P. v. Patterson

Filed 9/24/07 P. v. Patterson CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

Defendant Adrienne Patterson was convicted by a jury of vehicle theft (Veh. Code,  10851, subd. (a)), misdemeanor driving under the influence of alcohol (Veh. Code,  23152, subd. (a)), and misdemeanor driving with blood alcohol of .08 or higher (Veh. Code,  23152, subd. (b)); the jury acquitted her of receiving a stolen vehicle (Pen. Code,  496d), and receiving stolen property (Pen. Code,  496, subd. (a)). She was sentenced to prison for two years on the vehicle theft offense, and received concurrent 120-day sentences on the misdemeanor counts. She contends that the vehicle theft conviction was not supported by substantial evidence, that the court erred by giving the CALCRIM No. 362 (consciousness of guilt: false statements) jury instruction, and that her trial counsel provided ineffective assistance by failing to object to this instruction. As we explain below, we find these arguments untenable, and affirm the judgment.

I. BACKGROUND

Pittsburg Police Officer Don Pearman was on patrol in a marked police car around 3:00 p.m. on May 14, 2006, when he noticed defendant in the drivers seat of a white Acura with expired registration tags parked on West 17th Street. Defendant stared at Pearman as he passed by, and she drove off around a corner, running a stop sign. Pearman followed defendant to the driveway of a market where she parked and got out of the car with the engine still running. Pearman caught up with defendant near the vehicle, looked through a passenger side window, and noticed that there was no key in the ignition. Pearman asked defendant where the car keys were, and she said, I have them. When Pearman noted that there was no key in the ignition, defendant said that the keys were in the car.

While Pearman was talking with defendant, police dispatch reported that the car was stolen, and Pearman arrested defendant upon receiving that information. The cars owner, Alyson Barnhart, had parked the car in San Francisco on May 8, 2006, and noticed it missing on May 10. When she left the car on May 8, the doors were locked, the keys were accounted for, and the steering column was undamaged. No one, including defendant, had her permission to possess the car while it was missing.

Pearmans partner, Officer Wilkerson, searched defendant and found no car keys on her person. Pearman found no car keys, registration, insurance, or DMV title documents in the car. He found car maintenance slips with Barnharts name on them in a folder on the back seat, and a Swiss Army knife, with the bottle or wine opener blade open, under the emergency brake. Another officer at the scene inserted the blade into the ignition, and used it to turn the car off and on. Pry marks, scratches, and indentations around the key area of the ignition indicated that objects other than a key had been used there. Barnhart had to replace the ignition after she recovered the vehicle.

Defendant told Pearman that she had bought the car for $2,000, and that she had paperwork for the purchase in the glove compartment of the car.

Raymond Vassalo, a close friend of defendant who was on probation for a misdemeanor theft offense, testified for the defense that he was with defendant in San Francisco on May 9, 2006, when she bought a white Acura for $2,000. The transaction occurred between defendant, and a man and a woman. Vassalo made a call on a payphone while the transaction transpired and did not hear what was said, but saw defendant give the woman money in exchange for the car keys, and saw the man give defendant a piece of paper, which defendant put in the glove box of the car. He and defendant drove away in the car after she bought it.

The police found a handwritten document in the glove compartment that was dated May 9, 2006, and read: I sold a 1993 Acura LT #3E6H943 white 2 door as is for $2,000 to Adrienne Barto.^[[1]] [] All reg is up to date. Will have to put in for lost title with DMV as soon as possible. The document was signed by Steve Mayer, with an address on Pacific Avenue in San Francisco.

The license number, model year, and number of doors identified in this document did not match those of Barnharts car.

II. DISCUSSION

A. Substantial Evidence

Vehicle Code section 10851, subdivision (a) provides: Any person who 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 . . . is guilty of a public offense . . . . The gist of the offense proscribed by Vehicle Code, section 10851, is the taking or driving of a vehicle without the owners consent and with the specific intent to deprive the owner, permanently or temporarily, of title to or possession of that vehicle. (De Mond v. Superior Court (1962) 57 Cal.2d 340, 344.)

