Filed 2/21/19

                            CERTIFIED FOR PUBLICATION


                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                      DIVISION ONE

                                STATE OF CALIFORNIA



 THE PEOPLE,                                       D073313

          Plaintiff and Respondent,

          v.                                       (Super. Ct. No. SCN371164 )

 JOSE ANTONIO JIMENEZ,

          Defendant and Appellant.


        APPEAL from a judgment of the Superior Court of San Diego County, Richard S.

Whitney, Judge. Affirmed and remanded for resentencing.

        Jared G. Coleman, under appointment by the Court of Appeal, for Defendant and

Appellant.

        Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Kelley

Johnson, Deputy Attorneys General for Plaintiff and Respondent.

        Jose Antonio Jimenez led peace officers on a high-speed chase with his four- and

six-year-old daughters in the car. At one point during the pursuit, he drove straight

toward a patrol vehicle in an apparent game of chicken. The deputies were forced to veer
out of the way at the last moment to avoid collision. After a jury trial, the court

sentenced Jimenez to a total term of 13 years, four months. On appeal, Jimenez contends

the prosecution's failure to disclose a purportedly exculpatory police report violates

Brady v. Maryland (1963) 373 U.S. 83 (Brady), and the trial court's denial of his motion

for a new trial based on that newly discovered evidence was reversible error. He also

contends the imposition of separate punishments for the counts of assault and evasion of

a peace officer violates Penal Code section 654.1 We reject these claims but conclude

Jimenez is entitled to remand for resentencing to allow the trial court to exercise its

discretion to determine whether to strike the five-year enhancement imposed under

sections 667, subdivision (a)(1) and 1385, which were amended after Jimenez's

sentencing, effective January 1, 2019. In all other respects, we affirm.

                                     BACKGROUND

       A. Charges

       Jimenez was charged with assault with a deadly weapon on a peace officer

(count 1, Pen. Code, § 245, subd. (c)), two counts of felony child abuse (counts 2, 3;

Pen. Code, § 273a, subd (a)), and evading a peace officer with reckless driving (count 4,

Veh. Code, § 2800.2, subd. (a)). The information alleged he had two prison prior

convictions (Pen. Code, §§ 667.5, subd. (b), 668), one prior serious felony conviction

(Pen. Code, §§ 667, subd. (a)(1), 668, 1192.7, subd. (c)), and one prior strike conviction

(Pen. Code, §§ 667, subd. (b)-(i), 668, 1170.12).



1      Unless otherwise specified, further statutory citations are to the Penal Code.
                                              2
       B. Jury Trial

       A total of four deputies of the Fallbrook station of the San Diego County Sheriff's

Department were involved in the incident. Deputies F. and B. were in one vehicle, and

Deputies P. and A. were in a second vehicle. At the time of the incident, Deputy A. was

Deputy P.'s training officer and remained his training officer for a total duration of

approximately two weeks. At trial, the prosecution elicited testimony from three of the

deputies.2

       On March 22, 2017, Deputies F. and B. were driving a marked patrol car and

recognized Jimenez, who had an active felony no bail warrant for his arrest for a

probation violation. The deputies activated the patrol car's lights and sirens and

attempted to conduct a traffic stop. Although Jimenez initially pulled into a parking lot,

he did not stop; instead, he pulled into traffic on a busy street without yielding, causing

another car to brake suddenly to avoid collision. He led the deputies on a high-speed

pursuit, accelerating to 50 and 55 miles per hour on streets with speed limits of 25 and

35 miles per hour, speeding through numerous intersections and stop signs without

slowing or stopping, again requiring another vehicle to slam its brakes to avoid a

collision. At one point, he was speeding so fast that he was able to "catch air" after

coming to a dip in the road.




