Opinion
A152662
09-24-2018
THE PEOPLE, Plaintiff and Respondent, v. MARCOS RODRIGUEZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco City & County Super. Ct. No. SCN226293)
Defendant Marcos Rodriguez was convicted of attempted unlawful taking of a motorcycle, possession of methamphetamine and possession of burglar tools. He claims the court erred by (a) admitting evidence of a prior unlawful taking of a motorcycle and reopening the case to allow evidence of his guilty plea to that offense, (b) instructing the jury on flight as evidence of guilt, and (c) allowing the parties to stipulate that the reading of the jury instructions need not be reported and thus denying him due process. Defendant also maintains, and the Attorney General concedes, that the trial court erred in imposing a Penal Code section 666.5 enhancement and a concurrent term on the possession of burglar tools. We remand the case for resentencing, with directions to strike the enhancement and stay the sentence on the possession of burglar tools. In all other respects, we affirm.
BACKGROUND
On a morning in August 2016, the owner of a customized Yamaha motorcycle parked in front of a jiu-jitsu studio where he was taking a class. The studio had floor-to-ceiling windows, and he could see his motorcycle from inside. After finishing his class, the owner looked through the front window and saw defendant on his motorcycle, wearing a helmet. Defendant was "about 60 percent out of the parking stall."
The owner ran out, asking, "What are you doing?" Defendant responded, "This is my buddy's bike. He asked me to move it for him." The owner "killed the power switch," turning off the engine. The two men "tussled," and the motorcycle tipped over. The owner "bear-hugged" defendant using a martial arts hold and "held him because [he] didn't want him trying to claw me or do anything desperate to get away from me." Defendant begged the owner not to call the police. The owner asked him, "How did you get it started so quick?" and defendant responded, " 'I had taken it before, and I knew I could take it.' " The motorcycle had, indeed, been stolen once before, about five years earlier, and still had a damaged ignition as a result.
Police arrived in about 10 minutes and arrested defendant. They searched him and found "a small amount of methamphetamine in his right jacket pocket." The parties stipulated the substance was tested and determined to be 0.7 grams of methamphetamine.
Police also found a gold key in the motorcycle's ignition, and a foldable knife blade "standing open into the ignition."
At trial, another San Francisco motorcycle owner testified that her motorcycle, which had been parked in front of her home, was stolen in 2014. After police caught defendant riding that motorcycle, which had an "altered or shaved" key in the ignition, they searched him and found a baggie containing methamphetamine. Defendant told police he was test-driving that motorcycle because he was interested in buying it "from a friend." The trial court sua sponte ruled the prior conviction from that taking was relevant, and thus admissible under Evidence Code section 1101, because the defense was raising, as to the instant motorcycle taking, a "mistake-of-fact" defense. Without withdrawing his objection to admission of the prior conviction, the defense agreed to stipulate that defendant had pleaded guilty to unlawfully driving the woman's motorcycle.
A jury convicted defendant of attempted taking of a vehicle (Pen. Code, § 664, Veh. Code, § 10851, subd. (a)), possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), and possession of burglar tools (Pen. Code, § 466). The court found true the enhancing allegation under Penal Code section 666.5 that defendant had a prior felony conviction of Vehicle Code section 10851.
The court imposed the upper term of two years on the vehicle taking count, based in part on the sentencing enhancement under Penal Code section 666.5. The court imposed one-year sentences for methamphetamine possession and burglar tool possession, both to be served concurrently.
DISCUSSION
Admission of Defendant's Prior Unlawful Taking of a Motorcycle
Defendant maintains the trial court erred in admitting evidence of his prior conviction of unlawful taking of a motorcycle.
Defendant also maintains admission of this evidence violated his federal equal protection and due process rights. He acknowledges "California state decisions have rejected a due process challenge to the introduction of propensity evidence . . . [h]owever, as this is a question not yet reached by the United States Supreme Court . . . [he] rais[ed] the issue here to preserve his right to federal review." Accordingly, we need not and do not reach this issue.
