Opinion
D071703
04-10-2018
THE PEOPLE, Plaintiff and Respondent, v. ELLINGTON LLELLYN MCCOY, Defendant and Appellant.
Patrick Dudley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael P. Pulos and Teresa Torreblanca, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. SCD264198, SCE362400) APPEAL from a judgment of the Superior Court of San Diego County, Lantz Lewis, Judge. Affirmed. Patrick Dudley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael P. Pulos and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
A jury found Ellington Llellyn McCoy guilty of unlawfully driving or taking a vehicle (Veh. Code, § 10851, subd. (a)) (count 1), possessing a stolen vehicle (Pen. Code, § 496d) (count 2), and driving without a license (Veh. Code, § 12500, subd. (a)) (count 3). McCoy subsequently admitted having suffered a prior strike conviction in another case, and the trial court found that he violated his probation in the other case by committing the offenses charged in this case. The trial court sentenced McCoy to six years in prison for the probation violation. In this case, the court imposed a concurrent term of four years on count 1, stayed the execution of sentence on count 2 pursuant to section 654, and imposed a sentence of 180 days with credit for time served on count 3.
Unless otherwise specified, all subsequent statutory references are to the Penal Code.
On appeal, McCoy claims that the trial court erred in declining McCoy's request to instruct the jury regarding the defense of mistake of fact. Specifically, McCoy contends that an instruction on mistake of fact was warranted because there was substantial, "albeit circumstantial," evidence to support a finding that he mistakenly believed that the vehicle he was driving when stopped by the police was not stolen. We conclude that the trial court did not err in failing to instruct the jury on the defense of mistake of fact because there is not substantial evidence in the record to support giving the instruction. We further conclude that any error was harmless. The People presented very strong evidence that McCoy knew that the vehicle was stolen, and the trial court did instruct the jury that, in order to find McCoy guilty of possessing a stolen vehicle, it must find, beyond a reasonable doubt, that he knew the vehicle was stolen. Under these circumstances, any failure to provide a mistake of fact instruction was harmless under any standard of prejudice.
II.
FACTUAL BACKGROUND
One morning in May 2016, C.S. noticed that his wife's 2014 Jeep Patriot was missing from the couple's driveway. The keys to the Jeep, which had been inside the center console of another of the family's vehicles, were also missing.
Two days later, a California Highway Patrol officer pulled McCoy over for speeding. McCoy was driving the stolen Jeep. The officer requested McCoy's driver's license, registration for the vehicle, and proof of insurance. McCoy claimed that he had left his license at home and that the Jeep belonged to a friend.
The officer asked McCoy to write down his name, and various other personal identifying information on a piece of paper. McCoy wrote down a false name and date of birth. The officer checked the name and date of birth in a Department of Motor Vehicles database and learned that the name was not in the database. The officer ran a vehicle registration check and discovered that the Jeep had been stolen. The officer placed McCoy under arrest.
After McCoy waived his Miranda rights, the officer asked McCoy why he had said that the Jeep belonged to a friend of his. McCoy responded that an acquaintance named Jacob had asked McCoy whether he wanted to buy a car, and that McCoy had bought the Jeep. The officer also asked McCoy when he had purchased the Jeep. McCoy initially said that he had purchased the Jeep two or three days earlier, but later told the officer that he had bought the vehicle four or five days before the encounter with police.
(Miranda v. Arizona (1966) 384 U.S. 436.)
The officer did not testify that McCoy expressly stated that he purchased the Jeep from Jacob, but only that Jacob had asked McCoy whether he wanted to buy the Jeep and that McCoy had bought the Jeep.
McCoy also told the officer that he had purchased the Jeep for $1,500 from a mechanic in the Casa de Oro area of San Diego. The officer asked McCoy whether McCoy thought that it was odd that the owner of a 2014 Jeep Patriot would be selling it for $1,500. McCoy responded that the mechanic had stated that he wanted $2,000, but that when McCoy told him that he had only $1,500, the mechanic accepted McCoy's offer.
McCoy also admitted to the officer that he did not have a driver's license.
