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People v. Gangl

California Court of Appeals, Third District

November 14, 2019

The PEOPLE, Plaintiff and Respondent,
v.
Robert Michael GANGL, Defendant and Appellant.

         [Certified For Partial Publication.[*]]

         [254 Cal.Rptr.3d 786] APPEAL from a judgment of the Superior Court of Sacramento County, James P. Arguelles, Judge. Affirmed as modified. (Super. Ct. No. 16FE006058)

Page 59

         COUNSEL

         The Law Office of John L. Staley and John L. Staley, San Diego, CA, 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.

          OPINION

         Robie, Acting P. J.

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          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, 203 Cal.Rptr.3d 622, 373 P.3d 435.) 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, 203 Cal.Rptr.3d 622, 373 P.3d 435; People v. Johnson (2015) 61 Cal.4th 674, 686, 189 Cal.Rptr.3d 794, 352 P.3d 366');">352 P.3d 366; People v. Spiller (2016) 2 Cal.App.5th 1014, 1024, 207 Cal.Rptr.3d 151.) 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] [254 Cal.Rptr.3d 787] (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

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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, 232 Cal.Rptr.3d 614.)

          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 [254 Cal.Rptr.3d 788] backseat of Officer Kliebe’s patrol car. While officers waited for fingerprint results to confirm defendant’s identity, defendant maneuvered his hands

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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,

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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 [254 Cal.Rptr.3d 789] 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.)

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          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 ...


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