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People v. Hardy

COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
Jan 8, 2020
C084623 (Cal. Ct. App. Jan. 8, 2020)

Opinion

C084623

01-08-2020

THE PEOPLE, Plaintiff and Respondent, v. MICHAEL JAMES HARDY, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15F07574)

Following a jury trial, defendant Michael James Hardy was convicted of two counts of felony unlawfully taking or driving a vehicle (Veh. Code, § 10851, subd. (a)), carjacking (Pen. Code, § 215, subd. (a)), reckless evasion of a police pursuit (Veh. Code, § 2800.2), and possession of methamphetamine (Health & Saf. Code, § 11378). The trial court sentenced defendant to 10 years four months in state prison.

Undesignated statutory references are to the Penal Code.

On appeal, defendant contends the photographic lineup used to identify him was unduly suggestive, it was an abuse of discretion to exclude video evidence depicting his behavior in the back seat of the patrol car after his arrest, and sentencing on one of the unlawful taking or driving counts should have been stayed pursuant to section 654. We shall affirm.

BACKGROUND

November 2015 Incident

Early in the afternoon on November 1, 2015, Ralph F. took one of his tenants to a public storage facility near his rental house. He parked his 2005 Ford Explorer at the storage facility, leaving it unlocked, with the keys in a bag inside the center console and the tailgate down. He and his tenant moved items from the storage unit to the truck. After they were in the storage unit for about six or seven minutes, they returned to find the truck gone and some items from the bed left on the ground.

Ralph F. reported the theft to the facility's manager. Ralph F. viewed the facility's surveillance video, which showed two men in a white car drive through the security gate just after he drove through. The passenger in the white car exited, took the bag with the keys from Ralph F.'s truck, walked to a hallway on the right side of the facility, and then returned to the truck and drove it away. The white car drove out of the facility with his truck following behind. Ralph F. did not recognize either person in the video.

Ryan Haenggi had a storage unit in Sacramento, and went there with defendant in November 2015. He did not really know defendant, who was a friend of his mother's. He and defendant were the two men in the white car. Defendant was the one who drove away in the truck. Haenggi sustained a conviction for vehicle theft as a result of the incident.

Haenggi had a 2012 conviction for a crime involving dishonesty. He testified under subpoena and did not want to be in court.

December 12 and 13 Incidents

On December 12, 2015, around 6:00 a.m., Demetrio G. left his apartment and drove his 2016 Toyota Tacoma to where his Toyota Celica was parked so he could transfer tools from the Celica to the Tacoma to take for his construction job. He left the keys in the Tacoma with the engine running. As Demetrio G. was about to move his boots from his car to his truck, he heard someone say, "Don't move." He turned around and saw a man pointing a gun at him. The man was between five and six feet tall, weighed about 160 pounds, and was wearing black pants and a black hoodie. Demetrio G. turned his back on the man, as he was afraid the man might fire the gun. He heard the gun fire, but he was not shot.

Demetrio G. turned around about six seconds later. He saw the man was inside the truck and driving very fast toward the gate of his apartment complex. He followed the truck on foot and then called the police, who arrived in 10 to 12 minutes. In the 911 call, Demetrio G. described the man who took his truck as like a "light skinned Hispanic" or White, about 160 pounds, 30 to 32 years old, and wearing a black jacket with black pants. He said the gun was short, like a handgun. In his trial testimony, he described the man as light brown and a person who would have White parents.

Sacramento County Sheriff's Deputy Steven Rose heard the call about the carjacking when he was on duty on December 12, 2015. The carjacking was discussed at the morning briefing the following day. While on patrol, Deputy Rose saw a truck that matched the description of the carjacked Tacoma, followed it, and informed dispatch after confirming it was stolen.

The truck pulled over and when Deputy Rose activated his patrol car's overhead lights the Tacoma sped away. Deputy Rose pursued and then activated his siren. During the pursuit, defendant ran two stops signs, drove on a sidewalk, ran a red light, and swerved to avoid hitting a bus. As the truck continued to break traffic laws, it reached a speed of about 100 miles per hour. The truck also made a U-turn and almost hit two other cars, drove into a park and onto a soccer field, and drove through two fences.

The driver, defendant, eventually abandoned the truck and ran through a school. Deputy Joe Duran and another deputy continued the pursuit on foot. Deputy Duran could not follow after defendant jumped a fence but Deputy Sam Flores kept after him. Defendant stopped when Deputy Flores commanded him to. Defendant was arrested and the truck was searched, but nothing was found.

