IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S120551
v.
) Ct.App.
6
H024041
CARLOS OZUNA GARZA,
Santa Clara County
Defendant and Appellant.
Super. Ct. No. CC095672
This case involves the interplay between two criminal law statutes: one a
provision of the Penal Code, the other a provision of the Vehicle Code.
Subdivision (a) of Penal Code section 496 (hereafter section 496(a))
defines the crime of receiving stolen property. It also provides that a person who
has been convicted of the theft of property may not also be convicted of receiving
the same property. This provision codifies a common law rule prohibiting
separate convictions of the same person for stealing and receiving the same
property. (People v. Allen (1999) 21 Cal.4th 846, 857 (Allen).)
Subdivision (a) of Vehicle Code section 10851 (hereafter section
10851(a)), defines the crime of unlawful driving or taking of a vehicle.
Unlawfully taking a vehicle with the intent to permanently deprive the owner of
possession is a form of theft, and the taking may be accomplished by driving the
vehicle away. For this reason, a defendant convicted under section 10851(a) of
unlawfully taking a vehicle with the intent to permanently deprive the owner of
1
possession has suffered a theft conviction and may not also be convicted under
section 496(a) of receiving the same vehicle as stolen property. On the other
hand, unlawful driving of a vehicle is not a form of theft when the driving occurs
or continues after the theft is complete (for convenience, we will refer to this as
“post-theft driving”). Therefore, a conviction under section 10851(a) for post-
theft driving is not a theft conviction and does not preclude a conviction under
section 496(a) for receiving the same vehicle as stolen property.
The issue here is whether a conviction under section 10851(a) for unlawful
taking or driving of a vehicle bars a conviction under section 496(a) for receiving
the same vehicle as stolen property when the evidence at trial adequately
supported the section 10851(a) conviction on either a taking or a post-theft driving
theory, the prosecutor argued both the taking and the post-theft driving theories to
the jury, the trial court’s instructions did not require the jury to choose between the
theories and did not explain the rule prohibiting convictions for stealing and
receiving the same stolen property, and the jury’s guilty verdict did not disclose
which theory or theories the jurors accepted.
Consistent with prior Court of Appeal decisions, we conclude that when, as
in this case, the evidence is such that it is not reasonably probable that a properly
instructed jury would have found that the defendant took the vehicle but did not
engage in any post-theft driving, a reviewing court may construe the Vehicle Code
section 10851(a) conviction as a conviction for post-theft driving and on this basis
may uphold the conviction under Penal Code section 496(a) for receiving the same
vehicle as stolen property. Because the Court of Appeal reached the opposite
conclusion, we will reverse its judgment.
I
AAA Limousine Service (AAA), a limousine rental company with a fleet of
around 50 vehicles, employed defendant Carlos Ozona Garza as a mechanic, but it
2
terminated his employment on or before December 5, 2000. AAA kept many of
its vehicles in a fenced lot, the gate to which was often unlocked. It kept the keys
to its vehicles on an unlocked board in its dispatch office. While taking an
inventory on December 21, 2000, AAA was unable to locate one of its vehicles, a
Lincoln Town Car. After waiting six days to see whether the car would turn up,
AAA reported it as stolen on December 27, 2000.
Later that same day, San Jose Police Officer Kelvin Pham saw AAA’s
missing car in the middle of a strip mall parking lot in San Jose two to three blocks
from AAA’s place of business. The driver’s door was open, the interior light was
on, defendant was sitting in the driver’s seat, the key was in the ignition, and the
engine was running. Defendant was awake but seemed sleepy. He did not answer
Officer Pham’s questions, and when the officer helped him out of the car,
defendant was staggering, drooling, and sweating, and his speech was slurred.
Officer Pham concluded that defendant was under the influence of PCP or another
controlled substance.
The District Attorney of Santa Clara County, by information, charged
defendant with violations of section 10851(a) (unlawfully taking or driving
another’s vehicle), section 496(a) (receiving stolen property), and Health and
Safety Code section 11550 (being under the influence of a controlled substance).
To charge the section 10851(a) violation, the information alleged that “[o]n or
about December 27, 2000” defendant “did drive and take a vehicle . . . without the
consent of the owner and with the intent to deprive the owner of title to and
possession of the vehicle.” The information also alleged that defendant had served
two prior prison terms (Pen. Code, § 667.5, subd. (b)).
