Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA225497, Stephen A. Marcus, Judge.
Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette and Mary Jo Graves, Chief Assistant Attorneys General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and Adrian N. Tigmo, Deputy Attorneys General, for Plaintiff and Respondent.
TURNER, P. J.
I. INTRODUCTION
Defendant, Christian Horacio Villegas, was originally convicted of second degree murder and evading an officer with willful disregard for the safety of persons or property. (Pen. Code, § 187, subd. (a); Veh. Code, § 2800.2, subd. (a).) We affirmed defendant’s original convictions in an unpublished opinion. (People v. Villegas (Sept. 17, 2003, B163953) [nonpub. opn.].) However, on December 17, 2003, our Supreme Court granted defendant’s review petition. On June 8, 2005, our Supreme Court ordered us to reconsider the cause in light of its decision in People v. Howard (2005) 34 Cal.4th 1129, 1136-1139. In an unpublished opinion, we: reversed defendant’s second degree murder conviction; affirmed his conviction for felony evasion of a police officer; ordered defendant’s resentencing on the felony evading charge once the homicide issues were resolved; and remanded the matter to the trial court for further proceedings. (People v. Villegas (Aug. 29, 2005, B163953) [nonpub. opn.].) Defendant was retried and convicted of second degree murder, vehicular manslaughter with gross negligence, and leaving the scene of an accident. (§§ 187, subd. (a), 192, subd. (c)(1); Veh. Code, § 20001, subd. (a).) He appeals from his convictions after the retrial contending: his convictions violated his constitutional due process and double jeopardy rights; his convictions for vehicular manslaughter and leaving the scene of an accident are barred by the statute of limitations; his convictions and sentences for manslaughter and leaving the scene of an accident must be vacated pursuant to section 654, subdivision (a); and the trial court improperly imposed the upper term on his vehicular manslaughter conviction. We affirm the judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
II. FACTUAL BACKGROUND
We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Elliot (2005) 37 Cal.4th 453, 466; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) On December 11, 2001, Los Angeles Police Officers Ken Lew and Kathy McAnany were assigned to patrol the area of Staples Center in a black and white marked police car. Both officers were in uniform. There was a hockey game at Staples Center that evening, creating both automobile congestion and pedestrian traffic. At approximately 9 p.m., the officers were stopped at a red light at Venice and Flower Streets. After the light turned green, Officer McAnany proceeded into the intersection. However, Officer McAnany stopped suddenly as a white Chevrolet Tahoe truck drove through a red light into the intersection at a high rate of speed. Officer McAnany activated her overhead lights, used the siren to make “chirp” like sounds, and turned left to follow the Tahoe truck. The Tahoe truck drove underneath the freeway overpass and then continued through another red light, causing cross traffic to brake suddenly.
At the next intersection, Flower Street and Washington Boulevard, the Tahoe truck came to a stop and then swerved around a car which was stopped at a red light. Officer Lew was able to see the license plate of the Tahoe truck and entered it into the computer in the police car. The Tahoe truck moved to the right lane and proceeded through the red light. Several drivers of cross traffic were forced to brake to avoid a collision. At each intersection, Officer McAnany activated the siren continuously. The Tahoe truck then accelerated to a high rate of speed. Officer Lew broadcast over the police radio that they were in pursuit of the Tahoe truck. The Tahoe truck continued speeding with debris “kicking up from the rear” of the truck. The Tahoe truck then drove through a red light at 23rd Street without applying the brakes. The drivers of cars in cross traffic slammed on their brakes, causing smoke to come from their tires. Officer McAnany continued through the intersection with lights and siren activated. The patrol car was going approximately 60 to 65 miles per hour. The Tahoe truck appeared to be traveling 90 miles per hour.
