Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. No. FSB055312 Bryan Foster, Judge.
Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P.J.
A jury convicted defendant Kalief Parker of unlawfully taking/driving a vehicle (Veh. Code, § 10851, subd. (a)). In bifurcated proceedings, the trial court found true allegations that defendant had suffered three convictions for which he served prison terms (Pen. Code, § 667.6, subd. (b)). Defendant was sentenced to prison for four years and appeals, claiming jury instruction and sentencing error. We reject all his contentions, save one concerning the imposition of a concurrent term on one of the Penal Code section 667.6, subdivision (b) true findings. We therefore affirm, while directing the trial court to strike this term and correct other errors in the abstract of judgment and minutes of the sentencing hearing.
We are noticing a disturbing trend at trials which puts us at a distinct disadvantage in performing our duties. Two examples of it occurred in this case. When the officer was testifying, he was asked by the prosecutor to point out where the car was traveling on a diagram of streets. He did, but he was not asked to mark the exhibit and the record does not reflect where on the exhibit he indicated. He was also asked by defense counsel where, on the same exhibit, he was before stopping defendant. Again, he was not asked to mark the exhibit and the record does not reflect where he indicated on the exhibit. Although this did not become a problem for us in this particular case, in can be in others. Trial courts, prosecutors and defense attorneys should be mindful that most criminal cases are appealed and we then have the job of trying to determine what the jury was told.
The victim said that his 1988 Nissan was taken from outside his Rialto home sometime between 5:15 p.m. on March 29, 2006 and 5:45 a.m. on March 30. He said he had given no one, other than his daughter, permission to take the car and he did not know defendant. On March 31, 2006, a police officer saw the car traveling at a high rate of speed down a residential street, going through two stop signs without stopping and tailgating the car ahead of it. He pulled over the car, which was being driven by defendant. Defendant identified himself as Anthony Smith, but later gave his true name after the officer said he did not believe him. Defendant was nervous and mumbled his name. He had neither the registration for the car, a driver’s license nor any form of identification. A GM/Cadillac key, which had been shaved, was in the ignition. Such a key can be used to operate a car like the Nissan defendant was driving.
Issues and Discussion
1. Jury Instruction
a. Mistake of Fact
The officer who eventually arrested defendant testified that after he asked defendant for his driver’s license and the car’s registration, defendant rummaged through the glove box, then stated he didn’t have the registration because the car belonged to a friend and he had borrowed the car from this person. During argument to the jury, defense counsel asked the jurors to believe his client’s statement that he borrowed the car from his friend. Counsel asserted that there was a failure of proof as to who the owner was—that the registered owner was a female living in Los Angeles, although he acknowledged that the police released the car to the victim who identified the car as his. Counsel also asserted that there was no evidence that defendant intended to deprive the owner of the vehicle. The jury was instructed that in order to convict defendant of unlawfully taking/driving the vehicle, defendant had to have the specific intent to deprive the owner of possession or ownership of the vehicle for any period of time.
The victim also testified that despite having purchased the car four or five months before the crime, he failed to register it in his name with the Department of Motor Vehicles and failed to insure it. There was no explanation at trial as to how the police came to notify him that they had recovered the car, other than the officer’s testimony that he asked dispatch to contact the registered owner and they contacted the victim. The victim testified that he had the pink slip to the car. Mail addressed to the victim and a receipt for service performed on the car in the victim’s name was found inside the car.
Defendant here contends that the trial court had a sua sponte duty to instruct the jury on mistake of fact and the court’s failure to do so requires reversal of his conviction. We disagree. Specifically, he asserts that the trial court should have told the jury, “‘If defendant’s conduct would have been lawful under the facts as he believed them to be, he did not commit auto theft.... [¶] If you find that the defendant believed that the vehicle belonged to his friend from whom it was borrowed, he did not have the specific intent or mental state required for auto theft....’ [Citation.]” First, defendant’s only mistake of fact would have been that his friend, from whom he borrowed the car, was not the owner. However, since there was no evidence who defendant’s friend was, there was no evidence that he was not the owner. The friend could have been the registered owner, as could any of the others who were connected to the car through DMV records. Second, if the jury believed defendant’s statement and concluded that defendant borrowed the car from his friend, the owner, he could not possibly have had the specific intent to deprive the owner of the vehicle and the jury would have acquitted defendant, under the instructions given, of taking/driving the vehicle. Thus, the instruction defendant now claims should have been given was unnecessary as it was covered by the instructions given.
Of course, defendant was not charged with auto theft, but with taking/driving a vehicle.
In fact, the officer was asked if defendant had said anything else about the friend and he said that defendant had not.
The officer testified that the car’s Vehicle Identification Number was run, and he wrote in his recovered stolen vehicle report that the registered owner was Olga Chin of Los Angeles, however, there was an indication of a change of ownership and the DMV printout showed the registered owner was a Joseph Verdugo of Rancho Cucamonga, and a Soto Moingue of Covina prior to him. Later, the officer testified that Ms. Chin was the “last registered owner.” A temporary registration paper taped to the car was faded to the point that only the city of the owner was legible, however, it was the city in which the victim lived.
b. Admission
The shaved key that was in the ignition of the car when the officer stopped it was on a key ring that also held a Nissan key, which did not work in the ignition, doors or trunk of the stolen car, and a key, which the officer said defendant had told him was a house key. Defendant did not say to whose house the key belonged or that the key belonged to him or how he knew it was a house key. We do not agree with defendant that this was an admission, which, “tend[ed] to prove [defendant’s] guilt when considered with the rest of the evidence.” Therefore, we also disagree with him that the trial court had a sua sponte duty to instruct the jury on admissions of a defendant and that he could not be convicted based on his out of court statement alone. Even if the statement could be viewed as an admission, the absence of both instructions does not require reversal as, given the weight of the evidence, it is not reasonably probable a different result would have been reached had they been given. (People v. Heishman (1988) 45 Cal.3d 147, 166.)
Specifically, the officer testified, “The defendant asked me when I got the car key, there was the house key.”
Thus, defendant’s assertion that he said it was his house key is incorrect.
The fact that the prosecutor told the trial court that she felt the statement was an admission is not dispositive to this court.
c. Cumulative Effect of Instructional Errors
Having concluded there were not prejudicial instructional errors, we likewise reject defendant’s assertion that the cumulative effect of these errors requires reversal.
2. Sentencing
The parties agree that because defendant served the prison term for his 2001 prior conviction concurrently with the prison term for his 2002 prior, the enhancement under Penal Code section 667.6, subdivision (b) for the former should be stricken, not ordered to be served concurrently as the sentencing court had. Therefore, we will order that the concurrent sentence be stricken.
Disposition
The trial court is directed to amend the abstract of judgment and minutes of the sentencing hearing to note that the concurrent one-year term for the third prison prior Penal Code section 667.6, subdivision (b) is stricken. The court is further directed to amend the abstract to show that this was a jury trial, not a court trial, and defendant was not sentenced pursuant to Penal Code section 667, subdivisions (b)-(i), as the abstract currently states. In all other respects, the judgment is affirmed.
We concur: McKINSTER, J., RICHLI, J.