Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SF099940A
SIMS, Acting P. J.Defendant Alaren Frazier committed a series of burglaries and vehicle thefts in Stockton over the course of nine days in April of 2006. One of those burglaries transformed into a home invasion robbery as defendant confronted 89-year-old Rosemary Sanchez in her bedroom and demanded cash and credit cards. Rather than comply with defendant’s demands, Rosemary reached for a cigar box on her nightstand which contained a loaded .38 caliber revolver. Before Rosemary could open the box to retrieve the gun, defendant grabbed the box and ran out of the house. One of the stolen vehicles was taken a week before the incident at Rosemary’s house. The other vehicle was taken two days after. Both occurred at different locations and involved different victims. The details of these and other crimes will be set out more fully below.
Defendant was tried by jury and found guilty on one count of first degree robbery, one count of first degree burglary, two counts of unlawful taking or driving a vehicle, five counts of receiving stolen property, and one count each of possession of methamphetamine, felon in possession of a firearm, and assault on a peace officer. The trial court sentenced defendant to 36 years to life in state prison (25 years to life on the first degree robbery (as a three-strike offender), plus 10 years for the two prior serious felony enhancements, plus an additional year for the elderly victim enhancement), and imposed other orders.
On appeal, defendant contends that one of his convictions for receiving stolen property must be reversed because California law bars conviction for robbery and for receiving the same property that was the subject of the robbery. We agree, and will reverse one of defendant’s receiving stolen property convictions. However, as we will explain more fully below, we must also remand for resentencing because the trial court was required by Penal Code section 667, subdivision (c)(6), to sentence defendant to consecutive terms of 25 years to life on at least one count of unlawful taking or driving a vehicle that was “not committed on the same occasion, and not arising from the same set of operative facts” as the robbery count which formed the basis of the principal term.
Undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
On the night of April 3, 2006, someone broke into the home of Pearl Saunders on Michigan Avenue in Stockton while she was doing laundry and paying her bills online. Pearl heard a “thump” coming from the back of the house, but thought nothing of it. A short time later, she discovered mud on the windowsill of her granddaughter’s bedroom and muddy footprints tracked across the floor. Pearl’s ATM card and the keys to her 2001 Acura had been on the hallway table next to the front door; they were gone. Her 2001 Acura had been parked in the driveway; it too was gone.
On the morning of April 10, 2006, defendant parked Pearl Saunders’s 2001 Acura in Rolando Rodriguez’s driveway on De Ovan Avenue in Stockton and walked to Rosemary Sanchez’s house on Christina Avenue, an adjacent street. Rosemary awoke to the sound of glass shattering in her bathroom. She sat up in bed, oriented herself towards the disturbance, and was greeted by defendant: “Bitch, I want you to give me those cards and money.” Rosemary explained to defendant that she did not have any cards or money. Defendant responded: “Well, then, I’ll just have to shoot you.” He stepped towards her, concealing an object Rosemary believed to be a gun in the sleeve of his hooded sweatshirt. Rosemary stood up and reached for a cigar box on her nightstand containing a loaded .38 caliber revolver; before she could open the box to retrieve the gun, defendant grabbed the box and ran out of the house.
Defendant returned to the Acura parked on De Ovan to find Rolando Rodriguez waiting for him with a pipe. Rolando had just returned home from work and discovered the Acura in his driveway. He was immediately suspicious. The driver’s side door was open; the keys were in the ignition, and Playstation game consoles were seated in the front passenger seat. Defendant approached holding the cigar box. When Rolando asked what he was doing there, defendant claimed to have been visiting a girlfriend down the street. Rolando did not believe defendant’s story, but eventually allowed him to leave in the Acura. The Acura was abandoned in Raul Rios’s driveway on East Anderson Street a short time later.
On the morning of April 12, 2006, Steven Ruiz awoke to find his front door wide open. Steven’s wallet, two dresser drawers containing various pieces of jewelry, the keys to his 1996 Plymouth van, and the van itself were missing. The van was abandoned later that morning at 8423 Kinross Way.
Shortly thereafter, a man wearing a white jacket with a red stripe down the sleeve was seen taking Sarah Cotta’s 2007 Chevy Tahoe from her driveway at 8407 Kinross Way. Sarah had just placed her purse in the Tahoe and returned to the house to collect her son and set the burglar alarm. She left the keys in the front door. While she was in the house, the keys were removed from the door. The Tahoe was subsequently removed from the driveway. Sarah watched as the man drove away with her vehicle, and then called the police.
