Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Los Angeles County No. KA078290, Daniel J. Buckley, Judge. Affirmed as modified with directions.
Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.
JACKSON, J.
INTRODUCTION
Defendant Anthony Daniel Garcia appeals from a judgment of conviction entered after a jury found him guilty of grand theft of an automobile (Pen. Code, § 487, subd. (d)(1); count 1), kidnapping (§ 207, subd. (a); count 2), resisting an executive officer (§ 69; count 5), and transportation of a controlled substance (Health & Saf. Code, § 11379, subd. (a); count 7). The trial court found true the allegations defendant suffered two prior serious felony convictions (§§ 667, subds. (a), (b)-(i), 1170.12) and one prior conviction for which he served a prison term (§ 667.5, subd. (b)). The trial court sentenced him to state prison for an indeterminate term of 50 years to life plus a determinate term of 5 years.
All further statutory references are to the Penal Code, unless otherwise specified.
The jury acquitted defendant of assault with a firearm on a peace officer (§ 245, subd. (d)(1); count 3), false imprisonment by violence (§ 236; count 4), and possession of a firearm by a felon (§ 12021, subd. (a)(1); count 6).
On appeal, defendant challenges the sufficiency of the evidence to support his conviction of grand theft of an automobile and claims the trial court’s instruction as to this crime was erroneous. He also claims sentencing error. We agree there was instructional and sentencing error, requiring that we modify the judgment to reflect a conviction of unlawful taking or driving a vehicle (Veh. Code, § 10851, subd. (a)) on count 1, and that we remand for resentencing.
FACTUAL AND PROCEDURAL BACKGROUND
At around 8:00 p.m. on January 26, 2007, Los Angeles County Deputy Sheriff Jose Nanquil conducted a traffic stop of a black Volvo. The Volvo appeared to be a few years old yet had paper license plates. It had illegally tinted windows and its left brake light was out. Deputy Nanquil noticed that there were at least two people in the car.
When Deputy Nanquil approached the car and asked the driver for her license, she replied that she did not have one but showed an identification card that identified her as Silvahn Torres (Torres). She was the registered owner of the car. While he was speaking with Torres, Deputy Nanquil noticed that the passenger, later identified as defendant, appeared agitated. He kept reaching for some type of bag on the floor, despite warnings from Deputy Nanquil to stop.
Deputy Lawrence Zimmerman then arrived on the scene, allowing Deputy Nanquil to question Torres outside of the car. Deputy Zimmerman stood by the passenger door to keep an eye on defendant. Defendant moved over the center console of the car and into the driver’s seat, and Deputy Nanquil ordered him to stop. When Torres realized that defendant was in the driver’s seat, she began yelling for “the baby”—her daughter, who was in the back seat of the car. The deputies had not previously seen Torres’s daughter because she was small, and the tinting in the back seat was very dark.
Defendant then drove away. Torres ran after the car for about twenty feet and then stopped. Both deputies chased defendant by car. Defendant drove at a very high rate of speed, drove through three or four controlled intersections and ran a red light at the intersection of Nelson and Glendora. He stopped the car near the corner of Central and Stimson, got out of the car, and ran toward two houses. Deputy Zimmerman followed defendant on foot and announced his presence. Because Deputy Zimmerman was in plain clothes at the time, he did not want there to be any confusion as to whether he was actually a sheriff’s deputy. Deputy Zimmerman then looked around the area with his flashlight. He heard a voice warning him to go back and then saw a semiautomatic handgun pointed at him. Because he was not wearing a bulletproof vest, he backed away and attempted to set up a containment with other deputies on the scene. Deputy Zimmerman returned to the Volvo and found Torres’s daughter in the backseat. The daughter identified the man in the car as “Anthony.” Canine units searched the area but could not locate defendant.
Deputy Zimmerman later identified defendant. He put out a law enforcement bulletin the next morning containing defendant’s name and photograph.
On January 30, 2007, Los Angeles County Deputy Sheriff George Meza and his partner, Deputy Kachaon, were riding in a marked patrol car when they saw defendant sitting in the back seat of a Buick SUV. They recognized defendant from the bulletin and tried to make a traffic stop. Though Deputy Meza activated his red lights and siren, the driver of the SUV did not stop. The driver got onto the freeway, where he drove at speeds up to 90 miles per hour and drove on the shoulder in order to get through the traffic.
During the chase, Deputy Meza saw defendant throw several objects out of the SUV window. Some were plastic bags containing an off-white substance that Deputy Meza thought resembled methamphetamine. One of the bags landed on Deputy Meza’s patrol car window and burst into a white cloud. Deputy Meza also saw defendant throw what appeared to be a gun and a glass pipe that could be used for smoking methamphetamine out of the window.
