Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05CRF7804
DAVIS, J.
A jury convicted defendant Mario Martinez of unlawfully driving or taking a vehicle (Veh. Code, § 10851, subd. (a)--count I), receiving the same stolen car (Pen. Code, § 496d, subd. (a) --count II), and driving while his privilege was suspended (Veh. Code, § 14601.1, subd. (a)--count III). Defendant admitted one prior conviction of assault with a firearm (Pen. Code, §§ 667, subds. (b)-(i), 1170.12), four prior convictions of driving while his privilege was suspended or revoked (Veh. Code, § 14601.1), and service of one prior prison term (Pen. Code, § 667.5, subd. (b)). He was sentenced on count I to state prison for the upper term of three years, doubled because of the prior strike conviction, plus one year for the prior prison term. On count II, sentence was stayed pursuant to Penal Code section 654. On count III, he received a concurrent term of 80 days in county jail.
Hereafter, undesignated section references are to the Penal Code.
On appeal, defendant contends his convictions must be reversed because the prosecution introduced irrelevant but highly prejudicial gun evidence at trial. He claims counts I and III must be reversed because the trial court failed to give a unanimity instruction on its own motion. Finally, he claims that his upper term sentence on count I violates Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856] (Cunningham). We shall affirm the judgment and order correction of the abstract of judgment.
Facts
Prosecution case-in-chief
In November 2004, Saied Camkar purchased a white Toyota Camry. There was nothing in the location where the rear license plate typically is affixed. Within a week, the car was stolen out of Camkar’s garage.
Approximately four or five times in December 2004 or January 2005, Paul Medina, the father of defendant’s girlfriend, Amparo, saw defendant driving a white Toyota with “CarMax” paper license plates. Defendant would park the car in front of Medina’s house. On each occasion, defendant was the driver, and Amparo and her two sons got out of the car. Medina viewed a photograph of Camkar’s stolen car and identified it as the one he had seen defendant drive and park.
On January 24, 2005, Sacramento County Sheriff’s Deputy Robert Book was parked in a driveway in a rural area. As he stood outside his patrol car, he saw a car approaching on the adjacent two-lane road. The car was traveling at a high rate of speed and its headlights were not illuminated. Book pulled out his flashlight, illuminated the car’s interior and observed three occupants. The driver appeared to be a white or Hispanic male wearing a dark jacket and a white hat. Book entered his patrol car, activated his overhead lights and siren, and pursued the car. During a high-speed chase that reached approximately 135 miles per hour, Book observed the car to be a white compact with a CarMax paper license plate. The chase proceeded from Sacramento County to Ione in Amador County. When the cars entered a residential area, Book terminated the pursuit.
Approximately 30 minutes later, Ione Police Corporal Christopher Frey was dispatched to a modular home park to investigate a report of a possible kidnapping. Upon his arrival, Frey spoke with Felix Ramos, who appeared disoriented. Ramos was wearing a red hat; his pants were wet. Other than a red mark on the side of his head, Ramos did not have any visible injuries. He gave a vague description of the alleged kidnappers. Because Ramos mentioned that a gun had been involved, Frey called for additional police units. Ramos agreed to go back to the police station to be questioned further. As Frey and Ramos left the modular home park, Frey noticed a white Toyota Camry with CarMax paper plates crashed into a cyclone fence. Frey did not see anyone near the car. Ramos identified the Camry as the one he had been in.
After a canine unit and the swat team arrived, Corporal Frey removed some paper concealing the Camry’s identification number and verified that the car had been stolen. He observed that the windshield had a large “spider web” crack, which suggested that an occupant had impacted the windshield. Ione Police Sergeant David Moranz found a backpack in the trunk. The backpack contained a number of items, including a telephone card and a high school equivalency card, both in defendant’s name. He also found videotape that was later determined to contain images of defendant and a woman named Jessica Marcano. A white baseball cap was found in the rear seat area of the car. At trial, Deputy Book identified the car as the one he had pursued.
