Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. BF115197A, Michael G. Bush, Judge.
Allan E. Junker, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Charles A. French, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CORNELL, J.
A jury convicted William Greg Roberts of vehicle theft (Veh. Code, § 10851, subd. (a)), receiving stolen property (Pen. Code, § 496d), and possession of burglary tools (§ 466). He argues the convictions were not supported by substantial evidence, that he could not be convicted of stealing and receiving the same vehicle, and his sentence violated his Sixth Amendment right to a jury trial.
All further statutory references are to the Penal Code unless otherwise stated.
We conclude the conviction for receiving stolen property must be vacated, but otherwise affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
Jorge Luis Rodriguez Ortega arrived home about midnight on June 25, 2006. He parked his car in front of his apartment and locked it before going into his apartment. Around noon of the next day, Ortega discovered his car had been stolen.
Ortega was returning home from work two days later when he saw his stolen car parked on the street in front of an apartment complex. Ortega called the sherriff’s office to report the sighting. While on the phone, Ortega saw his stolen car being driven away. He saw a thin white male with short light-colored hair wearing a white tank top driving the vehicle. Ortega followed his stolen vehicle. The man driving the stolen car parked on the street a short while later. As the man left the vehicle, Ortega observed tattoos.
Ortega gave the sheriff’s office the new location of his car and waited for a deputy sheriff to arrive. When the deputy sheriff arrived, Ortega described the man whom he had seen driving his stolen car. The deputy sheriff left the area and returned a short while later with a man Ortega identified as the person whom he had seen driving his stolen car.
When Ortega retrieved his car, he noted the ignition was broken. The ignition was not broken before the vehicle was stolen. He also found a screwdriver in the car that was not there before it was stolen.
At the preliminary hearing, Ortega testified that Roberts resembled the man whom he saw driving his vehicle after it was stolen.
Deputy Sheriff Edward Holland was dispatched to meet Ortega on the date in question. Ortega pointed out the stolen vehicle and said the driver had proceeded south towards some residences. Holland obtained a description of the driver from Ortega and then checked the area in an attempt to locate the driver. A short while later Holland observed Roberts approach the driver’s door of the stolen car. Roberts looked up, apparently saw Holland, and walked eastbound away from the vehicle. Holland detained Roberts because he matched the description provided by Ortega. Holland searched Roberts and found a screwdriver in his pants pocket.
Holland testified that a screwdriver can be used to break into cars and to start cars when a key is not available, such as when someone is trying to steal a car. The stolen vehicle’s ignition had been altered so that it could be started with a screwdriver. Holland also identified photographs of Roberts depicting tattoos on his arms and chest area.
Evidence technician Nicole Townsend checked the stolen vehicle for fingerprints. She found several fingerprints, none of which matched Roberts’s.
Investigator Paul Lambert photographed the stolen vehicle. While there, Ortega showed him the screwdriver he found in his car. Lambert tested the screwdriver and concluded it could be used to start the vehicle.
Roberts was charged with (1) unlawfully driving or taking a vehicle, in violation of Vehicle Code section 10851, subdivision (a); (2) buying or receiving a stolen vehicle, in violation of section 496d; and (3) misdemeanor possession of burglary tools, in violation of section 466. The information also alleged in the two felony counts that Roberts (1) had a prior conviction that constituted a strike within the meaning of section 667, subdivisions (b) through (i), and (2) had served two prior prison terms within the meaning of section 667.5, subdivision (b).
The jury found Roberts guilty as charged. Roberts waived his right to a jury trial and admitted each of the prior conviction enhancements. The trial court, relying mainly on his prior record, sentenced him to an aggravated term of six years on the unlawful taking count, enhanced by one year each for the section 667.5, subdivision (b) enhancements, for a total commitment of eight years. The sentence on the buying or receiving a stolen vehicle count was stayed pursuant to section 654. Finally, the trial court imposed a sentence of 120 days in jail for the misdemeanor count, to be served concurrently with the prison sentence.
DISCUSSION
I. The Sentence
Roberts urges us to hold that the Sixth Amendment requires the fact of a prior conviction be proven to a jury using the beyond-a-reasonable-doubt standard before it may be used to impose an aggravated sentence. We will not. The current state of the law is clear. Apprendi, Blakely, Booker, and Cunningham, have all recognized that a judge may utilize the fact of a prior conviction to enhance a defendant’s sentence without submitting the issue to a jury.
