P. v. Luna

Filed 10/15/07 P. v. Luna CA4/1

Opinfion following rehearing

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Robert W. Armstrong, Judge. (Retired judge of the Los Angeles Super. Ct. assigned by the Chief Justice pursuant to art. VI,  6 of the Cal. Const.) Affirmed.

William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson and Dane R. Gillette, Chief Assistant Attorneys General, Gary W. Schons, Senior Assistant Attorney General, Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, Kristen Kinnaird Chenelia and David Delgado-Rucci, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant appeals his convictions for two counts of unlawfully taking a vehicle (Veh. Code, 10851, subd. (a); counts 3 & 9); four counts of receiving stolen property (Pen. Code, 496, subd. (a), 496d, subd. (a); counts 4, 10, 14 & 15); five counts of vehicle burglary (Pen. Code, 459; counts 5, 8 & 11-13); assault on a peace officer (Pen. Code, 240; count 1); resisting arrest by attempting to remove a firearm (Pen. Code, 148, subd. (d)(1); count 2); obstructing or resisting peace officers (Pen. Code, 69; count 7); possession of methamphetamine (Health & Saf. Code, 11377, subd. (a); count 6); and possession of marijuana (Health & Saf. Code, 11357, subd. (b); count 16). He contends that he was prejudiced because the trial court failed to appropriately instruct the jury on the use of circumstantial evidence (CALJIC No. 2.01) and that the trial court violated Penal Code section 654^[1]by not staying execution of sentence on the assault conviction (count 1).

Defendant also claims the trial court imposed the upper term on his conviction for resisting arrest (count 2) based on factors not found true by a jury in violation of the Supreme Courts decision in Blakely v. Washington (2004) 542 U.S. 296. In a prior opinion, we reversed the trial courts imposition of the upper term sentence on count 2 and remanded the matter for resentencing in light of the Supreme Courts recent decision in Cunningham v. California (2007) ___ U.S. ___ [127 S.Ct. 856, 864] (Cunningham). However, we then granted a petition for rehearing^[2]and accepted supplemental briefing by the parties to consider additional arguments by the People based on Cunningham. Essentially, the People contend we should uphold the aggravated sentence previously imposed by the trial court because a recidivism exception enunciated by the Supreme Court in Cunningham applies under the facts and circumstances of this case. Alternatively, the People contend we should uphold the aggravated sentence previously imposed because any error was harmless beyond a reasonable doubt, so the trial court would have imposed the same sentence if it had been aware of the Cunningham decision at the time of sentencing.

FACTUAL AND PROCEDURAL HISTORY

A. Gold Nissan Altima Related Offenses (Counts 9-15)

Evidence at trial connected defendant to the theft of a gold Nissan Altima. The gold Nissan Altima was reported stolen in November 2004 from the owners driveway in Corona. On December 10, 2004, at approximately 5:00 a.m., uniformed police officers were canvassing an area in Riverside based on a report of a vehicle burglary. While canvassing, the officers approached the gold Nissan Altima because their suspicions were raised by the drivers seat being reclined and by the fogged windows, indicating someone was inside. The officers told the occupant to get out of the car, but he failed to comply and instead raised the seat and fully accelerated away from the scene. One of the police officers identified defendant as the driver. The officers chased after the gold Nissan Altima and found it a short distance away, but defendant was able to escape on foot. The owner later identified the vehicle in a salvage yard. The license plates were no longer on the car and a number of personal items left inside were missing.

Items found by police inside the gold Nissan Altima were identified as having been taken from three vehicles recently burglarized in the same general area of Riverside: a green Honda Prelude, a light blue Nissan Altima, and a white Mitsubishi Diamante. Stolen license plates were also found inside the gold Nissan Altima. Police determined these stolen license plates had been taken from a taupe Nissan Altima. When police examined the taupe Nissan Altima, they discovered another set of stolen plates which had been taken from a nearby white Nissan. An investigator testified car thieves have been known to change license plates among similar vehicles to delay detection by police.

