P. v. Acosta

Filed 10/2/06 P. v. Acosta CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Placer)

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Defendant Daniel Juan Acosta and fellow gang members accosted a group of people, robbed them, and stole their car. When officers later found defendant in the stolen car, he led them on a high speed chase before being apprehended.

A jury convicted defendant of carjacking (Pen. Code, § 215, subd. (a); unspecified section references that follow are to the Penal Code), five counts of robbery (§ 211), participating in a criminal street gang (§ 186.22), resisting or obstructing a peace officer (§ 148, subd. (a)), vehicle theft (Veh. Code, § 10851, subd. (a)), and evading an officer (Veh. Code, § 2800.2). The trial court found a prior conviction to be true, found defendant had violated probation in another case, and sentenced defendant to an aggregate prison term of 34 years 4 months.

On appeal, defendant contends that the trial court (1) erred in giving a pinpoint instruction on carjacking, (2) mistakenly believed it could consider only those mitigating factors expressly delineated in the California Rules of Court, and (3) violated principles enunciated in Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakeley) when imposing sentence. We reject defendant’s first and third claims, but conclude, as do the People, that the court erred in restricting its consideration of mitigating factors. We therefore remand for resentencing.

Facts and Proceedings

Given the issues raised in this appeal, we provide an abbreviated version of the facts.

A group of five friends spent part of an evening in a Roseville park and then congregated a few feet away from one of their cars before leaving the area. Defendant and three fellow gang members approached them, robbed them, and took the car. When officers later spotted the car, defendant led them on a chase at speeds between 110 and 120 miles per hour. Defendant crashed the car, and the occupants scattered. Defendant ran into a backyard and was arrested after he fell into a swimming pool.

Discussion

I

Pinpoint Instruction on Carjacking

In accordance with CALJIC No. 9.46, the trial court instructed the jury that “[e]very person who takes a motor vehicle in the possession of another, from his or her person or immediate presence, against his or her will and with the intent to either permanently or temporarily deprive the person in possession of the vehicle of his or her possession, accomplished by means of force or fear, is guilty of the crime of carjacking. . . .”

This instruction continued: “’Immediate presence’ means an area within the alleged victim’s reach, observation or control, so that he or she could, if not overcome by violence or prevented by fear, retain possession of the subject property.” At the prosecution’s request, the court added the following sentence: “It is not necessary that the victim be inside the vehicle or touching the vehicle at the time of the taking.” (See People v. Hoard (2002) 103 Cal.App.4th 599, 608-609.)

On appeal, defendant challenges this addition. He characterizes this sentence as an improper pinpoint instruction because the modification “served to shift the burden of proof and interfered with the jury’s fact-finding function.” Defendant asserts that “[e]ven though the jury in this case could have validly determined that the [car] had not been taken from the immediate presence of [the victim], since she was outside the [car] and had no physical connection to it, the prosecution’s modification to CALJIC No. 9.46 directed it not to do so.” According to defendant, this instruction “told the jury that whatever inference they chose to draw from the evidence of [the victim’s] position outside the [car], that the jury should still convict of the carjacking.”

The modified instruction did no such thing. It merely clarified that the “immediate presence“ requirement for the crime of carjacking does not mean that the victim must be inside the vehicle. It is not the location of the victim that determines whether a carjacking has occurred. That is, whether an alleged victim is inside or outside a car, a jury must find that the vehicle was taken from the victim’s immediate presence, i.e., from “an area within the alleged victim’s reach, observation or control, so that he or she could, if not overcome by violence or prevented by fear, retain possession of the subject property.” (CALJIC No. 9.46.)

Unlike improper pinpoint instructions, nothing in the language of this modified instruction directed the jury to reach a particular conclusion, nor did it otherwise reduce the prosecution’s burden of proof. (See People v. Carter (1993) 19 Cal.App.4th 1236, 1252-1253; People v. Wright (1988) 45 Cal.3d 1126, 1135, 1137.) Defendant’s challenge to this instruction is meritless.

II

Mitigating Factors

Defendant contends, and the People concede, that the court misunderstood its role in evaluating mitigating factors. We agree.

The trial court began the sentencing hearing by noting that it had reviewed the probation report and its recommendation of an upper term. The court commented: “I had a, I’d say, a negative response to that recommendation because primarily of the defendant’s age and what I would consider the lack of sophistication of the offense. Okay. That was my response to it. My mental response. Then I went further and I looked for some supporting--legal foundation for my gut feeling to the Rules of Court. And what I considered to be mitigating factors are not mitigating factors under the Rules of Court. So that’s not appropriate consideration as to mitigation as far as I can see.” After reviewing the aggravating factors, the court said, “I am left now with what I may properly consider as being only factors in aggravation, and they are significant, and that would call for the upper term.”

Defense counsel argued that the mitigating factors itemized in the Rules of Court were not exhaustive. He also urged the court to impose middle term and concurrent sentences, for a total of 15 years 8 months.

The court responded: “Getting back to my original concerns about the aggravating or mitigating factors, or the fact of lack of mitigating factors, I do feel an obligation to carry out at least the intent of the Legislature [sic] and not create mitigating factors when by law they do not exist. I think it is a very slippery slope if the Court starts deciding what it thinks are mitigating factors in an attempt to lower a sentence that is pretty well spelled out by the Legislature.” Concluding there were significant aggravating factors but no cognizable mitigating factors, the court imposed the upper term and ordered sentences to run consecutively, for an aggregate prison term of 34 years 4 months.

Rule 4.423 of the California Rules of Court provides that circumstances in mitigation “include” its list of enumerated factors. But these factors are not exhaustive. Rule 4.408(a) specifically provides: “The enumeration in these rules of some criteria for the making of discretionary sentencing decisions does not prohibit the application of additional criteria reasonably related to the decision being made. Any such additional criteria shall be stated on the record by the sentencing judge.” In other words, the factors listed in rule 4.423 are illustrative, not exclusive. (People v. Whitten (1994) 22 Cal.App.4th 1761, 1765-1766; People v. Covino (1980) 100 Cal.App.3d 660, 671.)

The trial court erred in believing it was precluded from considering defendant’s age or the relative lack of sophistication as mitigating factors, and the court’s comments demonstrate that this misunderstanding affected the ultimate sentencing decision. As the People concede, the matter must therefore be remanded for resentencing. (See People v. Holguin (1989) 213 Cal.App.3d 1308, 1319.)

III

Blakely Error

Defendant contends that the trial court erred in imposing aggravated and consecutive terms based upon facts not submitted to the jury and proved beyond a reasonable doubt, thereby violating the principles enunciated in Blakely, supra, 542. U.S. 296 [159 L.Ed.2d 403]. But as defendant recognizes, the California Supreme Court rejected the identical claim in People v. Black (2005) 35 Cal.4th 1238, and we are bound by that decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

Disposition

Defendant’s convictions are affirmed, and the matter is remanded to the trial court for resentencing.

HULL , J.

We concur:

DAVIS , Acting P.J.

RAYE , J.

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