Opinion
E051316 Super.Ct.No. FVI1000710
11-17-2011
THE PEOPLE, Plaintiff and Respondent, v. KELLY MARIE MATTERN, Defendant and Appellant.
Suzanne G. Wrubel, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., and Susan Miller, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of San Bernardino County. Eric M. Nakata, Judge. Affirmed.
Suzanne G. Wrubel, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., and Susan Miller, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Kelly Marie Mattern took off with an acquaintance's car while the acquaintance was asleep. Five days later, the police located her, still in possession of the car.
A jury found defendant guilty on one count of receiving a stolen motor vehicle. (Pen. Code, § 496d, subd. (a).) In a bifurcated nonjury trial, a sentencing allegation that defendant had previously been convicted of receiving a stolen motor vehicle as a felony (Pen. Code, § 666.5, subd. (a)) was found true. Two 1-year prior prison term enhancements (Pen. Code, § 667.5, subd. (b)) were also found true. Defendant was sentenced to a total of six years in prison.
Defendant contends that the trial court erred by:
1. Excluding evidence that defendant and the victim had "a sexual or intimate relationship."
2. Excluding evidence that defendant asked the arresting officer to get "my keys."
3. Failing to instruct, sua sponte, that theft requires the intent to permanently deprive.
4. Failing to give a flight instruction.
We find no prejudicial error. Hence, we will affirm.
I
FACTUAL BACKGROUND
Jessica Lucia met defendant in January 2010. Lucia testified that she and defendant were "[n]ew friends" who "hung out a couple times and had a few drinks."
Defendant did not own a car. Lucia owned two cars — a 2000 Toyota Celica and a 2008 Toyota Corolla. Lucia gave defendant permission to drive the Corolla only once, to go buy beer. She had never given defendant permission to drive the Celica.
About a month before the crime, defendant took the Celica without Lucia's permission. Lucia phoned her and told her to bring it back, or else she would report it stolen. Defendant brought it back, apologized, and said she would never do it again.
About two weeks before the crime, defendant said she wanted to use the car. She was upset that Lucia's boyfriend was allowed to drive the car, but she was not. Lucia refused.
On March 26, 2010, defendant came over to Lucia's house. They were planning to go out. Lucia decided to stay home, however, because her baby was not feeling well. Defendant got upset. Lucia suggested that they have a couple of drinks together at the house. Defendant agreed to "hang out and check her e-mail and play on the Internet."
Between 9:00 and 10:00 p.m., Lucia fell asleep. When she woke up, around 1:00 a.m., defendant, the key to the Celica, and the Celica were all gone. Lucia called the police and reported the car stolen. She could not call defendant, because defendant's cell phone was disconnected. Lucia testified that she contacted defendant's family and "everybody on [defendant's] MySpace and Facebook . . . looking for my car."
The record is ambiguous with respect to whether it was disconnected before or only after the taking.
Even though defendant lived in an apartment of her own, on March 26 or 27, she started staying with one Donna Casarez. Defendant was a friend of Casarez's daughter. When defendant arrived, she was driving the Celica. She continued to drive it during her stay. She told Casarez that it belonged to her.
On March 31, a police officer spotted the Celica in Casarez's driveway. He knocked on the front door. When Casarez answered, she told him that the car belonged to defendant.
While staying with Casarez, defendant slept in Casarez's daughter's bedroom and used a bathroom in the hall. The officer, however, found defendant in a bathroom attached to the master bedroom. Defendant was fully clothed and not apparently doing anything in particular in the bathroom. Casarez testified that, while she was answering the door, defendant must have gone "from my daughter's bedroom to my bedroom."
Initially, defendant told the officer her name was Stacy. Eventually, she admitted her true name.
II
THE EXCLUSION OF EVIDENCE CONCERNING
THE RELATIONSHIP BETWEEN THE VICTIM AND DEFENDANT
Defendant contends that the trial court erred by excluding evidence that she and the victim had "a sexual or intimate relationship . . . ."
A. Additional Factual and Procedural Background.
In a brief filed during trial, defense counsel sought leave to call three witnesses (Christina Soriano, Vicky Stivers, and Stacey Lopez) to testify to hearsay statements that defendant had made to them. Taken collectively, these statements were to the effect that the victim was defendant's "girlfriend"; they were having an "affair"; and defendant had been in the process of buying the car from the victim when the victim spotted some hickies on her neck and, in a jealous bid for revenge, falsely reported the car stolen.
