People v. Vantrease CA2/3

Filed 1/14/21 P. v. Vantrease CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B299497
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. MA075232
v.
PAUL IVAN VANTREASE, JR.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Charles A. Chung, Judge. Judgment
of conviction affirmed, sentence vacated and remanded.
Michelle T. Livecchi-Raufi, under appointment by
the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Assistant Attorney General, Idan Ivri and Marc A. Kohm,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
A jury convicted Paul Ivan Vantrease, Jr., of receiving
a stolen vehicle and possessing burglar’s tools. He appeals,
and we affirm his conviction and remand for resentencing.
BACKGROUND
An amended information charged Vantrease with felony
driving or taking a vehicle without consent (Veh. Code, § 10851,
subd. (a), count 1), receiving a stolen vehicle (Pen. Code, § 496d,1
count 2), and misdemeanor possession of burglar’s tools (§ 466,
count 3). The information alleged seven prior prison terms.
(§ 667.5, subd. (b).)
At trial, Karen Sanzone testified her father owned a large
lot in Palmdale, where he lived with his wife and Karen’s brother.
A tenant, James Todd Brown, also lived on the property, in a
compound fenced off with old garage doors. On January 13, 2018,
Sanzone went to the property and found her father, his wife, and
Sanzone’s brother had been murdered. The murderer was their
tenant Brown, who was found dead (an apparent suicide) in his
Toyota truck on February 4, 2018.
Sanzone and her sister were the executors of her father’s
estate, which included the Palmdale property. When Sanzone
went to clean up, she found Brown had left behind vehicles,
electrical equipment, trailers, and other items inside his
compound. Brown’s brother executed a waiver of claim of assets
releasing to Sanzone and her sister all Brown’s possessions
on the property, including a 1992 Chevrolet Silverado truck
in average condition. Sanzone had the certificate of title to
the truck.
1 All subsequent statutory references are to the Penal Code
unless otherwise indicated.
2
About three months after the murders, Sanzone went
to the Palmdale property and noticed the 1992 Silverado was
missing. On May 9, 2018, she reported the truck stolen. She
did not know Vantrease, and never gave him or anyone else
permission to take or drive the Silverado.
Deputy Sheriff Brenda Alcantara testified she had
investigated many car thefts and had seen shaved keys, a
common burglary tool, dozens of times. On November 10, 2018,
she responded to a call for service on a suspicious person inside
a vehicle outside of another Palmdale address. She found a
parked Silverado with Vantrease asleep in the driver’s seat.
Deputy Alcantara ran a check on the vehicle’s license plate and
it came back stolen. When she was unable to contact Sanzone,
she had the truck towed. The Silverado had over 220,000 miles
on its odometer.
Another deputy searched Vantrease and found car keys
in his left front pants pocket. One was a Honda key, two were
Toyota keys, and one was a GM key. Some of the keys had been
shaved down so they would fit into an ignition to start a vehicle.
Deputy Alcantara tried all the keys in the Silverado’s ignition,
and when she turned a Toyota key that was worn (but not
shaved), the truck started.
There were cuts and scrapes around the ignition hole of
the Silverado, and the ignition clearly had been tampered with.
Deputy Alcantara concluded the Silverado had been stolen, and
Vantrease’s possession of the shaved keys showed he intended
to steal the truck. She arrested Vantrease.
Sheriff’s Detective Jeremiah Fletcher investigated the
theft of the Silverado. He had seen hundreds of shaved keys.
A shaved key was shaved or abraded to wear down the teeth
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and make the key thinner to fit inside an ignition the key was
not made for, or to open a car door. The brand of the shaved key
did not have to match the make of the car. He could see shave
marks on the Honda key and one of the Toyota keys. The teeth
of the Toyota key that started the Silverado were worn down,
but he did not see shave marks. A worn key was not necessarily
a burglary tool.
For a year before Detective Fletcher became a police officer,
he was a car salesman. He regularly used Kelley Blue Book
to find the value of a vehicle. A week before his testimony, he
used kelleybluebook.com to calculate the value of the Silverado,
entering the make, model, mileage, and year (the website
assumes the car’s condition is good to better). The Silverado’s
value ranged from $962 to over $3000, with a “fair purchase
price” of $2,119. At an auction, the opening bid for a car would
start out very low. The selling price was not the value of the car,
but whatever the buyer was willing to pay. The vehicle report
on the Silverado rated the condition of the wheels and tires
as poor. There were dents and scratches on the vehicle, and the
rear bumper was damaged. Detective Fletcher could see from a
photograph that the truck’s ignition had been damaged, either by
someone forcing something into it, or by unnatural manipulation.
