P. v. Lemos

Filed 7/31/07 P. v. Lemos CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

Marcos Dominguez Lemos (Lemos) appeals from a judgment of conviction and sentence imposed after a jury found him guilty of vehicle theft. He contends the trial court erred in denying his motion for an acquittal based on insufficient evidence. (Pen. Code,  1118.1.) We will affirm the judgment.

I. FACTS AND PROCEDURAL HISTORY

An information charged appellant Lemos and two codefendants, William Barham (Barham) and Charles Phipps (Phipps), with three counts: count I for vehicle theft (Veh. Code, 10851, subd. (a)); count II for receiving stolen property (Pen. Code, 496, subd. (d)); and count III for conspiracy to commit vehicle theft (Pen. Code, 182, subd. (a)(1)). The matter proceeded to a trial by jury.

A. Prosecution Case

The People essentially contended at trial that Lemos, Barham, and Phipps were involved in the theft of a white Camaro, perpetrated by convincing a tow truck driver, who was Lemoss friend, to take the car from a parking lot to Phipps house. The evidence included the following.

1. Victim Farriss Testimony

Brent Farris (Farris) testified that he parked his white 1967 convertible Camaro in the parking lot of the Luther Burbank Center (LBC) around 7:00 p.m. on May 26, 2005. When he came out of the LBC around 10:00 p.m., he could not find his car. He had not given anyone permission to use it.

2. Tow Truck Driver Youngs Testimony

Tow truck driver Steve Young (Young), owner of Arts Towing in Santa Rosa, had known Lemos for over a year. Lemos had used Youngs towing services a couple of times.

At about 8:00 p.m. on May 26, 2005, Young received a call from Lemos, who said he was locked out of his carin the LBC parking lot and asked Young to come and unlock it. Young found Lemos in the LBC parking lot and unlocked the vehicle. Lemos then asked if Young would tow a car for his buddy (Barham), who was standing with Lemos and whom Young had never seen before. Lemos and Barham directed Young to a white Camaro with a black convertible top in the LBC lot. In Lemoss presence, Barham told Young that the Camaro belonged to Barhams son, and he had lost the keys at a silent auction in the LBC. Young unlocked a door of the Camaro. Young asked how they would pay the $85 to tow the car to Santa Rosa. Barham said he did not have any money, but Lemos said he would pay. As Young prepared to tow the Camaro, Barham was in the car and Lemos was leaning inside, talking to him. Lemos then walked away.

Barham rode in the tow truck with Young and told him to take the Camaro to Weber Lane. On the way, Barham claimed the Camaro was his sons car and mentioned that he had spent $7,800 in repairs. Young offered to buy it for that amount, but Barham declined.

Barham directed Young to a house on Weber Lane near Bellevue Avenue shortly before 9:00 p.m. Young unhooked the Camaro and, with the help of Barham and two boys, pushed the car away from Youngs truck. Young went home.^[1]

Young believed that Barham owned the Camaro and did not consider the incident suspicious, especially since he had previous contacts with Lemos involving towing. On his way to work the next morning (May 27), however, Young heard on the radio that a white Camaro had been stolen the night beforefrom LBC. Young drove to Weber Lane around 7:35 a.m. but did not see the Camaro. He telephoned Detective Jim Thomsen of the California Highway Patrol Sonoma County Auto Theft Task Force, with whom he had worked in the past, and told Thomsen what happened.

Young called Lemos around 9:00 a.m. and asked where Lemoss buddy was, so he could recover the Camaro. Lemos denied knowing where Barham was or what happened to the car. Young again called Lemos around 6:00 p.m. Lemos disclosed nothing about the Camaro but said that Barham lived on Sonoma Avenue, told him the color of the house, and claimed that Barham drove a white Volvo.

3. Robin Begins Testimony

Robin Begin (Begin) testified that Barham was staying at her house in May 2005. She introduced Barham to Lemos, whom Begin had known for about a year, as William.

Around 4:30 p.m. on Friday, May 27, Begin received a call from Lemos. He said the police contacted him and that Will (Barham) might have stolen a vehicle the night before.

