Opinion
E066548
04-05-2018
THE PEOPLE, Plaintiff and Respondent, v. SAVANNAH MARIE GARRETT, Defendant and Appellant.
Jared G. Coleman, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Stacy Tyler, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. INF1500496) OPINION APPEAL from the Superior Court of Riverside County. Victoria E. Cameron, Judge. Affirmed. Jared G. Coleman, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Stacy Tyler, Deputy Attorneys General, for Plaintiff and Respondent.
Savannah Marie Garrett appeals a jury verdict finding her guilty of driving a vehicle without consent of the owner and receiving a stolen vehicle. She argues we should reverse both convictions because insufficient evidence showed she drove or had possession of the car or knew it was stolen. She also argues the trial court erred by failing to instruct the jury they had to find she knew the car had been stolen to convict her of driving a vehicle without consent. Finally, she argues the trial court improperly reduced the burden of proof by directing the jury that, if it determined she was in possession of recently stolen property, it could infer guilt from additional corroborating evidence.
We conclude there was sufficient circumstantial evidence to establish Garrett possessed the stolen car, drove it, and knew it had been stolen, and the trial court instructed the jury properly. We therefore affirm the judgment.
I
FACTUAL BACKGROUND
A. Evidence About the Offense
On the night of September 4, 2014, J.L. was closing the warehouse in Indio where he worked as a foreman. He drove his 2012 silver Toyota Camry around the warehouse lot and left the keys in the ignition while he attended to his duties at each stop. Around 8:00 p.m., a man and a woman, who was not Garrett, got into J.L.'s car and drove it away without permission. J.L. reported the incident to the police.
About four hours later, Officer Abraham Plata spotted the car near the intersection of Fleming Way and Market Street. No one was in or around the car, which was parked next to a dirt field and displayed regular license plates. The car sat within walking distance of two houses Garrett frequented—her grandmother's house and the house of Garrett's child's paternal grandfather (grandfather). Officer Plata did not take custody of the car because he wanted to try to catch the person who had taken it.
California Highway Patrol Officer Ryan Cain worked with Officer Plata to recover the car. At 6:45 a.m. on September 5, Officer Cain saw the car had been moved into the driveway of the grandfather's house, where he saw a man and a woman standing next to the car. He said the woman had a build like Garrett's and the car no longer had any license plates.
Officer Cain drove past to confer with Officer Plata. They returned to the grandfather's house five minutes later and found the car had been moved from the driveway and parked on the street in front of the house. By then, the car displayed paper license plates from a car dealership. Officers Cain and Plata explained car thieves frequently remove regular license plates from stolen cars and replace them with car dealership paper license plates to make the cars harder for law enforcement to identify.
At that point, Officers Cain and Plata approached the grandfather's house, where they found a teenager and a woman who appeared to have been sleeping. Garrett's grandmother's house was located directly behind the grandfather's house, and could be accessed by walking through grandfather's unsecured backyard. In a trash can in the backyard, the officers found the car's regular license plates and documents showing J.L.'s ownership.
The officers dusted for fingerprints. They explained it is uncommon to find identifiable fingerprints on car surfaces inside the vehicle, but said paper license plates can yield good fingerprints. The police found multiple prints belonging to Garrett on the front and back of the paper license plates.
The grandfather testified about events that happened after the car appeared in his driveway and before it was moved to the street. He identified Garrett as the mother of his son's child, and said she came to his house frequently and used his backyard to get to her grandmother's house. The grandfather said on the day in question he left the house at 6:30 a.m. to get something at the store. When he left, only his son's car was parked outside, but when he returned 15 minutes later, J.L.'s car was parked in his driveway. He saw a man he didn't recognize sitting in the passenger seat and Garrett standing on the driver's side of the car. Garrett asked the grandfather for Gatorade and motor oil. The grandfather said he wondered what Garrett was doing with the car, but gave her the drink she'd requested and left for work.
Officers Plata and Cain did not find Garrett at the grandfather's house or her grandmother's house that day. Law enforcement arrested her over six months later.
