Opinion
E066294
02-27-2018
THE PEOPLE, Plaintiff and Respondent, v. JASON ANDREW BARR, Defendant and Appellant.
William G. Holzer, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Kristen Ramirez, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. 16CR003972) OPINION APPEAL from the Superior Court of San Bernardino County. Rodney A. Cortez, Judge. Affirmed as modified. William G. Holzer, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Kristen Ramirez, Deputy Attorneys General, for Plaintiff and Respondent.
FACTUAL AND PROCEDURAL HISTORY
A. PROCEDURAL HISTORY
On May 16, 2016, a first amended information alleged that defendant and appellant Jason Andrew Barr committed assault with a deadly weapon under Penal Code section 245, subdivision (a)(1) (count 1); trespass under section 602.5, subdivision (a) (count 2); receiving a stolen trailer under section 496d, subdivision (a) (count 3); receiving a stolen truck under section 496, subdivision (a) (count 4); and receiving stolen property under section 496, subdivision (a) (count 5). The information also alleged that defendant committed counts 3 and 4 while on bail (§ 12022.1), and that defendant previously served a prison term (§ 667.5, subd. (b)).
The information contained the consolidated charges from case Nos. 16CR-003972 and 16CR-003974.
All statutory references are to the Penal Code unless otherwise specified.
Defendant waived a preliminary hearing in case No. 16CR-018725, and agreed to the People's request to consolidate the case. This resulted in the addition of count 3 and the on-bail enhancement attached to count 3 in the first amended information.
On May 23, 2016, a jury found defendant guilty as charged. Defendant admitted the prior prison term allegation.
On June 17, 2016, the trial court sentenced defendant to state prison for eight years four months, calculated as follows: the upper term of four years on count 1, concurrent term of 60 days jail on count 2, a consecutive term of eight months on count 3, a consecutive term of two years on the on-bail enhancement attached to count 3, a consecutive term of eight months on count 4, a concurrent term of two years on-bail enhancement attached to count 4, a concurrent term of 60 days jail on count 5, and a consecutive term of one year on the prior prison enhancement.
B. FACTUAL HISTORY
1. COUNTS 1 AND 2: ASSAULT WITH A DEADLY WEAPON AND TRESPASS
On January 23, 2016, Casey Martinez and his companion Beverly Beltran went to look at a property located on Marks Road in Wonder Valley. Beltran was pregnant with Martinez's child. They were checking the condition of the property for the owner; Martinez was also considering purchasing the property. Martinez had the permission of the owner, John Kanavos, to be on the property. Kanavos gave Martinez keys and "everything [Kanavos] had to get into the property."
Martinez parked the vehicle he was driving, a Prius, directly parallel to the 10-foot wide front gate, approximately one to three feet in front of it. Martinez heard noise, which struck him as wrong because the property was supposed to be deserted. The couple walked between two structures and discovered defendant working on a vehicle. The door to the house was open. Martinez told defendant it looked like defendant had broken into the house, and was "squatting" on the property.
Martinez told defendant "I'm going to have to call the sheriffs." Defendant seemed nervous and asked, "Why do we have to get the law involved?" Martinez returned to the Prius, which was approximately 80 to 100 yards from defendant's location on the property, and called sheriff's dispatch.
The couple remained on the property as they waited for law enforcement to arrive. Martinez stood five to 10 feet within the front gate of the property, while Beltran sat in the passenger seat of the Prius close to the front gate.
Martinez heard a truck start up. He saw defendant in a truck "creeping" slowly drove towards Martinez. Defendant came within 40 to 50 feet of Martinez; he put his head out of the truck window and said something "in desperation" or "in anger." Suddenly, defendant "punched" the gas and drove the truck full speed towards Martinez, the front gate, and the Prius; defendant took his hands off the steering wheel and covered his face. Martinez never threatened defendant, and defendant never asked Martinez to move his car.
