Opinion
D083029
09-13-2024
THE PEOPLE, Plaintiff and Respondent, v. BENJAMIN SPENCER, Defendant and Appellant.
Susan S. Baugess, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Daniel Rogers and Vincent P. LaPietra, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. SCD297529 Francis M. Devaney, Judge. Affirmed.
Susan S. Baugess, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Daniel Rogers and Vincent P. LaPietra, Deputy Attorneys General, for Plaintiff and Respondent.
IRION, J.
A jury found Benjamin Spencer guilty of carjacking (Pen. Code, § 215, subd. (a)); attempted kidnapping during a carjacking (§§ 664, 209.5, subd. (a)); hit and run driving with injury (Veh. Code, § 20001, subd. (a)); and hit and run driving (id., §20002, subd. (a)). Spencer admitted a prior strike conviction, and the trial court sentenced him to prison for a term of 19 years 4 months.
Unless otherwise indicated, all further statutory references are to the Penal Code.
Spencer contends (1) insufficient evidence supports a finding that he was the perpetrator of the crimes; (2) insufficient evidence supports a finding of an attempted kidnapping during a carjacking (§§ 664, 209.5, subd. (a)); (3) the conviction for carjacking (§ 215, subd. (a)) should have been dismissed because that offense is a lesser included offense of the crime of attempted kidnapping during a carjacking (§§ 664, 209.5, subd. (a)); (4) the trial court abused its discretion in denying Spencer's motion to strike his prior strike; and (5) the trial court abused its discretion in imposing an upper term sentence.
We conclude that Spencer's arguments lack merit, and we accordingly affirm the judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
On the afternoon of December 31, 2022, a woman walked to her car in the parking lot of the Fashion Valley mall in San Diego. Unbeknownst to her, a man was sitting in the backseat of the car. In both a photographic lineup, and at trial, the woman later identified that man as Spencer.
As the woman sat down in the driver's seat, with the car door still open, Spencer lunged from the backseat to grab her neck. The woman used her car keys to hit Spencer, and in doing so, she dropped the keys. Spencer then grabbed the back of the woman's sweater and her hair. Spencer repeatedly "shushed" the woman, telling her to be quiet, while she screamed for help. While still holding on to the woman, Spencer moved from the back seat to the driver's seat by climbing over the center console. At the same time, the woman successfully moved herself out of the car, through the driver's side door. As a result, Spencer ended up sitting in the driver's seat while still holding on to the woman, who had her body and both feet outside the car. Spencer tried to pull the woman back into the car.
In one hand, Spencer held the keys that the woman had dropped, and he used them to start the car. While still holding on to the woman, Spencer put the car into reverse and drove backwards out of the parking space, dragging the woman's feet on the pavement. The movement of the car caused the car door to slam closed, pinning the woman between the door and the car, while Spencer still held on to her. After the car traveled approximately 15 feet in reverse, it collided with another vehicle that was driving through the parking lot. The force of the crash caused the door of the woman's car to fly open and caused Spencer to let go of the woman. The woman fell to the ground, and her foot was then run over by the car that Spencer had crashed into. Spencer sped away from the area in the woman's car.
Three days later, on January 3, 2023, an automatic license plate reader located the woman's car in Carlsbad. An officer initiated a stop of the vehicle, which was being driven by Michael N. Michael N. did not fit the description of the perpetrator that the woman gave to police. Michael N. told police officers, and later testified at trial, that he was not involved in the theft of the car, but that Spencer had recently given him the car to drive. Location data for Michael N.'s cell phone was consistent with that story, as the phone was nowhere near the Fashion Valley mall during the crime.
Based on information from Michael N., Spencer was located and arrested. He was charged with carjacking (§ 215, subd. (a)); attempted kidnapping during a carjacking (§§ 664, 209.5, subd. (a)); hit and run driving with injury (Veh. Code, § 20001, subd. (a)); and hit and run driving (id., §20002, subd. (a)). An allegation that Spencer personally inflicted great bodily injury (§ 12022.7, subd (a)) was later dismissed by the People.
