People v. Espinosa CA2/6

Filed 9/20/16 P. v. Espinosa CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.111.5.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