Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. BB724904
Mihara, J.
Defendant Franklin Marshall appeals from a judgment of conviction entered after a jury found him guilty of theft or unauthorized use of a vehicle (Veh. Code, § 10851, subd. (a)). The trial court suspended imposition of sentence and placed defendant on probation for three years. On appeal, defendant contends: (1) CALCRIM No. 1820 violated his federal and state constitutional rights to due process and trial by jury; and (2) the trial court erred in failing to instruct the jury that the defenses of mistake of fact and claim of right can negate criminal intent. We conclude that the failure to instruct on these defenses constituted prejudicial error and reverse.
All further statutory references are to the Vehicle Code unless otherwise stated.
I. Statement of Facts
A. Prosecution Case
On January 18, 2007, Officer William Torr observed defendant as the sole occupant of a Chevrolet Uplander minivan in the car pool lane on Highway 85. Officer Torr conducted a traffic stop and asked to see defendant’s driver’s license, registration, and insurance. Defendant produced his driver’s license, stated that he was driving a rental car, and gave the officer a Budget Rent A Car Systems, Inc. (Budget) rental agreement with his name on it. Officer Torr did not suspect that there was any problem with the contract. However, after the officer gave the license number of the minivan to the dispatcher, he learned that the vehicle had been stolen. Defendant was then arrested.
Alex Matos testified that he was the general manager for Budget at the San Jose International Airport (airport) from February 2006 until November 2007. According to Matos, Budget had three types of contracts: corporate leases, mini-leases, and rental agreements. Corporate leases did not apply to individual renters. A mini-lease was used for a long-term vehicle rental, that is, for a period of months. In order to obtain a mini-lease, a customer was required to make an advance reservation. Under a mini-lease agreement, the customer authorized Budget to charge his or her credit card every 30 days. If the customer wanted to continue the terms of the mini-lease, he or she was obligated to call Budget every 30 days to report the mileage for the vehicle. Budget would then close the initial contract and open a new one without the customer returning to the Budget office. A rental agreement did not require an advance reservation. However, if a customer arrived at a Budget office and wanted to rent a vehicle for longer than 30 days, he or she would enter into a rental agreement for 30 days and reservations would be set up for each successive 30-day period. In contrast to a mini-lease, a rental agreement required the customer to return to the Budget office with the vehicle to execute another contract for each 30-day period. According to Matos, Budget employees explained all contractual obligations under either the mini-lease or the rental agreement to the customer. Customers also received a copy of the mini-lease or rental agreement.
Matos identified exhibit 2, the document that defendant gave to Officer Torr, as a rental agreement from the Budget office at the airport. This agreement indicated that defendant had rented a gold Chrysler PT Cruiser on September 1, 2006, and was expected to return the vehicle on September 8, 2006. The rental agreement stated that Budget had placed an initial hold of $300 on defendant’s credit card, but this amount would not have been charged to the credit card until the vehicle was returned. The rental agreement also guaranteed defendant the same rate for 28 days, and specified the rates that would be applied if he kept the vehicle for longer than 28 days. The handwritten words “car exchange” appear in “carbon black” on the document while the date “9-15-06” is written in blue ink.
According to Matos, Budget liberally allowed vehicle exchanges as long as the vehicles were in the same class. However, if a customer wanted an upgrade from a vehicle in one class to a vehicle in a higher class, he or she would be required to pay an increased amount. Though Budget office personnel might authorize an upgrade under certain circumstances, a security guard would not have this ability because he or she did not have access to the Budget computers.
The rental agreement noted that defendant had exchanged a previously-rented vehicle, which had traveled approximately 62 miles, for the PT Cruiser on the same terms and conditions.
A PT Cruiser was considered a mid-sized vehicle, but a Chevrolet Uplander minivan was not.
Security guards were not Budget employees and were not trained on filling out rental agreements.
In addition to office personnel, Budget had an employee in a booth in its parking lot. This employee answered any questions from customers. When the customer found a different vehicle from the one that he or she had rented in the assigned parking space, the employee would check the contract and the computer, “bring it up to the booth and say this customer is in the wrong vehicle; we need to make an exchange.” There was also a private security guard, who verified that the vehicle the customer was driving matched the vehicle described in the contract in the customer’s hands. Matos acknowledged, however, that there had been occasions when customers took the wrong vehicle and the security guard let them leave.
