Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. Thomas N. Douglass, Jr., Judge. Affirmed as modified.
Rex Williams, 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, Senior Assistant Attorney General, and Jeffrey J. Koch, Supervising Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RICHLI Acting P. J.
Defendant and appellant Samuel Rodriguez Figueroa pled guilty to (1) two counts of felony assault on a peace officer by means of force likely to produce great bodily injury and with a dangerous and/or deadly weapon, a vehicle (Pen. Code, § 245, subd. (c)); (2) felony evading a peace officer (Veh. Code, § 2800.2); (3) misdemeanor driving under the influence of alcohol (Veh. Code, § 23152, subd. (a)); (4) misdemeanor driving with a blood-alcohol level of 0.08 percent or more (Veh. Code, § 23152, subd. (b)); and (5) misdemeanor driving with a suspended license (Veh. Code, § 14601.1, subd. (a)). The trial court sentenced defendant to a total term of three years in state prison.
On appeal, defendant contends that the trial court erred in denying probation because this was a case of unusual circumstances. We disagree. Defendant also contends that one of his sentences for driving under the influence of alcohol or driving with a blood-alcohol level of 0.08 percent or more must be stayed under Penal Code section 654. We agree.
I
Since defendant pled guilty, the facts are taken from the probation report.
On September 10, 2006, at approximately 2:20 a.m., Officers Collins and Cain of the California Highway Patrol (CHP) stopped Maria Figueroa, defendant’s wife, for driving in excess of 80 miles per hour. The officers determined that Mrs. Figueroa was driving under the influence of alcohol, arrested her, and placed her in the front seat of the patrol car.
Jesus Figueroa, a nephew of defendant, was driving home at the same time and saw that Mrs. Figueroa was being arrested. When Jesus arrived home, he told his mother and defendant what had happened. Defendant became enraged that Mrs. Figueroa had been arrested. Thereafter, Jesus and his mother returned to the arrest scene so one of them could drive Martin Cisneros, Mrs. Figueroa’s passenger, to his home, and the other could drive Mrs. Figueroa’s truck to their home. The two of them waited as the officers finished the investigation and related paperwork.
In the interim, defendant arrived at the scene in his GMC truck and stopped inches from the patrol car and officers. Officer Collins tried to talk to defendant; defendant appeared very intoxicated. Defendant then backed up his truck as Officer Collins yelled at defendant to stop. Defendant next pulled the truck in front of the patrol car and rammed the truck’s rear bumper into the front of the patrol car, pushing it about two and one-half feet down the embankment on the side of the road. Defendant then drove away.
As Officer Collins advised dispatch that the patrol car had been struck, he and Officer Cain saw defendant make a U-turn and accelerate toward them at an estimated speed of 60 miles per hour. Defendant came very close to sideswiping the patrol car. Once defendant passed them, Officer Collins quickly removed Mrs. Figueroa from the patrol car as she was still sitting in the front seat of the car. At this point, defendant made another U-turn and drove back. This time, defendant put the front of his truck against the patrol car’s rear bumper. In response, the officers drew their weapons. As the officers watched, defendant again rammed and then pushed the patrol car another couple of feet down the embankment. Defendant again accelerated away, made yet another U-turn and again rammed the patrol car, again pushing it further down the embankment.
When more CHP officers finally arrived, defendant fled the scene with CHP officers in pursuit. Reaching speeds in excess of 70 miles per hour, defendant drove through a red light and three stop signs. The pursuit ended when defendant eventually drove home.
Blood tests disclosed that defendant’s blood-alcohol level was 0.23 percent, almost three times the legal limit. When questioned later, defendant told the officers that it was his duty as Mrs. Figueroa’s husband to protect her at all costs. Defendant also repeatedly denied driving the truck. Instead, defendant insisted that the truck had been driven by Martin Cisneros.
