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People v. McEntyre

California Court of Appeals, First District, Fifth Division
Apr 28, 2009
No. A122226 (Cal. Ct. App. Apr. 28, 2009)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. THOMAS GORE MCENTYRE, Defendant and Appellant. A122226 California Court of Appeal, First District, Fifth Division April 28, 2009

NOT TO BE PUBLISHED

Alameda County Super. Ct. No. C157879

Jones, P.J.

Appellant Thomas Gore McEntyre challenges his conviction for vehicle theft (Veh. Code, § 10851, subd. (a)) on two grounds. He contends: (1) the trial court erroneously excluded statements made by Francisco Cuevas; and (2) the court erred by failing to clarify the phrase “intend to deprive” in response to the jury’s inquiry. We affirm.

Unless otherwise noted, all further statutory references are to the Vehicle Code. Section 10851, subdivision (a) prohibits the unlawful driving or taking of a motor vehicle. It provides: “Any person who drives or takes a vehicle not his or her own, without the consent of the owner thereof, 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, or any person who is a party or an accessory to or an accomplice in the driving or unauthorized taking or stealing, is guilty of a public offense....”

In his opening brief, appellant claimed the court erroneously failed to instruct the jury on joyriding (Pen. Code, § 499b) because it was a lesser included offense of vehicle theft. Appellant, however, abandoned the argument in his reply brief. As a result, we do not address it.

FACTUAL AND PROCEDURAL BACKGROUND

In March 2008, the Alameda County District Attorney filed an information charging appellant with one count of vehicle theft in violation of section 10851, subdivision (a). The information alleged appellant: “did unlawfully drive and take a certain vehicle... without the consent of and with intent, either permanently or temporarily, to deprive the said owner of title to and possession of said vehicle.” The information also alleged appellant had five prior felony convictions.

Trial

On the evening of December 6, 2007, Angelena Gagliardi drove her father’s Honda Accord to a friend’s house in Livermore. The ignition was intact and the car was in “[v]ery good shape.” At approximately 11:30 p.m., she left her friend’s house and discovered the car had been stolen. Neither Angelena nor her father gave appellant permission to drive the car.

On December 25, 2007, Oakland Police Officer Louis Johnson was driving his patrol car along Foothill Boulevard in Oakland when he noticed a Honda.

He checked the license plate on his computer and discovered it was stolen. Johnson stopped the car and arrested appellant, who was in the driver’s seat. Appellant was the only person in the car. Johnson noticed that the car was “very messy, like... someone had gone through it.” Johnson also noticed that the “vehicle was running in the on-position, but there was no ignition” and that the plastic cover for the steering column “had been busted and... partially removed, and there were [ ] wires and whatnot hanging from it.”

Another police officer searched appellant and found tools to break windows and “pop” locks. The officer also found a set of “shaved” keys. According to Johnson, “[i]t’s typical of a car thief to have keys that are shaved down” because a thief can “jingle them a little bit [and] can get them to turn any ignition to any vehicle,” including a Honda. Finally, the officers found power tools in the trunk of the Honda.

On December 25, 2007, the police returned the Honda to the Gagliardi family. The interior was “disarrayed, trashed, dirty... the steering column was completely torn apart; [and] papers from the glove compartment... were scattered around... the body of the car.” The ignition had been “torn apart” and the car had been started with a screwdriver. In the backseat and trunk were tools, clothing, and an identification badge, none of which belonged to the Gagliardi family.

Defense

Appellant testified that he was standing at the bus stop on December 25, 2007 when he saw his friend, Cuevas. Cuevas was looking at a parked car across the street from his house. Appellant noticed the car had several tickets and a tow notice on its windshield, so he asked Cuevas, “Whose car is that?” Appellant asked Cuevas about the keys to the car and based on Cuevas’s answers, appellant did not expect to be able to start the car with a set of keys. He was told, “‘You don’t need a key.’” At the conclusion of his conversation with Cuevas, appellant got into the car. Based on his conversation with Cuevas, appellant believed the car was not stolen.

The court sustained the prosecutor’s hearsay objections to defense counsel’s questions about Cuevas’s specific statements. See Discussion, infra.

The door was unlocked. When appellant got into the car, he noticed there was no ignition. At that point, he thought “it may be a stolen car.” To determine whether the car was stolen, appellant looked at the “citation on the windshield,” apparently because he thought a citation would not be issued if the car were stolen. When asked whether there was anything on the “tow tag” that caused him to believe that it had been written by a police officer, he responded, “[b]ecause it’s... I mean it was a citation to be towed. I mean who else could have [written] it? And there were two tickets under the wiper blade....”

