P. v. Mesa

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Filed 6/15/07 P. v. Mesa CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
JAMES ISAAC MESA,
Defendant and Appellant.
A112921
(Sonoma County
Super. Ct. No. SCR-452927)
Appellant James Isaac Mesa contends the evidence is insufficient to support his
convictions for robbery and carjacking. (Pen. Code, §§ 211, 215.)1 He also contends the
trial court violated his constitutional rights in sentencing him to upper terms on all
offenses, and in committing other sentencing errors. We reject appellant’s contentions as
to the sufficiency of the evidence, but agree with appellant that the matter must be
remanded for resentencing.
I. FACTS AND PROCEDURAL HISTORY
This appeal arises from numerous crimes perpetrated by appellant in November of
2004, in four different incidents on four different dates. Although only the robbery and
carjacking convictions arising from events on November 11, 2004 are directly in issue on
this appeal, we will also briefly summarize the facts as to the other crimes.
A. R OBBERY AND C ARJACKING I NVOLVING A C HEVY B LAZER T RUCK
On November 11, 2004, appellant approached a victim he knew, Richard Mitchell
(Richard) who was working in his workshop on Windsor Road. Appellant pulled out a
1 All subsequent statutory references are to the Penal Code.

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gun and demanded the keys to Richard’s Chevy Blazer truck, at gunpoint. After
appellant got the keys to the truck, he drove away, while firing his gun at Richard.
Richard then fired a gun at appellant, shattering the windows of the truck. Appellant
could not drive away very fast, because Richard had left the truck in four-wheel drive
mode, which limited the top speed of the truck to about 35 to 45 miles an hour. Richard
could hear the loud revving of the engine on the truck, as appellant drove off.
The truck was later found abandoned, just a mile or so away from the site of the
original taking. The windows had been shattered by gunfire. There was also a bullet
hole in the roof, on the passenger side; this hole had been created by someone firing from
the inside of the vehicle.
B. O THER O FFENSES
Appellant also perpetrated other offenses involving firearms in November of 2004,
which are less relevant to the issues raised on appeal. On November 5, 2004, appellant
had a dispute with Jason Mitchell (Jason), who is no relation to Richard Mitchell, and
who had just cut appellant’s hair. Shortly after the haircut, Jason received a call from
appellant’s girlfriend, who was scared and upset because appellant had a gun and was in
her apartment. Jason went to appellant’s girlfriend’s apartment to try to talk to appellant
and defuse the situation. Appellant fired his gun at Jason at least three times, wounding
him in the foot, forearm, and chest.
On November 12, 2004, appellant had a dispute with his own brother Joseph Mesa
(Joseph). Appellant was at his brother’s home early in the morning, and Joseph told
appellant to leave. Appellant got mad and fired a gun at Joseph at least three times,
missing him.
Finally, on November 16, 2004, appellant was arrested, and he had a loaded .357
magnum revolver in his waistband.
C. PROCEDURAL H ISTORY, V ERDICTS, AND S ENTENCING
In an information filed on January 4, 2005, appellant was charged with 12 counts,
as a result of his criminal activities in November 2004: (1) attempted murder of Jason;
(2) assault with a firearm, also as to Jason; (3) unlawful possession of a firearm by an ex-

