P. v. Hernandez

Filed 10/28/08 P. v. Hernandez CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County. Robert J. Perry, Judge. Affirmed as modified.

Christine C. Shaver, under appointment by the Court of Appeal, for Defendant and Appellant Alex Hernandez.

Mark S. Givens, under appointment by the Court of Appeal, for Defendant and Appellant Oscar Mejia.

David M. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant Luis DeJesus.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Jaime L. Fuster, Deputy Attorney General, for Plaintiff and Respondent.

INTRODUCTION

A jury convicted defendants and appellants Alex Hernandez (Hernandez), Oscar Mejia (Mejia) and Luis DeJesus (DeJesus) (collectively, defendants) of various crimes arising from their participation in an auto theft ring that operated by obtaining a vehicle identification number (VIN) for a target vehicle, then accessing a General Motors database to obtain a key code and make a duplicate key for the vehicle. The vehicles usually were stolen at night from the owners residences.

On appeal, defendants contend that (1) the trial court improperly admitted evidence of an uncharged crime, i.e., that Mejia possessed the key to a stolen truck; (2) there was insufficient evidence to sustain their convictions; (3) the trial court erred by sentencing defendants to the upper term; (4) the trial court violated Penal Code section 654[1]by imposing consecutive sentences on DeJesus convictions for grand theft auto and unlawful VIN activity relating to the same vehicle; (5) the restitution fines imposed by the trial court were unauthorized; and (6) the presentence credit awarded to Mejia and DeJesus was erroneous or improperly recorded on the abstracts of judgment. We conclude that the last two of these arguments have merit, and order the judgments modified accordingly. In all other respects, we affirm.

BACKGROUND

A. The Prosecution Case[2]

1. Key Codes and DowneyPontiac

Each vehicle manufactured by General Motors (GM) has a VIN, which is a unique 17-digit identifying number for that particular vehicle. GM also assigns each vehicle a key code, which is associated with and accessed using the vehicles VIN. GM maintains a database of key codes that is accessible to GM dealerships through a private computer network called GM Dealer World. The key code for a particular vehicle permits any lock shop or locksmith with the proper equipment to make a duplicate key for the vehicle. Dealerships most often use key codes to make duplicate keys for customers who have lost their keys, or to make duplicate keys for a dealerships sales or service personnel who have lost the keys to, or locked the keys inside, a car while the car is on the lot. GM makes a record of each request for a key code and is able to audit key code requests. The GM Dealer World website is password protected. The site states that key code information is proprietary and instructs dealership personnel to require customers to document their ownership of the vehicle prior to divulging the key code.

Downey Pontiac GMC Buick (Downey Pontiac) was a GM dealership located in Downey, California. Chris Laney worked there for 11 years and was the foreman of the Service Department. Laney had access to customer key codes. The dealership had the equipment to cut new keys. The dealerships policy was to obtain the customers drivers license and registration for the relevant vehicle prior to making a new key, and to log all keys made for customers. Employees were not required to log keys made for an employee who had lost a key in the Service Department or locked the key in the car. There were three computers with access to GM Dealer World located in the Service Department; there was another computer with access in the break room.

2. The DowneyPontiac Surveillance

In late 2005 and early 2006, members of the Orange County Auto Theft Task Force (OCATT) and the Los Angeles County Taskforce for Regional Autotheft Prevention (TRAP) were investigating thefts of GM vehicles. Henry Jackson, an investigator contracted to work with General Motors Global Security, generated and provided to police audits of all key code requests from Downey Pontiac beginning September 1, 2005. Long Beach Police Department Detective Joseph Starbird, assigned to TRAP, determined that from September through December 2005, Downey Pontiac had requested key codes for 39 vehicles that subsequently were reported stolen.

In March 2006, with the consent of Downey Pontiacs owner, OCATT installed video surveillance devices and computer monitoring software at Downey Pontiac that, among other things, generated hourly reports of key code requests made on Downey Pontiac computers. Based on the information generated in those reports, OCATT and TRAP began to surveil and place tracking devices on vehicles that were the subject of key code requests.

In June 2006, OCATT executed a search warrant at Downey Pontiac. Among other things, police recovered a 16-page document from Chris Laneys tool box. The document contained a two-column list of partial VINs and matching key codes. Laney admitted to requesting approximately 20 key codes and giving them to a person he identified as Adam Sanchez, who worked at another dealership.

3. DeJesus

a. Counts 6 and 7Attempted Grand Theft

In April 2006, Jaime Villar lived on Adele Avenue in Whittier. He owned a 2003 Chevrolet Tahoe. Although he usually parked his vehicle in his driveway, Villar testified that on the relevant night he had parked the vehicle on the street in front of his house. To start the Tahoes engine, one needed both the key in the ignition and to push the button on a remote device. The key alone would open the door, however. Villar had not given permission to anyone to take his vehicle.

In April 2006, Omar Gutierrez lived on Lyle Avenue in Whittier, less than one mile from Jaime Villar. He owned a black 2004 Chevy Avalanche. He had possession of both keys to his vehicle, and had given no one permission to move his car from his residence. He normally parked the Avalanche in his driveway.

On the night of April 23, 2006, TRAP detectives were to surveil both Villars Tahoe and Gutierrezs Avalanche. At approximately 10:00 p.m., while en route to scout the location of Gutierrezs Avalanche on Lyle Avenue, members of the surveillance team saw a purple Honda that was on a list of suspect vehicles. The Honda passed the officers van heading in the opposite direction. California Highway Patrol (CHP) Investigator Michael Maletta, a member of the TRAP surveillance team, identified DeJesus both from a photograph and in court as the driver of the Honda. Los Angeles Police Department (LAPD) Detective Kevin Romine also saw and identified DeJesus. The surveillance team turned their van around to go the same direction as the Honda, which was heading in the direction of Villars home on Adele Avenue. The officers saw the purple Honda turn onto Adele Avenue.

