Opinion
B333838
12-18-2024
THE PEOPLE, Plaintiff and Respondent, v. ANGEL FRANCISCO MEDRANO, Defendant and Appellant.
Corey J. Robins, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Steven D. Matthews and Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. MA084935 Kathleen Blanchard, Judge. Affirmed as modified and remanded for resentencing.
Corey J. Robins, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Steven D. Matthews and Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.
FEUER, J.
Angel Francisco Medrano appeals from a judgment of conviction after a jury found him guilty of felony taking or driving of a vehicle without the owner's consent in violation of Vehicle Code section 10851, subdivision (a) (section 10851(a)). Medrano contends the trial court committed instructional error because its jury instruction on unlawful posttheft driving, although based on CALCRIM No. 1820 for unlawful taking or driving a vehicle, failed to specify that there must be a substantial break between the theft of the vehicle (the taking) and the driving of the vehicle for there to be unlawful posttheft driving. Further, the error was prejudicial. We agree, and therefore, although the jury stated in its verdict that it based its guilty finding on the unlawful "driving" theory of liability, we treat the conviction as one for the unlawful taking of a vehicle by driving and not unlawful posttheft driving.
Medrano also contends there was not substantial evidence that he drove the vehicle and there was prosecutorial misconduct. Neither contention has merit. However, as the People concede, there was no evidence at trial of the vehicle's value. Accordingly, we modify the judgment of conviction to reduce Medrano's conviction to a misdemeanor because the unlawful taking of a vehicle is a felony only if the value of the vehicle is more than $950.
Finally, Medrano contends, the People concede, and we agree Medrano is entitled to additional presentence custody credits. We affirm the judgment of conviction as modified, vacate the sentence, and remand for the trial court to resentence Medrano for a misdemeanor conviction of section 10851(a) and to award Medrano the correct presentence custody credits.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Evidence at Trial
On March 17, 2023 John Beaghler and his wife drove from their home in Bishop to a motel in Lancaster in the Antelope Valley, which was a three-and-a-half hour drive. Beaghler drove his son's 1995 pickup truck, which had between 290,000 and 295,000 miles on its odometer. When Beaghler arrived at the motel at approximately 7:00 p.m., he parked the truck in the motel's parking lot. He could not see the parking lot from his motel room, and there were no surveillance cameras in the parking lot.
At about 7:30 the next morning, Beaghler went to the motel parking lot and discovered his truck was missing. He had the truck keys in his possession. A motel employee called the Los Angeles County Sheriff's Department, and Beaghler reported his missing truck.
At approximately 10:00 p.m. the following night (March 19), Los Angeles County Sheriff's Deputy Miguel Gonzalez and his partner, Deputy Diana Leiva, were patrolling the area of Avenue H-8 and Elm Street in Lancaster in their patrol car. The deputies ran license plate numbers on vehicles they passed using a computer in their patrol car that connected to databases from the Department of Motor Vehicles and the Sheriff's Department. When they ran the license plate number of Beaghler's pickup truck, the computer indicated the vehicle had been reported stolen. Deputies Gonzalez and Leiva backed up their vehicle, and as they were backing up, Deputy Gonzalez saw Medrano "jump out of the driver's seat." At trial, Deputy Gonzalez testified the truck was parked on the side of the street and he did not see Medrano drive the truck. When Deputy Gonzalez got out of his patrol car and asked Medrano to stop, Medrano ran eastbound on Avenue H-8. Deputy Gonzalez eventually arrested Medrano.
The deputies interviewed Medrano in the back of the patrol car after Deputy Leiva advised Medrano of his Miranda rights.Medrano stated he obtained the vehicle from his "boss," whose name was "Beaghler." Medrano told the deputies, "That's my boss's truck right there. I work for him." Medrano said he did "side shit" like "landscaping" for Beaghler, but he did not know where Beaghler lived or his telephone number. Medrano stated he met Beaghler for work "[r]ight where you got the truck." When Deputy Leiva asked how long Medrano had been working for Beaghler, Medrano answered, "Just, like, the other day." Deputy Gonzalez asked him, "What's the other day?" Medrano replied, "A little longer than the other day." Medrano added, "This guy, this guy's my boss and he let me use his truck. I don't know what the hell he reported [it] stolen for." Medrano reiterated, "That's what I'm saying, that's . . . dumb as fuck, that he would report [it] stolen. I'm in jail right now because of this man. And now I have to wait for him. For what? To clear me?" Deputy Gonzalez later asked, "So, you just randomly met this dude, in the street?" Medrano answered, "Clearly, clearly."
