Filed 11/13/14 P. v. Bernal CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E057853

v.                                                                       (Super.Ct.No. SWF1200272)

SERGIO BERNAL,                                                           OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of Riverside County. Mark Mandio, Judge.

Affirmed.

         Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for

Defendant and Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, and Peter Quon, Jr., Quisteen S.

Shum and Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent.




                                                             1
                                     I. INTRODUCTION

       Defendant and appellant Sergio Bernal drove a stolen car. When a police officer

attempted to stop the car for a code violation, defendant sped away, parked the car in an

apartment complex parking lot, and walked away. As officers attempted to apprehend

him, he ran away. When he was caught, he physically struggled with an officer before

being subdued. He then gave a false name to one of the officers.

       Defendant was charged with unlawfully taking or driving a vehicle (count 1; Veh.

Code, § 10851, subd. (a)) (hereafter section 10851), receiving a stolen vehicle (count 2;

Pen. Code, § 496d, subd. (a)), providing false identification to an officer (count 3; Pen.

Code, § 148.9, subd. (a)), and resisting arrest (count 4; Pen. Code, § 148, subd. (a)(1)).

       At trial, defendant testified that he bought the car and did not know it was stolen.

He said he received a bill of sale from the seller and produced the document at trial. He

explained that he ran from police because he believed he had violated parole and wanted

to “stay out.”

       After a recess taken during the prosecution’s cross-examination of defendant,

defendant announced that he was “done” and would not testify further. As a

consequence, the court struck defendant’s testimony regarding the bill of sale, excluded

the bill of sale itself, and told the jurors that they could consider defendant’s refusal to

testify in evaluating his credibility.

       The jury convicted defendant on counts 1, 3, and 4; count 2 (receiving stolen

property) was dismissed in the interests of justice. In a bifurcated court trial, defendant


                                               2
admitted allegations of certain prison priors and a prior strike, and the court found the

allegations true. He was sentenced to nine years in prison.

       Defendant makes the following contentions on appeal: (1) the prosecutor’s cross-

examination of defendant regarding his prior convictions exceeded the bounds of a

pretrial ruling and constituted misconduct; (2) the trial court erred in striking defendant’s

testimony regarding the bill of sale; (3) the court erred in refusing to give a requested

instruction on the claim-of-right defense; and (4) the evidence is insufficient to sustain

the section 10851 conviction.

       We agree with defendant’s argument regarding the claim-of-right instruction, but

conclude that the error was harmless. We reject defendant’s other contentions. We

therefore affirm the judgment.

                                 II. FACTUAL SUMMARY

A. Prosecution Evidence

       In the early morning of January 19, 2012, Juan Fuentes’s green Honda Accord was

parked in front of Fuentes’s house in Hemet. Sometime between 3:00 a.m. and 4:00 a.m.

that morning, Fuentes started the engine of the Accord to warm it up before going to

work. As the car idled, Fuentes walked back into his house to get coffee. He heard the

car door slam. Fuentes stepped outside and saw his car being driven away. He could not

see the person driving the car. Fuentes reported the theft to police.

       Three days later, in the afternoon of January 22, 2012, Hemet Police Officer Bryan

Anderson was in his patrol car driving westbound on Latham Avenue in Hemet. He saw


                                              3
defendant driving eastbound on Latham Avenue in a green Accord. The Accord did not

have a front license plate. After defendant passed him, Officer Anderson made a U-turn

to make an “enforcement stop” of the vehicle. He did not activate his siren or overhead

lights.

          The officer saw defendant accelerate through a four-way stop at the intersection of

Latham Avenue and Santa Fe Street without stopping. Defendant turned left

(northbound) onto Santa Fe Street without using his left turn signal. At that point,

Officer Anderson lost sight of the car. He gave police dispatchers a description of the

car.

          A dispatcher notified Officer Anderson that the car had been seen pulling into an

apartment complex on Santa Fe Street, and that the occupants got out of the car and were

walking east on Latham Avenue. Soon afterward, Officer Anderson saw defendant and

another person walking into an alleyway adjacent to an apartment complex near the

intersection of Santa Fe Street and Latham Avenue. This apartment complex was not the

complex where the Honda had been parked. When defendant and his companion saw the

officer, they turned and ran “as fast as they could” into the apartment complex. Around

that time, Officer Anderson received word from dispatch that the Accord had been

reported stolen.

          Other officers arrived and a perimeter was established around the apartment

complex defendant was seen entering. Defendant was spotted running away from the

apartment building. Officer Anderson and two other officers chased after defendant and


                                               4
ordered him to stop. Defendant ran into a hobby store where he was apprehended after a

struggle with one of the officers.

          Sergeant Daniel Reinbolt was in a police car with defendant. Defendant told

Sergeant Reinbolt his name was “Mario Bernal” and his birth date was “October 15,

1927.” When the sergeant questioned the year of his birth, defendant said, “’77. I meant

’77.” When Sergeant Reinbolt checked police records using that name and birth date,

there was no match. Later, when he searched using only the last name “Bernal,” he

found defendant’s real name and birth date of October 27, 1977.

          Defendant told Sergeant Reinbolt that he ran from the officers “because every time

he gets contacted by the police he gets beat up.” He also said he ran because he wants to

be with his son, not in jail.

          When defendant was told he would be charged with driving a stolen vehicle and

fleeing from the officers, he told Sergeant Reinbolt: “I don’t know anything about that.”

He did not tell the officer that he had purchased the vehicle or that he did not know it was

stolen.

          A search of defendant turned up keys, but they were never checked to see if they

fit the stolen Accord. He did not have with him any record of car title, registration, or a

bill of sale for the car.

B. Defense

          Defendant testified that he was asleep at his mother’s house at the time the Accord

was stolen. That morning, he awoke around 8:45 a.m., helped his mother with yard


                                               5
work, then went to work with a relative on a home remodeling project. That afternoon,

he and a friend went to a home improvement store to buy paint. In the parking lot of the

store, defendant saw a 1993 green Honda Accord with a “for sale” sign that read, “$1,000

OBO.” Two people, who identified themselves as Ruben and Olivia Moreno, were

standing near the car.