Later that night, Detective Romine was conducting surveillance of Gutierrezs black Avalanche on Lyle Avenue. He saw a purple Honda, with the same license plate number as the Honda he had seen earlier in the evening, turn onto Lyle Avenue. The Honda went to the end of the street and made a U-turn, then parked in front of a house. A large man wearing black sweats got out and approached the Avalanche. The man opened the door and got in the drivers side of the vehicle, sat in it briefly, then got out and walked back to the Honda, where he appeared to speak to the driver of the Honda. He returned to the vehicle, sat in it briefly again, and then again went to speak to the driver of the Honda. He got back in the Avalanche one last time, stayed there briefly, then got back in the Honda. The Honda drove away. Detective Romine radioed the other members of the surveillance team and told them what he had seen.

L.A. Sheriffs Department Detective Michael Carnakis was conducting surveillance of Villars Tahoe on Adele Avenue. At approximately 12:30 a.m., Detective Carnakis received information regarding a purple Honda on the police radio. He then saw a purple Honda driving south on Adele. There appeared to be two people in the Honda. The Honda passed Detective Carnakis, then made a three-point U-turn and stopped in the middle of the street in front of Villars house. A man got out of the passenger side of the Honda and walked to Villars Tahoe. The man approached the drivers side door of the Tahoe and opened it. It appeared he did so with a key. He got in the vehicle and began to manipulate something in the ignition area. The headlights of the Tahoe began flashing. The man got out of the Tahoe, went back to the Honda and had a discussion with the driver, and then got back in the Tahoe and attempted to start it five or six more times. The lights flashed again, but the car did not start. The man got out of the Tahoe and got back in the Honda, which drove away. The license plate of the Honda seen by Detective Carnakis on Adele Avenue matched the license plate of the Honda seen by Detective Romine on Lyle Avenue.

b. Counts 14 and 15Grand Theft and Unlawful VIN Activity

In March 2006, Joel Robles lived on Van Ness Avenue in Los Angeles. He was the owner of a 2003 Cadillac Escalade. The night of March 14, the Escalade was parked in Robless driveway. When Robles got up to go to work on March 15, the Escalade was gone. There was no broken glass or debris where the car had been parked. Robles had the only key to the Escalade in his possession. He had never taken it to Downey Pontiac.

At approximately 3:00 a.m. on the morning of March 15, 2006, LAPD Detective Paul Marenko was conducting surveillance of Robless Escalade. Police had placed a tracking device on the vehicle. Detective Marenko saw a blue Toyota Highlander pull up near the Escalade with its headlights turned off. A man wearing a black baseball cap got out of the passenger side of the Highlander and, appearing to use a key, got into the drivers seat of the Escalade. The motor started, and the Escalade pulled out of the driveway. The Escalade followed the Highlander away from the location. Detective Marenko identified DeJesus as the driver of the Highlander.

On March 22, 2006, police tracked Robless Escalade to Croesus Avenue in Los Angeles. Detective Starbird observed the Escalade parked behind a house. DeJesus was present. Detective Starbird observed a circular hole in the windshield where the dashboard VIN plate would be. DeJesus and two other individuals removed and replaced the windshield. Detective Starbird photographed the process. The Escalade was recovered in April 2006. The license plates and VIN information on the Escalade had been changed.

4. Mejia

In May 2006, Maricela Brown owned a green 2004 Chevy Avalanche. She last saw the vehicle when she parked it across the street from her residence; when she came out later, the vehicle was gone. She had not given anyone permission to take the vehicle.

On May 30, 2006, a TRAP surveillance team was conducting surveillance of a blue Dodge Caravan that was registered to defendant Hernandez. The van was parked near an auto dealership at Jefferson Boulevard and Flower Street in Los Angeles. Victor Alas[3]came out of the dealership and got into the van. Detectives followed the van to various locations as it traveled generally westward. At one point, the van stopped at the Wilshire Inn, a hotel on Third Street just east of Vermont. Mejia got into the van. The van went into a neighborhood near the intersection of Pico Boulevard and Arlington Avenue in central Los Angeles. When the van reappeared, it appeared to be traveling with a green Chevy Avalanche. The Avalanche was being driven by Mejia. The license plates on the Avalanche matched those on Maricela Browns Avalanche.

The van and the Avalanche both stopped at a gas station. Officers then followed the Avalanche east on the 10 freeway to Alameda Street, where the Avalanche drove into an auto glass shop. After approximately 45 minutes to one hour, the Avalanche proceeded south on Alameda to First Street. LAPD Detective George Molina, acting on information he received on the radio, located the Avalanche minutes later parked on the street, across from the blue Dodge Caravan. The license plates on the Avalanche had been removed and replaced with paper dealership plates, such as those on newly purchased vehicles. There was also blue tape around the upper edge of the windshield. The VIN on the dashboard plate did not match the VIN reflected in DMV records.

On May 30 or 31, 2006, Long Beach Police Department Detective Sergeant James Williams was conducting surveillance at the Wilshire Inn. In the parking lot, Sergeant Williams saw a Ford F-250 pickup truck that had paper dealer plates on it. The pickup had been stolen from the home of Scott Churchill in Huntington Beach the night of May 21.

On May 31, LAPD Officer Stuart Michelson, who was on loan to TRAP, was present when patrol officers conducted a traffic stop of a Chrysler Sebring being driven by Mejia. Victor Alas was a passenger in the vehicle. The patrol officers removed a single non-factory key from Mejias pocket. Police later used the key to start Churchills stolen Ford pickup.

The Sebring that Mejia was driving was impounded and inventoried. The car contained a rental agreement for the Sebring in the name of Oscar Boldo. In the trunk, police found some socket drives; a cordless hand drill; and a blue nylon gym bag containing screwdrivers, hammers, drill bits and vice grips. One of the drill bits had pieces of metal stuck on it that proved to be two rosette rivets, the sort used by GM to affix VIN plates to the dashboard of GM vehicles.