As he sat down in the driver’s seat, appellant saw a black jacket on the seat. He asked Cuevas “whose it was” and Cuevas responded. Appellant put the jacket in the backseat. Appellant also noticed two tools — one was a bent screwdriver — in the front seat. He picked up the tools because he thought they might “be the items that would start the car.” Appellant tried to start the car with the tools but was unsuccessful. Eventually, he saw the ignition cylinder and a set of keys and thought, “well, maybe these keys will fit the ignition cylinder, and [Cuevas] is not correct” about not needing a key to start the car. The keys fit in the ignition but would not turn the cylinder. Appellant put the keys and the ignition cylinder in his pocket. Then he found a screwdriver on the floorboard and used it to start the car.

Defense counsel did not ask appellant how Cuevas responded, presumably because the court had previously sustained the prosecutor’s hearsay objections to questions eliciting Cuevas’s specific statements.

Cuevas gave appellant a razor blade, which appellant used to scrape the tow sticker off the windshield. The tow sticker fell to the ground and blew away. Appellant checked the license plate to make sure the car’s registration was valid. Then he told Cuevas, “[D]on’t trip. I will have your car back before tonight. I’m going to clean it real good, and all of the valuables that are in it, and anything worth anything, I will put in the trunk.” He drove away. Shortly thereafter, he was stopped by the police.

Appellant testified he had been “given permission to drive [the car] if [he] cleaned it, cleaned it good and moved it, because there was a warning... if not moved within 72 hours, to be towed.” He also testified he did not think the car was stolen. He explained that he “felt [the car] was left to [Cuevas]” based on the presence of the citations on the car and on his conversation with Cuevas. He stated he thought the car had been “left there” and that he had permission to drive it.

On cross-examination, appellant denied knowing the car might have been stolen. He conceded the car did not belong to him and that he did not obtain permission from Angelena Gagliardi or her father to drive it. Initially appellant stated the car was “tagged abandoned” but later he admitted that when a car is “tagged,” it does not necessarily mean it is abandoned — it is “tagged” to give the owner notice that the car is going to be towed. He also testified the car’s registration was valid and that he thought the car belonged to someone. Appellant also admitted “[i]t crossed [his] mind” that the car was stolen because of its condition. He explained, however, that he was “under the impression that... the gentleman that owned the car had went to jail, and that... [Cuevas] was given the car by the person who went to jail.” Appellant denied removing the ignition from the car. Finally, appellant acknowledged that he had two prior convictions.

During closing argument, defense counsel told the jury that appellant “provided you with very direct evidence of his intent. He explained his intent. He described it to you. You heard it. [¶] As he was driving, he did not have the culpable criminal state of mind, ‘I’m driving somebody’s stolen car.’ He thought what he was doing was okay.” Counsel also noted that the car “certainly belonged to someone, and based on Mr. McEntyre’s conversation with [Cuevas], he had a clear sense of who that someone was, of a set of circumstances that had transpired, and he believed [ ] the car had been sitting there; that someone had left it there, had been arrested. [¶] And that, again, we don’t have the details, but what we do know is that he left that conversation [with Cuevas] convinced that he had permission from someone who had essentially been given some custody when the other guy went to jail.”

The jury convicted appellant of vehicle theft. At the sentencing hearing, the court struck one of appellant’s prior convictions, found the four remaining convictions true, and sentenced appellant to three years in state prison.

DISCUSSION

Appellant raises two claims on appeal. First, he contends statements made by Cuevas were “operative facts” — not hearsay — and that the court erroneously excluded them. Second, he claims the court erred by failing to clarify the phrase “intend to deprive” in response to the jury’s inquiry.

The Court Erroneously Excluded Cuevas’s Statements, but the Error Was Harmless

At trial, the court sustained two of the prosecutor’s hearsay objections when appellant attempted to testify regarding what Cuevas told him about the Honda:

“[DEFENDANT]:... And then I said, ‘Whose car is that, [Cuevas]?’

[DEFENSE COUNSEL]: And what did [Cuevas] say?

[DEFENDANT]: He said

[PROSECUTOR]: Objection, hearsay.

THE COURT: Sustained.

[DEFENSE COUNSEL]: May I

THE COURT: Sustained.

[DEFENSE COUNSEL]: Your Honor, it goes to my client’s state of mind and intent, which is an element of the charges here.

THE COURT: Sustained.

[DEFENDANT]: I asked [Cuevas] if he had a razor blade in the house and he said – [PROSECUTOR]: Objection, hearsay.

