Opinion
NOT TO BE PUBLISHED
Mendocino County Super. Ct. Nos. SCWLCRCR 08-86164, SCWLCRCR 09-89483
RUVOLO, P. J.
I.
INTRODUCTION
Appellant Kenneth Ryan Whipple appeals from his convictions for reckless driving while evading police (Pen. Code, § 2800.2, subd. (a)), and assault with a deadly weapon (§ 245, subd. (a)(1)) in Case No. SCWLCRCR 09-89483 (Case No. 09-89483). He also challenges the sentences imposed in Case No. 09-89483, and in Case No. SCWLCRCR 08-86164 (Case No. 08-86164) following his guilty plea to one count of auto theft in that case. He contends on appeal that: (1) there was insufficient evidence upon which the jury could convict him of either felony in Case No. 08-86164; (2) there was instructional error on the issue of the mental state necessary for the assault conviction; and (3) there were sentencing errors both in imposing consecutive sentences for evasion and assault, and in calculating his entitlement to custody credits.
All subsequent undesignated statutory references are to the Penal Code.
We agree that appellant is entitled to additional custody credits based on a recent amendment to section 4019, and we order his abstract of judgment amended accordingly. Otherwise, we affirm his convictions and sentence.
II.
RELEVANT PROCEDURAL HISTORY
An amended information was filed in Case No. 09-89483 by the Mendocino County District Attorney on August 14, 2009, charging appellant with one count of assault with a deadly weapon (§ 245, subd. (a)(1)), and one count of recklessly driving while evading a police officer (Veh. Code, § 2800.2, subd. (a)). The information also alleged special allegations, including that appellant had served three prior prison terms within the meaning of section 667.5, subdivision (b), and that he was on bail at the time of the current offenses. Appellant thereafter pleaded not guilty to the charges, and denied the special allegations.
Case No. 09-89483 proceeded to jury trial on August 17, 2009, and concluded the following day with the jury’s verdict of guilty as to both counts in the amended information. Appellant waived a jury trial on the special allegations. After the jury was discharged, the court considered the evidence presented by the prosecutor as to the special allegations, and found special allegations one through four to be true beyond a reasonable doubt. The court found the fifth special allegation not to be true.
As to Case No. 08-86164, an information was filed on April 1, 2009, charging appellant with one count of auto theft (Veh. Code, § 10851, subd. (a)), one count of failure to stop at the scene of an accident (Veh. Code, § 20002, subd. (a), and one count of driving while privilege suspended (Veh. Code, § 14601.1, subd. (a)). Appellant entered a plea of guilty to the auto theft charge on September 30, 2009, and judgment and sentencing in Case No. 08-86164 was continued and consolidated with the entry of judgment and sentencing in Case No. 09-89483.
Judgment and sentencing took place on November 10, 2009. Probation was denied and appellant was sentenced to serve four years in state prison on the assault conviction, and consecutive terms of eight months each were imposed for the auto theft and recklessly evading a police officer convictions. The court ordered appellant to serve an additional consecutive term of two years for the special allegations found true, for a total aggregate state prison term of seven years four months. A motion to strike special allegation two was granted. Appellant was given credit for 259 days of custody actually served, plus 128 days of good time/work time credit. This timely appeal followed.
III.
Facts Underlying the Jury’s Verdicts
The first witness called at trial was tribal chief of police Lindon Duke, who had known appellant all of appellant’s life. On the afternoon of February 21, 2009, Chief Duke was on duty driving southbound on Highway 162 outside the town of Covelo, when he saw appellant driving a blue Dodge Durango at an excessive speed northbound in the opposing lane of travel. He saw appellant clearly through the windshield. There were two other people in the vehicle with appellant, but he could not tell who they were. Chief Duke knew Danny Montalvo, who owned the Durango, almost as well as he knew appellant, and would have recognized Montalvo if he had been driving the vehicle.
Mendocino County Deputy Sheriff James Elmore also knew appellant from over 100 contacts with him while he had been in law enforcement. Deputy Elmore was on duty the evening of February 21, 2009, and had been told by Chief Duke that a blue Durango was seen traveling recklessly through Covelo earlier that day. Therefore, Elmore was on the lookout for that vehicle. He saw the Durango stopped at the Redwood Oil gas station in Covelo at about 10:30 p.m. Appellant was standing next to the vehicle fueling it with the driver’s door open.
