People v. Killian CA6 ( 2024 )

Filed 2/20/24 P. v. Killian CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
SIXTH APPELLATE DISTRICT
THE PEOPLE, H050320, H050557
(Monterey County
Plaintiff and Respondent, Super. Ct. Nos. 22CR003439,
22CR006162)
v.
ROSS RICHARD KILLIAN,
Defendant and Appellant.
This appeal requires us to examine the elements of the crime of knowingly
tampering with vehicle identification numbers (VIN’s) to misrepresent or prevent
identification of motor vehicles or motor vehicle parts for the purpose of sale, transfer,
import, or export (“VIN tampering”1; Veh. Code, § 108022). We conclude that the crime
described by section 10802 includes tampering with a single VIN while harboring the
requisite mental states. We further decide that section 10802’s mental state of “for the
purpose of sale [or] transfer” extends to the objective of facilitating a conveyance of the
We use “tampering” and “tamper” as shorthand references to the acts prohibited
1
by Vehicle Code section 10802 as a whole. (See People v. Joiner (2000) 84 Cal.App.4th
946, 964, fn. 4 (Joiner).)
2
Unspecified statutory references are to the Vehicle Code.
motor vehicle regardless of whether the defendant intended to act as a seller, buyer,
transferor, or transferee in the conveyance.
A jury convicted defendant Ross Richard Killian of receiving a stolen motor
vehicle (Pen. Code, § 496d, subd. (a)) and VIN tampering (§ 10802). In a bifurcated
court trial, the trial court found true that Killian had suffered a prior strike conviction for
assault with a firearm (prior strike) (Pen. Code, §§ 245, subd. (a)(2), 1170.12, subd.
(c)(1)).3 The trial court sentenced Killian to an aggregate sentence of four years
imprisonment.
In this court, Killian asserts four claims of error. He contends there is insufficient
evidence to support his conviction for VIN tampering and, alternatively, the trial court
misinstructed the jury on an element of that offense. Additionally, Killian raises three
claims concerning his sentence: The prison term imposed for his VIN tampering
conviction must be stayed under Penal Code section 654; there is insufficient evidence to
prove he had suffered a prior strike conviction for assault with a deadly weapon under
Penal Code section 245, former subdivision (a)(1); and the trial court erred by failing to
apply certain amendments effected by Senate Bill No. 81 (2021-2022 Reg. Sess.) (Stats.
2021, ch. 721, § 1) (Senate Bill 81) when it refused to strike the prior strike under Penal
Code section 1385.
For the reasons explained below, we affirm the judgment.
I. FACTS AND PROCEDURAL BACKGROUND
A. Procedural History
Killian has appealed from the judgment in two cases and from a restitution order.
3
Killian’s notice of appeal includes a second no contest plea case, discussed post,
but on appeal he makes no legal claims of error with respect to that conviction. Killian
also filed a second notice of appeal with respect to a postjudgment restitution order. He
similarly makes no legal claims of error with respect to that order. We granted Killian’s
motion to consider the appeals together for the purposes of briefing, oral argument, and
disposition.
2
In July 2022, in docket No. 22CR003439 (hereafter “jury trial case”), the
Monterey County District Attorney filed a second amended information (information)
charging Killian with operating a chop shop (§ 10801; count 1), receiving a stolen motor
vehicle (Pen. Code, § 496d, subd. (a); count 2), tampering with VIN’s (§ 10802; count 3),
and being a felon in possession of a firearm (Pen. Code, § 29800, subd. (a)(1); count 4).4
The information also included a prior strike conviction allegation (Pen. Code, § 1170.12,
subd. (c)(1)), asserting that on March 7, 1996, in Monterey County Superior Court docket
No. SC951263, Killian had been convicted of two offenses: assault with a deadly
weapon or by means of force likely to produce great bodily injury (Pen. Code, § 245,
former subd. (a)(1)) and assault with a firearm (Pen. Code, § 245, subd. (a)(2)).
The jury found Killian guilty of receiving a stolen motor vehicle (count 2) and
tampering with VIN’s (count 3) but acquitted him of the other charges. In a bifurcated
proceeding, the trial court found Killian had suffered a prior strike conviction for one of
the alleged prior offenses, namely assault with a firearm (Pen. Code, § 245, subd. (a)(2)).
In July 2022, in docket No. 22CR006162 (hereafter “plea case”), the district
attorney filed a complaint charging Killian with one count of bringing a controlled
substance (methamphetamine) into jail (Pen. Code, § 4573, subd. (a); count 1). The
complaint also included a prior strike conviction allegation (Pen. Code, § 1170.12, subd.
(c)(1)) based on Killian’s March 7, 1996 conviction for assault with a firearm (Pen. Code,
§ 245, subd. (a)(2)).
On the date set for a preliminary hearing in the plea case, the district attorney
orally amended the complaint to include a charge of possession of a controlled substance
in jail (Pen. Code, § 4573.6, subd. (a); count 2). Killian entered a “plea to the court,” in
4
The second amended information is not included in the record on appeal.
However, according to the trial court, that information simply “correct[ed] the date on the
prior.” Given the minor correction described by the trial court, we state the charges and
sentencing allegation based on the first amended information, which does appear in the
appellate record.
3
which he pleaded no contest to possession of a controlled substance in jail (count 2) and
admitted the prior strike conviction allegation. Count 1 was designated for dismissal at
sentencing.
In August 2022, the trial court sentenced Killian on both cases. The court granted
Killian’s motion to strike the prior strike in the plea case (Pen. Code, § 1385; People v.
Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero)) but denied that motion in the
jury trial case.
In the jury trial case, the trial court sentenced Killian to a lower term of one year,
four months for receiving a stolen motor vehicle (count 2) plus eight months (one-third
the middle term) consecutive to count 2 for tampering with VIN’s (count 3). Both terms
were doubled due to Killian’s prior strike, for a total prison term of four years. In the
plea case, the court imposed a two-year lower term concurrent with the sentence in the
jury trial case.
On November 10, 2022, in the jury trial case, the trial court ordered Killian to pay
victim restitution to the owner of the stolen vehicle, in the amount of $2,451 plus interest.
Killian appealed from the judgment in the jury trial case. In the plea case, he
appealed “based on the sentence or other matters occurring after the plea that do not
affect the validity of the plea” (collectively with the appeal in the jury trial case,
No. H050320). In addition, Killian appealed from the victim restitution order
(No. H050557).
B. Evidence Presented at Trial
1. Prosecution Evidence
On the afternoon of February 4, 2022, Michael B. parked his white 2010 Ford F-
150 pickup truck in front of his house in Salinas.5 He left his keys inside the truck while
5
Unless otherwise indicated, all dates were in 2022. In addition, we refer to the
victim, Michael B., by his first name and last initial to protect his privacy interests. (See
Cal. Rules of Court, rule 8.90(b)(4).)
4
bringing some items into the house. When he exited his house a few minutes later, his
truck was gone. His cellphone, some blankets, and “some food and stuff” that he had just
bought were inside the truck. He estimated that his truck was worth about $16,500.
Michael B. later received information regarding the whereabouts of his truck. In
the early afternoon of February 7, he spotted the truck at a property on Briarcliff Terrace
in Monterey County. His truck was parked next to a nearly identical white 2012 Ford F-
150 pickup truck. He called the police.
California Highway Patrol (CHP) Officer Anthony Rivera responded to the scene
and spoke with Michael B. CHP Officer Charles Rodriguez arrived soon after and saw
the two trucks, other vehicles, equipment, and parts on the property.6 Along with
sheriff’s detectives, Officers Rivera and Rodriguez surveilled the property and vehicles.
Officer Rodriguez saw Killian move items from one truck to the other, remove a large
toolbox from one truck and place it on the ground, and go into and out of a garage.
Officer Rivera applied for and obtained a search warrant.
About 4:00 p.m. that same day, Officer Rivera and other officers executed the
search warrant. Killian had left the property.
The license plates that had been on Michael B.’s 2010 F-150 when it was stolen
were missing. Officer Rivera checked the public VIN plate on the dashboard of Michael
B.’s truck and saw that “it didn’t look like a normal public VIN would look.” The VIN
plate was missing a rivet and there was a small black screw to the left of where the rivet
should have been. The number on the abnormal VIN plate did not match the 2010 F-
150’s true VIN, which was on a VIN plate underneath the abnormal one. The passenger
compartment of the truck was “filled with numerous things” that did not belong to
6
Officer Rodriguez testified as an expert in chop shop and auto theft
investigations within Monterey County.
5
Michael B., including clothes, mail addressed to Killian, a dog, tools, a loaded shotgun,
and a cellphone. Officer Rivera believed that “somebody had been living in” the truck.