5. Hernandez

a. Count 13Unlawful VIN Activity

In April 2006, Victor Avina lived in Sylmar and owned a 2005 Chevy 2500 pickup truck. On the evening of April 11, he parked the truck in his driveway. The next morning, it was gone.

Avinas truck was under surveillance by a TRAP surveillance team when it was stolen. Los Angeles County Sheriffs Department Detective Grady Miles saw a silver Daewoo automobile pass his location and make a u-turn at the end of the street, which was a cul de sac. The car slowed down as it passed Avinas house; it then turned left onto an adjacent street and out of Detective Miless view. Twenty minutes later, the Daewoo reappeared, with the windows rolled down and its headlights turned off. The driver of the Daewoo got out of the car, and the passenger slid into the drivers seat. The man who had gotten out of the car walked up to Avinas pickup, opened the door and got into the drivers seat. The man let the pickup roll out of the driveway before starting it. The trucks headlights came on, but the man quickly turned them off. Both vehicles left the area. Detective Miles identified Carlos Ayala, a codefendant at trial, as one of the men. Hernandez testified that the Daewoo belonged to his father.

Police had placed a tracking device on Avinas truck. On the morning of April 13, 2006, Officer Michelson followed Avinas truck to an address on Navarro Avenue in Pasadena that was associated with Hernandezs brother, Jovel.[4] Avinas truck was driven to the rear of the lot, where there was a separate residence. A silver Daewoo arrived and parked near the truck. A man, later identified as Hernandezs brother Mario, took a slab of granite out of the Daewoo and put it in the bed of the truck. Mario Hernandez then removed the license plates from the truck and put on paper dealer plates. He then backed the truck out of the driveway and parked it on the street.

Later that day, Avinas truck was again moved to the rear of the lot on Navarro Avenue. Officer Michelson observed Mario Hernandez use a cutting tool to cut the rubber around the windshield. Hernandez then arrived and joined Mario. They removed the windshield from Avinas truck. A Toyota pickup truck carrying windshields in its bed arrived; the driver of the Toyota sat in Avinas truck while Hernandez and Mario did something with the front of the truck. After they finished installing a new windshield, Hernandez went into the rear house carrying a small black canvas tool bag.

On June 20, 2006, police executed a search warrant at Hernandezs residence on West Hammond Street in Pasadena. Among other things, police recovered a cream-colored shoulder bag from behind the sofa that contained two keys, a die stamp kit, a cordless drill, an exacto knife and other items that could be used in a VIN-switching operation. In a plastic grocery bag on the patio, police recovered paper dealer plates from Pasadena Ford and miscellaneous license plate frames. In an upstairs bedroom that appeared lived in, police recovered two drivers licenses, U.S. and Honduran passports, and a certificate of naturalization in Hernandezs name.

b. Count 18Receiving Stolen Pickup Truck

In February 2006, Kent Gilcrease lived on East Hillcrest Boulevard in Monrovia. He owned a gold 2004 Chevy 2500 pickup. On February 27, he parked the truck in front of his house under a streetlight. Less than half an hour later, he discovered the truck was missing. When he later got the truck back, the license plates were missing.

Michael Perrette lived on West Hillcrest Boulevard in Monrovia, less than one-half mile from Gilcrease. He owned a black 2005 Chevy 2500 pickup. He parked his truck at his residence. After receiving a telephone call from police, he saw that his truck was missing.

On February 27, 2006, CHP Officer Michael Pimental, a member of OCATT, went to Monrovia to contact people he believed might be victims of an auto theft ring. At 7:30 p.m., Officer Pimental drove by Perrettes house on West Hillcrest, where he saw Perrettes black pickup truck. A minute or so later, he drove by Gilcreases house on East Hillcrest, where he saw Gilcreases gold pickup truck. Police placed a tracking device on Gilcreases gold pickup.

Later that evening, Officer Pimental received a telephone call from another member of OCATT, Huntington Beach Police Department Detective Jonathan Haught. Acting on information he received from Detective Haught, Officer Pimental began tracking Gilcreases gold pickup, which was heading westbound on the 210 freeway. Officer Pimental tracked the gold pickup to Eucalyptus Lane in Pasadena. He saw that Perrettes black pickup, which he had seen earlier in Monrovia, also was there. Eucalyptus Lane was approximately 200 yards away from Hernandezs residence on West Hammond Street.

CHP Sergeant Ronald Brame also was assigned to OCATT. At approximately 10:00 p.m. on February 27, 2006, Sergeant Brame went to both Perrettes and Gilcreases homes in Monrovia; neither Perrettes black pickup nor Gilcreases gold pickup was at those locations.

Sergeant Brame then went to the area of Eucalyptus Lane in Pasadena, where members of OCATT set up a surveillance. After approximately 12 to 14 hours, both Sergeant Brame and Officer Pimental saw the gold truck move and head south on Kirkwood Avenue. A blue Dodge Caravan was following the gold truck. The gold truck passed Officer Pimentals observation post. Officer Pimental identified Hernandez as the person driving the gold truck, both in a photo that same day and again in open court.

Sergeant Brame tracked Gilcreases gold truck to another location in Los Angeles, and then returned to the surveillance at Eucalyptus Lane. There, he saw Perrettes black truck move. He followed the truck less than one mile to 1247 North Raymond Street. Sergeant Brame saw one person get out of the drivers side door of the pickup. Sergeant Brame subsequently identified that person from a photograph and in court as Hernandez. Hernandezs brother Jovel then lived at 1247 North Raymond Street; Hernandezs father lived next door.

B. The Defense Case

1. DeJesus

Detective Carnakis was the designated report writer and wrote the report concerning Detective Romines observations of the theft of Gutierrezs Avalanche on April 23 and 24, 2006. (See Background, Part A.3.a, ante.) Detective Carnakis did not personally participate in that surveillance. Although Detective Romine had testified during the prosecutions case-in-chief that the man who allegedly had attempted to steal the Avalanche had gotten into the vehicle, the report authored by Detective Carnakis did not state that the man had gotten into the car. Instead, the report stated that the key might not have worked in the door. Detective Carnakis testified that, when he discussed the surveillance with Detective Romine, he thought that Detective Romine believed the man had not gotten into the car. Detective Romine testified that he did not remember telling this to Detective Carnakis, and that he had testified to what he had seen.

