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The People v. Tomas Calderon

March 14, 2013

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
TOMAS CALDERON, DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Superior Court of Los Angeles County, Anne H. Egerton, Judge. Modified and, as so modified, (Los Angeles County Super. Ct. No. BA375395)

The opinion of the court was delivered by: Aldrich, J.

CERTIFIED FOR PARTIAL PUBLICATION*fn1

affirmed.

Defendant and appellant Tomas Calderon appeals his convictions for carjacking, grand theft auto, and misdemeanor vandalism. The trial court sentenced Calderon to a term of six years in prison. In the published portion of this opinion, we conclude that Penal Code section 654*fn2 does not bar imposition of sentence on a section 12022, subdivision (b)(2) enhancement because section 12022, subdivision (b)(2) operates as an implied exception to section 654. Alternatively, we conclude that section 654 does not bar imposition of the enhancement because section 12022, subdivision (b)(2) punishes an aspect of Calderon's offense that is not always present in the crime of carjacking.

In the unpublished portion of the opinion, we consider and reject Calderon's contention that the trial court committed instructional error. We agree with Calderon that the abstract of judgment must be corrected to accurately reflect the jury's verdicts, and order the judgment modified accordingly. In all other respects, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts.

a. People's evidence.

At approximately 11:00 o'clock on the morning of August 29, 2010, Alexander Luna, accompanied by his friend William Seney, drove his roommate's red Honda Civic to a swap meet at a Los Angeles community college.*fn3 Luna parked the Honda on the top level of a parking structure, locked the vehicle's doors, and walked out to the swap meet.

Approximately 30 minutes later, Luna heard a car alarm that sounded like the Honda's. He joked to Seney that someone was stealing his car. He and Seney walked back to the parking structure, which was crowded with vehicles arriving and leaving. Luna was surprised to see Calderon driving the Honda down an exit ramp. Luna ran to the Honda, which was stopped due to traffic in the parking structure, and jumped on the vehicle's hood. Luna moved to the driver's side and managed to use his key to unlock the Honda's doors, but Calderon relocked them before Luna could get the door open. Calderon, who appeared frightened, attempted to drive away but his path was blocked by other vehicles. At Luna's direction, Seney threw a steering lock he had just purchased towards the Honda in an effort to break the window, but missed. Luna then punched the driver's side window in an attempt to get inside the car, breaking his wrist and fingers. Luna stood in front of the Honda to prevent Calderon from leaving, but kept moving back and forth to avoid being "run over" by Calderon. Twice, Calderon accelerated and drove at Luna. In the first instance, Calderon could have passed by Luna, but instead drove "directly towards" him. Luna was able to jump aside. In the second instance, it appeared to Luna that Calderon was not trying to hit him but was simply attempting to leave the structure. The Honda slightly hit Luna's knee before he was able to move out of the way. Calderon kept backing up abruptly and rapidly moving forward to get around the other cars.

Meanwhile Andrew Diaz, the head security officer for the swap meet, was alerted to the incident as it was in progress. Diaz heard tires screeching and saw the Honda driving the wrong way down a ramp. Diaz yelled to Calderon to stop. Diaz testified that Calderon "tried to run [him] over," but he moved out of the way. By the time Calderon reached the exit, security personnel had begun lowering an aluminum "roll-up gate" to stop Calderon's escape. Calderon drove the Honda through the gate as it was coming down, causing the Honda's windshield to shatter and the gate to bend. Calderon then drove out of the parking lot and sped away.

A police officer observed Calderon speeding from the structure, was alerted to the situation by witnesses, and gave chase. After a brief pursuit, Calderon stopped the Honda and fled on foot. He was apprehended by officers shortly thereafter. A search of Calderon's person revealed a "shaved" vehicle key in his pocket.*fn4

b. Defense evidence.

Calderon's former girlfriend, Iliana Matias, testified that Calderon was a mechanic and owned a Honda Civic, which he had rebuilt. On the morning of the incident, one of Calderon's friends, "Johnny," told him another friend, "Rembrer," had just purchased a car and needed help getting it to start. Calderon left with Johnny and did not return. Calderon knew that Rembrer was a car thief, but Rembrer also purchased and repaired cars.

2. Procedure.

Trial was by jury. Calderon was convicted of carjacking (§ 215, subd. (a)), grand theft auto (§ 487, subd. (d)(1)), and misdemeanor vandalism (§ 594, subd. (a)). The jury found Calderon personally used a deadly and dangerous weapon, the automobile, during commission of the carjacking. (§ 12022, subd. (b)(2).) It acquitted Calderon on count 2 (assault of Luna with a deadly weapon) and was unable to reach a verdict on count 3 (assault of Diaz with a deadly weapon), which was dismissed on the People's motion. The trial court sentenced Calderon to a term of six years in prison. It imposed a restitution fine, a suspended parole restitution fine, a court security assessment, and a criminal conviction assessment. Calderon appeals.

DISCUSSION

1. The trial court did not prejudicially err by failing to provide the jury with a ...


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