Opinion
2d Juv. No. B285723
07-14-2020
In re L.T., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. L.T., Defendant and Appellant.
Law Offices of Esther R. Sorkin and Esther R. Sorkin, under appointment by the Court of Appeal for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Stephanie A. Miyoshi, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. TJ21881)
(Los Angeles County)
This case raises the adage that possession is nine tenths of the law. When a defendant is charged with receiving a stolen vehicle (Pen. Code, § 496d), possession of a recently stolen vehicle raises the inference that the defendant knew the vehicle was stolen and only slight corroborating evidence is required for a finding of guilt. (People v. McFarland (1962) 58 Cal.2d 748, 754 (McFarland).) The same principle applies to the posttheft driving of a recently stolen vehicle. (Veh. Code, § 10851, subd. (a); People v. Green (1995) 34 Cal.App.4th 165, 181 (Green).)
All statutory references are to the Penal Code unless otherwise stated.
L.T. appeals a juvenile court order declaring him a ward of the court (Welf. & Inst. Code, § 602) after the trial court sustained a petition for taking or driving a vehicle without the owner's consent (count 1; Veh. Code, § 10851, subd. (a)) and receiving a stolen vehicle (count 2; Pen. Code, § 496d). The trial court ordered camp-community placement and found the maximum period of confinement was four years, four months. We vacate the disposition order and remand because the trial court failed to declare whether the offenses were felonies or misdemeanors. (Welf. & Inst. Code, § 702; In re Manzy W. (1997) 14 Cal.4th 1199, 1204.)
Facts and Procedural History
On the morning of August 1, 2017, Ronnie Wilson left the keys in his 2001 Jeep Cherokee at a gas station in Los Angeles. Someone stole the Jeep when Wilson went inside to pay for the fuel.
The next day, at 2:00 in the morning, Officer Mason Hill saw the Jeep stopped in the middle of 108th Street, about three miles from the gas station. Officer Hill confirmed the vehicle was stolen and made a U-turn. Appellant had three minors in the Jeep and pulled the Jeep to the curb before Officer Hill approached. The Jeep owner was called to the scene and identified the vehicle. He did not know appellant or give him permission to drive the vehicle.
At trial, the prosecution argued "[w]e don't know who stole [the vehicle], but the fact is it was stolen." The trial court stated "the issue of knowledge or intent is the critical issue here" and "this is at least the third petition that [appellant] has had for this same charge." It was a concern because two petitions for felony car theft were sustained in 2014 and 2015. The trial court found the prior petitions were "relevant to imput[e] knowledge to [appellant] that he knows that when he's driving somebody else's car and he doesn't know the owner, then it is very likely that you [will] get charged and arrested and punished for driving someone else's car. I think that that is sufficient for me to be convinced beyond a reasonable doubt that [appellant] was aware that it was a stolen car. He knew it wasn't his car. He knew he hadn't been given permission to drive it."
Sufficiency of the Evidence
Appellant argues that the evidence does not support the finding he knew the Jeep was stolen. As in any sufficiency of the evidence appeal, we review the record in the light most favorable to the judgment and consider the existence of every fact the trier of fact could reasonably deduce from the evidence in sustaining the petition. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; In re M.H. (2016) 1 Cal.App.5th 699, 706 [same].)
"By its terms, [Vehicle Code section 10851, subdivision (a)] can be violated in two ways - by taking the vehicle (theft) or by driving the stolen vehicle after the theft is complete (posttheft driving). [Citation.]" (People v. Calistro (2017) 12 Cal.App.5th 387, 394 (Calistro).) The posttheft driving of a stolen vehicle must be with the specific intent to permanently or temporarily deprive the owner of title or possession. (People v. Page (2017) 3 Cal.5th 1175, 1183, 1188 (Page).) Knowledge that the vehicle was stolen is not an element of posttheft driving but is circumstantial evidence of intent to deprive the owner of title or possession. (Green, supra, 34 Cal.App.4th at p. 180.) "'Once the unlawful taking of the vehicle has been established, possession of the recently taken vehicle by the defendant with slight corroboration through statements or conduct tending to show guilt is sufficient to sustain a conviction under Vehicle Code section 10851. [Citation.]' [Citations.]" (Id. at p. 181.)