2. Hernandez

On February 28, 2006when Sergeant Brame identified Hernandez from a photograph as the person who had driven Gilcreases stolen truckDetective Pimental had shown Sergeant Brame only one photograph and had told Sergeant Brame that the photo showed Hernandez. (See Background, Part A.5.b, ante.)

On May 9, 2006, Los Angeles Deputy Sheriff Andrew Turpen observed three men working on a suspected stolen Escalade on Howard Street in Pasadena. One of those three men was Hernandezs brother, Jovel. Jovel had been carrying a green duffel bag when police detained him. Jovel had been working near the Escalades VIN plate with a hand tool.

Hernandez testified on his own behalf. Hernandez worked full time as a dump truck driver for a man who owned several dump trucks. He had lived on West Hammond Street for about 10 years. Hernandez had four brothersIsrael, Mario, Jovel and Hector. Several of the prosecutions surveillance photographs showed his brothers Jovel and Mario. Hernandez denied driving Gilcreases stolen gold truck on Eucalyptus Lane, although he lived nearby. His brother Jovel used to live on Raymond Street in Pasadena; Hernandez used to visit there. Hernandezs father lived next door to Jovel. Sometime after February 2006, Jovel moved from Raymond Street to Navarro Avenue. Hernandezs brothers sometimes stayed overnight at Hernandezs house. He never saw the items seized by police from his residence when they executed the search warrant. The blue Dodge Caravan was Hernandezs for about a week; he then sold it to his brother Jovel. Jovel, however, did not pay the full purchase price and never registered the van in his own name. Hernandez had picked up the van from a police impound lot.

In 2000, Hernandez had been arrested with his brother Mario in a stolen car. Hernandez also owned a red Ford Ranger pickup truck. The silver Daewoo was his fathers car. Hernandez identified his brother Mario as driving the Daewoo in a surveillance photograph. Hernandezs red Ford Ranger also appeared in the same photograph. In the photograph, Jovel was in the passenger seat of the truck, but Hernandez testified that he was unable to identify the driver. Hernandez admitted that he was in several of the surveillance photos. Eucalyptus Lane was blocks away from his house on West Hammond Street.

C. Procedural Background

Defendants and eight others were charged in an amended indictment with conspiracy to commit a crime ( 182, subd. (a)(1)) (count 1), with the alleged overt acts relating to accessing key codes for GM automobiles and then stealing and VIN-switching those automobiles. In addition to conspiracy, DeJesus was charged with two counts of attempted grand theft auto ( 664/487, subd. (d)(1)) relating to the attempts to steal Gutierrezs Avalanche (count 6) and Villars Tahoe (count 7), and one count each of grand theft auto ( 487, subd. (d)(1)) (count 14) and unlawful VIN activity (Veh. Code, 10802) (count 15) with respect to Robless Escalade. Mejia was charged with receiving stolen property ( 496d, subd. (a)) (count 2) and unlawful VIN activity (Veh. Code, 10802) (count 3) with respect to Maricela Browns stolen Avalanche. Hernandez was charged with one count of unlawful VIN activity (Veh. Code, 10802) with respect to Avinas pickup (count 13), and one count of receiving stolen property ( 496d, subd. (a)) with respect to Gilcreases pickup (count 18). The indictment also specially alleged that DeJesus had one prior felony vehicle theft conviction ( 666.5, subd. (a)), and that the value of the property stolen pursuant to the conspiracy charged in count 1 exceeded $100,000 ( 1203.045, subd. (a)).

The case proceeded to trial against six of the eleven people named as coconspirators in the indictment, including defendants. At the close of the Peoples case in chief, the trial court granted defendants motion to dismiss the section 1203.045 allegation. The jury was unable to reach a verdict on count 18, charging Hernandez with receiving Gilcreases stolen pickup. The trial court declared a mistrial as to that count and, on the Peoples motion, dismissed the charge.[5] On all other counts, defendants were convicted as charged.

DeJesus admitted his prior vehicle theft conviction. The trial court sentenced DeJesus to state prison for five years and eight months, consisting of the upper term of four years on count 14 as the base term, plus consecutive terms of eight months each on counts 1 and 15 and two months each on counts 6 and 7. The trial court also imposed a $10,000 restitution fine; a $10,000 parole revocation restitution fine, stayed; and a $20.00 court security fee. DeJesus was given 494 days of presentence credit, consisting of 334 days of actual custody and 160 days of conduct credit.

The trial court sentenced Mejia to state prison for three years and eight months, consisting of the upper term of three years on count 3 as the base term and a consecutive term of eight months on count 1. Mejias sentence on count 2 was stayed pursuant to section 654. The trial court also imposed a $25,000 restitution fine; a parole revocation restitution fine in the same amount, stayed; and a $20 court security fee. Mejia was given 517 days of presentence credit, consisting of 354 days of actual custody and 172 days of conduct credit.

The trial court sentenced Hernandez to state prison for three years and eight months, consisting of the upper term of three years on count 13 as the base term and a consecutive term of eight months on count 1. The trial court also imposed a $25,000 restitution fine; a parole revocation restitution fine in the same amount, stayed; and a $20 court security fee. Hernandez was given 62 days of presentence credit, consisting of 42 days of actual custody and 20 days of conduct credit. Defendants timely appealed.

DISCUSSION

A. Mejias Evidentiary ArgumentUncharged Offense

(Churchills Stolen Ford Pickup)

1. Relevant Background

The People sought to introduce evidence at trial that, when Mejia was detained and searched after a traffic stop, he was in possession of a non-factory key that was later used to start Scott Churchills stolen Ford F-250 pickup. The pickup was discovered by police in the parking lot of the Wilshire Inn, a location where Mejia was observed.[6] The theft of Churchills pickup was not charged in the indictment.

