People v. Tucker, B161314 (Cal. App. 11/21/2003)

• Decision Date: 21 November 2003
• Docket Number: B161314.
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. RENNIE CARL TUCKER, Defendant and Appellant.

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Unpublished Opinion

THE PEOPLE, Plaintiff and Respondent, v. RENNIE CARL TUCKER, Defendant and Appellant.

B161314.

Court of Appeals of California, Second Appellate District, Division Five.

Filed November 21, 2003.

APPEAL from a judgment of the Superior Court of Los Angeles County, No. MA023788, Warren G. Greene, Judge. Affirmed.

Allison H. Ting, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Marc E. Turchin, Supervising Deputy Attorney General, and Analee J. Nations, Deputy Attorney General, for Plaintiff and Respondent.

TURNER, P.J.

I. INTRODUCTION

Defendant, Rennie Carl Tucker, appeals from his conviction for unlawful driving or taking of an automobile (Veh. Code, § 10851, subd. (a)) and findings based on his admission that he served five prior prison terms. (Pen. Code¹, § 667.5, subd. (c).) Defendant argues: the trial court improperly instructed the jury with CALJIC Nos. 2.04, 2.28, and 17.41.1; the trial court failed to instruct the jury with CALJIC No. 2.02; the trial court should have given an instruction on the application of the reasonable doubt standard to circumstantial evidence concerning mental states; he was denied effective assistance of counsel; cumulative error requires reversal of the vehicle taking charge; and his prior prison term admissions were not voluntarily and intelligently made. We conclude no prejudicial error occurred and affirm the judgment.

II. FACTUAL BACKGROUND

We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 318-320; People v. Osband (1996) 13 Cal.4th 622, 690; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) On January 10, 2002, Los Angeles County Sheriff's Deputy Michael Berk saw a Jeep truck driven by defendant speeding in a school zone. Deputy Berk pulled the truck over. Defendant produced a California identification card. Defendant said that his license was invalid. Deputy Berk noticed that defendant was eating sunflower seeds and spitting the shells onto the truck floor. Deputy Berk also saw that the ignition was badly damaged and the steering column of the truck was broken. There were no keys in the ignition. When asked for the registration and proof of insurance, defendant indicated he did not have paperwork on the truck.

Deputy Berk ran a computer check of defendant's identification card. Deputy Berk learned that defendant had $21,000 in outstanding warrants. Deputy Berk also discovered that the license plate on the Jeep truck belonged to a Ford. Deputy Berk, who was only riding a motorcycle, requested backup assistance. Deputy Berk told defendant to get out of the truck. Defendant was instructed to accompany Deputy Berk to the area of the motorcycle. Deputy Berk attempted to arrest defendant on the warrants. Defendant resisted being handcuffed and ran. Deputy Berk chased defendant. Defendant scaled a wall and disappeared. A search ensued. Defendant was arrested approximately 10 to 15 minutes later. A search of the Jeep truck revealed no registration, proof of insurance, or any documents bearing defendant's name. A check of the vehicle identification number revealed that the Jeep truck was owned by a company known as No Nonsense Termite Company. The Jeep had been stolen from Michael Williams, the owner of the No Nonsense Termite Company, in October 2001. Mr. Williams did not know defendant. Obviously, defendant was not given permission by Mr. Williams to drive the stolen Jeep. When Mr. Williams got the truck back, it had been "stripped." Mr. Williams estimated that the missing equipment was valued at approximately $7,300 and there was approximately $2,000 damage to the truck. The losses were not covered by insurance.

Defendant testified that he had agreed to fix the truck for a man. The man had identified himself as "Michael Williams." But, the man was not Mr. Williams, the victim, who testified at trial. Defendant spent approximately 10 hours repairing the Jeep at a cost of approximately $250. When the man returned for the Jeep, defendant said it needed additional repairs. The man offered to sell the truck to defendant for $500, not including the $250 repairs. Defendant agreed to purchase the Jeep from the man. Renee Lane had lived with defendant prior to the date that he purchased the Jeep truck. On December 26, 2001, Ms. Lane prepared a document for a man named "Michael Williams." The document gave defendant permission to drive the Jeep while he did mechanical work on it. The document included a vehicle identification number. Ms. Lane was present when the man identified as "Mr. Williams" and defendant signed the document. Ms. Lane signed as a witness to the note. The man did not show any identification or give any address or phone number to Ms. Lane. Ms. Lane kept the note following defendant's arrest. Ms. Lane kept the note to give to defendant's attorney. Ms. Lane had a friend, known only as "Sherry," deliver the original of the document to defendant's former attorney. Ms. Lane did not keep a copy of the document. Ms. Lane did not give a copy of the note to the sheriff's investigators. Ms. Lane testified, "I held onto it to give to his lawyer, because I have had evidence lost by police officers prior to this in other cases."

