People v. Robinson CA4/3 ( 2021 )

Filed 11/18/21 P. v. Robinson CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G060201
v. (Super. Ct. No. C1909409)
SAMUAL WAYNE ROBINSON, JR., OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Santa Clara County,
Sharon A. Chatman, Judge. Affirmed.
Maggie Shrout for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Jeffrey M. Laurence, Assistant Attorney General, Catherine A. Rivlin
and Ann P. Wathen, Deputy Attorneys General, for Plaintiff and Respondent.
A jury determined Samual Wayne Robinson, Jr., was guilty of unlawfully
taking/driving a vehicle while having a prior conviction and possessing ammunition. The
court sentenced Robinson to three years in prison. On appeal, Robinson alleges the court
violated his due process right by allowing the prosecutor to admit prejudicial evidence of
prior convictions. He also complains the court improperly instructed the jury. We affirm
the judgment.
FACTS
In February 2019, Ramon Zamora purchased a 1998 Toyota Tacoma truck
from his friend Daniel Soto. Zamora used the truck for his construction/plumbing job
and kept approximately $10,000 worth of tools in the truck’s bed. On April 28, 2019,
Zamora parked his truck on a street in San Jose. When he returned approximately one
hour later, the truck was gone. Because the title of the truck was still in Soto’s name,
both Zamora and Soto went to the police station to report the truck stolen. However, they
left the station without making a police report because there was a long wait, and they
had to return to work. They told other friends about the theft including Rafael Tapia and
Edgar Zuniga.
On May 8, 2019, Zuniga was working at the Pick-N-Pull auto parts store in
San Jose. At approximately 10 a.m., he saw Robinson driving what he believed to be
Zamora’s stolen truck. Zuniga, who was standing in the store’s parking lot, watched
Robinson drive into the parking lot, briefly exit the vehicle, and then drive away. Zuniga
called Zamora, who in turn contacted Soto and Tapia and asked them to meet him at
Pick-N-Pull’s parking lot.
Tapia arrived first at the Pick-N-Pull and saw Lisa Brigman driving the
stolen truck into the parking lot. When Tapia approached Brigman and asked if the truck
was hers, she appeared nervous and drove into a parking space. Tapia watched Brigman
exit the truck and walk over to a red Ford Mustang parked nearby. Robinson was
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working under the Mustang’s open hood. Zamora saw Robinson was attempting to jump-
start the Mustang’s battery.
Robinson walked towards Tapia, who by this point had been joined by
Zamora. Robinson asked what was going on. Tapia saw Zamora was holding the truck’s
pink slip, and he told Robinson to look at the document because it proved the truck
belonged to Zamora. Robinson replied he was not sure about Tapia’s claim because
“Rickey” let him borrow the truck.
Robinson walked towards the truck, telling the men he installed a new
battery and he was going to “take it by force or by any means.” Robinson opened the
driver’s door, unlocked the hood, and then walked to the front of the truck to open the
hood. Tapia saw Robinson begin to disconnect the battery, prompting Tapia and Zamora
to call the police. Robinson told the men the battery in the back of the truck belonged to
him. Zamora told Robinson he could not take anything.
The 911 operator told Zamora that she could not send a police officer until
Soto, the registered owner of the truck, was present. While they were waiting, Tapia
stopped a police car that was driving past on the street. Tapia told the officers about the
stolen truck and that the perpetrators were nearby. He pointed to Robinson and Brigman,
who looked in the direction of the police officers, and then started to briskly walk away.
The officers drove through the parking lot to “cut them off” and stop them from leaving.
Robinson and Brigman complied with the officer’s orders to stop.
The officer who searched Brigman’s bag found a lighter that could also be
used as a glass punch, a wooden club, a box of ammunition, and two knives. He also
discovered documents and medicine with Robinson’s name. A different officer noticed
the truck’s ignition had been damaged. The police arrested Robinson and Brigman,
interviewed the witnesses, and conducted an in-field indentification. Zamora and Tapia
identified Robinson and Brigman. Zuniga was reluctant to participate, afraid to identify
anyone. Officers arranged for Zuniga to sit in the patrol car’s back seat, promising no
3
one could see him through the reflective plexiglass. Zuniga then indicated Robinson was
driving the truck the first time he saw the vehicle, and Brigman was driving it the second
time he saw it.
After searching the red Mustang, officers discovered multiple keys, a
crowbar, and three boxes of ammunition. Zamora paid $500 to replace his truck’s
ignition and suffered the financial loss of his missing tools. Zamora reported the truck’s
hood and spark plugs were damaged.