B. Blue Honda Accord Related Offenses (Counts 3-5 & 8)

Evidence at trial also connected defendant to the theft of a second vehicle, a blue Honda Accord, which was taken on December 19, 2004, while parked in front of the owners residence in Corona. On December 22, 2004, a police officer dispatched in Riverside to a vehicle theft in progress attempted to detain defendant after he realized he fit the description given to him by the dispatcher and after being told by witnesses he was the one responsible for breaking into a nearby vehicle, a white Toyota Corolla. When the officer caught up with defendant, he was standing next to a vehicle with the engine running. The vehicle was the stolen blue Honda Accord. Defendant was holding onto some items but dropped them and fled. A chase ensued and defendant was eventually apprehended and arrested.

When the officer returned to the blue Honda Accord, where defendant had been standing when the pursuit began, he discovered the ignition was damaged, and there was a lot of property inside the car. The owner of the nearby white Toyota Corolla that had been burglarized indicated the items defendant dropped on the ground near the blue Honda Accord had been inside his vehicle. Items found inside the blue Honda Accord were identified as having been taken from a silver Honda Civic, which had been burglarized in Riverside on December 21, 2004.

C. All Other Offenses (Counts 1, 2, 6, 7 & 16)

All of the remaining convictions arose from the pursuit and arrest of defendant after he ran from the officer who found him standing near the blue Honda Accord. The officer chased defendant on foot, repeatedly telling him to stop. When defendant failed to stop, the officer called for backup. During the pursuit, the officer saw defendant tossing some items from his pocket, including some tools and a blade which could have been used as a weapon. A struggle ensued when the officer caught up with defendant while he was attempting to climb a fence. During the struggle, defendant tugged at the officers holster and was able to move the retention bail, which keeps his gun in the holster, from a locked to an open position. However, the officer was able to relock the retention bail and to get defendant to release his grip on the gun. Defendant could not be handcuffed until three or four other officers arrived at the scene to assist. One of the officers found a large folding knife where the struggle had taken place, and another officer recalled seeing the knife fall to the ground while police were lifting defendant over a fence after he was handcuffed. Police searched defendant following his arrest and found methamphetamine and marijuana on his person.

DISCUSSION

A. Circumstantial Evidence Instruction (CALJIC No. 2.01)

The parties agree the prosecutions case was based largely on circumstantial evidence, so the trial court should have instructed the jury with CALJIC No. 2.01. The trial court agreed the instruction was appropriate but did not read it to the jury. Defendant claims the trial court had a sua sponte duty to give the instruction, and its failure to do so prejudiced his defense. Because the prosecutions case against him as to the theft of the blue Honda Accord, and most of the other theft-related offenses (counts 3, 4, 8 & 10-15), was based on circumstantial evidence, defendant believes the jury could have reasonably interpreted the evidence to infer either guilt or innocence. As a result, defendant contends it is probable the jury would have acquitted him on these offenses if the instruction had been given. Although we agree with defendants contention the prosecutions case against him on these counts was based on circumstantial evidence, we disagree with defendants claim the jury could have interpreted the evidence to infer either guilt or innocence. We also disagree with the argument CALJIC No. 2.01 was necessary under the facts and circumstances of this case.

The elements necessary to establish a violation of section 10851 of the Vehicle Code are the defendants driving or taking of a vehicle belonging to another person, without the owners consent, and with specific intent to permanently or temporarily deprive the owner of title or possession. (People v. Windham (1987) 194 Cal.App.3d 1580, 1590.) The prosecution may prove a vehicle theft by direct or circumstantial evidence. (People v. Clifton (1985) 171 Cal.App.3d 195, 199-201.) Mere possession of a stolen car under suspicious circumstances is sufficient to sustain a conviction of unlawful taking. Possession of recently stolen property is so incriminating that to warrant a conviction of unlawful taking there need only be, in addition to possession, slight corroboration in the form of statements or conduct of the defendant tending to show his guilt. (Id. at pp. 199-200.) The specific intent to deprive the owner of possession of his car may be inferred from all the facts and circumstances of the particular case. [Citations.] [Citation.] (People v. Windham, supra, at p. 1590, quoting In re Robert V. (1982) 132 Cal.App.3d 815, 821.)

