P. v. Gueyger CA3

Filed 4/22/13 P. v. Gueyger CA3
NOT TO BE PUBLISHED

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 This opinion has not been certified for publication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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE, C067862

Plaintiff and Respondent, (Super. Ct. Nos.
10F03226, 10F03260 &
v. 10F03449)

ERNESTO JOAQUIN GUEYGER et al.,

Defendants and Appellants.

Defendants Ernesto Gueyger and Rudy Ponce, along with

Sergio Bravo,1 stole cigarettes and snacks from a 7-Eleven store.

A jury found Gueyger and Ponce guilty of commercial burglary
(Pen. Code,2 § 459), and petty theft with a prior (§ 666).

Gueyger was the getaway driver; he led police on a high-speed

1 Bravo is not a party to this appeal. He was tried before a
separate jury and found guilty of commercial burglary and theft,
but, like Ponce, acquitted of robbery.
2 Further undesignated statutory references are to the Penal
Code.

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chase, rammed a patrol car, and fled again before the police

apprehended him. In addition to the burglary and theft charges,

Gueyger was also found guilty of robbery (§ 211), being an

accessory after the fact (§ 32), recklessly evading the police

(Veh. Code, § 2800.2), and assault with a deadly weapon (his

car) on a peace officer (§ 245, subd. (c)). Ponce had also

participated in the robbery of a different 7-Eleven store two

days before. As to that incident, the jury found him guilty of

robbery (§ 211) and petty theft with a prior (§ 666).

Gueyger and Ponce contend their convictions for petty

theft with a prior (§ 666) must be reduced to misdemeanor

theft because a section 666 conviction now requires three prior

theft-related convictions, which neither defendant has suffered.

Further, they contend they did not personally waive jury on the

priors. The People concede that under a new amendment to

section 666, which is retroactive, the section 666 convictions

cannot stand and must be reduced to misdemeanor theft.

Gueyger further contends, and the People concede, that he
cannot be convicted of robbery and being an accessory after the

fact for simply driving away after the robbery, and that the

abstracts of judgment must be corrected to show that credits

were awarded pursuant to section 2933.1 rather than section

4019. As we will explain, we agree with the parties on these

points.

Gueyger also argues that section 654 bars a separate
sentence on reckless evading because it was part of a continuous

course of conduct, with the same intent and objective, as the

2
assault. Although the People do not agree with Gueyger on this

point, we do. Finally, we construe the notation on the abstract

of judgment that Gueyger‘s driver‘s license was suspended for

life to be acknowledgement that his license will be revoked by

the Department of Motor Vehicles pursuant to Vehicle Code

section 13351.5 because he used a motor vehicle as a deadly

weapon in the felony assault and we remand for the trial court

to add this explicit finding to the abstract of judgment.
FACTS

May 7, 2010 Crimes

On May 7, 2010, Ponce and another, much shorter,3 man

entered a 7-Eleven store at El Camino and Northgate shortly

before 4:00 a.m. They wanted to buy beer, but the clerk refused

to sell it to them because it was after 2:00 a.m. The shorter

man held his fist under his shirt at his waist and said he ―got

something.‖ The clerk feared he had a weapon. The two men

grabbed three cases of beer and ran off. Ponce returned and

grabbed cigarettes.
May 9, 2010 Crimes

On May 9, 2010, at about 3:40 a.m., Ponce and Bravo entered

a 7-Eleven store in Rio Linda. Gueyger was in a Jeep Cherokee

waiting outside. Ponce asked for cigarettes. The clerk claimed

3 Gueyger was initially charged as the second robber. After an
enhancement of the store video showed the height differential
between Ponce and the other robber was too great for the second
robber to be Gueyger, the trial court granted Gueyger‘s motion
for acquittal pursuant to section 1118.1 as to counts 9 and 10.
Only Ponce was found guilty of the May 7 robbery.

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Ponce pulled out a knife. Ponce and Bravo ran out with

cigarettes, soda, and snacks (counts 1, 2, 3 and 5).

Sacramento County Sheriff‘s Department Deputies Greg

Steindorf and Dennis Peyton responded to an aborted 911 call

from the store. When they reached the store, the clerk had run

into the street and was pointing down the street. The deputies

saw the tail lights of a vehicle moving away and accelerated to

catch up. They followed a Jeep Cherokee with no rear license

plate. When the Jeep turned left against a light, the deputies

activated their lights and siren.