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convict, in violation of section 12021, subdivision (a)(1), on November 5, 2004, the same
date counts I and II were alleged to have occurred; (4) carjacking, as to the truck
belonging to Richard; (5) robbery, also as to Richard; (6) assault with a firearm, as to
Richard; (7) vehicle theft, as to the truck belonging to Richard; (8) unlawful possession
of a firearm by an ex-convict, in violation of section 12021, subdivision (a)(1), on
November 11, 2004, the same date counts IV through VII were alleged to have occurred;
(9) attempted murder, as to Joseph; (10) assault with a firearm, as to Joseph; (11)
unlawful possession of a firearm by an ex-convict, in violation of section 12021,
subdivision (a)(1), on November 12, 2004, the same date counts IX and X were alleged to
have occurred; and (12) unlawful possession of a firearm by an ex-convict, in violation of
section 12021, subdivision (a)(1), on November 16, 2004.
It was also alleged that appellant had six prior felony convictions, of which one
was a prior strike, and three were prior prison convictions, within the meaning of sections
667.5, subdivision (b) and 1170.12; and that appellant had personally used a firearm and
personally discharged a firearm, and had been released from custody on bail at the time
of the offenses.
In the course of a jury trial at which the evidence summarized above was adduced,
the trial court granted a motion for acquittal on the attempted murder charge as to Joseph,
count IX, but appellant was convicted by the jury on all the other charged crimes except
the remaining attempted murder charge, as to Jason, count I. Appellant also admitted to
the court that he had been on bail at the time of the offenses, and admitted he had
suffered the prior convictions.
The trial court sentenced appellant to a total term of 54 years in prison.
The court selected count IV, the carjacking, as the principal term, and imposed the
upper term of nine years, doubled for the prior strike conviction, for a subtotal of 18
years. As an enhancement under the terms of section 12022.53, subdivision (c) for the
discharge of the firearm during the course of this crime, the court imposed an additional
20 years, for another subtotal of 38 years.

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In addition, the court imposed another 16 years, calculated as follows: three years
for the assault with a firearm in count II, with a four-month enhancement under section
12022.5, subdivision (a)(1); one year four months for the unlawful firearm possession in
count III; plus three years for the assault with a firearm on count X, with a four-month
enhancement; and an additional eight years for prior prison terms. The court also
imposed certain concurrent and stayed terms. The court imposed concurrent terms of six
years apiece for the unlawful possession of a firearm charged in counts XI and XII. The
court also imposed but stayed terms of 10 years on count V, eight years on count VI, six
years on count VII. The court imposed another concurrent six-year term on count VIII,
which is incorrectly shown as a stay on the abstract of judgment.
As to substantive crimes in which the trial court was choosing to impose the
upper, middle, or lower terms, the trial court chose to impose upper terms, and found
three aggravating factors justifying this sentencing choice: (1) defendant engaged in
violent conduct indicating a serious danger to society; (2) defendant’s prior convictions
as an adult and sustained proceedings as a juvenile were numerous and of increasing
seriousness; and (3) defendant’s prior performance on probation and parole was
unsatisfactory. The court found these aggravating factors outweighed the mitigating
factor suggested by the probation department, i.e., the fact that appellant’s performance
on parole from the California Youth Authority (CYA) had been satisfactory. In addition,
the court observed that if one factor, the factor relating to violent conduct posing a
serious danger to society, was later found improper because it should have been found
true by the jury rather than the court, the court would still choose to impose the upper
term. We will discuss the sentencing proceedings in more detail in the final two parts of
this opinion, in connection with appellant’s specific claims of sentencing error.
II. DISCUSSION
A. S UFFICIENCY OF THE E VIDENCE FOR R OBBERY AND C ARJACKING
Appellant first contends there is insufficient evidence that he intended to
permanently deprive Richard of his possession of the Chevy Blazer truck, as relevant to
the robbery conviction and carjacking conviction.