" 'Evidence that a defendant committed crimes other than those for which he is on trial is admissible when it is logically, naturally, and by reasonable inference relevant to prove some fact at issue, such as motive, intent, preparation or identity.' " (People v. Fuiava (2012) 53 Cal.4th 622, 667.) " 'Evidence that a defendant has committed crimes other than those currently charged is not admissible to prove that the defendant is a person of bad character or has a criminal disposition; but evidence of uncharged crimes is admissible to prove, among other things, the identity of the perpetrator of the charged crimes, the existence of a common design or plan, or the intent with which the perpetrator acted in the commission of the charged crimes. (Evid. Code, § 1101.) Evidence of uncharged crimes is admissible to prove identity, common design or plan, or intent only if the charged and uncharged crimes are sufficiently similar to support a rational inference of identity, common design or plan, or intent.' " (People v. Foster (2010) 50 Cal.4th 1301, 1328.)
" 'In cases in which the prosecution seeks to prove the defendant's identity as the perpetrator of the charged offense by evidence he had committed uncharged offenses, admissibility "depends upon proof that the charged and uncharged offenses share distinctive common marks sufficient to raise an inference of identity." ' [Citation.] A somewhat lesser degree of similarity is required to show a common plan or scheme and still less similarity is required to show intent." (People v. Roldan (2005) 35 Cal.4th 646, 705 (italics added), overruled on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) "We review for abuse of discretion rulings by the trial court on the admissibility of evidence, including rulings that turn on the relative probativeness and prejudice of the evidence in question." (People v. Hamilton (2009) 45 Cal.4th 863, 930.) If an abuse is found, we then consider whether admission of the evidence was prejudicial, i.e., whether there is a reasonable probability a result more favorable to defendant would have been reached had evidence of the 2014 incident not been admitted. (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Scheer (1998) 68 Cal.App.4th 1009, 1018-1019.)
The trial court admitted evidence of the prior crime and conviction because it was relevant to intent. In allowing admission, the trial court observed the defense was that "[d]efendant was of a mistaken belief that he had consent to move the bike from a friend." The court had agreed to give defendant's requested instruction on intent, which included the following: "If you find the defendant believed that he was moving a friend's motorcycle at the request of his friend, he did not have the specific intent or mental state required for attempted unlawful taking or driving a vehicle."
The trial court instructed the jury that it could consider the evidence of the 2014 unlawful taking of a motorcycle "for the limited purpose of deciding whether: [¶] The defendant acted with the intent to deprive [the owner] of possession or ownership of his vehicle for any period of time in this case; or [¶] The defendant's alleged actions were not the result of mistake; or [¶] The defendant had a plan or scheme to commit the offense alleged in this case."
In both crimes, defendant used a burglary tool to start a motorcycle he found parked on a public street, was apprehended while on the motorcycle, had methamphetamine on him, and when confronted, claimed someone else had given him permission to take the motorcycle. Thus, there was ample similarity between the charged unlawful taking of the motorcycle and the 2014 taking of a motorcycle, and evidence of the latter was admissible under Evidence Code section 1101 to prove intent and motive. (Foster, supra, 50 Cal.4th at p. 1328.) Indeed, defendant concedes that "admittedly the uncharged and charged offenses were identical, with the same intent to steal."
Nor did the court abuse its discretion under Evidence Code section 352 in concluding the 2014 taking of a motorcycle was more probative than prejudicial. The court weighed the probative value against the potential for undue prejudice. The court also gave a limiting instruction, emphasizing that the jury was to consider the evidence only as to intent, lack of mistake, or common plan or scheme. Accordingly, the trial court acted well within its discretion. (See People v. Stewart (1985) 171 Cal.App.3d 59, 65 [an abuse of discretion is found only if the court failed to engage in any weighing of factors under Evidence Code section 352 or if the trial court's ruling exceeded the bounds of reason].)
