Opinion
H042160
03-30-2017
THE PEOPLE, Plaintiff and Respondent, v. DAVID WAYNE ASHFORD, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1490648)
Defendant David Wayne Ashford was convicted by jury of grand theft auto (Pen. Code §§ 484, 487, subd. (d)(1), a felony); theft or unauthorized use of a vehicle (Veh. Code, § 10851, subd. (a), a felony); possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a), a misdemeanor); and possession of drug paraphernalia (former Health & Saf. Code, § 11364.1, a misdemeanor). The court suspended imposition of sentence and granted defendant three years' formal probation. The conditions of defendant's probation included that he not use controlled substances, including marijuana, and that he serve eight months in jail.
Hereafter, undesignated statutory references are to the Penal Code.
At trial, the prosecution alleged that the auto theft occurred in June 2014 and the unauthorized driving occurred several weeks later. Defendant contends his convictions for both grand theft auto and unauthorized driving violate the state and federal double jeopardy clauses and "dual conviction" prohibitions in section 654. Defendant argues that while Vehicle Code section 10851 prohibits both unauthorized taking and unauthorized driving of a vehicle, the taking and driving are one continuous offense, and that the trial court erred when it found that the theft and unauthorized driving in this case were distinct offenses. He contends the court's finding permits an unauthorized driving offender to be convicted of a new Vehicle Code section 10851 offense each time a stolen car is driven and subjects such an offender to a far greater penalty than a taking offender, who can only be punished once for the taking. We conclude that defendant's convictions for grand theft auto and unauthorized driving do not violate double jeopardy prohibitions or section 654, since the prosecution pleaded and proved that the theft and the driving occurred on separate occasions and the theft was completed before the unauthorized driving occurred.
Defendant also challenges the trial court's order that the trial judge, and no other judge, has jurisdiction to modify the no-marijuana condition of probation. Since defendant's probation has been terminated, we will conclude this issue is moot.
Finally, defendant argues that the court's order imposing an eight-month sentence for possession of drug paraphernalia was unauthorized because the maximum sentence for the offense is six months. Since the eight months was imposed as a condition of probation as to all counts, we find no error. However, we will order the clerk of the court to correct the minute order to reflect that the jail term was imposed just once as to all counts. With that correction, we will affirm the judgment.
FACTS
I. The Prosecution Case
In May 2014, Lily O. (Victim) decided to sell her 1990 Honda Civic, which was "well-maintained" and in good condition. She had just replaced the front brakes and rotors. Over the years, Victim had had the car repainted and replaced the door locks. The car consequently had two keys: one for the ignition and one for the door locks.
Victim posted the Honda for sale on the Internet for $2,200. She received several responses and two people test-drove the car. On June 15, Victim put some "For Sale" signs on the car and parked it near an intersection half a block from her home in Santa Cruz. The following morning, the car was gone. Victim reported the theft to the police.
On August 6, at approximately 5:40 p.m., Santa Clara County Sheriff Deputy Cary Colla was on patrol in marked car when he saw Victim's Honda parked on the shoulder of Old Santa Cruz Road near the Bear Creek Road on-ramp to northbound Highway 17. Deputy Colla checked his computer, learned that the car had been reported stolen, and decided to investigate. Deputy Colla called for backup before approaching the car. Defendant, the sole occupant of the Honda, was seated in the driver's seat, reading text messages.
Deputy Colla went up to the open driver's window, asked defendant if the car belonged to him, and "asked for paperwork." Defendant seemed agitated and demanded to know why Deputy Colla had contacted him. To stall until another officer arrived, Deputy Colla said he wanted to validate the Honda's registration; he did not tell defendant the car had been reported stolen. Defendant said he bought the Honda a few months before, had not registered it in his name yet, and did not have any paperwork other than a bill of sale.
There was a key in the ignition and the car's engine was running. Deputy Colla asked defendant to step out of the car, hoping to detain defendant before he ran or drove off. As Deputy Colla placed defendant in handcuffs, he told him the Honda had been reported stolen. Defendant said the car could not be stolen, he just bought it, and had a bill of sale in the glove box. Later, defendant said he bought the car from Daniel Shiner, who was selling it on behalf of the owner.
Deputy Newberg arrived and the officers placed defendant in the backseat of Deputy Newberg's patrol car. Deputy Colla retrieved the bill of sale from the glove box. It listed the sale price as $175.
According to Deputy Colla, the Honda's ignition was neither altered nor damaged, and there was no damage to the doors or windows. Deputy Colla found just one key: an ignition key. It looked like a copy that had been made at a hardware store; it was not a shaved key and did not appear to have been altered or broken. According to Deputy Colla, Hondas from the early 1990's have "pretty easy ignitions to defeat." Victim had several sets of keys to the Honda, but the key defendant used was not one of her keys.
Deputy Colla found a backpack on the back seat of the Honda. Defendant said the backpack belonged to him and told the deputy he could not search the backpack because he (defendant) was not on probation or parole. When Deputy Colla said he could search the backpack incident to arrest, defendant agreed to the search and said there were "drugs" in the backpack. Deputy Colla asked it if was methamphetamine, and defendant said "yes." Defendant later said the methamphetamine belonged to him.
