P. v. Noriega

Filed 1/13/09 P. v. Noriega CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Harold W. Hopp, Judge. Affirmed with directions.

Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Steve Oetting and Eric Swenson, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted defendant of the reckless handling of hazardous waste, a felony (count 1Health & Saf. Code,  25189.6, subd. (a)); attempted transportation of hazardous waste to a facility not permitted to handle such waste, a felony (count 2Pen. Code,  664;^[1]Health & Saf. Code,  25189.5, subd. (c)); handling hazardous waste without a manifest, a misdemeanor (count 3Health & Saf. Code,  25160, subd. (d)(1)); the unregistered transportation of hazardous waste, a misdemeanor (count 4Health & Saf. Code,  25191, subd. (d)(2)); and transportation of hazardous waste without insurance, a misdemeanor (count 5Health & Saf. Code,  25169, subd. (a)). In a bifurcated proceeding thereafter, defendant admitted the truth of allegations that he suffered a prior strike conviction (Pen. Code,  667, subd. (b)-(i), 1170.12) and five prior prison terms (Pen. Code,  667.5, subd. (b)). The court sentenced defendant to an aggregate term of imprisonment of four years eight months, consisting of the following: the low term of 16 months, doubled pursuant to the strike prior, on count 1; the low term of 16 months, doubled pursuant to the strike prior, on count two, concurrent; 30 days in jail concurrent on counts 3 through 5; and one consecutive year for each of the five prior prison terms, striking punishment for three of the priors. On appeal, defendant contends the court erred in imposing concurrent terms on counts 2 through 5, maintaining that the court should have stayed imposition of punishment on those counts pursuant to the dictates of Penal Code section 654. We agree that defendants intent in his commission of the offenses in counts 3 through 5 were merely incidental to his overall objective in count 2, the illegal transportation of hazardous waste. Hence, defendants total sentence is modified so that the sentences imposed on counts 3 through 5 are stayed. However, we concur with the People that defendant maintained divisible intents in mishandling the hazardous materials and attempting to transport them; therefore, we uphold the concurrent sentence imposed on count 2. In all other respects, the judgment is affirmed.

I. FACTUAL BACKGROUND

Multiple law enforcement agencies participated in a sting operation with the intent of apprehending individuals engaged in the illegal transport and dumping of hazardous waste materials. The plan involved securing a commercial location in a remote area of Riverside County which was represented as a generator of hazardous waste. Local haulers would be contacted via telephone numbers left in their own print and Internet advertisements. The telephone contacts were recorded. The agencies obtained commercial hazardous wastes placed in insecure and unsuitable containers. Those willing to haul the waste without proper documentation were the object of the sting.

One of the individuals contacted was Freddie Flores, owner and operator of Freddies Demolition and Hauling. During that telephone conversation, District Attorney Investigator Joseph Asbury posed as a recent purchaser of a commercial business in which a number of containers of hazardous waste had been left behind. Asbury informed Flores that there were approximately eight containers in which paint, gas, oil, and other solvents were contained. Asbury informed Flores that the containers, including a 55-gallon drum, had red stickers on them with little red diamonds. Flores responded that that meant the substances were dangerous. Asbury told Flores he wanted to get rid of the containers. Flores quoted Asbury an initial estimate of $225 to haul away the waste.

The following day, Flores arrived at the commercial location in a pickup truck driven by defendant. Asbury directed defendants and Floress attention to the waste containers, some of which were labeled with stickers indicating the materials inside were flammable and hazardous. The containers were placed in a position so that Flores and defendant could clearly see the labels.

Asbury recorded his conversation with Flores and defendant. During that conversation, Flores indicated that the substances were hazardous waste, requiring that they be disposed of in Banning. Due to what Flores alleged was an extended journey to dispose of the materials, Flores raised his originally quoted charge to $375. Flores noted that if Asbury called the city regarding the materials, theyll come with their white suits and masks on. Defendant noted that one was required to have a hazmat license to haul such materials. Flores represented himself as having such a license, although he did not actually have one. Defendant opened the lid of one of the containers, looked inside, smelled it, and refastened the lid.

Flores and defendant loaded the containers onto the pickup truck. Neither individual checked the lids of the containers to ensure they were secure, nor did they ensure the containers were secured within the bed of the truck. The truck had weep holes which would permit any leaking materials to drip onto the exhaust system of the truck, potentially providing an ignition source for the materials. Defendant drove off with Flores; officers immediately stopped the truck and brought it back to the site.