Appellant's operation of the Jeep in the early morning hours was sufficient to draw the inference that he knew the Jeep was stolen. (See, e.g., People v. Anderson (1989) 210 Cal.App.3d 414, 424 [discussing time, place, and manner attributes of unlawful possession].) Appellant stopped the Jeep in the middle of the street and had three passengers, all minors. One passenger was a runaway. When Officer Hill spotted the Jeep, appellant immediately pulled over to the curb and offered no explanation how he came into possession of the vehicle.
"[S]light corroboration that permits an inference that the possessor knew that the property was stolen may consist of no explanation, of an unsatisfactory explanation, or of other suspicious circumstances that would justify the inference. [Citation.]" (People v. O'Dell (2007) 153 Cal.App.4th 1569, 1575.) That is common sense. A trier of fact would naturally and reasonably conclude that if appellant purchased or acquired possession of the Jeep "'honestly he would be swift to declare and explain the circumstances that vindicated his conduct. . . . His silence, when it would have been so easy for him to speak if innocent, is quite persuasive and convincing.' [Citation.]" (McFarland, supra, 58 Cal.2d at pp. 754-755, citing People v. Wells (1960) 187 Cal.App.2d 324, 331-332.) "The great weight of authority in other jurisdictions recognizes that an inference of guilt is admissible where recently stolen property is found in the conscious possession of a defendant and the possession is not explained. [Citations.]" (McFarland, supra, at p.755.)
In Green, supra, 34 Cal.App.4th 165, officers saw defendant driving a vehicle that was recently stolen. Defendant turned into a parking lot next to a restaurant lot he just left, and got out of the car with the engine running. (Id. at p. 172.) The Court of Appeal concluded there was sufficient evidence to infer that defendant knew the car was stolen. (Id. at p. 181.) Appellant opines that Green is distinguishable because a screwdriver was used to start the vehicle. But "evidence of a tampered ignition merely reflects the method by which the vehicle was taken rather than specific intent to deprive the owner of possession of the car. [Citation.] Nonetheless, such evidence when coupled with other evidence may support a finding of intent to deprive the owner of possession. [Citation.] In addition to operating the car without an ignition key . . . , appellant was discovered driving the car within four days after it had been stolen. [Citation.] [¶] Moreover, the jury was entitled to infer consciousness of guilt from the fact that appellant, who admitted knowing a black and white police car was behind him, immediately turned into the parking lot of the motel which was adjacent to the parking lot . . . where appellant had just exited . . . ." (Ibid.)
Appellant pulled to the curb before Officer Hill directed him to stop and offered no explanation how he acquired possession of a Jeep stolen hours earlier in the same vicinity. Appellant argues that he may have had innocent explanation why he was driving a stolen vehicle at 2:00 in the morning with a runaway minor, but the trial court is presumed to have considered that. (See People v. Garza (2005) 35 Cal.4th 866, 882 (Garza) [knowledge inferred where defendant found in driver's seat of car reported stolen six days earlier, with key in ignition and motor running]; People v. Najera (2008) 43 Cal.4th 1132, 1138 [no sua sponte duty to instruct on how to weigh circumstantial evidence of possible innocent possession].) The trial court found that appellant had two sustained petitions for car theft and "given the previous experiences with the juvenile justice system I can infer knowledge." That was a reasonable inference to draw. "'Evidence of prior petitions sustained for the same offense is relevant to knowledge of the wrongfulness of conduct and admissible under Evidence Code section 1280 as official records.' [Citations.]" (In re Nirran W. (1989) 207 Cal.App.3d 1157, 1161.) It is not our function to reweigh the evidence or make inferences other than those reasonably made by the trial court. (People v. Alexander (2010) 49 Cal.4th 846, 883.)
Prior Sustained Petitions for Car Theft
Appellant claims the trial court erred in considering the prior sustained petitions for car theft as circumstantial evidence of knowledge. A trial court may take judicial notice of records and orders in its own file. (In re Martin L. (1986) 187 Cal.App.3d 534, 539 [judicial notice of prior sustained petitions for the same offense].) Appellant speculates the trial court may have relied on inadmissible social studies and probation reports, but the trial court was familiar with the wardship orders and had supervised appellant's case for several years. It took no leap of logic to draw the inference that appellant knew the Jeep was stolen.