Deputy Colla found a crystalline substance and a glass pipe in the front pocket of the backpack. The substance tested presumptively positive for methamphetamine at the scene. Later laboratory testing confirmed it was methamphetamine. It weighed 0.5 grams, a usable amount. Deputy Colla did not find any marijuana in the backpack or the car; officers searched the backpack upon defendant's admission to the jail and no one reported finding any marijuana.
Deputy Colla called Victim. She came to the scene and picked up the Honda. Deputy Colla showed Victim the bill of sale. She had never seen it before. There were inaccuracies on the bill of sale. The seller's name was listed as "Linda," instead of "Lily." Although Victim's middle name is Linda, she does not use that name socially, professionally, or in any other capacity. The bill of sale stated that the sale took place on June 14, 2014, a day or two before the car was stolen. It described the car as a 2001 Honda, not a 1990 Honda. Victim did not know Daniel Shiner.
When Victim got the car back, the exterior was dirty, and the interior was "extremely filthy." There were stains on the seats, the car was full of old food wrappers; Victim found tools and a pair of panties, none of which belonged to her, on the back seat. An "overwhelming" smell of marijuana and body odor filled the car. The seat cover on the driver's seat was missing. According to Victim, the registration and proof of insurance were still in the glove box. Victim had the car professionally cleaned and sold it for $1,600. II. The Defense Case
Defendant and his friend, Andrea Souza, testified.
A. Testimony of Andrea Souza
Souza and defendant had been friends for 10 years. They both lived in Boulder Creek; defendant lived on a remote mountain property. Souza testified that around July 2014, defendant purchased the Honda for $500 from Ellie O. (Ellie).
Ellie allegedly had the same last name as Victim. To protect Victim's privacy, we shall not use the last name. (See Cal. Rules of Court, rule 8.90(b)(4), eff. Jan. 1, 2017.)
On the day of the purchase, Souza visited Shiner (her former boyfriend) at his home. While she was there, a friend named Brian came over with Ellie. Souza had never seen Ellie before. She described Ellie as "a hippie girl, college girl," "young skinny" with unkempt hair. Souza later testified that Brian and Ellie lived with Shiner. Souza saw Ellie drive up in the Honda. Ellie said her mother gave her the Honda for graduation, but she did not want it and was trying to sell it.
At trial, Victim testified that she did not know anyone named "Ella." No one asked whether she knew anyone named "Ellie" or had a daughter named "Ellie."
Before Souza arrived, Ellie had asked Shiner to help her find a buyer and Shiner had been driving the Honda around, showing it to people he knew, including defendant. Defendant offered to buy it for $500, so Shiner went back home to complete the paperwork with Ellie.
Souza saw Ellie prepare two bills of sale at Shiner's house. Initially, Souza testified that the first bill of sale was from Ellie to Shiner and the second was from Shiner to defendant. Later, Souza testified that she saw a bill of sale transferring the car from Victim to Ellie and a second bill of sale transferring the car from Ellie to defendant. Souza's testimony was not consistent with the bill of sale defendant gave Deputy Colla, which showed a sale from "Linda O." to defendant. After the paperwork was done, Shiner drove the Honda to defendant's house. Souza followed in her car so she could give Shiner a ride back home. Meanwhile, Brian and Ellie waited at Shiner's house.
After they arrived at defendant's house, Souza saw Shiner give defendant both bills of sale and a key and saw defendant give Shiner $500 in cash. Souza gave Shiner a ride back home and saw Shiner give the cash to Ellie. She never saw Ellie again. Souza testified that even though defendant paid $500 for the car, the bill of sale listed the price as $175 "due to . . . registration fees" and that defendant did not question that.
B. Defendant's Testimony
Defendant bought the Honda from Shiner in mid-June. He had known Shiner for over 30 years. He initially offered $300 for it, but later agreed to pay $500. Shiner then went to the owner, filled out the paperwork, and returned with the car. When Shiner returned, he had two copies of a bill of sale: one for defendant to keep and one for Shiner to take back to the seller. Defendant read one copy and signed both copies. Defendant assumed both copies were the same and did not look at the second one too carefully. When he bought the car, he thought Ellie was the registered owner. He thought Ellie was selling the car, even though the bill of sale he received lists "Linda" as the seller. He testified that the other bill of sale had Ellie's name on it. Defendant was surprised when Deputy Colla told him the car was stolen; he told the deputy he bought the car and had a bill of sale.
Defendant lived on 10 acres off a dirt road; he did not have many neighbors and did not lock the car, since there was nobody "to lock it against." Thus, anyone that came by had access to the car. Between mid-June and August 6, defendant used the Honda three times to haul firewood on his property. On August 6, he was going to a friend's house in San José. That was the first time he drove the Honda off his property. (Defendant's driver's license had been suspended since 2003.)
