P. v. Hicks

Filed 8/30/07 P. v. Hicks CA2/3

Opinion following remand by U.S. Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, Mark C. Kim, Judge. Affirmed in part and vacated in part.

Julie Schumer, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Chung L. Mar and Corey J. Robins, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

INTRODUCTION

Defendant and appellant David Hicks appeals from the judgment entered following a jury trial that resulted in his convictions for carjacking and unlawfully driving or taking a vehicle. Hicks was sentenced to 10 years in prison. In our original nonpublished opinion, filed November 3, 2005, we affirmed Hickss convictions and ordered his sentence modified to impose a 10-year Penal Code section 12022.53, subdivision (b) firearm enhancement.^[1] (People v. Hicks (Nov. 3, 2005, B178886, [nonpub. opn.].)

On February 20, 2007, the United States Supreme Court vacated the judgment and remanded to us for further consideration in light of Cunningham v. California (2007) 549 U.S. __ [166 L.Ed.2d 856, 127 S.Ct. 856].) We requested and received further briefing from the parties on the effect of Cunningham on Hickss sentence. We now affirm Hickss convictions, but order the sentence vacated in light of Cunningham. Accordingly, we remand to the trial court for resentencing.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts.

Viewed in accordance with the usual rules governing appellate review (People v. Rodriguez (1999) 20 Cal.4th 1, 11), the evidence relevant to the issues presented on appeal established the following. On July 29, 2002, Carlos Hernandez left his Toyota Sienna minivan parked at a Metro Green Line station in Long Beach. When he returned to and entered his vehicle at approximately 7:15 that evening, Hicks and another man approached Hernandez. Hicks, holding a gun, demanded Hernandezs car keys. Hernandez gave Hicks the keys; Hicks gave the keys to the other assailant. Hicks entered the passenger side of the van, while his cohort entered the drivers side and drove the van away.

Later that evening, Hicks drove his girlfriend, Shari Jackson, to a Jack-in-the-Box restaurant in Hernandezs minivan. Hicks told Jackson the van belonged to codefendant Joseph Williamss girlfriend. At approximately 11:30 p.m., Hicks, Williams, and Jackson all visited the residence of Jacksons friend, Robin Cleveland, at Clevelands apartment.

Shortly before midnight, Hicks and Williams were outside the apartment rolling up some marijuana. Jose Cervantes walked up and introduced himself. Hicks introduced himself as S-Dog from Mona Park, and the two men shook hands. Hicks and Cervantes [had] words. Williams pulled out a gun and shot Cervantes in the head and torso, killing him. Hicks and Williams ran to Hernandezs minivan and sped away, hitting a light pole. When police arrived, Hicks and Williams were gone and the vans keys were in the ignition.

2. Procedure.

Trial was by jury. Hicks and Williams were tried together.^[2] Hicks was found guilty of the July 29, 2002, carjacking of Hernandez ( 215, subd. (a)) and unlawfully taking or driving Hernandezs vehicle (Veh. Code,  10851, subd. (a)). The jury found true allegations that Hicks personally used a firearm within the meaning of section 12022.53, subdivision (b), during commission of the carjacking.^[3]Hicks admitted serving one prior prison term within the meaning of section 667.5, subdivision (b). The trial court sentenced Hicks to a term of 10 years in prison, as follows. On count 5, carjacking, the court imposed the high term of 9 years. On count six, unlawfully driving or taking a vehicle, the court imposed a concurrent term of two years, the midterm. It further imposed a one-year prison term enhancement pursuant to section 667.5, subdivision (b), as well as a restitution fine and a suspended parole revocation fine.

Hicks appealed. As noted, in a nonpublished opinion we affirmed Hickss convictions and ordered his sentence modified to impose a 10-year section 12022.53, subdivision (b) firearm enhancement. (People v. Hicks, supra, B178886, Nov. 3, 2005.) On February 20, 2007, the United States Supreme Court vacated the judgment and remanded to us for further consideration in light of Cunningham v. California, supra, 127 S.Ct. 856.

DISCUSSION

1. The evidence was sufficient to prove identity.

Hicks argues the evidence was insufficient, in that the People failed to prove he was one of the persons who carjacked Hernandez and unlawfully took Hernandezs vehicle. We are unpersuaded.

When determining whether the evidence was sufficient to sustain a conviction, our role on appeal is a limited one. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) [T]he test of whether evidence is sufficient to support a conviction is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citations.] (People v. Holt (1997) 15 Cal.4th 619, 667.) We draw all reasonable inferences in support of the judgment. (People v. Wader (1993) 5 Cal.4th 610, 640.) Reversal is not warranted unless it appears that  upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].  [Citation.] (People v. Bolin (1998) 18 Cal.4th 297, 331.)

