Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. NA075858, Gary J. Ferrari, Judge.
Steven E. Moyer, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Beverly K. Falk, Deputy Attorneys General, for Plaintiff and Respondent.
MANELLA, J.
Defendant and appellant Carlos Chavez challenges his conviction for carjacking. He argues hearsay evidence was improperly admitted, the prosecutor committed misconduct during her closing argument, and the trial court should have instructed the jury on lesser included offenses. We agree that hearsay evidence was improperly admitted but find that the error was not prejudicial. We reject defendant’s remaining contentions and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
1. Information
It was alleged that on August 31, 2007, defendant committed a carjacking by “unlawfully tak[ing] a motor vehicle in the possession of LISSETTE LUJAMBIO from... her person and immediate presence and from the person and immediate presence of a passenger of said motor vehicle, against the will and with the intent to permanently and temporarily deprive the person in possession of the motor vehicle of the possession and accomplished by means of force and fear.” (Italics added.) During trial, the prosecutor sought to amend the information to substitute “or” for the italicized term “and.” The court indicated that the carjacking offense codified in Penal Code section 215 is phrased in the disjunctive, consistent with the prosecutor’s requested amendment. Defense counsel did not object to the proposed amendment.
Undesignated statutory citations are to the Penal Code.
2. Trial
Defendant and Lujambio had been in a romantic relationship for four years prior to the incident underlying defendant’s conviction. Defendant admitted that he took a vehicle from Lujambio’s possession without her permission. He claimed, however, that he did not use force or fear when he took the vehicle.
a. Prosecution Evidence
i. Lujambio’s Testimony
Lujambio was employed by a pharmacy to deliver medications to clients’ homes, and she drove a company car. On August 30, 2007, Lujambio and defendant argued, and defendant told Lujambio that he would steal the company car to get her in trouble. The next day, after Lujambio completed her deliveries and was about to return the car, she saw defendant. She stopped to find out what defendant wanted. Defendant “went towards [her]... grabbed [her] by the neck and then... threw [her] on the passenger side” of the car, hurting her. Defendant then announced, “Let’s go.” When defendant stated his intention to “go somewhere far” with her, Lujambio got out of the car. Lujambio testified that defendant was stronger than she was.
Defendant drove away, returned, and then left again. Lujambio did not give him permission to take the car. Lujambio called defendant’s uncle, Jerman Chavez (Jerman), and then called the police. Lujambio also called defendant’s father, Juan, who said defendant was not with him. The next day, September 1, Lujambio called defendant’s mother, Graciella Coronado, in an attempt to locate the car. Lujambio was afraid to return to work and took a week off, eventually quitting her job because she was afraid defendant would look for her.
Because defendant, his father and his uncle share a surname, we refer to the latter two by their first names.
ii. Officer Maliniga Nua’s Testimony
At approximately 7:15 p.m. on August 31, 2007, Officer Maliniga Nua received a call of a carjacking in progress, and he immediately responded. When he arrived at the scene, Lujambio told him that defendant had taken the company car after choking her and pushing her toward the passenger seat.
b. Defense Evidence
i. Defendant’s Testimony
Defendant testified that on August 31, 2007, Lujambio drove to the hotel in Wilmington where they were living and told defendant that his father, Juan, had called. Lujambio allowed defendant to enter the passenger side of the car. Defendant called his father who asked for a ride home to Temecula. Lujambio agreed to pick up Juan after completing her deliveries. Lujambio left to complete her deliveries and then returned to Wilmington to pick up defendant at the hotel. During the ride to pick up Juan, Lujambio told defendant she would not drive Juan home to Temecula. Defendant then developed a “plot” “to take the car.” Defendant explained, “I had already [decided]... that I was going to take the car.” When they returned to Wilmington, Lujambio refused to drive Juan to Temecula and told defendant he could not take the car.
Defendant and Lujambio exited the car to discuss matters outside of Juan’s presence. Defendant told Lujambio, “‘I’m just going to take the car whether you like it or not....’” Defendant testified that he planned to take the car “against her will, ” and took the car without her permission. Lujambio did nothing to stop him, so defendant took the car, leaving Lujambio on the sidewalk. Defendant told Lujambio that he would return the car. Defendant denied choking Lujambio or throwing her into the passenger seat. He denied using any kind of force to take the car. Defendant admitted he took the car without Lujambio’s consent and acknowledged that he “shouldn’t have taken it....” Previously, defendant had twice been convicted of driving without a license.
ii. Defendant’s Father’s Testimony
Defendant’s father, Juan, testified that on August 31, 2007, he worked for Camino Real Chevrolet in Monterey Park. He was having a problem with his van that day, and he asked defendant for a ride home to Temecula from work. Defendant and Lujambio drove to Monterey Park to pick him up. Lujambio was driving. When they returned to Wilmington, Lujambio and defendant exited the car and spoke. Defendant then returned to the car and drove Juan home to Temecula.
