Opinion
A148619
11-30-2018
THE PEOPLE, Plaintiff and Respondent, v. JAMES VICTOR JACKSON, III, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. VCR225871)
Defendant James Victor Jackson, III, was charged by information and convicted on two counts: (1) grand theft auto, identified erroneously in both the information and verdict form as a violation of Penal Code section 666.5; and (2) receipt of a stolen vehicle. On appeal, defendant contends he was deprived of due process when the trial court instructed the jury on grand theft auto with the elements for unlawful taking or driving of a vehicle. (Veh. Code, § 18051, subd. (a).) He also asserts several purported instructional errors and prosecutorial misconduct. We conclude the unique series of errors resulting in his conviction for grand theft auto deprived defendant of due process, and reverse as to that count. However, we affirm defendant's conviction for receiving a stolen vehicle.
I. BACKGROUND
A. Procedural Background
On March 15, 2016, defendant was charged by information with (1) unlawful driving or taking of a vehicle on February 25, 2016 (Veh. Code, § 10851, subd. (a); count 1); and (2) receiving stolen property, motor vehicle (Pen. Code, § 496d, subd. (a); count 2). On May 6, 2016, the prosecution moved to amend count 1 of the information to instead charge defendant with grand theft auto with prior, referenced as a violation of Penal Code section 666.5. At the pretrial hearing on that same day, the prosecutor noted there was a pending motion to amend. The court stated it did not have a copy of the motion. Defense counsel opposed the amendment, and the prosecutor conceded there was an error regarding the date of the prior and she would be filing a second amended information. The court denied the motion because of that error, noting the prosecution could refile its motion with the corrected date. The court stated, "So we are clear, even if your motion to amend is granted, I would bifurcate that . . . . And we would still be going on a straight 10851 theory, an auto theft with a prior. Right? So we will keep that out of the jury's knowledge." The court then proceeded to discuss various other pretrial issues. Neither party responded to the court's comment regarding "a straight 10851 theory."
On May 9, 2016, defense counsel submitted its requested jury instructions, which included the standard instruction for Vehicle Code section 10851 (CALCRIM No. 1820). This requested instruction was listed under the heading, "Offense Charged."
On May 11, 2016, the prosecution again moved to amend count 1 of the information. The court granted the amendment over defense counsel's objection. The second amended information, also filed on May 11, 2016, revised count 1 to read: "On or about February 25, 2016, defendant . . . did commit a felony namely: GRAND THEFT AUTO WITH PRIOR, a violation of Section 666.5 of the Penal Code . . . in that said defendant did unlawfully take an automobile . . . ." The revised count 1 included the correct conviction date of defendant's prior crime.
The parties and the court then discussed bifurcation of the prior alleged in the amended count 1. In connection with this discussion, the prosecutor commented, "I think what the Court had indicated the other day is we would proceed with it as a 10851 and not read anything about the prior." The court responded, "So I mean I don't want to allege in the Information that he is charged with a 10851 because he's not," but confirmed, "I do want to bifurcate it." The prosecutor responded, "Right."
Count 1 of the second amended information was subsequently read at the beginning of voir dire as "grand theft auto, a violation of Section 666.5 of the Penal Code . . . , in that said defendant did unlawfully take an automobile . . . ." Shortly thereafter, the court again stated count 1 was "grand theft auto," but then described the elements based on CALCRIM No. 1820. Following the presentation of evidence, the court read a modified version of CALCRIM No. 1820, which stated in part: "The defendant is charged in Count 1 with unlawfully taking or driving a vehicle in violation of Vehicle Code section 666.5. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant took or drove someone else's vehicle without the owner's consent . . . ." The record does not reflect any objections by defense counsel.
The jury found defendant guilty on both counts. The completed verdict form for count 1 states the jury found defendant guilty of "the charge set forth in the Information accusing the defendant of the crime of felony violation of Penal Code section 666.5, to wit: GRAND THEFT AUTO." The subsequent abstract of judgment states, in relevant part, defendant was convicted of grand theft auto with prior, and sentenced to a midterm of three years. B. Factual Background
On February 19, 2016, the victim parked his vehicle, a green Honda Civic. Shortly thereafter, he discovered the vehicle missing. The victim testified he did not see anyone take the vehicle.
On February 25, 2016, Solano County Deputy Sheriff Ben Greenhagen was on patrol and observed a green Honda Civic at a stop sign. While driving past the vehicle, Greenhagen testified he had an unobstructed view of the driver, whom he identified as defendant.
Greenhagen ran the license plate, which came back stolen. He observed the vehicle turning into a restaurant parking lot, and upon making a U-turn, Greenhagen parked next to the vehicle in the parking lot. He observed a woman exit the vehicle and walk toward the road, where she met defendant. Defendant and the woman continued to walk away from the restaurant and vehicle toward the road. Greenhagen then made contact with the two individuals and detained them. A third suspect was subsequently located inside the restaurant.
A third deputy searched the vehicle. The vehicle's doors were unlocked and a key marked "Mazda" was in the ignition. That deputy noted the ignition was operational and there were no signs of forced entry into the vehicle. Officers were unable to match any fingerprints from the vehicle.