The SUV eventually slowed down in front of a dental clinic. Defendant got out and ran into the clinic. Deputy Meza stopped his car close to the SUV and ran into the clinic. About ten people came running out of the clinic, screaming. Four additional deputies entered the clinic. Deputy Meza saw a woman walking down a hallway with her hands raised. He then heard a male voice say that he would “get crazy” if the deputies did not leave him alone. Someone then grabbed the woman, and she disappeared from view.
Deputy Meza feared that he had a hostage situation, so he sent a rescue team into the clinic. Defendant was in a room with some people who had been in the office, and he informed deputies he would not be coming out. He unsuccessfully attempted to break windows in the room by throwing dental equipment at them. A man in the room grabbed defendant from behind and began to struggle with him. When the deputies heard this, they entered the room. They tackled defendant and were eventually able to overpower him and place him in handcuffs.
Deputy Zimmerman and other deputies attempted to collect the items that defendant had thrown out of the SUV during the pursuit. The deputies found several foil bindles, as well as some off-white substance that was eventually determined to be.95 grams of methamphetamine. Although the deputies did not find a gun, they did find a black magazine with one live round that would fit in a.22 caliber semiautomatic handgun.
DISCUSSION
Sufficient Evidence Supports the Grand Theft of an Automobile Conviction.
Theft is the felonious taking of another person’s property. (§ 484.) The required intent to commit a theft is either to permanently deprive the owner of the property or “to take the property for so extended a period as to deprive the owner of a major portion of its value or enjoyment.” (People v. Avery (2002) 27 Cal.4th 49, 55.) This applies to cases where the property taken is a vehicle. (§ 487, subd. (d)(1); People v. Marquez (2007) 152 Cal.App.4th 1064, 1067.)
Defendant argues that there is insufficient evidence to show that he had the requisite specific intent either to permanently deprive Torres of her car or to remove the car from her possession for so extended a period of time that she would be deprived of a major portion of the value or enjoyment of the property. We disagree.
When determining the sufficiency of the evidence to support a conviction, we look at “the entire record in the light most favorable to the prosecution to determine whether it contains evidence... from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Kipp (2001) 26 Cal.4th 1100, 1128.) Though we must ensure that the evidence is reasonable, the trier of fact determines the credibility of witnesses “‘and the truth or falsity of the facts on which that determination depends.’” (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) Therefore, we must not substitute our own evaluation of the credibility of witnesses for that of the fact finder. (Ibid.)
Intent to steal may be found “when personal property is dealt with in such a way as to create an unreasonable risk of permanent loss.” (People v. Zangari (2001) 89 Cal.App.4th 1436, 1446.) Though defendant did not hit anything or anyone while he was fleeing the sheriff’s deputies, there was still an unreasonable risk of an accident that would result in permanent loss. Stated otherwise, he used Torres’s car in a manner that could have deprived its owner of a major portion of its value and enjoyment. Thus, it would not be unreasonable for jurors to infer that defendant intended to take the car for so extended a period of time as to deprive the owner of a major portion of its value or enjoyment. (People v. Avery, supra, 27 Cal.4th at p. 55; see § 487, subd. (d)(1); Zangari, supra, at p. 1446.)
The Modified Instructions Given Erroneously Omitted the Specific Intent Element of Grand Theft of an Automobile.
CALCRIM No. 1800 provides that, in order to convict a defendant of theft, the jury must find, in relevant part: “When the defendant took the property (he/she) intended (to deprive the owner of it permanently/ [or] to remove it from the owner’s [or owner’s agent’s] possession for so extended a period of time that the owner would be deprived of a major portion of the value or enjoyment of the property).”
At trial, the trial court gave a modified version of CALCRIM No. 1800, that defined the intent element of grand theft as simply requiring that “[w]hen the defendant took the property he intended it.” Although the prosecutor’s argument effectively explained that grand theft of an automobile requires the intent to permanently deprive the owner of her automobile, and that this intent could be inferred from defendant’s reckless driving pattern, the jury was also instructed with CALCRIM No. 200, stating that if the jury believed that an attorney’s comments conflicted with the court’s instructions, it must follow the court’s instructions.
CALCRIM No. 200 states in part: “You must follow the law as I explain it to you, even if you disagree with it. If you believe that the attorneys’ comments on the law conflict with my instructions, you must follow my instructions.”
Instructional errors are generally subject to harmless error standard of review. (People v. Flood (1998) 18 Cal.4th 470, 502-503 [“[A]n instructional error that improperly describes or omits an element of an offense... generally is not a structural defect in the trial mechanism that defies harmless error review and automatically requires reversal under the federal Constitution.”].) Where the instruction improperly describes or omits an element of the offense, reversal is required unless the error is harmless beyond a reasonable doubt. (People v. Kelly (1992) 1 Cal.4th 495, 527.)
