Filed 2/25/16 P. v. Turpitt CA5




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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                     F069074/F069102
         Plaintiff and Respondent,
                                                                        (Super. Ct. Nos. 1439597, 1444034,
                   v.                                                      1444516, 1444605, 1464736)

IRVIN LEEROY TURPITT, JR.,
                                                                                         OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Stanislaus County. Marie S.
Silveira, Judge.
         C. Matthew Missakian, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Catherine Chatman and Angelo S. Edralin, Deputy Attorneys General, for
Plaintiff and Respondent.
                                                        -ooOoo-
       Irvin Leeroy Turpitt, Jr. entered into plea bargains in four cases, and was found
guilty of numerous offenses by a jury in a fifth case. In the case tried to the jury, Turpitt
argues the conviction on two counts was not supported by substantial evidence. We
reject his argument and affirm the convictions. The remainder of Turpitt’s arguments
pertain to sentencing matters. We agree that two sentencing errors occurred, and will
remand the matter to the trial court for resentencing. At that time, the trial court can also
address the custody credits awarded to Turpitt. His final argument is moot since it deals
only with the abstract of judgment and a new one will have to be prepared after
resentencing.
                     FACTUAL AND PROCEDURAL SUMMARY
       The following four cases were resolved pursuant to a plea bargain. The essence of
the plea bargain was that Turpitt would plead no contest to the charges identified below,
and would be sentenced to a total term of nine years in jail. However, he would be
required to serve only one year in jail and eight years on postrelease supervision.
Stanislaus Superior Court Case No. 1439597
       The original complaint was filed on December 20, 2011, and the second amended
complaint was filed on January 5, 2012. The second amended complaint charged Turpitt
with two counts of auto theft (Veh. Code, § 10851, subd. (a)), receiving stolen property
(Pen. Code, § 496, subd. (a)),1 grand theft (§ 487, subd. (a)), and receiving a stolen
vehicle (§ 496d, subd. (a)). The second amended complaint also alleged as enhancements
that Turpitt had suffered a prior conviction of a serious felony (§ 667, subd. (d)), and he
committed these offenses while on bail for another offense (§ 12022.1).
       On September 18, 2012, Turpitt pled no contest to two counts of auto theft, and
receiving stolen property. The enhancements were stricken, and the grand theft and



1      Unless otherwise indicated, all further statutory references are to the Penal Code.


                                                2.
receiving a stolen vehicle counts were dismissed. He was sentenced to 20 months in
prison.
Stanislaus Superior Court Case No. 1444034
          The complaint was filed on April 19, 2012, and charged Turpitt with attempted
grand theft (§§ 664, 487, subd. (a)), and resisting arrest (§ 148, subd. (a)(1)). The
complaint also alleged as enhancements that Turpitt was on bail on two other cases when
he committed these offenses (§ 12022.1), and he had two prior convictions for serious
felonies (§ 667, subd. (d)).
          On September 18, 2012, Turpitt pled no contest to attempted grand theft and was
sentenced to four months in jail.
Stanislaus Superior Court Case No. 1444516
          The complaint was filed on May 4, 2012, and charged Turpitt with receiving
stolen property (§ 496, subd. (a)). The complaint also alleged Turpitt committed this
offense while on bail on three other offenses (§ 12022.1), and he had suffered a prior
conviction for a serious felony (§ 667, subd. (d)).
          On September 18, 2012, Turpitt pled no contest to the charge and was sentenced to
a concurrent term of two years in jail.
Stanislaus Superior Court Case No. 1444605
          The complaint was filed on May 8, 2012, and charged Turpitt with one count of
possession of counterfeit money (§ 476), and alleged as enhancements that he was on bail
in four other cases when he committed this offense (§ 12022.1).
          On September 18, 2012, Turpitt pled no contest to the charge, and admitted two of
the on-bail enhancements. He was sentenced to an aggravated term of three years for the
charge, plus two years for each of the enhancements, for a total term of seven years.




