Opinion
A165688
12-20-2023
THE PEOPLE, Plaintiff and Respondent, v. JACINTO DONALD PUIG, Defendant and Appellant.
NOT TO BE PUBLISHED
(Contra Costa County Super. Ct. No. 02003342201)
CHOU, J.
Defendant Jacinto Donald Puig appeals a final judgment after a jury found him guilty of felony vehicle theft, receiving a stolen vehicle, and possession of a burglary tool. At trial, Puig, a mechanic, testified that he did not know the car he was driving was stolen and that he was dropping it off to a client when he was pulled over. Puig argues that (1) his counsel's failure to request a mistake-of-fact instruction constituted ineffective assistance of counsel; (2) there was insufficient evidence to support his burglary tool conviction based on his possession of a shaved key; and (3) the burglary tool jury instruction erroneously omitted that he had to intend to use the shaved key to break or enter into the car. We agree that the failure to request a mistake-of-fact instruction was ineffective assistance of counsel and reverse
Puig's felony vehicle theft and receipt of a stolen vehicle convictions. We, however, affirm his conviction for possession of a burglary tool.
In a separate petition for writ of habeas corpus, case No. A168430, Puig raised an ineffective assistance of counsel claim based on his trial counsel's failure to request a mistake-of-fact instruction. Because we reverse his felony vehicle theft and receipt of a stolen vehicle convictions on that same ground here, we have denied the petition as moot by separate order filed on this date.
I. BACKGROUND
A. Procedural History
In August 2021, plaintiff and respondent the People of the State of California (People) filed an information charging Puig with: (1) driving or taking a vehicle without consent, a felony (Veh. Code, § 10851, subd. (a); count 1); (2) receiving a stolen vehicle, a felony (Pen. Code, § 496d, subd. (a); count 2); (3) possessing MDMA, a misdemeanor (Health &Saf. Code, § 11377; count 3); (4) possessing methamphetamine, a misdemeanor (Health &Saf. Code, § 11377; count 4); and (5) possessing burglar's tools, a misdemeanor (§ 466; count 5). Counts 1 and 2 included special allegations based on Puig's prior vehicle theft convictions in 2018, 2019, and 2020.
All further statutory references are to the Penal Code unless otherwise specified.
Puig was convicted of counts 1, 2, and 5 following a jury trial. The trial court declared a mistrial as to the two drug possession counts after the jury was unable to reach a unanimous verdict on them. The People subsequently agreed to dismiss those two counts. On count 1, the court sentenced Puig to four years in prison, suspended the execution in part, and imposed a split sentence of two years in county jail and two years of mandatory supervision.
The jury split "nine and three" on those two counts.
On count 2, the court sentenced Puig to four years in prison but stayed the sentence pursuant to section 654. On count 5, the court sentenced Puig to 180 days in jail, concurrent to count 1. Puig timely appealed.
B. Factual History
On February 27, 2021, Wai Wong reported his 1996 green Honda Accord stolen to the police. He had left his car in a parking lot the day before. Wong confirmed that the doors were locked and that he had his car keys with him.
On March 4, 2021, Officer Kellan Sanderlin was on patrol when he received a notification from an automated license plate reader system that Wong's car was in a nearby area. He drove to this area, saw Puig driving the car, and conducted a felony stop. Puig complied with Sanderlin's commands and got out of the car slowly.
Officer Sanderlin searched the car and found a shaved key, which he explained at trial is a key with the sides and ridges shaved down to mimic "the master key" so it can start a car. Shaved keys are often used to steal Honda Accords like the one Puig was driving. Officer Sanderlin could not recall if the shaved key he found was the key he found in the car's ignition port, but he noted that the shaved key "with the black handle" was "similar" to "the one [he] took a picture of inside the port." That key was attached to a keyring with three other shaved keys. The steering column underneath the steering wheel was ripped out and exposed, which Officer Sanderlin testified was common in stolen vehicles.
Officer Sanderlin also found a black case in the front passenger seat that contained what he suspected was methamphetamine and MDMA and a clear glass pipe on the floor of the backseat. He also found a screwdriver, a hammer, and gloves in the car.
