Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County. Ct.No. INF060052, Richard A. Erwood, Graham A. Cribbs, and David W. Perkins, Judges.
Judge Erwood presided over the preliminary hearing. Judge Cribbs made the contested ruling on the motion to set aside the information. Judge Perkins presided over the trial and sentencing.
Lewis A. Wenzell, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
RICHLI, J.
Following a jury trial, at which defendant David Daniels eloquently and quite competently represented himself, he was convicted of attempted vehicle theft (Pen. Code, § 664; Veh. Code, § 10851, subd. (a)) (count 1) and misdemeanor vandalizing a motor vehicle (Veh. Code, § 10852) (count 2). In a bifurcated trial, the court found true that defendant had suffered five prior prison terms within the meaning of Penal Code section 667.5, subdivision (b). Immediately thereafter, at defendant’s urgency, defendant waived his right to a probation report and was sentenced to a total of six years in state prison
Throughout the record, defendant is identified as, and identifies himself as, Deiontray Young. His true name, however, appears to be David Daniels.
Defendant appeals from the judgment, claiming (1) the court erred when it failed to advise him of his constitutional rights at the preliminary hearing; (2) the court erred in denying his motion to set aside the information; (3) the court erred in refusing to instruct the jury with the mistake-of-fact instruction (Judicial Council of California Criminal Jury Instructions (CALCRIM) No. 3406); and (4) the court erred in waiving the presentence probation report prior to sentencing him. We reject these contentions and affirm the judgment.
I
FACTUAL BACKGROUND
In the early morning hours of October 16, 2007, Dominga de Santiago drove her Chevrolet Camaro to work at Marshall’s Cleaners in Indio with her cousin and fellow employee Luz de la Garza. She parked her car about one-half block away in a Bank of America parking lot and left it unlocked.
When Santiago and Garza got off work around 12:35 p.m., they walked over to where Santiago’s car was parked. As Garza opened the passenger door, she was surprised to see defendant sitting in the driver’s seat. As Santiago reached to open the driver’s door, it opened “by itself” and defendant stepped out of the car. Defendant said, “It’s okay. It’s okay.” Frightened and startled, Santiago stepped back, and defendant walked away toward some nearby apartments. Later, Santiago noticed that the steering column area was damaged, including a broken lever, holes in the steering column, parts removed, and wires hanging down.
Santiago called 911 and reported a Black male was trying to steal her car. Santiago also reported the person was dressed in all black and wearing baggy style Levi’s with red lines or a red design on them and that he went to a nearby apartment complex.
The transcript of the 911 call was admitted into evidence at trial.
Indio Police Officer Luis Martinez heard the dispatch and responded to the 911 call. Officer Martinez went to the apartment complex mentioned in the call; saw defendant, a person matching Santiago’s description; and detained him. Indio Police Officer Jason Polanco also responded to the 911 call and made contact with Santiago and Garza. Officer Polanco noted that Santiago’s car had been tampered with and opined the car was in the process of being stolen using a hot wire technique. Officer Polanco interviewed Santiago and Garza and then separately took them to where defendant was detained to conduct an infield show-up. Both Santiago and Garza identified defendant as the person who had been in Santiago’s car. Santiago and Garza also identified defendant as the person who attempted to steal Santiago’s car at trial.
II
DISCUSSION
Defendant appealed, and upon his request this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493] setting forth a statement of the case, a summary of the facts, and potential arguable issues and requesting that this court undertake a review of the entire record.
We offered defendant an opportunity to file a personal supplemental brief, and he has done so. In his supplemental brief, defendant claims (1) the court prejudicially erred when it failed to advise him of his constitutional and statutory rights at the preliminary hearing; (2) the court erred in denying his motion to set aside the information because he was held to answer without reasonable or probable cause; (3) the court prejudicially erred in refusing to instruct the jury with the mistake-of-fact instruction (CALCRIM No. 3406); and (4) the court erred in waiving the presentence probation report prior to sentencing him.
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error.
A. Advisement of Rights Prior to Preliminary Hearing
We reject defendant’s first claim of error. On October 18, 2007, at the time of his arraignment, defendant was advised of his statutory and constitutional rights. Among others, defendant was advised of his right to counsel, right to consult counsel, right to appointed counsel if unable to employ private counsel, right to confront and cross-examine witnesses, right to present evidence on his own behalf, right to a jury trial, right to a speedy trial, and right to a probable cause hearing within 48 hours of detention. Defendant was also advised of the charges. Moreover, on October 29, 2007, at a hearing on his motion for self-representation two days prior to the preliminary hearing, defendant was again advised of the bulk of his constitutional and statutory rights. At that hearing, against the court’s recommendation, adamantly insisted on representing himself at trial.
In any event, though it appears the court failed to readvise defendant of his constitutional and statutory rights prior to the preliminary hearing, the error was harmless. (See People v. Crayton (2002) 28 Cal.4th 346, 350; People v. Watson (1956) 46 Cal.2d 818, 836.) Despite the absence of an explicit readvisement, the record as a whole demonstrates both that defendant knew his rights and that an explicit readvisement would not have caused defendant to change his mind about representing himself and proceeding to a jury trial. (See Crayton, at p. 365.) The record reveals that defendant was quite savvy and aware of the legal system and his rights.
B. Motion to Set Aside Information
Defendant next claims that the court erred in denying his second motion to set aside the information, as he was held to answer based on incompetent evidence. We disagree.
