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The People v. Ernesto Joaquin Gueyger et al

April 22, 2013

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
ERNESTO JOAQUIN GUEYGER ET AL., DEFENDANTS AND APPELLANTS.



(Super. Ct. Nos. 10F03226, 10F03260 & 10F03449)

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

P. v. Gueyger

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendants Ernesto Gueyger and Rudy Ponce, along with Sergio Bravo,*fn1 stole cigarettes and snacks from a 7-Eleven store. A jury found Gueyger and Ponce guilty of commercial burglary (Pen. Code,*fn2 § 459), and petty theft with a prior (§ 666). Gueyger was the getaway driver; he led police on a high-speed chase, rammed a patrol car, and fled again before the police apprehended him. In addition to the burglary and theft charges, Gueyger was also found guilty of robbery (§ 211), being an accessory after the fact (§ 32), recklessly evading the police (Veh. Code, § 2800.2), and assault with a deadly weapon (his car) on a peace officer (§ 245, subd. (c)). Ponce had also participated in the robbery of a different 7-Eleven store two days before. As to that incident, the jury found him guilty of robbery (§ 211) and petty theft with a prior (§ 666).

Gueyger and Ponce contend their convictions for petty theft with a prior (§ 666) must be reduced to misdemeanor theft because a section 666 conviction now requires three prior theft-related convictions, which neither defendant has suffered. Further, they contend they did not personally waive jury on the priors. The People concede that under a new amendment to section 666, which is retroactive, the section 666 convictions cannot stand and must be reduced to misdemeanor theft.

Gueyger further contends, and the People concede, that he cannot be convicted of robbery and being an accessory after the fact for simply driving away after the robbery, and that the abstracts of judgment must be corrected to show that credits were awarded pursuant to section 2933.1 rather than section 4019. As we will explain, we agree with the parties on these points.

Gueyger also argues that section 654 bars a separate sentence on reckless evading because it was part of a continuous course of conduct, with the same intent and objective, as the assault. Although the People do not agree with Gueyger on this point, we do. Finally, we construe the notation on the abstract of judgment that Gueyger's driver's license was suspended for life to be acknowledgement that his license will be revoked by the Department of Motor Vehicles pursuant to Vehicle Code section 13351.5 because he used a motor vehicle as a deadly weapon in the felony assault and we remand for the trial court to add this explicit finding to the abstract of judgment.

FACTS

May 7, 2010 Crimes

On May 7, 2010, Ponce and another, much shorter,*fn3 man entered a 7-Eleven store at El Camino and Northgate shortly before 4:00 a.m. They wanted to buy beer, but the clerk refused to sell it to them because it was after 2:00 a.m. The shorter man held his fist under his shirt at his waist and said he "got something." The clerk feared he had a weapon. The two men grabbed three cases of beer and ran off. Ponce returned and grabbed cigarettes.

May 9, 2010 Crimes

On May 9, 2010, at about 3:40 a.m., Ponce and Bravo entered a 7-Eleven store in Rio Linda. Gueyger was in a Jeep Cherokee waiting outside. Ponce asked for cigarettes. The clerk claimed Ponce pulled out a knife. Ponce and Bravo ran out with cigarettes, soda, and snacks (counts 1, 2, 3 and 5).

Sacramento County Sheriff's Department Deputies Greg Steindorf and Dennis Peyton responded to an aborted 911 call from the store. When they reached the store, the clerk had run into the street and was pointing down the street. The deputies saw the tail lights of a vehicle moving away and accelerated to catch up. They followed a Jeep Cherokee with no rear license plate. When the Jeep turned left against a light, the deputies activated their lights and siren.

The Jeep moved towards the right shoulder as if to pull over, but it continued into a residential neighborhood. The Jeep was traveling 50 miles per hour where the speed limit was only 25; it swerved and failed to stay within its lane (count 6). It then went out of control, hit a parked car and continued into a fence, bounced onto the curb, and stopped. The passenger doors opened and the suspects fled. Steindorf followed the fleeing suspects and caught Ponce (count 7).

While Peyton was still in the driver's seat of the patrol car, Gueyger backed up the Jeep and rammed the patrol car; Peyton felt the impact. Peyton heard the Jeep still accelerating; Gueyger was still trying to maneuver the Jeep from where it was "boxed in." Peyton got out of the patrol car and approached the front passenger side of the Jeep. He struck the window with his flashlight three times before it broke. Peyton leaned into the Jeep just past his shoulder and pointed his gun at Gueyger, telling him to stop the car or Peyton would kill him. Instead, Peyton felt the Jeep begin to accelerate and knew he had to get out or he would be dragged, possibly under the car. He got out of the way immediately and radioed for assistance (count 8). Another deputy found Gueyger three or four blocks away, covered in weeds.

DISCUSSION

I

Reduction of Felony Petty Theft with a Prior ...


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