Opinion
C085732
06-16-2020
THE PEOPLE, Plaintiff and Respondent, v. JAMES ALLEN DUNN, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. P16CRF0132)
Defendant James Allen Dunn challenges his felony conviction under Vehicle Code section 10851, arguing the People failed to establish his crime was a felony pursuant to Proposition 47 and Penal Code section 490.2. He also contends the trial court erred in admitting evidence of prior acts of domestic violence. (Evid. Code, § 1109.) We will reverse the conviction for unlawful taking or driving of a vehicle, vacate the sentence, and remand the matter to the trial court for further proceedings. In all other respects, we will affirm the judgment.
Undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
A. March 5, 2016 Incident
In February 2016, defendant and the victim began dating and living together "off and on." On March 5, the victim agreed to drive her truck and help defendant get gas for his friends' car, which had broken down nearby. Defendant and the victim met up with his friends in the parking lot of a nearby bar.
Defendant became upset, so he and the victim left. As the victim drove, the two began arguing. Defendant yelled at the victim and told her he threw her cell phone out the car window. The victim agreed to let defendant drive, but she asked him to stop because he began driving erratically. In response, defendant hit her in the jaw and face, causing a black eye and a sore jaw. Photos taken by police of the victim's injuries were shown to the jury during trial. Defendant refused the victim's repeated requests to be let out of the truck.
After hitting the victim, defendant called an unidentified person and said he had done "something bad." Defendant ended the call and told the victim the other person said he should kill her. Fearing for her safety, the victim jumped out of the truck and hid in the bushes. Once she was sure defendant had left, the victim ran to a nearby house for help. The good Samaritans retrieved the victim's phone from the end of their driveway and took her to the hospital, but did not call police. The victim testified at trial that she was afraid to get the police involved because defendant had previously threatened that "people that call the cops don't do well." The victim eventually spoke with police at the hospital.
The next day, defendant helped the victim and her children retrieve her truck.
At trial, defendant testified that, after arriving at the bar, his friend Jason drove off with the victim in her truck. He left in a different car with two other friends and took them to his home to "party[]." Defendant did not hear from the victim or Jason until the next morning, when he helped the victim find her truck based on instructions from Jason. Defendant denied grabbing or hitting the victim.
B. April 5, 2016 Incident
At trial, the victim testified that defendant spent the night on April 4, 2016. The next morning, while he was packing his things, the two began arguing. Defendant grew "angry," lunged at the victim, and grabbed her by the neck. The victim tried to fight back, but she lost her balance and fell onto a lamp. The victim pretended to call 911; defendant grew "very angry," grabbed the phone out of her hand and left.
The next day, defendant arrived at the victim's house and pounded on the door, demanding to be let in. Police were called.
C. Evidence and Jury Instructions Regarding Prior Uncharged Act of Domestic Violence
During trial, a police officer testified regarding a January 2007 domestic violence incident involving defendant and a woman named H.S. The police found H.S. with "a lot of blood on her face." Defendant told police that he was driving when he and H.S. got into an argument over an open window. They began hitting each other, so defendant pushed H.S. out of the car while it was still moving. He drove around for a bit but then returned, since it was her car. Defendant was convicted of inflicting corporal injury on a dating partner. (§ 273.5.)
During trial, the jury was instructed to consider the evidence of the uncharged domestic violence only if the prosecution had proved that defendant committed the act "by a preponderance of the evidence." If the jury decided that the defendant committed the uncharged domestic violence, "you may, but are not required to, conclude from that evidence that the Defendant was disposed or inclined to commit domestic violence and, based on that decision, also conclude that the Defendant was likely to commit [inflicting corporal injury on a cohabitant and battery]." The conclusion was "only one factor to consider, along with all of the other evidence" and was "not sufficient by itself to prove that the Defendant is guilty of [the charged domestic violence crimes]."
D. Jury Instructions and Closing Argument Regarding Unlawful Taking or Driving of a Vehicle
The jury was instructed regarding count 3 (Veh. Code, § 10851) per former CALCRIM No. 1820 as follows: "To prove that the Defendant is guilty of [the crime of unlawfully taking or driving a vehicle], the People must prove the following: [¶] First, that the Defendant took or drove someone else's vehicle without the owner's consent; [¶] Second, 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."
During closing argument, the prosecutor referred to count 3 as "the vehicle theft." Still, similar to the instruction given, she argued that defendant "intended to deprive [the victim] of possession or ownership of her [truck] for any period of time," "at least for that night." The prosecutor also reminded the jury that, "[a]s long as it is for any period of time, that's sufficient."
