People v. Villeda
| Decision Date | 24 April 2017 |
| Docket Number | B270378 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. EFRAIN ENRIQUE VILLEDA et al., Defendants and Appellants. |
| Court | California Court of Appeals Court of Appeals |
Defendant Efrain Enrique Villeda's petition for rehearing is denied. The opinion filed on April 24, 2017, is modified as follows:
On page 19, line 12, insert the following paragraph:
Mr. Villeda argues, without citation to any legal authority on point, that his conviction in case No. LA039716 (2002) does not qualify as a prior separate prison term enhancement because the prosecution failed to prove the convictions in case Nos. LA063517 (2010) and LA043435 (2003) did not wash out. We disagree with that analysis. As our Supreme Court has held: (People v. Tenner (1993) 6 Cal.4th 559, 563; accord, People v. Abdullah (2016) 246 Cal.App.4th 736, 742.) Mr. Villeda was convicted of a felony in case No. LA039716. He was imprisoned as a result of that conviction. He completed that term of imprisonment between February 19, 2002, and May 9, 2003. He was paroled on May 9, 2003. On July 1, 2003, less than five years later, he committed a new felony offense for which a prison term was imposed and served in case No. LA043435. Case No. LA039716 qualified as a prior separate prison term for purposes of enhancement in the present case under section 667.5, subdivision (b). (People v. Tenner, supra, 6 Cal.4th at p. 563; People v. Abdullah, supra, 46 Cal.App.4th at p. 742.) That the conviction in case No. LA043435 (2003) was subsequently re-designated a misdemeanor does not change the fact that at the time Mr. Villeda committed the offense, it was a felony.
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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. PA083913)
APPEALS from judgments of the Superior Court of Los Angeles County, Cynthia L. Ulfig, Judge. Affirmed as modified and remanded.
Elana Goldstein, under appointment by the Court of Appeal, for Defendant and Appellant Efrain Enrique Villeda.
Theresa Ostermann Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant Antoinette Wizar.
Kamala D. Harris, Attorney General, Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney
General, Mary Sanchez and Alene M. Games, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury convicted defendants Efrain Enrique Villeda and Antoinette Renee Wizar of unlawfully driving or taking a vehicle. (Veh. Code, § 10851, subd. (a).) The jury also convicted Mr. Villeda of making criminal threats (Pen. Code, § 422, subd. (a))1 and Ms. Wizar of petty theft (§§ 484, subd. (a), 490.2). The trial court found Mr. Villeda had served five prior separate prison terms. (§ 667.5, subd. (b).) Mr. Villeda was sentenced to 8 years in state prison. As to Ms. Wizar, the trial court imposed and suspended a 42-month sentence. Ms. Wizar was placed on formal probation for 3 years. We affirm the judgments of conviction but remand for resentencing as to Mr. Villeda.
On July 11, 2015, Antonio Gonzalez's Chevy Suburban was stolen. His wife, Guadalupe Gonzalez, had parked the vehicle near her daughter's house. Ms. Gonzalez left the ignition key inside the unlocked Suburban. An hour later, the vehicle was missing. The Suburban contained paperwork reflecting Mr. Gonzalez's ownership of it. Neither Mr. nor Mrs. Gonzalez gave Mr. Villeda or Ms. Wizar permission to take or drive the car. Items Ms. Gonzalez had left in the vehicle, including two infant car seats, were missing upon its return.
Three days later, on July 14, 2015, defendants entered a CVS pharmacy. The pharmacy was two blocks from where the Suburban was stolen. Ms. Wizar was carrying a large reusable shopping bag. A store employee, Rene Tovar, noted the bag appeared to be empty. Mr. Tovar lost sight of Ms. Wizar. He reencountered her standing in an aisle. Her shopping bag was full. Surveillance videotape showed Ms. Wizar moving merchandise from the store's shelves into her bag. But the cameras did not capture the entire aisle. And there was no videotape of Ms. Wizar putting anything into her clothing. The surveillance cameras also captured Mr. Villeda taking items off the shelves. John Medina, the store manager, saw what looked like boxes concealed under Mr. Villeda's shirt. The shape andsize of the boxes made Mr. Medina think they contained blood pressure monitors worth $100 to $175 each.
