P. v. Enos

Filed 10/24/06 P. v. Enos CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION SIX

Anthony Neopolani Enos appeals from the judgment entered after a jury convicted him of possession of a firearm by a felon (Pen. Code^[1], § 12021, subd. (a)(1)) and three counts of carjacking (§ 215, subd. (a)). The jury also found true the allegation that Enos personally used a firearm in committing the carjackings (§ 12022.53, subd. (b)), and Enos admitted he had served seven prior prison terms (§ 667.5, subd. (b)). He was sentenced to a total state prison term of twenty-four years, consisting of the high term of nine years on one of the carjacking counts as the principal term, plus ten years for the firearm enhancement; plus one year eight months (one-third of the mid term) and three years four months (one-third of the ten-year firearm enhancement) on another carjacking count. Sentencing on the remaining carjacking count and the firearm possession count was stayed pursuant to section 654, and the section 667.5, subdivision (b) enhancements were ordered stricken. The trial court awarded him a total of 969 days presentence custody credit, consisting of 843 days actual custody credit, plus 126 days good time/work time credit. He contends that his trial attorney provided constitutionally ineffective assistance of counsel by failing to pursue a claim-of-right defense on the carjacking charges, and that the court committed various sentencing errors. We shall order the abstract of judgment modified to reflect the proper presentence custody credits, and to delete reference to the stricken section 667.5, subdivision (b) enhancements. Otherwise, we affirm.

FACTS AND PROCEDURAL HISTORY

On September 6, 2003, Enos approached a black Mustang convertible stopped at an intersection on Imperial Highway, pointed a shotgun or rifle at its three occupants, 18-year-old driver Aaron McPhetridge, his mother Sharon McPhetridge, and his friend Ryan Meek, and said, "Get out of the car, bitch." Sharon recognized Enos as the boyfriend of her babysitter, Linda Dominguez, who had been driving the Mustang for the past few weeks and had given them permission to drive it to the store. After Aaron and Ryan got out of the car, Enos got into the driver's seat, reached across Sharon as she was seated in the front passenger seat, and opened the door. After Sharon got out, Enos made a U-turn in the car and yelled that he would "kill us all" if Sharon did not "get Linda out of my house" and also threatened to kill her and her children and "blow up" and "shoot up" her house.

Dee Keegan, who was driving down Imperial Highway at the time of the incident, testified that she had seen a small grey hatchback driving somewhat erratically shortly before the incident, then saw the car stopped in a left turn lane along with the Mustang. She then observed Enos standing at the driver's door with a shotgun or rifle pointed at the driver's head. As soon as she could, Keegan made a U-turn and parked at a nearby gas station. Sharon, Aaron and Ryan approached Keegan and were visibly upset. According to Keegan, Enos drove up in the Mustang, accompanied by another individual who was driving the grey hatchback she had seen earlier, and said, "I'll shoot you and your whole fucking family." After Enos and the driver of the grey hatchback drove away, Sharon accepted Keegan's offer for a ride. Aaron and Ryan declined, then ran away. Immediately after she drove Sharon home, Keegan went to the sheriff's station and reported that she had witnessed a carjacking, and gave the police the Mustang's license plate number.

Approximately 30 minutes after Sharon got home, Enos called her and told her that the Mustang was stolen. According to Sharon, neither she nor Aaron, who had just been released from juvenile custody, were aware of this. Sharon also testified that she did not immediately go to the police because she wanted to talk to Dominguez about it first. Later that night, the police came to Sharon's house and she told them that "Anthony" had committed the carjacking. Sharon's nine-year-old son took the responding officer to a nearby house where Sharon thought Enos lived, but Enos was not there.

After the police were able to determine that Enos was the individual Sharon was referring to, Enos's current address was ascertained and his photograph was placed in a six-pack lineup. Keegan identified Enos as "resembl[ing the] guy with [the] gun." Sharon also identified Enos as the carjacker from the same lineup.

On October 2, 2003, Enos was apprehended after a truck in which he was a passenger was stopped for erratic driving. As one of the officers shone a flashlight on the interior of the truck's cab, he saw Enos reach behind him for what appeared to be a shotgun and a gun case. After Enos complied with the officer's order to get out of the vehicle, a loaded shotgun and a loaded revolver were recovered from the truck. Sharon and Keegan identified a photograph of the shotgun as the weapon used in the carjacking.

Enos admitted at trial that he had participated in the carjacking, but provided a different version of the events. According to Enos, Dominguez, who was merely a friend, had assisted her boyfriend and another individual in carjacking the Mustang from Enos's friend, Alejandro Ruiz. Enos testified that Ruiz was pistol whipped to the point that he required hospitalization. Enos purportedly learned this from Ruiz after he was released from the hospital on September 3, and Ruiz asked Enos to get his car back for him. Enos also admitted that he knew Sharon, whom he labeled a "tweaker," and had done construction work on her house one weekend.