Martinez believed the truck was aimed straight at him. There was nothing between the truck and Martinez that would have blocked Martinez from defendant's view. Martinez jumped to his left to get out of defendant's way, which caused Martinez to injure his left foot. Defendant came within seven to 10 feet of Martinez's location, before he engaged the brakes; the truck started to skid. The truck stopped within 10 to 15 feet of the front gate. Beltran was afraid the truck was going to hit her. Defendant put the truck in reverse and drove back behind one of the structures. Beltran exited the Prius because she thought defendant might "come back again." Subsequently, Beltran moved the Prius to a different location.
Defendant parked the truck at the edge of the property line and exited the truck. He used bolt cutters to cut a hole in the fence. Defendant started up a motorcycle and drove through the hole in the fence but the motorcycle stalled. Defendant returned to the property and locked himself in one of the buildings. Law enforcement arrived and used a PA system to announce their presence and request that defendant exit the property. Defendant did not comply. Eventually, law enforcement forced entry into the building and defendant emerged from a back room. It appeared that someone had been living in the building.
Kanavos, the property owner, did not know defendant and had not given defendant or anyone else permission to live or store items on the property.
2. COUNT 3: RECEIVING A STOLEN TRAILER
Walter Banta owned property in Joshua Tree. He visited the property approximately once every three months. On January 5, 2016, Banta received a call from his neighbor about a suspected break-in at the Joshua Tree property. He drove out to the property that same day and discovered that his cargo storage containers had been broken into and his trailer was missing. Banta estimated the trailer was worth $2,500.
One evening in mid-February, Bernice Barcott was at her friend Cathy Bond's residence in Wonder Valley. She saw defendant, with whom she was acquainted, drive a truck pulling a trailer, on to Bond's property. He left the trailer, claiming he was low on fuel. The trailer remained at Bond's residence for some time, and although defendant periodically visited he did not retrieve the trailer. Bond became worried that defendant did not own the trailer and she asked Barcott to remove the trailer from her property. Barcott complied; she dropped the trailer off at another properly and subsequently directed law enforcement to where the trailer was located.
Banta did not know defendant and did not give defendant or anyone else permission to take or store his trailer.
3. COUNT 4: RECEIVING A STOLEN TRUCK
On February 3, 2016, San Bernardino County Sheriff's Deputy Jeffrey Dieckhoff contacted defendant during his investigation of a Jeep with a missing license plate. There was also a GMC truck at the residence; defendant said it belonged to him but when the deputy ran the plates, it came up registered to a different name. Defendant then told Deputy Dieckhoff that the truck belonged to his girlfriend's father. San Bernardino County Sheriff's Deputy Bruce Southworth learned that the GMC truck had been stolen from Lewis's property on Hopi Trail in Yucca Valley. Deputy Southworth was initially unable to contact Lewis, who only visited his Yucca Valley property three to four times a year, and was out of the country at the time.
On March 10, 2016, after receiving a message from Deputy Southworth about the truck, Lewis went to his property and discovered his house been broken into and his 1990 GMC truck that had been parked in the garage was missing. Lewis estimated that the truck was valued at $2,000.
Deputy Southworth conducted a records check on the truck. It came back registered to Valerie Morse, who was in a dating relationship with defendant. The deputy went to Morse's home; the GMC truck was there. Deputy Southworth spoke with both Morse and defendant and defendant claimed that he traded with a man named Glen—the truck for "a Cutlass"—but the Cutlass was still on Morse's property. Defendant was unable to provide any other details.
Deputy Southworth searched Morse's home and found the keys to Lewis's truck on a table inside the residence. He also found the truck's pink slip, in Morse's name, along with pamphlets on how to conduct a lien sale on a motor vehicle. He also found mail addressed to defendant. Defendant was unable to show any kind of bill of sale or receipt for any transaction regarding the truck. San Bernardino County Investigator Tom Byles testified that a lien sale was a fraudulent means to obtain title to a stolen vehicle.
