People v. Fuentes

78 Cal.App.5th 670

294 Cal.Rptr.3d 43

The PEOPLE, Plaintiff and Respondent,

v.Rodrigo FUENTES, Jr., Defendant and Appellant.

E075745

Court of Appeal, Fourth District, Division 2, California.

Filed May 12, 2022

Rex Adams Williams, under appointment by the Court of Appeal, for Defendant and Appellant.

Matthew Rodriguez, Acting Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Warren J. Williams and Steve Oetting, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

RAPHAEL, J.

Following a jury trial, defendant and appellant Rodrigo Fuentes, Jr. was convicted of two crimes: (1) fleeing a police officer while driving with a willful or wanton disregard for the safety of persons or property (wanton disregard while fleeing) pursuant to Vehicle Code section 2800.2 ; and (2) resisting a police officer pursuant to Penal Code section 148, subdivision (a)(1). He raises an issue of first impression by contending that the latter crime is a lesser included offense of the former. We hold that resisting a police officer is not a lesser included offense of wanton disregard while fleeing. We reject his other contentions (except for a custody calculation issue the parties agree on) and affirm.¹

I. BACKGROUND

While on patrol in Hemet one afternoon in September 2018, Detective Matthew Chavez, who had investigated several dozen stolen car cases, saw a car of a type he knew was frequently stolen. His partner ran a records check on the license plate, which confirmed that it had been reported stolen. The officers pulled over the car and told the driver to put his hands up and outside the window. The driver, later identified as Fuentes, complied. The officers told Fuentes to open the driver's side door and exit. Fuentes put one foot on the ground but then got back into the car and drove off.

The officers pursued Fuentes. Fuentes ran a stop sign, crossed over into oncoming traffic, and eventually crashed the front of the car into a brick wall. Fuentes then started running. Chavez, starting on foot about three or four car lengths behind, chased him. Chavez saw Fuentes reach for something in his waistband, so Chavez shot a taser gun at him. The taser was ineffective, perhaps because the dart did not penetrate Fuentes's clothing, and Fuentes kept running. Chavez caught up and struck Fuentes on the head with the taser gun out of a concern that Fuentes might arm himself and jeopardize Chavez. Chavez struck Fuentes one more time with his fist, his partner caught up, and the two arrested Fuentes.

Fuentes was charged with receiving a stolen vehicle ( § 496d, subd. (a) ; count 1), wanton disregard while fleeing ( Veh. Code, § 2800.2 ; count 2), resisting a police officer ( § 148, subd. (a)(1) ; count 3), and possession of a controlled substance ( Health & Saf. Code, § 11377, subd. (a) ; count 4). The Information also alleged Fuentes had four prior felony convictions (former § 667.5, subd. (b) ) and a prior strike conviction ( §§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1) ).

Fuentes pled guilty to count 4. A jury found him guilty on counts 2 and 3 and not guilty on count 1. Fuentes waived his jury right on the prior conviction allegations, and the trial court found him guilty on the prior strike. The parties agreed the four prior felony conviction allegations should be dismissed due to a change in the law.

The trial court sentenced Fuentes to four years for count 2 (two years doubled to four due to the prior strike) and to 180 days each on counts 3 and 4, to run concurrent with the sentence for count 2. It then awarded Fuentes 1,460 days of presentence custody and conduct credit and, because the credit meant he had served his full sentence, released him on parole.

II. DISCUSSION

Fuentes raises five issues: first, that the conviction for resisting a police officer must be reversed because it is a lesser included offense of wanton disregard while fleeing; second, that the conviction for wanton disregard while fleeing must be reversed because of an error in the jury instructions; third, that the punishment for resisting a police officer should be stayed under section 654 because it and the wanton disregard while fleeing charge arose from an indivisible course of conduct; fourth, that we should review Fuentes's motion brought under Pitchess v. Superior Court (1974) 11 Cal.3d 531, 113 Cal.Rptr. 897, 522 P.2d 305 ( Pitchess ); and fifth, that he should have been awarded an additional four days of presentence custody and conduct credit.

We agree with Fuentes that he should have been awarded an additional four days of credit. However, we find no error in the convictions on counts 2 and 3, find support for a determination that section 654 did not apply, and find no abuse of discretion in the trial court's denial of the Pitchess motion.

A. Lesser Included Offense

Fuentes contends that count 3, resisting a police officer ( § 148, subd. (a)(1) ), is a lesser included offense of count 2, wanton disregard while fleeing ( Veh. Code, § 2800.2, subd. (a) ). We disagree.

