Opinion
E064499
09-18-2017
THE PEOPLE, Plaintiff and Respondent, v. BRANDI COLYN BIRDZELL, Defendant and Appellant.
David L. Annicchiarico, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Anthony DaSilva and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. SWF1500531) OPINION APPEAL from the Superior Court of Riverside County. Angel M. Bermudez, Judge. Affirmed and remanded for resentencing. David L. Annicchiarico, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Anthony DaSilva and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and Respondent.
Oksana Leslie discovered that her Honda minivan was missing from her garage. Her friends canvassed the nearby area and came upon the minivan, which was being driven by defendant and appellant Brandi Colyn Birdzell. An unidentified male was in the passenger's seat. When Oksana's friends pulled in front of the minivan to block its path, defendant sped away, running several stop signs. Defendant pulled onto a friend's property, got out and the male passenger drove away in the minivan. Oksana's friends followed the minivan, lost it for a few moments, and then found it abandoned on the street with the key in it.
We use first names for clarity because some witnesses share a last name. No disrespect is intended.
Defendant was found guilty of unlawful taking or driving of a vehicle in violation of Vehicle Code section 10851, subdivision (a)., Defendant was sentenced to two years to be served in Riverside County Jail.
Defendant was additionally charged with receiving or buying a stolen vehicle (Pen. Code, § 496d, subd. (a)) but there was no finding on the count by the jury because it found her guilty of violating Vehicle Code section 10851. The count was dismissed.
All further statutory references are to the Vehicle Code unless otherwise indicated.
Defendant claims on appeal as follows: (1) the trial court erred and violated her due process rights by instructing the jury with CALCRIM No. 1820, which excluded an element of the crime and CALCRIM No. 376, which lessened the prosecutions burden of proof; and (2) the trial court erred by imposing a parole revocation fine pursuant to Penal Code section 1202.45 at the time of sentencing, as she was ordered to serve her sentence in county jail.
FACTUAL HISTORY
On February 22, 2015, Oksana lived in San Jacinto with her husband and their four children. She owned a 2005 Honda Odyssey Minivan (minivan). Oksana's daughter, Amy Leslie, was allowed to drive the minivan. Amy drove the minivan on the night of February 21. Oksana believed that Amy returned home around 1:30 a.m. The parties stipulated that if Amy were to testify, she would state that on February 22 at 3:00 a.m., she parked the minivan inside the garage at the San Jacinto home, put the keys in the center console, and closed the garage door.
Around 4:00 a.m., Oksana went to the garage to get a bottle of water. The minivan was gone and the garage was open. Oksana woke up Amy, who assured her that she had parked the minivan in the garage when she got home. Amy was sure she closed the garage. Oksana called the police.
The police took a report and left. Around 8:00 a.m., Oksana called her friends in the neighborhood to have them keep a lookout for the minivan. Oksana called her best friend, Riva Knudtson, and told her the minivan had been stolen. Riva was married to Donald Knudtson and they had a son, Johnathon. Riva offered for Donald to drive around and look for the minivan.
Johnathon helped his dad try to find Oksana's minivan by driving around San Jacinto and Hemet. As they were driving around, they saw the minivan driving down a side street. They followed the minivan and confirmed the license plate matched the number given to them by Oksana. The minivan increased its speed and turned on several streets. Donald was able to pull his car in front of the minivan and he got out.
Johnathon stayed in the car. Johnathon could clearly see the driver of the minivan who he identified as defendant. He described her as having long, dark hair; wearing a jacket with stripes; and wearing regular glasses. Johnathon could see there was a male in the passenger's seat but could not provide a description.
Donald walked up to the driver's side of the minivan. He observed that the driver was a woman and a male was in the passenger's seat. He got within five feet of the driver and also identified her as defendant. She had a surprised look on her face. She was wearing what appeared to be prescription glasses. After a few seconds, defendant sped away in the minivan.
Donald got back in the truck and tried to keep up with defendant. Defendant ran several stop signs. They followed the minivan to a large house that had gate. A man opened the gate and defendant drove the minivan behind a shed on the property.
