Filed 5/10/21 P. v. Maljanian CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E073573
v. (Super.Ct.No. 16CR057094)
JAMES E. MALJANIAN, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. David A.
Williams, Judge. Affirmed.
Richard Jay Moller, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta and Xavier Becerra, Attorneys General, Lance E. Winters, Chief
Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha
Cortina, Tami Falkenstein Hennick and Warren Williams, Deputy Attorneys General,
for Plaintiff and Respondent.
1 A jury found defendant and appellant James Edward Maljanian guilty of driving
or taking a vehicle without the owner’s consent. (Veh. Code, § 10851, subd. (a).) The
trial court sentenced defendant to prison for three years, but suspended execution of the
sentence pending the successful completion of three years of formal probation.
Defendant raises two issues on appeal. First, defendant asserts the trial court
erred by refusing his mistake of fact instruction. Second, defendant contends the trial
court erred by denying his motion for new trial, which was primarily based upon a
theory of ineffective assistance of counsel. We affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
The victim collects classic cars and sells classic car parts on the internet; he is
not a professional car dealer. In 2011, the victim purchased three vehicles from Daniel
Shimiaei. One of the vehicles was a 1969 Jaguar XKE (the Jaguar). The victim
estimated the Jaguar was worth $12,000 to $25,000. The victim stored the Jaguar in a
hangar at the El Monte airport. The victim knew defendant because defendant was also
a tenant at the El Monte airport.
On August 29, 2011, the victim borrowed $25,000 from defendant. The written
terms of the loan required the victim to pay defendant a fee of $1,950 and for the loan to
be repaid by September 28, 2011. The writing also reflected the loan was secured by
titles to two Jaguars; no identifying information was given for the Jaguars, such as
models or license plate numbers.
By the end of September 2011, the victim had failed to repay the loan. On
November 3, 2011, the victim and defendant agreed to extend the loan to November 27,
2 2011. The written extension agreement reflects a change of one of the two Jaguar titles,
from a “72 coupe v12” to a “69 conv. Jag,” i.e., the Jaguar. The title that the victim
gave to defendant for the Jaguar was unsigned. Shimiaei initially forgot to sign the title
when he sold the Jaguar to the victim, which temporarily left the victim with an
unsigned title. On October 28, 2011, Shimiaei signed the title for the Jaguar. The
victim did not register the Jaguar in his name because he planned to use the Jaguar for
parts. The title for the Jaguar that the victim gave to defendant, on November 3, 2011,
was the unsigned title from Shimiaei; however, by that date, Shimiaei had already
signed the title. Thus, there were two separate versions of the title in existence at the
same time—one that was signed by Shimiaei, and one that was unsigned. Defendant
held the version from Shimiaei that was unsigned. The victim gave defendant an
unsigned car title to show good faith, not to allow defendant to register the Jaguar in
defendant’s name.
The victim failed to repay the entire loan balance by November 27, 2011, but
continued making payments to defendant in 2012. On January 9, 2013, defendant and
the victim entered into a third written agreement (the 2013 agreement), which reflected
the victim had repaid defendant $21,900 and that the victim would pay defendant more
interest. Another term of the 2013 agreement read, “3) Final payment of $1000 to be
done by February-27-2013. [¶] Title for [the Jaguar] transfer at time of final monies
paid, realeasing [sic] liability from [defendant].” The victim was unhappy with the
terms of the 2013 agreement. However, the victim signed the 2013 agreement because
it is “very hard to deal with [defendant] and his way of doing business. [Defendant] just
3 has an approach that left [the victim] against the ball.” The victim signed the 2013
agreement “under a lot of stress and duress.”
On January 22, 2013, the victim paid defendant another $1,000, for a total
repayment of $22,900; and that was the last payment the victim gave to defendant,
which meant the principal and interest were not fully repaid. The victim never told
defendant he could have the Jaguar. The victim explained, “It would be ludicrous to
give him a car when I had already paid $24,000 [sic].”
Defendant told Shimiaei that the victim owed defendant money. Defendant contacted
Shimiaei more than 10 times with “lots of late evening phone calls,” asking Shimiaei to
author a document reflecting defendant owned the Jaguar. Shimiaei said he “would not
do that because that was not the case and that would be illegal.” Defendant threatened
to tell various law enforcement agencies that Shimiaei was “involved with dealing with
stolen cars or cars that were in bad transactions.” Shimiaei “eventually started getting
calls from various different departments of law enforcement regarding this.”
