People v. Fogleman

1

THE PEOPLE, Plaintiff and Respondent, v. ALVIN JAMES FOGLEMAN, Defendant and Appellant.

A164357

California Court of Appeals, First District, Third Division

June 23, 2023

NOT TO BE PUBLISHED

(Humboldt County Super. Ct. No. CR1903262)

Rodriguez, J.

In 2021, a jury convicted Alvin James Fogleman of several criminal offenses, including felony vehicle theft. (Veh Code, § 10851, subd. (a).) The trial court sentenced him to the upper term of three years for that offense after finding aggravating factors, including numerous prior convictions and a prior prison term. (Cal. Rules of Court rule 4.421(b)(2)-(3).)

On appeal, Fogleman challenges his vehicle theft conviction arguing the trial court failed to instruct the jury on the lesser included offense of misdemeanor vehicle theft even though the theory was supported by substantial evidence. He further contends the court erred by permitting an officer to provide expert testimony on the value of the stolen car. Finally, relying on Senate Bill No. 567 (2021-2022 Reg. Sess.), which limits a court's authority to impose an aggravated sentence, Fogleman argues he must be resentenced for his vehicle theft conviction. None of these arguments warrant reversal, and we affirm.

BACKGROUND

In June 2019, a police officer attempted to pull over Fogleman, who was driving a motorcycle across cones in a construction zone and, at one point, traveling over 100 miles per hour on the highway. Instead of stopping, Fogleman drove through a stop sign. Eventually, Fogleman's motorcycle slid to a stop and crashed; he attempted to flee on foot, but ultimately complied with the officer's order to stop. A search of Fogleman revealed a bag containing just under .5 grams of heroin and approximately 17 grams of methamphetamine.

The same month, Fogleman took his ex-girlfriend's 2018 Nissan Altima - a car that at the time had visible damage, including a dent on the driverside door and damage sustained from the victim backing into a backhoe and another driver hitting her car. The victim tried to persuade Fogleman to return the car. She failed and reported the car stolen. Officer Lindsay Frank ultimately located the car, which she valued at over $2000 based on its year and condition. Despite being damaged, the car had no mechanical issues and drove fine. The victim, however, valued the car at $800 since she purchased it for $1000, it was damaged after purchase, and it had approximately 200,000 miles.

In September 2019, Fogleman attempted to take a trailer containing approximately $13,000 worth of construction equipment.

The Humboldt County District Attorney charged Fogleman with evading an officer (Veh. Code, § 2800.2, subd. (a), count one), possession of a controlled substance, heroin (Health &Saf. Code, § 11350, subd. (a), count two), possession of a controlled substance, methamphetamine (id., § 11377, subd. (a), count three), felony grand theft auto - of the Altima - with a prior vehicle theft conviction (Pen. Code,^[1] § 666.5, subd. (a), count four), and felony vehicle theft - of the trailer (Veh. Code, § 10851, subd. (a), count five). The complaint further alleged Fogleman had a prior strike for criminal threats (§ 422, subd. (a)) within the meaning of the "Three Strikes" law (§ 667, subds. (b)-(i)), and a prior conviction for felony vehicle theft (Veh. Code, § 10851, subd. (a)).

During an instruction conference in the midst of trial, the trial court stated its intent to instruct the jury with CALCRIM No. 1820, unlawful taking or driving of a vehicle. Fogleman's counsel requested a standalone instruction for misdemeanor vehicle theft as a lesser included offense for felony vehicle theft of the Altima. Specifically, he requested an instruction mirroring the felony instruction but with a valuation of under $950. But counsel noted "there didn't seem to be an instruction for the misdemeanor version" of Vehicle Code section 10851. On that basis, the court stated it was unnecessary to modify any of the instructions. The court suggested counsel could argue Fogleman was only guilty of a misdemeanor for taking the car. Fogleman's counsel responded, "I agree."

The jury was instructed with CALCRIM No. 1820, which reads in part: "The defendant is charged in Counts Four and Five with unlawfully taking or driving of a vehicle. To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant took someone else's vehicle without the owner's consent; [¶] 2. When the defendant took the vehicle, he intended to permanently deprive the owner of possession or ownership of the vehicle," and "3. The vehicle was worth more than $950."

