Filed 12/7/15 P. v. Orduno 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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,
                                                                                           F068962
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. BF149821A)
                   v.

WALTER ORDUNO,                                                                           OPINION
         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of Kern County. Gary T.
Friedman, Judge.
         John L. Staley, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Louis M. Vasquez and Rebecca Whitfield, Deputy Attorneys General, for
Plaintiff and Respondent.
                                                        -ooOoo-
         Walter Orduno led numerous police officers on a high-speed chase through streets
and highways in Bakersfield. Eventually he abandoned his car and fled on foot into a
residential neighborhood. He was soon found hiding in the backyard of a house but
violently resisted the three police officers who attempted to handcuff and arrest him. He
was charged with 11 felonies and one misdemeanor based on this course of conduct,
including driving recklessly while fleeing from a peace officer; driving the wrong way on
a public highway; three counts of resisting a peace officer with force or violence; and
transportation of methamphetamine (which was found in the car). He argues his sentence
for driving the wrong way on a highway should be stayed pursuant to Penal Code 1
section 654 because he had the same objective in committing both this offense and the
offense of driving recklessly while fleeing from a peace officer; his convictions for three
counts of resisting a peace officer should be consolidated into a single conviction because
all were based on the same incident; and his conviction for transporting
methamphetamine should be reversed for insufficiency of evidence. We reject Orduno’s
claim regarding the consolidation of his convictions for resisting a peace officer.
However, we agree his sentence for driving the wrong way on a public highway should
be stayed pursuant to section 654 and his conviction for transporting methamphetamine
should be reversed for insufficiency of evidence. Accordingly, we remand the matter for
resentencing with respect to these latter counts and affirm the judgment in all other
respects.
                        FACTS AND PROCEDURAL HISTORY
       The chase began at 2:57 a.m. on July 21, 2013, when Bakersfield Police Officers
Robert “Joe” Woods and Jess Beagley saw a white Ford Crown Victoria, driven by
Orduno, speeding while traveling eastbound on Stockdale Highway. Officer Woods gave
chase and, after hitting a speed of 100 miles per hour, finally caught up with Orduno as
he turned right onto South Real Road. After making the turn, Orduno pulled over to the
curb. Israel Lopez, who was sitting in the Crown Victoria’s front passenger seat, got out
of the car. The officers activated the overhead flashing lights and siren on their

       1Subsequent   statutory references are to the Penal Code unless noted otherwise.


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unmarked patrol car, but Orduno sped away, heading southbound on South Real Road.
Upon crossing Elcia Drive, he slowed down. Officer Beagley saw a passenger in the rear
seat, Norma Hernandez-Alvarado, remove a baby from a car seat, open the back
passenger-side door, and stick out her foot. Orduno started moving the car forward, and
Hernandez-Alvarado, who was holding the baby, fell to the ground outside the car.
Orduno quickly sped away. Officer Woods again gave chase, while Officer Beagley
stayed behind to attend to Lopez and Hernandez-Alvarado.
       At this point, Officer Woods activated a “Code 3 response,” meaning that all the
patrol car’s lights and sirens were in operation. Other officers in marked police cars, with
lights and sirens activated, also joined the chase as Orduno drove eastbound on State
Route 58. Orduno drove at speeds of up to 100 miles per hour, running several red lights
along the way. He finally exited on Union Avenue, but, at the top of the exit ramp, he
turned around and drove the wrong way down the same ramp, toward the patrol cars that
were pursuing him. He accelerated directly at a patrol car driven by Officer Jason
Felgenhauer, with Officer Robert Pair in the passenger seat. Officer Felgenhauer had to
“violently maneuver” his patrol car to avoid a head-on collision, ending up on the
shoulder of the road. Orduno then drove directly at a patrol car driven by Officer Martin
Heredia, who testified that Orduno changed lanes to do so; Officer Heredia also had to
pull to the side to avoid being hit. Orduno continued driving in a westbound direction on
eastbound State Route 58, with multiple patrol cars in pursuit. A short time later, the
Crown Victoria veered toward State Route 58’s center median and stopped against the
curb. By the time the officers reached the car, Orduno had run away. Officer Woods
searched the car and found a small plastic baggie containing crystal methamphetamine.
The parties later stipulated that the methamphetamine constituted a usable amount.
       Other Bakersfield police officers were dispatched to the area to set up a perimeter,
including Officers Travis Brewer, Steven Glenn, and Thomas Hernandez, who brought
his police dog, Kane. An onlooker told the officers he saw Orduno run toward Haybert