Here, while the evidence supports a finding that defendant had the requisite intent, it is not so overwhelming that we can say beyond a reasonable doubt that defendant would have been convicted if the jury had been properly instructed. Rather, there is a reasonable possibility that defendant would have been convicted of the lesser included offense of taking or driving a vehicle (Veh. Code, § 10851; People v. Buss (1980) 102 Cal.App.3d 781, 784), which required only that defendant “intended to deprive the owner of possession or ownership of the vehicle for any period of time” (CALCRIM No. 1820).
Where, as here, “a greater offense must be reversed, but a lesser included offense could be affirmed, we give the prosecutor the option of retrying the greater offense, or accepting a reduction to the lesser offense.” (People v. Kelly, supra, 1 Cal.4th at p. 528.) We will therefore exercise our authority under section 1260 to reduce defendant’s grand theft conviction to taking or driving a vehicle unless the People inform us via a petition for rehearing that they desire to retry the grand theft charge. (Ibid.) Because the conviction may be punished either as a misdemeanor or as a felony (§ 18; Veh. Code, § 10851, subd. (a)), we will remand the matter for resentencing as to this count.
The Trial Court Did Not Abuse its Discretion in Refusing to Strike a Prior Conviction.
Defendant requested that the trial court strike one of his prior convictions. The court denied the motion as to counts 1, 2 and 5 (grand theft, kidnapping and resisting an executive officer) and granted the motion as to count 7 (transportation of a controlled substance). Defendant contends the trial court abused its discretion in refusing his request, in that (1) the prior convictions occurred when he was 17 years old, he entered a plea and received a concurrent term for one of the offenses; (2) it appears that defendant’s criminal conduct is fueled by drugs, indicating that he needs treatment rather than incarceration for the rest of his life; (3) of the three current convictions, only one, kidnapping, is classified as a serious or violent felony, and here it was relatively minor; (4) defendant is only 29 years old; and (5) if he received a lengthy determinate term, it would be relatively unlikely that he would reoffend upon his release on parole.
“[I]n cases charged under [the three strikes] law, a court may exercise the power to dismiss granted in section 1385, either on the court’s own motion or on that of the prosecuting attorney[.]” (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504.) However, we cannot reverse a decision to strike or not to strike a prior conviction unless there has been an abuse of discretion by the trial court. (Id. at pp. 529-530.) The abuse of discretion standard is deferential, and our review is limited to a determination whether the trial court’s action “‘falls outside the bounds of reason’ under the applicable law and relevant facts.” (People v. Williams (1998) 17 Cal.4th 148, 162.)
In deciding whether to dismiss prior convictions under section 1385, subdivision (a), the trial court must consider the defendant’s background, the nature of his current offense and other individualized considerations (People v. Superior Court (Romero), supra, 13 Cal.4th at p. 531; People v. Dent (1995) 38 Cal.App.4th 1726, 1731), including all of the relevant factors, both aggravating and mitigating (People v. Tatlis (1991) 230 Cal.App.3d 1266, 1274; see People v. Jordan (1986) 42 Cal.3d 308, 318). It must determine whether, in light of defendant’s present and past offenses, “and the particulars of his background, character, and prospects, the defendant may be deemed outside the [Three Strikes] scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.” (People v. Williams, supra, 17 Cal.4th at p. 161.)
A decision does not warrant reversal merely because reasonable people may disagree. (People v. Carmony (2004) 33 Cal.4th 367, 377.) We are not authorized to substitute our judgment for that of the trial court. (Ibid.) Rather, we will find an abuse of discretion only where a decision is absurd, arbitrary or irrational, unsupported by the law and the evidence, resulting in a manifest miscarriage of justice. (People v. Cluff (2001) 87 Cal.App.4th 991, 998; People v. Jordan, supra, 42 Cal.3d at p. 316.)
Defendant must “‘clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.’” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.)
In requesting that the trial court strike one of defendant’s prior convictions, defense counsel thoroughly set forth the factors he believed warranted an exercise of discretion. The trial court responded: “The law is fairly clear that it’s a pretty high burden. And I’m troubled by the fact that, notwithstanding, you look at it as he was so young when he did these first two crimes. I look at it that he’s whatever age he is now, and he’s never gone a couple of years without being crime free. What I see is he’s told at a young age you better shape up or you’re in big trouble, and within a couple of years, he gets in trouble with possession of a gun. And what he’s really told is okay, we told you you’re going to be in really big trouble, but we’ll give you one more break. We’re not going to impose the third strike here and give you one more chance. Then he gets out, and he’s not out for a full year, and he’s—grand theft of a car and throwing drugs out of a car and then resisting an officer. I don’t see how I can intellectually follow the law and strike the strike.”
