Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County. Super. Ct. No. AF006673 Louis P. Etcheverry, Judge.
Gene D. Vorobyov, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Carlos A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
DAWSON, J.
Following a jury trial, Roberto Benavides, Jr., (appellant) was convicted of one count of receiving a stolen motor vehicle (Pen. Code, § 496d, subd. (a)). The trial court sentenced appellant to the upper term of three years in state prison.
All further statutory references are to the Penal Code unless otherwise stated.
On appeal appellant claims: (1) there was insufficient evidence to uphold his conviction; (2) the trial court prejudicially erred when it gave an incorrect jury instruction; (3) the trial court prejudicially erred in making an evidentiary ruling; and (4) imposition of the upper term violated Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856] (Cunningham). We disagree and affirm.
FACTS
On April 28, 2006, Officer Maria Smith responded to a dispatch of a disturbance at a residence. When she arrived, she saw appellant, who was in the alley a few feet from the backyard gate, directing two men in the backyard on how to load items onto a trailer. Appellant explained to Officer Smith that he was having his two friends load up the trailer with his property because his brother would not allow him in the backyard. Officer Smith asked appellant which items belonged to him. Appellant pointed to various items, including two 4-wheeled red quads, which were still in the backyard.
Officer Matthew Calvillo arrived a few minutes later and observed appellant in the alley 15 feet from his brother’s residence. He also saw a trailer in the backyard of the residence, onto which two men were loading items. Various items were already on the trailer, including cabinets, a black mini motorcycle, and two red quads. There was only one trailer on or near the property.
Officer Calvillo questioned appellant, who explained that he had had an argument with his brother the day before, and appellant wanted to remove the items he had stored at his brother’s house. Officer Calvillo asked appellant if all of the items on the trailer belonged to him, and he replied “yes.” Calvillo specifically pointed at the red Honda quad and asked appellant if it was his, to which appellant again replied that it was. Officer Smith heard Officer Calvillo ask appellant about the Honda quad and she heard appellant say that it belonged to him.
When asked how he obtained that quad, appellant claimed he had purchased it from “Billy” three days earlier. Appellant did not know Billy’s last name, and he could not identify where Billy lived or what he looked like.
Officer Calvillo noticed that the VIN (vehicle identification number) sticker for the Honda was torn off. A subsequent records check on the off-road license revealed that the Honda quad (license No. Q87F86) had been stolen, as had the smaller red quad (license No. Z27P09). While Calvillo made the records check, appellant “was loading up the trailer onto his truck.” Calvillo again asked appellant if the two quads on the trailer were his, and he again said that they were. Calvillo placed appellant under arrest for possession of stolen property. Appellant then claimed that the officer must have been mistaken because appellant was only referring to the black mini motorcycle as belonging to him, and not the quads.
When Officer Calvillo testified, he inadvertently reported the first letter was an “O” rather than a “Q.”
At trial, Steven Vierra testified that he had been at a drag boat race at Lake Ming on April 22, 2006, when his quad, a 2006 red Honda 250, license No. Q87F86, for which he paid $4,000 and which had been locked with a cable to the front of his fifth wheel trailer, was stolen. When Vierra got his quad back from the police, it had bent rims, worn tires, and the “guts” of the exhaust had been removed. The wires were cut and the quad was “hot wired” to the back of the battery. Vierra did not know appellant and had not given him permission to have the Honda quad.
Kimberly Armifar testified that she owned a 2001 red Polaris quad, license No. Z27P09, for which she paid $2,100 or $2,200 “brand new” and which had been stolen from her backyard in March of 2006. Armifar testified that the quad had a key ignition when it was stolen. When she got it back, the starter was broken, the chain guard and push guard protector were broken, and the battery was dead. The ignition switch had to be replaced because the key was missing. Armifar did not know appellant and she had not given him permission to have the quad.
Defense
Appellant’s sister, Irasema Benavides, testified that she and a friend Troy Shadden arrived at her brother Oziel Benavides’s home. While they were there, appellant arrived, driving his truck with an attached trailer. He parked the truck and trailer in the alley, and he remained with his truck, because Oziel did not want appellant anywhere near his backyard. Irasema testified that she spoke to Oziel about picking up appellant’s stuff, but that Oziel told her only somebody other than appellant could put the items on the trailer. She claimed the trailer she was referring to was a trailer that was already in the backyard.
Irasema testified that she never saw appellant take any of the property in the yard and she never saw appellant point out either of the quads to the movers. According to Irasema, there was a second trailer on the property, and Shadden and another man, Rodrigo Garcia Herrera, were loading items onto that trailer, including some kitchen cabinets, a motorcycle, some boxes, and the two quads. All the while, appellant was still down the alley sitting by his truck. Irasema never heard appellant instruct Shadden or Garcia to load the quads onto his trailer.
