PEOPLE v. JENKINS

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Court of Appeal, First District, Division 2, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Kirk W. JENKINS, Defendant and Appellant.

No. A036427.

Decided: December 16, 1987

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., John H. Sugiyama, Asst. Atty. Gen., David D. Salmon, Supervising Deputy Atty. Gen., John W. Runde, Deputy Atty. Gen., San Francisco, for plaintiff and respondent. Frank O. Bell, Jr., State Public Defender, William T. Lowe, Deputy State Public Defender, San Francisco, for defendant and appellant.

Kirk W. Jenkins appeals from a judgment entered on a jury verdict finding him guilty of auto theft.  (Veh.Code, § 10851.)

Factual Background

On the night of June 6, 1986, John Casey was employed as a bartender at the “Chatterbox,” a bar located in Clearlake, Lake County.   Casey worked his regular shift from 6 p.m. to 2 a.m., parking his 1984 Mercury Cougar automobile “right in front of the Chatter Box where I always parked it.”   Casey routinely parked his car in front of the establishment so that he would be able to keep an eye on it while working.

Earlier that evening, Casey loaned his car to a colleague who later returned it to its usual spot in front of the building.   However, Casey forgot to ask that the keys be returned and they were left in the ignition.

At approximately 11:30 p.m. that evening, Casey saw a man he later identified as appellant enter the driver's side of his car.   Casey ran out of the bar and yelled “Hey, where are you going in my car?”   The driver then pulled out and drove away.   Casey noticed another person in the passenger seat.

Casey had never seen appellant before that evening, and had not given him permission to use his car.   Immediately after the car was driven away, Casey reported the incident to the police.

Lisa Laughon also witnessed the incident.   Earlier that evening, Laughon spoke briefly with appellant, who she positively identified at trial.   Laughon had been standing outside the entrance to the bar while waiting for a friend when appellant approached her and initiated a conversation.   Shortly thereafter Laughon heard the car start and saw it pull out into the street.   Laughon recognized the driver as appellant, the man with whom she had just spoken.   Later that evening, at the request of the police, Laughon positively identified appellant as the man she had spoken with and whom she saw drive away in Casey's car.

The car was recovered approximately 15–30 minutes after it was taken.   It was located about four blocks from the Chatterbox.   There was no damage or alteration to the car.   The car was found in the middle of the street, “parked in a manner like you would pull up to a stop sign and not proceed any further and simply stop and get out of the car.”   The keys were not in the car.   Casey was taken to the location and identified the car as his own.

After the car was discovered, the police questioned appellant as he stood in the front yard of a residence situated approximately 100 yards from where the car had been recovered.   Appellant was placed under arrest at that time for vehicle taking.

Argument

Appellant argues on appeal that the giving of CALJIC No. 17.12 (1984 Revision) improperly restricted the jury's consideration of the lesser included offense of joyriding and that the sentencing court erred in failing to consider applicable mitigating circumstances in determining appellant's sentence.

A. Jury Instruction

The jury was instructed in this case in the terms of CALJIC No. 17.12.  That instruction requires that the jury unanimously agree that defendant is not guilty of the charged offense before finding him guilty of any lesser offense.1  Here, appellant was charged with auto theft.   Joyriding was a lesser included offense.

CALJIC No. 17.12 was drafted by the Committee on Standard Jury Instructions in an attempt to conform to the instruction procedures recommended by Justice Mosk in Stone v. Superior Court (1982) 31 Cal.3d 503, 183 Cal.Rptr. 647, 646 P.2d 809.  (Comment to CALJIC No. 17.12 (1984 Rev.).)   Appellant argues, however, that the instruction is nevertheless inconsistent with Stone.

 The Supreme Court held in Stone that the trial court is constitutionally obligated to afford the jury the opportunity to render a partial verdict of acquittal of the greater offense when it is deadlocked only as to the lesser offense.  (Stone v. Superior Court, supra, 31 Cal.3d at p. 519, 183 Cal.Rptr. 647, 646 P.2d 809.)   To guide the trial courts in fulfilling this obligation, the court prescribed the following procedure:  “When a trial judge has instructed a jury on a charged offense and on an uncharged lesser included offense, one appropriate course of action would be to provide the jury with forms for a verdict of guilty or not guilty as to each offense.   The jury must be cautioned, of course, that it should first decide whether the defendant is guilty of the greater offense before considering the lesser offense, and that if it finds the defendant guilty of the greater offense, or if it is unable to agree on that offense, it should not return a verdict on the lesser offense.”  (Emphasis added.)  (Id. at p. 519, 183 Cal.Rptr. 647, 646 P.2d 809.)2

 Appellant argues that CALJIC No. 17.12 is improper in that it precludes the jury from deliberating on lesser offenses until it has reached a unanimous verdict as to the greater offense.   In short, appellant contends that the instruction dictates the deliberation agenda.   We disagree.   The text of CALJIC No. 17.12 does not require that the jury deliberate on the various offenses in any particular order, it requires only that the jury find the defendant not guilty of the greater offense before it may find him guilty of any lesser offense.

