Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County, No. INF059928, Richard A. Erwood, Judge.
Peter Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Gil Gonzalez and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI J.
A jury found defendant Timothy Lee Belle guilty of vehicle theft with a prior conviction for vehicle theft (Veh. Code, § 10851, subd. (a); Pen. Code, § 666.5, subd. (a)) (count I); receiving a stolen vehicle (Pen. Code, § 496d, subd. (a)) (count II); and evasion of a peace officer while driving in willful or wanton disregard for the safety of persons or property (Veh. Code, § 2800.2) (count III). Defendant thereafter admitted that he had sustained two prior prison terms. (Pen. Code, § 667.5, subd. (b).) Defendant was sentenced to a total term of five years eight months in state prison.
All further statutory references are to the Vehicle Code unless otherwise indicated.
On appeal, defendant contends (1) there was insufficient evidence to sustain the jury’s verdict on count III; (2) he was improperly convicted of vehicle theft (count I) and receiving the same stolen vehicle (count II); and (3) the trial court prejudicially erred in restricting defense counsel’s closing argument. We agree that defendant’s conviction for receiving stolen property must be reversed but reject defendant’s remaining contentions and affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
In May 2007, defendant’s father George Belle, Sr. (George Sr.), George’s wife Violet, and Violet’s 18-year-old stepson George Belle, Jr. (George Jr.) resided in a home on Hidalgo Street in Desert Hot Springs. Defendant did not live with them, nor was he welcome at their house. A year earlier, defendant had lived with his father and Violet at a residence on Estrella Avenue in Desert Hot Springs. In 2007, George Sr. and Violet still owned the Estrella residence, but the house was vacant.
George Sr. and Violet jointly owned a 1969 Mercury Cougar and had left one set of keys to the car in a dresser drawer in the master bedroom. On May 10, 2007, between 7:30 and 8:00 a.m., George Sr. and Violet went to work in another car. They left the Mercury in their garage and closed the garage door. They also locked the doors and windows to their home. George Jr. had not been home the night before, and he did not have keys to the residence.
When George Sr. and Violet returned home that night, the keys to the Mercury and the car were gone. In addition, the house had been ransacked, and there was damage to the sliding glass door. It appeared as though a screwdriver or some type of object had been jammed in the door. The window in George Jr.’s room was unlocked, and the screen was bent. Violet reported the theft to the police. Neither Violet nor her husband had given anyone permission to take the vehicle.
The following morning, May 11, around 9:00 a.m., Violet drove around the neighborhood looking for the Mercury. She spotted the car at a stop sign and noticed defendant driving the vehicle. She immediately called the police. A couple of hours later, Violet saw the Mercury in front of her vacant house on Estrella Avenue.
Officer Ray Voeltz of the Banning Police Department was dispatched to the location around 10:00 a.m. En route to Estrella Avenue, Officer Voeltz received a call noting the Mercury was traveling westbound on Cahuilla Avenue. A marked patrol car, with its overhead lights on and its siren activated, was pursuing the Mercury. Officer Voeltz joined the pursuit. When the Mercury reached Ocotillo Road, Officer Voeltz became the primary pursuing officer, pulling in behind the Mercury.
Officer Voeltz activated his overhead lights and siren. The Mercury continued down Ocotillo Road at 45 to 50 miles per hour in a 30-mile-per-hour zone. The Mercury failed to stop at the posted stop signs at Hacienda Avenue and Two Bunch Palms Trail and continued at speeds of 55 to 60 miles per hour in a 30-mile-per-hour zone. The car again failed to stop at the posted stop sign at Ironwood Drive and at a second posted stop sign at Two Bunch Palms Trail. The car continued to drive at excessive speeds in the residential area and where an elementary school was in session. Several vehicles had to swerve out of its way.
