P. v. Hughes

Filed 7/2/07 P. v. Hughes CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kings County. Peter M. Schultz, Judge.

Catherine White, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Louis M. Vasquez and Kelly C. Fincher, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant Kunya Kinte Hughes stands convicted, following a jury trial, of receiving a stolen motor vehicle (Pen. Code,^[1] 496d, subd. (a); count 2) and receiving stolen property ( 496, subd. (a); count 3), both felonies, and resisting arrest ( 148, subd. (a)(1); count 4) and possession of a burglary tool ( 466; count 5), both misdemeanors.^[2] He admitted having suffered a prior conviction under the Three Strikes Law ( 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), having served a prior prison term ( 667.5, subd. (b)), and having previously been convicted of vehicle theft ( 666.5). Sentenced to a total unstayed term of seven years in prison plus 288 days in jail, he now appeals, claiming the evidence was insufficient to sustain the conviction on count 5 and imposition of the upper term on count 2 violated his constitutional rights. For the reasons that follow, we will affirm.

FACTS

I

PROSECUTION EVIDENCE

At approximately 2:19 a.m. on October 12, 2005, Officer Vallin of the Hanford Police Department was on patrol when he observed a silver-colored Buick. As he could not read the month that the vehicle registration expired, he ran a registration check on the license plate and learned the car had been reported stolen out of Fresno.

Vallin continued to follow the vehicle, which contained four people who appeared to be African-American males, and radioed for assistance. When he subsequently activated his overhead lights to initiate a vehicle stop, however, the car sped up and a pursuit ensued. Ultimately, the vehicle came to rest on a dirt embankment and its occupants fled. The driver ran north through an empty dirt field, in the direction of Hanford-Armona Road and the Kings Terrace Apartments, while the passengers ran south through the field. Vallin pursued the driver, but lost sight of him and went back to secure the stolen vehicle and set up a perimeter.

Sergeant Sever assisted with setting up the perimeter. From his position just west of the Kings Terrace Apartments, he saw an African-American male pacing back and forth at the back of the apartment building, where he was out of view of people. Sever advised Officers Boyd and Donner of the mans location. A couple of minutes later, Boyd and Donner detained appellant on the south side of the Kings Terrace Apartments, approximately 80 to 100 yards from the stolen vehicle. It was very early in the morning, and no one else was in the area. Appellant was talking on a cell phone. His demeanor was calm. Donner located a screwdriver sticking out of his back pocket. A pat search revealed a spark plug in his right front pocket and a Nokia cellular telephone in his left front pocket.

Vallin contacted appellant at the apartments approximately 10 to 15 minutes after everyone jumped out of the stolen car. Appellant did not seem to be out of breath. The cars driver had been wearing a shirt. Although appellant was not, he had fresh dust or dirt on his stomach and his shorts. Officers did not find a shirt in the vicinity, but were unable to go into some of the backyards to check. Vallin subsequently found items that could be considered burglary tools inside the vehicle.

The Nokia cellular phone seized from appellant was turned over to Vallin, who used the call log to call the number labeled Home. He reached Virginia Alvarez in Fresno. The phone was hers. It had been stolen from out of her car, which had been at her residence in Fresno, on the night of October 10 or early morning of October 11, 2005. She discovered the theft the morning of October 11, when she went to open the car door and saw that the lock had been broken and the glove compartments appeared to have been rummaged through.

Meanwhile, Sever detained Lakendra Jackson and Andresha Bennett, who both lived in Fresno. The two women were on foot and dirty, as if they had just run through a field. They initially ignored Severs attempts to contact them, but one ultimately admitted she had come from the stolen vehicle. Jackson identified appellant to police as the driver of the car, and Bennett related that appellant had admitted the car was stolen.^[3] At trial, both women identified appellant as the driver.

After everyone was taken into custody, Sever attempted to turn off the cars engine, but was unable to do so because the steering column had been smashed. The passenger door lock was also broken. There were no keys near the vehicle, which had been stolen the day before from Mike Wallens residence in Fresno.^[4] Wallen had all of the keys in his possession and did not give anyone permission to drive the car.

II

DEFENSE EVIDENCE

According to appellant, his girlfriend, Nicole Morris, drove him to Hanford on the night in question. No one else was with them, and Morris was driving a rented Dodge Neon. While they were looking for the residence of appellants cousin, they had an argument and appellant got out of the car. As Morris sped off, appellants shirt caught in the door and was torn off of him. This happened by a field down the street from the apartments at which he was detained. When Morris did not return for appellant, he tried to use his cell phone, but the battery went dead. He thought to knock on some apartment doors to see if anyone would let him use the telephone or give him a ride back to Fresno, but he found Alvarezs phone in a planter box. The police arrived while he was attempting to use it.

