People v. Howard

[325]

Opinion

EPSTEIN, J.

Elfronte Howard appeals his conviction for unlawfully driving or taking a vehicle, a violation of Vehicle Code section 10851. He claims the court erred in instructing the jury that the lesser offense of joyriding was a specific intent crime. He also claims his sentence of 25 years to life constitutes cruel and unusual punishment. We find no error or abuse of discretion, and affirm the judgment.

Factual and Procedural Summary

On January 30, 1995, Paul Wright parked his El Camino truck on Santa Barbara Street in Pasadena, and went inside his cousin’s apartment on that street. When he returned to his truck sometime later, he saw appellant sitting in the open bed of the truck, with his back against the tailgate, drinking from a liquor bottle. The truck was locked and the windows were closed.

Mr. Wright walked to the driver’s door and asked appellant to get out of the truck. Appellant said he was not going to get out, that he was going wherever Mr. Wright was going. Mr. Wright got into his car, started it, and made a U-turn. He drove down Santa Barbara Street, zig-zagging in an attempt to throw appellant out of the truck bed. Appellant shouted at Mr. Wright that he was going to “bust out” the windshield if Mr. Wright did not stop and get out of the truck. Appellant proceeded to swing a stick at the rear windshield, causing it to shatter. Mr. Wright ran the truck up onto the curb, causing the left tire to blow out. Mr. Wright got out of the truck and ran back toward his cousin’s apartment to call the police, leaving the keys in the truck ignition.

Appellant climbed inside the truck and backed it out into the street. Police officers arrived in time to see appellant back the truck up four or five feet, then get out of the truck and run. Appellant was apprehended while running, and placed under arrest. The stick used to break Mr. Wright’s windshield was found in the street, near the curb.

Appellant was charged by information with carjacking (Pen. Code, § 215, subd. (a)), second degree robbery (Pen. Code, § 211), assault with a deadly weapon or likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)), and unlawfully driving or taking a vehicle (Veh. Code, § 10851, subd. (a).) It was alleged that he personally used a dangerous weapon, a wooden pole (Pen. Code, § 12022, subd. (b)), and that he had suffered three prior serious felony convictions.