Filed 4/22/13 P. v. Gueyger CA3 NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C067862
Plaintiff and Respondent, (Super. Ct. Nos. 10F03226, 10F03260 & v. 10F03449)
ERNESTO JOAQUIN GUEYGER et al.,
Defendants and Appellants.
Defendants Ernesto Gueyger and Rudy Ponce, along with
Sergio Bravo,1 stole cigarettes and snacks from a 7-Eleven store.
A jury found Gueyger and Ponce guilty of commercial burglary (Pen. Code,2 § 459), and petty theft with a prior (§ 666).
Gueyger was the getaway driver; he led police on a high-speed
1 Bravo is not a party to this appeal. He was tried before a separate jury and found guilty of commercial burglary and theft, but, like Ponce, acquitted of robbery. 2 Further undesignated statutory references are to the Penal Code.
1 chase, rammed a patrol car, and fled again before the police
apprehended him. In addition to the burglary and theft charges,
Gueyger was also found guilty of robbery (§ 211), being an
accessory after the fact (§ 32), recklessly evading the police
(Veh. Code, § 2800.2), and assault with a deadly weapon (his
car) on a peace officer (§ 245, subd. (c)). Ponce had also
participated in the robbery of a different 7-Eleven store two
days before. As to that incident, the jury found him guilty of
robbery (§ 211) and petty theft with a prior (§ 666).
Gueyger and Ponce contend their convictions for petty
theft with a prior (§ 666) must be reduced to misdemeanor
theft because a section 666 conviction now requires three prior
theft-related convictions, which neither defendant has suffered.
Further, they contend they did not personally waive jury on the
priors. The People concede that under a new amendment to
section 666, which is retroactive, the section 666 convictions
cannot stand and must be reduced to misdemeanor theft.
Gueyger further contends, and the People concede, that he cannot be convicted of robbery and being an accessory after the
fact for simply driving away after the robbery, and that the
abstracts of judgment must be corrected to show that credits
were awarded pursuant to section 2933.1 rather than section
4019. As we will explain, we agree with the parties on these
points.
Gueyger also argues that section 654 bars a separate sentence on reckless evading because it was part of a continuous
course of conduct, with the same intent and objective, as the
2 assault. Although the People do not agree with Gueyger on this
point, we do. Finally, we construe the notation on the abstract
of judgment that Gueyger‘s driver‘s license was suspended for
life to be acknowledgement that his license will be revoked by
the Department of Motor Vehicles pursuant to Vehicle Code
section 13351.5 because he used a motor vehicle as a deadly
weapon in the felony assault and we remand for the trial court
to add this explicit finding to the abstract of judgment. FACTS
May 7, 2010 Crimes
On May 7, 2010, Ponce and another, much shorter,3 man
entered a 7-Eleven store at El Camino and Northgate shortly
before 4:00 a.m. They wanted to buy beer, but the clerk refused
to sell it to them because it was after 2:00 a.m. The shorter
man held his fist under his shirt at his waist and said he ―got
something.‖ The clerk feared he had a weapon. The two men
grabbed three cases of beer and ran off. Ponce returned and
grabbed cigarettes. May 9, 2010 Crimes
On May 9, 2010, at about 3:40 a.m., Ponce and Bravo entered
a 7-Eleven store in Rio Linda. Gueyger was in a Jeep Cherokee
waiting outside. Ponce asked for cigarettes. The clerk claimed
3 Gueyger was initially charged as the second robber. After an enhancement of the store video showed the height differential between Ponce and the other robber was too great for the second robber to be Gueyger, the trial court granted Gueyger‘s motion for acquittal pursuant to section 1118.1 as to counts 9 and 10. Only Ponce was found guilty of the May 7 robbery.
3 Ponce pulled out a knife. Ponce and Bravo ran out with
cigarettes, soda, and snacks (counts 1, 2, 3 and 5).
Sacramento County Sheriff‘s Department Deputies Greg
Steindorf and Dennis Peyton responded to an aborted 911 call
from the store. When they reached the store, the clerk had run
into the street and was pointing down the street. The deputies
saw the tail lights of a vehicle moving away and accelerated to
catch up. They followed a Jeep Cherokee with no rear license
plate. When the Jeep turned left against a light, the deputies
activated their lights and siren.