The defense brief argued that these hearsay statements would be "corroborated" by the testimony of one Joshua Rozier "that he saw the victim enter the bedroom, followed by the defendant, and that he thereafter looked into the bedroom and saw them in bed together."
Apparently Rozier was the victim's boyfriend.
The trial court excluded the three witnesses' testimony as hearsay. It indicated, however, that if defendant testified, it would "probably" admit it.
Defense counsel then made the following offer of proof: "[T]hese witnesses would testify that there was a relationship from January until the arrest. It may have been a physical relationship. And that it was an ongoing relationship. That they saw the two of them together. Mr. Ro[z]ier saw the two of them go to bed together." He argued, "[I]f, in fact, that relationship existed, it lends more credence to the idea that the victim gave or loaned the car to my client."
The trial court ruled that this evidence was irrelevant unless and until defendant testified. Defendant elected not to testify.
B. Analysis.
Defendant's statements to the three witnesses were properly excluded as hearsay. Defendant does not argue otherwise.
According to defense counsel's offer of proof, all that the three witnesses could testify to, based on personal knowledge, was that defendant and the victim had an "ongoing relationship" between January and March and that the witnesses "saw the two of them together." This was perfectly consistent with the victim's testimony. It did not tend to support an inference that the victim gave defendant permission to take the car.
Defense counsel also offered to prove that "[i]t may have been a physical relationship." Leaving aside Rozier's proffered testimony, the trial court could properly exclude this as speculation on the part of the three witnesses.
Rozier's testimony that he saw defendant and the victim in bed together presents a closer question. According to defense counsel's offer of proof, Rozier's testimony would not establish whether the goings-on in bed were sexual or nonsexual. To go from the premise that the victim was seen in bed with defendant to the conclusion that the victim gave defendant permission to take her car would require a speculative leap. This is particularly true in light of the victim's firm denial that she ever gave defendant permission. And, as the trial court evidently felt, it was speculative in the absence of any affirmative testimony by defendant that she did have permission.
"'[T]he trial court has considerable discretion in determining the relevance of evidence. [Citations.]' [Citation.]" (People v. Clark (2011) 52 Cal.4th 856, 892.) "Evidence is irrelevant . . . if it leads only to speculative inferences. [Citation.]" (People v. Morrison (2004) 34 Cal.4th 698, 711.)
In People v. Stitely (2005) 35 Cal.4th 514, the defendant was charged with sodomy murder. (Id. at p. 522.) There was evidence that the victim's blood alcohol level was 0.26 percent. (Id. at p. 548.) The defendant sought to introduce "expert testimony that would establish: (1) the amount of alcohol [the victim] consumed the night she was killed based on her height, weight, and blood-alcohol content, (2) the general effect of that blood-alcohol content in lowering a person's sexual 'inhibitions,' and (3) the general likelihood that a person whose inhibitions had been lowered in this manner would have consented to sexual relations." (Id. at p. 549.)
The Supreme Court held that the trial court properly excluded this evidence as irrelevant: "Nothing in the offer of proof showed how [the victim]'s blood-alcohol content and intoxication affected her judgment and behavior the night she was killed, or increased the chance that she did, in fact, consent to vaginal and anal intercourse. Defendant essentially wanted jurors to speculate on intoxication, inhibition, and impulse. Speculative inferences are, of course, irrelevant. [Citation.]" (People v. Stitely, supra, 35 Cal.4th at pp. 549-550.)
Here, similarly, defendant did not offer to prove that the relationship between defendant and the victim was actually so close that the victim would have given defendant permission to take her car. The trial court could reasonably conclude that this evidence merely invited the jury to speculate. Even assuming that we might have ruled differently in the first instance, we cannot say that this was an abuse of discretion.
Defendant argues that the evidence would have been relevant to show bias. Defense counsel did not argue this theory of relevance below; hence, it has been forfeited. (Evid. Code, § 354, subd. (a).) In any event, to infer bias from the mere fact that defendant and the victim has been seen together once in bed would also be speculative. Indeed, it is not at all clear whether the logical inference would be a negative bias or a positive bias — which would have helped the prosecution.
Defendant also argues that the evidence would have been relevant to impeach the victim. Once again, defense counsel forfeited this theory by failing to raise it below. We also note that defense counsel never actually asked the victim whether she and defendant were lovers or even whether they had ever been in bed together. Thus, Rozier's testimony would not have squarely contradicted any of the victim's testimony.
