P. v. Roberson
Filed 12/5/13 P. v. Roberson CA1/2
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
TWO
>
THE PEOPLE, Plaintiff and Respondent, v. OGES ROBERSON, Defendant and Appellant. | A136135 (Marin County Super. Ct. No. SC175203) |
On
April 11, 2012, two
unidentified men were seen on video monitors committing a burglary at an
Autodesk building in San Rafael. Police officers responded and saw a sedan
with four men leaving the scene about 2:00 a.m. The car sped away and the police pursued, but
lost sight of the car. At 3:30 a.m., a police officer observed a car turn
the wrong way onto a one-way street and commenced a pursuit of the vehicle,
which entered Highway 101 in the southbound lanes. During the pursuit, the car made a U-turn on
the freeway, threatening a head-on collision with one of the pursuing police
vehicles. The car went off the roadway
into a muddy ditch. Oges Roberson, in
muddy pants and shoes, was arrested nearby.
Two other men, similarly muddy, were also apprehended. The car was a rental vehicle for which
Roberson was an authorized driver. It
contained items that had been taken from Autodesk, as well as some of
Roberson’s personal papers.
Roberson
was tried by a jury, which found him guilty of
property (§ 496, subd. (a)), and evasion of a peace officer with willful or
wanton disregard for the safety of other persons or property (Veh. Code, § 2800.2,
subd. (a)).
Roberson
contends that the People presented insufficient
evidence to sustain his conviction on any of these counts. He also argues that the court erred in
failing to instruct the jury on the lesser included offense of misdemeanor
evasion of a peace officer (without willful or wanton disregard for
safety). Finally, he contends, and the
People concede, that the court erred in the sentence that it imposed, by making
the sentences on two of the charges, which were to be served concurrently,
consecutive to the sentence on another charge, contrary to section 654.
We
conclude that substantial evidence supported
Roberson’s conviction on the commercial burglary and receiving stolen property
counts. However, we conclude that
substantial evidence did not support a finding of guilt on the charge of
evasion with willful or wanton disregard for safety, which was based on the
theory that it was the natural and probable consequence of aiding and abetting
the burglary or receiving stolen property.
Instead, we find that the evidence supports only a finding of guilt for the
lesser included offense of misdemeanor evasion and we amend the judgment to
reflect that conclusion and remand for resentencing.
Finally,
we agree with the parties that the trial court erred in sentencing
Roberson. On remand for resentencing,
the trial court can ensure that the error does not recur.
I. Procedural Background
The
People charged Roberson in a first amended information, filed on April 16,
2012, with the following offenses: (1)
felony assault with a deadly weapon (a motor vehicle) upon a peace officer (§ 245),
subd. (c)); (2) felony evading a peace officer with willful or wanton disregard
for safety (Veh. Code, § 2800.2, subd. (a)); (3) felony commercial burglary (§
459); (4) felony receiving stolen property (§ 496, sub. (a)); and (5)
misdemeanor hit and run driving (Veh. Code, § 20002, subd. (a)). Before trial, count five was dismissed on the
People’s motion in the interest of
justice.
The
information also alleged that Roberson had two prior felony strike convictions
19 years earlier for robbery (§ 211) and assault with a deadly weapon (§ 245,
subd. (a)(2)). In addition, the
information alleged that Roberson was ineligible for probation because: (1) he used a deadly weapon (a car) in count
one (§ 1203, subd. (e)(2)); and (2) he had six prior felony convictions (§
1203, subd. (e)(4)). Finally, the
information alleged that for three of his prior felony convictions, Roberson
had not remained free of prison custody for five years between prison terms,
rendering him eligible for sentencing enhancements under section 667.5,
subdivision (b).
A
trial by jury commenced on April 13, 2012.
On April 20, 2012, the jury found Roberson not guilty on count one and
guilty on counts two, three, and four.
Trial on the prior convictions was bifurcated and Roberson waived his
trial. On April 24, 2012, the trial
court found to be true: four of the six
charged prior felony convictions, pursuant to section 1203, subdivision (e)(4);
one prior strike, pursuant to section 1170.12; and Roberson’s three prior
prison terms, pursuant to section 667.5, subdivision (b).
On
June 13, 2012, the trial court sentenced Roberson to prison for a term of six
years four months. The term was
comprised of the mid-term of two years for count 2, doubled to four years as a
result of the prior strike; a four-year sentence for count 3, with 32 months
stayed, to be served consecutively; a four-year sentence for count 4, to be
served concurrently with the sentence for count 3; and a consecutive one-year
term, pursuant to section 667.5, subdivision (b).
