P. v. Williams

Filed 5/29/07 P. v. Williams CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
TONY LAVELLE WILLIAMS,
Defendant and Appellant.
B190668
(Los Angeles County
Super. Ct. No. LA050504)
APPEAL from a judgment of the Superior Court of Los Angeles County,
John Fisher, Judge. Affirmed in part, reversed in part and remanded.
Shawn O’Laughlin, under appointment by the Court of Appeal, for
Defendant and Appellant.
Bill Lockyer, Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves
and Dane R. Gillette, Chief Assistant Attorneys General, Pamela C. Hamanaka,
Senior Assistant Attorney General, Scott A. Taryle, Susan S. Pithey and David A.
Wildman, Deputy Attorneys General, for Plaintiff and Respondent.

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Tony Lavelle Williams appeals from a judgment entered following a jury
trial in which he was convicted of second degree robbery, count 1 (Pen. Code,
§ 211), evading an officer causing serious injury, count 2 (Veh. Code, § 2800.31
),
leaving the scene of an accident with the finding that he personally inflicted great
bodily injury upon his victim within the meaning of Penal Code section 12022.7,
subd. (a), count 3 (Veh. Code, § 20001, subd. (a)),2
and two counts of hit and run
driving, misdemeanors, counts 4 and 5 (Veh. Code, § 20002, subd. (a)).
Sentenced to prison for a total of eight years and four months, he requests that we
1
Vehicle Code section 2800.3, subdivision (a) provides in pertinent part,
“Whenever willful flight or attempt to elude a pursuing peace officer in violation of
[Vehicle Code] Section 2800.1 proximately causes serious bodily injury to any person,
the person driving the pursued vehicle, upon conviction, shall be punished by
imprisonment in the state prison for three, five, or seven years . . . .”
Vehicle Code section 2800.1 provides in pertinent part, “(a) Any person who,
while operating a motor vehicle and with the intent to evade, willfully flees or otherwise
attempts to elude a pursuing peace officer’s motor vehicle, is guilty of a misdemeanor
punishable by imprisonment in a county jail for not more than one year if all of the
following conditions exist: [¶] (1) The peace officer’s motor vehicle is exhibiting at
least one lighted red lamp visible from the front and the person either sees or reasonably
should have seen the lamp. [¶] (2) The peace officer’s motor vehicle is sounding a
siren as may be reasonably necessary. [¶] (3) The peace officer’s motor vehicle is
distinctively marked. [¶] (4) The peace officer’s motor vehicle is operated by a peace
officer . . . and that peace officer is wearing a distinctive uniform.”
2
Vehicle Code section 20001 provides in pertinent part, “(a) The driver of any
vehicle involved in an accident resulting in injury to any person, other than himself or
herself, or in the death of any person shall immediately stop the vehicle at the scene of
the accident and shall fulfill the requirements of [Vehicle Code] Sections 20003 and
20004. [¶] (b)(1) Except as provided in paragraph (2), any person who violates
subdivision (a) shall be punished by imprisonment in the state prison . . . .”
Penal Code section 12022.7, subdivision (a) provides: “Any person who
personally inflicts great bodily injury on any person other than an accomplice in the
commission of a felony or attempted felony shall be punished by an additional and
consecutive term of imprisonment in the state prison for three years.”

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review the sealed transcript of the in camera hearing to determine whether the
trial court improperly limited the scope of discovery turned over to the defense
pursuant to appellant’s Pitchess3
motion. He also claims the trial court erred in
imposing multiple punishments in violation of Penal Code section 654 and in
imposing the upper term for count 3 in violation of the Sixth and Fourteenth
Amendments and Blakely v. Washington (2004) 542 U.S. 296, 301.4
For reasons
explained in the opinion, we reverse the sentence and remand for resentencing.
FACTUAL AND PROCEDURAL SUMMARY
On October 30, 2005, at approximately 4:30 p.m., Ramesh Patel was
working at King’s Liquor on Saticoy Street in the County of Los Angeles when
appellant entered the store carrying a gun and wearing a mask. He ordered
Mr. Patel to open the cash register and to sit on the floor. Appellant grabbed
money from the register and took lottery tickets. He then left through the back
door.
Los Angeles Police Officer Jack Chavez was sitting in his patrol car with
his partner Officer Abolfazlian when he saw appellant running away from King’s
Liquor Store. The officers followed appellant in their vehicle down an alley and
saw him get into a parked Saturn vehicle. The officers were approximately one
car length behind appellant and activated the patrol car’s forward facing red light
and siren. The officers chased appellant as he “sped off southbound through the
3
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
4
We asked the parties to file supplemental briefs regarding this sentencing issue
following the opinion of the United States Supreme Court in Cunningham v. California
(2007) 549 U.S. ___ [127 S.Ct. 856]. We have considered their responses.