At trial, the prosecution presented evidence of the facts as stated above, and
the defense rested without offering any evidence. In argument to the jury, the
prosecutor said: “In this trial the People are asking that the defendant be held
3
accountable for being under the influence of PCP and taking a car that didn’t
belong to him.” Regarding the offense of unlawful taking or driving of a vehicle,
the prosecutor said: “The prosecution doesn’t have to prove that the defendant
took the car ‘and’ drove it. All the prosecution has to prove is one or the other.”
The prosecutor argued that there was “a wealth of circumstantial evidence” to
prove beyond a reasonable doubt that defendant had taken AAA’s vehicle and also
to prove that defendant had driven it. The prosecutor said: “Members of the Jury,
we know from all the circumstantial evidence that prior to the officer . . . arriving
at the strip mall, [defendant] drove the car and took the car.” “And we know from
the surrounding circumstances he took or he drove that car. He didn’t have the
right to take that car, and at the time that he was driving it, taking it, he wasn’t
giving it back.”
Regarding the offense of receiving stolen property, the prosecutor stated:
“The defendant is charged in Count 2 with receiving stolen property. Basically
this is the exact same offense as the one charged in Count 1. The only difference
is it requires less proof.”
On rebuttal, the prosecutor said: “You have to use all the circumstantial
evidence to show that this man knew exactly what he was doing, he took the car
and that the car didn’t belong to him.”
The trial court instructed the jury: “When, as in this case, the crime can be
committed in more than one way, the charge is phrased in the conjunctive, using
‘and,’ in order to advise [the defendant] of the several ways the crime may be
committed. However, the proof may require only one of those ways to be
committed, phrased in the disjunctive, using ‘or,’ leaving to the jury the decision
as to which way has been proven.” The court instructed that to show a violation of
4
section 10851(a), the prosecution had to prove that “[a] person took or drove a
vehicle belonging to another person.”1 No unanimity instruction was given.
The jury found defendant guilty as charged. The jury’s general verdict for
the section 10851(a) violation did not specify whether it was based on taking,
post-theft driving, or both, and no special finding or special verdict was requested
or returned. The prior prison term allegations, which had been bifurcated, were
tried to the court, which found the allegations true. At the sentencing hearing, the
trial court imposed the upper term of four years for the section 10851(a) violation,
with two consecutive one-year enhancement terms for the prior prison terms. The
court sentenced defendant to a three-year term for receiving stolen property
(§ 496(a)), but it stayed that term under Penal Code section 654, which prohibits
multiple punishment for different crimes committed by a single act or omission.
For the misdemeanor drug offense, the court imposed a term of six months, to be
served concurrently. Defendant appealed.
The Court of Appeal reversed defendant’s convictions for receiving stolen
property (§ 496(a)) and violating section 10851(a), but it directed the trial court to
reinstate the section 10851(a) conviction if the prosecution did not elect “to retry
the defendant on a theory permitting the dual conviction.” The Court of Appeal
1
The instruction stated in full: “The defendant is accused in Count One of
having violated section 10851 of the Vehicle Code, a crime. [¶] Every person
who drives or takes a vehicle not his own without the consent of the owner, and
with the specific intent to deprive the owner either permanently or temporarily of
his title or possession of the vehicle, is guilty of a violation of Vehicle Code
section 10851, a crime. [¶] In order to prove this crime, each of the following
elements must be proved: [¶] One. A person took or drove a vehicle belonging to
another person; [¶] Two. The other person had not consented to the taking or
driving of the vehicle; and [¶] Three. When the person took or drove the vehicle,
he had the specific intent to deprive the owner either permanently or temporarily
of his title to or possession of the vehicle.”
5
interpreted the section 10851(a) conviction as a conviction for “auto theft,” and it
concluded that defendant could not also be convicted of receiving the same
vehicle as stolen property.
This court granted the Attorney General’s petition for review.