Appellant denied knowing Lakendra Jackson or Andresha Bennett, or being in the same vehicle with them. He denied giving Vallin a slightly different explanation for his presence in Hanford than he gave at trial.^[5] He admitted having a screwdriver in his pants on the night in question; when asked why at trial, he responded, Just I couldnt tell you. I dont know.

DISCUSSION

I

SUFFICIENCY OF THE EVIDENCE

Appellant contends the evidence was insufficient to sustain his conviction for possession of a burglary tool in violation of section 466. That statute provides in pertinent part: Every person having upon him or her in his or her possession a screwdriver, with intent feloniously to break or enter into any vehicle is guilty of a misdemeanor. Proof of possession alone is not enough; as appellants jurors were instructed, such possession must be accompanied by the specific intent feloniously to break or enter a vehicle. (See People v. Valenzuela (2001) 92 Cal.App.4th 768, 777; cf. People v. Fannin (2001) 91 Cal.App.4th 1399, 1404; Cook v. Superior Court (1970) 4 Cal.App.3d 822, 829.) Appellant says the evidence failed to establish he had the requisite intent.

The applicable legal principles are settled. The test of sufficiency of the evidence is whether, reviewing the whole record in the light most favorable to the judgment below, substantial evidence is disclosed such that a reasonable trier of fact could find the essential elements of the crime beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578; accord, Jackson v. Virginia (1979) 443 U.S. 307, 319.) Substantial evidence is that evidence which is reasonable, credible, and of solid value. (People v.Johnson, supra, at p. 578.) An appellate court must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (People v. Reilly (1970) 3 Cal.3d 421, 425.) An appellate court must not reweigh the evidence (People v. Culver (1973) 10 Cal.3d 542, 548), reappraise the credibility of the witnesses, or resolve factual conflicts, as these are functions reserved for the trier of fact (In re Frederick G. (1979) 96 Cal.App.3d 353, 367). Where the circumstances support the trier of facts finding of guilt, an appellate court cannot reverse merely because it believes the evidence is reasonably reconciled with the defendants innocence. [Citations.] (People v. Meza (1995) 38 Cal.App.4th 1741, 1747.) This standard of review is applicable regardless of whether the prosecution relies primarily on direct or on circumstantial evidence. (People v. Lenart (2004) 32 Cal.4th 1107, 1125.)

[T]he element of intent is rarely susceptible of direct proof and must usually be inferred from all the facts and circumstances disclosed by the evidence. [Citations.] (People v. Falck (1997) 52 Cal.App.4th 287, 299; accord, People v. Carter (2005) 36 Cal.4th 1114, 1157.) Where the evidence justifies a reasonable inference of felonious intent, we are not at liberty to disturb the verdict. (People v. Holt (1997) 15 Cal.4th 619, 670.)

When the evidence adduced at trial is viewed in accord with the applicable legal principles, it reasonably can be inferred that appellant was in possession of a cell phone obtained by physically breaking into a vehicle, a vehicle entered by breaking a door lock, and a tool that could be used to make such entries. The stolen items were acquired close in time and location to each other, and close in time to appellants possession of them and the tool. Appellant had no explanation for his admitted possession of the screwdriver. (See People v. Fannin, supra, 91 Cal.App.4th at p. 1404.) The jurys deadlock on the car theft charge notwithstanding, jurors reasonably could have concluded appellant had used the screwdriver to break into the Alvarez and/or Wallen vehicle, and that he possessed it with the requisite intent.^[6] The fact the prosecutor, in argument to the jury, focused on use of the screwdriver to start the car is immaterial; jurors were properly instructed on the elements of the offense and were not bound by the prosecutors theory. (See People v. Cox (2003) 30 Cal.4th 916, 956; People v. Manson (1976) 61 Cal.App.3d 102, 207.)

II

IMPOSITION OF UPPER TERM

The probation officers report (RPO) recommended imposition of the upper term on count 2, based on the existence of several factors in aggravation and none in mitigation. The RPO revealed that appellant, age 28 at the time he committed the present offenses, had previously suffered three felony and one misdemeanor convictions as an adult, and had several felony and misdemeanor adjudications as a juvenile, dating back to the age of 14.

At sentencing, defense counsel requested imposition of the middle term on count 2. She acknowledged appellants extensive criminal record, but argued he was being punished for that record by imposition of a doubled term under the three strikes law and the prior prison term enhancement. The trial court imposed the upper term, stating: I believe that the aggravating circumstances of Mr. Hughes numerous prior convictions and juvenile adjudications and his prior unsatisfactory performance on probation and parole far outweigh the mitigating circumstances which are present. [] Mr. Hughes prior record is particularly significant where it contains three prior three separate juvenile adjudications for vehicle theft and prior adult conviction for vehicle theft, another a separate adult conviction for carjacking, and this crime is possessing a stolen vehicle. It appears that this is part of a pattern of quite regular conduct by Mr. Hughes.