Miranda v. Arizona (1966) 384 U.S. 436, 478-479.
Deputy Gonzalez's body camera recorded the interview, and the prosecutor played the recording for the jury.
Beaghler testified at trial that he and his son lived in Bishop in March 2023. He did not own any property in Antelope Valley, and he was not a business owner. Beaghler denied knowing Medrano, and he did not give anyone permission to drive the truck while he was in Antelope Valley. Further, in March 2023 Beaghler did not hire anyone for landscaping services in Antelope Valley.
B. The Verdict and Sentencing
The jury found Medrano guilty of the felony taking or driving of a vehicle without the owner's consent. (§ 10851(a).) The verdict form required the jury to select either theory A or B as the basis for its verdict: "THEORY A: [¶] 1. The defendant took someone else's vehicle without the owner's consent. [¶] AND [¶] 2. When the defendant did so, he intended to deprive the owner of possession or ownership of the vehicle for any period of time. [¶] AND [¶] 3. The vehicle was worth more than $950. [¶] THEORY B: 1. The defendant drove someone else's vehicle without the owner's consent. [¶] AND [¶] 2. When the defendant drove the vehicle, he intended to deprive the owner of possession or ownership of the vehicle for any period of time." (Boldface omitted.) The jury indicated on the verdict form it based its guilty verdict on theory B.
In a bifurcated proceeding, Medrano admitted he suffered two prior convictions of section 10851(a) in 2021. (Pen. Code, § 666.5.) Medrano also admitted he had a prior conviction of a serious or violent felony (a 2010 burglary conviction under Penal Code section 459), which constituted a strike within the meaning of the three strikes law (Pen. Code, §§ 667, subd. (b)-(j), 1170.12). In addition, Medrano admitted two aggravating factors: (1) that he had served a prior prison term under Penal Code section 1170, subdivision (h); and (2) that he previously performed unsatisfactorily on probation or parole. (Cal. Rules of Court, rule 4.421(b)(3), (5).)
On August 31, 2023 the trial court denied Medrano's Romero motion to dismiss the allegation he had a prior strike conviction. The court sentenced Medrano to an aggregate term of four years in state prison comprised of the lower term of two years, doubled under the three strikes law. Medrano timely appealed.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504.
Section 10851, subdivision (a), provides for a sentence of up to a year in county jail, or a $5,000 fine, or both a fine and imprisonment. However, under Penal Code section 666.5, subdivision (a), a person who was previously convicted of a felony violation of Vehicle Code section 10851 and "is subsequently convicted" of the same or similar offense "shall be punished by imprisonment pursuant to subdivision (h) of [Penal Code] Section 1170 for two, three, or four years, or a fine of ten thousand dollars ($10,000), or both the fine and the imprisonment."
DISCUSSION
A. Substantial Evidence Supports a Misdemeanor Conviction of Section 10851(a)
1. Standard of review
"When a defendant challenges the sufficiency of the evidence for a jury finding, we review the entire record in the light most favorable to the judgment of the trial court. We evaluate whether substantial evidence, defined as reasonable and credible evidence of solid value, has been disclosed, permitting the trier of fact to find guilt beyond a reasonable doubt." (People v. Vargas (2020) 9 Cal.5th 793, 820; accord, People v. Penunuri (2018) 5 Cal.5th 126, 142 ["'To assess the evidence's sufficiency, we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime or special circumstances beyond a reasonable doubt.'"].) "'"Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence."'" (Penunuri, at p. 142; accord, People v. Mendez (2019) 7 Cal.5th 680, 703.)
"'"The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence."'" (People v. Vargas, supra, 9 Cal.5th at p. 820; accord, People v. Rivera (2019) 7 Cal.5th 306, 324.) "'We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding.'" (People v. Westerfield (2019) 6 Cal.5th 632, 713; accord, People v. Penunuri, supra, 5 Cal.5th at p. 142.) 2. Unlawful taking and posttheft driving under section 10851(a)
Section 10851(a) "punishes 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 ....'" (People v. Bullard (2020) 9 Cal.5th 94, 102 (Bullard); accord, People v. Page (2017) 3 Cal.5th 1175, 1182 (Page).) "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 [Penal Code] 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 ...." (People v. Garza (2005) 35 Cal.4th 866, 871; accord, People v. Lara (2019) 6 Cal.5th 1128, 1136 (Lara).)