Even if the court had erred in admitting the evidence, which it did not, there was overwhelming evidence of defendant's guilt. Defendant was caught in the act of attempting to take the motorcycle by its owner, and physically restrained by the owner until police arrived. Defendant initially said he was moving the motorcycle for a friend, but then admitted to the owner that he had taken the motorcycle before and knew he could take it. He was in possession of a burglar tool, a "knife key," that was used in the motorcycle ignition to start it. It is not reasonably probable there would have been a result more favorable to the defendant if the evidence of the prior unlawful taking had been excluded.
The Trial Court Did Not Err in Reopening the Case for Limited Evidence
Defendant also claims the trial court's decision to reopen the case after both parties rested violated his constitutional rights to due process and a fair trial.
The trial court has discretion to order a case reopened. Penal Code section 1093 "clearly accords the trial court discretion to allow the parties to ' offer evidence upon their original case' when the court does so 'for good reason' and 'in furtherance of justice.' [Penal Code] [s]ection 1094 also expressly gives the trial court discretion to depart from the order of proceedings outlined in section 1093: 'When the state of the pleadings requires it, or in any other case, for good reasons, and in the sound discretion of the court, the order prescribed in Section 1093 may be departed from.' [¶] Courts have interpreted sections 1093 and 1094 as giving a trial court 'broad discretion to order a case reopened and allow the introduction of additional evidence [citations].' [Citation.] 'No error results from granting a request to reopen in the absence of a showing of abuse.' " (People v. Riley (2010) 185 Cal.App.4th 754, 764.)
" ' "Factors to be considered in reviewing the exercise of [the trial court's] discretion include the stage the proceedings had reached when the motion was made, the diligence shown by the moving party in discovering the new evidence, the prospect that the jury would accord it undue emphasis, and the significance of the evidence." ' " (People v. Riley, supra, 185 Cal.App.4th at p. 764.)
In this case, the court itself raised the issue of revisiting whether evidence of the prior conviction should be admitted and reopening the case. Immediately after the defense rested, the court held a conference with both counsel regarding the jury instructions. In the course of discussing the limiting instruction regarding the 2014 taking of a motorcycle, the court stated "this flagged to me the need to revisit the decision that I made yesterday about whether or not I would permit evidence of the prior conviction from August 2nd, 2014. . . . [¶] The reason that it raised in my mind the need to revisit this is because when I read [jury instruction] 375 [regarding the prior offense], that instruction explicitly places on the People the burden of proof by a preponderance of the evidence of showing that the Defendant, in fact, committed the offense. . . . [¶] . . . [¶] So I think particularly in a case whereas here I have now decided I am going to allow the Defense to raise a mistake-of-fact defense based on what appears to be a minimal threshold of evidence to justify that instruction and where I have also had testimony from a CHP officer and a complaining witness—neither one of whom was able to testify about observing Defendant stealing the motorcycle on August 2nd, 2014—when it was initially taken—and particularly where the cross-examination of that CHP officer yesterday also elicited testimony of the CHP officer having a lack of knowledge as to where the Defendant obtained the motorcycle at issue in that event and that [the victim] never told that CHP officer who she thought took her bike, in my mind, all that testimony essentially created this inference that as to the August 2014 event, it was unknown who, in fact, was legally culpable for stealing that bike."
Looking to the Riley factors, there was no showing of a lack of diligence in introducing evidence of the prior conviction. The court sua sponte reconsidered its previous ruling excluding it, given the state of the evidence. The decision to reopen the case was made almost immediately after the defense rested, and before the jury began deliberations. As the court explained, the evidence of defendant's prior conviction was significant. And, given that evidence of the facts surrounding the prior taking of a motorcycle was admitted and the evidence of the conviction was admitted as a single stipulated fact, there is little chance the jury would accord undue weight to the one-sentence stipulation about the conviction. In sum, defendant has failed to demonstrate the trial court abused its discretion.
Because we conclude there was no error, we likewise conclude there was no due process violation. (See People v. Partida (2005) 37 Cal.4th 428, 436-437 ["If the reviewing court finds error, it must also decide the consequences of that error, including, if the defendant makes the argument, whether the error was so serious as to violate due process."].)