II
Section 496(a), as here relevant, provides: “Every person who buys or
receives any property that has been stolen or that has been obtained in any manner
constituting theft or extortion, knowing the property to be so stolen or obtained, or
who conceals, sells, withholds, or aids in concealing, selling, or withholding any
property from the owner, knowing the property to be so stolen or obtained, shall
be punished by imprisonment in a state prison, or in a county jail for not more than
one year. . . . [¶] A principal in the actual theft of the property may be convicted
pursuant to this section. However, no person may be convicted both pursuant to
this section and of the theft of the same property.” The Legislature added the last
two sentences by amendment in 1992. (Stats. 1992, ch. 1146, § 1, p. 5374.)
A common law rule likewise prohibits separate convictions for stealing and
receiving the same property. (People v. Jaramillo (1976) 16 Cal.3d 752, 757
(Jaramillo).) This common law rule has an exception: It does not apply in the
uncommon situation “when there is evidence of complete divorcement between
the theft and a subsequent receiving, such as when the thief has disposed of the
property and subsequently receives it back in a transaction separate from the
original theft.” (Id. at p. 759, fn. 8, italics added.)
As we have explained, the common law rule exists, or may be understood,
in both broad and narrow forms. In its broad form, the rule “declares that ‘one
cannot be both thief and receiver of the same stolen property.’ ” (Allen, supra, 21
Cal.4th at p. 853.) In this form, the rule precludes not only “dual convictions of
both stealing and receiving the same property,” but also a conviction for receiving
6
stolen property “when the defendant has not been convicted of stealing the same
property but there is evidence implicating him in the theft.” (Ibid.)
By comparison, the narrow form of the common law rule prohibits only
dual convictions. “It applies only when the defendant has suffered actual
convictions—whether concurrently in one prosecution or consecutively in separate
prosecutions—of both stealing and receiving the same property.” (Allen, supra,
21 Cal.4th at p. 853.)
Before the Legislature’s 1992 amendment of section 496(a), which pertains
to the crime of receiving stolen property, California law was governed by the
common law rule, but from the published appellate decisions it was uncertain
whether California recognized the broad or the narrow form of the rule. (See
Allen, supra, 21 Cal.4th at pp. 851-857 [reviewing cases].) As we have explained,
the second sentence of the 1992 amendment—stating that “no person may be
convicted both pursuant to this section and of the theft of the same property”—
codified the narrow form of the common law rule. (Allen, supra, at p. 857.) The
first sentence of the 1992 amendment—stating that “[a] principal in the actual
theft of the property may be convicted pursuant to this section”—effectively
abrogated or repudiated the broad form of the rule. Thus, after the Legislature’s
1992 amendment of section 496(a), there is no longer any room for doubt that a
person who steals property may be convicted of receiving that property, “provided
he has not actually been convicted of the theft.” (Allen, supra, at p. 857.)
Section 10851(a) provides: “Any 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, or
any person who is a party or an accessory to or an accomplice in the driving or
unauthorized taking or stealing, is guilty of a public offense and, upon conviction
7
thereof, shall be punished by imprisonment in a county jail for not more than one
year or in the state prison or by a fine of not more than five thousand dollars
($5,000), or by both the fine and imprisonment.” (Italics added.)
We have observed that section 10851(a) “proscribes a wide range of
conduct.” (Jaramillo, supra, 16 Cal.3d at p. 757.) A person can violate section
10851(a) “either by taking a vehicle with the intent to steal it or by driving it with
the intent only to temporarily deprive its owner of possession (i.e., joyriding).”
(Allen, supra, 21 Cal.4th at p. 851; accord, People v. Superior Court (Zamudio)
(2000) 23 Cal.4th 183, 205; see also People v. Barrick (1982) 33 Cal.3d 115, 135
[“The acts constituting driving a vehicle and taking a vehicle are separate and
distinct”]; Jaramillo, supra, at p. 759, fn. 6 [“the section prohibits driving as
separate and distinct from the act of taking”].)
A person who violates section 10851(a) by taking a car with the intent to
permanently deprive the owner of possession, and who is convicted of that offense
on that basis, cannot also be convicted of receiving the same vehicle as stolen
property. (Jaramillo, supra, 16 Cal.3d at p. 759; People v. Briggs (1971) 19
Cal.App.3d 1034, 1036.) If, on the other hand, a section 10851(a) conviction is
based on post-theft driving, a separate conviction under section 496(a) for
receiving the same vehicle as stolen property is not precluded. (Jaramillo, supra,
at p. 758; People v. Cratty (1999) 77 Cal.App.4th 98, 102-103; People v. Austell
(1990) 223 Cal.App.3d 1249, 1252.)