When the Mercury reached the end of Verbena Drive, it continued onto a dirt field. From the field, it turned right to go north on Mesquite and failed to stop at the posted stop sign at the corner of Mesquite and Desert View Avenue. The vehicle continued to drive at excessive speeds and failed to stop at another stop sign. At one point, on Estrella Avenue, the vehicle was within one or two feet of nearly colliding with a patrol car.
When the vehicle reached the Belles’ vacant house on Estrella Avenue, it slowed to five miles per hour, and defendant jumped out from the driver’s side of the vehicle, ran through some neighborhood yards, and disappeared. A passenger in the vehicle also jumped out and was running after the vehicle, which was rolling. When Officer Voeltz saw defendant run away, Officer Voeltz recognized him from prior contacts. An arrest warrant was issued, and defendant was later arrested.
The defense was primarily one of mistaken identity and motive to fabricate. The defense attempted to show that Violet and Officer Voeltz had mistakenly identified defendant. The defense also showed that Violet had previously dated defendant before she married defendant’s father.
II
DISCUSSION
A. Insufficiency of the Evidence
Defendant contends there was insufficient evidence to support the jury’s verdict on count III, felony evasion of a peace officer. We disagree.
“We often address claims of insufficient evidence, and the standard of review is settled. ‘A reviewing court faced with such a claim determines “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” [Citations.] We examine the record to determine “whether it shows evidence that is reasonable, credible and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.” [Citation.] Further, “the appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.”’ [Citations.]” (People v. Moon (2005) 37 Cal.4th 1, 22.)
“In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. [Citation.]” (People v. Young (2005) 34 Cal.4th 1149, 1181.) “‘Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.’ [Citation.]” (People v. Guerra (2006) 37 Cal.4th 1067, 1141, quoting People v. Maury (2003) 30 Cal.4th 342, 403.)
Section 2800.2 states, “(a) If a person flees or attempts to elude a pursuing peace officer in violation of Section 2800.1 and the pursued vehicle is driven in a willful or wanton disregard for the safety of persons or property, the person driving the vehicle, upon conviction, shall be punished by imprisonment in the state prison, or by confinement in the county jail for not less than six months nor more than one year.... [¶] (b) For purposes of this section, a willful or wanton disregard for the safety of persons or property includes, but is not limited to, driving while fleeing or attempting to elude a pursuing peace officer during which time either three or more violations that are assigned a traffic violation point count under Section 12810 occur, or damage to property occurs.”
Section 12810 describes the point values given to various offenses. Subdivision (f) of that section assigns a point to “any other traffic conviction involving the safe operation of a motor vehicle upon the highway....”
In this case, the prosecution relied on four Vehicle Code violations to show the requisite three points under section 2800.2, subdivision (b). These were (1) speeding, a violation of section 22350; (2) failure to stop at a stop sign, a violation of section 22450, subdivision (a); (3) failure to give an appropriate signal before turning when the turn could affect another vehicle, a violation of section 22107; and (4) failure to give an appropriate signal at least 100 feet before turning, a violation of section 22108. If section 2800.2, subdivision (b) is applicable, willful or wanton disregard for the safety of persons or property is established for purposes of section 2800.2, subdivision (a).
Defendant argues that the testimony of Officer Voeltz was insufficient to establish two of the four violations relied on to show a violation of section 2800.2, subdivision (b). He concedes there was sufficient evidence of the first two violations, namely, sections 22350 and 22450; however, he argues there was no evidence introduced to prove either section 22108 or 22107 was violated. We reject defendant’s argument. Officer Voeltz testified that defendant made a right turn on the corner of Verbena Drive and Estrella Avenue. When defendant made this turn, he came within one to two feet of a patrol car and almost collided with it. From this testimony, a reasonable jury could infer that defendant failed to signal before turning, and that his failure to do so could have (and did) affect another vehicle. (See People v. Logsdon (2008) 164 Cal.App.4th 741, 745-747; § 22107.)
