Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 5-080925-1
Kline, P.J.
Appellant was convicted, following a jury trial, of unlawfully driving a motor vehicle. On appeal, he contends the trial court erred when it refused to instruct the jury on mistake of fact. We shall affirm the judgment.
PROCEDURAL BACKGROUND
Appellant was charged by felony complaint with unlawfully driving or taking a vehicle (Veh. Code, § 10851, subd. (a)–count one), and receiving stolen property (Pen. Code, § 496, subd. (d)–count two). Following the preliminary hearing, appellant was charged by information with the same two offenses.
On October 3, 2008, a jury found appellant guilty of count one and not guilty of count two.
On November 10, 2008, the trial court suspended imposition of sentence and placed appellant on three years’ probation.
On November 24, 2008, appellant filed a notice of appeal.
FACTUAL BACKGROUND
El Cerrito Police Officer Bailey Thepkaysone testified that on July 4, 2008, at 7:22 p.m., he saw appellant walking in Richmond and they had a brief conversation. Approximately one hour later, Thepkaysone saw appellant driving a black four-door Acura, two to three miles from where he had previously seen appellant. Thepkaysone initiated a traffic stop after appellant’s failure to make a complete stop at a stop sign drew his attention. He was also aware that appellant’s driver’s license had been suspended.
Appellant pulled over, exited his vehicle, and turned toward Thepkaysone. Thepkaysone exited his vehicle and instructed appellant to get back inside his vehicle. Thepkaysone then approached the vehicle. Appellant was alone in the vehicle; he was wearing black gloves, he was sweating, and his hands were shaking. Thepkaysone asked appellant for his driver’s license, which appellant did not provide, although he provided a different form of identification. Thepkaysone then asked appellant who the car belonged to and appellant said he had borrowed the car from a friend named Rafael Gonsales. Because appellant appeared “a little nervous,” Thepkaysone asked appellant if he would be willing to turn off the engine and hand over the keys to the car. When appellant said he did not have the keys, Thepkaysone asked what he had used to start the vehicle, and appellant said he had used a screwdriver.
After appellant gave him the screwdriver, Thepkaysone had dispatch check the vehicle’s license plate number, and was advised that the vehicle had been reported stolen in the City of San Pablo. Thepkaysone arrested appellant, who was transported by another officer to the El Cerrito Police Department for booking. Thepkaysone, continuing his investigation, inspected the Acura and noticed that some compartments were stripped and that the stereo was missing. He did not notice any damage to the door locks or the ignition.
About 15 to 20 minutes after the arrest, the owner of the vehicle, Rafael Gonsales, arrived at the scene and identified the vehicle as his. Gonsales told Thepkaysone that there were things missing from the car and that a bag on the back seat of the vehicle, which contained a lug nut wrench, another wrench, two carjack stands, and a jacket, was not his. According to Thepkaysone, jacks and lug nut wrenches are commonly used to remove tires.
Rafael Gonsales testified that he owned the 1990 Acura in which appellant was stopped on July 4, 2008. He had bought it a week earlier from Juan Fernando Valdiva for $1,200, and had two sets of keys. Before he was called to the scene on the evening of July 4, Gonsales had last seen his car at about 9:30 p.m. on July 3 when he went to his home in San Pablo to sleep. At about noon the next day, he went outside to go to the store, and noticed his car was gone. He reported the car missing to the police at about 4:30 or 5:00 p.m. About an hour later, he received a call from police and went to the scene to look at a car, which was his Acura.
When Gonsales looked at the vehicle, he saw that the stereo and a seat cover were missing. Later, when he was at home, he noticed that the muffler was missing. A piece of wood board and a bag that were inside the car were not his. The only items inside the bag that were his were vests from work that had been in the trunk of the car when he last saw them. There were check stubs with his name on them in the glove compartment of the car.
Gonsales did not know anyone named David Avelar. He never gave David Avelar permission to have his car, and never gave anyone permission to have his car on July 4, 2008. The title to the car was still in the name of Juan Fernando Valdivia, from whom Gonsales had received the title document when he bought the car. He had not yet registered a change of ownership with the Department of Motor Vehicles because he did not have a lot of money at that time.
DISCUSSION
The Trial Court’s Refusal to Instruct the Jury on Mistake of Fact
Appellant contends the trial court erred when it refused to instruct the jury on mistake of fact, arguing that there was substantial evidence that he believed he had borrowed the vehicle from the owner.
