I. BACKGROUND

While on patrol in Hemet one afternoon in September 2018, Detective Matthew

Chavez, who had investigated several dozen stolen car cases, saw a car of a type he knew

was frequently stolen. His partner ran a records check on the license plate, which

confirmed that it had been reported stolen. The officers pulled over the car and told the

driver to put his hands up and outside the window. The driver, later identified as Fuentes,

complied. The officers told Fuentes to open the driver’s side door and exit. Fuentes put

one foot on the ground but then got back into the car and drove off.

The officers pursued Fuentes. Fuentes ran a stop sign, crossed over into oncoming

traffic, and eventually crashed the front of the car into a brick wall. Fuentes then started

running. Chavez, starting on foot about three or four car lengths behind, chased him.

Chavez saw Fuentes reach for something in his waistband, so Chavez shot a taser gun at

him. The taser was ineffective, perhaps because the dart did not penetrate Fuentes’s

clothing, and Fuentes kept running. Chavez caught up and struck Fuentes on the head

with the taser gun out of a concern that Fuentes might arm himself and jeopardize

1 Undesignated statutory references are to the Penal Code.

2 Chavez. Chavez struck Fuentes one more time with his fist, his partner caught up, and

the two arrested Fuentes.

Fuentes was charged with receiving a stolen vehicle (§ 496d, subd. (a); count 1),

wanton disregard while fleeing (Veh. Code, § 2800.2; count 2), resisting a police officer

(§ 148, subd. (a)(1); count 3), and possession of a controlled substance (Health & Saf.

Code, § 11377, subd. (a); count 4). The Information also alleged Fuentes had four prior

felony convictions (former § 667.5, subd. (b)) and a prior strike conviction (§§ 667,

subds. (c), (e)(1), 1170.12, subd. (c)(1)).

Fuentes pled guilty to count 4. A jury found him guilty on counts 2 and 3 and not

guilty on count 1. Fuentes waived his jury right on the prior conviction allegations, and

the trial court found him guilty on the prior strike. The parties agreed the four prior

felony conviction allegations should be dismissed due to a change in the law.

The trial court sentenced Fuentes to four years for count 2 (two years doubled to

four due to the prior strike) and to 180 days each on counts 3 and 4, to run concurrent

with the sentence for count 2. It then awarded Fuentes 1,460 days of presentence custody

and conduct credit and, because the credit meant he had served his full sentence, released

him on parole.

II. DISCUSSION

Fuentes raises five issues: first, that the conviction for resisting a police officer

must be reversed because it is a lesser included offense of wanton disregard while

fleeing; second, that the conviction for wanton disregard while fleeing must be reversed

3 because of an error in the jury instructions; third, that the punishment for resisting a

police officer should be stayed under section 654 because it and the wanton disregard

while fleeing charge arose from an indivisible course of conduct; fourth, that we should

review Fuentes’s motion brought under Pitchess v. Superior Court (1974) 11 Cal.3d 531

(Pitchess); and fifth, that he should have been awarded an additional four days of

presentence custody and conduct credit.

We agree with Fuentes that he should have been awarded an additional four days

of credit. However, we find no error in the convictions on counts 2 and 3, find support

for a determination that section 654 did not apply, and find no abuse of discretion in the

trial court’s denial of the Pitchess motion.

A. Lesser Included Offense

Fuentes contends that count 3, resisting a police officer (§ 148, subd. (a)(1)), is a

lesser included offense of count 2, wanton disregard while fleeing (Veh. Code, § 2800.2,

subd. (a)). We disagree.

“In general, a person may be convicted of, although not punished for, more than

one crime arising out of the same act or course of conduct. ‘In California, a single act or

course of conduct by a defendant can lead to convictions “of any number of the offenses

charged.”’” (People v. Reed (2006) 38 Cal.4th 1224, 1226 (Reed).)

“A judicially created exception to the general rule permitting multiple conviction

‘prohibits multiple convictions based on necessarily included offenses.’ [Citation.] ‘[I]f

a crime cannot be committed without also necessarily committing a lesser offense, the

4 latter is a lesser included offense within the former.’” (Reed, supra, 38 Cal.4th at p.

1227.) The exception exists because “[t]o permit conviction of both the greater and the

lesser offense ‘“‘would be to convict twice of the lesser.”’”’ (People v. Ortega (1998) 19

Cal.4th 686, 705.)

There are two tests to determine whether an offense is a lesser included offense of

another, but Fuentes relies on only the elements test. (Because this case involves

multiple convictions of charged offenses, the other test, known as the “accusatory

pleading test[,] does not apply.” (Reed, supra, 38 Cal.4th at p. 1229.)) “Under the

elements test, if the statutory elements of the greater offense include all of the statutory

elements of the lesser offense, the latter is necessarily included in the former.” (Id. at p.

