Opinion
H050226
07-31-2024
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL JAMES DUVAL, Defendant and Appellant.
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. C2107605
BROMBERG, J.
Defendant Michael Duval was convicted of unlawfully taking a vehicle in violation of Vehicle Code section 10851, subdivision (a) (Section 10851(a)). Duval now appeals, arguing that the trial court gave a misleading pinpoint instruction, improperly admitted evidence of a prior crime, and improperly refused to bifurcate trial of a sentencing allegation. As explained below, we reject these arguments and affirm the judgment.
The facts below are drawn from the evidence presented at trial.
A. The Charges
In April 2021, a white utility van was stolen from a restaurant in Sunnyvale. Two months later, in June 2021, police were dispatched to investigate a report of a suspicious vehicle in a hotel parking lot in Santa Clara. The first officer to arrive saw Duval standing next to a utility van partially concealed in the bushes. The van was black, but the paint was uneven; underneath the black paint the van was white; and there was black paint on the curb, the roadway, and the bushes as well as paint cans, a spray paint container, and a spray-painting tool halfway filled with black paint in the area. And Duval's hands were covered with black paint.
The van also had a license plate that was not registered to it, and when officers ran the van's vehicle identification number, they learned that the van had been reported stolen. When informed that the van was stolen, Duval expressed surprise and said that he had bought the van for $500 from "some guy" in San Jose a month and a half earlier.
Duval was arrested and charged with unauthorized use of a vehicle in violation of Section 10851(a). In addition, the complaint alleged that Duval had a prior felony conviction under Penal Code section 496d for receiving a stolen motor vehicle.
B. The Trial
1. The 2019 Conviction
At trial, the prosecution moved in limine to introduce evidence that Duval was convicted in 2019 of receiving a stolen motor vehicle in violation of Penal Code section 496d. Duval opposed admission of this evidence and requested bifurcation of trial of the sentencing allegation concerning the conviction. The trial court granted the prosecution's motion, ruling evidence of the 2019 conviction admissible under Evidence Code section 1101, subdivision (b) because it showed a plan or scheme and was not unduly prejudicial. Additionally, in light of that ruling, the trial court denied Duval's bifurcation request.
2. The Section 10851(a) Instruction
At trial, the prosecutor elected to prosecute Duval for violating Section 10851(a) under a post-theft driving theory. Accordingly, the trial court gave the jury the standard Judicial Council jury instruction on Section 10851(a) concerning post-theft driving. In addition, for reasons not specified in the record, the trial court included a pinpoint instruction: "Knowledge that the vehicle was stolen, while not an element of the offense, may constitute evidence of the defendant's intent to deprive the owner of title and possession."
The complete instruction on Section 10851(a) was: "Felony unlawful taking or driving of a vehicle, Vehicle Code Section 10851(a) and (b). The defendant is charged 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: (1) the defendant drove someone else's vehicle without the owner's consent; and (2) when the defendant drove the vehicle, he intended to deprive the owner of possession or ownership of the vehicle for any period of time. A vehicle includes a van. [¶] . . . [¶] Knowledge that the vehicle was stolen, while not an element of the offense, may constitute evidence of the defendant's intent to deprive the owner of title and possession."
3. Verdict and Sentencing
The jury found Duval guilty of violating Section 10851(a) and found true the allegation of a prior conviction for receiving a stolen vehicle in violation of Penal Code section 496d. The trial court sentenced Duval to two years in jail. Duval timely filed a notice of appeal.
II. Discussion
A. The Pinpoint Instruction
Duval's primary argument on appeal is that the trial court erred in giving the pinpoint instruction on knowledge because the instruction negated an element of Section 10851(a) and confused the jury concerning the intent required for conviction of that offense. Reviewing the instruction de novo (People v. Thomas (2023) 14 Cal.5th 327, 361), we conclude that the instruction was proper.
