Opinion
E051823 Super.Ct.No. FWV902771
12-20-2011
THE PEOPLE, Plaintiff and Respondent, v. PATRICK MANNIX GRIFFIN, Defendant and Appellant.
Daniel G. Koryn, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Garrett Beaumont, and Sharon L. Rhodes, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of San Bernardino County. Jon D. Ferguson, Judge. Affirmed.
Daniel G. Koryn, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Garrett Beaumont, and Sharon L. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Patrick Mannix Griffin appeals after he was convicted of several crimes arising from an incident in which he stole a car, engaged in a high-speed chase, and crashed into another vehicle, injuring the driver. Defendant attacks the sentence and an enhancement allegation: He contends that the prosecutor failed to prove that his out-of-state conviction qualified as a strike prior, and he also contends that a great bodily injury enhancement cannot properly be alleged in connection with a charge of taking and driving a vehicle. We affirm.
FACTS AND PROCEDURAL HISTORY
On November 3, 2009, about 1:30 p.m., Laron James stopped his Toyota Camry at a gas station in Rancho Cucamonga. He left the keys in the car while he went into the mini-market, and when he returned the car was gone.
About 10 minutes later, at 1:40 p.m., sheriff's deputy Reginald Pahia was driving in a marked law enforcement truck eastbound on Arrow Route near Archibald Avenue, when the stolen Camry pulled out of a shopping mall directly across his path. Deputy Pahia had to slam on the brakes to avoid a collision. Deputy Pahia radioed to dispatch that he intended to make a traffic stop of the Camry that had failed to yield to oncoming traffic. Deputy Pahia made a U-turn and pulled in behind defendant in the Camry, where defendant had stopped at a red light in a westbound lane. Deputy Pahia activated the overhead lights on his truck; defendant sped through the red-light intersection, continuing westbound on Arrow Route. Deputy Pahia also turned on the siren and began to chase defendant.
Defendant drove in the two-way center turn lane at a high rate of speed and ran a red light at another intersection without slowing. Deputy Pahia estimated that defendant was driving at 80 miles per hour. Defendant continued westbound on Arrow Route, passing a school and a park; there, his speed reached nearly 100 miles per hour. At the intersection of Arrow Route and Vineyard Avenue, defendant ran another red light, but this time he broadsided a vehicle, a Hyundai being driven by Jessica Garcia. The impact launched the Hyundai into the air. It rolled on a nearby hill and crashed against a tree. The collision also disabled defendant's stolen Camry.
Deputy Pahia approached the crashed Camry with his gun drawn, and ordered defendant to show his hands. Defendant was slow to comply, so the deputy pepper-sprayed him. Defendant crawled out the window and resisted the efforts of other officers on the scene, who tried to arrest him. Eventually, defendant was subdued and taken into custody.
In the meantime, Garcia was found unconscious inside the wrecked Hyundai. She was rescued and taken by ambulance to the hospital, where she remained in a coma for nearly two months with injuries to her brain. Garcia, who was only 19 years old at the time of the accident, has had a difficult recovery from her severe injuries. She suffered partial paralysis on her right side, and receives physical therapy, occupational therapy, and speech therapy treatments each week. She must walk with a cane because her right leg does not move properly.
Law enforcement officers investigating the incident reviewed surveillance footage at the gas station where the car was taken. Defendant could be seen hanging around the gas station before the car was stolen. After James had parked the car and gone into the mini-market, the video showed defendant walking from the patio area toward the gas pumps. The video also showed defendant standing next to James's car.
A blood sample drawn from defendant about an hour after the collision showed that defendant's blood-alcohol level was 0.11 percent. The criminalist who analyzed the sample opined that defendant's blood-alcohol level at the time of the accident was 0.12 percent. Defendant stated in a police interview that he had been drinking beers all day, since approximately 7:00 a.m. Defendant also admitted having gone to the gas station and bought a beer there. He remembered sitting in the patio area for about 30 minutes to an hour that day, but claimed to have no memory of taking the car or of the chase and crash.
