Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. YA067597, Alan B. Honeycutt, Judge.
James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec and Ellen Birnbaum Kehr, Deputy Attorneys General, for Plaintiff and Respondent.
JACKSON, J.
INTRODUCTION
Defendant Patricia Carolyn Harris appeals from the judgment entered after a jury found her guilty of possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)) and unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a)) and also found true the allegations that defendant suffered three prior felony convictions. (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, 667.5, subd. (b).)
On appeal, defendant does not challenge her conviction for possessing a controlled substance. She contends only that instructional error warrants the reversal of her conviction for violating Vehicle Code section 10851, subdivision (a). We affirm.
FACTS
A. Prosecution’s Case
On February 1, 2007, defendant rented a Mercedes C230 from Midway Car Rental (Midway) located at 1800 South Sepulveda Boulevard in Los Angeles. Customer Service Representative Roger Fitch helped defendant with the transaction. Under the terms of her rental agreement, defendant was scheduled to return the Mercedes on February 8. Branch Manager Cynthia Tejeda assisted in the transaction, obtaining a $1,200 credit card advance charge for the rental.
On February 8, defendant failed to return the Mercedes. She did not have Midway’s consent to use the car after that date.
Multiple attempts to contact defendant by phone and to charge defendant’s credit card for the additional rental were unsuccessful. Midway sent defendant a letter demanding that she return the car and warning her that, if she failed to do so, the car would be reported stolen. Midway reported the Mercedes stolen on February 13.
On March 2, 2007, Gardena Police Officer Yvette Evans observed a black Mercedes C230 parked in a remote section of a Target parking lot on Redondo Beach Boulevard. Officer Evans ran the car’s license plate and discovered that it had been reported stolen. The officer arrested defendant, who was sitting inside the car crying. An inventory search of the car revealed two pieces of rock cocaine and a makeshift cocaine pipe.
Defendant told Officer Evans that she had rented the car and that the rental agreement was in her purse. The officer found both the rental agreement and the letter demanding that the car be returned inside defendant’s purse.
The Mercedes was returned to Midway on March 5, 2007. The car was dirty and had been damaged.
B. Defense
Bobby Singleton (Singleton) and defendant met in 2003. They became good friends. Singleton considered defendant a “mother figure.”
Singleton permitted defendant, who moved to Los Angeles and was staying with a friend, to use the home address he shared with his grandmother and his sister as her mailing address. Defendant used Singleton’s address on her car rental agreements.
In December 2006, when defendant inquired about renting a car, Singleton referred her to Midway. Defendant rented a Mercedes from Midway in December 2006 and again in February 2007.
On February 8, 2007, Singleton received a telephone call from defendant, after which Singleton called Midway to inquire if defendant could extend her car rental period. Singleton spoke to “Roger,” who advised Singleton that extending the rental period would not be a problem. Roger told Singleton to have defendant call in as soon as possible. Singleton did not hear any telephone conversation between defendant and Midway.
Emma Rivers, Singleton’s grandmother, met defendant through Singleton. Rivers gave defendant permission to use her home address as her mailing address. Rivers signed for the demand letter Midway sent defendant.
DISCUSSION
A violation of Vehicle Code section 10851, subdivision (a), occurs when a person “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 with or without the intent to steal the vehicle.” (People v. Llamas (1997) 51 Cal.App.4th 1729, 1736.) The trial court instructed the jury in accordance with CALCRIM No. 1820 regarding the elements of this offense as follows: “The defendant is charged in Count 2 with unlawfully taking or driving a vehicle in violation of Vehicle Code section 10851. [¶] To prove that the defendant is guilty of this crime, the People must prove that, one, the defendant took or drove someone else’s vehicle without the owner’s consent, and two, when the defendant did so, she intended to deprive the owner of possession or ownership of the vehicle for any period of time. [¶] Even if you conclude that the owner had allowed the defendant or someone else to take or drive the vehicle before, you may not conclude that the owner consented to the driving or taking on March 2nd, 2007, based on that previous consent alone. [¶] A taking requires the vehicle be moved for any distance no matter how small.”
Defendant has no qualms with the instruction up to this point. What defendant does take issue with is the following additional language, which the trial court added to the standard CALCRIM No. 1820 instruction: “If the People have proved beyond a reasonable doubt the defendant leased or rented a vehicle and willfully and intentionally failed to return the vehicle to its owner within five days after the lease or rental agreement expired, you may but are not required to conclude, that the defendant embezzled the vehicle.”
Although defendant claims to have objected to this additional language, she commented only that “the addition of anything to the charge in the information would be overcharging.” Citing People v. Young (2005) 34 Cal.4th 1149, 1211, the People concede that defendant may challenge the instruction on appeal even though she did not object on the ground she now urges, in that the court has a duty to charge the jury correctly.
The court also instructed the jury that “[e]mbezzlement is the fraudulent appropriation of property by a person to whom it has been entrusted.” It did not provide the jury with the elements of embezzlement.