On August 8, 2019, the Santa Clara County District Attorney filed an
amended information, charging Robinson with the unlawful taking and driving of a
vehicle with a prior conviction (Veh. Code, § 10851, subd. (a), Pen. Code, § 666.5, subd.
(a), count one);1 buying or receiving a stolen vehicle with a prior conviction (Pen. Code,
§§ 496d, subd. (a), 666.5, subd. (a), count two); possession of ammunition by a
prohibited person (Pen. Code, § 30305, subd. (a)(1), count three); and possession of
burglar tools (Pen. Code, § 466, count four).
At trial, Zuniga identified Robinson as the person who he saw driving the
stolen truck the first time he saw it in the Pick-N-Pull parking lot. He added that
Robinson looked different to him, explaining Robinson was thinner, his hair was pulled
back instead of down, and his face appeared different. Zuniga admitted he was afraid to
come to court but agreed to after learning a warrant would be issued for his arrest if he
did not make an appearance.
Brigman, testifying pursuant to an immunity agreement, stated she and
Robinson had been in a relationship for seven years. She testified that on the day of the
incident she met Robinson at a restaurant in San Jose. When she arrived, she saw
Robinson had a Toyota Tacoma truck and a red Mustang. She had never seen those
vehicles before. After talking for several hours at the restaurant, Robinson told Brigman
1 All further statutory references are to the Vehicle Code, unless otherwise
indicated.
4
he needed to go to Pick-N-Pull to get a new key for the Mustang. She recalled Robinson
had the Mustang towed to the Pick-N-Pull and she drove the truck there. When she
arrived, two men approached her and said the truck was stolen. Brigman testified she
told the men that her boyfriend borrowed the truck. She walked over to the Mustang and
then watched Robinson speak with the men. She recalled the police arrived
approximately 20 minutes later. Brigman told the police the bag she took from the
Mustang did not belong to Robinson. She claimed the methamphetamine, pipe, and
ammunition belonged to her. On cross-examination, Brigman admitted she frequently
used methamphetamine and used it the morning of the incident. Brigman admitted she
might have seen the truck the night before when she saw Robinson.
Over Robinson’s objections, the court permitted the prosecution to
introduce evidence through live witnesses about prior incidents taking place two years
earlier. The jury heard about the following two crimes:
(1) On May 10, 2017, Ronald N.’s 2001 white GMC truck was stolen from
a parking lot in San Jose. The following month, Sheriff’s Deputy Vanessa Eugenio
pulled over Robinson driving the GMC truck after determined it was stolen. She testified
about how she arrested Robinson for possessing a stolen vehicle. She heard Robinson
claim his friend Dewit gave him the vehicle. Robinson indicated he and his girlfriend
were using the truck for a place to sleep. Engenio searched the vehicle and found a metal
rod that she believed, based on her training and experience, was a tool used to break into
locked vehicles.
(2) On November 3, 2017, Roger G.’s 2017 Toyota Tacoma truck was
stolen from the parking lot of the Toyota dealership where he worked. Later that month,
Officer Ramon Sanchez and his partner were sent to a restaurant in San Jose to
investigate a “suspicious vehicle.” They found Robinson sitting in the driver’s seat of the
stolen Tacoma truck. Sanchez testified Robinson claimed he did not know the truck was
5
stolen and he borrowed it from someone he knew, Steven Keffer. Sanchez arrested
Robinson.
The parties stipulated Robinson was convicted for unauthorized driving or
taking of a vehicle relating to the incidents involving the GMC truck and the Toyota
Tacoma truck discussed above.
In addition, the parties stipulated Robinson had two other convictions for
unlawfully taking/driving a vehicle. The jury did not hear testimony or details regarding
these crimes. Instead, the court admitted exhibit No. 13 consisting of conviction
packages. The court asked counsel to read aloud the stipulation Robinson had
convictions for unlawfully taking or driving vehicles belonging to Christopher B. and
Carmen F. In addition, the parties stipulated Zamora was previously convicted of
providing false information to an officer in 2019.
Thereafter, the jury convicted Robinson of count one (unauthorized use of a
vehicle) and count three (possession of ammunition). The jury acquitted Robinson of
count four (possession of burglar tools). As instructed by the trial court, the jury
rendered no verdict on the alternative offense (count two, receiving a stolen vehicle) and
the court dismissed this count. The court sentenced Robinson to three years in prison.
