Filed 3/21/13 P. v. Cervantes CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.111.5.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,
Plaintiff and Respondent,

v.
RICARDO CERVANTES,
Defendant and Appellant. 2d Crim. No. B242685 (Super. Ct. No. VA124262) (Los Angeles County)

Ricardo Cervantes appeals his convicti on by jury for unlawfully taking or driving a vehicle (Veh. Code, § 10851, subd. (a)). Appellant admitted two prior prison term enhancements (§ 667.5, subd. (b)) and was sentenced to three years county jail. (Pen. Code, § 1170, subd. (h).) We affirm.
Facts On March 28, 2012 at about 1:00 a. m., Joana Chihuahua reported that her
Honda Civic was stolen. It was last seen in Chihuahua's driv eway sometime between 9:00 p.m. and 12:30 a.m. Los Angeles County Sheriff De puties Mariano Pacheco and Scott Rodriguez saw the Honda stop at 1:37 a.m. in front of a driveway with the engine running. Ricardo Espinoza jumped out of th e driver's side and walked away from the Honda. Appellant exited the passenger doo r and walked away from Espinoza in the opposite direction. Appellant was holding th e car stereo and put it on the sidewalk.2 Deputy Pacheco detain ed Espinoza and appellant and saw a screwdriver jammed in the car ignition. Cables were ha nging out the dashboard where the car stereo
was removed.
Substantial Evidence Appellant asserts that the evidence is insufficient to suppo rt the finding that
he aided and abetted the vehicle theft. Ve hicle Code section 1 0851, subdivision (a) applies to the driver of the stolen vehicle as well as " '. . . an accessory to or an accomplice in the driving or unau thorized taking . . . .' " ( People v. Garza (2005) 35 Cal.4th 866, 875.) Appellant argues that he was an innocent passenger and that "[k]nowledge of the unlawful taking, acquired after the ride started . . . is not enough." ( People v. Clark (1967) 251 Cal.App.2d 868, 874.) Although there is no direct evidence th at appellant knew the car was stolen, intent was established by circumstantial evid ence. "Once the unlawful taking of the vehicle has been established, possession of the recently taken vehi cle by the defendant with slight corroboration throu gh statements or cond uct tending to show guilt is sufficient
to sustain a conviction of Vehicle Code sec tion 1081. [Citation.'] [Citations.] " ( People v. Clifton (1985) 171 Cal.App. 3d 195, 199-200; People v. Green (1995) 34 Cal.App.4th 165, 181.) A tampered ignition, coupled w ith other evidence ma y support a finding of intent to deprive the owner of possession. ( Ibid .; see e.g., People v. Windham (1987) 194 Cal.App.3d 1580, 1590-1591.) It is undisputed that Espinoza and appellant abandoned the Honda with the engine running. Espinoza and appellant exited the vehicle at the same time and walked in opposite directions to distance themselves from the car. The most damning evidence was the car stereo. Appellant held it in his righ t hand and put in down 30 feet away from the
Honda. Appellant claims that he was an innocent passenger but the screwdriver jammed in the ignition was visi ble to anyone sitting in the passe nger seat. It took no leap in logic for the jury to find that appellant and Espinoza were on a mission to take the Honda and strip it of its parts, all with the intent to deprive the owner of possession. (See3 e.g., People v. Neal (1940) 40 Cal.App.2d 115, 118.) In the words of the prosecutor, appellant and Espinoza "were caught red handed." We agree.

CALJIC 2.15 The jury was instructed that possession of recently stolen property is insufficient, without corro boration, to sustain a conviction. (CALJIC 2.15.) 1 Appellant argues that it was error to give CALJIC 2. 15 because he waived the benefit of the
instruction.
In People v. Yeoman (2003) 31 Cal.4th 93, 130-131, our Supreme Court held that it was proper to give CALJIC 2. 15 over defense objection. The court rejected the argument that CALJIC 2.15 violates due process or shifts the People's burden of proof. ( Id. , at p. 131.) CALJIC 2.15 is properly given where the defendant's intent to steal is contested. ( People v. Parson (2008) 44 Cal.4th 332, 355.) "[T]here is nothing in the instruction that directly or indirectly addresses the bur den of proof, and nothing in it relieves the prosecution of its burden to establish guilt beyond a reasonable doubt. [Citation.]" ( Id. , at pp. 355-356.) Appellant complains that CALJIC 2.15 is ambiguous because it fails to state whether "possession of recently stolen pr operty" refers to the car stereo or the Honda. Appellant did not request amplifying or clarifying language, thereby waiving the error. ( People v. Dennis (1998) 17 Cal.4th 468, 514.) The alleged error in giving the
instruction was harmless when considered in the context of the other instructions and

1 The CALJIC 2.15 instruction stated: "If you find that a defendant was in conscious possession of recently stolen prop erty, the fact of that possessi on is not by itself sufficient to permit an inference that th e defendant is guilty of the crime. Before guilt may be inferred, there must be corro borating evidence tending to prove defendant's guilt. However, this corroborating evidence need on ly be slight, and ne ed not by itself be sufficient to warrant an infere nce of guilt. [¶] As corrobor ation, you may consider the attributes of possession -- time, place and ma nner, that the defendant had an opportunity to commit the crime charged, the defendant's conduct, or any other evidence which tends to connect the defendant w ith the crime charged."4 overwhelming evidence that appellant aided and abetted the car theft. 2 ( People v

. Parson,

supra, 44 Cal.4th at p. 357.) But for the instru ctional error, it is not reasonably probable that appellant would have received a more favorable outcome. ( Ibid .) The judgment is affirmed.
NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P.J.

PERREN, J.

2 The jury was instructed that appellant was presumed inno cent (CALJIC 2.90) and that the prosecution had to prove guilt beyond a reasonable doubt. The jury was twice instructed that "[m]ere presen ce at the scene of the crime" and mere knowledge that a crime is being committed do es not amount to aiding and abetting (CALJIC 3.01).5 Raul Sahagun, Judge
Superior Court County of Los Angeles

________________ ______________

Jennifer Hansen, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney Genera l, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, Brenda n Sullivan, Deputy Attorney General, for Plain tiff and Respondent.