P. v. Cross

Filed 7/20/07 P. v. Cross CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Bernard Schwartz, Judge. Affirmed.

Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Gil Gonzalez, Supervising Deputy Attorney General, and Teresa Torreblanca, Deputy Attorney General, for Plaintiff and Respondent.

I. INTRODUCTION

Defendant Matthew Steven Cross appeals from his conviction of carjacking (Pen. Code,^[1]  215, subd. (a), (count 1)) and two counts of felony vehicle theft with a prior vehicle theft conviction ( 666.5, subd. (a); Veh. Code,  10851 (counts 2 and 3).) Defendant contends that through both instructional error and error in response to jury inquiries, the trial court misled the jury into convicting him based on an erroneous standard of aider and abettor liability, in violation of his Sixth Amendment right to a jury determination of every element of the charged offense, and his Fourteenth Amendment right to due process. Defendant further contends the trial court abused its discretion in refusing to strike one of defendants strike priors. We find no error, and we affirm.

II. FACTS AND PROCEDURAL BACKGROUND

A. Prosecution Evidence

Michael Rodriguez was on duty as a security guard at the Riverside Auto Auction holding lot adjacent to the Riverside Airport on the afternoon of February 12, 2003. He heard an engine rev and saw a black Dodge Durango that had been parked inside the fenced lot peel[] out and crash through the front gate of the lot. It was raining hard, but Rodriguez got a good look at the driver of the Durango when the car made a U-turn and passed in front of the guard station with the drivers window rolled down. Rodriguez identified the driver as Manuel Lopez.^[2] Rodriguez did not see any passengers in the Durango.

Gerald Minder, a construction superintendent, was patrolling a development site in Corona that same afternoon when he saw a Durango containing two people heading west at a high rate of speed. Minder made a U-turn and saw the Durango leave the pavement and enter a dirt road. Minder did not see any vehicles follow the Durango onto the dirt road. Minder later saw the Durango in a field. Another vehicle was there, and four men were walking around. About 45 minutes later, Minder saw the Durango stuck in mud in the field with the engine running, headlights on, doors open, and keys in the ignition, but no one was in the Durango. Minder called the police at about 5:30 p.m.

Around 3:00 p.m. on February 12, John Parnau saw two men, whom he later identified as defendant and Lopez, walking in a field in Corona. Defendant had his arm around Lopezs neck and had his right hand in his jacket pocket as if he were holding a gun on Lopez. Lopez and defendant jumped into a white truck^[3] that was parked in a residential driveway; defendant got into the drivers seat, and Lopez got in on the passenger side. The truck took off at a high rate of speed, jumped the curb, and ran into a flower bed in front of a sign for the housing development, where it became stuck. Lopez jumped out and tried to push the truck while defendant stepped on the gas to try to get the truck unstuck from the mud. Parnau saw the white truck smoking. A van pulled up in the middle of the intersection. The driver got out of the van, and Parnau saw the van take off, leaving the driver in the street.

The van belonged to Salvador Molina. Molina testified he had seen two men, one White and one Hispanic, trying to get a white truck out of the mud; the truck was smoking heavily. Molina stopped to assist when the White man waved to him as if signaling for help. When Molina stopped, the White man opened the passenger door, and Molina asked what was going on. The man got into the van and said, Get the fuck out of the van now, mother-fucker son of a bitch. The man put his arm underneath his shirt and pointed toward Molina as if he had a gun. The man pushed Molina out of the van and then moved into the drivers seat while the Hispanic man got in on the passenger side. Both men took off in the van at a high rate of speed. In a field show-up later that day, Molina identified Lopez as the second man who had gotten into the van, but he was unable to positively identify defendant.

Don Richardson saw Molinas van come roaring up through the parking lot of Richardsons business near the Prado Dam. Richardson grabbed his pistol and went outside where he was joined by Denny Dimmerling, the head shooting instructor at the Prado Olympic shooting park. Richardson and Dimmerling later saw the van come back at a high rate of speed and drive onto a dirt road. The van slid down the hill and got stuck in the mud. Dimmerling did not see any cars chasing the van.