       Ruben told defendant his uncle had given him the car. There was nothing about

the appearance of the car to cause defendant to think the car might be stolen. Ruben had

the “[n]ormal Honda keys” to the car. There were no broken windows, and the locks and

ignition did not appear to be damaged.

       Defendant and Ruben reached an agreement whereby defendant would buy the car

for $800; he would pay $400 at that time in exchange for immediate possession of the car

and a bill of sale;1 he would pay the remaining $400 on February 2, 2012, when Ruben

would deliver the car’s pink slip to him. He believed the transaction was legitimate.

       Defendant gave Ruben $400; Ruben wrote out a bill of sale, gave it to defendant,

and gave him the car. Defendant drove the Morenos to his mother’s house to show them

where to complete the transaction on February 2. Defendant then drove the Morenos to

their apartment complex on Santa Fe Street—the same complex where defendant left the

car shortly before being arrested.




       1 As explained below, the court subsequently excluded and struck all evidence
regarding the bill of sale.

                                            6
       On January 22, 2012, defendant drove to the Morenos’ apartment complex to talk

to Ruben about getting the pink slip to the car before February 2. He did not know that a

police vehicle was following him and did not try to get away from the officer. Defendant

parked the car at the Morenos’ apartment complex. He knocked on their apartment door,

but there was no answer. He decided to walk to a friend’s apartment nearby. He left the

car parked at the Morenos’ apartment complex so that they would see it and wait for

defendant to return.

       Defendant explained that he ran when he saw the police officer because he

believed there was a warrant out for him “for absconding,” and that he wanted to “stay

out” to be with his family and son. He was also concerned because he has had a “lot” of

“negative experiences” with police officers.

       Defendant admitted giving Sergeant Reinbolt a false name. He said he did so

because he did not want to go to jail. He believed he was being arrested for a parole

violation. When Sergeant Reinbolt told him the Accord had been stolen, defendant

responded: “‘I don’t know. I don’t know what you’re talking about.’”

       At trial, defendant produced the bill of sale for the Accord that Ruben had given to

him. He explained that prior to his arrest he had given the bill of sale to his girlfriend for

safekeeping. While in jail awaiting trial, he wrote to his girlfriend to get the bill of sale.

She mailed it to him, and he gave it to an attorney.




                                               7
C. Defendant’s Decision to Stop Cross-examination

       After the prosecutor cross-examined defendant for approximately 45 minutes, a

lunch recess was taken. At the end of the recess, defendant informed the court that he

was “done” and would not testify further. The court and counsel then discussed how the

court should respond. The prosecutor argued that the court should strike defendant’s

testimony in its entirety. The prosecutor expressed particular concern about the fact that

he had not yet gone “deep into” questioning defendant about the bill of sale. Defense

counsel requested that the jurors be informed of defendant’s decision and that they could

consider that fact in determining defendant’s believability, but that defendant’s testimony

be allowed to stand.

       The court decided to inform the jurors that defendant had chosen not to continue

testifying, and that they could consider that choice in determining whether and to what

extent to believe defendant’s testimony, but that it did not necessarily destroy his

credibility. The court also excluded the bill of sale and struck defendant’s testimony

relating to the bill of sale. The court explained that this result “is a balanced alternative.

It still leaves the defendant with some opportunity to present his defense under the

circumstances, but allows the jury to draw . . . [a] negative inference of credibility from

his refusal to continue to testify and strikes, what, for him, is a key piece of evidence . . .

because [the prosecutor has not] had a chance to fully cross-examine on the issue.”

       The court then instructed the jury as follows: “The defendant, Mr. Bernal, has

refused to continue to testify. Because Mr. Bernal has refused to testify further, the


                                               8
People, through their representative, Mr. Mason, have been deprived to [sic] the right for

a full and fair cross-examination of Mr. Bernal’s testimony. Therefore, I am ordering

that the bill of sale and Mr. Bernal’s testimony related to the bill of sale be stricken from

the record. You are not to consider the bill of sale or Mr. Bernal’s testimony relating to

the bill of sale for any purpose. Furthermore, you may consider Mr. Bernal’s refusal to

testify further in determining the believability of the rest of his testimony.”

D. Rebuttal

       In the prosecution’s rebuttal case, an investigator testified that he spoke with the

owner of the apartment complex where the Morenos purportedly lived and with five of

the eight tenants of the complex. The investigator found no indication that Ruben or

Olivia Moreno ever lived at that complex.

       An audio recording of a police interview with defendant was played to the jury.

At the outset, defendant said his birthday was October 15, 1977. The officer

subsequently discovered defendant’s real name and his birth date of October 27, 1977.

                                     III. DISCUSSION

A. Prosecutorial Misconduct

       Defendant contends the prosecutor’s manner of questioning defendant about his

prior convictions exceeded the bounds of a pretrial ruling and constituted misconduct.

We find no error.




                                              9
       Defendant refers to the following portions of the prosecutor’s cross-examination:2

       “Q [PROSECUTOR]: Sir, you’ve been convicted of several crimes in the past;

isn’t that right?

       “A That’s right.

       “Q These are crimes that show a lack of honesty on your part, aren’t [they]?

       “A Never.

       “[DEFENSE COUNSEL]: Objection. Motions in limine. I think we covered this.

       “THE COURT: You can answer that question.

       “Q [PROSECUTOR]: You can answer that question, sir.

       “A I’ve never been convicted of receiving stolen property or GTAs.

       “Q That’s not what I asked you, sir, is it?

       “A You asked me if I’ve been convicted of this crime.

       “Q I asked you if the crimes you’ve been convicted of involve crimes that show a

lack—that show you’re a dishonest person?

       “[DEFENSE COUNSEL]: Objection. That’s speculation, and I don’t think my

client can testify to that. It’s argumentative as well.

       “THE COURT: All right. I’m going to—you asked the previous question.

       “[Defendant], I’m going to ask you to answer the previous question. I’m going to

reread it.