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Court. Kane alerted to a human scent at 215 Haybert Court. Officer Hernandez
commanded Kane to search the backyard and momentarily Orduno called out, “[Y]our
dog has me.” Kane had found Orduno hiding under a table and had bitten his right
shoulder and grabbed his shirt. At Officer Hernandez’s direction, Orduno crawled out
and lay on his stomach. However, once Officer Hernandez took Kane away, Orduno
tried to get back under the table. Officers Brewer and Glenn attempted to stop him but he
struggled violently and the officers were unable to control him. Orduno was able to reach
into his pocket, where Officer Glenn had felt a knife. Officer Christopher Moore came
into the backyard to assist the officers. He saw Orduno “violently resisting” the officers
who were trying to handcuff him. However, as he tried to help push Orduno down to the
ground, Orduno bucked forcefully, causing Officer Moore to be flung off his back.
Officer Nathan Anderberg came to help and deployed his Taser. Orduno was then taken
into custody. A folding buck knife was discovered in his pants pocket during a
subsequent search.
       The Kern County District Attorney filed an information charging Orduno with
willful harm or injury to a child (§ 273a, subd. (a)); assault by means of force likely to
cause great bodily injury (§ 245, subd. (a)(4)); fleeing a peace officer’s vehicle with
willful disregard of persons or property (Veh. Code, § 2800.2); driving the wrong way on
a highway while unlawfully fleeing a peace officer (Veh. Code, § 2800.4); three counts
of assault on a peace officer with a deadly weapon (§ 245, subd. (c)); three counts of
resisting an executive officer by the use of force or violence (§ 69); transportation of
methamphetamine (Health & Saf. Code, § 11379, subd. (a)); and obstructing a peace
officer, a misdemeanor (§ 148, subd. (a)(1)). The information also alleged, with respect
to all felony counts, that Orduno had served five prior prison terms within the meaning of
section 667.5, subdivision (b).
       The case proceeded to trial, and the jury found Orduno guilty on all counts, except
that, on the two counts concerning Norma Hernandez-Alvarado and her baby (i.e., willful

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harm or injury to a child and assault by means of force likely to cause great bodily
injury), Orduno was convicted only of lesser-included misdemeanor offenses. In a
bifurcated trial, Orduno admitted one prior-prison-term allegation as to each felony
count; the remaining prior-prison-term allegations were dismissed. He was sentenced to
a total of 13 years in prison.
                                      DISCUSSION
I.     Orduno was properly convicted on three separate counts under section 69
       Orduno was charged with and convicted of three counts of resisting an executive
officer by means of force or violence in violation of section 69. Specifically, he was
charged in count 8 with resisting Officer Travis Brewer, in count 9 with resisting Officer
Christopher Moore, and in count 10 with resisting Officer Steven Glenn. He was
convicted of all three counts and sentenced to a consecutive eight-month prison term for
each count.
       Orduno now contends his three section 69 convictions should be consolidated into
a single conviction because resisting multiple executive officers during a single incident
constitutes a single violation of the statute. The People respond that Orduno was
properly convicted of three separate violations of section 69, notwithstanding the fact that
the violations arose from a single incident, because Orduno used force and violence
against three different officers. We agree Orduno was properly convicted of three counts
of violating section 69.
       A.     Factual background
       The section 69 charges and convictions were based on the violent struggle
between Orduno and Officers Brewer, Moore, and Glenn, as the officers attempted to
arrest Orduno upon finding him in a residential backyard. A police dog, Kane, had
detected Orduno hiding under a table in the backyard. After Kane was taken away,
Orduno attempted to get back to his hiding spot under the table. The officers tried to stop
him, aiming to get him face down on the ground and to handcuff his arms behind his

                                             5.
back. Officer Brewer testified that he grabbed Orduno’s right arm and attempted to place
it in a “control hold,” but was unable to do so as Orduno was “violently struggling” and
trying to stand up and pull away. Officer Brewer tried lowering his knee onto Orduno’s
shoulder blade to force his upper body to the ground, to no avail.
       Officer Steven Glenn also testified about the officers’ struggle with Orduno. He
said he took hold of Orduno’s left arm but had difficulty maintaining his grasp because
Orduno was resisting violently. When Officer Glenn put his knee down on Orduno’s
back, Orduno knocked him off and attempted to turn over, at which point Officer Glenn
lost control of Orduno’s left arm. Orduno shoved his hand into his left-front pants
pocket, where Officer Glen could feel Orduno grasping a knife.
       Officer Christopher Moore came to assist Officers Brewer and Glenn in the
backyard. It was a “really tight, a tight, confined space” that was covered with junk. “It
was dark back there,” but Officer Moore saw “a suspect on the ground violently
resisting” Officers Brewer and Glenn. He described what happened next:

       “As my two partners were at his upper body trying to press his back into
       the ground—or his chest into the ground, I went up and tried to—I got on
       his back to press him down on the ground and we weren’t getting the
       desired effect. He wasn’t going to the ground. He was still trying to buck
       up and get out from under us. [¶] And so I delivered a distraction elbow
       strike to his back, and it didn’t have an effect on him. So I delivered
       another one, and at that point he—he threw himself up so hard that I ended
       up flying off of him and out of the little confined space area. And as I said,
       there’s a bunch of junk in that yard. I couldn’t get back into the—into the
       fight, so to say, to help get my—or help my officers get him into custody.”
It was only when Officer Anderberg arrived and used his Taser that Orduno was
handcuffed and taken into custody.
       B.     Analysis
       The issue is whether Orduno’s attacks on Officers Brewer, Glenn, and Moore
constitute a single violation or separate violations of section 69. We review de novo
purely legal questions such as the interpretation and application of a statute. (Ghirardo v.


