Opinion
F077393
06-03-2020
THE PEOPLE, Plaintiff and Respondent, v. MIGUEL DANIEL LANDEROS, Defendant and Appellant.
Rachel Varnell, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Henry J. Valle, Deputy Attorneys 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Kern Super. Ct. No. BF170697A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Gary T. Friedman, Judge. Rachel Varnell, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Henry J. Valle, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Appellant/defendant Miguel Daniel Landeros was convicted of multiple felonies when he accosted his former girlfriend, carjacked her car, kidnapped her, and beat her. At trial, the victim testified that he had assaulted her on two prior occasions. He was sentenced to 11 years eight months in prison.
On appeal, defendant argues his conviction for carjacking (Pen. Code, § 215, subd. (a)) must be reversed because the jury was improperly instructed that it could rely on evidence of his prior acts of domestic violence to find him guilty of that charge. Defendant argues the instruction was erroneous because carjacking is not a domestic violence offense. Defendant further argues that while his attorney did not object to the instruction, we must address the issue because the instruction violated his substantial rights or, in the alternative, his attorney was prejudicially ineffective for failing to object.
Defendant further argues his conviction for unlawfully taking or driving the victim's car (Veh. Code, § 10851, subd. (a)) must be reversed for insufficient evidence, because the jury could have relied on the legally incorrect theory that he took the vehicle in the absence of any evidence that the car was worth more than $950.
We reverse defendant's conviction for unlawfully taking or driving the victim's car based an instructional error and remand for further appropriate proceedings, and otherwise affirm.
FACTS
In November 2016, defendant and E.E. began an intimate dating relationship. In August 2017, they began to live together. Prior incidents
At trial, E.E. testified that defendant had physically abused her twice before the incident in this case.
As we will explain below, the court granted the prosecution's motion to introduce evidence of defendant's prior acts of domestic violence pursuant to Evidence Code section 1109.
On October 9, 2017, defendant and E.E. argued while they were in E.E.'s 2015 Toyota Corolla. Defendant broke the interior rearview mirror from the front windshield and used it to hit E.E. on the back of her head. E.E. was injured and could not move her head, but defendant would not let her get medical help. About four hours later, E.E. went to the hospital and received treatment for a concussion. E.E. falsely told the nurse that four unknown girls had assaulted her. E.E. testified she lied because she loved defendant and did not want him to get in trouble. E.E.'s then-employer required her to get a police report so she could miss work for one week. E.E. testified she filed a police report and falsely told the same story to the officer: that four unknown girls assaulted her. E.E. testified defendant had the rearview mirror repaired and reattached to her car.
On October 31, 2017, E.E. and defendant argued because she needed to leave the house to see her mother, who was very ill. Defendant was angry and told her not to leave. On that same day, they were in the car together, and E.E. said she did not want to be with him anymore. Defendant punched her in the face. E.E. did not report the incident because she loved him. However, she decided to end their relationship that day and left defendant.
After she left defendant, E.E. lived with her mother in Bakersfield. Defendant tried to call E.E. using his own cell phone, but she never took the calls. On a few occasions, she answered calls from private or blocked numbers and realized it was defendant calling, so she would hang up. Defendant confronts E.E.
On the morning of December 11, 2017, E.E. was scheduled to begin a new job at an insurance company. She had not told defendant about her new job. Around 7:45 a.m., E.E. left her mother's house in her Toyota and drove to a nearby AM/PM store on Ming Avenue to put gasoline in her car.
E.E. stopped at the gas pumps and got out of her car. She realized defendant was standing near her. Defendant asked where she was going. E.E. said she was running late for her job, she did not want to talk to him, and she had to go. Defendant insisted on driving her to work. She refused. Defendant became angry, cursed her, used racial slurs, and accused her of having other people drive her car and not letting him do it. Defendant forces E.E. into the car
Defendant tried to take the car keys from E.E.'s hand. E.E. hid them behind her back and tried to get into her car. Defendant closed the driver's door so she could not get in. Defendant again insisted he was going to drive her to work. E.E. refused and said, " 'No, you're not. Leave me alone.' "
Defendant punched E.E. on the right side of her face and mouth. She was bleeding from her lips and mouth. Defendant forcibly grabbed the car keys from her hand and cut her finger. E.E. begged him to give back the keys. Defendant cursed her, and again punched her in the mouth.
E.E. continued to cry. Defendant opened the car's back door, picked up E.E., "shoved" her into the back seat, and closed the door on her foot. She could not get out of the car because she had previously engaged the child locks on the backdoors. Defendant recklessly drives E.E. to her new workplace
Defendant got into the driver's seat of E.E.'s car and drove out of the gas station. E.E. testified he drove recklessly, swerved into adjoining lanes, and drove through stop signs and red lights. Defendant accused E.E. of cheating on him. He kept asking her where she was going to work. E.E. refused to answer. She was crying and hysterical. Defendant tried to hit her, but he could not reach her in the backseat.
E.E. finally told defendant where her new office was located because she thought she would be able to escape when he got there. Defendant got mad because she was crying and cursed her and told her to shut up.
Defendant drove into the insurance office's parking lot. Defendant got out of the car, unlocked the child locks on the back door, and let E.E. get out. Defendant yelled at her and accused her of not wanting to work because she was a "lazy-ass bitch."
E.E. walked away from her car and immediately dialed 911 on her cell phone. However, she could not hear anything on her cell phone because the Bluetooth speaker was still activated inside her car. Defendant realized she was using the cell phone and got out of the car. He picked up E.E., put her in the car's front passenger seat, and called her "a bitch." "To him, that was my name. 'Bitch.' " E.E. tried to resist and punch him in the face, but she missed. Defendant was upset that she had tried to call 911; he grabbed her cell phone and broke it.