       2  Although lengthy, we include all the excerpts relied upon by defendant because
the tenor of the questioning is not adequately reflected in smaller parts.

                                              10
       “These are crimes that show a lack of honesty on your part, aren’t they?

       “[DEFENDANT]: Yes.

       “Q [PROSECUTOR]: Now, you were convicted January 22, 1998, of a crime

that shows lack of honesty on your part; isn’t that correct?

       “A On what date?

       “Q January 22, 1998, is when you committed the crime that you were convicted

of; is that correct?

       “A Yes. [¶] . . . [¶]

       “Q [PROSECUTOR]: Sir, prior to the last few questions that I asked, you said

you’d never been convicted of a theft crime; is that correct?

       “A Correct.

       “Q But on January 4, 2005, you committed a [Penal Code section] 459, second,

which is entering a residential building with the intent to commit a theft or a felony

therein; is that correct?

       “[DEFENSE COUNSEL]: Objection. Misstates the evidence, I think, as to

residential.

       “[PROSECUTOR]: I meant commercial. I apologize. Not residential.

Commercial.

       “THE COURT: All right.

       “[DEFENDANT]: That’s on—be 171 North Palm. That’s my sister’s house.

There was nothing missing, nothing. I didn’t want them getting involved. I admitted I


                                             11
opened the door. I was asleep on the couch. And, uh, the police chase me there, too. I

had a warrant. And nothing was missing. And that’s where Steve lives. I can give you

guys the number, and that’s where—

       “Q What did you give us?

       “A 171 North Palm. That’s the address.

       “Q When did you give that to me.

       “A To my lawyer.

       “Q Okay. Steve what?

       “A Brown.

       “Q All right. Steve Brown, you still know him?

       “A I was remodeling before I got arrested, that house.

       “Q Sir, I asked you if you still know him?

       “A Yes.

       “Q All right. I know you have a lot to say. If you want to say it, I’ll sit down in

this chair and let you talk. You can get if off your chest, if that’s what you’d like to do.

Is that what you want?

       “A Well, you’re trying to—

       “[DEFENSE COUNSEL]: Objection. Improper—that’s not a question. It’s an

argument. It’s improper form of a question.

       “THE COURT: Sustained.




                                             12
        “Also, you’re not going to sit down. You’re going to use question-and-answer

format.

        “You’re going to try to answer these questions to the best of your ability and

proceed in the ordinary course.

        “Go ahead.

        “Q [PROSECUTOR]: Sir, you still know Steve; right?

        “A Yes.

        “Q That’s the person you said you were working for; is that correct?

        “A Yes.

        “Q We will get back to that in a minute. I want to continue. I want to talk to you

about these other crimes. You said [o]n August 29, 2002, you committed a crime that

shows lack of honesty on your part; is that correct?

        “A Yes.

        “Q You said, ‘yes,’ but you shook your head left and right as though you mean

‘no’?

        “A Because I don’t—I don’t know. What crime was that?

        “Q Would looking at a copy of your CII or your rap sheet refresh your

recollection?

        “A Can you just tell me the Penal Code or—

        “[PROSECUTOR]: Your Honor, I’m not sure how to proceed here.

        “THE COURT: You can tell him the Penal Code section.


                                             13
       “Q [PROSECUTOR]: [Penal Code section] 11379[, subdivision] (a),

transportation of methamphetamine, sir.

       “A Yes.

       “[DEFENSE COUNSEL]: Your Honor, I’d object as to the convictions coming

in, code sections.

       “THE COURT: Well, overruled in this instance. Okay.

       “Q [PROSECUTOR]: Does that refresh your recollection?

       “THE COURT: Let me explain the rules for you.

       “You’re welcome to look at the piece of paper he’s got if that’s going to help you.

       “[DEFENDANT]: Yes.

       “THE COURT: You want to look at that?

       “[DEFENDANT]: Can I?

       “THE COURT: Yes, you can.

       “[DEFENDANT]: What does my past got to do with now?

       “[PROSECUTOR]: Sir, there’s no question pending.

       “Q [PROSECUTOR]: You don’t understand how if someone has done something

in the past that shows they lied that doesn’t reflect at all on whether they will tell the truth

now?

       “[DEFENSE COUNSEL]: Objection. Argumentative.

       “THE COURT: Overruled.

       “Q [PROSECUTOR]: Is that what you’re telling the jury?


                                              14
       “A People shouldn’t lie, but people do change.

       “Q We’re not talking about people. We’re talking about you, aren’t we?

       “A Yes.

       “Q We’re talking about what you did in the past?

       “A Yes. Yes.

       “Q We’re talking about what you did in this case; right?

       “A Right.

       “Q We’re talking about how you lied in this case?

       “[DEFENSE COUNSEL]: Objection. Argumentative. Assumes facts not in

evidence.

       “THE COURT: Overruled.

       “Q [PROSECUTOR]: You’ve admitted you lied about your name; isn’t that

correct?

       “A Yes.

       “Q You’ve committed crimes that show that you’re not an honest person; isn’t

that correct?

       “A I shouldn’t have lied about my name, no.

       “Q I’m not talking about lying about your name. I’m talking about these crimes

you committed in the past over the last fourteen years. That’s what I’m talking about. So

let me ask you, sir, do you think that reflects on your credibility?




                                             15
       “[DEFENSE COUNSEL]: Objection. Calls for improper opinion.

Argumentative.

       “THE COURT: Overruled.

       “Q [PROSECUTOR]: You may answer.

       “A What was the question again?

       “Q Do you think what you’ve done in the past to where this jury has heard that

you lied, where this jury has heard you committed crimes that show you were dishonest,

do you think that reflects on your credibility?

       “A Yes.

       “Q Would you agree that someone who lies about something, lies to get out of

trouble, can’t be trusted?

       “[DEFENSE COUNSEL]: Objection. Argumentative.

       “THE COURT: All right. Sustained. I’m going to ask you to just proceed with

the convictions. [¶] . . . [¶]

       “Q . . . Now, let’s go back to, you said that [o]n August 29, 2002, you were

convicted of [Penal Code section] 11379; is that correct?