                                              3.
The New Charges Resulting in a Jury Trial (Stanislaus Superior Court Case
No. 1464736)
       This complaint was filed against Turpitt on October 17, 2013. The information
charged Turpitt with driving with willful disregard for the safety of persons or property of
others while fleeing from a police officer (Veh. Code, § 2800.2, subd. (a)), child
endangerment (§ 273a, subd. (a)), receiving stolen property (§ 496, subd. (a)), possession
of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), and misdemeanor
resisting arrest (§ 148, subd. (a)(1)). The only enhancement alleged Turpitt had suffered
a prior serious felony conviction, which constituted a strike within the meaning of
section 667, subdivisions (b)–(i).2
The Testimony
       These charges arose from two separate incidents. City of Oakdale Police Officer
Andrew Russell Stever described the first incident. He was driving in the city shortly
before midnight when he observed in his rear view mirror a vehicle with an inoperable
brake light. He turned his marked police cruiser around and activated his overhead lights
and siren with the intent of stopping the vehicle for a vehicle code violation. The vehicle
with the inoperable brake light continued driving. The vehicle failed to yield at a stop
sign, exceeded the speed limit at times approaching 80 miles per hour, crossed the
centerline into the lane for oncoming traffic, and slid off the road when the driver lost
control. Several items were thrown from the vehicle during the pursuit. The vehicle
eventually drove off the road and into an orchard. The vehicle turned its lights off and


2       The information alleges Turpitt suffered a prior serious felony conviction within the
meaning of section 1192.7, subdivision (c) and section 667, subdivision (d). Since these
provisions are part of the Three Strikes law, we assume the prosecutor was alleging the prior
conviction constituted a strike within the meaning of that law. Since the trial court sentenced
Turpitt to a second-strike sentence, it appears the parties understood the allegation to be that of a
strike conviction. It is unclear why the information makes an incomplete reference to the Three
Strikes law. Section 667, subdivision (d), merely defines a serious or violent felony for the
purposes of the Three Strikes law, and does not address the consequences to the defendant if the
prior conviction allegation is found true.


                                                 4.
made several turns within the orchard. Stever observed the vehicle slow down and the
driver’s door open while the vehicle continued moving forward. After a few seconds, the
vehicle stopped. Five people (Jacob Turpitt, David Turpitt, Jamie Smith, Candace
Cowell, and Deborah Forrest) exited the vehicle from the passenger side when ordered to
do so by Stever. At the time, Jacob Turpitt was four years old. Deputies searched the
orchard for the driver, but did not locate him.
       Jamie Smith3 testified that on the night in question she was in the vehicle stopped
by Stever in the orchard. She identified Turpitt as the driver of the vehicle during the
pursuit. A child was in the back seat of the vehicle, and Smith was concerned for the
safety of the child. Everyone in the vehicle asked Turpitt to stop the vehicle. Turpitt
jumped out of the vehicle before it stopped in the orchard.
       Candace Graves, also known as Candace Frederick and Candace Cowell, testified
in a very evasive manner. Initially she denied knowing anything about the incident, but
eventually admitted she was in the vehicle on the night in question. However, she
testified she could not recall who was driving the vehicle because she was intoxicated on
prescription drugs and alcohol. She admitted, however, that David Turpitt, Deborah
Forrest, and Jacob Turpitt were in the back seat of the car with her, and that another
woman (Jamie Smith) was in the front passenger seat. She also admitted the driver
jumped from the vehicle in the orchard while the vehicle was still moving, and that she
told the police Turpitt was the driver of the vehicle. She claimed she identified Turpitt as
the driver of the vehicle only because she was told by the police officers that if she did
not identify the driver she would go to jail, and the child (Jacob Turpitt) would be turned
over to child protective services. She named Turpitt only because Smith had told the




3      Smith was in custody at the time of her testimony because she failed to appear in
response to the prosecution’s subpoena in this case.


