People v. DurantPeople v. Durant
Following the holdings of People v. Hendrix (1997)
In 1996, Michael Anthony Durant was convicted by a jury of residential burglary (Pen. Code,
On appeal, this court affirmed the convictions and true findings, but remanded the case for resentencing in light of People v. Superior Court (Romero) (1996)
At the time of resentencing, Durant asked the court to strike all but one of his serious/violent felony priors under section 1385 in order to avoid the life term required by the three strikes law or, in the alternative, to run his life terms concurrently rather than consecutively. The court denied his request to strike any priors, but imposed a new sentence of 30 years to life, consisting of 3 concurrent 25-year-to-life terms plus the 5-year prior serious felony conviction enhancement.
The People appeal,
Facts at Trial:
Because the facts presented at trial are relevant to the question of whether the trial court imposed an authorized sentence on remand, we restate those facts from our unpublished opinion in Durant’s first appeal, People v. Durant, supra, D025790/D026456.
“On September 19, 1995, a San Diego Police Department surveillance team was assigned to follow Michael and Richard Durant. The surveillance was conducted from the ground and air.
“Police observed as Richard got into his vehicle, drove to El Cajon, and eventually arrived at Michael’s apartment. Richard went into Michael’s apartment and the two returned to the vehicle. They raised up the hood of the vehicle and were doing something in front of the car.
“Richard and Michael got into the vehicle and drove to a shopping center which contained a Thrifty drugstore. Michael entered the store for a period of time and returned to the vehicle. When Michael returned to the car, the two men drove down Austin Street.
“First the car went westbound and then, as if to ‘clear[] his tail,’ the car made a U-tum and proceeded eastbound on Austin Street. The aerial surveillance team warned the ground police units to stay back, but maintained surveillance from the air.
“Aerial surveillance was blocked by trees for a short period and the two men were next observed as Richard dropped Michael off outside a condominium complex on Austin Street. There was a green electrical box near the place where Richard dropped Michael off.
“Richard returned to the Thrifty shopping mall. Michael wandered through the condominium complex near where Richard had dropped him off. Michael again used surveillance avoidance techniques, such as going one direction and then suddenly turning and backtracking in the direction from which he had come.
“Michael approached a comer house[] belonging to Richard Hatch numerous times. He returned several times to the street to look up and down and would then return to the house. Michael eventually walked to the rear of the Hatch house and went underneath a patio where there was a sliding glass door. Michael remained in that area for a considerable time before reappearing and returning to the street. Fresh pry marks were later discovered on the sliding glass door.
“After a few minutes, Michael returned to walking through the complex and looking at condominiums. Michael next approached the home of Maggie Altadonna. Michael went to the rear of the Altadonna home and knelt down near the sliding glass door for a period of about five to six minutes. Michael left the house and returned to looking at different homes. Later, fresh scrapes and marks were found on the door.
“Next Michael walked down several streets, eventually approaching Randall Menser’s house through the backyard. A photojoumalist was shooting footage of the surveillance and followed Michael onto Menser’s property. The photojoumalist observed an appliance and a bag containing Coke cans in the backyard of the home.
“The aerial surveillance team circled around and observed Michael near Menser’s window, apparently trying to force the window open. After 15 to 20 minutes, the team saw Michael come out of the patio door area carrying an unidentified object, which was later determined to be a VCR and a remote control. Michael brought the object out toward the street and hid it in some bushes near a green electrical box.
“Meanwhile ground units had continued surveillance on Richard. After returning to the Thrifty shopping mall, Richard parked in front of a liquor store, opened the hood of his car, and proceeded to walk to the area of a telephone booth and make a call. Richard then walked to his car, closed the hood, and returned to the pay phone. Police could not determine whether
“Eventually, Richard returned to pick Michael up by the green electrical box near the condominium complex, near where he had dropped Michael off earlier. The green electrical box was visible from Richard’s position at the Thrifty shopping center. At this time, Richard was driving back and forth slowly in the area of the electrical box apparently waiting for Michael.
