Opinion
B296850
03-11-2020
THE PEOPLE, Plaintiff and Respondent, v. RICHARD DOUGLAS ELLIS II, Defendant and Appellant.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Assistant Attorney General, Idan Ivri and William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. KA114021) APPEAL from the judgment of the Superior Court of Los Angeles County. Juan C. Dominguez, Judge. Affirmed in part; reversed and dismissed in part. John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Assistant Attorney General, Idan Ivri and William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendant and appellant Richard Douglas Ellis II was jointly charged with four codefendants with multiple felonies arising from the theft of two cargo containers from a shipping container storage facility called Port Logistics Group in the City of Industry. None of the codefendants is a party to this appeal.
During the theft, two security guards at the facility (Daniel Contreras and Luis Marquez) were tied up at gunpoint and robbed of personal property. Defendant and his accomplices stole two cargo containers being stored at the facility. One of the containers held merchandise (clothing) with a wholesale value in excess of $200,000 belonging to the Jeanswear Group. The other contained purses with a wholesale value of approximately $150,000 belonging to the Trebbiano Group. Defendant and his accomplices fled the scene, towing the containers, but were apprehended shortly thereafter.
After a jury trial, defendant was found guilty of two counts of robbery (Pen. Code, § 212.5, subd. (c) [counts 1, 2]) and two counts of false imprisonment (§ 236 [counts 3, 4]) related to the attack on the two security guards. Defendant was also found guilty of two counts of grand theft of cargo in excess of $950 (§ 487h [counts 8, 9]) and conspiracy to commit a crime (§ 182, subd. (a)(1) [count 17]). As to counts 8, 9 and 17, the jury found true the special allegation that defendant took, damaged or destroyed property having a value in excess of $200,000 (§ 12022.6, subd. (a)(2)).
The court sentenced defendant to state prison for six years, consisting of a five-year upper term on count 1 (robbery), the base term, and a consecutive one-year term (one-third the midterm) on count 2 (robbery). The court imposed and stayed concurrent two-year terms on counts 3 and 4 (false imprisonment), and counts 8 and 9 (cargo theft), as well as two-year enhancements on counts 8 and 9. The court also imposed and stayed a concurrent three-year term on count 17 (conspiracy). Defendant was awarded a total of 57 days of presentence custody credits and was ordered to pay various fines and fees.
Defendant contends the theft of the two cargo containers constituted only one theft under the single larceny doctrine and therefore either count 8 or count 9 must be reversed. Respondent concedes the theft of the two cargo containers during the course of a single, indivisible act of theft supports only one theft conviction.
We agree. The record demonstrates only one violation of Penal Code section 487h resulting in the theft of two cargo containers. Port Logistics Group, the identified victim in both count 8 and count 9, was in lawful possession of both cargo containers at the time of the theft. It matters not that the merchandise in each container was owned by two separate businesses.
Our Supreme Court has explained that "the theft of several articles at the same time constitutes but one offense although such articles belong to several different owners. [Citations.] . . . [Citation.] If the rule were otherwise a burglar who entered an empty house and took numerous articles belonging to one person could be punished for only one offense, but if some of the articles belonged to each of the other members of the family, the burglar could be given consecutive sentences for as many offenses as there are members of the family." (People v. Bauer (1969) 1 Cal.3d 368, 378; see also (People v. La Stelley (1999) 72 Cal.App.4th 1396, 1400 [" ' "When a defendant steals multiple items during the course of an indivisible transaction involving a single victim, he commits only one robbery or theft notwithstanding the number of items he steals." ' "]; People v. Gamble (1994) 22 Cal.App.4th 446, 451 [" 'a defendant who steals various items by force or fear, in a continuing transaction, commits but one offense and the loot may not be splintered into separate counts of theft for purposes of multiple conviction' "]; People v. Brito (1991) 232 Cal.App.3d 316, 326 [same].)
Defendant's conviction on count 9 is reversed. Defendant concedes his remaining two contentions are moot in light of our decision to reverse one of the theft convictions. The judgment of conviction is affirmed in all other respects. Defendant's prison term of six years remains the same.
DISPOSITION
The conviction of defendant and appellant Richard Douglas Ellis II on count 9 (grand theft of cargo in violation of Pen. Code, § 487h) is reversed and the count is dismissed.
The judgment of conviction is affirmed in all other respects. The prison term of six years remains the same.
The superior court is directed to prepare an abstract of judgment consistent with this opinion and transmit same to the Department of Corrections and Rehabilitation.
GRIMES, Acting P. J.
WE CONCUR:
STRATTON, J.
WILEY, J.