P. v. Lane

Filed 7/25/06 P. v. Lane CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Fresno County. Gregory T. Fain, Judge.

Kenneth J. Hutz, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Clayton S. Tanaka and Paul A. Bernardino, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant Bobby Darrell Lane was convicted of unlawfully taking or driving a vehicle, burglary, and related charges after he drove off in a truck the owner was trying to sell him and then went to a house and took tools. He argues that the trial court wrongly allowed the prosecution to impeach him with evidence of two prior DUI convictions, both of which included recidivist findings. He also contends that the court erroneously failed to instruct the jury that it could not convict him of both unlawfully taking or driving a vehicle and receiving a stolen vehicle. We conclude there was no prejudicial error and affirm the judgment.

FACTUAL AND PROCEDURAL HISTORIES

Cutberto and Blanca Carrillo parked their red Chevrolet pickup truck in front of their house in Selma and placed a for-sale sign in the windshield. Defendant came to the house at 9:00 o'clock on the morning of November 11, 2004, to inquire about the truck and Cutberto showed it to him. After Cutberto started the engine and got out, defendant got in and drove away. Blanca called the police while Cutberto drove around looking for the truck.

About 4:00 o'clock that afternoon, Cutberto, accompanied by his brother, found the truck a few blocks from the house with defendant standing nearby. When Cutberto demanded the keys, defendant refused and got in the driver's seat. Cutberto's brother punctured a tire with a sharp tool, but the tire did not immediately deflate and defendant drove away. Cutberto and his brother drove after defendant, but defendant escaped.

Later, a few miles away, a 13-year-old boy named Irvin Peña saw defendant on the porch of the Peña home. He hid. When Irvin's older brother, Pedro, came home, defendant fled in the truck and Pedro gave chase in a car. Defendant escaped. Pedro went home and called the police. A toolbox and some tools were missing from the porch.

At 5:14 p.m., a police officer stopped defendant in the truck because of a broken headlight. The officer learned that the truck had been reported stolen. He arrested defendant and impounded the truck, which had some tools in the bed. The flat tire had been changed. At the impound yard, Pedro identified the tools as the ones that had been taken from his porch.

The District Attorney filed an information charging five counts. Counts 1, 2, and 3 pertained to the taking of the tools from the Peña house: (1) residential burglary (Pen. Code, §§ 459, 460, subd. (a));^[1] (2) receiving stolen property (§ 496, subd. (a)); and (3) petty theft with a prior burglary conviction (§ 484, subd. (a)). Count 4 was unlawfully taking or driving a vehicle (Veh. Code, § 10851, subd. (a)), and count 5 was receiving a stolen vehicle (§ 496d). Defendant admitted to the prior burglary conviction.

Defendant's defense at trial was that he did not intend to steal the truck or the tools and that he and the victims had misunderstood each other. He testified that a language barrier prevented him and Cutberto from communicating well, that his intention was to take the truck to a garage for a check on the engine, and that he believed he had Cutberto's permission to drive away. He claimed that neither of the men who demanded the truck several hours later was Cutberto, and he fled because he thought the men were trying to steal the truck. He went to the Peña home, he said, to ask to use the phone because the punctured tire was going flat, but no one answered the door; as he was leaving the yard, he saw the toolbox by the road and thought it was abandoned. Later, he got the tire fixed and planned to take the truck back to the Carrillos' house, but the police pulled him over first. Evidence of defendant's two prior felony convictions for driving under the influence, both of which included findings of still other prior convictions for driving under the influence, was admitted for purposes of impeachment.

The jury found defendant guilty of counts 1, 3, 4 and 5. It found him not guilty of count 2, having been instructed that it could not find him guilty of both stealing the tools and receiving them. It found that the burglary was of the first degree.

The court sentenced defendant to a prison term of four years and eight months: the middle term of four years for count 1, plus a consecutive term for count 4, consisting of one third of the two-year middle term, or eight months. A concurrent term was imposed for count 3 and the sentence for count 5 was stayed pursuant to section 654.

DISCUSSION

I. Drunk driving priors with recidivism findings

Defendant argues that the trial court abused its discretion in admitting his two recidivist drunk-driving convictions to impeach him because these were not necessarily crimes of moral turpitude. We disagree.

Prior convictions are admissible to impeach a witness's credibility only if they involve moral turpitude. (People v. Castro (1985) 38 Cal.3d 301, 314-315.) Further, a conviction may be admitted for this purpose only â€