       “A Yes.

       “Q Transportation?

       “A Yes.

       “Q Is that a crime where you don’t really do that out in the open?

       “A Is that a crime—out in the open?


                                             16
       “[DEFENSE COUNSEL]: Objection. This has been ruled on, your Honor.

       “THE COURT: All right. Sustained.

       “Q [PROSECUTOR]: January 24, 2004, you committed another crime that calls

into question your ability to be honest and truthful?

       “A Yes.

       “Q January 4, 2005, you committed the [Penal Code section] 459, second, another

crime that calls into question your ability to be truthful?

       “A Yes. [¶] . . . [¶]

       “Q [PROSECUTOR]: Sir, would you like me to give you specific examples of

specific crimes that you committed where you lied about what you did?

       “[DEFENSE COUNSEL]: I’m objecting. [Evidence Code section] 352. Motions

in limine.

       “THE COURT: This is [Evidence Code section] 352. Move to the next subject.

       “Q [PROSECUTOR]: Have you committed—have you lied to get out of trouble

in the past?

       “[DEFENSE COUNSEL]: Asked and answered. Same objection.

       “[PROSECUTOR]: I believe, given the answers he’s given—

       “THE COURT: Overruled.

       “You can answer.

       “[PROSECUTOR]: I want to clarify. I want this jury to know.




                                              17
       “THE COURT: Wait. Stop. I’ll allow the [question] to be answered, and you

asked a different one. We’re going to ask the question you just asked. I’m going to ask

the question be read back, please.

       “(The record was read by the court reporter.)

       “THE COURT: That’s the question.

       “Have you lied to get out of trouble in the past?

       “[DEFENDANT]: I honestly don’t remember.

       “Q [PROSECUTOR]: Would looking at reports from the crimes you committed

help refresh your recollection?

       “[DEFENSE COUNSEL]: Your Honor, objection, for the reasons given before.

[Evidence Code section] 352. Motions in limine.

       “THE COURT: I’m going to sustain this on [Evidence Code section] 352.”

       1. Motion in Limine Regarding the Use of Defendant’s Prior Convictions for

Impeachment

       Prior to trial, the court and counsel discussed the prosecution’s anticipated use of

defendant’s prior convictions for impeachment. The court specified which prior

convictions could be used. (This ruling is not an issue on appeal.) In addition, there was

discussion as to what counsel could say about the prior convictions and how the court




                                             18
would instruct the jury on the matter. The court indicated that it would instruct with

CALCRIM NO. 316.3

       As for the manner of questioning, defendant contends that an “apparent

agreement” was reached whereby counsel would be limited to questioning defendant as

to whether he had suffered the specified prior convictions. We disagree. Neither the

citations to the record provided by defendant nor a reading of the entire transcript of the

hearing support such an agreement. Although the court indicated that counsel should not

inquire about “the facts of the prior convictions” or refer to the crimes as “crimes of

moral turpitude,” the record does not reveal a more explicit ruling regarding the form or

manner of questioning or any agreement among the parties. In the absence of a clear

ruling on this point, we reject defendant’s argument that the prosecution exceeded the

bounds of any ruling or agreement on the matter.

       2. Prosecutorial Misconduct

       In addition to arguing that the prosecutor’s questions exceeded the bounds of an

agreement or ruling made during the discussion regarding motions in limine, defendant

contends that the prosecutor’s conduct violated his right to due process under the United

States Constitution, as well as state law.




       3  CALCRIM No. 316, as given in this case, provides: “If you find that a witness
has been convicted of a felony, you may consider that fact only in evaluating the
credibility of the witness’s testimony. The fact of a conviction does not necessarily
destroy or impair a witness’s credibility. It is up to you to decide the weight of that fact
and whether that fact makes the witness less believable.”

                                             19
       The standard for reviewing claims of prosecutorial misconduct is well-settled:

“‘Under California law, a prosecutor commits reversible misconduct if he or she makes

use of “deceptive or reprehensible methods” when attempting to persuade either the trial

court or the jury, and it is reasonably probable that without such misconduct, an outcome

more favorable to the defendant would have resulted. [Citation.] Under the federal

Constitution, conduct by a prosecutor that does not result in the denial of the defendant’s

specific constitutional rights—such as a comment upon the defendant’s invocation of the

right to remain silent—but is otherwise worthy of condemnation, is not a constitutional

violation unless the challenged action “‘so infected the trial with unfairness as to make

the resulting conviction a denial of due process.’”’ [Citations.]” (People v. Dykes (2009)

46 Cal.4th 731, 760.)

       Defendant does not focus his argument on any particular questions; rather, the

claim is directed at the prosecutor’s decision “to couch all of his questions regarding the

prior convictions in accusatory terms suggesting that the prior conviction showed

[defendant] was a dishonest person, lied at the time of those offenses and was lying

during his testimony at this trial.” Defendant adds that the “questions posed by the

prosecutor were not only argumentative but also suggested by their form that the

prosecutor personally believed [defendant] was lying to the jury.” Finally, he contends

that the “tenor of the questioning and the questions permitted by the court were to

inflame the passions of the jury and created a situation in which [defendant’s] trial was

negatively and unfairly impacted.”


                                             20
       We agree that some of the prosecutor’s questions were improper or argumentative,

and that the prosecutor pursued the matter of defendant’s prior convictions to the point of

constituting an undue consumption of time. (See Evid. Code, § 352.) As the record

reveals, the trial court ultimately sustained defense counsel’s objections on these grounds

and told the prosecutor to “[m]ove to the next subject.”

       However, we reject defendant’s contention that the prosecutor’s questions were so

deceptive or reprehensible as to constitute misconduct under state law, or that they

deprived defendant of due process. Because defendant testified at trial, his veracity was

an issue in the case and the prosecution was permitted to ask defendant about his prior

felony convictions involving moral turpitude. (See People v. Castro (1985) 38 Cal.3d

301, 306; People v. Gray (2007) 158 Cal.App.4th 635, 641; Evid. Code, § 788.)

