Filed 2/24/15 P. v. Taylor CA5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent ,

v. RONALD TAYLOR,

Defendant and Appellant

. F067190
(Super. Ct. No. VCF273876)



### OPINION

THE COURT * APPEAL from a judgment of the Superior Court of Tulare County. Brett R. Alldredge, Judge. Hassan Gorguinpour , under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris , Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Kevin L. Quade, Deputy Attorneys General, for Plaintiff and Respondent.

- ooOoo

-

* Before Kane, Acting P.J., Franson, J. and Peña, J.2

A jury convicted appellant Ronald Taylor of resisting an executive officer (count 2/Pen. Code, § 69), 1 making criminal threats (count 3/§ 422), evading a police officer (count 4/ Veh. Code, § 2800.2, subd. (a)), misdemeanor leaving the scene of an accident ( count 5/ Veh. Cod e , § 2 0002 , subd. (a)) , and misdemeanor battery on a police officer ( count 6/ § 243, subd. (b)). In a separate proceeding , the court found true an on

- bail enhancement (§ 12022.1). On appeal, Taylor contends his sentence violated : ( 1) section 654 , and ( 2) his right to due process under the f ederal Constitution

. We will find partial merit to Taylor’s
first contention and remand to the trial court for resentencing. In all other respects, we
affirm.
FACTS On September 28, 2012, at approximately 12:00 p.m. , California Highway Patrol Officer Greg Stoffe l was on patrol travel ing eastbound on State Route 190 near
S pringville when he saw a white pickup truck driven by Taylor speeding in the opposite
direction

. Stoffel measured the truck’s speed at 82 miles per hour with his radar unit and
made a U

- turn in order to pursue the truck. After the truck passed other vehicles by traveling in a two

- way left turn lane, throwing up debris and rocks in the process , the officer activated his overhead lights and sirens. Th e pursuit continued at speed s of 80 to
100 miles per hour until Taylor slowed down almost to a stop and made a left turn on to Success Valley Drive , a narrow , bumpy road

. This allowed Officer Stoffel t o use his public address system to yell at Taylor to pu ll over

. Taylor yelled back that he was not going back to jail.
T aylor accelerated to 80 miles per hour and t h e pursuit continued until both
vehicles came to a stop on the roadway at a sharp right turn in the road. Officer St o ffel then go t ou t of h is pa trol car and stood behind the driver’s door of the truck as he spoke

1 All further statutory references are to the Penal Code unless otherwise indicated.3

with Taylor through an open window

. 2 Taylor was swearing and yelling at Stoffel

. He
told the officer that he was not going back to jail and that i f Stoffel tried to stop him , Taylor was going to take him out. As Stoffel tried to calm Taylor down, Ta ylor suggested that they go to the officer’s house to resolve the matter. 3 Eventually, Officer
Stoffel wa s able to convince Taylor to pull his truck into a turnout that was adjacent to
the r oad . A s both vehicle s pull ed into the turnout, Officer Stoffel man e uver ed his car so
that his driver ’ s door was next to Taylor’s driver’s door. Officer Stoffel got out of his vehicle and stood next to Taylor’s driver’s side
window talking to Taylor tryin g to calm him down

. Taylor continued sa y ing things including that he was not going to go to jail and that if Stoffel tried to take him, Taylor was going to “mow” him over . O fficer Stoffel t hen tried to end the confrontation by shooting Taylor with a tase r

. T he taser , however, did not shock Taylor because only one probe hit him ; instead it enraged him

. Taylor grabbed his steering wheel , turn ed it to his left and accelerated forward, causing his truck tires to spin and kick up dirt

. Taylor’s pickup then ran into a pickup driven by Arnold Wingenbach, who had driven onto the scene . The impact caus ed Wing en bach’s truck to turn 90 degrees and push ed it into a ditch next to the road. 4
Meanwhile , T aylor’ s truck swung around and faced the officer with its whee ls spinning
and its motor revved up to maximum capacity , but it was unable to move forward

. As
O fficer Stoffel ran to the side to get out of its path , t he truck suddenly backe d up rapidly
and stopped in a field. Officer Stoffel ran to the dr i ver ’ s door a nd s aw T aylor moving
around in the vehi c le and kicking at the door. Officer Stoffel again began talking with

2 Officer Stoffel recognized Taylor as a tow truck drive r who sometimes responded to tow calls.
3 Officer Stoffel testified that it was common knowledge where he lived in Springville because he parked his patrol car at his home.
4 Wingenbach suffered bruised or cracked ribs as a result of the collision but di d not require medical treatment.4

Taylor and at one point Taylo r t old him, “I a m going to kill you , ” which prompted
Officer Stoffel t o retrieve his sidearm . Taylor kick ed the offi cer through the window, pushing him back , and eventually managed to get out of the truck. O fficer Stoffel put his gun away and unsuccessfully attempted to grab one of Taylor’s hands to handcuff him

