Filed 6/23/14 P. v. Majidi CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,                                                          B248279

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. LA073107)
         v.

MOHAMMAD MAJIDI,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County.
Michael Jesic, Judge. Reversed in part and affirmed in part.


         Marta I. Stanton, 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, Margaret E. Maxwell and
Tasha G. Timbadia, Deputy Attorneys General, for Plaintiff and Respondent.
                  ___________________________________________________
       A jury convicted defendant Mohammad Majidi of grand theft auto (Pen. Code,
§ 487, subd. (d)(1))1 (count 1), fraudulently writing a nonsufficient funds check (§ 476a,
subd. (a)) (count 2), second degree burglary (§ 459) (count 3), and the unlawful taking of
a vehicle (Veh. Code, § 10851, subd. (a)) (count 4).
       The trial court sentenced defendant to county jail for the midterm of two years on
count 1. Defendant was sentenced to concurrent sentences of the midterm of two years
on counts 2 through 4, which sentences were stayed pursuant to section 654.
       Defendant appeals on the grounds that (1) evidence of other crimes was prejudicial
and deprived him of his right to due process and a fair trial, and (2) it was error to convict
him of both grand theft auto and the unlawful taking of a vehicle based on the same act.
The People concede the second point, and we accordingly reverse the judgment in
count 4. Otherwise, we affirm.
                                          FACTS
       Anthony Lucas is a salesperson at Keyes Hyundai in Van Nuys. On
November 23, 2012, he assisted defendant with the test drive and ostensible purchase of a
pre-owned Hyundai Sonata. In connection with the transaction, defendant filled out and
signed a credit application, providing information such as his name, address, references,
and monthly income.
       Lucas gave the application to the sales manager, Darin Lawrence, to complete a
credit check. Lawrence determined that a $5,000 down payment was required for
defendant to purchase the car. Defendant agreed to the terms and was taken to the
finance department to meet with Fedy Giragosian, the finance manager. Defendant
reviewed and signed purchase documents and provided Giragosian with a personal check
for $5,000 from a Citibank account. Giragosian observed defendant to be very
cooperative and easygoing. He accepted every option offered and signed all the
agreements immediately, as if he wanted to finish with the purchase as soon as possible.



1      All further statutory references are to the Penal Code unless otherwise stated.


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       When defendant exited Giragosian’s office, Lucas informed him that he needed to
follow defendant to his bank to get copies of bank statements and a certified check for the
$5,000 down payment. Defendant agreed, and Lucas affixed the registration papers to
the windshield of the Hyundai. Defendant got into the Hyundai. As Lucas got into
another car to follow him, defendant exited the driveway rapidly and drove away at a fast
rate of speed. Lucas was unable to keep up. He drove to the nearest two Citibank
locations to see if defendant had gone straight there to get the necessary bank documents.
       Lucas did not find defendant. He went back to the dealership and informed his
manager, Lawrence, that he was unable to get a certified check and bank statements from
defendant because he “took off.” Lucas tried calling the phone number that defendant
listed on his credit application, but another person answered and said he was using
defendant’s cell phone. Lucas asked the person to have defendant call the dealership
right away, and said it was “important.” Defendant never called.
       Lawrence thereafter instructed the dealership’s business manager to deposit the
personal check that defendant provided in connection with the transaction. The check
was returned from the bank as being drawn on a closed account. Defendant did not make
any monthly payments on the car.
       Anthony Diruscio, a senior investigator for Citibank, was asked by the Los
Angeles Police Department to investigate the status of defendant’s checking account at
the time he wrote the personal check to the dealership in November 2012. Diruscio
determined that the account was closed in August 2012. The amount of money deposited
into the account before it was closed was $25.
       William Wilson, owner of Pacific National Attorney Services, was engaged by the
dealership in November 2012 to recover the Hyundai Sonata. Wilson learned that
defendant was living in the car and that he frequented a local Starbucks. In January 2013,
Wilson was staking out the Starbucks when he saw the Hyundai parked outside. He then
observed defendant walking toward the car. When defendant saw Wilson, he turned
around and walked the other direction. Defendant looked around to see if Wilson was
following him, and when he saw that Wilson was not, he walked back toward the car.

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When Wilson then approached defendant, defendant ran across the street through moving
traffic. Eventually, Wilson caught up with defendant and told him they needed to talk.
Wilson told defendant that he should go with Wilson to the dealership so they could
resolve the situation involving defendant’s bad check. After talking with defendant for a
while, Wilson felt he had convinced defendant to drive the Hyundai to the dealership.
But in case defendant tried to flee, Wilson attached a magnetic tracking device to the
Hyundai.
       Wilson got into his car to follow defendant to the dealership. Defendant quickly
drove away, almost causing an accident. Wilson was unable to follow defendant, but was
able to track him using the device. After locating and observing the Hyundai for a time,
Wilson spoke to defendant again and convinced him to drive to the dealership to deal
with payment issues. This time, defendant actually went to the dealership. He was
arrested soon after he arrived.
       Los Angeles Police Department Detective Kara Clifford later spoke with
defendant at the Van Nuys jail. Defendant admitted to her that he wrote a personal check
for $5,000 to the dealership. He said that he believed he had two to three thousand
dollars in the account when he wrote the check. Defendant had been out of work for
about seven years, was living in the car, and did not have money to pay for it. He said
that he was expecting family in Iran to send him $10,000.
       At trial in this matter, Wolfgang Nopper, finance manager at Keyes Toyota in Van
Nuys, testified that defendant came to the Toyota dealership in April 2012 to purchase a
used Toyota Camry. Defendant was asked to provide documentation such as bank
statements but did not do so. He did provide two checks totaling $5,000. Nopper tried to
deposit one of the checks, but it was returned due to a closed account. Keyes Toyota
tried to contact defendant but could not reach him. Eventually, the Toyota in the
possession of defendant was recovered and returned to the Toyota dealership.
       Defendant testified on his own behalf. He stated that he had attempted to buy cars
at other dealerships but was unable to do so because of poor credit. He needed a car for
his job. All the information he gave to Keyes Hyundai was true. At the time of the