B. The Charges, Trial, and Verdict
The Riverside County District Attorney charged Garrett with unlawfully driving or taking a car (Veh. Code, § 10851, subd. (a); count 1) and receiving a stolen car (Pen. Code, § 496d, subd. (a); count 2). On May 3, 2016, a jury, having heard the evidence recounted above, found Garrett guilty of both counts.
Not relevant to this appeal, the district attorney also charged Garrett with possessing methamphetamines (Health & Saf. Code, § 11377, subd. (a); count 3) and alleged she had suffered a prior serious and violent felony conviction (strike prior) (Pen. Code, §§ 667, subd. (c), 1170.12, subd. (c)(1)) and a prison prior (Pen. Code, § 667.5, subd. (b)). Garrett pled guilty to the methamphetamine charge and the trial court found both prior conviction allegations true.
Also not relevant here, the trial court sentenced Garrett to a midterm two-year sentence on count 1, doubled for the strike prior. The trial court stayed the sentence on count 2 and struck the prison prior.
II
DISCUSSION
A. Substantial Evidence Challenges
Appellant challenges her Vehicle Code section 10851, subdivision (a) (Section 10851(a)) and Penal code 496d, subdivision (a) convictions as not having sufficient evidentiary support. When we review a jury verdict for sufficiency of the evidence, we are limited to determining whether, 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. (People v. Morgan (2007) 42 Cal.4th 593, 613.) An element has substantial support if the evidence is "reasonable in nature, credible, and of solid value." (Id. at p. 614.) Our focus is on whether any reasonable jury could have found the elements proven, not whether every reasonable jury would have done so.
1. Section 10851 conviction
"Any 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 . . . is guilty of a public offense." (§ 10851(a).) To convict an offender for violating Section 10851(a), prosecutors must prove (1) the defendant took or drove a car (2) without the owner's consent, and (3) with the specific intent to deprive the owner of title to or possession of the vehicle, either permanently or temporarily. (People v. Windham (1987) 194 Cal.App.3d 1580, 1590.)
After Proposition 47, to obtain a felony conviction for vehicle theft under Section 10851(a), prosecutors must also prove the vehicle had a fair market value exceeding $950. (Pen. Code, § 490.2; People v. Page (2017) 3 Cal.5th 1175, 1183-1187.)
Garrett argues the evidence was insufficient to support her Section 10851(a) conviction because she was seen only near the vehicle, and no evidence puts her inside it. Thus, she contends, the prosecution failed to establish the driving element of the offense. We believe she takes too narrow a view of the inferences a jury may make from circumstantial evidence.
Here, the jury had substantial circumstantial evidence from which a reasonable jury could have inferred Garrett unlawfully drove the car with the intent to permanently or temporarily deprive the owner of his car. Within four hours of the car's disappearance, police spotted it parked within walking distance of two houses to which Garrett had access. At that point, the car still displayed its regular license plates. Shortly thereafter, someone had moved the car and parked it in the driveway of one of the houses Garrett frequented. According to grandfather, who owned the house, he left his house at 6:30 a.m. that morning to go to the store. The car wasn't there when he left, but Garrett and her companion were there with the car when he returned fifteen minutes later. The grandfather said the man sat in the passenger seat, while Garrett stood on the driver's side of the car and asked him for motor oil. The grandfather left for work shortly thereafter. The jury reasonably could use these facts to infer Garrett had driven the car to the house.
Shortly after the grandfather saw Garrett and her companion in his driveway, police saw a woman with a body type like Garrett's standing next to the car with a man. By then, someone had removed the regular license plates. Five minutes after that, someone had moved the car back onto the street, and its regular license plates had been replaced with paper dealership plates. Police found Garrett's fingerprints on the paper license plates and found the regular license plates and the car's title dumped in a garbage can in the yard between the two houses Garrett frequented. This evidence provided additional circumstantial support for the jury's conclusion that Garrett had driven the car.