Although there is always a danger that the jury will misuse the evidence of prior

convictions for purposes other than impeachment, this risk is reduced when, as in this

case, the court instructs the jury with CALCRIM No. 316. (See People v. Gray, supra, at

p. 642.) As for the form or manner of questions to which an objection was made, the

impropriety was appropriately dealt with by the court’s responses to objections. If and to

the extent the court overruled an objection that should have been sustained, the questions

were not so egregious as to constitute misconduct under state or federal law. We

therefore reject defendant’s prosecutorial misconduct claims.




                                            21
B. Striking of Defendant’s Testimony Regarding Bill of Sale

       On appeal, defendant contends the court erred in striking his testimony regarding

the bill of sale he received from Ruben.

       As set forth above, after about 45 minutes of cross-examination, defendant refused

to testify further. After hearing the argument of counsel, the court informed the jurors of

defendant’s decision and instructed them (1) not to consider evidence of the bill of sale

and (2) they may consider defendant’s refusal to testify in determining the believability

of his testimony.

       The applicable legal principles and our standard of review are not disputed.

“Essential to a fair trial is that the accused have the opportunity to exercise his

fundamental, constitutional right to be heard in his own defense by testifying at trial.”

(People v. Reynolds (1984) 152 Cal.App.3d 42, 45 (Reynolds).) The defendant’s right to

testify “must be considered in light of the principle that ‘[w]hen a defendant voluntarily

testifies in his own defense the People may “fully amplify his testimony by inquiring into

the facts and circumstances surrounding his assertions, or by introducing evidence

through cross-examination which explains or refutes his statements or the inferences

which may necessarily be drawn from them.” [Citation.]’ [Citation.]” (Id. at p. 46.)

“[T]he right of cross-examination takes on added significance where the witness’s

credibility is of special significance to the proceedings.” (People v. Seminoff (2008) 159

Cal.App.4th 518, 527 (Seminoff).) When the defendant refuses to testify on cross-

examination, the prosecution is deprived of its right to subject defendant’s claims “to ‘the


                                              22
greatest legal engine ever invented for the discovery of truth,’ cross-examination.

[Citation.]” (Reynolds, supra, at p. 46.)

         A trial court that is presented with the situation of a testifying witness who refuses

to answer questions on cross-examination has discretion to strike the entirety of the

witness’s testimony, strike part of the testimony, or allow the trier of fact to consider the

witness’s failure to answer in evaluating the witness’s credibility. (Reynolds, supra, 152

Cal.App.3d at pp. 47-48; Seminoff, supra, 159 Cal.App.4th at p. 526; People v. Miller

(1990) 50 Cal.3d 954, 999.) In exercising its discretion, the trial court should consider

the witness’s motive in refusing to testify and the materiality of the testimony he or she

has refused to give. (Reynolds, supra, at pp. 47-48.) In addition, before employing the

“drastic solution” of striking the witness’s entire testimony, the court should consider

whether less severe remedies are available. (Ibid.; accord, Seminoff, supra, at p. 526.)

         The trial court’s ruling was not an abuse of its discretion. Initially, we note that

defendant did not explain his motive for not testifying. After a recess, the prosecutor

asked the court to take up an “issue that just came up.” The court then asked defendant:

“It’s my understanding, [defendant], you don’t want to testify any further?” Defendant

responded: “I’m done.” After some discussion among the court and counsel, the

following colloquy with defendant took place:

         “THE COURT: I should ask you one more question, [defendant]. [¶] If I order

you to take the stand and continue testifying, will you obey my order or disobey my

order?


                                               23
       “THE DEFENDANT: I’ll disobey your order.

       “THE COURT: You are refusing to testify further?

       “THE DEFENDANT: Yes, your Honor.

       “THE COURT: I’m going to actually—I’m going to order you to complete your

testimony. What is your response?

       “THE DEFENDANT: Well, I refuse—

       “THE COURT: You’re refusing?

       “THE DEFENDANT: —to take the stand, your Honor.

       “THE COURT: And testify.

       “THE DEFENDANT: I already testified, your Honor.”4

       Thus, this is not a case where, as in Reynolds, supra, 152 Cal.App.3d 42, the

defendant refused to answer questions because doing so would implicate others and make

him a “snitch.” (Id. at p. 45.) Nor does this case involve a witness who, like the witness

in Seminoff, supra, 159 Cal.App.4th 518, testified for the defense at a suppression

hearing, then invoked the Fifth Amendment and refused to answer specific questions on

the ground the answers would incriminate her. (Id. at pp. 524-525.) Here, it appears that

defendant had simply had enough of testifying, and declared he was “done.” Needless to




       4  By the time this colloquy took place, the court had already indicated, with
defendant present, that it would strike the evidence of the bill of sale and instruct the jury
that it may consider the refusal to testify in evaluating defendant’s believability.
Defendant was thus aware of the likely consequences of his decision when he reiterated
his refusal to testify.

                                              24
say, this is not a very good reason. Consideration of defendant’s motive for not

testifying, therefore, does not weigh in his favor.

         Attempting to evaluate the materiality of the testimony defendant refused to give

in this case is a somewhat speculative endeavor. Unlike other cases where the witness

refused to answer specific questions (see, e.g., Reynolds, supra, 152 Cal.App.3d at p. 45

[refusal to answer question calling for names of accomplices]; Seminoff, supra, 159

Cal.App.4th at p. 526 [refusing to answer question asking about her intent to sell

marijuana]), the record does not indicate what specific questions the prosecutor planned

to ask. However, the record does support the prosecutor’s assertion that he had not gone

“deep” into cross-examination regarding the bill of sale. Shortly before the lunch recess,

the following colloquy occurred:

         “[PROSECUTOR]: Now, let’s go back to when you say that you got this car. [¶]

All right. Mr. Moreno is the one who wrote out the bill of sale; isn’t that right?

         “A Correct.

         “Q You’re telling this jury Mr. Moreno did that on this own. It was his idea;

right?

         “A It was our idea to give me the bill of sale for now.

         “Q How’d that go?

