Opinion
F072642
08-10-2018
THE PEOPLE, Plaintiff and Respondent, v. WILLIAM DERRELL WATKINS, Defendant and Appellant.
George J. Vasquez, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and John A. Bachman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. VCF319169 & PRCS001386)
OPINION
APPEAL from a judgment of the Superior Court of Tulare County. Joseph A. Kalashian, Judge. (Retired Judge of the Tulare Super. Ct. assigned by the Chief Justice pursuant to article VI, § 6 of the Cal. Const.) George J. Vasquez, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and John A. Bachman, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
The victim in this case had her vehicle towed to an auto repair shop after it broke down. Family members discovered the vehicle missing from the shop's parking lot the next morning and, shortly thereafter, witnesses saw defendant William Derrell Watkins driving it. Following a trial by jury, defendant was convicted of taking or driving a vehicle, in violation of Vehicle Code section 10851, subdivision (a) (count 1) and receiving or possessing stolen property, in violation of Penal Code section 496d, subdivision (a) (count 2). In accordance with section 666.5, subdivision (a), the trial court sentenced defendant on count 1 to the middle term of three years, doubled to six years for his prior conviction within the meaning of the Three Strikes law. On count 2, the trial court also sentenced defendant to the middle term of three years, doubled for the prior strike conviction and stayed pursuant to section 654.
All further statutory references are to the Penal Code.
Vehicle Code section 10851, subdivision (a), proscribes driving or taking, temporarily or permanently, a vehicle without the owner's consent. (People v. Page (2017) 3 Cal.5th 1175, 1182-1183 (Page).) In this case, the jury did not expressly determine on what basis defendant violated Vehicle Code section 10851, subdivision (a). On appeal, defendant argues that because taking the vehicle and driving the vehicle constituted one continuous course of action, his conviction is for taking the vehicle and, therefore, his dual convictions for taking and for receiving the same property are barred as a matter of law. He also argues that the trial court erred in failing to instruct the jury it could not convict him of taking and receiving the same property. In addition, defendant argues that because the prosecutor failed to prove the value of the stolen vehicle, he is entitled under Proposition 47 to have both felony convictions reduced to misdemeanors. Finally, defendant argues that the trial court erred in admitting evidence of his homelessness, resulting in prejudice to him.
We directed the parties to file supplemental letter briefs in light of the California Supreme Court's recent decision, Page, supra, 3 Cal.5th 1175. (Gov. Code, § 68081.)
The People dispute defendant's entitlement to any relief. They concede the trial court erred in instructing the jury, but they contend that the error was harmless and because defendant's conviction may be construed under the law as based on posttheft driving, his conviction for receiving the same stolen vehicle is not barred. Relatedly, the People concede that under Page, Proposition 47 applies to convictions under Vehicle Code section 10851 for taking a vehicle with the intent to permanently deprive the owner of title or possession (vehicle theft), but they contend the measure does not afford relief to convictions for posttheft driving. They also contend that Proposition 47 does not apply to convictions for receiving stolen property under section 496d. Finally, they contend the trial court did not err in admitting evidence of defendant's homelessness, but any error was harmless.
We agree with the parties that the trial court erred in failing to instruct the jury that it could not convict defendant of both taking and receiving the same property. However, as we shall explain, the evidence in this case permits us to construe defendant's conviction under Vehicle Code section 10851 as a conviction for posttheft driving, as the People contend. (People v. Garza (2005) 35 Cal.4th 866, 871-872 (Garza); People v. Calistro (2017) 12 Cal.App.5th 387, 404-405 (Calistro).) Therefore, we reject defendant's claims that his dual convictions are barred as a matter of law and that the instructional error was prejudicial. Our determination that defendant's conviction for violating Vehicle Code section 10851 is construable as a posttheft driving conviction renders his claim that he is entitled to relief under Proposition 47 moot (Page, supra, 3 Cal.5th at p. 1183), and we reject his claim that Proposition 47 affords relief for convictions for receiving stolen property under section 496d (People v. Varner (2016) 3 Cal.App.5th 360, 367 (Varner)). Finally, we conclude the court did not err in admitting evidence of defendant's homelessness but, even if we assume error, it was not prejudicial. We therefore affirm the judgment.
FACTUAL SUMMARY
During a shopping trip, the victim's vehicle failed to start and she had it towed to an auto repair shop. The next morning, around 7:00 a.m., the victim's daughter and son-in-law drove to the shop to drop off a spare key. The shop was not yet open and the victim's family members did not see the vehicle anywhere. Approximately 15 minutes later while waiting for a return call from the towing company, the couple saw defendant pull into the shop's parking lot and drive behind the building. By the time the couple was able to follow the vehicle behind the shop, it was no longer in sight. They called the police and reported the vehicle stolen.
Shortly after 8:00 a.m., an employee at the repair shop saw defendant pull the vehicle into the driveway, pull back out again and drive away. Approximately 10 minutes later, he saw defendant return and park the vehicle behind the shop across the driveway. The doors were left open and the stereo was blasting.
Around 9:00 a.m., Detective Whaley with the Visalia Police Department responded to the shop. He saw the vehicle parked, with the engine running and the stereo on, but no one in it. Another officer had informed Whaley that "the subject was possibly staying behind the business" in a homeless encampment. When Whaley arrived at the scene, he saw defendant and two other people standing nearby on the other side of a chainlink fence from the vehicle. The fence had a cut in it.
The victim's vehicle was not damaged and nothing was missing. Defendant admitted driving the vehicle and said he had returned to the area to pick up his girlfriend to run errands. He denied stealing the vehicle, however. During the booking process, defendant told Whaley the vehicle belonged to a friend's sister and he had rented it until 2:00 p.m. for $20. He subsequently said an individual named Justin Stafford came by his tent at 5:30 or 6:00 that morning. Stafford was sick and needed money so he asked defendant if he wanted to use the vehicle until 2:00 p.m. for $20. Detective Whaley attempted to locate an individual named Justin Stafford through a records check, but was not successful.
DISCUSSION
I. Dual Convictions for Taking or Driving Vehicle and Receiving Same Vehicle
A. Background
It has long been established that a defendant may not stand convicted of both stealing and receiving the same property. (People v. Ceja (2010) 49 Cal.4th 1, 4-5; Garza, supra, 35 Cal.4th at p. 871; see People v. Jaramillo (1976) 16 Cal.3d 752, 758-759 (Jaramillo).) This rule of common law, codified in some statutes although not in section 496d (Garza, supra, at p. 874; § 496, subd. (a)), derives from "the notion that it is 'logically impossible for a thief who has stolen an item of property to buy or receive that property from himself'" (People v. Ceja, supra, at pp. 4-5, quoting People v. Allen (1999) 21 Cal.4th 846, 854). If a defendant is erroneously convicted of taking and receiving the same property, the practice is to reverse the receiving conviction. (People v. Ceja, supra, at pp. 9-10 & fn. 9.)