The same evidence also provided substantial support for the jury's conclusion Garrett had acted with the specific intent of depriving the owner of his car. As police testified, the purpose of removing regular license plates and replacing them with temporary paper plates is to avoid detection by law enforcement. Based on Garrett's proximity to the vehicle, the presence of her fingerprints on the paper license plates, and the presence of the regular license plates and the car's title in a garbage can, the jury reasonably could conclude Garrett is the person who replaced the car's license plates, concealed ownership records, and then moved the car to the street.
Viewing the evidence most favorably to the judgment, we conclude there was substantial evidence from which a reasonable jury could have concluded Garrett unlawfully drove the car with the intent to permanently or temporarily deprive the owner of possession.
2. Receiving stolen property conviction
"Every person who buys or receives any motor vehicle . . . that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be stolen . . . shall be punished by imprisonment." (Pen. Code, § 496d, subd. (a).) To convict an offender for receiving a stolen car, prosecutors must prove (1) the vehicle was stolen, (2) the accused knew the vehicle was stolen, and (3) the accused had possession of the stolen vehicle. (People. v. Russell (2006) 144 Cal.App.4th 1415, 1425, disapproved on other grounds by People v. Covarrubias (2016) 1 Cal.5th 838.)
Garrett argues the evidence was insufficient to support her conviction for receiving a stolen vehicle because it did not support finding she had possession of the car or knew it was stolen. Again, we conclude she takes too narrow a view of the inferences permissible from the circumstantial evidence.
We reach this conclusion for largely the same reason we concluded there was substantial evidence to support the finding that Garrett drove the stolen car. Within hours of being taken, the car showed up near the houses of Garrett's grandmother and her child's paternal grandfather. Within a few hours, someone had moved the car into the grandfather's driveway, where the grandfather found Garrett and a man he didn't recognize. The grandfather said the man was in the passenger seat, and Garrett stood right next to the car on the driver's side and asked the grandfather for motor oil. Within minutes of the grandfather's leaving, police discovered someone had switched out the car's regular plates and replaced them with paper dealership license plates. Police found the regular license plates and the owner's title in the trash can in the yard between the grandfather's house and Garrett's grandmother's house. Moreover, the paper license plates had Garrett's fingerprints on the front and back. From this evidence, a reasonable jury could infer Garrett knew the car was stolen and was acting to conceal that fact to maintain possession of the vehicle.
Garrett argues mere presence near stolen property cannot alone support a conviction for receiving stolen property. She is right on that point. But the evidence showed more than proximity. The jury reasonably could have (and apparently did) find Garrett exercised control over the stolen car by moving it into and out of the driveway and switching out the license plates. (People v. Hallman (1973) 35 Cal.App.3d 638, 641 ["Although mere possession of a stolen vehicle may not suffice to sustain a conviction, the attributes of the possession—time, place, and manner—may furnish the additional quantum of evidence needed"].)
Viewing all this evidence in the light most favorable to the judgment, we conclude a reasonable trier of fact could have concluded appellant possessed the car and knew it to be stolen. We must therefore uphold the conviction.
B. Jury Instruction Challenges
Garrett argues the trial court misinstructed the jury in two ways—failing to require they find knowledge the car was stolen to convict on the Section 10851(a) count and instructing they could infer guilt on both counts from evidence she possessed recently stolen property if there was some corroborating evidence of her guilt. We review de novo whether a jury instruction correctly states the law. (People v. Posey (2004) 32 Cal.4th 193, 218.) When we review a potentially misleading jury instruction, we ask '"whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way' that violates the Constitution." (People v. Ayala (2000) 24 Cal.4th 243, 289.)
1. The Section 10851 instruction
The trial court instructed the jury that "To prove that the defendant is guilty of" violating Section 10851(a) by "unlawfully driving a vehicle" the "People must prove that: [¶] 1. The defendant drove someone else's vehicle without the owner's consent; AND [¶] 2. When the defendant did so, she intended to deprive the owner of possession or ownership of the vehicle for any period of time." Garrett argues the trial court erred by failing to instruct the jury they also had to find she knew the car was stolen to convict her of unlawful driving without consent. We disagree.