2      Deputy B., who had been transferred from the Fallbrook station, did not testify at
trial.

                                              3
       A second patrol vehicle, a marked SUV driven by Deputy P., attempted to assist

during the pursuit but was unable to catch up. Deputy A. was a passenger in that second

patrol vehicle. Deputy P. was able to see the vehicles driven by Jimenez and Deputy F.

for about one-third to one-half of the pursuit, but then lost sight of them. He took an

alternate route and tried to rejoin the pursuit based on information received from dispatch

regarding Jimenez's location. As Deputy P. was traveling with lights and sirens

activated, he saw Jimenez turn a corner and approach the SUV from the opposite

direction. Although there was room for two vehicles to travel down the street without

colliding, Jimenez drove into the opposing lane of traffic where the patrol SUV was

driving. All three testifying deputies opined that Jimenez was driving approximately

40 miles per hour when his vehicle approached the SUV. The SUV had to swerve out of

the way at the last moment to avoid a head-on collision. Deputy P. testified that they

were three to four feet apart when he made this maneuver, whereas Deputy A. said they

were about five to six feet away.

       Eventually, Jimenez stopped abruptly in front of an apartment building. With no

time to stop completely, the pursuing patrol car driven by Deputy F. collided with

Jimenez's vehicle. Jimenez fled his vehicle but then turned after taking about 15 steps

and informed deputies that his children were in the car. His daughters, ages four and six,

were found in the front seat. There were no boosters or child seats in the vehicle.

Deputies P. and A. spoke with the girls, who appeared upset. Both girls said they were

scared.



                                             4
       Deputies found an open can of beer in the front center console area, about three-

quarters full, and two other unopened cans of beer in the back seats. The prosecution

introduced photographs depicting damage to the front of the patrol car and the rear

bumper of Jimenez's vehicle sustained in the collision at the end of the pursuit. The

photographs depicted dirt and mud on the patrol car that deputies testified was deposited

during the pursuit when they followed Jimenez's vehicle through a large mud puddle.

       In closing arguments to the jury, Jimenez's counsel emphasized that the only

witnesses who testified at trial were the three deputies. Counsel questioned their

credibility because they were the only witnesses to the charged offenses and were also

victims in the charged evasion and assault. Counsel suggested the deputies' testimony

was coordinated because of the similarities in their descriptions, and that they were

biased because they "are all invested in the case. They are claiming that they are not just

witnesses but a victim to an assault."

       After an hour of deliberation, the jury returned guilty verdicts on all counts.

       C. Postverdict Proceedings

       At the sentencing hearing, Jimenez admitted he had two prison priors (§ 667.5,

subd. (b)), one prior serious felony conviction (§§ 667, subd. (a)(1), 1192.7, subd. (c)),

and one prior strike conviction (§§ 667, subd. (b)-(i), 1170.12).

       Jimenez filed a motion to dismiss the strike allegation under People v. Superior

Court (Romero) (1996) 13 Cal.4th 497 (Romero). At the hearing, the trial court invited

the parties to provide supplemental briefing addressing, among other things, whether



                                              5
Jimenez had severed the gang ties that were apparent from his prior convictions.3 In

response, the prosecution submitted a previously undisclosed police report authored by

Deputy A. documenting a potentially gang-related shooting incident that occurred just

weeks before the evasion incident. The police report, which was sealed by the trial court,

identified Jimenez as a documented gang member wanted on a probation violation and

described video surveillance footage depicting Jimenez's presence when the shooting

incident occurred. The report indicated there was probable cause to arrest another

individual involved in the shooting, but did not indicate there was probable cause for

Jimenez's arrest in connection with the shooting. There is no indication in the police

report that anyone was injured in the shooting. As the People explained in their

supplemental sentencing brief: "On February 10, 2017, [Jimenez] was present at a

shootout between two known VFL gang members. After the shootout, he got into a car

and left with one of them. Although he was not charged in [that] case, he clearly is

demonstrating that he has not left the gang lifestyle behind."