Vehicle Code section 10851, however, "sweep[s] more broadly than 'theft,' as the term is traditionally understood. [The statute] punishes not only taking a vehicle, but also driving it without the owner's consent, 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.'" (Page, supra, 3 Cal.5th at p. 1182, quoting Veh. Code, § 10851, subd. (a), italics omitted.) Thus, relevant to defendant's first claim, the statute criminalizes both taking and driving a vehicle without consent.
Vehicle Code section 10851, subdivision (a), provides in full: "(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, 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 and, upon conviction thereof, shall be punished by imprisonment in a county jail for not more than one year or pursuant to subdivision (h) of Section 1170 of the Penal Code or by a fine of not more than five thousand dollars ($5,000), or by both the fine and imprisonment."
Defendant argues the evidence shows he drove the vehicle away from the repair shop and then back again, which constituted one continuous journey of approximately an hour. Because dual convictions for stealing and receiving the same property are barred as a matter of law, defendant reasons he is entitled to reversal of his convictions. He also argues the trial court erred in failing to instruct the jury that it could not convict him of both taking and receiving the same stolen property, and the error was prejudicial because it is reasonably probable that a properly instructed jury would not have convicted him of both taking and receiving the same property.
As previously noted, the California Supreme Court determined in People v. Ceja, supra, 49 Cal.4th at pages 9-11 that, in such situations, the conviction for receiving stolen property is reversed.
The People disagree that defendant's dual convictions are barred as a matter of law, because the bar does not apply to a conviction for posttheft driving and the evidence supports a finding defendant was engaged in posttheft driving. They concede the trial court erred in failing to instruct the jury that it could not convict defendant of both taking and receiving the same property. They contend, however, that the error was harmless because it is not reasonably probable a properly instructed jury would have concluded defendant was guilty of taking but not driving the vehicle. For the reasons that follow, we agree.
B. Analysis
1. Instructional Error Occurred
As discussed, post, we reject defendant's argument that his act of driving the vehicle was necessarily part of the taking and, therefore, his dual convictions for taking and receiving the same stolen property are prohibited as a matter of law. However, we agree with the parties that the trial court committed instructional error.
In People v. Ceja, the California Supreme Court addressed the trial court's instructional duty as to the prohibition against dual convictions for stealing and receiving the same property. (People v. Ceja, supra, 49 Cal.4th at p. 10.) The court held that "juries should be instructed to reach a verdict on the theft charge first when the defendant is also charged with receiving the stolen property. A guilty verdict on the theft charge makes it unnecessary to consider the receiving charge. This practice ... ensure[s] that the statutory ban against dual convictions is applied." (Ibid.) In this case, the trial court erred when it failed to instruct the jury it could not convict defendant of both taking and receiving the victim's vehicle. (Garza, supra, 35 Cal.4th at p. 881.) The issue then is whether the error was prejudicial.
The pattern instruction addressing the prohibition on dual convictions for taking and receiving the same property is CALCRIM No. 3516. We are unable to determine from the record why the instruction was not given in this case.
2. Error Harmless
As the high court counseled in Garza, "we begin with the presumption that [the] defendant's dual convictions—for unlawful taking or driving under [Vehicle Code] section 10851[, subdivision ](a) and for receiving stolen property under [Penal Code] section 496[, subdivision ](a)—are valid; we will set aside either or both of the convictions only if [the] defendant has affirmatively shown prejudicial error amounting to a miscarriage of justice." (Garza, supra, 35 Cal.4th at p. 881.) "To determine whether this error caused prejudice to [the] defendant amounting to a miscarriage of justice, we ask whether it is reasonably probable that a properly instructed jury would have reached a result more favorable to [the] defendant by not convicting him of violating both [Vehicle Code] section 10851[, subdivision ](a) and [Penal Code] section 496[, subdivision ](a)." (Id. at pp. 881-882, citing People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).) Under Watson, the harmless error test "'focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration. In making that evaluation, an appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result.'" (People v. Beltran (2013) 56 Cal.4th 935, 956.)
Section 496 criminalizes buying or receiving stolen property. Section 496d, under which defendant was convicted, criminalizes, in relevant part, buying or receiving stolen vehicles.
The evidence that defendant drove the stolen vehicle was uncontroverted: multiple eyewitnesses testified they saw him driving the vehicle on two separate occasions and he admitted driving it. There was no direct evidence defendant took the vehicle, however, and he denied taking it.
Defendant's argument that his dual convictions cannot stand as a matter of law depends on acceptance of his position that the driving he engaged in was not legally separable from the taking. However, we reject his contention that the evidence established, as a matter of law, a continuous course of conduct compelling the conclusion that defendant's act was a taking under the statute. Consideration of the facts in this case leads us to conclude instead that the trial court's failure to instruct the jury it could not convict defendant of both taking and receiving the vehicle was harmless error.
In evaluating the propriety of dual convictions, the relevant inquiry "is whether the driving was part of the theft, or an independent crime. If the evidence showed only one continuous violation of [Vehicle Code] section 10851, in which the driving was part and parcel of the taking, then a conviction for driving or taking under [Vehicle Code] section 10851 is a conviction for 'theft of the same property' which bars conviction under [Penal Code] section 496. If, however, the evidence showed two distinct violations of [Vehicle Code] section 10851—one taking, and one separately chargeable driving—then a conviction based on the unlawful driving is not a conviction for 'theft of the same property' and does not bar a conviction for receiving the same vehicle ...." (People v. Strong (1994) 30 Cal.App.4th 366, 373-374 (Strong); accord, Garza, supra, 35 Cal.4th at pp. 880-881; Calistro, supra, 12 Cal.App.5th at pp. 403-404; People v. Cratty (1999) 77 Cal.App.4th 98, 102-103 (Cratty).)
