P. v. Carpenter
Filed 4/18/13 P. v. Carpenter CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE,
Plaintiff and Respondent,
v.
MATTHEW WARNER
CARPENTER,
Defendant and Appellant.
2d Crim. No. B240110
(Super. Ct. No. 2011011137 &
2010042486)
(Ventura County)
MODIFICATION OF OPINION AND
DENIAL OF REHEARING
[No Change in Judgment]
THE COURT:
It is ordered that the opinion filed
herein on March 21, 2013, be modified
as follows:
On
page 6, line 4 of the second full paragraph, after the word argument, add the
following as footnote 2.
2In his petition for rehearing, appellant
argues that he cited the following supporting authorities: People v. Woods (2008) 161 Cal.App.4th 1045, People v. Rubics (2006) 136 Cal.App.4th 452, and
1053. But none of these cases held that
restitution is permitted only for a loss that is a necessary element of the
criminal offense of which the defendant was convicted. In People
v. Woods, supra, 161 Cal.App.4th
at p. 1052, the appellate court agreed "that section 1202.4 limits the
scope of victim restitution to the operative crime that resulted in the
loss." It concluded that, since the
defendant had been convicted of being an accessory after the fact to murder,
the trial court had erroneously ordered him to pay restitution to the victim's
family. The appellate court reasoned
that the defendant's "criminal conduct did not cause the loss [the
victim's death] for which compensation was sought." (Ibid,
fn. omitted.) It noted that "a
charge of being an accessory after the fact is 'based on conduct taking place
Thus, Woods stands for the
proposition that " 'a defendant sentenced to state prison [may not be
required to] pay restitution for losses caused by conduct for which he was
at p. 1053.) Here, appellant's
criminal conduct of eluding a pursuing police officer caused the damage to the
police vehicles. Since appellant was
convicted of this offense, Woods supports
the order of restitution.
Appellant's
petition for rehearing is denied.
No change in judgment.
NOT FOR PUBLICATION
Filed
3/21/13 P. v.
Carpenter CA2/6 (unmodified version)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE
DISTRICT
DIVISION SIX
THE PEOPLE,
Plaintiff and
Respondent,
v.
MATTHEW WARNER CARPENTER,
Defendant and
Appellant.
2d Crim. No.
B240110
(Super. Ct. No. 2010042486)
(Super.Ct. No.
2011011137)
(Ventura
County)
Matthew W. Carpenter appeals from the
judgment entered after his conviction by a jury of two counts of unlawfully
driving or taking a vehicle (counts 1 & 6 - Veh. Code, § 10851, subd. (a));
driving in willful disregard for the safety of others while attempting to elude
a pursuing peace officer (count 2 - § 2800.2, subd. (a)); driving on the
wrong side of the road while eluding a pursuing peace officer (count 3 -
§ 2800.4); and reckless driving (count 8 - § 23103, subd. (a)). In a separate court trial, appellant was
found guilty of driving while his license was suspended for a conviction of
driving under the influence (count 9 - § 14601.2). He was sentenced to prison for four years,
four months.
Appellant contends that the trial
court (1) erroneously instructed the jury, (2) violated Penal Code section 654
by imposing a concurrent sentence on count 3, and (3) erroneously ordered him
to pay restitution to Ventura County
for damage that its vehicles had incurred during the pursuit of appellant. We modify the judgment to stay execution of
the sentence imposed on count 3. We
affirm the judgment as modified.
The information alleged that
appellant's offenses were committed on May 13 and June 19, 2010. The facts pertaining to the May 13 offenses
(counts 6 and 8) are not relevant to the issues on appeal. Accordingly, we summarize only the facts
pertaining to the June 19 offenses (counts 1,2, 3, and 9).
On May 13, 2010,
Shawnae Bowen parked her Ford F-150 pickup truck in front of her house. The next morning, the truck was missing. Bowen filed a stolen vehicle report with the
police.
In the afternoon on June 19, 2010,
Deputy Carlos Cendejas and Deputy Scott Sedgwick of the Ventura County
Sheriff's Office were on patrol together in separate marked vehicles. Deputy Cendejas saw Bowen's truck and entered
its license number into his Mobile Data Terminal. The information he received showed that the
truck was stolen.
The
driver of the truck was the sole occupant of the vehicle. Deputy Sedgwick identified appellant as the
driver. He testified that appellant was
"well-known at the police station through prior contacts, arrests, [and]
probation searches."
