People v. Speck ( 2022 )


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  • Filed 2/2/22
    CERTIFIED FOR PUBLICATION
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    THIRD APPELLATE DISTRICT
    (El Dorado)
    ----
    THE PEOPLE,                                                         C093273
    Plaintiff and Respondent,               (Super. Ct. Nos. P19CRF0512,
    P19CRM0463,
    v.                                                      P19CRM0483,)
    RICHARD WALTER SPECK,
    Defendant and Appellant.
    APPEAL from a judgment of the Superior Court of El Dorado County, Kenneth J.
    Melikian, Judge. Reversed.
    Deanna Lynn Lopas, under appointment by the Court of Appeal, for Defendant
    and Appellant.
    Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
    General, Michael P. Farrell, Senior Assistant Attorney General, Eric L. Christoffersen,
    Supervising Deputy Attorney General, Ivan P. Marrs, Deputy Attorney General, for
    Plaintiff and Respondent.
    1
    A jury found defendant Richard Walter Speck guilty of felony vehicle theft (Veh.
    Code, § 10851, subd. (a)) and receiving stolen property (Pen. Code, § 496d) with special
    allegations that the Honda was valued at over $950.1
    Defendant contends on appeal that the trial court prejudicially erred in failing to
    instruct the jury on mistake of fact. We agree and reverse the judgment.
    FACTUAL AND PROCEDURAL BACKGROUND
    Testimony at trial established that on or about September 3, 2019, the chains had
    been cut off the gate at Placer Towing and a 2005 Honda Accord had been taken from the
    yard. Keys to multiple cars on the lot, including the Honda, had been taken from the
    trailer on the site. The Honda was gray, had no body damage or license plates, and had
    an intact interior; it was valued at $2,000. The office manager reported it stolen.
    In the late afternoon of September 8, 2019, El Dorado County Deputy Sheriff
    Evan Richardson saw a Honda Accord with no front license plate. He followed the
    Honda and pulled it over into a grocery store parking lot. As Richardson pulled in behind
    the Honda, it appeared the passenger, later identified as Marqui Fullerton, and driver,
    later identified as defendant, began moving things from the front of the Honda to the rear
    passenger area. The Honda was spray painted matte black.
    Defendant had the keys to the Honda, but the rear license plate did not match the
    car’s vehicle identification number. The deputies searched the car and found its assigned
    license plate in the back seat. In the trunk, the deputies found a large pair of bolt cutters
    and a power drill that matched the dimensions of the screws used to secure the rear
    license plate. The inside of the car contained miscellaneous clothing, tools, and personal
    items, including a bag with women’s clothing.
    1   Further undesignated statutory references are to the Penal Code.
    2
    Richardson testified that defendant told the deputies he had been taking Fullerton
    to the hospital as she was pregnant with his child. He had borrowed the Honda from “a
    guy named Jason” and this was the second time he had borrowed it. The previous time
    he had the car for almost two days and had been pulled over then as well, but without
    apparent consequences. Jason had painted the car and defendant had “touched over that”
    because Jason had not used car paint, but a kind of house paint. Jason had about seven
    other cars at the time he loaned defendant the Honda, and defendant did not ask Jason
    where the Honda came from or if it was stolen. Defendant claimed the spare license plate
    belonged to Fullerton and he had no information about the other plate. When Richardson
    told defendant the car was stolen, he responded: “You’re kidding.” Richardson noted the
    route defendant was traveling did not lead to the hospital, and other affiliated medical
