People v. Gray

• Decision Date: 12 August 1998
• Docket Number: No. A078807,A078807
• Citation: 66 Cal.App.4th 973,78 Cal.Rptr.2d 191
• Court: California Court of Appeals Court of Appeals
• Parties: , 98 Cal. Daily Op. Serv. 7168, 98 Daily Journal D.A.R. 9875 The PEOPLE, Plaintiff and Respondent, v. Gregory Lee GRAY, Defendant and Appellant.

Page 191

78 Cal.Rptr.2d 191

66 Cal.App.4th 973, 98 Cal. Daily Op. Serv. 7168,

98 Daily Journal D.A.R. 9875

The PEOPLE, Plaintiff and Respondent, v. Gregory Lee GRAY, Defendant and Appellant.

No. A078807.

Court of Appeal, First District, Division 5, California.

Aug. 12, 1998.

Certified for Partial Publication. ^*

Review Denied Nov. 18, 1998.

[66 Cal.App.4th 978] Nina Rivkind, under appointment by the Court of Appeal, San Francisco, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Linda M. Murphy, Deputy Attorney General, Lisa H. Ashley, Deputy Attorney General, for Plaintiff and Respondent.

JONES, Associate Justice.

Gregory Lee Gray appeals his convictions for attempted carjacking (Pen.Code, §§ 215, 664) ¹ and attempted kidnapping (§§ 207, subd. (a), 664). The issues on appeal include questions concerning the constitutionality of section 215, the sufficiency of the evidence supporting appellant's conviction for attempted carjacking, the trial court's rulings on various motions, and appellant's sentence. We conclude that appellant's contentions all lack merit, and therefore affirm the trial court's judgment.

PROCEDURAL BACKGROUND

On January 14, 1997, the Contra Costa County District Attorney filed an information charging appellant in count 1 with attempted carjacking and in count 2 with attempted kidnapping. The information also charged appellant with the following enhancements based on appellant's convictions for robbery in 1993: a habitual criminal enhancement (§ 667, subd. (a)), a prior prison term enhancement (§ 667.5, subd. (b)), a "three strikes" enhancement (§ 1170.12, subds. (b) & (c)), and a probation ineligibility clause (§ 1203, subd. (e)(4)).

A jury trial on the two criminal counts was held on April 22-24, 1997. The jury found appellant guilty on both counts.

At the beginning of the trial, the trial court had granted appellant's motion to bifurcate trial on the enhancement allegations. A court trial was held on those allegations following the jury's verdict. The court found all the allegations to be true.

At the sentencing hearing held on May 23, 1997, the trial court denied appellant's motion to strike his prior convictions pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 53 Cal.Rptr.2d 789, 917 P.2d 628. The court sentenced appellant to 25 years to life in state prison for the attempted carjacking offense, and stayed sentencing on the attempted kidnapping offense pursuant to section 654. The court imposed a consecutive five-year enhancement pursuant to section 667, subdivision (a) and a one-year enhancement pursuant to section 667.5, subdivision (b), but struck the latter. Appellant's total term is 30 years to life in state prison.

FACTUAL BACKGROUND

At about 3:30 a.m. on October 18, 1996, Alexandra Edwards, a BART (Bay Area Rapid Transit) station agent, arrived at the Lafayette, California BART station. Her job was to open the station at 4:00 a.m. She parked her car near the station entrance and turned the engine off. She opened the door Edwards heard appellant mutter something and assumed he was asking for money, so she ignored him. Appellant then told Edwards to give him her car keys and move to the other side of the car. Alarmed, Edwards did not give appellant her keys, but told him to step aside and let her out of the car. Appellant stepped closer to the car and repeated his demand more loudly.

on her side of the car, but before getting out she turned back to retrieve her backpack. When she started to get out of the car, she saw a man she identified at trial as appellant approaching the car from the rear.

Edwards, now afraid for her life, told appellant to let her out and that he could take the keys. Unsatisfied with this offer, appellant became even more aggressive. Leaning closer to the car, he told Edwards, "You don't understand." He stuck his hand under his shirt, told Edwards he had a gun, and threatened to kill her if she refused to cooperate. He said he did not care about the police because there was already an outstanding warrant for his arrest.

