Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCR-478301.
Haerle, Acting P.J.
I. INTRODUCTION
After a jury trial, appellant was convicted of one count of perjury involving his execution of a Department of Motor Vehicles (DMV) form asserting that he had lost a vehicle he had owned, when in fact he had sold the vehicle and it had subsequently been stolen from a remote purchaser. He appeals and, citing People v. Wende (1979)25 Cal.3d 436, asks this court to examine the record and determine if there are any issues deserving of further briefing and then consideration by this court. We have done so, find no such issues, and hence affirm appellant’s conviction.
II. FACTUAL AND PROCEDURAL BACKGROUND
The rather complex factual situation involved here revolves around a 2000 GMC Yukon Denali (the vehicle) which appellant owned as of January 2004. In that month, appellant sold the vehicle to Santa Rosa Chevrolet for $19,500, and in the process completed all the necessary paper work, including conveying his title to the vehicle to the dealership. The vehicle then passed through the hands of several other dealerships, ending up at Capitol Honda in San Jose. On April 4, 2004, that dealership sold the vehicle to a woman identifying herself, falsely as it turned out, as Tam Pham. The real Tam Pham had apparently been the victim of an identity theft, which she had reported and a note of which had been made on her credit reports. Notwithstanding this fact, Capitol Honda permitted the buyer to take possession of the vehicle on the basis of her promise that she would pay for it a week later.
When no payment was forthcoming, Capitol Honda applied to Chase Manhattan Bank for a loan on behalf of the alleged purchaser, Pham. Remarkably, especially considering the warning on the real Pham’s credit reports, the bank approved the loan, sent the full sales price to Capitol Honda, and thereupon became a lienholder on the vehicle.
On April 26, 2004, a Santa Clara Deputy Sheriff observed the vehicle being driven in San Jose with an expired registration tag, and pulled it over. The driver (not the false Ms. Pham––she was never found) had no driver’s license, so he was cited and the vehicle towed and impounded by a commercial tow service.
A day later, the Santa Clara County sheriff’s department sent appellant a notice advising him that the vehicle had been impounded; that notice showed appellant as still being the registered owner of the vehicle. Appellant apparently assumed that this was a clerical error and did nothing.
However, on June 6, 2004, appellant receive a notice from the DMV that the San Jose towing company had applied for a lien on the vehicle to cover its towing and storage charges. At around the same time, he also received a notice from the DMV of his alleged “delinquent renewal” of the registration of the vehicle. That notice advised him that his registration had expired on April 18, 2004, and demanded a late registration fee of $267. As a result of these several notices, on June 7, 2004, appellant went to the Santa Rosa DMV office where he learned that he was still listed on the DMV’s computer system as the registered owner of the vehicle. He then filled out the form that was and is critical to this case, a DMV application for duplicate title. In it, he checked off the box labeled “Lost” in the section of the form asking what had happened to his original title, and signed the application under penalty of perjury. However, because of the towing company’s lien against the vehicle, the DMV clerk was unable to process the application without the vehicle being physically present at that office.
The next day, June 8, 2004, appellant paid $150 to the Santa Clara County Sheriff’s Department, and additional sums to the San Jose towing company to obtain release of the vehicle. He then drove the vehicle to the Santa Rosa DMV office, where its staff verified that it was the same vehicle as identified on the duplicate-title application appellant had signed and verified the preceding day. That office then processed that application and issued appellant a new registration card for the vehicle. On June 20, 2004, the DMV issued the duplicate title form and mailed it to appellant.
About six months later, specifically on December 14, 2004, appellant again sold the vehicle, this time to McConnell Chevrolet-Oldsmobile, Inc. (McConnell), for $12,500, signing the duplicate title over to it. On January 11, 2005, that dealership sold the vehicle at an auction, through a service known as Brasher’s Sacramento Auto Auction (Brasher’s), to yet another dealer, Sacramento Import, which in turn sold the vehicle to a customer on February 21, 2005.
