Filed 9/27/13 P. v. Bernstein CA5




                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
                                     FIFTH APPELLATE DISTRICT


THE PEOPLE,

         Plaintiff and Respondent,                                                    F064788

                   v.                                                   (Super. Ct. No. BF138398A)

MICHAEL DAVID BERNSTEIN,                                                          OPINION

         Defendant and Appellant.



                                                   THE COURT
         APPEAL from a judgment of the Superior Court of Kern County. David R.
Lampe, Judge.
         John L. Staley, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and
Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-

        Before Gomes, Acting P.J., Kane, J., and Poochigian, J.
       A jury convicted appellant, Michael David Bernstein, of carjacking (Pen. Code,
§ 215, subd. (a);1 count 1), robbery (§ 212.5, subd. (c); count 2), and taking or driving a
vehicle without the consent of the owner (Veh. Code, § 10851, subd. (a); count 3). In a
bifurcated proceeding, the trial court found true allegations Bernstein served two prior
prison terms within the meaning of section 667.5, subdivision (b).
       The trial court sentenced Bernstein to state prison for an aggregate 11-year term:
the upper term of nine years on count 1 and two consecutive one-year terms for the prior
prison term enhancements. The trial court stayed the sentence on counts 2 and 3 pursuant
to section 654.
       Bernstein appeals, contending the trial court erred by: (1) failing to instruct the
jury on the offense of grand theft; and (2) refusing his request to personally address the
court during sentencing. We affirm.
                                          FACTS
       On September 7, 2011, Sharon Duffin stopped for gas in Bakersfield. She pulled
up to a gas pump at the back of the station but discovered that it was not working. She
drove to the front of the station and pulled alongside another gas pump. As she
proceeded to the second pump, Bernstein approached from the side of the parking lot and
told her that her gas cap was off.
       Duffin exited her car at the second gas pump, leaving her keys in the ignition and
her purse in plain view on the seat. Her purse contained two wallets, cell phones, and
other personal property. One of the wallets contained four $20 bills, one $10 bill, two $5
bills and six $1 bills. The other wallet contained family pictures and grocery store
discount cards.
       Duffin swiped her gas card at the fuel pump. As she was entering her zip code
into the credit card reader, she felt someone move behind her and heard him say, “I
1      All statutory references are to the Penal Code unless otherwise specified.



                                              2
thought you were going to drive away with your gas cap off.” From the corner of her
eye, Duffin saw Bernstein‟s leg enter her car and the car door shut. She turned, grabbed
the car door and reached into the car and through the steering wheel in an attempt to press
the panic button on her key ring. As she reached into the car, she looked at Bernstein and
told him to get away from her car. He told her to “[p]lease step away.” She felt a nudge
and the car started to slowly roll forward. She stepped away, ran into the mini-mart and
asked someone to call 911.
       Deputy Sheriff Joshua Brooks interviewed Duffin at the gas station. Meanwhile,
Deputy Sheriff Charles Leask located Duffin‟s car parked at a 7-Eleven store and saw
Bernstein exit a restaurant across the street. Leask searched Bernstein and found cash in
the denominations Duffin reported stolen minus three $1 bills. He also found her wallets
in the bathroom inside a laundry bin.
       Duffin testified that she was frightened when she reached into her car for her keys.
When she saw the look in Bernstein‟s eyes, she knew she needed to step away from the
car. After he drove away, she yelled, “Oh, God. Somebody please help me.” She ran
into the mini-mart and said, “Someone please call 911. My car‟s been stolen.” She later
noticed that her right forearm was red and bruised where it had been inside the steering
wheel. Her injured forearm was photographed.
       Brooks testified that Duffin was “visibly shaken, upset” when he interviewed her
at the gas station.
       Bernstein did not testify. His attorney argued the evidence did not support
convictions for carjacking and robbery because the prosecution failed to prove beyond a
reasonable doubt that Bernstein used force or fear to take Duffin‟s vehicle.
       The trial court instructed the jurors, as relevant here, on carjacking and robbery
with respect to Duffin‟s wallet and the contents of her purse. After releasing the jury to
deliberate, the trial court stated it did not give or refuse any instruction over the objection



