Opinion
G038219
1-14-2009
THE PEOPLE, Plaintiff and Respondent, v. JOSE BARAJAS FERNANDEZ, Defendant and Appellant.
Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, David Delgado-Rucci and Ronald A. Jakob, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
INTRODUCTION
Defendant Jose Barajas Fernandez appeals from his conviction for unlawfully taking a vehicle, in violation of Vehicle Code section 10851, subdivision (a). We reject each of defendants arguments, and affirm the judgment.
First, defendant argues the trial court abused its discretion by admitting evidence that defendants prior conviction for unlawfully taking a vehicle involved the same make and model of car as the one in the present case. We conclude the trial court did not abuse its discretion; even if it did, any error was harmless.
Second, defendant contends he was denied effective assistance of counsel because his attorney failed to object to the admission of the evidence of the make and model of the car involved in the prior conviction. This argument fails because, as explained in connection with the previous argument, further objection would have been futile since the evidence was properly admitted.
Finally, defendant challenges the constitutionality of CALCRIM No. 220, with which the jury was instructed. We find no constitutional infirmity.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
On March 20, 2006, Thomas Vu discovered his wifes white 1991 Nissan Maxima had been stolen from the driveway of their home in Santa Ana. Two days later, Sergeant Santo Porto of the Brea Police Department saw a white Nissan Maxima traveling at 75 miles per hour on the freeway. Porto pulled alongside the vehicle and made eye contact with the driver; the driver looked over at Porto, and immediately turned his head and looked forward, raising Portos suspicions. The vehicle never slowed down, which Porto testified was unusual. He ran the license plate, and discovered the car had been reported stolen. Porto initiated a felony traffic stop after backup officers arrived.
Porto placed defendant, the driver and only occupant of the car, into custody. Porto noted that the cars engine continued to run even when the key was in the off position or was removed from the ignition. Porto also noticed a rubber grommet and a piece of plastic were missing from around the ignition. He examined the key that had been in the ignition, and testified it had been shaved down so it could fit into any lock. The shaved key could not turn off the cars engine; to do that, an object, such as a screwdriver or a spoon, would have to be inserted in the steering column. Porto found a spoon on the drivers side floorboard of the car, which could have been used to start and stop the car.
The parties stipulated that in 2004, defendant had been convicted of unlawfully taking and driving a 1998 Nissan Maxima. The jury was instructed that it could only consider this evidence to determine whether defendant had the specific intent to steal the vehicle in the present case, to determine whether he knew the vehicle was stolen while he was driving it, to evaluate defendants credibility, and to determine if the prior conviction allegation was true.
Tyron Rye testified for the defense, and admitted he was a professional car thief with prior convictions for stealing cars. Rye testified he received the white 1991 Nissan Maxima as collateral for a $4,000 gambling debt. Rye saw defendant at an apartment complex in Riverside, and recognized him from previous jail and prison encounters. Rye loaned the vehicle to defendant to attend a drug class. Defendant did not return with the vehicle. When Rye and defendant later met in jail, defendant explained he had been arrested because the car was stolen. Rye contacted the person who had given him the car; that person confirmed the car was stolen. Rye provided a letter to defendants attorney, explaining he had given the car keys to defendant, and neither of them had known the car was stolen.
Defendant admitted receiving the car keys from Rye the morning of March 22, 2006. Although defendant noticed the rubber piece around the ignition was missing, it did not mean anything to him. He left early so he would have time to buy some drugs before attending his Proposition 36 drug class. He testified the spoon found in the car was for use with drugs, not to turn the car on and off.
Defendant was charged with and convicted of unlawfully taking a vehicle, in violation of Vehicle Code section 10851, subdivision (a). Pursuant to Penal Code section 666.5, subdivision (a), the jury found true the allegation defendant had previously been convicted of violating Vehicle Code section 10851, subdivision (a). In a bifurcated proceeding, defendant admitted three prior conviction allegations. The trial court sentenced defendant to the midterm of three years, plus three consecutive one-year terms for each of the prior conviction enhancements, for a total of six years. The court also imposed a restitution fine, a parole revocation fine (which was stayed), a court security fee, and victim restitution. Defendant timely appealed.
DISCUSSION
I.
Did the trial court abuse its discretion in admitting details regarding defendants prior conviction under Vehicle Code section 10851, subdivision (a)?
Defendant argues the trial court abused its discretion by admitting evidence that his prior conviction for the unlawful taking of a vehicle under Vehicle Code section 10851, subdivision (a) involved a 1998 Nissan Maxima. We review the trial courts ruling for an abuse of discretion. (People v. Abilez (2007) 41 Cal.4th 472, 500.)
Defendant does not argue the fact of his prior conviction, without mentioning the make and model of the car, would have been an abuse of discretion. Indeed, the prior felony conviction was admissible to prove the prior conviction allegation under Vehicle Code section 10851, subdivision (a), as well as to attack defendants credibility (Evid. Code, § 1101, subd. (c)).
