P. v.
Filed 7/2/13 P. v. Tyler CA2/1
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and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
TOMEKO SHANE TYLER,
Defendant and Appellant.
B240499
(Los Angeles
County
Super. Ct.
No. BA385927)
APPEAL from
a judgment of the Superior Court
of
County.
Laura F. Priver,
Judge. Affirmed.
Sarvenaz Bahar, 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.
_______________________________________
SUMMARY
Defendant Tomeko Shane Tyler
appeals from a judgment entered after a jury convicted him of one count of
in violation of Vehicle Code section 10851, subdivision (a) and one count of
evading an officer with willful disregard for safety of persons and property in
violation of Vehicle Code section 2800.2, subdivision (a). After the jury deadlocked on a felony charge
of resisting an executive officer in the performance of his duties in violation
of Penal Code section 69, Tyler pled “no contest†to a misdemeanor charge of
resisting a police officer in violation of Penal Code section 148, subdivision
(a)(1). On appeal, Tyler requests that
we conduct an independent review of the trial court’s in camera
hearing, contends that the trial court erred in failing to stay under Penal
Code section 654 his sentence on the section 148 resisting a police officer
charge, and contends that the trial court erred in calculating his good conduct
credits under Penal Code section 4109.
We affirm.
FACTS
AND PROCEEDINGS BELOW
On June 26, 2011, at approximately 6:10 p.m., Los Angeles Police Officers Josue Merida and
Carlos Lizarraga were on patrol in uniform in a marked police car. The officers noticed a “red colored Acura
Integra†headed in their direction and, as it passed by, they saw Tyler
in the driver’s seat appear “to attempt to conceal himself looking away,
looking down.†The officers made a U‑turn
to follow the Acura. Tyler
made a quick right turn and failed to stop at a red light, prompting the
officers to accelerate and give chase.
As the officers entered the Acura’s license plate number into their
computer, Tyler “conducted a U-turn
in front of [the officers] speeding away screeching tires.†Tyler
failed to stop for another stop sign as the officers sped up “trying to catch [Tyler].†Tyler
accelerated away when the officers activated their lights and sirens. The officers called for “backup and a
helicopter.â€
The officers learned though their
computer that the Acura was stolen. As
the pursuit continued, Tyler drove
through red lights and stop signs without stopping or slowing down, drove at
speeds of 35-40 miles per hour, swerved in and out of traffic, nearly hit
pedestrians and forced other cars to pull off to the side or make sudden
movements to avoid being hit.
Tyler
turned into a parking lot that dead ended and slowed down. While the Acura was still moving, Tyler
opened the driver door, exited the car and began running away on foot.
began pursuing Tyler on foot. Tyler
ran through an opening in a nearby chain-link fence as the officers yelled that
they were police and for him to stop. Tyler
led the officers over railroad tracks, across streets, and over a wall.
Officer Merida, along with another
officer, Officer Vasquez, who had arrived at the scene, were able to take Tyler
“down to the floor.†Officer Vasquez put
his body weight on Tyler as Officer
Merida attempted to gain control of appellant’s arms, which were underneath Tyler. Officer Lizarraga attempted to control
appellant’s legs as appellant kicked.
Officer Merida told appellant to “stop resisting†as he attempted to
pull appellant’s arm out from underneath him.
Appellant “[k]ept kicking his legs back not complying with letting go of
his arms.†Pursuant to department
training, Officer Merida administered a punch to appellant’s face “to distract
‘em [sic].†Appellant kicked Officer
Lizarraga in the legs, which caused him to fall back. Officer Merida punched appellant two more
times and was able to distract appellant enough for Officer Vasquez “to pull
his left arm from underneath him, put it in his – on the [appellant’s] lower
back. [Officer Vasquez] gained control
of [appellant’s] left arm then [Officer Merida] was able to pull [appellant’s]
right arm from underneath him and at that point Officer Vasquez was able to
place handcuffs on [Tyler].†Tyler
was taken into custody.
The jury
convicted Tyler of two felony counts: in count one for unlawful driving or
taking of a vehicle in violation of Vehicle Code section 10851, subdivision
(a), and in count two for evading an officer with willful disregard for safety
of persons and property in violation of Vehicle Code section 2800.2,
subdivision (a). The jury deadlocked on
count three, charging a felony for resisting an executive officer in the
performance of his duties in violation of Penal Code section 69, and the court
declared a mistrial. In bifurcated
proceedings, Tyler admitted the prior conviction allegations and pled “no
contest†to a misdemeanor charge of resisting a police officer in violation of
Penal Code section 148, subdivision (a)(1).