This language has its genesis in Vehicle Code section 10855 which provides that “[w]henever any person who has leased or rented a vehicle willfully and intentionally fails to return the vehicle to its owner within five days after the lease or rental agreement has expired, that person shall be presumed to have embezzled the vehicle.” In Carella v. California (1989) 491 U.S. 263 [109 S.Ct. 2419, 105 L.Ed.2d 218], however, the United States Supreme Court held that an instruction based upon section 10855 telling the jury “that a person ‘shall be presumed to have embezzled’ a vehicle if it is not returned within 5 days of the expiration of the rental agreement” violated the Fourteenth Amendment. (Carella, supra, at pp. 265-266.)
The nation’s high court observed that “[t]he Due Process Clause of the Fourteenth Amendment denies States the power to deprive the accused of liberty unless the prosecution proves beyond a reasonable doubt every element of the charged offense. [Citation.] Jury instructions relieving States of this burden violate a defendant’s due process rights. [Citations.] Such directions subvert the presumption of innocence accorded to accused persons and also invade the truth-finding task assigned solely to juries in criminal cases.” (Carella v. California, supra, 491 U.S. at p. 265.)
Because the presumption of embezzlement in Carella was phrased as an “explicit and unqualified” command to find the presumed fact if the predicate facts were established, and no other jury instruction explained that the presumption of embezzlement was merely permissive, the instruction violated the Fourteenth Amendment. The court concluded that the mandatory instruction “directly foreclosed independent jury consideration” of whether the proved facts established elements of the crime. The court concluded that the instruction “relieved the State of its burden of proof..., namely, proving by evidence every essential element of Carella’s crime beyond a reasonable doubt.” (Carella v. California, supra, 491 U.S. at p. 266.)
In light of the Carella decision, the trial court in this case did not use any mandatory language when formulating the presumption of embezzlement. Rather, the court used permissive language in the challenged portion of the instruction. The language allowed, but did not require, the jury to conclude that defendant embezzled the Mercedes if certain predicate facts were proven beyond a reasonable doubt.
Defendant maintains that the presumption of embezzlement instruction should not have been given in the first instance because she was not charged with grand theft of an automobile by embezzlement. Stated otherwise, defendant’s position is that a presumption of embezzlement instruction should not be given when the defendant has been charged only with a violation of Vehicle Code section 10851. We agree.
In this case, the People did not charge defendant with theft of the Mercedes. Embezzlement is a form of theft. (Pen. Code, § 490a [“Wherever any law or statute of this state refers to or mentions larceny, embezzlement, or stealing, said law or statute shall hereafter be read and interpreted as if the word ‘theft’ were substituted therefor.”]; People v. Love (2008) 166 Cal.App.4th 1292, 1300; People v. Stanfill (1999) 76 Cal.App.4th 1137, 1143.) The court therefore should not have instructed the jury with the presumption embezzlement. (Cf. People v. Starkey (1965) 234 Cal.App.2d 822, 827-829.)
Defendant next contends that the presumption relieved the People of its burden to prove beyond a reasonable doubt that she had the specific intent to steal the Mercedes. We disagree.
Unlike the mandatory presumption in Carella that “directly foreclosed independent jury consideration of whether the facts proved established certain elements of the offense” (Carella v. California, supra, 491 U.S. at p. 266), the presumption given in this case was permissive. It allowed but did not require the jury “to infer the elemental fact from proof by the prosecutor of the basic one and... place[d] no burden of any kind on the defendant.” (People v. McCall (2004) 32 Cal.4th 175, 182, quoting Ulster County Court v. Allen (1979) 442 U.S. 140, 157.)
More fundamentally, the trial court properly instructed the jury on the elements necessary to prove a violation of Vehicle Code section 10851. Defendant does not contend otherwise. In addition, the jury was informed that the offense of unlawful taking or driving a vehicle requires a specific intent and that, “[t]o find a person guilty of this crime, that person must not only intentionally commit the prohibited act, but must do so with a specific intent.” The specific intent required in this case was the intent “to deprive the owner of possession or ownership of the vehicle for any period of time.” Intent to steal simply is not an element of the crime, as defendant suggests.
Even if the jury elected to utilize the presumption, it first had to conclude beyond a reasonable doubt that defendant leased or rented the Mercedes and then willfully and intentionally failed to return it to Midway within five days after the lease or rental agreement expired. These findings would reflect the jury’s determination that defendant made a conscious decision to keep the Mercedes more than five days after her rental period expired and thereby had the intent to deprive Midway of its ability to rent the vehicle to other customers. All the People were required to demonstrate was that defendant drove the Mercedes without Midway’s consent and did so with the intent to deprive Midway of possession or ownership of the Mercedes for any period of time. The facts supporting the findings necessary to support use of the presumption also proved the elements necessary to establish a violation of section 10851. The court’s erroneous instruction, therefore, unquestionably was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705].)
DISPOSITION
The judgment is affirmed.
We concur: WOODS, Acting P. J., ZELON, J.