P. v. Israel

Filed 10/13/06 P. v. Israel CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Defendant Max Israel was convicted by jury of one count of carjacking (Pen. Code,[1] § 215), one count of vehicle theft with a prior conviction (Veh. Code, § 10851, subd. (a); § 666.5) and one count of evading an officer with reckless driving (Veh. Code, § 2800.2, subd. (a)). The jury found true a special allegation that defendant was armed with a firearm when he committed the carjacking (§ 12022, subd. (a)(1)). In a bifurcated proceeding, the court found true allegations that defendant had three strike priors for the purposes of the Three Strikes Law (§§ 667, subds. (b )--(i); 1170.12), two “Proposition 8” priors (§ 667, subd. (a)), four prison priors (§ 667.5, subd. (b)), and one prior conviction for vehicle theft (Veh. Code, § 10851).

The court denied defendant’s Romero[2] motion and sentenced defendant to 25 years to life on the carjacking, 25 years to life consecutive on each of the other two counts, plus five years each for the two “Proposition 8” priors. The court struck the arming allegation and three of the prison priors and stayed the one-year sentence on the fourth prison prior, for a total sentence of 10 years consecutive to 75 years to life.

On appeal, defendant contends there was insufficient evidence to support his conviction for vehicle theft. He alleges the trial court violated his right to due process when it admitted certain checks into evidence because they constituted evidence of uncharged prior offenses and argues the court should have excluded the checks under Evidence Code section 352 because they were more prejudicial than probative. Finally, defendant asserts that the court had the option of imposing a concurrent sentence on the evading count and that the court failed to exercise its discretion when it imposed a consecutive sentence on that count. We find no error and affirm the judgment.

Facts

I. Vehicle Theft and Evading an Officer/Reckless Driving Counts

On January 8, 2004, defendant rented a white 1999 Chevy pickup truck from Discount Rent-a-Car in Santa Clara. The rate was $30 per day with a minimum one-week rental. Defendant gave company owner Paul Arasnia his credit card and showed Arasnia his driver’s license. Arasnia took an impression of the credit card and wrote up a charge for a $300 deposit. The amount of the deposit was based on the rental car company’s insurance deductible and was intended to cover any damage to the vehicle.

Arasnia did not charge defendant’s credit card at the time of the rental. He planned to hold the charge slip until the truck was returned. Upon returning the vehicle, defendant had the option of paying for the rental with a credit card, by check, or with cash.

At the time of the rental, Arasnia did not do anything to confirm that the credit card was valid. Arasnia did not indicate a return date on the rental agreement because the rental term might be extended. A customer could extend the rental period by calling the company.

At about 4:00 a.m. on January 15, 2004, Ricky Ziesmer was driving around Los Altos, looking for a woman named “Janet.” Ziesmer had met Janet once before and hoped to “hook up” with her romantically. He was having trouble finding Janet’s house and called one of Janet’s friends. A man answered the phone, said he thought he could help Ziesmer and agreed to meet Ziesmer at a gas station in Los Altos.

A man in a white pickup truck met Ziesmer at the gas station, told Ziesmer he thought he knew where Janet lived, and agreed to show Ziesmer the way. Ziesmer had never met the man before. Ziesmer followed the white pickup for about an hour.

As they drove around, Ziesmer noticed a police car behind him. The driver of the pickup truck ran a stop sign. The police officer turned on his lights and passed Ziesmer in pursuit of the pickup. Ziesmer decided to go home because he was under the influence of methamphetamine and did not want to call attention to himself.

Los Altos Police Officer Bunch noticed the white pickup that defendant had rented from Discount Rent-A-Car run a stop sign and decided to stop the pickup. The truck did not stop after the officer activated his lights, so the officer used short siren bursts to get the driver’s attention. The pickup truck did not stop and led the officer on a high speed chase to the northern city limit of Los Altos. Officers from two other jurisdictions took up the chase and followed defendant up Foothill Expressway, onto Page Mill Road and Highway 280. The pickup was going 70 miles per hour in a 50-miles per hour zone; it later reached speeds of 80, 85, and 95 miles per hour. When the officers terminated the pursuit, the pickup was northbound on Highway 280, north of Woodside Road.