Garcia also testified that appellant had a trailer attached to his truck, but that he had parked it by a neighbor’s house, as Oziel did not want appellant on his property. The second trailer, which was already on Oziel’s property, had no tires but Garcia and Shadden put tires on it. Garcia claimed that appellant never helped move that trailer, and he never directed him to move anything onto the trailer. Garcia claimed appellant never even talked to him because appellant was “nowhere in sight.”
Appellant testified in his own behalf and maintained that he had parked his truck and trailer two houses down from his brother’s and he never went onto his brother’s property. He stated that he had explained to Officer Smith that he was there to get his “belongings” or “stuff” and he never used the word “quads.” He claimed that, from where he waited, he did not have a view of his brother’s backyard, and he denied ever directing Garcia or Shadden to load items onto the other trailer. Instead, he claimed it was Oziel who told Garcia and Shadden what to load onto the trailer. Appellant claimed that when he spoke to Officer Calvillo, he mistakenly thought the officer was asking about the ownership of the black motorcycle. Appellant admitted he had previously been convicted of possession of drugs for sale.
DISCUSSION
1. Is there sufficient evidence to support appellant’s conviction for possession of a stolen vehicle?
Appellant contends there is insufficient evidence to support his conviction for possession of a stolen motor vehicle because there was no evidence that the quads were “self-propelled” as defined in the Vehicle Code. We disagree.
“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.” (People v. Rodriguez (1999) 20 Cal.4th 1, 11, citing People v. Johnson (1980) 26 Cal.3d 557, 578; see also People v. Lenart (2004) 32 Cal.4th 1107, 1125.)
Under this standard, the court does not “‘“ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.” [Citation.] Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ (Jackson v. Virginia (1979) 443 U.S. 307, 318-319.)” (People v. Hatch (2000) 22 Cal.4th 260, 272; see also People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
Section 496d, subdivision (a) provides, in relevant part:
“Every person who … receives any motor vehicle, as defined in Section 415 of the Vehicle Code, … that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be stolen or obtained … shall be punished.”
The term “motor vehicle” is defined by reference to Vehicle Code section 415, subdivision (a), which defines a motor vehicle as a “vehicle that is self-propelled.”
The term “self-propelled” means a vehicle that is capable of moving on its own power from place to place. (Colby v. Liberty Mutual Ins. Co. (1963) 220 Cal.App.2d 38, 45.) “For purposes of classification as a ‘motor vehicle’ under the broad definition of the Vehicle Code, it is not required that the device be one that may legally be ‘self-propelled upon a highway.’” (Lambert v. Southern Counties Gas Co. (1959) 52 Cal.2d 347, 351.) The term “motor vehicle” is broadly construed and includes a motor truck (Veh. Code, § 410), a truck tractor (id., § 655), a snowmobile (id., § 557), a motorcycle (id., § 400; Harrison v. California State Auto. Assn. Inter-Ins. Bureau (1976) 56 Cal.App.3d 657, 663), a mobile crane or mobile truck-crane (Colby v. Liberty Mutual Ins. Co., supra, at pp. 44-45; Donahue Constr. Co. v. Transport Indem. Co. (1970) 7 Cal.App.3d 291, 300), a motorized forklift (Travelers Indem. Co. v. Colonial Ins. Co. (1966) 242 Cal.App.2d 227, 236-238, disapproved on other grounds in Argonaut Ins. Co. v. Transport Indem. Co. (1972) 6 Cal.3d 496, 505), and a bulldozer (Lambert v. Southern Counties Gas Co., supra, at p. 351). In contrast, a bicycle has been held not to be a motor vehicle under Vehicle Code section 415 because it is not self-propelled. (Green v. Pedigo (1946) 75 Cal.App.2d 300, 307-308.)
Appellant relies on Farmers Ins. Exchange v. Galvin (1985) 170 Cal.App.3d 1018, 1021-1022, in which the court held—not in the context of a sufficiency of the evidence claim but for purposes of an insurance policy—that a moped was not a motor vehicle under Vehicle Code section 415 because it could be pedaled. Appellant claims that there was no evidence here that the quads were self-propelled, leaving open the possibility that they could be pedaled. We disagree.
