P. v. Knight
Filed 10/10/13 P. v. Knight CA3
Opinion following rehearing
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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE DISTRICT
(Sacramento
----
THE PEOPLE,
Plaintiff and Respondent,
v.
VONTRE KNIGHT,
Defendant and Appellant.
C068030
(Super. Ct. No. 10F04539)
OPINION ON REHEARING
A jury
found defendant Vontre Knight guilty of evading a peace officer while driving
with willful and wanton disregard for the safety of others and property (Veh.
Code, § 2800.2, subd. (a)—count one) and evading a peace officer while
driving on a highway in a direction opposite to that in which traffic lawfully
moves (former Veh. Code, § 2800.4—count two). Following the trial court’s finding that
defendant was previously convicted of four strike offenses, defendant was
sentenced to an indeterminate term of 25 years to life.
On
appeal, defendant contends the trial court erred in refusing to give a unanimity
instruction. He also contends the court
erred in imposing booking and classification fees without first determining his
ability to pay those fees. Neither
contention has merit.
Defendant
further contends the judgment must be modified to reflect an additional day of
concession, and order the judgment amended.
On November 6, 2012, California
voters approved Proposition 36, which modifies the three strikes law. After we filed our decision in this case,
defendant filed a petition for rehearing seeking the benefit of the change in
the law. Defendant asked us to vacate
his sentence under the three strikes law and remand the matter to the trial
court with directions to impose a determinate sentence pursuant to the amended
three strikes law. We granted
defendant’s petition for rehearing and ordered
FACTUAL AND PROCEDURAL BACKGROUND
On July 12, 2010, Sacramento Police
Officer Matthew McPhail, on duty, in full uniform and driving a marked car,
heard a horn honking repeatedly. McPhail
then saw two vehicles turn from westbound Second
Avenue on northbound Franklin
Boulevard.
The lead vehicle was a Chevrolet SUV (driven by defendant); the second
was a Cadillac sedan. Both vehicles were
speeding. It appeared to McPhail that
the Cadillac was chasing the SUV and honking its horn; McPhail followed the
vehicles. Both vehicles soon made a
right turn against a red light, then immediately turned right onto southbound
Highway 99.
Officer
McPhail continued to follow both vehicles and watched them move from the number
four lane to the number two lane, then quickly move back to the right side of
the roadway. In an effort to stop both
vehicles, McPhail activated his overhead lights. The Cadillac slowed slightly and moved one
lane to the left. Defendant increased
his speed.
Officer
McPhail increased his speed and pulled his patrol car behind defendant’s
SUV. He was receiving information
regarding the vehicles from “dispatch†when he saw defendant swerve out of the
dedicated exit lane at Fruitridge and back into the southbound freeway
lane. McPhail then turned on his
siren. Defendant remained in the
right-most lane and sped up to approximately 70 miles per hour.
As
defendant approached the Martin Luther King Jr.
Boulevard overpass, he “aggressively†slowed the
SUV and made an “abrupt†right turn, leaving skid marks on the highway. Defendant then crossed over the on-ramp
freeway entrance onto southbound Highway 99.
Defendant left the roadway through a narrow opening between a large tree
and a freeway guard rail. Defendant then
drove the SUV through the landscaped area inside the circular freeway
on-ramp.
Officer
McPhail did not follow defendant through the landscaped area, so there were
moments when McPhail could not see the SUV.
McPhail did, however, see the SUV leave the landscaped area and enter
the one-way freeway on-ramp traveling opposite the direction of traffic. Defendant drove the SUV against traffic for
approximately one-third the length of the on-ramp. A Land Rover had to swerve to avoid colliding
with the SUV.
Defendant
then sped over the Martin Luther King Jr. Boulevard
overpass. And, while Officer McPhail
drove nearly 65 miles per hour in pursuit of defendant, defendant continued to
increase the distance between himself and McPhail. Defendant then turned the SUV onto 35th
Avenue and McPhail again lost sight of him for a few seconds. When he saw the SUV again, it was stopped in
front of a residence approximately three houses north of the intersection at
Mascot and 35th Avenues. The SUV’s
lights were on, the driver’s door was open, and defendant was running north,
away from the SUV.