As for the other truck parked nearby (the 2012 F-150), a tarp covered its front end.
The engine looked dismantled. Officer Rivera confirmed that Killian owned the 2012 F-
150. Killian had purchased the truck for $10,300 from a company in Pennsylvania in
May 2021. At the time Killian bought the truck, it was in good condition. According to
the seller, Killian was excited to purchase the truck and said he was “looking for
transportation to get back to California.”
A search of the cellphone discovered in Michael B.’s truck revealed that the phone
belonged to Killian. A text message sent from that phone to a person named Mike about
1:04 p.m. on February 7 read: “ ‘Are you up bro? I need to get out of here before the
cops roll up [on] me.’ ” Another text message sent about one minute later read: “ ‘Hey,
buddy. Sorry to hound you. Burr [sic]. The thought of going back to jail is making me
sick to my stomach.’ ” Officer Rivera opined that these text messages were significant
because, at the time Killian sent them, the police had been surveilling the property,
Killian did not have an outstanding warrant, and he was not on probation. In addition,
Killian’s phone contained “a news article clip” that included the phrase “ ‘[c]loning
vehicles, a trending crime’ ” and a picture of a VIN. Officer Rivera explained that
“ ‘cloning’ ” can involve stealing a vehicle and disguising its true identity with that of
another similar, “clean” (i.e., legally possessed) but inoperable vehicle.
On cross-examination, Officer Rivera agreed that people might switch a VIN for
various reasons, including but not limited to selling a stolen vehicle. Officer Rivera
testified further that there was nothing on Killian’s phone indicating that Killian intended
to sell Michael B.’s stolen 2010 F-150. Likewise, there were no messages on Killian’s
phone about him wanting to transfer, export, or import the 2010 F-150.
6
2. Defense Evidence
Phillip Greene Sr. (Greene) is the father of Killian’s ex-wife, Kelly. Greene
testified that he owns and lives at the Briarcliff Terrace property with his wife, his adult
children (Kelly and Phillip Jr.), and his grandchildren. Greene said that Killian had been
temporarily residing on the property for several months and Greene had told Killian that
he needed to find somewhere else to live. Greene believed that Killian’s “truck blew up”
and Killian “was going to . . . New Jersey or Pennsylvania or somewhere” but did not
have the money to fix his truck. Greene said that Killian had been working on his truck
“[a] lot,” using Greene’s tools.
Killian testified in his own defense. He purchased his 2012 F-150 pickup truck (in
a documented transaction) to drive back to California. Soon after he returned to
California, the truck’s engine failed, and Kelly helped tow the truck to her father’s
property. About two weeks later, Killian bought an engine and installed it in his truck,
but that engine failed as well. Killian tried but failed to repair the second engine. During
this time, Killian was living in a trailer on Greene’s property. Killian was not planning to
stay at the property permanently because the living conditions were “not very good” and
he “was actually on [his] way to Kentucky.” Killian’s sister lives in Kentucky and had
invited him to stay there.
Around this time, a man named Chris Marker called Killian and said that he had a
truck for sale for $1,500. Killian gave Marker $700 (all the money that Killian had on
hand) for the truck, and Marker said that Killian “could pay him the rest later.” Killian
testified that he got a “pretty great deal” on the 2010 F-150 and planned to use it “[t]o get
out of there. [He] needed to leave the property.”
Killian possessed the 2010 F-150 for 24 hours before the police seized it on
February 7. During that 24-hour period, he changed the truck’s oil and loaded his
belongings into the truck because he was “in a hurry to get out of there.” He did not see a
7
gun in the truck, did not own a gun, and could not own a gun because he had suffered a
felony conviction at age 19.
Regarding the VIN on the 2010 F-150, Killian testified: “I put mine on it” and “I
took it off the [truck] I owned to put it on the new one.” Killian explained further, “I was
trying to save money on registration and stuff. So I used my VIN to try to beat that. So
that’s what I guess I’m guilty for.”
Killian testified that he did not intend to sell or transfer the 2010 F-150, and he did
not know it was stolen or whether it was registered. On the day the police executed the
warrant, he had left the property to visit a neighbor.
On cross-examination, Killian testified that Marker knew Killian’s 2012 F-150
“was [blown] up” when Killian purchased the 2010 F-150 from Marker. Killian cut a
hole in the windshield of his broken-down truck to access its VIN plate and Phillip Jr.
assisted Killian by drilling out the rivets and placing the VIN plate inside the 2010 F-150.
Within about six hours after Killian had purchased the 2010 F-150, he showed the truck
to “Phillip” and told him about the purchase.7 Phillip said Marker is a car thief and asked
Killian, “ ‘Is it hot?’ ” Killian replied, “ ‘I don’t think so.’ ”
Killian admitted that he had two prior felony convictions in the 1990’s, a 2016
misdemeanor conviction for possession of stolen property, a 2016 felony conviction for
possession of stolen property, and a 2017 conviction for giving false information to a
police officer.
3. Prosecution Rebuttal
Officer Rivera testified about a recorded interview of Killian conducted after his
arrest on April 11. In that interview, Killian said that “Chris” had “charged [him]
$1,500.00 for the truck,” but Killian offered “[$]800 and ended up paying [$]750” and
7
The record is unclear on whether this “Phillip” is Phillip Greene Sr. or Phillip
Greene Jr.
8
“still owe[d] him 50 bucks.” Killian also said that Chris had given him “a little bill of
sale,” which Killian last saw inside the truck. Officer Rivera testified that no bill of sale
was found in the truck.
II. DISCUSSION
Killian raises four claims on appeal, all relating to the conviction and sentence in
the jury trial case. He contends: (1) there is insufficient evidence for his conviction
under section 10802 (count 3) and, alternatively, the trial court misinstructed the jury on
that offense; (2) the prison term imposed on count 3 must be stayed under Penal Code
section 654; (3) there is insufficient evidence to prove he had suffered a separate prior
strike conviction for assault with a deadly weapon under Penal Code section 245, former
subdivision (a)(1); and (4) the trial court erred by failing to apply certain amendments
effected by Senate Bill 81 to Penal Code section 1385 when it refused to strike the prior
strike in the jury trial case.
We address Killian’s claims in turn.
A. Sufficiency of Evidence and Instructions Under Section 10802
1. Further Procedural Background
Section 10802 provides: “Any person who knowingly alters, counterfeits, defaces,
destroys, disguises, falsifies, forges, obliterates, or removes vehicle identification
numbers, with the intent to misrepresent the identity or prevent the identification of motor
vehicles or motor vehicle parts, for the purpose of sale, transfer, import, or export, is
guilty of a public offense and, upon conviction, shall be punished by imprisonment
pursuant to subdivision (h) of [s]ection 1170 of the Penal Code for 16 months, or two or
three years, or by a fine of not more than twenty-five thousand dollars ($25,000), or by
both the fine and imprisonment, or by up to one year in the county jail, or by a fine of not
more than one thousand dollars ($1,000), or by both the fine and imprisonment.”
Count 3 of the information mirrored the language of section 10802.
9
At trial, the court noted that there is no CALCRIM pattern jury instruction for
section 10802. The parties jointly developed a jury instruction for count 3 and agreed to
the wording of the instruction.
The agreed-upon jury instruction read as follows: “The defendant is charged in
[count 3] with VIN [a]lteration in violation of Vehicle Code section 10802. [¶] To prove
that the defendant is guilty of this crime, the People must prove that: [¶] 1. A defendant
knowingly altered, counterfeited, defaced, destroyed, disguised, falsified, forged,
obliterated, or removed vehicle identification numbers; and [¶] 2. The defendant acted
with specific intent to misrepresent the identity or prevent the identification of motor
vehicles or motor vehicle parts, for the purpose of sale or transfer.[8] [¶] Crimes of
vehicle identification number (VIN) tampering is complete [sic] when the person
knowingly alters or destroys a VIN with specific intent to misrepresent the identity or
prevent identification of the vehicle for the purpose of sale or transport,[9] the actual sale
8
Although section 10802 includes the additional purposes of “import” and
“export,” and those purposes were included in count 3 of the information, neither import
nor export was included in the final jury instruction. Because the import and export
purposes were not submitted to the jury for consideration and the Attorney General
makes no specific argument that the trial evidence proved either of those purposes, we do
not consider them further.
9
Neither party addresses in their briefing the discrepancy between the phrase “for
the purpose of sale or transfer” (italics added) stated in element No. 2 of the jury
instruction and the subsequent phrase “for the purpose of sale or transport” (italics
added) stated in the explanation in the jury instruction regarding completion of the
offense.
