Opinion
D064986
02-27-2017
THE PEOPLE, Plaintiff and Respondent, v. TORY J. CORPENING, Defendant and Appellant.
Cynthia M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Scott C. Taylor, Robin Urbanski, Barry Carlton and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCS258343) APPEAL from a judgment of the Superior Court of San Diego County, Frances M. Devaney, Judge. Reversed in part and remanded with directions. Cynthia M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Scott C. Taylor, Robin Urbanski, Barry Carlton and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
This is the third time this matter has come before us. Tory J. Corpening entered guilty pleas to carjacking (count 1; Pen. Code, § 215, subd. (a)); robbery (count 2; § 211); assault with a deadly weapon (count 3; § 245, subd. (a)(1)); receiving stolen property (count 4; § 496, subd. (a)); and witness intimidation (count 7; § 136.1, subd. (a)(1)).
All further statutory references are to the Penal Code unless otherwise specified.
Corpening filed a motion to withdraw his guilty plea, which was denied after an evidentiary hearing. He was thereafter sentenced to a determinate term of six years eight months in prison.
Corpening appealed, contending the trial court erred in imposing a one-year consecutive term for the robbery in count 2. He argued section 654 bars such sentence because the carjacking and the robbery were committed by a single act with a single purpose. He also insisted the court erred in imposing a stayed sentence for receiving stolen property in count 4 because a person cannot be convicted of robbery and receiving the stolen property taken from the robbery. The People correctly agreed with the latter contention.
In an unpublished opinion filed October 21, 2014, we dismissed the receiving stolen property conviction and otherwise affirmed the judgment as modified.
On February 11, 2015, the Supreme Court granted review and transferred the case to us with directions to reconsider our opinion in light of People v. Jones (2012) 54 Cal.4th 350 (Jones).
We received additional briefing and reconsidered our opinion in light of Jones, supra, 54 Cal.4th 350. After again reviewing the record, we again affirmed the judgment as modified with directions to dismiss the receiving stolen property conviction in an unpublished opinion filed June 24, 2015.
On September 30, 2015, the Supreme Court granted review regarding the section 654 issue. On December 29, 2016, the court issued its opinion. (See People v. Corpening (2016) 2 Cal.5th 307 (Corpening).) In that opinion, the court reversed our June 24, 2015 opinion. In doing so, our high court concluded that Corpening could not be sentenced for both carjacking a van and robbing the driver of the rare coins the van contained because "the forceful taking of [the] van, and the rare coins contained therein, completed the actus reus for robbery" and carjacking. (Id. at pp. 313-314.) The court also noted that "[i]t was the same show of force—committed at the same time, by the same person—that yielded for Corpening and his coconspirators the rare coins contained within the carjacked van, giving rise to the robbery conviction." (Id. at p. 314.) The court did not address our reversal of Corpening's conviction for receiving stolen property (count 4). However, the court remanded the matter for proceedings consistent with its opinion. (Id. at p. 317.)
The Supreme Court issued a remittitur on January 31, 2017. Because this matter has involved multiple appeals over a period of three years, we issue this brief opinion to clarify how the superior court is to proceed.
Because of the limited nature of this opinion, we need not repeat any factual background relating to Corpening's crimes. Our high court provides the relevant background in Corpening, supra, 2 Cal.5th at pages 309 through 311. --------
The Supreme Court's original grant of review on February 11, 2015, its subsequent transfer of the case back to us to reconsider our opinion in light of Jones, supra, 54 Cal.4th 350, and its opinion in Corpening, supra, 2 Cal.5th 307 do not address count 4 (receiving stolen property) whatsoever. As such, our reversal for that conviction still stands. We thus adopt and follow Corpening, supra, 2 Cal.5th 307 in its entirety.
DISPOSITION
The conviction for receiving stolen property (count 4) is reversed. Consistent with Corpening, supra, 2 Cal.5th 307, Corpening's one-year robbery sentence must be stayed. This matter is remanded to the superior court for proceedings consistent with this opinion. The superior court is ordered to modify the abstract of judgment consistent with this opinion and forward same to the Department of Corrections and Rehabilitation.
/s/_________
HUFFMAN, J. WE CONCUR: /s/_________
BENKE, Acting P. J. /s/_________
HALLER, J.