In Matos’s opinion, the rental agreement for the PT Cruiser had been canceled, because defendant’s credit card was never charged, the car had never left the lot, and the car was rented to another individual on September 2, 2006. When a rental agreement is canceled, Budget will provide a copy of the contract to the customer for his or her records. According to Matos, a customer could exit the Budget office with a copy of the rental agreement, enter a vehicle not noted in the rental agreement, and drive to the exit. However, it was the security guard’s role to prevent a customer from leaving under these circumstances. Since Matos could account for the PT Cruiser after September 1, 2006, there was no need for Budget to contact defendant about it.
Matos also identified a document containing the history of a Chevrolet Uplander minivan with license plate No. 5UKV834. This minivan had been part of the inventory at the Budget maintenance facility on August 31, 2006, and left this facility the following day. About a week later, a routine report of Budget vehicles indicated that the minivan had not generated revenue for three or more days. Matos then attempted to locate the vehicle by checking the lot, the maintenance facility, and computer records that documented the movement of vehicles. He asked the maintenance manager if the vehicle had been in an accident and was being repaired in a private repair shop. He also investigated whether there had been a recall of the vehicle. After Matos was unable to locate the minivan, he notified the district manager and the loss prevention manager. On October 3, 2006, Matos reported to the police department that the Chevrolet Uplander minivan had been stolen.
According to Matos, it was possible that Budget’s loss prevention department called defendant about the missing minivan. Matos acknowledged that there would have been no way for the loss prevention department to associate the minivan with defendant, but he believed that defendant might have been contacted by this department. He based this belief on the fact that defendant told him that someone from Budget called him prior to his arrest and that this individual wanted to know what kind of rental car he had in his possession. This conversation occurred after defendant’s arrest.
A search was conducted of Budget’s 2006 and 2007 records for a mini-lease or rental agreement executed by defendant for the Chevrolet Uplander minivan with a license plate No. 5UKV834. There was no such record. Thus, according to Matos, Budget did not give defendant permission to take the minivan from its airport lot, to drive this vehicle on January 18, 2007, or to withhold this vehicle from Budget on that date.
B. Defense Case
Defendant testified that he contacted the Budget office at the airport about renting a car and was given a quote of $600 per month. When he indicated that he wanted to rent a car for a year, he was told to contact Budget’s mini-lease program. The mini-lease program quoted him a rate of $700 per month. On September 1, 2006, defendant went to Budget at the airport and told the employee behind the counter, Lidite Kedebe, that he wanted to rent a car “month to month for a year.” He did not know the difference between a mini-lease and a rental agreement, and no one at Budget told him about the types of contracts that were available to him. This was the first time that defendant had attempted to rent a car long-term.
After defendant showed Kedebe his driver’s license and a debit card, and provided his address and two telephone numbers, he signed a rental agreement for a 2006 Cutlass. Defendant picked up the Cutlass at 1:00 p.m., but he returned it at 9:44 p.m. after he found ants in the passenger seat. When defendant went to the counter at the Budget office, he spoke again with Kedebe, who said that she would exchange the Cutlass for another car. Defendant requested a PT Cruiser. He signed another rental agreement, which indicated the number of exchanges and identified the vehicle as a gold Chrysler PT Cruiser. The other terms and conditions remained the same.
After defendant completed the paperwork on the PT Cruiser, he went to the assigned space in the parking lot. There was a Chevrolet Uplander minivan, not a PT Cruiser, in this space. When defendant told the Budget employee posted in the parking lot about the discrepancy, he was told to “go ahead and take that car because that’s a nice car[.]” Defendant explained that he preferred the PT Cruiser because he believed it would be less expensive for gas. The employee assured him that the minivan would “get just as good gas mileage as the PT Cruiser.” Defendant thought it was “odd” that he was not required to sign another rental agreement and he “didn’t really want the van.” He also stated: “And this was my third time changing. If I was going to have to go and fight to get a different car... so I just gave in and took the car that he insisted on me taking.” Defendant then drove to the exit, where the security guard asked to see the rental agreement. When the security guard pointed out that he was supposed to have a PT Cruiser, the Budget employee told the security guard that he had authorized the exchange.
