Filed 4/1/14 P. v. Conners CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B247491
Plaintiff and Respondent, (Los Angeles County Super. Ct.
No. BA404162)
v.
ENOCH CONNERS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Ronald
S. Coen, Judge. Affirmed.
Paul R. Kraus, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr.,
Supervising Deputy Attorney General, and Allison H. Chung, Deputy Attorney General,
for Plaintiff and Respondent.
________________________________
The jury convicted defendant and appellant Enoch Conners of two counts of first
degree burglary (Pen. Code § 459)1 (counts 1 and 2) and six counts of misdemeanor
resisting arrest (§ 148, subd. (a)(1)) (counts 4-9). He was found not guilty of first degree
burglary (§ 459) in count 3.
The trial court sentenced defendant to seven years four months in state prison, plus
two years in county jail, consisting of the upper term of six years in count 1, a
consecutive term of sixteen months in count 2 (one-third the mid-term), consecutive
terms of one year in county jail on counts 4 and 6, and concurrent terms of one year in
county jail on counts 5, 7, 8, and 9. Defendant was awarded 603 presentence custody
credits and 90 days of conduct credit.
Defendant contends that five of his six sentences for misdemeanor resisting arrest
must be stayed under section 654, and the trial court erred in its calculation of
presentence custody credits and conduct credits.
We affirm.
FACTS
Defendant burglarized the homes of Ryan Glenn and Gina Rudnick on the
morning of June 3, 2011.2 Glenn confronted defendant and observed him driving away in
a late model, copper-colored BMW coupe that was parked across the street from his
house. Glenn reported the crime, described the vehicle, and provided police with a
license plate number that matched defendant’s, except that two numbers were transposed.
Rudnick also noticed the BMW after realizing that someone had forcibly entered her
house, and she reported the incident to the police.
1 All further statutory references are to the Penal Code unless otherwise specified.
2 Defendant does not challenge the burglary convictions, nor does he argue that
there is insufficient evidence to support the convictions for misdemeanor resisting arrest.
We summarize the facts viewing the evidence in the light most favorable to the judgment.
2
Officer Jason Perez located the BMW across the street from Rudnick’s residence.
He recovered a pink bag from the front seat that contained jewelry and other items taken
from Glenn’s home.
The police conducted a perimeter search in the area around Rudnick’s home and
observed defendant standing next to bags in front of another residence. Officer Andres
Peters made eye contact with defendant, who immediately fled, evading arrest. The
perimeter search lasted several hours and involved multiple units and air support, but was
unsuccessful.
After the perimeter search ended, Officer Michael Delery and his partner, Officer
Aride, were returning to their station in a marked squad car when Officer Delery saw
defendant walking out of a driveway two houses north of Rudnick’s home. Officer
Delery accelerated toward defendant, who noticed him and began to run. Officer Delery
parked the vehicle, and Officer Aride, who was in uniform, exited the vehicle and began
to pursue defendant on foot. He yelled for defendant to stop. Defendant escaped over a
fence just before Officer Delery parked the car and caught up to Officer Aride.
Police then conducted a second perimeter search. Several K-9 units were
deployed. Defendant was issued a warning over a helicopter P.A. system that dogs were
being used, and if he refused to surrender, the dogs would be unleashed and could harm
him. K-9 Officer Jeff Miller and his dog Nico eventually located defendant, who had
forcibly entered another residence on Rudnick’s street. Officer Miller could see
defendant moving around inside the house. Several officers entered the house and yelled
for defendant to surrender, but he did not comply. They were eventually able to
determine that he was hiding in the basement.
Sergeant Sola, who led the search after the K-9 team located defendant, repeatedly
ordered defendant to surrender, informing him the officers would release “clear out” gas
and use a Taser if he resisted. Defendant continued to resist arrest. Officers released the
“clear out” gas and defendant continued to evade them, moving throughout the basement
and attempting to breathe through different air vents. Officer Fitzsimmons deployed a
Taser against defendant. Defendant still refused to comply with the officers’ orders and
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warnings, so Officer Roca tased defendant. Finally, defendant was apprehended and
taken into custody, after being tased a third time.
DISCUSSION
Imposition of Separate Sentences for Misdemeanor Resisting Arrest Convictions
Section 654, subdivision (a) provides, in pertinent part: “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.” “In Neal v. State
of California (1960) 55 Cal.2d 11, this court construed the statute broadly: ‘“Section 654
has been applied not only where there was but one ‘act’ in the ordinary sense . . . but also
where a course of conduct violated more than one statute and the problem was whether it
comprised a divisible transaction which could be punished under more than one statute
within the meaning of section 654.” [Citation.] [¶] Whether a course of criminal
conduct is divisible and therefore gives rise to more than one act within the meaning of
section 654 depends on the intent and objective of the actor. If all of the offenses were
incident to one objective, the defendant may be punished for any one of such offenses but
not for more than one.’ (Id. at p. 19, italics added.)” (People v. Rodriguez (2009) 47
Cal.4th 501, 507.) “‘If, however, the defendant had multiple or simultaneous objectives,
independent of and not merely incidental to each other, the defendant may be punished
for each violation committed in pursuit of each objective even though the violations
shared common acts or were parts of an otherwise indivisible course of conduct.
[Citation.]’ [Citation.]” (People v. Hairston (2009) 174 Cal.App.4th 231, 240
(Hairston).)
