People v. Clayton CA4/1

Filed 1/14/21 P. v. Clayton CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D076177

Plaintiff and Respondent,

v. (Super. Ct. No. SCD280222)

RASSAN CLAYTON,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County,
Steven E. Stone, Judge. Affirmed as modified.
Matthew R. Garcia, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Eric A.
Swenson and Michael D. Butera, Deputy Attorneys General, for Plaintiff and
Respondent.
A jury convicted Rassan Clayton of one count of unlawfully taking and
driving a vehicle (Veh. Code, § 10851, subd. (a)). The trial court sentenced
him to a total prison term of four years, declined to impose a restitution fine
(Pen. Code, § 1202.4), and imposed but stayed a parole revocation restitution
fine of $300 (id., § 1202.45). On appeal, Clayton contends the trial court
erred when it excluded statements made against the penal interest of an
unavailable witness—his friend who told a defense investigator that he
borrowed the vehicle from a homeless man; he was worried he could be
blamed for taking the vehicle, but was nonetheless willing to tell the truth;
and he let Clayton borrow the vehicle. Clayton contends these statements
were admissible as statements against penal interest under Evidence Code

section 1230.1 We conclude the trial court properly found the statements
were inadmissible hearsay and did not qualify under section 1230, but even if
the statements should have been admitted, any error in excluding them was
harmless. Clayton further contends—and the Attorney General agrees—the
parole revocation restitution fine must be stricken because it was not
imposed in an amount equal to the restitution fine. We agree and thus
modify the judgment to reflect a $0 parole revocation restitution fine. As
modified, we affirm the judgment in full.
FACTS
An information charged Clayton with one count of unlawful taking and
driving a vehicle (Veh. Code, § 10851, subd. (a); count 1) and one count of
buying, receiving, concealing, selling, or withholding a stolen vehicle
(Pen. Code, § 496d; count 2). The information alleged Clayton had two felony
priors (Pen. Code, § 1203, subd. (e)(4)) and one strike prior (id., §§ 667,
subds. (b)-(i), 668, 1170.12).
At trial, Griffin L. testified that he parked his 2005 Nissan Frontier
truck near the La Jolla pier on November 26, 2018. He left his keys wrapped

1 Unless otherwise specified, statutory references are to the Evidence
Code.

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in a towel on the beach while he went surfing. When he returned to the
beach after surfing, he noticed his keys were gone, and then saw his truck
was gone. The truck was in good condition when he parked it; it was a white
truck with no broken windows. Griffin estimated it was worth approximately
$4,500 to $5,000. He reported the truck stolen. A few months later, the
truck was returned by law enforcement. The truck had been spray painted
black, the front bumper was falling off, the back window was broken, and the
inside had been “beaten up very badly.” He sold the truck for $1,700.
San Diego Police Department officer Garrett Trainor testified he was
patrolling just after midnight on January 18, 2019, when he noticed a Nissan
truck that appeared to be “in disarray”: it had a spray-painted paint job, the
back window was broken out and covered with a wood plank, and it had a
headlight out. He ran the license plate and learned the truck had been
reported stolen.
Officer Trainor and his partner moved behind the truck and activated
their lights for a traffic stop. The vehicle did not pull over immediately, but
instead drove for about a mile before finally stopping, even though there was
space on the shoulder where the vehicle could have pulled over sooner. The

officer identified Clayton as the driver of the vehicle.2 Clayton was
compliant during his interaction with the officers, exited the vehicle upon
request, and showed them his identification without issue.
A search of the vehicle revealed no title documentation, pink slips, or
paperwork with Clayton’s name on it. The key was in the ignition. Unlike
the exterior, which was spray painted black, the interior doors were painted
white, which indicated to Officer Trainor that the original paint color on the

