Opinion
G052781
05-15-2017
THE PEOPLE, Plaintiff and Respondent, v. TAIDE BIBIANO LORENZO, Defendant and Appellant.
Kevin Smith, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Karl T. Terp, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15HF0618) OPINION Appeal from a judgment of the Superior Court of Orange County, Cheri T. Pham, Judge. Affirmed in part, reversed in part. Kevin Smith, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Karl T. Terp, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant, Taide Bibiano Lorenzo of all five counts with which he was charged: (1) first degree burglary of an inhabited dwelling, a felony (Penal Code, §§ 459, 460, subd. (a) (count 1); all further statutory references are to the Penal Code unless otherwise stated); (2) unlawful driving or taking of a vehicle, a felony (Veh. Code, § 10851, count 2); (3) possession of methamphetamine (Health & Saf. Code, § 11377); (4) prowling (§ 647, subd. (h)); and (5) peeking (§ 647, subd. (i)). On count 1, the jury also found true the enhancement allegation pursuant to section 667.5, subdivision (c)(21), that the residence was occupied during the burglary. The trial court suspended sentence and placed Defendant on probation for three years, including 364 days in jail.
Defendant advances two arguments on appeal. First, as to count 2, he contends there was insufficient evidence he had the required intent to deprive the owner of title to or possession of the vehicle as required by Vehicle Code section 10851. We disagree. Second, as to count 1, he contends there was insufficient evidence to support the jury's finding the residence was occupied during the commission of the burglary. We agree and therefore reverse the burglary enhancement. Otherwise, we affirm.
FACTS AND PROCEDURAL HISTORY
On June 1, 2015, Jose Lozano parked his 1985 Toyota truck on the street in front of his house in Anaheim. He possessed the Toyota's only set of keys and gave no one permission to drive it. In it was a pair of gardening gloves. The Toyota had a front license plate, but it was missing a rear license plate. When he woke up the next morning, the Toyota was gone. Lozano does not know defendant.
Seven days later during the early evening on June 8, Alexander Khaytovich observed defendant standing next to Lozano's Toyota in Newport Beach. The Toyota was parked behind Khaytovich's cars. Defendant drove away then returned a short while later. Khaytovich attempted to talk to defendant, but defendant spoke Spanish and was not particularly coherent. Khaytovich called the Newport Beach Police Department to investigate. Defendant got into the Toyota and drove away.
On the same evening, Christopher Kinman, who lived in a nearby condominium, heard his dogs barking in the back near the door to his rear patio. Kinman found defendant standing outside. They stared at each other and then Kinman screamed some obscenities. Defendant was wearing gardener's gloves but never tried to enter Kinman's home. Defendant told Kinman to close his garage door. When Kinman looked up after picking up his dogs, defendant was gone. The encounter, which Kinman described as bizarre, lasted less than one minute.
Michael Hill and his girlfriend lived in a nearby condominium, and while they were eating dinner between 8:30 p.m. and 9:00 p.m., they heard Kinman's dogs barking loudly. Hill heard someone open the front door and heard his girlfriend say, "hey, who are you?" Hill got up and went to the front door and saw defendant wearing gardening gloves. He said he was there to work on a roof and to work on a car. He handed Hill a garage door opener and a set of keys. Hill's girlfriend called 911, and Hill walked defendant outside to chat with him until police arrived.
Hill recognized the garage door opener as one which he and the other residents used. When Hill activated the button, the garage door of his next door neighbor, Mina Pourshoheil, started to close. Hill used the garage door opener to reverse the garage door, and he and defendant walked into Pourshoheil's garage. Pourshoheil's car was in the garage, which is attached to her condo but does not offer direct access. Hill attempted to start Pourshoheil's car with the keys, but they did not fit in the ignition.