"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 pp. 1188-1189, quoting People v. Kehoe, supra, 33 Cal.2d at p. 715.) Over the years, courts have articulated different guidelines for determining what constitutes a sufficient break between the taking and the driving to permit dual convictions. As this court recently summarized in Calistro, supra, 12 Cal.App.5th at page 395, "The theft of the vehicle may be considered complete when the driving is not 'part of the original taking' ([Strong, supra,] 30 Cal.App.4th [at pp.] 375-376]); when the driving is 'an act distinct from the taking' ([Cratty, supra,] 77 Cal.App.4th [at p.] 103]); when the driving is 'for purposes unconnected with the original taking' (People v. Malamut (1971) 16 Cal.App.3d 237, 242); 'when the driving is no longer part of a "'continuous journey away from the locus of the theft'"' (Garza, [supra, 35 Cal.4th] at p. 880); or when the driving is not part of the escape from the scene of the theft (see People v. Carroll (1970) 1 Cal.3d 581, 585). 'One might also suggest that the taking is complete when the taker reaches a place of temporary safety. [Citation.] Whatever the precise demarcation point may be ..., once a person who has stolen a car has passed that point, further driving of the vehicle is a separate violation of [Vehicle Code] section 10851[, subdivision ](a) that is properly regarded as a nontheft offense ....' (Garza, at pp. 880-881.)"
In People v. Kehoe, the defendant was charged with grand theft and driving a vehicle without the owner's permission. (People v. Kehoe (1949) 33 Cal.2d 711, 711-712.) The crimes charged were committed in Humboldt County, but the defendant was arrested after driving the car 400 miles south to Monterey County and there was no direct evidence of the taking or the driving in Humboldt County. (Id. at p. 712.) As such, while the court spoke of the necessity of a "substantial break" between the taking and the driving in Humboldt County, it had no occasion in that case to define the phrase further. (Id. at p. 715.)
Our decision in Calistro is instructive. In that case, the victim's car was stolen from outside his apartment. (Calistro, supra, 12 Cal.App.5th at p. 391.) Five hours later and fewer than five miles away, an officer located the car parked near a gas pump at a 7-Eleven store. (Id. at p. 392.) The defendant was sitting inside the car, in the driver's seat, and a shaved car key was in the ignition. (Ibid.) We concluded that "little evidence supported the inference that defendant took the car, even though the jurors may have believed that he did. But evidence that he drove the car was overwhelming." (Id. at p. 402.)
In Calistro, the trial court erred in instructing the jurors "that (1) they could convict defendant under Vehicle Code section 10851[, subdivision ](a) if they found he either took or drove the car unlawfully (a correct statement of law), and (2) if they convicted him under Vehicle Code section 10851[, subdivision ](a) for either taking or driving the car, they could not convict him for receiving the stolen car under section 496d[, subdivision ](a) (an incorrect statement of law)." (Calistro, supra, 12 Cal.App.5th at p. 402.) Relying on Garza, Cratty and Strong, this court concluded the error was harmless and the evidence permitted the defendant's taking or driving conviction to be construed as a driving conviction. (Calistro, supra, at pp. 403-405.)
Further, we concluded that "the evidence overwhelmingly supported the conclusion that even if [the] defendant was in fact the car thief, his driving of the car was an act separate and distinct from its taking. He had long since left the locus of the theft, was no longer in the process of escape, and now felt sufficiently removed from the crime that he could stop for gas and linger in the stolen car at the 7-Eleven. Nothing suggested he was still in the process of taking the car or fleeing the scene of the crime. Five hours had passed since the car was stolen, and [the] defendant was at the 7-Eleven less than five miles from the scene of the theft, a journey that should have taken only a matter of minutes had he driven there directly. There was no evidence to suggest he had spent five hours fleeing the scene and seeking a place of safety, only to finally stop for gas a few miles away. On the contrary, he told Officer Beltran he had been driving the car for a few hours and had stopped because he needed gas, suggesting he was simply joyriding, not fleeing the scene of the theft. Moreover, he appeared to be in no hurry to leave the 7-Eleven or avoid detection. [¶] In light of this overwhelming evidence of [the] defendant's posttheft driving, even if every juror believed that [the] defendant both took the car and drove it after the theft was complete, no reasonable juror could have found that he took the car but did not drive it after the theft was complete. [Citation.] Thus, the jury necessarily found that [the] defendant drove the car in an act that was distinct from and independent of the taking of the car. This act constituted a separate offense for which [the] defendant could be separately convicted. [Citation.] Even if there had been substantial evidence that [the] defendant took the car, such that the 'evidence was consistent either with driving, or with taking and driving,' 'no reasonable juror could have found taking alone.'" (Calistro, supra, 12 Cal.App.5th at p. 403.)
In this case, the prosecutor theorized that defendant both stole and drove the vehicle, but there was no direct evidence defendant took the vehicle. At the time the victim's daughter and son-in-law arrived at the repair shop, the vehicle, which had been left in the parking lot the previous day, was already missing. Approximately 15 minutes later, as they were waiting for the towing company to return their phone call, they saw defendant drive the vehicle back into the parking lot. Defendant returned a second time approximately 45 minutes later.
We do not agree with defendant's view of the evidence as establishing that the theft of the vehicle was incomplete when he was seen driving the car. To the contrary, under any of the standards we summarized in Calistro, the evidence demonstrated a completed theft. The facts adduced at trial do not support a reasonable inference that defendant was still in the process of taking the vehicle or fleeing the scene when he was first seen driving. (See Calistro, supra, 12 Cal.App.5th at pp. 394-395.) While this case is unusual in that defendant was camping adjacent to the locus of the theft and returned to the encampment in the vehicle, he was nevertheless returning rather than "'driving [as] ... part of a "'continuous journey away from the locus of the theft'"' [citation] ...." (Id. at p. 395.) The jury may have concluded that defendant took the vehicle considering he was driving it and was staying in an encampment in close proximity to the repair shop, but others in the encampment also had access to the vehicle and the vehicle had been in the parking lot since the previous day. Given the absence of any direct evidence defendant took the vehicle, but the uncontroverted evidence that he returned to the area driving the vehicle not once but twice, we conclude that no reasonable juror could have concluded that defendant took the vehicle, but did not drive it.
We recognize that a number of cases involved a break of days, months or years between the theft and the driving. (E.g., Garza, supra, 35 Cal.4th at p. 872 [six days between theft and recovery of vehicle]; Cratty, supra, 77 Cal.App.4th at pp. 99-100 [eight months between theft and recovery of vehicle]; Strong, supra, 30 Cal.App.4th at p. 375 [four days between theft and recovery of vehicle]; People v. Malamut, supra, 16 Cal.App.3d at pp. 241-242 [two months between theft and recovery of vehicle]; People v. Cuevas (1936) 18 Cal.App.2d 151, 152 [four years between theft and recovery of vehicle].) Calistro, however, involved a temporal break of only five hours, approximately (Calistro, supra, 12 Cal.App.5th at p. 392) and, in this case, the vehicle was taken sometime between the time the towing company dropped it off the day before and the victim's family's arrival at 7:00 a.m. Moreover, the standards articulated by courts in determining when a theft is completed do not demand a temporal break of specific measure. (See Garza, supra, at pp. 880-881.)
