Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA282464, Anita H. Dymant, Judge. Reversed in part, affirmed in part.
Gideon Margolis, 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, Assistant Attorney General, Steven D. Matthews and G. Tracey Letteau, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
SUZUKAWA, J.
Shaun Gregory Field (appellant) was convicted by a jury of two counts of carjacking (Pen. Code, § 215, subd. (a)), evading a peace officer (Veh. Code, § 2800.2, subd. (a)), and second degree commercial burglary (§ 459). In a subsequent court trial, the court found that he had suffered three prior convictions within the meaning of section 667, subdivisions (b) through (i) and 1170.12, subdivisions (a) through (d), and two prior serious felony convictions within the meaning of section 667, subdivision (a)(1). He was sentenced to 85 years to life in prison. He appeals, contending that the court failed to properly instruct the jury on the target offenses of the burglary, there is insufficient evidence to support the conviction for evading a peace officer, and the court improperly imposed consecutive sentences for the carjacking and burglary counts. We reverse the conviction for evading a peace officer, but affirm the judgment in all other respects.
All further undesignated statutory references are to the Penal Code unless otherwise indicated.
The jury was unable to reach a verdict on an assault with a deadly weapon charge. (§ 245, subd. (a)(1).)
FACTUAL AND PROCEDURAL BACKGROUND
In April 2005, Lisa Abbattista was working at Bark Avenue, a dog daycare, grooming facility, and rescue organization located on Hill Street in Los Angeles. Abbattista, the kennel manager, lived on-site in an apartment. Abbattista had known appellant since they met at a Salvation Army rehabilitation home, and she had recommended him for a job at Bark Avenue. Appellant was hired as a night watchman. About two weeks later, appellant was reprimanded by a manager for failing to show up for work, and Abbattista felt that he was not taking his job seriously. At one point, appellant believed Abbattista “had called his parole officer on him, ” and he told her, “If you call my parole officer on me, I would have to kill you.” Abbattista informed the manager and executive director of Bark Avenue about appellant’s threat. Appellant was terminated shortly thereafter. A few days after he was terminated, Abbattista saw appellant’s vehicle parked in front of the business and called a police officer whom she knew. The officer later told Abbattista that he contacted appellant, and told him he was not supposed to be in that area.
On April 23, 2005, at approximately 6 p.m., Abbattista heard the night bell ring, looked through a window, and saw appellant. Appellant asked whether Robert, another employee, was there and whether Robert had the $50 that he owed appellant. Abbattista said she would get Robert, but when she turned around, she heard what sounded like the door cracking. She saw that appellant had entered the building with two men. Abbattista tried to run but appellant grabbed her by the arm and ordered the two men to hold her down. The men pinned her against the wall and appellant punched Abbattista in the eye, saying, “[Y]ou think you’re going to get away with calling the police on me[?]” He then struck Abbattista three to four more times in the right eye. When Abbattista tried to escape, appellant stabbed her in the head with a corkscrew approximately four times. The other two men fled. Abbattista went into the kennel building, found Robert, told him that appellant had tried to kill her, and called 911. After officers arrived, Abbattista noticed that a metal cash box, which typically contained $150, was missing. Abbattista was shown a photographic lineup by police, and she identified appellant as her attacker.
At approximately 6:30 or 7:00 p.m., Maria Lozano was driving a Ford Aerostar van in the vicinity of Adams Boulevard and Main Street in downtown Los Angeles. While she was stopped at a traffic light, she saw appellant knock on the window of another van. Appellant was carrying some kind of a box covered in what looked like a towel. When the driver of the first van did not roll down the window, appellant then approached Lozano’s vehicle and told her to get out of the van. He hit her closed window with his fist and the window broke. Appellant opened the door and told Lozano to get out. When she did not, he sat on her lap and drove the van until it hit a truck. Some people helped her out of the van and appellant drove off. Someone called 911 to report the incident to the police, as Lozano does not speak English.
At around 7:00 p.m., Maricela Torres was driving in the area of Washington and Figueroa Streets in Los Angeles in her black 1989 Ford Aerostar with license plate number 2NXX191. As she was stopped at a light, someone approached her on foot on the passenger side and ordered her out. Torres was scared because it looked like the man had a weapon in his jacket pocket. He was also carrying a silver box which was covered in a shirt or some material. The man pushed her out of the van and drove her vehicle away.
