California Cases June 16, 2020: People v. Warren

Case Description

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court , rule 8.1115(a) , prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published , except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. NA030761)

APPEAL from an order of the Superior Court of Los Angeles County, William C. Ryan, Judge. Affirmed.

James Koester, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Senior Assistant Attorney General, Noah P. Hill and Nancy Lii Ladner, Deputy Attorneys General, for Plaintiff and Respondent.

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Timothy Warren was convicted in 1997 of battery with serious bodily injury (Pen. Code, § 243, subd. (d)) and resisting, delaying or obstructing a peace officer in the discharge of his duties with a special finding he had attempted to remove the officer's firearm (§ 148, subd. (d)) and sentenced as a third strike offender. The superior court subsequently found Warren ineligible for resentencing under the Three Strikes Reform Act (Proposition 36) (§ 1170.126) because battery with serious bodily injury is a serious felony (§§ 1170.126, subd. (e)(1), 1192.7, subd. (c)(8)) and, when resisting or obstructing arrest, Warren had intended to cause great bodily injury to the officers (§§ 1170.126, subd. (e)(2), 667, subd. (e)(2)(C)(iii)), both of which are disqualifying factors. On appeal from the order denying his petition for recall of sentence, Warren contends the superior court violated the prohibition against multiple punishments for a single criminal act because, in finding he intended to cause great bodily injury while resisting or obstructing the officers, the court relied, in substantial part, on the fact he had punched the first officer he encountered with sufficient force to cause serious injury, the basis for his aggravated battery conviction. We affirm.

1. Warren's Commitment Offenses

Long Beach Police Officers Richard Armond and Matthew Gjersvold encountered Warren while investigating a recent assault in the early morning of December 17, 1996. Because he matched the description of the suspect, the officers attempted to

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speak to Warren. They initially asked Warren his name. Warren replied, "Jim," and continued walking. When the officers asked his last name, Warren began to run.

Officer Armond chased Warren on foot. Warren stopped, hid behind a trash can in an alley and threw small sandbags at Armond. When it appeared Armond may have drawn his gun, Warren yelled, "You are going to have to shoot me; I'm not going back." Warren resumed running, and Armond continued to give chase. Warren suddenly stopped, turned and struck Armond in the face with his fist. The injury to Armond's eye required stitches.

Long Beach Police Officer Freaman Potter arrived at the scene as Officer Armond was pursuing Warren, and he and Gjersvold joined the chase. Gjersvold and Potter caught Warren and tried to restrain and handcuff him. As they struggled, Warren reached out and took hold of Potter's gun with both hands, attempting to yank it from its holster. Potter held onto the gun and yelled, "He's got his hands on my gun." Warren then reached backward and tried to grab Gjersvold's gun. Gjersvold spun away and kept control of the gun. As the men fought, Warren kept shouting that the officers were going to have to kill him. The officers finally wrestled Warren to the ground and arrested him. Potter suffered a sprained right wrist.

2. Warren's Conviction , Sentence and Subsequent Petition for Resentencing Under Proposition 36

In October 1997 Warren was convicted following a jury trial of battery upon a police officer (Officer Armond) causing serious bodily injury (§ 243, subd. (d)) and willfully obstructing or resisting an officer in the discharge of his duty, with a true finding on the special allegation he had attempted to remove a

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firearm from the officer (Officers Gjersvold and Potter) (§ 148, subd. (d)). The trial court found true that Warren had suffered two prior serious felony convictions (robberies) within the meaning of both the three strikes law and section 667, subdivision (a). The court imposed consecutive three strikes sentences of 25 years to life, plus 10 years for the section 667, subdivision (a), serious felony enhancements. This court affirmed the judgment on appeal. ( People v . Warren (Feb. 23, 1999, B119074) [nonpub. opn.].)

On November 3, 2014 Warren petitioned for recall of his sentence under Proposition 36, approved by the voters on November 6, 2012, which was intended to "[r]estore the Three Strikes law to the public's original understanding by requiring life sentences only when a defendant's current conviction is for a violent or serious crime" and to permit "repeat offenders convicted of non-violent, non-serious crimes like shoplifting and simple drug possession [to] receive twice the normal sentence instead of a life sentence." (Voter Information Guide, Gen. Elec. (Nov. 6, 2012) text of Prop. 36, § 1, p. 105.)

As part of its goal of limiting indeterminate life sentences to serious or violent felony offenders, Proposition 36 added section 1170.126, which permits inmates previously sentenced to life terms under an earlier version of the three strikes law to petition to recall their sentences and, if eligible for relief, to be resentenced to the term that would have been imposed for their crime under the new sentencing provisions. (§ 1170.126, subd. (a).)

Eligibility for resentencing depends on several factors. An inmate will be denied resentencing if (1) the current offense was serious or violent; (2) the prosecution establishes one of the

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four disqualifying exceptions to resentencing under Proposition 36; or (3) the superior court determines, in its discretion, that resentencing the inmate would pose an unreasonable risk of danger to public safety. (§ 1170.126, subds. (e) & (f).) One of the disqualifying exceptions is if, "[d]uring the commission of the current offense, the defendant used a firearm, was armed with a firearm or deadly weapon, or intended to cause great bodily injury to another person." (§§ 1170.126, subd. (e)(2), 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii).)

The superior court denied Warren's Proposition 36 petition with prejudice, finding he was ineligible for resentencing because one of his commitment offenses, battery with serious bodily injury, was a serious felony.

