Filed 8/15/22 P. v. Pineda CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Appeal from a judgment of the Superior Court of Orange County, Jonathan S. Fish, Judge. Affirmed as modified with directions.

Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Daniel B. Rogers, Assistant Attorney General, Melissa A. Mandel and Joseph C. Anagnos, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

INTRODUCTION

On October 8, 2020, at approximately 1:00 a.m., the victims, D.M. and T.M., while preparing for their paper route, were approached by defendant Carlos Alfredo Pineda. D.M. is disabled and was sitting in the driver seat. His wife, T.M. exited the car on the passenger side, to prepare to transfer newspapers from one vehicle to the one D.M. occupied. Pineda approached the victims and accused them of stealing the car. Pineda, who was behaving strangely, stated he was going to take the car from them, attempted to open the driver’s side door, tugged on D.M.’s seat belt, and yelled at D.M. several times to get out. Unsuccessful in taking the car, Pineda began ransacking the backseat searching for T.M.’s backpack. Police officers arrived at the scene, conducted a search on Pineda and found a bulbous pipe of the type used to smoke methamphetamine on Pineda who seemed coherent at the time.

A jury convicted Pineda of one count of attempted carjacking (Pen. Code, §§ 215, subd. (a), 664, subd. (a)), one count of attempted petty theft (Pen. Code, §§ 484, subd. (a), 488, 664, subd. (b)), and one count of possession of drug paraphernalia (Health & Saf. Code, § 11364, subd. (a)). The trial court sentenced him to a prison term of five years.

Pineda challenges his convictions on three grounds: (1) The evidence was insufficient to support the conviction for attempted carjacking; (2) the evidence was insufficient to support the conviction for attempted petty theft; and (3) when committing the charged offenses, he was intoxicated, and his voluntary intoxication negated the specific intent necessary to be convicted of either crime. We conclude sufficient evidence supports the convictions and therefore affirm, with one modification.[1]

FACTS

I. Pineda Attempts to Commit Carjacking

At aproximately1:00 a.m. on October 8, 2020, the victims, were moving newspapers from one of their cars to the other when Pineda approached them. T.M. told D.M. to be careful because Pineda looked like a “cholo,” meaning a “gang member who goes out at night to steal.” Once Pineda came within 18 inches of T.M., he said that the cars did not belong to her and accused her of stealing them. Pineda tried to intimidate T.M. by asking her if she was aware that a woman had been raped in the area. She responded, “No, and I don’t care.” Pineda then said he would never do that to her because he has a daughter.

Pineda approached D.M., who was sitting in the driver’s seat of the car. Pineda claimed he had once kicked D.M. in the stomach while trying to rob him of his cell phone. D.M. did not know Pineda and had never seen him before. Pineda also claimed he served two years in jail because of D.M. and the car did not belong to him. Pineda opened the car door and told D.M. to get out, the car did not belong to D.M., and Pineda was going to take the car. D.M. tried to close the car door several times but Pineda pulled the door toward him and kept it open. After several minutes struggling over the door, Pineda tried to undo D.M.’s seat belt by pulling on it at the shoulder. While tugging on the seat belt, Pineda yelled at D.M. four or five times to get out of the car; each time D.M. said he would not get out of the car and, due to his disability, was not able to get out of the car. A neighbor heard Pineda screaming, “Get out of the car. This is my car. You had me arrested years ago when I stole your wallet.”

Pineda let go of the door and D.M. closed it. Pineda then opened the rear door of the car and started pulling items out. At about this time, both T.M. and a neighbor called 911.

II. Pineda Attempts to Commit Petty Theft

When Pineda approached D.M., T.M. moved her backpack, which contained their wallets, from the backseat to the front passenger seat’s foot area. After failing to remove D.M. from the car, Pineda went to the rear driver’s side door and asked where the backpack was. In search of the backpack, Pineda rummaged through the backseat of the car and threw items onto the ground. The neighbor who called the police testified that Pineda was saying the Spanish word for “bag you throw over your shoulder,” as he was throwing out items from the backseat.