Defendant was charged with evading an officer (Veh. Code, § 2800.3, subd. (a)) (count 1), driving while under the influence, causing injury (Veh. Code, § 23153, subd. (a)) (count 2), driving with a blood-alcohol level over 0.08 percent, causing injury (Veh. Code, § 23153, subd. (b)) (count 3), and unlawful taking or driving a vehicle (Veh. Code, § 10851, subd. (a)) (count 4). The information also alleged in connection with counts 2, 3 and 4 (driving under the influence, causing injury; driving with a blood-alcohol level over 0.08 percent, causing injury; and taking or driving a vehicle) that defendant personally inflicted great bodily injury (GBI) on Garcia. The information alleged as to all counts that defendant had suffered a previous serious or violent felony strike conviction, consisting of a 2005 conviction in Ohio, and the same conviction was alleged as a prior serious felony five-year enhancement under Penal Code section 667, subdivision (a)(1).
Defendant was tried by a jury and found guilty on all four counts; the jury also found the allegations (as to counts 2, 3 and 4) of personal infliction of GBI to be true. In a separate proceeding, the trial court found that defendant's prior out-of-state conviction was a qualifying serious felony and a strike prior. The jury found that defendant had been convicted of the prior crime. The court selected count 1 as the principal count. The aggravated term of seven years on count 1 was doubled to 14 years. On count 2, the court imposed a consecutive term of 16 months plus one year eight months for the GBI enhancement, also consecutive. On count 3, the court imposed the middle term, 16 months, stayed pursuant to Penal Code section 654, and also stayed the sentence of one year eight months on the GBI enhancement on count 3. As to count 4, the court imposed a 16-month sentence, consecutive to count 2, plus one year eight months on the GBI allegation, and stayed the GBI enhancement sentence. Finally, the court imposed a five-year sentence for defendant's prior serious felony enhancement. Defendant's total aggregate unstayed sentence was therefore 23 years four months.
Defendant now appeals.
ANALYSIS
I. Sufficient Evidence Supports the Trial Court's Finding That Defendant's Ohio Third
Degree Robbery Conviction Qualified as a Serious or Violent Felony Strike Conviction
Defendant was convicted in 2005 in Ohio of robbery in the third degree. Defendant contends that the trial court erred in finding that this conviction qualified as a strike prior, because the least adjudicated elements of the Ohio conviction did not contain all the elements of an offense in California which would qualify as a strike. Defendant argues that he should not have received a two-strike sentence.
"To qualify as a serious felony [strike], a conviction from another jurisdiction must involve conduct that would qualify as a serious felony in California." (People v. Avery (2002) 27 Cal.4th 49, 53; see Pen. Code, §§ 667.5, subd. (f) & 1170.12, subd. (b)(2).) The court, not the jury, makes the determination whether all the elements are met. (People v. McGee (2006) 38 Cal.4th 682, 695.) The jury's role is limited to determining whether the defendant has suffered the prior conviction. (Ibid.)
"[T]he relevant inquiry in deciding whether a particular prior conviction qualifies as a serious felony for California sentencing purposes is limited to an examination of the record of the prior criminal proceeding to determine the nature or basis of the crime of which the defendant was convicted." (People v. McGee, supra, 38 Cal.4th 682, 691.) Here, the record of defendant's prior conviction consisted of the Ohio indictment, a journal entry reflecting defendant's guilty plea, a journal entry about defendant's sentencing proceeding, and a prison packet from the Ohio Department of Rehabilitation and Correction.
The indictment alleged that defendant "on or about the 16th day of January, 2005, . . . did commit the crime of ROBBERY in that he did in attempting or committing a theft offense or in fleeing immediately after the attempt or offense inflict, or threaten physical harm on another to wit: Acme Click employees in violation of Section 2911.02 (A)(2) of the Ohio Revised Code, A FELONY OF THE SECOND DEGREE."
