Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Los Angeles County Super. Ct. No. VA093738, John A. Torribio, Judge. Affirmed in part; reversed in part with directions.
Sunnie L. Daniels, 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, Paul M. Roadarmel, Jr. and Daniel C. Chang, Deputy Attorney General, for Plaintiff and Respondent.
TURNER, P. J.
I. INTRODUCTION
Defendant, Troy Eugene Swan, appeals from his convictions for: four counts of carjacking (Pen. Code, § 215, subd. (a)); one count of second degree robbery (§ 211); and two counts of assault with a deadly weapon (§ 245, subd. (a)(1).). The jury also found the victim in count 2 was over the age of 65 (§ 667.9, subd. (a)) and defendant inflicted great bodily injury in the commission of the assault with a deadly weapon charged in count 4. (§ 12022.7.) Defendant argues there was insufficient evidence to support his conviction for carjacking as to count 7 and the matter should be remanded for resentencing. The Attorney General argues: the trial court should have stayed the sentence imposed as to count 8 rather than count 7; the matter should be remanded for resentencing; and additional court security fees should have been imposed. We affirm in part, reverse in part, and remand for limited resentencing.
All further statutory references are to the Penal Code unless otherwise indicated.
II. FACTUAL BACKGROUND
A. Counts 7 and 8 (Sean Keliiholokai)
At approximately midnight on December 6, 2005, Mr. Keliiholokai, a student at Biola University, drove a silver 2006 Nissan 350Z convertible automobile into a parking structure on campus. The car belonged to Mr. Keliiholokai’s father. Two individuals in a green Honda Civic drove in behind him. The Honda driver parked two spaces away from where Mr. Keliiholokai was parked. Mr. Keliiholokai locked the Nissan, took his backpack from the trunk, and began to walk toward his dormitory. When Mr. Keliiholokai was approximately 50 feet away from his car, he heard footsteps behind him. Mr. Keliiholokai turned around. Defendant then lunged at Mr. Keliiholokai. Mr. Keliiholokai was struck in the lip by defendant’s fist. Defendant placed Mr. Keliiholokai in a choke hold. A second individual went through Mr. Keliiholokai’s pockets. The second individual took Mr. Keliiholokai’s cell phone, wallet, and car keys. Eventually defendant released his hold. Mr. Keliiholokai then fled. Thereafter, Mr. Keliiholokai heard the Nissan 350Z coming towards him. Mr. Keliiholokai jumped out of its path. The individual in the Honda Civic was watching the direction in which Mr. Keliiholokai ran. Mr. Keliiholokai notified campus security of the incident. Mr. Keliiholokai later identified defendant’s picture from a photographic lineup.
At approximately 10:40 p.m. on December 8, 2005, two days after Mr. Keliiholokai’s father’s Nissan was stolen, Los Angeles Police Officers Jason Sotelo and Greg Morrison were on patrol. Officer Sotelo saw Mr. Keliiholokai’s father’s silver Nissan 350ZX automobile stopped in an intersection, thereby causing traffic to go around the car. Officer Sotelo initiated a traffic stop by activating his lights. Defendant was driving Mr. Keliiholokai’s father’s Nissan. A Black woman was in the passenger seat. Defendant was told why he was stopped and asked for his driver’s license. Defendant was also asked about why there were no license plates on the Nissan. Defendant turned over his driver’s license. Officer Sotelo wrote down the vehicle identification number for the Nissan. Thereafter, Officer Sotelo entered the identification number into the police computer in the patrol car. Defendant started the Nissan and sped away. Officers Sotelo and Morrison pursued defendant. Officer Sotelo’s patrol car reached speeds of 70 to 75 miles per hour. Officer Sotelo was unable to catch up to the Nissan. Officer Sotelo later ran the identification number of the Nissan and learned it belonged to Mr. Keliiholokai’s father.
B. Counts 2, 3, and 4 (Teresa, Anthony, and Martha Rendon)
At approximately midnight on December 19, 2005, 76-year-old Teresa Rendon arrived at the driveway to her home after returning from work. Ms. Rendon drove into the driveway and turned off her 2002 white Impala two-door car. As this was occurring, a young girl got out of a van. The van was parked about 15 feet away. The girl was approximately five feet tall and chubby. The girl demanded Ms. Rendon’s car keys. The girl put a knife to Ms. Rendon’s neck. The girl also placed a gun to Ms. Rendon’s waist. Ms. Rendon turned over the keys because she was afraid. The girl unlocked the car, got in and drove away quickly, screeching the tires as she did so. The van drove away before the girl left in Ms. Rendon’s car. Ms. Rendon ran to her son’s home next door.
