Opinion
NOT TO BE PUBLISHED
Superior Court County of Ventura, Ct. No. 2008049906, Bruce A. Young, Judge
Lisa M. J. Spillman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Theresa A. Patterson, Robert David Breton, David F. Glassman, Deputy Attorneys General, for Plaintiff and Respondent.
PERREN, J.
Omar Quintana appeals the judgment following his conviction for carjacking (Pen. Code, § 215, subd. (a)), unlawful taking or driving a vehicle (Veh. Code, § 10851, subd. (a)), and misdemeanor evading a police officer (Veh. Code, § 2800.1). He admitted he was on probation at the time of the offenses. Quintana was sentenced to three years eight months in prison, consisting of three years for carjacking, plus a consecutive eight-month term for violation of probation imposed after a conviction for possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)) in another case (§ 1203, subd. (k)). The trial court also imposed a concurrent 90-day sentence for evading a police officer, and imposed and stayed an 18-month sentence for unlawful taking or driving a vehicle. (§ 654.) Quintana contends the aiding and abetting jury instruction erroneously stated that each principal is "equally guilty" of the offenses. He also claims the judgment included fines, fees and penalties that were not lawfully imposed by the trial court. With one exception, we will strike the fines, fees and penalties. Otherwise, we affirm.
All statutory references are to the Penal Code unless otherwise specified.
FACTS
While he was driving, Steven Quintin's car was struck by a bicyclist. He pulled over and he and his sister, a passenger in the car, went to the aid of the bicyclist. Quintin turned off his engine but left the keys in the ignition. Both doors of the car were left open.
A few seconds after Quintin reached the bicyclist, Quintana and another man walked up to the car and got in. Quintana was in the driver's seat. Quintin rushed back to his car to confront the men in the car and demanded that Quintana and his companion get out. The man in the passenger seat stood up, raised his fist in a threatening manner, yelled at Quintin to "back off, " and moved his hand towards his pocket. Quintin became afraid and backed off. Quintana said nothing during the incident. Quintana and his companion drove away in the car.
A police officer happened to be driving by and Quintin and his sister waived at the officer to follow the car. The officer pursued the car, but Quintana refused to pull over and began driving in a dangerous manner. Quintana and his accomplice surrendered to the police when they had reached Quintana's home. Quintana was taken into custody but the accomplice escaped.
DISCUSSION
No Error in "Equally Guilty" Jury Instruction
Quintana contends that the trial court erred by instructing the jury that a person is "equally guilty" whether he committed the crime personally or aided and abetted the actual perpetrator. (Former CALCRIM No. 400.) Quintana claims that the "equally guilty" language is inaccurate because an aider and abettor may be guilty of a lesser crime than the actual perpetrator.
As given by the trial court, CALCRIM No. 400 provided: "A person may be guilty of a crime in two ways. One, he or she may have directly committed the crime. I will call that person the perpetrator. Two, he or she may have aided and abetted a perpetrator, who directly committed the crime. A person is equally guilty of the crime whether he or she committed it personally or aided and abetted the perpetrator who committed it. [¶] Under some specific circumstances, if the evidence establishes aiding and abetting of one crime, a person may also be found guilty of other crimes that occurred during the commission of the first crime."
Quintana forfeited this claim by failing to raise it in the trial court. A party may not claim for the first time on appeal that a generally correct jury instruction is incomplete or misleading unless the party objected or requested a modification in the trial court. (E.g., People v. Guerra (2006) 37 Cal.4th 1067, 1134; People v. Samaniego, supra, 172 Cal.App.4th at p. 1163.) In Samaniego, the defendant made a similar challenge to the "equally guilty" language of CALCRIM No. 400. The Court of Appeal concluded that CALCRIM No. 400 is generally an accurate statement of the law and that the defendant had forfeited his claim. (Samaniego, at p. 1163.) We agree with the reasoning and result in Samaniego.
Even if Quintana's claim has been preserved for review, there was no prejudicial error in this case. In People v. McCoy, supra, 25 Cal.4th 1111, our Supreme Court concluded that an actual perpetrator and aider and abettor of a murder are not always equally guilty, and that an aider and abettor can be found guilty of a greater degree of homicide if his or her mental state is more culpable than that of the actual perpetrator. (Id. at p. 1122.) Later cases have applied the McCoy reasoning in holding that an aider and abettor of a murder also may be found guilty of a lesser crime than the actual perpetrator based on a less culpable mental state. (People v. Samaniego, supra, 172 Cal.App.4th at pp. 1164-1165; People v. Nero (2010) 181 Cal.App.4th 504, 513-514.)
