P. v. Miller
Filed 11/15/13 P. v. Miller 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NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE DISTRICT
(Sacramento
----
THE PEOPLE,
Plaintiff and Respondent,
v.
RICHARD MILLER,
Defendant and Appellant.
C071779
(Super. Ct. No. 08F10092)
A
jury convicted defendant Richard Miller of carjacking (count one), second
degree robbery (count two), assault with a
firearm (count three), theft of a firearm (count four), and two counts of
felon firearm possession (counts five [Smith & Wesson handgun] and six
[Beretta handgun]). (Pen. Code, §§ 215,
subd. (a), 211, 245, subd. (a)(2), 487, subd. (d), former 12021(a)(1).)
enhancements, that defendant personally used a firearm during the commission of
counts one through three. (§§ 12022.53,
subd. (b), 1203.06, subd. (a)(1), 12022.5, subd. (a)(1).)
Sentenced
to an unstayed term of 16 years four months, defendant appeals. He contends (1) the evidence is insufficient
to support his convictions of carjacking (count one) and felon firearm
possession (count six, Beretta); (2) the trial court erred by not instructing
on the lesser included offense of simple assault; and (3) the trial court erred
in imposing consecutive sentences on the carjacking (count one) and the Smith
& Wesson possession (count five). We
disagree and shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The Carjacking
On December 9, 2008, Rodrick Davis drove
home from work in his Mustang. Davis
worked as an armored car driver and his job-required, loaded Smith & Wesson
handgun rested on the front passenger seat.
Davis backed into a parking
spot at his apartment complex.
While
parking, Davis observed a Chevrolet
Suburban parked nearby, and also noticed that his Mustang’s left headlight
appeared out. When Davis
exited the Mustang to check the light, two men suddenly appeared.
One
man shouted, “Nice car.†Davis
responded, “Thank you.†Then a third
man, defendant, approached Davis from behind, went in the Mustang through the
driver’s side, and reached for the gun.
As Davis
pulled defendant out of the vehicle, the men fought over the weapon. Both had their hands on the firearm at one
point and a round ejected from the gun’s chamber. Defendant gained control over the weapon, and
defendant pointed the gun directly at Davis.
vehicle. Both men fell to the ground
near some bushes.
On
the ground, the struggle for the gun continued.
Davis landed on top of
defendant. Feeling a “sharp objectâ€
pressed into his side, Davis rolled
off of defendant because he did not want to “get shot.†While Davis
could not see the object, he thought it was a gun. The two other men approached Davis and
defendant at this time. Defendant said
to them, “If he move, kill him.â€
Defendant and the other two men then kicked and hit Davis
in his back, face, head, and side. During the assault, Davis lay on the ground
with his eyes closed and feigned unconsciousness.
After
the beating subsided, one man put an object to Davis’s head and someone said,
“If he moves, blow his head off.†Davis
also heard someone say, “Well, what should we do with his car?†and “[g]o
through his pockets.â€
With
the object still pressed to his head, Davis lay on the ground with his eyes
closed when he heard his car start.
After a few seconds, the individual holding the object to Davis’s head ran
off. Davis opened his eyes, stood up,
and saw the Suburban drive off in the same direction as the Mustang.
Events After the Carjacking
After
calling 911, Davis grabbed his girlfriend’s car keys, got in her car, and drove
off in search of his Mustang.
Davis
found the Mustang stopped in the driveway of the apartment complex near the
garbage dumpster; no one was around it.
Shortly after, the Suburban drove up and two men jumped out of
the Suburban and entered the Mustang.
Davis believed that the two men went through his belongings located in
the Mustang.
Meanwhile,
responding police officer William Hancock drove into the apartment complex and
Davis waved him down. Davis described
the Suburban and recounted the events of the carjacking, including the taking
of his Smith & Wesson handgun. Davis
said that a man jumped into his car and grabbed his gun located on the front
passenger seat.
title="">[4]
After
receiving the description, Officer Hancock and other officers found the
suspects in the Suburban, and chased them for three to five miles, whereupon
the Suburban collided into a fire hydrant.
