California Court of Appeals, Fourth District, Second Division
[255
Cal.Rptr.3d 278] APPEAL from the Superior Court of San
Bernardino County. John M. Tomberlin, Judge. Reversed with
directions. (Super.Ct.No. 16CR064675)
Page 226
COUNSEL
Nancy
Susan Brandt, Albany, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier
Becerra, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney
General, Arlene A. Sevidal and Elizabeth M. Kuchar, Deputy
Attorneys General, for Plaintiff and Respondent.
OPINION
SLOUGH,
J.
Page 227
LeAndre Martell and his girlfriend, Jasmine, were in the
process of moving from Los Angeles to Las Vegas when things
fell apart. The two had stopped over at Jasmine’s mother’s
home in Victorville and planned
Page 228
to complete the move to Las Vegas on October 6, 2016.
However, that morning, Martell told Jasmine he needed to get
some money, left in Jasmine’s 10-year-old Chevy Malibu, which
he had been driving with her permission for about a month,
and drove to Los Angeles. When he was late returning, Jasmine
called him, and Martell told her he wouldn’t move to Las
Vegas with her and wouldn’t return the car. The couple,
unsurprisingly, broke up, and Jasmine moved to Las Vegas
without Martell. A few days later she returned to Victorville
and reported her car stolen. She said she never told Martell
about the police report, and never contacted the police
again.
Despite their problems, the break-up didn’t take. Martell
helped her financially to get established in Las Vegas and
visited her a few times in late October and early November.
Though Jasmine said she had asked Martell repeatedly to
return the car, he didn’t return it during those visits. He
said she never asked for the car. Back in Los Angeles on
November 15, 2016, police stopped Martell while he was
driving the car and arrested him for driving with a suspended
license. They impounded the car and discovered it was
registered to Jasmine.
After
the arrest, Jasmine got her car and her boyfriend back. She
recovered the car from police impound, picked Martell up from
court, and the two drove to Las Vegas, where they finally set
up house together. He continued driving her car in Las Vegas
until she bought him another one. Though their relationship
was rocky, they stayed together through April 2017 when
Martell left her for another woman. Jasmine then lost the car
when it was impounded for illegal parking and she decided it
wasn’t worth the cost of getting it out.
Shortly
after the final breakup, a San Bernardino County jury tried
Martell and found him guilty of felony unlawfully taking [255
Cal.Rptr.3d 279] or driving a vehicle. Although it wasn’t
clear at the time, the California Supreme Court has since
held a defendant cannot be convicted of a felony for
unlawfully taking a vehicle with the intent to
permanently deprive the owner of possession unless it was
worth more than $950, though they can be convicted of a
felony for unlawfully driving a vehicle even if it
is worth less than that threshold amount. (People v.
Page (2017) 3 Cal.5th 1175, 225 Cal.Rptr.3d 786, 406
P.3d 319.) Though the trial court correctly determined the
evidence wouldn’t support a jury finding that Jasmine’s car
was worth more than $950, it erroneously concluded Martell
could be convicted of felony unlawful taking such a low-value
vehicle. This error infected the court’s jury instructions.
On
appeal, Martell argues the trial court prejudicially failed
to instruct the jury it had to find the car was worth more
than $950 to convict him of a felony for permanently taking
the vehicle. Under the standard we must apply on review, he
is correct. (People v. Aledamat (2019) 8 Cal.5th 1,
251 Cal.Rptr.3d 371, 447 P.3d 277.)
Page 229
There
was evidence from which a reasonable jury could have found
Martell took the car with the intent to permanently deprive
Jasmine of possession when he drove it to Los Angeles on
October 6. There was also evidence from which a reasonable
jury could have found Martell committed unlawful posttheft
driving of the vehicle when the police stopped him on
November 15. That doesn’t end our inquiry, however, because
the evidence supported a further jury finding— that
Jasmine had acquiesced in Martell’s use of the car before
Martell’s arrest on November 15. If they so found, they could
not have convicted Martell of posttheft driving.
Consequently, there is reasonable doubt whether the jury
(properly) convicted Martell of felony unlawful
driving or (improperly) convicted Martell of felony
unlawful taking. Since there is a reasonable chance
the jury convicted under the improper theory, Martell is
entitled to have his conviction reduced to a misdemeanor or
to be retried for a felony conviction under a proper legal
theory.
I
FACTS
A.
Martell and Jasmine Become Romantically Involved and
Jasmine Lets Martell Use Her Car
In
2016, Jasmine and her son lived in Los Angeles with her
father, who supported them. She met LeAndre Martell online
and they began a romantic relationship during the summer.
According to Jasmine, the relationship started in June and
lasted until April 2017. Martell said they met online in
June, but didn’t begin seeing each other seriously until
August. At the time, Martell was in another romantic
relationship with a woman named Kiesha and lived in Kiesha’s
home.
In
September, Kiesha kicked Martell out because she was angry he
was spending time with Jasmine. Martell turned to Jasmine for
help, and she drove to pick him up in her 2006 Chevy Malibu.
They returned to Jasmine’s home, where she told him he could
use the car for the night, but asked him to return it the
next morning so she could take her son to school. According
to Martell, he returned the car, they dropped her son at
school, and she let him use the car again until her son’s
school let out. Martell said that arrangement continued until
October. He said she gave him the keys and let him use the
car freely. "During the week days I make sure she was
able to handle business, and I kept the vehicle."
Jasmine’s father was not happy about the arrangement. She
said her father [255 Cal.Rptr.3d 280] didn’t like Martell,
didn’t want her spending time with him, and didn’t
Page 230
like that she was letting him borrow the car. Eventually, her
father became so upset by the situation he told her to move
out by October 1.
B.
The Couple Begins Moving to Las Vegas, but Martell Takes
the Car, Returns to Los Angeles, and Jasmine Reports the Car
Stolen
Martell and Jasmine had been discussing a move to Las Vegas
because it was more affordable. When her father asked her to
leave, they turned to that idea, and secured an apartment
starting October 6. Martell helped her with the deposit. In
the meanwhile, they removed Jasmine’s things from her
father’s house and drove to her mother’s house in
Victorville, where Jasmine’s mother helped them rent a moving
truck. Martell said he stayed with Jasmine at her mother’s
house for a night or two, but wasn’t comfortable there, and
started staying elsewhere. He continued driving Jasmine’s car
those first days of October. Martell said she knew he had the
car and didn’t ask him to return it.
According to Jasmine, the two were supposed to move to Las
Vegas on October 6 and planned for Martell to drive her car.
That morning, Martell said he needed to go get money. The
testimony on this point is unclear. Martell said he took the
car to get money in Los Angeles, but Jasmine said she thought
he was just going to get money out of the car. In any event,
Martell left in Jasmine’s car and didn’t return. Instead, he
drove back to Los Angeles. Jasmine said she waited for
Martell, then "called him when he took so long, and he
told me he was going to L.A. and not bringing my car
back." She said he told her it would "be in my best
interest not to call" the police. The two fought about
the car, broke up, and then Jasmine drove the moving truck to
Las Vegas without him. Jasmine said at that point Martell did
not have permission to drive her car, except to Las Vegas.
On
October 10, Jasmine reported to the police that her car had
been stolen. Both Jasmine and Martell said she never told him
she made the report. Jasmine also said she never ...