Filed 9/20/16 P. v. Espinosa CA2/6
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.111.5.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


THE PEOPLE,                                                                  2d Crim. No. B269937
                                                                          (Super. Ct. No. 2014030319)
     Plaintiff and Respondent,                                                 (Ventura County)
v.
GILBERT MARK ESPINOSA, JR.,
     Defendant and Appellant.


                   Gilbert Mark Espinosa, Jr. appeals his conviction, after a court trial, for
unlawfully taking or driving a vehicle (Veh. Code, § 10851, subd. (a)) with special
findings that he had suffered two prior strike convictions (Pen. Code, §§ 667, subds.
(c)(1) & (e)(1); 1170.12, subds. (a)(1) & (c)(1)) and five prior prison terms (Pen. Code,
§ 667.5, subd. (b)). Appellant pled guilty to being under the influence of a controlled
substance (Health & Saf. Code, § 11550, subd. (a)) and possessing drug paraphernalia
(Health & Saf. Code, § 11364.1, subd. (a)), and was sentenced to eight years state prison.
Appellant contends the trial court abused its discretion in admitting evidence of two
uncharged car thefts to show intent to unlawfully take or drive a vehicle. (Evid. Code, §
1101, subd. (b); Veh. Code, § 10851, subd. (a).) We affirm.
                                                          Facts
                   On the evening of September 26, 2014, appellant asked Brian Williams if
he could borrow Williams’ Toyota Tacoma truck for an hour to run some errands.
Williams was a general contractor and kept his power tools and job site keys in the truck.
Williams was a roommate with Trina Kea, appellant’s common law wife.
              Appellant left with Kea but never returned the truck. Kea told Williams
that she quarreled with appellant and walked home. Williams called multiple times the
next day and continuing calling but appellant did not answer the calls. Williams was
concerned because the truck had a bed box filled with power tools and job site keys. Kea
assured Williams that appellant would return the truck and helped him look for the truck.
Williams reported the truck stolen on October 1, 2014.
              At 1:40 a.m. on October 2, 2014, Ventura County Deputy Sheriff Aaron
Grass stopped appellant in Thousand Oaks. Appellant was under the influence of a
controlled substance and driving Williams’ truck. When appellant pulled out his wallet,
Deputy Grass saw loose credit cards on the seat under appellant’s legs. None of the
credit cards belonged to appellant or the passengers in the truck.
              Appellant was arrested for driving a stolen vehicle, being under the
influence of a controlled substance, and possession of drug paraphernalia. Waiving his
Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436), appellant said that he
borrowed the truck from Williams on October 1 and that he had an “open-ended
agreement” to use the truck. Appellant denied that he was under the influence of drugs
even after he tested positive for drugs.
                                           Discussion
              A violation of Vehicle Code section 10851 requires proof of a specific
intent to deprive the vehicle owner of possession or title for a temporary or permanent
period. (People v. O’Dell (2007) 153 Cal.App.4th 1569, 1574.) The prosecution must
show by direct or circumstantial evidence that the defendant lacked the consent of the
vehicle’s owner. (People v. Clifton (1985) 171 Cal.App.3d 195, 199.) “Mere possession
of a stolen car under suspicious circumstances is sufficient to sustain a conviction of
unlawful taking. Possession of recently stolen property is so incriminating that to warrant
a conviction of unlawful taking there need only be, in addition to possession, slight