At trial, the woman who was victimized during the incident testified that Spencer was the assailant, explaining that she had a good opportunity to observe him, and stating, "I remember perfectly who it was." Spencer testified in his own defense. He admitted that he was at the Fashion Valley mall at the time of the crimes, waiting in the parking lot while the people he arrived with shopped inside the stores, but he denied being involved in the carjacking.
The jury convicted Spencer on all of the counts, as charged. Spencer admitted a prior strike, and the trial court made a true finding on several aggravating factors. After denying Spencer's motion to strike his prior strike, the trial court imposed a prison sentence of 19 years 4 months.
II.
DISCUSSION
A. Spencer's Challenges to the Sufficiency of the Evidence
Spencer challenges the sufficiency of the evidence in two respects. First, he argues that insufficient evidence supports a finding that he was the perpetrator. Second, he argues that insufficient evidence supports a finding that, if he was the perpetrator, he attempted to commit a kidnapping during the carjacking.
"' "In reviewing a challenge to the sufficiency of the evidence, we do not determine the facts ourselves. Rather, we 'examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence-evidence that is reasonable, credible and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citations.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] The same standard of review applies to cases in which the prosecution relies primarily on circumstantial evidence and to special circumstance allegations. [Citation.] '[I]f the circumstances reasonably justify the jury's findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding.' [Citation.] We do not reweigh evidence or reevaluate a witness's credibility." '" (People v. Ramirez (2022) 13 Cal.5th 997, 11171118.)
1. Substantial Evidence Supports a Finding That Spencer Was the Perpetrator
Spencer contends that insufficient evidence supports a finding that he was the person who committed the carjacking. To support that argument, Spencer relies on several facts that he describes as casting doubt on whether the victim accurately identified him. Specifically, Spencer points to the following facts: (1) his DNA was not positively identified in the stolen car after it was recovered; (2) when identifying Spencer in the photographic lineup, the victim was only able to say that she was "fairly sure" of her identification due to the hairstyle depicted in the photograph; (3) in describing the perpetrator's physical characteristics, the victim was slightly off in estimating Spencer's height and age; and (5) Michael N., who was found driving the stolen car on January 3, 2023, shared some physical characteristic with Spencer. Based on these facts, Spencer argues that "his identity as the perpetrator was nothing more than a suspicion," and "suspicion is not evidence."
The victim, who only saw the perpetrator when he was sitting down, noted that he appeared to be roughly at her eye level. As she was 5 foot, 7 inches, she concluded the perpetrator was roughly her height. The victim told the police that the perpetrator was 5 feet, 10 inches or 5 feet, 11 inches. Spencer testified that he is 5 feet, 5 inches and weighs 160 or 165 pounds. The victim also testified that the perpetrator was an "older" man, whose age she guessed to be "later 40's, early 50's." At trial, Spencer testified he was 57 years old.
Spencer points out that, like him, Michael N. was a Black man with curly black hair and had a tattoo in the vicinity of his neck. We note, however, that Michael N. was 6 feet, 2 inches, 265 pounds, and light complected, which was significant because the victim described the perpetrator as a dark complected man with an average build, who was shorter than 6 feet, 2 inches. Moreover, Michael N. had tattoos on his neck, whereas the victim described seeing a tattoo only on the perpetrator's collarbone and upper chest area. The victim explained that she saw no tattoo on the perpetrator's neck.
We reject the argument because there was ample evidence, including the victim's in-court identification of Spencer, to support a finding that Spencer was the perpetrator. As we have explained, the victim testified at trial that she had an opportunity to observe the perpetrator during the incident, based on which she identified Spencer in the courtroom as the person who attacked her and took her car, stating "I remember perfectly who it was." "[U]nless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction." (People v. Young (2005) 34 Cal.4th 1149, 1181.) "Even identification of defendant by a single eyewitness may be sufficient to establish, beyond a reasonable doubt, defendant's identity as perpetrator of the crime charged." (People v. Reed (2018) 4 Cal.5th 989, 1006.) Here, there was nothing impossible or improbable about the victim's identification of Spencer. The jury was, accordingly, entitled to credit that testimony and rely on it, alone, to conclude that Spencer was the perpetrator.