DISCUSSION
I. Prior Uncharged Acts
Robinson contends the trial court erred by admitting evidence about his
four prior convictions because the crimes were dissimilar to the charged crimes. We
conclude he is correct regarding two of the prior convictions, however, the error does not
require reversal because it is not reasonably probable Robinson would have obtained a
more favorable result absent this error.
A. Applicable Law
Evidence of prior criminal acts is ordinarily inadmissible to show a
defendant’s disposition to commit such acts. (Evid. Code, § 1101, subd. (a).) But such
6
evidence may be admissible when relevant to prove a fact in issue, such as motive,
opportunity, intent, knowledge, identity, or the existence of a common design or plan.
(Evid. Code, § 1101, subd. (b).)
“The degree of similarity necessary to support admissibility ‘depends on
the purpose for which the evidence was presented.’ [Citation.] The least degree of
similarity between the uncharged act and the charged offense is required to support a
rational inference of intent; a greater degree of similarity is required for common design
or plan; the greatest degree of similarity is required for identity. [Citations.] ‘In order to
be admissible to prove intent, the uncharged misconduct must be sufficiently similar to
support the inference that the defendant “‘probably harbor[ed] the same intent in each
instance.’”’ [Citation.]” ‘“[T]he recurrence of a similar result . . . tends (increasingly
with each instance) to negative accident or inadvertence or self-defense or good faith or
other innocent mental state, and tends to establish (provisionally, at least, though not
certainly) the presence of the normal, i.e., criminal, intent accompanying such an act
. . . .”’ [Citation.]” (People v. Gutierrez (2018) 20 Cal.App.5th 847, 859 (Gutierrez).)
Even if evidence of a prior crime is admissible under Evidence Code
section 1101, it may be excluded under Evidence Code section 352 if it is unduly
prejudicial. Evidence Code section 352 gives trial courts discretion to exclude evidence
if its probative value is “substantially outweighed by the probability that its admission
will (a) necessitate undue consumption of time or (b) create substantial danger of undue
prejudice, of confusing the issues, or of misleading the jury.”
“We review the trial court’s determination of admissibility of evidence
under Evidence Code sections 1101, subdivision (b), and 352 for abuse of discretion.
[Citations.]” (Gutierrez, supra, 20 Cal.App.5th at p. 860.) “[T]he court’s exercise of
discretion will not be disturbed on appeal except upon a showing that it was exercised in
an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage
of justice.” (People v. Brown (2011) 192 Cal.App.4th 1222, 1233.)
7
“[S]tate law error in admitting evidence is subject to the traditional Watson
test: The reviewing court must ask whether it is reasonably probable the verdict would
have been more favorable to the defendant absent the error. [Citations.]”2 (People v.
Partida (2005) 37 Cal.4th 428, 439.) Federal due process is offended only if admission
of the irrelevant evidence renders the trial fundamentally unfair. (Ibid.)
B. Pertinent Facts
Before turning to the merits, we will briefly review the facts leading up to
the court’s ruling granting the prosecutor’s pretrial motion in limine to admit evidence of
Robinson’s four prior convictions. In the motion, the prosecutor described the facts
underlying two prior 2017 offenses, which we need not repeat in detail because this
evidence was presented at trial and already summarized in this opinion. Suffice it to say,
the police caught Robinson driving Ronald N.’s GMC truck and Roger G.’s Toyota truck
without their permission.
The motion in limine also contained details about the other two convictions.
In 2015, a CHP officer saw Robinson driving a Dodge Pickup but not wearing a seat belt.
The officer conducted a traffic stop and noticed Robinson was towing a GMC SUV with
expired registration tags. The officer determined the Dodge truck was owed by Carmen
F. and had been reported stolen from San Jose the prior week. After being arrested,
Robinson stated he was admitted to the medical center for overnight treatment and his
girlfriend and “Henry Jr.” picked him up in the Dodge truck and took him to a nearby
restaurant. Henry Jr. asked Robinson to take the truck and unload the GMC being towed.
Robinson agreed to give a different group of friends a ride in the truck, and they were
pulled over and taken into custody. His friend reported she saw Robinson start the truck
with a screwdriver. When she asked Robinson about it, he responded he was fixing the
ignition for Henry Jr.
2 People v. Watson (1956) 46 Cal.2d 818.
8
The second conviction related to Robinson’s arrest in June 2017, when he
was caught driving Christopher B.’s stolen white Cadillac SRX. When San Jose police
officers initiated a traffic stop, Robinson parked the vehicle, got out, and started to walk
away. Robinson had a key for the vehicle and claimed he was “setup” by someone
named Koda. Christopher B. stated he kept a spare key in the Cadillac’s center console.