Although no witness expressly testified that the quads were “self-propelled,” the jury could easily glean such information from the evidence presented at trial. Appellant told Officer Calvillo that “Billy,” from whom he allegedly bought the quad, was “always driving down the alleyway with quads.” Both quads had license plates, and the Honda’s owner had a “registration” on his quad with the Department of Motor Vehicles. Both quads had an ignition key, an ignition switch, a battery, a starter, and an exhaust. There was absolutely nothing in the evidence to indicate that the quads could be pedaled.
From this evidence, the jury could reasonably infer that the quads were motor vehicles within the meaning of Vehicle Code section 415. We reject appellant’s claim to the contrary.
2. Did the court incorrectly instruct on the elements of section 496d?
Appellant contends that the court incorrectly instructed on the elements of a section 496d offense, with which he was charged. According to appellant, the jury was instructed on possession of stolen property under section 496, with which he was not charged, instead of possession of a stolen motor vehicle under section 496d. Appellant claims the instruction given “completely omitted the need for the jury to make a finding that appellant was in possession of a qualified stolen motor vehicle.” Respondent acknowledges that the trial court erred in instructing on possession of stolen property under section 496 rather than under section 496d, but claims the error was harmless beyond a reasonable doubt. We agree with respondent.
Section 496d is a variation of receiving stolen property under section 496. The only substantive difference is the requirement that the stolen property be a motor vehicle, trailer, special construction equipment, or a vessel. The elements of a section 496d offense require proof that (1) the vehicle was stolen; (2) the defendant knew the vehicle was stolen; and (3) the defendant had possession of the stolen vehicle. (People v. Russell (2006) 144 Cal.App.4th 1415, 1425; In re Anthony J. (2004) 117 Cal.App.4th 718, 728.)
The court instructed the jury with CALCRIM No. 1750 as follows:
“The defendant is charged in count one with with [sic] receiving stolen property. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] One, the defendant bought, received or withheld from the owner property that had been stolen; [¶] Two, when the defendant bought, received or withheld the property, he knew that the property had been stolen, and; [¶] Three, the defendant actually knew of the presence of the property. [¶] Property is stolen if it was obtained by any type of theft or by burglary or robbery. Theft includes obtaining property by larceny, embezzlement, false pretenses or trick. [¶] To receive property means to take possession and control of it. Mere presence near or access to the property is not enough. [¶] Two or more people can possess the property at the same time. [¶] A person does not have to actually hold or touch something to possess it. It is enough if the person has control over it or the right to control it either personally or through another person.”
Neither party objected to the giving of this instruction. CALCRIM No. 1750 is the instruction listed in the CALCRIM index as the one to be given when a defendant is charged with a violation of any of the following: sections 496, subdivision (a) (buying or receiving stolen property), 496, subdivision (b) (swap meet vendors and collectors buying or receiving stolen property), 496, subdivision (d) (attempting to buy or receive stolen property), 496a, subdivision (a) (junk and secondhand dealers buying or receiving stolen metals), 496b (second-hand book dealers buying or receiving stolen literary materials), and 496d, subdivision (a) (buying or receiving any motor vehicle), the code section at issue here. (See Judicial Council of Cal. Crim. Jury Instns. (2007-2008) p. TS-10.) The related CALJIC instruction is CALJIC No. 14.65, which is titled “Receiving Stolen Property–Defined” and states it is to be used for a violation of section 496, subdivision (a). No separate CALJIC instruction exists for a violation of section 496d, subdivision (a).
Appellant does not state which instruction should have been given, other than to state that the instruction “did not mention the need to find that appellant was in possession of a stolen motor vehicle,” as defined under section 415 of the Vehicle Code. Respondent agrees that the instruction which was given omitted the need for the jury to find that appellant possessed “‘a qualified stolen motor vehicle,’” but also does not suggest which instruction should have, instead, been given.
Even if the instruction given should have been modified to include an element that the property which was stolen was a motor vehicle, we conclude the trial court’s error does not require reversal. As the parties recognize, the failure to instruct the jury on an element of the offense is subject to harmless error analysis under Chapman v. California (1967) 386 U.S. 18, 24. (People v. Flood (1998) 18 Cal.4th 470, 500-501 [failure to instruct on element of charged crime is subject to Chapman test of harmless error].) Under the Chapman test, we must determine whether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict. (People v. Magee (2003) 107 Cal.App.4th 188, 194.) “To say that an error did not contribute to the verdict is … to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.” (Yates v. Evatt (1991) 500 U.S. 391, 403, disapproved on other grounds in Estelle v. McGuire (1991) 502 U.S. 62, 73, fn. 4.) The evidence must be of such compelling force as to show beyond a reasonable doubt that the erroneous instruction must have made no difference in reaching the verdict obtained. (People v. Chavez (2004) 118 Cal.App.4th 379, 387.)