Juan testified he did not see defendant choke Lujambio, and defendant did not take the car by force. After driving Juan home, defendant decided to stay with him in Temecula. Juan testified that upon returning home, he called Lujambio to tell her to pick up the car, but she was very upset and hung up the phone.
iii. Defendant’s Uncle’s and Mother’s Testimony
Defendant’s uncle, Jerman, denied that Lujambio called him on August 31, 2007. Defendant’s mother, Coronado, denied speaking with Lujambio in September 2007.
c. Rebuttal and Surrebuttal
Efren Aguilar, an employee at Camino Real Chevrolet, testified that Juan stopped working there on July 19, 2007. Over objection, Aguilar testified that he confirmed Juan’s employment dates through company records. In surrebuttal, Jerman testified that Juan was still working at Camino Real Chevrolet in August 2007.
3. Instructions
The court rejected defense counsel’s request to instruct the jury on Penal Code section 487, grand theft. On the charged offense of carjacking, the jury was instructed that “[e]very person who takes a motor vehicle in the possession of another from his or her person or immediate presence or from the person or immediate presence of a passenger of the motor vehicle against his or her will, and with the intent to either permanently or temporarily deprive the person in possession of the vehicle of his or her possession, accomplished by means of force or fear, is guilty of the crime of carjacking in violation of Penal Code section 215.”
4. Verdict and Sentencing
The jury found defendant guilty of carjacking. The court sentenced him to five years in state prison.
DISCUSSION
Defendant challenges the admission of Aguilar’s testimony that he confirmed Juan’s last day at Camino Real Chevrolet by checking records. Defendant further argues the prosecutor committed misconduct during her closing argument. Finally, defendant contends the court should have instructed the jury on the lesser included offenses of unlawfully taking a vehicle and grand theft auto.
1. The Evidentiary Error Was Not Prejudicial
We first address defendant’s claim that the trial court improperly admitted hearsay evidence regarding Juan’s employment over his counsel’s objection.
a. Additional Background
Juan testified that he worked at Camino Real Chevrolet until October 2007. He testified he was working there on August 31, 2007, the date of the incident, and needed a ride home that evening because his van was not working properly.
Dealership employee, Aguilar, testified that the last day Juan worked at the car dealership was July 19, 2007. According to Aguilar, this date was based both on his recollection and on company records he had reviewed. Defense counsel objected that Aguilar’s testimony that he had checked the records called for the admission of hearsay. The prosecutor did not seek to introduce the records Aguilar had used to confirm his recollection. Documents upon which Aguilar relied were not provided, authenticated, or admitted into evidence. On cross-examination, Aguilar acknowledged having no personal knowledge of the day Juan quit. Additionally, Aguilar acknowledged the possibility that even if Juan had officially quit, he could have had an agreement with the owner of the car dealership to continue working there.
On appeal, defendant argues that Aguilar’s testimony that he confirmed Juan’s employment using company records was hearsay, and that its improper admission was prejudicial. Respondent argues the evidence was properly admitted under Evidence Code section 1523 (section 1523). That section provides: “(a) Except as otherwise provided by statute, oral testimony is not admissible to prove the content of a writing. [¶] (b) Oral testimony of the content of a writing is not made inadmissible by subdivision (a) if the proponent does not have possession or control of a copy of the writing and the original is lost or has been destroyed without fraudulent intent on the part of the proponent of the evidence. [¶] (c) Oral testimony of the content of a writing is not made inadmissible by subdivision (a) if the proponent does not have possession or control of the original or a copy of the writing and either of the following conditions is satisfied: [¶] (1) Neither the writing nor a copy of the writing was reasonably procurable by the proponent by use of the court’s process or by other available means. [¶] (2) The writing is not closely related to the controlling issues and it would be inexpedient to require its production. [¶] (d) Oral testimony of the content of a writing is not made inadmissible by subdivision (a) if the writing consists of numerous accounts or other writings that cannot be examined in court without great loss of time, and the evidence sought from them is only the general result of the whole.” As we explain below, the section is inapplicable.
b. Analysis
“‘Hearsay evidence’ is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.” (Evid. Code, § 1200, subd. (a).) A written expression constitutes a statement for purposes of the hearsay rule. (Evid. Code, § 225 [“‘Statement’ means (a) oral or written verbal expression....”].) Aguilar’s testimony that documents confirmed Juan’s last day at work was July 19, 2007, was based on an extrajudicial statement -- the records of the dealership -- admitted for the truth of the matter asserted. This testimony, therefore, was hearsay. Absent an exception to the hearsay rule, the evidence should have been excluded. (Evid. Code, § 1200, subd. (b) [“Except as provided by law, hearsay evidence is inadmissible”].)