In the early evening hours of April 23, 2005, Marta Alvarez was at her home on 35th Street in Los Angeles. Her mother’s car was parked in front of the house. Alvarez heard screeching and saw a van speeding down her street. The van struck her mother’s car and sped off. Alvarez reported the incident to a 911 operator, and gave her the license plate number of the van. The number matched the plate on Torres’s Aerostar.
Los Angeles Police Officer Heidi Stoecklein and her partner were on patrol in a marked police vehicle on Crenshaw Boulevard. They were aware that a van with the license plate number of 2NXX191 had been involved in a hit-and-run collision. Officer Stoecklein saw a van with that license plate number traveling at a high rate of speed with its bumper dragging. She turned on her overhead lights and siren. The van continued to travel at 45 to 60 miles per hour until it collided with another vehicle. It then sped off again, and traveled on the wrong side of the road. Officer Miguel Salcedo-Mata and his partner joined the pursuit with red lights and sirens on. When the van finally stopped, appellant, the driver and sole occupant, was taken into custody. He said, “I am the guy you’re looking for, ” to Officer John Redican, and later said, “I was going to fucking kill that bitch but because of my religion I decided not to.”
Officer Uruttia looked inside the van and found a black jacket and a metal cash box wrapped in a pillow case. The box was brought to Abbattista, who identified it as the one belonging to Bark Avenue.
The corkscrew was never recovered.
At a pretrial lineup, Torres identified a person other than appellant as the individual who stole her van. At the preliminary hearing and at trial, she identified appellant. Lozano was unable to identify appellant from a pretrial photographic lineup, but identified him in court.
Appellant represented himself at trial. He called as witnesses three of the investigating officers on the case, Officer Jose Bonilla, Detective Warren Porche, and Sergeant Adrienne Legaspi. He questioned them about the discrepancies in the witnesses’ description of the suspect and their failure to identify him at photographic lineups. He also called his parole officer, Manya Washington, who testified that appellant complained about the problems he was having with Abbattista prior to the incident. Appellant also attempted to impeach the witnesses, principally Abbattista, by asking her questions about her prior drug use, her prior relationship with appellant, and her romantic relationship with Robert.
DISCUSSION
I. The Failure to Give an Instruction on Theft Was Harmless
Appellant was charged with burglary under two theories. He entered the building with the intent to commit either theft or an assault with a deadly weapon. The court instructed the jury that the prosecution had to prove that appellant entered the building with the intent to commit either crime. Although the jury was instructed on the specific elements of assault with a deadly weapon, it did not receive any further definition of the term “theft.” Appellant and the Attorney General agree the trial court erred. They disagree as to whether the error was prejudicial.
The parties point to the seminal case of People v. Failla (1966) 64 Cal.2d 560 (Failla) and conclude the trial court was required to further define the element of theft in the burglary instruction. On our facts, we are not convinced. In Failla, the defendant was accused of entering five homes. In each instance, he confronted the female occupant and either stated or implied that he wanted to engage in some form of sexual activity or touched the victim in a sexual manner. The jury was instructed “that one who enters an apartment with intent to commit theft ‘or any felony’ is guilty of burglary; a second instruction likewise told the jury that a necessary element of burglary is a specific intent to commit theft ‘or any felony.’ No other instructions on burglary were requested or given.” (Id. at pp. 563-564.) Thus, the trial court did not define any of the possible felonies that the defendant might have intended to commit at the time of entry. In our case, of course, the trial court did the opposite. It defined the only alleged felony, but failed to define the misdemeanor offense.
The Failla court did not question the failure of the trial court to define theft. It cited the case of People v. Corral (1943) 60 Cal.App.2d 66, 72 (Corral), which rejected an argument similar to that made by appellant. In Corral, the court instructed the jury that a person who entered a building to commit theft was guilty of burglary. The defendant contended that the court should have further defined theft by instructing the jury on the different acts that could constitute theft. The Corral court concluded that further instruction was unnecessary as the only possible type of theft that was shown by the evidence was larceny, the evidence clearly showed the defendant had the intent to commit that crime, and the jury could not have misunderstood the instruction that was given.