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When the sufficiency of the evidence is in dispute, the court “must ‘review the
entire record, and drawing all reasonable inferences in favor of [the judgment], . . .
determine whether a rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.’” (People v. Hughes (2002) 27 Cal.4th 287, 357.) On
appeal, the court must determine whether the record “contains substantial evidence—i.e.,
evidence that is credible and of solid value,” from which a rational trier of fact could
have found that the elements of the crime were established beyond a reasonable doubt.
(People v. Jennings (1991) 53 Cal.3d 334, 364 (Jennings).) On review, however, the
appellate court need not be convinced beyond a reasonable doubt. (People v. Alcala
(1984) 36 Cal.3d 604, 623 (Alcala), disapproved on other grounds in People v. Falsetta
(1999) 21 Cal.4th 903, 911.) The appellate court “must merely determine whether ‘any
rational trier of fact’ at all could be so persuaded.” (Alcala, supra, at p. 623.)
In the present case, there was evidence more than sufficient to justify the jury’s
factual finding that appellant took the truck with the intent to permanently deprive its
owner of possession. As previously mentioned, appellant demanded the keys to the truck
at gunpoint. After appellant obtained the keys to the truck, he drove away, while firing
his gun at Richard. Richard then fired back at appellant, shattering the windows of the
truck. Appellant could not drive away very fast, because the truck was in four-wheel
drive mode, which limited the top speed of the truck to about 35 to 45 miles an hour. The
truck made a loud revving sound as appellant tried to drive off at high speed but could
not. The truck was later found abandoned, just a mile or so away from the site of the
original taking. The back window and side window had been shattered. These actions
were obviously inconsistent with an intent to merely borrow the truck, or return the truck
to its owner later.
Appellant however places emphasis on the fact that the truck was found
abandoned just a mile or so away from the site of the taking. From the fact that the truck
was found abandoned not far away, appellant suggests it might have been his intent to
merely obtain temporary, not permanent possession. Perhaps that was one inference the
jury could have drawn, although it is certainly not the only inference or the most

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reasonable inference. The most reasonable inference is that appellant intended to deprive
the owner of possession permanently, but later changed his mind for some reason and
abandoned the vehicle. As for why appellant changed his mind, only he would know,
and he presented no evidence on the point, but the prosecution evidence indicates the
truck had been left in a four-wheel drive mode of operation, which prevented it from
operating at normal high speeds.2 In addition, of course, the owner of the truck had just
shot out some of its windows as appellant was driving off, which would have made the
stolen truck stand out even more when it was on the road.
In any event, the jury’s task was not to determine why appellant abandoned the
truck, but instead to determine whether he took it, with the intent to permanently deprive
its owner of possession. The evidence is fully sufficient to justify the jury’s reasonable
inference that appellant took the truck and intended to deprive the owner of possession
permanently, so appellant’s argument in this respect fails. (See Jennings, supra, 53
Cal.3d at p. 364.)3
B. IMPOSITION OF U PPER T ERMS
Appellant next contends the court committed Blakely error by imposing the upper
terms based on aggravating facts not determined by the jury, thereby denying him his
2 Appellant suggests there was no evidence that the truck was still in four-wheel
drive mode at the time it was found. However, Richard testified that the truck was in
four-wheel drive mode when appellant took it, and Richard testified the only difference
with the truck when found was that the windows had been shot out. It was reasonable for
the jury to infer from his evidence that the truck was still in four-wheel drive mode. In
addition, of course, the fact that the windows had been shot out was another circumstance
suggesting that appellant would want to abandon the vehicle.
3 We also do not agree with appellant’s contention that the carjacking conviction
necessarily required a showing of an intent to deprive the owner of his vehicle
permanently. The relevant statute (§ 215) and the jury instructions properly given in this
case allowed a carjacking conviction even if the deprivation was intended to be only
temporary. Appellant however argues that because the information mistakenly charged
that appellant acted “with the intent to permanently and temporarily deprive” (italics
added) that an intent to permanently deprive was required to be shown at trial. The mere
use of the word “and” as a conjunction in the information did not require such a showing
and in any event we need not address this issue further, as we have found substantial
evidence of an intent to permanently deprive.