Roberson
filed a timely notice of appeal on July 12, 2012.
II. Factual Background
On
April 11, 2011, about 1:45 a.m., Robbie Munoz was observing security video
monitors at Autodesk in San Rafael. He saw
two African-American men in black hoodies and pants going up and down a
stairway area carrying electronic equipment.
Munoz could not make out the facial features of either man.
Cabrera, a security employee of Autodesk, went to the area to investigate,
discovering a broken window that appeared to be the point of entry. Cabrera found electronic equipment that had
been moved and damaged inside the building; other items, including a laptop
computer and a hat, were on the ground outside.
Autodesk suffered about $10,000 in property damage and loss.
The
first two police officers to respond arrived close to 2:00 a.m. in separate
patrol cars. Each saw a newer model dark
sedan of undetermined make and model driving away from the area. Officer Kevin MacDougald slowed down, turned
his spotlight on the car, and saw four African-American men inside. The car departed “at a very high rate of
speed.†The other officer, Ronda Reese,
saw a driver and one or more passengers in the car, but could not identify the
occupants. Both officers activated their
sirens and emergency lights and gave chase, but the car did not stop and they
soon lost sight of it.
About
3:30 a.m., MacDougald, on routine patrol, saw a car turn the wrong way onto a
one-way street in downtown San Rafael.
He activated his emergency lights and siren and followed the car, which
accelerated away from him onto the freeway, heading southbound on Highway 101
“at a high rate of speed.†They reached
speeds of over 90 miles per hour. The
car made a U-turn and began traveling back, in the wrong direction, in the fast
lane of the freeway. MacDougald
immediately stopped and advised other officers of the events.
Officer
Justin Graham had joined the car chase and was driving his patrol car, with
emergency lights and siren activated, southbound on the freeway when he saw the
car’s headlights coming towards him. He
began to do “a left to right zigzag pattern†for “a couple of seconds, several
secondsâ€â€”actions that the oncoming driver appeared to mimic. At the last moment, Graham turned hard right
onto the shoulder to avoid a head-on collision, hitting the embankment with his
push bumper. Graham stated that he had
slowed to about 10 to 15 miles per hour and the oncoming car was about one car
length away when he made his final maneuver.
MacDougald,
in the meantime, had returned to the northbound freeway and, as he crested a
hill, saw “headlights bouncing†off the roadway. MacDougald went to the scene and found an
abandoned dark blue Volkswagen Jetta, mired in a ditch, tilted on its passenger
side—the same vehicle he had been chasing.
The area where the Jetta came to rest was wet and muddy.
Reese
arrived at the scene shortly thereafter, and found the Jetta unoccupied but
with the engine still running. Reese
said the Jetta was “very similar†to the car she tried to follow from the
Autodesk burglary earlier that morning. She
found a monitor on the back seat, two laptop computers under a leather jacket
on the back seat, and a router on the front seat. Reese also found a vodka bottle, a black knit
cap, a cell phone, and a rental agreement from Enterprise Rent-A-Car. In the trunk she found papers including a
vehicle title, a cell phone bill, hospital records, a parking violation notice,
and a printout from a social security office, all bearing Roberson’s name, and
indicating that he resided in Oakland.
MacDougald noted that the driver’s seat was pushed all the way to the
rear and reclined.
Meanwhile,
after avoiding a collision with the oncoming car, Graham exited the freeway, reentered
in the northbound lanes, and exited again after hearing MacDougald’s report
about the Jetta. Graham observed a “heavy-setâ€
male on a nearby local street walking from the direction of the abandoned Jetta. The man had stopped on the center median and
his clothing appeared to be wet and had “landscaping debris.†Graham headed the man off with his vehicle
and directed the man, whom he identified as Roberson, to lie on the
ground. Roberson complied. MacDougald and another officer assisted
Graham in placing Roberson in custody. Roberson
is six feet, two inches tall and weighs 285 pounds.
At
7:11 a.m., Officer Henry Tirre responded to a report that two men had gone to a
residence in San Rafael, where they stated that their car had broken down and asked
the residents to call a taxi. The
residents, located about two blocks from the site where the Jetta left the
roadway, were suspicious and called the police.
The men boarded a taxi at a nearby store, but Tirre stopped the taxi and
detained the men, identified as Morgan Saint Thomas and Gregorio Yarborough. Both men had wet, muddy pants. Yarborough was six feet, one inch tall and
weighed 180 pounds. Saint Thomas was
five feet, eleven inches tall and weighed 160 pounds.