Moreover, although the victim's testimony identifying Spencer is sufficient, in itself, to provide substantial evidence, other facts point to Spencer as the perpetrator. Among other things, Michael N. testified that Spencer was the person who gave him the car. Further, the data from Spencer's cell phone showed he was in the vicinity of the Fashion Valley mall during the relevant timeframe, and Spencer testified that he was, in fact, at the Fashion Valley mall at the time, waiting in the parking lot. Accordingly, we conclude that Spencer's challenge to the sufficiency of the evidence to identify him as the perpetrator is without merit.
2. Substantial Evidence Supports a Finding of Attempted Kidnapping During a Carjacking
Next, Spencer contends that insufficient evidence supports a finding that he committed an attempted kidnapping during a carjacking.
The crime of kidnapping during a carjacking is set forth in section 209.5. That statute provides, in relevant part, "(a) Any person who, during the commission of a carjacking and in order to facilitate the commission of the carjacking, kidnaps another person who is not a principal in the commission of the carjacking shall be punished by imprisonment in the state prison for life with the possibility of parole. [¶] (b) This section shall only apply if the movement of the victim is beyond that merely incidental to the commission of the carjacking, the victim is moved a substantial distance from the vicinity of the carjacking, and the movement of the victim increases the risk of harm to the victim over and above that necessarily present in the crime of carjacking itself." (§ 209.5.) When the charge is that the defendant attempted to commit a violation of that statute, the People must prove a "specific intent to kidnap . . . to facilitate a carjacking." (People v. Medina (2007) 41 Cal.4th 685, 699 (Medina).)
Spencer argues that the evidence did not show a specific intent to kidnap the victim. He argues that based on the evidence presented at trial, the only reasonable conclusion was that his "sole reason in holding onto [the victim] as she exited the vehicle was to get possession of the keys." Spencer argues that he "was merely attempting to get possession of the keys and leave the area." In connection with this contention, Spencer argues that "[h]ad it been his intent to kidnap [the victim] he could have done so while he was still in the backseat. He could have ordered her to start the vehicle and drive off."
We reject Spencer's argument because it is plainly contrary to the evidence. The victim specifically testified that she dropped her keys when Spencer was still in the backseat as she used them to try to hit Spencer. At some point before starting the car, Spencer obtained the keys from inside the car, after the victim had already dropped them. Spencer necessarily had the keys when he started the car and drove it in reverse, but at that point he was still holding on to the victim. Thus, the evidence simply does not support Spencer's contention that his "sole reason in holding onto [the victim] as she exited the vehicle was to get possession of the keys."
The People's theory during closing argument was that Spencer was trying to pull the victim back into the car and take her away so that he could successfully complete the carjacking. Specifically, the People argued to the jury that when Spencer held on to the victim and tried to either get her back in the car and take her with him, "it was to help effectuate his escape because he didn't want a woman screaming in the middle of broad daylight on New Year's Eve in Fashion Valley." The evidence amply supports a finding that Spencer acted with that intent, as the victim testified that even after she exited the vehicle and Spencer had access to the keys that she dropped inside the car, Spencer attempted to pull her back into the car, and he did not let go until he experienced the force of the collision with the other car. Accordingly, substantial evidence supports a finding that Spencer attempted to kidnap the victim with the specific intent to facilitate the successful completion of the carjacking.