A representative of the company that towed and impounded
the Silverado testified it sold at auction for $400.
Deputy Zachary Marshall testified Vantrease was driving
a stolen vehicle on February 6, 2014, and possessed shaved keys.
Deputy Esteban Perez testified Vantrease was driving a stolen
vehicle on August 19, 2015, and again possessed shaved keys.
The prosecution introduced redacted copies of Vantrease’s two
convictions for felony vehicle theft.
4
In closing, the prosecutor argued when Vantrease was
found sleeping in the driver’s seat of the Silverado, he had shaved
keys and the Toyota key that started the scratched ignition,
and he knew the truck was stolen. Defense counsel argued the
prosecution had not proven beyond a reasonable doubt Vantrease
or anyone stole the truck, that Vantrease knew it was stolen,
or that the truck’s value was more than $950.
The court instructed the jury that count 1 and count 2 were
alternative charges, and if they found Vantrease guilty of one of
the two counts, they must find him not guilty of the other count.
The court also instructed the jury it could not convict Vantrease
of count 1 if it had a reasonable doubt that the Silverado was
worth more than $950. The jury found Vantrease not guilty
of driving or taking a vehicle without consent (count 1), and
guilty of receiving a stolen vehicle (count 2) and possessing
burglary tools (count 3).
Vantrease admitted six prior prison terms, and the court
sentenced him to nine years: the high term of three years on
count 2 (receiving a stolen vehicle) plus one year for each of
the six prior prison terms, with a six-month concurrent sentence
on count 3 (possession of burglary tools). The court imposed
a $2,700 restitution fine, and on each count a $40 court
operations fee and a $30 criminal conviction assessment.
Vantrease filed this timely appeal.
DISCUSSION
1. Proposition 47 does not reduce Vantrease’s conviction
for receiving a stolen vehicle to a misdemeanor
Vantrease argues the trial court erred when it did not
instruct the jury it must determine whether the truck was
worth more than $950 to find him guilty on count 2, because
5
Proposition 47 made receiving a stolen motor vehicle a
misdemeanor when the value of the stolen vehicle was $950
or less. (Section 496d makes receipt of a stolen vehicle a felony
without regard to the value of the vehicle.) After Vantrease filed
his opening brief, the California Supreme Court rejected this
argument, holding that Proposition 47 did not affect convictions
for receiving a stolen vehicle under section 496d. (People v.
Orozco (2020) 9 Cal.5th 111, 115, 123.)
2. The trial court did not abuse its discretion when it
admitted evidence of Vantrease’s prior convictions
Before trial, the prosecutor moved to admit seven prior
convictions dating from 2007 to 2015 to prove Vantrease’s motive,
opportunity, intent, plan, absence of mistake or accident, and
modus operandi. The trial court considered only the three
convictions for which the defense had received discovery. In
2015, Vantrease was found in a stolen vehicle with shaved keys.
In 2014, Vantrease was driving a stolen vehicle with two sets
of keys in his pockets, some of which were shaved. The trial court
excluded a 2011 conviction in which no shaved keys were found,
but admitted the 2015 and 2014 convictions. Although Evidence
Code section 1101, subdivision (b) (section 1101) did not allow
propensity evidence, evidence that was relevant to prove
knowledge was admissible. Shaved keys could be used to
steal cars, and “I think the fact that he has been arrested and
convicted twice in the past with shaved keys would go to show
that he has knowledge on how to use shaved keys, and that’s
what he had in the current case.” Defense counsel argued
the keys in this case looked very old but not shaved, and unlike
the 2014 and 2015 cases when Vantrease admitted the cars
were stolen, he claimed he had arranged to purchase the
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Silverado. The trial court pointed out a lower level of similarity
was required to show knowledge, and “I only intend to allow the
2014 and 2015 cases in this very, very limited fashion. We won’t
go into a lot of the facts. We will simply go into the fact that
a car was reported stolen. That he was apprehended, ultimately
convicted for the charge, and that in both instances he had a
shaved key. And that’s it.” The evidence would come in only
after a qualified witness identified a shaved key, and the court
saw no undue prejudice outweighing the probative value.