As Sergeant Moranz and Corporal Frey were taking Ramos home, they noticed a taxi less than a quarter-mile from the crash site. Moranz stopped the taxi and ordered its two passengers, defendant and Marcano, out of the cab. Defendant and Marcano matched Ramos’s description of his kidnappers, and both had wet pants and wet socks. Defendant had an injury to the right side of his forehead. Marcano had no visible injuries.
Corporal Frey spoke separately with defendant and Marcano. During her interview, Marcano claimed the car had been driven by a man she had met at a bar. She maintained that she had been the front seat passenger and defendant had been in the back.
During a recorded interview, defendant told an officer that he had been in the car that crashed. He identified the car’s driver as “Mike,” whom he had met earlier that evening. Mike was wearing a red hat and some kind of sweatshirt. Defendant first said he had sat in front, but then he said he was not sure. When asked if he had been injured in the accident, he said his head was a “little shooken.” He said that Jessica Marcano had been in the car, but he was unsure of the total number of occupants. He did not see any lights or hear sirens behind him prior to the crash. After the crash, Mike took off running. Defendant got “spooked” and walked away from the crash scene. He did not know anything about any gun or any gunshots.
The officers determined that Ramos was not a kidnapping victim and instead was a friend of defendant and Marcano. All three were arrested. Sergeant Moranz took defendant to a hospital. Once there, Moranz searched defendant and found several receipts in his pants pocket. One was a receipt from a large retailer for a purchase, several hours earlier, of .38-caliber ammunition. Defendant claimed that he had never seen the receipts before and surmised that he had “‘just grabbed them’” and put them in his pocket.
The Ione Police Department notified Saied Camkar that his stolen car had been recovered. Camkar later retrieved the car from an Ione storage facility. He did not recognize the CarMax paper license plate attached to the car.
The next morning a teenage girl found a .38-caliber handgun in a driveway in the proximity of the location in which the high-speed chase had begun. The gun contained five expended shell casings.
Jessica Marcano testified that she and defendant previously had a dating relationship. She knew Ramos from high school. She testified that she, defendant, Michael Lorenzo and Ramos were in the Toyota Camry on the night of the incident but she did not know the car was stolen. She thought it was Lorenzo’s car.
Marcano testified that Ramos was the driver, defendant was the front seat passenger, and she and Lorenzo were in the back. She admitted having falsely identified Lorenzo as the driver at the time of the incident.
After identifying Ramos as the driver, Marcano testified that Lorenzo “stopped” the car to urinate and then started shooting a handgun into the air. During the police pursuit, Lorenzo tossed something out the window and Marcano figured it was the gun. After the car crashed, they all fled.
An Amador County District Attorney investigator testified that he had spoken with Marcano prior to trial. Marcano told him that, at the time of the police pursuit, Lorenzo was driving, Ramos was in the front passenger seat, and she and defendant were in the back seat. Marcano told the investigator that she had seen a person toss a handgun out the car window.
The parties stipulated that, as to count III, “defendant’s driving privileges were suspended and revoked on the date of January 23, 2005,” and defendant “was aware” of that fact.
Defense
Defendant’s brother testified that he had a 2004 Nissan Sentra that he loaned to defendant once in December 2004 and twice in January 2005. The brother put CarMax paper license plates on the car because he had not yet received the plates issued for the car. Amparo Medina testified that she and defendant borrowed the brother’s Sentra and drove it to her parents’ house “quite a few” times.
Discussion
I
Defendant contends the trial court erred by denying his motion to exclude evidence of the “recovery of a handgun in the Galt area” on grounds it was irrelevant, or its prejudicial effect substantially outweighed any relevance. He claims the error requires reversal of all three counts. We are not persuaded.
In the written motion, defendant argued that the recovered gun was not relevant to the crimes of unlawful driving of a vehicle and receiving a stolen car, which “are crimes of possession and knowledge.” Defendant further argued that introduction of evidence of the found gun would “necessitate undue consumption of time, create substantial danger of undue prejudice, confuse the issues, or [] mislead the jury.”
The prosecutor countered that the recovered gun was probative as to why the motorist had fled the scene in the high-speed chase. The prosecutor added that several witnesses, including the people who had been in the car and the young student who had found it, could testify concerning it. The trial court twice ruled that the evidence would be admitted.
