Opinion
E066612
02-09-2018
THE PEOPLE, Plaintiff and Respondent, v. GUY SILLS, Defendant and Appellant.
Richard Power, 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, A. Natasha Cortina, Meagan J. Beale, and Kristen Kinnaird Chenelia, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FVI1502954) OPINION APPEAL from the Superior Court of San Bernardino County. Victor R. Stull, Judge. Affirmed. Richard Power, 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, A. Natasha Cortina, Meagan J. Beale, and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
All statutory references are to the Penal Code unless stated otherwise. --------
Defendant Guy Sills was implicated in the burglary of a car dealership and in removing two vehicles from the car lot. Ultimately, a jury convicted defendant of counts 1 and 3 for violations of Vehicle Code section 10851, subdivision (a), driving or taking a vehicle without consent. Defendant admitted having four prior prison convictions. (§ 667.5, subd. (b)). The trial court dismissed counts 2 and 4 (receiving a stolen vehicle, § 496d, subd. (a)) and three additional prior conviction allegations. The trial court sentenced defendant to nine years in prison: four years on count 1, one year on count 3, and one year for each of the four prior prison convictions.
On appeal, defendant argues the court erred when it allowed an amendment of the information and gave the jury instructions on the theory of taking, rather than driving, a vehicle. Defendant additionally contends that the prosecutor misstated the law in closing argument and the court should not have imposed consecutive sentences. We hold there was no prejudicial error and the consecutive sentencing was proper.
II
STATEMENT OF FACTS
On December 3, 2015, two sheriff's deputies received a tip about potential stolen cars which led them to investigate the residence of Talat Alsaddi. The deputies observed two cars in the driveway—a PT Cruiser parked in front of an Infiniti, which was covered with a tarp. Defendant was in the driver's seat of the PT cruiser. Alsaddi was in the driver's seat of the Infiniti. The deputies arrested defendant and found he was in possession of multiple sets of car keys and a screwdriver.
Both vehicles were property of the Saleem car dealership. The PT Cruiser was worth about $3,739 and the Infiniti was worth about $8,410. The door of the car dealership's office had been forced open and the office had been ransacked.
Alsaddi testified he knew defendant as an acquaintance of his neighbors. The night before, Alsaddi had seen on his video camera feed two cars parked out of view from the street. Next, Alsaddi watched as defendant moved the Infiniti to the driveway near Alsaddi's home and covered it with a tarp. When Alsaddi asked defendant what he was doing, defendant left the premises and returned a few minutes later driving the PT Cruiser. Alsaddi knew something was amiss because the cars had dealership price tags on their windshields and defendant requested a sharp blade to remove the stickers.
Alsaddi overheard defendant on his cell phone trying to sell the cars' tire rims. Alsaddi was angry and wanted the cars off his property so he got into the Infiniti's driver seat intending to move the car.
Defendant testified that he rode his bicycle to Alsaddi's house to use drugs. Alsaddi asked him to move the PT Cruiser. Defendant was in the car when the police arrived and searched him. Defendant denied driving the cars into the driveway, covering the Infiniti with a tarp, or having car keys in his pocket. He admitted to having numerous prior theft convictions and to stealing cars one at a time and transporting them to another city.
III
DISCUSSION
Defendant summarizes his arguments on appeal as follows: "The People charged and presented a case based on the taking portion of Vehicle Code [section] 10851, then got the charges amended during trial after the key witness had been excused, then argued a 'drives' theory to the jury, using a 'taking' definition. The overall presentation was confused, jumbled, misleading, and denied [defendant] major constitutional rights includ[ing] right to notice, right to confront, right to proper instructions, and right to be proven guilty beyond a reasonable doubt based on legally sufficient evidence." In other words, defendant argues there was confusion about whether defendant was charged with and convicted of taking or driving.
As noted, defendant claims the trial court abused its discretion when it amended the information to include the act of driving a stolen vehicle because he was not provided constitutionally adequate notice of that charge. He argues the amendment was prejudicial because he did not have the opportunity to cross-examine Alsaddi on the issue of driving instead of taking. However, defendant was provided with notice at the preliminary hearing that there was evidence he was driving the vehicles. Also, the prosecutor expressly stated that he was pursuing a driving theory, and this was understood by the trial court. We conclude the amendment did not deprive defendant of due process.
