Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. NA072145, Tomson T. Ong, Judge.
Jennifer A. Mannix, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey, Lance E. Winters, and Robert David Breton, Deputy Attorneys General, for Plaintiff and Respondent.
TURNER, P. J.
I. INTRODUCTION
Defendant, Shaun Durand Lee, appeals from his convictions for carjacking (Pen. Code, § 215, subd. (a)), grand theft of an automobile (§ 487, subd. (d)(1)), and felony petty theft with a prior conviction. (§ 666.) Also, the trial court found he was previously convicted of a serious felony and served three prior prison terms. (§§ 667, subds. (b)-(i), 667.5, subd. (b), 1170.12.) Defendant argues the trial court improperly relied upon his prior juvenile adjudication to double his sentence and imposed a consecutive sentence for felony petty theft. Defendant also argues that the sentence imposed as to his petty theft conviction must be stayed pursuant to section 654, subdivision (a). We affirm with a minor modification.
All further statutory references are to the Penal Code unless otherwise indicated.
II. FACTUAL BACKGROUND
We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Elliot (2005) 37 Cal.4th 453, 466; People v. Posey (2004) 32 Cal.4th 193, 201; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) On October 25, 2006, Mechelle Hooper took her 2002 burgundy Nissan Altima automobile to a car wash on Pacific Coast Highway and Atlantic Avenue. Ms. Hooper was vacuuming her car approximately 20 feet from a change machine. Defendant was loitering in front of the change machine. Ms. Hooper had left the car doors unlocked and the driver’s door open. Ms. Hooper’s key was in the ignition. Ms. Hooper’s purse was on the passenger seat of the car. The purse was not visible unless an individual was standing adjacent to the car because it was below the window level. As Ms. Hooper opened the trunk of her car, she heard the engine start up. Ms. Hooper ran to the driver’s side door, which remained opened. Defendant was in the driver’s seat of Ms. Hooper’s car. Ms. Hooper asked defendant why he was stealing her car. Defendant’s hands were on the steering wheel. Defendant did not look at Ms. Hooper, who repeatedly asked him: “Why are you doing this[?] Please get out of the car.” Ms. Hooper was standing inside the open door frame of her driver’s side door. Within seconds, defendant drove off in Ms. Hooper’s car. Ms. Hooper received a bruise on her right arm from the departing automobile. Ms. Hooper yelled to others present, “Somebody help me, this guy stole my car.” Ms. Hooper ran after her car. An employee of the car wash ran after Ms. Hooper. The car wash employee gave Ms. Hooper his cellular telephone to call the police.
Douglas McVay, who was driving his company truck, was stopped at a traffic signal at Atlantic Boulevard and Pacific Coast Highway at approximately 9 a.m. on October 25, 2006. Mr. McVay saw defendant near the change machine of the car wash. Mr. McVay saw defendant jump into a car. The driver’s door of the car and the trunk were both open. A woman was standing at the trunk of the car. Defendant drove out of the car wash onto Pacific Coast Highway, squealing the tires as he did so. The woman who had been at the trunk of the car and two Hispanic men ran after the car. The woman was screaming, “My car, my car.” Mr. McVay saw defendant drive north on Pacific Coast Highway. Mr. McVay decided to take a cross street to his shop. Mr. McVay saw the car a block away with the trunk still open. Mr. McVay circled the block and returned to where he last saw Ms. Hooper’s stolen car. Mr. McVay saw defendant shut the trunk of the car and begin walking. Defendant had a black bag and was carrying something between his arms and waist. Defendant wore dark navy blue shorts with a navy blue jacket, a white T-shirt, and white socks that were pulled up toward his knees. Defendant’s hair was “wrapped back” in “buns.” Mr. McVay saw defendant walk south on Pasadena Street. Mr. McVay went back toward the car wash. Mr. McVay picked up Ms. Hooper, who was at Pasadena Street and Pacific Coast Highway. Mr. McVay told Ms. Hooper that he found her car. Ms. Hooper was talking on the cellular telephone with the police. Mr. McVay drove Ms. Hooper to her car. Ms. Hooper looked inside the car. Ms. Hooper’s wallet, cellular telephone, and a black bag containing some hair extensions were missing. Mr. McVay waited with Ms. Hooper until the police arrived. The police officers questioned Mr. McVay separately from Ms. Hooper about the incident.
