Opinion
A142135
02-16-2017
THE PEOPLE, Plaintiff and Respondent, v. JUAN CARLOS GARCIA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 51315126)
A jury convicted defendant Juan Carlos Garcia of residential burglary (Pen. Code, §§ 459, 460, subd. (a)) and unlawfully driving or taking a vehicle (Veh. Code, § 10851), and found true allegations he had suffered prior convictions. The trial court sentenced defendant to seven years in prison. On appeal, defendant contends (1) the court's instruction to the jury on the elements of theft (given in connection with the burglary charge) was confusing and lowered the prosecution's burden of proof, and (2) his trial counsel was prejudicially ineffective because she failed to object to certain testimony given by a prosecution witness and to a statement the prosecutor made in closing argument. We affirm.
All statutory references are to the Penal Code unless otherwise stated.
I. BACKGROUND
In March 2013, Ernesto Barajas lived in Bay Point with his fiancée Kimberlee Debrish, his sister Maria Barajas, and his brother-in-law Jose Garcia. Jose Garcia is defendant's brother. Barajas owned three vehicles: a 2012 Chevrolet Silverado truck, a 2008 GMC Acadia, and a 1999 Nissan Sentra.
When Barajas and Debrish left home in the Sentra on the afternoon of March 17, 2013, no one was home. The Silverado truck was locked and parked in the driveway. They returned at about 7:00 p.m. to find the truck was gone. The front door of the house was wide open.
When they left home that day, Barajas and Debrish had left their bedroom window open because of the hot weather. The bedroom window faces the backyard of the house. When they returned, the screen that normally covered the window was off. Nothing was disturbed in the house, but a set of keys to the Silverado truck and an iPhone, which had been on top of Barajas's dresser, were missing.
Barajas called the police. The responding deputy sheriff determined the bedroom window was the point of entry. He did not find any usable fingerprints.
After this incident, Jose Garcia heard from several people, including his mother, that defendant, his brother, had been driving a new truck. Defendant lived with his mother, whose house was about one and one-half miles from Barajas's house. Defendant was acquainted with Barajas and had worked on a remodeling project at Barajas's house about six months before the truck went missing.
Jose Garcia knew Barajas's truck was missing, and he thought defendant might have taken the truck. On March 18, 2013 (the day after the truck went missing), Jose Garcia went to the home of a friend of defendant's who lived on Marina Road to see if he knew where defendant was. The friend lived near Jose Garcia's mother's house. No one was home at the friend's house, so Jose Garcia returned to his mother's house. About a half-hour later, Jose Garcia walked back toward the friend's house. He heard the sound of Barajas's truck idling on Marina Road.
Jose Garcia ran toward the truck and saw defendant sitting in the driver's seat. The engine was running; the driver's side window was down; and defendant was speaking to a person who was standing outside the truck. Jose Garcia approached the driver's side of the truck, reached through the window and attempted to put the truck into "park." Defendant resisted, and he and Jose Garcia struggled. Jose Garcia managed to turn off the engine and remove the keys from the ignition. Jose Garcia pulled defendant out of the truck and held him until police arrived. Defendant said, " 'Let me go, let me go.' " Jose Garcia thought defendant would run away if he could. Police arrived 10 minutes later.
California Highway Patrol officer Wesley Tom was dispatched to the scene, where a sheriff's deputy had detained defendant. After speaking with the deputy and witnesses, Officer Tom arrested defendant for possession of a stolen vehicle.
After Officer Tom gave Miranda warnings, defendant agreed to speak with him. Defendant told Officer Tom that he climbed through a window of Barajas's and Debrish's home, took the truck keys, left the house through the front door, and drove off in the truck. Defendant admitted he did not have permission to take the truck. Defendant stated he drove the truck to a liquor store to get some juice because he was thirsty. He then drove to the location where he was detained by Jose Garcia.
Miranda v. Arizona (1966) 384 U.S. 436.
Defendant had bruises around his eye and an injury to the bridge of his nose and was taken to the hospital. He told Officer Tom that Jose Garcia had assaulted him, punching him both inside and outside of the truck. Jose Garcia told Officer Tom that he must have hit defendant in the face when he put his hands through the truck window to try to stop defendant from driving off.
Defendant did not testify. On cross-examination of Officer Tom, defense counsel elicited that defendant told the officer that his plan was to call his brother and ask him to tell Barajas that defendant had taken his truck and would give it back. Asked why he took the truck, defendant stated he needed to use it. Defendant stated his intent was to return the truck after he used it, but he did not say when he was going to call his brother.