“‘“Only relevant evidence is admissible [citations], and all relevant evidence is admissible unless excluded under the federal or California Constitution or by statute. [Citations.] Relevant evidence is defined in Evidence Code section 210 as evidence ‘having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.’ The test of relevance is whether the evidence tends ‘“logically, naturally, and by reasonable inference” to establish material facts such as identity, intent, or motive. [Citations.]’ [Citation.] The trial court has broad discretion in determining the relevance of evidence [citations] but lacks discretion to admit irrelevant evidence. [Citations.]” [Citation.]’ [Citation.]” (People v. Carter (2005) 36 Cal.4th 1114, 1166-1167 (Carter).)
In this case, identity of defendant as the motorist was material to count III (driving while privilege is suspended; Veh. Code, § 14601.1, subd. (a)), as to which there was no suggestion that liability could be vicarious.
As noted, the prosecutor argued that the recovered gun was probative as to why the motorist had fled the scene in the high-speed chase. The jury would not be compelled to speculate that the motorist had fled for some unexplained reason, while a passenger had discarded the gun for a reason that was equally unexplained. Rather, the jury could deduce that the motorist had fled in order to distance himself or herself from the gun. The prosecutor proffered independent evidence that only defendant, and not any of his companions, had a very recent receipt for the type of ammunition used by the gun. Coupled with that evidence, the evidence of the recovered gun had some “tendency in reason” to identify defendant as the motorist. (Evid. Code, § 210; Carter, supra, 36 Cal.4th at pp. 1166-1167.)
Defendant has not addressed the theory of relevance argued by the prosecutor. Any challenge to that theory is forfeited. (See People v. Harper (2000) 82 Cal.App.4th 1413, 1419, fn. 4.)
The Attorney General allows that “possession of a gun standing alone does not tend to prove whether [defendant] drove the stolen vehicle.” However, when the found gun evidence is combined with the receipt for the ammunition, an inference of driving may be drawn.
“Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. [Citation.] Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion ‘must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]’ [Citation.]” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125 (Rodrigues).)
Defendant has not attempted to show that the trial court balanced relevance and prejudicial effect in an arbitrary, capricious or patently absurd manner. (Rodrigues, supra, 8 Cal.4th at pp. 1124-1125.) Indeed, he has not even addressed the theory of relevance argued by the prosecutor. (See fn. 3, ante.) His argument that the evidence was more prejudicial than probative presupposes that the probative value was nil. That presupposition fails for the reasons we have stated. Defendant’s motion to exclude the handgun evidence was properly denied.
II
Defendant contends that the trial court’s failure to give the jury a unanimity instruction (CALCRIM No. 3500) on its own motion requires reversal of counts I and III, which both require the act of driving. He claims one or more jurors could have convicted him, not on the basis of the January 24, 2005, car chase, but upon Paul Medina’s observations of him driving the same stolen car on four or five prior occasions. We find no prejudicial error.
The jury must agree unanimously that defendant is guilty of a specific crime. (People v. Russo (2001) 25 Cal.4th 1124, 1132; People v. Diedrich (1982) 31 Cal.3d 263, 281 (Diedrich).) “This requirement of unanimity as to the criminal act ‘is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed.’” (Russo, supra, at p. 1132, quoting People v. Sutherland (1993) 17 Cal.App.4th 602, 612.) “‘The [unanimity] instruction is designed in part to prevent the jury from amalgamating evidence of multiple offenses, no one of which has been proved beyond a reasonable doubt, in order to conclude beyond a reasonable doubt that a defendant must have done something sufficient to convict on one count.’” (Russo, supra, at p. 1132, quoting People v. Deletto (1983) 147 Cal.App.3d 458, 472 (Deletto), italics in Deletto omitted.) The court must instruct the jury on unanimity only when the evidence shows more than one distinct violation of the statute and the prosecution has not elected a specific criminal act or event upon which it will rely to prove the allegation. (People v. Avina (1993) 14 Cal.App.4th 1303, 1309 (Avina).)
