PEOPLE v. In re Puffelis, on Habeas Corpus.

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Court of Appeal, Fourth District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. Benjamin PUFFELIS, Defendant and Appellant. IN RE: Puffelis, on Habeas Corpus.

Nos. D022529, D024661.

Decided: August 07, 1996

Carl M. Lewis, under appointment by the Court of Appeal, La Jolla, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Holly D. Wilkens and Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.

Benjamin Puffelis appeals a judgment convicting him of assault with a deadly weapon with force likely to produce great bodily injury (Pen.Code,1 § 245, subd. (a)(1));  unlawfully driving or taking a vehicle with a prior felony vehicle theft (Veh.Code, § 10851, subd. (a), § 666.5, subd. (a));  and giving false information to a peace officer (§ 148.9, subd. (a)).  The trial court found Puffelis had suffered two prior prison terms (§ 667.5, subd. (b)), and sentenced him to a total term of seven years.

On appeal, Puffelis contends the trial court erred by failing to instruct on section 499b (joyriding) sua sponte as a lesser included offense of unlawful driving or taking a vehicle (Veh.Code, § 10851, subd. (a)).  He also contends the court erred in sentencing him to consecutive terms on the assault and vehicle theft convictions.   He petitions for a writ of habeas corpus, asserting the trial testimony of material eyewitnesses was admittedly false.   We affirm the judgment and deny the petition.

FACTUAL AND PROCEDURAL BACKGROUND

On May 24, 1994, at about 6:30 p.m., Martha Diaz was visiting the home of her aunt and uncle.   Other family members were present.   Martha parked her car in front of the house, put the transmission in park, locked the doors, rolled up the windows, but did not engage the emergency brake.   She testified after she had been inside the house for about one and one-half hours, her nine-year-old cousin, Alejandro, told her he had seen her car going down the street with a man inside.2

Martha's uncle, Gustavo Diaz, testified he saw Puffelis get out of Martha's car.3  Martha said she and Gustavo ran to the car, where they saw Puffelis seated in the driver's seat.   They testified when they arrived, Puffelis swung a bag, containing a tire jack, which struck Gustavo's cheek.   Gustavo said he hit Puffelis back.

Martha testified Gustavo returned to the house, while another uncle, Tomas, placed Puffelis in a headlock.   Tomas held Puffelis in one hand and held a bottle of beer in the other.   Puffelis broke away and ran down the street.   Gustavo's wife, Maria Lemus, called police.   Puffelis, found hiding in a bush, had a small cut on his lip, his left hand was bandaged and he was missing three fingers from his left hand.4  On the seat of her car, Martha found a key which did not belong to her.   It was similar to her Toyota key and would start the car.   The car stereo had been pulled out and placed on the front seat.

DISCUSSION

I. AppealA. Assertion of Instructional Error

Puffelis contends the court erred in failing to instruct sua sponte on section 499b (joyriding) as a lesser included offense of Vehicle Code section 10851, subdivision (a).

 A trial court must instruct sua sponte on lesser included offenses when there is substantial evidence meriting jury consideration which raises a question of whether all elements of the charged offense are present.   (People v. Flannel (1979) 25 Cal.3d 668, 684–685, fn. 12, 160 Cal.Rptr. 84, 603 P.2d 1.)   It need not do so when only weak evidence is presented to support the instruction.  (Ibid.)  “[T]he trial court need not, even if requested, instruct the jury on the existence and definition of a lesser and included offense if the evidence was such that the defendant, if guilty at all, was guilty of something beyond the lesser offense.”  (People v. Romero (1975) 48 Cal.App.3d 752, 758, 121 Cal.Rptr. 800.)