Later that morning, Ziesmer got a phone call from the driver of the pickup. He said he had “dumped” the pickup because it was stolen and asked Ziesmer to give him a ride home from San Francisco. Ziesmer, who was on probation, figured he did not need any trouble and told the pickup driver he could not help him.

The one-week rental period on the pickup truck ended on January 15, 2004. Defendant did not call to extend the rental. The truck was impounded in San Francisco on January 16, 2004. A day or two later, Arasnia received a call from the Los Altos Police advising him that the rental truck had been involved in an incident in Los Altos. Arasnia tried to reach defendant by phone; there was no answer. His certified letter to defendant was returned unopened. When Arasnia tried to charge the rental to defendant’s credit card, he was told the card was not valid. Defendant never paid Arasnia for the truck rental.

Prior to trial, Ziesmer told a police officer the driver of the pickup truck was named “Max.” He told an investigator for the District Attorney’s office, who showed him a photograph of defendant, that defendant was the one driving the pickup and said he knew defendant by his nickname, “Israel.” At trial, Ziesmer testified that defendant was heavier and much taller than the man who was driving the truck.

In February 2004, a firefighter found a backpack on the side of the road in a residential area north of Woodside Road. The contents of the backpack included defendant’s driver’s license, defendant’s credit card, and several blank checks from a Mountain View motel, three checks from the motel that were made out to defendant, and one check from the motel made out to “Earl P. Pike.”

II. Carjacking Incident

Thanh Ngo owns a body shop. He purchased a 2001 Lexus SUV at auction, repaired it, and offered it for sale. On January 20, 2004, defendant responded to Ngo’s newspaper advertisement regarding the Lexus. Ngo relied on his sister, Kim Ngo, who spoke better English than he did, to negotiate with defendant and complete the paperwork for the sale of the car.

Defendant test-drove the car twice. After defendant filled out some of the forms, he asked to test drive the car again. Defendant made a phone call and then asked if he could borrow the car to pick up his girlfriend or his wife to bring the deposit money for the car. The Ngos did not agree to lend him the car. When Thanh Ngo suggested defendant walk, defendant said it was too far, jumped into the car and started to drive off. Thanh Ngo jumped into the back seat of the car. Defendant drove to a house on Seventh Street in San Jose and suggested Ngo get out of the car to get the money. Ngo had a feeling defendant was going to steal the car and refused to get out of the car. Defendant drove Ngo to two schools. At the second school, defendant told Ngo he wanted to kill him. Defendant moved his hand toward his back and Ngo saw a gun in defendant’s waistband. Defendant swung his arm at Ngo. Ngo jumped out of the car, ran home, and asked his sister to call the police. Defendant did not return the Lexus.

Five days later, on January 25, 2004, sheriff deputies spotted the Lexus in front of a house in the Santa Cruz Mountains. They found defendant inside the house, hiding under a bed. Two other people were in the house. The officers found a driver’s license with defendant’s photograph and the name “Earl Pike” on it. They also found the key to the Lexus, a large amount of marijuana, a handgun, a scale, baggies, methamphetamine pipes, and $4,500 in cash.

Discussion

I. Substantial Evidence Supports the Jury’s Finding that Defendant Took the Truck Without the Owner’s Consent

Defendant contends his conviction for vehicle theft (count 2) must be reversed because there was insufficient evidence that he drove the pickup without Arasnia’s consent. To prove the crime of unlawful taking of a vehicle in violation of Vehicle Code section 10851, the prosecution must prove the following elements: (1) the defendant took or drove a vehicle belonging to another person; (2) the owner of the vehicle did not consent to the taking or driving of the vehicle; and (3) the defendant had the specific intent to deprive the owner either permanently of temporarily of title to or possession of the vehicle. (Veh. Code, § 10851; CALJIC No. 14.36; Judicial Council of Cal. Crim. Jury Instns. (2006) CALCRIM No. 1820.) Nonconsent of the owner is a necessary element of the offense. (People v. Lam (2004) 122 Cal.App.4th 1297, 1301.)

