Filed 4/25/17 P. v. Shah CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

SYED SHAH,

Defendant and Appellant.
H043097
(Santa Clara County
Super. Ct. No. C1491888)
Defendant Syed Shah was arrested after officers observed him driving a stolen vehicle. He proceeded to trial on one felony count of unlawfully driving or taking a vehicle without the owner’s consent in violation of Vehicle Code section 10851, subdivision (a), where he testified that he purchased the vehicle and was unaware it had been stolen. The jury convicted him. On appeal, defendant asserts instructional error, ineffective assistance of counsel, and cumulative error claims. We affirm.
I. BACKGROUND
A. Facts
Early on the morning of August 19, 2014, Miguel Avalos discovered that his green 2005 Chevrolet Silverado pickup truck was missing from the underground parking garage at his apartment complex. He had left the truck locked with a spare key inside. Avalos reported the theft to police.
A couple of days later, Avalos viewed surveillance video footage of the parking garage with the apartment complex’s property manager. According to Avalos, the video depicted his truck exiting the parking garage and a white Mustang following it. Avalos recalled that the time stamp on the video was approximately 11:45 p.m. on August 18th. Officers never viewed or obtained that video and it was not played at trial.
Manuel Nevarez, a California Highway Patrol detective and member of the Santa Clara County Regional Auto Theft Task Force, was on patrol in San Jose on August 19, 2014. He saw a parked green Chevy pickup truck, which he suspected had been stolen because the rear driver’s side window was missing and he had recovered other stolen vehicles in the area. A records check of the license plate confirmed his suspicion. Nevarez conducted surveillance on the vehicle. On August 20th, he observed defendant get into the vehicle and drive away. Nevarez followed as defendant stopped briefly at two gas stations before parking at a third. When defendant exited the vehicle at the third gas station, officers took him into custody with guns drawn.
According to Nevarez, defendant volunteered that he had purchased the truck and had a bill of sale in the vehicle before being informed of the reason for his detention. Nevarez searched the vehicle but found no bill of sale.
After being Mirandized , defendant explained to Nevarez that he had purchased the vehicle from a man named Rodrigo at approximately 7:00 p.m. on August 18th. Defendant said he was at the gas station to get a tire fixed.
Nevarez and defendant returned to defendant’s home. Nevarez searched defendant’s residence and found no bill of sale there either. At defendant’s instruction, a woman at the home (defendant’s business manager) gave Nevarez a citation, which defendant said had been issued to the man who sold him the truck. The citation was issued to Arturo Maia. Nevarez was able to confirm the validity of the citation and the existence of a man named Arturo Maia, but was unable to locate him. Nevarez noted that the truck had been parked a few doors down from defendant’s home, and stated that in his experience people do not park stolen vehicles directly in front of their homes.
Defendant, a 53-year-old pastor at an Islamic center, testified in his own defense. He stated that in August 2014 he was in the market for a truck for the Islamic center. Arturo Maia, a handyman who was painting the interior of defendant’s house, said he had a truck to sell and that he would bring it to show defendant sometime. Late on the night of August 18, 2014, Maia came to defendant’s house. He was driving a white Mustang and a woman accompanying him was driving the green Chevrolet pickup truck. Maia offered to sell the truck to defendant. Defendant took the truck on a test drive around the block. Maia showed defendant the truck’s registration and a bill of sale from the registered owner, Avalos, to Maia. Defendant asked Maia for identification; he did not have any and gave defendant a citation with his name on it instead.
Defendant agreed to purchase the truck for $5,900, but he wanted to have a mechanic look at the transmission before paying full price. Maia executed a bill of sale to defendant’s Islamic center. Maia kept the original bills of sale, of which defendant made copies. Defendant gave Maia a $300 deposit and the two agreed that if a mechanic determined the vehicle was in good condition, defendant would pay the remaining balance of the purchase price and Maia would deliver the original bills of sale. Copies of the two bills of sale—from Avalos to Maia and from Maia to defendant’s Islamic center—were admitted into evidence at trial.