Deputy Elmore began to turn his vehicle around with the intention of stopping and talking to appellant when he saw appellant get into the driver’s seat and drive away northbound on Highway 162. After observing appellant drive through Covelo at approximately 35 miles per hour in a posted 25-mile-per-hour speed zone, Elmore activated his patrol car lights and siren, and the Durango sped up. The two vehicles were going around 70-75 miles per hour on Highway 162. The Durango then pulled off the main road onto a dirt lane at a speed of about 25 to 35 miles per hour, and then sped up to at least 85 miles per hour as it reached Henderson Lane. Elmore pursued the Durango and lost sight of it only for a few seconds.
Deputy Elmore encountered tribal police officer Carlos Rabano’s vehicle, and saw that it was damaged on the driver’s side. Elmore stopped briefly and was told by a “visibly shaken up” Rabano that the blue Durango had hit his patrol car. A videotape was made by an in-car camera system installed in the patrol car (ICOP video), and the videotape of the chase was then played for the jury.
Deputy Elmore also ascertained from dispatch that appellant was driving on a suspended license. There was at least one other person with appellant at the gas station sitting in the front passenger seat of the Durango. During the chase, Elmore drove as fast as 85 miles per hour, and the Durango was still pulling away from his patrol car. He testified that the location on the dirt road where Officer Rabano was stopped was about eight to nine feet across, and Rabano’s vehicle was in the middle of the road. He was blocking the road so someone coming upon the patrol car would have to stop. His vehicle could be seen at a distance of 75 yards.
Officer Rabano had been a senior officer with the Round Valley Tribal Police Department for two years, and prior to that he had worked with the Coyote Valley Tribal Police for eight years. On the night in question, Rabano was driving a Ford Expedition that had a siren, light bar on its roof, and a blue illuminated stripe on the side with “Tribal Police” written on the stripe. He heard on his radio that the police were in a chase with a blue Durango. Rabano drove to Refuge Road in the hope of intercepting the Durango. When he arrived there he could hear the sirens of the pursuing police. He then activated his own siren and lights, including his spot lights. His vehicle was parked in the middle of the road at this point. Given the size of his vehicle, there was only about one and one-half feet of road on either side.
Officer Rabano first saw the Durango when it stopped for a second about 100 feet away. He opened his door, stepped outside the vehicle and drew his weapon. The Durango then started coming at him at a high rate of speed. Rabano jumped onto the running board of his SUV and he could feel his vehicle being struck. The Durango hit the driver’s side, causing the open to close around Rabano’s body. There was fender and axle damage to his SUV, and the door would not close after being hit by the Durango. He saw three people in the Durango, but was unable to identify any of them. To get by Rabano’s vehicle, the Durango went partially off the road and hit a tree while doing so. Rabano did not discharge his weapon before the Durango ran into his vehicle.Rabano was slightly bruised in the collision, and he went to the hospital to get “checked out.”
Mendocino County Deputy Sheriff Richard Munoz was also very familiar with appellant. He had had “hundreds” of encounters with appellant during his employment with the Mendocino Sheriff’s Department. On February 21, 2009, Deputy Munoz was with Deputy Elmore during the pursuit of the Durango. He saw appellant at the Redwood Oil gas station, identified him, and told Elmore, “There’s Toby.” Appellant was then standing in the “V” of the driver’s door of the Durango, got into the driver’s seat, and drove away.
“Toby” is appellant’s nickname.
During the pursuit, the vehicles reached speeds of up to 85 miles per hour. The Durango also ran a stop sign along the way. Deputy Munoz saw the surveillance video taken by the camera at the gas station which also confirmed that it was appellant who got into the front seat of the Durango. Munoz knew who Danny Montalvo was, and he could not mistake appellant for Montalvo.
The prosecution rested its case after Deputy Munoz completed his testimony, and the defense rested without putting on any witnesses.
IV.
LEGAL ANALYSIS
A. There is Substantial Evidence that Appellant Was Driving the Durango During the Police Pursuit and at the Time of the Collision With Officer Rabano’s Vehicle.
