P. v. Rincon
Filed 5/6/13 P. v. Rincon
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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
JOSE JUAN RINCON et al.,
Defendant
and Appellant.
E053475
(Super.Ct.No.
SWF021729)
OPINION
APPEAL from the Superior Court of
County. Mark E.
Petersen, Judge. Affirmed.
Valerie G. Wass, under appointment
by the Court of Appeal, for Defendant and Appellant Jose Juan Rincon.
Thomas Owen, under appointment by
the Court of Appeal, for Defendant and Appellant Dominick Haning, Jr.
Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant
Attorney General, Melissa Mandel and Eric A. Swenson, Deputy Attorneys General,
for Plaintiff and Respondent.
This case involves two defendants,
Jose Juan Rincon (Rincon) and Dominick Haning, Jr. (Haning). A jury found Rincon and Haning guilty of the
same crimes: (1) first degree
burglary (Pen. Code, § 459);
name="_ftnref1" title="">[1] (2)
Code, § 246); (3) shooting at an
inhabited dwelling (Pen. Code, § 246); (4) fleeing a pursing peace officer
and disregarding the safety of others while driving (Veh. Code, § 2800.2);
(5) exhibiting a firearm with the intent of preventing arrest (§ 417.8);
(6) driving a stolen vehicle (Veh. Code, § 10851, subd. (a)); and (7)
being a felon or drug addict in possession of a firearm (Pen. Code, § 12021,
subd. (a)(1)).
In regard to one count of shooting
at an aircraft (§ 246), the jury found true the allegations that Rincon and
Haning personally used a firearm during the commission of the offense (§
1192.7, subd. (c)(8)). Haning admitted
suffering (1) one prior strike conviction (§ 667, subds. (c) & (e)(1)); (2)
one prior serious felony conviction (§ 667, subd. (a)); and (3) one prior
conviction for which he served a prison term (§ 667.5, subd. (b)). The trial court sentenced Rincon to prison
for a term of 13 years. The trial court
sentenced Haning to prison for a term of 32 years.
Rincon raises two issues on
appeal. First, Rincon asserts the
evidence supporting his burglary conviction does not meet the
by not staying the sentences for various convictions. (§ 654.)
Haning contends the trial court erred by not staying the sentences for
some of his convictions because the crimes involved an indivisible course of
conduct. (§ 654.) We affirm the judgments.
HISTORY
On June 12, 2007, at approximately 7:00 p.m., Haning and Brian
Guzman (Guzman) went to the Cahuilla Casino together to drink. Haning brought a gun with him. While in the casino parking lot, Haning
smoked methamphetamine. When Haning
finished smoking, the two men went into the casino. Haning and Guzman stayed at the casino
playing at the slot machines and watching sports while Guzman drank beers.
At approximately 10:00 p.m., Haning and Guzman left the casino.
Haning drove the two toward Temecula.
After driving for approximately 15 minutes, Haning stopped the vehicle
in a rural area, near a group of residential mailboxes. Haning exited the car and tried opening the
mailboxes. At that point, Deputy Bales
drove by the mailboxes. Haning reentered
the vehicle. Bales made a U-turn to go
back by the mailboxes. Bales made eye
contact with Haning, at which point Haning started the vehicle and drove
away. Bales followed Haning and
Guzman. Bales gave the license plate
number of Haning’s vehicle to dispatch and learned the vehicle, a Dodge
Durango, was stolen.
Bales turned on his patrol car’s red
and blue lights. Haning slowed the Durango, and then
sped up “a few times.†Haning told
Guzman he was not stopping because of prior strike convictions and not wanting
to be incarcerated. Eventually, Haning
stopped the vehicle. Haning gave Guzman
a handgun, which he took from under or behind the seat, and instructed Guzman
to shoot the deputy when he approached the vehicle’s window. Guzman told Haning he could not kill the
deputy. Bales exited the patrol car,
Haning looked at Bales, and then Haning “took off†at a high rate of
speed. Bales reentered his patrol car
and pursued Haning.
As the pursuit continued, Haning’s
and Bales’s vehicles were traveling approximately 100 miles per hour. Haning asked Guzman to dial a telephone
number for him. Guzman dialed the number
and handed the telephone to Haning.
Haning referred to the person with whom he was speaking on the telephone
as Jose. Guzman heard Haning tell Jose
he was in a police pursuit and gave his location on the freeway. Haning and Jose were figuring out a place to meet.