Long Beach Police Officer Jeremy Runnels responded to a radio broadcast regarding the carjacking. Officer Runnels was given a description of the individual. Officer Runnels saw defendant walking on Pacific Coast Highway, approximately six blocks from the car wash. Defendant was wearing a blue “Dickie” jacket, a white T-shirt, blue “Dickie” shorts, and white socks pulled up to his knees. Officer Runnels detained defendant. Defendant was searched by Officer Runnels. Officer Runnels found in defendant’s jacket pocket: a pink wallet containing Ms. Hooper’s identification; a checkbook with Ms. Hooper’s name on it; a cellular telephone; a spray bottle; a brush; a black plastic bag; and hair extensions.
Other officers drove Mr. McVay and Ms. Hooper separately to where defendant was detained. Mr. McVay identified defendant as the individual she saw at the car wash and the one who drove away in her car. When Ms. Hooper saw defendant she said, “‘Yes, that’s him.’” Ms. Hooper recognized defendant as the same individual at trial.
After being advised of his constitutional rights, defendant was questioned. When initially questioned about the incident, defendant denied being at the car wash. After defendant denied being involved in the carjacking, Officer Runnels testified the following occurred, “I told him that since we had the wallet with the victim’s name on it that I thought he was lying, and if he wanted to continue to lie to me, then let’s stop talking.” Defendant then changed his story. Officer Runnels described defendant’s new explanation thusly: “He stated that him and a friend who he did not know the name of were in the area of P.C.H. and M.L.K. walking westbound towards Atlantic. He stated that his friend saw the victim’s car, jumped into the driver’s seat, he jumped into the passenger seat. His friend drove the car around the block, and that’s when he took the item that he had.”
III. DISCUSSION
A. Use of Prior Juvenile Adjudication as a Prior Conviction
Defendant argues that the trial court violated his constitutional rights to due process and jury trial by using his prior juvenile adjudication for robbery as a qualifying prior serious felony pursuant to sections 667, subdivision (d)(3) and 1170.12, subdivision (b)(3). Citing to Apprendi v. New Jersey (2000) 530 U.S. 466, 476 and United States v. Tighe (9th Cir. 2001) 266 F.3d 1187, 1194, defendant argues his juvenile adjudication may not be considered a prior serious felony because he was not afforded the right to a jury trial at the time his prior case was adjudicated. We and other California Courts of Appeal have consistently rejected that argument. (See People v. Buchanan (2006) 143 Cal.App.4th 139, 149; People v. Andrades (2003) 113 Cal.App.4th 817, 834; People v. Lee (2003) 111 Cal.App.4th 1310, 1312-1316; People v. Smith (2003) 110 Cal.App.4th 1072, 1077-1078; People v. Bowden (2002) 102 Cal.App.4th 387, 391-394; People v. Fowler (1999) 72 Cal.App.4th 581, 586.) The statute effective at the time defendant committed the instant offense provided for the imposition of a longer term of imprisonment based upon a prior juvenile adjudication of a serious violent felony. (See People v. Garcia (1999) 21 Cal.4th 1, 13 “[W]e interpret section 667, subdivision (d)(3) according to its terms . . . Under paragraph (B), a prior juvenile adjudication qualifies as a prior felony conviction for Three Strikes purposes only if the prior offense is listed in Welfare and Institutions Code section 707(b) or is classified as ‘serious’ or ‘violent’”]; see In re Jensen (2001) 92 Cal.App.4th 262, 268.) Here, defendant’s prior juvenile adjudication met the statutory criteria. Although this issue is currently pending before the California Supreme Court in People v. Nguyen, review granted October 10, 2007, S154847, we decline to depart from the statutory mandate and consistent analysis of our Courts of Appeal.
