People v. Killian

• Docket Number: H050320,H050557
• Decision Date: 20 February 2024
• Citation: 319 Cal.Rptr.3d 13
• Parties: The PEOPLE, Plaintiff and Respondent, v. Ross Richard KILLIAN, Defendant and Appellant.
• Court: California Court of Appeals

319 Cal.Rptr.3d 13

The PEOPLE, Plaintiff and Respondent,

v.Ross Richard KILLIAN, Defendant and Appellant.

H050320, H050557

Court of Appeal, Sixth District.

Filed February 20, 2024

Certified for Partial Publication.^*

Trial Court: Monterey County Superior Court, Trial Judge: Hon. Mark E. Hood(Monterey County Super. Ct.Nos. 22CR003439, 22CR006162)

William M. Robinson, San Francisco, First District Appellate Project, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Alice B. Lustre, Supervising Deputy Attorney General and Sarah J. Farhat, Deputy Attorney General, for Plaintiff and Respondent.

Danner, J.

This appeal requires us to examine the elements of the crime of knowingly tampering with vehicle identification numbers (VIN’s) to misrepresent or prevent identification of motor vehicles or motor vehicle parts for the purpose of sale, transfer, import, or export ("VIN tampering"¹;Veh. Code, § 10802²).We conclude that the crime described by section 10802 includes tampering with a single VIN while harboring the requisite mental states.We further decide that section 10802’s mental state of "for the purpose of sale [or] transfer" extends to the objective of facilitating a conveyance of the motor vehicle regardless of whether the defendant intended to act as a seller, buyer, transferor, or transferee in the conveyance.

A jury convicted defendantRoss Richard Killian of receiving a stolen motor vehicle (Pen. Code, § 496d, subd. (a)) and VIN tampering (§ 10802).In a bifurcated court trial, the trial court found true that Killian had suffered a prior strike conviction for assault with a firearm (prior strike)(Pen. Code, §§ 245, subd. (a)(2),1170.12, subd. (c)(1)).³The trial court sentenced Killian to an aggregate sentence of four years imprisonment.

In this court, Killian asserts four claims of error.He contends there is insufficient evidence to support his conviction for VIN tampering and, alternatively, the trial court misinstructed the jury on an element of that offense.Additionally, Killian raises three claims concerning his sentence: The prison term imposed for his VIN tampering conviction must be stayed under Penal Code section 654; there is insufficient evidence to prove he had suffered a prior strike conviction for assault with a deadly weapon under Penal Code section 245, former subdivision (a)(1); and the trial court erred by failing to apply certain amendments effected by Senate BillNo. 81 (2021-2022 Reg. Sess.)(Stats. 2021, ch. 721, § 1)(Senate Bill 81) when it refused to strike the prior strike under Penal Code section 1885.

For the reasons explained below, we affirm the judgment.

I.FACTS AND PROCEDURAL BACKGROUND

A.Procedural History

Killian has appealed from the judgment in two cases and from a restitution order.

In July 2022, in docket No. 22CR003439(hereafter "jury trial case"), the Monterey County District Attorney filed a second amended information (information) charging Killian with operating a chop shop (§ 10801; count 1), receiving a stolen motor vehicle (Pen. Code, § 496d, subd. (a); count 2), tampering with VIN’s (§ 10802; count 3), and being a felon in possession of a firearm (Pen. Code, § 29800, subd. (a)(1); count 4).⁴The information also included a prior strike conviction allegation (Pen. Code, § 1170.12, subd. (c)(1)), asserting that on March 7, 1996, in Monterey County Superior Court docket No. SC951263, Killian had been convicted of two offenses: assault with a deadly weapon or by means of force likely to produce great bodily injury (Pen. Code, § 245, former subd. (a)(1)) and assault with a firearm (Pen. Code, § 245, subd. (a)(2)).

The jury found Killian guilty of receiving a stolen motor vehicle (count 2) and tampering with VIN’s (count 3) but acquitted him of the other charges.In a bifurcated proceeding, the trial court found Killian had suffered a prior strike conviction for one of the alleged prior offenses, namely assault with a firearm (Pen. Code, § 245, subd. (a)(2)).

In July 2022, in docket No. 22CR006162(hereafter "plea case"), the district attorney filed a complaint charging Killian with one count of bringing a controlled substance (methamphetamine) into jail (Pen. Code, § 4573, subd. (a); count 1).The complaint also included a prior strike conviction allegation (Pen. Code, § 1170.12, subd. (c)(1)) based on Killian’s March 7, 1996 conviction for assault with a firearm (Pen. Code, § 245, subd. (a)(2)).