On an appeal challenging the sufficiency of the evidence, “we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence--that is, evidence that is reasonable, credible, and of solid value--from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] In cases in which the People rely primarily on circumstantial evidence, the standard of review is the same.” (People v. Thomas (1992) 2 Cal.4th 489, 514.)

Defendant contends that at all times he drove the pickup truck with Arasnia’s consent. He rented the truck at approximately 1:30 p.m. on January 8, 2004, for one week. He contends that when he last drove the pickup in the early morning hours of January 15, 2004, he was still within the one-week rental period. Arasnia had testified that under the terms of the contract, defendant could return the truck any time before the rental company closed at 7:30 p.m. on January 15, 2004.

Defendant’s reliance on People v. Carr (1964) 229 Cal.App.2d 74 (Carr) is misplaced. The defendant in Carr rented a car from a car rental company for one day. She extended the rental contract for “two additional days,” to February 1, 1963. (Id. at pp. 75, 76.) The defendant failed to return the car to the car rental company and on February 15, 1963, the company reported the car as stolen. The defendant was involved in an accident in the rental car on February 28, 1963. (Id. at p. 76) The court concluded there was sufficient evidence to support the jury’s finding that the defendant drove the car without the owner’s consent. The court explained that “the acquiring of possession of the vehicle by defendant and the driving of it for three days was with the agency’s consent. However, when defendant failed to return the vehicle to its owner within five days after the expiration of her lease, under the provisions of Vehicle Code section 10855^[[3]] defendant was presumed to have embezzled the vehicle, and each time she drove the vehicle after the lease had expired, the driving was without the consent of its owner and in violation of section 10851.” (Id. at p. 78.)

Seizing on this language defendant argues “it is the driving of a vehicle after a lease or rental agreement has expired that satisfies the element of non-consent. Since . . . the evidence here only shows abandonment during the period of consent (and no further driving after the consent expired), the evidence was insufficient to sustain the charge.” We disagree. A person violates Vehicle Code section 10851 when he or she “drives or takes a vehicle not his or her own.” (Veh. Code, § 10851, italics added.) Although defendant apparently did not drive the pickup truck after the rental contract expired, in our view, as explained more fully below, he continued taking the truck within the meaning of section 10851 after the contract expired.

In People v. Hutchings (1966) 242 Cal.App.2d 294 (Hutchings) the court addressed the issue of limited consent. The defendant in Hutchings went to a used car dealer and expressed interest in buying one of the cars. He asked and was given permission to take the car for 30 to 40 minutes to show it to his wife. Five hours later, he was stopped by police for driving under the influence at a location that was 20 miles away from the car dealership and nowhere near his home. (Id. at p. 294.) The defendant argued he was driving the car with the consent of the owner. The court concluded that the defendant had exceeded the limited consent the owner had given, both as to purpose and time, since the defendant was arrested over four hours after the consent expired, far from his home, and his wife was not in the car. (Id. at p. 295.)

In this case, Arasnia consented to a one-week rental, through the close of business on January 15, 2004, premised on the payment of the rental price. Defendant took the truck and abandoned it in San Francisco on January 15, 2004, the last day of the rental period. He never returned the truck to the rental company. He did not call to extend the rental period. He did not retrieve the pickup truck from the tow yard or tell the owner where it was. He never paid for the rental. The credit card he tendered to cover the deposit was not valid. He did not pay for the rental by any other means (cash, check or another credit card). As in Carr, when defendant failed to return the pickup to its owner within five days after the expiration of the rental agreement, defendant was presumed to have embezzled the vehicle. (Veh. Code, § 10855; Carr, supra, 229 Cal.App.2d at p. 78.) Defendant exceeded the scope of the rental company’s consent when he extended the rental period without making arrangements with the rental company, abandoned the truck in San Francisco, and failed to pay for the rental. For these reasons, we conclude the jury’s finding that defendant took the truck without the rental company’s consent is supported by substantial evidence.