Puig was an experienced mechanic. He told Officer Sanderlin that the car belonged to his friend and client "Kate" and that she had given the car to him three days ago so he could fix the ignition and install a new stereo. Puig initially testified that he was on his way "to drop off" the car with Kate when he was pulled over by the police. He later testified that he was on his way home after attempting to return the car to Kate.
At the time Puig was pulled over, the car had a new stereo installed. Puig explained that he had not re-installed the steering column yet because he still had to install a final part for the stereo. Puig did not know Kate's last name and did not see or speak to her after he was pulled over. He testified that he tried to look for Kate after the incident but that the homeless encampment where she was staying had been "wiped out," so he could not find her.
Puig claimed that he had not noticed any shaved keys on the keyring he was provided and confirmed that he did not know Wong and was not given permission by Wong to take his car. He testified that the shaved key the police found in the ignition was not the one he used but admitted that he used another key to "turn the vehicle on" and "to unlock the vehicle." He denied that the drugs, pipe, gloves, or hammer found in the car were his and stated that he did not open or know what was inside the black case when he was driving the car.
Puig admitted that he had three prior convictions for vehicle theft in which he pleaded no contest. In two of those cases, Puig told the police that he had received the car in question from a friend. He admitted that he lied to the police and blamed other people because he was under the influence of drugs and was scared at the time. A detective in stolen vehicle investigations testified that it is common for car theft suspects to say that they received the car from a friend. And in one of Puig's prior vehicle theft cases, the police found a shaved key in the ignition with four other shaved keys attached to the keyring.
II. DISCUSSION
A. The Failure to Request a Mistake-of-Fact Instruction was Ineffective Assistance of Counsel.
Puig contends he received ineffective assistance of counsel because his counsel failed to request a mistake-of-fact instruction. We agree and reverse his felony vehicle theft and receipt of a stolen vehicle convictions.
1. Standard of Review
The standard of review for an ineffective assistance of counsel claim is well established. "First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense." (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) Prejudice requires a showing of "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Id. at p. 669.) A defendant has the burden of proving these factors by a preponderance of the evidence. (People v. Stratton (1988) 205 Cal.App.3d 87, 93.)
In general, "[w]e presume 'counsel's conduct falls within the wide range of reasonable professional assistance' [citations], and accord great deference to counsel's tactical decisions. [Citation.] Because it is inappropriate for a reviewing court to speculate about the tactical bases for counsel's conduct at trial [citation], when the reasons for counsel's actions are not readily apparent in the record, we will not assume constitutionally inadequate representation and reverse a conviction unless the appellate record discloses' "no conceivable tactical purposes"' for counsel's act or omission." (People v. Lewis (2001) 25 Cal.4th 610, 674-675 (Lewis).)
2. Counsel Should Have Requested the Instruction.
A mistake of fact defense disproves criminal intent and is appropriately given as a jury instruction when a defendant's mistaken belief negates an element of the crime. (People v. Givan (2015) 233 Cal.App.4th 335, 345.) Based on his invocation of this defense at trial, Puig contends his trial counsel should have requested CALCRIM No. 3406 (CALCRIM 3406). That instruction would have informed the jury that Puig "did not have the intent or mental state required to commit the crime[s]" of felony vehicle theft (Veh. Code, § 10851) or receipt of a stolen vehicle (Pen. Code, § 496d, subd. (a)) if he "mistakenly believed a fact"-i.e., that his friend owned the car- regardless of whether that belief was reasonable or not. (CALCRIM 3406.) We agree.
To find Puig guilty of felony vehicle theft, the jury was instructed that it must find that he intended to deprive the owner of possession at the time he was driving the car. And to find Puig guilty of felony receipt of a stolen vehicle, the jury was instructed that it must find that he knew the car was stolen at the time he received it.
