Opinion
NOT TO BE PUBLISHED
Superior Court County of Los Angeles, No. LA053042, Kathryne A. Stoltz, Judge.
Alan Stern, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels, Supervising Deputy Attorney General, Lauren E. Dana, Deputy Attorney General, for Plaintiff and Respondent.
YEGAN, J.
Gregory C. Winston appeals from the judgment entered following his conviction by a jury on two counts of unlawfully taking or driving a vehicle (Veh. Code, § 10851, subd. (a)), one count of possessing a forged driver's license (Pen. Code, § 470b), and six counts of grand theft. (Id., § 487, subd. (a).) The jury found true an allegation that the value of the property taken exceeded $150,000. (Former Pen. Code, § 12022.6, subd. (a)(2).) Appellant was sentenced to prison for nine years.
All statutory references are to the Vehicle Code unless otherwise stated.
Effective January 1, 2008, the loss specified in Penal Code section 12022.6, subdivision (a)(2), was increased to $200,000. (Stats. 2007, c. 420, § 1.) The amendment applies prospectively only. (Id., § 2.)
This appeal concerns only one count (count 12) charging a violation of section 10851, subdivision (a). The count alleges that appellant unlawfully took or drove a 2002 Mercedes Benz G500 owned by Burbank Federal Credit Union (Credit Union). Appellant contends that, as to this count, the trial court erroneously denied his Penal Code section 1118.1 motion for a judgment of acquittal. Appellant argues that the evidence was insufficient to establish that the taking or driving of the vehicle was without the owner's consent. We affirm.
Facts
In July 2005 Joy Allen was introduced to appellant by her boyfriend. Appellant proposed a business deal to Allen whereby she would purchase vehicles in her name and turn them over to appellant, who would either sell or lease them within 30 to 60 days. Allen agreed to purchase two vehicles.
Allen gave appellant her social security number and date of birth. With this personal information, appellant arranged for the purchase of a BMW in Allen's name. She took possession of the vehicle and gave the keys to appellant, who drove the vehicle away.
The second vehicle that Allen agreed to purchase was a Mercedes Benz CLS 500. In August 2005 Allen went to Specialty Motors to purchase the vehicle. Allen signed two "blank contracts" for a loan on the vehicle, but no purchase was made.
Later, at appellant's request Allen opened an account at the Credit Union for the purpose of obtaining a loan from that institution to finance the purchase of the Mercedes Benz CLS 500. She "again signed two blank loan contracts" and gave them to appellant. But she was subsequently informed that the deal had fallen through.
Approximately one month later, Allen learned that her credit report showed that she had purchased two vehicles from Specialty Motors: a Land Rover Range Rover and a 2002 Mercedes Benz G500. Allen had not purchased these vehicles and had not given anyone permission to purchase them in her name. Allen contacted appellant, who said that three vehicles had been purchased in her name and that they would be "out of [her] name within 30 to 60 days." Appellant said that he would make a payment of $10,000 for the Mercedes, but the payment was never made.
The Credit Union financed the purchase of the Mercedes Benz G500. The amount of its loan was $53,315.71, the full purchase price. As a result of this transaction, the Credit Union became the legal owner of the vehicle.
The Credit Union made the loan based on an application purportedly completed by Allen. Allen, however, had not filled in the application. It was one of the blank loan contracts that she had signed at Specialty Motors. The application stated that Allen was a portfolio manager at Sunset Financial and that her gross monthly income was $14,000. This information was false. Appellant's only employer was the Naval Reserve, and her monthly income was about $250 per month.
The Credit Union would not have made the loan if it had known that the information on the loan application was false. Nor would the Credit Union have given anyone permission to possess or drive the vehicle had it known that the information was false.
Allen did not make any payments on the loan from the Credit Union. However, someone made one payment. In November 2005 the Credit Union took action to repossess the vehicle for nonpayment of the loan.
