Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. J196913, Douglas N. Gericke, Judge.
Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Jeffrey J. Koch, Supervising Deputy Attorney General, and Marissa Bejarano, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
KING J.
The juvenile court found true allegations that minor received a stolen vehicle (count 1—Pen. Code, § 496d, subd. (a)) and tampered with that vehicle (count 2—Veh. Code, § 10852). On appeal, minor appears to contend both that the court erred in permitting a true finding on count 2 because it was a lesser included offense of count 1, and that the court erred in finding count 1 true because it was a lesser included offense of count 2. While we agree that the offense of tampering may be a lesser included offense of the receipt of the same stolen property, we find the issue irrelevant because sufficient evidence was presented at trial showing that the charges involved separate, divisible conduct for which separate true findings were appropriate. Minor additionally maintains the juvenile court failed expressly to exercise its discretion in determining whether the “wobbler” offense of receipt of a stolen vehicle should be deemed a felony or misdemeanor. The People concede the issue. We agree and, therefore, remand the matter to permit the juvenile court to make an express determination, in exercise of its discretion, of whether minor’s commission of the count 1 offense should be deemed a felony or misdemeanor. In all other respects, the judgment is affirmed.
I. FACTS AND PROCEDURAL HISTORY
On September 17, 2006, at 8:30 p.m., Joy Jaime parked and locked her 1992 blue Honda Civic in front of the apartment unit next to her own. At 10:30 p.m., she noticed her car was still there. Jaime discovered her vehicle was missing around 7:20 a.m. the next morning. She reported the theft to the police that morning.
On September 19, 2006, at approximately 6:45 p.m., Officer Mark Blackwell was dispatched to a residence in the City of San Bernardino regarding the possible stripping of a stolen vehicle. Blackwell parked his vehicle down the street and approached the residence on foot. Jaime’s vehicle was parked in the back area of the house, in the side yard at the top of the driveway in the garage area. The vehicle was not visible from the street in front of the residence. Blackwell made his way up along a chain link fence which divided the property from an adjacent residence. Blackwell observed defendant and a coparticipant inside the vehicle removing items from it. Blackwell called both individuals over to him and handcuffed them. Minor’s hands and clothing were covered in grease and dirt.
The doors, motor, transmission, tires, hood, struts, interior seats, carpet, door panels, and dashboard of the vehicle had all been removed. Different wheels had been placed on the vehicle. All the removed parts were laying out on the ground next to the vehicle.
Blackwell spoke to minor’s codefendant who resided at the residence. Minor’s codefendant indicated that someone named “Josh” called him asking if he could bring the vehicle over to the codefendant’s home in order to remove its motor. After asking his mother, minor’s codefendant told “Josh” it was okay for him to bring the vehicle over and store it. Minor and another individual arrived in the vehicle sometime thereafter and parked it at the back of the residence. They then began removing parts from the vehicle. No one by the name of “Josh” was found at the property.
Officer Chris De La Cruz was also dispatched to the residence on September 19, 2006, at approximately 6:40 p.m.; he assisted Blackwell in detaining the minors. Minor informed him that he and his friend were at the latter’s home that afternoon when they decided to walk to a local Auto Zone. Outside the business they were contacted by a man who asked if they were interested in purchasing the subject vehicle. Minor’s friend indicated that he could use the parts from the vehicle in a Honda of his own. Minor’s friend purchased the vehicle from the individual for somewhere between $500 and $2,500. The seller was unable to provide minor’s friend with any proof of ownership. They then drove the vehicle to minor’s codefendant’s home where they parked the vehicle at the back of the residence and began to strip the vehicle. They spent several hours stripping the vehicle prior to being caught. Minor did not think it strange that the seller could provide no proof of ownership of the vehicle or that his friend had between $500 and $2,500 in cash on him.
The court sentenced minor to formal probation.
