P. v. Matchem
Filed 9/12/13 P. v. Matchem CA2/3
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opinion has not been certified for publication or ordered published for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
SECOND
APPELLATE DISTRICT
DIVISION
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
PIERRE LAMONT MATCHEM,
Defendant and Appellant.
B239248
(Los Angeles
County
Super. Ct.
No. YA073041)
APPEAL
from a judgment of the Superior Court
of
County, Scott T. Millington, Judge. Affirmed as modified.
Randall
Conner, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr., and Seth
P. McCutcheon, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
Defendant and appellant, Pierre Lamont
Matchem, appeals his conviction for petty theft (2 counts), resisting a
peace officer (2 counts) and possession of a firearm by a felon, with
prior serious felony conviction and prior prison term enhancements
(Pen. Code, §§ 484, 148, subd. (a)(1), 12021 (former), 667,
subd. (a) – (i), 667.5).
name="_ftnref1" title="">[1] He was sentenced to
six months.
The judgment is affirmed as
modified.
BACKGROUND
Viewed in accordance with the usual
rule of appellate review (People v. Ochoa
(1993) 6 Cal.4th 1199, 1206), the evidence established the following.
1.
Prosecution evidence.
On September 20, 2008, Chappell Bell was working as a
loss prevention manager at the Burlington Coat Factory in Inglewood. While monitoring the store’s surveillance
cameras, Bell saw defendant Matchem
and two other people going in and out of the fitting room. Matchem then took some clothes from one of
his companions and began walking toward the exit. As Matchem left the store, the alarm went
off. Loss prevention managers Tim Baker
and Sam Pinon escorted Matchem back into the store, and Bell
joined them.
Matchem
suddenly shoved Pinon and turned toward Bell. Pinon grabbed Matchem, who began to reach
into his front pocket. They fell to the
floor struggling. Baker spotted a gun
which he removed from Matchem’s pocket.
When Inglewood Police Officers John Knapp and George Sanford responded
to the store, they found Matchem still on the floor struggling with Pinon. Knapp and Sanford exchanged places with
Pinon, got on top of Matchem and held him down, trying to handcuff him. Matchem struggled, fought with the officers
and tried to get away. Knapp told
Matchem numerous times to put his arms behind his back because he was under
arrest, but Matchem would not comply.
Because the officers could not subdue Matchem they radioed for
help. After another officer arrived
and used a taser on Matchem he was taken into custody.
2.
Defense evidence.
Mark Jaffe, a psychiatrist, testified he was treating Matchem for
schizoaffective disorder and had provided him with prescription antipsychotic
and antidepressant medications.
Matchem testified he had been
hearing voices since he was 17, but at the time of this shoplifting incident he
had gone off his medication. He recalled
being at the Burlington Coat Factory store with two companions. He was unaware he had any items in his hands
when he left the store and he told the security guard it was an accident. The guard gave him permission to return
the items, but then Pinon threatened him.
Matchem threw the items back on the shelf and tried to leave, but some
people attacked him. He did not realize
he had a gun in his possession and he never heard the police tell him to stop
resisting.
3.
Sentencing.
Along with felon in possession of a
gun, Matchem had been charged with two counts of robbery and two counts of
resisting an executive officer (§ 69).
The jury convicted him on the felon in possession count, but on the
other counts, it found him guilty of the lesser included offenses of resisting
a peace officer (§ 148, subd. (a)(1)) and petty theft. For the section 148 convictions, the
trial court imposed a one-year consecutive prison term on count 3
(resisting Officer Knapp), and a concurrent one-year county jail term on
count 4 (resisting Officer Sanford).
CONTENTION
The trial court erred by failing to
stay execution of the sentence on the count 4 conviction for resisting a
peace officer.
DISCUSSION
Matchem contends that under section 654,
the prohibition against multiple punishment, the trial court should have stayed
execution of the sentence imposed on count 4. This claim has merit.
1. Legal
principles.
As we recently explained: “Section 654 provides, in 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.’ [¶]
Section 654 prohibits punishment for two crimes arising from a single,
indivisible course of conduct.
