P. v. Allen

Filed 6/22/06 P. v. Allen CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Frederick Maguire, Judge. Affirmed as modified.

James Dina Allen was convicted of robbery, carjacking, two counts of burglary, false imprisonment and grand theft. It was found true he had suffered three prior serious felony convictions within the meaning of Penal Code^[1] section 667, subdivision (a)(1), and four "strike" priors within the meaning of section 667, subdivisions (b) through (i). Allen was sentenced to a term of 43 years, 4 months. He appeals, arguing the evidence was insufficient to support his carjacking conviction, in any case he should not have been sentenced for that offense, there was insufficient evidence to support the finding he suffered three prior serious felony convictions, and he is entitled to additional presentence conduct credits.

FACTS

On the afternoon of May 19, 2004, Mark Davis returned to his apartment and found appellant in his bedroom. Appellant told Davis he had a knife, ordered him to the floor and then blindfolded and gagged him. After rummaging through the apartment, appellant emptied Davis's pockets and took his car keys. Appellant asked Davis what his car looked like and where was it parked. Davis described his car and told him it was parked on the street across from his apartment building. After appellant departed, Davis untied himself. He found property missing from his apartment and discovered his car was no longer where he parked it.

One of the items taken from Davis was his ATM card. Appellant used that card to take money from an ATM machine located at an Arco gas station.

DISCUSSION

A. Carjacking

Appellant argues the evidence was insufficient to support his conviction for carjacking.

Appellant notes an element of carjacking is that a motor vehicle be taken from the victim's "person or immediate presence." (§ 215, subd. (a).) He further notes here the victim's car was parked across the street from his apartment. It was necessary after he parked for the victim to cross the street, unlock a gate and walk upstairs to his apartment. The victim gave a "rough" estimate it took approximately one minute to walk from his car to his apartment. Appellant argues given the distance from the victim's car to his apartment, the car was not in his immediate presence when appellant took his car keys and, therefore, the evidence was insufficient to convict him of carjacking.

1. Law

a. Sufficiency of Evidence

In determining whether the evidence is sufficient to support the verdict, we review the entire record viewing the evidence in the light most favorable to the judgment and presuming in support of the verdict the existence of every fact the jury could reasonably deduce from the evidence. The issue is whether the record so viewed discloses evidence that is reasonable, credible and of solid value such that a rational trier of fact could find the elements of the crime beyond a reasonable doubt. (People v. Carter (2005) 36 Cal.4th 1114, 1156.)

b. Carjacking

"'Carjacking' is the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence, or from the person or immediate presence of a passenger of the motor vehicle, against his or her will and with the intent to either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession, accomplished by means of force or fear." (§ 215, subd. (a).)

The victim need not be physically present in the vehicle to satisfy the "immediate presence" requirement of the statute. (People v. Medina (1995) 39 Cal.App.4th 643, 650.) In Medina the victim's car keys were taken from him while he was in a motel room and his car was in the parking lot. (Id. at pp. 646-647.) The court reasoned the terms "from the person" or "from the immediate presence" express an expansive view of presence that does not require actual physical possession. (Id. at p. 650.) What is required is the vehicle "be within one's reach or control such that possession could be retained if the victim was not overcome by fear." (Ibid.)

In People v Hoard (2002) 103 Cal.App.4th 599 the defendant took the victim's car keys from her after he tied her up inside a store. He then drove off in her car, which was in the store parking lot. (Id. at p. 602.) The court held the elements of carjacking were established when the defendant took possession and control of the victim's car by threatening her and demanding her car keys. Even though the victim was not physically present in the parking lot when the defendant drove the car away, she was forced to relinquish her keys, and could otherwise have retained possession and control of the keys and the car. (Id. at p. 609.)

Federal courts applying a carjacking statute similar to California's utilize the same expansive view of presence. (See e.g., U.S. Savarese (1st Cir. 2004) 385 F.3d 15, 19-20, and cases cited.)