The trial
court sentenced Tyler to five years and four months in
years doubled due to the prior strike for count 2; one-third the mid-term of 24
months doubled due to the prior strike for count 1, to be served consecutive to
count 2; and six months for count 3, to be served concurrent with his other
counts. The court imposed various fines
and assessments. The trial court also
awarded Tyler 361 days of
presentence custody credits, consisting of 241 days of actual custody and 120
days of good conduct credit.
Appellant
filed a timely notice of appeal.
DISCUSSION
On appeal, Tyler
requests that we conduct an independent review of the trial court’s in camera
when it failed to stay under Penal Code section 654 his sentence on the section
148 resisting a police officer charge, and when it failed to calculate his good
conduct credits under revised Penal Code section 4019.
I. Pitchess Motion
Before trial, Tyler made a
“complaints . . . [of] fabrication of charges, fabrication of
evidence, fabrication of reasonable suspicion and/or probable cause, . . .
false arrest, perjury, dishonesty, writing of false police reports, writing of
false police reports to cover up the use of excessive force, planting of
evidence, false or misleading internal reports including but not limited to
false overtime or medical reports, and any other evidence of misconduct
amounting to moral turpitude . . . against Officer(s) Lizarraga
(#38008), Merida (#37596), [and] Vasquez (#39428).â€
The trial court granted in camera
review of the records of all three officers for dishonesty.
complaints.
On appeal, Tyler
requests that we independently review the in camera proceedings to determine
whether the trial court properly exercised its discretion. (People
v. Mooc (2001) 26 Cal.4th 1216, 1228-1232; People v. Wycoff (2008) 164 Cal.App.4th 410, 414-415.)
The record indicates that the court complied with the
procedural requirements of a Pitchess
hearing. There was a court reporter
present and the custodian of records was sworn prior to testifying. (People
v. Mooc, supra, 26 Cal.4th at pp.
1228-1230, fn. 4; People v. White
(2011) 191 Cal.App.4th 1333, 1339-1340.)
The custodian of records complied with the requirement to bring all the
relevant personnel records and submit them for the court to review and
determine which documents were relevant.
(People v. Wycoff,
We have conducted an independent review of the
transcript and the documents, and find no error occurred during the
II. Section 654
Tyler
contends that the trial court erred by not staying his concurrent sentence on
count 3 for resisting arrest because it was part of the same course of conduct
as his conviction in count 2 for evading an officer with willful disregard for
safety of persons and property, arguing that he “had but one intent and
objective and that was to avoid capture by the police.â€
By letter
brief filed on June 20, 2013,
the Attorney General’s office argued that Tyler
waived any section 654 argument when he pled no contest to count 3 and agreed
to the six-month concurrent sentence he now challenges. We agree that Tyler
has waived any argument that section 654 requires that his sentence on count 3
be stayed.
Section 654 provides in pertinent
part: “(a) 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.†(§ 654, subd. (a).) California Rules of Court, rule 4.412(b)
provides: “By agreeing to a specified
prison term personally and by counsel, a defendant who is sentenced to that
term or a shorter one abandons any claim that a component of the sentence
violates section 654’s prohibition of double punishment, unless the claim is
asserted at the time the agreement is recited on the record.†(See People
v. Hester (2000) 22 Cal.4th 290.)
Here at sentencing, the trial court
stated to Tyler’s counsel, “With regard to the other count he’s going to plead
to a misdemeanor, be given 6 months concurrent?†and Tyler’s counsel replied,
“Yes, Your Honor.†The trial court then
told Tyler “I’m going to sentence
you to 6 months in the county jail and run it concurrent with the other
sentence. Do you agree to that?†and Tyler
responded, “Yes.†Accordingly, Tyler
waived any claim that the sentence violated section 654.
Moreover, were we to address Tyler’s
section 654 claim, we would find it to be without merit. The purpose of section 654 is to ensure that
punishment is commensurate with a defendant’s culpability. (People
v. Meeks (2004) 123 Cal.App.4th 695, 705.)
