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People v. Garcia4/16/2003
Here we stifle "creative accounting" by a prosecutor who attempts to create multiple crimes out of just one. As our California Supreme Court indicated over 100 years ago: "Although, when a man has done a criminal act, the prosecutor may carve as large an offense out of the transaction as he can, yet he is not at liberty to cut but once." (People v. Stephens (1889) 79 Cal. 428, 432.)
Gilberto C. Garcia appeals after a jury found him guilty of, inter alia, three counts of felony evading from a peace officer. (Veh. Code, § 2800.2, subd. (a). He was sentenced to an aggregate term of 12 years 4 months state prison. We reverse on two counts of felony evading (counts 3 & 4). We nevertheless affirm the 12 year 4 month sentence because the 6 year prison terms imposed on the two contested felony evading counts were stayed. Thus, there is no need for resentencing.
Facts
Appellant took a 1990 Toyota pickup in front of a 7-Eleven store in Santa Maria. The owner was inside delivering newspapers. The 7-Eleven employee immediately reported the offense to the police.
Santa Maria Police Officer Russell Mengel responded, saw the pickup, turned on his emergency lights and siren, and gave chase. Appellant accelerated away leading Officer Mengel and two other pursing police vehicles on a 30 minute chase. Appellant drove at speeds in excess of 100 miles per hour. He ran 32 stop signs and 4 stoplights, drove on the wrong side of the road, and almost hit a truck and car. Appellant turned into a blocked alley and was arrested. When asked why he fled, appellant replied: "Because I'm stupid."
Multiple Convictions For Evading
Appellant contends that the trial court erred in denying his motion to dismiss two of the counts (counts 3 & 4) for felony evading. The trial court found that multiple counts and convictions were permissible because each count named a different officer.
In Wilkoff v. Superior Court (1985) 38 Cal.3d 345, 349 our Supreme Court held that "a charge of multiple counts of violating a statute is appropriate only where the actus reus prohibited by the statute - the gravamen of the offense -- has been committed more than once." There, the defendant was charged with multiple counts of felony driving under the influence (§ 23153) arising out of a single incident in which six persons were injured or killed. The court held that only one count could be charged because the actus reus of the offense did not include causing bodily injury. (Id., a p. 352.) "A defendant may properly be convicted of multiple counts for multiple victims for a single criminal act only where the act prohibited by the statute is centrally an 'act of violence against the person.' [Citation.]" (Id., at p. 351.)
The cases initially relied upon by the Attorney General are inapposite. (People v. Hall (2000) 83 Cal.App.4th 1084, 1096 and fn. 6 [three counts of brandishing firearm at officers not a crime of violence but defendant may have waived multiple conviction issue by pleading guilty]; People v. Ortega (1998) 19 Cal.4th 686, 700 [multiple convictions for carjacking and robbery proper based on single course of conduct.] Unlike robbery or carjacking, which are crimes of violence, felony evading, as defined by the Legislature, is not a crime of violence. Having considered Wilkoff v. Superior Court, supra, 38 Cal.3d 345, the Attorney General has now confessed error.
At trial, the prosecutor argued that, in order to convict for felony evading, the jury had to find that appellant drove the pickup in "willful and wanton disregard for the safety of persons or property. If you think he stole that truck, . . . that he drove into the ground s
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