Filed 1/25/16 P. v. Gallardo CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F069476
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. F10300870)
                   v.

LUIS ARMANDO GALLARDO,                                                                   OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Fresno County. Arlan L.
Harrell, Judge.
         Caitlin U. Christian, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and
Christina Hitomi Simpson, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-



*        Before Levy, Acting P.J., Poochigian, J. and Franson, J.
           A jury convicted appellant Luis Armando Gallardo of evading an officer
(count 3/Veh. Code, § 2800.2, subd. (a)) and two counts of assault with a deadly weapon
(counts 1 & 2/Pen. Code, § 245, subd. (a)(1)).1
           On May 30, 2014, the court sentenced Gallardo to a five-year prison term, the
upper term of four years on one assault conviction, a one-year term on his second assault
conviction (one-third the middle term of three years) and a concurrent two-year term on
his evading an officer conviction.
           On appeal, Gallardo contends his sentence on the evading an officer conviction
violates section 654’s proscription against multiple punishment. 2 We affirm.
                                             FACTS
           On December 27, 2009, at approximately 2:30 a.m., Kerman Police Sergeant Peter
Magallon was in a marked patrol car traveling westbound on Stanislaus when he saw a
man, later identified as Gallardo, driving a Mazda ahead of him. At the intersection with
Madera Avenue, Gallardo ran a red light. Sergeant Magallon activated his overhead
lights and Gallardo started accelerating away from him travelling 45 to 50 miles per hour
in a residential area where the posted speed limit was 25 miles per hour. At First Street,
Gallardo failed to stop at a stop sign and turned north. At San Joaquin Avenue, Gallardo
turned east and drove to Madera Avenue where he turned south without stopping at a stop
sign. At the intersection of Sunset and Madera Avenue, Gallardo turned off the Mazda’s
headlights, crossed over into the northbound lanes, and began driving southbound against
traffic.
           Sergeant Barcoma heard Sergeant Magallon broadcast on the radio that he was
attempting to stop a vehicle that refused to stop and drove to the area with his overhead


1          All further statutory references are to the Penal Code, unless otherwise indicated.
2      By imposing a concurrent term on Gallardo’s evading conviction, the court
implicitly found that this term did not violate section 654.


                                                 2.
lights activated. Sergeant Barcoma was driving north on Madera Avenue in the number
one lane when he saw Gallardo’s Mazda turn south onto Madera Avenue, cross into the
northbound lanes, and continue traveling south in the number two lane.3 Gallardo then
drove the Mazda into the number one northbound lane and accelerated as he headed
toward Sergeant Barcoma with his eyes focused straight ahead at the officer. Sergeant
Barcoma quit pressing the accelerator and swerved into the number two lane in order to
avoid hitting the Mazda, which came within a foot of striking the officer’s patrol car as it
continued traveling straight.
        Sergeant Gurdeep Deol also heard Sergeant Magallon’s broadcast and responded
to the area. As Sergeant Deol traveled north on Madera Avenue in the number one lane
he saw the Mazda, which was again traveling south in the northbound number two lane
with its headlights off. The Mazda was approximately 300 feet away when Gallardo
angled it towards Sergeant Deol’s patrol car, which caused the officer to drive his vehicle
more toward the median and brace himself for an impact. However, when the Mazda
was two to three feet away from Sergeant Deol’s car, it veered back into the number two
lane.
        Sergeant Deol drove to the intersection with Sunset and made a U-turn as Gallardo
continued driving south and turned east onto F Street. Sergeant Deol followed Gallardo
who immediately made a U-turn and drove back toward Madera Avenue. Gallardo then
angled the Mazda towards the driver’s side of Sergeant Deol’s patrol car and came within
five feet of the car, which caused Sergeant Deol to drive into the entryway of a parking
lot. After turning around in the lot, Sergeant Deol saw that the Mazda had entered a
center median island in an attempt to drive north in the southbound lanes and had gotten



3       Madera Avenue had two lanes for each direction of travel. The number one lane
was the lane closest to the median. The number two lane was the lane closest to the edge
of the street.