Here, we must decide whether a defendant who is convicted of a section
10851(a) violation (unlawfully taking or driving another’s vehicle) may also be
convicted under section 496(a) of receiving the same vehicle as stolen property
when the evidence does not exclude the possibility that the defendant committed
both theft and nontheft forms of the section 10851(a) offense by taking the vehicle
with an intent to permanently deprive the owner of possession and later also
8
engaging in post-theft driving. We review in chronological order the most
significant published appellate decisions that have addressed this situation.
In Jaramillo, supra, 16 Cal.3d 752, police officers found the defendant in a
parked car that had been stolen 12 days earlier in a different county. (Id. at
pp. 754-755.) No witness testified to having seen the defendant either take or
drive the car, but the prosecution’s circumstantial evidence was sufficient to
establish that he had done both. A jury convicted the defendant of unlawful
driving or taking under section 10851(a) and also of receiving stolen property.
(Jaramillo, supra, at p. 754.) This court observed that it was impossible to
determine from the guilty verdict on the section 10851(a) charge “which
combination of proscribed conduct and intent resulted in the finding of guilt.”
(Jaramillo, supra, at p. 758.)
The dual convictions could not be affirmed, we concluded, and we gave
this explanation: “When, as here, . . . the record does not disclose or suggest what
specific findings were made in convicting a defendant of a violation of Vehicle
Code section 10851 but it nevertheless appears that the fact finder may have found
that the defendant intended to steal the vehicle, a second conviction based on a
further finding that the defendant received that same stolen property is
foreclosed.” (Jaramillo, supra, 16 Cal.3d at p. 759.) “[I]f the fact finder
concludes that an accused took a vehicle with intent to permanently deprive the
owner of possession or title to the vehicle in violation of Vehicle Code section
10851, he may not also be convicted of a violation of Penal Code section 496,
subdivision 1, and the same rule necessarily follows when the record permits an
inference which cannot be rebutted that the fact finder may have made such a
finding in convicting an accused of a violation of Vehicle Code section 10851.”
(Id. at p. 759.) We reversed the judgment as to both convictions, but we allowed
the trial court to reinstate the section 10851(a) conviction if the prosecution
9
elected not to retry the defendant as to either or both of the charges. (Jaramillo,
supra, at p. 760.)
In People v. Austell, supra, 223 Cal.App.3d 1249, 1251, a police officer
stopped the defendant as he was driving a car that had been stolen some 16 days
earlier. The Court of Appeal concluded that our decision in Jaramillo, supra, 16
Cal.3d 752, was distinguishable, and that the defendant was properly convicted of
both receiving stolen property and a section 10851(a) violation, because the
defendant “was not prosecuted as the thief.” (People v. Austell, supra, at p. 1252.)
“The prosecutor expressly told the jury that the prosecution was based on the
driving element of [section 10851(a)] and not the taking element.” (Ibid.) The
court concluded that the record rebutted any inference that the jury had convicted
the defendant of a theft offense. (Ibid.)
In People v. Strong (1994) 30 Cal.App.4th 366, 369 (Strong), the defendant
was arrested while driving a stolen pickup truck, and he was convicted of both
receiving stolen property and violating section 10851(a). In its opinion on appeal,
the Court of Appeal stated that the evidence at trial conclusively proved that the
defendant had driven the pickup. (Id. at p. 372.) Although there was also
substantial evidence that defendant had taken the pickup, that evidence was “less
conclusive.” (Ibid.) Moreover, because four days elapsed between the taking and
the defendant’s arrest while driving the vehicle, and because the driving was not
part of a “ ‘continuous journey away from the locus of the theft,’ ” the taking and
the driving were not part of “one continuous violation of section 10851, in which
the driving was part and parcel of the taking.” (Id. at pp. 374-375.) Rather, the
taking and the driving were “two distinct violations of section 10851,” and
therefore a conviction based on the post-theft driving was not a theft conviction
and did not bar a conviction for receiving the pickup as stolen property. (Id. at p.
374.)
