P. v. Morneau

Filed 10/9/07 P. v. Morneau CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Los Angeles County Superior Court, Tomson T. Ong, Judge. Affirmed.

Bruce G. Finebaum, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec, Supervising Deputy Attorney General, Robert C. Schneider, Deputy Attorney General, for Plaintiff and Respondent.

INTRODUCTION

A City of Long Beach police officer observed defendant Devin Morneau (defendant) driving a vehicle and acting suspiciously. The officer discovered that the license plate on the vehicle was not on file, followed defendants route, and located defendant walking down the street about a half block away from the vehicle he had been driving. The officer detained and arrested defendant, and determined the vehicle he was driving had been reported as stolen.

Defendant was charged with and convicted of one count of unlawful driving or taking of a vehicle, in violation of Vehicle Code section 10851, subdivision (a). Based on, inter alia, defendants criminal record, the trial court imposed the upper term sentence.

On appeal, defendant contends that there was insufficient evidence to support his conviction and that the trial court erred when it imposed the upper term sentence based on aggravating factors that were not found by a jury. We hold that the officers identification of defendant as the driver of the vehicle, together with defendants conduct, were sufficient to support the conviction and that the trial court did not err in imposing the upper term based on defendants criminal record. We therefore affirm the judgment.

FACTUAL BACKGROUND

On the evening of April 30, 2006, Steven Passmores wife parked their 1990 ES 250 Lexus automobile (the Lexus) in front of 792 Gladys in Long Beach. When Passmores wife went to go to work in the morning [the Lexus] wasnt there. Passmore went outside five minutes later and also noticed that the Lexus was gone. Neither Passmore nor his wife had given anyone permission to drive the Lexus. Passmore reported to the police that the Lexus was missing.

Eight days later, on May 8, 2006, Udom Sawaia City of Long Beach Police Officer assigned to the gang enforcement sectionwas patrolling in a solid color gold dual-purpose patrol vehicle with his partner Officer Armando Yearwood. Officer Sawai was driving and Officer Yearwood was in the front passenger seat. The officers were dressed in a manner that clearly identified them as police officers.^[1]

At approximately 6:53 p.m. that evening, while the officers were driving westbound on New York Street toward Atlantic Avenue, Officer Sawai observed defendant driving the Lexus in the opposite direction. Officer Sawai described defendant to Officer Yearwood as a male white wearing a dark baseball cap with wavey brownish/blonde hair with a brown mustache [and] wearing a dark t-shirt.

When Officer Sawai looked at him, defendant kind of glanced quickly at [Officer Sawai] and then made a nervous turn back as if to avoid eye contact with [Officer Sawai]. Defendants conduct aroused suspicion in Officer Sawai, who looked at the front license plate of defendants vehicle and told Officer Yearwood to run it to see if it comes back with warrants or stolen or its wanted for anything. Officer Yearwood ran the plate and told Officer Sawai that [i]t came back no record on file.

Officer Sawai made a u-turn, drove eastbound following the route of defendants vehicle, and observed defendants vehicle make a southbound turn on Myrtle Avenue. Officer Sawai sped up, tried to catch up to [defendants] car, [and] made the same southbound turn [on Myrtle Avenue]. . . . After making the turn, the officers lost sight of defendants car, slowed down, and looked around into driveways to determine if defendant had pulled into a driveway in an effort to hide.

At that point, Officer Sawai saw defendant walking towards him on the west sidewalk of Myrtle Avenue. Defendant was wearing a dark or black baseball cap and had a light mustache and brownish hair. Officer Sawai was a hundred percent sure that defendant was the man he saw driving the Lexus. The officers detained and then arrested defendant.

After the officers detained defendant, they located the Lexus about a half block away from where they detained him. Officer Sawai observed that the plastic portion, the dash portion around the ignition [looked] like [it had] been removed, but the ignition itself look[ed] pretty intact. Defendant did not have a key on his person that fit the ignition, and Officer Sawai could not find any keys on the ground in the vicinity.

PROCEDURAL BACKGROUND

The Los Angeles County District Attorney charged defendant in a one count information with unlawful driving or taking of a vehicle in violation of Vehicle Code section 10851, subdivision (a). The District Attorney alleged that defendant had suffered five prior convictions^[2]within the meaning of Penal Code section 667.5, subdivision (b).^[3] The District Attorney further alleged that defendant had previously been convicted on four separate occasions of violating section 10851, subdivision (a) within the meaning of section 666.5.

