Opinion
G053724
10-12-2017
THE PEOPLE, Plaintiff and Respondent, v. ANGEL DE JESUS MALDONADO, Defendant and Appellant.
Rex Adam Williams, 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, Arlene A. Sevidal and Minh U. Le, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15NF3218) OPINION Appeal from a judgment of the Superior Court of Orange County, Richard J. Oberholzer, Judge. Affirmed. Rex Adam Williams, 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, Arlene A. Sevidal and Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
Before O'Leary, P.J., Fybel, J., and Ikola, J.
A jury convicted Angel De Jesus Maldonado of one count of receiving a stolen vehicle (Pen. Code, § 496d, subd. (a)) and he admitted a prior theft conviction (§ 666.5, subd. (a)). Maldonado argues his conviction for receiving a stolen vehicle should be reversed for instructional error and insufficiency of the evidence. Neither argument has merit. We affirm.
All further statutory references are to the Penal Code unless otherwise indicated. --------
FACTS
On the night of August 5, 2015, Xochitl Aguilar parked her 1996 Honda Accord in front of her home, with the car doors locked and the windows rolled up. The next morning, the car was gone. Aguilar had only two car keys and neither was missing. She had not given anyone permission to drive her car. She called the police and reported the car stolen.
Eight days later, Aguilar's car was found about a mile from her home. The front windows were lowered and the car bore no sign of forced entry or any damage to the ignition. A forensic analyst recovered two latent fingerprints, one from the interior driver's window and one from the exterior front passenger window. Another forensic expert examined the latent prints and determined the one from the inside driver's window matched Maldonado's left thumbprint.
About six weeks after the theft of Aguilar's car, an Anaheim police detective, Stephan Voss, was on patrol in a high crime neighborhood at about 1:30 in the morning when he began following an older model Honda Civic. Voss ran the license plate and discovered the car had been reported stolen. The driver of the car pulled into an apartment complex and parked. Voss apprehended the driver and a female passenger as they walked away from the car. The driver was Maldonado.
Voss checked the car while another officer searched Maldonado. The other officer found a key ring in Maldonado's pocket that contained three "shaved" car keys — keys that are filed down — along with two other keys. The shaved keys were marked "'Ford,'" "'For GM cars,'" and "'ILCO.'" In the car's ignition, Voss found a shaved key for an Acura. Maldonado was arrested and later pled guilty to unlawfully taking the Honda Civic. Pursuant to a stipulation, the fact of that guilty plea was presented to the jury in this case as proof of a common scheme or plan (Evid. Code, § 1101, subd. (b)).
At trial, Voss testified car thieves commonly use shaved keys to bypass a car's locking mechanism. Voss explained this method of stealing a car causes no damage to the car. Responding to a hypothetical about how a 1996 Honda Accord was stolen if it sustained no damage and the owner had the only set of keys, Voss opined the thief used "some kind of shaved key to enter the vehicle."
The prosecution charged Maldonado with two crimes related to Aguilar's stolen car: unlawfully driving or taking a vehicle (Veh. Code, § 10851, subd. (a)) in count 1, and receiving a stolen vehicle (§ 666.5, subd. (a)) in count 2. The jury acquitted Maldonado of count 1, but convicted him of count 2. The trial court sentenced Maldonado to three years, eight months in prison: three years for receiving a stolen vehicle in this case, and a subordinate eight-month term in another, unrelated case.
DISCUSSION
1. Instructional error
Maldonado argues the trial court failed to instruct the jury properly on the elements of the crime of receiving stolen property because it provided no definition of "stolen" or "theft." Essentially, Maldonado argues the jury could convict him of receiving stolen property only it if found Aguilar's car was taken by theft rather than for a joyride, and that finding depends entirely on the intent with which the car was taken: "For property to be 'stolen' or obtained by 'theft,' it must be taken with . . .'the intent to permanently deprive the owner of possession of the property.' [Citation.]" (People v. MacArthur (2006) 142 Cal.App.4th 275, 280 (MacArthur).)
Maldonado contends the trial court's failure to instruct the jury on the elements of theft prevented the jury from determining whether the car was stolen and whether Maldonado knew it was stolen. Maldonado asserts this instructional error requires reversal of the judgment. The argument lacks merit.
A. Duty to instruct
A trial court has a sua sponte duty to instruct the jury on the general principles of law relevant to the issues raised by the evidence, including all the elements of an offense for which the defendant is on trial. (People v. Rubalcava (2000) 23 Cal.4th 322, 333-334.) The failure to instruct on an element of an offense removes the element from the jury's consideration, thereby violating the defendant's Fifth Amendment right to due process and Sixth Amendment right to a jury trial, which together require the prosecution to prove every element of a crime beyond a reasonable doubt. (People v. Sengpadychith (2001) 26 Cal.4th 316, 324.) Consequently, a failure to instruct on an element of an offense "is federal constitutional error [Citation] that requires reversal of the conviction unless it can be shown 'beyond a reasonable doubt' that the error did not contribute to the jury's verdict [Citations]." (Id., at pp. 324-325.)