On March 30, 2005, defendant pleaded guilty to the lesser included offense of robbery, a third degree felony. On April 27, 2005, defendant was sentenced to one year in custody of the Ohio Department of Rehabilitation and Correction and ordered to pay $3,000 in restitution.
Ohio Revised Code Annotated section 2911.02 defines robbery as follows:
"§ 2911.02. Robbery
"(A) No person, in attempting or committing a theft offense or in fleeing immediately after the attempt or offense, shall do any of the following:
"(1) Have a deadly weapon on or about the offender's person or under the offender's control;
"(2) Inflict, attempt to inflict, or threaten to inflict physical harm on another; "(3) Use or threaten the immediate use of force against another.
"(B) Whoever violates this section is guilty of robbery. A violation of division (A)(1) or (2) of this section is a felony of the second degree. A violation of division (A)(3) of this section is a felony of the third degree.
"(C) As used in this section:
"(1) 'Deadly weapon' has the same meaning as in section 2923.11 of the Revised Code.
Ohio Revised Code Annotated section 2923.11 defines "deadly weapon" as follows:
"§ 2923.11. Definitions
"As used in sections 2923.11 to 2923.24 of the Revised Code:
"(2) 'Theft offense' has the same meaning as in section 2913.01 of the Revised Code."
Ohio has a broad and general theft statute, encompassing numerous types of theft.The Ohio theft statute enumerates robbery as one of the types of theft proscribed. Conversely, the robbery statute has incorporated the general requirements of theft into the definition of the crime. One element of a theft offense in Ohio is "that there must be purpose to deprive the owner of property." (State v. Ballard (1984) 14 Ohio.App.3d 59, 60 [469 N.E.2d 1334, 1336].) Theft also requires that the taking of the property must occur at the same time as the intent or purpose to deprive the owner of the property. (Id. at p. 61 [469 N.E.2d 1334, 1336].) Robbery includes an element of force. (Ibid.; see also State v. Echols (2001) 146 Ohio.App.3d 81, 87 [765 N.E.2d 379, 383] ["Robbery requires proof of an attempt or commission of a theft or flight immediately after the attempt or commission, and the use or threatened use of immediate force against another [fn. omitted]."].)
Ohio Revised Code Annotated section 2913.01 defines "theft offense" as follows:
"(K) 'Theft offense' means any of the following:
"(1) A violation of section 2911.01 [aggravated robbery], 2911.02 [robbery], 2911.11 [aggravated burglary], 2911.12 [burglary], 2911.13 [breaking and entering], 2911.31 [safecracking], 2911.32 [tampering with coin machines], 2913.02 [theft], 2913.03 [unauthorized use of a vehicle], 2913.04 [unauthorized use of property (computer, cable, telecommunication)], 2913.041 [possession of an unauthorized cable television device], 2913.05 [telecommunications fraud], 2913.06 [unlawful use of a telecommunication device], 2913.11 [passing bad checks], 2913.21 [misuse of credit cards], 2913.31 [forgery, identification card], 2913.32 [criminal simulation], 2913.33 [making or using slugs], 2913.34 [trademark counterfeiting], 2913.40 [Medicaid fraud], 2913.42 [record tampering], 2913.43 [securing writings by deception], 2913.44 [impersonating an officer], 2913.45 [defrauding creditors], 2913.47 [insurance fraud], 2913.48 [worker's compensation fraud], former section 2913.47 [insurance fraud] or 2913.48 [workers' compensation fraud], or section 2913.51 [receiving stolen property], 2915.05 [cheating or corrupting sports], or 2921.41 [theft in office] of the Revised Code;
"(2) A violation of an existing or former municipal ordinance or law of this or any other state, or of the United States, substantially equivalent to any section listed in division (K)(1) of this section or a violation of section 2913.41, 2913.81, or 2915.06 of the Revised Code as it existed prior to July 1, 1996;
"(3) An offense under an existing or former municipal ordinance or law of this or any other state, or of the United States, involving robbery, burglary, breaking and entering, theft, embezzlement, wrongful conversion, forgery, counterfeiting, deceit, or fraud;
"(4) A conspiracy or attempt to commit, or complicity in committing, any offense under division (K)(1), (2), or (3) of this section."
