P. v. Hymes

Filed 11/30/09 P. v. Hymes CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

Appellants petition for rehearing filed November 16, 2009, is denied. The opinion filed in this matter on October 29, 2009, is modified as follows:

1. On page 2, after the sentence, Third, defendant asserts that his conviction for violating Vehicle Code section 10802 must be reversed because the trial court did not sua sponte instruct the jury on the subject of unanimity, the following sentence is added, Fourth, defendant contends that the trial court erred by not properly responding to the jurys question regarding the word knowingly in the instruction related to the Vehicle Code section 10802 charge.

2. On page 15, in the following sentence, Defendant asserts that his conviction under Penal Code section 10802 must be reversed because the trial court did not sua sponte instruct the jury on the subject of unanimity, the word Penal is replaced with the word Vehicle.

3. On page 17, above the heading DISPOSITION, the following section is added:

D. Jury Question

1. Statutory Language

Vehicle Code section 10802 provides: Any person who knowingly alters, counterfeits, defaces, destroys, disguises, falsifies, forges, obliterates, or removes vehicle identification numbers, with the intent to misrepresent the identity or prevent the identification of motor vehicles or motor vehicle parts, for the purpose of sale, transfer, import, or export, is guilty of a public offense . . . .

2. Facts

The trial court instructed the jury, Every crime charged in this case requires proof of the union, or joint operation, of act and wrongful intent. [] In order to be guilty of the crimes, a person must not only intentionally commit the prohibited act, but must do so with a specific intent or mental state. The act and intent or mental state required are explained in the instruction for every crime. (CALCRIM No. 251.)

The trial court further instructed the jury, Defendant is accused in Count 3 of having violated section 10802 of the Vehicle Code, a crime. [] To prove that the defendant is guilty of this crime, the People must prove that: [] 1. The defendant knowingly altered, counterfeited, defaced, destroyed, disguised, falsified, forged, obliterated, or removed vehicle identification numbers; AND [] 2. The defendant acted with the intent to misrepresent the identity or prevent the identification of motor vehicles or motor vehicle parts for the purpose of sale, transfer, import or export.

At 2:45 p.m., the jury retired to begin their deliberations. At 3:30 p.m., the jury sent the following written question to the trial court: On Count 3 of the charge, does the word knowingly mean he had to physically perform the act? Or is it enough that [he] knew the VIN was altered? The trial court and trial counsel conferred about the jurys question in chambers; however, a court reporter did not transcribe the conversation. In response, the trial court wrote to the jury, Please go to the instructions again. At 3:50 p.m., the jury indicated that they reached verdicts.

3. Analysis

Defendant contends that the trial court erred by not resolving the jurys confusion regarding the word knowingly in Vehicle Code section 10802. Defendant asserts that the trial courts error may have caused some of the jurors to convict him based upon the physical act of altering the VIN, while causing other jurors to convict him based upon his knowledge that someone else altered the VIN. We disagree.

a) Forfeiture

We begin by addressing the issue of forfeiture. Defendant contends that he did not forfeit this issue for appellate review, despite the absence of an objection on the record, because defendants substantial rights were affected by the trial courts inadequate response. The People disagree, and contend that defendant has waived the issue for appellate review by not objecting to the trial courts answer on the record. (People v. Roldan (2005) 35 Cal.4th 646, 729, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; People v. Marks (2003) 31 Cal.4th 197, 237.) We choose to address the merits of defendants contention, because the issue is easily resolved.

b) Merits

The jurys request for further clarification triggered [Penal Code] section 1138. The statute provides in part: After the jury have retired for deliberation, . . . if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given . . . . This means the trial court has a primary duty to help the jury understand the legal principles it is asked to apply. [Citation.] This does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jurys request for information. [Citation.] Indeed, comments diverging from the standard are often risky. [Citation.] [Citation.] However, [a] definition of a commonly used term may nevertheless be required if the jury exhibits confusion over the terms meaning. [Citation.] [Citation.] [Citation.] (People v. Montero (2007) 155 Cal.App.4th 1170, 1179.) We review the trial courts answer to the jurys question for an abuse of discretion. (Ibid.)

The trial court informed the jury that all the counts required findings that (1) defendant intentionally committed the prohibited act, and (2) committed the prohibited act with a specific intent or mental state. (CALCRIM No. 251.) The trial court also informed the jury that it must be the defendant who knowingly altered, counterfeited, defaced, destroyed, disguised, falsified, forged, obliterated, or removed vehicle identification numbers The trial courts instructions placed the alteration of the VIN in verb form, while knowingly was used as an adverb. The construction of the sentence is not confusing, because knowingly is not a verb. Accordingly, we conclude that the trial court did not abuse its discretion by referring the jury back to the previously given instructions, because the instructions were full and complete.

Defendant asserts that the statutory language of Vehicle Code section 10802 is unambiguous; Defendant contends that the statute clearly requires that a defendant must have personally altered a vehicles VIN, in order to be convicted of violating Vehicle Code section 10802. Defendant then insists that the jurys question indicated that the jury was confused by the trial courts original instruction, and therefore, the trial court erred by referring the jury back to the instruction, because jurors might have found defendant guilty for merely knowing that the VIN was altered.

The flaw in defendants argument is that the statutory language and the instructional language are essentially mirror images of one another. Since defendant contends that the statutory language contains no ambiguity, we are not convinced by his argument that the trial courts answer to the jury constitutes an abuse of discretion.

Except for this modification, the opinion remains unchanged. This modification does not effect a change in the judgment.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ MILLER

J.

We concur:

/s/ RAMIREZ

P. J.

/s/ HOLLENHORST

J.

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