Opinion
C080071
04-18-2018
THE PEOPLE, Plaintiff and Respondent, v. CHANEL DUPLESSIS et al., Defendants and Appellants.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14F06591)
A jury convicted Chanel Duplessis and Dung Nguyen of unlawfully driving a vehicle (count one), unlawfully receiving an automobile (count two), and possession of burglary tools (count three). The trial court sentenced Duplessis to a term of three years and Nguyen to a term of six years.
See footnote 2.
Defendants now contend (1) the trial court erred in failing to instruct the jury on the requisite knowledge and intent for aiding and abetting liability. In addition, Duplessis argues (2) reversal is required on her conviction for unlawfully receiving an automobile because the trial court failed to instruct the jury on the definition of theft, and (3) pursuant to Proposition 47 (the Safe Neighborhoods and Schools Act), reversal is required on her count one conviction because the jury verdict did not establish a felony. Moreover, Nguyen argues (4) insufficient evidence supports his convictions on counts one and two.
We will reverse Nguyen's conviction for unlawfully driving a vehicle and otherwise affirm the judgment.
BACKGROUND
D.S. reported his Toyota Camry stolen in September 2014. California Highway Patrol Officer David Woodruff saw the Camry parked in front of a house in South Sacramento three days after it was reported stolen. Officer Woodruff observed three people around the Camry, loading the car with what he later determined were photography lights. Three people entered the car and the car drove away. Officer Woodruff followed the Camry in his marked patrol car. The Camry pulled over before Officer Woodruff activated the lights and siren of his patrol car.
Duplessis was in the driver's seat of the Camry. Another individual was in the front passenger seat and is not a defendant in this case. Nguyen was in the rear passenger seat. The car stereo was missing and a "shaved" Acura key was in the ignition, attached to a key ring with other shaved car keys. Officer Woodruff explained that a shaved key has grinding marks on the teeth. Additional shaved car keys were found in the possession of Nguyen and Duplessis. The owner of the Camry did not know defendants and did not give them or anyone else permission to take or drive the car.
The jury convicted Duplessis and Nguyen of unlawfully driving a vehicle (Veh. Code, § 10851, subd. (a) -- count one), unlawfully receiving an automobile (Pen. Code, § 496d, subd. (a) -- count two), and possession of burglary tools (§ 466 -- count three). In a bifurcated proceeding, the trial court found true allegations that Nguyen had a prior strike conviction.
Vehicle Code section 10851 encompasses separate and distinct crimes: taking a car with the intent to permanently deprive the owner of possession, and post-theft driving. (People v. Page (2017) 3 Cal.5th 1175, 1182-1183 (Page); People v. Garza (2005) 35 Cal.4th 866, 876 (Garza).) While the verdict form for count one referred only to the unlawful taking of a vehicle, the information charged defendants with unlawfully driving or taking the Camry, the People presented evidence that Duplessis unlawfully drove the Camry, the trial court instructed the jury on the unlawful driving or taking of a vehicle, and the prosecutor argued Duplessis unlawfully drove the Camry. The prosecutor argued to the jury that Nguyen was guilty as an aider and abettor on the count one charge of unlawfully driving a vehicle because he aided and abetted Duplessis in driving the stolen car. Under the circumstances, the technical defect in the verdict form does not restrict the jury's finding to unlawfully taking the Camry (People v. Jackson (2014) 58 Cal.4th 724, 750), and the evidence supports a verdict of unlawfully driving a vehicle.
Undesignated statutory references are to the Penal Code.
The trial court sentenced Duplessis to the upper term of three years on count one, imposed but stayed the same term on count two, and imposed a 180-day sentence on count three, to be served concurrently with the sentence on counts one and two. The trial court denied Nguyen's motion to dismiss the prior strike conviction allegation and sentenced him to the middle term of three years on count one, doubled for the prior strike. The trial court stayed any sentence that might be imposed on count two and imposed a sentence of 180 days on count three, to run concurrently with the sentence on count one.
DISCUSSION
I
Defendants contend the trial court erred in failing to instruct the jury on the requisite knowledge and intent for aiding and abetting liability.