Section 10802 itself does not use the word “transport.” (See § 10802.) It appears
the language referencing “transport” was taken from Joiner, supra, 84 Cal.App.4th at
page 968, the only published decision interpreting section 10802. Joiner itself neither
explains the use of the word “transport” (instead of “transfer”) nor uses the word
“transport” in any other portion of the opinion. Because the parties make no specific
argument about this discrepancy in the jury instruction, we do not address whether
inclusion of the word “transport” in the jury instruction affects Killian’s claim of error
under section 10802.
10
or transport need not be completed as long as the VIN is changed for those purposes.”
(Italics added.)
In closing argument, the prosecutor asserted that there was “no question” about
element No. 1 in the jury instruction, because Killian admitted on the witness stand that
he intentionally took the VIN off his pickup truck and put it on Michael B.’s stolen truck.
Regarding the second element, the prosecutor argued that Killian “acted with the intent to
. . . misrepresent the identity or prevent the identification of the motor vehicle or parts for
the purposes of sale or transfer.” The prosecutor further asserted that Killian “had the
intent to take his VIN off, [and] put it on [Michael B.]’s vehicle. And he did it with
intent to transfer it. He wanted to make that his vehicle. He wanted to disguise it and
hide the VIN so that way if . . . he happened to come by law enforcement, it’s going to
pass” as his broken-down truck.
Killian’s defense counsel argued that the testimony showed “Phillip [Jr.] put the
VIN on top of the new VIN. Not [Killian].” Counsel argued further: “The People want
you to believe that [Killian] purchased this vehicle to alter it and transfer it to himself.
[¶] But the testimony was that he already had the vehicle. He already bought the vehicle
from Chris. He already owned this vehicle. [He] didn’t purchase the vehicle and then
transfer it to himself with altering the VIN. He already owned the vehicle.” Counsel also
asserted that “there was no indication or evidence presented by the prosecutor that
[Killian] was intending on selling [the truck] to someone else or transferring it to
someone else.”
In rebuttal, the prosecutor reiterated that Killian knew the 2010 F-150 was stolen
and wanted to “disguise [the] truck, pass it as his own. He wanted to transfer it and he
wanted it to become his. And then he wanted to go to Kentucky. [¶] . . . He admitted he
wanted to hide the identity of the truck. He wanted to avoid detection. And that’s what
he did. By taking that VIN plate off his car and putting it on to the public VIN on
[Michael B.]’s truck.”
11
During deliberation, the jury asked the following question: “Under Vehicle Code
[section] 10802 (VIN alteration) does transfer include transfer of ownership of the
vehicle to himself?” When the trial court and the parties discussed the jury’s question,
the court noted that “the term ‘transfer’ is not defined” in the Vehicle Code.” Defense
counsel objected to a proposal to respond “ ‘yes’ ” to the jury’s question. The court
proposed two alternatives, and the parties agreed to the following answer: “Please refer
to Instructions 200 and [section] 10802.[10] [¶] Words and phrases not specifically
defined in these instructions are to be applied using their ordinary, everyday meanings.
[¶] Pay careful attention to all jury instructions and consider them together.”
2. Arguments on Appeal
In his opening brief, Killian contends that “a person cannot ‘transfer’ a vehicle to
himself” and, to violate section 10802, a person must tamper with a VIN for the purpose
of “selling, transferring, importing or exporting the vehicle so modified to another
person.” In turn, Killian asserts there is insufficient evidence that he sought to sell or
transfer the stolen 2010 F-150 (stolen truck) to another person. Alternatively, Killian
contends that the trial court prejudicially erred by instructing the jury and responding to
the jury’s question in a manner that “failed to explain that the ‘purpose of sale or transfer’
required a ‘transfer’ be to another person, and not to the defendant himself.”
The Attorney General responds that although “[Killian] accurately identifies the
mens rea element as requiring a defendant to modify the VIN for the purpose of a sale,
transfer, import, or export,” “there was substantial evidence that [Killian] modified the
VIN on his [truck] to transfer the stolen truck’s registration from an unknown owner to
himself, or to complete a sale from Chris Marker to himself.” The Attorney General
further asserts that Killian forfeited his instructional error claim, the trial court did not err
10
“Instruction[] 200” refers to CALCRIM No. 200, which states the duties of the
judge and jury.
12
in its instructions to the jury, and, regardless, the alleged instructional error was harmless
under the standard set forth in People v. Watson (1956) 46 Cal.2d 818 (Watson).
Upon review of the parties’ briefing, we requested supplemental briefs regarding
whether, under section 10802, the prosecution was required to prove that “(1) Killian
possessed the intent to misrepresent the identity or prevent the identification of his 2012
Ford F-150 pickup truck and (2) Killian acted ‘for the purpose of sale, transfer . . .’ of his
2012 Ford F-150 pickup truck.” In addition, we asked whether there is sufficient
evidence to support these two elements with respect to Killian’s 2012 F-150.
In his supplemental brief, Killian contends that section 10802 prohibits VIN
tampering “involving acts and wrongful criminal intent regarding the ‘sale, transfer,
import or export’ of multiple motor vehicles.” He argues that based on the language of
the statute and its legislative history, section 10802 required proof that he “had the intent
to ‘misrepresent the identity or prevent the identification’ of both the stolen 2010 F-150
and [his] broken-down 2012 Ford F-150 pickup truck, and further required proof that he
acted ‘for the purpose of sale, transfer [etc.] . . .’ of both pickup trucks.” He further
asserts that “there is absolutely no evidence that he had any intent to either misrepresent
the identity of any other vehicle [beside the stolen truck], or a purpose of selling or
transferring . . . [his] broken-down 2012 F-150 pickup truck.”
The Attorney General disputes Killian’s contention that the prosecution had to
prove the elements of section 10802 with respect to both trucks. The Attorney General
contends that “section 10802’s use of the plural form of ‘numbers,’ ‘vehicles,’ and ‘parts’
does not mean that, in order to establish a violation of this section, the prosecutor must
prove the defendant committed these acts relative to more than one VIN, vehicle, or
part.” The Attorney General asserts that “section 14, and a common statutory
construction principle, provide that a statute’s use of the singular tense includes the
plural, and the use of the plural tense includes the singular. The fact that section 10802 is
phrased in the plural, without more, is not dispositive.” The Attorney General
13
acknowledges there is no evidence demonstrating that Killian acted with the purpose of
selling or transferring his 2012 F-150.
3. Legal Principles
“In construing a statute, our fundamental task is to ascertain the Legislature’s
intent so as to effectuate the purpose of the statute. [Citation.] We begin with the
language of the statute, giving the words their usual and ordinary meaning. [Citation.]
The language must be construed ‘in the context of the statute as a whole and the overall
statutory scheme, and we give “significance to every word, phrase, sentence, and part of
an act in pursuance of the legislative purpose.” ’ [Citation.] In other words, ‘ “we do not
construe statutes in isolation, but rather read every statute ‘with reference to the entire
scheme of law of which it is part so that the whole may be harmonized and retain
effectiveness.’ [Citation.]” ’ [Citation.] If the statutory terms are ambiguous, we may
examine extrinsic sources, including the ostensible objects to be achieved and the
legislative history. [Citation.] In such circumstances, we choose the construction that
comports most closely with the Legislature’s apparent intent, endeavoring to promote
rather than defeat the statute’s general purpose, and avoiding a construction that would
lead to absurd consequences.” (Smith v. Superior Court (2006) 39 Cal.4th 77, 83.) “If a
penal statute is still reasonably susceptible to multiple constructions, then we ordinarily
adopt the ‘ “construction which is more favorable to the offender.” ’ ” (People v. Rizo
(2000) 22 Cal.4th 681, 685–686.)
“When reviewing the evidence for legal sufficiency, our task is limited. We
determine ‘whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the
crime.’ [Citation.] We make this determination using the statutory language [citation],
because ‘the plain language of our statute must control as to the acts which constitute the
crime.’ [Citations.] We apply de novo review to the meaning of statutory language.”
(People v. Coulthard (2023) 90 Cal.App.5th 743, 753 (Coulthard).)
14
“We further determine whether the entire record ‘ “contains substantial
evidence—that is, evidence that is reasonable, credible, and of solid value—from which a
reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” ’
[Citations.] ‘In applying this test, we . . . presume in support of the judgment the
existence of every fact the jury could reasonably have deduced from the evidence.’
[Citation.] ‘We “must accept logical inferences that the jury might have drawn from the
circumstantial evidence.” ’ [Citation.] ‘ “We resolve neither credibility issues nor
evidentiary conflicts; we look for substantial evidence. [Citation.]” [Citation.] A
reversal for insufficient evidence “is unwarranted unless it appears ‘that upon no
hypothesis whatever is there sufficient substantial evidence to support’ ” the jury’s
verdict.’ ” (Coulthard, supra, 90 Cal.App.5th at pp. 753–754.)
