P. v. Singh
Filed 8/30/07 P. v. Singh 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
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THE PEOPLE, Plaintiff and Respondent, v. SANJEET SINGH, Defendant and Appellant. | C052505 (Sup.Ct. No. 04F03389) |
A jury convicted defendant Sanjeet Singh of carjacking (Pen. Code, 215, subd. (a); further statutory references are to the Penal Code) and second degree robbery ( 211, 212.5, subd. (c))). It found that he personally used a knife ( 12022, subd. (b)(1)) in the commission of the carjacking, but not in the commission of the robbery. Imposition of sentence was suspended and defendant was placed on probation for five years on the conditions, among others, that he serve one year of incarceration with 195 days of credit and pay a $200 restitution fine ( 1202.4) and a $200 restitution fine suspended unless probation is revoked ( 1202.44).
On appeal, defendant contends (1) his trial counsel rendered ineffective assistance by expressly refusing jury instructions on lesser included offenses of robbery, (2) the jury was erroneously instructed with CALJIC No. 2.21.2 on rejection of witness testimony, and (3) the stayed restitution fine must be stricken because section 1202.44 cannot be applied retroactively to this case; the Attorney General concedes this point. We shall modify the judgment.
FACTS
Prosecution case-in-chief
On an evening in October 2003, Dharamjeet Vic Singh[1]was driving home from his uncles house in his fathers new Toyota Camry. At an intersection, Vic recognized defendant and Sandip Singh[2]riding in a green compact car behind him. Defendant was in the front passenger seat, and Sandip was driving. Ikwal Singh, a friend of defendant and Sandip, was in the car behind Sandips car at the intersection. Vic recognized defendant, Ikwal and Sandip because they attended the same Sikh temple and cultural functions as Vic.
Vic drove through the intersection and turned onto a cross street. Sandip drove his car around Vics car, turned in front of Vics car and slammed on the brakes, forcing Vic to stop as well. Vic saw that Ikwals car was behind his, boxing him in. Defendant and Sandip got out of Sandips car, came up to the drivers side window of Vics car, and asked Vic for money. Vic replied that he did not have any money. Defendant then went around to the passenger side and entered Vics car. After telling Vic that he had a nice tape deck and a stereo, defendant placed the transmission in park, turned off the engine, and took Vics keys. Defendant and Sandip told Vic to get out of the car. When he complied, Sandip searched Vics pockets for money. Sandip found no money but did find Vics drivers license, which he took. Defendant and Sandip then searched Vics car. Defendant told Vic they needed to take his car and told Vic to come with them, but Vic refused. At this point, defendant pulled out a knife and Vic took off running.
Vic ran half a block to the Sikh temple, where he found his friend, Ranveer Singh. Vic told Ranveer he had been carjacked. Ranveer noticed that Vic was scared and nervous, like he had seen a ghost or something. The duo entered Ranveers car, searched the neighborhood for five to ten minutes without success, and then returned to the temple.
Vic found his father, Gurmel Mel Singh, at the temple and told him the car had been stolen. Vic and Mel went home to call the police.
When Vics car was recovered, the stereo had been stolen, the steering wheel was damaged, a window had been shattered, and a side-view mirror had been damaged. The car yielded one latent fingerprint that did not match defendant, Sandip or Ikwal.
Vic viewed a photographic lineup and identified defendant as the carjacker and robber.
Defendant told an investigating detective that he was with Sandip and Ikwal on the night of the incident. Defendant claimed that Sandip forced Vics car to the curb, intending to steal the cars stereo. Defendant said Sandip stole the stereo and gave it to a girl in exchange for crank.
The detective searched defendants bedroom and found a large knife underneath the mattress of his bed. When Vic viewed the knife at trial, he noted that the blade was the same width, length and color as the knife used in the carjacking. Vic was unable to identify the knife itself because he had seen only the blade, and not the whole knife, during the carjacking.
Defendants defense
Defendants brother, Vimal Singh, testified that he purchased the knife found under defendants mattress in Cancun, Mexico, in 2002. Vimal gave the knife to defendant as a Christmas gift in late 2003, well after the incident.
Vimal explained that defendant kept the knife under his bed in order to keep nightmares and evil spirits away.
Through the testimony of the investigating sheriffs deputies, defendant revealed inconsistencies in Vics description of the incident. Vic initially reported that his car had been stopped by three East Indians in a green Neon.
Later, Vic claimed that Ikwal was at the scene in a second car--a blue Pontiac.
Sandips defense
Sandips older sister testified that Vic had given or sold her methamphetamine [p]lenty of times and that she had, on occasion, used the drug with him. Vic usually would deliver the drug to her house.
Rohit Singh, who went to school with and socialized with Sandip, testified that he witnessed an altercation between Sandip and Vic prior to the present incident. Sandip punched Vic once in the face, and Rohit broke up the fight. Thereafter, Vic often said that he would do something to get back at Sandip.
DISCUSSION
I
Defendant contends his robbery conviction must be reversed because his trial counsel rendered ineffective assistance by expressly refusing jury instructions on applicable lesser included offenses. He claims the evidence supported an instruction on grand theft of property from the person of another ( 478, subd. (c)), and counsels refusal of an instruction on that offense denied his federal and state rights to due process of law. We are not persuaded.
Background
Defendant and Sandip were charged with carjacking ( 215, subd. (a)) and second degree robbery ( 211). It was alleged that defendant personally used a knife ( 12022, subd. (b)(1)) on both counts.