Although a defendant may violate section 10851(a) by having the intent to permanently or temporarily deprive the owner of title or possession of a vehicle, the Supreme Court in People v. Garza, supra, 35 Cal.4th 866 focused on the theft form of the offense that requires intent to permanently deprive the owner of possession of the vehicle, in which case the defendant could not also be convicted of receiving the same vehicle as stolen property. (Id. at p. 876.)
"Posttheft driving in violation of Vehicle Code section 10851 consists of driving a vehicle without the owner's consent after the vehicle has been stolen, with the intent to temporarily or permanently deprive the owner of title or possession. Where the evidence shows a 'substantial break' between the taking and the driving, posttheft driving may give rise to a conviction under Vehicle Code section 10851 distinct from any liability for vehicle theft." (Page, supra, 3 Cal.5th at p. 1188; accord, Lara, supra, 6 Cal.5th at p. 1136.) "The theft of the vehicle may be considered complete when the driving is not 'part of the original taking' [citation]; when the driving is 'an act distinct from the taking' [citation]; when the driving is 'for purposes unconnected with the original taking' [citation]; 'when the driving is no longer part of a "'continuous journey away from the locus of the theft'"' [citation]; or when the driving is not part of the escape from the scene of the theft." (People v. Calistro (2017) 12 Cal.App.5th 387, 395.) "While a theft-based violation of Vehicle Code section 10851 may be punished as a felony only if the vehicle is shown to have been worth over $950, a violation committed by posttheft driving may be charged and sentenced as a felony regardless of value." (Lara, at p. 1136, fn. omitted; accord, Bullard, supra, 9 Cal.5th at p. 110 ["Except where a conviction is based on posttheft driving (i.e., driving separated from the vehicle's taking by a substantial break), a violation of section 10851 must be punished as a misdemeanor theft offense if the vehicle is worth $950 or less."].)
"By its terms, section 10851 is a 'wobbler' offense that may be punished as either a felony or a misdemeanor." (People v. Gutierrez (2018) 20 Cal.App.5th 847, 853; accord, People v. Jackson (2018) 26 Cal.App.5th 371, 377.)
3. The trial court committed prejudicial error by instructing the jury with an incomplete instruction on posttheft driving
Medrano contends the trial court committed prejudicial error by instructing the jury with an incomplete instruction on posttheft driving, even though the court instructed with the recommended instruction, CALCRIM No. 1820. Medrano's claim has merit.
"'A claim of instructional error is reviewed de novo. [Citation.] An appellate court reviews the wording of a jury instruction de novo and assesses whether the instruction accurately states the law. [Citation.] In reviewing a claim of instructional error, the court must consider whether there is a reasonable likelihood that the trial court's instructions caused the jury to misapply the law in violation of the Constitution. [Citations.] The challenged instruction is viewed "in the context of the instructions as a whole and the trial record to determine whether there is a reasonable likelihood the jury applied the instruction in an impermissible manner."'" (People v. Lewis (2023) 14 Cal.5th 876, 900; accord, People v. Mitchell (2019) 7 Cal.5th 561, 579.)
The trial court instructed the jury with a modified version of CALCRIM No. 1820: "The defendant is charged in count 1 with the unlawful taking or driving [of] a vehicle in violation of Vehicle Code section 10851. To prove that the defendant is guilty of this crime, the People must prove that either, number 1, the defendant took someone else's vehicle without the owner's consent; and number 2, when the defendant did so, he intended to deprive the owner of possession of ownership of the vehicle for any period of time; and, number 3, the vehicle was more than $950; [¶] or, number 1, that the defendant drove someone else's vehicle without the owner's consent; and, number 2, when the defendant drove the vehicle, he intended to deprive the owner of possession or ownership of the vehicle for any period of time. [¶] In order to find the defendant guilty of this charge, the jury must unanimously agree on the theory under which he is guilty. [¶] A taking requires that the vehicle be moved any distance no matter how small." As discussed, the verdict form identified these two theories of liability as theory A and theory B. The jury found Medrano guilty of section 10851(a) based on theory B.
