 654 because both the evading and the
assault on a peace officer arose from the same continuous course of conduct and
had the same criminal intent and objective--to get away. We agree.
Law
Section 654
provides in relevant part: “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.â€
“The ‘act’
necessary to invoke section 654 need not be an act in the ordinary sense of a
separate, identifiable, physical incident, but may instead be a ‘course of
conduct’ or series of acts violating more than one statute and comprising an
indivisible transaction punishable under more than one statute. [¶]
The divisibility of a course of conduct depends upon the intent and
objective of the defendant. If all the
offenses are incidental to one objective, the defendant may be punished for any
one of them, but not for more than one.
On the other hand, if the evidence discloses that a defendant
entertained multiple criminal objectives which were independent of and not
merely incidental to each other, the trial court may impose punishment 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. [Citations.] The principal inquiry in each case is whether
the defendant’s criminal intent and objective were single or multiple. Each case must be determined on its own
facts. [Citations.]†(
1119, 1135–1136.)
There is an
exception to section 654 where there are multiple victims of violent
crimes. “[S]ection 654 does not apply to
crimes of violence against multiple victims.â€
(People v. King (1993) 5
Cal.4th 59, 78.) As the purpose of
section 654 “is to insure that the defendant’s punishment will be commensurate
with his criminal liability,†when he “commits an act of violence with the
intent to harm more than one person or by means likely to cause harm to several
persons,†his greater culpability precludes application of section 654. (Neal
v. State of California (1960) 55 Cal.2d 11, 20—21, disapproved on another
point in People v. Correa (2012) 54
Cal.4th 331.) “A defendant may
properly be convicted of multiple counts for multiple victims of a single
criminal act only where the act prohibited by the statute is centrally an ‘act
of violence against the person.’
[Citation.]†(
Cal.3d 345, 351.)
“‘“A trial court’s
implied 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.]’ [Citation.]â€
(People v. Sanchez (2009) 179
Cal.App.4th 1297, 1310.)
B. Analysis
Here, the trial court did not make express findings with respect
to the application of section 654. (See
Cal. Rules of Court, rule 4.424.) The
issue of section 654 did not arise at sentencing with respect to the evading and
assault charges. We consider
whether there is substantial evidence to support an implied finding of a
separate intent and objective.
The evidence
supports Gueyger’s position that he harbored the same intent and objective
during both the evading and the assault.
Deputy Peyton testified that after the Jeep temporarily stopped on the
curb, immediately before it rammed the patrol car and then took off with Peyton
still partially inside,
name="_ftnref8" title="">[8]
he heard the Jeep accelerating. Peyton
testified Gueyger was consistently trying to maneuver the vehicle to get
away. There was no evidence that Gueyger
stopped trying to get away in order to
harm Peyton; the only evidence was that Gueyger was trying to get away the
entire time.
The People do not
offer a separate intent and objective for the assault. Rather, they argue the multiple victim
exception for acts of violence applies.
The People argue Gueyger committed acts of violence against multiple
people--Peyton and the “other people†whose safety Gueyger disregarded while
fleeing.
Certainly section
245, subdivision (c), which requires assault with a deadly weapon other than a
firearm or by means likely to produce great bodily injury, qualifies as an act
of violence. Felony or reckless evading,
however, has been held not to be an
act of violence for purposes of the multiple victim exception of section
654. (People v. Garcia (2003) 107 Cal.App.4th 1159, 1163.) Indeed, because subdivision (b) of Vehicle
Code section 2800.2 defines the term “willful and wanton disregard for the
safety of persons or property†very broadly to include any flight from an
officer in which three of certain traffic violations are committed (some of
which can be committed without endangering human life), Vehicle Code section
2800.2 is not an inherently dangerous felony for purposes of second degree
felony murder. (People v. Howard (2005) 34 Cal.4th 1129, 1137-1139.)
The trial court
erred in failing to stay Gueyger’s sentence on count 7, reckless evading,
pursuant to section 654.
