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Filed 9/18/20 P. v. Connell CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(San Joaquin)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

JEFFREY ORION CONNELL,

Defendant and Appellant.

C090612

(Super. Ct. No. STK-CR-FER2019-0006531)

Defendant Jeffrey Orion Connell was convicted of unlawfully driving or taking a 

vehicle and receiving a stolen vehicle. The trial court imposed a prior prison term 

enhancement. On appeal defendant contends (1) he received ineffective assistance of 

counsel because his counsel failed to request a pinpoint instruction on a “claim-of-right”

defense; (2) his felony conviction for receiving a stolen vehicle must be reduced to a 

misdemeanor because the jury found him guilty without the additional finding that the 

value of the vehicle was more than $950; and (3) his prior prison term enhancement must 
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be stricken based on the retroactive application of Senate Bill No. 136 (2019-2020 Reg. 

Sess.) (Senate Bill 136). We will modify the judgment to strike the enhancement for 

defendant’s prior prison term. We otherwise affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant made a claim with his automobile insurance company, Progressive, 

after he was involved in a traffic collision. On April 15 or 16, 2019, K.N. went with 

defendant to Enterprise Rent-A-Car (Enterprise) to rent a vehicle. After Enterprise 

refused to rent to defendant, he added K.N. to his insurance policy so she could rent a car 

for him. On April 17, 2019, defendant and K.N. returned to Enterprise and K.N. rented a 

2017 Hyundai Accent under defendant’s insurance claim. That day, K.N. overheard 

defendant talking on the phone with someone from Progressive who told him that the 

rental car had to be returned to Enterprise two days later, on April 19. K.N. provided the 

deposit for the rental car, and she was the only person authorized to drive the car under 

the rental agreement. The value of the car was about $15,000. K.N. did not want to take 

the financial risk of defendant driving the rental car, so she told him that he could drive 

her truck and she would drive the rental car. She did not give defendant permission to 

drive the rental car. 

R.T., the Enterprise branch manager, testified that the reservation for the rental car 

from Progressive had been made under K.N.’s name. K.N. signed the contract, and the 

vehicle was released to her. Progressive authorized the rental for up to 30 days, or for a 

reasonable time for repair. The rental contract listed the day after it was rented as a 

“placeholder” return date, but R.T. explained an insurance company will often extend the 

date depending on whether the damaged vehicle is being repaired or is determined to be 

totaled. In R.T.’s experience, people who are not authorized to drive rental cars still 

drive them “from time to time.” 

After K.N. rented the car, she was sick for a little over a week and stayed with her 

neighbor, K.P. K.N. testified that either Enterprise or Progressive called her on April 18 
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and told her that the rental car had to be returned the next day. On April 19, defendant 

came to K.P.’s house, and K.N. asked him to call Enterprise and arrange to have the car 

picked up from K.P.’s house. She did not tell defendant what day the car had to be 

returned but he was aware it was due back to Enterprise. Defendant told K.N. he would 

take care of it. The keys to the rental car had been hanging inside K.P.’s house near the 

front door. 

K.P. testified that while K.N. was staying with her, she saw defendant sitting in 

the rental car parked outside of her house and saw him drive away. Three or four days 

later, K.P. told K.N. that she had seen defendant drive away in the rental car. K.N. went 

through her text and phone messages and discovered a call from Enterprise and learned 

that the car had not been returned to Enterprise; she called the sheriff’s department and 

reported the car stolen. K.N. called Progressive that same day. She also attempted to 

contact the person she believed had taken the car by calling his phone and leaving 

voicemail messages. 

On May 9, 2019, Stockton Police Officer Derek Braga conducted a traffic stop on 

a 2017 Hyundai Accent driven by defendant. The vehicle had a paper license plate from 

a dealership, which was a violation of the Vehicle Code. Defendant gave Officer Braga 

his driver’s license, but he did not have registration or proof of insurance. Defendant told 

Officer Braga that he had purchased the car that day from a “Mexican guy” in Tracy. 

Officer Braga asked him what year the car was and defendant replied, “2016, I believe. It 

was a rental.” Officer Braga checked the car’s VIN and learned that the car had been 

reported stolen, and later determined the registered owner was the rental car company. 

