Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Merced County Super. Ct. Nos. 30207 & MF44738A. Brian L. McCabe, Judge.
Rita Barker, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, John G. McLean and R. Todd Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
Wiseman, Acting P.J.
Defendant Freddy Meza severely beat his girlfriend, threatened her, and took her car. The next day, he called her and threatened retaliation if she testified. While awaiting trial in the county jail, he assaulted another inmate. He was convicted of several charges and sentenced to 11 years four months in prison.
On appeal, Meza argues that the evidence was insufficient to prove a charge under Penal Code section 10851 of unlawfully taking a vehicle. He also contends that the court erred by failing to give him four additional days of presentence custody credit when it recalled and corrected his sentence four days after the original sentencing. We reject these contentions and order correction of two minor sentencing errors conceded by the People and affirm the judgment in all other respects.
FACTUAL AND PROCEDURAL HISTORIES
The district attorney filed an information in case No. 30207 on August 30, 2006, alleging six counts: kidnapping (Pen. Code, § 207, subd. (a)); two counts of assault by means of force likely to produce great bodily injury or with a deadly weapon (§ 245, subd. (a)(1)); making a criminal threat (§ 422); unlawful taking of a vehicle (Veh. Code, § 10851, subd. (a)); and preventing or dissuading a witness from testifying by means of force or threats (§ 136.1, subd. (c)(1)). For sentence-enhancement purposes, the information alleged that the assaults involved domestic violence and personal infliction of great bodily injury within the meaning of section 12022.7, subdivision (e), and that the preventing or dissuading of a witness from testifying was gang related under section 186.22, subdivision (b)(4).
Statutory references are to the Penal Code unless otherwise specified.
While Meza was in jail awaiting trial in case No. 30207, the district attorney filed a criminal complaint against him and a codefendant in case No. MF44738A, alleging that Meza assaulted Robert Gomez with a deadly weapon. The complaint further alleged that Meza personally used a razor and that the offense was gang related.
Meza was tried by jury in case No. 30207 beginning on December 14, 2006. The victim, his former girlfriend, testified that she had been dating him for about two months when he began to be jealous and suspicious, answering her cell phone to find out who was calling and monitoring the amount of gasoline her car had used between visits with him. On the night of the incident, the victim and Meza sat in her car and talked near the house where the victim lived with her mother. She announced that she needed to go inside and would drive him home. He wanted to come in with her. She drove to his house anyway, but he refused to get out of the car, though she told him to do so several times. The two began arguing and the victim tried to push Meza out of the car, saying “‘I don’t want to be with you. It’s over. I don’t want to be with you. You need to get help. You’re fucking crazy.’”
Meza responded by punching her many times in the face with his fist. She tried to escape from the car but he pulled her back in and continued punching her until she blacked out. When she regained consciousness, she had been moved to the passenger seat and Meza was on top of her with both hands on her neck, choking her while saying, “‘You’ve been on green light status, bitch.’” From a previous discussion, the victim understood this to mean that Meza and his gang affiliates had been authorized to kill her. The victim passed out again.
He stopped choking her and she regained consciousness again and sat up. He told her not to leave the car. Her face and shirt were covered with blood and she was choking on blood in her nose and throat. She asked him to take her to the hospital, but he refused, saying she would call the police and he did not want to go to back to jail. Meza started the car and drove off, heading out of Merced on a highway. The victim asked him to take her to the hospital several times, but he continued to drive into the country. Several times he stopped the car among orchards and sat quietly repeating that he did not want to go back to jail. There was a powerful smell of blood in the car and Meza repeatedly rolled down his window because the smell was making him gag. The victim finally persuaded Meza to take her to the hospital in Merced by claiming she was pregnant with his child and agreeing to tell the authorities she had been attacked by a group of girls.
At the hospital, the victim was placed in a room alone with Meza. Meza cried and apologized, but refused to give the victim her car keys and cell phone when she asked for them. Then he left the room, saying he was going to smoke a cigarette and make a phone call. He never came back.
