People v. Osunapetri CA2/8

Filed 9/3/21 P. v. Osunapetri CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B306083
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA121155)
v.
JIMMY OSUNAPETRI
Defendant and Appellant.
APPEAL from the judgment of the Superior Court of
Los Angeles County. Steven D. Blades, Judge. Affirmed.
Carolyn D. Phillips, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Scott A. Taryle and David A. Voet, Deputy
Attorneys General, for Plaintiff and Respondent.
_________________________
INTRODUCTION
Appellant challenges his conviction of two counts of
unlawfully taking or driving a motor vehicle in violation of
Vehicle Code section 10851, subdivision (a). On appeal, he
argues the evidence was insufficient to support a conviction for
taking or to support more than one post-theft driving offense. He
asks us to vacate the second count.
We disagree with appellant and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In an Information filed June 25, 2019, appellant Jimmy
Osunapetri was charged with two counts of fleeing a pursuing
peace officer’s motor vehicle while driving recklessly—Counts 1
and 2—in violation of Vehicle Code1 section 2800.2, and two
counts of unlawfully taking or driving a vehicle—Counts 3 and
4—in violation of section 10851, subdivision (a). The information
further alleged appellant had served four prior prison terms (Pen.
Code, § 667.5, subd. (b)) and had sustained a prior strike
conviction that was also a serious and/or violent felony (Pen.
Code, §§ 666.5, 667, subd. (d), 667.5, subd. (c), 1170, subd. (h), &
1170.12, subd. (b)). Count 3 was alleged as a felony pursuant to
Penal Code section 667.5 based on appellant’s alleged prior
conviction for violating section 10851.
Appellant entered pleas of not guilty to all four counts. He
admitted the prior conviction and four prior prison term
allegations.
On August 26, 2019, trial by jury commenced.
1 Further undesignated statutory references are to the
Vehicle Code.
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I. Trial
The testimony and evidence at trial established the
following:
Andy Villa was the registered owner of a 1997 black Honda
Accord. He gave his son Andrew permission to drive the car on
an ongoing basis. Andrew maintained possession of the car and
was given the only key to the car. No one else was given
permission to drive the car.
Between 5:00 p.m. and 7:00 p.m. on May 26, 2019, Andy
visited Andrew, who was staying at a hotel. Andy noticed the
Honda Accord “was parked in a good area” when he “went over to
the motel to go talk . . . and hang out for a bit . . . . That was the
last time I saw it.”
Early in the morning of May 27, 2019, Andy received a call
from his son who was “pretty frantic, and told [him] the car was
gone.” When Andy arrived on scene between 8:00 and 10:00 a.m.,
Andrew had already reported the theft to the police.
Later that day, at approximately 1:52 p.m., Rialto Police
Department Officer Adam Acuna was in a patrol car when he
observed a black Honda Accord drive past him in the opposite
direction. Officer Acuna saw the individual in the driver’s seat
and recognized him as appellant, based on “multiple prior
contacts over the last 11 and a half years.” He began to follow
appellant in the Honda Accord, and activated his red and blue
lights to conduct a traffic stop after observing appellant “bl[o]w
through the stop sign” at a three-way traffic stop. Officer Acuna
looked up the vehicle license plate and learned the “vehicle had
been reported stolen.” He notified Baldwin Park dispatch and
activated his patrol car’s sirens.
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Officer Acuna observed appellant driving at an “excessive
speed in a residential area,” approximately 60 miles per hour in a
25 mile per hour zone. Officer Acuna observed children playing,
people barbecuing, and families out as it was Memorial Day
weekend. Appellant was driving into opposing traffic lanes at
excessive speed, causing Officer Acuna’s sergeant and watch
commander to terminate the pursuit as other people’s safety and
lives were in danger.
At 7:22 p.m. that evening, Baldwin Park Police Officer
Robert Larivee, driving a patrol vehicle, saw a black Honda
Accord “without a front license plate” matching the description of
the vehicle he “was informed was involved in a vehicle pursuit
earlier in the day.” As Officer Larivee approached the vehicle, he
identified the driver as appellant based on previous contacts with
him. Officer Larivee notified the Baldwin Park Police dispatch
about the “stolen vehicle and that the driver was Jimmy
Osunapetri, who was an outstanding subject from earlier in the
day.” He then activated his car’s overhead red and blue lights to
conduct a traffic enforcement stop. Appellant did not stop the car
and accelerated, leading Officer Larivee to activate his sirens and
start a pursuit.
While following appellant, Officer Larivee witnessed him
commit many moving traffic violations, including driving through
a red light multiple times, failing to come to a stop at a stop sign
multiple times, driving 50 miles per hour in a 25 mile per hour
speed zone. There were many cars in the busy intersections and
many pedestrians along the sidewalks in the residential areas.
At one point, appellant was traveling at such a fast speed that
when he hit[a significant dip in the intersection, his vehicle
completely went airborne, so all four wheels lifted off the ground.
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When the car landed back on the road, the collision of the
undercarriage of the vehicle and road caused sparks. At some
point appellant was pursued by six police vehicles.
Baldwin Park Police Officer Stephan Holguin was one of
the officers who responded to Officer Larivee’s call for assistance,
joining the pursuit. Officer Holguin recognized the driver of the
Honda Accord as appellant, with whom he had approximately
four prior contacts.
The officers then followed appellant who took a “dirt access
road that leads into Starline Nursery [which] is private property,
and [was] closed off by . . . a double swinging gate.” Appellant
“drove through the secured gate” which “literally exploded open.”
