People v. Martell

          Opinion after vacating opinion filed on 10/31/19

          APPEAL from the Superior Court of San Bernardino County No. 16CR064675. John M. Tomberlin, Judge. Reversed with directions.

          Nancy Susan Brandt, 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.

         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 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 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.) 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.)

         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 didn't like Martell, didn't want her spending time with him, and didn't 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 spoke to the police again after the initial report.

         C The Couple Begin to Resume Their Relationship, Martell is Arrested Driving the Car in Los Angeles, and They Return in the Car to Las Vegas

         Despite these problems, Jasmine worked to keep their relationship going. They stayed in contact using text messages and Facebook and she sent him photographs of the two of them together. Martell was responsive. According to Jasmine, he sent her his EBT card information to help her buy food and get started in Las Vegas. On November 1, he sent her his debit card information so she could set up a direct deposit payment to the electric company in Las Vegas. And in late October and early November, he visited Jasmine in Las Vegas. Jasmine said this happened once or twice. Martell said he visited multiple times and started helping her ...