IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
July 27, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
KANTRELL DEMON CARLISEH DEFENDANT AND APPELLANT.
(Super. Ct. Nos. 09F07300, 09F05279)
The opinion of the court was delivered by: Raye, P. J.
P. v. Carliseh
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Kantrell Demon Carliseh contends there was insufficient evidence to convict him of possessing a stolen vehicle, the court failed to instruct the jury as to the union of act and mental state on the charges of possessing a stolen vehicle and aider and abettor liability, and the trial court erred in finding defendant admitted a prior prison term. We conclude that (1) there was sufficient evidence to support defendant's conviction for possessing a stolen vehicle, (2) the jury was properly instructed, and (3) the trial court erred in finding defendant admitted the prior prison term.
We shall reverse the judgment only as to the sentencing enhancement and remand for further proceedings consistent with this opinion.
After midnight on September 26, 2009, Jose Lopez was at home with his wife Yolanda Chavez when he heard their car start. Holding the keys to the car, Lopez looked out the window to see a person, alone, dressed in black and wearing a hood, inside their Oldsmobile Cutlass Ciera. Lopez went outside and saw the car drive away.
Lopez and Chavez got in their truck and followed the car. When they did not immediately find their car, Lopez and Chavez returned home to get a cell phone. Chavez used the cell phone to call 911; they got back in their truck and went looking for their Oldsmobile.
As they were driving around, Lopez and Chavez passed a private security car. Approximately 10 minutes later, they saw Lopez's uncle driving toward them, flashing his high beam lights at Lopez and Chavez. Believing his uncle was signaling him, Lopez turned and saw the Oldsmobile.
Lopez then parked his truck in front of the Oldsmobile, blocking its path. Lopez's uncle parked his car on the Oldsmobile's right side to prevent the passenger doors from opening. The private security guard Lopez had passed minutes earlier then pulled up and parked next to the Oldsmobile.
After the Oldsmobile was blocked in, Lopez turned on his high beams. Looking in through the windshield, Lopez saw four black adult men: one in the driver's seat, a front passenger, and two rear passengers. Lopez got out of his truck and walked around to the driver's side of the Oldsmobile. As he did, the passengers in the backseat of the Oldsmobile got out of the left side of the car and ran toward the nearby apartments. Lopez then opened the driver's side door; he saw the front passenger climb over the driver and try to get out, but the passenger "stumbled" and fell to the ground on his knees. Next, Lopez saw the driver, whom he later identified as defendant, stumble out of the car. Lopez then ran after one of the suspects.
Defendant, who was running from the car toward the nearby apartments, was apprehended by private security. He claimed to live in a nearby apartment complex. Another suspect, identified only as "Smith," was detained by a civilian with a Taser. The remaining two suspects escaped.
Defendant was arrested and charged in Sacramento Superior Court case No. 09F07300 with possession, unlawful taking, or driving of a vehicle (Veh. Code, § 10851, subd. (a)) and receiving a stolen vehicle (Pen. Code, § 496d, subd. (a)). It was further alleged that defendant had previously served a prison term for a felony conviction. (Pen. Code, § 667.5, subd. (b).) Defendant pled not guilty to the charges and denied the sentencing enhancement allegation.
At trial, both Lopez and Chavez identified defendant as the driver of the Oldsmobile and the last person to exit the car. Lopez also testified that he recognized defendant because the Oldsmobile was for sale, and defendant had previously approached Lopez and asked how much he wanted for the car. Lopez and Chavez also identified "Smith" as the front passenger in the car.
Defendant presented no evidence on his behalf. Rather, defendant relied on Lopez's description of the person who took his car, and the conflicting testimony about who was driving the car.
The jury was, in part, persuaded by defendant's argument. After deliberation, the jury found defendant not guilty of taking the victims' car; however, the jury found defendant guilty of possessing a stolen vehicle. The trial court later found true the allegation that defendant had previously served a prison term. The court also found defendant violated his probation in Sacramento County case No. 09F05279.
The court denied defendant's request to reduce his conviction in case No. 09F07300 to a misdemeanor as well as his application for probation, and imposed an aggregate term of four years in state prison. Defendant received 384 days' custody credit for time served (192 days in custody and 192 days' conduct).
Defendant also was sentenced to a consecutive, eight-month term in case No. 09F05279 for which he received 92 days' credit for time served (46 days in custody and 46 days' conduct).*fn1 Fines and fees were imposed in both cases. Defendant appeals.