Auto burglary is defined as entry into a locked vehicle without the owners consent and with intent to commit grand or petty theft or any felony. ( 459; In re James B. (2003) 109 Cal.App.4th 862, 868.) The People can use circumstantial evidence to prove that a defendant participated in a burglary. (In re Anthony M. (1981) 116 Cal.App.3d 491, 500.) Prosecution witnesses do not need to actually see the defendant break and enter into [a vehicle]. (Id. at p. 501.) An unexplained flight is evidence of participation in a burglary. (Ibid.)

The offense of receiving stolen property is a specific intent crime. (People v. Reyes (1997) 52 Cal.App.4th 975, 985.) Proof of the crime of receiving stolen property requires establishing that the property in question was stolen, that the defendant was in possession of it, and that the defendant knew the property to be stolen. (People v. Anderson (1989) 210 Cal.App.3d 414, 420.) The knowledge element of receiving stolen property is normally proved not by direct evidence but by an inference from circumstantial evidence. (People v. Alvarado (1982) 133 Cal.App.3d 1003, 1019.) In routine circumstances, the knowledge element is inferred from the defendants failure to explain how he came to possess a stolen item or his offer of an unsatisfactory explanation or from suspicious circumstances attendant upon his possession of the item. (Id. at pp. 1019-1020.) When possession has been established, corroboration on the issue of knowledge need only be slight and may be furnished by conduct of the defendant tending to show his guilt. (In re Richard T. (1978) 79 Cal.App.3d 382, 388.)

CALJIC No. 2.01 must be given sua sponte when the prosecution substantially relies on circumstantial evidence to prove guilt. . . . (People v. Rogers (2006) 39 Cal.4th 826, 885.) When circumstantial evidence is merely incidental to or corroborative of direct evidence, reliance is not substantial enough to justify the instruction. (People v. Brown (2003) 31 Cal.4th 518, 564.) In pertinent part, this instruction essentially advises the jury that a finding of guilt may not be based on circumstantial evidence unless the proved circumstances are consistent with guilt and cannot be reconciled with any other rational conclusion. (People v. Heishman (1988) 45 Cal.3d 147, 166-167.) The instruction is unnecessary where the circumstantial evidence relied upon is not equally consistent with a reasonable conclusion of innocence . . . . (Id. at p. 167.) For example, the defendant in Heishman was charged with murdering a witness who was scheduled to testify against him in a rape case, but the trial courts failure to give the instruction was not erroneous because all of the evidence, although circumstantial, pointed to defendants guilt. (Id. at pp. 156-162, 166-167.)

Defendant does not dispute CALJIC No. 2.01 was unnecessary as to the theft of the gold Nissan Altima (counts 9 & 10) and the burglary of the white Toyota Corolla (count 5). While circumstantial evidence also supported these charges, the prosecution relied heavily on direct, eyewitness testimony. A police officers testimony placed defendant in the drivers seat of the gold Nissan Altima after it was reported stolen. The same police officer testified defendant sped away in the gold Nissan Altima even though he had been told by police to get out of the car. With respect to the burglary of the white Toyota Corolla, the police officer who was dispatched while the burglary was in progress testified he pursued defendant because he matched a dispatchers description of the suspect and because eyewitnesses at the scene also pointed to him as the burglar. In addition, the police officer saw defendant drop items which were later identified as having been taken from the burglarized white Toyota Corolla. The strength of the eyewitness testimony on these offenses also served as circumstantial evidence supporting the remaining theft-related offenses because they connected defendant to all of the stolen items. Although no eyewitnesses actually saw defendant steal the blue Honda Accord, break into any of the burglarized vehicles, or take any of the stolen items from the vehicles, the jury could reasonably infer he was the one responsible for these offenses based on all of the surrounding facts and circumstances. From all of the surrounding facts and circumstances, the jury could also reasonably infer defendant took all of the stolen items with the required mental state.

