Opinion
A144608
12-06-2017
THE PEOPLE, Plaintiff and Respondent, v. ERIC M. AZEVEDO, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 51419449)
Eric M. Azevedo appeals his conviction by jury trial of receiving a stolen motor vehicle (Pen. Code, § 496d; count 1), receiving stolen property (Pen. Code, § 496, subd. (a); count 2), and unlawfully obtaining personal identifying information (Pen. Code, § 530.5, subd. (c)(1); count 3).
The jury also found the stolen motor vehicle had a value of over $950, making count 1 a felony. (Counts 2 and 3 were misdemeanors.) In a bifurcated proceeding, the trial court found Azevedo had served a prior prison term (§ 667.5, subd. (b)) and had four prior felony convictions for unlawful driving or taking of a vehicle (§ 666.5). The trial court sentenced Azevedo to five years in county jail.
He contends the trial court erred in admitting evidence of his prior car thefts under Evidence Code 1101, subdivision (b). He also contends the trial court committed two errors in instructing the jury, first, by giving an instruction on aiding and abetting and, second, by failing to instruct the jury on the defense of mistake of fact.
We conclude there was no prejudicial error and affirm.
BACKGROUND
Prosecution's Case
On the morning of August 5, 2014, Eric Walterhouse (Walterhouse) discovered his Ford truck was missing from its parking spot in an apartment complex in San Ramon. He had left his AAA card and his expired driver's license in the truck, which was registered to his father Richard Walterhouse. Walterhouse reported the truck stolen that morning.
The next day, Walterhouse's truck was found in Martinez pulled over to the side of the road with its right turn signal on. Martinez police officer Adam Winslett pulled up behind the truck and walked toward it. He saw Azevedo get out of the passenger's side of the truck and walk quickly towards him. Azevedo, whom Winslett recognized from prior contacts, appeared nervous. Winslett learned from dispatch that the truck had been reported stolen, and he searched Azevedo. In Azevedo's front pants pocket, he found Walterhouse's driver's license inside a wallet, Walterhouse's AAA card, and a set of car keys.
A witness driving by observed a man with his eyes closed sitting in the driver's seat of the truck. She reported the truck to the police because she was concerned the driver was suffering a medical emergency.
Winslett did not try to start the truck with the keys found in Azevedo's pocket, but he tested the key fob, which locked and unlocked the truck.
Walterhouse had not given anyone permission to drive his truck or use his expired ID or AAA card, and the car keys Azevedo had were not Walterhouse's. Richard Walterhouse (the registered owner of the truck) did not give anyone permission to drive the truck either. There were no signs of forced entry to the truck—no broken windows or "punched out" ignition. When Walterhouse later recovered his truck, it was completely out of gas.
The prosecution presented evidence that Azevedo had stolen two vehicles in the previous year. In August 2013, Matthew McMullen reported that his Jeep had been stolen from outside his condominium complex in Danville. Two days after McMullen reported his Jeep stolen, Azevedo was stopped in Martinez in McMullen's Jeep. When the Jeep was returned to McMullen, the ignition no longer required a key, the locking gas cap was gone, and there was a dent on the right front fender. Eight days after McMullen recovered his Jeep, it went missing again. Azevedo was stopped by the police in Martinez driving McMullen's Jeep. In September 2013, Azevedo admitted to a Martinez police detective that he had stolen McMullen's Jeep two times. According to the detective, Azevedo said he did it "for the rush."
In October 2013, Leo Sacauskas reported that his white Chevy Tahoe, an SUV, had been stolen from a parking stall in his apartment complex in Martinez. Two days later at about 4:15 a.m., a police officer observed Sacauskas's SUV parked in San Ramon with its hazard lights flashing and a person standing near the left bumper. By the time the officer parked behind the SUV to investigate further, the person who had been standing nearby was gone. The officer learned the SUV had been reported stolen. Her investigation led her to Azevedo, who was at his grandmother's apartment in Danville, two-tenths of a mile from where the SUV was found. A debit MasterCard and another credit card in Sacauskas's name were in Azevedo's jacket pocket. Azevedo admitted he took the SUV. He used a screwdriver to start the engine. When Sacauskas recovered his SUV, the battery was dead, it was out of gas, and everything was "in disarray inside the car." His checkbook, license, and bank card were no longer in the console where he had left them, and the ignition had been punched out.
