1 Filed 3/21/13 P. v. Carpenter CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,
Plaintiff and Respondent,

v.
MATTHEW WARNER CARPENTER,
Defendant and Appellant. 2d Crim. No. B240110 (Super. Ct. No . 2010042486) (Super.Ct. No . 2011011137) (Ventura County)

Matthew W. Carpenter appeals from the ju dgment entered after his conviction by a jury of two counts of unlawfu lly driving or taking a vehi cle (counts 1 & 6 - Veh. Code, § 10851, subd. (a)); 1 driving in willful disregard for th e safety of others while attempting to elude a pursuing peace officer (count 2 - § 2800.2, subd. (a)); driving on the wrong side of the road while eluding a pursuing pe ace officer (count 3 - § 2800.4); and reckless driving (count 8 - § 23103, subd. (a)). In a se parate court trial, a ppellant was found guilty of driving while his license was suspended fo r a conviction of driving under the influence (count 9 - § 14601.2). He was sentenced to prison for four years, four months. Appellant contends that the trial court (1) erroneously instru cted the jury, (2) violated Penal Code section 654 by imposing a concurrent sentence on count 3, and (3) erroneously ordered him to pay restitution to Ventur a County for damage that its vehicles

1 All statutory references are to the Vehicle Code unless otherwise stated.2 had incurred during the pursuit of appellant. We modify the judgment to stay execution of the sentence imposed on count 3. We affirm the judgment as modified.
Facts The information alleged that appellant's offenses were committed on May 13 and June 19, 2010. The facts pertaining to th e May 13 offenses (counts 6 and 8) are not relevant to the issues on appeal. Accordingl y, we summarize only the facts pertaining to the June 19 offenses (c ounts 1,2, 3, and 9). On May 13, 2010, Shawnae Bowen parked he r Ford F-150 pickup truck in front of her house. The next morning, the truck was missing. Bowe n filed a stolen vehicle report with the police.
In the afternoon on June 19, 2010, Deputy Carlos Cendejas and Deputy Scott Sedgwick of the Ventura County Sheriff's Of fice were on patrol together in separate marked vehicles. Deputy Cendejas saw Bo wen's truck and entered its license number
into his Mobile Data Terminal. The inform ation he received showed that the truck was
stolen.
The driver of the truck was the sole occupant of the vehicle. Deputy Sedgwick identified appellant as the driver. He tes tified that appellant was "well-known at the police station through prior contacts, ar rests, [and] probation searches." Cendejas and Sedgwick pulled behind the truck and activated their vehicles' lights. The truck did not stop, so th ey activated their sirens. A high-speed pursuit ensued. During the pursuit, appellant violated several provisions of the Vehicle Code. He made an illegal U-turn, exceeded the speed limit by driv ing at 70 miles per hour, ran a red light, and drove on the wrong side of the road. The truck entered a golf course parking lot, crashed through a wooden fence, and drove onto the grassy area of the golf course. The pursuit c ontinued along a dirt road on the east side of the golf course. A metal gate "was taken out by the [truck]." One of the truck's headlights "was actually attached to th e gate."3 Toward the end of the pursuit, the depu ties drove through thick shrubbery that damaged their vehicles. They lost sight of the truck for one or tw o minutes. When they found the truck, it was abandoned "in the bushes." Appellant did not testify. The defense theory was that the People had failed to prove that appellant was the driver of the truck. Instruction on Unlawfully Dr iving or Taking a Vehicle For the two counts of unlawfully driving or taking a vehicle (§ 10851, subd. (a)),
the trial court instructed th e jury pursuant to CALCRIM No . 1820: "To prove that the defendant is guilty of this crim e, the People must pr ove that: [¶] 1. Th e defendant took or
drove someone else's vehicle without th e owner's consent; AND [¶] 2. When the defendant did so, he intended to deprive th e owner of possession or ownership of the vehicle for any period of tim e." Appellant contends: "CAL CRIM No. 1820 is defective because [it does not require] that the defendan t have knowledge that the vehicle has been
taken or driven without the owner's consent. Knowledge should be considered an
element of the offense of unlawful taking or driving a vehicle." We disagree. " 'The elements necessary to establish a violation of section 10851
of the Vehicle Code are the defendant's driv ing or taking of a vehicle belonging to another person, without the owner's consent, a nd with specific intent to permanently or temporarily deprive the owner of title or possession. [Citations.] [Citation.] Accordingly, knowledge that th e vehicle was stolen is not an element of the offense. Such knowledge is merely one of various a lternative factors evid encing an intent to deprive the owner of title and possession. [Citation.]" ( People v. Green (1995) 34 Cal.App.4th 165, 180; accord, People v. O'Dell (2007) 153 Cal.App.4th 1569, 1574; see
also De Mond v. Superior Court of Los Angeles County (1962) 57 Cal.2d 340, 344 ["The gist of the offense proscribed by Vehicle Code , section 10851, is th e taking or driving of
a vehicle without the owner's consent and with the specific intent to deprive the owner, permanently or temporarily, of title to or possession of that vehicle"].) Even if guilty knowledge we re an element of the o ffense, the instruction's
omission of this element would have been harmless beyond a reasonable doubt. A4 reasonable trier of fact woul d have concluded that appella nt's flight from the pursuing deputies and abandonment of the truck had be en motivated by know ledge that he was driving the vehicle withou t the owner's consent.
CALCRIM No. 2181 For the offense of driving in willful di sregard for the safety of others while attempting to elude a pursui ng peace officer (§ 2800.2, subd. (a)), the trial court instructed the jury pursuant to CALCRIM No. 2181. The instruction provided that driving in willful disregard for the safety of others "includes, but is not limited to, causing damage to property while driv ing or committing three or more violations that are each assigned a traffic violation point. [¶] Speeding, failure to stop at a Red Light intersection, driving on the wrong side of th e road, are each assigned a traffic violation point." In his reply brief, appellant ack nowledges that the "the jury was correctly instructed that [these three traffic violations ] could constitute a willful disregard." But he argues that the instruction was deficient becaus e it "did not define the requisite elements of the three traffic violations. Thus, the in struction relieved the pr osecution of its burden of proving all of [the] elements of the ch arged offense beyond a reasonable doubt in violation of due process."