The first two contentions on appeal are that there was insufficient evidence that it was appellant who was driving the Durango during the pursuit by Deputy Elmore and Deputy Munoz, and at the time the Durango collided with Officer Rabano’s SUV.
When reviewing a record for substantial evidence, we do not resolve issues related to credibility. Rather, we affirm the judgment “ ‘unless it appears “that upon no hypothesis what[so]ever is there sufficient substantial evidence to support” ’ the jury’s verdict. [Citation.]” (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
Where the issue is the identity of the wrongdoer, the uncorroborated testimony of a single witness is sufficient to sustain a conviction unless it is physically impossible or inherently improbable. (People v. Young (2005) 34 Cal.4th 1149, 1181; see also In re Gustavo M. (1989) 214 Cal.App.3d 1485, 1497 [single witness’s in-court identification of the defendant, even without corroboration of prior photographic evidence, is sufficient of identification to support a conviction]; In re Robert V. (1982) 132 Cal.App.3d 815, 821 [“ ‘testimony of a single witness is sufficient to uphold a judgment even if it is contradicted by other evidence, inconsistent or false as to other portions’ ”].)
Even out-of-court identifications by a single witness are sufficient to sustain a conviction based on that evidence. (People v. Boyer (2006) 38 Cal.4th 412, 480 [identification by single eyewitness and out-of-court identification both provided sufficient evidence to prove defendant’s identity]; People v. Cuevas (1995) 12 Cal.4th 252, 275 [out-of-court identifications may provide substantial evidence].)
Here, there was not one witness who identified appellant as the driver of the Durango, but three. First, tribal police chief Lindon Duke, who had known appellant his entire life, saw appellant driving a blue Dodge Durango on the afternoon of February 21, 2009, at an excessive speed northbound in the opposing lane of travel. He saw appellant clearly through the windshield. There was little chance of mistaking appellant for the owner of the vehicle, Danny Montalvo, since Chief Duke knew Montalvo almost as well as he knew appellant, and would recognize Montalvo if he were driving the vehicle.
In addition, both Deputy Elmore and Deputy Munoz were positive in their identifications of appellant as being the driver of the Durango they chased later that night. Deputy Elmore had known appellant from over 100 contacts with him while he had been in law enforcement. He first saw the Durango that evening stopped at the Redwood Oil gas station in Covelo at about 10:30 p.m. Appellant was standing next to the vehicle with the driver’s door open while fueling it.
Deputy Elmore began to turn his vehicle around with the intention of stopping and talking to appellant when he saw appellant get into the driver’s seat and drive off northbound on Highway 162. Elmore continued to pursue the Durango until encountering Rabano. During the chase, Elmore testified that he lost sight of the Durango only for a few seconds.
Deputy Munoz, who was with Deputy Elmore during the pursuit of the Durango, also saw appellant at the Redwood Oil gas station, standing in the “V” of the driver’s door. He then got into the driver’s seat and drove the Durango away. Munoz also reviewed the surveillance video taken by the camera at the gas station which additionally confirmed that it was appellant who got into the front seat of the Durango. Like Chief Duke, Munoz knew who Danny Montalvo was, and he could not mistake appellant for Montalvo.
Despite Elmore’s testimony that the Durango was in his sight the entire chase except for a few seconds, appellant argues there is no substantial evidence that appellant was the driver who hit Rabano’s vehicle because the ICOP video had a gap of six minutes during which time the camera did not show the Durango. This “fact” is based on appellate counsel’s reconstruction of the video with the testimony of the witnesses. This contention was disputed by respondent, who contended that the six-minute portion of the ICOP video where the Durango is not visible depicts events that occurred after the collision between the Durango and Rabano’s vehicle. Furthermore, consistent with Elmore’s testimony that the Durango was only out of sight for a few seconds, Munoz testified that there was no time during which the Durango was out of sight for a sufficient time to allow the driver to switch places with one of the passengers.
Appellant’s briefs persist in characterizing this six-minute portion of the ICOP video as a “gap, ” thereby analogizing this circumstance to the audio gap in People v. Superior Court (McCaffery) (1979) 94 Cal.App.3d 367 (McCaffery), which was held to be insufficient corroboration of an informant’s statement that the defendants had received stolen goods. There is no “gap” in the ICOP video. Thus, the audio in McCaffery, which was found to be “almost unintelligible” because of noise and inaudible portions, is not at all comparable to the video played for the jury in this case, nor is that case applicable. (Id. at p. 373.)
