Opinion
E071321
10-02-2019
THE PEOPLE, Plaintiff and Respondent, v. DANIEL ANDREW DALTON, Defendant and Appellant.
Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. SWF1707833) OPINION APPEAL from the Superior Court of Riverside County. John M. Davis, Judge. Affirmed. Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant and appellant Daniel Andrew Dalton guilty of unlawful taking or driving of a vehicle (Veh. Code, § 10851, subd. (a), count 1), receiving a stolen vehicle (Pen. Code, § 496d, count 2), and possession of drug paraphernalia (Health & Saf. Code, § 11364, count 3). A trial court found true the allegations that he had suffered five prior prison terms (Pen. Code, § 667.5, subd. (b)) and one prior strike conviction (Pen. Code, §§ 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)). The court sentenced defendant to 11 years in prison, consisting of three years on count 1, doubled pursuant to the prior strike, plus one year on each of the five prison priors. The court stayed the sentence on count 2 pursuant to Penal Code section 654 and imposed six months on count 3, to run concurrent to count 1.
All further statutory references will be to the Penal Code, unless otherwise noted.
On appeal, defendant argues that he was improperly convicted of both unlawfully driving or taking a vehicle (Veh. Code, § 10851, subd. (a)) and receiving the same stolen vehicle (Pen. Code, § 496d, subd. (a)). We affirm.
FACTUAL BACKGROUND
On December 11, 2017, D.G. returned home at approximately 11:00 p.m. and noticed that his father's car was missing from where it was normally parked. His father (the victim) was asleep, so he woke him up to tell him. D.G. then called the police to report the car was stolen. The car was a white Toyota Corolla.
That same night, J.M. walked to a market when a car with two men in it drove up to the market and parked. The passenger in the car apparently recognized J.M., jumped out of the car, called his name, and told him to get in the car so they could "go for a drive." J.M. testified at trial that the passenger "just wanted to kick back" and "just drive around in a car." Defendant was the driver. Since J.M. was not doing anything at the time, he went with them. They drove around for about two hours, "doing drugs." Defendant and the passenger did some "speed," and J.M. drank beer. They eventually parked at a fast-food restaurant parking lot.
The police tracked the victim's stolen car by its LoJack system. A police officer spotted defendant driving the car in the parking lot. At first, defendant was backing out of a parking stall. As the officer approached, defendant pulled back into the stall. The passenger got scared when he saw the police car, so he got out of the car and ran. Defendant quickly moved to the passenger seat, crouched down, and tried to hide.
The police officer came to a stop and noticed the passenger door on the stolen car opening. He got out of his patrol car and approached the stolen car. Defendant put his feet on the ground, and the officer ordered him several times to get back in the car. Defendant ultimately complied. The officer called for backup, and he confirmed by the license plate that the car was the stolen vehicle he was looking for.
The police contacted the victim, who went to the parking lot to pick the car up. He went through the car and found keys, a phone, and shoes that did not belong to him. He removed the keys that were in the ignition and gave them to the officer. He also found several different keys for different makes of cars on the dashboard. One of the keys was labeled, "fits Toyota cars," and its ridges were bent down. At trial, an officer testified that keys can be manipulated and shaved so they can fit into a vehicle without actually belonging to that vehicle.
At trial, the prosecutor presented evidence of prior uncharged acts, including that, in 2017, defendant was arrested after being found in the driver's seat of a car that was reported stolen, with a shaved key in the ignition. In addition, the parties stipulated that defendant previously pled guilty to taking or driving a vehicle on September 27, 2014, in violation of Vehicle Code section 10851, subdivision (a), and receiving a stolen vehicle (the same truck), in violation of Penal Code section 496d.
ANALYSIS
Defendant Was Properly Convicted of Unlawfully Driving and Receiving the Same
Stolen Vehicle
Citing People v. Jaramillo (1976) 16 Cal.3d 752, 757-759 (Jaramillo), superseded by statute as explained in People v. Hinks (1997) 58 Cal.App.4th 1157, 1161, defendant contends that he was improperly convicted both of unlawful taking under Vehicle Code section 10851 and receiving stolen property under Penal Code section 496d as to the same stolen vehicle. Defendant also contends that the trial court erroneously failed to instruct the jury sua sponte that he could not be convicted of both taking and receiving the same stolen vehicle. We conclude that defendant was properly convicted of both offenses.
In People v. Garza (2005) 35 Cal.4th 866 (Garza), the Supreme Court rejected a claim similar to defendant's. In that case, a limousine disappeared from a rental company parking lot. (Id. at p. 872.) The police found the limousine six days later, with the engine running and the defendant sitting in the driver's seat. (Ibid.) He was charged with violations of Vehicle Code section 10851 and Penal Code section 496, subdivision (a). The jury found the defendant guilty as charged. (Garza, at p. 874.) The Court of Appeal "interpreted the [Vehicle Code] section 10851[, subdivision] (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." (Ibid.)