As of August 6, defendant had not gone to the DMV to change the title or register the Honda in his name since the car was already registered and the registration was good until October 2014. He also testified he planned to stop at the DMV office in Los Gatos on the way to visit his friend, even though it was already 5:40 p.m. when Deputy Colla approached him. He planned to understate the price he paid for the car to the DMV. He never obtained auto insurance for the Honda.
Around August 3, defendant put his backpack on the backseat of the Honda. On August 6, he put a metal tin of marijuana in the front pocket of his backpack. When Deputy Colla asked him if there were any drugs in the backpack, defendant said it contained "my pot"; he later testified that he said there were "drugs" in the backpack. He did not know how the methamphetamine and the glass pipe got into his backpack. He had never seen them before and denied they were his. Defendant denied telling Deputy Colla the methamphetamine belonged to him.
PROCEDURAL HISTORY
Defendant was charged in an amended information with one count each of: (1) grand theft auto (§§ 484, 487, subd. (d)(1), a felony) on or about June 15; (2) theft or unauthorized use of a vehicle (Veh. Code, § 10851, subd. (a), a felony) on August 6; (3) receiving stolen property (§ 496, subd. (a), a felony); (4) possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a), a misdemeanor); and (5) possession of paraphernalia (former Health & Saf. Code, § 11364.1, a misdemeanor).
The case went to trial and a jury found defendant guilty of grand theft auto, theft or unauthorized use of a vehicle, and both of the drug charges. The jurors were instructed that if they found defendant guilty of grand theft auto, to return the verdict form for receiving stolen property unsigned, which they did. The receiving stolen property count was later dismissed.
The trial court minutes for January 23, 2015 state that there was a mistrial on count 3, the receiving stolen property count. A mistrial is a "trial that the judge brings to an end, without a determination on the merits, because of a procedural error or serious misconduct occurring during the proceedings" or a "trial that ends inconclusively because the jury cannot agree on a verdict." (Black's Law Dict. (8th ed. 2004) p. 1023, col. 2.) In this case, the jury determined that defendant was guilty of grand theft auto. It then followed the court's instructions to return the verdict form on the receiving stolen property count unsigned, thus implementing the provision in section 496 that "no person may be convicted both [of receiving stolen property] and of the theft of the same property." There was no mistrial on the receiving stolen property count.
At sentencing, the court suspended imposition of sentence and granted three years formal probation. Defendant's conditions of probation included that he serve eight months in jail, not use drugs, submit to drug testing as ordered by the probation department, and complete a substance abuse treatment program. The court ordered defendant to pay $675 in victim restitution to cover the cost of cleaning the car and its diminished value. The court also imposed other fines and fees.
DISCUSSION
I. Defendant's convictions for both grand theft auto and unauthorized driving do not violate the state and federal double jeopardy clauses or section 654 .
Defendant contends his convictions for both grand theft auto on June 15 (§§ 484, 487, subd. (d)(1)) and unauthorized driving on August 6 (Veh. Code, § 10851, subd. (a)) violate the state and federal double jeopardy clauses, as well as "dual conviction" prohibitions in section 654. He argues the trial court's finding that the grand theft and unauthorized driving were distinct offenses permits an unauthorized driving offender to be convicted of a new offense each time a car is driven and subjects the unauthorized driving offender "to a far greater penalty than a taking offender, who can only be punished once for the taking."
A. Background
Before the court instructed the jury, defense counsel argued that convictions for both grand theft auto and unauthorized driving were prohibited because the unauthorized driving alleged in count 1 was a lesser included offense of the grand theft auto alleged in count 2, arguing that "the driving and the initial theft are all one series, all one act in and of themselves." The prosecution argued that defendant could be convicted of both grand theft auto and posttheft unauthorized driving, citing People v. Jaramillo (1976) 16 Cal.3d 752 (Jaramillo) (superseded by statute on another ground as stated in People v. Hinks (1997) 58 Cal.App.4th 1157, 1161-1163), People v. Malamut (1971) 16 Cal.App.3d 237 (Malamut) and People v. Garza (2005) 35 Cal.4th 866 (Garza). After reviewing case law, the trial court concluded that the unauthorized driving alleged in count 1 was not a lesser included offense of the grand theft auto alleged in count 2, stating that the prosecutor had "clearly structured his theory of the case that the defendant is responsible for stealing the car on June 15 . . . and then driving it on August 6 . . . ." The trial court found that the amount of time between June 15 and August 6 provided an appropriate factual scenario for the taking and the driving to be "distinct offenses." Consequently, the trial court did not instruct the jury with CALCRIM No. 3516 (Multiple Counts: Alternative Charges for One Event—Dual Conviction Prohibited)—which applies when the defendant may be legally convicted of only one of two alternate charges—as to counts 1 and 2.
The court did instruct the jury with CALCRIM No. 3516 as to the relationship between count 2 (grand theft auto) and count 3 (receiving stolen property).
B. Governing Legal Principles
Sections 484 and 487, subdivision (d)(1) define the crime commonly referred to as "grand theft auto." They provide that every person who feloniously steals, takes, carries or drives away the automobile of another is guilty of grand theft. (§§ 484, 486, 487; Jaramillo, supra, 16 Cal.3d at p. 755.)
