Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 061781
HULL, J.A jury convicted defendant Dana Brant Lovitt of grand theft of property exceeding $400 in value (Pen. Code, §§ 484, subd. (a), 487, subd. (a); unspecified section references that follow are to the Penal Code), and acquitted him of an alternative count charging receipt of stolen property (§ 496, subd. (a)). Sentenced to a prison term of three years, defendant appeals, contending that the trial court erred in failing to instruct the jury that his pretrial statements should be viewed with caution. The People concede that this instruction should have been given, but contend that defendant suffered no prejudice. We agree that the error was harmless, and therefore affirm the judgment.
FACTS AND PROCEEDINGS
The victim owned a classic Chris-Craft boat that was painted red on the bottom and white on top, with a gold stripe at the water line. He stored the boat and trailer in Clarksburg, in the barn of a friend, Steve S.
On the afternoon of February 9, 2006, Steve S. was at a store in Clarksburg when he saw a blue-green Chevrolet SUV pulling the victim’s boat “go flying by.” The vehicle was going approximately 70 miles an hour in a 35 mile-per-hour zone. The tarp covering the boat was flapping and Steve S. could see the boat clearly. He tried to follow the SUV, but lost the vehicle at the Freeport Bridge.
On February 14, 2006, after the theft was reported to the Yolo County Sheriff’s Office, Deputy Harmon spoke to Steve S. Harmon then reviewed the February 6 videotape from the surveillance camera on the bridge and saw footage of the green SUV pulling the boat and trailer. The boat matched the description of the one stolen. However, Harmon could not get a license plate number for the SUV from the videotape.
On February 27, 2007, Harmon was off-duty and driving past the barn where the boat had been housed. A green SUV coming in the opposite direction drove very slowly down the road, and the driver looked toward the barn. Harmon made a U-turn to follow the SUV, but the SUV had also made a U-turn and again drove slowly past the barn. As the vehicles passed each other the second time, Harmon got the license plate number and also got a good look at the driver; he later identified defendant as the driver. Harmon waited and then turned around again; the SUV also made another U-turn. When the vehicles passed each other for the third time, the driver looked right at Harmon and then accelerated and sped off. Harmon turned around again and tried to follow, but lost the vehicle.
The SUV was registered to defendant. Harmon went to defendant’s home and spoke to defendant’s girlfriend who also lived there. The girlfriend told him that defendant often bought and sold boats, and also said that defendant drove a green SUV.
Harmon also described the boat to a neighbor across the street. The neighbor said he had seen a boat like that parked on a boat trailer in front of defendant’s house a few weeks earlier. The boat had been there only one night and was gone the next day. The neighbor added, unsolicited, that the boat was painted red on the bottom.
Harmon subsequently contacted defendant by phone. Defendant told him where the boat was located. He did not admit taking the boat, but said that his truck might have been involved. He told Harmon that he had been misled by “a guy” who took the boat because he was owed money by someone. At one point, he said that “they” went out to get the boat and at another point said that “some guy” had gone there. Defendant refused to identify this third person.
Harmon found the boat where defendant had indicated, at a Sacramento apartment complex. The license plate had been removed from the trailer, and the identification numbers on the boat had been scraped but were still legible.
An information charged defendant in count 1 with grand theft of property exceeding $400 in value, and in count 2 with receiving stolen property. The prosecutor tried these charges in the alternative.
Various witnesses testified at trial and Harmon described his investigation. The jury convicted defendant of grand theft and, as required, acquitted on the alternative charge of receiving stolen property.
The trial court sentenced defendant to a prison term of three years, and this appeal followed.
DISCUSSION
Defendant’s sole contention is that the court should have instructed the jury to view his comments to Deputy Harmon with caution. We agree, but conclude the error was harmless.
At trial, Deputy Harmon summarized and paraphrased the unrecorded telephone conversation he had with defendant. According to Harmon, defendant “was concerned that he didn’t want to get into trouble for the theft.” Defendant told Harmon where the boat was located and said he “was misled by this guy, that this guy--they went to get the boat because somebody owed this guy money[.]” Defendant refused to identify this third person, and said that he did not know what was going on.
Defendant admitted that his car was involved in getting the boat from Yolo to Sacramento County, but would not admit that he was there. Harmon said that defendant originally said that “they” went out there, but later said “some guy” went out there. Harmon added, “He didn’t say I wasn’t there so much as it was this guy did this, and this guy misled me, and he got it because he was owed money, and just things like that. It was never, a, oh, I wasn’t there, or tell me who this guy was.” Harmon said that defendant essentially gave two different versions of how the theft occurred, “one being they went out and ultimately it was the guy.”
The trial court instructed the jury pursuant to CALCRIM No. 358 as follows: “You have heard evidence that the defendant made an oral statement before the trial. You must decide whether or not the defendant made any such statement, in whole or in part. If you decide that the defendant made such a statement, consider the statement, along with all the other evidence, in reaching your verdict. It is up to you to decide how much importance to give to such a statement.”
However, the court did not give the final bracketed sentence of this instruction, which provides: “You must consider with caution evidence of a defendant’s oral statement unless it was written or otherwise recorded.” (CALCRIM No. 358.)
Defendant contends that the failure to instruct that defendant’s statement must be viewed with caution constitutes reversible error. The People concede that the court erred, but contend that the error was harmless. We agree with the People.
“When the evidence warrants, the court must instruct the jury sua sponte to view evidence of a defendant’s oral admissions or confession with caution.” (People v. Dickey (2005) 35 Cal.4th 884, 905.) As the People recognize, the court’s failure to do so in this case was error. That error, however, was harmless.
The standard of review for failing to give the required cautionary instruction is “the normal standard of review for state law error: whether it is reasonably probable the jury would have reached a result more favorable to defendant had the instruction been given.” (People v. Carpenter (1997) 15 Cal.4th 312, 393.)
Defendant asserts that “[h]ad the jury treated these purported admissions with great caution, it could not have found beyond a reasonable doubt that [defendant’s] truck had towed the stolen boat and trailer on the day of the theft.” We do not agree.
Steve S. testified that on the afternoon of February 9, 2006, he saw a blue-green Chevrolet SUV “flying by” on River Road, pulling the victim’s boat. Video surveillance from a nearby bridge confirmed the presence of such a vehicle at that time. A few weeks later, Deputy Harmon saw a vehicle matching this description driving back and forth on the road near the barn where the boat had been housed. Harmon not only got the license plate number of the truck, but also got a good look at the driver, and identified him as defendant. The vehicle was registered to defendant, and defendant’s former girlfriend confirmed that defendant owned such a vehicle. She also said that defendant bought and sold boats, and the neighbor across the street told Harmon that he had seen a boat like the victim’s parked in front of defendant’s house a few weeks earlier. The neighbor also told Harmon that the boat had a red painted bottom.
Overwhelming evidence linked defendant to the green SUV and the theft of the boat and trailer. Contrary to defendant’s claims, the prosecutor focused on this evidence in her arguments to the jury and made only passing references to defendant’s statements; she emphasized defendant’s statements only in conjunction with the charge of receipt of stolen property, a count on which defendant was acquitted.
Under these circumstances, it is not reasonably probable that the jury would have reached a different decision had a cautionary instruction been given. The error was therefore harmless.
DISPOSITION
The judgment is affirmed.
We concur: DAVIS, Acting P.J., CANTIL-SAKAYUE, J.