The minivan then exited the property and a male was driving the minivan. The man driving the minivan appeared to be the same man who had been in the passenger's seat. He sped off and Donald had a difficult time staying behind the minivan. They lost sight of the minivan but finally found it parked on a side street; no one was in it. Deputy sheriffs arrived at the scene where the minivan was parked. Johnathon told the responding deputies the location of the house where the minivan had stopped.
Johnathon and Donald were taken to an in-field identification lineup. Johnathon identified defendant, who was in custody, as the driver of the minivan based on her hair and jacket. Donald identified defendant as the woman who had been driving the minivan based on her glasses and her face; he was 90 to 95 percent certain of his identification. Neither Donald nor Johnathon knew defendant.
Carl Veiga lived on Whittier Avenue in Hemet. The property consisted of five acres. He was friends with defendant. She did not live with him. On February 22, 2015, defendant showed up at his house unannounced around noon. Veiga came out of his house and saw that she was there. He observed a minivan driving away from his property. He had never before seen the minivan or the male driving the minivan. A few minutes later, a sheriff's deputy came to his property. Veiga did not have a chance to talk to defendant. Veiga's friend Edward Florez was also in the house, but Veiga denied Florez opened the gate.
Riverside County Sheriff's Deputy Timothy Dunlap was dispatched to Veiga's property at around 3:00 p.m. on February 22, 2015. He had been given a physical description of the woman who had gotten out of the minivan. He was told she had dark hair and dark glasses. He encountered defendant on the property. Her hair was dark brown, she was wearing dark-rimmed prescription glasses; she was wearing a striped shirt.
Donald and Johnathon were brought to the location. Deputy Dunlap gave them a standard admonishment before doing the in-field identification. They both identified defendant as the driver of the minivan. There was no visible damage to the minivan and Oksana did not tell him the key had been damaged. Defendant was in handcuffs. No useable fingerprints were found in the minivan.
Oksana was contacted later that day that her minivan had been found about one mile from her house. There were trash bags and food throughout the minivan that did not belong to her. The key and a door handle had been damaged. Oksana was taken to a location by a sheriff's deputy where she saw defendant in custody. Oksana did not know her and never gave her permission to drive her car. Oksana recalled telling one of the police officers that her key was broken.
DISCUSSION
A. INSTRUCTIONAL ERROR
Defendant claims that the trial court's instruction to the jury on the elements of section 10851 were improper and violated her due process rights. Further, instruction to the jury with CALCRIM No. 376 lessened the prosecution's burden of proof.
1. ADDITIONAL FACTS
Defense counsel objected to the trial court giving CALCRIM No. 376. Defense counsel argued that it made "the burden appear less for the crime charged. It makes it appear rather to be a strict liability crime; that simply being in a vehicle that then turns out to be stolen could be considered enough to be guilty of this crime. And that's not the burden." The prosecutor responded that the instruction advised the jurors that possession of recently stolen property was something it should consider, but that it could not base defendant's guilt solely on the possession of the recently stolen vehicle. It did not convert the crime to a strict liability crime.
The trial court responded that the instruction was only relevant to count 1, the section 10851 charge. In addition, the jury would be instructed they still had to find defendant guilty beyond a reasonable doubt. The trial court believed the instruction was proper.
The trial court further stated, "Instructions on the case as to the charges are 1750 for Count 2 and 1820 for Count 1. Both of those requested by both sides. They will be given." There was no objection by defense counsel to the giving of CALCRIM No. 1820.