The Jeep moved towards the right shoulder as if to pull

over, but it continued into a residential neighborhood. The

Jeep was traveling 50 miles per hour where the speed limit was

only 25; it swerved and failed to stay within its lane (count

6). It then went out of control, hit a parked car and continued

into a fence, bounced onto the curb, and stopped. The passenger

doors opened and the suspects fled. Steindorf followed the

fleeing suspects and caught Ponce (count 7).
While Peyton was still in the driver‘s seat of the patrol

car, Gueyger backed up the Jeep and rammed the patrol car;

Peyton felt the impact. Peyton heard the Jeep still

accelerating; Gueyger was still trying to maneuver the Jeep from

where it was ―boxed in.‖ Peyton got out of the patrol car and

approached the front passenger side of the Jeep. He struck the

window with his flashlight three times before it broke. Peyton
leaned into the Jeep just past his shoulder and pointed his gun

at Gueyger, telling him to stop the car or Peyton would kill

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him. Instead, Peyton felt the Jeep begin to accelerate and knew

he had to get out or he would be dragged, possibly under the

car. He got out of the way immediately and radioed for

assistance (count 8). Another deputy found Gueyger three or

four blocks away, covered in weeds.
DISCUSSION

I

Reduction of Felony Petty Theft with a Prior (§ 666)

to Misdemeanor Theft (§ 484)

Both Gueyger and Ponce contend their convictions for petty

theft with a prior must be reduced to misdemeanor theft because

section 666 now requires three prior theft-related convictions

and Gueyger has only two and Ponce one. The People concede that

the change in the law is retroactive and defendants are legally

entitled to the benefit of the change.

A. The Law

At the time Gueyger and Ponce committed the present

offenses, section 666 provided:
―Every person who, having been convicted of petty theft,

grand theft, auto theft under Section 10851 of the Vehicle Code,

burglary, carjacking, robbery, or a felony violation of Section

496 and having served a term therefor in any penal institution

or having been imprisoned therein as a condition of probation

for that offense, is subsequently convicted of petty theft, then

the person convicted of that subsequent offense is punishable by
imprisonment in the county jail not exceeding one year, or in

the state prison.‖

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 Effective September 9, 2010,4 Assembly Bill No. 1844 (2009–

2010 Reg. Sess.), the Chelsea King Child Predator Prevention Act

of 2010 (the Act), amended section 666 to provide, in pertinent

part:

―(a) Notwithstanding Section 490 [specifying the punishment

for petty theft], every person who, having been convicted three

or more times of petty theft, grand theft, auto theft under

Section 10851 of the Vehicle Code, burglary, carjacking,

robbery, or a felony violation of Section 496 and having served

a term therefor in any penal institution or having been

imprisoned therein as a condition of probation for that offense,

is subsequently convicted of petty theft, then the person

convicted of that subsequent offense is punishable by

imprisonment in the county jail not exceeding one year, or in

the state prison.‖5 (Italics added.)

In People v. Vinson (2011) 193 Cal.App.4th 1190 (Vinson),

the court considered whether the amendment to section 666 was

retroactive. The court followed In re Estrada (1965) 63 Cal.2d
740, 748, which held, ―where the amendatory statute mitigates

4 We note that the amendment to section 666 became effective
almost a month before the People filed the information in this
case on October 5, 2010.
5 New subdivision (b) of section 666 provides for imprisonment
in the county jail or state prison upon conviction of petty
theft with one prior theft-related conviction and period of
incarceration for persons who are required to register as sex
offenders or who have suffered a prior violent or serious felony
conviction under the three strikes law.

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punishment and there is no saving clause, the rule is that the

amendment will operate retroactively so that the lighter

punishment is imposed.‖ The Vinson court reasoned that the

amendment to section 666 ―had the effect of mitigating

punishment by raising the level of recidivism required before a

defendant can be sentenced to state prison.‖ (Vinson, supra,

193 Cal.App.4th at p. 1199.) Applying the amendment

retroactively was also consistent with the legislative intent in

passing the Act ―to save money and space in order to partially

offset the higher costs and inmate population occasioned by

increasing sentences for sexual predators.‖ (Vinson, supra, at

p. 1199.) The court explained: ―In light of the concerns

expressed in the legislative history about prison overcrowding

and the costs associated with the act, and the fact the cost

avoidance achieved by shifting some nonviolent, non-sex-offender

recidivists to the county correctional level will not completely

offset the new costs [citation], it would make no sense to

conclude the section 666 amendment should apply only
concurrently with the remaining provisions of the act, i.e.,

prospectively.‖ (Ibid.)