E.E. testified she tried to call the police because defendant did not have a car, and "I thought that's all he wanted was to take my car. I never thought he was going to turn around and pick me up and put me back inside. I thought that's all he wanted. Our whole relationship was that. All he wanted from me was whatever I had to offer him." Defendant punches E.E. in the head
E.E. testified defendant got back into the driver's seat and repeatedly punched her in the back of her head with his fists. Defendant started the car and drove toward the insurance office's entrance doors. Defendant told E.E. to get out, but then grabbed her hair, pinned her face down in his lap, and repeatedly punched her in the head.
As defendant threw punches at E.E., he broke the car's interior rearview mirror. Defendant held onto her hair, kept her head pinned down on his lap, continued to punch her head, and hit her with the broken rearview mirror. Defendant started driving, and E.E.'s broken cell phone rang through the car's Bluetooth speaker system. Defendant answered the call, and it was Mariah Almengar, E.E.'s cousin, who asked where she was. E.E. quickly hung up because she did not want defendant to start hitting her again.
E.E. testified defendant was mad because he cut his hand when he broke the rearview mirror, and he was bleeding. He cursed E.E. and said it was her fault, and again grabbed her hair and pinned her head down on his lap. Defendant banged her head into the car's center console with such force that her nose was bleeding. She was hurt and crying, and blood was running down her face. Defendant drives back to the AM/PM store
Defendant drove away from the insurance office. E.E.'s head was hurting, and she leaned back in the front passenger seat. She realized defendant was retracing his route and driving back to the AM/PM store. He drove recklessly and was going 80 to 90 miles per hour.
Defendant told E.E. that he hated her, he did not need her, and he had "other bitches." E.E. asked why he could not leave her alone. Defendant said she was his "bitch," and he could tell her what to do. E.E. stopped talking because she realized it just made defendant hit her.
Defendant arrived at the AM/PM store and pulled up to the gas pumps, about an hour after he initially pushed her into the car. Defendant told E.E. to get out and pump gas. E.E. said she could not do it because she was having trouble breathing. Defendant complained that she never did anything and again pulled her head down to the driver's seat. He hit her in the back of the head with his fists. E.E. tried to hit him back, but he used the broken rearview mirror and kept hitting her in the back of the head. Defendant also bit her on her back. He put his hands around her neck and applied pressure. E.E. had trouble breathing, screamed at him to stop, and said she was sorry. E.E. runs into the store
Defendant finally stopped hitting E.E. He got out of the car, took the keys, and went into the store to pay for gasoline. Defendant tried to use a credit card to pay for gasoline, but the store clerk could not accept it. The clerk noticed defendant had blood on his right hand and palm. Defendant got upset when he could not use his credit card and left "saying bad words."
When defendant walked out of the store, E.E. got out of the front passenger side of the car. Her face and nose were bruised, red, and swollen. Defendant saw her, and E.E. ran behind her car. Defendant got back into the driver's seat and drove around the pumps. E.E. thought defendant tried to hit her with the car.
Defendant yelled at E.E. and ordered her to get back into the car. E.E. refused. There were other customers at the gas pumps, and defendant drove away.
E.E. ran into the store. She was yelling and screaming for help. There was blood on her face and nose. E.E. told the clerks that she had argued with her boyfriend in the parking lot, he took her car, and she was scared of him. One of the clerks called 911 at approximately 8:49 a.m. and gave the phone to E.E. to report the assault. E.E. was crying and in pain when she talked to the dispatcher. The dispatcher told E.E. to wait at the store for an officer to get there. The clerks had her sit in the back room to protect her in case defendant returned.
While she waited for the police, E.E. used the store's telephone and called her cousin, Almengor, but she did not answer. E.E. called defendant's cell phone and was going to ask him to return her car. She was not sure of the number. She let it ring once and hung up. E.E. leaves the store
E.E. waited for 30 minutes, but an officer did not arrive at the store. E.E. left the store and walked to Almengor's house. It took her about 40 minutes to walk there. She was still bleeding from the injuries to her head. E.E. called 911 and reported she was waiting for the police at Almengor's house. E.E. called her sister, who picked her up and drove her to the police department to report the incident. When she got to the police department, an officer advised E.E. to wait at her residence for an officer to meet her. E.E. went to her mother's house and waited for the police.
After E.E. left the store, a man called the store's telephone. The clerk testified he was yelling so the clerk hung up. The clerk looked through the telephone's log and determined someone had called that same number from the store's telephone earlier in the day. E.E.'s statement to the police
At 1:46 p.m., Officer Pena responded to the home of E.E.'s mother. E.E. had swelling on the bridge of her nose, dry blood on the top portion of her head above the ears, a superficial cut to her finger, and an injury on the back of her head. There were cuts on her upper lip and a bite mark on her shoulder.
Officer Pena testified E.E. was nervous and afraid. She gave a statement that was consistent with her trial testimony about how defendant pushed her in the car and repeatedly assaulted her. E.E. said when they got back to the AM/PM store and she tried to escape, defendant drove the car within inches of her leg. Pena asked E.E. if she wanted an emergency protective order for defendant, and she said yes.
Officer Pena determined that based on E.E.'s account, defendant drove 11.4 miles with her in the car.
E.E. told Pena about the two prior incidents when defendant hit her in October 2017. E.E. admitted she had falsely reported to the police that unknown females assaulted her in the October 9 incident, and she lied about it because she loved defendant and did not want him to get in trouble.
After giving her statement, the police took photographs of her injuries. E.E. went to the hospital for an examination. Her face, cheeks, and nose were swollen, but she did not have any broken bones. She was given medication for the pain.
Later that same day, Officer Pena went to a residence associated with defendant, but he was not there. A wanted notice was issued for defendant's arrest for carjacking.
The police were unable to obtain any security videotape from the AM/PM store or the insurance office.
On December 13, 2017, E.E. found her car parked on the street about 15 minutes from her mother's house and notified the police. An officer responded and the car was unlocked. The interior rearview mirror had been broken off the front windshield and was on the front passenger floorboard. The front windshield was cracked where the mirror had been broken off. The car was eventually returned to her.