The Jeep moved towards the right shoulder as if to pull
over, but it continued into a residential neighborhood. The
Jeep was traveling 50 miles per hour where the speed limit was
only 25; it swerved and failed to stay within its lane (count
6). It then went out of control, hit a parked car and continued
into a fence, bounced onto the curb, and stopped. The passenger
doors opened and the suspects fled. Steindorf followed the
fleeing suspects and caught Ponce (count 7). While Peyton was still in the driver‘s seat of the patrol
car, Gueyger backed up the Jeep and rammed the patrol car;
Peyton felt the impact. Peyton heard the Jeep still
accelerating; Gueyger was still trying to maneuver the Jeep from
where it was ―boxed in.‖ Peyton got out of the patrol car and
approached the front passenger side of the Jeep. He struck the
window with his flashlight three times before it broke. Peyton leaned into the Jeep just past his shoulder and pointed his gun
at Gueyger, telling him to stop the car or Peyton would kill
4 him. Instead, Peyton felt the Jeep begin to accelerate and knew
he had to get out or he would be dragged, possibly under the
car. He got out of the way immediately and radioed for
assistance (count 8). Another deputy found Gueyger three or
four blocks away, covered in weeds. DISCUSSION
I
Reduction of Felony Petty Theft with a Prior (§ 666)
to Misdemeanor Theft (§ 484)
Both Gueyger and Ponce contend their convictions for petty
theft with a prior must be reduced to misdemeanor theft because
section 666 now requires three prior theft-related convictions
and Gueyger has only two and Ponce one. The People concede that
the change in the law is retroactive and defendants are legally
entitled to the benefit of the change.
A. The Law
At the time Gueyger and Ponce committed the present
offenses, section 666 provided: ―Every person who, having been convicted of petty theft,
grand theft, auto theft under Section 10851 of the Vehicle Code,
burglary, carjacking, robbery, or a felony violation of Section
496 and having served a term therefor in any penal institution
or having been imprisoned therein as a condition of probation
for that offense, is subsequently convicted of petty theft, then
the person convicted of that subsequent offense is punishable by imprisonment in the county jail not exceeding one year, or in
the state prison.‖
5 Effective September 9, 2010,4 Assembly Bill No. 1844 (2009–
2010 Reg. Sess.), the Chelsea King Child Predator Prevention Act
of 2010 (the Act), amended section 666 to provide, in pertinent
part:
―(a) Notwithstanding Section 490 [specifying the punishment
for petty theft], every person who, having been convicted three
or more times of petty theft, grand theft, auto theft under
Section 10851 of the Vehicle Code, burglary, carjacking,
robbery, or a felony violation of Section 496 and having served
a term therefor in any penal institution or having been
imprisoned therein as a condition of probation for that offense,
is subsequently convicted of petty theft, then the person
convicted of that subsequent offense is punishable by
imprisonment in the county jail not exceeding one year, or in
the state prison.‖5 (Italics added.)
In People v. Vinson (2011) 193 Cal.App.4th 1190 (Vinson),
the court considered whether the amendment to section 666 was
retroactive. The court followed In re Estrada (1965) 63 Cal.2d 740, 748, which held, ―where the amendatory statute mitigates
4 We note that the amendment to section 666 became effective almost a month before the People filed the information in this case on October 5, 2010. 5 New subdivision (b) of section 666 provides for imprisonment in the county jail or state prison upon conviction of petty theft with one prior theft-related conviction and period of incarceration for persons who are required to register as sex offenders or who have suffered a prior violent or serious felony conviction under the three strikes law.
6 punishment and there is no saving clause, the rule is that the
amendment will operate retroactively so that the lighter
punishment is imposed.‖ The Vinson court reasoned that the
amendment to section 666 ―had the effect of mitigating
punishment by raising the level of recidivism required before a
defendant can be sentenced to state prison.‖ (Vinson, supra,
193 Cal.App.4th at p. 1199.) Applying the amendment
retroactively was also consistent with the legislative intent in
passing the Act ―to save money and space in order to partially
offset the higher costs and inmate population occasioned by
increasing sentences for sexual predators.‖ (Vinson, supra, at
p. 1199.) The court explained: ―In light of the concerns
expressed in the legislative history about prison overcrowding
and the costs associated with the act, and the fact the cost
avoidance achieved by shifting some nonviolent, non-sex-offender
recidivists to the county correctional level will not completely
offset the new costs [citation], it would make no sense to
conclude the section 666 amendment should apply only concurrently with the remaining provisions of the act, i.e.,
prospectively.‖ (Ibid.)