Officer
McPhail drove his patrol car in the direction defendant ran. He saw defendant crouching against a fence in
a residential yard. McPhail ordered
defendant to “give up.†Instead,
defendant jumped over an adjacent chain-link fence and entered the side yard of
the residence next door, at which point McPhail lost sight of defendant.
A
perimeter search was initiated. The
police officers were told that a resident heard noises coming from her
bathroom. The police searched her home
with the help of a canine officer. They
found defendant hiding inside the woman’s bathtub, behind the shower
curtain.
Defendant
was subsequently charged with evading a peace officer while driving in willful
and wanton disregard for the safety of other persons and property (Veh. Code,
§ 2800.2, subd. (a)), evading an officer while driving in a direction
opposite to that in which traffic lawfully moves (id., former § 2800.4), and resisting and delaying a peace
officer
(Pen. Code, § 148, subd. (a)(1)).
previously convicted of four strike offenses within the meaning of Penal Code
section 1170.12, subdivision (c)(1) and sustained three prior felony
convictions within the meaning of Penal Code section 667.5, subdivision
(b).
Jury Instructions
At the
jury instruction conference, defendant asked the trial court to give the jury a
unanimity instruction. Defendant argued
that, in order to find him guilty of recklessly evading a peace officer, the
jury was required to agree on which specific Vehicle Code violations were
committed by defendant. The trial court
denied defendant’s request.
The jury
was instructed, in relevant part, as follows:
“The
defendant is charged in Count One with evading a peace officer with wanton
disregard for safety in violation of Vehicle Code section 2800.2, [subdivision]
(a).
“To prove
the defendant is guilty of this crime, the People must prove that: . . . [¶] . . . [¶]
“Three,
during the pursuit the defendant drove with willful or wanton disregard for the
safety of persons or property;
[¶] . . . [¶]
“A person
acts with wanton disregard for safety when,
one, he is aware that his actions present a substantial and unjustifiable risk
of harm; [two,] he intentionally ignores that risk. The person does not, however, have to intend
to cause damage.
“Driving
with willful or wanton disregard for safety of persons or property includes,
but is not limited to, causing damage to property while driving or committing
three or more violations that are each assigned a traffic violation point.
“For the
purpose of evaluating whether, quote, three or more violations have been
committed, you may consider the following six Vehicle Code
sections: . . .â€
The jury
was then instructed on six different Vehicle Code violations: (1) driving in excess of the maximum speed
(Veh. Code, § 22349, subd. (a)); (2) failing to signal a turn (
a freeway (id., § 21664); (4)
driving the wrong way (id.,
§ 21651, subd. (b)); (5) driving at a speed greater than is reasonable or
prudent (id., § 22350); and (6)
driving on the wrong side of the road (id.,
§ 21650).
The jury
also was instructed that, in order to find defendant guilty of the charges,
their “verdict[] must be unanimous.†In
other words, “to [r]each a verdict, all of [the jurors] must agree to it.†The jury returned guilty verdicts on both
counts, and the court found true the enhancement
allegations.
Defendant’s
motion to dismiss the prior strike convictions was denied and he was sentenced
to an indeterminate term of 25 years to life on the charge of evading an
officer with wanton disregard for the safety of people and property. Defendant was sentenced to an additional 25
years to life on the remaining conviction, though his sentence was stayed
pursuant to section 654.
Defendant
was ordered to pay various fines and fees, including a $287.78 main jail
booking fee and a $59.23 main jail classification fee. (Gov. Code, § 29550.2, subd. (a).) Defendant was awarded a total of 404 days of
presentence custody credit. Defendant appeals.
DISCUSSION
I. Unanimity
Instruction
Defendant
claims the trial court erred in refusing to give a unanimity instruction. We disagree.
“The key
to deciding whether to give the unanimity instruction lies in considering its
purpose. The jury must agree on a ‘particular
crime’ [citation]; it would be unacceptable if some jurors believed the
defendant guilty of one crime and other jurors believed [him] guilty of
another. But unanimity as to exactly how
the crime was committed is not required.