B. Analysis

We find Vinson persuasive as to the retroactive effect of

the amendment to section 666. Therefore, we agree with the

parties that Gueyger and Ponce are entitled to the mitigating

effects of the amendment to section 666. The information
alleged Gueyger had suffered two theft-related priors, petty

theft and vehicle theft, and served a term for each, while Ponce

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had suffered only one theft-related prior, grand theft, and had

served a term for it.6 The court found these allegations true.

Since neither defendant had suffered three theft-related

priors as now required by section 666, their convictions for

that offense cannot stand. We shall modify the judgment to

reduce count 2 for Gueyger and counts 3 and 11 for Ponce to

misdemeanor theft (§ 484). (See People v. Cortez (1994) 24

Cal.App.4th 510 [reducing conviction for section 666 to section

484 where no evidence defendant served a term in a penal

institution as required by section 666].)

Since we are reducing defendants‘ section 666 convictions

to misdemeanor theft, we need not address their contention that

such a reduction is required because the trial court failed to

take personal waivers of the right to a jury on the allegations

of the theft-related priors.7

II

Accessory After the Fact

Gueyger contends he cannot be convicted of both robbery and
being an accessory after the fact because the latter charge is

based on the facts constituting part of the robbery, driving

6 The probation report indicates Gueyger sustained a juvenile
adjudication for robbery, which would make him chargeable under
section 666, subdivision (b). However, this prior adjudication
was neither alleged nor found true.
7 A personal waiver is, however, required. (See Cal. Const.,
art. I, § 16.)

8
away from the location of the robbery. He contends count 6 must

be reversed. The People concede error and we agree.

A. The Law

California law is divided over whether a person can be

convicted as both a principal and an accessory to the same

felony. (In re Eduardo M. (2006) 140 Cal.App.4th 1351, 1358

(Eduardo M.).) Here, as in Eduardo M., we need not resolve the

conflict in order to arrive at our holding.

In Eduardo M., a minor who had aided and abetted assaults

was convicted both as a principal and as an accessory based on

his flight after the crime. The appellate court found it

unnecessary to resolve the conflict over whether conviction as

both a principal and an accessory was proper, holding ―only that

a defendant who is convicted as a principal cannot also be

convicted as an accessory solely on the basis of his immediate

flight from the crime scene and his subsequent denials of his

own involvement, even if that conduct incidentally helps other

principals to escape.‖ (Eduardo M., supra, 140 Cal.App.4th at
p. 1359.) The court reasoned, ―Nearly all felons, whether

acting alone or in concert with others, intend before, during,

and after committing the felony to escape being apprehended and

punished for their crimes. Attempting to escape after

committing a felony is an inherent part of committing the

felony, involving in most cases acting on a previously formed

intent. Thus, escaping does not create greater criminal
culpability. Indeed, although Penal Code section 32 does not

expressly so state, California long has recognized that a

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principal to a felony cannot become an accessory to that felony

by attempting to make his own escape. [Citations.]‖ (Eduardo

M., supra, at p. 1360.)

―If a felon cannot be subjected to additional liability as

an accessory for fleeing and denying his guilt, then the same

rule should apply to a principal whose flight and denials have

the incidental effect of helping a coprincipal to escape.

Unlike when third persons who are not principals to a felony

intentionally aid the felon‘s escape after the crime is

completed, a principal who flees and thereby incidentally

assists another principal in escaping does not thereby expand

the circle of criminality beyond the original participants.

Moreover, because immediate flight and denials of involvement

are such ubiquitous features of criminal conduct, they are too

equivocal to constitute separate acts supporting an inference

that the fleeing and guilt-denying felon harbored a separate

intent to aid the escape of his coprincipals. For a principal

to be convicted as an accessory, which requires both separate
acts and intent, the principal must do something more than flee

and deny his own guilt.‖ (Eduardo M., supra, 140 Cal.App.4th at

p. 1361.)

B. Analysis

Here, Gueyger fled in the Jeep with Ponce and the others

immediately after the robbery at the 7-Eleven store. There is

no evidence of any other act that would support an accessory
charge. Under Eduardo M., with which we agree, Gueyger‘s

accessory conviction must be reversed.

