P. v. Torres

Filed 10/12/06 P. v. Torres CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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The Toyota Camry ranks among the top five cars favored by Sacramento car thieves. Police pulled over defendant George Mario Torres, driving a stolen 1991 silver Toyota Camry. Defendant claimed he purchased the car for $200. A jury found defendant guilty of taking and driving a vehicle without the owner’s consent, and buying or receiving a motor vehicle that was stolen property with knowledge it was stolen. (Veh. Code, § 10851, subd. (a); Pen. Code, § 496d, subd. (a).)^[1] Defendant brought a motion for a new trial, arguing no evidence presented at trial showed he knew the car was stolen. The trial court granted the motion. The People appeal, arguing the court abused its discretion by failing to accord proper deference to the jury’s verdicts. We disagree and shall affirm the order granting a new trial.

FACTUAL AND PROCEDURAL BACKGROUND

An information charged defendant with taking and driving a vehicle without the owner’s consent, and with buying and receiving a vehicle that was stolen property with knowledge that it was stolen. (Veh. Code, § 10851, subd. (a); Pen. Code, § 496d, subd. (a).) The information also alleged one serious prior felony conviction of a 1996 robbery, and one previous conviction of a violation of Vehicle Code section 10851. (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, 666.5, subd. (a).)

A jury trial followed. Lori Ann Bachand testified that on May 2, 2004, she owned a 1991 four-door silver Toyota Camry. She parked the car in her driveway with the doors locked. Only Bachand and her husband had keys to the car. On the morning of May 3, 2004, the car vanished. Bachand reported the theft to the sheriff and the California Highway Patrol.

Six days later, Bachand received a call from police notifying her that the Toyota had been located. She met police officers at the scene. Bachand took her own car key; the police did not give her any keys. After inspecting the vehicle, Bachand discovered that documents she kept in the glove compartment, her proof of registration and insurance coverage, were gone.

Further inspection revealed tool marks on the driver’s door in the form of chipped paint. Bachand believed these were pry marks, although she testified there was no actual prying or bending of the door. It appeared to Bachand that the thief had entered the car by lifting up the plastic “divoted” door lock piece on the door’s interior. Bachand did not believe the ignition had been tampered with.

Bachand testified the Kelly Blue Book value of the Toyota was between $2,100 and $2,500. After she recovered the car, Bachand received an estimate of $2,100 to repair the damaged bumper, hood, and headlight.

Sacramento Police Officer Eric Ave-Lallemont, accompanied by his partner Nick Echeverria, was on patrol on the evening of May 9, 2004. As the duo drove through a residential neighborhood traveling eastbound, they noticed a Toyota Camry stopped on a cross-street facing south. Echeverria motioned for the car to go ahead and make a turn. Instead, the car remained stopped at the intersection, which had neither stop sign nor signal light. Echeverria motioned a second time, and after a brief hesitation, the car turned left and proceeded eastbound just ahead of the patrol car. The officers followed.

The driver’s behavior aroused Ave-Lallemont’s suspicions, particularly because the Toyota Camry is one of the top five stolen vehicles in Sacramento. The officers were patrolling a high crime neighborhood, heightening their suspicions about the hesitant Toyota.

After the Toyota turned in front of them, Ave-Lallemont ran the license plate numbers through the patrol car’s computer and discovered the Toyota had been stolen.

The officers followed the Toyota and turned on their emergency lights and siren, making a felony stop of the car. The driver, defendant, immediately complied with their signals. The officers approached the Toyota, and Ave-Lallemont ordered defendant to turn off the car, throw out the keys, and keep his hands visible.

Defendant threw the keys out the car window. While Ave-Lallemont saw defendant toss the keys, he could not recall what subsequently happened to them. Ave-Lallemont believed he let Bachand take them, but he could not remember whether Bachand arrived at the scene with her own set of keys.

Officers are trained to examine keys found in stolen cars to look for a “shaved key.” A shaved key is a regular key that has had the ridges filed off to enable it to open the doors and operate the ignitions of other cars of the same make and model. A “worn key” has the ridges worn down but not completely shaved off, again to operate other cars of the same model. Ave-Lallemont testified he “mistakenly did not look for a shaved key or for a worn key” when defendant was stopped.

