Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD210395, Bradford L. Andrews, Judge. Affirmed.
O'ROURKE, J.
A jury convicted Alma Cruz of unlawfully taking a vehicle (Veh. Code, § 10851, subd. (a), count 1) and possession of burglary tools (Pen. Code, § 466, count 3). It found Cruz not guilty of possession of a stolen vehicle (§ 496d, count 2). In bifurcated proceedings, the trial court found true an allegation that Cruz had a prior conviction for burglary. (§ 459.) The court sentenced her to the middle term of 4 years in prison on count 1, and a concurrent term of 180 days local custody on count 3.
All statutory references are to the Penal Code unless otherwise stated.
Cruz contends: (1) the trial court erroneously admitted into evidence her codefendant's statement to the police — despite the court's suppression order — thus violating her confrontation rights under the Sixth and Fourteenth Amendments of the federal Constitution; (2) insufficient evidence supported the count 1 conviction; and (3) the jury was misinstructed on the elements of possession of burglary tools. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On November 27, 2007, Ralph Casteel parked and locked his Saturn station wagon (the Saturn) outside his home in San Ysidro and kept the key. The next morning the Saturn was missing. In the early hours of November 29, 2007, the police contacted him to identify his vehicle and the persons found in it. Casteel told the police he had never met Cruz and her companion, Christian Madueno, and did not give them permission to take the Saturn.
Cruz and Madueno were tried together.
San Diego Police Officers James Teer and Brian French were on duty in National City on November 28, 2007. At approximately 12:40 a.m., Officer Teer saw the Saturn drive in front of him. He checked its license plate number in his computer. The Saturn had been reported stolen from a location approximately 20 miles away. Officer Teer pulled the Saturn over. Madueno was the driver and Cruz the passenger. Officer Teer found a set of three non-Saturn "shaved" keys that were filed smoothly to eliminate grooves. One key operated the Saturn's ignition. Officer Teer saw the key was inserted approximately half-way in the ignition, which appeared loose. He concluded that a passenger in the Saturn could see the ignition was damaged.
Officer Teer ordered Cruz to step outside the vehicle, put her in handcuffs and questioned her at the curbside without first giving her Miranda warnings (Miranda v. Arizona (1966) 384 U.S. 436). Cruz initially claimed the backpack was hers. She also told Officer Teer that she and her boyfriend, Madueno, "cross[ed] the border from Mexico, and they walk[ed] to a K-Mart to buy a sweater. And when she was walking back, she noticed the... stolen vehicle parked near an apartment complex. And she stated she noticed the headlight on the vehicle was on. So she walked up to the car and noticed the door was unlocked, so she opened the door. And she said she heard the beeping on the door, and noticed that the ignition was on. And she used that shaved key that she had to start the vehicle." Officer Teer arrested Cruz. While he was transporting her to the Las Colinas detention facility, she said she wanted to change her earlier curbside statements. Officer Teer gave her Miranda warnings and according to Officer Teer, "She said pretty much the same story. [She and Madueno] went to K-Mart. And she was waiting in line, Mr. Madueno went outside. And after she paid for the sweater, she came outside and saw Mr. Madueno waiting in that stolen car for her." Officer Teer testified that Cruz said she knew the vehicle did not belong to Madueno. According to Officer Teer, Cruz "said she noticed the shaved key in the ignition, and she believed the vehicle [was] probably stolen."
Officer French testified as to the keys found in Cruz's backpack that based on his training and experience as a police officer, his training at the Police Academy, and a ten-hour class on lock manipulation and lock-defeating, that people who break into vehicles do so by using devices including keys that have been filed down to manipulate the locks so as to enter and start the vehicle.