On the date set for a preliminary hearing in the plea case, the district attorney orally amended the complaint to include a charge of possession of a controlled substance in jail (Pen. Code, § 4573.6, subd. (a); count 2).Killian entered a "plea to the court," in which he pleaded no contest to possession of a controlled substance in jail (count 2) and admitted the prior strike conviction allegation.Count 1 was designated for dismissal at sentencing.

In August 2022, the trial court sentenced Killian on both cases.The court granted Killian’s motion to strike the prior strike in the plea case (Pen. Code, § 1385;People v. Superior Court(Romero)(1996)13 Cal.4th 497, 53 Cal.Rptr.2d 789, 917 P.2d 628(Romero)) but denied that motion in the jury trial case.

In the jury trial case, the trial court sentenced Killian to a lower term of one year, four months for receiving a stolen motor vehicle (count 2) plus eight months (one-third the middle term) consecutive to count 2 for tampering with VIN’s (count 3).Both terms were doubled due to Killian’s prior strike, for a total prison term of four years.In the plea case, the court imposed a two-year lower term concurrent with the sentence in the jury trial case.

On November 10, 2022, in the jury trial case, the trial court ordered Killian to pay victim restitution to the owner of the stolen vehicle, in the amount of $2,451 plus interest.

Killian appealed from the judgment in the jury trial case.In the plea case, he appealed "based on the sentence or other matters occurring after the plea that do not affect the validity of the plea"(collectively with the appeal in the jury trial case, No. H050320).In addition, Killian appealed from the victim restitution order (No. H050557).

B.Evidence Presented at Trial

1.Prosecution Evidence

On the afternoon of February 4, 2022, Michael B. parked his white 2010 Ford F-150 pickup truck in front of his house in Salinas.⁵He left his keys inside the truck while bringing some items into the house.When he exited his house a few minutes later, his truck was gone.His cellphone, some blankets, and "some food and stuff" that he had just bought were inside the truck.He estimated that his truck was worth about $16,500.

Michael B. later received information regarding the whereabouts of his truck.In the early afternoon of February 7, he spotted the truck at a property on Briarcliff Terrace in Monterey County.His truck was parked next to a nearly identical white 2012 Ford F-150 pickup truck.He called the police.

California Highway Patrol (CHP) Officer Anthony Rivera responded to the scene and spoke with Michael B. CHP Officer Charles Rodriguez arrived soon after and saw the two trucks, other vehicles, equipment, and parts on the property.⁶Along with sheriff’s detectives, Officers Rivera and Rodriguez surveilled the property and vehicles.Officer Rodriguez saw Killian move items from one truck to the other, remove a large toolbox from one truck and place it on the ground, and go into and out of a garage.Officer Rivera applied for and obtained a search warrant.

About 4:00 p.m. that same day, Officer Rivera and other officers executed the search warrant.Killian had left the property.

The license plates that had been on Michael B.’s 2010 F-150 when it was stolen were missing.Officer Rivera checked the public VIN plate on the dashboard of Michael B.’s truck and saw that "it didn’t look like a normal public VIN would look."The VIN plate was missing a rivet and there was a small black screw to the left of where the rivet should have been.The number on the abnormal VIN plate did not match the 2010 F-150’s true VIN, which was on a VIN plate underneath the abnormal one.The passenger compartment of the truck was "filled with numerous things" that did not belong to Michael B., including clothes, mail addressed to Killian, a dog, tools, a loaded shotgun, and a cellphone.Officer Rivera believed that "somebody had been living in" the truck.

As for the other truck parked nearby (the 2012 F-150), a tarp covered its front end.The engine looked dismantled.Officer Rivera confirmed that Killian owned the 2012 F-150.Killian had purchased the truck for $10,300 from a company in Pennsylvania in May 2021.At the time Killian bought the truck, it was in good condition.According to the seller, Killian was excited to purchase the truck and said he was "looking for transportation to get back to California."

A search of the cellphone discovered in Michael B.’s truck revealed that the phone belonged to Killian.A text message sent from that phone to a person named Mike about 1:04 p.m. on February 7 read: " ‘Are you up bro?I need to get out of here before the cops roll up [on] me.’:" Another text message sent about one minute later read: " ‘Hey, buddy.Sorry to hound you.Burr [sic].The thought of going back to jail is making me sick to my stomach.’ "Officer Rivera opined that these text messages were significant because, at the time Killian sent them, the police had been surveilling the property, Killian did not have an outstanding warrant, and he was not on probation.In addition, Killian’s phone contained "a news article clip" that included the phrase " ‘[c]loning vehicles, a trending crime’ " and a picture of a VIN.Officer Rivera explained that " ‘cloning’ " can involve stealing a vehicle and disguising its true identity with that of another similar, "clean"(i.e., legally possessed) but...