Defendant testified that he received a telephone call from Budget the next day. A young man told him that he had the wrong vehicle and asked him to return to the office. The Budget employee did not tell defendant where he should park the car. Defendant returned to the Budget office that day. Instead of driving into Budget’s return lot, he parked the minivan outside on the street in front of the Budget office. Defendant entered the office and spoke to the young man who said that he had called him. At that point, Kedebe recognized defendant, and said, “ ‘I was the one that was taking care of it.’ ” She took the contract out of the young man’s hand and told defendant that “she had taken care of it” and “everything was fine.” Defendant was under the impression that whatever error had been made had already been fixed in his absence. Defendant then left without signing another rental agreement.
Defendant kept the minivan for several months and “just figured they were taking the money out.” He had “rented from rental car companies before. They’ve waited for a couple months and take the whole amount out.” Defendant “knew that they had [his] card, so [he] knew they were going to get their money.” While the minivan was in his possession, he did not remove the stereo, take the tires or rims, or alter the vehicle in any way.
On cross-examination, defendant was asked what led him to believe that showing the September 1, 2006 document to a police officer would get him any further than it did with the security guard. Defendant explained that he did not read the document and was not sure if it was accurate. He had rented cars many times, and he had exchanged and upgraded cars. Though the rental agreement he signed on September 1, 2006 was never out of his possession, defendant did not know how the date “9-15-06” came to be written in blue ink on it. Defendant denied that he wrote the date or had someone else write it so that it would appear that he had exchanged the PT Cruiser for the Chevrolet Uplander minivan on September 15, 2006.
C. Prosecution Rebuttal
Kedebe, a customer service representative at the Budget office at the airport, testified that she did not prepare the rental agreement signed by defendant. She pointed out that the document referred to the number of a customer service representative named “Vanessa.” Kedebe denied that a customer came to the Budget office on September 2, 2006, showed her a rental agreement, and said he was in possession of the wrong car. She also denied that she told the customer not to worry about it. She explained that a car exchange requires the Budget employee to enter the computer system and print a new agreement. According to Kedebe, she would serve 60 or 70 customers on a busy day. Kedebe wears a name tag bearing her first name when she is at work and no other Lidite has worked at the Budget office during the four years preceding defendant’s trial.
Kedebe also explained that if a customer tried to leave the lot with the wrong vehicle, the security guard would send the customer back to the office. It would be “very unusual” for a security guard to allow the customer to leave with the wrong vehicle. She did not know any situations in which a Budget employee could tell a security guard to allow the customer to leave. In the event that the security guard accidentally let the wrong vehicle off the lot, Budget would contact the customer.
Maria Vanessa Bustos Arciga testified that she was a Budget counter sales representative at the airport. She acknowledged that she was involved in the preparation of the rental agreement that was signed by defendant, noting that her assigned employee number appeared at the bottom of the document. According to this document, the customer had called in advance to reserve a car and Budget’s reservation department had prepared it. Arciga was present when defendant signed the rental agreement, but she was unable to identify him at trial. It was Arciga’s “custom and habit” to explain the terms and conditions of the rental agreement. Regarding defendant’s rental agreement, she would have told him that the car was due back on September 8, that he could not keep the car longer than 28 days, and that if he wanted to keep it longer than 28 days, he would be required to return and execute another rental agreement. If the customer told her that he was in the wrong car, she would either tell him to return the car to the Budget lot and he would be given the correct car or she would generate a car exchange contract for him to sign. She has never given a customer permission to be in a car that was not listed in the rental agreement. She did not give defendant permission to be in a Chevrolet Uplander minivan. Arciga did not remember working on September 2, 2006. She also noted that she had not written “car exchange” on exhibit 2. According to Arciga, there may be as many as three or four employees working at the Budget counter. When Arciga had a question, she would ask either Kedebe or a manager. However, there was nothing difficult about exhibit 2 that would have necessitated her asking Kedebe or a manager for assistance.
Arciga testified that she has never given a customer oral permission to possess a vehicle for which there was no contract. She did not verbally or in writing give defendant permission to possess a Chevrolet Uplander minivan.
D. Defense Surrebuttal
Defendant testified that he only talked to Kedebe on September 1, 2006. He remembered her because they talked extensively about her native Ethiopia. When he returned to the Budget office the following day, he saw the young man that he talked to on the telephone. Kedebe then told the young man that she had previously dealt with defendant, so she took the contract from him and told defendant that “everything was okay.”