II. DISCUSSION
Defendant was convicted of grand theft auto and receiving stolen property. Defendant contends this judgment must be overturned because his conviction on grand theft auto impermissibly allowed the jury to convict him based on driving, rather than taking, the vehicle. He further alleges both convictions must be reversed due to various instructional errors and prosecutorial misconduct. A. Count 1-Grand Theft Auto
Defendant asserts, and the Attorney General does not meaningfully contest, he was erroneously charged with and convicted of a penalty provision—Penal Code section 666.5—rather than a substantive offense. A plain reading of that section reveals its purpose: to impose a greater base term for repeated violations of various statutory provisions, including Vehicle Code section 10851 and Penal Code section 487, subdivision (d). (Pen. Code, § 666.5.) It does not define a substantive offense. (People v. Young (1991) 234 Cal.App.3d 111, 113-115; People v. Lee (2017) 16 Cal.App.5th 861, 869 ["Section 666.5 does not define a new offense and it is not an enhancement; it simply increases the punishment for the crime."].) However, the parties dispute the impact of the erroneous charge. Defendant argues the error divested the court of jurisdiction and the resulting judgment is void. The Attorney General, however, asserts defendant's argument is a pleading—not a jurisdictional—objection and was forfeited by defendant's failure to raise the objection below.
Substantively, defendant contends he was deprived of due process due to the court's failure to properly instruct the jury on grand theft auto. The Attorney General argues otherwise and further contends the information was informally amended to include a charge under Vehicle Code section 10851. We address each argument below.
1. Impact of Charging Defendant Under Penal Code Section 666.5
As an initial matter, we disagree the charge under Penal Code section 666.5 divested the court of jurisdiction. Defendant relies on People v. Wallace (2003) 109 Cal.App.4th 1699 (Wallace) and People v. Vasilyan (2009) 174 Cal.App.4th 443, to support his argument that the conviction is automatically void. Both of those cases involved Penal Code section 422.7, a hate crime statute that elevated misdemeanors to felonies when a crime caused physical injury and was intended to intimidate or interfere with a victim's civil rights. (See Wallace, at p. 1701.) The defendant in Wallace was convicted of violating Penal Code section 422.7. (Wallace, at p. 1701.) He subsequently challenged his conviction as unlawful because Penal Code section 422.7 constituted a penalty provision and not a substantive offense. (Wallace, at p. 1700.) The Court of Appeal concluded it could not affirm a conviction and sentence for a penalty enhancement provision that was not attached to any substantive offense, and found the judgment void. (Id. at p. 1704.) The court in Vasilyan reached a similar conclusion. (Id. at pp. 449-450 ["there must be a substantive crime and a punishment for that crime in order to constitute a criminal offense"].
We find these cases distinguishable because Penal Code section 666.5 is distinguishable from Penal Code section 422.7. Penal Code section 666.5 is more closely analogous to Penal Code section 666, commonly denominated "petty theft with a prior." (People v. Young, supra, 234 Cal.App.3d at p. 114 ["The language of section 666.5, subdivision (a) closely parallels that of section 666 . . . ."].) Both Penal Code sections 666 and 666.5 require commission of a current substantive offense and are attached to enumerated substantive offenses. Neither apply without commission of one of those enumerated offenses. (See Pen. Code, §§ 666.5, 666.) Wallace specifically distinguished Penal Code section 422.7 from section 666, stating: "Aside from the fact that the California Supreme Court has described section 666 as a 'sentence-enhancing statute' [citation], [section 666] identifies the substantive offense—i.e., petty theft—that shall be treated as a felony under the circumstances provided in the statute. Section 422.7, by contrast, does not specify any substantive offense, but rather merely provides for increased punishment of a wide range of substantive offenses." (Wallace, supra, 109 Cal.App.4th at p. 1703.)
Wallace noted its reasoning would not apply to Penal Code section 666. (Wallace, supra, 109 Cal.App.4th at p. 1703.) Because of the similarity between Penal Code sections 666 and 666.5, we see no basis for not similarly distinguishing section 666.5. Accordingly, we decline to find the judgment automatically void due to this charging error.
We also, however, disagree with the Attorney General's forfeiture argument. The Attorney General contends defendant forfeited his objection to the discrepancy between the jury instruction and the amended count and verdict form by failing to assert it below. Generally, "A trial court has no sua sponte duty to revise or improve upon an accurate statement of law without a request from counsel [citation], and failure to request clarification of an otherwise correct instruction forfeits the claim of error for purposes of appeal." (People v. Lee (2011) 51 Cal.4th 620, 638.) Conversely, " 'a defendant need not object to preserve a challenge to an instruction that incorrectly states the law and affects his or her substantial rights.' " (People v. Mackey (2015) 233 Cal.App.4th 32, 106; People v. Prieto (2003) 30 Cal.4th 226, 247 ["instructional errors . . . are reviewable on appeal to the extent they 'affect[] his substantial rights' "].) "Instructions regarding the elements of the crime affect the substantial rights of the defendant, thus requiring no objection for appellate review." (People v. Hillhouse (2002) 27 Cal.4th 469, 503.) Here, the modified CALCRIM No. 1820 instruction provided to the jury was not an accurate statement of law or the elements of the charged crime. Not only did it reference "Vehicle Code section 666.5"—a nonexistent statute—but it did not set forth the correct statement of law for Penal Code sections 666.5 or 487, subdivision (d)(1).
While CALCRIM No. 1820 does set forth the correct elements for Vehicle Code section 10851, defendant was not charged with violating that statute, as aptly noted by the trial court.
Accordingly, we turn to whether defendant was afforded due process. In this instance, we conclude he was not.
