People v. May, F048482 (Cal. App. 3/12/2008)
| Decision Date | 12 March 2008 |
| Docket Number | F048482 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. JIMMY EDWARD MAY, Defendant and Appellant. |
Appeal from a judgment of the Superior Court of Stanislaus County, No. 1085195, Charles V. Stone, Judge.
Alister McAlister, 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, Louis M. Vasquez and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
On February 24, 2005, an information was filed in the Superior Court of Stanislaus County charging appellant Jimmy Edward May with count I, receiving a stolen vehicle (Pen. Code,1 § 496d) with a prior conviction for auto theft (Veh. Code, § 10851) within the meaning of section 666.5; count II, possession of methamphetamine (Health & Saf. Code, § 11377); and count III, misdemeanor possession of a hypodermic needle (Bus. & Prof. Code, § 4140).2 As to counts I and II, it was further alleged appellant suffered one prior strike conviction (§ 667, subds. (b)-(i)) and served five prior prison terms (§ 667.5, subd. (b)). Appellant pleaded not guilty and denied the special allegations.
On May 2, 2005, appellant's jury trial began. On May 3, 2005, appellant was found guilty as charged. On May 4, 2005, appellant waived a jury trial on the special allegations, and the court found all special allegations true.
On May 31, 2005, appellant filed a motion to dismiss the prior strike conviction. On June 7, 2005, the prosecutor filed a statement in aggravation.
On June 10 and 30, 2005, the court conducted the sentencing hearing, denied appellant's motion to dismiss, denied probation, and sentenced appellant to an aggregate term of 12 years four months: as to count I, the court imposed the upper term of three years, and doubled that term to six years as the appropriate second strike sentence; as to count II, the court selected the midterm of two years, doubled it to four years as the second strike term, and imposed a consecutive term of one year four months (one-third the doubled midterm); five consecutive one-year terms for the prior prison term enhancements; and a concurrent term of six months for the misdemeanor conviction in count III.3
On July 21, 2005, appellant filed a timely notice of appeal.
On the afternoon of December 6, 2004, Megan Neely drove to her job at an office near Doctor's Hospital in Modesto. She parked her 1987 white Honda Accord on the third floor of a nearby public parking garage. Her car was equipped with a stereo and CD player. The registration and insurance information were in the glove compartment, and she kept other personal papers and items in the car. She locked the doors and took the keys with her, but she did not place the "Club" security device across the steering wheel. Around 7:00 p.m., Neely left work and returned to the parking garage. She discovered that her car had been stolen and immediately reported the theft to the police.
Around 10:30 p.m. on December 10, 2004, Stanislaus County Sheriff's Deputy David Thompson responded to a dispatch on Canal Street in Modesto, unrelated to Neely's stolen car. Around 11:00 p.m., Deputy Thompson returned to the neighborhood on another unrelated dispatch, this time regarding alleged criminal threats at a residence on Canal Street. Deputy Thompson noticed a white Honda Accord was parked directly in front of the Canal Street residence. Deputy Thompson realized he had not seen the white Honda parked in that location when he had driven on Canal Street 30 minutes earlier.
Deputy Thompson testified the white Honda was backed into the driveway of the residence, with the front of the car facing the street. Billy May, James Wood, and Steve Mackelroy were standing by the trunk and looking into that compartment. The driver's side door was open, and appellant was standing inside the open door, in such a position that he could have slid into the driver's seat. Patricia Mejia stood in front of the car
Deputy Thompson approached from the passenger side of the white Honda and tried to talk to the group to determine if they were the individuals who called for assistance. Appellant immediately performed a "turn and dive," crouched down, and disappeared behind the vehicle. The other four individuals walked away from the white Honda and did not respond to Thompson's questions, and it appeared "as if nobody wanted to be around the car as I was walking up."
Deputy Thompson became nervous about the situation and called in the license plate number of the white Honda. Within seconds, Thompson learned the vehicle had been reported stolen; it was Megan Neely's Honda. Thompson drew his service weapon and ordered everyone on the ground, and called for immediate backup assistance. Appellant and the others were still near the car, and they complied with his order without incident. Thompson was unable to keep appellant in view because he was on the other side of the car.
