Filed 11/28/18 P. v. Madison CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

Scott Ernest Madison challenges his conviction for receiving a stolen vehicle (Pen. Code, § 496d, subd. (a)).[1] He claims the trial court erred by failing to sua sponte instruct the jury “on the legal meaning of the terms ‘theft’ and ‘stolen.’ ” We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The prosecution charged Madison with unlawful driving of a vehicle (Veh. Code, § 10851, subd. (a)); receiving a stolen vehicle (§ 496d, subd. (a)); and resisting or delaying a peace officer (§ 148, subd. (a)(1)). The prosecution alleged Madison had prior convictions for which he had served prison terms.

Overview of Trial

On the afternoon of March 4, 2017, Petaluma Police Officer Chris Ricci drove his patrol car through an industrial area known for burglaries and thefts. Ricci did not notice anything suspicious. When Ricci returned to the area at 1:45 a.m., however, he noticed a Ford pickup truck that was not there earlier. A man—later identified as Madison—was in the driver’s seat, “ducking down” as though he was “trying to hide.” When Ricci got out of his patrol car, Madison jumped out of the truck and fled. Ricci chased Madison and arrested him.

Ricci determined the truck was registered to a school district in Santa Rosa. The truck had not been reported stolen. The truck had logos identifying it as school district property. The steering column and ignition switch had been “damaged” so the truck could be started without a key. In the front console, there was a screwdriver with a filed edge; a law enforcement officer started the truck by inserting the screwdriver into the ignition. A toolbox in the truck appeared to have had been broken into and emptied. Inside the truck were several backpacks; one backpack contained approximately 60 keys to various types of vehicles, including shaved and “jiggler” keys, common tools used “to bypass the factory key.” The school district’s surveillance footage showed a man entering the truck in a suspicious manner on March 3, 2017. The man did not have permission to drive the truck. He did not resemble Madison.

Madison testified a man named Jay picked him up in a truck and offered to give him a ride. It was raining and Madison had nowhere to go, so he got into the truck. He did not see a school district logo on the truck’s passenger door. Madison did not see anything inside the truck that made him think it was stolen—he did not notice the ignition and steering column were damaged. Jay left the truck for about 20 minutes. While waiting for Jay, Madison saw some keys in the cab of the truck, and he put them in his jacket pocket. When a police car drove into the parking lot, Madison fled, to avoid being arrested for violating post-release community supervision. Madison did not know the truck was stolen. He did not drive the truck.

Opening Argument, Jury Instructions, and Closing Argument

In opening argument, defense counsel acknowledged the truck had been “stolen” from the school district. Counsel argued there was insufficient evidence Madison had knowledge of the theft to support a conviction for receiving stolen property.

The parties agreed the court should instruct the jury with CALCRIM No. 1750, on receiving stolen property, including the optional paragraph explaining when and how property can be considered stolen. The court instructed the jury: “The defendant is charged . . . with receiving stolen property. To prove that the defendant is guilty of this crime, the People must prove that: [¶] One, the defendant bought, received, sold, or aided in selling, concealing, or withheld, from its owner, or aided in concealing or withholding from its owner, property that had been stolen or obtained by extortion, and, when the defendant bought, received, sold, aided in selling, concealed, or withheld, aided in concealing or withholding the property, he knew that the property had been stolen or obtained by extortion.

“Property is stolen if it was obtained by any type of theft or by burglary or robbery. Theft includes obtaining property by larceny, embezzlement, false pretense, or trick. [¶] To receive property means to take possession and control of it. Mere presence near or access to the property is not enough. [¶] Two or more people can possess the property at the same time. [¶] A person does not have to actually hold or touch something to possess it. It is enough if the person has control over it or the right to control it, either personally or through another person.” The court also instructed the jury on the union of act and intent (CALCRIM No. 252) and that “[w]ords and phrases not specifically defined in these instructions are to be applied using their ordinary, everyday meanings.” (CALCRIM No. 200.)