An information charged defendant with residential burglary (§§ 459, 460, subd. (a)) (count one), unlawfully driving or taking a vehicle (Veh. Code, § 10851, subd. (a)) (count two), and grand theft auto (§ 487, subd. (d)) (count three). The information alleged defendant had suffered prior convictions, including one that was both a prior strike under the Three Strikes Law (§§ 667, 1170.12) and a prior serious felony (§ 667, subd. (a)(1)). The prosecution later dismissed count three. The jury convicted defendant of the two charged offenses and found true the prior conviction allegations. The trial court dismissed the prior strike and sentenced defendant to seven years in prison. Defendant appealed.
II. DISCUSSION
A. The Theft Instruction
The prosecution's theory of burglary was that defendant entered Barajas's and Debrish's house with the intent to steal the keys and the truck. The trial court, using CALCRIM No. 1700, instructed the jury that, to convict defendant of burglary, it would have to find that he knowingly entered the house with the intent to commit theft. The burglary instruction stated: "To decide whether the defendant intended to commit theft, please refer to the separate Instruction 1800 [CALCRIM No. 1800] that follows this instruction and explains the essential elements of the crime of theft." The court then instructed the jury on the elements of theft, using a slightly modified version of CALCRIM No. 1800. The instruction stated a person commits theft if (1) "The person took possession of property owned by someone else;" (2) "The person took the property without the owner's consent;" (3) "When the person took the property he intended to deprive the owner of it permanently or to remove it from the owner's possession for so extended a period of time that the owner would be deprived of a major portion of the value or enjoyment of the property;" and (4) "The person moved the property, even a small distance, and kept it for any period of time, however brief."
Defendant contends this instruction "did not accurately describe the offense of theft," was confusing as to the intent element of theft, and lowered the prosecution's burden of proof by permitting the jury to find that an intent to temporarily deprive Barajas and Debrish of the truck was sufficient to establish the intent element of theft. A claim of instructional error presents a question of law subject to de novo review. (People v. Guiuan (1998) 18 Cal.4th 558, 569.) We reject defendant's claim of error, both procedurally and on the merits.
CALCRIM No. 1800 correctly states the elements of theft, including the intent element. As defendant acknowledges, our Supreme Court has held that, while "theft requires an intent to permanently deprive another of property" (People v. Avery (2002) 27 Cal.4th 49, 52 (Avery)), that intent element "is satisfied by the intent to deprive temporarily but for an unreasonable time so as to deprive the person of a major portion of [the property's] value or enjoyment" (id. at p. 58).
Defendant argues CALCRIM No. 1800's statement of the intent element was confusing in this case, because, when the property taken is a vehicle, it is difficult for a jury to assess how long the vehicle would need to be gone for the owner to be deprived of a major portion of its value or enjoyment. He asserts the instruction permitted the jury to convict him of burglary if it found he intended to take the truck for any period of time, and the instruction thus "eliminated" the intent element of burglary and "lightened the prosecution's burden." He also contends the instruction was confusing in light of certain testimony by Officer Tom and a statement the prosecutor made in closing argument.
We agree with the Attorney General that defendant forfeited any argument that the instruction was ambiguous or confusing because he did not ask the trial court to modify the standard instruction or to give a clarifying instruction. Indeed, defense counsel requested that CALCRIM No. 1800 be given, and she urged the court to give it when the prosecutor objected to the instruction. " 'A party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.' " (People v. Grimes (2016) 1 Cal.5th 698, 724.) A defendant's failure to request a clarifying or amplifying instruction at trial waives a claim on appeal that the instruction given was ambiguous or incomplete. (People v. Mayfield (1997) 14 Cal.4th 668, 778-779, overruled in part on other grounds in People v. Scott (2015) 61 Cal.4th 363, 390, fn. 2; People v. Cole (2004) 33 Cal.4th 1158, 1211; People v. Hart (1999) 20 Cal.4th 546, 622.)
The intent element in CALCRIM No. 1800 ("element 3") separates the theories of intent with a slash and the bracketed word "or," thus permitting modification to allow the jury to consider (1) only a theory that the defendant intended to deprive the owner of the property permanently, (2) only a theory that the defendant intended to remove the property from the owner's possession "for so extended a period of time that the owner would be deprived of a major portion of the value or enjoyment of the property," or (3) both theories. (CALCRIM No. 1800, element 3.) The Bench Notes to the instruction state: "Select the appropriate language in element 3." Defendant did not ask the trial court to select just one of these options or to make any other modifications to the instruction.