4. Detective Thomsens Testimony

On Friday, May 27, after receiving Youngs telephone call, Detective Thomsen met Young at the house where Young had towed the Camaro, located at 556 Weber Lane. The detective knocked on the door, and Phipps answered. As Thomsen introduced himself, Phipps interrupted, Its about the Camaro, right? By Phipps account, a tow truck with a white Camaro pulled up in front of his house on Thursday night. A white male, whom Phipps did not recognize, asked for Paul, who used to live with Phipps. Phipps replied that Paul no longer lived there, and the man left in the tow truck.

Detective Thomsen went to Lemoss office and learned that he was at a job site. Thomsen called Lemoss cell phone, told him who he was and that he wanted to talk to him. Lemos said he was at a job site in Cloverdale but would return to Santa Rosa shortly. Thomsen asked Lemos to call him when he returned to Santa Rosa. Two hours later Thomsen called him again, and Lemos said he was still in Cloverdale. Thomsen offered to meet him there, but Lemos claimed he could not provide an exact location. Thomsen drove to Cloverdale with his partner. When they arrived, they called Lemos, who told them where he was.

Lemos told Detective Thomsen that he attended a Sammy Hagar concert at the LBC on the night of Thursday, May 26. He locked his keys in his GMC Yukon, and called Young to unlock the car. In the parking lot, Lemos was approached by a person he knew as John, whom he had employed as a day laborer. John claimed that his sons Camaro would not start, and Lemos asked Young to tow the car. Lemos offered to pay for the tow because he owed John a days wages.

Detective Thomsen learned from others that two people had been working with Lemos at the Cloverdale job site just before the detective arrived. Thomsen asked Lemos if this was true, and Lemos claimed he did not want to say anything about them because he was paying them under the table. When Thomsen asked if one of them was known as John, Lemos paused, acted surprised, and said yes. Lemos said the other person, Allen Caulfield, had given John a ride to Santa Rosa, and Lemos would try to find out from Caulfield where he dropped off John. Lemos never explained why he called Barham John.

About a half-hour later, Lemos called Detective Thomsen and said that John was dropped off at 2803 Sonoma Avenue and was driving a red Subaru. Thomsen immediately drove to 2803 Sonoma Avenue but did not see a red Subaru or any other vehicle in front. He set up surveillance for a few hours but did not see anyone return.

At about 2:00 p.m. on Sunday, Detective Thomsen received a telephone call from Young, who related that Lemos gave him Barhams general location and advised that Barham was driving a white Volvo.^[2]Detective Martin went to 2803 Sonoma Avenue. Barham was arrested at Begins house.

5. Recovery of Farriss Vehicle

That same afternoon (Sunday, May 29), victim Farris received a call from a woman who thought she had spotted his car. Farris went to the location, saw it was his Camaro, and called the police. Santa Rosa Police Officer Jesse Cude recovered the Camaro at 2:15 p.m., about three miles from Phipps residence. The cars ignition had been punched out, the stereo system and speakers were missing, and the new wheel rims and tires had been replaced with older ones.

6. Detective Thomsens Subsequent Interviews

Detective Thomsen interviewed Barham on May 29. Barham said that he worked for Lemos occasionally as a day laborer, and Lemos knew his real name. On May 26, Barham stated, he worked all day with Lemos in Cloverdale. Lemos then drove them in his Yukon to LBC to attend a Sammy Hagar concert. They parked in the LBC lot and met a man named Paul and another person. At some point, Lemos discovered he locked his keys to the Yukon in the vehicle. A tow truck driver (Young) arrived and unlocked the Yukon. He then began talking to Barham. He said he liked the white convertible Camaro in the lot and, if Barham told Lemos that the car belonged to Barham, he would give Barham a F-150 pickup truck.^[3]Barham agreed and indicated he could store the Camaro for an hour or so. Barham then told Lemos that the Camaro belonged to his son. Barham thought Lemos knew he was lying, but Lemos nonetheless said he would pay the $85 towing charge. The tow truck driver unlocked the Camaro and hooked it up. Barham went with Young in the tow truck and directed him to the home of Phipps, his half brother, on 556 Weber Lane. There, his nephews helped push the Camaro onto the property. Young returned Barham to the concert, and Barham did not see the Camaro again. The next morning (May 27), Young asked him the whereabouts of the Camaro, and Barham asked Young how he was going to get the F-150 pickup truck. Barham worked at the Cloverdale job site with Lemos and left just before the officers arrived.