An
Autodesk manager identified the laptops and router located in the Jetta as
belonging to Autodesk.
The
Jetta had been rented to Michael Benson,
driver. Before adding a secondary
driver, Enterprise requires that the person present a driver’s license to
confirm his or her identity.
The
police obtained only a few usable fingerprints from Autodesk, the Jetta, and
the property found in the Jetta. There
were eight impressions matched to Saint Thomas.
No prints were matched to Roberson, Benson, or Yarborough.
The
defense presented the testimony of accident investigation and reconstruction
expert Vernell Hance, who testified that, based on his recreation of the seat
position he observed in photographs of the Jetta, the seat was not in the full
rearward position. From the position of
the seat, a person between the heights of five feet, ten inches and six feet,
two inches could have driven the Jetta.
Hance also testified that the Jetta could not have been nearly as close
to Graham’s car as the officer indicated in his testimony because, at such a
close distance, a collision between the two vehicles would have been
unavoidable.
Roberson
contends that the People presented insufficient
evidence supporting his conviction for any of the charges against him. He also alleges instructional error and
sentencing errors on the part of the court.
I. Legal Standard
“ ‘The
proper test for determining a claim of insufficiency of evidence in a criminal
case is whether, on the entire record, a rational trier of fact could find the
defendant guilty beyond a reasonable doubt.
[Citations.] On appeal, we must
view the evidence in the light most favorable to the People and must presume in
support of the judgment the existence of every fact the trier could reasonably
deduce from the evidence. [Citation.]
[¶] Although we must ensure the
evidence is reasonable, credible, and of solid value, nonetheless it is the
exclusive province of the trial judge or jury to determine the credibility of a
witness and the truth or falsity of the facts on which that determination
depends. [Citation.] Thus, if the verdict is supported by
substantial evidence, we must accord due deference to the trier of fact and not
substitute our evaluation of a witness’s credibility for that of the fact
finder. [Citations.]’ †(People
v. Ochoa (1993) 6 Cal.4th 1199, 1206, quoting People v. Jones (1990) 51 Cal.3d 294, 314.)
II. Burglary and Evading with Willful or Wanton Disregard for Safety
The
direct evidence concerning the burglary at Autodesk, the initial car chase from
the scene of the burglary, and the later car chase, with the Jetta driven the
wrong way on Highway 101 and threatening a head-on collision with a police
vehicle, is undisputed. The question before
us is whether a trier of fact could rationally draw inferences from that direct
evidence that would establish Roberson’s criminal liability for the counts of
commercial burglary and evading a peace officer with reckless driving.
A. Liability as a Principal
The
security officer at Autodesk saw two African-American men inside the burglarized
building, but was unable to further describe the men. One police officer saw four African-American
men inside the Jetta as it left the scene of the burglary. This is not substantial evidence that
Roberson, if he was present, was one of the men who entered the Autodesk
building.
There
is no direct evidence that Roberson was the driver of the rented Jetta at any
point during the time at issue. The
officer who saw four men in the Jetta when it left Autodesk offered no
identification or distinguishing characteristics of the driver. Following the car chase on Highway 101, a
jury could reasonably conclude that because they were found nearby in muddy
clothing, Roberson, Yarborough, and Saint Thomas, at least, had been present in
the Jetta during the chase, but no evidence, beyond the fact that Roberson was
listed as a secondary driver on the rental agreement, indicates that Roberson,
rather than one of the other occupants, had been driving. During sentencing, the court stated: “I don’t think the jurors know who the driver
of the car was. I don’t think the
evidence was conclusive enough . . . .â€
During
deliberations, the jury queried the court:
“Count 1 [¶] Does he have to be the driver to be guilty?†In response, the court told the jury that
their question was answered in the instructions they had been given and pointed
out specific instructions for their review.
The jury ultimately acquitted Roberson on count one (assault on a peace
officer). Because the evidence was
overwhelming that whoever drove the Jetta did commit an assault on a peace
officer, this is a strong indication that the jury was not able to determine
from the evidence that Roberson was the driver of the Jetta.
Finally,
the People concede that it is unlikely that the jury could rationally have
concluded that Roberson was a principal in the burglary: “[The People acknowledge] . . .
that because there were likely more than two men in the Jetta but only two men
entered Autodesk and the evidence is unclear as to whether [Roberson] was one
of them, [Roberson’s] criminal liability was likely that of an aider and abettor.†Further, the People acknowledge the trial
court’s observations on the evidence concerning whether Roberson was the driver
and concede that Roberson’s “criminal liability [for the count of evading with willful
or wanton disregard for safety] was predicated on the violation of Vehicle Code
section 2800.2 being a natural and probable consequence of the burglary.â€
We
conclude that there was insufficient evidence to establish that Roberson was criminally
liable as a principal on the counts of burglary and evading with willful or
wanton disregard for safety.
