For Partial Publication.[*]]
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)
Office of John L. Staley and John L. Staley, San Diego, CA,
under appointment by the Court of Appeal, for Defendant and
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.
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, 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. [254 Cal.Rptr.3d 787] (Pen.
Code, � � 667, subd. (c)(7); 1170.12, subd.
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, 232 Cal.Rptr.3d 614.)
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
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.
shall affirm defendant’s convictions and remand for
resentencing and correction of the abstract of judgment.
FACTUAL AND PROCEDURAL BACKGROUND
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
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
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
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.
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.
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). In a subsequent proceeding, the trial
court found that defendant had a prior strike
conviction. (� � 667, subds. (b)-(i), 1192.7.)
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. The court awarded
defendant 718 actual days and 107 conduct days for a total of
825 days of credit.
Under Section 1170.12
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.)
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. 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 ...