2 Two female passengers were in the vehicle with Clayton, but they were
not arrested in relation to the stolen truck.

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car was white. Officers conducted a records check of the license plate and the
vehicle’s VIN number and confirmed that it belonged to Griffin.
Officer Trainor testified that stolen cars are frequently repainted or
their physical appearance is otherwise altered to make it more difficult to
match the description of a vehicle reported stolen.
A San Diego County Sheriff’s deputy testified that in 2017, he was
investigating the theft of a Ford F-350. When he located the truck, the
deputy noted the ignition appeared to have been “manipulated,” something
he commonly saw in stolen vehicles. The deputy found Clayton at the truck’s
location; Clayton told the deputy he was trying to help his friend by selling
the truck. The deputy informed Clayton the vehicle was stolen.
The parties stipulated that the F-350 had been reported stolen by its
owner, who did not know who had stolen the truck.
Defense witness Megan F., Clayton’s girlfriend and the mother of his
child, testified that she believed the Nissan Frontier belonged to their friend
Eric T., who had gotten it around Christmastime. Eric had picked her and
Clayton up at Clayton’s house and driven them to Eric’s house. They hung
out for a while at Eric’s, and then Eric gave Clayton the keys, and Megan and
Clayton took the truck. This occurred about two weeks after New Year’s Eve,
not long before Clayton was arrested. Megan was not with Clayton when he
was pulled over. Megan acknowledged that, prior to trial, she initially told
an investigator from the public defender’s office she had never driven in the
truck, but later she “cleared that up.”
Marivel Castellanos, an investigator for the public defender’s office,
testified that she interviewed both Megan and Eric prior to trial and
subpoenaed them both to testify at trial. When she spoke with Eric, he

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relayed information about how Clayton came into possession of the truck.
She saw Eric at the courthouse in relation to this case.
The jury was instructed that, to prove Clayton was guilty of unlawful
taking or driving a vehicle (Veh. Code, § 10851), the prosecution was required
to prove beyond a reasonable doubt that (1) Clayton took someone else’s
vehicle without the owner’s consent, (2) when he 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 $950.3
In closing arguments, the prosecutor argued the entire case boiled
down to the question of whether Clayton knew the truck was stolen. “Here is
how you know. [¶] Look at the condition of this car. You can see battered
paint chips. You can see that back window with a very thick board over it.
[¶] . . . [¶] But this is not a well-done paint job. This is spray painted. [¶]
This is not a well-repaired back window. That is a massive piece of wood. [¶]
The interior of the car is in fact still white. And you know that [Clayton]
knew, because that’s him getting out of one of those doors that has that white
trim around it. [¶] He knew he didn’t own it.” The prosecutor further
argued that Clayton had knowledge of stolen cars, as he was caught
attempting to resell a stolen vehicle in 2017. The prosecutor questioned the
jury, “Is it reasonable to borrow a truck with a busted back window, badly

3 The jury was further instructed that, with respect to evidence of
uncharged acts, if the jury decided by a preponderance of the evidence that
Clayton committed those acts, the jury could consider that evidence for the
limited purpose of deciding whether Clayton “knew that the motor vehicle
had been stolen when he allegedly acted in this case,” or “knew he did not
have the owner’s consent when he allegedly acted in this case,” or his actions
“were not the result of mistake or accident.”

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spray-painted, even after having all of this prior experience with a stolen car?
[¶] No.”
The jury found Clayton guilty of the crime of unlawful taking and
driving a vehicle (Veh. Code, § 10851, subd. (a)). The prosecutor dismissed
count 2. Clayton admitted the allegations regarding his prior convictions.
The trial court declined to strike the prior strike conviction and sentenced
Clayton to a total prison term of four years, comprised of the midterm of
two years, doubled for the strike.
DISCUSSION
I.
Excluded Hearsay Statements
Clayton contends the trial court improperly excluded the defense
investigator’s testimony regarding statements made by Eric T. during a
pretrial interview. Clayton contends the hearsay statements were admissible
as statements against Eric’s penal interest and were admissible under
section 1230.
A. Additional Factual and Procedural Background
Prior to trial, Marivel Castellanos, an investigator from the San Diego
County Office of the Public Defender, interviewed Eric T. at his home. Eric
told the investigator he and Clayton had been “partners for a while” and
described their relationship, saying “ ‘we are tight.’ ” Eric told the
investigator he would not elaborate but he wanted to help Clayton out and be
there for him. The investigator’s report stated:
“In regards to the incident, [Eric] was worried that he
would get blamed for the stolen truck but was willing to tell
the truth. He was on 52nd street and University on the
corner of the Buddhist Temple collecting bicycle parts.