Azevedo said he took the SUV because he was upset with his mother. Azevedo's mother lived in Martinez and his grandmother lived in Danville.
The parties stipulated that Azevedo entered pleas of no contest to two charges of violation of Vehicle Code 10851, arising from taking McMullen's Jeep twice in August 2013, and taking Sacauskas's SUV in October 2013.
Defense
Azevedo testified in his own defense. He was 20 years old and had not finished high school. He testified that the first time he saw Walterhouse's Ford truck was when his friend, Donovan St. John, pulled up in it. It was about midnight or 12:30 a.m. on August 6, 2014, and St. John drove up in the truck to meet Azevedo in front of Azevedo's grandmother's apartment building. As far as Azevedo knew, St. John did not own a car. St. John said he paid a buddy to use the truck, and Azevedo believed him. The truck ran out of gas. Azevedo walked to a gas station, but he did not have enough money to buy a gas container. When he returned to the truck, he saw St. John coming out of the passenger's side holding a flip wallet with an ID card and a AAA card. St. John called AAA, and handed Azevedo his phone. Azevedo told the AAA dispatcher his name was "Eric Walterhouse," but gave the dispatcher St. John's cell phone number and his own email address. Someone from AAA came and put gas in the truck. St. John and Azevedo drove to the Martinez marina where they drank alcohol and smoked marijuana. Later, Azevedo recalled waking up near St. John's house in Pleasant Hill. They went to a mall and a gym. While they were at the gym, Azevedo wanted to buy cigarettes, and St. John gave him the keys to the truck. Azevedo got lost in the back roads of Pleasant Hill, and the truck ran out of gas again. He sat on the passenger side of the truck, turned the radio on, and dozed off. When he woke up, a police officer had arrived. Azevedo was scared because his "reputation is well known in Martinez as a vehicle theft person." But, he did not think the truck was stolen and thought the police "were going to help" him. He thought he absentmindedly put the wallet (with Walterhouse's ID and AAA card) in his pocket.
Azevedo testified he first met St. John about a year or year and half earlier "at a house doing drugs." They "would hang out, do drugs together, talk, party" and "became friends like that." He and St. John also were in jail at the same time. They were cellmates, and during their time together they talked a lot about "doing good out there, staying sober, doing the right things." St. John did not have a job as far as Azevedo knew. On previous occasions, St. John would get a ride from his mother or his sister.
Officer Winslett (who found Azevedo in Walterhouse's truck in Martinez) testified that he tried to contact St. John, but he never was able to speak with him. In addition, a Contra Costa County probation officer testified that she supervised St. John's probation in 2014, and at that time, he was in violation of probation and had a new arrest for attempted car theft (Veh. Code, § 10851).
A recording of the AAA call was played for the jury, and Azevedo agreed it was his voice on the call. Azevedo testified that he lied to the dispatcher because he knew AAA would only help the card holder, but that he thought it fine because St. John gave him the impression his buddy was okay with them using his AAA card.
Azevedo admitted he pled guilty to four counts of felony taking a vehicle without consent in 2013 and he pled guilty to felony passing false checks and commercial burglary. He said his mother was a drug addict, and he "turned into one," too. He explained he committed forgery to pay for drugs and he took cars to get where he needed to go. He said he always pled guilty to the crimes he committed, but he did not plead guilty in the current case because he did not do it; he did not know the truck was stolen.
In cross-examination, Azevedo testified he was released from jail on August 2, 2014. When St. John met up with him four days later, Azevedo "wasn't expecting him to show up in a vehicle." Azevedo glanced at St. John, as if to say, "Like 'Okay. Who did you borrow or who did you get the truck from this time?' " Azevedo was suspicious. St. John said, " 'Don't worry. I got the truck from a buddy. He just wants a tank of gas. I paid him a couple bucks to use it for the day.' " Azevedo testified he looked at the ignition and it had keys that "[l]ook[ed] like real keys," so he believed St. John. He did not ask who the buddy was.