Before trial commenced, counsel for Mejia objected to evidence relating to the pickup because there was no foundation that the Ford had been stolen other than a hearsay basis. The prosecutor explained that the evidence was relevant to rebut Mejias potential defense that he did not know that Maricela Browns green Avalanchewhich police had seen Mejia drivingwas stolen. The trial court observed that the evidence was relevant to Mejias knowledge in that it certainly show [sic] he would have some knowledge aspect if hes associated with a stolen car and he has got a key to it, the stolen car, at a time when hes alleged to be a member of a conspiracy involving the wrongfully obtaining of keys for General Motors cars. The trial court overruled the objection.

During trial, the prosecutor informed counsel for Mejia that the People would call the owner of the stolen Ford pickup, Scott Churchill, to testify. Defense counsel objected on the ground that evidence relating to the Ford was improper character evidence under Evidence Code section 1101, subdivision (a), and that the evidence was more prejudicial than probative under Evidence Code section 352.[7] The prosecutor argued that the evidence was relevant to Mejias intent. Defense counsel stated that, although the evidence would be proper rebuttal evidence, Mejia did not anticipate putting on a defense, and the evidence was not proper to show plan, intent or knowledge under Evidence Code section 1101, subdivision (b).

The trial court overruled the objection. The trial court stated, Given the nature of this case and the possible issue of your clients knowledge of whether or not he was involved with stolen vehicle activity I think its very close to what was going on. The fact that it is a Ford and not a Chevy is something that he can argue to the jury as to whether or not it has weight. [] I think the fact that your client had a key that fit a stolen truck on his person at the time of his arrest is highly incriminating evidence and something the jury should hear.

2. Standard of Review and Applicable Principles

We review for abuse of discretion the trial courts rulings under Evidence Code sections 1101 and 352. (People v. Rogers (2006) 39 Cal.4th 826, 862-863.) Under Evidence Code section 1101, subdivision (a),[8]evidence of a criminal defendants uncharged crimes or other bad acts is inadmissible solely to prove that the defendant had a predisposition to commit the crime charged. (People v. Rogers, supra, 39 Cal.4th at p. 862; People v. Malone (1988) 47 Cal.3d 1, 17.) Evidence Code section 1101, subdivision (b), however, provides that such evidence may be admissible to prove another issue in the case, such as the defendants intent or guilty knowledge. (People v. Rogers, supra, 39 Cal.4th at p. 862; People v. Malone, supra, 47 Cal.3d at pp. 17-18.) [T]o to be admissible, evidence of other crimes must be relevant to some material fact in issue, must have a tendency to prove that fact, and must not contravene other policies limiting admission, such as Evidence Code section 352. (People v. Malone, supra, 47 Cal.3d at p. 18; see generally, 2 Jeffersons California Evidence Benchbook (2008) 33.21, pp. 742-743.)

When a defendants criminal intent is disputed, a sufficiently similar prior act is admissible to show that the defendant acted with the requisite intent. The least degree of similarity between the crimes is needed to prove intent. [Citation.] [T]he doctrine of chances teaches that the more often one does something, the more likely that something was intended, and even premeditated, rather than accidental or spontaneous. (People v. Steele (2002) 27 Cal. 4th 1230, 1244.) Evidence of prior acts also may be admissible to show guilty knowledge, including a defendants knowledge of the stolen character of property to prove a charge of receiving stolen property. (People v. Picl (1981) 114 Cal.App.3d 824, 856, disapproved on another ground in People v. Kimble (1988) 44 Cal.3d 480, 496, fn. 12; People v. Harris (1977) 71 Cal.App.3d 959, 964-965.)

Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) [A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendants case. The stronger the evidence, the more it is prejudicial. The prejudice referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, prejudicial is not synonymous with damaging. [Citation.] (People v. Karis (1988) 46 Cal.3d 612, 638.) Evidence is prejudicial within the meaning of Evidence Code section 352 if it encourages the jury to prejudge defendants case based upon extraneous or irrelevant considerations. (People v. Rogers, supra, 39 Cal.4th at p. 863.)

3. The Trial Court Did Not Abuse Its Discretion

Mejia argues that the evidence relating to Churchills stolen Ford F-250 did not fall within the scope of Evidence Code section 1101, subdivision (b) because there was no logical nexus between the stolen Ford and Mejias knowledge of or agreement to join the conspiracy charged in the indictment. The primary relevance of the evidence, however, was not necessarily to prove the conspiracy charge, but to prove the crime of receiving stolen property charged in count 2.

Count 2 charged Mejia with receiving Maricela Browns stolen Avalanche in violation of section 496d, subdivision (a).[9] To convict Mejia of that charge, the People were required to prove that Mejia knew Browns Avalanche to be stolen or obtained [in a manner constituting theft or extortion] . . . . ( 496d, subd. (a).) Although receiving stolen property has been characterized as a general intent crime, the second element of the offense is knowledge that the property was stolen, which is a specific mental state. (People v. Russell (2006) 144 Cal.App.4th 1415, 1425.) In his argument to the jury, Mejias attorney expressly challenged the Peoples evidence on the knowledge element. Counsel argued, Thats thethe receiving stolen property. So they are missing the element. Theyre missing that he [Mejia] knew it [the Avalanche] was stolen. [] He may have gotten a ride from [alleged coconspirator] Alas. He [Mejia] picked up the vehicle and drove, drove to Alameda Street. And thats it. Doesnt show that he knew the vehicle was stolen. Accordingly, whether Mejia knew that the Avalanche was stolen was a material issue in the case.