In his reply brief, defendant contends that, under section 1259, he has not forfeited his claim despite failing to object to the trial court's instruction. We need not address arguments raised for the first time in reply.
As defendant notes, a trial court does have a sua sponte duty to give "amplifying or clarifying instructions where the term used in an instruction has a ' "particular and restricted meaning" [citation], or has a technical meaning peculiar to the law or an area of law [citation].' " (People v. Chaffin (2009) 173 Cal.App.4th 1348, 1351.) But we do not agree with defendant's assertion that this rule applies here. "A word has a technical, legal meaning when it has a definition that differs from its nonlegal meaning." (Ibid.) Defendant suggests the law has assigned a technical meaning to a phrase in the theft instruction, i.e., the portion of CALCRIM No. 1800 stating the intent element of theft is satisfied if the defendant intended to "remove [the property] from the owner's . . . possession for so extended a period of time that the owner would be deprived of a major portion of the value or enjoyment of the property."
This phrase is not a term that has a technical, legal meaning on which the court had a sua sponte duty to instruct. Instead, the inclusion of this phrase in the standard instruction reflects our Supreme Court's determination in Avery that the common law intent element of theft, "although often summarized as the intent to deprive another of the property permanently," is in some circumstances satisfied by an intent to deprive temporarily, i.e., when the defendant intends to deprive another of property "for an unreasonable time so as to deprive the person of a major portion of its value or enjoyment." (Avery, supra, 27 Cal.4th at p. 58; CALCRIM No. 1800, Bench Notes.)
Contrary to defendant's suggestion, the Avery court did not specify a "technical meaning" of this phrase. Instead, in the course of explaining its holding as to the intent element of theft, the Avery court, citing case law and secondary sources, identified examples of situations in which a defendant's intent can satisfy the common law standard even though the defendant arguably did not intend to deprive the owner permanently of property. (Avery, supra, 27 Cal.4th at pp. 55-56.) The examples included situations where the defendant intends to return the property, but only in exchange for money, i.e., " '(1) when the defendant intends to "sell" the property back to its owner, (2) when the defendant intends to claim a reward for "finding" the property, and (3) when . . . the defendant intends to return the property to its owner for a "refund." ' " (Id. at p. 55.) The Avery court also noted there are cases in which " 'the nature of the property is such that even a temporary taking will deprive the owner of its primary economic value, e.g., when the property is dated material or perishable in nature or good for only seasonal use,' " such as " 'taking cut flowers from a florist without consent, with intent to return them in a week,' " or " 'taking a neighbor's lawn mower without consent for the summer, with intent to return it in the fall.' " (Id. at p. 56.) Still another category " 'is composed of cases in which the defendant takes property with intent to use it temporarily and then to abandon it in circumstances making it unlikely the owner will recover it. (E.g., State v. Davis (1875) 38 N.J.L. 176, 178 [horse and carriage abandoned on a public road "after many miles and hours of reckless driving"] . . . .)' " (Avery, supra, 27 Cal.4th at p. 56.) The Avery court's discussion of examples that supported its holding as to the intent element of theft does not constitute a "technical meaning" of that element that the trial court was required to include in the instructions sua sponte.
Although we conclude defendant forfeited his claim of instructional error, we also find the claim unpersuasive on the merits. Nothing in the instruction is likely to have confused a reasonable juror, and the instruction was not deficient for failing to elaborate on the purported "technical meaning" of the language setting forth the intent element of theft. And for the reasons we discuss in part II.B below, we conclude it is not reasonably likely the challenged statements by the prosecutor and Officer Tom resulted in any confusion. At oral argument, appellate counsel emphasized (as he did in his briefing) that, when the property taken is a vehicle, CALCRIM No. 1800 is deficient because its description of the intent element does not allow a jury to distinguish between the crimes of theft and "joyriding." We disagree. The intent requirement for theft is "often summarized as the intent to deprive another of the property permanently" (Avery, supra, 27 Cal.4th at p. 58), but it is satisfied by "an intent to take the property for so extended a period as to deprive the owner of a major portion of its value or enjoyment" (id. at p. 55). That does not mean every taking of property without the owner's consent constitutes theft, however. A person who takes property with the intent only to deprive the owner temporarily (and not for so extended a period as to meet the Avery standard) is not guilty of theft.
