Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF152455, Richard Hanscom, Judge. (Retired judge of the San Diego Super Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Johanna R. Pirko, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf and Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P.J.
Defendant Dennis Leeroy Hammack is serving a six-year sentence after a jury convicted him of unlawfully taking or driving a vehicle (Veh. Code, § 10851, subd. (a)). In this appeal, defendant argues: 1) there was insufficient evidence that he had the specific intent to deprive the victim of possession of her car; 2) the trial court erred when it instructed the jury using Judicial Council of California Criminal Jury Instruction CALCRIM No. 376; 3) the prosecutor inappropriately argued that Hammack had an affirmative obligation to prove his innocence and referred to facts not in evidence; and 4) the cumulative effect of the trial court errors requires reversal. As discussed below, we reject these arguments and affirm the conviction.
Facts and Procedure
On August 18, 2009, Natalie Kerr went on an overnight camping trip with her boyfriend, his brother and Kerr’s friend Sandy. The four traveled together in Kerr’s 2000 Honda Civic. Kerr brought two sets of car keys with her—her usual set and a spare set. On August 19, the group came home. When Kerr parked her car in her driveway and locked it, she realized she did not have her spare key; she believed she had lost it while camping. On the morning of August 20, Kerr and Sandy got into a serious argument over the telephone. Later that morning Kerr noticed her Honda was missing from the driveway. She immediately reported it to police.
Police located the vehicle at about 10:00 a.m. that day using the LoJack GPS system. The vehicle was parked on a residential street, unoccupied. Police conducted surveillance of the car from an unmarked police vehicle. At about noon that day, defendant got into the car and drove away. Police followed defendant to a nearby shopping center, where he parked the car. Police at that time took defendant into custody. He had on his person a Honda key that fit the stolen car. When the key was returned to her, Kerr identified the key as the spare key she believed she had lost during the camping trip.
Kerr’s friend Sandy and defendant had previously been in a dating relationship, and Kerr believed they were still in occasional contact. Kerr did not know defendant very well, but about a month before the theft defendant had changed the brakes on the car. On the day of the repair, defendant had driven the car down the street from the gas station back to his house, with Kerr in the passenger seat. Kerr did not give Sandy or defendant permission to drive her car.
On August 24, 2009, the People filed a complaint charging defendant in count 1 with willfully and unlawfully driving or taking a vehicle and in count 2 with receiving stolen property (Pen. Code, § 496d, subd. (a)). The People also alleged that defendant had served two prior prison terms (Pen. Code, § 667.5, subd. (b)) and had one prior strike conviction (Pen. Code, §§ 667, subds. (c) & (e)(1), and 1170.12, subd. (c)(1)).
On November 17, 2009, a jury found defendant guilty of unlawfully driving a vehicle, but not guilty of receiving stolen property. On December 2, the trial court found the prior prison terms and the prior strike conviction to be true. On January 6, 2010, the trial court sentenced Hammack to six years in state prison as follows: the midterm of two years years for unlawfully driving the vehicle, doubled for the strike prior, plus one year for each of the prison priors. This appeal followed.
Discussion
1. Sufficiency of Evidence Regarding Intent
Defendant first argues that his conviction should be reversed because insufficient evidence was presented to support the jury’s finding that he had the specific intent to deprive Kerr of her car.
When a criminal defendant challenges the sufficiency of the evidence supporting his conviction, the appellate court is required to affirm the conviction if, “‘viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ [Citation.]” (People v. Johnson (1980) 26 Cal.3d 557, 576.) If there is substantial evidence which supports the verdict, the reviewing court is not empowered to reverse or modify the conviction merely because the trier of fact could have reached a different conclusion. (People v. Holt (1997) 15 Cal.4th 619, 668.) “Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for 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 upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]” (People v. Maury (2003) 30 Cal.4th 342, 403.) It is the jury, not the appellate court, which must be convinced of the defendant’s guilt beyond a reasonable doubt. (Holt, supra, at p. 668.) The same standard applies if the verdict is supported by circumstantial evidence. (Ibid.)