[DEFENDANT]: My bad. Excuse me.

THE COURT: Sustained.”

The People concede the court erroneously excluded Cuevas’s statements. We agree. Cuevas’s statements were not hearsay because they were not offered for the truth — that is, that the car was not stolen. Instead, they were offered to show their effect on appellant and also to show his state of mind when he drove the car. (See People v. Fields (1998) 61 Cal.App.4th 1063, 1068-1069; People v. Jablonski (2006) 37 Cal.4th 774, 820-821.)

We are not persuaded, however, by appellant’s contention that the court’s error deprived him of his constitutional right to present a defense. The California Supreme Court has held that “[t]he complete exclusion of defense evidence [ ] ‘“theoretically could rise to [the] level”’[citation] of a due process violation. But short of a total preclusion of defendant’s ability to present a mitigating case to the trier of fact, no due process violation occurs; even ‘“[i]f the trial court misstepped, “[its] ruling was an error of law merely; there was no refusal to allow [defendant] to present a defense, but only a rejection of some evidence concerning the defense.””’ [Citation.]” (People v. Thornton (2007) 41 Cal.4th 391, 452-453.)

To be sure, the court did reject “some evidence concerning” appellant’s defense. But the court did not completely exclude all defense evidence. It permitted appellant to testify, repeatedly, that he did not believe the car was stolen. It also allowed appellant to testify that he had a conversation with Cuevas which led him to believe the car “was left to Cuevas” by a man who had gone to jail. The court permitted appellant to describe the car as belonging to Cuevas and to state that Cuevas gave him permission to drive the car. And during closing argument, defense counsel contended appellant did not have the requisite intent because he did not think he was driving a stolen car. Precluding appellant from testifying about specific statements Cuevas made “fell well short of constituting a due process violation.” (Thornton, supra, 41 Cal.4th at p. 453; see also People v. Fudge (1994) 7 Cal.4th 1075, 1102 [“by sustaining the [prosecutor’s] hearsay objections... the trial court’s alleged error... did not rise to the level of an unconstitutional deprivation of the right to present a defense”].)

We agree with the People that any error in excluding Cuevas’s statements was harmless. (Fudge, supra, 7 Cal.4th at p. 1103.) To establish a violation of section 10851, subdivision (a), the prosecution must prove, among other things, that “the defendant had the specific intent to permanently or temporarily deprive the owner of title or possession. [Citation.] Knowledge that the vehicle was stolen, while not an element of the offense, may constitute evidence of the defendant’s intent to deprive the owner of title and possession. [Citation.]” (People v. O’Dell (2007) 153 Cal.App.4th 1569, 1574, fn. omitted.) In addition, “[t]he specific intent to deprive the owner of possession of his vehicle ‘“may be inferred from all the facts and circumstances of the particular case.”’” (Id., at p. 1577, quoting People v. Green (1995) 34 Cal.App.4th 165, 181.)

Here, there was ample evidence from which an inference may be drawn that appellant intended to deprive the owner of title and possession. Appellant testified the car did not belong to him. He also conceded it “crossed [his] mind” that the car was stolen and gave an implausible story about how the car belonged to a man “who went to jail” and who gave the car to Cuevas, who then gave appellant permission to drive it. When appellant was arrested in the stolen car, he had shaved keys in his pocket, which are common among car thieves because they can “jingle them a little bit [and] can get them to turn any ignition to any vehicle,” including a Honda. Appellant also had the car’s ignition and tools — including a bent screwdriver — to break windows and “pop” locks.

In light of this evidence, we cannot conclude it is reasonably probable the jury would have reached a more favorable verdict in the absence of the court’s error. (People v. Bradford (1997) 15 Cal.4th 1229, 1325 [trial court’s exclusion of third party culpability evidence was harmless “[i]n light of the extremely strong evidence against defendant”]; Jablonski, supra, 37 Cal.4th at p. 821 [erroneous admission of statement “for its effect on defendant” was harmless “in light of the overwhelming evidence of defendant’s guilt”].)

Appellant’s Contention Regarding Penal Code Section 1138 Fails

On the first day of deliberations, the jury requested read back on the following: (1) “[d]efendant’s testimony (including crossexam) where he was asked about his thoughts whether he thought the car was stolen. Did he say, ‘probably stolen?’”; (2) [w]hat was defendant’s statement about the type & number of keys in defendant’s pockets;” and (3) [w]hat was his statement about [the] position of the car relative to [Cuevas’s] house, and which house is [Cuevas’s].” The court reporter read the testimony requested.