1227.)

Wanton disregard while fleeing, the supposed greater offense here, is found at

Vehicle Code Section 2800.2 and is defined as a greater offense of evading a police

officer in a vehicle, which is found in Vehicle Code Section 2800.1. Evading a police

officer in a vehicle occurs when a person flees or otherwise eludes an officer’s vehicle, if

the officer’s vehicle “is distinctively marked,” “is sounding a siren as may be reasonably

necessary,” “is operated by a peace officer . . . [who] is wearing a distinctive uniform,”

and “is exhibiting at least one lighted red lamp visible from the front” (and “the person

either sees or reasonably should have seen the lamp”). (Veh. Code, § 2800.1, subd. (a).)

Wanton disregard while fleeing calls for criminal punishment when “a person flees or

attempts to elude a pursuing peace officer in violation of [Vehicle Code] Section 2800.1

5 and the pursued vehicle is driven in a willful or wanton disregard for the safety of persons

or property.” (Veh. Code, § 2800.2, subd. (a).) Damaging property or committing at

least three traffic “point” violations while the driving occurs automatically constitutes

willful or wanton disregard for the safety of persons or property. (Id. at subd. (b).)

The alleged lesser offense here, resisting a police officer, calls for criminal

punishment when a person “willfully resists, delays, or obstructs any public officer . . . in

the discharge or attempt to discharge any duty of his or her office or employment.”

(§ 148, subd. (a)(1).)

“‘[T]he lawfulness of the officer’s conduct is an essential element of the offense’”

of resisting a police officer. (People v. Williams (2018) 26 Cal.App.5th 71, 82, italics

removed.) “‘The rule flows from the premise that because an officer has no duty to take

illegal action, he or she is not engaged in “duties,” for purposes of an offense defined in

such terms, if the officer’s conduct is unlawful.’” (People v. Simons (1996) 42

Cal.App.4th 1100, 1109.)

We conclude resisting a police officer is not a lesser included offense of wanton

disregard while fleeing because it is not the case that “all legal elements of the lesser

offense are also elements of the greater.” (People v. Bailey (2012) 54 Cal.4th 740, 748.)

Resisting a police officer requires that the officer be performing a lawful duty, but

wanton disregard while fleeing does not include that element. It merely requires that the

officer wear a “distinctive uniform” and that her vehicle do certain things, such as be

6 “distinctively marked” and show a “lighted red lamp.” (Veh. Code, § 2800.1, cited in

Veh. Code, § 2800.2, subd. (a).)

Consequently, if an “arrest is unlawful,” the defendant “may not be convicted of

violating . . . section 148” by resisting the officer. (People v. Southard (2021) 62

Cal.App.5th 424, 435; People v. Gerberding (2020) 50 Cal.App.5th Supp. 1, 4 [reversing

section 148 conviction for resisting an unlawful arrest made due to an unreasonable

mistake of law].) Fleeing from an officer seeking an unlawful arrest might not violate

section 148, but it could nevertheless violate Vehicle Code section 2800.2, as to which

the lawfulness of the officer’s actions does not matter. For instance, if a uniformed

officer sought to arrest someone to harass them, rather than due to probable cause of a

criminal violation, the flight from that officer would not constitute resisting an officer,

but it could sustain a conviction for wanton disregard while fleeing.

Likewise, it is possible for an officer to use excessive force (and thus not be

discharging an official duty) while wearing a uniform. (See People v. White (1980) 101

Cal.App.3d 161, 167 [no criminal liability for resisting a police officer if “the arrest was

made with excessive force”].) The use of unlawful excessive force would not provide a

defense to a Vehicle Code section 2800.2 charge. Ultimately, then, one can satisfy all the

elements of a charge of wanton disregard while fleeing without satisfying the lawfulness

element of a charge of resisting a police officer. If a uniformed officer uses excessive

force to arrest an individual, who then enters a vehicle and flees with wanton disregard,

7 that driver would have violated Vehicle Code section 2800.2 by the flight but could not 2 be convicted of resisting the unlawful arrest.

In People v. Simons, supra, 42 Cal.App.4th 1100 (Simons), the Court of Appeal

considered a question similar to ours: whether resisting a police officer was a lesser

included offense of exhibition of a deadly weapon to evade arrest (§ 417.8). (Id. at p.

1105.) Concluding that it was not, the court observed that exhibition of a deadly weapon

to evade arrest does not require “that the officer be engaged in the performance of his or

her duties.” (Id. at p. 1109.) It also noted that “[t]he chief evil to be avoided by

criminalizing exhibition of weapons is the potential for further violence, not only by the

defendant, but also by others in response to the defendant’s action.” (Id. at p. 1109.) By

not requiring an officer to be performing duties as an element of exhibition of a deadly

weapon to evade arrest, Simons stated that “the Legislature has chosen to shift the

controversy over the legality of the arrest from the streets to a civil courtroom. A

defendant may pursue a civil remedy for unlawful arrest, but he may not exhibit a deadly

weapon to avoid that arrest.” (Simons, supra, at p. 1110.) That rationale carries equal

force here.