    center offices were closed that day; Fullerton did not appear to need emergency care and
    refused offers to call an ambulance.
    Defendant testified; he denied stealing the Honda and knowing it was stolen or
    had been reported stolen. He claimed he had permission to drive the car and did not think
    it was stolen because it had an ignition that required particular keys and he had been
    given those keys; there were no red flags such as a “ripped ignition” or evidence of hot-
    wiring.
    Defendant’s friend, Jason Rakellah, had an auto body shop and defendant was a
    mechanic. They met in the course of working on cars. Defendant had previously
    borrowed the Honda from Rakellah “a few days prior” and had kept it for a day and a
    half. When Fullerton called defendant and asked him for a ride to her prenatal care
    appointment, his truck was not working, so he again borrowed the Honda from Rakellah.
    He did not know whether the doctor’s office was open; Fullerton told him she had an
    appointment so he assumed it was.
    3
    When defendant had previously borrowed the car it had been painted an “ugly teal
    color” with what appeared to be housepaint. Fullerton and defendant were not supposed
    to be together, as she had a criminal protective order naming him, so he “touch[ed] up”
    the paint job so the car would not draw “unneeded” attention. After he picked up the
    Honda from Rakellah, defendant retrieved tools from his house, and then picked up
    Fullerton. She did not “pack light,” and put several bags of her belongings in the car. He
    had noticed the loose license plate in the back of the car, but assumed it was the car’s
    front plate. He was unaware of the tools in the trunk of the car and had not been able to
    access the trunk earlier because the latch was broken.
    The jury found defendant guilty as charged of both counts and the value
    allegations. The trial court sentenced him to the upper terms of three years in “county
    prison” for unlawfully driving a vehicle and three years for receiving stolen property,
    with sentence on the latter count stayed pursuant to section 654.
    Defendant timely appealed from his sentencing as well as from his subsequent
    restitution order after a contested hearing. After delays in securing the entire requested
    record as well as delays in both parties’ briefing, this case was fully briefed on July 29,
    2021 and assigned to this panel on October 22, 2021.
    DISCUSSION
    Defendant contends the trial court prejudicially erred in denying his request to
    instruct the jury on mistake of fact. (CALCRIM No. 3406.) The Attorney General
    responds that the instructions were adequate as given and that any error was harmless.
    Defendant has the better argument.
    I
    Ruling and Relevant Jury Instructions
    Defense counsel requested the trial court instruct the jury with CALCRIM
    No. 3406 regarding mistake of fact, as to both counts, based on defendant’s testimony
    that he mistakenly but actually believed he had permission from the owner--Jason, whom
    4
    defendant thought was the owner--to drive the car, which he mistakenly but actually
    believed was not stolen.
    CALCRIM No. 3406, Mistake of Fact, provides: “The defendant is not guilty of
     if (he/she) did not have the intent or mental state required to commit
    the crime because (he/she) [reasonably] did not know a fact or [reasonably and]
    mistakenly believed a fact.
    “If the defendant’s conduct would have been lawful under the facts as (he/she)
    [reasonably] believed them to be, (he/she) did not commit .
    If you find that the defendant believed that  [and if you
    find that belief was reasonable], (he/she) did not have the specific intent or mental state
    required for .
    “If you have a reasonable doubt about whether the defendant had the specific