2. Due Process
"Due process of law requires that an accused be advised of the charges against him; accordingly, a court lacks jurisdiction to convict a defendant of an offense that is neither charged in the accusatory pleading nor necessarily included in the crime alleged." (In re Fernando C. (2014) 227 Cal.App.4th 499, 502-503; People v. Hamernik (2016) 1 Cal.App.5th 412, 426 [" 'It is fundamental that "When a defendant pleads not guilty, the court lacks jurisdiction to convict him of an offense that is neither charged nor necessarily included in the alleged crime." ' "].) " 'However, an exception to this rule has long been recognized in cases where a defendant expressly or impliedly consents to have the trier of fact consider a nonincluded offense: "Since a defendant who requests or acquiesces in conviction of a lesser offense cannot legitimately claim lack of notice, the court has jurisdiction to convict him of that offense." ' " (People v. Hamernik, at p. 426.)
An accusatory pleading need not specify by number the code section under which a defendant is charged. (People v. Gerber (2011) 196 Cal.App.4th 368, 388.) Under Penal Code section 952, a charging document is sufficient if it "contains in substance, a statement that the accused has committed some public offense therein specified." Even a reference to an incorrect code section may be immaterial: a "reference to an incorrect penal statute can be overcome by factual allegations adequate to inform the defendant of the crime charged." (People v. Haskin (1992) 4 Cal.App.4th 1434, 1439; People v. Gerber, at p. 388.)
Penal Code section 952 provides: "In charging an offense, each count shall contain, and shall be sufficient if it contains in substance, a statement that the accused has committed some public offense therein specified. Such statement may be made in ordinary and concise language without any technical averments or any allegations of matter not essential to be proved. It may be in the words of the enactment describing the offense or declaring the matter to be a public offense, or in any words sufficient to give the accused notice of the offense of which he is accused. In charging theft it shall be sufficient to allege that the defendant unlawfully took the labor or property of another."
Furthermore, Penal Code section 960 provides: "No accusatory pleading is insufficient, nor can the trial, judgment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form which does not prejudice a substantial right of the defendant upon the merits."
a. The Second Amended Information
The prosecution amended count 1 of the information to remove the Vehicle Code section 10851, subdivision (a) charge and replace it with a charge alleging grand theft auto with a prior in violation of Penal Code section 666.5. Defendant contends he cannot be convicted via erroneous jury instructions of violating Vehicle Code section 10851 because he was not charged with the crime and a driving violation of Vehicle Code section 10851 is not a lesser included offense of grand theft auto.
Here, the amended information failed to provide defendant with adequate notice that he was charged with violating Vehicle Code section 10851. The second amended information referenced "GRAND THEFT AUTO" and Penal Code section 666.5. It did not identify Vehicle Code section 10851 or mention its statutory title ("Theft and Unlawful Driving or Taking of a Vehicle"). Nor did the second amended information otherwise put defendant on notice of a Vehicle Code section 10851 charge. Count 1 merely stated, "defendant did unlawfully take an automobile." As our Supreme Court has long noted, " 'the specific allegations of the accusatory pleading . . . constitute the measuring unit for determining what offenses are included in a charge.' " (People v. Thomas (1987) 43 Cal.3d 818, 826.) The specific allegations of the amended information make no reference to driving as a basis for liability.
Nor is a driving violation of Vehicle Code section 10851 necessarily a lesser included offense of grand theft auto. We recognize some cases have commented otherwise—namely, that Vehicle Code section 10851 is, in fact, a lesser included offense of grand theft auto. (See People v. Barrick (1982) 33 Cal.3d 115, 128; People v. Buss (1980) 102 Cal.App.3d 781, 784 (Buss).) But those cases arose in the context of evaluating whether prior auto theft convictions were similar to pending Vehicle Code section 10851 charges that included theft allegations. (Barrick, at pp. 127-128; Buss, at p. 784.) They did not assess whether a posttheft driving charge under Vehicle Code section 10851 was a lesser included offense of grand theft auto. Moreover, Barrick only cited Buss in support of the proposition, and neither of the two cases cited by Buss—People v. Kehoe (1949) 33 Cal.2d 711 (Kehoe) and People v. Jaramillo (1976) 16 Cal.3d 752 (Jaramillo)—support such a broad conclusion.
A similar statement was also made in People v. Solis (2016) 245 Cal.App.4th 1099, 1113. However, the California Supreme Court granted review in that matter and subsequently transferred the case back to the Second Appellate District for reconsideration in light of its decision in People v. Page (2017) 3 Cal.5th 1175. On remand, the Second Appellate District reversed its prior ruling without any discussion of lesser included offenses. (People v. Solis (Jul. 2, 2018, B262149) [nonpub. opn.].)