In defending against these two charges, Puig testified that he mistakenly believed the car belonged to his client. And in closing, Puig's counsel argued that, for this reason, Puig lacked the intent or knowledge necessary for a felony vehicle theft or receipt of a stolen vehicle conviction. Indeed, this was the only defense to those charges asserted by Puig. Under these undisputed facts, there appears to be no conceivable reason why Puig's counsel failed to request CALCRIM 3406. (See Lewis, supra, 25 Cal.4th at p. 675.)
The People do not dispute that Puig's only defense to the vehicle theft and receipt of a stolen vehicle charges was his mistaken belief that his client owned the vehicle. Instead, the People claim that there was no substantial evidence to support a mistake-of-fact instruction. We disagree. Although a "trial court does not have a sua sponte duty to give a mistake[-]of[-]fact instruction," it is "required to give such an instruction on request, where a defendant presents substantial evidence on mistake of fact and the instruction is legally correct." (People v. Speck (2022) 74 Cal.App.5th 784, 791 (Speck).) "In determining whether the evidence is sufficient to warrant a jury instruction, the trial court does not determine the credibility of the defense evidence, but only whether 'there was evidence which, if believed by the jury, was sufficient to raise a reasonable doubt.'" (People v. Salas (2006) 37 Cal.4th 967, 982.)
Here, Puig testified that his client asked him to repair the ignition and install a stereo in her car and that he was trying to return the car to her when he was pulled over. The car did, in fact, have a new stereo installed at the time of Puig's arrest. Puig also explained that there were exposed wires under the steering column because he still needed to install a missing component for the stereo. The People argue that in light of Puig's prior convictions for car thefts with similar fact patterns, his trial counsel "properly could have determined that [Puig's] self-serving testimony alone did not constitute substantial evidence to support giving a mistake-of-fact instruction." But the People's argument is belied by the closing argument delivered by Puig's counsel in which she argued that Puig "did not know it was a stolen vehicle that Mr. Wong had reported stolen." In any event, even if Puig's counsel did not find his testimony credible, she was still obligated to request the instruction because Puig's testimony, if believed by the jury, was sufficient to raise a reasonable doubt as to his guilt. Indeed, it does not matter whether counsel or the trial court believed Puig's testimony; it was the jury's duty to assess Puig's credibility. Thus, Puig's testimony, whether credible or not, was sufficient to support a mistake-of-fact instruction, and counsel's failure to request that instruction constitutes deficient performance.
3. Counsel's Error was not Harmless.
The People argue that even if counsel's performance was deficient, her failure to request a mistake-of-fact instruction was not prejudicial because (1) it was covered by several other instructions regarding the requisite mental state required for vehicle theft or receipt of a stolen vehicle; and (2) the evidence overwhelmingly established that Puig knew he was driving a stolen car. We are not persuaded.
The People also contend the error was harmless because there was insufficient evidence to support a mistake-of-fact instruction. We have already rejected this contention. (See, supra, at pp. 7-8.)
Another court of appeal has recently rejected these very same harmless error arguments. In Speck, supra, 74 Cal.App.5th at page 787, the defendant was caught driving a stolen car "with no front license plate" that had been "spray painted matte black." Although the defendant "had the keys to the" car, the "rear license plate did not match the car's vehicle identification number. (Ibid.) The police also discovered the "assigned license plate in the back seat" and a "large pair of bolt cutters and a power drill that matched the dimensions of the screws used to secure the rear license plate" in the trunk. (Ibid.) Similar to Puig, the defendant claimed that he borrowed the car from a friend. (Ibid.) The jury found the defendant, like Puig, guilty of felony vehicle theft and receiving a stolen vehicle. (Ibid.) Finally, the defendant, like Puig, argued that the trial court erred by failing to give the mistake-of-fact instruction.
In reversing the defendant's convictions, Speck rejected the People's first argument that CALCRIM 3406, the mistake-of-fact instruction, was duplicative of other instructions given by the trial court. (Speck, supra, 74 Cal.App.5th at p. 792.) Because the subject offenses-vehicle theft and receipt of a stolen vehicle-were specific intent crimes, "a successful defense of both offenses required only that [the] defendant's mistaken beliefs be actual, not reasonable." (Id. at p. 793.) Although the other instructions given by the trial court addressed the intent the jury had to find for those two offenses, they did not "inform[] the jury how it could consider the facts presented here-facts that the trial court properly found constituted substantial evidence of defendant's mistaken belief that [his friend] was the [car's] owner-in the context of theft such that the belief, even if unreasonable, could negate knowledge and intent." (Id. at p. 792.) Thus, "the intent elements in the [] instructions given [were] not 'synonymous' with the defense outlined by CALCRIM [] 3406." (Ibid.)
