Brief Bank # B-863 (Re: F 14.37 n5 / LIO VI [Unlawful Vehicle Taking (VC 10851): Auto Tampering (VC 10852) As Lesser Included].)
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Date Of Brief: September, 2000.
I. THE TRIAL COURT VIOLATED APPELLANT’S FOURTEENTH AMENDMENT RIGHTS TO DUE PROCESS AND A FAIR TRIAL, AND HIS SIXTH AMENDMENT RIGHTS TO TRIAL BY JURY, COMPULSORY PROCESS AND EFFECTIVE ASSISTANCE OF COUNSEL UNDER THE FEDERAL CONSTITUTION, BY REFUSING THE DEFENSE REQUEST TO INSTRUCT ON THE DEFENSE THEORY THAT APPELLANT WAS GUILTY AT MOST OF TAMPERING WITH A VEHICLE OR MALICIOUS MISCHIEF OF A VEHICLE; THE TRIAL COURT ERRED AND VIOLATED APPELLANT’S STATE CONSTITUTIONAL RIGHT TO INSTRUCTION ON THE LESSER INCLUDED OFFENSES OF TAMPERING WITH A VEHICLE AND MALICIOUS MISCHIEF TO A VEHICLE
A. Summary of Proceedings Below.
Trial counsel requested that the trial court instruct on the lesser included offenses of malicious mischief to a vehicle (Veh. Code, § 10853) and tampering with a vehicle (Veh. Code, § 10852). (RT 120-121.) Vehicle Code section 10853 provides:
“No person shall with intent to commit any malicious mischief, injury or other crime, climb into or upon a vehicle whether it is in motion or at rest, nor shall any person attempt to manipulate any of the levers, starting mechanism, brakes, or other mechanism or device of a vehicle while the same is at rest and unattended, nor shall any person set in motion any vehicle while the same is at rest and unattended.”
Vehicle Code section 10852 provides:
“No person shall individually or in association with one or more other persons, willfully injure or tamper with any vehicle or the contents thereof or break or remove any part of a vehicle without the consent of the owner.”
Trial counsel argued at length that both offenses were lesser offenses that the jury was entitled to consider under the evidence, and he informed the trial court that he wished to present the theory that appellant’s sole intent was to vandalize Mr. V’ vehicle, and that he did not therefore form the specific intent requisite to unlawful taking of a vehicle. [Footnote 1] (RT 122, 135.)
The trial court immediately ruled that Vehicle Code section 10852 was a lesser related offense, and that it could not give the instruction under People v. Birks (1998) 19 Cal.4th 108. (RT 121.) After a lengthy discussion, the trial court denied the defense request for instruction on Vehicle Code section 10853, because it was “not persuaded” that the offense was a lesser included offense of unlawful taking of a vehicle and it was also not persuaded that appellant’s “intent was either to injure the vehicle or commit some other crime.” (RT 139.)
Both tampering with a vehicle and malicious mischief to a vehicle were lesser included offenses, because a person cannot take “and” drive a vehicle without “tampering” with it, and the trial court erred in refusing to give the requested instructions. (People v. Anderson (1975) 15 Cal.3d 806; CT 51.) There was substantial evidence supporting the instructions. Appellant’s statement, the evidence that appellant acted impulsively in jumping into Mr. V’ car, evidence that he was drunk at the time, and that his state of mind vacillated substantially supported a jury finding that appellant never formed the specific intent to “deprive” Mr. V of his car, and merely intended to tamper with it or vandalize it during the short time he was driving the car.
As a result of the trial court’s ruling, trial counsel could not argue his defense theory to the jury, and was forced to adopt the sole theory that appellant’s only intent while he was taking and driving the vehicle was to get away from a beating by Mr. V. (RT 174-185.) Thus, the trial court’s erroneous refusal to give the requested instructions deprived appellant of his federal constitutional rights to instructions and a closing argument on the defense theory of the case. (Conde v. Henry (9th Cir. 2000) 198 F.3d 734.)