As the Tahoe truck approached the intersection of Flower Street and Adams Boulevard, the light was red. The Tahoe truck did not brake. As the Tahoe truck entered the intersection at a high rate of speed, it struck a blue compact car being driven on Adams Boulevard. The officers saw the collision and heard a very loud noise. Both the car and the Tahoe truck went into the air. The blue car landed across the intersection. After the collision, the police car stopped behind the Tahoe truck. Defendant did not go to the aid of the individual trapped in the blue car. Defendant got out of the driver’s side and ran. Defendant’s passenger also jumped out and ran. Officer Lew got out of the police car and chased the two men. Both individuals turned around and looked at Officer Lew as they ran. They did not initially heed his order to stop. However, defendant and the passenger eventually stopped. Officer Lew detained them. Defendant drove rapidly throughout the entire pursuit, which lasted about two minutes.
Officer Lew prepared his report at the police station later that evening. Defendant and the passenger were in nearby holding tanks approximately 11 feet apart. Defendant and the other man were making eye contact, “smirking,” and “chuckling at each other.” The two men were laughing and defendant was smiling.
Norman Grundy, a Cal Trans employee, had been waiting for a stop signal in the southbound left lane of Flower Street at the corner of Adams Boulevard and Flower Street when he heard sirens and saw the reflection of flashing red lights. Mr. Grundy saw a sports utility vehicle approach his car from behind him. The sports utility vehicle passed Mr. Grundy on the left heading southbound in the northbound lane. The passing sports utility vehicle then struck a small car traveling on Adams Boulevard. The car came to rest with the driver’s side up against a concrete wall, where it hit hard. Mr. Grundy approached the small car, where a man, who later died, was pinned inside. Mr. Grundy saw the driver and passenger jump out of the sport utility vehicle and run. The two men did not go to the blue car to help the dying passenger. The police stopped immediately and ran after the men. The officers chased the individuals for approximately one block.
Los Angeles Police Officer Michael Jolicoeur, a member of the specialized collision investigation detail, investigated the incident. Officer Jolicoeur looked at the car and the Tahoe truck, the physical evidence at the scene, and tire marks and took measurements. Officer Jolicoeur concluded that the Tahoe struck the car’s rear driver’s side passenger door. The Tahoe pushed the door into the car. The door and the Tahoe then pushed the driver’s seat. The car then rotated, became airborne, hit a light pole, and collided with a cement wall on the driver’s side.
Los Angeles Police Detective Robert Cortez also participated in the investigation of the accident. He was present when defendant was interviewed in the early hours of December 12, 2001. The interview was tape recorded. Defendant stated he was aware that the police were behind him. Defendant acknowledged that he ran a red light at Venice Boulevard and Flower Street. Defendant saw the lights illuminated on the police car following him. Defendant did not stop because he was on probation, did not have a driver’s license, and did not want to go back to jail. Defendant had a condition of probation precluding association with the passenger in the Tahoe at the time of the accident. Defendant told Detective Matson, “‘I’m sorry for what I done [sic] to this person. [¶] . . . [¶] I wouldn’t – no right person would ever want to be – or want that to happen.’” Defendant said, “‘I’m sorry. You know, I messed up.’”
III. DISCUSSION
A. The Prosecution Did Not Violate Defendant’s Due Process And Double Jeopardy Rights
1. Defendant’s contentions
Defendant argues that his convictions for vehicular manslaughter and leaving the scene of an accident must be vacated because they violate his due process and double jeopardy rights. More specifically, defendant argues that he received a more severe punishment following retrial and the filing of a vehicular manslaughter charge amounted to vindictive prosecution. We disagree.
2. Factual and procedural background
Defendant was initially charged on March 21, 2002, with murder, vehicular manslaughter, and felony evading an officer. (§§ 187, subd. (a), 192, subd. (c)(1); Veh. Code, § 2800.2, subd. (a).) Prior to the commencement of jury selection in the initial trial, the prosecutor dismissed the vehicular manslaughter charge pursuant to section 1385, subdivision (a). As noted previously herein, defendant was convicted in the first trial of second degree murder and evading an officer. Defendant was charged in the amended information with murder, leaving the scene of an accident, and vehicular manslaughter. Defendant was convicted of all three offenses. Defendant’s sentence for the second degree murder was 15 years to life. Defendant was sentenced to six years for the vehicular manslaughter, which was stayed pursuant to section 654, subdivision (a). Defendant received a concurrent two year prison term for leaving the scene of an accident.