Ohio Revised Code Annotated section 2913.02 defines theft of various kinds, as follows:
"§ 2913.02. Theft [Effective until September 30, 2011]
"(A) No person, with purpose to deprive the owner of property or services, shall knowingly obtain or exert control over either the property or services in any of the following ways:
"(1) Without the consent of the owner or person authorized to give consent; "(2) Beyond the scope of the express or implied consent of the owner or person authorized to give consent;
"(3) By deception;
"(4) By threat;
"(5) By intimidation.
"(B) (1) Whoever violates this section is guilty of theft.
"(2) Except as otherwise provided in this division or division (B)(3), (4), (5), (6), (7), or (8) of this section, a violation of this section is petty theft, a misdemeanor of the first degree. If the value of the property or services stolen is five hundred dollars or more and is less than five thousand dollars or if the property stolen is any of the property listed in section 2913.71 of the Revised Code, a violation of this section is theft, a felony of the fifth degree. If the value of the property or services stolen is five thousand dollars or more and is less than one hundred thousand dollars, a violation of this section is grand theft, a felony of the fourth degree. If the value of the property or services stolen is one hundred thousand dollars or more and is less than five hundred thousand dollars, a violation of this section is aggravated theft, a felony of the third degree. If the value of the property or services is five hundred thousand dollars or more and is less than one million dollars, a violation of this section is aggravated theft, a felony of the second degree. If the value of the property or services stolen is one million dollars or more, a violation of this section is aggravated theft of one million dollars or more, a felony of the first degree.
"(3) Except as otherwise provided in division (B)(4), (5), (6), (7), or (8) of this section, if the victim of the offense is an elderly person or disabled adult, a violation of this section is theft from an elderly person or disabled adult, and division (B)(3) of this section applies. Except as otherwise provided in this division, theft from an elderly person or disabled adult is a felony of the fifth degree. If the value of the property or services stolen is five hundred dollars or more and is less than five thousand dollars, theft from an elderly person or disabled adult is a felony of the fourth degree. If the value of the property or services stolen is five thousand dollars or more and is less than twenty-five thousand dollars, theft from an elderly person or disabled adult is a felony of the third degree. If the value of the property or services stolen is twenty-five thousand dollars or more and is less than one hundred thousand dollars, theft from an elderly person or disabled adult is a felony of the second degree. If the value of the property or services stolen is one hundred thousand dollars or more, theft from an elderly person or disabled adult is a felony of the first degree.
"(4) If the property stolen is a firearm or dangerous ordnance, a violation of this section is grand theft. Except as otherwise provided in this division, grand theft when the property stolen is a firearm or dangerous ordnance is a felony of the third degree, and there is a presumption in favor of the court imposing a prison term for the offense. If the firearm or dangerous ordnance was stolen from a federally licensed firearms dealer, grand theft when the property stolen is a firearm or dangerous ordnance is a felony of the first degree. The offender shall serve a prison term imposed for grand theft when the property stolen is a firearm or dangerous ordnance consecutively to any other prison term or mandatory prison term previously or subsequently imposed upon the offender.
"(5) If the property stolen is a motor vehicle, a violation of this section is grand theft of a motor vehicle, a felony of the fourth degree.
"(6) If the property stolen is any dangerous drug, a violation of this section is theft of drugs, a felony of the fourth degree, or, if the offender previously has been convicted of a felony drug abuse offense, a felony of the third degree.
"(7) If the property stolen is a police dog or horse or an assistance dog and the offender knows or should know that the property stolen is a police dog or horse or an assistance dog, a violation of this section is theft of a police dog or horse or an assistance dog, a felony of the third degree.
"(8) If the property stolen is anhydrous ammonia, a violation of this section is theft of anhydrous ammonia, a felony of the third degree.
