People v. Soto CA4/1 ( 2020 )

Filed 11/17/20 P. v. Soto CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D076509
Plaintiff and Respondent,
v. (Super. Ct. No. SCS307529)
ESTEBAN MAGANA SOTO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Garry G. Haehnle, Judge. Affirmed in part, reversed in part with directions.
Justin Behravesh, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Michael
Pulos and Joy Utomi, Deputy Attorneys General, for Plaintiff and
Respondent.
I
INTRODUCTION
A jury convicted Esteban Magana Soto of one count of unlawful driving
of a vehicle (Veh. Code, § 10851, subd. (a); count 1), but acquitted him of one
count of receiving a stolen vehicle (Pen. Code, § 496d; count 2). The court
suspended imposition of a sentence for three years and placed Soto on formal
probation, including 61 days in county jail to which the court applied credits
for 31 actual days served plus 30 days for conduct.
Soto contends the trial court abused its discretion by allowing a
California Highway Patrol investigator to testify about his observations of a
pattern of young people who are recruited to drive stolen vehicles across the
border in Mexico and his opinion that Soto’s conduct fit this pattern. Soto
contends this testimony had no relevance regarding the issue of whether Soto
knew the car was stolen and amounted to improper expert testimony about
Soto’s guilt. The People contend that any error in admitting the
investigator’s testimony on these issues was harmless. Assuming without
deciding there was error, we agree any such error was harmless.
In supplemental briefs submitted at our request, the parties agreed
that recently enacted Assembly Bill No. 1950 (Stats. 2020, ch. 328, § 2),
which amends Penal Code section 1203.1 to limit the probation term for
felony offenses to two years, subject to certain exceptions not applicable here,
will apply to this case because it will not be final before the amendment
becomes effective on January 1, 2021. However, at oral argument, the People
suggested they may take a different view of whether the amendment should
apply retroactively under In re Estrada (1965) 63 Cal.2d 740, 748, depending
on whether probation is considered a form of punishment. We deny the
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People’s request, made at oral argument, to submit additional briefing on this
issue. Instead, we vacate the probation order and remand the matter to
allow the trial court to consider in the first instance the applicability of the
amended statute in exercising its sentencing discretion or modifying the
probationary term. In all other respects, we affirm the judgment.
II
BACKGROUND
A
On the evening of March 17, 2019, J.W.’s son could not find the keys to
the family’s 2008 Honda Civic. J.W. gave his son a ride to meet some friends
less than a mile away from their Riverside County home. The Honda Civic
was parked as usual in front of their house when they left. When J.W.
returned home approximately 15 minutes later, the Honda Civic was gone.
J.W. called the police and reported the vehicle stolen.
B
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About a week later, at approximately 4:00 a.m. on March 23, 2019,
Officer P., a Customs and Border Patrol agent, stopped Soto driving a Honda
Civic at a port of entry from Mexico. The officer had received an alert that
the approaching vehicle was reported as stolen. Soto provided a California
identification card and a passport in response to Officer P.’s request for his
traveling documents. When Officer P. asked if the car was his, Soto initially
said it was and that he had it about a month. Within moments, however, he
said he lied and it was really his friend’s car who lived in National City. Soto
said he was visiting his grandma in Mexico. Soto appeared nervous.
When the officer asked for the vehicle’s registration, Soto pulled papers
out of the glove box and looked through them. Officer P. said it took a long
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time for him to find the registration. Soto provided a registration card listing
J.W. as the registered owner. When Officer P. asked if J.W. was Soto’s
friend, Soto responded affirmatively. He then said the friend lived in Chula
Vista. Officer P. asked Soto to go to secondary inspection.
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Investigator Cruz works with the California Highway Patrol’s Foreign
Export and Recovery (FEAR) team to interdict stolen vehicles and
components from being exported through land and sea ports. Investigator
Cruz interviewed Soto after reviewing Officer P.’s report and confirming the
vehicle was reported stolen to the Riverside Sheriff’s Department.
Soto said he did not know the car was stolen. He told Investigator Cruz
his friend Aaron called around midnight and asked him to take a car to
Tijuana as a favor and deliver it to a girl at a party room. Aaron said he
would give Soto cash for the favor, but did not say how much.
Aaron drove him to the car, which was parked in Chula Vista, and gave
him the key. Soto claimed he asked if there was a problem with the car and
why Aaron did not take it to Mexico. Aaron said he had other things to do.
Soto followed Aaron, who drove in another car. Aaron turned off before the
border and told Soto to drive straight. Aaron instructed Soto where to take
the car once he crossed the border. He told Soto to ask for a ride back to the
border after he delivered the car.
Soto said he was stopped in Tijuana and sent back to the United States
because he did not have a driver’s license. He said he told Officer P. that his
friend was named J.W., so as “not to get into trouble.” Later in the interview,
however, Soto said he saw the name Aaron on the registration paperwork in
the glovebox. Soto agreed the story sounded weird and said he messed up.
