Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF134638, Thomas H. Cahraman, Judge.
Ellen M. Matsumoto, 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, Gil Gonzalez and Gary W. Brozio, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
McKINSTER Acting P. J.
A jury found defendant guilty of receiving a stolen vehicle (Pen. Code, § 496d, subd. (a)), eluding a pursuing peace officer (Veh. Code, § 2800.2, subd. (a)), and resisting a peace officer (Pen. Code, § 148, subd. (a)(1)). The jury also found defendant not guilty of unlawfully driving or taking a vehicle. (Veh Code, § 10851, subd. (a).) Defendant admitted suffering six prior strike convictions. (Pen. Code, §§ 667, subds. (c), (e)(2)(A), 1170.12, subd. (c)(2)(A).) The court sentenced defendant to state prison for an indeterminate term of 25 years to life. Defendant makes two contentions: (1) the trial court erred by not instructing the jury about his defense of having an innocent intent at the time he received the stolen vehicle (CALCRIM No. 1751); and (2) the trial court erred by not staying his sentence (Pen. Code, § 654) for resisting a peace officer because his acts of eluding a peace officer and resisting a peace officer constitute an indivisible course of conduct. We affirm the judgment.
Defendant was found guilty of resisting a peace officer (Pen. Code, § 148, subd. (a)(1)), as a lesser included offense of deterring a peace officer by threats and violence (Pen. Code, § 69).
FACTS
On January 29, 2007, about 3:45 a.m., Angenette prepared to leave her apartment complex for work. Angenette’s apartment complex is located on Iowa Avenue in Riverside. When Angenette went outside, her charcoal gray, 1993 Honda Civic was missing. The previous day, Angenette had parked her vehicle at the complex and she had not given anyone permission to drive it.
Officer Post of the Riverside Police Department was on duty at 3:30 a.m., on January 29, 2007, near the intersection of Blaine Street and Rustin Avenue. Officer Post and his partner, Officer Chinchilla, were completing a domestic violence call. The officers were standing and talking near their patrol vehicles. Defendant, driving the stolen Honda Civic, came toward the officers at a high rate of speed. Officer Chinchilla was nearly hit by the vehicle. The two officers entered their separate patrol vehicles and followed the Honda Civic because they believed defendant might have been intoxicated.
The reporter’s transcript refers to the street as “Ruston”; however, we infer that Officer Post meant “Rustin.”
Defendant continued driving toward the intersection of Blaine Street and Iowa Avenue at approximately 60 to 70 miles per hour. Defendant made several turns. The officers followed defendant and when they caught up to the Honda Civic, they activated their patrol vehicles’ lights and sirens. Defendant was swerving between lanes, and driving through stop signs and solid red lights without stopping. Eventually, defendant stopped the vehicle at Angenette’s apartment complex.
After stopping the vehicle, defendant exited through the driver’s side door and ran through the parking lot. Officers Post and Chinchilla stopped their patrol vehicles and chased defendant. Officer Chinchilla repeatedly yelled at defendant to stop, but defendant continued to run. As Officer Chinchilla caught up to defendant, defendant turned and raised his fists, as though he were planning to fight the officer. Officer Chinchilla swiped defendant’s fists to the side and punched defendant’s rib cage. Officer Chinchilla then forced defendant to the ground. Defendant grabbed Officer Chinchilla’s shirt and extended his arm as to push the officer away from him. Officer Chinchilla commanded defendant to roll onto his stomach. Officer Chinchilla struck defendant’s ribs again with his fist. Defendant released the officer’s shirt, but brought his arms toward his chest. Defendant remained on his side and did not roll onto his stomach. Officer Chinchilla again struck defendant’s ribs with his fist. Defendant said, “All right. All right.” Defendant rolled onto his stomach, but kept his arms near his chest.
Officer Chinchilla straddled defendant and used his weight to keep defendant on the ground. Defendant began jerking his body back and forth, as though trying to knock the officer off him. Officer Chinchilla applied a carotid restraint to defendant. Defendant continued to struggle for approximately 10 seconds before slipping into unconsciousness for approximately five seconds. While defendant was unconscious, Officer Post placed handcuffs on defendant.
After defendant was handcuffed, Officer Post began searching the Honda Civic. Officer Post saw a screwdriver in the vehicle’s ignition. Angenette testified that she did not use a screwdriver to start her vehicle and that she did not know defendant.