In closing argument, defense counsel again acknowledged the truck was stolen. Counsel said: “Yes, we know a car was stolen, and yes, we know Mr. Madison was there at the end, and he ran. . . . [¶] The point here is that the evidence that we have in this case in no way contradicts Mr. Madison’s testimony. Mr. Madison got up there and was honest with you when he didn’t have to be . . . . But what he’s always consistently denied is that he knew that car was stolen, and that he had the ability to control it that night.”

Verdict and Sentence

The jury found Madison guilty of receiving a stolen vehicle (§ 496d, subd. (a)) and resisting or delaying a peace officer (§ 148, subd. (a)(1)). The court struck two of the prior conviction allegations and found true the remaining two allegations. It sentenced Madison to four years in custody.

DISCUSSION

Madison argues his conviction for receiving a stolen vehicle must be reversed because the court failed to sua sponte define the terms “theft” and “stolen.” A trial court has a sua sponte duty to instruct the jury on general principles of law which are “connected with the evidence and which are necessary for the jury’s understanding of the case.” (People v. Estrada (1995) 11 Cal.4th 568, 574.) “As to pertinent matters falling outside the definition of a ‘general principle of law governing the case,’ it is ‘defendant’s obligation to request any clarifying or amplifying instruction.’ ” (Ibid.) A court’s duty to instruct on the general principles of law does not extend to instructions that “ ‘pinpoint’ the theory of the defense.” (People v. Webster (1991) 54 Cal.3d 411, 443.)

“For property to be ‘stolen’ or obtained by ‘theft,’ it must be taken with a specific intent. ‘California courts have long held that theft by larceny requires the intent to permanently deprive the owner of possession of the property.’ ” (People v. MacArthur (2006) 142 Cal.App.4th 275, 280.) A court has a sua sponte duty to define the terms “stolen” and “theft” where “the evidence . . . call[s] into question whether any relevant participant had the requisite intent.” (Id. at p. 280; see also Judicial Counsel of Cal., Crim. Jury Instns. (2017) Bench Notes to CALCRIM No. 1750, p. 1276 [sua sponte definition of theft required where there are “factual issues regarding whether the received stolen property was taken with the intent to permanently deprive the owner of possession”].)

Here, the evidence did not present a factual scenario giving rise to a sua sponte duty to define “stolen” or “theft.” When Officer Ricci saw Madison in the driver’s seat of the truck, its steering column and ignition switch had been altered so the truck could be driven without its key. A filed screwdriver—which started the truck—was inside the truck, and the toolbox in the bed of the truck had been broken into. Inside the truck were keys that had been altered for possible use in vehicle thefts. Similar keys were found inside Madison’s jacket. The school district did not give anyone permission to borrow or drive the truck, and there was no evidence anyone involved with the taking or retention of the truck intended to return it. The evidence did not raise a question about whether the truck was taken with the intent to permanently deprive the owner of possession. Instead, the evidence showed the truck was stolen, and defense counsel conceded as much in her opening and closing arguments.

Madison suggests it is possible the person who took the truck might have intended to return it. Speculation is not evidence, let alone substantial evidence. The court’s “duty to instruct on general principles of law and defenses . . . arises only when there is substantial evidence to support giving such an instruction.” (People v. Crew (2003) 31 Cal.4th 822, 835.) The court had no duty to expand upon the meanings of the terms “theft” and “stolen” in the absence of a specific request. (See People v. Covarrubias (2016) 1 Cal.5th 838, 876 [defendant had burden to “request clarification of the instruction to the extent he deemed ownership of the property taken to be an issue in his case”].) The court’s failure to instruct the jury did not lessen the prosecution’s burden of proof.

Moreover, any error was harmless because no reasonable jury could have found the truck was not stolen. As discussed above, the evidence supporting the conviction was overwhelming, and defense counsel conceded the truck was stolen. (People v. Flood (1998) 18 Cal.4th 470, 505.) Thus, even if the court had instructed the jury on the definitions of “theft” and “stolen,” the jury would have rendered the same verdict.

DISPOSITION

The judgment is affirmed.

_________________________

Jones, P.J.

We concur:

_________________________

Simons, J.

_________________________

Bruiniers, J.

A153292