Apprendi v. New Jersey (2000) 530 U.S. 466, 490.
Blakely v. Washington (2004) 542 U.S. 296, 301.
United States v. Booker (2005) 543 U.S. 220, 231.
Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856, 868].
Moreover, Roberts waived his right to a jury trial on the question of whether he had a prior conviction that constituted a strike and whether he had served two prior prison terms as a result of prior convictions. These allegations were intended to increase his sentence. He cannot now complain that he was entitled to a jury trial on the issue of his prior convictions. (DiPirro v. Bondo Corp. (2007) 153 Cal.App.4th 150, 178 & fn. 18.)
In addition, the California Supreme Court recently reaffirmed that the Sixth Amendment right to a jury trial does not apply to the fact of a prior conviction. (People v. Black (2007) 41 Cal.4th 799.) We are bound by this decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Finally, the California Supreme Court also held in Black that “as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional factfinding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial.” (People v. Black, supra, 41 Cal.4th at p. 812.) Since Roberts’s prior convictions were established consistent with Apprendi, the trial court’s additional finding that Roberts performed poorly on parole was not required to be presented to a jury.
For each of these reasons, the trial court did not err in sentencing Roberts to an aggravated term.
II. Receiving Stolen Property
Roberts argues, and the People concede, that his conviction for receiving stolen property must be reversed because a defendant may not be convicted of stealing and receiving the same property. The case of People v. Jaramillo (1976) 16 Cal.3d 752 and section 496 provide that no person may be convicted of auto theft and receiving stolen property involving the same auto.
Vehicle Code section 10851, subdivision (a), however, criminalizes both the driving of a vehicle without the permission of the owner as well as the theft of the vehicle. The cases of People v. Garza (2005) 35 Cal.4th 866, People v. Allen (1999) 21 Cal.4th 846, People v. Cratty (1999) 77 Cal.App.4th 98, and People v. Strong (1994) 30 Cal.App.4th 366 establish that a defendant may be convicted of both receiving stolen property (the vehicle) and violating Vehicle Code section 10851, subdivision (a), only if the defendant was found guilty of driving the vehicle without the permission of the owner. The distinction established in these cases (and numerous others) is that driving a stolen vehicle is not a theft offense and thus not subject to the bar of section 496, while theft of the vehicle is, obviously, a theft offense and subject to the statutory bar.
Garza, Cratty, and Strong concluded that where there was convincing evidence the defendant drove the stolen vehicle, and the Vehicle Code section 10851 count was not prosecuted exclusively on the theory that defendant stole the vehicle, the judgment of receiving stolen property and violating Vehicle Code section 10851 can be affirmed as, at most, harmless error. The “crucial” issue in those cases was “whether the [Vehicle Code] section 10851(a) conviction [was] for a theft or a nontheft offense.” (People v. Garza, supra, 35 Cal.4th at p. 881.)
Here, the People’s theory was that Roberts not only stole the vehicle, but also that he was guilty of driving the vehicle without the permission of the owner. The trial court instructed the jury, sua sponte, that it could not convict Roberts of receiving stolen property and violating Vehicle Code section 10851 if it found he stole the vehicle, but it could convict Roberts of both offenses if it found he was driving the vehicle without the owner’s permission.
The People concede the conviction must be reversed, however, because the verdict form returned by the jury found Roberts guilty of “[Taking the] Vehicle Without [the] Owner’s Consent.” The verdict form did not refer to driving a vehicle without the owner’s consent. We must conclude, therefore, that Roberts’s conviction for violating Vehicle Code section 10851, subdivision (a) was for the theft of the vehicle. His conviction for receiving stolen property (section 496) therefore must be reversed. Since the sentence for receiving stolen property was stayed pursuant to section 654, there is no need to remand the matter for resentencing.
III. Sufficiency of the Evidence
Roberts argues that neither his conviction for stealing the vehicle nor his conviction for possession of burglary tools was supported by sufficient evidence.