10
The Court of Appeal in Strong stated that the trial court should have
instructed the jury “that if it convicted defendant of unlawfully taking the pickup,
or of unlawfully driving the pickup as part of the original taking, it could not also
convict him of receiving or withholding the pickup.” (Strong, supra, 30
Cal.App.4th at p. 376.) But the Court of Appeal concluded that the error was
harmless beyond a reasonable doubt because the defendant was “indisputably
driving the pickup when he was arrested” and no reasonable juror could have
found that he was then “still engaged in the original taking.” (Ibid.) The court
affirmed the dual convictions for violating section 10851(a) and receiving stolen
property. (Strong, supra, at p. 377.)
In People v. Cratty, supra, 77 Cal.App.4th 98, 99-100 (Cratty), the
defendant was convicted of receiving stolen property and violating section
10851(a) based on evidence that a California Highway Patrol officer had stopped
and arrested the defendant as he was driving a car that had been stolen some eight
months earlier. Because it was undisputed that the defendant drove the stolen car,
the Court of Appeal reasoned that “the jury must have at least found that
defendant violated the (nontheft) ‘driving’ provision of section 10851(a).” (Id. at
p. 101.) Because “no reasonable juror could have found that defendant took but
did not drive the vehicle,” the court said it was “unconcerned with whether the
jury ‘may have’ also found that defendant stole the vehicle in question.” (Ibid.)
The court noted its agreement with the reasoning of Strong, supra, 30 Cal.App.4th
366. (Cratty, supra, at pp. 102-103.) It summarized its conclusion this way:
“Thus, the jury necessarily found defendant violated the (nontheft) driving
provision of section 10851(a). His conviction under that section was not,
therefore, a conviction for theft. Thus, defendant’s dual convictions under section
10851(a) and section 496(a) are permissible and do not violate the common law
rule.” (Id. at p. 103, italics added.)
11
In this case, unlike the cases previously discussed, the Court of Appeal did
not at any point in its analysis ask whether defendant’s section 10851(a)
conviction was for the taking of the vehicle with the intent to permanently deprive
the owner of possession, and thus a theft conviction, or merely for post-theft
driving of the vehicle, and thus a nontheft conviction. Instead, the Court of
Appeal appears to have assumed, without analysis, that defendant’s section
10851(a) conviction was a theft conviction. It stated that “a jury found the
defendant guilty of auto theft, [and] receiving or retaining stolen property.” It
framed the issues as whether the “divorcement” exception (described, ante, at p. 6)
to the rule prohibiting dual convictions for theft and receiving stolen property
survived the Legislature’s 1992 amendment of section 496(a), and, if so, whether
the mere passage of time was sufficient to establish a divorcement between the
taking and the receiving of property.
On the first point, the Court of Appeal concluded that the 1992 amendment
of section 496(a) had abrogated the “complete divorcement” exception to the bar
on dual convictions. It relied on our decision in Allen, supra, 21 Cal.4th 846, as
support for this conclusion. On the second point, the Court of Appeal concluded
that even if the “complete divorcement” exception still existed, it could not be
based solely on the passage of time between the initial taking and a later act of
withholding or concealing the same property. The court construed Strong, supra,
30 Cal.App.4th 366, as holding that the mere passage of time could produce a
sufficient divorcement to justify dual convictions, and it expressly disagreed with
that holding.
The Court of Appeal was correct on one point: The “complete
divorcement” exception to the common law rule, barring dual convictions for theft
and receiving, requires more than the mere passage of time. To establish a
divorcement between the acts of theft and receiving (or concealing or
12
withholding), there must be a significant break in the defendant’s possession and
control over the stolen property. (Jaramillo, supra, 16 Cal.3d at p. 759, fn. 8.) In
other respects, however, the Court of Appeal’s analysis went seriously astray.
First, this court did not hold in Allen, supra, 21 Cal.4th 846, that the 1992
amendment of section 496(a) had abrogated the complete divorcement exception
to the bar on dual convictions for stealing and receiving the same property.
Rather, we held that the 1992 amendment had eliminated any need to prove a
complete divorcement when a defendant was being prosecuted only for receiving
and not for theft. We reasoned that the 1992 amendment, by repudiating or
abrogating the common law rule’s broad form, which barred any conviction of the
thief for receiving stolen property (whether or not the thief had actually been
convicted of theft), had made it clear that, in a prosecution for receiving alone, the
prosecution was not required to prove either that the defendant had not stolen the
property or that there was a complete divorcement between the act of theft and the
act of receiving (or withholding or concealing). (Allen, supra, at p. 858.)