       In response, Jimenez sought a continuance to file a new trial motion, arguing that

"the last minute submission . . . of a prejudicial, completely unreliable, police

report . . . noting Mr. Jimenez was allegedly present at a shooting with gang implications

less than [six] weeks before the offenses occurred in the case pending sentencing, and

authored by the same law enforcement officer [the prosecution] designated as their




3      Prior to trial, Jimenez had filed an unopposed motion in limine to exclude any
reference to gangs. That motion was granted.
                                              6
'investigating officer' who sat through the entire trial, and who testified to all charges,

raises grave constitutional concerns and necessitates a continuance to properly pursue a

motion for new trial."4

       Jimenez then filed a motion for a new trial under section 1181, subdivision (8),

arguing the new evidence was "quintessential bias, interest, or other motive evidence":

           "The police report tends to disprove the truthfulness of Officer [A.'s]
           trial testimony because it directly impacts his 'credibility or
           believability' which jurors 'must judge.' [Citations.] CALCRIM
           [No.] 226 instructs jurors when 'evaluating a witness's testimony,
           you may consider anything that reasonably tends to prove or
           disprove the truth or accuracy of that testimony.' Jurors 'may
           consider' among other facts 'whether a witness's testimony was
           influenced by bias or prejudice . . . or a personal interest in how the
           case is decided.' [Citation.]

           "Officer [A.'s] February 14, 2017 report indicates that he knows who
           Mr. Jimenez is but has no probable cause to arrest [him] for the
           incident. The reasonable inference that any juror could have easily
           made is that if the officer could not arrest Mr. Jimenez for the
           February incident[,] he would want to make sure that Mr. Jimenez is
           convicted for the March charges."

Jimenez further argued the new evidence would render a different result probable on

retrial: "If the jurors had known that the officers were unable to 'get' Mr. Jimenez for the

February incident, it is probable that at least one juror would have voted not guilty."

Finally, he argued a new trial was warranted because the evidence constituted

exculpatory Brady evidence and the prosecution's failure to disclose it earlier violated his

constitutional right to a fair trial.




4       Deputy A. was designated as the prosecution's investigating officer for purposes of
trial during a pretrial motions hearing.
                                               7
       The prosecution opposed Jimenez's motion for new trial, arguing the police report

was not Brady material because it was neither material nor exculpatory and further

arguing Jimenez did not meet his burden warranting a new trial because he did not

establish it was probable that at least one juror would have voted to find him not guilty

had the new evidence been presented. The police report involved an unrelated,

uncharged incident and did not reasonably give rise to an inference of bias on the part of

the investigating officer.

       The court denied Jimenez's motion for a new trial, concluding that the new

evidence was immaterial and irrelevant:

           "The defendant in this case . . . has not met [his] burden . . . that it's
           probable that at least one juror would have voted to find him not
           guilty had a police report been turned over of a prior unrelated
           investigation done by the detective involved in the case.

           "The prior police report is not material or relevant to the current case
           where the defendant had two children unrestrained in his car when
           he took police on the high[-]speed chase. The fact that the detective
           from the uncharged case was a passenger in the second police car in
           the pursuit does not give rise to any new material evidence.

           ". . . . Evidence which simply creates a conflict with the prima facie
           case made out by the prosecution, rather than contradicting the
           strongest evidence against the defendant, does not support a new
           trial motion."

       The trial court also denied Jimenez's Romero motion, noting that it was "a tough

issue," but that, "based on the totality of the circumstances, it would be inappropriate to

strike the prior" for the purposes of sentencing. The court then sentenced Jimenez to a

total term of 13 years, four months, which included a consecutive five-year term for the

prior serious felony conviction.

                                                8
                                        DISCUSSION

       A. Jimenez Has Not Established a Brady Violation

       Jimenez argues that the prosecution's failure to disclose the police report

constitutes a Brady violation that resulted in an unfair trial in violation of his

constitutional rights. We conclude Jimenez has not established a Brady violation because

he has not shown the undisclosed police report was favorable or material to his case.

           1. Legal Principles

       A criminal defendant has a due process right to pretrial discovery of information

favorable to his defense. (Brady, supra, 373 U.S. at p. 87.) The government has a

constitutional duty to disclose both exculpatory evidence that casts doubt on the

defendant's guilt and impeaching evidence that calls into question the credibility of

government witnesses. (Strickler v. Greene (1999) 527 U.S. 263, 280-282 (Strickler);

People v. Williams (2013) 58 Cal.4th 197, 256 [evidence is favorable if it helps the

defense or hurts the prosecution, as by impeaching a prosecution witness]; People v.