Although there was no evidence on the issue, the prosecutor assumed during closing argument that the tow truck driver left the vehicle unlocked with the key inside.
During oral argument, defendant's counsel pointed to testimony that witnesses saw defendant driving away in the vehicle as evidence of the vehicle theft. As discussed herein, however, the evidence showed that the towing company left the victim's vehicle at the shop the previous day. The next morning, the vehicle was not there when the victim's daughter and son-in-law arrived. Approximately 15 minutes after their arrival, they witnessed defendant driving the vehicle into the shop's parking lot and then behind the shop. We do not agree this evidence is reasonably consistent with the witnesses having seen the initial theft or flight from the parking lot. To the contrary, it is consistent only with a return trip in the vehicle; that is, posttheft driving.
The California Supreme Court has determined where "it is not reasonably probable that a properly instructed jury would have found [the] defendant guilty of violating [Vehicle Code] section 10851[, subdivision ](a) by stealing the car but not by posttheft driving," it is permissible to "uphold both convictions by construing [the] defendant's conviction under [Vehicle Code] section 10851[, subdivision ](a) as a nontheft conviction for posttheft driving." (Garza, supra, 35 Cal.4th at p. 882, fn. omitted; accord, Calistro, supra, 12 Cal.App.5th at p. 404; Cratty, supra, 77 Cal.App.4th at p. 103.) Accordingly, in light of the evidence, we construe defendant's conviction as one for posttheft driving and reject his claim that he was improperly convicted of both taking and receiving the same property.
We note that in Jaramillo, the California Supreme Court reversed the defendant's convictions for taking or driving a vehicle (Veh. Code, § 10851) and receiving stolen property (§ 496, former subd. (1)) where the record did not disclose the jury's specific findings and it may have found he intended to steal the vehicle. (Jaramillo, supra, 16 Cal.3d at p. 759.) However, Jaramillo preceded the decision in Garza. In Cratty, the Court of Appeal distinguished Jaramillo based on the absence in that case of any direct evidence the defendant took or drove the stolen vehicle. (Cratty, supra, 77 Cal.App.4th at p. 101, citing Jaramillo, supra, at pp. 757-758.) Subsequently, in Garza, the California Supreme Court approved of the reasoning in Strong and Cratty and stated, "Although this court used a somewhat different harmless error analysis in Jaramillo, supra, [at page 129], that case is distinguishable because it was decided before the Legislature's 1992 amendment of section 496[, subdivision ](a) codifying the narrow form of the common law prohibition against dual convictions for stealing and receiving the same property, and our reasoning there may have been influenced by the then-prevailing uncertainty about the scope of the common law prohibition." (Garza, supra, 35 Cal.4th at p. 882.)
II. Entitlement to Reduction of Felonies to Misdemeanors Under Proposition 47
A. Summary of Proposition 47
"Proposition 47 was passed by voters at the November 4, 2014, General Election, and took effect the following day. The measure's stated purpose was 'to ensure that prison spending is focused on violent and serious offenses, to maximize alternatives for nonserious, nonviolent crime, and to invest the savings generated from this act into prevention and support programs in K-12 schools, victim services, and mental health and drug treatment,' while also ensuring 'that sentences for people convicted of dangerous crimes like rape, murder, and child molestation are not changed.' (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 2, p. 70 (Voter Information Guide).) To these ends, Proposition 47 redefined several common theft- and drug-related felonies as either misdemeanors or felonies, depending on the offender's criminal history. The redefined offenses include: shoplifting of property worth $950 or less (Pen. Code, § 459.5, subd. (a)); forgery of instruments worth $950 or less (Pen. Code, § 473, subd. (b)); fraud involving financial instruments worth $950 or less (Pen. Code, § 476a, subd. (b)); theft of, or receiving, property worth $950 or less (Pen. Code, §§ 490.2, subd. (a), 496, subd. (a)); petty theft with a prior theft-related conviction (Pen. Code, § 666, subd. (a)); and possession of a controlled substance (Health & Saf. Code, §§ 11350, subd. (a), 11377, subd. (a))." (People v. DeHoyos (2018) 4 Cal.5th 594, 597-598; accord, People v. Martinez (2018) 4 Cal.5th 647, 651-652 (Martinez).)
Proposition 47 provided for prospective changes to the law and for retrospective relief in the form of a petitioning process for those convicted and serving final sentences, or those who completed their sentences, prior to the measure's passage. (§ 1170.18, subds. (a), (f); People v. DeHoyos, supra, 4 Cal.5th at pp. 597-598; Martinez, supra, 4 Cal.5th at p. 651.) The crimes in this case were committed after Proposition 47 was enacted and, therefore, we are concerned here with the prospective changes effected by the law. (People v. Gutierrez (2018) 20 Cal.App.5th 847, 855.)
There is no dispute that the prosecutor did not introduce any evidence of the stolen vehicle's value. Defendant claims he was convicted of taking the vehicle and, in the absence of any evidence the vehicle was valued at more than $950, he is entitled to have his felony conviction reduced to a misdemeanor under Proposition 47. The People initially disputed that Proposition 47 applies to convictions under Vehicle Code section 10851 but, after briefing was completed, the California Supreme Court held that if a conviction under Vehicle Code section 10851 is for vehicle theft as opposed to a temporary taking or posttheft driving, Proposition 47 applies. (Page, supra, 3 Cal.5th at pp. 1183-1184.) In this case, however, we have determined that defendant was convicted of posttheft driving; as defendant was not convicted of vehicle theft, he is not entitled to relief under Proposition 47 and we reject his contrary claim. (Page, supra, at pp. 1183-1184.)
C. Section 496d—Receiving Stolen Vehicle
1. Inclusion of Section 496d Through Language in Section 490.2
a. Background
Turning to defendant's conviction under section 496d, Proposition 47 expressly amended section 496, subdivision (a), which criminalizes buying or receiving stolen property, but did not expressly amend section 496d, which more specifically criminalizes buying or receiving stolen motor vehicles, trailers, construction equipment or vessels. Proposition 47 also added section 490.2, subdivision (a), which provides that "[n]otwithstanding Section 487 or any other provision of law defining grand theft, obtaining any property by theft where the value of the money, labor, real or personal property taken does not exceed nine hundred fifty dollars ($950) shall be considered petty theft and shall be punished as a misdemeanor, except that such person may instead be punished pursuant to subdivision (h) of Section 1170 if that person has one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290."