“Michael came out of some bushes near the electrical box and began to look up and down the street. Michael jogged down the street until he met Richard’s car. The two men drove over to the bushes and Michael retrieved the VCR. Shortly thereafter, the police intercepted the vehicle and arrested Richard and Michael Durant.
“Police searched Richard’s car and found Menser’s VCR and remote control in a bag in the back seat and a bag containing seven cans of Coca-Cola. A search of the engine compartment revealed a cosmetic bag containing a hypodermic needle, spoon, lighter, razor blade, cotton swab, and two pieces of aluminum foil, each containing a substance later determined to be heroin. The net weight of both packages was .06 grams.”
Facts at Resentencing:
On remand, after considering the original sentencing data, Durant’s supplemental sentencing memorandum and attachments, and hearing argument, the court exercised its discretion not to strike any of Durant’s 13 prior convictions under Romero. Before defense counsel began arguing Durant’s alternative motion to exercise its discretion to run his count 2 and 3 attempted burglaries concurrently with his count 1 burglary, the court stated: ”1 think I’m persuaded that under the Hendrix [supra,
Defense counsel asked the court to consider the same factors that were argued regarding the court’s discretion to strike a prior to exercise its discretion to impose concurrent rather than consecutive terms. Counsel stressed Durant’s changed behavior and attitude during this period of incarceration as compared to his former periods of confinement, his age, his family support and the sufficiency of punishment and protection for society by an indeterminate term of 30 years to life in this case. Counsel also stated: “[T]here was one singular intent and purpose here, and that was to steal something from a residence in order that [Durant] could then take that merchandise to a pawnshop to sell. The first two homes he was not able to get into. When he was able to enter the third home he did in fact take the VCR and the cokes and he left. He didn’t then go to the other houses. He didn’t go back to the first two. He didn’t attempt any other houses. HQ He signaled his brother, as I recall the facts, got the goods, they got in the car, and they were leaving the area when they were apprehended. So I think that is significant, in that it shows that was truly his intent; he was going to burglarize a house to get something to pawn, when he realized that intention he stopped and he left. If he had been able to burglarize the first house that would have been the end of it.”
The court expressed its discomfort with making such an assumption about Durant’s intent, but acknowledged it was a reasonable argument to make. The court was concerned because the crimes involved separate victims and separate homes, and “concurrent sentencing, arguably, doesn’t adequately or reasonably take into account the assault, if you will, upon the residents or the castle of three different individual parties.”
After considering the comments of counsel, the court concluded: “I just don’t think ... it does impermissible violence or unreasonable violence to
After further consideration, the court stated, “I think I’m satisfied that in the conscious exercise of discretion, which I think I have, that concurrent sentencing is appropriate ... for the three counts.” It then imposed the 30-year-to-life term from which the People have appealed.
Discussion
The parties agree this appeal is only proper under section 1238, subdivision (a)(10)
The parties further agree that the Supreme Court in Deloza determined the “same occasion” requirement “refers at least to a close temporal and spatial proximity between the acts underlying the current convictions” (People v. Deloza, supra, 18 Cal.4th at pp. 595, 599) and that “the analysis for determining whether subdivision (a)(6) and (a)(7) [of section 1170.12] requires consecutive sentencing is not coextensive with the analysis for determining whether section 654 permits multiple punishment.” (People v. Deloza, supra, at p. 595.)
Rather, the parties only dispute whether the evidence reveals Durant’s current crimes were committed on different occasions and arose out of different facts. The People contend
In conformance with the holdings in Hendrix and Deloza, the rules of statutory construction and a review of case authorities, we narrowly interpret the agreed upon pertinent phrases “committed on the same occasion” and “arising from the same operative facts” to include the additional factors of the nature and elements of the current offenses and conclude the trial court erroneously evaluated the facts in light of the law to impose an unlawful sentence.