                                             6.
Antonioli (1994) 8 Cal.4th 791, 799; Dowling v. Farmers Ins. Exchange (2012) 208
Cal.App.4th 685, 694.) We agree with the People that Orduno was properly convicted of
three separate violations of section 69.
       Section 69 provides:

       “Every person who attempts, by means of any threat or violence, to deter or
       prevent an executive officer from performing any duty imposed upon such
       officer by law, or who knowingly resists, by the use of force or violence,
       such officer, in the performance of his duty, is punishable by a fine not
       exceeding ten thousand dollars ($10,000), or by imprisonment pursuant to
       subdivision (h) of Section 1170, or in a county jail not exceeding one year,
       or by both such fine and imprisonment.”
The California Supreme Court has explained that section 69 “sets forth two separate ways
in which an offense can be committed. The first is attempting by threats or violence to
deter or prevent an officer from performing a duty imposed by law; the second is by
resisting by force or violence an officer in the performance of his or her duty.” (In re
Manuel G. (1997) 16 Cal.4th 805, 814; People v. Smith (2013) 57 Cal.4th 232, 240-241.)
Orduno’s convictions are for resisting an officer by means of force or violence in the
performance of his duty.
       People v. Hairston (2009) 174 Cal.App.4th 231, which Orduno cites, defeats
Orduno’s argument. In Hairston, the defendant was convicted of three counts of
violating section 148, subdivision (a)(1), which makes it a misdemeanor to resist, delay,
or obstruct a peace officer. The defendant ran away from three officers who had accosted
him at different times and locations during the same search. He challenged his
convictions on the basis that his actions constituted one violation of the statute. The court
noted that, “[u]nless the Legislature says otherwise, if a defendant commits a single
criminal act that affects multiple victims, he can be convicted of multiple counts of
violating the same statute only if the gravamen of the offense ‘is centrally an “act of
violence against the person.”’” (Hairston, supra, at p. 238.) Contrary to Orduno’s
assertion, the gravamen of his section 69 offenses is force and violence against the


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persons of the individual officers. (See Brooks v. Superior Court of Los Angeles County
(1966) 239 Cal.App.2d 538, 541 [gravamen of section 69 offense is “threats, force and
violence”]; CALCRIM No. 2652.) Under Hairston, multiple convictions for multiple
victims would be proper even if Orduno had committed only one act.
       Further, Orduno committed multiple acts. In Wilkoff v. Superior Court (1985) 38
Cal.3d 345, our Supreme Court stated that “a charge of multiple counts of violating a
statute is appropriate only where the actus reus prohibited by the statute—the gravamen
of the offense—has been committed more than once.” (Id. at p. 349.) Thus, for example,
where a person kills several people while driving intoxicated, he may properly be
convicted for multiple violations of the vehicular manslaughter statute but not for
multiple violations of the statute prohibiting drunk driving. (Id. at pp. 349-350 [“the
number of times the act is committed determines the number of times the statute is
violated”].) The actus reus or gravamen of the section 69 offenses at issue here is the use
of force or violence to resist an officer. The applicable facts show that Orduno
committed the act prohibited by section 69 numerous times in the course of the backyard
incident. For example, Orduno struggled mightily against Officer Brewer and prevented
him from placing his right arm in a control hold. He was also able to pull his left arm
violently out of Officer Glenn’s grasp. In addition, he hurled both Officers Glenn and
Moore off his back as they attempted to force him, face down, to the ground. Since he
committed the act prohibited by section 69 multiple times, he may properly be convicted
of multiple violations of the statute.
       Orduno does not cite any applicable authority for his assertion that section 69
precludes multiple convictions in this instance. Rather, he asserts that his convictions
must be consolidated because section 69 does not expressly permit multiple convictions
based on a single, underlying incident. He contrasts section 69 with section 148, which
makes it a misdemeanor to resist, delay, or obstruct a peace officer, with particular
reference to section 148’s proviso that “[a] person may be convicted of multiple