Pineda stopped removing items from the backseat when police arrived at around 1:10 a.m. Minutes later, another police officer arrived and spoke with Pineda. Pineda told the officer he had been helping the individuals nearby.

The police detained Pineda and searched him. Upon searching Pineda, an officer discovered a bulbous pipe used for smoking methamphetamine. However, the officer found no drugs on Pineda.

III. Pineda’s Voluntary Intoxication

D.M. suspected Pineda may have been high on drugs. D.M. told T.M. to tell the police dispatcher Pineda was “high on drugs” and “want[ed] to take our car away.” Both testified Pineda was still coherent and making sense. One officer remarked that Pineda was, “so high right now”; however, that officer did not think Pineda was so high he could not interact with him. Throughout the interview, Pineda did whatever the officers told him to do and addressed each officer directly when asked.

DISCUSSION

I. Sufficiency of the Evidence

A. Standard of Review

When an appellant challenges the sufficiency of evidence, we apply the substantial evidence standard of review. “When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, 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. [Citation.] . . . [Citations.] We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact’s findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] A reviewing court neither reweighs evidence nor reevaluates a witness’s credibility.” (People v. Lindberg (2008) 45 Cal.4th 1, 27.) The testimony of a single witness, unless physically impossible or inherently improbable, is sufficient to support a conviction. (Evid. Code, § 411; People v. Young (2005) 34 Cal.4th 1149, 1181.)

B. The Evidence is Sufficient to Support the Conviction for Attempted Carjacking

The Penal Code defines carjacking as “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.” (Pen. Code, § 215, subd. (a).) An attempt to commit a crime has two elements: (1) “a specific intent to commit the crime” and (2) “a direct but ineffectual act done toward its commission.” (Pen. Code, § 21a.)

The specific intent required is the intent to bring about the consequences of the attempted crime. (People v. Herman (2002) 97 Cal.App.4th 1369, 1385-1386.) Thus, to be convicted of attempted carjacking, the defendant must have had the intent to temporarily or permanently deprive the victim of his or her car. (Pen. Code, §§ 21a, 215, subd. (a).)

“‘“Commission of an element of the underlying crime other than formation of intent to do it is not necessary. [Citation.] Although mere preparation such as planning or mere intention to commit a crime is insufficient to constitute an attempt, acts which indicate a certain, unambiguous intent to commit that specific crime, and, in themselves, are an immediate step in the present execution of the criminal design will be sufficient.”’” (People v. Herman, supra, 97 Cal.App.4th at p. 1385.)

The evidence showed that Pineda formed and expressed the specific intent to either permanently or temporarily deprive the victims of possession of the car and undertook a direct though ineffective act toward taking the car by using fear of force. Pineda was within 18 inches of T.M. when he told her the car did not belong to her.

Pineda approached D.M. while he was sitting in the front seat of the car, claimed he had served jail time because of him, and told him he did not own the car. Pineda opened the driver’s side door, told D.M. to get out, and said he was going to take the car. Every time D.M. tried to close the car door, Pineda pulled the door open. Pineda yelled at D.M. four or five times to get out of the car. Pineda tried to forcibly remove D.M. from the car by undoing his seat belt and pulling on it at the shoulder. Pineda’s actions represent more than mere preparation. The evidence was more than sufficient to support the conviction for attempted carjacking.

An analogous case is People v. Gray (1998) 66 Cal.App.4th 973. In that case, the defendant told the victim to give him her car keys. When the victim refused, the defendant placed his hand under his shirt, told the victim he had a gun, and threatened to kill her if she did not cooperate. (Id. at p. 980.) The defendant grabbed the car door to prevent the victim from shutting it, but, after a brief struggle, let go, and the victim drove off. (Ibid.) The appellate court concluded substantial evidence supported the conviction for attempted carjacking: “There is substantial evidence in this case that appellant threatened [the victim] with physical violence by pretending to have a gun, and that he demanded that [the victim] give him her car keys. This evidence is sufficient to establish that appellant intended to exercise dominion and control over [the victim’s] car through force or fear and, therefore, that he intended to deprive [the victim] of possession of her car.” (Id. at p. 985.)