“A homeless guy, he could not describe him, approached
him and offered to lend him his truck in order to transport
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 the bicycle parts. [Eric] saw the truck across the street and
agreed to borrow it.

“The homeless guy gave him the keys and told [Eric] he
could borrow it a few days. [Eric] took the truck, ‘the truck
was not mine. I borrowed it.’ [Eric] did not know the name
of the homeless guy and could not give locations of his
whereabouts.

“[Eric] allowed Clayton to borrow the truck but they
normally took turns driving the truck. [Eric] believes that
Clayton was driving the truck when he was arrested.

“[Eric] had nothing further to add so the interview was
concluded.”

At a pretrial hearing, defense counsel told the court she intended to call
Eric as a witness: “With respect to the witness [Eric], I don’t believe he
would incriminate himself, but we can submit that to the court and see if the
court feels that way and if he needs to be counseled. [¶] And just for an offer
of proof, what [Eric] relayed to my investigator, he received the truck from
another individual, and he let Mr. Clayton drive the truck. [¶] So that is
roughly what his testimony would be. I don’t know if that rises to the level of
him incriminating himself, but I will submit that to the court. [¶] . . . I don’t
think he is incriminating himself by what he told my investigator.”
The court reviewed the investigator’s statement and indicated it was
“inclined to have counsel appointed to counsel [Eric] on this. I do believe he
could incriminate himself, based on what has been provided. [¶] Among
other things, he says he has been partners for a while with the defendant.
I’m not sure what that means. [¶] He says, at one point during the
interview, he was worried he would get blamed for the stolen truck, and then,
of course, he is the one that provided the stolen truck. [¶] I think, based on
all of that, he should be counseled.”

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 Eric was appointed counsel and subsequently invoked his Fifth
Amendment privilege against self-incrimination. The parties and the trial
court agreed this rendered Eric unavailable as a witness under section 240,
subdivision (a)(1). (See People v. Rios (1985) 163 Cal.App.3d 852, 866 [“one
who refuses to testify based upon the privilege against self-incrimination
[citation], may be held to be ‘unavailable’ for purposes of . . . section 1230”].)
Based on Eric’s unavailability, defense counsel requested that Eric’s
prior unsworn statement be admitted as a statement against interest under
section 1230. Counsel argued Eric was a nonparty “who allegedly confessed
to a crime” and was unavailable due to the exercise of his privilege against
self-incrimination. The court pointed out that defense counsel initially
argued the statements were not incriminating. Defense counsel then argued
only a portion of the statement should be admitted, contending the part
against Eric’s penal interests “is when he says he was worried that he would
get blamed, but he was willing to tell the truth, and he let Mr. Clayton
borrow it.” Defense counsel argued the statement was inherently reliable
because Eric “in candor made a statement he was afraid he would get
blamed.” Further, Megan’s testimony corroborated some of Eric’s story
because she testified that Eric gave Clayton the truck.
The prosecutor argued the statements were not incriminating and
should be excluded as unreliable and untrustworthy.
The trial court declined to allow the investigator to testify regarding
Eric’s statement. The court found the statement was not one against interest
under section 1230 because it did not “so far subject[] a person to criminal
liability that a reasonable man in his position would not have made the
statement unless he believe[d] it to be true . . . .” The court further found the
statement was not trustworthy or reliable because Eric stated he and Clayton

8
had been “partners for a while,” and described their relationship as, “ ‘we are
tight,’ ” and then offered details that were helpful to Clayton but declined to
elaborate—when convenient to Eric—with sufficient information to enable
the story to be confirmed or dispelled. The court concluded that the totality
of the circumstances, including the statement itself, the relationship with the
defendant, and the vague and limited information Eric provided, made the
statement untrustworthy and unreliable. The court explained that “it easily
can be seen as somebody who wants to help a friend, at the same time
without putting himself at any risk.” Regarding Eric’s statement that he was
worried about being blamed for taking the vehicle, the court remarked “I
think it is only natural, when somebody is approached for a criminal case
that is going to trial, that they might be concerned about somehow getting
blamed or involved,” but that did not make the statement admissible under

section 1230 or reliable.4
B. Applicable Law
“ ‘Hearsay evidence’ is evidence of a statement that was made other
than by a witness while testifying at the hearing and that is offered to prove
the truth of the matter stated.” (§ 1200, subd. (a).) “Except as provided by
law, hearsay evidence is inadmissible.” (Id., subd. (b).) One exception is set
forth in section 1230, which provides, “Evidence of a statement by a declarant
having sufficient knowledge of the subject is not made inadmissible by the
hearsay rule if the declarant is unavailable as a witness and the statement,
when made, was so far contrary to the declarant’s pecuniary or proprietary
interest, or so far subjected him to the risk of civil or criminal liability, or so
far tended to render invalid a claim by him against another, or created such a