B. Analysis
We find Vinson persuasive as to the retroactive effect of
the amendment to section 666. Therefore, we agree with the
parties that Gueyger and Ponce are entitled to the mitigating
effects of the amendment to section 666. The information alleged Gueyger had suffered two theft-related priors, petty
theft and vehicle theft, and served a term for each, while Ponce
7 had suffered only one theft-related prior, grand theft, and had
served a term for it.6 The court found these allegations true.
Since neither defendant had suffered three theft-related
priors as now required by section 666, their convictions for
that offense cannot stand. We shall modify the judgment to
reduce count 2 for Gueyger and counts 3 and 11 for Ponce to
misdemeanor theft (§ 484). (See People v. Cortez (1994) 24
Cal.App.4th 510 [reducing conviction for section 666 to section
484 where no evidence defendant served a term in a penal
institution as required by section 666].)
Since we are reducing defendants‘ section 666 convictions
to misdemeanor theft, we need not address their contention that
such a reduction is required because the trial court failed to
take personal waivers of the right to a jury on the allegations
of the theft-related priors.7
II
Accessory After the Fact
Gueyger contends he cannot be convicted of both robbery and being an accessory after the fact because the latter charge is
based on the facts constituting part of the robbery, driving
6 The probation report indicates Gueyger sustained a juvenile adjudication for robbery, which would make him chargeable under section 666, subdivision (b). However, this prior adjudication was neither alleged nor found true. 7 A personal waiver is, however, required. (See Cal. Const., art. I, § 16.)
8 away from the location of the robbery. He contends count 6 must
be reversed. The People concede error and we agree.
California law is divided over whether a person can be
convicted as both a principal and an accessory to the same
felony. (In re Eduardo M. (2006) 140 Cal.App.4th 1351, 1358
(Eduardo M.).) Here, as in Eduardo M., we need not resolve the
conflict in order to arrive at our holding.
In Eduardo M., a minor who had aided and abetted assaults
was convicted both as a principal and as an accessory based on
his flight after the crime. The appellate court found it
unnecessary to resolve the conflict over whether conviction as
both a principal and an accessory was proper, holding ―only that
a defendant who is convicted as a principal cannot also be
convicted as an accessory solely on the basis of his immediate
flight from the crime scene and his subsequent denials of his
own involvement, even if that conduct incidentally helps other
principals to escape.‖ (Eduardo M., supra, 140 Cal.App.4th at p. 1359.) The court reasoned, ―Nearly all felons, whether
acting alone or in concert with others, intend before, during,
and after committing the felony to escape being apprehended and
punished for their crimes. Attempting to escape after
committing a felony is an inherent part of committing the
felony, involving in most cases acting on a previously formed
intent. Thus, escaping does not create greater criminal culpability. Indeed, although Penal Code section 32 does not
expressly so state, California long has recognized that a
9 principal to a felony cannot become an accessory to that felony
by attempting to make his own escape. [Citations.]‖ (Eduardo
M., supra, at p. 1360.)
―If a felon cannot be subjected to additional liability as
an accessory for fleeing and denying his guilt, then the same
rule should apply to a principal whose flight and denials have
the incidental effect of helping a coprincipal to escape.
Unlike when third persons who are not principals to a felony
intentionally aid the felon‘s escape after the crime is
completed, a principal who flees and thereby incidentally
assists another principal in escaping does not thereby expand
the circle of criminality beyond the original participants.
Moreover, because immediate flight and denials of involvement
are such ubiquitous features of criminal conduct, they are too
equivocal to constitute separate acts supporting an inference
that the fleeing and guilt-denying felon harbored a separate
intent to aid the escape of his coprincipals. For a principal
to be convicted as an accessory, which requires both separate acts and intent, the principal must do something more than flee
and deny his own guilt.‖ (Eduardo M., supra, 140 Cal.App.4th at
p. 1361.)
Here, Gueyger fled in the Jeep with Ponce and the others
immediately after the robbery at the 7-Eleven store. There is
no evidence of any other act that would support an accessory charge. Under Eduardo M., with which we agree, Gueyger‘s
accessory conviction must be reversed.
