Opinion
Contra Costa County Super. Ct. No. 5-051829-0
RIVERA, J.
Defendant Karen Dimaggio appeals a judgment entered upon a jury verdict finding her guilty of taking and driving a stolen vehicle (Veh. Code § 10851, subd. (a)) and driving without a license (id., § 12500, subd. (a).) She contends that there is insufficient evidence to support the trial court’s finding that she intended to deprive the owners of the car of title or possession; that the trial court erred in excluding a statement she made to a police officer; and that she was denied her constitutional right to effective assistance of counsel. We affirm.
Defendant does not contest the misdemeanor Vehicle Code section 12500, subdivision (a) conviction.
I. FACTUAL BACKGROUND
On November 5, 2005, at approximately 1:15 p.m., a Saturn automobile owned by Carl Hulten was reported missing by his fiancée. She had driven the car to her work that morning and had last seen it around 11:20 a.m. It was gone when she returned two hours later. She had not given her car keys to anyone, and she had had no trouble starting the car that morning.
The following day, at approximately 4:30 p.m., defendant was spotted by Officer Folena of the Pittsburg Police Department pulling out of a motel on Railroad Avenue in Pittsburg driving Hulten’s car. Folena knew defendant did not have a driver’s license, and he followed her. As she left the motel, defendant headed north on Railroad. Folena was driving south. Folena made a U-turn and drove north on Railroad in the direction of defendant. Defendant then made a U-turn and drove south on Railroad. At one point, defendant, who was heading south on Railroad, passed Folena, who was heading north on the same street. Folena then made a U-turn and pursued defendant. Defendant turned left on Victory Avenue and Folena followed. Folena turned right on Avon Street and noticed the Saturn parked on the west side of the street. He spotted defendant walking away from the driver’s side of the car and across the street accompanied by her passenger.
From the parking lot of the motel, a car could not make a left turn to go southbound on Railroad.
Folena conducted a records check of the Saturn and realized that it had been reported stolen. He approached defendant and told her she was driving a stolen vehicle. She appeared shocked. Folena arrested defendant and recovered a key she was carrying in her sweatshirt pocket. The key was a Saturn car key that appeared narrower than a normal key, was bent, and had some filing marks on it. Folena tried to start the car with the key but was unsuccessful. He gave the key to a second officer, Officer Tamori, who had been called to the scene. Tamori tried to start the car with the key, but it would not readily turn the ignition switch. After jiggling the key and applying slight pressure for about 30 to 60 seconds, he was able to start the car. Tamori had used this method in past investigations of stolen vehicles to start a car with a “shaved” key.
A jury convicted defendant of violating Vehicle Code sections 10851 subdivision (a) (unlawfully driving and taking a vehicle) and 12500 subdivision (a) (driving without a license). The court sentenced defendant to the mitigated term of 16 months in state prison. This timely appeal ensued.
II. DISCUSSION
A. Sufficiency of the Evidence
Defendant contends there was insufficient evidence that she intended to deprive Hulten of title or possession of his car. “In assessing a claim of insufficiency of evidence, the reviewing court’s task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Rodriguez (1999) 20 Cal.4th 1, 11; see also People v. Green (1995) 34 Cal.App.4th 165 (Green), 180; People v. Eisenberg (1968) 266 Cal.App.2d 606, 612.)
Vehicle Code section 10851, subdivision (a) provides that “[a]ny person who drives or takes a vehicle not his or her own, without the consent of the owner thereof, and with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle, whether with or without intent to steal the vehicle . . . shall be punished by imprisonment in a county jail . . . .” Defendant is correct in noting that intent is one of the elements of the crime that must be proven beyond a reasonable doubt. (See Green, supra, 34 Cal.App.4th at p. 180.) However, “[t]he specific intent to deprive the owner of possession of his car may be inferred from all the facts and circumstances of the particular case. . . . Once the unlawful taking of [a] vehicle has been established, possession of the recently taken vehicle by the defendant with slight corroboration through statements or conduct tending to show guilt is sufficient to sustain a conviction [under the statute].” (In re Robert V. (1982) 132 Cal.App.3d 815, 821; see also People v. Windham (1987) 194 Cal.App.3d 1580, 1590 (Windham).) Similarly, in People v. Clifton (1985) 171 Cal.App.3d 195, 199-200 (Clifton), the court found that “[m]ere possession of a stolen car under suspicious circumstances is sufficient to sustain a conviction of unlawful taking. Possession of recently stolen property is so incriminating that to warrant a conviction of unlawful taking there need only be, in addition to possession, slight corroboration in the form of statements or conduct of the defendant tending to show his guilt.” (See also People v. Brown (1969) 1 Cal.App.3d 161, 166; People v. Hopkins (1963) 214 Cal.App.2d 487, 492 (Hopkins).)