B. The Trial Court Erred in Finding that Vehicle Code Sections 10852 and 10853 Were Not Lesser Included Offenses to Unlawful Driving and Taking of a Vehicle.
1. Summary of Applicable Legal Principles.
A lesser offense is necessarily included in a greater offense if one of two tests is met: the “‘elements test’” or the “‘accusatory pleading test.’” (People v. Lopez (1998) 19 Cal.4th 282, 288.) The elements test is satisfied if under the statutory language “[the greater] crime cannot be committed without also necessarily committing [the] lesser offense.” (Ibid.) Under the accusatory pleading test, a lesser offense is included within the greater charged offense “‘if the charging allegations of the accusatory pleading include language describing the offense in such a way that if committed as specified the lesser offense is necessarily committed.'” (Id. at 288-289, quoting People v. Toro (1989) 47 Cal.3d 966, 972.)
People v. Hicks (1983) 147 Cal.App.3d 424, 428 labeled Vehicle Code sections 10852 and 10853 “lesser included offenses” of Vehicle Code section 10851. However, Hicks did not explicitly undergo an “elements test” or an “accusatory pleading test.” Therefore, appellant does so below, and then sets forth the substantial evidence supporting the lesser included offense instructions.
2. Tampering with a vehicle is a lesser included offense of unlawful taking of a vehicle under the statutory elements test.
Cases addressing the relationships between and the elements of grand theft auto (Pen. Code, § 487, subd. 3), unlawful taking of a vehicle (Veh. Code, § 10851) and tampering with a vehicle (Veh. Code, § 10852) demonstrate that tampering with a vehicle is a lesser included offense of unlawful taking of a vehicle. It has long been held that unlawful taking of a vehicle is a lesser included offense of grand theft auto under “the elements test.” (People v. Barrick (1982) 32 Cal.3d 115, 127, disapproved on another ground in People v. Collin (1986) 42 Cal.3d 378, 393; People v. Jaramillo (1976) 16 Cal.3d 752, 755; People v. Buss (1980) 102 Cal.App.3d 781, 784.) Penal Code section 487, subdivision 3, proscribes the same conduct as Vehicle Code section 10851, but requires a greater, felonious intent to steal. (Jaramillo, supra, 16 Cal.3d at 755-756.)
It is also established that Vehicle Code section 10852 is a lesser included offense of Penal Code section 487, subdivision 3, under the “elements test.” (People v. Anderson, supra, 15 Cal.3d 806; see also People v. Mooney (1983) 145 Cal.App.3d 502, 505 [vehicle code section 10852 is a lesser, necessarily included offense of auto burglary, Penal Code section 459].) Concisely stated, Penal Code section 487, subdivision 3, prohibits feloniously stealing, taking, carrying or driving away the automobile of another. (Jaramillo, supra, 16 Cal.3d at 755; see also Pen. Code, §§ 484, 486.) Vehicle Code section 10852 prohibits, among other things, willfully “tamper[ing]” with a vehicle. “To tamper” with a vehicle means “‘to interfere’” with it. (People v. Anderson, supra, 15 Cal.3d at 810, quoting Webster’s New World Dict. (2d College ed. 1974).) “Interference” of a vehicle constitutes “any act inconsistent with the ownership thereof.” (Ibid.; see also Mooney, supra, 145 Cal.App.3d at 505.) Since “[o]ne who steals an automobile must necessarily ‘interfere with’ it,” Vehicle Code section 10852 is a lesser, necessarily included offense of grand theft auto. (People v. Anderson, supra, 15 Cal.3d at 810.)
The Anderson, supra, 15 Cal.3d at 810, definition of “tampering” establishes that tampering with a vehicle is a lesser, necessarily included offense of unlawful taking of a vehicle. One cannot drive or take a vehicle within the meaning of Vehicle Code section 10851 without interfering with the ownership of the vehicle, in other words, without “tampering” with it. Therefore, just as Vehicle Code section 10852 is a lesser, necessarily included offense of Penal Code section 487, subdivision 3, it is a lesser, necessarily included offense of Vehicle Code section 10851.