Defendant then told Officer Braga that his friend, K.N., had rented the car for him on 

April 19 on his “insurance claim.” He told Officer Braga that he had been notified by 

Progressive three or four days earlier that the car had been reported stolen. Defendant 

stated he had K.N. taken “off of the claim,” and he did not know the car was “still 

stolen.” Defendant claimed he was planning to return it and he claimed to have 
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“paperwork” from Progressive assuring him that the car was no longer considered stolen 

and acknowledging he planned to return it. 

Following a trial, a jury found defendant guilty of one count of unlawfully driving 

or taking a vehicle (Veh. Code, § 10851, subd. (a); count 1), and one count of receiving a 

stolen vehicle (Pen. Code, § 496d, subd. (a); count 2).1 As to count 2, the jury found that 

the value of the vehicle was more than $950. In a bifurcated proceeding, the trial court 

found defendant had a prior Vehicle Code section 10851, subdivision (a) conviction 

(§ 666.5, subd. (a)) and had served a prior prison term (§ 667.5, subd. (b)). The trial 

court sentenced defendant to a split sentence pursuant to section 1170, subdivision 

(h)(5)(b). 

On count 1, the court sentenced defendant to the middle term of three years, plus 

one year for the prior prison term enhancement, for an aggregate term of four years. The 

court then ordered that defendant serve three years in county jail and the remaining one 

year under mandatory supervision, stayed defendant’s three-year sentence on count 2 

pursuant to section 654, and ordered that the prior prison term enhancement attached to 

count 2 be stricken as a matter of law. 

DISCUSSION

I

Ineffective Assistance of Counsel

Defendant contends his counsel was ineffective in failing to request a pinpoint 

instruction on a claim-of-right defense or argue this theory in his closing argument. We 

disagree.

A. Additional background

Defense counsel proposed at trial that the court include CALCRIM No. 1751,

innocent intent as a defense to receiving stolen property, in its instructions to the jury. 

1 Undesignated statutory references are to the Penal Code.
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Defense counsel subsequently withdrew the request because he did not “think it actually 

fits our theory of the defense” because “[h]e never received stolen property in the first 

place.” The trial court believed, however, that it had a sua sponte duty to give the 

instruction because the defense was supported by substantial evidence. Defense counsel 

told the court to “just leave it in.” Accordingly, the court instructed the jury with

CALCRIM No. 1751 on innocent intent as a defense to the charge of receiving stolen 

property as follows: “The defendant is not guilty of receiving stolen property if he 

intended to return the property to its owner when he withheld the property. [¶] If you 

have a reasonable doubt about whether the defendant intended to return the property to its 

owner when he withheld the property, you must find him not guilty of receiving stolen 

property. [¶] This defense does not apply if the defendant decided to return the property 

to its owner only after he wrongfully withheld the property. The defense also does not 

apply if the defendant intended to return the property to its owner when he withheld it, 

but later decided to withhold the property.” 

B. Analysis

To establish ineffective assistance, a defendant must show (1) counsel’s 

performance fell below an objective standard of reasonableness under prevailing 

professional norms, and (2) the deficient performance prejudiced the defendant. 

(Strickland v. Washington (1984) 466 U.S. 668, 687-688, 693-694 [80 L.Ed.2d 674, 693-

694, 697-698] (Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 216-218.)

In measuring counsel’s performance, judicial review is highly deferential. 

(Strickland, supra, 466 U.S. at p. 689; In re Andrews (2002) 28 Cal.4th 1234, 1253.) 

There is a presumption that counsel acted within the wide range of reasonable 

professional assistance. (People v. Mai (2013) 57 Cal.4th 986, 1009.) When, as here, the 

strategic reasons for challenged decisions are not apparent from the record, we will not 

find ineffective assistance of counsel unless there could have been “ ‘ “no conceivable 
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tactical purpose” ’ ” for counsel’s acts or omissions. (People v. Earp (1999) 20 Cal.4th 

826, 896; see People v. Arce (2014) 226 Cal.App.4th 924, 930.)

“The claim-of-right defense provides that a defendant’s good faith belief, even if 

mistakenly held, that he has a right or claim to property he takes from another negates the 

felonious intent necessary for conviction of theft or robbery.” (People v. Tufunga (1999) 

21 Cal.4th 935, 938.) CALCRIM No. 1863 provides a pinpoint instruction on the claimof-right defense. It states:

“If the defendant obtained property under a claim of right, (he/she) did not have 

the intent required for the crime of (theft/[or] robbery).