On June 1, Detective Thomsen spoke again to Phipps, who now had a different recollection of the incident. Phipps said that his half brother, Barham, brought the Camaro to his residence, described it as his dream car, and asked him to keep it for his son. Phipps found this unusual, because Barham was essentially homeless and could not have afforded it. When Phipps saw the registration in Farriss name, he told Barham to get the car off his property. Phipps refused Barhams request to make a key for the car, but told him how to hot-wire it, gave him wires to do it, and instructed him to dump the car on a dead end street.^[4]Thomsen searched Phipps property, but found nothing relevant to the theft.

On June 2, Detective Thomsen again spoke to Lemos. While earlier Lemos had said that John approached him in the parking lot, he now acknowledged that John went to the concert with him. Lemos explained that John had worked for him on Thursday, they stopped at a bar after work, and then they drove together to LBC in Lemoss Yukon. As they entered the parking lot, they passed a white Camaro and John said he wanted the car. At some point, Lemos realized he had locked his keys in the Yukon. After Young arrived and unlocked the Yukon, Lemos saw John and Young

talking, but he did not know what they were discussing and did not set up the tow. Lemos agreed to pay for the tow out of money he owed Barham for work. When Thomsen asked Lemos why he would agree to pay for towing a car he knew did not belong to John, Lemos changed his story and said the car belonged to Barhams son.

Lemos claimed he had not seen or spoken to John since he walked away from the parking lot to the concert. He recalled, however, that Young had offered to buy the Camaro from John for $7,800. When Thomsen confronted Lemos with the fact that Young made his offer after he and Barham had left the parking lot in the tow truck, Lemos paused and then changed his story, claiming that he spoke to John on the phone the next morning.

When Thomsen asked Lemos if he was involved in the car theft, Lemos laughed and said his lawyer would get him out of it.

B. Motion for Acquittal

At the end of the Peoples case, Lemos moved for a judgment of acquittal on the grounds of insufficient evidence. (Pen. Code,  1118.1.) The court denied the motion as to count I (vehicle theft) and granted the motion as to counts II (receiving stolen property) and III (conspiracy).^[5]

C. Defense Case

1. Appellant Lemoss Testimony

Lemos testified that he was a concrete contractor who met Barham in May 2005 through his friend Begin. Barham worked for Lemos once in mid-May and also on May 26 and May 27. On May 26, Lemos picked up Barham at Begins house in Santa Rosa around 8:00 a.m., and they went to the Cloverdale job site, where they worked all day. Lemos and Barham left the site after 4:00 p.m. and went to a bar, where Lemos ran into a friend, Paul Lira (Lira). Lira gave Lemos tickets to the Sammy Hagar concert at LBC. Lemos and Barham left the bar about 6:30 p.m. and went to LBC for the 7:00 p.m. concert.

When they arrived at LBC, they spotted a Camaro they liked and parked near it. Barham said he wanted the car or I like that car, and everyone was admiring it. Barham also told Lemos that the car belonged to his son and that it was not running. Barham and Lemos met Lira and his friend at the other side of the parking lot. Lemos wanted to get a bottle of water and realized he did not have his keys.^[6] Realizing he locked them in the Yukon, Lemos called Young to unlock the vehicle. After Young unlocked Lemoss car, Lemos asked Young to tow a car for someone who worked for him; he denied that he called Barham his buddy. Lemos owed Barham $100 for work that day, so he offered to pay the $85 to tow the Camaro. He had no idea Barham had no right to take possession of the car. Lemos went to the concert. He talked to Barham the next morning and asked him what happened to the car.

Lemos admitted that he did not tell Detective Thomsen that he had spoken with Barham Friday morning until Thomsen confronted him. He also admitted that he knew Barhams name was really William when he continually told Thomsen that his name was John. In addition, Lemos acknowledged, he misled Thomsen in claiming that no one else was working with him at the Cloverdale job site on May 27. He asserted that he was not forthright because he was paying those workers under the table.

