Filed 12/18/17 P. v. Marzetta CA3
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

ANDRE RAMON MARZETTA,

Defendant and Appellant.
C081141

(Super. Ct. No. 15F04792)




A jury found defendant Andre Ramon Marzetta guilty of taking or driving a vehicle without the owner’s consent (Veh. Code, § 10851, subd. (a); count one) and buying or receiving a stolen automobile (Pen. Code, § 496d, subd. (a); count two). It also found that the value of the Camry exceeded $950. In a bifurcated proceeding, the trial court found true allegations defendant had one prior strike conviction (§§ 667, subds. (b)-(i) & 1170.12) and served a prior prison term (§ 667.5, subd. (b)). The trial court sentenced defendant to an aggregate term of six years in state prison, consisting of the upper term of three years on count one, doubled for the prior strike. The trial court stayed execution of defendant’s sentence on count two pursuant to section 654 and struck the prior prison term enhancement.
Defendant appeals, raising evidentiary and instructional errors. He also asserts that his conviction for receiving a stolen vehicle should be reversed because he cannot stand convicted of both stealing and receiving the same property. Finding no error, we shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Maria R.’s 1992 Toyota Camry was taken from her apartment complex between 6:30 a.m. and 8:30 a.m. on August 3, 2015. She had left an extra key inside the Camry and may have forgotten to lock it the night before. She had not given anyone permission to drive the car.
Roughly 16 hours later, shortly after midnight on August 4th, defendant drove the Camry to a Shell station located roughly three miles from Maria’s apartment. Defendant was accompanied by Gregory Jones. Defendant parked the Camry next to the gas pumps, and he and Jones went inside the convenience store at the gas station.
Minutes later, Officer Joseph Ellis with the Sacramento Police Department arrived at the gas station to buy a soda. As he pulled in, he noticed the Camry parked at one of the gas pumps. There was no one inside the car or at the gas pumps. Before going inside, Ellis “ran” the Camry’s license plate to see if the car was stolen. Ellis explained that Camrys are relatively easy to steal and are one of the most stolen cars. Ellis received an alert that the Camry had been reported stolen the previous day.
As Ellis was running the license plate he saw defendant and Jones inside the convenience store looking out the window. It appeared to Ellis that defendant and Jones saw his patrol car. Seconds later, defendant dropped the key to the Camry on the floor of the convenience store.
As Ellis sat in his patrol car waiting for backup, defendant and Jones exited the store, followed by a female. Defendant and the female walked toward a black sport utility vehicle (SUV) parked at the pumps, and Jones walked toward the street. Neither defendant nor Jones walked toward the Camry.
Officer Jyotis Hasegawa with the Sacramento Police Department arrived just as the men were leaving the convenience store. Ellis instructed Hasegawa to detain defendant while he went after Jones.
In 1989, when defendant was 13 years old, he was stopped by two Sacramento Police officers while driving a car that had been reported stolen the day before. Defendant told the officers that “his uncle’s friend” had given him the car. When asked if he knew Ernestine Blankenship, the car’s owner, defendant responded, “[T]hat’s the guy.”
Defendant did not testify at trial. He called Marc Jones, who testified that in July 2015, he had been given the Camry, along with the title and registration, by “Maria,” and later sold the car to Tanya Ivory for two grams of methamphetamine and $70. On cross-examination, Marc admitted using methamphetamine and having prior convictions for “unlawful driving or taking of a vehicle,” felony evading a peace officer, and second degree burglary. Maria previously testified that she did not know defendant or Marc.
DISCUSSION
I
The Trial Court Did Not Abuse Its Discretion in Admitting Evidence That Defendant Was Stopped Driving a Stolen Vehicle in 1989, and Any Possible Error Was Harmless
Defendant first contends that the trial court abused its discretion in admitting evidence that he was stopped driving a stolen vehicle in 1989 to show his knowledge and intent under Evidence Code section 1101, subdivision (b) because the prior incident was too remote and not sufficiently similar to the present offense. As we shall explain, the trial court acted within its discretion in admitting the challenged evidence, and in any event, any error was harmless.
Prior to trial, the prosecutor moved to admit evidence of three prior incidents under Evidence Code section 1101, subdivision (b) to show defendant’s intent and knowledge that the car was stolen. As relevant here, the prosecution moved to admit evidence that in 1989, defendant was arrested driving a Chevy Citation. The vehicle had been reported stolen the day before. When asked about the vehicle being stolen, defendant denied that it was stolen, and said that his uncle’s friend had given it to him to drive. The keys to the vehicle were inside it.