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federal constitutional right to jury trial in violation of the Sixth and Fourteenth
Amendments.4 We agree a remand for resentencing is appropriate in this case.
In Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), the United States
Supreme Court interpreted the Sixth Amendment to the United States Constitution to
require that, other than the fact of a prior conviction, any fact that increases the penalty
for a crime beyond the statutory maximum must be tried to a jury and proved beyond a
reasonable doubt. (Apprendi, supra, at p. 490.)
For this purpose, the statutory maximum is the maximum sentence that a court
could impose based solely on facts reflected by a jury’s verdict or admitted by defendant;
thus, when a sentencing court’s authority to impose an enhanced sentence depends upon
additional fact finding, there is a right to a jury trial and proof beyond a reasonable doubt
on the additional facts. (Blakely v. Washington (2004) 542 U.S. 296, 301-305 (Blakely).)
In Cunningham, the United States Supreme Court held that by “assign[ing] to the trial
judge, not to the jury, authority to find the facts that expose a defendant to an elevated
‘upper term’ sentence,” California’s determinate sentencing law “violates a defendant’s
right to trial by jury safeguarded by the Sixth and Fourteenth Amendments.”
(Cunningham v. California (2007) __ U.S. __ [127 S.Ct. 856, 860] (Cunningham),
overruling on this point Black, supra, 35 Cal.4th 1238.)
In this case, when the trial court was choosing to impose the upper, middle, or
lower terms, the trial court chose to impose upper terms, and found three aggravating
factors justifying this sentencing choice: (1) defendant engaged in violent conduct,
indicating a serious danger to society; (2) defendant’s prior convictions as an adult and
sustained proceedings as a juvenile were numerous and of increasing seriousness; and
(3) defendant’s prior performance on probation and parole was unsatisfactory. These
4 We reject the Attorney General’s assertion that appellant waived this claim of
sentencing error by failing to assert it below. Appellant’s sentencing hearing occurred on
December 12, 2005, which was almost six months after People v. Black (2005) 35
Cal.4th 1238 (Black) was decided. Thus, at the time of sentencing, the court was
compelled to follow Black on this issue, and any objection would have been futile.
Consequently, there was no waiver. (See People v. Turner (1990) 50 Cal.3d 668, 703-
704.)

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aggravating factors outweighed the mitigating factor suggested by the probation
department, i.e., the fact that appellant’s performance on parole from CYA had been
satisfactory. In addition, the court observed that if one factor, the factor relating to
violent conduct posing a serious danger to society, was later found improper because it
should have been found true by the jury rather than the court, the court would still choose
to impose the upper term.
The fact that appellant had previous convictions could be appropriately relied
upon by the court under Blakely and Cunningham, even without a jury finding. (See
Blakely, supra, 542 U.S. at p. 301; Cunningham, supra, 127 S.Ct. at p. 868.) However,
the remaining factors should have been submitted to a jury.
We note that in Washington v. Recuenco (2006) ___ U.S. ___ [126 S.Ct. 2546,
2550-2553], the United States Supreme Court held that Blakely error was not structural
error, but instead was subject to harmless error analysis under Chapman v. California
(1967) 386 U.S. 18, 24 (Chapman); see also People v. Sengpadychith (2001) 26 Cal.4th
316, 327.)
Any error the trial court made in considering an aggravating circumstance is
harmless under Chapman, if we conclude, beyond a reasonable doubt, that the jury would
have found the circumstance true. It does appear that the jury would have concluded that
appellant engaged in violent conduct and posed a serious danger to society. Further, as
pointed out above, the trial court explicitly stated that it would still have decided to
impose the upper terms, even if this factor were subsequently held to be invalid.
However, there remains the question of factor (3), i.e., whether appellant’s prior
performance on probation and adult parole had been unsatisfactory. The trial court
explicitly stated that it would have imposed the same sentence even if factor (1) was
invalid, but did not make the same statement regarding the other factors. In these
circumstances, we cannot properly conclude beyond a reasonable doubt under Chapman
that the jury would have found these additional aggravating facts, and also that the trial
court would still have imposed the upper or aggravated terms in any event, even in the