DISCUSSION
A. Admission of Evidence of Prior Car Thefts
Azevedo contends the trial court abused its discretion in admitting under Evidence Code section 1101, subdivision (b), evidence that he stole two vehicles in three separate incidents in 2013. He argues, first, the evidence was irrelevant to the issues of knowledge and intent and, second, it took an inordinate amount of time and should have been excluded under Evidence Code section 352.
Further undesignated statutory references are to the Evidence Code.
"The general public policy on character or propensity evidence is that it is not admissible to prove conduct on a given occasion." (People v. Cottone (2013) 57 Cal.4th 269, 285 [citing § 1101, subd. (a)].) However, evidence of a defendant's uncharged conduct is admissible if relevant to demonstrate a fact (other than propensity) such as "motive, opportunity, intent, preparation, plan, knowledge, identity, [or] absence of mistake or accident." (§ 1101, subd. (b).) We review for abuse of discretion a trial court's decision to admit evidence of uncharged conduct under section 1101, subdivision (b), and section 352. (People v. Fuiava (2012) 53 Cal.4th 622, 667-668.)
Here, Azevedo was charged with receiving a stolen motor vehicle, an offense that requires that the defendant knew the property was stolen when he received it. (Pen. Code, § 496d, subd. (a); People v. Russell (2006) 144 Cal.App.4th 1415, 1425 ["Although receiving stolen property has been characterized as a general intent crime, the second element of the offense is knowledge that the property was stolen, which is a specific mental state."], disapproved of on another point by People v. Covarrubias (2016) 1 Cal.5th 838, 874, fn. 14 (Covarrubias).) Thus, the prosecution had to prove Azevedo knew that the truck in which he was found at the side of the road by a police officer was stolen.
Prior to trial, the prosecution sought to admit evidence of six prior incidents of vehicle theft that Azevedo committed in 2013 to show his intent, knowledge, and absence of mistake in the charged offense of receiving a stolen motor vehicle. The trial court found Azevedo's prior conduct was relevant and ruled that three of the six incidents, involving two vehicles, could be admitted. The court reasoned: "[I]t is a balance that I'm required to achieve between the probative value of the defendant's six prior instances of allegedly having driven stolen cars in the last year and the year of 2013 compared with the prejudice to the defendant from having the jury aware of those prior events and convictions. [¶] I think there's no question that the evidence is relevant to both knowledge and intent, although knowledge may be one of the disputed issues, intent to permanently deprive and also [is] also an element the People are required to prove. [¶] . . . [¶] It may also be characterized as absence of mistake. I think that's kind of the way of saying —another way of saying knowledge."
The court explained that limiting the prosecution to three incidents, which resulted in two convictions, would reduce the time it would take to prove them. The court excluded the other three incidents "primarily on [section] 352 grounds," stating, "Although all of them would be relevant to knowledge and intent, I don't want to risk . . . the jury using the priors to convict him of this offense."
We see no abuse of discretion in admitting this evidence. Azevedo's prior car thefts were relevant to show knowledge that Walterhouse's truck was stolen. (See People v. Pic'l (1981) 114 Cal.App.3d 824, 856 (Pic'l) [evidence that defendant stole property was relevant to issue of knowledge, an element of the charged offense of receiving stolen property], disapproved on another ground in People v. Kimble (1988) 44 Cal.3d 480, 496, fn. 12.) Azevedo's testimony that he believed the truck was borrowed with permission from the owner was, on its face, somewhat improbable. Evidence that Azevedo had recently stolen vehicles was relevant to his knowledge or lack of mistake as it undermined his claim that he sincerely believed the truck was borrowed and not stolen.
According to Azevedo, St. John—an acquaintance with whom he took drugs who had no job or car and previously got around with rides from his relatives—showed up in a truck Azevedo had never seen before, and Azevedo believed St. John's story that a "buddy" allowed St. John to use the truck and that this buddy also would have allowed St. John and Azevedo to use his ID and AAA card. Azevedo was suspicious, but he did not ask who the buddy was, even though he knew St. John had a criminal history as they had just seen each other in jail.