A search of defendant found a bag containing 12.3 grams of methamphetamine. Defendant also had the keys to the truck on a string around his neck. As he was being booked, defendant told a deputy, "Yesterday, I was going down 47th, and you didn't catch me." A search of defendant at the jail found 0.2 of a gram of methamphetamine in a baggie in his sock.

Sacramento Police Officer Jonathan Gresham met Demetrio G. on December 14, 2015. Demetrio G. told Officer Gresham he got a good look at the attacker's face, a light-skinned male who was about 30 years old and around five feet six inches tall.

Officer Gresham already had defendant in mind as a suspect, as he had been arrested in Demetrio G.'s stolen truck. The officer obtained a photograph of defendant and created a six-pack photographic lineup with a computer program designed for that purpose. The program generates pictures similar to the subject. Demetrio G. was given the standard admonishment before being shown the photographic lineup. He was shown the photographs one at a time. He identified defendant as the perpetrator. At trial, Demetrio G. said he was 80 percent sure the person he identified in the photographic lineup was the person who took his truck.

Defendant is five feet seven inches tall and weighs 165 pounds.

The Defense

Sacramento Police Officer Michael Hight was dispatched to the carjacking. He assisted in canvassing the area, but found no evidence or witnesses.

Sacramento Police Officer Patrick Mulligan interviewed Demetrio G. the same day. The victim described the gun as a black revolver. Police canvassed the area for witnesses but did not find any.

The video surveillance system in Demetrio G.'s apartment complex did not have coverage for the area where the carjacking occurred.

DISCUSSION

I

Defendant contends the photographic lineup in which the victim of the carjacking identified him as the perpetrator was unduly suggestive, a violation of his due process rights. We disagree.

Defendant made an in limine motion to exclude evidence of Demetrio G.'s out-of-court identification of defendant in the photographic lineup and any identification of defendant by Demetrio G. in court. Trial counsel argued the lineup was impermissibly suggestive because the other five men in the lineup were Hispanic while defendant was White, the other men had Hispanic surnames, they looked older than defendant, and defendant's face looked larger in the frame of the photograph than the men did in the other five photographs. The trial court denied the motion, finding that showing the photographs one at a time to the witness was a more effective method of identification, all six subjects had the same pose and appeared to have the same age, all or most of the men had facial hair, and they all looked the same.

Demetrio G. was unable to identify defendant at trial.

" 'In order to determine whether the admission of identification evidence violates a defendant's right to due process of law, we consider (1) whether the identification procedure was unduly suggestive and unnecessary, and, if so, (2) whether the identification itself was nevertheless reliable under the totality of the circumstances, taking into account such factors as the opportunity of the witness to view the suspect at the time of the offense, the witness's degree of attention at the time of the offense, the accuracy of his or her prior description of the suspect, the level of certainty demonstrated at the time of the identification, and the lapse of time between the offense and the identification.' [Citation.] It is the defendant's burden to demonstrate the existence of an unreliable identification procedure. (Ibid.) 'We review deferentially the trial court's findings of historical fact, especially those that turn on credibility determinations, but we independently review the trial court's ruling regarding whether, under those facts, a pretrial identification procedure was unduly suggestive.' [Citation.]" (People v. Lucas (2014) 60 Cal.4th 153, 235, disapproved on another ground in People v. Romero and Self (2015) 62 Cal.4th 1, 53, fn. 19.)

" '[T]he law does not require a perfect lineup, only that it be a lineup that is a fair one, and that it not be impermissibly suggestive. . . .' " (People v. Lucas, supra, 60 Cal.4th at p. 236.) "[W]e have recognized that ' "[b]ecause human beings do not look exactly alike, differences are inevitable" ' and the primary concern ' "is whether anything caused defendant to 'stand out' from the others in a way that would suggest the witness should select him." ' [Citation.]" (Id. at p. 237.) If "we find that the challenged procedure was not unduly suggestive, our inquiry into the due process claim ends. [Citation.]" (People v. Virgil (2011) 51 Cal.4th 1210, 1256.)

Defendant asserts the other five subjects were Hispanic while he is White, he appears to be the youngest person in the lineup, his complexion appears to be lighter than four of the other five men, the majority of the men look heavier than he and heavier than the 160 pounds estimated by the victim. In addition, he claims his photograph stood out significantly because his appears to be more zoomed in, making his face appear larger and more close up than the other photographs. From these factors, he concludes the lineup was unduly suggestive, a violation of his due process rights.