                                             3.
stuck on a raised portion of the curb. Gallardo then got out of the car and ran away.
Although Gallardo avoided the officers that day, he was arrested on January 30, 2014.
                                       DISCUSSION
       Gallardo contends the court violated section 654’s proscription against multiple
punishment when it imposed a concurrent term on his evading an officer conviction
because the course of conduct during which he evaded officers and assaulted two of them
shared the common intent and objective of escaping. He relies on People v. Chacon
(1995) 37 Cal.App.4th 52 (Chacon) and In re McCoy (1968) 266 Cal.App.2d 739 in
support of this contention. We reject Gallardo’s claim of sentencing error.
       Section 654, subdivision (a) 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.” Thus, under the
plain language of the statute, multiple punishment, whether consecutive or concurrent,
may not be imposed for a single “act or omission.” (Ibid; People v. Deloza (1998) 18
Cal.4th 585, 594.) Section 654 also prohibits multiple punishment for multiple acts
which comprise an “indivisible course of conduct.” (People v. Hester (2000) 22 Cal.4th
290, 294.)
       A course of conduct is “indivisible” if the defendant acts with “a single intent and
objective.” (In re Jose P. (2003) 106 Cal.App.4th 458, 469.) “If, on the other hand,
defendant harbored ‘multiple criminal objectives,’ which were independent of and not
merely incidental to each other, he may be punished for each statutory 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.]” (People v.
Harrison (1989) 48 Cal.3d 321, 335.) “The question of whether the defendant held
multiple criminal objectives is one of fact for the trial court, and, if supported by any
substantial evidence, its finding will be upheld on appeal.” (People v. Herrera (1999) 70

                                              4.
Cal.App.4th 1456, 1466.) The court’s findings may be either expressed or implied from
the court’s ruling. (People v. McCoy (1992) 9 Cal.App.4th 1578, 1585.)
       “[T]he fact certain acts are proximate in time is not determinative in finding an
indivisible course of conduct. Multiple criminal objectives may divide those acts
occurring closely together in time.” (People v. Bradley (1993) 15 Cal.App.4th 1144,
1157, disapproved on another point in People v. Rayford (1994) 9 Cal.4th 1, 7.) Thus, as
our Supreme Court noted in People v. Latimer (1993) 5 Cal.4th 1203 (Latimer), “Some
[decisions] have narrowly interpreted the length of time the defendant had a specific
objective, and thereby found similar but consecutive objectives permitting multiple
punishment.” (Id. at pp. 1211-1212.) The court in Latimer cited People v. Trotter (1992)
7 Cal.App.4th 363 (Trotter) as an example. (Latimer, supra, at p. 1212.)
       In Trotter, the defendant was punished separately for two of three gunshots fired at
a pursuing officer. On appeal, the court rejected the defendant’s claim of a single
objective─“to avoid apprehension”─concluding that it was proper to punish him
separately for the first two shots, which were fired “within one minute” of each other.
(Trotter, supra, 7 Cal.App.4th at p. 366.) The court observed: “Defendant’s conduct
became more egregious with each successive shot. Each shot posed a separate and
distinct risk to [the officer] and nearby freeway drivers. To find section 654 applicable to
these facts would violate the very purpose for the statute’s existence” (id. at p. 368),
which is “‘to insure that a defendant’s punishment will be commensurate with his
culpability.’” (Id. at p. 367.)
       “Furthermore, [Trotter] was not a case where only one volitional act gave rise to
multiple offenses. Each shot required a separate trigger pull. All three assaults were
volitional and calculated, and were separated by periods of time during which reflection
was possible. None was spontaneous or uncontrollable. ‘[D]efendant should ... not be
rewarded where, instead of taking advantage of an opportunity to walk away from the
victim, he voluntarily resumed his ... assaultive behavior.’” (Trotter, supra, 7