Salazar (2005) 35 Cal.4th 1031, 1048 (Salazar) [the prosecution's obligation under Brady

extends to impeachment evidence]; In re Pratt (1999) 69 Cal.App.4th 1294, 1312 [duty

to disclose evidence favorable to defendant extends to evidence reflecting on credibility

of witness].)

       The Brady rule extends to "evidence 'known only to police investigators and not to

the prosecutor.' " (Strickler, supra, 527 U.S. at pp. 280-281.) " '[T]he individual

prosecutor has a duty to learn of any favorable evidence known to the others acting on the

government's behalf in this case, including the police.' " (Id. at p. 281; Kyles v. Whitley

                                               9
(1995) 514 U.S. 419, 437 (Kyles).) The prosecutor's duty to disclose is ongoing;

"information that may be deemed immaterial upon original examination may become

important as the proceedings progress . . . ." (Pennsylvania v. Richie (1987) 480 U.S. 39,

60.)

        "There are three components of a true Brady violation: The evidence at issue must

be favorable to the accused, either because it is exculpatory, or because it is impeaching;

that evidence must have been suppressed by the State, either willfully or inadvertently;

and prejudice must have ensued." (Strickler, supra, 527 U.S. at pp. 281-282.)

"Prejudice, in this context, focuses on 'the materiality of the evidence to the issue of guilt

and innocence.' [Citations.] Materiality, in turn, requires more than a showing that the

suppressed evidence would have been admissible [citation], that the absence of the

suppressed evidence made conviction 'more likely' [citation], or that using the suppressed

evidence to discredit a witness's testimony 'might have changed the outcome of the trial'

[citation]. A defendant instead 'must show a "reasonable probability of a different

result." ' " (Salazar, supra, 35 Cal.4th at p. 1043.) "The requisite 'reasonable probability'

is a probability sufficient to 'undermine[] confidence in the outcome' on the part of the

reviewing court." (In re Sassounian (1995) 9 Cal.4th 535, 544 (Sassounian).)

        On appeal, the defendant bears the burden to establish the components of a Brady

violation. (Strickler, supra, 527 U.S. at pp. 289, 291.) We independently review whether

such a violation occurred but give "great weight to any trial court findings of fact that are

supported by substantial evidence." (People v. Letner and Tobin (2010) 50 Cal.4th 99,

176.)

                                              10
          2. Analysis

       Jimenez contends the failure to disclose, prior to trial, the police report authored

by Deputy A. detailing a shooting incident that occurred weeks before the charged

incident constitutes a Brady violation and deprived him of a fair trial. We assess each of

the three components of a Brady violation, starting first with the issue of suppression.

              a. Suppression of Evidence

       It is undisputed that the suppression component of Brady is met. The Attorney

General acknowledges "this report was in [the] prosecution's possession at the time of

trial because it was in the possession of law enforcement, even though the prosecutor was

not aware of the report until sentencing." Because suppression occurs when the

government withholds evidence either willfully or inadvertently (Strickler, supra,

527 U.S. at pp. 281-282), the report was suppressed within the meaning of Brady.

              b. Favorable Evidence

       Jimenez argues the report is favorable to him because it could have been used to

impeach Deputy A., to "show prior police bias against" Jimenez, and to attack the "good

faith" of the police investigation in the charged incident. Jimenez claims the report

constitutes "affirmative evidence of a police motive to coordinate and distort their

testimony to gain a conviction" and constitutes evidence of bias of a complaining witness

under People v. Uribe (2008) 162 Cal.App.4th 1457 (Uribe); Sassounian, supra,

9 Cal.4th 535; and U.S. v. Bagley (1985) 473 U.S. 667 (Bagley).

       The Attorney General disagrees, arguing that the report is not impeachment

evidence because it did not cast doubt on Deputy A.'s general veracity and could not have

                                             11
been used to attack the good faith of the investigation because the mere fact that the

deputy was aware of Jimenez due to his presence at a different offense is not enough to

show that Deputy A. lied or had motive or opportunity to fabricate his testimony against

Jimenez in the current trial.