Dimmerling and Richardson saw the driver, a White man whom they identified as defendant, and a Hispanic man (Lopez) get out of the van. Defendant had his left arm around Lopezs neck and his other hand in his pocket as if he had a gun. Richardson and Dimmerling, who were both armed, told defendant to take his hand out of his pocket, release Lopez, and lie down on the ground. Defendant and Lopez instead walked directly toward Richardson and Dimmerling. Richardson fired a shot over their heads, and both defendant and Lopez hit the ground. Defendant offered to show identification, but Dimmerling told defendant to stay put until the police arrived. Defendant said Dimmerling would have to shoot him in the back because he was going to walk away. Defendant walked away, but Lopez stayed with Dimmerling and Richardson.

Deputy Sheriff William Fussell of the San Bernardino County Sheriffs Department responded to a dispatch call concerning someone with a gun in the Prado Dam area. He spotted defendant walking fast on a horse trail near the 71 freeway. Defendant was arrested at 4:44 p.m. in the back yard of a residence; he did not appear to be under the influence of drugs. His pants were covered in mud. Dimmerling and Richardson identified him as the man they had seen.

The police interviewed defendant that night. Defendant told them a friend named Sean had dropped him off near the Riverside airport earlier that day. Defendant and Lopez had found a Dodge Durango with the keys in the ignition at the nearby Auto Auction lot, and they had taken it. Defendant admitted he had driven the Durango and had gotten it stuck in the mud in a field. He and Lopez had then taken a truck from the driveway of a house to get away from armed people who were chasing them. Defendant said he had lost control and got the truck stuck in the mud when an armed man in a truck chased them and tried to hit them. He said that a man had stopped to help, and defendant had asked the man for a ride. The man did not understand, became afraid, and then got out of the van, so defendant got into the van and drove away with Lopez. They drove to the Prado Dam area to hide, but they crashed and got stuck in the mud, and some men had pulled guns on them for no reason. Defendant did not appear to be under the influence of narcotics during the interview.

B. Defense Evidence

Shawn Bell testified that defendant had asked him for a ride early in the afternoon of February 12, 2003. When Bell arrived at the corner where he had arranged to pick up defendant, defendant and a Hispanic man ran out from between the apartments of an apartment complex, got in Bells car, and said, Lets go. Bell testified the Hispanic man could have been Lopez.

Two men appeared to be chasing defendant and the Hispanic man. One of the two men jumped into a truck with a third man, and the other man got into a sedan and the vehicles pulled out after Bell. Bell did not see any weapons.

Bell drove in an erratic manner for five to seven minutes, trying to shake whoever might be following them. Defendant appeared agitated; he said the men were after him, and he wanted to be dropped off at the airport. Bell thought the men might be bounty hunters for a bail bondsman. After driving around for a while, Bell dropped off defendant and the Hispanic man at the airport.

Manuel Lopez testified that his girlfriend had dropped him and defendant off at a motel on February 12. Three men in a silver truck came into the motel parking lot. One of the men was armed, and he walked toward defendant in an aggressive manner. Neither defendant nor Lopez was armed. Lopez and defendant jumped into a car driven by a friend of defendant, and the men followed in a truck. Lopez was scared, and he thought the men in the truck were going to shoot at them.

Defendants friend dropped defendant and Lopez off near the airport. Lopez and defendant saw the truck again and they separated. Lopez saw some cars with keys in them in the auction lot. He hopped over the fence, got into the Dodge Durango, and crashed it though the front gate of the auction lot. Defendant was not with Lopez when Lopez took the Durango. Lopez saw defendant on foot on the street and picked him up in the Durango. Lopez saw the truck in his rear view mirror. He tried to evade the truck, but he did not know the area well, and he got stuck in a field after getting lost. The truck and other vehicles behind it were still behind Lopez when he became stuck.

Lopez and defendant left the field and knocked on doors trying unsuccessfully to get help. They saw another pickup truck moving slowly. It made a U-turn and headed in their direction. Lopez did not know if the pickup truck was part of the group chasing them earlier. Lopez and defendant spotted the white truck with the keys in the ignition, and they took it so they could get away. The driver of the pickup tried to block them, and the white truck jumped the curb and got stuck in a flower bed.

Lopez tried to free the truck but was unable to do so. Defendant pointed out a van that had just stopped. Lopez ran over, jumped in the passenger side, and yelled loudly to the driver to get out because Lopez did not know who he was, and Lopez did not want to take any chances. Defendant did not tell Lopez to take the van; Lopez did so on his own.

