People v. Garcia

THE PEOPLE, Plaintiff and Respondent, v. EMMANUEL GARCIA, Defendant and Appellant.

F083245

California Court of Appeals, Fifth District

December 28, 2022

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Kern County No BF184915A Gregory A. Pulskamp, Judge.

Kaiya R. Pirolo, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Nikta (Nikki) Allami, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

THE COURT ^[*]

Defendant Emmanuel Garcia was found guilty by a jury on seven criminal counts and was sentenced to four years eight months in prison. His sentence included upper term sentences on two counts, one of which was stayed pursuant to Penal Code section 654.^[1] On appeal, defendant contends that (1) his sentence must be vacated, and the case remanded for resentencing in light of Senate Bill No. 567's (2021-2022 Reg. Sess.) (Senate Bill 567) amendments to section 1170 subdivision (b) and (2) the trial court erred in failing to stay, pursuant to section 654, subdivision (a), the resisting a police officer conviction. The People disagree on both accounts. We affirm.

PROCEDURAL SUMMARY

On May 7, 2021, the Kern County District Attorney filed an information charging defendant with buying or receiving a stolen vehicle (§ 496d, subd. (a); count 1), driving in willful or wanton disregard for safety of persons or property while fleeing a pursuing peace officer (Veh. Code, § 2800.2; count 2), evading a peace officer by driving on a highway in the opposite direction of traffic (Veh. Code § 2800.4; count 3), misdemeanor driving on a suspended or revoked license (Veh. Code, § 14601.1, subd. (a); count 4), misdemeanor failing to notify a property owner after a collision resulting in damage (Veh. Code, § 20002, subd. (a); count 5), misdemeanor resisting or obstructing a police officer (§ 148, subd. (a)(1); count 6), and misdemeanor possession of a device used for unlawfully injecting or smoking a controlled substance (Health &Saf. Code, § 11364; count 7).^[2] As to count 1 the information further alleged that defendant had suffered a prior vehicle theft conviction (§ 666.5, subd. (a)).

On August 2, 2021, the jury found defendant guilty on all counts. On the same date, at a bifurcated proceeding outside the presence of the jury, the trial court found the prior conviction allegation as to count 1 to be true in reliance on a certified copy of defendant's RAP sheet.

On August 27, 2021, the trial court sentenced defendant to an aggregate term of four years eight months as follows: on count 1, four years (the upper term); on count 2, eight months (one-third the middle term), consecutive to the term on count 1; on count 3, three years (the upper term), stayed pursuant to section 654 "until the successful completion of the sentence imposed above in [c]ounts 1 and 2 . . ."; on counts 4, 5, and 7, 180 days in jail, concurrent with the sentence on count 1; and on count 6, one year in jail, concurrent with the sentence on count 1.

On the same date, defendant filed a notice of appeal.

FACTUAL SUMMARY

On March 27, 2021, R.V. drove himself and his wife to a shopping center in Kern County in his black diesel pickup truck. He estimated that the truck was worth $20,000. When he exited a grocery store at the shopping center, he saw that his truck was gone but his keys were still in his pocket. The truck was registered in R.V.'s name alone and neither he nor his wife had given anyone permission to take it. R.V. did not know defendant and had not given him permission to take the truck. R.V. reported the truck stolen.

R.V.'s truck was eventually recovered, and an officer called him one morning at 4:00 a.m. to inform him that it had been recovered.

In March and April 2021, Joshua Patty was a Bakersfield Police Officer assigned to the patrol division. One of his duties in that role was making vehicle stops. On March 31, 2021, from 9:00 p.m. to April 1, 2021, at 7:00 a.m., Patty and his partner, Bakersfield Police Officer Ryan Jordan, were on patrol in a marked patrol vehicle. At approximately 3:27 a.m., a black pickup truck drove past Patty and Jordan. Jordan conducted a records check of the license plate-which matched the plate on R.V.'s truck-and it returned stolen. Patty saw that defendant was driving the truck. He then attempted to conduct a traffic stop by activating his overhead red and blue lights and siren. Defendant did not yield to the stop.