    intent or mental state required for , you must find (him/her) not guilty
    of (that crime/those crimes).”
    As we discuss in more detail, post, the Bench Notes to CALCRIM No. 3406 as
    well as relevant case law make clear that the bracketed language requiring that the lack of
    knowledge or mistaken belief be reasonable is not applicable to crimes requiring specific
    criminal intent, such as the two charges against defendant here.
    Defendant’s jury was provided with the following instructions as relevant to
    defendant’s claim on appeal:
    CALCRIM No. 1820, Unlawful Taking or Driving of a Vehicle (Veh. Code,
    § 10851(a), (b)), as given provides: “The defendant is charged in Count 1 with
    unlawfully taking or driving a vehicle in violation of Vehicle Code section 10851. [¶]
    To prove the defendant is guilty of this crime, the People must prove that: [¶] 1. The
    defendant took or drove someone else’s vehicle without the owner’s consent; [¶] AND
    [¶] 2. When the defendant did so, he intended to deprive the owner of possession or
    ownership of the vehicle for any period of time.”
    5
    CALCRIM No. 1750, Receiving Stolen Property (Pen. Code, § 496, subd. (a)), as
    given provides: “The defendant is charged in Count 2 with receiving . . . a stolen motor
    vehicle in violation of Penal Code section 496[, subd.] (a). [¶] To prove that the
    defendant is guilty of this crime, the People must prove: [¶] 1. The defendant received a
    motor vehicle that had been stolen; [¶] AND 2. When the defendant received the
    vehicle, he knew that the property had been stolen.”
    The trial court initially concluded that the testimony provided by defendant
    constituted substantial evidence of mistake of fact. After hearing argument on the
    People’s objection to defendant’s request for CALCRIM No. 3406, the court ultimately
    agreed with the People’s position that CALCRIM No. 3406 should not be given
    regardless of the substantial evidence finding, ruling in relevant part: “One, it is an
    affirmative defense; it’s in CALCRIM section of general offenses [sic, defenses].
    Duress, threats, necessity, mistake of fact, mistake or entrapment, those are all
    affirmative defenses. If the jury believes Mr. Speck's testimony and they follow the jury
    instruction for CALCRIM [1]820 and CALCRIM 1750, they will find him not guilty. [¶]
    With regards to the 10851 charge, it’s the second element of the offense that when the
    defendant did drive the vehicle, it belonged to someone else, he intended to deprive the
    owner of possession or ownership of the vehicle for any period of time. If he did not
    believe the item to be stolen, he could not be intending to deprive the owner of
    possession and ownership of the vehicle. 1750, 496, the second element is when the
    defendant received the motor vehicle, he knew the property had been stolen. Once again,
    the evidence presented by Mr. Speck can wipe out Element Number 2 in Instruction 1750
    as well as 1820. I think adding 3406 gets a little bit confusing.”
    Although defense counsel continued to argue that the trial court’s refusal to give
    the instruction was “taking away a defense,” namely, that defendant thought he had the
    owner’s consent, which was not explained as a defense in the instructions for the crimes
    themselves, the court disagreed and denied the request for the instruction.
    6
    II
    Analysis
    A. The Instruction Should Have Been Given Upon Request
    We review the trial court’s refusal to give a requested jury instruction de novo.
    (People v. Berryman (1993) 
    6 Cal.4th 1048
    , 1089, overruled on different point by
    People v. Hill (1998) 
    17 Cal.4th 800
    , 823, fn. 1.) A mistake of fact that disproves the
    required intent for a crime is a defense to criminal liability. (In re Jennings (2004)
    