Speck then concluded that "[t]he evidence supporting [the] defendant's claim that he believed he had permission to drive the car from [his friend] and did not know the car was stolen was not so comparatively weak that there is no reasonable probability of a different result had the jury been correctly instructed." (Speck, supra, 74 Cal.App.5th at p. 794.) Speck therefore found that the instructional omission was prejudicial. (Ibid.)
Speck's reasoning is equally applicable here. First, nothing in the instructions given by the trial court informed the jury that Puig lacked the requisite mental state even if his belief that Kate owned the car was unreasonable. (See Speck, supra, 74 Cal.App.5th at p. 792.) The significance of this omission is clear from the closing arguments, where the prosecution emphasized that Puig's belief was unreasonable. Indeed, the prosecution expressly argued to the jury that "[t]he explanation we received from [Puig] is not reasonable."
Second, the evidence supporting Puig's claim that he believed that his client owned the car and that the car was not stolen was not so comparatively weak as to leave this court with no serious doubt that the error did not affect the jury's verdict. Admittedly, there was strong evidence that Puig knew the car he was driving was stolen. But there was also evidence that corroborated Puig's story. For example, Puig's claim that he was installing a stereo for a client was supported by the fact that the car had a new stereo when he was pulled over. He also offered a plausible explanation for the exposed wires under the steering column-that he still needed to install a missing stereo component. He further explained that his prior vehicle theft convictions should have no bearing on this case because he pled guilty in those cases but chose to contest the charge in this case because he was not lying here. Most significantly, as evidenced by the jury's inability to reach a unanimous verdict on the drug possession counts even though Puig was driving alone in the car with a ziplocked case containing drugs on the front passenger seat, at least some jurors found him to be credible. Indeed, because some jurors apparently believed Puig's denial that the drugs were his despite his admitted struggle with drug addiction, those same jurors may have believed his claim that he thought he had permission to drive the car. Thus, based on the instructions given by the trial court and the People's closing argument, at least one juror could have found Puig guilty solely because that juror found his belief to be unreasonable. We cannot therefore conclude that there was no reasonable probability of a more favorable result, like a hung jury, if CALCRIM 3406 had been given.
Our conclusion is reinforced by the People's failure to address the reasoning of Speck even though Puig relied heavily on Speck in his opening brief. Indeed, the People only argued that Speck was inapplicable because it "did not concern ineffective assistance of counsel and whether defense counsel had no conceivable tactical reason for not requesting the mistake-of-fact instruction." The People did not, however, identify any tactical reason for foregoing that instruction, and we could conceive of none. (See, supra, at pp. 6-7.) And the standard for prejudice for ineffective assistance of counsel appears to be no different than the standard for prejudice under People v. Watson (1956) 46 Cal.2d 818 (Watson). (See Richardson v. Superior Court (2008) 43 Cal.4th 1040, 1050-1051 [acknowledging that the" 'reasonable probability' standard" in Strickland and Watson are similar, if not identical].)
Accordingly, we find that the failure of Puig's counsel to request CALRIM 3406 constitutes ineffective assistance of counsel, necessitating the reversal of his convictions for felony vehicle theft (Veh. Code, § 10851) and receipt of a stolen vehicle (Pen. Code, § 496d, subd. (a)).
B. There Was Sufficient Evidence to Support the Burglary Tool Conviction.
Puig contends that there was insufficient evidence to support his burglary tool conviction "because there was no evidence that [he] possessed the shaved key with the intent to use it to break or enter into the car to commit a felony therein." Puig argues that the evidence, at most, showed that he possessed the shaved key with the intent to start the car and not to break or enter into it. We disagree.