 Section 499b is not intrinsically a necessarily included offense of Vehicle Code section 10851 because Vehicle Code section 10851 can be committed without satisfying every element of section 499b.  (People v. Barrick (1982) 33 Cal.3d 115, 133, 187 Cal.Rptr. 716, 654 P.2d 1243.)  Vehicle Code section 10851 may be violated by either taking or driving with the specific intent to deprive the owner permanently or temporarily of possession.   Section 499b requires only an intent to use or operate the vehicle.   Because conceivably one could “take” a car without intending to use or operate it, violation of section 499b is not necessarily included within Vehicle Code section 10851 as long as the accusatory pleading alleges only a taking.   However, when, as here, the accusatory pleading alleges taking “and” driving, section 499b is necessarily included because driving necessarily encompasses use and operation.  (Id. at pp. 133–135, 187 Cal.Rptr. 716, 654 P.2d 1243.)   The court is required to so instruct sua sponte, even though a defendant acquiesces in the court's decision not to do so, unless there are no facts to support only a finding of the lesser included offense.5

 Here, there was no substantial evidence Puffelis took the car with the intent to return it, or that his operating it was not intended to deprive the owner of possession.   Martha testified Puffelis, a stranger to her, was in the driver's seat of her car, which had been moved from in front of the residence, and when she and Gustavo arrived, Puffelis hit Gustavo and ran away.   Martha found a key in her car, which the jurors could reasonably conclude was left there by Puffelis.   There is no credible evidence from which the jury could have found Puffelis did not intend to deprive Martha, at least temporarily, of possession.

This evidence contrasts with evidence in cases reversed for the failure to give a sua sponte instruction on the elements of section 499b.   In each such case, some evidence (albeit weak evidence) was offered that the vehicle was taken from the owner's possession by someone other than the defendant, and when the defendant took possession he was unaware the vehicle was stolen.   The testimony offered in each case could allow an inference the defendant did not intend to deprive the owner of the vehicle of possession.   In People v. Ivans (1992) 2 Cal.App.4th 1654, 1659, 4 Cal.Rptr.2d 66 and People v. Green (1995) 34 Cal.App.4th 165, 172, 40 Cal.Rptr.2d 239, defendants were apprehended in stolen vehicles some distance from the sites where the vehicles had been taken from their owners.   The defendant in Ivans testified he had gotten a ride in a pickup truck with some acquaintances, and only later learned it was stolen.  (Id. at p. 1661, 4 Cal.Rptr.2d 66.)   The defendant in Green testified a friend, who he thought was the owner of the stolen car, had paid him to hot wire it because the friend had misplaced his keys.  (Id. at p. 173, 40 Cal.Rptr.2d 239.)   In People v. Frye (1994) 28 Cal.App.4th 1080, 1082, 34 Cal.Rptr.2d 180, the defendant was apprehended after walking away from a stolen car.   The ignition had been altered and the steering column smashed.   The defendant claimed one of his passengers had stolen the car, the defendant later got a ride from that individual and then asked to drive unaware the car was stolen.   In People v. Tiebout (1983) 141 Cal.App.3d 1011, 1012, 190 Cal.Rptr. 754, the defendant testified someone else took a truck from the owner's possession while the defendant rode in the passenger seat.   The defendant was apprehended in the truck a few days later after buying gasoline.  (Id. at pp. 1012–1013, 190 Cal.Rptr. 754.)

In each of these cases evidence was offered the defendant initially was unaware the vehicle had been stolen.   If a jury accepted this testimony it could infer the defendant intended to use or operate it, but did not intend to deprive the owner of possession.

In People v. Barrick, supra, 33 Cal.3d at page 135, 187 Cal.Rptr. 716, 654 P.2d 1243, our supreme court found error in a failure to instruct sua sponte on section 499b.  (Id. at p. 135, 187 Cal.Rptr. 716, 654 P.2d 1243.)   In Barrick also there was slight evidence the defendant lacked an intent to deprive the owner of possession.   There, the defendant was arrested sleeping in a stolen car.   He told the arresting officer the car belonged to a friend.  (Id. at p. 121, 187 Cal.Rptr. 716, 654 P.2d 1243.)   The ignition system had been altered, but the court opined this fact showed only the manner in which the car was taken, and was not dispositive of whether the defendant intended to deprive the owner of possession or merely intended to use the car.  (Id. at p. 135, 187 Cal.Rptr. 716, 654 P.2d 1243.)   The court reversed on another ground and did not determine whether failure to give the instruction required reversal.  (Ibid.)

