People v. Himed CA1/2

Filed 8/15/23 P. v. Himed CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A161997
v.
MUSSIE HIMED, (Sonoma County Super. Ct.
No. SCR–712835–3)
Defendant and Appellant.
Defendant Mussie Himed appeals from an order that he pay impound
and storage fees for a silver Chrysler van. Defendant contends the record
contains insufficient evidence that the vehicle impounded was used to commit
crimes for which he was convicted. We agree and reverse the order.
FACTUAL AND PROCEDURAL BACKGROUND
Early on the morning of February 8, 2018, defendant and four
confederates committed two home invasion robberies in Sonoma County.1
The previous day, defendant’s four confederates had flown to California
from Virginia to commit the home invasion robberies. Defendant picked
them up at San Francisco International Airport in a silver Chrysler van and
dropped them off at a Motel 6 in Santa Rosa. Later, defendant picked them
1 The facts of the offense are based on the preliminary hearing
transcript.
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up in the same silver van and took them to an apartment complex where
defendant picked up some guns and the group switched from the silver van to
a green van.
Defendant and his confederates used the green van to go to the two
houses they robbed. At the first location, one of the robbers (not defendant)
shot one of the victims. At the second location, defendant did not go into the
house, and two of the robbers shot and killed a man.
After the second home invasion robbery, the group drove to Vallejo.
Law enforcement located their vehicle by a “phone ping” of a cellphone taken
from the second house. Vallejo police conducted a traffic stop of the green
van, there was a high-speed chase, and the van crashed. Defendant and
three of his confederates were arrested that day.2 The green van (a Chevrolet
Astro) was towed to the Sonoma County Sheriff’s Office and processed for
evidence. Several long guns, packages of suspected marijuana, additional
firearms (some of the firearms were the ones the robbers used in the offenses
while other firearms were stolen from the homes), and additional items,
including a credit card that belonged to one of the robbery victims, were
found in the green van.
In November 2020, defendant and the prosecution reached a negotiated
disposition. Defendant pleaded guilty to second degree murder (Pen. Code,
§ 187) and six counts of residential robbery in concert (id., §§ 211, 213) and
admitted a principal was armed with a firearm (id., § 12022, subd. (a)(1)) as
to four of the robbery counts. In exchange, the prosecution agreed to a
2 The fifth robber was arrested in June of 2018.
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maximum sentence of 15 years to life and dismissal of the remaining
charges.3
In December 2020, the trial court sentenced defendant to 15 years to
life in state prison for murder and imposed concurrent terms for the
remaining counts pursuant to the negotiated disposition.
In January 2021, the prosecution requested reimbursement of $6,975 in
vehicle storage fees for a 2003 silver Chrysler Town and Country van stored
for 465 days (from March 1, 2018, to June 12, 2019). Defendant filed an
opposition to the request. Defendant argued, first, that the prosecution failed
“to demonstrate that the Chrysler at issue is in fact a vehicle at one time
possessed by [him]” and, second, that it made no showing the Chrysler was
“ ‘used as a means of committing a public offense’ ” (Veh. Code, § 22655.5,
subd. (a)).
At a hearing on the fee request, defense counsel argued that the
prosecution “has provided nothing to the court to substantiate the idea that a
Chrysler van seized is in fact the Chrysler van that was utilized by Mr.
Himed to pick people up from the airport.”
Evidence in the record showed the green Chevrolet Astro van (which
was used in the robberies) was released from impound storage on March 31,
2019. The trial court found there was no need for the prosecution to keep the
silver Chrysler van longer than the Astro van, but it found storing the silver
van until March 31, 2019, was reasonable. Therefore, the court ordered
defendant to pay storage and impound fees of $5,880 for vehicle storage
through March 2019.
3 Defendant had been charged with 28 counts, including one count of
kidnapping and multiple counts of false imprisonment by violence and
assault with a semiautomatic firearm.
3
Defendant timely filed a notice of appeal from the fee order.
DISCUSSION
Under Vehicle Code section 22655.5 (§ 22655.5), “[a] peace officer . . .
may remove a motor vehicle from public or private property” when the officer
has probable cause to believe “that the vehicle was used as the means of
committing a public offense” (id., subd. (a)). Section 22655.5 further
provides, “In any prosecution of the crime for which a vehicle was impounded
pursuant to this section, the prosecutor may request, and the court may
order, the perpetrator of the crime, if convicted, to pay the costs of towing and
storage of the vehicle . . . .” (Id., subd. (d).)
The parties agree that the prosecution bore the burden to prove a
factual basis for the fee request by a preponderance of the evidence. (See
Evid. Code, § 115 [“Except as otherwise provided by law, the burden of proof
requires proof by a preponderance of the evidence”].) The parties also agree
that we review the trial court’s order for abuse of discretion. This means the
trial court’s findings of fact are reviewed for substantial evidence, and “its
application of the law to the facts is reversible only if arbitrary and
capricious.” (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711–712.)
Defendant contends the record does not establish the impounded silver
Chrysler van was the van he drove to pick up his confederates at the airport
the day before they committed the home invasion robberies. He points out
that the record does not show the van he drove to the airport had the license
plate or vehicle identification number of the impounded vehicle and that he
never identified the impounded vehicle as the van he used to pick up the
other robbers.
Defendant’s contention has merit. We will assume for purposes of this
appeal that defendant’s silver Chrysler van was “used as the means of
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committing a public offense” (§ 22655.5, subd. (a)) when defendant used the
van to pick up his confederates, which, in turn, furthered their shared plan to
commit home invasions robberies in the area. But nothing in the record
shows the impounded vehicle was that van. There is no evidence, for
example, that the impounded Chrysler van was found near defendant’s
residence or that it contained items belonging to, or connected with,
defendant.4 Indeed, there is no evidence at all about where, when, or why the
vehicle at issue was impounded.
In short, the record lacks substantial evidence that the silver Chrysler
van for which the prosecution seeks impound fees was, in fact, impounded by
an officer who had probable cause to believe the vehicle was used to commit a
crime for which defendant was later convicted. (§ 22655.5, subds. (a), (d).)
Accordingly, we will reverse the fee order.
DISPOSITION
The order of February 1, 2021, that defendant pay $5,880 in vehicle
impoundment and storage fees is reversed.
4 This contrasts with the record evidence regarding the green Astro van
that also was impounded. At the preliminary hearing, one officer testified
(based on a confederate’s statements) that a green van was used for the home
invasion robberies, that the robbers went to Vallejo after the robberies, and
that they were involved in a high-speed chase with law enforcement in
Vallejo on February 8, 2018. Another officer testified that a green Astro van
was towed to the Sonoma County Sheriff’s Office that afternoon. The officer
photographed both the exterior of the impounded van, including its license
plate number, and items found inside the van, including firearms and indicia
of the robbery victims. This would have been sufficient evidence to support a
request of fees for the impound and storage of a green Astro van with the
same license plate number as the van impounded on the day of the robberies
and which contained evidence of the robberies. There was no similar
evidence linking the impounded silver Chrysler van to defendant or the
crimes of conviction.
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_________________________
Miller, J.
WE CONCUR:
_________________________
Stewart, P.J.
_________________________
Markman, J.*
A161997, People v. Himed
* Judge of the Alameda Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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