10 III
Section 654
Gueyger contends his sentence on reckless evasion of the
police, count 7, must be stayed under section 654 because both
the evading and the assault on a peace officer arose from the
same continuous course of conduct and had the same criminal
intent and objective--to get away. We agree.
Section 654 provides in relevant 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.‖
―The ‗act‘ necessary to invoke section 654 need not be an
act in the ordinary sense of a separate, identifiable, physical
incident, but may instead be a ‗course of conduct‘ or series of
acts violating more than one statute and comprising an
indivisible transaction punishable under more than one statute. [¶] The divisibility of a course of conduct depends upon the
intent and objective of the defendant. If all the offenses are
incidental to one objective, the defendant may be punished for
any one of them, but not for more than one. On the other hand,
if the evidence discloses that a defendant entertained multiple
criminal objectives which were independent of and not merely
incidental to each other, the trial court may impose punishment for independent violations committed in pursuit of each
objective even though the violations shared common acts or were
11 parts of an otherwise indivisible course of conduct.
[Citations.] The principal inquiry in each case is whether
the defendant‘s criminal intent and objective were single or
multiple. Each case must be determined on its own facts.
[Citations.]‖ (People v. Liu (1996) 46 Cal.App.4th 1119, 1135–
1136.)
There is an exception to section 654 where there are
multiple victims of violent crimes. ―[S]ection 654 does not
apply to crimes of violence against multiple victims.‖ (People
v. King (1993) 5 Cal.4th 59, 78.) As the purpose of section 654
―is to insure that the defendant‘s punishment will be
commensurate with his criminal liability,‖ when he ―commits an
act of violence with the intent to harm more than one person or
by means likely to cause harm to several persons,‖ his greater
culpability precludes application of section 654. (Neal v.
State of California (1960) 55 Cal.2d 11, 20—21, disapproved on
another point in People v. Correa (2012) 54 Cal.4th 331.)
―A defendant may properly be convicted of multiple counts for multiple victims of a single criminal act only where the act
prohibited by the statute is centrally an ‗act of violence
against the person.‘ [Citation.]‖ (Wilkoff v. Superior Court
(1985) 38 Cal.3d 345, 351.)
―‗―A trial court‘s implied finding that a defendant
harbored a separate intent and objective for each offense will
be upheld on appeal if it is supported by substantial evidence.‖ [Citation.]‘ [Citation.]‖ (People v. Sanchez (2009) 179
Cal.App.4th 1297, 1310.)
12 B. Analysis
Here, the trial court did not make express findings with
respect to the application of section 654. (See Cal. Rules of
Court, rule 4.424.) The issue of section 654 did not arise at
sentencing with respect to the evading and assault charges.
We consider whether there is substantial evidence to support an
implied finding of a separate intent and objective.
The evidence supports Gueyger‘s position that he harbored
the same intent and objective during both the evading and the
assault. Deputy Peyton testified that after the Jeep
temporarily stopped on the curb, immediately before it rammed
the patrol car and then took off with Peyton still partially
inside,8 he heard the Jeep accelerating. Peyton testified
Gueyger was consistently trying to maneuver the vehicle to get
away. There was no evidence that Gueyger stopped trying to get
away in order to harm Peyton; the only evidence was that Gueyger
was trying to get away the entire time.
The People do not offer a separate intent and objective for the assault. Rather, they argue the multiple victim exception
for acts of violence applies. The People argue Gueyger
committed acts of violence against multiple people--Peyton and
the ―other people‖ whose safety Gueyger disregarded while
fleeing.
8 The People argued either act constituted assault.
13 Certainly section 245, subdivision (c), which requires
assault with a deadly weapon other than a firearm or by means
likely to produce great bodily injury, qualifies as an act of
violence. Felony or reckless evading, however, has been held
not to be an act of violence for purposes of the multiple victim
exception of section 654. (People v. Garcia (2003) 107
Cal.App.4th 1159, 1163.) Indeed, because subdivision (b) of
Vehicle Code section 2800.2 defines the term ―willful and wanton
disregard for the safety of persons or property‖ very broadly to
include any flight from an officer in which three of certain
traffic violations are committed (some of which can be committed
without endangering human life), Vehicle Code section 2800.2 is
not an inherently dangerous felony for purposes of second degree
felony murder. (People v. Howard (2005) 34 Cal.4th 1129, 1137-
1139.)
