Opinion
D075816
06-30-2020
THE PEOPLE, Plaintiff and Respondent, v. DARNEIL KEY, Defendant and Appellant.
Gregory L. Cannon, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Charles C. Ragland and Heather B. Arambarri, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD278509) APPEAL from a judgment of the Superior Court of San Diego County, Joan P. Weber, Judge. Affirmed in part, reversed in part, and remanded for resentencing with directions. Gregory L. Cannon, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Charles C. Ragland and Heather B. Arambarri, Deputy Attorneys General, for Plaintiff and Respondent.
After Darneil Key robbed an electronics store and a Walmart and then led police on a high-speed chase, a jury convicted him of seven charges: two counts of robbery (Pen. Code, § 211, count 1 and count 7), evading a police officer with reckless driving (Veh. Code, § 2800.2, subd. (a), count 2), driving in the opposite lanes while evading a pursuing peace officer (Veh. Code, § 2800.4, count 3), resisting an officer (Pen. Code, § 148, subd. (a)(1), count 4), carrying a concealed weapon on his person (Pen. Code, § 25400, subd. (a)(2), count 5), and carrying a concealed weapon in a vehicle (Pen. Code, § 25400, subd. (a)(1), count 6). The jury found true the allegation that Key was armed with a firearm in connection with counts 1, 2, and 3 (Pen. Code, § 12022, subd. (a)(1)), and the allegation that Key personally used a firearm in connection with count 1 (Pen. Code, § 12022.5, subd. (a)). The trial court sentenced Key to a total term of eight years in prison.
Unless otherwise specified, statutory references are to the Penal Code.
Key raises three issues on appeal, contending: (1) the trial court erred when it imposed on count 1 both a three-year sentence enhancement for the allegation Key personally used a firearm in the commission of the robbery (§ 12022.5, subd. (a)) and an additional one-year sentence enhancement for the allegation he was armed with a firearm during the commission of the robbery (§ 12022, subd. (a)(1)); (2) section 654 precludes separate punishment on counts 2 and 4 through 6; and (3) the abstract of judgment requires correction because it reflects imposition of a restitution fine and parole revocation fine that were not pronounced at sentencing.
We agree the trial court erred when it imposed sentences on both firearm enhancements and further agree the abstract of judgment requires correction. Key's remaining contentions either lack merit or are moot. We reverse the judgment in part, remand for resentencing, and direct the trial court to correct the abstract of judgment. In all other respects, the judgment is affirmed.
FACTS
On July 29, 2018, Key, his wife, an 18-year-old, and a minor entered Fry's electronics store carrying an empty Fry's shopping bag. Loss prevention officers were suspicious of them and observed their actions through surveillance cameras. Loss prevention officers observed Key "messing with" and adjusting his waistband; he appeared to have something in it. The group collected merchandise from the store. Key placed a pair of headphones in his pants pocket. One of his companions concealed merchandise in an empty shopping bag. The group paid for some merchandise and then exited the store with both the paid and unpaid merchandise. The assistant store manager asked if they were going to pay for the unpaid merchandise, followed the group outside, and repeatedly asked to see the receipt. Key did not respond initially but then turned to face the manager, put his hand toward the front of his waistband, and lifted his sweater. The manager thought Key was reaching for a weapon and, in fear for his life, stopped pursuing the group and returned to the store. The group drove away in a silver Hyundai; a record check of the license plate revealed the car was registered to Key. Store employees called 911.
About a month later, Key, his wife, and a minor were part of a group seen entering a Walmart. Loss prevention officers observed some members of the group on surveillance cameras stuffing merchandise into empty Walmart shopping bags. Key and his wife pushed a shopping cart to the self-checkout area and paid for some, but not all, of the merchandise. Some women from the group pushed a shopping cart with merchandise to the garden department and concealed the rest of the merchandise in shopping bags. Some members of the group headed toward the exit and attempted to exit the store with paid and unpaid merchandise. A security guard confronted one of the women at the exit. The security guard asked her to return to the store to discuss the unpaid merchandise, and, when she refused, asked her to leave the unpaid merchandise. Key approached them and told the security guard, " 'Stand the fuck back, or I'm going to fucking get you. You don't know who you're fucking with.' " Key lifted his shirt to show the security guard his gun and told him to stay away. Key's demeanor was aggressive. The security guard was afraid and stopped pursuing the woman.