Ms. Rendon’s grandson, Anthony Rendon, Jr., was residing with her on December 19, 2005. Anthony heard dogs barking at Ms. Rendon’s home. When Anthony looked outside, he saw Ms. Rendon’s white Impala moving out of the driveway. Ms. Rendon was walking toward Anthony’s parents’ home next door. Thereafter, Mr. Rendon and his wife, Martha, got into his car and went to look for the Impala. They located Ms. Rendon’s car a few blocks away. The car was parked on the street in front of a house. Defendant was seated in the driver’s seat. Mr. Rendon parked his car at an angle in front of Ms. Rendon’s Impala. Martha got out of the car. Martha walked up to the driver’s side of Ms. Rendon’s Impala. The driver’s side door was open. Martha tried to pull defendant out of Ms. Rendon’s Impala. As Mr. Rendon attempted to assist Martha, defendant put the Impala in reverse and drove about 10 feet at a high rate of speed. Martha’s torso was inside the car at the time. Martha held onto the steering wheel. However, the door of the car dragged her over 45 feet. Martha fell to the ground. Martha was taken to the hospital. Martha suffered: three broken ribs; a broken shoulder bone and scapula bone; injury to her hip bone; and abrasions to her legs. Martha was treated with physical therapy for two months thereafter. Mr. Rendon was also knocked off his feet by the open car door. Mr. Rendon chased after defendant. But Mr. Rendon was unable to catch defendant. Mr. Rendon suffered “road rash” when he hit the ground.
For purposes of clarity and out of no disrespect, Anthony Rendon, Jr. will be referred to as “Anthony.” Anthony Rendon, Sr. will be referred to as Mr. Rendon. Martha Rendon will be referred to as “Martha.”
On December 21, 2005, Ms. Rendon identified the young woman involved in the carjacking from a photographic lineup shown by Detective Michael Ponce de Leon. Anthony and Martha identified defendant from a photographic lineup as the driver of the Impala. Martha said defendant was the one who she attempted to remove from the car.
C. Count 5 (Emilio Jimenez)
At approximately midnight on December 21, 2005, Mr. Jimenez drove his blue 2005 Silverado truck into his driveway. Mr. Jimenez got out of the truck. Mr. Jimenez began looking for his house key. Someone then ran towards Mr. Jimenez. The individual wore a beanie covering her face. At the time, Mr. Jimenez could not tell that it was a girl. Mr. Jimenez thought it was a neighbor “kid” playing a joke on him. The individual said, “‘Give me everything you have in your pants pocket.’” When Mr. Jimenez said he had nothing in his pants pocket, the individual told him to hand over the keys to his car. Mr. Jimenez pushed the individual out of the way. The girl then pulled out a semiautomatic black handgun and a knife. She put the knife to Mr. Jimenez’s throat and held the gun to his head. Her voice was high pitched and sounded like a “kid’s” voice. Mr. Jimenez was only able to see his assailant’s eyes. The kid got into Mr. Jimenez’s truck. Shortly thereafter, a gray van with a white stripe on the side went to the end of Mr. Jimenez’s street, turned around, and stopped in front of his driveway. Mr. Jimenez was approximately six feet away from the van. Defendant was in the driver’s seat. Defendant opened the door and was on one leg standing in the street. Defendant’s other leg remained inside the van. Defendant told Mr. Jimenez to stand in a neighbor’s yard. Defendant told Mr. Jimenez, “‘Don’t try to run or don’t try to do nothing dumb or I will shoot you.’” Defendant remained parked in front of Mr. Jimenez’s driveway for five or six minutes. Mr. Jimenez continued to look at defendant. The girl then drove away in Mr. Jimenez’s truck. Thereafter, defendant drove away in the van. The entire incident took approximately 10 to 15 minutes. Mr. Jimenez immediately called the police after the two individuals drove away.
At approximately 3:30 a.m. on December 21, 2005, Los Angeles Police Officer Steven Zaby responded to a call to recover a stolen car at the intersection of 65th and Western Streets. As Officer Zaby approached the Silverado truck, a 14 to 17- year-old Latina got into the car and drove away. Officer Zaby stopped the truck and arrested the young woman. A subsequent search of the truck revealed a replica plastic handgun and magazine, a folding silver and black knife, and a black ski mask. On December 21, 2005, Mr. Jimenez identified both defendant’s picture and that of a female from photographic lineups shown by Detective Ponce de Leon. Mr. Jimenez recognized the female’s eyes.