. Taylor r an towards Success Valley Drive and Officer Sto ffel r an to his patrol vehicle.
Officer Stoffel ca ught up to Taylor in the driveway of a house where Taylor g a ve up and

wa s eventually handcuffed with the help of a man who lived there. W hile being walked to Officer Stoffel’s vehicle, Taylor broke away a nd began running , but he was quickly apprehended. Taylor was out of custody on his own recognizance when he committed the underlying offenses in this matter. On May 2, 2013, the court sentenced Taylor to an aggregate prison term o f four
year s eight month s : a two

- year term on his resisting an executive officer conviction (count 2) , a two

- year on

- bail enhancement in that count ; a consecutive eight

- month term (one third the middle term of three years) on his criminal threats conviction (count 3) ; a

concurre nt two

- year term on his evading a police officer conviction (count 4) ; time
served on his misdemeanor conviction s for leaving the scene of an accident (count 5) and battery on a police officer (count 6) ; and a concurrent two

- year term on his possession of methampheta m ine conviction in an unrelated case.
DISCUSSION Taylor contends that because all of his offenses occurred during an indivisible
course of conduct whose objective was to avoid arrest , the court violated section 654 when it imposed punishment in the instant case on all of his convictions except his conviction in count 2 for resisting an executive officer with force. Taylor further claims that his punishment was excessive because his sentence violated section 654, that excessive punishment violat es the due process guarantee of the federal constitution, and5

therefore his punishment violated his federal constitutional right to due process. We will find partial merit to Taylor’s claim that his sentence violated section 654. 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
om ission be punished under more than one provision

. ” Our Supreme Court has “often said that the purpose of section 654 ‘is to insure
that a defendant ’ s punishment will be commensurate with his culpability.’” ( People v.
Latimer (1993) 5 Cal.4th 1203, 1211 ( Latimer ).) “ Section 654 does not allow any multiple punishment, including either concurrent or consecutive sentences.” ( People v. Deloza (1998) 18 Cal.4th 585, 592.)

“ C ase law has expanded the meaning of section 654 to apply to more than one
criminal ac t when there was a course of conduct that violates more than one statute but nevertheless constitutes an indivisible transaction.” ( People v. Hairston (2009) 174 Cal.App.4th 231, 240.) In determining whether a course of conduct consisting of multiple act s is indivisible, we look to the “defendant ’ s intent and objective.” ( People v.
Harrison (1989) 48 Cal.3d 321, 335.) “[I]f all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be f ound to have harbored a single intent and therefore may be punished only once.” ( Ibid .) On the other hand, “[i]f [the defendant] entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punishe d for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.” ( People v. Beamon (1973) 8 Cal.3d 625, 639.) “[D]ecisions ... have refined and limited application of the ‘one intent and objective’ test, in part because of concerns that the test often defeats its own purpose because it does not necessarily ensure that a defendant ’ s punishment will be6

commensurate with his culpability.” ( People v . Kwok (1998) 63 Cal.App.4th 1236, 1253 ( Kwok ) .) Thus, as our Supreme Court noted in Latimer , cases decided since the intent and objective rule was announced in Neal v. State of California (1960) 55 Cal.2d 11 have “limited the rule ’ s application in variou s ways,” including, in some cases, by “narrowl y interpret [ing] the length of time the defendant had a specific objective, and thereby found similar but consecutive objectives permitting multiple punishment.” ( Latimer , supra , 5 Cal.4th at pp. 1211

- 1212 , it alics omitted .) These cases include People v. Louie (2012) 203 Cal.App.4th 388 ( Louie ) , where the court rejected a challenge based on section 654 to the imposition of sentence on multiple offenses, stating: “[W]here a course of conduct
is divisible in ti me it may give rise to multiple punishment even if the acts are directive to one objective. [Citation.] If the separation in time afforded defendants an opportunity to reflect and to renew their intent before committing the next crime, a new and separate
crime is committed .” ( Louie, supra, 203 Cal.App.4th at p. 399 , italics added .)

“ [S] ection 654 serves to match a defendant’ s culpability with punishment. [Citation.] Whether the provision ‘ applies in a given case is a question of fact for the trial cour t, which is vested with broad latitude in making its determination. [Citations.] Its findings will not be reversed on appeal if there is any substantial evidence to support them. [Citations.] We review the trial court ’ s determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence. ’” ( People v. Vang (2010) 184 Cal.App.4th 912, 915

- 9 16 .)

“ The Supreme Court has explained that section 69 ‘ sets forth two separa te ways in which an offense [of resisting an executive officer] 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 resisting by force or violence an officer in the performance of his or her duty. ’ [Citations.] ‘ The two ways of violating section 69 have been called

“ attempting to deter ” and “ actually resisting an officer. ” ’ ” [Citations.]

“ The two types of offenses have different elements. [Citation.] For example, ‘ [t]he first type of offense can be established by “ [a] threat, unaccompanied by any physical force. ” [Citations.]

