People v. Cervantes CA4/3 ( 2024 )

Filed 10/16/24 P. v. Cervantes CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G063440
v. (Super. Ct. No. 21NF0467)
DANIEL CERVANTES, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County,
Michael A. Leversen, Judge. Affirmed with directions.
Gerald J. Miller, under appointment by the Court of Appeal, for
Defendant and Appellant.
No appearance for Plaintiff and Respondent.
In this criminal appeal, appointed counsel for Daniel Cervantes
filed a brief under People v. Wende (1979) 25 Cal.3d 436, set forth the facts of
the case, and asked us to review the entire record. Pursuant to Anders v.
California (1967) 386 U.S. 738, counsel identified four potential issues to
assist in our independent review. Cervantes filed his own brief asserting
similar issues for consideration. We have independently reviewed the record
and considered the potential issues raised by Cervantes and his counsel. We
have not found an arguable issue on appeal. But we will remand the matter
to permit the trial court to correct a clerical error in the abstract of judgment.
In all other respects, we affirm the judgment.
FACTS
Around 10:30 p.m. on February 8, 2021, R.D., a delivery driver
for a medical marijuana business, was making her last delivery to an address
at Katella Avenue in Anaheim. After she parked and exited her delivery van,
a man approached her. The man posed as her delivery customer, grabbed her
wrist, and said he needed her keys. The man pointed a handgun at her
stomach. She gave him the keys, and the man got into the van. She asked for
her phone, and the man threw it out the van before driving away.
R.D. called 911. The van, which had a GPS tracker, was tracked
to an address in Fullerton, about a few miles from the site of the carjacking,
and a police helicopter was dispatched to the area. The tactical flight officer
in the helicopter spotted a van matching the description of, and later
confirmed to be, the stolen van.1 The van was on the street near an SUV as
police vehicles approached. The tactical flight officer saw an individual, later
identified as Cervantes, flee the van. A police vehicle followed and stopped
1
The video footage from the helicopter was also played at trial.
2
the SUV. The driver of the SUV was a woman who identified herself as
Denise Cervantes-Sandoval.
A different police vehicle followed Cervantes on the ground, as
the helicopter followed Cervantes from above. When Cervantes ran into an
apartment or condominium complex, police officers, along with a police dog,
gave chase on foot. Cervantes “hunkered down” in a patio inside the complex.
As an officer was announcing the presence of police and the K-9, the officer
“saw a head pop up over the wall” and quickly disappear. Cervantes then
fled, and the officer and the police dog ran after him. Once released, the
police dog caught up to Cervantes and bit onto his leg.
An ambulance transported Cervantes, accompanied by a police
officer, to the hospital. Cervantes was wearing a blue Dodgers t-shirt.
Another police officer took R.D. to the hospital to identify Cervantes. While in
the backseat of the police vehicle, R.D. saw Cervantes exiting an ambulance,
about 15 to 20 feet away, and identified him as the man who stole the van.
At the complex where Cervantes had been apprehended, the
police recovered a pair of gray gloves, a gray hooded sweatshirt, a cell phone,
and a black gaiter mask, described as “an elongated face mask,” from an
enclosed patio area. Cervantes’s DNA was found on these items.
From the SUV that Cervantes-Sandoval had been driving, the
police recovered another cell phone. Data extracted from the recovered cell
phones showed several calls placed between them on the night of the
carjacking. The extracted data also revealed text messages sent that night,
including one referring to a Fullerton address near where the stolen van was
spotted, and web searches referring to the medical marijuana company that
R.D. worked for.
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Before the van was stolen, it contained, among other things, a
little over $1,000 in cash from the day’s deliveries, medical marijuana
products, and R.D.’s personal belongings, including about $200 in cash tips.
The van also had a camera installed inside, near the front windshield. When
the police returned R.D. to the van that night, the cash and camera were
missing.
At trial, R.D. described the carjacker as Hispanic, in his mid to
late twenties, about five feet and seven or eight inches tall, and wearing all
black, with a hoodie and a COVID-type mask, and she pointed to Cervantes
as the carjacker. When asked about her identification of Cervantes at the
hospital, R. D. testified that she “could see the eyebrows and the eyes” and
that she “recognized him immediately because that’s all [she] could see.”