The security guard called 911 and watched the group get into a Honda. Key's wife was driving, but at a stop sign at the parking lot exit, she exited the vehicle, and Key got into the driver's seat and exited the parking lot. During the 911 call, the security guard described Key leaving the scene in a silver Honda. After exiting the vehicle, Key's wife walked closer to the store, apparently waiting for the last member of the group, a 13-year-old girl.
Responding officers encountered Key's wife and the youth walking in the center median of the main road near the Walmart. The youth became "assaultive" with the officers, prompting them to place her into the backseat of the police vehicle. As the officers questioned Key's wife, they saw Key drive by in the Honda, stopping on the road to observe them and "causing a hazard." Officers were not yet aware Key was a suspect in the robbery. As the officers told him to "[k]eep going," he told them, "Hey, let her go man. [¶] . . . [¶] That's my wife, dude . . . ." Key then approached on foot. He told the officers the woman was his wife and the youth was his sister. The officer told him the women had been with a group involved in a robbery but were not suspects; however, the minor had been assaultive during the detention and might have to go to juvenile detention. Key returned to his car, which was in the parking lot. Officers thought they saw another male occupant in the vehicle. Officers moved from the road to the parking lot, where they released the youth to her mother.
Meanwhile, one of the officers entered the Walmart, spoke to the security guard, and watched the surveillance footage. The officer realized that Key was a suspect in the robbery. He radioed the officers still in the parking lot and directed them to detain Key so they could investigate further.
Three officers approached Key, who was seated in the driver's seat of the Honda. One called out, " 'We need to talk to you.' " Key made eye contact with the officers, muttered something under his breath, and fled the area in his vehicle. Two officers got into their patrol car and pursued him.
Key then led officers on a high-speed chase on freeways and through local neighborhoods. A helicopter from the San Diego Police Department Air Support Unit was called to assist by tracking Key's vehicle during the pursuit. A K-9 unit joined the pursuit. During the pursuit, Key ran red lights, traveled on the wrong side of the road, and traveled at speeds well over applicable speed limits. The pursuit lasted about 20 minutes. Key ultimately stopped on a freeway, exited the vehicle, and attempted to flee on foot. The K-9 deputy directed Key to stop and warned he would deploy the dog. Key continued to flee; he ran down one embankment and continued up the other side. The K-9 deputy deployed the dog, and the dog finally apprehended him. The K-9 deputy directed Key to roll onto his stomach, but Key refused to comply. Key continued to punch and kick at the dog until two other officers arrived and were able to move him onto his stomach.
On the freeway, Key's speed exceeded 100 miles per hour; on surface streets, he reached speeds of 60 miles per hour.
Another man—the registered owner of the vehicle—was present in the vehicle's passenger seat. A search of the vehicle revealed a backpack containing Key's credit cards and a loaded .40-caliber semiautomatic firearm registered to Key. The firearm was loaded with live rounds, and the slide was forward, indicating the weapon was ready to be fired. Key's DNA was found on the firearm.
Key did not have a permit to carry the weapon concealed.
An information charged Key with two counts of robbery (Pen. Code, § 211, count 1 [Walmart] and count 7 [Fry's]), evading a police officer with reckless driving (Veh. Code, § 2800.2, subd. (a), count 2), driving in the opposite lanes while evading a pursuing peace officer (Veh. Code, § 2800.4, count 3), resisting an officer (Pen. Code, § 148, subd. (a)(1), count 4), carrying a concealed weapon on his person (Pen. Code, § 25400, subd. (a)(2), count 5), and carrying a concealed weapon in a vehicle (Pen. Code, § 25400, subd. (a)(1), count 6). The information alleged that Key was armed with a firearm in connection with counts 1, 2, and 3 (Pen. Code, § 12022, subd. (a)(1)), and further alleged that Key personally used a firearm in connection with count 1 (Pen. Code, § 12022.5, subd. (a)).
After trial, a jury found Key guilty on all counts and found the allegations to be true.
At the sentencing hearing, the trial court agreed with the probation department's assessment that Key was not a candidate for probation; however, the court noted its intention to give "the lowest possible prison term." The court declined to impose the $3,600 restitution fine recommended by probation, indicating it "should be lower . . . because the court is imposing significantly less time than recommended by probation," and indicated it would "get the recalculation of the restitution fine." The court did not pronounce imposition of a restitution fine or a parole revocation fine at sentencing. The trial court sentenced Key to a total term of eight years in prison, comprised of the low term of two years on count 1, plus one year on the allegation he was armed with a firearm (§ 12022, subd. (a)(1)), plus the low term of three years on the personal use of a firearm allegation (§ 12022.5, subd. (a)), for a total of six years on count 1; a consecutive eight-month term plus four months for the allegation he was armed with a firearm on count 2 (§ 12022, subd. (a)(1)), for a total term of one year on count 2; plus an additional consecutive one-year term on count 7. The trial court imposed but stayed a sentence on count 3. (§ 654.) The trial court imposed concurrent terms of 37 days each for counts 4 through 6, and awarded Key 37 days credit for time served.
