P. v. Mehara

Filed 8/15/06 P. v. Mehara CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

I. INTRODUCTION

Defendant and appellant Santos Mehrara was convicted of assault on a peace officer (Pen. Code, § 241, subd. (b))^[1], battery causing serious bodily injury (section 243, subd. (d), with an allegation of use of a deadly weapon under section 12022, subdivision (b)(1). He was also convicted of carjacking in violation of section 215 with allegations of great bodily injury within the meaning of section 12022.7, subdivision (a), and section 1192.7, subdivision (c)(11), and with use of a deadly weapon under section 12022, subdivision (b)(1) ,and hit and run resulting in serious bodily injury (Veh. Code, § 20001, subd. (a), (b)(2)). Defendant was sentenced to a term of eight years, consisting of five years for the midterm for the carjacking and three additional years for great bodily injury, with the sentences for the remaining counts stayed under section 654.

On appeal, defendant argues that (1) the trial court abused its discretion in denying his new trial motion on the grounds of juror misconduct after it was discovered that a juror had read two letters that had not been admitted into evidence; (2) his attorney provided ineffective assistance of counsel in handling this issue; (3) the trial court erred in denying his motion to strike his conviction for battery causing serious bodily as a lesser included offense of carjacking; (4) his attorney was ineffective for failing to raise federal constitutional objections to the lesser included offense.

Finding no error, we affirm.

II. FACTUAL AND PROCEDURAL B ACKGROUND

On June 2, 2004, shortly before midnight, a resident of a second floor apartment on Geary and 22nd Avenue in San Francisco heard the sound of a loud crash outside his building. He looked out a window and saw a dark Nissan Sentra had crashed into a parked Mercedes. The accident caused substantial front end damage to both cars. The man looking out the window saw the driver of the Nissan shift into reverse and take off. The driver was male, had short hair and was either Asian or Hispanic.

An hour or so later, on June 3, 2004, between midnight and 12:30 a.m., a San Francisco Police Officer named Candette Hilder was dispatched to Fulton and 12th Avenue in San Francisco to tow a black Sentra with front end damage that appeared to have been involved in a hit and run accident an hour earlier. Officer Hilder was in full uniform. She parked her marked patrol car about a car length behind the Sentra and slightly out into the lane of traffic. She did so for her own safety. She turned on her patrol car's flashing yellow light bar, aimed her spot lights on the Sentra, then took possession of it and radioed for a tow truck.

The tow truck arrived about twenty minutes later. It was driven by Louie Morales. Morales parked his tow truck about ten or fifteen feet in front of the Sentra.

Defendant arrived on the scene shortly after the tow truck. He walked between the rear of the Sentra and the front of Officer Hilder's patrol car. Officer Hilder made eye contact with him and got out of the patrol car to talk to him. Defendant and Officer Hilder were about two or two and a half feet away when they spoke. The lights of the patrol vehicle, street lights and the flood lights from the tow truck illuminated the scene. Officer Hilder described defendant as about six feet tall and weighing between 180 and 190 pounds.

Morales was preparing to tow the Sentra. Defendant asked if the Sentra had to be towed. Officer Hilder told him it was much too late, because it had been involved in a hit and run accident and had to be towed. When asked if it was his car, defendant responded that the car belonged to his girlfriend and she wanted him to drive it home for her. Defendant was unhappy and tried to convince Officer Hilder to let him take the car. While this conversation was going on, Morales was preparing to hook the Sentra to his tow truck.

Defendant said that everything he owned was in the Sentra and that he really needed these things. He then opened the driver's door of the Sentra and got in. Officer Hilder demanded that defendant get out of the car. Defendant did not comply. She requested another patrol unit and continued to demand that defendant get out of the Sentra.

While this was taking place, Officer Hilder was about one and a half feet away from defendant. She was standing inside the open driver's door of the Sentra. Defendant started the engine, shifted the car into reverse and backed up. Officer Hilder grabbed the door, and was dragged backwards. Her head hit the push bar of her patrol vehicle and she lost consciousness.

Morales shouted at defendant to stop, but he drove off. Within minutes patrol units arrived to assist Officer Hilder.

Officers Wu and Cheung were first on the scene. They found Officer Hilder lying on the ground with blood around her head. They observed a piece of her scalp sticking to the push bar of her patrol car. Officer Hilder appeared to be drifting in and out of consciousness. She recalled telling Officer Wu that the suspect was six feet tall. Officer Wu believed that she said the suspect was five feet six inches tall. Officer Cheung put Officer Wu's information in his report.

Another officer, Officer Reich, responded to the request for help and, as he drove toward the scene, came across a small, dark car with its lights off that drove past him at a high rate of speed. He followed the car, lost sight of it and then came across the place where it had crashed into a tree on the median. The suspect, described by Officer Reich as a light-skinned man with a mustache, most likely Latino, was not at the scene.

Police officers searched the Sentra. They recovered from it numerous items belonging to defendant: his birth certificate, social security card, social security records, DMV records, driver's license, federal student aid program documents, PIN documents from several colleges, Greyhound bus ticket, high school diploma, books, cards and envelopes, stickers with his name and his girlfriend's name on them and a heart in between, a baseball cap, toothbrush, electric shaver, nail clipper, and court-related documents specific to defendant.

The registered owner of the black Sentra was a woman named Maritza Arana. She testified that defendant was her boyfriend. She had loaned him the Sentra, thinking he would buy it from her. When he did not, she took it back. On the evening of June 2, they got into an argument and she parked the Sentra on the street. Defendant knew that the keys were under the driver's floor mat and the rear door was unlocked. She did not see defendant or the car again for several days.

As a result of defendant's actions, Officer Hilder sustained an eight centimeter laceration to her head, and lacerations and abrasions to her body and legs. She was unable to move her neck or put any weight on her right ankle. She could not drive or be on her leg for long. She had physical therapy for her neck, wore a neck brace and walked with a cane. She was unable to return to work for three months, and when she finally did return, it was on light duty. At the time of trial, seven months after the incident, she had permanent injuries to her neck, right ankle and a scar on her scalp. She was in pain at the time, limped, and was unable to work out at the gym for more than ten minutes. She continued to be on light duty which was not what she had joined the police force to do.

Both Morales (the tow truck driver), and Officer Hilder identified defendant as the person who injured Officer Hilder. Morales was presented with a six photo lineup by San Francisco Police Inspector Serujo. Morales identified defendant's photo as most like the suspect and two other pictures as â€