P. v. Mobley

 

 

 

 

 

 

 

Filed 6/20/13  P. v. Mobley CA2/8

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>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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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  This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
EIGHT

 

 
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THE PEOPLE,               Plaintiff and Respondent,               v.   IVERY LEE MOBLEY,               Defendant and Appellant.

B240957         (Los Angeles County       Super. Ct. No. LA067725)

 

 

APPEAL from a judgment of the Superior
Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, Martin L. Herscovitz, Judge.  Affirmed.

 

            Heather J.
Manolakas, under appointment by the Court of Appeal, for Defendant and
Appellant.

 

            Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, James William Bilderback II and
Stephanie C. Santoro, Deputy Attorneys General, for Plaintiff and Respondent.

 

* * * * * *

 

Ivery Lee Mobley
appeals his conviction and sentence for one count of href="http://www.fearnotlaw.com/">unlawful driving or taking of a vehicle
with a prior plus enhancements.  He
contends the trial court improperly admitted evidence of a prior conviction and
improperly instructed the jury on the elements of the crime.  He also argues the trial court abused its
discretion in imposing an upper term for his sentence.  We affirm.

PROCEDURAL BACKGROUND

On August 24, 2011,
appellant was charged with one count of unlawful driving or taking a vehicle
with a prior, in violation of Penal Code section 666.5.  As part of count 1, the information alleged
appellant had three prior convictions:  a
1998 conviction for violating Vehicle Code section 10851 (the 1998 conviction);
and two 2004 convictions, one for violating Penal Code section 487, subdivision
(d) and another one for violating Vehicle Code section 10851 (the 2004
convictions).  The information also
alleged that, for the purposes of Penal Code sections 667.5, subdivision (b), and
1203, subdivision (e)(4), appellant suffered six prior convictions, including
the three listed in count 1.  Appellant
pleaded not guilty and denied the allegations.

The trial court
bifurcated the priors from count 1 and ruled count 1 would be presented to the
jury as a violation of Vehicle Code section 10851, subdivision (a).href="#_ftn1" name="_ftnref1" title="">^[1]  The jury found him guilty.  Appellant waived his right to a jury on his
priors.  The court found the prior 1998
conviction and 2004 convictions to be true under count 1 and found appellant
had suffered four of the six prior convictions for purposes of Penal Code
sections 667.5, subdivision (b), and 1203, subdivision (e)(4).  The court imposed an eight-year
sentence:  an upper term of four years
for count 1, plus four consecutive one-year terms for each prior prison term allegation
found true.  The court ordered appellant
to serve seven years in county jail and one year of supervised probation.  The court also imposed restitution, and
various fines, fees, and custody and conduct credits not at issue in this
appeal.  Appellant timely appealed.

>STATEMENT OF FACTS

On March 3, 2011,
appellant rented a 2001 Chevrolet Cavalier from Domestic Auto Rentals
(Domestic) in Reseda, California.  Levon
Sukiassyan, a car rental agent at Domestic, handled the transaction.  Appellant signed a rental contract and
provided Sukiassyan with a copy of his driver’s license, a $100 credit card
payment, and a $120 credit card deposit. 
He gave three phone numbers, listed his address at 5921 Whitsett Avenue,
No. 106, in North Hollywood, and indicated his employer was “Dress Out
Store.”  He provided proof of a
nonowner’s automobile insurance policy from Farmer’s Insurance and a copy of a
bill showing his current home address on Whitsett, which was different from the
address on his driver’s license.  Appellant
was supposed to return the car after one week, on March 10.

Appellant returned
to Domestic on March 10 to extend the rental another week to
March 17.  At that time he paid $50
in cash, and because his credit card was declined, he authorized Sukiassyan to
pay the rest of the next week’s rental from his deposit, which brought his
balance due down to $16.50, to be paid on March 17.href="#_ftn2" name="_ftnref2" title="">^[2]  Appellant did not return on March 17 to
pay the amount due.