                                               5.
police he was the driver. The remainder of her testimony was either evasive or critical of
the Oakdale Police Department.
       Stever testified that Graves identified Turpitt as the driver of the vehicle on the
night in question.
       Stanislaus County Deputy Sheriff Veronica Esquivez testified about the second
incident. Approximately one month after the above described pursuit, Esquivez was
dispatched to investigate a suspicious person inside a pickup truck. When Esquivez and
her partner approached the vehicle, she observed numerous items in the bed of the
pickup, and Turpitt in the driver’s seat. As Turpitt exited the vehicle, he attempted to run
away from the officers. They caught him after about 30 to 40 feet.
       Turpitt, who was wearing a black wig, told the officers he obtained the pickup
from a friend named Joe. Turpitt also admitted there was methamphetamine in the
vehicle. Esquivez found three small packages inside the pickup she believed contained
methamphetamine. Subsequent testing by a Department of Justice criminalist established
that the one bag tested contained methamphetamine, and the amount in that one bag was
0.33 grams. Esquivez testified this amount was a usable amount. She also found a pink
wallet containing an identification for Rachelle Keeney, a small bag with hair dye for
men, numerous keys, tools, several baseball caps, and hair extensions. The front license
plate of the pickup looked real, but was made from cardboard and markers.
       When Esquivez searched Turpitt, she found a driver’s license, a paper with a
Social Security number on it, and a bank card all in the name of Gene Barry. Turpitt also
had two Department of Fish and Game licenses in his pocket in the name of Kyle Brown.
       Detective Cody Williams with the Stanislaus County Sheriff’s Office was also at
the scene. In searching the vehicle, he found some horse tack, including two cinches, a
bridle, two blankets, and a “Junior Pro Rodeo” pad. The bridle had custom shanks,
which would not be readily available for purchase, and the pad was a prize won in a



                                              6.
competition. Turpitt claimed the items were his, but he misidentified the bit and the
shanks.
       Travis Caldwell testified that in approximately September 2013, some of his horse
tack was stolen. He identified the items recovered from the pickup being driven by
Turpitt as items of tack that were stolen from him. On cross-examination, Caldwell
explained that in addition to the above items, four saddles, an air compressor, and a
generator were stolen at the same time as the horse tack. Within four days, Dennis Gates
returned the four saddles, although Caldwell did not know from where Gates had
obtained the saddles.
       Defense counsel called Brandy Martin as a witness in defense of Turpitt. Martin
testified that on the night of the vehicle chase, she picked up Turpitt about 9:00 p.m. and
the two spent the night together.
       Christina Turpitt, Turpitt’s younger sister, testified the vehicle involved in the
pursuit was owned by her mother, and her mother would never let Turpitt drive the
vehicle because he was too hard on vehicles. Her mother permitted her brother, David
Turpitt, to drive the vehicle, although David would never allow Turpitt to drive it because
if their mother learned of this fact David would not be allowed to drive the vehicle again.
       Christina also testified that Rachelle Kenney, who is her close friend, reported her
identification as lost or stolen a few months after the above events took place, suggesting
the identification may have been simply lost in a vehicle. The two fishing/hunting
licenses belonged to Turpitt’s grandson.
Verdict and Sentencing
       The jury found Turpitt guilty as charged. A court trial was held on the prior strike
conviction allegation. The primary dispute was whether the prior conviction qualified as
a strike within the meaning of the statute. The trial court concluded it was a strike
conviction, and sentenced Turpitt to a midterm sentence of four years for count 2, and for
the remaining felony counts (counts 1, 3 and 4) a total of 24 months (one-third the

                                              7.
midterm for each count). The trial court then doubled the sentence because of the strike
prior for a total term of 12 years.4
       The trial court next addressed the cases in which Turpitt violated his postrelease
supervision. In case No. 1444605, the trial court sentenced Turpitt to eight months for
the counterfeit charge (one-third the midterm), plus four years for the two on-bail
enhancements. In case No. 1444516, the trial court sentenced Turpitt to eight months
(one-third the midterm) for receiving stolen property, but stayed that sentence pursuant to
the terms of the plea agreement. In case No. 1439597, the trial court sentenced Turpitt to
four months for the attempted auto theft count, eight months for the receiving stolen
property count, and eight months for the other auto theft count, each sentence
representing one-third the midterm sentence for that crime. In case No. 1444034, the trial
court sentenced Turpitt to four months for the attempted grand theft count. The total
sentence for these cases is six years eight months. The total sentence for all cases is
18 years 8 months.
                                        DISCUSSION
I.     Sufficiency of the Evidence
       Turpitt argues the evidence was insufficient for two reasons. First, he asserts the
receiving stolen property count was not supported by substantial evidence because there
was no evidence that he knew the property in question was stolen. Second, he asserts the
child endangerment count was not supported by substantial evidence because there was
no evidence he had control or custody over the child.
       To assess the evidence’s sufficiency, we review the whole record to determine
whether any rational trier of fact could have found the essential elements of the crime or
special circumstances beyond a reasonable doubt. (People v. Maury (2003) 30 Cal.4th


4      The trial court sentenced Turpitt to 30 days for the misdemeanor resisting arrest count to
run concurrently with the sentences on the other counts.


