P. v. Quiroz

Filed 9/4/07 P. v. Quiroz CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Salvador Quiroz appeals a conviction, following a jury trial, of unlawfully driving or taking a vehicle (Veh. Code,  10851, subd. (a)) (count 1), receiving a stolen vehicle (Pen. Code,  496d) (count 2), and driving with a suspended license (Veh. Code,  14601.1) (count 3). The court also found the enhancements true as charged: appellant had a prior conviction for unlawfully driving or taking a vehicle (Pen. Code,  666.5), and he committed the offenses while released on bail (Pen. Code,  12022.1). Appellant was sentenced to a two-year mitigated term on count 1, a concurrent mitigated two-year term on count 2, and a 30-day term on count 3 (with credit for 30 days time served). On appeal, appellant contends that pervasive prosecutorial misconduct deprived him of his right to due process and that he was improperly convicted of receiving a stolen vehicle and stealing that same vehicle. We disagree and affirm.

Background

The victim parked her Honda Accord outside her Richmond residence on the evening of March 8, 2005. When she went outside the next morning around 6:30 a.m., the car was gone. She had not given anyone permission to borrow her car, and she immediately reported her car stolen. Prior to the car being stolen, it had a standard ignition that functioned properly.

On March 11, 2005, at approximately 10:25 p.m., Richmond Police Officer Ellis was on routine patrol when he observed a white Honda run a stop sign. Ellis pulled behind the vehicle, ran a check of the license plate, and determined the car had been stolen. Ellis activated his emergency lights, the Honda turned into a driveway, and Ellis observed appellant exit the vehicle and walk quickly away from the car. A female passenger remained in the vehicle. Ellis ran toward appellant and ordered him to stop, and appellant stopped and was arrested. Once inside the police car, appellant spontaneously stated that he had received the car from an unidentified male, and appellant was going to repair the headlights of the vehicle.

After other officers arrived on the scene, Ellis investigated the inside of the Honda and observed the ignition was out of the vehicle and a house key was inside the ignition. Richmond Police Officer Grivetti, a crime scene investigator, also testified that she investigated the Honda and found the ignition was heavily damaged and there were two pieces of the ignition strewn about the car.

Appellant and his wife each testified for the defense. According to their testimony, on March 11, 2005, they went to the Rancho (or Ranchero) Sports Bar in El Sobrante to visit with Mrs. Quirozs father, who lived in his car in a parking lot behind the bar. Mrs. Quiroz and her father sat in the fathers car visiting, while appellant worked under the hood of the car, trying to get the engine started. A man approached appellant and asked if he worked on cars, and appellant replied that he did. The man told appellant he bought a car from the tow yard and needed help getting the car started and fixing the headlights, and appellant agreed to do it in exchange for $25 to $40. The man led appellant over to the Honda, and told appellant to find him in the bar when the work was completed. Appellant began to work on the Honda and noticed the ignition was messed up, but he did not think the car was stolen because the bar is right next to the tow yard and it was common for people to buy cars at the tow yard that did not have ignitions or keys. Once appellant fixed the car, he returned to the bar but could no longer find the man.

Appellant and Mrs. Quiroz looked for the man and waited, but then decided to use the car to [take] advantage of the ride. They drove to several family members houses to ask for money to purchase food, and after collecting some money, stopped for something to eat. They returned to the bar to look again for the man, but failed to find him. They drove to a friends house, and, on the way, appellant ran a stop sign. Appellant observed the police officer behind him, but pulled into his friends driveway hoping the officer would decide not to give him a ticket. Appellant was worried about getting pulled over because he knew he was driving on a suspended license.

Discussion

I.Alleged Prosecutorial Misconduct

Appellant contends that pervasive prosecutorial misconduct deprived him of his right to due process under the Fifth, Sixth, and Fourteenth Amendments. He argues the prosecutor failed to disclose certain evidence to him and made several improper statements during closing arguments. We reject his contentions.