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3
Investigator Cruz has investigated thousands of vehicle theft cases,
including cases where stolen vehicles are taken to Mexico from the United
States. He said Honda Civics are among the top two most commonly stolen
vehicles. In his experience, when stolen vehicles are stopped at the border,
the person driving is not usually the person who stole the vehicle. The
drivers of these vehicles are typically younger males or females between the
ages of 17 and 25, often with no criminal record. When the prosecutor asked
why, defense counsel objected based on relevance and speculation. The court
asked the prosecutor to lay a foundation.
Investigator Cruz observed this pattern in his own investigations and
from talking to other investigators within the FEAR team and other agencies.
He said it appears the young people are recruited through a friend or a friend
of a friend who offers monetary compensation to drive vehicles into Mexico.
When the prosecutor asked Investigator Cruz if Soto fit the pattern of
drivers driving stolen cars into Mexico, defense counsel objected to the
question as calling for speculation. The court overruled the objection stating
his response was based on his training and experience. Investigator Cruz
agreed Soto fit the pattern.
When asked to explain, defense counsel objected that the question
called for an improper opinion. The court overruled the objection.
Investigator Cruz explained Soto fit the pattern based on his age, driving
record, and his connection between the United States and Mexico. He said
most of the individuals targeted to drive stolen vehicles are young Hispanic
men and women with no history of theft. The individuals are offered money
to cross the border with the stolen vehicles, which is consistent with Soto’s
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statement that his friend offered him money. He also noted Soto was a young
Hispanic man with a clean driving record.
On cross-examination, Investigator Cruz acknowledged he did not
discover who stole the car or who had possession of it before Soto. He also
agreed he did not know if Soto was recruited by a vehicle theft ring.
C
A police officer informed J.W. they had recovered the car at the
Mexican border. The car had some damage to the rear fender and some
belongings were missing from the trunk.
No one other than J.W.’s son had permission to use the car. Neither
J.W. nor his son knew Soto or Aaron. No one gave Soto permission to drive
the vehicle.
D
Soto’s brother testified for the defense. The brother said they knew
Aaron since they were children because they attended the same church.
Aaron contacted the brother on the night of March 22, 2019 through a
social media message. Aaron asked if the brother knew how to drive. The
brother said he did not know how to drive and directed Aaron to Soto. Aaron
sent Soto a message and asked him to take a car to Tijuana as a favor. Aaron
came to their home and took the brothers to where the car was parked.
Aaron gave Soto the car key. Soto drove the car to Tijuana. The brother rode
with Aaron as they followed Soto to San Ysidro and waited. The brother
denied knowing the car was stolen. He said Aaron never said it was stolen.
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III
DISCUSSION
A
Testimony Regarding Pattern of Conduct
Soto contends the trial court abused its discretion in allowing the
testimony from Investigator Cruz regarding the pattern he and other agents
observe of young people who are recruited by friends to drive stolen vehicles
across the border and the similarity of this pattern with the facts of this case.
Soto contends there was no dispute that Soto drove a stolen vehicle on the
promise for compensation. The issue for the jury was whether Soto did so
with the requisite knowledge and intent to be found guilty of the charges of
unlawfully driving a vehicle (Veh. Code, § 10851, subd. (a)) and receiving a
stolen vehicle (Pen. Code, § 496d). He contends Investigator Cruz’s testimony
about the pattern of behavior was irrelevant to this issue because it had no
tendency to prove Soto intended to deprive the owner of the Honda Civic of
possession or ownership of the vehicle or that he knew the car was stolen.
(See People v. Perez (1981) 114 Cal.App.3d 470, 477 [evidence of gang
membership did not lead reasonably to an inference of member’s conduct on a
given occasion]; see also People v. Covarrubias (2011) 202 Cal.App.4th 1, 15–
16 [criminal profile evidence is inadmissible to prove defendant’s guilt]
(Covarrubias).)
Soto also contends Investigator Cruz’s testimony of how Soto fit the
pattern of conduct was improper expert opinion regarding his guilt. (People
v. Torres (1995) 33 Cal.App.4th 37, 47 [expert testimony not necessary for the
meaning of the terms robbery and extortion]; contra People v. Romo (2016)
248 Cal.App.4th 682, 697 [agent’s testimony that defendant was not a blind
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mule transporting drugs based on various factors was not an improper
opinion regarding guilt or innocence].)
We generally apply an abuse of discretion standard of review to any
trial court ruling on the admissibility of evidence. (People v. Waidla (2000)
22 Cal.4th 690, 717.) Assuming, without deciding, the court abused its
discretion in admitting Investigator Cruz’s testimony regarding the pattern
of using young people to drive stolen vehicles across the border and the
similarities to Soto’s description of the events leading to his arrest, we
conclude any error was harmless. (Covarrubias, supra, 202 Cal.App.4th at
p. 23.)