Regarding jury instructions, “[t]he trial court has a sua sponte duty to instruct the
jury on the essential elements of the charged offense.” (People v. Merritt (2017) 2
Cal.5th 819, 824.) Furthermore, “ ‘[t]he court has a primary duty to help the jury
understand the legal principles it is asked to apply.’ [Citation.] During jury deliberations
‘when the jury “desire[s] to be informed on any point of law arising in the case . . . the
information required must be given.” ’ [Citations.] ‘However, “[w]here the original
instructions are themselves full and complete, the court has discretion under [Penal Code]
section 1138 to determine what additional explanations are sufficient to satisfy the jury’s
request for information.” ’ [Citation.] [Citation.] Although the trial court need not
always elaborate on the standard instructions, the trial court nevertheless has ‘a
“ ‘mandatory’ duty to clear up any instructional confusion expressed by the jury.”
[Citation.]’ [Citations.] This means that a trial court’s response to a jury question can be
erroneous even if it does not technically misstate the law.” (People v. Fleming (2018) 27
Cal.App.5th 754, 766 (Fleming); see also People v. Brooks (2017) 3 Cal.5th 1, 97; People
v. Doane (2021) 66 Cal.App.5th 965, 980.)
15
We review jury instructions de novo to determine whether they completely and
correctly state the law. (See People v. O’Dell (2007) 153 Cal.App.4th 1569, 1574;
People v. Franklin (2018) 21 Cal.App.5th 881, 887.) “ ‘In considering a claim of
instructional error we must first ascertain what the relevant law provides, and then
determine what meaning the instruction given conveys. The test is whether there is a
reasonable likelihood that the jury understood the instruction in a manner that violated
the defendant’s rights. In making this determination we consider the specific language
under challenge and, if necessary, the instructions as a whole. [Citation.]’ [Citations.]
‘ “Finally, we determine whether the instruction, so understood, states the applicable law
correctly.” ’ ” (People v. Lopez (2011) 199 Cal.App.4th 1297, 1305.)
4. Analysis
Our analysis focuses on two issues regarding section 10802: (1) whether the
prosecution must prove that the accused tampered with more than one VIN while
harboring the requisite mental states for each such act of tampering, and (2) whether the
phrase “for the purpose of sale [or] transfer” extends to purposive conduct by a purchaser
or transferee.
a. Construction of Section 10802 and Sufficiency of Evidence
1. Legislative History
Section 10802 was added to the Vehicle Code as part of Senate Bill No. 73 (1993–
1994 Reg. Sess.) (Senate Bill 73). That bill addressed a failure of existing law to “make
it a specific crime to own, operate, or conduct a ‘chop shop.’ ” (Legis. Counsel’s Dig.,
Sen. Bill No. 73 (1993–1994 Reg. Sess.) Stats. 1993, ch. 386.)
As noted ante, section 10802 punishes “[a]ny person who knowingly alters,
counterfeits, defaces, destroys, disguises, falsifies, forges, obliterates, or removes vehicle
identification numbers, with the intent to misrepresent the identity or prevent the
16
identification of motor vehicles or motor vehicle parts, for the purpose of sale, transfer,
import, or export” (italics added).11
Section 10802 includes one actus reus and multiple mentes reae. The actus reus
proscribes VIN tampering, punishing a person who “alters, counterfeits, defaces,
destroys, disguises, falsifies, forges, obliterates, or removes vehicle identification
numbers.”12 (§ 10802.) The mentes reae require that the person commit the proscribed
act (1) “knowingly,” (2) “with the intent to misrepresent the identity or prevent the
identification of motor vehicles or motor vehicle parts,” and (3) “for the purpose of sale,
transfer, import, or export.” (Ibid.) The second and third components involve specific
intent. (See People v. Hering (1999) 20 Cal.4th 440, 446; see also People v. Diaz (1989)
212 Cal.App.3d 745, 750–751.)
Senate Bill 73 added other provisions to the Vehicle Code along with section
10802. One such provision is section 10801, which makes it a crime to knowingly and
intentionally own or operate a “ ‘chop shop.’ ” (Stats. 1993, ch. 386, § 3.) Senate Bill 73
defined a “ ‘chop shop’ ” as a premises “where any person has been engaged in altering,
destroying, disassembling, dismantling, reassembling, or storing any motor vehicle or
motor vehicle part known to be illegally obtained by theft, fraud, or conspiracy to
defraud, in order to” either “[a]lter, counterfeit, deface, destroy, disguise, falsify, forge,
obliterate, or remove the identity, including the vehicle identification number, of a motor
vehicle or motor vehicle part, in order to misrepresent the identity of the motor vehicle or
motor vehicle part, or to prevent the identification of the motor vehicle or motor vehicle
11
The Legislature has amended section 10802 once since enacting Senate Bill 73,
to alter the prescribed punishment. (See Stats. 2011, ch. 15, § 604.) That amendment did
not change the elements of section 10802.
12
Senate Bill 73 defined “ ‘vehicle identification number’ ” as “the motor number,
serial number, or other distinguishing number, letter, mark, character, or datum, or any
combination thereof, required or employed by the manufacturer or the department for the
purpose of uniquely identifying a motor vehicle or motor vehicle part or for the purpose
of registration.” (§ 671, subd. (a); Stats. 1993, ch. 386, § 2.)
17
part” or “[s]ell or dispose of the motor vehicle or motor vehicle part.” (§ 250; Stats.
1993, ch. 386, § 1.)
Additionally, Senate Bill 73 included a provision prohibiting the purchase with
intent to resell, the disposal, sale, or transfer, and the possession “for the purpose of sale,
transfer, import, or export” of more than one motor vehicle or the parts from more than
one motor vehicle with knowledge that “the vehicle identification numbers of the motor
vehicles or motor vehicle parts” had been tampered with to misrepresent their identity or
prevent identification. (§ 10803; Stats. 1993, ch. 386, § 3; see also § 10804 [exempting
from liability under section 10803 “a motor vehicle scrap processor” and certain other
persons, under specified circumstances].)
At the time the Legislature passed Senate Bill 73, existing law made it “a
misdemeanor to intentionally deface, destroy, or alter the motor number, or other
distinguishing number, or identification mark used for the registration of a motor vehicle,
or to knowingly buy, sell, offer for sale, receive, or possess a vehicle or part from which
any serial or identification number has been removed, defaced, altered, or destroyed.”
(Legis. Counsel’s Dig., Sen. Bill No. 73 (1993-1994 Reg. Sess.) Stats. 1993, ch. 386; see
§§ 10750, subd. (a), 10751, subd. (a);13 see also § 10752 [prohibiting possession or sale
of an identification number “with intent to prejudice, damage, injure, or defraud”].)
13
Section 10750, subdivision (a) provides: “No person shall intentionally deface,
destroy, or alter the motor number, other distinguishing number, or identification mark of
a vehicle required or employed for registration purposes without written authorization
from the department, nor shall any person place or stamp any serial, motor, or other
number or mark upon a vehicle, except one assigned thereto by the department.”
Section 10751, subdivision (a) provides: “No person shall knowingly buy, sell,
offer for sale, receive, or have in his or her possession, any vehicle, or component part
thereof, from which any serial or identification number, including, but not limited to, any
number used for registration purposes, that is affixed by the manufacturer to the vehicle
or component part, in whatever manner deemed proper by the manufacturer, has been
removed, defaced, altered, or destroyed, unless the vehicle or component part has
attached thereto an identification number assigned or approved by the department in lieu
of the manufacturer’s number.”
18
Senate Bill 73’s author, Senator Hayden, described the purpose of his bill as
follows: “It is my intent, in proposing this bill, to create a specific crime of commercial
auto theft to target those criminals who traffic in stolen vehicles and vehicle parts. I
believe that present law fails to adequately differentiate between those persons who steal
a car for joy riding or to get a particular vehicle part and those who have established
sophisticated ‘chop shops’ that steal, dismantle and export thousands of cars from
California each year.” (Assem. Com. on Public Safety, Analysis of Sen. Bill No. 73
(1993-1994 Reg. Sess.) May 25, 1993, p. 2.)
Bill analyses produced by the California State Senate for Senate Bill 73 described
section 10802 using plural language for the words “numbers,” “vehicles,” and “parts.”
(Sen. Com. on Judiciary, Analysis of Sen. Bill No. 73 (1993-1994 Reg. Sess.) Feb. 16,
1993, p. 2 [“if any person knowingly alters, destroys, or removes vehicle identification
numbers (VIN), with the intent to prevent the identification of motor vehicles or parts, for
the purpose of sale, transfer, import, or export”]; Off. of Sen. Floor Analyses, 3d reading
analysis of Sen. Bill No. 73 (1993–1994 Reg. Sess.) Apr. 12, 1993, p. 1 [same].)