Defendant summoned the police to one of the victim’s hangars at the El Monte
airport. On May 14, 2013, the police arrived “in full swat outfits with their guns drawn,
storming the place.” The police asked the victim for the titles to the vehicles in the
hangar. The Jaguar was not one of the vehicles the police asked about; the Jaguar was
in a different hangar at the airport. Approximately one month later, the victim contacted
the police “regarding the accusation of [defendant] regarding the Jaguar.” The victim
showed the police his purchase agreement, his loan agreement with defendant, and
evidence that the victim had repaid “90 percent of the loan.” The victim agreed to show
4 the police the Jaguar and have the VIN verified. The police came to the victim’s hangar
three or four more times to investigate the Jaguar; the time period for those visits is
unclear.
In 2015, the victim rented 40-foot shipping containers at a storage facility in
Chino from Merlin Smit. The Jaguar was placed in one of the shipping containers. On
February 21, 2016, defendant called Smit. Defendant told Smit that defendant’s Jaguar
was in one of the victim’s shipping containers and asked Smit to help defendant “get his
car out of there.” Smit agreed to meet defendant at the storage facility to help defendant
remove the Jaguar. That same day, Smit met defendant at the storage facility. The
victim had left one or two of the doors to the shipping container unlocked. Smit opened
the container, defendant identified the Jaguar, and Smit helped defendant push the
Jaguar out of the shipping container. Smit towed the Jaguar just outside the storage
facility gate.
Defendant called Joe Young and asked Young to tow the Jaguar because it was
not drivable. At approximately midnight, Young met defendant at the Chino storage
facility. Young towed the Jaguar to one of Young’s storage spaces in Pasadena.
Defendant told Young that defendant owned the Jaguar. On February 22, 2016, the
victim reported the Jaguar stolen.
Young tried to help defendant sell the Jaguar. Young contacted Jon Pollock,
who specialized in classic Jaguars. Within a week of the Jaguar being towed to
Pasadena, Pollock came to look at the Jaguar. Prior to Pollock’s arrival, defendant
removed the VIN tag from the Jaguar. The VIN tag had been located under the hood,
5 on the passenger side, on the bottom rail. It is not typical to remove a VIN tag when
selling a car. A classic car has more value when the VIN tag is attached because, when
it is not attached, there is an implication that the vehicle is stolen. Young asked
defendant why he removed the VIN tag. Defendant replied, “Because there was
problems with the title.” Pollock was considering purchasing the Jaguar. After looking
at the Jaguar, Pollock asked defendant for the VIN tag. Defendant told Pollock, “That
doesn’t come with the car.”
In August 2016, a friend of Young and defendant “ran the VIN tag for
[defendant].” At that point, Young contacted law enforcement and said Young was in
possession of a stolen vehicle. Young spoke to Chino Police Detective Girasek. Young
met Girasek at the storage facility. Girasek needed to identify the Jaguar but was unable
to locate a VIN tag on the Jaguar. Young called Pollock who explained where a hidden
VIN could be found on the Jaguar. Girasek found the hidden VIN and contacted the
victim, who retrieved the Jaguar.
Luis Hernandez was an investigator for the DMV. Hernandez explained that a
lien can be filed against a vehicle. The lien is filed with the DMV and provides notice
that the vehicle will be sold if the money owed is not paid. Hernandez further explained
that a vehicle can be transferred from one person to another by the prior owner of the
vehicle either signing title over to the new owner, or, if the title is lost, by signing an
“application for title with a transfer. But in all cases, they have to sign off the vehicle.”
Signing off means signing “a document under penalty of perjury indicating that they are
6 releasing their interest in the vehicle, and they’re intending to transfer it to the new
owner.”
When there is a dispute over vehicle ownership, the DMV will “advise the
parties to go to civil court, [and] have a judge rule on who should be awarded the
vehicle. Once that judgment is given, the certified judgment would then be sent to the
[DMV’s] Involuntary Transfer Section . . . and then revert the title to reflect what the
order of the Court was.”