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alley.” Appellant drove at a high rate of speed, sometimes up to 70 miles per
hour, through residential areas, and failed to stop at several stop signs.
At the intersection of Saticoy and Milwood Avenue, appellant’s vehicle
collided with Efrain Rivera, who was walking across the street. Mr. Rivera was
thrown 20 to 25 feet up into the air and fell to the ground. Appellant drove away
without stopping. Mr. Rivera sustained two fractured ribs, a shattered rib, and
both legs were dislocated.
Officer Chavez and his partner continued to follow appellant, who was
driving 60 to 75 miles per hour in a residential area. During the pursuit, their
lights and siren were activated. Appellant continued to drive through
intersections without stopping at stop signs. After he collided with two parked
cars, he exited his own car and fled on foot. He was arrested a half block from
where he crashed his car. Inside his pocket he had a receipt from a drug store
dated October 30, 2005 for items purchased, which included a mask, T-shirt and
gloves. On the floorboard of appellant’s vehicle were lottery tickets, money, a
Halloween mask, and other miscellaneous clothing.
Following waiver of his Miranda5
rights, appellant stated this robbery was
the only one he had ever committed; he had been a regular customer of the store
for several years and knew the people there. He claimed “he was down on his
luck, bills were piling up. His car had been towed and he needed some money so
. . . he purchased the sweat shirt, the mask and some other items and committed
the robbery.” He was also very concerned about the person he struck during the
pursuit.
The court sentenced appellant to a total of eight years and four months.
The court selected count 3 as the base term and sentenced appellant to the upper
5
Miranda v. Arizona (1966) 384 U.S. 436.

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term of three years plus a consecutive three years for the great bodily injury
enhancement. Appellant was sentenced to a consecutive one-year term and a 16-
month term for counts 1 and 2, respectively.6
DISCUSSION
I
Prior to trial, appellant brought a discovery motion pursuant to Pitchess v.
Superior Court (1974) 11 Cal.3d 531 requesting personnel records of the two
police officers who interviewed him following his arrest. Appellant alleged these
officers fabricated incriminating statements in their police report. The court
granted the Pitchess motion in part. The court determined it would examine
complaints relevant to “falsifying police reports, lying or fabricating any
statements, or manufacturing probable cause” regarding the two officers. It found
“complaints regarding acts of aggressive behavior, racial bias, ethnic bias,
coercive conduct, violation of constitutional rights” irrelevant. At appellant’s
request, this court has reviewed the sealed transcript of the in camera hearing and
find the trial court properly turned over all relevant discoverable evidence. (See
People v. Warrick (2005) 35 Cal.4th 1011, 1024; People v. Mooc (2001) 26
Cal.4th 1216, 1232.)7
6
The middle term for a violation of Vehicle Code section 20001 is five years, and
one-third of that term is 20 months. (See Veh. Code, § 2800.3.)
7
This is so, notwithstanding appellant’s claim the trial court should have turned
over complaints alleging racial bias against the officers.

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II
Appellant contends the trial court erred in imposing multiple punishments
in violation of Penal Code section 654.8
He claims the sentence in count 2 for
evading a police officer with serious bodily injury should be stayed because the
crime occurred as appellant was fleeing the scene of the robbery and was part of
the same conduct which was the basis for the three-year term on count 3, hit and
run causing injury. We agree.
Penal Code section 654 “bars multiple punishment where the convictions
arise out of an indivisible transaction and have a single intent and objective.
[Citations.] Whether a defendant did in fact have multiple objectives is generally
a question of fact for the trial court, and its decision will be upheld on appeal if
supported by substantial evidence. [Citation.]” (People v. Monarrez (1998) 66
Cal.App.4th 710, 713.)
Respondent asserts substantial evidence supports the trial court’s implied
finding that Penal Code section 654 did not apply to counts 2 and 3 because
crimes of violence against multiple victims are separately punishable.
Respondent asserts the victims of the two offenses at issue were different. The
victims of the evasive driving in count 2 were the pursuing police officers and
other motorists who were endangered by appellant’s actions. The victim of
appellant’s leaving the scene of the accident, as alleged in count 3, was the
pedestrian actually injured, Mr. Rivera. Felony evading as defined by the
legislature is not a crime of violence against the police officer, however. (See
People v. Garcia (2003) 107 Cal.App.4th 1159, 1163.)
8
Penal Code section 654 provides in pertinent part, “An act or omission that is
punishable in different ways by different provisions of law shall be punished under the
provision that provides for the longest potential term of imprisonment, but in no case
shall the act or omission be punished under more than one provision.”