After March 17,
Sukiassyan called appellant at the cell phone and work numbers listed on the
rental contract, but could not reach him. 
Between March 18 and March 24, Sukiassyan left a message on
appellant’s cell phone telling him that the car was due to be returned and he
would have to pay to keep the car longer. 
Appellant called Domestic on March 24, telling Sukiassyan he was
ill, but he would come to Domestic’s office later that day to pay.  He never appeared or contacted Domestic again
and never paid the amount due on the rental.

On March 25,
Domestic sent a demand letter to appellant’s Whitsett address via certified
mail, stating that the rental payment was overdue and Domestic would take
“legal steps to get the car and the payment” if appellant did not visit
Domestic’s office as soon as possible; the letter was returned to sender as
“[u]nclaimed” and “[u]nable to forward.” 
On March 30, Sukiassyan called appellant’s work phone number and
spoke to a woman named Amanda, who told him appellant was not there, but gave
him the address of the Dress Out Store, appellant’s workplace.  He called appellant’s work number again on
March 31 and again was unable to reach appellant.  On April 6, Sukiassyan and the owner of
Domestic went to appellant’s home address on Whitsett, and spoke to a woman
there who was moving out and said she did not know appellant.  On the same day, they also went to the
address for the Dress Out Store, but did not locate the store or the suite
where the store was supposed to be located. 
Sukiassyan found another address online for a Dress Out Store in Van
Nuys, with appellant’s name listed as “company contact,” but when Sukiassyan
visited that address, he found a business called “A.Z.Z. Mailbox.”

On April 26,
Sukiassyan filed an embezzled vehicle report with the police.  The next day, appellant was arrested at a
motel, where the rental car was found; it was returned to Domestic from the
impound yard.  Sukiassyan testified that,
during the 40 days appellant kept the car after March 17 until it was
recovered on April 27, appellant did not have permission to drive, take,
or use the car and did not pay any money for the rental.

During Detective
Alison Alexander’s investigation of the case, she was provided with a copy of
appellant’s driver’s license and visited the Van Nuys address listed on it
(which was the same as the Van Nuys address for the Dress Out Store Sukiassyan
found online), but found a mailbox rental business there.  She also searched online for “Dress Out
Store, Van Nuys,” and found the same address she had already visited.

The prosecutor
called Paul Castillo, who at the time of trial worked at a car rental business
called Vista Ford and did so in 1997 when appellant rented a vehicle and did
not return it, resulting in his 1998 conviction.  Although Castillo did not remember details of
the incident, upon reviewing his testimony in the case leading to the 1998
conviction, he recalled appellant signed a rental agreement to rent a 1996
Windstar from Vista Ford on January 23, 1997.  Appellant provided his driver’s license and a
credit card.  Appellant rented the
vehicle for a week, but at the end of that time he did not return it.  Castillo sent him a letter via certified mail
stating that he had to return the vehicle within 24 hours, but appellant never
returned it.  Vista Ford eventually
received the car back from impound.

Appellant did not
testify.  In his case-in-chief, he called
only Detective Alexander as a witness, who testified to her actions to
investigate the embezzled vehicle report filed by Sukiassyan.

DISCUSSION

>1.  The Trial Court Did Not Abuse Its Discretion
in Admitting Evidence of Appellant’s 1998 Conviction, and If So, Any Error Was
Harmless

Appellant contends
that the trial court abused its discretion by admitting evidence of his 1998
conviction because it was only minimally probative of his intent in the current
case and the risk of undue prejudice outweighed its probative value.  We disagree.

>A. 
Factual Background

Appellant’s 1998
conviction was based upon a violation of Vehicle Code section 10851 for his
unlawful driving or taking of a vehicle without owner consent from Vista Ford
in 1997.  Before trial, the prosecution
moved to admit evidence of this conviction pursuant to Evidence Code section
1101, subdivision (b), arguing that it was relevant to intent and absence of
mistake by appellant or the rental car company. 
Appellant objected, arguing that the motion was untimely; the evidence
was not being offered to show intent, but disposition; the prior incident was
remote; and the incident was more prejudicial than probative.