The Mercedes Benz G500 was eventually reported stolen. On January 18, 2006, Officer Robert Trulik went to an apartment complex to search for the vehicle. He saw appellant drive the Mercedes into a parking space. Trulik, who was in uniform, stopped his marked police vehicle behind the Mercedes.
As appellant was exiting the Mercedes, he dropped on the ground the vehicle keys and a garage remote door opener. Appellant told Trulik that the vehicle was stolen, that he had received a telephone call from Specialty Motors, and that he was trying to return it to them. Appellant was "extremely nervous" and was sweating. Trulik handcuffed appellant and led him into the back seat of the police vehicle.
After his arrest, appellant telephoned Allen and instructed her to say that "Nick was behind everything." Appellant had not previously mentioned the name "Nick" to her. Allen asked appellant whether he was going to make the payments on the cars. Appellant replied, "They're going to find this to be fraud. So automatically, if it's fraud, it's going to come off your credit."
Standard of Review
" 'The standard applied by a trial court in ruling upon a motion for judgment of acquittal pursuant to [Penal Code] section 1118.1 is the same as the standard applied by an appellate court in reviewing the sufficiency of the evidence to support a conviction, that is, "whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged." ' [Citation.] 'The purpose of a motion under section 1118.1 is to weed out as soon as possible those few instances in which the prosecution fails to make even a prima facie case.' [Citations.] The question 'is simply whether the prosecution has presented sufficient evidence to present the matter to the jury for its determination.' [Citation.] The sufficiency of the evidence is tested at the point the motion is made. [Citations.] The question is one of law, subject to independent review. [Citation.]" (People v. Stevens (2007) 41 Cal.4th 182, 200.)
Discussion
"To establish a defendant's guilt of violating Vehicle Code section 10851, subdivision (a), the prosecution is required to prove that the defendant drove or took a vehicle belonging to another person, without the owner's consent, and that the defendant had the specific intent to permanently or temporarily deprive the owner of title or possession. [Citation.]" (People v. O'Dell (2007) 153 Cal.App.4th 1569, 1574, fn. omitted.)
Appellant contends that "the evidence was legally insufficient . . . to support a conviction on count 12 in that it failed to establish that the consent to possession of the Mercedes obtained from Burbank Federal Credit Union was ever effectively revoked." This contention assumes that the Credit Union initially consented to appellant's use of the vehicle. Appellant argues that the Credit Union's initial consent, even though fraudulently obtained, was valid: "[T]he fact that an owner's consent was obtained by fraud does not supply the element of non-consent." In support of his argument, appellant cites People v. Donell (1973) 32 Cal.App.3d 613, 617-618, and People v. Cook (1964) 228 Cal.App.2d 716, 719-721. In these cases the court held that consent induced by fraud constitutes valid consent for purposes of section 10851, subdivision (a), and therefore bars prosecution for a violation of that section.
But respondent presented substantial evidence showing that the Credit Union did not consent to appellant's use of the vehicle. The jury could have reasonably found that the Credit Union had consented to the use of the vehicle only by Allen and by persons operating the vehicle with Allen's consent. The jury could also have reasonably found that Allen did not consent to appellant's operation of the vehicle. Allen testified that she had not purchased the 2002 Mercedes Benz G500 and had not given anyone permission to purchase the vehicle in her name.
Thus, here we have not fraud in the inducement, but "fraud in the factum, which gives rise to no consent at all . . . ." (People v. Cook, supra, 228 Cal.App.2d at p. 720.) Fraud in the factum occurs where "the owner never intended that the defendant would acquire possession of the car for his own use." (Ibid.)
In any event, even if the Credit Union had initially consented to appellant's use of the vehicle, substantial evidence would have supported a finding that such consent was withdrawn when the vehicle was reported stolen. Substantial evidence would also have supported a finding that, when appellant drove the vehicle on January 18, 2006, he was aware of the withdrawal of consent. He told Officer Trulik that the vehicle had been stolen. Accordingly, the trial court did not err in denying appellant's motion for a judgment of acquittal on count 12.
Disposition
The judgment is affirmed.
We concur: GILBERT, P.J., COFFEE, J.