Cruz moved in limine to exclude Cruz's curbside statements from evidence. She argued: "Officer Teer without giving [Cruz] her Miranda rights ordered her sit [sic] on the curb and asked her about the stolen vehicle. Cruz indicated she stole the vehicle." At Cruz's request, the court conducted an Evidence Code section 402 hearing in which Officer Teer testified as outlined above regarding Cruz's curbside statements given before the Miranda warnings; and her changed statements following the Miranda warnings. Initially, the court appeared to suppress all Cruz's statements before she was given the Miranda warnings. But the court narrowed the scope of the suppression order in this follow-up exchange:
The court initially ruled: "But when [Officer Teer] started to question [Cruz] concerning her connection to the vehicle, [Officer Teer], at that point in time, from [his] testimony, had already received information that the vehicle was stolen; had already had some discussion — or his partner had had some discussion with Mr. Madueno, because he was clarifying with her statements made by — or to confirm statements made by Mr. Madueno, although he didn't specify... what those statements were. [¶] And further, by the time that he questioned her, while she was either seated at the curb or in the backseat of the car, at that point in time it appears that he was then aware also of the shaved keys in the backpack, which she claimed ownership. [¶] So I believe that whether the officer said the magic words, 'you're under arrest' or not, certainly there was probable cause for her arrest at that time, and that those statements were taken in violation of Miranda. [¶] With — and I'm going to order that those statements be suppressed.
"[Cruz's counsel]: So, your honor, just to clarify — this is my [sic] own personal edification here — the statement regarding the original set of facts, that statement is suppressed; is that correct?
"The Court: Yes.
"[Cruz's counsel]: Thank You.
"The Court]: That was the one taken — where she tells the officer, 'I took the car, and then Mr. Madueno got in the car.'
"[Cruz's counsel:] Okay.
"The Court: That — That statement is suppressed."(RT 45)!
The court admitted into evidence Cruz's statements about the backpack and her statements made en route to Las Colinas, finding that Cruz initiated the conversation with the police and there was "sufficient attenuation from the original Miranda violation."
During the same Evidence Code section 402 hearing, the court recognized that under Bruton v. United States (1968) 391 U.S. 123 (Bruton)and People v. Aranda (1965) 63 Cal.2d 518 (Aranda),Madueno's statement inculpating his codefendant was inadmissible. The parties agreed to solve the problem by permitting the prosecutor to ask Officer Teer leading questions at trial about whether Cruz initially claimed, and later disavowed, ownership of the backpack.
To the extent the judicially declared rule of practice set forth in Aranda, supra, 63 Cal.2d 518, requires the exclusion of relevant evidence that would not be excluded under federal constitutional law, it was abrogated in 1982 by Proposition 8. (People v. Fletcher (1996) 13 Cal.4th 451.) To the extent Aranda corresponds with Bruton, supra,391 U.S. 123, it was not abrogated by Proposition 8. (People v. Orozco (1993) 20 Cal.App.4th 1554, 1564.)
DISCUSSION
I.
A.
During Officer Teer's testimony, this exchange took place:
"[Prosecutor]: Did you ever learn the nature of Mr. Madueno's and Miss Cruz's relationship?
"[Officer Teer]: Yeah. They told me they were —
"[Cruz's counsel]: Objection. Hearsay, your honor. Motion to strike the phrase 'They told.'
"The Court: The objection is overruled. You may answer that question.
"[Officer Teer]: They told me they were boyfriend and girlfriend.
"[Counsel for Madueno]: Objection. Vague as to who specifically.
"The Court: Did each of them tell you that, or did one of them?
"[Officer Teer]: He told me that, and she also told me that.
"The Court: Both of them stated that?
"[Officer Teer]: Yes, Sir."
Cruz contends the foregoing testimony violated the trial court's suppression order and infringed her rights under the Fifth and Fourteenth Amendments of the federal Constitution.
A person interrogated by law enforcement officers after being taken into custody must first be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him and that he has a right to the presence of an attorney, either retained or appointed. (Miranda, supra, 384 U.S. 436.) Statements taken in violation of this rule are generally inadmissible. (Stansbury v. California (1994) 511 U.S. 318, 322.) However, police officers are not required to administer Miranda warnings to everyone they question. (Miranda, supra, 384 U.S. at p. 533.) For example, an officer may detain a person to ask a moderate number of questions to determine the person's identity and to try and obtain information confirming or dispelling the officer's suspicions without giving a Miranda warning. (People v. Farnam (2002) 28 Cal.4th 107, 180.)
The contention fails because, as outlined above, the trial court limited its suppression order to Cruz's incriminating statement: "I took the car, and then Mr. Madueno got in the car." The order did not encompass Cruz's curbside statement that Madueno was her boyfriend. In any event, the latter statement was admissible because the trial court ruled that Cruz's post-Miranda statements made en route to Las Colinas were admissible. Officer Teer testified that "[Cruz] said pretty much the same story" as at the curbside. In interpreting the record to support the judgment, and in the absence of contrary evidence, we logically infer that Cruz, after she was given Miranda warnings, repeated that Madueno was her boyfriend. Our conclusion is supported by the fact that the trial court asked Officer Teer whether Cruz or Madueno told him about their relationship. Obviously, the court did not believe that the answer to that question would violate its own suppression order. Moreover, the parties did not object to Officer Teer's testimony on that basis but rather on the basis of hearsay and vagueness.