In Kehoe, supra, 33 Cal.2d 711, the defendant was charged and convicted of both grand theft auto and unlawful driving of a vehicle under Vehicle Code section 503, the statutory predecessor to Vehicle Code section 10851. (Kehoe, at pp. 711-712.) On appeal, the defendant argued his conviction on both counts imposed double punishment because they arose from one criminal act. (Id. at p. 713.) The Attorney General argued section 503 was a lesser included crime of grand theft auto. (Kehoe, at p. 713.) The Supreme Court explained: "The doctrine of included offenses is a part of the constitutional guarantee against double jeopardy. [Citation.] Section 1023 of the Penal Code implements that guarantee by providing that a prior conviction is a bar to subsequent prosecution for the same offense 'or for an offense necessarily included therein.' In determining whether this section is applicable to a specific situation, it is necessary first to determine whether a given crime, by definition, necessarily and at all times is included within another one." (Ibid., italics added.) The court further explained, "although a given crime is not 'necessarily included' within another one for the purpose of the double jeopardy statute, under certain circumstances the conviction of both crimes cannot be justified. . . . Accordingly, the question here presented for decision is whether, under the facts shown in the record now being reviewed, [defendant] may be punished both for the violation of section 503 of the Vehicle Code and for the crime of grand theft, of which he was also convicted." (Ibid.) The court found, based on the information that "charged that each offense was committed on or about the same day in Humboldt County, and in the absence of any evidence showing a substantial break between [the defendant's] taking and his use of the automobile in that county, only the conviction for one offense may be sustained." (Id. at p. 715.) The Supreme Court contrasted the factual scenario in Kehoe with People v. Cuevas (1936) 18 Cal.App.2d 151, where " 'the crime of larceny of the automobile had been completed, [and] the subsequent act by the defendant in driving the automobile without the consent of its owner was entirely separate and disconnected from the original theft of it." (Kehoe, at p. 715.) While the court found the Vehicle Code section 503 violation "merged into" the grand theft conviction, this holding was based on its conclusion that the theft and subsequent driving constituted a single offense. (Kehoe, at pp. 715-716.)
In Jaramillo, supra, 16 Cal.3d 752, the other case cited by Buss, the defendant was convicted of receiving stolen property and violating Vehicle Code section 10851. (Jaramillo, at p. 754.) On appeal, the defendant argued he could not be convicted of both crimes because "one may not be convicted of stealing and of receiving the same property." (Id. at pp. 754, 757.) The Supreme Court noted when a defendant is convicted of stealing, "he cannot also be convicted of receiving that same stolen property." (Id. at p. 758.) However, if "in convicting an accused of a violation of Vehicle Code section 10851, a jury finds that the accused intended only to temporarily deprive the owner of possession for the purpose of driving a vehicle, then the accused may also be guilty of [receiving stolen property]." (Ibid.)
Neither Kehoe nor Jaramillo state Vehicle Code section 10851 is a lesser included offense of Penal Code section 487. To the contrary, Vehicle Code section 10851 is not, "by definition, necessarily and at all times is included within" Penal Code section 487. (Kehoe, supra, 33 Cal.2d at 713.) This point was recently reemphasized by the California Supreme Court in People v. Page, supra, 3 Cal.5th 1175. In evaluating whether a violation of Vehicle Code section 10851 is subject to resentencing under Proposition 47, the court distinguished that statute from Penal Code section 487. Vehicle Code section 10851's "prohibitions sweep more broadly than 'theft,' as the term is traditionally understood. Vehicle Code section 10851 punishes not only taking a vehicle, but also driving it 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.' [Citation.] Theft, in contrast, requires a taking with intent to steal the property—that is, the intent to permanently deprive the owner of its possession. [Citations.] [¶] We recognized the distinction between the theft and nontheft forms of the Vehicle Code section 10581 offense in People v. Garza [2005] 35 Cal.4th 866 . . . . In that case, we considered whether dual convictions under Vehicle Code section 10851 and Penal Code section 496, subdivision (a) (receiving stolen property) violated the statutory rule against convicting a person for both stealing and receiving the same property. We concluded the answer depended on the basis for the Vehicle Code section 10851 conviction—whether it was for stealing the automobile or for taking or driving it in another prohibited manner: 'Unlawfully taking a vehicle with the intent to permanently deprive the owner of possession is a form of theft, and the taking may be accomplished by driving the vehicle away. For this reason, a defendant convicted under section 10851(a) of unlawfully taking a vehicle with the intent to permanently deprive the owner of possession has suffered a theft conviction and may not also be convicted under section 496(a) of receiving the same vehicle as stolen property. On the other hand, unlawful driving of a vehicle is not a form of theft when the driving occurs or continues after the theft is complete. . . . Therefore, a conviction under section 10851(a) for posttheft driving is not a theft conviction . . . .' " (Page, at pp. 1182-1183, italics omitted.) The Supreme Court subsequently concluded Proposition 47 allowed resentencing only for the theft form of Vehicle Code section 10851. (Page, at p. 1183.)
In the instant case, the evidence only shows defendant was driving a stolen vehicle—conduct that, according to the Supreme Court, does not constitute theft. (People v. Page, supra, 3 Cal.5th at p. 1183 ["a conviction under [Vehicle Code] section 10851 [subdivision] (a) for posttheft driving is not a theft conviction"]; accord People v. Montoya (2004) 33 Cal.4th 1031, 1036 [Veh. Code, § 10851 was not a lesser included offense to carjacking because the accusatory pleading did "not also include the requisite allegations for the lesser offense of unlawfully taking a vehicle, which requires proof that the taking of a vehicle was without its owner's consent."].) Because the conduct at issue was so limited, any potential Vehicle Code section 10851 violation would not constitute a lesser included offense of grand theft auto. Accordingly, we conclude the second amended information did not provide defendant with notice he could be convicted of violating Vehicle Code section 10851.
The proper analysis must focus on driving as a basis for liability because the prosecution never argued defendant took the vehicle. Rather, the prosecution only argued at trial defendant unlawfully drove the vehicle. As the prosecutor explained in her closing argument, she needed to prove defendant "took it and drove it—took it or drove it, in this case driving . . . ." She further argued, "I don't have to prove to you beyond a reasonable doubt that this defendant took [the victim's] vehicle on February 19th. . . . What we're talking about is what happened on February 25th when Deputy Greenhagen saw the defendant driving [the victim's] vehicle."