The question of whether a defendant had actual knowledge [that property was stolen] is a question of fact to be determined by the fact finder. Since direct evidence of the defendants knowledge is rarely available, the knowledge element is routinely proved by circumstantial evidence. (Levenson & Ricciardulli, California Criminal Law (2008-2009 ed.) 8:39, p. 503.) Mejias constructive possession of another stolen vehicle at or near the time that he drove Browns Avalanche was circumstantial evidence that tended to prove that he knew the Avalanche was stolen. It is settled that [p]ossession of recently stolen property itself raises a strong inference that the possessor knew the property was stolen . . . . (People v. ODell (2007) 153 Cal.App.4th 1569, 1574.) Similarly, a defendants possession of other stolen property similar to the property at issue in the case gives rise to a reasonable inference that the defendant knew of the stolen character of the property at issue. (See People v. Harris, supra, 71 Cal.App.3d at pp. 964-965.) [I]f a person acts similarly in similar situations, he probably harbors the same intent in each instance [citations], and . . . such prior conduct may be relevant circumstantial evidence of the actors most recent intent. The inference to be drawn is not that the actor is disposed to commit such acts; instead, the inference to be drawn is that, in light of the first event, the actor, at the time of the second event, must have had the intent attributed to him by the prosecution. [Citations.] [Citation.] (People v. Miller (2000) 81 Cal.App.4th 1427, 1448.) As noted above, the doctrine of chances teaches that the more often one does something, the more likely that something was intended, and even premeditated, rather than accidental or spontaneous. (People v. Steele, supra, 27 Cal. 4th at p. 1244.) Just as with the element of intent, the possession of recently stolen property can be relevant to the element of knowledge. The evidence thus was probative of Mejias knowledge that Browns Avalanche was stolen, and fell within the scope of evidence permitted under Evidence Code section 1101, subdivision (b).

The trial court also did not abuse its discretion in admitting the evidence over Mejias Evidence Code section 352 objection. As noted above, section 352 protects against evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, prejudicial is not synonymous with damaging. [Citation.] (People v. Karis, supra, 46 Cal.3d at p. 638.) The evidence relating to the stolen Ford pickup was relevant and probative on the issue of Mejias knowledgean issue on which, as Mejias attorney argued to the jury, there was little other evidence. In contrast, the testimony and other evidence relating to the Ford was not inflammatory and had very little potential to evoke an emotional bias against Mejia, and there is no indication in the record that it had such an effect. The trial court could properly conclude that the potential for prejudice was outweighed by the probative value of the evidence.

B. Sufficiency of the Evidence

1. Standard of Review

In reviewing a criminal conviction challenged as lacking evidentiary support, the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidencethat is, evidence which is reasonable, credible, and of solid valuesuch that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Hillhouse (2002) 27 Cal.4th 469, 496, quoting People v. Johnson (1980) 26 Cal.3d 557, 578.) We presume[] in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) Although it is the jurys duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court, that must be convinced of the defendants guilt beyond a reasonable doubt. (Id. at pp. 1053-1054.)

2. DeJesusCount 6Attempted Grand Theft

DeJesus argues that his conviction for attempted grand theft in count 6[10]was not supported by substantial evidence. Count 6 related to the attempt in April 2006 to steal Omar Gutierrezs Chevy Avalanche from Gutierrezs home on Lyle Avenue in Whittier. (See Background, Parts A.3.a and B.1, ante.) DeJesus argues that (1) none of the police officers identified DeJesus as the driver of the purple Honda at the time of the incident at Gutierrezs house; and (2) the testimony of Detective Romine, who observed the incident, and Detective Carnakis, who wrote the report concerning the incident, was conflicting with respect to whether the alleged thief got into Gutierrezs Avalanche or merely stood beside it.

[An] attempt consists of (1) a specific intent to commit a crime and (2) a direct but ineffectual act done toward its commission. [Citations.] [] Theft is the felonious taking, carrying, or driving away of the personal property of another; the crime is grand theft auto when the property taken is an automobile and it is taken with the specific intent to permanently deprive the owner of her property. [Citations.] Accordingly, attempted grand theft auto is a direct but ineffectual act toward the taking or driving away of an automobile with the specific intent to permanently deprive the victim of possession of [the] car. (People v. Marquez (2007) 152 Cal.App.4th 1064, 1067; see 21a, 484, 487.)

There was substantial evidence identifying DeJesus as the driver of the purple Honda. Approximately two hours before the attempt to steal Gutierrezs Avalanche, CHP Investigator Maletta and Detective Romine saw the purple Honda in the vicinity of Gutierrezs and Villars homes in Whittier, traveling a route consistent with the route from Gutierrezs house on Lyle Avenue to Villars home on Adele Avenue. The officers saw the Honda turn onto Adele Avenue. Both officers identified DeJesus as the driver of the Honda. Detective Romine testified that there were two people inside the Honda. Two hours later, Detective Romine saw two men in the same Honda, one of which got out of the car and approached Gutierrezs Avalanche. That man was not DeJesus. Shortly thereafter, Detective Carnakis saw two men in the purple Honda arrive at Villars house on Adele Avenue. One of the men got out of the car and attempted to steal Villars Tahoe. A reasonable jury could infer from this sequence of events that DeJesus was driving the Honda at the time of the attempted thefts. Furthermore, the jury heard evidence that in March 2006, in nearly identical circumstances, DeJesus had played a similar rolethat is, as driver of the transport vehiclein connection with the theft of Robless Escalade. There was thus substantial evidence identifying DeJesus as the driver of the purple Honda at the relevant time.

There also was substantial evidence of the attempted theft. Detective Romine testified that the passenger of the Honda got out, approached Gutierrezs Avalanche in the driveway and entered that vehicle. Detective Romine believed the drivers side door had opened because the dome light turned on in the cab. The man sat in the Avalanche for a brief period of time, then went to speak to the person driving the Honda. He went back to the Avalanche, appeared to get in it, then again left the Avalanche to speak to the driver of the Honda. The man then returned to the vehicle one more time before again returning to the Honda and driving away. Detective Romine testified that the man [d]efinitely [got in] the drivers side. On cross-examination, defense counsel asked Detective Romine, What you saw is [the man] open the door and get inside the vehicle and the light go on, correct? Detective Romine answered unequivocally, Correct. Detective Romines testimonyparticularly when coupled with evidence that DeJesus and his passenger had reconnoitered the area earlier, and minutes thereafter attempted to steal Villars Tahoeconstituted substantial evidence of the attempted theft of Gutierrezs Avalanche.