2. Paul Liras Testimony

Lira testified that he met Lemos by chance outside a bar on May 26. Lira persuaded Lemos, who was with a laborer whom Lira had not met, to go to the Sammy Hagar concert. Lira and a friend later met up with Lemos and his worker in the LBC parking lot. Lemos paid Lira for the tickets, including the ticket for his laborer, because he owed the laborer money for his work. As they were getting ready to go into the concert, Lemos realized that he did not have his car keys. Lemos called a tow truck to retrieve the keys from the Yukon. After the tow truck driver opened Lemoss car, Lira, Lemos, and another friend went to the concert without Barham. Lira was not present for any discussion about towing a vehicle, and Lira did not see a Camaro.

D. Verdict and Sentence

The jury found Lemos guilty of vehicle theft (count I). The trial court suspended imposition of sentence and granted Lemos three years of formal probation.

This appeal followed.

II. DISCUSSION

Lemos contends that the trial court abused its discretion in denying his motion for acquittal on the vehicle theft charge.

Penal Code section 1118.1 requires the trial court to order the entry of a judgment of acquittal of one or more of the offense charged in the accusatory pleading if the evidence then before the court is insufficient to sustain a conviction of such offense or offenses on appeal. (See People v. Allen (2001) 86 Cal.App.4th 909, 913.)^[7]

The standard under Penal Code section 1118.1 is whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged. (People v. Crittenden (1994) 9 Cal.4th 83, 139, fn. 13; see People v. Cole (2004) 33 Cal.4th 1158, 1212-1213 (Cole).)

The trial courts denial of a motion for acquittal under Penal Code section 1118.1 is reviewed de novo. (Cole, supra, 33 Cal.4th at p. 1213.)

To establish a violation of Vehicle Code section 10851, the prosecution must prove beyond a reasonable doubt that the defendant took or drove a vehicle belonging to another person without the owners consent, with specific intent to permanently or temporarily deprive the owner of title or possession. (People v. Green (1995) 34 Cal.App.4th 165, 180 (Green).) Knowledge that the vehicle was stolen is not an element of the offense, but merely one of various alternative factors evidencing an intent to deprive the owner of title and possession. (Id. at p. 180.) Specific intent to deprive the owner of possession of his car may be inferred from all the facts and circumstances of the particular case. (Id. at p. 181.)

Lemos argues that, by the close of the prosecutions case-in-chief, there was insufficient evidence to show that he knew the Camaro did not in fact belong to Barham (or Barhams son), and thus there was insufficient evidence of intent to temporarily or permanently deprive the owner of possession.

The evidence was sufficient. It suggested that Lemos knew Barham was lying when he told Young that his son owned the Camaro and he had lost the keys at a silent auction at the LBC. This was impossible because, as both Lemos and Barham told Detective Thomsen, Lemos had worked with Barham the entire day of the concert and from there drove Barham to the concert: there was no opportunity to lose the keys at any silent auction. As Barham told Detective Thomsen, he believed Lemos knew Barham was lying about the Camaro belonging to his son, since Lemos knew he did not have such a car. Moreover, as Lemos told Detective Thomsen, John (Barham) asserted that he wanted the Camaro as they passed it in the parking lot. From this evidence it could reasonably be inferred that Lemos knew the Camaro did not, in fact, belong to Barham or his son.

The evidence also indicated that Lemos was working with Barham at the parking lot to get Young to tow the car. Although Lemos claimed he had only met Barham recently and used him as a laborer only once or twice, Young testified that Lemos introduced Barham as a buddy, asked Young to tow his buddys car, and stated that he would pay for the towing for Barham. After Young unlocked the Camaro, Young saw Lemos and Barham conferring in the Camaro as he prepared to tow the car.

In addition, there was evidence that Lemos was evasive when Young asked him the whereabouts of Barham and the Camaro. When Young initially contacted Lemos after discovering the Camaro was stolen, Lemos claimed he did not know where to find either Barham or the car. This was untrue, because Barham was living at the home of Lemoss friend, Begin, and Begin had introduced Lemos to Barham there. Even when Young confronted Lemos a second time, Lemos did not give Young the street address of Barhams residence but only the general location.