After the victim was released from the hospital, Meza called her on the phone. “He was just like, you know, if I make a report and that if I had to testify against him, you know, I’d be on green light again by his home boys.” He also said he would leave her car in a parking lot in Stockton with the keys in the glove compartment. Meza repeated the threat about “green light” in a subsequent phone conversation. Later, the victim received a call from another man, who said he knew where she and all her family members lived and all would “‘be on green light’” if she testified.
A radiologist from the hospital where the victim was treated testified about her injuries. He described x-rays of the victim’s face and explained that they showed fractures in four places.
Meza was arrested in Texas and extradited to California. A Merced police officer dispatched to Texas to retrieve Meza testified that Meza said he was a Sureño gang member and did not want to be incarcerated with Norteño gang members. Officers from the county jail also testified about Meza’s gang affiliation. Meza told the officers he had been a Sureño and a member of the South Side Locos for about six or seven years and that he did not wish to be housed with Norteños. He had gang tattoos indicating his Sureño status. Later, Meza said he was being attacked by fellow gang members and wanted to be reclassified as a former member who had dropped out. Jail administrators reclassified Meza and housed him in an area for former gang members. Still later, Meza asked to be housed with Sureños again, but the request was denied after another Sureño told the officer Meza would be beaten if he returned.
A police gang expert opined that Meza was a Sureño gang member. His opinion was based on Meza’s numerous gang tattoos; his admissions—to police and in written documents—of gang membership; a drawing and letters by Meza that were replete with gang symbols and images; Meza’s actions in committing the current offenses; and his behavior while in jail awaiting trial in this case. The expert also opined, in the form of answering a hypothetical question, that Meza’s threats against the victim and her family if she testified benefitted Meza’s gang.
Meza testified. His testimony confirmed much of the prosecution’s case. On the night of the incident, he drank two 40-ounce beers around midnight and went to sleep in the back seat of the victim’s car. She woke him up at 4:00 o’clock in the morning and said she was taking him home. He did not want to go home, and when they arrived at his house, they argued. Then he grabbed her and hit her. He did not know how many times, but testified that he had no reason to disbelieve her claim that it was six or seven times.
He claimed at first that he did not remember choking her because he “blacked out,” but admitted he had no reason to disbelieve her claim that he did. Later, Meza testified that he stopped choking her because he saw she was bleeding and he “realized, you know, what I was doing.” He also admitted that he drove out into the country and refused to take her to the hospital or let her get out of the car for about an hour, although she asked several times, because he knew he had injured her and was afraid of “[g]etting locked up again.” He said he knew what he had done was wrong. He admitted that, before they reached the hospital, he told the victim that people who testify can be put on green-light status.
After they were at the hospital for about 30 minutes, Meza feared he would get caught; he left, driving the victim’s car to Stockton. He testified that he took the victim’s car without her permission and after refusing her request to return her keys because “she didn’t need them.” When he said this, he had already decided he was going to leave town.
Meza admitted he called the victim the next day and repeated that if she testified, she could be put on green-light status; he added that he knew where all her family lived. He also said he could come to her house because her dog would not bark at him. He conceded that he said these things to frighten the victim and convince her not to testify against him. He acknowledged that green-light status meant the victim could be beaten or killed.
Finally, Meza admitted he told the officers who transported him back from Texas that he was a Sureño gang member. He also admitted he joined his gang in 1998 and was an active member for several years. He confirmed that, while incarcerated in the current case, he wrote a letter to his younger brother in Phoenix encouraging him to recruit gang members and start a branch of the South Side Locos at that location. He testified that he received two new gang tattoos while in custody in the current case. Meza claimed, however, that he dropped out of the gang in 2004 and identified himself as a member to police in the current case only to avoid the harm he would suffer if housed with Norteños in jail.
The jury found Meza guilty of assault by means of force likely to produce great bodily injury, making a criminal threat, unlawful taking of a vehicle, and dissuading or preventing a witness from testifying by means of force or threats. It found him not guilty of the second charge of assault by means of force likely to produce great bodily injury. (The prosecution had argued that the choking constituted a separate assault.) It was unable to reach a verdict on the charge of kidnapping. It found true the allegation that the assault involved domestic violence, but found false the allegation that the dissuading of a witness was gang related.
The People amended the kidnapping charge to allege false imprisonment. (§ 236.) Meza pleaded no contest to this charge. At the same time, he pleaded no contest to the charge of assault with a deadly weapon in case No. MF44738A, the attack on an inmate with a razor.
