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In re Irwin G.

California Court of Appeals, Fourth District, First Division
Mar 10, 2008
No. D050549 (Cal. Ct. App. Mar. 10, 2008)

Opinion


In re IRWIN G., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. IRWIN G., Defendant and Appellant. D050549 California Court of Appeal, Fourth District, First Division March 10, 2008

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of San Diego County No. J213749, Amalia L. Meza, Judge and J. Charles Wickersham, Retired Judge of the San Diego Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

BENKE, Acting P. J.

The juvenile court sustained a delinquency petition alleging 13-year-old Irwin G. unlawfully took a vehicle (Veh. Code, § 10851, subd. (a)), received a stolen vehicle (Pen. Code, § 496d, resisted arrest (Pen. Code, § 148, subd. (a)(1)), and possessed burglary tools (Pen. Code, § 466). Subsequently, the court declared Irwin a ward (Welf. & Inst. Code, § 602) and committed him to the Short Term Offender Program for 90 days to be followed by probation.

Irwin appeals, contending the court's findings that he stole the vehicle and received the same stolen vehicle are irreconcilable; he urges us to set aside the true finding on the Vehicle Code section 10851, subdivision (a) count. Irwin also contends the court did not fulfill its statutory obligation to expressly designate on the record whether the wobbler offense was a misdemeanor or felony. (Welf. & Inst. Code, § 726.)

FACTS

On January 23, 2007, a blue 1989 Toyota Camry was reported stolen. Escondido police received a tip that the stolen vehicle was seen in an area of the city and officers were dispatched. When the officers arrived, they saw the vehicle being driven out of an apartment complex. The officers activated the overhead emergency lights on their patrol car, but the driver of the stolen vehicle did not stop until he drove the Camry over a curb. At the time, the occupants of the stolen vehicle fled on foot. Officers caught Irwin, who was a passenger in the stolen vehicle, and arrested him. Irwin, who was on home supervision for an earlier offense, told the officers that he asked the driver for a ride and did not know the car was stolen. Irwin said he ran because he was scared. A piece of metal was found in Irwin's pocket; Irwin said he was told the metal was used to unlock car doors.

DISCUSSION

Irwin contends the court erred in sustaining both the allegation that he violated Vehicle Code section 10851, subdivision (a), and the allegation that he violated Penal Code section 496d because a person cannot be convicted of both car theft and receiving the same vehicle. Irwin is correct, as the Attorney General concedes. However, Irwin and the Attorney General differ on the remedy: Irwin would have us order the juvenile court to strike the true finding that he violated Vehicle Code section 10851, subdivision (a); the Attorney General contends the adjudication on the receiving a stolen vehicle count must be stricken. The Attorney General is correct.

A defendant cannot be convicted of stealing and receiving the same property. (People v. Jamarillo (1976) 16 Cal.3d 752, 757 (Jamarillo). In Jamarillo, the defendant had been found guilty of both Vehicle Code section 10851 and Penal Code section 496. In an attempt to avoid the proscription against double punishment, the court sentenced him on the receiving conviction as the greater offense, with the sentence on the vehicle conviction stayed. The Supreme Court observed this treatment ignored "the basic problem of whether defendant may properly be convicted of both charges." (Id. at p. 757.)

Penal Code section 496, which criminalizes receiving stolen property, states in pertinent 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." (Pen. Code, § 496, subd. (a).)

As the Supreme court pointed out: "Vehicle Code section 10851 proscribes a wide range of conduct. It prohibits taking or driving a vehicle with intent to either permanently or temporarily deprive the owner of title or possession of, and with or without intent to steal the vehicle." (People v. Jamarillo, supra, 16 Cal.3d at p. 757.) The high court also noted that Vehicle Code section 10851 "prohibits driving as separate and distinct from the act of taking." (Id. at p. 759, fn. 6.) The verdict did not, however, specify:

"which combination of proscribed conduct and intent resulted in the finding of guilt . . . . Indeed, it is quite likely that no refined determination was made by the fact finder. The jury could have found defendant guilty of a violation of Vehicle Code section 10851 simply because some doubt existed as to whether defendant intended to steal or merely to temporarily deprive the [victims] of possession and to drive their vehicle. Had only the Vehicle Code violation been found against defendant such a general determination would be sufficient. However, in the present case the matter is complicated by the fact that defendant was also charged and convicted of receiving the identical vehicle, and the question is thus raised whether defendant can be convicted of receiving stolen property when contemporaneously convicted of a violation which may have been predicated on the theft of that same property." (Id. at p. 758.)

The Supreme Court went on to hold that where "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." (Id. at p. 759, fn. omitted.)

Here, there is evidence supporting a finding of vehicle theft on an aiding-and-abetting theory. Irwin was arrested after exiting and running from the stolen Camry. Irwin possessed a device for unlocking car doors. Irwin said a screwdriver was being used to start the Camry. Irwin also admitted that he believed the automobile was stolen and that he had been riding around in it for while. No evidence was presented that Irwin drove the stolen vehicle.

Inasmuch as an actual conviction of theft forecloses a conviction for receiving the same stolen property, the appropriate remedy is to remand this matter to the juvenile court with directions that the true finding on the receiving a stolen vehicle count be stricken. (People v. Jaramillo, supra, 16 Cal.3d at p. 760, fn. 11.) The court shall also recalculate Irwin's maximum potential term (before reinstatement of probation if so warranted). (Welf. & Inst. Code, § 726, subd. (c).)

Irwin also contends—and the Attorney General concedes—that the juvenile court should have designated whether the wobbler offense of vehicle theft was a felony or misdemeanor. (Pen. Code, § 17, subd. (a); Welf. & Inst. Code, § 702; In re Manzy W. (1997) 14 Cal.4th 1199, 1204.) Upon remand, the court shall state on the record whether the vehicle theft is a felony or misdemeanor in this case, and thereby satisfy its obligation under Welfare and Institutions Code section 702. (See also Cal. Rules of Court, rule 5.795(a).)

The fact that the minutes of court identify the sustained offense against appellant as a felony violation of Vehicle Code section 10851 is insufficient. (In re Manzy W., supra, 14 Cal.4th at p. 1210 [to comply with Welfare and Institutions Code section 702, the record must establish "the juvenile court was aware of its discretion to sentence the offense as a misdemeanor rather than a felony."].)

DISPOSITION

The wardship order is set aside, and the matter is remanded to the juvenile court with directions to (1) strike the true finding on the receiving a stolen vehicle count, (2) recalculate Irwin's maximum potential term if warranted (Welf. & Inst. Code, § 726), and (3) designate whether the vehicle theft offense is a felony or misdemeanor in compliance with Welfare and Institutions Code section 702.

In all other respects, the order is affirmed.

WE CONCUR: McDONALD, J. IRION, J.


Summaries of

In re Irwin G.

California Court of Appeals, Fourth District, First Division
Mar 10, 2008
No. D050549 (Cal. Ct. App. Mar. 10, 2008)
Case details for

In re Irwin G.

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. IRWIN G., Defendant and Appellant.

Court:California Court of Appeals, Fourth District, First Division

Date published: Mar 10, 2008

Citations

No. D050549 (Cal. Ct. App. Mar. 10, 2008)