II. Admission of Evidence of Uncharged Bad Acts

A. Factual Background

During trial, the prosecution offered the contents of the backpack that the firefighter found on the side of the road as evidence that defendant was the driver of the pickup on the theory that the backpack was thrown from the pickup during the high speed chase with law enforcement officers. Outside the presence of the jury, defendant objected to the admission of some of the documents in the backpack. Defendant conceded the admissibility of his driver’s license, his credit card, and one check made out to him, all of which had been produced in discovery. However, he objected to the admission of two additional checks made out to him and the check made out to “Earl P. Pike” (hereafter “disputed checks”). Defendant objected that the disputed checks had not been produced in discovery. Defendant argued that the driver’s license, credit card, and one check were enough to show identity and tie him to the backpack and the truck. He argued that the additional checks made out to him were extremely inflammatory, prejudicial and cumulative and that they were not necessary to establish the point under Evidence Code section 352. He argued that the check made out to Pike was irrelevant to any of the charges, extremely inflammatory and prejudicial. The prosecutor argued the check made out to Pike was relevant because defendant had a driver’s license in Pike’s name when he was arrested and that the other two checks were further indicia of his identity. The court overruled defendant’s objections under Evidence Code section 352. During the presentation of this evidence, defendant’s objection to disputed checks on the grounds of hearsay was overruled.

After the evidence was admitted, the court gave the jury the following limiting instruction: “The Court has allowed this last evidence as to these checks, I.D. cards, credit card, for what’s known as a limited purpose. They’re not in evidence for the truth of the matter asserted, not necessarily that the checks are valid, that they’re forged or any other purpose. Other than the limited purpose only to show possession or control over the backpack. And that’s the only reason this evidence is allowed in. You will make that determination based on a careful review after all the evidence and after following the Court’s other instructions.” Later, the court instructed the jury with CALJIC No. 2.09 that “[c]ertain evidence was admitted for a limited purpose. At the time this evidence was admitted you were instructed that it could not be considered by you for any purpose other than the limited purpose for which it was admitted. Do not consider this evidence for any purpose except the limited purpose for which it was admitted.”

B. Contentions

Defendant contends the disputed checks are evidence of uncharged offenses and that such evidence is inadmissible under Evidence Code section 1101 and notoriously prejudicial. He argues the disputed checks were irrelevant, since there was no factual nexus between his possession of the checks and any of the charged crimes. He asserts that even if the checks were relevant, the court abused its discretion under Evidence Code section 352 when it admitted the disputed checks, since their prejudicial effect outweighed their probative value. Defendant argues that the court’s admonition was ineffective in preventing the jurors from using this evidence for an improper purpose and that the admission of this evidence violated his 14th Amendment right to due process.

The Attorney General contends the prosecutor did not seek to have the disputed checks admitted under Evidence Code section 1101 and the court did not admit them under that statute. He argues defendant forfeited both his claim under Evidence Code section 1101 and his constitutional claim, because he did not object on those grounds in the trial court. He argues there was no evidence the disputed checks were forged and contends this evidence was very brief and was neither prejudicial nor inflammatory.

C. Forfeiture

The prosecution did not seek to admit the disputed checks under Evidence Code section 1101, subdivision (b) and the trial court did not admit the checks under that section. Moreover, defendant did not object that the disputed checks were inadmissible under Evidence Code section 1101 or that their admission violated his due process rights. He argued only that they were hearsay, irrelevant, and inadmissible under Evidence Code section 352. By failing to object on the basis of Evidence Code section 1101 in the trial court, defendant has forfeited that contention on appeal. (People v. Allen (1986) 42 Cal.3d 1222, 1271.) In any event, as set forth below, such an objection would have been meritless.

