Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SF101806A
SIMS, Acting P.J.In an information filed on January 22, 2007, defendant Joshua James Selfridge was charged with unlawful driving or taking of a vehicle [count I] (Veh. Code, § 10851, subd. (a)) and with receiving stolen property in the form of a motor vehicle [count II] (Pen. Code, § 496d, subd. (a).) As to both counts, the information alleged that defendant inflicted great bodily injury (Pen. Code, § 12022.7, subd. (a).) Furthermore, as to both counts, the information alleged that defendant previously suffered a conviction for auto theft as well as a conviction within the meaning of the Three Strikes Law. (Pen. Code, §§ 666.5; 667, subd. (d); 1170.12, subd. (b).)
On March 6, 2007, defendant waived his right to a jury trial. He agreed to submission of the matter on the preliminary hearing transcript and on a single prosecution exhibit in return for a promise that his prison sentence would not exceed seven years. Defendant also agreed to waive his presentence custody credits.
That same day, the trial court found defendant guilty of both counts and found all of the enhancements true. Defendant waived his right to a probation report and agreed to be sentenced immediately.
On March 6, 2007, the court sentenced defendant to the agreed upon seven year term calculated as follows: the low term of four years on count I (Veh. Code, § 10851, subd. (a)) plus three years for the great bodily injury enhancement (Pen. Code, § 12022.7, subd. (a)). The court imposed and stayed pursuant to Penal Code section 654 the midterm of four years on count II plus the great bodily injury enhancement.
The low term of two years on count I was doubled pursuant to Penal Code sections 1170.12, subdivision (b), and 667, subdivision (d).
Defendant filed a timely notice of appeal on March 27, 2007.
No certificate of probable cause is required under Penal Code section 1237.5 to challenge a judgment of conviction by submission on the preliminary hearing transcript (“slow plea”). (People v. Cook (1971) 19 Cal.App.3d 405, 408.)
FACTS
On September 12, 2006, John Guerrero owned a 1989 Chevy Silverado pickup truck. At about 6:40 a.m., Guerrero parked his truck in front of where he worked in Stockton, in a place where he parks every day. He went to work, and when he got out of the yard, between 3:30 p.m. and 3:35 p.m., the truck was not there. From across the street, Guerrero could see broken glass where the truck had been.
Guerrero called the school district police right away on his cell phone and “made my report.”
Defendant Joshua James Selfridge did not have Guerrero’s permission to use or possess his truck.
Guerrero gave a statement to a police officer in “the main office” within half an hour of phoning the police.
On September 12, 2006, Sergeant Richard Paloma was on duty with the Stockton Unified School District (SUSD) Police Department. On that date, Sergeant Paloma heard a call of a stolen vehicle report of Guerrero’s truck.
At 5:26 p.m., Sergeant Paloma observed defendant in the stolen truck on Monroe Street behind the SUSD administration building. The license plate on the truck the sergeant observed matched the plate of the stolen truck.
The stolen truck was double-parked on Monroe Street, when the sergeant observed a female get into the truck. The truck drove away and turned right onto Park Street without stopping for the stop sign. Defendant was driving and the female was in the passenger seat.
The truck continued to Van Buren, where the truck stopped mid-block “like it was going to pull over.” The officer, who was waiting for additional units to respond, stopped behind the truck and activated his rear amber lights, in case there was any oncoming traffic. At that point, the driver of the truck quickly accelerated away and turned on to Flora Street. Once on Flora, the truck continued at about 60 miles per hour. The truck did not stop for the posted stop sign at Madison; it continued on Flora, and the sergeant observed the stolen truck collide with a white Ford F-250 pickup truck that was going southbound on Center Street.
At the scene of the accident the sergeant observed the driver of the Ford pickup, Felix Daclan, in his vehicle, conscious. Defendant was behind the wheel of the stolen truck unconscious. The female passenger was conscious and bleeding and was screaming.
On September 12, 2006, Felix Daclan was driving his work truck in Stockton. Then, “All I saw was a little white flash on my right side, and all of a sudden, I was spinning in circles . . . it just hit me real fast, you know.” “Later on, as I found out, the white truck hit me on my passenger side.”
Daclan had a broken arm, torn rotator cuff, a torn bicep that could not be repaired, problems with his left knee and abdominal pain and pain in his center back. He also suffers from headaches and ringing in his ears.
After the collision, someone helped Daclan out of his truck and helped him to the curb and sat him down.
DISCUSSION
I
Defendant first contends:
“Appellant was improperly convicted of receiving a stolen motor vehicle (count II), because the record lacked substantial evidence that his conviction for unlawfully taking or driving a motor vehicle [count I] was for unlawful driving that was separate from the taking.”
In his opening brief, defendant argues:
“The trial court determined that as to count I, appellant was guilty of ‘the unlawful taking or in our case more appropriate driving of a vehicle, it could be either, of another individual.’ (Veh. Code, § 10851, subd. (a).) The trial court also determined that as to count II, appellant was guilty of receiving a stolen motor vehicle. (Pen. Code, § 496d, subd. (a).) The trial court saw nothing improper in convicting appellant of both offenses and merely determined that appellant could only be punished for one offense. Consequently, it imposed punishment as to count I, but stayed punishment as to count two. (Pen. Code, § 654.)
“The trial court erred, because appellant’s dual convictions run afoul of the longstanding rule that a defendant cannot be convicted of receiving the same property that he stole. Consequently, the trial court’s decision to stay punishment as to count II was improper; that count should have been stricken.”