Officers apprehended defendant when he tried to exit the front passenger
window of the Suburban.
Property Located After the Carjacking
At
the crash site, officers discovered the Smith & Wesson, Davis’s handgun,
underneath a passenger seat of the Suburban.
Later, Detective Michael Darlington inspected the impounded Suburban and
found, in the rear compartment of the center console, a loaded .25-caliber
Beretta handgun, a wallet containing $362, an identification card with the name
Anthony Miller, and a police citation issued to Anthony Miller. Detective Darlington also found $46—the
amount that Davis said was in his wallet that night—on the rear driver’s side seat and
Davis’s wallet in the driver’s side floorboard area.
Back
at the apartment complex, officers recovered a Ruger handgun adjacent to the
bushes where the struggle between Davis and defendant occurred.
DISCUSSION
I. Sufficiency
of the Evidence
Defendant
contends the evidence is insufficient to sustain the convictions for carjacking
and one of the felon firearm possession counts (count six, Beretta
handgun). Defendant challenges the
carjacking conviction, claiming the evidence is insufficient that he formed the
requisite intent to take the Mustang before or during the use of force or
fear. Defendant challenges the firearm
conviction of count six, claiming the evidence is insufficient that he
“possessed†the Beretta handgun.
Discussing these two arguments in turn, we disagree.
In
reviewing the sufficiency of the evidence, we “review[] the entire record in
the light most favorable to the prosecution to determine whether it contains
evidence that is reasonable, credible, and of solid value, from which a reasonable trier of
fact could find the defendant guilty beyond a reasonable doubt.†(People
v. Kipp (2001) 26 Cal.4th 1100, 1128.)
This standard of review is not altered where the People rely primarily
on circumstantial evidence. (People
v. Bloyd (1987) 43 Cal.3d 333, 346-347.)
A. Sufficiency
of the Evidence—Carjacking
Carjacking
is defined, as pertinent here, as the “the felonious taking of 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 motor vehicle of his or her
possession, accomplished by means of force or fear.†(§ 215, subd. (a).) The requisite intent must be formed before or
during the use of force or fear. (
609, 618, 622.) Defendant contends the evidence is insufficient that he had the
requisite intent before or at the time he applied force against Davis.
Having
just expounded the evidence, it is unnecessary to recite it again here. Rather, we are satisfied that a reasonable
trier of fact could have found beyond a reasonable doubt that defendant formed
the intent to permanently or temporarily deprive Davis of his Mustang before or
during the use of force or fear. “Intent
is rarely susceptible of direct proof and usually must be inferred from the
facts and circumstances surrounding the offense.†(People
v. Pre (2004) 117 Cal.App.4th 413, 420.)
The
evidence included the statement “nice car,†which occurred just before the men
and defendant assaulted Davis. A
reasonable juror could have found that defendant formed the intent to deprive
Davis of the Mustang at that moment. Or,
a reasonable juror could have found that defendant formed the requisite intent
when approaching Davis from behind, creating the inference that defendant was
about to knowingly engage in malicious or illegal behavior. Or, a reasonable juror could have found that
defendant formed the requisite intent while assaulting Davis, as demonstrated
by the discussion about what to do with the Mustang. Accordingly, we conclude the jury could
readily infer from the entire sequence of events that defendant intended to
deprive Davis of the possession of his car before or during the use of force or
fear—the assault.
Defendant’s
contention that he merely formed the intent to deprive Davis of his smaller,
personal possessions, and not his car, is without merit. While this is a possible inference, this is
not what the jury reasonably concluded.
Defendant simply asks us to reweigh the evidence. That we cannot do. Viewing the evidence in
the light most favorable to the judgment, we find there is sufficient evidence
that defendant committed carjacking.
B. Sufficiency
of Evidence—Felon Firearm Possession
Defendant
next claims there is insufficient evidence that he “possessed†the Beretta
handgun (count six). We disagree.
The
applicable statute, former section 12021, subdivision (a)(1), provides, “Any
person who has been convicted of a felony . . . and who . . .
has in his or her possession or under his or her custody or control any firearm
is guilty of a felony.†Defendant and
the People stipulated that defendant was previously convicted of a felony.