Defendant contends there was insufficient evidence to convict him of possessing a stolen vehicle. He raises several arguments in support of his claim, all of which are based on the premise that if the jury found defendant not guilty of taking the vehicle, then he could not have been the person driving the vehicle at the time the vehicle was found. Thus, defendant could only have been liable under a theory of constructive possession or as an aider or abettor. He contends there is insufficient evidence to support either of those theories.
Defendant's argument is based on a faulty premise: there was insufficient evidence that defendant was the driver of the vehicle at the time it was stopped -- in fact there was. "In determining whether the judgment was supported by substantial evidence, we consider all of the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference, and resolving conflicts in favor of the judgment. We do not reweigh the evidence. 'Our authority begins and ends with a determination as to whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted, in support of the judgment.' [Citation.]" (McMahon v. Albany Unified School Dist. (2002) 104 Cal.App.4th 1275, 1282.)
Both of the victims testified they saw defendant in the driver's seat as the car was stopped. There was arguably inconsistent testimony from other witnesses, but we do not reweigh evidence on appeal.
Defendant's claim that it would be impossible for the jury to conclude he was driving the car if they did not conclude he took the car is meritless. The evidence at trial was that one unidentified person took the car from the victims' driveway. When the car was found, approximately 10 minutes later, there were four men in the car. Thus, at some point the person who took the car stopped to pick up the other three men.
Consequently, even if defendant was not the person who took the car, he could very well have taken over driving the car when he was picked up. The two verdicts are consistent with a finding that defendant was driving the car when it was stopped. We find no error.
Defendant also contends the trial court failed to instruct the jury properly on the "union of act and mental state" with regard to the crime of possessing stolen property. Specifically, defendant contends the trial court erred in telling the jury that possessing a stolen vehicle is a "general intent" crime, requiring the prosecution to prove only that defendant committed the prohibited act with "wrongful intent." Therefore, defendant argues, the "trial court failed to instruct the jury that, to find [defendant] guilty of possession of a stolen vehicle, there must be [a] union of the act of possession and the knowledge that the vehicle was stolen." Defendant is wrong.
In assessing whether the jury instructions were erroneous, we consider them as a whole and assume the jurors are capable of understanding them. (People v. Guerra (2006) 37 Cal.4th 1067, 1148-1149.) We also presume the jury understood and followed the trial court's instructions. (People v. Holt (1997) 15 Cal.4th 619, 662.)
Here, the jury was instructed with CALCRIM No. 252: "The crimes charged require proof of the union, or joint operation, of act and wrongful intent. [¶] . . . [¶]
"Possession of a stolen vehicle, requires general criminal intent. For you to find a person guilty of this crime, that person must not only commit the prohibited act, but must do so with wrongful intent. A person acts with wrongful intent when he or she intentionally does a prohibited act on purpose, however, it is not required that he or she intend to break the law. The act required is explained in the instruction for that crime."
The jury was then instructed on the elements of receiving stolen property pursuant to CALCRIM No. 1750, including the requirement that "[w]hen the defendant received, concealed or withheld, or aided in the concealing or withholding the Cutlass, he knew that it had been stolen." That these instructions were given separately "is immaterial, as jurors were also told to consider the instructions together." (People v. Hernandez (2010) 181 Cal.App.4th 1494, 1502.)
Defendant makes a similar argument with regard to the trial court's instruction on aider and abettor liability. Specifically, he contends that by instructing the jury that possession of a stolen vehicle is a general intent crime, the court failed to adequately instruct the jury that in order to be held liable as an aider and abettor the prosecution had to prove defendant had the specific intent to aid and abet the perpetrator. Again, defendant is wrong.
Here, jurors were instructed with CALCRIM Nos. 400 and 401, which provide in relevant part that in order "[t]o prove that the defendant is guilty of a crime based on aiding and abetting that crime, the People must prove that: [¶] 1. The perpetrator committed the crime; [¶] 2. The defendant knew that the perpetrator intended to commit the crime; [and] [¶] 3. Before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime . . . ." (CALCRIM No. 401.)
Thus, considering the instructions as a whole, and knowing the jurors were instructed to consider the instructions together, it is evident the jury was instructed that to convict defendant as an aider and abettor, the prosecution must prove defendant knew the perpetrator intended to commit the crime. Accordingly, we find no error.
