Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FSB704685, Arthur Harrison, Judge. Affirmed in part as modified; reversed in part.
John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Ronald A. Jakob and Raymond M. DiGuiseppe, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HOLLENHORST, Acting P. J.
I. INTRODUCTION
Defendant Jerald L. Belton appeals from his conviction of unlawfully driving or taking a vehicle with a prior (Veh. Code, § 10851, subd. (a), Pen. Code, § 666.5, subd. (a), count 1), receiving stolen property with a prior (§§ 496d, subd. (a), 666.5, subd. (a), count 2), and resisting a peace officer (§ 148, subd. (a)(1), count 3), with enhancements for two prison prior convictions (§ 667.5, subd. (b)). Defendant contends his conviction for receiving stolen property violates the rule against dual convictions for taking and receiving the same property. In the alternative, he contends the trial court erred in failing to instruct the jury sua sponte that it could not convict him of both theft and receiving stolen property. He next contends the trial court improperly made dual use of facts in imposing the upper term on count 1 or, in the alternative, using an element of the crime as the basis for the upper term. Finally, he contends the trial court erred in calculating presentence custody credits. The People concede error in the calculation of custody credits, and we accept that concession. We also conclude the trial court erred in failing to instruct the jury as to the rule precluding dual convictions, and we will therefore reverse defendant’s conviction for receiving stolen property. In all other respects, we will affirm the judgment.
All further statutory references are to the Penal Code unless otherwise noted.
II. FACTS AND PROCEDURAL BACKGROUND
The registered owner of a 1989 white Chevrolet Celebrity testified that her car had been parked on the street about 4:30 p.m. on October 16, 2007. Approximately 7:30 the next morning, she learned the car was missing. She had not given defendant permission to take or drive the car.
About 6:00 a.m. on October 17, 2007, Officer Steve Carrizales responded to a report of an unspecified crime at a bakery in San Bernardino. At the bakery, Officer Carrizales viewed a surveillance videotape, which showed a 1989 white Chevrolet Celebrity that appeared to have been involved in the crime. Only one person, a man wearing a black hooded sweatshirt over a red T-shirt, could be seen on the videotape.
As the trial court informed the jury, defendant was not charged with any crime in connection with the incident at the bakery, and the trial court excluded evidence related to that incident.
Officer Carrizales patrolled the area of the bakery, and at 7:16 a.m., he saw a car that appeared similar to the one in the videotape. Officer Carrizales followed the car, which was occupied by two men, into the parking lot of an apartment complex. Officer Carrizales attempted to detain the two men at gunpoint, and he ordered them to stay in the car. However, the driver, defendant, stepped out of the car holding something Officer Carrizales later determined to have been pliers. Defendant advanced toward the officer, who ordered him to lie on the ground. Defendant did not comply but continued moving forward and used profanity toward the officer. Officer Carrizales grabbed defendant and forced him to the ground. The officer handcuffed defendant and ordered him to get up, but defendant instead went limp. The passenger in the car was wearing a black hooded sweatshirt over a red T-shirt.
In custody, defendant denied he had been the driver of the car; he claimed an acquaintance named “Kevin” or “Ken” had picked him up in the Chevrolet earlier that morning. Defendant also said he had picked Kevin or Ken up that morning. He denied any involvement in the incident at the bakery, and he claimed the car belonged to his acquaintance.
A detective testified that the steering column of the car had been damaged in such a way that suggested it had been stolen. A tool would have been required to cause that damage.
At trial, defendant’s theory was that the police conspired to set him up in retaliation for the dismissal of a prior, unrelated criminal case, also involving Officer Carrizales. On appeal, defendant does not raise any issue relating to that theory, and the evidence concerning that theory has therefore been omitted from the statement of facts.
The jury found defendant guilty of unlawfully driving or taking a vehicle (Veh. Code, § 10851, subd. (a), count 1), receiving stolen property (Pen. Code, § 496d, subd. (a), count 2), and resisting a peace officer (Pen. Code, § 148, subd. (a)(1), count 3) and found true allegations as to counts 1 and 2 that defendant had previously been convicted of unlawfully taking or driving a vehicle (Pen. Code, § 666.5, subd. (a)) and that defendant had incurred four prison prior convictions (Pen. Code, § 667.5, subd. (b)).
The trial court sentenced defendant to the upper term of four years for count 1 and stayed the sentence for count 2 under section 654. The court imposed a one-year enhancement for each of two prior prison terms and stayed sentence on two other prior prison terms under section 654. For count 3, the court imposed a sentence of 180 days in jail.
Additional facts are set forth in the discussion of the issues to which they relate.