In People v. Bell (1998)
Subsequently, in Deloza our Supreme Court noted, “[n]othing in either the language of subdivision (a)(6) and (a)(7) [of section 1170.12] or its legislative history suggests the electorate intended [the words ‘same occasion’] to have a special or peculiar import different from their ordinary, generally understood meaning.” (People v. Deloza, supra,
In Deloza, the multiple crimes committed by the defendant occurred “essentially simultaneously against the same group of victims” when he entered a furniture store, robbed four people and left. (People v. Deloza, supra,
Although the court in Deloza did not address what “additional factors may be found relevant in defining the precise parameters of [the phrase ‘same occasion’] in future cases” (People v. Deloza, supra,
Also, in commenting on an alternative interpretation of the term “same occasion” posited by the Attorney General, which equated it with the meaning of the term “separate occasions” in section 667.6, subdivision (d), the court in Deloza noted “. . . it is not clear how helpful the term ‘separate occasions’ ... is in interpreting the phrase ‘not committed on the same occasion’ ” (People v. Deloza, supra,
On the other hand, one California Court of Appeal addressed the “separate occasions” language used in section 667.6, subdivision (d) (People v. Newsome (1997)
Because the multiple current crimes at issue in Hendrix, Deloza, Newsome and Bell were committed in such a close time and space as to have occurred almost simultaneously, those reviewing courts were not required to go beyond the ordinary, generally understood meaning of the phrase “same occasion” to find the trial court retained the discretion to impose either concurrent or consecutive sentences as to such crimes. However, when the current multiple crimes are not committed so closely in time and proximity, so that they occurred at times separated by more than seconds, and in separate places, and they involved different victims, as in this case, the question becomes what additional factors are involved in determining whether consecutive terms are mandatory? To answer this query, we turn to the language of the statute, specifically to the conjunctive phrase of section 667, subdivision (c)(6) and (7) that the offenses arose from “the same set of operative facts” since such is not necessarily duplicative of the term “same occasion” and affects the determination of whether consecutive terms must be imposed.
We are aware the phrase “the same set of operative facts” has been judicially interpreted in collateral estoppel and election of remedies cases to refer to those facts which prove a criminal or civil defendant’s liability for a particular wrongful act. (People v. Nunez (1986)
In applying this definition to any particular case, the nature and elements of the current charged offense becomes highly relevant.
Although consideration of such additional criteria may limit the cases in which a defendant might benefit from the trial court’s discretionary determination of whether to impose concurrent rather than consecutive terms, under the three strikes law such narrow construction is consistent with the enactor’s intent to “ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses.” (§ 667, subd. (b); People v. Newsome, supra,
Applying the above described additional factors in the context of the present case, we conclude Durant committed three separate offenses, two attempted burglaries which by their nature and elements were completed before he committed a burglary. The crimes did not occur on the “same occasion” as that term is commonly understood. Nor did the duration of the crimes overlap, each being complete when Durant attempted to enter or successfully entered a residence and then left to go to another residence. (See People v. Montoya, supra, 7 Cal.4th at pp. 1046-1047 [“the duration of a burglary, for the purpose of aider and abettor liability, extends until the perpetrator’s departure from the structure”].)
Our review of the record reveals the resentencing in this case was conducted after the decision in Hendrix but before the decision in Deloza. Not having the wisdom of the court in Deloza, the trial court appears to have determined it had the discretion to impose concurrent terms by finding the defense argument reasonable that the two attempted burglaries and the burglary committed by Durant occurred during one criminal course of conduct according to Durant’s presumed “single” intent or plan to steal something and then leave the housing complex. To reach this conclusion, however, the court necessarily relied upon an analysis using the language of cases interpreting section 654, which is
Because there is no direct evidence in the record of such an intent to only take from one place, we find the argument Durant would have stopped after doing so to be wholly speculative, since he could have also decided to press his luck further after hitting one house successfully in the same general area. Although intent may be a factor to consider under certain circumstances, here it is of limited value because the general intent to steal to obtain money is so broad and inclusive. (See People v. Washington, supra, 50 Cal.App.4th at pp. 577-578.) Such intent can apply to one theft or to a series of bank robberies or burglaries which are committed for the purposes of obtaining money, regardless of when and where they are committed. Clearly, the fact a person robs several liquor stores at different times and locations on the same day while harboring the same intent of obtaining money does not compel a finding each robbery arose out of the same operative facts. Similarly, the commission of one robbery of a store a day for several days to obtain money would not be crimes committed on the same occasion or arise out of the same operative facts.
