P. v. Adams
Filed 7/12/07 P. v. Adams CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, Plaintiff and Respondent, v. LAMEL ADAMS, Defendant and Appellant. | C053686 (Super. Ct. No. 06F00548) |
A jury convicted defendant Lamel Adams of carjacking (Pen. Code, 215, subd. (a) -- count one), attempted second degree robbery (Pen. Code, 211, 212.5, subd. (c), 664 -- count two), evading a peace officer with willful disregard for safety (Veh. Code, 2800.2, subd. (a) -- count three), and possession of a firearm by a convicted felon (Pen. Code, 12021, subd. (a)(1) -- count four). The jury found that defendant personally used a firearm (Pen. Code, 12022.53, subd. (b)) in the commission of counts one and two. In a bifurcated proceeding, the jury found that defendant had suffered four prior serious felony convictions in September 1993 and a fifth such conviction in March 1990. He was sentenced to state prison for 54 years to life, consisting of 29 years (the upper term of nine years, plus 10 years for firearm use, plus 10 years for the separately tried serious felony convictions) to life on count one ( 667, subd. (e)(2)(A)(iii)) plus 25 years to life on count three; concurrent terms of 25 years to life plus a 10-year firearm enhancement on count two and 25 years to life on count four were imposed.
On appeal, defendant contends (1) his attempted robbery conviction must be reversed because the trial court failed to give the jury a unanimity instruction, (2) his evading a peace officer conviction must be reversed because of instructional error regarding the element that the officers car be distinctively marked, (3) his $180 court security fee must be reduced to $80 (the Attorney General concedes this point), and (4) the upper term component of his third strike sentence for carjacking is unconstitutional under Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely) and Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham). We shall modify the judgment as to the court security fee and in all other respects affirm.
FACTS
On January 12, 2006, Francisco Reynoso borrowed a white 1995 Buick from a car dealership while it repaired his own car. Two days later, Reynoso drove the Buick to a grocery store. As he turned off the engine and opened the door, a thin black male about five feet six inches tall appeared, holding a black revolver in his right hand and a backpack in his left hand. The man demanded Reynosos money and wallet. Reynoso, who was still facing forward and had not seen the gun, said, Fuck no. When the man next demanded Reynosos keys, Reynoso turned and saw the man holding the gun. Reynoso handed him the keys and got out of the car.
The man got into the car and drove northbound on Stockton Boulevard. Reynoso entered the grocery store and had someone call the police.
Three days later, Sacramento County Sheriffs Deputy Mark Limbird was traveling southbound on 44th Street in a marked patrol car with his canine partner. Limbird saw a white Buick approaching from the opposite direction at a speed that appeared to exceed the posted limit. Limbird made a U-turn and followed the Buick. He intended to run a registration check as part of his routine practice. However, the Buick ran a red light when it turned onto Fruitridge Road. At that point, Limbird decided to pursue the Buick.
The Buick traveled at about 80 miles per hour on Fruitridge Road and ran red lights at the intersections of Del Norte Boulevard and Martin Luther King Boulevard. The Buick then turned northbound onto Highway 99 and accelerated to about 100 miles per hour. As they approached the 12th Avenue exit, Deputy Limbird activated the red and blue lights, including a red forward-facing lamp, as well as the siren on his patrol car. The Buick took the 12th Avenue exit, ran a red light at the intersection, and proceeded back onto northbound Highway 99. Limbird continued the pursuit with his siren activated. The Buick sped through the junction with Highways 50 and Business 80 at speeds exceeding 100 miles per hour. Several other sheriffs department vehicles and a Sacramento Police Department helicopter became involved in the pursuit.
While on Business 80, Deputy Limbird gained enough ground to be able to read the Buicks license plate. The dispatcher advised him that the Buick had been stolen in a carjacking and that the suspect was a black male armed with a black revolver. The Buick left the freeway at Arden Way, proceeded on surface streets at approximately 80 miles per hour, and reentered the freeway in the opposite direction. The Buick traveled at about 100 miles per hour, turned eastbound onto Highway 50, and exited at 34th Street. It proceeded through a residential area at 50 to 75 miles per hour, ignoring stop signs and red lights. The Buick was finally stopped by tack strips laid over the roadway by officers on Broadway just west of 42nd Street. The car swerved, crashed into the gate of a church, and stopped. Limbird and other officers approached the Buick and broke out the drivers side window. Limbirds dog entered through the broken window and bit defendant on the left forearm. As Deputy Kelly Bunn searched defendant, a black revolver fell from his waistband; Bunn found ammunition in defendants pocket.