2. ANALYSIS
Defendant contends that CALCRIM No. 1820 as given to the jury was insufficient as it failed to advise the jury that she had to have knowledge that the minivan was stolen in order to convict her of violating section 10851. She insists in this case since there was no evidence that she was the person who stole the minivan from the garage, in order to show she had the intent to deprive the owner of the minivan, she had to have knowledge it was stolen. Since the instruction omitted an important element of the offense, her due process rights were violated. Defendant also argues that the error was compounded when the court instructed the jury with CALCRIM No. 376, which advised the jurors that if they found the minivan was recently stolen, they could find her guilty if there was any other slight evidence tending to prove her guilt. This lessened the People's burden of proof and violated her right to due process. These jury instructions allowed the jury to convict defendant based only suspicious circumstances rather than proof beyond a reasonable doubt that she drove a vehicle that she knew was stolen.
a) CALCRIM No. 1820
"An appellate court reviews the wording of a jury instruction de novo and assesses whether the instruction accurately states the law." (People v. O'Dell (2007) 153 Cal.App.4th 1569, 1574 (O'Dell).)
"'"When reviewing a supposedly ambiguous [i.e., potentially misleading] jury instruction, '"we inquire 'whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way' that violates the Constitution."'" [Citation.]' [Citation.] The same test applies under California law. [Citation.] We look to the instructions as a whole and the entire record of trial, including the arguments of counsel. [Citations.] We assume that the '"'jurors [were] intelligent persons and capable of understanding and correlating all jury instructions . . . given' [citation]." [Citation.]' [Citation.] Instructions should be interpreted, if possible, to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation." (People v. Lopez (2011) 198 Cal.App.4th 698, 708 (Lopez).)
Section 10851, subdivision (a) provides, in pertinent part, "[A]ny person who 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, whether with or without intent to steal the vehicle, or any person who is a party or an accessory to or an accomplice in the driving or unauthorized taking or stealing, is guilty of a public offense."
Accordingly, "[t]o establish a defendant's guilt of violating Vehicle Code section 10851, subdivision (a), the prosecution is required to prove that the defendant drove or took a vehicle belonging to another person, without the owner's consent, and that the defendant had the specific intent to permanently or temporarily deprive the owner of title or possession." (O'Dell, supra, 153 Cal.App.4th at p. 1574, fn. omitted.) "The specific intent to deprive [an] owner of possession of his car may be inferred from all the facts and circumstances of the particular case. [Citations.] Once the unlawful taking of the vehicle has been established, possession of the recently taken vehicle by the defendant with slight corroboration through statements or conduct tending to show guilt is sufficient to sustain a conviction of Vehicle Code section 10851." (In re Robert V. (1982) 132 Cal.App.3d 815, 821-822; see also People v. Windham (1987) 194 Cal.App.3d 1580, 1590.) Factors that suffice to sustain a conviction of violating section 10851 include the time, place and manner of possession of the vehicle. (People v. Hallman (1973) 35 Cal.App.3d 638, 641 [defendant's possession of a recently stolen vehicle and driving it in an erratic manner when followed by police supported conviction for violating section 10851].)
CALCRIM No. 1820 as given to the jury provided: "The defendant is charged in Count 1 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. [¶] A taking requires that the vehicle be moved for any distance, no matter how small. [¶] A vehicle includes a passenger vehicle." This instruction included all of the elements in section 10851.
Defendant did not object to CALCRIM No. 1820; in fact, defendant requested the instruction. The People contend this waived any argument that the instruction was incomplete on appeal. The People also contend that defendant failed to object to CALCRIM No. 376 on the same grounds she raises on appeal. Anticipating such an argument, defendant raised in her opening brief that if this court finds the issue has been waived by failing to object, she received ineffective assistance of counsel. We will review the claim.
CALCRIM No. 1820 is a correct statement of the law and defendant has provided no case suggesting that it is incorrect. Defendant asks this court to ignore People v. Green (1995) 34 Cal.App.4th 165, 180 (Green), which states that knowledge is not an element of the crime of section 10851, and find that the jury had to be instructed it had to conclude that she had knowledge that the minivan was stolen. In Green, the court found "'The elements necessary to establish a violation of section 10851 of the Vehicle Code are the defendant's driving or taking of a vehicle belonging to another person, without the owner's consent, and with specific intent to permanently or temporarily deprive the owner of title or possession.'" (Green, at p. 180.) It further held, "[a]ccordingly, knowledge that the vehicle was stolen is not an element of the offense. Such knowledge is merely one of various alternative factors evidencing an intent to deprive the owner of title and possession.'" (Ibid.)