    34 Cal.4th 254
    , 276.) Generally, “a mistake of fact defense is not available unless the
    mistake disproves an element of the offense.” (Id. at p. 277.) Put another way, a mistake
    of fact instruction is only appropriate where the defendant’s mistaken belief negates an
    element of the crime. (People v. Givan (2015) 
    233 Cal.App.4th 335
    , 345.) The trial
    court does not have a sua sponte duty to give a mistake of fact instruction. (People v.
    Lawson (2013) 
    215 Cal.App.4th 108
    , 117-118; see also People v. Anderson (2011)
    
    51 Cal.4th 989
    , 997 [as to defense the defendant acted without intent, but accidentally].)
    The court is, however, required to give such an instruction on request, where a defendant
    presents substantial evidence on mistake of fact and the instruction is legally correct.
    (Anderson, at pp. 996-997.) Whether the offense is a general or specific intent crime,
    “the defendant’s mistaken belief must relate to a set of circumstances which, if existent or
    true, would make the act charged an innocent act.” (Lawson, at p. 115.)
    Defendant’s claimed mistake of fact was that he thought Rakellah was the
    Honda’s owner. Because he had taken the car with permission of the owner, or so he
    thought, whether he possessed the requisite intent (to permanently deprive the actual
    owner) would be irrelevant. Also, if defendant mistakenly thought Rakellah was the
    owner, there is no way he would know the car was stolen under the facts as presented at
    trial, because he had received the car from Rakellah himself, the rightful owner per
    defendant’s mistaken belief. If credited, defendant’s claim of mistake as to the Honda’s
    owner--that it was Rakellah--would have negated the intent and knowledge requirements
    7
    of both offenses, and made the acts underlying the charged conduct, even if proven in all
    respects, innocent acts. Thus, defendant was entitled to receive the benefit of the
    pinpoint jury instruction outlining the mistake of fact defense, CALCRIM No. 3406.
    The trial court found there was substantial evidence to support the instruction, and
    the Attorney General wisely does not argue on appeal that this finding was erroneous.
    Nor does he argue the instruction was legally insufficient. Instead, he argues the
    instruction was confusing and duplicative. Although the Attorney General cites case law
    that outlines the well-established proposition that confusing and duplicative instructions
    are not generally required to be given, his explanation as to why this general rule trumps
    the specific instructional requirements that we have outlined above, which clearly apply
    to this particular situation, falls short. As defendant argues in his reply, contrary to the
    Attorney General’s contention, the intent elements in the two instructions given are not
    “synonymous” with the defense outlined by CALCRIM No. 3406.
    The instructions that set forth the elements of the two charges of conviction
    (CALCRIM Nos. 1820 and 1750) required the jury to find knowledge and criminal
    intent. However, neither instruction informed the jury how it could consider the facts
    presented here--facts that the trial court properly found constituted substantial evidence
    of defendant’s mistaken belief that Rakellah was the Honda’s owner--in the context of
    theft such that the belief, even if unreasonable, could negate knowledge and intent.
    CALCRIM No. 3406 would have provided the jury with this information, telling the jury
    that it could consider defendant’s mistake of fact, even if unreasonable, in determining
    whether he harbored the requisite intent or mental state required to commit the crimes.
    We agree with defendant that CALCRIM No. 3406 “is not redundant but rather
    goes beyond the standard instructions by providing the necessary legal framework to
    assess how evidence of [defendant’s] belief with respect to lawful possession relates to
    the elements of knowledge and intent.” (See People v. Russell (2006) 
    144 Cal.App.4th 1415
    , 1430-1433 (Russell) [mistake of fact defense was implicated by the defendant’s
    8
    claim that he did not have the requisite knowledge that the motorcycle was stolen because
    at all times he held a good faith belief that it had been abandoned; thus substantial
    evidence supported instructing the jury on that defense and failure to do so was
    prejudicial error], disapproved on another point by People v. Covarrubious (2016) 
    1 Cal.5th 838
    , 874, fn. 14.) Under the applicable law that we have outlined above, the trial
    court erred in declining to give the applicable pattern instruction despite concluding
    substantial evidence supported the defense of mistake of fact.
    B. The Error was not Harmless
    Error in failing to give a mistake of fact instruction is reviewed under People v.
    Watson (1956) 
    46 Cal.2d 818
    , 836; that is, asking the question of whether upon review of
    the entire record it appears reasonably probable defendant would have obtained a more
    favorable result absent the error. (Russell, supra, 144 Cal.App.4th at p. 1431.)
    The Attorney General first argues the error was harmless because “substantial
    evidence supported the jury’s determination that [defendant] knew the vehicle was
    stolen.” This argument misstates the standard. In evaluating what a jury is likely to have
    done in the absence of the error we “ ‘may consider, among other things, whether the
    evidence supporting the existing judgment is so relatively strong, and the evidence
    supporting a different outcome is so comparatively weak, that there is no reasonable
    probability the error of which the defendant complains affected the result.’ [Citation.]
    ‘There is a reasonable probability of a more favorable result within the meaning of
    Watson when there exists “at least such an equal balance of reasonable probabilities as to
    leave the court in serious doubt as to whether the error affected the result.” ’ ” (Russell,
    supra, 144 Cal.App.4th at p. 1432.)
    Mistake of fact negates an entire element of the offense, thus “defendant needed
    only to raise a reasonable doubt regarding the existence of that element.” (Russell, supra,
    144 Cal.App.4th at p. 1433.) “For general intent crimes, the defendant’s mistaken belief
    must be both actual and reasonable, but if the mental state of the crime is a specific intent
    9
    or knowledge, then the mistaken belief must only be actual.” (People v. Lawson, supra,
    215 Cal.App.4th at p. 115; see Russell, at pp. 1425-1426.) Unlawfully driving a vehicle
    with the intent to temporarily or permanently deprive the owner of possession under
    Vehicle Code section 10851 is a specific intent crime. (People v. Jaramillo (1976)
    