Moreover, even if there was insufficient evidence concerning the unlawful turning movements, Officer Voeltz testified that defendant failed to stop at seven different stop signs and traveled well over the speed limit on four different residential streets. As discussed above, section 2800.2, subdivision (b) provides that “willful or wanton disregard for the safety of persons or property” can be established by proof that, during a pursuit, the defendant commits “three or more violations that are assigned a traffic violation point count under Section 12810.” (Italics added.) The section does not require three or more violations of separate Vehicle Code sections. Substantial evidence here established that defendant committed 11 separate one-point violations, well over the three required for his conduct to be willful and wanton as a matter of law. (See, e.g., People v. Springfield (1993) 13 Cal.App.4th 1674, 1678 [the defendant fled through a residential area at an unsafe speed, ran numerous stop signs, and drove on the sidewalk but appeared to slow down to look for traffic at each intersection]; People v. Pinkston (2003) 112 Cal.App.4th 387, 389-390 [the defendant fled through a residential area at 50-60 miles per hour, ran stop signs and red lights, and stopped only when he struck a retaining wall].)
In addition to the moving violations, the prosecutor also briefly argued that defendant’s conduct during the entire course of the pursuit showed the requisite willful and wanton disregard. The officer’s testimony was sufficient evidence to support the jury’s implied conclusion that defendant’s driving was in willful and wanton disregard for the safety of persons under section 2800.2, subdivision (b), either generally or after consideration of the moving violations.
B. Convictions for Counts I (Vehicle Theft) and II (Receiving Stolen Vehicle)
The jury convicted defendant in count I of unlawful driving or taking a vehicle in violation of Vehicle Code section 10851, subdivision (a) and in count II of receiving a stolen vehicle in violation of Penal Code section 496d, subdivision (a). Defendant contends that we must vacate one of the two charges because he cannot be convicted of taking and receiving the same vehicle.
Under Penal Code section 496, subdivision (a), a person cannot be convicted of both taking and receiving the same property. In addition to the statute, a “common law rule likewise prohibits separate convictions for stealing and receiving the same property. [Citation.] This common law rule has an exception: It does not apply in the uncommon situation ‘when there is evidence of complete divorcement between the theft and a subsequent receiving, such as when the thief has disposed of the property and subsequently receives it back in a transaction separate from the original theft.’ [Citation.]” (People v. Garza (2005) 35 Cal.4th 866, 874-875; People v. Jaramillo (1976) 16 Cal.3d 752, 757, 759, fn. 8.) The complete divorcement exception requires more than the mere passage of time. (Garza, at p. 879.) “To establish a divorcement between the acts of theft and receiving (or concealing or withholding), there must be a significant break in the defendant’s possession and control over the stolen property. [Citation.]” (Ibid.)
Courts have upheld convictions for taking and receiving a stolen vehicle in cases where the evidence indicated a significant break in the defendant’s possession. In these cases, courts have found that the additional charge was not based on driving that was part of the continuous journey from the locus of the theft. Instead, the circumstances suggested that the vehicle was being used for purposes unconnected to the original taking. (See, e.g., People v. Strong (1994) 30 Cal.App.4th 366, 375 [the defendant had replaced the owner’s belongings with other items, including cassette tapes, magazines, and a blanket]; People v. Malamut (1971) 16 Cal.App.3d 237, 242 [the defendant was driving the vehicle at a different location, and the vehicle had a different motor, license plate, registration slip, and serial number].) A significant passage of time also suggests a complete divorcement between the taking and the receiving of stolen property. Courts have upheld convictions where the defendant was found in possession of the vehicle days or months after the initial taking. (See People v. Garza, supra, 35 Cal.4th at p. 882 [six days]; People v. Cratty (1999) 77 Cal.App.4th 98, 103 [eight months]; Strong, at p. 375 [four days]; Malamut, at p. 242 [about two months].)