II. Discussion
A. CALCRIM No. 1820
Defendant contends that the third paragraph of CALCRIM No. 1820 created a mandatory presumption and improperly lowered the prosecution’s burden of proof, thereby violating his federal and state constitutional rights to due process and trial by jury. He argues that the instruction “required the jury to discount testimony regarding [his] belief that he received permission in September 2006 to rent the Chevy Uplander, testimony which cast reasonable doubt on the prosecution’s case that [he] drove the car without Budget’s consent.” He further claims that “by telling the jury that evidence of consent given in September 2006 was by itself irrelevant, the instruction permitted the jury to find [him] guilty without proof beyond a reasonable doubt of lack of consent.” We disagree.
The trial court instructed the jury pursuant to CALCRIM No. 1820 as follows: “The defendant is charged in Count 1 with unlawfully taking or driving a vehicle in violation of Vehicle Code Section 10851(a). [¶] To prove that the defendant is guilty of this crime, the People must pro[ve] that, one, the defendant took and drove someone else’s vehicle without the owner’s consent; and, two, when the defendant did so, he intended to deprive the owner of possession or ownership of the vehicle for any period of time. [¶] Even if you conclude that the owner had allowed the defendant or someone else to take or drive the vehicle before, you may not conclude that the owner consented to the driving or taking on January 18, 2007, based on that previous consent alone. [¶] A taking requires that the vehicle be moved for any distance no matter how small. [¶] A vehicle includes a passenger vehicle.” (Italics added.)
“A mandatory presumption may be either conclusive or rebuttable. A conclusive presumption removes the presumed element from the case once the State has proved the predicate facts giving rise to the presumption. A rebuttable presumption does not remove the presumed element from the case but nevertheless requires the jury to find the presumed element unless the defendant persuades the jury that such a finding is unwarranted.” (Francis v. Franklin (1985) 471 U.S. 307, 314, fn. 2.) Thus, a mandatory presumption “removes an element from the jury’s consideration and thereby lessens the prosecution’s burden to prove beyond a reasonable doubt every element of the charged offense. Instructions that relieve the state’s burden violate state and federal constitutional guarantees of due process and the rights to a jury trial and proof beyond a reasonable doubt. [Citations.]” (People v. Thompson (2000) 79 Cal.App.4th 40, 59-60.)
When a criminal defendant contends that a jury instruction is erroneous, this court inquires “ ‘whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way’ that violates the Constitution.” (Estelle v. McGuire (1991) 502 U.S. 62, 72, quoting Boyde v. California (1990) 494 U.S. 370, 380 (Boyde).) In conducting this inquiry, this court considers the challenged instruction in the context of all the instructions given by the trial court. (Boyde, at p. 378.)
Here, CALCRIM No. 1820 did not instruct the jury to presume any fact, including the element of lack of consent, if the prosecution proved certain predicate facts. Nor did it require the jury to find lack of consent unless the defendant proved the contrary. Instead, this instruction outlined the elements of the charged offense, that is, that a finding of guilt required proof that defendant took or drove the owner’s vehicle without the owner’s consent. The third paragraph of CALCRIM No. 1820 then referred to the defense of consent, not the element of the lack of consent, and informed the jury that it could not presume that the owner consented to the taking or driving of the vehicle on January 18, 2007, based solely on a finding that the owner gave consent to either defendant or someone else to take or drive the vehicle on a prior occasion. Thus, this portion of the instruction directed the jury’s attention to the issue of whether defendant was acting with the owner’s consent on a specific date. The trial court also instructed the jury on the presumption of innocence, the People’s burden of proof beyond a reasonable doubt, the definition of reasonable doubt, and that it must consider all the instructions together and decide the facts based upon the evidence. After considering the challenged portion of CALCRIM No. 1820 in the context of these instructions, we conclude that there was no “ ‘reasonable likelihood’ ” the jury misunderstood the instruction in the manner defendant suggests. (Estelle v. McGuire, supra, 502 U.S. at p. 72.)
Carella v. California (1989) 491 U.S. 263 (Carella) does not support defendant’s position. In Carella, the jury was instructed “first[,] that a person ‘shall be presumed to have embezzled’ a vehicle if it is not returned within 5 days of the expiration of the rental agreement; and second, that ‘intent to commit theft by fraud is presumed’ from failure to return property within 20 days of demand.” (Carella, at p. 265.) The United States Supreme Court held that these instructions violated the defendant’s due process rights because they imposed mandatory presumptions, which “directly foreclosed independent jury consideration of whether the facts proved established certain elements of the offenses with which Carella was charged.” (Carella, at p. 266.) As previously stated, CALCRIM No. 1820 did not impose a mandatory presumption.
