Opinion
2d Crim. No. B231251
12-28-2011
THE PEOPLE, Plaintiff and Respondent, v. RENE S. HERRERA, Defendant and Appellant.
California Appellate Project, under appointment by the Court of Appeal, Ronnie Duberstein, Staff Attorney, for Appellant. Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Kenneth C. Byrne, Supervising Deputy Attorney General, David C. Cook , Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.111.5.
(Super. Ct. No. PA068179-01)
(Los Angeles County)
Rene S. Herrera was granted probation after a jury convicted him of grand theft auto. (Pen. Code § 487, subd. (d)(1).) He appeals, contending that the trial court committed instructional error. We affirm.
All statutory references are to the Penal Code.
Facts
On the morning of July 10, 2010, Camerina Zavala reported that her 2003 Toyota Tacoma truck was stolen outside her residence. A few hours later, Los Angeles Police Officer Neil Warren received a Lojack notification that the truck was parked on Van Nuys Boulevard near Canterbury in the San Fernando Valley. Two "For Sale" signs were in the truck window and listed a phone number.
Officer Warren called the phone number, pretending to be a buyer. Appellant answered and identified himself as "Jose." Appellant said the sale price was $4,000, that the truck "ran good," and that if Officer Warren called back at 12:45 p.m. appellant's nephew, Miguel, would meet him at the truck.
Police "staked out" the truck and observed another buyer test-drive the truck, accompanied by Miguel Rosales. Following a traffic stop, Rosales tried to flee and was arrested.
Officer Warren called the phone number again. Appellant answered and said he was trying to locate the truck. Officer Warren offered to help. Appellant said that he was in a black GMC Envoy, searching the area at the I-5 freeway and Van Nuys Boulevard.
Officer Warren stayed on the phone, drove to the area, and saw appellant in an Envoy talking on a blue cell phone. Appellant made eye contact with Officer Warren, realized that he was talking to a police officer, and immediately threw the cell phone to the passenger side of the Envoy. No one else was in the vehicle or walked away from it.
Officer Warren detained appellant and recognized his voice as that of Jose. When Officer Warren redialed the number on the "For Sale" sign, the blue cell phone rang. Inside the Envoy, on the center console, was the registration and title documents for the stolen truck.
At trial, appellant testified that his friend "Jose" purchased cars at auctions and sold them. Before the arrest, appellant drove Jose to the San Fernando Valley where Jose had a truck for sale. After they discovered the truck was missing, Jose received a phone call from a buyer and handed the cell phone to appellant to translate the call from English to Spanish. Appellant claimed that Jose took the cell phone and walked away when the police approached. Appellant, however, could not explain why the cell phone was on the front seat of the Envoy.
Grand Theft Instruction
Appellant argues that the jury was misinstructed. The trial court gave the standard CALCRIM 1800 theft instruction: "The defendant is charged with grand theft.
To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant took possession of property owned by someone else; [¶] 2. The defendant took the property without the owner's consent; [¶] 3. When the defendant took the property he intended to deprive the owner of it permanently or to remove it from the owner's possession for so extended a period of time that the owner would be deprived of a major portion of the value or enjoyment of the property; [¶] AND [¶] 4. The defendant moved the property, even a small distance, and kept it for any period of time, however brief." (CALCRIM 1800.) The jury was instructed that theft of an automobile is grand theft. (CALCRIM 1801.)
Appellant argues that grand theft requires that the property be taken "from the owner's possession," i.e., that the property be severed from the possession of the owner. The jury was correctly instructed that, in order to convict, it had to find that appellant "took possession" of property owned by someone else, without the owner's consent, with the intent "to remove it from the owner's possession," and that appellant "moved" the property.
Appellant asserts that grand theft auto requires that the taking be directly from the owner. But, that is not the law. "Theft by larceny may be committed . . . without the victim ever being present. (See § 484, subd. (b).) " (People v. Gomez (2008) 43 Cal.4th 249, 254.) An instruction that the property must be taken directly from the victim refers to grand theft of a person (§ 487, subd. (c)) or carjacking (§ 215), not grand theft auto (§ 487, subd. (d)(1)).
Grand theft of a person requires that the defendant take property " 'actually upon or attached to the person, or carried or held in the actual physical possession - such as clothing, apparel, or ornaments, or things contained therein, . . . or property held or carried in the hands, or by other means, upon the person . . . . [Citation.]' " (In re Jesus O. (2007) 40 Cal.4th 859, 863.)