A. Trial Court Background
During a discussion of jury instructions, defense counsel requested that the jury be instructed with CALCRIM No. 3406, on mistake of fact. She argued that substantial evidence supported the instruction because Officer Thepkaysone had testified that appellant said he borrowed the car from Rafael Gonsales, which suggested that appellant mistakenly believed he had borrowed the car from the owner. The trial court ultimately found that there was not substantial evidence of mistake of fact and, therefore, declined to give the instruction.
CALCRIM No. 3406 provides in full: “The defendant is not guilty of <insert crime[s]> if (he/she) did not have the intent or mental state required to commit the crime because (he/she) [reasonably] did not know a fact or [reasonably and] mistakenly believed a fact.
B. Legal Analysis
“At common law, an honest and reasonable belief in the existence of circumstances, which, if true, would make the act with which the person [was] charged an innocent act, was a good defense.” (People v. Russell (2006) 144 Cal.App.4th 1415, 1425 (Russell).) Penal Code section 26, paragraph three, which codifies the common law rule, provides: “All persons are capable of committing crimes except those belonging to the following classes: [¶]... [¶]... Persons who committed the act or made the omission charged under an ignorance or mistake of fact, which disproves any criminal intent.” Thus when “ ‘ “a person commits an act based on a mistake of fact, [the defendant’s] guilt or innocence is determined as if the facts were as he perceived them.” ’ [Citations.]” (People v. Reed (1996) 53 Cal.App.4th 389, 396, italics omitted.)
The trial court’s obligation to instruct on the defense of mistake of fact arises only if the defendant is relying on such a defense, or if there is substantial evidence that supports such a defense and the defense is not inconsistent with the defendant’s theory of the case. (Russell, supra, 144 Cal.App.4th at p. 1427; see also People v. Barton (1995) 12 Cal.4th 186, 195.) “[T]he trial court should not measure the substantiality of the evidence by weighing the credibility of witnesses. That duty is within the exclusive province of the jury. However, the court need not give the instruction if the evidence is minimal and insubstantial. [Citation.] Finally, any doubt as to the sufficiency of the evidence to support the instruction should be resolved in favor of the accused. [Citation.]” (Russell, at p. 1430.)
In the present case, we need not definitively decide whether appellant’s statement to Officer Thepkaysone that he had borrowed the car from Gonsales constituted substantial evidence of mistake of fact. Even assuming arguendo that the trial court should have instructed the jury with CALCRIM No. 3406, we conclude that the failure to do so was plainly harmless. That is both because the jury necessarily resolved that factual question adversely to appellant under other, properly given instructions, and because the evidence of appellant’s guilt was overwhelming.
Appellant asserts that the alleged error in this case is subject to per se reversal, arguing that a trial court’s refusal “to give an instruction on a requested theory of law violates a defendant’s constitutional right to present a defense and impinges on his right to a jury trial.” Appellant cites United States v. Escobar de Bright (9th Cir. 1984) 742 F.2d 1196, 1198, 1202, in which the Ninth Circuit Court of Appeals held that the trial court erred when it refused to instruct the jury on the defense theory that the defendant could not be found guilty if she had “conspired” only with a government agent, and the error was reversible per se.
First, in People v. Sedeno (1974) 10 Cal.3d 703, 721, overruled on other grounds in People v. Breverman (1998) 19 Cal.4th 142, 165, our Supreme Court stated: “[I]n some circumstances it is possible to determine that although an instruction... was erroneously omitted, the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions. In such cases the issue should not be deemed to have been removed from the jury’s consideration since it has been resolved in another context, and there can be no prejudice to the defendant since the evidence that would support [such] a finding... has been rejected by the jury.”
The jury instruction on count one, unlawfully driving a motor vehicle, required the jury to find that appellant “took or drove someone else’s vehicle without the owner’s consent” and that, when he did so, he “intended to deprive the owner of possession or ownership of the vehicle for any period of time.” The jury was also instructed that the crimes charged required proof of that appellant “not only intentionally [committed] the prohibited act,” but must also have done so with specific intent, and that it could not convict appellant of any crime unless it was “convinced that each fact essential to the conclusion that [he] is guilty of that crime has been proved beyond a reasonable doubt.” The jury was further instructed that, having heard evidence that appellant made an oral statement before trial, it should first decide whether he had made the statement and, if so, should consider the statement along with all of the other evidence, and should also determine how much importance to give the statement.