                                               3
of counsel. The court further stated the evidence did not support instructing on lesser
included offenses.
       The jury convicted Bernstein of carjacking and robbery. At sentencing, the trial
court announced a tentative sentence and Bernstein‟s attorney argued for mitigation and
leniency. At the conclusion of her argument, trial counsel informed the court Bernstein
wanted to address the court and apologize to Duffin. The court declined, stating it read
Bernstein‟s statement and had taken his apology into account and proceeded to
sentencing.
                                      ARGUMENTS
I.     Not Instructing the Jury on Grand Theft.
       Bernstein contends the trial court prejudicially erred by not instructing the jury on
grand theft as a lesser included offense of carjacking and robbery. He claims the jurors
could have found he did not use force or fear to take Duffin‟s vehicle but rather used only
that force necessary to seize her vehicle. We disagree.

               “„In criminal cases, even absent a request, the trial court must
       instruct on general principles of law relevant to the issues raised by the
       evidence. [Citation.] This obligation includes giving instructions on lesser
       included offenses when the evidence raises a question whether all the
       elements of the charged offense were present, but not when there is no
       evidence the offense was less than that charged. [Citation.] The trial court
       must so instruct even when, as a matter of trial tactics, a defendant not only
       fails to request the instruction, but expressly objects to its being given.‟
       [Citations.]” (People v. Moye (2009) 47 Cal.4th 537, 548.)
       A. Force or Fear
       The crimes of carjacking2 and robbery3 both include an element of “force or fear.”
Bernstein contends the amount of force necessary to constitute carjacking and robbery

2      “„Carjacking‟ is the felonious taking of a motor vehicle in the possession of
another, from his or her person or immediate presence, or from the person or immediate
presence of a passenger of the motor vehicle, against his or her will and with the intent to
either permanently or temporarily deprive the person in possession of the motor vehicle


                                             4
must exceed the force “„necessary to accomplish the mere seizing of the property.‟”
(People v. Anderson (2011) 51 Cal.4th 989, 995.) He claims there is insufficient
evidence he exerted anything more than the amount of force necessary to seize Duffin‟s
vehicle. Therefore, the evidence supported the trial court instructing on the lesser offense
of grand theft. Bernstein does not challenge the sufficiency of the evidence that he took
Duffin‟s vehicle by means of fear.

       “In resolving sufficiency of the evidence claims, „an appellate court reviews
       the entire record in the light most favorable to the prosecution to determine
       whether it contains evidence that is reasonable, credible, and of solid value,
       from which a rational trier of fact could find the defendant guilty beyond a
       reasonable doubt.‟ [Citation.]” (People v. Gomez (2008) 43 Cal.4th 249,
       265.)
       Here, there is adequate circumstantial evidence Bernstein took Duffin‟s vehicle by
force. He used the forward motion of the car to exert enough pressure on Duffin‟s arm to
cause her to withdraw it or suffer serious injury. In addition, Duffin suffered bruising on
the arm she extended into the vehicle. Such evidence shows Bernstein used force in
excess of that required to merely seize Duffin‟s vehicle.
       The evidence also shows that Bernstein used fear to take Duffin‟s vehicle. Duffin
testified that she was frightened during the ordeal. In fact, it was fear that caused her to
back away from her car when she realized that Bernstein intended to drive off whether
she removed her arm or not. Thus, Bernstein used both force and fear of injury to take
Duffin‟s vehicle.




of his or her possession, accomplished by means of force or fear.” (§ 215, subd. (a),
italics added.)
3      “Robbery is the felonious taking of personal property in the possession of another,
from his person or immediate presence, and against his will, accomplished by means of
force or fear.” (§ 211, italics added.)