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 III

Section 654

Gueyger contends his sentence on reckless evasion of the

police, count 7, must be stayed under section 654 because both

the evading and the assault on a peace officer arose from the

same continuous course of conduct and had the same criminal

intent and objective--to get away. We agree.

A. The Law

Section 654 provides in relevant 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.‖

―The ‗act‘ necessary to invoke section 654 need not be an

act in the ordinary sense of a separate, identifiable, physical

incident, but may instead be a ‗course of conduct‘ or series of

acts violating more than one statute and comprising an

indivisible transaction punishable under more than one statute.
[¶] The divisibility of a course of conduct depends upon the

intent and objective of the defendant. If all the offenses are

incidental to one objective, the defendant may be punished for

any one of them, but not for more than one. On the other hand,

if the evidence discloses that a defendant entertained multiple

criminal objectives which were independent of and not merely

incidental to each other, the trial court may impose punishment
for independent violations committed in pursuit of each

objective even though the violations shared common acts or were

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parts of an otherwise indivisible course of conduct.

[Citations.] The principal inquiry in each case is whether

the defendant‘s criminal intent and objective were single or

multiple. Each case must be determined on its own facts.

[Citations.]‖ (People v. Liu (1996) 46 Cal.App.4th 1119, 1135–

1136.)

There is an exception to section 654 where there are

multiple victims of violent crimes. ―[S]ection 654 does not

apply to crimes of violence against multiple victims.‖ (People

v. King (1993) 5 Cal.4th 59, 78.) As the purpose of section 654

―is to insure that the defendant‘s punishment will be

commensurate with his criminal liability,‖ when he ―commits an

act of violence with the intent to harm more than one person or

by means likely to cause harm to several persons,‖ his greater

culpability precludes application of section 654. (Neal v.

State of California (1960) 55 Cal.2d 11, 20—21, disapproved on

another point in People v. Correa (2012) 54 Cal.4th 331.)

―A defendant may properly be convicted of multiple counts for
multiple victims of a single criminal act only where the act

prohibited by the statute is centrally an ‗act of violence

against the person.‘ [Citation.]‖ (Wilkoff v. Superior Court

(1985) 38 Cal.3d 345, 351.)

―‗―A trial court‘s implied finding that a defendant

harbored a separate intent and objective for each offense will

be upheld on appeal if it is supported by substantial evidence.‖
[Citation.]‘ [Citation.]‖ (People v. Sanchez (2009) 179

Cal.App.4th 1297, 1310.)

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 B. Analysis

Here, the trial court did not make express findings with

respect to the application of section 654. (See Cal. Rules of

Court, rule 4.424.) The issue of section 654 did not arise at

sentencing with respect to the evading and assault charges.

We consider whether there is substantial evidence to support an

implied finding of a separate intent and objective.

The evidence supports Gueyger‘s position that he harbored

the same intent and objective during both the evading and the

assault. Deputy Peyton testified that after the Jeep

temporarily stopped on the curb, immediately before it rammed

the patrol car and then took off with Peyton still partially

inside,8 he heard the Jeep accelerating. Peyton testified

Gueyger was consistently trying to maneuver the vehicle to get

away. There was no evidence that Gueyger stopped trying to get

away in order to harm Peyton; the only evidence was that Gueyger

was trying to get away the entire time.

The People do not offer a separate intent and objective for
the assault. Rather, they argue the multiple victim exception

for acts of violence applies. The People argue Gueyger

committed acts of violence against multiple people--Peyton and

the ―other people‖ whose safety Gueyger disregarded while

fleeing.

8 The People argued either act constituted assault.

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 Certainly section 245, subdivision (c), which requires

assault with a deadly weapon other than a firearm or by means

likely to produce great bodily injury, qualifies as an act of

violence. Felony or reckless evading, however, has been held

not to be an act of violence for purposes of the multiple victim

exception of section 654. (People v. Garcia (2003) 107

Cal.App.4th 1159, 1163.) Indeed, because subdivision (b) of

Vehicle Code section 2800.2 defines the term ―willful and wanton

disregard for the safety of persons or property‖ very broadly to

include any flight from an officer in which three of certain

traffic violations are committed (some of which can be committed

without endangering human life), Vehicle Code section 2800.2 is

not an inherently dangerous felony for purposes of second degree

felony murder. (People v. Howard (2005) 34 Cal.4th 1129, 1137-

1139.)