“The elements necessary to establish a violation of section 10851 of the Vehicle Code are the defendant’s driving or taking of a vehicle belonging to another person, without the owner’s consent, and with specific intent to permanently or temporarily deprive the owner of title or possession.” (People v. Windham (1987) 194 Cal.App.3d 1580, 1590.) The prosecution may prove a vehicle theft by direct or circumstantial evidence. (People v. Clifton (1985) 171 Cal.App.3d 195, 199-201.) “Mere possession of a stolen car under suspicious circumstances is sufficient to sustain a conviction of unlawful taking. Possession of recently stolen property is so incriminating that to warrant a conviction of unlawful taking there need only be, in addition to possession, slight corroboration in the form of statements or conduct of the defendant tending to show his guilt.” (Id. at pp. 199-200.) “‘The specific intent to deprive the owner of possession of his car may be inferred from all the facts and circumstances of the particular case. [Citations.]’ [Citation.]” (Windham, supra, at p. 1590, quoting In re Robert V. (1982) 132 Cal.App.3d 815, 821.)
Here, because defendant was in possession of Kerr’s recently stolen vehicle, only slight corroboration is needed to support the conviction. This corroboration is present in the form of the following evidence. First, defendant drove the vehicle using the spare key that Kerr assumed she had lost during her camping trip. Second, defendant’s ex-girlfriend Sandy was present for the camping trip during which Kerr lost her spare key. Third, defendant’s ex-girlfriend Sandy had just had a falling out with Kerr the morning that the car was stolen. Fourth, Kerr testified that she had never given defendant or his ex-girlfriend permission to drive her car. Based on this information, a reasonable jury could have inferred that defendant or Sandy took the car using the spare key, that defendant knew he did not have permission to drive the car, and that he drove the car intending at least temporarily to deprive Kerr of her car.
2. Constitutionality of CALCRIM No. 376 in This Instance
Hammack argues the trial court violated his rights under the Fifth and Fourteenth Amendments to the U.S. Constitution when it instructed the jury to apply CALCRIM No. 376 to the non-theft offense of unlawfully driving a vehicle.
The trial court instructed the jury using CALCRIM No. 376 as follows: “If you conclude that the defendant knew he possessed property and you conclude that the property had in fact been recently stolen, you may not convict the defendant of unlawful taking or driving a vehicle or receiving stolen property based on those facts alone. However, if you also find that supporting evidence tends to prove his guilt, then you may conclude that the evidence is sufficient to prove he committed unlawful taking or driving a vehicle or receiving stolen property. [¶] 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 guilt of either of these crimes. [¶] Remember that you may not convict the defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt.” Defendant contends this instruction violated his right to due process and lowered the People’s burden of proof by improperly allowing a permissive inference in this “non-theft” case that he knew the car was stolen based on insufficient supporting evidence. We choose to follow the holding of the appellate court in People v. O’Dell (2007) 153 Cal.App.4th 1569 and reject this claim.
In People v. O’Dell, as here, a jury convicted defendant of unlawfully driving or taking a vehicle. Also as in this case, the defendant argued the trial court erred when it instructed the jury using CALCRIM No. 376 because this shifted the burden of proof to the defense by permitting the jury to draw in impermissible inference of guilt without sufficient basis in fact. (O’Dell at pp. 1573-1574.) The appellate court held that “CALCRIM No. 376 itself accurately describes the law regarding mental state inferences to be drawn from possession of stolen property. The instruction did not infringe on appellant’s constitutional rights.” (O’Dell at p. 1577.) The court based this holding on a long line of cases holding that “Possession of recently stolen property itself raises a strong inference that the possessor knew the property was stolen.... [Citation.] This principal, applicable to theft offenses, applies as well to the unlawful driving of a vehicle.” (Id. at p. 1574, citing People v. Green (1995) 34 Cal.App.4th 165, 181) “The specific intent to deprive the owner of possession of his vehicle ‘“may be inferred from all the facts and circumstances of the particular case.’”” (Id. at p. 1577, citing Green, supra, 34 Cal.App.4th at p. 181.) We see no reason to depart from established case law, and so reject defendant’s argument on this point.
3. Prosecution Misconduct During Closing Arguments
Defendant points to a number of instances during the final segment of the People’s closing argument as constituting prosecutorial misconduct requiring reversal of his conviction. These instances are as follows.