The court granted
the motion, finding the evidence relevant and admissible under Evidence Code
sections 1101, subdivision (b), and 352. 
The court explained intent was central to the case but “difficult to
prove” in a case involving “an excess taking of a rent-a-car,” and the prior
and current incidents were “virtually identical,” that is, “the taking of a
rental car following the rental of that car by the defendant.”  The court noted the issue was the age of the
prior incident, but explained that “the passage of time works in the
defendant’s favor because it could be argued that since the other case was so
old, it should have less relevance and, therefore, less prejudice to him.”  Under Evidence Code section 352, the court noted
that, while the prior incident might be unduly prejudicial because it was
identical to the current offense, that factor was counterbalanced by the age of
the incident, the fact that it resulted in a conviction “so the jury wouldn’t
think that it’s punishing a defendant for . . . 1997 or ’98 conduct
in 2012,” and the fact that it was not highly prejudicial conduct like violence
or child molestation.

The issue arose
again just before trial.  At that point,
the court indicated it would allow evidence of the prior conduct, but not the
prior conviction.  Later, the court
admitted a certified copy of appellant’s prior conviction under Evidence Code
section 452.5 (permitting introduction of certified records of convictions),
but redacting references to appellant’s priors and prison sentence.  Defense counsel strenuously objected, arguing
the fact of the conviction would be unduly prejudicial and offering to
stipulate to the underlying facts to avoid admission of the conviction
itself.  The court was unmoved:  “I don’t think just another rental clerk coming
in and saying that the defendant kept a rental vehicle overdue is necessarily
sufficient to put the defendant on notice, dealing with his state of mind, that
it’s unlawful activity.  Therefore, the
People would be prejudiced if I were to keep out, under what’s otherwise
admissible under 452.5 of the Evidence Code, a certified copy, which [the
prosecutor] supplied the court, of the defendant’s conviction.”  In response, defense counsel argued the court
was changing the purpose of the conviction from intent to appellant’s knowledge
of criminality, which was a new theory raised for the first time during
trial.  Defense counsel also emphasized
that appellant would stipulate to the underlying conduct.  The court rejected the argument and affirmed
its ruling.

The court instructed
the jury that, if it found the prosecutor proved by a preponderance of the
evidence appellant committed the 1998 conviction, “you may, but are not
required to, consider that evidence for the limited purpose of deciding whether
or not the defendant acted with the intent to take or drive the car without
permission or the defendant had a plan or scheme to commit the offense alleged
in this case.  [¶]  In evaluating this evidence, consider the
similarity or lack of similarity between the uncharged offense and the charged
offense.  Do not consider this evidence
for any other purpose.  Do not conclude
from this evidence that the defendant had a bad character or is disposed to
commit crime.  [¶]  If you conclude that the defendant committed
the uncharged offense, that conclusion is only one factor to consider along
with all the other evidence.  It is not
sufficient by itself to prove that the defendant is guilty of the charged
crime.  The People must still prove the
charge beyond a reasonable doubt.”

>B. 
Analysis

Evidence Code
section 1101, subdivision (b) permits the introduction of evidence “that a
person committed a crime, civil wrong, or other act when relevant to prove some
fact (such as motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake or accident, or whether a defendant in a
prosecution for an unlawful sexual act or attempted unlawful sexual act did not
reasonably and in good faith believe that the victim consented) other than his
or her disposition to commit such an act.”

“When reviewing the
admission of evidence of other offenses, a court must consider:  (1) the materiality of the fact to be proved
or disproved, (2) the probative value of the other crime evidence to prove or
disprove the fact, and (3) the existence of any rule or policy requiring
exclusion even if the evidence is relevant.” 
(People v. Daniels (1991) 52
Cal.3d 815, 856.)  “‘To be admissible to
show intent, “the prior conduct and the charged offense need only be
sufficiently similar to support the inference that defendant probably harbored
the same intent in each instance.”’ 
[Citations.]”  (>People v. Davis (2009) 46 Cal.4th 539,
602 (Davis).)