Edwards believed appellant would catch her if she tried to escape out the passenger side of the car. She then saw her sunvisor ² laying open on the passenger seat. She picked up the visor and thrust it at appellant's face through the still open driver's side door. She also attempted to kick him but missed. As appellant retreated from this assault, Edwards began closing the door. Appellant grabbed the door but after a brief struggle had to let go to save his fingers from being smashed as the door closed. Edwards locked the door and started the car. As she reversed out of her parking space, she saw appellant standing in the way. He moved, however, to avoid being hit. Edwards drove to a service station about 10 minutes away, where the attendants called the police. She testified that as she left the BART station she took a good look at appellant because she knew she would have to identify him later.

Contra Costa County Deputy Sheriff Edward Gibbons responded to the call. Gibbons recognized appellant from Edwards' description of him. ³ Gibbons, another deputy sheriff, and Edwards returned to the BART station at about 4:00 a.m. to search for appellant, but did not find him. Edwards later identified appellant from a photo lineup.

Appellant, testifying in his own defense at trial, said that Edwards had simply misunderstood his request for help. He denied putting his hand in his shirt and pretending to have a gun. He testified that after Edwards drove off he waited at the station entrance for 10 to 15 minutes until a man gave him money for a ticket, and then he left on a train.

On cross-examination, appellant admitted that he had two prior robbery convictions, and that on both occasions he had pretended to have a gun.

DISCUSSION

I. Section 215, Subdivision (a) Is Not Unconstitutionally Vague

Appellant contends his conviction for attempted carjacking must be reversed because section 215, subdivision (a) is unconstitutionally vague. We disagree.

"The fundamental policy behind the constitutional prohibition of vaguely worded criminal statutes was stated in Lanzetta v. New Jersey (1939) 306 U.S. 451, at page 453 [59 S.Ct. 618, 83 L.Ed. 888] ...: 'No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids.' " (People v. Superior Court (Engert) (1982) 31 Cal.3d "The starting point of our analysis is the strong presumption that legislative enactments must be upheld unless their unconstitutionality clearly, positively, and unmistakably appears. [Citations.] A statute should be sufficiently certain so that a person may know what is prohibited thereby and what may be done without violating its provisions, but it cannot be held void for uncertainty if any reasonable and practical construction can be given to its language." (Williams v. Garcetti, supra, 5 Cal.4th at p. 568, 20 Cal.Rptr.2d 341, 853 P.2d 507, internal quotation marks and citation omitted.)

797, 801, 183 Cal.Rptr. 800, 647 P.2d 76.) "[D]ue process of law in this context requires two elements: a criminal statute must be definite enough to provide (1) a standard of conduct for those whose activities are proscribed and (2) a standard for police enforcement and for ascertainment of guilt. [Citations.]" (Williams v. Garcetti (1993) 5 Cal.4th 561, 567, 20 Cal.Rptr.2d 341, 853 P.2d 507, internal quotation marks omitted.) "[A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must [66 Cal.App.4th 982] necessarily guess at its meaning and differ as to its application, violates the first essential element of due process of law." (People v. Antoine (1996) 48 Cal.App.4th 489, 496, 56 Cal.Rptr.2d 530, internal quotation marks and citations omitted.)

In pertinent part, section 215, subdivision (a) defines "carjacking" as "the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence, ... against his or her will and with the intent to either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession, accomplished by means of force or fear." (§ 215, subd. (a).)

Appellant attacks as vague the terms "felonious taking" and "temporarily deprive". Asserting that courts and commentators have defined "felonious taking" as requiring the intent permanently to deprive an owner of his or her property, appellant contends section 215, subdivision (a) is inherently vague and ambiguous because it permits a conviction for carjacking not only when a defendant has such an intent, but also when a defendant only has the intent temporarily to deprive the person in possession of a vehicle.

We consider appellant's argument in light of both the language and the legislative history of section 215, subdivision (a). (See People v. Antoine, supra, 48 Cal.App.4th at p. 497, 56 Cal.Rptr.2d 530). The language of section 215, subdivision (a) does not evince any "inherent" vagueness or ambiguity. Appellant may be correct regarding prior interpretations of the term "felonious taking." Nevertheless, in section 215, subdivision (a), the Legislature expressly described the intent required for the crime of carjacking, i.e., "the intent to either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession." (§ 215, subd. (a), italics added.) The statutory language clearly permits a conviction for carjacking based on evidence of the latter intent. ⁴

The legislative history of section 215 supports our conclusion. In People v. Medina (1995) 39 Cal.App.4th 643, 46 Cal.Rptr.2d 112, the court, though considering an issue different from ours, set forth portions of...