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violations of this section if more than one public officer, peace officer, or emergency
medical technician are victims.” (§ 148, subds. (a)(1), (e).) Orduno’s reliance on
section 148 is misplaced because the language of section 69 is not ambiguous, and it is
not necessary to compare its terms to those of other statutes for purposes of determining
its application and scope. (People v. Arias (2008) 45 Cal.4th 169, 177.)
       We find no error with respect to Orduno’s convictions under section 69.
II.    The trial court erred under section 654
       Orduno contends the trial court erred under section 654 when it sentenced
him to consecutive terms for driving recklessly while fleeing pursuing peace
officers (Veh. Code, § 2800.2) and driving the wrong way on a highway in the
course of fleeing pursuing peace officers (Veh. Code, § 2800.4). The People
respond that the trial court properly sentenced Orduno to consecutive terms for
these offenses because he had distinct objectives in committing each offense. We
agree with Orduno that, under section 654, his sentence for driving the wrong way
must be stayed.
       We review the trial court’s application of section 654 under the deferential
“substantial evidence” standard. (People v. Green (1996) 50 Cal.App.4th 1076,
1085.) 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.” The statute has been interpreted to bar multiple punishments
not only for a single criminal act, but also for a single indivisible course of conduct
in which the defendant had only one criminal intent or objective. (People v. Bauer
(1969) 1 Cal.3d 368, 376; In re Ward (1966) 64 Cal.2d 672, 675-676; Neal v. State
of California (1960) 55 Cal.2d 11, 19.) When reasonable minds can differ as to
whether a course of conduct comprises a divisible transaction, we apply the “intent

                                              9.
and objective” test set forth in Neal: “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.” (Neal, supra, at p. 19.)
       Here, Orduno engaged in an ongoing course of conduct in fleeing numerous
pursuing police officers and turning around and driving the wrong way back down
the highway exit ramp. However, the evidence supports a finding that this course
of conduct was divisible because Orduno had different objectives in committing
each offense (i.e., the violations of Veh. Code, §§ 2800.2 & 2800.4). In driving
recklessly while fleeing peace officers (Veh. Code, § 2800.2), his objective clearly
was to avoid capture and arrest; but, in driving the wrong way down the exit ramp
(Veh. Code, § 2800.4), his goal shifted to assaulting the pursuing police officers.
Officers Felgenhauer, Pair, and Heredia all testified that Orduno directly targeted
their patrol cars, which were in “Code 3” status. Officer Felgenhauer testified that
Orduno “made a beeline directly for our patrol vehicle.” Officer Heredia testified
that Orduno deliberately switched lanes in order to charge head-on at his patrol
car. Indeed, Orduno was convicted of three counts of assault with a deadly
weapon for targeting these officers.
       Although Orduno had different objectives and thus committed separate acts
in driving recklessly while fleeing from the police officers and in driving the
wrong way down the exit ramp, his sentence for the latter offense nonetheless
must be stayed in light of his convictions for assault with a deadly weapon.
Orduno’s assault crimes and his offense of driving the wrong way are based on the
same act, i.e., driving the wrong way down the exit ramp toward the oncoming
patrol cars. Consequently, pursuant to section 654, he cannot be punished for the
assault crimes as well as the driving offense. Orduno was sentenced to

                                            10.
consecutive terms for the assault crimes, i.e., five years for the assault on Officer
Felgenhauer and 16 months for the assaults on Officers Pair and Heredia,
respectively.2 Since these terms are longer than his eight-month sentence for
driving the wrong way, the latter sentence must be stayed.

III.   There is insufficient evidence to support Orduno’s conviction for
       transporting methamphetamine
       Orduno was found guilty of transportation of methamphetamine in
violation of Health and Safety Code section 11379, based on the fact that a usable
amount of methamphetamine was found in the Crown Victoria he was driving.3
However, about two weeks prior to his trial, on January 1, 2014, Health and Safety
Code section 11379 was amended to make clear that the section applied only to
the transportation of drugs with the intent to sell, thereby eliminating criminal
liability for the transportation of drugs for personal use. (Health & Saf. Code,
§ 11379, subd. (c); Stats. 2013, ch. 504, §§ 1-2.) Orduno argues that his
conviction for transportation of methamphetamine should be reversed because the
prosecution neither presented evidence nor argued that he transported the
methamphetamine with the intent to sell it. The People concede the point. We
agree with the parties and reverse Orduno’s conviction for the transportation of
methamphetamine (count 11).




       2Orduno  does not challenge the consecutive sentences imposed for his three
convictions for assault with a deadly weapon.
       3Orduno   was sentenced to a consecutive term of one year for this offense.


                                             11.
                                      DISPOSITION
       The conviction on count 11 is reversed and the case is remanded for resentencing
consistent with this opinion. The trial court is directed to stay the sentence on count 4.
The judgment is otherwise affirmed.

                                                                 _____________________
                                                                               Smith, J.
WE CONCUR:


 _____________________
 Gomes, Acting P.J.


 _____________________
 Detjen, J.




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