"(9) In addition to the penalties described in division (B)(2) of this section, if the offender committed the violation by causing a motor vehicle to leave the premises of an establishment at which gasoline is offered for retail sale without the offender making full payment for gasoline that was dispensed into the fuel tank of the motor vehicle or into another container, the court may do one of the following:
"(a) Unless division (B)(9)(b) of this section applies, suspend for not more than six months the offender's driver's license, probationary driver's license, commercial driver's license, temporary instruction permit, or nonresident operating privilege;
"(b) If the offender's driver's license, probationary driver's license, commercial driver's license, temporary instruction permit, or nonresident operating privilege has previously been suspended pursuant to division (B)(9)(a) of this section, impose a class seven suspension of the offender's license, permit, or privilege from the range specified in division (A)(7) of section 4510.02 of the Revised Code, provided that the suspension shall be for at least six months.
"(10) In addition to the penalties described in division (B)(2) of this section, if the offender committed the violation by stealing rented property or rental services, the court may order that the offender make restitution pursuant to section 2929.18 or 2929.28 of the Revised Code. Restitution may include, but is not limited to, the cost of repairing or replacing the stolen property, or the cost of repairing the stolen property and any loss of revenue resulting from deprivation of the property due to theft of rental services that is less than or equal to the actual value of the property at the time it was rented. Evidence of intent to commit theft of rented property or rental services shall be determined pursuant to the provisions of section 2913.72 of the Revised Code.
"(C) The sentencing court that suspends an offender's license, permit, or nonresident operating privilege under division (B)(9) of this section may grant the offender limited driving privileges during the period of the suspension in accordance with Chapter 4510. of the Revised Code."
The California robbery statute defines the crime as: "the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (Pen. Code, § 211.)
As with the Ohio statute, robbery in California requires the taking of property from another, with the purpose of depriving the owner of the property, and includes an element of use of force or fear to accomplish the taking. The thrust of defendant's contention here has to do with the nature or definition of the required "deprivation" of property. While California precedents have used language indicating that robbery "requires the specific intent to permanently deprive the victim of his or her property," (People v. Mumm (2002) 98 Cal.App.4th 812, 817, italics added), defendant urges that the Ohio formulation does not require "permanent" deprivation of property. He points to the Ohio statutory definition of "deprive," and posits that it does not necessarily specify "permanent" deprivation of property:
"(C) 'Deprive' means to do any of the following:
"(1) Withhold property of another permanently, or for a period that appropriates a substantial portion of its value or use, or with purpose to restore it only upon payment of a reward or other consideration;
"(2) Dispose of property so as to make it unlikely that the owner will recover it;
"(3) Accept, use, or appropriate money, property, or services, with purpose not to give proper consideration in return for the money, property, or services, and without reasonable justification or excuse for not giving proper consideration." (Ohio Rev. Code Ann., § 2913.01, subd. (C).)
The California Supreme Court has stated, however, that the phrase—to "permanently" deprive the owner of property—should not be interpreted too literally. (People v. Davis (1998) 19 Cal.4th 301, 307, quoting Perkins & Boyce, Criminal Law (3d ed. 1982) p. 327 ["The word 'permanently,' as used here is not to be taken literally"].) In People v. Davis, supra, 19 Cal.4th 301, the court held that the proper intent to steal (or "permanent deprivation" of property) is present if a defendant (1) intends to "sell" the property back to the owner, (2) intends to claim a reward for "finding" the property, or (3) intends to return the property to the owner for a "refund." The requisite intent to steal is also present when the defendant intends to use the property temporarily, but abandons it in circumstances making it unlikely that the owner will recover the property, or when the nature of the property taken is such that even a temporary taking will deprive the owner of its primary economic value. (Id. at p. 307, & fn. 4.) In addition, a "temporary" taking of property, which is nevertheless for such an extended period that the owner is deprived of a major portion of its value or enjoyment, is also sufficient to satisfy the intent to steal requirement. (See People v. Avery, supra, 27 Cal.4th at pp. 52, 57, 58.)