D. Count 6 (Joy Im)
At approximately 11 p.m. on January 25, 2006, Ms. Im was sitting in her parents’ white Nissan Altima. Ms. Im was parked on the street near the Biola University dormitory. Defendant approached Ms. Im’s car and leaned toward the driver’s door as though he had a question. Ms. Im rolled the window down a few inches. Defendant asked Ms. Im if she knew anyone who lived in or had access to the dorm. Ms. Im told defendant that she was waiting for someone but did not know anyone who lived there. Ms. Im spoke to defendant for two or three minutes. Ms. Im looked directly at defendant’s face during that time. Defendant looked around the area while remaining next to Ms. Im’s car. Ms. Im became uncomfortable. Defendant then put a black gun against the car window. Defendant told Ms. Im to get out of the car. Ms. Im immediately got out of the car. Defendant told her to drop the cellular phone in her hand. Ms. Im began to walk toward the dormitory. Ms. Im heard her car door slam and her tires screech. When Ms. Im turned around, her car was gone. When Ms. Im’s friend arrived, they contacted the campus security staff. Ms. Im later identified defendant from a photographic lineup as the individual that pointed the gun at her and took her car.
On February 1, 2006, Los Angeles County Sheriff’s Detective Neil Madden was on patrol. Detective Madden saw Ms. Im’s white Nissan Altima parked in the parking lot at the La Mirada Theater center. Detective Madden confirmed that the car was a stolen car. Detective Madden requested assistance from other sheriff’s units to contain the shopping center. Detective Madden met defendant in a nearby restaurant. When defendant was searched, he had the keys to Ms. Im’s car in his pocket. Detective Madden found a black pellet pistol that resembled a real gun from inside the Nissan.
III. DISCUSSION
A. Sufficiency of the Evidence
Defendant argues there was insufficient evidence to support his conviction for the carjacking as alleged in count 7. Defendant asserts no carjacking occurred because the car was not taken from Mr. Keliiholokai’s immediate presence. Defendant further argues that his conviction on this count constituted a violation of his federal due process rights. In reviewing a challenge of the sufficiency of the evidence, we apply the following standard of review: “[We] consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt.” (People v. Mincey (1992) 2 Cal.4th 408, 432, fn. omitted; People v. Carter (2005) 36 Cal.4th 1114, 1156; People v. Hayes (1990) 52 Cal.3d 577, 631; People v. Johnson (1980) 26 Cal.3d 557, 576.) Our sole function is to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979)443 U.S. 307, 319; People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Marshall (1997) 15 Cal.4th 1, 34; People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Barnes (1986) 42 Cal.3d 284, 303; Taylor v. Stainer (1994) 31 F.3d 907, 908-909.) The standard of review is the same in cases where the prosecution relies primarily on circumstantial evidence. (People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Stanley (1995) 10 Cal.4th 764, 792; People v. Bloom (1989) 48 Cal.3d 1194, 1208; People v. Bean (1988) 46 Cal.3d 919, 932.) The California Supreme Court has held, “Reversal on this ground is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’” (People v. Bolin, supra, 18 Cal.4th at p. 331, quoting People v. Redmond (1969) 71 Cal.2d 745, 755.)
Section 215, subdivision (a) defines carjacking as follows, “‘Carjacking’ is the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence, or from the person or immediate presence of a passenger of the motor vehicle, against his or her will and with the intent to either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession, accomplished by means of force or fear.” In People v. Medina (1995) 39 Cal.App.4th 643, 651, our colleagues in the Court of Appeal for the Fifth Appellate District held that “immediate presence [] encompass[es] an area in proximity to” the car that is stolen. (See also People v. Coryell (2003) 110 Cal.App.4th 1299, 1303-1304 [passenger who abandoned the automobile after seeing her boyfriend being beaten was also a victim of carjacking]; People v. O’Neil (1997) 56 Cal.App.4th 1126, 1131 [sufficient evidence of carjacking where truck owner saw it being taken from his driveway from his window, ran outside and gave chase]; People v. Hamilton (1995) 40 Cal.App.4th 1137, 1140-1144 [evidence sufficient to convict defendant of carjacking against passenger who is outside the car].)