II. DISCUSSION
A. Separate Conduct Supports the True Findings That Appellant Both Received Stolen Property and Tampered With a Vehicle
“[M]ultiple convictions may not be based on necessarily included offenses. [Citation.] [‘If the evidence supports the verdict as to a greater offense, the conviction of that offense is controlling, and the conviction of the lesser offense must be reversed’].” (People v. Pearson (1986) 42 Cal.3d 351, 355.) “‘The test in this state of a necessarily included offense is simply that where an offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense.’ [Citations.]” (Ibid.) “Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former.” (People v. Reed (2006) 38 Cal.4th 1224, 1227.)
Tampering may very well be a lesser included offense of receipt of the same stolen property. Defendant cites People v. Anderson (1975) 15 Cal.3d 806 (Anderson) in support of his contention that “one who receives stolen property necessarily tampers or interferes with it because it is equally inconsistent with the owner’s right of possession.” In Anderson, the court held that the tampering requisite to support a charge under Vehicle Code section 10852 included interference with an individual’s ownership interest in that property: “Interference includes conduct which is broader in scope than merely damaging a vehicle, for it encompasses any act inconsistent with the ownership thereof. Irrespective of the means used, one who steals an automobile must necessarily ‘interfere with’ it because the act of exercising control over the vehicle in the act of theft is inconsistent with the owner’s right of immediate and continuous possession.” (Anderson, supra, at p. 810.) Thus, tampering is necessarily a lesser included offense of grand theft auto. (Id. at pp. 808, 810-811.) This aside, however, the facts adduced at trial demonstrate that the tampering charge was not supported solely by minor’s receipt of the stolen vehicle, but was based on separate conduct committed after the receipt of the stolen vehicle had been completed.
In People v. Garza (2005) 35 Cal.4th 866 (Garza), the court concluded that a defendant may be convicted of the separate offenses of unlawful driving of a vehicle (Veh. Code, § 10851, subd. (a)) and receipt of stolen property (Pen. Code, § 496) based on the same stolen vehicle where “a defendant . . . steals a vehicle and then continues to drive it after the theft is complete . . . .” (Garza, supra, at p. 880.) “In other words, . . . once the initial theft offense was no longer in progress, any posttheft driving of the vehicle constituted a new violation of [Vehicle Code] section 10851[, subdivision] (a) that was separable and distinct from the taking.” (Ibid., fn. omitted.) “One might also suggest that the taking is complete when the taker reaches a place of temporary safety.” (Ibid.) “If the conviction is for the taking of the vehicle, with the intent to permanently deprive the owner of possession, then it is a theft conviction that bars a conviction of the same person under [Penal Code] section 496[, subdivision] (a) for receiving the same vehicle as stolen property. Dual convictions are permissible, however, if the [Vehicle Code] section 10851[, subdivision] (a) conviction is for posttheft driving of the vehicle.” (Id. at p. 881.)
While in the present case, minor was not charged with an unlawful taking or driving of a vehicle, we believe the rule in Garza is applicable by analogy to the present circumstances. Here, minor was not charged with a theft offense; thus, he could be charged with both tampering and receipt of stolen property regarding the same property if the former was accomplished after the latter had been completed. Minor admitted to the officer that “they,” his friend and he, drove the vehicle from Auto Zone to his codefendant’s home. While minor neglected to inform the officer whether he or his friend actually drove the vehicle, evidence that a defendant was a passenger in a vehicle, combined with additional facts, may be sufficient to suggest dominion and control from which a finder of fact may infer sufficient evidence to support a conviction for receiving stolen property. (People v. Land (1994) 30 Cal.App.4th 220, 228.) Here, minor and his coparticipant were friends. The court explicitly found that minor knew the vehicle was stolen and that finding was supported by substantial evidence. (People v. Reed (1968) 260 Cal.App.2d 882, 885; People v. Du Bont (1965) 235 Cal.App.2d 844, 848; People v. Boinus (1957) 153 Cal.App.2d 618, 622 [possession of stolen property with improbable and suspicious explanation as to the manner of its attainment sufficient to support finding that the defendant knew the property was stolen].) Minor used the car in a joint criminal enterprise, the stripping of the vehicle for parts. Minor made no effort to disassociate himself from his friend or the stolen vehicle once they arrived at his codefendant’s residence. Thus, sufficient facts, in addition to minor’s status as a passenger in the vehicle, supported the true finding that he had received a stolen vehicle by the time the two parked the car at the residence. (People v. Land, supra, 30 Cal.App.4th at p. 228.)