A few hours later, Deputy Limbird showed victim Reynoso a photographic lineup. Reynoso selected defendants picture from a set of six photographs. A couple of weeks later, Reynoso identified photographs depicting the backpack defendant had during the carjacking. At trial, Reynoso identified defendant as the assailant. Reynoso was sure that defendant was the person who had carjacked him.
DISCUSSION
I
Defendant contends his count two attempted robbery conviction must be reversed because the trial court failed to give, sua sponte, a unanimity instruction, CALCRIM No. 3500.[1] He claims some of the jurors could have based the attempted robbery conviction on the demand for the wallet while others could have based it on the actual completion of the carjacking. We disagree.
It is fundamental that a criminal conviction requires a unanimous jury verdict [citations]. [Citation.] What is required is that the jurors unanimously agree defendant is criminally responsible for one discrete criminal event. [Citation.] [W]hen the accusatory pleading charges a single criminal act and the evidence shows more than one such unlawful act, either the prosecution must select the specific act relied upon to prove the charge or the jury must be instructed in the words of CALJIC No. 17.01 or 4.71.5 or their equivalent that it must unanimously agree beyond a reasonable doubt that defendant committed the same specific criminal act. [Citation.] (People v. Thompson (1995) 36 Cal.App.4th 843, 850 (Thompson); see People v. Russo (2001) 25 Cal.4th 1124, 1132.)
A prosecutor may make the requisite selection of a specific act during his opening summation to the jury. (People v. Diaz (1987) 195 Cal.App.3d 1375, 1382-1383 (Diaz).) Here, the prosecutor told the jury: Count Two is an attempted robbery. Attempted robbery is broken down into five elements as well. Very similar but distinct from the carjacking elements. [] . . . [] [T]he facts in this case are essentially this. Francisco Reynoso is sitting in his car and he hears somebody say, Give me your wallet. He hasnt seen anything go on yet. He hasnt seen a gun. But [defendant], who is standing at the car with a backpack and the gun, is attempting at that point, unsuccessfully albeit, is attempting to commit a robbery at that point. [] The fact that the victim says F-no and doesnt want to give it to him and ultimately doesnt give it to him, doesnt change the fact that [defendant] is attempting to commit a robbery at that point.
The prosecutor never suggested that he was relying upon any other specific act to prove the charge of attempted robbery. Thus, at the time the case was submitted to the jury, the trial court had no duty to instruct the jurors with CALCRIM No. 3500. (Thompson, supra, 36 Cal.App.4th at p. 850; Diaz, supra, 195 Cal.App.3d at pp. 1382-1383.)
Defendant claims the duty arose during deliberations, as a result of questions asked by the jurors. The jurors asked: (a) When does attempted robbery end? [] (b) When does the carjacking start? [] (c) Can attempted robbery and carjacking occur simultaneously? The trial court answered that when an attempted robbery ends is largely factual, depending upon the timing of the interruption; that the precise beginning of a carjacking is largely factual; and that carjacking and attempted robbery can be accomplished in the same act, simultaneously.[2]
Defendant claims that even if the prosecutor elected to rely on the initial demand and refusal, the trial courts comment that carjacking and attempted robbery can be accomplished in the same act might have caused some jurors to rely on only post-Fuck no conduct for the attempted robbery conviction, and might have caused other jurors to believe the entire car-taking incident constituted the attempted robbery. Thus, he reasons that CALCRIM No. 3500 should have been given along with the answer to the jury questions.
The Attorney General responds that any erroneous failure to give a unanimity instruction is harmless, because disagreement among the jurors concerning the different specific acts proved is not reasonably possible. (People v. Napoles (2002) 104 Cal.App.4th 108, 119 (Napoles).) In his view, it is impossible to imagine that a juror would have believed Reynosos testimony that [defendant] demanded his wallet and money but somehow find that [defendant] did not then immediately demand the keys to the Buick, which he was driving a few days later; the reverse is equally impossible to imagine.