When Deputy Brad Foss interviewed Ms. Lane just prior to her testimony, she said that she wrote the note at defendant's request. Ms. Lane did not say that the man known as "Mr. Williams" wrote the note. Ms. Lane told Deputy Foss that it was defendant's idea to prepare the note. Deputy Foss interviewed defendant. Defendant said that he had papers for the truck. Defendant said the paperwork was in the truck. But no such paperwork was ever produced. Defendant did not indicate that he had repaired the truck for someone and later purchased it from him. Defendant did not mention Mr. Williams. Defendant had been arrested in September 2001 in another case for which he was charged with possessing a stolen automobile. At that time, defendant explained he had prepared a "lien" on the car. The lien was prepared because the owner had not paid for repairs. This explanation was given to Deputy Foss. Thereafter, defendant was released from custody and never charged with an offense related to that stolen automobile in September 2001.

III. DISCUSSION

A. Instructions

1. CALJIC No. 2.28

a. factual and procedural background

On July 1, 2002, two days prior to trial, defense counsel gave the prosecutor a copy of the handwritten note dated December 26, 2001, which purportedly gave defendant permission to drive the Jeep. The author of the note, a Mr. Williams, was identified as the owner of the Jeep. The note was signed by defendant, Ms. Lane, and the person identified as Mr. Williams. Defendant's lawyer at the time of trial, George Creque, discussed the document with the prosecutor. Defendant's former attorney, Ed Consiglio, gave the document to Mr. Creque. The prosecutor indicated that he had been assigned to the case since late March or April 2002. The trial court reserved judgment on whether to instruct the jury regarding the untimely disclosure of the note. At the time Ms. Lane testified, the prosecutor objected to the introduction of the handwritten note at a sidebar conference. Mr. Creque indicated the evidence was being offered for the purpose of demonstrating that defendant had permission to drive the truck. The trial court agreed to the note's introduction into evidence for purposes of establishing defendant's state of mind rather than to prove any such permission was given. Ms. Lane testified regarding the above discussed note.

Following Ms. Lane's testimony, the trial court and counsel further discussed the untimely disclosure of the note to the prosecution. Mr. Creque's explanation for the untimely disclosure of the note was as follows. Mr. Consiglio originally represented defendant. Ms. Lane gave the note to Mr. Consiglio. Mr. Creque stated: "There was prior counsel on this . . . who gave me the document[]. He had informed me that he had discussed these documents with the deputy district attorney at the time. . . . And I was under the impression he had already given these documents, copies of them, to the district attorney's office. Certainly they have been discussed. [¶] It is my impression from the prior counsel on it, because it was—he had discussed with me what the D.A. deputy D.A. had said to him at the time, so they were aware of them." The prosecutor stated he did not have a copy of the note in his file or any written references to its existence. The trial court requested that the deputy district attorney attempt to determine which prosecutor was previously assigned to the case.

At the close of testimony, the prosecutor requested that the trial court instruct the jury with CALJIC No. 2.28² The deputy district attorney explained that he had spoken to both prosecutors previously assigned to the case. Those prosecutors stated that the note was never given to them. In addition, according to the deputy district attorney, neither Mr. Consiglio nor Mr. Creque discussed with either of the prosecutors who previously handled the case that there was a note which granted defendant permission to drive the Jeep. The trial court found that there was a failure to timely disclose the note. The trial court indicated it would instruct with CALJIC No. 2.28 pursuant to section 1054.5, subdivision (b).

b. propriety of the instruction

Defendant argues that the trial court violated his due process rights by instructing the jury with CALJIC No. 2.28 rather than: ordering a continuance; imposing a fine on Mr. Creque; or holding Mr. Creque in contempt. Defendant also asserts that CALJIC No. 2.28 unfairly refers to the concealment of evidence when that never occurred in this case. Section 1054.3 requires the disclosure...