The trial court granted the prosecutions motion under Evidence Code section 1101, subdivision (b), to admit defendants 2004 conviction. "Although Im somewhat concerned about the fact that the People havent even obtained a copy of the police report to ascertain exactly how close in degree the conduct was in that case, several factors appear to be important in terms of similarities. To the extent that significant similarities would even be required. In both cases you have the same make and model of the vehicle; in both cases you have the defendant [a]s the driver of the vehicle; and these two incidences occurred approximately 18 months apart. [¶] So I do find that the sufficiency of similarities exist[s] for purposes of establishing the state of mind of the defendant as it relates to his knowledge that the property was stolen."
The trial court then concluded that, under Evidence Code section 352, the probative value of the evidence of defendants prior conviction outweighed any prejudice it might cause. "[O]n the prejudicial side of the equation, you have the fact that you have similar charges in both cases and you have the unlawful vehicle taking possession or operating a stolen motor vehicle. [¶] The factors that weigh on the other side of the scale are the materiality issues. . . . [T]he key issue in the case is whether the defendant knew the vehicle was stolen. It does not appear to be in dispute that a vehicle was stolen. What appears to be in dispute is whether the defendant was aware of that or was [led] to believe otherwise. [¶] Another factor that weighs on either side of the balance in favor of admissibility is that the prior is an independent act unrelated to the current incident. Also, the prior is no more inflammatory in terms of the nature of the crime that occurred in this offense because they appear to be the same type of class of crime. Also weighing in favor of admissibility the recent nature, the close proximity of time of the prior and current incident. And the final factor weighing in favor of admissibility is that the prior resulted in a conviction, as opposed to a — simply a prior act, which the People would have to prove up by conduct."
Defendant is correct in arguing that, standing alone, evidence of his prior conviction for the unlawful taking of a Nissan Maxima would not prove his knowledge that the Nissan Maxima he was driving on March 22, 2006 was stolen. When combined with the evidence that defendant observed the ignition of the car had been tampered with, the ignition key had been shaved down, a professional car thief whom defendant had met in prison loaned him the car, and defendant acted suspiciously when Porto made eye contact with him on the freeway, defendants prior conviction for unlawfully taking a vehicle was evidence of his knowledge the car he was driving was stolen.
The trial court correctly balanced the probative value of the details of the prior conviction to establish defendants knowledge the car was stolen, against the limited prejudicial impact the evidence would have. The jury was correctly instructed on the use of the evidence of defendants prior conviction for the limited purposes of proving his intent to steal the car, proving his knowledge the car was stolen, proving the prior conviction allegation under Vehicle Code section 10851, subdivision (a), and evaluating defendants credibility as a witness. We find no abuse of discretion.
Even if the trial court abused its discretion by admitting the make and model of the vehicle defendant had previously been convicted of stealing, the error would be harmless. It is not reasonably probable defendant would have obtained a more favorable verdict if the details of the prior conviction had been excluded. (People v. Watson (1956) 46 Cal.2d 818, 836.) The evidence of defendants prior conviction was admissible. It may or may not be a coincidence that the make and model of the car involved in the prior conviction was the same as the car involved in the present case. But the admission of this evidence was not so prejudicial that we can say it affected the outcome of the case. Additionally, as explained ante, there was ample evidence of defendants guilt in the present case, other than the prior conviction. Finally, the trial court properly instructed the jury on the use of the prior conviction evidence.
II.
Did defendant receive ineffective assistance of counsel?
To prevail on a claim of ineffective assistance of counsel, the defendant must prove: (1) his or her attorneys representation was deficient in that it fell below an objective standard of reasonableness under prevailing professional standards; and (2) his or her attorneys deficient representation subjected him or her to prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687; People v. Cain (1995) 10 Cal.4th 1, 28.) Prejudice means a "reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different." (Strickland v. Washington, supra, 466 U.S. at p. 694 .) A reasonable probability means a "probability sufficient to undermine confidence in the outcome." (Ibid.)
Defendant argues his counsel provided ineffective assistance in failing to renew his objection to the prior act evidence after Porto testified. We concluded, ante, the details of defendants prior conviction were not unduly prejudicial, and therefore their admission was not an abuse of discretion. Defense counsel therefore was not ineffective for failing to object again to the admission of that evidence. (People v. Price (1991) 1 Cal.4th 324, 387 ["Counsel does not render ineffective assistance by failing to make motions or objections that counsel reasonably determines would be futile"].)
III.
Is CALCRIM No. 220 constitutionally defective?