B. Claimed defect in these instructions
The trial court instructed the jury on the crime of receiving a stolen vehicle as follows: "To prove that the defendant is guilty of [receiving a stolen vehicle], the People must prove that: (1) the defendant concealed or withheld from its owner a vehicle that had been stolen, and (2) when the defendant concealed or withheld the vehicle, he knew that the vehicle had been stolen. A vehicle is stolen if it was obtained by any type of theft, or by burglary or robbery. To receive a stolen vehicle means to take possession and control of it. Mere presence near or access to the vehicle is not enough." (CALCRIM No. 1750, modified; Pen. Code, § 496d, subd. (a).)
Maldonado argues this instruction was inadequate because it did not define "stolen" and "theft" for the jury. He argues the trial court should have told the jury "[t]he Honda was stolen only if it was taken with the specific intent to permanently deprive Aguilar of it, or deprive her of it for such a time as to deprive her of its value. [Citations.]" Rather than instruct the jury on the specific intent required for theft, however, the trial court merely "defined the term 'stolen' as being 'obtained by any type of theft or by burglary or robbery.' But this merely begged the question. The jury essentially was told property is stolen if it is stolen. The instruction was entirely inadequate."
In support of his argument, Maldonado cites MacArthur, supra, 142 Cal.App.4th 275, in which our court reversed a conviction for receiving stolen property because the trial court had not instructed the jury on the definition of "stolen" and "theft." The case does not help Maldonado, however, because the facts of MacArthur are distinguishable from the facts here.
In MacArthur, the jury convicted the defendant of receiving stolen property based on evidence he pawned jewelry his girlfriend had taken from her mother. The opinion noted that "[w]hile the court correctly instructed the jury with the elements of receiving stolen property—including that the property be stolen or obtained by theft—it failed to provide any guidance to the jury for determining whether property had, in fact, been stolen or obtained by theft." (MacArthur, supra, 142 Cal.App.4th at p. 279.) The missing "guidance" concerned the specific intent required for theft: "For property to be 'stolen' or obtained by 'theft,' it must be taken with . . . 'the intent to permanently deprive the owner of possession of the property.' [Citation.]" (Id. at p. 280.) MacArthur held that because "some evidence suggested the property had been taken without the requisite intent . . . the court had a duty to instruct the jury sua sponte with a definition of "stolen" and "theft," including the intent requirement." (Id. at p. 277.)
The MacArthur opinion laid out the evidence that "called into question whether any relevant participant had the requisite intent." (MacArthur, supra, 142 Cal.App.4th at p. 280.) Most significantly, both the defendant and his girlfriend testified the girlfriend had taken and pawned her mother's jewelry at least 15 times, each time redeeming the jewelry and returning it to her mother. The opinion concluded that, "[g]iven this evidence, the court should have instructed the jury sua sponte with a definition of 'stolen' and 'theft.'" (Ibid.) The court's failure "to instruct the jury that theft requires a particular intent . . . [left] the jury with no basis for determining whether the jewelry had been stolen—an issue raised by the evidence." (Ibid.)
The crucial factual difference between MacArthur and the present case is that here the defendant points to no evidence supporting an inference the Honda was taken only temporarily, i.e., that the person who took the car intended to return it to Aguilar. The Honda was missing for eight days. It was found parked a mile away from Aguilar's home. From that circumstantial evidence, the jury could reasonably infer the person who took the car intended to deprive Aguilar of its possession permanently. Maldonado's contention the car was taken for a joyride is based on mere speculation.
In conclusion, the trial court did not err in omitting jury instructions defining "stolen" and "theft" because, unlike in MacArthur, supra, 142 Cal.App.4th 275, the evidence did not "suggest[] the property had been taken without the requisite intent" for theft. (Id. at p. 277.)
2. Sufficiency of the evidence
A conviction of receiving stolen property requires proof "(1) the property was stolen; (2) the defendant knew it was stolen; and (3) the defendant had possession of it. [Citations.]" (In re Anthony J. (2004) 117 Cal.App.4th 718, 728.) Maldonado challenges the sufficiency of the evidence as to two of these three elements. He contends there was insufficient evidence he possessed the car or that he knew it was stolen.
Although the case against Maldonado was entirely circumstantial, the evidence was sufficient to support the conviction.
A. Standard of review
We review the sufficiency of the evidence under the deferential substantial evidence standard of review. "'[W]e review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] The standard of review is the same in cases in which the People rely mainly on circumstantial evidence. [Citation.] "Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt. '"If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment."' [Citations.]" [Citation.]' [Citations.] The conviction shall stand 'unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]."' [Citation.]" (People v. Cravens (2012) 53 Cal.4th 500, 507-08.)