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Trespassory Taking
Appellant's assertion that theft by larceny requires the property to be "severed" from the owner's direct possession is also without merit. The "taking" element of theft by larceny "has two aspects: (1) achieving possession of the property, known as 'caption,' and (2) carrying the property away, or 'asporation.' [Citations.]" (People v. Gomez, supra, 43 Cal.4th at p. 255.) To constitute a caption, the defendant must secure dominion and control of the property by a "trespass in the taking." (People v. Brock (2006) 143 Cal.App.4th 1266, 1275, fn. 4.) There is no requirement that the property be taken from the immediate possession of the owner. (See People v. Hutchings (1908) 8 Cal.App. 550, 553-554 [theft of steer] West's Cal. Jur. 3d (2009) vol. 18A, Criminal Law: Crimes Against Property § 120, pp. 165.) If the rule was otherwise, an auto thief could steal cars from shopping centers and overnight parking lots and never be convicted of grand theft auto.
There is no requirement that the property be "severed" from the owner's direct possession. In People v. Shannon (1998) 66 Cal.App.4th 649 the defendant removed clothes from a store shelf, put the clothes in bag, and told the cashier he was returning the clothes for a refund. Defendant was convicted of felony petty theft and appealed on the theory that asportation (i.e., carrying the property away) does not occur unless the clothes are "severed" from the possession of the owner by taking the clothes outside the store. The Court of Appeal held that "one need not remove property from the store to be convicted of theft of the property from the store. [Citations.] One need only take possession of the property, detaching it from the store shelves or other location, and move it slightly with the intent to deprive the owner of it permanently." (Id., at p. 654.)
Claimed Vagueness of Theft Instruction
Appellant argues that the jury may have misapplied the instruction on grand theft because it is vague. Appellant did not object to the instruction or request an amplification, forfeiting any theoretical claim of instructional error. (People v. Welch (1999) 20 Cal.4th 701, 757.) Forfeiture aside, there is no reasonable likelihood that the jury misunderstood and misapplied the instruction. (People v. Young (2005) 34 Cal.4th 1149, 1202.)
Appellant speculates the jury may have believed the truck was stolen by someone else, such as Jose. If appellant obtained possession from the original thief and tried to sell it, the crime would be receiving stolen property. Appellant, however, claimed that he never saw the truck or tried to sell it. This eviscerates the speculative claim.
The jury discredited appellant's testimony about Jose, the fictitious auto trader, and for good reason. Officer Warren spoke to Jose on the phone and recognized appellant's voice as that of Jose. Appellant told him the truck "ran good," and that he could buy it for $4,000 by meeting his nephew (Miguel) at the truck and paying him. Miguel showed up at the truck, took another buyer on a test drive, and was arrested. Minutes later, Officer Warren spoke to appellant on the cell phone, saw appellant using the blue cell phone and detained him, confirmed the phone number on the "For Sale" sign was the cell phone number, and found the truck registration and title documents on the center console in the Envoy.
Possession of a recently stolen car is strong circumstantial evidence of an unlawful taking. (See People v. Wissenfeld (1951) 36 Cal.2d 758, 763-764 [possession of stolen vehicle 25 days after theft]; People v. Anderson (2007) 152 Cal.App.4th 919, 947-949; People v. Phelps (1961) 192 Cal.App.2d 12, 15; People v. Clifton (1985) 171 Cal.App.3d 195, 199-200.) "While the mere possession of stolen property is not alone sufficient to sustain a conviction of grand theft [citation], such possession plus 'slight corroborative evidence of other inculpatory circumstances' will suffice. [Citations.]" (People v. Wissenfeld, supra, 36 Cal.2d 758, 763.) The evidence here is compelling. Appellant stole the truck and, using the Jose alias, tried to sell it by posting a "For Sale" sign and phone number in the truck window.
The judgment is affirmed.
NOT TO BE PUBLISHED.
YEGAN, Acting P.J. We concur:
COFFEE, J.
PERREN, J.
Beverly O'Connell, Judge
Superior Court County of Los Angeles
California Appellate Project, under appointment by the Court of Appeal, Ronnie Duberstein, Staff Attorney, for Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Kenneth C. Byrne, Supervising Deputy Attorney General, David C. Cook , Deputy Attorney General, for Plaintiff and Respondent.