The prosecutor argued evidence about the prior convictions was admissible
under Evidence Code section 1101, subdivision (b). The prosecutor asserted the
“evidence will be short as the People intend to prove up the prior incidents via one officer
and one civilian for two of the prior incidents, and via the admission of [c]ertified
documents for the other two prior incidents.” Robinson objected, maintaining the
evidence was not probative as to his intent or knowledge because in all the cases
Robinson denied knowing the vehicles were stolen. Counsel argued, “Effectively, what
the people are going to be presenting is the absence of evidence.” He noted that in some
of the prior cases, Robinson had keys to the vehicles as opposed to the current case where
the ignition was damaged. In addition, unlike the prior cases, law enforcement did not
see Robinson drive the stolen truck.
The court stated it reviewed the prior uncharged conduct and determined
the evidence was material as required under Evidence Code section 1101, subdivision (b).
It commented that because Robinson pleaded not guilty, “all elements of every single
charge and allegation is at issue . . . [including] knowledge and intent.” Turning to the
analysis required under Evidence Code section 352, the court stated the prior convictions
were not too remote and there was a high degree of certainty. It commented, “All four
appear to be convictions. And it doesn’t get any more certain than that.” The court
added any concerns that the evidence may be confusing or misleading could be remedied
by appropriate jury instructions. Finally, the court stated there were similarities in that
Robinson appeared to be interested in “bigger sort[s] of vehicles” in his prior offenses
and current charges. The court noted that in all the offenses Robinson claimed the stolen
9
vehicles belonged to a friend or someone he knew. The court indicated the facts did not
have to be identical and there were sufficient similarities to admit the four prior incidents
to prove intent, knowledge, and common scheme and plan.
As mentioned, the jury heard testimony regarding two of the priors and the
parties stipulated Robinson had a total of four prior convictions for the unauthorized
taking/driving of a vehicle. In closing argument, the prosecutor commented the defense
would have the jury believe Robinson “is here because of no fault of his own, that he’s a
perfectly innocent man and that we the people, the government is just out to get someone.
Someone who has harbored the exact same intent and knowledge on four separate
occasions. With the proof of the conviction to show it.” The prosecutor also commented
that when examining whether Robinson had the intent to deprive the owner of this truck,
the jury could “look back on the prior uncharged conduct.” The prosecutor stated,
“[Y]ou can take the intent that . . . Robinson was convicted of having–because those were
convictions–and transfer that intent to consider whether or not, okay, did he have intent in
this case, did he intend to not give this truck back to this owner for any period of time?”
The prosecutor also stated the convictions related to whether Robinson knew the truck
was stolen, stating the following: “[T]he fact that . . . Robinson has these convictions,
he’s had these interactions with police [and] what it means to know that property is
stolen. He’s been there before. You can use that past experience to determine whether or
not he had the knowledge in this case that he knew the truck was stolen.”
The court gave the CALCRIM No. 375 instruction, discussing the use of
evidence of uncharged offense to prove intent, knowledge, common plan, etc. Relevant
to this case, the court instructed as follows:
“If you decide that the defendant committed the uncharged offenses, you
may, but are not required to, consider that evidence for the limited purpose of deciding
whether:
10
“A. The defendant acted with the intent to temporarily deprive the owner
of his vehicle in this case;
“B. The defendant knew the property was stolen when he allegedly acted
in this case; [¶] or
“C. The defendant had a plan or scheme to commit the offense alleged in
this case.
“In evaluating this evidence, consider the similarity or lack of similarity
between the uncharged offenses and the charged offense.
“Do not consider this evidence for any other purpose except for the limited
purpose of intent, knowledge, or common plan.
“Do not conclude from this evidence that the defendant has a bad character
or is disposed to commit crime.
“If you conclude that the defendant committed the uncharged offenses, that
conclusion is only one factor to consider along with all the other evidence. It is not
sufficient by itself to prove that the defendant is guilty of Counts 1 and 2. The People
must still prove each charge beyond a reasonable doubt.”
C. Analysis
The Attorney General argues the prior incidents were sufficiently similar to
the charged conduct to prove intent, knowledge, and common scheme/plan. In discussing
the allegedly similar facts, we find it puzzling the Attorney General refers, in part, to
information that was not presented to the jury but found in the clerk’s transcript (as part
of the prosecutor’s pretrial motion in limine). Two of the four prior convictions were
submitted to the jury through exhibit No. 13, and not live testimony. However, exhibit
No. 13 merely consisted of two conviction packets, containing the plea and sentencing
forms, but no information about the underlying facts of the crime.