Because defendant was found in possession of a vehicle that was recently stolen (in this case the day before), the prosecution needed only to provide “slight corroboration” to infer defendant’s intent to deprive Hulten of title or possession of the car. Many cases in which a defendant’s specific intent under section 10851 has been inferred have looked to such evidence as false explanations regarding possession of the vehicle (Green, supra, 34 Cal.App.4th at p. 180), the defendant’s silence under circumstances indicating consciousness of guilt (id. at pp.180-181), damage to the ignition or other parts of the vehicle (Windham, supra, 194 Cal.App.3d at p. 1590), finding the defendant in possession of the vehicle a short time after it was reported stolen (ibid.), certain conduct on the part of the defendant upon being seen by the police, such as flight (Hopkins, supra, 214 Cal.App.2d at p. 492), and even possession of the vehicle “under suspicious circumstances” (Clifton, supra, 171 Cal.App.3d at p. 199).
Defendant was found driving Hulten’s Saturn a little over a day after it was reported stolen, and she had a Saturn key that was bent and filed down and did not readily start the vehicle’s ignition. From this evidence, a reasonable jury could infer that defendant knew the car was stolen and intended to deprive Hulten of it, and that her driving behavior between the time she left the motel and got out of the car on Avon Street indicated she was trying to elude Folena. (See Windham, supra, 194 Cal.App.3d at p. 1590.) Such evidence constitutes the “slight corroboration” or “suspicious circumstances” necessary to sustain a conviction under section 10851. (See In re Robert V., supra, 132 Cal.App.3d at p. 821; Clifton, supra, 171 Cal.App.3d at p. 199.)
B. The Trial Court’s Exclusion of Defendant’s Statement to Officer Folena
Defendant next contends that the trial court erroneously excluded a statement she made to Folena as not falling under the spontaneous statement exception to the hearsay rule. (Evid. Code, § 1240.)
Unless otherwise indicated, all further statutory references are to the Evidence Code.
When Folena stopped defendant, he informed her that she was driving a stolen vehicle. Defendant told him she had just borrowed the car, and that “[s]tolen cars aren’t my thing.” Even though the tone of the conversation was normal and defendant was not hostile toward Folena, she did appear surprised and shocked that she was in a stolen vehicle. After listening to Folena’s testimony, the court denied defendant’s request to admit her statement to Folena under section 1240, stating “I don’t think the [L]egislature intended to indicate that any time that somebody responds to information with surprise that that’s an excited utterance. I think an excited utterance is when somebody has just seen or observed something that’s quite unusual and reacts to it. The exculpatory nature doesn’t really bear on it, but I just don’t think from everything that’s been said the conversation was not excited.”
Section 1240 provides: “Evidence of a statement is not made inadmissible by the hearsay rule if the statement: [¶] (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and [¶] (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception.” Whether the requirements of this section are met in any given case is largely a question of fact to be determined by the court. (People v. Poggi (1988) 45 Cal.3d 306, 318 (Poggi).) “In performing this task, the court ‘necessarily [exercises] some element of discretion . . . .’ ” (Poggi, at p. 318, citing Showalter v. Western Pacific R. R. Co. (1940) 16 Cal.2d 460, 469; see also People v. Pearch (1991) 229 Cal.App.3d 1282, 1290.) We review the trial court’s determination for abuse of discretion. (Poggi, supra, 45 Cal.3d at pp. 318-319; People v. Pirwani (2004) 119 Cal.App.4th 770, 787-788.)
In Poggi, the Supreme Court also noted that of any of the requirements under section 1240, “the discretion of the trial court is at its broadest when it determines whether [the utterance has been made before there has been time to contrive and misrepresent].” (Poggi, supra, 45 Cal.3d at p. 319.)
We see no abuse of discretion here. Folena testified that although defendant looked surprised and her voice became a little higher when he told her the car was stolen, she did not cry, scream, turn red, sweat, or repeat herself. He had seen defendant in an excited state before, her level of excitement was “a little lower” than he had seen in the past. The court heard Folena imitate defendant’s tone of voice. The trial court could reasonably conclude that Folena’s statement that the car had been stolen was not startling enough to show that defendant’s statement was “ ‘the instinctive and uninhibited expression of the speaker’s actual impressions and belief.’ ” (People v. Hines (1997) 15 Cal.4th 997, 1034-1035, fn. 4.)
Defendant contends, however, that the trial court erroneously concluded that section 1240 does not apply to spontaneous statements made to police officers. The trial court did not make such a broad determination. It merely stated its belief that not all responses indicating surprise on the part of the speaker should fall within the exception. Under these circumstances, we will not disturb the trial court’s ruling.
The phrasing of the trial court’s statement indicates its belief that there may be some instances in which surprised responses would fall within the exception. Furthermore, while responses to questions, like defendant’s response to Officer Folena’s question about the stolen car, do not “ipso facto deprive the [responses] of spontaneity,” “[t]he fact that a statement is made in response to questioning is one factor suggesting the answer may be the product of deliberation.” (People v. Farmer (1989) 47 Cal.3d 888, 904, overruled on other grounds in People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6.)