About an hour later, the jury sent a note to the court which stated, “What does it mean to intend to deprive an owner of the use of a car? Can you give us any more instructions on this part of the case[?]” The court informed counsel that it would read three instructions — CALCRIM Nos. 251 and 1820 and CALJIC No. 14.36 — to the jury. Defense counsel stated that he had “[n]o objection” to the court’s plan.

The court began by reading CALCRIM No. 251: “The crimes and/or other allegations charged in this case require proof of the union, or joint operation, of act and wrongful intent. [¶] For you to find a person guilty of the crime of unlawful driving or taking of a vehicle charged in Count 1, that person must not only intentionally commit the prohibited act or intentionally fail to do the required act, but must do so with a specific intent and/or mental state. The act and the specific intent and/or mental state required are explained in the instruction for that crime.”

Then the court read the jury CALCRIM No. 1820: “The defendant is charged with unlawfully taking or driving a vehicle in violation of Vehicle Code section 10851. [¶] To prove the defendant guilty of this crime, the People must prove that: [¶] One, the defendant took and drove someone else’s vehicle without the owner’s consent; and [¶] Two, that when the defendant did so, he intended to deprive the owner of possession or ownership of the vehicle for any period of time. [¶] Even if you conclude that the owner had allowed the defendant or someone else to take or drive the vehicle before, you may not conclude that the owner consented to the driving or taking on December 24, 2007, based on that previous consent alone. [¶] The People have the burden of proving this allegation beyond a reasonable doubt. If the People have not met this burden, you must find that the allegation has not been proved.”

Finally, the court delivered CALJIC No. 14.36: “The defendant is charged with violating Vehicle Code section 10851, a crime. [¶] Every person who drives or takes a vehicle not his own, without the consent of the owner, and with the specific intent to deprive the owner either permanently or temporarily of his or her title to or possession of the vehicle, is guilty of a violation of Vehicle Code section 10851, a crime.

“In order to prove [this] crime, each of the following elements must be proved: [¶] A person took or drove a vehicle belonging to another person; [¶] The other person had not consented to the taking or driving of his or her vehicle; and [¶] When the person took or drove the vehicle, he had the specific intent to deprive the owner either permanently or temporarily of his or her title to or possession of the vehicle.” The court gave a copy of this instruction to the jury. Then the court concluded, “That is the further instruction. I hope this is of assistance.”

Approximately 20 minutes later, the jury sent a note to the court. The note stated: “We appear to have a hung jury. The vote is 11 [g]uilty and 1 for acquittal. The issue has to do with interpretation of ‘intent to deprive.’” The next day, the jury sent another note to the court asking: (1) “is ‘intent’ open to our interpretation of the word or is there some definition or guidance you can provide[?]” and (2) “does ‘... specific intent to deprive the owner...’ mean that a person committing the act have conscious thoughts and a purpose to deprive the owner of their property?”

The court held a hearing outside the presence of the jury where it informed counsel that its “inclination is to give a very neutral response[,] stated, as follows: To constitute a violation of Vehicle Code section 10851, there must exist a specific intent to permanently or temporarily deprive the owner of title to or possession of the vehicle. For unlawful driving or taking the vehicle without the owner’s consent, the specific intent to deprive the owner of possession of his vehicle may be inferred from all of the facts and circumstances of the particular case.” Defense counsel agreed to the court’s proposed response.

In the presence of the jury, the court stated the following:

“We have received your questions. Thank you for alerting me to some items.... The next question is: Is intent open to our interpretation of the word or is there some definition or guidance you can provide? [¶] And, two, does ‘specific intent to deprive the owner’ mean the person committing the act have conscious thoughts and a purpose to deprive the owner of their property? [¶] I am going to read to you some additional information that has been agreed upon by the court and counsel in answering these questions. So, listen carefully.

“For unlawful driving or taking of a vehicle without the owner’s consent, the specific intent to deprive the owner of possession of his or her vehicle may be inferred from all the facts and circumstances of the particular case. [¶] The People must not only prove that the defendant did the acts, but also that he acted with a particular intent or mental state. The instruction for this crime explains the intent or mental state required as previously read.

“An intent or mental state may be proved by circumstantial evidence. Before you may rely on circumstantial evidence to conclude a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt.

“Also, before you rely on circumstantial evidence to conclude that the defendant had the required mental state or intent, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant had the required intent or mental state.

“If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions supports a finding that the defendant did have the required intent or mental state and another reasonable conclusion supports the finding that the defendant did not, you must conclude that the required intent or mental state was not proved by the circumstantial evidence. [¶] However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable.” The court concluded: “All right. That is the answer to your questions. And at this time you may continue your deliberations.”