... For the second type of offense, the resistance must include “force or violence,”

... . ’” ( People v. Rasmussen (2010) 189 Cal. App.4th 1411, 1417

- 1418.)7

Here, the resisting an executive officer offense was prosecuted under both
theories : t he information alleged the resisting an executive officer offense under both
theo ries ; 5 the court instructed on both theories ; 6 and d uring clo sing arguments , the
prosec utor argued Taylor resisted Officer Stoffel each time he threatened Officer Stoffel
and when he kicked him. The prosecutor , however, also argued that Taylor was guilty of making criminal threats because of the same threats he mad e against Officer Sto ff el

. S ince the conduct underlying Taylor’s conviction for making criminal threats also could
have served as the basis for the jury convicting Taylor of resisting an executive officer,
the court violated section 654 when it imposed a consecutive eight

- month term on Taylor’s conviction for making criminal threats. (§ 654, su b d. (a) [ multiple punishment may not be imposed for a single “act or omission” ].) Further, d uring closing arguments , the prosecutor argued that Taylor was guilty o f battery of a police officer because he kicked Officer Stoffel wh ile exiting his truck through the driver’s window which, as noted, was the same conduct that the prosecutor argued also proved the resisting an executive officer offense. Again, since the
p rosecutor’s argument allowed the jury to convict Taylor of two offenses based on Taylor’s singular act of kicking the officer, the court violated section 654 when it

5 The information alleged that the crime of resisting an executive officer “was committed by [Taylor], who did unlawfully attempt by means of threats and violence to deter and prevent [Officer Stoffel], who was then and th ere an executive officer, from performing a duty imposed upon such officer by law, and did knowingly resist by the use of force and violence said executive officer in the performance of his/her duty. ” (Italics added.)

6 The court instructed the jury tha t t o prove Taylor was guilty of resisting an executive officer, the People had to prove that Taylor “ willfully and unlawfully used violence or a threat of violence to try to prevent or deter an executive officer from performing the officer ’ s lawful duty .” (Italics added.)8

imposed punishment on Taylor’s battery offense by sentencing him to time served on that
of fense. The remainder of Taylor’s sentence, however, did not violate section 654. The court reasonably could have found that Taylor committed the evading a peace officer offense by his conduct prior to stopping at the sharp turn on Success Valley Road.
F urther , since Taylor had ample time to reflect on and renew his intent to escape during the over 6.7 miles he drove before stopping there, the court also could reasonably have found that his evading offense was a separate crime from the crimes he committed after that point. ( Louie , supra , 203 Cal.App.4th p. 399.) Additionally, each time he threatened
and/or kicked Officer Stoffel , Taylor created a new and greater risk of a violent
confrontation than Taylor’s evading offense alone because it increas ed the possibility that Taylor would assault Officer Stoffel an d/or that the o fficer would have to use deadly
force to subdue Taylor

. ( Kwok , supra, 63 Cal.App.4th at p. 125 6 [ § 654 found not to bar punishment for two burglary offenses that constituted a course o f conduct , in part, because each entry into the residence “created a se p arate and distinct risk of violent confrontation” ] .) Thus, we conclude that the court did not violate section 654 when it imposed a concurrent term on Taylor’s evading a peace officer offense.
T he court also could reasonably have found that after he struck Wi n genbach’s truck, Taylor had time to reflect and to desist from his unlawful conduct as he s at , stuck in place , revving his truck’s engine to its maximum capacity

. (Cf. People v. Trotter (1992) 7 Cal.App.4th 363, 368 [ § 654 did not bar punish ment for two of three assaults
where the defendant shot at police three times from a vehicle , the second shot followed
the firs t by a minute, and the third shot followed the second by a few se conds , which
allowed the defendant to reflect and consider his next action before firing each shot]. ) Further, by driving away in reverse with his engine revving at maximum capacity , Taylor exacerbated the risk of harm to everyone involved because he coul d have lost control of his truck and seriously injured someone, including himself. And by continuing to flee9

when his car stalled, he prevented Officer Stoffel from immediately rendering aid to Wingenbach. Thus, the court reasonably could have found that the conduct underlying Taylor’s leaving the scene of an accident offense made him more culpable than someone who was trying to avoid apprehension by an officer who did not leave the scene of an
accident. Accordingly , we conclude that the court did not vi olate section 654 when it

sentence d Taylor to time served on his misdemeanor conviction for failing to stop at the
scene of an accident. 7
DISPOSITION
The sentence s imposed on counts 4 and 6 are stayed and the matter is remanded to
the trial court for rese ntencing

. In all other respects the judgment is affirmed.

7 In view of our conclusion that only two of the terms imposed on Taylor’s convictions violated section 654 and our decision to stay the two terms that did, we reject Taylor’s claim that his sentence was excessive and violated his feder al constitutional right to due process.