P. v. Gonzalez

Filed 10/25/06 P. v. Gonzalez CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Hector Oswaldo Gonzalez was tried before a jury and convicted of receiving stolen property, providing false information to a peace officer, unlawfully taking or driving a vehicle and forgery of a registration document for a motor vehicle. (Pen. Code, §§ 496, subd. (a), 148.9, subd. (a); Veh. Code, §§ 10851, subd. (a), 4463, subd. (a)(1).) He appeals from a judgment sentencing him to prison for an aggregate term of three years eight months, consisting of the three-year upper term for taking a vehicle and a consecutive eight-month term (one-third the middle term) for forgery of a registration document.

Appellant contends his convictions must be reversed because (1) the trial court erroneously admitted the preliminary hearing testimony of two accomplices without an adequate showing that the prosecution had exercised due diligence to secure their attendance at trial; (2) the court abused its discretion and violated his right to due process when it admitted evidence of appellant's prior criminal conduct; and (3) the court gave CALJIC No. 2.62, regarding a defendant's failure to explain the evidence against him, despite there being no basis for the instruction. Appellant alternatively argues that resentencing is required because the consecutive term imposed for the forgery count should have been stayed under Penal Code section 654 and because the court imposed an upper term and consecutive sentence based on facts not found true by a jury, in violation of Blakely v. Washington (2004) 542 U.S. 296. We affirm.

FACTS

A Toyota Tacoma pickup truck owned by Jerry Nichols was stolen in Santa Maria on January 21, 2005. On February 12, 2005, two Lompoc Police Department officers noticed a Toyota Tacoma pickup truck parked in Lompoc with a "for sale" sign written in Spanish and placed in its window. The officers were suspicious because a similar sign had been placed on another vehicle a few weeks earlier and that vehicle had been stolen. The license plate and vehicle identification number (VIN) on the Tacoma truck did not match, but the VIN matched the truck that was reported stolen by Nichols.

Police officers surveilling the scene saw Jose Mondragon approach the truck, open the door with a key, remove the "for sale" sign, and return to a Honda sedan occupied by three other people. Other officers stopped the Honda. Gamalene Lopez was the driver, his girlfriend Xiomara Cruz was sitting in the front passenger seat, and appellant was sitting with Mondragon in the back seat. Appellant provided false names when asked by the officers to identify himself.

Several cell phones were discovered inside the car, one of which matched the number on the "for sale" sign. Appellant admitted that this phone belonged to him. A search of the Honda also led to the discovery of several metal blanks used for reproducing keys, forged blank DMV registration documents, a key to the Tacoma pickup and a typewriter. Four blank certificates of title bore the same number, even though a certificate of title should bear a unique number.

Cruz had receipts for two motel stays in Santa Maria and Lompoc on January 19, 2005, and February 9, 2005. She also had a receipt from Armstrong Lock and Key. A locksmith may make a duplicate key for a vehicle if provided with the VIN.

Having pled guilty to a misdemeanor count of receiving stolen property based on her involvement in current offenses, Cruz testified at appellant's trial. She explained that she had accompanied her boyfriend Lopez on two trips to Santa Maria and Lompoc. Appellant and another man came with them and they all went to a locksmith together. The third man in their group had driven the Tacoma pickup from Santa Maria to Lompoc and they had moved it several times on the day of their arrest. Appellant and the other man took turns driving the pickup.

Lopez and Mondragon were witnesses at appellant's preliminary hearing and their testimony at that prior proceeding was read to the jury after the court determined they were unavailable as witnesses. Lopez claimed that appellant had paid him $1,500 to drive him from Los Angeles to Santa Maria. According to Lopez, appellant and Mondragon were selling the Tacoma truck, and the keys and forged documents belonged to them. Mondragon testified that he was trying to sell the pickup truck, which appellant had stolen. The parties stipulated that Lopez and Mondragon had both been convicted of receiving stolen property based on their involvement in the current offenses and had already been placed on probation when they testified at the preliminary hearing.

Appellant testified and denied knowing that the Tacoma truck had been stolen. He claimed that Mondragon had sold him a truck the previous year that turned out to be stolen and that he went to Lompoc with Mondragon to get his money back. Appellant claimed to know nothing about the forged documents found inside Mondragon's Honda, and he denied providing a false name to police officers at the scene.

DISCUSSION

Preliminary Hearing Testimony

Appellant argues that the preliminary hearing testimony of Lopez and Mondragon should have been excluded because the prosecution did not make diligent efforts to secure their presence at trial. We disagree.