The Supreme Court reversed the Court of Appeal and held that the defendant could be convicted of both offenses. (Garza, supra, 35 Cal.4th at p. 872.) The court explained that Vehicle Code section 10851 proscribes the unlawful driving of a vehicle as separate and distinct from the act of taking a vehicle. (Garza, at p. 876.) A person who violates Vehicle Code section 10851 by taking a car cannot also be convicted of receiving the same car as stolen property. (Garza, at p. 876.) "If, on the other hand, a [Vehicle Code] section 10851[, subdivision] (a) conviction is based on posttheft driving, a separate conviction under [Penal Code] section 496[, subdivision] (a) for receiving the same vehicle as stolen property is not precluded." (Ibid., italics added.) In other words, "[d]ual convictions are permissible . . . if the [Vehicle Code] section 10851[, subdivision] (a) conviction is for posttheft driving of the vehicle." (Id. at p. 881.) The court further explained that "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)." (Id. at p. 880.) The court did not decide "the precise demarcation point" when a theft is complete. (Ibid.) However, it suggested that the taking could be complete "when the driving is no longer part of a ' "continuous journey away from the locus of the theft" ' " or when "the taker reaches a place of temporary safety." (Ibid.)
Under the rule espoused in Garza, defendant's two convictions were proper, since his Vehicle Code section 10851 conviction was based on posttheft driving. First, there was no evidence presented that defendant took the car. The victim testified that he did not see who took his car. The first time J.M. saw the car, there were two men inside. In other words, there was no evidence of who initially took the car. Furthermore, the prosecutor emphasized in her closing argument that this case was "specifically about driving." (Italics added.) She argued that the first element of count 1 was proven since defendant drove the victim's Toyota without consent. Moreover, defense counsel concurred in his closing argument that the issue in count 1 was whether defendant drove the car. He argued: "You can scratch the taking, which is the stealing because nobody has proven that at all. . . . What we're down to is did he drive it?" (Italics added.)
Second, there was overwhelming evidence that defendant engaged in posttheft driving. The evidence demonstrated that he reached a place of temporary safety when he drove to the market and parked there. He and his passenger then picked up J.M. and went for a drive for two hours. They drove around doing drugs and drinking beer. They eventually parked in a fast-food parking lot. This evidence indicates that defendant's driving was not part of a " ' "continuous journey away from the locus of the theft." ' " (See Garza, supra, 35 Cal.4th at p. 880.) Rather, he stopped at the market, drove around for two hours, and stopped again at another parking lot. Moreover, the driving was "obviously for purposes unconnected with the original taking." (People v. Malamut (1971) 16 Cal.App.3d 237, 242.) In light of the parties' agreement that the issue was whether defendant drove the car, as well as the uncontroverted evidence that he drove it and the lack of evidence that he took it, the jury must have based its conviction in count 1 on a driving theory. Therefore, dual convictions were permissible, and defendant was properly convicted of both unlawfully driving a vehicle (Veh. Code, § 10851, subd. (a)) and receiving a stolen vehicle (Pen. Code, § 496d). (Garza, supra, 35 Cal.4th at p. 881.)
Defendant relies upon Jaramillo, supra, 16 Cal.3d 752, in support of his position. However, in that case, the court was unable to determine "which combination of proscribed conduct and intent resulted in the finding of guilt." (Id. at pp. 757-758.) In other words, the court found that the evidence "would have supported a conviction based on taking, driving, or both." (People v. Strong (1994) 30 Cal.App.4th 366, 372 (Strong).) Here, by contrast, it was conclusively proven that defendant drove the stolen car, and there was no direct evidence that he took it. Defendant claims the prosecutor presented "incontrovertible evidence" that he took the car. He points to the evidence that he was found in the car hours after the theft, that the police found only him and J.M. in the car, that keys to several cars, including a shaved key that was labeled as fitting Toyotas, were found in the car, and that his wallet was recovered from the victim's backpack in the car. The most defendant claims is that this evidence "strongly suggest[s] the occupant of the car was the person who stole it." However, this evidence hardly proves that he was guilty of stealing the car.
Defendant additionally argues that the court erred in failing to give a sua sponte instruction that he could not be convicted of both taking the car and receiving the stolen car. (See People v. Black (1990) 222 Cal.App.3d 523, 525.) However, any error was harmless. In Strong, supra, 30 Cal.App.4th 366, the defendant was arrested while driving a stolen pickup truck, and he was convicted of both receiving stolen property and violating Vehicle Code section 10851, subdivision (a). This court stated that the evidence at trial conclusively proved the defendant had driven the pickup. (Strong, at p. 372.) We noted that, although there was also substantial evidence that the 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, 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 p. 374.) We concluded that the defendant's conviction based on the posttheft driving was not a theft conviction and therefore did not bar a conviction for receiving the pickup as stolen property. (Id. at p. 375.)
In Strong, we 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.) However, 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.) We affirmed the dual convictions for violating Vehicle Code section 10851 and receiving stolen property. (Strong, at p. 377.)
Here, as in Strong, the evidence at trial conclusively proved that defendant drove the car. Although the facts are distinguishable from Strong, since the defendant in that case was found driving the car four days after it was stolen, the evidence here still demonstrated that defendant drove the car. Moreover, unlike Strong, there was no substantial evidence that defendant had taken the car. (See ante.) In view of the evidence presented here and the arguments by both parties that the issue was whether defendant drove the car, no reasonable juror would have found defendant guilty of Vehicle Code section 10851, based on him taking the car. Thus, even if the jury had been properly instructed, "it could and would have entered the same verdict." (Strong, supra, 30 Cal.App.4th at p. 376.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. We concur: CODRINGTON
J. SLOUGH
J.