All of the circumstantial evidence presented on the theft of the blue Honda Accord and the other theft-related offenses (counts 3, 4, 8 & 10-15) is very strong and points only to defendants guilt. None of the facts or surrounding circumstances suggests defendant could be innocent of any of these offenses. Defendant cites no theory pointing to his innocence, and we can discern none from the evidence in the record. In other words, there is nothing from which we could conclude the evidence was equally consistent with a rational conclusion of innocence. As a result, we conclude the trial courts failure to give an instruction on the use of circumstantial evidence (CALJIC No. 2.01) was not erroneous.

B. Section 654

Defendant was convicted of a simple assault under section 240, as a lesser included offense of count 1, assault with a firearm upon a peace officer under section 245, subdivision (d)(1), and count 2, attempting to take or remove a peace officers firearm by unfastening the holster strap in violation of section 148, subdivision (d)(1). The trial court imposed a sentence of three years on count 2 and a concurrent sentence of 90 days on count 1. Defendant contends his attempt to take the officers firearm served as the evidentiary basis for both convictions. He claims a stay is appropriate under section 654 because both convictions arose from a single act which was committed for a single purpose and criminal objective -- to avoid being arrested. Pointing to defense counsels argument during trial that defendants act of taking a fighting stance to punch the officer constituted simple assault, the People contend the jury could have convicted defendant on counts 1 and 2 based on two distinct acts. However, the People do not oppose a stay as to count 1, because defendant would have committed both acts with the same objective of avoiding arrest.

Section 240 defines assault as an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another. Section 245, subdivision (d)(1) is violated when a defendant commits an assault on a peace officer with a firearm when the officer is engaged in the performance of his duties. Section 148, subdivision (d)(1) prohibits resisting arrest by intentionally removing or attempting to remove a firearm from a peace officer by unfastening the officers holster strap.

Whether multiple convictions should be stayed pursuant to section 654 is primarily a factual question which will not be disturbed on appeal if supported by substantial evidence. (People v. Martin (2005) 133 Cal.App.4th 776, 781.) [W]e consider the evidence in the light most favorable to [the People] and presume the existence of every fact the trier could reasonably deduce from the evidence. (Ibid.) Section 654 prohibits multiple punishments for the same act or omission. (People v. Reed (2006) 38 Cal.4th 1224, 1227, quoting 654.) Section 654, subdivision (a), states as follows: An 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 of imprisonment, but in no case shall the act or omission be punished under more than one provision. The purpose of section 654 is to ensure punishment is commensurate with culpability. (People v. Latimer (1993) 5 Cal.4th 1203, 1211.)

Section 654 applies not only where there was but one act in the ordinary sense, but also where there was a course of conduct which violated more than one statute but nevertheless constituted an indivisible transaction. [Citation.] Whether a course of conduct is indivisible depends upon the intent and objective of the actor. [Citation.] If all the 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. Perez (1979) 23 Cal.3d 545, 551.) On the other hand, if the evidence discloses that a defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for the independent violations committed in pursuit of each objective even though the violations were parts of an otherwise indivisible course of conduct. (Ibid.) Thus, where there was a course of conduct which violated more than one statute, the focus of inquiry is whether the defendant entertained single or multiple criminal objectives. (People v. Macias (1982) 137 Cal.App.3d 465, 470.)

We agree with the parties that a stay of sentence on count 1 is appropriate under section 654 regardless of whether the jurys verdict on counts 1 and 2 is based on the single act of attempting to take the officers gun or on the two distinct acts of attempting to take the gun and punching or attempting to punch the officer. If the jurys verdict as to these two counts is based only on defendants attempt to take the officers gun out of its holster, a stay is appropriate because section 654 prohibits multiple punishments for the same act. If, on the other hand, the jurys verdict on these counts is based on two distinct acts of attempting to take the gun and taking a fighting stance to punch the officer, both acts were committed as part of an indivisible transaction having a single objective -- resisting arrest.