Defendant objected to the admission of evidence concerning the 1989 incident, arguing the incident occurred when he was 13 years old and was remote.
The trial court stated that it was tentatively inclined to admit evidence concerning the 1989 incident and exclude evidence of the other two incidents, but that it would reserve issuing a final ruling until after learning what defendant’s two anticipated witnesses (Tanya Ivory & Marc Jones) would say. In doing so, the trial court observed that the 1989 incident appeared to be “substantially similar” to the current offense, noting that in the prior incident the vehicle had been reported stolen one day earlier, keys belonging to the vehicle were found inside the vehicle, and defendant denied knowing that the vehicle was stolen and asserted that his uncle’s friend had given him the car a couple of days earlier. The trial court was mindful that the incident was remote but observed that defendant’s incarceration during 15 of the subsequent 26 years “sort of balances things back toward admission.” The trial court ultimately stood by its initial findings and ruled that evidence concerning the 1989 incident was admissible to show defendant’s knowledge and intent, and that evidence concerning the other two incidents would be excluded.
The evidence admitted at trial concerning the 1989 incident is summarized in the factual and procedural background. (Ante, p. 3.) The trial court instructed the jury in the language of CALCRIM No. 375 in pertinent part as follows: “The People did present evidence the defendant committed the offense of unlawful driving or taking a vehicle, occurring August 21st, 1989. That was not charged in this case. You may consider this evidence only if the People have proved, by a preponderance of the evidence, that the defendant, in fact, committed that earlier offense. [¶] . . . [¶] If you decide the defendant committed that other earlier offense, you may, but are not required to, consider that evidence for the limited purpose of deciding whether or not the defendant acted with the intent to deprive the owner of possession or ownership of the vehicle for any period of time in this case. [¶] . . . Do not consider this evidence for any other purpose. And do not conclude from this evidence that the defendant has a bad character or is disposed to commit crime. [¶] If you conclude the defendant committed the uncharged offense, that conclusion is only one factor to consider along with all of the other evidence. It is not sufficient, by itself, to prove the defendant is guilty of the charge set forth in Count 1, Vehicle Code Section 10851. The People must still prove every charge beyond a reasonable doubt.” (Italics added.)
Generally, the prosecution may not use a defendant’s prior uncharged act as evidence of a disposition to commit a charged criminal act. (Evid. Code, § 1101, subd. (a).) But such evidence is admissible “when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge . . .) other than his or her disposition to commit such an act.” (Evid. Code, § 1101, subd. (b).) “To be admissible to show intent, ‘the prior conduct and the charged offense need only be sufficiently similar to support the inference that defendant probably harbored the same intent in each instance.’ ” (People v. Cole (2004) 33 Cal.4th 1158, 1194 (Cole), quoting People v. Yeoman (2003) 31 Cal.4th 93, 121; accord People v. Ewoldt (1994) 7 Cal.4th 380, 402 (Ewoldt).)
Because evidence of other crimes may be highly inflammatory, the admission of such evidence must “ ‘ “not contravene other policies limiting admission, such as those contained in Evidence Code section 352.” ’ ” (People v. Lewis (2001) 25 Cal.4th 610, 637, quoting Ewoldt, supra, 7 Cal.4th at p. 404.) Under Evidence Code section 352, the probative value of a defendant’s prior act must not be substantially outweighed by the probability that its admission would create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. (Ewoldt, at p. 404; Evid. Code, § 352.) “We review for abuse of discretion a trial court’s rulings on relevance and admission or exclusion of evidence under Evidence Code sections 1101 and 352.” (Cole, supra, 33 Cal.4th at p. 1195.)
Defendant’s intent and knowledge were issues in this case. Insofar as there was surveillance video of defendant driving the Camry, whether he knew the car was stolen and thus intended to deprive the owner of possession for any period of time were the only issues.
The prior incident was sufficiently similar to the present offense. In both the prior incident and present offense, defendant was caught driving a car shortly after it had been reported stolen, the keys belonging to the vehicles were found inside them, and defendant denied knowing the cars were stolen.
