Opinion
E064265
03-15-2017
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL ANTHONY ALEMAN, Defendant and Appellant.
Gregory L. Cannon, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Kristine Gutierrez and Joy Utomi, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FVI1304040) OPINION APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin, Judge. Affirmed in part with directions; reversed in part. Gregory L. Cannon, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Kristine Gutierrez and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.
FACTUAL AND PROCEDURAL HISTORY
A. PROCEDURAL HISTORY
On March 13, 2014, a first amended information charged defendant and appellant Michael Anthony Aleman with carjacking under Penal Code section 215, subdivision (a) (count 1); assault with a deadly weapon under Penal Code section 245, subdivision (a)(1) (count 2); and assault by means of force likely to produce great bodily injury under Penal Code section 245, subdivision (a)(4) (count 3). The information also alleged that defendant committed the offenses for the benefit of a criminal street gang under Penal Code section 186.22, subdivision (b)(1). The information further alleged that defendant suffered two prior serious felonies under Penal Code sections 1170.12 and 667, and served three prior prison terms under Penal Code section 667.5, subdivision (b).
On March 26, 2014, a jury found defendant guilty of carjacking and two counts of simple assault as the lesser-included offenses to the charged offenses in counts 2 and 3. The jury found the gang enhancements not true. In a bifurcated proceeding, defendant admitted that he had two prior strikes and had served two prior prison terms. The trial court sentenced defendant to a total indeterminate prison term of 35 years to life. The court also found that a motor vehicle was involved in the commission of the offense and ordered defendant's driver's license revoked under Vehicle Code section 13350.
On August 26, 2016, defendant filed a timely amended notice of appeal.
B. FACTUAL HISTORY
On December 10, 2013, defendant's girlfriend, Jane Doe, flagged down a UPS driver and asked him to call 911. Doe was bleeding from her nose and was frantic. Doe told the 911 operator that defendant had beaten her and taken Doe's car. Doe explained that defendant, an ex-boyfriend, had asked Doe for a ride to a friend's home. At some point they both got out of the car. Defendant grabbed Doe's keys, pushed her, and jumped into the driver's seat. As defendant started to drive, Doe jumped into the back seat of her car. As defendant drove, he reached back and started hitting and punching Doe. He grabbed Doe's head and put her in a headlock as he punched her. He then grabbed her by the hair and repeatedly slammed her head into the car's rear window until the window shattered. Defendant then stopped the car, grabbed Doe, and dragged her through the broken window. He slammed her to the ground and kicked her in the head and stomach. Defendant then got back in Doe's car and drove away.
Doe suffered from a laceration on her head, a bruised and bleeding nose, bruising and redness on her eye and abdomen, a cut on her finger, and neck pain.
The next day, deputies found defendant in Victorville. He had Doe's car keys in his possession. Deputies found Doe's car at a church parking lot in Apple Valley; the rear back window was shattered.
San Bernardino County Sheriff's Deputy Ryan Brosowske interviewed defendant at the Victorville Police station. Defendant told Deputy Ryan that the night before the incident, he and Doe were together in a hotel room. Defendant stated that he got angry after Doe came back to the hotel room late with a hickey on her neck. Defendant stated that the next morning, the two of them drove to a friend's house and got into an argument. He admitted that he tried to drive away with Doe's car but claimed it was because she was throwing his belongings out of the car. Defendant admitted that he put Doe in a headlock, but claimed it was because she pulled the hood of his sweatshirt over his eyes while he was driving. He stated that when he stopped the car and tried to pull Doe out of the car, the two fell on the ground and Doe accidentally hit her head. Defendant claimed that he tried to see if Doe was okay but decided to get back in the car and drive away. He further claimed that he came back to check on her but that she was gone.