The aggregate sentence of 11 years four months consisted of the middle term of three years for the assault on Meza’s girlfriend; a consecutive four-year enhancement for personal infliction of great bodily injury under circumstances involving domestic violence; a consecutive term of eight months (one-third of the middle term) for unlawfully taking a vehicle; a consecutive term of one year (one-third of the middle term) for dissuading or preventing a witness from testifying by means of force or threats; a consecutive term of eight months (one-third of the middle term) for false imprisonment; a consecutive term of one year (one-third of the middle term) for the assault on the inmate; and a consecutive one-year term (one-third of the middle term) for the gang enhancement on that count. The court applied section 654 to stay the sentence for making a criminal threat.
DISCUSSION
I. Sufficient evidence of unlawfully taking a vehicle
Meza contends that insufficient evidence was presented at trial to prove the charge of unlawfully taking a vehicle. Specifically, he claims the evidence did not show he had the necessary intent. This claim is without merit.
When the sufficiency of the evidence is challenged on appeal, “the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.)
To commit this offense, a defendant must specifically intend either permanently or temporarily to deprive the owner of title to or possession of the vehicle. (Veh. Code, § 10851, subd. (a); People v. Garza (2005) 35 Cal.4th 866, 876.) The evidence in this case showed that Meza had the specific intent to deprive the victim of possession of her car temporarily. The two witnesses to the events, the victim and Meza himself, testified that the victim asked for her car keys at the hospital and that Meza refused to give them to her and left. Meza testified that he intended to leave town when he refused to give back the keys and that, fearing arrest, he then went to the victim’s car and drove it to Stockton without her permission. A reasonable jury could infer from this evidence that, when Meza took the car, he intended to deprive the victim of possession of it while he was using it to escape.
Meza makes six arguments under the sufficient-evidence rubric, but none of these provide any support to his claim that the evidence did not establish the necessary intent. First, he says the attorneys’ closing arguments did not explain the intent element. There is no requirement that attorneys recite every element of each charged offense in their closing arguments. The jury is expected to rely on the court’s instructions. (People v. Osband (1996) 13 Cal.4th 622, 717.) Meza quotes the court’s instructions on this offense in his brief, but he does not claim they were in any way defective. In any event, the absence of a recitation of elements by counsel has nothing to do with the sufficiency of the evidence.
Next, Meza points to two questions the jury passed to the judge about the intent necessary to establish kidnapping. These questions were not about the intent necessary to prove the vehicle offense and Meza does not claim they were on this subject. Even if they had been, they would not support a claim of insufficient evidence. The sufficient-evidence inquiry asks whether any reasonable jury could have found the defendant guilty, not whether the defendant’s particular jury was confused.
Third, Meza says his statement that he kept the keys because the victim did not need them shows he lacked the necessary intent because “[i]t was reasonable for him to think that if he used the car for a while, to drive to Stockton, it would not be depriving [the victim] of its use, as she was unable to drive anyway.” The question of whether Meza deprived or intended to deprive the victim of an ability to use or drive her car on a particular occasion is irrelevant. (Even if it were relevant, it would not support defendant’s position. It was he who temporarily deprived her of the ability to drive by assaulting her.) Instead, the offense requires deprivation of title or possession. An owner’s possession of a vehicle has nothing to do with his or her current ability to drive or use it. Meza’s taking of the car without the victim’s permission after refusing her request to return the keys and while planning to use it to flee and avoid arrest, sufficed to establish his intent to deprive her temporarily of possession regardless of his views about what she needed.
Fourth, Meza claims the evidence did not prove the necessary intent because, when the victim later asked for the car back, Meza left it in a Stockton parking lot with the keys in the glove compartment. The fact that Meza allowed the car to be recovered when he was through with it, instead of keeping it or fleeing further in it, is not inconsistent with an intent to deprive its owner of possession temporarily.