Defendant testified that on August 20th he intended to have his mechanic examine the truck and fix a tire for another of his vehicles. He drove to the gas station where his mechanic works to find his mechanic had the day off. He drove to two other gas stations looking for an available mechanic. When police apprehended him, defendant asked the officer who handcuffed him what was going on; the officer responded that it was about a stolen vehicle. According to defendant, he told Nevarez he had a bill of sale, but did not say it was in the vehicle. Defendant further explained that he told Nevarez the seller’s name was Rodrigo because Maia’s name was difficult to pronounce and Rodrigo just “came from [his] mouth.” Defendant denied telling Nevarez that the transaction with Maia occurred at 7:00 p.m.; it occurred later at night. At no time did defendant notice that the truck’s rear driver’s side window was missing.
Avalos never gave defendant or Maia permission to drive his truck and never sold the vehicle. When the vehicle was returned to Avalos, the rear driver’s side window had been removed.
B. Procedural History
The Santa Clara County District Attorney charged defendant with unlawfully driving or taking a vehicle without the owner’s consent (Veh. Code, § 10851, subd. (a)) in an information filed on April 2, 2015.
The case proceeded to a jury trial in July 2015 and the jury convicted defendant on July 29, 2015. At a November 20, 2015 sentencing hearing, the trial court suspended imposition of sentence and placed defendant on three years of formal probation subject to various conditions, including that he serve one year in jail.
Defendant timely appealed.
II. DISCUSSION
A. Failure to Sua Sponte Instruct Regarding Mistake of Fact
Defendant maintains the trial court erroneously failed to sua sponte instruct the jury with CALCRIM No. 3406 regarding mistake of fact. The People disagree, as do we.
1. Legal Principles
Trial courts have a limited duty to instruct, sua sponte, on particular defenses. (People v. Barton (1995) 12 Cal.4th 186, 195.) That duty arises “ ‘only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of the case.’ ” (Ibid.) “ ‘Substantial evidence’ in this specific context is defined as evidence which is ‘sufficient to “deserve consideration by the jury, i.e., ‘evidence from which a jury composed of reasonable men could have concluded’ ” that the particular facts underlying the instruction did exist.’ ” (People v. Burnham (1986) 176 Cal.App.3d 1134, 1139.) “ ‘ “Doubts as to the sufficiency of the evidence to warrant instructions should be resolved in favor of the [defendant].” ’ ” (People v. Tufunga (1999) 21 Cal.4th 935, 944.)
Mistake of fact is a defense where the mistake disproves an element of the offense, such as intent. (In re Jennings (2004) 34 Cal.4th 254, 277; Pen. Code, § 26 [when a person “commit[s] the act . . . charged under an ignorance or mistake of fact, which disproves any criminal intent,” he or she does not commit a crime].) “[F]or ‘general intent crimes’ the mistaken belief must be ‘both actual and reasonable,’ while specific intent crimes or crimes involving knowledge require only an actual mistaken belief.” (People v. Givan (2015) 233 Cal.App.4th 335, 343.) CALCRIM No. 3406 advises the jury that a defendant is not guilty of a charged crime if he or she did not have the requisite intent or mental state because of a mistake of fact. It further provides: “If the defendant’s conduct would have been lawful under the facts as (he/she) [reasonably] believed them to be, (he/she) did not commit” the charged crime. (CALCRIM No. 3406.)
“To establish a defendant’s guilt of violating Vehicle Code section 10851, subdivision (a), the prosecution is required to prove that the defendant drove or took a vehicle belonging to another person, without the owner’s consent, and that the defendant had the specific intent to permanently or temporarily deprive the owner of title or possession.” (People v. O’Dell (2007) 153 Cal.App.4th 1569, 1574 (O’Dell).) Thus, “nonconsent of the owner is a necessary element of the crime of the unlawful taking or driving of a vehicle” (People v. Lam (2004) 122 Cal.App.4th 1297, 1301), as is intent to deprive the owner of title or possession.