A. Shifting Burden of Proof to Defendant?
Defendant argues the prosecutor improperly attempted to shift the burden to him to prove his innocence. Defendant bases his argument on the following comments the prosecutor made in response to defense counsel’s closing arguments. The gist of the comments below is that the defense presented no evidence to support its theory that defendant drove the car without knowing it.
“Q [THE PROSECUTOR]: [Defense counsel] seemed to hinge his argument on the fact that the defendant didn’t know [the vehicle] was stolen. Well, since we were just talking about what evidence, what you can consider as evidence, and that’s from the witness stand. There is absolutely no evidence presented to you that the defendant didn’t know it was stolen....
“[DEFENSE COUNSEL]: Your Honor, I’d object that she’s shifting the burden.
“THE COURT: No, no. I’ll instruct on the law but go ahead.”
Along the same lines, the prosecutor made the following comments, to which the defense did not object:
“[THE PROSECUTOR]: And absolutely the only thing you heard from that witness stand was the fact that the defendant was driving the car without the permission of the victim who owned the car and he knew that [the vehicle] was stolen.... [¶]... [¶] [Defense counsel] also said something interesting, that there is evidence to contradict intent and knowledge, but if you listen to him carefully, he didn’t provide you with a shred of what that evidence is. That’s because the only evidence you have before you is the evidence from the witness stand, from the victim who said she did not give her permission. She did not give that spare key.”
We conclude that these comments were not impermissible attempts to shift the burden of proof to defendant to establish that he was not guilty. Rather, they are permissible comments on the state of the evidence, particularly as the prosecutor was attempting to counter statements by defense counsel that there was evidence to show defendant did not know the vehicle was stolen. “[P]rosecutorial comment upon a defendant’s failure ‘to introduce material evidence or to call logical witnesses’ is not improper. [Citations.]” (People v. Wash (1993) 6 Cal.4th 215, 263, quoting from People v. Szeto (1981) 29 Cal.3d 20, 34.) “A distinction clearly exists between the permissible comment that a defendant has not produced any evidence, and on the other hand an improper statement that a defendant has a duty or burden to produce evidence, or a duty or burden to prove his or her innocence.” (People v. Bradford (1997) 15 Cal.4th 1229, 1340.) Here, the prosecutor did not impermissibly imply that defendant had the burden to produce evidence to prove his innocence. There was no misconduct.
“[The People] want you to presume because [defendant] was found in the car... that he knew it was stolen... that are actually evidence to contradict that assumption, that speculation.” “It’s a reasonable conclusion from the evidence that [defendant] could have assumed that Sandy Seekle had consent.” “It’s a reasonable assumption that he had no idea she stole the car.” “To the contrary, there’s evidence to suggest that he would have a reasonable belief that it wasn’t stolen.”
B. Invitation to Speculate and Make Inferences in People’s Favor
Defendant also argues the prosecutor impermissibly urged the jury to convict him based merely on speculation, based on the following statement: “Basically what he’s telling you is make logical leaps for him, but when I’m asking you to make logical leaps, don’t do it. [¶] Well, it doesn’t work that way. We’re both entitled to the same thing. And you are supposed to make logical leaps. Like I said before, the logical leap is that Sandy Seekle took that spare key and gave it to the defendant and the defendant took that vehicle out of the driveway.” In fact, the prosecutor was clear that the jury was not to speculate, in particular as to how a witness would have testified had they taken the stand. “That is speculating and that is a very big no-no on your part. You cannot do it. You cannot consider it.” The prosecutor simply invited the jury to make certain inferences based on the evidence. This is allowable and certainly not prejudicial.
C. Defining “Abiding Conviction.”
Defendant contends the following comments on the nature of “abiding conviction” eroded the People’s burden to prove his guilt beyond a reasonable doubt by suggesting that an “abiding conviction” could change with the passage of a day.
The trial court instructed the jury with the standard reasonable doubt instruction that includes the following: “Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true.” (CALCRIM No. 220.)
“Finally, the abiding conviction that you need to have. That’s true, it’s an abiding conviction that’s lasting. What I want to remind you of is that it’s an abiding conviction that is lasting based on what you heard, based on how you feel today. Things change over time. Things are going to change in a week, a month, five years. You hear different things that change your mind, change your opinions, things that may change evidence. [¶] Your abiding conviction is based on how you feel today and what you have heard before you, and that’s based on what’s reasonable; that’s what reasonable doubt is.”