All of these circumstances, under California law, are sufficient to satisfy the "intent to steal" element of theft-related offenses, including robbery. (See People v. Montoya (2004) 33 Cal.4th 1031, 1037 [Theft and robbery have the same felonious taking element, which is the intent to steal, or to feloniously deprive the owner permanently of his or her property.].)
The measures of control over property which are sufficient to satisfy the intent to steal element under California law are the same measures of control over property which are specified in the Ohio theft statute, as outlined above. Therefore, the trial court below properly determined that defendant's Ohio third degree robbery conviction contained the equivalent elements to a felony strike conviction for robbery in California; defendant's Ohio conviction constituted a serious felony and a strike under California law.
II. The Trial Court Properly Denied Defendant's Motion to Strike the Great Bodily
Injury Enhancement as to the "Unlawful Taking or Driving a Vehicle" Conviction in
Count 4
Defendant contends that Penal Code section 12022.7, a great bodily injury enhancement, cannot properly attach to the charge of unlawful taking or driving a vehicle (Veh. Code, § 10851, subd. (a)) as alleged in count 4. Defendant urges that, of his four convictions, count 1 (evading an officer causing injury) pertained to his flight from Deputy Pahia in the stolen car, counts 2 and 3 (driving under the influence, causing injury, and driving with a blood-alcohol level over 0.08 percent, causing injury, respectively) pertained to his driving under the influence of alcohol and causing bodily injury to the victim, Jessica Garcia, while count 4 (unlawful taking or driving a vehicle) "pertained to the taking of Laron James' Toyota Camry."
Defendant's trial counsel objected to applying the GBI enhancement to count 4, arguing that it typically applies to crimes of violence. The prosecutor argued that such an enhancement had been applied in a case of receiving stolen property, a nonviolent crime. (See People v. Johnson (1980) 104 Cal.App.3d 598.) The court overruled the objection, without prejudice to raising the matter again should it become relevant at sentencing.
Penal Code section 12022.7, subdivision (b), provides: "(b) Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony which causes the victim to become comatose due to brain injury or to suffer paralysis of a permanent nature, shall be punished by an additional and consecutive term of imprisonment in the state prison for five years. As used in this subdivision, "paralysis" means a major or complete loss of motor function resulting from injury to the nervous system or to a muscular mechanism."
The statute applies, on its face, to the commission of any felony or attempted felony. There is no intent exhibited in the wording to limit the enhancement to the commission of inherently violent felonies. Moreover, defendant's argument focuses on a limited aspect of the charged crime: He argues that the victim could not logically be injured and rendered comatose from the mere "taking" of the vehicle. Defendant here did far more than "take" James's car. Vehicle Code section 10851 also proscribes unlawful driving of a vehicle. Defendant was most certainly driving the car at the time of the accident, and that reckless driving was the direct cause of the victim's injuries. In addition, without the "taking," it would not have been possible for him to have inflicted the injuries.
Defendant complains that the court improperly relied on People v. Johnson, supra, 104 Cal.App.3d 598, because the crime of receiving stolen property is a "continuing" crime, which does not end until the perpetrator reaches a place of safety. (Id. at p. 608.) However, as the People point out, defendant's conviction was not predicated on the "taking" aspect, but on the "driving" aspect of Vehicle Code section 10851. The nature of the crime—driving without the owner's consent—is continuous or continuing so long as the defendant unlawfully drives the vehicle. (People v. Garza (2005) 35 Cal.4th 866, 871; People v. Frye (1994) 28 Cal.App.4th 1080, 1086-1087.)
The trial court properly denied defendant's motion to strike the enhancement as to the conviction under Vehicle Code section 10851.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J.
We concur:
RAMIREZ
P. J.
CODRINGTON
J.
"(A) 'Deadly weapon' means any instrument, device, or thing capable of inflicting death, and designed or specially adapted for use as a weapon, or possessed, carried, or used as a weapon."