Knowledge is not an element of the Section 10851(a) offense—specific intent to deprive the owner of possession is. (People v. Green (1995) 34 Cal.App.4th 165, 180 (Green).) As the Court of Appeal wrote in Green, "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." (Id. at pp. 179-180.) "[E]vidence appellant knew the vehicle had previously been stolen . . . would have supported a finding of the second circumstance," namely that the offender had specific intent to deprive the owner of possession despite a lack of proof that she participated in taking the vehicle. (Id. at p. 180.) It follows "knowledge that the vehicle was stolen is not an element of the offense . . . [but] is merely one of various alternative factors evidencing an intent to deprive the owner of title and possession." (Ibid.) We therefore conclude the trial court did not err when it instructed the jury on the elements of a Section 10851(a) driving offense.
Unlawfully taking a vehicle with intent to deprive the owner of possession or ownership for any period also violates Section 10851(a). That kind of violation is not in play here because the evidence shows someone other than Garrett took the car.
Garrett urges us not to follow Green, which she says bases its conclusion on People v. McFarland (1962) 58 Cal.2d 748, 754. The problem with the derivation, she says, is that McFarland stands for a different proposition—that possession of recently stolen property together with corroborating evidence permits the inference that defendant knew the property was stolen. We agree with this characterization of the holding of McFarland, but not with the characterization of that decision as the source of the holding that knowledge is not an element of the Section 10851(a) driving offense. The Green court based its holding on the plain language of the statute, as confirmed by other court decisions. (E.g., People v. Windham, supra, 194 Cal.App.3d at p. 1590 ["The elements necessary to establish a violation of section 10851 of the Vehicle Code are the defendant's driving or taking of a vehicle belonging to another person, without the owner's consent, and with specific intent to permanently or temporarily deprive the owner of title or possession"].) The trial court's jury instruction tracks the language of the statute, so we conclude there was no error.
In any event, we fail to see how not instructing the jury on knowledge could have prejudiced Garrett. Though knowledge the vehicle was stolen is not an element of the Section 10851(a) driving offense, it is an element of the receiving stolen vehicle offense. (People. v. Russell, supra, 144 Cal.App.4th at p. 1425.) So, the trial court instructed the jury that to convict Garrett of receiving a stolen vehicle it had to find that when she "received/concealed or withheld/aided in concealing or withholding the vehicle, she knew that the vehicle had been stolen." The jury convicted Garrett of receiving stolen property, thus it necessarily found she knew the vehicle had been stolen when she received it or concealed it. In view of that finding, we cannot find it likely in any degree that the jury would have reached a result more favorable to Garrett had the trial court instructed the jury it had to find such knowledge to convict her of violating Section 10851(a).
2. The instruction on possession of the recently stolen vehicle
Garrett argues the trial court's instruction regarding the possession of recently stolen property permitted the jury to find her guilty of both counts without proof beyond a reasonable doubt that she possessed or received a vehicle she knew had been stolen. She says the instruction therefore lowered the prosecution's burden of proof and violated her due process rights. Defense counsel objected at trial to delivering the instruction.
The People argue defense counsel withdrew the objection, but the portions of the transcript they point to show defense counsel acquiescing to slight changes to the language of the instruction, not endorsing its inclusion wholesale. In any event, as the People concede, because the issue relates to Garrett's substantial rights, we may entertain the claim anyway. (Pen. Code, § 1259; People v. Holmes (2007) 153 Cal.App.4th 539, 544.)
Using CALCRIM No. 376 as a basis, the trial court instructed the jury about the effect of evidence that Garrett possessed recently stolen property. "If you conclude that the defendant knew she possessed property and you conclude that the property had, in fact, been recently stolen, you may not convict the defendant of unlawful driving of a stolen vehicle or unlawful possession of a stolen vehicle based on those facts alone. However, if you also find that supporting evidence tends to prove her guilt, then you may conclude that the evidence is sufficient to prove she committed unlawful driving of a stolen vehicle or unlawful receipt of a stolen vehicle. [¶] The supporting evidence need only be slight and need not be enough by itself to prove guilt. You may consider how, where, and when the defendant possessed the property along with any other relevant circumstances tending to prove her guilt of unlawful driving of a stolen vehicle or unlawful receipt of a stolen vehicle. [¶] Remember that you may not convict the defendant of any crimes unless you are convinced that each fact essential to the conclusion of the defendant is guilty of that crime has been proved beyond a reasonable doubt."
