P. v. Grimmett
Filed 3/9/07 P. v. Grimmett 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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)
----
THE PEOPLE, Plaintiff and Respondent, v. JANICE GRIMMETT, Defendant and Appellant. | C051593 (Super. Ct. No. 05F05135) |
A jury convicted defendant Janice Grimmett of grand theft and receiving stolen property, and the trial court found that defendant had a prior serious felony conviction, for first degree burglary in 1996, and had served prior prison terms.[1] She was sentenced to state prison for an aggregate term of six years.
On appeal, defendant contends the evidence does not support her conviction for grand theft. The contention is frivolous. However, we shall modify the judgment to correct sentencing error.
FACTS
To deter the theft of construction vehicles and equipment, the Sacramento County Sheriffs Department conducted a bait program on June 7, 2005, by parking an undercover pickup truck across the street from a construction site. A $1,500 generator weighing about 150 pounds was chained and locked into the bed of the pickup truck. A motion-sensing transmitter was put on the generator for tracking purposes, and theft detection paste was applied to the generator, chain, and lock. Upon contact, the paste leaves a yellow stain on a persons skin and clothing. On skin, the paste wipes off but the yellow stain remains visible and is detectable with an ultraviolet light. Less staining occurs when the paste is transferred from a persons skin to clothing or to another persons skin.
About 5:53 a.m. on June 8, 2005, the generator was moved, sending a signal activated by the transmitter. The signal led officers to a residence three or four miles from the bait site. An unoccupied truck (not the bait vehicle) had been backed up into the driveway of the residence. The stolen generator was in the truck bed covered with a tarp.
Defendant and Peter Schuerfeld came out of the residence, got into the truck, and were detained as Schuerfeld started to drive away. Defendant had yellow stains on her jacket, palms, and fingers but no stains on the back of her hand. Schuerfeld also had yellow stains on his clothing and palms but no stains on the back of his hands. The stains on Schuerfeld were darker than those on defendant. Sergeant Kelly Lara, who was one of the detectives assisting the bait program, testified the stains on the suspects hands were consistent with them having gripped the paste-covered handles of the generator. There was no indication that the paste had been transferred from person to person by hand holding, Sergeant Lara opined, [b]ecause if someone holds someones hand, your fingers overlap, and you will have the yellow [stain] on the back of the hand.
A black bag and a black purse were on the floorboard of the truck where defendant had been sitting. In the purse were an organizer with defendants nickname, Necie, and three checkbooks, one of which belonged to Ronald Terry who had reported it stolen during the first week of June 2005. Defendant claimed that the bag and purse were not hers and that the officers had placed some of her items into the purse.
A toolbox containing metal cutters was in the truck bed with the generator under the tarp. This was significant because the lock securing the generator to the bait vehicle had been cut.
Defendant told investigating officers that Schuerfeld picked her up to go to a casino but first took her to his house because he wanted to change clothes and that they were arrested when they left the house. She then changed her story and said that after he picked her up, Schuerfeld stopped to pick up the generator. Defendant denied helping him move or steal it. According to her, the yellow stains on her hands were probably put there when she held hands with Schuerfeld.
Schuerfeld, who had pled guilty to grand theft of the generator, testified as follows on behalf of defendant, who was his girlfriend: Defendant had nothing to do with stealing the generator; Schuerfeld had just picked her up to go get something to eat. When he saw the generator in the pickup truck, he stopped, broke the lock, and moved it into his truck. Defendant did not help him, and he did not tell her what he was doing. In moving the generator in the rain, his hands got wet and smeared with an oily substance. He wiped them off on some napkins on the floorboard of his truck. When he got home, he went inside but defendant did not. When he returned to the truck, he noticed that the napkins were gone. Schuerfeld testified the bag belonged to defendant but he did not recognize the purse.
DISCUSSION
I
Defendant was prosecuted on the theory that she aided and abetted Schuerfeld in stealing the generator. Her contention that the evidence was insufficient to support her conviction is frivolous.
All persons concerned in the commission of a crime, . . . whether they directly commit the act constituting the offense, or aid and abet in its commission, . . . are principals in any crime so committed. ([Pen. Code,] 31.) Accordingly, an aider and abettor shares the guilt of the actual perpetrator. [Citation.] The mental state necessary for conviction as an aider and abettor, however, is different from the mental state necessary for conviction as the actual perpetrator. [] The actual perpetrator must have whatever mental state is required for each crime charged . . . . An aider and abettor, on the other hand, must act with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense. [Citation.] (People v. Mendoza (1998) 18 Cal.4th 1114, 1122-1123.)