3. Malicious mischief to a vehicle is a lesser, necessarily included offense under the “accusatory pleading” test.
The information alleged that appellant did “unlawfully drive and take” Mr. V’ vehicle. (CT 51.) The information therefore deviated from the disjunctive language of Vehicle Code section 10851, which proscribes driving “or” taking a vehicle. (CT 51, emphasis supplied.) Thus if a person cannot drive and take a vehicle with the intent to permanently or temporarily deprive the owner of it, without also violating Vehicle Code section 10853, the latter is a necessarily included offense of the former for purposes of this case. (See, e.g., People v. Green (1995) 34 Cal.App.4th 165, 174 [where prosecution alleged both driving and taking a vehicle under Vehicle Code section 10851, former Penal Code section 499b became lesser, necessarily included offense].)
A person cannot violate Vehicle Code section 10851 as pleaded in the information without also violating Vehicle Code section 10853. Vehicle Code section 10853 contains the disjunctive language “nor shall any person,”[Footnote 2] and therefore one can violate the statute in any one of three different ways. The specific intent [Footnote 3] requisite to Vehicle Code section 10853 is extremely broad, in that it prohibits certain conduct with the intent to commit malicious mischief, commit injury, or commit any “other crime.” The “other crime” category must necessarily include a violation of Vehicle Code section 10852, which as set forth above, is itself a lesser, necessarily-included offense of Vehicle Code section 10851. Thus if a person has the intent to “tamper” with a vehicle and climbs into it or upon it, either when it is in motion or at rest, one has violated Vehicle Code section 10853. Since a person cannot take and drive another person’s vehicle with the intent to deprive the owner of the vehicle, without climbing into it, tampering with it and intending to do so, Vehicle Code section 10853 is a lesser included offense of Vehicle Code section 10851 under the accusatory pleading test.
C. The Trial Court Erred in Refusing to Instruct on Malicious Mischief and Tampering with a Vehicle.
Under California law, a trial court must instruct sua sponte on a lesser included offense whenever the evidence supporting the lesser offense “is substantial enough to merit consideration by the jury.” (People v. Barton (1995) 12 Cal.4th 186, 195, fn. 4; see also People v. Breverman (1998) 19 Cal.4th 142, 154.) “’Substantial evidence’ in this context is ‘evidence from which a jury composed of reasonable [persons] could … conclude[ ]’ that the lesser offense, but not the greater, was committed.” (People v. Breverman, supra, 19 Cal.4th at 162, quoting People v. Flannel (1979) 25 Cal.3d at 684.) In deciding whether there is substantial evidence of a lesser offense, courts must not evaluate the credibility of witnesses, because that task is for the jury. (Id. at 162.)
Here, appellant’s statement and other evidence adduced at trial substantially supported a jury finding that appellant never formed the specific intent to temporarily or permanently deprive Mr. V of his vehicle while appellant was driving or taking it, and that appellant instead had the lesser intent to tamper with or vandalize the vehicle. (See, e.g., Breverman, supra, 19 Cal.4th 142, 163-164 [portions of defendant’s statement to police and other evidence introduced at trial supported heat of passion voluntary manslaughter instruction]; People v. Baker (1999) 74 Cal.App.4th 243, 252 [portion of defendant’s testimony, combined with testimony of other witnesses, supported lesser included offense instructions on voluntary manslaughter, simple assault and conspiracy to commit simple assault.) The strong evidence that appellant acted impulsively in initially jumping into Mr. V’ car, either out of self-protection or drunkenness, supported a jury finding that appellant acted thoughtlessly and instinctively, without forming the specific intent to deprive Mr. V of his property. Indeed, appellant jumped in the car just as he saw his friend beaten to the ground, and the prosecution did not even attempt to argue that appellant had an intent to drive Mr. V’ car prior to that moment. (RT 63-64, 169-174.) Appellant further told the police he was drunk at the time, and that as a result, his intent vacillated as he was driving the car. (RT 104.) Both appellant’s statement that he was drunk and his statement regarding its effect on his state of mind supported the trial court’s instruction on voluntary intoxication (RT 154; CT 89), and the erroneously denied instructions on the lesser included offenses. Appellant stated that, because he was drunk, he first drove away from Mr. V and Mr. M, drove back to try and help Mr. M, then impulsively changed his mind and continued driving just a short distance to an area near the Circle K. (RT 96, 104.) Given the short distance appellant drove, and the evidence of appellant’s confusion over what to do, there was substantial evidence from which the jury could conclude appellant lacked the specific intent to deprive Mr. V of his vehicle.