       The police report Jimenez claims is impeachment evidence is not like the evidence

that was found to be discoverable as evidence of witness bias in the cases cited by

Jimenez. Uribe involved the videotape of a medical examination performed on a child

sexual assault victim. Defendant's expert declared the video undermined the

photographic evidence from the same examination and the prosecution expert's

conclusions regarding injury drawn therefrom. (Uribe, supra, 162 Cal.App.4th at

p. 1470; see id. at p. 1482 [concluding reversal and a new trial were warranted due to

Brady violation].) Sassounian involved a witness who had testified against the defendant

but later recanted his testimony. (Sassounian, supra, 9 Cal.4th at p. 542; see id. at p. 550

[concluding defendant did not establish he could have obtained a different result even in

the absence of the recanted testimony].) Bagley involved the government's failure to

disclose contracts signed by principal witnesses involved in an undercover investigation

of defendant, which contracts stated the government would pay money to the witnesses

commensurate with the information furnished. (Bagley, supra, 473 U.S. at pp. 671, 683-

684; see id. at p. 684 [remanding matter to appellate court for a determination whether

there is a reasonable probability that, had the inducement offered by the government to

the witnesses been disclosed to the defense, the result of the trial would have been

different].)

                                             12
         In contrast, here, the police report relates to a different, uncharged and unrelated

shooting incident. Although the report documents Jimenez's physical presence during the

incident, it draws no conclusions regarding his involvement, if any, other than as a

potential witness. The police report was authored by Deputy A., a testifying witness in

the instant case, but there is no indication the report constitutes false reporting, nor is

there independent evidence indicating Deputy A.'s dishonesty or embellishment of facts.

(Cf. Abbati v. Superior Court (2003) 112 Cal.App.4th 39, 59 [evidence that established a

" 'plausible factual foundation' " for allegations that a testifying officer was untruthful

could be used to impeach that officer and was therefore favorable and material under

Brady].) Given the collateral nature of the report and the absence of any plausible factual

foundation for allegations of Deputy A.'s bias or untruthfulness, we are unconvinced the

report had impeachment value under Brady.

         Even if we were to assume Jimenez established the undisclosed report was

favorable to his defense because of its impeachment value, we would reject his claim of

error because, as we next discuss, the evidence was not material within the meaning of

Brady.

                c. Materiality/Prejudice

         Jimenez argues that, had the police report been disclosed prior to trial, he would

have been able to convince at least one juror the police testimony was biased and not

sufficiently credible to support conviction:

            "Appellant's only defense was to undermine confidence [in] the
            highly coordinated testimony of the police witnesses. The assault
            charges were entirely based on police testimony. There was no

                                               13
          video footage of the incident because Fallbrook Sheriff's department
          did not have dash-board cameras or body cameras for its officers.
          [Citation.] The police were the only victims of appellant's assault—
          appellant did not collide with anyone, or hit any property during the
          high speed chase. [Citation.] There were no other witnesses and no
          calls to 911 associated with the incident. [Citation.]

          [¶] . . . [¶]

          "In the context of this coordinated police testimony, the evidence of
          prior police investigation and bias against appellant because of a
          prior shooting incident was critical evidence corroborating
          appellant's theory the police were not telling the truth about what
          had happened, and were coordinating an embellished story in order
          to charge appellant with assault with a deadly weapon.

          "Had the defense known of this prior incident it would have been
          able to more convincingly make the case for police bias. The
          police report could have been used during cross examination of
          [Deputy A.] to show that he was biased against appellant based on
          appellant's presence at a gang-related shooting."

       The Attorney General responds that Jimenez's theory is "farfetched and

speculative," and evidence in the case other than Deputy A.'s testimony, including the

testimony of Deputies F. and P. and circumstantial evidence including photographs taken

shortly after the pursuit ended, so strongly establishes the elements of the charged

offenses that it is not reasonably probable the result would have been different had

Jimenez used the police report to impeach Deputy A.'s testimony or otherwise bolster his

defense. We agree with the Attorney General.

       To establish materiality (and therefore prejudice), the defendant " 'must show a

"reasonable probability of a different result." ' " (Salazar, supra, 35 Cal.4th at p. 1043.)