A lesser offense may also be included in a greater offense " ' " 'if the charging allegations of the accusatory pleading include language describing the offense in such a way that if committed as specified the lesser offense is necessarily committed.' " ' " (In re Fernando C., supra, 227 Cal.App.4th at p. 503.) Here, the charging allegations contain no such language. Nor is it appropriate to supplement the allegations with evidence from the preliminary hearing. (People v. Macias (2018) 26 Cal.App.5th 957, 964 [explaining the California Supreme Court "found that under the accusatory pleading test, a trial court is only required to examine the accusatory pleading to assess whether a charged offense includes a lesser offense"].)
b. Informal Amendment
The Attorney General contends defendant consented to an informal amendment of the second amended information to include a Vehicle Code section 10851 violation. In support of its position, the Attorney General references the court's pretrial statement that count 1 would be tried on a "straight 10851 theory," defendant's inclusion of CALCRIM No. 1820 in his requested jury instructions, and defendant's failure to object to the court's subsequent giving of a modified CALCRIM No. 1820 instruction. We disagree.
"The 'Penal Code permits accusatory pleadings to be amended at any stage of the proceedings "for any defect or insufficiency." ' " (People v. Sawyers (2017) 15 Cal.App.5th 713, 720.) "A pleading may be amended orally. [Citations.] Additionally, under the 'informal amendment' doctrine, a defendant may, by his conduct, impliedly consent to amendment of a pleading. The ' "proceedings in the trial court may constitute an informal amendment of the accusatory pleading, when the defendant's conduct or circumstances created by him amount to an implied consent to the amendment." ' " (Id. at pp. 720-721.)
The Attorney General cites three cases in support of its position, none of which are factually comparable. People v. Sandoval (2006) 140 Cal.App.4th 111, 134, for example, rejected a defendant's argument that an unalleged prior strike should be stricken. The court noted the prosecutor had made an oral motion to amend the information to allege the strike in the presence of the defendant and his counsel, and defense counsel had stated she had no objection to the amendment. (Ibid.)
In People v. Hensel (1965) 233 Cal.App.2d 834, the court rejected the defendant's challenge to the judgment because defense counsel had urged the court to consider the lesser charge of lewd public conduct in lieu of oral copulation. (Id. at pp. 837-840.)
Finally, in People v. Rasher (1970) 3 Cal.App.3d 798, defense counsel argued the misdemeanor offense of brandishing a deadly weapon was a lesser included offense of the charged offense of assault with a deadly weapon, requested the trial court to instruct the jury on brandishing, and presented evidence at trial on both offenses. (Id. at pp. 801-802.) The defendant was convicted of brandishing and subsequently challenged his conviction on appeal. (Id. at p. 799.) The Court of Appeal noted brandishing is not a lesser included offense of assault with a deadly weapon, but nonetheless concluded the defendant had been properly convicted: "Defendant came to court knowing that he was also to defend against the misdemeanor charge, he having introduced it as an issue at the outset of the trial; he had full opportunity to and did in fact offer such defense as he had and he was represented by capable counsel, thus there was no lack of due process." (Id. at p. 803.)
Unlike the cases relied on by the Attorney General, the prosecutor never made an oral motion to amend and defendant did not advocate for the matter being tried as a Vehicle Code section 10851 violation. Count 1 was not amended until May 11, 2016. The court's pretrial statement regarding a "straight 10851 theory" occurred on May 9, 2016—two days prior to the amendment. And once the count was amended, the court disputed the prosecution's suggestion that they continue to proceed on a "straight 10851 violation." On May 11, 2016, after the court approved the second amended information and just before the start of jury selection, the trial court confirmed the language of the information it proposed reading to the jury. During this conversation, the prosecutor stated, "I think what the Court had indicated the other day is we would proceed with it as a 10851 . . . ." The court responded, "So I mean I don't want to allege in the Information that he is charged with a 10851 because he's not." The prosecutor then responded, "Right." Count 1 of the second amended information was subsequently read at the beginning of voir dire as "grand theft auto, a violation of Section 666.5 of the Penal Code . . . , in that said defendant did unlawfully take an automobile . . . ."
Nothing in these exchanges suggests an agreement to proceed with count 1 as a Vehicle Code section 10851 violation. To the contrary, the court specifically rejected the prosecution's statement that the court "proceed with it as a 10851" because defendant was not "charged with a 10851." Both parties then verbally agreed with the court's approach. The court expressly confirmed the language of the information immediately before trial and summarized the charges to the jury as "two counts, auto theft and receiving stolen property." And the prosecution summarized the charges at the beginning of her closing: "In this case, just like we discussed earlier this afternoon, the defendant is charged with two counts. He is charged with grand theft auto, and he is charged with receiving stolen property, the stolen car."
Similarly, defendant filed his requested jury instructions, which included CALCRIM No. 1820, before count 1 was amended. Accordingly, defense counsel merely submitted jury instructions reflecting the then-charged crimes. Nothing in the record suggests defendant actively reaffirmed his request for this instruction after count 1 was amended.