When Lewis recovered the truck, it was missing a camper shell, the tires were changed, the glove box was broken, the windshield was cracked, and the back window was missing. Lewis testified that he did not know either defendant or Morse, and did not give anyone permission to take his truck.
4. COUNT 5: RECEIVING STOLEN PROPERTY
Defendant possessed numerous items belonging to Gerald Grott, who owned property on Lela Lane in Wonder Valley. Grott lived in Phoenix. Cody Addington helped look after Grott's property; the property was on Addington's way to work at a nearby salt mine. On the morning of March 8, 2016, Addington noticed several squatters on Grott's property. On his return trip home, Addington stopped by Grott's property and spoke with defendant. Defendant claimed he was simply driving down the road, but this raised suspicion because the road was not close to town so it usually did not have any traffic, it was land typically only used by the salt mine for transportation, and it dead-ended at the salt mine. Addington additionally recognized Grott's toolbox in the back of defendant's truck.
During his search of Morse's house with respect to his investigation into the theft of Lewis's truck, Deputy Southworth found mail addressed to Grott, including credit card applications and an employment badge belonging to Grott.
Grott did not know defendant. He did not give defendant permission to take any of his belongings.
5. ON-BAIL ENHANCEMENTS
On January 26, 2016, defendant was released on bail for his assault with a deadly weapon case. He was still on bail when he was found in possession of the stolen property on March 1, 2016, and March 10, 2016.
DISCUSSION
A. THE TRIAL COURT PROPERLY SENTENCED DEFENDANT TO THE UPPER TERM ON COUNT 1
Defendant contends that the trial court abused its discretion in imposing the upper term on count 1, assault with a deadly weapon, because it relied on sentencing factors that were not supported by the record and used to support other sentencing enhancements. The People contend that defendant "forfeited this claim by failing to object at sentencing." Because defendant's claim fails on the merits, we need not consider the People's forfeiture claim.
1. STANDARD OF REVIEW
An appellate court reviews a trial court's decision to impose a particular sentence for abuse of discretion. The decision will not be disturbed on appeal unless the trial court's "decision is so irrational or arbitrary that no reasonable person could agree with it." (People v. Jones (2009) 178 Cal.App.4th 853, 860-861, citing People v. Carmony (2004) 33 Cal.4th 367, 377.) An appellate court will uphold the trial court's sentencing choice if it is supported by available, appropriate, relevant evidence. (People v. Black (2007) 41 Cal.4th 799, 818, fn. 7.)
2. LEGAL BACKGROUND
Assault with a deadly weapon is punishable by imprisonment for two, three, or four years. (§ 245, subd. (a)(1).) In imposing a sentence of imprisonment, "the sentencing judge must select the upper, middle, or lower term on each count for which the defendant has been convicted." (Cal. Rules of Court, Rule 4.420(a).) The trial court has broad discretion to consider relevant evidence at sentencing. (People v. Towne (2008) 44 Cal.4th 63, 85.) To determine the appropriate sentence, the trial court weighs the factors in aggravation and mitigation. (Cal. Rules of Court, Rules 4.421, 4.423, 4.420(b).) The relevant rules also permit the sentencing judge to consider "criteria reasonably related to the decision being made," even if such criteria is not specifically listed in the rules. (Cal. Rules of Court, Rules 4.408, 4.420(b).)
Aggravating factors relating to the crime may include: (1) the crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness or callousness; (2) the defendant was armed with or used a weapon at the time of the commission of the crime; (3) the victim was particularly vulnerable; or (4) the manner in which the crime was carried out indicates planning, sophistication, or professionalism. (Cal. Rules of Court, Rule 4.421(a).) Aggravating factors relating to the defendant may include: (1) the defendant has engaged in violent conduct that indicates a serious danger to society; (2) the defendant's prior convictions as an adult are numerous or of increasing seriousness; (3) the defendant has served a prior prison term; or (4) the defendant's prior performance on probation or parole was unsatisfactory. (Cal. Rules of Court, Rule 4.421(b).)