Under Section 10851(a), "[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," is guilty of a criminal offense. This section"' "proscribes a wide range of conduct." '" (People v. Jackson (2018) 26 Cal.App.5th 371, 377.) By prohibiting the taking of another's vehicle without consent, it proscribes traditional auto theft. (People v. Garza (2005) 35 Cal.4th 866, 871.) In addition, by prohibiting the driving of another's vehicle without consent, Section 10851(a) proscribes "post-theft driving" as well as "joyriding"-that is, driving a vehicle with the intent to deprive its owner of possession temporarily. (People v. Gutierrez (2018) 20 Cal.App.5th 847, 854.) As the Supreme Court has recognized, Section 10851(a) 's broad reach has an important practical impact: It "relieve[s] prosecutors of the burden they had (and have), in a prosecution for auto theft under Penal Code section 487, to prove the intent to steal." (People v. Bullard (2020) 9 Cal.5th 94, 106.)
The trial court correctly instructed the jury on the elements of Section 10851(a). Using the Judicial Council's pattern instruction, the court instructed the jury that to convict Duval under this section the prosecution must "prove that (1) the defendant drove someone else's vehicle without the owner's consent; and (2) when the defendant drove the vehicle, he intended to deprive the owner of possession or ownership of the vehicle for any period of time." (CALCRIM No. 1820.) This instruction tracks the language of Section 10851(a), which, as noted above, applies to any person who (1) "drives . . . a vehicle not his or her own, without the consent of the owner thereof' and (2) has an "intent either to permanently or temporarily deprive the owner thereof of . . . possession of the vehicle." Duval does not assert any error in this portion of the instruction.
Due to the number of ways a violation of Vehicle Code section 10851 can be established, there are alternative jury instructions that may be given according to the evidence and the prosecution's theory of the case. (See CALCRIM No. 1820; People v. Salvato (1991) 234 Cal.App.3d 872, 879.)
Instead, Duval challenges the pinpoint instruction that the trial court added to the pattern instruction. We find no error. In the pinpoint instruction the trial court instructed the jury that "[k]nowledge that the vehicle was stolen, while not an element of the offense, may constitute evidence of the defendant's intent to deprive the owner of title and possession." Duval objects to the observation that knowledge that the vehicle was stolen is "not an element of the offense" on the ground that Section 10851(a) requires knowledge that a vehicle was stolen. In fact, the statute requires only an "intent either to permanently or temporarily deprive the owner" of title or possession, which may be "with or without intent to steal the vehicle." (Section 10851(a), italics added.) Accordingly, Court of Appeal decisions have concluded that under Section 10851(a) knowledge a vehicle was stolen is "merely one of various alternative factors evidencing an intent to deprive the owner of title and possession" (People v. Green (1995) 34 Cal.App.4th 165, 180), and that "[k]nowledge that the vehicle was stolen, while not an element of the offense, may constitute evidence of the defendant's intent to deprive the owner of title and possession." (People v. O'Dell (2007) 153 Cal.App.4th 1569, 1574 (O'Dell).) The trial court's pinpoint instruction appears to be taken verbatim from the last quoted decision.
Nonetheless, Duval contends that the pinpoint instruction was misleading. Although the instruction merely observed that knowledge a vehicle was stolen may evidence an intent to deprive the vehicle's owner of title or possession, Duval contends that it led the jury to convict him without finding such an intent. Duval reaches this remarkable conclusion through a series of inferences. He begins by observing that Section 10851(a) requires an intent to deprive a vehicle's owner of title or possession. Duval argues that this requirement implicitly requires knowledge of the owner's right to the vehicle in question. Then, because Duval contended at trial that he owned the van at issue in this case, he asserts that the jury could had knowledge of the true owner's right to title or possession only by finding that he knew the van was stolen. However, because the pinpoint instruction noted that knowledge a vehicle was stolen is not an element of Section 10851(a), Duval asserts that the jury may have inferred that it did not need to find that he knew the van here was stolen. Therefore, Duval concludes, the jury may have convicted him without determining that he know that he was not the lawful owner of the van and, thus, lacked an intent to deprive the van's owner of title or possession.