Azevedo argues the evidence was not relevant to the issue of knowledge because the prior crimes were not similar to the charged crime. He relies on People v. Hendrix (2013) 214 Cal.App.4th 216 (Hendrix), in which the court held, "to establish knowledge when that element is akin to absence of mistake, the uncharged events must be sufficiently similar to the circumstances of the charged offense to support the inference that what defendant learned from the prior experience provided the relevant knowledge in the current offense." (Id. at pp. 242-243.)
In Hendrix, defendant Hendrix was charged with resisting or obstructing a police officer. In the charged incident, Hendrix fought with a private security guard in an apartment complex at around 8:00 p.m., and the security guard pepper-sprayed him. Then around an hour later, Hendrix was chased by security guards in black uniforms and police officers in dark blue uniforms, and he used force against an officer who was trying to detain him. Hendrix argued that he may have confused the officer for a security guard. (Hendrix, supra, 214 Cal.App.4th at pp. 221, 227-228.) The trial court allowed the prosecution to present evidence of two prior incidents of Hendrix resisting arrest—one in which he "violently resisted" a Sacramento police officer in 2005, and another in which he "passively resisted" an Alameda police officer in 1993—for the limited purpose of showing knowledge and to rebut mistake of fact. (Id. at pp. 222, 225.) But the Court of Appeal concluded this was error. (Id. at p. 239.)
The Hendrix court explained that the factual issue the jury was tasked to resolve was whether Hendrix knew the person he used force against was a police officer or whether he mistakenly thought he was a security guard. Thus, for example, "the prior incidents would be probative if the circumstances under which defendant encountered the police on those prior occasions involved interaction with security guards." (Hendrix, supra, 214 Cal.App.4th at p. 243.) The court found the proffered evidence of the 1993 and 2005 incidents, which did not involve security guards, lacked probative value on the issue of knowledge and lack of mistake given their lack of similarity to the circumstances of the charged offense. (Id. at p. 244.)
As the Attorney General points out, there were marked similarities between the charged offense and the uncharged incidents in this case. In each incident, Azevedo was found in or near a stolen vehicle within a day or two of the vehicle being reported stolen. Each incident involved a truck-like vehicle (previously, a Jeep and a Tahoe SUV; currently, a Ford truck) that traveled between Martinez and the San Ramon/Danville area. In the current case, Azevedo was found in a stolen truck that was out of gas and had its turn signal on, and Azevedo was found with the ID card and AAA card of the truck's owner in his pants pocket. Similarly, in the Sacauskas case, the stolen SUV was found on the side of the road with its hazard lights on, it was out of gas when it was recovered, and Azevedo was found with Sacauskas's debit and credit cards in his pocket. Applying the Hendrix analysis, we conclude the uncharged events were sufficiently similar to the circumstances of the charged offense to support an inference of knowledge. Again, evidence of these incidents places into question Azevedo's claim that he believed Walterhouse's truck was borrowed, not stolen.
In the current case, Walterhouse's truck was stolen from San Ramon and found in Martinez. In the McMullen case, the Jeep was stolen from Danville and found in Martinez. In the Sacauskas case, the SUV was stolen from Martinez and found in San Ramon. Recall that Azevedo's mother lives in Martinez and his grandmother lives in Danville.
The trial court also found the prior incidents relevant to intent. "The reasoning underlying use of an actor's prior acts as circumstantial evidence of that actor's later intent is well explained by Wigmore. It is based on 'the doctrine of chances—the instinctive recognition of that logical process which eliminates the element of innocent intent by multiplying instances of the same result until it is perceived that this element cannot explain them all. Without formulating any accurate test, and without attempting by numerous instances to secure absolute certainty of inference, the mind applies this rough and instinctive process of reasoning, namely, that an unusual and abnormal element might perhaps be present in one instance, but that the oftener similar instances occur with similar results, the less likely is the abnormal element likely to be the true explanation of them. [¶] . . . In short, similar results do not usually occur through abnormal causes; and the recurrence of a similar result (here in the shape of an unlawful act) tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act; and the force of each additional instance will vary in each kind of offense according to the probability that the act could be repeated, within a limited time and under given circumstances, with an innocent intent.' " (People v. Robbins (1988) 45 Cal.3d 867, 879-880, quoting 2 Wigmore, Evidence (Chadbourn rev. 1979) § 302, at p. 241, superseded by statute on another point as stated in People v. Jennings (1991) 53 Cal.3d 334, 387, fn. 13.)
