Filed 4/4/22 P. v. Sloan CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Katrina West, Judge. Affirmed.

Paul Strubb, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Melissa Mandel, Acting Assistant Attorney General, Arlene A. Sevidal and Juliet W. Park, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

A jury found defendant and appellant Thomas Sloan guilty of one count of taking or driving a vehicle without the owner’s consent. (Veh. Code,[1] § 10851, count 1.) In a bifurcated proceeding, a trial court found true that defendant had a prior strike conviction for robbery. (Pen. Code, §§ 1170.12, subds. (a) - (d), 667, subds. (b) - (i).) The court sentenced him to 32 months in state prison.

On appeal, defendant contends the evidence was insufficient to support his conviction in count 1. We disagree and affirm.

FACTUAL BACKGROUND

Prosecution Evidence

On August 16, 2020, J.P. borrowed a car from his coach and friend, B.M. (the owner), to drive to the gym where he trained. The owner gave J.P. the keys to his black sedan (the car). The owner did not give anyone else permission to use his car that day. J.P. drove to the gym and arrived at around 3:00 p.m. He got out of the car and went in the backseat and trunk to get some things. He left his shin guards in the car. J.P. was in a rush to get inside the gym and accidentally left the keys either on top of the car or inside of it.

J.P. and the owner left the gym at around 7:00 p.m. The owner locked up the gym, and when they stepped outside, they noticed the car was missing. The owner asked J.P. where he parked the car, and J.P. said he parked it right in front of the gym. They looked around the entire parking lot but could not find the car. During the four hours J.P. was at the gym, neither he nor the owner let anyone else borrow the car. The owner called the police to report the car stolen.

An officer responded to the call and gathered information about the car from the owner and J.P. He then conducted an area check at nearby businesses to see if perhaps anybody witnessed the theft but did not find anyone. The officer drove around the immediate area to look for the car. At around 12:30 a.m., he located the car at an apartment complex, approximately one-half mile away from the gym. Defendant was driving the car, with two passengers. The officer got behind the car and initiated a traffic stop. He searched the car and found J.P.’s shin guards. He did not find anything to indicate the car was not stolen, such as a pink slip, bill of sale, or vehicle registration. The officer contacted the owner, who came and confirmed the car belonged to him. At trial, the officer opined that, based on his background, training, and experience, as well as the totality of his investigation, the car was stolen.

The owner testified at trial that the car was a 2012 model he bought in 2018 for $4,500 to $5,000.

Defense Evidence

Defendant testified on his own behalf. He testified that he bought the car from his friend on August 16, 2020, at around 10:30 p.m. He said he was 21 years old, and this was his first time purchasing a car. Defendant testified that earlier that day at around 4:00 p.m., he was waiting in his girlfriend’s car while she was at work when his friend Miguel approached him. Defendant went with Miguel to an apartment complex to smoke some weed, and while they were smoking, defendant said he and his girlfriend were supposed to meet a friend about buying a run-down car for $300. Miguel said he knew someone who was selling a better car, and that he could get it for the same price. Miguel contacted his friend Brian on social media and arranged to meet up with him 30 minutes later. Defendant and Miguel hopped the wall at the apartment complex and went to a park to meet Brian.

Brian was already there waiting for them. When they arrived, defendant recognized Brian. Nonetheless, Miguel acted as the middleman and went up and talked with Brian. Miguel retrieved and gave the keys to defendant, and defendant gave him $300 to give to Brian. Brian then approached defendant and said he needed $500 more. Brian said he trusted defendant since they had known each other since they were 12 years old. They agreed to meet up again the next day, after Brian got off of work, so defendant could pay the $500. At trial, when asked if he intended to get a receipt for the car, defendant said they were going to meet the next day so he could pay the rest of the money, and they would “write it all out” and “transfer it over.” Defendant later clarified that Brian did not own the car but was still making payments on it, and they were going to “go and transfer it over to the DMV.”

On cross-examination, defendant said that when he and Miguel initially met with Brian to buy the car, he did not check to see how many miles the car had, check to see if the radio worked, or drive the car first. When asked when they were going to meet the next day, defendant said Miguel was supposed to arrange the meeting. When asked what time they were going to go to the DMV, defendant said he assumed Brian was “going to do all that.” When asked again what time he was supposed to give the rest of the car payment, defendant said “the next day,” “whenever I got down there and met up with Miguel.”

Defendant also testified that he had previously pled guilty to two prior felony convictions, for criminal threats and a theft offense.

At the close of evidence, the defense moved for a judgment of acquittal under Penal Code section 1118.1, based on insufficiency of the evidence. The court denied the motion stating, “It’s a credibility issue and that’s a matter for the jury to decide.”

DISCUSSION

The Evidence Was Sufficient to Support Defendant’s Conviction

Defendant contends there was insufficient evidence to support his conviction of driving or taking a vehicle without the owner’s consent. He asserts there was no evidence that he took the car, or that he intended to deprive the owner of the car since he believed he was the owner. Defendant argues the evidence was insufficient to support a conviction under either the taking or driving theory. We conclude the evidence was sufficient to support his conviction.