Medrano did not object to the jury instruction at trial. "But failure to object to instructional error will not result in forfeiture if the substantial rights of the defendant are affected." (People v. Mitchell, supra, 7 Cal.5th at p. 579; accord, People v. Thomas (2023) 14 Cal.5th 327, 382; see Pen. Code, § 1259 ["The appellate court may also review any instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby."].) We therefore review for instructional error because any error would affect Medrano's substantial rights.
Although CALCRIM No. 1820, on which the trial court's jury instruction was fashioned, described theory B as posttheft driving, the instruction failed to specify that there must be a substantial break between the theft (i.e., the taking), and the driving of the vehicle, as the Supreme Court made clear in Lara. There, as here, the trial court instructed the jury "that, in order to convict, the jury had to find that defendant drove someone else's vehicle without the owner's consent and with the intent to deprive the owner of possession or ownership for a period of time." (Lara, supra, 6 Cal.5th at p. 1132.) The Supreme Court held, "[T]he unlawful driving instruction was incomplete: While the instruction specified driving as the alleged illegal act, it did not refer expressly to posttheft driving. Taking the instruction on Vehicle Code section 10851 in isolation, the jury thus could theoretically have understood guilt to be proved if defendant stole the vehicle by driving it away from where the owner had parked it." (Id. at p. 1138.)
We encourage the Judicial Council to modify CALCRIM No. 1820 to clarify the requirements for unlawful posttheft driving in violation of section 10851(a) consistent with the holdings in Lara, supra, 6 Cal.5th at page 1136 and Page, supra, 3 Cal.5th at page 1188.
However, the Lara court found the omission in the instruction was harmless beyond a reasonable doubt under Chapman v. California (1967) 386 U.S. 18, 24. (Lara, supra, 6 Cal.5th at p. 1138.) The court explained, "The evidence showed that defendant was apprehended driving the vehicle six or seven days after it was stolen from its owner, a time gap that indisputably qualifies as a '"substantial break"' between the theft and the driving. [Citation.] In the absence of any direct evidence tying defendant to the theft-or indeed, any circumstantial evidence beyond defendant's later possession of the stolen vehicle-there was nothing to show he also drove it while effectuating the theft, and neither party so argued to the jury. Indeed, the prosecutor expressly informed the jury it lacked sufficient evidence to convict defendant of the theft. Given these circumstances, we conclude that the trial court's failure to specify that unlawful driving must occur after the theft of the car, and not during, did not contribute to the jury's verdict. It is clear beyond a reasonable doubt that a rational jury would have rendered the same verdict had it received a complete instruction." (Ibid.)
Unlike Lara, in this case there was insufficient evidence of a "substantial break" between the theft and the driving to support a finding that, had the jury been properly instructed, it would have found beyond a reasonable doubt that Medrano was guilty of posttheft driving. As the People concede, there was not substantial evidence that Medrano drove Beahgler's truck after the theft was completed. Deputy Gonzalez testified he saw Medrano in the driver's seat a day after Beaghler reported his truck missing. The truck was parked on the side of the street; Deputy Gonzalez did not see Medrano drive it. Further, the prosecutor focused on the unlawful taking of the truck in his closing argument, stating, "For this car to magically go from the motel to this intersection, this area, it had to be driven by someone. The only other person that there's evidence of driving that car is the defendant." Therefore, the jury's finding of driving could have been based on Medrano's taking the truck from the parking lot and driving it to the recovery location on the night of March 17 or early morning of March 18, without any driving on the day Medrano was seen in the driver's seat (March 19). On this record, the trial court's failure to give a complete instruction on posttheft driving was not harmless beyond a reasonable doubt under Chapman. Accordingly, Medrano's conviction under section 10851 could not be based on a theory of posttheft driving.
4. Substantial evidence supports a misdemeanor conviction of section 10851(a)
For a felony unlawful taking under section 10851(a), the trial court properly instructed the jury that the People must prove (1) "the defendant took someone else's vehicle without the owner's consent"; (2) "when the defendant did so, he intended to deprive the owner of possession of ownership of the vehicle for any period of time"; and (3) "the vehicle was more than $950."