                                                8.
342, 403 (Maury).) The record must disclose substantial evidence to support the
verdict—i.e., evidence that is reasonable, credible, and of solid value—such that a
reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (Id. at
p. 396.) In applying this test, we review the evidence in the light most favorable to the
prosecution and presume in support of the judgment the existence of every fact the jury
could reasonably have deduced from the evidence. (People v. Boyer (2006) 38 Cal.4th
412, 480.) “Conflicts and even testimony [that] is subject to justifiable suspicion do not
justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury
to determine the credibility of a witness and the truth or falsity of the facts upon which a
determination depends. [Citation.] We resolve neither credibility issues nor evidentiary
conflicts; we look for substantial evidence. [Citation.]” (Maury, supra, at p. 403.) A
reversal for insufficient evidence “is unwarranted unless it appears ‘that upon no
hypothesis whatever is there sufficient substantial evidence to support’” the jury’s
verdict. (People v. Bolin (1998) 18 Cal.4th 297, 331.)
       The same standard governs in cases where the prosecution relies primarily on
circumstantial evidence. (Maury, supra, 30 Cal.4th at p. 396.) We “must accept logical
inferences that the jury might have drawn from the circumstantial evidence. [Citation.]”
(Ibid.) “Although it is the jury’s duty to acquit a defendant if it finds the circumstantial
evidence susceptible of two reasonable interpretations, one of which suggests guilt and
the other innocence, it is the jury, not the appellate court that must be convinced of the
defendant’s guilt beyond a reasonable doubt. [Citation.]” (People v. Kraft (2000) 23
Cal.4th 978, 1053–1054 (Kraft).) Where the circumstances reasonably justify the trier of
fact’s findings, a reviewing court’s conclusion the circumstances might also reasonably
be reconciled with a contrary finding does not warrant the judgment’s reversal. (Id. at
p. 1054.)




                                              9.
The Receiving Stolen Property Count
       Turpitt was convicted of receiving the tack that had been stolen from Caldwell.
As relevant here, the elements the prosecution was required to prove beyond a reasonable
doubt were: (1) the defendant received property that had been stolen and (2) the
defendant actually knew the property was stolen at the time he received the property.
(§ 496, subd. (a); CALCRIM No. 1750.) Turpitt challenges the evidence on the second
element. He argues that since the tack had been stolen over one month before it was
found in his possession, some of the property had already been returned to Caldwell, and
not all of items that were still missing when he was arrested were found in the pickup he
was driving required the jury to infer that he did not know the property was stolen when
it was acquired. He also argues no adverse inference that he knew the property was
stolen could be drawn from the fact he fled from officers, since there were numerous
other unrelated crimes for which he was wanted at the time.
       While these facts are undisputed, this argument does not establish there is
insufficient evidence of Turpitt’s guilt. We review the whole record in the light most
favorable to the prosecution to determine if there is reasonable, credible, and solid
evidence of Turpitt’s guilt. When conducting our analysis, we recognize that the
knowledge element of the crime of receiving stolen property is normally based on an
inference from circumstantial evidence. (People v. Alvarado (1982) 133 Cal.App.3d
1003, 1019 (Alvarado).) We are also mindful that where the circumstances reasonably
justify the jury’s findings, we will not reverse the judgment simply because the
circumstances might also be reconciled with a contrary finding. (Kraft, supra, 23 Cal.4th
at p. 1054.)
       When these principles are taken into consideration, it is apparent Turpitt’s
argument simply asks us to reweigh the evidence and conclude the circumstances of his
arrest could be interpreted to suggest he did not know the property was stolen. This case
is, however, a “routine” case as that term is used in Alvarado. (Alvarado, supra, 133