Possession
need not be actual or exclusive. (
618, 622.) “A defendant possesses a
weapon when it is under his dominion and control.†(People
v. Peña (1999) 74 Cal.App.4th 1078, 1083.) “[P]ossession may be imputed when the contraband
is found in a place which is immediately and exclusively accessible to the
accused and subject to his dominion and control, or to the joint dominion and
control of the accused and another.†(
48, 52.) The elements of possession may
be established by “circumstantial evidence and any reasonable inferences drawn
from such evidence.†(People v.
Harrington (1970) 2 Cal.3d 991, 998.)
The
evidence shows that the Beretta was in the rear compartment of the Suburban’s
center console. An identification card
and a citation, both with defendant’s surname, “Miller,†were also located in
this center console (in a wallet).
Defendant sat in the front passenger seat of the Suburban. A reasonable trier of fact could conclude
that defendant placed his possessions, the Beretta and the wallet, in the
console because it was within his immediate reach. Such evidence “establish[es] a chain of
circumstances from which defendant’s knowledge and actual or constructive
possession or control of the firearm could be readily inferred supporting a
finding of guilt.†(People v. Cordova (1979) 97 Cal.App.3d 665, 670.)
Defendant’s
argument that the record lacks “any fact†to establish possession is
overstated. Such facts—the
wallet, identification card, citation, and access to the gun—were
considered by the jury, and in conducting sufficiency of the evidence review,
we are guided by the rule that “it is the jury, not the appellate court which
must be convinced of the defendant’s guilt beyond a reasonable doubt.†(People
v. Bean (1988) 46 Cal.3d 919, 933.)
Defendant’s
reliance on In re Anthony J. (2004)
117 Cal.App.4th 718 is misplaced.
In Anthony J., the court found
insufficient evidence to sustain a conviction of possession of a stolen vehicle. (Id.
at p. 728.) The court applied the
familiar rule that possession
of stolen property requires
“something more†than mere presence or access, but that “something more†may be
rather slight. (People v. Land (1994) 30 Cal.App.4th 220, 224.) Here, defendant is not charged with
possessing a stolen Beretta;
defendant is charged with possessing a firearm as a convicted felon. Even if this standard were appropriate, the
evidence previously discussed shows “something more†than mere presence or
access.
There
is sufficient evidence that defendant exercised control over, and therefore
possessed, the Beretta handgun.
II. Lesser
Included Offense Instruction
Defendant
argues the trial court erred when it failed to instruct the jury, on its own
initiative, on simple assault as a lesser included offense of assault with a
firearm. We find no error.
Defendant
correctly states the general rule for sua
sponte instruction on a lesser included offense: A trial court has a sua sponte duty to give
instructions on lesser included offenses when the evidence raises a question as
to whether all of the elements of the charged offense were present. (People
v. Breverman (1998) 19 Cal.4th 142, 154-155.) But, this rule is limited. “[T]he
existence of ‘any evidence, no matter
how weak,’ †does not compel the giving of a lesser included offense
instruction. (Id. at p. 162.) A
lesser included offense instruction is warranted only if substantial evidence
exists from which a reasonable jury could conclude “ ‘that the lesser
offense, but not the greater, was committed.’ †(People
v. Avila (2009) 46 Cal.4th 680, 705, quoting People v. Cruz (2008) 44 Cal.4th 636, 664.)
Simple assault is “an
unlawful attempt, coupled with a present ability, to commit a violent injury on
the person of another.†(§ 240.) The People concede that simple assault is a
lesser included offense of assault with a firearm. (People
v. McDaniel (2008) 159 Cal.App.4th 736, 747.)
The evidence in this case was
insufficient for the jury to have concluded that defendant committed the
lesser, but not the greater, offense.
The victim, Davis, testified he felt a sharp, heavy object
pressed against his side and head at various times in the assault. Davis further testified there was a gun in
the Mustang’s front passenger seat, he and defendant fought over it, defendant
pointed it at him, and Davis then felt an object pressed against his side. Davis also heard one of the three men say,
“[B]low his head off,†implying that defendant wielded some type of firearm.
the evidence shows a physical altercation between defendant and Davis,
throughout which defendant was armed.