2. Analysis
Defendant testified to the mistaken belief that Maia owned the truck, having purchased it from the registered owner, Avalos. Defendant further testified that Maia gave him permission to drive the truck to have a mechanic inspect it. In defendant’s view, his mistake of fact—that Maia owned the vehicle—negates two elements of the crime: nonconsent and intent. The People respond that there is no sua sponte duty to instruct on defenses that negate an element of a crime.
We disagree with defendant’s apparent view that his mistake of fact negates the first element of the offense of unauthorized taking or driving: namely, taking or driving a vehicle without the owner’s consent. It was undisputed at trial that defendant drove the pickup truck, that Avalos owned the pickup truck, and that Avalos did not consent to defendant driving the pickup truck. Defendant’s mistaken belief that Maia was the owner and had granted consent was relevant only to the crime’s second element—intent to permanently or temporarily deprive the owner of title or possession.
Because defendant’s mistaken belief served only to rebut prosecution evidence of intent to deprive the owner of possession or title, the trial court had no sua sponte duty to instruct on mistake of fact. Our Supreme Court has stated that “ ‘ “when a defendant presents evidence to attempt to negate or rebut the prosecution’s proof of an element of the offense, a defendant is not presenting a special defense invoking sua sponte instructional duties.” ’ ” (People v. Anderson (2011) 51 Cal.4th 989, 996-997; see People v. Covarrubias (2016) 1 Cal.5th 838, 874, fn. 14 [“the trial court’s sua sponte instructional duties do not extend to defenses that serve only to negate an element of the crime”]; People v. Saille (1991) 54 Cal.3d 1103, 1120 [where “the defendant is attempting to relate his evidence of intoxication to an element of the crime . . . , he may seek a ‘pinpoint’ instruction” but there is no sua sponte duty of instruction]; People v. Lawson (2013) 215 Cal.App.4th 108, 118 [no sua sponte duty to instruct on the defense of mistake of fact that “would have served only to negate the mental state element of the crime”].)
B. Instruction with CALCRIM No. 376
Over defense counsel’s objection, the trial court instructed the jury with CALCRIM No. 376 as follows: “If you conclude that the defendant knew he possessed property and you conclude that the property had in fact been recently stolen, you may not convict the defendant of unlawfully taking or driving a vehicle based on those facts alone. However, if you also find that supporting evidence tends to prove his guilt, then you may conclude that the evidence is sufficient to prove he committed unlawfully taking or driving a vehicle. [¶] The supporting evidence need only be slight and need not be enough by itself to prove guilt. You may consider how, where, and when the defendant possessed the property, along with any other relevant circumstances tending to prove his guilt of unlawfully taking or driving a vehicle. [¶] Remember that you may not convict the defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt.”
Defendant argues CALCRIM No. 376—specifically, the reference to “slight” supporting evidence—lowered the prosecutor’s burden of proof in violation of his Fourteenth Amendment due process rights. “We review de novo whether a jury instruction correctly states the law. [Citation.] Our task is to determine whether the trial court ‘ “fully and fairly instructed on the applicable law.” [Citation.]’ ” (People v. Lopez (2011) 198 Cal.App.4th 698, 708 (Lopez).)
As defendant acknowledges, this court rejected an identical argument in Lopez, reasoning that “CALCRIM No. 376 makes it quite apparent that the ‘slight’ supporting evidence is not to be considered in isolation, but together with all of the other evidence for purposes of determining whether there is proof beyond a reasonable doubt that the defendant committed [the offense]. [Citation.] The instruction expressly requires the jury to be ‘convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt.’ (CALCRIM No. 376.) Thus, CALCRIM No. 376 does nothing to diminish the prosecution’s burden of proof. [Citation.]” (Lopez, supra, 198 Cal.App.4th at p. 711.)