As the California Supreme Court has stated, Vehicle Code section 10851, subdivision (a) (hereafter sometimes Vehicle Code section 10851(a)) "defines the crime of unlawful driving or taking of a vehicle. Unlawfully taking a vehicle with the intent to permanently deprive the owner of possession is a form of theft, and the taking may be accomplished by driving the vehicle away. For this reason, a defendant convicted under section 10851(a) of unlawfully taking a vehicle with the intent to permanently deprive the owner of possession has suffered a theft conviction . . . . On the other hand, unlawful driving of a vehicle is not a form of theft when the driving occurs or continues after the theft is complete (for convenience, we will refer to this as 'posttheft driving'). Therefore, a conviction under section 10851(a) for posttheft driving is not a theft conviction . . . ." (Garza, supra, 35 Cal.4th at p. 871, original italics.)
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." (Jaramillo, supra, 16 Cal.3d at p. 757, original italics; accord Garza, supra, 35 Cal.4th at p. 876.) It "proscribes the act of driving the vehicle of another even without an intent to commit theft. Although in some decisions the courts have loosely referred to the conduct proscribed by [Vehicle Code] section 10851 as taking and driving [citation], other courts and the clear language of the statute recognize that the section prohibits driving as separate and distinct from the act of taking. [Citations.]" (Jaramillo, at p. 759, fn. 6, original italics.)
Vehicle Code section 10851, subdivision (a) provides in relevant part: "Any person who drives or takes a vehicle not his or her own, without the consent of the owner thereof, and with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle, whether with or without intent to steal the vehicle, . . . , is guilty of a public offense . . . ."
In Garza, the Supreme Court examined the relationship between section 496—which defines the crime of receiving stolen property—and Vehicle Code section 10851. (Garza, supra, 35 Cal.4th at pp. 871, 874-879.) The Garza court noted that section 496 "provides that a person who has been convicted of the theft of property may not also be convicted of receiving the same property. This provision codifies a common law rule prohibiting separate convictions of the same person for stealing and receiving the same property. [Citation.]" (Garza, at p. 871.)
"A person can violate Vehicle Code section 10851(a) 'either by taking a vehicle with the intent to steal it or by driving it with the intent only to temporarily deprive its owner of possession (i.e., joyriding).' [Citations.]" (Garza, supra, 35 Cal.4th at p. 876.) Our Supreme Court has long recognized that the two forms or culpability under Vehicle Code section 10851 are separate and distinct. (Ibid., citing among other cases People v. Barrick (1982) 33 Cal.3d 115, 135 ["The acts constituting driving a vehicle and taking a vehicle are separate and distinct"] and Jaramillo, at p. 759, fn. 6 [Veh. Code, § 10851 "prohibits driving as separate and distinct from the act of taking"].)
As for the relationship between Vehicle Code section 10851(a) and receiving stolen property, the Supreme Court held in Garza that a "person who violates [Vehicle Code] section 10851(a) by taking a car with the intent to permanently deprive the owner of possession, and who is convicted of that offense on that basis, cannot also be convicted of receiving the same vehicle as stolen property. [Citations.] If, on the other hand, a [Vehicle Code] section 10851(a) conviction is based on posttheft driving, a separate conviction under section 496(a) for receiving the same vehicle as stolen property is not precluded. [Citations.]" (Garza, supra, 35 Cal.4th at p. 876.)
In this case, defendant's Vehicle Code section 10851(a) conviction was based on his posttheft driving of the Honda on August 6 (a nontheft offense), not the initial taking of the vehicle on June 15 (a theft offense). The prosecution expressly elected to proceed on the Vehicle Code section 10851(a) count under a posttheft driving theory. The information was amended to change the date of the Vehicle Code section 10851(a) offense from June 15 to August 6 and the jury was instructed only as to the posttheft driving theory under Vehicle Code section 10851. However, defendant was also separately convicted of the theft of the Honda on a grand theft auto (§§ 484, 487, subd. (d)(1)) theory in count 2, and not as a Vehicle Code section 10851(a) taking. The jury was instructed that if it found defendant guilty of grand theft, it could not convict defendant for receiving stolen property. It followed that instruction and the receiving count was dismissed.
The analysis in Garza touched on the question whether a defendant may be convicted under Vehicle Code section 10851(a) of both taking (a theft offense) and posttheft driving (a nontheft offense) of the same stolen vehicle. Discussing People v. Strong (1994) 30 Cal.App.4th 366 (Strong), the Garza court stated: "the Strong court concluded that the defendant's section 10851(a) conviction was not a theft conviction, but was instead a nontheft conviction for unlawful posttheft driving of a motor vehicle. In reaching this conclusion, the court reasoned that the taking and the driving of a vehicle could constitute separate and distinct violations of section 10851(a), at least where, as there, the driving was not part of [a] ' "continuous journey away from the locus of the theft." ' (Strong, at p. 375, . . . .) In other words, the court reasoned that, once the initial theft offense was no longer in progress, any posttheft driving of the vehicle constituted a new violation of section 10851(a) that was separable and distinct from the taking." (Garza, supra, 35 Cal.4th at p. 880, original italics.) The court explained further that the determination "whether a taking of a vehicle is legally separate from a driving of the same vehicle for purposes of distinguishing separate violations of section 10851(a) . . . depends on whether the driving continues after the taking of the vehicle is complete." (Garza, at p. 880, fn. 2.)