The evidence also substantially supported a jury finding that appellant did intend to tamper with Mr. V’ car and that he did so. When the vehicle was found, its contents were strewn about the car, the window was broken, and a few items stolen. (RT 53-54.) Furthermore, the verbal argument and the physical beating Mr. V subsequently gave appellant’s friend supported a finding that appellant had a motive to tamper with Mr. V’ car.
In sum, given appellant’s apparent impulsive action in jumping in the car, his statement that his state of mind rapidly shifted due to intoxication, that he stopped driving the car a very short distance from the scene of the fight, and that the evidence established the vehicle had been vandalized, a reasonable jury could conclude that appellant never formed the specific intent to “deprive” Mr. V of his property while he was driving it and that he belatedly formed the intent to tamper with it and its contents. Thus, the trial court erred in failing to instruct on tampering with a vehicle and malicious mischief to a vehicle.
D. The Trial Court’s Refusal to Instruct on Tampering with a Vehicle and Malicious Mischief to a Vehicle Deprived Appellant of His Rights to Present a Defense and to Requested Instructions on the Defense Theory of the Case.
1. Summary of relevant California law.
The California Supreme Court has held that a trial court’s error in refusing to instruct on a lesser included offense is solely an error arising under state law. (People v. Breverman, supra, 19 Cal.4th 142.) However, in doing so, it employed traditional lesser offense analysis, framing the issue in terms of what lesser offense alternatives were provided to the jury and whether the jury’s choices produced a reliable result and whether. (Id. at 165-172.) This analysis does not explicitly address whether failure to give a lesser included offense instruction can implicate the well-established federal constitutional right to instruction on the defense theory. (Conde v. Henry, supra, 198 F.3d at 739-741.) As set forth below, the trial court’s refusal to instruct on tampering with a vehicle and malicious mischief to a vehicle did deprive appellant of his rights to an instruction on the defense theory of the case and his right to present a defense.
2. The federal constitutional right to instruction on the defense theory extends to lesser included offense instructions that set forth the defense theory of the case.
Whether rooted in the Sixth Amendment rights to trial by jury and compulsory process, or in the due process clause of the Fourteenth Amendment, the federal constitution guarantees criminal defendants a right to present a defense, and therefore a right to a requested instruction on the defense theory of the case. (Matthews v. United States (1988) 485 U.S. 58, 63 [10 S.Ct. 83, 99 L.Ed.2d 54] [”As a general proposition a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor”]; United States v. Hicks (4th Cir. 1984) 748 F.2d 854, 857-858 [rights to trial by jury and due process abridged by failure to give requested instruction on defense theory of the case].) [Footnote 4] The right to a defense theory instruction extends to instructions on lesser included offenses that set forth the defense theory of the case, even where the requested instruction would set forth one of two alternate defense theories. (Conde v. Henry, supra, 198 F.3d at 739-741 [state trial court’s refusal to instruct on lesser included offense of simple kidnaping violated the defendant’s federal constitutional right to due process, because the instruction set forth one of two alternate defense theories].)