By contrast, bill analyses produced by the California State Assembly described
section 10802 using singular language. (Assem. Com. on Public Safety, Analysis of Sen.
Bill No. 73 (1993–1994 Reg. Sess.) May 25, 1993, at p. 2 [“if any person knowingly
alters, destroys, or removes a VIN, with a specified intent and purpose” (italics added)];
see also Assem. Com. on Ways and Means, Analysis of Sen. Bill No. 73 (1993–1994
Reg. Sess.) June 30, 1993, p. 1 [“knowingly alter, destroy or remove a vehicle
identification number” (italics added)].)
2. Whether Section 10802 Criminalizes Tampering with a Single VIN
With this background and context for section 10802 in mind, we turn to the
questions at issue in this appeal. We begin with whether the statute requires that the
articulated actus reus and mentes reae apply to multiple VIN’s and motor vehicles or
19
motor vehicle parts.14 The parties have not identified any appellate decisions addressing
this question. The Vehicle Code provides the general rule of construction that “[t]he
singular number includes the plural, and the plural the singular.” (§ 14.) Our Supreme
Court has described an identical rule appearing in Penal Code section 7 as “no mere
rubric—it is the law.” (People v. Jones (1988) 46 Cal.3d 585, 593.) Further, section 6
provides: “Unless the provision or the context otherwise requires, these general
provisions and rules of construction shall govern the construction of this code.”
Under these prescribed rules of construction, and guided by general principles of
statutory interpretation, we must examine section 10802 and its context to determine
whether the Legislature’s use of plural words in section 10802 was intended to override
the general rule and thus preclude any reading that uses the singular. (See Neary v. Town
of Los Altos Hills (1959) 172 Cal.App.2d 721, 728.)
Although section 10802 consistently uses plural language to state its elements,
nothing in the language itself evinces an intent to override the general rule. The statute
makes sense grammatically when read in the singular or plural. (See Joiner, supra, 84
Cal.App.4th at pp. 966, 968 [describing section 10802 variously, using both plural and
singular language].) Moreover, applying the statute to a circumstance of singular VIN
tampering does not produce an absurd result or contravene the overall objective of Senate
Bill 73, particularly when section 10802 is considered in the context of the entire bill.
Section 10801 (the “chop shop”-specific provision of Senate Bill 73) provides
contextual support for applying section 10802 to singular VIN tampering. When defining
a “ ‘chop shop,’ ” the Legislature used the singular terms “vehicle identification number”
14
Consistent with the common principles of criminal liability (see Pen. Code, § 20
[“In every crime . . . there must exist a union, or joint operation of act and intent, or
criminal negligence.”]), we understand the statute to require a congruence between the
actus reus and the mens rea components with respect to the motor vehicle or motor
vehicle part whose VIN has been tampered with. In other words, even if (as here) two
VIN’s are knowingly tampered with, the second and third mens rea components apply to
each act of VIN tampering.
20
and “motor vehicle or motor vehicle part.” (§ 250.15) The Legislature thus evinced an
intent to criminalize acts related to a single motor vehicle or part. This definition calls
into question Killian’s contention that the context surrounding section 10802 requires its
plural words to be construed strictly to apply only when more than one VIN and
associated vehicle or part is at issue.
Furthermore, as noted by the Attorney General, section 10803 includes express
language requiring proof concerning multiple motor vehicles or motor vehicle parts.
Section 10803 criminalizes conduct related to “more than one motor vehicle or parts from
more than one motor vehicle.” (See § 10803.) That the Legislature used such explicitly
plural language in section 10803—which does not appear in section 10802—further
supports a conclusion that the Legislature intended the general rule of construction stated
in section 14 to apply to the simple plural words stated in section 10802.
We decide that notwithstanding the plural language stated in section 10802, that
section may be violated by tampering with a single VIN. In such cases, section 10802
requires the prosecution to prove a defendant tampered with a single VIN and did so
intending to misrepresent the identity or prevent the identification of the motor vehicle or
motor vehicle part to which the tampered with VIN is associated and for the purpose of
sale, transfer, import, or export of such a motor vehicle or motor vehicle part. (See
Joiner, supra, 84 Cal.App.4th at p. 968.)
15
Senate Bill 73 defined a “ ‘chop shop’ ” as a premises “where any person has
been engaged in altering, destroying, disassembling, dismantling, reassembling, or
storing any motor vehicle or motor vehicle part known to be illegally obtained by theft,
fraud, or conspiracy to defraud, in order to do either of the following: [¶] (a) Alter,
counterfeit, deface, destroy, disguise, falsify, forge, obliterate, or remove the identity,
including the vehicle identification number, of a motor vehicle or motor vehicle part, in
order to misrepresent the identity of the motor vehicle or motor vehicle part, or to prevent
the identification of the motor vehicle or motor vehicle part. [¶] (b) Sell or dispose of
the motor vehicle or motor vehicle part.” (§ 250; Stats. 1993, ch. 386, § 1.)
21
3. Whether Section 10802 Includes Purposive Conduct by the Buyer or
Transferee
Having construed section 10802 as applying to a single VIN and its associated
motor vehicle or motor vehicle part, we turn to the statutory requirement that the VIN
tampering be committed “for the purpose of sale [or] transfer.”16 (§ 10802.) In
particular, we examine whether the statute is limited to a purpose to sell or transfer the
vehicle or can also extend to purposive conduct by a buyer or transferee.
While the parties do not point us to case law directly addressing the meaning of
the phrase “for the purpose of sale [or] transfer” in section 10802 or any Vehicle Code
definitions for this language, the code does include related concepts. The Vehicle Code
defines a “ ‘retail sale’ ” as “a sale of goods to a person for the purpose of consumption
and use, and not for resale to others, including, but not limited to, an arrangement where a
motor vehicle is consigned to a dealer for sale.” (§ 520.)
The Vehicle Code addresses transfer of title or any interest in or to a registered
vehicle. Section 5600, subdivision (a) provides that “[n]o transfer of the title or any
interest in or to a vehicle registered under this code shall pass, and any attempted transfer
shall not be effective, until the parties thereto have fulfilled” certain specified
requirements. In the same vein, section 5900 addresses “sale or transfer” and provides,
inter alia, that “[w]henever the owner of a vehicle registered under this code sells or
transfers his or her title or interest in, and delivers the possession of, the vehicle to
another, the owner shall, within five calendar days, notify the department of the sale or
transfer.” (§ 5900, subd. (a).) Further, section 640 defines a “ ‘transferee’ ” as “a person
16
There is no dispute here concerning the two other mens rea components of
section 10802. Killian does not contest that the evidence proved he knowingly tampered
with the VIN on the stolen truck and did so with the intention to misrepresent the identity
or prevent the identification of that truck. Further, as described ante, the statutory
language referencing import or export does not apply on these facts.
22
who has acquired the sole ownership of or an equity in a vehicle of a type required to be
registered under this code.”
Because the words “for the purpose of sale [or] transfer” are not specifically
defined in the Vehicle Code, we look to dictionary definitions for their usual and ordinary
meaning. (See In re N.R. (2023) 15 Cal.5th 520, 539; De Vries v. Regents of University
of California (2016) 6 Cal.App.5th 574, 590–591.)
A “purpose” is “[a]n objective, goal, or end.” (Black’s Law Dict. (11th ed. 2019)
p. 1493, col. 1; see Webster’s Third New Internat. Dict. (1993) p. 1847, col. 1
[“something that one sets before himself as an object to be attained: an end or aim to be
kept in view in any plan, measure, exertion, or operation”].)
The noun “sale” means “the act of selling : a contract transferring the absolute or
general ownership of property from one person or corporate body to another for a price
(as a sum of money or any other consideration).” (Webster’s Third New Internat. Dict.
(1993) p. 2003, col. 1; see Black’s Law Dict. (11th ed. 2019) p. 1603, col. 2 [“sale”
means “[t]he transfer of property or title for a price”]; see also Webster’s Third New
Internat. Dict. (1993) p. 2061, col. 3 [the verb “sell” means “to give up (property) to
another for money or other valuable consideration”].)
The noun “transfer” is defined, inter alia, as: “1a: the conveyance of right, title, or
interest in either real or personal property from one person to another by sale, gift, or
other process b: the removal or acquisition of property by mere delivery with intent of the
parties involved to transfer the title . . . 2: an act, process, or instance of transferring:
transference.” (Webster’s Third New Internat. Dict. (1993) p. 2427, col. 1, boldface,
capitalization, & spaces omitted; see Black’s Law Dict. (11th ed. 2019) p. 1803, col. 1
[“1. Any mode of disposing of or parting with an asset or an interest in an asset . . . . 2.