"In reviewing the sufficiency of the evidence, we must determine 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' [Citation.] '[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence-that is, evidence which is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.'" (People v. Davis (1995) 10 Cal.4th 463, 509.)
Section 466, the burglary tool statute, "does not merely prohibit possession of certain devices with an intent to commit burglary or theft [citation], nor does it reference the use of tools to commit theft, rather than breaking or entering." (In re H.W. (2019) 6 Cal.5th 1068, 1075.) Instead, section 466 includes "an intent requirement focused specifically on commission of a felonious breaking or entry." (Id. at p. 1076.) Accordingly, an "intent to use an 'instrument or tool' to break or otherwise effectuate physical entry into a structure in order to commit theft or some other felony within the structure" is required. (Ibid.)
Here, the officers identified a shaved key-which may be used as a "master key to a vehicle"-in the ignition of the car when Puig was pulled over. Puig further admitted that the car was locked when he received it and that he used the same key to unlock the car and to turn the car on. Although Puig denied that the shaved key pictured in the car's ignition was the one he used to drive the car at the time he was pulled over, the jury could have reasonably discredited Puig's denial and found that he used the shaved key claimed to have been found in the ignition by the arresting officer to unlock and enter the car. Thus, there is more than enough evidence to establish, not only that Puig intended to use the shaved key to unlock and enter the car in order to steal it, but also that he did, in fact, do so.
This is further supported by the fact that the key in the ignition was attached to a keyring with three other shaved keys.
C. Any Error in the Burglary Tool Jury Instruction was Harmless.
Finally, Puig contends that even if there was sufficient evidence to support his burglary tool conviction, reversal is warranted because the trial court gave an erroneous jury instruction. We disagree and find that the instructional error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)
There is no standard jury instruction for the possession of burglary tools in violation of section 466. (People v. Bay (2019) 40 Cal.App.5th 126, 136 (Bay).) However, "to sustain a conviction for possession of burglary tools . . ., the prosecution must establish three elements: (1) possession by the defendant; (2) of tools within the purview of the statute; (3) with the intent to use the tools for the felonious purposes of breaking or entering." (People v. Southard (2007) 152 Cal.App.4th 1079, 1084-1085.)
Here, the jury was instructed that to find Puig guilty of possession of burglary tools, the People must prove that: (1) he "possessed a shaved key or shaved keys;" (2) he "knew of the presence of that shaved key/those shaved keys;" and (3) "at the time [he] possessed the shaved key/those shaved keys, he intended to enter into the vehicle with the intent to commit theft." Puig argues and the People concede that this instruction erroneously omitted the element that Puig must have intended to use the key to break or enter into the car.
Nonetheless, we find that this omission was harmless beyond a reasonable doubt. The "omission of an element [in a jury instruction] can be held harmless because 'the particular issues were . . . uncontested and indisputable' and 'the factual truth of the omitted element was implicitly found by the jury.'" (Bay, supra, 40 Cal.App.5th at p. 138.) Here, there was uncontested testimony that a shaved key like the one on the keychain used by Puig had no lawful purpose and may be used as a "master key to a vehicle" that would "start the vehicle." (Italics added.) As a master key, the shaved key could presumably be used both to unlock the car and to drive it, and there was no evidence at trial to the contrary. This is reinforced by Puig's admission that he used the same key to unlock the driver's side door and to start the car. Finally, consistent with the uncontested testimony that a shaved key could be used as a master key to a vehicle, the prosecution, during closing arguments, emphasized that Puig used a shaved key to get into the car in order to commit theft. Based on this uncontested evidence, we conclude that the jury, upon finding that Puig possessed the shaved key with the intent to steal the car, implicitly found that Puig also intended to use the shaved key to unlock and enter the car. The error in the jury instruction was therefore harmless beyond a reasonable doubt.
III. DISPOSITION
Puig's convictions on counts 1 and 2 are reversed. In all other respects the judgment is affirmed. On remand, the People may elect to retry Puig on counts 1 and 2.
We concur. SIMONS, Acting P. J., BURNS, J.