Following an unreported instructions conference, the trial court noted on the record that trial counsel for defendant and Sandip had differing tactical approaches on the issue of lesser included offenses. Defendants trial counsel specifically ask[ed] the Court not to instruct on any lesser-included or related instructions. The court stated, Based on my understanding of the law, the facts of this case and [defendants counsels] express affirmation that that is a defense-strategic request and -- I will honor that request and not instruct on the lesser-included offenses or lesser-related offenses, which may be Vehicle Code section 10851 and/or 487, the grand theft of an automobile or any, I take it, petty theft or lesser theft-related offense that applies, . . . Defendants trial counsel confirmed that the court was correct. Analysis
Because defendant expressly agreed to the omission of instructions on lesser-included offenses, the doctrine of invited error bars an appellate claim that the omission was error. (People v. Davis (2005) 36 Cal.4th 510, 539.) [A] defendant may not invoke a trial courts failure to instruct on a lesser included offense as a basis on which to reverse a conviction when, for tactical reasons, the defendant persuades a trial court not to instruct on a lesser included offense supported by the evidence. [Citations.] In that situation, the doctrine of invited error bars the defendant from challenging on appeal the trial courts failure to give the instruction. [Citation.] (People v. Horning (2004) 34 Cal.4th 871, 905, quoting People v. Barton (1995) 12 Cal.4th 186, 198.)
In order to demonstrate that trial counsels express refusal of lesser included instructions was ineffective, defendant must establish both of the following: (1) that counsels representation fell below an objective standard of reasonableness; and (2) that there is a reasonable probability that, but for counsels unprofessional errors, a determination more favorable to defendant would have resulted. [Citations.] If the defendant makes an insufficient showing on either one of these components, the ineffective assistance claim fails. Moreover, a court need not determine whether counsels performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. [Citations.] (Peoplev.Rodrigues (1994) 8 Cal.4th 1060, 1126; italics in original.)
In this case, any deficient performance could not have been prejudicial because no substantial evidence suggested that defendant obtained Vics personal property without using force or intimidation.
Robbery is the . . . taking of . . . property . . . accomplished by means of force or fear. [ 211].) Accordingly, to support a robbery conviction, the taking, either the gaining possession or the carrying away, must be accomplished by force or fear. [Citation.] Gaining possession or . . . carrying away includes forcing or frightening a victim into leaving the scene, as well as simply deterring a victim from preventing the theft or attempting to immediately reclaim the property. (People v. Prieto (1993) 15 Cal.App.4th 210, 211-216 [] [victim too fearful and shocked to intervene in nearby struggle between perpetrator and second victim over purses belonging to both victims]; People v. Dominguez (1992) 11 Cal.App.4th 1342, 1346-1349 [] [victim ordered out of his residence at gunpoint before property was carried off]; People v. Hays (1983) 147 Cal.App.3d 534, 541-542 [] [fearful victim fled before taking of property].) (People v. Flynn (2000) 77 Cal.App.4th 766, 771; italics added.)
The evidence showed that Sandip removed Vics drivers license from his pocket and then remained on the scene to search Vics car. Defendant presented the testimony of Sacramento County Sheriffs Deputy Robert White, who had interviewed Vic on the night of the robbery. Vic reported to White that, after he was out of his car, defendant pulled out a knife and Vic thereafter ran to his home. Thus, by defendants own evidence, the taking of Vics wallet was not complete until after defendant pulled the knife, forcing or frightening [Vic] into leaving the scene, rather than attempting to immediately reclaim the property. (People v. Flynn, supra, 77 Cal.App.4th at p. 771; italics added.) There was no substantial evidence that the offense was less than robbery, and the omission of jury instructions on inapplicable lesser offenses could not have been prejudicial.
II
Defendant contends CALJIC No. 2.21.2 impermissibly lightened the prosecutions burden of proof because it allowed the jury to use the probability standard to evaluate the testimony of crucial prosecution witnesses who had been impeached.[3] We disagree.
The California Supreme Court has rejected contentions identical to defendants. (People v. Nakahara (2003) 30 Cal.4th 705, 714; People v. Maury (2003) 30 Cal.4th 342, 428-429.) These authorities are binding upon this court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) In any event, this court has previously rejected the contention. (People v. Wade (1995) 39 Cal.App.4th 1487, 1493.)
III
Defendant contends, and the Attorney General agrees, the section 1202.44 fine must be stricken because the statute went into effect after the present crimes were committed. We accept the Attorney Generals contention.
People v. Callejas (2000) 85 Cal.App.4th 667 (Callejas) considered the analogous question whether a parole revocation fine under section 1202.45 could be imposed in a case where the offense was committed before the statute creating the fine was enacted. (Id. at p. 678.) The court concluded that even though the triggering event, the revocation of parole, was to occur subsequent to the enactment of the new statute, the fine could not be applied retroactively to increase the punishment for the original offense. (Ibid.)
In this case, the carjacking and robbery occurred on October 4, 2003. Defendant was ordered to pay a $200 probation revocation restitution fine pursuant to section 1202.44, which became operative on August 16, 2004. (Stats. 2004, ch. 223 (SB 631).) Under the reasoning of Callejas, the section 1202.44 fine cannot be applied retroactively to this case.
DISPOSITION
The judgment is modified by striking the section 1202.44 restitution fine. As so modified, the judgment is affirmed.
MORRISON , J.
We concur:
SCOTLAND, P.J.
CANTIL-SAKAUYE , J.
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[1] Several parties and witnesses have the surname Singh. For clarity, we refer to these persons by their first names or nicknames.
[2] Sandip was a codefendant at trial. A separate jury acquitted him on both counts.
[3] The jury was instructed on CALJIC No. 2.21.2 as follows: A witness who is willfully false in one material part of his or her testimony is to be distrusted in others. You may reject the whole testimony of a witness who willfully has testified falsely as to a material point unless from all the evidence you believe the probability of truth favors his or her testimony in other particulars.