Here, by contrast, there was no evidence which would have permitted an inference Puffelis lacked an intent to deprive Martha of possession.   There was testimony the car had been moved, Puffelis was in the driver's seat, and when confronted fought with Gustavo.   A key, which did not belong to Martha but would start the car when placed in the ignition, was on the passenger seat.   Unlike facts in Barrick and other cases Puffelis cites, no evidence was offered which would permit an inference Puffelis was unaware the car had been taken from its owner or he would have returned the car if asked.   The court was not required to instruct sua sponte on section 499b.

B. Assertion of Sentencing Error

Puffelis contends the court erred in sentencing him to consecutive terms on the assault and vehicle theft convictions.6  He argues section 654 is violated because the two crimes constituted an indivisible course of conduct.   He also claims the court abused its discretion in considering the fact the two crimes involved two victims.

The court stated as follows:

“The court finds that the sentence on count one should be consecutive to the sentence on count four on the basis of [California Rules of Court,] rule 425(a)(1),7 namely, that the crimes and their objective were predominantly independent of each other.   We have here two different victims, the owner of the car in count four, the uncle of the owner on count one.   And as—quite frankly, this is what [the defense attorney] argued to the jury, that these were independent acts and they weren't related to each other.   So it is somewhat disingenuous for [the defense attorney] to now claim that the were—or to partially claim that they were all part of the same transaction.   The jury actually found that they weren't.”

 The finding of predominantly independent crimes was consistent with the defense argument Puffelis was, at most, attempting to steal the stereo from Martha's car, and had abandoned it before he tried to escape by applying force to Gustavo.   Whether a course of conduct is divisible depends upon the intent and objective of the actor.  (People v.Beamon (1973) 8 Cal.3d 625, 639, 105 Cal.Rptr. 681, 504 P.2d 905.)  “In applying this rule, the courts analyze the evidence to determine whether all the offenses committed were part of the defendant's original plan or were an afterthought or acts committed in response to unforeseen developments.”  (People v. Vidaurri (1980) 103 Cal.App.3d 450, 465, 163 Cal.Rptr. 57.)   In Vidaurri, the court rejected the appellant's claim a burglary and subsequent assaults committed in an attempt to escape were part of a continuous, indivisible transaction.   The court held the crimes were independent, the assaults being committed in response to the unforeseen circumstance of the approach of security guards.   (Id. at pp. 465–466, 163 Cal.Rptr. 57.)   Here, too, the originally contemplated crime, auto theft, was complete before Gustavo's arrival.   It was only then that Puffelis decided to assault Gustavo in an attempt to escape.   The court's determination the two crimes were predominantly independent of each other is fully supported.

 We also find no error in the court's mentioning there were two victims.   In 1991, to avoid confusion, the factor of “multiple victims” was deleted from the list of aggravating factors in rule 421.  (Advisory Com. com., rule 421, West's Ann.Civ. and Crim.Rules (1994 pocket supp.) p. 173.)   At the same time without comment it was removed from the list of factors supporting consecutive sentences in rule 425.  (People v.Leung (1992) 5 Cal.App.4th 482, 504, 7 Cal.Rptr.2d 290.)   In Leung, the reviewing court held in the proper circumstances the fact there were separate victims may support consecutive sentences.  (Id. at p. 489, 7 Cal.Rptr.2d 290.)   Here, the finding of two separate victims was part of the finding the crimes and their objectives were predominantly independent of each other.   The court did not abuse its discretion in imposing consecutive sentences.

II. Petition for a Writ of Habeas Corpus

Puffelis petitions court for a writ of habeas corpus.   In support he presents declarations from Gustavo, who declares he testified falsely at trial.   He also presents a declaration from Tomas, who did not testify, and from Maria Lemus.

 A writ of habeas corpus may be prosecuted for “[f]alse evidence that is substantially material or probative on the issue of guilt or punishment [which] was introduced against a person at any hearing or trial relating to his incarceration.”  (§ 1473, subd. (b)(1).)  “ ‘[S]ubstantial material evidence’ [means] evidence of such significance that with reasonable probability it could have affected the outcome of the trial.”  (In re Wright (1978) 78 Cal.App.3d 788, 814, 144 Cal.Rptr. 535.)