D. Analysis on the Merits

Evidence Code section 1101, subdivision (a) provides that “evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.” Evidence Code section 1101, subdivision (b) permits the introduction of otherwise inadmissible evidence that the accused “committed a crime, civil wrong, or other act” if it is “relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . .) other than his or her disposition to commit such an act.” (Evid. Code § 1101, subd. (b), italics added; People v. Pijal (1973) 33 Cal.App.3d 682, 691.)

Defendant argues “there was no nexus of any kind between the possession of forged checks and false identification and any of the charged crimes.” In this case, the prosecution introduced the disputed checks, along with the driver’s license, credit card and undisputed check as evidence that defendant was driving the pickup truck at the time of the high-speed chase. Moreover, there was no evidence the disputed checks were forged or otherwise involved in criminal activity. There was no evidence regarding the conduct of defendant as it related to the disputed checks, other than the inference that he discarded the backpack containing the checks during the high speed chase. The officer who testified about the checks was unable to contact the hotel that issued the checks; he did not go to the hotel or speak with anyone about the checks.[4] He could not read the name of the person who signed the checks. Defendant’s objections to questions regarding who signed the checks and whether there was anything about the checks that caught the officer’s attention were sustained. The trial court expressly instructed the jury that the checks were “not in evidence for the truth of the matter asserted, not necessarily that the checks are valid, that they’re forged or any other purpose.” Like the undisputed check, the disputed checks link defendant to the backpack and the high speed chase. They were therefore relevant to the evading count.

Pursuant to Evidence Code section 352, however, the court has the discretion to exclude otherwise relevant evidence if its prejudicial impact outweighs its probative value, or to admit such evidence if its probative value outweighs the probability that its admission will create substantial danger of undue prejudice, of confusing the issue, or of misleading the jury. (People v. Smithey (1999) 20 Cal.4th 936, 973.) “ ‘The “prejudice” referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues.’ “ (People v. Karis (1988) 46 Cal.3d 612, 638.)

On appeal, we review the trial court’s ruling pursuant to Evidence Code section 352 for abuse of discretion. (People v. Lewis (2001) 25 Cal.4th 610, 637.) The trial court’s ruling will not be disturbed on appeal “ ‘except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.’ “ (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.)

We are not persuaded that the court arbitrarily concluded that the probative value of the disputed checks outweighed their potential for prejudice. Outside the presence of the jury, the prosecutor advised the court that a law enforcement officer from Santa Cruz County had concluded, based on the contents of the backpack, that defendant was a suspect in an identity theft investigation in Capitola. The parties and the court agreed that this information would not be presented to the jury. As noted above, although the disputed checks were placed in evidence, there was very little other evidence regarding the checks. The court sustained defendant’s objections to questions that asked the officer to speculate and offer opinions regarding the checks. The court also took affirmative steps to minimize the potential for illegitimate prejudice to the defendant by giving a strongly worded admonition to the jury immediately after receipt of the evidence. The court also instructed the jury regarding how it should view evidence that had been admitted for a limited purpose at the conclusion of the case. On this record, we conclude the trial court’s ruling was not unreasonable, arbitrary or absurd and thus did not constitute an abuse of discretion.

Moreover, we are not persuaded that the court’s limiting instruction was inadequate. Defendant did not object to the limiting instruction in the trial court. On appeal, he complains that the instruction “failed to tell the jurors that the evidence could not be used to prove that the defendant was a person of bad character or that he had a disposition to commit crimes, as is customarily done with limiting instructions concerning evidence of other crimes. (See, e.g., CALJIC No. 2.50.)” The disputed checks were not admitted under Evidence Code section 1101, subdivision (b) as evidence of other crimes. The instruction specifically told the jury that the disputed checks were admitted for a limited purpose, “only to show possession or control over the backpack. And that’s the only reason this evidence [was] allowed in.” The instruction was reinforced when the court instructed the jury pursuant to CALJIC No. 2.09. For these reasons, we conclude the instructions were adequate.