Knowledge that a vehicle is stolen is akin to the absence of mistake or accident and may be proven by prior bad acts. (Evid. Code, § 1101, subd. (b); People v. Roldan (2005) 35 Cal.4th 646, 705-706, overruled in part on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421 fn. 22.) The least degree of similarity between the prior bad act and the charged offense is required to prove intent or knowledge. (People v. Ewoldt (1994) 7 Cal.4th 380, 402.) Appellant contends that the prior car thefts were not sufficiently similar, but did not object on that ground, thus forfeiting the issue and the other issues he raises for the first time on appeal. (Evid. Code, § 353, subd. (a); People v. Kipp (2001) 26 Cal.4th 1100, 1124; Doolin, supra, at p. 437 [forfeiture; no trial objection that prior bad acts evidence violated Evidence Code sections 1101 and 1102]; People v. Thomas (1992) 2 Cal.4th 489, 520 [same].) On the merits, appellant makes no showing it is reasonably probable he would have obtained a more favorable result had the trial court not considered the prior sustained petitions. (People v. Malone (1988) 47 Cal.3d 1, 22 [erroneous admission of other-crimes evidence reviewed under People v. Watson (1956) 46 Cal.2d 818].) Intent and knowledge were clearly established.
Appellant made a general objection to the trial court's use of the prior sustained petitions but did not request or obtain a ruling on the objection, thus forfeiting the claim on appeal. (People v. Braxton (2004) 34 Cal.4th 798, 813-814 [failure to press for a ruling generally forfeits contention of error].) Appellant complains that he did not receive notice that the trial court was considering the prior sustained petitions but did not object on that ground or request a continuance, which suggests that the alleged notice defect was not prejudicial. (People v. Young (2005) 34 Cal.4th 1149, 1209.) Nor does appellant say how he could have rebutted the prior sustained petitions. (People v. McDowell (2012) 54 Cal.4th 395, 422.) Appellant claims the prior bad acts evidence violated his due process rights and right of confrontation but did not object on that ground. Having waived the issue, appellant may not raise it for the first time on appeal. (People v. Champion (1995) 9 Cal.4th 879, 918 [due process objection forfeited]; People v. Rodrigues (1994) 8 Cal.4th 1060, 1116, fn. 20 [same]; People v. Skiles (2011) 51 Cal.4th 1178, 1189 [right to confrontation objection forfeited]; Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305, 313, fn. 3 [right to confrontation may be waived by failing to object].)
Proposition 47 - Value of Stolen Vehicle
Appellant argues that it is unclear whether count 1 for violation of Vehicle Code section 10851 was a theft offense because the statute can be violated by taking a vehicle (a theft) or by driving a stolen vehicle after the theft is complete (posttheft driving). (See Calistro, supra, 12 Cal.App.5th at p. 394 [discussing how Veh. Code., § 10851 can be violated two different ways].) Although the petition alleged unlawful driving or taking, the case was tried on the theory that it was a posttheft driving. Appellant's trial attorney argued there was no evidence "linking [appellant] with th[e] initial taking of the vehicle" but appellant "was most certainly driving the car, but that is a different offense."
Under Proposition 47, the theft of a vehicle worth $950 or less is petty theft and may only be punished as a misdemeanor. (Page, supra, 3 Cal.5th at p. 1187.) But the posttheft driving of a stolen vehicle is not a theft within the meaning of Proposition 47 (id. at p. 1183; Garza, supra, 35 Cal.4th at p. 871) and does not require proof that the vehicle was worth more than $950. (People v. Lara (2019) 6 Cal.5th 1128, 1136 (Lara).) Lara holds that a conviction under Vehicle Code section 10851, subdivision (a) for posttheft driving is not a theft conviction for purposes of Proposition 47. (Lara, at p. 1136.) This principle is dispositive of appellant's claim and recently restated in People v. Bullard (2020) 9 Cal.5th 94 which discusses the interaction between Proposition 47 and a Vehicle Code section 10851 posttheft driving offense. (Id, at pp. 104-105 [discussing "architecture of the vehicle takings laws"].)