"All persons concerned in the commission of a crime, . . . whether they directly commit the act constituting the offense, or aid and abet in its commission . . . are principals in any crime so committed." (§ 31.) A direct perpetrator commits the offense himself or herself. (People v. Perez (2005) 35 Cal.4th 1219, 1225 (Perez).) The guilt of an aider and abettor is based on the acts of the direct perpetrator and the aider and abettor's own acts and mental state. (Ibid.; People v. McCoy (2001) 25 Cal.4th 1111, 1118-1122 (McCoy).) Thus, an aider and abettor is liable for his own actions as well as the actions of the direct perpetrator. (McCoy, supra, 25 Cal.4th at pp. 1118-1120.)
A person aids and abets the commission of a crime when (a) the direct perpetrator commits a crime, (b) the aider and abettor knew of the perpetrator's criminal purpose, (c) the aider and abettor intended to commit, encourage, or facilitate the perpetrator's commission of the crime, and (d) by act or advice, the aider and abettor aided, promoted, encouraged, or instigated the commission of the crime. (Perez, supra, 35 Cal.4th at p. 1225; McCoy, supra, 25 Cal.4th at pp. 1117-1118; People v. Beeman (1984) 35 Cal.3d 547, 560-561.) When the crime requires a specific intent, the defendant must share the specific intent of the direct perpetrator to be guilty as an aider and abettor. (McCoy, supra, 25 Cal.4th at p. 1118.)
The trial court must instruct on " ' "general legal principles raised by the evidence and necessary for the jury's understanding of the case" ' " even without a request. (People v. Delgado (2013) 56 Cal.4th 480, 488 (Delgado).) "[I]nstructions delineating an aiding and abetting theory of liability must be given when such derivative culpability 'form[s] a part of the prosecution's theory of criminal liability and substantial evidence supports the theory.' " (Ibid.)
Here, the prosecutor argued to the jury that Nguyen was guilty as an aider and abettor on the count one charge of unlawfully driving a vehicle because he aided and abetted Duplessis in driving the stolen car. The trial court instructed the jury on the general principles of aiding and abetting theory with CALCRIM No. 400, stating: "A person may be guilty of a crime in two ways; one, he or she may have directly committed the crime. I will call that person the perpetrator; two, he or she may have aided and abetted a perpetrator who directly committed the crime. [¶] A person is guilty of a crime whether he or she committed it personally or aided and abetted the perpetrator. [¶] Under some specific circumstances, if the evidence establishes aiding and abetting of one crime, a person may also be found guilty of other crimes that occurred during the commission of the first crime."
However, the trial court did not instruct the jury on the elements of aiding and abetting liability set forth in CALCRIM No. 401. CALCRIM No. 401 provides, in pertinent part: "To prove that the defendant is guilty of a crime based on aiding and abetting that crime, the People must prove that: [¶] 1. The perpetrator committed the crime; [¶] 2. The defendant knew that the perpetrator intended to commit the crime; [¶] 3. Before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime; [¶] AND [¶] 4. The defendant's words or conduct did in fact aid and abet the perpetrator's commission of the crime. [¶] Someone aids and abets a crime if he or she knows of the perpetrator's unlawful purpose and he or she specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator's commission of that crime." (Italics omitted.)
The Attorney General agrees the trial court erred in not instructing the jury on the required findings for aiding and abetting liability because aiding and abetting liability was a theory raised by the evidence and necessary for the jury's full understanding of the case. (Delgado, supra, 56 Cal.4th at pp. 488-489; People v. Patterson (1989) 209 Cal.App.3d 610, 616-617.) The Attorney General also agrees the instructional error requires reversal of the count one Vehicle Code section 10851 conviction against Nguyen. The matter is remanded so the trial court may impose a sentence on count two as to Nguyen.
But the prosecutor did not rely on an aiding and abetting theory in connection with the count one charge of unlawfully driving a vehicle against Duplessis and the count two charge of receiving stolen property against Duplessis and Nguyen. The trial court instructed the jury on the elements of direct perpetrator liability on those crimes.
The prosecutor told the jury Duplessis was guilty as a direct perpetrator for unlawfully driving the Camry, i.e., she drove the car without the owner's consent and with the intent to deprive the owner of possession for some period of time; whereas Nguyen was guilty as an aider and abettor. As for count two, the prosecutor argued defendants received the stolen Camry, knew the Camry had been stolen, and possessed the stolen car. The prosecutor did not rely on the aiding and abetting theory with regard to count two. The trial court instructed the jury that it must decide what the facts were, some of the instructions may not apply depending on the jury's findings about the facts of the case, and the jury must follow the instructions that applied to the facts as the jury found them. Because the jury was not asked to convict based on an aiding and abetting theory as to Duplessis on count one and as to either defendant on count two, no instructional error occurred as to those charged offenses.