The Garza court elaborated on this point, stating: "As we have explained, section 10851(a) separately prohibits the acts of driving a vehicle and taking a vehicle. [Citations.] Thus, a defendant who steals a vehicle and then continues to drive it after the theft is complete commits separate and distinct violations of section 10851(a). In Strong, . . . , the Court of Appeal appeared to suggest that a taking is complete when the driving is no longer part of a ' "continuous journey away from the locus of the theft." ' [Citation.] One might also suggest that the taking is complete when the taker reaches a place of temporary safety. (Cf. People v. Barnett (1998) 17 Cal.4th 1044, 1153 . . . [discussing duration of crime of robbery].) Whatever the precise demarcation point may be (an issue we need not decide here), once a person who has stolen a car has passed that point, further driving of the vehicle is a separate violation of section 10851(a) that is properly regarded as a nontheft offense for purposes of the dual conviction prohibition of section 496(a)." (Garza, supra, 35 Cal.4th at pp. 880-881.) Thus, the court acknowledged that there could be separate violations of Vehicle Code section 10851(a) following the theft of a single vehicle on both taking and posttheft driving theories. Although this case does not involve the dual conviction prohibition under section 496, we conclude the same analysis applies to the issue presented here.
Also at issue in Garza was the question whether the defendant's conviction for violating Vehicle Code section 10851(a) in that case was for taking or posttheft driving. The court analyzed the issue as follows: "At defendant's trial, Officer Pham testified that at a strip mall parking lot he found defendant sitting in the driver's seat of a car that had been reported stolen six days earlier, with the key in the ignition and the motor running. Officer Pham found no one else in the car, nor did he see anyone else in the area who might have driven it to that location, . . . . Defendant offered no evidence attacking Officer Pham's credibility or suggesting that any other person might have driven the car to that place. The only reasonable inference that a juror could draw from the evidence at trial [citation] was that defendant had driven the car there before being overcome by the effects of drug intoxication. The theft of the vehicle six days earlier was long since complete, and the driving therefore constituted a separate, distinct, and complete violation of section 10851(a). Under these circumstances, we conclude that it is not reasonably probable that a properly instructed jury would have found defendant guilty of violating section 10851(a) by stealing the car but not by posttheft driving." (Garza, supra, 35 Cal.4th at p. 882.) Accordingly, the court upheld the defendant's convictions under Vehicle Code section 10851(a) and for receiving stolen property by construing his conviction under Vehicle Code section 10851(a) as a nontheft conviction for posttheft driving. (Ibid.)
C. Double Jeopardy and Section 654
Defendant asserts that grand theft auto and posttheft driving are "alternative charges for one event and that dual convictions are prohibited by the state and federal Double Jeopardy Clauses and . . . section 654." (Italics added.) He argues "[t]he doctrine of included offenses is a part of the constitutional guarantee against double jeopardy. (U.S. Const., 5th Amend.; Cal. Const., art. I, § 13.) Even when a given crime is not 'necessarily included' within another one for the purpose of the double jeopardy statute, under certain circumstances . . . section 654 bars the conviction of both crimes." (Italics added.)
The double jeopardy bar, however, does not apply to defendant's convictions for grand theft and posttheft driving. "The double jeopardy bar does not apply to multiple convictions or acquittals in a single trial." (People v. Scheidt (1991) 231 Cal.App.3d 162, 169, citing Ohio v. Johnson (1984) 467 U.S. 493, 501.) Since the purpose of the double jeopardy doctrine " 'is to protect the defendant from the harassment of multiple trials, it is properly invoked only where there was a prior criminal proceeding [that] reached the jeopardy stage. It does not apply to convictions[,] acquittals or dismissals on separate counts in a single trial,' " as occurred here. (Ibid.) "[S]imply because two criminal statutes may be construed to proscribe the same conduct . . . does not mean that the Double Jeopardy Clause precludes the imposition, in a single trial, of cumulative punishments pursuant to those statutes." (Missouri v. Hunter (1983) 459 U.S. 359, 368, italics added.) The question is one of legislative intent. Where the Legislature makes clear its intent to subject a defendant to conviction and sentence under both statutes, cumulative punishment is permissible. (Ibid.) The Legislature in California has made its intent clear. If several charges proscribing the same conduct are tried in a single proceeding, the defendant may be found guilty of all of the offenses, but under section 654, may be punished for only one of them: the one that provides for the longest term of imprisonment. (§ 654; 1 Witkin, Cal. Criminal Law (4th ed. 2012) Defenses, § 188, p. 660.) Since defendant was convicted of grand theft auto and unauthorized posttheft driving in the same trial, he could be convicted of both offenses without violating double jeopardy principles.