Evidence Code section 1291, subdivision (a)(2) establishes a hearsay exception for prior sworn testimony when the declarant is unavailable as a witness and "[t]he party against whom the former testimony is offered was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing." A witness is unavailable within the meaning of this section when "[a]bsent from the hearing and the court is unable to compel his or her attendance by its process" or when "[a]bsent from the hearing and the proponent of his or her statement has exercised reasonable diligence but has been unable to procure his or her attendance by the court's process." (Evid. Code, § 240, subd. (a)(4) & (5).) Although former case law suggested that a witness is unavailable whenever he or she is outside the country, the confrontation clause requires reasonable efforts by the prosecution to secure the attendance of such witnesses when those efforts could result in their attendance at trial. (People v. Sandoval (2001) 87 Cal.App.4th 1425, 1441.)

In support of its request to introduce the former testimony of Lopez and Mondragon, the prosecution submitted a declaration by an investigator with the district attorney's office who began looking for them four months before the trial began. The investigator discovered that they had been released from custody and had been deported to Mexico. He contacted their probation officers and determined that they had not been reporting on probation. He made a number of efforts to contact people at their former addresses in Los Angeles, in the event they had reentered the country illegally, but found nothing to indicate they had returned.

Appellant acknowledges that the court had no power to compel the attendance of witnesses who were in Mexico. But he claims the prosecution should have contacted the Mexican authorities and sought their assistance in bringing Lopez and Mondragon back to California. Appellant relies primarily on People v. Sandoval, supra, 87 Cal.App.4th 1425, in which the prosecution knew the address of a witness who lived in Mexico and knew the witness was willing to return to the United States and testify if he could do so legally. Despite the witness's cooperation, the prosecution refused to provide $100 so the witness could travel to the consulate in Mexico City and obtain a visa. The court concluded that reasonable efforts had not been made to secure the witness's attendance under these circumstances. Sandoval is distinguishable because the prosecution in that case knew how to contact the witness and the witness had agreed to testify. Sandoval does not stand for the broad proposition that due diligence requires a search for witnesses within a foreign country.

Appellant notes that, in 1991, the United States and Mexico entered into the Treaty on Cooperation Between the United States of America and the United Mexican States for Mutual Legal Assistance. This treaty has a number of provisions that can assist American authorities in procuring the testimony of witnesses located in Mexico. (See People v. Sandoval, supra, 87 Cal.App.4th at pp. 1438-1443.) But the efficacy of those provisions depends on the prosecution's knowledge of the witness's whereabouts within the other country.

As the trial court recognized, the situation in this case is more akin to that in People v. Smith (1980) 112 Cal.App.3d 37, in which the court found that reasonable efforts had been made to locate a witness who had apparently fled to Mexico. The prosecution had attempted to contact the witness at locations within the United States, but had not traveled to Mexico to continue these efforts when the trail led across the border. "Without merit is the contention that the investigator should have gone to Mexico to check the address of [the witness's] parents. A failure to travel out of the country to explore a lead is not sufficient in and of itself to show lack of diligence." (Id. at p. 47.)

Having independently reviewed the declaration of the investigator who attempted to locate Lopez and Mondragon, we conclude that diligent efforts were made to secure their attendance at trial. (People v. Cromer (2001) 24 Cal.4th 889, 901.) The prosecution began searching for them several months before the trial began, then followed reasonable leads and continued with its efforts until it became apparent the witnesses were out of the country. Appellant complains that the prosecution did not seek contact information from the witnesses while they were still in custody, but this does not render inadequate the efforts made. "'[T]he defendant's ability to suggest additional steps . . . does not automatically render the prosecution's efforts "unreasonable." [Citations.] The law requires only reasonable efforts, not prescient perfection.'" (People v. Diaz (2002) 95 Cal.App.4th 695, 706.) "Diligence" connotes "persevering application, untiring efforts in good earnest, efforts of a substantial character," but it does not require that the proponent do everything possible to secure a witness's attendance. (People v. Linder (1971) 5 Cal.3d 342, 347; People v. Lopez (1998) 64 Cal.App.4th 1122, 1128.)

The prosecution made diligent efforts to locate Lopez and Mondragon, as required by Evidence Code sections 1291 and 240. Appellant had a meaningful opportunity to cross-examine those witnesses at the preliminary hearing and was not denied his right to confrontation. (See People v. Carter (2005) 36 Cal.4th 1114, 1171-1173.) The trial court did not err when it admitted the evidence.