Eventually, Haning once again
stopped the Durango. It appeared Haning was
going to allow Guzman to leave the vehicle, because Guzman was asking to go
home. At that point, backup patrol units
began arriving. Bales exited his patrol
vehicle. Haning saw the multiple patrol
cars and “took off again,†with Guzman still inside the Durango. Haning proceeded through stop signs without
stopping and continued driving at approximately 100 miles per hour through a
residential area. Bales followed Haning. A helicopter was also following Haning from
overhead.
Haning entered Interstate 15,
heading north. Haning then proceeded on
Interstate 215 north toward Perris.
Deputies placed a spike strip along Interstate 215 near the transition
to Highway 74. The Durango ran over the
spike strip. At that point, the
Durango’s tires began falling apart. The
Durango came to stop near the intersection of Interstate 215 and Highway
74. Four to six police cars were stopped
near the Durango. Haning continued
talking on the telephone to Jose, telling him his location.
Deputy Gasparini instructed Haning
to exit the vehicle with his hands up.
Haning picked up a firearm. After
approximately 30 seconds, Haning exited the Durango and ran toward Highway
74—away from the law enforcement officers.
Haning had a gun in his hand as he ran.
Sergeant Dittenhofer removed Guzman from the Durango, and Gasparini
placed Guzman in handcuffs. Inside the
Durango, Gasparini found a semi-automatic pistol and a Glock pistol.
As Guzman was exiting the Durango, a
Volkswagen Jetta, being driven by Rincon, traveled down the left shoulder of
the freeway passing the law enforcement vehicles. Haning stopped running and “jump[ed] into the
passenger window of the Jetta.†Rincon
“drove off†in the Jetta. Deputies in
patrol cars began chasing the Jetta. The
Jetta that Rincon was driving was stolen.
The Jetta travelled east on Highway
74 and then turned onto Palomar Road.
Deputy Adams followed the Jetta with his patrol car’s siren and red and
blue lights activated. The Jetta passed
through stop signs without stopping. The
Jetta travelled approximately 100 miles per hour along Highway 74, but slowed
along Palomar where the road becomes dirt.
Rincon and Haning (defendants) eventually reached the end of Palomar
Road; the road dead-ends into a rocky area with hills and power lines.
At the end of the road, Rincon
stopped the Jetta; defendants exited the car and ran into the hills. Defendants hid behind boulders and shot at
the law enforcement helicopter hovering above them. It appeared one of the defendants had a rifle. Defendants fired approximately 10 shots at
the helicopter; one round struck the helicopter’s skid. After shooting at the helicopter, defendants
ran to a residential area.
Defendants ran onto a property
containing trailers and several sheds.
Hector Diaz (Diaz) lived on the property with his extended family. Diaz shared a trailer with his cousin Pedro,
and Pedro’s wife and children. Diaz was
in his bedroom when he heard gunshots.
Diaz looked out the window and saw defendants shooting at a helicopter. Diaz saw defendants run toward his
trailer. Defendants went toward the area
where Diaz’s family parked their trucks.
Defendants moved from the truck area to the trailer, shot the door of
the trailer two times, and entered the trailer.
Defendants went into Pedro’s bedroom with guns in their hands. Pedro customarily left his truck keys hanging
on a wall inside his bedroom. Defendants
were inside the trailer for approximately two minutes. When defendants left the trailer, Pedro
seemed scared and Pedro’s wife was crying.
Defendants returned to the truck
area and drove away in Pedro’s truck.
Rincon was in the truck’s driver’s seat, while Haning was in the
passenger seat. Rincon drove the truck down
the dirt driveway. Sergeant Hoxmeier was
standing outside the front gate, on a group of rocks. Hoxmeier tracked the truck with a rifle
equipped with a flashlight. Haning
appeared to be holding a rifle. Hoxmeier
shot into the truck’s cab five times.
Haning was shot in both thighs, and Rincon was shot in his upper right
arm. The truck “rammed through the
[property’s] fence†and then collided with a patrol car. Law enforcement officers removed defendants
from the truck. Two handguns and a rifle
were found inside the truck.
Defendants
presented evidence related to their methamphetamine consumption, and an expert
opinion concerning methamphetamine induced psychosis and delirium. Haning’s blood reflected 457 nanograms of
methamphetamine per milliliter of blood.
Dr. Zorick, a psychiatrist, concluded “it would be very normal to see at
the very least a psychotic state, if not a delirious state,†given the level of
methamphetamine in Haning’s blood.
