P. v. Weatherspoon

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Filed 1/9/07 P. v. Weatherspoon 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Yolo)
THE PEOPLE,
Plaintiff and Respondent,
v.
ADAM SAMUEL WEATHERSPOON,
Defendant and Appellant.
C050357
(Super. Ct. Nos.
CRF04-6698 &
CRF00-6620)
Defendant Adam Weatherspoon pleaded no contest to a charge
of possessing cocaine base for sale, and was granted probation.
While still on probation, he was charged with unlawfully driving
or taking a vehicle, transportation of cocaine base and
possession of cocaine base for sale. A jury found him guilty of
the vehicle charge and transportation charge, but were unable to
reach a verdict on the charge of possession for sale. The trial
court sentenced defendant to a total of nine years.

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Defendant argues the evidence was insufficient to sustain
his conviction on the vehicle charge, he received ineffective
assistance of counsel, and the trial court’s imposition of
consecutive sentences divorced from any factual determination by
the jury violated his Sixth and Fourteenth Amendment rights. We
find no error and shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On December 18, 2000, defendant pleaded no contest to a
charge of possession of cocaine base for sale. On January 18,
2001, he was granted probation for a period of three years,
which was later extended to January 18, 2005.
On October 21, 2004, West Sacramento Police Officer Nathan
Steele was on patrol in his vehicle when he noticed a 2005
Chevrolet Malibu Classic parked in the parking lot of a Motel 6.
A check of the license plate number revealed that the car had
been reported stolen two days earlier. Approximately 20 minutes
later, at 1:30 p.m. defendant drove away in the car, accompanied
by another man and a woman.
Steele followed the Malibu as it entered the freeway and
continued eastbound. By this time another patrol unit had
responded as well. Steele activated his lights and siren to
stop the Malibu, but instead of pulling over the driver,
defendant, began “flipping [them] off.”
Defendant exited the freeway and drove approximately a half
mile before pulling into a parking lot. Multiple officers had
arrived and had their guns pointed at the individuals in the
car. Steele told them to put their hands in the air, at which

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point defendant “flipped [them] off again.” Defendant then
said, “The car is not stolen.” At that point no one had
mentioned anything about the vehicle being stolen.
Defendant was hostile and uncooperative. He began making
furtive movements with his hands, so Steele pointed a taser at
him and told him he would be tasered if he did not comply.
Steele placed defendant under arrest and searched him.
Defendant had 11 pieces of individually wrapped cocaine base in
his right front pants pocket.
Defendant waived his Miranda1 rights and told Steele he had
obtained the Malibu from his “God sister” whose name he did not
know. He later said his God sister was named Lisa, that she was
a prostitute, and that she would “rip off” her clients. He said
that was how she had obtained the car. When Steele suggested
defendant must have known the car was stolen, defendant “back-
peddled” and said he did not know the car was stolen.
The Malibu had been rented from Alamo Car Rental. Steele
asked defendant if he had rented the car and had any rental
paperwork. Defendant replied, “No.” The rental documents for
the Malibu indicate it was rented by Lawrence McIntosh on
October 16, 2004, and was to have been returned on October 20,
2004. A copy of the rental agreement for the Malibu was located
by a lieutenant of the Yolo County jail in a bag belonging to
defendant. The parties stipulated that the Yolo County District
1 Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694].

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Attorney’s office had been unsuccessful in locating Lawrence
McIntosh.
The jury found defendant guilty of unlawfully driving or
taking a vehicle (Veh. Code, § 10851, subd. (a)) and
transportation of cocaine base (Health & Saf. Code, § 11352,
subd. (a)), but were unable to reach a verdict on the charge of
possession of cocaine base for sale. (Health & Saf. Code, §
11351.5.) The trial court found true a sentence enhancement for
a prior drug conviction (Health & Saf. Code, § 11370.2, subd.
(a)) based upon defendant’s no contest plea in the 2000 case.
The sentence enhancement provides for a consecutive three-year
term. (Health & Saf. Code, § 11370.2, subd. (a).)
The trial court sentenced defendant to a total aggregate
term of nine years, consisting of four years for the offense of
transporting cocaine base, three years for the enhancement,
eight months for the vehicle charge, and 16 months for the
charge of possessing cocaine base (to which defendant pleaded no
contest in 2001). All terms were consecutive.
DISCUSSION
I
Sufficiency of the Evidence
Unlawfully driving or taking a vehicle occurs when a person
drives or takes a vehicle without the consent of the owner with
the intent to permanently or temporarily deprive the owner of
title or possession of the vehicle. (People v. Llamas (1997) 51
Cal.App.4th 1729, 1736; Veh. Code, § 10851, subd. (a).)
Defendant argues there was insufficient evidence to prove