The court in McCoy, however, limited its holding to homicides. (People v. McCoy, supra, 25 Cal.4th at p. 1122, fn. 3.) Samaniego and Nero are also murder cases and no California court has applied McCoy to a crime other than murder. Even if the McCoy reasoning could be applied to certain non-homicide offenses, it only would be in "exceptional circumstances" where multiple perpetrators may have acted with different mental states in committing the charged crimes. (People v. Samaniego, supra, 172 Cal.App.4th at pp. 1163-1165.) This is not such a case.
An aider and abettor's guilt is based on a combination of the actual perpetrator's acts, the aider and abettor's acts and the aider and abettor's mental state. (People v. McCoy, supra, 25 Cal.4th at p. 1117.) In the case of murder, the mental states of an actual perpetrator and aider and abettor are critical because different mental states are required for different degrees of homicide. Conversely, there is only one degree of carjacking and the offense requires the same mental state in all cases. Carjacking occurs when the defendant takes a vehicle from the immediate presence of the person in possession, against the will of the person, by means of force or fear, and with the specific intent to permanently or temporarily deprive the person of possession. (§ 215, subd. (a); People v. Hill (2000) 23 Cal.4th 853, 858-859.) Here, there is no dispute that Quintana and his accomplice intended to deprive the victim of his car by stealing it. Necessarily, they acted with the same mental state and the same degree of culpability.
Section 215, subdivision (a) provides in its entirety that carjacking "is the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence, or from the person or immediate presence of a passenger of the motor vehicle, against his or her will and with the intent to either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession, accomplished by means of force or fear."
Quintana concedes that his intent was to steal the car, but argues that he did not intend to participate in a carjacking. At trial, defense counsel argued that it was a crime of opportunity and that Quintana and his accomplice acted spontaneously. Counsel argued that their intent--or hope--was to get away before being seen by the victim. Of course, they did not do so. The only reasonable interpretation of the evidence is that, when the victim ran back to his car, Quintana and his accomplice decided to use force or fear to carry out their original intent and, thereby, committed the crime of carjacking. The accomplice threatened the victim, and Quintana remained behind the wheel of the car ready to drive off.
Quintana argues that his accomplice was the sole perpetrator of the carjacking because it was the accomplice's words and gestures that constituted the force or fear essential to carjacking. This argument is contrary to legal authority. No express threat is necessary to establish the victim's fear, and brazen behavior alone can create sufficient fear. (People v. Flynn (2000) 77 Cal.App.4th 766, 771-773; People v. Davison (1995) 32 Cal.App.4th 206, 216-217.) Quintana's presence in the driver's seat of the victim's car was sufficient use of force or fear to satisfy that element of carjacking.
Quintana also argues that the prosecution's theory of the case was that Quintana was liable for carjacking solely as an aider and abettor. The prosecutor argued that "I don't have to prove the defendant actually did the acts that constitute a carjacking. I have to prove the other co-participant did" and that Quintana is liable for carjacking because it was the "natural and probable consequence" of taking the vehicle.
Even if Quintana is treated solely as an aider and abettor, there is nothing confusing or misleading about the "equally guilty" language in CALCRIM No. 400. As the jury was instructed, criminal liability based on aiding and abetting requires proof the defendant "knew that the perpetrator intended to commit the crime [and] intended to aid and abet the perpetrator in committing the crime." (CALCRIM No. 401.) A person aids and abets if he or she acts "with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense." (People v. Beeman (1984) 35 Cal.3d 547, 560.) Here, Quintana and his accomplice acted in concert with the same criminal intent. Also, Quintana played an essential role in the carjacking because his presence could reasonably instill fear in the victim, and because he was the person who drove the car away as the victim stood helpless.
In addition, under California law, aider and abettor liability includes the potential for liability under the "'natural and probable consequences'" doctrine. (People v. Prettyman (1996) 14 Cal.4th 248, 261; People v. Beeman, supra, 35 Cal.3d at p. 560.) A defendant is criminally responsible not only for the crime he or she intended to aid and abet, but also for any other crime that is the natural and probable consequence of that crime. (Prettyman, at p. 261; see also People v. Karapetyan (2006) 140 Cal.App.4th 1172, 1177.)