Demetrio G. gave two slightly different descriptions of the perpetrator before the lineup. In his 911 call he described the carjacker as either light-skinned Hispanic or White, weighing about 160 pounds, and 30 to 32 years old. Later, he told Officer Gresham that the carjacker was a light-skinned male who was about 30 years old and around five feet six inches tall. Defendant, as shown in the photograph used in the lineup, fits both descriptions. His complexion and black hair is consistent with him being either White or a Hispanic man with a lighter complexion. While the other five men in the lineup had Hispanic surnames, the subjects' names were not provided in the lineup. Defendant's complexion is lighter than most of the subjects, but not uniquely so. As defendant admits, his "complexion in his photo appears to be lighter than the men in all the other photos except for the man in Photo Number Four." While some of the men look heavier than him, his weight does not make him stand out as unique.

We do not agree with defendant's characterization of him appearing to be the youngest person in the lineup; all six subjects fit the victim's description of a man aged 30 to 32. While defendant's photograph is more zoomed in, we do not find this as suggestive as defendant asserts. Any possible improper influence from this (or any other aspect of the lineup) was minimized by the fact that Demetrio G. did not view all of the photographs at once, but individually in succession from numbers 1 to 6. Defendant was identified after Demetrio G. was shown his photograph as the third in succession. Nonetheless, he was shown the remaining three, ensuring a fairer and more accurate identification procedure. The trial court relied in particular on this last aspect, and so do we. Defendant has failed in carrying his burden of showing the lineup was unduly suggestive.

II

Defendant contends the trial court abused its discretion and violated his due process right to present a defense when it excluded video evidence of him in the patrol car after his arrest.

Defendant moved to admit six video clips of him in the patrol car after his apprehension following the police pursuit. The clips run for six minutes 58 seconds, one minute 18 seconds, two minutes 12 seconds, 27 seconds, three minutes 17 seconds, and 56 seconds. There is an approximately 12-minute gap between the first and second videos, and a two-minute gap between the second and third, seven minutes between the third and the fourth, four minutes between the fourth and fifth, and 12 minutes between the fifth and sixth.

During the videos, defendant at times repeatedly says, "I'm going to kill myself" and "I'm going to kill everyone." He also says in the first clip, "I'm going to kill everybody and kill myself. I'm supposed to do that, he told me to do it."

Defendant also said soon thereafter: "He's not talking to you. No, he's not talking to you but he's talking to me. He's talking to me, just don't talk to him. Because he's not talking to you but he's talking to me. Well he (inaudible) he told me to drive—I didn't tell him to drive. I told you not to talk to me bro. (Inaudible) kill him and then kill myself. Make sure you kill yourself. Okay then you can kill yourself to[o], and then I'll kill me. Shut up bro I'm not talking to you [Mumbling/Groaning]."

Elsewhere, defendant said he was supposed to kill himself, but it did not work. He also stated, "[w]as just doing what they told me. They (inaudible) operated." Later in the recording, in the fifth video clip, defendant stated that he had a broken arm and really had to urinate. During this portion, defendant appeared to be in considerable pain. Defendant's eyes are closed during significant portions of the videos; at one point in the third clip, he lies down in the patrol car and says he cannot breathe. He is unresponsive when he is given Miranda warnings in the last clip.

Miranda v. Arizona (1966) 384 U.S. 436. --------

Defendant moved to admit the clips as evidence he was intoxicated by methamphetamine in support of a voluntary intoxication defense to the felony evasion charge. The trial court initially found the videos were not relevant to show intoxication, and instead may have shown defendant was out of breath and feeling a surge of adrenaline following the chase, may have had a mental illness, or was in pain from his arm and being handcuffed. After, defense counsel informed the court that methamphetamine was found on defendant, his behavior was consistent with methamphetamine intoxication, and he had been found competent to stand trial. The trial court found the evidence was nonetheless inadmissible as it would lead the jury to speculate to reach a conclusion that defendant was intoxicated.

"No evidence is admissible except relevant evidence" (Evid. Code, § 350), and "[e]xcept as otherwise provided by statute, all relevant evidence is admissible" (Evid. Code, § 351). Evidence is relevant if it has "any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.)

One exception to the admissibility of relevant evidence is section 352 of the Evidence Code, which provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." This section "permits the trial judge to strike a careful balance between the probative value of the evidence and the danger of prejudice, confusion and undue time consumption," but "requires that the danger of these evils substantially outweigh the probative value of the evidence. This balance is particularly delicate and critical where what is at stake is a criminal defendant's liberty." (People v. Lavergne (1971) 4 Cal.3d 735, 744.) Accordingly, "Evidence Code section 352 must bow to the due process right of a defendant to a fair trial and his [or her] right to present all relevant evidence of significant probative value to his [or her] defense. [Citations.] Of course, the proffered evidence must have more than slight relevancy to the issues presented. [Citation.]" (People v. Burrell-Hart (1987) 192 Cal.App.3d 593, 599.)

