Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

People v. Gangl

California Court of Appeals, Third District, Sacramento

November 14, 2019

THE PEOPLE, Plaintiff and Respondent,
v.
ROBERT MICHAEL GANGL, Defendant and Appellant.

         CERTIFIED FOR PARTIAL PUBLICATION [*]

          APPEAL from a judgment of the Superior Court of Sacramento County No. 16FE006058, James P. Arguelles, Judge. Affirmed as modified.

          The Law Office of John L. Staley and John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.

          Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Kimberley A. Donohue, Deputy Attorneys General, for Plaintiff and Respondent.

          ROBIE, ACTING P. J.

         Proposition 36 amended the three strikes law in a variety of ways, the most notable of which was to require a third strike defendant's current felony conviction be a serious or violent felony before he or she could be sentenced to 25 years to life for that conviction. (People v. Conley (2016) 63 Cal.4th 646, 652-653.) This amendment was generally seen as an ameliorative change meant to bring proportionality in sentencing and have a positive fiscal impact by reducing the prison population of prisoners who do not pose a threat to public safety. (Id. at p. 653; People v. Johnson (2015) 61 Cal.4th 674, 686; People v. Spiller (2016) 2 Cal.App.5th 1014, 1024.) A lesser known amendment, indeed one that was never discussed in the Official Voter Information Guide, (Official Voter Information Guide, Gen. Elec. (Nov. 6, 2012)) (Official Voter Information Guide), was a change to the sentencing provisions contained in the voter initiative version of the law, but not the legislative version, wherein the voters removed four words and inserted one word.[1] (Pen. Code, [2] §§ 667, subd. (c)(7); 1170.12, subd. (a)(7).)

         In the published portion of this opinion, we must decide what this amendment means and whether it changed the long-standing rule that trial courts can use discretion to sentence a prior serious or violent felony offender concurrently to multiple current convictions or whether the trial court is now mandated to sentence that offender consecutively to all of his current convictions. We conclude the trial court has the discretion to sentence a serious or violent felony offender concurrently to his or her current serious or violent felony convictions when those felonies were committed on the same occasion and arise out of the same set of operative facts. Those serious or violent felonies must then be sentenced consecutively to the sentences for nonserious and nonviolent convictions. In doing so, we agree with our colleagues from Division One of the First District Court of Appeal in Torres. (People v. Torres, supra, 23 Cal.App.5th at p. 201.)

         Here, defendant Robert Michael Gangl was convicted of multiple offenses after he stole a car and then stole the arresting officer's patrol vehicle, led officers on a high-speed chase, and eventually robbed a man in his own home as he tried to elude capture. The trial court sentenced defendant to an aggregate term of 18 years in state prison.

         Defendant raises several alleged sentencing errors on appeal. In addition to the one we outlined above, he contends the trial court should have stayed the terms on his convictions for unlawful possession of ammunition and evading a peace officer under section 654. The People dispute defendant's contentions and further argue that the abstract of judgment must be corrected to reflect the custody credits awarded by the court.

         Regarding these additional claims, we agree that his conviction for evasion must be stayed under section 654, but disagree as to his conviction for unlawful possession of ammunition. We also conclude the court failed to impose a sentence on count twelve, which resulted in an unauthorized absence of sentence, and that the abstract of judgment must be corrected to reflect the court's oral award of credits.

         We shall affirm defendant's convictions and remand for resentencing and correction of the abstract of judgment.

         FACTUAL AND PROCEDURAL BACKGROUND

         On March 22, 2016, California Highway Patrol Officer Scott Kliebe saw defendant driving a stolen car in Sacramento. When Officer Kliebe detained defendant, defendant gave him a false name.

         Defendant had a key ring with two shaved keys in his possession. One of the shaved keys started the stolen car. A search of the car revealed a loaded.12-gauge shotgun and a backpack containing burglary tools and ten.12-gauge shotgun shells.

         Defendant was handcuffed with his hands behind his back and placed in the backseat of Officer Kliebe's patrol car. While officers waited for fingerprint results to confirm defendant's identity, defendant maneuvered his hands to the front of his body. Officer Kliebe saw what defendant had done and handcuffed him again behind his back, securing his handcuffs to a strap in the rear of the patrol car.

         At defendant's request, Officer Kliebe called defendant's father. As Officer Kliebe leaned against the trunk of the patrol car speaking to defendant's father on the phone, he felt the vehicle lurch backwards against him. He turned and saw the patrol car's reverse lights were illuminated; defendant was in the driver's seat with his handcuffed hands in front of him on the steering wheel.

         Officer Kliebe told defendant to stop. Defendant ignored the command and continued to back up, turning toward the road. Defendant hit Officer Kliebe with the front bumper or mirror of the patrol car. He then backed the car out of the driveway and fled the scene.

         Officer Kliebe and another officer pursued defendant until they lost sight of him. Several deputies also followed defendant as he crossed multiple lanes into oncoming traffic. During the pursuit, defendant drove at an excessive rate of speed, hit two cars, and ran a red light.

