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March 16, 2026 Get Citation Alerts Download PDF Add Note

People v. Tovar CA2/6

California Court of Appeal

• Citations: None known
• Docket Number: B338286

• Precedential Status: Non-Precedential

• Opinion

• Authorities (11)

• Cited By (0)

• Summaries (0)

• Similar Cases (1.5K)

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Combined Opinion

Filed 3/16/26 P. v. Tovar 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B338286
(Super. Ct. No. BA490799;
Plaintiff and Respondent, BA490799-04; XCNBA490799-04)
(Los Angeles County)
v.

JASINTO TOVAR,

Defendant and Appellant.

Jasinto Tovar appeals a judgment following his conviction
after a jury trial for two counts of procuring or offering a false or
forged instrument (Pen. Code, § 115, subd. (a); counts 1 and 3)
and two counts of falsifying a certificate (Veh. Code, § 4463, subd.
(a)(1); counts 2 and 4). Imposition of sentence was suspended
and Tovar was placed on probation for two years, with terms
including 120 days in county jail.
Tovar contends the trial court improperly instructed the
jury regarding general intent (CALJIC No. 3.30), thereby
removing an element of the offense charged in counts 1 and 3,
and depriving him of his rights under the Sixth and Fourteenth
Amendments. We affirm.
FACTUAL AND PROCEDURAL HISTORY
License Status
In 2015, Tovar applied for a smog inspection station license
doing business as La Familia Smog Check. The business address
listed in the application is the same address for Josh Smog
Center located in North Hollywood.
Tovar did not have a valid license to operate a smog
station, nor did he have a smog technician license from October
2018 through June 2019.
Bureau of Automotive Repair
The Bureau of Automotive Repair (BAR) is a consumer
protection agency that oversees and investigates violations of the
Automotive Repair Act, smog inspections and repair laws. Smog
inspections are required every two years. The average cost of a
smog inspection ranges from $30 to $70. Smog inspection
facilities and smog technicians are required to be licensed. A
smog technician may not allow another person to use their
license, nor are they permitted to allow another person to sign a
vehicle inspection report (VIR) on their behalf.
The Smog Inspection Process
Vehicles manufactured in 2000 or after are smog inspected
by using an On-board Inspection System (OIS). The OIS device
consists of a monitor, computer, keyboard, bar code scanner and
data acquisition device. A cable is plugged into the data
acquisition device and vehicle which communicates information
about the vehicle to the OIS which then determines if the vehicle
passed or failed a smog inspection.
A smog inspection is a multi-step process that requires: 1)
verification of the smog technician’s license by either scanning a
badge or inputting the user name and password to access the

2
OIS; 2) scanning the vehicle registration document to verify the
registration and vehicle match; 3) conducting a visual inspection
to confirm the vehicle’s emissions components have not been
tampered with; 4) conducting a functional check of the vehicle’s
computer for any diagnostic trouble codes; 5) performing tests of
different components of the vehicle for emissions related
concerns; and 6) visually verifying if the check engine light is
illuminated. A vehicle with an illuminated check engine light
cannot pass a smog inspection.
Once a vehicle passes a smog inspection, the OIS prints a
VIR, also known as a smog certificate. A copy of the VIR is
provided to the customer, and the certificate is transmitted
electronically to the Department of Motor Vehicles (DMV).
There are “OBD [on board diagnostic tool] defeat devices]”
capable of falsifying or defeating a smog inspection. One OBD
defeat device brand carries a device known as an “OBDNATOR.”
These devices manipulate data from the vehicle so the OIS
computer reports that there are no error codes in the system,
allowing the vehicle to pass a smog inspection. It is unlawful to
use such a device while performing a smog inspection.
Investigations
BAR conducted two undercover investigations of Smog Way
between October 2018 and January 2019. BAR Investigators
installed video recording equipment in two vehicles, a 2006
Toyota Camry and a 2007 Dodge Ram. Investigators
manipulated both vehicles so they would fail smog inspections.
November 2018, Investigation (Counts 1 and 2)
A BAR investigator brought the Toyota Camry to Smog
Way and paid $250 for a smog inspection. After failing a smog
inspection at Smog Way, its owner told the investigator he would