Defendant testified that on January 28, 2007, around 11:30 p.m., his son asked him if he wanted to go with him to “pick up a car,” which his friend was giving to him. Defendant went with his son to an apartment complex in Riverside, where they stopped in the parking lot. Defendant said that his son left, but came back about 15 minutes later in a Honda Civic. Defendant drove home in his son’s car and his son drove home in the Honda Civic. When the two arrived home, defendant looked inside the vehicle to see what type of sound system it had. Defendant saw the screwdriver in the ignition and asked his son about it. Defendant’s son admitted to defendant that he had stolen the vehicle. Defendant was angry, but did not call the police because he did not want his son to get in trouble. Defendant testified that he then got into the Honda Civic and planned to take it back to the apartment complex.
Defendant stated that it was about 1:30 a.m. when he began driving back to Riverside. Defendant became lost and had a difficult time locating the apartment complex. Defendant turned down a street, saw the two patrol vehicles, and became nervous. Defendant stated that he continued to drive, but as soon as he saw the lights on the patrol vehicles, he stopped at the apartment complex. Defendant denied leading the officers around various corners and down multiple streets. Defendant admitted running from the officers at the apartment complex because he was scared. Defendant said Officer Chinchilla tackled him. Defendant also testified that he never had a chance to raise his fists in a threatening manner. Defendant also testified that he complied with Officer Chinchilla’s commands and that he did not attempt to strike the officer or grab the officer’s shirt.
When discussing jury instructions, defense counsel did not request the court instruct the jury with CALCRIM No. 1751, regarding the defense of innocent intent when receiving stolen property. For the charge of receiving stolen property, the jury was instructed with CALCRIM No. 1750, which provides the elements of the offense. The jury was also instructed on general and specific intent regarding all of the charges. (CALCRIM No. 252.)
CALCRIM No. 1751 provides: “The defendant is not guilty of receiving stolen property if he intended to return the property to its owner when he received the property. [¶] If you have a reasonable doubt about whether the defendant intended to return the property to its owner when he received the property, you must find him not guilty of receiving stolen property.”
Defendant’s trial counsel mentioned making a motion related to the charge of receiving stolen property. We are unable to locate a motion related to this charge in the record. Nevertheless, we infer the motion did not relate to requesting CALCRIM No. 1751 because the jury instruction coversheet reflects that all requested instructions were given.
CALCRIM No. 1750, as given in defendant’s case, read: “The defendant is charged in Count 2 with receiving stolen property. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant received, concealed, withheld from its owner, or aided in concealing or withholding from its owner property that had been stolen; [¶] AND [¶] 2. When the defendant received, concealed, withheld, or aided in concealing or withholding the property, he knew that the property had been stolen. [¶] Property is stolen if it was obtained by any type of theft, or by burglary or robbery. [¶] To receive stolen 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.”
DISCUSSION
A. CALCRIM No. 1751
1. Error
Defendant contends the trial court erred by not instructing the jury with CALCRIM No. 1751 concerning his defense of having an innocent intent at the time he received the stolen vehicle. Because CALCRIM No. 1751 was not requested at the trial court, we infer that defendant is contending the trial court had a sua sponte duty to instruct the jury with CALCRIM No. 1751. We agree with defendant’s argument, but find the error to be harmless.
“It is settled that, even in the absence of a request, a trial court must instruct on general principles of law that are commonly or closely and openly connected to the facts before the court and that are necessary for the jury’s understanding of the case. [Citations.] The trial court is charged with instructing upon every theory of the case supported by substantial evidence, including defenses that are not inconsistent with the defendant’s theory of the case.” (People v. Montoya (1994) 7 Cal.4th 1027, 1047.) In deciding whether there is substantial evidence, “the trial court does not determine the credibility of the defense evidence, but only whether ‘there was evidence which, if believed by the jury, was sufficient to raise a reasonable doubt.’” (People v. Salas (2006) 37 Cal.4th 967, 982.) In People v. Osborne (1978) 77 Cal.App.3d 472, 476-478, the court held that innocent intent is a defense to a charge of receiving stolen property and, when supported by evidence, a trial court has a sua sponte duty to instruct on that defense.
In the instant case, defendant testified that he took control of the stolen vehicle for the purpose of returning it to its owner. Defendant’s testimony provided substantial evidence of his innocent intent when receiving the stolen vehicle.
Defendant’s trial attorney argued that defendant should be found not guilty of receiving a stolen vehicle because defendant “intended to return it. And that is not criminal intent.” Defendant’s theory as to the charge of receiving a stolen vehicle was that he had an innocent intent at the time he took possession of the stolen vehicle. Accordingly, the trial court should have instructed the jury about defendant’s innocent intent defense (CALCRIM No. 1751) and not doing so was an error.