Refusal to give an instruction on the defense theory infringes Sixth Amendment and Fourteenth Amendment guarantees, because it prevents the jury from considering evidence favorable to the defense and from making findings of fact necessary to establish guilt. (Whipple v. Duckworth (7th Cir. 1995) 57 F.3d 496, 423 [refusal to give defense instruction infringes right to a fair trial, amounts to a directed verdict against the defendant, and results in inadequate instructions on the applicable law].) In United States v. Escobar De Bright (1984) 742 F.2d 1196, 1201, the Ninth Circuit concisely described how an erroneous refusal to instruct on the defense theory of the case undermines the fairness of the entire trial:
“Jurors are required to apply the law as it is explained to them in the instructions they are given by the trial judge. They are not free to conjure up the law for themselves. Thus, a failure to instruct the jury regarding the defendant’s theory of the case precludes the jury from considering the defendant’s defense to the charges against him. Permitting a defendant to offer a defense is of little value if the jury is not informed that the defense, if it is believed or if it helps create a reasonable doubt in the jury’s mind, will entitle the defendant to a judgment of acquittal.”
Moreover, where a trial court’s ruling precludes defense counsel from making a closing argument on the defense theory, it deprives the defendant of his rights to effective assistance of counsel and to a jury finding beyond a reasonable doubt on the elements of the charged offense. (See Conde v. Henry, supra, 198 F.3d at 739 [where trial court erroneously refused to instruct on lesser included offense setting forth defense theory and told trial counsel it “would be wrong” to argue that prosecution failed to prove charged crime beyond a reasonable doubt because evidence only supported a lesser offense, defendant’s rights to effective assistance of counsel, to present a defense and to proof of charged crime beyond reasonable doubt were violated].)
Here, trial counsel explicitly requested both lesser included offense instructions on the grounds that he wanted to present the jury with the theory that appellant’s only intent was to vandalize Mr. V’ car. (RT 122, 135.) Thus, in this case, the lesser included offense instructions functioned as instructions on the defense theory, and the trial court’s refusal to give the requested instructions violated appellant’s right to an instruction on the defense theory of the case.
Moreover, the trial court’s ruling precluded trial counsel from arguing that if appellant merely intended to tamper with or vandalize Mr. V’ car, he did not have the specific intent requisite to unlawful taking or driving a vehicle. It thereby violated appellant’s right to effective assistance of counsel, to a closing argument on the defense theory, and to proof of the charged crime beyond a reasonable doubt. (Ibid.) Without the instructions on malicious mischief to a vehicle and tampering with a vehicle, the jury had no instructions distinguishing the levels of criminal intent requisite to the greater and lesser offenses. The instructional omission had the same impermissible effect in this case as the trial court’s ruling in Conde that it would be “‘wrong’” to argue the lesser offense theory. (Ibid.) It would have severely damaged trial counsel’s credibility, and the credibility of the defense as a whole, to argue that appellant did have a criminal intent, but that that intent was simply different and lesser than the one charged by the prosecution, where the jury had no instruction on the lesser criminal intent of intent to tamper with a vehicle. Trial counsel was forced to abandon his theory and argue that appellant did not have any intent to “steal” (an intent that is not required by Vehicle Code section 10851) because he merely intended to escape a beating from Mr. V. (RT 178-180.) Trial counsel was simply not able to present an argument that appellant had a distinct, lesser intent, which was well-supported by the evidence and which did not encompass an intent to take or drive Mr. V’ car. Thus, appellant was deprived of his right to effective assistance of counsel, a closing argument on the defense theory, and to hold the prosecution to its burden of proof.
E. Reversal is Required.
Conde v. Henry, supra, 198 F.3d at 741, indicated that the instructional error in that case, combined with defense counsel’s inability to present a closing argument on the defense theory, amounted to structural error, requiring reversal without resort to harmless error analysis. Appellant contends that his convictions must be reversed for the reasons set forth in Conde: “[t]he very framework within which the trial proceeded  prevented the defendant from presenting his theory of the defense and prevented the jury from determining whether all of the elements of [the charged crime] had been proved beyond a reasonable doubt.” (Ibid.)
Even if the harmless error test for a trial error violating federal constitutional guarantees (Chapman v. California (1967) 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705]) or for a trial error arising only under California law (People v. Watson (1956) 46 Cal.2d 818, 836) is applicable, appellant’s conviction must be reversed.