“Because evidence of
other crimes may be highly inflammatory, the admission of such evidence ‘“‘must
not contravene other policies limiting admission, such as those contained in
Evidence Code section 352.^[href="#_ftn3" name="_ftnref3" title="">^[3]]’”’”  (Davis,
supra, 46 Cal.4th at p. 602.)  Under Evidence Code section 352, “the
probative value of a defendant’s prior acts must not be substantially
outweighed by the probability that its admission would create substantial
danger of undue prejudice, of confusing the issues, or of misleading the
jury.”  (Ibid.; see also People v.
Ewoldt (1994) 7 Cal.4th 380, 404 (Ewoldt).)  We review the trial court’s rulings under
Evidence Code sections 1101 and 352 for abuse of discretion.  (Davis,
supra, at p. 602.)

The trial court
properly found the 1998 conviction and underlying facts were highly probative
of appellant’s intent, a material fact in this case.href="#_ftn4" name="_ftnref4" title="">^[4]  There is no question appellant’s intent was
material because, to show a violation of Vehicle Code section 10851,
subdivision (a), the prosecutor bore the burden to prove appellant “drove or
took a vehicle belonging to another person, without the owner’s consent, and
that [appellant] had the specific intent to permanently or temporarily deprive
the owner of title or possession.”  (>People v. O’Dell (2007) 153 Cal.App.4th
1569, 1577 (O’Dell).)  The 1998 conviction was also highly probative
of his intent during the current incident because the surrounding facts were
strikingly similar.  On both occasions,
appellant went to a rental car business, rented a car for a short time, and
failed to return it at the end of that time; and both vehicles were later recovered
and impounded.  Although there were some
factual differences, such as that appellant renewed the rental in the current
case for a second week before keeping it beyond the rental period, the prior
conduct was “‘“sufficiently similar to support the inference that defendant
probably harbored the same intent in each instance.”’”  (Davis,
supra, 46 Cal.4th at p. 602.)href="#_ftn5" name="_ftnref5" title="">^[5]

Appellant’s
arguments to the contrary are unpersuasive. 
He argues the 1998 conviction was minimally probative because that
incident involved his intent when he first rented the car, and the prosecution
in this case needed only to prove his intent when he kept it beyond the rental
period.  Even if that were true, the 1998
conviction was still probative of appellant’s current intent because, under
Vehicle Code section 10851, subdivision (a), “specific intent to deprive the
owner of possession of his vehicle ‘“may be inferred from all the facts and
circumstances of the particular case.”’ 
[Citation.]”  (>O’Dell, supra, 153 Cal.App.4th at
p. 1577.)

He also contends
that evidence of the 1998 conviction was only minimally probative because it
was “cumulative regarding an issue that was not reasonably subject to
dispute.”  (Ewoldt, supra, 7 Cal.4th at p. 406; see also >People v. Leon (2008) 161 Cal.App.4th
149, 169 (Leon).)  We disagree; while the evidence of
appellant’s intent was strong, it was not so overwhelming that the 1998
conviction was merely cumulative on the issue. 
(People v. Foster (2010) 50
Cal.4th 1301, 1331 [uncharged conduct was not cumulative “because the balance
of the evidence does not render [the defendant’s] intent and actions beyond
dispute”]; People v. Lewis (2001) 25
Cal.4th 610, 637 (Lewis) [uncharged
conduct was not cumulative because “this is not a case in which the evidence relating
directly to the charged crimes was so compelling on the question of defendant’s
intent as to render the uncharged crimes evidence merely cumulative on the
issue”].)

Finally, we reject
his claim that proof of the conviction itself was cumulative of evidence of the
underlying conduct.  As the trial court
noted, without the conviction, the underlying conduct would have only proved
appellant failed to return a rental car, not that he intended to deprive
Domestic of ownership or possession of it.

Having found the
1998 conviction highly probative, the trial court did not abuse its discretion
in finding the probative value was not substantially outweighed by any risk of
unfair prejudice.  The 1998 conviction
did not involve unduly prejudicial conduct like violence or child
molestation.  Castillo’s testimony on the
facts underlying the 1998 conviction “was no stronger and no more inflammatory
than the testimony concerning the charged offenses.”  (Ewoldt,
supra, 7 Cal.4th at p. 405.) 
Because appellant’s prior conduct resulted in a conviction, there was
little risk the jury would confuse the issues by having to determine whether
appellant committed both the prior and current offenses or would consider
punishing appellant now to prevent him from escaping punishment for his prior
acts.  (Ibid.; People v. Tran
(2011) 51 Cal.4th 1040, 1050.)  The trial
court also carefully instructed the jury on the limited purpose of the 1998
conviction and redacted the abstract of judgment to eliminate references to
appellant’s priors and prison sentence. 
(Ewoldt, supra, at
p. 405; Lewis, supra, 25 Cal.4th
at p. 637.)