Defendant replies that the harmless error argument fails because, under a proper unanimity instruction, the jury very well could have found the alleged attempted robbery was simply part of the carjacking and that only one offense, a carjacking, had taken place. But in order to do so, the jury would have had to disbelieve Reynoso as to the original demand for his money and wallet (a completed attempted robbery), and then somehow believe him as to the immediately ensuing demand for the car keys. On this record, that scenario is utterly implausible. Any error in the omission of CALCRIM No. 3500 was harmless beyond a reasonable doubt. (Napoles, supra, 104 Cal.App.4th at p. 119; People v. Deletto (1983) 147 Cal.App.3d 458, 470-473.)
II
Defendant contends his count three conviction of evading a pursuing police officer (Veh. Code, 2800.2, subd. (a))[3] must be reversed because of instructional error regarding the requirement that the officers car be distinctively marked. We disagree.
The jury was instructed with a modified version of CALCRIM No. 2181 (Jan. 2006 ed.), which provided, in relevant part:
The defendant is charged in Count Three with evading a peace officer with wanton disregard for safety of persons or property, vehicle code 2800.2. [] To prove that the defendant is guilty of this crime, the People must prove that: [] Number one, a peace officer driving a motor vehicle was pursuing the defendant; [] Two, the defendant, who was also driving a motor vehicle, willfully fled from, or tried to elude the officer, intending to evade the officer; [] Number three, during the pursuit the defendant drove with willful or wanton disregard for the safety of persons or property; and [] Number four, all of the following were true: [] (A) There was at least one lighted red lamp visible from the front of the peace officers vehicle; [] (B), The defendant either saw or reasonably should have seen the lamp; [] (C), The peace officers vehicle was sounding a siren as reasonably necessary; [] (D), The peace officers vehicle was distinctively marked; and [] (E), The peace officer was wearing a distinctive uniform. [] . . . [] A law enforcement vehicle is distinctively marked if it has a red lamp and siren. The vehicles appearance must be such that a person would know, or reasonably should know, that it is a law enforcement vehicle. (Italics added.)
At the time of defendants trial, the bench notes to CALCRIM No. 2181 noted there was a split of authority as to whether a law enforcement vehicle needed something more than a red lamp and siren in order to be distinctively marked. (Judicial Council of Cal., Criminal Jury Instructions (Jan. 2006 ed.) vol. 2, p. 158.) The split was resolved in People v. Hudson (2006) 38 Cal.4th 1002 (Hudson), decided the month after defendants trial. Hudson explained: In common parlance, the phrase distinctively marked, when used to describe a police car, could include such distinguishing features as a red light or a siren. [Citations.] Sections 2800.1, 2800.2, and 2800.3, however, require markings in addition to the presence of a red light and a siren, because, as we explained earlier, section 2800.1 expressly requires the peace officers vehicle to have a red light (subd. (a)(1)), a siren (subd. (a)(2)), and to be distinctively marked (subd. (a)(3)). In the statutory context at issue, therefore, the statutory phrase distinctively marked does carry a particular legal meaning that differs from its nonlegal meaning, in that it requires that the vehicle have a physical feature in addition to a red light and siren, thus requiring the trial court to instruct the jury, without the necessity of a request by either party, to clarify the meaning of the statutory term distinctively marked. [Citations.] (Hudson, supra, 38 Cal.4th at pp. 1012-1013.)
On the issue of prejudice, Hudson explained: The statutory requirement that the pursuing peace officers vehicle be distinctively marked is an element of the offense of evading a pursuing peace officers vehicle. [Citations.] In deciding whether a trial courts misinstruction on an element of an offense is prejudicial to the defendant, we ask whether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. [Citation.] To say that an error did not contribute to the verdict is . . . to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record. [Citation.] (Hudson, supra, 38 Cal.4th at p. 1013.)
