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The People v. Alexander Danilyuk

April 13, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
ALEXANDER DANILYUK, DEFENDANT AND APPELLANT.



(Super. Ct. No. 09F08320)

The opinion of the court was delivered by: Raye , P. J.

P. v. Danilyuk

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

A jury found defendant Alexander Danilyuk guilty of reckless driving resulting in injury (Veh. Code, § 23105, subd. (a)) and two counts of resisting a peace officer (Pen. Code, § 148, subd. (a)). The trial court imposed a four-year term of formal probation and sentenced defendant to 270 days in county jail. Defendant appeals, arguing the trial court erred in allowing both convictions of resisting a peace officer to stand as those counts were based on the same criminal act and defendant had but one objective. We agree with defendant and, accordingly, reverse his conviction on count four.

Defendant also claims the trial court erred in failing to stay the sentence imposed on his conviction for resisting a peace officer pursuant to Penal Code section 654. We disagree and affirm the remainder of the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In July 2009 California Department of Motor Vehicles (DMV) investigator Salvador Gonzalez was conducting an investigation into unlicensed auto dealers. In the course of the investigation, Gonzalez found an ad listing vehicles for sale on a Web site called "Craig's List"; Gonzalez called the listed telephone number and spoke to a man who identified himself as "Alex." They made an appointment to meet.

Gonzalez, assisted in the undercover operation by investigators Nick Nguyen, Scott Mitchell, and James Haggerty, met defendant at his parents' home. Gonzalez looked at several cars, taking a Honda Accord and Toyota Camry for test drives. Mitchell and Haggerty followed Gonzalez in their vehicle while Gonzalez test drove each car.

Following the last test drive, Gonzalez showed defendant his badge, identified himself as an investigator for the DMV, and told defendant he was breaking the law. At the same time, Haggerty and Mitchell approached Gonzalez and defendant. Haggerty had his badge out; he announced they were all police officers. Meanwhile, Nguyen was nearby speaking with defendant's father.

Defendant told Gonzalez he was a salesperson, but defendant had no license and a representative of the company he claimed to work for said he "was not a salesman for them." Consequently, the investigators decided to tow the Honda. Gonzalez saw a marked change in defendant's behavior when he said they were going to tow the car; defendant became "antsy." As Gonzalez began filling out paperwork to have the Honda towed, he asked Mitchell to watch defendant.

Thinking Mitchell did not hear his request, Gonzalez repeated himself. At the same time, defendant walked briskly toward the Honda and got inside. Mitchell followed defendant. He told defendant to stop and get out of the vehicle. Gonzalez approached the car and began tapping on the window, telling defendant to get out of the vehicle. Mitchell made eye contact with defendant and ordered him out of the vehicle, but defendant refused to comply. Gonzalez also banged on the vehicle window and yelled for defendant to stop.

As the officers continued telling defendant to stop and get out of the vehicle, defendant revved the engine, pulled out, and drove off. Gonzalez saw Mitchell roll on the ground and yell in pain as defendant drove off at an unsafe speed. Gonzalez believed defendant drove the car in such a way it made Mitchell fall. Defendant then drove toward Nguyen, who got ...


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