Even if the trial
court erred, the error was harmless because it was not reasonably probable the
jury would have reached a different verdict had the evidence been excluded.  (People
v. Watson (1956) 46 Cal.2d 818, 836; Leon,
supra, 161 Cal.App.4th at p. 169 [applying Watson to admission of uncharged offenses].)  Apart from the 1998 conviction, the evidence
of appellant’s intent was strong:  he
provided false contact information when he rented the car from Domestic; he did
not return the car at the end of his rental period on March 17 or after
Sukiassyan left him a message to return the car or pay the balance; he called
Domestic on March 24 and said he would come in and pay the balance, but
never appeared; he could not be reached after March 24; and he kept the
car and did not pay any outstanding fees until he was arrested and the car
impounded.  On this record, any error in
admitting the 1998 conviction was harmless.

>2.  The Trial Court’s Instruction on Vehicle Code
Section 10851 Was Not Erroneous, and If It Was, Any Error Was Harmless Beyond a
Reasonable Doubt

The trial court
instructed as follows on the elements of a violation of Vehicle Code section
10851, adapted from CALCRIM No. 1820:

“The defendant is
charged with unlawfully taking or driving a vehicle, in violation of Vehicle
Code section 10851.  To prove that the
defendant is guilty of this crime, the People must prove that, one, the
defendant took or drove someone else’s vehicle without the owner’s consent and,
two, when the defendant did so, he intended to deprive the owner of possession
or ownership of the vehicle for any period of time.

“Consent may be
limited in time or for a certain purpose. 
Even if you conclude that the owner had allowed the defendant or someone
else to take or drive the vehicle before, you may not conclude that the owner
consented to the driving or taking on or between March 18, 2011, and April 27,
2011, based on that previous consent alone. 
A taking requires that the vehicle be moved for any distance, no matter
how small.”

Appellant argues the
second paragraph on consent was ambiguous and shifted the burden to him to
prove consent when the prosecution bore the burden to prove lack of consent as
an element of the crime.  (See >People v. Clifton (1985) 171 Cal.App.3d
195, 199 [“The language of the statute places the burden on the People to show
by direct or circumstantial evidence the defendant lacked the consent of the
owner.  [Citation.]”)  The attorney general argues appellant
forfeited this challenge by not objecting in the trial court.  Alternatively, the attorney general argues
there was no error, and even if there was, any error was harmless.

We find appellant
has not forfeited his challenge by failing to object because it implicates his
substantial rights.  (See Pen. Code,
§ 1259; O’Dell, supra, 153
Cal.App.4th at pp. 1573-1574.)  However,
we find no merit to his argument.

In reviewing an
instruction claimed to be ambiguous, we determine whether there is a
“reasonable likelihood” the jury applied it in a way that violated appellant’s
rights.  (Estelle v. McGuire (1991) 502 U.S. 62, 72-73; People v. Smithey (1999) 20 Cal.4th 936, 963.)  The correctness of the instruction is
determined from the entire charge, not merely from a single instruction or from
parts of an instruction.  (>Smithey, supra, at pp. 963-964; see also
People v. Lee (2011) 51 Cal.4th 620,
640.)

The language on
limited consent in the challenged instruction mirrors Vehicle Code section
10851, subdivision (c):  “In any
prosecution for a violation of subdivision (a) or (b), the consent of the owner
of a vehicle to its taking or driving shall not in any case be presumed or
implied because of the owner’s consent on a previous occasion to the taking or
driving of the vehicle by the same or different person.”  (See also Bench Notes to Judicial Council of
Cal. Criminal Jury Instructions (2013) CALCRIM No. 1820, p. 1157.)  Nothing in this subdivision or the trial
court’s instruction relieved the prosecution from proving a lack of consent
after March 17 when appellant kept the car beyond the rental period.  Nor was appellant prevented from offering
evidence to demonstrate consent after that date.  The instruction merely informed the jury that
it could not rely on prior consent alone to find consent at a later date.  Indeed, in the prior paragraph, the
instruction stated that the People bore the burden to prove beyond a reasonable
doubt appellant took or drove the car “without the owner’s consent.”  Given that the court also instructed the jury
repeatedly on the overall burden of proof, we find no reasonable likelihood the
jury placed the burden on appellant to prove consent.