DeJesus points out that the report of Detective Romines observations authored by Detective Carnakis reported that the suspect had walked up to the drivers side of the vehicle three times, but did not state that the suspect had entered the vehicle. The reported stated that the suspect might have been concerned that the lights were on in Gutierrezs garage, and that it is also possible that the key the suspect had did not work in the door. Detective Carnakis testified that, when he discussed the incident with Detective Romine, Detective Romine believed that [the suspect] did not get into the car.

The inconsistencies between the testimony of Detective Romine and the police report, however, do not establish as a matter of law that the evidence was insufficient. The jury was entitled to credit Detective Romines testimony over the purported inconsistent statements in the report. Detective Romine testified concerning his direct recollection, whereas the statements in the report were Detective Carnakiss hearsay account of Detective Romines observation. Detective Romine testified that he did not recall telling Detective Carnakis that the suspects key did not work in the door of the Avalanche, and that when he testified that the man had gotten into the car he was testifying to what [he] saw. Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] [An appellate court] resolve[s] neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.] (People v. Maury (2003) 30 Cal.4th 342, 403; accord, People v. Hovarter (2008) 44 Cal.4th 983, 1016.) A reasonable jury could have concluded that any inconsistent statements in the report resulted from a miscommunication or misunderstanding between Detectives Romine and Carnakis, or that Detective Romines account of what occurred was the more credible of the two.

Moreover, as an alternative basis for affirming DeJesus conviction on count 6, DeJesus cites no authority holding that, to prove an attempted auto theft, the People must prove that the prospective thief actually entered the target vehicle. As noted above, section 27a requires only proof of the defendants intent to commit the target crime and a direct but ineffectual act toward committing that crime. (People v. Marquez, supra, 152 Cal.App.4th at p. 1067.) Commission of an element of the crime is not required. (People v. Medina(2007) 41 Cal.4th 685, 694.) The overt act need only show that the perpetrator is putting his or her plan into action; it need not be the last proximate or ultimate step toward commission of the crime or crimes. (People v. Superior Court (Decker) (2007) 41 Cal.4th 1, 8; People v. Tillotson (2007) 157 Cal.App.4th 517, 535.) When intent is clearly shown, slight acts in furtherance of the design will constitute an attempt (People v. Superior Court, supra, 41 Cal.4th at p. 8), even though the same act would not suffice if intent was not as clearly shown. (People v. Anzalone (2006) 141 Cal.App.4th 380, 387.)

In this case, there was substantial circumstantial evidence that DeJesus and his unknown accomplice intended to steal Gutierrezs Avalanche, both from the events of the night in questionincluding evidence of their reconnaissance of the scene earlier in the evening and their subsequent attempt to steal Villars Tahoeand from the similarity between the attempted theft of Gutierrezs Avalanche and other crimes connected to the overall conspiracy. Even if we were to assume, contrary to the testimony of Detective Romine, that DeJesus accomplice did not get into the Avalanche, his attempt to do so was a sufficient direct act toward committing the theft, even if that attempt was ineffectual. Substantial evidence thus supported DeJesus conviction on count 6.

3. MejiaCount 1Conspiracy

Mejia argues that the evidence was insufficient to sustain his conviction on the conspiracy charged in count 1. To prove a conspiracy, the People must present evidence that the defendant and another person had the specific intent to agree or conspire to commit an offense, as well as the specific intent to commit the elements of that offense, together with proof of the commission of an overt act by one or more of the parties to such agreement in furtherance of the conspiracy. [Citations.] (People v. Jurado (2006) 38 Cal.4th 72, 120; People v. Bogan (2007) 152 Cal.App.4th 1070, 1074; see 182, subd. (a)(1); 184; see also People v. Vu (2006) 143 Cal.App.4th 1009, 1024 [elements of conspiracy are (1) an agreement between two or more people, (2) who have the specific intent to agree or conspire to commit an offense, (3) the specific intent to commit that offense, and (4) an overt act committed by one or more of the parties to the agreement for the purpose of carrying out the object of the conspiracy]; 1 Witkin, California Criminal Law (3d ed. 2000), Elements, 68, p. 277.) These facts may be established through circumstantial evidence (People v. Longines (1995) 34 Cal.App.4th 621, 626), and they may be inferred from the conduct, relationship, interests, and activities of the alleged conspirators before and during the alleged conspiracy. [Citations.] (People v. Rodrigues, supra, 8 Cal.4th at p. 1135.) The conspiracy must be inferred by the trier of fact from all the circumstances that are proven, and if the inference is a reasonable one it will not be disturbed on appeal. (People v. Chavez (1962) 208 Cal.App.2d 248, 253.) While mere association cannot establish a conspiracy, [w]here there is some evidence of participation or interest in the commission of the offense, it, when taken with evidence of association, may support an inference of a conspiracy to commit the offense. [Citation.] (People v. Prevost (1998) 60 Cal.App.4th 1382, 1400.)

Mejia does not challenge the sufficiency of the evidence establishing the existence of the conspiracy, and the record contains ample evidence of such a conspiracy. Instead, Mejia argues that the evidence shows that he was not involved in the events alleged in the indictment until May 30, 2006, when he was picked up by Victor Alas at the Wilshire Inn and later drove Maricela Browns green Avalanche. This, Mejia contends, was near the end of the conspiracy, which allegedly ended on June 20, 2006, and after the overt acts alleged in the indictment, which occurred between May 2 and May 9, 2006. Mejia asserts that there was thus no evidence that he knowingly joined this ongoing conspiracy. We disagree.