Consequently, for two of the four convictions, the jury did not know
Robinson claimed someone gave him permission to drive vehicles that were stolen. The
11
jury was unaware of the dissimilarities; that for one of those convictions Robinson had a
key to the vehicle, and for the other he used a screwdriver to start the engine.
Without details about the factual similarities of the uncharged and charged
offenses, we fail to see how the prior convictions had any probative value on the issue of
intent, knowledge, or common scheme/plan. To the contrary, the only probative value of
the prior offense evidence (exhibit No. 13) was to impermissibly suggest Robinson had a
propensity to unlawfully take and drive vehicles.
As for the other two convictions, which the jury did hear testimony about,
they are similar only in that in each case Robinson claimed someone let him borrow the
vehicle, suggesting he did not know it was stolen. There is case authority holding
evidence of this prior conduct can be relevant to the issue of intent for the current
offense. (People v. O’Dell (2007) 153 Cal.App.4th 1569, 1578 (O’Dell).) As our
Supreme Court explained, “the doctrine of chances teaches that the more often one does
something, the more likely that something was intended, and even premeditated, rather
than accidental or spontaneous.” (People v. Steele (2002) 27 Cal.4th 1230, 1244.)
Accordingly, this evidence was admissible at least on the issue of intent. The same
cannot be said for the issue of common scheme/plan because the fact patterns of each
crime differ. Other than the fact all the convictions involved large vehicles (a fact not
particularly noteworthy), there were important dissimilarities between the convictions
and the current offense. For example, Robinson possessed the vehicle’s keys and did not
damage the vehicles in the two cases presented to the jury. Whereas in this case the
ignition, spark plugs, and hood were damaged. The probative value of these two prior
offenses to support an inference of criminal scheme/plan was minimal.
“Despite our concerns, we need not resolve whether admission of the [prior
convictions] amounted to an abuse of discretion because, even if error, it is not
reasonably probably [Robinson] would have obtained a more favorable verdict absent the
alleged error. [Citations.]” (Gutierrez, supra, 20 Cal.App.5th at p. 862; People v. Carter
12
(2005) 36 Cal.4th 1114, 1152 [error in failing to exclude evidence of uncharged
misconduct does not require reversal “unless it is reasonably probable the outcome would
have been more favorable to defendant had such evidence been excluded”].)
In order to prove count 1, unlawful taking or driving of a vehicle, the
prosecution was required to establish Robinson drove the vehicle and intended to
temporarily deprive Zamora of possession of his truck. (§ 10851, subd. (a), hereafter
section 10851(a).) The first element of the offense required evidence Robinson drove
someone else’s vehicle. This was proven by witness testimony, not the prior convictions.
Zuniga testified he saw Robinson driving the stolen truck. Although Zuniga was
reluctant to identify Robinson before or at trial, the jury was in the best position to
determine his credibility as a witness. The trial court instructed the jury that the
testimony of one witness was sufficient to prove any fact.3 We have no reason to second
guess the credibility call of the trier of fact. (People v. Sanchez (2003) 113 Cal.App.4th
325, 330.)
In addition, there was circumstantial evidence supporting the conclusion
Robinson drove the vehicle, which had been stolen two weeks prior. Brigman testified
Robinson told her that he borrowed the truck from a friend. She saw Robinson with the
vehicle the night before their arrest, as well as the following day at a restaurant, when
Robinson asked her to drive it to Pick-N-Pull. Tapia testified Robinson said it was a
borrowed truck, and he needed to retrieve his batteries from under the hood and from the
bed. The jury could reasonably infer Robinson at some point drove the vehicle he
“borrowed,” especially after installing a battery to make it drivable.
3 The court gave CALCRIM No. 301, which states, “Unless I instruct you
otherwise, the testimony of only one witness can prove any fact. Before you conclude
that the testimony of one witness proves a fact, you should carefully review all the
evidence.”
13
As for the next element, there was undisputed proof the truck belonged to
someone other than Robinson. Soto was the registered owner and had agreed to sell the
vehicle to Zamora, who took physical possession of it. Neither Soto nor Zamora gave
Robinson permission to drive the vehicle.
With respect to the last element, there was ample evidence Robinson
intended to temporarily deprive the owner of possession. Soto and Zamora testified the
vehicle was taken from the street corner without their permission. The reasons why they
were unsuccessful in reporting the truck stolen was due to time constraints and work
schedules, not a change of heart. When Robinson was confronted about the pink slip and
ownership rights, Robinson did not immediately agree to give up possession of the truck.