Green properly states the law and the jury was properly instructed in this case. The trial court was not required to instruct the jury on knowledge. The evidence established that defendant was driving a minivan that clearly did not belong to her; Oksana did not give defendant permission to drive the minivan. Defendant drove the minivan near where it was stolen; and when Donald and Johnathon started following her, she sped up. When Donald blocked her way, defendant sped away. She ran several stop signs in an effort to get away. Defendant drove to a friend's property instead of her own and turned over the vehicle to the male passenger. He abandoned the vehicle on the street with the key in it, which Oksana testified had been damaged. Based on the instructions, the jury could reasonably conclude that defendant had the intent to deprive the owner of possession of the minivan. She clearly was not the owner of the minivan and she acted suspiciously when she was confronted by Donald and Johnathon. Her intent to deprive Oksana of the minivan was shown by the evidence; that was all that was required to support defendant's guilt on the section 10851 charge. Defendant does not contend the evidence was insufficient to support the verdict.
Moreover, the jury was not foreclosed from finding that defendant had knowledge that the minivan was stolen. During closing argument, the prosecutor argued that defendant knew she was caught in a stolen van. The prosecution recognized it did not have to prove that defendant stole the minivan from the garage, but her actions when confronted showed her intent. When arguing to the jury that defendant was guilty of receiving stolen property, the prosecutor stated, "When she received the property, she knew that the property had been stolen. . . . She knew it was stolen, that's why she fled." In addition she fled when confronted, and abandoned the minivan. She did not go to her house but instead went to Veiga's property. This was the same circumstantial evidence showing her intent to deprive Oksana of the minivan for the section 10851. Based on the instructions and the argument by counsel, the jury certainly could have concluded she had knowledge the minivan was stolen even without the instruction.
b) CALCRIM No. 376
Moreover, CALCRIM No. 376, did not lessen the People's burden of proof in violation of defendant's due process rights as argued by defendant. CALCRIM No. 376 was given as follows: "If you conclude that the defendant knew she possessed the property and you conclude that the property had in fact been recently stolen, you may not convict the defendant of Count 1, unlawful taking or driving of a vehicle based on those facts alone. However, if you also find that supporting evidence tends to prove her guilt, then you may conclude that the evidence is sufficient to prove she committed Count 1. [¶] The supporting evidence need only be slight and need not be enough by itself to prove guilt. You may consider how, where, and when the defendant possessed the property, along with any other relevant circumstances tending to prove her guilt of Count 1." It further instructed, "Remember that you may not convict the defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt."
In O'Dell, supra, 153 Cal.App.4th 1569, the defendant contended that instruction with CALCRIM No. 376 in his case involving a violation of section 10851 violated his right to due process. He argued that the instruction shifted the burden of proof to him, permitted the jury to disregard defense evidence of innocent possession, and permitted the jury to draw impermissible inferences of guilt without sufficient evidence. (O'Dell, at pp. 1573-1574.) The trial court first noted that the predecessor to CALCRIM No. 376—CALJIC No. 2.15—had repeatedly been approved by the California Supreme Court in the face of constitutional challenges. There was no critical difference between the two instructions. (Id. at pp. 1574-1575.) The court concluded, "The instructions repeatedly informed the jury that each element of the offense must be proved beyond a reasonable doubt, and thus the giving of CALCRIM No. 376 did not remove the issue of intent from the jury. [Citations.] CALCRIM No. 376 itself accurately describes the law regarding mental state inferences to be drawn from possession of stolen property. The instruction did not infringe on appellant's constitutional rights." (Id. at p. 1577.)
