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People v. Roach11/30/2004
A jury convicted defendant William Roach of recklessly driving under the influence and causing bodily injury (two counts; Veh.Code, § 23153, subds. (a), (b)); assault with a deadly weapon (Pen.Code, § 245, subd. (a)(1)); hit and run causing serious and permanent injury (Veh.Code, § 20001, subd. (b)(1)); and simple assault (Pen.Code, § 240). The jury also found true allegations that defendant had a prior conviction for which he served a prison sentence within the meaning of Penal Code section 667.5, subdivision (b), and he personally inflicted great bodily harm on the assault with a deadly weapon charge (Pen.Code, § 12022.7, subd. (a)).
The trial court denied defendant's motion for new trial and sentenced him to seven years eight months in prison, calculated as follows: the upper term of four years on the conviction for assault with a deadly weapon, plus three years for the great bodily harm enhancement; eight months consecutive for hit and run with injury; and stayed terms of three years on the driving under the influence causing injury charges. The court also declined to impose the one-year prison enhancement.
On this appeal, defendant asserts: (1) ineffective assistance of counsel at the plea bargain stage; (2) the trial court erred by refusing to admit evidence of defense counsel's alleged practice of failing to communicate offers of settlement to his clients; (3) prosecutorial misconduct; (4) the court impermissibly used the same facts for imposing different sentences, and defendant suffered ineffective assistance of counsel when no objection was made to the dual use; and (5) the trial court erred by failing to stay the sentence on the hit and run with injury count as it was an indivisible continuous course of conduct with the assault with a deadly weapon.
In our opinion filed on June 29, 2004, we affirmed the judgment except for ordering certain clerical errors in the abstract of judgment to be corrected. We granted defendant's petition for rehearing to consider the impact of Blakely v. Washington (2004) 542 U.S. ---- [159 L.Ed.2d 403] (Blakely ) on the upper term sentence imposed on his conviction for assault with a deadly weapon. Having reviewed the supplemental briefs filed by the parties, we conclude Blakely does not apply because the court imposed the upper term in part based on defendant's prior convictions.
FACTUAL BACKGROUND
On the morning of February 2, 2002, Hamayak Simon Rostami was working as a cab driver, waiting for his next fare outside the Sacramento International Airport. As defendant got in the cab, Rostami placed his bag in the trunk. During the cab ride, defendant asked Rostami if he was a "highjacker" and an "Arab." Rostami noted the smell of alcohol in his cab. Eventually they reached defendant's apartment complex. The fare was $42. Rostami removed the bag from the trunk and handed it to defendant. Defendant refused to pay and asked Rostami whether he wanted $42 or a punch in the face.
*2 Defendant walked away towards his apartment. Rostami followed him on foot about 50 feet behind. Defendant began throwing cobblestones toward Rostami. Dennis Rosos, a resident of the complex, observed the defendant shouting profanities and throwing cobblestones at the cab driver. Rostami asked Rosos to call 9-1-1. Defendant quickly walked away and disappeared behind some buildings.
Rosos was still on the phone with 9-1-1 when he turned and saw defendant leave the parking lot in a white van. Defendant ran a red light, speeding down the street towards a 7-Eleven. Rosos followed defendant in his car into the 7- Eleven parking lot.
J. James Alarcon was using the pay phone in front of the 7-Eleven store that morning. Alarcon made eye contact with defendant as defendant pulled into the parking lot. Defendant smiled a
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