DISCUSSION
A. MISTAKE OF FACT
1. PROCEDURAL HISTORY
Defense counsel requested the trial court instruct the jury on mistake of fact.
(CALCRIM No. 3406.) Defense counsel pointed to evidence that defendant told at least
one person, e.g., Young, that defendant was the owner of the Jaguar. Defense counsel
asserted the jury could use that evidence to find defendant mistakenly believed he
owned the Jaguar.
Defense counsel also pointed to the 2013 agreement, which reads in part, “Title
for [the Jaguar] transfer at time of final monies paid, realeasing [sic] liability from
[defendant].” Defense counsel argued that the 2013 agreement “on its face, talks about
[defendant] releasing liability for the Jaguar when and if he was paid by [the victim].
Only an owner can release liability.” Defense counsel argued, “So subsumed in that is
the fact that [defendant] at that point is seen as the owner by the very language of the
7 [2013 agreement].” Defense counsel argued the jury could use that evidence to find that
defendant had a good faith belief he owned the Jaguar.
The prosecutor asserted there was not substantial evidence of such a good faith
belief. The prosecutor asserted the victim never gave defendant permission to take the
Jaguar and there was no evidence of defendant perfecting title between 2013 and 2016,
such that defendant could have had a good faith belief that he owned the Jaguar. The
prosecutor pointed to the evidence of defendant removing the VIN tag and argued that it
established defendant did not have a good faith belief that he owned the Jaguar.
The trial court predicted the prosecutor and defense counsel would argue to the
jury about the meaning of the “releasing liability” portion of the 2013 agreement. The
trial court noted that “nobody asked [the victim], ‘What did that mean to you?’ ” The
prosecutor asked to reopen her case to ask the victim that question. Defense counsel
objected, arguing that the prosecution rested and should not be allowed to reopen its
case based upon an instruction requested by the defense. The trial court denied both the
prosecutor’s request to reopen and defense counsel’s request for a mistake of fact
instruction. The trial court said, “I am not convinced that there was a good faith belief
[o]n his part.” Defense counsel asserted it was not a matter of the court being
convinced. The trial court again said it would not instruct on mistake of fact.
2. ANALYSIS
Defendant contends the trial court erred by denying his request to have the jury
instructed on a mistake of fact. The mistake alleged by defendant is that he believed he
8 “Pinpoint instructions ‘ “relate particular facts to a legal issue in the case or
‘pinpoint’ the crux of a defendant’s case.” ’ ” (People v. Jo (2017) 15 Cal.App.5th
1128, 1173-1174.) A trial court may properly refuse to give a pinpoint instruction when
the instruction is not supported by substantial evidence. (People v. Burney (2009) 47
Cal.4th 203, 246.) We apply the de novo standard of review when examining whether
the trial court erred by refusing a pinpoint instruction. (People v. Johnson (2009) 180
Cal.App.4th 702, 707.) When evaluating the evidence to determine whether a pinpoint
instruction should be given, the court should view the evidence “under the defendant’s
account of events.” (People v. Tufunga (1999) 21 Cal.4th 935, 944.)
Theft or taking of a vehicle requires evidence of a defendant’s specific “intent
either to permanently or temporarily deprive the owner thereof of his or her title to or
possession of the vehicle, whether with or without intent to steal the vehicle.” (Veh.
Code, § 10851, subd. (a).) Specific intent can be disproven when the defendant
committed the charged act “under an ignorance or mistake of fact.” (Pen. Code, § 26.)
“A mistake of fact must be in good faith.” (People v. Watt (2014) 229
Cal.App.4th 1215, 1218.) “ ‘ “Good faith, or its absence, involves a factual inquiry into
the plaintiff’s subjective state of mind [citations]: Did he or she believe the action was
valid? What was his or her intent or purpose in pursing it? A subjective state of mind
will rarely be susceptible of direct proof; usually the trial court will be required to infer
it from circumstantial evidence.” ’ ” (People v. Superior Court (Sokolich) (2016) 248
Cal.App.4th 434, 447.)