Courts, however, have reversed convictions for taking and driving a vehicle where the evidence failed to show a substantial break between the acts. (See, e.g., People v. Campbell (1976) 63 Cal.App.3d 599, 614; People v. Donnell (1975) 52 Cal.App.3d 762, 769; People v. Tatum (1962) 209 Cal.App.2d 179, 184-185; People v. Kehoe (1949) 33 Cal.2d 711, 715-716.) In Kehoe, the defendant took the vehicle in Humboldt County and, about one week later, was arrested for driving the vehicle about 400 miles away in Monterey County. Because the information charged that both offenses occurred on or about the same day in Humboldt County, however, the driving charge was based on conduct that occurred around the time of the taking. The court held that the trial court erred in convicting the defendant of both offenses. (Kehoe, at pp. 715-716.)
In Donnell, the defendant was charged and convicted of two counts of taking a vehicle and two counts of receiving stolen property. One of the cars was stolen on the morning of March 13, 1974, and the other car was stolen one or two days earlier. At 10:30 a.m. on March 13, 1974, defendant and his companions used the two vehicles to commit an armed robbery—one to drive to the location and the other as a getaway car. The court in Donnell explained that “[t]he evidence supports defendant’s conviction of ‘taking’ the car on the basis of his conspiring with the other robbers to obtain it to be, as it was, used in the robbery.” (People v. Donnell, supra, 52 Cal.App.3d at p. 769.) The court held that, because the defendant was convicted of taking the vehicles, he could not be convicted of receiving the same property. (Ibid.)
In this case, the evidence indicates that the taking and driving occurred sometime after 8:00 a.m. on May 10 and before 9:00 a.m. on May 11, 2007. George Sr. and Violet last saw the Mercury on May 10, 2007, before they left for work between 7:30 a.m. and 8:00 a.m. When they returned home later that night, the car was gone. Around 9:00 the following morning, Violet spotted defendant driving the car and called the police; a couple hours later, she saw the car in front of her vacant home on Estrella Avenue. Officer Voeltz responded to a dispatch call concerning the vehicle around 10:00 a.m. When he was en route to the location, he noticed the car being pursued by another officer and joined the pursuit.
Under these facts, a jury reasonably could not have found that there was a significant break between the initial taking and the subsequent use of the car in fleeing from the police. The evidence was wholly unclear on when defendant took and received the stolen vehicle. The information alleges that defendant unlawfully drove or took the vehicle and received the same stolen vehicle on May 11, 2007. There was no evidence to suggest that defendant used the vehicle for purposes unconnected to the original taking. (See, e.g., People v. Strong, supra, 30 Cal.App.4th at p. 375; People v. Malamut, supra, 16 Cal.App.3d at p. 242.) In fact, there was no evidence of a significant passage of time to suggest a complete divorcement between the taking and the receiving of stolen property. (See, e.g., People v. Garza, supra, 35 Cal.4th at p. 882; People v. Cratty, supra, 77 Cal.App.4th at p. 103.) A reasonable presumption can be made here that defendant drove the vehicle the entire time without any significant break between the initial taking and the fleeing from the police.
Under the facts in this case, we cannot say that no reasonable juror could have found that defendant took the car and, as part of a continuous course of conduct, used it to flee from the police. There was no evidence that defendant and his passenger stopped at some other location before fleeing from the police. Though Violet testified that she saw the vehicle parked in front of her vacant home on Estrella, there was no evidence to suggest defendant had gotten out of the car. The information alleged that defendant unlawfully drove or took the vehicle and received the same stolen vehicle on May 11, 2007. In Kehoe, the California Supreme Court held that, while there may have been evidence to support the theory that the acts were separate, it was error for the court to enter judgment finding the defendant guilty of both offenses. (People v. Kehoe, supra, 33 Cal.2d at pp. 715-716.) Likewise, here, while the evidence may support a finding that there was a complete divorcement between the two acts, the evidence was not so compelling as to exclude the possibility of a contrary finding.