In this case, Mr. Keliiholokai had been followed into the parking structure by defendant. Mr. Keliiholokai got out of the Nissan and began walking away. Then, defendant lunged at Mr. Keliiholokai. Mr. Keliiholokai was then hit and placed in a chokehold. Thereafter, defendant’s companion took Mr. Keliiholokai’s keys and other belongings. Defendant then drove away in Mr. Keliiholokai’s father’s car. The jury would reasonably find that because Mr. Keliiholokai was approximately 50 feet away from the car at the time he was assaulted did not remove him from the “immediate presence” of the Nissan. Mr. Keliiholokai had his car keys, retained possession of the Nissan, and could have returned to the automobile within moments. In People v. Hoard (2002) 103 Cal.App.4th 599, 608-609, our colleagues in the Court of Appeal for the Fourth Appellate District found similar circumstances constituted carjacking: “Although [the victim] was not physically present in the parking lot when [the defendant] drove the car away, she had been forced to relinquish her car keys. Otherwise, she could have kept possession and control of the keys and her car. Although not the ‘classic’ carjacking scenario, it was a carjacking all the same.” Substantial evidence supports defendant’s conviction for carjacking Mr. Keliiholokai’s father’s car.
B. Sentencing
1. Great bodily injury enhancement
Defendant argues and the Attorney General concedes that the trial court improperly imposed a three-year great bodily injury enhancement pursuant to section 12022.7, subdivision (a) as to count 2 rather than count 4. We agree. The jury found the great bodily injury enhancement true as to the assault with a deadly weapon against Martha in count 4. However, at the time of sentencing, the trial court stated: “I think what I’ll do is this: I’ll use the - - I’ll impose the [great bodily injury] of 3 [years]. That’s to run consecutive.” The clerk then inquired whether that enhancement was imposed as to count 2. The trial court responded, “That’s as to count 2.” Defense counsel then corrected the court by stating, “The [great bodily injury] is on count 4.” The trial court then stated: “But I can run that - - I can pick that. I can take that enhancement and attach it anywhere I want. I don’t have to attach it to that count. That’s - - That’s my thought process so the record is clear.” When defendant was resentenced on April 20, 2007, pursuant to Cunningham v. California (2007) 549 U.S. ___, ___, 127 S.Ct. 856, 868 the trial court affirmed the sentence as previously imposed.
In People v. Dotson (1997) 16 Cal.4th 547, 554, footnote 6, the California Supreme Court held: “A claim that a sentence is unauthorized . . . may be raised for the first time on appeal, and is subject to judicial correction whenever the error comes to the attention of the reviewing court.” (Accord, People v. Scott (1994) 9 Cal.4th 331, 354; In re Ricky H. (1981) 30 Cal.3d 176, 191; People v. Serrato (1973) 9 Cal.3d 753, 763, disapproved on other grounds in People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1.) In People v. Chagolla (1983) 144 Cal.App.3d 422, 433-434, our colleagues in the Court of Appeal for the Fourth Appellate District held that the trial court’s application of the great bodily injury enhancement to the wrong count constituted an unauthorized sentence which could be corrected. The trial court did not have the authority to apply the great bodily injury enhancement to count 2 because it specifically related to the victim in count 4 as charged in the information and found by the jury. Upon issuance of the remittitur, the judgment is to be modified to impose the great bodily finding on count 4.
2. The section 667.9, subdivision (a) enhancement finding as to count 2.
Following our request for further briefing, the Attorney General argues that the trial court should have imposed, as to count 2, a one-year enhancement pursuant to section 667.9, subdivision (a) which provides: “Any person who commits one or more of the crimes specified in subdivision (c) against a person who is 65 years of age or older . . . and that disability or condition is known or reasonably should be known to the person committing the crime, shall receive a one-year enhancement for each violation.” (Italics added.) Carjacking is included as a qualifying crime in section 667.9, subdivision (c)(4). At the time of sentencing, the trial court stated, “And then what’s the over 65 allegation?” The prosecutor responded, “That’s one year.” The trial court then asked for the Penal Code section related to that finding. Thereafter, the trial court proceeded to impose the section 12022.7, subdivision (a) great bodily injury enhancement as set forth above. We have revised the imposition of the section 12022.7, subdivision (a) great bodily injury finding as to count 2. But the trial court neglected to impose the section 667.9, subdivision (a) enhancement on count 2 or give an explanation for not doing so. As noted previously, such an unauthorized sentence is subject to judicial correction whenever the error comes to the attention of the reviewing court. (People v. Dotson, supra, 16 Cal.4th at p. 554, footnote 6; People v. Scott, supra, 9 Cal.4th at p. 354; In re Ricky H., supra, 30 Cal.3d at p. 191; People v. Serrato, supra, 9 Cal.3d at p. 763.) The California Supreme Court has held, “[A]bsent a clear legislative direction to the contrary, a trial court