According to Enos, the day after he spoke to Ruiz he saw the Mustang while he was driving to the market in his Escalade. Enos, along with an individual he identified as a "family member" whose name he purportedly could not recall, got out of the Escalade. Four people in a grey station wagon who were traveling to the market with Enos also got out of their car. One of the individuals from the station wagon had a shotgun and threw it to Enos. After he held it for 20 to 30 seconds, he threw it to someone else who was standing at the driver's door of the Mustang. When confronted with the fact that he was barred from possessing a firearm because he was a convicted felon, he responded, it had "slipped my mind." After Sharon, Aaron and Ryan exited the Mustang, Enos got in the passenger seat while his "twin" drove for about 15 seconds. Enos then exited the Mustang, returned to his Escalade, and drove away. Enos admitted that he had seven previous convictions, and that one of them was a felony.

After the jury found Enos guilty of all charges, he replaced his public defender with private counsel who filed a motion for new trial alleging ineffective assistance of counsel. In support of the motion, counsel called Alex Ruiz, who testified that he had told Enos that his black Mustang had been carjacked from him and asked if Enos would "help me try to get my car back." Ruiz also asserted that he had reported the carjacking to the police, although no police report was produced. Enos's public defender, Patrick Brown, was also called to testify, but he had no independent recollection of the case and was not provided with any documents to refresh his memory.

DISCUSSION

I.

Ineffective Assistance of Counsel

Enos contends, as he did in his motion for new trial, that his trial attorney provided constitutionally ineffective assistance by failing to present a claim-of-right defense to the carjacking charges. Specifically, he argues that counsel should have called Ruiz to testify, which would have obviated the need for Enos to testify, and failed to argue the defense to the jury. He also faults counsel for failing to object to the giving of the standard motive instruction (CALJIC No. 2.51) to the extent it allows the jury to consider Enos's motive as evidence of his guilt.

To prevail on his claim, Enos must show that counsel's performance was objectively deficient and that such deficiency prejudiced him. (Strickland v. Washington (1984) 466 U.S. 668, 687.) Enos cannot make such a showing. Neither his testimony at trial nor that of Ruiz on the motion for new trial is sufficient to establish a "claim of right" to the Mustang. (People v. Montoya (2004) 33 Cal.4th 1031, 1035, fn. 3 [declining to decide whether the claim of right defense applies to carjacking].) The claim-of-right defense negates the specific intent element of robbery only "where the defendant can establish that he is taking back specific property to which he has lawful title or a bona fide claim of ownership." (People v. Tufunga (1999) 21 Cal.4th 935, 948, italics added.) It is undisputed that Enos made no such claim. On the contrary, he purported to recover the Mustang on behalf of someone else. Under the circumstances, he had no valid claim-of-right defense to the carjacking charges.^[2] Moreover, because Enos had no legitimate claim of right to the Mustang, the jury was properly instructed that it could consider his motive as evidence of his guilt.

To the extent Enos argues that his attorney provided ineffective assistance in calling him to testify, the record does not establish that it was counsel's decision for Enos to testify, much less whether counsel had legitimate tactical reasons for calling him. Although Enos argues as he did in his new trial motion that Ruiz would have testified to essentially the same facts and would have been a more credible witness, no showing has been made that Ruiz was willing to testify at trial. In addition, readily available documentary evidence establishing that Ruiz actually owned the Mustang and that he had reported it stolen was never presented. In any event, as we have already explained, the proffered evidence, even if true, would have been insufficient as a matter of law to support a claim-of-right defense. Moreover, Enos's testimony established that he committed the charged crimes.

Enos also claims that trial counsel committed per se reversible error, as contemplated by United States v. Cronic (1984) 466 U.S. 648, and its progeny, by effectively conceding his guilt on the carjacking charges during closing argument. The record indicates, however, that while counsel did correctly concede that there was no issue whether Enos was present or had a legitimate right to take the car, the evidence was insufficient to establish beyond a reasonable doubt that he possessed or used the shotgun to assist him in that taking. In support of that argument, counsel challenged the witness identifications of Enos as the gunman. Given Enos's concession that he participated in the crime, counsel did not err in "candidly recogniz[ing] the weaknesses in the defense in closing argument." (People v. Jones (1991) 53 Cal.3d 1115, 1150.) Under the circumstances, there is no basis to conclude that Enos's attorney "entirely fail[ed] to subject the prosecution's case to meaningful adversarial testing, [such that] there has been a denial of Sixth Amendment rights" regardless of any showing of prejudice. (Cronic, supra, at p. 659.)