In any event, any error regarding the aiding and abetting instruction as to Duplessis on count one and as to defendants on count two was harmless beyond a reasonable doubt. (People v. Hardy (1992) 2 Cal.4th 86, 186 [applying Chapman v. California (1967) 386 U.S. 18 ; People v. Walker (1988) 47 Cal.3d 605, 632; People v. Marks (1985) 167 Cal.App.3d 103, 106-108.) Under Chapman, reversal is not required where it appears beyond a reasonable doubt that the error did not contribute to this jury's verdict. (People v. Flood (1998) 18 Cal.4th 470, 504; see People v. Chiu (2014) 59 Cal.4th 155, 167.) We disagree with Duplessis that it is reasonably likely the jury concluded Nguyen obtained or took the stolen Camry and Duplessis merely helped Nguyen by loading and driving the car. There was no evidence concerning who stole or obtained the Camry. Officer Woodruff did not know how the Camry came to be in defendants' possession. He testified he had no information Nguyen stole the Camry. And the prosecutor did not argue that either defendant stole the Camry.
Rather, the evidence overwhelmingly supported Duplessis's conviction on count one and defendants' convictions on count two. " '[P]ossession of stolen property, accompanied by no explanation or unsatisfactory explanation, . . . will justify an inference that the goods were received with knowledge that they were stolen.' " (People v. Shope (1982) 128 Cal.App.3d 816, 821.)
II
Duplessis also argues reversal is required on her conviction for unlawfully receiving an automobile because the trial court failed to instruct the jury on the definition of theft. She was charged in count two with violating section 496d, subdivision (a), which proscribes receiving a motor vehicle that has been stolen or that has been obtained in any manner constituting theft, knowing the property to be stolen. (§ 496d, subd. (a).) The Attorney General responds there was no need for an instruction defining theft because it is undisputed the Camry was stolen by someone; moreover, any error was harmless because the evidence established the Camry was stolen.
The trial court instructed the jury that to convict a defendant of the crime of receiving stolen property, the People must prove that (1) the defendant received property that had been stolen; (2) when the defendant received the property, he or she knew that the property had been stolen; and (3) the defendant actually knew of the presence of the property. The trial court told the jury that property was stolen if it was obtained by any type of theft or by burglary or robbery. The trial court did not define the words theft, burglary or robbery.
Nevertheless, there was no dispute that the Camry was stolen or taken by theft. The parties stipulated that if called to testify, D.S. would present facts showing his Camry was taken on September 14, 2014, D.S. reported the car stolen, he did not know Duplessis and Nguyen, he did not give Duplessis, Nguyen or anyone else permission to take or drive his car, and items had been removed from the car. The Camry had been taken for about three days when Officer Woodruff saw it. There was no evidence or argument the Camry was only taken temporarily and would be returned to D.S. Under the circumstances, the trial court had no sua sponte duty to instruct the jury on the definition of theft because the evidence did not raise a question about whether the Camry was taken with the intent to permanently deprive the owner of title or possession. (People v. MacArthur (2006) 142 Cal.App.4th 275, 280-281 (MacArthur); Bench Notes to CALCRIM No. 1750 (2017 ed.) p. 1126.)
In MacArthur, the defendant pawned jewelry given to him by his girlfriend that actually belonged to the girlfriend's mother. (MacArthur, supra, 142 Cal.App.4th at pp. 277-278.) The girlfriend often pawned her mother's jewelry, intending to later redeem the jewelry and return it to her mother. (Ibid.) The defendant was charged with receiving stolen property and the trial court's instruction on the crime did not define the words stolen or theft. (Id. at pp. 278-280.) Based on the particular facts of the case, the appellate court concluded the jury needed to decide whether the jewelry had been taken with the intent to deprive the girlfriend's mother of possession for a sufficiently extended period of time. (Id. at p. 280.) The trial court had "failed to instruct the jury that theft requires a particular intent, leaving the jury with no basis for determining whether the jewelry had been stolen -- an issue raised by the evidence." (Ibid.) The appellate court noted that pawning property did not transfer ownership or necessarily deprive the owner of possession permanently. (Id. at p. 281.) Here, however, there was no dispute that the Camry had been taken with the intent of permanently depriving D.S. of possession or ownership of his property, and no evidence to the contrary. Duplessis fails to demonstrate error under these circumstances.