Section 496, subdivision (a), provides: "Every person who buys or receives any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any property from the owner, knowing the property to be so stolen or obtained, shall be punished by imprisonment in a county jail for not more than one year, or imprisonment pursuant to subdivision (h) of Section 1170. However, if the value of the property does not exceed nine hundred fifty dollars ($950), the offense shall be a misdemeanor, punishable only by imprisonment in a county jail not exceeding one year, if such person has no prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290. [¶] A principal in the actual theft of the property may be convicted pursuant to this section. However, no person may be convicted both pursuant to this section and of the theft of the same property." (Italics added.)
Section 496d, subdivision (a), provides: "Every person who buys or receives any motor vehicle, as defined in Section 415 of the Vehicle Code, any trailer, as defined in Section 630 of the Vehicle Code, any special construction equipment, as defined in Section 565 of the Vehicle Code, or any vessel, as defined in Section 21 of the Harbors and Navigation Code, that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any motor vehicle, trailer, special construction equipment, or vessel from the owner, knowing the property to be so stolen or obtained, shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 for 16 months or two or three years or a fine of not more than ten thousand dollars ($10,000), or both, or by imprisonment in a county jail not to exceed one year or a fine of not more than one thousand dollars ($1,000), or both." (Italics added.)
Defendant contends that notwithstanding the lack of express amendment to section 496d, Proposition 47 covers convictions under section 496d by virtue of the plain language in section 490.2 referring to "obtaining any property by theft ...." (§ 490.2, subd. (a).) He also contends that voters intended to limit the prosecution of nonviolent thefts of property valued at $950 or less and treat those crimes as misdemeanors and, through poor drafting, may have inadvertently failed to expressly include or amend section 496d.
The People counter that this argument was considered and rejected by the Court of Appeal in Varner, supra, 3 Cal.App.5th 360 and defendant has not advanced any persuasive argument for departing from the reasoning in Varner. We agree with the People and further observe that this determination is supported by the reasoning underlying the decisions in Page and Romanowski, and is in accordance with the recent decisions in People v. Bussey (2018) 24 Cal.App.5th 1056, 1063 and People v. Orozco (2018) 24 Cal.App.5th 667, 674, both of which also rejected the argument that convictions under section 496d are not eligible for relief pursuant to Proposition 47.
The California Supreme Court granted review in Varner on November 22, 2016, in case No. S237679. The matter was dismissed on August 9, 2017, following the court's decision in People v. Romanowski (2017) 2 Cal.5th 903 (Romanowski).
b. Section 496d Not Covered by Proposition 47
The interpretation of a voter initiative relies on "the same principles governing statutory construction. We first consider the initiative's language, giving the words their ordinary meaning and construing this language in the context of the statute and initiative as a whole. If the language is not ambiguous, we presume the voters intended the meaning apparent from that language, and we may not add to the statute or rewrite it to conform to some assumed intent not apparent from that language. If the language is ambiguous, courts may consider ballot summaries and arguments in determining the voters' intent and understanding of a ballot measure." (People v. Superior Court (Pearson) (2010) 48 Cal.4th 564, 571 (Pearson); accord, People v. Valencia (2017) 3 Cal.5th 347, 357; People v. Bunyard (2017) 9 Cal.App.5th 1237, 1243.) "[V]oters who approve an initiative are [generally] presumed to '"have voted intelligently upon an amendment to their organic law, the whole text of which was supplied [to] each of them prior to the election and which they must be assumed to have duly considered ...."'" (People v. Valencia, supra, at p. 369.) We also generally presume "voters, in adopting an initiative, did so being 'aware of existing laws at the time the initiative was enacted.'" (People v. Valencia, supra, at p. 369; accord, People v. Adelmann, supra, 4 Cal.5th at p. 1080; Martinez, supra, 4 Cal.5th at p. 653; People v. Bunyard, supra, at p. 1243.)
As discussed in People v. Valencia, supra, 3 Cal.5th at page 369, these presumptions generally apply to the initiative process. The court has declined to apply them in some instances, as when it determines it would be unreasonable to do so given an initiative's complexity or where it would require attribution of an unreasonable level of awareness on the part of voters. (Id. at pp. 369-373.) Echoing this concern, in People v. Adelmann (2018) 4 Cal.5th 1071, 1080, the California Supreme Court recently reiterated that "[i]t is ... true that the electorate is presumptively aware of existing laws and their construction," but cautioned that "it should also be remembered that '[t]he particularized meaning of words in complex, legislatively enacted statutes has little bearing on the interpretation of words in an initiative, which we construe according to their ordinary meanings as understood by "the average voter."'"
In Varner, the Court of Appeal considered whether Proposition 47 afforded relief to those convicted under section 496d. (Varner, supra, 3 Cal.App.5th at pp. 364-365.) In concluding that it does not, the court explained in part that the addition of section 490.2 did not suggest the voters intended to include section 496d because "[s]ection 490.2 ... provides a definition of petty theft that affects the definition of grand theft in section 487 and other provisions." (Varner, supra, at p. 367; accord, Page, supra, 3 Cal.5th at p. 1183; Romanowski, supra, 2 Cal.5th at p. 908.) Defendant does not contend otherwise here, but baldly asserts that "'obtaining any property by theft'" includes receiving stolen property. This argument overlooks the plain language of section 490.2, defining petty theft. (Page, supra, at p. 1183 [section 490.2 is a petty theft provision]; Romanowski, supra, at p. 908 ["What section 490.2 indicates is that after the passage of Proposition 47, 'obtaining any property by theft' constitutes petty theft if the stolen property is worth less than $950."].) It also overlooks the fact that theft is specifically defined under the law. (§ 484; Page, supra, at p. 1182; see People v. Gonzales (2017) 2 Cal.5th 858, 864-866.)
The crime of receiving stolen property has three elements: "(1) the property was stolen; (2) the defendant knew the property was stolen ...; and, (3) the defendant had possession of the stolen property." (People v. Russell (2006) 144 Cal.App.4th 1415, 1425, disapproved on another ground in People v. Covarrubias (2016) 1 Cal.5th 838, 874, fn. 14.) Although the crime requires knowledge that the property bought or received was stolen, theft under California law is an unlawful taking. (Page, supra, 3 Cal.5th at p. 1182; People v. Gonzales, supra, 2 Cal.5th at pp. 864-865.) While receiving stolen property might be fairly described as a theft-related crime, and we note that it is included in the larceny chapter of the Penal Code (see Romanowski, supra, 2 Cal.5th at p. 908; People v. Sanders (2018) 22 Cal.App.5th 397, 404), it is not, by definition, a theft (Page, supra, at p. 1182; People v. Gonzales, supra, at pp. 864-865).
