Opinion
D072859
10-10-2018
THE PEOPLE, Plaintiff and Respondent, v. DANIEL SORENSON, Defendant and Appellant.
Sandra Payne Hagood, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Craig H. Russell, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD272245) APPEAL from a judgment of the Superior Court of San Diego County, Runston G. Maino, Judge. Affirmed. Sandra Payne Hagood, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Craig H. Russell, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
A jury found Daniel Sorenson guilty of unlawfully driving a vehicle (Veh. Code, § 10851, subd. (a)) (count 1), and receiving a stolen vehicle (Pen. Code, § 496d) (count 2). After the jury returned its verdicts, Sorenson admitted having suffered three prison priors (§ 667.5, subd. (b)).
Unless otherwise specified, all subsequent statutory references are to the Penal Code.
The trial court sentenced Sorenson to a split sentence of five years, consisting of the mid-term of two years on count 1, and one year for each prison prior. The court ordered Sorenson to serve three years in county jail followed by two years of mandatory supervision. The trial court stayed the execution of sentence on count 2 pursuant section 654.
On appeal, Sorenson claims that the trial court erred in instructing the jury concerning the crime of unlawful driving (Veh. Code, § 10851, subd. (a)). We conclude that the trial court properly instructed the jury and affirm the judgment.
II.
FACTUAL BACKGROUND
On May 15, 2017, the victim drove his white Audi to a shopping plaza, parked the car, and went into a store. He left his keys and a backpack containing a laptop computer in the car. When the victim returned to the parking lot, his car was missing. He called the police and reported the car stolen.
Approximately two weeks later, Aaron Duggan noticed a white Audi, which was later determined to be the victim's, parked in a parking lot in a spot reserved for one of his employees. Duggan approached the vehicle and saw Sorenson in the driver's seat. Duggan told Sorenson that the spot was reserved, and that he could not park there. Sorenson moved the car to another nearby parking spot.
Duggan called police because he thought Sorenson was behaving strangely. According to Duggan, Sorenson seemed "fidgety" and "mentally, not all together there." Duggan told police that he thought that Sorenson had drug paraphernalia in the car and that he might be under the influence of narcotics.
A San Diego police officer responded to the call. Sorenson started the Audi as the officer approached. The officer told Sorenson to turn the engine off, and he complied. The officer ran the license plate on the Audi through a law enforcement database, and learned that the license plate was not registered as stolen. After performing a check of Sorenson's name in a law enforcement database, the officer determined that Sorenson was wanted on an outstanding warrant. The officer arrested Sorenson.
The officer continued his investigation and discovered that Sorenson was not the registered owner of the Audi, and that the vehicle's identification number (VIN) did not match the VIN associated with the license plate on the vehicle. The officer ran the VIN for the Audi and learned that it been reported stolen by the victim. The officer spoke to the victim, who informed him that the vehicle had been stolen and that no one, including Sorenson, had permission to drive it. The police impounded the Audi.
When the victim picked up the Audi the following day, he discovered that several modifications had been made to the outside of the vehicle, including the addition of racing stripes. The car also contained property that did not belong to the victim, including a large amount of clothing. The victim recovered his laptop from the Audi and discovered that the user name had been changed to " 'Danny Phatz.' " Several stolen license plates were found concealed in the wheel well of the Audi, one of which had been reported as stolen.
Roxanne Bishop, one of Duggan's coworkers, also saw a white Audi parked in one of the company's reserved spots "around . . . June 2." She saw a man tinting the driver's side back window.
III.
DISCUSSION
The trial court did not err in instructing the jury concerning the crime of unlawful driving
Sorenson claims that the trial court failed to instruct the jury with respect to all of the required elements of the offense of unlawful driving (Veh. Code, § 10851). Specifically, Sorensen claims that the trial court failed to instruct the jury concerning a purported element of the offense, namely, that he had "knowledge . . . that he ha[d] no lawful right to possess the car." (Italics added.)
We review de novo whether a jury instruction correctly states the law. (People v. Posey (2004) 32 Cal.4th 193, 218.) A. Governing law
Sorenson may raise this claim notwithstanding the lack of an objection in the trial court. (See, e.g, People v. Hudson (2006) 38 Cal.4th 1002, 1011-1012 [notwithstanding lack of objection in trial court, party may raise claim that court provided "an instruction that is an incorrect statement of the law"]; see also § 1259 ["[t]he 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"].)
Vehicle Code section 10851, subdivision (a) states in relevant part:
"(a) 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 . . . is guilty of a public offense . . . ."
" 'The elements necessary to establish a violation of section 10851 of the Vehicle Code are the defendant's driving or taking of a vehicle belonging to another person, without the owner's consent, and with specific intent to permanently or temporarily deprive the owner of title or possession. [Citations.]' " (People v. Green (1995) 34 Cal.App.4th 165, 180 (Green); People v. O'Dell (2007) 153 Cal.App.4th 1569, 1574; accord, De Mond v. Superior Court (1962) 57 Cal.2d 340, 344 ["The gist of the offense proscribed by Vehicle Code, section 10851, is the taking or driving of a vehicle without the owner's consent and with the specific intent to deprive the owner, permanently or temporarily, of title to or possession of that vehicle"].) B. The trial court's instruction
The trial court instructed the jury pursuant to a modified version of CALCRIM No. 1820, a standard instruction pertaining to Vehicle Code section 10851, subdivision (a), as follows:
"The defendant is charged in Count 1 with unlawfully driving a vehicle in violation of Vehicle Code section 10851.