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absence of this factor. Therefore, the matter should be remanded to the trial court for
resentencing, and a properly based decision as to whether to impose the upper terms.
C. O THER S ENTENCING E RRORS
Appellant finally contends, and the People concede, that the trial court committed
other sentencing errors. We will direct that these errors, which we summarize as follows,
be corrected on remand.
We first summarize the part of the sentence that is not challenged in this respect
on appeal. The court selected count IV, the carjacking, as the principal term, and
imposed the upper term of nine years, doubled for the prior strike conviction, for a
subtotal of 18 years. As an enhancement under the terms of section 12022.53,
subdivision (c) for the discharge of the firearm during the course of this crime, the court
imposed an additional 20 years, for another subtotal of 38 years. Thus far, there are no
errors in the sentence.
In addition, the court imposed another 16 years, calculated as follows: three years
for the assault with a firearm in count II, with a four-month enhancement under section
12022.5, subdivision (a)(1); one year four months for the unlawful firearm possession in
count III; plus three years for the assault with a firearm on count X, with a four-month
enhancement; and an additional eight years for prior prison terms. The court also
imposed certain concurrent and stayed terms. The court imposed concurrent terms of six
years apiece for the unlawful possession of a firearm charged in counts XI and XII. The
court also imposed but stayed terms of 10 years on count V, eight years on count VI, six
years on count VII. The court imposed another concurrent six-year term on count VIII,
which is incorrectly shown as a stay on the abstract of judgment. Appellant and the
People agree there were numerous errors in these portions of the sentence.
First, as appellant points out and the People concede, appellant’s sentence for
assault with a firearm as charged in count II should be two years, not the three years
actually imposed, because the sentence for this subordinate term should be one third of
the middle term of three years, doubled for one prior strike conviction. (See People v.
Nguyen (1999) 21 Cal.4th 197, 204.) This error must be corrected on remand.

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Further, the People also concede appellant’s argument that a one-year prior
conviction enhancement imposed for the October 29, 1996 prior conviction for
dissuading a witness must be stricken, because the trial court also imposed a five-year
enhancement for this same conviction. (See People v. Jones (1993) 5 Cal.4th 1142,
1152.) This error must be corrected on remand.
In addition, the court imposed another concurrent term of six years on count VIII,
which is incorrectly shown as a stay on the abstract of judgment. This error must be
corrected on remand.
On count X, the assault with a firearm as to Joseph, the court orally imposed a
concurrent full term composed of the aggravated term of eight years, i.e., the upper term
of four years, doubled by the prior strike. The parties agree the term for this offense must
be consecutive, not concurrent. This error was apparently caught by the clerk of the
court, and the abstract of judgment indicates imposition of a consecutive sentence, but
with the term indicated as three years, plus a four-month consecutive enhancement. The
sentence for this substantive offense should be two years, i.e., one third of the middle
term of three years, doubled by the prior strike. This error must be corrected on remand,
and will reduce by one more year the operative sentence.
Thus far the errors asserted by appellant would require a three-year reduction in
appellant’s operative sentence, but there is another error which when corrected will
operate to lengthen his sentence somewhat. As the People point out, the trial court
should have imposed enhancements under the terms of section 12022.5, subdivision (a)
as to counts II and VI, and in the case of the unstayed sentence on count II the
enhancement should be in the amount of two years eight months, which is one third of
the midterm, or one year four months, doubled for the prior strike, and the court should
not have imposed just the four months actually imposed in the abstract of judgment. (See
People v. Felix (2000) 22 Cal.4th 651, 656.) This error should be corrected on remand,
and it would require lengthening the operative sentence by two years four months, as
compared to the shortening of the sentence by three years that would otherwise be proper,
for a net reduction of eight months.

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In addition, we agree with the parties that the trial court properly imposed full
term sentences for the convictions on counts V, VI, and VII, but then stayed those terms.
(See People v. Guzman (1996) 45 Cal.App.4th 1023, 1028.) We also remand to the trial
court to consider whether to sentence appellant to the upper terms, as was discussed in
the preceding part of this opinion.
III. DISPOSITION
The judgment of conviction is affirmed. However, the matter is remanded to the
trial court for resentencing and correction of the sentence indicated on the abstract of
judgment, as set forth herein, and the forwarding of a corrected copy of the abstract of
judgment to the Department of Corrections.
NEEDHAM, J.
We concur.
JONES, P. J.
SIMONS, J.

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