2. Analysis

While there is certainly some proximity element to the presence requirement of section 215, it is a broad one. The facts in the present case are essentially indistinguishable from those in Hoard. Here the victim's car keys were taken from him in his apartment. His car was taken from the street in front of his apartment. The victim's car was within his "reach or control such that possession could be retained if the victim was not overcome by fear." (See People v. Medina, supra, 39 Cal.App.4th at p. 650.) The evidence was sufficient to convict appellant of carjacking.

B. Double Conviction/Double Punishment

Appellant makes two arguments related to sentencing on his carjacking conviction. First, citing case authority dealing with situations in which the defendant was convicted of grand theft of an automobile and robbery arising from the same course of conduct (see, e.g., People v. Irvin (1991) 230 Cal.App.3d 180, 184-186), he argues carjacking is a lesser included offense of robbery and, therefore, conviction of both under the facts of this case was unlawful. In the alternative, he argues even if conviction of both was lawful, pursuant to section 654, the sentence on carjacking was improper because it and the robbery conviction arose from the same indivisible transaction.

1. Background

Appellant was convicted of robbery, carjacking, residential burglary, false imprisonment by violence, etc., burglary (Arco gas station) and grand theft. Appellant was sentenced, pursuant to the "three strikes" law, to a term of 27 years to life on the carjacking conviction. The court imposed a consecutive term of 16 months on the burglary at the Arco gas station. The court imposed sentences on the robbery, residential burglary, false imprisonment and grand theft counts but stayed those sentences pursuant to section 654.

2. Analysis

a. Double Conviction

A defendant may not be convicted of both a greater and lesser included offense arising from the same course of conduct. (People v. Irvin, supra, 230 Cal.App.4th at p. 184.) Appellant argues carjacking is a lesser included offense of robbery and conviction of both offenses was unlawful. Appellant is mistaken.

In People v. Ortega (1998) 19 Cal.4th 686 our Supreme Court considered whether a defendant could be convicted of both robbery and carjacking based upon the same conduct. It stated: "In enacting the carjacking statute (§ 215), the Legislature made clear its intention to permit multiple convictions of carjacking and robbery based upon the same conduct. As the Court of Appeal observed in the present case, subdivision (c) of section 215 states: 'This section shall not be construed to supersede or affect Section 211 [robbery]. A person may be charged with a violation of this section and Section 211. However, no defendant may be punished under this section and Section 211 for the same act which constitutes a violation of both this section and Section 211.' The Court of Appeal concluded that subdivision (c) specifically permits convicting a defendant of both carjacking and robbery based upon the same conduct. We agree.

"Although subdivision (c) of section 215 does not explicitly address whether a defendant may be convicted of both carjacking and robbery based upon the same conduct (only that he or she may be charged with both offenses), it does state that no defendant may be punished for both carjacking and robbery based upon the same conduct. There would be no need for the Legislature to preclude multiple punishment for carjacking and robbery unless a defendant could be convicted of both carjacking and robbery based upon the same conduct. Subdivision (c) of section 215, therefore, constitutes an expression of legislative intent permitting multiple convictions of carjacking and robbery based upon the same conduct. [Citations.] " (Id. at p. 700.)

b. Double Punishment

We confess confusion concerning appellant's double punishment argument. Appellant states the carjacking was "part and parcel" of the robbery, the car keys taken from Davis were used outside the apartment to take his car. Appellant states even the imposition of a concurrent term for the carjacking conviction would contravene the double punishment prohibition contained in section 654.

As noted, appellant was sentenced on the carjacking conviction to 27 years to life pursuant to the three strikes law. A 25 years to life term was imposed pursuant to the three strikes law on the robbery conviction. The sentence on the robbery conviction was stayed pursuant to section 654. The trial court properly imposed sentences on both convictions and stayed the term on the robbery count. (See People v. Snow (2003) 105 Cal.App.4th 271, 283.) We see no error.