In the present case, Pineda, not only threatened force but used actual physical force in an attempt to remove D.M. from the car and exercise dominion and control over it. Pineda insisted the car did not belong to the victims and attempted to take it. Although Pineda did not pretend to have a gun, as did the defendant in People v. Gray, supra, 61 Cal.App.4th 973, Pineda did try to forcibly remove D.M. from the car.

Further evidence that Pineda used force or fear was his close proximity to the victims. In People v. Brew (1991) 2 Cal.App.4th 99, the defendant was considerably larger than the victim and stood two and one half to three feet away from the victim when he robbed her. The appellate court concluded this evidence supported a finding that the robbery was committed through fear or intimidation. (Id. at p. 104.) Pineda stood only 18 inches away from T.M. when he threatened her and demanded she give the car to him. Pineda stood right next to D.M. when he told him to get out of the car. D.M. uses a wheelchair and told Pineda he was unable to walk.

We therefore conclude substantial evidence supports the conviction for attempted carjacking.

C. The Evidence is Sufficient to Support the Conviction for Attempted Petty Theft

Theft is defined as a “‘taking with intent to steal the property—that is, the intent to permanently deprive the owner of its possession.’” (People v. Orozco (2020) 9 Cal.5th 111, 121.) Petty theft is defined as “theft where the value of the money, labor, real or personal property taken does not exceed nine hundred fifty dollars ($950) . . . .” (Pen. Code, § 490.2, subd. (a).) Attempt requires a direct but ineffectual act toward the commission of the target crime. (Pen. Code, § 21a.)

In the present case, Pineda asked T.M. where the backpack was and then rummaged through the backseat of the victims’ car in search of it. A reasonable inference is Pineda was looking for the backpack. During his efforts to find the backpack, he shouted the Spanish word for “bag you throw over your shoulder” and threw items from the backseat out of the car. These actions were not mere preparation but constituted a direct but ineffectual step toward committing petty theft of the backpack. The evidence thus established Pineda intended to commit the target offense of taking another’s property, specifically the backpack, and claiming it as his own.

II. Voluntary Intoxication

Pineda argues the evidence established he was voluntarily intoxicated on methamphetamines, and, therefore, he was incapable of forming the specific intent necessary to be convicted of attempted carjacking and attempted petty theft.

Evidence of voluntary intoxication is admissible only when the defendant is charged with a specific intent crime and only on the issue of whether the defendant actually formed the required specific intent. (Pen. Code, § 29.4, subd. (b); see People v. Berg (2018) 23 Cal.App.5th 959, 965‑966; People v. Mendoza (1998) 18 Cal.4th 1114, 1121-1122, 1124.) “[E]vidence of voluntary intoxication is relevant to the extent it bears upon the question whether the defendant actually had the requisite specific mental state required for commission of the crimes at issue.” (People v. Horton (1995) 11 Cal.4th 1068, 1119.) In other words, evidence of voluntary intoxication “can only have the effect of negating specific intent.” (People v. Kelly (1973) 10 Cal.3d 565, 573.)

A specific intent crime is one in which the definition of the crime “refers to defendant’s intent to do some further act or achieve some additional consequence.” (People v. Hood (1969) 1 Cal.3d 444, 457.) Carjacking is a specific intent crime because, in addition to the proscribed taking of the vehicle by force or fear, it requires that the defendant have acted with the specific intent to “either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession.” (Pen. Code, § 215, subd. (a).) Attempt is considered a specific intent crime because it requires the specific intent to commit the crime. (People v. Herman, supra, 97 Cal.App.4th at p. 1385.)