Defendant says Lopez is distinguishable to the extent the key question in this case was not whether defendant stole the truck but whether he drove it with the requisite intent. According to defendant, while the fact that a vehicle recently was stolen may give rise to an inference that the person in possession stole it, the same fact does not support an inference that the person in possession (if not the thief) knew it was stolen. (While “[k]nowledge that the vehicle was stolen . . . [is] not an element of the offense, [it] may constitute evidence of the defendant’s intent to deprive the owner of title and possession.” (O’Dell, supra, 153 Cal.App.4th at p. 1574.)) We agree with the court in O’Dell that, in fact, “[p]ossession of recently stolen property itself raises a strong inference that the possessor knew the property was stolen.” (Ibid.)
United States v. Gray (5th Cir. 1980) 626 F.2d 494, on which defendant relies, does not persuade us that CALCRIM No. 376 lowers the reasonable doubt standard. As this court concluded in Lopez, Gray is distinguishable because it “dealt with a conspiracy instruction tied to the substantive element of a conspiracy charge.” (Lopez, supra, 198 Cal.App.4th at p. 712.)
In sum, CALCRIM No. 376 properly states the law and does not lower the prosecution’s burden of proof. Accordingly, the court did not err by instructing the jury with it.
C. Ineffective Assistance of Counsel
1. Legal Principles
“Under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, a criminal defendant has the right to the assistance of counsel.” (People v. Ledesma (1987) 43 Cal.3d 171, 215.) To prevail on a claim of ineffective assistance of counsel, a criminal defendant must establish both that his counsel’s performance was deficient and that he suffered prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) The deficient performance component of an ineffective assistance of counsel claim requires a showing that “counsel’s representation fell below an objective standard of reasonableness” “under prevailing professional norms.” (Id. at p. 688.) A court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. (Id. at p. 689.) “Tactical errors are generally not deemed reversible; and counsel’s decisionmaking must be evaluated in the context of the available facts.” (People v. Hart (1999) 20 Cal.4th 546, 623.) To the extent the record on appeal fails to disclose why counsel acted or failed to act in the manner challenged, we will affirm the judgment unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.)
With respect to prejudice, a defendant must show “there is a reasonable probability”—meaning “a probability sufficient to undermine confidence in the outcome”—“that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Strickland, supra, 466 U.S. at p. 694.) We “need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed.” (Id. at p. 697.)
2. Failure to Request That the Jury be Instructed Regarding Mistake of Fact and Claim of Right
Defendant contends trial counsel was ineffective in failing to request that the jury be instructed with CALCRIM No. 3406, the mistake of fact instruction addressed above. Defendant says counsel likewise was ineffective in failing to request that the jury be instructed on claim of right with CALCRIM No. 1863. That instruction provides: “If the defendant obtained property under a claim of right, (he/she) did not have the intent required for the crime of (theft/ [or] robbery). [¶] The defendant obtained property under a claim of right if (he/she) believed in good faith that (he/she) had a right to the specific property or a specific amount of money, and (he/she) openly took it. [¶] In deciding whether the defendant believed that (he/she) had a right to the property and whether (he/she) held that belief in good faith, consider all the facts known to (him/her) at the time (he/she) obtained the property, along with all the other evidence in the case. The defendant may hold a belief in good faith even if the belief is mistaken or unreasonable. But if the defendant was aware of facts that made that belief completely unreasonable, you may conclude that the belief was not held in good faith.” Both CALCRIM No. 3406 and CALCRIM No. 1863 relate to the specific intent requirement of unauthorized driving or taking of a vehicle and defendant’s testimony that he believed Maia owned the truck and gave him permission to drive it.
The People contend defendant was not entitled to have the jury instructed on claim of right because Vehicle Code section 10851 does not necessarily involve theft (People v. Garza (2005) 35 Cal.4th 866, 871 [“a conviction under section 10851(a) for posttheft driving is not a theft conviction”]), and claim of right is only a defense to theft and robbery. The People further argue that defense counsel was not ineffective because instructions that were given adequately informed jurors of the crime’s intent element.