The sole issue at trial was whether appellant knowingly possessed the stolen quads. Vierra and Armifar both testified that the quads in question were stolen and damaged. Officer Smith specifically observed appellant directing Garcia and Shadden on how to load items onto the trailer. When asked which items belonged to him, appellant pointed to various items, including the two 4-wheeled red quads, which were at that point still in the backyard. After the items were loaded, Officer Calvillo arrived and also asked appellant if the items on the trailer, including specifically the red Honda quad, was his. Appellant replied that it was. Officer Smith witnessed this exchange. After learning the quads were stolen, Officer Calvillo again asked appellant if the quads in the trailer belonged to him, and he again stated that they did. Appellant’s defense was that he did not have a view of his brother’s yard and did not know what Garcia and Shadden were loading onto the trailer. He also claimed that he was only referring to the black motorcycle when he was asked about ownership. He never contested whether the quads were motor vehicles.
On this record, we are well satisfied that the “jury verdict[s] would have been the same” (Neder v. United States (1999) 527 U.S. 1, 17, 19 [evidence relevant to omitted element was overwhelming and not contested by defendant]) had a modified version of CALCRIM No. 1750, to include an element that the stolen property was a motor vehicle, been given.
3. Did the trial court err when it sustained the prosecution’s hearsay objection to an out-of-court statement of appellant’s brother?
At trial, appellant wished to introduce the testimony of his sister and Garcia that it was appellant’s brother, Oziel, who directed Garcia and Shadden to what items of property to load onto the trailer. Appellant contends thetrial court erred by sustaining the People’s hearsay objections in the two instances discussed above. Appellant claims, because the information was not sought for its truth but simply to show that it was Oziel and not appellant who exercised dominion and control over the quads, the information was not hearsay. He further claims his inability to present this evidence denied him his due process right to present a defense. We disagree.
First, we reject this latter claim. By sustaining the People’s hearsay objections in these two instances, the trial court’s alleged error, if error, did not rise to the level of an unconstitutional deprivation of the right to present a defense. As a general matter, the “[a]pplication of the ordinary rules of evidence … does not impermissibly infringe on a defendant’s right to present a defense.” (People v. Mincey (1992) 2 Cal.4th 408, 440; see People v. Hall (1986) 41 Cal.3d 826, 834.) Although completely excluding evidence of an accused’s defense theoretically could rise to this level, excluding defense evidence on a minor or subsidiary point does not impair an accused’s due process right to present a defense. (People v. Hawthorne (1992) 4 Cal.4th 43, 58.) If the trial court misstepped, “[t]he trial court’s ruling was an error of law merely; there was no refusal to allow [the defendant] to present a defense, but only a rejection of some evidence concerning the defense.” (In re Wells (1950) 35 Cal.2d 889, 894.) Accordingly, the proper standard of review is that announced in People v. Watson (1956) 46 Cal.2d 818, 836, and not the stricter beyond-a-reasonable-doubt standard reserved for errors of constitutional dimension (Chapman v. California, supra, 386 U.S. at p. 24). (People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103.)
Second, assuming appellant is correct and defense counsel’s questions did not call for hearsay, we agree with respondent that any error was harmless. Appellant himself testified that his brother would not allow him on the property, that appellant did not direct Garcia and Shadden to load items onto the trailer but that his brother had done so, and that he did not even have a view of the backyard from where he was standing. This evidence was corroborated by Irasema, who testified that she never saw appellant take possession of any of the property in the yard or point out either of the quads to the movers. Garcia testified that appellant never directed him to put anything on the trailer, nor did he even talk to appellant since appellant was “nowhere in sight.”
Thus, assuming the trial court erred by sustaining the hearsay objections described above, much of the evidence was ultimately placed before the jury. In light of the overwhelming evidence that appellant was the one who was directing Garcia and Shadden to put the quads on the trailer, and appellant’s identification of the quads as his, we cannot say it is reasonably probable that the jury would have reached a more favorable verdict in the absence of any such assumed error. (People v. Watson, supra, 46 Cal.2d at p. 836.) Accordingly, we find any such error harmless.
4. Did imposition of the upper term violate appellant’s constitutional rights?
The trial court imposed the upper term sentence on appellant’s conviction. Relying on Cunningham, supra, 549 U.S.__ [127 S.Ct. 856], Blakely v. Washington (2004) 542 U.S. 296 (Blakely), and Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), appellant contends the trial court violated his Sixth Amendment right to trial by jury by imposing the upper term based on factors not admitted by appellant or found true by the jury beyond a reasonable doubt. We disagree.