Medrano contends there is not substantial evidence that he ever drove the truck, relying on People v. Clark (1967) 251 Cal.App.2d 868 (Clark). In Clark, a car was reported missing at about 8:00 at night. (Id. at p. 873.) After midnight, a police officer saw the car on the street and chased after it; the car then collided with another car and stopped; and the defendant and three other juveniles ran out. (Ibid.) After his arrest, defendant told the officer that he was not the driver and he did not know the car had been stolen until the police started chasing it. (Ibid.) Defense witnesses testified that defendant and his friend Michael Davis went to a party, then left with Davis's friend, who offered to drive them home. Davis's friend was driving the group, including the friend's girlfriend, when the police car chased them. (Ibid.) The defendant testified he ran away because he panicked and was afraid of the police. (Id. at p. 874.) The Court of Appeal reversed the conviction for unlawful taking or driving a vehicle, finding there was no evidence that the defendant "was anything other than a passenger," and that even if the defendant's alibi evidence was rejected, there was no evidence he was involved in the original taking or had accepted a ride knowing the car was stolen, and there was nothing to show he ran away because of consciousness of guilt. (Clark, supra, 251 Cal.App.2d at p. 874.)
Unlike Clark, Medrano was found alone in the driver's seat of the truck a day after Beaghler reported it missing. As discussed, Beaghler testified that on March 17 he drove three and a half hours from his home in Bishop to a motel in Lancaster. Beaghler left his truck in the motel's parking lot that evening and found it missing the next morning. A day later, when Deputy Gonzalez saw Medrano exit the driver's side of Beaghler's truck and asked him to stop, Medrano fled. Medrano was apprehended, and he acknowledged he got the truck from Beaghler. Medrano claimed he did side jobs like landscaping for Beaghler and that Beaghler "let me use his truck." And Medrano stated he started working for Beaghler "[j]ust, like the other day" or "[a] little longer than the other day." But Beaghler denied knowing Medrano or hiring anyone to do landscaping work while in Lancaster.
As discussed, both parties in their closing arguments framed the theory of liability as Medrano driving the truck from the motel parking lot to the recovery location on the street at Avenue H-8 and Elm Street. Medrano does not contend that the jury's guilty finding based on theory B cannot be construed as a finding of an unlawful taking by driving the truck from the motel parking lot to the recovery location.
The jury could reasonably have inferred based on Medrano's statement that Beaghler let him use the truck and that he started working for Beaghler "the other day" or "[a] little longer than the other day," that Medrano took the truck in the evening of March 17 or early morning of March 18. Although there was no evidence Medrano drove the truck after the theft, he was in possession of the vehicle on the night of March 19 and fled when he saw the deputies. Under these circumstances, substantial evidence supports the jury's findings Medrano took the truck by driving it from the motel parking lot to the recovery location on the street without Beaghler's permission, and Medrano intended to deprive Beaghler of possession of the truck.
However, as the People concede, there was no evidence of the value of the 1995 pickup truck, which had between 290,000 and 295,000 miles on its odometer. Because there is no evidence the truck's value was more than $950, the People concede and we agree that Beaghler's felony conviction of unlawful taking of a vehicle under section 10851(a) must be reduced to a misdemeanor conviction. (Bullard, supra, 9 Cal.5th at p. 110 ["a violation of section 10851 must be punished as a misdemeanor theft offense if the vehicle is worth $950 or less"]; see People v. Jackson (2018) 26 Cal.App.5th 371, 373 [reversing felony conviction of unlawful taking or driving based on instructional error and remanding for the People to accept "the conviction's reduction to a misdemeanor" or retry "the charge as a felony"]; People v. Bussey (2018) 24 Cal.App.5th 1056, 1064 [reversing conviction based on instructional error and remanding for the People to elect to retry the defendant for felony unlawful taking or driving, or to accept a reduction to a misdemeanor].)
In Jackson and Bussey, the Courts of Appeal reversed the convictions under section 10851(a) and remanded to give the People the option to retry the defendant for felony taking or driving the vehicle or to accept a reduction of the conviction to a misdemeanor because the jury was instructed on both a valid theory of liability (posttheft driving) and invalid theory of liability (taking the vehicle without a finding of value), and the record did not state the basis on which the jury rested its verdict. (See People v. Jackson, supra, 26 Cal.App.5th at p. 378; People v. Bussey, supra, 24 Cal.App.5th at p. 1062.) In this case, the People agree that Medrano's conviction should be reduced to a misdemeanor.