II.

Alleged Sentencing Errors

A. Imposition of the Upper Term

Enos argues that the trial court violated Blakely v. Washington (2004) 542 U.S. 296, by relying on aggravating factors that were not decided by the jury in imposing the upper term on the primary carjacking charge. He also contends the court abused its discretion in imposing that term, and in ordering a consecutive sentence on one of the remaining carjacking counts and firearm enhancement. None of these claims has merit.

First, Enos forfeited his right to assert any Blakely error because that decision, which was issued before the trial began in this case, was never raised below. (People v. Saunders (1993) 5 Cal.4th 580, 589-590 & fn. 6; People v. Hill (2005) 131 Cal.App.4th 1089, 1103.) In any event, our Supreme Court has concluded that the "judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence or consecutive terms under California law does not implicate a defendant's Sixth Amendment right to a jury trial" as contemplated by Blakely. (People v. Black (2005) 35 Cal.4th 1238, 1244.)

We also reject Enos's claim that the court abused its discretion in imposing the upper term and consecutive sentences. Because counsel did not object to these sentences below, his claim that the court did not articulate the basis for its discretionary sentencing choices is not cognizable on appeal. (See People v. Scott (1994) 9 Cal.4th 331, 353-354.) Moreover, we must presume that the court exercised its discretion to achieve legitimate sentencing objectives and Enos fails to show that the court's sentencing decisions were irrational or arbitrary. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.)

Regarding imposition of the upper term on the primary carjacking charge, the court relied on the facts that Enos's prior convictions were numerous and of increasing seriousness, and that Enos was on parole at the time of his current crimes. These facts were properly considered as aggravating factors (Cal. Rules of Court, rules 4.421(b)(2) &(4)), and each was sufficient by itself to warrant the imposition of the upper term on the primary carjacking count (People v. Osband (1996) 13 Cal.4th 622, 732). Similarly, the court was not precluded to consider the fact that there were multiple victims as an aggravating factor supporting the imposition of a consecutive term (People v. Valenzuela (1995) 40 Cal.App.4th 358, 363), and Enos fails to persuade that it was inappropriate for the court to rely on that fact for that purpose. Accordingly, Enos's challenges to his upper term and consecutive sentences fail.

III.

Errors in the Abstract of Judgment

Enos contends, and the People agree, that the abstract of judgment erroneously refers to the section 667.5, subdivision (b) enhancements that were stricken. The People also agree with Enos that his presentence custody credits were incorrectly calculated, and that he is entitled to 855 days actual custody credit and 128 days good time/work time credit. Although the People urge us to reject the presentence custody credit claim on the ground that it was never presented below (§ 1237.1), Enos was not required to raise the issue in the trial court because he asserted it on appeal along with other claims of error. (People v. Acosta (1996) 48 Cal.App.4th 411, 420-423.) Accordingly, we shall order the abstract of judgment amended to delete any reference to the stricken enhancements, and to reflect the proper presentence custody credits.

DISPOSITION

The abstract of judgment is modified to omit reference to the section 667.5, subdivision (b) enhancements, and to reflect a total of 983 days of presentence credits, consisting of 855 days of actual custody credit and 128 days of good time/work time credit. The clerk of the superior court is ordered to prepare and forward an amended abstract of judgment to the Department of Corrections. As so modified, the judgment is affirmed.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

YEGAN, Acting P.J.

COFFEE, J.

Michael A. Cowell, Judge

Superior Court County of Los Angeles

______________________________

Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Chung L. Mar, Supervising Deputy Attorney General, Corey J. Robins, Deputy Attorney General, for Plaintiff and Respondent.

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^[1] Statutory references are to the Penal Code, unless otherwise noted.

^[2] In concluding that the crime of unlawful taking of a vehicle is not a lesser included offense of carjacking, the Supreme Court implicitly rejected Enos's claim by way of an example that is remarkably similar to Enos's testimony: "Joe knows that his neighbor Mary's car has been stolen and that she is offering a reward for its return. If Joe spots an unfamiliar person driving Mary's car and orders that person out at gunpoint and then drives off, intending to return the car to Mary and secure the reward, he would be guilty of carjacking but not of an unlawful taking of a vehicle. Although Joe had the intent to deprive the driver of possession, as required for carjacking (§ 215), he lacked the intent to deprive the owner of title or possession, as required for unlawful taking of a vehicle (Veh. Code, § 10851)." (People v. Montoya, supra, at p. 1035, fn. omitted.)