The offense of receiving a stolen motor vehicle requires that the motor vehicle be stolen or obtained by theft. (See People v. MacArthur (2006) 142 Cal.App.4th 275, 279-280.) Theft, in turn, requires that the taker "intended to deprive the owner of [the property] permanently or to remove it from the owner's possession for so extended a period of time that the owner would be deprived of a major portion of the value or enjoyment of the property." (CALCRIM No. 1800; see People v. Aguilera (2016) 244 Cal.App.4th 489, 500.) Thus, the prosecution had to prove that Walterhouse's truck was stolen, i.e., taken with the requisite intent (and not borrowed as Azevedo claimed). In this context, if the jury determined that Azevedo participated in the taking of the truck, then evidence of his prior conduct would be relevant to show he acted with the requisite intent to establish the truck was stolen, an element of the charged offense of receiving a stolen motor vehicle.
The jury in this case was given CALCRIM No. 1800 on theft by larceny.
We also find no abuse of discretion under section 352. The trial court admitted evidence of three of six proffered prior acts of vehicle theft after weighing the probative value of the evidence against the risk of undue prejudice, confusing the issues, or misleading the jury, as section 352 requires. As we have discussed, the evidence was relevant to the issues of knowledge and intent. Our high court has recognized, "The close proximity in time of the uncharged offenses to the charged offenses increases the probative value of this evidence." (People v. Balcom (1994) 7 Cal.4th 414, 427.) Here, Azevedo's prior vehicle thefts were particularly probative because they occurred within the year before he was found in Walterhouse's stolen truck. The potential for prejudice was reduced because the jury learned the prior conduct resulted in two convictions for vehicle theft, minimizing the risk that a jury would seek to punish Azevedo in this case for the uncharged acts. (Ibid.) The trial court reasonably limited the prosecution to presenting three of the six prior vehicles thefts (all six car thefts were relevant and occurred in 2013) in order to save time and avoid jury confusion. Azevedo argues the prior-acts evidence required an undue consumption of time. The record does not bear this out. All of the evidence in the case was presented to the jury in two days. The defense theory and Azevedo's testimony placed at issue whether the truck was stolen and whether he knew it was stolen in what was a straight-forward case. Under these circumstances, we cannot say the prior-acts evidence in this case took so much time it amounted to a violation of section 352.
The prior-acts evidence involved five witnesses and a stipulation that Azevedo was convicted of two counts of vehicle theft. It took up about 30 percent of the prosecution's case as measured by pages of the reporter's transcript for the prosecution's witnesses.
Finally, Azevedo contends that the trial judge misinstructed the jury on the use of the section 1101, subdivision (b) evidence, which served to exacerbate the confusion of a jury already confused by irrelevant prior-acts evidence. The trial court instructed the jury that the prior-acts evidence could be used for limited purposes only, giving a modified version of CALCRIM No. 375. Azevedo frames his argument this way: "rather than basing an entire argument on the instruction being confusingly worded, [Azevedo] is asserting that any chance that the instructions would ameliorate the trial court's error in admitting prejudicial and irrelevant evidence was lost when it gave this deficient instruction." Azevedo argues the version of CALCRIM No. 375 given was incorrect because it provided that evidence could be used to show (in addition to knowledge and intent) motive, that his actions were the result of mistake or accident, and that he believed Walterhouse or Richard Walterhouse consented to his possession of the truck, although the trial court did not rule the evidence was admissible in considering these additional issues. Azevedo points out the instruction also stated the evidence could be used for the limited purpose of determining his credibility. The Attorney General responds that Azevedo forfeited these challenges to the jury instruction by failing to raise them at trial. In reply, Azevedo argues that his trial counsel did object to the court's proposed wording of CALCRIM No. 375, but he does not demonstrate that counsel raised the particular challenges (inclusion of motive, consent, and credibility) he now raises on appeal. In any event, we fail to see how the alleged instructional error caused him harm. It was not error to admit the prior acts evidence. The trial court correctly instructed the jury not to consider the evidence "for any other purpose" and not to "conclude from this evidence that the defendant has a bad character or is disposed to commit crime." We cannot say there is a reasonable probability the result would have been more favorable to Azevedo had the alleged instructional errors not occurred. B. Jury Instruction on Aiding and Abetting
In fact, the trial court agreed to modify CALCRIM No. 375 to make the changes that Azevedo's counsel requested at the jury instruction conference.