C. Section 667 Enhancements

It was found true appellant had suffered three section 667, subdivision (a)(1), prior serious felony convictions. Based on that finding, 15 years was added to his sentence. Appellant notes an element of a 667, subdivision (a)(1), enhancement is that each charged prior conviction was "brought and tried separately." He argues the evidence was insufficient to prove the charged prior convictions alleged here were so brought and so tried.

1. Background

Three prior serious felony convictions were alleged in the information, a residential burglary conviction on January 12, 1993, in case No. CR136502, two residential burglary convictions on January 25, 1993, brought and tried together in case No. CR135508, and a federal conviction on December 17, 1997, for bank robbery in case No. 96CR02205-K.

a. 96CR02205-K

In a complaint filed in federal court on November 5, 1996, appellant was charged with bank robbery. On December 17, 1997, appellant pled guilty to the charge.

b. CR135508

In an information dated November 30, 1992, appellant was charged with three counts of residential burglary. On January 25, 1993, he entered a plea of guilty to two of the residential burglary charges which allegedly were committed on September 24, 1992, and October 22, 1992. The change of plea form stated the plea agreement as "Plea to cts 1 + 3 together with 1 ct on [CR136502]; stipulated 6 yrs 8 mo."

c. CR136502

In a complaint dated December 30, 1992, appellant was charged with one count of burglary committed on September 4, 1992. The complaint alleged a single burglary occurring on September 4, 1992. On January 12, 1993, appellant entered a plea of guilty to that charge.

d. Sentencing in CR135508 and CR136502

At the end of the change of plea hearing in case No. CR135508, the court noted appellant had a right to be sentenced within 20 days of the date of his plea in case No. CR136502. The court asked appellant if he wished to give up that right so case Nos. CR135508 and CR136502 could be sentenced at the same time. Appellant waived time.

On February 24, 1993, appellant was sentenced to a term of four years in case No. CR136502 and to a consecutive term of two years, eight months in case No. CR135508.

The trial court in the present case based on case Nos. 96CR02205-K, CR135508 and CR136502 found true the allegation appellant suffered three serious prior convictions within the meaning of section 667, subdivision (a)(1). The trial court specifically found case Nos. CR135508 and CR136502 were brought and tried separately.

2. Law

In a series of cases, the courts have explored the meaning of the phrase "brought and tried separately" in the context of section 667.

In In re Harris (1989) 49 Cal.3d 131 the defendant was charged with two prior convictions within the meaning of section 667. The priors were based on two robbery convictions. Those robberies were first charged in a single complaint but were later charged in separate informations and separate guilty pleas were entered as to each. (Id. at pp. 133-134.)

The court concluded the phrase "brought and tried separately" meant the proceeding had to be "'totally separate, not only during the proceedings before trial but also as to those leading to the ultimate adjudication of guilt.'" (In re Harris, supra, 49 Cal.3d at p. 135.) The court noted there was no difference between an adjudication of guilty based on a plea of guilty and one arising from a trial. (Id. at pp. 135-136.) The court stated: "[T]he underlying proceedings must have been formally distinct, from filing to adjudication of guilt." (Id. at p. 136.)

The court concluded because both robbery priors were initiated in the same complaint, the underlying proceedings were not formally distinct and only one enhancement under section 667 could be imposed. (In re Harris, supra, 49 Cal.3d at pp. 136-137.)

In People v. Wiley (1995) 9 Cal.4th 580 the court, applying Harris, considered whether the evidence in Wiley was sufficient to prove the alleged section 667 priors were brought and tried separately. In Wiley the evidence showed the priors were prosecuted under separate informations but there was no direct evidence concerning whether both arose from a single complaint. (Id. at p. 592.)

The court concluded the prosecution was not required to produce the complaints in order to prove the charges were brought separately. The court noted the two informations were filed in the same county, the trials were conducted only days apart and the defendant was sentenced as to both cases during the same court session. The court further noted, however, the two informations bore significantly different case numbers (Nos. 27767 and 27902). The court stated it was reasonable for the trier of fact to infer the charges were initiated in separate complaints. Were this not the case it would be expected the informations would have successive or nearly successive numbers. In the absence of evidence to the contrary, it was reasonable to conclude the two alleged priors arose from separate complaints and, thus, were "brought" separately. (Id. at pp. 593-594.)