Ave-Lallemont’s training on investigating stolen vehicles alerted him as to what to look for when examining a stolen car. However, in examining the Toyota, Ave-Lallemont testified there “wasn’t any damage typically associated with a stolen vehicle.” The steering column and dashboard remained undamaged, and the ignition was intact. Ave-Lallemont noticed no damage to the door.^[2] Although the front bumper and headlight were damaged, there were no broken windows.

Ave-Lallemont attempted to advise defendant of his constitutional rights, but defendant interrupted, preventing the admonition. Defendant volunteered that “he had just bought the car. That he was screwed. He was trying to cooperate, but he is arrested.” At least thrice defendant told the officers he had purchased the Toyota for $200.

Echeverria testified and corroborated Ave-Lallemont’s version of events. Echeverria did not recall whether any officer retrieved the keys defendant threw out the window. Echeverria stated he never handled any keys that night.

The prosecution called 18-year-old Iskra Gaitan, defendant’s girlfriend, as a hostile witness. A student, Gaitan works part time as a notary public for her father. She lives at home with her parents, who disapprove of her relationship with defendant.^[3]

According to Gaitan, defendant, who lived with his grandmother, did not have a car. Defendant was employed at a warehouse and got rides from friends and relatives to and from work.

Gaitan bought the Toyota on May 7, 2004, a Friday night. She and defendant’s cousin, Angel Garcia, drove around looking for used cars on their way to pick up defendant. Gaitan had $500 to $700 with which to purchase an inexpensive, used vehicle for defendant to drive to work. She brought Garcia along to drive the newly purchased car back. Gaitan had $60 in cash, and later withdrew $140 from her bank account.

After passing several parked cars displaying “for sale” signs, Gaitan and Garcia spotted the silver Toyota Camry with a “for sale” sign in the back window at a car wash. Gaitan asked a man who had just finished washing the car for the price. Gaitan described the man as five feet eight inches to five feet nine inches, wearing jeans, a T-shirt, and a cap. He offered to sell the Toyota for $1,000.

As Gaitan began walking away, the man lowered the price to $500 and asked how much money she had. He told Gaitan he did not have the pink slip with him but would give it to her at the Department of Motor Vehicles (DMV) the following Monday. Gaitan gave him $200 and agreed to pay the remaining $300 when they met at the DMV and completed the sale prior to registering the car. The man drew up a bill of sale for the Toyota, which stated his name was “Michael Maryet.” He also gave Gaitan his telephone number.

Garcia drove the Toyota, following Gaitan to a friend’s house where defendant was. After they arrived, Gaitan showed defendant the car and Garcia gave defendant the car key. Gaitan told defendant about the arrangement to meet the seller at the DMV the following Monday. Gaitan left and did not see defendant that weekend.

Gaitan never met the man at the DMV because defendant had been arrested and the telephone number the man gave her was incorrect. After his arrest, defendant called Gaitan. Gaitan visited defendant twice a week during most of his incarceration before trial and placed money in his jail account.

About a month after defendant’s arrest, Gaitan gave defense counsel the bill of sale for the Toyota. Gaitan told defense counsel that she, and not defendant, purchased the car. Gaitan testified she would have produced the bill of sale earlier, but defendant directed her not to. Instead, defendant told her there was an ongoing investigation and she should make copies. After she produced the bill of sale, she discovered it bore the date March 7, 2004, not May 7, 2004, the date of the sale.

Prosecution and defense investigators subsequently questioned Gaitan. Gaitan stated she was living with defendant’s grandmother, when in reality she remained in her parents’ home. Gaitan stated she lied to prevent her parents, who disliked defendant, from finding out what was going on. Gaitan testified she was unaware the Toyota had been stolen.

Michael Maryett, whose misspelled name appeared on the Toyota’s bill of sale, also testified. Maryett had been the victim of a theft in which he lost his wallet containing his California identification card, Social Security card, and credit cards. Maryett never possessed a Toyota Camry, nor had he ever sold one to anyone else. The signature on the bill of sale was not Maryett’s. Maryett had never met Gaitan.