A. Standard of Review

“When reviewing the sufficiency of evidence to support a criminal conviction, we ask whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citation.] We view the whole record in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence to determine whether the record discloses substantial evidence.” (People v. Kwok (1998) 63 Cal.App.4th 1236, 1245 (Kwok).) “[T]his court may not redetermine the credibility of witnesses, nor reweigh any of the evidence, and must draw all reasonable inferences, and resolve all conflicts, in favor of the judgment. [Citation.]” (People v. Poe (1999) 74 Cal.App.4th 826, 830 (Poe).)

“ ‘Before a judgment of conviction can be set aside for insufficiency of the evidence to support the trier of fact’s verdict, it must clearly appear that upon no hypothesis whatever is there sufficient evidence to support it.’ ” (Kwok, supra, 63 Cal.App.4th at p. 1245.)

“Because intent is rarely susceptible of direct proof, it may be inferred from all the facts and circumstances disclosed by the evidence.” (Kwok, supra, 63 Cal.App.4th at p. 1245.) Furthermore, “ ‘[c]ircumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt.’ ” (People v. Green (1995) 34 Cal.App.4th 165, 180 (Green).)

B. The Evidence Was Sufficient to Support Defendant’s Conviction Under the Taking Theory

“ ‘The elements necessary to establish a violation of section 10851 of the Vehicle Code are the defendant’s driving or taking of a vehicle belonging to another person, without the owner’s consent, and with specific intent to permanently or temporarily deprive the owner of title or possession. [Citations].’ ” (Green, supra, 34 Cal.App.4th at p. 180; see § 10851, subd. (a).) “Accordingly, knowledge that the vehicle was stolen is not an element of the offense. Such knowledge is merely one of various alternative factors evidencing an intent to deprive the owner of title and possession.” (Green, at p. 180.) “By its terms, the statute can be violated in two ways—by taking the vehicle (theft) or by driving the stolen vehicle after the theft is complete (posttheft driving).” (People v. Calistro (2017) 12 Cal.App.5th 387, 394-395.) “Mere possession of a stolen car under suspicious circumstances is sufficient to sustain a conviction of unlawful taking.” (People v. Clifton (1985) 171 Cal.App.3d 195, 199 (Clifton); see People v. Ford (1965) 234 Cal.App.2d 480, 495-496 (Ford) [“ ‘Where recently stolen property is found in the conscious possession of a defendant who, upon being questioned by the police, gives a false explanation regarding his possession or remains silent under circumstances indicating a consciousness of guilt, an inference of guilt is permissible and it is for the jury to determine whether or not the inference should be drawn in the light of all the evidence.’ ”].)

Defendant first argues that, based on the jury instructions, the prosecutor’s argument, and the verdict form, the jury must have convicted him under the taking theory of liability under section 10851.[2] He contends the evidence was insufficient to find him guilty of taking the car. However, J.P. testified that he accidentally left the keys either on top of the car or inside of it, and both he and the owner testified they did not give anyone else permission to drive the car. The evidence established that the car was stolen from the front of the gym and was located a few hours later, just one-half mile away, with defendant driving it. Thus, although there was no direct evidence that defendant took the car, there was ample circumstantial evidence for the jury to infer he did since he was found in possession of the stolen car. (See Ford, supra, 234 Cal.App.2d at pp. 495-496.)

Furthermore, defendant possessed the stolen car under suspicious circumstances. “Possession of recently stolen property is so incriminating that to warrant a conviction of unlawful taking there need only be, in addition to possession, slight corroboration in the form of statements or conduct of the defendant tending to show his guilt.” (Clifton, supra, 171 Cal.App.3d at pp. 199-200.) Defendant claimed he purchased the car from an old friend, through a middleman (Miguel) who happened to approach him in a parking lot and just happened to know someone selling a car. Defendant told Miguel he had $300 to buy a car, and Miguel said he could get a good car for that price. They met up with Brian thereafter, and Brian just happened to be defendant’s childhood friend. When Brian said he needed $500 more, defendant readily agreed, even though the total price was more than twice as much money as he said he had to spend. Further, as respondent points out, according to defendant’s story, defendant was paying $800 for a car that was just sold two years prior for $4,500 to $5,000. We also note that defendant testified he did not test drive the car first or check the mileage on it. He simply paid $300 and did not get a receipt for his money or any proof of purchase indicating he would own the car. Moreover, when the police located defendant with the car, there was no pink slip (title) or vehicle registration inside the car. Given defendant’s suspicious explanation regarding his possession of the stolen car, the jury could infer that he unlawfully took the car. (See Ford, supra, 234 Cal.App.2d at pp. 495-496; Clifton, supra, 171 Cal.App.3d at p. 199.)

Defendant contends there was “paltry evidence” he intended to deprive the owner of possession of the car; instead, the evidence supported a finding that he believed he was the owner. He points to his own testimony that he bought the car from a long-time friend, he believed he was getting a good deal because the seller was his friend, and there was nothing to alert a young, first-time buyer that the car was stolen. However, the jury apparently did not believe defendant’s story since it found him guilty, and we cannot redetermine his credibility. (Poe, supra, 74 Cal.App.4th at p. 830.)

Viewing the whole record in the light most favorable to the prosecution, as we must, we conclude the evidence was sufficient to support defendant’s conviction. (Kwok, supra, 63 Cal.App.4th at p. 1245.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS

Acting P. J.

We concur:

RAPHAEL

J.

MENETREZ

J.

[1] All further statutory references will be to the Vehicle Code unless otherwise noted.

[2] We note the court only instructed the jury under the taking theory of section 10851.