4 The prosecutor noted that Eric was interviewed several months into the
criminal case, after the preliminary hearing was held.

9
risk of making him an object of hatred, ridicule, or social disgrace in the
community, that a reasonable man in his position would not have made the
statement unless he believed it to be true.”
To qualify for admission under the declaration-against-penal-interest
exception to the hearsay rule, the proponent of the evidence must show that
“the declarant is unavailable, that the declaration was against the declarant’s
penal interest when made and that the declaration was sufficiently reliable to
warrant admission despite its hearsay character.” (People v. Duarte (2000)
24 Cal.4th 603, 610-611 (Duarte).) If the court is required to determine any
preliminary facts, such as whether a statement is one against penal interest,

that determination is made under section 405.5 (People v. Jackson (1991)
235 Cal.App.3d 1670, 1678.) “The test imposed is an objective one—would
the statement subject its declarant to criminal liability such that a
reasonable person would not have made the statement without believing it
true.” (Ibid.)
“ ‘In determining whether a statement is truly against interest within
the meaning of . . . section 1230, and hence is sufficiently trustworthy to be
admissible, the court may take into account not just the words but the
circumstances under which they were uttered, the possible motivation of the
declarant, and the declarant’s relationship to the defendant.’ ” (People v.
Grimes (2016) 1 Cal.5th 698, 711 (Grimes).) “Ultimately, courts must

5 “When the existence of a preliminary fact is disputed, the court shall
indicate which party has the burden of producing evidence and the burden of
proof on the issue as implied by the rule of law under which the question
arises. The court shall determine the existence or nonexistence of the
preliminary fact and shall admit or exclude the proffered evidence as
required by the rule of law under which the question arises.” (§ 405,
subd. (a).)

10
consider each statement in context in order to answer the ultimate question
under . . . section 1230: Whether the statement, even if not independently
inculpatory of the declarant, is nevertheless against the declarant’s interest,
such that ‘a reasonable man in [the declarant’s] position would not have
made the statement unless he believed it to be true.’ ” (Id. at p. 716; see
Kincaid v. Kincaid (2011) 197 Cal.App.4th 75, 89 [“In order for a statement to
qualify under the exception, both the content of the statement and the fact
that the statement was made must be against the declarant’s social
interest.”].)
“We . . . bar admission of those portions of a third party’s confession
that are self-serving or otherwise appear to shift responsibility to others.
[Citations.] But we have permitted the admission of those portions of a
confession that, though not independently disserving of the declarant’s penal
interests, also are not merely ‘self-serving,’ but ‘inextricably tied to and part
of a specific statement against penal interest.’ ” (Grimes, supra, 1 Cal.5th at
p. 715.)
“We review a trial court’s decision whether a statement is admissible
under . . . section 1230 for abuse of discretion. [Citations.] Whether a trial
court has correctly construed . . . section 1230 is, however, a question of law
that we review de novo.” (Grimes, supra, 1 Cal.5th at pp. 711-712.)
C. The Trial Court Properly Excluded the Statements
Clayton contends the trial court erred by precluding the investigator
from testifying as to the content of Eric’s statements made during the course
of her investigation. Eric’s statements, which were made at his home to the
investigator and offered to prove the truth of the matters Eric stated, are
undisputedly hearsay and are inadmissible unless they qualify under an
exception. (§ 1200, subds. (a), (b).) Clayton contends the statements qualify