On the morning of December 19, 2017, defendant was arrested.
On January 3, 2018, Detective Schlosser conducted a telephonic interview with E.E. and asked about the prior incident on October 9, 2017. E.E. said defendant was not responsible and refused to say who attacked her. E.E. acknowledged that on December 11, 2017, when she was in the back room at the AM/PM store, she used the store's telephone and called defendant because she wanted to get her car back from him.
At trial, E.E. admitted that when she spoke to an officer in January 2018, she again claimed that four unknown girls assaulted her on October 9, 2017, and then said she did not want anything to do with the case. E.E. testified she made these statements because she was afraid.
DEFENSE EVIDENCE
Officer Wolter testified that on October 16, 2017, he took a report from E.E. She said four unknown females jumped her on October 9, 2017, and hit her in the face and head. E.E. said she was injured and went to the hospital for treatment. E.E. gave descriptions of the four suspects. E.E. said she never intended to file a report or press charges against anyone, but she needed the police report as proof for her employer. E.E. never mentioned defendant. Wolter did not see any visible injuries, and E.E. said all her injuries had healed.
CONVICTIONS AND SENTENCE
On March 21, 2018, after a jury trial, defendant was convicted as charged of count 1, kidnapping (Pen. Code, § 207, subd. (a)); count 2, carjacking (Pen. Code, § 215, subd. (a)); count 4, willful infliction of corporal injury on a person with whom he was formerly in a dating relationship (Pen. Code, § 273.5, subd. (a)); count 5, false imprisonment (Pen. Code, §§ 236, 237, subd. (a)); and count 6, unlawfully taking or driving a vehicle (Veh. Code, § 10851, subd. (a)). Based on the jury's guilty verdicts, the court found defendant violated probation in an unrelated case.
Defendant was also tried for count 3, assault with a deadly weapon, a motor vehicle (Pen. Code, § 245, subd. (a)(1)), and he was found not guilty.
On April 19, 2018, defendant was sentenced to an aggregate term of 11 years eight months based on the upper term of nine years on count 2, carjacking; a consecutive term of one year eight months (one-third the midterm) on count 1, kidnapping; and a consecutive term of one year (one-third the midterm) on count 4, corporal injury (Pen. Code, § 273.5, subd. (a)).
The court stayed the term imposed for count 6, unlawfully taking or driving a car, pursuant to Penal Code section 654, and vacated the conviction in count 3, false imprisonment, because it is a lesser included offense of count 1, kidnapping. The court imposed a concurrent term of two years in a probation revocation case.
DISCUSSION
I. Defendant's Prior Acts of Domestic Violence
As set forth above, E.E. testified that defendant had committed two prior uncharged acts of domestic violence in October 2017. The court admitted this evidence pursuant to Evidence Code section 1109. The court instructed the jury with CALCRIM No. 852, that it could consider the prior acts of domestic violence as to all charged offenses. Defense counsel did not object to the instruction.
All further statutory references in part I are to the Evidence Code unless otherwise indicated.
Defendant contends CALCRIM No. 852 was legally incorrect because it allowed the jury to consider the prior acts of domestic violence for all the charges, including count 2, carjacking. Defendant has not challenged the admission of the prior acts evidence, but argues the evidence was not relevant to carjacking because that offense does not involve domestic violence. Defendant asserts the instructional error was prejudicial and requires reversal of his conviction for carjacking. In the alternative, defendant argues that his defense attorney was prejudicially ineffective for failing to object to the instruction.
A. CALCRIM No. 852
As set forth above, E.E. testified defendant committed two prior acts of domestic violence against her on October 9 and 31, 2017. Prior to her testimony about these incidents, the court read CALCRIM No. 852 to the jury, evidence of uncharged domestic violence, and read it again during the instructional phase.
"The People are offering evidence that the defendant committed domestic violence, not charged in this case; specifically, on or about October 31st, 2017, the defendant assaulted [E.E.] by hitting her face;
"And/or, 2, on or about October 9th, 2017, the defendant attacked [E.E.], causing injuries that resulted in her obtaining medical treatment.
"Domestic violence means abuse committed against an adult who was a person formerly in a dating relationship with the defendant.
"Abuse means intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable fear of imminent serious bodily injury to himself or herself or to someone else.
"You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged domestic violence. Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is
proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true.
"If the People have not met this burden of proof, you must disregard this evidence entirely.
"Now, if you decide that the defendant committed the uncharged domestic violence, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit domestic violence and, based on that decision, also conclude that the defendant was likely to commit the crimes charged herein. If you conclude that the defendant committed the uncharged domestic violence, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of the crimes as charged herein. The People must still prove each charge and allegation beyond a reasonable doubt.
"Now, if you decide that the defendant committed the uncharged domestic violence, you may consider that evidence and weigh it together with all the other evidence received during the trial to help you determine whether the defendant committed the crimes as charged herein. Remember, however, that evidence of uncharged domestic violence is not sufficient alone to find the defendant guilty of the charged crimes herein. The People must still prove each charge beyond a reasonable doubt." (Italics added.)
B. Forfeiture
The court extensively discussed the instructions with the parties, and defense counsel did not object to CALCRIM No. 852. On appeal, however, defendant asserts the instruction was legally erroneous because it improperly allowed the jury to rely on the prior acts of domestic violence to determine whether he committed all the charged offenses, including count 2, carjacking. Defendant argues he has not forfeited review of his instructional claim because it violated his substantial rights and reduced the prosecution's burden of proof. We thus turn to the merits of his claim. (See, e.g., People v. Kerley (2018) 23 Cal.App.5th 513, 542 [defendant's failure to object to CALCRIM No. 852 did not forfeit claim that instruction violated substantial rights].)
C. Section 1109
The court admitted evidence of defendant's two prior uncharged acts of domestic violence against E.E. pursuant to section 1109.