At 8:51 p.m., police arrived and took over. When police first encountered defendant, he was holding a black hat and a set of keys, and he was wearing gloves. He also had a black folding knife underneath the hat. One of the officers asked a neighbor to go get Pourshoheil, and at that point she came out of her condominium. Another officer tried to find a vehicle to match the set of keys found on defendant. After conducting a patrol around the neighborhood to see if the electronic key fob would unlock any cars, the officer was unable to locate a match.
The officer did, however, locate the stolen Toyota on the next street over. It had two different license plates on the front and back. The back license plate was registered to Serbino Ortiz, but police were not able to locate him, and the license plate had not been reported stolen. The Toyota had been left with a set of keys in the ignition, but the engine was off and all the windows were down. It was parked in a way that blocked driveways and the entrance to someone's stairs. Curiously, the officer testified she could not recall whether the keys in the ignition were able to start the Toyota.
Before the trial began, the People learned Pourshoheil had been transported to the hospital, but the People decided to move forward and considered taking her testimony out of order at some point. In the end, Pourshoheil did not testify, but the parties stipulated to the following facts: "[Pourshoheil] lives at number one Swift Court, Newport Beach, California. [¶] [Pourshoheil] does not know [defendant] and he did not have permission to be in her garage or to have possession of her garage door opener. [¶] [Pourshoheil] keeps a garage door opener in the driver's side of her RAV4 in her garage. [¶] [Pourshoheil] inspected her garage and no other property was missing or disturbed."
After the People rested, defendant's counsel brought a motion for acquittal under section 1118.1 concerning the burglary enhancement. Counsel argued there was no evidence that Pourshoheil was actually in the home during the residential burglary. The People argued there was no evidence Pourshoheil was not home and her car was parked in the garage when the garage door opener was taken. The court denied the motion.
DISCUSSION
1. There Was Sufficient Evidence of Intent on Count 2.
Defendant first contends there was insufficient evidence he had the intent required to prove he violated Vehicle Code section 10851. On this point we "must determine '"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."'" (People v. O'Dell (2007) 153 Cal.App.4th 1569, 1577 (O'Dell).)
A conviction may be sought under subdivision (a) of Vehicle Code section 10851 either for unlawful taking of a vehicle with the intent to permanently deprive the owner of possession or for unlawful driving of a vehicle when the driving occurs or continues after the theft is complete (posttheft driving). (People v. Garza (2005) 35 Cal.4th 866, 871.) The specific intent to deprive the owner of possession of his vehicle may be inferred from all the facts and circumstances of the particular case. (O'Dell, supra, 153 Cal.App.4th at p. 1577.)
As explained in Garza, Vehicle Code section 10851, subdivision (a) "'proscribes a wide range of conduct.' [Citation.] A person can violate section 10851(a) 'either by taking a vehicle with the intent to steal it or by driving it with the intent only to temporarily deprive its owner of possession (i.e., joyriding).'" (Garza, supra, 35 Cal.4th at p. 876.) Here, based on the totality of the suspicious circumstances of defendant's activities on the evening of June 8, 2015, a rational trier of fact could have inferred defendant intended to permanently or temporarily deprive Lozano of his Toyota. At a minimum a jury could reasonably have concluded defendant was "joyriding" in it.
Lozano never gave defendant permission to drive the Toyota, and Lozano does not know him. Several residents in the condominium complex observed defendant lurking around the area with no apparent reason for being there. Twice he parked the Toyota askew. He was seen driving the Toyota and wearing gardening gloves, and gardening gloves had been in the Toyota when it was stolen. The Toyota was missing a rear license plate when it was taken, but it had a rear license plate affixed when it was located. The front and rear license plates did not match. While there was no evidence connecting defendant with stealing or replacing the rear license plate, the circumstantial evidence supports an inference defendant knew the Toyota was stolen. And even though knowledge a vehicle was stolen is not an element of the offense of which defendant was convicted, it is one of various alternative factors evidencing an intent to deprive the owner of title and possession. (People v. Green (1995) 34 Cal.App.4th 165, 180.)