Instead, he made excuses and claimed ownership of the vehicle’s batteries, one of which
was connected to the engine. It was not until the police arrived that Robinson
relinquished control and tried to quickly make his exit, in the opposite direction from the
police. His flight suggested a consciousness of guilt. And while evidence of a tampered
ignition reflects the method by which the vehicle was taken, it is a factor in combination
with other evidence that supports a finding Robinson intended to deprive the owner of
possession.
Lastly, due to the nature of the charges a least one of the prior convictions
would have been admitted. Counts one and two had prior conviction enhancement
allegations. Thus, the jury would have learned about Robinson’s prior conviction for
violating section 10851(a), which was the same as the charged offense.
Based on all of the above, we conclude it was not reasonably likely that a
different result would have occurred if the proposed evidence had been excluded. Even if
the challenged evidence was inadmissible, any resulting error was harmless. The trial
court instructed the jury that it must not “conclude from this evidence that the defendant
has a bad character or is disposed to commit crime.” (CALCRIM No. 375.) We presume
the jury followed the trial court’s instruction. (People v. Sanchez (2001) 26 Cal.4th 834,
14
852.) This instruction sufficiently countered any prejudice resulting from the evidence of
defendant’s prior uncharged vehicle thefts.
II. Instructional Error
Robinson asserts the court erred by instructing the jury with CALCRIM
No. 1820 because it “allowed the jury to convict [him] in the absence of his knowledge
that the truck was stolen, in violation of due process.” The argument consists of several
layers. Robinson maintains CALCRIM No. 1820 failed to include the required element
that he knew the vehicle was stolen. Robinson claims this first error was compounded by
the court’s decision to give CALCRIM No. 376 regarding possession of recently stolen
property. He argues this instruction lessened the prosecutor’s burden of proof because
the instruction told the jurors that if they determined the truck was recently stolen, a
conviction required any other slight evidence tending to prove his guilt. He concludes
slight evidence “was not a valid substitute for proof beyond a reasonable doubt that . . .
Robinson knew the truck was stolen.” (Italics added.)
Before addressing the merits of the issue, we reject the Attorney General’s
assertion the matter was forfeited because counsel did not object. “[T]here is no
forfeiture of an instructional issue on appeal where, as here, the issue raised asserts of
violation of substantial constitutional rights. [Citation.]” (O’Dell, supra,
153 Cal.App.4th at p. 1574 [considered issue whether arguments concerning CALCRIM
No. 376 forfeited when defendant charged with section 10851(a)].)
Our standard of review is well established. “An appellate court reviews the
wording of a jury instruction de novo and assesses whether the instruction accurately
states the law. [Citation.] The court reviews instructions in context of the entire charge
of jury instructions rather than in artificial isolation. [Citation.]” (O’Dell, supra,
153 Cal.App.4th at p. 1574.)
We turn first to Robinson’s challenge to CALCRIM No. 1820. One of the
elements necessary to establish a violation of section 10851(a), was Robinson drove or
15
took a vehicle with the specific intent to temporarily deprive the owner of title and
possession. Contrary to Robinson’s contention, the crime does not require knowledge the
vehicle was stolen, only the intent to deprive someone of possession. “Knowledge that
the vehicle was stolen, while not an element of the offense, may constitute evidence of the
defendant’s intent to deprive the owner of title and possession. [Citation.]”4 (O’Dell,
supra, 153 Cal.App.4th at p. 1574, italics added.)
As noted by our Supreme Court, a section 10851(a) conviction can have a
nontheft factual basis. (People v. Page (2017) 3 Cal.5th 1175, 1181.) “[S]ection 10851
does not proscribe theft, but rather taking or driving a vehicle with or without the intent
to steal it.” (Ibid.; [holding section 10851 conviction eligibility for resentencing under
Proposition 47 depended on whether there was theft or nontheft factual basis].) The
Supreme Court referred to its prior decision, People v. Garza (2005) 35 Cal.4th 866, 871,
where it “recognized the distinction between the theft and nontheft forms of the . . .
section 10851 offense.” (Page, supra, 3 Cal.5th at p. 1183.) “In that case, we considered
whether dual convictions under . . . section 10851 and Penal Code section 496,
subdivision (a) (receiving stolen property) violated the statutory rule against convicting a
person for both stealing and receiving the same property. We concluded the answer
depended on the basis for the . . . section 10851 conviction—whether it was for stealing
the automobile or for taking or driving it in another prohibited manner[.] . . . ‘[U]nlawful
driving of a vehicle is not a form of theft when the driving occurs or continues after the
theft is complete . . . . Therefore, a conviction under section 10851(a) for posttheft
driving is not a theft conviction . . . .’ [Citation.] The same is true when a defendant
acted with intent only to deprive the owner temporarily of possession. Regardless of
whether the defendant drove or took the vehicle, he did not commit auto theft if he lacked
4 In this case, the prosecutor proceeded on the theory Robinson drove the
vehicle solely with the intent to temporarily, not permanently, deprive the owner of title
or possession.