Here, the jury was instructed on the natural and probable consequences doctrine. Therefore, even if the unlawful taking or driving a vehicle was the target offense, the evidence was overwhelming that carjacking was a natural and foreseeable consequence when Quintana and his companion got into the car while the victim was standing only a few feet away.
Correction of Judgment
Quintana contends that references in the clerk's minute order and abstract of judgment to the imposition of certain fines, fees and penalties must be stricken because the trial court did not orally impose them at the sentencing hearing. We agree.
The clerk's minute order states that the trial court ordered Quintana to pay a $500 restitution fine (§ 1202.4, subd. (b)), a $500 parole revocation fine (§ 1202.45), a $1,885 probation investigation fee (§ 1203.1b), and victim restitution in an amount to be determined later (§ 1202.4, subd. (f)). The minute order also states that the court ordered Quintana to surrender his driver's license to be revoked for one year, participate in a substance abuse program (§ 1203.096), and provide fingerprints and DNA samples (§ 296, subd. (a)(1)). The abstract of judgment references each of these orders, and also references the imposition of a $190 laboratory fee (Health & Saf. Code, § 11372.5, subd. (a)), and a $570 drug program fee (Health & Saf. Code, § 11372.7, subd. (a)). The trial court, however, did not impose any of these fines, fees or penalties at the sentencing hearing, and the People did not object or otherwise bring the subject to the trial court's attention at the sentencing hearing.
The abstract of judgment states that the section 1202.45 parole revocation restitution fine is $200 rather than the $500 set forth in the minute order.
The clerk's minutes must accurately reflect what occurred at the sentencing hearing, and the clerk cannot supplement the judgment orally pronounced by the court by adding provisions to the minute order or abstract of judgment. (People v. Zackery (2007) 147 Cal.App.4th 380, 387-388.) Where there is a discrepancy between the court's oral pronouncement and the minute order or abstract of judgment, the oral pronouncement controls. (People v. Mitchell (2001) 26 Cal.4th 181, 185-186.)
Quintana and respondent agree that there was error, but disagree on the remedy. Quintana argues that the fines, fees and penalties must be stricken from the judgment without a remand or other action to cure the defects. Respondent argues that we should remand to permit the trial court to consider imposition of the fines, fees and penalties.
An appellate court may not correct a discretionary sentencing choice regarding imposition of a fine or fee if the People fail to object in the trial court. (People v. Tillman (2000) 22 Cal.4th 300, 303; see also People v. Talibdeen (2002) 27 Cal.4th 1151, 1153.) Because such an error cannot be corrected "without considering factual issues presented by the record or remanding for additional findings, " it may not be raised for the first time on appeal. (People v. Smith (2001) 24 Cal.4th 849, 853.) Conversely, failure to impose a mandatory fine results in an unauthorized sentence that can be corrected at any time even if the matter is raised for the first time on appeal. (People v. Barnwell (2007) 41 Cal.4th 1038, 1048, fn. 7; People v. Walz (2008) 160 Cal.App.4th 1364, 1369.)
Accordingly, the references in the clerk's minutes and abstract of judgment to discretionary fines, fees or penalties must be stricken without further action. References to mandatory fines, fees or penalties require further action to correct any resulting unauthorized sentence.
Section 296, subdivision (a)(1) provides that any person convicted of any felony offense "shall provide" blood and other samples for DNA testing as well as certain fingerprints. The requirement is mandatory and automatic upon conviction of a felony. Failure to make the order results in an unauthorized sentence and a request to impose the requirement has not been forfeited. (See People v. Brewer (2001) 87 Cal.App.4th 1298, 1302.) Therefore, we will order that the section 296 order remain in the judgment.
Health and Safety Code section 11372.5, subdivision (a) provides that any person convicted of a violation of various Health and Safety Code provisions, including section 11377, subdivision (a), "shall" pay a criminal laboratory analysis fee of $50. The requirement is mandatory and failure to impose the fine results in an unauthorized sentence. Therefore, we will order that the fine remain in the judgment.