DISCUSSION
I.
Unauthorized Imposition of Second Firearm Enhancement
As noted, the trial court imposed a three-year enhancement for the allegation that Key personally used a firearm in the commission of the robbery (§ 12022.5, subd. (a)) and an additional one-year enhancement for the allegation he was armed with a firearm during the commission of the robbery (§ 12022, subd. (a)(1)). Key contends—and the Attorney General concedes—this was error. We agree. "When two or more enhancements may be imposed for being armed with or using a dangerous or deadly weapon or a firearm in the commission of a single offense, only the greatest of those enhancements shall be imposed for that offense." (§ 1170.1, subd. (f).) Thus, rather than punishing Key under two different sentence enhancement provisions, imposition of " 'only the greatest of those enhancements' " was required. (People v. Rodriguez (2009) 47 Cal.4th 501, 509.) Key contends the one-year enhancement should be stricken. "The proper remedy, however, [is] not to strike the punishment under section [12022] but to reverse the trial court's judgment and remand the matter for resentencing. [Citation] Remand will give the trial court an opportunity to restructure its sentencing choices in light of our conclusion that the sentence imposed here violated section 1170.1's subdivision (f)." (Ibid.)
II.
Section 654Key contends the sentences imposed on counts 2 and 4 through 6 must be stricken because those offenses were committed during his attempt to flee from the Walmart robbery, and thus separate punishment is barred by section 654. We conclude Key's argument with respect to count 2 (evading a police officer with reckless driving) lacks merit, and his claim regarding counts 4 through 6 (various misdemeanor counts) is moot.
Key may raise this challenge on appeal, despite having failed to object at the time of sentencing, because a sentence imposed in violation of section 654 is an unauthorized sentence. (People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17.)
Section 654, subdivision (a) provides that "[a]n 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 purpose of the statute is to ensure that punishment is commensurate with culpability. (People v. Latimer (1993) 5 Cal.4th 1203, 1211.) "Section 654 precludes multiple punishments for a single act or indivisible course of conduct." (People v. Hester (2000) 22 Cal.4th 290, 294; accord, People v. Corpening (2016) 2 Cal.5th 307, 311-312 [section 654 applies when both offenses were completed by a single physical act, or when a course of conduct reflects a single intent and objective].) Whether a course of criminal conduct is divisible depends on the intent and objective of the actor. (People v. Capistrano (2014) 59 Cal.4th 830, 885, overruled on other grounds in People v. Hardy (2018) 5 Cal.5th 56, 104.) "Where a defendant entertains multiple criminal objectives independent of and not merely incidental to each other, he may be punished for more than one crime even though the violations share common acts or are parts of an otherwise indivisible course of conduct." (People v. Blake (1998) 68 Cal.App.4th 509, 512.)
"But even if a course of conduct is 'directed to one objective,' it may 'give rise to multiple violations and punishment' if it is 'divisible in time.' [Citation.] '[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." ' " (People v. Jimenez (2019) 32 Cal.App.5th 409, 424 (Jimenez).)
Whether a defendant had multiple intents or objectives in committing multiple crimes is generally a question of fact for the sentencing court. (People v. Coleman (1989) 48 Cal.3d 112, 162.) When the trial court sentences a defendant to separate terms without making express findings, it is deemed to have made an implied finding that each offense had a separate objective, and on appeal we determine whether there was substantial evidence to support the trial court's finding. (People v. Islas (2012) 210 Cal.App.4th 116, 129; People v. Deegan (2016) 247 Cal.App.4th 532, 545, fn. 4.) "In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the [court] could reasonably have deduced from the evidence." (People v. Zamudio (2008) 43 Cal.4th 327, 357 (Zamudio).)
Here, the trial court sentenced Key to separate terms on count 1 (robbery of the Walmart, Pen. Code, § 211) and count 2 (evading an officer with reckless driving, Veh. Code, § 2800.2, subd. (a)), impliedly finding Key harbored separate objectives when committing these crimes. We conclude substantial evidence supports this implied finding. The trial court could have reasonably found the objective of the robbery was to obtain merchandise from the store without paying for it, while the objective of the evading arrest with reckless driving was to avoid being caught by the police. (See People v. Rodriguez (2015) 235 Cal.App.4th 1000, 1006 (Rodriguez) [finding substantial evidence to support trial court's finding of distinct objectives in committing a robbery and then evading police].)