                                            10.
Cal.App.3d at p. 1019.) Turpitt admitted possession of the tack when he was arrested.
Moreover, his possession of the stolen tack arose from suspicious circumstances. He was
parked in an orchard, had disguised his appearance, had in his possession numerous other
items that did not belong to him, and attempted to run when confronted by the police.5
These circumstances were more than sufficient to allow the jury to infer that Turpitt knew
the tack was stolen. The fact there are other possible explanations for this evidence, such
as he ran from the police because there was a warrant for his arrest, or that some of
Caldwell’s stolen items had been returned to him while others were still missing, are all
arguments to be made to the jury to suggest an inference other than knowledge of the
stolen nature of the property. However, the jury rejected this alternative inference, and
our review is limited to determining whether there is sufficient evidence to support the
verdict, and there is no doubt that these circumstances support the inference drawn by the
jury. Accordingly, we reject Turpitt’s argument.
The Child Endangerment Count
       Turpitt was convicted in count 2 with child endangerment in violation of
section 273a, subdivision (a). The elements the prosecution was required to prove
beyond a reasonable doubt to support this conviction were: (1) Turpitt had care or
custody of the child and (2) Turpitt willfully caused, or willfully and as a result of
criminal negligence, permitted the child to be placed in a situation where his person or
health may be endangered. (CALCRIM No. 821.)
       Turpitt’s argument focuses on the first element of the crime. He argues, in
essence, that because his nephew was in the back seat of the vehicle with his father and
two other adults, then he did not have care or custody of the child within the meaning of

5      Turpitt argues in his reply brief the People changed their theory of the case in their
respondent’s brief. He bases this argument on the reference to the several items that belonged to
other people found in his possession when he was arrested. We understand the People to be
arguing that because Turpitt had numerous items in his possession that did not belong to him, the
jury could reasonably infer the tack was stolen.


                                              11.
the statute. To support his argument, Turpitt attempts to distinguish a similar case,
People v. Morales (2008) 168 Cal.App.4th 1075 (Morales). As relevant here, Morales
was driving a vehicle with a 16-year-old girl in the passenger seat. When a police officer
attempted to stop the vehicle for a traffic violation, Morales attempted to evade the police
officer, but eventually hit a telephone pole. Morales argued on appeal his conviction for
violating section 273a, subdivision (a) was not supported by substantial evidence because
he did not have care or custody of the girl. The appellate court rejected the argument.

               “Section 273a does not require that a defendant be related to a child.
       As stated in People v. Cochran (1998) 62 Cal.App.4th 826, 832, ‘[t]he
       terms “care or custody” do not imply a familial relationship but only a
       willingness to assume duties correspondent to the role of a caregiver.’
       There is ‘no special meaning to the terms “care or custody” beyond the
       plain meaning of the terms themselves’ that is indicated or intended.
       [Citation.] Interpreting Cochran, the court in People v. Perez (2008) 164
       Cal.App.4th 1462, 1476, stated: ‘[T]he relevant question in a situation
       involving an individual who does not otherwise have a duty imposed by
       law or formalized agreement to care for a child (as in the case of parents or
       babysitters), is whether the individual in question can be found to have
       undertaken the attendant responsibilities at all. “Care,” as used in the
       statute, may be evidenced by something less than an express agreement to
       assume the duties of a caregiver. That a person did undertake caregiving
       responsibilities may be shown by evidence of that person’s conduct and the
       circumstances of the interaction between the defendant and the child; it
       need not be established by an affirmative expression of a willingness to do
       so.’ (Fn. omitted.)

               “[The girl] was physically in the care of [the] defendant who was
       transporting her when he endangered her life by his conduct. As a
       passenger in his speeding car, [the girl] was deprived of her freedom to
       leave, and she had no control over the vehicle. The jury could reasonably
       conclude that in taking it upon himself to control [the girl’s] environment
       and safety, [the] defendant undertook caregiving responsibilities or
       assumed custody over her while she was in his car. Viewing the record in
       the light most favorable to the trial court’s judgment, we conclude that
       substantial evidence supports the verdict.” (Morales, supra, at pp. 1083–
       1084.)




