Filed 1/23/20 P. v. Sinclair CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(El Dorado)

—-

THE PEOPLE,

Plaintiff and Respondent,

v.

CHARLES LEROY SINCLAIR,

Defendant and Appellant.

C088135

(Super. Ct. No. P17CRF0333)

Convicted of carjacking, defendant Charles Leroy Sinclair contends there is insufficient evidence to show the force he used against the victim was related to the taking of the victim’s vehicle. In supplemental briefing, he contends further that he is entitled to the striking of two sentence enhancements under Penal Code section 667.5, subdivision (b), and to a hearing on his ability to pay the fines, fees, and assessments imposed at sentencing. We shall strike the enhancements and otherwise affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant and codefendant Penny Ann Casio were charged with one count of carjacking. (§ 215, subd. (a).) After jury trial, defendant was convicted, but his codefendant was acquitted. Defendant admitted three prior felony convictions and one prior prison term.

Defendant was sentenced to the upper term of nine years in state prison, a one-year enhancement under section 667.5, former subdivision (b), for a prior conviction for violating Vehicle Code section 2800.2 and Health and Safety Code section 11378, and a second one-year enhancement (stayed) for violating section 273.5, for a total sentence of 10 years. The trial court imposed a $300 restitution fine (§ 1202.4, subd. (b)), a matching suspended parole revocation restitution fine (§ 1202.45), a $40 court operations fee (§ 1465.8), and a $30 criminal conviction fee (Gov. Code, § 70373).

Prosecution Case

The victim, Michael S., married Miranda S. in June 2016. According to the victim, they jointly bought a used BMW convertible which was placed in Miranda S.’s name; she sometimes let him drive the car.

In January 2017, the couple became estranged and moved out of the home of Miranda S.’s mother, codefendant Casio. They lived separately on property belonging to John K. in the former junkyard of a closed auto center in rural El Dorado County, either in his hilltop home or in a downhill trailer.

On August 11, 2017, finding the victim at the trailer with another woman, Miranda S. pepper-sprayed him. Two days later, she was arrested and jailed for domestic violence.

Miranda S. left the BMW in John K.’s front yard and left the keys with him. She did not intend or give permission for anyone other than John K. and his girlfriend to drive the car, but did not give John K. any specific instructions on that topic. John K. left the car keys on his porch railing.

According to the victim, he asked John K. if he could use the car to pick up a generator. John K. said yes, and the victim took the car keys.

While in jail, Miranda S. spoke to family friend Lynn C.; S.C., a neighbor of John K., was also present. Miranda S. told Lynn C. that she wanted to prevent the victim from taking the BMW and asked S.C. to “make sure” that did not happen, but did not ask Lynn C. or S.C. to move the car. Miranda S. did not speak to her mother, codefendant Casio, in jail, and did not give Casio or defendant permission to possess the car.

At 8:00 or 8:30 that evening, four people, including defendant and codefendant Casio, drove to John K.’s home. As they were speaking to John K., he spotted the BMW being driven by the victim downhill toward the trailer and pointed it out to the group. They got back into their car and drove in the same direction.

The victim, accompanied by a passenger to whom the victim wanted to sell a car, drove past his trailer and stopped behind that car. The BMW’s convertible top was down.

The car containing defendant and codefendant Casio pulled up close behind the BMW. The victim’s passenger jumped out.

Hearing yelling, the victim looked back. Defendant, leaning over him, hit him in the mouth, punching his teeth through his lower lip. The victim could not get out of the car or move it forward.

Codefendant Casio placed herself in front of the BMW, pulled defendant off of the victim, and grabbed the car keys out of the ignition. Defendant and Casio ordered the victim out of the car. Defendant emptied the victim’s pockets and took a buck knife out of the car. The victim walked back to his trailer as the group that included defendant and Casio drove off in the BMW.

Defense Case

Codefendant Casio sent Lynn C. to the jail to talk to Miranda S. because Casio and Miranda S. were not on good terms at that time. After Lynn C. told Casio what Miranda S. had said, Casio decided to retrieve the BMW legally and bring it back to the home she shared with defendant, her boyfriend.

Defendant accompanied Casio to John K.’s house. Another couple drove because neither defendant nor Casio had a valid driver’s license.

After Casio saw the BMW drive by with its top down, the group followed the car to the victim’s trailer. Defendant and Casio got out of the group’s car, and defendant walked up to the BMW’s driver’s side. Seeing two passengers (a male & a female) in the car with the victim, Casio assumed the victim would give them the keys.

According to Casio, defendant asked the victim for the keys and said they were taking the car home for Miranda S.; Casio repeated the request, talking over the victim’s head to the male passenger. The victim did not hand over the keys.

After some minutes had passed, according to Casio, she heard defendant say: “You cut me.” She saw him pull the victim out of the car, punch him in the mouth, and grab a knife out of his hand. Defendant’s forearm was bleeding. According to Casio, one of their friends wrapped some cloth around defendant’s wound, but they failed to preserve it as evidence.

The group did not take the BMW to John K.’s home or Casio’s home, instead leaving it at the house of the other couple. According to Casio, this was because the victim knew where they lived and had a friend who repossessed cars.

The trial court instructed the jury pursuant to CALCRIM No. 1650 that to find carjacking proven, the jury must find “[t]he defendant used force or fear to take the vehicle or to prevent that person from resisting.” (CALCRIM No. 1650, element No. 4)

DISCUSSION

1.0 Sufficiency of the Evidence—Carjacking

Defendant contends that insufficient evidence supports his conviction because the People failed to prove he used force against the victim in order to take the victim’s car, as required by the carjacking statute. We disagree.