The record, sadly, reveals nothing more about the fate of the vehicle. But it does about the fate of appellant. In early April of 2005, Brasher’s notified its vendor, McConnell, that there was a problem with the title to the vehicle. A McConnell staff person investigated and discovered that Chase Manhattan Bank held a lien on the vehicle. On May 26, 2005, McConnell filed a complaint regarding the duplicate registration with the DMV; it conducted an investigation, which revealed, of course, the two chains of title to the vehicle.
That investigation was referred to the Sonoma County District Attorney’s office which recused itself from the case because of an alleged conflict of interest, turning it over to the Marin County District Attorney. On August 21, 2006, that office filed an information in Sonoma County Superior Court charging appellant with one count of perjury (Pen. Code § 118, subd. (a)) and four counts of vehicle theft. (Veh. Code, § 10851, subd. (a), Pen. Code, §§ 487, subd. (d)(1), 496d, subd. (a), and 487, subd. (a).)
Appellant was a former Sonoma County deputy sheriff and, as such, apparently also a former superior court bailiff.
Jury trial began on June 26, 2007. At the close of trial on July 5, 2007, appellant’s trial counsel moved for a judgment of acquittal of all the charges against appellant under Penal Code section 1118.1. The trial court (the Honorable Elliot Daum) granted the motion as to the four vehicle-theft counts, but denied it as to the perjury count, leaving that charge as the only remaining one for the jury to consider. It did and, after a few hours of deliberation on July 11, 2007, found appellant guilty on that count.
On August 20, 2007, the court suspended imposition of sentence, admitted appellant to probation for a period of two years on various conditions including a requirement of 200 hours of community service. No prison time was imposed.
Appellant filed a timely notice of appeal on September 21, 2007, and his Wende brief in April 2008.
Earlier, on February 19, 2008, appellant’s appellate counsel filed a substantive brief raising––albeit raising only––the issue of a particular probation condition imposed by the court. On April 15, 2008, appellant’s trial counsel filed a motion in the trial court to remove that condition; the prosecution stipulated to that motion, and the trial court granted it. Appellate counsel then substituted appellant’s Wende brief a few days later.
III. DISCUSSION
As noted above, although charged on five counts, appellant was convicted on only one, the perjury count involving his June 7, 2004, act of signing, under penalty of perjury, a one-page DMV form entitled “Application for Duplicate Title” in which he claimed, by checking the “Lost” box, that: “The Certificate of Title issued for this vehicle/vessel is: Lost.” Immediately below that box, and immediately above appellant’s signature, is the standard “under penalty of perjury” declaration.
At trial, after the court had dismissed all of the vehicle theft counts, leaving only the perjury count, appellant called no witnesses. The argument presented to the jury by trial defense counsel regarding the perjury count was, in summary, that because no one else ever claimed “that they had a legal right to the vehicle” and “[e]veryone is telling him he has a right to it,” it was “a reasonable interpretation” of the DMV form appellant signed for him to assert that the original registration had been “lost.”
The prosecutor responded by arguing that the case was about whether appellant had “knowingly lied on that document,” and that the record clearly established that he had.
The jury, which as noted deliberated only a few hours, apparently had no difficulty agreeing with the prosecution’s interpretation of the evidence. And we, in turn, agree that there was substantial evidence, namely appellant’s June 7, 2004, execution of the DMV form, justifying his conviction on the perjury count.
Appellant was ably represented at trial by experienced Santa Rosa trial counsel. As noted, that counsel secured the dismissal of all four of the vehicle theft counts of which appellant was originally charged, and otherwise did an able job of representing him at trial. Finally, the instructions given by the court––which, of course, pertained only to the perjury count––were entirely appropriate.
In short, we find no issues requiring further briefing or consideration by this court.
IV. DISPOSITION
The judgment of conviction is affirmed.
We concur: Lambden, J., Richman, J.