"The requisite 'reasonable probability' is a probability sufficient to 'undermine[]

confidence in the outcome' on the part of the reviewing court. [Citations.] It is a

                                             14
probability assessed by considering the evidence in question under the totality of the

relevant circumstances and not in isolation or in the abstract. [Citation.] Further, it is a

probability that is, as it were, 'objective,' based on an 'assumption that the decisionmaker

is reasonably, conscientiously, and impartially applying the standards that govern the

decision,' and not dependent on the 'idiosyncrasies of the particular decisionmaker,'

including the 'possibility of arbitrariness, whimsy, caprice, "nullification," and the like.' "

(Sassounian, supra, 9 Cal.4th at p. 544.)

       Under this standard, we conclude Jimenez has not met his burden to establish a

reasonable probability of a different result. Jimenez claims he could have used the report

to attack the thoroughness or good faith of the police investigation, to demonstrate police

bias, and to undermine the credibility of Deputy A.'s testimony or to show he influenced

the testimony of the other deputies. None of these arguments is convincing. Jimenez

was not a suspect in a crime who had to be located or identified as part of any police

investigation. His identity was never in question, particularly because he was never out

of the lead officers' view and his two young daughters were sitting in his vehicle after he

finally pulled over. Jimenez's theory of police bias is purely speculative. (See People v.

Hoyos (2007) 41 Cal.4th 872, 922 (Hoyos), abrogated on another ground in People v.

McKinnon (2011) 52 Cal.4th 610, 641-642.) The mere fact that a deputy involved in the

instant pursuit—in the second responding patrol unit—previously investigated an

unrelated incident where Jimenez was present does not constitute evidence of police bias.

Nor is there anything in the police report that diminishes the deputies' credibility.

Jimenez's claims are so tenuous it is not reasonably probable that, had he used the police

                                              15
report at trial—whether to undermine the police investigation, impeach Deputy A.'s

testimony, or bolster his claim of police bias—the result would have been different.5

(Sassounian, supra, 9 Cal.4th at p. 543; Salazar, supra, 35 Cal.4th at p. 1043 [defendant

" 'must show a "reasonable probability of a different result" ' "]).

       Moreover, " '[i]n general, impeachment evidence has been found to be material

where the witness at issue "supplied the only evidence linking the defendant(s) to the

crime," [citations], or where the likely impact on the witness's credibility would have

undermined a critical element of the prosecution's case [citations]. In contrast, a new trial

is generally not required when the testimony of the witness is "corroborated by other

testimony." ' " (Salazar, supra, 35 Cal.4th at p. 1050.) Here, Deputy A.'s testimony was

corroborated by the testimony of the other deputies involved in the incident and

contemporaneous photographs. In light of this independent corroboration, it is not

reasonably probable Jimenez's use of the report would have produced a more favorable

outcome for him. Based on the totality of the circumstances, the undisclosed report

cannot reasonably be said to "put the whole case in such a different light as to undermine

confidence in the verdict." (Kyles, supra, 514 U.S. at p. 435.)

       In sum, we conclude Jimenez has failed to demonstrate the materiality and

prejudice necessary to establish a Brady violation.




5      Jimenez claims he wanted to use the report to show Deputy A. was "biased against
appellant based on appellant's presence at a gang-related shooting," but he previously
argued gang references should not be introduced at trial. Jimenez does not try to
reconcile these positions.
                                              16
       B. The Court Did Not Abuse Its Discretion in Denying Jimenez's New Trial
          Motion

       Jimenez contends that the trial court's refusal to grant his motion for a new trial

under section 1181 based on the newly disclosed police report constitutes an abuse of

discretion. This claim fails for the same reason as his claim of Brady error—the evidence

is immaterial to Jimenez's case.

          1. Legal Principles

       A new trial should be granted based on newly discovered evidence only if the

evidence is "material to the defendant" and the defendant "could not, with reasonable

diligence, have discovered and produced [the evidence] at the trial." (§ 1181, subd. (8).)