The operative amended information charged Cervantes with
carjacking (Pen. Code, § 215, subd. (a); count 1)2 and resisting and
obstructing an officer (§ 148, subd. (a)(1); count 2). It also alleged Cervantes
personally used a firearm during the carjacking (§ 12022.53, subd. (b)) and he
had suffered a prior conviction that constituted both a serious and violent
felony, or “strike” (§§ 667, subds. (d), (e)(1), 1170.12, subds (b), (c)(1)), and a
serious felony (§§ 667, subd. (a)(1), 1192.7).
A jury found Cervantes guilty of both counts and found he
personally used a firearm during the carjacking. The trial court found the
prior conviction allegations to be true. The court sentenced Cervantes to a
total of 10 years in prison, representing 10 years on count 1 (the middle term
of five years, doubled for the prior “strike”) and 364 days in county jail on
2
All further statutory references are to the Penal Code unless
otherwise indicated.
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count 2 (with credit for time served, resulting in a terminal disposition). The
court struck the 10-year enhancement for personal use of a firearm
(§ 12022.53, subd. (b)) and the five-year enhancement for a prior conviction
(§ 667, subd. (a)) for sentencing purposes only. Cervantes timely appealed.
DISCUSSION
To facilitate our independent review, appointed counsel identified
four potential issues for consideration. First, was the evidence sufficient to
support the carjacking conviction? Second, was the evidence sufficient to
support the true finding on the firearm enhancement? Third, did the trial
court err by not selecting the lower term for the carjacking conviction due to
Cervantes’s age at the time of the offense? Fourth, did the court err by
refusing to instruct on theft and receipt of stolen property, which are lesser
related offenses of carjacking? Cervantes filed his own brief, arguing the
evidence was insufficient to support the carjacking conviction—the same
argument as the first potential issue raised by counsel.
Generally, an arguable issue is one that has “a reasonable
potential for success” and, if successful, will result in either reversal or
modification of the judgment. (People v. Johnson (1981) 123 Cal.App.3d, 106,
109.) We have independently reviewed the entire record in this case and have
found no arguable issue. We address each potential issue suggested by
appointed counsel and Cervantes below.
First, the evidence was sufficient to support each element of the
carjacking conviction. On a challenge to the sufficiency of the evidence, “we
review the entire record in the light most favorable to the judgment to
determine whether it contains substantial evidence—that is, evidence that is
reasonable, credible, and of solid value—from which a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt.” (People v.
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Albillar (2010) 51 Cal.4th 47, 60.) We “‘neither reweigh[ ] evidence nor
reevaluate[ ] a witness’s credibility.’” (Ibid.) Our power “‘begins and ends with
the determination as to whether there is any substantial evidence,
contradicted or uncontradicted, which will support the finding of fact.’”
(People v. Lagunas (2023) 97 Cal.App.5th 996, 1007 (Lagunas).)
At trial, R.D. testified Cervantes grabbed her wrist, pointed a
gun at her, demanded the van keys, and drove off in the van. This testimony
satisfies all the elements of carjacking—“that (1) the defendant took a vehicle
that was not his or hers (2) from the immediate presence of a person who
possessed the vehicle or was a passenger in the vehicle (3) against that
person’s will (4) by using force or fear and (5) with the intent of temporarily
or permanently depriving the person of possession of the vehicle.” (People v.
Magallanes (2009) 173 Cal.App.4th 529, 534; see also People v. Reed (2018) 4
Cal.5th 989, 1006 [“[I]dentification of [a] defendant by a single eyewitness
may be sufficient to establish, beyond a reasonable doubt, defendant’s
identity as perpetrator of the crime charged”].) Although the prosecution
presented much more evidence at trial tying Cervantes to the carjacking,
R.D.’s testimony alone is sufficient to support the conviction.
In his supplemental brief, Cervantes contends “there was a lack
of supportive evidence” for a carjacking conviction with a firearm
enhancement because there was no evidence the gun, the money from the
van, and the van’s camera were found on or near him; there was no evidence
“a firearm was used at all other than the victim believing to have seen one”;
and “the victim identified [him] by [his] eyes but never specified exactly what
was recognizable about them.” But these contentions simply attack the
weight of the evidence and the credibility of witnesses. It is the trier of fact—
not the reviewing court—that determines the credibility of witnesses and
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evaluates the strength or weakness of identification evidence. (People v.