Defendant pleaded not guilty. Following a jury trial, defendant was convicted on the charged offense, and the trial court subsequently found the allegations of defendants prior convictions to be true pursuant to section 667.5, subdivision (b). The trial court sentenced defendant to the upper term of four years on Count 1, and imposed an additional, consecutive four-year term pursuant to section 667.5, subdivision (b), for a total sentence of eight years.

DISCUSSION

A. Standard of Review

In assessing a claim of insufficiency of evidence, the reviewing court's task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidencethat is, evidence that is reasonable, credible, and of solid valuesuch that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578 [162 Cal.Rptr. 431, 606 P.2d 738].) The federal standard of review is to the same effect: Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, 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. (Jackson v. Virginia (1979) 443 U.S. 307, 317-320 [99 S.Ct. 2781, 2788-2790, 61 L.Ed.2d 560].) The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. (People v. Stanley (1995) 10 Cal.4th 764, 792 [42 Cal.Rptr.2d 543, 897 P.2d 481].) Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court[,] which must be convinced of the defendant's guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of facts findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. [Citations.] (Id. at pp. 792-793, 42 Cal.Rptr.2d 543, 897 P.2d 481.) (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)

B. Sufficiency of the Evidence

According to defendant, there is no credible evidence that he stole the Lexus or knew the Lexus was stolen. Defendant argues that Officer Sawais identification of defendant as the driver of the Lexus was unreliable because the officer had only a brief opportunity to observe the driver, and there was no other evidence, such as fingerprints or DNA, linking defendant to the Lexus.

Vehicle Codesection 10851, subdivision (a)^[4]provides: Any person who drives or takes a vehicle not his or her own, without the consent of the owner thereof, and with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle, whether with or without intent to steal the vehicle, or any person who is a party or an accessory to or an accomplice in the driving or unauthorized taking or stealing, is guilty of a public offense and, upon conviction thereof, shall be punished by imprisonment in a county jail for not more than one year or in the state prison or by a fine of not more than five thousand dollars ($ 5,000), or by both the fine and imprisonment. (Italics added.)

We have observed that section 10851, [subdivision] (a) proscribes a wide range of conduct. ([People v.] Jaramillo [(1976)] 16 Cal.3d [752,] 757) A person can violate section 10851, subdivision (a) either by taking a vehicle with the intent to steal it or by driving it with the intent only to temporarily deprive its owner of possession (i.e., joyriding). ([People v.] Allen [1999] 21 Cal.4th [846,] 851; accord, People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 205 [96 Cal. Rptr. 2d 463, 999 P.2d 686]; see also People v. Barrick (1982) 33 Cal.3d 115, 135 [187 Cal. Rptr. 716, 654 P.2d 1243] [The acts constituting driving a vehicle and taking a vehicle are separate and distinct]; Jaramillo, supra, 16 Cal.3d at p. 759, fn. 6 [the section prohibits driving as separate and distinct from the act of taking].) (People v. Garza (2005) 35 Cal.4th 866, 876.)

The evidence in this case, if accepted by a reasonable trier of fact, shows that the Lexus had been taken without the Passmoress permission; eight days later, defendant was seen driving the Lexus; he acted suspiciously when he saw the officers; he quickly abandoned the Lexus thereafter; and he was seen walking away from the location of the Lexus. That defendant was driving a recently stolen vehicle with damage around the ignition raises a strong inference that he knew it was stolen, and his conduct after he saw the officers raises an inference concerning consciousness of guilt. Possession of recently stolen property itself raises a strong inference that the possessor knew the property was stolen; only slight corroboration is required to allow for a finding of guilt. (People v. McFarland (1962) 58 Cal.2d 748, 754 [26 Cal. Rptr. 473, 376 P.2d 449] (McFarland).) This principle, applicable to theft offenses, applies as well to the unlawful driving of a vehicle. ([People v.] Green [(1995)] 34 Cal.App.4th [165,] 181.) (People v. ODell (2007) 153 Cal.App.4th 1569, 1574.) The evidence against defendant was reasonable, credible, and of solid value, and it supports a reasonable inference that defendant was driving the Lexus with the intent to deprive the Passmores of possession of the car. We therefore conclude that a rational trier of fact could have found the essential elements of the charged crime beyond a reasonable doubt.