Second, the Court of Appeal in Strong, supra, 30 Cal.App.4th 366, did not
rely on the complete divorcement exception to the bar on dual convictions for theft
and receiving. Instead, the Strong court concluded that the defendant’s section
10851(a) conviction was not a theft conviction, but was instead a nontheft
conviction for unlawful post-theft driving of a motor vehicle. In reaching this
conclusion, the court reasoned that the taking and the driving of a vehicle could
constitute separate and distinct violations of section 10851(a), at least where, as
there, the driving was not part of “ ‘continuous journey away from the locus of the
theft.’ ” (Strong, at p. 375.) In other words, the court reasoned that, once the
initial theft offense was no longer in progress, any post-theft driving of the vehicle
13
constituted a new violation of section 10851(a) that was separable and distinct
from the taking.2
Finally, the Court of Appeal here erred in assuming, without analysis or
explanation, that defendant’s conviction for violating section 10851(a) was a theft
conviction. As we have explained, section 10851(a) separately prohibits the acts
of driving a vehicle and taking a vehicle. (People v. Barrick, supra, 33 Cal.3d at
p. 135; Jaramillo, supra, 16 Cal.3d at p. 759, fn. 6.) Thus, a defendant who steals
a vehicle and then continues to drive it after the theft is complete commits separate
and distinct violations of section 10851(a). In Strong, supra, 30 Cal.App.4th 366,
the Court of Appeal appeared to suggest that a taking is complete when the driving
is no longer part of a “ ‘continuous journey away from the locus of the theft.’ ”
(Id. at p. 375.) One might also suggest that the taking is complete when the taker
reaches a place of temporary safety. (Cf. People v. Barnett (1998) 17 Cal.4th
1044, 1153 [discussing duration of crime of robbery].) Whatever the precise
demarcation point may be (an issue we need not decide here), once a person who
has stolen a car has passed that point, further driving of the vehicle is a separate
2
The Court of Appeal’s mistaken reading of Strong, supra, 30 Cal.App.4th
366, reveals that it conflated two somewhat similar but distinct inquiries that are
governed by different tests. The first inquiry is whether a theft is legally separate
from a later act of receiving stolen property for purposes of the common law
prohibition (now codified in section 496(a)) against dual convictions for stealing
and receiving the same property. The second inquiry is whether a taking of a
vehicle is legally separate from a driving of the same vehicle for purposes of
distinguishing separate violations of section 10851(a). The first inquiry—whether
a theft is legally separable from a later act of receiving—depends on the existence
of a “divorcement” in the sense that the stolen property leaves the thief’s
possession and control. The second inquiry—whether vehicle driving is legally
separable from vehicle taking—depends on whether the driving continues after the
taking of the vehicle is complete.
14
violation of section 10851(a) that is properly regarded as a nontheft offense for
purposes of the dual conviction prohibition of section 496(a).
As the Courts of Appeal in Strong, supra, 30 Cal.App.4th 366, and in
Cratty, supra, 77 Cal.App.4th 98, properly recognized, where, as here, a
defendant’s dual convictions for violating section 10851(a) and section 496(a)
relate to the same stolen vehicle, the crucial issue usually will be whether the
section 10851(a) conviction is for a theft or a nontheft offense. If the conviction is
for the taking of the vehicle, with the intent to permanently deprive the owner of
possession, then it is a theft conviction that bars a conviction of the same person
under section 496(a) for receiving the same vehicle as stolen property. Dual
convictions are permissible, however, if the section 10851(a) conviction is for
post-theft driving of the vehicle.
In determining here whether defendant’s section 10851(a) conviction was
for a theft or a nontheft offense, we are guided by certain principles. First, on
appeal a judgment is presumed correct, and a party attacking the judgment, or any
part of it, must affirmatively demonstrate prejudicial error. (See Denham v.
Superior Court (1970) 2 Cal.3d 557, 564.) The second principle is stated in the
California Constitution, article VI, section 13: “No judgment shall be set aside, or
new trial granted, in any cause, on the ground of misdirection of the jury, or of the
improper admission or rejection of evidence, or for any error as to any matter of
pleading, or for any error as to any matter of procedure, unless, after an
examination of the entire cause, including the evidence, the court shall be of the
opinion that the error complained of has resulted in a miscarriage of justice.”