Section 667 provides in part: “(d) [A] prior conviction of a felony shall be defined as: [¶] . . . [¶] (3) A prior juvenile adjudication shall constitute a prior felony conviction for purposes of sentence enhancement if: [¶] (A) The juvenile was 16 years of age or older at the time he or she committed the prior offense. [¶] (B) The prior offense is listed in subdivision (b) of Section 707 of the Welfare and Institutions Code or described in paragraph (1) or (2) as a felony. [¶] (C) The juvenile was found to be a fit and proper subject to be dealt with under the juvenile court law. [¶] (D) The juvenile was adjudged a ward of the juvenile court within the meaning of Section 602 of the Welfare and Institutions Code because the person committed an offense listed in subdivision (b) of Section 707 of the Welfare and Institutions Code.” Section 1170.12, subdivision (b)(3) provides essentially the same.
B. Petty Theft with a Prior Conviction Sentence
Defendant argues the trial court should have stayed the sentence imposed on the petty theft with a prior conviction pursuant to section 654, subdivision (a) because it was part of an indivisible transaction with the carjacking offense. Section 654, subdivision (a) states, “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. . . .” We review the trial court’s order imposing multiple sentences in the context of a section 654, subdivision (a) question for substantial evidence. (People v. Osband (1996) 13 Cal.4th 622, 730-731; People v. Downey (2000) 82 Cal.App.4th 899, 917; People v. Oseguera (1993) 20 Cal.App.4th 290, 294; People v. Saffle (1992) 4 Cal.App.4th 434, 438.) The trial court has broad latitude in determining whether section 654, subdivision (a) applies in a given case. (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312; People v. Herrera (1999) 70 Cal.App.4th 1456, 1466.) In conducting the substantial evidence analysis we view the facts in the following fashion: “We must ‘view the evidence in a light most favorable to the respondent and presume in support of the order the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]’ (People v. Holly (1976) 62 Cal.App.3d 797, 803.)” (People v. McGuire (1993) 14 Cal.App.4th 687, 698; see also People v. Green (1996) 50 Cal.App.4th 1076, 1085.) Multiple criminal objectives may divide those acts occurring closely together in time. (People v. Hicks (1993) 6 Cal.4th 784, 788-789; People v. Harrison (1989) 48 Cal.3d 321, 336; People v. Davey (2005) 133 Cal.App.4th 384, 390.)
In this case, defendant spoke to Officer Runnels. The carjacking was complete when defendant took Ms. Hooper’s belongings. The items were on the passenger seat below the window level and were not visible to defendant when he stood 20 feet away from the car. Defendant ran to the car, got into the driver’s seat, and drove away despite Ms. Hooper’s pleas to get out of her car. Defendant stopped the car and then took the personal belongings when he left the car. The trial court could reasonably conclude the carjacking was complete before defendant abandoned the car and decided to take Ms. Hooper’s personal belongings. Defense counsel argued: “We have no direct evidence that [defendant] knew what was in that car. We have no direct evidence that was his motive when he took that car. What we do know is that he took the car. But as the property as [the prosecutor] described was clearly not visible below the window line, there is no way at the time [defendant] got into that car he planned to commit a robbery.” After consecutive sentences were imposed as to counts 1 and 2, the trial court noted, “Because these offense[s] are committed at discreet times, the carjacking, the taking of the car, the theft was after the carjacking has been perfected.” The trial court could reasonably find defendant’s intentions when the carjacking commenced were distinct from a later developed mens rea concerning Ms. Hooper’s purse. Given the trial court’s express and implied findings, the sentence imposed as to count 2 is not subject to the provisions of section 654, subdivision (a).
C. Consecutive Sentence
Defendant argues that the trial court improperly imposed a consecutive sentence as to count 2, the felony petty theft charge. Defendant again argues the trial court improperly found the offenses separate and distinct. As a result, defendant concludes that a consecutive sentence should not have been imposed because the crimes involved an indivisible course of conduct. Moreover, defendant argues that the trial court failed to address any factors in mitigation or aggravation relative to the imposition of consecutive term. The Attorney General argues that section 667, subdivision (c)(6) mandates consecutive sentences when the current felony offenses were not committed on the same occasion and did not arise from the same set of operative facts. Section 667 provides in pertinent part: “(c) . . .[¶] . . .[¶] . . . (6) If there is a current conviction for more than one felony count not committed on the same occasion, and not arising from the same set of operative facts, the court shall sentence the defendant consecutively on each count pursuant to subdivision (e). [¶] (7) If there is a current conviction for more than one serious or violent felony as described in paragraph (6), the court shall impose the sentence for each conviction consecutive to the sentence for any other conviction for which the defendant may be consecutively sentenced in the manner prescribed by law.” In People v. Deloza (1998) 18 Cal.4th 585, 595, 599, the California Supreme Court construed the term “committed on the same occasion” in section 667, subdivision (c)(6) to “refer at least to a close temporal and spatial proximity between the acts underlying the two counts. The crimes in Deloza involving the robbery of a group of individuals at one location in a short period of time were found to clearly have been “committed on the same occasion” within the meaning of section 667, subdivision (c)(6). Therefore, the Supreme Court did not construe the “arising from the same set of operative facts” language.