Defendant did not testify. The defense called no witnesses.

Defendant moved for a judgment of acquittal pursuant to section 1118.1, a motion the trial court denied. The jury found defendant guilty on both counts. In a separate court trial, the court found both charged prior convictions true.

Defendant filed a motion to dismiss for lack of sufficient evidence or, in the alternative, for a new trial. The trial court granted the motion for a new trial. The People filed a timely notice of appeal.

DISCUSSION

I

The trial court’s decision to grant defendant’s motion for a new trial forms the heart of this appeal. In the face of the People’s challenge to the court’s exercise of its discretion, we quote the trial court’s stated reasoning in its entirety.

“I have reviewed the entire transcript and the People’s brief. In fact, I went one step further and I said if I accept the People’s argument that Ms. Guitan’s [sic] testimony is fabricated and incredible and I disregard it, then I would also disregard as unnecessary the testimony of Mr. Ettison (phonetic) since I would have concluded that the bill of sale was also fabricated.^[[4]]

“Which leaves me with the testimony of the car owner and two officers and one other person. And the testimony of the officers is that the defendant, when arrested, said he bought the car.

“The testimony of the officers was there was no indicia of any ownership of any other person in the vehicle. The testimony of the officers was that it didn’t look like to them on first looking at the car that there had been any forced entrance. And it was only the speculation of the owner that there was forced entrance around the door because of scratches on the door frame. The officers didn’t notice that at the time even that the arrest was made, and they spent 45 minutes or thereabouts waiting for the owner to come.

“Mr. Torres had car keys. The keys were handed to the owner, who took them without commenting, apparently. At least there was no evidence that she said these aren’t my keys or these aren’t the car keys to the vehicle or anything else. There were current plates and current registration on the vehicle. There was no strip or peeling of the steering column.

“The People have the burden of proving the state of mind in both of the charges made. While they proved that the vehicle was stolen and they proved essentially two elements of the first count, that the person, the owner of the vehicle, had not consented to it, they haven’t proven who took it or that Mr. Torres at the time had any intent or even knew that it was stolen.

“Basically the People are asking me, I think, to conjecture or surmise that Mr. Torres should have known it was stolen. And absent consideration of his past record, which is not in evidence in this transcript, there’s no basis to reach that conclusion.

“Mr. Torres himself said he bought the car. If I look at Ms. Guitan’s [sic] testimony, then it also cuts against the specific intent required.

“The motion for new trial, therefore, is granted.”

II

The parties basically agree on the standard of review for granting or denying a new trial motion based on insufficiency of the evidence.

On a motion for a new trial, a trial court must review the evidence independently, considering the proper weight to be afforded to the evidence and then deciding whether there is sufficient credible evidence to support the verdict. However, the court is guided by a presumption in favor of the correctness of the verdict and proceedings supporting it. A trial court’s ruling on a motion for a new trial is so completely within that court’s discretion that we will not disturb the ruling absent a manifest and unmistakable abuse of that discretion. (People v. Seaton (2001) 26 Cal.4th 598, 693; People v. Lewis (2001) 26 Cal.4th 334, 364.)

The appellant must demonstrate that the trial court’s decision was irrational or arbitrary, or that it was not grounded in reasoned judgment and guided by legal principles and policies appropriate to the particular matter at issue. Where the motion is made on a proper statutory ground and the record contains some showing in support of the trial court’s discretion in granting, it is almost invariably upheld. (People v. Andrade (2000) 79 Cal.App.4th 651, 659.)

III

Here, the trial court granted defendant’s new trial motion based on a lack of sufficient evidence to support the verdict. The People, after reviewing the trial court’s comments in granting the motion, label the rendition “materially incomplete, as well as partially erroneous.” The People also characterize the trial court’s finding as arbitrary, vague, or fanciful.

The People charged defendant with buying or receiving a stolen car with the knowledge that it was stolen, and driving the vehicle without the owner’s consent. The court instructed the jury: “If you find that the defendant was in possession of recently stolen property, the fact of that possession is not by itself sufficient to permit an inference that the defendant is guilty of the crimes of unlawfully driving and taking a vehicle without the consent of the owner or receiving stolen property. Before guilt may be inferred, there must be corroborating evidence tending to prove the defendant’s guilt. However, this corroborating evidence need only be slight, and need not by itself be sufficient to warrant an inference of guilt.