    16 Cal.3d 752
    , 756, fn. 4.) Although receiving stolen property is a general intent crime,
    “[w]ith regard to the knowledge element, receiving stolen property is a ‘ “specific intent
    crime” ’ as that phrase is used in sections 22, subdivision (b) and 28, subdivision (a).”
    (Russell, at p. 1425.) Thus, as relevant here, a successful defense of both offenses
    required only that defendant’s mistaken beliefs be actual, not reasonable.
    Defendant’s claimed mistakes of fact were that he thought he had lawfully
    borrowed the car from Rakellah and that he did not know it was stolen. The jury was not
    instructed that defendant’s mistake as to Rakellah’s ownership of the car and his lack of
    knowledge that the car was stolen, even if unreasonable, negated the necessary intent as
    to both offenses. This intent was the primary issue in dispute as to both charges.
    As to the unlawful driving charge, the prosecution argued defendant’s specific
    intent for each offense was established if defendant knew the car was stolen when he
    drove it. The prosecution emphasized the condition of the car’s paint job, defendant
    spray painting the car to avoid unwanted attention, the tools in the trunk, the wrong
    license plate on the rear of the car, and license plates in the backseat, including the
    correct license plate. The evidence supporting defendant’s claim that he believed he had
    permission to drive the car from Rakellah and did not know the car was stolen was not so
    comparatively weak that there is no reasonable probability of a different result had the
    jury been correctly instructed. Defendant testified he borrowed the car from his friend,
    Rakellah, who had an auto body shop. The car was poorly painted and missing a front
    plate, but that was not necessarily inconsistent with coming from a shop; in fact the car’s
    condition made it more likely to be a loaner car. Defendant, himself a mechanic, was
    given the specific key to the vehicle by Rakellah. The car did not have a “ripped”
    10
    ignition or show any indication of having been hot-wired. At the scene, defendant
    expressed surprise when Richardson informed him the car was stolen. A few days
    earlier, defendant had previously been stopped while driving the car and there was no
    evidence presented that any information surfaced during that stop indicating the car was
    stolen. As correctly found by the trial court, this was substantial evidence supporting
    defendant’s claim of mistake of fact. It is not so comparatively weak when compared to
    the evidence supporting the judgment as to merit our excusing the error.
    Without citing any additional authority, the Attorney General adds a short
    argument for harmless error that again asserts the given instructions “sufficiently
    addressed intent” and concludes that the jury necessarily found the “requisite, wrongful
    intent” with its guilty verdicts. Although we acknowledge that under certain
    circumstances, the fact that the jury necessarily found the required elements of the crimes
    at issue can render an error harmless because “ ‘the factual question posed by the omitted
    instruction was necessarily resolved adversely to the defendant under other, properly
    given instructions’ ” (People v. Wright (2006) 
    40 Cal.4th 81
    , 98), that is not the situation
    here. As we have explained, the fact that the jury found guilt without the benefit of the
    instruction outlining a supported defense to both charges--that is, while deprived of the
    required guidance as to how to evaluate proof of critical elements of both disputed
    charges--does not signal harmlessness here.
    The mistake of fact instruction “would have clarified the knowledge element by
    ensuring that the jury understood that a good faith belief, even an unreasonable good faith
    belief, would negate one of the elements of the offense. The instruction[] also would
    have drawn the jury’s attention to facts that could raise a reasonable doubt about
    defendant’s guilt. In our view, instructions on the applicable defenses would have been
    more valuable to the jury than instructions regarding the elements of the offense plus
    attorney argument that the prosecution had not proven the knowledge element because
    defendant believed [Rakellah owned the car and had given him permission to drive it].
    11
    When the court instructs on the law, it provides a framework for the jury’s analysis and
    judicial recognition of the applicable defenses.” (Russell, supra, 144 Cal.App.4th at
    p. 1433.) Here, as in Russell, because there was substantial evidence supporting
    defendant’s claim of mistake of fact and no instruction clarifying that even an
    unreasonable belief that the car was rightfully owned by Rakellah and correspondingly,
    not stolen, negated elements of both offenses, “ ‘there exists “at least such an equal
    balance of reasonable probabilities as to leave the court in serious doubt as to whether the
    error affected the result.” ’ ” (Russell, at p. 1432.)
    We conclude it is reasonably probable defendant would have obtained a more
    favorable result had the jury been correctly instructed. We therefore reverse the
    judgment.2
    DISPOSITION
    The judgment is reversed.
    /s/
    Duarte, J.
    We concur:
    /s/
    Raye, P. J.
    /s/
    Hoch, J.
    2 Because we reverse the judgment, we need not and do not address defendant’s claim
    regarding his costs of probation.
    12
    

Document Info

Docket Number: C093273

Filed Date: 2/2/2022

Precedential Status: Precedential

Modified Date: 2/3/2022