Opinion
C082147
03-27-2017
THE PEOPLE, Plaintiff and Respondent, v. STUART GORDEN DOUGLAS, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 62132042)
Defendant Stuart Gorden Douglas appeals his convictions for attempted carjacking and making criminal threats after he pulled a gun on repossession agents attempting to repossess his recreational vehicle. He contends there was insufficient evidence to support his carjacking conviction. The People properly concede this claim. Defendant also claims the trial court prejudicially erred in failing to instruct the jury on the legal definition of "permanent residency" as related to a recreational vehicle. This issue is moot in view of our reversal of the carjacking charge.
We reverse the attempted carjacking conviction and remand for resentencing.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
In late 2004, defendant purchased a recreational vehicle (RV) with financing from Inova Federal Credit Union. In February 2013, Inova Federal Credit Union sent Daybreak Metro, a repossession agency, an order to repossess the RV. The repossession order indicated defendant was "[l]iving in the area in RV with girlfriend," and that defendant had previously filed for bankruptcy but that filing had been dismissed. Kirk Mattiuzzi, the CEO of Daybreak Metro, went to the location with two of his employees, Fawzi Alfares and Lerron Payne. Alfares and Payne were also licensed repossession agents.
Mattiuzzi, Payne, and Alfares drove to the address together. Payne and Mattiuzzi knocked on the door of the RV and Alfares stood behind them. Payne and Mattiuzzi identified themselves to defendant and gave him the repossession order. Defendant came out of the RV to talk to Mattiuzzi and Payne. They spoke for about 15 minutes. Defendant also called his attorney to "straighten things out." After some discussion, Mattiuzzi asked for the keys to the RV and defendant gave them to Payne, who gave them to Alfares. Mattiuzzi testified that if the RV is in a mobile home park and being used as a home or an "actual residence," then the repossession agency has to have the person evicted prior to repossessing the RV. He did not observe anything that made him believe that he needed to institute eviction proceedings, rather than a repossession. Payne also testified that if an RV is primarily used as a permanent residence, the owner must be evicted prior to repossession. He did not see anything indicating the RV was being used as a permanent residence; he did not see that the RV was hooked up to anything, and the RV appeared to be in drivable condition.
Alfares did not identify himself as a repossession agent. Alfares walked around the RV. He did not see any hookups, water lines, power lines, or septic lines connected to the RV and he did not disconnect anything. Alfares went into the RV and locked the door behind him. The RV was empty. Alfares sat in the driver's seat, examined the area, and prepared to drive the vehicle. He put the key in the ignition, and defendant appeared. Defendant pointed a gun at Alfares and said, "Do you know what this is?" Then he stuck the gun to the side of Alfares's head. Alfares put his hands in the air; he was scared for his life. Defendant said, "get the fuck out." Alfares ran out of the RV saying, "[t]hat mother fucker just held a gun to my head." Mattiuzzi, Payne, and Alfares walked behind a building and called the sheriff.
Deputy Christopher Carlton responded to the call. He would not allow Mattiuzzi to take the RV. Defendant told Carlton when he was on the phone with his attorney he heard his girlfriend Laura Johnson scream that there was a man inside the RV. He entered the RV and told the man he had a gun. Although defendant owned a gun, he had not pointed it at any person in the RV. In a subsequent interview the next day, defendant claimed Alfares had assaulted Johnson, in that he had pushed her out of the RV and shut the door on her arm. Carlton told defendant Johnson had not told him that she was assaulted, and defendant recanted his claim.
Defendant testified he and Johnson lived in the RV on the property near an automotive shop that was being rehabilitated. The RV was hooked up to a cable for television, water, propane, gray water, and electricity. The awning was out and the stabilizers were down. He claimed two of the repossession agents knocked on his door. He went out to speak with them and try to remedy the situation as he thought it was covered by his bankruptcy filings. Johnson was in bed. Defendant gave Payne the keys as a gesture of good faith, although he also felt threatened by the men. The repossession agents were discussing how to move the RV when defendant heard Johnson scream. He saw Johnson and a third man lying on top of a motorcycle, and Johnson said someone had gone into the garage. Defendant did not know if this was another repossession agent and thought it was possibly a thief. When he saw the man fumbling with the keys in the driver's seat, he realized it was one of the repossession agents and showed him the gun and said, "You know what this is?" and put the gun down. Then he told the man, "Get the truck [sic] out."