As pointed out by defendant, Officer Polanco testified at the preliminary hearing under Proposition 115. Proposition 115 has “considerably narrowed” the purpose of preliminary hearings in this state. (Whitman v. Superior Court (1991) 54 Cal.3d 1063, 1080.) Among other changes, it added section 30, subdivision (b) to article I of the state Constitution, which states, “In order to protect victims and witnesses in criminal cases, hearsay evidence shall be admissible at preliminary hearings, as prescribed by the Legislature or by the people through the initiative process.” (Cal. Const., art. I, § 30, subd. (b); see also Pen. Code, § 872, subd. (b), and Evid. Code, § 1203.1) Proposition 115 allows for a probable cause determination based on hearsay statements of a qualified police officer. Proposition 115 also enacted Evidence Code section 1203.1, which created a preliminary hearing exception to the general requirement that all hearsay declarants be made available for cross-examination. (Whitman,at p. 1070.)
Defendant asserts that Officer Polanco’s Proposition 115 testimony relating to whether or not the victims wanted to press charges was later found to be untrue by defendant’s investigator, and therefore the court erred in denying his motion to set aside the information. We find defendant’s claim to be unmeritorious. There is nothing in the record to suggest Officer Polanco’s preliminary hearing testimony was untrue. At the preliminary hearing, in response to defendant’s question of whether the victim stated she did not wish to pursue the criminal matter, the officer responded, “At the time she said she was unsure. She was afraid of repercussions.” Defendant’s investigator later reported that following an interview with the victims, both the victims purportedly stated that they did not want to press charges against the defendant because “they did not want any problems.” (Capitalization omitted.) Based on the evidence obtained by the defense investigator, we cannot see how the officer’s testimony was untrue or that he lied about a material fact.
In any event, whether or not the victim wanted to press charges was irrelevant at as noted by the trial court at the motion to set aside hearing. It is not uncommon for victims to recant their statements or to not want to pursue the matter. Furthermore, contrary to defendant’s assertion, there is no indication in the record to reveal the officer was untruthful in translating the statements of the victims, who were Spanish-speaking only.
C. Refusal to Give CALCRIM No. 3406
The standard jury instruction on the mistake-of-fact defense, Judicial Council of California Criminal Jury Instructions (2006) CALCRIM No. 3406, provides: “The defendant is not guilty of _____ <insert crime[s]> if (he/she) did not have the intent or mental state required to commit the crime because (he/she) [reasonably] did not know a fact or [reasonably and] mistakenly believed a fact. [¶] If the defendant’s conduct would have been lawful under the facts as (he/she) [reasonably] believed them to be, (he/she) did not commit _____ <insert crime[s]>. [¶] If you find that the defendant believed that _____ < insert alleged mistaken fact[s]> [and if you find that belief was reasonable], (he/she) did not have the specific intent or mental state required for _____ <insert crime[s]>. [¶] If you have a reasonable doubt about whether the defendant had the specific intent or mental state required for _____ <insert crime[s]>, you must find (him/her) not guilty of (that crime/those crimes).” The bench notes instruct: “If the defendant is charged with a general intent crime, the trial court must instruct with the bracketed language requiring that defendant’s belief be both actual and reasonable. [¶] If the intent at issue is specific criminal intent, do not use the bracketed language requiring the belief to be reasonable.” (Bench notes to CALCRIM No. 3406 (2008 ed.) p. 991.)
To prove a violation of attempted Vehicle Code section 10851, subdivision (a), the prosecution must show beyond a reasonable doubt defendant attempted to take or drive the car with the specific intent to either permanently or temporarily deprive the owner of title to or possession of the vehicle. (Pen. Code, § 664; Veh. Code, § 10851, subd. (a).) Defendant contends the trial court was required to instruct on mistake of fact pursuant to CALCRIM No. 3406 as a defense negating the specific intent element of the charge. The court has a duty to instruct sua sponte regarding a defense if it appears the defendant is relying on the defense, or if substantial evidence supports such a defense and the defense is not inconsistent with the defendant’s theory of the case. (People v. Montoya (1994) 7 Cal.4th 1027, 1047.) Here, contrary to defendant’s assertion on appeal, there is no evidence in the record to suggest that defendant relied on the mistake-of-fact defense at trial or that there is substantial evidence to support such a defense. Rather, defendant’s defense was that the People failed to prove beyond a reasonable doubt that defendant committed the crimes, as there was insufficient evidence to support the charges. There was overwhelming evidence to show that defendant did not own the vehicle; that he did not have permission to be in the car; that defendant was inside Santiago’s car; and that he was essentially caught red-handed. There was no evidence that defendant thought the car was his or that he had permission to be in the car tampering with the steering column. Lacking any reliance upon or substantial evidence supporting the defense of mistake of fact, the court had no duty to instruct on this defense.
D. Waiver of Probation Report
Lastly, defendant incorrectly argues that the sentencing judge waived the presentence probation report prior to sentencing. The record clearly establishes that defendant, after being advised of his rights, waived the presentence report rather than the sentencing judge. In fact, the sentencing judge wanted to continue the matter to “the 15th of the next month so the Court could get a complete record . . . .” Even after defendant urged the court to sentence him immediately, the judge noted, “The Court would feel better if we had a probation report. And I’m kind of inclined to go ahead and get one anyway.” Defendant responded, “I understand the Court feels better with that, but I think you [are] familiar with the case, you just looked over the 969b packet, you just made your ruling on the priors being true. I think a probation report wouldn’t be helpful at this time. And I would be willing to waive that and get sentencing out of the way and go with your judgment. [¶] You had enough time to look at the case. I feel like, you know, you already know the sentencing structures, whatever you need.” Defendant thereafter formally waived his right to the probation report prior to sentencing.
We have now concluded our independent review of the record and find no arguable issues.
III
DISPOSITION
The judgment is affirmed.
We concur: McKINSTER, Acting P.J., MILLER, J.