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defendant drove the Malibu without the consent of the owner or
that he had the specific intent to deprive the owner of
possession.
Defendant argues the testimony of the Malibu’s owner, Alamo
Rental Car, was required to establish that the car was stolen,
or that defendant did not have the owner’s consent to drive the
car. Defendant cites People v. Rodgers (1970) 4 Cal.App.3d 531,
in which the court of appeal reversed an auto theft conviction
where the owner’s husband testified the vehicle had been stolen,
but the owner did not testify. Here, however, there was
specific evidence that defendant did not have the owner’s
consent to drive the Malibu.
The prosecution subpoenaed the rental records of the Malibu
for the month of October 2004. The last person to rent the car
was Lawrence McIntosh on October 16th. McIntosh’s name was the
only one listed on the rental agreement. The back of the rental
agreement stated anyone but the “authorized driver” was
prohibited from driving the vehicle. The agreement defined
“authorized driver” as the licensed driver named on the front of
the agreement. The agreement stated any changes were required
to be in writing. Defendant was not named on the front of the
agreement. Accordingly, he did not have the permission of the
owner to drive the car.
Defendant argues subdivision (c) of Vehicle Code section
10851, which states: “In any prosecution for a violation of
subdivision (a) . . . the consent of the owner of a vehicle to
its taking or driving shall not in any case be presumed or

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implied because of the owner's consent on a previous occasion to
the taking or driving of the vehicle by the same or a different
person[,]” necessarily includes the corollary that the owner’s
lack of consent cannot be implied from consent on a previous
occasion. We are aware of no rule of construction, and
defendant has specified none, which would necessarily imply such
a corollary. Certainly in this situation, where there was no
authorized lease of the vehicle for the date defendant was
driving it, and where there was no authorization for defendant
to drive the vehicle, the evidence was sufficient to show
unauthorized use.
The evidence defendant had the intent to deprive the owner
of possession of the vehicle was also sufficient. The jury
could have inferred defendant’s specific intent to deprive the
owner of possession of the vehicle from defendant’s inconsistent
statements about the vehicle’s ownership, whether it was stolen,
and from the fact that defendant had the rental agreement in his
possession indicating the Malibu had been rented to someone else
and that the rental period had expired.
II
Effective Assistance of Counsel
Defendant argues his trial counsel was ineffective for
failing to object to the admission of inadmissible hearsay
testimony, namely officer Steele’s statement that the Malibu had
been reported stolen. To succeed on this argument, defendant
has the burden of showing trial “‘counsel’s representation fell
below an objective standard of reasonableness . . . under

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prevailing professional norms[,]’” and that he suffered
prejudice as a result of the ineffective representation.
(People v. Ledesma (1987) 43 Cal.3d 171, 216-217.) Prejudice is
shown if there is a reasonable probability that the result would
have been more favorable to defendant but for the unprofessional
error. (People v. Williams (1997) 16 Cal.4th 153, 215.)
If the record on appeal shows no reason why trial counsel
acted or failed to act in the challenged manner, the claim must
be rejected on appeal unless there simply could be no
satisfactory explanation or unless counsel was asked for an
explanation and failed to give one. (People v. Mendoza Tello
(1997) 15 Cal.4th 264, 266.) The record here sheds no light on
why trial counsel did not object to the evidence. The decision
to object to inadmissible evidence is inherently a tactical
decision, and failure to object seldom establishes incompetence.
(People v. Williams, supra, 16 Cal.4th at p. 215.) Counsel
could have concluded the evidence was not hearsay because it was
being offered to explain officer Steele’s action, or that the
testimony was not prejudicial since defendant contended he
thought he legitimately was in possession of the vehicle. On
this record we cannot say that there simply could not be any
satisfactory reason for failing to object to the introduction of
the evidence. Defendant has not established incompetence.
III
Blakely Error
Defendant argues the trial court’s decision to impose
consecutive terms for counts one and two were divorced from any

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factual determination by the jury and therefore violated his
Sixth and Fourteenth Amendment rights, as construed by the
United States Supreme Court in Blakely v. Washington (2004) 542
U.S. 296 [159 L.Ed.2d 403] and Apprendi v. New Jersey (2000) 530
U.S. 466 [147 L.Ed.2d 435]. The California Supreme Court
rejected this argument in People v. Black (2005) 35 Cal.4th
1238, 1244. We are bound by this decision. (Auto Equity Sales,
Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
DISPOSITION
The judgment is affirmed.
BLEASE , J.
We concur:
SCOTLAND , P. J.
MORRISON , J.

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