Fuentes’s arguments that resisting a police officer is a lesser included offense of

wanton disregard while fleeing are unconvincing. He emphasizes, for example, that

2 We acknowledge that someone who commits wanton disregard while fleeing will have also committed resisting a police officer in many cases. However, the elements test does not ask what likely happens when committing an offense. Rather, it asks what must have happened.

8 Vehicle Code section 2800, subdivision (a), an adjacent statute to the one for wanton

disregard while fleeing, makes it a crime to willfully fail to comply with a peace officer’s

lawful order “when that peace officer is in uniform and is performing duties pursuant to

any of the provisions of this code.” However, that just shows that the Legislature knows

how to make lawful performance of a duty a required element of a crime when it wants to

do so. “‘It is a well recognized principle of statutory construction that when the

Legislature has carefully employed a term in one place and has excluded it in another, it

should not be implied where excluded.’” (Brown v. Kelly Broadcasting Co. (1989) 48

Cal.3d 711, 725; see also In re Young (2004) 32 Cal.4th 900, 907 [“‘Where a statute

referring to one subject contains a critical word or phrase, omission of that word or

phrase from a similar statute on the same subject generally shows a different legislative

intent’”]; Simons, supra, 42 Cal.App.4th at p. 1109, fn. 5 [listing several crimes

“concern[ing] violence against or resistance to government officers” requiring “that the

victim officer be engaged in the performance of official duties”].)

Fuentes also observes that Vehicle Code sections 2800, 2800.1, and 2800.2 fall

under Vehicle Code Division 2, Chapter 4, Article 1, which is entitled “Lawful Orders

and Inspections.” (Italics added.) However, “[t]itle or chapter headings are unofficial

and do not alter the explicit scope, meaning, or intent of a statute.” (DaFonte v. Up-

Right, Inc. (1992) 2 Cal.4th 593, 602.) Nothing express in Vehicle Code sections 2800.1

or 2800.2, which together define wanton disregard while fleeing, requires a lawful order.

9 Finally, Fuentes calls our attention to section 417, subdivision (c), which could be

read to suggest that wearing a uniform implies the performance of duties. That provision

punishes “[e]very person who, in the immediate presence of a peace officer, draws or

exhibits any firearm . . . in a rude, angry, or threatening manner, and who knows, or

reasonably should know, by the officer’s uniformed appearance or other action of

identification by the officer, that he or she is a peace officer engaged in the performance

of his or her duties, and that peace officer is engaged in the performance of his or her

duties.” (§ 417, subd. (c), italics added.) According to Fuentes, since uniformed

appearance implies the performance of duties in the context of section 417, the same

implication must apply for wanton disregard while fleeing as well.

What this argument fails to appreciate, however, is that section 417, subdivision

(c), also makes lawful performance of a duty an express requirement. The crime

requires, as stated in the last clause of the quote above, “that the peace officer is engaged

in the performance of his or her duties.” If Fuentes’s argument were correct—that

uniformed appearance automatically implies the performance of duties—then this last

requirement would be surplusage. “As [our Supreme Court has] stressed in the past,

interpretations that render statutory terms meaningless as surplusage are to be avoided.”

(People v. Hudson (2006) 38 Cal.4th 1002, 1010.)

We hold that resisting a police officer is not a lesser included offense of wanton

disregard while fleeing, so the trial court did not err in allowing the jury to convict

Fuentes of both crimes.

10 B. Jury Instructions

Fuentes contends that the jury instructions on wanton disregard while fleeing were

erroneous because the instructions did not include the lawful performance of a duty as an

element of the offense.

This argument is a corollary of, and premised on, his argument that resisting a

police officer is a lesser included offense of wanton disregard while fleeing. Put another

way, if—as Fuentes says— resisting a police officer is a lesser included offense of

wanton disregard while fleeing, then lawful performance of a duty—which is an element

of resisting a police officer—must also be an element of wanton disregard while fleeing,

and the jury should have been told that.

As we have discussed above, however, lawful performance of a duty is not an

element of wanton disregard while fleeing. Vehicle Code section 2800.2 does not

expressly require the lawful performance of a duty and, as we have discussed, there is no

appropriate basis for implying such an element.

Accordingly, Fuentes has not shown that the jury instructions were deficient.

C. Section 654

Fuentes next contends that in sentencing him to concurrent terms on counts 2 and

3, the trial court violated section 654’s prohibition against multiple punishments for the

same course of conduct. Fuentes did not raise this objection in trial court. We find no

error.