After Deputy Alcantara testified Vantrease possessed
shaved keys and a worn Toyota key started the Silverado,
defense counsel renewed her objection to allowing the prior
offenses into evidence. She believed the court had made
admission of the prior offenses contingent on a showing that
a shaved key had started the Silverado. The court responded:
“The [key] that was not shaved was the one
that worked. However, he was in possession
of shaved keys. [¶] I think the inferential
argument is this: Look, he is trying to steal
cars. He’s got shaved keys. He’s got a worn-
down key. None of the shaved keys worked on
the Chevrolet but the worn-down key stamped
Toyota worked on the Chevrolet. [¶] So I think
the inferential argument is because he has
shaved keys, he was trying to steal a car with
those shaved keys. He got lucky because the
nonshaved key was the one that worked. [¶]
And then I think at that point knowledge
of what shaved keys are is important.”
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The trial court reaffirmed its ruling. A layperson would not
know what a shaved key was, but now the jury had seen shaved
keys, heard Vantrease had shaved keys when he was found in
the Silverado, “and then it’s learned that the defendant has had
shaved keys in the past before and . . . has stolen cars with those
shaved keys . . . . [I]n the past he has learned what shaved keys
are, what they look like, and how to use them.” The court limited
the evidence of past convictions to brief testimony and redacted
paper records.
The court instructed the jury to use the uncharged offenses
“for the limited purpose of deciding whether the defendant had
knowledge of shaved keys when he allegedly acted in this case,”
to consider whether the uncharged and charged offenses were
similar, and not to consider the evidence for any other purposes,
including to prove Vantrease had a bad character or was disposed
to commit crimes. The court also instructed the jury to convict
Vantrease of receiving a stolen vehicle only if he knew the vehicle
was stolen, and to convict him of possessing burglar’s tools only
if he possessed a shaved key “with the intent to feloniously break
and enter into a vehicle.”
Vantrease’s defense was that the legal ownership of the
truck was unclear and no substantial evidence showed he knew
the truck was stolen. The prosecution introduced the two prior
offenses involving shaved keys to prove knowledge. The defense
argued the prior offenses were dissimilar because the Toyota
key that started the Silverado was worn, not shaved, and so
the offenses were barred as propensity evidence that was more
prejudicial than probative under Evidence Code section 352.
Section 1101 addresses the risk that evidence of an
uncharged prior crime will lead a jury to convict the defendant
8
not on the evidence of the present crime, but on his propensity to
act as he did in the past. (People v. Thompson (1980) 27 Cal.3d
303, 318.) Subdivision (a) prohibits character evidence (including
uncharged crimes) to prove the defendant’s conduct. Subdivision
(b) allows evidence of uncharged crimes to prove a fact other than
the defendant’s character, such as motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or
accident. To prove knowledge, the uncharged conduct must be
similar enough to support the inference that what the defendant
learned from his prior experience provided the knowledge
necessary for the current offense, or that he probably had the
same intent in both instances. (People v. Hendrix (2013) 214
Cal.App.4th 216, 242-243 (Hendrix).)
We agree with the trial court that the two prior offenses
were similar enough to the charged offenses to support an
inference Vantrease knew that shaved keys were used to steal
vehicles. Therefore, his possession of shaved keys in this case
was relevant to prove he knew the Silverado was stolen. In both
prior offenses, as in this case, Vantrease was found in a stolen car
and possessed shaved keys. Knowledge that the Silverado was
stolen was essential to his jury conviction for receiving a stolen
vehicle, which required that he know the vehicle was stolen.
Knowledge that shaved keys were used to steal vehicles was also
relevant to his jury conviction for possession of burglary tools,
which required that he have the intent to break into a vehicle.
Although in this case the shaved keys did not start the Silverado,
the description of the prior offenses did not specify whether the
shaved keys had been used to start the stolen vehicles Vantrease
had been driving, and neither count of conviction in this case
required that the shaved keys started the truck. And as the court
9
pointed out, the key that did start the Silverado was a worn-down
Toyota key, which, like the shaved keys, would not normally
be used to drive the Chevrolet truck.
Nor did the trial court abuse its discretion in concluding
that the prejudicial effect of the evidence did not substantially
outweigh its probative value under Evidence Code section 352.
The bare-bones evidence that in 2014 and 2015 Vantrease had
been found in a stolen car while in possession of shaved keys did
not include any inflammatory detail, and so it did not uniquely
tend to evoke an emotional bias against Vantrease, or cause
the jury to prejudge him based on extraneous factors. (Hendrix,
supra, 214 Cal.App.4th at p. 246.)