Azevedo points out that in addition to the other limitations placed on the use of the prior acts evidence in CALCRIM No. 375, the instruction also told the jury, "Do not consider this evidence for any other purpose except for the limited purpose of determining the defendant's credibility." Azevedo reasons that this language was included because "the court allowed impeachment with other prior convictions beyond the acts testified to under 1101(b)." Not disputing the intrinsic correctness of the statement, Azevedo complains that it wasn't clarified that this language from the instruction applied only to those "separate matters introduced for impeachment." Elsewhere the jury was instructed that in judging the credibility of a witness, the jury could consider whether the witness had been convicted of a felony. We are not persuaded that the instructions read together created confusion to the prejudice of defendant. --------
At the close of evidence, the prosecutor requested to add jury instructions for aiding and abetting, "based on the defendant's testimony." Azevedo's counsel did not object, and the trial court granted the request. The jury was given CALCRIM Nos. 400 (aiding and abetting: general principles) and 401 (aiding and abetting; intended crimes).
Azevedo contends the trial court erred in giving these instructions because there was no evidence that supported a theory of guilt based on aiding an unknown perpetrator in the commission of an unidentified crime. The Attorney General again responds that Azevedo forfeited this argument because he did not raise it at trial. Azevedo replies that he may challenge the instructions for the first time on appeal because his substantial rights were affected. (Pen. Code, § 1259.) We consider Azevedo's argument, but find no prejudicial error.
"It is error to give an instruction which, while correctly stating a principle of law, has no application to the facts of the case." (People v. Guiton (1993) 4 Cal.4th 1116, 1129.) The error is one of state law, and when there is error, we reverse only "if it is reasonably probable the result would have been more favorable to the defendant had the error not occurred. [Citation.] [¶] In determining whether there was prejudice, the entire record should be examined, including the facts and the instructions, the arguments of counsel, any communications from the jury during deliberations, and the entire verdict." (Id. at p. 1130.)
The Attorney General argues the evidence at trial warranted the instructions. The testimony of Walterhouse and his father established that his truck was stolen. Based on Azevedo's testimony that St. John showed up in Walterhouse's truck and that Azevedo initially was suspicious about how St. John had obtained the truck, the jury could infer that St. John was the one who had stolen the truck and that Azevedo knew the truck was stolen. Thus, the Attorney General posits, "by driving around as a passenger inside the stolen truck with St. John without making any attempt to return the truck to its lawful owner, [Azevedo] was intending to, and did, in fact, aid St. John in withholding the truck from its lawful owner."
We need not decide the merit of the Attorney General's position because, even assuming instructional error, we find no prejudice. In People v. Perez (2005) 35 Cal.4th 1219, 1233, cited by Azevedo, the Supreme Court explained the "harmless error analysis depends on whether a jury has been presented with a legally invalid or a factually invalid theory." When there is a mistake about the law, "the jury cannot reasonably be expected to divine its legal inadequacy. The jury may render a verdict on the basis of the legally invalid theory without realizing that, as a matter of law, its factual findings are insufficient to constitute the charged crime. In such circumstances, reversal generally is required unless 'it is possible to determine from other portions of the verdict that the jury necessarily found the defendant guilty on a proper theory.' [Citation.] [¶] In contrast, when one of the theories presented to a jury is factually inadequate, such as a theory that, while legally correct, has no application to the facts of the case, we apply a different standard. [Citation.] In that instance, we must assess the entire record, 'including the facts and the instructions, the arguments of counsel, any communications from the jury during deliberations, and the entire verdict.' [Citation.] We will affirm 'unless a review of the entire record affirmatively demonstrates a reasonable probability that the jury in fact found the defendant guilty solely on the unsupported theory.' " (Ibid.)