"Only a single aggravating factor is required to impose the upper term." (People v. Osband (1996) 13 Cal.4th 622, 728.) California Rules of Court Rule 4.420(d) provides a "fact that is an element of the crime shall not be used to imposed the upper term." However, rule 4.420(d) "does not preclude a court from using facts to aggravate a sentence when those facts establish elements not required for the underlying crime." (People v. Castorena (1996) 51 Cal.App.4th 558, 562.)
Moreover, a court cannot impose an upper term "by using the fact of any enhancement upon which sentence is imposed under any provision of law," unless the court strikes the punishment for the enhancement. (§ 1170., subd. (b); Cal. Rules of Court, Rule 4.420(c).) When a defendant claims that the trial court made an impermissible dual use of factors, we must look at "whether the trial court could have based the aggravating factor on evidence other than that which gave rise to the enhancement. If so, the sentence may stand." (People v. Garcia (1995) 32 Cal.App.4th 1756, 1775.) Moreover, improper dual use of the same fact for both an upper term and a consecutive term or other enhancement does not necessitate resentencing if it is not reasonably probable that the trial court would have imposed a more favorable sentence in the absence of the error. (People v. Osband, supra, 13 Cal.4th at pp. 728-729.)
3. THE TRIAL COURT'S IMPOSITION OF THE UPPER TERM
In this case, the jury convicted defendant of assault with a deadly weapon, count 1, which carried a sentence of 2, 3 or 4 years under section 245, subdivision (a)(1). At sentencing, the defense asked for the low term on count 1, and a total sentence of six years. The prosecutor recommended the midterm on count 1, and asked for a total sentence of seven years four months. Probation recommended the midterm on count 1 and asked for a total sentence of eight years. The trial court imposed the maximum possible prison sentence of eight years four months, consisting of the upper term of four years on count 1. The trial court declared it was imposing the aggravated term on count 1 because defendant's actions risked not only Martinez's life, but also the lives of Beltran and her unborn child. The trial court stated as follows:
"I'm imposing the aggravated term on assault with a deadly weapon. [Defendant's] actions put at risk not only the victim who was the victim of the underlying offense, but an unborn child, as well as the mother of that unborn child. Those actions are egregious to this court. His prior criminal history is certainly nothing to be proud of. He has a significant criminal history that continues to get more serious. And hopefully this has reached the peak and that he's done with his criminal activity."
Defendant claims that the trial court erred in sentencing him to the upper term because "[t]he witnesses at trial presented no grounds to support the trial court's determination that [defendant's] actions put Beltran and her unborn child into physical danger." In support of his claim, defendant claims that, because he "stopped the truck 10 to 15 feet away from the Prius and [Beltran] did not have to move out of the way to avoid being hit," she and her unborn baby were never in danger. We disagree with the defendant's interpretation of the facts.
Here, the evidence shows defendant slowly drove his truck towards the front gate, came face-to-face with Martinez, then accelerated directly towards Martinez and the Prius, which was parked in front of the gate and in which Beltran was sitting. Martinez described that defendant floored the gas "coming as fast as a truck could go right off going from 1 mile per hour, you know, as fast as he could." Defendant then threw his hands up and covered his face "like he's going to block the glass or something. He's going to blow through—try to hit me and blow through the car, my companion sitting there pregnant 60 feet from him, you know." Martinez went on to state defendant was about 40 to 50 feet away from him when defendant started driving at full speed. After Martinez realized what was going on, he had to jump out of defendant's way. Martinez stated that "I felt like [defendant] was going to run me over, but he hit the brakes and skidded." After Martinez jumped out of defendant's way, Martinez stated: "I was, like, oh my God. Cause I know she's pregnant. And I didn't really care about myself at that point. I was just thinking, okay, what was he going to do? Like, even let's say he hits me, he's going to—only another 8 feet from me was the car, 10 feet or whatever. So he was going to blow through me and then blow through the car with her sitting right there. He would hit her flush, like, hit her center. That's where he was aimed. So he went right through me, hit her, and then tried to get out of there."
