P. v. Juarez 11/16/04 CA2/7

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B165580

Case Date: 01/19/2005

Preview:Filed 11/16/04

CERTIFIED FOR PARTIAL PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN THE PEOPLE, Plaintiff and Respondent, v. HUGO D. JUAREZ, Defendant and Appellant. B165580 (Super. Ct. No. KA058374)

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APPEAL from a judgment of the Superior Court of Los Angeles County. Bruce F. Marrs, Judge. Affirmed in part, reversed in part and remanded. Sylvia Baiz, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, and Herbert S. Tetef, Deputy Attorney General, for Plaintiff and Respondent.

Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of parts I, II and IV.

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A jury found Hugo Juarez guilty of carjacking and found true an allegation he personally used a firearm. The trial court sentenced him to the upper term of nine years on the offense and imposed an additional 10-year term for the firearm enhancement. Juarez contends the trial court erred in instructing the jury with CALJIC No. 2.15 and in failing to instruct the jury on voluntary intoxication. Juarez also claims the trial court erred in sentencing him to the upper term on the offense, and in using the same facts to impose that high term as well as a consecutive term on the enhancement. In an unpublished portion of the opinion, we find no instructional error. We conclude, however, the trial court committed Apprendi-Blakely error when the judge rather than a jury found "circumstances in aggravation" and on that basis imposed the upper term on the carjacking count. Because this error was not harmless in the circumstances of this case, we reverse that sentence and remand for further proceedings. FACTS AND PROCEEDINGS BELOW At the time of the incident at issue, the victim, Ryan Comstock, worked for Pizza Hut. Just before 8:00 p.m. one evening his employer sent him to deliver a pizza in Azusa. He parked his car in front of the customer's house. As he exited his car, Comstock saw a man standing across the street near a "light-colored pickup truck." The truck was not parked there when Comstock first drove down the street. Comstock would later identify this man as defendant Hugo Juarez. As Comstock was standing next to the driver's side door of his car, Juarez approached. Juarez was holding a silver automatic handgun which was level with his waist and was pointed at Comstock. Juarez ordered Comstock to get down on the
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Penal Code section 215, subdivision (a). All further statutory references are to the Penal Code unless otherwise noted. 2 Section 12022.53, subdivision (b). 3 Apprendi v. New Jersey (2000) 530 U.S. 466; Blakely v. Washington (2004) ___ U.S. ___ [159 L.Ed.2d 403]. 2

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ground. Comstock got on his hands and knees in the street after Juarez pushed him down. Comstock felt afraid. Juarez asked Comstock for the keys to the car. Comstock said the keys were in the ignition. Comstock saw Juarez get in the car, start the ignition and drive away. The light-colored pickup truck took off in the opposite direction. Comstock got up and went to the door of the customer's house. The customer allowed Comstock to enter the house and call the police. Three days after the incident, the police located Comstock's car at a mobile home park in Palm Springs. Juarez and another man were sitting in the car at the time. A white pickup truck was parked nearby. A detective who searched Comstock's car found a backpack in the trunk which contained items belonging to Juarez. A couple of days later, another detective searched Juarez's wallet and found a business card from a Pep Boys store in the City of Covina. The police contacted Comstock and told him they had located his car. Five days after the incident, Comstock went to Palm Springs to pick up his car. When he got there, he met with a detective, who showed him a six-pack of photographs. Comstock immediately identified Juarez as the man who took his car. Juarez was charged with one count of carjacking in violation of section 215, subdivision (a). The information also alleged Juarez personally used a firearm within the meaning of section 12022.53, subdivision (b). Juarez testified at trial. In August 2002, he was living in Cathedral City near Palm Springs. He was unemployed and had been asked to vacate his apartment because he could not afford to pay the rent. On August 24, the day of the incident, he planned to drive to his uncle's house in La Puente and see if he could stay there until he found a job. On the way to La Puente, Juarez's car (a Cadillac) broke down. He dropped it off at a Pep Boys store in Covina. An employee there gave him a Pep Boys business card. Juarez said he "was desperate" because he had no job, no place to live and no money to

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send to his family. So he walked to a store and bought a six-pack of beer. He started drinking the beer and then he walked "for a long time." He did not have a gun on him. Juarez came upon a car with its windows down. He said the car "caught [his] attention because [he] didn't have a car to get back home." There was no one near the car. Juarez decided to take it. With a chrome-colored beer can still in his hand, Juarez got in the car. He saw the keys were in the ignition. He "took off right away." Juarez drove the car to Cathedral City because he "did not want to create problems for [his] uncle" by bringing a stolen car to the house. He planned to look for construction work and to use the car to drive to job sites. The jury found Juarez guilty of carjacking and found true the personal firearm use allegation. The trial court sentenced Juarez to the upper term of nine years on the offense and imposed a consecutive 10-year term on the firearm use enhancement. DISCUSSION I. THE TRIAL COURT DID NOT ERR IN INSTRUCTING THE JURY WITH CALJIC NO. 2.15.
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Using CALJIC No. 2.15, the trial court instructed the jury as follows: "If you find that the defendant was in conscience [sic] possession of a recently stolen property [sic], the fact of that possession is not by itself sufficient to permit an inference that the defendant is guilty of the crime of carjacking. Before guilt may be inferred there must be corroborating evidence tending to prove the defendant's guilt. However, this corroborating evidence need only be slight and need not by itself be sufficient to warrant an inference of guilt. As corroboration you may consider the attributes of the possession of the time, place and manner [sic] that the defendant had an opportunity to commit the

Juarez testified he moved to the United States from Mexico to try to help his mother and his son financially. His mother needed a kidney transplant. 5 Comstock testified he did not smell alcohol when Juarez was near him. 4

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crime charged, the defendant's conduct, and any other evidence which tends to connect the defendant with the crime charged." Juarez asserts several reasons why he believes this instruction was improper. First, he argues this instruction informed the jury it could convict Juarez of carjacking if it simply found he was in possession of the car three days after the incident. Obviously, this is not so. The instruction specifically states possession is not enough: "Before guilt may be inferred there must be corroborating evidence tending to prove the defendant's guilt." Juarez next claims this instruction improperly shifted to him the burden of proving he did not commit a carjacking, and specifically that he did not use force or fear to take the car. Our Supreme Court already has rejected this burden shifting argument.
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Considering the instructions as a whole, which the jury was charged to do, it was clear a guilty verdict required the prosecution to prove each element of the offense of carjacking beyond a reasonable doubt.
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Finally, Juarez contends the instruction is an unconstitutional permissive use instruction because there was no "rational connection between the underlying fact [he was in possession of a stolen car] and the desired inference [he took the car by force or fear]." As Juarez correctly points out, a permissive presumption is improper where "there is no rational way the trier could make the connection permitted by the inference." Moreover, such a presumption is not justified unless "the evidence is `sufficient for a rational juror to find the inferred fact beyond a reasonable doubt . . . .'"
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We conclude the instruction was proper in this case. Comstock's testimony provided substantial evidence of each element of the offense of carjacking and supported

People v. Johnson (1993) 6 Cal.4th 1, 37. See People v. Holt (1997) 15 Cal.4th 619, 677; People v. Smithey (1999) 20 Cal.4th 936, 977-979. 8 Ulster County Court v. Allen (1979) 442 U.S. 140, 157. 9 People v. Johnson, supra, 6 Cal.4th at page 37, quoting Barnes v. United States (1973) 412 U.S. 837, 843.
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the rational connection between the proved fact

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