Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. VA093694, Philip H. Hickok, Judge.
Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and Adrian N. Tigmo, Deputy Attorneys General, for Plaintiff and Respondent.
JOHNSON, Acting P. J.
Jorge Zaragoza appeals from a judgment entered after a jury convicted him of unlawfully driving or taking a vehicle. He contends the evidence is insufficient to support his conviction. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Charges
Zaragoza was charged by information with one felony count of operating a chop shop (count1), three felony counts of receiving a stolen vehicle (counts 2, 3 and 6), one misdemeanor count of possessing burglary tools (count 4, a misdemeanor), and one felony count of unlawfully driving or taking a vehicle (count 5). As to the felony counts, the information specially alleged Zaragoza had suffered a prior serious or violent felony conviction within the meaning of the “Three Strikes” law and had served three separate prison terms for a felony. It was additionally specially alleged as to the felony counts Zaragoza had suffered a prior felony theft-related conviction.
Penal Code section 466, Vehicle Code section 10851, subdivision (a), Penal Code sections 667, subdivisions (b)-(i), 1170.12, subdivisions (a)-(d), 667.5, subdivision (b), Penal Code sections 666.5, 487(h) (grand theft commercial cargo).
2. The Trial
Prosecution Evidence on Count 5
At approximately 10:00 a.m. on May 23, 2005, Deputy Joseph Acevedo of the Los Angeles County Sheriff’s Department was driving a marked patrol car on Central Avenue in Los Angeles. He saw the driver of a white GMC Denali run a red light and conducted a traffic stop. The Denali had a paper dealer’s license plate. Zaragoza was the driver and a male passenger was in the front seat. Zaragoza produced his driver’s license and explained he had run the red light because some guys had taken a shot at him. While Acevedo was radioing for backup, the passenger suddenly alighted from the Denali and fled on foot. At the same time Zaragoza drove off, with the passenger door still open, and ran a red light, nearly colliding with a trash truck. Acevedo called for other officers to pursue Zaragoza while he chased the passenger. Acevedo saw the passenger leave in a waiting car as the Denali was traveling towards a housing project. Acevedo returned to his patrol car and came upon the Denali about 10 minutes later. The Denali had been abandoned with its engine still running. The ignition had been “punched” and Zaragoza was gone. The lock on the driver’s side door was broken.
The owner of the Denali did not testify.
Defense Evidence on Count 5
Zaragoza neither testified nor presented other evidence in his defense.
3. Motion for Entry of Judgment of Acquittal for Insufficient Evidence
The defense moved for entry of judgment of acquittal as to count 5 arguing there was insufficient evidence the Denali was taken without the owner’s consent. The court denied the motion.
4. Verdict and Sentence
On the People’s motion, the trial court dismissed the misdemeanor charge of possessing burglary tools (count 4) in the furtherance of justice. The jury convicted Zaragoza of unlawfully driving or taking a vehicle (count 5), and acquitted him of one count of receiving a stolen vehicle (count 6). The jury was unable to reach a verdict on the charges of operating a chop shop (count 1) and receiving stolen property (counts 2 and 3). A mistrial was declared as to these counts, and they were dismissed.
In a bifurcated proceeding, Zaragoza admitted two of the prior prison term enhancement allegations. The trial court dismissed the prior-theft related felony enhancement allegation.
It appears from the record the People were unable to proceed on the remaining special allegations.
The trial court sentenced Zaragoza on May 3, 2006, to a state prison term of four years, consisting of the middle term of two years for unlawfully driving or taking a vehicle, plus one year for each of the two prior prison term enhancements.
Zaragoza was sentenced in a second case, Los Angeles Superior Court case No. KA074086, on August 9, 2006. At that sentencing hearing, the trial court determined the four-year state prison sentence Zaragoza had received on May 3, 2006 would constitute the base term to which the sentence in this second case would be served consecutively. The court imposed an additional sentence of three years eight months, resulting in an aggregate state prison sentence of seven years eight months. This court has disposed of Zaragoza’s appeal from the judgment entered in Los Angeles Superior Court case No. KA074086 by separate opinion in Court of Appeal case No. B192999.
DISCUSSION
In considering the sufficiency of the evidence, we review the record in the light most favorable to the prosecution to determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. If the judgment is supported by substantial evidence -- evidence which is reasonable, credible and solid -- we will affirm.
People v. Frye (1998) 18 Cal.4th 894, 953.
People v. Thomas (1992) 2 Cal.4th 489, 514.
A violation of Vehicle Code section 10851, subdivision (a) requires proof of the specific intent to deprive the owner of the car of possession or title for either a temporary or permanent period. The People have the burden to show by direct or circumstantial evidence the defendant lacked the consent of the owner to take the vehicle. Zaragoza contends there is no evidence the Denali was stolen and/or he was driving it without the owner’s consent.
Pursuant to Vehicle Code section 10851, subdivision (a), a person is guilty of unlawfully driving or taking a vehicle if that person “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 . . . .”
People v. Green (1995) 34 Cal.App.4th 165, 180, CALJIC No. 14.36; Judicial Council of California Criminal Jury Instructions (2006) CALCRIM No. 1820.
People v. Lam (2004) 122 Cal.App.4th 1297, 1301; People v. Rodgers (1970) 4 Cal.App.3d 531, 534 (Rodgers).
Although there was no direct evidence, there was sufficient circumstantial evidence from which the jury could reasonably infer Zaragoza was driving the Denali without the owner’s consent. The Denali’s condition alone supports the finding it had been stolen. The Denali was new (dealer’s plate), with a broken (punched) ignition and a broken lock on the driver’s side door. Mere possession of a stolen car under suspicious circumstances may be sufficient circumstantial evidence the defendant lacked the consent of the owner.
People v. Clifton (1985) 171 Cal.App.3d 195, 199, see People v. Green, supra, 34 Cal.App.4th 165, 181 [A broken ignition, operating the car without an ignition key, and the use of a screwdriver, when taken together, create a strong inference a car was stolen.].
In Rodgers, the case upon which Zaragoza primarily relies, the court held there was insufficient evidence the defendant lacked consent where the owner’s husband testified he had left the car in a garage on a Saturday and when he returned on Monday to retrieve the car, it was gone. Six months later, the defendant was found driving the car and was arrested and charged with its theft. The owner’s husband testified he did not give the defendant permission to drive the car, while the defendant testified he had borrowed the car from a woman friend, who had, in turn, borrowed it from a friend of hers. Without the actual owner’s testimony, “the only conduct of the defendant which was established by the evidence was that he was driving a nonowned vehicle for some time. No conduct indicating consciousness of guilt was shown.”
People v. Rogers, supra, 4 Cal.App.3d at page 534.
By contrast Zaragoza acted like a guilty man, and there is no contrary evidence he had permission to drive the Denali. When stopped by Deputy Acevedo, Zaragoza lied about why he had run the red light before suddenly driving off. He then abandoned the Denali with the engine still running and fled on foot. Zaragoza’s conduct reflects a consciousness of guilt sufficient to support the reasonable inference he did not have the owner’s consent to drive the Denali. Accordingly, there is no lack of evidence to support Zaragoza’s conviction.
See People v. Pater (1968) 267 Cal.App.2d 921, 923 [The driver’s flight suggests the absence of consent from who might have been considered an owner of the car.].
DISPOSITION
The judgment is affirmed.
We concur: WOODS, J., ZELON, J.