 In support of Puffelis's petition, Gustavo declares on the day of the incident he and Tomas were outside drinking when he called out to Puffelis, who was walking by the house.   Gustavo states his comment resulted in a fist fight, during which Puffelis struck him with a bag containing a tire iron.   He denies ever seeing Puffelis inside Martha's car or seeing him take anything from the car.   He declares Tomas placed Puffelis in a head lock, Puffelis broke away and he and Tomas chased him.   Gustavo states someone from the District Attorney's office told them if they did not testify he and Tomas would be arrested.   He says they told police they did not want to press charges, but at Tomas's urging he told the story at trial because he was afraid of being sent to jail.

Tomas declares he and Gustavo were drinking outside on the day of the incident when they saw Puffelis bump into Martha's car.   A fight ensued, Puffelis opened the car door, but then ran away.   Tomas states he and Gustavo did not want to testify, the District Attorney scared them with “deportation to Mexico and jail time,” and the District Attorney's office instructed them to lie in court.   Tomas declares he is now incarcerated for a drug offense and driving under the influence.8

Maria Lemus declares she did not witness the incident but called police at her uncle's direction.   She states she was present when a man calling himself a district attorney told Gustavo he would have to testify or face arrest and jail.

These declarations differ from trial testimony insofar as Gustavo now characterizes the altercation as more of a mutual fist fight than he did at trial and claims not to have seen Puffelis in Martha's car or trying to take it.   He continues to maintain Puffelis hit him with a bag containing a heavy object, although now he says the object was a tire iron.   Martha, however, has not recanted her testimony that her car was moved from where she had parked it, she saw Puffelis sitting in the driver's seat, and saw him hit Gustavo in the face with the bag containing the jack.   The jack and a key which could start the car, but did not belong to Martha, were presented as evidence.   The false testimony shown by the declarations was not sufficiently material or probative on the issue of guilt within the meaning of section 1473, subdivision (b)(1) to warrant issuance of the writ.

DISPOSITION

The judgment is affirmed.   The petition for a writ of habeas corpus is denied.

I concur with the majority that the petition for writ of habeas corpus should be denied and further concur that if Puffelis was properly convicted of assault with a deadly weapon (Pen.Code,1 § 245, subd. (a)) and unlawfully driving or taking a vehicle (Veh.Code, § 10851, subd. (a)), it was not under the facts of this case an abuse of discretion for the trial court to impose consecutive sentences.

However, I respectfully dissent from that portion of the majority opinion that concludes it was unnecessary to instruct the jury on the lesser included offense of “joyriding” (§ 499b).   If the facts alleged in the information establish there is a lesser included offense to the charged offense, the trial court must, unless there is insufficient evidence to support a conviction on the lesser offense, instruct the jury on the elements of the lesser included offense.  (People v. James (1984) 157 Cal.App.3d 381, 387, 203 Cal.Rptr. 716;  People v. Ivans (1992) 2 Cal.App.4th 1654, 1663, 4 Cal.Rptr.2d 66.)   Here the information charged Puffelis with unlawfully taking and driving a vehicle which the majority acknowledge by the pleadings alone makes joyriding a lesser included offense to unlawfully taking or driving a vehicle.  (People v. Barrick (1982) 33 Cal.3d 115, 135, 187 Cal.Rptr. 716, 654 P.2d 1243.)

The majority concludes that the joyriding lesser included offense instruction need not have been given because there was insufficient evidence to support conviction of the lesser offense of joyriding.

The majority seems to promulgate a rule that to support a joyriding conviction the evidence must show that (1) the defendant did not himself take the vehicle and when he first used or operated the vehicle he was unaware the vehicle was stolen, and (2) the defendant did not intend to deprive the owner, at least temporarily, of possession of the vehicle.   The first prong of the majority's position seems incorrect.   Section 499b defines as joyriding the situation in which:

“Any person who shall, without the permission of the owner ․ take any automobile ․ for the purpose of temporarily using or operating the same․”  (Italics added.)