Even assuming Officer Teer's testimony violated the court's suppression order, we would conclude that any error was harmless beyond a reasonable doubt under the standard set forth in Chapman v. California (1967) 386 U.S. 18, 24. (People v. Cunningham (2001) 25 Cal.4th 926, 994.) Cruz's conviction for unlawful taking of a vehicle did not hinge on her status as Madueno's girlfriend, but rather on evidence that Casteel did not give her permission to take his car. She was detained 20 miles from where the car was stolen, several hours after Casteel had discovered it was missing. Her backpack contained a shaved key similar to the one the police found in the ignition and those found on the key ring. Officer French testified shaved keys often were used in car thefts. The jury reasonably could conclude that Cruz knew of Madueno's intentions before he committed the crime, intended to aid and abet Madueno in unlawfully taking the vehicle, and did in fact "facilitate, promote, encourage or instigate the commission of the crime." (CALCRIM No. 401.) In light of the entire record, we conclude Officer Teer's testimony regarding Cruz's relationship with Madueno did not contribute to her conviction, and admission of that testimony was harmless beyond a reasonable doubt.
B.
Relying on Crawford v. Washington (2004) 541 U.S. 36, Cruz contends Madueno's statement that she was his girlfriend violated her confrontation right under the Sixth Amendment of the federal Constitution. She also contends that under the Bruton-Aranda doctrine (Bruton, supra,U.S. 123; Aranda, supra, 63 Cal.2d 518), because Madueno was an accomplice, he was unavailable to testify. Accordingly, the admission of Madueno's assertedly inculpatory statement was prejudicial error.
Under Crawford, if a witness's statement is found to be testimonial, the witness "must testify at trial and be subject to cross-examination unless the witness is unavailable and the defendant has had a prior opportunity for cross-examination." (People v. Mitchell (2005) 131 Cal.App.4th 1210, 1224.) The People concede Madueno's statement was testimonial because it was made in response to police questioning; Madueno was unavailable to testify, and Cruz did not have an opportunity to cross-examine him; therefore, his statement was inadmissible under Crawford. Nonetheless, the People contend any error in admitting Madueno's statement was harmless beyond a reasonable doubt. (Mitchell, at p. 1225.) We agree with the People, based on our above harmless error analysis.
The Bruton-Aranda cases "hold it is error in a joint trial of two or more defendants to admit the statement or confession of a nontestifying defendant that inculpates another defendant or defendants." (People v. Olguin (1994) 31 Cal.App.4th 1355, 1374 (Olguin), overruled on another ground in People v. Cromer (2001) 24 Cal.4th 889, 901, fn. 3.) The California Supreme Court explained the scope of the Bruton-Aranda rule: "[W]hat is material for Bruton-Aranda analysis is not how the statement under review should be classified in the abstract — as a confession, an admission, or even an exculpatory declaration — but rather whether on the facts of the individual case it operates to inculpate the other defendant." (People v. Anderson (1987) 43 Cal.3d 1104, 1123.) "The rationale for Bruton-Aranda is that self-incriminating extrajudicial statements by a nontestifying codefendant inculpating another defendant are generally unreliable and therefore violate that defendant's right to confrontation and cross-examination." (Olguin, supra, at p. 1374.) "It is not the case, however, that a codefendant's out of court statement inculpating the other defendant is per se unreliable and hence inadmissible under the Confrontation Clause. [Citation.] Rather, such a statement is only presumptively unreliable." (Anderson, supra, at p. 1121.) The statement "may nonetheless meet Confrontation Clause reliability standards if it is supported by a 'showing of particularized guarantees of trustworthiness.' " (Lee v. Illinois (1986) 476 U.S. 530, 543.)