A few hours later, Officers Darren Baldwin and Darren O’Reilly of the Stockton Police Department discovered the Tahoe pulling into an apartment complex on Sixth Street. When they stopped the vehicle, defendant fled on foot carrying a blue backpack. He was wearing the same white jacket with red stripe that Sarah Cotta saw on the man who stole the Tahoe hours before. Following a brief chase and struggle, police were able to apprehend defendant. Defendant was carrying .45 grams of methamphetamine in his pants pocket. The backpack contained the .38 caliber revolver taken from Rosemary Sanchez and several items belonging to Sarah Cotta. On the seat of the Tahoe, police discovered a key to Steven Ruiz’s Plymouth van and several items belonging to Steven. Also recovered were several items belonging to another victim, Soraya Palacio, who did not realize the items had been stolen until she received a phone call from police the following day.
Defendant was tried by jury and found guilty on one count of first degree robbery, one count of first degree burglary, two counts of vehicle theft, five counts of receiving stolen property, and one count each of possession of methamphetamine, felon in possession of a firearm, and assault on a peace officer. The jury also found: (1) three arming enhancements (attached to two counts of receiving stolen property and the possession of methamphetamine count) to be true; and (2) two elderly victim enhancements (attached to the robbery and burglary counts) to be true.
Defendant waived jury trial on two special allegations that he had previously suffered two serious felony convictions within the meaning of California’s Three Strikes law, as well as section 667, subdivision (a)(1). Following a bifurcated hearing on the issue, the trial court found these allegations to be true. The trial court sentenced defendant to 36 years to life in state prison (25 years to life on the first degree robbery (as a three strike-offender), plus 10 years for the two prior serious felony enhancements, plus an additional year for the elderly victim enhancement), and imposed other orders.
DISCUSSION
I
Defendant’s sole contention on appeal is that his conviction for receipt of the stolen .38 caliber revolver must be reversed because California law bars conviction for robbery and for receiving the same property that was the subject of the robbery. The Attorney General concedes that defendant’s conviction for receiving the stolen .38 caliber revolver must be reversed. We accept the concession and reverse the conviction.
After setting forth the elements of the crime of receiving stolen property, subdivision (a) of section 496 goes on to provide: “A principal in the actual theft of the property may be convicted pursuant to this section. However, no person may be convicted both pursuant to this section and of the theft of the same property.” (§ 496, subd. (a).) As our Supreme Court explained in People v. Smith (2007) 40 Cal.4th 483: “Common law has long established that ‘a person may not be convicted of [both] stealing and receiving the same property.’ [Citations.] The Legislature later codified this principle [in section 496, subdivision (a)]. [Citation.]” (Smith, supra, 40 Cal.4th at p. 522.) There, the court reversed Smith’s conviction for receiving stolen property where he was convicted of both stealing a gun and of receiving that gun as stolen property. (Ibid.)
In this case, defendant was convicted of the robbery of Rosemary Sanchez and of receiving the .38 caliber revolver that he feloniously took and carried away by means of force during the robbery. Accordingly, defendant’s conviction on the charge of receiving stolen property must be reversed.
II
The Attorney General requests that we remand the case for resentencing because the trial court was required by section 667, subdivision (c)(6), to sentence defendant to consecutive terms of 25 years to life on two counts of unauthorized taking or driving a vehicle that were “not committed on the same occasion, and not arising from the same set of operative facts” as the robbery count which formed the basis of the principal term of imprisonment. We conclude that the trial court’s sentence was not authorized by the three strikes law, and will remand for resentencing.
Additional Background Information
As already indicated, defendant was sentenced to 36 years to life in state prison (25 years to life on the first degree robbery of Rosemary Sanchez, plus 10 years for the two prior serious felony enhancements, plus an additional year for the elderly victim enhancement). The trial court also sentenced defendant to five concurrent terms of 25 years to life on two counts of unlawful taking or driving a vehicle (Pearl Saunders’s 2001 Acura and Sarah Cotta’s 2001 Tahoe), two counts of receiving stolen property (items belonging to Soraya Palacios and Steven Ruiz, respectively), and one count of being a felon in possession of a firearm. Finally, the court stayed terms of 25 years to life on the burglary count and three counts of receiving stolen property (the 2001 Acura, the 2001 Tahoe, and the .38 caliber revolver), and ordered the counts of possession of methamphetamine and assault on a peace officer stricken for purposes of sentence.