16
the intent to steal. But if the defendant was convicted under . . . 10851[(a)], of unlawfully
taking a vehicle with the intent to permanently deprive the owner of possession, he has,
in fact, ‘suffered a theft conviction.’ [Citation.]” (Ibid.)
In People v. Green (1995) 34 Cal.App.4th 165, 179-180, the court
considered whether the trial court should have instructed on joyriding, the lesser offense
of section 10851. In that case, the trial court modified the jury instruction to remove any
reference to taking the vehicle, requiring the jury to determine if defendant had the
requisite mental intent to deprive the owner of possession, “based solely on the fact he
was found driving the vehicle.” (Id. at p. 176.) The appellate court concluded the trial
court erred in failing to fully instruct “on all aspects of sections 10851(a) and 499b
[joyriding].” (Id. at p. 179.)
In making this determination, the court in Green examined the many ways
a jury could apply section 10851(a): “We believe the Legislature intended that the
language of section 10851(a) relating to driving is to be applied under circumstances
where: (1) the person either obtains lawful possession of the vehicle and thereafter forms
the specific intent to deprive the owner of possession; or, (2) obtains the vehicle under
circumstances which indicate the perpetrator has knowledge, absent his or her actual
taking of the vehicle, that the use or operation of the vehicle is depriving the owner of
possession of the vehicle. Had there been evidence appellant knew the vehicle had
previously been stolen, it would have supported a finding of the second circumstance.”
(Id. at pp. 179-180.) The court in Green also considered whether there was substantial
evidence for violation of section 10851(a). In listing the elements necessary for the
offense, the court stated “knowledge that the vehicle was stolen is not an element of the
offense. Such knowledge is merely one of various alternative factors evidencing an
intent to deprive the owner of title and possession. [Citation.]” (Id. at p. 180.) In light of
the above case authority, we conclude the court did not have a sua sponte duty to modify
CALCRIM No. 1820 to add a “knowledge the vehicle was stolen” element to the crime.
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Turning to the next layer of Robinson’s argument, we are unpersuaded by
his theory the court erred in giving CALCRIM No. 376. His argument is comprised of
two parts. First, Robinson asserts the trial court revoked its promise to clarify CALCRIM
No. 376 applied only to count 2, and gave an unmodified instruction stating it applied to
both counts 1 and 2. We have reviewed the reporter’s transcript and read it differently
than Robinson.
Defense counsel asked the court to not give CALCRIM No. 376 because it
was not “substantively useful to the jury.” He argued evidence regarding Robinson’s past
convictions and Robinson’s statements at the scene of the crime was “enough for a jury
to make its own determination” and the instruction made a “confusing statement of the
burden of proof.” The prosecutor countered the instruction specifically related to count 2
(Pen. Code, § 496d [possession stolen property]).
The court ruled as follows: “It’s appropriate that count 2 is a theft related
crime . . . . I completely understand [defense counsel’s] concern particularly . . . the
second sentence, when it indicates, ‘However, if you also find that supporting evidence
tends to prove his guilt, you may conclude that that evidence insufficient to prove he
committed counts 1 or 2.’ [¶] I’m going to go ahead and give the instructions, but I am
concerned about that language too. And I think—and I will be submitting something to
the committee indicating that’s very troubling because they’re basically telling the jury
what to do. And that’s the challenge when you have these sorts of instructions. [¶] And
so I first want to thank [defense counsel] for pointing that out, but I’ll go ahead and give
it.” Thus, this portion of the transcript suggest the court was unwilling to omit or modify
the instruction.
In response to the trial court’s ruling, defense counsel asked if the
instruction could it be given “as it relates to the [Penal Code section] 496 [offense].” The
court responded, “And I will give it only as it relates to the [Penal Code section] 496
[offense].” We do not read this statement as a promise to modify the instruction. As
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noted by the prosecutor, CALCRIM No. 376 relates to count 2 (Pen. Code, § 496d)).
When the trial court’s statement is read in context, it is apparent that the court was
unwilling to omit or modify the instruction, wishing only to alert the judicial committee
the instruction should be reviewed. This was a correct decision. The instruction does not
improperly create a permissive inference of guilt.