3
get the vehicle to pass and drove away in the Toyota Camry. He
returned 30 minutes later and told the investigator the vehicle
did not pass, and to return another day. The VIR indicated that
the smog inspection was performed at Josh Smog Center. Josh
Smog Center was located one to two miles away from Smog Way.
The investigator returned to Smog Way three days later. A
Smog Way employee drove the Toyota Camry to Josh Smog
Center. The video from the Toyota Camry showed Tovar at Josh
Smog Center standing in front of the OIS system facing the
keyboard while a second individual removed an OBD defeat
device from a black bag and plugged it into the Toyota Camry.
The OIS produced a VIR indicating the Toyota Camry passed the
smog inspection. Tovar placed the VIR inside the Toyota Camry.
The VIR listed the smog technician as a third individual.
January 2019, Investigation (Counts 3 and 4)
On January 15, 2019, the investigator returned to Smog
Way for a smog inspection of a 2007 Dodge Ram and paid $250.
An employee drove the Dodge Ram to Josh Smog Center to get it
“smogged.” The employee returned with a VIR indicating the
Dodge Ram had passed the smog inspection. Video footage shows
Tovar holding an OIS scanner and entering data at the OIS
console. Tovar removed an OBD defeat device out of a black
plastic bag and plugged it into a cable under the dashboard of the
Dodge Ram. A document was produced from the OIS and Tovar
tossed it into the Dodge Ram. The VIR submitted to the DMV
indicates the smog technician was an individual who is never
seen on video during the smog inspection on January 15, 2019.
BAR performed a smog inspection on the Dodge Ram after the
investigation, and it failed to pass.

4
A week after the smog inspection, a search warrant was
executed at Josh Smog Center. Tovar was the only employee
working at the time the warrant was executed. A BAR
Investigator observed an OBDNATOR defeat device connected to
a Toyota Prius. Investigators also seized smog technician badges
for the individuals whose names were on the VIRs. Tovar
presented investigators with a California identification card that
belonged to someone else.
DISCUSSION
Tovar contends the trial court improperly instructed the
jury regarding general intent (CALJIC No. 3.30), removing the
knowledge element of the offense, depriving him of his rights
under the Sixth and Fourteenth Amendments. There is no
reversible error.
Standard of Review
Instructional error claims are reviewed de novo. (People v.
Mitchell (2019) 7 Cal.5th 561, 579). “The independent or de novo
standard of review is applicable in assessing whether [jury]
instructions correctly state the law.” (People v. Posey (2004) 32
Cal.4th 193, 218).
CALJIC No. 3.30
The trial court instructed the jury with CALJIC No. 3.30,
as follows:
“In the crime charged in counts 1 and 3, offering a false
instrument, there must exist a union or joint operation of act or
conduct and general criminal intent. General criminal intent
does not require an intent to violate the law. When a person
intentionally does that which the law declares to be a crime, he is
acting with general criminal intent, even though he may not
know that his act or conduct is unlawful.”

5
Tovar argues that the trial court erred when it gave
CALJIC No. 3.30, because by doing so it removed an element of
counts 1 and 3. “The trial court has a sua sponte duty to instruct
the jury on the essential elements of the charged offense.”
(People v. Merritt (2017) 2 Cal.5th 819, 824.) The court also has a
sua sponte duty to instruct on the required intent or mental
state. (People v. Alvarez (1996) 14 Cal.4th 155, 220, People v.
Alvarado (2005) 125 Cal.App.4th 1179, 1185, People v. Jo (2017)
15 Cal.App.5th 1128, 1160.) While CALJIC No. 3.30 did not
provide the jury with the requisite specific mental state for the
offense, the court did give CALJIC Nos. 15.06 and 1.21, which
correctly instructed the jury of the required mental state for the
offense.
Here, the trial court properly gave CALJIC No. 15.06
defining the elements for counts 1 and 3, as follows:
“The defendant, [Tovar], is accused in Counts 1 and 3 of
having violated section 115, subdivision (a) of the Penal Code, a
crime.
“Every person who knowingly procures or offers any false
or forged instrument to be filed, registered, or recorded in any
public office within this state, which instrument, if genuine,
might be filed, registered or recorded under any law of this state
or of the United States, is guilty of a violation of Penal Code
section 115, subdivision (a), a crime.
“In order to prove this crime, each of the following elements
must be proved: [¶] 1. A person procured or offered a false or
forged instrument to be filed, registered, or recorded in a public
office of this state; [¶] 2. The instrument, if genuine, was one
which it was proper to file, register, or record; and [¶] 3. The