The trial court did not abuse its discretion when it
admitted evidence of Vantrease’s prior offenses. As the court did
not violate section 1101, subdivision (b), Vantrease’s due process
rights are not implicated by the admission of the evidence.
(McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378, 1380, 1384-
1386.)
3. Prosecutorial misconduct does not require reversal
Vantrease labels as prejudicial prosecutorial misconduct
several statements the prosecutor made during closing and
rebuttal argument, and argues it is reasonably likely the jury
understood from the remarks it could use the prior convictions as
evidence of Vantrease’s propensity to commit the charged crimes.
The prosecutor reminded the jury Vantrease possessed
shaved and off-brand keys, and the truck ignition had been
tampered with. Referring to the vehicle theft count (which
resulted in acquittal), the prosecutor continued:
“He’s been convicted of this before. Not one
time but twice. And it’s pretty recently. Right?
10
It was 2014 and 2015. It’s the same charge,
ladies and gentlemen, that you are sitting here
for today. And you absolutely have to take
that into account. You heard those two police
officers at the end of the trial who came in.
They said, yep, same thing. Stolen car. He had
those shaved keys again. I mean, he knows
what he is doing. He knows he is not just
walking around with some old keys. He is
breaking into cars and driving stolen cars.
That is what he is doing.”
Discussing count 2, receiving a stolen vehicle (which resulted
in conviction), the prosecutor acknowledged she had to prove
Vantrease knew the Silverado was stolen, and added:
“Pretty much for the same reasons, it’s clear
that he knew that this was a stolen car. Right?
I mean, you don’t just get into a car without
the right key and without having any
connection to it and just start using that car.
It makes no sense, especially if you are a
person that knows exactly what you are doing
because the conviction tells you that twice
before you have done the same thing. You have
been found guilty of it. And you had those
shaved keys both times,”
which could be used pick a lock and open a car door as well as
actually start a car. Vantrease’s prior convictions showed
he knew shaved keys could be used to steal a car, so the prior
convictions were also relevant to count 3, possession of burglary
tools (which resulted in conviction). She reminded the jury not
11
to forget “that he has done this before.” Defense counsel did not
object to any of these remarks.
In her closing argument, defense counsel pointed out
Vantrease pleaded no contest to both prior convictions (“[h]e
was not trying to get out of something that he did there”). She
argued the jury could not use the prior convictions as propensity
evidence (“you did it before, you did it again”) but only to show
Vantrease had experience with shaved keys. She suggested
Brown might have sold the Silverado for cash to get money to
flee after he murdered Sanzone’s father. The Toyota key that
started the Chevrolet Silverado was not shaved. If Vantrease
also possessed shaved keys, possessing shaved keys alone did
not prove his intent.
In rebuttal, the prosecutor stated: “The defendant’s
two convictions for the same thing that we are here for again
today. Yeah, you are using that to show that he had knowledge,
right? He knew about those shaved keys. But the convictions
themselves, they are also evidence. You don’t just take that in
isolation, right? You can and should use the fact that he’s been
convicted of this same thing when you are assessing everything
in this case.” (Italics added.) Defense counsel objected, “That
is not the state of the law,” and the court overruled the objection.
The prosecutor continued: “[W]hat’s with the shaved keys? And
that is really the issue here. And when you look at that, then . . .
[t]he picture becomes more clear. When he has shaved keys, he
knows exactly what they are, he knows what they were used for,
and he knew on this night what he was doing with shaved keys
in that car.”
Vantrease argues the italicized statements above, in the
light of the prosecutor’s other statements (which he does not
12
separately assign as misconduct), told the jury it “could and
should assess and consider appellant’s disposition to do such
acts based on his criminal history.”
A prosecutor has wide latitude in closing argument, and
his remarks are misconduct only if the defendant can show a
reasonable likelihood the jury understood the comments in an
improper manner. (People v. Frandsen (2019) 33 Cal.App.5th
1126, 1151.) And “[j]uries are warned in advance that counsel’s
remarks are mere argument, missteps can be challenged when
they occur, and juries generally understand that counsel’s
assertions are the ‘statements of advocates.’ Thus, argument
should ‘not be judged as having the same force as an instruction
from the court. And the arguments of counsel, like the
instructions of the court, must be judged in the context in
which they are made. [Citations.]’ ” (People v. Gonzalez (1990)