“As corroboration you may consider the attributes of possession -- time, place and manner, that the defendant had an opportunity to commit the crime charged, the defendant’s conduct, his false or contradictory statements, if any, and other statements he may have made with reference to the property [including] a false account of how he acquired possession of the stolen property, or any other evidence which tends to connect the defendant with the crime charged.”

In order to prove defendant guilty of taking or driving a vehicle without the owner’s consent, the People had to prove, beyond a reasonable doubt, that defendant possessed the specific intent to deprive the Toyota’s owner of possession of the car. (People v. Green (1995) 34 Cal.App.4th 165, 180-181.) In order to prove defendant guilty of receiving a car that was stolen property, the People had to prove, beyond a reasonable doubt, that defendant knew the Toyota was stolen. (People v. King (2000) 81 Cal.App.4th 472, 476.) The trial court found the People failed to make the requisite showing of defendant’s mental state.

We agree with the trial court’s analysis of the evidence presented at trial. We note the court found this dearth of evidence even after excluding Gaitan’s testimony recounting her purchase of the vehicle. The court carefully considered the testimony of the remaining witnesses: Bachand, Ave-Lallemont, and Echeverria. We carefully reviewed the same evidence.

The People presented no evidence that the car’s physical condition would alert a driver to its provenance as a stolen car. Ave-Lallemont, trained in car theft investigations, examined the car and found no evidence that would indicate it had been stolen. All the instruments that a thief would have tampered with in a theft were intact. Only Bachand noted some scratches to the driver’s side door; the officers noted damage to the car’s bumper and hood, but no damage indicating theft. The People produced no evidence to show defendant knew or should have known he was driving a stolen car.

In addition, both officers testified defendant possessed car keys when they pulled him over. Defendant obediently threw the keys out the window as instructed. Despite their investigative training, the officers failed to carefully examine the keys to determine whether or not they had been filed or shaved, which might have indicated the car was stolen. Although he failed to determine if the key had been shaved, Ave-Lallemont observed the keys closely enough to testify the keychain thrown from the car contained more than one key. The People presented no evidence that the keys themselves would have tipped off defendant that he was in possession of stolen property.^[5]

Nor did the car’s interior provide any clues as to its purloined state. Although Bachand testified she left personal items in the Toyota when it was stolen, officers found none in the car after they pulled defendant over. The car contained no documentation of Bachand’s ownership, documentation that would have alerted defendant the car was stolen.

The People argue evidence at trial revealed the Toyota was acquired at an inadequate price, alerting the purchaser to its stolen status. Bachand testified the “Blue Book” value of the Toyota was $2,100 to $2,500. However, Bachand also testified that after the car’s recovery, she received an estimate of $2,100 for repairs. The People provided no evidence of when the car was damaged or what the car’s condition was when stolen. Without this frame of reference, we cannot ascribe knowledge of the theft to defendant.

The People, citing People v. Russell (1932) 120 Cal.App. 622 (Russell), provide a cornucopia of circumstances that indicate defendant knew the Toyota was stolen. However, Russell concerns a burglary charge, not receiving stolen property.

Nor do any of the “circumstances” enunciated in Russell reveal knowledge on defendant’s part in the present case. In Russell, the court listed a variety of circumstances that could constitute sufficient corroborative evidence when coupled with possession, including: flight, false statements showing consciousness of guilt, false statements concerning acquisition, assuming a false name and an inability to locate the person from whom defendant claimed to have received the property, inadequate price for the property, giving false testimony, and an effort to dispose of stolen property. (Russell, supra, 120 Cal.App. at p. 625.)

Contrary to the People’s assertions, we find none of these circumstances pertinent in the present case. Defendant did not engage in “evasive conduct” prior to being pulled over by officers; he merely hesitated when motioned to move on. Nor did defendant make “false statements” regarding acquisition of the car. Defendant immediately told officers he bought the car. Gaitan also stated she purchased the car for defendant. As discussed, the People failed to present evidence that the car was acquired for an “inadequate price.” Although the People contend defendant failed to provide an “explanation of acquisition,” the People presented no evidence debunking Gaitan’s version of purchasing the car.