In an attempt to invoke section 654, Key relies on the close proximity between the store where the robbery occurred and the median where the police first encountered the two females, and the principle that robbery is a "continuing offense that begins from the time of the original taking until the robber reaches a place of relative safety." (People v. Anderson (2011) 51 Cal.4th 989, 994.) Key contends "it is eminently reasonable to infer both that appellant and his confederates were in the early stages of effecting their escape from the scene of the robbery and that they had not yet reached a point of relative safety when [the police officer] encountered the females and appellant."
Key's arguments are not persuasive. First, contrary to Key's suggestion, we construe reasonable inferences in favor of the judgment (Zamudio, supra, 43 Cal.4th at p. 357), not in Key's favor. Second, the fact that two "confederates" were detained in close proximity to the scene of the robbery is immaterial where, as here, the defendant was traveling in a separate vehicle and was no longer with the detained suspects. Third, "the fact certain acts are proximate in time is not [determinative] in finding an indivisible course of conduct. Multiple criminal objectives may divide those acts occurring closely together in time." (People v. Bradley (1993) 15 Cal.App.4th 1144, 1157, disapproved on other grounds in People v. Rayford (1994) 9 Cal.4th 1, 7.) Finally, even assuming the robbery was still in progress when Key voluntarily approached the officers, this too is not determinative of whether section 654 applies. This court rejected the same argument in Rodriguez, which involved a bank robbery followed by evasion of the police. In that case, like here, the defendant contended that section 654 applied because the robbery was not complete—and he had not reached a place of safety—when he evaded the officers. (Rodriguez, supra, 235 Cal.App.4th at p. 1007.) This court held that "whether an evading arrest crime occurred during the commission of a robbery is not determinative of whether section 654 applies. That is because it is well established that a defendant may harbor 'separate and simultaneous intents' in committing two or more crimes, for purposes of section 654." (Ibid.) We thus held substantial evidence supported the trial court's finding that the defendant harbored separate objectives, and the court did not err by not staying execution of the defendant's evading arrest sentence under section 654. (Id. at pp. 1006-1008.) The same analysis applies here, and we reach the same conclusion: substantial evidence supports the trial court's implied finding that Key's objective in committing the robbery was distinct from his objective in subsequently initiating contact with the police, then fleeing and evading the police during a 20-minute high-speed chase.
Alternatively, even assuming Key had only one objective of completing the robbery, the trial court could reasonably have found the offenses were temporally separated in such a way as to afford Key an opportunity to reflect and renew his intent. (Jimenez, supra, 32 Cal.App.5th at p. 424; People v. Lopez (2011) 198 Cal.App.4th 698, 717-718.) After robbing the Walmart, Key drove his car away from the Walmart parking lot. Shortly thereafter, he decided to initiate contact with an officer detaining his wife and sister in the center median near Walmart. He parked his car and returned on foot, and then went back to his vehicle and waited around, all after the police initially told him to "[k]eep going." It was only later—after an officer reviewed surveillance footage and other officers approached Key to question him at a different location (a parking lot)—that Key fled to evade arrest. Even though Key acknowledges there is no record of how much time passed before Key first initiated contact with the police, he nonetheless contends the temporal and physical separation was not sufficient here and Key "did not have enough time to reach a place of safety." We have already rejected this argument because reaching a place of safety following a robbery is not the issue in determining whether section 654 applies. (Rodriguez, supra, 235 Cal.App.4th at p. 1007.) Moreover, construing the evidence in the light most favorable to the prosecution (Zamudio, supra, 43 Cal.4th at p. 357), the trial court could have reasonably concluded the separation of time during which Key returned to the scene and waited in the parking lot afforded him ample opportunity to reflect before electing to commit the second offense of evasion. (See Lopez, at p. 717 [" 'multiple crimes are not one transaction where the defendant had a chance to reflect between offenses and each offense created a new risk of harm' "]; People v. Trotter (1992) 7 Cal.App.4th 363, 368 [one minute between defendant's gunshots was enough time for reflection and "evinced a separate intent to do violence"]; see also People v. Harrison (1989) 48 Cal.3d 321, 338 [defendant should "not be rewarded where, instead of taking advantage of an opportunity to walk away from the victim, he voluntarily resumed his sexually assaultive behavior"].)