“The defendant obtained property under a claim of right if (he/she) believed in 

good faith that (he/she) had a right to the specific property or a specific amount of 

money, and (he/she) openly took it.

“In deciding whether the defendant believed that (he/she) had a right to the 

property and whether (he/she) held that belief in good faith, consider all the facts known 

to (him/her) at the time (he/she) obtained the property, along with all the other evidence 

in the case. The defendant may hold a belief in good faith even if the belief is mistaken 

or unreasonable. But if the defendant was aware of facts that made that belief completely 

unreasonable, you may conclude that the belief was not held in good faith.

“[The claim-of-right defense does not apply if the defendant attempted to conceal 

the taking at the time it occurred or after the taking was discovered.] [¶] . . . [¶]

“If you have a reasonable doubt about whether the defendant had the intent 

required for (theft/[or] robbery), you must find (him/her) not guilty of ____ <insert 

specific theft crime>.” (CALCRIM No. 1863.) 

The claim-of-right defense is generally limited “to the perpetrator who merely 

seeks to effect what he believes in good faith to be the recovery of specific items of his 

own personal property.” (People v. Waidla (2000) 22 Cal.4th 690, 734, fn. 12, italics 

added.) Moreover, the defense “does not apply where, ‘although defendant may have 
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“believed” he acted lawfully, he was aware of contrary facts which rendered such a belief 

wholly unreasonable, and hence in bad faith.’ ” (People v. Wooten (1996) 44

Cal.App.4th 1834, 1849.) Whether the defendant concealed his activities or did not 

conceal them is relevant to whether he had a good faith belief. (People v. Fenderson

(2010) 188 Cal.App.4th 625, 644.)

Counsel in this case was not asked for an explanation for failing to request a jury 

instruction on claim of right or arguing this defense in closing, and there is a satisfactory 

explanation for not requesting or focusing on it. Defendant did not qualify for it. A 

claim-of-right instruction requires good faith belief that the defendant is taking property

that he has a claim in or right to possess. (See People v. Waidla, supra, 22 Cal.4th at 

p. 734, fn. 12; see also People v. Tufunga, supra, 21 Cal.4th at pp. 938-939.) The rental 

car owned by Enterprise was not defendant’s personal property. Defendant knew that 

Enterprise would not rent him a car. And the evidence shows that he was not authorized 

to drive the rental car under K.N.’s rental agreement with Enterprise. He therefore had 

no right or claim to the rental car at any point in time. Further, there is no substantial 

evidence that defendant possessed the car in good faith. He falsely told Officer Braga 

that he had bought the car from a “Mexican guy” just that day, which demonstrates a 

consciousness of guilt that is at odds with a good-faith belief that he had a claim or right 

to possess the rental car. He also admitted to Officer Braga that he knew the car had been 

reported stolen. Such evidence also belies his claim that his belief in his right to the 

property was held in good faith. (See People v. Fenderson, supra, 188 Cal.App.4th at 

p. 644 [“A lack of concealment is evidence that a defendant has a good faith belief in his 

or her right to the property at issue”].)

Further, a claim of ineffective assistance of counsel can be disposed of without 

inquiry into counsel’s possible tactical reasons for his or her actions if the reviewing 

court can determine that even if there was attorney error, it was not prejudicial. (People 

v. Kipp (1998) 18 Cal.4th 349, 366-367; Strickland, supra, 466 U.S. at p. 697.) Even if 
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we were to assume, without deciding, that a claim-of-right defense was supported by the 

evidence and defense counsel was deficient in failing to request such a pinpoint 

instruction and focusing on the defense in closing argument, we cannot conclude 

defendant has established a reasonable probability such an instruction and a related 

discussion in closing argument would have affected the verdict.

The evidence against defendant was very strong. He admitted taking the car, that 

he did not have the right to use the car, that he was aware the car was reported as stolen, 

and the car was found in his possession after the fact. Further, the jury was instructed 

with CALCRIM No. 1800 that defendant had to have the requisite intent to be convicted. 