B. The Prosecutor Did Not Commit Prosecutorial Misconduct
"'"'Under the federal Constitution, a prosecutor commits reversible misconduct only if the conduct infects the trial with such "'unfairness as to make the resulting conviction a denial of due process.'"'"' [Citation.] Misconduct that falls short of a federal due process violation may nevertheless violate state law if it 'involves the use of deceptive or reprehensible methods to persuade the court or jury.'" (People v. Dworak (2021) 11 Cal.5th 881, 909-910; accord, People v. Hoyt (2020) 8 Cal.5th 892, 943.) "In evaluating such a claim, we are cognizant that '"[a] prosecutor is given wide latitude to vigorously argue his or her case and to make fair comment upon the evidence, including reasonable inferences or deductions that may be drawn from the evidence."'" (Dworak, at p. 910; accord, People v. Fayed (2020) 9 Cal.5th 147, 204 (Fayed).) We review claims of prosecutorial misconduct under an abuse of discretion standard [citation], asking whether there is a reasonable likelihood the jury construed the remarks in an objectionable fashion." (Dworak, at p. 910; accord, Fayed, at p. 204.)
Medrano forfeited his claim of prosecutorial misconduct by failing to object. "To preserve a claim of prosecutorial misconduct on appeal, '"a criminal defendant must make a timely and specific objection and ask the trial court to admonish the jury to disregard the impropriety."'" (Fayed, supra, 9 Cal.5th at p. 204; accord, People v. Johnsen (2021) 10 Cal.5th 1116, 1164.) However, because Medrano argues ineffective assistance of counsel, we consider the asserted instances of prosecutorial misconduct to determine whether Medrano's counsel should have raised an objection to the prosecutor's arguments (assuming no tactical reason for not objecting). There was no misconduct.
To prevail on a claim of ineffective assistance of counsel, "defendant must show, among other things, that his 'counsel's performance was deficient, in that it fell below an objective standard of reasonableness under prevailing professional norms.' [Citation.] In evaluating his claim, we 'defer[] to counsel's reasonable tactical decisions' and presume that 'counsel acted within the wide range of reasonable professional assistance.'" (People v. Arredondo (2019) 8 Cal.5th 694, 711; accord, People v. Salcido (2008) 44 Cal.4th 93, 172.)
1. The prosecutor's alleged reference to evidence not in the record
During cross-examination, Deputy Gonzalez testified he did not write the police report; he was not the deputy who searched Medrano; and he did not remember if anything was recovered from Medrano's person. Defense counsel asked, "If you know, Deputy Gonzalez, was a key to the car found on Mr. Medrano's person?" Deputy Gonzalez answered, "I don't recall."
In her closing argument, defense counsel argued, "We know that the deputies did not find a key on Mr. Medrano's person. There was also no key found in the car itself, so we have no evidence that he actually drove the car, again, from the hotel to parking lot to Avenue[] H-8 and Elm Street."
In his rebuttal argument, the prosecutor responded, "I want to talk about this idea that there was no key, okay. Well, counsel specifically stated that they didn't find one and none was found in the car. Well, that's not in evidence. There's a difference if someone sat there and said, 'Yes, we found no key," which that's not what the state of the evidence is. There was no evidence whether a key was or was not found, but defense counsel is stating it as if none was found. That is not what the evidence is. It doesn't mean that he didn't have one. It's that evidence did not come out. So it doesn't mean that it doesn't exist or he didn't have it. [¶] Let's be clear. It's not your responsibility to come up with a better story, to speculate .... It's your job to look at the evidence that you have."
Medrano contends the prosecutor implied the existence of inculpatory evidence (the existence of a key) not presented to the jury. It is prosecutorial "misconduct to misstate the evidence or go beyond the record." (Fayed, supra, 9 Cal.5th at p. 204; accord, People v. Young (2019) 7 Cal.5th 905, 933.) But the prosecutor did not argue that Medrano had a key or other tool to operate the truck. Rather, the prosecutor rebutted defense counsel's argument that the deputies did not find a key on Medrano's person. This was not an improper argument. Moreover, the trial court instructed the jury that "[s]tatements made by the attorneys during the trial are not evidence." We presume the jury understood and followed the court's instructions. (People v. Frederickson (2020) 8 Cal.5th 963, 1026; People v. Buenrostro (2018) 6 Cal.5th 367, 431.)