The California Supreme Court did address both issues in People v. Lawrence (2000) 24 Cal.4th 219, 225-234. In Lawrence, the defendant had stolen liquor from a store and fled. While fleeing, the defendant ran into the backyard of a nearby residence, where he assaulted two citizens. The Supreme Court noted that in People v. Deloza, supra, 18 Cal.4th at pages 591-595: “[W]e rejected an argument that the analysis for determining whether section 1170.12, subdivision (a)(6) and (7) (see also § 667, subd. (c)(6) and (7)) requires consecutive sentencing is coextensive with the test for determining whether section 654 permits multiple punishment. [Citation.] We explained that section 654 is irrelevant to the question of whether multiple current convictions are sentenced concurrently or consecutively under the three strikes law, because section 654 does not allow any multiple punishment, whether concurrent or consecutive, and the analysis performed under the two statutes are entirely separate. [Citation.]” (People v. Lawrence, supra, 24 Cal.4th at p. 226.) The Lawrence court went on to hold that because there was no ambiguity in the term “committed on the same occasion,” its “usual and ordinary meaning” must control. (People v. Lawrence, supra, 24 Cal.4th at p. 229; People v. Loeun (1997) 17 Cal.4th 1, 9.) Utilizing the “close spatial and temporal proximity” test of Deloza, our Supreme Court held in Lawrence that the defendant’s theft from the market and subsequent aggravated assaults were not committed on the same occasion. (People v. Lawrence, supra, 24 Cal.4th at p. 229.) In Lawrence, our Supreme Court explained: “We do not believe it was intended that the mandatory consecutive-sentencing provision of the three strikes law not apply to the commission of different crimes perpetrated against different groups of victims merely because the later crimes occurred while the defendant was still in flight from the initial crime scene. No principle of criminal law shields a defendant from conviction of all such offenses, nor does section 654 prohibit multiple punishment for crimes of violence against multiple victims.” (Ibid.; People v. King (1993) 5 Cal.4th 59, 78.) Finally, in Lawrence our Supreme Court held the offenses did not arise from the same set of operative facts: “The first crime involved an act of theft directed at one group of victims, the second involved assaultive conduct directed at an unrelated pair of victims. The two criminal episodes were separated spacially [sic] by at least one to three city blocks, and temporally by two to three or more minutes . . . .” (People v. Lawrence, supra, 24 Cal.4th at p. 234.)