Rincon’s blood reflected a methamphetamine level of 162 nanograms per
milliliter. Dr. Zorick concluded at 162
nanograms per milliliter “a sensitive individual could be suffering either from
psychosis or a methamphetamine-induced delirium . . . .â€
In rebuttal, the People presented
the testimony of Maureen Black, a toxicologist.
Black worked for Bio-Tox Laboratories.
In Black’s work, she found most people’s methamphetamine tests have
results in the range of 100 to 500 nanograms per milliliter, which Black
described as a “recreational†level.
Based upon her training, Black concluded a person would need a methamphetamine
level above 1,000 nanograms per milliliter to reach a psychotic or delirious
state.
Also in rebuttal, Detective Bodmer
testified that the morning after the truck crash, Haning spoke to a deputy and
provided his name and date of birth.
Haning appeared “very sharp [and] precise with providing his name, his
date of birth, [and] the city . . . he came from.â€
A. SUBSTANTIAL EVIDENCE
Rincon contends the evidence
supporting his burglary conviction (§ 459) does not meet the substantial
evidence standard because there was no proof that Rincon had the intent to
permanently deprive Pedro of his truck keys, which is an element of
larceny. We disagree.
“‘“When considering a challenge to
the sufficiency of the evidence to support a conviction, we review the entire
record in the light most favorable to the judgment to determine whether it
contains substantial evidence—that is, evidence that is reasonable, credible,
and of solid value—from which a reasonable trier of fact could find the defendant
guilty beyond a reasonable doubt.â€
[Citation.] “[T]he relevant
question is whether, after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.†[Citations.]’†(People
v. Castaneda (2011) 51 Cal.4th 1292, 1322.)
A burglary is committed when a
person enters a house or inhabited camper “with intent to commit grand or petit
larceny or any felony.†(§ 459.) Every burglary involving an inhabited house
or trailer coach is first degree burglary.
(§ 460.) During closing
arguments, in regard to the burglary charge, the prosecutor asserted defendants
entered Pedro and Diaz’s trailer with the intent to commit theft, which was
evinced by defendants “end[ing] up with the car keys belonging to someone else
and with a truck that belonged to someone else.â€
“[I]ntent or intention is manifested
by the circumstances connected with the offense.†(§ 29.2, formerly § 21, subd. (a) eff. Jan.
1, 2013.) Theft is the stealing, taking,
or carrying away of another person’s personal property. (§ 484.)
“‘California courts have long held that theft by larceny requires the
intent to permanently deprive the owner of possession of the property.’ [Citation.]
An intent to temporarily deprive the owner of possession may suffice
when the defendant intends ‘to take the property for so extended a period as to
deprive the owner of a major portion of its value or enjoyment[.]’ [Citation.]
As [our Supreme Court] noted, taking a diamond ring for two weeks is one
thing; taking fresh strawberries for two weeks is another. [Citation.]â€
(People v. MacArthur (2006)
142 Cal.App.4th 275, 280.)
The offense at issue in this case
took place on June 12, 2007. The Jetta
that Rincon was driving was reported stolen on March 15, 2007. The Durango that Haning was driving was
reported stolen on May 26, 2007. It can
be inferred from this evidence that defendants tend to retain the cars they
have stolen, rather than simply taking them for brief joyrides and then
returning them to the owners.
When defendants entered Diaz’s
property, they went to the area where the trucks were parked, then entered the
trailer with guns, and then returned to the area where the trucks were parked. Pedro kept his truck keys in the room
defendants entered and defendants were in the room for approximately two
minutes before returning to the trucks and driving away in Pedro’s truck. It can be inferred from this evidence that
defendants did not know how to start a vehicle’s engine without a key, because
if they did, then they would not have had a reason to leave the truck area and
enter the trailer. The evidence
defendants ran to the trucks and then ran inside the trailer for only two
minutes reflects defendants needed a key to start the truck. Thus, a fact finder could reasonably conclude
defendants entered the trailer with the intent of taking the keys for the
truck. Further, as set forth
that defendants did not customarily return the stolen items they used with any
sort of timeliness. Therefore, there is
support for the finding that defendants entered the trailer with the intent to
deprive Pedro of his truck keys permanently or for an extended period of time.