C. Violation of Blakely

Defendant argues his sentence, which includes an upper term on count 2 (resisting arrest by attempting to take or remove an officers firearm), is unconstitutional under the Supreme Courts decision in Blakely v. Washington, supra, 542 U.S. 296, because it is based on factors which were not found true by a jury applying the reasonable doubt standard of proof. In support of the argument, defendant cites the statement by the trial court during his sentencing hearing that the appropriate sentence is the high term of three years because of the aggravating factors, the flight, the potential of injury to the officer, and no factors in mitigation.

At the time the parties initial briefs were filed on appeal, we were bound on this issue by our Supreme Courts decision in People v. Black (2005) 35 Cal.4th 1238, 1244 (Black), finding Blakely v. Washington had no effect on Californias determinate sentencing law. However, the United States Supreme Court recently overruled Black in Cunningham, supra, 127 S.Ct. 856. In Cunningham, the Supreme Court declared Californias determinate sentencing law unconstitutional under the Sixth and Fourteenth Amendments to the extent it allows trial courts to impose an aggravated upper term based on facts found by the court rather than by a jury beyond a reasonable doubt. We previously reversed the upper term sentence on count 2 in our prior opinion and remanded the matter for resentencing. Our reasons for doing so were that the trial court relied heavily on facts not found true by a jury in imposing the upper term, and because we did not have the benefit of more recent pronouncements on the issue by our Supreme Court.

Thereafter, we granted the Peoples petition for rehearing to address the Peoples contention we should uphold the original sentence imposed by the trial court on count 2 because under Cunningham it is not a constitutional violation to impose an aggravated term based solely on a defendants recidivism. According to the People, there was no constitutional violation under Cunningham because the trial court in this case relied, in part, on defendants prior criminal history to justify imposing an upper term sentence on count 2. Even assuming there was a constitutional error under Cunningham, the People argue it was harmless because the jury, if required to do so, would have found true beyond a reasonable doubt all of the aggravating factors mentioned by the court to justify imposing the upper term. In opposition, defendant argues the trial court did violate Cunningham by relying exclusively on offense-related facts not admitted or found true by a jury. He further contends the error was not harmless because the trial court might have concluded his prior convictions alone were insufficiently weighty to impose the upper term.

Based on our review of the transcript of defendants sentencing hearing, it is apparent the trial court read and considered the probation report and relied on multiple factors in aggravation to justify imposing the upper term sentence on count 2. Many of these factors related to the facts and circumstances of the current offenses rather than defendants prior criminal history. However, the trial court did state it had considered defendants entire history. In our view, this reference establishes the trial court did, in part, rely on defendants extensive criminal history, as set forth in the probation report, when it imposed the upper term. As a result, the trial court clearly relied on an aggravating factor which falls within the prior conviction exception to the constitutional rule set forth by the Supreme Court in Cunningham. (People v. Black (2007) 41 Cal. 4th 799, 813.) Under these circumstances, a defendant is not legally entitled to the middle term sentence, and the upper term is therefore the statutory maximum that a trial court may impose without violating constitutional requirements. (Ibid.) Nor is it constitutionally significant that in imposing the upper term the trial court also relied on other aggravating circumstances related to the current offenses. (Id. at pp. 814-815.) In short, the trial court in this case did not violate defendants constitutional right to a jury trial by imposing the upper term. Because we conclude there was no constitutional violation, harmless error analysis is unnecessary.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P.J.

We concur:

McKINSTER

J.

RICHLI

J.

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^[1]All further statutory references will be to the Penal Code unless otherwise noted.

^[2]Pursuant to the California Rules of Court, Rule 8.268, subdivision (d), our order of April 25. 2007 granting the Peoples petition for rehearing effectively vacated our prior opinion in this case filed March 29, 2007.