Waiver of Transcription of Jury Instructions
Defendant maintains the trial court's request that both counsel waive transcription of the jury instructions denied him his due process rights to "meaningful appellate review," and a fair jury trial. He also claims his attorney's stipulation constituted ineffective assistance of counsel.
After closing statements, the court stated, "I am now going to read the instructions. [¶] Will both attorneys waive transcription of my reading of the instructions?" Both the prosecutor and the defense attorney waived transcription. After the instructions were given, the court indicated, "So we're outside the presence of the jurors. I wanted to note a couple of things: [¶] I think I need [to] make a couple of quick edits to Instruction 252 to comport with what I said verbally. It was my mistake, but I didn't reference Count 3 [possession of burglar tools] specifically as the other charge that has a specific intent. [¶] And then Instruction 3406, that one has an error also. [¶] I described the charge in Count 1 as 'unlawful taking.' It should be 'attempted.' I am going to make those edits so I can send these into the jury room. [¶] Is that all right?" Both the prosecutor and the defense counsel responded affirmatively.
Defendant concedes that "[g]enerally, a defendant's stipulation not to record a portion of the trial forfeits the claim that the record is inadequate for appellate review." (See People v. Rogers (2006) 39 Cal.4th 826, 857 (Rogers).) Relying on People v. DeFrance (2008) 167 Cal.App.4th 486 (DeFrance), defendant maintains this court must "review[] the issue on the merits." He asserts, as the defendant in DeFrance claimed, he did "not personally enter a written stipulation," and his counsel was ineffective in so stipulating. (See Id. at p. 495.)
In DeFrance, the court recognized the general rule that a stipulation waiving preparation of a reporter's transcript forfeits a claim of inadequate record. (DeFrance, supra, 167 Cal.App.4th at p. 495.) The court went on, however, to consider whether the defendant was "prejudiced by the lack of an accurate record of [the] jury instructions." (Ibid.) The court explained "the true issue is whether defendant was prejudiced by a jury instruction. Accordingly, we focus on the actual dispute over the jury instructions in this case, not on possible problems that may arise absent a reporter's transcript of the jury instruction." (Ibid.) Noting that defendant did not claim an omission in an instruction was error, the court concluded that "[w]hile we would prefer a reporter's transcript of the instructions read to the jury, we find no prejudicial error in its absence." (Id. at p. 496.)
Defendant claims the "discrepancy between the written and oral instructions" in this case demonstrates his due process rights were violated. To the contrary, after the court orally instructed the jury, it almost immediately informed counsel it had made two misstatements, and indicated it would "make those edits so I can send these into the jury room. [¶] Is that all right?" Both the prosecutor and the defense counsel agreed, forfeiting any claim of error in this regard. And, defendant has made no showing the corrected instructions were not provided to the jury. Indeed, the jury's verdict on count 1, finding him guilty of "attempted unlawful driving or taking" of the motorcycle, demonstrates that the jury received the corrected written instructions.
Even if any error were shown, defendant fails to demonstrate prejudice or that, but for counsel's alleged errors, the result of the proceedings would have been different. (Rogers, supra, 39 Cal.4th at p. 861, citing Strickland v. Washington (1984) 466 U.S. 668, 693-694.) The trial court stated on the record that it had made some errors in orally instructing the jury, and indicated it was giving the jury a written version of the corrected jury instructions. Indeed, the court's oral misstatement that count 1 was an "unlawful taking" rather than an "attempted unlawful taking" would have inured to defendant's benefit. In sum, defendant has failed to demonstrate either error or prejudice.
The Flight Instruction
Defendant also claims the court erred in instructing the jury pursuant to CALCRIM No. 372 that flight may be considered as showing awareness of guilt. The court instructed the jury as follows: "If the defendant fled or tried to flee immediately after the crime was committed, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled or tried to flee, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled or tried to flee cannot prove guilt by itself."
Defendant does not claim the instruction itself was erroneous, but that there "was no evidentiary basis for giving the flight instruction" because "there was no evidence that [he] made any attempt to flee after [the owner] came up."