Rincon asserts there is insufficient
evidence of an intent to permanently deprive because (1) there was no evidence
the truck keys were in Pedro’s bedroom when defendants entered the trailer, (2)
there was no showing regarding how defendants obtained the truck keys, and (3)
it was unclear whether defendants actually took the keys. Rincon further argues that the burglary
evidence was insufficient because the jury failed to reach verdicts on the
to commit a larceny. (§ 459.) There is no requirement that the larceny be
completed in order to find a person guilty of burglary. Accordingly, the lack of evidence highlighted
by Rincon is not persuasive because it goes to whether the larceny was
completed, not whether Rincon had the intent to commit a larceny when entering
the trailer. As explained
conclude Rincon entered the trailer with the intent of taking keys to a truck
and permanently depriving the owner of those keys.
Next, Rincon advances the argument
that defendants did not enter the trailer to commit larceny, rather, they
entered the trailer to “escape from the police.†Rincon’s argument is unpersuasive because he
is not presenting the evidence in the light most favorable to the
judgment. When conducting a substantial
evidence review this court must look at the evidence in the light most
favorable to the judgment. (
272.) As set forth ante, when looking at the evidence in this light, there is
reasonable, credible, and solid evidence from which a trier of fact could
conclude Rincon entered the trailer with the intent of permanently taking truck
keys. Thus, we find Rincon’s argument to
be unpersuasive.
B. SECTION 654
1. LAW
“‘[S]ection 654 precludes multiple
punishment for a single act or omission, or an indivisible course of
conduct.’ [Citation.] ‘“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 not for
more than one.†[Citation.]’ [Citation.]â€
(People v. Lopez (2011) 198
Cal.App.4th 698, 717.) “Under section
654, a course of conduct divisible in time, though directed to one objective,
may give rise to multiple convictions and multiple punishment ‘where the
offenses are temporally separated in such a way as to afford the defendant
opportunity to reflect and renew his or her intent before committing the next
one, thereby aggravating the violation of public security or policy already
undertaken.’ [Citation.]†(Id.
at pp. 717-718.)
We review the court’s explicit or
implicit factual resolutions concerning the application of section 654 for
substantial evidence. (
1333, 1338.) “[W]e consider the evidence
in the light most favorable to respondent and presume the existence of every
fact the trier could reasonably deduce from the evidence. [Citation.]â€
(People v. Martin (2005) 133
Cal.App.4th 776, 781.)
2. RINCON
a) Procedural History
At Rincon’s sentencing hearing, the
trial court addressed the applicability of section 654 and expressly concluded
the statute did not apply. The trial
court gave the following explanation for its conclusion: “It is clear from the evidence that the
defendant and his co-defendant entered the home of [Diaz and Pedro] as alleged
in Count 4 [burglary] with the intent to not only evade the police, but to
obtain a means of escape by obtaining the keys to a vehicle and taking the car
through intimidation and fear. This is a
separate and distinct criminal objective from the other crimes.
“Regarding Count 8 [driving
dangerously while fleeing an officer], the defendants were clearly attempting
to evade officers and flee apprehension by any means possible. [¶]
Regarding Count 9 [exhibiting a firearm to prevent arrest], the
defendant and his co-defendant, by brandishing a firearm[] attempted to resist
arrest, caused the police to retreat or refrain from further acts in arresting
the defendant. And it should be noted
that in many of these counts, the victims were different as well. As an example, Count 4 involved the family of
[Diaz and Pedro], while Counts 8 and 9 involved the police officers and
different ones at different times.
“So as a result, the Court’s
intention, once again, is to sentence the defendant to the total aggregate term
of 13 years based upon the calculations as previously noted.†The principal term in Rincon’s sentence was
firing at an occupied aircraft (Count 6).
(§ 246.)
b) Analysis
(1) Counts
4 and 6 through 9
Rincon contends his sentences for
burglary (Count 4), shooting at an occupied aircraft (Count 6), shooting at an
occupied dwelling (Count 7), driving dangerously while fleeing an officer
(Count 8), and exhibiting a firearm to prevent arrest (Count 9) “were committed
during a continuous course of conduct with the single objective of escape†and
therefore the trial court erred by not staying Rincon’s sentences on Counts 4,
7, 8, and 9. We disagree.