The instruction was not deficient because th e nature of the traffic violations was self-evident and required no further elaborati on. Even if the trial court had erred, the error would have been harmless beyond a reasonable doubt. The instruction provided that willful disregard for the safety of othe rs is established by the commission of three
traffic violations or "causing damage to property while driving." It is undisputed that, during the pursuit, appellant damaged a wood en fence and metal gate by crashing into
them.
Penal Code Section 654 The trial court concluded that, pursuant to Penal Code section 654, punishment for driving on the wrong side of the road while eluding a pursuing peace officer (count 3 - § 2800.4) was barred because the offense was based on the same conduct as driving in willful disregard for the safety of others while attempting to elude a pursuing peace5 officer (count 2 - § 2800.2, s ubd. (a)). The trial court imposed a three-year prison term on count 3 to run concurrently with a three-year prison term imposed on count 2. Appellant contends, and the Pe ople concede, that the impositio n of a concurrent sentence was erroneous. We accept the concession. " 'It has long been established that the imposition of concurrent senten ces is precluded by section 6 54 [citations] because [under such a sentence] the defendant is deemed to be subjected to the term of both sentences although they are served simu ltaneously.' [Citations.]" ( People v. Duff (2010) 50 Cal.4th 787, 796.) "The sentencing court should stay execution of sentence pending completion of service of senten ce upon the greater offense, with the stay to become permanent upon completion of th at sentence. [Citations.]" ( Ibid .)
Restitution During the pursuit, Deputy Cendejas's and De puty Sedgwick's patrol vehicles were damaged. The trial court ordere d appellant to pay to Ventura County the cost of repairing the vehicles - $3,970.65. Appellant mainta ins that Ventura Coun ty is not entitled to
restitution because it was not a direct victim of appellant's crimes of attempting to elude a pursuing peace officer. Penal Code section 1204, subdivision (k)(2) provides that a governmental entity is entitled to restitution only if it is a "d irect victim." "[A] statute 'permitting restitution to entities that are "direc t" victims of crime [ limits] restitution to
entities against which the [defendant's] crimes had been committed" - that is, entities that are the "immediate objects of the [defendant's ] offenses." [Citation.]' [Citations.]" ( People v. Runyan (2012) 54 Cal.4th 849, 856.) "Whether [Ventura County] can be a 'dir ect victim' under section 1202.4 is a legal issue of statutory constructi on, which we review under an independent or de novo standard. [Citation.] [¶] In undertaking this analysis, we are mindful that the California Constitution gives trial courts broad power to impose rest itution on offenders. (Cal. Const., art. I, § 28, subd. (b)[(13)].) Article I, section 28, subd ivision (b)[(13)(A)] declares unequivocally that ' all persons who suffer losses' due to crime have the right to restitution. (Italics added.) Accordingly, th e courts have held th at restitution statutes6 should be interpreted broadly and liberally. [Citations.]" ( People v. Saint-Amans (2005) 131 Cal.App.4th 1076, 1084.) Interpreting Penal Code section 1204, su bdivision (k)(2) "broadly and liberally," we conclude that Ventura County was a direct victim of appellant's crimes of attempting to elude a pursuing peace offi cer. The crimes were comm itted against county employees - the pursuing deputies - while they were acti ng within the scope of their employment and driving county-owned vehicles. The object of the crime was to escape arrest by the deputies. In view of the county's involv ement as both employer of the deputies and owner of the vehicles used by them to pursu e appellant, it follows that the county was a
direct victim. We reject appellant's argument that the restitution award was unauthorized "because the damage to the sh eriff['s] vehicles was not a necessary element of [his] conviction [of eluding a pursui ng peace officer]." (Capitalization omitted.) Appellant has failed to cite authority supporting this argument. If appellant were correct, then a victim who was injured during a robbery could not obtain res titution for his injury if the defendant were convicted only of robbery, sinc e injury is not a nece ssary element of that
offense. Such a result would conflict with the constitutional provis ion "that all persons who suffer losses as a result of criminal activity shall have the right to seek and secure restitution from the persons convicted of the cr imes causing the losses they suffer." (Cal. Const., art. I, § 28, subd. (b)(13)(A).) There is no question here that the damage to the county-owned vehicles was caused by the deputies' pursuit of appellant. Disposition Pursuant to Penal Code section 654, the ju dgment is modified to stay execution of the three-year sentence imposed on count 3, driving on the wr ong side of the road while eluding a pursuing peace office r (§ 2800.4). The stay sha ll remain in effect pending completion of service of the th ree-year sentence imposed on count 2, driving in willful disregard for the safety of others while attempting to elude a pursuing peace officer (§ 2800.2, subd. (a).) The stay shall become perman ent upon completion of that sentence. As so modified, the judgment is affi rmed. The trial court is directed to prepare7 an amended abstract of judgment and to tr ansmit a certified copy to the Department of
Corrections and rehabilitation.
NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P.J.

PERREN, J.8 Jeffrey G. Bennett, Judge
Superior Court County of Ventura

________________ ______________

Wayne C. Tobin, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney Genera l, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Yun K. Lee, Thomas C. Hsieh, Deputy Attorneys Ge neral, for Plaintiff and Respondent.