Indeed, the intent of CALJIC No. 17.12 is specifically stated in the official comment to the instruction.   The comment advises that:  “The language used in this instruction has been drafted to conform with the two alternatives permitted by Stone without precluding the jury from deliberating on the charged and lesser included offenses in whatever order they wish.   The jury is merely precluded from returning a verdict on a lesser offense without also returning a verdict on the greater offense[s].”  (Emphasis in original.)  (Comment to CALJIC No. 17.12.)   It is clear from the official comment that the instruction is intended only to order the rendering of verdicts, and is not intended to order the jury's deliberations as to those verdicts.   In our judgment the language of the instruction is consistent with the intent expressed in the comment.   Appellant urges that CALJIC No. 17.12 is nevertheless susceptible to what he interprets as the erroneous construction that the jury must order its deliberations.   Appellant's argument lacks merit.   Assuming that it would be improper to order the jury's deliberations, the instruction is not reasonably susceptible to such a construction.   CALJIC No. 17.12 specifies that the jury “must unanimously agree that the defendant is not guilty of the greater offense before [it] may find defendant guilty or not guilty of any lesser offense.”  (Emphasis added.)   The word “find” has been defined as “to announce a conclusion, as the result of judicial investigation, upon a disputed fact or state of facts.”  (Black's Law Dict. (4th ed. 1968) p. 758, col. 2.)   Thus, the language of the instruction is concerned only with the ordering of the jury's verdicts, and is not reasonably susceptible to a contrary construction.

The issue raised by appellant here has been subjected to appellate scrutiny in a recent and conceptually related case dealing with the requirement that the jury unanimously acquit the defendant of the greater offense before convicting him or her of any lesser offense.   In People v. Zwiers (1987) 191 Cal.App.3d 1498, 237 Cal.Rptr. 123, the “acquittal first” instruction contained in CALJIC No. 17.10 (1984 Revision) was upheld where the crime of burglary and the lesser included offense of attempted burglary were involved.   As Justice Barry–Deal of this district addressing a constitutional challenge, commented:  “The instruction does not compel the jury to adopt an all-or-nothing approach to the issue of guilt, as appellant suggests;  the jury knows that it may convict a defendant of a lesser offense if it acquits him or her of the greater offense․”  (People v. Zwiers, supra, 191 Cal.App.3d at p. 1506, 237 Cal.Rptr. 123.)

 Similarly, although CALJIC No. 17.12 directs the jury to enter a non-guilty verdict on the greater offense before it renders a verdict on the lesser offense, it does not preclude the jury from considering all relevant evidence to both offenses.   That is, all lesser-included offenses necessarily include elements necessary to the greater offense.   In determining whether all essential elements for a guilty verdict on the charged offense are present, the jurors, by necessity, review evidence of the lesser-included offense.   It is only when the jury cannot find a necessary element for the greater offense, thus requiring a non-guilty verdict on the charged offense, that the jury may render a guilty verdict on the lesser offense.   Thus, the giving of CALJIC No. 17.12 does not restrict consideration of the lesser offense;  it merely delineates a logical and natural sequence for the jury to follow when all the evidence has been discussed.

 Aside from the issue of the form of the instruction given, appellant also argues that the trial court made misleading and prejudicial remarks to the jury with respect to its deliberations.   After less than an hour of deliberation, the jury sent the following note to the court:  “Need clarification of first obligation [ (decision) ].   When if do we consider joyriding?   Clarify intent.   Distinction between two charges.”   In response, the judge told the jury:  “Now, I am going to read back—the first instruction I am going to read back deals with how you approach—the order in which you approach your decision.   In other words, when you may consider the lesser offense.”  (Emphasis added.)   The judge then re-instructed the jury in the terms of CALJIC No. 17.12.

Appellant argues that the judge's remarks, given together with CALJIC No. 17.12, were improper.   Appellant reasons that such remarks had the effect of unfairly influencing the jury's deliberations by restricting its consideration of the lesser offense.