We begin with Count 4—the burglary
of the trailer. Count 6, is the
principal count and involves shooting at the helicopter. Rincon shot at the helicopter and then ran
toward Diaz’s residence. Defendants
jumped over Diaz’s fence, and then proceeded to the area where Diaz’s family’s
trucks were parked. After those tasks,
defendants entered the trailer and completed the burglary comprising Count
4. The evidence supports a finding that
the burglary was separated from the shooting at the helicopter by both physical
space, in that it occurred in a different location; and temporal space, in that
time to reflect elapsed between the two incidents. In other words, the shooting at the
helicopter (Count 6) and the burglary (Count 4) were divisible acts because
they were temporally and physically separated in such a way as to afford Rincon
an opportunity to reflect and renew his intent before committing the
burglary. Accordingly, we conclude the
trial court did not err by not applying section 654 to Count 4.
Next, we address Count 7—shooting at
an occupied dwelling. The record
reflects that Diaz watched defendant through a window in his bedroom. Diaz heard glass breaking around the same
time defendants entered the trailer.
Diaz identified the glass as a window.
Given that the evidence reflects defendants could have entered the
trailer via a broken window, the evidence supports a finding that shooting into
the trailer was done for the purpose of scaring the residents—to make them
frightened and therefore more likely to comply with commands. The shooting into the house was not simply a
means of entry, rather, it was a show of force completed for the purpose of
gaining compliance from the inhabitants.
Accordingly, the trial court did not err by not applying section 654 to
Count 7 because there was an independent purpose or intent for committing the
crime.
Third, we consider defendant’s
argument related to Count 8—driving dangerously while fleeing an officer. Count 8 was comprised of Rincon’s act of
driving away from the Interstate to the dead-end at Palomar Road. Rincon’s act of driving was the beginning of
his involvement in these crimes. After
stopping the car at the end of Palomar Road, Rincon ran into the hills and hid
behind boulders before firing at the helicopter. Once again, the driving is separated from the
other crimes by a physical space and temporal space. After stopping the car, Rincon had an
opportunity to reflect on his actions.
However, it appears Rincon renewed his intent by choosing to run into
the hills and find a hiding place behind a boulder. Thus, the record supports a finding that
section 654 does not apply to Count 8 because driving was an act divisible in
time from the other offenses.
Fourth, we address Count
9—exhibiting a firearm to prevent arrest.
Count 9 consisted of Rincon exiting the Jetta at the end of Palomar
Road, running behind the rocks, and exhibiting a firearm prior to shooting at
the helicopter. Rincon was observed by
deputies running into the hills and hiding behind rocks. While Rincon was running into the hills,
Adams positioned himself behind his car door with his gun drawn. Sergeant Brown was also present at the end of
Palomar Road, watching Rincon run into the hills. Deputies were overhead in the helicopter,
also watching Rincon run into the hills and hide behind rocks.
Rincon stopped the car at the end of
Palomar Road. At that point his
dangerous driving came to an end. Rincon
could have stopped his criminal activity,
but he decided to continue. Rincon ran
into the hills with a firearm. Rincon
could have stopped at that point as well, but he continued on. Rincon shot at the helicopter. The point here is that these crimes did not
take place simultaneously. The crimes
were a string of incidents that could have ended at any point, but Rincon
continually chose to move forward with another crime—to a new location with a
renewed purpose. Given this evidence,
the record supports a finding that section 654 does not apply to Count 9.
Rincon contends his sentence for
Count 9 must be stayed because he was exhibiting the firearm (Count 9) at the
same time he was shooting at the helicopter (Count 6). Therefore, Rincon asserts the criminal acts
were simultaneous and indivisible. A
transcript of law enforcement audio traffic reflects the following:
“Dispatcher: Approaching Palomar.
“Unknown: He’s turned north on Palomar.
“Dispatcher: Northbound Palomar.
“Marlatt: Okay, northbound Palomar. We’re gonna stick with the passenger when he
bails and uh you guys deal with the driver later.
“Unknown: 139, there’s two other firearms inside the
vehicle. The suspect is in possession of
a handgun.
“Dispatcher: Copy, two other firearms inside the vehicle
and the suspect does have position to grab them.
“Marlatt: Star 9-1 copy. If we have a foot bail, we’re sticking with
the passenger. And we’re coming up on
Palomar, coming up to Watson now, on the dirt portion now.â€
The audio traffic goes on to
describe Rincon running into the hills and then shots being fired. This evidence supports a conclusion that the
firearms were not displayed solely at the moment shots were being fired at the
helicopter. Rather, firearms were
displayed prior to Rincon shooting at the helicopter. Accordingly, it appears the offenses were not
simultaneous—exhibiting the firearm took place before the shooting.
