Opinion
C083655
02-07-2018
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL WAYNE FLEWELL, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15F04515)
OPINION ON REHEARING
Following a jury trial, defendant Michael Wayne Flewell was convicted of unlawfully driving or taking a vehicle. (Veh. Code, § 10851, subd. (a).) Defendant admitted two prior prison term allegations (Pen. Code, § 667.5, subd. (b)) and the trial court sustained a strike allegation (§ 1170.12). Defendant was sentenced to a six-year state prison term.
Undesignated statutory references are to the Penal Code.
On appeal, defendant contends his Vehicle Code section 10851 conviction (unlawfully driving or taking a vehicle) should be reduced to a misdemeanor under Proposition 47 (as approved by voters Gen. Elec., Nov. 4, 2014, eff Nov. 5, 2014, codified as § 1170.18 (Proposition 47)) because the vehicle in question was worth less than $950. Defendant also contends the trial court erred in failing to instruct on the value of the vehicle as an element of unlawfully driving or taking a vehicle and admitting evidence of defendant's two prior Vehicle Code section 10851 convictions. We conclude (1) Proposition 47 does not apply to defendant's Vehicle Code section 10851 conviction because the conviction was based on posttheft driving and (2) the trial court did not err in admitting evidence of prior Vehicle Code section 10851 convictions. We affirm.
BACKGROUND
Defendant was charged with two counts of unlawfully driving or taking a vehicle and two counts of receiving a stolen vehicle for incidents involving two cars, a 1994 Honda Accord and a 1995 Saturn. He was convicted of the Vehicle Code section 10851 count as to the Accord, so the jury did not render a verdict on the receiving count as to that vehicle. The jury could not reach a verdict on the counts related to the Saturn; the trial court declared a mistrial on those counts and ultimately dismissed them.
On July 18, 2015, V. parked her 1994 Honda Accord near Howe Park in Sacramento. It was gone when she returned approximately 10 minutes later.
V. saw her car a week later while she was on the way to the store with a friend. She called 911; V. and her friend followed the car and described their route to the 911 operator until police apprehended the driver, defendant. Before he was apprehended, defendant drove dangerously by increasing his speed and running red lights and stop signs. V. did not know defendant and did not give him permission to drive her car. Police found an unloaded BB gun on the front seat of the car. Defendant did not try to flee or resist the officers when he was apprehended.
The Accord had been stolen in a separate incident approximately one and a half months earlier. When it was recovered, the airbags and stereo were missing, a part of the dashboard was gone, the windshield was smashed, the front end severely damaged, and the ignition was "punched" so the car could be started without a key. V. spent $300 to replace the windshield, straighten the bumper, and replace the radiator. After the repairs, the car overheated if driven too far without refilling the radiator.
V. estimated the Accord was worth $1,500 when it was stolen on July 18. She bought it for $500 three years earlier and had put $2,000 into it. The car had 222,000 miles on it when purchased.
Defendant telephoned V. twice while in custody. He asked whether she would be going to the trial, whether he could pay her off, and told V. if she did not go to the trial "they can't hold that car against me."
B's 1995 Saturn was taken at some point between July 4 and July 13, 2015. Defendant had been staying at her apartment; when she woke up, defendant and her car were gone. Defendant left his backpack in the apartment. It contained a license plate with a different number than that of her Saturn. B. waited a day before reporting her car stolen. She saw defendant driving the car approximately one week later; he sped off when they made eye contact.
The license plate of B.'s Saturn was on V.'s Accord when it was recovered. The Accord also contained a backpack with documents in defendant's name, the title for a 1999 Pontiac, and the title for B.'s Saturn. B. had left the title for the Saturn in her car.
Uncharged Misconduct Evidence
Defendant had prior Vehicle Code section 10851 convictions in 2012 and 2014. He was stopped while driving a stolen Toyota Camry on August 13, 2012. He initially ran from the police, but was detained by a K-9 officer. A BB pistol was in the driver's side door pocket. On February 1, 2014, defendant was sitting in a SUV with paper dealer license plates. Defendant walked away when officers approached, and tried to run away but was later detained and arrested. The vehicle's title was in his wallet.
The Defense
Defendant testified he bought V.'s Accord for $150 from a friend. He asked the friend if the Honda was stolen and was assured it was not.
Defendant was living with B. for about two weeks when she gave him the key to her apartment, the key to the Saturn, title to the car, and a bill of sale, for which he paid $200 or $250 the next day. The next day, defendant was supposed to drive B. to a class but did not do so because he had stayed out late. He never came back and B. never asked him to return the car. Defendant left the Saturn at a friend's house after the clutch failed. He returned later to find the Saturn gone. He eventually found the Saturn but could not afford to fix it, so he rode a bicycle instead.
Rebuttal
After he was arrested, defendant told an officer he had traded a Lexus for a Honda at a Carmichael business. The trade happened five days before, but he could not remember the name or address of the business. Defendant never mentioned the friend who sold him the Honda or paying $150 for the car.
DISCUSSION
I
Proposition 47
In November 2014, the voters passed Proposition 47 that reduced a number of felony or wobbler offenses to misdemeanors. (See People v. Rivera (2015) 233 Cal.App.4th 1085, 1091.) One of the crimes reduced to a misdemeanor by Proposition 47 is petty theft, defined as theft of property where value of the money, labor, real or personal property taken does not exceed $950 (§ 490.2). (See § 1170.18, subd. (a).)