In Carella, the challenged instructions advised the jury that “ ‘[i]ntent to commit theft by fraud is presumed if one who has leased or rented the personal property of another pursuant to a written contract fails to return the personal property to its owner within 20 days after the owner has made written demand by certified or registered mail following the expiration of the lease or rental agreement for return of the property so leased or rented.’ [¶]... [¶] ‘Whenever any person who has leased or rented a vehicle willfully and intentionally fails to return the vehicle to its owner within five days after the lease or rental agreement has expired, that person shall be presumed to have embezzled the vehicle.’ ” (Carella, supra, 491 U.S. at p. 264.)
B. Claim of Right and Mistake of Fact Instructions
Defendant next contends that the trial court had a sua sponte duty to instruct the jury on the defenses of claim of right (CALCRIM No. 1863) and mistake of fact (CALCRIM No. 3406). He asserts that these instructions would have informed the jury that he lacked the requisite criminal intent if he mistakenly believed in good faith that Budget had rented the minivan to him and thus he had a right to take and drive the vehicle.
1. Duty to Instruct Sua Sponte
“[E]ven in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence.” (People v. St. Martin (1970) 1 Cal.3d 524, 531.) The trial court has a sua sponte duty to instruct on defenses when it appears that the defendant is relying on such a defense or if there is substantial evidence that supports such a defense. (People v. Barton (1995) 12 Cal.4th 186, 195.) “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, quoting People v. Jones (2003) 112 Cal.App.4th 341, 351.) “Doubts as to the sufficiency of the evidence should be resolved in the accused’s favor. [Citations.]” (People v.Barnett (1998) 17 Cal.4th 1044, 1145 (Barnett); accord People v. Tufunga (1999) 21 Cal.4th 935, 944 (Tufunga).) Whether the evidence provides the necessary support for a particular defense is a question of law. (See Barnett, at p. 1145.).)
2. Claim of Right Defense
The claim of right defense is stated in CALCRIM No. 1863, which provides in relevant part: “If the defendant obtained property under a claim of right, (he/she) did not have the intent required for the crime of (theft/[or] robbery). [¶] The defendant obtained property under a claim of right if (he/she) believed in good faith that (he/she) had a right to the specific property or a specific amount of money, and (he/she) openly took it. [¶] In deciding whether the defendant believed that (he/she) had a right to the property and whether (he/she) held that belief in good faith, consider all the facts known to (him/her) at the time (he/she) obtained the property, along with all the other evidence in the case. The defendant may hold a belief in good faith even if the belief is mistaken or unreasonable. But if the defendant was aware of facts that made that belief completely unreasonable, you may conclude that the belief was not held in good faith. [¶] [The claim-of-right defense does not apply if the defendant attempted to conceal the taking at the time it occurred or after the taking was discovered.] [¶]... [¶] If you have a reasonable doubt about whether the defendant had the intent required for (theft/[or] robbery), you must find (him/her) not guilty of ___ <insert specific theft crime[s]>.”
Penal Code section 511, which codified the common law claim of right defense, states in relevant part: “Upon any indictment for embezzlement, it is a sufficient defense that the property was appropriated openly and avowedly, and under a claim of title preferred in good faith, even though such claim is untenable.” The California Supreme Court has noted that “section 511 may be read as providing a statutory claim-of-right defense to all theft-related charges, as broadened from embezzlement through the provisions of section 490a.” (Tufunga, supra, 21 Cal.4th at p. 952, fn. 4.) Thus, “ ‘ “a bona fide belief, even though mistakenly held, that one has a right or claim to the property negates felonious intent. [Citations.] A belief that the property taken belongs to the taker [citations],... is sufficient to preclude felonious intent. Felonious intent exists only if the actor intends to take the property of another without believing in good faith that he has a right or claim to it.” ’ ” (Tufunga, at p. 943, quoting Barnett, supra, 17 Cal.4th at p. 1142.) “ ‘Whether a claim of right is advanced in good faith does not depend solely upon whether the claimant believes he was acting lawfully; the circumstances must be indicative of good faith.’ [Citations.] For example, the circumstances in a particular case might indicate that although defendant may have ‘believed’ he acted lawfully, he was aware of contrary facts which rendered such a belief wholly unreasonable, and hence in bad faith.” (People v. Stewart (1976) 16 Cal.3d 133, 140 (Stewart).)