Here, the evidence was clearly sufficient. Hernandez, the victim, identified Hicks in court. He was a hundred percent positive Hicks was the perpetrator who demanded his keys. The uncorroborated testimony of a single witness may provide substantial evidence to prove any fact. (Evid. Code,  411; In re Gustavo M. (1989) 214 Cal.App.3d 1485, 1497.) In the instant case, there is in the record the inescapable fact of in-court eyewitness identification. That alone is sufficient to sustain the conviction. [Citation.] (In re Gustavo M., supra, at p. 1497.) Where an eyewitness identification is believed by the jury, that determination is binding on the reviewing court. (Ibid.)

Moreover, Hickss fingerprints were found on the vans exterior in several places: the right front door, the front passenger door frame, the right front window glass, the right side hood area, the back door near the license plate, and the back door. His fingerprints were found inside the van on the right front passenger door frame. Fingerprint evidence has long been considered among the strongest evidence of identity. (People v. Powers (1984) 151 Cal.App.3d 905, 910; People v. Gardner (1969) 71 Cal.2d 843, 849.) Jacksons testimony also proved Hicks was driving the stolen minivan within a few hours after it was taken. Additionally, Hicks and Williams used the minivan as their escape vehicle after the Cervantes shooting. It was a reasonable inference that Hicks was one of the two men who had committed the carjacking earlier in the evening.

Hicks points to evidence that he contends undercuts the value of the in-court identification. In particular, he points out that Hernandez described both assailants as being approximately 5 6 tall, but in fact the parties stipulated that Hicks was 61 tall; Hernandez failed to identify Hicks in a pretrial photographic lineup; and Hernandez failed to identify Hicks, and instead tentatively identified another individual, in a pretrial live lineup. But purported weaknesses in identification testimony must be evaluated by the jury, not this court. (People v. Keltie (1983) 148 Cal.App.3d 773, 781-782.) If not inherently incredible, the testimony of a single witness is sufficient to support a verdict. (Ibid.; People v. Young (2005) 34 Cal.4th 1149, 1181.) The fact Hernandez failed to identify Hicks previously does not render his in-court identification inherently incredible. Moreover, in order to sustain a conviction, an identification of the accused need not necessarily be made positively or in a manner free from all inconsistencies. It is the function of the jury to pass upon the strength or weakness of the identification and the uncertainties of the witnesses in giving their testimony. [Citation.] (People v. Hawkins (1968) 268 Cal.App.2d 99, 102-104; People v. Samaniego (1968) 263 Cal.App.2d 804, 812.)

Finally, Hicks argues that because there was a gap in time between the carjacking and his drive to Jack-in-the-Box, it was just as likely he entered the minivan -- and left his fingerprints -- in the hours after it was stolen, not during the carjacking. This argument, however, amounts to nothing more than a request that we reweigh the evidence on appeal. This is not the function of an appellate court. (People v. Young, supra, 34 Cal.4th at p. 1181; People v. Maury (2003) 30 Cal.4th 342, 403; People v. Ceja (1993) 4 Cal.4th 1134, 1138-1139.) We conclude the evidence was sufficient to support the verdicts.

2. Sentencing issues.

a. Cunningham error.

As noted, the trial court imposed the upper term of nine years for the carjacking. It stated it was imposing the upper term because Hicks had suffered a prior conviction for conspiracy to commit an assault with a deadly weapon. Within one year of his release, he committed the instant crime. The trial court further observed that the evidence showed the carjacking involved sophisticated planning, and the acts were vicious. Therefore, the trial court found that aggravating factors certainly outweigh[ ] the mitigating factors, and that defendant deserves high term.

Hicks contends that, because the trial court imposed the upper term based on facts that were neither admitted nor found true by the jury, imposition of the upper term violated his Sixth and Fourteenth Amendment rights to a jury trial (Cunningham v. California, supra, 127 S.Ct. 856; Blakely v. Washington (2004) 542 U.S. 296; Apprendi v. New Jersey(2000) 530 U.S. 466.) We agree.