Applying those principles here, we begin with the presumption that defendant’s
dual convictions—for unlawful taking or driving under section 10851(a) and for
receiving stolen property under section 496(a)—are valid; we will set aside either
15
or both of the convictions only if defendant has affirmatively shown prejudicial
error amounting to a miscarriage of justice.
Defendant has demonstrated that error occurred. The trial court erred in not
instructing the jury, on its own initiative, that it could not convict defendant both
for theft and for receiving the same stolen property. (Strong, supra, 30
Cal.App.4th at pp. 375-376; People v. Black (1990) 222 Cal.App.3d 523, 525; see
also United States v. Gaddis (1976) 424 U.S. 544, 550 [in appropriate cases, a trial
court must instruct “the members of the jury that they may not convict the
defendant both for robbing a bank and for receiving the proceeds of the
robbery”].) To determine whether this error caused prejudice to defendant
amounting to a miscarriage of justice, we ask whether it is reasonably probable
that a properly instructed jury would have reached a result more favorable to
defendant by not convicting him of violating both section 10851(a) and section
496(a). (See People v. Watson (1956) 46 Cal.2d 818, 836.)
At defendant’s trial, Officer Pham testified that at a strip mall parking lot he
found defendant sitting in the driver’s seat of a car that had been reported stolen
six days earlier, with the key in the ignition and the motor running. Officer Pham
found no one else in the car, nor did he see anyone else in the area who might have
driven it to that location, “right in the middle of the parking lot.” Defendant
offered no evidence attacking Officer Pham’s credibility or suggesting that any
other person might have driven the car to that place. The only reasonable
inference that a juror could draw from the evidence at trial (see p. 3, ante) was that
defendant had driven the car there before being overcome by the effects of drug
intoxication. The theft of the vehicle six days earlier was long since complete, and
the driving therefore constituted a separate, distinct, and complete violation of
section 10851(a). Under these circumstances, we conclude that it is not
reasonably probable that a properly instructed jury would have found defendant
16
guilty of violating section 10851(a) by stealing the car but not by post-theft
driving. Accordingly, we may uphold both convictions by construing defendant’s
conviction under section 10851(a) as a nontheft conviction for post-theft driving.3
This analysis is consistent with the reasoning of the Courts of Appeal in
Strong, supra, 30 Cal.App.4th 366, and in Cratty, supra, 77 Cal.App.4th 98, both of
which we discussed earlier. Although this court used a somewhat different harmless
error analysis in Jaramillo, supra, 16 Cal.3d 752, that case is distinguishable because
it was decided before the Legislature’s 1992 amendment of section 496(a) codifying
the narrow form of the common law prohibition against dual convictions for stealing
and receiving the same property, and our reasoning there may have been influenced
by the then prevailing uncertainty about the scope of the common law prohibition.
DISPOSITION
The Court of Appeal’s judgment is reversed with directions to affirm the
trial court’s judgment.
KENNARD,
J.
WE CONCUR:
GEORGE, C. J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
BROWN, J.
MORENO, J.
3
We construe the People’s defense of defendant’s conviction for receiving
stolen property as an abandonment of any claim that his conviction for violating
section 10851(a) is a theft conviction. This election may have future
consequences. For example, Penal Code section 666 increases the punishment for
petty theft when the defendant has a previous conviction for certain specified
offenses, including “auto theft under Section 10851 of the Vehicle Code.” Our
holding here may well bar future use of defendant’s section 10851(a) conviction
under this provision.
17
See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion People v. Garza
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 112 Cal.App.4th 655
Rehearing Granted
__________________________________________________________________________________
Opinion No.
S120551Date Filed: May 19, 2005
__________________________________________________________________________________
Court:
SuperiorCounty: Santa Clara
Judge: Paul R. Teilh*
__________________________________________________________________________________
Attorneys for Appellant:
Alan Siraco, under appointment by the Supreme Court, for Defendant and Appellant.__________________________________________________________________________________
Attorneys for Respondent:
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Ronald A. Bassand Gerald A. Engler, Assistant Attorneys General, Laurence K. Sullivan, John H. Deist and David H.
