Opinion
F085340
04-12-2024
THE PEOPLE, Plaintiff and Respondent, v. JAVIER TOVAR, Defendant and Appellant.
Ross Thomas, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and David A. Lowe, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. BF190361A, Gregory A. Pulskamp, Judge.
Ross Thomas, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and David A. Lowe, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT *
A jury found defendant Javier Tovar guilty of possession of a firearm by a felon, possession of ammunition by a felon, and unlawfully driving a vehicle without the owner's consent. Defendant was sentenced to seven years four months in prison.
Defendant raises one issue on appeal. He claims that there was insufficient evidence to support his conviction of driving a vehicle without the owner's consent under Vehicle Code section 10851, subdivision (a), requiring reversal. The People disagree and contend that substantial evidence supports the conviction. We affirm.
All further statutory references are to the Vehicle Code unless otherwise specified.
PROCEDURAL BACKGROUND
On September 16, 2022, the Kern County District Attorney filed an amended information charging defendant with possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1); count 1), possession of ammunition by a felon (Pen. Code, § 30305, subd. (a)(1); count 2), and unlawfully driving a vehicle without the owner's consent (§ 10851, subd. (a); count 3).
All further dates are in the year 2022 unless otherwise noted.
As to each count, the amended information alleged that defendant had suffered a prior "strike" conviction within the meaning of the "Three Strikes" law (Pen. Code, §§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e)). It was further alleged, as to each count, that defendant had prior convictions as an adult that were numerous or of increasing seriousness (Cal. Rules of Court, rule 4.421(b)(2)); defendant had served a prior prison term (rule 4.421(b)(3)); defendant was on probation or parole when the crime was committed (rule 4.421(b)(4)); and defendant's prior performance while on probation or parole was unsatisfactory (rule 4.421(b)(5)). As to count 3, it was also alleged that defendant suffered a prior vehicle theft conviction (§ 10851, subd. (a); Pen. Code, § 666.5, subd. (a)) and that the crime involved an attempted or actual taking or damage of great monetary value (rule 4.421(a)(9)).
All further rule references are to the California Rules of Court.
The special allegation in count 3, that the crime involved an attempted or actual taking or damage of great monetary value, was dismissed.
A jury found defendant guilty as charged on all three counts. In a bifurcated proceeding, the trial court found true the special allegations associated with each count. The court also found true the prior strike allegation and the prior vehicle theft conviction. Defendant stipulated that he previously was convicted of a felony. The trial court sentenced defendant to seven years four months as follows: on count 3, six years (the middle term, doubled); on count 1, 16 months (one-third the middle term, doubled), to run consecutively to the term on count 3; and on count 2, four years (the middle term, doubled), stayed pursuant to section 654.
Defendant stipulated to a bifurcated court trial on the special allegations and prior convictions.
FACTUAL BACKGROUND
On the night of June 3, F.P. drove a 2003 pickup truck (the truck) and parked it at a store. F.P. had been the exclusive driver of the truck for the past five months, although the truck was owned and registered to his sister, A.P. No one else drove the truck or had lawful access to it other than F.P., A.P., or F.P.'s father. Neither F.P. nor A.P. had given anyone permission to drive the truck. While inside the store, F.P. heard the truck turn on. Upon hearing this, he ran outside and saw the truck back up and drive away. F.P. was unable to see who took the truck. He called the police and reported it stolen.
On the night of June 4, a police officer saw the truck traveling southbound at an intersection in central Bakersfield. A records check revealed the truck was stolen. The officer conducted a traffic enforcement stop on the truck. The truck pulled over. Defendant was driving the truck and was the only person inside.
When the officer approached the truck, he saw a black, loaded firearm on the front passenger floorboard and a box of 50 rounds of live ammunition. Defendant told the officer that it was not his firearm. However, no firearms had ever been in the truck to F.P.'s knowledge. When the police officer asked where defendant got the truck, he told the officer that he purchased it about an hour and a half prior, at approximately 10:00 p.m., on the night of June 4, for $200. Defendant said that he believed the sale was legitimate because the person he bought the truck from was a friend of his cousin. When questioned about the amount paid, defendant told the officer that there were some body parts wrong with the truck. Defendant did not provide the officer with the contact information for the seller of the truck, or where the officer could find him.
There was no receipt or documentation showing that defendant had purchased the truck for $200 or that defendant owned the truck. Inspection of the truck after it was stolen revealed F.P.'s phone charger in the front cab and F.P.'s son's car seat in the back of the truck, both where F.P. left them at the time the truck was stolen the day before. There was also a backpack inside the truck that did not belong to F.P. The registration documents showing A.P. as the registered owner, that were inside the truck's cabinet when it was stolen, were missing when it was returned to F.P.