Finally, in her reply brief, defendant argues that the evidence was relevant to show that she lacked the intent to permanently deprive. Yet again, defense counsel did not argue this theory below. And finally, this inference, too, would be highly speculative.
We therefore conclude that the trial court did not abuse its discretion by excluding any of this evidence.
III
EXCLUSION OF EVIDENCE THAT DEFENDANT ASKED FOR "MY KEYS"
Defendant contends that the trial court erred by excluding evidence that she asked the arresting officer to get "my keys."
A. Additional Factual and Procedural Background.
Defense counsel sought to introduce the fact that defendant said to the arresting officer, "Please get my keys." The prosecutor objected based on hearsay. Defense counsel conceded that the evidence was hearsay but argued that he was entitled to introduce it as a matter of due process. (See Chambers v. Mississippi (1973) 410 U.S. 284, 298-303 [93 S.Ct. 1038, 35 L.Ed.2d 297].) The trial court sustained the objection.
At one point, defense counsel did say, "It's not hearsay. It's a statement of what she did." However, it is not at all clear which statement by defendant he was referring to. The context suggests that it was the statement the prosecution was trying to introduce in which she falsely identified herself as Stacy. Ultimately, defense counsel agreed that defendant's request for the keys was hearsay.
Defense counsel then argued that the evidence was admissible under the state of mind exception. (Evid. Code, § 1250, subd. (a).) The trial court ruled that it was not admissible under this exception because it was not sufficiently trustworthy. (See Evid. Code, § 1252.)
B. Analysis.
Defendant argues that her request for "my keys" was not hearsay. Preliminarily, the People respond that her trial counsel forfeited this contention by failing to raise it below. Defendant, anticipating this response, also argues that any such forfeiture would necessarily constitute ineffective assistance. We agree that, if the request was not hearsay, defense counsel's failure to raise this argument at trial was objectively unreasonable. He fought, across 19 pages of transcript, to get the evidence in. Obviously, if this argument is viable, he had no tactical purpose for not raising it. Hence, we must consider whether the request was hearsay.
Defendant relies on People v. Jurado (2006) 38 Cal.4th 72. There, the defendant and one Shigemura allegedly conspired to commit murder. (Id. at pp. 81-82.) Witness Baldwin testified that Shigemura asked him if he could get her a "gat," because "she had a problem she needed to take care of." (Id. at pp. 84, 116.) Later, Shigemura told Baldwin, "'I no longer need what it was I asked you for. We took care of the problem and we dumped the body at Balboa Park.'" (Id. at pp. 86, 116.) The trial court overruled the defendant's hearsay objections to Shigemura's statements. (Id. at p. 116.)
The Supreme Court held that Shigemura's request for a "gat" was not hearsay: "[A]n out-of-court statement is hearsay only when it is 'offered to prove the truth of the matter stated.' [Citation.] Because a request, by itself, does not assert the truth of any fact, it cannot be offered to prove the truth of the matter stated. [Citation.]" (People v. Jurado, supra, 38 Cal.4th at p. 117.) It also held, however, that Shigemura's explanation that "she had a problem she needed to take care of" was inadmissible hearsay (although its admission was not prejudicial). (Id. at pp. 117-118.) Finally, it held that Shigemura's statement, "'We took care of the problem and we dumped the body at Balboa Park,'" was hearsay, but it was admissible under the adoptive admission exception, because the defendant had been present at the time. (Id. at p. 117.)
Jurado does not stand for the proposition that a request can never be hearsay. Indeed, in Jurado itself, the part of Shigemura's request in which she explained that she needed to take care of a "problem" was held to be inadmissible hearsay.
People v. Garcia (2008) 168 Cal.App.4th 261 held that a request can be implied hearsay. There, defendant Ojito's cellmate Thompson wrote two jailhouse notes — "kites," or, in Spanish, "wilas." Wila 1 threatened prospective witnesses. Wila 2 was addressed to defendant Ojito (see id. at p. 268); it said, "Do you remember that kite that I wrote . . . they are tripping in court that I'm doing or did you a favor on that. . . . So if my attorney Gretchen goes over there, tell her that someone else wrote it, not us or me." (Id. at pp. 286-287.)
The court acknowledged, citing Jurado, that "[r]equests and words of direction generally do not constitute hearsay." (People v. Garcia, supra, 168 Cal.App.4th at p. 289.) It also noted, "The statement in Wila 2 that 'they are tripping in court that I'm doing or did you a favor on that' expressly asserts that 'they are tripping in court'; it does not expressly assert that Thompson actually did Ojito the favor that others were 'tripping' about in court." (Id. at p. 288.)
