P. v. Harvey
Filed 1/28/09 P. v. Harvey 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(Sacramento)
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THE PEOPLE, Plaintiff and Respondent, v. CHARLES HARVEY, Defendant and Appellant. | C056028 (Super. Ct. No. 06F03095) |
In the spring of 2006, Defendant Charles Harvey and his codefendant Brian Jones wreaked havoc on a stretch of Highway 12 near Rio Vista, California. Engaging in a high-speed chase with a California Highway Patrol officer, running cars and a big rig truck off the road, and shooting a woman, the two ultimately forced two victims out of their pickup truck at gunpoint and continued to flee in the stolen vehicle. Later, when defendant and Jones were arrested, the police found personal items from the pickup, which belonged to the victims, scattered about the home where defendant and Jones were found.
Convicted on one count of attempted carjacking, two counts of carjacking, one count of being a felon in possession of a firearm, and two counts of receiving stolen property, defendant appeals his sentence.
Factual Background
At 7:00 p.m. on April 7, 2006, California Highway Patrol Officer Chris Parker attempted to stop a Ford Explorer he saw speeding on Highway 12 near Rio Vista. The Explorer stopped, but as Officer Parker walked toward the vehicle he heard a high RPM of the engine of the Explorer and it took off away from [him]. Officer Parker returned to his car and a high-speed chase ensued, but due to unsafe conditions, Officer Parker soon stopped his pursuit and lost sight of the vehicle.
Nyidra Walker was traveling on Highway 12 when the same Explorer hit her vehicle, causing it to spin into oncoming traffic. She saw a man driving the Explorer before he fled the scene. Charles Seals, also driving along Highway 12, saw the Explorer hit Walkers car, after which the Explorer nearly ran into Seals big rig, then run yet another car off the road. Seals saw that the Explorer was sparking and the drivers side tire was flat, but the driver continued to flee.
Richard Posada and Martha Rodriguez were traveling the same highway when the Explorer passed them, spun around, and stopped in the middle of the road. They noticed damage to the front end of the Explorer and a blown tire on the drivers side. Two men, later identified as defendant and Jones, got out of the Explorer and, armed with guns, approached Posada and Rodriguez. The two men attempted to take Posadas car by force, but Posada started to drive away.
As Posada drove off, a shot was fired through the back window of Posadas car, hitting Rodriguez in the shoulder. Posada looked into his rearview mirror and saw defendant and Jones grab someone out of a white pickup truck and jump in. That same truck soon passed Posada.
Rocky Richardson and Joseph Hogue, also traveling on Highway 12, saw defendant and Jones approach Posada and Rodriguez. Seeing the wrecked Explorer, Hogue believed defendant and Jones had been in an accident and were attempting to stop the driver of another car, so he slowed down.
As Richardson and Hogue slowed down, defendant and Jones, still armed, approached them. Carrying an assault rifle and aiming a pistol at Richardson, Jones ordered Richardson out of the truck while defendant aimed his rifle at Hogue. Richardson and Hogue complied and got out of the truck. Hogue then saw the truck burn out and drive away.
Later that night, Stockton Police Officer Ben Padilla was dispatched to a residence in San Joaquin County; he found Richardsons truck in the driveway. Officer Padilla requested additional officers to secure the house. After the other officers were in place, Officer Padilla saw defendant and Jones come out of the house. Officer Padilla started to notify the additional officers, but when they started to approach, defendant ran back into the house and Jones attempted to run away.
Jones was apprehended outside; defendant remained inside the house for at least 20 minutes before he finally surrendered. Sacramento County sheriffs detectives then brought victims Richardson and Hogue to the house for a field showup. Both Richardson and Hogue positively identified Jones as one of the carjackers. Richardson stated that defendant looked familiar; Hogue said defendant looked like the passenger of the truck. A subsequent search of the residence where the truck was found revealed numerous personal items belonging to Richardson and Hogue, items that were in Richardsons truck when it was stolen.
Defendant was charged with two counts of attempted murder (Pen. Code, 664/187, subd. (a);[1]counts one and two), one count of attempted carjacking ( 664/215, subd. (a); count three), two counts of carjacking ( 215, subd. (a); counts four and five), and two counts of receiving stolen property ( 496, subd. (a); counts eleven and twelve). Defendant also was charged with two counts of being a felon in possession of a firearm ( 12021, subd. (a)(1); counts nine and ten). Counts one through five of the information included enhancement allegations for personal use of a firearm. ( 12022.53, subd. (b).)