The jury was instructed with CALCRIM No. 251 that “[t]he crime charged in this case requires proof of the union, or joint operation, of act and wrongful intent.” (Italics added.) And the jury was instructed with CALCRIM No. 1820 that “[t]o prove that the defendant is guilty . . . , the People must prove that: [¶] 1. The defendant took or drove someone else’s vehicle without the owner’s consent; [¶] AND [¶] 2. When the defendant did so, he intended to deprive the owner of possession or ownership of the vehicle for any period of time.” In view of those instructions regarding the intent requirement, it was reasonable for trial counsel not to request mistake-of-fact or claim-of-right instructions, which merely elaborated on the wrongful intent requirement.
Even if defendant could satisfy the deficient performance prong, he has failed to show prejudice. As noted above, the jury was instructed properly regarding the intent requirement and that defendant needed “wrongful” intent. The prosecutor’s theory was that defendant either stole the vehicle himself or knew it was stolen. She never argued that defendant could be convicted even if jurors believed his testimony that he mistakenly believed Maia was the vehicle’s owner. To the contrary, she sought, in her closing argument, to discredit defendant and debunk his version of events. Defense counsel argued in closing that defendant was not guilty because there was no evidence he personally stole the truck and the prosecutor failed to prove defendant “drove it with unlawful intent.” Defense counsel went on to argue the sale appeared legitimate to defendant because, for example, Maia provided a key to the vehicle. Thus, the closing arguments indicated to jurors that defendant was not guilty if his testimony was believed. In view of the instructions as a whole and the closing arguments, it is not reasonably probable that defendant would have realized a more favorable result had jurors been instructed with CALCRIM No. 3406 and/or CALCRIM No. 1820.
We find People v. Hussain (2014) 231 Cal.App.4th 261, on which defendant relies, to be distinguishable with regard to prejudice. There, the court concluded defense counsel was ineffective in failing to request that the jury be instructed on claim of right and found the deficient performance to be prejudicial because “[t]he jury struggled with the element of intent . . . , asking specifically how specific intent related to the elements of grand theft” and because it acquitted defendant on every other charge, indicating they “did not reject defendant’s testimony entirely.” (Id. at pp. 271-272.) By contrast, here, there is no reason to believe the jury had difficulty understanding the intent requirement or credited any of defendant’s testimony.
3. Failure to Object to Alleged Instances of Prosecutorial Misconduct
Defendant claims trial counsel also was ineffective because she failed to object to two instances of alleged prosecutorial misconduct. We agree that there was one instance of misconduct during closing argument; however, defendant’s claim nevertheless fails because tactical reasons existed for not objecting.
“ ‘The applicable federal and state standards regarding prosecutorial misconduct are well established. “ ‘A prosecutor’s . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct “so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.” ’ ” [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves “ ‘ “the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.” ’ ” [Citation.]’ ” (People v. Hill (1998) 17 Cal.4th 800, 819 (Hill).)
a. Extrarecord Evidence
Defendant contends the prosecutor committed misconduct by referring to facts not in evidence during her rebuttal closing argument. Referring to facts not in evidence is “ ‘clearly . . . misconduct’ [citation], because such statements ‘tend[ ] to make the prosecutor his own witness—offering unsworn testimony not subject to cross examination.’ . . . ‘Statements of supposed facts not in evidence . . . are a highly prejudicial form of misconduct, and a frequent basis for reversal.’ ” (Hill, supra, 17 Cal.4th at p. 828.)
Defendant testified he needed a bill of sale evidencing his purchase of the vehicle in order to register it in his name with the DMV. On cross-examination, the prosecutor asked defendant whether he was “aware that DMV’s website says that you, as a buyer, don’t need a bill of sale to register the car . . .?” Defendant responded “[n]o” and reiterated his understanding that “[i]t’s required the bill of sale as a buyer when you go to transfer the car on your name.” The prosecutor repeated the question: “Are you aware the website says that although the DMV provides a bill of sale form, it doesn’t require the buyer to present one for registration?” Defendant responded: “No, I don’t know that.” In her rebuttal closing argument, the prosecutor asserted that, contrary to defendant’s testimony, the DMV’s website indicates a bill of sale is not required to register a vehicle. She then asserted “everything [defendant] said doesn’t make sense. His story is ridiculous.”