9 The most favorable finding for defendant that could be made in regard to good
faith is that defendant believed, in good faith, that he had some interest in the Jaguar
because the Jaguar was collateral for a loan that was not fully repaid to defendant. The
nature and validity of the interest claimed by defendant would need to be determined in
some manner, e.g., via a civil lawsuit, a DMV lien, or voluntary settlement with the
victim.
There is no evidence indicating that defendant took the legal steps necessary to
take possession of the Jaguar as collateral for the loan. There is no evidence indicating
the victim voluntarily released liability for the Jaguar to defendant. There is no
evidence indicating the victim voluntarily gave defendant physical possession of the
Jaguar. Thus, there is no evidence to support a finding that defendant, in good faith,
believed he had the right to physically take the Jaguar from the Chino storage container.
To the contrary, there is evidence that defendant knew he did not have the right
to take possession of the Jaguar. In particular, starting in 2012, defendant tried more
than 10 times to pressure Shimiaei to falsify a document reflecting Shimiaei sold the
Jaguar to defendant. That evidence establishes that, prior to defendant removing the
Jaguar from the Chino storage facility, defendant was aware that he was missing
necessary documents to take possession of the Jaguar. Also, defendant removed the
VIN tag from the Jaguar, which shows that, after defendant took the Jaguar, he
remained aware that he lacked the right to possess the Jaguar.
Thus, there is evidence from which one could conclude that defendant believed,
in good faith, that he had an unsettled claim to a security interest in the Jaguar, but there
10 is no evidence from which one could find that defendant believed, in good faith, that he
had a right to remove the Jaguar from the Chino storage container. Therefore, the trial
court did not err by refusing to instruct the jury on mistake of fact.
Defendant contends the jury could infer that defendant had a good faith belief
that he owned the Jaguar from the evidence that the Jaguar was collateral for the loan
that was not fully repaid. The evidence reflects that, as collateral for the loan, the
victim gave defendant an unsigned title for the Jaguar. With an unsigned title,
defendant could not register the Jaguar. Thus, defendant held a document that clearly
was incomplete and did not provide him with title, in that it lacked signatures. Given
the obvious lack of signatures on the title held by defendant, the jury could not have
found a good faith belief of ownership based upon that evidence. At most, the jury
could find defendant had an unsettled claim to the Jaguar.
In defendant’s appellant’s reply brief, defendant writes, “There was strong
evidence that [defendant] in good faith believed he was entitled to ownership of the
Jaguar when [the victim] refused to pay back the loan secured by the car, for which he
had a signed title.” It is unclear who defendant is asserting held the signed title. To the
extent defendant is asserting that defendant held the signed title for the Jaguar, he
provides no record citation to support that assertion. The record reflects there were two
versions of the title—one signed by Shimiaei and one unsigned by Shimiaei. In our
reading of the record, the evidence only reflects that defendant held the unsigned
version of the title.
11 Defendant points to evidence that defendant called the police to the victim’s
hangar at the El Monte airport as evidence that defendant had a good faith belief that he
owned the Jaguar. The problem with relying upon that evidence is that, in 2013, the
police questioned the victim about the Jaguar, looked at the victim’s documents,
verified the Jaguar’s VIN, and the Jaguar remained with the victim. Given that the
police left the Jaguar with the victim, one cannot infer from that evidence that defendant
believed defendant was the rightful owner of the Jaguar in 2016. Perhaps defendant
believed when he contacted police in 2013 that he was the rightful owner, but upon the
police leaving the Jaguar with the victim, defendant would have learned that defendant
was not the owner of the Jaguar. Thus, the evidence of defendant contacting the police
in 2013 does not demonstrate that, in 2016, defendant had a good faith belief that he
could remove the Jaguar from the Chino storage container.
Next, defendant asserts the evidence of defendant telling Young that defendant
owned the Jaguar is evidence of defendant’s good faith belief that he owned the Jaguar.
There is no evidence to explain why defendant would have subjectively believed that he
owned the Jaguar. As explained ante, as collateral for the loan, the victim gave
defendant an unsigned title and the victim retained physical possession of the Jaguar.
Thus, defendant had neither a title he could register nor physical possession of the
Jaguar. Given the evidence, one could not reasonably conclude that defendant held a
good faith belief that he owned the Jaguar; rather, one could, at most, conclude that
defendant believed he had an unsettled claim to the Jaguar and that defendant chose to
12 bypass the civil legal system and resort to self-help to try to settle the issue of
ownership.