The following fines, fees and penalties are discretionary, and respondent has forfeited its right to challenge the trial court's failure to impose the fines:
1. $500 restitution and parole revocation fines. (§§ 1202.4, 1202.45.) Section 1202.4 requires trial courts to impose a restitution fine unless the court "finds compelling and extraordinary reasons for not doing so, and states those reasons on the record." (§ 1202.4, subd. (b).) When a restitution fine is imposed, section 1202.45 requires an additional fine that is suspended unless parole is later revoked. Because there are circumstances under which the fines are not required, the fine is discretionary. (People v. Tillman, supra, 22 Cal.4th at pp. 302-303.)
2. Victim restitution. (§ 1202.4, subd. (f).) Section 1202.4, subdivision (f) requires the trial court to order direct restitution to the victim in the full amount of his or her economic loss, unless the court finds "compelling and extraordinary reasons for not doing so, and states them on the record." As with the restitution fee, there are circumstances under which victim restitution is not required by law; victim restitution is discretionary. (See People v. Tillman, supra, 22 Cal.4th at pp. 302-303.)
When the victim's economic losses cannot be ascertained at the time of sentencing, the trial court retains jurisdiction "for purposes of imposing or modifying restitution until such time as the losses may be determined." (§ 1202.46.) In this case, however, there was no determination that the losses could not be ascertained at sentencing or even that the victim suffered any economic loss.
3. Probation investigation fee. (§ 1203.1b.) Section 1203.1b authorizes a court to impose a probation investigation fee based on a determination of the defendant's ability to pay. Therefore, the fee is discretionary. (See People v. Valtakis (2003) 105 Cal.App.4th 1066, 1070, 1072.)
4. Driver's license revocation. (Veh. Code, § 13357.) Vehicle Code section 13357 provides for DMV suspension of the driver's license of a person convicted of unlawfully taking or driving a vehicle. The trial court may recommend such a suspension if it makes certain factual findings. Therefore, the suspension is discretionary.
5. Participation in drug program. (§ 1203.096.) Section 1203.096 provides that the trial court shall recommend that the defendant participate in a substance abuse counseling program while imprisoned if the court makes at least one of four specified findings. Therefore, the order is discretionary.
6. Drug program fee. (Health & Saf. Code, § 11372.7, subd. (a).) Health and Safety Code section 11372.7, subdivisions (a) and (b) provide that the trial court shall impose a $150 drug program fee for every conviction of an offense under the Health and Safety Code, provided that the court finds that the defendant has the ability to pay. Therefore, the fine is discretionary.
DISPOSITION
The trial court is directed to correct the sentencing minute order and the abstract of judgment by deleting the $500 restitution fine (§ 1202.4) and parole revocation fine (§ 1202.45), the $1,885 probation investigation fee (§ 1203.1b), the order of restitution to Steven Quintin (§ 1202.4, subd. (f)), the order that Quintana surrender his driver's license and revoking his driving privilege for one year (Veh. Code, § 13357), the order regarding participation in a drug program (§ 1203.096), and the Health and Safety Code drug program fee (Health & Saf. Code, § 11372.7, subd. (a)). The trial court is further directed to strike from the abstract of judgment the order imposing a $190 laboratory fee (Health & Saf. Code, § 11372.5, subd. (a)) and a $570 drug program fee (Health & Saf. Code, § 11372.7, subd. (a).) The clerk's minute order and abstract of judgment shall retain the order that Quintana provide buccal swab samples, DNA testing, right thumbprints, and a full palm print at the request of the Department of Corrections and Rehabilitation (§ 296, subd. (a)(1)). The abstract of judgment shall also retain the order that Quintana pay a $50 criminal laboratory analysis fee. The court shall forward a certified copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: GILBERT, P.J., YEGAN, J.
After trial, CALCRIM No. 400 was modified twice resulting in the elimination of the "equally guilty" language. In August 2009, it was revised to include brackets around the term "equally." The Bench Notes state that the word "equally" should be used only in accordance with People v. McCoy (2001) 25 Cal.4th 1111, and People v. Samaniego (2009) 172 Cal.App.4th 1148. (Bench Notes to CALCRIM No. 400 (2009-2010 ed.) p. 167.) In April 2010, the instruction was revised to eliminate the word "equally" altogether. (Bench Notes to CALCRIM No. 400 (Apr. 2010 Supp.) p. 28.)