When the property involved is a vehicle, California statutory law imposes criminal liability for conduct that does not meet the common law definition of theft. Specifically, Vehicle Code section 10851 provides a person who "drives or takes" a vehicle without the owner's consent, "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 public offense. (Veh. Code, § 10851, subd. (a), italics added.) A person can violate this statute " 'either by taking a vehicle with the intent to steal it or by driving it with the intent only to temporarily deprive its owner of possession (i.e., joyriding).' " (People v. Garza (2005) 35 Cal.4th 866, 876; see id. at p. 871 [referring to the act of driving after a theft is complete as " 'posttheft driving' "].) But the existence of this statute does not mean that the intent requirement for theft, or the instruction describing that element, is uniquely inapplicable when the property at issue is a vehicle. As with other property, a person who takes a vehicle with the intent only to deprive the owner temporarily (and not for so extended a period as to meet the Avery standard) is not guilty of theft, although he or she may be guilty of a violation of Vehicle Code section 10851. Application of the usual intent requirement when a defendant is charged with theft of a vehicle (or, as here, burglary based on the alleged intent to steal a vehicle) does not eliminate "joyriding" or any other crime.
Prior to 1996, a different statute, section 499b ("commonly referred to as the 'misdemeanor joy-riding statute' " (People v. Jaramillo (1976) 16 Cal.3d 752, 755)), provided that any person who took an "automobile, bicycle, motorcycle, or other vehicle or motorboat or vessel" without the owner's permission "for the purpose of temporarily using or operating the same," was guilty of a misdemeanor. (Former § 499b, as amended by Stats. 1983, ch. 1092, § 289.) Since its amendment in 1996, this statute no longer applies to the taking of an automobile; it now applies only to the taking of a bicycle or a vessel for the purpose of temporarily using or operating it. (§ 499b, subds. (a)-(b); see Stats. 1996, ch. 660, §§ 1, 3.)
We do not hold that the full description of the intent element stated in CALCRIM No. 1800 must or should be used in any given case involving the alleged taking of a vehicle. As discussed, the instruction contemplates it will be modified based on the evidence and theories presented in the case. Here, as noted, defendant's trial counsel chose not to request a modification of the instruction. Instead, she argued in closing that the evidence did not meet the intent standard stated in the instruction; noting that defendant was apprehended and arrested about 24 hours after he took the truck, counsel argued the truck was still "intact" and its owners could still "enjoy" it. --------
B. Ineffective Assistance of Counsel
Defendant contends his trial counsel provided ineffective assistance because she failed to object to a portion of Officer Tom's testimony and to a statement the prosecutor made in closing argument. To establish a claim of ineffective assistance of counsel, a defendant must show (1) trial counsel's performance fell below an objective standard of reasonableness under prevailing professional norms, and (2) the defendant suffered prejudice, i.e., there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694 (Strickland); accord, People v. Carter (2003) 30 Cal.4th 1166, 1211 (Carter).) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland, at p. 694; accord, Carter, at p. 1211.) Finally, the defendant must show that " 'the [act or] omission was not attributable to a tactical decision which a reasonably competent, experienced criminal defense attorney would make.' " (People v. Gurule (2002) 28 Cal.4th 557, 610-611.) Defendant has not shown his counsel was prejudicially ineffective.
1. Officer Tom's Testimony
a. Additional Background
During redirect examination of Officer Tom, the prosecutor asked, "What goes into your determination when you decide to arrest someone for—or what went into your determination when you decided to arrest the defendant for vehicle theft?" Officer Tom replied, "So the things that go into that are, um, we base on the totality of the circumstances and we fit the crime or we fit what we believe the violation is that has occurred to what the crime says in this case for the possession of the stolen vehicle, is without the owner's permission and from the way that we are instructed, it's to deprive that person, you may not permanently, but to deprive them of their right or their standing over that vehicle for any amount of time. [¶] So with that determination, he did not have permission to take the vehicle and this is the determination of this case. He did not have permission to take the vehicle and he took it and he deprived the owners of that vehicle for that amount of time that they did not have it, they did not have access or a right to that vehicle while it was taken from out of their possession without their permission."
Immediately following this testimony, defense counsel elicited during re-cross-examination that Officer Tom arrested defendant for being in possession of a stolen vehicle. After a few more questions by defense counsel (including a question as to whether Officer Tom "charged" defendant with receiving a stolen vehicle), the trial court interjected as follows:
"[Court]: Excuse me. First of all, he doesn't charge anybody with anything; number one. That's the District Attorney's job.
"[Defense Counsel]: Right.
"[Court]: Number two, it doesn't matter what he is arrested for. He could have been arrested for shoplifting. The officer can make a mistake.