There is a reasonable probability that the jury would have returned a different verdict had it been instructed on the lesser included offenses. Trial counsel could have presented a very persuasive closing argument that the prosecution had only proved that appellant had the intent requisite to tampering and/or malicious mischief to a vehicle. The prosecution’s evidence with respect to appellant’s intent while he was taking and driving Mr. V’ car was entirely circumstantial and was weak. The evidence relating to the events that occurred before appellant jumped in the car pointed inexorably to an impulsive act, committed out of self-protection and/or drunkenness, rather than any prior intent to take the car, and the prosecution did not even attempt to argue otherwise. (RT 169-174.) The evidence further strongly supported a finding that appellant’s intent did vacillate, without any particular focus, as he first drove away from the fight, drove back immediately, and continued on in an instantaneous decision. Given that Mr. M was lying on the ground directly under Mr. V, the prosecution did not argue any alternative theory for appellant’s driving away and then returning. (RT 80-83, 158-163, 169-175, 185-190.) Moreover, the vandalism of the car occurred a very short distance away, and the jury may well have concluded that appellant never formed the specific intent to deprive Mr. V of the car, and that after some confusion in driving the car away, he stopped and decided to tamper with it. (RT 96-99.) In sum, the trial court’s error effectively precluded defense counsel from presenting an entirely viable defense, and it is reasonably possible that the jury would have accepted the defense that the prosecution had not proved the specific intent requisite to Vehicle Code section 10851 beyond a reasonable doubt, instead of that requisite to Vehicle Code sections 10852 and/or 10853.
Footnote 1: After the trial court ruled that Vehicle Code section 10852 was a lesser related, rather than lesser included, offense and therefore that it could not give the requested instruction, trial counsel appeared to agree that Vehicle Code section 10852 was a lesser-related offense. (RT 122.) Trial counsel’s legal mistake has no affect on the trial court’s duty to instruct on lesser included offenses, sua sponte or upon request. The trial court must instruct on all lesser included offenses warranted by the evidence, even if defense counsel never requests the instruction due to mistake or strategy: “[T]he jury must be allowed to ‘consider the full range of possible verdicts–not limited by the strategy, ignorance, or mistakes of the parties,’ so as to ‘ensure that the verdict is no harsher or more lenient than the evidence merits.’” (People v. Breverman (1998) 19 Cal.4th 142, 160, quoting People v. Wickersham (1982) 32 Cal.3d 307, 324.)
Footnote 2: The “nor shall” language of Penal Code section 10853 raises the question, as it did at trial, whether the specific intent identified in the first clause of the statute applies to all three of the acts proscribed. (RT 126-127.) Appellant believes the specific intent applies only to the first clause, but whether it does or not, the offense is a lesser, necessarily included offense in this case, and therefore that this Court need not decide the issue. Appellant notes that if the legislature had meant to proscribe the two alternative acts only where it was proved the person had the intent to commit malicious mischief, injury or other crime, the legislature could have easily formulated the statute in a manner that would clearly do so; it could have used the word “or,” rather than the term “nor shall any person.” (See, e.g., People v. Schnook (1997) 16 Cal.4th 1210, 1216 [adopting interpretation of statute based on its clear language, where legislature could have used alternative language if it had alternative intent]; In re Jerry M. (1997) 59 Cal.App.4th 289, 297, fn. 5 [refusing to adopt interpretation of statute which legislature has shown it could clearly express by use of alternative language].) Regardless, one can imagine a scenario in which a person could violate Vehicle Code section 10851 without committing the two alternative acts identified in Vehicle Code section 10853. This is because both of those alternative acts must be committed while the vehicle is “at rest and unattended,” and one could presumably drive and take a vehicle while it was attended.
Footnote 3: Vehicle Code section 10853 is a specific intent crime, because it refers to an “‘intent to do some act [further than that proscribed] or achieve some additional consequence.’” (People v. Reyes (1997) 52 Cal.App.4th 975, 982, quoting People v. Whitfield (1994) 17 Cal.4th 437, 449.)
Footnote 4: See also Richmond v. Embry (10th Cir. 1997) 122 F.3d 866, 871 [the right to present defense evidence arises under the Sixth Amendment right to compulsory process and the Fourteenth Amendment right to due process].