III. DISCUSSION
A. Dual Convictions
Defendant contends his convictions of violations of both Vehicle Code section 10851 and Penal Code section 496d contravene the rule against dual convictions for taking and receiving the same property as a matter of law. Specifically, he argues that when there is any evidence that the defendant was the thief, a conviction for receiving is precluded. He contends, in the alternative, that the trial court erred in failing to instruct the jury on the rule precluding dual convictions.
1.Validity of Dual Convictions
It is a “fundamental principle that one may not be convicted of stealing and of receiving the same property. [Citations.]” (People v. Jaramillo (1976) 16 Cal.3d 752, 757, superseded by statute as stated in People v. Strong (1994) 30 Cal.App.4th 366, 371-372 [Fourth Dist., Div. Two].) In Jaramillo, the jury found the defendant guilty of a violation of Vehicle Code section 10851 and also of receiving the same vehicle as stolen property in violation of Penal Code section 496. (People v. Jaramillo, supra, at p. 757.) The court stated that both convictions could not stand: “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. [Citation.]” (Id. at p. 759, fn. omitted.)
In 1992, the Legislature amended Penal Code section 496 to add the following language: “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.” (Stats. 1992, ch. 1146, § 1, p. 5374.) In People v. Allen (1999) 21 Cal.4th 846, the court explained that under the 1992 amendment, a conviction for receiving stolen property could stand even if the evidence showed beyond a reasonable doubt that the defendant was a thief, so long as the defendant was not actually convicted of the theft. (Id. at p. 857.)
In 1998, the Legislature enacted section 496d (Stats. 1998, ch. 710, § 1), which applies specifically to the receipt of stolen vehicles. Section 496d, subdivision (a) provides for punishment for “[e]very person who buys or receives any motor vehicle... that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be stolen or obtained....” However, the language the Legislature added to section 496 in 1992 providing that “[a] principal in the actual theft of the property may be convicted pursuant to this section” so long as he is not also convicted of the theft of the same property, was not included in section 496d.
The Supreme Court revisited the issue of dual convictions in People v. Garza (2005) 35 Cal.4th 866 (Garza), again addressing the interplay of Vehicle Code section 10851 and Penal Code section 496. The court noted that one form of violating Vehicle Code section 10851 (unlawful taking of a vehicle with intent to permanently deprive the owner of possession) is a theft offense to which the dual conviction prohibition applies, but the other form (unlawful driving of a vehicle) is not. (Garza, supra, at p. 871.)
In Garza, the court recognized that for the defendant to be convicted of both theft and receiving the same stolen property, evidence of a “complete divorcement” between the theft and the receiving was required, such as “‘when the thief has disposed of the property and subsequently receives it back in a transaction separate from the original theft.’ [Citation.]” (Garza, supra, 35 Cal.4th at pp. 874-875.) The court further noted: “[A] defendant who steals a vehicle and then continues to drive it after the theft is complete commits separate and distinct violations of [Vehicle Code] section 10851[, subdivision] (a).” The court, however, declined to establish any “precise demarcation point” for determining when a “complete divorcement” arises (id. at pp. 880-881), but upheld the defendant’s dual convictions when six days had elapsed between the theft of the car and his arrest while driving the car. Similarly, in People v. Strong, supra, 30 Cal.App.4th 366, the court upheld dual convictions when the defendant was arrested while driving the car four days after it had been stolen. (Id. at p. 375.)
Because one form of violating Vehicle Code section 10851, subdivision (a), is a theft subject to the dual conviction prohibition and one form is not, the trial court must sua sponte instruct the jury that if it convicts a defendant of unlawfully taking a vehicle or driving the vehicle as part of the original taking, it cannot also convict him of receiving the vehicle. (Garza, supra, 35 Cal.4th at pp. 878, 881; People v. Strong, supra, 30 Cal.App.4th at p. 376.)
Defendant contends that the amendment to section 496 did not apply to section 496d, and “[u]nder the broadest interpretation of the common law, any evidence showing [he] was the thief would preclude a conviction for receiving.” Whether we base our conclusion on that contention, on an application of the principles of Garza, or on defendant’s contention of instructional error, the outcome must be the same: defendant’s dual convictions may not stand under the facts of this case.
Here, the information alleged that defendant unlawfully drove or took the vehicle and received the same stolen vehicle on the same date—October 17, 2007. About 6:00 a.m. that day, Officer Carrizales viewed a surveillance videotape of an incident at a bakery, but it was not shown when the events portrayed on the videotape had taken place. Moreover, the videotape showed only the passenger in the car, not defendant.
Defendant was holding a pair of pliers in his hand when he exited the Chevrolet sometime after 7:16 a.m. on October 17. The steering column of the Chevrolet had been broken, and the ignition and turn signal were damaged. An officer testified that a common method of stealing a car involves taking off the steering column and using a tool to bypass the ignition.