Also asserted is that defendant may have been unaware of the legal paths to
obtain ownership of the Jaguar and therefore believed in good faith that he could take
the Jaguar. Defendant’s argument fails because is there is no evidence of defendant’s
lack of awareness of civil remedies. (See People v. Mayberry (1975) 15 Cal.3d 143,
157 [defendant bears the burden of proof for a mistake of fact defense].) Thus, one
cannot infer a good faith belief based upon a lack of knowledge of civil remedies
because there is no evidence of a lack of knowledge of civil remedies.
B. MOTION FOR NEW TRIAL
a. Los Angeles Case
In Los Angeles County, defendant was charged with two felonies, one of which
alleged defendant perjured himself on a DMV certificate of title (Pen. Code, § 118,
subd. (a)). In that case, on February 24, 2014, defendant plead no contest to a
misdemeanor charge of furnishing an altered certified copy of an official record (Pen.
Code, § 115.3); the two felony charges were dismissed. One of the terms of defendant’s
probation was that he not harass the victim—the same victim as in the instant case.
b. Pretrial Motion
In the instant case, prior to the start of trial, defense counsel moved to exclude
evidence of defendant’s Los Angeles conviction, except for impeachment purposes.
The prosecutor argued the misdemeanor conviction pertained to the instant case, in that
13 the misdemeanor concerned defendant wrongly registering the Jaguar in his name. The
prosecutor argued that the 2014 conviction was relevant to show intent and knowledge
when defendant took the Jaguar in 2016. (Evid. Code, § 1101, subd. (b).) Defense
counsel argued there was no factual basis for the plea explicitly given in the record of
conviction. The trial court ruled that the Los Angeles conviction could only be used for
impeachment purposes. The court explained that the prosecutor’s argument failed
because the conviction did not prove that defendant did not own the Jaguar, it only
proved that defendant failed to properly complete the paperwork for the Jaguar.
c. Motion for New Trial
Defendant’s trial attorney was Mr. Turcu. After the jury’s verdict, defendant
changed attorneys, and the new attorney, Mr. Lobato, moved for a new trial based in
part on ineffective assistance of counsel by Turcu. Lobato asserted defendant registered
the title for the Jaguar in defendant’s name, at the DMV, on October 30, 2012, which is
the reason the 2013 agreement discussed defendant releasing liability for the Jaguar.
Lobato contended Turcu was ineffective for failing to introduce the 2012 title because it
would have provided proof of defendant’s mistaken belief that he owned the Jaguar.
Lobato also asserted Turcu was ineffective because he did not allow defendant to
testify. Lobato represented that defendant would have testified that he registered the
Jaguar’s title in his name in order to pressure the victim to repay the loan, i.e., it was a
tactic to collect the debt.
14 d. Opposition
The prosecutor opposed defendant’s motion and attached exhibits to the
opposition. One of the exhibits was a preconviction probation report (Pen. Code,
§ 1203.7) for the 2014 Los Angeles plea. The probation report reads, in part, “On
October 30, 2012, the defendant entered the Pasadena DMV Office and registered the
Jaguar in his own name even though he had not legally purchased it and was not the
legal owner.”
Another exhibit is the Los Angeles Sheriff’s Department incident report related
to the charges that led to the 2014 plea. The report is written by Los Angeles Sheriff’s
Detective Thorne. In the report, Thorne explains that defendant contacted law
enforcement officers and informed them that defendant obtained the Jaguar from
Shimiaei in August 2011, and that the victim stole the Jaguar from defendant. As part
of his investigation, Thorne “contacted the DMV law enforcement line and ordered
Certified VIN histories on the . . . Jaguar [, which] would give [him] information on
registration activity for the past several years on the Jaguar.” Thorne found “a ‘Notice
of Release of Liability’ on file with the DMV showing Mr. Shimiaei selling the . . .
Jaguar to [the victim] in 2011.”1 Shimiaei told law enforcement officers that he sold the
Jaguar to the victim.
In Thorne’s incident report he wrote, “When [the victim] gave the . . . Jaguar
Title to [defendant] to ‘hold’ pending the full payment of their loan agreement, he did
1The victim did not register the Jaguar in his name, but Shimiaei filed paperwork reflecting he sold the Jaguar.