2. The prosecutor's alleged misstatement of fact
During his closing argument, the prosecutor argued, "[Medrano's] in the driver's seat when [the deputies] drive by. He doesn't deny it in their interview. In fact, he admits to using the truck for landscaping. He even admits getting it in the same time frame. He says, like, 'I got it the day before.' The exact language was 'just like the other day,' okay. 'The other day.' It's not like he's saying he had it for a long period of time or even 'I just got it an hour ago.' It just happens to sound exactly like when the car was taken from the motel."
Medrano argues the prosecutor misled the jury by asserting Medrano admitted to getting the truck when it was taken from the motel. The prosecutor did not misstate the evidence. The deputies found Medrano in the driver's seat of the truck a day after Beaghler reported it stolen. After his arrest, Medrano told the deputies that Beaghler allowed him to use the truck and that he had been working for Beaghler "the other day" or "[a] little longer than the other day." The prosecutor fairly commented on the reasonable inference from this evidence that Medrano got the truck from Beaghler in the same time frame when the truck was taken from the motel. And, as discussed, we presume the jury understood and followed the trial court's instruction that statements by the attorneys during trial are not evidence.
3. The prosecutor's alleged misstatement of the standard of proof
In his closing argument, the prosecutor stated, "So let's talk about, first of all, the standard by how much we need to prove the case, okay: beyond a reasonable doubt. As we talked about earlier today, it's going to be reasonable. If you have a doubt, it's got to be reasonable. It's based on the entire comparison and consideration of all the evidence. You have to look at all the evidence together. You can't just look at just a sliver of a piece of evidence with blinders on. You got to look at the entirety of the evidence together and then decide 'if I have a doubt, is it even reasonable?' Remember, this is not beyond all possible doubt, an imaginary doubt, shadow of a doubt, hundred percent certainty, to a scientific certainty. That's not what this is. This is beyond a reasonable doubt."
Defense counsel in her closing argument asserted, "There's an instruction that says what reasonable doubt means. And in that instruction-it's instruction 2.90-it says 'abiding conviction.' Now, what is an abiding conviction? That's a long-lasting belief, something that stands the test of time." Defense counsel added, "[Y]ou must hold the prosecution to their burden of proof. And yes, it is true, what the prosecution said, that it's not beyond all possible doubt but beyond a reasonable doubt which means that [if] even one of the reasons that I pointed out is reasonable, [it] requires you to return a verdict of not guilty." At the conclusion of her argument, defense counsel emphasized, "Each and every element has to be proven beyond a reasonable doubt."
In his rebuttal argument, the prosecutor argued, "[I]n this case, you don't need DNA, fingerprints for all of that. What it comes down to is if you believe that the defendant drove or took that truck at any point, without permission, then he's guilty. That's what it boils down to. If you believe that the defendant drove or took that car at any point without permission, he's guilty."
Medrano contends the prosecutor asked the jury to convict based on a belief of guilt and not under the standard of proof beyond a reasonable doubt. "'[I]t is improper for the prosecutor to misstate the law generally [citation], and particularly to attempt to absolve the prosecution from its prima facie obligation to overcome reasonable doubt on all elements [citation].'" (People v. Cortez (2016) 63 Cal.4th 101, 130.) "To determine whether a prosecutor has committed reversible misconduct in this context, we examine (1) whether it was reasonably likely that the prosecutor's statements misled the jury on reasonable doubt and (2) whether there is 'a reasonable probability that the prosecutor's argument caused one or more jurors to convict defendant based on a lesser standard than proof beyond a reasonable doubt.'" (People v. Johnsen, supra, 10 Cal.5th at p. 1165-1166; accord, People v. Centeno (2014) 60 Cal.4th 659, 672 (Centeno) [the prosecutor committed misconduct by leaving "the jury with the impression that so long as her interpretation of the evidence was reasonable, the People had met their burden"].)