Defendant got into the passenger seat, and Lopez drove the van away. They were trying to get to a ranger station in the park when the van got stuck. Lopez and defendant got out of the van and saw two men with guns. Defendant told the men he and Lopez needed help. Lopez thought the men were shooting at them. Defendant got behind Lopez and held him in a hostage-type hold, but Lopez denied he had ever been a hostage. The two armed men yelled for defendant and Lopez to get on the ground or the men would kill them. Lopez and defendant complied, but then defendant got up and said that the men would have to shoot him in the back because he was leaving. Defendant walked away.

Lopez denied telling defense investigators that defendant had driven Molinas van. Lopez admitted he had a cell phone with him, but he had never called for help; he claimed at trial the cell phone had not been working. Lopez also denied telling investigators that defendant had smoked methamphetamine the night before the incidents; Lopez only remembered that he smoked it. Lopez said he could not remember some of the details.

Lopez was currently in custody for carjacking and two grand theft auto convictions, and he had prior convictions for grand theft auto in 2001 and 2002. He admitted he had pleaded guilty to the same offenses with which defendant was charged.

C. Rebuttal Evidence

Lopez previously told a defense investigator that Lopez had Bell drop them off near the airport because Lopez knew how to steal cars and knew there were many cars near the airport. Lopez said he took the Durango because it was the most convenient vehicle available, and defendant had been with him when he took the Durango. Lopez told the investigator that he had gotten into the back seat of Molinas van, told the driver to get out, and then told defendant to drive the van.

D. Verdict and Sentence

The jury found defendant guilty of carjacking in count 1 ( 215, subd. (a)) and of vehicle theft with a prior vehicle theft in counts 2 and 3 ( 666.5, subd. (a); Veh. Code,  10851.) In a bifurcated proceeding, the trial court found true the allegation that defendant had suffered two prior strike convictions, a prior Vehicle Code section 10851 conviction for purposes of counts 1 and 2, a prior prison term, and a prior serious felony conviction. The trial court sentenced defendant to 83 years to life in prison.

Other facts are set forth in the discussion of the issues to which they pertain.

III. DISCUSSION

A. Instructions and Responses to Jury Questions About Aiding and Abetting

Defendant contends the trial court erred in its instructions to the jury on aiding and abetting and in its responses to the jurys questions about that theory.

1. Background

In count 1, defendant was charged with the carjacking of Molinas van. The prosecution proceeded on alternate theories of culpability, arguing that defendant was either a direct perpetrator or an aider and abettor. The primary defense theory was that all the acts were committed under duress. Defense counsel also argued that Lopez had taken the van without defendants prior knowledge that Lopez would do so, and thus, defendant did not share Lopezs specific intent at the time of the carjacking.

In defining the culpability of an aider and abettor for purposes of carjacking, the trial court instructed the jury, over defense objection,^[4] with a modified version of CALJIC No. 9.40.1, as follows: For the purposes of determining whether a person is guilty as an aider and abetter [sic] to carjacking, the commission of the crime of carjacking is not confined [to a] fixed place for a limited period of time and continues so long as the stolen property is being carried away to a place of temporary safety.^[5]

On the first day of deliberations, the jury sent a note to the trial court asking, If Person A carjacks a vehicle and person B knowingly gets into that same vehicle, is person B guilty of carjacking? After discussions with counsel, the trial court instructed the jury to review the principal and aider and abettor instructions (CALJIC Nos. 3.00, 3.01), the concurrence of act and specific intent instruction (CALJIC No. 3.31), and the general carjacking instructions (CALJIC No. 9.00 et seq.). The court directed the jury to view those instructions in conjunction with all other jury instructions.

The jury sent three additional notes that asked for clarification of the CALJIC No. 9.46 carjacking instruction and requested readbacks of testimonies of witnesses about the events surrounding the taking of Molinas van.^[6]

The following day, the jury sent a note to the trial court that the jury had reached verdicts on counts 2 and 3 but was deadlock[ed] on Count 1 of the charge of carjack PC 215. The jury foreperson told the court that the court might be able to help with a question. The trial court ordered the verdicts on counts 2 and 3 sealed until the jury submitted its question. The jury then submitted a note that asked: (1) Is the passenger in a carjacked vehicle just as guilty of carjacking, if he did not take the vehicle from the owner? [] (2) If there are two people in a vehicle when it is driven away from the scene after it was carjacked and only one of the people took the car, are both guilty of carjacking? Please do not refer the jury [b]ack to jury instructions.