A. Vehicle Code Section 10851, Subdivision (a)
The crimes of unlawful driving or taking of a vehicle are different: "Under section 10851, the act of taking has been construed to mean the act of appropriating the automobile, distinct from the act of driving the car." (People v. Frye (1994) 28 Cal.App.4th 1080, 1088.) "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. . . . 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." (People v. Garza (2005) 35 Cal.4th 866, 871.) Vehicle Code section 10851, subdivision (a), can be violated "'either by taking a vehicle with the intent to steal it or by driving it with the intent only to temporarily deprive its owner of possession (i.e., joyriding).'" (Garza, at p. 876, quoting People v. Allen (1999) 21 Cal.4th 846, 851.)
In People v. Jaramillo (1976) 16 Cal.3d 752, the court held that since a thief cannot be convicted of receiving the property he took, the defendant could not be convicted of both receiving a stolen vehicle and taking the same vehicle in violation of Vehicle Code section 10851. (Jaramillo, at pp. 758-759.) However, a defendant could be convicted of both receiving stolen property and a violation of Vehicle Code section 10851, subdivision (a), provided the defendant only drove the vehicle. (Jaramillo, at p. 758.) "The 'taking' within section 10851, then, is limited to the act of removing the vehicle from the owner's possession." (People v. Frye, supra, 28 Cal.App.4th at p. 1088.)
B. Information and Amendment
Defendant was charged in the original information in counts 1 and 3 with "the crime of DRIVING OR TAKING A VEHICLE WITHOUT CONSENT, in violation of VEHICLE CODE SECTION 10851(a), a felony, [as] committed by Guy Sills, who did take a vehicle . . . without the consent of the owner, Saleem Zakee, and with the intent to deprive the owner of title and/or possession of the vehicle."
During a conference on jury instructions conducted after the case-in-chief, defense counsel stated that he understood the People's theory to be that defendant broke into the dealership office and took the key to the PT Cruiser. The prosecution clarified that its theory was that defendant was driving the vehicles after the break-in and not that he broke into the office and stole the car key—which was the reason earlier burglary charges were dismissed. The purpose of the burglary evidence was only to demonstrate the cars were stolen.
The prosecutor asserted that taking the vehicle involved moving the car for any distance. The trial court responded that the statute could be violated either by the theft of the vehicle or merely by driving it. The prosecutor maintained that defendant drove the cars without consent. However, because the original information did not allege defendant drove the vehicles, the prosecutor made a motion to amend the information to conform to proof and to allege that defendant was either taking or driving the vehicles. The defense objected on the grounds witnesses could not be cross-examined about whether defendant drove the vehicles. The court granted the motion.
The trial court instructed the jury based on CALCRIM No. 1820:
"The defendant is charged in Counts One and Three 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 did so, he intended to deprive the owner of possession or ownership of the vehicle for any period of time.
"A taking requires that the vehicle be moved for any distance, no matter how small.
"If you find the defendant guilty of unlawfully taking or driving a vehicle, you must then decide whether the People have proved the additional allegation that the value of the vehicle was $951 or more.
"The People have the burden of proving this allegation beyond a reasonable doubt. If the People have not met this burden, you must find that the allegation has not been proved."
C. Abuse of Discretion
The accusatory pleading provides notice to the defendant of the charges he can anticipate being proved at trial. (People v. Anderson (2006) 141 Cal.App.4th 430, 445.) A court may allow amendment of an accusatory pleading at any time, even at the close of trial, if there is no prejudice to the defendant. (People v. Goolsby (2015) 62 Cal.4th 360, 368; People v. Graff (2009) 170 Cal.App.4th 345, 361.) However, the amendment cannot change the charged offense or charge an offense not shown by the evidence at the preliminary hearing. (§ 1009; People v. Rogers (2016) 245 Cal.App.4th 1353, 1360; People v. Jones (1990) 51 Cal.3d 294, 317.) The trial court's decision to allow an amendment, "including the addition of counts, is reviewed for abuse of discretion." (People v. Arevalo-Iraheta (2011) 193 Cal.App.4th 1574, 1578.)
Here, there was no violation of constitutional due process or abuse of discretion. At the preliminary hearing, there was evidence that defendant was driving the stolen cars, as argued by the prosecutor. The deputy testified a witness told him defendant was moving cars and covering them with a tarp. The deputy saw defendant entering the PT Cruiser, with the Infiniti parked in front. Both cars had been stolen the night before from the Saleem dealership. Although the deputy did not personally see defendant move the car, Alsaddi told him that defendant had driven the cars to the house. The car keys were in the ignitions and defendant had additional sets of keys belonging to missing cars in his pocket. The prosecutor argued there was evidence that defendant had taken the keys and moved the cars. The trial court agreed and held defendant to answer to all charges in the complaint.