We disagree.   The court's choice of words is in fact consistent with the first procedure prescribed in Stone.   Despite appellant's interpretation of Stone, the language of that opinion is unequivocal that trial courts may in fact restrict the jury's deliberation by requiring a unanimous verdict of acquittal before it may consider lesser offenses.   It specifically states:  “The jury must be cautioned, of course, that it should first decide whether the defendant is guilty of the greater offense before considering the lesser offense, and that if it finds the defendant guilty of the greater offense, or if it is unable to agree on that offense, it should not return a verdict on the lesser offense.”  (Stone v. Superior Court, supra, 31 Cal.3d at p. 519, 183 Cal.Rptr. 647, 646 P.2d 809.)   The trial court and this court is bound by the Supreme Court holding in Stone.  (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 20 Cal.Rptr. 321, 369 P.2d 937.)

B. Sentencing

 Appellant also asserts sentencing error alleging a failure of the trial court to consider applicable circumstances in mitigation.   We find no error for the reasons stated below.

In sentencing the appellant to the upper term for violation of Vehicle Code section 10851, a term of three years, the court stated:

“․ in arriving at the upper term, the court finds the circumstances in aggravation pursuant to rule 421 to be as follows:  The defendant's prior convictions as an adult are numerous and of increasing seriousness;  two, the defendant was on both probation and parole when he committed the present offense;  and three, the defendant's prior performance on probation and parole have been unsatisfactory.

“In considering the circumstances in mitigation pursuant to rule 423 of the California Rules of Court3 the court finds there's no circumstances in mitigation.   So the court both in terms of number and in terms of weight finds that the aggravating circumstances outweigh mitigating circumstances.”

Appellant makes no claim that any of the enumerated circumstances set forth in rule 423 have application to his case and/or were ignored by the trial court.   The thrust of appellant's claim of error is that the trial court failed to consider other mitigating circumstances which it had referred to when considering probation at the outset of the sentencing hearing.

The trial court denied probation pursuant to Penal Code section 1203, subdivision (e)(4), due to prior felony convictions and a finding that the case was not “unusual” under the criteria of rule 416.   However, the court then indicated that even in the absence of the prior felony convictions it would have denied probation under the criteria set forth in rule 414.   In making this determination the court expressly noted factors which mitigated in favor of the granting of probation;  specifically the court observed that the “circumstances surrounding the offense are not particularly serious․  [¶] [T]here was not a significant loss nor harm to property ․ no showing of any injury to the victim, no weapon was used ․ no advance planning ․ didn't display any professionalism or sophistication in the manner in which the crime was committed.”   However, the court found, for purposes of probation, that the mitigating factors were outweighed by appellant's extensive criminal history, prior poor performance on probation and parole, and lack of remorse.

It is well settled that the mitigating circumstances listed in rule 423 are illustrative, not exclusive.  (People v. Jordan (1986) 42 Cal.3d 308, 316, 228 Cal.Rptr. 197, 721 P.2d 79;  People v. Covino (1980) 100 Cal.App.3d 660, 671, 161 Cal.Rptr. 155.)

 Rule 409 establishes the presumption that the court has properly considered all relevant sentencing criteria unless the record affirmatively reflects otherwise.   However, this presumption may be rebutted where the court states that it finds no circumstances in mitigation.   When mitigating factors do exist, but the court fails to consider them, the defendant is entitled to a new hearing on the question of circumstances in mitigation and aggravation.  (See, e.g., People v. Burney, (1981) 115 Cal.App.3d 497, 505, 171 Cal.Rptr. 329;  People v. Covino, supra, 100 Cal.App.3d at p. 672, 161 Cal.Rptr. 155.)

Having the foregoing principles in mind we must yet determine whether the factors enumerated by the trial court as mitigating for probation purposes under rule 414, remain relevant for purposes of mitigation in sentencing under rule 423.

In answering this question we initially observe that the criteria set forth in rules 414 and 423 are designed to meet differing objectives.  “The decision whether to grant probation is normally based on an overall evaluation of the likelihood that the defendant will live successfully in the general community.   Each criterion points to evidence that the likelihood of success is great or small․”  (Advisory Committee Comment, rule 414.)   On the other hand the general objectives of sentencing include society's protection, punishment, deterrence, prevention, restitution and uniformity in sentencing.  (Rule 410.)   Thus, in view of the disparate objectives involved in probation and sentencing proceedings it is illogical and inappropriate to conclude that factors deemed mitigating for probation purposes are ipso facto relevant for purposes of mitigation in sentencing.   As previously observed, it is only relevant criteria that must be considered by the sentencing judge.