"Evidence of prior criminal acts is ordinarily inadmissible to show a defendant's disposition to commit such acts. [Citation.] However, the Legislature has created exceptions to this rule in cases involving sexual offenses [citation] and domestic violence [citation]." (People v. Reyes (2008) 160 Cal.App.4th 246, 251; People v. Brown (2011) 192 Cal.App.4th 1222, 1232 (Brown).)
Section 1109 states that, subject to exceptions not applicable here:
"[I]n a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant's commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352." (§ 1109, subd. (a), italics added.)
"The admission of prior acts as propensity evidence encompasses both charged and uncharged acts. [Citations.]" (Brown, supra, 192 Cal.App.4th at p. 1233.)
"Section 1109 was intended to make admissible a prior incident 'similar in character to the charged domestic violence crime, and which was committed against the victim of the charged crime or another similarly situated person.' [Citation.] Thus, the statute reflects the legislative judgment that in domestic violence cases, as in sex crimes, similar prior offenses are 'uniquely probative' of guilt in a later accusation. [Citation.] Indeed, proponents of the bill that became section 1109 argued for admissibility of such evidence because of the 'typically repetitive nature' of domestic violence. [Citations.] This pattern suggests a psychological dynamic not necessarily involved in other types of crimes. [Citation.]" (People v. Johnson (2010) 185 Cal.App.4th 520, 532, fns. omitted.) "Section 1109 'reflects the legislative judgment that in domestic violence cases ... similar prior offenses are "uniquely probative" of guilt in a later accusation.' [Citation.]" (People v. Kerley, supra, 23 Cal.App.5th at p. 531.)
"Even if the evidence is admissible under section 1109, the trial court must still determine, pursuant to section 352, whether the probative value of the evidence is substantially outweighed by the probability the evidence will consume an undue amount of time or create a substantial danger of undue prejudice, confusion of issues, or misleading the jury. [Citation.] The court enjoys broad discretion in making this determination, and the court's exercise of discretion will not be disturbed on appeal except upon a showing that it was exercised in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]" (Brown, supra, 192 Cal.App.4th at pp. 1232-1233, fn. omitted.)
CALCRIM No. 852, as set forth above, has been repeatedly approved as a legally correct instruction when prior acts of domestic violence are introduced pursuant to Evidence Code section 1109. (See, e.g., People v. Reyes, supra, 160 Cal.App.4th at p. 252; People v. Johnson (2008) 164 Cal.App.4th 731, 739.)
D. Offenses "Involving Domestic Violence"
The jury in this case was instructed with CALCRIM No. 852 that it could consider defendant's two prior acts of domestic violence to determine whether he was guilty of all the charged offenses. Defendant contends this instruction was legally erroneous because it should not have applied to count 2, carjacking. Defendant argues carjacking is not "an offense involving domestic violence" as defined in section 1109, and the jury was improperly instructed that it could consider these prior acts to determine whether he committed carjacking.
"Section 1109 does not contain an enumerated list of offenses which are defined as those 'involving' domestic violence. However, section 1109, subdivision (d)(3) provides some guidance on the question[.]" (Brown, supra, 192 Cal.App.4th at p. 1234.)
" 'Domestic violence' has the meaning set forth in Section 13700 of the Penal Code. Subject to a hearing conducted pursuant to Section 352, which shall include consideration of any corroboration and remoteness in time, 'domestic violence' has the further meaning as set forth in Section 6211 of
the Family Code, if the act occurred no more than five years before the charged offense." (§ 1109, subd. (d)(3).)
Penal Code section 13700 defines "domestic violence" as "abuse committed against an adult or a minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom the suspect has had a child or is having or has had a dating or engagement relationship." (Pen. Code, § 13700, subd. (b).)
Penal Code section 13700, subdivision (a) defines "abuse" to mean "intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself, or another." (Pen. Code, § 13700, subd. (a), italics added.)
"Penal Code section 13700 subdivisions (a) and (b) together define domestic violence as requiring either bodily injury, attempted bodily injury, or placing the victim in 'reasonable apprehension of imminent serious bodily injury to himself or herself, or another.' [Citation.]" (People v. Ogle (2010) 185 Cal.App.4th 1138, 1144.)
Section 1109's second definition of domestic violence is based on Family Code section 6211, which defines the term "more broadly" than Penal Code section 13700. (§ 1109, subd. (d)(3); People v. Dallas (2008) 165 Cal.App.4th 940, 952-953.) The provisions of section 1109 apply if the current offense "falls within the Family Code definition of domestic violence even if it does not fall within the more restrictive Penal Code definition. [Citation.]" (People v. Ogle, supra, 185 Cal.App.4th at p. 1144.)
Section 1109 limits the Family Code's definition to domestic violence acts which occurred "no more than five years before the charged offense." (§ 1109, subd. (d)(3); People v. Brown, supra, 192 Cal.App.4th at p. 1234, fn. 15.) E.E. testified the two prior acts of domestic violence occurred in October 2017, just two months before the charged offenses.
Family Code section 6211 defines "domestic violence" as "abuse perpetrated against any of the following persons," including a cohabitant or former cohabitant as defined in Family Code section 6209, or a person "with whom the [defendant] is having or has had a dating or engagement relationship." (Fam. Code, § 6211, subds. (b), (c).)
As relevant to this definition, Family Code section 6203 states that "[a]buse is not limited to the actual infliction of physical injury or assault" (Fam. Code, § 6203, subd. (b)) and defines "abuse" to mean "any of the following." (Id. at subd. (a).)
"(1) To intentionally or recklessly cause or attempt to cause bodily injury.
"(2) Sexual assault.
"(3) To place a person in reasonable apprehension of imminent serious bodily injury to that person or to another.
"(4) To engage in any behavior that has been or could be enjoined pursuant to Section 6320." (Fam. Code, § 6203, subds. (a)(1)-(a)(4).)
Family Code section 6320, subdivision (a) authorizes the court to enjoin a party "from molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, credibly impersonating ..., falsely personating ..., harassing, telephoning..., destroying personal property, contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party."