II
ANALYSIS
A. Denial of Probation
Defendant contends that the trial court “abused its discretion in denying probation because this was a case of unusual circumstances warranting a grant of probation.” The court found defendant’s case did not fall within the unusual case exception to the statutory presumption that defendant was ineligible for probation based on his use of a deadly weapon. (Pen. Code, § 1203, subd. (e)(2); Calif. Rules of Court, rule 4.413.)
In this case, defendant pled guilty to two counts of assault on a peace officer by means of force likely to produce great bodily injury and with a dangerous and/or deadly weapon, a vehicle. (Pen. Code, § 245, subd. (c).) Under Penal Code section 1203, subdivision (e)(2), a grant of probation is prohibited in cases where a deadly weapon is used “except in unusual cases where the interests of justice would best be served if the person is granted probation.”
This court applies the abuse of discretion standard in reviewing a trial court’s finding that a case may or may not be unusual. (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831.) Defendant has the burden of clearly showing that the sentencing decision was irrational or arbitrary. (Ibid.) “In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review. [Citations.]” (Ibid.)
Here, based on the record presented, the trial court did not abuse its discretion in finding that the statutory conditions for probation were not satisfied. The record shows that the trial court appropriately exercised its discretion after reviewing the probation officer’s report, statement in mitigation and supplemental statement in mitigation filed by defendant’s attorney; considering defendant’s, his family’s and friends’ statements; and listening to argument. There was substantial evidence defendant threatened the officers and his own wife by repeatedly ramming a patrol car down an embankment with defendant’s full-sized truck. The trial court, in sentencing defendant, stated:
“[W]hile I feel very sorry for [defendant] and frankly sorrier for his family, initially my primary concern has to be for the safety of society. . . . I just cannot get around the fact that [defendant] volitionally rammed a police car not once and not twice but three times, one of which such times his wife was sitting in the car, the very person he purportedly was trying to protect, could have been injured if not killed by [defendant’s] actions. Society needs to be protected and I simply cannot allow [defendant] to enter a program—it’s exceedingly commendable on his behalf that he wants to go into Victory Outreach, that he’s addressed his alcohol addiction problems through A.A. [¶] But it is because of all those factors that I am willing to accept a low term on one count rather than a mid or upper term with consecutive sentencing. This frankly is an outrageous crime. He’s got a lot [of] good going for him that serves him well. That is what reduces the matter to [a] low term. But I need to protect society and I need to impose the state prison commitment.” (Italics added.)
Denying probation was appropriate under these circumstances. Unusual circumstances did not militate otherwise. (People v. Lesnick (1987) 189 Cal.App.3d 637, 644.)
Nevertheless, defendant contends that his case was unusual “because although the limiting fact of personal use of a deadly weapon technically was present, the fact was less serious than typical assault with a deadly weapon and [defendant] has no prior record of similar crimes or crimes of violence. This was not a case where [defendant] used a firearm, or a knife, or any object designed for use as a weapon or typically used as a weapon.”
“As used in [Penal Code] section 245, subdivision (a)(1), a ‘deadly weapon’ is ‘any object, instrument, or weapon which is used in such a manner as to be capable of producing and likely to produce, death or great bodily injury.’ [Citation.] Some few objects, such as dirks and blackjacks, have been held to be deadly weapons as a matter of law; the ordinary use for which they are designed establishes their character as such. [Citations.] Other objects, while not deadly per se, may be used, under certain circumstances, in a manner likely to produce death or great bodily injury.” (People v. Aguilar (1997) 16 Cal.4th 1023, 1028-1029.) If an object is not deadly per se, the trier of fact may determine the object is used as a deadly weapon by considering “the nature of the object, the manner in which it is used, and all other facts relevant to the issue. [Citations.]” (Id. at p. 1029.) An automobile, under the circumstances, can constitute a deadly weapon under Penal Code section 245, subdivision (a)(1). (See, e.g., People v. Wright (2002) 100 Cal.App.4th 703, 705 [pickup truck constituted a deadly weapon when intentionally driven at two people]; People v. Claborn (1964) 224 Cal.App.2d 38, 42 [car found to be a deadly weapon when driven directly at a parked police vehicle].) Therefore, we reject defendant’s argument that his truck was not a deadly weapon.
