Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, M. Marc Kelly, Judge. Super. Ct. No. 05CF4074
Sachi Wilson, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Erika Hiramatsu and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MOORE, J.
Defendant Oscar Tlatelpa appeals after his conviction on two counts related to the attempted theft of an automobile. He argues there was insufficient evidence that the victim owned the car, and errors in jury instructions and the admissibility of a statement he made shortly after his arrest. He also argues sentencing error. We find that none of these contentions have merit and affirm.
I
FACTS
On December 24, 2005, Santa Ana resident Maribel Duarte noticed two Hispanic males across the street from her home. One of them, later identified as defendant, appeared to be trying to open the driver’s side door of a red car with a knife. She saw a second man several yards away, speaking to the first man. Both men were in the mid-20’s and had bald heads. Defendant then entered the car and reached below the steering wheel. Duarte called the police about the apparent break-in.
The Santa Ana Police arrived, and Officer Jose Mendoza saw defendant in the driver’s seat of the car, which he identified as a red Nissan Sentra, apparently trying to start the vehicle. While he waited for additional officers to arrive, Mendoza watched as defendant attempted to force a key into the car’s ignition.
Defendant saw Mendoza through the rearview mirror, and he exited the vehicle and began walking away. Because defendant had his hands underneath his waistband and was wearing baggy clothing, Mendoza believed he might be reaching for a weapon or hiding something. Mendoza drew his weapon and ordered defendant to stop. Defendant did not comply, but ran through an apartment complex and attempted to climb a fence. Mendoza eventually apprehended defendant.
During a patdown search, Mendoza found two keys in defendant’s pocket. One of the keys was a Honda key that appeared to be filed down. Such keys are commonly used in auto thefts because they facilitate starting older vehicles. Defendant spontaneously told Mendoza that he was not aware those keys were in his pocket.
Thereafter, Patricia Coronel approached Mendoza and told him she owned the Sentra. Coronel did not have proof of ownership, but Mendoza felt that Coronel’s actions indicated she owned the car. The car was not reported stolen after the incident.
Coronel testified at trial that she, her husband, and her brother had bought the Sentra from her stepfather, Carlos Martinez, a few months prior. Martinez had bought the car from Francisco Vargas. Coronel had not yet transferred the registration into her name for a number of reasons, including her own lack of a driver’s license and the fact that she did not yet have tags for the car. Coronel admitted to a prior conviction for car theft, in 1999. Coronel testified that in February 2006, the Sentra broke down and she sold it to a mechanic.
After defendant’s arrest, he was charged with second degree vehicle burglary (Pen. Code, §§ 459, 460, subd. (b)) and attempted unlawful taking of a vehicle (§ 664 and Veh. Code, 10851, subd. (a)). The information also alleged a strike prior (§ 667, subds. (d) and (e)(1), § 1170.12, subds. (b) and (c)(1)) and a prison prior for the same conviction (§ 667.5, subd. (b)). Defendant moved to bifurcate the trial on the strike prior and the prison prior, then waived trial on the priors.
Subsequent statutory references are to the Penal Code unless otherwise indicated.
The jury found defendant guilty of both counts. Defendant then admitted the truth of the allegations regarding the priors. The court sentenced defendant to the upper term of three years on the conviction for second degree vehicle burglary, which was doubled to six years (§ 667, subds. (d) and (e)(1).) He also received one year for the prison prior, for a total sentence of seven years. The court stayed the sentence on the attempted vehicle theft conviction pursuant to section 654.
II
DISCUSSION
Sufficient Evidence of Ownership
Defendant argues that insufficient evidence was presented at trial to establish the lack of the owner’s consent for his presence in the car, an element of either of the charges against him. “In assessing a claim of insufficiency of evidence, the reviewing court’s task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence — that is, evidence that is reasonable, credible, and of solid value — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.]” (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) “Reversal on this ground is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.)
Specifically, defendant claims that Coronel’s testimony regarding her ownership of the Nissan was equivocal and ambiguous. Further, she failed to present any documentation supporting her claim as owner. This is true. But we reject defendant’s argument that in the absence of documentation, the prosecution was required to prove that Coronel was “qualified to be the registered owner” of the car. That standard has been applied in civil cases where the purported owner was a litigant, not in criminal cases where the owner was the victim. (See, e.g., Gates v. Levers (1951) 108 Cal.App.2d 131, 133.) We see no rationale or authority for diverting from the general rules regarding substantial evidence in criminal cases. We therefore review the evidence to determine whether there was sufficient evidence from which the jury could conclude that Coronel was the owner of the car.