An appellate court reviews a trial court's rulings under Evidence Code section 352 for abuse of discretion, and will reverse only if the court " ' "exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." [Citation.]' [Citation.]" (People v. Merriman (2014) 60 Cal.4th 1, 74.)

Reckless evasion is a specific intent crime. (Veh. Code, §§ 2800.2, subd. (a) [defines crime as committing violation of § 2800.1 with willful or wanton disregard for persons or property], 2800.1, subd. (a) ["Any person who, while operating a motor vehicle and with the intent to evade, willfully flees or otherwise attempts to elude a pursuing peace officer's motor vehicle"].) Voluntary intoxication is admissible on whether a defendant formed the required specific intent (Pen. Code, § 29.4, subd. (b)), and a voluntary intoxication instruction was given regarding the specific intent of reckless evasion.

As the trial court correctly observed, defendant's behavior during the video, while erratic, was consistent with several states in addition to intoxication like being winded and full of adrenaline after a long chase, or being mentally ill, or in pain. There was also compelling evidence that defendant intended to evade officers. The extensive car chase followed by defendant fleeing on foot after abandoning his car shows a clear specific intent to evade. Equally compelling is defendant's statement upon apprehension, telling a deputy, "Yesterday, I was going down 47th, and you didn't catch me." In this context, we agree with the trial court the evidence invited jury speculation and was minimally relevant in support of a voluntary intoxication defense. It was not an abuse of discretion to exclude the evidence.

Exclusion of the evidence did not violate defendant's constitutional rights. A trial court's application of the ordinary rules of evidence does not impermissibly infringe on a defendant's constitutional rights to confront and cross-examine witnesses or to present a defense. (People v. Blacksher (2011) 52 Cal.4th 769, 821.) Such is the case here.

III

Defendant contends the trial court erred in failing to stay sentence on count five, unlawfully driving or taking the Toyota Tacoma taken in the carjacking.

Section 654, subdivision (a) provides in relevant part, "An 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 purpose of this statute "is to insure that a defendant's punishment will be commensurate with his culpability. [Citation.]" (People v. Perez (1979) 23 Cal.3d 545, 551.) Section 654 "prohibits multiple sentences where the defendant commits different acts that violate different statutes but the acts comprise an indivisible course of conduct engaged in with a single intent and objective. [Citation.]" (People v. Alvarado (2001) 87 Cal.App.4th 178, 196.) But where a defendant acts with "multiple criminal objectives that [a]re independent of and not merely incidental to each other, then he may be punished for the independent violations committed in pursuit of each objective even though the violations were parts of an otherwise indivisible course of conduct. [Citation.]" (Ibid.)

"Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. [Citations.] Its findings will not be reversed on appeal if there is any substantial evidence to support them. [Citations.] We review the trial court's determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence. [Citation.]" (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)

Defendant asserts sentencing should have been stayed because the objective of the carjacking and the unlawful taking and driving offense was the same, taking the Tacoma. Even if differing objectives were behind those offenses, he asserts the unlawful taking or driving offense had the same objective as the reckless evasion crime, evading the police. We disagree.

Defendant was charged with committing the Vehicle Code section 10851 offense on December 13, 2015, the day after he committed the carjacking. This code section contains two distinct offenses, unlawfully taking and unlawfully driving. A defendant may therefore be convicted of receiving a stolen vehicle and unlawfully driving the same vehicle notwithstanding the prohibition against convicting a person of stealing and receiving the same property. (People v. Garza (2005) 35 Cal.4th 866, 881.) Since the Vehicle Code section 10851 offense is based on defendant unlawfully driving the vehicle the day after the carjacking, it is based on the different objective of unlawfully driving the vehicle he stole through the carjacking.

We are also unconvinced by defendant's argument regarding the reckless evasion offense. While defendant had to use the truck he was unlawfully driving to commit this crime, the objective of the reckless evasion offense was to avoid capture, a distinct objective from unlawfully driving the truck. The trial court's finding to this effect is supported by substantial evidence.

DISPOSITION

The judgment is affirmed.

/s/_________

BLEASE, Acting P. J. We concur: /s/_________
ROBIE, J. /s/_________
BUTZ, J.


Summaries of

People v. Hardy

COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
Jan 8, 2020
C084623 (Cal. Ct. App. Jan. 8, 2020)
Case details for

People v. Hardy

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. MICHAEL JAMES HARDY, Defendant…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)

Date published: Jan 8, 2020

Citations

C084623 (Cal. Ct. App. Jan. 8, 2020)