The evidence on count III included a stipulation that defendant’s driving privileges had been suspended and revoked on January 23, 2005, the day prior to the car chase. Because Paul Medina could only speculate as to whether he had seen defendant driving the car as recently as January 23, the evidence did not show a “distinct violation[]” of Vehicle Code section 14601.1, subdivision (a), prior to the car chase. (Avina, supra, 14 Cal.App.4th at p. 1309; see People v. Babbitt (1988) 45 Cal.3d 660, 682 [evidence which produces only speculative inferences is irrelevant evidence].) No unanimity instruction was required as to count III.
Paul Medina testified that “the last time” he had seen defendant driving the stolen car was “two weeks prior” to his grandmother’s death on “February 5th, 6th -- something like that.” January 22 is two weeks prior to February 5; January 23 is two weeks prior to February 6.
The evidence on count I was different: Paul Medina clearly recalled defendant driving the stolen car on four occasions prior to the chase, and there was evidence of defendant driving the car during the chase itself. Because the prosecutor did not elect to rely on a single incident, “with as much clarity and directness as would a judge in giving [an] instruction” (People v. Melhado (1998) 60 Cal.App.4th 1529, 1539), the trial court should have given a unanimity instruction. (Avina, supra, 14 Cal.App.4th at p. 1309.)
In Diedrich, the omission of a unanimity instruction was held to be prejudicial because “[t]his is not a case where the jury’s verdict implies that it did not believe the only defense offered. Diedrich’s defenses differed: As far as the Jolly Fox offer is concerned, it consisted of a simple denial. The Remington transactions were ‘explained.’ Having in mind that the proof of the Jolly Fox offer depended, essentially, on the testimony of a single immunized witness and that the proof of bribery via the Remington transaction was somewhat circumstantial, we feel bound to conclude that the error was prejudicial.” (Diedrich, supra, 31 Cal.3d at p. 283.)
Defendant notes that, as in Diedrich, his defenses differed: as to the earlier incidents, his brother and Amparo Medina both suggested that he had been driving a Nissan Sentra, not the stolen Toyota Camry; as to the high speed chase, defendant argued he had been merely a passenger and not the driver.
However, unlike Diedrich, the jury’s verdict on count III “implies that it did not believe” the only defense offered to the count I act of driving during the high speed chase. (Diedrich, supra, 31 Cal.3d at p. 283.) Because count III was not argued on the basis of vicarious (passenger) liability, and because Paul Medina could only speculate as to whether he had observed defendant driving after his privilege was revoked, the guilty verdict on count III implies a unanimous jury finding that defendant drove, and was not a passenger, during the chase. No juror who had found defendant to be the driver during the chase with respect to count III would have found him to be a mere passenger with respect to count I. Omission of a unanimity instruction was harmless beyond a reasonable doubt. (Deletto, supra, 147 Cal.App.3d at pp. 470-474.)
III
The trial court imposed the upper term of imprisonment on count I based upon numerous factors including its finding that “defendant’s prior convictions as an adult are numerous.” In his opening brief, defendant contended the sentence violated Cunningham, supra, 549 U.S. 270, because it was based on facts that were neither found true by the jury nor admitted by him. The Attorney General responded that the upper term sentence is proper under People v. Black (2007) 41 Cal.4th 799 (Black II), which was decided after defendant filed his opening brief. In his reply brief, defendant asserts that Black II was wrongly decided, but he concedes that Black II supports his sentence and that this court must follow it. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) We accept the concession and find no error.
IV
Pursuant to the probation officer’s recommendation, the trial court awarded defendant 33 days of custody credit and 14 days of conduct credit. However, defendant’s 33 days of custody credit entitle him to 16 days of conduct credit, not 14 days. (§ 4019; People v. Bobb (1989) 207 Cal.App.3d 88, 97, disapproved on other grounds in People v. Barton (1995) 12 Cal.4th 186, 198, fn. 7.) We shall modify the judgment accordingly.
Disposition
The judgment is modified to award defendant 16 days of custody credit. As so modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and to forward a certified copy to the Department of Corrections and Rehabilitation.
We concur: SCOTLAND, P.J. NICHOLSON, J.