3. Mistake of Fact Defense
The mistake of fact defense is outlined in CALCRIM No. 3406, which provides: “The defendant is not guilty of ___ < insert crime[s] > if (he/she) did not have the intent or mental state required to commit the crime because (he/she) [reasonably] did not know a fact or [reasonably and] mistakenly believed a fact. [¶] If the defendant’s conduct would have been lawful under the facts as (he/she) [reasonably] believed them to be, (he/she) did not commit ___ < insert crime[s] >. [¶] If you find that the defendant believed that ___ < insert alleged mistaken fact[s] > [and if you find that belief was reasonable], (he/she) did not have the specific intent or mental state required for ___ < insert crime[s] >. [¶] If you have a reasonable doubt about whether the defendant had the specific intent or mental state required for ___ < insert crime[s] >, you must find (him/her) not guilty of (that crime/those crimes).”
When a person “commit[s] the act... charged under an ignorance or mistake of fact, which disproves any criminal intent,” he or she does not commit a crime. (Pen. Code, § 26, subd. (3).) Theft or unauthorized use of a vehicle is a specific intent crime. (People v. Moon (2005) 37 Cal.4th 1, 26.) Thus, mistake of fact is a defense to the unlawful taking or driving a vehicle if the defendant had a reasonable or unreasonable, but good faith, belief that he or she had the owner’s consent to take or drive the car. (See People v. Navarro (1979) 99 Cal.App.3d Supp.1, 10-11 [a defendant’s mistaken but good faith belief of right to possess property, whether reasonable or unreasonable, negates the element of specific intent for conviction of grand larceny].) “To determine whether a mistake of fact applies we must assume the facts were as the defendant perceived them. [Citations.]” (People v. Watkins (1992) 2 Cal.App.4th 589, 594.)
4. Analysis
The People first argue that the claim of right defense is not available to a defendant charged with a violation of section 10851, subdivision (a) because this offense does not require a specific intent to steal.
Section 10851, subdivision (a) prohibits an actual theft or an unlawful driving of another’s vehicle. Thus, this statute may be violated either by taking or driving a vehicle without the owner’s consent with the intent to either permanently or temporarily deprive the owner of title or possession of the vehicle. (§ 10851, subd. (a).) “[A] defendant convicted under section 10851(a) of unlawfully taking a vehicle with the intent to permanently deprive the owner of possession has suffered a theft conviction....” (People v. Garza (2005) 35 Cal.4th 866, 871.) However, a defendant may also violate the statute even if he or she has no intent to steal the vehicle (§ 10851, subd. (a) [“whether with or without the intent to steal the vehicle”]) and the unlawful act of driving a vehicle without the owner’s consent is not theft. (People v. Jaramillo (1976) 16 Cal.3d 752, 759, fn. 6.)
Section 10851, subdivision (a) states: “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 county jail for not more than one year or in the state prison or by a fine of not more than five thousand dollars ($5,000), or by both the fine and imprisonment.”
Here, defendant was charged and convicted of theft or unlawful driving of another’s vehicle. The information charged that “on or about January 18, 2007,” defendant committed “the crime of THEFT OR UNAUTHORIZED USE OF A VEHICLE” and that he “did drive and take a vehicle.” (Italics added.) The evidence established that defendant both took and drove the minivan. The jury was instructed that defendant was charged with “taking or driving a vehicle” and that the prosecutor was required to prove that defendant “took and drove” another’s vehicle. (Italics added.) During argument, the prosecutor focused on the driving prong of section 10851, but asked the jury to convict defendant under either prong. The verdict form stated that the jury found defendant guilty of a violation of “Vehicle Code Section 10851(a), theft or unauthorized use of a vehicle, a felony.” (Italics added.) If the jury found defendant guilty of theft of the minivan, the claim of right defense was available to him. However, it is not clear whether the jury convicted defendant of theft or of unlawfully driving the vehicle. Given this ambiguity, we shall consider whether there was sufficient evidence to support a claim of right defense in the context of the mistake of fact defense.