C. Upper Term Sentence

Defendant contends that the trial court relied on facts not found by the jury to impose the upper term sentence in violation of Cunningham v. California (2007) __ U.S. __, 127 S.Ct. 856 (Cunningham). At the sentencing hearing, the trial court explained its reasons for imposing the upper term sentence as follows: There being no other issues and taking a look at thefirst of all, from aggravating versus mitigating circumstances, the first aggravating circumstance this court can find, and its listed in the probation officers report, is that at the time that the defendant committed this crime, . . . was on parole in a difference offense. That he . . . sustained a history of felony convictions, although none of them are strikes, nonetheless theyre felony convictions. Some of them are theft, in the same class of crime as the current crime. [] In addition to thatIm just looking at all these theft crimes that he has had in the history of his probation officers report. Its listed in there. In addition to that though, he took an item, which actually has monetary value. I would consider that to be a great monetary value, a car. . . . Ill also indicate . . . that the defendant served a prior terma prior prison term; . . . the defendant was on parole when the crime was committed and his performance on parole was unsatisfactory.

According to the Supreme Court in Cunningham, supra, 127 S.Ct. 856, the Federal Constitutions jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant. Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002); Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004); United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). (Id. at p. 864, italics added.) The exceptions to a defendants Sixth Amendment rights noted in Cunningham have recently been explained by the California Supreme Court. The United States Supreme Court has recognized two exceptions to a defendants Sixth Amendment right to a jury trial on an aggravating fact that renders him or her eligible for a sentence above the statutory maximum. First, a fact admitted by the defendant may be used to increase his or her sentence beyond the maximum authorized by the jurys verdict. (Blakely, supra, 542 U.S. at p. 303.) Second, 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. (Id. at p. 301; see Apprendi, supra, 530 U.S. at p. 490; Almendarez-Torres v. United States (1998) 523 U.S. 224, 239244 [140 L.Ed.2d 350, 118 S.Ct. 1219].) (People v. Sandoval (2007) 41 Cal.4th 825, 836-837.)

Moreover, under Californias determinate sentencing system, once a trial court properly finds a single aggravating fact, a defendant is eligible for an upper term sentence, meaning the midterm is no longer the maximum sentence the trial court is authorized to impose. [S]o 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. Judicial factfinding in the course of selecting a sentence within the authorized range does not implicate the indictment, jury-trial, and reasonable-doubt components of the Fifth and Sixth Amendments. (Harris v. United States (2002) 536 U.S. 545, 558 [153 L.Ed.2d 524, 122 S.Ct. 2406].) . . . [] The facts upon which the trial court relies in exercising discretion to select among the terms available for a particular offense do not pertain to whether the defendant has a legal right to a lesser sentenceand that makes all the difference insofar as judicial impingement upon the traditional role of the jury is concerned. (Blakely, supra, 542 U.S. at p. 309.) Under Californias determinate sentencing system, the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term. (People v. Osband (1996) 13 Cal.4th 622, 728 [55 Cal. Rptr. 2d 26, 919 P.2d 640].) Therefore, if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not legally entitled to the middle term sentence, and the upper term sentence is the statutory maximum. (People v. Black (2007) 41 Cal.4th 799, 813.)

It is undisputed that defendant had been convicted of at least four prior felonies. Any one of those prior convictions could have been found by the trial court without violating the rule in Cunningham, supra, 127 S.Ct. 856, and would have made him eligible for the upper term sentence. Under Black, supra, 41 Cal.4th 799, once he was eligible for the upper term sentence, the trial court was entitled to consider all of the factors that it did in selecting a sentence within the authorized range. In doing so, the trial court was merely exercising its discretion to select the appropriate term from among those authorized by law, by balancing the aggravating and mitigating circumstances. Thus, the imposition of the upper term for the reasons stated by the trial court did not violate Cunningham.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MOSK, J.

We concur:

ARMSTRONG, Acting P. J.

KRIEGLER, J.

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^[1] Officer Sawai testified that, My partner and I were wearing a raid jacket with Long Beach Police patches on both sides of our shoulders and police―white police word in the back of the raid jacket.

^[2] The People struck the February 4, 1987, conviction prior to trial.

^[3] All further statutory references are to the Penal Code, unless otherwise stated.

^[4] CALCRIM No. 1820 provides in pertinent part: The defendant is charged [in Count __] with unlawfully taking or driving a vehicle [in violation of Vehicle Code section 10851]. [] To prove the defendant is guilty of this crime, the People must prove that: [] 1. The defendant took or drove someone elses vehicle without the owners consent; AND [] 2. When the defendant did so, (he/she) intended to deprive the owner of possession or ownership of the vehicle for any period of time.