Cendejas
and Sedgwick pulled behind the truck and activated their vehicles' lights. The truck did not stop, so they activated
their sirens. A high-speed pursuit
ensued. During the pursuit, appellant
violated several provisions of the Vehicle Code. He made an illegal U-turn, exceeded the speed
limit by driving at 70 miles per hour, ran a red light, and drove on the wrong
side of the road.
The
truck entered a golf course parking lot, crashed through a wooden fence, and
drove onto the grassy area of the golf course.
The pursuit continued along a dirt road on the east side of the golf
course. A metal gate "was taken out
by the [truck]." One of the truck's
headlights "was actually attached to the gate."
Toward
the end of the pursuit, the deputies drove through thick shrubbery that damaged
their vehicles. They lost sight of the
truck for one or two minutes. When they
found the truck, it was abandoned "in the bushes."
Appellant
did not testify. The defense theory was
that the People had failed to prove that appellant was the driver of the truck.
Unlawfully Driving or Taking a Vehicle
For the two counts of unlawfully
driving or taking a vehicle (§ 10851, subd. (a)), the trial court
instructed the jury pursuant to CALCRIM No. 1820: "To prove that the
defendant is guilty of this crime, the People must prove that:
[¶] 1. The defendant took or drove someone else's vehicle without
the owner's consent; AND [¶] 2. When the defendant did so, he
intended to deprive the owner of possession or ownership of the vehicle for any
period of time." Appellant
contends: "CALCRIM No. 1820 is defective because [it does not require]
that the defendant have knowledge that the vehicle has been taken or driven
without the owner's consent. Knowledge
should be considered an element of the offense of unlawful taking or driving a
vehicle."
We
disagree. " 'The elements necessary
to establish a violation of section 10851 of the Vehicle Code are the
defendant's driving or taking of a vehicle belonging to another person, without
the owner's consent, and with specific intent to permanently or temporarily
deprive the owner of title or possession.
[Citations.] [Citation.] Accordingly, knowledge that the vehicle was
stolen is not an element of the offense.
Such knowledge is merely one of various alternative factors evidencing
an intent to deprive the owner of title and possession. [Citation.]" (People
v. Green (1995) 34 Cal.App.4th 165, 180; accord, People v. O'Dell (2007) 153 Cal.App.4th 1569, 1574; see also
County (1962) 57 Cal.2d 340, 344 ["The gist of the offense proscribed
by Vehicle Code, section 10851, is the taking or driving of a vehicle without
the owner's consent and with the specific intent to deprive the owner,
permanently or temporarily, of title to or possession of that vehicle"].)
Even
if guilty knowledge were an element of the offense, the instruction's omission
of this element would have been harmless beyond a reasonable doubt. A reasonable trier of fact would have
concluded that appellant's flight from the pursuing deputies and abandonment of
the truck had been motivated by knowledge that he was driving the vehicle
without the owner's consent.
For the offense of driving in
willful disregard for the safety of others while attempting to elude a pursuing
peace officer (§ 2800.2, subd. (a)), the trial court instructed the jury
pursuant to CALCRIM No. 2181. The
instruction provided that driving in willful disregard for the safety of others
"includes, but is not limited to, causing damage to property while driving
or committing three or more violations that are each assigned a traffic
violation point.
[¶] Speeding, failure to stop at a Red Light intersection,
driving on the wrong side of the road, are each assigned a traffic violation point." In his reply brief, appellant acknowledges
that the "the jury was correctly instructed that [these three traffic
violations] could constitute a willful disregard." But he argues that the instruction was
deficient because it "did not define the requisite elements of the three
traffic violations. Thus, the
instruction relieved the prosecution of its burden of proving all of [the]
elements of the charged offense beyond a reasonable doubt in violation of due
process."
The
instruction was not deficient because the nature of the traffic violations was
self-evident and required no further elaboration. Even if the trial court had erred, the error
would have been harmless beyond a reasonable doubt. The instruction provided that willful
disregard for the safety of others is established by the commission of three
traffic violations or "causing
damage to property while driving."
It is undisputed that, during the pursuit, appellant damaged a wooden
fence and metal gate by crashing into them.
654
The trial court concluded that,
pursuant to Penal Code section 654, punishment for driving on the wrong side of
the road while eluding a pursuing peace officer (count 3 - § 2800.4) was
barred because the offense was based on the same conduct as driving in willful
disregard for the safety of others while attempting to elude a pursuing peace
officer (count 2 - § 2800.2, subd. (a)).