More problematic, however, is defense counsel's failure to object to CALCRIM No. 1820 when given by the court. Such a failure has, in certain instances, amounted to implied consent to an informal amendment. (See, e.g., People v. Toro (1989) 47 Cal.3d 966, 973, disapproved on another ground in People v. Guiuan (1998) 18 Cal.4th 558 [defendant impliedly consented to submission of uncharged crime to jury because did not object to instructions and verdict form on that crime]; People v. Whitmer (2014) 230 Cal.App.4th 906, 920 [defendant impliedly consented to alternative grand theft theory by failing to object to instruction that presented both theories].) However, we find this case distinguishable from those finding implied consent. In those cases, the jury was correctly instructed on both the charged crime and the uncharged crime. (People v. Toro, at pp. 971, 976-977; People v. Whitmer, at p. 920.) Here, however, neither the court nor the prosecution suggested Vehicle Code section 10851 was a pending charge against defendant. Neither the court nor the prosecution stated the elements in CALCRIM No. 1820 were those for a Vehicle Code section 10851 violation. Rather, they stated the opposite. At various times, the court informed the jury CALCRIM No. 1820 related to either the grand theft auto charge or the nonexistent statute "Vehicle Code Section 666.5." The prosecution also described CALCRIM No. 1820 as articulating the elements for grand theft auto: "The one instruction dealing with the [sic] grand theft auto the judge just read to you."
Moreover, the jury was not provided a verdict form to convict on Vehicle Code section 10851. The only verdict form provided for count 1 sought a determination of guilt for a "felony violation of Penal Code section 666.5, to wit: GRAND THEFT AUTO." (Compare with People v. Toro, supra, 47 Cal.3d 966, 971 [jury was instructed on, and received verdict forms for, the various uncharged offenses].) Accordingly, we decline to find defendant impliedly consented to amend the information to include a Vehicle Code section 10851 violation.
We further note, as discussed in part II.A.1., ante, defendant did not waive his objection to CALCRIM No. 1820 because it contained an erroneous statement of the law. This issue further distinguishes this case from others finding implied amendments.
3. Prejudice
The Attorney General contends defendant was not prejudiced by the references to "grand theft auto" and Penal Code section 666.5 because defendant had reasonable notice he would be tried for a Vehicle Code section 10851 violation and was not prevented from presenting a defense thereto. We disagree.
As discussed in part II.A.2., ante, defendant did not have reasonable notice he would be tried for a Vehicle Code section 10851 violation. Vehicle Code section 10851 was neither charged in the second amended information nor was it prosecuted as a lesser included offense of the actual charge of grand theft auto. (See part II.A.2.a., ante.) Likewise, defendant did not agree to an informal amendment to the information to include a Vehicle Code section 10851 charge. (See part II.A.2.b., ante.)
Despite the charge of grand theft auto, for some incomprehensible reason, the court believed it appropriate to instruct the jury with a modified version of CALCRIM No. 1820, in which the court removed one statutory provision—Vehicle Code section 10851—and replaced it with another—Vehicle Code section 666.5. The prosecutor compounded this error by explicitly alleging CALCRIM No. 1820 set forth the elements for grand theft auto.
We are absolutely baffled by the court's modification of CALCRIM No. 1820 by replacing one code section (Vehicle Code section 10851) with another (Vehicle Code section 666.5). We cannot conceive of any reasonable situation in which a court should take the elements for one crime and instruct the jury those elements relate to a different crime.
"In People v. Breverman [(1998)] 19 Cal.4th [142,] 176 . . . , our Supreme Court determined that such an [instructional] error does not justify reversal of a conviction unless the error was prejudicial under the familiar Watson standard, which precludes reversal unless . . . 'there was a reasonable probability that the error affected the outcome.' [Citation.] In applying this test, we are instructed to 'focus[ ] not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration. In making that evaluation, an appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result.' " (People v. Anderson (2006) 141 Cal.App.4th 430, 449-450, italics omitted.)
People v. Watson (1956) 46 Cal.2d 818 (Watson).
Here, defendant was prejudiced by having the jury consider unlawful driving as an element of grand theft auto. The prosecutor unilaterally decided to amend the charge against defendant. It was her prerogative to do so. (People v. Sawyers, supra, 15 Cal.App.5th at p. 720.) However, the prosecutor was then required to prove the newly alleged charge of grand theft auto. The modified CALCRIM No. 1820 instruction allowed the jury to find guilt solely based on driving the vehicle. Had the court properly instructed on grand theft auto, the prosecution would have been required to prove defendant took the vehicle. (See Pen. Code, § 487, subd. (d)(1).) Considering there were no witnesses to the actual vehicle theft, defendant's guilt is not a foregone conclusion. A properly instructed jury could have reasonably found defendant innocent of grand theft auto. Accordingly, defendant's conviction must be reversed. B. Count 2 —Receiving Stolen Property
Because we reverse, we do not address the remaining arguments raised by defendant as to count 1.
Defendant argues his conviction for receipt of stolen property should be reversed because the court erroneously instructed on CALCRIM No. 372 (Flight) and CALCRIM No. 362 (Consciousness of Guilt—False Statement). He further contends he was prejudiced by the prosecutor's closing argument discussing the reasonable doubt standard. We reject these arguments as addressed below.