G. Cases Defining "Domestic Violence" Offenses
"[T]he application of section 1109 ... turns on whether [the defendant] was 'accused' of domestic violence" (People v. Kerley, supra, 23 Cal.App.5th at p. 533, italics added), and the statute is "triggered by the nature of the accusation...." (Ibid., italics added.)
In People v. James (2010) 191 Cal.App.4th 478 (James), the defendant was convicted of burglary after he broke down the door of his former girlfriend. (Id. at p. 480.) The defendant argued that his prior acts of domestic violence were inadmissible because he was tried for burglary, it was not an " 'offense involving domestic violence,' " (id. at p. 480, fn. omitted) and "admission of prior acts of domestic violence may not be admitted in a burglary prosecution under any circumstances." (Id. at p. 482.) James acknowledged that burglary was not " a crime of domestic violence on its face," and held the prior acts were admissible under section 1109 because "the People sought to prove defendant's intent when he entered [the victim's] house was to commit domestic violence ...." (James, at p. 484.)
"Although burglary is not, in every instance, an offense involving domestic violence, under the facts of this case the crime of burglary was an offense 'involving domestic violence.' Defendant broke down the door of [the victim], a person with whom he had a dating relationship, and repeatedly made threatening remarks towards her. His actions placed [her] in reasonable apprehension of imminent serious bodily injury to herself. Thus, his actions, which resulted in his conviction for burglary, involved domestic violence." (Id. at p. 483.)
In People v. Kerley, supra, 23 Cal.App.5th 513, the defendant was convicted of murdering his former girlfriend. The defendant argued that his prior assaultive acts of domestic violence against the victim were inadmissible because there was no evidence the victim was killed by an assaultive act. (Id. at p. 532.) Kerley rejected these arguments:
"To prove that [the defendant] murdered [the victim], the People were required to prove that he committed an act that caused her death with malice aforethought. [Citation.] Causing someone's death with malice aforethought unquestionably meets the Penal Code section 13700 definition of 'abuse' as 'intentionally or recklessly causing ... bodily injury.' [Citation.].... [¶] [The defendant's] argument that the People failed to prove that [the victim] died as a result of an assaultive act misses the point. Section 1109 is triggered by the nature of the accusation, not by the sufficiency of the evidence presented to prove that accusation." (Id. at pp. 532-533, fn. omitted.)
In People v. Brown, supra, 192 Cal.App.4th 1222, the defendant was convicted of strangling and murdering his girlfriend. The court admitted evidence of his prior acts of domestic violence committed against the victim and prior girlfriends. (Id. at pp. 1224- 1225, 1233-1234.) Brown held the court properly admitted his prior domestic violence acts against the victim and prior girlfriends. The prosecution's theory was that the defendant strangled and killed the victim because he was angry she broke up with him and dated another man, and the prosecution's evidence showed the defendant " 'intentionally or recklessly' caused bodily injury to [the victim], and placed her in 'in reasonable apprehension of imminent serious bodily injury' when he fatally strangled her. [Citation.]" (Id. at p. 1234.) Brown reviewed the legislative history of section 1109, and agreed "with the trial court's observation in this case that murder is 'the ultimate form of domestic violence,' and that defendant's prior acts of domestic violence were admissible based on the nature and circumstances of his relationship with and conduct toward [the victim]." (Id. at p. 1237.)
H. Carjacking
Defendant was charged in count 2 with carjacking in violation of Penal Code section 215, subdivision (a). "A conviction for carjacking requires proof that (1) the defendant took a vehicle that was not his or hers (2) from the immediate presence of a person who possessed the vehicle or was a passenger in the vehicle (3) against that person's will (4) by using force or fear and (5) with the intent of temporarily or permanently depriving the person of possession of the vehicle. [Citations.]" (People v. Magallanes (2009) 173 Cal.App.4th 529, 534.) "No express threat is necessary to establish the victim's fear. [Citations.]" (Ibid.) "The completed offense of carjacking requires 'asportation or movement of the motor vehicle.' [Citation.]" (People v. Capistrano (2014) 59 Cal.4th 830, 886, overruled on other grounds by People v. Hardy (2018) 5 Cal.5th 56.)
Carjacking "is a crime accomplished by fear or force," (People v. Capistrano, supra, 59 Cal.4th at p. 866) and "a crime of violence, distinct from robbery, and not merely a violation of the victims' property interest in their motor vehicle." (Id. at pp. 886-887.) Carjacking is defined as a "violent" felony. (Pen. Code, § 667.5, subd. (c)(17).)
I. Analysis
We find that defendant was accused in count 2 of an offense involving domestic violence within the meaning of the definitions contained in both the Penal Code and the Family Code, and the jury was properly instructed that it could consider the two prior domestic violence incidents as to that charge. As explained in People v. Megown (2018) 28 Cal.App.5th 157, "[b]eing 'accused of an offense involving domestic violence' " is a broad term which "means 'to include, contain, or comprehend within itself or its scope.' [Citation.]" (Id. at p. 166.) "Section 1109 is triggered by the nature of the accusation, not by the sufficiency of the evidence presented to prove that accusation." (People v. Kerley, supra, 23 Cal.App.5th at p. 533.)
As in James, carjacking is not "a crime of domestic violence on its face," but the entirety of the charges in this case flowed from defendant's intent to commit acts of domestic violence against E.E., and "the People sought to prove defendant's intent" when he committed the carjacking "was to commit domestic violence ...." (James, supra, 191 Cal.App.4th at p. 484.)