Key further contends that even if we disagree his attempt to flee was part of a continuous course of conduct with the robbery, misdemeanor counts 4 through 6 must be stayed pursuant to section 654. He contends count 4 (resisting an officer, § 148, subd. (a)(1)) "clearly was part of and effected with the same intent as the reckless evasion charged in counts [2] and [3]," count 5 (carrying a concealed weapon, § 25400, subd. (a)(2)) was "for the purpose of committing a theft at the Walmart, which was charged as a robbery [count 1]," and count 6 (carrying a concealed firearm in a vehicle, § 25400, subd. (a)(1)) was a continuation of his possession and use of a firearm in the commission of the Walmart robbery (charged as enhancements to count 1, §§ 12022, subd. (a)(1), 12022.5, subd. (a)). The Attorney General does not address the merits of this claim but instead contends the issue is moot. On this record, we agree with the Attorney General.
"When confronted with offenses within the purview of section 654, the proper procedure is to stay execution of sentence on all but one of the offenses subject to this section." (People v. Pena (1992) 7 Cal.App.4th 1294, 1312.) "Section 654 does not allow any multiple punishment, including either concurrent or consecutive sentences." (People v. Deloza (1998) 18 Cal.4th 585, 592.) "Where multiple punishment has been improperly imposed, '. . . the proper procedure is for the reviewing court to modify the sentence to stay imposition of the lesser term.' " (People v. Butler (1996) 43 Cal.App.4th 1224, 1248.) Here, the trial court sentenced Key to concurrent 37-day terms for each of the three misdemeanor convictions at issue, and he already received credit for time served. Key asks this court to stay the sentences on the three misdemeanor counts, but staying those 37-day terms would have no effect on defendant's custodial time and he points to no other disadvantageous collateral consequences relating to fees or credits (or otherwise). As a result, no effective relief can be granted (People v. DeLeon (2017) 3 Cal.5th 640, 645) and Key's challenge regarding the misdemeanor counts is moot.
Citing People v. Crowder (2000) 79 Cal.App.4th 1365, 1370-1371, the Attorney General also contends section 654 may be satisfied "by sentencing on the felony offense and granting credit for time served on the misdemeanor charge." We are not presented with the same situation as Crowder, and cases cited in that opinion, where a court sentences a defendant on felony and misdemeanor counts at different times or in different proceedings. We also are not faced with a concern, as in Crowder, that a defendant may be attempting to "avoid sentencing on serious offenses through manipulation of the judicial processes" (id. at p. 1371) by, for example, pleading to a misdemeanor and then invoking section 654 to avoid receiving a harsher sentence on a felony offense. We do not address whether Crowder applies here.
III.
Abstract of Judgment
Key contends the abstract of judgment must be corrected to comport with the oral pronouncement of judgment, which did not impose a restitution fine. We agree that the oral pronouncement of judgment controls. (People v. Mitchell (2001) 26 Cal.4th 181, 185-186.) At the sentencing hearing, the trial court declined to impose the $3,600 restitution fine recommended by probation, indicating it "should be lower . . . because the court is imposing significantly less time than recommended by probation," and indicated it would "get the recalculation of the restitution fine." Despite indicating it would "get the recalculation of the restitution fine," the court did not impose a restitution fine or a parole revocation fine at sentencing. However, the abstract of judgment and sentencing minutes reflect imposition of a $9,600 restitution fine (§ 1202.4, subd. (b)) and a $9,600 parole revocation fine (§ 1202.45)—significantly higher than the amount the court declined to impose because it felt it was already too high. We thus direct the court, on remand, to correct the abstract of judgment and the sentencing minutes to reflect that no restitution fine or parole revocation fine was imposed.
The Attorney General agrees the abstract of judgment must be corrected but contends it should reflect "the trial court's intended sentence." We reject this claim where, as here, the trial court in its oral pronouncement did not impose any restitution fines and the prosecutor did not object at sentencing. (See People v. Tillman (2000) 22 Cal.4th 300, 303 [People's failure to object to trial court's omission of restitution fine waives People's right to request amendment of judgment to add fines].)
DISPOSITION
The judgment is reversed in part, and the matter is remanded with directions that the trial court (1) sentence Key in accordance with Penal Code section 1170.1, subdivision (f), and (2) correct the abstract of judgment to reflect that no restitution fine or parole revocation fine was imposed. In all other respects, the judgment is affirmed.
GUERRERO, J. WE CONCUR: HALLER, Acting P. J. IRION, J.