Moreover, any error did not prejudice defendant as no reasonable jury could have found that the Camry had not been obtained by theft. Thus, even if the trial court had instructed the jury on the meaning of theft, it would have rendered the same verdict.
III
Duplessis further argues, pursuant to Proposition 47, that reversal is required on her count one conviction because the jury verdict did not establish a felony. The Attorney General counters that Proposition 47 does not apply to a Vehicle Code section 10851, subdivision (a) conviction, but even if it does, section 490.2 does not apply to Duplessis's count one conviction because the jury convicted Duplessis of unlawfully driving the Camry, not unlawfully taking it.
The voters approved Proposition 47 in November 2014, reducing certain felony or wobbler drug- and theft-related offenses to misdemeanors. (Page, supra, 3 Cal.5th at p. 1179.) One of the crimes reduced to a misdemeanor is petty theft, defined as theft of property where the value of the money, labor, real or personal property taken does not exceed $950. (§ 490.2, subd. (a).)
As we have explained, Vehicle Code section 10851 encompasses a theft offense (taking a car with the intent to permanently deprive the owner of possession) and a non-theft offense (post-theft driving). (Page, supra, 3 Cal.5th at pp. 1182-1183; Garza, supra, 35 Cal.4th at p. 876.) The California Supreme Court recently held that Proposition 47 applies to the theft offense under Vehicle Code section 10851. (Page, supra, 3 Cal.5th at p. 1183.) Thus, after the passage of Proposition 47, a defendant who obtains a car valued at less than $950 by theft must be charged with petty theft and may not be punished as a felon. (Ibid.) Proposition 47 does not apply to the non-theft form of Vehicle Code section 10851. (Page, at pp. 1183, 1188.)
Duplessis's Proposition 47 challenge is based on the premise that her count one Vehicle Code section 10851 conviction is theft-based. As we have explained, however, the record does not support the factual predicate of her contention. The prosecutor sought conviction on count one based on post-theft driving. The evidence showed Duplessis drove the stolen Camry three days after it was stolen. There was no evidence concerning who stole the Camry from the location where D.S. parked it on September 14, 2014. Because the record does not show that the jury convicted her of theft on count one, Duplessis fails to demonstrate she was entitled to a reduction under Proposition 47 on that count.
IV
In addition, Nguyen contends there is insufficient evidence to support his convictions on counts one and two. We need not consider Nguyen's additional challenge to the count one conviction because we have already concluded that conviction against Nguyen must be reversed. As for his count two conviction for unlawfully receiving an automobile, Nguyen claims there is insufficient evidence he possessed the Camry with knowledge it was stolen.
In determining whether sufficient evidence supports a conviction, " 'we do not determine the facts ourselves. Rather, we "examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence -- 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." [Citations.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] The same standard of review applies to cases in which the prosecution relies primarily on circumstantial evidence and to special circumstance allegations. [Citation.] "[I]f the circumstances reasonably justify the jury's findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding." [Citation.]' [Citation.]" (People v. Nelson (2011) 51 Cal.4th 198, 210.) We do not reweigh evidence or reevaluate a witness's credibility. (Ibid.) The effect of this standard of review is that a defendant challenging the sufficiency of the evidence to support his conviction bears a heavy burden on appeal. (People v. Powell (2011) 194 Cal.App.4th 1268, 1287.)
Applying the above standard to this case and for the reasons we have explained in section I supra, we conclude there is substantial evidence establishing that the Camry was stolen, defendants knew the car was stolen, and they possessed the Camry. Nguyen's contention lacks merit.
DISPOSITION
The count one conviction against Nguyen is reversed and the matter against Nguyen is remanded so the trial court may impose a sentence on count two as to Nguyen. The judgment is affirmed in all other respects. The trial court is directed to prepare an amended abstract of judgment and to forward a certified copy to the Department of Corrections and Rehabilitation.
/S/_________
MAURO, J. We concur: /S/_________
HULL, Acting P. J. /S/_________
MURRAY, J.