Prior to being stolen, the truck was functional and dependable. After it was stolen, there was damage to the ignition column and the catalytic converter was missing. F.P. could not start the truck with its original key and had to get someone at the towing company to start it for him. F.P. paid $600 to a mechanic for the repair of the catalytic converter and $100 for the repair of the ignition.
DISCUSSION
I. Substantial Evidence for Violation of Section 10851, Subdivision (a)
Defendant contends there was not substantial evidence to prove that he unlawfully drove the truck, or that he had the requisite intent to deprive the owner of possession for a conviction under section 10851, subdivision (a). Defendant argues that the evidence shows his good faith belief that the purchase of the truck was legitimate.
The People respond that substantial evidence supports the jury's verdict that defendant drove the truck without the owner's consent and with an intent to deprive the owner of possession.
We agree with the People.
A. Additional Background
The trial court instructed the jury with CALCRIM No. 1820: "To prove that the defendant is guilty of this crime, the People must prove that:
"1. The defendant 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."
The jury was further instructed with CALCRIM No. 3406, informing it that if defendant's conduct would have been lawful under the facts as he believed them to be, he did not commit the crime. For example, if the jury found that defendant believed that he was in lawful possession of the vehicle, he did not have the specific intent or mental state required to commit the crime alleged.
B. Analysis
The test for evaluating a sufficiency of evidence claim is deferential:" 'whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt.'" (People v. Flores (2020) 9 Cal.5th 371, 411.) When reviewing a challenge to the sufficiency of the evidence, we must view the evidence in the light most favorable to the People and ask whether" '" 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" '" (People v. Navarro (2021) 12 Cal.5th 285, 302.) Since" 'the sufficiency of the evidence is ultimately a legal question, we must examine the record independently for" 'substantial evidence-that is, evidence which is reasonable, credible, and of solid value'" that would support a finding beyond a reasonable doubt.'" (Ibid.) "In doing so, we 'view the evidence in the light most favorable to the jury verdict and presume the existence of every fact that the jury could reasonably have deduced from that evidence.'" (Ibid.)" 'We must also "accept logical inferences that the jury might have drawn from the circumstantial evidence." '" (Navarro, at p. 302; Flores, at p. 411.)" '" 'We resolve neither credibility issues nor evidentiary conflicts.'" '" (People v. Chubbuck (2019) 43 Cal.App.5th 1, 9 (Chubbuck).)"' "A reversal for insufficient evidence is 'unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support"' the jury's verdict." '" (Ibid.)
" 'The elements necessary to establish a violation of section 10851 ... are the defendant's driving or taking of a vehicle belonging to another person, without the owner's consent, and with specific intent to permanently or temporarily deprive the owner of title or possession.'" (People v. Green (1995) 34 Cal.App.4th 165, 180 (Green).)
Turning to the first element of section 10851, we must determine whether there was substantial evidence to prove that defendant drove or took someone else's vehicle without the owner's consent. The truck in this case was owned and registered to A.P. On June 3, F.P. had been the only driver on that night and for the five months prior. Defendant did not have permission to drive the truck. Defendant did not have lawful access to the truck. No one had access to it other than F.P., A.P., or F.P.'s father. Defendant was found driving and in sole custody of the truck the night after it was reported stolen. There were no passengers, and no one else was inside the truck when defendant was stopped. Given these circumstances, we conclude that there was substantial evidence to show that defendant drove the truck without the owner's permission.
Turning to the next element of section 10851, we must determine whether there was substantial evidence to prove that when the defendant drove the vehicle, he intended to deprive the owner of possession or ownership of the vehicle for any period of time." 'Specific intent to deprive the owner of possession of his [vehicle] may be inferred from all the facts and circumstances of the ... case.'" (Green, supra, 34 Cal.App.4th at p. 181.) "[C]ircumstantial evidence is as sufficient as direct evidence to support a conviction." (People v. Bloom (1989) 48 Cal.3d 1194, 1208.) The jury is entitled to "infer [the] defendant's motives based upon the totality of the evidence presented." (Chubbuck, supra, 43 Cal.App.5th at p. 11.)
Defendant was driving and in possession of the truck the night after it was reported stolen. (Green, supra, 34 Cal.App.4th at p. 181 [driving of a vehicle within four days of it being stolen was evidence used to show specific intent to deprive the owner either temporarily or permanently of possession of the car].) His story regarding the time, location, and purchase price of the truck was suspect. Defendant told the officer that since he purchased the vehicle through his cousin, he believed the sale was legitimate, however, he did not provide the contact information for his cousin or the seller. Defendant also failed to tell the officer of the place where the seller may be found when asked, even though he alleged to have purchased the truck only about an hour and a half before he was stopped. Defendant provided no documentation supporting the transaction. There was no receipt regarding the sale of the truck, or evidence to show that he bought it. (See Chubbuck, supra, 43 Cal.App.5th at. p. 11 [possession of a recently taken vehicle by the defendant with slight corroboration through statements or conduct tending to show guilt is sufficient to sustain a conviction under section 10851].)