In People v. Jenkins (2001) 86 Cal.App.4th 699, 706-707, the defendant assaulted one victim, Jamila Coleman, his girlfriend, at the top of the stairs. The defendant then went downstairs and retrieved a knife. The defendant then went back up the stairs and assaulted his girlfriend’s daughter, Arlisa. We synthesized the facts thusly: “[D]efendant assaulted Jamila at the top of the stairs while he was trying to enter the bedroom where Arlisa was located. Defendant pushed Jamila down the stairs and in so doing completed his assault on her that formed the basis of count 3. He did not then immediately proceed to continue his efforts to enter the bedroom, but rather chose to go down the stairs, go past Jamila, enter the kitchen, and rummage through the drawers to obtain a knife. Meanwhile, the manager had entered the apartment. When defendant finally exited the kitchen after arming himself with a knife, he pushed his way past the manager and went back up the stairs. Once he arrived at the top of the stairs he proceeded to attack Arlisa with the knife.” (Ibid.) Based upon Lawrence, we held: “Clearly, defendant had completed his assault on Jamila well before he stabbed Arlisa. Further, his criminal conduct was interrupted for a significant time while he went downstairs, looked for a weapon, located a weapon, armed himself with the knife, and then pushed the manager out of the way before proceeding back up the stairs, where he stabbed Arlisa. He thus went from one location on the second floor of the apartment to another location on the first floor of the apartment. His criminal conduct was further delayed while he searched for a weapon on the first floor. After he obtained a knife in the kitchen, he made a separate and intentional choice to push the manager out of the way, go back up the stairs, and try to kill Arlisa. His offenses against Jamila and Arlisa were in fact separated both in time and location, although they all occurred within the same apartment. Moreover, there were different people present during each offense. In order to stab Arlisa he had to get past the manager, who had not even arrived on the scene until after his assault on Jamila was completed. Additionally, the elements of the attempted murder of Arlisa and the assault on Jamila were different. Finally, we note that each offense was separated by a sufficient amount of time in which defendant could consider the consequences of continuing to commit new criminal acts. Under such circumstances, we find that the offenses were not committed on the same occasion and did not arise from the same set of operative facts.” (People v. Jenkins, supra, 86 Cal.App.4th at p. 707.)
In this case, there were also two separate criminal offenses which did not occur on the same occasion. Like the offenses in Lawrence, the two criminal episodes were separated spatially by several blocks and temporally by some two or three minutes. Moreover, they did not involve the same set of operative facts. Defendant carjacked the car from Ms. Hooper and drove it away. Defendant then parked the car several blocks away. When defendant got out of the car, he took Ms. Hooper’s personal belongings. The Supreme Court found the rationale of People v. Durant (1999) 68 Cal.App.4th 1393, 1405-1406 instructive: “‘[W]here the elements of the original crime have been satisfied, any crime subsequently committed will not arise from the same set of operative facts underlying the completed crime; rather such crime is necessarily committed at a different time.’” (People v. Lawrence, supra, 24 Cal.4th at p. 232.) The same is true in this case. As a result, the trial court could properly impose consecutive sentencing pursuant to section 667, subdivision (c)(6).
D. Court Security Fees
Following our request for further briefing, the Attorney General argues that the trial court should have imposed a $20 court security fee pursuant to section 1465.8, subdivision (a)(1) as to each count. We agree. (See People v. Crittle (2007) 154 Cal.App.4th 368, 371; People v. Schoeb (2005) 132 Cal.App.4th 861, 865-866.) The trial court imposed only one section 1465.8, subdivision (a)(1) court security fee. Therefore, three section 1465.8, subdivision (a)(1) fees shall be imposed. The trial court is to personally insure the abstract of judgment is corrected to fully comport with the modifications we have ordered. (People v. Acosta (2002) 29 Cal.4th 105, 110, fn. 2; People v. Chan (2005) 128 Cal.App.4th 408, 425-426.)
IV. DISPOSITION
The judgment is modified to impose three $20 Penal Code section 1468.5, subdivision (a) court security fees. Upon remittitur issuance, the superior court clerk shall forward an amended abstract of judgment to the Department of Corrections and Rehabilitation. The judgment is affirmed in all other respects.
I concur: ARMSTRONG, J.
MOSK, J., Concurring and Dissenting
I believe that the defendant’s position that a juvenile adjudication should not be considered for purposes of an enhancement of the sentence pursuant to Penal Code section 667, subdivision (d)(3) has some merit. (See People v. Smith (2003) 110 Cal.App.4th 1072, 1082 (conc. & dis. opn. of Johnson, J.); People v. Lee (2003) 111 Cal.App.4th 1310, 1319 (dis. opn. of Rushing, P. J.).) But because the Courts of Appeal have not adopted this position and the issue is before the Supreme Court, I am not prepared to disagree with the majority at this time.
I do disagree with the majority with respect to the Penal Code section 654 issue. It seems to me that defendant, when he stole the car, intended to and did take the car and everything in it, including the wallet, cellular telephone and black bag containing some cosmetic products. Because the course of conduct of stealing the car and the objects in it comprises an indivisible transaction, the sentence imposed on the petty theft with a prior conviction should have been stayed pursuant to Penal Code section 654, subdivision (a). Except for this, I concur in the judgment