B. Aider and Abettor Liability for the Burglary
“Aider-abettor
liability exists when a person who does not directly commit a crime assists the
direct perpetrator by aid or encouragement, with knowledge of the perpetrator’s
criminal intent and with the intent to help him carry out the offense.†(People
v. Miranda (2011) 192 Cal.App.4th 398, 407.) “Presence at the scene of a crime, alone, is
insufficient to establish aiding and abetting liability.†(People
v. Em (2009) 171 Cal.App.4th 964, 970.)
However, “among the factors which may be considered in making the
determination of aiding and abetting are:
presence at the scene of the crime, companionship, and conduct before
and after the offense.†(
1087, 1094; accord, People v. Campbell
(1994) 25 Cal.App.4th 402, 409.)
Roberson
was found near the Jetta, which contained personal papers belonging to him, an
hour and a half after the burglary at Autodesk.
This is substantial evidence that Roberson had been in the car at the
time the Jetta left the Highway 101 roadway.
Because the events at issue took place in the middle of the night,
between 2:00 a.m. and 3:30 a.m., and because Roberson resided in Oakland and
not in San Rafael, the jury could reasonably conclude that Roberson was already
a passenger in the Jetta when the burglary was committed. Thus, substantial evidence supports
Roberson’s presence in the Jetta at the time of the burglary.
Even
if Roberson was not driving the vehicle during the period at issue, there was
substantial evidence that Roberson had an ongoing association with the
Jetta. He was named as an authorized
driver on the rental agreement for the vehicle.
The presence of his personal papers in the trunk of the car, including a
vehicle title, were, as the prosecution argued to the jury, of a nature
unlikely to be left “in the back of a vehicle that you are just kind of out in
for the evening.†Even though Benson was
the person who actually rented the car, the jury could reasonably conclude that
Roberson’s association with the vehicle was substantial enough that he supplied
the vehicle that was used in the commission of the burglary, or at least
acquiesced in its use. Further, the jury
could reasonably conclude that Roberson was aware of the criminal intent of the
principals in the burglary, there being no reasonable innocent scenario in
which the car would be at the Autodesk building in the middle of the night.
We
conclude that the evidence was sufficient for the jury to find that Roberson
had knowledge of the intent to burglarize Autodesk and that he intended to, and
did, aid and abet that burglary by, at least, acquiescing in the use of the vehicle
that was used to transport the principals of the intended offense to Autodesk
and to transport them and the stolen items from Autodesk.
C. Violation of Vehicle Code Section 2800.2 as a Natural and Probable
Consequence
1. Sufficiency of the Evidence
“A
person who knowingly aids and abets criminal conduct is guilty of not only the
intended crime [target offense] but also of any other crime the perpetrator
actually commits [nontarget offense] that is a natural and probable consequence
of the intended crime. The latter
question is not whether the aider and abettor actually foresaw the additional crime, but whether, judged
objectively, it was reasonably
foreseeable.†(People v. Mendoza (1998) 18 Cal.4th 1114, 1133.) “Liability under the natural and probable
consequences doctrine ‘is measured by whether a reasonable person in the
defendant’s position would have or should have known that the charged offense
was a reasonably foreseeable consequence of the act aided and abetted.’ †(People
v. Medina (2009) 46 Cal.4th 913, 920.)
“In criminal law, as in tort law, to be reasonably foreseeable ‘[t]he
consequence need not have been a strong probability; a possible consequence
which might reasonably have been contemplated is enough . . . .’ †(People
v. Nguyen (1993) 21 Cal.App.4th 518, 535, quoting 1 Witkin & Epstein, Cal.
Criminal Law (2d ed. 1988) § 132, p. 150.)
“A reasonably foreseeable consequence is to be evaluated under all the
factual circumstances of the individual case [citation] and is a factual issue
to be resolved by the jury.†(
We
believe that a rational jury could readily find that when a vehicle is used in
the commission of a felony, it is reasonably foreseeable that the driver of the
vehicle might attempt to evade police officers who pursue the vehicle. The crucial question we face is whether,
having found Roberson to be an aider and abettor of the commercial burglary and
receipt of stolen property, the factual circumstances support a conclusion by
the jury that it was also reasonably foreseeable that, while evading the
police, the vehicle would be driven “in a willful or wanton disregard for the
safety of persons or property.†(Veh. Code,
§ 2800.2, subd. (a).) The parties do not
offer, nor have we found, prior cases in which a violation of Vehicle Code
section 2800.2 has been proposed as a natural and probable consequence of
another felony.