After the backup officers arrived, Deputy Thompson advised appellant of the warnings pursuant to Miranda v. Arizona (1966) 384 U.S. 436 (Miranda), and appellant agreed to answer questions. Appellant initially identified himself as "Jimmy Lindsey," but his identity was later determined during booking. Deputy Thompson testified that when he asked appellant about the white Honda, appellant pretended to be tired, acted as if he was half-asleep, mumbled, and would not respond to the questions. When Deputy Thompson stepped away from appellant and spoke to another deputy, appellant appeared alert and began looking around as if everything was fine.
Appellant eventually said that he was homeless, and that he walked from a nearby park that night to visit his relatives at the house. When he arrived at the house, he did not knock or make contact with the residents. Instead, he decided to lie down under a tree in the front yard and go to sleep. Appellant said a car was not in the driveway when he fell asleep. Appellant claimed he was still sleeping when Deputy Thompson arrived and woke him up. Appellant also claimed that when he woke up, he saw the Honda parked in the driveway for the first time. Appellant said he had never been inside the Honda.
Deputy Thompson testified there was a tree about 10 feet away from the Honda. The tree and ground were wet and covered with condensation, but appellant's clothes were completely dry and he appeared warm. Appellant did not explain why he decided to sleep on the wet ground instead of contacting his relatives in the house.
Deputy Thompson asked appellant if he would find anything sharp on him if he conducted a search. Appellant said he had a "rig" in his possession, which Thompson interpreted as a syringe. Thompson searched appellant and found a syringe with a needle in his jacket pocket. Thompson testified the plunger was pulled back, and there was some off-white liquid in the syringe. It was not filled to capacity. Appellant said the syringe possibly contained methamphetamine.
Deputy Thompson also interviewed Victoria Krauss (Krauss), appellant's half-sister, who was staying at the residence with her mother, her brothers, Billy and Richard, and her niece's family. Appellant did not live there. Krauss did not appear to be under the influence of alcohol or narcotics, and she spoke clearly and answered Thompson's questions. Krauss stated that she had been inside the house all night. However, she had seen the white Honda parked in front of the residence for about three days before the incident. She also saw appellant driving the car and "in possession of it for the last three days." Krauss stated she believed the car was stolen and she was going to call the authorities the next morning. Krauss went back inside the residence after she spoke with Thompson.
Deputy Thompson arrested appellant in the presence of his half-brother, Billy May, who was still detained and in handcuffs. Billy did not say anything when appellant was arrested, and did not protest when the white Honda was towed. No one stepped forward to claim ownership or protest as the Honda was towed.
On December 13, 2004, Megan Neely picked up her Honda from the tow yard, and had to pay $220 to recover it. The stereo and CD player were gone, there was a hole in the dashboard with exposed wires, and the plastic frame around the stereo compartment was damaged. Neely's personal items were gone, along with the registration and insurance papers. The front bumper was not damaged, but the front license plate was "crunched" in such as way that it was hard to read the license number. Neely testified the doors, handles, windows, and ignition were intact and not damaged in any way. Neely was able to place her key into the ignition and start the car.
Ms. Neely discovered several unusual items in the trunk that did not belong to her: half of an exercise bike, a pair of jeans, a broken tape deck, and someone else's pay stub. Neely gave the car to a friend, and left the pay stub in the trunk instead of giving it to the police. Neely testified she did not know appellant, Billy May, or Victoria Krauss, she had never been to their house on Canal Street, and she did not give anyone permission to take the car.
Deputy Thompson testified that a key was in the Honda's ignition when he recovered the car from Canal Street. Thompson testified that in his previous investigations in stolen vehicle cases, he had seen situations where modified or shaved keys were used as master keys to open the car doors and start the ignition without breaking anything. Thompson testified the key recovered from the Honda appeared to be worn, but it did not appear to be filed or have any of the normal type of modifications. Megan Neely examined this key and testified that it did not belong...
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