15 not give [defendant] authorization to register the . . . Jaguar in his name and claim the
car was his. But that is what he has done. [Defendant] has taken the . . . Jaguar Title,
signed off (releasing interest in the vehicle) by . . . Shimiaei on 10-23-11 and registered
the car in his name. He turned over the State of California Certificate of Title and wrote
that as of 10-30-12 he purchased the 1969 Jaguar. In addition to this, he reported the
purchase price for the Jaguar was $500.00 dollars. [Defendant] also signed the back of
the Certificate of Title under the statement that reads ‘I certify (or declare) under
penalty of Perjury under the laws of the State of California that the foregoing is true and
correct.’ [¶] [Defendant] committed Perjury (118 PC) when he signed the Title, went
into the Pasadena DMV Office and reported to the DMV he bought the 1969 Jaguar
from . . . Shimiaei on 10-23-12 for $500.00. He also perjured himself when he reported
to the DMV he paid $500.00 for a car worth over $10,000 dollars.”
e. Hearing
At the hearing on defendant’s motion for new trial, the prosecutor summarized
Lobato’s argument as asserting the 2012 title for the Jaguar should have been
introduced as evidence of defendant’s good faith belief that he owned the Jaguar. The
prosecutor asserted Lobato’s argument failed because defendant was convicted of
“illegally altering an official record that had to do with putting title of the [Jaguar] in his
name.” The prosecutor contended the Los Angeles conviction proved defendant “was
on notice that he did not have legal title to the [Jaguar].”
Lobato asserted the prosecutor was making “a huge assumption” and that there
was nothing in the Los Angeles record of conviction indicating that defendant’s plea
16 related to the Jaguar or the DMV. The trial court asked Lobato what altered document
formed the basis of defendant’s Los Angeles conviction. Lobato said there was no way
of knowing because no factual basis was given for the plea. Lobato asserted that,
during trial, the victim should have been asked (1) if he had seen the 2012 Jaguar title
registered in defendant’s name; and (2) if the provision about defendant releasing
liability for the Jaguar was put in the 2013 agreement because of the 2012 title. Lobato
asserted that without the 2012 title and the victim’s testimony about the 2013
agreement, defendant was effectively denied his mistake of law defense, and that denial
of the defense demonstrated ineffective assistance of counsel by Turcu.2
The trial court noted the victim and Shimiaei testified that they had never given
defendant a signed title. The trial court asserted that defendant’s conviction for altering
a document is the only indication of how defendant obtained title in 2012, so evidence
of the 2012 title would not have established defendant’s good faith belief that he owned
the Jaguar. The trial court concluded, “I really don’t have any good faith evidence.”
The trial court denied the motion for new trial and noted that Turcu had tried to pursue a
mistake of fact defense.
2 Lobato repeatedly referred to CALCRIM No. 3411, which is the instruction for a mistake of law. The mistake of fact jury instruction is CALCRIM No. 3406. The record indicates Lobato intended to argue mistake of law, rather than mistake of fact, as Lobato said, “This is CALCRIM 3411, which deals with mistakes of law” and “But 3406, which is a mistake of fact, that’s 3411 of the CALCRIM.” The prosecutor responded to Lobato’s argument by discussing law pertaining to mistake of fact. Later in Lobato’s argument, he switched to arguing mistake of fact.
17 2. ANALYSIS
Defendant contends the trial court erred by denying his motion for new trial.
Defendant asserts Turcu was ineffective for failing to introduce the 2012 title because
“[t]he strongest claim [defendant] could make was that he owned the Jaguar as
evidenced by the title that he had obtained in 2012.”
When the trial court denies a motion for new trial that is based upon ineffective
assistance of counsel, we apply a hybrid standard of review. We defer to the trial
court’s factual findings if they are supported by substantial evidence, and we apply the
de novo standard of review over the ultimate issue of whether defendant was denied
effective assistance of counsel. (People v. Taylor (1984) 162 Cal.App.3d 720, 724-725;
see also People v. Nesler (1997) 16 Cal.4th 561, 582.) To demonstrate ineffective
assistance of counsel, a defendant must establish “ ‘that counsel’s acts or omissions
resulted in the withdrawal of a potentially meritorious defense.’ ” (Taylor, at pp. 724-
725.)