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as admissible statements made against Eric’s penal interest. (Id., § 1230.)
We conclude the trial court properly found the statements do not qualify
under section 1230 because they were not statements against Eric’s penal

interest and were not sufficiently reliable to warrant admission.6 (Duarte,
supra, 24 Cal.4th at pp. 610-611.)
Eric told the investigator he was worried he could get blamed for the
stolen truck but was willing to tell the truth. He claimed “[a] homeless
guy”—whom Eric could not describe, identify, or locate again—lent him the
truck to transport bicycle parts. He claimed to have allowed Clayton to
borrow the truck and stated they took turns driving the truck. These
statements tend to exculpate Clayton and do not incriminate Eric. Rather,
Eric claimed to have borrowed the truck from an unnamed, unidentifiable
“homeless guy,” but provided no details that could be investigated to either
corroborate or disprove his story. The statements are self-serving and
unreliable and thus do not qualify as declarations against penal interest.
(Compare People v. Gallardo (2017) 18 Cal.App.5th 51, 70-76 (Gallardo)
[jailhouse statements to informants identifying codefendants as shooter and
driver of car from which shots were fired were too “ ‘ “self-serving and
unreliable” ’ ” to qualify as declarations against penal interest] with People v.
Almeda (2018) 19 Cal.App.5th 346, 363-368 [codefendant’s nontestimonial
jailhouse statements that included details police were able to corroborate
were against declarant’s own interest were not exculpatory, self-serving, or
collateral, and inextricably linked both defendants to crime, and so were

6 The parties do not dispute the third requirement, that the declarant
was unavailable, was met. (People v. Hill (1992) 3 Cal.4th 959, 990-991
[declarant claimed privilege against self-incrimination and court admitted his
statements under section 1230], overruled on other grounds in Price v.
Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.)

12
admissible against defendant].) Eric did not implicate himself in stealing the
vehicle, or committing any other crime, but rather stated that a third party
allowed him to borrow the vehicle. The trial court did not abuse its discretion
by finding Eric’s statements were not contrary to, or “specifically disserving”

of, his own penal interests. (People v. Leach (1975) 15 Cal.3d 419, 441.)7
The statements also lacked any indicia of trustworthiness. “ ‘There is
no litmus test for the determination of whether a statement is trustworthy
and falls within the declaration against interest exception. The trial court
must look to the totality of the circumstances in which the statement was
made, whether the declarant spoke from personal knowledge, the possible
motivation of the declarant, what was actually said by the declarant and
anything else relevant to the inquiry. . . . [T]he most reliable circumstance is
one in which the conversation occurs between friends in a noncoercive setting
that fosters uninhibited disclosures.’ ” (See People v. Tran (2013)
215 Cal.App.4th 1207, 1217.) Here, Eric made statements to an investigator
working on defense counsel’s behalf, months into the pendency of the
criminal prosecution and after the preliminary hearing had already occurred.
He made the statements with the express purpose of “help[ing] out Clayton
and be[ing] there for him.” The statements tended to exculpate both Clayton
and Eric by claiming that the truck was “borrowed” from an unidentified
“homeless guy.” The statements appear to have been made in an attempt to

7 Eric’s statement that he did not want to be blamed for the crime does
not alter our conclusion. The trial court properly found that Eric likely
wanted to help Clayton, and this statement reflected a reluctance to become
involved in the investigation, and falsely accused, rather than constituting an
admission of guilt. “The statement made to the defense investigator appears
more focused on exculpating [the defendant] than implicating [himself].”
(People v. Smith (2017) 10 Cal.App.5th 297, 304 (Smith).)

13
shift blame for possessing a stolen vehicle to the unidentified “homeless guy.”
Even assuming portions of Eric’s statements can be read as inculpatory to
some extent, the statements were nonetheless properly excluded as
unreliable. (See Grimes, supra, 1 Cal.5th at p. 716 [“sometimes a declarant
who makes an inculpatory statement may have a substantial incentive to
exculpate others. . . . A trial court in that situation may reasonably conclude
that the declarant’s incentive to protect his friends renders the . . . statement
inadmissible”].) Given the circumstances under which the statements were
made, the passage of time, the lack of details provided, and the possible
motivation to help his close friend, there is no indication Eric’s statements
were “sufficiently reliable to warrant admission despite [their] hearsay
character.” (Duarte, supra, 24 Cal.4th at p. 611; see Smith, supra,
10 Cal.App.5th at p. 304 [“ ‘The significant passage of time is a relevant
circumstance to be considered when determining a statement’s reliability.’ ”].)
In sum, because the statements were not disserving of Eric’s interests
and were not reliable or trustworthy, the statements were not admissible as
statements against penal interest under section 1230. (Gallardo, supra,
18 Cal.App.5th at pp. 75-76.)
D. Any Assumed Error Was Harmless
Even assuming the trial court erred in excluding the evidence, any
assumed error was harmless. Clayton contends he was prejudiced by the
exclusion of the evidence because it “(1) denied [him] from presenting his
defense that he did not know the truck was stolen and had permission to use
the truck; (2) prevented the jury from hearing evidence that someone other
than appellant stole the truck; and (3) denied [him] his due process right to a
fair trial.”