Courts have construed section 654 broadly, restricting punishment for
multiple offenses committed with a single objective. In Neal
v. State of California (1960) 55 Cal.2d 11, 19, the Supreme Court held where
a course of conduct violates more than one statute but is part of an
indivisible transaction with a single intent or objective, section 654 applies,
and the trial court may impose only one sentence. But where a defendant entertains multiple
criminal objectives that are “independent and not incidental to each other,â€
the court may impose separate punishment even where the violations were
otherwise part of an indivisible course of conduct. (People
v. Sok (2010) 181 Cal.App.4th 88, 99.)
“It is the defendant’s intent and objective that determines whether the
course of conduct is indivisible . . . . ‘“[i]f all of the offenses were merely
incidental to, or were the means of accomplishing or facilitating one
objective, the defendant may be found to have harbored a single intent and
therefore may only be punished once.â€â€™â€
(People v. Le (2006) 136
Cal.App.4th 925, 931; see also, People v.
Alford (2010) 180 Cal.App.4th 1463, 1466.)
If section 654 applies, the proper
procedure is to impose a concurrent term and then stay it. (See
People v. Hernandez (2005) 134 Cal.App.4th 1232, 1238-1239.) Where a court imposes a concurrent term but
does not stay the term, we infer the court found defendant had multiple intents
or objectives in committing the offenses and rejected the applicability of
section 654. (People v. Alford, supra,
180 Cal.App.4th at p. 1466.) Where
a court erroneously fails to stay a concurrent term in violation of section
654, it acts in excess of its jurisdiction and the sentence is unauthorized. (People
v. Cuevas (2008) 44 Cal.4th 374, 380, fn. 3.)
The trial court has broad latitude
in determining whether section 654 applies in a given case. (People
v. Garcia (2008) 167 Cal.App.4th 1550, 1564.) The determination whether the defendant
harbored more than one intent or objective is a factual one that will not be
reversed on appeal unless unsupported by substantial
evidence. (People v. Saffle (1992) 4 Cal.App.4th 434, 438.) We review the trial court’s factual finding,
whether implicit or explicit, in the light most favorable to the prevailing
party, presuming the existence of every fact the factfinder could reasonably
deduce from the evidence. (
612, 620.)
Here, after exiting the vehicle and
running, Tyler was brought down and
had three officers trying to control him.
Tyler repeatedly kicked his
legs at officers, knocking Officer Lizarraga down in one instance, before
officers were able to handcuff him.
Viewed in the light most favorable to the prosecution, this evidence
supports a finding that Tyler harbored a separate objective, to harm officers,
that was independent of and not merely incidental to his objective of fleeing.
Accordingly, Tyler
was properly sentenced to a concurrent term of six months on count 3 so that
even if his claim had not been waived, it would not have prevailed.
III. Section 4109
Tyler argues that the trial court
erred in calculating his good conduct credits under Penal Code section 4109 because
the statute is ambiguous and, in order to give meaning to each part,
subdivision (h) must be interpreted to mean that inmates such as Tyler,--who
committed an offense prior to October 1, 2011 but who are in pre-sentence
custody on or after October 1, 2011--should earn good conduct credits at the
enhanced rate provided for in the amended statute for presentence custody on or
after October 1, 2011. By this
calculation, Tyler contends he
should have received an additional 72 days of good conduct credit.
Before October 1, 2011, defendants in local custody were
eligible to earn good conduct credit at a rate of two days for every four days
of actual custody. (former Pen. Code,
§ 4019, subd. (f).) Pursuant to an
amendment which was operative on October 1, 2011, the accrual rate for good
conduct credit changed to two days for every two days of actual custody. (Pen. Code, § 4019, subd. (f).) The statute, as amended, also states: “The
changes to this section enacted by the act that added this subdivision shall
apply prospectively and shall apply to prisoners who are confined to [local
custody] for a crime committed on or after October 1, 2011.
Any days earned by a prisoner prior to October 1, 2011 shall be calculated at the rate
required by the prior law.†(Pen. Code,
§ 4019, subd. (h).) Despite this
express and seemingly unambiguous language making clear that the Legislative
did not intend it to apply retrospectively, Tyler argues that the second
sentence of subdivision (h) implicitly suggests that the Legislature intended
for the new calculation to apply for days in custody on or after October 1,
2011 for inmates who committed their offense prior to October 1, 2011. We disagree.