"However," it continued, "these statements reasonably can be viewed as implied hearsay. '[E]vidence of an express statement of a declarant is . . . hearsay evidence if such evidence is offered to prove — not the truth of the matter that is stated in such statement expressly — but the truth of a matter that is stated in such statement by implication.' [Citation.]" (People v. Garcia, supra, 168 Cal.App.4th at p. 289.) It concluded: "The implied hearsay assertions reasonably inferred from Wila 2 are that Thompson wrote Wila 1 as a favor to Ojito, and that Ojito requested, authorized or participated in the writing of Wila 1." (Ibid.)
Whether something is hearsay or not depends on what it is being offered to prove. (See Evid. Code, § 1200, subd. (a).) Here, if defendant's request had been offered, for example, to explain why the officer gave her the keys, it would not be hearsay. Defendant, however, was offering it to prove the truth of her own implied assertion that the keys were, in fact, "her keys." When offered for that purpose, it was hearsay.
Defendant also argues that the statement was admissible as nonhearsay circumstantial evidence of her mental state. The applicable rule is that "[i]f an utterance, regardless of its truth or falsity, justifies an inference concerning the declarant's mental state (e.g., belief, intent, motive), it may be admissible as circumstantial evidence of that mental state. [Citations.]" (1 Witkin, Cal. Evidence (4th ed. 2000) Hearsay, § 37, p. 719, italics added, other italics omitted.) Here, if defendant was lying — if she was falsely describing the keys as hers — her request would be irrelevant.
We therefore conclude that the trial court did not err by excluding evidence of defendant's request to the officer. We further conclude that defense counsel did not render ineffective assistance by failing to argue that the request was not hearsay.
IV
FAILURE TO INSTRUCT ON THE INTENT TO PERMANENTLY DEPRIVE
Defendant contends that the trial court erred by failing to instruct, sua sponte, that theft requires the intent to permanently deprive.
"A trial court must instruct sua sponte 'only on those general principles of law that are closely and openly connected with the facts before the court and necessary for the jury's understanding of the case. [Citation.]' [Citation.]" (People v. Zamudio (2008) 43 Cal.4th 327, 370, italics omitted.) Thus, at least ordinarily, when a defendant is charged with receiving stolen property, the court does not have to instruct that the person who stole the property had to have acted with the intent to permanently deprive. (See CALCRIM No. 1750.)
Admittedly, People v. MacArthur (2006) 142 Cal.App.4th 275 held that, when the defendant is charged with receiving stolen goods, an instruction on the intent to permanently deprive must be given sua sponte if "[t]he evidence at trial called into question whether any relevant participant had the requisite intent." (Id. at p. 280; see also Bench Note to CALCRIM No. 1750 (2009-2010), p. 1228 ["[i]f there are factual issues regarding whether the received stolen property was taken with the intent to permanently deprive the owner of possession, the court has a sua sponte duty to instruct on the complete definitions of theft" (boldface omitted)].)
In this case, the evidence left no room for doubt that defendant had the intent to permanently deprive. She was well aware that she was not allowed to drive the Celica, and that the victim would deem it stealing if she did. The victim had never allowed her to drive it. Defendant had driven it once anyway, without the victim's permission; she had not returned it until the victim threatened to report it stolen. Two weeks earlier, she had asked to drive the car, and she had gotten "upset" when the victim told her no.
Admittedly, the victim had allowed defendant to drive her Corolla. This fact, however, was relevant solely to whether defendant had (or thought she had) permission to take the Celica. Once the jury found, based on extensive contrary evidence, that defendant did not have permission, this fact was simply irrelevant to whether she intended to return the Celica.
After taking the car, defendant at least temporarily vacated her own apartment; she went to stay with Casarez. Meanwhile, in an effort to find the car, the victim contacted defendant's family and "everybody on [defendant's] MySpace and Facebook," but with no success. While staying with Casarez, defendant continued to drive the Celica. Obviously, she did not take it to use it on some one-shot errand. She was hiding out, trying to avoid being captured and to hang onto the car for as long as possible.
Finally, defendant told Casarez that the car belonged to her. That is flatly incompatible with any intent to return the car. It would make it too hard to explain later to Casarez why she no longer had the car.
