Opinion
C082692
11-14-2017
THE PEOPLE, Plaintiff and Respondent, v. GARRISON FICKENWORTH, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15F04462)
A jury convicted defendant Garrison Fickenworth of unlawful taking or driving of a vehicle (count 1) and receiving a stolen vehicle (count 2). The trial court sentenced him to 11 years in state prison consisting of the following: the upper term of four years on count 1, doubled for a prior strike conviction, plus three years for three prior prison terms. The trial court imposed but stayed sentence on count 2 pursuant to Penal Code section 654.
Undesignated statutory references are to the Penal Code. --------
Defendant now contends (1) his conviction for receiving a stolen vehicle must be vacated because the trial court failed to instruct the jury that he could not be convicted of stealing and receiving the same vehicle; and (2) the matter must be remanded for resentencing because the trial court failed to state reasons for choosing the upper term on the conviction for unlawful taking or driving of a vehicle; but if defendant's failure to object at sentencing forfeited this contention, defendant received ineffective assistance of counsel.
We will affirm the judgment.
BACKGROUND
The victim discovered in 2015 that his 1994 Honda Accord was missing. The car had front and back license plates before it disappeared and the victim had the only key. The victim reported the car stolen. He did not know defendant and did not try to sell the car to defendant or anyone else.
Sacramento Police Officer Tera Carson saw defendant driving a 1994 Honda Accord without a front license plate and stopped the car. Officer Carson observed that the car's steering column was "peeled," meaning that the plastic underneath the column had been removed and the wires and ignition hung down, which allowed the car to be driven without a key. To turn the car off, defendant reached into the back seat and grabbed a screwdriver-like tool. He said he did not have a driver's license. The car's vehicle identification number (VIN) did not match the license plate on the car; instead it matched a license plate the officers found in the trunk, for the vehicle owned by the victim.
Retired Sacramento Police Officer Glen Kinion testified that on June 12, 2007, he stopped a pickup truck driven by defendant because a headlight was out. The steering column was peeled, and Officer Kinion found a screwdriver on defendant's person. Defendant was arrested "for the stolen vehicle." Defendant admitted prior convictions for violation of Vehicle Code section 10851, subdivision (a) [unlawful taking or driving of a vehicle] in 2007 and 2009, and for second degree burglary in 2002.
During a taped telephone conversation in jail after his arrest, defendant told a friend, " 'I'm not going to steal no more cars. The only reason why I was stealing cars is so I can spend time with you.' " But defendant testified he did not steal the victim's car and did not know or have reason to think it was stolen. He said he bought the car for his friend.
The prosecutor argued to the jury that with regard to count 1, the elements of the crime were that defendant took or drove somebody else's vehicle without the owner's consent. The prosecutor said he did not have to prove that defendant stole the car, just that he was driving a stolen car. Nevertheless, the prosecutor argued defendant stole the car based on his admission in the recorded conversation, among other things.
Defense counsel countered that the prosecutor was "almost conceding the fact that they don't have proof beyond a reasonable doubt that [defendant] stole the car. [¶] But what they are alleging was that he was driving a car knowing it was stolen." Defense counsel said that satisfied the elements for both counts in terms of intent.
DISCUSSION
I
Defendant contends the trial court erred by failing to instruct the jury that a person cannot be convicted both of stealing a car and of receiving the stolen car. The Attorney General agrees, but asserts the error was harmless. We agree the error was harmless.
A defendant may not be convicted of stealing and receiving the same property. (§ 496, subd. (a); People v. Jaramillo (1976) 16 Cal.3d 752, 757, superseded by statute as stated in People v. Hinks (1997) 58 Cal.App.4th 1157, 1161.) Therefore, the trial court must so instruct the jury when the pleadings and the evidence raise the possibility of such a prohibited dual conviction. (People v. Strong (1994) 30 Cal.App.4th 366, 376.) However, Vehicle Code section 10851, subdivision (a) (Vehicle Code section 10851(a)) punishes not only unlawfully taking a vehicle but also unlawfully driving a vehicle after it has been taken (that is, without the owner's consent and with the intent to deprive the owner of possession either permanently or temporarily). Dual convictions are permissible if the Vehicle Code section 10851(a) conviction is for posttheft driving of the vehicle. (People v. Garza (2005) 35 Cal.4th 866, 871-872, 876, 881 (Garza).)
As the California Supreme Court explained, we are guided by certain principles in our analysis. (Garza, supra, 35 Cal.4th at p. 881.) On appeal a judgment is presumed correct and a party attacking the judgment must affirmatively demonstrate prejudicial error. (Ibid.) On a claim for misdirection of the jury, defendant must show a miscarriage of justice. (Id. at pp. 881-882 [applying the standard under People v. Watson (1956) 46 Cal.2d 818, 836].) We consider whether it is reasonably probable that a properly instructed jury would have reached a result more favorable to defendant by not finding him guilty of both stealing the vehicle and driving the stolen vehicle. (Garza, at p. 882.)