We disagree with defendant. The prosecutor’s statement did not lower the People’s burden of proof. Rather, the prosecutor correctly stressed that each juror must decide on guilt or innocence based on the information before her at the time of trial, not on information he may receive at some future date. This is very similar to People v. Pierce (2009) 172 Cal.App.4th 567, in which the appellate court expressed approval of similar comments by the prosecutor on the nature of “abiding conviction.” “[C]onsidering the law and the facts presented, that conviction would ‘abide, ’ that is, would not change, through the end of the trial when the jury rendered its verdict in open court. The possibility that after the conclusion of the case one or more jurors might change their minds after learning something new is irrelevant. That speculative possibility does not lessen or otherwise implicate the degree of certainty required for a verdict.” (Id. at p. 573.) Thus, the prosecutor did not commit prejudicial misconduct with these comments.
D. Prosecutor’s Comment “Guaranteeing” Sandy Told Defendant She Took the Key
Defendant argues the prosecutor committed prejudicial misconduct by acting as an “unsworn witness” and “testifying” during closing argument to facts not in evidence, i.e., that Sandy must have told defendant that she had taken Kerr’s key, and so he knew he was driving the vehicle without Kerr’s consent. The People counter that the prosecutor’s comments were proper because they were based on a reasonable inference from the evidence presented at trial. The comments in context are as follows, with the one to which defendant specifically objects in italics:
“[THE PROSECUTOR]: You know [defense counsel] would have you believe that the defendant is some poor, unsuspecting person that got caught up and oh, poor him because he didn’t know that Sandy and Ms. Kerr had a falling out. Last he knew they were just friends and, you know, well, ... she has this spare key so how come he couldn’t drive it? Because he never had permission before. Sandy never had permission before. [¶] The victim testified that she and Sandy were friends since May of this year. This happened in August. They had been friends for quite a while and never once had permission been given. Suddenly there’s permission given after there’s been an argument that was upsetting. I guarantee you that Sandy told the defendant, ‘Hey we had a falling out.[’] He knew that they had a falling out. He knew that Sandy had that key. He took that key and drove that car.” Prosecutorial comments that misstate the evidence or that refer to facts not in evidence have long been considered misconduct. (People v. Hill (1998) 17 Cal.4th 800, 827-828.) Such statements tend to make the prosecutor his or her own witness, offering, for all intents and purposes, unsworn testimony not subject to cross-examination. (Id. at p. 828.) However, “‘“‘a prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. [Citations.]”’”’ (Id. at p. 819.) We conclude that the prosecutor’s comments are a permissible fair comment on the evidence because they are based on a reasonable inference from the following evidence: 1) Kerr had not previously given Sandy or defendant the key to her car and permission to drive it outside of her presence; 2) Defendant was in possession of the spare key that Kerr had lost on her camping trip with Sandy; 3) Kerr and Sandy had a serious falling out just hours before defendant was found driving the car; and 4) Sandy and defendant had previously been romantically involved and were still in contact.
Even if these comments were improper, they were not prejudicial error. (People v. Watson (1956) 46 Cal.2d 818, 836.) The remark was brief, purely argumentative, and clearly not evidence. The court instructed the jury that counsel’s statements and subjective views did not constitute evidence. These instructions would have been sufficient to prevent the jury from convicting defendant based on the prosecutor’s comments. The jury is presumed to have understood and applied these instructions. (People v. Lewis (2001) 26 Cal.4th 334, 390; People v. Harris (1994) 9 Cal.4th 407, 426.) Thus, we conclude that, even if the prosecutor’s statement was more than a fair comment on or inference from the evidence, it was not prejudicial.
E. Cumulative Effect of Trial Errors
Finally, defendant argues that, even assuming the above-asserted errors are considered harmless in isolation, their cumulative impact renders them prejudicial. We have rejected these claims of error. Even assuming error, and viewing the errors as a whole, we conclude that any errors do not warrant reversal of the judgment. (People v. Stitely (2005) 35 Cal.4th 514, 560.)
Disposition
The conviction is affirmed.
We concur: HOLLENHORST J., MILLER J.