Evidence concerning the 1989 incident was sufficient to support a finding that, at the time of that incident, defendant had the requisite intent to deprive the vehicle’s owner of possession or ownership. That he held this intent on a prior occasion is probative of the question at issue here—whether he was driving the stolen car with the intent to deprive the owner of possession or ownership, or lacked that intent and believed he was driving with the permission of the owner.
Defendant argues that the probative value of the prior incident evidence was diminished because the incident was so remote, having been committed 26 years before the charged offenses when he was 13 years old. Although the prior incident occurred 26 years before the present offense, it was not so remote as to mandate its exclusion because, as the trial court observed, defendant was incarcerated for 15 of the intervening years. (See People v. Peete (1946) 28 Cal.2d 306, 308-309, 318-319 [24-year lapse since prior conviction was “not significant” where the defendant had been incarcerated for 18 of those years].)
In sum, we find that the trial court did not abuse its discretion in admitting evidence concerning the 1989 incident, and even if it had, the error was harmless because there is no reasonable probability that the jury would have reached a more favorable result had it not learned of the 1989 incident. (See People v. Fuiava (2012) 53 Cal.4th 622, 671.) As detailed above, surveillance video from the gas station showed defendant driving the Camry, and evidence was presented that defendant attempted to distance himself from the Camry after seeing Officer Ellis’s patrol car in the parking lot. Surveillance video showed defendant dropping the key to the Camry seconds after Officer Ellis testified he observed defendant and Jones look out the store’s window in the direction of his patrol car. And upon leaving the store, neither defendant nor Jones walked toward the Camry. On the record before us, it is not reasonably probable that the jury would have reached a more favorable verdict had it not learned of the 1989 incident.
II
The Trial Court Properly Excluded Ivory’s Out-of-court Statement
Defendant next claims that the trial court abused its discretion in not admitting an out-of-court statement by Tanya Ivory as a declaration against interest under Evidence Code section 1230. The statement was properly excluded.
In October 2015, Ivory was interviewed by an investigator with the Sacramento County Public Defender’s Office. She told the investigator that the day before defendant was arrested, she purchased the Camry from Marc for $375 or $400 in cash. Marc told her that he was given the car by a woman who owed him money. Marc gave Ivory the title to the Camry and a bill of sale, but she had since misplaced them. Later that night, she was hanging out with defendant. About 3:00 or 4:00 a.m. the following morning, she lent defendant the Camry to go buy cigarettes. That was the last time she saw him. Ivory did not know the car was stolen.
The trial court appointed counsel to represent Ivory. Outside the presence of the jury, Ivory invoked her Fifth Amendment right to remain silent. At that point, the defense indicated that it wanted to offer her statement to the investigator as a declaration against interest. The trial court declined the defense’s request, finding that the statement was not against Ivory’s interest. The trial court reasoned, “The problem is, it’s an exculpatory – it’s . . . a statement indicating your client didn’t do something and saying that she did a whole bunch of things that are perfectly reasonable. . . . [I]t could be that some of those things are true. But if they were true, there would be no reason to make a Fifth Amendment privilege; right? [¶] If that’s what really happened – if that’s what happened she could get up and testify to it freely, without any risk of there being a criminal prosecution. [¶] . . . [¶] . . . You don’t get a statement against penal interest by making an exculpatory statement on behalf of somebody else, then refusing to testify, and then getting the very statement in front of the jury.”
Pursuant to Evidence Code section 1230, “Evidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, was so far contrary to the declarant’s pecuniary or proprietary interest, or so far subjected him to the risk of civil or criminal liability, or so far tended to render invalid a claim by him against another, or created such a risk of making him an object of hatred, ridicule, or social disgrace in the community, that a reasonable man in his position would not have made the statement unless he believed it to be true.” “With respect to the penal interest exception, the proponent of the evidence ‘must show that the declarant is unavailable, that the declaration was against the declarant’s penal interest when made and that the declaration was sufficiently reliable to warrant admission despite its hearsay character.’ [Citations.]” (People v. Lawley (2002) 27 Cal.4th 102, 153.) “We review a trial court’s decision as to whether a statement is against a defendant’s penal interest for abuse of discretion.” (Ibid..)
We fail to see how anything Ivory told the investigator could be considered to be against her penal interest. She told the investigator that she purchased the Camry for cash not knowing it was stolen. The trial court acted well within its discretion in concluding that Ivory’s statement was not against her interest and excluding it.