Relying on Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and, inferentially, Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), appellant now contends the trial court violated his Sixth Amendment right to trial by jury by imposing the upper term based on factors not admitted by appellant or found by the jury to be true beyond a reasonable doubt.

Prior to appellants sentencing, the California Supreme Court undertook an extensive analysis of these cases (and United States v. Booker (2005) 543 U.S. 220) and concluded that imposition of an upper term sentence, as provided under California law, was constitutional. (People v. Black (2005) 35 Cal.4th 1238, 1244, 1254, 1261 (Black).)^[7] Recently, however, the United States Supreme Court overruled Black in part and held that Californias determinate sentencing law violates Apprendis bright-line rule: Except for a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. [Citation.] (Cunningham v. California (2007) 549 U.S. ___, ___ [127 S.Ct. 856, 868] (Cunningham).) The middle term prescribed under California law, not the upper term, is the relevant statutory maximum. (Ibid.)

In the present case, however, the RPO revealed that appellant had suffered multiple prior convictions and juvenile adjudications, and appellant not only did not challenge the accuracy of this account, but admitted allegations involving several of the prior convictions. The trial court expressly found appellants record to be particularly significant, and all of the factors it relied on presupposed one or more prior convictions. Thus, when the court relied on the various factors in aggravation, it necessarily was also relying on the fact of appellants prior convictions. Multiplicity of prior convictions is so closely related to the prior convictions themselves that it comes within the exception for such convictions contained within Blakely and Apprendi. Indeed, appellants case presents a classic example of the recidivism exception. (See Apprendi, supra, 530 U.S. at p. 488; Almendarez-Torres v. United States (1998) 523 U.S. 224, 230, 243, 244.) Thus, the upper term was supported by factors that, under those cases, need not be found by a jury beyond a reasonable doubt. (See Blakely, supra, 542 U.S. at p. 301; Apprendi, supra, 530 U.S. at p. 490.) It follows that reliance on those factors was not erroneous under Cunningham (see Cunningham, supra, 549 U.S. at p. ___ [127 S.Ct. at p. 868]) and, hence, that imposition of the upper term was constitutionally permissible.

In light of the foregoing, we need not determine whether the trial court properly referred to appellants prior unsatisfactory performance on probation and parole or that the current offenses were part of a pattern of regular conduct. Under the circumstances of this case, assuming consideration of such factors was error, it was harmless beyond a reasonable doubt under Chapman v. California (1967) 386 U.S. 18, 24; furthermore, there was no abuse of discretion under People v. Watson (1956) 46 Cal.2d 818, 836. A single factor in aggravation suffices to support imposition of the upper term (People v. Osband (1996) 13 Cal.4th 622, 730); in light of the trial courts comments at sentencing, appellants extensive criminal record, and the lack of any apparent mitigation, the record amply establishes that the trial court would have imposed the upper term even if factors arguably not strictly related to appellants prior convictions had been excluded from consideration.^[8]

DISPOSITION

The judgment is affirmed.

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^* Before Ardaiz, P.J., Harris, J. and Gomes, J.

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

^[2] The jury deadlocked on count 1, a charge of vehicle theft (Veh. Code,  10851, subd. (a)).

^[3] Bennett denied saying this to police.

^[4] The street number of Wallens residence was 4747. Alvarezs residence was number 4751 on the same street.

^[5] According to Vallin, appellant said he had come to Hanford with his girlfriend to visit her cousin, whose name he did not know. Appellant did not give Vallin the girlfriends name so that Vallin could contact her and verify appellants statement.

^[6]Cook v. Superior Court, supra, 4 Cal.App.3d 822, upon which appellant relies, is distinguishable. That case, a pre-Proposition 115 decision, did not purport to establish the nature or minimum quantum of evidence necessary to sustain a charge under section 466, but instead held that the evidence presented therein was insufficient to uphold a grand jury indictment because it consisted of nothing but hearsay. (Cook, at p. 829.)

^[7] In light of Black, any objection by appellant at sentencing based on Blakely, Apprendi, or the United States Constitution almost certainly would have been futile. Accordingly, we reject respondents claim appellant waived the issue by failing to object. (See People v. Chavez (1980) 26 Cal.3d 334, 350, fn. 5.)

^[8] Given the number of appellants prior convictions and adjudications, imposition of the upper term did not violate the proscription against dual use of facts contained in California Rules of Court, rule 4.420(c).