By finding defendant guilty of receiving a stolen vehicle, the jury necessarily found that 

he committed theft, i.e., took possession of property owned by someone else without the 

owner’s consent, and when he took the property he intended to deprive the owner of it 

permanently or for an extended period of time. Additionally, the jury was instructed with

CALCRIM No. 1820 that to find defendant guilty of unlawfully driving a vehicle, the 

jury had to find that he drove a vehicle belonging to another person without the owner’s 

consent, and that he had the specific intent to deprive the owner of possession of the 

vehicle for any period of time. In convicting defendant of the charges, the jury 

necessarily concluded he had the intent to deprive the owner, Enterprise, of the property 

and rejected the theory that he believed the property belonged to him. Accordingly, we 

cannot conclude it was reasonably probable counsel’s alleged deficient performance—his

failure to request a claim-of-right instruction or argue this defense in closing—affected 

the verdict.

Because defendant has shown neither deficient performance, nor prejudice, we 

reject his claim of ineffective assistance.
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II

Conviction Under Section 496d

Defendant argues that his felony conviction for a violation of section 496d, 

subdivision (a), receiving a stolen vehicle, must be reduced to a misdemeanor because the 

jury verdict form erroneously designated the offense, a “wobbler,” as a misdemeanor. 

We disagree.

“ ‘Under California law, certain offenses may be classified as either felonies or 

misdemeanors. These crimes are known as “wobblers.” ’ ” (Robert L. v. Superior Court

(2003) 30 Cal.4th 894, 902-903, fn. 9.) Receiving a stolen vehicle in violation of section 

496d, subdivision (a), is a wobbler offense. (People v. Lara (2019) 6 Cal.5th 1128, 

1131.) “Proposition 47 amended section 496, the general statute that criminalizes receipt 

of stolen property, by making the offense a misdemeanor whenever the value of the 

property does not exceed $950. (§ 496, subd. (a) . . . .)” (People v. Orozco (2020)

9 Cal.5th 111, 115 (Orozco).) Recently, our Supreme Court held that the “revision to 

section 496, making the offense of receiving stolen property a misdemeanor when the 

value of the property is $950 or less, does not extend to convictions for receiving a stolen 

vehicle under section 496d.” (Ibid.)

In this case, because the trial court did not have the benefit of our high court’s 

decision in Orozco, the court stated during the discussion on jury instructions that for the 

crime of receiving a stolen vehicle to be a felony, the value of the vehicle had to be more 

than $950 or it was a misdemeanor offense. The trial court then proposed that the verdict 

forms include “a guilty and a not guilty of receiving stolen property, a misdemeanor. 

And then there’s a special finding [that the value is more than $950]. And then that 

allegation in itself would say the word ‘felony.’ ” The court acknowledged that it was “a 

little different than we’re used to doing—well, it’s fairly new, couple years old, but, you 

know, that’s new in the law world.” 
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While it was erroneous to include a misdemeanor designation on the jury form and 

allow the jury to make a separate finding on whether the value of the car was over $950

in order to make the offense a felony, the error was harmless. As defendant

acknowledges, “[t]he jury’s verdict was essentially a finding on the degree of 

[defendant’s] violation of section 496d; a finding which, strictly speaking, it had no 

authority to make.” He contends that “[t]he error was that the trial court assumed without 

any authority that section 496d, subdivision (a), was a felony only with an additional 

finding that the value of the stolen property was over $950.” As our high court 

subsequently clarified, such a finding is unnecessary and the offense of receiving a stolen 

vehicle remains a wobbler regardless of the value of the stolen car. (Orozco, supra,

9 Cal.5th at p. 115.)

“A wobbler is deemed a felony unless charged as a misdemeanor by the People or 

reduced to a misdemeanor by the sentencing court under section 17, subdivision (b). 

[Citation.]” (Robert L. v. Superior Court, supra, 30 Cal.4th at pp. 901-902, fn. 7.) “The 

five specified circumstances in which a wobbler will be treated like a misdemeanor are: 

(1) when the court imposes a judgment of punishment other than imprisonment in the 

state prison (§ 17, subd. (b)(1)); (2) when the court, upon committing the defendant to 

the Youth Authority, designates the offense to be a misdemeanor (§ 17, subd. (b)(2)); 

(3) when at the time the court grants probation, it does not impose a sentence, or, upon 

application of the defendant, the court declares the offense a misdemeanor (§ 17, subd. 