“The question whether section 654 is factually applicable to a given series of
offenses is for the trial court, and the law gives the trial court broad latitude in making
this determination. Its findings on this question must be upheld on appeal if there is any
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substantial evidence to support them.” (People v. Hutchins (2001) 90 Cal.App.4th 1308,
1312 (Hutchins).) “When a trial court sentences a defendant to separate terms without
making an express finding the defendant entertained separate objectives, the trial court is
deemed to have made an implied finding each offense had a separate objective.” (People
v. Islas (2012) 210 Cal.App.4th 116, 129.) “‘“We must ‘view the evidence in a light
most favorable to the respondent and presume in support of the [sentencing] order the
existence of every fact the trier could reasonably deduce from the evidence. [Citation.]’
[Citation.]” [Citation.]’ (Hutchins, supra, . . . at pp. 1312-1313.)” (People v. Tarris
(2009) 180 Cal.App.4th 612, 626-627.)
Defendant was convicted of six counts of misdemeanor resisting arrest with
respect to six different officers: Delery, Aride, Miller, Sola, Fitzsimmons, and Roca. At
sentencing, the trial court noted defendant could be sentenced separately for each of the
offenses, implicitly finding each offense involved a separate intent: “As far as the 148s,
they can be punished separately pursuant to . . . section 148, subdivision (a) and
[Hairston, supra, 174 Cal.App.4th] 231.” Defendant contends the court was statutorily
required to stay the terms for five of his six misdemeanor resisting arrest convictions
pursuant to section 654 because he engaged in an indivisible course of conduct and had a
single intent to evade arrest.
In Hairston, supra, 174 Cal.App.4th at page 233, the defendant was convicted of
one count of criminal threats enhanced for personal use of a handgun, and three counts of
misdemeanor resisting arrest (§ 148, subd. (a)(1)) with respect to three separate officers.
He was sentenced to three one-year terms in county jail to run concurrent with his term of
thirteen years in prison. (Ibid.) The defendant first resisted arrest when a sheriff’s
deputy following his car activated the patrol car’s lights. Although the deputy yelled for
the defendant to stop, he ran around a building and disappeared. A second deputy arrived
on the scene to assist and spotted the defendant running through an apartment complex
and jumping over a wall. He exited his vehicle, identified himself, and ordered the
defendant to put his hands over his head, but the defendant jumped back over the wall
and ran through the complex, resisting arrest a second time. The defendant then ran in
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the direction of a third deputy arriving on the scene in his vehicle. The deputy slammed
on his brakes, got out of the car, and pointed a gun at the defendant, ordering him to stop.
The defendant fled the third deputy as well. On appeal, he contended, as defendant here
does, that he acted with the single objective of avoiding arrest by the officers. The
appellate court held that punishment could be imposed for all three violations of section
148 because the “[d]efendant formed a new and independent intent with each officer he
encountered.” (Id. at p. 240.)
The same is true here. Defendant resisted arrest when he sighted Officer Delery in
a marked squad car. He then evaded Officer Aride, who chased him on foot and ordered
him to stop. Defendant was warned that search dogs would be used but did not surrender
to Officer Miller and his canine, despite warnings from the P.A. system that the dog
would be unleashed. Sergeant Sola warned defendant that officers would use “clear out”
gas and a Taser if he resisted, but he did not give himself up. After the “clear out” gas
was deployed, Officer Fitzsimmons tased defendant, and defendant still refused to
comply. Nor did he comply when Officer Roca tased him a few minutes later. At each
juncture, defendant had the opportunity to surrender himself and end the pursuit. He
decided not to do so repeatedly, and that conduct renders him more culpable than a
person resisting only one officer. Given the facts, we cannot conclude the trial court
erred in imposing concurrent sentences.3
3 We do not address defendant’s argument that the multiple victim exception does
not apply here. Under the multiple-victim exception to section 654, “even though a
defendant entertains but a single principal objective during an indivisible course of
conduct, he may be convicted and punished for each crime of violence committed against
a different victim.” (People v. Ramos (1982) 30 Cal.3d 553, 587, reversed on other
grounds in California v. Ramos (1983) 463 U.S. 992.) In this case, defendant did not
meet the threshold requirement of entertaining a single objective in an indivisible course
of action, so it is unnecessary to decide whether the exception would apply.
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Calculation of Custody and Conduct Credits
Defendant was awarded 603 days credit for presentence custody and 90 days of
conduct credit for a total of 693 days. Defendant represents that he filed a postjudgment
ex parte motion to correct fines and presentence custody credits on June 28, 2013,
disputing the trial court’s calculations. The purported motion was filed subsequent to the
March 14, 2013 notice of appeal in the instant case, and any order denying the motion
would have been made thereafter. A postjudgment order denying modification of the
custody credits awarded is an appealable order. (People v. Salazar (1994) 29
Cal.App.4th 1550, 1557.) It does not appear defendant filed an appeal from the denial of
his postjudgment motion for additional credits. We decline to reach the merits of the
contention, as that issue is not properly before this court in this appeal.4
DISPOSITION
The judgment is affirmed.
KRIEGLER, J.
We concur:
TURNER, P. J. MOSK, J.
4 We denied defendant’s February 6, 2014 motion to augment the record on appeal
to include the clerk’s transcript of the trial court’s proceedings on his ex parte motion to
correct fines and presentence custody credits by separate order.
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