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Hyundai purchase, he had five different Citibank accounts. He did not know that the
account from which he wrote the check was closed. He knew that there were insufficient
funds, but he thought that before the time the check was deposited, he could transfer and
deposit money into the account. He intended to make the payments on the car.
                                      DISCUSSION
I. Other crimes evidence
       Defendant argues that the trial court erred by allowing the prosecution to introduce
other crimes evidence pursuant to Evidence Code section 1101, subdivision (b). He
contends that the testimony relating to his experience with Keyes Toyota in April 2012
should not have been admitted.
       Defendant’s attorney objected to introduction of the evidence at trial. The
prosecution argued that the evidence was admissible to show motive. The trial court
admitted the evidence for the limited purpose of showing intent, and instructed the jury
accordingly.
       Evidence Code section 1101, subdivision (b), permits the admission of evidence
that a person committed a crime or other act “when relevant to prove some fact (such as
motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or
accident . . .) other than his or her disposition to commit such an act.” Such evidence
may not be introduced for the purpose of proving that a person has bad character or a
propensity to commit a criminal act. (People v. Whisenhunt (2008) 44 Cal.4th 174, 203.)
We review the trial court’s decision allowing evidence of other crimes for an abuse of
discretion. (Ibid.)
       “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.’” (People v. Cole (2004) 33 Cal.4th 1158, 1194.) In this
case, defendant’s prior conduct was remarkably similar to the charged offense. In both
instances, defendant sought to unlawfully obtain a car by presenting checks written on
closed accounts. Neither dealership was able to contact defendant based on the
information he provided, and both had to resort to repossession to recover the cars.

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Defendant’s ploy of providing a deficient personal check in the first instance was
sufficiently similar to the charged offense to support the inference that he intended to
unlawfully deprive the Hyundai dealership of the vehicle and knew that the account upon
which the check was drawn had insufficient funds.
       Defendant’s reliance on People v. Thompson (1980) 27 Cal.3d 303 is misplaced.
The Supreme Court in that case found that evidence of a prior robbery committed by the
defendant was not sufficiently similar to the charged offense, in which the defendant
rejected proffered valuables before shooting a couple. (Id. at pp. 320-321.) In this
matter, there was hardly any substantive difference between defendant’s actions in the
prior incident and in the charged offense. Thus, evidence relating to the prior incident
was properly admitted to prove defendant’s intent.
       Furthermore, introduction of the evidence was not unduly prejudicial under
Evidence Code section 352. Evidence Code section 352 provides that a court may
exclude evidence “if its probative value is substantially outweighed by the probability
that its admission will . . . (b) create substantial danger of undue prejudice . . . .”
Evidence that would otherwise be admissible under Evidence Code section 1101,
subdivision (b), may be excluded pursuant to Evidence Code section 352. (People v.
Thompson (1988) 45 Cal.3d 86, 109.) The evidence regarding defendant’s experience at
Keyes Toyota was highly probative to the issue of intent, and the evidence was presented
in a nonprejudicial manner, with the pertinent testimony occupying only a short portion
of the trial. There is no reason to conclude that the jury based its verdict primarily on
evidence of the other incident, when there was ample evidence directly relating to the
charged offenses to support the verdict.
II. Unlawful taking of a vehicle
       Defendant argues that his conviction in count 4 for unlawful taking of a vehicle
must be reversed because it is necessarily included within the conviction in count 1 for
grand theft auto.
       As the People concede, unlawfully taking a vehicle is a lesser included offense of
grand theft auto. (People v. Buss (1980) 102 Cal.App.3d 781, 784.) A defendant may

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not be convicted of both an offense and a lesser included offense. (People v. Ortega
(1998) 19 Cal.4th 686, 692.)
       The record shows that the convictions for grand theft and taking of an automobile
were based on the same act—the theft of the Hyundai in November 2012. Accordingly,
we order the conviction for the lesser offense, violation of Vehicle Code section 10851,
subdivision (a), reversed. Since the sentence in count 4 was stayed, there is no need for
remand.
                                     DISPOSITION
       The judgment in count 4 is reversed. In all other respects, the judgment is
affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.


                                          BOREN, P.J.
We concur:


       ASHMANN-GERST, J.


       FERNS, J.*




_______________________________________________________________

*     Judge of the Los Angeles Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.

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