People v. Bacci
| Decision Date | 17 August 2022 |
| Docket Number | H048478 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. JOSHUA BACCI, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
(Santa Cruz County Super. Ct. No. 19CR00159 &19CR06172)
Convicted of assault with a deadly weapon, carjacking, reckless evasion, and forcibly resisting an officer, Joshua Bacci was sentenced to a total term of 33 years and 8 months in prison. On appeal, Bacci challenges the sufficiency of evidence to support the jury's finding of recklessness required for felony evasion (Veh. Code, § 2800.2) and the trial court's failure to instruct the jury sua sponte on the lesser included misdemeanor (Veh. Code, § 2800.1). Bacci also argues that Penal Code section 654[1] prohibits multiple punishments for his convictions for carjacking (§215, subd. (a)) and assault with a deadly weapon (§245, subd. (a)(1)), as well as his convictions for reckless evasion (Veh. Code, § 2800.2) and forcibly resisting an officer (§ 69). Finally, Bacci argues that remand for resentencing is required because he is entitled to retroactive application of recent legislative changes effectuated by Senate Bill No. 567 (2021-2022 Reg. Sess.) and Assembly Bill Nos. 124(2021-2022 Reg. Sess.) and 518. (2021-2022 Reg. Sess.)
We reverse the judgment and remand the matter for resentencing in light of Senate Bill No. 567, at which time the trial court may reconsider its sentencing choices under current law. We find no merit in Bacci's other claims of error.
A. The Amended Information
On December 18, 2019, the Santa Cruz County District Attorney's Office filed an amended information charging Bacci with carjacking (§ 215, subd. (a); count 1) assault with a deadly weapon with an enhancement for personal infliction of great bodily injury (§§ 245, subd (a)(1), 12022.7, subd. (a); count 2), driving or taking a vehicle without consent (Veh. Code, § 10851, subd. (a); count 3) recklessly evading an officer (Veh. Code, § 2800.2, subd. (a); count 4), and forcibly resisting an officer (§ 69; count 5). The information also alleged that Bacci had served four prior prison terms (§ 667.5) and had three prior strike convictions (§ 667, subds. (b)-(i)) and three prior serious felony convictions (§ 667, subd. (a)(1)).
B. The Trial 1. The Carjacking
In January 2019, C.B. lived in a GMC Vandura, not a "[plain-]Jane van" but a custom van with side rails, pin-striping, captain chairs for the driver and front passenger, and a bed in the back. At the time, C.B. was parking his van at a Burger King, where he received food in exchange for completing various jobs around the store. Bacci, likewise unhoused, lived behind the gas station next to the Burger King. C.B. was acquainted with Bacci: the two "just talked . . .and might have smoked a bowl of weed together or something" and "did meth [together] one time." The two had met about 10 years before in San Quentin State Prison, where they used to be "cellies."
On January 8, 2019, when C.B. stopped at the gas station, Bacci asked him for a ride to a McDonald's. The request seemed odd because the McDonald's was only two blocks away. But C.B. agreed. Bacci went to the bathroom before he went inside C.B.'s van, and C.B. was unable to see what Bacci was doing before he entered the vehicle. Bacci sat down on the bed in the back of the van, "getting high."
As C.B. approached a nearby Safeway store, Bacci directed C.B. to park on Rincon Street, saying he knew someone there. C.B. told Bacci that he was "going to hook up with the chick named Raven who's . . . a hooker." Enraged, Bacci jumped up and punched C.B. in the face, saying that Raven was his girlfriend. Bacci punched C.B. several times and kicked him in the ribs. C.B. stuck his thumb in Bacci's eye to get him to stop, but Bacci started to choke C.B. C.B. tried to open the driver's side door, but it was locked from the outside with a padlock. Meanwhile, Bacci continued to hit, kick, and choke C.B. During the attack, Bacci called C.B. a child molester and a rapist.
C.B. later woke up in the hospital, and he could not recall how he arrived there or how his fight with Bacci ended. He knew that he had been "beat in the head" with something.
The police received several calls about the incident. A pedestrian was walking home from the Safeway when he saw a van parked next to the sidewalk on Rincon Street, facing the direction of Mission Street. The pedestrian could hear some noises coming from inside the van that sounded like a struggle or a fight and someone crying out, and he called the police at 8:39 p.m.
