Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 07WF0091, Dan McNerney, Judge.
Vicki Marolt Buchanan, 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, Barry Carlton and Sharon L. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
SILLS, P. J.
Jose Rodriguez Hernandez (Hernandez) was found guilty of unlawfully taking a vehicle (Veh. Code, § 10851, subd. (a)) and resisting, delaying or obstructing an officer (Pen. Code, § 148, subd. (a)). He admitted a prior conviction for unlawfully taking a vehicle (Pen. Code, § 666.5, subd. (a)) and a previous term in prison (Pen. Code, § 667.5, subd. (b)). He was sentenced to an aggregate three-year prison term. On appeal, Hernandez contends the trial court erroneously refused to give the requested instruction on mistake of fact. We affirm.
FACTS
Phillip Hagen and his wife befriended Hernandez when he washed their car windows at a strip mall in Greeley, Colorado in August or September 2006. Hernandez explained he was a transient from California. The Hagens gave him a ride to his motel and later brought him clothing and other necessities. They gave him their home telephone number, saw him several times during the fall, and gave him assistance from time to time.
Hernandez asked to borrow the Hagens’ car on Christmas Eve, 2006. He said he wanted to visit his wife who was in the hospital in Colorado Springs, about two and a half to three hours away from Greeley by car. Hagen agreed to loan him his 1994 Cadillac, but cautioned Hernandez about the condition of the car. “The tires were wearing down on it, it needed a front-end alignment. It couldn’t really have been driven too far.” Hagan told Hernandez to stay out of the mountains and stick to the “front range area,” i.e., the “flat-land area just before the mountains.” The drive to Colorado Springs was “within the front range.” Hernandez said he would bring the car back the next afternoon, Christmas Day. Hagan “was considering a day or two, if he needed it for an extra day. He said he only needed it for the one day, that he would have it back by 1 P.M. the next day.”
On Christmas Day, Hernandez did not return the car. Some snowstorms had come through the front range area. “We were starting to get concerned about him because there[ were] a lot of cars that ended up in the ditch at that point.” The Hagens did not call the police that day. “We decided to give him some added time . . . . Because of the snow, if he had gone to Colorado Springs, he might have been delayed coming back with the vehicle.” The next day, Hagen found out his vehicle had not been reported disabled by the storm. He called the police and explained the situation. The police officer told him one option was to report the car stolen. “I didn’t really want to report the car stolen right away. I didn’t really want to get him in trouble if it was a misunderstanding or other issues.” He decided not to report it stolen at that time. Later that day, Hagen called a friend who also knew Hernandez and who had left with Hernandez in the Hagens’ car. The friend “suggested as his personal opinion that I should call the police.” After talking to the friend, Hagen called the police department again, this time reporting the car stolen.
On January 8, 2007, Officer Cynthia Sawyer, a patrol officer for the City of Garden Grove, saw a 1994 Cadillac Seville with Colorado license plates parked at an apartment complex on Shelley Drive. Sawyer contacted her dispatch and learned that the vehicle had been reported stolen in Colorado and that the suspect, Hernandez, lived in that apartment complex. She also learned Hernandez had a felony warrant for his arrest. She received assistance from five other officers, and they knocked on the windows and doors and called to Hernandez, attempting to make contact with him. After two and a half hours, the officers entered the apartment. Officer John Casaccia searched the walk-in closet and discovered Hernandez underneath a pile of clothing on the floor. No other occupants were found in the apartment. Sawyer found the Hagens’ car keys on a table inside the apartment.
DISCUSSION
Hernandez asked the trial court to give the mistake of fact instruction, which tells the jury it must find the defendant not guilty if his conduct would have been lawful under the facts as he reasonably believed them to be. (CALCRIM No. 3406.) Hernandez argued Hagen’s hesitation to report the car stolen and his desire to give Hernandez the benefit of the doubt could allow the jury to infer that Hernandez misunderstood the agreement and thought he had permission to take the car to California. The trial court rejected the instruction, explaining that Hagen’s speculation about how Hernandez might have interpreted the agreement was not evidence establishing a mistake of fact. “[B]ecause I don’t find substantial evidence to support that, I’ve got to deny your request for a mistake in fact instruction.”
On appeal, Hernandez contends the trial court erroneously required substantial evidence to support the requested instruction. He argues the correct standard for a requested instruction is whether there is any evidence to support it. He is wrong.
In People v. Flannel (1979) 25 Cal.3d 668, the Supreme Court explained the standard for requested instructions: “Many cases cite, often without elaboration, language in [older cases], to the effect that jury instructions must be given whenever any evidence is presented, no matter how weak. To the extent that a decision of any court interprets these cases to require instructions without evidence substantial enough to merit consideration, it is disapproved. [Citations.]” (Id. at pp. 684-685, fn. 12.) “In other words, ‘[t]he court should instruct the jury on every theory of the case, but only to the extent each is supported by substantial evidence.’ [Citation.]” (Id. at p. 685; see also People v. Prince (2007) 40 Cal.4th 1179, 1265.)
There was no substantial evidence to support the requested instruction. The only evidence of the agreement between the Hagans and Hernandez came from the testimony of Hagan. Hernandez said he needed the car to visit his wife in Colorado Springs and promised to have the car back the next day. Hagan agreed to loan him the car under those conditions, telling him to stay out of the mountains and stick to the front range. When Hernandez failed to return at the appointed time, Hagan gave him the benefit of the doubt and waited for a day to report the car stolen. Hernandez argues this evidence supports the inference that Hernandez somehow misinterpreted the arrangement and reasonably believed he could take the car to California for several weeks. It does not.
DISPOSITION
The judgment is affirmed.
WE CONCUR: O’LEARY, J., IKOLA, J.