Section 1523 does not provide an exception to the hearsay rule. Instead, section 1523 contains a separate requirement in addition to the hearsay rule where the extrajudicial statement sought to be admitted constitutes oral testimony to prove the content of a writing. (Dart Industries, Inc. v. Commercial Union Ins. Co. (2002) 28 Cal.4th 1059, 1070, fn. 2 [oral testimony to prove a writing must comply with rules of evidence including hearsay rule].) The trial court should have sustained defense counsel’s objection to that portion of Aguilar’s testimony purporting to establish that the dealership records confirmed that Juan’s last day at work was July 19, 2007.
Admission of the evidence, however, was not prejudicial. As noted above, Aguilar acknowledged that Juan may have had an agreement with the owner to keep working at the dealership after his official employment terminated. More significantly, where Juan worked was a collateral issue. Given that defendant admitted to taking the vehicle, the only real issue was whether he took it by force or fear. Juan’s employment had no bearing on that issue. Additionally, though Juan’s testimony, if credited, placed him at the scene of the crime, he did not purport to overhear the conversation between defendant and Lujambio and therefore could not testify as to the only issue in dispute. Given the tangential relevance of the evidence, it is not reasonably probable that absent evidence that records confirmed Juan’s last day at Camino Real Chevrolet was in July, defendant would have obtained a more favorable verdict. (See People v. Cudjo (1993) 6 Cal.4th 585, 611 [evidentiary error harmless if it does not appear reasonably probable verdict was affected]; People v. McNeal (2009) 46 Cal.4th 1183, 1203 [same].)
2. Alleged Prosecutorial Misconduct
We turn next to defendant’s argument that the prosecutor committed misconduct during closing argument when she argued that none of defendant’s family members contacted the police. We first provide additional background and then consider defendant’s contention.
a. Additional Background
During direct examination, Juan testified he did not know there was a warrant for defendant’s arrest. Prior to the arrest, he knew of no allegations of carjacking. During cross-examination, without objection, the prosecutor asked Juan why, following defendant’s arrest and detention, he never told the police that defendant was being held for a crime he did not commit. Juan testified he never went to the police because he communicated with the public defender. In response to further questioning, Juan testified that he drove to court with defendant’s mother and uncle and knew they all would testify. Defendant’s mother, Coronado, also testified that she did not go to the police though she knew defendant was innocent. The prosecutor did not ask defendant’s uncle whether he spoke to the police, and no evidence was admitted indicating that he had.
During closing argument, the prosecutor asked rhetorically, “how come this all comes up now? How come [Juan is] interviewed mid-November and that’s the first the police or anybody ever hear about this defense? It’s because the defendant hadn’t had enough time.” Defense counsel’s objection was overruled and the prosecutor continued: “[W]hy didn’t they come to the police, the father and the uncle and his mother? If they [had] such powerful information and with all the time they had to prepare -- to create this defense? That’s what happened here.”
Father testified that he was interviewed in the middle of November and that he had spoken to a lawyer before that date.
b. Analysis
Standards governing prosecutorial misconduct are well established. “‘“‘A prosecutor’s... intemperate behavior violates the federal Constitution when it comprises a pattern of conduct “so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.”’” [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves “‘“the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.”’” [Citation.]’ [Citation.]” (People v. Hill (1998) 17 Cal.4th 800, 819; see also People v. Lopez (2008) 42 Cal.4th 960, 965.) “The prosecutor is permitted to urge, in colorful terms, that defense witnesses are not entitled to credence, to comment on the failure to produce logical evidence, to argue on the basis of inference from the evidence that a defense is fabricated....” (People v. Pinholster (1992) 1 Cal.4th 865, 948.) However, referring to facts not in evidence is misconduct. (People v. Hill, supra, 17 Cal.4th at pp. 827-828.)