                                              5.
Cal.App.4th at p. 368, citing People v. Harrison, supra, 48 Cal.3d at p. 338.) Finally, the
court also observed that “even under the long recognized ‘intent and objective’ test, each
shot evinced a separate intent to do violence ....” (Ibid.)
       Here, Gallardo had ample time while evading the officers to reflect on his conduct
and pull over before he assaulted any of them. Instead, his conduct became more
egregious when he made a volitional, calculated decision to continue evading the officers
by crossing into the northbound lane, turning his headlights off, and driving against the
flow of traffic because this greatly increased the danger to the pursuing officers and other
drivers. Additionally, the court could reasonably find that in assaulting the officers,
Gallardo harbored the additional intent and objective of injuring them by crashing into
them head on or causing them to crash. Moreover, imposition of punishment on
Gallardo’s evading an officer offense ensured that Gallardo’s punishment was
commensurate with his culpability. Thus, we conclude that section 654 did not bar the
court from imposing separate punishment on Gallardo’s evading offense apart from that
imposed on his assault offenses. Further, section 654 did not bar the imposition of
separate punishment on each of Gallardo’s assault convictions because each conviction
involved a different victim and section 654 does not apply to crimes of violence against
multiple victims.4 (People v. Oates (2004) 32 Cal.4th 1048, 1063.)


4      The defendant in Trotter was also convicted of evading an officer and the trial
court stayed the sentence it imposed on that count. (Trotter, supra, 7 Cal.App.4th at
p. 365.) Gallardo cites Trotter in support of his contention that the court should have
stayed the concurrent term it imposed on his evading an officer conviction. It is unclear
why the trial court in Trotter stayed the term it imposed on the defendant’s evading an
officer conviction. However, the issue before the Trotter court was whether the terms
imposed on the defendant’s two assault convictions violated section 654 and the appellate
court did not consider the propriety of the stayed sentence imposed on the defendant’s
evading an officer conviction. “[I]t is axiomatic that cases are not authority for
propositions not considered.” (People v. Alvarez (2002) 27 Cal.4th 1161, 1176.) Thus,
Trotter does not assist Gallardo.


                                              6.
       In Chacon, supra, 37 Cal.App.4th 52, in an effort to obtain a truck in which to
escape, the defendant kidnapped, punched, choked, stabbed, and threatened to kill a
California Youth Authority librarian. (Id. at p. 58.) This conduct resulted in the
defendant being convicted of aggravated kidnapping for ransom, extortion, escape by
force and violence, and assault and the trial court imposed unstayed sentences on each of
these convictions. (Id. at pp. 56-57.) The Chacon court, however, found that because
these offenses were part of an indivisible transaction whose singular objective was to
escape, section 654 required a stay of the sentences imposed on the defendant’s
convictions for escape, extortion, and the assault involving the librarian.5 (Chacon,
supra, at p. 66.)
       In In re McCoy, the court held that a state prison inmate who robbed a victim of
car keys, in order to escape by car, could not be punished for both the escape and the
robbery committed in order to allow the escape. (In re McCoy, supra, 266 Cal.App.2d
739, 740.)
       Unlike Chacon and In re McCoy, here, substantial evidence supports the court’s
implied finding that Gallardo entertained multiple criminal objectives when he committed
the assault offenses, i.e., to escape and to commit violence against the officers. Further,
“at some point the means to achieve an objective may become so extreme they can no
longer be termed ‘incidental’ and must be considered to express a different and a more
sinister goal than mere successful commission of the original crime. We should not lose
sight of the purpose underlying section 654, which is ‘to insure that a defendant’s
punishment will be commensurate with his culpability.’ [Citations.]” (People v. Nguyen
(1988) 204 Cal.App.3d 181, 191.) Thus, we conclude that the court did not violate



5      The court also found that section 654 did not require a stay of the sentence
imposed on the defendant’s assault conviction that involved a different victim. (Chacon,
supra, 37 Cal.App.4th at pp. 66-67.)


                                             7.
section 654 when it imposed a concurrent term on Gallardo’s evading an officer
conviction.
                                   DISPOSITION
      The judgment is affirmed.




                                          8.