After Mr. Tovar confronted her, Ms. Wizar removed items from her clothing. Mr. Tovar testified: "[S]he started taking stuff out of her pants, which I didn't even know it was there, and she just handed it to me." Mr. Tovar told an investigating officer, Detective Elliott Kane, that Ms. Wizar removed merchandise from her pants and also from underneath her shirt. When Mr. Tovar started yelling for his manger, Mr. Medina, Ms. Wizar emptied her shopping bag onto the floor. The bag had contained 25 to 30 items, including cosmetics, hair products and men's shaving merchandise. Mr. Tovar testified all of the goods belonged to CVS.
According to Mr. Tovar, Ms. Wizar never said she intended to pay for the items she had taken from the store's shelves. Mr. Medina was less certain. Mr. Medina did not remember whether Ms. Wizar had offered to pay for the items. But he vaguely remembered Ms. Wizar saying she had money. Mr. Medina further testified Ms. Wizar may have had money in her hand at the time she made the statement.
Ms. Wizar exited the store but returned briefly. She picked something up from the floor and left again. She got into the driver's seat of the stolen Suburban and drove away. Meanwhile, Mr. Medina had called an emergency operator. He started to read the Suburban's license plate number to the operator. As he did so, Mr. Villeda began yelling at Mr. Medina. Mr. Medina testified, "[Mr. Villeda] told me [to] get off the fucking phone before he fucking kills me." Mr. Medina also recalled: At trial, Mr. Medina could not recall Mr. Villeda sayinganything about the license plate. But he told Detective Kane that Mr. Medina had said: Mr. Medina was walking toward the Suburban and reading its license plate number to the emergency operator when Ms. Wizar drove away. Although Mr. Villeda had appeared to be waiting for Ms. Wizar outside the store, Ms. Wizar drove off without him.
The following day, July 15, 2015, Officer Steve Norris was at a Chevron gas station located approximately four miles from the CVS pharmacy. Officer Norris saw Ms. Wizar exit the Suburban's rear passenger door and enter the gas station's market. While in the market, Ms. Wizar was detained on suspicion of theft. As she was being detained, a male Hispanic, later identified as Frank Sarabia, got out of the Suburban. He briefly entered the store and then left. He walked back to the Suburban, pretended to pump gas into it, then reentered the vehicle on the front passenger side.
Officer Steven Martinez determined the Suburban had been stolen. Officer Norris exited the store to observe the vehicle while Officer Martinez telephoned for back up. Just as the Suburban pulled out of the gas station, a police helicopter appeared over head and pursued it. Mr. Villeda was arrested shortly thereafter. He had been driving the vehicle. There were 67 items inside the Suburban with sales stickers attached. There were no purchase receipts for themerchandise. The goods included cosmetics, shampoo, tools and dog leashes.
Following his arrest, Mr. Villeda told Officer Kane he had stolen some deodorant from the CVS pharmacy and concealed it underneath his shirt. Mr. Villeda denied threatening Mr. Medina. Mr. Villeda also said he had purchased the Suburban several days earlier. However, he was not able to name the seller.
The conviction under Vehicle Code section 10851, subdivision (a), required proof Ms. Wizar had a specific intent to permanently or temporarily deprive the owner of title to or possession of the Suburban. (Veh. Code, § 10851, subd. (a); People v. Moon (2005) 37 Cal.4th 1, 26; People v. Barrick (1982) 33 Cal.3d 115, 134.) Ms. Wizar challenges the sufficiency of the evidence she had such specific intent. We find substantial evidence supported the jury's verdict.
The applicable standard of review is as follows: " ...
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