The court was faced with similar facts in People v. Clifton (1985) 171 Cal.App.3d 195 (Clifton). “[D]efendant essentially contends . . . the People failed to establish Guerrero [the victim] was the owner of the vehicle. It was not registered in Guerrero’s name, his name did not appear on the pink slip, nor had he submitted a notice of transfer to the DMV. Therefore, Guerrero was not an ‘owner’ within the meaning of Vehicle Code section 460, and defendant Clifton could not be convicted absent sufficient indicia of ownership in Guerrero. Defendant’s argument is not persuasive. [¶] . . . The definition of an owner found in the Vehicle Code does not apply under all circumstances and one may be considered to be an owner of a car although he has not transferred the title in the manner required by the Vehicle Code. [Citation.] The records of the DMV do not necessarily and conclusively establish the true ownership of a vehicle. [Citation.] A certificate of ownership is evidence of title, although not conclusive on the subject. [Citation.]” (Id. at p. 200.)
The court then reviewed the evidence. “In the instant case, Guerrero testified he was the owner of the 1974 Pontiac, he purchased the vehicle from Vasquez several months prior to the theft, he paid Vasquez $400 for the vehicle, and he received the pink slip from Vasquez at the time of the purchase. He further testified the vehicle had been in his sole possession from the date of purchase to the time of the unlawful taking. Defendant did not testify on his own behalf. Thus, Guerrero’s testimony as to ownership, possession, and exclusive dominion and control of the vehicle is uncontroverted. This uncontroverted testimony, without more, is sufficient to support an implied finding of ownership of the 1974 Pontiac at the time of the taking. [Citations.] Consequently, the mere fact Guerrero was not the registered owner of the vehicle at the time of the theft does not fatally undermine his otherwise uncontradicted assertion of ownership. Nor does the failure of the transferor and transferee to strictly comply with the Vehicle Code transfer procedures preclude the prosecution under Vehicle Code section 10851.” (Clifton, supra, 171 Cal.App.3d at p. 201, fn. omitted.)
Coronel testified that she had bought the car from her stepfather, who had bought it some time prior from a Francisco Vargas. She testified that both she and her husband had keys to the vehicle at the time of the attempted theft. She offered reasons why she had not yet transferred the registration into her name. She also testified that she had never given defendant permission to enter the vehicle.
Coronel’s testimony on these points was uncontroverted. Contrary to defendant’s argument, this was not mere evidence of possession, but of ownership. Coronel did not testify that she merely had the owner’s permission to use the car, but that she was the owner. She testified regarding the vehicle’s purchase. While defense counsel’s cross-examination pointed out inconsistencies in Coronel’s prior statements, the fundamental fact of the vehicle’s purchase and Coronel’s ownership was consistent. It was up to the jury to decide whether Coronel’s testimony was credible, and apparently they did so. Thus, there was sufficient evidence from which the jury could determine that Coronel was the vehicle’s owner.
Jury Instructions re Ownership
Defendant next argues that the court erred in instructing the jury regarding the definition of ownership. We review the sufficiency and validity of an instruction independently. (People v. Alvarez (1996) 14 Cal.4th 155, 217.)
The court instructed the jury as follows: “An ‘owner’ is a person having all the incidents of ownership, including the legal title of a vehicle, whether or not such person lends, rents, or creates a security interest in the vehicle. [¶] A ‘registered owner’ is a person registered by the DMV as the owner of the vehicle. [¶] A ‘legal owner’ is a person holding a security interest in the vehicle. A ‘security interest’ is an interest in personal property which secures payment or performance of an obligation [i.e.] a car loan. An owner is anyone who has a possessory right or interest in the property. Property title, which may be considered, is not necessary to prove ownership.”
The court apparently created the last sentence, to which defendant objected, by combining the definition of ownership in Vehicle Code section 460 with CALJIC No. 14.36 and the court’s holding in People v. Edwards (1925) 72 Cal.App. 102 (disapproved on other grounds in In re Estrada (1965) 63 Cal.2d 740, 748). That case considered the definition of “ownership” in terms of larceny: “Considered as an element of larceny, ‘ownership’ and ‘possession’ may be regarded as synonymous terms; for one who has the right of possession as against the thief is, so far as the latter is concerned, the owner.” (Id. at p. 116.)
The trial court reasoned that even those who had not complied with paperwork requirements are entitled to protection against crimes such as theft. Defendant argues that the possession element of larceny does not apply to vehicle theft, based on the statutory definition. Like defendant’s substantial evidence argument, this contention is largely based on the false assumption that in the absence of incontrovertible proof such as documentation, the prosecution was required to prove that Coronel was “qualified” to be the registered owner. Indeed, defendant again argues that the prosecution had not sufficiently proved Coronel was not qualified to be the registered owner.