Thus, the unanimity instruction is appropriate ‘when conviction on a
single count could be based on two or more discrete criminal events,’ but not
‘where multiple theories or acts may form the basis of a guilty verdict on one
discrete criminal event.’
[Citation.] In deciding whether
to give the instruction, the trial court must ask whether (1) there is a risk
the jury may divide on two discrete crimes and not agree on any particular
crime, or (2) the evidence merely presents the possibility the jury may divide,
or be uncertain, as to the exact way the defendant is guilty of a single
discrete crime. In the first situation,
but not the second, it should give the unanimity instruction.†(People
v. Russo (2001) 25 Cal.4th 1124, 1134-1135 (Russo).)
Here, as
in People v. Datt (2010)
185 Cal.App.4th 942 (Datt), the
“ ‘discrete criminal event’ †was defendant’s flight in the SUV from
Officer McPhail, which lasted approximately three minutes. (Id.
at p. 950.) That single criminal
event resulted in defendant being charged with two separate crimes: (1) recklessly evading a peace officer and
(2) driving opposite the direction of traffic while evading a peace
officer. Defendant argues that because
his flight from McPhail resulted in two criminal charges, the flight was
“divided into discrete criminal events.â€
Defendant cites no authority for this proposition and we are not
persuaded.
It is
well settled that a defendant may be charged with multiple crimes for the same
criminal conduct (or event).
(§ 654; Neal v. State of California
(1960) 55 Cal.2d 11, 19, disapproved on a different ground in
331, 334, 338, 341.) The issue regarding
unanimity is whether in convicting defendant on both counts, the jury was able
to agree on a “particular crime†for each count. (Russo,
Here,
there was a single, three-minute flight from Officer McPhail but several
theories of criminal liability (i.e., multiple Vehicle Code violations and a
general sense of recklessness) proffered to support a conviction. (Russo,
was not required to agree on the precise way in which defendant drove
recklessly in an effort to evade McPhail, only that he did, in fact, drive
recklessly in an effort to evade the officer.
(Datt, supra, 185 Cal.App.4th
at p. 950.)
Similarly,
in finding defendant guilty on count two, the jury was required to find,
unanimously, that defendant drove opposite the direction of traffic, while
evading a peace officer. No further
unanimity instruction was required.
Finally,
the jury was not, as defendant suggests, precluded from relying on the same
evidence to prove both counts. The same
conduct can give rise to multiple crimes, although defendant cannot be punished
for all of them. (§ 654.) Thus, the jury was well within the limits of
the law to consider defendant’s driving opposite the direction of traffic to
convict him on both counts.
II.
Classification and Booking Fees
The fees
imposed by the trial court at sentencing included, among others, a main jail
booking fee of $287.78 and a main jail classification fee of $59.23. (Gov. Code, § 29550.2, subd. (a).) Defendant raised no objection to the
fees.
Defendant
contends these fees must be stricken because the trial court failed to find, as
required by the statutes under which the fees were imposed, that he has the
ability to pay them. The People assert
defendant has forfeited the issue because he did not object to the fees in the
trial court. We agree. We have repeatedly held that failure to
object in the trial court based on lack of ability to pay forfeits the
contention of error. (See People v. Crittle (2007) 154 Cal.App.4th
368, 371; People v. Hodges (1999) 70 Cal.App.4th 1348, 1357; People
v. Gibson (1994) 27 Cal.App.4th 1466, 1468-1469; see also People v.
McMahan (1992) 3 Cal.App.4th 740, 749-750 [defendant knowledgeable
about his ability to pay, and his failure to object to fine recommended by
probation officer or offer contrary evidence forfeited claim].) Recently, our Supreme Court agreed with this
view. (People v.
591 [a defendant who fails to contest the booking fee when the trial court
imposes it forfeits the right to challenge the sufficiency of the evidence to
support the fee], disapproving of People
v. Pacheco (2010) 187 Cal.App.4th 1392.)
III. Custody
Credit
Defendant
contends he is entitled to an additional day of custody credit; the People
concede the issue. Having reviewed the
law and the record, we accept the People’s concession and order the judgment
modified.