E. Jury Verdict, Sentencing, and Appeal
In August 2017, with respect to the March 2016 incident, a jury found defendant guilty of inflicting corporal injury on a dating partner (§ 273.5; count 1), simple false imprisonment (§ 236; count 2), and unlawful taking or driving of a vehicle (Veh. Code, § 10851, subd. (a); count 3). With respect to the April 2016 incident, the jury found defendant guilty of battery (§ 243, subd. (e)(1); count 4) and dissuading a witness from reporting a crime (§ 136.1, subd. (b)(1); count 5). In separate proceedings, the trial court found a prior prison term enhancement true. (§ 667.5, subd. (b).)
In October 2017, the trial court sentenced defendant to state prison for an aggregate term of five years eight months.
DISCUSSION
I
Proposition 47, which became effective in November 2014, "makes certain drug- and theft-related offenses misdemeanors, unless the offenses were committed by certain ineligible defendants. These offenses had previously been designated as either felonies or wobblers (crimes that can be punished as either felonies or misdemeanors)." (People v. Rivera (2015) 233 Cal.App.4th 1085, 1091.) As relevant to this case, Proposition 47 added section 490.2: "Notwithstanding Section 487 or any other provision of law defining grand theft, obtaining any property by theft where the value of the money, labor, real or personal property taken does not exceed nine hundred fifty dollars ($950) shall be considered petty theft and shall be punished as a misdemeanor . . . ." (§ 490.2, subd. (a).)
People v. Valencia (2017) 3 Cal.5th 347, 368. --------
Vehicle Code section 10851 proscribes theft and nontheft activity: it "punishes not only taking a vehicle, but also driving it without the owner's consent, 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.' " (People v. Page (2017) 3 Cal.5th 1175, 1182 (Page).) To be guilty of the theft form of Vehicle Code section 10851, the defendant must have the "intent to permanently deprive the owner of its possession." (Ibid.) Our Supreme Court has made clear that section 490.2 "covers the theft form of the Vehicle Code section 10851 offense." (Page, at p. 1183.) In other words, " 'after the passage of Proposition 47, an offender who obtains a car valued at less than $950 by theft must be charged with petty theft and may not be charged as a felon under any other criminal provision.' " (Ibid., italics added.)
Defendant contends his conviction on count 3 must be reduced to a misdemeanor. Based on the prosecutor's referring to count 3 as "vehicle theft" during closing argument, defendant argues the prosecution relied on the theft form of Vehicle Code section 10851 but failed to present any evidence the victim's truck was worth more than $950, as required under Proposition 47. The People argue the jury was instructed on both the theft and nontheft forms of Vehicle Code section 10851, and any error was harmless because there was no evidence defendant intended to permanently deprive the victim of her truck. In the alternative, the People contend the matter should be remanded for retrial at the People's election. Citing In re D.N. (2018) 19 Cal.App.5th 898, defendant argues double jeopardy protections prohibit a retrial on this matter.
In People v. Gutierrez (2018) 20 Cal.App.5th 847 (Gutierrez), the court concluded the defendant was not properly convicted of a felony theft violation of Vehicle Code section 10851. During trial, the People failed to prove the vehicle he took was worth more than $950. (Gutierrez, at p. 856.) In addition, the jury instructions "failed to adequately distinguish among, and separately define the elements for, each of the ways in which [Vehicle code] section 10851 can be violated." (Ibid.) Although whether the vehicle was worth more than $950 and whether the defendant intended to permanently deprive the victim of the vehicle are now required elements of a theft-based violation of Vehicle code section 10851, neither intent to steal nor the value of the vehicle is an element of a felony offense of posttheft driving or joyriding. (Ibid.) However, the record was unclear whether the defendant was convicted under a legally valid nontheft theory or a legally invalid theory of vehicle theft that did not include as an element the value of the stolen car. (Id. at p. 857.) As such, the court reversed the felony conviction for unlawful driving and remanded the matter to allow the People to either accept a reduction of the conviction to a misdemeanor or to retry the offense as a felony with appropriate instructions. (Ibid., see also People v. Chiu (2014) 59 Cal.4th 155, 168 [same where jury may have based first degree murder conviction on an improper legal theory].)
Although similar issues were raised in In re D.N., unlike Gutierrez, the In re D.N. court reasoned the case involved sufficiency of the evidence and concluded any retrial was barred under principles of double jeopardy. (In re D.N., supra, 19 Cal.App.5th at pp. 903-904.) We find Gutierrez's analysis more persuasive, especially since Page was not decided until after defendant's trial.