Defendant fails to explain how a statute expressly defining petty theft may properly be interpreted broadly enough to include nonthefts, particularly where the voters separately amended receiving stolen property under section 496, demonstrating their consideration of the separate crime of receiving stolen property and their determination that section 496 should be included within the changes to the law made under Proposition 47. (Varner, supra, 3 Cal.App.5th at p. 367.) Moreover, the California Supreme Court recently interpreted section 490.2 in determining whether Proposition 47 applies to vehicle theft under Vehicle Code section 10851 (Page, supra, 3 Cal.5th at pp. 1183-1184), and theft of access card account information under section 484e (Romanowski, supra, 2 Cal.5th at pp. 907-909). While the court has rejected reliance on a section's express inclusion, or lack of inclusion, as determinative of whether Proposition 47 applies (Martinez, supra, 4 Cal.5th at p 652; Page, supra, at pp. 1184-1185), it concluded that based on the plain language of section 490.2, vehicle theft and theft of access card account information, as crimes of theft, are included within the scope of section 490.2 (Page, supra, at p. 1183; Romanowski, supra, at pp. 912-913).
Consistent with this reasoning, the Court of Appeal in People v. Sanders recently held that Proposition 47 does not apply to convictions under section 530.5, subdivision (a), for unauthorized use of personal identifying information. (People v. Sanders, supra, 22 Cal.App.5th at p. 406, review granted July 25, 2018, S248775; contra, People v. Jimenez (2018) 22 Cal.App.5th 1282, 1291-1292 , review granted July 25, 2018, S249397.) The court reasoned that although the crime is commonly known as "identify theft" (People v. Sanders, supra, at p. 405), it is not a theft offense but instead "seeks to protect the victim from the misuse of his or her identity" (ibid.; contra, People v. Jimenez, supra, at p. 1292). As well, in People v. Soto, the Court of Appeal rejected the argument that the language of section 490.2 encompasses what it termed "'theft-plus'" offenses and concluded that Proposition 47 did not apply to the defendant's conviction for theft from an elder under section 368, former subdivision (d). (People v. Soto (2018) 23 Cal.App.5th 813, 822-823.) The court cautioned against an over-expansive reading of Romanowski and Page and explained, "Romanowski and Page consider whether stealing a particular type of property (access card information or a vehicle) could constitute petty theft. Both cases involve crimes that were previously classified as grand theft. Thus, neither had occasion to consider Proposition 47 eligibility for what we will call a pure 'theft-plus' offense, i.e., one that is not identified as grand theft and requires additional necessary elements beyond the theft itself. Nothing in Romanowski or Page suggests that section 490.2 extends to any course of conduct that happens to include obtaining property by theft worth less than $950." (People v. Soto, supra, at p. 822.)
We recognize that the First District recently came to a different conclusion than we have here and held that Proposition 47 affords relief to criminal defendants convicted of violating section 496d. (People v. Williams (2018) 23 Cal.App.5th 641, 651 (Williams).) In Williams, at page 650, the court found section 496d analogous to section 484e, which the California Supreme Court determined in Romanowski was a theft crime within the purview of Proposition 47 vis-à-vis section 490.2. (Romanowski, supra, 2 Cal.5th at pp. 907-909.) We have considered and, for the reasons stated, rejected defendant's argument regarding the reach of section 490.2. Respectfully, nothing in Williams persuades us otherwise, as we do not agree that the theft-related crime of receiving stolen property is analogous to crime of theft of access card account information. (Williams, supra, at p. 650; see Romanowski, supra, at p. 912 ["Theft of access card information requires 'acquir[ing] or retain[ing] possession of access card account information with respect to an access card validly issued to another person, without the cardholder's or issuer's consent.' (§ 484e, subd. (d), italics added.) This 'without ... consent' requirement confirms that theft of access card information is a 'theft' crime in the way the Penal Code defines 'theft.'"].) We observe that Williams neither addressed the legislative history of section 496d, which we believe, as discussed post, provides a logical basis for voters to have distinguished between section 496 and section 496d (Williams, supra, at p. 649), nor addressed the Varner decision beyond a citation relating to dismissal of the matter on review following the decision in Romanowski (Williams, supra, at p. 648, fn. 4).
Defendant nevertheless urges us to consider that Proposition 47 is intended to apply to nonviolent crimes, including receiving stolen property under section 496, and section 496d may have been inadvertently omitted due to poor drafting. We are not persuaded. As we have stated, "[i]f the language is not ambiguous, we [generally] presume the voters intended the meaning apparent from that language, and we may not add to the statute or rewrite it to conform to some assumed intent not apparent from that language." (Pearson, supra, 48 Cal.4th 564 at p. 571; accord, Varner, supra, 3 Cal.App.5th at pp. 366-367.) While we recognize that receiving a stolen vehicle under section 496d is a theft-related crime and that receiving stolen property under section 496 was amended by Proposition 47, as the court in People v. Soto aptly put it, "Absent further guidance from the Supreme Court, we are hesitant given our role as an intermediate appellate court to take [the] expansive view [urged by defendant]." (People v. Soto, supra, 23 Cal.App.5th at p. 824.)
2. Equal Protection Argument
Alternatively, defendant argues that those convicted of receiving stolen vehicles under section 496d are similarly situated to those convicted of receiving other types of stolen property under section 496, and the absence of any rational reason for this differential treatment violates his right to equal protection under the federal and state Constitutions. This argument also fails.
Defendant does not dispute that rational basis review applies. Unless a suspect classification or fundamental right is implicated, the question is whether there is a "rational relationship between a disparity in treatment and some legitimate government purpose." (People v. Chatman (2018) 4 Cal.5th 277, 288-289, citing People v. Turnage (2012) 55 Cal.4th 62, 74.)
"The concept of equal treatment under the laws means that persons similarly situated regarding the legitimate purpose of the law should receive like treatment. [Citation.] '"The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner." [Citations.] This initial inquiry is not whether persons are similarly situated for all purposes, but "whether they are similarly situated for purposes of the law challenged."'" (People v. Morales (2016) 63 Cal.4th 399, 408; accord, People v. Valencia, supra, 3 Cal.5th at p. 376; Briggs v. Brown (2017) 3 Cal.5th 808, 842.)