As a preliminary matter, we reject the Peoples contention that Hicks has waived this contention by failing to object on constitutional grounds at sentencing. The question was recently decided adversely to the People in People v. Black (2007) 41 Cal.4th 799, 810-812 and People v. Sandoval (2007) 41 Cal.4th 825, 837. Hicks was sentenced on July 14, 2003, prior to the United States Supreme Courts decisions in both Blakely and Cunningham. The rule of forfeiture does not apply when the pertinent law changed so unforeseeably that it would be unreasonable to expect trial counsel to have anticipated the change. (People v. Black, supra, 41 Cal.4th at p. 810.) Prior to Blakely, it was widely assumed that for the purposes of the rule established in Apprendi, the maximum term authorized by the jurys verdict was the upper term. (People v. Black, supra, at p. 811.) Thus, where the sentencing proceeding preceded Blakely, a claim of sentencing error premised upon the principles established in Blakely and Cunningham is not forfeited on appeal by counsels failure to object at trial. (People v. Black, supra, at p. 812; see also People v. Sandoval, supra, 41 Cal.4th at p. 837, fn. 4.) Therefore, Hickss challenge to his sentence has not been forfeited.

We turn to the merits of Hickss claim. In Apprendi v. New Jersey, supra,
530 U.S. 466, 490, the United States Supreme Court held that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be tried to a jury and proved beyond a reasonable doubt. In Cunningham, the Court held that Californias determinate sentencing law violated a defendants federal constitutional right to a jury trial under the Sixth and Fourteenth Amendments by assigning to the trial judge, rather than the jury, the authority to make factual findings that subject a defendant to the possibility of an upper term sentence. (Cunningham v. California, supra, 127 S.Ct. 871; People v. Black, supra, 41 Cal.4th at pp. 805, 808-809; People v. Sandoval, supra, 41 Cal.4th at pp. 831-832.)

However, imposition of an upper term sentence does not infringe upon the defendants constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendants record of prior convictions. (People v. Black, supra, 41 Cal.4th at p. 816.) Under California law, the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for imposition of the upper term. (People v. Black, supra, at p. 813; People v. Osband (1996) 13 Cal.4th 622, 728.) Therefore, [a]s long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional factfinding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendants right to jury trial. (People v. Black, supra, at p. 812.) In other words, so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury. (People v. Black, supra, at p. 813.)

Here, the trial court relied upon the following aggravating factors: Hicks had suffered a prior conviction for conspiracy and committed the instant crime within one year of his release; the carjacking involved sophisticated planning; and the offense was vicious.

Imposition of an upper term sentence is permissible when based upon the aggravating circumstance of the defendants criminal history. (See People v. Black, supra, 41 Cal.4th at p. 818; People v. Sandoval, supra, 41 Cal.4th at pp. 836-837 [the right to jury trial and the requirement of proof beyond a reasonable doubt do not apply to the aggravating fact of a prior conviction].) However, under California law, the court may not consider as an aggravating factor any fact charged and found true as an enhancement unless it strikes the punishment for that enhancement. (People v. Black, supra, 41 Cal.4th at pp. 808-809; 1170, subd. (b).) In the instant case, Hicks admitted suffering a prior felony and serving a prior prison term. Based on that admission, the trial court imposed a one-year sentence pursuant to section 667.5, subdivision (b), which provides for an additional one-year term for each prior separate prison term served for any felony. ( 667.5, subd. (b).) Thus, because Hickss prior felony conviction was already used to enhance his sentence under section 667.5, subdivision (b), that prior conviction cannot serve as the basis for imposition of an upper term sentence.

The other aggravating circumstances cited by the trial court, i.e., that the crime was vicious and involved sophisticated planning, do not fall within the exceptions to Blakely. Thus, we consider whether the trial courts error was harmless. The denial of the right to a jury trial on aggravating circumstances is reviewed under the harmless error standard set forth in Chapman v. California (1967) 386 U.S. 18, 24. (People v. Sandoval, supra, 41 Cal.3d at p. 838; see Washington v. Recuenco (2006) 548 U.S. ___ [165 L.Ed.2d 466, 126 S.Ct. 2546].) In making this determination, we must determine whether, if the question of the existence of an aggravating circumstance or circumstances had been submitted to the jury, the jurys verdict would have authorized the upper term sentence. (People v. Sandoval, supra, at p. 838.) [I]f a reviewing court concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury, the Sixth Amendment error properly may be found harmless. (Id. at p. 839.) Sandoval observed that, in making this determination, a reviewing court cannot necessarily assume that the record reflects all of the evidence that would have been presented had aggravating circumstances been submitted to the jury. A defendant at trial does not necessarily have the reason or opportunity to challenge the evidence supporting aggravating circumstances unless such a challenge would also have tended to undermine proof of an element of the offense. (Ibid.) Furthermore, to the extent a potential aggravating circumstance at issue in a particular case rests on a somewhat vague or subjective standard, it may be difficult for a reviewing court to conclude with confidence that, had the issue been submitted to the jury, the jury would have assessed the facts in the same manner as did the trial court. (Id. at p. 840.)