"What he is here for are the charges in the Information and you're to make a determination as to whether or not those two charges have been proved or not proved, regardless of what else he might or might not have been charged with or arrested for.
"It doesn't matter, in essence whether or not an arresting officer has or didn't have the correct charges in mind when the person was arrested. It's just irrelevant to this whole process.
"And both of you have been asking questions about it, so let's go to another relevant topic, because the same point that I just made also applies to questions that [the prosecutor] asked after the topic was originally raised in the first cross-examination.
"Anything at all about the officer, whether or not he correctly or incorrectly arrested somebody on any particular Penal Code or Vehicle Code violation is just irrelevant to why we are here."
b. Analysis
Defendant contends his counsel should have objected to Officer Tom's answer to the prosecutor's question about why he arrested defendant, because Tom improperly opined that defendant was guilty of theft and misstated the law by stating that depriving a person of property for any length of time constitutes theft. As defendant notes, a witness may not opine as to the definition of a statutory term and may not opine the defendant is guilty of a crime. (People v. Torres (1995) 33 Cal.App.4th 37, 45-47.) But here we find no prejudicial ineffective assistance of counsel.
We note Officer Tom did not expressly state defendant was guilty of a particular crime, and he did not purport to offer an authoritative definition of a statutory term. He responded to a question as to why he decided to arrest defendant, answering in effect that he believed defendant had committed a crime (specifically, possession of stolen property). In the course of that answer, he did refer to his understanding, based on his training ("the way that we are instructed"), as to when that crime has been committed. Assuming the answer was objectionable, defense counsel may have had a tactical reason for deciding not to object. Immediately after the answer that defendant now contends was improper (which occurred at the end of redirect examination), defense counsel began her re-cross-examination by asking several questions to establish that Officer Tom initially arrested defendant for being in possession of a stolen vehicle, rather than for other crimes. As the Attorney General suggests, defense counsel may have chosen not to object to Officer Tom's answer because she wanted to pursue this line of questioning and to let the jury know defendant was not arrested for residential burglary or theft. Finally, we find no prejudice in any event. As noted, during defense counsel's questioning of Officer Tom on this point, the trial court interjected and explained that the officer's views as to which crime defendant may have committed were irrelevant.
2. The Prosecutor's Statement in Closing Argument
a. Additional Background
During closing argument, the prosecutor argued that, when defendant entered Barajas's and Debrish's home, he intended to commit theft. The prosecutor referred to the theft instruction (CALCRIM No. 1800) and outlined the elements of theft, including stating that a person commits theft if he takes the property of another without consent and "intended to either permanently deprive the owner of his [possession] or take it for an extended period of time after depriving the major portion of value or enjoyment of that property. He doesn't actually have to do that. That is what he has to be thinking. That just has to be what's in his mind."
The prosecutor continued: "And I posed to you that if you are thinking that you are going to take my car, my $45,000 year old truck for any period of time without my permission, that you are depriving me, or in this case Ernesto Barajas and Kimberly Debrish of the enjoyment of their property. That is how the law is written."
b. Analysis
Defendant argues the prosecutor misstated the law by stating the taking of the truck for any period of time could constitute theft. To the extent the prosecutor suggested the actual deprivation of property (i.e., the "asportation" element of theft) need not be lengthy, that is a correct statement of the law and is reflected in the theft instruction, CALCRIM No. 1800. (See People v. Whitmer (2014) 59 Cal.4th 733, 753, fn. 4 [" 'interference with the owner's possession need be only for an appreciable interval of time, be it ever so short' "]; People v. Quiel (1945) 68 Cal.App.2d 674, 678-679 [asportation element satisfied by defendant's removal of purse from car, though he dropped it to the ground immediately thereafter].)
To the extent the prosecutor incorrectly described the intent element of theft by suggesting a defendant may be guilty of theft as long as he intends to deprive the owner of possession for any period of time, we find no prejudice from defense counsel's failure to object to the prosecutor's brief and somewhat ambiguous statement. The theft instruction given by the court (CALCRIM No. 1800) correctly states the intent element of theft. The court also instructed the jury (in CALCRIM No. 200) that its instructions superseded any contrary statements by the attorneys: "If you believe that the attorneys' comments on the law conflict with my instructions, you must follow my instructions." And the prosecutor did not seek to divert the jury from following the court's instructions; during her comments on the elements of theft, she referred to CALCRIM No. 1800, stating that instruction "explains what a theft is."
III. DISPOSITION
The judgment is affirmed.
/s/_________
Streeter, J. We concur: /s/_________
Reardon, Acting P.J. /s/_________
Rivera, J.