1. Jury Instructions
"We review de novo whether a jury instruction correctly states the law. [Citations.] Our task is to determine whether the trial court ' "fully and fairly instructed on the applicable law." [Citation.]' . . . If reasonably possible, we will interpret the instructions to support the judgment rather than to defeat it. [Citation.] Instructional error affects a defendant's substantial rights if the error was prejudicial under the applicable standard for determining harmless error." (People v. Franco (2009) 180 Cal.App.4th 713, 720.)
a. CALCRIM No. 372
Over defense objection, the court instructed the jury on CALCRIM No. 372 (Flight) as follows: "Now, if the defendant fled or tried to flee immediately after the crime was committed, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled or tried to flee, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled or tried to flee cannot prove guilt by itself." Defendant asserts the evidence did not support a flight instruction because there was no indication of flight or evasiveness. He argues there was no evidence defendant was aware of Greenhagen's pursuit when he drove into the restaurant parking lot, parked, and left the vehicle. Defendant notes he left the car key and his cell phone in the car, was walking in plain sight, made no evasive maneuvers, and was cooperative with Greenhagen's commands. As a result, he contends the trial court violated his right to due process and committed prejudicial error when it gave the jury a flight instruction. We disagree.
" 'A permissive inference violates the Due Process Clause only if the suggested conclusion is not one that reason and common sense justify in light of the proven facts before the jury.' " (People v. Mendoza (2000) 24 Cal.4th 130, 180.) "[A] flight instruction 'is proper where the evidence shows that the defendant departed the crime scene under circumstances suggesting that his movement was motivated by a consciousness of guilt.' [Citations.] ' "[F]light requires neither the physical act of running nor the reaching of a far-away haven. [Citation.] Flight manifestly does require, however, a purpose to avoid being observed or arrested." ' " (People v. Bradford (1997) 14 Cal.4th 1005, 1055.) To obtain the instruction, the prosecution need not prove the defendant in fact fled, i.e., departed the scene to avoid arrest, only that a jury could find the defendant fled and permissibly infer a consciousness of guilt from the evidence." (People v. Bonilla (2007) 41 Cal.4th 313, 328.)
Here, the evidence indicates defendant turned the vehicle to follow Greenhagen and then turned into the restaurant parking lot before Greenhagen could turn around. The car was parked unlocked with the key in the ignition. Defendant was detained walking away from the car. The parties disagree on the implication of these facts. Defendant claims the presence of his belongings in the car indicated an intent to return, and he was simply waiting for his friend to get food from the restaurant. The Attorney General asserts defendant fled because he left the keys in the vehicle's ignition and was walking away from the restaurant. Despite the divergent explanations for defendant's movements, the evidentiary basis for the flight instruction requires sufficient, not uncontradicted, evidence. (People v. Richardson (2008) 43 Cal.4th 959, 1020.) We agree with the Attorney General the evidence satisfied this standard. (People v. Bonilla, supra, 41 Cal.4th at p. 328 ["To obtain the instruction, the prosecution need not prove the defendant in fact fled, i.e., departed the scene to avoid arrest, only that a jury could find the defendant fled and permissibly infer a consciousness of guilt from the evidence."].) Therefore, the trial court did not err in giving the instruction.
In any event, even assuming it was error to give the instruction, the error was harmless under any standard because "the instruction did not assume that flight was established, leaving that factual determination and its significance to the jury." (People v. Visciotti (1992) 2 Cal.4th 1, 61.) The cautionary language in the instructions also benefits defendant because it specifically admonishes the jury that such evidence alone is insufficient to establish guilt. (See People v. Boyette (2002) 29 Cal.4th 381, 438-439.)
b. CALCRIM No. 362
The court instructed the jury with CALCRIM No. 362: "Now, if the defendant made a false or misleading statement before this trial relating to the charged crime knowing the statement was false, or intending to mislead, that conduct may show he was aware of his guilt of the crime and you may consider it in determining his guilt. If you conclude the defendant made the statement, it is up to you to decide its meaning and importance. However, evidence that the defendant made such a statement cannot prove guilt by itself."
Defendant argues neither of the alleged false statements identified by the prosecution supported giving the instruction. We disagree.
" 'False statements regarding incriminating circumstances constitute evidence which may support an inference of consciousness of guilt.' " (People v. Flores (2007) 157 Cal.App.4th 216, 221.) The false nature of the defendant's statement may be shown by inconsistencies in the defendant's own testimony, his or her pretrial statements, or by any other prosecution evidence. (People v. Kimble (1988) 44 Cal.3d 480, 498.) Accordingly, "[a] trial court properly gives consciousness of guilt instructions where there is some evidence in the record that, if believed by the jury, would sufficiently support the inference suggested in the instructions." (People v. Bowman (2011) 202 Cal.App.4th 353, 366.)
Here, Deputy Merz testified defendant stated he was going to Maggie's Restaurant when he was detained. Greenhagen, the arresting officer, testified he intercepted defendant on the border of the street and the parking lot, and defendant was walking away from the restaurant. Defendant argues his statement was not false because his companion went to the restaurant. But the evidence does not reflect defendant stating as much to the police. Rather, the evidence indicates defendant stated he was going to the restaurant. In light of this evidence, the trial court properly instructed the jury with CALCRIM No. 362. (See People v. Edwards (1992) 8 Cal.App.4th 1092, 1103 ["The giving of CALJIC No. 2.03 [(the predecessor to CALCRIM No. 362)] is justified where there exists evidence that the defendant prefabricated a story to explain his conduct."].) Under the conditional language of CALCRIM No. 362, the jury would initially have to decide whether defendant's pretrial statement to Merz was, in fact, false or misleading. If it found the statement was false or misleading, it could then consider whether the statement indicated an awareness of guilt and, in turn, what meaning and weight to ascribe to the statement. Under the circumstances, it was appropriate to permit the jury to make these determinations.