Defendant relies on People v. Najera (2008) 43 Cal.4th 1132 (Najera) and People v. Gherna (1947) 80 Cal.App.2d 519 (Gherna). Neither lends support.
In Najera, the sole issue on appeal was whether the trial court erred in failing to instruct the jury sua sponte that recent possession of stolen property alone is insufficient to establish guilt of theft-related offenses. (Najera, supra, 43 Cal.4th at pp. 1135-1136.) While the court recognized possession of recently stolen property, if uncorroborated, is insufficient to establish guilt of a theft-related offense under Vehicle Code section 10851, the insufficiency derives from the general rule governing a jury's consideration of circumstantial evidence. (Najera, at p. 1138.) And in Najera, the jury had been instructed on how to weigh circumstantial evidence. (Ibid.) Under these circumstances, the trial court had no duty to give another specific instruction. (Ibid.)
Here too, the jury was instructed on how to weigh circumstantial evidence. Defendant does not argue instructional error, so Najera is not particularly helpful to defendant other than to state a general rule regarding possession of stolen property. Further, defendant did more than possess the Toyota. He used it to drive around the condominium complex while he committed other criminal acts.
In Gherna, the defendant was convicted of violating former Vehicle Code section 503, which also required proof of specific intent to deprive the owner of title or possession. (Gherna, supra, 80 Cal.App.2d at pp. 519-520, 522.) In reversing the conviction for insufficiency of evidence showing intent, the appellate court stated, "appellant took the car, drove it three and three tenths miles and then abandoned it." (Id. at p. 525.) However, the court relied on the report of a psychiatrist who had been appointed to report on the defendant's sanity because he claimed memory loss from that evening. The psychiatrist opined the defendant "'suffered such a marked alteration of consciousness as to have rendered him totally irresponsible for his behavior. He was therefore unable to form a conscious intent, and was totally devoid of the capacity to distinguish right and wrong, or to know the nature and quality of his acts.'" (Ibid.)
Here, there are no facts defendant claimed memory loss, and there was no expert testimony he lacked the ability to form intent. Gherna does not assist defendant. 2. There Was Insufficient Evidence of an Occupied Residence on Count 1.
Defendant fares better on his second argument, regarding the burglary enhancement. He contends there was insufficient evidence there was a person present in an inhabited dwelling when he took the garage door opener. We agree.
The jury found true the allegation a person was present in the residence above the garage at the time defendant took the garage door opener. The enhancement transformed the first degree residential burglary from a "serious" felony under section 1197.12, subdivision (c)(21), into a "violent" felony under section 667.5, subdivision (c)(21), which provides, "[a]ny burglary of the first degree, as defined in subdivision (a) of Section 460, wherein it is charged and proved that another person, other than an accomplice, was present in the residence during the commission of the burglary."
The People failed to prove Pourshoheil was in her home at the time defendant entered her garage and removed her garage door opener. This occurred some time before police arrived at 8:51 p.m., because defendant handed the garage door opener to Hill before police were called. The evidence shows a neighbor contacted Pourshoheil in her residence above the garage at the request of police. While she was at home when summoned, the evidence is silent as to where she was before then. The People failed to call Pourshoheil to testify, instead offering a stipulation concerning her testimony. The stipulation recited her address and stated she does not know defendant, she did not give him permission to be in the garage or to possess her garage door opener, and that she kept her garage door opener in the driver's side of her RAV4 in the garage.
If Pourshoheil was occupying her residence before police arrived, the prosecutor could have included that critical fact in the stipulation or called Pourshoheil to testify. Having failed to do either, the evidence was insufficient to support the burglary enhancement.
DISPOSITION
The judgment is reversed as to the burglary enhancement only and affirmed in all other respects.
THOMPSON, J. WE CONCUR: BEDSWORTH, ACTING P. J. MOORE, J.