In distinguishing Corral, the Failla panel stated: “But where the evidence permits an inference that the defendant at the time of entry intended to commit one or more felonies and also an inference that his intent was merely to commit one or more misdemeanors or acts not punishable as crimes, the court must define ‘felony’ and must instruct the jury which acts, among those which the jury could infer the defendant intended to commit, amount to felonies. Failure to do so is error, for it allows the triers of fact to indulge in unguided speculation as to what kinds of criminal conduct are serious enough to warrant punishment as felonies and incorporation into the burglary statute.” (Failla, supra, 64 Cal.2d at p. 564.) The other cases relied on by appellant also found error where the trial court failed to define the felony mentioned in the burglary instruction. (People v. Hughes (2002) 27 Cal.4th 287, 348 [court failed to define rape]; (People v. Smith (1978) 78 Cal.App.3d 698, 708 [court failed to define assault by means of force likely to produce great bodily injury].)
Under the facts of our case, while the court should have provided the jury with a definition of theft, we conclude the failure to do so was not prejudicial. The evidence clearly established that appellant committed theft after he entered the building. He knew the cash box was used to store money during business hours and overnight. Appellant carried the cash box with him after he left the location, and maintained possession of it during the commission of two separate carjackings and a police pursuit. As in Corral, the only form of theft shown by the evidence was theft by larceny.
Assuming the failure to define the term “theft” was error, we cannot fathom how the jury could have misunderstood the burglary instruction. Unlike other complex definitions of crimes, the simple concept of theft is readily understood. The only element of theft of which a jury might not be aware is the requirement that the perpetrator intend to permanently deprive the owner of the property. As explained above, there can be no question appellant committed the crime of theft. The only question was whether he had the intent to commit the crime at the time he entered the premises. The jury was properly told that to be guilty of burglary, appellant had to have the intent to commit a theft at the time of entry. Any perceived instructional error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18.)
Appellant tries to demonstrate prejudice by implying that the evidence showed that he could have decided to take the cash box after he entered the building. In addition, he may have gone to the location to collect the money Robert owed him. If the jury had a reasonable doubt as to either scenario, the burglary instruction given clearly informed it that appellant was not guilty. Nonetheless, he argues “there [is] no way for [this] Court to ‘determine what the jury understood or found to be true in arriving at its verdict.’” We disagree. We cannot see how the evidence permits an inference that there was any other criminal act intended by appellant other than theft or assault, nor does he mention one. As we have discussed, the jury understood that appellant had to intend to commit either crime at the time he entered the building. His claim of prejudice fails.
II. There Is Insufficient Evidence to Sustain Appellant’s Conviction for Evading a Peace Officer
Vehicle Code section 2800.2, evading a peace officer, requires that the peace officer must be driving a distinctively marked vehicle and wearing “a distinctive uniform.” (Veh. Code, § 2800.1, subd. (a)(4).) Appellant argues there was insufficient evidence for the jury to conclude that the officers were wearing a uniform during the pursuit.
The People concede that there was no evidence that Officers Stoecklein and Mata were in uniform during their pursuit of appellant, and agree that the conviction in count 5 must be reversed. We concur.
III. The Trial Court Properly Sentenced Appellant to Consecutive Terms
At sentencing the court stated: “With regard to the issue of consecutive versus concurrent, the consecutive sentences in a Three-Strikes case, as this is, are mandated by law if they fall under one of the two following categories: either there are separate victims or — because it could even be the same incident with separate victims — or separate incidents on separate occasions. And the — that is required. That is not a discretionary call. The only thing that the court has discretion on is determining whether something is multiple victims or the separate incident on separate occasion. So my discretion simply comes into determining what the facts are, but once I have made a determination about the facts, unless I have determined that I have the discretion to impose concurrent sentences, I am required to impose consecutive. So with regard to count 3, which is the . . . carjacking as to victim Lozano, the court has determined that that is a separate incident, separate crime from count 4 with victim Torres, the other carjacking. Those are separate incidents, and they are separate victims. So the court is going to have to run those consecutively. With respect to count 8 — I am jumping ahead for a minute — that is the second degree burglary or commercial burglary of the animal facility . . . . That is a separate incident from the other two. It involves a different victim, different location and different — at a different time. So that will have to run consecutively. The one that the court gave a lot of thought to was count 5, which was the evading. Essentially, from the time that [appellant] carjacks Miss Torres’ car in count 4, there becomes a flight essentially, as I recall, with the police following, and that is the 2800.2. That, to me, factually, is part of the same incident, and it’s — it doesn’t really have different victims in the sense that 2800.2 doesn’t really — isn’t really a . . . named victim issue. It’s not like the defendant crashed into somebody and injured somebody. He’s, essentially, fleeing the scene of the carjacking. So it’s the court’s determination that count 5, the court does have discretion as to whether to run the sentence concurrently or consecutively. And based on the very substantial sentence that the court is required to give, not that it’s not warranted, the court has determined that count 5 should run concurrently.”