While defendant’s convictions for both offenses are subject to reversal, the evidence in the record (i.e., the fact that defendant was driving the vehicle shortly after it was discovered stolen) overwhelmingly supports the finding that defendant at least committed the initial taking. (See People v. Campbell, supra, 63 Cal.App.3d at p. 614.) We therefore reverse only defendant’s conviction for receiving stolen property.
C. Sustaining Objection
The defense in this case was one of mistaken identity. During closing argument, defense counsel pointed out that Violet only saw the driver of the Mercury very briefly while it was moving. Defense counsel stated that she had a bias, as she disliked defendant and he was not welcome in her home. Defense counsel also attacked the identification of defendant by Officer Voeltz, as well as the investigation done in this case as to the identity of the perpetrator.
Defense counsel then attempted to draw the jury’s attention to incidents of common knowledge where people had been wrongfully convicted because of mistaken identifications. The prosecutor interrupted defense counsel in mid-sentence and interposed an objection of “[i]mproper argument.” The court sustained this objection.
Specifically, defense counsel argued, “I’ve also talked about, particularly in the voir dire, how we have all heard of people who went to state prison, who have been incarcerated[.]”
Defense counsel then tried to draw the jury’s attention to instances where people had been wrongfully convicted, and then exonerated on the basis of DNA evidence. Specifically, counsel remarked, “We have all heard of people who have been wrongfully convicted[.]” The prosecutor’s imprope-argument objection was sustained. Defense counsel then argued, “We have all heard of people who have been exonerated by DNA evidence[.]” The prosecutor’s objection of “[i]mproper evidence” was sustained.
Defendant argues the trial court improperly restricted defense counsel’s closing argument, as it was “perfectly proper to argue to the jury that there were cases of common knowledge where suspects had been convicted based on erroneous identifications.” He thus claims these “improper restrictions” resulted in prejudice, requiring reversal.
“A criminal defendant has a well-established constitutional right to have counsel present closing argument to the trier of fact. [Citations.]” (People v. Marshall (1996) 13 Cal.4th 799, 854.) The defense is given wide latitude in closing argument. (People v. Farmer (1989) 47 Cal.3d 888, 922, disapproved on other grounds in People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6.) “While it is error to argue facts outside the record [citation], it is not improper to argue matters of common knowledge or use illustrations from common experience, history, or literature [citations].” (People v. Williamson (1985) 172 Cal.App.3d 737, 750.)
However, “[t]his is not to say that closing arguments in a criminal case must be uncontrolled or even unrestrained. The presiding judge must be and is given great latitude in controlling the duration and limiting the scope of closing summations. He may limit counsel to a reasonable time and may terminate argument when continuation would be repetitive or redundant. He may ensure that argument does not stray unduly from the mark, or otherwise impede the fair and orderly conduct of the trial. In all these respects he must have broad discretion. [Citations.]” (Herring v. New York (1975) 422 U.S. 853, 862 [95 S.Ct. 2550, 45 L.Ed.2d 593].)
Penal Code section 1044 vests the trial court with broad discretion to control the conduct of a criminal trial. (People v. Cline (1998) 60 Cal.App.4th 1327, 1333; People v. Ponce (1996) 44 Cal.App.4th 1380, 1387.) A trial court has the responsibility to exercise its discretion to prevent improper argument by the parties, including attempts to present factually unsubstantiated contentions to a jury. (Ponce, at pp. 1387-1389.) In exercising its discretion under Penal Code section 1044, a trial court must be impartial and must assure that a defendant is afforded a fair trial. When there is no patent abuse of discretion, a trial court’s determinations under Penal Code section 1044 must be upheld on appeal. (Cline, at p. 1334; People v. Marshall, supra, 13 Cal.4th at p. 855.)
Penal Code section 1044 states: “It shall be the duty of the judge to control all proceedings during the trial, and to limit the introduction of evidence and the argument of counsel to relevant and material matters, with a view to the expeditious and effective ascertainment of the truth regarding the matters involved.”