                                            12.
       The same analysis is applicable here. The child was a passenger in the vehicle
driven by Turpitt when Turpitt decided to attempt to avoid the police. As Turpitt
recognizes in his opening brief, the child and the adults in the vehicle were “basically
stuck and were relatively powerless to control their own environment and safety.”
Turpitt was in complete control of the environment and safety of each of the passengers,
including the child. As in Morales, we conclude that these facts provide substantial
evidence to support the verdict.
       Turpitt attempts to distinguish Morales by arguing he did not assume caregiver
duties because the child’s father was in the vehicle at all times and, thus, the child was in
the care of other adults. However, only Turpitt had control over the vehicle. The other
adults had no choice in Turpitt’s decision to evade the pursuing officers, or his choice to
drive in a dangerous and reckless manner. This fact is evidenced by Smith’s testimony
that all of the passengers urged Turpitt to stop the vehicle. Accordingly, the only adult in
the vehicle who chose to put the child in danger was Turpitt. As such, the jury could
reasonably conclude Turpitt had care or custody of the child within the meaning of the
statute.
II.    Section 654
       Section 654 prohibits multiple punishment for an act that is punishable in different
ways by different provisions of law. (People v. Jones (2012) 54 Cal.4th 350, 356.) The
trial court imposed consecutive sentences on Turpitt for both the child endangerment
count as well as the evading a police officer count. Turpitt argues that because both of
these convictions arouse out of the same act of driving in a reckless and illegal manner
while evading the police that the trial court should have stayed the sentence on one of the
convictions pursuant to section 654. The People concede, and we agree, the trial court
erred. Since the sentence for the evading a police officer count was shorter, we will order
the sentence on that count stayed pursuant to section 654.



                                             13.
III.    The Section 12022.1 Enhancements
        In case No. 1444605, Turpitt pled guilty to the possession of counterfeit money
charge and admitted two “on bail” enhancements pursuant to section 12022.1. When the
trial court sentenced Turpitt in this matter, it sentenced Turpitt to one-third the midterm
for the possession of counterfeit money count, but imposed the full term of two years for
the two enhancements. Turpitt argues, and the People concede, that since the sentence on
this case was subordinate to the other cases, the punishment for these enhancements
should have been imposed at one-third the midterm sentence or, in this case, eight months
each.
        Section 1170.1, subdivision (a) provides that when a trial court is imposing
sentence on a subordinate term, the term “shall consist of one-third of the middle term of
imprisonment prescribed for each other felony conviction for which a consecutive term of
imprisonment is imposed, and shall include one-third of the term imposed for any
specific enhancements applicable to those subordinate offenses.” Accordingly, the trial
court erred when it imposed sentence on these enhancements at the full term of two years.
IV.     Custody Credits and Abstract of Judgment
        Turpitt argues the trial court erred when it awarded him custody credits because
some of the credits were awarded only to a count that was stayed, thus providing him no
actual benefit. The People assert the issue should be addressed in the trial court.
        We have reviewed the issue and conclude that much of Turpitt’s argument is
based on assumptions that we cannot verify in this record since the actual awarding of
custody credits by the trial court was rather perfunctory. Accordingly, we agree with the
People that the matter should be addressed in the trial court, giving full consideration to
the argument made in this appeal.
        Turpitt’s final argument is that the abstract of judgment contains a mistake in that
it added the actual sentences imposed incorrectly. Since a new abstract of judgment must



                                             14.
be prepared because of the sentencing errors identified above, we need not address the
issue.
                                       DISPOSITION
         The convictions are affirmed. The matter is remanded to the trial court for
resentencing so that the sentence on the evading a police officer count may be stayed
pursuant to section 654, and to permit the trial court to sentence Turpitt to one-third the
midterm for the two section 122022.1 enhancements in case No. 1444605. At that time,
the trial court should provide a complete record of the custody credits to which Turpitt is
entitled in this rather complicated sentencing case, and prepare a new abstract of
judgment.


                                                                  _____________________
                                                                        KANE, Acting P.J.
WE CONCUR:


 _____________________
POOCHIGIAN, J.


 _____________________
SMITH, J.




                                             15.