We
find the People’s argument that a violation of Vehicle Code section 2800.2 was
foreseeable to be unpersuasive. The
People write: “To be guilty of a
violation of [Vehicle Code] section 2800.2, the driver’s conduct in taking high
speed evasive action on both local streets and the freeway was sufficient. It did not require the potentially deadly act
of driving the wrong way on a freeway.
[Citation.] After one reckless
escape from pursuing police officers following the commission of a burglary, it
was reasonably foreseeable that the driver of the vehicle, when police later
attempted to stop the vehicle, would again attempt to elude the pursuing
officers while driving with a ‘wanton or willful disregard for the safety of persons
or property.’ †At trial, the prosecutor
argued similarly.
The
People seem to be arguing that a violation of Vehicle Code section 2800.2
during the second car chase, in which the Jetta drove the wrong way on Highway
101, with obvious wanton disregard for the safety of others, was foreseeable to
Roberson because the driver violated Vehicle Code section 2800.2 during the initial
car chase, immediately following the burglary at Autodesk. However, the only evidence
concerning the driving during the initial pursuit was that it occurred at a high
rate of speed. The People provide no
authority for the proposition that breaking the speed limit, while evading
police officers, without other facts, is sufficient to constitute a violation
of Vehicle Code section 2800.2.
name="_ftnref4" title="">[4] Thus, we are unable to conclude that the
evasion with willful or wanton disregard for safety that occurred during the
later pursuit became foreseeable to Roberson after the initial pursuit.
The
People cite to no circumstances of this case that point to the foreseeability
of evasion with willful or wanton disregard for safety at the time when
Roberson aided and abetted the burglary, or during the continuing crime of
receiving stolen property. We conclude
that insufficient evidence supported a finding by the jury that Roberson was guilty
of a violation of Vehicle Code section 2800.2 by operation of the doctrine of
natural and probable consequences.
2. Instructional Error
Roberson
contends that the court erred by failing to instruct the jury on the lesser
included offense of misdemeanor evasion without willful or wanton disregard for
safety. (See Veh. Code, § 2800.1;
Cal.App.4th 1674, 1679-1680.) The People
oppose Roberson’s contention, arguing that because there was no dispute that
the driver of the Jetta showed a willful or wanton disregard for safety, there
was “ ‘no evidence that the offense was less than that charged,’ †and,
thus, no duty on the part of the trial court to instruct on a lesser included
offense.
We disagree with
the People’s position. When a jury
considers liability under the natural and probable consequences doctrine, it
must determine not only that someone whom the defendant aided and abetted
committed the non-target offense, but also that the non-target offense was
foreseeable to the aider-abettor. This
involves determining that each of the elements of the non-target offense was
foreseeable and, obviously, the facts may be such that the jury could reach
different conclusions about different elements.
When a lesser included offense is contained within the non-target
offense, the jury might conclude that the elements of the lesser included
offense were foreseeable, but not one or more of the additional elements required
for the non-target offense.
The
trial court has a duty to instruct on lesser included offenses when the
evidence raises a question as to whether all the elements of the charged
offense were present. (
239.) Even though it may be clear, as it
is here, that all the elements of the charged offense were present with regard
to the direct perpetrator, the evidence may raise a question as to whether all
the elements were foreseeable to the aider-abettor. In that case, the trial court has a duty to
instruct the jury on the lesser included offense and to explain what the jury’s
choices are when considering application of the natural and probable
consequences doctrine. (See
662, 681 [concluding that because target offenses of conspiracy to commit an
assault and a battery could be misdemeanors, the trial court should have
instructed sua sponte on involuntary
manslaughter, a lesser included offense of murder].)
Because
we have already determined that insufficient evidence established
foreseeability that the evasion in this case would be conducted with willful or
wanton disregard for safety, we conclude that the trial court erred in not
instructing the jury on the lesser included offense of misdemeanor evasion, a
violation of Vehicle Code section 2800.1.