Trial began in February 2007. On April 10, 2007, a jury found defendant guilty of attempted carjacking as alleged in count three, carjacking as alleged in counts four and five, being a felon in possession of a firearm as alleged in count ten, and receiving stolen property as alleged in counts eleven and twelve. The jury found the personal use of firearm allegations not true with regard to counts four and five, but deadlocked on the allegation as to count three. The court declared a mistrial on counts one, two, and nine because the jury could not reach a verdict on those counts.
Defendant was later sentenced to an aggregate term of 13 years six months in state prison. The court selected count four as the principal count and imposed the upper term of nine years. The court imposed consecutive sentences of one-third the midterm for the remaining counts as follows: 10 months for count three; one year eight months for count five; and eight months each for counts ten, eleven, and twelve. The court ordered defendant to pay various fines and fees, and ultimately awarded him 466 days of presentence credit.[2] Defendant appeals.
Discussion[3]
Defendant contends the trial court violated the prohibition against double jeopardy by convicting him of receiving stolen property belonging to Richardson in count eleven and receiving stolen property belonging to Hogue in count twelve because the property of both victims was inside the truck when it was carjacked by defendant. The People concede the error.
While we will correct the error, we do so because California courts have long held that the receipt, on one occasion, of goods stolen from several owners constitutes a single offense of receiving stolen property.[4] (People v. Smith (1945) 26 Cal.2d 854, 859; People v. Lyons (1958) 50 Cal.2d 245, 275; People v. Mitchell (2008) 164 Cal.App.4th 442, 461-462.) We will affirm the conviction on count eleven and reverse the conviction on count twelve.
Defendant further contends that the trial court erred in failing to stay the sentences on counts eleven and twelve because the receiving stolen property offenses and the carjacking were parts of one indivisible transaction. We disagree.
Section 654 prohibits punishment for two offenses arising from the same act or an indivisible transaction. (Neal, supra, 55 Cal.2d at pp. 18-19.) The statute applies not only when there is one act, but also where a course of conduct violated more than one statute and the problem was whether it comprised a divisible transaction which could be punished under more than one statute within the meaning of section 654. [Citation.] (Neal, supra, 55 Cal.2d at p. 19.)
Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one. (Neal, supra, 55 Cal.2d at p. 19, italics added.) (People v. Latimer (1993) 5 Cal.4th 1203, 1208.)
The question of whether the acts of which defendant has been convicted constitute an indivisible course of conduct is primarily a factual determination, made by the trial court on the basis of its findings concerning the defendants intent and objective in committing the acts. This determination will not be reversed on appeal unless unsupported by the evidence presented at trial. [Citation.] (People v. Nichols (1994) 29 Cal.App.4th 1651, 1657.)
We find there was substantial evidence to support the trial courts finding that the commission of unlawful possession of the personal stolen property of Mr. Hogue and Mr. Richardson on a separate occasion is distinct from the carjacking and the forcible taking of the motor vehicle from those individuals for which he was convicted in other counts . . . .
The evidence admitted at trial shows that by the time Jones and defendant carjacked Hogue and Richardson, Jones and defendant had engaged Officer Parker in a high-speed chase, collided with at least two vehicles, nearly collided with a big rig truck, blown out a tire on the Explorer they were driving, and attempted to carjack Posada and Rodriguez, shooting Rodriguez in the process.
It was reasonable to infer that defendant had but one objective in carjacking Hogue and Richardson--to take their car and continue fleeing. Only later, when he discovered Hogue and Richardsons personal belongings inside the stolen vehicle and took them into the house could defendant have formed the intent to take possession of the stolen property. The act of receiving stolen property was divisible from the carjacking. Accordingly, there was no error.
Disposition
The conviction on count twelve is reversed. The judgment is affirmed in all other respects. The trial court is directed to prepare an amended abstract of judgment and to provide a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
DAVIS , J.
We concur:
SIMS , Acting P. J.
HULL, J.
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[1] Hereafter, undesignated section references are to the Penal Code.
[2] The court initially awarded only 465 days of credit. Defendant subsequently moved to have his credits recalculated. The trial court granted the motion and recalculated the credits, giving defendant an additional day; an amended abstract of judgment is part of the record on appeal.
[3] Defendants opening brief included a Batson/Wheeler claim. (Batson v. Kentucky (1986) 476 U.S. 79 [90 L.Ed.2d 69]; People v. Wheeler (1978) 22 Cal.3d 258.) On September 22, 2008, defendant, after consultation with counsel, withdrew the claim.
[4] This is not the rule in assault and homicide cases. Where a single act injures more than one victim, there are as many offenses as there are victims. (See People v. Majors (1884) 65 Cal. 138, 146-147 [defendant shot and killed two persons]; Neal v. State of California (1960) 55 Cal.2d 11, 20 (Neal) [attempted killing of two persons by arson].)