6
person knew that the instrument was false or forged.” (Italics
added.)
The trial court also instructed the jury with CALJIC No.
1.21, as follows:
“The word ‘knowingly,’ means with knowledge of the
existence of the facts in question. Knowledge of the unlawfulness
of any act or omission is not required. A requirement of
knowledge does not mean the act must be done with any specific
intent.” (Italics added.)
Together these instructions correctly instructed the jury
that to find Tovar guilty of counts 1 and 3, they had to find that
he knew the instrument was false or forged.
“ ‘In reviewing a claim of error in jury instructions in a
criminal case, this court must first consider the jury instructions
as a whole to determine whether error has been committed.
[Citations.] We may not judge a single jury instruction in
artificial isolation, but must view it in the context of the charge
and the entire trial record.’ ” (People v. Serrano (2022) 77
Cal.App.5th 902, 909).) The failure to give an instruction on an
essential issue, or the giving of erroneous instructions, may be
cured if the essential material is covered by other instructions
properly given. (People v. Dieguez (2001) 89 Cal.App.4th 266,
277; see also, People v. Castillo (1997) 16 Cal.4th 1009, 1016.)
“In reviewing a claim of instructional error, the court must
consider whether there is a reasonable likelihood that the trial
court’s instructions caused the jury to misapply the law in
violation of the Constitution.” (People v. Mitchell (2019) 7 Cal.5th
561, 579; see also, People v. Wallace (2008) 44 Cal.4th 1032,
1075). Here, the instructions as a whole were not misleading. It
is not reasonably likely that by giving CALJIC No. 3.30, the trial

7
court misdirected the jury or led them to believe that knowledge
of the falsity of the instrument was not required.
Tovar relies on People v. Southard (2021) 62 Cal.App.5th
424. The People argue that Southard is distinguishable. We
agree with the People. In Southard, the defendant was charged
with seven counts of forcible resisting arrest and obstructing a
peace officer, and one count of possession of methamphetamine,
all of which had an element dealing with his mental state. The
trial court erroneously gave a special instruction that removed an
element from the seven counts related to the resisting and
obstructing charges. The court compounded the instructional
error when it gave CALCRIM No. 250, instructing the jury that
they could “convict defendant on all counts solely “if it found ‘he
intentionally [did] a prohibited act; however, it is not required
that [he] intended to break the law.’ ” (Southard, supra, 62
Cal.App.5th at p. 437.)
Here, the trial court gave CALJIC No. 3.30, which
instructed the jury that knowledge of the unlawfulness of any act
or omission was not required. This instruction did not eliminate
the requirement of knowledge that the instruments in question
were false or forged, rather it told the jury that Tovar did not
need to know that the act of offering or procuring a false VIR was
unlawful. Here, unlike in Southard, the trial court’s instructions
did not remove an element of the offense.
The jury was instructed correctly on the required mental
state in CALJIC Nos. 15.06 and 1.21. The claim that the general
intent instruction in CALJIC No. 3.30 misdirected or misled the
jury from applying the proper elements of the crime is
unsupported by the record. The instructions effectively told the