As stated in People v. Frye (1994) 28 Cal.App.4th 1080, 1088, footnote 5, 34 Cal.Rptr.2d 180, “[a]n act of driving the car which serves to remove it from the owner's possession would obviously violate section 499b just as an act of driving the car after the original taking was completed.”   It is clear that a defendant who actually takes the vehicle by driving it away may be guilty of joyriding.

It is true, as the majority asserts, that in many reported cases involving joyriding the defendant took possession of the vehicle allegedly without knowledge the vehicle had been stolen.   However, that fact is not always present and certainly is not an element of the crime of joyriding.   If joyriding requires the defendant not know the vehicle was stolen at the time he first takes possession of the vehicle, the crime of joyriding would not be committed if the defendant actually takes the vehicle;  as discussed above, that situation may be joyriding.

With regard to the intent element of joyriding, it is required only that the defendant have the general intent to use or operate the vehicle—that is, to drive the vehicle.  (People v. Frye, supra, 28 Cal.App.4th at pp. 1090–1091, 34 Cal.Rptr.2d 180;  People v. Ivans, supra, 2 Cal.App.4th at p. 1664, 4 Cal.Rptr.2d 66.)   The fact that the evidence would support the specific intent to deprive the owner of possession of the vehicle—the intent required for violation of unlawfully taking or driving a vehicle—does not mean there is not also evidence to support the general intent required for joyriding.

In my view the issue of whether the court was required in this case to give the joyriding instruction is determined by whether there was evidence that Puffelis with the general intent to drive the vehicle took the vehicle without the consent of the owner for the purpose of “taking temporary possession [of the vehicle] through an act of driving.”  (People v. Frye, supra, 28 Cal.App.4th at p. 1091, 34 Cal.Rptr.2d 180.)   I am further of the view that the evidence in this case would support the elements of joyriding.   The vehicle, without the consent of the owner, was taken only a block or so from its starting location.   Puffelis was in the driver's seat and although he perhaps could have driven away from the scene, he did not do so.   Because the evidence supports the inference that he drove the vehicle for the purpose of temporarily operating it, with the general intent to do so, he could have been found guilty of joyriding.

Failure to give the required joyriding instruction as a lesser included offense is prejudicial in this case because there was no other instruction given which would have necessarily resolved the factual issue of joyriding against Puffelis.  (People v. Ivans, supra, 2 Cal.App.4th at p. 1665, 4 Cal.Rptr.2d 66.)   I would therefore reverse the judgment on Puffelis's conviction of violating Vehicle Code section 10851, subdivision (a).

FOOTNOTES

FN1. All statutory references are to the Penal Code unless otherwise specified..  FN1. All statutory references are to the Penal Code unless otherwise specified.

2.   Witnesses testified the engine apparently was not running.

3.   In his petition for a writ of habeas corpus, Puffelis presents declarations by Gustavo and two other percipient witnesses, Tomas Diaz and Maria Lemus.   Gustavo declares he testified falsely at trial.   Tomas requests the case be reconsidered.   Portions of Gustavo's testimony are presented in the factual background to provide a framework for discussion of Puffelis's contentions on appeal.

4.   The injuries to Puffelis's hand are the result of a past accident.

5.   During a discussion among the court and the attorneys regarding jury instructions on lesser included and lesser related offense, the defense attorney requested an instruction on vehicle tampering (Veh.Code § 10852) and not an instruction on joyriding.   We do not decide the issue based on Puffelis's waiver, however, but on the fact no evidence supported a joyriding instruction.

6.   The court sentenced Puffelis to a four-year midterm for taking a vehicle and a consecutive one year for the assault.

7.   All rule references are to the California Rules of Court.

8.   Tomas did not testify at trial.   At the time of the petition he was serving a prison term for driving under the influence of alcohol or drugs (Veh.Code, § 23152, subd. (b)).

FN1. All statutory references are to the Penal Code unless otherwise specified..  FN1. All statutory references are to the Penal Code unless otherwise specified.

WORK, Associate Justice.

KREMER, P.J., concurs.

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