"In general, a person may be convicted of, although not punished for, more than one crime arising out of the same act or course of conduct. ‘In California, a single act or course of conduct by a defendant can lead to convictions "of any number of the offenses charged." ’ " ( People v. Reed (2006) 38 Cal.4th 1224, 1226, 45 Cal.Rptr.3d 353, 137 P.3d 184 ( Reed ).)

"A judicially created exception to the general rule permitting multiple conviction ‘prohibits multiple convictions based on necessarily included offenses.’ [Citation.] ‘[I]f a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former.’ " ( Reed , supra , 38 Cal.4th at p. 1227, 45 Cal.Rptr.3d 353, 137 P.3d 184.) The exception exists because "[t]o permit conviction of both the greater and the lesser offense ‘ " ‘would be to convict twice of the lesser." ’ " ’ ( People v. Ortega (1998) 19 Cal.4th 686, 705, 80 Cal.Rptr.2d 489, 968 P.2d 48.)

There are two tests to determine whether an offense is a lesser included offense of another, but Fuentes relies on only the elements test. (Because this case involves multiple convictions of charged offenses, the other test, known as the "accusatory pleading test[,] does not apply." ( Reed , supra , 38 Cal.4th at p. 1229, 45 Cal.Rptr.3d 353, 137 P.3d 184.)) "Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former." ( Id. at p. 1227, 45 Cal.Rptr.3d 353, 137 P.3d 184.)

Wanton disregard while fleeing, the supposed greater offense here, is found at Vehicle Code Section 2800.2 and is defined as a greater offense of evading a police officer in a vehicle, which is found in Vehicle Code Section 2800.1. Evading a police officer in a vehicle occurs when a person flees or otherwise eludes an officer's vehicle, if the officer's vehicle "is distinctively marked," "is sounding a siren as may be reasonably necessary," "is operated by a peace officer ... [who] is wearing a distinctive uniform," and "is exhibiting at least one lighted red lamp visible from the front" (and "the person either sees or reasonably should have seen the lamp"). ( Veh. Code, § 2800.1, subd. (a).) Wanton disregard while fleeing calls for criminal punishment when "a person flees or attempts to elude a pursuing peace officer in violation of [Vehicle Code] Section 2800.1 and the pursued vehicle is driven in a willful or wanton disregard for the safety of persons or property." ( Veh. Code, § 2800.2, subd. (a).) Damaging property or committing at least three traffic "point" violations while the driving occurs automatically constitutes willful or wanton disregard for the safety of persons or property. (Id. at subd. (b).)

The alleged lesser offense here, resisting a police officer, calls for criminal punishment when a person "willfully resists, delays, or obstructs any public officer ... in the discharge or attempt to discharge any duty of his or her office or employment." ( § 148, subd. (a)(1).)

" ‘[T]he lawfulness of the officer's conduct is an essential element of the offense’ " of resisting a police officer. ( People v. Williams (2018) 26 Cal.App.5th 71, 82, 236 Cal.Rptr.3d 587, italics removed.) " ‘The rule flows from the premise that because an officer has no duty to take illegal action, he or she is not engaged in "duties," for purposes of an offense defined in such terms, if the officer's conduct is unlawful.’ " ( People v. Simons (1996) 42 Cal.App.4th 1100, 1109, 50 Cal.Rptr.2d 351.)

We conclude resisting a police officer is not a lesser included offense of wanton disregard while fleeing because it is not the case that "all legal elements of the lesser offense are also elements of the greater." ( People v. Bailey (2012) 54 Cal.4th 740, 748, 143 Cal.Rptr.3d 647, 279 P.3d 1120.) Resisting a police officer requires that the officer be performing a lawful duty, but wanton disregard while fleeing does not include that element. It merely requires that the officer wear a "distinctive uniform" and that her vehicle do certain things, such as be "distinctively marked" and show a "lighted red lamp." ( Veh. Code, § 2800.1, cited in Veh. Code, § 2800.2, subd. (a).)

Consequently, if an "arrest is unlawful," the defendant "may not be convicted of violating ... section 148" by resisting the officer. ( People v. Southard (2021) 62 Cal.App.5th 424, 435, 276 Cal.Rptr.3d 656 ; People v. Gerberding (2020) 50 Cal.App.5th Supp. 1, 4, 263 Cal.Rptr.3d 702 [reversing section 148 conviction for resisting an unlawful arrest made due to an unreasonable mistake of law].) Fleeing from an officer seeking an unlawful arrest might not violate section 148, but it could nevertheless violate Vehicle Code section 2800.2, as to which the lawfulness of the officer's actions does not matter. For instance, if a...