Filed 4/1/14 P. v. Conners CA2/5

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

ENOCH CONNERS,

Defendant and Appellant.

 B247491

 (Los Angeles County Super. Ct.

 No. BA404162)

APPEAL from a judgment of the Superior Court of Los Angeles County, Ronald 

S. Coen, Judge. Affirmed.

Paul R. Kraus, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr., 

Supervising Deputy Attorney General, and Allison H. Chung, Deputy Attorney General, 

for Plaintiff and Respondent.

________________________________
2

The jury convicted defendant and appellant Enoch Conners of two counts of first 

degree burglary (Pen. Code § 459)1(counts 1 and 2) and six counts of misdemeanor

resisting arrest (§ 148, subd. (a)(1)) (counts 4-9). He was found not guilty of first degree 

burglary (§ 459) in count 3.

The trial court sentenced defendant to seven years four months in state prison, plus 

two years in county jail, consisting of the upper term of six years in count 1, a 

consecutive term of sixteen months in count 2 (one-third the mid-term), consecutive 

terms of one year in county jail on counts 4 and 6, and concurrent terms of one year in 

county jail on counts 5, 7, 8, and 9. Defendant was awarded 603 presentence custody 

credits and 90 days of conduct credit.

Defendant contends that five of his six sentences for misdemeanor resisting arrest 

must be stayed under section 654, and the trial court erred in its calculation of 

presentence custody credits and conduct credits. 

We affirm.

FACTS

Defendant burglarized the homes of Ryan Glenn and Gina Rudnick on the 

morning of June 3, 2011.2 Glenn confronted defendant and observed him driving away in 

a late model, copper-colored BMW coupe that was parked across the street from his 

house. Glenn reported the crime, described the vehicle, and provided police with a 

license plate number that matched defendant’s, except that two numbers were transposed. 

Rudnick also noticed the BMW after realizing that someone had forcibly entered her 

house, and she reported the incident to the police.

 

1 All further statutory references are to the Penal Code unless otherwise specified.

2 Defendant does not challenge the burglary convictions, nor does he argue that 

there is insufficient evidence to support the convictions for misdemeanor resisting arrest. 

We summarize the facts viewing the evidence in the light most favorable to the judgment.
3

Officer Jason Perez located the BMW across the street from Rudnick’s residence. 

He recovered a pink bag from the front seat that contained jewelry and other items taken 

from Glenn’s home.

The police conducted a perimeter search in the area around Rudnick’s home and 

observed defendant standing next to bags in front of another residence. Officer Andres 

Peters made eye contact with defendant, who immediately fled, evading arrest. The 

perimeter search lasted several hours and involved multiple units and air support, but was 

unsuccessful.

After the perimeter search ended, Officer Michael Delery and his partner, Officer 

Aride, were returning to their station in a marked squad car when Officer Delery saw 

defendant walking out of a driveway two houses north of Rudnick’s home. Officer 

Delery accelerated toward defendant, who noticed him and began to run. Officer Delery 

parked the vehicle, and Officer Aride, who was in uniform, exited the vehicle and began 

to pursue defendant on foot. He yelled for defendant to stop. Defendant escaped over a 

fence just before Officer Delery parked the car and caught up to Officer Aride.

Police then conducted a second perimeter search. Several K-9 units were 

deployed. Defendant was issued a warning over a helicopter P.A. system that dogs were 

being used, and if he refused to surrender, the dogs would be unleashed and could harm 

him. K-9 Officer Jeff Miller and his dog Nico eventually located defendant, who had 

forcibly entered another residence on Rudnick’s street. Officer Miller could see 

defendant moving around inside the house. Several officers entered the house and yelled 

for defendant to surrender, but he did not comply. They were eventually able to 

determine that he was hiding in the basement.

Sergeant Sola, who led the search after the K-9 team located defendant, repeatedly 

ordered defendant to surrender, informing him the officers would release “clear out” gas 

and use a Taser if he resisted. Defendant continued to resist arrest. Officers released the 

“clear out” gas and defendant continued to evade them, moving throughout the basement 

and attempting to breathe through different air vents. Officer Fitzsimmons deployed a 

Taser against defendant. Defendant still refused to comply with the officers’ orders and 
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warnings, so Officer Roca tased defendant. Finally, defendant was apprehended and 

taken into custody, after being tased a third time. 

DISCUSSION

Imposition of Separate Sentences for Misdemeanor Resisting Arrest Convictions

Section 654, subdivision (a) provides, in pertinent 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.” “In Neal v. State 

of California (1960) 55 Cal.2d 11, this court construed the statute broadly: ‘“Section 654 

has been applied not only where there was but one ‘act’ in the ordinary sense . . . but also 

where a course of conduct violated more than one statute and the problem was whether it 

comprised a divisible transaction which could be punished under more than one statute 

within the meaning of section 654.” [Citation.] [¶] 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.’ (Id. at p. 19, italics added.)” (People v. Rodriguez (2009) 47 

Cal.4th 501, 507.) “‘If, however, the defendant had multiple or simultaneous objectives, 

independent of and not merely incidental to each other, the defendant may be punished 

for each 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.]’ [Citation.]” (People v. Hairston (2009) 174 Cal.App.4th 231, 240 

(Hairston).)