Once the initial showing is made, a criminal defendant advancing an equal protection claim faces a difficult next step. (People v. Chatman, supra, 4 Cal.5th at p. 289.) "In order to decide whether a statutory distinction is so devoid of even minimal rationality that it is unconstitutional as a matter of equal protection, we typically ask two questions. We first ask whether the state adopted a classification affecting two or more groups that are similarly situated in an unequal manner. [Citation.] If we deem the groups at issue similarly situated in all material respects, we consider whether the challenged classification ultimately bears a rational relationship to a legitimate state purpose. [Citation.] A classification in a statute is presumed rational until the challenger shows that no rational basis for the unequal treatment is reasonably conceivable. [Citations.] The underlying rationale for a statutory classification need not have been '"ever actually articulated"' by lawmakers, and it does not need to '"be empirically substantiated."' [Citation.] Nor does the logic behind a potential justification need to be persuasive or sensible—rather than simply rational." (Ibid., quoting Johnson v. Department of Justice (2015) 60 Cal.4th 871, 881, italics added.)
The fact that section 496 and section 496d both criminalize receipt of stolen property is, in and of itself, insufficient to establish an equal protection violation. The California Supreme Court has explained that "neither the existence of two identical criminal statutes prescribing different levels of punishments, nor the exercise of a prosecutor's discretion in charging under one such statute and not the other, violates equal protection principles." (People v. Wilkinson (2004) 33 Cal.4th 821, 838, citing United States v. Batchelder (1979) 442 U.S. 114, 124-125.) "[N]umerous factors properly may enter into a prosecutor's decision to charge under one statute and not another, such as a defendant's background and the severity of the crime, and so long as there is no showing that a defendant 'has been singled out deliberately for prosecution on the basis of some invidious criterion,' that is, '"one that is arbitrary and thus unjustified because it bears no rational relationship to legitimate law enforcement interests[,]"' the defendant cannot make out an equal protection violation." (People v. Wilkinson, supra, at pp. 838-839, quoting Manduley v. Superior Court (2002) 27 Cal.4th 537, 568-569.)
Section 496d was added to the Penal Code effective January 1, 1999. (Assem. Bill No. 2390, approved by Governor, Sept. 21, 1998 (1997-1998 Reg. Sess.) ch. 710, § 1.) Although defendant asserts that section 496d was added to the Penal Code "simply to create fines to be imposed," the legislative history of section 496d more specifically identifies the purpose underlying the proposed change to the law. Relevant to our discussion here, the bill's author stated, "'[t]his proposal would add a section to the Penal Code to encompass only motor vehicle related to the receiving of stolen property. Existing law provides penalties for the receiving of stolen property, but is not specific to vehicle theft. This proposal would allow persons convicted of this section to be identified along with vehicle thieves for the purposes of establishing priors, for statistical purposes and/or to target those persons involved in vehicle theft.'" (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 2390 (1997-1998 Reg. Sess.) as amended June 23, 1998 [arguments in support].) Further, the "'proposal would provide additional tools to law enforcement for utilization in combating vehicle theft and prosecuting vehicle thieves. Incarcerating vehicle thieves provides safer streets and saves Californians millions of dollars. These proposals target persons involved in the business of vehicle theft and would identify persons having prior felony convictions for the receiving of stolen vehicles for enhanced sentences.'" (Ibid.)
Given the stated purposes underlying the addition of section 496d to the Penal Code, the voters could have reasonably determined that in targeting vehicle thieves and those involved in the business of vehicle theft (for example, those involved in the business of stripping stolen vehicles for their parts), the statute criminalized more serious conduct than the petty theft and petty theft-related conduct at which Proposition 47 was directed. (People v. Bussey, supra, 24 Cal.App.5th at p. 1064.) Additionally, the voters could have reasonably determined that given the modern market value of most motor vehicles, trailers, construction equipment and vessels, including section 496d within the scope of Proposition 47 would do little to advance the initiative's stated goal "to reduce the number of prisoners serving sentences for nonviolent crimes, both to save money and to shift prison spending toward more serious offenses." (Romanowski, supra, 2 Cal.5th at p. 907.) As Varner explained, "The electorate could consider that only an insignificant number of persons would be prosecuted under section 496d for a vehicle valued under $950. Most would be prosecuted under section 496, subdivision (a) if the 'interests of justice' warranted conviction under that section. Moreover, the electorate could reasonably choose to include section 496, subdivision (a) violations but exclude, for now, violations of section 496d." (Varner, supra, 3 Cal.App.5th at p. 370; see People v. Bussey, supra, at p. 1064.)
Defendant points out the theft of a $500 laptop containing private client or patient information is more detrimental to society than the theft of a nonoperable vehicle valued at $750. The ability to craft arguably plausible counterarguments is not the test, however. The inquiry is whether there is a rational basis for the difference in treatment, and the high bar that applies to equal protection challenges "helps ensure that democratically enacted laws are not invalidated merely based on a court's cursory conclusion that a statute's tradeoffs seem unwise or unfair." (People v. Chatman, supra, 4 Cal.5th at p. 289.)
Another rational basis was discussed by the Court of Appeal in People v. Acosta (2015) 242 Cal.App.4th 521. In that case, the defendant was convicted of attempted second degree vehicle burglary (§§ 664, 459) and he unsuccessfully petitioned the trial court to reduce his felony conviction to a misdemeanor under Proposition 47. (People v. Acosta, supra, at pp. 523-524.) The court rejected the defendant's arguments that sections 490.2 and 459.5, the misdemeanor shoplifting statutes enacted by Proposition 47, applied to his burglary conviction. (People v. Acosta, supra, at pp. 526-527.) It also rejected the defendant's equal protection argument, stating, "We have no difficulty concluding that the electorate could rationally extend misdemeanor punishment to some nonviolent offenses but not to others, as a means of testing whether Proposition 47 has a positive or negative impact on the criminal justice system. 'Nothing compels the state "to choose between attacking every aspect of a problem or not attacking the problem at all." [Citation.] Far from having to "solve all related ills at once" [citation], the Legislature has "broad discretion" to proceed in an incremental and uneven manner without necessarily engaging in arbitrary and unlawful discrimination.'" (Id. at pp. 527-528; accord, People v. Bussey, supra, 24 Cal.App.5th at p. 1064.)
It bears repeating that defendant must show the absence of any rational reason for the allegedly differential treatment. (People v. Chatman, supra, 4 Cal.5th at p. 289.) Assuming without deciding that defendant has demonstrated those convicted under section 496d are similarly situated to those convicted under section 496, we have identified several rational bases for treating receiving stolen vehicles under section 496d differently from receiving other stolen property under section 496, foreclosing defendant's equal protection challenge.