Based on the testimony, and even assuming a short period of time during which the officers lost sight of the Durango, we conclude under the deferential standard of review that there is substantial evidence to support the jury’s necessary finding that appellant was the driver of the Durango when it was evading the pursuing officers, and when it struck Rabano’s vehicle.
B. There Was Substantial Evidence of Intent to Commit an Assault on Rabano.
Appellant next argues there was insufficient evidence that appellant had the requisite mental state to commit an assault on Rabano.
Our Supreme Court has addressed and attempted to clarify the nature of the mental state needed for assault in three cases decided over a period of the last 30 years: People v. Rocha (1971) 3 Cal.3d 893 (Rocha), People v. Colantuono (1994) 7 Cal.4th 206, 213 (Colantuono), and People v. Williams (2001) 26 Cal.4th 779, 784 (Williams).
First, in Rocha, the defendant, who was convicted of assault with a deadly weapon, claimed he lacked any intent to stab the victim, and the trial court erred in refusing to instruct the jury that the crime required a specific intent to injure. (Rocha, supra, 3 Cal.3d at p. 896.) The Supreme Court rejected the argument and held that “assault with a deadly weapon is a general intent crime.” (Id. at p. 899.) More specifically, “the criminal intent which is required for assault with a deadly weapon... is the general intent to wilfully commit an act the direct, natural and probable consequences of which if successfully completed would be the injury to another. Given that intent it is immaterial whether or not the defendant intended to violate the law or knew that his conduct was unlawful. The intent to cause any particular injury [citation], to severely injure another, or to injure in the sense of inflicting bodily harm is not necessary.” (Ibid., fns. omitted.)
In Colantuono, the California Supreme Court reexamined the mental state requirement for assault, noting that “a certain measure of understandable analytical uncertainty continues.” (Colantuono, supra, 7 Cal.4th at p. 215.) The court explained: “[T]he question of intent for assault is determined by the character of the defendant’s willful conduct considered in conjunction with its direct and probable consequences. If one commits an act that by its nature will likely result in physical force on another, the particular intention of committing a battery is thereby subsumed. Since the law seeks to prevent such harm irrespective of any actual purpose to cause it, a general criminal intent or willingness to commit the act satisfies the mens rea requirement for assault.... [¶]... [F]or assault, as with any general intent crime, the nature of the defendant’s present willful conduct alone suffices to establish the necessary mental state without inquiry as to an intent to cause further consequences. [Citations.] Accordingly, upon proof of a willful act that by its nature will directly and immediately cause ‘ “the least touching, ” ’ ‘it is immaterial whether or not the defendant intended to violate the law or knew that his conduct was unlawful. The intent to cause any particular injury [citation], to severely injure another, or to injure in the sense of inflicting bodily harm is not necessary.’ [Citation.] The pivotal question is whether the defendant intended to commit an act likely to result in such physical force, not whether he or she intended a specific harm. [Citation.] Because the nature of the assaultive conduct itself contemplates physical force or ‘injury, ’ a general intent to attempt to commit the violence is sufficient to establish the crime.” (Id. at pp. 217-218, fns. & italics omitted.)
The court further explained: “[T]he necessary mental state [for assault] is ‘an intent merely to do a violent act.’ [Citation.] The consequences of that act serve only to inform the inquiry of whether the defendant attempted physical force against the person of another; but they are not controlling. Once the violence is commenced, ‘the assault is complete.’ [Citation.]” (Colantuono, supra, 7 Cal.4th at p. 219.)
Finally, in Williams, the Supreme Court stated that Colantuono’s description of the mens rea for assault “arguably implies an objective mental state consistent with a negligence standard. [Citation.]” (Williams, supra, 26 Cal.4th at p. 787.) Because Colantuono’s language “may have been confusing, ” the court again sought to clarify the mental state required for assault. (Id. at pp. 783, 787.) The court explained that “a defendant is only guilty of assault if he intends to commit an act ‘which would be indictable [as a battery], if done, either from its own character or that of its natural and probable consequences.’ [Citation.] Logically, a defendant cannot have such an intent unless he actually knows those facts sufficient to establish that his act by its nature will probably and directly result in physical force being applied to another, i.e., a battery. [Citation.] In other words, a defendant guilty of assault must be aware of the facts that would lead a reasonable person to realize that a battery would directly, naturally and probably result from his conduct.” (Id. at pp. 787-788.)