At the sentencing hearing, the court offered the following explanation for ordering concurrent, as opposed to consecutive, sentences of 25 years to life: “I just read a case this week, you can run 25 years concurrent on two strikes.”
Analysis
Section 667, subdivision (c)(6), provides: “If there is a current conviction for more than one felony count not committed on the same occasion, and not arising from the same set of operative facts, the court shall sentence the defendant consecutively on each count pursuant to subdivision (e).” (Emphasis added.)
As our Supreme Court explained in People v. Lawrence (2000) 24 Cal.4th 219, 233 (Lawrence): “We read the mandatory consecutive-sentencing provision of the three strikes law as follows: If there are two or more current felony convictions ‘not committed on the same occasion,’ i.e., not committed within close temporal and spacial proximity of one another, and ‘not arising from the same set of operative facts,’ i.e., not sharing common acts or criminal conduct that serves to establish the elements of the current felony offenses of which defendant stands convicted, then ‘the court shall sentence the defendant consecutively on each count’ pursuant to subdivision (c)(6).” (Id. at p. 233; People v. Hendrix (1997) 16 Cal.4th 508, 513 (Hendrix) [“Subdivision (c)(6) mandates consecutive sentencing for any current felony not committed on the same occasion, and not arising from the same set of operative facts. Consecutive sentencing is not mandated under subdivision (c)(6) if the current felonies are committed on the same occasion or arise from the same set of operative facts”]; People v. Deloza (1998) 18 Cal.4th 585, 595 (Deloza) [the “same occasion” requirement “refers at least to a close temporal and spatial proximity between the acts underlying the current convictions”].)
In People v. Durant (1999) 68 Cal.App.4th 1393 (Durant), the Court of Appeal held that the trial court erred in imposing concurrent sentences where Durant entered a housing complex, unsuccessfully attempted to burglarize one home, walked to another residence where he again unsuccessfully attempted a burglary, and then walked to yet another residence where he finally succeeded in burglarizing the home. (Id. at pp. 1396-1399.) Explaining that Durant’s offenses were not committed “on the same occasion,” the court distinguished cases like Hendrix and Deloza where the multiple current crimes “were committed in such a close time and space as to have occurred almost simultaneously.” (Id. at p. 1404.)
The court then turned its focus to “the conjunctive phrase of section 667, subdivision (c)(6) and (7) that the offenses arose from ‘the same set of operative facts,’” explaining that: “[W]hen a robbery is charged, its continuous nature, its elements and the facts used to support those elements are the ‘operative facts’ underlying the commission of that crime. If another offense is committed while the facts underlying that robbery are unfolding, it will necessarily arise from the same set of operative facts as the original robbery. However, where the elements of the original crime have been satisfied, any crime subsequently committed will not arise from the same set of operative facts underlying the completed crime; rather such crime is necessarily committed at a different time.” (Durant, supra, 68 Cal.App.4th 1393, 1405-1406.)
The court concluded that “Durant’s offenses were not committed ‘on the same occasion’ nor did they arise ‘from the same set of operative facts’ as required for application of the narrow discretionary exception to the imposition of mandatory consecutive terms for multiple current offenses [under the Three Strikes law].” (Durant, supra, 68 Cal.App.4th 1393, 1396-1397.) As the court explained its conclusion: “Durant committed three separate offenses, two attempted burglaries which by their nature and elements were completed before he committed a burglary. The crimes did not occur on the ‘same occasion’ as that term is commonly understood. Nor did the duration of the crimes overlap, each being complete when Durant attempted to enter or successfully entered a residence and then left to go to another residence.” (Id. at pp. 1406-1407.)
In People v. Lawrence, supra, 24 Cal.4th 219, the Supreme Court approved of the Durant court’s treatment of the “same set of operative facts” component of section 667, subdivision (c)(6)’s exception to consecutive term sentencing. There, the court reversed the Court of Appeal and concluded that Lawrence’s current offenses did not occur on the same occasion or arise from the same set of operative facts despite the fact that he was still in flight after shoplifting a bottle of brandy when he decided to trespass into a backyard and then assault the occupants with the bottle as he was chased out of the yard. (Id. at p. 234.) As the court explained: “The first crime involved an act of theft directed at one group of victims, the second involved assaultive conduct directed at an unrelated pair of victims. The two criminal episodes were separated spatially by at least one to three city blocks, and temporally by two to three or more minutes (from the time defendant stole the brandy from the market until the point he committed the aggravated assault upon LaVastida after having fled from the first crime scene, trespassed into the Rojas/LaVastida backyard, and fled again, chased by Rojas out of the yard and down a long driveway to the street, where he hit LaVastida with the bottle before being subdued).” (Ibid.)
