Opinion
E051507
09-01-2011
THE PEOPLE, Plaintiff and Respondent, v. CRAIG ALGIA McCARTER, Defendant and Appellant.
Stephen S. Buckley, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Emily R. Hanks, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. SWF029953)
OPINION
APPEAL from the Superior Court of Riverside County. Dennis A. McConaghy, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed in part; reversed in part with directions.
Stephen S. Buckley, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Emily R. Hanks, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant and appellant Craig Algia McCarter of receiving stolen property. (Pen. Code, § 496, subd. (a).) Defendant admitted eight prior convictions, which constituted eight prison priors (Pen. Code, § 667.5, subd. (b)) and one strike prior (Pen. Code, § 667, subds. (c) & (e)(1)). The trial court imposed the midterm of two years, doubled to four years due to the strike, and added one year consecutive terms for two of the eight prison priors. Thus, the trial court imposed a total prison term of six years, but stayed imposition of six of the eight prison prior enhancements. The sentencing minute order does not recite any reasons for staying the punishment of six of the eight prison priors. Defendant contends there was substantial evidence of his intoxication; thus, the trial court erred by denying his request for an intoxication instruction. We reverse the order staying six of the eight prison prior enhancements, direct the trial court to impose or dismiss the enhancements (or strike their punishment) and recite its reasons in a minute order; we otherwise affirm.
BACKGROUND
On November 24, 2009, a police officer was dispatched to assist a parole agent in tracking down a parolee at large. They responded to the most recent coordinates transmitted by the parolee's GPS tracker. Prior to locating the parolee, dispatch provided updated coordinates; a nearby building in an industrial park that contained a hardware store in front and some smaller auto shops. Ten minutes after that update, the officer located defendant and the targeted parolee. The officer asked if he could speak with them. They both turned and started walking toward the officer. The officer asked them "if they were on probation or parole." Both of them said they were on parole. However, defendant was not on parole.
Defendant was carrying a black duffle bag; the officer "asked him if he had anything illegal in the bag." Defendant "said he just had an open bottle of alcohol." Defendant agreed to let the officer search the bag. The officer found several "newly packaged" tools specific to the chain with which the nearby hardware store was affiliated. The officer also found a pornographic VHS tape, magazines, and an open bottle of whiskey. The officer then searched defendant, but was unable to locate a store plastic bag or a receipt.
The officer went to the nearby hardware store. A clerk reported seeing two men of the same ethnicity as defendant and the parolee, one of whom was carrying a black duffle bag. The clerk scanned the barcodes on the packaged tools and examined the shelving where those tools were displayed. The clerk "noticed that one of each item was actually missing from the shelf . . . and verified that he was one short on the inventory in the computer." The officer showed defendant to the clerk; the clerk positively identified defendant. At trial, the clerk recalled making a clear identification, but did not recognize defendant sitting in the courtroom.
The officer testified at trial that he "could smell an odor of alcoholic beverage emitted from [defendant's] breath and person, but [he didn't] think [defendant] was too intoxicated. He wasn't slurring or anything." However, at the preliminary hearing, he had testified that defendant "appeared intoxicated." The officer explained that even though defendant had consumed alcohol, he did not do any kind of field sobriety test to determine a level of intoxication. Defendant responded coherently and directly to the officer's questions, was not falling over, and if he had been under the influence and falling over, the officer would have conducted sobriety tests and arrested defendant for public intoxication.
The officer's supervisor, a police sergeant, arrested defendant and advised him of his Miranda rights. Defendant appeared to understand what he was being told and also the questions that the sergeant was asking him. Defendant told the sergeant that he had met the parolee at a nearby restaurant. The parolee told him he had some tools; defendant gave the parolee his knapsack so he could go get the tools. The parolee was gone for "too long," so defendant stepped into the door of the hardware store "briefly" to look for him. Defendant did not see the parolee and went back to the restaurant. The parolee returned later with tools in the bag. They left the restaurant but saw many police cars in the area; they went a different direction "because [defendant] didn't want to look at the tools in that area. [Defendant] explained that the reason he didn't want to is because he knew they were stolen."
Defendant's trial counsel requested an intoxication instruction. However, the trial court denied the request because "in light of the testimony, we have no evidence of intoxication."
VOLUNTARY INTOXICATION
Defendant contends the trial court prejudicially erred in concluding that there was no evidence of intoxication and refusing to give a voluntary intoxication instruction. We disagree.
A defendant is only entitled to an instruction on voluntary intoxication when there is substantial evidence of voluntary intoxication and the intoxication affected the actual formation of specific intent. (People v. Verdugo (2010) 50 Cal.4th 263, 295.) " 'Substantial evidence is evidence sufficient to "deserve consideration by the jury," that is, evidence that a reasonable jury could find persuasive.' [Citation.]" (People v. Lewis (2001) 25 Cal.4th 610, 645.) "Normally, merely showing that the defendant had consumed alcohol or used drugs before the offense, without any showing of their effect on him, is not enough to warrant an instruction." (People v. Pensinger (1991) 52 Cal.3d 1210, 1241.)
Although receiving stolen property is a general intent crime, an element of the offense is that a defendant knew the property was stolen. (People v. Russell (2006) 144 Cal.App.4th 1415, 1425.) Thus, in this context, the prerequisite for a voluntary intoxication instruction is substantial evidence of voluntary intoxication and substantial evidence the intoxication affected defendant's ability to know the property was stolen. However, there was no evidence that intoxication affected defendant's ability to know the property was stolen. To the contrary, defendant told the sergeant that "he knew [the tools] were stolen."
Defendant contends that his "behavior at the time of arrest suggests that he was under the influence and not thinking clearly." In particular, he cites his telling the officer that he was on parole when he was not, agreeing to let the officer search his bag, and his statement that he did not want to look at the tools because the police were around. However, none of this behavior is substantial evidence that his capacity to know the tools were stolen was impaired. To the contrary, his statement to the sergeant expressly shows he both possessed such capacity and actually knew the tools were stolen. Accordingly, we find no error in the trial court's refusal to give the instruction.
STAYING THE PRISON PRIOR ENHANCEMENTS
Although not raised by the parties, we note that the trial court imposed but stayed six of the eight prison priors (Pen. Code, § 667.5, subd. (b)) rather than striking their punishment and stating the reasons for doing so in a written minute order. "Once [a] prior prison term is found true within the meaning of section 667.5[, subdivision (b)], the trial court may not stay the one-year enhancement, which is mandatory unless stricken. [Citations.]" (People v. Langston (2004) 33 Cal.4th 1237, 1241.) Accordingly, we will reverse the order staying the enhancements and direct the trial court to either impose the enhancements, dismiss them, or strike the punishment from the enhancements. If it elects to strike the punishment, or dismiss the priors, the trial court must state its reasons in a written minute order. (Pen. Code, § 1385; see People v. Bonnetta (2009) 46 Cal.4th 143, 149 ["[A] dismissal without a written statement of reasons is invalid and of no effect regardless of the reviewing court's belief that the reasons for the dismissal can be discerned from other portions of the record"].)
DISPOSITION
The order staying the punishment of the prison prior enhancements (Pen. Code, § 667.5, subd. (b)) is reversed. The trial court is directed to either impose the enhancements, dismiss them, or strike the punishment from the enhancements. If the trial court dismisses the enhancements, or strikes their punishment, it must state its reasons in a written minute order. (Pen. Code, § 1385.) In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
HOLLENHORST
J.
RICHLI
J.
Miranda v. Arizona (1966) 384 U.S. 436.