Azevedo does not claim the instructions misstate the law of aid and abetting; he argues only that the evidence did not support giving the instructions. In other words, his argument is that the instructions had no application to the facts of the case, that is, they were factually inadequate. Therefore, we assess the entire record including the facts, instructions, arguments of counsel, communications from the jury, and the entire verdict to determine whether there was prejudice. The evidence showed that Azevedo was found alone in Walterhouse's truck after it had been reported stolen, and he admitted he had been using the truck for many hours and he was driving the truck alone when it ran out of gas. The contested issues at trial were whether Azevedo knew the truck was stolen and whether the truck was stolen. The jury was instructed that "[s]ome of those instructions may not apply." On appeal, Azevedo concedes the prosecutor did not argue a theory of aiding and abetting in her closing. During deliberation, the jury did not ask any questions suggesting it was considering aider-and-abettor liability. Having reviewed the record, we conclude that nothing demonstrates a reasonable probability that the jury found Azevedo guilty solely on the theory of aiding and abetting. Accordingly, assuming arguendo the aiding-and-abetting instructions were given in error, the error does not warrant reversal. C. Failure to Instruct on Mistake of Fact
Azevedo's last argument is that the trial court had a sua sponte duty to instruct the jury on the defense of mistake of fact. We disagree.
" 'In criminal cases, even in the absence of a request, a trial court must instruct on general principles of law relevant to the issues raised by the evidence and necessary for the jury's understanding of the case.' [Citation.] That duty extends to ' "instructions on the defendant's theory of the case, including instructions 'as to defenses " 'that the defendant is relying on . . ., or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case.' " ' " ' [Citation.] But ' "when a defendant presents evidence to attempt to negate or rebut the prosecution's proof of an element of the offense, a defendant is not presenting a special defense invoking sua sponte instructional duties. While a court may well have a duty to give a 'pinpoint' instruction relating such evidence to the elements of the offense and to the jury's duty to acquit if the evidence produces a reasonable doubt, such 'pinpoint' instructions are not required to be given sua sponte and must be given only upon request." ' [Citation.]" (People v. Anderson (2011) 51 Cal.4th 989, 996-997, italics added.)
In Covarrubias, supra, 1 Cal.5th 838, the defendant argued the trial court should have instructed the jury sua sponte on the claim-of-right defense to a robbery charge because there was evidence that the defendant thought he was helping his cousin regain his own property from the victims' residence. (Id. at pp. 849, 872.) Our high court rejected this argument, explaining, "because the asserted claim of right served only to negate the intent to steal element of the robbery charges and the trial court otherwise properly instructed the jury on this element, it was not required to instruct on the defense in the absence of a request by trial counsel." (Id. at p. 874.) In reaching it conclusion, the court expressly disapproved People v. Russell, supra, 144 Cal.App.4th at page 1431, in which the appellate court previously held, in a trial on a charge of receiving a stolen motorcycle, the trial court had a sua sponte duty to instruct on the defenses of mistake of fact and claim of right " 'if it appeared defendant was relying on the defenses, or if there was substantial evidence supportive of the defenses and they were not inconsistent with defendant's theory of the case.' " (Covarrubias at p. 874, fn. 14.)
As we have seen, knowledge that Walterhouse's truck was stolen was an element of the charge of receiving a stolen motor vehicle in this case. Azevedo's claim that he did not know the truck was stolen was an attempt to negate or rebut the prosecution's proof of that element of the offense. Covarrubias makes clear the trial court had no sua sponte duty to instruct on mistake of fact in these circumstances. D. Cumulative Error
Finally, Azevedo asserts the accretion of errors caused him prejudice. We have concluded the trial court did not abuse its discretion in allowing evidence of Azevedo's prior car thefts, and the trial court was not required to instruct on mistake of fact sua sponte. We have assumed the instructions on aiding and abetting were given in error, but we have found no prejudice. Since we have found only one potential error and concluded it was harmless, there is no cumulative prejudicial error.
DISPOSITION
The judgment is affirmed.
/s/_________
Miller, J. We concur: /s/_________
Richman, Acting P.J. /s/_________
Stewart, J.