A. Prosecutors Failure to Disclose Evidence to Appellant

Penal Code section 1054.1, subdivision (b), provides: The prosecuting attorney shall disclose to the defendant or his or her attorney all of the following materials and information, if it is in the possession of the prosecuting attorney or if the prosecuting attorney knows it to be in the possession of the investigating agencies: [] . . . [] (b) Statements of all defendants.

According to the police report provided to appellant during discovery, appellant told Ellis he had received the Honda from an unidentified male. On direct examination, Ellis testified that, once in the police car, appellant spontaneously told Ellis he had received the car from an unidentified male in order to repair the headlights. The prosecutor asked Ellis if appellant said who the individual was, and Ellis replied that appellant had not. The prosecutor asked if appellant said in which city the car was obtained, and Ellis testified that appellant responded, El Sobrante. On cross-examination, defense counsel questioned Ellis about appellants statement, and asked, Did you ask him who that guy was? Ellis replied, Yes. . . . He refused to tell me. Defense counsel clarified, Refused to tell you or said he didnt know? Ellis responded, [H]e said he wouldnt tell me. Defense counsel elicited the fact that this was not in Elliss police report, and Ellis stated his report was a summary.

Appellant contends the inculpatory statement that he refused to answer Elliss questions called into question appellants credibility and the theory of the defense. Appellant argues that the prosecutions failure to disclose this inculpatory statement prior to it coming out at trial forced him to change his defense strategy midtrial, and he was deprived of his constitutional rights.^[1] We disagree.

First, there is nothing in the record to suggest the prosecution knew that Ellis would testify that appellant refused to disclose the identity of the man who gave him the car. On direct examination, in response to questions from the prosecutor, Ellis testified consistently with his report. In fact, when defense counsel elaborated on her objection to Elliss testimony, she stated, I think that it is extremely probative that the officer never wrote this in his police report, never testified to it before. The court confirmed this and stated, Neither the police report nor the preliminary hearing testimony solicited the fact that the officer asked who the man was and [appellant] refused to respond, which was brought out here.^[2] From the record, it appears that neither counsel knew Ellis would testify appellant refused to provide an identification until the officer answered defense counsels question. If the prosecutor did not have prior notice that the officer would so testify, there was no misconduct.

Second, even if the prosecutor had reason to know that the officer would testify in this fashion, and, consequently, a discovery violation occurred, appellant cannot demonstrate prejudice. After defense counsel objected to Elliss testimony, the trial court offered defense counsel a continuance to prepare a response or present other witnesses, but defense counsel declined. The court also found Elliss testimony regarding appellants refusal to answer inadmissible in the Peoples case-in-chief, and the court stated it would instruct the jury not to consider the response at that stage in the proceedings. (The court noted it could become admissible later to impeach appellant if he testified.) However, defense counsel specifically rejected a curative instruction. Under these circumstances, even if there was error, it was invited. (See People v. Cooper (1991) 53 Cal.3d 771, 827 [finding the defendant was barred from asserting error under the invited error doctrine, where the record demonstrated the court would have given a particular instruction but for the defendants objection].)

Further, defense counsel was immediately able to elicit from Ellis that appellants refusal to disclose the mans identity was not in Elliss police report. Appellant later testified that I didnt remember his name so I couldnt tell him. Its not that I didnt want to tell him. Finally, it is unclear how appellant was forced to change his defense strategy midtrial, as his defense continued to be that an unknown man asked appellant to fix the Honda in the Rancho parking lot, and appellant did not know the car was stolen.

B. Prosecutors Statements During Closing and Rebuttal Closing Arguments

  A prosecutors . .  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.] As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashionand on the same groundthe defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.] Additionally, when the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. [Citation.] (People v. Samayoa (1997) 15 Cal.4th 795, 841.)

Appellant contends that the prosecutor made several improper, prejudicial remarks during closing argument, and that this misconduct individually and cumulatively constituted a violation of appellants right to a fair trial, requiring reversal.