In Cunningham, the Supreme Court reaffirmed Apprendi, Blakely, and United States v. Booker (2005) 543 U.S. 220, but overruled People v. Black (2005) 35 Cal.4th 1238 (Black I) and held California’s determinate sentencing law violates a defendant’s constitutional right to a jury trial to the extent it authorizes the trial judge to find facts that expose a defendant to an upper term sentence by a preponderance of the evidence. “This court has repeatedly held that, under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence.” (Cunningham, supra, 549 U.S. at p. __ [127 S.Ct. at pp. 863-864].)
The United State Supreme Court has recognized two exceptions to a defendant’s Sixth Amendment right to a jury trial on an aggravating fact that renders him or her eligible for a sentence above the statutory maximum. First, a fact admitted by the defendant may be used to increase his or her sentence beyond the maximum authorized by the jury’s verdict. (Blakely, supra, 542 U.S. at p. 303.) Second, the right to jury trial and the requirement of proof beyond a reasonable doubt do not apply to the aggravating fact of a prior conviction. (Id. at p. 301; see Apprendi, supra, 530 U.S. at p. 490; Almendarez-Torres v. United States (1998) 523 U.S. 224.)
At the sentencing hearing, following argument by counsel, the trial court stated that, although appellant had successfully completed parole on several occasions, appellant’s other times on parole and probation were an “almost revolving door process,” and that appellant had “not really managed to change his life-style.” The court found appellant’s prior convictions as an adult and sustained petitions in juvenile delinquency proceedings to be “numerous” and “extensive,” in that he had served two prior prison terms and a commitment to the California Youth Authority. The trial court also noted that appellant’s prior performance on misdemeanor and felony probation and California Youth Authority and state parole was unsatisfactory “in that he violated said terms and continued to reoffend during those cases.” The court found the factors in aggravation outweighed those in mitigation and imposed the upper term.
We find the trial court relied, and properly so, on appellant’s prior criminal history in imposing the upper term. Appellant’s criminal history is quite lengthy and dates back to 1977. It consists of some 25 offenses and numerous violations of probation and parole. The probation report lists juvenile adjudications for possession of marijuana and attempted robbery with the use of a firearm. As an adult, appellant had convictions for numerous Vehicle Code violations and numerous Health and Safety Code controlled substance violations. He had two prior prison terms.
Prior to the decision in Cunningham, the prior conviction exception to Apprendi and Blakely was construed broadly by California appellate courts to apply not only to the fact of prior convictions but also to other issues relating to the defendant’s recidivism, including the defendant’s status as a probationer or parolee at the time the current offense was committed and the existence of “numerous” or increasingly serious prior convictions. (People v. Thomas (2001) 91 Cal.App.4th 212, 221-222 [“courts have held that no jury trial right exists on matters involving the more broadly framed issue of ‘recidivism’”]; People v. McGee (2006) 38 Cal.4th 682, 706-707 [“numerous state and federal court decisions have interpreted the Almendarez-Torres[, supra, 523 U.S. 224] exception more broadly than defendant urges here, and have concluded that Apprendi does not preclude a court from making sentencing determinations related to a defendant’s recidivism”].) The reasoning of Thomas and McGee was recently reaffirmed in People v. Black (2007) 41 Cal.4th 799, 819-820 (Black II), by which we, of course, are bound. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Appellant’s prior criminal history was therefore an aggravating circumstance correctly relied upon by the trial court in sentencing appellant to the upper term. And as stated most recently in Black II:
“[A]s long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional factfinding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial. [¶] … [¶] Accordingly, so long as a defendant is eligible for the upper term by virtue of the facts that have been established consistently with Sixth Amendment principles, the federal constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury.” (Black II, supra, 41 Cal.4th at pp. 812-813.)
In summary, since appellant’s criminal history established an aggravating circumstance “that independently satis[fied] Sixth Amendment requirements and render[ed] him eligible for the upper term,” “he was not legally entitled to the middle term, and his Sixth Amendment right to jury trial was not violated by imposition of the upper term sentence .…” (Black II, supra, 41 Cal.4th at p. 820.) Therefore, there was no federal constitutional error. (Cf. People v. Sandoval (2007) 41 Cal.4th 825, 832 [6th Amend. rights violated by imposition of upper term sentence where no aggravating circumstances cited by trial court fell within Blakely exceptions of fact of prior convictions or facts established by jury’s verdict or admitted by defendant].)
DISPOSITION
The judgment is affirmed.
WE CONCUR: GOMES, Acting P.J., HILL, J.