23
Negotiation of an instrument according to the forms of law. 3. A conveyance of property
or title from one person to another.”].17)
Similarly, the Civil Code provides that “[t]ransfer is an act of the parties, or of the
law, by which the title to property is conveyed from one living person to another.” (Civ.
Code, § 1039.)
Our Supreme Court has stated that “while the word ‘transfer’ as used in the Civil
Code indicates the passing of title from one person to another, in its ordinary use it has a
very general meaning, including the removal of a thing from one place or person to
another, the changing of its control or possession or the conveyance of title to it. It is also
true that a ‘transfer’ of property may be effected by delivery of its possession to another.”
(Commercial Discount Co. v. Cowen (1941) 18 Cal.2d 610, 614; see also People v.
Wimer (2022) 74 Cal.App.5th 113, 137 [“ ‘Transfer,’ a term not defined in [Penal Code
section 311], means ‘[t]o convey or remove from one place or one person to another.’ ”],
citing Black’s Law Dict. (11th ed. 2019) p. 1803, col. 2; Merriam-Webster’s Collegiate
Dict. (11th ed. 2014) p. 1328.)
Killian asserts “[i]t is axiomatic that a person cannot sell a vehicle to himself.” He
further asserts that “to violate section 10802, a person must have the purpose, when
wrongfully altering or modifying a VIN number, of selling, transferring, importing or
exporting the vehicle so modified to another person.”18
17
The verb form of “transfer” is defined, inter alia, as “1a: to carry or take from
one person or place to another: transport, remove . . . b: to move or send to a different
location esp. for business, vocational, or military purposes . . . c: to cause to pass from
one person or thing to another: transmit . . . d: to cause to transform: change . . . 2: to
make over or negotiate the possession or control of (a right, title, or property) by a legal
process usu[ally] for consideration: convey.” (Webster’s Third New Internat. Dict.
(1993) pp. 2426–2427, col. 3, boldface, capitalization, & spaces omitted.)
18
Because the jury was not instructed on “import” and “export,” we do not address
Killian’s argument that section 10802 cannot be satisfied by a purpose of import or
export to oneself.
24
Killian and the Attorney General seemingly agree that the purposive transfer under
section 10802 must involve a conveyance of the motor vehicle or motor vehicle part from
one person to another.19 However, the parties dispute whether the purposive transfer
from one person to another is limited to that of the transferor.
In Joiner, the Court of Appeal addressed whether there was sufficient evidence to
support convictions under section 10802. (See Joiner, supra, 84 Cal.App.4th at pp. 964–
971.) One of the defendants in Joiner, Robin Beames (Robin), was a licensed “vehicle
verifier,” i.e., a person who inspects VIN’s and completes documents attesting to their
correctness. (Id. at pp. 954–955, 969–970; see § 675.5.) On appeal, Robin argued “there
was no evidence presented that she personally ever switched a VIN plate from one
vehicle to another.” (Joiner, at p. 969.) The Attorney General countered that there was
evidence showing that “Robin was responsible for verifying vehicles with obviously
tampered VIN plates” and “this activity constitutes falsifying vehicle identification
numbers with the intent to misrepresent the identity of the vehicles.” (Ibid.)
The Joiner court concluded that Robin was properly convicted of three counts
under section 10802 based on her acts of falsely verifying the VIN’s of three vehicles in
Department of Motor Vehicles (DMV) documents “to facilitate documentary transfer and
registration” of those vehicles. (Joiner, supra, 84 Cal.App.4th at p. 971.) The evidence
showed “as to each of the vehicles involved, that the VIN plates all appeared to have
been tampered with” (id. at pp. 970–971) and other VIN’s on the vehicles were missing
and/or non-matching. (Id. at p. 971; see id. at pp. 957–961.)
The Joiner court explained its conclusion regarding the sufficiency of the evidence
as follows: “[T]he jury could reasonably infer that when Robin verified the vehicles, she
19
Neither party argues that the “transfer” purpose includes an objective to move
the motor vehicle or part from one place to another. We thus do not consider whether a
purpose to physically move a motor vehicle or part associated with the tampered VIN
would satisfy section 10802’s mens rea component.
25
was aware [that another defendant,] Joiner had tampered with the VIN plates. In
addition, the jury could reasonably infer that she knowingly falsified her verification of
the VINs with the intent to misrepresent them to the DMV so the vehicles could be
transferred and registered as documented by her verification. In other words, Joiner
switched the VIN plates to disguise the true identity of the vehicles for later transfer, and
Robin falsified the documents pertaining to the disguised vehicles to facilitate the
documentary transfer and registration. This was all done for the purpose of
misrepresenting and hiding the true identity of the vehicles.” (Joiner, supra, 84
Cal.App.4th at p. 971.)
Considering the language of section 10802—including the plain meaning of the
words “purpose,” “sale,” and “transfer”—and the reasoning of the court in Joiner, we
decide that the phrase “for the purpose of sale [or] transfer” includes a defendant who
harbored an objective to facilitate a conveyance of the motor vehicle or motor vehicle
part itself or an interest thereto (whether or not accompanied by consideration) when
tampering with a VIN. Put differently, the purposive sale or transfer required by section
10802 encompasses a defendant who harbored a goal to enable such a conveyance,
regardless of whether the defendant intended to act as a seller, buyer, transferor, or
transferee in the conveyance. As long as the fact finder concludes beyond a reasonable
doubt that when the defendant committed the act of VIN tampering he or she intended to
prevent the identification of the motor vehicle (or vehicle part) and did so for the purpose
of facilitating a conveyance of the motor vehicle or motor vehicle part, the defendant can
be convicted of the crime. The defendant’s precise role in the conveyance as buyer,
seller, transferor, or transferee is not determinative.
This construction of section 10802’s purposive language accords with section
10803, subdivision (b)’s use of identical language. Section 10803, subdivision (b)
criminalizes possession of multiple motor vehicles or motor vehicle parts with certain
mental states, including “purpose of sale, transfer, import, or export.” The subdivision
26
states in relevant part: “Any person who possesses, for the purpose of sale, transfer,
import, or export, more than one motor vehicle or parts from more than one motor
vehicle, with the knowledge that the vehicle identification numbers of the motor vehicles
or motor vehicle parts have been altered, counterfeited, defaced, destroyed, disguised,
falsified, forged, obliterated, or removed for the purpose of misrepresenting the identity
or preventing the identification of the motor vehicles or motor vehicle parts, is guilty of a
public offense.” (Ibid.)
Under section 10803, subdivision (b), the purposive conduct mental state must
coincide with possession of multiple motor vehicles or parts. Section 10803, subdivision
(b) thus criminalizes possession of the vehicle or part with the tampered VIN, whereas
section 10802 targets the person who engages in the VIN tampering. There is no
incongruity between section 10802’s prohibition on tampering with a VIN while
harboring an objective to facilitate a conveyance of the motor vehicle or part and section
10803, subdivision (b)’s prohibition on possessing multiple motor vehicles or parts
knowing that the VINs have been tampered with while harboring that same objective.
Furthermore, our construction of section 10802 does not render it or section 10803
duplicative of or otherwise incompatible with the misdemeanor offenses that prohibit
VIN alteration without DMV authorization (§ 10750, subd. (b)) or knowingly buying,
selling, offering for sale, receiving, or possessing any vehicle or part from which a VIN
“has been removed, defaced, altered, or destroyed” (unless authorized by DMV).
(§ 10751, subd. (a).) Section 10750 does not include the requirement that the VIN
alteration be done for the purpose of transfer or sale; section 10751 does not require that
the buyer or seller alter the VIN to be convicted of the offense.
Having decided that section 10802 applies to tampering with a single VIN and
associated motor vehicle and can extend to the transferee in a conveyance as long as they
have the required purpose and intent, it is clear that substantial evidence supports
Killian’s conviction of count 3. The evidence here permitted the jurors to reasonably
27
deduce that Killian disguised the VIN on the stolen truck while harboring the goal of
facilitating the conveyance of an interest in that truck from Michael B. and/or Chris
Marker to himself. That this purposive sale or transfer involved Killian as a buyer or
transferee does not defeat criminal liability under section 10802.
Furthermore, the evidence supports the jury’s implicit finding that Killian did the
act of VIN tampering for the purpose of facilitating the transfer of the vehicle from
Michael B. and/or Chris Marker to himself. In particular, the short period between the
original theft of the vehicle and Killian’s purchase of it from Marker supports the jury’s
conclusion that he committed the act of tampering for the purpose of transferring it to
himself. (Cf. Joiner, supra, 84 Cal.App.4th at p. 968 [“The actual sale, transfer, import
or export need not be completed as long as the VIN is changed for one of those
purposes.”].) Based on the evidence presented and given Killian’s failure to challenge
the other requisite elements of section 10802, we conclude that there is sufficient
evidence for a reasonable juror to find Killian guilty, beyond a reasonable doubt, on
count 3.
b. Jury Instructions on Section 10802
In the alternative to his claim of insufficient evidence, Killian asserts instructional
error.