3. Double jeopardy
The California Supreme Court has held: “As a general rule, the double jeopardy guarantee imposes no limitation on the power to retry a defendant who has succeeded in having his conviction set aside on appeal on grounds other than insufficiency of evidence. [Citation.]” (People v. Hernandez (2003) 30 Cal.4th 1, 3, citing United States v. DiFrancesco (1980) 449 U.S. 117, 131; see also Burks v. United States (1978) 437 U.S. 1, 18; People v. Superior Court (Marks) (1991) 1 Cal.4th 56, 72; People v. Wilson (1996) 43 Cal.App.4th 839, 848.) In People v. Hanson (2000) 23 Cal.4th 355, 363-366, the California Supreme Court held that upon resentencing a trial court may not increase the amount of restitution imposed following the first trial. (See also People v. Monge (1997)16 Cal.4th 826, 877 [after successful appeal of a conviction a defendant may not upon reconviction be subjected to an aggregate sentence greater than that imposed at the first trial]; People v. Henderson (1963) 60 Cal.2d 482, 495-497 [increased punishment following retrial violated the state’s prohibition against double jeopardy]; People v. Craig (1998) 66 Cal.App.4th 1444, 1449 [“when a sentence is a mix of time and money each must be measured against like components of the earlier sentence for the purposes of determining whether the aggregate sentence has been increased”].)
4. The sentences could be properly imposed
Defendant, relying upon Hanson and Craig, argues that the terms imposed for the vehicular manslaughter and leaving the scene of the accident constituted an increase in punishment. As noted, the six-year term for vehicular manslaughter was stayed pursuant to section 654, subdivision (a) and the two-year term for leaving the accident scene was ordered to run concurrently. In People v. Savala (1983) 147 Cal.App.3d 63, 68-69, our colleagues in the Court of Appeal for the Third Appellate District held that on remand, the trial court is entitled to consider the entire sentencing scheme. (Ibid., overruled on another point in People v. Foley (1985) 170 Cal.App.3d 1039, 1044-1045; see People v. Burbine (2003) 106 Cal.App.4th 1250, 1258; People v. Hill (1986) 185 Cal.App.3d 831, 834.) In Savala, the trial court, following remand for resentencing, sentenced the defendant to the same aggregate term as the original sentence by increasing the principal term to the upper term and staying the enhancement. The appellate court held the sentence was proper because it did not exceed the original aggregate term. (People v. Savala, supra, 147 Cal.App.3d at p. 69; see People v. Castaneda (1999) 75 Cal.App.4th 611, 614.) Likewise here, the six-year term imposed as to the vehicular manslaughter was stayed pursuant to section 654, subdivision (a). Also, the two-year term for leaving the accident scene was imposed concurrently and does not add to the duration of defendant’s sentence in any way.
5. The prosecutor did not vindictively charge defendant with vehicular manslaughter
Defendant’s claim he is entitled to a partial reversal based on a vindictive prosecution theory is likewise without merit. Defendant argues the prosecution prior to the first trial dismissed the vehicular manslaughter charge. Thus, defendant asserts the prosecution is bound by that decision on retrial. To begin with, no dismissal motion was made in the trial court thereby forfeiting the vindictive prosecution issue. (People v. Lucas (1995) 12 Cal.4th 415, 477; People v. Edwards (1991) 54 Cal.3d 787, 827.) However, the prosecution’s decision to move to dismiss the vehicular manslaughter charge before the initial trial was a rationally based tactical decision. Before the first trial, the prosecutor explained that vehicular manslaughter required the commission of an unlawful act not amounting to a felony or a lawful act that is tantamount to reckless conduct. However, because defendant was also charged in the first trial with Vehicle Code section 2800.2 as a felony, the prosecutor argued, “Based on the fact that the People’s theory and the People’s position is that it is the evading that causes this case to be a murder, that that felony, felony evading, would be the course of conduct that would constitute the vehicular manslaughter.” When the case was originally tried, felony evading could serve as the underlying felony for a second degree murder conviction. (People v. Sewell (2000) 80 Cal.App.4th 690, 694 disapproved in People v. Howard, supra, 34 Cal.4th at p. 1139, fn. 5.) At the original trial, a prosecutor could conclude that with the availability of the now disapproved use of the felony evading as the underlying offense, the interests of justice would best be served by simplifying the prosecution. In a similar vein, after the reversal, the prosecutor could constitutionally conclude that it would be wiser to provide the jury with the option of returning a less serious vehicular manslaughter verdict in the event the jurors could not find defendant acted with the requisite implied malice to support a second degree murder guilty charge. There is no evidence of any special treatment of defendant. Thus, nothing in our Constitutions would prevent the prosecutor, prior to the retrial, from reconsidering the original decision to simplify the case by moving to dismiss the vehicular manslaughter charge. (See People v. Michaels (2002) 28 Cal.4th 486, 514; People v. Edwards, supra, 54 Cal.3d at p. 827.)
