P. v. Schiltz

Filed 5/1/07 P. v. Schiltz CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Janet I. Kintner, Judge. Affirmed in part and reversed in part.

A jury convicted appellant David Schiltz of receiving, withholding or concealing a stolen vehicle (Pen. Code,  496d),^[1]unlawfully driving a vehicle (Veh. Code,  10851, subd. (a)) and evading an officer with reckless driving (Veh. Code,  2800.2, subd. (a)).^[2] The trial court subsequently found true the allegations that Schiltz had suffered three prior prison terms ( 667.5, subd. (b)) and two prior strike convictions ( 667, subds. (b)-(i), 1170.12). Schiltz challenges the jury convictions based on alleged instructional errors. He also challenges the sentence, arguing his 1978 guilty plea to a robbery charge does not qualify as a prior strike conviction. Schiltz also asserts, and the People concede, People v. Trujillo (2006) 40 Cal.4th 165 mandates reversal of the true finding that his prior Nevada conviction qualified as a prior strike conviction. We agree and therefore reverse that true finding and order the issue remanded for retrial if the People so decide. (Id. at p. 174; Monge v. California (1998) 524 U.S. 721.)

I

FACTS

A. Prosecution Case

On January 6, 2004, Detective Winslow found a 2000 Chevrolet Silverado pickup truck (the truck), reported stolen in Las Vegas, parked across the street from a house where automobile thieves had been known to reside. The original license plates had been replaced with those registered to a Ford vehicle. Winslow staked out the truck and house. At approximately 6:00 p.m. Schiltz emerged from the house, got into the truck, and drove away.

Two marked police units moved in immediately behind the truck. Police followed the truck until it stopped at a stop light. While Schiltz was stopped at the light, Detective Murillo (driving an unmarked vehicle and in plainclothes) pulled up next to the truck on the driver's side and saw Schiltz. The officer in the marked police vehicle immediately behind Schiltz aimed his search light at the truck, activated the overhead light bar, and got out to perform a "hot stop." The officer unholstered his gun and began shouting orders to Schiltz. Schiltz looked in his rear view mirrors and then drove away. He turned right and went up and over a curb, through some bushes, across a gas station parking lot, and onto the intersecting street. Officers gave chase, with the lead car activating its siren. Schiltz did not yield, but ran several stop signs. At one intersection, several cars had to slow or stop to avoid collisions. The speed limit in the area was 25 miles per hour, but Schiltz was traveling between 30 and 55 miles per hour. After Schiltz turned onto Flamingo, his speed increased to between 50 and 60 miles per hour. Schiltz eventually stopped, abandoned the truck, and escaped. When Detective Winslow examined the truck, the ignition had not been tampered with and the windows were intact.^[3] A cup bearing Schiltz's fingerprints was found in the truck.

B. Defense Evidence

Schiltz testified he found work at a tow yard in 2003. Schiltz saved his employer's home and business from an approaching fire and the employer showed his gratitude by giving Schiltz a fully-contained 1985 motor home. In November 2003 Schiltz and Julie Kolasz drove the motor home to Las Vegas. Kolasz testified she met Schiltz in November 2003 and accompanied him to Las Vegas in a motor home. A few days later, he met "Richie" and spent the next approximately 10 days socializing with him. Richie was homeless but had the truck, which he wanted to sell, and Schiltz agreed to exchange the motor home for the truck.

The next day, Schiltz met Julie Cox. She asked him for a ride to her home in Arkansas. Schiltz met with Richie and gave him the keys and paperwork for the motor home but Richie was in the midst of an argument with two girlfriends and therefore could not immediately give Schiltz the paperwork for the truck. Schiltz agreed to wait and spent a few hours waiting before he told Richie that he was leaving to drive Julie Cox to Arkansas, and would collect the paperwork when he returned. Schiltz twice tried telephoning Richie while on the road, but did not reach him. Schiltz also spent a week unsuccessfully trying to find Richie after returning to Las Vegas from Arkansas. Schiltz then returned to San Diego. He later replaced the license plates on the truck because the license plates had expired. The new license plates were given to Schiltz by a friend, Mike, from a car that Mike owned but had been wrecked.

Schiltz had little recall of the events of January 6, 2004. He was feverish and nauseous, and was frightened that someone had tried to kill him by adulterating the drugs he had earlier used. To counteract the symptoms, he went to a house where he obtained and consumed a large amount of methamphetamine. When he left the house he felt high and sensed danger. He drove in a way to lose someone if they were following him, although he saw no one following him.

While at a signal light, he saw a man looking at him and making faces, and Schiltz thought it was an Egyptian government hit man sent to kill him to prevent him from talking about pyramids on Mars. Suddenly, he was blinded by a bright light and he drove away because he feared the agent was going to kill him.^[4] He did not know there were police behind him or in pursuit. When the truck started malfunctioning, he left it and ran away.

It was not unusual for Schiltz to own an unregistered truck because, when he was dealing drugs, he often traded drugs for vehicles, including vehicles that were not stolen. He did not think the truck was stolen.

Julie Cox met Schiltz on November 24, 2003, in Las Vegas. She was having difficulty returning to Arkansas and accepted his offer to drive her there. When she next saw him, he told her he had traded his motor home for the truck he was then driving. She helped Schiltz transfer his belongings from the motor home to the truck, and went with him to meet Richie to exchange the paperwork. However, Richie was involved in an argument with two women and Schiltz was unable to get Richie's attention. Schiltz gave Richie the paperwork and keys for the motor home but could not get the paperwork for the truck, and left with Cox. During the trip, Schiltz made numerous calls to Richie but was unable to locate him.

II

CHALLENGES TO JURY VERDICTS

A. The "Mistake" Instruction

Schiltz requested a special instruction stating that if he had a good faith belief that he had the right to the truck, even though it was a mistaken belief, that belief would be a defense to any theft offense even if Schiltz's belief was unreasonable.^[5]