Moreover, contrary to the People’s assertion, there was no evidence of any significant passage of time to establish a complete divorcement between the taking and the receiving of stolen property. (See, e.g., Garza, supra, 35 Cal.4th at p. 882 [six days elapsed between theft and driving offenses].) While the evidence might have supported an inference of a complete divorcement between the taking and the driving, the evidence was certainly not so compelling as to exclude the possibility of a contrary finding had the jury been properly instructed. We must therefore reverse defendant’s conviction for receiving stolen property.
B. Imposition of Upper Term
Defendant contends the trial court impermissibly made dual use of facts when it imposed the upper term for count 1 and separately imposed a one-year enhancement for each of two prison term priors under section 667.5, subdivision (b). In the alternative, he contends the trial court impermissibly based the upper term on an element of the crime because his prior conviction was an element of count 1.
1. Additional Background
Defendant’s probation report reflects that he was 26 years old at the time of sentencing. He had suffered several juvenile adjudications and had been committed to the California Youth Authority (CYA), where he spent approximately three years before being paroled in September 2002. In November 2003 he was convicted of violations of Vehicle Code section 10851, subdivision (a) and Penal Code section 496, subdivision (a); the probation report showed those offenses had been committed on May 22, 2003, while defendant was still on parole from CYA. In December 2003, and again in February 2006, he was convicted of second degree burglary (Pen. Code, § 459.) The probation report showed defendant was on parole when he committed the second burglary, and he was on parole when he committed the current offenses.
At sentencing, the trial court stated: “The Court’s reviewed—has reviewed the probation report noting a lengthy criminal history by a defendant as young as the defendant. The Court is going to find that criminal history is lengthy and of increasing seriousness. The Court is relying on just the convictions and history as to state prison, but that he returns to state prison over and over and over again on yet a single conviction on parole violations.” The court then gave its reasons for imposing the upper term of four years for count 1: “Four years is appropriate based upon the clear-cut recidivism conduct that the defendant has engaged in in the past. And including the convictions and the repeated going to state prison,... each conviction seems to be accompanied by a number of violations of parole and return to parole custody for that reason.”
2. Analysis
The trial court’s remarks at sentencing make clear that the trial court did not base its decision solely upon defendant’s prior convictions. Rather, the trial court also relied heavily on defendant’s repeated violations of parole. Poor performance on parole is a valid aggravating factor on which the trial court could rely in imposing the upper term (Cal. Rules of Court, rule 4.421(b)(5)) and is a factor distinct from the fact of prior convictions. (People v. Yim (2007) 152 Cal.App.4th 366, 369.) Here, the fact of defendant’s poor performance was established “‘by reference to “court records” pertaining to [his] prior convictions, sentences and paroles. The mere recitation of his dates of conviction and releases on parole [citation] demonstrate[s], as a matter of law, that he committed new offenses while on parole.’ [Citation.]” (People v. Towne (2008) 44 Cal.4th 63, 82.) Thus, the right to a jury trial on the aggravating circumstance of poor performance on probation or parole did not apply. (Ibid.)
It is well established that a single valid aggravating factor may support the imposition of the upper term. (People v. Towne, supra, 44 Cal.4th at p. 75.) Because the factor of repeated parole violations independently supported the trial court’s sentencing decision to impose the upper term, we conclude that decision was not based on an impermissible dual use of facts. Similarly, even if we accept for purposes of argument that a prior conviction was an element of count 1, the upper term was independently justified based on defendant’s poor performance on parole.
C. Custody Credits
Defendant had been in custody for 447 days at the time of sentencing. In calculating his custody credits, the trial court deducted 180 days from that total, apparently based on the 180-day jail term the court imposed for defendant’s misdemeanor conviction of resisting a peace officer in count 3. Defendant contends, and the People concede, that the trial court erred in calculating defendant’s presentence custody credits. A defendant is entitled to credit against his sentence for all days spent in jail attributable to the proceedings as well as to appropriate conduct credits. (§§ 2900.5, subds. (a), (b), 4019, subd. (b); People v. Bruner (1995) 9 Cal.4th 1178, 1180; People v. Dieck (2009) 46 Cal.4th 934, 940) Here, defendant was entitled to 447 days of actual custody credits and 222 days of conduct credits, for a total of 669 days. (See People v. Culp (2002) 100 Cal.App.4th 1278, 1283.)
IV. DISPOSITION
Defendant’s conviction of receiving stolen property (§ 496d) is reversed. In addition, the trial court is directed to order the abstract of judgment amended to reflect the correct total of presentence custody credits. The amended abstract of judgment shall be forwarded to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: GAUT J., KING J.