Asbury, Thomas Donahue, and Carl Josephson testified at trial as expert witnesses on the hauling and disposal of hazardous waste materials. Transporters of commercial hazardous waste are required to be licensed, have a manifest, and carry insurance. A manifest is a document which contains the information as to where the material was generated, who generated it, the Environmental Protection Agency number, how the material is categorized, and an emergency contact number. A manifest is required to ensure that hazardous waste is handled by a licensed hauler, properly handled, and brought to a designated location where it is properly disposed of. A transporter of hazardous waste who does not have a manifest cannot take such waste to a proper treatment or disposal facility. Regardless, at the time of the transaction, there were no commercial hazardous waste treatment or storage facilities in Banning or in all of Riverside County. Furthermore, a licensed hauler would have secured the drum, made sure the bungs were tight and made sure the snap ring was securely placed on the drum to ensure that the threat of vapors escaping and causing a fire or explosion is minimized or eliminated.

The parties stipulated that neither defendant nor the business were registered as hazardous waste transporters nor did they have insurance to transport hazardous waste. The parties further stipulated that the items loaded by Flores and defendant were hazardous waste and that neither Flores nor defendant possessed a hazardous waste manifest.

Ted Ryan, another investigator for the district attorneys office, interviewed Flores after he was returned to the site. Flores informed him that he did not have a license to haul hazardous waste despite knowing that he was required to have one in order to transport the materials at issue. Flores further admitted that his vehicle was not registered to haul hazardous waste and that he did not have the requisite insurance to do so.

II. DISCUSSION

Defendant contends that the offenses for which he was convicted in all five counts constituted an indivisible course of conduct, i.e., the hauling of hazardous waste from one location to another. Hence, he maintains he had a single, common objective in his commission of all the offenses which required the sentencing court to stay imposition of punishment on counts 2 through 5 pursuant to section 654. The People aver that the court impliedly ruled that defendants separate offenses were committed with separate intents when it imposed concurrent terms. Furthermore, the People claim substantial evidence supports the courts implied conclusion because each of the offenses for which defendant was convicted involved separate intents. We agree with defendant to the extent that his acts committed in counts 2 through 5 involved an indivisible course of conduct for which concurrent sentences were erroneously imposed. However, defendants act of failing to properly secure the materials within the truck had a separate intent from his act of attempting to transport them; therefore, imposition of a concurrent term on the count 2 offense was proper.

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. Section 654 precludes multiple punishments not only for a single act, but also for an indivisible course of conduct. (People v. Hester (2000) 22 Cal.4th 290, 294; see also People v. Centers (1999) 73 Cal.App.4th 84, 98; People v. Akins (1997) 56 Cal.App.4th 331, 338-339; People v. Liu (1996) 46 Cal.App.4th 1119, 1135.) The purpose of this statute is to prevent multiple punishment for a single act or omission, even though that act or omission violates more than one statute and thus constitutes more than one crime. (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312.)

Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one. (Neal v. State of California (1960) 55 Cal.2d 11, 19.) But [i]f [a defendant] entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished 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. (People v. Beamon (1973) 8 Cal.3d 625, 639; accord, People v. Latimer (1993) 5 Cal.4th 1203, 1216.)

The question whether section 654 is factually applicable to a given series of offenses is for the trial court, and the law gives the trial court broad latitude in making this determination. Its findings on this question must be upheld on appeal if there is any substantial evidence to support them. (People v. Hutchins, supra, 90 Cal.App.4th at p. 1312.) The courts findings may be either express or implied from the courts ruling. (See People v. Blake (1998) 68 Cal.App.4th 509, 512.) In the absence of any reference to section 654 during sentencing, the fact that the court did not stay the sentence on any count is generally deemed to reflect an implicit determination that each crime had a separate objective. (See, e.g., ibid.; People v. Osband (1996) 13 Cal.4th 622, 730-731.) We must view the evidence in a light most favorable to the respondent and presume in support of the [sentencing] order the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [Citation.] [Citation.] (People v. Hutchins, supra, at pp. 1312-1313.)

We have traditionally observed that if all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once. [Citation.] (People v. Harrison (1989) 48 Cal.3d 321, 335.) Although the question of whether defendant harbored a single intent within the meaning of section 654 is generally a factual one, the applicability of the statute to conceded facts is a question of law. [Citation.] (Ibid.)

The People note that defendant filed a sentencing memorandum which specifically addressed the section 654 issue. Hence, the People argue that since the court sentenced defendant to concurrent terms, it impliedly rejected the applicability of section 654 when it sentenced him to concurrent terms, essentially determining that defendant had separate objectives in his commission of the counts 1 through 5 offenses. In effect, the courts imposition of concurrent sentencing on all the remaining counts did not result in multiple punishment because he would not be required to serve any more time than that imposed on the principal count. Nevertheless, defendant correctly asserts that he is aggrieved by the imposition of concurrent terms, in violation of section 654s proscriptions, by the prospect of sentence enhancements based upon those concurrent sentences should he be convicted of a crime in the future.^[2] [T]he imposition of concurrent sentences is precluded by section 654 . . . because the defendant is deemed to be subjected to the term of both sentences although they are served simultaneously. [Citation.] (People v. Cruz (1995) 38 Cal.App.4th 427, 434.)