Section 654 provides in relevant part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other."
Defendant argues that section 654 also bars his convictions for both grand theft auto and unauthorized driving. Defendant is incorrect. "It is well settled that section 654 protects against multiple punishment, not multiple conviction[s]." (People v. Correa (2012) 54 Cal.4th 331, 336.) " 'Since its origin in 1872, the Penal Code has prohibited multiple punishment for a single "act or omission." (§ 654.) Although [the California Supreme Court's] interpretation of that provision has varied somewhat over the years, [it has] consistently held that it bars imposing [multiple] sentences for a single act or omission, even though the act or omission may violate more than one provision of the Penal Code. [Citation.] Since 1962 [the Supreme Court has] interpreted section 654 to allow multiple convictions arising out of a single act or omission, but to bar multiple punishment for those convictions. [Citations.] . . . [E]xecution of the sentence for one of the offenses must be stayed.' " (People v. Mesa (2012) 54 Cal.4th 191, 195.) In this case, section 654's prohibition on multiple punishment had not yet come into play since imposition of sentence was suspended and defendant was granted probation. We therefore reject defendant's section 654 claim.
D. Defendant's Punishment Disparity Argument
Defendant argues that he was improperly convicted of both grand theft auto and unauthorized posttheft driving because the "trial court's finding of 'distinct offenses' permits a new Vehicle Code section 10851, subdivision (a) offense each time the car is driven, which renders a driving offender susceptible to a far greater penalty that a taking offender, who can only be punished once for the taking," and "this gross potential punishment disparity cannot have been the intent of the Legislature." He asserts that if Vehicle Code section 10851(a) were violated every time a defendant drove a stolen car, it would result in "multiple convictions and punishments for a defendant convicted of driving a stolen vehicle [on multiple occasions] while a defendant convicted of the taking can only be punished once." Defendant describes a hypothetical defendant who engaged in six separate acts of driving a stolen vehicle on a single day and argues that nothing in Vehicle Code section 10851(a) prevents such a defendant from being convicted of and punished for six separate counts of unauthorized driving.
Defendant notes that the only time this argument has been mentioned in any published case is Justice Carter's concurring opinion in People v. Kehoe (1949) 33 Cal.2d 711 (Kehoe). The defendant in Kehoe stole a car in Eureka and was arrested a week later driving the car in Salinas. (Id. at p. 715.) He was convicted by jury of both grand theft auto (§ 487) and unauthorized taking or driving (former Veh. Code, § 503, predecessor to Veh. Code, § 10851 ). (Kehoe, at pp. 712-713.) The Supreme Court reversed the conviction for unauthorized taking or driving. (Id. at p. 716.) The issue before the Supreme Court involved the application of section 654 and whether the defendant could be punished for both offenses. (Id. at pp. 713, 714.) The court held: "Insofar as they relate to a single act of taking an automobile without the permission of the owner, section 503 of the Vehicle Code and section 487 of the Penal Code may subject the offender to but one punishment." (Id. at p. 714.) We note, however, that there is language in the opinion that conflates the concepts of conviction and punishment. (Id. at pp. 714-716.) The Kehoe court relied on the pleadings and noted that the information alleged the taking and the unauthorized driving occurred on the same day in Humboldt County. The court held that "in the absence of any evidence showing a substantial break between [the defendant's] taking and his use of the automobile in that county, only the conviction for one offense may be sustained." (Id. at p. 715.) To borrow language from Strong, the defendant in Kehoe was charged with "unlawfully taking" the car and "unlawfully driving [it] as part of the original taking." (Strong, supra, 30 Cal.App.4th at p. 376.)
People v. Diaz (1989) 212 Cal.App.3d 745, 750. --------
Concurring in the judgment in Kehoe, Justice Carter opined that People v. Cuevas (1936) 18 Cal.App.2d 151 was unsound and should be disapproved. (Kehoe, supra, 33 Cal.2d at p. 716.) In Cuevas, the Court of Appeal held—on "evidence quite different from that in" Kehoe—that the defendant's posttheft driving was "entirely separate and disconnected from the original theft." (Kehoe, at p. 715, quoting Cuevas, at p. 153.) Justice Carter disagreed with Cuevas and opined that "Where there is a continuous transaction from the first driving of the vehicle, there should not be a new offense each day the [stolen] car is driven" because "[t]o so hold [renders] such an offender susceptible to a greater penalty than the theft of a car which plainly was not the intent of the Legislature." (Id. at p. 716.)