The trial court erred in failing to stay Gueyger‘s sentence
on count 7, reckless evading, pursuant to section 654.
IV Lifetime Suspension of Driving Privileges
A. Background
The probation report recommended that Gueyger‘s driving
privileges be revoked for life pursuant to Vehicle Code section
13351.5. At sentencing, the trial court did not mention driving
privileges, but indicated it would impose the terms recommended
by the Probation Department with certain modifications. The abstract of judgment indicates Gueyger‘s driving license is
suspended for life pursuant to Vehicle Code section 13351.5.
14 Gueyger contends it was improper for the trial court to
suspend his driving privileges. He contends such an order was
not part of the oral pronouncement of sentence and it is an
unauthorized sentence because only the Department of Motor
Vehicles (DMV) can suspend driving privileges. Because the
order is unauthorized, Gueyger argues, he has not forfeited the
claim by failing to object at sentencing.
B. The Law
Vehicle Code section 13351.5 provides in part: ―(a) Upon
receipt of a duly certified abstract of the record of any court
showing that a person has been convicted of a felony for a
violation of Section 245 of the Penal Code and that a vehicle
was found by the court to constitute the deadly weapon or
instrument used to commit that offense, the department
immediately shall revoke the privilege of that person to drive a
motor vehicle. [¶] (b) The department shall not reinstate a
privilege revoked under subdivision (a) under any
circumstances.‖ A Vehicle Code section 13351.5 revocation is a mandatory
administrative function. (In re Grayden N. (1997) 55
Cal.App.4th 598, 604 (Grayden N.).) ―Simply put, the ... court
is bound, under the statute, to report to the [DMV] the true
finding [defendant] committed an assault with a deadly weapon in
violation of Penal Code section 245, subdivision (a), and the
true finding the weapon ... used was a vehicle.‖ (Grayden N., supra, 55 Cal.App.4th at p. 604.) Driving is a privilege, not a
right, and license revocation is a civil, not a criminal,
15 sanction. (People v. Linares (2003) 105 Cal.App.4th 1196,
1199.) The DMV, not the court, has the power to revoke a
driver‘s license pursuant to Vehicle Code section 13351.5.
(Grayden N., supra, at p. 604.)
C. Analysis
The trial court incorporated the terms recommended by the
probation report, except those it modified, in its oral
pronouncement of sentence. Thus, the reference to Vehicle Code
section 13351.5 was part of the sentence. We construe the trial
court‘s order as an acknowledgement that Gueyger‘s driver‘s
license would be revoked by the DMV upon receipt of the
certified abstract. The trial court, however, failed to include
in the abstract the precise information the DMV needs to revoke
Gueyger‘s license, namely, that Gueyger used a vehicle to commit
the section 245 felony. Since this case must otherwise be
remanded for correction of the abstract, upon remand the court
should make the determination called for by Vehicle Code section
13351.5. VI
Correction of Abstract
Both Gueyger and Ponce properly received only 15 percent
conduct credits pursuant to section 2933.2 due to their robbery
convictions. Both abstracts, however, indicate local conduct
credits were awarded pursuant to section 4019. Gueyger
contends, and the People concede, the abstracts should be corrected. We agree and shall order correction.
16 DISPOSITION
Gueyger‘s conviction on count 6, accessory after the fact,
is reversed. Gueyger‘s conviction on count 2 and Ponce‘s
convictions on counts 3 and 11, petty theft with a prior, are
reduced to convictions for section 484, misdemeanor theft.
Gueyger‘s sentence on count 7, reckless evading, is stayed
pursuant to section 654. We further remand the matter for
correction of the abstracts of judgment to show that local
conduct credits for both defendants are awarded pursuant to
section 2933.1, and for the trial court to make the express
finding that Gueyger used a vehicle as a deadly weapon in the
felony assault, count 8. As so modified, the judgment is
affirmed. The trial court is directed to prepare an amended
abstract of judgment for both Gueyger and Ponce to reflect these
modifications and to forward certified copies of the amended
abstracts to the Department of Corrections and Rehabilitation
and the Department of Motor Vehicles.
DUARTE , J.
We concur:
NICHOLSON , Acting P. J.
HULL , J.