Opinion
H045658
05-01-2020
THE PEOPLE, Plaintiff and Respondent, v. GABRIEL SABASTIAN RAMIREZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1765214)
Defendant Gabriel Sabastian Ramirez pleaded no contest to charges including reckless driving while evading a peace officer. He was later charged in a second case with three robberies that occurred about an hour before the driving charged in the first case. The trial court denied defendant's request to dismiss the robbery complaint under Penal Code section 654 and Kellett v. Superior Court (1966) 63 Cal.2d 822 (Kellett). Defendant accepted a negotiated disposition in the robbery case, obtained a certificate of probable cause, and appealed. He argues the trial court erred in not dismissing the robbery complaint under the Kellett rule because the robbery and evading offenses occurred at substantially the same time and location, and the evidence needed to prove the evading offense necessarily supplied proof of the robberies. Finding no error, we will affirm.
I. TRIAL COURT PROCEEDINGS
The following is based on testimony from defendant's preliminary hearing in the robbery case. The victim testified that he was living in the Berryessa neighborhood of San Jose in September 2016. As he was walking near his residence around 8:30 p.m., he noticed a white sedan parked facing him with its headlights on. The car had a yellow paper license plate with "DGDG" written on it. A relatively short, thin male wearing a black sweatshirt with the hood pulled up got out of the car and approached the victim while pointing a gun at him. When the person demanded the victim's wallet, the victim dropped his computer bag, his gym bag, a bag carrying takeout dinner, and his wallet. The person then loaded the items into the sedan and drove away.
A San Jose Police Department officer testified about a robbery reported the same night by two women. The women were standing next to one of their cars in a Santana Row parking lot around 9:00 p.m. when a white four-door car approached them. The rear passenger got out of the car and demanded the women's purses. The passenger was reportedly a young Hispanic male who was wearing a bandana over his nose and mouth. The man grabbed one of the woman's purses and got back into the car. The woman held onto the purse as the car started to drive away, and she was dragged a short distance before she let go of the purse. She suffered a broken bone in her foot from the incident.
A man employed as a dishwasher at a Chinese restaurant in Saratoga testified that the same night around 9:30 p.m. he noticed a white car with its headlights on in the restaurant's parking lot. As the man tried to get into his car, he heard a voice from behind him tell him to hand over his wallet or he would be shot. He turned around and saw a man about two feet away pointing a gun at him. The man with the gun was about 20 years old, appeared to be "Mexican," and was wearing a black sweatshirt with the hood up. The dishwasher gave the man $40 he had in his pocket and said: " 'I'm only the guy who wash[es] dishes. No money.' " The man with the gun fled in the car. A deputy sheriff who took a police report that night testified that the victim told him the car's license plate was "DGDVCUN."
Another deputy sheriff testified that he was on patrol in Saratoga the same night. He responded to the robbery of the dishwasher around 9:30 p.m., traveled to respond to an unrelated call, and then returned to the area near the Chinese restaurant around 10:30 p.m. As he was driving in that area he saw a white sedan with a "DGDG" paper license plate. The car attracted the deputy's attention because it matched the description of the car used in the robbery at the Chinese restaurant parking lot, and also because the car seemed old yet did not have a permanent license plate. The deputy caught up to the car and turned on his emergency lights and siren to make a traffic stop. The white car accelerated away and the deputy temporarily lost sight of it. The deputy caught up with the car after it apparently crashed into something; the right front tire was missing and the car had sustained significant body damage. The driver (defendant) and two juvenile occupants were arrested. Evidence linking the car to the robberies was recovered, including a black hooded sweatshirt and a receipt with the name of one of the Santana Row victims. Defendant admitted in a later interview that he was a registered owner of the white car and that he had been driving it the day of the robberies.
Defendant was charged in case No. C1646382 with reckless driving while evading a peace officer (Veh. Code, § 2800.2, subd. (a)), driving the wrong way in traffic while evading a peace officer (Veh. Code, § 2800.4), and hit and run causing property damage (Veh. Code, § 20002, subd. (a)). As part of a negotiated disposition, defendant pleaded no contest to those charges and was granted felony probation, which included nine months in custody.
Defendant was later held to answer and charged by felony information in the instant case No. C1765214 with three counts of second degree robbery. (Pen. Code, §§ 211, 212.5, subd. (c).) The count related to the Santana Row robbery included a special allegation that defendant inflicted great bodily injury. (Pen. Code, § 12022.7, subd. (a).) Defendant moved to dismiss the case, arguing that the Kellett rule barred the robbery prosecution. The trial court denied the motion after a hearing, reasoning that the robbery and evading arrest offenses occurred at different times and locations because the evading arrest offense occurred one hour after the last robbery. The court also reasoned that the evidence necessary to prove the offenses did not overlap: in an evading arrest trial "the reason for the stop would be sanitized" and the jury would be told simply that the officer was attempting to make a lawful traffic stop, and in a robbery trial the prosecution could prove the robberies occurred without discussing how defendant was eventually arrested.
As part of a negotiated disposition, defendant pleaded no contest to two counts of grand theft and one count of robbery. Defendant also admitted the great bodily injury allegation. Defendant received another grant of felony probation, including one year in custody which was deemed served.
