Filed 2/9/15 P. v. Schneider CA3
                                           NOT TO BE PUBLISHED
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
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----




THE PEOPLE,                                                                                  C075279

                   Plaintiff and Respondent,                                     (Super. Ct. No. 13F04565)

          v.

CURTIS B. SCHNEIDER,

                   Defendant and Appellant.




          A jury found defendant Curtis B. Schneider guilty of unlawfully taking and
driving a vehicle and of driving without a valid driver’s license. The court found true
that defendant had five prior convictions involving “theft-related crimes,” and that he had
served four separate prior prison terms. The court sentenced defendant to county jail for
eight years. On appeal, defendant’s sole contention is the trial court prejudicially erred in
instructing pursuant to CALCRIM No. 361 that the jury could draw adverse inferences
from his failure to explain or deny matters asserted to be within his knowledge. We
affirm.

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                   FACTUAL AND PROCEDURAL BACKGROUND
       On July 19, 2013, at 7:20 a.m., police officers from the Sacramento Police
Department’s auto theft unit parked a bait car on a street in Sacramento. The bait car, a
1999 Acura, was equipped with electronic devices, including a GPS, which alerted the
officers to anyone tampering with the car and permitted the officers to locate the car if it
was driven off. The bait car was also equipped with internal audio/video devices. The
information from the devices was transmitted to a police communication center, where it
was logged into the computer aided dispatching (CAD) system. The officers left the bait
car with its keys in the ignition and the doors unlocked.
       At 11:17 a.m. that same morning, officers at the communication center were
alerted that someone had entered the bait car and turned on the ignition. Officers were
dispatched to locate the bait car, which they did, and followed it into a grocery store
parking lot. There, an officer remotely disabled the bait car’s engine and arrested the
driver, who was defendant. The video in the bait car, which was played for the jury and
which we have watched, shows that defendant was the only person driving the bait car
from the time the video was first activated, i.e., 11:17 a.m., until he was arrested.1
       Defendant testified that during the morning in question, he was walking to a
convenience store when two persons, identifying themselves as Jeff and Jose, asked him
if he wanted to buy an Acura that was parked nearby. Defendant asked what was the
matter with the Acura, and was told there was nothing wrong with it mechanically, but
that it was Jose’s car and “[h]e couldn’t have it in his name.” Defendant agreed to buy
the Acura for $500. Defendant gave Jeff and Jose $250 and agreed to pay the remainder
when they gave him the “papers for the vehicle.” Defendant got into the Acura and drove



1      The “time stamp” on the video differs from real time by “about 25 minutes”
because, as the officer who retrieved the video testified, the DVD had not been reset
before it was used in the present case.

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off. Defendant admitted four prior felony convictions which were “theft related” and one
misdemeanor crime involving moral turpitude.
       In rebuttal, Officer Ann Marie Howland testified that she spoke with defendant
shortly after he was arrested. Defendant told her he had purchased the Acura from Jeff
for $500, and that Jeff gave him the keys to the Acura. At no time in the conversation did
defendant mention Jose. Defendant told Howland there was “only one guy” who he was
dealing with and that guy was Jeff, who is Hispanic.
       Brian Kelley, a used car manager for Elk Grove Acura, evaluated the Acura bait
car and estimated its worth at $3,500.
                                         DISCUSSION
       Without objection, the trial court instructed with CALCRIM No. 361, regarding a
defendant’s failure to explain or deny adverse testimony: “If the defendant failed in his
testimony to explain or deny evidence against him, and if he could reasonably be
expected to have done so based on what he knew, you may consider his failure to explain
or deny in evaluating that evidence. Any such failure is not enough by itself to prove
guilt. The People must still prove the defendant guilty beyond a reasonable doubt. [¶] If
the defendant failed to explain or deny, it is up to you to decide the meaning and
importance of that failure.”
       Defendant contends the trial court erred in giving CALCRIM No. 361 because
there was no evidentiary basis for its applicability. “The appellate court may . . . review
any instruction given . . . even though no objection was made thereto in the lower court,
if the substantial rights of the defendant were affected thereby.” (Pen. Code, § 1259.)
Thus, we review the instruction to determine if it affected defendant’s substantial rights.
As we explain, it did not because there was no prejudice in the court giving this
instruction.
       “In order for [CALCRIM No. 361] to be properly given ‘[t]here [must be] facts or
evidence in the prosecution’s case within [the defendant’s] knowledge which he did not

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explain or deny.’ [Citation.] A contradiction between the defendant’s testimony and
other witnesses’ testimony does not constitute a failure to deny which justifies giving the
instruction. [Citation.] ‘[T]he test for giving the instruction is not whether the
defendant’s testimony is believable. [CALCRIM No. 3.61] is unwarranted when a
defendant explains or denies matters within his or her knowledge, no matter how
improbable that explanation may appear.’ ” (People v. Lamer (2003) 110 Cal.App.4th
1463, 1469.)2
       The People argue it was proper to give CALCRIM No. 361 because “[defendant]
failed to either explain or deny . . . how he was able to obtain the car keys from Jeff when
the CAD logs clearly showed that the keys remained inside the bait car until [defendant]
opened the car door and started the ignition.”
       To the contrary, defendant did explain where he got the keys. The prosecutor
asked defendant if he told “Officer Howland, ‘I gave him the money, and he gave me the
keys’; is that right?” Defendant responded, “Correct.” On direct examination of Officer
Howland, the prosecutor asked her if defendant told her how the “transaction occurred.”
Howland replied, “He stated that he gave Jeff $500, and Jeff gave him the keys . . . .”
The record clearly shows that defendant was confirming that he got the keys from Jeff.
That the People presented contrary evidence that defendant got the keys when he got into
the Acura, as supported by the CAD records, is simply a contradiction in the evidence,
not a failure to explain. Accordingly, CALCRIM No. 361 should not have been given.
However, there was no prejudice in giving this instruction.




2      We have substituted CALCRIM No. 361 for CALJIC No. 2.62 in the Lamar
analysis. The analysis is not affected by this change because “CALCRIM No. 361 is
similar in content to CALJIC No. 2.62.” (People v. Rodriguez (2009) 170 Cal.App.4th
1062, 1066.) Similarly, the parties have not differentiated cases involving CALJIC
No. 262 from those involving CALCRIM No. 361 in making their arguments.

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       Defendant’s testimony regarding how he obtained the Acura was in and of itself
an utter stretch. He purchased a $3,500 Acura from Jeff and Jose for $500 in a chance
encounter while walking down the street. Defendant gave them $250 and purportedly
withheld $250 until they provided him with the car’s “papers.” Prior to the sale,
defendant never examined the Acura nor drove it; instead, he trusted Jeff and Jose’s
representation that there was nothing mechanically wrong with it, and that Jose had to
sell the vehicle because he could not get title to it. Moreover, the bait car’s CAD logs
and the car’s video showed that the only person entering the bait car between the time the
officer left it on the street and when it was driven off was defendant. Given these facts,
there was no prejudice in giving CALCRIM No. 361. Thus, the substantial rights of
defendant were not affected.
                                      DISPOSITION
       The judgment is affirmed.



                                                        ROBIE                 , Acting P. J.



We concur:



      BUTZ                  , J.



      MURRAY                , J.




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