On appeal, defendant argues it was misconduct for the prosecutor to reference the content of the DMV’s website, which was not in evidence. The People counter that the prosecutor merely was commenting on defendant’s testimony. We agree with defendant’s characterization of the prosecutor’s argument. She made a factual assertion about the content of the DMV’s website despite the absence of any supporting evidence; that constituted misconduct. (Hill, supra, 17 Cal.4th at pp. 823, 828.)
The record does not disclose why counsel failed to object. Accordingly, to establish deficient performance, “defendant must show that there was ‘ “ ‘no conceivable tactical purpose’ ” for [the] . . . omission. [Citations.]’ ” (People v. Centeno (2014) 60 Cal.4th 659, 675; see People v. Lewis (2001) 25 Cal.4th 610, 674-675.) This requirement “is particularly apt when the asserted deficiency arises from defense counsel’s failure to object. ‘[D]eciding whether to object is inherently tactical, and the failure to object will rarely establish ineffective assistance.’ [Citations.]” (People v. Salcido (2008) 44 Cal.4th 93, 172.)
We can conceive of two tactical purposes for counsel’s failure to object to the prosecutor’s improper reference to facts not in evidence. First, defense counsel may have refrained from objecting to avoid highlighting the prosecutor’s remark. (See People v. Wharton (1991) 53 Cal.3d 522, 567.) Second, defense counsel may have concluded objection was unnecessary because the court’s instructions would be sufficient to avoid any harm. Here, jurors were instructed to acquit defendant “[u]nless the evidence proves [him] guilty beyond a reasonable doubt” (CALCRIM No. 220) and that “[n]othing that the attorneys say is evidence” (CALCRIM No. 222). Because this case does not present one of “those rare instances where there is no conceivable tactical purpose for counsel’s actions” (People v. Lopez (2008) 42 Cal.4th 960, 972), defendant’s ineffective assistance of counsel claim would be “more appropriately litigated on habeas corpus, which allows for an evidentiary hearing where the reasons for defense counsel’s actions or omissions can be explored.” (Id. at p. 966.)
b. Misstatement of the Law
Defendant argues the prosecutor also committed misconduct by misstating the law in her closing argument when she said defendant was guilty even if he “simply turned a blind eye to a shady sale.” (Hill, supra, 17 Cal.4th at pp. 829-830 [“ ‘[I]t is improper for the prosecutor to misstate the law . . . .’ ”].) According to defendant, that statement suggested the jury could convict even if it concluded defendant lacked the requisite intent to deprive the owner of possession or title. We disagree. We understand the prosecutor’s argument to be that defendant may have known the truck was stolen (hence the “shady” nature of the sale), but ignored that fact (“turned a blind eye”). In that case, he had the required specific intent.
D. Cumulative Error
Defendant contends the cumulative effect of the alleged errors was to deprive him of his right to due process. “Under the cumulative error doctrine, the reviewing court must ‘review each allegation and assess the cumulative effect of any errors to see if it is reasonably probable the jury would have reached a result more favorable to defendant in their absence.’ ” (People v. Williams (2009) 170 Cal.App.4th 587, 646.) “The ‘litmus test’ for cumulative error ‘is whether defendant received due process and a fair trial.’ ” (People v. Cuccia (2002) 97 Cal.App.4th 785, 795.) Because we have found no errors, the cumulative error doctrine has no application.
III. DISPOSITION
The judgment of conviction is affirmed.




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ELIA, ACTING P.J.

WE CONCUR:



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BAMATTRE-MANOUKIAN, J.



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MIHARA, J.