When appellant reached a dead end on the dirt access road, he
stopped, parked the vehicle, and began running away. When he
reached Judith Street, appellant stopped running and began to
walk, at which point Officer Holguin exited his vehicle,
unholstered his department-issued firearm and ordered him onto
the ground. Appellant was then arrested.
While inspecting the Honda Accord, Officer Larivee
“look[ed] for . . . any type of interior stripping [because] most of
the time when people do steal cars they’ll strip the head units or
radios out because they can resell that.” Officer Larivee saw
“there was minor stripping and that the stereo had been partially
removed.” Additionally, upon checking the ignition, he noticed
“there was a key actually still lodged in the ignition port, so [he]
went to remove the key and had a pretty difficult time actually
removing the key from the ignition.” Once he removed the key,
he examined it, and noted it had been shaved or altered. Officer
Laravee testified that generally, for older model cars such as a
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1997 Honda Accord, the ignition port begins to wear down so the
cars can be started with a shaved key.
II. Verdict and Sentencing
On August 28, 2019, a jury found appellant guilty of all
four counts.
On April 16, 2020, appellant was sentenced to state prison
for an aggregate term of 10 years eight months. The court
imposed a $40 court security fee for each count (totaling $160)
per Penal Code section 1465.8, subdivision (a)(1), a $30 criminal
conviction assessment for each count (totaling $120) per
Government Code section 70373, a $300 restitution fine per
Penal Code section 1202.4, subdivision (b), and a $300 parole
restitution fine per Penal Code section 1202.45, which was
stayed.
Appellant timely appealed.
DISCUSSION
Appellant argues there was “no evidence of taking and
evidence of only one driving.” He argues he could have been
convicted of only one section 10851 violation, not two, and
contends that his conviction and sentence on one of those counts
must be vacated.
When reviewing an appeal challenging the sufficiency of
the evidence to support a criminal conviction, the appellate court
“must review the whole record in the light most favorable to the
judgment below to determine whether it discloses substantial
evidence such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.” (People v. Johnson
(1980) 26 Cal.3d 557, 562.) Substantial evidence must be “ ‘of
ponderable legal significance . . . reasonable in nature, credible,
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and of solid value.’ ” (Id. at p. 576.) Applying this test to the
present case, we conclude substantial evidence supports two
violations of section 10851.
Appellant was charged in Counts 3 and 4 with violating
section 10851, subdivision (a), which provides it is a crime for any
person to drive or take “a vehicle not his or her own, without the
consent of the owner thereof, and with intent either to
permanently or temporarily deprive the owner thereof of his or
her title to or possession of the vehicle, whether with or without
intent to steal the vehicle.” (§ 10851, subd. (a).)
The “taking and the driving of a vehicle could constitute
separate and distinct violations of section 10851[, subdivision]
(a), at least where . . . the driving was not part of [a] ‘ “continuous
journey away from the locus of the theft.” ’ ” (People v. Garza
(2005) 35 Cal.4th 866, 880, italics omitted.) Thus, a “defendant
who steals a vehicle and then continues to drive it after the theft
is complete commits separate and distinct violations of section
10851[, subdivision] (a).” (Ibid.)
Here, the Honda Accord was stolen sometime between
7:00 p.m. on May 26, 2019 and 8:00 a.m. the next morning on
May 27, 2019. Appellant was seen driving the stolen vehicle
twice on May 27, 2019—once at 1:52 p.m. when the first police
pursuit began and again at 7:22 p.m. when the second police
pursuit began.
Appellant argues “no one saw the car being taken,” “no one
saw who took the car” and “no evidence indicated how appellant
came into possession of the Honda Accord.” Even so, “possession
of recently stolen property is so incriminating that to warrant
conviction, there need only be, in addition to possession, slight
corroboration in the form of statements or conduct of the
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defendant tending to show his guilt.” (People v. McFarland
(1962) 58 Cal.2d 748, 754.) Appellant was found to be in
possession of the stolen vehicle at two different time periods on
May 27, 2019, including when he was apprehended by police.
Appellant’s conduct and reaction to Officer Acuna
activating his patrol car’s red and blue lights behind the Honda
Accord was to “blow through the stop sign” and accelerate away.
Similarly, when appellant was pursued the second time on May
27, 2019, he continued to drive away and flee from police until he
reached a dead end. At this point, appellant parked the vehicle
and once more fled—this time, on foot. Appellant’s possession of
the stolen property, plus his flight in the face of impending
investigation, made a sufficient case against him. (See People v.
Wells (1960) 187 Cal.App.2d 324, 329 [“Flight of a defendant . . .
is always a circumstance to be taken into consideration by the
jury with the other facts proven in the case, in determining the
guilt or innocence of a defendant.”] A rational trier of fact could
have inferred that appellant took the vehicle he was driving
without the owner’s consent, based upon the circumstances of his
flight from the police during both pursuits.
When appellant was apprehended, Officer Larivee
examined the key in the ignition of the stolen vehicle and noted it
had been shaved or altered. There was testimony by Officer
Larivee that generally older model cars such as a 1997 Honda
Accord can be started with a shaved key. Officer Larivee also
noted there was “minor stripping and that the stereo had been
partially removed.” Appellant’s possession of the stolen vehicle,
flight from police, coupled with the shaved key that he used in
the ignition of the car (see People v. O’Dell (2007) 153
Cal.App.4th 1569, 1577 [evidence of “tools commonly used by
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vehicle thieves”], constitutes substantial evidence supporting
both Counts 3 and 4.
Based on the foregoing, we find there was substantial
evidence from which a rational jury could conclude beyond a
reasonable doubt that appellant was guilty of unlawfully taking
the car and also guilty of unlawful post-theft driving of the same
car. We affirm.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, J.
We concur:
GRIMES, Acting P. J.
WILEY, J.
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