In assessing the evidentiary support for the jurys finding that defendant aided and abetted Schuerfeld in the theft of the generator, we view the evidence in the light most favorable to the verdict and presume the existence of every fact the jurors could reasonably deduce from the evidence. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
Defendant was arrested soon after the theft of the generator. She was with Schuerfeld in his truck, and the generator was in the truck bed covered by a tarp. The evidence showed that the generator was too heavy and cumbersome for one person to lift. This undermined Schuerfelds claim that he alone transferred the generator from the bait vehicle to his truck. The fact defendant had yellow detection paste on her hands and jacket showed she had touched the generator, undoubtedly in helping Schuerfeld move it to his truck. Defendants claim that the paste must have been transferred to her when she held Schuerfelds hand was discredited by the fact that there was no paste on the backs of their hands, as would have been the case if they held hands. Indeed, Schuerfeld never claimed he held defendants hand. He testified instead he wiped his wet yellow-stained hands on paper napkins found in the truck. Moreover, their versions of the events lacked credibility because they changed and conflicted. Defendant initially claimed that Schuerfeld picked her up to go to a casino but they first went to his house so he could change clothes and were arrested when they returned to the truck. She then changed her story and admitted that after Schuerfeld picked her up, he stopped to take the generator. Schuerfeld initially told an officer at the scene that Schuerfeld had just picked up defendant, suggesting she was not present when he stole the generator. At trial, Schuerfeld testified that he picked defendant up prior to stealing the generator but that she did not help him take it. According to him, he picked her up to get some food. He did not dispute telling a defense investigator that the plan was to go to a fast food restaurant on Madison Avenue or Fair Oaks Boulevard (at trial Schuerfeld indicated it was an Arbys, not a Wendys, restaurant). In contrast, defendant had told an officer that she and Schuerfeld were going to a casino.
All of this evidence was sufficient to lead a reasonable jury to conclude that when they stopped at the bait vehicle, defendant helped Schuerfeld move the generator to his truck after he broke the lock that secured the generator to the bait vehicle and, thus, that defendant had knowledge of Schuerfelds intent to steal the generator and intentionally aided and abetted him in doing so.
II
Although not raised by the parties, we have discovered errors regarding the prior prison term enhancements. (Pen. Code, 667.5, subd. (b); further section references are to the Penal Code.)
The amended information alleged that defendant had served separate prison terms for six prior felony convictions, one of which was a serious felony conviction for purposes of the three strikes law. However, during the trial on those allegations, the People acknowledged that because the first four prior prison terms were imposed at the same time, they should be one prison prior for purposes of section 667.5, subdivision (b). Nonetheless, the trial court found all six prior, separate prison term allegations to be true, expressing the erroneous belief the court could simply stay the sentences for the overlapping prison terms. (People v. Langston (2004) 33 Cal.4th 1237, 1241 [the trial court may not stay the one-year enhancement, which is mandatory unless stricken].)
At the subsequent sentencing hearing, the trial court used the first prior conviction and prison term allegation to double, pursuant to the three strikes law, the middle term imposed for the grand theft conviction, but the court did not impose the one-year enhancement pursuant to section 667.5, subdivision (b). The court then stayed sentencing on the second through fourth prior prison term allegations, pursuant to section 654, because those prison terms were imposed on the same date along with Prior Number One . . . . Sentences of one year each were imposed for the fifth and sixth prior prison term allegations, to be served consecutively to the four-year term imposed for the grand theft conviction. Consequently, the abstract of judgment reflects that one-year terms were imposed for two prior prison term allegations and sentencing was stayed for three prior prison term allegations.
Courts have consistently recognized that . . . only one [prior prison term] enhancement [pursuant to Penal Code section 667.5, subdivision (b)] is proper where concurrent sentences have been imposed in two or more prior felony cases. (People v. Jones (1998) 63 Cal.App.4th 744, 747.) This is so because to support the prior prison term enhancement, the term must have been a separate prison term. (Pen. Code, 667.5, subd. (b); People v. Langston, supra, 33 Cal.4th at p. 1241 [to qualify for the enhancement, the prior prison terms must have been served separately].) Therefore, because the prison terms imposed for the first four convictions alleged in the amended information were imposed and served at the same time, there was only one prior prison term within the meaning of the statute. We shall modify the judgment by reversing the true findings on the second through fourth prior prison term enhancement allegations.
When a prior prison term allegation is found true within the meaning of section 667.5, subdivision (b), the trial court must impose, or in its discretion strike, the one-year enhancement. (People v. Langston, supra, 33 Cal.4th at p. 1241.) Here, the court did not impose an enhancement on the basis of the prison terms served for the first four convictions alleged in the amended information, nor did the court explicitly exercise its discretion to strike the prison term allegation in furtherance of justice. ( 1385, subd. (a).)
Because the district attorneys office raised no objection at the time of sentencing and did not file a notice of appeal, we shall deem the trial court to have exercised its discretion and stricken the prior prison term allegation related to the first four convictions alleged in the amended information. (See People v. Fuhrman (1997) 16 Cal.4th 930, 945-946; but see Gov. Code, 68081.)
DISPOSITION
The trial courts true findings as to the separate prison term enhancement allegations relating to the second through fourth prior convictions alleged in the amended information are reversed, and the judgment is modified to deem that the court exercised its discretion to strike the separate prison term allegation relating to the first prior conviction alleged in the amended information. As modified, the judgment is affirmed. The trial court is directed to amend the abstract of judgment to delete the references to three enhancements having been imposed and stayed for three of the prior prison term allegations, thus reflecting that one-year terms were imposed for only two prior prison term enhancements, each to run consecutively to the terms imposed for grand theft and receiving stolen property. The trial court is further directed to send a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
SCOTLAND, P.J.
We concur:
MORRISON , J.
ROBIE , J.
Publication courtesy of California free legal advice.
Analysis and review provided by Carlsbad Property line attorney.
[1] Even though the trial court established at the outset that defendants true name is Janice Grimmett, the parties referred to her throughout the trial as Janetta Sullivan; and the notice of appeal was filed with that alias.