In addition, the trial court instructed the jury with a modified version of CALCRIM No. 3517, which addresses the procedure for filling out verdict forms when a lesser included offense and greater crimes are not separately charged. It states, in relevant part: "[i]f all of you find that the defendant is not guilty of a greater crime, you may find him guilty of a lesser crime." The instruction continues, with the following modification: "Misdemeanor vehicle theft is a lesser crime of felony vehicle theft charged in Count 4." A verdict form provided to the jury for a lesser included offense for count four noted the option to find Fogleman not guilty of felony driving or taking a vehicle without consent, and instead find he was guilty of misdemeanor vehicle theft.

The jury found Fogleman guilty on all counts. He waived a jury trial to establish his prior offenses and admitted he had two prior felony convictions. At a December 2021 sentencing hearing, the trial court sentenced Fogleman to an aggregate term of four years, four months in prison - the upper term of three years for count four, vehicle theft; one-third the middle term, or eight months for count one, evading arrest; and one-third the middle term, or eight months for count five, vehicle theft, all running consecutively.

DISCUSSION

Fogleman challenges his felony vehicle theft conviction and resulting sentence. We address each of his arguments in turn.

I.

Fogleman contends we must reverse his conviction because the trial court failed to instruct the jury on the lesser included offense of misdemeanor vehicle theft. Even if there was error, it was harmless.

We review de novo a trial court's failure to instruct on a lesser included offense and view the evidence in the light most favorable to the defendant. (People v. Brothers (2015) 236 Cal.App.4th 24, 30.) A court has a sua sponte duty to instruct on lesser included offenses of greater charged offenses if there is substantial evidence supporting a determination the defendant is guilty of only the lesser offense. (People v. Breverman (1998) 19 Cal.4th 142, 148-149.)

We assume without deciding that petty theft - theft of property valued at $950 or less, punishable as a misdemeanor - is a lesser included offense of felony vehicle theft. (§ 490.2; People v. Page (2017) 3 Cal.5th 1175, 1187 ["obtaining an automobile worth $950 or less by theft constitutes petty theft under section 490.2 and is punishable only as a misdemeanor"].) Given the victim's testimony valuing the Altima at $800 - based on the amount she paid for it, the damage incurred after she purchased it, and the excessive mileage - the People concede the trial court could have amplified its instructions on misdemeanor vehicle theft by instructing the jury with CALCRIM No. 1801 - petty theft. That instruction states, in relevant part, "The defendant committed petty theft if (he/she) stole property [or services] worth $950 or less." (CALCRIM No. 1801.)

But even assuming the trial court erred by failing to give that instruction, it was harmless. On this record, it is not reasonably probable Fogleman would have achieved a more favorable result had that instruction been given. (People v. Breverman, supra, 19 Cal.4th at p. 149 [using harmless error standard in People v. Watson (1956) 46 Cal.2d 818]; People v. Gonzalez (2018) 5 Cal.5th 186, 198 [failure to comply with duty to instruct on lesser included offenses in noncapital cases is error of state law requires application of Watson harmless error analysis].)

Fogleman argues, in the absence of a misdemeanor vehicle theft instruction, the jury lacked the ability to distinguish misdemeanor vehicle theft from felony theft. The jury, his argument goes, "had no direction" regarding "the importance of, or how to consider, the Altima's value." But the record indicates both parties accurately described the distinction between misdemeanor and felony vehicle theft during their closing arguments. (People v. Merritt (2017) 2 Cal.5th 819, 831 [examining whether attorneys' comments accurately describe the offense's elements to determine whether instructions omitting elements of the offense was prejudicial].) Fogleman's counsel argued, "Mr. Fogleman may be guilty of misdemeanor vehicle theft, which contemplates a valuation of less than $950. That is the lesser-included offense of Count 4." Similarly, the prosecutor's closing argument emphasized, "if you believe the value of the vehicle is less than $950, then the defendant is only guilty of a misdemeanor." The jury was not ignorant of the distinction between felony and misdemeanor vehicle theft. (Id. at p. 831.) Even though the trial court instructed the jury to follow the law as explained by the court, that instruction does not diminish the significance of the attorneys' comments contrary to Fogleman's assertions. Because the court did not give a complete jury instruction on misdemeanor vehicle theft, "the attorneys' comments did not conflict with any instruction." (Ibid.) If anything, they complemented one another, thus "the jury might well have considered [counsels'] comments in its...