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More to the point, appellant was charged and convicted of a violation of
Vehicle Code section 2800.3 in count 2 because in the course of evading the
officers, he caused serious injury to Mr. Rivera. Mr. Rivera was also the named
victim of hit and run with injury in count 3. Thus, the two crimes were not crimes
of violence against separate victims. Based on the foregoing, the sentence in
count 2 must be stayed.
III
Appellant contends in light of Cunningham v. California, supra, 549
U.S.___, the upper term sentence on count three must be vacated and reduced to
the middle term or in the alternative the matter must be remanded for
resentencing.
In Cunningham v. California, supra, 549 U.S. ___, ___ [127 S.Ct. 856], the
United States Supreme Court concluded California’s determinate sentencing law,
authorizing a judge to find the facts permitting an upper term sentence and to
permit the finding based on a preponderance of the evidence, violated the rule of
Apprendi v. New Jersey (2000) 530 U.S. 466, 490 and the Sixth Amendment.9
In light of Cunningham, we conclude that without jury findings made
beyond a reasonable doubt, use of the aggravating factors as stated by the court to
impose the upper term in count 3 violated the Sixth Amendment. (See People v.
Diaz (April 25, 2007, B185735) ___ Cal.Rtpr.3d ___, 2007 W.L. 1203627.) In
sentencing appellant to the upper term, the trial court stated, “in its evaluation of
the aggravating factors and the mitigating factors [it] does feel that the
9
On February 7, 2007, the Supreme Court granted review in five cases to address
the impact of Cunningham. (People v. Sandoval, S148917; People v. Mvuemba,
S149247; People v. French, S148845; People v. Hernandez, S148974; and People v.
Pardo, S148914.)

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aggravating factors outweigh the mitigating factors in several respects. [¶]
Starting with aggravating factors, the overall general nature of the crime, all of
the crimes, certainly show a significant degree of callousness. [¶] There’s no
explanation for this crime, so the logical inference is that he just planned this
thing out. It was a premeditated crime for the money. [¶] He made a decision to
flee the police endangering vulnerable victims, whether they’re driving a car,
whether they’re walking across the street, some lady with a stroller. [¶] The
specific other things include the armed with a fake weapon, the fact that he will
not be sentenced on two other crimes that he was convicted of, the misdemeanor
hit and run’s. [¶] These all equate to aggravating factors that allow a high term
as well as a consecutive sentence.” The court also noted appellant should
consider himself very lucky in that the victim did not die and lucky that he was
not killed by the police during the pursuit or killed by the liquor store employee
during the robbery. Defense counsel pointed out factors in mitigation, that
appellant had “absolutely no record at all[,] had never been arrested before[,]
served with an honorable discharge from the U. S. Army” and had worked
approximately five years as an adult licensed health care worker.
“In order for the trial court to find each of the . . . aggravating factors it
believed to be present, the court necessarily engaged in additional factfinding
beyond the facts found true by the jury. This is exactly the factfinding that failed
constitutional scrutiny in Cunningham: ‘If the jury's verdict alone does not
authorize the sentence, if, instead, the judge must find an additional fact to
impose the longer term, the Sixth Amendment requirement is not satisfied.’
[Citation.]” (People v. Diaz, supra, 2007 W.L. 1203627.) Further, we cannot
conclude the error was harmless beyond a reasonable doubt and must remand the

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matter for resentencing.10
(Cf. People v. Lozano (May 18, 2007, B189649) 2007
W.L. 1453756.)
DISPOSITION
The matter is remanded for resentencing in accordance with the views
expressed herein, and in all other respects the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
SUZUKAWA, J.
We concur:
EPSTEIN, P.J.
WILLHITE, J.
10
Respondent argues any error was harmless in that there is no reasonable doubt
that the jury would have found certain aggravating factors true (appellant’s conduct
exhibited callousness; the victim was vulnerable). We are not persuaded. The facts
respondent relies on are those necessary to prove the elements of the crime and are not
particularly egregious.

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