“California law does not permit a defendant to be convicted of both receiving stolen property and the theft of that same property. (Pen. Code, § 496, subd. (a); People v. Strong (1994) 30 Cal.App.4th 366, 373.) However, dual convictions are permitted in the context of a stolen vehicle case, where the record demonstrates that the defendant was convicted of post-theft driving that was separate and apart from the original taking. (People v. Strong, supra, 30 Cal.App.4th 373-375; People v. Garza (2005) 35 Cal.4th 866, 876.) As the Strong court explained, [¶] ‘[W]hat [ultimately] matters is whether the driving was part of the theft, or an independent crime. If the evidence showed only one continuous violation of [Vehicle Code] section 10851, in which the driving was part and parcel of the taking, then a conviction for driving or taking under [Vehicle Code] section 10851 is a conviction for “theft of the same property” which bars conviction under [Penal Code] section 496. If, however, the evidence showed two distinct violations of [Vehicle Code] section 10851--one taking, and one separately chargeable driving--then a conviction based on the unlawful driving is not a conviction for ‘theft of the same property’ and does not bar a conviction for receiving the same vehicle under [Penal Code] section 496. [¶] (People v. Strong, supra, 30 Cal.App.4th at pp. 373-374; accord People v. Garza, supra, 35 Cal.4th at p. 881.) [¶] Where the record lacks sufficient evidence of a ‘substantial break’ between the taking and the use of the automobile, a conviction for taking or unlawfully driving a motor vehicle cannot also be accompanied by a conviction for receiving that same motor vehicle. (People v. Kehoe (1949) 33 Cal.2d 711, 715 [since the two driving offenses were alleged to have occurred on the same day, the record did not establish a ‘substantial break’]; People v. Strong, supra, 30 Cal.App.4th at p. 375.) If the trial court makes an implied finding of fact that such a break did indeed occur, its decision should only be disturbed on appeal if it is unsupported by substantial evidence. (cf. People v. Green (1988) 200 Cal.App.3d 538, 543-544 [‘[w]hether a course of criminal conduct violating more than one penal statute is committed with a single criminal intent or with multiple criminal objectives is ordinarily a question of fact for the trial court, whose implied finding of multiple criminal intent will be upheld if supported by substantial evidence’].) ‘Substantial evidence is that which is reasonable, credible and of solid value.’ (People v. Johnson (1992) 5 Cal.App.4th 552, 558.)”
We agree with defendant’s reporting of the law but not with defendant’s application of the law to the facts of this case.
As defendant acknowledges in another section of his brief, “Appellant had already taken possession [of the stolen pickup truck] when he first came in the officer’s view, since the pickup had been under his dominion and control for at least an hour and fifty minutes.”
When the officer first observed defendant and the stolen truck, the truck was double-parked in the street. A female got into the truck. Nothing in the record suggests that the female was aiding the theft of the truck. She was neither an aider-and-abettor nor an accessory. To the contrary, from all appearances, defendant’s pick-up of the female was a social event. This social event demonstrates that the theft of the pickup truck had ended and the driving of the pickup truck for a social purpose had begun. The unlawful driving was separate from the theft or receiving of the truck.
Defendant was properly convicted of both driving a stolen motor vehicle and of receiving stolen property.
II.
Defendant next contends:
“The evidence was insufficient as a matter of law for the trial court to have concluded that appellant inflicted great bodily injury when he committed the offense of receiving a stolen motor vehicle.”
Defendant argues in his opening brief:
“C. For the enhancement to be found true, appellant’s underlying criminal conduct had to be the direct cause of the great bodily injury suffered by Mr. Daclan.
“Liability for the great bodily injury suffered by Mr. Daclan could only attach to appellant if the prosecution provided a sufficient nexus between appellant’s receipt of the stolen vehicle and Mr. Daclan’s injuries. In order to accomplish this task, the prosecution had to prove that 1) appellant personally inflicted great bodily injury on the victim and 2) that he did so, while ‘in the commission of a felony or attempted felony.’ (Pen. Code, § 12022.7, subd. (a).) As a result, the prosecutor had to show the appellant’s conduct directly caused the injuries, not just proximately caused them. (People v. Guzman (2000) 77 Cal.App.4th 761, 764.) Moreover, ‘[t]he prosecution ha[d] the burden of proving [direct] cause beyond a reasonable doubt, just as it ha[d] the burden of proving every other material element of [the enhancement].’ (People v. Armitage (1987) 194 Cal.App.3d 405, 419, fn. 19.) As appellant explains below, the prosecution failed to meet its burden.
“The evidence demonstrated that Sergeant Paloma first noticed appellant as he drove the pickup on the streets of Stockton and that the accident occurred after appellant tried to elude the officer. Since appellant had already completed the task of taking possession of the pickup when he first came to the officer’s attention, the crime of receiving a stolen motor vehicle had already been completed. (Williams v. Superior Court (1978) 81 Cal.App.3d 330, 343 [‘[t]he crime of receiving stolen property congeals and is completed upon taking possession of the property with knowledge that it is stolen’].) There is absolutely no evidence in this record that suggests that the act of taking possession of the stolen truck directly caused Mr. Daclan’s injuries. Since the prosecution failed to prove beyond a reasonable doubt that the act of receiving stolen property directly caused the injuries, the enhancement must be stricken.”
We think this is a good argument, as do the People, who concede, “Respondent agrees the great bodily injury enhancement should be stricken with respect to count II.”
We shall strike the enhancement.
DISPOSITION
The enhancement for infliction of great bodily injury appended to count II (receiving stolen property) is hereby
stricken. In all other respects, the judgment is affirmed.
We concur: ROBIE, J., BUTZ, J.