P. v. Cervantes CA2/6

Filed 3/21/13 P. v. Cervantes CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.111.5.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. B242685 (Super. Ct. No. VA124262) Plaintiff and Respondent, (Los Angeles County)

v.

RICARDO CERVANTES,

Defendant and Appellant.

Ricardo Cervantes appeals his conviction by jury for unlawfully taking or driving a vehicle (Veh. Code, § 10851, subd. (a)). Appellant admitted two prior prison term enhancements (§ 667.5, subd. (b)) and was sentenced to three years county jail. (Pen. Code, § 1170, subd. (h).) We affirm. Facts On March 28, 2012 at about 1:00 a.m., Joana Chihuahua reported that her Honda Civic was stolen. It was last seen in Chihuahua's driveway sometime between 9:00 p.m. and 12:30 a.m. Los Angeles County Sheriff Deputies Mariano Pacheco and Scott Rodriguez saw the Honda stop at 1:37 a.m. in front of a driveway with the engine running. Ricardo Espinoza jumped out of the driver's side and walked away from the Honda. Appellant exited the passenger door and walked away from Espinoza in the opposite direction. Appellant was holding the car stereo and put it on the sidewalk.

Deputy Pacheco detained Espinoza and appellant and saw a screwdriver jammed in the car ignition. Cables were hanging out the dashboard where the car stereo was removed. Substantial Evidence Appellant asserts that the evidence is insufficient to support the finding that he aided and abetted the vehicle theft. Vehicle Code section 10851, subdivision (a) applies to the driver of the stolen vehicle as well as " '. . . an accessory to or an accomplice in the driving or unauthorized taking . . . .' " (People v. Garza (2005) 35 Cal.4th 866, 875.) Appellant argues that he was an innocent passenger and that "[k]nowledge of the unlawful taking, acquired after the ride started . . . is not enough." (People v. Clark (1967) 251 Cal.App.2d 868, 874.) Although there is no direct evidence that appellant knew the car was stolen, intent was established by circumstantial evidence. "Once the unlawful taking of the vehicle has been established, possession of the recently taken vehicle by the defendant with slight corroboration through statements or conduct tending to show guilt is sufficient to sustain a conviction of Vehicle Code section 1081. [Citation.'] [Citations.] " (People v. Clifton (1985) 171 Cal.App.3d 195, 199-200; People v. Green (1995) 34 Cal.App.4th 165, 181.) A tampered ignition, coupled with other evidence may support a finding of intent to deprive the owner of possession. (Ibid.; see e.g., People v. Windham (1987) 194 Cal.App.3d 1580, 1590-1591.) It is undisputed that Espinoza and appellant abandoned the Honda with the engine running. Espinoza and appellant exited the vehicle at the same time and walked in opposite directions to distance themselves from the car. The most damning evidence was the car stereo. Appellant held it in his right hand and put in down 30 feet away from the Honda. Appellant claims that he was an innocent passenger but the screwdriver jammed in the ignition was visible to anyone sitting in the passenger seat. It took no leap in logic for the jury to find that appellant and Espinoza were on a mission to take the Honda and strip it of its parts, all with the intent to deprive the owner of possession. (See