II. DISCUSSION
"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," and a "conviction and sentence under any [provision of law] bars a prosecution for the same act or omission under any other." (Pen. Code, § 654, subd. (a).) In Kellett, the Supreme Court held that when the "prosecution is or should be aware of more than one offense in which the same act or course of conduct plays a significant part, all such offenses must be prosecuted in a single proceeding unless joinder is prohibited or severance permitted for good cause. Failure to unite all such offenses will result in a bar to subsequent prosecution of any offense omitted if the initial proceedings culminate in either acquittal or conviction and sentence." (Kellett, supra, 63 Cal.2d at p. 827.) Appellate courts have developed two tests to determine whether the Kellett rule will apply. Under one test, courts have found Kellett inapplicable where the offenses occurred at different times and locations. (People v. Valli (2010) 187 Cal.App.4th 786, 797 (Valli).) Under the other test, the Kellett rule will not apply unless the " 'evidence needed to prove one offense necessarily supplies proof of the other.' " (Valli, at p. 799.) We review factual determinations made by the trial court for substantial evidence, and we review de novo the legal question of whether Penal Code section 654 applies. (Id. at p. 794.)
Under either test, we find no error here. As the trial court noted, the robberies and defendant's attempt to evade arrest occurred at different times and in different locations. The last robbery occurred around 9:30 p.m. at the Chinese restaurant. By the time a deputy sheriff attempted a traffic stop in the general vicinity of the restaurant, one hour had elapsed. Alternatively, the overlap in evidence was minimal. The only overlapping evidence was that defendant was driving the same car in all the offenses. Evidence necessary to prove the robbery offenses did not supply proof of evading arrest. As the trial court reasoned, the prosecution could establish all elements necessary to convict defendant of the robberies without discussing the manner in which defendant was later arrested. And the prosecution could prove that defendant evaded arrest by showing that he fled in response to a lawful traffic stop. The lack of overlapping evidence distinguishes this case from People v. Ochoa (2016) 248 Cal.App.4th 15, relied on by defendant. (See People v. Ochoa, at pp. 19, 36-38 [evidence to support conviction for conspiracy to distribute methamphetamine overlapped substantially with evidence to support conviction for Ochoa's active gang participation because he acted as a middle man to obtain methamphetamine from suppliers and sell it to the street gang].)
Defendant contends his case is similar to Barriga v. Superior Court (2012) 206 Cal.App.4th 739 (Barriga). After receiving a report of a carjacking, a peace officer pulled over a car matching the description of the stolen vehicle. Barriga was one of the car's passengers. He was initially accused in a juvenile wardship petition of with resisting arrest and unlawfully taking or driving the car. Barriga was not accused in that case of carjacking because another passenger told the officer that Barriga had not participated in that activity. (Id. at p. 741.) After Barriga entered a plea agreement in the juvenile case in which he admitted resisting arrest, the police obtained a warrant, searched Barriga's cellular phone, and discovered text messages implicating him in the carjacking. Barriga was then charged in a new case with carjacking. (Id. at p. 742.)
On petition for writ of prohibition after Barriga unsuccessfully moved to dismiss the charge under Kellett, the appellate court stated there was "no dispute that ... Barriga's alleged participation in the robbery and carjacking and his later conduct in resisting the police when [the officer] stopped the stolen car were part of the same 'course of conduct.' " (Barriga, supra, 206 Cal.App.4th at p. 747.) But the court focused on whether the People should have been aware of the evidence incriminating Barriga for the carjacking when they charged him in the first case. Concluding that the People should have been aware of the incriminating evidence, the court granted the writ of prohibition. (Id. at p. 749.)
Barriga is distinguishable. First, it was apparently undisputed that the offenses were part of the same course of conduct, in contrast to the question presented here. (People v. Ault (2004) 33 Cal.4th 1250, 1268 fn. 10 ["It is axiomatic that cases are not authority for propositions not considered."].) Second, unlike the lack of overlapping evidence in defendant's robbery and evasion offenses, the evidence of the car theft count in Barriga's first prosecution would have significantly overlapped with the evidence necessary to prove the carjacking in the second prosecution.
Defendant argues his robbery and evading offenses occurred at the same time and location because defendant "had not reached a temporary place of safety from any of the earlier robberies." To the extent defendant contends he was being pursued for the entire hour between the robbery at the Chinese restaurant and when the sheriff's deputy saw the car driving in Saratoga, that assertion is unsupported by the record. The white car left the restaurant parking lot and was not followed. The deputy sheriff who stopped the car an hour later was not in pursuit during the intervening time. To the contrary, the deputy testified he responded to the robbery and then responded to an unrelated call before returning to the area near the restaurant and noticing defendant's car. An hour elapsing between the last robbery and the evading offense provides substantial evidence to support the trial court's finding that defendant had reached a place of temporary safety after the robbery. Further, in the related context of whether Penal Code section 654 prohibits multiple punishments for multiple offenses, courts have held that the "escape rule" application of the felony-murder doctrine in robbery cases does not apply. (People v. Rodriguez (2015) 235 Cal.App.4th 1000, 1007 (Rodriguez) ["Since determining whether [Penal Code] section 654 applies does not turn on whether 'an act occurred in the commission of a crime' ([Citation]), but rather, on whether a defendant entertained ' "multiple criminal objectives" ' ([Citation]), we agree with those courts that have refused to apply the escape rule in determining the applicability of [Penal Code] section 654."].)
Defendant argues the robbery prosecution should have been dismissed because his "intent in committing the evasion offenses was clearly to avoid apprehension for the robberies, which of course would permit him to keep the property taken in the robberies, which was in the car." That argument ignores the significant temporal separation between the robberies and the evasion. And the trial court's implicit factual finding that defendant had two distinct objectives in committing the robberies and later evading the police is consistent with case law applying Penal Code section 654. (See Rodriguez, supra, 235 Cal.App.4th at p. 1006 ["The trial court could have reasonably found that the objective of the robbery was to obtain money from the bank, while the objective of the evading arrest by reckless driving was to avoid being caught by the police."].)
III. DISPOSITION
The order granting probation is affirmed.
/s/_________
Grover, J.
WE CONCUR:
/s/_________
Elia, Acting P. J. /s/_________
Mihara, J.