“The question whether section 654 is factually applicable to a given series of 

offenses is for the trial court, and the law gives the trial court broad latitude in making 

this determination. Its findings on this question must be upheld on appeal if there is any 
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substantial evidence to support them.” (People v. Hutchins (2001) 90 Cal.App.4th 1308, 

1312 (Hutchins).) “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.) “‘“We must ‘view the evidence in a light 

most favorable to the respondent and presume in support of the [sentencing] order the 

existence of every fact the trier could reasonably deduce from the evidence. [Citation.]’ 

[Citation.]” [Citation.]’ (Hutchins, supra, . . . at pp. 1312-1313.)” (People v. Tarris

(2009) 180 Cal.App.4th 612, 626-627.)

Defendant was convicted of six counts of misdemeanor resisting arrest with 

respect to six different officers: Delery, Aride, Miller, Sola, Fitzsimmons, and Roca. At 

sentencing, the trial court noted defendant could be sentenced separately for each of the 

offenses, implicitly finding each offense involved a separate intent: “As far as the 148s, 

they can be punished separately pursuant to . . . section 148, subdivision (a) and 

[Hairston, supra, 174 Cal.App.4th] 231.” Defendant contends the court was statutorily 

required to stay the terms for five of his six misdemeanor resisting arrest convictions 

pursuant to section 654 because he engaged in an indivisible course of conduct and had a 

single intent to evade arrest.

In Hairston, supra, 174 Cal.App.4th at page 233, the defendant was convicted of 

one count of criminal threats enhanced for personal use of a handgun, and three counts of 

misdemeanor resisting arrest (§ 148, subd. (a)(1)) with respect to three separate officers. 

He was sentenced to three one-year terms in county jail to run concurrent with his term of 

thirteen years in prison. (Ibid.) The defendant first resisted arrest when a sheriff’s 

deputy following his car activated the patrol car’s lights. Although the deputy yelled for 

the defendant to stop, he ran around a building and disappeared. A second deputy arrived 

on the scene to assist and spotted the defendant running through an apartment complex 

and jumping over a wall. He exited his vehicle, identified himself, and ordered the 

defendant to put his hands over his head, but the defendant jumped back over the wall 

and ran through the complex, resisting arrest a second time. The defendant then ran in 
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the direction of a third deputy arriving on the scene in his vehicle. The deputy slammed 

on his brakes, got out of the car, and pointed a gun at the defendant, ordering him to stop. 

The defendant fled the third deputy as well. On appeal, he contended, as defendant here 

does, that he acted with the single objective of avoiding arrest by the officers. The 

appellate court held that punishment could be imposed for all three violations of section 

148 because the “[d]efendant formed a new and independent intent with each officer he 

encountered.” (Id. at p. 240.)

The same is true here. Defendant resisted arrest when he sighted Officer Delery in 

a marked squad car. He then evaded Officer Aride, who chased him on foot and ordered 

him to stop. Defendant was warned that search dogs would be used but did not surrender 

to Officer Miller and his canine, despite warnings from the P.A. system that the dog 

would be unleashed. Sergeant Sola warned defendant that officers would use “clear out” 

gas and a Taser if he resisted, but he did not give himself up. After the “clear out” gas 

was deployed, Officer Fitzsimmons tased defendant, and defendant still refused to 

comply. Nor did he comply when Officer Roca tased him a few minutes later. At each 

juncture, defendant had the opportunity to surrender himself and end the pursuit. He 

decided not to do so repeatedly, and that conduct renders him more culpable than a 

person resisting only one officer. Given the facts, we cannot conclude the trial court 

erred in imposing concurrent sentences.3

 

3 We do not address defendant’s argument that the multiple victim exception does 

not apply here. Under the multiple-victim exception to section 654, “even though a 

defendant entertains but a single principal objective during an indivisible course of 

conduct, he may be convicted and punished for each crime of violence committed against 

a different victim.” (People v. Ramos (1982) 30 Cal.3d 553, 587, reversed on other 

grounds in California v. Ramos (1983) 463 U.S. 992.) In this case, defendant did not 

meet the threshold requirement of entertaining a single objective in an indivisible course 

of action, so it is unnecessary to decide whether the exception would apply.
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Calculation of Custody and Conduct Credits

Defendant was awarded 603 days credit for presentence custody and 90 days of 

conduct credit for a total of 693 days. Defendant represents that he filed a postjudgment 

ex parte motion to correct fines and presentence custody credits on June 28, 2013, 

disputing the trial court’s calculations. The purported motion was filed subsequent to the 

March 14, 2013 notice of appeal in the instant case, and any order denying the motion 

would have been made thereafter. A postjudgment order denying modification of the 

custody credits awarded is an appealable order. (People v. Salazar (1994) 29 

Cal.App.4th 1550, 1557.) It does not appear defendant filed an appeal from the denial of 

his postjudgment motion for additional credits. We decline to reach the merits of the 

contention, as that issue is not properly before this court in this appeal.4

DISPOSITION

The judgment is affirmed.

KRIEGLER, J.

We concur:

TURNER, P. J. MOSK, J.

 

4 We denied defendant’s February 6, 2014 motion to augment the record on appeal 

to include the clerk’s transcript of the trial court’s proceedings on his ex parte motion to 

correct fines and presentence custody credits by separate order.