The newly discovered evidence must " ' "be such as to render a different result probable

on a retrial of the cause." ' " (People v. Delgado (1993) 5 Cal.4th 312, 328.) "Critically,

'[a] new trial on the ground of newly discovered evidence is not granted where the only

value of the newly discovered testimony is as impeaching evidence' or to contradict a

witness of the opposing party." (People v. Hall (2010) 187 Cal.App.4th 282, 299

[affirming denial of defendant's new trial motion where it was unlikely the jury, even had

it received the new evidence, would have changed its determination of defendant's guilt];

see People v. Shoals (1992) 8 Cal.App.4th 475, 488 [new trial properly denied where new

evidence did not contradict the strongest evidence introduced against the defendant and at

best created a conflict with the prosecution's prima facie case].) "On appeal, a trial

court's ruling on a motion for new trial is reviewed under a deferential abuse of discretion

standard. [Citation.] Its ruling will not be disturbed unless defendant establishes 'a


                                             17
"manifest and unmistakable abuse of discretion." ' " (Hoyos, supra, 41 Cal.4th at p. 917,

fn. 27.)

           2. Analysis

       Jimenez argues that he met his burden to establish a different result is probable on

retrial because it is reasonably likely that at least one juror would have found the police

testimony unreliable because of bias. Although the trial court is required to

independently weigh the evidence in ruling on a motion for new trial, "an appellate court

will not modify or set aside the verdict if there is any substantial evidence to support it."

(People v. Serrato (1973) 9 Cal.3d 753, 761, disapproved on other grounds in People v.

Fosselman (1983) 33 Cal.3d 572, 583, fn. 1.) Here, the testimony of Deputies F. and P.

constitutes substantial evidence to support the verdict independent of the testimony

offered by Deputy A. For the reasons discussed in our Brady analysis, we conclude it is

not reasonably probable Jimenez would obtain a more favorable result if the case were

retried and he could use the report for impeachment.

       C. Section 654 Does Not Preclude Separate Punishment for Counts 1 and 4

       Jimenez contends his sentence for evading a peace officer with reckless driving

(count 4) should be stayed under section 654 because it occurred during the same course

of conduct as his assault on a peace officer (count 1) and he had a single intent—to evade

the police to avoid arrest. We disagree.

           1. Legal Principles

       Section 654, subdivision (a), provides that "[a]n act or omission that is punishable

in different ways by different provisions of law shall be punished under the provision that

                                              18
provides for the longest potential term of imprisonment, but in no case shall the act or

omission be punished under more than one provision." "Section 654 precludes multiple

punishments for a single act or indivisible course of conduct." (People v. Hester (2000)

22 Cal.4th 290, 294; People v. Tarris (2009) 180 Cal.App.4th 612, 626.) " ' "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." ' " (People v. Capistrano (2014) 59 Cal.4th

830, 885 (Capistrano), overruled on other grounds in People v. Hardy (2018) 5 Cal.5th

56, 104.)

       But even if a course of conduct is "directed to one objective," it may "give rise to

multiple violations and punishment" if it is "divisible in time." (People v. Beamon (1973)

8 Cal.3d 625, 639, fn. 11.) "[A] course of conduct divisible in time, though directed to

one objective, may give rise to multiple convictions and multiple punishment 'where the

offenses are temporally separated in such a way as to afford the defendant opportunity to

reflect and renew his or her intent before committing the next one, thereby aggravating

the violation of public security or policy already undertaken.' " (People v. Lopez (2011)

198 Cal.App.4th 698, 717-718 (Lopez).) Section 654's purpose is to ensure " ' "that a

defendant's punishment will be commensurate with his culpability." ' " (Capistrano,

supra, 59 Cal.4th at p. 886.)

       Whether a defendant had multiple intents or objectives in committing multiple

crimes is generally a question of fact for the sentencing court. (People v. Coleman

                                             19
(1989) 48 Cal.3d 112, 162.) "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.) Such findings will be upheld on

appeal if supported by substantial evidence. (Ibid.)

           2. Analysis

       Jimenez contends he harbored the same intent and objective during both the

evading and the assault. He explains that "the objective of the assault was to evade the

officers and prevent apprehension," and that the assault merely took the form of a

"driving maneuver" during the same course of reckless driving. The Attorney General

argues Jimenez "harbored multiple criminal objectives when he nearly crashed his

vehicle into Deputy [P.'s] patrol car," noting the assault "occurred after an intense police

chase, during which appellant reasonably could have developed animosity and anger

toward the police." The Attorney General further contends it is reasonable to conclude

Jimenez "harbored a separate criminal objective (assaulting the deputy) that was not

merely incidental to his objective of fleeing from police."