Lemos admittedly lied to Detective Thomsen as well. Although Lemos drove Barham to the concert, he initially told Thomsen that a laborer named John had approached him in the parking lot and claimed his sons Camaro would not start. Lemos also told Thomsen that he worked alone on May 27, when in fact he worked with John (Barham) on both May 26 and May 27. While Lemos told Young on Friday that the person whom he had called his buddy was driving a white Volvo, Lemos told the detective on Friday that John was driving a red Subaru.

Lemoss unexplained and continuing reference to Barham as John also suggests he was attempting to hide Barhams identity. When Thomsen tracked Lemos down in Cloverdale the day after the theft, Lemos referred to the person he was with at the LBC as a laborer he knew only as John. In fact, Lemos knew him as William, because that is how Begin introduced him. Lemos called Begin the day after the theft and alerted her that Will might have stolen a car. Barham said that Lemos knew his true name.^[8]

From this evidence, a reasonable trier of fact could conclude that Lemos knew that Barham had no rightful claim to the Camaro when Lemos asked Young to tow the Camaro and agreed to pay for that service, and that the requisite intent for vehicle theft was established.

Lemos contends that the contradictions in his statements might raise suspicions, but suspicions are not enough. (People v. Kunkin (1973) 9 Cal.3d 245, 250.) Here, however, there was substantial evidence of intent. Intent must often be proved with circumstantial evidence. (People v. Edwards (1992) 8 Cal.App.4th 1092, 1099.) Furthermore, [g]uilty knowledge and intent to violate the law may be shown by the facts and circumstances of the case, including the conduct of the defendant and any false or misleading statements which he may make to the arresting officers or others with relation to the material facts. (People v. Gibson (1944) 64 Cal.App.2d 537, 539.)

Lemos has failed to establish that the trial court erred in denying his motion for an acquittal pursuant to Penal Code section 1118.1 on the vehicle theft count.

III. DISPOSITION

The judgment is affirmed.

NEEDHAM, J.

We concur.

JONES, P. J.

SIMONS, J.

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^[1] This account was confirmed by the testimony of David Sather, who lived on Bellevue Avenue near Weber Lane. On May 26, 2005, about 9:00 p.m., he saw a tow truck coming down Weber Lane, towing a 1967-1969 white convertible Camaro. The Camaro was pushed into the driveway. Around 10:30 to 11:30 p.m., he heard a motor revving up and running; he assumed they got the car started.

^[2] Youngs testimony was in accord. He recalled that on Sunday he saw a white Volvo parked in the driveway of a house on Sonoma Avenue. After calling Thomsen, Young rang the doorbell and, after about 10 minutes, Barham answered. Young asked what happened to the Camaro, and Barham said he gave it to a friend in Windsor. Barham claimed he did not know the persons name or address or the location of the car.

^[3] Young disputed this account. He testified that he never talked to Barham about a F-150 truck. He did tell Lemos that he had a F-150 pickup truck for sale in the yard, because Lemos had previously asked him to look for a truck for him. Barham was within hearing range.

^[4] Barham denied talking to Phipps about stripping or hot-wiring the car.

^[5] Barham and Phipps also filed motions for acquittal under Penal Code section 1118.1. As to Barham, the court granted the motion as to the conspiracy charge. Phipps motion was granted as to all three counts.

^[6] Later Lemos testified that he realized he lost his keys when he was starting to leave his car but went to get some water in the back seat, and that he had the bottle of water when he met Lira. When confronted with this inconsistency, he claimed they were getting ready to go the concert when he felt his pocket and realized his keys were not there.

^[7] Penal Code section 1118.1 reads: In a case tried before a jury, the court on motion of the defendant or on its own motion, at the close of the evidence on either side and before the case is submitted to the jury for decision, shall order the entry of a judgment of acquittal of one or more of the offenses charged in the accusatory pleading if the evidence then before the court is insufficient to sustain a conviction of such offense or offenses on appeal. If such a motion for judgment of acquittal . . . is not granted, the defendant may offer evidence without first having reserved that right.

^[8] Although not relevant to the motion for acquittal, which was brought after the prosecutions case-in-chief and before Lemos testified, Lemos did admit at trial that he knew Barhams name was William rather than John, yet never explained why he continued to call him John to the police.