In this case, defendant was sentenced to a term of 36 years to life on the robbery that took place on April 10. He received concurrent terms of 25 years to life on two counts of unauthorized taking or driving a vehicle (Pearl Saunders’s 2001 Acura and Sarah Cotta’s 2001 Tahoe). In order for concurrent terms to be authorized under section 667, subdivision (c)(6), these crimes must have been committed “on the same occasion” or arisen “from the same set of operative facts.”
The record is unclear as to whether defendant was convicted based upon the unlawful taking or the unlawful driving of these vehicles.
Sarah Cotta’s 2001 Tahoe was unlawfully removed from her driveway by defendant on April 12. Defendant subsequently and unlawfully drove the vehicle to an apartment complex, where police stopped the SUV and ultimately apprehended defendant. Both the taking and the driving of the Tahoe occurred two days after the robbery of Rosemary Sanchez was complete. Regardless of whether defendant’s conviction was based on the unlawful taking or the unlawful driving of the Tahoe, this offense neither occurred on the same occasion nor arose from the same set of operative facts as the robbery conviction. Consequently, a consecutive sentence of 25 years to life was mandated by section 667, subdivision (c)(6). Failure to run this sentence consecutively resulted in an unauthorized sentence, which “is subject to judicial correction whenever the error comes to the attention of the reviewing court.” (People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6.)
Pearl Saunders’s 2001 Acura was unlawfully removed from her driveway by an unidentified individual on April 3. Defendant subsequently and unlawfully drove the vehicle to Rolando Rodriguez’s driveway, walked to Rosemary’s home where he committed the home invasion robbery, and following a brief confrontation with Rolando, drove the vehicle away. The unlawful taking of the Acura occurred seven days before the robbery. However, defendant’s conviction may have been based on the unlawful driving of the vehicle either immediately before or immediately following the robbery. Had the trial court imposed a consecutive term of 25 years to life for this conviction, we would not have hesitated in affirming that decision. (See People v. Lawrence, supra, 24 Cal.4th at p. 234 [offenses did not occur on the same occasion or arise from the same set of operative facts where defendant stole a bottle of brandy, ran into a backyard, and assaulted the occupants with the bottle as he was chased out of the yard].) Based on the Lawrence decision, we are inclined to believe that a consecutive term of 25 years to life was required for this conviction as well.
However, because the trial court imposed a concurrent sentence without any explanation as to why it believed the offense occurred on the same occasion or arose from the same set of operative facts as the robbery, and because defendant’s sentence must be reversed and the case remanded for resentencing anyway, we direct the trial court, in addition to imposing a consecutive term of 25 years to life on the unlawful taking or driving of the Tahoe, to either impose a consecutive term on the unlawful taking or driving of the Acura or state its reasons for imposing a concurrent term.
Finally, we disagree with the Attorney General’s remaining contention that the record is ambiguous as to whether defendant’s receiving stolen property convictions occurred on the same occasion or arose from the same set of operative facts as one of the other crimes. Defendant was convicted of receiving the stolen property of Steven Ruiz and Soraya Palacios, respectively. The stolen items were recovered from the Tahoe being driven by defendant immediately prior to his arrest. The only evidence in the record supporting his conviction for these counts of receiving stolen property is the fact that the stolen items were in his possession at the same time he was discovered unlawfully driving the Tahoe. The record supports the trial court’s implicit finding that these offenses occurred on the same occasion as the unlawful driving of the Tahoe. Consequently, the trial court possessed discretion to impose concurrent terms for these convictions.
DISPOSITION
Defendant’s conviction on count 8 of receiving the stolen .38 caliber revolver is reversed. The judgment is also reversed with respect to the sentence imposed and remanded to the trial court for resentencing. The trial court is directed to impose a consecutive term of 25 years to life on the unlawful taking or driving of the Tahoe (count 5), and to either impose a consecutive term of 25 years to life on the unlawful taking or driving of the Acura (count 1) or state its reasons for imposing a concurrent term. In all other respects, the judgment is affirmed.
We concur: DAVIS, J., HULL, J.