Our review of the sufficiency of the evidence is deferential. We “‘review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence -- that is, evidence which is reasonable, credible, and of solid value -- such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.]” (People v. Hillhouse (2002) 27 Cal.4th 469, 496; People v. Superior Court (Jones) (1998) 18 Cal.4th 667, 681.) We focus on the whole record, not isolated bits of evidence. (People v. Slaughter (2002) 27 Cal.4th 1187, 1203.) We presume the existence of every fact the trier of fact reasonably could deduce from the evidence that supports the judgment. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) We will not substitute our evaluations of a witness’s credibility for that of the trier of fact. (People v. Koontz (2002) 27 Cal.4th 1041, 1078.)
“The standard of review is the same in cases in which the People rely mainly on circumstantial evidence. [Citation.] ‘Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant’s guilt beyond a reasonable doubt. “‘If the circumstances reasonable justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.’” [Citations.]’ [Citation.] ‘“Circumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt.”’ [Citations.]” (People v. Stanley (1995)10 Cal.4th 764, 792-793.)
A. Vehicle theft
Roberts argues that his conviction for theft of the vehicle was not supported by substantial evidence because the only evidence adduced at trial was that he was found driving it two days after it was stolen. This argument misperceives our role. We review the record in a light most favorable to the judgment to determine if credible evidence could lead a reasonable juror to find the defendant guilty beyond a reasonable doubt.
There was credible evidence that Roberts stole the vehicle because he was driving it two days after it was stolen, and he was carrying a screwdriver with him when he was arrested. The screwdriver was the type of tool used to steal the vehicle in the first place. A reasonable juror could infer from these facts that Roberts stole the vehicle. This was evidence substantial enough to support the judgment.
The cases cited by Roberts do not require a different conclusion. As pertinent here, People v. McFarland (1962) 58 Cal.2d 748 stands for the proposition that “Possession of recently stolen property is so incriminating that to warrant conviction there need only be, in addition to possession, slight corroboration in the form of statements or conduct of the defendant tending to show his guilt.” (Id. at p. 754.) The Supreme Court found the defendant’s statements sufficient to corroborate his guilt. (Id. at pp. 758-759.)
In People v. Malamut (1971) 16 Cal.App.3d 237, similar to this case, the defendant argued the evidence was insufficient to support his conviction for vehicle theft because the only evidence of guilt was his possession of a vehicle that had been stolen two months before. The appellate court reiterated the rule that only slight additional evidence is necessary to sustain a conviction when the defendant is in possession of recently stolen goods. (Id. at p. 241.) The court concluded the following evidence was sufficient: (1) The defendant gave an obviously false statement to the police to explain his possession of the stolen vehicle; (2) the license plates and motor had been changed since the vehicle was stolen; (3) the serial numbers had been altered; and (4) the defendant possessed forged documents of title. (Ibid.)
Here the facts are different, but still sufficient to support the conviction. Roberts was found driving the vehicle two days after it was stolen. He was in possession of a screwdriver, the type of tool used to steal the vehicle, and the circumstances failed to suggest an innocent reason for carrying the tool. While not overwhelming evidence, it was substantial evidence pursuant to our limited review.
B. Possession of burglary tools
Roberts also challenges the evidence supporting his conviction for possession of burglary tools. Section 466 makes criminal the possession of a screwdriver if it is possessed with “intent feloniously to break or enter into any building … or vehicle.” Roberts argues that he did not need the screwdriver to enter the stolen vehicle and therefore this conviction cannot stand. In other words, he did not need the screwdriver to gain access to the stolen vehicle because it was no longer locked.
Roberts views the facts far too narrowly. While it is true that he did not need the screwdriver to gain access to the stolen vehicle, the jury could well have inferred, based on his possession of the screwdriver and his driving a stolen vehicle, that he possessed the screwdriver to break into another vehicle. The crime was not limited to entry into the stolen vehicle. This is a reasonable inference the jury could have drawn, and one we will not disturb on appeal.
The prosecution argued that Roberts possessed the screwdriver to use with the stolen vehicle. The jury was not limited to the prosecution’s interpretation of the evidence.
DISPOSITION
The judgment is affirmed.
WE CONCUR: VARTABEDIAN, Acting P.J. DAWSON, J.