As aptly noted by the Attorney General, this very same issue was
considered in O’Dell, supra, 153 Cal.App.4th 1569, and People v. Lopez (2011)
198 Cal.App.4th 698 (Lopez). In both cases, defendant’s burden of proof challenges to
CALCRIM No. 376 were rejected.
In the O’Dell case, defendant asserted CALCRIM No. 376, violated his
Sixth Amendment right to have each element of the charged offense proved beyond a
reasonable doubt. (O’Dell, supra, 153 Cal.App.4th at p. 1573.) He argued the
instruction shifted the burden to him and “permitted the jury to disregard defense
evidence of innocent possession and permitted the jury to draw an impermissible
inference of guilt without sufficient basis in fact.” (Id. at p. 1574.) In that case,
defendant was charged with unlawfully taking/driving a vehicle in violation of
section 10851(a) and the court instructed the jurors with CALCRIM No. 376. The
opinion does not suggest defendant was charged with any other theft-related crime, such
as Penal Code section 496d.
The court examined the required elements for a section 10851(a)
conviction, including defendant’s intent to deprive the owner of possession. It reasoned
knowledge the vehicle was stolen “may constitute evidence of the defendant’s intent to
deprive the owner of title and possession. [Citation.] [¶] Possession of recently stolen
property itself raises a strong inference that the possessor knew the property was stolen;
only slight corroboration is required to allow for a finding of guilt. [Citation.] This
principle, applicable to theft offenses, applies as well to the unlawful driving of a vehicle.
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[Citation.]” (O’Dell, supra, 153 Cal.App.4th at p. 1574.) It concluded, CALCRIM No.
376 instructed “in accordance with this principle.” (Ibid.)
“The language of CALJIC No. 2.15, similar to CALCRIM No. 376 . . . [has
been] repeatedly approved in the face of constitutional challenges. [Citations.] [¶] . . .
The difference between the two instructions is that the CALCRIM instruction is easier to
understand; it does not alter the underlying law in any way. [¶] Our Supreme Court has
indicated that the slight corroboration that permits an inference that the possessor knew
that the property was stolen may consist of no explanation, of an unsatisfactory
explanation, or of other suspicious circumstances that would justify the inference.
[Citation.]” (O’Dell, supra, 153 Cal.App.4th at pp. 1574-1575, fn. omitted.) The court
rejected defendants’ argument CALCRIM No. 376 should be given only in instances of
unexplained possession of the stolen item. We agree with and adopt this court’s well-
reasoned analysis.
We find further support for the use of CALCRIM No. 376 in the Lopez
case. That court considered and rejected a due process challenge to the instruction in the
context of a burglary case. (Lopez, supra, 198 Cal.App.4th at p. 710.) It disagreed with
defendant’s contention the instruction’s reference to “slight” supporting evidence reduces
the prosecution’s burden of proof. Robinson makes the same claim in this case. He is
wrong.
“CALCRIM No. 376 makes it quite apparent that the ‘slight’ supporting
evidence is not to be considered in isolation, but together with all of the other evidence
for purposes of determining whether there is proof beyond a reasonable doubt that the
defendant committed robbery. [Citation.] The instruction expressly requires the jury to
be ‘convinced that each fact essential to the conclusion that the defendant is guilty of that
crime has been proved beyond a reasonable doubt.’ (CALCRIM No. 376.) Thus,
CALCRIM No. 376 does nothing to diminish the prosecution’s burden of proof. (See,
e.g., People v. Letner (2010) 50 Cal.4th 99, 189 [CALJIC No. 2.15 contains no
20
suggestion that the jury need not find that all of the elements of the crime have been
proved beyond a reasonable doubt].)” (Lopez, supra, 198 Cal.App.4th at p. 711.) The
court rejected defendant’s argument CALCRIM No. 376 was “reasonably susceptible of
being misinterpreted to lower the prosecution’s burden of proof concerning burglary,
especially when that instruction is viewed in light of all of the court’s instructions—
specifically, CALCRIM No. 220, which requires the jury to find that the prosecution has
proved the defendant guilty beyond a reasonable doubt.” (Id. at p. 712.) In the case
before us, the court gave the jurors CALCRIM No. 220. “‘“We credit jurors with
intelligence and common sense [citation] and do not assume that these virtues will
abandon them when presented with a court’s instructions. [Citations.]” [Citation.]’
[Citation.]” (Id. at p. 710.)
DISPOSITION
The judgment is affirmed.
O’LEARY, P. J.
WE CONCUR:
MOORE, J.
FYBEL, J.
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