To support his argument that insufficient evidence supports a finding that he intended to kidnap the victim, Spencer points to the trial court's statement during the sentencing hearing when explaining why it selected the carjacking conviction (count 1) as the principal count and stayed the sentence on the conviction for attempted kidnapping during a carjacking (count 2) pursuant to section 654. The trial court stated, "So in Count 1 and Count 2, yes, they're 654'd. One is a carjacking. One is . . . attempted kidnapping during a carjack. I'm not sure that the full intent was to kidnap [the victim]. I think she got stuck in that door and dragged away, which is kidnapping of a sort, but I think the charge that most fits this crime was Count No. 1, the carjacking." Spencer's reliance on the trial court's statement is unavailing, as the sole question is whether there was sufficient evidence for the jury to conclude that Spencer had the specific intent to kidnap the victim. As we have explained, the record supports such a finding. Moreover, we note that the trial court's description of the evidence overlooks the victim's testimony that Spencer attempted to pull her back into the car and continued to hold on to her, even after the car door pinned her to the car.
B. Under the Statutory Elements Test, Carjacking Is Not a Lesser Included Offense of Attempted Kidnapping During a Carjacking
We next consider Spencer's contention that the trial court was required to dismiss the conviction for carjacking (§ 215, subd. (a)) because it is a lesser included offense of the conviction for attempted kidnapping during a carjacking (§§ 664, 209.5, subd. (a)).
"In general, a person may be convicted of, although not punished for, more than one crime arising out of the same act or course of conduct. 'In California, a single act or course of conduct by a defendant can lead to convictions "of any number of the offenses charged." '" (People v. Reed (2006) 38 Cal.4th 1224, 1226.) However, "[a] judicially created exception to the general rule permitting multiple conviction 'prohibits multiple convictions based on necessarily included offenses.'" (Id. at p. 1227.) When a defendant is convicted of both the greater and the lesser offense, the trial court should strike or vacate the conviction of the lesser offense. (Medina, supra, 41 Cal.4th at p. 702.)
When a case "involves the conviction of multiple alternative charged offenses," we apply the "elements" test to determine whether one offense is necessarily included in another. (People v. Ramirez (2009) 45 Cal.4th 980, 984-985, italics omitted.) Under the elements test, "[w]e inquire whether all the statutory elements of the lesser offense are included within those of the greater offense. In other words, if a crime cannot be committed without also committing a lesser offense, the latter is a necessarily included offense." (Id. at p. 985.) "Under the 'elements' test, we look strictly to the statutory elements, not to the specific facts of a given case." (Ibid.)
Spencer argues that carjacking (§ 215, subd. (a)) is a lesser included offense of attempted kidnapping during a carjacking (§§ 664, 209.5, subd. (a)) because the offense of attempted kidnapping during a carjacking necessarily includes the element of a completed carjacking. According to Spencer, his conviction for the carjacking should therefore be dismissed in favor of the purportedly greater offense of attempted kidnapping during a carjacking.
Spencer's argument lacks merit because he misunderstands the elements required for a conviction of an attempted kidnapping during a carjacking. As our Supreme Court has held, "a completed carjacking is not required for an attempt to violate section 209.5(a)." (Medina, supra, 41 Cal.4th at p. 694, italics added.) "Neither a completed kidnapping nor a completed carjacking is necessary for an attempted kidnapping during the commission of a carjacking." (Id. at p. 695.) Because the statutory elements of the offense of an attempted kidnapping during a carjacking do not require the actual completed commission of a carjacking, it is possible to commit the crime of attempted kidnapping during a carjacking without committing a carjacking. Accordingly, carjacking is not a lesser included offense of attempted kidnapping during a carjacking.
C. The Trial Court Did Not Abuse Its Discretion by Denying Spencer's Motion to Strike His Prior Strike
We next consider Spencer's contention that the trial court erred by denying his motion, brought pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), to strike his prior strike arising from a 2016 conviction for a residential burglary (§ 459).
Spencer argued that the prior strike should be stricken because (1) it was "remote in time," since it was from 2016; (2) the strike was for a nonviolent crime; (3) although Spencer's criminal history was "lengthy," only his assault conviction in 2010 was for a violent crime; (4) Spencer's criminal history is the result of drug addiction; and (5) Spencer was diagnosed in the past with mental illness.
