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People v. Williams6/30/2004
me may be inherently dangerous even though it is "possible" to commit it without great danger (Sewell, supra, 80 Cal.App.4th 690, 695-696) should, by analogy, mean that even if it may be theoretically possible to violate section 2800.2 without endangering human safety, a violation should still be considered a crime of violence for purposes of the multiple victim exception. Only under the most fanciful set of circumstances could an act of willful or wanton driving in an attempt to evade pursuing police officers not pose a danger to human safety.
For these reasons, we conclude a violation of section 2800.2 should be considered a crime of violence to which the multiple victim exception applies. The court therefore did not commit error in not staying the term imposed for count 3.
C. Remand for Resentencing
The People contend that if this court determines the trial court improperly imposed the term for the unlawful taking count, it should remand the case to permit the court to exercise its discretion whether to impose a consecutive or concurrent term for the Vehicle Code section 2800.2 violation. As we have, in fact, determined that the term imposed for the unlawful taking should have been stayed pursuant to Penal Code section 654, we must consider whether a remand for resentencing is appropriate.
Defendant contends the People cannot seek a remand for resentencing, because they did not cross-appeal from the judgment imposing a concurrent term for the violation of section 2800.2 and have not contended or shown that the concurrent term was an abuse of discretion. He is incorrect.
"The People have no right of appeal except as provided by statute. [Citation.]" (People v. Douglas (1999) 20 Cal.4th 85, 89.) Penal Code section 1238 sets forth the circumstances under which the People may appeal. The only sentence appeal authorized by section 1238 is an appeal from " he imposition of an unlawful sentence." (Pen. Code, § 1238, subd. (a)(10).) An "unlawful sentence" occurs when there is "the imposition of a sentence not authorized by law or the imposition of a sentence based upon an unlawful order of the court . . . ." (Ibid.) Thus, section 1238 provides that the People may only appeal from the imposition of a concurrent term when "an applicable statute requires that the term be consecutive." (Ibid.)
The People have not contended that the term for the violation of section 2800.2 was required by statute to be consecutive. It seems at least arguable that they could have made that contention. The three strikes law 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 . . . ." (Pen. Code, §§ 667, subd. (c)(6), 1170.12, subd. (a)(6).)
Our conclusion, ante, that the three felonies of which defendant was convicted arose from an "indivisible course of conduct" for purposes of section 654 does not necessarily mean they were committed on the "same occasion," or arose from the "same set of operative facts," for purposes of the three strikes law. The Supreme Court held in People v. Deloza, supra, 18 Cal.4th 585 that "the analysis for determining whether [the three strikes law] requires consecutive sentencing is not coextensive with the analysis for determining whether section 654 permits multiple punishment." (Id. at p. 595.) In fact, the court stated, " section 654 is irrelevant to the question of whether multiple current convictions are sentenced concurrently or consecutively." (Id. at p. 594.) "Rather, the term `same occasion' refers at least to a close temporal and spatial pro
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