Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. 06F10564, 04F05909
HULL, J.
In case No. 06F10564, a jury convicted defendant Francisco Banuelos of unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a)--count three) and receiving stolen property (Pen. Code, § 496d, subd. (a)--count four; undesignated statutory references that follow are to the Penal Code). The trial court found that he had suffered two prior stolen vehicle convictions (§ 666.5, subd. (a)) and a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12).
In case No. 04F05909, the trial court found that defendant violated his probation by failing to obey all laws.
Defendant was sentenced to state prison for six years in case No. 06F10564 and two years concurrent in case No. 04F05909. The six year term consisted of the middle term of three years on count three, doubled for the prior strike. A six year term on count four was stayed pursuant to section 654.
On appeal, defendant contends: (1) the jury instruction on receiving stolen property (CALCRIM No. 1750) erroneously omitted the complete definition of theft and erroneously told the jury that property is stolen if it was obtained by burglary, and (2) the stayed prison term on count four must be reduced from six years to four years; the Attorney General concedes the point. We shall modify the judgment.
Facts and Proceedings
In October 2006, Vicki Current owned a 1997 Toyota Corolla. On October 29, the car was parked at her apartment complex and its doors were locked. The next morning, Current discovered that her car was missing. She had not given anyone permission to borrow the car, and the car keys were still in her possession.
On December 4, 2006, Officer Darren Schillizzi of the Sacramento County Sheriff’s Department, assigned to the Rancho Cordova City police, was on patrol in a high crime area of the city. At 11:26 p.m., he saw a car without illuminated headlights driving through an apartment complex. The car left the complex, entered a public street, drove off at high speed with neither headlights nor taillights illuminated, and attempted to evade Schillizzi who was in pursuit. The car had no license plates, which indicated it could be stolen. Defendant, the driver, was wearing cloth gloves. After the car was stopped, Schillizzi noticed that the key in the ignition switch had been “shaved,” or altered, a practice commonly used to steal vehicles. He also noticed a second ignition switch, which was the one being used to operate the car. Using the car’s VIN number, Schillizzi determined that the car had been reported stolen.
Discussion
I
Claimed Instructional Error
Defendant contends his count four receiving stolen property conviction must be reversed because the trial court (1) failed to instruct the jury on the elements of theft, and (2) broadened the definition of “receiving” to include property obtained by burglary. Neither claim has merit.
The trial court instructed the jury with a modified version of CALCRIM No. 1750, which provided in relevant part:
“The defendant is charged in counts 2 and 4 with receiving stolen property. [¶] To prove that the defendant is guilty of this crime, the People must prove that:
“1. The defendant received, concealed or withheld from its owner; aided in concealing or withholding from its owner property that had been stolen; and
“2. When the defendant received, concealed or withheld/aided in concealing or withholding the property, he knew that the property had been stolen. [¶] Property is stolen if it was obtained by any type of theft or by burglary.”
The bench notes to CALCRIM No. 1750 state in part: “If there are factual issues regarding whether the received stolen property was taken with the intent to permanently deprive the owner of possession, the court has a sua sponte duty to instruct on the complete definitions of theft. People v. MacArthur (2006) 142 Cal.App.4th 275.” (Bench Note to CALCRIM No. 1750 (2008) p. 1190.)
In this case, the evidence showed without contradiction that the car had been taken with the intent to permanently deprive Current of possession; no factual issue remained for the jury to resolve. Current never gave anyone permission to borrow the car; she still had the only keys to the car; and she reported the theft to law enforcement. When defendant was caught driving the car more than a month later, a shaved key was present in the non-functioning ignition switch and the car was being operated through a second ignition switch. There was no evidence that anyone involved with the taking or retention of the car intended to return it to Current at any time. Unlike People v. McArthur, supra, 142 Cal.App.4th 275, in which the jury had “no basis for determining whether the [property] had been stolen” (id. at p. 281), in this case there was no basis for the jury to conclude that Current’s car had not been stolen. In particular, there was no basis for the jury to deduce that the taker, who had substantially altered the ignition system, had any intention of returning the car to its rightful owner.
Defendant notes that his plea of not guilty placed every element of the charged offense at issue. (§ 1019.) In response to the plea, the People presented evidence that uniformly showed intent to permanently deprive and raised no inference of contrary intent. The defense rested without presenting evidence. Thus the evidence did not raise any factual issue requiring a sua sponte MacArthur instruction. (People v. MacArthur, supra, 142 Cal.App.4th 275.)
Defendant claims the trial court erred by failing to tell the jury that he could not be convicted of violation of section 496d unless it found that the received property was a motor vehicle. We shall assume for present purposes that defendant is correct.
It was undisputed that the subject of count four was the Toyota Corolla. As the prosecutor told the jury in summation, “Count Thee [sic], the defendant is charged with driving a stolen car, and Count Four, possession of and receiving stolen property in that he was driving the Toyota Corolla that belonged to Vicki Current.” The jury had no basis to suspect that a Toyota Corolla is not a motor vehicle. There is no reasonable probability of a more favorable outcome had the jury been told that count four required the received property to be a motor vehicle. (People v. Breverman (1998) 19 Cal.4th 142, 149, 177; People v. Watson (1956) 46 Cal.2d 818, 836.)
As noted, CALCRIM No. 1750 told the jury that “Property is stolen if it was obtained by any type of theft or by burglary.” As authority for the word “burglary,” CALCRIM cites People v. Candiotto (1960) 183 Cal.App.2d 348, in which “the parties whose homes had been burglarized . . . identified certain of the articles stolen from their respective residences.” (Id. at p. 349; see Authority to CALCRIM No. 1750 (2008) p. 1191.) Here, in contrast, Current’s car had been taken from a parking lot, and the prosecutor did not theorize that the locked car had been burglarized in order to steal it.
Defendant finds the trial court’s failure to delete the word “burglary” to be “particularly troubling.” We agree that the court has a duty to refrain from instructing the jury on principles of law that are irrelevant. (E.g., People v. Strunk (1995) 31 Cal.App.4th 265, 271.) But the extraneous instruction could not have been prejudicial. Even if the jurors had been confused as to whether the car had been obtained by burglary, they had no basis to doubt that the car had been obtained by theft. We have already explained that the evidence raised no issue as to whether the deprivation of the car was intended to be temporary as opposed to permanent. On this record, there is no reasonable probability of a more favorable outcome had the word “burglary” been omitted. (People v. Breverman, supra, 19 Cal.4th at pp. 149, 177; People v. Watson, supra, 46 Cal.2d at p. 836.)
II
The Sentence on Count Four
Defendant contends, and the Attorney General concedes, the stayed state prison sentence on count four must be modified to four years. We accept the Attorney General’s concession.
In sentencing defendant on count four, the trial court stated its intent to “commit the defendant to state prison for the midterm of three years, times two, pursuant to 667(e)(1) of the Penal Code for a total term of six years, stayed pursuant to Penal Code section 654.” However, the midterm for a violation of section 496d is two years, not three years. (§ 496d, subd. (a).) We shall modify the judgment to impose a stayed second-strike sentence of four years.
Disposition
The judgment is modified to impose a four-year state prison term on count four, stayed pursuant to section 654. As so modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
We concur: SIMS , Acting P.J., DAVIS , J.