Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County, No. FSB048287, J. Michael Welch, Judge.
Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Jeffrey J. Koch and Rhonda Cartwright-Ladendorf, Supervising Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P. J.
INTRODUCTION
David Rodriguez Almarez (defendant) argues on appeal that there was insufficient evidence to support the element of fear or force necessary to sustain his conviction for carjacking. We disagree and will affirm.
FACTS AND PROCEDURAL HISTORY
Ronald Alexander (Alexander or the victim) awoke about 6:00 a.m., on February 11, 2005, and went out to the driveway of his Redlands home to pick up the morning newspaper. As Alexander, still “half asleep,” bent down behind his white Lexus, the car started. This event “just blew [Alexander] away.” He walked to the driver’s side of his car and opened the door a little. As he did so, a loud voice from inside the car said, “Get out of here.” Alexander was “very much frightened and scared” by the loud voice. He thought that whoever was in the car might run over him or stop and attack him, and he was “terrified.” As Alexander backed away, he stumbled and fell into the street, scraping his hand and knees. After the car took off, Alexander yelled to his wife to call 911.
The victim was unable to give police a detailed description of the person who took his car because he had been unable to see him very well. It was still very dark when he went to pick up the paper; there were no streetlights on; he did not have his glasses on; and he was backing away as he opened the car door. Alexander did tell the police that he thought the person was Hispanic and was wearing a dark hat of some kind.
The driver of the stolen car, whom police were later able to identify as defendant, led them on a high-speed chase through the City of Highland. Defendant drove about 90 miles per hour and ran a number of red lights before he crashed into a sign and landed in a field. After the crash, defendant jumped out of the car and attempted to run away; about 15 minutes later, police found him lying face down in the wet grass in the field.
Alexander was able to identify his car at the scene of the crash. He removed some of his personal property from the car. Other property found in the car had been stolen from the GMC Yukon of another Redlands resident, Delbert Powell, sometime during the night. A dark beanie-style cap was found on the floor of the car.
On June 8, 2006, a jury convicted defendant of carjacking (Pen. Code, § 215, subd. (a), count 1); of willfully evading an officer (Veh. Code, § 2800.2, subd. (a), count 2); and of petty theft (Pen. Code, § 488, a lesser included offense of the crime of grand theft charged in count 3). On June 13, the jury also found true, as to counts 1 and 2, allegations that defendant had been convicted of a prior serious felony (Pen. Code, § 667, subd. (a)(1)), and of a prior serious and violent felony (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).
On March 2, 2007, the trial court sentenced defendant to 16 years 4 months in state prison: five years for count 1, doubled because of the prior strike; plus a consecutive eight months for count 2, also doubled because of the prior strike; plus a consecutive five-year enhancement for the priors.
DISCUSSION
Standard of Review:
When a defendant challenges the sufficiency of the evidence to support his conviction, an appellate court reviews the entire record to determine whether the evidence is sufficient to permit a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of the crime in question. (Jackson v. Virginia (1979) 443 U.S. 307, 317-320.) In making this determination, the reviewing court views the evidence in the light most favorable to the prosecution and presumes every fact that could reasonably be deduced to support the judgment. (Id. at p. 319.) The determination involves a two-step procedure: First, we resolve the issue in light of the whole record; second, we judge whether the evidence for each of the essential elements is substantial. “‘[I]t is not enough for the respondent simply to point to “some” evidence supporting the finding, for “Not every surface conflict of evidence remains substantial in the light of other facts.”’” (People v. Johnson (1980) 26 Cal.3d 557, 577.) The trier of fact weighs the evidence and determines the credibility of witnesses. To set aside a judgment of conviction, it must be “clearly shown there is no basis on which the evidence can support the conclusion of the jury.” (People v. Cardenas (1994) 21 Cal.App.4th 927, 938.)
Carjacking:
“‘Carjacking’ is the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence . . . 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.” (Pen. Code, § 215, subd. (a).) In order to successfully prove a carjacking, the prosecution must show that the victim was in fact afraid and that his fear was reasonable. (People v. Cuevas (2001) 89 Cal.App.4th 689, 698.) So long as there is circumstantial evidence from which fear may be inferred, the victim need not explicitly testify that he was afraid. (Ibid.)
Here, both elements of the crime of carjacking were supported by the evidence. Alexander’s car was taken from his immediate presence, while he was standing next to it. In his effort to retain possession of the stolen car, defendant led police on a dangerous high-speed chase for several miles; the theft was foiled only by his accident.
Moreover, both the taking and the continued possession were accomplished by means of fear. (People v. O’Neil (1997) 56 Cal.App.4th 1126, 1131.) First, the victim explicitly, credibly, testified that he was in fact afraid. He said he was “terrified” by the loud voice ordering him to “get out of here” coming from inside his car. He thought the person taking the car might run over him or stop and attack him. Secondly, the circumstances were certainly such that fear could be inferred and that it was a reasonable fear. It was 6:00 o’clock in the morning, a time when no one expects to see or hear a total stranger starting one’s car parked in the driveway of one’s own home; defendant started the car while the owner was behind it, bent down, picking up a newspaper—a scary event in its own right; and when Alexander opened the car door to see what was going on the person inside yelled at him in a loud voice to “get out.” All of this amounted not merely to “some” evidence, but to such substantial evidence, that if Alexander had never testified at all regarding his fear, the jury could have inferred it, beyond a reasonable doubt, from the circumstances. (People v. Cuevas, supra,89 Cal.App.4th at p. 698.)
DISPOSITION
The judgment is affirmed.
We concur: GAUT, J., MILLER, J.