Because we conclude defendant's statement regarding his movements supported the CALCRIM No. 362 instruction, we need not address whether defendant's statement about the car's ownership also supported the instruction.
2. Prosecution's Closing Argument
Defendant contends the prosecutor committed misconduct during closing argument by mischaracterizing the reasonable doubt standard.
The applicable standards regarding prosecutorial misconduct are well-settled. A prosecutor's behavior violates the federal Constitution " 'when it comprises a pattern of conduct "so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process." ' " (People v. Gionis (1995) 9 Cal.4th 1196, 1214-1215.) Conduct by a prosecutor that does not render a criminal trial fundamentally unfair constitutes prosecutorial misconduct under state law only if it involves " ' "the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury." ' " (People v. Espinoza (1992) 3 Cal.4th 806, 820.)
a. Relevant Factual Background
In her rebuttal argument—amounting to approximately one and a half pages of the trial transcript—the prosecutor first discussed the reasonable doubt standard and then analyzed reasonable interpretations of the evidence.
In discussing the applicable standard, the prosecutor identified CALCRIM No. 220 as the relevant jury instruction on reasonable doubt, and then read a portion of that instruction to the jury: "Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt." The prosecutor then asked, "what is reasonable," stating, "Is it possible that an airplane could crash into this courtroom right here right now while we're sitting here? Sure. It's possible. But is that reasonable? And what we are talking about here is what is reasonable." She stated she only must prove beyond a reasonable doubt defendant drove the vehicle, not that he took the vehicle.
Following this general commentary, the prosecutor next addressed the case facts more specifically. She discussed what "reasonable interpretation" should be drawn from various pieces of evidence. She concluded by stating, "This is the evidence, and this is the reasonable interpretation of it. I'm asking you to find the defendant guilty."
b. Forfeiture
The Attorney General contends defendant's claim of prosecutorial error is forfeited because he failed to timely object in the trial court. We agree. As our Supreme Court discussed in People v. Centeno (2014) 60 Cal.4th 659, "As a general rule, ' "[a] defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion, and on the same ground, the defendant objected to the action and also requested that the jury be admonished to disregard the perceived impropriety." ' [Citation.] The defendant's failure to object will be excused if an objection would have been futile or if an admonition would not have cured the harm caused by the misconduct. [Citation.] [¶] . . . A prosecutor's misstatements of law are generally curable by an admonition from the court." (Id. at p. 674.)
Defendant has not alleged an objection or admonition would have been futile. Nor does the record indicate as much. Accordingly, defendant's claim of prosecutorial misconduct during closing arguments is forfeited.
c. Ineffective Assistance of Counsel
Defendant argues this court should address the merits of this claim because defense counsel's failure to object amounted to ineffective assistance of counsel.
" 'A defendant whose counsel did not object at trial to alleged prosecutorial misconduct can argue on appeal that counsel's inaction violated the defendant's constitutional right to the effective assistance of counsel.' [Citation.] Defendant advances that claim here. He bears the burden of showing by a preponderance of the evidence that (1) counsel's performance was deficient because it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficiencies resulted in prejudice." (People v. Centeno, supra, 60 Cal.4th at p. 674.) In order to show prejudice, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland v. Washington (1994) 466 U.S. 668, 694.)
" 'Unless a defendant establishes the contrary, we shall presume that "counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy." ' [Citations.] When the record on direct appeal sheds no light on why counsel failed to act in the manner challenged, defendant must show that there was ' " 'no conceivable tactical purpose' " for counsel's act or omission. [Citations.]' [Citation.] '[T]he decision facing counsel in the midst of trial over whether to object to comments made by the prosecutor in closing argument is a highly tactical one' [citation], and 'a mere failure to object to evidence or argument seldom establishes counsel's incompetence' [citation]." (People v. Centeno, supra, 60 Cal.4th at pp. 674-675.)
Here, defendant has failed to demonstrate a reasonable probability that the outcome of his trial could have been different absent his counsel's failure to object. When considered in the context of defense counsel's closing argument, the rebuttal argument did not advocate a lower standard of proof. Defense counsel distinguished the reasonable doubt standard from the concepts of "might be," "possibly," and "probably." She then discussed at length various pieces of evidence indicating "a reasonable person" would not assume the vehicle was stolen. The rebuttal argument merely responded to these points, noting what the prosecution believed was a "reasonable interpretation" of the evidence.
The one questionable aspect of the prosecutor's rebuttal was the airplane analogy. But that analogy was made immediately after the prosecutor read CALCRIM No. 220 (Reasonable Doubt) to the jury and immediately before stating the prosecution must prove beyond a reasonable doubt defendant drove the vehicle. In this context, any potential error was harmless. (See People v. Katzenberger (2009) 178 Cal.App.4th 1260, 1268 [" '[A]rguments of counsel "generally carry less weight with a jury than do instructions from the court. The former are usually billed in advance to the jury as matters of argument, not evidence [citation], and are likely viewed as the statements of advocates; the latter, we have often recognized, are viewed as definitive and binding statements of the law." ' "].) Accordingly, defendant has not demonstrated ineffective assistance of counsel.
We need not address defendant's claim of cumulative error because we have found no error to cumulate.
III. DISPOSITION
Defendant's conviction on count 1 for grand theft auto is reversed. Defendant's conviction on count 2 for receipt of stolen property is affirmed.
/s/_________
Margulies, Acting P.J. We concur: /s/_________
Banke, J. /s/_________
Kelly, J.
Judge of the Superior Court of the City and County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.