Here, as in Garza, defendant was found driving the car days after its original theft, which made the act a separate and distinct violation of Vehicle Code section 10851(a). (Garza, supra, 35 Cal.4th at pp. 872, 882.) That the car had a stripped steering column and could be started only with a screwdriver-like tool, and that defendant was previously convicted of a Vehicle Code section 10851(a) violation under identical circumstances, created a powerful inference that whether or not defendant stole the car, he knew it had been stolen and intended to deprive the owner of its possession. And as in Garza, the prosecutor argued both theft and unlawful driving to the jury without making an election between them. (Garza, at p. 871.) It is not reasonably probable that a properly instructed jury would have found defendant guilty of stealing the car but not of driving it unlawfully after the theft. (Cf. Id. at p. 882.)
Defendant asserts that his conviction on this count was "most likely for stealing" because the prosecution relied heavily on the jail phone call in which he talked about stealing cars and his prior convictions for that crime, and also because of "the complete absence, in the prosecution's case, of any direct evidence that [defendant] obtained the vehicle by any means other than stealing it." But such speculation is not enough to overcome the presumption that the judgment is correct or to show a miscarriage of justice. (Garza, supra, 35 Cal.4th at pp. 881-882.)
II
Defendant next contends the trial court erred by failing to state reasons for imposing the upper term on count 1, and that if the contention is forfeited by failure to object at the time of sentencing, defendant received ineffective assistance of counsel.
At sentencing, the trial court denied defendant's request to dismiss a strike without stating reasons. However, the trial court had previously indicated it was unlikely to grant such a request because defendant had incurred a long criminal history since the strike offense. Thus, we infer the court found defendant was not outside the spirit of the three strikes law. (Cf. People v. Williams (1998) 17 Cal.4th 148, 161.)
The prosecutor argued that defendant should receive the upper term "given the continuous criminal conduct, given the fact that he was on [postrelease community supervision] and another grant of probation at the time this crime was committed, and that his prison priors should be used against him at this time as well."
Defense counsel argued for unquantified "leniency," asserting that defendant had not been a gang member for a long time (to which the trial court replied that that was irrelevant under the sentencing criteria), had job skills, and could become a productive member of society.
The trial court ruled: "It is the judgment and sentence of this Court that for a violation of Penal Code [sic] section 10851(a), with the allegation [of defendant's prior Vehicle Code section 10851(a) convictions] pursuant to Penal Code section 666.5[, subdivision] (a) having been found true, the defendant is sentenced to the high term of four years in state prison." The trial court later stated that it was striking defendant's fifth prior conviction (for a felony violation of Health and Safety Code section 11377, since reduced to a misdemeanor) under section 1385, but was "using that as one of the many factors I'm utilizing in imposing a higher term under [California Rules of Court, rule 4.420(c)]." Defense counsel did not object to the upper term sentence.
When making sentencing decisions, trial courts have wide discretion in weighing aggravating and mitigating factors. (People v. Avalos (1996) 47 Cal.App.4th 1569, 1582.) A single valid aggravating factor justifies the upper term. (People v. Black (2007) 41 Cal.4th 799, 815.) The court may rely on any aggravating circumstances reasonably related to its sentencing decision (People v. Sandoval (2007) 41 Cal.4th 825, 848) and need not explain its reasons for rejecting alleged mitigating circumstances (Avalos, at p. 1583). We review the court's sentencing choices for abuse of discretion. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.)
The Attorney General asserts that defendant's attack on the sentence is forfeited because he did not object to the trial court's "failure to properly make or articulate its discretionary sentencing choices." (People v. Scott (1994) 9 Cal.4th 331, 353.) However, as defendant points out, the California Supreme Court held that this forfeiture rule applies only if the trial court gave the parties a "meaningful opportunity to object" by describing its intended sentence and stating its reasons before actually imposing sentence. (People v. Gonzalez (2003) 31 Cal.4th 745, 752.) Here, the trial court did not do so. And because defendant waived a probation report, there was no recommended sentence that defendant could have anticipated the trial court might impose. Defendant's contention is not forfeited.
We conclude, however, that the contention fails on the merits. As defendant acknowledges, the trial court's failure to state reasons for its sentence is harmless if it is not reasonably probable the defendant would have received a more favorable outcome absent the error. (People v. Champion (1995) 9 Cal.4th 879, 934; People v. Tillotson (2007) 157 Cal.App.4th 517, 545.) Here, the trial court stated a factor justifying the upper term: the prior conviction alleged as an enhancement but stricken at sentencing. (Cal. Rules of Court, rule 4.420(c).) The prosecutor stated three separate factors in aggravation also justifying the upper term: defendant's "continuous criminal conduct," his status as a probationer on postrelease community supervision at the time of the offenses, and his prior prison terms. (Cf. id. at rule 4.421(b)(2), (3), (5).) All are amply supported by the record. Thus, it is not reasonably probable defendant would have received a more favorable outcome had the court realized it needed to state reasons for the upper term.
DISPOSITION
The judgment is affirmed.
/S/_________
MAURO, J. We concur: /S/_________
HULL, Acting P. J. /S/_________
DUARTE, J.