Beltran also testified. She stated that she remembered the truck defendant drove was completely stopped. Then, all of a sudden, defendant "just stepped on the gas. From what I saw, it looked like he threw his hands out of the—out of the steering wheel and covered his face." Beltran stated that defendant "stepped on the gas. And then all of a sudden, it just stopped, put on the brakes and he skidded." However, prior to stopping, she stated that "it seemed like, well, this guy is not going to stop. So [Martinez] moved to his left and jumped out of the way." When the car stopped, Beltran stated that she knew "it was pretty close to the fence. [Defendant] could have hit the fence, and the car was right next to the fence. I was on the passenger's side." Beltran testified that she was scared because she believed that she was going to be hit by defendant's truck.
Based on this evidence presented at trial, we agree with the trial court that defendant's "actions put at risk not only the victim who was the victim of the underlying offense, but an unborn child, as well as the mother of that unborn child. Those actions are egregious to this court." Although defendant attempts to argue that the record does not support the court's assertion, the evidence points to the contrary. Defendant argues that if defendant's "actions endangered Beltran and her unborn child, then the prosecution would have charged [defendant] with additional assault offenses." Because the prosecution did not, defendant argues that defendant's actions never endangered Beltran and her unborn child. Moreover, defendant attempts to argue that it is "[m]ere speculation that [defendant] could have collided with Beltran or the Prius, if he had acted differently." Defendant's argument is without merit; we simply cannot agree. The evidence shows defendant accelerated his truck to a high speed aiming straight for Martinez and the Prius, where Beltran was a passenger. Although Martinez escaped serious injury by jumping out of defendant's way, and defendant applied the brakes, the evidence shows the truck skidded and stopped close to the Prius—only 10 to 15 feet away. Although defendant attempts to argue there was no danger to Beltran and her unborn child because the truck stopped 10 to 15 feet away, the truck could have easily continued to skid—based upon the high rate of speed—and hit the Prius. It was fortuitous that the truck was able to stop before hitting the Prius. We agree with the trial court that defendant's actions were egregious. The fact that the prosecution did not charge defendant for endangering Beltran does not aid him in support of his argument.
Based on the foregoing, the totality of the record supports the trial court's proper exercise of discretion in sentencing defendant.
B. DEFENSE COUNSEL DID NOT RENDER INEFFECTIVE ASSISTANCE OF COUNSEL (IAC)
Defendant claims that the case should be remanded because his trial counsel rendered IAC. We disagree.
In order to establish a claim of IAC, a defendant must demonstrate that "(1) counsel's performance was deficient in that it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficient representation prejudiced the defendant, i.e., there is a 'reasonable probability' that, but for counsel's failings, defendant would have obtained a more favorable result. [Citations.] A 'reasonable probability' is one that is enough to undermine confidence in the outcome." (People v. Dennis (1998) 17 Cal.4th 468, 540-541.) Hence, an IAC claim has two components: deficient performance and prejudice. (People v. Ledesma (1987) 43 Cal.3d 171, 216-217.) If defendant fails to establish either component, his claim fails. An appellate court must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." (Strickland v. Washington (1984) 466 U.S. 668, 697, 687-694.) Trial counsel's performance is deemed reasonably competent unless the record does not provide an explanation for his performance, or " ' "there simply could be no satisfactory explanation." ' " (People v. Lopez (2008) 42 Cal.4th 960, 966.)