The prosecutor also made several statements showing that he intended to pursue convictions based on defendant driving the vehicles: "I expect the evidence to show is that he was the one driving the PT Cruiser and the Infiniti into this driveway on this morning and that's what he's charged with." The trial court agreed: "what's charged is not theft, but possession of stolen property." It was not an abuse of discretion for the trial court to allow an amendment to charge that defendant drove the vehicles.
The allegation of driving was also necessarily included in the original allegation of taking the vehicles. Defendant's possession of the stolen keys and his proximity to the stolen cars created a strong inference of a taking: "Possession of recently stolen property is so incriminating that to warrant conviction there need only be, in addition to possession, slight corroboration in the form of statements or conduct of the defendant tending to show his guilt." (See People v. McFarland (1962) 58 Cal.2d 748, 754.)
Even without the testimony of Alsaddi, it was still reasonable to infer in support of a taking that defendant drove the vehicles off the lot. It is uncontested that the prosecution's case-in-chief involved defendant continuing to drive the vehicles after they were stolen. Although Alsaddi said the vehicles were driven by defendant from one location to another, the initial taking had been completed and defendant was still driving the cars. Defendant was given adequate notice that he was accused of driving the vehicles and so the amendment was proper.
Alsaddi's entire testimony focused on how defendant drove the cars up the driveway. Defense counsel thoroughly cross-examined Alsaddi on his version of events. Further cross-examination would not have aided defendant's defense although defense counsel could have requested a continuance or recalled Alsaddi as a witness. (See e.g. People v. Goolsby, supra, 62 Cal.4th at pp. 367-368.) The timing of the amendment was not prejudicial to defendant.
The charge that defendant was driving the vehicles was shown by evidence taken at the preliminary hearing (§ 1009) and was related to and factually included in a taking theory (§ 739). Defendant had adequate notice and opportunity to defend against the charge. The trial court did not abuse its discretion.
D. Jury Instruction on Driving and Taking a Vehicle Without Consent
Defendant also claims the jury was incorrectly instructed on the theory of taking a vehicle without the owner's consent because the prosecutor did not pursue the taking theory and because he stated in rebuttal that he did not have evidence and did not need to prove defendant took the cars from the lot. However, we conclude there was sufficient evidence defendant took the vehicles in addition to driving them.
The reviewing court determines whether a reasonable trier of fact could have found that the prosecution proved defendant's guilt beyond a reasonable doubt. The evidence must be reasonable, credible and of solid value. The entire record is viewed in the light most favorable to the jury's verdict and presumes in support of that verdict the existence of every fact that could be reasonably deduced from the evidence. (People v. Smith (2005) 37 Cal.4th 733, 738-739.) If sufficient evidence supports a jury finding that the defendant committed a crime under a particular theory, sufficient evidence also supports instructing the jury regarding that theory. (People v. Cole (2004) 33 Cal.4th 1158, 1206.)
Saleem Automotive had been burglarized and the keys to the PT Cruiser were removed from the office. Within a matter of hours, the PT Cruiser and Infiniti were driven off the lot and parked a few blocks away. That morning, defendant was seen moving the Infiniti and covering it with a tarp. While defendant was moving the PT Cruiser, deputies stopped him while he was sitting in the driver's seat of the PT Cruiser with a stolen key in the ignition. Defendant possessed the keys to numerous other vehicles belonging to the car dealership. Defendant's explanations that he was trying to help Alsaddi and did not know the cars were stolen were wholly implausible. Under the circumstances—where defendant was in possession of recently stolen vehicles and numerous sets of keys and was apprehended in the act of concealing the vehicles—the evidence supported a conclusion that defendant took the vehicles from the dealership.
The foregoing evidence also supported a verdict on the theory that defendant drove the stolen vehicles. Two witnesses testified that they saw defendant drive the stolen cars up the driveway. Because there was evidence supporting both theories of taking and driving, CALCRIM No. 1820 was correctly given by the trial court. There was no instructional error on the charges of driving or taking a vehicle.
E. Prosecutor's Closing Argument
Next defendant contends the prosecutor argued wrongly that the jury could have found defendant took the vehicle solely based on him driving it later. Defendant's failure to object causes a forfeiture of this issue. In any event, there was no prejudice. If the jury found defendant took the vehicle based solely on driving it later, it necessarily supports a conviction under the driving theory.