(b)(3)); (4) when the prosecutor designates the offense a misdemeanor (§ 17, subd. 

(b)(4)); and (5) when the court, at or before the preliminary hearing, determines that the 

offense is a misdemeanor (§ 17, subd. (b)(5)).” (Ibid.) Here, the People charged the 

crime as a felony. The jury found defendant guilty of a violation of section 496d, 

subdivision (a). Before sentencing, the trial court denied defendant’s motion to reduce 

his felony conviction to a misdemeanor and listed the reasons for its decision. The court 

then imposed and stayed felony sentence. Accordingly, the trial court understood its 
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authority to determine whether defendant’s offense was a felony or a misdemeanor, 

despite the error in designating the wobbler offense a misdemeanor on the jury form, and 

the court declined to reduce it to a misdemeanor. Defendant’s argument that the jury 

effectively acquitted him of a felony based on the verdict form designating the offense a 

misdemeanor is unavailing. We reject his claim.

III

Senate Bill 136 (2019-2020 Reg. Sess.)

In his supplemental brief, defendant claims his prior prison term enhancement 

must be vacated based on the retroactive application of Senate Bill 136 (2019-2020 Reg. 

Sess.). The People agree. 

On October 8, 2019, the Governor signed Senate Bill 136 (2019-2020 Reg. Sess.), 

which amended section 667.5, effective January 1, 2020 (Stats. 2019, ch. 590, § 1). 

Senate Bill 136 narrowed eligibility for the one-year prior prison term enhancement to 

those who have served a prior prison sentence for a sexually violent offense, as defined in 

section 667.5, subdivision (b).

In this case, defendant’s prior prison term was for the unauthorized use of another 

person’s identifying information (§ 530.5, subd. (a)), which is not a sexually violent 

offense under Welfare and Institutions Code section 6600, subdivision (b). Defendant is 

therefore entitled to the ameliorative benefit of the statute if Senate Bill 136 (2019-2020 

Reg. Sess.) is applied retroactively. We agree with the parties that the amendment to 

Senate Bill 136 should be applied retroactively in this case. Whether a particular statute 

is intended to apply retroactively is a matter of statutory interpretation. (See People v. 

Superior Court (Lara) (2018) 4 Cal.5th 299, 307 [noting “ ‘the role of a court is to 

determine the intent of the Legislature’ ”].) Generally speaking, new criminal legislation 

is presumed to apply prospectively unless the statute expressly declares a contrary intent. 

(§ 3.) However, where the Legislature has reduced punishment for criminal conduct, an 

inference arises under In re Estrada (1965) 63 Cal.2d 740 that, “ ‘in the absence of 
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contrary indications, a legislative body ordinarily intends for ameliorative changes to the 

criminal law to extend as broadly as possible, distinguishing only as necessary between 

sentences that are final and sentences that are not.’ ” (Lara, at p. 308.) “A new law 

mitigates or lessens punishment when it either mandates reduction of a sentence or grants 

a trial court the discretion to do so. [Citation.]” (People v. Hurlic (2018) 25 Cal.App.5th 

50, 56.)

There is nothing in Senate Bill 136 or its associated legislative history that 

indicates an intent that the court not apply this amendment to all individuals in 

defendant’s position whose sentences are not yet final. Under these circumstances, we 

conclude Estrada’s inference of retroactive application applies. (See, e.g., People v. 

Nasalga (1996) 12 Cal.4th 784, 797-798 [applying Estrada inference of retroactivity to 

legislative changes to § 12022.6, subds. (a) & (b) enhancements].) Accordingly, we will 

direct the trial court to strike defendant’s prior prison term enhancement and “remand the 

matter for resentencing to allow the court to exercise its sentencing discretion in light of 

the changed circumstances.” (People v. Jennings (2019) 42 Cal.App.5th 664, 682.)

DISPOSITION

The trial court is directed to strike defendant’s section 667.5, subdivision (b) prior 

prison term enhancement. In all other respects, the judgment is affirmed. The matter is 

remanded for resentencing not inconsistent with this opinion.

 KRAUSE , J.

We concur:

 HOCH , Acting P. J.

 RENNER , J.