Fifth, Meza argues that the evidence was insufficient to show the necessary intent because he and the victim were involved in an intimate relationship, and “[c]ouples who are that intimate typically share everything without even thinking about it.” This is not a case in which a defendant took a car believing he had tacit permission to do so because of his relationship with the owner. The evidence showed unequivocally that Meza took the car without the victim’s permission after refusing her express request for her keys so he could try to escape the consequences of severely beating her. Under these circumstances, Meza’s relationship with the victim does not undermine the reasonableness of the jury’s conclusion that he intended to deprive her of possession temporarily.
Finally, Meza argues that his real intent was to escape and avoid punishment. Since the jury reasonably could find this intent, he argues, it could not find beyond a reasonable doubt that he intended to deprive the victim of possession. This argument is based on a false dichotomy. The jury could reasonably find that Meza intended to deprive the victim of possession in order to escape. It did not have to choose one or the other. The situation is undoubtedly typical in this respect. A person unlawfully taking a vehicle ordinarily wants to use it for something; depriving the owner of possession is not the taker’s only intent. The existence of a reasonable inference that Meza intended to use the car to escape therefore did not preclude a finding beyond a reasonable doubt that he intended to deprive the car’s owner of possession temporarily.
II. Credit for local custody between sentencing and resentencing
After the sentencing hearing on January 29, 2007, the trial court reviewed section 654 and realized it had made an error by imposing a concurrent sentence for count four, making a criminal threat, instead of staying the sentence. It notified the parties and held another hearing to correct the mistake. The second hearing was held on February 2, 2007. Meza now argues that, because he remained in local custody between the two hearings, he should have received an additional four days of presentence custody credit plus the associated presentence conduct credit; he says this credit should have appeared in the amended abstract of judgment the court issued after the February 2 hearing. This is an issue of law that we review de novo. The court did not err.
A defendant’s term of imprisonment begins “upon the actual delivery of the defendant into the custody of the Director of Corrections .…” (§ 2900, subd. (a).) Section 2900.5 governs the award of credit for time in custody before the term of imprisonment begins. The sentencing court has the duty “to determine the date or dates of any admission to, and release from, custody prior to sentencing and the total number of days to be credited pursuant to this section.” The court must include this number of days in the abstract of judgment. (§ 2900.5, subd. (d).) Prison authorities (or “any agency to which a person is committed”) have the duty “to apply the credit provided for in this section for the period between the date of sentencing and the date the person is delivered to the agency.” (§ 2900.5, subd. (e).) “Read together, these sections establish a scheme requiring the sentencing court to award credits for all days in custody up to and including the day of sentencing (§ 2900.5, subd. (a)) and the Department of Corrections to award credits from the day after sentencing to the day before delivery to the department (§ 2900.5, subd. (e)) and all days thereafter (§ 2900).” (People v. Smith (1989) 211 Cal.App.3d 523, 527.) In other words, the court determines presentence custody credits up to the sentencing date, the prison determines presentence custody credits between the sentencing date and the date of delivery of the defendant to the prison, and the prison also determines custody credits earned during service of the sentence.
In this case, the court issued an abstract of judgment after the hearing on January 29, 2007, and an amended abstract of judgment after the hearing on February 2, 2007. Both documents indicate that sentence was pronounced on January 29, 2007. This means the court’s duty was to calculate the presentence credits through January 29, 2007, while prison authorities had the duty to calculate the presentence credits for the period from January 30, 2007, to the date of Meza’s delivery into their custody. Contrary to Meza’s argument, therefore, the court was not required to calculate credits for the period from January 30, 2007 to February 2, 2007, and the abstract of judgment should not be amended to include credits for that period. The Legislature anticipated the passage of time between a sentencing date and the date a defendant is transported to prison; it provided that prison authorities, not the court, would calculate and apply credits accruing during that time.
It makes no difference that the court held a second hearing after the sentencing date to correct an error since January 29, 2007, remained the date of sentencing. We do not understand Meza to argue to the contrary.