Interestingly, at the original sentencing, which was closer to the time of trial, the court did not agree with counsel’s argument Durant would have stopped “at just one” crime had he been able to obtain something of value to sell for money from the first house in the complex.
Contrary to Durant’s reliance on the recent case of People v. Hall (1998)
In sum, we conclude the People’s appeal is proper and the unauthorized sentence must be vacated and the matter remanded so an authorized sentence may be imposed.
Disposition
The judgment is reversed with respect to the sentence imposed and remanded for further proceedings consistent with the views expressed in this opinion.
Benke, Acting P. J., and Nares, J., concurred.
On February 3, 1999, the opinion was modified to read as printed above.
Notes
All statutory references are to the Penal Code unless otherwise specified.
Durant’s jury trial was conducted jointly with his codefendant brother Richard, whose judgment was affirmed on appeal.
We have taken judicial notice of the records of Durant’s first trial. (
The court again struck the one-year prison prior conviction enhancement.
Durant’s appeal from the sentence is addressed separately in People v. Durant (Jan. 5, 1999) D030392 (nonpub. opn.), as it raises a legal issue not relevant to this appeal.
Section 1238 provides in pertinent part that: “(a) An appeal may be taken by the people from any of the following: [ID . . . ffl (10) The imposition of an unlawful sentence, . . . except that portion of a sentence imposing a prison term which is based upon a court’s choice that a term of imprisonment... be consecutive or concurrent to another term of imprisonment, unless an applicable statute requires that the term be consecutive.”
Because Durant was convicted of burglary and two attempted burglaries, all serious felony offenses under the three strikes law, he is subject to sentencing under section 1170.12, subdivisions (a)(6), (7) and (c)(2)(B).
Section 1170.12, subdivision (a)(6) provides: “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.”
Section 1170.12, subdivision (a)(7) states: “If there is a current conviction for more than one serious or violent felony as described in paragraph (6) of this subdivision, 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.”
Section 1170.12, subdivision (c)(2)(B) provides that “The indeterminate term described in subparagraph (A) of paragraph (2) of this subdivision shall be served consecutive to any other term of imprisonment for which a consecutive term may be imposed by law. Any other term imposed subsequent to any indeterminate term described in subparagraph (A) of paragraph (2) of this subdivision shall not be merged therein but shall commence at the time the person would otherwise have been released from prison.”
The parties dispute the standard of our review. Durant contends we must affirm the trial court’s ruling if it is supported by substantial evidence. (People v. McKee (1995)
Moreover, although we have taken judicial notice of two pages from the San Diego County Thomas Guide as requested by the People, we do not base our decision on such materials. Those pages were not before the trial court either at trial or at the pertinent sentencing hearing. We note, however, that the probation officer’s reported description of the crimes that occurred at different residences on different streets of the housing complex, in addition to the record at trial that was before the sentencing judge (who was also the trial judge), is sufficient from which time and distance can be inferred for purposes of our review.
Although we do not use such here, we do not read Deloza as foreclosing the possibility the definition of the “separate occasions” language under section 667.6, subdivision (d) might be of some assistance in some future case. (See People v. Deloza, supra,
Former section 186.22, subdivision (e), provided that a “ ‘ “pattern of criminal gang activity” ’ means the commission, attempted commission, or solicitation of certain offenses, ‘provided . . . the offenses are committed on separate occasions, or by two or more persons.’ ” (People v. Deloza, supra,
At the original sentencing, the court found consecutive terms proper and mandatory under the three strikes law because Durant had committed three separate crimes against the interests of three different victims.
Because the record is confusing as to whether the trial court denied the motion to strike because it erroneously believed it had discretion to impose concurrent terms for Durant’s current convictions, on remand the court will have yet another opportunity to address that issue in light of People v. Williams (1998)