Defendant appears to envision a version of the trial where the 2012 title is
introduced, and the prosecutor is not permitted to provide any evidence in response. A
more realistic version of the trial is that if Turcu introduced the 2012 title, then the
prosecutor would have called Los Angeles Sheriff’s Detective Thorne, who investigated
the 2014 altered document case, to testify about the 2012 title. Thorne would testify
about defendant’s falsehood to law enforcement that defendant purchased the Jaguar
from Shimiaei in 2011, and defendant’s falsehood on the DMV certificate of title that he
purchased the Jaguar for $500. (See Evid. Code, § 1220 [party admission]; see also
18 People v. Anderson (2018) 5 Cal.5th 372, 403 [criminal defendant’s hearsay statement
came within the hearsay exception].)
Thus, if Turcu introduced the 2012 title, then he would have opened the door for
the prosecutor to have Thorne testify about the falsity of the 2012 title. By not
introducing the 2012 title and by having the 2014 conviction excluded, Turcu helped to
prevent the jury from hearing about Thorne’s investigation. To the extent defendant
wanted to use the 2012 title (1) to prove defendant was the owner of the Jaguar,
Thorne’s testimony would have been harmful because it would have shown the
underlying basis for the title was false, e.g., defendant’s falsehood that he purchased the
Jaguar from Shimiaei, indicating the title was not a reliable source for proving
ownership; and/or (2) to prove defendant’s subjective belief that he owned the Jaguar,
Thorne’s testimony would have been harmful because it would have shown that
defendant knew, prior to 2016, that defendant was not the owner of the Jaguar due to the
results of the criminal investigation surrounding the 2012 title.
Turcu could have reasonably concluded that opening the door to Thorne’s
testimony would be more harmful to defendant’s case than helpful, and that the better
course was to omit the 2012 title so as to prevent Thorne from being called as a witness.
Therefore, we conclude the trial court did not err in finding Turcu rendered effective
assistance.
Defendant asserts Turcu should have called the owner of the Chino storage
facility, Charlie McBride, to testify that when he checked with the DMV to identify the
owner of the Jaguar, the DMV informed McBride that defendant owned the Jaguar.
19 Defendant fails to explain what hearsay exception would cause this evidence to be
admissible. Due to the lack of analysis concerning admissibility, we are not persuaded
that the trial court erred. Moreover, in regard to relevance, no evidence was proffered
that McBride shared the DMV information with defendant, so as to aid in proving
defendant’s state of mind.
Defendant asserts Turcu should have called defendant to testify because
defendant would have testified that defendant registered the Jaguar in his name to
pressure the victim to sign the 2013 agreement and repay the loan. Defendant asserts
this evidence would prove good faith, but fails to explain how it would do so. The
proposed testimony provides no insight into why defendant believed he owned the
Jaguar. Moreover, the testimony would invite impeachment related to the Los Angeles
conviction. Accordingly, we conclude the trial court did not err on this point.
Defendant’s ineffective assistance of counsel argument was his primary
argument in his motion for new trial, but it was not the sole issue in the motion.
Defendant also raised issues of denial of a fair trial, prosecutorial misconduct, and the
verdict being contrary to the evidence. On appeal, defendant raises issues related to
these alternate bases for the motion for new trial, which we will address in turn.
First, defendant contends he was denied a fair trial, or the ability to present a
defense, by the combination of Turcu’s failure to introduce the 2012 title and the trial
court’s refusal to give the mistake of fact instruction. We have explained ante that
defendant failed to demonstrate that Turcu was ineffective, and we have explained ante
that the trial court did not err by refusing to instruct the jury on the law of mistake of
20 fact. Consequently, we conclude defendant failed to demonstrate that he was denied a
fair trial, and therefore we conclude the trial court did not err by denying the motion for
new trial on this point.