Defendant contends that there was insufficient evidence to support a finding that she knew the car was stolen, and thus that she intended to deprive the owner of title to or possession of the car. Knowledge that the vehicle was stolen, while not an element of the offense, may constitute evidence of the defendants intent to deprive the owner of title and possession. (People v. ODell (2007) 153 Cal.App.4th 1569, 1574 (ODell).)  . . . Specific intent to deprive the owner of possession of his car may be inferred from all the facts and circumstances of the particular case. . . . (People v. Green (1995) 34 Cal.App.4th 165, 181 (Green).)

In a challenge to the sufficiency of the evidence to sustain a conviction, the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidencethat is, evidence which is reasonable, credible, and of solid valuesuch that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.  (People v. Windham (1987) 194 Cal.App.3d 1580, 1590 (Windham).) The incriminating evidence here satisfies this standard.

First, defendant was found in possession of the recently stolen car. Possession of recently stolen property itself raises a strong inference that the possessor knew the property was stolen; only slight corroboration is required to allow for a finding of guilt. (ODell, supra, 153 Cal.App.4th at p. 1574; see, e.g., Green, supra, 34 Cal.App.4th at p. 181 [defendant was driving car four days after it had been stolen].)

Second, defendant was using a Swiss Army knife, in lieu of a key, to turn the car on and off. As the prosecutor put it in closing argument, The car was running with no key in the ignition. Thats more than just a hint the car was stolen. Thats a huge clue. (See Green, supra, 34 Cal.App.4th at p. 181 [defendant was operating the car without an ignition key and by means of a screwdriver, which is a common method used by car thieves]; Windham, supra, 194 Cal.App.3d at p. 1590 [cars ignition had been jammed with a metal piece].)

Third, defendant tried to elude the officer after he spotted her, first by running a stop sign, and then by getting out of the car with the motor still running. (ODell, supra, 153 Cal.App.4th at p. 1577 [rational trier of fact could infer from defendants unprovoked flight that he knew truck was stolen].) Fourth, she lied to the officer about having keys to the car. Fifth, although she claimed to have purchased the car, she had no documentary proof of ownership, only a note that referred to a vehicle from a different model year, with a different license number and fewer doors.

The foregoing evidence provided ample support for an inference that defendant knew the car was stolen. Defendant observes that Vassalos testimony for her was unrebutted, but the jury was not obliged to believe him (ODell, supra, 153 Cal.App.4th at p. 1578 [jury could reasonably disbelieve testimony of defense witness who claimed to have stolen the truck]), and his testimony did not, in any event, explain why defendant was using a knife, rather than a key, to start the car because he said that she received keys to the car when she allegedly bought it.

B. CALCRIM No. 362

The jury was instructed in accordance with CALCRIM No. 362: If the defendant Adrienne Patterson made a false or misleading statement relating to the charged crime, knowing the statement was false or intending to mislead, that conduct may show she was aware of her guilt of the crime, and you may consider it in determining her guilt. [] If you conclude that the defendant made the statement, it is up to you to decide its meaning and importance. However, evidence that the defendant made such a statement cannot prove guilt by itself.

Defendant contends that there was no evidence to support this instruction, but, as we have said, there was evidence that defendant when confronted by Officer Pearman lied about having keys to the car: she said that she had the keys, and that the keys were in the car, but no keys were found in the car or on her person.

The claim of ineffective assistance of counsel likewise fails. Defendant submits that her counsel was incompetent for failing to object to the instruction, but there was no likelihood that an objection would have succeeded because the instruction was supported by the evidence. (People v. Fosselman (1983) 33 Cal.3d 572, 584 [different outcome must have been reasonably probable in absence of counsels failing].)

III. DISPOSITION

The judgment is affirmed.

______________________

Marchiano, P.J.

We concur:

______________________

Stein, J.

______________________

Swager, J.

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[1] Barto is apparently defendants married name.