This case is procedurally and factually distinguishable from Kehoe. Unlike Kehoe, which alleged the taking and the unauthorized driving occurred on the same day in the same county, the amended information here alleged a taking on June 15 and unauthorized driving weeks later on August 6. At trial, there was evidence that the car was stolen from Santa Cruz, that defendant drove the car three times before August 6 to haul wood on his property in Boulder Creek, and that on August 6, he was driving from his home in Boulder Creek to San José to visit a friend. The August 6 trip "was in an entirely different location and obviously for purposes unconnected with the original taking." (Malamut, supra, 16 Cal.App.3d at p. 242.) Defendant's driving on August 6 also met the two possible tests described in Garza: (1) it was not "part of a ' "continuous journey away from the locus of the theft" ' " and (2) the taking was complete since defendant had reached a place of temporary safety when he got the car to his property. (Garza, supra, 35 Cal.4th at pp. 880-881, original italics.) Although the Garza court did not decide the exact point in time when the taking of a vehicle ends, it had clearly ended in this case.
Furthermore, the speculative possibility of disparate punishment illustrated by defendant's hypothetical (six counts of posttheft driving based on six acts of unlawful driving in a single day) and discussed in Justice Carter's concurrence in Kehoe is not present in this case. Defendant was charged with and convicted of one count of grand theft auto and one count of unlawful posttheft driving. He was not charged with multiple counts of posttheft driving (i.e., for each day that he possessed the car or for the four times he admitted driving it after the theft). Appellate courts generally do not address issues whose resolution is unnecessary to the disposition of the appeal. (See Palermo v. Stockton Theatres, Inc. (1948) 32 Cal.2d 53, 65; Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 259.)
Finally, we note that the facts here are very similar to those in Garza, where the court construed the defendant's Vehicle Code section 10851(a) conviction as one for posttheft driving. Deputy Colla, like the officer in Garza, found defendant sitting in the driver's seat of a car that had been reported stolen seven weeks earlier, with the key in the ignition and the engine running. There was no one else in the car and defendant admitted he had driven the car there. (Garza, supra, 35 Cal.4th at p. 882.) In Garza, the court held on very similar facts that the "theft of the vehicle six days earlier was long since complete, and the driving therefore constituted a separate, distinct, and complete violation of section 10851(a)." (Ibid.) Likewise, the theft of the car in this case seven weeks earlier was a separate and distinct crime from defendant's posttheft driving on August 6.
For these reasons, we conclude the trial court did err when it convicted defendant of both grand theft auto and posttheft driving.
II. Defendant's Challenge to the No-Marijuana Condition of Probation is Moot
A. Background
At sentencing, the court commented that there had been a "dramatic change" in defendant's physical appearance and "emotional demeanor" since the trial two months earlier, that defendant looked "ten years younger" and "far healthier." Defense counsel stated that during trial, defendant looked "gaunt" and was not eating much, and that while in custody, defendant had been prescribed an anti-depressant—which helped him—and had gained weight. The court opined that while the changes may be due to the anti-depressant, they were also due to the fact that while in custody, defendant did not have access to his drug of choice, which the evidence suggested was methamphetamine.
In imposing the drug condition of probation, the court ordered that defendant "not knowingly possess or use any illegal drugs or illegal controlled substances," including marijuana. The court also stated, "and even if you have a medical marijuana card, I will reserve jurisdiction over that specific term and condition of probation. I will indicate that it is modifiable by me only and that if you want to supply me with a doctor's note from . . . the physician who is currently treating you for the condition for which you use medical marijuana, I will consider modifying that . . . condition of probation." The court also stated, "but what I'm telling you very clearly is I am going to retain jurisdiction over that term and condition, sir. I think it is better for you not to use marijuana. If there is a medical condition that I don't know about . . . , I'll consider modifying it as long as I get a note from the physician who is treating you for the condition . . . ."
B. Mootness
In his opening brief, defendant asked this court to strike the court's order reserving exclusive jurisdiction to the trial judge to modify the no-marijuana condition of probation. Citing People v. Osslo (1958) 50 Cal.2d 75, defendant argued that jurisdiction is vested in the court, not a particular judge of the court. Indeed, in Osslo, the Supreme Court held: "An individual judge (as distinguished from a court) is not empowered to retain jurisdiction of a cause. The cause is before the court, not the individual judge of that court, and the jurisdiction which the judge exercises is the jurisdiction of the court, not of the judge. Rules of court which provide that post-trial proceedings in a cause shall be heard by the judge who tried the matter are entirely proper, but the individual judge cannot order that such proceedings must be heard by him [or her]." (Id. at p. 104; see also Leonard Carder, LLP v. Patten, Faith & Sandford (2010) 189 Cal.App.4th 92, 99 [" 'Jurisdiction lies in the court and not a particular judge' " and quoting text from Osslo].)
The Attorney General concedes that the portion of the no-marijuana condition of probation that reserves jurisdiction to the individual trial judge must be stricken. However, the Attorney General also asserts this issue may be moot, since defendant's probation was revoked in March 2016.
In August 2016, the trial judge, the Honorable JoAnne McCracken, provided this court with a copy of the reporter's transcript of the March 18, 2016 hearing on defendant's alleged violation of probation. The Attorney General subsequently filed a motion to augment the record on appeal to include the transcript of that hearing, which this court granted. On September 27, 2016, we received a letter from defendant's appellate counsel advising us that this issue "might now be moot."