After discussion with counsel, the trial court responded to the first question, Yes, if he meets the elements of 3.01 of the jury instructions as an aider and abettor before, during or after the taking, and to the second question, Same answer as above.

Later that day, the jury submitted another note: Does a person have to be there, during and after the taking to be consider[ed] an aider and abettor. Or can he be there at any one point along the way? Please do not refer Jury [b]ack to [j]ury [i]nstructions. After consulting with counsel, the trial court responded, An aider [and] abettor is one who with knowledge, intent and act/advice joins with a principle [sic] either before, during or after the taking.

2. Analysis

Robbery is defined as the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear. ( 211.) Carjacking is defined as the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence . . . against his or her will and with the intent to either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession, accomplished by means of force or fear. [Citation.] The crimes of robbery and carjacking both require a felonious taking, which in turn requires both caption (dominion over property) and asportation (carrying away of property). (People v. Lopez (2003) 31 Cal.4th 1051, 1055-1056, 1059-1063; People v. ONeil (1997) 56 Cal.App.4th 1126, 1131).

For purposes of robbery, although a taking requires only slight movement, the taking continues until the perpetrator reaches a place of temporary safety. (People v. Flynn (2000) 77 Cal.App.4th 766, 772; People v. ONeil, supra, 56 Cal.App.4th at p. 1132.). Defendant argues, however, that it was error to instruct the jury that carjacking continues until the perpetrators reach a place of temporary safety. We conclude that the instruction was not erroneous.

Although we have found no published California case addressing the precise issue, at least one federal court has held that carjacking continues until a place of temporary safety is reached. In United States v. Martinez-Bermudez (1st Cir. 2004) 387 F.3d 98, the court held that, for purposes of determining whether a death occurred in the perpetration of a carjacking, the carjacking was still in progress during flight with the carjacked vehicle before the vehicle reached a place of temporary safety. The court explained that a robbery continues, until the robber has won his way to a place of temporary safety, and [c]arjacking, being a species of robbery, follows the same general analysis: flight with the vehicle is inherent to the crime. (Id. at p. 102, fn. omitted, citing People v. Fierro (1991) 1 Cal.4th 173, 226.) We agree with the reasoning and conclusion of the court in United States v. Martinez-Bermudez, supra.

We find further support for our conclusion in the analogous case of People v. Cooper (1991) 53 Cal.3d 1158 (Cooper). In Cooper, the Supreme Court addressed whether a getaway driver could be convicted of aiding and abetting a robbery, rather than merely to being an accessory after the fact, if the jury found that he did not form the requisite intent to facilitate or encourage commission of the robbery before the perpetrators flight with the stolen property. (Id. at p. 1160.) The court stated: As our cases recognize, the prosecution must show an aider and abettor intended to facilitate or encourage the principal offense prior to or during its commission. The main issue here, therefore, is the duration of the commission of a robbery for purposes of determining whether a getaway driver is liable as an aider and abettor rather than an accessory. [] We conclude that the commission of a robbery for purposes of determining aider and abettor liability continues until all acts constituting the robbery have ceased. The asportation, the final element of the offense of robbery, continues so long as the stolen property is being carried away to a place of temporary safety. Accordingly, in order to be held liable as an aider and abettor, the requisite intent to aid and abet must be formed before or during such carrying away of the loot to a place of temporary safety. Therefore, a getaway driver who has no prior knowledge of a robbery, but who forms the intent to aid in carrying away the loot during such asportation, may properly be found liable as an aider and abettor of the robbery. (Id. at pp. 1160-1161; first italics added.)

We therefore conclude that the challenged instruction and responses to jury questions were not erroneous.