We conclude the Bruton-Aranda rule does not apply here. Madueno's bare statement — that Cruz was his girlfriend — did not inculpate Cruz because it provided no information about the crime that could be imputed to Cruz. Moreover, there is no evidence Madueno made the statement in the context of attempting to "mitigate the appearance of his own culpability by spreading the blame, or to overstate [Cruz's] involvement" in the crime. (Lee v. Illinois,supra, 476 U.S. at p. 545.) Finally, as the United States Supreme Court noted, "Obviously, when codefendants' confessions are identical in all material respects, the likelihood that they are accurate is significantly increased." (Id., at p. 544.) Officer Teer testified that both Cruz and Madueno stated they were in a relationship. Therefore, we conclude that the presumption of unreliability of Madueno's statement was overcome by Cruz's own admission, and any error was harmless. (Idaho v. Wright (1990) 497 U.S. 805, 823.)
C.
In reviewing a challenge to the sufficiency of the evidence, we examine "the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence" from which "a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Snow (2003) 30 Cal.4th 43, 66.) We are mindful that it " ' "is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends." ' " (People v. Smith (2005) 37 Cal.4th 733, 739.) We do not reweigh the evidence or redetermine issues of credibility. (People v. Martinez (2003) 113 Cal.App.4th 400, 412.)
There is no evidence that Cruz drove the car; therefore, the issue is whether there is sufficient evidence that she aided and abetted in its theft. A defendant's mere presence at the scene of a crime does not support a conclusion that she aided and abetted its commission. The California Supreme Court explained, " 'A person aids and abets the commission of a crime when he or she, (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime.' " (People v. Hill (1998) 17 Cal.4th 800, 851 (Hill); People v. Cooper (1991) 53 Cal.3d 1158, 1164.) A Court of Appeal further explained, "Neither mere presence at the scene of a crime, nor the failure to take steps to prevent a crime, is alone sufficient to establish that a person is an aider and abettor. Such evidence may, however, be considered together with other evidence in determining that a person is an aider and abettor." (In re Jose T. (1991) 230 Cal.App.3d 1455, 1460.)
In considering a charge of vehicle theft, there must be proof of more than mere presence in the vehicle; instead, the defendant must have known the vehicle was unlawfully acquired at a time when he or she could have in some way aided or assisted in the driving. (People v. Clark (1967) 251 Cal.App.2d 868, 874 (Clark).) In Clark, the defendant testified he did not know the car was stolen until after a police officer began chasing the car. During the ensuing high-speed chase, the defendant could not get out of the car and there was no evidence he helped the driver. (Id. at pp. 873-874.) The court concluded that since the evidence was insufficient to show the defendant participated in the original taking or that he knowingly accepted a ride in a stolen car, and instead was consistent with being an innocent passenger in the car, his conviction for unlawful taking of a vehicle could not stand. (Id. at p. 874.)
Based on the evidence and inferences drawn from the evidence, Cruz was more than an innocent passenger in the car. She aided and abetted the commission of the crime as discussed above in the harmless error analysis. Moreover, Cruz knowingly accepted a ride in a stolen vehicle. As she told Officer Teer, she and Madueno did not arrive at K-Mart in a car, and she knew the Saturn did not belong to Madueno. She suspected it was stolen. Further, her backpack contained a shaved key similar to those found on the key ring with the key used to start Casteel's car, and which Officer French testified was often used in car thefts. A jury reasonably could infer that Cruz acted suspiciously by initially claiming and later denying that the backpack was hers.
II.
Cruz contends the trial court prejudicially erred when it instructed regarding the elements of possession of burglary tools (§ 466) in the modified language of the statute, which misstated the intent required for the offense.
Section 466 states, "Every person having upon him or her in his or her possession a picklock, crow, keybit, crowbar, screwdriver, vise grip pliers, water-pump pliers, slidehammer, slim jim, tension bar, lock pick gun, tubular lock pick, bump key, floor-safe door puller, master key, ceramic or porcelain spark plug chips or pieces, or other instrument or tool with intent feloniously to break or enter into any building, railroad car, aircraft, or vessel, trailer coach, or vehicle as defined in the Vehicle Code, or who shall knowingly make or alter, or shall attempt to make or alter, any key or other instrument named above so that the same will fit or open the lock of a building, railroad car, aircraft, vessel, trailer coach, or vehicle as defined in the Vehicle Code, without being requested to do so by some person having the right to open the same, or who shall make, alter, or repair any instrument or thing, knowing, or having reason to believe that it is intended to be used in committing a misdemeanor or felony, is guilty of a misdemeanor. Any of the structures mentioned in Section 459 shall be deemed to be a building within the meaning of this section."