While the court specifically noted that it had read defendants sentencing memorandum, neither the parties nor the court raised the section 654 issue at sentencing. The facts regarding defendants commission of the underlying offenses are conceded by the parties. We find that substantial evidence does not support a conclusion that defendants commission of the offenses in counts 2 through 5 were divisible acts with independent intents.

All of defendants acts concerned the illegal transportation of hazardous waste. Indeed, the People in their closing argument specifically noted that [e]very single one of the crimes has some element of transportation. Defendants objective was to provide for the transportation of the proffered hazardous waste at the lowest possible cost, which would undercut any legitimate provider of such services while still affording himself a profit. Indeed, it is notable that in violating one of the provisions against the transport of hazardous materials, doing so without valid registration defendant simultaneously violated several other provisions which, by virtue of his lack of registration, he was incapable of complying with. For instance, in transporting hazardous waste without being registered, defendant could not obtain a manifest which, in turn, meant he could not take the waste to an appropriate disposal or treatment facility. Likewise, Asbury testified that a manifest is required to ensure that hazardous waste is handled by a licensed hauler, properly handled, and brought to a designated location where it is properly disposed of. Thus, again, defendants violation of one of the provisions regarding transportation of hazardous waste immediately placed him in violation of others without any separate intent or act. Moreover, while no evidence was presented on the subject, it is readily apparent that an individual who is not licensed to handle hazardous waste could not obtain insurance to do so.

Furthermore, defendants commission of the offenses in counts 2 through 5 was temporally indistinct. His decision to transport the hazardous materials to a facility not permitted to handle such waste was made at the same time he determined to transport them without having valid registration, without insurance, and without a manifest. Whether that decision was made prior to or contemporaneously with his actual, physical transportation of the materials is immaterial. Rather, the decisive factor is that there were several offenses committed during a course of conduct deemed to be indivisible in time. [Citation] (People v. Harrison, supra, 48 Cal.3d at p. 335.) Finally, we note that the offenses in counts 3 through 5 are strict liability crimes. Their commission required no intent beyond that already required in the count 2 offense because they required no intent at all. Thus, the jury verdict alone would not support a determination that defendant had a separate intent in his commission of those crimes because the jury was not required to determine whether defendant had any intent in committing those crimes. Here, where the sentencing court failed to make an explicit determination regarding defendants intent in committing those crimes and failed to make any mention of section 654, the parties concession of the underlying factual context makes the determination of the matter one of law, rather than fact.

Nevertheless, an unlicensed transporter of hazardous materials could have transported the substances in a secure and statutorily compliant manner; thus, defendants failure to do so here was not merely incidental to his primary objective. Rather, defendants failure to repackage the materials and use an appropriate vehicle to transport them was an independent violation committed in pursuit of a separate objective even though that violation may have shared common acts or parts of defendants otherwise indivisible course of conduct. Thus, defendants acts of failing to properly secure the materials for transportation and attempting to transport them to an unlicensed facility involved separate intents for which separate punishment was appropriate.

We conclude that defendants commission of all the crimes in counts 2 through 5 constituted a single course of conduct with a solitary objective, such that imposition of sentence on counts 3 through 5 should be stayed. Penal Code section 654 prohibits multiple sentences . . . even though the sentences are ordered to run concurrently. [Citations.] The appropriate appellate procedure where improper multiple punishment has occurred is to eliminate [stay] the sentence imposed for the lesser offense and to allow the sentence for the greater offense to stand. [Citations.] (People v. Solo (1970) 8 Cal.App.3d 201, 208-209, disapproved of on another ground in People v. Rogers (1971) 5 Cal.3d 129, 134, fn. 4.)

III. DISPOSITION

Defendants sentence is modified so that execution of the sentences imposed for counts 3 through 5 are stayed pending the finality of the judgment and service of the sentence imposed for count 1, the stay then to become permanent. The trial court is directed to modify the abstract of judgment to reflect that imposition of punishment on counts 3 through 5 has been stayed. The trial court is further directed to deliver a certified copy of the modified minute order and abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ King

J.

We concur:

/s/ Gaut

Acting P.J.

/s/ Miller

J.

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^[1] All further statutory references are to the Penal Code unless otherwise indicated.

^[2] We note that defendant erroneously cites to the now unpublished opinion in People v. King (2007) 156 Cal.App.4th 1526, 1530-1534 for this proposition.