This is the most technical of technical arguments. For defendant to argue that vehicle theft is not really a species of theft (e.g., larceny) is specious. If this were a case about a defendant who even had a colorable argument that he was entitled to possession as against Coronel or as against the registered owner, matters might be different. In this case, however, there is no such issue. The record does not even vaguely suggest that defendant had any right to be in the car, and the facts are uncontroverted and overwhelming. A strict application of Vehicle Code section 460, in these circumstances, would not further the Legislature’s intent to prohibit and punish the unauthorized taking of vehicles. Given the facts of this case, we find no error in the court’s instruction.
Further, even if the court did err, the evidence of defendant’s guilt was so overwhelming as to render any error harmless. (Chapman v. California (1967) 386 U.S. 18, 24.) There was overwhelming and uncontroverted evidence of defendant’s guilt. One witness saw defendant using some sort of instrument to open the car door. Another, police officer, saw defendant attempting to start the car. Defendant fled when he saw the police officer, suggesting consciousness of guilt. (People v. Smithey (1999) 20 Cal.4th 936, 982.) He had a filed key in his possession. The car’s owner testified that he had no authorization to be in the car. The evidence was therefore such that even if the court did err, it was harmless beyond a reasonable doubt.
Defendant’s Statements
Defendant next argues that his statement to Mendoza regarding the keys in his pocket should not have been admitted, contending a violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). The Fifth Amendment protects against self-incrimination. In Miranda, the Supreme Court established a procedure for protecting that right, which includes advising the suspect, prior to questioning, of their right to remain silent, to consult an attorney, and to have an attorney present during questioning. (Miranda, supra, 384 U.S. at pp. 467-471.) A Miranda violation occurs if the police fail to advise the suspect of his rights prior to interrogation or if the suspect invokes his rights and questioning continues. (People v. Harris (1989) 211 Cal.App.3d 640, 651.)
“When reviewing a trial court’s decision on a motion that a statement was collected in violation of the defendant’s rights under Miranda, supra, 384 U.S. 436, we defer to the trial court's resolution of disputed facts, including the credibility of witnesses, if that resolution is supported by substantial evidence. [Citation.] Considering those facts, as found, together with the undisputed facts, we independently determine whether the challenged statement was obtained in violation of Miranda’s rules [Citation] . . . .” (People v. Weaver (2001) 26 Cal.4th 876, 918.)
Miranda applies only to custodial interrogation. “[T]he term ‘interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. This focus reflects the fact that the Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police. A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation. But, since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.” (Rhode Island v. Innis (1980) 446 U.S. 291, 301-302, fns. omitted.)
Here, defendant claims that Mendoza’s act of holding the keys up in front of defendant’s face was a practice that Mendoza should have known would elicit an incriminating response. He offers no similar cases to support this proposition, however. Indeed, his attempts to distinguish cases in which courts found no interrogation under similar circumstances are valiant but entirely unpersuasive. In United States v. Gay (10th Cir. 1995) 774 F.2d 368, a police officer picked up an item that a suspect had removed from his pocket. The suspect then said, “That’s cocaine, too.” (Id. at p. 371.) The court found no interrogation. Similarly, in U. S. v. Blackstone (9th Cir. 1995) 56 F.3d 1143, an agent removed a gun from the defendant’s bag and placed it on a desk, leading to an inculpatory statement. The court found no interrogation. Defendant claims what distinguishes this case is Mendoza’s act of holding the object “in front of the suspect’s face.” In light of the context — a patdown search following defendant’s apprehension — we find this no more “accusatory” than either of the cited cases. Simply holding up an item retrieved from defendant’s pocket was not “reasonably likely to evoke an incriminating response” from defendant, and therefore not the equivalent of interrogation. We find no error.
Even if admitting the statement was improper, it was harmless beyond a reasonable doubt, for the reasons discussed above. Defendant’s statement was hardly even relevant, given the overwhelming evidence against him. Thus, even if there was error, we find no prejudice.
Sentencing Error
Defendant next argues the imposition of the aggravated term was error because it was not supported by a jury finding that the aggravating factors were true beyond a reasonable doubt. (See Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856] (Cunningham).) He believes this court should either reduce his sentence by two years, or remand for resentencing, with directions for a sentence not to exceed the middle term.
Respondent argues that defendant waived this argument by not making an objection at trial. Given that the argument had been rejected by the California Supreme Court in People v. Black (2005) 35 Cal.4th 1238, we do not find that defendant’s failure to object constituted a wavier.