IV
Lifetime Suspension of Driving Privileges
The probation
report recommended that Gueyger’s driving privileges be revoked for life
pursuant to Vehicle Code section 13351.5.
At sentencing, the trial court did not mention driving privileges, but
indicated it would impose the terms recommended by the Probation Department
with certain modifications. The abstract
of judgment indicates Gueyger’s driving license is suspended for life pursuant
to Vehicle Code section 13351.5.
Gueyger contends
it was improper for the trial court to suspend his driving privileges. He contends such an order was not part of the
oral pronouncement of sentence and it is an unauthorized sentence because only
the Department of Motor Vehicles (DMV) can suspend driving privileges. Because the order is unauthorized, Gueyger argues,
he has not forfeited the claim by failing to object at sentencing.
Law
Vehicle Code
section 13351.5 provides in part: “(a)
Upon receipt of a duly certified abstract of the record of any court showing
that a person has been convicted of a felony for a violation of Section 245 of
the Penal Code and that a vehicle was found by the court to constitute the
deadly weapon or instrument used to commit that offense, the department
immediately shall revoke the privilege of that person to drive a motor vehicle. [¶]
(b) The department shall not reinstate a privilege revoked under
subdivision (a) under any circumstances.â€
A Vehicle Code
section 13351.5 revocation is a mandatory administrative function. (In re
Grayden N. (1997) 55 Cal.App.4th 598, 604 (Grayden N.).) “Simply put,
the ... court is bound, under the statute, to report to the [DMV] the true
finding [defendant] committed an assault with a deadly weapon in violation of
Penal Code section 245, subdivision (a), and the true finding the weapon ...
used was a vehicle.†(
604.) Driving is a privilege, not a
right, and license revocation is a civil, not a criminal, sanction. (People
v. Linares (2003) 105 Cal.App.4th 1196, 1199.) The DMV, not the court, has the power to
revoke a driver’s license pursuant to Vehicle Code section 13351.5. (Grayden
N., supra, at p. 604.)
The trial court
incorporated the terms recommended by the probation report, except those it
modified, in its oral pronouncement of sentence. Thus, the reference to Vehicle Code section
13351.5 was part of the sentence. We
construe the trial court’s order as an acknowledgement that Gueyger’s driver’s
license would be revoked by the DMV upon receipt of the certified abstract. The trial court, however, failed to include in
the abstract the precise information the DMV needs to revoke Gueyger’s license,
namely, that Gueyger used a vehicle to commit the section 245 felony. Since this case must otherwise be remanded
for correction of the abstract, upon remand the court should make the
determination called for by Vehicle Code section 13351.5.
VI
Correction of Abstract
Both Gueyger and
Ponce properly received only 15 percent conduct credits pursuant to section
2933.2 due to their robbery convictions.
Both abstracts, however, indicate local conduct credits were awarded
pursuant to section 4019. Gueyger
contends, and the People concede, the abstracts should be corrected. We agree and shall order correction.
Gueyger’s conviction on count 6, accessory after the fact, is
reversed. Gueyger’s conviction on count
2 and Ponce’s convictions on counts 3 and 11, petty theft with a prior, are
reduced to convictions for section 484, misdemeanor theft. Gueyger’s sentence on count 7, reckless
evading, is stayed pursuant to section 654.
We further remand the matter for correction of the abstracts of judgment
to show that local conduct credits for both defendants are awarded pursuant to
section 2933.1, and for the trial court to make the express finding that
Gueyger used a vehicle as a deadly weapon in the felony assault, count 8. As so modified, the judgment is
affirmed. The trial court is directed to
prepare an amended abstract of judgment for both Gueyger and Ponce to reflect
these modifications and to forward certified copies of the amended abstracts to
the Department of Corrections and
Rehabilitation and the Department of Motor Vehicles.
DUARTE , J.
We concur:
NICHOLSON , Acting P. J.
HULL , J.
name="_ftn1" title="">[1] Bravo is not a party to this appeal. He was tried before a separate jury and found
guilty of commercial burglary and theft, but, like Ponce, acquitted of robbery.
to the Penal Code.