The trial court erred in failing to stay Gueyger‘s sentence

on count 7, reckless evading, pursuant to section 654.

IV
Lifetime Suspension of Driving Privileges

A. Background

The probation report recommended that Gueyger‘s driving

privileges be revoked for life pursuant to Vehicle Code section

13351.5. At sentencing, the trial court did not mention driving

privileges, but indicated it would impose the terms recommended

by the Probation Department with certain modifications. The
abstract of judgment indicates Gueyger‘s driving license is

suspended for life pursuant to Vehicle Code section 13351.5.

14
 Gueyger contends it was improper for the trial court to

suspend his driving privileges. He contends such an order was

not part of the oral pronouncement of sentence and it is an

unauthorized sentence because only the Department of Motor

Vehicles (DMV) can suspend driving privileges. Because the

order is unauthorized, Gueyger argues, he has not forfeited the

claim by failing to object at sentencing.

B. The Law

Vehicle Code section 13351.5 provides in part: ―(a) Upon

receipt of a duly certified abstract of the record of any court

showing that a person has been convicted of a felony for a

violation of Section 245 of the Penal Code and that a vehicle

was found by the court to constitute the deadly weapon or

instrument used to commit that offense, the department

immediately shall revoke the privilege of that person to drive a

motor vehicle. [¶] (b) The department shall not reinstate a

privilege revoked under subdivision (a) under any

circumstances.‖
A Vehicle Code section 13351.5 revocation is a mandatory

administrative function. (In re Grayden N. (1997) 55

Cal.App.4th 598, 604 (Grayden N.).) ―Simply put, the ... court

is bound, under the statute, to report to the [DMV] the true

finding [defendant] committed an assault with a deadly weapon in

violation of Penal Code section 245, subdivision (a), and the

true finding the weapon ... used was a vehicle.‖ (Grayden N.,
supra, 55 Cal.App.4th at p. 604.) Driving is a privilege, not a

right, and license revocation is a civil, not a criminal,

15
sanction. (People v. Linares (2003) 105 Cal.App.4th 1196,

1199.) The DMV, not the court, has the power to revoke a

driver‘s license pursuant to Vehicle Code section 13351.5.

(Grayden N., supra, at p. 604.)

C. Analysis

The trial court incorporated the terms recommended by the

probation report, except those it modified, in its oral

pronouncement of sentence. Thus, the reference to Vehicle Code

section 13351.5 was part of the sentence. We construe the trial

court‘s order as an acknowledgement that Gueyger‘s driver‘s

license would be revoked by the DMV upon receipt of the

certified abstract. The trial court, however, failed to include

in the abstract the precise information the DMV needs to revoke

Gueyger‘s license, namely, that Gueyger used a vehicle to commit

the section 245 felony. Since this case must otherwise be

remanded for correction of the abstract, upon remand the court

should make the determination called for by Vehicle Code section

13351.5.
VI

Correction of Abstract

Both Gueyger and Ponce properly received only 15 percent

conduct credits pursuant to section 2933.2 due to their robbery

convictions. Both abstracts, however, indicate local conduct

credits were awarded pursuant to section 4019. Gueyger

contends, and the People concede, the abstracts should be
corrected. We agree and shall order correction.

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 DISPOSITION

Gueyger‘s conviction on count 6, accessory after the fact,

is reversed. Gueyger‘s conviction on count 2 and Ponce‘s

convictions on counts 3 and 11, petty theft with a prior, are

reduced to convictions for section 484, misdemeanor theft.

Gueyger‘s sentence on count 7, reckless evading, is stayed

pursuant to section 654. We further remand the matter for

correction of the abstracts of judgment to show that local

conduct credits for both defendants are awarded pursuant to

section 2933.1, and for the trial court to make the express

finding that Gueyger used a vehicle as a deadly weapon in the

felony assault, count 8. As so modified, the judgment is

affirmed. The trial court is directed to prepare an amended

abstract of judgment for both Gueyger and Ponce to reflect these

modifications and to forward certified copies of the amended

abstracts to the Department of Corrections and Rehabilitation

and the Department of Motor Vehicles.

DUARTE , J.

We concur:

NICHOLSON , Acting P. J.

HULL , J.

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