Opinion
C082357
05-15-2018
THE PEOPLE, Plaintiff and Respondent, v. ROCHELLE LEE LACY, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CRF160240) OPINION ON TRANSFER
A jury convicted defendant Rochelle Lee Lacy of unlawfully taking or driving a vehicle (Veh. Code, § 10851), receiving a stolen vehicle (Pen. Code, § 496d, subd. (a)), and felony identity theft (§ 530.5, subd. (a)), and in a bifurcated proceeding, sustained a strike allegation (§ 667, subds. (c), (e)(1)). The trial court sentenced defendant to a six- year state prison term, consecutive to a one-year term for a subordinate offense from another case.
Undesignated statutory references are to the Penal Code.
On appeal, defendant contends she cannot be convicted of both stealing and receiving the same vehicle, her conviction for receiving a stolen vehicle should be reduced to a misdemeanor in light of Proposition 47, the Safe Neighborhood and Schools Act, and her felony sentence for unlawfully taking or driving a vehicle was unauthorized in light of Proposition 47. The Attorney General identifies errors in the abstract.
In a previous opinion, we struck the receiving conviction, affirmed the remaining convictions, and ordered corrections to the abstract. (People v. Lacy (July 10, 2017, C082357) [nonpub. opn.].) In this opinion, at the direction of the California Supreme Court, we reconsider the Vehicle Code section 10851 conviction in light of People v. Page (2017) 3 Cal.5th 1175 (Page). Applying Page, we shall reduce defendant's Vehicle Code section 10851 conviction to petty theft (§ 490.2) and remand for resentencing.
BACKGROUND
On January 10, 2016, Terry C. parked his motor home in a strip mall parking lot. His 2003 Ford pickup truck was parked next to the motor home. He moved the motor home to a camping area each night.
Terry C. bought the truck from his brother for $700 in November 2015.
Defendant, an acquaintance of Terry C., came by to visit and use his computer. After Terry C. told her to stop using the computer, defendant left the motor home, and walked to a nearby store. About 20 minutes later, defendant returned to the motor home, retrieved her belongings, and left. Terry C. soon noticed that the keys to his truck were missing. Before leaving for the night, Terry C. let the air out of his truck's right front tire to keep it from being stolen. The truck was gone when Terry C. returned to the parking lot the next morning.
Terry C. reported the truck as stolen; Suisun City Police Officer James Sousa was dispatched to investigate. Terry C. told Officer Sousa that defendant may have stolen the truck. Officer Sousa called defendant, who denied stealing or possessing the truck. Asked why Terry C. would accuse her of the theft, defendant replied that she had resisted his sexual advances one day ago.
On January 12, 2016, around 10:30 a.m., Officer Richard Wright was dispatched to investigate a report of a person rummaging through garbage cans left out for pick up. Officer Wright found defendant sitting alone in Terry C.'s truck. Defendant showed Officer Wright a purported bill of sale for the truck from Terry C. that was dated January 12, 2016. Defendant explained that she bought the truck from Terry C. and prepared the document, which Terry C. signed in two places to complete the transaction.
Terry C. denied selling the truck to defendant. He never signed the bill of sale, which had his name misspelled.
DISCUSSION
I
Defendant contends that she cannot be convicted of both stealing and receiving the same truck under these facts. The Attorney General concedes the point. We accept the concession.
Section 496, subdivision (a) provides, in relevant part: "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." Defendant was convicted of violating section 496d, which specifically refers to vehicles, and does not restate the above language barring dual conviction. Nevertheless, this principle is well settled in case law and applies here.
In People v. Garza (2005) 35 Cal.4th 866, 871 (Garza), our Supreme Court reaffirmed that common law prohibits separate convictions of the same person for stealing and receiving the same property. When the violation of Vehicle Code section 10851 and receiving stolen property is based specifically on the act of taking the vehicle, the general prohibition of dual conviction for theft and receiving applies. (Garza, at p. 881.)
An exception to this rule exists where there are two distinct violations of Vehicle Code section 10851, one unlawful taking and a separate unlawful driving, then a conviction based on unlawful driving is not a conviction for theft and does not bar a conviction for receiving the same vehicle. (Garza, supra, 35 Cal.4th at p. 881.) The facts of this case do not support applying the exception. There is no evidence defendant drove the truck separately from any driving she did to steal it. The trial court did not instruct the jury with the instruction that defendant could not be convicted of receiving and stealing the same vehicle, CALCRIM No. 3515. The prosecutor proceeded on the theory that defendant stole the truck, arguing "defendant took a vehicle without the owner's consent intending to deprive the owner of possession for any period of time," and that the receiving charge was an "alternative" to the Vehicle Code section 10851 charge.
Accordingly, we shall reverse the receiving conviction.
Since we are reversing the receiving conviction, it is unnecessary to consider defendant's claim that the felony conviction for receiving should be reduced to a misdemeanor under Proposition 47. --------
II
As pertinent to this case, Proposition 47 added section 490.2, which states in pertinent part: "Notwithstanding Section 487 or any other provision of law defining grand theft, obtaining any property by theft where the value of the money, labor, real or personal property taken does not exceed nine hundred fifty dollars ($950) shall be considered petty theft and shall be punished as a misdemeanor. . . ." (§ 490.2, subd. (a).) Defendant asserts that Vehicle Code section 10851, unlawfully taking or driving a vehicle, is a theft offense subject to section 490.2.
Section 1170.18, subdivision (a) provides: "A person who, on November 5, 2014, was serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under the act that added this section ('this act') had this act been in effect at the time of the offense may petition for a recall of sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing . . . ."
In Page, the Supreme Court held that Vehicle Code section 10851 convictions "are not categorically ineligible for resentencing" under section 1170.18. (Page, supra, 3 Cal.5th at p. 1189.) Accordingly, "obtaining an automobile worth $ 950 or less by theft constitutes petty theft under section 490.2 and is punishable only as a misdemeanor, regardless of the statutory section under which the theft was charged." (Id. at p. 1187.) However, a defendant convicted under Vehicle Code section 10851 for nontheft activity can be subject to felony punishment even if the vehicle is worth $950 or less. (Id. at p. 1188.)
Defendant contends her Vehicle Code section 10851 conviction should be reduced to petty theft. We agree.
Since defendant was prosecuted solely under a theory of vehicle theft and the evidence supports only that theory, there is insufficient evidence to support the Vehicle Code section 10851 conviction since there is no evidence that the stolen truck's value exceeds $950. In the interest of judicial economy, an appellate court can modify a judgment of conviction to a lesser-included offense. (People v. Matian (1995) 35 Cal.App.4th 480, 487; § 1181, subd. (6).) We shall modify the conviction to petty theft under section 490.2. Since the vehicle theft conviction was the principal term, a remand for resentencing is necessary.
III
During the initial briefing in this appeal, the Attorney General correctly pointed out two errors in the abstract regarding the term for the vehicle theft conviction and for the presentence credits. Since we are remanding for resentencing, those errors are mooted.
DISPOSITION
The conviction for receiving a stolen vehicle (§ 496d) is reversed, and the conviction for vehicle theft (Veh. Code, § 10851) is modified to petty theft (§ 490.2) and the matter is remanded for resentencing. In all other respects, the judgment is affirmed.
/s/_________
Blease, Acting P. J. We concur: /s/_________
Hull, J. /s/_________
Butz, J.