Evidence of Prior Criminal Acts

Over defense objection, the prosecution presented evidence that appellant had been involved in four prior auto thefts or attempted auto thefts. The court ruled that these incidents were admissible under Evidence Code section 1101, subdivision (b), to prove intent, knowledge and the existence of a common plan or scheme. We reject appellant's argument that the court abused its discretion in allowing the evidence. (People v. Lewis (2001) 25 Cal.4th 610, 637.)

Evidence that the defendant committed a crime other than that for which he is on trial may not be introduced to prove his bad character or criminal disposition, but may be admissible to prove some material fact in issue, such as intent, knowledge or a common plan or scheme. (People v. Ewoldt (1994) 7 Cal.4th 380, 402-403.) A degree of similarity between the charged and uncharged offenses is required. (Ibid.) Like other circumstantial evidence, admissibility depends on the materiality of the fact that is being proved and the tendency of the prior crime to prove that fact. (People v. Roldan (2005) 35 Cal.4th 646, 705.)

The first of the prior incidents occurred in December 1998, when appellant was stopped by Los Angeles Police Department officers while driving a stolen vehicle. He fled from the officers on foot and provided false information when apprehended. The officers discovered that the car had "cold plates," i.e., plates from another vehicle that did not match the VIN. The second incident was in April 2003, when Los Angeles Police Department officers found appellant crouching down near a Honda Accord while another person acted as a look-out. He was carrying altered and shaved keys and pry marks were discovered on the Honda. In August 2004, the California Highway Patrol stopped appellant while he was driving a stolen Chevrolet pickup truck with plates that did not match the VIN. In November 2004, appellant was the passenger in a stolen vehicle being driven by Mondragon and provided a false name when they were stopped by Highway Patrol officers.

Though not identical to the current offense, these incidents were similar because they involved some combination of the use of "cold plates" to disguise a stolen vehicle, false identification to police, duplicate keys or flight. During the last incident, appellant was discovered in a stolen vehicle with Mondragon, his accomplice in the current case. Taken together, these prior incidents tended to show that when appellant participated in the purported sale of the Tacoma, he did so with the requisite knowledge and intent. The prior offenses also made it more likely that the current offense was part of a common plan to steal vehicles and disguise them through the use of cold plates, rather than a criminal act by Mondragon alone.

Appellant complains that, even if relevant, the prior incidents were more prejudicial than probative under Evidence Code section 352 because they painted him as a car thief. He objected to the 1998 incident alone on this ground, but, even if the issue had been preserved as to all of the priors, the claim would fail on the merits. The incidents were not particularly inflammatory, and the prejudice that arose from their introduction was the prejudice inherent in probative evidence that tends to prove guilt. The jurors were instructed that the evidence was admitted for a limited purpose and could not be used to demonstrate criminal propensity. We presume they followed this instruction and did not make improper use of the evidence. (See People v. Coffman (2004) 34 Cal.4th 1, 83; People v. Scheer (1998) 68 Cal.App.4th 1009, 1023.)

Even assuming that one or more of the prior incidents should have been excluded, reversal is not required because it is not reasonably probable the defense would have obtained a better result. (People v. Felix (1993) 14 Cal.App.4th 997, 1007-1008; see People v. Fudge (1994) 7 Cal.4th 1075, 1111-1112.) Appellant was with Mondragon when Mondragon was removing a "for sale" sign from the stolen vehicle, he admitted owning a cell phone that matched the number on the sign, and his cohorts all testified that he had been involved in the theft and/or attempt to sell the Tacoma. It is not reasonably probable that a jury uninformed of his prior conduct would have failed to convict.

CALJIC No. 2.62

Appellant argues that the court should not have instructed the jury with CALJIC No. 2.62, which provides, "In this case defendant has testified to certain matters. If you find that [a] defendant failed to explain or deny any evidence against [him] introduced by the prosecution which [he] can reasonably be expected to deny or explain because of facts within [his] knowledge, you may take that failure into consideration as tending to indicate the truth of this evidence and as indicating that among the inferences that may reasonably be drawn therefrom those unfavorable to the defendant are the more probable. The failure of a defendant to deny or explain evidence against [him] does not, by itself, warrant an inference of guilt, nor does it relieve the prosecution of its burden of proving every essential element of the crime and the guilt of the defendant beyond a reasonable doubt. If a defendant does not have the knowledge that [he] would need to deny or to explain evidence against [him], it would be unreasonable to draw an inference unfavorable to [him] because of [his] failure to deny or explain this evidence." We disagree that reversal is required.