Doe visited defendant in jail after he was arrested. Their recorded conversations were played for the jury. During the first visit, defendant apologized for hurting Doe. He said he did not mean to hurt her but "flipped out" because he thought that Doe was cheating on him. Defendant told Doe that the only way he could "get out of this" was if Doe told the prosecutor that she did not want to press charges. Doe stated that she already tried that. She then stated she was going to go "MIA" and refuse to testify in court. Defendant informed Doe that that was not enough because Doe had already made statements to the police. He told Doe that she would have to come to court to tell "them" that she had lied about what happened and was high at the time. Defendant told Doe to just tell the "truth" noting that "they're listening to us right now." Defendant again told Doe to do everything she could to get him out because he was facing a life sentence. He then apologized again for hurting Doe and asked for forgiveness.
During Doe's second visit to defendant, Doe told him that she was subpoenaed to testify at his trial, and that she told "them" that she did not want to press charges against defendant and would not testify. Defendant told Doe that she should let them know that during the incident she had flipped out because she had not taken her anxiety medication and that defendant was only trying to help her out. Doe responded, "okay." Defendant told Doe the story was, essentially, that Doe was acting crazy because she was high on drugs or off her medications, that she hit her head due to an accidental fall, and that he was only trying to help her. Defendant told Doe that he left the scene at Doe's request to get her something to drink. He then told Doe to just "stick to that, you know, you didn't take your medication."
Doe and defendant testified at trial. They made statements similar to those made during the recorded jailhouse conversations. Defendant added that he had permission to drive Doe's car.
DISCUSSION
A. REVOCATION OF DEFENDANT'S DRIVING PRIVILEGES
Defendant contends that the Department of Motor Vehicles (DMV), not the trial court, has the authority to revoke a driver's license. He also claims that the court's factual finding was insufficient to trigger revocation by the DMV under Vehicle Code section 13350 because it stated that a vehicle was "involved" instead of "used" in the commission of the crime.
Vehicle Code section 13350 provides, in pertinent part: "(a) The department immediately shall revoke the privilege of a person to drive a motor vehicle upon receipt of a duly certified abstract of the record of a court showing that the person has been convicted of any of the following crimes or offenses: [¶] . . . [¶] (2) A felony in the commission of which a motor vehicle is used, except as provided in [Vehicle Code s]ection[s] 13351, 13352, or 13357.)" (§ 13350, subd. (a)(2), italics added.)
We agree with defendant and the People that the plain language of Vehicle Code section 13350 expressly states that the DMV, not the trial court, has the authority to revoke a driver's license. In People v. Linares (2003) 105 Cal.App.4th 1196, 1199, the court stated that "driving [is] a privilege, not a right, and license revocation [is] a civil, not a criminal, sanction. [Citation.] We also recognize the DMV, not the court, is empowered to revoke a driver's license." (Id. at p. 1199, citing In re Grayden N. (1997) 55 Cal.App.4th 598, 604.) The court's order revoking defendant's driver's license is reversed.
The next question, therefore, is whether the DMV must revoke defendant's license. The California Supreme Court has described the DMV's revocation of a driver's license as required by statute as an "administrative act in performing a mandatory function." (Larsen v. Dept. of Motor Vehicles (1995) 12 Cal.4th 278, 284, quoting Thomas v. Dept. of Motor Vehicles (1970) 3 Cal.3d 335, 338.) To perform that function, the DMV must receive a certified abstract of the court record showing that the defendant was convicted of an enumerated offense or any "felony" in the commission of which a motor vehicle is used. (Veh. Code, § 13350.) Defendant argues that the court's factual finding in this case was insufficient to trigger revocation under Vehicle Code section 13350 because it stated that the vehicle was "involved" rather than "used" in the commission of the crime. In People v. Poindexter (1989) 210 Cal.App.3d 803, 808, we stated: "Likewise, in the context of Vehicle Code section 13350, the Legislature must have intended the term 'used' in the commission of a felony to mean that there was a nexus between the offense and the vehicle, not merely that a vehicle was incidental to the crime."