Defendant drove the truck through a parking lot, over a sidewalk, and continued southbound on the street. Defendant continued through an intersection with a stop sign without stopping, turned east and drove along the street against the flow of traffic. Patty and Jordan followed on the correct side of the street. Defendant continued driving against traffic until he entered a southbound freeway entrance. Defendant drove south on the freeway, "from one edge [of] the freeway to the other." At the time, there was freeway construction and defendant drove "behind ... the concrete barriers" and on the shoulders of the freeway. Defendant drove as though he was going to exit the freeway but made a late turn down the embankment back onto the freeway. He continued southbound on the freeway, "swerving between vehicles" on the freeway. Defendant again drove toward a freeway exit and, after driving toward the westbound exit, "climbed a steep dirt embankment and then began to travel the wrong way," eastbound on the street.

During the pursuit thus far, Patty had been reporting the pursuit to other officers via his patrol vehicle's radio. When defendant climbed the embankment, Patty ceased the pursuit because "[i]t was dangerous. [He] was scared the driver was going to kill someone." Approximately one minute later, Patty was informed that Bakersfield Police Officer Nickolas Brackett had located the truck and Patty attempted to rejoin the pursuit. Brackett had been preparing to use spike strips to stop the truck when he saw the truck driving eastbound in the westbound off-ramp to the freeway. He saw that defendant was the driver. Defendant continued to flee, driving against the direction of traffic as Brackett pursued. Brackett activated his red and blue lights and siren, but defendant did not yield. Defendant fled through a dirt field and "did several donuts . . . to kick up dirt and debris," at which point Brackett lost sight of him. Brackett rejoined the pursuit not long after when other officers advised him of the location of the truck. He saw defendant drive through a chain link fence and into a church parking lot.

Approximately 10 minutes after Patty had ceased pursuit, Patty and Jordan joined other officers where they found the truck parked, without any inhabitant, behind the church. Three fences were knocked down in the area where the truck was found. The officers formed a perimeter and began searching the surrounding neighborhood. More than five minutes but fewer than 30 minutes later, defendant was located near a pile of rubble in the front yard of a neighboring residential property, approximately 500 yards from the truck. Jordan found drug paraphernalia, specifically, a glass smoking pipe usually used for smoking methamphetamine or base cocaine, in defendant's right front pocket. Defendant also possessed gloves and a ski mask. Gloves and facial coverings are often possessed by thieves to protect their identities when committing offenses.

Patty looked at the interior of the truck and noticed that the ignition was damaged such that the truck could be started without a key. He did not locate any key in or near the truck. He also ran a records check on defendant's driver's license and found that his license was suspended.

When Patty called his report into dispatch during the pursuit, he described defendant as a White or Hispanic male with long hair, wearing a blue baseball cap. He acknowledged that defendant looked at trial much the same as he did on the date of the offense. He acknowledged further that defendant had a shaved head and did not have long hair.

DISCUSSION

I. Senate Bill 567

Defendant contends that we must vacate the sentence and remand the matter because he did not admit, and the jury did not find true, the facts underlying the circumstances in aggravation that the trial court relied upon in imposing the upper term. The People agree that Senate Bill 567 is retroactive to defendant but argue any error in imposition of the upper term is harmless beyond a reasonable doubt. We agree that any error in imposing the upper term was harmless because a jury would have found true the aggravating circumstances beyond a reasonable doubt.

As we explain below, to find that any error was harmless we would have to conclude (1)(a) beyond a reasonable doubt that the jury would have found beyond a reasonable doubt that the facts underlying at least one aggravating circumstance was true,^[3] and (1)(b) that there is no reasonable probability the jury would not have found the remaining circumstances true beyond a reasonable doubt, or if fewer than all circumstances are provable pursuant to part (1)(b) of this analysis, (2) that there is no reasonable probability the trial court would have imposed a lesser term based on the aggravating circumstances that would have been provable to the jury beyond a reasonable doubt.

For the following reasons, we conclude the sentence does not comply with the requirements of section 1170, subdivision (b), but any error was harmless.

A. Additional Background

The trial court read and adopted the probation officer's recommendation regarding the following four...