Meza cites People v. Buckhalter (2001) 26 Cal.4th 20 and People v. Johnson (2004) 32 Cal.4th 260, but neither case supports his position. In Buckhalter, the Supreme Court considered the effect on custody credits of an appellate remand for resentencing. It rejected the defendant’s argument that all the time served before the resentencing should be treated as presentence time subject to award of presentence conduct credits. Time served in prison before the resentencing is subject to award only of prison worktime credits. (People v. Buckhalter, supra, at p. 37.) In the new abstract of judgment issued after the resentencing, however, the sentencing court is required to include all the actual days the defendant spent in any type of custody, jail or prison, up to the time of the resentencing. (Ibid.) This is because section 2900.1 provides that, where a defendant serves a portion of a sentence which is subsequently modified or invalidated, the portion already served “shall be credited upon any subsequent sentence he may receive upon a new commitment for the same criminal act or acts.” This holding does not call for any change in the presentence credit calculation in the abstract of judgment in this case. The second hearing and amended abstract of judgment was not a new commitment, and Meza had not yet served any portion of his sentence. The sentencing date in the amended abstract of judgment remained the same, and Meza’s sentence of imprisonment had not begun to run because he had not been delivered into the custody of prison authorities. Section 2900.1 and Buckhalter therefore do not apply to the period from January 30, 2007 to February 2, 2007. Instead, that is part of the period for which prison authorities must provide presentence credit pursuant to section 2900.5, subdivision (e).
Presumably, the post-remand abstract of judgment issued by the sentencing court in Buckhalter showed the date of the post-remand hearing, not the original sentencing hearing, as the sentencing date. Otherwise, the Supreme Court’s order to include the time already served as presentence credit would have resulted in double-counting of that time.
In People v. Johnson, supra, 32 Cal.4th 260, the Supreme Court considered whether, for purposes of conduct-credit computation, the time served between an original sentencing and a resentencing following the trial court’s recall of the sentence was presentence or postsentence time. (Id. at p. 263.) It held that it was postsentence time because the defendant had already been committed to prison and begun serving his sentence, and the recall did not restore his presentence status. (Id. at pp. 263, 267.) Meza correctly argues that the period from January 30, 2007 to February 2, 2007, was a period of presentence custody because he had not yet been delivered into the actual custody of prison authorities. It does not follow, however, that the court was required to include this period in its calculations and set it out in the abstract of judgment. Since the period followed the sentencing date and preceded Meza’s delivery to prison authorities, it is a presentence period for which prison authorities, not the court, must calculate and apply credit under section 2900.5, subdivision (e).
Our conclusion is also contrary to the People’s view. They argue, in effect, that the period from January 30, 2007 to February 2, 2007, was postsentence, not presentence custody time even though Meza was still in the county jail, because Meza was sentenced on January 29, 2007, and on that date “his prison term began irrespective of where he was housed.” This is not correct. As we have said, section 2900 states that a prison term begins when the defendant is delivered into the actual custody of prison authorities. The period here at issue is presentence custody time for which prison authorities are required to apply credit under section 2900.5, subdivision (e).
III. Conduct-credit computation
Applying section 2933.1, the court awarded presentence conduct credit at the rate of 15 percent based on 239 days of actual custody. Defendant argues, and the People concede, that the court made a mathematical error when it awarded 34 days. Fifteen percent of 239, rounded down to the nearest day, is 35. We order that the judgment be modified and direct the court to issue an amended abstract of judgment correcting this error.
IV. Stay of execution versus stay of imposition of sentence
At the February 2, 2007, hearing, the court stated that, under section 654, “imposition shall be stayed” of the two-year sentence for count four. Section 654 requires, however, that a sentence be imposed and its execution stayed. (People v. Monarrez (1998) 66 Cal.App.4th 710, 713; People v. Eberhardt (1986) 186 Cal.App.3d 1112, 1124.) Meza argues, and the People concede, that the court should have stated that execution of the sentence, not its imposition, was stayed.
The abstract of judgment needs no correction on this point. It correctly states that the sentence for count four is “[s]tayed pursuant to Section 654 of the Penal Code.” Our order will simply be that the judgment is modified to impose and stay execution of the sentence for count four, not to stay imposition.
DISPOSITION
The judgment is modified (1) to increase the number of days of presentence conduct credit awarded under section 2933.1 from 34 to 35, and (2) to impose the sentence for count four and stay its execution instead of staying its imposition. The judgment is affirmed as modified. The trial court shall prepare an amended abstract of judgment and forward it to the appropriate prison authorities.
WE CONCUR: Levy, J. Kane, J.