As detailed ante (pt. II.A.1.), the trial court instructed the jury with language
(agreed to by the parties) that essentially mirrored the language of section 10802. In
addition, the court responded to a jury question (i.e., “Under Vehicle Code [section]
10802 (VIN alteration) does transfer include transfer of ownership of the vehicle to
himself?”) by directing the jury back to its final instructions. (See pt. II.A.1., ante.)
Although Killian’s defense counsel objected to a proposed “ ‘yes’ ” answer to the jury’s
question, counsel said the defense was satisfied with the response ultimately provided.
Killian contends that if we agree with his proposed construction of section 10802
that he must have had the purpose of selling or transferring the stolen vehicle to another
28
person but conclude that there was sufficient evidence of a purposive sale or transfer of
the stolen vehicle to another person, his conviction “must be reversed based on the
combined effect of the court’s misinstruction on this element and its failure to respond
correctly to the jury’s question during deliberations.” He claims that he was deprived of
his right to jury findings as to all elements under section 10802 because the trial court
“failed to explain that the ‘purpose of sale or transfer’ required a ‘transfer’ be to another
person, and not to the defendant himself.”
The Attorney General counters that Killian forfeited his instructional error claim
because his defense counsel helped to craft the final jury instruction, did not object to the
instruction, and did not request a definition of transfer. The Attorney General similarly
asserts that Killian forfeited his claim regarding the trial court’s answer to the jury’s
question during deliberation because defense counsel agreed to the trial court’s answer,
which directed the jurors to the instructions already given and told them to apply the
ordinary, everyday meaning of words. Further, the Attorney General contends that the
trial court fully and fairly instructed the jury on the elements of section 10802, and,
regardless, any alleged instructional error was harmless.
Assuming without deciding that Killian’s instructional error claim is not forfeited,
we are not persuaded that the trial court erred when instructing the jury on count 3 or in
answering the jury’s question. “A court’s duty to define statutory terms ‘arises where the
terms have a technical meaning that is peculiar to the law.’ [Citation.] In contrast,
‘[w]hen a word or phrase “ ‘is commonly understood by those familiar with the English
language and is not used in a technical sense peculiar to the law, the court is not required
to give an instruction as to its meaning in the absence of a request.’ ” ’ ” (People v.
Krebs (2019) 8 Cal.5th 265, 331–332.)
Purpose, sale, and transfer are commonly understood terms. The trial court used
the words as they appear in the statute when instructing the jury and did so with Killian’s
consent. The instruction completely and correctly stated all the elements of the offense.
29
Furthermore, we discern no abuse of discretion in the trial court’s response to the
jury’s question whether “transfer include[s] transfer of ownership of the vehicle to
himself.” The jury’s question is not completely clear because it does not articulate who
the jury had in mind as the transferor (i.e., whether it was Marker or perhaps Killian).
Given this lack of clarity and the defense’s stated satisfaction with the court’s answer, we
cannot conclude that the court abused its discretion by referring the jurors back to the
final instructions and telling them that undefined words should be given “their ordinary,
everyday meanings.” Under the ordinary meaning of the words in the instruction
regarding the purposive conduct element, there is a reasonable likelihood the jurors
understood the court’s final instruction in accord with the construction stated above (see
pt. II.A.4.a.3., ante), including that the purposive sale or transfer involve a conveyance
from one person to another person.
Moreover, even assuming arguendo the trial court erred in answering the jury’s
question, we cannot conclude, under Watson, that Killian “ ‘has demonstrated that it is
“ ‘reasonably probable that a result more favorable to [him] would have been reached in
the absence of the error.’ ” ’ ” (Fleming, supra, 27 Cal.App.5th at p. 768.) As discussed
ante, the evidence supported that Killian had in mind the goal of enabling the conveyance
of the stolen truck from another to himself when he knowingly tampered with the truck’s
VIN with the intent to misrepresent the identity or prevent the identification of that truck.
For these reasons, we reject Killian’s alternative claim of instructional error.
B. Penal Code Section 654
Killian contends the trial court erred in imposing a consecutive sentence for his
conviction on count 3 and instead should have stayed the punishment under Penal Code
section 654. He asserts that in this case “there was one criminal purpose: for [him] to
establish a colorable claim to continued possession of the stolen truck, with the knowing
possession of [the] stolen vehicle and the VIN alteration two steps toward this larcenous
goal.” He further asserts that “[t]he two acts here – purchasing a stolen vehicle, then
30
attempting to transplant the VIN number from another vehicle – were part of a single
scheme to make the stolen car [his] own car.” The Attorney General counters that
“[b]ecause [Killian] committed two different acts in furtherance of two different criminal
purposes, [Penal Code] section 654 does not preclude multiple punishment[s].”
Penal Code section 654 “precludes multiple punishments for a single act or
indivisible course of conduct.” (People v. Assad (2010) 189 Cal.App.4th 187, 200.)
“[T]he purpose of [Penal Code] section 654 ‘is to insure that a defendant’s punishment
will be commensurate with his culpability.’ ” (People v. Latimer (1993) 5 Cal.4th 1203,
1211.)
Application of Penal Code section 654 “requires a two-step inquiry, because the
statutory reference to an ‘act or omission’ may include not only a discrete physical act
but also a course of conduct encompassing several acts pursued with a single objective.”
(People v. Corpening (2016) 2 Cal.5th 307, 311.) Only if the case involves more than
one act does a court consider whether the case involves a course of conduct. (Ibid.) “At
step one, courts examine the facts of the case to determine whether multiple convictions
are based upon a single physical act.” (Id. at p. 312.) If the convictions involve more
than one act, the court reaches “step two of the [Penal Code] section 654 analysis:
whether the [course of conduct] involved multiple intents and objectives.” (Id. at p. 316.)
At step two, whether crimes arise from an indivisible course of conduct turns on the
perpetrator’s intent and objective. (People v. Harrison (1989) 48 Cal.3d 321, 335
(Harrison).) “If all of the offenses were incident to one objective, the defendant may be
punished for any one of such offenses but not for more than one.” (Neal v. State of
California (1960) 55 Cal.2d 11, 19, overruled in part on another ground in People v.
Correa (2012) 54 Cal.4th 331, 341.)
Whether a defendant harbored a single intent—and thus a single objective—is a
factual question; the applicability of Penal Code section 654 to settled facts is a question
of law. (Harrison, supra, 48 Cal.3d at p. 335.) An appellate court will sustain a trial
31
court’s implied factual determination in the application of Penal Code section 654 if
supported by substantial evidence. (People v. Osband (1996) 13 Cal.4th 622, 730–731;
see also People v. Venegas (2020) 44 Cal.App.5th 32, 38.)
There is no dispute that Killian’s convictions on counts 2 and 3 involve more than
one act. Thus, the question under Penal Code section 654 is whether Killian’s course of
conduct involved multiple intents and objectives.
We conclude that substantial evidence supports the trial court’s implicit
determination that Killian harbored multiple intents and objectives. The prosecution
proved that Killian bought and took possession of Michael B.’s truck from Marker
knowing that it had been stolen. (See Pen. Code, § 496d, subd. (a).) Killian’s own
testimony supports that his intent and objective was to obtain a working truck so that he
could move from Greene’s property to Kentucky. Regarding the VIN tampering, Killian
admitted that he placed the VIN from his broken-down truck onto the stolen truck
because he “was trying to save money on registration” and hide its identity. Killian’s
intent and objective for the VIN tampering was not incident to buying and receiving the
stolen truck. Rather, he tampered with the VIN for additional, distinct reasons, and his
buying and possessing a stolen vehicle were not a preliminary step to tampering with its
VIN. There was no need for him to tamper with the VIN to possess and control the
stolen truck as if he owned it.
We are not persuaded by Killian’s reliance on People v. Kenefick (2009) 170
Cal.App.4th 114 and Burris v. Superior Court (1974) 43 Cal.App.3d 530. Those cases
are materially distinguishable from the present case because the various acts in those
cases all related to a single objective to unlawfully obtain money. (See Kenefick, at
pp. 124–125; Burris, at pp. 535–536.) Here, Killian’s acts involve more than one
objective.
32
Based on the evidence in this case, we conclude that the trial court properly
imposed unstayed sentences on counts 2 and 3 because Penal Code section 654 does not
apply to those counts.
C. Prior Strike Conviction
In his opening brief Killian contends that there was insufficient evidence to prove
he had suffered a prior strike conviction for assault with a deadly weapon under Penal
Code section 245, former subdivision (a)(1).