Certainly, despite all this evidence, one may speculate that defendant intended to return the car. Similarly, one may speculate that defendant was mentally ill and entertained the delusion that the car was hers, or that the victim had an identical twin who gave defendant permission to take the car. But speculation is not evidence — much less substantial evidence. And "[t]he trial court's duty to instruct on general principles of law and defenses not inconsistent with the defendant's theory of the case arises only when there is substantial evidence to support giving such an instruction. [Citation.]" (People v. Crew (2003) 31 Cal.4th 822, 835.)
Separately and alternatively, even assuming it was technically error not to instruct on the intent to permanently deprive, the error was harmless. "[W]e must ultimately look to the evidence considered by defendant's jury under the instructions given in assessing the prejudicial impact or harmless nature of the error." (People v. Harris (1994) 9 Cal.4th 407, 428.) Given the overwhelming evidence, discussed above, even if the assertedly omitted instruction had been given, there can be no doubt that the jury would have found that defendant did, in fact, have the intent to permanently deprive.
V
FAILURE TO GIVE A FLIGHT INSTRUCTION
Defendant contends that the trial court erred by failing to give a flight instruction.
The standard flight instruction, CALCRIM No. 372, provides: "If the defendant fled [or tried to flee] (immediately after the crime was committed/ [or] after (he/she) was accused of committing the crime), that conduct may show that (he/she) was aware of (his/her) guilt. If you conclude that the defendant fled [or tried to flee], it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled [or tried to flee] cannot prove guilt by itself."
Under Penal Code section 1127c, the trial court must give a flight instruction whenever "evidence of flight of a defendant is relied upon as tending to show guilt . . . ."
"'[A] flight instruction is proper whenever evidence of the circumstances of defendant's departure from the crime scene or his usual environs, . . . logically permits an inference that his movement was motivated by guilty knowledge.' [Citation.]" (People v. Lucas (1995) 12 Cal.4th 415, 470.)
The People argue that there was insufficient evidence of flight. We disagree. First and foremost, as we noted in part IV, ante, there was evidence that, immediately after the crime, defendant avoided going home to her apartment and went to stay with Casarez instead.
In addition, as defendant argues, there was evidence that, when the arresting officer arrived at Casarez's house, defendant hid in the master bathroom. In closing argument, the prosecutor argued that defendant was "[f]ound . . . hiding from the cops." A flight instruction is appropriate when there is evidence that the defendant fled from the police, even if not specifically from the crime scene. (People v. Sanchez (1939) 35 Cal.App.2d 231, 237; e.g., People v. Moringlane (1982) 127 Cal.App.3d 811, 821-822 [Fourth Dist., Div. Two].)
The People argue that defendant was not necessarily hiding; maybe she was in the master bathroom for perfectly innocent reasons. Of course, this is squarely counter to the position that the prosecutor took below. In any event, "[t]he evidentiary basis for the flight instruction requires sufficient, not uncontradicted, evidence. [Citation.]" (People v. Richardson (2008) 43 Cal.4th 959, 1020.) Here, there was sufficient evidence that defendant was hiding in the bathroom to avoid arrest.
Accordingly, the trial court should have given a flight instruction. The error, however, was harmless. Normally, the People are the ones who want a flight instruction; the defendant does not. The issue usually comes up on appeal only because the trial court has given the instruction. The defendant then argues that the instruction was prejudicial, because it suggested to the jury that he or she fled.
Defendant has not cited, and our research has not revealed, any case holding that the failure to give a flight instruction was reversible error.
In People v. Williams (1960) 179 Cal.App.2d 487, the court held that failure to give a flight instruction was harmless: "While the instruction on flight should have been given by the court on its own motion[,] . . . its omission was more favorable than harmful to [the defendant]. We believe that in view of the fact that appellant admitted he drove [the perpetrator] from the scene of the crime an instruction on flight could only have been more damaging to his defense." (Id. at p. 491.)
In People v. Roy (1971) 18 Cal.App.3d 537, disapproved on other grounds in People v. Ray (1975) 14 Cal.3d 20, 32 the court similarly held that failure to give a flight instruction was harmless: "The instruction could have been more helpful to the prosecution than to the defendant. In the circumstances of the present case the failure to give the instruction, if error, was clearly nonprejudicial." (Id. at p. 551.)
We therefore conclude that, although the trial court erred, the error is not reversible.
VI
CUMULATIVE PREJUDICE
Finally, defendant asks us to consider whether any errors by the trial court were cumulatively prejudicial.