In challenging the pinpoint instruction as misleading, Duval bears the burden of demonstrating" a reasonable likelihood that the jury understood the instruction in the way asserted by the defendant.'" (People v. Covarrubias (2016) 1 Cal.5th 838, 905.) In deciding whether this burden has been satisfied, reviewing courts"' "assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given." [Citation.]'" (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088 (Ramos).) In addition, instructions are reviewed "in context of the entire charge of jury instructions rather than in artificial isolation" (O'Dell, supra, 153 Cal.App.4th at p. 1574), and they are" 'interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation.'" (Ramos, supra, at p. 1088)
Duval has not shown a reasonable likelihood that the pinpoint instruction misled the jury. In light of the entire charge, no reasonable jury could have inferred from the pinpoint instruction that there was no need to find that Duval had an intent to deprive the van's owner of possession. The instruction on Section 10851(a) expressly informed the jury that the prosecution had to prove that Duval "intended to deprive the owner of possession or ownership of the vehicle." The instruction on specific intent reiterated this requirement: "The specific intent required for the crime of Vehicle Code section 10851(a) is intent to deprive the owner of possession or ownership for the vehicle for any period of time." In addition, far from suggesting that the jury could find such intent absent knowledge that the van in question was stolen, the prosecutor argued that Duval knew that the van was stolen, and defense counsel argued that he did not. We find no likelihood that the jury would have disregarded the trial court's instructions and the parties' arguments and concluded that it could determine Duval violated Section 10851(a) without finding an intent to deprive the van's owner of possession based on the chain of inference that Duval derives from the pinpoint instruction.
Because we conclude that there was no error in the pinpoint instruction, we do not address Duval's argument that his trial counsel was ineffective in failing to object to the instruction.
B. The 2019 Conviction
Duval also argues that the trial court should not have admitted evidence regarding his 2019 conviction for receiving a stolen vehicle. Reviewing the admission of this evidence for abuse of discretion (People v. Leon (2015) 61 Cal.4th 569, 597), we conclude that there was no abuse.
Evidence that a criminal defendant has committed other crimes is ordinarily not admissible to show the defendant's bad character or propensity to commit crimes. (Evid. Code, § 1101, subds. (a), (b).) However, such evidence may be admitted to prove other facts such as defendant's" 'motive, common scheme or plan, preparation, intent, knowledge, identity, or absence of mistake or accident'" in the charged crimes. (People v. Ewoldt (1994) 7 Cal.4th 380, 393 (Ewoldt) [discussing Evid. Code, § 1101].) As with other circumstantial evidence, the admissibility of other-crimes evidence "depends on the materiality of the fact sought to be proved, the tendency of the prior crime to prove the material fact, and the existence or absence of some other rule requiring exclusion." (People v. Whisenhunt (2008) 44 Cal.4th 174, 203.) All three factors support the trial court's decision to admit Duval's 2019 conviction.
First, evidence concerning Duval's 2019 conviction was material. The key dispute at trial concerned whether Duval knew the van was stolen and therefore had the requisite intent to deprive the van's owner of possession. Evidence concerning the 2019 conviction showed that Duval was found in a business parking lot in possession of a vehicle that had been stolen several weeks before; he had recently and hastily painted the vehicle; and he had attached false plates. Moreover, he was convicted of receiving a stolen vehicle under Penal Code section 496d, which requires knowledge that the vehicle was stolen. (People v. Kunkin (1973) 9 Cal.3d 245, 249; People v. Russell (2006) 144 Cal.App.4th 1415, 1426.) Here, Duval similarly was found in a business parking lot in possession of a stolen vehicle that he apparently had painted and that had false plates. Consequently, evidence concerning Duval's 2019 offense suggests that his possession in 2021 of a stolen vehicle was not a mistake and instead he was pursuing the same plan or scheme he had in 2019 to conceal the identity of a stolen van, which in turn suggests that he knew the van was stolen and intended to deprive the true owner of possession. (See People v. Kelly (2007) 42 Cal.4th 763, 783 [" '[T]he recurrence of a similar result . . . tends . . . to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish . . . the presence of the normal, i.e., criminal, intent accompanying such an act" . . . .' "].) As such intent is one of the ultimate facts in dispute, the evidence concerning the 2019 requirement was material under Evidence Code section 1101, subdivision (b). (See People v. Thompson (1980) 27 Cal.3d 303, 315, fn. 14 ["The materiality requirement is satisfied . . . if the intermediate fact tends logically and reasonably to prove an ultimate fact, which is in dispute."].)