Deputy Carlton saw wires from the building attached to the RV. Defendant's friend Jon DeRoco testified the RV was hooked up to electricity and, he believed, water, but he did not think it was connected to sewer. He did not know if it was connected to propane. He said the RV had been at the address for at least a few months.
Defendant was charged with attempted carjacking and making criminal threats, as to both counts the information also alleged defendant personally used a handgun in committing the offenses. The jury found defendant guilty of both counts, and found both enhancement allegations true. The trial court sentenced defendant to the middle term of two years six months on the attempted carjacking, with a consecutive 10-year term for the gun enhancement, and stayed the sentence on the criminal threats conviction pursuant to Penal Code section 654.
The trial court granted the prosecution's motion to dismiss an attempted second degree robbery charge. --------
DISCUSSION
I
The Attempted Carjacking Conviction Must Be Reversed
Defendant contends his conviction for attempted carjacking must be reversed as there is insufficient evidence he intended to " 'take' " or " 'move' " the RV. The People properly concede this point.
Where, as here, a defendant challenges the sufficiency of the evidence to support his conviction, "[t]he standard of review is well settled: On appeal, we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence -- that is, evidence that is reasonable, credible and of solid value -- from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] ' "[I]f the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder." ' " (People v. Snow (2003) 30 Cal.4th 43, 66.) "Before the judgment of the trial court can be set aside for the insufficiency of the evidence, it must clearly appear that on no hypothesis whatever is there sufficient substantial evidence to support the verdict of the [finder of fact]." (People v. Hicks (1982) 128 Cal.App.3d 423, 429.) This is such a case.
" 'Carjacking' is the felonious taking of a motor vehicle in the possession of another, from his or her person . . . 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).) An attempt to commit a crime requires specific intent to commit the target crime and a direct but ineffectual act done towards its commission. (People v. Swain (1996) 12 Cal.4th 593, 604.) The felonious taking element of carjacking requires the movement or asportation of the vehicle. (People v. Lopez (2003) 31 Cal.4th 1051, 1063.) Forcibly removing the victim from a motor vehicle does not satisfy the taking requirement. (Id. at p. 1063.)
Here, there is no evidence defendant intended to take or move the RV. Defendant had been living in his RV at this location for months. Defendant was not arrested on the day of the attempted repossession. He was allowed to go back to his RV and spend the night there and he did. Within hours of the attempted repossession, defendant's attorney filed bankruptcy proceedings on defendant's behalf, which resulted in a stay on any repossession efforts. Defendant testified it was his intent to continue to live at the same location where the RV was parked. He did not, in fact, move the RV until at least two months after the attempted repossession. We cannot find there is substantial evidence defendant intended a felonious taking of the RV. Accordingly, we must reverse his conviction for attempted carjacking.
II
Instruction Defining "Permanent Residency"
Defendant contends the trial court prejudicially erred in "failing to properly instruct the jury on the definition of 'permanent residency.' " (Capitalization omitted.) With regard to the attempted carjacking charge there was testimony that if the RV was a permanent residence, the eviction process must be followed before repossession. In the course of deliberations, the jury sent the trial judge a question, "What constitutes the definition of permanent residency for specifically an RV?" Defendant argues, "How is the jury expected to determine whether the law afforded any protection from repossession to appellant, without instruction on that law?"
However, the issue of whether eviction proceedings were needed to be instituted in this case prior to repossession is only relevant to the charge of attempted carjacking, which is being reversed for insufficient evidence.
Therefore, the claim of instructional error is moot.
DISPOSITION
The conviction for criminal threats is affirmed. The conviction for attempted carjacking and the enhancement is reversed. The matter is remanded to the trial court for resentencing on the criminal threats charge and the enhancement.
/s/_________
Robie, Acting P. J. We concur: /s/_________
Butz, J. /s/_________
Murray, J.