Opinion
C081950
02-22-2018
THE PEOPLE, Plaintiff and Respondent, v. JOHN HENRY RILEY, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CM042849)
A jury found defendant John Henry Riley guilty of vehicle theft for stealing a car from the victim not long after he sold her the car. On appeal, defendant contends the trial court erred in responding to a jury question regarding the definition of ownership. He also contends the trial court erred in imposing two enhancements for his prior prison terms. The People concede error as to one enhancement. We agree with the People and will strike one of the enhancements and otherwise affirm.
BACKGROUND
The Victim Buys Defendant's Car
The victim testified she was with her boyfriend at a casino when defendant approached them about selling his car. The victim had been looking for a car, so she walked to the parking lot to see defendant's car. It was a 2000 Nissan Pathfinder.
The victim wanted her brother-in-law to inspect the car, so they drove 45 minutes away and met with the victim's sister, brother-in-law, and grandson. The brother-in-law gave the Pathfinder the thumbs up.
The victim and defendant then drove back to the casino. Defendant asked $1,500 for the car. The victim wrote out a bill of sale, and defendant signed it. Under his signature, defendant wrote his driver's license number and, "Received from [victim], the cash sum of $1,500 for the purchase of the above vehicle." At defendant's request, the victim wrote, "sold as is."
The victim would later explain, we were "trying to do the most legal way to do that to protect myself and if there was any protection needed for the seller also." She added that she was "[j]ust trying to do it right."
Defendant Takes Back the Car
About 11 days later, the victim saw defendant at a gas station. As she pulled into the station, the car made a squealing sound that concerned her. She asked defendant if he had heard the noise.
Defendant checked the oil and pumped the gas for her. A friend of the victim rode up on his bike. The victim called out to him and said: "look at my new car. In fact, this is the gentleman I bought it from." He complimented her on the car and took off.
After defendant finished pumping her gas, he said, "let me take it around the block real quick and make sure everything is okay since you're by yourself . . . ." Before anything was said, he got in the car, and drove around the block. He did not return.
The victim borrowed a cell phone and called her boyfriend, telling him defendant took the car. When a sheriff drove into the gas station, she told him the situation and asked what to do. The sheriff said to give him 10 more minutes before calling the police. Ten minutes later, defendant had still not returned, and the victim called the police.
Defendant Testifies
At trial, defendant testified that the victim had paid for the car at the casino. He gave her the pink slip and the keys but said he could not read or write and had mental problems. The victim said she would write out everything. The victim then wrote out the bill of sale and defendant signed it.
A week later he saw the victim at the casino. She gave him back the pink slip and the keys to the pathfinder. In exchange, he gave her $700 and took the Pathfinder.
A Department of Motor Vehicles Investigator Testifies
The prosecution offered a rebuttal witness: an investigator with the Department of Motor Vehicles. The investigator testified she had interviewed defendant regarding a stolen Pathfinder.
Defendant initially denied knowing the victim. He later said he had met the victim at a casino and she had paid him $750 of the $1,500 for the Pathfinder. He kept the title until she paid in full, but he let her take the Pathfinder. She was supposed to pay him the remainder on February 22, but she failed to. He took back the Pathfinder because she had not paid in full.
The Jury Request
Prior to deliberation, the jury was instructed, using CALCRIM No. 1820, that to prove unlawful taking or driving of a vehicle (Veh. Code, § 10851, subd. (a)) "the People must prove that: [¶] (1) The defendant took or drove someone else's vehicle without the owner's consent; [¶] AND [¶] (2) When the defendant did so, he intended to deprive the owner of possession or ownership of the vehicle for any period of time."
Undesignated statutory references are to the Vehicle Code.
Defense counsel argued in closing: "How does a vehicle get transferred with the title? By the pink slip. She's telling you she never got it." He continued: "Title continues, as far as we know even to this day, to be with [defendant]. It was never transferred. [The victim], she admitted she didn't get it, the transfer of title."
During deliberation, the jury sent a request: "Jury would like further clarification on what est[ablishes] legal ownership and possession per CA. Law? [¶] Does the written receipt est[ablish] legal ownership and/or possession with regard to intent to s[ell] a vehicle? Or does a properly filled out Title/Pink Slip have to be filled out?"
In considering a response, the court noted CALCRIM No. 1820 does not define ownership or possession, but section 460 defines an owner as: "a person having all the incidents of ownership, including the legal title of a vehicle whether or not such person lends, rents, or creates a security interest in the vehicle[;] the person entitled to the possession of a vehicle as the purchaser under a security agreement."
Section 460 continues, "or the State, or any county, city, district, or political subdivision of the State, or the United States, when entitled to the possession and use of a vehicle under a lease, lease-sale, or rental-purchase agreement for a period of 30 consecutive days or more."
The prosecutor noted section 460's definition of an owner does not apply in all circumstances, and suggested drafting a pinpoint instruction on what constitutes an owner.
The prosecutor cited Everly v. Creech (1956) 139 Cal.App.2d 651, 657-658.