It is clear that the trial court did not act arbitrarily and capriciously in refusing to strike one of defendant’s prior convictions. It considered the relevant factors and reached a conclusion based on those factors and the applicable law. (People v. Cluff, supra, 87 Cal.App.4th at p. 998; People v. Jordan, supra, 42 Cal.3d at p. 318.)
Neither was the trial court’s decision so irrational as to result in a miscarriage of justice. While defendant was young when he committed the prior strike offenses, he had not led a crime-free life since that time, and he had failed to take advantage of a previous grant of leniency to turn his life around. “[T]he overwhelming majority of California appellate courts have... affirmed the refusal to dismiss[] a strike of those defendants with a long and continuous criminal career. [Citations.]” (People v. Strong (2001) 87 Cal.App.4th 328, 338-339.) They are “‘the kind of revolving-door career criminal[s] for whom the Three Strikes law was devised.’” (Id. at p. 340, fn. omitted.)
That defendant’s criminality might have been fueled by drug addiction “is not necessarily regarded as a mitigating factor when a criminal defendant has a long-term problem and seems unwilling to pursue treatment.” (People v. Martinez (1999) 71 Cal.App.4th 1502, 1511.) Defendant had a prior drug conviction, but there is nothing in the record suggesting he ever entered a drug rehabilitation program or attempted to deal with his claimed addiction.
Contrary to defendant’s characterization, the instant offenses were hardly minor. While defendant may not have intended to kidnap Torres’s daughter, he nonetheless drove away with her in an effort to evade arrest, putting her in serious danger in a high speed pursuit. He threatened deputies and innocent bystanders with a gun in his attempts to avoid arrest. In other words, he showed no regard for the safety of anyone else and was willing to risk their lives in order to keep from being arrested.
We conclude there is nothing in “the particulars of [defendant’s] background, character, and prospects” to suggest that “defendant may be deemed outside the [Three Strikes] scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.” (People v. Williams, supra, 17 Cal.4th at p. 161.) Accordingly, the trial court did not abuse its discretion in denying his request to strike one of his prior convictions. (People v. Strong, supra, 87 Cal.App.4th at p. 340; People v. Jordan, supra, 42 Cal.3d at p. 318.)
Section 654 Precludes Defendant from Being Sentenced on Both Counts 1 and 2
Section 654 provides: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision....” (Subd. (a).) This statutory provision protects against multiple punishment for “multiple statutory violations produced by the ‘same act or omission.’ [Citation.] However, because the statute is intended to ensure that defendant is punished ‘commensurate with his culpability’ [citation], its protection has been extended to cases in which there are several offenses committed during ‘a course of conduct deemed to be indivisible in time.’ [Citation.]” (People v. Harrison (1989) 48 Cal.3d 321, 335; accord, People v. Britt (2004) 32 Cal.4th 944, 951-952.)
In order to determine whether a course of conduct is indivisible, the court looks to “defendant’s intent and objective, not the temporal proximity of his offenses.” (People v. Harrison, supra, 48 Cal.3d at p. 335.) Thus, “if all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once. [Citation.] [¶] If, on the other hand, defendant harbored ‘multiple criminal objectives,’ which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, ‘even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.’ [Citation.]” (Ibid.)
Defendant contends, and the People agree, that the trial court erred in sentencing him concurrently on counts 1 and 2, because the evidence showed that he had a single intent and objective in the commission of the grand theft and the kidnapping. We also agree.
In the present case, the evidence is clear that the kidnapping was incidental to defendant’s taking of the car; he had no separate intent to kidnap Torres’s daughter. Therefore, defendant could not be sentenced for both offenses. (People v. Britt, supra, 32 Cal.4th at pp. 951-952.) On remand, the trial court should stay the sentence on either count 1 or count 2.
The Trial Court Erroneously Stayed the Prior Prison Term Enhancement.
Defendant contends, and again the People agree, that the trial court erroneously stayed the prior prison term enhancement (§ 667.5, subd. (b)). Once a prior prison term allegation under section 667.5, subdivision (b), has been found true, the trial court is required to impose the one-year enhancement. It may, however, strike the enhancement if it finds circumstances in mitigation and states on the record its reasons for striking the enhancement. (People v. Jordan, supra, 42 Cal.3d at p. 314; People v. Irvin (1991) 230 Cal.App.3d 180, 190.) Imposing and staying the enhancement, as was done here, is not an option. (People v. Jones (1992) 8 Cal.App.4th 756, 758.) Therefore, on remand, the trial court must either impose or strike the enhancement.
DISPOSITION
The conviction of grand theft of an automobile (§ 487, subd. (d)(1)) is reduced to taking or driving a vehicle (Veh. Code, § 10851, subd. (a)). In all other respects, the judgment of conviction is affirmed. The case is remanded for resentencing consistent with the views expressed herein.
We concur: WOODS, Acting P. J., ZELON, J.