3. Remedy
Evasion
of the police was foreseeable when Roberson aided and abetted the burglary and
received stolen property, but insufficient evidence established foreseeability
that the evasion would be conducted with willful or wanton disregard for
safety. Although the evidence did not
establish that Roberson was liable for a violation of Vehicle Code section
2800.2, there was sufficient evidence that Roberson was liable for a violation
of Vehicle Code section 2800.1 (misdemeanor evasion of a peace officer), a
lesser included offense of Vehicle Code section 2800.2. Accordingly, as authorized by Penal Code
section 1181, subdivision (6), we modify the judgment to show a conviction for
a violation of Vehicle Code section 2800.1, rather than for a violation of
Vehicle Code section 2800.2. The case is
remanded to the trial court for resentencing in accordance with the amended
judgment.
III. Receiving Stolen Property
“A
conviction for receiving stolen property cannot withstand appellate scrutiny
unless substantial evidence was presented to the trier of fact that (1) the
property was received, concealed, or withheld by the accused; (2) such property
had been obtained by theft or extortion; and (3) the accused knew that the
property had been so obtained.†(
249.) “While it has been stated that the
mere presence near the stolen property and/or access thereto by itself is not
sufficient to sustain a conviction for receiving stolen property and that in
order to convict the defendant dominion and control must be shown [citations],
it is well settled that the possession of the stolen item need not be exclusive
and that possession may be established by both direct and circumstantial
evidence and reasonable inferences drawn from such evidence.†(People
v. Johnson (1980) 104 Cal.App.3d 598, 606.)
While dominion and control cannot be inferred from mere presence or
access, “the necessary additional circumstances may, in some fact contexts, be
rather slight.†(People v. Zyduck (1969) 270 Cal.App.2d 334, 336.)
As
we discussed above, substantial evidence supported a finding that Roberson
aided and abetted the burglary at Autodesk and an inference that he was present
during the burglary and was in the Jetta when it left the Highway 101
roadway. It is undisputed that items
stolen from Autodesk were present in the Jetta.
Thus, the jury had before it substantial evidence that the property in
question had been obtained by theft and that Roberson was aware of that
fact. Roberson disputes that substantial
evidence supported the first element of the offense: “No evidence established that [Roberson]
himself handled, possessed, or knowingly intended to make away with the stolen
property. . . . His mere
vicinity to the stolen property . . . was insufficient . . . .â€
What
Roberson overlooks in his argument is the same factor that supports a finding
that he aided and abetted the burglary—his connection to the automobile was
substantial enough for the jury to conclude that he had some measure of control
in how it was used, whether or not that control was exclusive and whether or
not he was driving. The jury could
reasonably conclude that acquiescing in the transportation of stolen property
in an automobile over which he had a measure of control demonstrated the
requisite dominion and control over the stolen property.
We
conclude that substantial evidence supported Roberson’s conviction on the
charge of receiving stolen property.
IV. Sentencing Error
Roberson
also contends that it was error for the trial court to impose a sentence for
the charges of burglary and receiving stolen property that was consecutive to
the sentence for the charge of evading with willful or wanton disregard for
safety. He contends that the sentences
for the burglary and possession of stolen property counts should have been
stayed pursuant to section 654. Without
agreeing with what they characterize as Roberson’s “broad reasoning,†the
People “agree with his conclusion.â€
Section
654, subdivision (a), provides, in pertinent 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€
In
People v. Bradley (2003) 111
Cal.App.4th 765, 769-770 (Bradley),
the court held that when guilt on one offense is premised solely on it being
the natural and probable consequence of another offense, the defendant may lack
the independent objective or intent necessary to impose consecutive sentences
on the two offenses, and section 654 requires that the lesser of the two
sentences be stayed. The People “find
concede that the matter should be remanded for resentencing.â€
Because
we have reduced the conviction for violation of Vehicle Code section 2800.2 to
a conviction for a misdemeanor violation of Vehicle Code section 2800.1, a remand
for resentencing is already part of our disposition. On remand, the burglary or receiving stolen
goods count will provide the longest potential term of imprisonment. We agree with the parties that
applies in this case and, on resentencing, would prohibit the
imposition of a consecutive sentence for the violation of Vehicle Code section
2800.1.
The judgment is
amended to replace the conviction for a violation of Vehicle Code section
2800.2 with a conviction for a violation of Vehicle Code section 2800.1. In all other respects, the judgment is
affirmed. The case is remanded to the
trial court for resentencing in accord with this opinion.
_________________________
Brick,
J.*
We concur:
_________________________
Haerle, Acting P.J.
_________________________
Richman, J.
*
Judge of the Alameda County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
references are to the Penal Code.
and did not record.