51 Cal.3d 1179, 1224, fn. 21, quoting Boyde v. California (1990)
494 U.S. 370, 384-385.)
When the prosecutor told the jury to use Vantrease’s prior
convictions to show knowledge but also as evidence “that he’s
been convicted of this same thing,” she added to the prejudicial
effect of the other crimes evidence by advancing the “you did
it before, you did it again” inference of propensity forbidden by
section 1101. (See Hendrix, supra, 214 Cal.App.4th at pp. 250-
251 [improper to argue “ ‘we know that he acted the same way’ ”
when referring to uncharged conduct (italics omitted)].) “[T]he
argument did not advance the theory that defendant acted
with the requisite knowledge.” (Id. at p. 251.) The trial court
overruled the defense objection, and so did not admonish the jury
to disregard the remark.
13
Nevertheless, even when a defendant shows misconduct
by the prosecutor, reversal is not required unless he can show
prejudice. (People v. Fernandez (2013) 216 Cal.App.4th 540, 564.)
We evaluate prejudice under Chapman v. California (1967)
386 U.S. 18 when federal rights are implicated, and under
People v. Watson (1956) 46 Cal.2d 818 when only state law issues
are involved. (Fernandez, at p. 564.) Under Chapman, we ask
whether the prosecutor’s conduct rendered Vantrease’s trial
so fundamentally unfair that due process was violated, and
under Watson we ask whether the prosecutor used deceptive
or reprehensible methods to persuade the jury, making it
reasonably probable that Vantrease would have obtained
a more favorable result without the alleged misconduct.
(Fernandez, at p. 564.)
The prosecutor’s remarks did not render the trial
fundamentally unfair. Nor is it reasonably probable the jury
would have acquitted Vantrease on either count if the prosecutor
had not made the remarks. The evidence against him was
strong, and one remark in rebuttal argument would not be
likely to have swayed the jury. And although the jury heard that
Vantrease’s two prior convictions were for vehicle theft, the jury
did not conclude he “did it again” and convict him of vehicle theft.
Instead, the jury acquitted him of that count and convicted him
of the alternative count of receiving a stolen vehicle.
4. Senate Bill No. 136 requires striking Vantrease’s
six one-year prior prison term enhancements
Vantrease waived his right to jury trial and admitted
the six prior prison term allegations. The trial court imposed
one year for each of the six prior prison terms.
14
We agree with Vantrease that the six prison priors must
be stricken under Senate Bill No. 136, which took effect on
January 1, 2020, and amended section 667.5, subdivision (b).
The amendment states a one-year prior prison term enhancement
applies only if the defendant served the prison term for a sexually
violent offense as defined in Welfare and Institutions Code
section 6600, subdivision (b). (See Stats. 2019, ch. 590, § 1;
People v. Lopez (2019) 42 Cal.App.5th 337, 340-341.) The
amended statute applies to defendants whose cases are not
yet final. (Lopez, at pp. 341-342; People v. Gastelum (2020)
45 Cal.App.5th 757, 772-773.) None of Vantrease’s six prison
priors was for a sexually violent offense, and his conviction
is not yet final. Accordingly, we order them stricken.
The trial court stated: “I do recognize that there are
separate objectives and separate intents. However, for equity
sake I will run it [the six-month sentence for possession of
burglary tools] concurrent.” When the six one-year prior
prison terms are stricken, Vantrease’s nine-year sentence will
be reduced by six years. We remand for resentencing for the
trial court to determine whether equity requires a concurrent
term, given the shorter sentence.
5. Vantrease should raise any challenge to the fines
and fees on resentencing
The trial court imposed a restitution fine of $2,700
(§ 1202.4), a $40 court operations fee on each count (§ 1465.8),
and a $30 criminal conviction assessment on each count (Gov.
Code, § 70373). Vantrease argues the court should have held
a hearing to determine his ability to pay, citing People v. Dueñas
(2019) 30 Cal.App.5th 1157. The California Supreme Court
is currently considering whether a court must consider a
15
defendant’s ability to pay before imposing or executing fines,
fees, and assessments. (People v. Kopp (2019) 38 Cal.App.5th 47,
review granted Nov. 13, 2019, S257844.) Because we remand
for resentencing, we need not decide whether Vantrease is
entitled to an ability to pay hearing. Vantrease should raise
any challenge to the fees or fines at the sentencing hearing.
DISPOSITION
The sentence is vacated and the matter is remanded for
resentencing. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
LAVIN, Acting P. J.
DHANIDINA, J.
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