Defendant has not shown the prosecutor committed misconduct. He does not challenge the admission of evidence that neither defendant’s father nor his mother reported exculpatory evidence to the police. A prosecutor may comment on the state of the evidence including the absence of evidence. (People v. Cook (2006) 39 Cal.4th 566, 608.) Defendant’s only challenge is to the prosecutor’s brief reference to Jerman in the midst of her argument that focused primarily on Juan’s failure to report information to the police. The fleeting reference to Jerman did not constitute misconduct as it neither involved a pattern of conduct so egregious that it infected the trial and denied defendant due process, nor involved the use of deceptive or reprehensible methods to attempt to persuade the court or the jury. (People v. Samayoa (1997) 15 Cal.4th 795, 842 [finding no prosecutorial misconduct where the record did not demonstrate the prosecution employed deceptive or reprehensible methods to persuade the jury]; see also People v. Mills (2010) 48 Cal.4th 158, 199 [prosecutor’s fleeting reference to weapons during questioning was not so intemperate or egregious as to constitute misconduct under state or federal law].)
Defendant’s reliance on People v. Ratliff (1987) 189 Cal.App.3d 696, 701, is misplaced. In that case, the court held certain foundational requirements were necessary before asking a witness about the failure to report exculpatory information. The evidentiary foundation required in People v. Ratliff has since been questioned. (People v. Tauber (1996) 49 Cal.App.4th 518, 525-526.) In any event, defendant does not challenge the introduction of evidence that defendant’s family failed to report exculpatory information, but instead challenges the prosecutor’s argument. Ratliff makes clear that a prosecutor may argue that the defense was made up based on evidence that exculpatory evidence had not been revealed. (People v. Ratliff, supra, at p. 702.)
In any event, even had we found prosecutorial misconduct, any misconduct would be harmless whether assessed under the federal constitutional standard of Chapman v. California (1967) 386 U.S. 18, 24 or the state standard of People v. Watson (1956) 46 Cal.2d 818, 836. Jerman was not present when defendant took the vehicle, and his testimony concerned only collateral matters. As we previously explained, information regarding Juan’s employment at Camino Real Chevrolet was unrelated to the critical issue at trial -- whether defendant used force or fear to take the vehicle from Lujambio. Additionally, defense counsel effectively rebutted the prosecutor’s suggestion that family members’ failure to initiate contact with the police supported and inference of recent fabrication. The brief reference to Jerman’s alleged failure to report exculpatory evidence to the police was thus harmless beyond a reasonable doubt.
Defense counsel began her argument as follows: “Some of you have personal knowledge... from a relative that when somebody is being charged with a crime, witnesses don’t all of a sudden start going to L.A.P.D. or Long Beach P.D. and start giving their version of events.” She continued arguing that for the prosecutor “to insinuate that my client’s family did not participate or did not go forward with the police department is completely absurd.” “[A] warrant was issued unbeknownst to him and unbeknownst to his upstanding working family. And so, it’s completely absurd that after a case is filed, then our witnesses or his family is then to go to the police. [¶] So, for [the prosecutor] to insinuate that I think is completely wrong, and I would ask you to think of common sense of how the system works.”
Defendant’s claimed prejudice has nothing to do with Jerman’s testimony and is based on a misreading of the record. Defendant argues that the prosecutor’s argument was prejudicial because “[t]he evidence of carjacking relied upon by the prosecution was Lujambio’s out-of-court statement that [defendant] used force when he took the car....” In fact, Lujambio testified in court that defendant placed his hand around her neck and pushed her from the driver’s side of the vehicle to the passenger’s side.
3. Alleged Instructional Error
Defendant argues that the trial court should have instructed the jury on lesser included offenses of unlawfully taking a vehicle and grand theft auto. A trial court has a sua sponte duty to instruct on lesser included offenses when a jury could conclude that the lesser but not the greater offense was committed. (People v. Breverman (1998) 19 Cal.4th 142, 153-155.) “A defendant may be convicted of an uncharged crime if, but only if, the uncharged crime is necessarily included in the charged crime. (§ 1159 [trier of fact may find defendant “guilty of any offense, the commission of which is necessarily included in that with which he is charged”].)” (People v. Reed (2006) 38 Cal.4th 1224, 1227.) The reasoning for this rule “‘“rests upon a constitutional basis: ‘Due process of law requires that an accused be advised of the charges against him in order that he may have a reasonable opportunity to prepare and present his defense and not be taken by surprise by evidence offered at his trial.’ [Citation.]”’” (Ibid.)
Because defendant cites cases describing both unlawfully taking a vehicle and grand theft, we evaluate whether either was a lesser included offense of carjacking. Defendant’s argument, however, principally focuses on grand theft.
In the context of determining appropriate jury instructions, there are two tests for assessing whether an offense is necessarily included in another offense -- the elements test and the accusatory pleading test. (People v. Reed, supra, 38 Cal.4th at pp. 1227-1228.) “Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former. Under the accusatory pleading test, if the facts actually alleged in the accusatory pleading include all of the elements of the lesser offense, the latter is necessarily included in the former.” (Ibid.)