Rose, Deputy Attorneys General, for Plaintiff and Respondent.
*Retired judge of the Santa Clara Superior Court, assigned by the Chief Justice pursuant to article VI,
section 6 of the California Constitution.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Alan Siraco2777 Yulupa Avenue, PMB 169
Santa Rosa, CA 95405
(707) 525-8222
David H. Rose
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-5850
Opinion Information
| Date: | Docket Number: |
| Thu, 05/19/2005 | S120551 |
Parties
| 1 | The People (Plaintiff and Respondent) Represented by Attorney General - San Francisco Office 455 Golden Gate Avenue, Suite 11000 455 Golden Gate Avenue, Suite 11000 San Francisco, CA |
| 2 | The People (Plaintiff and Respondent) Represented by David H. Rose Ofc Attorney General 455 Golden Gate Ave #1100 San Francisco, CA |
| 3 | Garza, Carlos Ozuna (Defendant and Appellant) Represented by Alan Siraco PMB 169 2777 Yulupa Avenue, PMB 169 Santa Rosa, CA |
| Disposition | |
| May 19 2005 | Opinion: Reversed |
| Dockets | |
| Nov 18 2003 | Petition for review filed by (AG) counsel for resp. (People) |
| Nov 19 2003 | Record requested |
| Nov 19 2003 | Filed: by counsel for resp. certif. of word compliance |
| Nov 20 2003 | 2nd petition for review filed counsel for aplt. (Carlos Ozuna Garza) (40k) |
| Nov 21 2003 | Request for depublication (petition for review pending) by (AG) counsel for resp. (People) |
| Nov 21 2003 | Received Court of Appeal record 1-file jacket, briefs, CT-1 & RT-1 |
| Dec 3 2003 | Request for depublication filed (another request pending) counsel for aplt. |
| Jan 14 2004 | Petition for Review Granted (criminal case) Respondent's petition for Review GRANTED. Appellant's petition for review DENIED. Votes: George, CJ., Kennard, Baxter, Werdegar, Chin and Moreno, JJ. |
| Jan 28 2004 | Counsel appointment order filed Alan Siraco is hereby appointed to represent appellant on his appeal now pending in this court. Appellant's brief on the merits shall be served and filed on or before thirty (30) days from the date respondent's opening brief on the merits is filed. |
| Feb 4 2004 | Request for extension of time filed counsel for resp. (People) requests an extension of time to March 15, 2004, to file the opening brief on the merits. |
| Feb 9 2004 | Extension of time granted respondent's time to serve and file the opening brief is extended to and including March 15, 2004. |
| Feb 26 2004 | Request for extension of time filed counsel for resp. (People) requests extension of time to March 29, 2004, to file the opening brief on the merits. |
| Mar 2 2004 | Extension of time granted Respondent's time to serve and file the brief on the merits is extended to and including March 29, 2004. |
| Mar 29 2004 | Opening brief on the merits filed by counsel for respondent (People) |
| Apr 27 2004 | Request for extension of time filed counsel for aplt. (Garza) requests extension of time to May 28, 2004 to file the answer brief on the merits. |
| Apr 29 2004 | Extension of time granted Appellant's time to serve and file the answer brief on the merits is extended to and including May 28, 2004. |
| May 27 2004 | Answer brief on the merits filed by counsel for aplt. |
| Jun 16 2004 | Time for filing final brief expired; case fully briefed |
| Mar 8 2005 | Case ordered on calendar Wed. 4/6/05 @2pm - Los Angeles |
| Mar 29 2005 | Received: from counsel for aplt. (Garza) List of Additional Authorities and Req. for Permission to file less than 10 days prior to Argument. |
| Apr 6 2005 | Cause argued and submitted |
| May 19 2005 | Opinion filed: Judgment reversed with directions to affirm the trial court's judgment. Opinion by Kennard, J. --joined by George, C.J., Baxter, Werdegar, Chin, Brown, Moreno. JJ. |
| Jun 15 2005 | Compensation awarded counsel Atty Siraco |
| Jun 21 2005 | Remittitur issued (criminal case) |
| Jun 23 2005 | Received: receipt for remittitur from CA 6 |
| Briefs | |
| Mar 29 2004 | Opening brief on the merits filed |
| May 27 2004 | Answer brief on the merits filed |