Moreover, the crime of receipt of the stolen vehicle had been completed by the time minor engaged in tampering with that vehicle. The receipt of that stolen vehicle was no longer in progress. Minor had reached a point of temporary safety. The car was parked at the rear of the residence, obscured by the garage from visibility from the street. Likewise, the call that initiated the officers’ response indicated a suspicion of the stripping of a stolen vehicle, not merely the receipt of stolen property. Minor and his friend spent several hours stripping the car. Thus, had defendant not tampered with the vehicle, it is likely no call to the police would ever have been made. Therefore, minor’s tampering with the vehicle was separate conduct which supported separate true findings for separate offenses.
Upholding the true findings for both counts here also supports a public policy of discouraging individuals from damaging or stripping stolen vehicles they have received. If two hypothetical persons are in acknowledged receipt of two separate stolen vehicles, both of which are eventually recovered, surely the one who has stripped the vehicle of its parts has done more damage and is deserving of more punishment than the individual who has left the car intact. Thus, the true findings on both counts are affirmed.
B. The Matter Must be Remanded to the Juvenile Court For an Express Declaration, in Exercise of Its Discretion, of Whether Minor’s Commission of the Offense of Receipt of a Stolen Vehicle Should be Deemed a Felony or Misdemeanor
The trial court expressly found true that minor committed a violation of Penal Code section 496d, subdivision (a) which the People alleged in its petition as a felony. The court expressly declared that the offense “is a felony.” A violation of Penal Code section 496d, subdivision (a) is a “wobbler,” punishable either as a felony or a misdemeanor. (Pen. Code, §§ 17, subd. (b), 496d, subd. (a).) Minor contends the juvenile court failed to expressly state whether it was exercising its discretion in declaring the offense of receiving a stolen vehicle as a felony rather than a misdemeanor and, therefore, that the matter must be remanded. The People concede the issue. We agree.
Welfare and Institutions Code section 702 mandates that “[i]f the minor is found to have committed an offense which would in the case of an adult be punishable alternatively as a felony or a misdemeanor, the court shall declare the offense to be a misdemeanor or felony.” The language of Welfare and Institutions Code section 702 “is unambiguous. It requires an explicit declaration by the juvenile court whether an offense would be a felony or misdemeanor in the case of an adult.” (In re Manzy W. (1997) 14 Cal.4th 1199, 1204 (Manzy W.).) “[Welfare and Institutions Code] section 702 means what it says and mandates the juvenile court to declare the offense a felony or misdemeanor.” (In re Kenneth H. (1983) 33 Cal.3d 616, 619; see also In re Ricky H. (1981) 30 Cal.3d 176, 191.) “[T]he purpose of the statute is not solely administrative. As Kenneth H. and Ricky H. acknowledge, the requirement that the juvenile court declare whether a so-called ‘wobbler’ offense was a misdemeanor or felony also serves the purpose of ensuring that the juvenile court is aware of, and actually exercises, its discretion under Welfare and Institutions Code section 702.” (Manzy W., supra, at p. 1207.) Furthermore, “neither the pleading, the minute order, nor the setting of a felony-level period of physical confinement may substitute for a declaration by the juvenile court as to whether an offense is a misdemeanor or felony. [Citation.]” (Id. at p. 1208.)
Here, while the court referred to the offense as a felony in finding the allegation against minor true, nothing in this record demonstrates that the juvenile court was aware of its discretion to impose sentence for the offense as a misdemeanor rather than a felony. The court appears to have referred to the offense as a felony simply because the People alleged it as a felony. Therefore, the matter must be remanded for the juvenile court to comply with Welfare and Institutions Code section 702. (Manzy W., supra, 14 Cal.4th at p. 1211.)
III. DISPOSITION
The matter is remanded to the juvenile court for an express declaration, in exercise of its discretion, whether minor’s commission of the allegation in count 3 for receiving a stolen vehicle should be deemed a felony or misdemeanor. In all other respects, the judgment is affirmed.
We concur: McKinster Acting P.J. Richli J.