Moreover, even if any error occurred, it was harmless. The defense theory of the case (apart from the duress theory) was that Lopez jumped into Molinas van, ordered him out, and then got into the drivers seat. Defendant then got into the van, and Lopez drove off. Even if we accept this version of the facts as true, defendant got into the van before there was any movement or asportation of the vehicle. Thus, even under the defense theory of the case, the carjacking was indisputably still in progress when defendant entered the van. Moreover, Lopez testified he yelled pretty loud[ly] for the driver to get out of the van, and defendant was right behind him when he yelled at the driver. We consider it highly unlikely that any reasonable jury could have found that Lopezs taking the van came as a surprise to defendant the van was the third vehicle the duo had stolen in concert that same afternoon.

B. Denial of Motion to Strike Prior Convictions

Defendant suffered convictions in 1988 for kidnapping and robbery. The convictions originally arose from the same case, and in the instant case, they were alleged as strike priors. Defendant contends the trial court abused its discretion in refusing to strike his prior convictions under the Three Strikes Law. He argues the trial court improperly relied upon the facts underlying unrelated pending charges and failed to give him individualized consideration.

1. Background

Defendant moved before trial that the trial court dismiss his prior strike convictions pursuant to section 1385. The trial court refused the request without prejudice.

After the jury found him guilty, defendant renewed the motion. At the hearing on the motion, the trial court stated it had reviewed and considered the probation report and the preliminary hearing transcript regarding defendants 1988 strike priors for robbery and kidnapping. The trial court heard statements and/or read letters from defendants wife, stepmother, niece, sister-in-law, brother, father, and sons.

Dr. Monica Nichols, a psychiatrist who had been treating defendant during his incarceration, testified she had diagnosed defendant with bipolar II disorder, and he was responding favorably to treatment. In her opinion, if his mental illness were treated and he received treatment for substance abuse, his prognosis would be quite good, particularly because he had strong family support. Dr. Nichols further testified that a person in the manic phase of bipolar disorder is more likely to become violent, take risks, and be dangerous, and drug use can make the persons condition worse. A person who has a substance abuse problem is always at risk for relapse.

Defendants therapist, Jeffrey Desuacido, testified he had been seeing defendant in individual therapy since 2003, and defendant seemed sincere in his desire to change his behavior.

Defendant testified about his criminal history, work history, and drug addiction. He was 37 years old at the time of sentencing. He had been convicted of his strike priors in 1988 when he was 18 years old, and both prior crimes had involved the same victim. He was not then using drugs. Defendant was paroled in 1991 and was discharged from parole in 1994. He had been employed at the same job for 10 years, but he became a methamphetamine addict in 1999. He never received treatment for his drug addiction, and he was unaware he had a bipolar disorder until his recent diagnosis. At the time of his offenses, he had been up for days on methamphetamine, and he believed people were chasing him. He expressed remorse for taking the vehicles and indicated he planned to continue taking his medications and seek help for his drug addiction. He had strong family support to assist him.

The probation report sets forth the factual background for defendants prior strike convictions of kidnapping and robbery. Defendant and a cohort, armed with metal bars, accosted a security guard at a railroad storage lot, robbed him, and shut him in the trunk of a vehicle. They moved the vehicle to another part of the lot and then removed nine sets of tires and wheels from other cars in the lot.

Defendants pretrial request to strike a strike prior noted that defendant had various criminal charges pending in Riverside County and set forth the factual background of those charges. In November 2002, defendant had paid an animal hospital for services to his dog, using a credit card that did not belong to him. He was charged with forged use of an access card in violation of section 484g, subdivision (a). On January 3, 2003, defendant had been stopped for driving a vehicle with an expired registration. Defendant admitted to the officers he did not have a drivers license. The officers saw a handgun on the front seat of defendants car and arrested him. In the search pursuant to arrest, the officers found a bindle of methamphetamine in his pocket. Defendant was under the influence of methamphetamine. He was charged with possession of methamphetamine and possession of a firearm by a convicted felon.

At the hearing on defendants renewed motion to strike his prior strikes, the prosecutor represented that defendant had another criminal case pending in San Bernardino County involving eight felony counts and a misdemeanor count based on defendant using a false name in attempting to get credit and for obtaining a car using some elses credit in December 2002. Defendant also had a charge for battery pending because of an incident in jail.

The trial court denied the motion based on the conclusion that defendant was probably incapable of maintaining a crime-free and drug-free life, defendants prior criminal history, the seriousness of the present crimes, the fact that other felonies were pending in two counties that could subject defendant to Three Strikes sentences, and the fact that defendant committed new crimes even after his conviction of vehicle theft in 2000 when he was a potential third striker.