III
Defendant Was Properly Convicted of Violating Vehicle Code Section 10851 and Section 496d
Defendant next claims that “allowing [him] to be convicted of both Vehicle Code section 10851, subdivision (a), and Penal Code section 496d, subdivision (a), would run afoul of the well-established principal that a defendant may not be convicted of stealing and receiving the same property.” As we shall explain, both convictions are proper under the circumstances of this case.
Vehicle Code “section 10851 [subdivision] (a) ‘proscribes a wide range of conduct.’ [Citation.] A person can violate [Vehicle Code] section 10851 [subdivision] (a) ‘either by taking a vehicle with the intent to steal it or by driving it with the intent only to temporarily deprive its owner of possession (i.e., joyriding).’ [Citation.]” (People v. Garza (2005) 35 Cal.4th 866, 876 (Garza).) “A person who violates [Vehicle Code] section 10851 [subdivision] (a) by taking a car with the intent to permanently deprive the owner of possession, and who is convicted of that offense on that basis, cannot also be convicted of receiving the same vehicle as stolen property. [Citations.] If, on the other hand, a [Vehicle Code] section 10851 [subdivision] (a) conviction is based on posttheft driving, a separate conviction under section 496(a) for receiving the same vehicle as stolen property is not precluded.” (Ibid.)
In Garza, a police officer found the defendant sitting in a car that had been reported stolen. (Garza, supra, 35 Cal.4th at p. 872.) The car was parked in the middle of a strip mall parking lot two to three blocks from where it had been stolen. (Ibid.) The defendant was seated in the driver’s seat, the key was in the ignition, and the engine was running. (Ibid.) The defendant was awake but seemed sleepy and appeared to be under the influence of a controlled substance. (Ibid.) “[T]he evidence at trial adequately supported the [Vehicle Code] section 10851 [subdivision] (a) conviction on either a taking or a posttheft driving theory, the prosecutor argued both the taking and the posttheft driving theories to the jury, the trial court’s instructions did not require the jury to choose between the theories and did not explain the rule prohibiting convictions for stealing and receiving the same stolen property, and the jury’s guilty verdict did not disclose which theory or theories the jurors accepted.” (Id. at p. 871) Under the circumstances of that case, the court held that although the trial court erred in failing to instruct the jury that it could not convict the defendant both for theft and for receiving the same stolen property, the error was harmless because it was not reasonably probable that that a properly instructed jury would have reached a result more favorable to defendant by not convicting him of both Vehicle Code section 10851, subdivision (a) and section 496, subdivision (a). (Garza, 35 Cal.4th at p. 872.) “The only reasonable inference that a juror could draw from the evidence at trial [citation] was that defendant had driven the car there before being overcome by the effects of drug intoxication. The theft of the vehicle six days earlier was long since complete, and the driving therefore constituted a separate, distinct, and complete violation of [Vehicle Code] section 10851 [subdivision] (a). Under these circumstances, we conclude that it is not reasonably probable that a properly instructed jury would have found defendant guilty of violating [Vehicle Code] section 10851 [subdivision] (a) by stealing the car but not by posttheft driving.” (Id. at p. 882.) Accordingly, the court upheld both convictions by construing defendant’s conviction under Vehicle Code section 10851, subdivision (a) as a nontheft conviction for posttheft driving. (Ibid.)
Here, as in Garza, the only reasonable inference a juror could draw from the evidence at trial was that defendant drove the car to the gas station. The theft of the vehicle 16 hours earlier was long since complete, and the driving therefore constituted a separate, distinct, and complete violation of Vehicle Code section 10851, subdivision (a). Indeed, apart from the evidence defendant drove the car, there was no evidence defendant had taken or was involved in taking the Camry, and the prosecutor’s closing argument focused on the driving aspect of Vehicle Code section 10851, subdivision (a), not the taking. On this record, it is not reasonably probable that the jury would have found defendant stole the Camry but did not engage in any posttheft driving. (Garza, supra, 35 Cal.4th at p. 872.) Accordingly, both convictions will stand.
IV
Any Error in Failing to Instruct the Jury on How to Value the Camry Is Harmless Because Proposition 47 Does Not Apply
Finally, defendant claims that the trial court erred in failing to instruct the jury on how to value the Camry, and thus, “[t]he finding that the value of the vehicle was over $950 should be reversed, [defendant’s] convictions should be treated as misdemeanors, and his punishment should be amended accordingly.” We are not persuaded.