Furthermore, since the evidence was relevant to the issue of the identity of the driver of the pickup truck during the high speed chase, and was not admitted to show defendant’s disposition to commit the charged crimes, there was no violation of his federal constitutional right to a fair trial. (See e.g. Estelle v. McGuire (1991) 502 U.S. 62, 69-70 [admission of relevant other crimes evidence pursuant to state law does not violate federal due process].)

III. Imposition of Consecutive Sentence on Count Three (Evading/Reckless Driving)

The trial court sentenced defendant to three terms of 25 years to life. The court designated the sentence on the carjacking offense (count 1) the principle term and ordered that the sentence on the vehicle theft (count 2) be served consecutive to the sentence on count 1 and that the sentence on the evading/reckless driving (count 3) also be served consecutive.

Defendant contends the court erred when it ordered a consecutive sentence on count 3 because the court erroneously assumed consecutive sentencing was mandatory on count 3 under the three strikes law (§ 667, subd. (c)(6)). He argues that consecutive sentencing was not mandatory on count 3 and that the court did not understand and failed to exercise its discretion in determining whether to impose a consecutive or a concurrent sentence on count 3. The Attorney General contends that defendant has forfeited this claim by failing to object below and that the claim is without merit since a consecutive sentence was required in this case.

A. Forfeiture

By failing to object on these grounds in the trial court, defendant has forfeited any “claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices.” (People v. Scott (1994) 9 Cal.4th 331, 353; id. at pp. 352-354.) In any event, as we explain below, such an objection would have been meritless.

B. Analysis

“When a defendant is sentenced under the three strikes law (. . . § 667, subds. (b)-(i)) because he [or she] has previously been convicted of one or more serious and/or violent felony offenses (§ 667, subds. (b), (c)), the three strikes provisions mandate that ‘[i]f 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 [this section].’ (§ 667, subd. (c)(6); hereafter sometimes subdivision (c)(6).) By implication, consecutive sentences are not mandated under subdivision (c)(6) (or subd. (c)(7)) . . . if all of the current felony convictions are either ‘committed on the same occasion’ or ‘aris[e] from the same set of operative facts.’ “ (People v. Lawrence (2000) 24 Cal.4th 219, 222-223, fns. omitted (Lawrence).)

When there is close “temporal and spatial proximity between the acts underlying the current convictions,” they are “committed on the ‘same occasion’ “ for purposes of section 667, subdivision (c)(6). (People v. Deloza (1998) 18 Cal.4th 585, 595-596.) In Deloza, the “defendant entered a furniture store, robbed four victims, and left. His robberies were committed in one location, and were apparently brief in duration.” (Id. at p. 595.) The court concluded that the offenses occurred on the same occasion, and thus the trial court retained discretion to impose either concurrent or consecutive sentences under subdivision (c)(6). (Id. at p. 596.)

In Lawrence, the court set forth the following test for determining whether the mandatory consecutive-sentencing provision of the three strikes law applies: “If there are two or more current felony convictions ‘not committed on the same occasion,’ i.e., not committed within close temporal and spacial proximity of one another, and ‘not arising from the same set of operative facts,’ i.e., not sharing common acts or criminal conduct that serves to establish the elements of the current felony offenses of which defendant stands convicted, then ‘the court shall sentence the defendant consecutively on each count’ pursuant to subdivision (c)(6). Conversely, where a sentencing court determines that two or more current felony convictions were either ‘committed on the same occasion’ or ‘aris[e] from the same set of operative facts’ as we have construed those terms in Deloza and the instant case, consecutive sentencing is not required under the three strikes law, but is permissible in the trial court’s sound discretion.” (Lawrence, supra, 24 Cal.4th at p. 233.)