"To prove that the defendant is guilty of this crime, the People must prove that, number one, the defendant drove someone else's vehicle without the owner's consent; and, number two, when the defendant did so, he intended to deprive the owner of possession or ownership of the vehicle for any period of time."C. Application
The trial court instructed the jury pursuant to a standard instruction that tracked both the language of the statute (Veh. Code, § 10851, subd. (a)) as well as established case law outlining the elements of the offense. (See, e.g. Green, supra, 34 Cal.App.4th at p. 180 [specifying that the elements of unlawful driving (Veh. Code, § 10851, subd. (a)) are the " 'defendant's driving or taking of a vehicle belonging to another person, without the owner's consent, and with specific intent to permanently or temporarily deprive the owner of title or possession' "].)
Sorenson contends that the trial court's instruction was erroneous because "unlawful driving requires knowledge that the defendant has no lawful right to possess the car, but the jury was never informed of this guilty knowledge element." (Italics added.) In support of this argument, Sorenson cites Green, supra, 34 Cal.App.4th at pages 179-180. As noted above, the Green court expressly listed the " 'elements necessary to establish a violation of section 10851 of the Vehicle Code.' " (Id. at p. 180.) A defendant's knowledge that he had no lawful right to possess the car is not among the elements of the offense listed by the Green court.
In Green, in the course of discussing the circumstances under which a defendant may be found guilty of violating Vehicle Code section 10851, the Green court stated:
"We believe the Legislature intended that the language of [Vehicle Code] section 10851(a) relating to driving is to be applied under circumstances where: (1) the person either obtains lawful possession of the vehicle and thereafter forms the specific intent to deprive the owner of possession; or, (2) obtains the vehicle under circumstances which indicate the perpetrator has knowledge, absent his or her actual taking of the vehicle, that the use or operation of the vehicle is depriving the owner of possession of the vehicle." (Green, supra, 34 Cal.App.4th at pp. 179-180, italics added.)
Sorenson cites the italicized language as supporting the contention that knowledge is an element of unlawful driving. We disagree. We read this portion of Green as outlining two circumstances under which section 10851 might be violated, not as outlining the elements of the statute. This reading is supported by the fact that, as noted above, elsewhere in its opinion, the Green court expressly outlined the elements of the offense, and stated that, in order to be guilty of the offense, a defendant must have the " 'specific intent to permanently or temporarily deprive the owner of title or possession.' " (Green, supra, 34 Cal.App.4th at pp. 179-180.)
Further, the requirement that a defendant intend to deprive the owner of title or possession is a more culpable mental state than a defendant's mere knowledge that he is depriving the owner of possession. (See U.S. v. Nguyen (5th Cir. 2007) 493 F.3d 613, 624 [stating "[t]he government needed to prove that the [defendants] knew of their conduct's possible illegality but also that they specifically intended to commit the illegal acts to further its unlawful purpose," and explaining "[t]he specific intent element of the offense is a slightly more culpable state of mind compared to the knowledge element" (italics added)].) Thus, we are not persuaded by Sorenson's rhetorical argument, "[H]ow can a defendant specifically intend to deprive an owner of possession if [he] does not know that he is doing so?" (Boldface omitted.) The fact that a defendant who specifically intends to deprive the owner of possession of a vehicle will ordinarily have knowledge that he is depriving the owner of the possession, does not make knowledge an element of the offense.
We also reject Sorenson's argument that the failure to instruct the jury that it must find that he had knowledge that his possession was depriving the owner of possession would "describe a general intent crime in which the intent to do the proscribed act is sufficient for conviction." On the contrary, as explained above, the jury was instructed that it had to find that Sorenson acted with the intent to deprive the owner of title or possession, and thereby specified the requisite specific intent.
Sorenson also argues that the trial court's instruction "would have left the jury with the impression that mere conscious possession without permission would be sufficient to convict Mr. Sorenson of unlawful driving." We reject this argument because the trial court's instruction specifically required that the jury find that Sorenson "intended to deprive the owner of possession" in order to find him guilty of the charged offense. Thus, contrary to Sorenson's contention, the jury could not have found him guilty merely upon finding that Sorenson knew that he had possession of the car and that he had not been given permission by the owner to possess the car. Rather, the jury had to find that Sorenson acted with the specific intent to deprive the owner of possession[ ]the requisite intent as specified in the statute and the case law.
Sorenson also argues in his reply brief, "[T]he jury instructions did not inform the jury that to convict Mr. Sorenson of unlawful driving, the jury must find that he specifically intended to deprive the owner of possession of the car." We reject this argument because the jury instruction that the court gave required the jury to make just such a finding. As noted above, the court instructed the jury that, in order to find Sorenson guilty of the charged crime, it must find that he "intended to deprive the owner of possession or ownership of the vehicle."
Accordingly, we conclude that the trial court did not err in instructing the jury concerning the crime of unlawful driving (Veh. Code, § 10851).
In light of our conclusion that the trial court did not err in manner by which it instructed the jury, we need not consider any of the parties' arguments pertaining to prejudice. Specifically, in light of our conclusion that the trial court did not commit any instructional error, we need not consider Sorenson's claim that the prosecutor's allegedly improper closing argument "hopelessly compounded the error." (Italics added; boldface & capitalization omitted.)
To the extent that Sorenson intends to raise a distinct claim of prosecutorial misconduct, we reject any such claim. Sorenson's trial counsel did not object to any of the purportedly improper argument that he references in his brief, nor did counsel request a curative admonition, and Sorenson has not argued that an admonition would have been insufficient to have cured any purported error. Thus, to the extent that Sorenson intends to raise a prosecutorial misconduct argument on appeal, we conclude that any such argument was forfeited. (See, e.g., People v. Stanley (2006) 39 Cal.4th 913, 959 ["Because there was no objection or request for a curative admonition, this claim of prosecutorial misconduct is waived on appeal"].)
IV.
DISPOSITION
The judgment is affirmed.
AARON, J. WE CONCUR: BENKE, Acting P. J. HUFFMAN, J.