The Camry’s value is relevant only if Proposition 47--which reduced the punishment for certain theft and drug-related offenses, making them punishable as misdemeanors rather than felonies--applies to offenses under Vehicle Code section 10851 and section 496d. As relevant here, Proposition 47 added section 490.2, which provides in relevant part that “[n]otwithstanding Section 487 or any other provision of law defining grand theft, obtaining any property by theft where the value of the money, labor, real or personal property taken does not exceed nine hundred fifty dollars ($950) shall be considered petty theft and shall be punished as a misdemeanor . . . .” (§ 490.2, subd. (a), italics added.)
Our Supreme Court recently determined that section 490.2 includes convictions for vehicle theft under Vehicle Code section 10851 where it is shown the vehicle was worth $950 or less, but that it does not apply to convictions for posttheft driving under that code section. (People v. Page (Nov. 30, 2017, S230793) ___ Cal.5th ___ [2017 Cal. LEXIS 8926, 2-3] (Page).) The issue in Page was whether the defendant was entitled to be resentenced under Proposition 47 for a prior conviction for taking or driving a vehicle in violation of Vehicle Code section 10851. (Id. at pp. ___ [2017 Cal. LEXIS 8926, 1-2].) With respect to determining whether a Vehicle Code section 10851 conviction was based on vehicle theft, as opposed to posttheft driving, the court instructed: “Where the trial testimony . . . shows posttheft driving--that is, driving the vehicle following a ‘substantial break’ after the vehicle had initially been stolen--the defendant cannot establish eligibility [for resentencing] under section 1170.18 by declaring or testifying that he or she also stole the vehicle: such testimony would not prove the conviction was based on theft rather than on posttheft driving, and therefore would fail to establish that the defendant would only have been guilty of a misdemeanor (petty theft under section 490.2, subd. (a)) had Proposition 47 been in effect at the time of the offense.” (Id. at pp. ___ [2017 Cal. LEXIS 8926, 18-19].) While we are not dealing with a petition for resentencing here, we nevertheless are guided by the court’s ruling.
As detailed above, the evidence adduced at trial I this case showed “posttheft driving--that is, driving the vehicle following a ‘substantial break’ after the vehicle had been stolen . . . .” (Page, supra, ___ Cal.5th at p. ___ [2017 Cal. LEXIS 8926, 18].) Thus, even assuming that the evidence established and the jury found that Camry’s value did not exceed $950, no juror reasonably could conclude that defendant was guilty only of petty theft. Because it cannot be said that defendant’s conviction for violating Vehicle Code section 10851 was based on theft rather than posttheft driving, any error in failing to instruct the jury on how to value the Camry was harmless.
We next consider whether Proposition 47 applies to offenses under section 496d. Defendant first asserts that “[t]he fact that receiving stolen property of a low value generally qualifies for Proposition 47 relief suggests a legislative intent to include section 496d in the crimes affected by Proposition 47.” He is mistaken. Section 496, as amended by Proposition 47, makes it a misdemeanor to buy or receive “any property” known to have been stolen “if the value of the property does not exceed nine hundred fifty dollars” and the “person has no prior convictions for” certain specified offenses not relevant here. (§ 496, subd. (a).) On the other hand, section 496d was not amended by Proposition 47 and remains a so-called wobbler offense that is punishable as either a felony or a misdemeanor. (§ 496d, subd. (a).)
Defendant also asserts that receiving a vehicle under section 469d is a “theft-related” offense, and therefore, falls within section 490.2. Section 490.2 unambiguously provides that “obtaining any property by theft” is petty theft and is to be punished as a misdemeanor if the value of the property taken is $950 or less. (§ 490.2, subd. (a).) Buying or receiving a stolen vehicle as prohibited under section 496d is not tantamount to obtaining property by theft. The person buying or receiving the stolen vehicle does not obtain it by theft. Indeed, if section 490.2 applied to receiving stolen property offenses, as defendant contends, there would have been no need to amend section 496.
Because defendant would not be entitled to have his conviction for violating section 496d (receiving a stolen vehicle) reduced to a misdemeanor even if the evidence showed and the jury determined the Camry’s value exceeded $950, any error in failing to instruct the jury on how to value the Camry was harmless.
DISPOSITION
The judgment is affirmed.


/s/
Blease, Acting P. J.

We concur:


/s/
Nicholson, J.


/s/
Renner, J.