Second, defendant contends the trial court erred by denying his motion for new
trial because the prosecutor committed misconduct by misrepresenting to the trial court
that defendant’s Los Angeles conviction involved fraud related to the Jaguar, when the
record of conviction did not reflect that. A prosecutor commits misconduct by using
deception to persuade the trial court. (People v. Morales (2001) 25 Cal.4th 34, 44.) We
apply the abuse of discretion standard of review when reviewing the denial of a motion
for new trial that is based upon alleged prosecutorial misconduct. (People v. Thompson
(2010) 49 Cal.4th 79, 140.)
A defendant bears the burden in a motion for new trial. (People v. Watts (2018)
22 Cal.App.5th 102, 116-117.) Defendant failed to sustain his burden in this case. In
the motion for new trial, defendant did not offer a declaration from himself, his Los
Angeles attorney, or the Los Angeles prosecutor to explain the factual basis for
defendant’s plea, so as to prove that the prosecutor in the instant case was incorrect.
(See People v. Manibusan (2013) 58 Cal.4th 40, 54 [three sworn declarations filed with
a motion for new trial]; see also People v. Lavender (2014) 60 Cal.4th 679, 693
[discussing declarations and an evidentiary hearing for a motion for new trial]).
Defendant does not address the probation report and Thorne’s incident report, which
both reflect the 2014 charges were related to false registration paperwork that defendant
gave to the DMV concerning the Jaguar, e.g., defendant’s falsehood that he paid
21 Shimiaei $500 for the Jaguar. Due to the lack of evidence offered by defendant to prove
the prosecutor made a misrepresentation, and defendant’s failure to address the
probation report and Thorne’s incident report reflecting the prosecutor’s representation
was accurate, we conclude the trial court did not err by denying the motion for new trial
on this ground.
Third, defendant contends the trial court erred by denying his motion for new
trial because the verdict is contrary to the evidence. In deciding whether a verdict is
contrary to the evidence, the trial court must independently review the evidence to
determine if there “is sufficient evidence to sustain the verdict.” (People v. Dickens
(2005) 130 Cal.App.4th 1245, 1251.) We review the trial court’s ruling under the abuse
of discretion standard of review. (Id. at p. 1252.)
Defendant contends the Jaguar was registered in his name, and the victim was
aware of the 2012 title as shown by the 2013 agreement, which indicates a legal transfer
occurred. Defendant’s argument ignores critical evidence. The 2013 agreement was
signed in January 2013; and, in June 2013, the police examined the Jaguar and the
victim’s paperwork for the Jaguar, and the police left the Jaguar with the victim. If the
victim acquiesced to defendant’s ownership of the Jaguar, then the victim would not
have demonstrated to police that the victim owned the Jaguar in June 2013. Moreover,
the victim testified that he disagreed with the terms of the 2013 agreement and that he
signed the 2013 agreement under duress. One could conclude from that testimony that
the victim did not agree with the term in the 2013 agreement about defendant releasing
liability for the Jaguar because the victim did not agree that defendant owned the
22 Jaguar. Further, the victim testified, “It would be ludicrous to give [defendant] a car
when [the victim] had already paid” a majority of the money owned on the loan. From
that evidence one can conclude the victim would not have acquiesced to defendant
taking ownership of the Jaguar. Thus, there is evidence from which one could conclude
that the victim did not acquiesce to defendant taking ownership of the Jaguar. Because
defendant fails to address all of the evidence, we are not persuaded that the trial court
abused its discretion.
Defendant contends the trial court erred by not reducing his conviction to a
misdemeanor. Defendant contends the felony finding was contrary to the evidence
because the Jaguar was worth less than $950. (Pen. Code, § 490.2; People v Page
(2017) 3 Cal.5th 1175, 1183.) Defendant points to testimony that the Jaguar’s
floorboards were rusted through and asserts the victim’s valuation of the Jaguar at
$12,000 to $25,000 is implausible. Young testified that, while the Jaguar was “a rust
bucket,” it had “a lot of parts . . . that could still be used for somebody restoring
Jaguars.” Young estimated that the Jaguar, as a parts car, was worth $10,000 to
$15,000. Defendant fails to explain why it was implausible for the Jaguar to be worth
more than $950 as a parts car. Accordingly, we are not persuaded that the trial court
abused its discretion by denying the motion for new trial on this point.
In sum, the trial court did not err.
23 DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER J.
We concur:
McKINSTER Acting P. J.
FIELDS J.