A woman was driving down Mission Street behind a van that evening when the van suddenly stopped in front of her, near Union Street. The van's passenger door opened and a man with blood on his shirt either stepped or fell out. The man stumbled toward the woman's car, asked for help, and eventually collapsed onto the street. The van drove away, eventually turning left onto River Street. The woman drove home and called 911 at 8:53 p.m.
Another woman was driving on Mission Street near Union with her boyfriend when the couple saw a bloodied man in the middle of the street. The girlfriend stopped the car and called 911 at 8:45 p.m., while her boyfriend told the man to move to the sidewalk. The man told the couple that someone stole his van. The man also said that he had been giving someone a ride, and "the person hit him in the head with a brick, and kicked him out of his car [and] stole his van."
Officer Frederick Yoon responded to a report of a possible carjacking and arrived as C.B. was being medically assisted. C.B. was bleeding, and he said that he was hit on the head with a brick and that his car was stolen. C.B. referred to his assailant as "Josh."
Later, Yoon went to the hospital, spoke to C.B., and showed him a photograph of Bacci. C.B. identified Bacci as his assailant. At the hospital, C.B. told Yoon that Bacci was upset with him about Bacci's girlfriend and had struck his head with a brick and punched him multiple times. Eventually, C.B. stuck a finger in Bacci's eye, grabbed the door handle, and "flew out of the car." Bacci then drove off in C.B.'s van.
2. The Pursuit of the Van
Officer Adam Baker, then with the Santa Cruz Police Department, was driving in a patrol car during the evening of January 8, 2019, when he received a report of a possible carjacking. A few minutes later, Baker saw a van that matched the description that he had been given. Baker called for backup and followed the van.
Another Santa Cruz police officer, Jeffrey Brouillette, responded to Baker's update and stopped his patrol car on Market Street "to block other cars and pedestrians from coming that way and establish . . . a safe backdrop." Baker then turned on his lights and sirens to stop the van. Instead of stopping, the van accelerated around Brouillette's car, continuing southbound on Market Street in the northbound lane of traffic. The van drove through a red light at the next intersection without slowing or stopping. The van continued at around 25 miles per hour, crossed four lanes of traffic to collide into the opposite curb line, drove over the curb into a "wooded area" on Water Street where it got stuck in the mud, and then hit a tree while trying to turn around.
The distance from where Baker activated his lights and sirens to where the van eventually crashed was approximately .15 miles, or a little over a block. The van's speed ranged from 8 to 30 miles per hour over that distance.
By now there were three police cars on scene, all with their overhead lights still on but their sirens off to allow officers to "more clearly articulate commands." Brouillette ordered the driver to get out of the car and show his hands. Bacci came out the passenger side of the van and started running. Brouillette gave chase and eventually grabbed Bacci around the waist as Bacci was climbing over a fence. Brouillette told Bacci to stop resisting. Officer Elizabeth Howard-Gibbon tried to help by grabbing the back of Bacci's t-shirt. At one point, Howard-Gibbon saw that Bacci attempted to swing his right elbow at Brouillette. Bacci continued to try to pull himself over the fence. Bacci was "basically fighting" against the officers.
Both Baker and Howard-Gibbon attempted several times to tase Bacci. When one eventually succeeded, Brouillette was able to pull Bacci to the ground. Bacci "turtled up his arms . . . beneath his body" and did not comply with Brouillette's commands to show his hands. A number of officers were eventually able to handcuff Bacci, though Brouillette estimated that it took around 30 seconds to pull Bacci's arms out from underneath him and place him in handcuffs. Another officer at the scene believed he saw dried blood on Bacci's face and blood coming from Bacci's nose.
Inside the van, officers found a brick that was wedged into the lower part of the front driver's seat and the driver's side door. There was a red spot on the brick that Brouillette thought could be blood.
C. The Jury Verdict and Sentencing
The jury found Bacci guilty of all five counts as charged. After a separate court trial, the trial court found true the three allegations of prior strike convictions.
At the sentencing hearing, the trial court struck two of Bacci's prior strikes under section 1385. Subsequently, the trial court sentenced Bacci to a total term of 33 years and 8 months in prison: an aggravated term of nine years for carjacking (§ 215, subd. (a); count 1), doubled to 18 years as a result of the remaining strike conviction; a concurrent aggravated term of four years for assault (§ 245, subd. (a)(1); count 2), likewise doubled to eight years the aggravated term of three years for driving or taking a vehicle...
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