B. Statute of Limitations
Defendant argues that the statute of limitations barred conviction for the vehicular manslaughter and leaving the scene of an accident counts. Section 1009 provides in pertinent part: “An . . . information may be amended by the district attorney, and an amended complaint may be filed by the prosecuting attorney, without leave of court at any time before the defendant pleads or a demurrer to the original pleading is sustained. . . . An indictment or accusation cannot be amended so as to change the offense charged, nor an information so as to charge an offense not shown by the evidence taken at the preliminary examination. . . .” The California Supreme Court has held that such an amendment may be filed at any time including after a reversal. (People v. Chadd (1981) 28 Cal.3d 739, 758; Harris v. Superior Court (1988) 201 Cal.App.3d 624, 627.) Section 801 provides: “ . . . [P]rosecution for an offense punishable by imprisonment in the state prison shall be commenced within three years after commission of the offense.” However, section 803, subdivision (b) provides: “No time during which prosecution of the same person for the same conduct is pending in a court of this state is a part of a limitation of time prescribed in this chapter.”
In People v. Whitfield (1993) 19 Cal.App.4th 1652, 1659-1660, our colleagues for the Court of Appeal for the Third Appellate District held: “[W]here an action is dismissed and refiled after the period of limitations, the prosecutor may charge offenses based on the ‘same conduct’ as the dismissed action because the filing of the original action tolls the statute of limitations not only as to those offenses charged in the original action, but also as to offenses based on the ‘same conduct.’” (Footnote omitted.) In People v. Angel (1999) 70 Cal.App.4th 1141, 1149, while discussing the comment to subdivision (6)(b) of section 1.06 of the Model Penal Code, the Court of Appeal held: “‘Paragraph (b) of Subsection (6) provides that the period of limitation does not run during any time when a prosecution “for the same conduct is pending” against the accused in the forum. It tolls the applicable statute during pendency of a prosecution in order to provide for the contingency of the trial’s termination prior to final adjudication or reversal on appeal. . . . A prosecution is considered “pending” during that period of time beginning with the day the prosecution is commenced, as defined by Subsection (5), and ending with the day it is dismissed by final adjudication.’ (Model Pen. Code & Commentaries, com. 5 to § 1.06, pp. 99-100, italics added, fn. omitted.)” (See also People v. Chardon (1999) 77 Cal.App.4th 205, 216 [two charged offenses filed on separate occasions were based on the same act and a belated filing not violate the statute of limitations]; People v. Bell (1996) 45 Cal.App.4th 1030, 1064-1065 [forgery and false filing offenses related back to the issuance of the arrest warrant for rent skimming offenses, which tolled the statute of limitations].) In this case, the prosecutor’s filing of vehicular manslaughter and leaving the scene of the accident related back to the acts that took place on the same occasion. The statute of limitations does not require reversal of the vehicular manslaughter and leaving the scene of the accident charges.
C. Multiple Prosecution
Citing Kellett v. Superior Court (1966) 63 Cal.2d 822, 827, defendant argues that section 654, subdivision (a) bars his convictions for vehicular manslaughter and leaving the scene of an accident. Section 654, subdivision (a) provides: “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, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.” Section 954 states: “An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated. The prosecution is not required to elect between the different offenses or counts set forth in the accusatory pleading, but the defendant may be convicted of any number of the offenses charged, and each offense of which the defendant is convicted must be stated in the verdict or the finding of the court; provided, that the court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately. An acquittal of one or more counts shall not be deemed an acquittal of any other count.”