Therefore, the test is an objective one: the defendant “need not be subjectively aware of the risk that a battery might occur.” (Williams, supra, 26 Cal.4th at p. 788, fn. omitted) The Williams court also expressly “reaffirm[ed] that assault does not require a specific intent to injure the victim. [Citation.]” (Ibid.) Proof of mental state required for assault, like other general intent crimes, can be reasonably inferred by the jury from the circumstances underlying the alleged crime. (People v. Finney (1980) 110 Cal.App.3d 705, 715; see also People v. Horton (1970) 9 Cal.App.3d Supp. 1, 10-11.)
The facts of this case, including reasonable inferences the jury was entitled to draw from those facts, supports an implied finding that appellant had the requisite general intent to commit an assault. Officer Rabano was driving a large SUV, a Ford Expedition. When he heard about the police chase with a blue Durango, Rabano parked his Expedition in the middle of Refuge Road, a dirt road. Given the size of his vehicle, there was only about one and one-half feet of road on either side.
Officer Rabano first saw the Durango when it stopped for about a second approximately 100 feet away, giving him sufficient time to open his door, step outside the Expedition, and draw his weapon. The Durango then started coming at him at a high rate of speed. Rabano jumped onto the running board of his SUV and he could feel his vehicle being struck. The Durango hit the driver’s side and the opened door closed around Rabano’s body. There was fender and axle damage, and the door would not close after that. Rabano was slightly bruised in the collision, and he went to the hospital to get “checked out.”
Officer Rabano also testified that there was insufficient room to get around his vehicle without going off the roadway, and there was a large oak tree obstructing passage around the driver’s side of his vehicle. Given this special constraint, there was no way for appellant to evade pursuing police by passing Rabano’s vehicle without hitting it and the oak tree. Thus, the jury could easily infer that appellant, who stopped briefly to assess the situation, decided to use the size and momentum of the Durango SUV he was driving to force his way through both the Expedition and the obstructing tree. Therefore, under the law of assault as articulated by our Supreme Court, the jury was justified in concluding that appellant must have been “aware of the facts that would lead a reasonable person to realize that a battery would directly, naturally and probably result from his conduct.” (Williams, supra, 26 Cal.4th at pp. 787-788.)
C. Appellant Failed to Object to CALCRIM No. 875, and Therefore Waived Any Claim That the Instruction on the Law of Assault Was Incorrect. Assuming Counsel Should Have Objected, Appellant Was Not Prejudiced by the Omission.
In connection with the assault with a deadly weapon charge, the trial court gave the jury the standard instruction on that crime as set forth in CALCRIM No. 875. That instruction reads as follows:
“The defendant is charged in Count One of the Information with assault with a deadly weapon in violation of Penal Code section 245.
“To prove that the defendant is guilty of this crime, the People must prove that:
“1. The defendant did an act with a deadly weapon that by its nature would directly and probably result in the application of force to a person;
“2. The defendant did that act willfully;
“3. When the defendant acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone;
“AND
“4. When the defendant acted, he had the present ability to apply force with a deadly weapon to a person.
“Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage.
“The terms application of force and apply force mean to touch in a harmful or offensive manner. The slightest touching can be enough if it is done in a rude or angry way. Making contact with another person, including through his or her clothing, is enough. The touching does not have to cause pain or injury of any kind.
“The touching can be done indirectly by causing an object to touch the other person.”
“The People are not required to prove that the defendant actually touched someone.
“The People are not required to prove that the defendant actually intended to use force against someone when he acted.
“No one needs to actually have been injured by defendant’s act. But if someone was injured, you may consider that fact, along with all the other evidence, in deciding whether the defendant committed an assault, and if so, what kind of assault it was.
“A deadly weapon is any object, instrument, or weapon that is inherently deadly or dangerous or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury.” (CALCRIM No. 875.)
While appellant does not challenge CALCRIM No. 875 as an accurate statement of the law of assault, he contends on appeal that the trial court erred in not also instructing the jury that it must determine whether appellant “intended to use” the Durango as a deadly weapon.