The court then sentenced appellant to 25 years to life on count 3 (the Lozano carjacking), with a consecutive term of 25 years to life on count 4 (the Torres carjacking) and another consecutive term of 25 years to life on count 8 (the burglary), a concurrent term of 25 years to life on count 5 (evading a police officer), and an additional 10 years for the two section 667, subdivision (a) enhancements.
Appellant contends that the trial court was not required to impose the sentences in counts 4 and 8 consecutive to the sentence in count 3, and had the discretion to impose concurrent sentences. He asserts the court erroneously concluded that because there were separate victims, it had a mandatory duty to impose consecutive sentences. He also argues that count 4 did not have to be imposed consecutively to count 3 because carjacking is a continuous crime. He claims that the second carjacking necessarily arose from the same set of operative facts.
Section 667, subdivision (c)(6) requires consecutive sentences for defendants when there are current serious or violent felony offenses which are not committed on the same occasion and do not arise from the same set of operative facts. The phrase “not committed on the same occasion” means “not committed within close temporal and spa[t]ial proximity of one another.” (People v. Lawrence (2000) 24 Cal.4th 219, 233 (Lawrence).) The phrase “not arising from the same set of operative facts” means “not sharing common acts or criminal conduct that serves to establish the elements of the current felony offenses of which defendant stands convicted.” (Ibid.)
Appellant claims “the evidence shows that [his] offenses were all committed on the same occasion because all were committed close in time to each other and in one general location.” He asserts “[t]he record also shows that the crimes in the instant case arose from the same set of operative facts.” According to appellant, the crime spree grew out of “[his] sole purpose of avoiding detection and apprehension” for his assault on Ms. Abbattista. We disagree.
The Supreme Court rejected a similar argument in Lawrence. In that case, the defendant stole brandy from a Stater Brothers market. When he was observed by a store clerk, Lawrence ran from the store and knocked an elderly man to the ground. A short while later, he was confronted while trespassing in the backyard of a residence which was about one block east and one block north of the Stater Brothers market. While Lawrence was struggling with the male owner of the house, the owner’s fiancé attempted to intervene. Lawrence struck her in the head with the brandy bottle. Lawrence was charged with felony assault on the fiancé. He was sentenced consecutively under the Three Strikes law for the felony theft and assault counts.
The Supreme Court determined that the two crimes were perpetrated at different locations and at different times. Thus, they were not “committed on the same occasion” within the meaning of section 667, subdivision (c)(6). (People v. Lawrence, supra, 24 Cal.4th at pp. 229-230.) The court also found that the offenses did not arise “from the same set of operative facts.” Although, Lawrence was still in flight from the theft of the brandy, he chose to commit separate and different crimes that did not share common elements or criminal conduct with the theft. (Id. at pp. 233-234.)
Such is the case here. Although the exact times are not known, it is clear that appellant arrived at Bark Avenue and completed the commission of his crimes at that location. Notwithstanding appellant’s claims to the contrary, he did not need to carjack a vehicle to escape. He could have escaped on foot or left with his two accomplices. He stole Lozano’s van at an unrelated location. After he crashed her van, he carjacked Torres’s van at another unrelated location, some distance away from where he had taken Lozano’s van. Each crime represented a separate incident with separate objectives perpetrated against different victims. None of the crimes shared common criminal conduct during their commission. Each carjack was committed after the crime that preceded it was completed. As to appellant’s claim the second carjack was a continuation of the first, there was no evidence the second carjack facilitated the first in any way. The trial court properly concluded that it was required to sentence appellant consecutively for the three crimes.
We do not agree with appellant’s claim that the court had the mistaken belief that consecutive sentences were mandatory simply because there were separate victims. The court noted that crimes could arise out of “the same incident with separate victims.” The court’s statement of reasons clearly indicates that it understood the test was whether the crimes were separated by location and time and shared common acts or conduct. In fact, the court determined that the evading arose from the same set of operative facts as the second carjack, and imposed a concurrent sentence for that offense. There was no error.
DISPOSITION
The conviction for evading a peace officer in count 5 (Veh. Code, § 2800.2) is reversed and the concurrent sentence of 25 years to life imposed for that count is vacated. The clerk of the court is directed to modify the abstract of judgment accordingly and to forward a copy of the corrected abstract to the Department of Corrections. In all other respects, the judgment is affirmed.
We concur: EPSTEIN, P. J. WILLHITE, J.