         “A It went fine. He wrote it on the hood of the car, had his lady sign it, and this,

then I signed it.

         “Q Whose idea was that?


                                               25
       “A Both of ours, mine and Ruben’s.

       “Q Who suggested it first?

       “A Me.”

       The prosecutor then moved on to other matters before the lunch recess was taken.

       In light of the prosecutor’s brief questioning regarding the bill of sale, the court

could reasonably accept the prosecutor’s representation that he “didn’t get deep into [the

bill of sale] yet” and “intended to go farther into it with the defendant.” Because

defendant prevented the prosecution from delving deeper into the subject matter of the

bill of sale, striking defendant’s testimony regarding the bill of sale is reasonable and

within the court’s discretion.

       Finally, we note that the court’s ruling did not deprive defendant of a defense.

Defendant’s defense was that he believed he had purchased the car and did not know it

had been stolen. On direct examination, defendant testified in some detail about his

purchase of the car from Ruben, including the terms of payment. While a portion of his

testimony included his description of the bill of sale, the court’s ruling striking the

evidence of the bill of sale did not affect the remainder of his testimony regarding the

transaction. His counsel was still able to, and did, discuss defendant’s testimony

regarding the transaction during his closing argument. Counsel stated, for example:

“Important thing, my client testified what he heard and what he saw and he provided real

specific details in his testimony about this transaction. He remembered what these people

looked like. He remembered even some details, like, actions that they took, things that


                                              26
they did together after the transaction, like driving these people back to an apartment they

said they lived at, [defendant] saying that he brought them to his mother’s house. There’s

some real specifics there that I think add to the credibility of that statement.” Although

the evidence regarding the bill of sale would certainly have supported this defense,

excluding such evidence did not deprive defendant of the defense.

       For all the foregoing reasons, we conclude that the court did not abuse it discretion

in striking evidence of the bill of sale or instructing the jury as it did.

C. Failure to Give Claim-of-right Defense Instruction

       Defendant requested to instruct the jury with CALCRIM No. 1863 regarding the

defense of claim of right.5 The court denied the request, stating: “I do not think it

applies in these circumstances. I do think—this is more classic to the robbery scenario or

embezzlement scenario. However, if [defense counsel] can find a case that applies to




       5  CALCRIM No. 1863 provides:
        “If the defendant obtained property under a claim of right, (he/she) did not have
the intent required for the crime of (theft/ [or] robbery).
        “The defendant obtained property under a claim of right if (he/she) believed in
good faith that (he/she) had a right to the specific property or a specific amount of
money, and (he/she) openly took it.
        “In deciding whether the defendant believed that (he/she) had a right to the
property and whether (he/she) held that belief in good faith, consider all the facts known
to (him/her) at the time (he/she) obtained the property, along with all the other evidence
in the case. The defendant may hold a belief in good faith even if the belief is mistaken
or unreasonable. But if the defendant was aware of facts that made that belief completely
unreasonable, you may conclude that the belief was not held in good faith. [¶] . . . [¶]
        “If you have a reasonable doubt about whether the defendant had the intent
required for (theft/ [or] robbery), you must find (him/her) not guilty of
_________________ <insert specific theft crime>.”

                                               27
[section] 10851 or vehicle theft or possession-of-stolen-vehicle context, then I’ll

reconsider.” Defendant contends the court’s ruling was error. We agree.

       On appeal, we review de novo a claim of instructional error. (People v. Posey

(2004) 32 Cal.4th 193, 218.) We review the legal correctness of the court’s ruling, not

the court’s reasoning. (People v. Zapien (1993) 4 Cal.4th 929, 976.)

       Under the claim-of-right defense, a defendant charged with theft-related crimes

does not have the requisite intent if the defendant obtained the property with a good faith

belief that he or she had a right to the property, even if that belief is mistaken.

(CALCRIM No. 1863; People v. Tufunga (1999) 21 Cal.4th 935, 938, 943.) As the

Supreme Court explained: “Although an intent to steal may ordinarily be inferred when

one person takes the property of another, . . . proof of the existence of a state of mind

incompatible with an intent to steal precludes a finding of either theft or robbery. It has

long been the rule in this state and generally throughout the country that a bona fide

belief, even though mistakenly held, that one has a right or claim to the property negates

felonious intent. [Citations.] A belief that the property taken belongs to the taker

[citations], or that he had a right to retake goods sold [citation] is sufficient to preclude

felonious intent. Felonious intent exists only if the actor intends to take the property of

another without believing in good faith that he has a right or claim to it.” (People v.

Butler (1967) 65 Cal.2d 569, 573, fn. omitted, overruled on another ground in People v.

Tufunga, supra, at p. 956.) The defense is applicable to “all theft-related charges.”




                                              28
(People v. Tufunga, supra, at pp. 952-953, fn. 4; see also People v. Williams (2009) 176

Cal.App.4th 1521, 1526-1527; People v. Russell (2006) 144 Cal.App.4th 1415, 1428.)

       Defendant was not charged with theft; he was charged with taking or driving a

vehicle unlawfully under section 10851. A person commits a violation of section 10851,

subdivision (a) by taking or driving “a vehicle not his or her own, without the consent of

the owner thereof, and with intent either to permanently or temporarily deprive the owner

thereof of his or her title to or possession of the vehicle, whether with or without intent to

steal the vehicle . . . .” The crime can thus be committed “either by taking a vehicle with

the intent to steal it or by driving it with the intent only to temporarily deprive its owner

of possession (i.e., joyriding).” (People v. Allen (1999) 21 Cal.4th 846, 851.) Because

the crime can be committed by merely driving (without taking) a vehicle and with the

intent to deprive the owner of possession temporarily, the crime “is technically not a

‘theft.’” (People v. Montoya (2004) 33 Cal.4th 1031, 1034, fn. 2; see also People v.

Garza (2005) 35 Cal.4th 866, 871 [unlawful driving of a vehicle under § 10851 is not a

form of theft].)