“ ‘Mitigation’ or ‘circumstances of mitigation’ means facts which justify the imposition of the lower prison term․”  (Rule 405.)   Appellant here was convicted of violating section 10851 of the Vehicle Code:  “Any person who takes or drives a vehicle not his or her own, without the consent of the owner thereof, and with intent either to permanently or temporarily to deprive the owner thereof of his or her title to or possession of the vehicle, whether with or without intent to steal a vehicle․”  Penal Code section 1170, subdivision (b), directs that “[w]hen a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime.”

 Here, the factors enumerated by the trial judge as mitigating for purposes of granting probation are clearly irrelevant for purposes of sentence mitigation.   That appellant did not use a weapon or injure the victim in the commission of the auto theft serves only to explain why he was charged with auto theft rather than more serious crimes.   In other words, the fact that he did not commit a greater offense does not mitigate the gravity of the offense for which he was charged and convicted.

 The absence of planning, sophistication or professionalism suggests only the absence of premeditation, a factor of aggravation under rule 421, but does not serve to mitigate the offense because the commission was spontaneous.   Indeed, the trial judge necessarily considered the lack of planning, sophistication or professionalism as he declined to list it as a factor in aggravation.   It is not surprising that elements demonstrating premeditation are recognized as a basis for aggravation under rule 421, but are ignored as a basis for mitigation under rule 423, for sound public policy cannot accept spontaneity as a plausible reason for lessening the degree of severity of particular criminal conduct.   It is unimaginable that the legislative mandate for a middle term sentence could be mitigated to a lesser term because the criminal acted from a natural impulse or tendency.

Commenting that the “circumstances ․ of the offense are not particularly serious” and “there was not a significant loss or harm to property” is certainly the prerogative of the trial judge faced with the decision whether appellant should be returned to the community on probation.   However, appellant's attempt to convert those statements into factors of mitigation is sorely misdirected.   That the owner of the vehicle realized its return, presumably without damage, does not detract from the seriousness of the crime, and the seriousness of the crime is determined by what the Legislature has declared in terms of the punishment to be afforded.   It would be a unique system of sentencing that would impose two years on the auto thief whose stolen vehicle suffered a dent and would allow 16 months for the auto thief whose stolen vehicle survives unscathed.   Such a system would not be promotive of uniformity in sentencing, a general objective under rule 410.

The judgment is affirmed.

FOOTNOTES

1.   CALJIC No. 17.12, as given in this case, reads as follows:“In this case the defendant is charged in count one with the offense of vehicle taking.   Joy riding is a lesser offense.“The court will provide you with verdict forms for each count charged and for each lesser offense.“You should determine whether the defendant is guilty or not guilty of the offense of vehicle taking charged in count one.“If you unanimously agree that the defendant is guilty of said offense charged in count one, you will have your foreman date and sign the guilty verdict and return with it into court.   Nothing further will be required of you.“However, if you unanimously agree that the defendant is not guilty of such offense, you will have your foreman date and sign the not guilty verdict for that crime and you will determine whether the defendant is guilty or not guilty of the lesser offense of joy riding.“If you unanimously agree that the defendant is guilty or not guilty of said lesser offense of joy riding, you will have your foreman date and sign such guilty or not guilty verdict and return it into court, together with the not guilty verdict on the offense of vehicle taking charged in count one.“You will note from this instruction that you must unanimously agree that the defendant is not guilty of the greater offense before you may find the defendant guilty or not guilty of any lesser offense.“If you are not able to unanimously agree on the greater offense, your foreman shall report such fact to the court.“If you unanimously agree that the defendant is not guilty of the offense of vehicle taking charged in count one, but after due and sufficient deliberation you can not agree that the defendant is guilty of [sic] not guilty of the lesser offense, your foreman shall report such fact to the court and then return to the court the signed not guilty verdict of the offense of vehicle taking charged in count one.“You will note from this instruction that if you unanimously agree that the defendant is not guilty of the offense of vehicle taking charged in count one, you must have your foreman date and sign such verdict and return it into court regardless of what may happen in your deliberations on the lesser offense.”

2.   Alternatively, Stone provides that the trial judge may decide to “․ wait and see whether the jury is unable to reach a verdict;  if it is, the court should then inquire whether the jury was able to eliminate an offense.   If the jury declares itself hopelessly deadlocked on the lesser offense yet unanimous for acquittal on the greater offense, and the court is satisfied that the jury is not merely expressing a tentative vote but had completed its deliberation, the court must formally accept a partial verdict on the greater offense․”  (Id. 31 Cal.3d at pp. 519–520, 183 Cal.Rptr. 647, 646 P.2d 809.)

3.   Hereafter, all reference to rules refer to the California Rules of Court.

BENSON, Associate Justice.

KLINE, P.J., and ROUSE, J., concur.