On cross-examination, the officer stated that McCoy had not displayed any signs of nervousness during the encounter. The officer also acknowledged that the Jeep did not have any broken windows and that McCoy did not possess a shaved key for the Jeep. The officer stated that broken windows and shaved keys may be indications of a stolen vehicle.
III.
DISCUSSION
A. The trial court did not err in failing to instruct the jury on the defense of mistake of fact
McCoy claims that the trial court erred in declining McCoy's request to instruct the jury on the defense of mistake of fact.
1. Factual and procedural background
After the close of evidence, at a hearing outside the presence of the jury, the trial court indicated that the defense had requested that the court instruct the jury pursuant to CALCRIM No. 3406 on the defense of mistake of fact. McCoy's proposed instruction states:
"The defendant is not guilty of the crimes charged in Counts One and Two if he did not have the specific intent or mental state required to commit the crime because he did not know a fact or mistakenly believed a fact.
"If the defendant's conduct would have been lawful under the facts as he believed them to be, he did not commit these crimes.
"If you find that the defendant believed that ?[] __________ he did not have the specific intent or mental state required for Unlawfully Taking or Driving a Vehicle or Receiving a stolen vehicle.
"If you have a reasonable doubt about whether the defendant had the specific intent or mental state required for Unlawfully Taking or Driving a Vehicle or Receiving a Stolen Vehicle, you must find him not guilty of those crimes."
The question mark appears in the printed proposed instruction contained in the clerk's transcript.
The court stated that it was uncertain as to what fact McCoy believed should be filled in the blank in the proposed instruction quoted above. The court stated:
"I started thinking, well, what will I fill in? Is it believed that Jacob sold it? Is it believed that he bought it two or three days ago? Is it believed that a mechanic sold it to him?"
Defense counsel responded by stating that the instruction should state in relevant part, " '[I]f you find that the defendant believed that the vehicle was not stolen.' "
The trial court replied that there were no statements in evidence that indicated that McCoy believed that the vehicle was not stolen. Defense counsel argued that McCoy's belief that the vehicle was not stolen was "implied by the fact that [McCoy] is saying he bought it for $1,500."
After hearing further argument from both defense counsel and the prosecutor, the court declined McCoy's request to instruct the jury on the mistake of fact defense.
2. The mistake of fact defense
In People v. Lawson (2013) 215 Cal.App.4th 108 at pages 114-115, the Court of Appeal outlined the nature of the mistake of fact defense:
"Notwithstanding the myriad circumstances or 'defenses' that may operate to negate the mental state element of a given crime, the particular 'defense' of mistake of fact requires, at a minimum, an actual belief 'in the existence of circumstances, which, if true, would make the act with which the person is charged an innocent act . . . .' [Citations.] For general intent crimes, the defendant's mistaken belief must be both actual and reasonable, but if the mental state of the crime is a specific intent or knowledge, then the mistaken belief must only be actual. [Citations.] In all cases, however, the defendant's mistaken belief must relate to a set of circumstances which, if existent or true, would make the act charged an innocent act."
3. Application
a. The trial court did not have a sua sponte duty to instruct on McCoy's mistake of fact defense
McCoy contends that the trial court had a sua sponte duty to instruct on the defense of mistake of fact because his "sole defense [at trial was] that he did not believe the vehicle was stolen."
McCoy raises two arguments in support of this claim. First, McCoy argues, "there did not need to be 'substantial evidence' supportive of [the mistake of fact] defense," in order for the trial court to have had a sua sponte duty to instruct on the defense. In support of this contention, McCoy cites the Supreme Court's statement in People v. Anderson (2011) 51 Cal.4th 989 (Anderson) that a trial court has a sua sponte duty to provide " ' "instructions on the defendant's theory of the case, including instructions 'as to defenses " 'that the defendant is relying on . . . , or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case.' " ' " ' " (Id. at p. 996, italics added.) McCoy argues that the italicized words in the quotation from Anderson mean that a trial court has a sua sponte duty to instruct on any defense relied upon by a defendant irrespective of whether there was substantial evidence to support such a defense. That is not the law. A trial court has a sua sponte duty to instruct on a defense only if that defense is supported by substantial evidence. (See, e.g., People v. Montoya (1994) 7 Cal.4th 1027, 1047 ["The trial court is charged with instructing upon every theory of the case supported by substantial evidence, including defenses that are not inconsistent with the defendant's theory of the case" (italics added)]; People v. Russell (2006) 144 Cal.App.4th 1415, 1424 (Russell) ["there is no sua sponte duty to instruct on a defense if the evidence of that defense is minimal or insubstantial"]; accord People v. Curtis (1994) 30 Cal.App.4th 1337, 1355 ["A trial court has no duty to instruct the jury on a defense—even at the defendant's request—unless the defense is supported by substantial evidence"].)