Smith (2005) 37 Cal.4th 733, 739.)
Second, because the evidence was sufficient to identify Cervantes
as the carjacker, it was also sufficient to support the true finding on the
firearm enhancement.
Third, the trial did not abuse its discretion in selecting the
midterm for the carjacking conviction, despite the fact Cervantes was
25 years old at the time of the offense. If a defendant was a youth when he or
she committed the offense, the trial court shall impose the lower term “unless
the court finds that the aggravating circumstances outweigh the mitigating
circumstances that imposition of the lower term would be contrary to the
interests of justice.” (§ 1170, subd. (b)(6).) Aggravating factors include that
“[t]he crime involved great violence, great bodily harm, threat of great bodily
harm”; “[t]he defendant was armed with or used a weapon at the time of the
commission of the crime;” and “[t]he manner in which the crime was carried
out indicates planning, sophistication, or professionalism.” (Cal. Rules of
Court, rule 4.421(a)(1), (2), (8).) The party attacking the sentence bears the
burden “‘“to clearly show that the sentencing decision was irrational or
arbitrary.”’” (People v. Carmony (2004) 33 Cal.4th 367, 376.)
Here, the trial court expressly stated it considered Cervantes’s
“age, social history, future prospects for productive life,” as well as “the
general objectives of sentencing, including protection of society, deterrence
from future criminal conduct, sentencing uniformity and ensuring that the
sentence indicated herein is commensurate with the defendant’s behavior in
the current case combined with [his] record.” The court further noted the
carjacking “was a well planned out crime.” On this record, Cervantes cannot
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show the court abused its discretion in imposing the midterm on the
carjacking conviction.
Fourth, the trial court did not err by refusing to instruct on the
lesser related offenses of theft and receipt of stolen property. “[W]ithout the
consent of the prosecutor, a trial court has no obligation to instruct a jury on
any lesser related offenses.” (Lagunas, supra, 97 Cal.App.5th at p. 1008,
citing People v. Birks (1998) 19 Cal.4th 108, 136; see also People v. Ng (2022)
13 Cal.5th 448, 557 [trial court cannot instruct on lesser related offenses
requested by defense over prosecution’s objection].) Here, after the close of
evidence and during a discussion on jury instructions, defense counsel stated
to the trial court that the prosecutor was “not going to include lesser related
offenses.” Although defense counsel requested the instructions, he
acknowledged “defense is not entitled to those, and the court doesn’t have to
give those sua sponte.” The court ultimately refused to instruct on lesser
related offenses. Given the prosecutor’s position against including lesser
related offenses, the court did not err in refusing to instruct on them.
Finally, although the parties did not raise the issue, we note
omissions in the abstract of judgment that need to be corrected. Here, the
jury found true the personal use of a firearm allegation, and the trial court
found true the prior conviction allegations. But “for the purpose of
sentencing” only, the court struck their respective enhancements.
(§§ 12022.53, subd. (b), 667, subd. (a).) The abstract, however, does not reflect
these findings and the court’s decision to strike the punishment for the
enhancements. Because an “abstract must summarize the judgment that was
imposed” (People v. Hong (1998) 64 Cal.App.4th 1071, 1083), we direct the
court to prepare a corrected abstract of judgment (People v. Mitchell (2001) 26
Cal.4th 181, 185–186).
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DISPOSITION
The matter is remanded to the trial court with instructions to
correct the abstract of judgment, filed January 3, 2024, to reflect the
following: (1) on page 1, section 2, state that punishment for the
enhancement under section 12022.53, subdivision (b), for count 1 is stricken;
and (2) on page 1, section 3, state that the punishment for the enhancement
under section 667, subdivision (a), is stricken. The court is further instructed
to prepare an amended abstract of judgment and forward a certified copy to
the Department of Corrections and Rehabilitation. In all other respects, the
judgment is affirmed.
DELANEY, J.
WE CONCUR:
O’LEARY, P. J.
MOORE, J.
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