In the present case, defendant submitted substantial evidence, if believed by the jury, that he mistakenly believed that Budget had consented to his rental of the minivan and thus he had the right to drive it for an extended period. Defendant testified that he told Kedebe that he wanted to rent a car “month to month for a year” and she did not explain his obligations under the rental agreement. Since he did not read the rental agreement, he did not know that his rental was due in one week. He showed Kedebe his driver’s license and debit card, which were both valid. He also provided his address and two telephone numbers. Though defendant thought it was “odd” that he was not required to sign another rental agreement for the minivan, he “just gave in” and relied on the Budget employee’s directive to take the minivan rather than the PT Cruiser. The security guard then allowed defendant to leave based on the Budget employee’s representation that he had authorized the exchange. When he returned the following day, Budget employees did not require defendant to execute another rental agreement. Defendant gave Budget a valid debit card and he assumed, based on prior experiences in renting vehicles, that Budget was receiving its monthly rental fees. Moreover, defendant made no attempt to alter the minivan while it was in his possession. Defendant also denied that he had written “9-15-06” on the rental agreement. Since this evidence was sufficient to support the claim of right and mistake of fact instructions, the trial court erred in failing to so instruct the jury.
The People argue that there was insufficient evidence that defendant appropriated the minivan “openly and avowedly.” They also argue that defendant was aware of facts that made it impossible for him to subjectively believe that he had a legitimate claim of right to the minivan. They note that, despite the written terms of the rental agreement, the oral explanations by Budget employees regarding those terms, and defendant’s failure to obtain the appropriate documentation for the rental of the minivan, defendant never communicated to Budget that he planned to keep the vehicle for more than a week. Defendant also failed to pay for the rental. The People further claim that the notation “9 15 06” on the rental agreement “allowed for an inference of an attempt to deceive which might conceal the fact” that defendant had no claim of right to the minivan. However, this court cannot weigh the credibility of witnesses in determining whether there was sufficient evidence to trigger the trial court’s sua sponte duty to instruct the jury on these defenses. (Barnett, supra, 17 Cal.4th at p. 1145.) As previously stated, defendant presented evidence of defenses, if believed, that would have been sufficient for a jury to find reasonable doubt as to his guilt.
We note that it was never established who wrote this date on exhibit 2.
The People argue that any error in failing to give sua sponte instructions on claim of right and mistake of fact defenses was harmless under either Chapman v. California (1967) 386 U.S. 18, or People v. Watson (1956) 46 Cal.2d 818. In applying the less rigorous Watson standard, we conclude the error was prejudicial.
People v. Russell (2006) 144 Cal.App.4th 1415 is instructive. In Russell, this court held that the trial court’s failure to give sua sponte instructions on the defenses of claim of right and mistake of fact was state law error. (Russell, at p. 1431.) As this court explained, “[a]ppellate review under Watson ‘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.’ [Citation.] ‘There is a reasonable probability of a more favorable result within the meaning of Watson when there exists “at least such an equal balance of reasonable probabilities as to leave the court in serious doubt as to whether the error affected the result.” ’ [Citation.]” (Russell, at p. 1432.)
The People argue that the error was harmless because the jury impliedly found that defendant had the specific intent to deprive the owner of possession or ownership of the vehicle for some period of time when it returned a verdict of guilt. We reject this argument because the jury was never told that defendant’s mistaken beliefs, even if unreasonable, would have negated any criminal intent. Defendant need only have raised a reasonable doubt as to the existence of this element of the offense. As we noted in Russell, “instructions on the applicable defenses would have been more valuable to the jury than instructions regarding the elements of the offense plus attorney argument....” (Russell, supra, 144 Cal.App.4th at p. 1433.)
We also disagree with the People that there was overwhelming evidence that defendant was aware of his responsibilities under the rental agreement. Defendant testified that he had asked for a long-term rental, and he did not then read the rental agreement to determine that he had received such an agreement. He also testified that no one had orally explained his obligations under the various types of agreements. That Budget employees did not act in accordance with their customary practices was corroborated by Matos’s testimony that security guards had previously allowed customers to leave with the wrong vehicle. Moreover, exhibit 2 did not specify the customer’s obligations in the event that he or she wanted to retain the car for longer than 28 days. It was also undisputed that defendant provided Budget with a valid debit card and accurate information for contacting him. Thus, the evidence of defendant’s mistaken beliefs was relatively strong. Thus, we conclude that it is reasonably probable defendant would have obtained a more favorable result if the trial court had instructed the jury on the claim of right and mistake of fact defenses.
III. Disposition
The judgment is reversed.
WE CONCUR: Elia, Acting P. J., McAdams, J.