The People also contend portions of Gaitan’s testimony were fabricated. Although the trial court initially stated it excluded Gaitan’s testimony in granting defendant’s motion for a new trial, the court concluded: “Mr. Torres himself said he bought the car. If I look at Ms. Guitan’s [sic] testimony, then it also cuts against the specific intent required.” The court weighed all the evidence, including Gaitan’s testimony, and concluded it was not sufficient to support defendant’s convictions. Although the People make a convincing case that Gaitan, through her testimony, attempted to provide defendant with a plausible explanation for his possession of the stolen Toyota Camry, we cannot find the trial court’s contrary conclusion an abuse of discretion. The trial court, along with the jury, heard Gaitan’s testimony and is in a much better position to assess her credibility.

IV

Our finding in support of the granting of defendant’s new trial motion does not end our inquiry. Defendant contends the charges should have been dismissed and retrial barred under double jeopardy principles. The People filed no reply brief in response to this contention.

The trial court found the evidence presented by the People insufficient to sustain the verdict: “The People have the burden of proving the state of mind in both of the charges made. While they proved that the vehicle was stolen and they proved essentially two elements of the first count, that the person, the owner of the vehicle, had not consented to it, they haven’t proven who took it or that Mr. Torres at the time had any intent or even knew it was stolen.” The court ultimately determined there was no evidence to support the conclusion that defendant knew or should have known the Toyota was stolen.

If indeed the record is devoid of evidence that defendant knew the Toyota was stolen, then the trial court should have either granted defendant’s earlier section 1118.1 motion for acquittal or his posttrial motion to dismiss under section 1385. Either action would have terminated the prosecution; defendant could not be retried. Defendant so argues.

People v. Trevino (1985) 39 Cal.3d 667 (Trevino), overruled on other grounds in People v. Johnson (1989) 47 Cal.3d 1194, 1219-1221, is instructive. There, the trial court granted a defendant’s motion for a new trial. However, in granting the motion, the court employed the wrong standard of review. Instead of independently reviewing the evidence, the court employed the substantial evidence test and found the evidence against the defendant insufficient as a matter of law. (Trevino, supra, 39 Cal.3d at p. 694.) The court had earlier denied the defendant’s motion for acquittal under section 1118.1. (Trevino, at p. 694.) As the Supreme Court pointed out, a court decides a motion for acquittal under the substantial evidence standard. (Id. at pp. 694-695.)

In denying the motion for acquittal, the trial court in Trevino expressed serious reservations as to the adequacy of the evidence. After the trial, the court granted the defendant’s new trial motion based on insufficient evidence. (Trevino, supra, 29 Cal.3d at p. 695-696.)

The Supreme Court found: “These conflicting rulings require us to make an initial determination as to the sufficiency of the evidence presented on the murder charge. If the evidence was insufficient as a matter of law, then the trial court erred in not granting the motion for acquittal and Rivas’ subsequent motion to dismiss. If, on the other hand, substantial evidence existed to support the conviction on appeal, then all of the trial court’s rulings would be correct, and the reasons given for granting the new trial could be safely ignored.” (Trevino, supra, 39 Cal.3d at p. 696.) After reviewing the evidence, the Supreme Court found it insufficient as a matter of law and found retrial barred by double jeopardy. (Id. at pp. 696, 699.)

The present case is unlike Trevino. Here the trial court, while expressing serious concerns about the adequacy of the evidence, denied defendant’s motion for acquittal but ultimately granted the motion for a new trial based on insufficient evidence to support the verdict. Unlike the trial court in Trevino, the trial court here did not purport to apply the substantial evidence rule applicable to motions for acquittal but correctly reviewed the evidence in the exercise of its supervisory power over the verdict. In that capacity, the trial court is permitted to disagree with the inferences and credibility determinations made by the jury and reach its own independent conclusion as to whether there is sufficient credible evidence to support the verdict. (People v. Lewis (2001) 26 Cal.4th 334, 364.)