The Attorney General responds that Killian misreads the record regarding the prior
strike conviction allegation, in that the trial court did not find true a prior strike
conviction for assault with a deadly weapon. Rather, the trial court only found true a
prior strike conviction based on Killian’s prior conviction for assault with a firearm under
Penal Code section 245, subdivision (a)(2).
In his reply brief, Killian acknowledges that the trial court made its finding
regarding the truth of the information’s sole prior strike conviction allegation based only
on his prior conviction for the assault with a firearm. Nevertheless, Killian asks us to
“direct the trial court to enter a ‘not true’ finding” as to the assault with a deadly weapon
conviction that was included in the prior strike conviction allegation and “direct the trial
court to amend the minutes and abstract of judgment to reflect that only one of the two
charged strike priors was found true, and that the other alleged strike prior was found not
true.” Additionally, Killian requests that we “remand[] for resentencing so that the court
can properly exercise [Penal Code] section 1385 discretion based on the true finding of a
single strike, and not two strikes.”
We agree with Killian that, for clarity, the clerk’s minute order, dated July 15,
2022, should be amended to reflect that the trial court’s finding as to the truth of the prior
strike conviction allegation rested solely on Killian’s prior strike conviction for assault
with a firearm (Pen. Code, § 245, subd. (a)(2)). We will direct the clerk of the trial court
to do so. Given that impending clarification, we discern no need to further direct the trial
33
court to enter a separate not true finding as to the assault with a deadly weapon or by
means of force likely to produce great bodily injury conviction (Pen. Code, § 245, former
subd. (a)(1)), which also is mentioned in the information’s unitary prior strike conviction
allegation.
As for Killian’s request regarding the abstract of judgment, because that document
includes only a checkbox to indicate the trial court’s true finding for the “strike prior”
under Penal Code section 1170.12, and the amended minute order will now specify which
of the alleged assaults was found true under the prior strike conviction allegation, there is
no need to direct the clerk of the trial court to amend the abstract of judgment.
In addition, we will not remand this matter for resentencing because there is no
indication in the record that the trial court was ignorant of its prior ruling regarding the
truth of the prior strike conviction allegation when it ruled on Killian’s motion to strike
the prior strike. In fact, Killian’s motion reiterated that the court had “found [him] to
have suffered a prior strike conviction from March 7, 1996 for a violation of Penal Code
Section 245[, subdivision] (a)(2).” Furthermore, when arguing the motion at Killian’s
sentencing hearing, defense counsel twice mentioned the prior conviction as one having
been suffered under Penal Code section 245, subdivision (a)(2). Under these
circumstances, there is no reason for remand and resentencing.
D. Senate Bill 81
Effective January 1, 2022, Senate Bill 81 amended Penal Code section 1385,
subdivision (c) (hereafter, Penal Code section 1385(c)), to give trial courts more
discretion to strike sentence enhancements under certain circumstances.20 (See People v.
Burke (2023) 89 Cal.App.5th 237, 242 (Burke).)
20
The Legislature has amended Penal Code section 1385(c) twice since enacting
Senate Bill 81, but the more recent changes to Penal Code section 1385(c) do not affect
our analysis of Killian’s claim. (See Stats. 2022, ch. 58, § 15; Stats. 2023, ch. 131,
§ 160.)
34
Killian contends Penal Code section 1385(c), as amended by Senate Bill 81,
applies to strike priors under the Three Strikes law. He further asserts the Burke court’s
conclusion that amended Penal Code section 1385(c) does not apply to strike priors is
wrong and should not be followed, and this case should be remanded for a new
sentencing hearing at which Penal Code section 1385(c) can be applied. Killian
acknowledges that his defense counsel failed to raise this issue in the trial court.
Nonetheless, he asserts that we should consider his claim of error because it presents a
purely legal issue or, alternatively, defense counsel provided constitutionally ineffective
assistance of counsel.
The Attorney General responds that Killian’s claim lacks merit because Senate
Bill 81 does not apply to strike priors because the Three Strikes law involves an
alternative sentencing scheme rather than a sentence enhancement. In addition, the
Attorney General contends that forfeiture is “obvious” here and, even assuming deficient
performance by defense counsel, Killian has not demonstrated prejudice for his claim of
ineffective assistance of counsel.
Assuming arguendo that forfeiture does not apply in this circumstance, we will
address the merits of Killian’s claim.21
Penal Code section 1385, subdivision (a), authorizes trial courts to dismiss an
action “in furtherance of justice.” (Pen. Code, § 1385, subd. (a).) In Romero, the
California Supreme Court held that a trial court’s discretion under Penal Code section
1385, subdivision (a) includes the power to dismiss a prior conviction alleged under the
Three Strikes law. (Romero, supra, 13 Cal.4th at pp. 529–530; see People v. Williams
(1998) 17 Cal.4th 148, 158 [a court may “strike or vacate an allegation or finding under
21
Because we consider Killian’s claim on the merits, we need not address his
alternative claim of ineffective assistance of counsel.
35
the Three Strikes law that a defendant has previously been convicted of a serious and/or
violent felony”].)
Penal Code section 1385, subdivision (b), pertains to enhancements. It states, “If
the court has the authority pursuant to subdivision (a) to strike or dismiss an
enhancement, the court may instead strike the additional punishment for that
enhancement in the furtherance of justice in compliance with subdivision (a).” (Pen.
Code, § 1385, subd. (b)(1).)
Senate Bill 81 amended section 1385 to add subdivision (c), which “expressly
applies to the dismissal of an ‘enhancement.’ ” (Burke, supra, 89 Cal.App.5th at p. 243;
Stats. 2021, ch. 721, § 1.) The new subdivision lists specific mitigating factors a court
must consider when deciding whether to strike an enhancement from a defendant’s
sentence in the interest of justice. (Pen. Code, § 1385(c); Burke, at pp. 242–243.)
We review de novo, as a matter of statutory interpretation, whether the
amendments to section 1385 enacted by Senate Bill 81 apply to prior strike convictions.
(Burke, supra, 89 Cal.App.5th at p. 242.)
In Burke, the Third District Court of Appeal looked to the statutory language as
the primary indication of legislative intent, noting Penal Code section 1385’s express
application to “an ‘enhancement.’ (§ 1385, subd. (c)(1).)” (Burke, supra, 89 Cal.App.5th
at p. 243.) The court considered both the “well-established technical meaning [of
‘enhancement’] in California law” (ibid.) and case authority concluding that the Three
Strikes law is not an enhancement but “an alternative sentencing scheme for the current
offense” (ibid.). The court reasoned that since words in a statute “ ‘are presumed to be
used in accordance with their established legal or technical meaning’ ” (ibid.), and it is
“well established that the Three Strikes law is not an enhancement” (ibid.), Penal Code
section 1385(c) does not apply to the Three Strikes law. (Id. at p. 244.)
There is no split of authority on this issue among the California Courts of Appeal
post Burke. The First District Court of Appeal, Division Five recently examined
36
additional arguments—based on Penal Code section 1385, subdivision (c)(2)(G)—that
were not addressed by the Burke court. (People v. Olay (2023) 98 Cal.App.5th 60, 66–
69.) The Olay court “still agree[d] with Burke’s ultimate conclusion—that [Penal Code]
section 1385, subdivision (c) does not apply to the Three Strikes law.” (Id. at p. 67.)
We agree with the holdings in Burke and Olay that Penal Code section 1385,
subdivision (c)’s provisions regarding enhancements do not apply to the Three Strikes
law. (Burke, supra, 89 Cal.App.5th at p. 244; Olay, supra, 98 Cal.App.5th at p. 69;
accord People v. Tilley (2023) 92 Cal.App.5th 772, 776, fn. 2.)
We are not persuaded by Killian’s contrary interpretation of the statute and, thus,
do not agree that this case must be remanded for a new sentencing hearing under Penal
Code section 1385(c).
III. DISPOSITION
The judgments in docket Nos. 22CR003439 and 22CR006162 are affirmed. The
victim restitution order, dated November 10, 2022 (docket No. 22CR003439), is
affirmed.
The clerk of the Monterey County Superior Court is directed to amend the minute
order, dated July 15, 2022 (docket No. 22CR003439), to indicate that the trial court found
the prior strike conviction allegation (Pen. Code, § 1170.12, subd. (c)(1)) true based only
on defendant’s prior conviction on March 7, 1996, for a violation of Penal Code section
245, subdivision (a)(2) (Monterey County Superior Court docket No. SC951263).
37
______________________________________
Danner, J.
WE CONCUR:
____________________________________
Bamattre-Manoukian, Acting P. J.
____________________________________
Bromberg, J.
H050320, H050557
People v. Killian