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 Clayton contends the exclusion of the evidence violated his federal due
process rights, such that reversal is warranted unless the error was harmless

beyond a reasonable doubt.8 (Chapman v. California (1967) 386 U.S. 18, 24
(Chapman).) In general, however, “the application of ordinary rules of
evidence . . . does not implicate the federal Constitution, and thus we review
allegations of error under the ‘reasonable probability’ standard” (People v.
Marks (2003) 31 Cal.4th 197, 227), which requires us to determine if a
reasonable probability exists that the jury would have reached a different
result had the evidence been admitted. (People v. Watson (1956) 46 Cal.2d
818, 836 (Watson).) Courts typically apply the Watson standard to assess
whether section 1230 error was harmless. (Smith, supra, 10 Cal.App.5th at
p. 305 [any assumed error in excluding statement under section 1230 held
harmless under Watson standard]; People v. Reyes (2019) 35 Cal.App.5th 538,
549 [erroneous exclusion of section 1230 evidence held to be prejudicial
because it was “reasonably probable [defendant] would have obtained a more
favorable result in this trial had [the evidence] not been excluded”].)
Whether the state or federal standard for harmless error applies
depends on whether the error can be considered a deprivation of federal
constitutional rights. (People v. Jandres (2014) 226 Cal.App.4th 340, 357.)
Any assumed error in excluding Eric’s statements to the investigator did not
deprive Clayton of his due process rights. Clayton had a meaningful
opportunity to present a complete defense despite the exclusion of Eric’s
statements. (See People v. Guillen (2014) 227 Cal.App.4th 934, 1019 [“a
defendant has no constitutional right to present all relevant evidence in his
favor,” and “ordinary evidentiary rules do not impermissibly infringe on the

8 Clayton did not object on federal constitutional grounds at trial.

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defendant’s right to present a defense”]; People v. Cunningham (2001)
25 Cal.4th 926, 999 [“Although the complete exclusion of evidence intended to
establish an accused’s defense may impair his or her right to due process of
law, the exclusion of defense evidence on a minor or subsidiary point does not
interfere with that constitutional right.”].) Clayton called two witnesses in
his defense: the investigator, who testified that both Eric and Megan had
been subpoenaed to appear at trial; and Megan, who testified that Clayton
obtained the vehicle from Eric, who had acquired the vehicle around
Christmas and given Clayton the vehicle a few days before his arrest. The
excluded statements, that Eric received the truck from “a homeless guy,” and
lent it to Clayton but also drove it, were mostly duplicative of Megan’s
testimony. We therefore reject Clayton’s claims he was precluded from
presenting his defense that he did not know the truck was stolen, he had
permission to use the truck, and someone else stole the truck.
Although we conclude any assumed error should be reviewed under the
standard set forth in Watson, any assumed error was harmless under the
Chapman standard too. The jury convicted Clayton of violating Vehicle Code
section 10851, which imposes criminal liability on “[a]ny person who drives or
takes a vehicle not his or her own, without the consent of the owner thereof,
and with intent either to permanently or temporarily deprive the owner
thereof of his or her title to or possession of the vehicle, whether with or
without intent to steal the vehicle . . . .” (Veh. Code, § 10851, subd. (a).) The
statute does not require the individual to steal the vehicle; merely driving it
post-theft is sufficient if the individual “ ‘driv[es] a vehicle without the
owner’s consent after the vehicle has been stolen, with the intent to
temporarily or permanently deprive the owner of title or possession.’ ”
(People v. Lara (2019) 6 Cal.5th 1129, 1136.) Although possession of stolen