The substantial evidence rule applies to Pineda’s voluntary intoxication claim. When evidence of voluntary intoxication is presented to a properly instructed jury on the issue of whether the defendant had the intent to commit the crime charged, the verdict will not be disturbed if the facts are sufficient to support the implied finding that the defendant acted with the required specific intent. (People v. Coleman (1942) 20 Cal.2d 399, 409, overruled in part on other grounds by People v. Wells (1949) 33 Cal.2d 330, 355.)

We conclude the evidence was sufficient to support the jury’s implied finding Pineda formed the requisite specific intent. D.M. suspected Pineda was high on drugs and told T.M. to tell the police dispatcher that Pineda was on drugs. However, D.M. testified Pineda’s statements made sense and he seemed to be coherent. The police officer who interviewed Pineda at the crime scene testified Pineda seemed to be coherent. Throughout the interview, Pineda did whatever the officers told him to do and addressed each officer directly when asked. As Pineda spoke, he responded “appropriately” to the officers. The interviewing officer could understand what Pineda was saying, and he appeared to understand what the officer was telling him.

Pineda points to evidence supporting a finding that he was intoxicated and therefore could not have formed the specific intent necessary to commit the charged crimes. Pineda behaved strangely and, when the officers arrived, one officer remarked that Pineda was “so high right now” and a bulbous pipe was found in Pineda’s possession. D.M. testified, however, that Pineda was coherent, and the officer testified that Pineda was not so high that he could not interact with him, and there was no evidence the pipe had recently been used.

Whatever weight the evidence of intoxication might have had, it did not compel the jury to accept Pineda’s intoxication defense: “Evidence of intoxication, while legally relevant, may be factually unconvincing. ‘[A]s with any evidence, the jury may give this testimony whatever weight it deems appropriate in light of the evidence as a whole.’ [Citation.] . . . [A] jury need not accept an intoxication defense . . . .” (People v. Mendoza, supra, 18 Cal.4th at p. 1134.)

In People v. Cain (1995) 10 Cal.4th 18, the defendant had smoked cocaine and was possibly intoxicated from beer and marijuana when he murdered the victim. A witness testified the defendant appeared to have the symptoms of cocaine use. (Id. at p. 40.) Despite those facts, the California Supreme Court concluded that “this sparse evidence does not compel us to find that the only rational conclusion a jury could have reached was defendant was incapable of forming a specific intent to kill due to his voluntary intoxication.” (Ibid.)

Pineda was found with a bulbous pipe on his person, was observed as acting intoxicated by the police officer, and D.M. told T.M. to tell the police dispatcher that Pineda was on drugs. However, as in People v. Cain, supra, 10 Cal.4th at page 40, this evidence was “sparse” and is insufficient to cause us to disturb the jury verdict. There was sufficient evidence to support the jury’s implied finding that Pineda formed the specific intent to commit attempted carjacking.

Disposition

The judgment is modified to strike the five‑year prison term enhancement under Penal Code section 667, subdivision (a). As modified, the judgment is affirmed. The trial court is directed to prepare amended minutes of the June 11, 2021 sentencing hearing to reflect that the enhancement under Penal Code section 667, subdivision (a) is stricken.

SANCHEZ, J.

WE CONCUR:

GOETHALS, ACTING P. J.

MARKS, J.*

*Judge of the Orange County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

[1] The trial court found to be true a five‑year serious prior felony enhancement allegation (Pen. Code, § 667, subd. (a)), but struck that enhancement for purposes of sentencing. The sentencing minutes erroneously state that enhancement had been stayed. The Attorney General requests that we direct the trial court to amend the sentencing minutes to reflect that the prior serious felony enhancement was stricken. We agree the sentencing minutes must be amended (People v. Zackery (2007) 147 Cal.App.4th 380, 385‑386) and shall direct the trial court to prepare amended minutes. The abstract of judgment reflects the correct sentence and need not be amended.