       We have not found any published case addressing whether a claim of right can be

a defense to a charge of violating section 10851. However, the rationale for the defense

in theft cases applies equally to section 10851. Just as a “belief that the property taken

belongs to the taker,” negates the felonious intent required of theft (People v. Butler,

supra, 65 Cal.2d at p. 573), a belief that the vehicle taken (or driven) belongs to the taker

(or driver) negates the intent to deprive—either permanently or temporarily—the owner


                                              29
of title or possession. Stated differently, one who has a bona fide belief, even though

mistakenly held, that the vehicle he is driving is his does not have the intent to deprive

the vehicle’s owner of title or possession for any length of time for purposes of section

10851. (Cf. Butler, supra, at p. 573.) Therefore, by parity of reasoning, the defense of

claim of right should and, we hold, does apply to a charge of violating section 10851.6

        In a criminal case, “the trial court must instruct on the general principles of law

relevant to the issues raised by the evidence. [Citations.] The general principles of law

governing the case are those principles closely and openly connected with the facts

before the court, and which are necessary for the jury’s understanding of the case.”

(People v. St. Martin (1970) 1 Cal.3d 524, 531.) In addition, a defendant has a right to an

instruction upon request that pinpoints the crux, or theory, of the defense when there is

evidence to support the defense. (People v. Jones (2012) 54 Cal.4th 1, 81; People v.

Wright (1988) 45 Cal.3d 1126, 1137.) Such pinpoint instructions must be given upon

request even when, as here, the defense merely negates the intent element of the crime on

which the jury is properly instructed. (See People v. Romo (1990) 220 Cal.App.3d 514,

517.)

        We note that a different rule applies in the absence of a request for such an

instruction. In People v. Anderson (2011) 51 Cal.4th 989, the Supreme Court held that

the trial court did not have a sua sponte duty to instruct on the defense of accident

        6 Although the Attorney General argues that the evidence does not support the
giving of the claim-of-right instruction in this case, she does not contend that the defense
is inapplicable as a matter of law to a charge of violating section 10851.

                                              30
because that defense merely negates the mental state element of the charged crime. (Id.

at pp. 996-998.) The court noted, however, that “the defendant would have been entitled

to a pinpoint instruction relating his theory of accident to the evidence of intent, but only

upon request.” (Id. at p. 998, fn. 3.) In People v. Lawson (2013) 215 Cal.App.4th 108

[Fourth Dist., Div. Two], this court applied the holding of Anderson to the defense of

mistake of fact and any other defense that operates only to negate the mental state

element of the crime. (People v. Lawson, supra, at p. 117.) Relying on Anderson, we

stated: “‘“‘[W]hen a defendant presents evidence to attempt to negate or rebut the

prosecution’s proof of an element of the offense, a defendant is not presenting a special

defense invoking sua sponte instructional duties. While a court may well have a duty to

give a “pinpoint” instruction relating such evidence to the elements of the offense and to

the jury’s duty to acquit if the evidence produces a reasonable doubt, such “pinpoint”

instructions are not required to be given sua sponte and must be given only upon

request.’” [Citation.]’ [Citation.]” (Ibid., quoting People v. Anderson, supra, 51 Cal.4th

at pp. 996-997.) Thus, while Anderson and Lawson hold that trial courts have no sua

sponte duty to instruct on defenses that merely negate the mental state element of a crime,

they also reaffirm that the court must instruct on such defenses upon request.

       “A trial court must give a requested instruction only if it is supported by

substantial evidence . . . .” (People v. Marshall (1997) 15 Cal.4th 1, 39.) “‘“‘Substantial

evidence is evidence sufficient to “deserve consideration by the jury,” that is, evidence

that a reasonable jury could find persuasive.’”’” (People v. Benavides (2005) 35 Cal.4th


                                             31
69, 102.) Sufficient evidence to support the claim-of-right may be supplied solely by the

defendant’s own testimony. (People v. Tufunga, supra, 21 Cal.4th at p. 944.) “‘“In

evaluating the evidence to determine whether a requested instruction should be given, the

trial court should not measure its substantiality by weighing the credibility [of the

witnesses] . . . . Doubts as to the sufficiency of the evidence to warrant instructions

should be resolved in favor of the accused. [Citations.]” [Citation.]’ [Citation.]” (Ibid.;

see also People v. Romo, supra, 220 Cal.App.3d at p. 519.)

       Here, defendant’s testimony provided sufficient evidence to support the requested

claim-of-right instruction. Defendant testified that he purchased the Accord from Ruben

for the price of $800. He gave Ruben $400 for immediate possession of the car and

promised to give Ruben the remaining $400 in exchange for the pink slip approximately

two weeks later. The transaction took place in a commercial parking lot during the day

time. According to defendant, there was nothing about the appearance of the car to make

him suspect the car was stolen. This was consistent with the prosecution’s evidence that

the thief took the keys along with the car and did not have to break into the car. Based on

the description of the transaction, defendant’s testimony that he believed the transaction

was legitimate was, on its face, plausible. Even without the bill of sale, defendant’s

testimony, if believed, was sufficient to establish that he held a good faith belief that the

car was his. The court therefore erred in refusing to give the claim-of-right instruction.




                                              32
       The error is subject to the Watson7 test for harmless error. (Cf. People v. Sojka

(2011) 196 Cal.App.4th 733, 738; People v. Hanna (2013) 218 Cal.App.4th 455, 462.)

Under this test, we will reverse the conviction if, “‘after an examination of the entire

cause, including the evidence’ [we are] of the ‘opinion’ that it is reasonably probable that

a result more favorable to the appealing party would have been reached in the absence of

the error.” (People v. Watson, supra, 46 Cal.2d at p. 836.) In determining whether such

a reasonable probability exists, we will take into consideration the jury’s factual findings

on other instructions. (See, e.g., People v. Moore (2011) 51 Cal.4th 1104, 1132; People

v. Moye (2009) 47 Cal.4th 537, 556-557.)