To be liable as a conspirator, a defendant need not be one of the original conspirators (In re Nathaniel C. (1991) 228 Cal.App.3d 990, 1000; see Levenson & Ricciardulli, supra, 12:5, pp. 759-760), nor need he know the scope of the conspiracy (People v. Means (1960) 179 Cal.App.2d 72, 80) or the identity of all the other conspirators. (People v. Van Eyk (1961) 56 Cal.2d 471, 479.) The crime of conspiracy can be committed whether the conspirators acted together or in separate groups, or whether they used the same or different means known or unknown to some of them, but leading to the same unlawful result. (People v. Cooks (1983) 141 Cal.App.3d 224, 312; People v. Olf (1961) 195 Cal.App.2d 97, 105; People v. Brown (1960) 184 Cal.App.2d 588, 597.) One who associates with a preexisting conspiracy with knowledge of the conspiracy and who performs overt acts in furtherance of the conspiracys unlawful purpose is liable as a conspirator. (In re Nathaniel C., supra, 228 Cal.App.3d at p. 1000; accord, People v. Cornell (1961) 188 Cal.App.2d 668, 675.) Accordingly, it is of no importance that Mejia might have become involved in the conspiracy only shortly before it ended if there was sufficient evidence that he agreed to the conspiracys unlawful purpose.

To prove Mejias agreement, it was not necessary to establish the parties met and expressly agreed; rather, a criminal conspiracy may be shown by direct or circumstantial evidence that the parties positively or tacitly came to a mutual understanding to accomplish the act and unlawful design. [Citation.] (People v. Vu (2006) 143 Cal.App.4th 1009, 1025.) The agreement in a conspiracy may be shown by circumstantial evidence, including the conduct of the defendants in mutually carrying out an activity which constitutes a crime. (People v. Consuegra (1994) 26 Cal.App.4th 1726, 1734; accord, People v. Gonzalez (2004) 116 Cal.App.4th 1405, 1417; People v. Herrera (1999) 70 Cal.App.4th 1456, 1464.)

The evidence in this case was sufficient to permit a reasonable jury to infer that Mejia agreed to the conspiracys unlawful purpose. The evidence established that on May 30, 2006 Mejia was picked up from the Wilshire Inn by Victor Alas. Alas was driving a blue van registered to Hernandez, a conspirator. The blue van had been observed by police in connection with four other stolen vehicles and previously had been impounded by police from a location on West Howard Street where a stolen vehicle was being VIN switched.

Police observed Mejia ride with Alas into a neighborhood in central Los Angeles, from which Mejia emerged driving Maricela Browns stolen green Avalanche. The blue van and the green Avalanche appeared to be driving in concert, and stopped together at a gas station. This was consistent with the conspiracys method of operation, in which two men drove in one car to the location of a target vehicle to be stolen or of a previously stolen vehicle that had been parked and was to be moved. One man then drove the stolen vehicle to a new location while the other man followed.

Police followed the Avalanche to an auto glass shop on Alameda. The blue van was seen nearby. When the Avalanche emerged from the auto glass shop after approximately 45 minutes, its license plates, windshield and VIN plate had been replaced. The next day, Mejia was detained by police. He was in possession of tools that could be used to remove dashboard VIN plates. One of the drill bits in Mejias possession had pieces of metal stuck to it that proved to be rosette rivets, which are used to affix VIN plates to the dashboard of GM vehicles. Based on the foregoing evidence, a reasonable jury could conclude that Mejia joined an ongoing conspiracy to steal and VIN switch GM vehicles by, in concert with Alas, driving a stolen Avalanche to a location where its VIN and license plates were changed.

Mejia argues that, although there was evidence that Mejia was driving Maricela Browns Avalanche in the vicinity of Washington and Arlington, there is no evidence that he drove it to the auto glass shop on Alameda because none of the officers testified to seeing him there. Officer Michelson testified, however, that he saw Mejia driving the Avalanche after it left the gas station, after which the Avalanche got on the eastbound 10 freeway. Both Officer Michelson and Detective Molina followed the Avalanche on the freeway to the glass shop on Alameda. A reasonable jury could infer that Mejia drove the vehicle to the glass shop. There was sufficient evidence supporting Mejias conspiracy conviction.

4. HernandezCounts 1 and 13

Hernandez argues that the evidence was insufficient to support his convictions on count 1 for conspiracy and count 13 for unlawful VIN activity. Hernandez was identified by Officer Michelson as one of three men that Officer Michelson observed VIN switching a white Chevy Crew Cab pickup truck at a house on Navarro Avenue in Pasadena on April 13, 2006. Hernandez argues that Officer Michelsons identification was unreliable because Officer Michelson observed Hernandez from 45 feet away through the slats of a wooden fence; Officer Michelson had not seen Hernandez prior to that time, and he initially identified Hernandez sometime later when shown a single photograph of Hernandez by Detective Starbird; and Officer Michelson had misidentified Mario Hernandez as his brother Hector Hernandez in grand jury testimony, which Hernandez argues demonstrated that Officer Michelson had difficulty with cross racial identification.

The points raised by Hernandez were valid points for cross examination of Officer Michelson and for argument to the jury, and defense counsel for Hernandez used both means to question Officer Michelsons identification at trial. They do not establish as a matter of law, however, that Officer Michelsons identification was so inherently incredible, so contrary to the teachings of basic human experience, so completely at odds with ordinary common sense, that no reasonable person would believe it beyond a reasonable doubt. [Citation.] (People v. Hovarter, supra, 44 Cal.4th at p. 996.) As the California Supreme Court recently explained, At trial, it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] On appeal, an appellate court deciding whether sufficient evidence supports a verdict must determine whether the record contains substantial evidencewhich we repeatedly have described as evidence that is reasonable, credible, and of solid valuefrom which a reasonable jury could find the accused guilty beyond a reasonable doubt. [Citation.] In evaluating the sufficiency of evidence, the relevant question on appeal is not whether we are convinced beyond a reasonable doubt [citation], but whether any rational trier of fact could have been so persuaded. [Citation.] (Id. at pp. 996-997.)

A rational trier of fact could have found Officer Michelsons identification of Hernandez credible. Officer Michelson related in detail the sequence of events that occurred in the yard on Navarro Avenue; he recalled the specific addr