In Kellett, the defendant was charged with misdemeanor exhibiting a firearm after he was observed on a public sidewalk with a pistol in his hand. Following his conviction for the misdemeanor exhibiting offense, he was charged with felony possession of a concealable weapon related to the same incident. The Supreme Court held: “When, as here, 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 v. Superior Court, supra, 63 Cal.2d at p. 827; see People v. Davis (2005) 36 Cal.4th 510, 557.) However, in this case, when the retrial commenced defendant was not sentenced to anything. In our unpublished opinion filed after the remand from our Supreme Court, we reversed the judgment and ordered resentencing on the felony evading charge once the homicide charge was resolved. (People v. Villegas, supra, [typed opn. at p. 5].) In order for Kellett and the multiple prosecution provisions of section 654, subdivision (a) to apply, there must have been both conviction and sentence which means the irrevocable pronouncement of judgment. (People v. Tideman (1962) 57 Cal.2d 574, 586; People v. Winchell (1967) 248 Cal.App.2d 580, 588; see 3 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Punishment, § 135, p. 199.) Defendant was not sentenced when the retrial occurred. Thus, section 654, subdivision (a) as construed in Kellett and its progeny is inapplicable.
Defendant relies on Sanders v. Superior Court (1999) 76 Cal.App.4th 609, 616. In Sanders, the defendant’s convictions for 10 counts of grand theft of real property were reversed for insufficient evidence. That reversal amounted to an acquittal rather than trial error. (Ibid.; see People v. Hernandez, supra, 30 Cal.4th at p. 3.) As a result, the prosecutor was barred from refiling the same charges. (Sanders v. Superior Court, supra, 76 Cal.App.4th at p. 616; see also People v. Cuevas (1996) 51 Cal.App.4th 620, 623-626; People v. Douglas (1966) 246 Cal.App.2d 594, 598-599.) In this case, the prosecutor was not barred from charging defendant with vehicular manslaughter and leaving the scene of an accident on retrial.
D. Sentencing
Citing Cunningham v. California (2007) 549 U.S. ___, ___ [127 S.Ct. 856, 871] and Blakely v. Washington (2004) 542 U.S. 296, 301, defendant argues that his Fourteenth Amendment rights to due process of law was violated by imposition of the upper term as to the manslaughter conviction. In People v. Black (July 19, 2007, S126182) ___ Cal.4th ___, ___, the California Supreme Court examined the imposition of an upper term under the state determinate sentencing law in light of Cunningham v. California, supra, ___ U.S. ___, ___ [127 S.Ct. at pp. 863-864]. Our Supreme Court held: “[A]s long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi [v. New Jersey (2000) 530 U.S. 466] and its progeny, any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial.” (People v. Black, supra, ___ Cal.4th at p. ___, original italics.) Our Supreme Court further held: “It follows that imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (People v. Black, supra, ___ Cal.4th. at p. ___.)
In this case, defense counsel objected to the imposition of the upper term as to count 5, citing Blakely v. Washington, supra, 542 U.S. at page 301. The trial court relied upon defendant’s prior convictions and probationary status in imposing the upper term as to count 5: “The reason I chose the high term is I thought the factors in aggravation outweighed the factors in mitigation. What I took into account was his prior record. I took into account the egregious conduct here. I took into account the testimony that he had been given notice that some cars had to stop as he was going through the red lights. I took into account the callous behavior after the accident, that he ran away after someone had been seriously hurt. I took all of those factors into account. [¶] And, furthermore, I took into account that he was, at the time this occurred, on probation on another felony matter. And I took all of those mattes into account. That’s why I chose to give him high term on that case.” As a result, defendant’s constitutional right to a jury trial was not violated by the trial court’s imposition of the upper term. The “‘statutory maximum’” sentence to which defendant was exposed was the upper term. (People v. Black, supra, ___ Cal.4th at p. ___.)
IV. DISPOSITION
The judgment is affirmed.
We concur: ARMSTRONG, J., MOSK, J.