8
jury that to find Tovar guilty of the offense, they had to find he
knew that the VIRs were false or forged.
Harmless Error
Tovar contends the Chapman v. California (1967) 386 U.S.
18, 24 (Chapman) “beyond a reasonable doubt” standard for
assessing prejudice applies. The People argue that the People v.
Watson (1956) 46 Cal.2d 818, 836 (Watson) standard should
apply. We need not decide whether the Chapman or Watson
standard for prejudicial error applies here because the error was
harmless under either standard.
Evidence of Tovar’s knowledge of the false nature of the
VIRs in this case was overwhelming. Tovar did not have a smog
technician license nor a license to operate a smog inspection
facility at any time during the investigation. In 2015, Tovar
submitted an application for a smog inspection facility license
which included the following notice, “you may not perform any
activities at this location for which you are required to possess a
valid Smog Station License, until a Smog Station License is
issued.” This was strong evidence that Tovar was aware that a
license was required to perform smog inspections and was aware
of the fraudulent nature of the VIRs he helped create and submit
to the DMV.
Two separate undercover operations in this case yielded
significant video evidence of Tovar’s involvement in the
fraudulent smog inspections of both the Toyota Camry and Dodge
Ram. A video from the November 2018 investigation captured
Tovar standing near the Toyota Camry, moving the OIS system
closer to the vehicle, then positioning himself directly in front of
it to input information. Meanwhile, another Josh Smog Center
employee was inside the Toyota Camry connecting an OBD defeat

9
device. Tovar placed the fraudulent VIR in the Toyota Camry
after the smog inspection was complete.
During the second investigation in January 2019, Tovar is
seen on video performing a smog inspection of the Dodge Ram.
He is seen inputting data into the OIS system, removing an OBD
defeat device from a black plastic bag and plugging it into the
Dodge Ram. Tovar never looked under the hood or performed
any visible inspection of the Dodge Ram, which is necessary
during a proper smog inspection. Tovar placed the false VIR into
the vehicle after the smog inspection.
When the search warrant was executed at Josh Smog
Center, Tovar was conducting a smog inspection on a Toyota
Prius with an OBDNATOR defeat device plugged into it.
Investigators located two smog technician badges at Josh Smog
Center, neither of which belonged to Tovar. Tovar presented
investigators with a California identification card belonging to
someone else. Contrary to Tovar’s argument, he was not “simply
present at the smog check and handling a VIR.” He was actively
involved in the fraudulent smog inspections and was aware that
the VIRs were false.
Furthermore, the jury convicted Tovar of two counts
(counts 2 and 4) of falsifying a certificate in violation of Vehicle
Code section 4463, subdivision (a)(1).
Vehicle Code section 4463, subdivision (a), provides in
pertinent part:
“A person who, with intent to prejudice, damage, or
defraud, commits any of the following acts is guilty of a felony
. . . . ¶ Alters, forges, counterfeits, or falsifies a . . .
certificate . . . .”

10
The jury was instructed that counts 2 and 4 (Veh. Code,
§ 4463, subd. (a)(1)) requires that a person “falsified a certificate”
and “did so with the specific intent to prejudice, damage or
defraud.” (CALJIC No. 15.07 modified; see Veh. Code, § 4000.3
[smog certificate must be submitted to DMV].) By convicting
Tovar of counts 2 and 4, the jurors concluded that Tovar had the
intent to defraud when he falsified the certificates (i.e., the VIRs
for the Toyota Camry and Dodge Ram). They would necessarily
believe he knew the VIRs he was procuring or offering were false
since they convicted him of falsifying the very same documents.
We conclude that there is no evidence in the record that
could rationally lead a jury to believe that knowledge was not a
required element in this case, nor do we believe that there is a
reasonable likelihood that giving CALJIC No. 3.30 caused the
jury to misapply the law in violation of the Constitution. We
conclude that error, if any, in the court’s instruction of CALJIC
No. 3.30, was harmless beyond a reasonable doubt. (Chapman,
supra, 386 U.S. at p. 26.)
Similarly, in reviewing the trial court’s alleged
constitutional error, if any, under the Watson standard, we
conclude that there is no reasonable probability that the outcome
of Tovar’s trial would have been different had the court properly
instructed the jury. (Watson, supra, 46 Cal.2d at p. 836.)

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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.

DEROIAN, J.*

We concur:

YEGAN, J, Acting P. J.

CODY, J.

• Judge of the Santa Barbara Superior Court assigned by

the Chief Justice pursuant to article 6, section 6 of the California
Constitution.

12
Craig Elliott Veals, Judge

Superior Court County of Los Angeles

---

Debbie Yen, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Noah P. Hill and Thomas C. Hsieh,
Deputy Attorneys General, for Plaintiff and Respondent.