Outside of the presence of the jury, the prosecutor explained that there was no CALCRIM jury instruction regarding this offense, and proposed instruction in the language of the statute. The trial court noted that some tools listed in the statute were inapplicable to this case and told the prosecutor, "Shorten the subject. Clean it up so that they — it's clear what you're referring to." Thereafter, the court read to the parties a version of the modified instruction that was substantially similar to that given at trial:
"The defendants are charged in Count 3 with possession of burglary tools. [¶] Every person having upon him or her or in his or her possession any instrument or tool with intent feloniously to start or drive away a vehicle, or who shall knowingly make or alter, or shall attempt to make or alter, any key or other instrument named above so that the same will fit or open the lock of a vehicle, without being requested to do so by some person having right to possess or operate the same, or who shall make, alter, or repair any instrument or thing, knowing or having reason to believe that it is intended to be used in committing a misdemeanor or felony, is guilty of Count 3." Immediately afterwards this discussion took place:
"[The court]: Does that work?
"[Prosecutor]: Sounds good to me.
"[Madueno's counsel]: Me too.
"[Cruz's counsel]: That's fine.
...
[The court]: Okay. I think that that modification, then, narrows it down and takes out reference to all the things that aren't relevant to the facts here, if that's agreeable.
"[Prosecutor]: Yes.
"[Madueno's counsel]: Yes.
"[Cruz's counsel]: Yes.
[The court]: Any other modifications or alterations?
[The prosecutor]: No. I believe that's it."
As a preliminary matter, when the instruction was discussed, Cruz agreed to the modification and did not object to the court's proposed wording. Therefore, any error is waived. (People v. Bolin (1998) 18 Cal.4th 297, 326.)
In any event, any error was harmless under the standard set forth in Chapman v. California, supra,386 U.S. at p. 24. "When a trial court, in instructions to the jury, incorrectly defines one of the elements of the crime with which the defendant is charged, the defendant's conviction of that crime can be affirmed on appeal only if the reviewing court is persuaded beyond a reasonable doubt that the error did not 'contribute to' the verdict.... the reviewing court must ask whether the guilty verdict actually rendered in this trial was 'surely unattributable to the error.' [Citation.] This is because the Sixth Amendment right to jury trial means that the jury, and not a reviewing court, must find beyond a reasonable doubt every fact needed to convict." (People v. Harris (1994) 9 Cal.4th 407, 455 conc. and dis. Opinion of Kennard, J.)
As applicable here, for the commission of a section 466 offense, the charged person must possess a "master key... or other instrument or tool with intent feloniously to break or enter into any... vehicle." The trial court's instruction was erroneous because it substituted the required intent with an intent "feloniously to start or drive away a vehicle." But the error was harmless because the evidence presented to the jury supported a finding that Cruz had the intent to use burglary tools to feloniously break or enter into a vehicle. Casteel testified his car was locked and he kept the key and did not give Cruz permission to take it. The police found in Cruz's backpack a shaved key similar to that found in the Saturn's ignition. The police testified that individuals who break into secured vehicles often use shaved keys. Cruz's initial claim of ownership of the backpack and subsequent denial of it permits an inference that she was aware her possession of the shaved key would point to her intent to use it to break into a vehicle. On these facts and relying on other instructions given, the jury reasonably found that Cruz possessed burglary tools within the meaning of section 466.
The jury was instructed with CALCRIM No. 376 regarding "Possession of Recently Stolen Property as Evidence of a Crime" as follows:
DISPOSITION
The judgment is affirmed.
WE CONCUR: HUFFMAN, Acting P. J., IRION, J.
"If you conclude that the defendants knew that he or she possessed property and you conclude that the property had in fact been recently stolen, you may not convict the defendant of Unlawfully Taking or Driving of a Vehicle or Possession of a Stolen Vehicle based on those facts alone. However, if you also find that supporting evidence tends to prove his or her guilt, then you may conclude that the evidence is sufficient to prove he or she committed the crimes charged in Counts One or Two.
"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 his or her guilt of Counts One or Two.
"Remember that you may not convict the defendants of any crime unless you are convinced that each fact essential to the conclusion that the defendants are guilty of that crime has been proved beyond a reasonable doubt."