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The People v. Kantrell Demon Carliseh

July 27, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
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

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

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.

BACKGROUND

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.

DISCUSSION I

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 ...


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