We are unable to conclude, applying the Chapman standard, that a jury would unquestionably have found either of these aggravating circumstances true. (People v. Sandoval, supra, 41 Cal.4th at p. 838.) First, while there is evidence from which a jury could conclude Hicks and his accomplice engaged in sophisticated planning, that evidence is hardly overwhelming. Hicks and his accomplice approached the victim as he headed toward his parked car. Hicks, holding a gun, demanded the keys, and he and his accomplice entered the van and drove away when the victim complied. These actions, while possibly showing planning, could also have been undertaken spontaneously, as the opportunity to commit the crime presented itself. Moreover, it is highly unlikely Hicks had either the incentive or opportunity to present evidence related to planning, or the lack thereof, at trial. (See People v. Sandoval, supra, at p. 839.) In the context of this case, the meaning of sophisticated planning is somewhat vague and subjective, and we cannot confidently determine whether a jury would have assessed the facts in the same manner as did the trial court. (See id. at p. 840.)

The same is true as to the other aggravating factor, the viciousness of the crime. In one sense, all carjackings are vicious. However, [a]n aggravating circumstance is a fact that makes the offense distinctively worse than the ordinary. [Citation.] (People v. Black, supra, 41 Cal.4th at p. 817.) Nothing in the evidence suggests this carjacking was especially vicious. The victim was not physically harmed. While a gun was displayed, the victim was not terrorized or abused beyond the force necessary to commit the carjacking.^[4] There was no evidence the assailants drove from the crime scene in an especially dangerous manner. The assailants took the vehicle, but nothing else, from the victim. In short, we cannot conclude beyond a reasonable doubt that a jury would necessarily have found the crime was vicious.

Because Hickss upper term sentence was based upon aggravating factors that were neither admitted nor found true by a jury, and the error was not harmless, the imposition of the upper term on count 5 must be reversed and the case remanded to the trial court for resentencing in a manner consistent with the Sixth Amendment as interpreted in Cunningham.^[5](See People v. Sandoval, supra, 41 Cal.4th at p. 843.)

b. Imposition of a 10-year enhancement pursuant to section 12022.53, subdivision (b).

The jury found Hicks personally used a firearm during commission of the carjacking ( 12022.53, subd. (b).) In our prior unpublished opinion, we noted that the trial court had failed to impose a mandatory section 12022.53, subdivision (b) enhancement. At the Peoples request, we ordered the enhancement imposed. As we observed, imposition of the enhancement is mandatory (People v. Felix (2003)
108 Cal.App.4th 994, 999; People v. Zepeda (2001) 87 Cal.App.4th 1183, 1213) and a section 12022.53 allegation may not be stricken pursuant to section 1385.
( 12022.53, subds. (b), (h).) Because we now order Hickss sentence vacated and the matter remanded for resentencing, the issue is moot and the trial courts original omission may be corrected at resentencing.

DISPOSITION

The sentence is vacated and the matter is remanded for resentencing. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

CROSKEY, Acting P.J.

KITCHING, J.

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^[1] All further undesignated statutory references are to the Penal Code.

^[2] Williams is not a party to this appeal.

^[3] Williams was acquitted of carjacking Hernandez, but was found guilty of unlawfully driving or taking Hernandezs vehicle. Hicks and Williams were also charged with the unrelated July 30, 2002 carjacking and second degree robbery of Mohamed Elreda; Hicks was acquitted of these crimes. Williams was alone charged with the July 29, 2002 premeditated murder of Cervantes and the unrelated July 21, 2002 attempted premeditated murder of Deandre Millender.

^[4] Moreover, on remand, the trial court will be obliged to impose a section 12022.53, subdivision (b) firearm enhancement, see post. Thus, the fact a firearm was used cannot be considered as an aggravating circumstance. ( 1170, subd. (b); People v. Black, supra, 41 Cal.4th at pp. 808-809.)

^[5] At sentencing, the parties appear to have assumed that Hickss only criminal history was his aforementioned conviction for conspiracy, and a misdemeanor conviction for petty theft. The probation report, however, indicates Hicks also suffered several sustained juvenile petitions. On remand, the trial court may, of course, consider Hickss recidivist history consistent with the mandates of Cunningham and section 1170, subdivision (b). We express no opinion on how the trial court should exercise its discretion when resentencing appellant.