Further, items belonging to F.P., such as his phone charger and his son's car seat, that were in the truck at the time it was stolen, were still inside the truck when defendant was found driving it, which suggests that defendant had knowledge that he was in wrongful possession of the truck. Specific intent here was based upon the totality of the evidence presented, including defendant's possession of the recently stolen truck, the testimony defendant provided regarding his possession, the items found inside the truck, and defendant's failure to support his statements with any documentation or contact information.
Moreover, when the truck was recovered, it was clear that the ignition had been tampered with to allow the vehicle to be started without the key. Defendant cites People v. Barrick (1982) 33 Cal.3d 115, 135, for the authority that evidence relating to a tampered ignition, standing alone, merely reflects the method by which the vehicle was taken rather than the specific intent to deprive the owner of possession of the car. (See also Green, supra, 34 Cal.App.4th at p. 181.) However, evidence of a tampered ignition, when coupled with other evidence, may support a finding of intent to deprive the owner of possession. (Green, at p. 181; see People v. Windham (1987) 194 Cal.App.3d 1580, 1590-1591.)
Superseded by statute unrelated to the authority used in this case.
The jury could reasonably have relied on the record as a whole in finding defendant guilty, not just the evidence of the tampered ignition. In addition to the tampered ignition, the record contained other indicia that defendant knew he was driving the vehicle without the owner's consent and intended to deprive the owner of possession: the truck's catalytic converter was also gone, F.P.'s car seat and charger were still inside the truck, defendant was in possession of the truck the night after it was reported stolen, and the circumstances involving the purchase of the truck, including price, time, and location were implausible and unable to be validated by any documentation or contact information. Taken together, that evidence was sufficient to support a conviction under section 10851. (See, e.g., People v. Windham, supra, 194 Cal.App.3d at pp. 1590-1591 [in addition to the tampered ignition, there was also other evidence, such as a broken windshield, a missing trunk lock, switched license plate, and defendant's possession of the vehicle within hours of when it was reported stolen, which supported a conviction of section 10851 beyond a reasonable doubt].)
Defendant argues there is evidence that shows he lawfully purchased the truck from his cousin's friend, and points to several facts that, he asserts, substantiates his claim. Defendant sets forth the following in support of his argument: there were no indicators of a shaved key, master key, "auto jiggler," or screwdriver in defendant's possession at the time of his arrest; the truck's license plates had not been switched; the truck's identification number had not been tampered; defendant complied with the traffic stop and made no effort to avoid police contact when the police officers made a traffic enforcement stop; police officers did not obtain a search warrant to search defendant's phone for text messages, calls, or contacts that may have been related to the sale of the truck; and police officers did not go to the gas station where the truck was allegedly purchased and request video footage of the night of June 4.
We agree with defendant that these factors might have been favorable to his case if the jury found them to be true. However, the jury considered the evidence, was presented with defendant's argument set forth above, and rejected it. Moreover, defendant focuses on the police officer's alleged "inadequate" investigation, which he argues furthers his claim that the purchase of the truck was legitimate. His argument misses the mark. Emphasizing what law enforcement failed to do does not determine whether the evidence before us is substantial in establishing the two elements of section 10851 beyond a reasonable doubt. Our Supreme Court has offered that the reviewing court's task in evaluating the sufficiency of the evidence is not to weigh the evidence to determine the most likely interpretation, but rather, view the evidence and the reasonable inferences therefrom in the light most favorable to the jury's determination, taking at face value evidence that is not inherently improbable, and presuming the existence of every fact reasonably deduced from that evidence. (People v. Navarro, supra, 12 Cal.5th at pp. 306-307.) If the circumstances reasonably justify the conviction, the opinion of the reviewing court that those circumstances might also reasonably be reconciled with the innocence of the defendant will not warrant interference with the determination. (Green, supra, 34 Cal.App.4th at p. 180.) For the reasons discussed above, we conclude that the jury's judgment here was rational and supported by substantial evidence.
The jury was instructed with CALCRIM No. 3406, that if it found defendant believed he was in lawful possession of the vehicle, he did not have the specific intent required under section 10851. In finding defendant guilty, the jury rejected the argument that defendant lawfully purchased the truck despite the following facts: lack of shaved key, master key, "auto jiggler", or screwdriver; license plate and identification number in original condition; defendant's compliance with the traffic stop; and the police officer's investigation.
DISPOSITION
The judgment is affirmed. --------- Notes: * Before Poochigian, Acting P. J., Pena, J. and DeSantos, J.