In Lopez, supra, 198 Cal.App.4th 698, the court recognized, "Similar to its predecessor CALJIC 2.15, CALCRIM No. 376 prohibits the jury from drawing an inference of guilt based solely on evidence that the appellant knowingly possessed recently stolen property. The jury is allowed, however, to draw an inference of guilt where there is additional supporting evidence, even if the supporting evidence would not be sufficient, by itself, to constitute proof beyond a reasonable doubt. 'As long as the corroborating evidence together with the conscious possession could naturally and reasonably support an inference of guilt, and that inference is sufficient to sustain a verdict beyond a reasonable doubt, we discern nothing that lessens the prosecution's burden of proof or implicates a defendant's right to due process.'" (Id. at p. 710.) It further rejected that it lessened the prosecutor's burden of proof, finding "CALCRIM No. 376 makes it quite apparent that the 'slight' supporting evidence is not to be considered in isolation, but together with all of the other evidence for purposes of determining whether there is proof beyond a reasonable doubt . . . . [Citation.] The instruction expressly requires the jury to be 'convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt.' [Citation.] Thus, CALCRIM No. 376 does nothing to diminish the prosecution's burden of proof." (Id. at p. 711.) It concluded, "we do not find CALCRIM No. 376 reasonably susceptible of being misinterpreted to lower the prosecution's burden of proof . . . , especially when that instruction is viewed in light of all of the court's instructions—specifically, CALCRIM No. 220, which requires the jury to find that the prosecution has proved the defendant guilty beyond a reasonable doubt." (Id. at p. 712.)
CALCRIM No. 376 was properly given in this case. Although defendant contends it foreclosed the jury from determining whether there was a plausible, innocent explanation for her actions; the instruction, along with other instructions, advised the jurors that it must look to all of the evidence in deciding her guilt. The jury was instructed with the standard reasonable doubt instruction that advised them they must "impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves a defendant guilty beyond a reasonable doubt, she's entitled to an acquittal, and you must find her not guilty."
The instructions to the jury required it to consider all of the evidence and determine defendant's guilt beyond a reasonable doubt. CALCRIM No. 376 cautioned the jury not to find defendant guilty solely based on her possession of the minivan. We presume the jury followed the instructions and considered all of the evidence. (Lopez, supra, 198 Cal.App.4th at p. 708.) We reject defendant's instructional error claims.
B. PAROLE REVOCATION FINE
Defendant requests that this court issue an order clarifying that she is not subject to a parole revocation fine pursuant to Penal Code section 1202.45. Here, at the time the trial court imposed defendant's sentence, it stated as follows: "There's a conviction fee and a security fee. Both of these are for year 2015. We will impose the minimums for each one of those for this years. As well as the restitution fine, minimal will be imposed there. There's a parole revocation fine, minimum again. And we'll use the minimum for 2015." Defendant was ordered to serve her sentence in county jail. The minute order from sentencing does not include the imposition of a parole revocation fine.
On March 21, 2016, defendant sent a letter to the trial court asking that it strike the parole revocation fine. That request was denied on April 12, 2016, with the trial court finding that no parole revocation fine was imposed.
"Under subdivision (b) of Penal Code section 1202.4, a trial court must impose 'a separate and additional restitution fine' as part of the judgment of conviction entered against a criminal defendant, 'unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record.' If the 'sentence includes a period of parole,' then the court must also impose a parole revocation fine 'in the same amount as that imposed pursuant to subdivision (b) of [Penal Code s]ection 1202.4.' ([Pen. Code,] § 1202.45.)" (People v. Smith (2001) 24 Cal.4th 849, 851, fns. omitted.)
Here, defendant was not subject to parole because she was ordered to serve her sentence in county jail. Therefore, no parole revocation fine was appropriate. As such, the oral pronouncement is incorrect and conflicts with the minute order. When there is a discrepancy between the court's oral pronouncement of judgment and the minute order, the oral pronouncement of sentence controls. (People v. Farrell (2002) 28 Cal.4th 381, 384, fn. 2.) As such, in an abundance of caution, we must remand in order for the trial to vacate the oral pronouncement of sentence on the parole revocation fine.
DISPOSITION
We remand to the trial court in order for it to vacate the sentence orally pronounced imposing a parole revocation fine pursuant to Penal Code section 1202.45. The judgment is otherwise affirmed in full.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: RAMIREZ
P. J. SLOUGH
J.