retains its authority under section 1385 to strike an enhancement.” (People v. Thomas (1992) 4 Cal.4th 206, 210; People v. Rivas (2004) 119 Cal.App.4th 565, 571; People v. Wilson (2002) 95 Cal.App.4th 198, 202.) In addition, the mandatory language used in legislation such as “shall” and “without limitation” have been held insufficient to support a finding of a legislative intention to divest trial courts of discretion under section 1385 to strike enhancements. (People v. Wilson, supra, 95 Cal.App.4th at p. 202; accord People v. Fritz (1985) 40 Cal.3d 227, 230-231; People v. Williams (1981) 30 Cal.3d 470, 478-483.) Here, the record is silent regarding the trial court’s failure to either impose or strike the section 667.5, subdivision (a) enhancement. Defendant had but one prior felony conviction. But these crimes were extremely violent and consisted of repeated carjackings over a period of weeks. At the resentencing hearing on April 12, 2007, the trial court stated: “The court notes that [defendant] was convicted of three separate carjackings, which occurred on three separate days. So we have multiple crimes. [¶] Secondly, we have multiple victims. All of the victims were particular[ly] vulnerable when they were attacked going to and from their cars. [¶] There was a great bodily injury allegation found true. There was an over 65 allegation found true. [¶] So combining, multiple victims, multiple crimes, all of - - three of them very serious, the court believes its sentence is appropriate and stands by it.” (In fact, the defendant was convicted of four counts of carjacking.) On remand, the trial court must either impose the section 667.9, subdivision (a) enhancement as to count 2 or strike it pursuant to section 1385, subdivision (a) if such is appropriate. If the trial court elects to strike the section 667.9 subdivision (a) enhancement, it must explain its reasoning for doing so in the clerk’s minutes as explicitly required by section 1385, subdivision (a). (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 531; People v. Orin (1975) 13 Cal.3d 937, 944.)
3. Stayed sentence as to count 7
Following our request for further briefing, the Attorney General argues that the trial court improperly stayed the sentence imposed as to the count 7 carjacking conviction pursuant to section 654, subdivision (a) and imposed the sentence for the count 8 robbery conviction. We agree. Section 654, subdivision (a) provides: “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.” (Italics added.) In this case, the trial court imposed the high term of nine years as to count 7 but stayed it pursuant to section 654, subdivision (a) and imposed one year or one-third the midterm for the count 8 robbery. The sentence for carjacking is longer than the one for second degree robbery. (§§ 213, subd. (a)(2), 215, subd. (b).) The longer of the two sentences must be imposed. (People v. Kramer (2002) 29 Cal.4th 720, 723; see Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) “Punishment,” §148, p. 212.) The sentence as to counts 7 and 8 are reversed. Upon issuance of the remittitur, the judgment is to be modified to impose the high term of nine years as to count 7, the carjacking where the victim is Mr. Keliiholokai. The trial court is to then select a full term for count 8, the second degree robbery of Mr. Keliiholokai. The trial court is to then stay the full term for robbery as charged in count 8 pursuant to section 654, subdivision (a). (People v. Ortega (1998) 19 Cal.4th 686, 700; In re Travis W. (2003) 107 Cal.App.4th 368, 375.)
4. Court security fees
The parties agree that section 1465.8, subdivision (a)(1) provides that a court security fee must be imposed as to each conviction for a criminal offense. (People v. Schoeb (2005) 132 Cal.App.4th 861, 865-866.) In this case, the trial court imposed only one $20 court security fee. Defendant was convicted of 7 counts. The $20 court security fee should be imposed but stayed as to any stayed counts. There is no merit to defendant’s argument the court security fee may not be imposed on a stayed count. It must be imposed and then stayed. The trial court is to actively and personally insure the clerk accurately prepares a correct amended abstract of judgment which reflects all of the sentences and fees imposed. (People v. Acosta (2002) 29 Cal.4th 105, 109, fn. 2; People v. Chan ((2005) 128 Cal.App.4th 408, 425-426.)
IV. DISPOSITION
Upon issuance of the remittitur, the following is to occur: count 2 is modified to delete the great bodily injury finding; count 4 is modified to add the great bodily injury finding of three years; as to count 2, the trial court is to either impose the section 667.9, subdivision (a) enhancement or strike it in full compliance with section 1385, subdivision (a) as discussed in the body of this opinion; the trial court is to set aside the section 654, subdivision (a) stay as to count 7 and impose a nine year sentence; the trial court is to select the low, middle, or high term for the robbery charged in count 8 and then order that sentence stayed pursuant to section 654, subdivision (a); the trial court is to impose $20 court security fees on all counts but stay the collection of the fee on count 8. The judgment is affirmed in all other respects. The trial court is to personally insure the abstract of judgment correctly sets forth the sentence and fees imposed.
We concur: ARMSTRONG, J., KRIEGLER, J.