Second, McCoy cites Russell for the proposition that a trial court has a sua sponte duty to instruct on the mistake of fact defense where the instruction is supported by substantial evidence. However, the California Supreme Court disapproved the Russell court's conclusion that a trial court has a sua sponte duty to instruct on the defense of mistake of fact in People v. Covarrubias (2016) 1 Cal.5th 838 (Covarrubias). The Covarrubias court explained:
"In [Russell, supra, 144 Cal.App.4th at p. 1415] . . . the Court of Appeal held that the trial court prejudicially erred in failing to instruct on its own motion on the defenses of claim of right and mistake of fact because both defenses 'were implicated by defendant's claim that he did not have the requisite knowledge that the [property] was stolen because at all times he held a good faith belief that it had been abandoned,' and the evidence in support was substantial. . . . The Court of Appeal, however, failed to apply the exception we recognized in People v. Saille[ (1991) 54 Cal.3d 1103, 1117], and subsequently applied in Anderson, that the trial court's sua sponte instructional duties do not extend to defenses that serve only to negate an element of the crime. Therefore, we disapprove Russell to the extent it is inconsistent with our decision today." (Id. at p. 874, fn.14.)
McCoy argues, "It should be noted that the California Supreme Court has not expressly overruled Russell or any other case that invoked the rule that a trial court has a sua sponte duty to instruct on mistake of fact." McCoy failed to cite Covarrubias, which, as discussed in the text, does expressly disapprove Russell on this point.
Thus, we conclude that the trial court did not have a sua sponte duty to instruct on McCoy's mistake of fact defense.
b. The trial court did not err in denying McCoy's request for a pinpoint instruction on the mistake of fact defense
McCoy argues in the alternative that the trial court erred in denying his request for a "pinpoint instruction," (formatting omitted) on his mistake of fact defense.
"[L]egally correct and factually warranted pinpoint instructions designed to elaborate and clarify other instructions should be delivered upon request." (People v. Hughes (2002) 27 Cal.4th 287, 362, italics omitted.) A trial court errs when it refuses to give such an instruction. (Ibid.) However, "a trial court may properly refuse an instruction offered by the defendant if it incorrectly states the law, is argumentative, duplicative, or potentially confusing [citation], or if it is not supported by substantial evidence [citation]." (People v. Moon (2005) 37 Cal.4th 1, 30, italics added.)
McCoy did not testify in the case, and there is no evidence in the record that McCoy ever stated to police officers, or to anyone else, that he did not know that the Jeep that he was driving was stolen. However, McCoy claims that there was "substantial, albeit circumstantial, evidence that inferred that [he] did not believe the vehicle was stolen because he purchased it from a mechanic for $1,500, there were no telltale signs of a stolen vehicle like a shaved key or broken window, and [he] was not acting nervously when [the officer] stopped him." We are not persuaded.
McCoy's claim that he purchased a 2014 Jeep Patriot for $1,500 does not constitute substantial evidence supporting a mistake-of-fact instruction. On the contrary, the sale of property at a disproportionately low price is a suspicious circumstance that justifies the opposite inference, namely, that the defendant received the property with knowledge that it had been stolen. (People v. Brumley (1966) 242 Cal.App.2d 124, 128 ["[a] disproportionately low price paid for stolen goods will support an inference that the buyer had knowledge that the property was stolen"] (Brumley); accord People v. McFarland (1962) 58 Cal.2d 748, 754 [" '[Possession] of stolen property, accompanied by . . . an unsatisfactory explanation of the possession, or by suspicious circumstances, will justify an inference that the goods were received with knowledge that they had been stolen"].) The lack of visible indications demonstrating that the Jeep had been stolen does not constitute substantial evidence that McCoy believed that the vehicle was not stolen. Nor does evidence that McCoy did not appear nervous during his encounter with the officer constitute substantial evidence supportive of his defense, particularly in light of the fact that, as McCoy concedes in his reply brief, "[he] gave the patrol officer differing explanations as to how he obtained the vehicle."