1. Prosecutors Reference to Appellant as a Convicted Felon

Appellant first contends the prosecutor improperly urged the jury to convict based on propensity evidence, by repeatedly referencing appellants prior conviction. Appellants felony theft conviction was admitted for impeachment. The court instructed the jury, The fact that a witness has been convicted of a felony, if this is a fact, may be considered by you only for the purpose of determining the believability of that witness. [] The fact of a conviction does not necessarily destroy or impair the witnesss believability. It is one of the circumstances that you may consider in weighing the testimony of that witness.

During closing arguments, the prosecutor made reference to appellants prior conviction four times: (1) We heard the evidence. And there is choices we have to make. Is [appellant] some country bumpkin who accidentally ended up in a stolen car, or is he a savvy person who hangs out at the . . . Rancho parking lot, who is a convicted felon and who has lived on the street, and he earns his living on the street by helping people out? (2) Although [appellant] says the fact that the ignition was all over the car, he was driving it with the house key, it never dawned on him as a convicted felon, someone who needs a car, that this car possibly could be stolen. (3) And, also, if some guy you never met before, and you dont know his name, is telling you he got some car from the tow yard, and the person leaves you with that car without the key and then you see the damaged ignition, whatever, that is still pretty strong evidence that that guy might not be telling the truth, because lets face it, this guy knows the parking lot of Rancho Market. He is a smart person. He is a convicted felon. He earns his living on the street. This is not somebody who ended up in a stolen car. (4) Count 2 requires only the slight corroboration, and we have that from the totality, because you can try to explain away the pieces of the puzzle, but you cant explain away the picture of a convicted felon getting a stolen car in the parking lot of Rancho Market. And just take a step back and evaluate everything from the totality and the aggregate. And when you do that, you can see the picture here is someone driving the stolen car.

Defense counsel did not specifically object to any of these comments referencing appellants prior conviction. The claim is deemed waived by this failure. (See People v. Samayoa, supra, 15 Cal.4th at pp. 841-842.) Even on the merits, however, we reject appellants position. The fact of appellants prior conviction was admitted as impeachment evidence. In his closing arguments, the prosecutor repeatedly attempted to discredit and question appellants testimony that he had no idea the Honda was stolen. We find it a close question whether the prosecutor strayed over the line by characterizing appellant as a savvy, street-wise ex‑convict who was unlikely to believe the Honda was owned by the man at the bar. In any event, even if the comments were improper, they were certainly not egregious and appellant was not prejudiced by them. The jury was specifically instructed that the fact of a prior conviction could only be considered for the purpose of determining the believability of a witness, and we presume the jury followed this instruction. (People v. Houston (2005) 130 Cal.App.4th 279, 312.)

2. Prosecutors Remark Regarding Count 3

Appellant next contends the prosecution improperly suggested that count 3 was charged in the information by the defense as a means of manipulating the jury to convict appellant of a lesser offense. He argues that, in this way, the prosecution suggested the existence of evidence that he was privy to, but was not admitted at trial.

In his closing argument, the prosecutor stated, Ill skip to count 3. Driving on [a] suspended license. [Appellant] drove a car, his license was suspended and he knew his license was suspended. [] And in this case he admits that his license was suspended. That is the easiest count there is. This is the throw away count. They want this here, so you convict him on count 3, and you think for that youre doing the community some good. At this point, defense counsel objected that the argument was improper, the court sustained the objection and the prosecutor moved on.