In this case, defendant was convicted of one count of carjacking and two counts of simple assault. At the sentencing hearing on August 14, 2015, the trial court found that "there was a motor vehicle involved in the commission of this offense" and ordered defendant's driver license revoked under Vehicle Code section 13350. The sentencing minute order noted that "Pursuant to Sect 13350 VC, the Court finds a motor vehicle WAS used in the commission of the offense specified in Count(s) 1."
Here, the trial court's use of the term "involved" instead of "used" did not establish that the court applied the wrong standard. As we noted in Poindexter, supra, 210 Cal.App.3d at page 808, the proper inquiry in determining the applicability of Vehicle Code section 13350 is whether there is a nexus between the offense and the vehicle. Here, the record shows that defendant used the vehicle as an instrument in the carjacking. In his attempt to steal the car from Doe, defendant grabbed the victim's head and slammed it into the rear window of the car repeatedly until the window shattered. Defendant then exited the car, grabbed Doe, dragged her through the broken glass, and threw her on the ground outside the car. The nexus between the car and the offense is that defendant used the car as a weapon to injure Doe. Accordingly, there was a sufficient nexus between the vehicle and the crime.
Notwithstanding, defendant argues that a vehicle was not "used" in the carjacking because the jury rejected the assault with a deadly weapon charge and found defendant guilty of simple assault. Defendant, however, ignores that in order for defendant to have been found guilty of carjacking, the jury must have found that defendant deprived Doe of her car "by means of force or fear." (§ 215, subd. (a).) In this case, there is substantial evidence in the record to find that defendant used Doe's car—by banging Doe's head against the window then forcefully dragging Doe out of the car—to successfully carjack Doe's vehicle by means of force or fear. The car was not simply "incidental" to the crime of carjacking. Defendant's argument is without merit.
In sum, because there is a sufficient nexus between the car and the commission of the carjacking, the trial court properly found that defendant used a vehicle during the commission of the offense. Hence, the trial court must properly reflect its finding in the minute order and abstract of judgment. In this case, the minute order properly states the court's finding. However, the court failed to include this finding in the abstract of judgment. Therefore, we hereby order the abstract of judgment to be corrected to reflect the trial court's finding that defendant used a car during the commission of the offense.
Defendant contends Penal Code section 654 prohibits multiple punishments for the carjacking (count 1) and the two assault convictions (counts 2 & 3).
1. ADDITIONAL FACTUAL HISTORY
During closing argument, the prosecutor identified a number of facts that established the force or fear element required for a conviction of carjacking. The prosecutor stated that defendant argued the victim was afraid of defendant, following an argument they had. Defendant also used force to commit the carjacking when he grabbed the victim, slammed her head against the car window, pulled her through the car window, and then kicked her in the head and side. As to the assault charge in count 2, the prosecutor argued that defendant grabbed the victim by the hair and slammed her head into the car window. As to the assault charge in count 3, the prosecutor elected the acts of defendant pulling the victim through the broken window, dropping her on the ground, and kicking her in the side.
At sentencing, the trial court sentenced defendant to a prison term of 25 years to life for count 1, and imposed two five-year terms for defendant's prior convictions, for a total term of 35 years to life. As to counts 2 and 3, the court ordered that defendant be credited for time served. The minute order indicates that the court imposed a one-year jail term with credit for time served.
2. SECTION 654
Penal Code section 654 prohibits multiple punishments for different offenses that are committed in the course of a single intent or objective. Penal Code section 654, subdivision (a), provides in pertinent part, "[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision."
"The test for determining whether [Penal Code] section 654 prohibits multiple punishment has long been established: 'Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of [Penal Code] section 654 depends on the intent and objective of the actor.'" (People v. Britt (2004) 32 Cal.4th 944, 951-952.) "[I]f all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once. [Citation.] [¶] If, on the other hand, defendant harbored 'multiple criminal objectives,' which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, 'even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.'" (People v. Harrison (1989) 48 Cal.3d 321, 335.)