         Defendant eventually jumped out of the patrol car and hopped the fence of a nearby home. He attempted to enter several homes, and smashed through the back sliding glass door of T. I. and P. I.'s home. Inside, as P. I. ran to the master bedroom, defendant demanded that T. I. give him his car keys. T. I. gave defendant the keys to his wife's car and then later the keys to his own car. P. I. triggered a panic alarm, and defendant fled the home, dropping both sets of car keys in the backyard.

         Defendant continued fleeing through the neighborhood, banging on doors and shattering windows along the way. He eventually was detained and arrested.

         Defendant was convicted of unlawfully driving or taking a vehicle (Veh. Code, § 10851, subd. (a), count one); being a felon in possession of a firearm (§ 29800, subd. (a)(1), count two); being a felon in possession of ammunition (§ 30305, subd. (a)(1), count three); unlawfully driving or taking a police vehicle (Veh. Code, § 10851, subd. (b), count four); assault with a deadly weapon on a peace officer with force likely to produce great bodily injury (§ 245, subd. (c), count five); unlawful evasion of a pursuing peace officer with wanton disregard for safety (Veh. Code, § 2800.2, subd. (a), count six); first degree residential robbery (§ 211, count seven); vandalism (§ 594, subd. (a), count twelve); providing false identification to a peace officer (§ 148.9, subd. (a), count thirteen); and possession of burglary tools (§ 466, count fourteen).[3] In a subsequent proceeding, the trial court found that defendant had a prior strike conviction.[4] (§§ 667, subds. (b)-(i), 1192.7.)

         The court sentenced defendant to an aggregate term of 18 years in state prison: four years on count seven, doubled to eight years for the strike prior, plus consecutive terms of 16 months each on counts one, two, three, and six; two years on count four; and two years eight months on count five. The trial court imposed no time on count twelve and concurrent terms of six months each on misdemeanor counts thirteen and fourteen.[5] The court awarded defendant 718 actual days and 107 conduct days for a total of 825 days of credit.

         DISCUSSION

         I

         Sentencing Under Section 1170.12

         Defendant was charged under both the legislative version and the initiative version of the three strikes law; thus, for our purposes he was sentenced under the voter approved amendment found in section 1170.12, subdivision (a). That provision provides: “Notwithstanding any other provision of law, if a defendant has been convicted of a felony and it has been pled and proved that the defendant has one or more prior serious and/or violent felony convictions, as defined in subdivision (b), the court shall adhere to each of the following: [¶]... [¶] (6) If there is a current conviction for more than one felony count not committed on the same occasion, and not arising from the same set of operative facts, the court shall sentence the defendant consecutively on each count pursuant to this section. [¶] (7) If there is a current conviction for more than one serious or violent felony as described in subdivision (b), the court shall impose the sentence for each conviction consecutive to the sentence for any other conviction for which the defendant may be consecutively sentenced in the manner prescribed by law.” (§ 1170.12, subd. (a)(6) & (7), as amended by Prop. 36, § 4, eff. Nov. 6, 2012.) The amendment can be found in subdivision (a)(7) of section 1170.12, where the voters inserted “subdivision (b)” where the words “paragraph (6) of this subdivision” used to be. (See Official Voter Information Guide.)

         The People contend that upon a plain reading of the statute as amended, the trial court is required to consecutively sentence a defendant with multiple current serious or violent felony convictions to all of his or her current convictions. Defendant argues we are required to follow preamendment case law to interpret the statute as allowing for concurrent sentencing for all felonies occurring on the same occasion and arising out of the same set of operative facts.[6] We disagree with both of the parties, and reach the same conclusion our colleagues did in Torres, although in a slightly different way. Accordingly, the trial court has discretion to sentence a serious or violent felony offender concurrently to his or her current serious or violent felonies when those offenses were committed on the same occasion and arise out of the same set of operative facts, it then must sentence those serious or violent felonies consecutively to any other conviction, meaning nonserious and nonviolent felony and misdemeanor convictions. (People v. Torres, supra, 23 Cal.App.5th at p. 201.)

         A

         Principles Of Statutory Interpretation

         “In construing statutes adopted by the voters, we apply the same principles of interpretation we apply to statutes enacted by the Legislature. [Citation.] ‘ “The fundamental purpose of statutory construction is to ascertain the intent of the lawmakers so as to effectuate the purpose of the law ”' [Citation.] We begin with the language of the statute, to which we give its ordinary meaning and construe in the context of the statutory scheme.” (People v. Johnson, supra, 61 Cal.4th at p. 682.) “But ‘[t]he words of the statute must be construed in context, keeping in mind the statutory purpose, and statutes or statutory sections relating to the same subject must be harmonized, both internally and with each other, to the extent possible.' [Citation.] ‘Where uncertainty exists[, ] consideration should be given to the consequences that will flow from a particular interpretation.' ” (People v. Valencia (2017) 3 Cal.5th 347, 357-358.)