As in James and Brown, defendant committed the carjacking with the intent to commit acts of domestic violence against E.E. E.E. testified that she left defendant and moved in with her mother after he hit her the second time on October 31, 2017. She also testified he did not own a car. On the day of the offenses, defendant unexpectedly confronted E.E. at the gas pumps that were just five minutes away from her mother's house, even though he did not have a car. Defendant demanded to know where she was going and insisted that he was going to drive her to work. When she refused, he punched her in the face, grabbed her car keys from her hand, physically threw her into the back seat of her car, and drove away against her will. E.E. testified he drove recklessly and ran through stoplights and intersections. When he arrived at the insurance office, he appeared to let her get out of the car but assaulted her again when she tried to call for help and pushed her back into the car. He continued to physically assault her in the car as he recklessly drove back to the same market, nearly an hour after the ordeal began. When E.E. successfully escaped from her car, defendant again tried to force her into the car, but she evaded him, and he drove away with her vehicle and never returned it.
Based on the circumstances of the offense, defendant was accused in count 2 of committing "a violent act" that was punishable as "a 'violent felony,' " which "is clearly encompassed within the domestic violence definition of 'intentionally or recklessly causing or attempting to cause bodily injury' " to E.E., or placing E.E. in " 'reasonable apprehension of imminent serious bodily injury to ... herself ....' [Citations.]" (People v. Rucker (2005) 126 Cal.App.4th 1107, 1118; Pen. Code, § 13700, subds. (a), (b).)
Defendant's conduct also fell within the Family Code definitions of "intentionally or recklessly caus[ing] or attempt[ing] to cause bodily injury" to E.E. (Fam. Code, § 6203, subd. (a)(1)) and placing E.E. "in reasonable apprehension of imminent serious bodily injury" (Fam. Code, § 6203, subd. (a)(3)). He further engaged in "behavior that ... could be enjoined pursuant to Section 6320" by "attacking, striking, ... threatening, [or] battering" E.E. (Fam. Code, § 6320, subd. (a)(4)).
As a result, the court correctly instructed the jury with CALCRIM No. 852, that it could consider his two prior acts of domestic violence as to all the charged offenses in this case, including count 2, carjacking.
Moreover, even if the court erroneously admitted the two prior acts of domestic violence and instructed the jury to consider the evidence as to carjacking, any error is subject to the standard of prejudice set forth in People v. Watson (1956) 46 Cal.2d 818. (People v. Megown, supra, 28 Cal.App.5th at p. 167; People v. Ogle, supra, 185 Cal.App.4th at p. 1145.)
It is not reasonably probable that a result more favorable to defendant would have been reached if the jury had not been told to consider the prior acts evidence as to the carjacking charge. CALCRIM No. 852 instructed the jury that the prior uncharged acts were insufficient to find defendant guilty of the charged offenses, and the People still had the burden to prove each count beyond a reasonable doubt. E.E. testified in extensive detail about the entirety of the incident that began and ended at the AM/PM market. E.E.'s testimony about the carjacking was particularly supported by the discovery of her car, that was found abandoned on a street two days later.
Defendant asserts the alleged instructional error was prejudicial because the jury found defendant not guilty in count 3 of assault with a deadly weapon, based on the incident where defendant alleged drove the car toward E.E. as she escaped into the store at the end of the incident. Defendant asserts that since the jury found him not guilty of count 3, the jury had problems with E.E.'s credibility, and the two prior domestic violence incidents could have improperly bolstered her credibility and resulted in the guilty verdicts for the other charges, including carjacking.
Defendant's acquittal in count 3 supports the conclusion that the court's alleged evidentiary and instructional errors were not prejudicial. The jury's not guilty verdict in count 3 shows that it did not rely on the two prior acts of domestic violence to return the verdicts in this case but instead separately examined each count. The jury's verdict in count 3 may have resulted because E.E.'s testimony was not entirely clear as to whether defendant aimed the car at her, or he was turning around to drive out of the gas station area. In any event, defendant's acquittal in count 3 does not support his claim that the alleged evidentiary and instructional errors were prejudicial.
We conclude the court properly admitted the prior acts evidence and instructed the jury that the evidence was relevant to carjacking, and any possible error is not prejudicial. As a result, defendant's substantial rights were not violated.
As for defendant's alternative ineffective assistance argument, he must "show that 'counsel's performance was deficient, and that the defendant was prejudiced, that is, there is a reasonable probability the outcome would have been different were it not for the deficient performance.' [Citations.]" (People v. Woodruff (2018) 5 Cal.5th 697, 761-762.) Having concluded that defendant's substantial rights were not violated, counsel's failure to object was not prejudicial.
II. Defendant's Conviction in Count 6
Defendant was charged and convicted in count 6 of felony unlawfully taking or driving E.E.'s car in violation of Vehicle Code section 10851, subdivision (a). Defendant asserts the jury was not instructed that it had to find the car was worth $950 or more and, as a result, the jury may have relied on a legally incorrect theory to find him guilty. Defendant further argues that his felony conviction must be reduced to a misdemeanor since the jury was not instructed and did not find beyond a reasonable doubt that the value of the stolen vehicle exceeded $950 or, in the alternative, remanded for a possible new trial based on the instructional error.
All further statutory citations in part II are to the Vehicle Code unless otherwise indicated.
Section 10851, subdivision (a) states:
"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, whether with or without intent to steal the vehicle, or any person who is a party or an accessory to or an accomplice in the driving or unauthorized taking or stealing, is guilty of a public offense ...." (Italics added.)
"Unlawfully taking a vehicle with the intent to permanently deprive the owner of possession is a form of theft, and the taking may be accomplished by driving the vehicle away. For this reason, a defendant convicted under section 10851(a) of unlawfully taking a vehicle with the intent to permanently deprive the owner of possession has suffered a theft conviction ...." (People v. Garza (2005) 35 Cal.4th 866, 871 (Garza).)
"On the other hand, unlawful driving of a vehicle is not a form of theft when the driving occurs or continues after the theft is complete," which the Supreme Court has described as "posttheft driving." (Garza, supra, 35 Cal.4th at p. 871.) "Therefore, a conviction under section 10851(a) for posttheft driving is not a theft conviction." (Ibid.) To establish a posttheft driving offense, the prosecution must show a " 'substantial break' " between the taking and the posttheft driving of the vehicle. (People v. Page (2017) 3 Cal.5th 1175, 1188; People v. Lara (2019) 6 Cal.5th 1128, 1138.)
