P. v. Stead

Filed 10/24/06 P. v. Stead 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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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Defendant Lawrence Theodore Stead was charged with unlawfully driving a vehicle and receiving a stolen vehicle after he was found driving a stolen car, from which the ignition switch had been removed, requiring the use of pliers to turn the car on and off. Notwithstanding defendant’s argument that he did not know the car was stolen, the jury found him guilty of both offenses.

On appeal, defendant contends the trial court erred in failing to give the jury a mistake of fact instruction (CALJIC No. 4.35) sua sponte.^[1] In the alternative, he contends his trial counsel was ineffective in failing to request a mistake of fact instruction.

“It is well settled that a defendant has a right to have the trial court, on its own initiative, give a jury instruction on any affirmative defense for which the record contains substantial evidence [citation]--evidence sufficient for a reasonable jury to find in favor of the defendant [citation]--unless the defense is inconsistent with the defendant’s theory of the case [citation].” (People v. Salas (2006) 37 Cal.4th 967, 982.) Similarly, “even in the absence of a request, a trial court must instruct on general principles of law that are commonly or closely and openly connected to the facts before the court and that are necessary for the jury’s understanding of the case.” (People v. Montoya (1994) 7 Cal.4th 1027, 1047.)

Even if we assume for the sake of argument there was substantial evidence to support defendant’s claim that he did not know the car was stolen and that he was entitled to a sua sponte mistake of fact instruction, we conclude the trial court’s failure to give such an instruction was harmless under any standard of prejudicial error.

The jury was instructed a person is guilty of unlawfully driving a vehicle only if “[w]hen the person drove the vehicle, he had a specific intent to deprive the owner either permanently or temporarily of her title to or possession of the vehicle.” The jury was also instructed that a person is guilty of receiving a stolen vehicle only if the person “actually knew the vehicle was stolen at the time he bought, received, withheld, concealed or aided in concealing or withholding from the owner the vehicle.” Thus, in finding defendant guilty of both offenses, the jury necessarily found that: (1) defendant knew the car was stolen when he received it; and (2) when he drove it, he specifically intended to deprive the owner of her title to or possession of the car.

By making these findings, the jury necessarily rejected any assertion that defendant was operating under a mistake of fact with respect to his right to drive the car. Where the factual question posed by an omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions, the failure to give the omitted instruction is harmless. (See People v. Burnham (1986) 176 Cal.App.3d 1134, 1150.)

As for defendant’s ineffective assistance of counsel claim, to prevail on such a claim, a defendant must demonstrate that “‘counsel’s representation was deficient in falling below an objective standard of reasonableness under prevailing professional norms.’” (In re Jones (1996) 13 Cal.4th 552, 561.) Defendant has not demonstrated that here. Because the instructions on the elements of the charged offenses already required the jury to decide whether defendant knew the car he was driving was stolen and whether he intended to deprive the owner of title or possession, trial counsel could have reasonably determined that a mistake of fact instruction would have added nothing to defendant’s case. Under the circumstances, it was eminently reasonable for trial counsel to rely on the existing instructions and simply argue, as he did, that defendant “did not actually know this car was stolen so you cannot convict him of Count Two. And because he actually did not know this car was stolen, he had no specific intent to deprive the owner of title or possession.”

DISPOSITION

The judgment is affirmed.

ROBIE , J.

We concur:

BLEASE , Acting P.J.

BUTZ , J.

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^[1] CALJIC No. 4.35 provides as follows: “An act committed or an omission made in ignorance or by reason of a mistake of fact which disproves any criminal intent is not a crime. Thus, a person is not guilty of a crime if [he] [she] commits an act or omits to act under an actual [and reasonable] belief in the existence of certain facts and circumstances which, if true, would make the act or omission lawful.”