The husband of the Jeep's owner testified that he and his wife purchased the vehicle for approximately $15,000 in March of 2015.
Accordingly, we conclude that the trial court did not err in denying McCoy's request for a pinpoint instruction on the defense of mistake of fact. B. Any error in failing to instruct the jury on the mistake of fact defense was harmless under any standard of prejudice
Even assuming that the trial court erred in failing to instruct the jury on the mistake of fact defense, and assuming further that the Chapman beyond-a-reasonable-doubt standard of prejudice applies, it is clear that any error was harmless.
(Chapman v. California (1967) 386 U.S. 18, 24 ["before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt"].) McCoy contends that the Chapman standard of prejudice applies because the trial court's failure to instruct pursuant to CALCRIM No. 3406 violated his Fourteenth Amendment right to present a defense by preventing the jury from fairly evaluating his defense that he did not know that the vehicle he was driving was stolen.
McCoy contends that the trial court erred in failing to instruct the jury that he was not guilty of unlawfully driving or taking a vehicle or possessing a stolen vehicle if the jury were to "find that the defendant believed that the vehicle was not stolen." (Italics added.) Yet, the trial court did instruct the jury that, in order to find McCoy guilty of receiving a stolen vehicle, the People were required to prove, among other elements, that when McCoy "received, concealed or withheld the vehicle, he knew that the vehicle had been stolen." Thus, in instructing on the elements of the offense of receiving a stolen vehicle, the jury was instructed on the essence of the mistake-of-fact defense that McCoy proffered. Under these circumstances, the jury's verdict finding McCoy guilty of receiving a stolen vehicle strongly supports the conclusion that any error in failing to instruct the jury on the mistake of fact defense was harmless. (See People v. Campbell (2015) 233 Cal.App.4th 148, 167 ["a jury's determination on a factual issue under other instructions is relevant to determining whether an instructional error is harmless"].)
This is not a case in which a mistake-of-fact instruction would have highlighted for the jury defense evidence that differed from the elements of the offense. (Compare with Russell, supra, 144 Cal.App.4th at p. 1433 [concluding that failure to provide mistake-of-fact instruction would have informed jury that defendant was not guilty of receiving stolen vehicle if he believed motorcycle had been abandoned was prejudicial because instruction would have "drawn the jury's attention to facts that could raise a reasonable doubt about defendant's guilt" and "clarified the knowledge element" of the offense].) --------
We also are not persuaded by McCoy's contention that evidence that he "had purchased the vehicle for $1,500 from a mechanic," that he did not appear nervous during the traffic stop, and that there were not any "telltale indications" that the vehicle was stolen (such as a broken window or a shaved key), demonstrates that it was "a close question" as to whether McCoy knew that the vehicle was stolen. As discussed in part III.A, ante, evidence that McCoy told a police officer that he had purchased the vehicle for $1,500 does not demonstrate that he believed that the vehicle was not stolen. Rather, given the extremely low price, the statement supports the inference that McCoy knew that the vehicle had been stolen. (Brumley, supra, 242 Cal.App.2d at p. 128.) That is particularly true given the People's presentation of evidence that McCoy initially provided the officer with a false name, and evidence that McCoy initially falsely told the officer that the vehicle belonged to a friend. With respect to evidence that McCoy did not appear nervous during the stop, and the lack of evidence of "telltale indications of a stolen vehicle," such evidence was unlikely to carry significant exculpatory weight with the jury when considered in light of all of the other evidence presented that demonstrated McCoy's guilt.
Accordingly, we conclude that any error in failing to instruct the jury on the mistake of fact defense was harmless under any standard of prejudice.
IV.
DISPOSITION
The judgment is affirmed.
AARON, J. WE CONCUR: BENKE, Acting P. J. IRION, J.