No objection was made at trial to CALCRIM No. 875, as read to the jury, nor was any request made by appellant for any additional, clarifying instruction. Failure to object under these circumstances constitutes a forfeiture of the right to raise the issue for the first time on appeal. As our Supreme Court reminded us earlier this year: “We conclude defendant forfeited this claim by failing to object to the trial court’s consent instruction or to request any modification or amplification of it at trial. A trial court has no sua sponte duty to revise or improve upon an accurate statement of law without a request from counsel (People v. Kelly (1992) 1 Cal.4th 495, 535...), and failure to request clarification of an otherwise correct instruction forfeits the claim of error for purposes of appeal (People v. Rundle (2008) 43 Cal.4th 76, 151...; People v. Samaniego (2009) 172 Cal.App.4th 1148, 1163....)... If defendant believed the instruction on consent required elaboration or clarification, he was obliged to request such elaboration or clarification in the trial court. (People v. Rundle, supra, 43 Cal.4th at p. 151; People v. Hart (1999) 20 Cal.4th 546, 622....)” (People v. Lee (2011) 51 Cal.4th 620, 638.) Therefore, we reject appellant’s assignment of error on the ground of forfeiture and waiver.
Nevertheless, to forestall any future claim of ineffective assistance of counsel, we also conclude that even indulging appellant’s argument on appeal, the failure to instruct the jury that it must find that appellant “intended to use” the Durango as a deadly weapon did not prejudice him. We reach this conclusion regardless of whether we apply the Chapman standard for federal constitutional error, and must decide whether the error is harmless beyond a reasonable doubt (Chapman v. California (1967) 386 U.S. 18, 24) or our state constitution’s Watson standard to determine if there is a reasonable probability of a different result (People v. Watson (1956) 46 Cal.2d 818, 835).
The first element of assault with a deadly weapon contained in CALCRIM No. 875, instructed that in order to convict appellant of assault, the jury must find that appellant “did an act with a deadly weapon that by its nature would directly and probably result in the application of force to a person.” CALCRIM No. 875 also defined “deadly weapon”: “A deadly weapon is any object, instrument, or weapon that is inherently deadly or dangerous or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury.” (Italics added.)
Therefore, the jury was told that, in order to convict, it had to be convinced beyond a reasonable doubt both that: (1) the Durango was inherently dangerous or was used in a way capable of causing death or great bodily injury, and (2) that appellant drove the Durango in the direction of Rabano and his vehicle in a manner “that by its nature would directly and probably result in the application of force to a person.” As instructed, the jury had to have concluded that appellant used the Durango “as a weapon.” Despite this obvious conclusion, appellant tries to parse the intent requirement for assault as requiring both that the appellant used the Durango as a weapon, and that he also “intended to use [the Durango] as a weapon.” We discern no meaningful distinction between the two. If the Durango was capable of being used as a deadly weapon, and if appellant used the vehicle as a weapon, a fortiori he intended that use. No further instruction was needed to meet the mental state standard required by law.
Even if we further indulge appellant’s argument that there is a legally significant distinction between “using a vehicle as a weapon, ” and “intending to use a vehicle as a weapon, ” the evidence overwhelming supports a finding that appellant intended to use the Durango as a weapon. To repeat, Refuse Road was almost completely blocked by Rabano’s Expedition. A large oak tree was just off the road on the driver’s side of the Expedition, making it impossible for the Durango to squeeze through on the driver’s side without hitting the tree and the Expedition. There is no evidence that appellant did not see what was obviously 100 feet in front of him when he stopped and saw the officer. There was no way for appellant to pass except by making the conscious decision to use the stolen Durango as a ramming device to force his way through, which act necessarily required forceful contact with Rabano and his vehicle. Therefore, there was no prejudice to appellant in not instructing the jury that it had to find he intended to use the Durango as a weapon.
D. The Trial Court Did Not Err in Imposing Consecutive Sentences for Evading the Police, and For His Assault on Officer Rabano.
As his first claim of sentencing error, appellant contends the court should not have imposed separate, consecutive sentences for reckless driving while evading police (Veh. Code 2800.2, subd. (a)), and for assault with a deadly weapon (§ 245, subd. (a)(1)). At sentencing, appellant’s counsel requested that the court impose concurrent sentencing on the two counts pursuant to section 654, which was opposed by the prosecutor.