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corroboration in the form of statements or conduct of the defendant tending to show his
guilt. [Citation.]” (Id., at p. 200.)
                                   Prior Bad Acts Evidence
               Appellant argues that the trial court abused its discretion in admitting prior
uncharged acts of vehicle theft to show intent. (Evid. Code, § 1101, subd. (b).) On May
26, 2014, Samuel Huerta’s Toyota Tacoma truck was stolen. It had paper dealer plates.
Appellant was found sitting in the truck on June 29, 2014, outside the Ventura County
Jail. The truck had stolen license plates. Appellant denied knowing the truck was stolen
and said that he borrowed it from “Joe” to bail a friend out of jail. When the owner
(Huerta) reclaimed the truck, the paper dealer plates, a toolbox filled with tools, and
paperwork for a horse were missing.
               The second prior bad act involved the theft of a Chevrolet Malibu from the
Crown Dodge dealership in Ventura. Crown Dodge reported the vehicle stolen in August
2014 and told the police that it had dealer paper plates. On September 16, 2014, the Simi
Valley Police responded to a shoplifting call at Costco and stopped appellant across the
street from Costco. Appellant fit the suspect description and was driving the Malibu. He
claimed that the owner, an unidentified “girl,” asked him to drive her to Costco.
               Appellant argues that the uncharged car thefts are too dissimilar to prove
intent and lack probative value. The trial court found that the prior bad acts were
“extremely” relevant and probative of intent because they were close in time and
involved the unlawful taking of a vehicle. Weighing the Evidence Code section 352
factors, the trial court found that the likelihood of prejudice was minimal because it was a
bench trial and the court was obliged not to be led astray by appellant’s prior felony
convictions or prior bad acts. (See e.g., In re Jose M. (1994) 21 Cal.App.4th 1470, 1481
[trial court is presumed capable of properly utilizing evidence admitted for limited
purposes].)
               We review for abuse of discretion. (People v. Roldan (2005) 35 Cal.4th
646, 705.) Prior bad acts evidence is not admissible to prove criminal disposition but
may be received to prove intent or the absence of mistake or accident. (Evid. Code,


                                              3
§ 1101, subd. (b); People v. Ewoldt (1994) 7 Cal.4th 380, 402-403.) Here the prior thefts
were similar to the charged offense and involved stolen vehicles in which appellant
claimed he had owner consent. The car thefts were not remote in time nor did the
evidence necessitate an undue consumption of time or create a substantial danger of
undue prejudice or confuse the issues. (People v. Branch (2001) 91 Cal.App.4th 274,
282.) Appellant makes no showing the decision to admit the prior bad acts evidence was
arbitrary, whimsical, or capricious as a matter of law. (People v. Linkenauger (1995) 32
Cal.App.4th 1603, 1614.)
              Appellant argues that but for the prior bad acts evidence, he would have
obtained a more favorable result. Williams testified that appellant smoked
methamphetamine with him and asked if he could “borrow the truck for an hour to run
some errands.” It was an unusual request, because appellant had never asked before.
Appellant said that Kea, Williams’ roommate, was going with him. Kea had borrowed
the truck on prior occasions and had always returned the truck. Before they left,
Williams asked when they would be back. Kea replied, “probably an hour or two.”
              Kea testified that Williams set no time limit on when appellant had to
return the truck. On cross-examination, Kea stated that appellant had permission to drive
the truck for as long as he wanted and that appellant borrowed the truck to “take care of
business” and buy drugs for Williams. According to Kea, there was no agreement to ever
return the truck. The trial court discredited Kea’s testimony for good reason. Kea was a
drug addict and had prior convictions for theft, narcotics, giving false information to a
police officer, prostitution, possession of cocaine base for sale, dissuading a victim, and
petty theft with priors.
              On review, we are precluded from reweighing the evidence or determining
witness credibility. “‘Conflicts and even testimony which is subject to justifiable
suspicion do not justify the reversal of a judgment . . .’ [Citation.] Unless it describes
facts or events that are physically impossible or inherently improbable, the testimony of a
single witness is sufficient to support a conviction. [Citation.]” (People v. Elliot (2012)
53 Cal.4th 535, 585.)


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              Appellant’s claim that he had “open-ended agreement” to use the truck for
as long as he wanted was contradicted by Williams. The trial court reasonably concluded
that Williams’ testimony was credible and that appellant “did not have an unending, open
permission to use [the truck] for over a week and then . . . steal [Williams’] tools or . . .
otherwise misplace them.”
              The judgment is affirmed.
              NOT TO BE PUBLISHED.


                                                           YEGAN, J.

We concur:


              GILBERT, P. J.


              PERREN, J.




                                               5
                               Matthew P. Guasco, Judge

                            Superior Court County of Ventura

                           ______________________________


             Earl E. Conaway III, under appointment by the Court of Appeal, for
Defendant and Appellant.
              Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Noah P. Hill,
Nathan Guttman, Deputy Attorneys General, for Plaintiff and Respondent.