In the pre-Cunningham era, courts had broad discretion in determining whether to impose the upper, middle, or lower term at sentencing. (See, e.g., People v. Scott (1994) 9 Cal.4th 331, 349.) Under Cunningham, however, before the court can sentence defendant to an upper term based on aggravating facts, a jury must find that any aggravating factors are true beyond a reasonable doubt. (Cunningham, supra, 127 S.Ct. at p. 873.) There is an exception, however, reaffirmed in Cunningham, for prior convictions. (Cunningham, supra, 127 S.Ct. 856 [“The Federal Constitution’s jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant.”] (italics added).)
Defendant characterizes the trial court’s reasoning for sentencing him to the upper term: “The trial court found as aggravating factors that Mr. Tlatepa had prior convictions as an adult and in juvenile proceedings, that he had served a prison term, that his probation and parole had been unsatisfactory, and that he had not given up his gang lifestyle. The court said that he was a danger to society and that his convictions were of increasing seriousness.” Thus, defendant admits that the trial court’s decision was based, at least in part, on his prior convictions, which he admitted were true. A single aggravating circumstance is enough to render defendant eligible for the upper term. (People v. Osband (1996) 13 Cal.4th 622, 728-729.)
In his reply brief, defendant asserts that “The mere fact of a prior conviction is not an aggravating factor under [California Rule of Court] 4.421.” His prior prison term certainly is.
Defendant cites People v. Waymire (2007) 149 Cal.App.4th 1448 (Waymire), for the proposition that relying facts other than the conviction itself made the upper term inappropriate. In that case, “Relying on Blakely [v. Washington (2004) 542 U.S. 296] defendant claims the trial court’s imposition of the upper term violated his federal constitutional right to a jury trial because the trial court ‘impos[ed] an upper term based on its own finding that [defendant]’s crimes were increasing in seriousness and that [his] prior performance on probation was unsatisfactory, ’ rather than based on findings by a jury beyond a reasonable doubt.” (Id. at p. 1451.)
“The People next argue defendant’s sentence was proper under Blakely ‘because it was based on a prior conviction’ and ‘a single aggravating factor can justify the imposition of an upper term.’ According to the People, ‘[b]ecause the court correctly considered the prior conviction as an aggravating factor . . ., it was not required to consider the other factors, and Blakely was not implicated.’” (Waymire, supra, 149 Cal.App.4th at p. 1454.)
The court noted, however: “The flaw in this argument is that even if the trial court could have imposed the upper term on defendant based solely on one or more of his prior convictions, that is not what the court did. Instead, the court imposed the upper term on defendant after finding three aggravating circumstances outweighed one mitigating circumstance. Thus, while the court may not have been required to consider any aggravating circumstance other than a single prior conviction, it plainly did so. The question for us to decide is whether what the court did was error, not whether the court could have (hypothetically) reached the same result without committing error.” (Waymire, supra, 149 Cal.App.4th at p. 1455.)
Defendant, therefore, argues that because the court considered facts beyond the prison prior itself, it is irrelevant that it could have relied only on the prior to support the upper term. That is not, however, what Waymire holds, as it went on to find that no error had occurred. The court rejected defendant’s argument that another United States Supreme Court case, Shepard v. United States (2005) 544 U.S. 13, applied: “The Shepard plurality does not support defendant’s argument that a trial court may not consider the number or increasing seriousness of a defendant’s prior convictions in the absence of a jury finding or admission by the defendant. What raised a risk of unconstitutionality in Shepard was a court making a finding of fact about the circumstances underlying a burglary conviction in connection with sentencing in a later case—circumstances not revealed by the prior judicial record alone. The determination that a defendant’s prior convictions are ‘numerous’ and of ‘increasing seriousness’ does not require any such factual determination to be made about the circumstances underlying those convictions. Rather, that determination can (and should) be made based solely on the nature of those convictions as shown by the judicial record of conviction. Thus, where (as here) the defendant’s criminal record shows he has progressed from committing misdemeanors to manufacturing methamphetamine, a felony, the trial court can find the defendant’s convictions are numerous and of increasing seriousness without contravening Blakely.” (Waymire, supra, 149 Cal.App.4th at pp. 1455-1456.) (We assume this error in applying Waymire was in good faith, but caution counsel to be more careful in the future.)
Thus, Waymire does not stand for the proposition that a trial court’s finding of additional facts not necessary to justify the sentence create Cunningham error. Here, as in Waymire, the court — as defendant admits — found that his prior prison term was an aggravating factor. It also found that the present conviction was of increasing seriousness compared to the prior conviction. These were both proper factors for the court to consider, and either one alone would justify the upper term. As there were no mitigating factors, there is no question of qualitative weighing of aggravating versus mitigating factors. We find no error.
III
DISPOSITION
The judgment is affirmed.
WE CONCUR: SILLS, P. J. RYLAARSDAM, J.