Defendant contends the trial court improperly prohibited defense counsel from arguing cases where suspects had been erroneously identified. Defendant points to a series of opinions which held that particular magazine and newspaper articles were appropriate subjects for closing argument. (See, e.g., People v. Woodson (1964) 231 Cal.App.2d 10, 15-16; People v. Travis (1954) 129 Cal.App.2d 29, 37.) These decisions reflect particularized exercises of judicial discretion under certain circumstances. However, there is no rule to the effect that attorneys may always refer to such articles in closing argument, and the trial court still retains discretion pursuant to Penal Code section 1044 to limit counsel’s argument under the circumstances of each case. (People v. London (1988) 206 Cal.App.3d 896, 909.) “Counsel’s summation to the jury must be based upon facts shown by the evidence or known judicially. [Citation.] Counsel may refer the jury to nonevidentiary matters of common knowledge, or to illustrations drawn from common experience, history, or literature [citation], but he may not dwell on the particular facts of unrelated, unsubstantiated cases.” (People v. Mendoza (1974) 37 Cal.App.3d 717, 725 [trial court properly denied defense counsel license to read newspaper clippings about unrelated crimes, hearsay material which could only confuse the jury with irrelevant facts]; see also People v. Farmer, supra, 47 Cal.3d at pp. 921-922 [court properly prohibited defense counsel from reading from an article when the contents were not revealed prior to argument]; People v. Pelayo (1999) 69 Cal.App.4th 115, 122 [the trial court properly restricted defense counsel’s closing argument by prohibiting reference to newspaper articles about a person who was acquitted of sex crimes against children when it was discovered the stories were fabricated by the children].)
“[C]losing argument for the defense is a basic element of the adversary factfinding process in a criminal trial” and the complete denial of an opportunity to make a closing argument is a violation of the constitutional right to counsel. (Herring v. New York, supra, 422 U.S. at pp. 858-859, 863) Similarly, a defendant’s right to counsel is denied where the court seriously limits defense closing argument, as by precluding reference to an entire theory of defense (Conde v. Henry (9th Cir. 1999) 198 F.3d 734, 739), or preventing counsel from arguing the significance of evidence critical to a theory of defense (United States v. Kellington (9th Cir. 2000) 217 F.3d 1084, 1099-1100).
Contrary to defendant’s argument, such a denial did not occur in this case. The trial court herein properly prohibited defense counsel from arguing about people who had been wrongfully convicted, wrongfully incarcerated, or later exonerated by DNA evidence, but the court did not limit counsel’s argument on the crux of the defense theory: that defendant was mistakenly identified by Violet and Officer Voeltz and that Violet had a motive to fabricate. Defense counsel was also allowed to fully explore the defense during cross-examination.
For example, counsel questioned Officer Voeltz extensively about why there were no photographic lineups, DNA analysis, or fingerprint comparisons performed in this case. Counsel also tried to show that Officer Voeltz was unable to get a good look at defendant during the vehicle and foot pursuit. Counsel was also permitted to ask Officer Voeltz whether he was aware of any convictions based on eyewitness identification that were later overturned because of DNA evidence. The officer responded, “Yeah, there’s been cases like that.”
In his closing argument, defense counsel challenged Violet’s and Officer Voeltz’s ability to identify defendant. Counsel was thus allowed to fully address the relevant defense theory “in his own words without reference to supporting authorities,” and any error is necessarily harmless. (People v. Guzman (1975) 47 Cal.App.3d 380, 392.) The trial court’s discretionary decision to prohibit reference to an unrelated case was not erroneous as a matter of law, the court did not abuse its discretion, and defendant was not denied the right to counsel or to present a defense. (People v. London, supra, 206 Cal.App.3d at p. 909.)
III
DISPOSITION
Defendant’s conviction for receiving stolen property (count II) is reversed. The trial court is directed to amend the abstract of judgment to reflect this change and forward a corrected copy of the abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: RAMIREZ P.J., McKINSTER J.