CALJIC No. 2.62 is an accurate statement of the law and may be given when the defendant testifies but fails to explain material aspects of the prosecution's case. (People v. Sanchez (1994) 24 Cal.App.4th 1012, 1029-1030.) The instruction does not target contradictions between the defendant's testimony and other evidence, but it is appropriate when "the defendant tenders an explanation which, while superficially accounting for his activities, nevertheless seems bizarre or implausible." (People v. Mask (1986) 188 Cal.App.3d 450, 455.)

Appellant testified that he did not know about the stolen truck but came to Lompoc with Mondragon so that Mondragon could give him some money. He claimed he did not give a false name when questioned by police; rather, the officer did not write down the correct name. He explained that the cell phone with the telephone number matching the "for sale" sign was not really his; he had just said it was because he thought that was what the officers expected.

Even if we assume that this testimony did not rise to the level of a bizarre or implausible explanation warranting CALJIC No. 2.62, appellant suffered no prejudice. Our Supreme Court has held that the instruction "suffers no constitutional . . . infirmity" and does not shift the burden of proof to the defense. (People v. Saddler (1979) 24 Cal.3d 671, 681.) Reversal is only required if, under the standard of review applicable to state law error, it is reasonably probable that a result more favorable to the defense would have been obtained absent the instruction. (Id. at pp. 683-684.)

Appellant has not demonstrated prejudice under this standard. "CALJIC No. 2.62 does not direct the jury to draw an adverse inference. It applies only if the jury finds that the defendant failed to explain or deny evidence. It contains other portions favorable to the defense (suggesting when it would be unreasonable to draw the inference; and cautioning that the failure to deny or explain evidence does not create a presumption of guilt, or by itself warrant an inference of guilt, nor relieve the prosecution of the burden of proving every essential element of the crime beyond a reasonable doubt)." (People v. Ballard (1991) 1 Cal.App.4th 752, 756.) The evidence against appellant was strong and his own testimony was not believable, even if he technically "explained" the evidence against him. It is not reasonably probable that the omission of CALJIC No. 2.62 would have produced a different result.

Penal Code Section 654--Vehicle Taking and Forgery Counts

Appellant argues that his consecutive sentence for forging DMV documents under count 3 should have been stayed because it was part of the same indivisible course of conduct as the vehicle taking for which sentence was imposed in count 2. We disagree.

Penal Code section 654 prohibits the imposition of multiple punishment for a single act or indivisible course of conduct. (People v. Hester (2000) 22 Cal.4th 290, 294.) Whether a course of conduct is indivisible depends on the objective and intent of the actor. (People v. Norrell (1996) 13 Cal.4th 1, 6.) We review the trial court's findings on this issue, whether express or implied, in the light most favorable to the sentence imposed and affirm if those findings are supported by substantial evidence. (See People v. Blake (1998) 68 Cal.App.4th 509, 512; People v. Green (1996) 50 Cal.App.4th 1076, 1085.)

The trial court implicitly determined that the forgery count was based on a separate intent and objective than the vehicle taking count. Although both counts were related to the same stolen vehicle, the court reasonably determined that appellant harbored one intent (the intent to steal the truck) when he committed the taking, and a second intent (the intent to obtain money through fraudulent means from an innocent purchaser) when he participated in the forgery of DMV documents. Moreover, several forged DMV documents were recovered by police, suggesting that some of those documents were to be used in the sale of other stolen vehicles. The trial court did not violate Penal Code section 654 when it imposed sentence on both counts.

Blakely v. Washington

Appellant argues that his Sixth Amendment rights were violated because the upper term and consecutive sentences were based on facts that were neither admitted by him nor found true by a jury. (Blakely v. Washington, supra, 542 U.S. 296.) Our Supreme Court rejected these arguments in People v. Black (2005) 35 Cal.4th 1238, and we are bound by that decision.

The judgment is affirmed.

NOT TO BE PUBLISHED.

COFFEE, J.

We concur:

YEGAN, Acting P.J.

PERREN, J.

James F. Rigali, Judge

Superior Court County of Santa Barbara

______________________________

Jerry D. Whatley, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, Paul M. Roadarmel, Jr., Deputy Attorney General, for Plaintiff and Respondent.

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