In People v. Claborn, supra, 224 Cal.App.2d 38, defendant, during a police pursuit, drove his vehicle directly at an officer’s parked car. (Id. at p. 41.) With less than 75 feet separating the two vehicles, defendant made a last-ditch effort to avoid hitting the officer’s vehicle. However, defendant slid into the vehicle. (Ibid.) The jury found defendant guilty of using his vehicle as a deadly weapon under Penal Code section 245, and the ruling was upheld on appeal as to the sufficiency of the evidence. (People v. Claborn, supra, at pp. 42, 45.)
Moreover, it is well settled that a guilty plea admits every element of a charged offense as well as the factual basis of the crimes admitted. (In re Chavez (2003) 30 Cal.4th 643, 649.) Thus, a guilty plea waives any right to raise questions about the evidence, including its sufficiency. (People v. Turner (1985) 171 Cal.App.3d 116, 125-126 [a guilty plea “concedes that the prosecution possesses legally admissible evidence sufficient to prove defendant’s guilt beyond a reasonable doubt”]; People v. Guerrero (1993) 19 Cal.App.4th 401, 408-409 [guilty plea admits all facts and elements as charged].) Therefore, by pleading guilty, defendant has admitted that he used his vehicle as a deadly weapon.
In short and simply put, defendant has failed to demonstrate that the trial court abused its discretion by finding that this was not an unusual case in which the interests of justice would be furthered if defendant were granted probation.
Defendant contends that the trial court’s imposition of separate, unstayed six-month jail sentences in counts 4 and 5 for the misdemeanor convictions related to his drunk driving violated Penal Code section 654. Therefore, defendant contends that the sentence for either count 4 or 5 be stayed as required under Penal Code section 654.
Defendant mistakenly referred to count 6 instead of count 4. In count 4 and count 5, defendant admitted to driving under the influence and driving with a blood-alcohol level of or exceeding 0.08 percent, respectively. In count 6, defendant admitted driving with a suspended license.
Penal Code section 654 prohibits multiple punishment for crimes arising from a single act or indivisible course of conduct. If all of the crimes were merely incidental to, or were the means of accomplishing or facilitating one objective, a defendant may be punished only once. (People v. Latimer (1993) 5 Cal.4th 1203, 1208.)
Here, defendant pled guilty to misdemeanor driving under the influence of alcohol in count 4, and misdemeanor driving with a blood-alcohol level of 0.08 percent or more in count 5. At sentencing, the trial court imposed concurrent, unstayed six-month jail sentences for counts 4 and 5. However, counts 4 and 5 arose from a single act. Defendant’s admission of both driving under the influence and driving with a blood-alcohol level of 0.08 percent or greater was based on a single act of driving. Therefore, count 4 or count 5 must be stayed under Penal Code section 654. (People v. Martinez (2007) 156 Cal.App.4th 851, 857.)
The appropriate appellate remedy is to stay execution of the sentence on the less serious count, defined as the count that carries the shorter potential term of imprisonment. (People v. Norrell (1996) 13 Cal.4th 1, 8-9; In re Wright (1967) 65 Cal.2d 650, 655, fn. 4; see also Pen. Code, § 654, subd. (a).) Here, however, the same sentencing range applies to both counts. (See Veh. Code, § 23536, et seq.) Thus, we are free to stay the sentence on either count. Hence, we choose to stay the sentence in count 4, misdemeanor driving under the influence of alcohol.
III
DISPOSITION
The judgment is modified to order that the execution of the sentence on count 4, for misdemeanor driving under the influence of alcohol, is stayed pursuant to Penal Code section 654. The trial court is directed to prepare a new abstract of judgment as to reflect the modified sentence and to forward the abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: GAUT J., MILLER J.