We have found that the trial court erred by failing to give a flight instruction (see part V, ante). We have also identified a potential error, on a separate and alternative basis, in the trial court's failure to instruct on the intent to permanently deprive (see part IV, ante). These two errors, however, were unrelated. Neither was likely to increase the prejudicial effect of the other. Indeed, defendant does not even attempt to explain how the failure to give a flight instruction could have contributed to the prejudice caused by any other asserted error. Thus, even when considered together, they were not prejudicial.
VII
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
J.
I concur:
CODRINGTON
J.
MCKINSTER, J., Dissenting.
I respectfully dissent. I would reverse the conviction because, under the circumstances of this case, the trial court's failure to define theft is not harmless beyond a reasonable doubt.
A trial court must, "even in the absence of a request, instruct on general principles of law that are closely and openly connected to the facts and that are necessary for the jury's understanding of the case." (People v. Carter (2003) 30 Cal.4th 1166, 1219.) A conviction for possession of stolen property requires a finding that the property was stolen, i.e., that it was taken from its owner with the intent to deprive the owner permanently of the property. Accordingly, in People v. MacArthur (2006) 142 Cal.App.4th 275, the court held that where the evidence raised a question as to whether the property which was the subject of a charge of receiving or possessing stolen property had been stolen, the trial court had a sua sponte duty to instruct the jury with the definition of "stolen" and "theft." (Id. at p. 280.) The trial court's failure to do so "[left] the jury with no basis for determining whether the [property] had been stolen." (Ibid.)
In People v. MacArthur, supra, 142 Cal.App.4th 275, the evidence showed that the defendant's girlfriend regularly took items of jewelry belonging to her mother and pawned, then redeemed them. Because pawning property with the intent to redeem it arguably did not satisfy the stolen property element, the Court of Appeal held that the omission of an instruction defining "stolen" deprived the defendant of a jury finding on a fact essential to his conviction for receiving or possessing stolen property. (Id. at pp. 279-282.)
Here, the evidence raised a question whether defendant intended to steal Lucia's car. Defendant and Lucia were friends, and Lucia had allowed defendant to drive her other car on one occasion. Defendant took the Celica without permission on another occasion, but returned it and apologized for having taken it. This evidence permits the conclusion that defendant had once again taken the Celica with the intention of returning it. There was also, of course, ample circumstantial evidence from which jurors could infer that defendant did intend to deprive Lucia of the car permanently: She told people that it was her car, she kept it for five days and did not contact Lucia to tell her that she would be returning the car, and she showed consciousness of guilt when she told Deputy Bachman that her name was Stacy. But because a rational juror could entertain a reasonable doubt as to whether defendant intended to deprive Lucia of the car permanently, the instruction was required, even though the defense did not request it.
Although this evidence reflects conscious of guilt, it is necessary to ask, "Guilt of what?" Theft is one possible answer, but an equally valid answer would be having taken the car without its owner's consent, i.e., a violation of Vehicle Code section 10851.
If the prosecutor had chosen to charge defendant in the alternative with a violation of Vehicle Code section 10851, subdivision (a), the need for an instruction defining theft would have been obvious. Vehicle Code section 10851, subdivision (a) penalizes "[a]ny 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 . . . ." (Italics added.) The absence of this alternative charge does not diminish the need to instruct that theft requires the element of the intent to permanently deprive the owner of his or her property.
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The prosecution must prove "'every fact necessary to constitute the crime with which [the defendant] is charged' beyond a reasonable doubt. [Citations.]" (Rose v. Clark (1986) 478 U.S. 570, 580.) Instructional error which lightens the prosecution's burden of proof on an element of the offense or an important factual issue violates the defendant's right to due process. (Ibid.) Instructional errors which violate a defendant's constitutional rights are reviewed under the standard of Chapman v. California (1967) 386 U.S. 18. (People v. Flood (1998) 18 Cal.4th 470, 499, 502-503.) Under Chapman, the error is reversible unless the reviewing court can say, beyond a reasonable doubt, that the error did not contribute to the conviction. (Chapman, at p. 24.) Here, the trial court's error in failing to give a definition of theft was compounded by the prosecutor's statement, during his closing argument, that stealing simply means taking an item without the owner's consent. A proper instruction would have alerted the jury that this argument misstated the law. Under these circumstances, I cannot say beyond a reasonable doubt that properly instructed jurors would not have entertained doubt that defendant took the car with the intent to deprive Lucia of it permanently. Accordingly, I would reverse the conviction and remand for a new trial.
McKinster
Acting P.J.