In a series of cases, the Courts of Appeal have given further definition to the meaning of the phrase "brought and tried separately" in the context of section 667, subdivision (a)(1). The law arising from those cases is accurately summarized in 5 Erwin et al., California Criminal Defense Practice, section 91.81[1][b], page 91-307: '''Brought and tried' separately means that the prior convictions must have been had in proceedings that were formally distinct, from filing to adjudication of guilt. Charges are 'brought and tried separately' within the meaning of the statute even if the defendant pleaded guilty to each and was sentenced for each at the same time, so long as the charges were separately filed and not consolidated. Thus, for example, if the defendant pleaded guilty to two charges at the same time pursuant to a package-deal plea bargain when those charges arose from two separate, unconsolidated cases, each conviction may constitute a separate prior." (Fns. omitted; see People v. Wagner (1994) 21 Cal.App.4th 729, 733-737; People v. Smith (1992) 7 Cal.App.4th 1184, 1189-1193; People v. Gonzales (1990) 220 Cal.App.3d 134, 138-144; People v. Thomas (1990) 219 Cal.App.3d 134, 145-147.)

The courts have concluded no "defacto consolidation" occurs simply because cases arising from separate complaints are temporally related or are treated together for purposes of judicial economy, e.g., pleas taken at the same time or joint plea bargains. (People v. Wagner, supra, 21 Cal.App.4th at pp. 735, 737; People v. Smith, supra, 7 Cal.App.4th at pp. 1191-1193; People v. Gonzales, supra, 220 Cal.App.3d at pp. 139-140.)

3. Discussion

a. The Charges Were Brought Separately

The evidence was sufficient to find the alleged priors in case Nos. CR135508 and CR136502 were brought separately. While the prosecutor offered the complaint in CR136502 but only the information in CR135508, it is reasonable to conclude the cases were separately brought. First, as was the case in Wiley, the informations in the two cases bear significantly different numbers, a fact that allows the inference the cases arose from separate complaints. More importantly, the prosecutor offered the complaint in CR136502, which was dated December 30, 1992. That complaint did not included the offenses that appear in the information in CR135508.

b. The Charges Were Tried Separately

The evidence was sufficient to find the alleged priors in case Nos. CR135508 and CR136502 were tried separately. There is no doubt the two cases share a temporal affinity. While that fact is not wholly irrelevant, it is not controlling. As noted, the nature of our criminal justice system often results in separate, nonconsolidated cases paralleling each other in time from filing to resolution. It is also not uncommon such cases will be resolved by joint plea bargains. That act of common sense and economy, useful to both parties, does not work a de facto consolidation such that the cases cease to be separate prosecutions.

In this case it is reasonable to conclude both priors arose from separate complaints. The case proceeded under separate informations and the pleas in both were entered separately. While both cases were sentenced by the same judge at the same time, they were always dealt with as separate entities, e.g., the trial court took a time waiver in CR136502 so sentencing could occur in both cases at the same time. The evidence was sufficient to conclude the section 667 prior arising from case Nos. CR135508 and CR136502 were separately tried.

D. Conduct Credits

Appellant argues and respondent concedes the trial court erred in denying him 28 days of presentence custody credits pursuant to section 2933.1. We agree. (People v. Thomas (1999) 21 Cal.4th 1122, 1127-1129.)

The abstract of judgment is ordered corrected to reflect an additional 28 days of presentence conduct credits. In all other respects the judgment is affirmed.

BENKE, Acting P. J.

WE CONCUR:

O'ROURKE, J.

IRION, J.

Publication courtesy of California free legal advice.

Analysis and review provided by Carlsbad Apartment Manager Attorneys.

^[1] All further statutory references are to the Penal Code unless otherwise sepcified.