However, the court’s comments on the evidence create some confusion as to whether, while purporting to exercise its powers of independent review, the court determined that no rational trier of fact could find evidence sufficient to convict defendant. If the court found not merely the absence of credible evidence but the absence of any evidence, it should have granted the earlier motion for acquittal and retrial should now be barred.

It is the court’s treatment of Gaitan’s testimony that gives us pause. From the court’s statements it is unclear exactly how the trial court evaluated the witness’s testimony. The prosecution presented Gaitan’s testimony as evidence defendant knew he drove a stolen car. Gaitan’s testimony contained a variety of contradictions, coincidences, and implausibilities. Gaitan stated she purchased the car for $200 after the seller initially demanded $1,000, with the promise of $300 the following week. She bought the car without a test drive and without any proof of the seller’s ownership. Although Gaitan obtained a bill of sale, she never reconnected with the elusive seller to pay the balance or obtain the vehicle’s pink slip.

Following defendant’s arrest, Gaitan met with him in jail and spoke with him by telephone. A month after defendant’s arrest, Gaitan produced the bill of sale and informed defense counsel about purchasing the car.

Viewing the evidence in the light most favorable to the prosecution, the jury could reasonably find that Gaitan, in collusion with defendant, concocted a basis for his innocent possession of the Toyota Camry. The jury, disbelieving Gaitan’s saga of the chanced-upon great deal, could conclude this attempt revealed a consciousness of guilt on defendant’s part. Gaitan’s story provides credible evidence that defendant sought to hide his knowledge of the Camry’s purloined provenance, evidence sufficient to support the jury’s verdict.

However, the court in its recounting of the evidence never discussed Gaitan’s testimony from this perspective but appeared to view it as exculpatory. The court simply stated: “If I look at Ms. Guitan’s [sic] testimony, then it also cuts against the specific intent required.” Ms. Gaitan’s testimony is exculpatory only if it is taken literally and believed.

Thus, to the extent the trial court discounted the incriminatory aspect of Ms. Gaitan’s testimony and found there was no evidence from which the jury could reasonably find defendant knew or should have known the Toyota was stolen, we disagree. As explained earlier, the implausibility of Gaitan’s purchase of the car and her frequent visits to defendant in jail support an inference that defendant and Gaitan concocted the scenario in an effort to free him.

Nevertheless, the trial court could have chosen to believe her testimony and in so doing conclude there was insufficient evidence to support the verdict. While the record is not entirely clear, that appears to be what the court did. Our review of the court’s decision is deferential; “a reviewing court will not disturb the ruling absent a manifest and unmistakable abuse of . . . discretion.” (People v. Hayes (1999) 21 Cal.4th 1211, 1260-1261.) We can find no such abuse in the present case where the question of guilt rests on the credibility of this single witness.

We conclude therefore the trial court properly granted defendant’s motion for new trial but defendant’s retrial is not barred.

DISPOSITION

The judgment granting a new trial is affirmed.

RAYE , Acting P.J.

We concur:

MORRISON , J.

HULL , J.

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^[1] All further statutory references are to the Penal Code unless otherwise indicated.

^[2] Ave-Lallemont testified Bachand later pointed out marks on the door and chips on the doorframe.

^[3] Gaitan owned a late model Honda Civic purchased for her by her parents six days before she purchased the stolen Toyota. Her father paid $15,000 for the Honda, and the process required her to sign numerous papers.

^[4] The court is apparently referring to Maryett, whose name appeared on the bill of sale.

^[5] The People heatedly argue the trial court erroneously found that at the scene the keys were handed over to Bachand. Bachand testified she did not receive the keys. However, the trial court stated: “The keys were handed to the owner, who took them without commenting, apparently.” (Italics added.) Given the testimony at trial, we cannot find the trial court’s observation in error. At the scene there was considerable confusion as to the ultimate fate of the keys thrown from the car. While Bachand stated she never received the keys, Ave-Lallemont testified he gave the keys to Bachand. Ave-Lallemont later testified he could not recall whether he gave Bachand the keys. Echeverria testified he did not retrieve the keys. Regardless of where the keys ended up, the People produced no evidence that the keys used by defendant were shaved keys or supported an inference of illegal entry.