People v. Lipsett

Filed 2/10/14

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE, F065496 Plaintiff and Respondent, (Tuolumne Super. Ct. v. No. CRF34641)

RONALD W. LIPSETT, JR., OPINION Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Tuolumne County. James A. Boscoe, Judge. John F. Schuck, 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, Stephen G. Herndon and Alice Su, Deputy Attorneys General, for Plaintiff and Respondent. -- BACKGROUND Defendant was charged with one count each of carjacking (count I - Pen. Code,1 § 215, subd. (a)), vehicle theft (count II - Veh. Code, § 10851, subd. (a)) and making a

1 All subsequent statutory references are to the Penal Code unless otherwise noted.

criminal threat (count III - § 422). The information contained firearm use allegations as to each count. (§ 12022, subd. (a)(1).) It further alleged defendant suffered a prior serious or violent felony conviction. (§§ 667, subds. (b)-(i), 667.5, subd. (b).) Defendant was convicted on all substantive counts. The jury was unable to reach verdicts on the firearm use allegations. The trial court found the prior conviction allegations true. The court sentenced defendant to the upper term on each count as follows: 9 years on count I (carjacking), a stayed term of 3 years count II (unlawful taking of a vehicle) and a concurrent term of 3 years on count III (criminal threats). The 9-year term was doubled pursuant to section 667, subdivisions (b)-(i). A consecutive term of 5 years and a stayed term of 1 year were imposed for the prior conviction findings. (§§ 667, subd. (a), 667.5, subd. (b).) The total aggregate term was 23 years. TRIAL EVIDENCE On the evening of September 6, 2010, David Smith’s dirt bike was parked outside his bedroom window. At around 4:00 a.m. on September 7, Smith heard a large truck backing up on his driveway. A male jumped out of the passenger seat and ran to Smith’s bike. Smith realized his bike was being stolen, so he went outside and confronted the man who was now dragging the bike. Smith and the man got into “a tug of war over the bike.” Smith yelled, “ ‘Drop the bike[]’ ” several times. Smith’s German shepherd dog came outside. The man who was dragging Smith’s bike screamed at the top of his lungs: “ ‘Shoot him; shoot him; shoot the dog….’ ” He said “shoot him” or “shoot the dog” several times, “meaning…six, eight, ten times.” The driver of the truck exited the vehicle and started to approach Smith. The driver lifted his arm up, holding what “looked like a gun.” Smith described it as a small, black gun that “looked to be a revolver[.]” The driver pointed it at Smith’s stomach. Smith ran away. He saw his wife and child standing at the front door, and asked his wife