Next, Rincon argues he shot at an
inhabited dwelling (Count 7) for the purpose of burglarizing the home (Count
4), and therefore, both crimes were committed for “the sole objective†of
escaping from law enforcement officers.
Rincon’s argument is not persuasive because, as set forth
that shooting the trailer was not simply a means of entry, e.g., there was a
broken window that could have possibly served as an entry point. Rather, the shooting was a show of force
completed for the purpose of gaining compliance from the inhabitants.
3. HANING
a) Procedural
History
During Haning’s sentencing hearing,
the trial court addressed the applicability of section 654. The trial court said, “I firmly believe that
Penal Code section 654 does not apply to this case. [¶]
Here the defendant did have multiple criminal objectives for each of the
crimes for which he is convicted. I’m
going to go through those right now. It
is clear from the evidence that the defendant and his co-defendant entered the
home of [Diaz and Pedro] as alleged in Count 4 with the intent to not only
evade the police, but to obtain a means of escape by obtaining the keys to a
vehicle and take the car through intimidation and fear. This was a separate and distinct criminal
objective from the other crimes.
“Regarding Count No. 8, the
defendants were clearly attempting to evade officers and to flee apprehension by
any means possible. [¶] Regarding Count No. 9, the defendant and his
co-defendant, by brandishing a firearm, attempted to resist arrest, caused the
police to retreat or refrain from further acts in arresting the defendant. [¶] It
should also be noted that in many of these counts, the victims were different
as well. Count 4 involved the family of
[Diaz and Pedro] while Counts 8 and 9 involved different police officers at
different times and different locations.â€
The trial court designated the sentence for Count 6—shooting at an
occupied aircraft—as the principal term.
b) Analysis
(1) Counts
4 and 7
Haning contends Counts 4 and
7—burglary and shooting at the trailer—form an indivisible course of conduct
with a single intent because he shot at the trailer to gain entry to it so as
to escape from law enforcement. We
disagree.
If “‘a defendant had several
independent criminal objectives, he may be punished for each crime committed in
pursuit of each objective, even though the crimes shared common acts or were
parts of an otherwise indivisible course of conduct. [Citation.]’â€
(People v. Phong Bui (2011)
192 Cal.App.4th 1002, 1015.)
Haning did not enter Diaz’s home to
hide from deputies. Haning entered the
home to commit larceny. Haning had an
independent intent in burglarizing the home—to find a means to start one of the
vehicles on the property. When Haning
shot at the door, he displayed force.
Haning had been running, he could have kicked the door or knocked, but
he shot at it. A window broke before
defendants entered the trailer, therefore, they possibly could have entered the
trailer through that broken widow, but they shot at the door. The trial court could reasonably conclude
from this evidence that Haning shot at the door to instill fear in the
occupants and gain their compliance.
Thus, our review of the record reveals substantial evidence supports the
conclusion that section 654 did not apply to Counts 4 and 7 because Haning had
independent objectives at the time he committed the offenses.
Haning
argues that he “simply†“shot at the door to gain access to the home in an
attempt to steal the truck keys inside the home,†which was all part of his
intention to evade law enforcement.
Haning’s sentence supports our conclusion. If Haning’s only intention was to evade law
enforcement then he would have hidden inside the trailer upon gaining
entry. However, Haning had a second,
independent intention, which was to obtain keys to start a vehicle. Accordingly, we find Haning’s argument to be
unpersuasive.
(2) Counts
6 and 9
Haning contends Counts 6 and
9—shooting at an occupied aircraft and exhibiting a firearm—form an indivisible
course of conduct with a single objective of fleeing from arrest. We disagree.
The audio traffic evidence set forth
ante, reflects, “The suspect is in
possession of a handgun.†It can be
inferred that “the suspect†is Haning, since he was the original target of the
pursuit. Deputies then observed
defendants run from the car into the hills.
Defendants began firing shots after hiding behind rocks. This evidence supports a finding that the two
crimes did not occur simultaneously.
Rather, Haning exhibited the firearm, found a place to hide, and then
renewed his objective before shooting at the helicopter. The divisibility of the crimes is supported
by the record and therefore we conclude the trial court did not err.
The
judgments are affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
KING
Acting
P. J.
CODRINGTON
J.
name="_ftn1" title=""> [1] All further statutory references are to the
Penal Code unless otherwise indicated.