In this case, defendant failed to establish either component of his IAC claim. First, defendant failed to establish that his counsel's performance fell below the objective standard of reasonableness. Here, defendant claims that his counsel's failure to object to the court's imposition of the upper term constituted IAC. In support of his argument, defendant claims that his counsel "had every reason to object to the upper term, especially when the court's recollection of the facts concerning Beltran conflicted with the record." However, as discussed in detail ante, defense counsel likely did not object to the imposition of the upper term because the trial court's interpretation of the events is supported by the record. Despite defendant's interpretation, that defendant did not intend to injure Beltran and her unborn child, the evidence shows defendant's reckless and egregious behavior could have caused injury to Beltran and her unborn child. Second, defendant also failed to establish that, but for his counsel's failure to object, he would have obtained a more favorable result. In this case, the trial court stated that defendant's "actions put at risk not only the victim who was the victim of the underlying offense, but an unborn child, as well as the mother of that unborn child. Those actions are egregious to this court." As noted above, we found evidence to support the court's characterization of defendant's actions. Therefore, even if defense counsel objected, he would not have obtained a more favorable result. Consequently, defendant's IAC argument fails.
Because we have addressed defendant's challenge to the trial court's imposition of the upper term, we need not address defendant's IAC argument that, "if counsel's failure to object to the upper term forfeited the appeal, then the failure to object constituted [IAC]." --------
C. THE TRIAL COURT ERRED IN IMPOSING THE TWO ON-BAIL SENTENCE ENHANCEMENTS
Defendant contends, and the People agree, that the trial court should have struck the duplicative on-bail enhancements.
Section 12022.1, subdivision (b) provides: "Any person arrested for a secondary offense that was alleged to have been committed while that person was released from custody on a primary offense shall be subject to a penalty enhancement of an additional two years, which shall be served consecutive to any other term imposed by the court." A "primary offense" is defined as "a felony offense for which a person has been released from custody on bail or on his or her own recognizance prior to the judgment becoming final." (§ 12022.1, subd. (a)(1).) A "secondary offense" is defined as "a felony offense alleged to have been committed while the person is released from custody for a primary offense." (§ 12022.1, subd. (a)(2).)
In People v. Coronado (1995) 12 Cal.4th 145, the California Supreme Court recognized "at least two types of sentence enhancements: (1) those which go to the nature of the offender; and (2) those which go to the nature of the offense." (Id. at p. 156.) "Enhancements for prior convictions—authorized by sections 667.5, 667.6 and 12022.1—are of the first sort. . . . Enhancements of the second kind enhance the several counts; those of the first kind, by contrast, have nothing to do with the particular counts, but, since they are related to the offender, are added only once as a step in arriving at the aggregate sentence." (People v. Tassell (1984) 36 Cal.3d 77, 90, overruled on other grounds in People v. Ewoldt (1994) 7 Cal.4th 380, 398-401; see also People v. Mackabee (1989) 214 Cal.App.3d 1250, 1261-1262; People v. Nguyen (1988) 204 Cal.App.3d 181, 195-196.) "Enhancements for prior convictions do not attach to particular counts but are added just once as the final step in computing the total sentence." (Mackabee, at pp. 1261-1262.) Because an on-bail enhancement is of the first sort, it may only be imposed once for each primary offense regardless of the number of secondary offenses. (Id. at p. 1262.)
In this case, at defendant's sentencing hearing, the trial court erroneously imposed two 2-year on-bail enhancements as to counts 3 and 4. Here, defendant committed the underlying offenses, counts 3 and 4 (the secondary offenses), while he was released from custody on the primary offense of assault with a deadly weapon (count 1). Since the section 12022.1 on-bail enhancements were based on bail or release in one case, the trial court was limited to enhancing defendant's sentence only once. Therefore, we will strike one of the on-bail enhancements.
DISPOSITION
The duplicative on-bail enhancement for count 4 is stricken. The trial court is directed to prepare an amended abstract of judgment and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. (§§ 1213, 1216.) In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: McKINSTER
Acting P. J. SLOUGH
J.