“ ‘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.” (§ 215, subd. (a).)

Because the Legislature modeled section 215 on the robbery statute (§ 211), courts rely on case law construing the robbery statute as guidance in carjacking cases. (People v. Hudson (2017) 11 Cal.App.5th 831, 835.) Thus, the force used in carjacking, as in robbery, must be motivated by the intent to commit the crime and applied for the purpose of accomplishing the taking. (People v. Anderson (2011) 51 Cal.4th 989, 994; cf. CALCRIM No. 1650.)

In reviewing a challenge to the sufficiency of the evidence, we examine the whole record in the light most favorable to the judgment to determine whether substantial evidence exists from which a rational trier of the facts could have found the essential elements of the crime proven beyond a reasonable doubt. In doing so, we presume the existence of every fact the trier of fact could reasonably deduce from the evidence, and do not reweigh the evidence or resolve evidentiary conflicts. (People v. Paz (2017) 10 Cal.App.5th 1023, 1039 (Paz).)

A defendant may not show that the evidence was insufficient merely by reciting the evidence in his favor or construing the evidence most favorably to himself. To meet his burden, he must show that the strongest evidence in support of the judgment, viewed most favorably to the judgment, is insufficient. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) Defendant does not do so.

The victim’s account, if credited, showed that defendant used force against him to render him unable to resist the intended taking of the BMW: After being punched, the victim could not get out of the car or move it forward, and codefendant Casio took advantage of the victim’s temporary helplessness to snatch the car keys out of the ignition. The verdict as to defendant shows that the jury credited the victim on this point and disbelieved Casio’s testimony that defendant punched the victim only in self-defense after being cut by his knife. We may not reweigh that credibility finding.

Nevertheless, defendant asserts, citing only to Casio’s testimony: “Here, force was applied during the taking of the BMW but was not done for the purpose of stealing the car. Rather, force was applied when [defendant] reacted in self-defense to [the victim] cutting him with a knife.” A defendant may not show the prosecution’s evidence was insufficient merely by citing his own evidence. (Foreman & Clark Corp. v. Fallon, supra, 3 Cal.3d at p. 881.)

Nor may a defendant show insufficiency of the evidence merely by asserting that the testimony of the witness the jury credited was internally inconsistent or contradicted by other testimony. The jury was properly instructed that it could choose to accept all, part, or none of any witness’s testimony, and that the testimony of one witness could prove any fact. (CALCRIM Nos. 226, 301) The jury did not have to accept all of the victim’s testimony in order to credit it as to defendant’s use of force, and if the jury did so, that was sufficient to establish guilt. (Paz, supra, 10 Cal.App.5th at pp. 1040-1041.)

Defendant cites a question asked by the jury during deliberations: “In the event of a carjacking — does the force used have to be specifically tied to the carjacking?” — and the trial court’s response: “Refer to element #4 in the instruction.” Defendant then asserts: “The answer given . . . did not provide much guidance, so it appears they decided the answer was no.” Defendant’s assertion is illogical. Element No. 4 of the instruction on carjacking, which we described above, states: “The defendant used force or fear to take the vehicle or to prevent that person [(the person who possessed the vehicle or was its passenger)] from resisting.” (CALCRIM No. 1650) By directing the jury to consult that part of the instruction, the court gave the jury exactly the guidance it needed, and nothing in the record shows the jury misunderstood anything.

Substantial evidence supported the jury’s finding that the People proved all the elements of carjacking as to defendant. So far as the jury’s acquittal of Casio was inconsistent with its conviction of defendant, that inconsistency does not invalidate his conviction. (People v. Abilez (2007) 41 Cal.4th 472, 512-513.)

2.0 Senate Bill No. 136

Defendant contends that in light of the October 2019 amendment to section 667.5, subdivision (b), enacted by Senate Bill No. 136 (2019-2020 Reg. Sess.) (Stats. 2019, ch. 590, eff. Jan. 1, 2020), which restricts the one-year enhancement thereunder to prior convictions for sexually violent offenses, the two enhancements imposed under the former statute (including the stayed enhancement) for prior convictions for offenses that were not sexually violent must be stricken. The Attorney General agrees that the amendment applies retroactively to this case under In re Estrada (1965) 63 Cal.2d 740 and that defendant is entitled to the relief he seeks. We agree with the parties and shall strike the two one-year enhancements.

3.0 Dueñas

Defendant contends he is entitled to a remand under People v. Dueñas (2019) 30 Cal.App.5th 1157 for a hearing on whether he can pay the fines and fees imposed by the trial court at sentencing. The Attorney General disagrees, and so do we. In our view, Dueñas was wrongly decided for the reasons stated in People v. Kingston (2019) 41 Cal.App.5th 272, 279; People v. Hicks (2019) 40 Cal.App.5th 320, 329, review granted November 26, 2019, S258946; People v. Aviles (2019) 39 Cal.App.5th 1055,1069, review denied December 11, 2019, S258563; and People v. Caceres (2019) 39 Cal.App.5th 917, 923-929.

DISPOSITION

The two one-year enhancements imposed under section 667.5, former subdivision (b), are stricken. In all other respects, the judgment is affirmed. The court clerk shall prepare an amended abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation.

/s/

Butz, J.

We concur:

/s/

Raye, P. J.

/s/

Hoch, J.