In response, the People pointed out, among other things, that since Spencer was released from the three-year prison term for his 2016 conviction, he had 12 parole violations, culminating in a new series of prison sentences starting in 2020." The People pointed out that "Mr. Spencer has a criminal history that is both long and of increasing seriousness." Contesting Spencer's representation that his criminal history was largely nonviolent, the People noted, "The probation report articulates numerous arrests and police conducts that involved violence. In numerous of [Spencer's] offenses he resorts to violence when attempting to evade capture." Indeed, the probation officer's report indicates that even with respect to the 2016 prior strike, Spencer engaged in a "struggle with a police dog and deputies" as they attempted to arrest him for that crime.
According to the probation officer's report, between Spencer's release from prison for the residential burglary and the date of the instant offense in December 2022, Spencer committed numerous additional crimes and served additional terms of confinement.
As the trial court summarized that criminal history during the sentencing hearing, "And you have been violating the law in one way or the other, Mr. Spencer, since Juvenile Hall in 1982. Since then, an adult record began in 1985, and I'm looking at, in my count, 35 convictions of one sort or the other, whether they were misdemeanors or felonies. A lot of drugs, I understand, but you have been committing crimes for the last 40 years."
The trial court denied the motion to strike Spencer's prior strike. First, the trial court explained that it did not consider a conviction from 2016 to be remote in time. Second, the trial court observed that although "residential burglary is not necessarily violent, . . . it's a serious and violent felony because of the potential." Third, the trial court pointed out that the present crime "was extremely violent." The trial court also took note of the People's argument regarding Spencer's "significant criminal history including 12 parole violations since Mr. Spencer was released from custody on th[e] prior strike." The trial court concluded that "given [Spencer's] criminal history, given his activity since he was released, . . . he's not deserving of the benefit of a Romero motion" and is not "the type of person who Romero was intended to benefit."
In applying the "Three Strikes" law, a trial court may strike a prior strike "in furtherance of justice." (§ 1385, subd. (a); see also Romero, supra, 13 Cal.4th at pp. 529-530.) In deciding whether to do so, a court considers "whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161 (Williams).) "[T]he law creates a strong presumption that any sentence that conforms to [its] sentencing norms is both rational and proper." (People v. Carmony (2004) 33 Cal.4th 367, 378 (Carmony).)
We apply an abuse of discretion standard when reviewing the trial court's refusal to strike a prior strike. (Carmony, supra, 33 Cal.4th at p. 375.) "[A] trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances. For example, an abuse of discretion occurs where the trial court was not 'aware of its discretion' to dismiss . . . [,] where the court considered impermissible factors in declining to dismiss," or where" 'the sentencing norms [established by the Three Strikes law may, as a matter of law,] produce[ ] an "arbitrary, capricious or patently absurd" result' under the specific facts of a particular case....[¶] But '[i]t is not enough to show that reasonable people might disagree about whether to strike one or more' prior conviction allegations." (Id. at p. 378, citations omitted.) "[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (Id. at p. 377.) Only in "an extraordinary case-where the relevant factors . . . manifestly support the striking of a prior conviction and no reasonable minds could differ" would "the failure to strike . . . constitute an abuse of discretion." (Id. at p. 378)
Here, the record supports a determination that Spencer was not "outside the . . . spirit, in whole or in part" of the Three Strikes law. (Williams, supra, 17 Cal.4th at p. 161.) Spencer has been committing crimes on a consistent basis since 1982, and he continued to do so even between the time of his release from prison on the 2016 strike conviction and the instant offense. "The circumstances must be 'extraordinary . . . by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack.'" (Carmony, supra, 33 Cal.4th at p. 378.) Spencer "appears to be 'an exemplar of the "revolving door" career criminal to whom the Three Strikes law is addressed.'" (Id. at p. 379.) Spencer thus has not established that the trial court abused its discretion in declining to strike his prior strike.