III. Admission of Evidence Defendant was Homeless
Finally, relying on People v. Carrillo (2004) 119 Cal.App.4th 94 (Carrillo), defendant argues the trial court abused its discretion in permitting the introduction of evidence that he was homeless. He contends the evidence rendered his trial fundamentally unfair and biased the jury against him. The People respond that it was not error to admit the evidence because it was probative of opportunity and connection to the stolen vehicle, and it was probative of the credibility of defendant's statement to Detective Whaley that he rented the vehicle for $20. They also contend any error was harmless.
A. Standard of Review
We review a trial court's ruling on the admission or exclusion of evidence for abuse of discretion. (People v. Kopatz (2016) 61 Cal.4th 62, 85; People v. DeHoyos (2013) 57 Cal.4th 79, 131.) "Under this standard, a trial court's ruling will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." (People v. Guerra (2006) 37 Cal.4th 1067, 1113, disapproved on other grounds in People v. Rundle (2008) 43 Cal.4th 76, 151, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; accord, People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 390.)
"[W]e review the ruling, not the court's reasoning and, if the ruling was correct on any ground, we affirm. '"'No rule of decision is better or more firmly established by authority, nor one resting upon a sounder basis of reason and propriety, than that a ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for the wrong reason. If right upon any theory of law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion.'"'" (People v. Geier (2007) 41 Cal.4th 555, 582, quoting People v. Zapien (1993) 4 Cal.4th 929, 976, overruled on other grounds in Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305, 309-311.)
B. Evidence of Poverty
"Ordinarily, '[e]vidence of a defendant's poverty or indebtedness, without more, is inadmissible to establish motive for robbery or theft because it is unfair to make poverty alone a ground of suspicion and the probative value of the evidence is deemed to be outweighed by the risk of prejudice.'" (People v. Clark (2011) 52 Cal.4th 856, 929; accord, People v. Koontz (2002) 27 Cal.4th 1041, 1076; Carrillo, supra, 119 Cal.App.4th at pp. 101-102 & fn. 2.) "Under certain circumstances, however, evidence of poverty or indebtedness may be relevant and admissible for limited purposes, such as to refute a defendant's claim that he did not commit the robbery because he did not need the money." (People v. Wilson (1992) 3 Cal.4th 926, 939; accord, People v. Tully (2012) 54 Cal.4th 952, 1009.)
Defendant moved in limine to exclude evidence of his homelessness as irrelevant. The prosecutor argued for the introduction of the evidence to show defendant was living in the homeless encampment located by the auto repair shop, and to address defendant's statement to police that he paid $20 to rent the vehicle. The trial court found the evidence relevant for the purposes identified by the prosecutor and permitted its introduction.
As an initial matter, we disagree with defendant's characterization of the trial court's ruling as limiting use of the evidence to defendant's location. Prior to the court's ruling, the prosecutor articulated two bases for seeking introduction of the evidence: defendant's location and to address his statement to police that he rented the vehicle for $20. The court then ruled the evidence was admissible. As such, the record does not support defendant's view of the scope of the ruling.
We also find defendant's reliance on Carrillo misplaced. In Carrillo, the defendant's boyfriend snatched a necklace from a woman's neck and ran up an alley, where the defendant was sitting behind the wheel of a parked car. (Carrillo, supra, 119 Cal.App.4th at p. 97.) The defendant was subsequently convicted of aiding and abetting the robbery in a case that was entirely circumstantial. (Id. at pp. 97, 104.) The prosecutor elicited a great deal of testimony on the defendant's financial situation through the examination of multiple witnesses, but the trial court restricted the defendant's ability to address that area of evidence. (Id. at p. 101.) As a result, the jury was made aware the defendant was an unemployed, unwed mother of two children on government assistance. (Id. at p. 104.) Although the prosecutor did not expressly argue the defendant's financial status motivated her to commit the crime with which she was charged, the Court of Appeal concluded "[t]he evidence of [her] finances was so extensive, the notion was virtually inescapable." (Ibid.)
No such emphasis on defendant's financial status occurred here. The evidence elicited was limited to the fact defendant was staying in the homeless encampment, demonstrating his proximity to the repair shop where the vehicle was stolen from and providing a factual basis to counter defendant's explanation that he rented the car; unlike in Carrillo, the prosecutor did not elicit testimony on the details of defendant's financial circumstances or employment status. (Carrillo, supra, 119 Cal.App.4th at p. 103.) Notably, in Carrillo, the People made no attempt on appeal to justify the evidence introduced. (Id. at p. 100.) Here, in contrast, the People point out the evidence was probative of defendant's opportunity to commit the crime and to cast doubt on the credibility of his explanation to police that he rented the vehicle from someone for $20. We agree with the People, but in any event, even assuming error, the error was harmless.
C. Any Error Harmless
"Absent fundamental unfairness, state law error in admitting evidence is subject to the traditional Watson test: The reviewing court must ask whether it is reasonably probable the verdict would have been more favorable to the defendant absent the error." (People v. Partida (2005) 37 Cal.4th 428, 439; see People v. Lucas (2014) 60 Cal.4th 153, 263, disapproved on another ground in People v. Romero and Self (2015) 62 Cal.4th 1, 53, fn. 19.)
Although defendant denied stealing the vehicle, it was uncontested that he was driving the victim's vehicle without her consent and in the area from where it was stolen. Unlike in Carrillo, the testimony in this case regarding defendant's homelessness was neither detailed nor extensive, the evidence was not offered to prove motive, and there is no indication the jury concentrated on the issue. (See Carrillo, supra, 119 Cal.App.4th at p. 104 ["While arguments based merely upon how long a jury deliberated are almost never persuasive, the questions the jurors ask and the areas in which they focus their deliberations can be revealing."].) Although defendant mentions the jury took only 20 minutes to deliberate, the trial was not lengthy overall and the evidence was not complicated. (Ibid.) Under these circumstances, we find admission of the limited evidence that defendant was homeless harmless.
We note that although defendant asserts the error resulted in fundamental unfairness, he relies on the state standard articulated in Watson in arguing the error was prejudicial. (Watson, supra, 46 Cal.2d at p. 836.) We conclude that even if evaluated under the federal standard of review articulated in Chapman v. California (1967) 386 U.S. 18, "it is clear beyond a reasonable doubt that a rational jury would have rendered the same verdict absent the error." (People v. Merritt (2017) 2 Cal.5th 819, 831; accord, Neder v. United States (1999) 527 U.S. 1, 15-16; People v. Gonzalez (2012) 54 Cal.4th 643, 663). That is, we find this asserted "'"error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record."'" (People v. Brooks (2017) 2 Cal.5th 674, 742.) --------
DISPOSITION
The judgment is affirmed.
/s/_________
MEEHAN, J. WE CONCUR: /s/_________
HILL, P.J. /s/_________
POOCHIGIAN, J.