As a result of the enactment of Proposition 47, a theft-based violation of section 10851 can be a felony only if the value of the vehicle exceeds $950. (People v. Page, supra, 3 Cal.5th at pp. 1182-1183; People v. Gutierrez (2018) 20 Cal.App.5th 847, 854 (Gutierrez).) "While a theft-based violation of ... section 10851 may be punished as a felony only if the vehicle is shown to have been worth over $ 950, a violation committed by posttheft driving may be charged and sentenced as a felony regardless of value." (People v. Lara, supra, 6 Cal.5th at p 1137, fn. omitted.)
The California Supreme Court had previously declined to address whether a violation of section 10851 committed by taking a vehicle with the intent only of depriving the owner temporarily of possession (sometimes referred to as joyriding) must be treated as the equivalent of vehicle theft for purposes of Penal Code section 490.2. (People v. Page, supra, 3 Cal.5th at p. 1188, fn. 5; People v. Lara, supra, 6 Cal.5th at p. 1136, fn. 3.)
In People v. Bullard (2020) 9 Cal.5th 94, the court recently addressed "whether Proposition 47 ... requires courts to draw a distinction under section 10851 between permanent and temporary vehicle takings - granting sentencing relief to those who take vehicles permanently but denying relief to those who take vehicles temporarily. We conclude the answer to this question is no: A person who has unlawfully taken a vehicle in violation of section 10851 is not disqualified from Proposition 47 relief because the person cannot prove he or she intended to keep the vehicle away from the owner indefinitely." (Id. at p. 100.)
Bullard thus clarified:
"Except where a conviction is based on posttheft driving (i.e., driving separated from the vehicle's taking by a substantial break), a violation of section 10851 must be punished as a misdemeanor theft offense if the vehicle is worth $950 or less. In pre-Proposition 47 cases, where the defendant seeks resentencing or redesignation under Penal Code section 1170.18, the defendant bears the burden of proof to show the relevant facts; in cases arising, tried, or sentenced after Proposition 47 came into effect, the People bear that burden. [Citations.]" (Bullard, supra, 9 Cal.5th at p. 110.)
B. Gutierrez and Lara
In Gutierrez, supra, 20 Cal.App.5th 847, the defendant was convicted after a jury trial of a felony violation of section 10851, subdivision (a). (Gutierrez, at pp. 849, 853, 855.) Gutierrez acknowledged section 10851, subdivision (a) defined two different offenses: taking the vehicle with intent to permanently deprive the owner of possession, a form of theft; and posttheft driving, which was not a form of theft. After the enactment of Proposition 47, the defendant could not be convicted of the theft offense without evidence the car was worth $950. (Gutierrez, supra, 20 Cal.App.5th at p. 854.)
"Although the record cannot support a guilty verdict for felony vehicle theft, the problem with [the defendant's] felony conviction is not the sufficiency of the evidence but jury instructions that failed to adequately distinguish among, and separately define the elements for, each of the ways in which section 10851 can be violated. [W]hen a violation of section 10851 is 'based on theft,' a defendant can be convicted of a felony only if the vehicle was worth more than $950. [Citation.] It is also necessary to prove the vehicle was taken with an intent to permanently deprive the owner of its possession - 'a taking with intent to steal the property.' [Citation.] The court's instructions in this case included neither of those essential elements for a felony theft conviction." (Gutierrez, supra, 20 Cal.App.5th at p. 856, italics added, fn. omitted.)
Gutierrez noted that in closing argument at the defendant's trial, the prosecutor relied on evidence that showed the defendant took and drove the vehicle without consent. Gutierrez further noted the jury was instructed on the elements of the offense with the pattern version of CALCRIM No. 1820, which did not state that for the taking aspect of the offense, the vehicle's value had to be $950 or more for the felony violation. (Gutierrez, supra, 20 Cal.App.5th at pp. 851-852.) The incomplete instruction allowed the jury to convict the defendant "of a felony violation of section 10851 for stealing the ... car, even though no value was proved - a legally incorrect theory - or for a nontheft taking or driving offense - a legally correct one." (Id. at p. 856.)
" 'When a trial court instructs a jury on two theories of guilt, one of which was legally correct and one legally incorrect, reversal is required unless there is a basis in the record to find that the verdict was based on a valid ground.' [Citations.] 'An instruction on an invalid theory may be found harmless when "other aspects of the verdict or the evidence leave no reasonable doubt that the jury made the findings necessary" under a legally valid theory.' [Citation.]" (Id. at p. 857.)
Gutierrez concluded that based on the instructional error, the defendant's felony conviction for violating section 10851 had to be reversed because the court could not determine whether the defendant was convicted "under a legally valid nontheft theory or a legally invalid theory of vehicle theft that did not include as an element the value of the stolen car." (Gutierrez, supra, 20 Cal.App.5th at p. 857.) Gutierrez remanded the matter to allow the People to either accept a reduction of the conviction to a misdemeanor or retry the offense as a felony with appropriate instructions. (Id. at p. 857.)
In People v. Lara, supra, 6 Cal.5th 1128, the court held the defendant was not prejudiced by the failure to instruct the jury that it had to find the value of the vehicle was more than $950. (Id. at p. 1137.) The jury was only instructed on an unlawful driving theory, and not on the theft aspect of section 10851. The verdict form also restricted the theory of guilt for driving a vehicle without permission. (People v. Lara, at p. 1137.)