B. Evidence Maldonado possessed the stolen car
Case law establishes relatively broad parameters for proving "possession" of a stolen car. "The requisite possession of the stolen property may be either actual or constructive, and need not be exclusive. . . . [I]t is sufficient if the defendant acquires a measure of control or dominion over the stolen property. However, mere presence near the stolen property in and of itself is insufficient evidence of possession to sustain a conviction for receiving stolen property. [Citation.]" (In re Anthony J. (2004) 117 Cal.App.4th 718, 728.)
Maldonado argues there is almost no evidence to support the finding he possessed the stolen car. He sums up the evidence as follows: "[E]ight days after Aguilar reported her car missing, it was found parked on the street about a mile away in a high crime area with the front windows partially rolled down. The only evidence connecting appellant to the car was a thumb print matching his own . . . on the inside driver's window. The most one can conclude from this evidence is that at some unidentified point, either before or after the car was taken, appellant had access to the car. Any further conclusion he exercised dominion and control over it by touching the open window would be a product of sheer speculation." He cites People v. Zuduck (1969) 270 Cal.App.2d 334, 335-336 for the proposition that "[p]resence in the passenger seat is not enough to show possession of a stolen automobile."
The People, of course, see the evidence differently. Taking aim at Maldonado's assertion the thumb print inside the driver's window could have been put there "before . . . the car was taken," the People point out Aguilar testified she did not know Maldonado, had never seen him before, and "had rolled up all the windows and locked the doors the night before the car was stolen[.]" From those facts, the People assert "the jury could reasonably conclude that appellant had been inside the car and in the driver's seat sometime after it had been stolen." (Italics added.) As for dominion and control over the car, the People argue sitting in the driver's seat put Maldonado in control of the car because "[u]sing one of his shaved keys, appellant could have started the car."
In his reply brief, Maldonado challenges the contention he had a shaved key with him when he sat in the driver's seat of Aguilar's car. He asserts "there was no evidence [he] was in possession of shaved keys when he left the thumbprint on Aguilar's car." But Maldonado's argument ignores critical evidence from which the jury could have reasonably inferred he possessed a shaved key while sitting in the stolen car: The evidence showed Maldonado was an admitted car thief who used a shaved key to drive another stolen Honda six weeks later and had several more shaved keys on him when arrested for that later crime. That proof of a common scheme or plan (Evid. Code, § 1101, subd. (b)) was a sufficient basis from which the jury could have concluded Maldonado had a shaved key with him as he sat in Aguilar's Honda, giving him dominion or control of the car.
Maldonado points out a potentially troubling inconsistency in the verdict. Maldonado contends his acquittal on the first count, unlawfully driving or taking a vehicle, means "[t]he jury necessarily rejected the inference appellant took or drove the vehicle[.]" But the People aptly respond that "appellant need not have taken or driven the car to have exercised dominion and control over it." Maldonado's cited authority does not support his assertion the jury could not find he possessed the car absent proof he actually drove it. For example, People v. Land (1994) 30 Cal.App.4th 220 held that being "a passenger in a stolen vehicle will not necessarily preclude a conviction for receiving stolen property." (Id. at p. 228.) The People assert that here Maldonado "was not merely a passenger in the car. He was in the driver's seat with his key ring of several shaved keys. The jury could reasonably conclude that [Maldonado] had the ability to drive the car and thus exercised dominion and control over it, whether or not he actually drove it."
Reviewing the whole record in the light most favorable to the judgment, as we must, we find substantial evidence supports the finding Maldonado possessed the stolen car.
C. Evidence Maldonado knew the car was stolen
Maldonado argues the evidence does not support the finding he knew the car was stolen. "[T]he car had no signs of forced entry or ignition . . . . Appellant would have needed some other indication the car was taken from its rightful owner. . . . Only speculation could lead to a conclusion appellant knew the car was stolen." Not so.
Maldonado's argument ignores evidence which, taken together, supports the jury's finding Maldonado knew, when he took possession of Aguilar's Honda, the car had been stolen. Testifying as an expert on car thefts, Officer Voss opined the lack of damage to Aguilar's Honda indicated it had been stolen with a shaved key. Voss further testified that six weeks after Aguilar's Honda was stolen, Voss arrested Maldonado for driving a stolen Honda Civic. When arrested, Maldonado had three shaved keys in his pocket and Voss found another shaved key in the Honda Civic's ignition. Finally, the jury was told Maldonado had pled guilty to unlawfully taking the Honda Civic. From this evidence, the jury could have reasonably concluded Maldonado, an admitted car thief whose modus operandi was using shaved keys to drive stolen cars, knew Aguilar's car was stolen when he sat in the driver's seat.
Again, we conclude the evidence is sufficient. The applicable standard of review makes our duty clear. "The conviction shall stand 'unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]."' [Citation.]" (People v. Cravens, supra, 53 Cal.4th at p. 508.)
DISPOSITION
The judgment is affirmed.