       Although both arguments are reasonable, we review the record to determine if

there is substantial evidence to support the trial court's implied finding that Jimenez

harbored multiple criminal objectives when he nearly crashed into the second patrol

vehicle. We conclude the evidence was sufficient here. For the evading charge, Jimenez

had to willfully flee from or try to elude an officer, with the intent to evade the officer.

(Veh. Code, § 2800.2, CALCRIM No. 2181.) For assault, Jimenez had to willfully direct

                                              20
his vehicle in a manner that would directly and probably result in the application of force

likely to produce great bodily injury. (Pen. Code, § 245, subd. (c); CALCRIM No. 860.)

Jimenez contends his primary objective was to avoid apprehension, but there is sufficient

evidence to support a contrary finding that he harbored multiple objectives. He was

being pursued by Deputy F. when he tried to evade capture by reckless driving (e.g.,

speeding and failing to stop at intersections). He then turned a corner and faced a

separate vehicle, driven by Deputy P., which had previously lost sight of Jimenez, taken a

different route, and was trying to rejoin the pursuit. Deputy P. explained they were no

further than halfway down the street when they saw Jimenez turn the corner approaching

them head-on. Apart from evading the first vehicle, Jimenez drove on the wrong side of

the road heading directly toward the second vehicle, resulting in the commission of the

assault. The evidence was sufficient to support the court's implied finding that Jimenez

had two objectives—he was both intending to evade and trying to assault the deputies in

the second vehicle. (See People v. Blake (1998) 68 Cal.App.4th 509, 512 ["Where a

defendant entertains multiple criminal objectives independent of and not merely

incidental to each other, he may be punished for more than one crime even though the

violations share common acts or are parts of an otherwise indivisible course of

conduct."].)

       The trial court also could reasonably have found that Jimenez had time to reflect

before committing the assault. Jimenez could have driven on his side of the road or

moved rather than driving head-on toward Deputy P.'s vehicle. He chose not to do so,

aggravating the severity of the situation. Jimenez's initial efforts trying to evade the first

                                              21
vehicle, and his subsequent assaultive conduct, "were volitional and calculated, and were

separated by periods of time during which reflection was possible." (People v. Trotter

(1992) 7 Cal.App.4th 363, 368 [§ 654 did not bar punishment for two shots occurring

within one minute of each other; defendant had opportunity to reflect and consider his

action before firing each shot].)

       In sum, the evidence supports the trial court's implied finding that section 654 does

not prohibit multiple punishments for the evading and assault charges.6

       D. Jimenez Is Entitled to Remand for Resentencing Under Amended Sections 667
          and 1385

       Jimenez contends his case should be remanded for resentencing pursuant to

sections 667 and 1385, as amended by Senate Bill No. 1393, which, effective January 1,

2019, allows the trial court to exercise discretion to strike a formerly mandatory five-year

enhancement applicable to defendants who have suffered a prior serious felony

conviction. (Stats. 2018, ch. 1013, §§ 1-2.) Jimenez contends, and the Attorney General

concedes, the amendments apply because Jimenez's conviction is not yet final. (See In re

Estrada (1965) 63 Cal.2d 740, 744; People v. Garcia (2018) 28 Cal.App.5th 961, 973.)

We agree and therefore remand for resentencing under sections 667 and 1385. We

express no opinion on how the trial court should exercise its discretion.




6      Jimenez also contends the trial court's failure to correctly apply section 654
violated his right to due process. Because we find no error in the trial court's application
of section 654, defendant's due process claim fails.
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                                     DISPOSITION

      Jimenez's sentence is vacated, and the matter is remanded to allow the trial court

to determine whether to strike Jimenez's five-year enhancement under Penal Code

sections 667, subdivision (a)(1) and 1385. The judgment is affirmed in all other respects.




                                                                          GUERRERO, J.

WE CONCUR:




HUFFMAN, Acting P. J.




HALLER, J.




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