According to the transcript of the March 18, 2016 hearing, defendant was charged by petition with three violations of probation. The nature of the violations is not clear from the record; however, the reporter's transcript suggests one ground was that defendant "simply . . . never reported to probation." At the hearing, defendant admitted that he was in violation of his probation. The court found the allegation that defendant had violated probation true; sentenced him on the probation violation to nine months in jail, with no early release program, and ordered that probation would terminate upon defendant's release from jail. According to defendant's appellate counsel, defendant has completed his nine-month sentence on the probation violation.
Where there are no prejudicial collateral consequences that a successful appeal could ameliorate, the appellate court will dismiss the appeal as moot. (6 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Criminal Appeal, § 188, p. 473, citing North Carolina v. Rice (1971) 404 U.S. 244.) Generally, the expiration or termination of probation renders an appeal challenging a condition of probation moot. (People v. Carbajal (1995) 10 Cal.4th 1114, 1120, fn. 5 (Carbajal); In re R.V. (2009) 171 Cal.App.4th 239, 245 (R.V.).) Neither party has asked us to exercise our discretion to consider the propriety of the order at issue on the grounds that the issue is one of broad public interest, that is likely to recur, or that the same controversy is likely to recur between the parties. (See e.g., Carbajal, at p. 1120, fn. 5; R.V., at p. 245; see also In re Anna S. (2010) 180 Cal.App.4th 1489, 1498.) Since defendant's probation has ended, we shall dismiss the appeal as to the second issue challenging the propriety of Judge McCracken's order reserving jurisdiction to her personally to modify the no-marijuana condition of probation.
III. The trial court's order imposing eight months in jail as a condition of probation was not an unauthorized sentence.
Defendant contends the trial court erred when it imposed an eight-month concurrent sentence on count 5, which alleged possession of controlled substance paraphernalia (former Health & Saf. Code, § 11364.1). He argues the offense is a misdemeanor subject to a maximum possible sentence of six months and that the unauthorized sentence in this case must be corrected.
Defendant is mistaken. The trial court expressly suspended imposition of sentence as to each count, including count 5, and granted probation on the condition that defendant spend eight months in jail. Thus, the jail term here was imposed as a condition of probation, not a separate sentence. (People v. Banks (1959) 53 Cal.2d 370, 385, fn. 8 ["requiring service of some time in a county jail as a condition of probation does not constitute imposition of sentence to a county jail"], superseded by statute on another point as stated in People v. Park (2013) 56 Cal.4th 782, 792-793.)
In his reply brief, defendant argues that a jail term imposed on a particular count as a condition of probation cannot exceed that maximum term permitted for that count, which is six months as to count 5. Defendant cites section 1203.1, subdivision (a), which provides in relevant part: "The court, . . . , in the order granting probation and as a condition thereof, may imprison the defendant in a county jail for a period not exceeding the maximum time fixed by law in the case." In this case, the court did not impose the eight-month condition of probation as a condition attached to count 5 or to any other particular count. Instead, it imposed eight months as a condition of probation for all four counts of which defendant had been convicted. According to the prosecution, defendant was facing a sentence of at least four years in prison when he was granted probation. Thus, the eight months imposed here was not in excess of the "maximum time fixed by law in the case."
Although the trial court imposed eight months in jail as a condition of probation in its oral pronouncement, that condition is described in the court's minute order as eight months on count 1, plus eight months concurrent on counts 2, 4, and 5. As a general rule, when there is a discrepancy between the minute order and the oral pronouncement of judgment, the oral pronouncement controls. (People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2.) The California Supreme Court has also stated that "a record that is in conflict will be harmonized if possible," but if the reporter's transcript and the clerk's transcript—the minute order in this case—cannot be reconciled, we do not automatically defer to the reporter's transcript, but rather adopt the transcript that should be given greater credence under the circumstances of the particular case. (People v. Harrison (2005) 35 Cal.4th 208, 226; see also People v. Rodriguez (2013) 222 Cal.App.4th 578, 586-587, disapproved on another ground in People v. Hall (2017) 2 Cal.5th 494, 503, fn.2, and People v. Pirali (2013) 217 Cal.App.4th 1341, 1346.) There is nothing in the record that supports the imposition of concurrent eight-month jail terms on each count as a condition of probation as stated in the minute order. We therefore conclude that the court's oral pronouncement should be given greater credence than the minute order and will order the minute order corrected to conform to the court's oral pronouncement.
DISPOSITION
The appeal is dismissed as to the second issue challenging Judge McCracken's order reserving jurisdiction to her personally to modify the no-marijuana condition of probation. As for the remaining issues, the judgment is affirmed. The clerk of the superior court is directed to prepare an amended minute order of the sentencing hearing on March 27, 2015, which states that a single term of eight months in jail was imposed as a condition of probation on counts 1, 2, 4, and 5, and not separate, concurrent eight-month terms on each count.
/s/_________
RUSHING, P.J. WE CONCUR: /s/_________
PREMO, J. /s/_________
GROVER, J.