When the parties and court discussed the objection at a later point outside the presence of the jury, defense counsel explained that she viewed the prosecutors statement as improper, as the [prosecutor] knows full well that the reason that that charge is on the Information is because [the prosecutors] office has decided to charge him with that offense, and that [appellant] has a right to a trial on that offense. And to imply that we somehow put this on there in order to get them to convict him of something else is completely improper and dishonest. The court responded, I didnt understand it to suggest that the defense put the charge on the Information, but that the defense was conceding count 3 and hoping that it would end up in a compromised verdict, at least that is what I was anticipating. [] I didnt think it was an appropriate argument, and that is why I sustained the objection, but I agree with [the prosecutor] that very little of it was actually articulated in front of the jury before you objected appropriately and I sustained it. And [the prosecutor] did move on. . . . [W]e all could anticipate the argument from having been in this business for a while, but I dont think the jury got enough for them to have even understood the argument, much less used it inappropriately. [] So I think the sustaining of the objection on the second point cured that, or solved that problem.

Appellant argues the prosecutors remark urged the jury to decide the case based on evidence outside the record and therefore denied appellant his right to a fair trial. Appellant does not elaborate further on the potential harm created by this comment. As the trial court noted, however, the objection was made and sustained immediately and the prosecutor moved on. The prosecutor did not expressly urge the jury to convict appellant based on additional evidence outside the record, and there is nothing in the record to suggest the jury improperly construed or applied the prosecutors comment in an objectionable fashion.^[3]

3. New Theory of Guilt Offered in Rebuttal

Finally, appellant contends the prosecutor committed misconduct by improperly introducing a new theory of guilt related to count 1 in his rebuttal closing argument. He argues that during closing argument, the prosecution argued that appellant was unlawfully driving the vehicle as the individual who stole the car from its rightful owner. Appellant contends the prosecutor changed his tact in his rebuttal by arguing that appellant could still be guilty of count 1 if he had not obtained permission to drive the car from the unidentified male in the parking lot.

Specifically, appellant points to the portion of rebuttal where the prosecutor stated, Okay. Count 1. For count 1 there is three elements. [] A person drove a vehicle belonging to another person. [] [Appellant] drove [the victims] car. That element is met. Nothing [defense counsel] said in her closing argument, no evidence has been presented not to counter this. This is proven. [] The other person had not consented to the driving of the vehicle. [] In this case, nobody gave permission for [appellant] to drive the [Honda]. Nobody gave him consent. Nobody gave him permission. Not mystery man, and not certainly the registered owner, the victim in this case, nobody gave him permission to drive the car. [] He drove the car because he wanted to. Now, whether or not he is holding it to get paid by this mystery person is completely irrelevant. There is no law the judge gave you that said if you have a good faith believe that the person owes you money, by all means keep his car. Nothing like that.

At this point defense counsel asked to approach, and the parties had a discussion off the record. Defense counsel later clarified on the record, outside the presence of the jury, that she had objected because she perceived that the prosecutor was advancing a new theory on rebuttal. The court clarified that it believed the prosecutor was still within the same theory he argued in closing.

The record supports the conclusion that the prosecutors remarks on rebuttal did not set forth a new theory of guilt. In his closing argument, the prosecutor argued, He went to Rancho Bar that day on the bus. He talked about when he got this car, he wanted to, quote, take advantage of the ride. And that is absolutely what he did. He hopped in the car and they ran errands and they went around . . . town on this car. [] When he was doing this he does not have the permission of anybody. He made the choice. . . . [] . . . Even though his license is suspended, he made the choice to drive the car. Even though he knows that he doesnt have permission from anybody to drive that car, he starts it. And he starts it with a house key. . . . And he decided to start that car. Nobody told him he had to do that. Specifically regarding count 1, the prosecutor stated, When [appellant] was driving this car, does he know that the car doesnt belong to him? In other words, does he know that there is an owner out there who would probably like their car back? Absolutely. [] Hes driving this car. Did he pay for this car? Did he get permission to borrow the car from anybody? No, he took it from a parking lot of Rancho Bar with a house key. He has no permission whatsoever. But he wanted to take advantage of the ride.

The record shows that the prosecutor argued broadly in his closing argument that appellant had not received permission to drive the car from anyone. The prosecutors argument on rebuttal that appellant did not have permission to drive the car from anyonenot the rightful owner nor the unidentified manwas therefore not a new theory advanced for the first time on rebuttal.