In Hudson, the officer described the pursuing vehicle as not a marked vehicle but a plain car with forward-facing interior red light and a blue amber blinking light in the back. (Hudson, supra, 38 Cal.4th at p. 1006.) The pursuing vehicle (1) exhibited a lighted red lamp; (2) sounded a siren; (3) had a blue amber blinking light in the back; and (4) was a Crown Victoria, the same model used for black-and-white police cars. (Fn. omitted.) (Id. at p. 1010, quoting the Court of Appeal opinion.) Hudson concluded: The instructional error prejudiced defendant because the jury could have found that the police vehicle here was not distinctively marked. The model of the car does not qualify as a distinctive mark because even if, as Officer Buesa testified, black-and-white police cars commonly are Ford Crown Victorias, there was no evidence at trial that this model was used exclusively by the police and not by other motorists. The blue amber lights might be a distinctive mark, but under the circumstances a jury could have determined that this feature was not reasonably visible to other drivers. (Id. at p. 1014.)
Here, in contrast, Deputy Limbird testified that his car was solid white with the word sheriff on both sides of the car, starting at the front quarter panel and extending past the rear doors. The word Sacramento was painted above or below the word sheriff. There was a star on the front lower portion of the drivers door. On the rear quarter panel below the trunk was the word K-9 in black and gold lettering. The word K-9 also appeared in red lettering on both sides of the rear window. The words stay away appeared above the rear door. The word sheriff was written clearly across the rear deck of the trunk. On top of the car was a light bar with red and blue lenses. The light bar was capable of operating in three stages. The first stage caused two rear lights to flash red and blue like a strobe light. The second stage illuminated a forward-facing steady red light and a blue light that operated like a strobe. The third stage caused all the lights to rotate and flash. During the pursuit, Limbird activated all [his] red and blue lights, necessarily including the forward facing blue light that would have been visible to a driver being pursued. (Cf. Hudson, supra, 38 Cal.4th at pp. 1010, 1014 [blue amber light in the back may not have been reasonably visible to other drivers].) The car also had a push bumper with a siren on the front bumper.
Defendant counters that [n]o photograph of the police car was introduced as evidence, and that Deputy Limbird did not say that the markings were clearly visible at night. But in denying defendants new trial motion based on Hudson, the trial court noted that the nighttime incident had been videotaped. The video, viewed by the jury, showed that Limbirds car and numerous other law enforcement cars were all clearly marked with decals on their doors that are visible in the videotape.
Moreover, unlike the Hudson instruction that invited the jury to resolve the distinctively marked issue by considering circumstances other than the physical features of the pursuing police vehicle (Hudson, supra, 38 Cal.4th at pp. 1007, 1012), here the modified instruction advised that The vehicles appearance must be such that a person would know, or reasonably should know, that it is a law enforcement vehicle. (Italics added.) Because the instruction focused the jurys attention on the vehicles appearance, and the record reveals that the jury considered abundant additional evidence that the vehicle was distinctively marked, the error was surely unimportant to the verdict on count three. (Id. at p. 1013.)
III
Defendant contends, and the Attorney General concedes, his $180.00 court security fee must be modified to $80.00. We accept the Attorney Generals concession.
Penal Code section 1465.8, subdivision (a)(1) provides: To ensure and maintain adequate funding for court security, a fee of twenty dollars ($20) shall be imposed on every conviction for a criminal offense, including a traffic offense, except parking offenses as defined in subdivision (i) of Section 1463, involving a violation of a section of the Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code.
In this case, the trial court stated: An additional court security surcharge fee is ordered under 1465.8(a)(1) of the Penal Code for each conviction of the defendant. Im going to make that times three, or $180.00.
The parties agree that defendant is liable for a $20 fee for each of his four convictions, or $80 total. We shall modify the judgment accordingly.
IV
Defendant contends his upper term sentence is unconstitutional under Blakely, supra, 542 U.S. 296 and Cunningham, supra, 166 L.Ed.2d 856. We disagree.
In selecting the upper term of nine years, the trial court stated: The high term has been ordered in view of the fact that the defendant has served prior prison terms under [California Rules of Court,] rule 4.421(b)(3).