         “The voters are presumed to have been aware of existing laws at the time the initiative was enacted.” (Professional Engineers in California Government v. Kempton (2007) 40 Cal.4th 1016, 1048.) Additionally, “ ‘ “[w]hen legislation has been judicially construed and a subsequent statute on a similar subject uses identical or substantially similar language, the usual presumption is that the Legislature [or the voters] intended the same construction, unless a contrary intent clearly appears.”' ” (People v. Fusting (2016) 1 Cal.App.5th 404, 409; accord, People v. Burton (1989) 48 Cal.3d 843, 861-862.)

         Questions regarding the proper interpretation of a voter initiative, like those of statutory interpretation, are reviewed on appeal de novo. (Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1212 [rules of statutory construction apply to voter initiatives]; Argaman v. Ratan (1999) 73 Cal.App.4th 1173, 1176.)

         B

         The Three Strikes Law And Proposition 36

         “Prior to its amendment by the Act, the Three Strikes law required that a defendant who had two or more prior convictions of violent or serious felonies receive a third strike sentence of a minimum of 25 years to life for any current felony conviction, even if the current offense was neither serious nor violent.” (People v. Johnson, supra, 61 Cal.4th at pp. 680-681.) A primary purpose of the three strikes law was to “restrict the discretion of ‘soft-on-crime judges' ” and “ ‘to ensure longer prison sentences.' ” (People v. Garcia (1999) 20 Cal.4th 490, 500-501.)

         In Hendrix, our Supreme Court interpreted the sentencing provisions of the legislative version of the three strikes law. (People v. Hendrix (1997) 16 Cal.4th 508.) It did so by first determining the meaning of section 667, subdivision (c), which provided similar language to its current version and to the initiative version, both in effect currently and at the time of the decision. The provision read: “ ‘Notwithstanding any other law, if a defendant has been convicted of a felony and it has been pled and proved that the defendant has one or more prior felony convictions..., the court shall adhere to each of the following, '... [¶]... [¶] ‘[I]f there is a current conviction for more than one felony count not committed on the same occasion, and not arising from the same set of operative facts, the court shall sentence the defendant consecutively on each count pursuant to subdivision (e).' ” Our Supreme Court determined that this provision “[b]y its terms, ... applies to any current felony conviction, ” whether that current felony conviction be serious or violent. (Hendrix, at p. 512.)

         The court then analyzed subdivision (c)(7) of section 667, which provided: “ ‘If there is a current conviction for more than one serious or violent felony as described in paragraph (6), the court shall impose the sentence for each conviction consecutive to the sentence for any other conviction for which the defendant may be consecutively sentenced in the manner prescribed by law.' ” Since “[t]he most logical meaning of the reference to ‘paragraph (6)' in subdivision (c)(7) is that it refers to subdivision (c)(6), ” the court concluded, “ ‘more than one serious or violent felony as described in paragraph (6)' refers to multiple current convictions for serious or violent felonies ‘not committed on the same occasion, and not arising from the same set of operative facts.' ” (People v. Hendrix, supra, 16 Cal.4th at p. 513.) “Thus, when a defendant is convicted of two or more current serious or violent felonies ‘not committed on the same occasion, and not arising from the same set of operative facts,' not only must the court impose the sentences for these serious or violent offenses consecutive to each other, it must also impose these sentences ‘consecutive to the sentence for any other conviction for which the defendant may be consecutively sentenced in the manner prescribed by law.' By implication, consecutive sentences are not mandated under subdivision (c)(7) if all of the serious or violent current felony convictions are ‘committed on the same occasion' or ‘aris[e] from the same set of operative facts.' ” (Hendrix, at p. 513) The Hendrix court's interpretation of the three strike sentencing scheme was the law when Proposition 36 was presented to the voters.

         As discussed, Proposition 36 made the following changes to the language of section 1170.12, subdivision (a)(7): “If there is a current conviction for more than one serious or violent felony as described in paragraph (6) of this subdivision (b), the court shall impose the sentence for each conviction consecutive to the sentence for any other conviction for which the defendant may be consecutively sentenced in the manner prescribed by law.” (§ 1170.12, subd. (a)(6) & (7), as amended by Prop. 36, § 4, eff. Nov. 6, 2012, boldface and strike out added; Official Voter Information Guide, p. 107.)

         While no comments to this amendment were made in the Official Voter Information Guide, several comments to other changes in the Official Voter Information Guide regarding the three strikes law were. (See Official Voter Information Guide.) “As evidenced by the Voter Information Guide, six arguments were advanced in favor of the Act: ‘(1) “make the punishment fit the crime”; (2) “save California over $100 million every year”; (3) “make room in prison for dangerous felons”; (4) “law enforcement support”; (5) “taxpayer support”; and (6) “tough and smart on crime.” [Citations.] The ballot materials also provide that ‘Prop. 36 will help stop clogging overcrowded prisons with non-violent offenders, so we have room to keep violent felons off the streets' and ‘Prop. 36 will keep dangerous criminals off the streets.' ” (People v. Spiller, supra, 2 Cal.App.5th at p. 1024.) Our ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.