2. Analysis

In People v. Williams (1998) 17 Cal.4th 148, 160 (Williams), the Supreme Court held that in deciding whether to strike a prior-conviction allegation under the Three Strikes law, the trial court must look within the scheme in question, as informed by generally applicable sentencing principles. . . . [N]o weight whatsoever may be given to factors extrinsic to the [Three Strikes] scheme, and the sentencing court must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the schemes spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies. (Id. at pp. 160-161.) We review the trial courts decision under the deferential abuse of discretion standard. (People v. Carmony (2004) 33 Cal.4th 367, 374.)

The hearing on defendants posttrial motion to strike comprises approximately 75 pages of the reporters transcript. In addition to hearing the testimonies of numerous witnesses and argument of counsel, the trial court reviewed lengthy written materials. Defendants contention that the trial court failed to give him individualized consideration is palpably meritless.

Defendant next argues that because his crimes were the direct result of the drug addiction he was attempting to treat, the trial court should have granted leniency by striking his priors. However, the trial court expressly considered defendants drug addiction and determined defendant was probably incapable of maintaining a life free of drug use and crime. In People v. Gaston (1999) 74 Cal.App.4th 310, the court rejected drug dependency as a circumstance justifying striking a strike prior. The court stated, Although drug use appears to be an underlying factor in [appellants] criminal behavior, and in fact may be the root cause thereof, the record is barren of any attempts by [appellant] to root out such destructive drug dependency. Accordingly, his drug dependency does not fall into the category of mitigating circumstances. (Id. at p. 322, second brackets added.)

Finally, defendant contends the trial court erred in considering the facts of pending charges in denying his motion to strike his priors. In making that argument, defendant apparently attempts to draw a distinction between the use of the facts underlying the charged offenses, which he contends was improper, and the use of the facts of his arrests, about which he concedes the court need not turn a blind eye. In our view, that is a distinction without a difference the trial court is entitled to consider the defendants entire background in determining whether to exercise its discretion to strike a prior. (See Williams, supra, 17 Cal.4th at p. 161.)

We conclude that contrary to defendants arguments, his current and prior offenses as well as the circumstances of his background, character, and prospects support the trial courts denial of the request to strike the strike priors. The nature and circumstances of the present felonies, including the violent crime of carjacking, certainly place defendant well inside the spirit of the Three Strikes law. (See generally People v. Strong (2001) 87 Cal.App.4th 328, 336-338, 344.) Similarly, defendants prior strikes involved force and violence. And defendant was on probation for a 2000 offense when he committed the current crimes. The trial court did not abuse its discretion in refusing to strike defendants priors.

IV. DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST

Acting P. J.

We concur:

MCKINSTER

J.

RICHLI

J.

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Analysis and review provided by Vista Property line attorney.

^[1] All further statutory references are to the Penal Code unless otherwise specified.

^[2] Lopez was originally charged with the same offenses as defendant. Lopez pleaded guilty to one count of carjacking, two counts of vehicle theft as a repeat offender, and two counts of receipt of stolen property. He was sentenced to prison for a total term of six years.

^[3] The trucks owner was installing tile at the residence, and he had left the keys in the truck.

^[4] Defense counsel objected as follows: We are objecting to the giving of [CALJIC No.] 9.40.1, as modified, to put in carjacking in place of robbery because we believe there are additional factors in a robbery itself that does not affect the carjacking.

^[5] The unmodified version of CALJIC No. 9.40.1 is identical to the version of the instruction read to the jury in the present case, with the exception that the unmodified version refers to the crime of robbery rather than carjacking.

^[6] The first note asked if the language in the carjacking instruction referring to person was singular or plural [i]f multiple principals are involved in the same crime or acts thereof . . . . Over objection, the trial court responded that the term person applied to anyone whom you believe has committed a crime, if either a principle [sic] or aider and abettor. Another note requested readbacks of portions of Molinas testimony and the tape of his 911 call and of portions of the testimonies of Parnau, Lopez, and another witness. The third note asked for readback of the testimonies of Dimmerling, Richardson, and a deputy, and the note further asked if defendant had access to juror information. The court provided the readback testimony and informed the jury that juror information was sealed and could be unsealed only on a showing of good cause.