Second, the evidence concerning Duval's 2019 offense was highly probative. To show a common plan, evidence of a defendant's conduct "must demonstrate 'not merely a similarity in the results, but such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations.' [Citation.]" (Ewoldt, supra, 7 Cal.4th at p. 402.) The conduct at issue here-parking a stolen car in a business parking lot, spray painting it, and attaching false license plates-is unusual. As a consequence, it is unlikely that Duval twice engaged in such conduct by happenstance and even more unlikely that he acted innocently and mistakenly the second time. (See People v. Robbins (1988) 45 Cal.3d 867, 879-880 [" '[A]n unusual and abnormal element might perhaps be present in one instance, but . . . the oftener similar instances occur with similar results, the less likely is the abnormal element likely to be the true explanation of them.' "]; see also People v. Dryden (2021) 60 Cal.App.5th 1007, 1017 [two discrete occurrences of an unusual circumstance are enough to show a common plan or scheme and rebut an assertion of innocent mistake].)
Third, no rule required exclusion of the evidence concerning Duval's 2019 offense. Duval argues that the evidence should have been excluded under Evidence Code section 352. Under that section a court may exclude evidence if "its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.)" 'Prejudice for purposes of Evidence Code section 352 means evidence that tends to evoke an emotional bias against the defendant.'" (People v. Tran (2011) 51 Cal.4th 1040, 1048.) As other-crimes evidence often does this, it" 'should be scrutinized with great care.'" (People v. Cage (2015) 62 Cal.4th 256, 273.) Here, however, Duval's prior conviction was for receiving a stolen motor vehicle, which is not a particularly inflammatory offense and no more inflammatory than post-theft driving under Section 10851(a), the offense with which Duval was charged. As a consequence, the trial court did not abuse its discretion in concluding that the prejudice from the prior-crime evidence here was limited and did not substantially outweigh its probative value.
Accordingly, we conclude that the trial court did not abuse its discretion in admitting evidence concerning Duval's 2019 conviction.
C. Bifurcation
Finally, Duval argues that the trial court should have bifurcated his trial so that the sentencing allegation concerning his 2019 conviction was considered separately. Here again, reviewing the trial court's ruling for abuse of discretion (People v. Calderon (1994) 9 Cal.4th 69, 77-78 (Calderon)), we find no abuse. Due to the often prejudicial effect of prior-crimes evidence, it is generally appropriate to bifurcate trial of sentencing allegations concerning such crimes. (Id. at p. 79.) However, it is well-settled that bifurcation is not required where, as here, evidence of prior crimes is admissible under Evidence Code section 1101, subdivision (b) and the jury will learn of those crimes during trial of the underlying offense. (Calderon, at p. 78 [If evidence of the prior conviction "is relevant to prove matters such as the defendant's identity, intent, or plan [citations]-admission of the prior conviction to prove, as well, the sentence enhancement allegation would not unduly prejudice the defendant. [Citations.]"].) Accordingly, as we have concluded that the trial court did not abuse its discretion in admitting evidence concerning Duval's 2019 conviction, we also conclude that the trial court properly declined to bifurcate consideration of the sentencing allegation concerning that conviction.
Duval contends that the trial court abused its discretion because it erroneously believed that it lacked authority to bifurcate. Duval bases this argument on doubts that the trial judge expressed about the appropriateness of bifurcating issues that the Legislature allowed prosecutors to include in criminal charges. However, after expressing this doubt, the trial court asked the parties "am I missing a point," and both the prosecutor and defense counsel responded that bifurcation of sentencing allegations is permissible. Nothing in the record suggests that the trial court rejected these responses. To the contrary, the court informed the parties that it was denying the request to bifurcate (and admitting evidence concerning the prior conviction) "for the reasons set forth . . . in [the prosection's] motions in limine." Especially in light of the presumption of correctness that trial court rulings enjoy (Jameson v. Desta (2018) 5 Cal.5th 594, 608609), we reject Duval's suggestion that the trial court failed to recognize and exercise its discretion in denying bifurcation. (See People v. Stowell (2003) 31 Cal.4th 1107, 1114 [applying "the general rule 'that a trial court is presumed to have been aware of and followed the applicable law.' "].)
We also reject Duval's arguments concerning the cumulative effect of the errors at trial because we conclude that there is no error to cumulate. (In re Avena (1996) 12 Cal.4th 694, 772, fn. 32.)
III. Disposition
The judgment is affirmed.
WE CONCUR: GROVER, ACTING P. J., LIE, J.