The trial court imposed a three-year prison term on count 3 to run
concurrently with a three-year prison term imposed on count 2. Appellant contends, and the People concede,
that the imposition of a concurrent sentence was erroneous. We accept the
concession. " 'It has long been
established that the imposition of concurrent sentences is precluded by section
654 [citations] because [under such a sentence] the defendant is deemed to be subjected
to the term of both sentences although they are served
simultaneously.' [Citations.]" (People
v. Duff (2010) 50 Cal.4th 787,
796.) "The sentencing court should
stay execution of sentence pending completion of service of sentence upon the
greater offense, with the stay to become permanent upon completion of that
sentence. [Citations.]" (
During the pursuit, Deputy Cendejas's and
Deputy Sedgwick's patrol vehicles were damaged.
The trial court ordered appellant to pay to Ventura County the cost of
repairing the vehicles - $3,970.65.
Appellant maintains that Ventura County is not entitled to restitution
because it was not a direct victim of appellant's crimes of attempting to elude
a pursuing peace officer. Penal Code
section 1204, subdivision (k)(2) provides that a governmental entity is
entitled to restitution only if it is a "direct
victim." "[A] statute
'permitting restitution to entities that are "direct" victims of
crime [limits] restitution to entities against which the [defendant's]
crimes had been committed" - that is, entities that are the
"immediate objects of the [defendant's] offenses." [Citation.]'
[Citations.]" (
856.)
"Whether
[Ventura County] can be a 'direct victim' under section 1202.4 is a legal issue
of statutory construction, which we review under an independent or de novo
standard. [Citation.] [¶] In
undertaking this analysis, we are mindful that the California Constitution
gives trial courts broad power to impose restitution on offenders. (Cal. Const., art. I, § 28, subd.
(b)[(13)].) Article I, section 28,
subdivision (b)[(13)(A)] declares unequivocally that 'all persons who
suffer losses' due to crime have the right to restitution. (Italics added.) Accordingly, the courts have held that
restitution statutes should be interpreted broadly and liberally. [Citations.]" (People
v. Saint-Amans (2005) 131 Cal.App.4th 1076, 1084.)
Interpreting
Penal Code section 1204, subdivision (k)(2) "broadly and liberally,"
we conclude that Ventura County was a direct victim of appellant's crimes of
attempting to elude a pursuing peace officer.
The crimes were committed against county employees - the pursuing
deputies - while they were acting within the scope of their employment and
driving county-owned vehicles. The
object of the crime was to escape arrest by the deputies. In view of the county's involvement as both
employer of the deputies and owner of the vehicles used by them to pursue
appellant, it follows that the county was a direct victim.
We
reject appellant's argument that the restitution award was unauthorized
"because the damage to the sheriff['s] vehicles was not a necessary
element of [his] conviction [of eluding a pursuing peace officer]." (Capitalization omitted.) Appellant has failed to cite authority
supporting this argument. If appellant
were correct, then a victim who was injured during a robbery could not obtain
restitution for his injury if the defendant were convicted only of robbery,
since injury is not a necessary element of that offense. Such a result would conflict with the
constitutional provision "that all persons who suffer losses as a result of
criminal activity shall have the right to seek and secure restitution from the
persons convicted of the crimes causing the losses they suffer." (Cal. Const., art.
I, § 28, subd. (b)(13)(A).) There is no
question here that the damage to the county-owned vehicles was caused by the
deputies' pursuit of appellant.
Pursuant to Penal Code section 654,
the judgment is modified to stay execution of the three-year sentence imposed
on count 3, driving on the wrong side of the road while eluding a pursuing
peace officer (§ 2800.4). The stay
shall remain in effect pending completion of service of the three-year sentence
imposed on count 2, driving in willful disregard for the safety of others while
attempting to elude a pursuing peace officer (§ 2800.2, subd. (a).) The stay shall become permanent upon
completion of that sentence. As so
modified, the judgment is affirmed. The
trial court is directed to prepare an amended abstract of judgment and to
transmit a certified copy to the Department of Corrections and rehabilitation.
NOT
TO BE PUBLISHED.
YEGAN,
J.
We concur:
GILBERT, P.J.
PERREN, J.
Jeffrey
G. Bennett, Judge
Superior
Court County of Ventura
______________________________
Wayne C. Tobin, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E.
Winters, Senior Assistant Attorney General, Yun K. Lee, Thomas C. Hsieh, Deputy
Attorneys General, for Plaintiff and Respondent.
name="_ftn1" title="">[1] All statutory references are to the Vehicle Code unless otherwise
stated.