"Although no evidence was presented of the vehicle's value, the evidence amply supported a theory of posttheft driving, which does not require proof of vehicle value in order to be treated as a felony. The evidence showed that defendant was apprehended driving the stolen car six or seven days after it was taken from its owner. Whether or not he was involved in the theft - a point the prosecutor conceded was not proved at trial - the evidence clearly establishes a substantial break between the theft and defendant's act of unlawful driving. [Citation.] Defendant did not have the owner's consent to drive the vehicle and the circumstances indicated he intended to keep the car from the owner for some period of time. The evidence was thus sufficient to show a felony violation of Vehicle Code section 10851." (Ibid.)
Lara acknowledged that while the instruction specified driving as the alleged illegal act, it did not refer to "posttheft driving," and the jury could have theoretically understood guilt to be proved if the defendant stole the vehicle by driving it away from where the owner parked it. Lara held the failure to instruct on the value of the car was harmless because the defendant was apprehended driving the vehicle six or seven days after it was stolen, "a time gap that indisputably qualifies as a ' "substantial break" ' between the theft and the driving. [Citation.]" (People v Lara, supra, 6 Cal.5th at p. 1138.)
C. The Information and Instruction
With this background in mind, we turn to defendant's assertion that his conviction in count 6 must be reversed because the jury was not instructed that an element of the offense was that the car was worth $950 or more.
In count 6, the information alleged defendant did willfully and unlawfully "drive or take" E.E.'s car "without the consent of and with intent to deprive" E.E. "of title to or possession of said vehicle" in violation of section 10851, subdivision (a).
The court instructed the jury with the following version of CALCRIM No. 1820 on the elements of a violation of section 10851, subdivision (a)
"[T]he defendant is charged in Count 6 with ... unlawfully taking or driving a vehicle, in violation of Vehicle Code Section 10851(a). To prove that the defendant is guilty of this crime, the People must prove that:
"1. The defendant took or drove someone else's vehicle without the owner's consent; [¶] AND
"2. When the defendant drove the vehicle, he intended to deprive the owner of possession or ownership of the vehicle for any period of time.
"Even if you conclude that the owner had allowed the defendant or someone else to take or drive the vehicle before, you may not conclude that the owner consented to the driving or taking on December 11, 2017, based on that previous consent alone.
"A taking requires that the vehicle be moved for any distance, no matter how small. [¶] A vehicle includes a passenger vehicle."
D. Closing Argument
In closing argument, the prosecutor argued how the evidence supported count 6. "[C]ount 6 charges the defendant with basically stealing her car. It's unlawful - he unlawfully took her vehicle. And to find the defendant guilty of Count 6, I have to prove that the defendant took or drove [E.E.'s] vehicle without her consent; and when he did so, he intended to deprive [E.E.] of her vehicle for any period of time. It can be 15 minutes, 30 minutes, an hour, two days, three days. Any period of time. And she did not get her vehicle back until two days later. He's guilty of Count 6 as well." (Italics added.)
E. Analysis
It is undisputed that the jury was not instructed that an element of the alleged violation of section 10851, subdivision (a) was that the vehicle had to be worth $950. Defendant argues that based on this instructional omission, his felony conviction must be reduced to a misdemeanor because the jury could have relied on a legally erroneous theory to convict him of count 6 based on the theft aspect of section 10851, without finding the car was worth $950.
As explained above, the court instructed the jury that defendant was charged in count 6 with "taking or driving," and the jury had to find whether defendant took or drove the vehicle with "intent to deprive" E.E. of "possession or ownership." The instruction did not require the jury to find the car was worth $950.
In her closing argument, the prosecutor asserted defendant was charged in count 6 with "basically stealing [E.E.'s] car. It's unlawful - he unlawfully took her vehicle. And to find the defendant guilty of Count 6, I have to prove that the defendant took or drove [E.E.'s] vehicle without her consent; and when he did so, he intended to deprive [E.E.] of her vehicle for any period of time." (Italics added.)
Based on the instructions and closing argument, the jury could have convicted defendant pursuant to the prosecutor's closing argument theory that defendant had been charged with "basically stealing [E.E.'s] car" which requires both the intent to permanently deprive and the finding that the car was worth $950.
As a result, we are compelled to reverse defendant's conviction in count 6 for a felony violation of section 10851, subdivision (a), and remand the matter "to allow the People either to accept a reduction of the conviction to a misdemeanor or to retry the offense as a felony with appropriate instructions. [Citations.]" (Gutierrez, supra 20 Cal.App.5th at p. 857.)
We note that this court reached a contrary disposition in In re D.N. (2018) 19 Cal.App.5th 898 (D.N.), where the juvenile court found true a petition that a minor committed felony "theft of a vehicle" in violation of section 10851. (D.N., at p. 900.) D.N. held the court's finding was improper under Proposition 47 because the prosecutor failed to prove the value of the vehicle exceeded $950. (D.N., at pp. 900, 901.) D.N. reduced the juvenile's felony adjudication to a misdemeanor violation of section 10851 and declined to remand the matter for another evidentiary hearing to prove the value of the stolen vehicle because such a remand would violate double jeopardy principles. (D.N., at pp. 900-904.)
We do not find the same double jeopardy situation exists in this case as in D.N. since that matter was heard by the juvenile court and not by a jury, so there was no instructional error that allowed a finding under either the taking or driving aspects of the statute.
Based on the procedural circumstances of this case, we reverse defendant's felony conviction based on the instructional error and vacate the sentence imposed. The matter is remanded for further proceedings, where the People may either accept a reduction of the charged offense in count 6 to a misdemeanor with the court to resentence defendant accordingly or retry defendant for a felony violation since the reversal resulted from an instructional error and does not implicate principles of double jeopardy.
DISPOSITION
Defendant's felony conviction in count 6 is reversed, and his sentence on that count is vacated. The matter is remanded for further proceedings on count 6 consistent with this opinion. On remand the People may either accept a reduction of the charged offense to a misdemeanor with the court to resentence defendant in accordance with that election or retry defendant for a felony violation of Vehicle Code section 10851.
In all other respects, the judgment is affirmed.
POOCHIGIAN, J. WE CONCUR: HILL, P.J. SMITH, J.