Carjacking is the taking of a motor vehicle in the possession of another or from his or her person or immediate presence against his or her will and with the intent to either permanently or temporarily deprive the victim of possession of the vehicle, accomplished by force or fear. (§ 215.) As we explain, neither unlawfully taking a vehicle nor grand theft auto constitutes a lesser included offense of carjacking.
a. Unlawfully Taking a Vehicle
Vehicle Code section 10851, subdivision (a) defines theft and unlawful driving or taking of a vehicle: “(a) Any person who drives or takes a vehicle not his or her own, without the consent of the owner thereof, and with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle, whether with or without intent to steal the vehicle, or any person who is a party or an accessory to or an accomplice in the driving or unauthorized taking or stealing, is guilty of a public offense and, upon conviction thereof, shall be punished by imprisonment in a county jail for not more than one year or in the state prison or by a fine of not more than five thousand dollars ($5,000), or by both the fine and imprisonment.”
One element of unlawfully taking a vehicle is that the taking was without the consent of the vehicle’s owner. (Veh. Code, § 10851.) That is not an element of carjacking. (§ 215.) Accordingly, under the elements test, unlawfully taking a vehicle is not a lesser included offense of carjacking. (People v. Montoya (2004) 33 Cal.4th 1031, 1035 [under elements test unlawfully taking a vehicle is not a lesser included offense of carjacking].) Nor does the accusatory pleading allege that defendant took the vehicle without the consent of its owner. Thus, under the accusatory pleading test, unlawfully taking a vehicle is not a lesser included offense of carjacking. (Id. at p. 1036 [under accusatory pleading test, unlawfully taking vehicle not lesser included offense of carjacking where accusatory pleading does not allege taking was without consent of owner].)
b. Grand Theft Auto
Section 487, subdivision (c) provides that a grand theft occurs “[w]hen the property is taken from the person of another.” Section 487, subdivision (d) includes an automobile as a vehicle. Grand theft of a vehicle requires the specific intent to permanently deprive a person of the property. (People v. Abilez (2007) 41 Cal.4th 472, 510; People v. Marquez (2007) 152 Cal.App.4th 1064, 1067.)
“Carjacking requires two elements that are not required for theft: that the vehicle be taken from the possession or immediate presence of another, and that the taking be ‘accomplished by means of force or fear.’” (People v. Ortega (1998) 19 Cal.4th 686, 693, overruled on another ground in People v. Reed, supra, 38 Cal.4th at p. 1229.) “Theft requires an element -- the specific intent to permanently deprive a person of property -- that is not required for carjacking.” (People v. Ortega, supra, at p. 693.) Thus, under the elements test, theft is not a lesser included offense of carjacking because a carjacking may be committed by temporarily depriving a person of the vehicle. (People v. Marquez, supra, 152 Cal.App.4th at p. 1068.)
Under the accusatory pleading test, grand theft auto was not a lesser included offense of carjacking. First, it appears the trial court amended the accusatory pleading to allege that defendant intended to “temporarily or permanently” deprive the victim of the vehicle. The prosecutor requested such amendment, the court agreed that the amendment was consistent with the relevant statute, and defense counsel did not oppose it. Thus, the carjacking could have been committed without the intent to permanently deprive Lujambio of the vehicle, a factor necessary for grand theft. Even if the information had not been amended, on virtually identical facts, another court has held that grand theft is not a lesser included offense of carjacking under the accusatory pleading test where the information alleged a defendant intended to “permanently and temporarily” deprive the victim of a vehicle. (People v. Marquez, supra, 152 Cal.App.4th at p. 1064.) “Because the conjunctive phrase ‘permanently and temporarily’ permitted proof of an intent either to permanently or temporarily deprive the victim of possession” carjacking could be committed without committing a grand theft auto. (Id. at p. 1068, italics omitted.) Although Marquez involved an attempted carjacking, the reasoning is equally applicable here. Defendant has not shown that either unlawfully taking a vehicle or grand theft auto is a lesser included offense of carjacking.
DISPOSITION
The judgment is affirmed.
We concur: EPSTEIN, P. J., WILLHITE, J.
Defendant also relies on People v. Bolton (1979) 23 Cal.3d 208, 212, in which the high court considered a prosecutor’s argument hinting that but for the rules of evidence, the prosecutor could have shown defendant had prior convictions. (Ibid.) The court held “[t]here is no doubt that the prosecutor’s statement constituted improper argument, for he was attempting to smuggle in by inference claims that could not be argued openly and legally.” (Ibid.) Here, there was no similar attempt to “smuggle in by inference” evidence that could not be admitted.