The jury was instructed on reasonable doubt with CALCRIM No. 220, as follows: "The fact that a criminal charge has been filed against the defendant is not evidence the charge is true. You must not be biased against the defendant just because he has been arrested, charged with a crime, or brought to trial. [¶] The defendant in a criminal case is presumed to be innocent. This presumption requires the People to prove each element of the crime and special allegation beyond a reasonable doubt. Whenever I tell you the People must prove something, that means they must prove it beyond a reasonable doubt. Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction the charge is true. [¶] The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence received throughout the entire trial. Unless the evidence proves the defendants guilt beyond a reasonable doubt, hes entitled to an acquittal, and you must find him not guilty."
Defendant argues CALCRIM No. 220 is constitutionally defective because it impermissibly instructs the jury it cannot consider the absence of evidence in determining whether the prosecution had met its burden of proving the elements of the crime beyond a reasonable doubt. Every case that has addressed this argument has concluded the language of CALCRIM No. 220 does not violate due process. In People v. Westbrooks (2007) 151 Cal.App.4th 1500, Division One of the Court of Appeal, Fourth Appellate District rejected an identical argument. "The sentence to which Westbrooks objects, like the remainder of CALCRIM No. 220, merely instructs the jury that it must consider only the evidence presented at trial in determining whether the People have met their burden of proof. In other words, this instruction informs the jury that the People may not meet their burden of proof based on evidence other than that offered at trial. The instruction does not tell the jury that it may not consider any perceived lack of evidence in determining whether there is a reasonable doubt as to a defendants guilt. Further, the remainder of the instructions clearly conveyed to the jury the notion that the People had the burden of proving Westbrookss guilt beyond a reasonable doubt and that the jury was required to determine whether the People had met their burden of proving all of the facts essential to establishing his guilt." (Id. at p. 1509.)
The Westbrooks court also rejected the argument — also raised by defendant here — that People v. McCullough (1979) 100 Cal.App.3d 169 supports the defendants claim. (People v. Westbrooks, supra, 151 Cal.App.4th at p. 1509.) In People v. McCullough, supra, 100 Cal.App.3d at page 182, the appellate court concluded the trial court had misled the jury by telling it that reasonable doubt must arise from the evidence, because reasonable doubt may arise from the lack of evidence. "Unlike in McCullough, the trial court in this case did not tell the jury that reasonable doubt must arise from the evidence presented at trial, and, given the courts other instructions, it would not have been reasonable for the jury to interpret CALCRIM No. 220 as stating that the jury was precluded from considering any perceived lack of evidence in determining Westbrookss guilt. [Citation.]" (People v. Westbrooks, supra, 151 Cal.App.4th at p. 1510, fn. omitted.)
The Third Appellate District has reached the same conclusion. "CALCRIM No. 220 does not suggest an impermissible definition of reasonable doubt to the jury. The instruction defines reasonable doubt as the absence of an abiding conviction in the truth of the charges. `An instruction cast in terms of an abiding conviction as to guilt, . . . correctly states the governments burden of proof. [Citation.] The instruction neither lowers the prosecutions standard of proof nor raises the amount of doubt the jury must have in order to acquit a defendant. [¶] Contrary to defendants suggestion, CALCRIM No. 220 instructs the jury to acquit in the absence of evidence. In addressing defendants claim, we consider whether a `reasonable juror would apply the instruction in the manner suggested by defendant. [Citation.] The jury is instructed to consider only the evidence, and to acquit unless the evidence proves defendants guilt beyond a reasonable doubt. If the government presents no evidence, then proof beyond a reasonable doubt is lacking, and a reasonable juror applying this instruction would acquit the defendant. [¶] Due process requires nothing more. CALCRIM No. 220 does not violate due process." (People v. Guerrero (2007) 155 Cal.App.4th 1264, 1268-1269.)
The Fifth Appellate District, too, has concluded CALCRIM No. 220 does not violate a defendants constitutional rights. "Here, the plain language of the instruction given tells the jury that `[u]nless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty. [Citation.] Identical language was given in a similar instruction, CALCRIM No. 103, at the beginning of trial. The only reasonable understanding of this language is that a lack of evidence could lead to reasonable doubt. In addition, the trial court instructed the jury with CALCRIM No. 355, which specifically stated that a defendant `may rely on [the] state of the evidence and argue that the People have failed to prove the charges beyond a reasonable doubt. [¶] Nothing about the instructions given implies to the jury that the defendant must adduce evidence that promotes reasonable doubt or that the defendant must persuade the jury of his or her innocence by evidence presented at trial. [Citation.] [¶] We see no violation of appellants federal constitutional rights in the language of CALCRIM No. 220." (People v. Flores (2007) 153 Cal.App.4th 1088, 1093.)
We agree with the analysis and conclusions of the foregoing cases. There is no constitutional violation.
DISPOSITION
The judgment is affirmed.
WE CONCUR:
ARONSON, ACTING P. J.
IKOLA, J. --------------- Notes: The jury acquitted defendant of violating Penal Code section 186.22, subdivision (a). During trial, the prosecutor had dismissed a charge of receiving a stolen vehicle, Penal Code section 496d, subdivision (a).