       Significantly, the jury was instructed as to the defense of mistake of fact, and

rejected the theory. In particular, the jury was told: “If you find that the defendant

believed that the motor vehicle was not stolen, he did not have the specific intent or

mental state required to commit the crimes of Unlawful Taking or Driving of a Vehicle or

Receiving a Stolen Motor Vehicle.”8 By convicting defendant of these crimes, the jury

necessarily rejected the assertion that defendant believed the Accord was not stolen,

which implies the finding that defendant believed the car was stolen.


       7   People v. Watson (1956) 46 Cal.2d 818.

       8  The quoted instructions are the written instructions. The instructions given
orally on this point differ in one respect. The oral version of the first clause is: “If you
find that the defendant believed that he lawfully purchased the motor vehicle not
knowing it was stolen . . . .” The difference does not appear to be substantive. Also, the
written instructions control over any discrepancy with the oral instructions. (People v.
Wilson (2008) 44 Cal.4th 758, 803.)

                                             33
       If the jury had been given the claim of right instruction, it had to acquit defendant

if it found that defendant “believed in good faith that [he] had a right to” to the Accord,

“even if the belief is mistaken or unreasonable.” (CALCRIM No. 1863.) Having

implicitly concluded that defendant believed the car was stolen, if the jury was to acquit

defendant based on the claim of right defense, it would have had to conclude that the

defendant believed the car was stolen and yet still held a good faith belief that he had a

right to the Accord, or, stated differently, that defendant had a good faith belief he had a

right to possess a stolen car.

       Because a good faith belief under the claim-of-right defense can exist even if it is

mistaken or unreasonable, it is theoretically possible to have a mistaken, unreasonable,

good faith belief in the right to possess a stolen car purchased from another. Thus, the

jury’s rejection of the mistake of fact defense does not necessarily mean that the jury

would have also rejected the claim-of-right defense. Nevertheless, while possible, we

conclude that such a result is not, in this case, “reasonably probable” for purposes of

Watson. The evidence supporting the defense consisted primarily of defendant’s

testimony regarding the purchase of the car and evidence establishing the lack of indicia

of a break-in or punched ignition. Such evidence supported the defendant’s contention

that he did not know the car was stolen. This contention, however, was rejected by the

jury when it rejected the mistake of fact defense. There was no evidence to support the

further possibility that he believed the car to be stolen but nevertheless believed he could

rightly possess it. We are convinced, therefore, that the jury, having rejected the mistake


                                             34
of fact defense, would not have acquitted defendant if it had been further instructed as to

the claim-of-right defense.

       Defendant relies on People v. Russell, supra, 144 Cal.App.4th 1415 for support.

In Russell, the defendant possessed a stolen motorcycle. (People v. Russell, supra, 144

Cal.App.4th at pp. 1420-1421.) He testified that he had found the motorcycle and

believed it had been abandoned. (Id. at pp. 1422-1423.) He was convicted of receiving a

stolen motor vehicle. (Id. at p. 1419.) On appeal, the defendant argued that the court

erred in failing to instruct the jury on the defenses of mistake of fact and claim of right.

The Court of Appeal agreed and concluded that the errors were prejudicial because there

was “relatively strong” evidence that the defendant believed the motorcycle had been

abandoned. (Id. at pp. 1431-1433.) Russell is distinguishable because the jury in that

case had not been instructed on either claim of right or mistake of fact. The fact that the

jury in our case was instructed on mistake of fact and implicitly rejected defendant’s

primary contention that he did not know the car was stolen is fundamental to our

conclusion that the failure to instruct on claim of right was harmless. Because the Russell

jury was not instructed as to mistake of fact, that case is not controlling here.

D. Sufficiency of Evidence to Sustain Conviction for Vehicle Theft Under Section 10851

       Defendant contends the evidence is insufficient to convict him under section

10851. We disagree.

       To establish a violation of section 10851, the prosecution must prove the

defendant (1) took or drove a vehicle without the owner’s consent and (2) the defendant


                                              35
had the specific intent to permanently or temporarily deprive the owner of title or

possession. (People v. O'Dell, supra, 153 Cal.App.4th at p. 1574.)

       Regarding the first element, defendant contends there is no “evidence to suggest

he was the person who actually took the vehicle on the morning” it was taken from

Fuentes. Fuentes, defendant points out, was unable to identify the gender or other

characteristics of the person who took his vehicle. This argument is misplaced because

the prosecution is not required to prove that defendant “actually took the vehicle”; it is

enough to establish that defendant drove the vehicle without the owner’s consent.

(People v. Allen, supra, 21 Cal.4th at p. 851.) Defendant admitted he drove the vehicle

and Fuentes testified that he did not give defendant his consent. The first element is

easily satisfied.

       It is not clear from defendant’s appellate briefs whether he is arguing that the

evidence was insufficient to support the jury’s finding as to the second, specific intent

element. To the extent he is making that argument, it is rejected.

       “Intent is a state of mind. A defendant’s state of mind must, in the absence of the

defendant’s own statements, be established by the circumstances surrounding the

commission of the offense.” (People v. Mincey (1992) 2 Cal.4th 408, 433; see also

People v. Bloom (1989) 48 Cal.3d 1194, 1208 [“Evidence of a defendant’s state of mind

is almost inevitably circumstantial, but circumstantial evidence is as sufficient as direct

evidence to support a conviction.”].)




                                             36
       Here, there was evidence that defendant ran a stop sign and sped away when he

began to be followed by a police officer. He then parked in an apartment complex

parking lot, leaving the car parked in an awkward manner that suggested he was in a

hurry to leave the scene and get away from the car. Contrary to defendant’s testimony,

there was evidence that the Morenos did not live in that apartment complex. When a

police officer saw him walking away from the car, defendant ran away. After he was

apprehended, police found no documents in defendant’s possession or in the car

evidencing defendant’s legal title to the car. Jurors could reasonably infer from such

behavior that defendant knew the car he was driving was stolen. From the fact that

defendant was driving the car with such knowledge, jurors could further infer that he

intended to deprive the owner of possession, at least temporarily. The evidence was

therefore sufficient to support the conviction for violating section 10851.

                                    IV. DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                                KING
                                                                                         J.


We concur:

McKINSTER
                Acting P. J.

CODRINGTON
                          J.
                                            37