[Citation.] Thus, if all of the
crimes were merely incidental to or were the means of accomplishing or
facilitating a single objective, the defendant may receive only one
punishment. [Citation.] ‘The defendant’s intent and objective are
factual questions for the trial court; [to permit multiple punishments,] there
must be evidence to support a finding the defendant formed a separate intent
and objective for each offense for which he was sentenced. [Citation.]’
[Citation.]†(
116, 129.)
However, “ ‘the limitations of section 654 do not apply to
crimes of violence against multiple victims.’ †(People
v. Oates (2004) 32 Cal.4th 1048, 1063.)
“[T]he multiple victim exception, simply stated, permits one
unstayed sentence per victim of all the violent crimes the defendant commits
incidental to a single criminal intent.â€
(People v.
1784.)
2.
Discussion.
The Attorney General acknowledges
Matchem was engaged in a single, indivisible course of conduct when he tried to
prevent Knapp and Sanford from arresting him, but argues the concurrent
sentence on count 4 was proper under the multiple victim exception to
section 654. We conclude, however,
that the exception did not apply in this case.
“ [W]hether a crime constitutes
an act of violence that qualifies for the multiple-victim exception to
section 654 depends upon whether the
crime . . . is defined to
proscribe an act of violence against the person.†(People
v. Hall (2000) 83 Cal.App.4th 1084, 1092, italics added, disapproved on
other grounds in People v. Correa
(2012) 54 Cal.4th 331, 343-344.)
But section 148 is not defined as a crime of violence.
“ ‘ “The legal
elements of a violation of section [148(a)(1)] are as follows: (1) the defendant willfully
resisted, delayed, or obstructed a
peace officer, (2) when the officer was engaged in the performance of his
or her duties, and (3) the defendant knew or reasonably should have known
that the other person was a peace officer engaged in the performance of his or
her duties. [Citations.]†[Citation.]
The offense is a general intent crime, proscribing only the particular
act (resist, delay, obstruct) without reference to an intent to do a further
act or achieve a future consequence.
[Citation.]’ [Citation.] [¶]
‘Section 148 is most often applied to the physical acts of a
defendant. [Citation.] For example, physical resistance,
hiding, or running away from a police officer have been found to violate
section 148. [Citations.] But section 148 “is not limited to nonverbal
conduct involving flight or forcible interference with an officer’s
activities. No decision has interpreted
the statute to apply only to physical acts, and the statutory language
does not suggest such a limitation.â€
[Citation.]’ †(
137 Cal.App.4th 418, 431.)
Christopher
concluded that because the defendant tried “to mislead the police by
falsely identifying himself . . . he thereby willfully obstructed a
peace officer in the discharge of, or attempt to discharge, his duties within
the meaning of section 148(a)(1).â€
(People v. Christopher, supra, 137
Cal.App.4th at p. 432.) This view of
section 148 as a non-violent crime was recently noted by
which, while comparing misdemeanor resisting (§ 148) with felony resisting
(§ 69), characterized section 148 as “the lesser offense of resisting
the officers without the use of force or violence . . . .†(People
v. Smith, supra, at p. 245.) The
Attorney General has cited no case holding section 148 to be a crime of
violence for purposes of section 654’s multiple victim exception.
“ ‘When section 954 [defendant may be convicted of all
offenses charged] permits multiple conviction, but
section 654 prohibits multiple punishment, the trial court must
multiple punishment is prohibited.
[Citations.]’ †(
110, 116.) We will order the
judgment modified by staying execution of the sentence imposed on count 4.
DISPOSITION
The judgment is affirmed as
modified. The concurrent one-year county
jail term imposed on count 4 is vacated; the sentence on that count shall
be stayed. The trial court is directed
to prepare and forward to the Department
of Corrections and Rehabilitation an amended abstract of judgment.
KLEIN,
P. J.
We concur:
KITCHING,
J.
ALDRICH,
J.
name="_ftn1" title="">[1]
All further references are to
the Penal Code unless otherwise specified.
name="_ftn2" title="">[2]
Although People v. Correa, supra, 54 Cal.4th 331, recently concluded “section 654
does not bar multiple punishment for multiple violations of the same criminal
statute,†this new rule was not applied retroactively. (Id.
at p. 334.)