Defendant further contends the trial court failed to obtain an affirmative, unqualified admission to the allegation that defendant previously served a prison sentence. The People contend defendant's "intent to admit" the prior prison term is sufficient. Defendant has the better argument.
"All enhancements shall be alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact." (Pen. Code, § 1170.1, subd. (e).) Here, neither of these occurred:
"THE COURT: We are on the record out of the presence of the jury.
"[Defendant], we got a note, and the jury has a verdict. If they find you guilty, then we have this issue of that prior the district attorney is charging you with, that you went to prison back in '05 or something, and that if that's found true, then that adds a year on your sentence. I think we already talked about not telling the jury about that while they are trying to decide about the car-theft case, and that's only fair.
"What I need to know now, though, is, because you have the right to a jury trial on that prior, if they find you guilty, then what I would have to do is tell this jury, 'Now we are going to have a little mini trial,' and the district attorney would produce the documents I think you've already seen that showed you were in prison, and then we would have to give it back to the jury.
"So what I want to know before we bring them back in is, do you want to waive your right to a jury trial if you are found guilty, and just admit that prior?
"THE DEFENDANT: Yeah.
"THE COURT: You understand you have the right to a jury trial on that prior, and have all the same rights at the jury trial that we just had on the car-theft case?
"Do you understand all that?
"THE DEFENDANT: Yes.
"THE COURT: And do you waive your right to a jury trial on that issue?
"THE DEFENDANT: Yes.
"THE COURT: Have you had enough time to talk with your attorney about this?
"THE DEFENDANT: Yes, sir.
"THE COURT: And [counsel], do you join in the waiver?
"[DEFENSE COUNSEL]: Yes.
"THE COURT: And the district attorney joins?
"[DISTRICT ATTORNEY]: Yes.
"THE COURT: And if we need to, we'll take a plea after they come back.
"Anything else before we bring them in?
"[DISTRICT ATTORNEY]: No.
"[DEFENSE COUNSEL]: No, Your Honor.
"THE COURT: All right. Let's bring them in."
After the verdicts were read, the court trial on the prior conviction commenced:
"THE COURT: [Defendant], the allegation about that prior says that on -- we have amended it to May 6th, 2005 -- in Sacramento you were convicted of false imprisonment in violation of Penal Code Section 236, and that you suffered a separate term in state prison for that, and did remain free of custody for five years.
"Regarding that allegation, you have the right to see and hear witnesses testify under oath, have your attorney question them, the right to remain silent and not incriminate yourself, and the right to testify, present a defense, and use the Court's subpoena power to bring evidence and witnesses to court.
"You also have the right to have that case tried by the Court instead of just admitting it, the same as like a jury trial, except that I would be the jury instead of having a jury.
"So do you understand those rights?
"([Defense counsel] conferred with the defendant.)
"THE DEFENDANT: Yes.
"THE COURT: And do you waive all those rights?
"THE DEFENDANT: Yes, sir.
"THE COURT: And Counsel, you join?
"[DEFENSE COUNSEL]: So join.
"THE COURT: People join?
"[DISTRICT ATTORNEY]: Yes.
"THE COURT: Thank you, [defendant].
"I am going to find true the allegation that you suffered that prior conviction."
Defendant made no admission on the record, and the People's claim of defendant's intent to make the admission is not persuasive. Defendant's saying he would admit the prior if the jury returned with a guilty verdict is not sufficient; he could have changed his mind once the verdict was read. Nor is it sufficient that defendant waived his right to a jury on the issue because there is nothing in the record indicating there was a bench trial where the court considered evidence in support of the allegation.
Accordingly, defendant's conviction on the prior prison term is reversed, and the matter will be remanded for further proceedings.
Defendant's conviction on the prior prison term allegation is hereby reversed. This matter is remanded for the sole purpose of allowing the People 60 days from the date of issuance of this court's remittitur to either try the sentencing enhancement allegation or obtain defendant's unequivocal admission on the record. If the People choose not to pursue a conviction on the allegation or if their second attempt to obtain a conviction on the sentencing enhancement should fail, defendant shall be resentenced accordingly. In either event, a corrected abstract of judgment shall be prepared and delivered to the Department of Corrections and Rehabilitation.
We concur: NICHOLSON , J. BUTZ , J.