“[A] ‘miscarriage of justice’ should be declared only when the court,
‘after an examination of the entire cause, including the evidence,’ is of the
‘opinion’ that it is reasonably probable that a result more favorable to the
appealing party would have been reached in the absence of the error.”
(People v. Watson (1956) 46 Cal.2d 818, 836.) This standard also applies to
the erroneous admission of expert testimony. (People v. Prieto (2003) 30
Cal.4th 226, 247.)
Here, there was ample evidence of Soto’s guilt for unlawful driving.
When Soto was questioned by Officer P., he appeared nervous and repeatedly
lied about the ownership of the car. He first said the car was his and he had
owned it for about a month. However, he almost immediately admitted he
was lying and said his friend let him borrow the car to visit his grandmother
in Mexico. He twice revised his story about where his friend lived. When the
officer saw J.W.’s name on the registration card, Soto agreed that was his
friend’s name. However, he later told Investigator Cruz his friend’s name
was Aaron and admitted he lied to Officer P. about his friend’s name because
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he did not want to get into trouble. These repeated false statements suggest
consciousness of guilt.
Additionally, although Soto claimed he did not know the car was stolen,
he told Investigator Cruz he asked his friend if there was a problem with the
car. He also admitted the story of a friend with whom he had not spoken for
a long time calling in the middle of the night to ask Soto, who did not have a
driver’s license, to drive a car into Mexico and drop it off with a girl at a party
room in exchange for money sounded weird. He admitted he messed up.
The prosecutor only briefly mentioned in his closing statement
Investigator Cruz’s testimony about the similarity of the facts of this case
with the pattern of young people driving stolen vehicles across the border.
The focus of the argument was on Soto’s repeated lies and the suspicious
circumstances under which Soto claimed he was asked to do a favor. The
prosecutor argued these factors presented strong circumstantial evidence
Soto knew the vehicle was stolen.
The jury took its role seriously. It asked to review the transcript of
Soto’s initial interaction with Officer P. in which he repeatedly lied about the
ownership of the car. Thereafter, the jury returned verdicts convicting Soto
of count 1, but acquitting him of count 2. At the sentencing hearing, the
court commented that he, like the jury, found Soto’s story that he did not
know the car was stolen “implausible.” The evidence supported the jury’s
conclusion that Soto’s behavior showed, at a minimum, he knew he was
unlawfully driving the vehicle with an intent to permanently or temporarily
deprive the rightful owner possession as required by Vehicle Code section
10851, subdivision (a).
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Based on the entirety of the record, we conclude it is not reasonably
probable Soto would have obtained a more favorable result in the absence of
Investigator Cruz’s testimony.
B
Probation Term
When Soto was sentenced, Penal Code section 1203.1 provided that a
trial court may grant felony probation “for a period of time not exceeding the
maximum possible term of the sentence[.]” If the “maximum possible term of
the sentence is five years or less, then the period of suspension of imposition
or execution of sentence may, in the discretion of the court, continue for not
over five years.” (Pen. Code, § 1203.1, subd. (a).) The court here granted
probation for three years.
Effective January 1, 2021, Assembly Bill No. 1950 will amend Penal
Code section 1203.1, subdivision (a) to limit the probation term for felony
offenses to two years, except in circumstances not present here. (Assem. Bill
No. 1950 (Stats. 2020, ch. 328, § 2); Cal. Const., art. IV, § 8; Gov. Code,
§ 9600, subd. (a); People v. Camba (1996) 50 Cal.App.4th 857, 865.)
The parties initially agreed the statutory amendment will apply
retroactively to this case because this matter will not be final when the
amended statute becomes effective. Soto contends his probationary period
should be reduced to two years. The People contended the matter should be
remanded to give the trial court the opportunity to reconsider the sentence or
modify the terms of probation in light of the amended statute. At oral
argument, the People asked for the first time to submit supplemental briefing
on the issue of whether probation is a form of punishment subject to the
Estrada rule providing ameliorative changes in the law should apply
retroactively unless there is a savings clause. (In re Estrada, supra, 63
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Cal.2d at p. 748.) We deny the People’s request to provide further briefing on
this issue. The trial court should be given an opportunity to consider in the
first instance whether the amendment to Penal Code section 1203.1,
subdivision (a) applies retroactively and, if so, how it impacts the court’s
exercise of its sentencing discretion. (People v. Buycks (2018) 5 Cal.5th 857,
893.)
IV
DISPOSITION
The order granting probation is vacated and the matter is remanded for
resentencing to consider the applicability, if any, of the amendment to Penal
Code section 1203.1, subdivision (a), effective January 1, 2021. In all other
respects, the judgment is affirmed.
McCONNELL, P. J.
WE CONCUR:
BENKE, J.
HUFFMAN, J.
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