2. Prejudice
Defendant contends the trial court’s error was prejudicial. We disagree.
“[A]n instructional error that improperly describes or omits an element of an offense, or that raises an improper presumption or directs a finding or a partial verdict upon a particular element, generally is not a structural defect in the trial mechanism that defies harmless error review . . . such an error, like the vast majority of other constitutional errors, falls within the broad category of trial error subject to Chapman review.” (People v. Flood (1998) 18 Cal.4th 470, 502-503; see also People v. Salas, supra, 37 Cal.4th at p. 984 [applying the Chapman standard of review to the failure to instruct on an affirmative defense].) Accordingly, we must determine “whether it appears beyond a reasonable doubt that the error did not contribute to this jury’s verdict.” (People v. Flood, supra, at p. 504, citing Chapman, supra, 386 U.S. at p. 24.)
Chapman v. California (1967) 386 U.S. 18 (Chapman).
In the context of a charge of receiving a stolen vehicle, the defense of an innocent intent means the defendant did not have the requisite general criminal intent. (See People v. Wielograf (1980) 101 Cal.App.3d 488, 494 [discussing innocent intent].) However, the jury’s verdict in this case shows the jury decided that factual issue adversely to defendant. By finding defendant guilty of receiving a stolen vehicle, the jury necessarily found defendant had the requisite general criminal intent. The jury was instructed on the elements of receiving stolen property (CALCRIM No. 252) and general criminal intent (CALCRIM No. 1750). CALCRIM No. 252 instructed the jury that the crime of receiving stolen property requires both the act and general criminal intent. Therefore, the jury could not have found defendant guilty of receiving the stolen vehicle without necessarily finding that he had the general criminal intent and that he received, concealed, and/or withheld the vehicle from the victim or aided in the concealing or withholding of the vehicle from the victim. (Pen. Code, § 496d, subd. (a).) The jury’s finding that defendant was guilty of receiving the stolen vehicle is inconsistent with a defense theory of innocent intent. Because the jury rejected the defense of innocent intent, we conclude beyond a reasonable doubt that the trial court’s failure to instruct with CALCRIM No. 1751 did not contribute to the jury’s verdict.
Defendant contends the trial court erred by not staying his sentence (Pen. Code, § 654) for resisting a peace officer because his acts of eluding a peace officer (Veh. Code, § 2800.2, subd. (a)) and resisting a peace officer (Pen. Code, § 148, subd. (a)(1)) constituted an indivisible course of conduct.
Penal Code section 654 provides that a trial court may not punish a defendant under more than one code section if the crimes result from an indivisible course of conduct. (People v. Siko (1988) 45 Cal.3d 820, 823.) Whether a course of conduct is divisible is determined by the intent and objective at the time of the offense. (People v. Hawkins (2002) 98 Cal.App.4th 1428, 1442-1443.) “‘[I]f all the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once.’ [Citation.]” (People v. Evers (1992) 10 Cal.App.4th 588, 602.) “However, if the defendant harbored ‘multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct. [Citation.]’ [Citations.]” (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)
“Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. [Citations.] Its findings will not be reversed on appeal if there is any substantial evidence to support them. [Citations.] We review the trial court’s determination in the light most favorable to the [People] and presume the existence of every fact the trial court could reasonably deduce from the evidence. [Citation.]” (People v. Jones, supra, 103 Cal.App.4th at p. 1143.)
Defendant’s conviction for resisting a peace officer (Pen. Code, § 148, subd. (a)(1)) is not based on defendant’s vehicular flight, but on defendant resisting Officer Chinchilla’s commands once the vehicle pursuit ended. After defendant fled, he ran through the apartment complex parking lot. Officer Chinchilla pursued defendant on foot. When Officer Chinchilla caught up to defendant, defendant “quickly turned around and raised his arms up with his fists up in front of his chest, like he was going to fight.” At that point, Officer Chinchilla struck defendant. Defendant grabbed Officer Chinchilla’s shirt and refused to follow the officer’s commands.
Officer Chinchilla is the named victim.
The foregoing evidence supports a finding that when defendant turned around and raised his fists, his objective changed from fleeing to harming the officer because defendant likely realized that his attempt to flee was futile. Accordingly, the evidence supports a finding that defendant harbored a separate objective, independent of and not merely incidental to his objective of fleeing and, therefore, the trial court properly punished defendant for each violation committed in pursuit of each objective even though the violations share common acts or were part of an otherwise indivisible course of conduct.
DISPOSITION
The judgment is affirmed.
We concur: GAUT J., KING J.