The first sentence of subdivision
(h) plainly reflects that the Legislature intended the new conduct credit
accrual rate in the amendment to apply only to defendants who committed their
offense on or after October 1, 2011. The second sentence of subdivision (h) does
not explicitly state that the new conduct credit accrual rate applies to
defendants, like Tyler, who committed their offense before October 1, 2011 but are in local custody on or
after October 1, 2011. To harmonize the two sentences, we would
interpret the second sentence as an attempt to clarify that those defendants,
like Tyler, who committed an offense before October 1, 2011 and are in local
custody on or after October 1, 2011, earn conduct credit under the accrual rate
provided by the “prior law.â€
At least two other courts have
likewise found it possible to read the two sentences without creating
ambiguity. In People v. Rajanayagam (2012) 211 Cal.App.4th 42, the court held:
“to read the second sentence†of Penal Code section 4019, subdivision (h) as
stating that a defendant earns day-for-day credit after October 1, 2011, no
matter when the crime was committed, “renders meaningless the first
sentence. This we cannot do.†Rather, this court concluded: “[S]ubdivision
(h)’s first sentence reflects the Legislature intended the enhanced conduct
credit provision to apply only to those defendants who committed their crimes
on or after October 1, 2011. Subdivision
(h)’s second sentence does not extend the enhanced conduct credit provision to
any other group, namely those defendants who committed offenses before October
1, 2011, but are in local custody on or after October 1, 2011. Instead, subdivision (h)’s second sentence
attempts to clarify that those defendants who committed an offense before October 1, 2011, are to earn credit
under the prior law. However inartful
the language of subdivision (h), we read the second sentence as reaffirming
that defendants who committed their crimes before October 1, 2011, still have
the opportunity to earn conduct credits, just under prior law. [Citation.]
To imply the enhanced conduct credit provision applies to defendants who
committed their crimes before the effective date but served time in local
custody after the effective date reads too much into the statute and ignores
the Legislature’s clear intent in subdivision (h)’s first sentence. [¶] . . . [¶] We recognize the Legislature in drafting
subdivision (h)’s second sentence used the word ‘earned.’ And it is impossible to earn presentence
credits for an offense that has not yet been committed. But reading the first and second sentences
together, the implication is the enhanced conduct credit provision applies to
defendants who committed crimes before October
1, 2011, but who served time in local custody after that date. To isolate the verbiage of the second
sentence would defy the Legislature’s clear intent in subdivision (h)’s first
sentence and contradict well settled principles of statutory construction. In conclusion, we find the enhanced conduct
credit provision applies only to
those defendants who committed their crimes on or after October 1, 2011.â€
(People v. Rajanayagam,
fn. omitted.)
Similarly, the court in
Legislature’s clear intent was to have the enhanced rate apply
their crimes on or after October 1,
2011. [Citation.] The second sentence does not extend the
enhanced rate to any other group, but merely specifies the rate at which all
others are to earn conduct credits. So
read, the sentence is not meaningless, especially in light of the fact the
October 1, 2011, amendment to [Penal Code] section 4019, although part of the
so-called realignment legislation, applies based on the date a defendant’s
crime is committed, whereas [Penal Code] section 1170, subdivision (h), which
sets out the basic sentencing scheme under realignment, applies based on the
date a defendant is sentenced.â€
Tyler argues that the reasoning of
314. Tyler notes that
amendment applied prospectively and defined prospectively as “meaning that
qualified prisoners in local custody first became eligible to earn credit for
good behavior at the increased rate beginning on the statute’s operative
date.†(Brown, supra, 54 Cal.4th
at p. 318.) The amendment in
express provision regarding prospective application in contrast to the current
amendment at issue in this case.
We likewise find unpersuasive
Tyler’s other arguments distinguishing Rajanayagam
and Ellis and finding support for his
position in Brown.
Tyler’s credits were thus correctly
calculated under former section 4019, subdivision (f). As Tyler spent 241 days in actual custody, he
was entitled to no more than the 120 days of good conduct credit he received.
DISPOSITION
The
judgment is affirmed.
NOT TO BE
PUBLISHED.
CHANEY,
J.
We concur:
ROTHSCHILD,
Acting P. J.
JOHNSON,
J.
Superior Court (1974) 11 Cal.3d 531.
leads to a chain link fence.