Just as in Gutierrez, supra, 20 Cal.App.5th 847, nothing in the record indicates whether the jury found defendant guilty of vehicle theft, joyriding, or posttheft driving. The jury instructions did not separately define the elements of each of these crimes, and the prosecutor did not make clear during closing argument whether the People were arguing that defendant intended to permanently deprive the victim of her truck when he took it. Moreover, this is not a case where the victim's truck was voluntarily returned to her within a few hours. Although defendant eventually helped the victim and her children recover her truck, it was not until the next day. As such, we will apply the disposition from Gutierrez.
II
Defendant argues the trial court erred in admitting evidence of the 2007 incident with H.S. and the April 5, 2016 incident with the victim. (Evid. Code, §§ 1109, 352.) We find his contentions without merit.
A. Evidence Regarding the 2007 Incident
Under Evidence Code section 1101, subdivision (a), unless an exception applies, evidence of a defendant's character, including evidence of specific instances of past conduct, is inadmissible when offered to prove the defendant's conduct on a specified occasion. Evidence Code section 1109, subdivision (a)(1) is one such exception: with certain exceptions not relevant here, "in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant's commission of other domestic violence is not made inadmissible by [Evidence Code section 1101] if the evidence is not inadmissible pursuant to [Evidence Code section 352]."
Under Evidence Code section 352, "[t]he court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." We review relevancy and Evidence Code section 352 rulings for abuse of discretion. (People v. Branch (2001) 91 Cal.App.4th 274, 282; see also People v. Brown (2000) 77 Cal.App.4th 1324, 1337.)
" ' " 'The principal factor affecting the probative value of an uncharged act is its similarity to the charged offense.' " ' [Citations.] 'Thus, the statute reflects the legislative judgment that in domestic violence cases, as in sex crimes, similar prior offenses are "uniquely probative" of guilt in a later accusation. [Citation.] Indeed, proponents of the bill that became [Evidence Code] section 1109 argued for admissibility of such evidence because of the "typically repetitive nature" of domestic violence.' [Citation.]" (People v. Kerley (2018) 23 Cal.App.5th 513, 536.)
"Other factors affecting the probative value include the extent to which the source of the evidence is independent of the charged offense, and the amount of time between uncharged acts and the charged offense. The factors affecting the prejudicial effect of uncharged acts include whether the uncharged acts resulted in criminal convictions and whether the evidence of uncharged acts is stronger or more inflammatory than the evidence of the charged offenses." (People v. Zepeda (2001) 87 Cal.App.4th 1183, 1211.) The statute specifies that evidence of acts occurring more than 10 years before the charged act are inadmissible. (Evid. Code, § 1109, subd. (e).)
According to defendant, the 2007 incident was stale because it occurred in January 2007, more than nine years before the March 2016 incident at issue in the case. We disagree because the evidence of the 2007 incident was highly probative to the issue of whether he committed domestic violence in this case. The 2007 incident was within the 10-year time frame specified by the statute and involved defendant similarly fighting with a romantic partner in her car and then driving off after pushing her out of the car. The cumulative nature of defendant's repetitive domestic violence was particularly probative. (See People v. Cabrera (2007) 152 Cal.App.4th 695, 706 [the probative value of two prior acts of domestic violence against two different women was "principally in its cumulative nature," and "far outweighed any potential prejudice"].) There is no indication that the prior acts were more inflammatory than the charged offense, which weighs in favor of admission. That defendant was convicted of the crime also weighs in favor of admission.
Moreover, presentation of the evidence did not require an undue consumption of time, and the jury was not likely misled or confused, especially since the jury was instructed that it was to consider the evidence only if the prosecution had proved by a preponderance of the evidence that defendant committed the uncharged acts. If the jury decided that defendant committed the uncharged domestic violence, it could but was not required to conclude that defendant was "disposed or inclined to commit domestic violence," and also "likely to commit [the charged domestic violence crimes]." This was "only one factor to consider" and "not sufficient by itself to prove that the Defendant is guilty of [the charged domestic violence crimes]." On this record, we find no error.
B. Evidence Regarding the April 5, 2016 Incident
Defendant challenges the admission of the testimony regarding the April 5, 2016 incident involving the victim, arguing it was introduced merely to bolster the victim's credibility. Given that defendant was charged (and convicted) in counts 4 and 5 (§§ 243, subd. (e)(1), 136.1, subd. (b)(1)) with respect to this incident, we conclude the evidence was properly admitted.
DISPOSITION
The conviction for unlawful taking or driving of a vehicle is reversed and the sentence is vacated in its entirety. In all other respect, the judgment is affirmed. The matter is remanded to the trial court, where the People must file an election within 30 days of the issuance of our remittitur either to retry defendant for felony unlawful taking or driving, or to accept a reduction of this count to a misdemeanor, after which the trial court may resentence defendant accordingly.
/s/_________
BLEASE, Acting P. J. We concur: /s/_________
HOCH, J. /s/_________
RENNER, J.