"An instruction on flight is properly given if the jury could reasonably infer that the defendant's flight reflected consciousness of guilt, and flight requires neither the physical act of running nor the reaching of a far-away haven. [Citation.] Flight manifestly does require, however, a purpose to avoid being observed or arrested." (People v. Crandell (1988) 46 Cal.3d 833, 869, abrogated on other grounds by People v. Crayton (2002) 28 Cal.4th 346.)
Contrary to defendant's claim, the evidence showed he attempted to flee. The owner testified he ran outside when he saw defendant on his motorcycle "already about 60 percent out of the parking stall." He said, "What are you doing?" And defendant responded, "This is my buddy's bike. He asked me to move it for him." The owner "killed the power switch" which shut off the motorcycle engine. The owner "was worried he was going to pull away from me. Because . . . I saw him look down at the cockpit like he was still going to try to figure out the clutch. [¶] So we tussled. I put my hands on him. He put his hands on me to stop me. [¶] . . . [¶] I put my hands on him because I was worried about him taking off with the bike, and then he put his hands on me and shoved me off of him." The owner "circled around to his back. I believe I bear-hugged him so I had all his mass, and I sat down on the ground with him. [¶] . . . [¶] I just held him in the highest percentage mixed martial arts move there is." The owner explained, "My goal was to hold onto the guy until someone could sort out the situation—hopefully, the police." Defendant "tried to get free for a while. . . . [¶] He begged me straight man-to-man, [p]lease, don't send me to jail today." The men "were in this exact same position . . . for ten minutes" until the police arrived.
This was sufficient evidence to allow the jury to determine whether flight occurred, and if so, what weight to accord to that act. (See People v. Bradford (1997) 14 Cal.4th 1005, 1055.) Accordingly, defendant has demonstrated no error in giving the jury instruction on flight.
Sentencing Errors
Defendant maintains, and the Attorney General agrees, that there were two sentencing errors, the first of which requires remand for resentencing under People v. Castaneda (1999) 75 Cal.App.4th 611, 613-615 (Castaneda).
In Castaneda, the court concluded "remand for resentencing was required due to imposition of an improper enhancement. The trial court resentenced the defendant to the same term as the original sentence by increasing the principal term to the upper term and staying the enhancement. . . . [T]his was proper so long as the new aggregate term did not exceed the original aggregate term." (Castaneda, supra, 75 Cal.App.4th at p. 614.) --------
First, defendant observes the Penal Code section 666.5 enhancement imposed for a prior violation of Vehicle Code section 10851 is inapplicable. Penal Code section 666.5 provides "[e]very person who, having been previously convicted of a felony violation of Section 10851 of the Vehicle Code . . . [and] is subsequently convicted of any of these offenses shall be punished by imprisonment . . . for two, three, or four years. . . ." (Pen. Code, § 666.5, subd. (a).) In this case, however, as the Attorney General acknowledges, while defendant had a prior conviction of violating Vehicle Code section 10851, his current conviction was only for an attempt to violate that section.
Secondly, defendant asserts the court violated Penal Code section 654 by imposing a concurrent one-year county jail term for his conviction of possession of burglar tools. The Attorney General agrees that sentence should be stayed. Penal Code section 654 provides in part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." (Pen. Code, § 654, subd. (a).) "Section 654 precludes multiple punishment for a single act or omission, or an indivisible course of conduct. [Citations.] If, for example, a defendant suffers two convictions, punishment for one of which is precluded by section 654, that section requires the sentence for one conviction to be imposed, and the other imposed and then stayed. [Citation.] Section 654 does not allow any multiple punishment, including either concurrent or consecutive sentences." (People v. Deloza (1998) 18 Cal.4th 585, 591-592.)
DISPOSITION
The matter is remanded for resentencing with instructions to strike the Penal Code section 666.5 enhancement and stay the sentence on count 3 (possession of burglar tools). In all other respects, the judgment is affirmed.
/s/_________
Banke, J. We concur: /s/_________
Humes, P.J. /s/_________
Dondero, J.