Before closing arguments, the trial court instructed the jury that the People had "the burden of proving [Medrano] guilty beyond a reasonable doubt," and the court defined "reasonable doubt" as "that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge." The prosecutor acknowledged in his closing argument that he had the burden of proving the case beyond a reasonable doubt. And defense counsel likewise emphasized that the prosecution had the burden to prove each element beyond a reasonable doubt. Contrary to Medrano's contention, it was not necessary for the prosecutor to remind the jury in his rebuttal argument that all necessary facts had to be proven beyond a reasonable doubt. And unlike in Centeno, relied on by Medrano, the prosecutor did not suggest the People met their burden of proof if the prosecutor's interpretation of the evidence was reasonable. (Compare Centeno, supra, 60 Cal.4th at p. 674 [prosecutor improperly "diluted the People's burden" by repeatedly suggesting "the jury could find defendant guilty based on a 'reasonable' account of the evidence"].)
The fourth alleged instance of prosecutorial misconduct was the prosecutor's argument regarding the elements of posttheft driving and felony taking under section 10851(a). The prosecutor's argument on posttheft driving tracked the jury instruction, but, as discussed, the instruction failed to require a substantial break between the taking and the posttheft driving. Medrano also argues the prosecutor misstated the law by referring to an unlawful taking as requiring only two elements, and not the third element that the value of the truck exceed $950. Because we conclude Medrano could not be convicted of posttheft driving and we reduce the felony conviction of the unlawful taking of a vehicle to a misdemeanor, any misstatements in the prosecutor's arguments were not prejudicial.
C. Medrano Is Entitled to Additional Presentence Custody Credits
"In general, a defendant receives . . . conduct credits toward his term of imprisonment for good behavior and willingness to work during time served prior to commencement of sentence." (People v. Thomas (1999) 21 Cal.4th 1122, 1125; accord, People v. Arevalo (2018) 20 Cal.App.5th 821, 827 ["A defendant may 'accrue both actual presentence custody credits under . . . [Penal Code] section 2900.5 and conduct credits under . . . section 4019 for the period of incarceration prior to sentencing.'"].) "Under [Penal Code] section 4019, a defendant can earn two conduct credits for every two actual credits." (Arevalo, at p. 827.) We review de novo a trial court's award of presentence custody credits. (Ibid.)
Medrano contends, the People concede, and we agree Medrano is entitled to additional presentence custody and conduct credits. Medrano was arrested on March 19, 2023 and sentenced on August 31, 2023. The trial court awarded Medrano 164 days of actual custody credits, plus 164 days of conduct credits for a total of 328 days of presentence custody credits. We agree with the parties that Medrano is entitled to 166 days of actual credits and 166 days of conduct credits for a total of 332 days of presentence custody credits.
Under Penal Code section 1237.1, a defendant cannot appeal "from a judgment of conviction on the ground of an error in the calculation of presentence custody credits, unless the defendant first presents the claim in the trial court at the time of sentencing, or if the error is not discovered until after sentencing, the defendant first makes a motion for correction of the record in the trial court." Penal Code "section 1237.1 does not require a motion be filed in the trial court as a precondition to litigating the amount of presentence credits when there are other issues raised on direct appeal." (People v. Acosta (1996) 48 Cal.App.4th 411, 420; accord, People v. Florez (2005) 132 Cal.App.4th 314, 318, fn. 12.) Because Medrano raised other issues on direct appeal, section 1237.1 does not bar his challenge to the presentence custody credits.
Medrano contends the cumulative effects of the instructional error regarding posttheft driving, the lack of evidence of the truck's value, and the multiple instances of prosecutorial misconduct prejudiced him. "'[A] series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error.'" (People v. Abilez (2007) 41 Cal.4th 472, 523; accord, People v. Hill (1998) 17 Cal.4th 800, 844.) As discussed, there was no prosecutorial misconduct. As for the instructional error on posttheft driving, we reverse the conviction based on the unlawful driving theory. Moreover, in light of the People's concession, we reduce Medrano's felony conviction under section 10851(a) to a misdemeanor conviction because there was no evidence of the vehicle's value. Under these circumstances, there was no cumulative error that prejudiced Medrano.
DISPOSITION
The judgment is modified to reduce Medrano's conviction to a misdemeanor conviction of section 10851(a). We affirm the judgment of conviction as modified, vacate the sentence, and remand for the trial court to resentence Medrano. The court is also directed to award Medrano 166 days of actual custody credits and 166 days of conduct credits for a total of 332 days of presentence custody credits.
We concur: SEGAL, Acting P. J. PULOS, J. [*]
[*] Judge of the San Diego County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.