California courts repeatedly have upheld CALCRIM No. 376 and its predecessor (CALJIC No. 2.15) against similar constitutional challenges. (E.g., People v. Holt (1997) 15 Cal.4th 619, 676-677; People v. Johnson (1993) 6 Cal.4th 1, 37-38, disapproved on other grounds in People v. Rogers (2006) 39 Cal.4th 826, 879; People v. Lopez (2011) 198 Cal.App.4th 698, 710-711 (Lopez).)
As the Lopez court explained, the instruction "prohibits the jury from drawing an inference of guilt based solely on evidence that the appellant knowingly possessed recently stolen property. The jury is allowed, however, to draw an inference of guilt where there is additional supporting evidence, even if the supporting evidence would not be sufficient, by itself, to constitute proof beyond a reasonable doubt. 'As long as the corroborating evidence together with the conscious possession could naturally and reasonably support an inference of guilt, and that inference is sufficient to sustain a verdict beyond a reasonable doubt, we discern nothing that lessens the prosecution's burden of proof or implicates a defendant's right to due process.'" (Lopez, supra, 198 Cal.App.4th at p. 710.)
It is of no import that the instruction permits conviction on corroborating evidence that is "slight." "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 [the charged crime]. [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.' [Citation.] Thus, CALCRIM No. 376 does nothing to diminish the prosecution's burden of proof." (Lopez, supra, 198 Cal.App.4th at p. 711.)
Garrett properly acknowledges this line of authorities, but argues her case is different because there was so little evidence to establish her possession of the stolen vehicle or knowledge it had been stolen. She points out that our Supreme Court warned that "where the evidence relating to 'possession' is conflicting or unclear, an unqualified instruction . . . should not be given, for it could easily mislead the jury into assuming that the defendant's possession has been established when, in actuality, the issue is in doubt." (People v. Morris (1988) 46 Cal.3d 1, 40.) In Morris, the Supreme Court found use of the predecessor instruction to be at least problematic because "the only evidence of defendant's possession of stolen property was [a witness's] testimony that defendant was the man or 'looked like' the man who presented the Sears card which had been loaned to the victim . . . [Thus,] the issue of whether the property had been 'stolen' from the victim was clearly an open question." (Id. at pp. 40-41.)
This case is different because the circumstantial case was quite strong. It is uncontested the car was stolen from J.L. It is also uncontested the car was parked near houses Garrett frequented and later moved in and out of the driveway there. A witness put Garrett next to the driver's side of the car shortly after it appeared in the driveway and just before it was moved back to the street. Garrett was the only person anyone saw near the car other than her male companion, who was seated in the passenger seat when Garrett was asking her child's grandfather for motor oil. All this evidence suggests strongly that Garrett was in possession of the vehicle and the person who moved it. The fact that her fingerprints were found on the temporary license plates placed on the car during this interval suggests both that she was in possession of the car and that she knew it was stolen.
We therefore conclude CALCRIM No. 376 is an accurate statement of the law as applied to the facts of this case, and the trial court did not err by using it in instructing the jury.
In any event, even if we concluded the instruction was erroneous, we would find no prejudice. As in Morris, the trial court also instructed the jury "[s]ome of these instructions may not apply depending on your findings about the facts of the case. Do not assume, just because I give a particular instruction, that I am suggesting anything about the facts. After you have decided what the facts are, follow the instructions that do apply to the facts as you find them." (See People v. Morris, supra, 46 Cal.3d at p. 41.) Where the trial court instructs the jury to disregard any instructions it finds to be inapplicable, we may presume the jury followed this instruction and ignored the inapplicable instructions. (People v. Holloway (2004) 33 Cal.4th 96, 152-153.) In view of this instruction, we conclude there is no likelihood delivering CALCRIM No. 376 misled the jury.
III
DISPOSITION
We affirm the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH
J. We concur: RAMIREZ
P. J. McKINSTER
J.