Appellant contends the “court erred by failing to clarify the term ‘intend to deprive’ in response to the jury’s specific request.” The parties agree that the jury’s request for clarification on the phrase “intend to deprive” triggered Penal Code section 1138, which provides: “After the jury have retired for deliberation,... if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given....”

The People, however, contend appellant waived this issue by failing to object in the trial court. We agree. “When a trial court decides to respond to a jury’s note, counsel’s silence waives any objection under [Penal Code] section 1138. [Citation.] ‘The failure of defendant’s counsel to object or move for a mistrial upon the court frankly informing him of the court’s action might also be construed to be a tacit approval. Approval of the court’s action, even though it might have been a technical violation of section 1138 of the Penal Code, cures any possible error.’ [Citation.]” (People v. Roldan (2005) 35 Cal.4th 646, 729, overruled on other grounds as stated in People v. Doolin (2009) 45 Cal.4th 290, 421 & fn. 22; see also People v. Ross (2007) 155 Cal.App.4th 1033, 1048 [“[a] defendant may forfeit an objection to the court’s response to a jury inquiry through counsel’s consent, or invitation or tacit approval of, that response” and collecting cases].)

Contrary to appellant’s claims, there is no split of authority regarding whether a defendant’s failure to object to a court’s alleged violation of Penal Code section 1138 waives the issue on appeal. As noted above, the California Supreme Court has held, without equivocation, that counsel’s silence waives any objection under section 1138. (See Roldan, supra, 35 Cal.4that p. 705.) The Courts of Appeal have reached the same result. (See, e.g., People v. Bohana (2000) 84 Cal.App.4th 360, 373; People v. Thoi (1989) 213 Cal.App.3d 689, 698.)

Even if we overlook counsel’s failure to object, appellant’s claims have no merit. (Roldan, supra, 35 Cal.4th at p. 730.) For example, appellant faults the court for not engaging in a “dialogue with the jury in order to determine the precise nature of the confusion.” Penal Code section 1138 does not require the court to engage in a “dialogue” with the jury. And no dialogue was needed to determine the “precise nature” of the jury’s confusion because the jury sent notes to the court which clearly articulated its questions regarding intent to deprive.

Appellant also contends the court abused its discretion by failing to “‘at least consider how it [could] best aid the jury[.]’” This contention fails for the simple reason that the court did consider how it could best aid the jury. Mindful that “[w]hen a question shows the jury has focused on a particular issue, or is leaning in a certain direction, the court must not appear to be an advocate, either endorsing or redirecting the jury’s inclination,” (People v. Moore (1996) 44 Cal.App.4th 1323, 1331) the court stated that it intended to give a “neutral” response to the jury’s questions. The court also asked the attorneys for their input on its proposed response to the jury’s questions. The court reread two jury instructions — CALCRIM Nos. 251 and 1820 — and gave the jury an additional instruction, CALJIC No. 14.36. CALCRIM No. 251 advised the jury that it could not find appellant guilty of violating section 10851 unless it concluded he “intentionally commit[ted] the prohibited act... with a specific intent and/or mental state.” CALCRIM No. 1820 informed the jury that the People were required to prove, among other things, that when appellant took the vehicle, “he intended to deprive the owner of possession or ownership of [it] for any period of time.” Finally, the court delivered CALJIC No. 14.36 which told the jury it was required to determine whether appellant drove or took the vehicle with “a specific intent to permanently or temporarily deprive the owner of title to or possession of the vehicle.” The court also instructed the jury that it could infer intent to deprive from all of the facts and circumstances in the case.

The court’s decision to reread CALCRIM No. 251 and CALCRIM No. 1820, and to give the jury CALJIC No. 14.36 kept the court out of the jury’s deliberating role and provided the jury with the complete information it needed to reach a verdict. In light of our conclusion, we need not reach appellant’s alternative claim that defense counsel rendered ineffective assistance by failing to object to the court’s responses to the jury’s questions.

DISPOSITION

The judgment is affirmed.

We concur: Needham, J., Bruiniers, J.

Judge of the Superior Court of Contra Costa County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.


Summaries of

People v. McEntyre

California Court of Appeals, First District, Fifth Division
Apr 28, 2009
No. A122226 (Cal. Ct. App. Apr. 28, 2009)
Case details for

People v. McEntyre

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. THOMAS GORE MCENTYRE, Defendant…

Court:California Court of Appeals, First District, Fifth Division

Date published: Apr 28, 2009

Citations

No. A122226 (Cal. Ct. App. Apr. 28, 2009)