11 Under former section 654, which was applicable at the time Fuentes was

sentenced, “[a]n 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, but in no case shall the act or omission be punished under more than one

provision.” (Although the statute has since been revised such that imposition of the

longest potential term is no longer required, that change is not relevant here. Our

analysis focuses on whether section 654 applies in the first instance.)

This restriction applies not only to a single act violating multiple code provisions,

but also to an indivisible “‘course of conduct’” violating several statutes. (People v.

Latimer (1993) 5 Cal.4th 1203, 1207-1209.) Whether a course of conduct is divisible for

purposes of section 654 depends on the intent and objective of the defendant. (Ibid.) If

multiple offenses “‘were incident to one objective, the defendant may be punished for

any one of such offenses but not for more than one.’” (People v. Correa (2012) 54

Cal.4th 331, 336.) Additionally, “a court of conduct divisible in time, although directed

to one objective, may give rise to multiple violations and punishment.” (People v.

Beamon (1973) 8 Cal.3d 625, 639, fn. 11.) And when, as here, a trial court sentences a

defendant on multiple counts, a finding that section 654 does not apply is a “factual

determination that must be sustained on appeal if supported by substantial evidence.”

(People v. Osband (1996) 13 Cal.4th 622, 730.)

Multiple punishments for a single course of flight from an officer could, in some

cases, be prohibited by section 654. We agree, however, with the People that substantial

12 evidence supported the conclusion that Fuentes’s flight by vehicle and flight on foot were

not part of the same course of conduct. Although Fuentes’ goal was to flee the pursuing

officers, his flight on foot after crashing into a wall carried with it a new risk of violence

for Fuentes, the pursuing officers, as well as potential bystanders. As Chavez testified, he

believed Fuentes might have been reaching for something in his waistband during the

foot flight, and thus he struck Fuentes when he caught up to him out of a concern for

personal safety. (See also People v. Hairston (2009) 174 Cal.App.4th 231, 240

[continued flight after encountering successive officers justified multiple punishment due

to the risk of harm each encounter created]; People v. Trotter (1992) 7 Cal.App.4th 363,

368 [multiple punishment justified for successive shots fired because each shot could

have put different people in danger].) Moreover, after crashing the car, there was time

for Fuentes to “reflect and consider his next action.” (Ibid.) Absent a trial court

objection, the People had no reason to offer additional evidence from the officers about

why the flight on foot might warrant different punishment than the flight in a vehicle. On

this record, there was substantial evidence for the trial court’s implied finding that section 3 654 was inapplicable.

3 Although the People have not contended that the issue is moot, we would not be able to give Fuentes any substantive relief even if we agreed with him. His sentence on count 3 was a 180-day term to run concurrent with the four year term on count 2, and he had already served more than 180 days by the time he was sentenced.

13 D. Pitchess Review

Before trial, Fuentes filed a Pitchess motion seeking discovery of the personnel

records of one of the officers who pursued Fuentes. The trial court found that good cause

existed to conduct an in camera review of the officer’s personnel records. During the in

camera proceeding, the trial court swore in the custodian of records and questioned the

custodian about the officer’s personnel file. The trial court reviewed the file, described

the files it had reviewed, and concluded that there were no relevant material records to be

disclosed. Fuentes requests that we review the sealed transcript of the in camera

proceeding to determine if the trial court abused its discretion in concluding that nothing

should be disclosed. The People do not oppose the request.

We have reviewed the sealed transcript of the trial court’s in camera review and

find that the trial court did not abuse its discretion in deciding the Pitchess motion.

E. Presentence Custody and Conduct Credit

“A defendant is entitled to credit for all days in presentence custody including the

day of arrest and the day of sentencing.” (People v. Adams (2018) 28 Cal.App.5th 170,

180.) Fuentes was arrested on September 17, 2018 and was sentenced exactly two years

later on September 17, 2020. The trial court awarded Fuentes 730 days of presentence

custody credit. The parties agree, as do we, that Fuentes should have been awarded 732

days of presentence custody credit instead. The parties also agree, as do we, that Fuentes

should have been awarded 732 days of presentence conduct credit, rather than 730.

(§ 4019.) Because Fuentes was released on parole immediately following the sentencing

14 hearing, the excess credits should be applied to his parole term. (In re Sosa (1980) 102

Cal.App.3d 1002, 1005-1006; § 2900.5, subds. (a), (c).)

III. DISPOSITION

The judgment of conviction is affirmed. The clerk of the superior court is directed

to prepare an amended abstract of judgment to reflect 732 days each of presentence

custody and conduct credit and forward a copy of the amended abstract of judgment to

the Department of Corrections and Rehabilitation.

CERTIFIED FOR PUBLICATION

RAPHAEL

J.

We concur:

RAMIREZ

P. J.

McKINSTER J.

15