Even if the
instruction was erroneous, the error was harmless beyond a reasonable doubt
under Chapman v. California (1967)
386 U.S. 18, 24 (Chapman).href="#_ftn6" name="_ftnref6" title="">^[6]  (People
v. Flood (1998) 18 Cal.4th 470, 502-503.) 
The evidence of lack of consent after March 17 was overwhelming and
undisputed.  Sukiassyan testified that
appellant kept the car without permission from Domestic after March 17 and
described extensive efforts to contact appellant and recover the car and
payment after that date, all to no avail. 
Defense counsel elicited no contrary testimony on cross-examination and
did not address consent in closing arguments, focusing instead on intent.  Under these circumstances, any error was
harmless and does not warrant reversal.

>3.  Appellant Has Forfeited His Challenge to His
Sentence for Count 1 and He Has Not Shown Ineffective Assistance of Counsel

Appellant argues the
trial court abused its discretion by imposing an upper term of four years on
count 1 because the court mentioned imposing a midterm and its explanation did
not support an upper term:  “So the court
is going to set total jurisdiction in this case at the maximum of eight years,
but it will be eight years with seven years in custody in county jail.  That’s calculated as the mid term of three
years.  The court selects the mid term
because of the nature of the current offense and the relative small amount of
loss balanced against his numerous convictions that are not part of the state
prison parties [sic ‑‑
likely “priors”].  So mid term of three
years ‑‑ I’m sorry, high term of four years, four years priors,
total jurisdiction of eight years.”

Although defense
counsel argued against an upper term before the court announced appellant’s
sentence, defense counsel did not object to the explanation he now challenges,
and we find his argument forfeited.  (>People v. Scott (1994) 9 Cal.4th 331,
353.)  We will nevertheless address this
claim because appellant contends the failure to object amounted to ineffective
assistance of counsel.  He has the burden
to show “(1) his . . . trial counsel’s representation fell below
an objective standard of reasonableness and (2) he . . . was
prejudiced (i.e., there is a reasonable probability that a more favorable
determination would have resulted in the absence of counsel’s deficient
performance).”  (People v. Ortiz (2012) 208 Cal.App.4th 1354, 1372, citing, inter
alia, Strickland v. Washington (1984)
466 U.S. 668, 687.)

We need not decide
whether defense counsel was deficient in failing to timely object to the
court’s statement of reasons because it was not reasonably probable the court
would have imposed a midterm had defense counsel done so.  In addition to the court’s express reasons
for imposing an upper term, the court denied probation in part because
appellant took advantage of Domestic as a small company that could not track
his rental history.href="#_ftn7" name="_ftnref7"
title="">^[7]  That fact alone could have justified imposing
an upper term.  (See Cal. Rules of Court,
rule 4.421(a)(3) & (8) [identifying as aggravating factors whether victim
was “particularly vulnerable” and whether crime was carried out with planning
or sophistication]; see People v. Black (2007)
41 Cal.4th 799, 813 [“[T]he existence of a single aggravating circumstance is
legally sufficient to make the defendant eligible for the upper term.”].)  Appellant does not argue this factor was
insufficient or improper to justify an upper term, but only that the court did
not expressly rely on it for that purpose. 
Had his counsel timely objected, we think the court would have.  Because appellant cannot show a reasonable
probability the court would have imposed a midterm had his counsel objected,
his ineffective assistance of counsel claim fails.

DISPOSITION

The judgment is affirmed.

 

 

                                                                                                FLIER,
J.

WE CONCUR:

 

 

                        RUBIN, Acting P. J.

 

 

                        GRIMES,
J.