Shortly after our original opinion in this case was filed, the California Supreme Court concluded section 490.2 includes convictions for vehicle theft under Vehicle Code section 10851 where it is shown the vehicle was worth $950 or less, but it does not apply to convictions for posttheft driving under that code section. (People v. Page (2017) 3 Cal.5th 1175, 1180, 1188-1189.) Page addressed whether a defendant convicted under Vehicle Code section 10851 was eligible for relief under Proposition 47's resentencing provision, section 1170.18. (Page, at pp. 1179-1180.) With respect to determining whether a Vehicle Code section 10851 conviction was based on vehicle theft, as opposed to posttheft driving, the court instructed: "Where the trial testimony . . . shows posttheft driving—that is, driving the vehicle following a 'substantial break' after the vehicle had initially been stolen—the defendant cannot establish eligibility [for resentencing] under section 1170.18 by declaring or testifying that he or she also stole the vehicle: such testimony would not prove the conviction was based on theft rather than on posttheft driving, and therefore would fail to establish that the defendant would only have been guilty of a misdemeanor (petty theft under section 490.2, subd. (a)) had Proposition 47 been in effect at the time of the offense. [Citation.]" (Page, at p. 1189.) Although this case does not involve a resentencing petition, we are nonetheless guided by Page.
Here, defendant was charged with both unlawfully taking and driving the Accord, and the jury was instructed on both theories of the crime. Regarding the Vehicle Code section 10851 offense, the prosecutor made the following closing argument: "to be clear, the defendant took or drove. We always refer to it as vehicle theft. I don't have to prove to you that the defendant took the Honda from Howe Park. I do not have to prove that to you. It's took or drove. So I think there's a misnomer when it says vehicle theft is he took or drove -- in the first case, with [B.] he took it, and regarding [V.], he drove it. Maybe he did take it from Howe Park, maybe he didn't. Either way, I don't have to prove that fact to you because he did drive it and, in fact, he admitted it." The evidence shows defendant unlawfully drove the Accord after a substantial break from its taking: defendant was found driving the car a week after it went missing..
In light of the posttheft driving and the prosecutor's decision to elect that theory of guilt for the Vehicle Code section 10851 offense, we conclude Proposition 47 does not apply to reduce defendant's felony conviction to a misdemeanor.
Based on this conclusion, we do not need to address defendant's claims of insufficient evidence the Accord was worth more than $950 and error in failing to instruct on the car's value. --------
II
Prior Vehicle Code Convictions
The People sought to admit evidence of defendant's two prior Vehicle Code section 10851 convictions and the circumstances of the offenses to show defendant had the same criminal intent while engaging in similar conduct. The trial court admitted the evidence over defendant's objection. Defendant contends this was prejudicial error.
Evidence Code section 1101 prohibits the admission of other crimes evidence to show a defendant's bad character or disposition to commit the crime charged except when relevant to prove some fact such as intent, absence of mistake or accident, and common plan.
People v. Ewoldt (1994) 7 Cal.4th 380 stated: "The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent. [Citation.] '[T]he recurrence of a similar result . . . tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act . . . .' [Citation.] In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant ' "probably harbor[ed] the same intent in each instance." [Citations.]' [Citation.]" (Id. at p. 402.)
Nonetheless, the trial court may exclude relevant 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.)
We review the admission of evidence under Evidence Code sections 1101, subdivision (b), and 352 under the abuse of discretion standard. (People v. Kipp (1998) 18 Cal.4th 349, 369 [Evid. Code, § 1101]; People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125 [Evid. Code, § 352].) The trial court's decision should not be disturbed on appeal unless the trial court acted in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Rodrigues, supra, at pp. 1124-1125.)
To prove a violation of Vehicle Code section 10851, subdivision (a), the prosecutor had to show beyond a reasonable doubt that defendant took or drove V.'s car without her consent and with the specific intent to deprive her either permanently or temporarily of her title to, or possession of, the vehicle. (CALCRIM No. 1820.)
In the 2012 prior, defendant had a BB pistol in the driver's side door pocket similar to the BB gun he had in V.'s Accord. In both priors, defendant attempted to avoid apprehension by running from the police. The vehicle's license plates were covered with paper dealer plates in the 2014 incident. These facts tend to prove defendant intended to permanently or temporarily deprive V. of ownership or possession of her car. The jury could reasonably infer that the presence of the BB pistol in the stolen Camry from the 2012 case and V.'s Accord shows defendant's intent to keep the vehicle or use it as his own by placing his personal property in the car. While defendant did not flee from the police in this case, his dangerously evasive driving is consistent with his knowing that he had been spotted by the vehicle's owner and was attempting to flee. Defendant's flight in the two priors is thus consistent with an inference of criminal intent from his evasive actions in this case. Covering the license plates of the stolen vehicle with paper dealer plates in the 2014 case is close to what happened here, where the Accord's plates were replaced with the license plates from B.'s Saturn. It proves that, as in the 2014 case, defendant here was seeking to hide the identity of the Accord, supporting the inference that he harbored the requisite criminal intent. The two priors were admissible under Evidence Code section 1101 as evidence of intent.
The probative value of the evidence of defendant's prior convictions was not substantially outweighed by its prejudicial effect or probability of wasting time. The evidence was highly relevant to whether defendant harbored the necessary criminal intent. That fact does not render it unduly prejudicial. " 'The "prejudice" referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying [Evidence Code] section 352, "prejudicial" is not synonymous with "damaging." ' [Citation.]" (People v. Karis (1988) 46 Cal.3d 612, 638.) Here, the 2012 and 2014 priors were not remote, they did not involve worse facts than that of the charged crimes, they did not consume a large amount of time, and the jury was instructed with CALCRIM No. 375 that it was not to consider it as propensity evidence or evidence of bad character. It was not an abuse of discretion to admit this evidence.
DISPOSITION
The judgment is affirmed.
/s/_________
HOCH, J. We concur: /s/_________
HULL, Acting P.J. /s/_________
RENNER, J.