Applying the Sixth Amendment to the United States Constitution, the United States Supreme Court held in Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi) that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be tried to a jury and proved beyond a reasonable doubt. (Id. at p. 490.) For this purpose, the statutory maximum is the maximum sentence that a court could impose based solely on facts reflected by a jurys verdict or admitted by the defendant. Thus, when a sentencing courts authority to impose an enhanced sentence depends upon additional fact findings, there is a right to a jury trial and proof beyond a reasonable doubt on the additional facts. (Blakely, supra, 542 U.S. at pp. 303-305.)
Accordingly, in Cunningham, supra, 166 L.Ed.2d 856, the United States Supreme Court held that by assign[ing] to the trial judge, not to the jury, authority to find the facts that expose a defendant to an elevated upper term sentence, Californias determinate sentencing law violates a defendants right to trial by jury safeguarded by the Sixth and Fourteenth Amendments. (Cunningham, at p. 864, overruling on this point in People v. Black (2005) 35 Cal.4th 1238, vacated in Black v. California (Feb. 20, 2007) ___ U.S. ___ [167 L.Ed.2d 36].)
As we have pointed out, an exception to this rule is that the trial court may increase the penalty for a crime based upon the defendants prior convictions, without having this aggravating factor submitted to the jury and proved beyond a reasonable doubt. (Apprendi, supra, 530 U.S. at p. 490.) That is what occurred in this case. The court cited defendants service of prior prison terms as the exclusive basis for imposing the upper term. One valid aggravating factor is sufficient to expose defendant to the upper term. (People v. Cruz (1995) 38 Cal.App.4th 427, 433.)
DISPOSITION
The judgment is modified to impose an $80 court security fee pursuant to Penal Code section 1465.8, subdivision (a)(1). As so modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and to forward a certified copy of said abstract to the Department of Corrections and Rehabilitation.
RAYE , J.
We concur:
DAVIS , Acting P.J.
MORRISON , J.
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[1] CALCRIM No. 3500 provides: The defendant is charged with _______
[2] The trial court answered the jurys questions as follows: (a) When does attempted robbery end? [] Precisely when the attempted robbery ends is largely factual, depending on the case. [] The end of an attempted robbery may come sooner or later. It may come sooner if the step towards committing robbery is interrupted early, or it may come later if the interruption is later. [] Please re-read the instructions related to attempted robbery -- [citations]. I instruct you to reread these in the jury room to best understand the courts answer to this particular question. [] As you can see from these instructions, the end of attempted robbery can come even after an actual robbery has concluded. The instruction [citation] states: The defendant may be guilty of attempt even if you conclude that robbery was actually completed. [] (b) When does the carjacking start? [] Like the previous answer, the precise beginning of a carjacking is largely factual. The carjacking instruction [citation] should be reread in the jury room to best understand the courts answer. [] As reflected in the instruction, there are 5 elements to the crime of carjacking. In addition to the 5 elements, please note all of the various explanations in [the instruction] about the defendants intent, movement of the vehicle, the lack of free consent, possession, fear, and other matters. Consider all of these matters in your determination of when the carjacking starts. [] Taken together with the facts, the instructions should help you decide the starting point of a carjacking, if you find that it occurred. [] (c) Can attempted robbery and carjacking occur simultaneously? [] Yes. Carjacking and attempted robbery can be accomplished in the same act, simultaneously. The last line of attempt [citation] provides that the defendant may be guilty of attempt even if you conclude that robbery was actually completed. Each count of the Information charges a distinct crime [citation].
[3] Vehicle Code section 2800.1, subdivision (a) provides: Any person who, while operating a motor vehicle and with the intent to evade, willfully flees or otherwise attempts to elude a pursuing peace officers 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 officers 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 officers motor vehicle is sounding a siren as may be reasonably necessary. [] (3) The peace officers motor vehicle is distinctively marked. [] (4) The peace officers motor vehicle is operated by a peace officer, as defined in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2 of the Penal Code, and that peace officer is wearing a distinctive uniform. Vehicle Code section 2800.2, subdivision (a) punishes the acts specified in Vehicle Code section 2800.1 where the pursued vehicle is driven in a willful or wanton disregard for the safety of persons or property.