The
trial court did not err by failing to instruct sua sponte on simple assault,
because the evidence was insufficient to support a finding of simple assault
rather than assault with a firearm.
III. Consecutive
Sentencing
Defendant
claims the trial court erred in imposing sentence on both counts one (carjacking—Mustang) and five (felon firearm
possession—Davis’s Smith & Wesson handgun).
The trial court found that the two counts were “committed at different
times at separate places rather than being committed so close in time and place
as to indicate a . . . single period of aberrant behavior.†It is unclear whether defendant is arguing
that there is insufficient evidence of separate intent and objective pursuant
to section 654, or that the trial court abused its discretion for consecutive
sentencing.
title="">[6] Both claims are dispelled based on the same
reasoning.
Section
654 proscribes multiple punishments for offenses arising out of “a course of
conduct which violate[s] more than one statute but nevertheless constitute[s]
an indivisible transaction.†(
545, 551; People v. Britt (2004) 32 Cal.4th
944, 951-952; Neal v. State of California
(1960) 55 Cal.2d 11, 19.)
In
for purposes here that, “ ‘where the evidence shows [an illegal firearm]
possession distinctly antecedent and
separate from the primary offense, punishment on both crimes has been
approved. On the other hand, where the
evidence shows [an illegal firearm] possession only in conjunction with the
primary offense, then punishment for the illegal possession of the firearm has
been held to be improper where it is the lesser offense.’ †(Italics added.)
When
applying section 654, the threshold inquiry is whether the defendant had
separate objectives and intents concerning his multiple offenses. (People
v. Ratcliff (1990) 223 Cal.App.3d 1401, 1408.) “Further, the question whether the defendant
held multiple criminal objectives is one of fact for the trial court, and its
finding will be upheld on appeal if there is any substantial evidence to
support it.†(Ibid.)
Numerous
cases have addressed the application of section 654 where a defendant is
convicted of both illegally possessing a weapon and using it to carry out an
offense. (See Bradford,
occurred when the defendant obtained an officer’s gun and then shot him];
1027, 1033-1034 [when there was no evidence that the defendant possessed a gun
before or after a burglary, he could not be punished for multiple offenses];
814, 821 [an indivisible transaction occurred when the defendant obtained a gun
during a struggle immediately before the shooting].)
This
case is distinguishable from Bradford,
Jurado, and Venegas. Here, there is
substantial evidence that defendant possessed Davis’s Smith & Wesson
handgun before and after the carjacking.
A reasonable fact finder could conclude that defendant had two separate
objectives: to possess Davis’s gun, and
to possess Davis’s Mustang. The
carjacking did not occur immediately after defendant obtained possession of the
firearm. Rather, defendant and his
associates assaulted the victim in the interim. The events were not a single period of aberrant behavior.
The
record supports the trial court’s conclusion that counts one and five occurred
at different times and places. The
carjacking of the Mustang (count one) occurred at the apartment complex, but
the Smith & Wesson possession (count five) continued after that, because
detectives discovered the Smith & Wesson in the Suburban three to five
miles from the scene of the carjacking. It
is also worth noting that at this point, the Mustang had been abandoned, yet
defendant maintained possession of the firearm. The possession of the Smith & Wesson
firearm and the carjacking were therefore separate events.
Defendant
cites the prosecutor’s closing argument as evidence of one continuous event.
not evidence. (See § 1093, subd. (e).) Defendant cites no other evidence to support
this theory. Viewed in the light most
favorable to the judgment, there is substantial evidence to support consecutive
sentencing of counts one and five.
DISPOSITION
The
judgment is affirmed.
BUTZ ,
J.
We concur:
BLEASE ,
Acting P. J.
NICHOLSON ,
J.
name="_ftn1" title="">[1] Undesignated
statutory references are to the Penal Code.
name="_ftn2" title="">[2] In
court, Davis temporarily recanted this portion of events because he was
“nervous†about specific audience members. He then corrected this testimony.