Equal Protection
Appellant argues that proof of a $950+ valuation is required to avoid the equal protection problem of disparate punishment for theft of a low value car (a misdemeanor) and the posttheft driving of the same car (a felony-misdemeanor wobbler). The Bullard court did not address the issue, but the equal protection analysis is straightforward. Defendants who commit different crimes are not similarly situated (a threshold requirement for an equal protection violation) and may be punished differently. (People v. Guzman (2005) 35 Cal.4th 577, 591-592; People v. Doyle (2013) 220 Cal.App.4th 1251, 1266.) Stated another way, defendants who violate the unlawful driving prong of Vehicle Code section 10851, subdivision (a) are not similarly situated to those who commit a theft by violating the unlawful taking prong of the statute. (People v. Morales (2019) 33 Cal.App.5th 800, 809 (Morales).) That is because unlawful posttheft driving is a separate, distinct violation of Vehicle Code section 10851 and is not a theft offense. (Lara, supra, 6 Cal.5th at pp. 1136-1137).
"Garza made clear that stealing a vehicle and continuing to drive it after the theft is complete constitute 'separate and distinct violations of [Vehicle Code] section 10851(a)' (Garza, [supra, 35 Cal.4th] at p. 880), with the posttheft driving 'properly regarded as a nontheft offense' (id. at p. 881). And Garza itself recognized that different consequences may properly flow to defendants who violate section 10851 in different ways. [Citation.] In asking this court to compare persons convicted of vehicle theft to persons convicted of the different, 'separate and distinct' violation of posttheft driving, [appellant] invites us to consider classes that are not similarly situated. [Citation.] Thus, having failed to establish that the unequally treated classes are similarly situated, [appellant's] 'equal protection claim cannot succeed, and does not require further analysis.' [Citation.]" (Morales, supra, 33 Cal.App.5th at pp. 808-809.)
Receiving a Stolen Vehicle
Appellant argues that receiving a stolen vehicle (count 2; § 496d) is a misdemeanor under Proposition 47 if the value of the Jeep is $950 or less. Section 496d, however, is not a theft offense and is not on the statutory list of felony theft offenses that were reduced to misdemeanors by Proposition 47. (See §§ 490.2, 496.) That was the holding in People v. Orozco (2020) 9 Cal.5th 111, 115. Although Proposition 47 amends section 496 to provide that the receipt of low-value stolen property is a misdemeanor, it does not amend section 496d or extend to convictions for receiving a stolen vehicle under section 496d. (Id. at pp. 115 & 123.)
Determination that Offenses were Felonies
Appellant complains that the trial court did not expressly declare whether the offenses are misdemeanors or felonies. (In re Manzy, supra, 14 Cal.4th at p. 1204 [discussing Welf. & Inst. Code, § 702 mandatory duty of trial court at disposition hearing]; see People v. Lee (2017) 16 Cal.App.5th 861, 866 [posttheft driving (Veh. Code, § 10851, subd (a)) and receiving a stolen vehicle (§ 496d) are wobbler offenses, punishable as felonies or misdemeanors].) The unsigned disposition order has a checked box stating that the offenses were declared to be felonies, but that is insufficient. (In re Manzy, at pp. 1207-1208.) "[N]either the pleading, the minute order, nor the setting of a felony-level period of physical confinement may substitute for a declaration by the juvenile court as to whether an offense is a misdemeanor or felony. [Citation.]" (Id. at p. 1208.) The trial court's "failure to make the mandatory express declaration requires remand of this matter for strict compliance with Welfare and Institutions Code section 702." (Id. at p. 1204.)
Disposition
The September 25, 2017 disposition order is vacated. The matter is remanded to the trial court to exercise its discretion under Welfare and Institutions Code section 702 and expressly declare whether each count is a felony or misdemeanor, and to issue a new dispositional order accordingly. The trial court's jurisdictional findings are affirmed.
NOT TO BE PUBLISHED.
YEGAN, Acting P. J. We concur:
PERREN, J.
TANGEMAN, J.
Catherine J. Pratt, Judge
Superior Court County of Los Angeles
Law Offices of Esther R. Sorkin and Esther R. Sorkin, under appointment by the Court of Appeal for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Stephanie A. Miyoshi, Deputy Attorney General, for Plaintiff and Respondent.