The trial court is vested with broad discretion in making the factual determination whether the defendant had separate intents and objectives, which warranted separate punishments under Penal Code section 654. (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.) "A trial court's implied finding that a defendant harbored a separate intent and objective for each offense will be upheld on appeal if it is supported by substantial evidence." (People v. Blake (1998) 68 Cal.App.4th 509, 512.) Under the substantial evidence standard of review, the trial court's determination is reviewed in the light most favorable to the judgment and presumes the existence of every fact the trial court could reasonably deduce from the evidence. (Jones, at p. 1143; People v. Akins (1997) 56 Cal.App.4th 331, 339.)
3. SEPARATE PUNISHMENT WAS PROPER FOR COUNT 3
Defendant contends the sentences for counts 2 and 3 should be stayed because the prosecutor argued that the same acts of force proved the carjacking and the two assaults. We agree as to count 2, and disagree as to count 3.
The issue is whether defendant harbored the same intent and objective during the commission of the three offenses. As to count 2, the evidence showed that shortly after Doe and defendant had been arguing, defendant grabbed Doe's keys and he jumped into the driver's seat of Doe's car. As discussed ante, in order to be guilty of carjacking, defendant must have deprived Doe of her car "by means of force or fear." (Pen. Code, § 215, subd. (a).) One of the ways he accomplished this was by hitting Doe against the window of the car—the same facts used to prosecute defendant on count 2. Therefore, Penal Code section 654 bars multiple punishment for the same act.
As to count 3, the evidence showed that defendant pulled Doe out of the car, threw her to the ground, and then kicked her in the head and stomach. Defendant's act of pulling Doe out of the car is the only conceivable act of force necessary for him to flee with her car. Kicking Doe in the head and stomach was an act of violence in which defendant's intent was distinct and separate from the carjacking. The violence defendant inflicted upon Doe after he had control of the vehicle was a separate act that was not necessary to commit the carjacking, and was not merely incidental to the crime. (People v. Nguyen (1988) 204 Cal.App.3d 181, 190-193.) Accordingly, the trial court properly imposed a sentence on count 3.
Therefore, the sentence on count 2 should be stayed, but the trial court properly imposed a separate sentence on count 3.
C. SENTENCING ERRORS
Defendant contends that three errors in the minute order and abstract of judgment should be corrected.
First, defendant claims that the trial court's minute order erroneously indicated that it found a motor vehicle was used in the commission of count 1. As discussed in detail ante, the trial court properly found that defendant used a motor vehicle. Moreover, the abstract of judgment should be corrected to reflect the trial court's finding under Vehicle Code section 13350.
Second, defendant argues that the minute order should be corrected with regards to counts 2 and 3 because the trial court imposed 365 days on each count, but the maximum penalty under the law is 180 days under Penal Code section 241, subdivision (a). The trial court, however, did not orally impose a sentence on counts 2 and 3 at the sentencing hearing. Moreover, it is unclear whether the court intended to impose the maximum term. Therefore, the matter is remanded for the limited purpose to indicate a sentence on counts 2 and 3.
Third, defendant contends that item number 6(d) of the abstract of judgment erroneously indicates that he was sentenced to 35 years to life on count 1, "PLUS enhancement time shown above." Defendant however, was sentenced to 25 years to life on count 1, plus 10 years for his priors, for a total of 35 years to life. Therefore, the abstract of judgment should be corrected to reflect that defendant was sentenced to 25 years to life on count 1.
DISPOSITION
The trial court's order revoking defendant's driving privileges is reversed. Further, this case is remanded for the trial court to: (1) indicate the length of sentence on counts 2 and 3; (2) stay the sentence on count 2; (3) correct the abstract of judgment to reflect that defendant was sentenced to 25 years to life on count 1; and (4) correct the abstract of judgment to reflect that a motor vehicle was used in the commission of count 1 pursuant to Vehicle Code section 13350. The trial court is directed to prepare an amended abstract of judgment and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: HOLLENHORST
Acting. P. J. SLOUGH
J.