                                              5
       B. Carjacking
       Theft is not a lesser included offense of carjacking. (People v. Ortega (1998) 19
Cal.4th 686, 693 (Ortega), disapproved on a different point in People v. Reed (2006) 38
Cal.4th 1224, 1228.) Theft involves the felonious taking, carrying, or driving away of the
personal property of another. (§ 484, subd. (a).) “Theft is divided into two degrees, the
first of which is termed grand theft; the second, petty theft.” (§ 486.) Grand theft
includes the theft of an automobile. (§ 487, subd. (d)(1).)
       Carjacking, in contrast, involves the felonious taking of a vehicle in the possession
of another or from his person or immediate presence, against his will and with the intent
to permanently or temporarily deprive the victim of possession of his or her car,
accomplished by force or fear. (§ 215, subd. (a).)
       Thus, in Ortega, the California Supreme Court held that grand theft is not a lesser
included offense of carjacking, stating:

               “Carjacking requires two elements that are not required for theft:
       that the vehicle be taken from the possession or immediate presence of
       another, and that the taking be „accomplished by means of force or fear.‟
       … Theft requires an element—the specific intent to permanently deprive a
       person of property—that is not required for carjacking. [Citations.]
       Accordingly, neither carjacking nor theft is a necessarily included offense
       of the other, because it is possible to commit either offense without
       committing the other. [Citation.]” (Ortega, supra, 19 Cal.4th at p. 693.)

       C. Robbery
       Theft can be a lesser included offense of robbery if the evidence does not support
the elements of force or fear. (People v. Cooksey (2002) 95 Cal.App.4th 1407, 1411.)
However, in this case, as discussed above, the evidence demonstrated that Bernstein took
Duffin‟s vehicle by means of force and fear. Consequently, there is no substantial
evidence that Bernstein committed the act of grand theft and the trial court did not err in
not instructing the jury on that offense.




                                             6
II.    Not Allowing Bernstein to Make a Personal Statement of Apology at the Time
       of Sentencing.
       Bernstein contends the trial court violated his due process and statutory right under
section 1204 by refusing to let him address the court during sentencing. We reject his
contentions in light of the California Supreme Court‟s decision in People v. Evans (2008)
44 Cal.4th 590 (Evans).
       The Evans court addressed section 1204 and the parameters of the right it confers
on a defendant. Section 1204 provides as relevant:

              “The circumstances [in aggravation or mitigation of punishment]
       shall be presented by the testimony of witnesses examined in open court.…
       No affidavit or testimony, or representation of any kind, verbal or written,
       can be offered to or received by the court … in aggravation or mitigation of
       the punishment, except as provided in this … section.”
       The Evans court held that a defendant has “the right to make a personal statement
in mitigation of punishment but only while under oath and subject to cross-examination
by the prosecutor.” (Evans, supra, 44 Cal.4th at pp. 592-593.) The court stated:

       “By stating in section 1204 that mitigating evidence must be presented
       through „the testimony of witnesses examined in open court‟ rather than
       verbal representations, the Legislature has declared that a criminal
       defendant wishing to make an oral statement to the court in mitigation of
       punishment must do so through testimony given under oath.” (Evans,
       supra, 44 Cal.4th at p. 598.)
       In this case, contrary to Bernstein‟s assertions, there is no evidence on this record
that he intended to testify. His trial counsel did not attempt to call him to testify and
Bernstein did not ask to do so. Consequently, the trial court did not violate his right to
make a personal statement under section 1204.
       Further, the Evans court held that section 1204 protects a defendant‟s due process
right at sentencing. The court stated:

       “„The fundamental requirement of due process is the opportunity to be
       heard “at a meaningful time and in a meaningful manner.”‟ [Citation.]


                                              7
       California law, through section 1204, gives a criminal defendant the right at
       sentencing to make a sworn personal statement in mitigation that is subject
       to cross-examination by the prosecution. This affords the defendant a
       meaningful opportunity to be heard and thus does not violate any of the
       defendant‟s rights under the federal Constitution.” (Evans, supra, 44
       Cal.4th at p. 600.)
       We reject Bernstein‟s arguments and conclude he was not denied his right to
address the trial court either under federal constitutional principles or California statutory
law.
       We find no error.
                                      DISPOSITION
       The judgment is affirmed.




                                              8