In closing argument, the prosecutor explained that counts 1 and 3 were for defendant's conduct of driving the vehicles. Defense counsel countered that there was no evidence beyond a reasonable doubt that defendant was driving the vehicles or took the vehicles. The prosecutor reiterated that the case was about defendant driving the cars up the driveway, starting when defendant was driving the cars and ending when he put the tarp over the Infiniti, thus proving that defendant took or drove someone else's vehicle. The prosecutor clarified that "a taking requires that the vehicle be moved for any distance, no matter how far. . . . All we have to show is that the defendant moved these two cars for any distance, no matter how small regarding the taking. And that, ladies and gentlemen, has been shown by eyewitness testimony."
Because defendant did not object to the prosecutor's statements and preserve this claim on appeal, the argument has been forfeited. (People v. Morales (2001) 25 Cal.4th 34, 43-44.) In any event, there was no misconduct or prejudice even if the prosecutor's argument amounted to a misstatement of the law. (See People v. Lucas (1997) 55 Cal.App.4th 721, 737.) The reviewing court does not "'lightly infer'" that the prosecutor "'intended [his remarks] to have their most damaging meaning, or that the jury would draw that meaning from the other, less damaging interpretations available.'" (People v. Young (2005) 34 Cal.4th 1149, 1192.) In this case, the prosecutor did not rely on an uncharged theory of guilt. He merely misapplied the element of taking to the theory of driving. The prosecutor still maintained that defendant drove the car and this was the factual basis of the crime. If the jury did rely on the prosecutor's misstatement and equated taking with driving, then it necessarily found defendant drove the car and still violated the statute.
A misstatement of the law is not prejudicial when the jury is correctly instructed on the applicable principles. (People v. Mayfield (1993) 5 Cal.4th 142, 179.) Jurors are warned that statements by counsel are merely argument, and "'prosecutorial commentary should not be given undue weight in analyzing how a reasonable jury understood . . . instructions. . . . [A]rgument should "not be judged as having the same force as an instruction from the court."'" (People v. Cortez (2016) 63 Cal.4th 101, 131-132.) The trial court correctly instructed the jury on the elements of Vehicle Code section 10851 and the jury convicted defendant of that offense.
F. Section 654
Section 654 provides in relevant part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." "The purpose of section 654 is to ensure that a defendant's punishment is commensurate with his culpability and that he is not punished more than once for what is essentially one criminal act. [Citation.]" (People v. Kwok (1998) 63 Cal.App.4th 1236, 1252.) "Although section 654 literally applies only where multiple statutory violations arise out of a single 'act or omission,' it has also long been applied in cases where a 'course of conduct' violates several statutes. (Neal v. State of California (1960) 55 Cal.2d 11, 19 . . . .)" (Ibid.; see People v. Miller (1977) 18 Cal.3d 873, 885.)
"'Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.'" (People v. Kwok, supra, 63 Cal.App.4th at p. 1253; quoting Neal v. State of California, supra, 55 Cal.2d at p. 19.) "Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination." (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.) "Its findings will not be reversed on appeal if there is any substantial evidence to support them." (Ibid.)
In People v. Bowman (1989) 210 Cal.App.3d 443, a similar case, the defendant broke into a car dealership office and stole supplies and broke into various motor homes and vehicles. He received eight consecutive sentences for the second degree burglary convictions. (Id. at pp. 445-446.) Bowman held the consecutive sentences were not prohibited by section 654 because the defendant "entertained multiple criminal objectives." (Id. at p. 449.) He did not commit a single break-in "but rather committed multiple break-ins, each with a separate felonious intent. While the felonious intent in each instance was the same, this does not make the various violations incidental to each other or to one primary criminal objective. Thus, even though the violations were part of an otherwise indivisible course of conduct in that they occurred during one night, it was within the trial court's discretion to impose consecutive sentences." (Id. at p. 448.)
Here, defendant separately entered two vehicles and moved each vehicle to conceal it. Although the vehicles were stolen from the same lot on the same night, parked in the same location for concealment, and then driven by defendant for further concealment, defendant's entry into each and driving of each was separate and divisible conduct. He could not have driven the vehicles at the same time so they were divisible in time. Defendant had one intent to enter and drive the Infiniti and a separate intent to enter and drive the PT Cruiser. Thus, the offenses were not incidental to each other. The court did not err in imposing consecutive sentences on both counts. Consecutive sentences are necessary to ensure defendant's punishment is commensurate with his culpability.
IV
DISPOSITION
Based on our review of the record, we affirm the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: RAMIREZ
P. J. SLOUGH
J.