Based on these and other instructions, the jury found appellant guilty of unlawfully driving a motor vehicle. It follows that the jury necessarily must have concluded that appellant had the requisite intent to commit that offense. Had the jury entertained a reasonable doubt as to any of the elements of unlawfully driving a vehicle, including the specific intent element—whether based on appellant’s statement to Officer Thepkaysone that he had borrowed the car from Gonsales or any other evidence—they would have been constrained by the instructions given to find appellant not guilty of that charge.
Thus, because “the factual question posed by the omitted instruction [CALCRIM No. 3406] was necessarily resolved adversely to [appellant] under other, properly given instructions,” we conclude appellant was not prejudiced by the trial court’s alleged error. (People v. Sedeno, supra, 10 Cal.3d at p. 721; accord, People v. Lewis (2001) 25 Cal.4th 610, 646; but see Russell, supra, 144 Cal.App.4th at pp. 1432-1433 [finding that omission of instructions on mistake of fact and another applicable defense would have been more valuable to jury than instructions regarding elements of offense and jury argument regarding mistake of fact]; see Chapman v. California, supra, 386U.S. at p. 24; People v. Watson, supra, 46 Cal.2d at p. 836.)
Second, the evidence supporting the conclusion that appellant did not mistakenly believe he had a right to be in Gonsales’s car was extremely strong. Officer Thepkaysone testified that when he stopped appellant for a Vehicle Code violation, appellant was wearing black gloves, was sweating, and his hands were shaking. Appellant told Thepkaysone that he did not have keys to the car and had used a screwdriver to start the car. Upon running the car’s license plate through dispatch, Thepkaysone learned that the car had been reported stolen. A lug nut wrench and two car jacks were found in the car that did not belong to Gonsales and, according to Thepkaysone, these tools were commonly used to remove tires.
Gonsales testified that he reported the Acura stolen after he came outside his house and saw that it was missing. When the car was returned to him, he noticed that the stereo, a seat cover, and the muffler were missing. Gonsales did not know anyone named David Avelar and never gave appellant permission to have his car; he never gave anyone permission to have his car on July 4, 2008.
As to appellant’s statement to Thepkaysone that he had borrowed the car from his friend, Rafael Gonsales, Gonsales testified that paystubs with his name on them were in the glove compartment of his car when it was stolen, which would explain how appellant knew Gonsales’s name.
Accordingly, in light of the strength of the evidence of appellant’s guilt, any error on the part of the trial court in failing to instruct the jury on the mistake of fact defense plainly did not prejudice appellant. (See Chapman v. California, supra, 386 U.S. at p. 24; People v. Watson, supra, 46 Cal.2d at p. 836.)
DISPOSITION
The judgment is affirmed.
We concur: Haerle, J. Richman, J.
“If the defendant’s conduct would have been lawful under the facts as (he/she) [reasonably] believed them to be, (he/she) did not commit <insert crime[s]>.
“If you find that the defendant believed that <insert alleged mistaken facts> [and if you find that belief was reasonable], (he/she) did not have the specific intent or mental state required for <insert crime[s]>.
“If you have a reasonable doubt about whether the defendant had the specific intent or mental state required for <insert crime[s]>, you must find (him/her) not guilty of (that crime/those crimes).” (Revised Dec. 2008.)
We do not agree with appellant that the alleged error at issue is subject to per se reversal. Appellant acknowledges that “at least three Court of Appeal decisions suggest or hold that [People v.] Watson [(1956) 46 Cal.2d 818, 836] error analysis is sufficient when a trial court erroneously fails to instruct on a mistake of fact defense.” (See Russell, supra, 144 Cal.App.4th at p. 1431; People v. Mayer (2003) 108 Cal.App.4th 403, 413; People v. Goodman (1970) 8 Cal.App.3d 705, 709.) We conclude that harmless error analysis applies and that, in this case, any error was harmless, regardless of whether the federal or state standard for assessing prejudice is utilized. (See Chapman v. California (1967) 386 U.S. 18, 24; People v. Watson, supra, 46 Cal.2d at p. 836.)