IV. Proposition
36 Amendments to the Three Strikes Law
Defendant
was sentenced to an indeterminate term of 25 years to life for crimes that were
not serious or violent felonies (two counts of eluding a police officer). (Veh. Code, §§ 2800.2, subd. (a),
2800.4; see Pen. Code, §§ 667.5, subd. (c), 1192.7, subd. (c).) While defendant’s appeal was pending, the
voters passed Proposition 36, limiting three strike sentences to current
convictions for serious or violent felonies, or a limited number of other
felonies that are not relevant here.
(See Pen. Code, §§ 1170.12, subd. (c), 667, subd. (c).) If defendant had been sentenced today, he
would not be subject to an indeterminate life term.
Proposition
36 also added section 1170.126, which creates a postconviction release
proceeding “intended to apply exclusively to persons presently serving an
indeterminate term of imprisonment pursuant to paragraph (2) of subdivision (e)
of Section 667 or paragraph (2) of subdivision (c) of Section 1170.12, whose
sentence under this act would not have been an indeterminate life
sentence.†(§ 1170.126, subd. (a).) A prisoner is eligible for resentencing under
section 1170.126 as a second strike offender if certain requirements are
met. (§ 1170.126, subd. (e).)
In asking
us to vacate his sentence and remand the matter, defendant relies on
740. Under Estrada, a statute lessening punishment is presumed to apply to all
cases not yet reduced to final judgment on the statute’s effective date unless
there is a savings clause or its equivalent providing for prospective
application. (Id. at pp. 744-745, 747-748; People v. Brown (2012) 54 Cal.4th 314, 322, 328 [
retroactive application of section 4019 amendments concerning presentence
conduct credits].) Defendant contends
that the holding in Estrada applies
to him and under the amended law he must be automatically
resentenced to a determinate term (rather than merely remanded for a
discretionary resentencing hearing pursuant to section 1170.126).
Recently,
the Court of Appeal, Fifth Appellate District, concluded in
213 Cal.App.4th 161 (Yearwood)
that the Proposition-36 added section 1170.126 is the equivalent of a “saving
clause†and defeats the presumption of retroactivity set forth in
(Yearwood, at pp. 172,
176.)
Section
1170.126, as noted, applies to “persons presently serving†a three strikes
sentence of 25 years to life; under it, such a person “may file [in the trial
court] a petition for a recall of sentence†to request resentencing under
Proposition 36; and, if the person is eligible under Proposition 36, the trial
court will resentence the person “unless the court, in its discretion,
determines that resentencing the [person] would pose an unreasonable risk of
danger to public safety.â€
(§ 1170.126, subds. (a), (b), (f); see id., subds. (e), (g).)
Consequently, those already sentenced and serving a 25-year-to-life
sentence under the three strikes law, like defendant here, must petition the
trial court under section 1170.126 for a recall of sentence regardless of
whether or not their judgment is final.
(Yearwood, supra, 213 Cal.App.4th
at p. 168.)
As the
People note, whereas the Proposition 36-amended sections 667 and 1170.12
require nondiscretionary resentencing, the Proposition 36-enacted section
1170.126 gives the trial court discretion not to resentence a person who “would
pose an unreasonable risk of danger to public safety.†(Compare §§ 667, subd. (e) and 1170.12,
subd. (c) with § 1170.126, subd. (f).)
For the reasons set forth in
Yearwood, defendant is not entitled to a remand from this court for
resentencing in the trial court under amended sections 667 and 1170.12;
defendant’s recourse is to petition the trial court for a recall of sentence
under section 1170.126. (
DISPOSITION
The
judgment is modified to show defendant is entitled to 271 days of custody
credit, not 270 days as currently ordered, for a total of 405 days of
presentence credit. The trial court is
directed to prepare an amended abstract of judgment accordingly; the judgment
is otherwise affirmed. The trial court
is further directed to forward a certified copy of the amended abstract of
judgment to the Department of Corrections and Rehabilitation.
BUTZ , J.
We concur:
NICHOLSON , Acting P. J.
MAURO , J.
name="_ftn1" title="">[1] Before trial, the court granted the
prosecution’s motion to dismiss the charge of resisting a peace officer.
name="_ftn2" title="">[2] Undesignated statutory references are to the
Penal Code.