D. The Trial Court Did Not Err In Imposing an Upper Term Sentence
Spencer's final argument is that the trial court erred in imposing an upper term sentence on the principal count of carjacking. We review a trial court's sentencing decisions for an abuse of discretion, evaluating whether the court exercised its discretion "in a manner that is not arbitrary and capricious, that is consistent with the letter and spirit of the law, and that is based upon an 'individualized consideration of the offense, the offender, and the public interest.'" (People v. Sandoval (2007) 41 Cal.4th 825, 847.)
Based on amendments to section 1170, subdivision (b), which became effective on January 1, 2022, a trial court may impose no greater than a middle term sentence unless it relies on aggravating factors that (with the exception of prior convictions in a certified record) have been found true beyond a reasonable doubt or stipulated to by the defendant. (§ 1170, subd. (b)(1)-(3).) Here, Spencer waived his right to have a jury make findings on the aggravating factors.
At sentencing, the trial court imposed an upper term sentence on the principal count of carjacking based on the aggravating factors it had previously found to be true: (1) the victim was particularly vulnerable (Cal. Rules of Court, rule 4.421(a)(3)); Spencer's prior convictions were of increasing seriousness and numerous (rule 4.421(b)(2)); and (3) Spencer served ten prior prison terms (rule 4.421(b)(3)).
All further references to rules are to the California Rules of Court.
Spencer's first contention on appeal is that the trial court should not have relied on the victim's particular vulnerability as an aggravating factor because "it can be argued that any victim of a carjacking will be particularly vulnerable; the crime itself targets an individual who is unsuspecting." We reject the argument. Although "[a] fact that is an element of the crime on which punishment is being imposed may not be used to impose a particular term" (rule 4.420(h)), the crime of carjacking does not include the element of a victim's particular vulnerability. Indeed, carjacking can be committed in a wide range of circumstances and against a wide range of victims, only some of whom will be found to be particularly vulnerable.
Second, Spencer argues that a middle term sentence would have been "just" in this case because "while [Spencer] had numerous prior convictions, none were violent, and only one was of a serious nature." We reject the argument because a trial court is not required to exercise its discretion in any specific manner in deciding whether the presence of aggravating circumstances warrant the imposition of an upper term sentence. Based on the multiple aggravating circumstances present in this case, the trial court was well within its discretion to impose an upper term sentence, regardless of Spencer's particular criminal history.
We note that this description of Spencer's criminal history is inconsistent with defense counsel's representation in the trial court that "[a]side from a felony assault charge from 2010, Mr. Spencer does not have any violent prior convictions."
Finally, without providing any citation to authority, Spencer points to the fact that "[a]dditional punishment for the service of prior prison terms is now prohibited except in certain specified instances, not applicable here." We understand Spencer to be referring to the Legislature's amendment of section 667.5, subdivision (b), effective January 1, 2020, to remove the one-year enhancement for prior prison terms, and to have it apply only to sexually violent offenses. (Sen. Bill No. 136, § 1; see People v. Jennings (2019) 42 Cal.App.5th 664, 681.) Spencer argues that by using the aggravating factor of his prior prison terms to impose an upper term sentence, the trial court was "attempt[ing] to do indirectly what it could no longer do directly" after the Legislature amended section 667.5, subdivision (b). We reject the argument. Whether a defendant should be subject to the one-year enhancement formerly set forth in section 667.5, subdivision (b) is a different issue from whether a trial court is able to rely on the fact of a defendant's prior prison terms in deciding whether to impose an upper term sentence. The California Rules of Court clearly allow a trial court to consider a defendant's prior prison terms as an aggravating factor (rule 4.421(b)(3)), and the trial court was entitled to rely on that factor here.
Accordingly, there is no merit to Spencer's contention that the trial court abused its discretion by imposing an upper term sentence on the carjacking conviction.
DISPOSITION
The judgment is affirmed.
WE CONCUR: HUFFMAN, Acting P. J., KELETY, J.