We reversed and remanded for further proceedings in People v . Warren (Nov. 10, 2015, B261600) [nonpub. opn.], explaining, while Warren's appeal was pending, the Supreme Court in People v . Johnson (2015) 61 Cal.4th 674, 688 ( Johnson ) held Proposition 36 "requires an inmate's eligibility for resentencing to be evaluated on a count-by-count basis. So interpreted, an inmate may obtain resentencing with respect to a three-strikes sentence imposed for a felony that is neither serious nor violent, despite the fact that the inmate remains subject to a third strike sentence of 25 years to life." Under Johnson , therefore, Warren was entitled to be resentenced as a second strike offender for his section 148, subdivision (d), resisting-or-obstructing-an-officer conviction if he satisfied all the criteria set forth in section 1170.126, subdivision (e), unless, pursuant to section 1170.126, subdivision (f), the superior court

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determined that resentencing Warren "would pose an unreasonable risk of danger to public safety."

3. Warren's Renewed Petition and the Court's Finding of Ineligibility for Resentencing

On February 26, 2016 the superior court issued an order to show cause why Warren should not be resentenced as a second strike offender on his section 148, subdivision (d), conviction. The People filed an opposition. Following an eligibility hearing, the court on September 24, 2018 issued an eight-page memorandum of decision finding beyond a reasonable doubt that Warren was not eligible for resentencing because he intended to inflict great bodily injury during the commission of the offense.

Citing relevant authority, the superior court explained the intent to cause great bodily injury may be inferred from the defendant's conduct and the circumstances attending the act, even when the defendant was not found to have actually inflicted great bodily injury. Here, the court found, Warren threw sandbags at Officer Armond and punched him in the face, causing significant injury to Armond's right eye requiring medical treatment. In addition, Warren struggled with Officers Gjersvold and Potter, making clear attempts to take each officer's gun; and Gjersvold and Potter needed to use physical force to keep Warren from gaining control of their weapons. The court concluded Warren's "actions and words make clear that [Warren] was willing to [do] anything [to] evade the officers and resist arrest, including caus[ing] great bodily injury to the officers.

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While [Warren] may have indicated that he would rather be shot than return to prison, his actions clearly indicated a willingness to cause bodily injury to the officers, whether or not he was also willing to sustain great bodily injury himself."

Following denial of his petition, Warren filed a timely notice of appeal.

As Warren argues, California law generally prohibits a single criminal act from being punished more than once. Section 654, subdivision (a), provides, "An act or omission that is punishable in different ways by different provisions of the 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." As the Supreme Court explained in People v . Corpening (2016) 2 Cal.5th 307, 316, "Where the same physical act accomplishes the actus reus requirement for more than one crime, that single act cannot give rise to multiple punishment." Accordingly, the Court held, when both robbery (of rare coins) and carjacking (of the van in which the coins had been loaded) were accomplished by means of a single forceful taking, the defendant could not be punished for both crimes: "Corpening's one-year robbery

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sentence, which was based on the same act as his carjacking sentence, cannot stand. Section 654 requires that the robbery sentence be stayed." ( Ibid .)

The one-act, one-punishment principle applies not only to determination of a defendant's initial sentence, but also to considerations relating to recidivist sentencing. Thus, as Warren notes, in People v . Pearson (1986) 42 Cal.3d 351 the Supreme Court considered a defendant who, with respect to two child victims, had been convicted of both statutory sodomy and lewd conduct based on a single act as to each victim. (The punishment for each of the lewd conduct convictions was stayed pursuant to section 654.) Rejecting the defendant's argument that the lewd conduct charges were necessarily included in the statutory sodomy counts, the Court held all four convictions were proper. However, the Court also observed with respect to potential sentencing enhancements for future criminal conduct, only one enhancement was permitted for a single criminal act: "[A] defendant's status as a repeat offender relates to the number of wrongful acts he committed, not to the number of his convictions. In keeping with our reason for using stays in multiple conviction situations, the defendant is penalized if he suffers enhancements based on stayed convictions. Thus to enhance a defendant's sentence because of a stayed conviction would constitute multiple punishment and is prohibited by section 654." ( Pearson , at p. 363.) Similarly, in People v . Vargas (2014) 59 Cal.4th 635, 637 the Supreme Court held two prior convictions arising out of a

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single act against a single victim cannot constitute two strikes under the three strikes law.

Although Warren's brief discussion of California's one-act, one-punishment jurisprudence is generally accurate, his contention the superior court's finding he intended to inflict great bodily injury while resisting arrest violates this principle fundamentally misapprehends the nature of the court's ruling. In finding Warren ineligible for resentencing on his conviction for resisting or obstructing an officer in the discharge of his or her duties, the court did not punish Warren for punching Officer Armond and seriously injuring him. Rather, the court

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considered Warren's conduct for which he was convicted in the aggravated battery count as one of several pieces of circumstantial evidence of his intent in committing the separate acts for which he was convicted in the resisting/obstructing count. It is entirely proper for the finder of fact to use evidence of one charged assaultive offense to prove the defendant's mental state when committing other assaultive offenses. ( People v . Ochoa (1998) 19 Cal.4th 353, 410 ["evidence of each assault could be used under Evidence Code section 1101, subdivision (b), to show defendant's mental state for each other assault, namely his intent"]; see People v . Villatoro (2012) 54 Cal.4th 1152, 1166 [Evidence Code section 1101, subdivision (b), "permits the admission of other crimes evidence to establish a material fact like intent"].)

The order denying the petition for recall of sentence is affirmed.

PERLUSS, P. J.

We concur:

SEGAL, J.

FEUER, J.