The court’s analysis in Lawrence is instructive. The defendant’s initial crime was the shoplifting theft of a bottle of brandy from a market. While in flight from the crime scene, the defendant trespassed in the backyard of two new victims, Rojas and LaVastida, and assaulted Rojas and LaVastida. The court explained, “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 by at least one to three city blocks, and temporally by two to three or more minutes (from the time defendant stole the brandy from the market until the point he committed the aggravated assault upon LaVastida after having fled from the first crime scene, trespassed into the Rojas/LaVastida backyard, and fled again, chased by Rojas . . . down a long driveway to the street, where he hit LaVastida with the bottle before being subdued).” (Lawrence, supra, 24 Cal.4th at p. 234.) The court concluded that the felony assault upon LaVastida did not arise out of the “ ‘same set of operative facts’ “ as the theft from the market and held that because the defendant’s “multiple current felony convictions neither were committed on the same occasion . . . nor arose from the same set of operative facts, the trial court correctly concluded” that consecutive sentencing was mandated by subdivision (c)(6). (Id. at p. 234.)

Defendant contends that a mandatory consecutive sentence was not required on the evading offense (count 3) because the theft of the pickup and the evading occurred on the same occasion and within close temporal and spacial proximity to one another and the two offenses arose from the same set of operative facts because they shared common acts or criminal conduct. We disagree.

Defendant’s first crime involved acts of evading and reckless driving directed at the police officers who were involved in the chase and members of the public who were on the road during the high speed chase. The second crime was the theft of a vehicle directed at Discount Rent-a-Car and its owner Arasnia, neither of whom were anywhere near the high-speed chase.

As in Lawrence, the two criminal episodes were separated spacially. The evading took place on city streets and the freeway between Los Altos and Woodside, covering a distance of 10 to 12 miles. It ended in Woodside when the officers decided to terminate the pursuit. It is a bit more difficult to pinpoint the location of the vehicle theft. The rental car company was located in Santa Clara. The pickup was abandoned in San Francisco, some 25 to 30 miles north of Woodside. As we noted above, the theft occurred when defendant failed to return the truck to the rental agency in Santa Clara and when he failed to pay for the rental. In Lawrence, a distance of a few blocks was sufficient for the court to conclude that the defendant’s crimes were separated spacially. Here, the locations where defendant rented and abandoned the pickup were miles from the location of the high speed chase.

The offenses were also separated temporally. The high speed chase occurred around 4:00 a.m. on January 15, 2004. It is a bit more difficult to pinpoint the time of the vehicle theft. Defendant had rented the pickup through January 15, 2004, and could return the truck anytime up until 7:30 p.m. that day. The theft occurred after that time, when he failed to return the truck and failed to pay for the rental. Even if we assume the theft occurred when defendant abandoned the pickup in San Francisco, that would have occurred at least 20 to 30 minutes after the high speed chase ended.

On these facts, we conclude that the evading/reckless driving did not occur “on the same occasion” or arise out of the “same set of operative facts“ as the vehicle theft and that the trial court therefore correctly concluded that consecutive sentencing was mandated by section 667, subdivision (c)(6).

Disposition

The judgment is affirmed.

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McAdams, J.

WE CONCUR:

________________________________

Mihara, Acting P.J.

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Duffy, J.

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[1] All further statutory references are to the Penal Code, unless otherwise stated.

[2] People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530-531.

[3] Vehicle Code section 10855 provides: “Whenever any person who has leased or rented a vehicle wilfully and intentionally fails to return the vehicle to its owner within five days after the lease or rental agreement has expired, that person shall be presumed to have embezzled the vehicle.” The statute has not been amended since the court rendered its opinion in Carr. (See Historical and Statutory Notes, 65C West’s Ann. Veh. Code (2000 ed.) foll. § 10855, p. 384.)

[4] The officer’s testimony that the telephone number listed on the checks was disconnected at the time of the investigation was stricken.