16
property, on its own, is insufficient to establish guilt of a theft-related offense
(People v. Najera (2008) 43 Cal.4th 1132, 1138), defendant’s culpability can be
established when possession is “ ‘coupled with slight corroboration by other

inculpatory circumstances [that] tend to show guilt.’ ”9 (People v. Lopez
(2011) 198 Cal.App.4th 698, 709.) Here, Clayton was caught driving Griffin’s
truck, which was in a state of “disarray,” with a spray-painted black exterior
that did not match its white painted interior, a wooden board crudely
covering a broken back window, a broken headlight, and a broken bumper.
When officers attempted to make a traffic stop, Clayton continued to drive for
a mile before finally pulling over. The vehicle contained no documentation
indicating Clayton’s ownership. Clayton was no stranger to stolen vehicles,
as he previously was caught attempting to sell one, purportedly to help a
friend. These facts substantially corroborate the inference of guilt for
unlawfully driving a vehicle. (People v. O’Dell (2007) 153 Cal.App.4th 1569,
1575 [corroboration accompanying possession of stolen property “may consist
of no explanation, of an unsatisfactory explanation, or of other suspicious
circumstances that would justify the inference”].) Under these

9 The jury was instructed that “before you may rely on circumstantial
evidence to conclude that the defendant had the required intent or mental
state, you must be convinced that the only reasonable conclusion supported
by the circumstantial evidence is that the defendant had the required intent
or mental state. [¶] If you can draw two or more reasonable conclusions from
the circumstantial evidence, and one of those reasonable conclusions supports
a finding that the defendant did have the required intent or mental state and
another reasonable conclusion supports a finding that the defendant did not,
you must conclude that the required intent or mental state was not proved by
the circumstantial evidence. [¶] However, when considering circumstantial
evidence, you must accept only reasonable conclusions and reject any that are
unreasonable.” (CALCRIM No. 225.)

17
circumstances, any assumed error in excluding Eric’s statements to the
investigator was harmless beyond a reasonable doubt.
II.
Parole Revocation Restitution Fine
At sentencing, the trial court declined to impose a restitution fine,
stating, “There will not be a restitution fine, and the additional restitution

fine . . . will be stayed in the amount of $300.”10 The abstract of judgment
reflects a restitution fine of $0 (Pen. Code, § 1202.4) and a parole revocation
restitution fine of $300 (id., § 1202.45) suspended unless parole is revoked.
Clayton contends the parole revocation restitution fine must be stricken
because it was imposed in an amount different than the restitution fine. The
Attorney General concedes the parole revocation restitution fine is
unauthorized and must be stricken. We agree.
Penal Code section 1202.4 mandates imposition of a restitution fine
when a person is convicted of a crime, unless the court finds compelling and
extraordinary reasons for not doing so and states those reasons on the record.
(Pen. Code, § 1202.4, subd. (b).) Penal Code section 1202.45 requires
imposition of an additional parole revocation restitution fine in the same
amount as the section 1202.4 restitution fine if the sentence includes a period
of parole. (Id., § 1202.45, subd. (a).) Because the restitution fine was set at
zero, the parole revocation fine must also have been zero. (Pen. Code,
§§ 1202.4, subd. (b), 1202.45, subd. (a); see People v. Tillman (2000)
22 Cal.4th 300, 302.) We therefore modify the judgment to impose a parole
revocation fine of $0. (People v. Smith (2001) 24 Cal.4th 849, 853-854

10 The prosecutor did not object to the trial court’s failure to articulate its
reasons for not imposing the restitution fine.

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[imposition of the erroneous amount of a parole revocation fine is correctable
on appeal without the need to remand for further proceedings].)
DISPOSITION
We modify the judgment to impose a $0 parole revocation restitution
fine. We direct the trial court to prepare an amended abstract of judgment
and to forward a certified copy of the amended abstract of judgment to the
Department of Corrections and Rehabilitation. As modified, the judgment is
affirmed.

GUERRERO, J.

WE CONCUR:

HUFFMAN, Acting P. J.

DATO, J.

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