C. Ineffective Assistance of Counsel
Defendant contends that she was denied her constitutional right to effective assistance of counsel in two respects. First, she argues that trial counsel failed to seek admission of her statement to Folena under section 1250. Second, she contends he failed to object to the prosecutor’s characterization of the reasonable doubt standard.
In order to demonstrate that counsel’s performance was constitutionally ineffective, a convicted defendant “must show that counsel’s representation fell below an objective standard of reasonableness.” (Strickland v. Washington (1984) 466 U.S. 668, 688 (Strickland).) “Judicial scrutiny of counsel’s performance must be highly deferential.” (Id. at p. 689.) “Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance . . . .” (Id. at p. 689.) “Reviewing courts reverse convictions on direct appeal on the ground of incompetence of counsel only if the record on appeal demonstrates there could be no rational tactical purpose for counsel’s omissions.” (People v. Lucas (1995) 12 Cal.4th 415, 442.) Finally, in order to show prejudicial error, the defendant “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Strickland, supra, 466 U.S. at p. 694.)
1. Failure to Seek Admissibility of Defendant’s Statement Under Section 1250
Defendant contends her statement to Folena that she had just borrowed the car and that “stolen cars aren’t [her] thing” was admissible as a declaration of her then existing state of mind, and that counsel’s failure to seek admission of the statement was prejudicial to her defense.
Section 1250 subdivision (a) provides in pertinent part: “Subject to Section 1252 , evidence of a statement of the declarant’s then existing state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) is not made inadmissible by the hearsay rule” provided that it “is offered to prove the declarant’s state of mind, emotion, or physical sensation at that time . . . or . . . [when it] is offered to prove or explain acts or conduct of the declarant.” (§ 1250, subd. (a)(1)-(2), italics added.) Section 1252 provides: “Evidence of a statement is inadmissible under this article if the statement was made under circumstances such as to indicate its lack of trustworthiness.”
On this record, we do not conclude counsel’s failure to seek admission of defendant’s statement under section 1250 fell outside the range of professional competence. The Supreme Court considered in People v. Edwards (1991) 54 Cal.3d 787, 818-821 (Edwards), whether the trial court erred in refusing to admit under section 1250 allegedly exculpatory statements the defendant had made. The court found no abuse of discretion, noting that section 1250 is subject to section 1252 and stating, “ ‘[a] defendant in a criminal case may not introduce hearsay evidence for the purpose of testifying while avoiding cross-examination.’ ” (Id. at p. 820; see also People v. Williams (1973) 30 Cal.App.3d 502, 510.) As the court stated, “[t]o be admissible under Evidence Code section 1252, statements must be made in a natural manner, and not under circumstances of suspicion, so that they carry the probability of trustworthiness. Such declarations are admissible only when they are ‘ “made at a time when there was no motive to deceive.” ’ ” (Edwards, supra, 54 Cal.3d at p. 820, quoting People v. Howard (1988) 44 Cal.3d 375, 405.)
Here, of course, defendant had a clear motive to lie about whether she knew the car was stolen. Under the circumstances, defendant’s counsel could well have concluded the statement was inadmissible as evidence of defendant’s state of mind and that it would be futile to seek its introduction under section 1250.
2. Failure to Object to the Prosecution’s Argument
Defendant contends that trial counsel’s failure to object to the prosecutor’s explanation of reasonable doubt deprived her of effective assistance of counsel. In closing argument, the prosecutor stated: “Reasonable doubt. . . . Now, when you go on—some of you probably got on the elevator and came up to the third floor. This may not be the best example seeing as one of the elevators is broken, however, the other elevator, if some of you did get on it, you walked in, you pushed a button, you went up to the third floor, you push the 3, you got off at the third floor. Now, if you had any reasonable doubt as to whether or not you were going to get off at the third floor, the elevator was going to work when you first got in it, you wouldn’t have gotten on the elevator. And so I think that’s a good example here.”
We need not decide whether the prosecutor’s statement was improper, because the record does not show defendant suffered any prejudice. The trial court gave the jury a proper explanation of the reasonable doubt standard minutes before the prosecutor’s argument, and had admonished the jury at the outset of its instruction that “[i]f you believe that an attorney’s comments on the law conflict with my instructions, you must follow my instructions.” We presume the jury followed these instructions. (See People v. Nguyen (1995) 40 Cal.App.4th 28, 36-37.) Furthermore, before providing the elevator analogy, the prosecutor gave the same definition of reasonable doubt as that given by the trial judge. Finally, defense counsel took the opportunity to explain the reasonable doubt standard again during his closing statement, which took place after the prosecutor’s allegedly improper analogy.
We conclude that defendant was not deprived of her constitutional right to effective assistance of counsel.
III. DISPOSITION
The trial court’s judgment is affirmed.
We concur: RUVOLO, P. J., SEPULVEDA, J.