Defense counsel took the position that either the court should respond by telling the jury it had already been given the applicable law or by instructing with the first third of section 460: "a person having all the incidents of ownership, including the legal title of a vehicle."
The trial court ultimately instructed the jury that "[t]he court has supplied the jury with all of the law applicable to the case." The jury thereafter found defendant guilty of driving or taking a vehicle without consent. (§ 10851.)
Sentencing and the Prior Prison Term Enhancements
After the jury verdict, the trial court found defendant had served seven prior prison terms. (Pen. Code, § 667.5, subd. (b).) The court denied defendant's motion to strike his prior prison terms, for some of which the underlying felony had been reduced to a misdemeanor.
The trial court imposed a 13-year aggregate term, consisting of a six-year term for vehicle theft (the middle term, doubled for the strike) and seven one-year enhancements for the seven prior prison terms.
DISCUSSION
I
The Trial Court's Response to the Jury Question Was Proper
On appeal, defendant contends the trial court erred in failing to respond to the jury's request for further instruction on the meaning of ownership and possession in section 10851. He argues the jury was confused about the key element of ownership and did not understand ownership and possession were not synonymous or interchangeable. He avers that instructing with section 460 would have clarified the meaning of ownership and shown ownership, not possession, was required. We disagree.
The trial court's response was proper. Defendant's assertion that as instructed the jury could convict him based on possession alone is not well taken. The jury was instructed it must find defendant took the Pathfinder "without the owner's consent" and he "intended to deprive the owner of possession or ownership." (CALCRIM No. 1820, italics added.) That instruction implicitly required a finding defendant no longer owned the Pathfinder. Thus, the jury's verdict necessarily entailed finding ownership had transferred, not merely possession.
Moreover, section 460 would not have aided the jury. Section 460's definitions of ownership are not exclusive. (People v. Clifton (1985) 171 Cal.App.3d 195, 200 [the definition of an owner found in the Vehicle Code does not apply under all circumstances and one may be considered to be an owner of a car although he or she has not transferred the title in the manner required by the Vehicle Code]; see also Allstate Ins. Co. v. Chinn (1969) 271 Cal.App.2d 274, 278 ["Section 460 . . . does not provide the exclusive definition of 'ownership' to be used in construing insurance policies"].) And none of section 460's three instances of ownership - (1) a person with all incidents of ownership, including legal title; (2) a person entitled to possession as the purchaser under a security agreement; or (3) a public entity under certain circumstances - were germane to the circumstances of the handwritten bill of sale. Thus, under the circumstances, the trial court properly informed the jury it had been fully instructed on the law.
II
One Prior Prison Term Enhancement Must Be Stricken
Defendant next challenges the imposition of two of the seven one-year enhancements imposed for his prior prison terms. The People concede error as to one enhancement. We agree with the People.
One challenged enhancement was erroneously imposed. It was imposed for a prior prison term arising from a 1998 felony conviction for receiving stolen property that was reduced to a misdemeanor in late 2015. The parties agree the enhancement imposed for that conviction must be stricken. We agree and will strike that one one-year enhancement. (See People v. Kindall (2016) 6 Cal.App.5th 1199, 1204 [striking prior prison term enhancement where felony was reduced to misdemeanor prior to adjudication of the prior conviction enhancements].)
The other challenged enhancement was properly imposed. It was imposed for a prior prison term arising from two cases: a 2009 conviction for delivering checks with insufficient funds (Pen. Code, § 476a, subd. (a)), and a 2011 conviction for unlawfully taking or driving a vehicle. (§ 10851.) Only the 2009 conviction was reduced to a misdemeanor. Thus, the enhancement was properly imposed based on the 2011 felony conviction.
Defendant nevertheless maintains the enhancement was improper, arguing the terms for the 2009 and 2011 convictions were "apparently" served concurrently with an earlier term for a 2008 conviction.
What defendant points to in the abstract of judgment appears to be a clerical error. On the abstract of judgment, both the 2011 and 2009 convictions are in parenthesis and both are checked as running concurrently. While defendant reads this error as an indication the terms were run concurrently with an unspecified prior sentence, nothing indicates this was anything but clerical error. --------
The record does not support his assertion. The abstract of judgment reflects that two one-year four-month terms were imposed for the 2009 and 2011 convictions. The criminal record summary included in defendant's probation report reflects that the term imposed for the 2011 conviction was to run concurrently with the term imposed for the 2009 conviction. The abstract does not indicate the 2009 and 2011 terms were to run concurrently with any previously imposed term.
We will therefore strike only one prior prison term enhancement.
DISPOSITION
We modify the judgment to strike the prior prison term enhancement for the 1998 felony conviction for receiving stolen property. (Pen. Code, § 667.5, subd. (b).) The trial court is directed to prepare an amended abstract of judgment reflecting this modification. The trial court is further directed to forward a certified copy to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
/s/_________
HOCH, J. We concur: /s/_________
RAYE, P. J. /s/_________
MURRAY, J.