II. Convictions Under both Penal Code Section 496d and Vehicle Code Section 10851

Appellant relies on Penal Code section 496 to contend he was improperly convicted of buying or receiving a stolen vehicle and also of the unlawful driving or taking of a vehicle. Section 496 provides in part: A principal in the actual theft of the property may be convicted pursuant to this section. However, no person may be convicted both pursuant to this section and of the theft of the same property. A common law rule likewise prohibits separate convictions for stealing and receiving the same property. [Citation.] (People v. Garza (2005) 35 Cal.4th 866, 874.) We disagree that appellant was improperly convicted.^[4]

In Garza, the California Supreme Court analyzed the prohibition of separate convictions of the same person for stealing and receiving the same property. The court explained, Subdivision (a) of Vehicle Code section 10851 (hereafter section 10851(a)), defines the crime of unlawful driving or taking of a vehicle. Unlawfully taking a vehicle with the intent to permanently deprive the owner of possession is a form of theft . . . . On the other hand, unlawful driving of a vehicle is not a form of theft when the driving occurs or continues after the theft is complete (for convenience, [hereafter referred to] as posttheft driving). Therefore, a conviction under section 10851(a) for posttheft driving is not a theft conviction and does not preclude a conviction under [Penal Code] section 496[, subdivision] (a) for receiving the same vehicle as stolen property. (People v. Garza, supra, 35 Cal.4th at p. 871.) When it is not reasonably probable that a properly instructed jury would have found that the defendant took the vehicle but did not engage in any posttheft driving, a reviewing court may construe the . . . section 10851(a) conviction as a conviction for posttheft driving and on this basis may uphold the conviction under Penal Code section 496[, subdivision] (a) for receiving the same vehicle as stolen property. (Garza, at p. 872.)

Here, the prosecutions case focused on the events of March 11, 2005, when appellant ran a stop sign while driving the Honda. The prosecutor did not suggest appellant was guilty of stealing the car from the victims residence, but instead focused on appellants act of driving the car two days after the car was stolen. In this case, we cannot say a jury could reasonably have found appellant guilty of violating section 10851(a) by stealing the car, but not by posttheft driving, and we construe appellants conviction under section 10851(a) as a nontheft conviction for posttheft driving. Both convictions were, therefore, appropriate. (See People v. Garza, supra, 35 Cal.4th at p. 882.)

Disposition

The judgment is affirmed.

SIMONS, J.

We concur.

JONES, P.J.

NEEDHAM, J.

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^[1] Appellant also notes that the evidence regarding statements made by appellant in the police car was the very evidence [the prosecution] sought to exclude with an in limine motion. It does not appear that this issue is the basis for a claim of error on appeal; rather, appellant merely comments that it exacerbated the prosecutions failure to disclose all of appellants statements.

^[2] At the preliminary hearing, Ellis testified, He made spontaneous statements saying that he had received the car from an unidentified male and that he was repairing the headlight on the vehicle. Ellis was not questioned further about appellants statement.

^[3] Appellant argues that the prosecutor again made an improper statement in this regard when he later stated, Now, the defense is going to fall under the count 3 sword of driving on a suspended license. However, the prosecutor continued, That is why he doesnt want to see the police. But I submit to you there is more reasons why he didnt want to see the police that day than just his suspended license. Read in context, it is clear the prosecutor was referring to appellants reliance on his suspended license violation to explain why he quickly walked away from the vehicle when he was pulled over. This reference to the count 3 charge is therefore unrelated to the previous comment appellant complains about.

^[4] Neither party briefs the issue that appellant was convicted pursuant to Penal Code section 496d, and not Penal Code section 496. Because we reject appellants contention, we do not decide to what extent the statutory language in section 496, precluding conviction of a defendant for stealing property and for receiving the property stolen, applies to section 496d.