In denying the motion, the court stated it reasons as follows: “I do think consecutive sentences are in order primarily for the reasons stated by the prosecution. But, specifically, a 245 requires a specific intent to commit a battery. 2800.2 is a general intent to avoid police contact. I find that the intents are separate and distinct.”
The prosecutor argued that the assault involved an intent separate from that needed for the evasion of police conviction.
Section 654, subdivision (a) provides that: “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.”
But, section 654 does not apply when a defendant’s course of criminal conduct involves separate intents and objectives. (People v. Latimer (1993) 5 Cal.4th 1203, 1208-1212.) While we agree with appellant’s observation that the trial court was mistaken in stating that the assault on Rabano required specific intent, that misstatement does not invalidate the trial judge’s decision to impose consecutive sentences for both crimes. The point the court obviously was making was simply that the assault involved an intent and objective which were separate and apart from those involved in the evasion charge. While the intent to evade police is needed to be proved to sustain a conviction under Vehicle Code section 2800.2, and that is likewise the objective of that crime, assault requires an intent to use the Durango as a deadly weapon under circumstances where “a battery would directly, naturally and probably result from his conduct.” (Williams, supra, 26 Cal.4th at pp. 787-788.) It is not conduct that is solely in furtherance of appellant’s objective to evade police. Therefore, because the intent and objective of each crime was distinct, consecutive sentences could be imposed within the discretion of the trial.
E. Defendant Is Entitled to Additional Presentence Credits.
Appellant’s last claim on appeal is that he is entitled to receive the benefits of increased custody credits based upon the retroactive application of the 2010 amendment to section 4019.
Section 4019 was amended effective January 25, 2010, and provides that, except for crimes not involved here, “a term of four days will be deemed to have been served for every two days spent in actual custody.” (§ 4019, subd. (f); see id., subds. (b) & (c); see also Stats. 2009, 3d Ex.Sess. 2009-2010, ch. 28, § 50.) The legislation addressed the state’s fiscal crisis by, among other things, awarding presentence conduct credits at a greater rate, thereby reducing jail populations. (See, e.g., Stats. 2009, 3d Ex.Sess. 2009-2010, ch. 28, §§ 41, 50.) There is a split of authority on whether the amendments to section 4019 are retroactive. (See, e.g., People v. Pelayo (2010) 184 Cal.App.4th 481, review granted July 21, 2010, S183552 (Pelayo) [amendments apply retroactively]; People v. Hopkins (2010) 184 Cal.App.4th 615, review granted July 28, 2010, S183724 (Hopkins) [amendments apply prospectively].)
The issue is currently pending before our Supreme Court in numerous cases, including, People v. Bacon (2010) 186 Cal.App.4th 333, review granted Oct. 13, 2010, S184782 [amendments retroactive]; Pelayo, supra, 184 Cal.App.4th 481 [same]; People v. Norton (2010) 184 Cal.App.4th 408, review granted Aug. 11, 2010, S183260 (Norton) [same]; People v. Landon (2010) 183 Cal.App.4th 1096, review granted June 23, 2010, S182808 (Landon) [same]; People v. House (2010) 183 Cal.App.4th 1049, review granted June 23, 2010, S182813 [same]; People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963 [same]; Hopkins, supra, 184 Cal.App.4th 615, [amendments prospective]; People v. Otubuah (2010) 184 Cal.App.4th 422, review granted July 21, 2010, S184314 [same]; and People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, S181808 [same], among possibly others.
We are persuaded on balance by the arguments favoring retroactive application of the amendments, a conclusion consistent with the reported cases from the First Appellate District (Pelayo, supra, 184 Cal.App.4th 481; Norton, supra, 184 Cal.App.4th 408; Landon, supra, 183 Cal.App.4th 1096, and with the legislation’s stated aim of “address[ing] the fiscal emergency declared by the Governor” (Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 62). Accordingly, we remand the matter for a recalculation of defendant’s presentence credits.
IV.
Disposition
The matter is remanded to the trial court with directions to recalculate defendant’s credits under amended section 4019. The trial court shall prepare an amended abstract of judgment and forward a copy to California’s Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: REARDON, J., SEPULVEDA, J.