Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County. J. Michael Gunn, Judge, Super.Ct.No. FWV035762.
Maureen J. Shanahan, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Steve Oetting, Supervising Deputy Attorney General, and Felicity Senoski, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P.J.
Introduction
On December 13, 2005, a jury found Adrian Frank Gonzales (defendant) guilty of grand theft (Pen. Code, § 487, subd. (a)) and receiving stolen property (§ 496, subd. (a)), while acquitting him of burglary (§ 459) and possession of burglar’s tools (§ 466). He argues on appeal that the conviction for grand theft is inconsistent with the acquittal for burglary and that in any case the evidence of grand theft is insufficient. He further contends that he cannot properly be convicted of both grand theft and receiving stolen property. The People concede only defendant’s last claim. We will affirm the grand theft and reverse the receipt of stolen property.
All further statutory references are to the Penal Code.
Facts and procedural history
On August 31, 2005, Melinda Brigden (Brigden or the victim) took $2,000 out of her account at Vineyard Bank: $500 in tens, $500 in twenties and $1,000 in hundreds. The teller gave her a “ticker tape” receipt showing how many bills of each denomination she received in the transaction. Brigden put the money and the receipt in a checkbook cover she carried in her purse. Brigden had been a heroin addict in the past and had been on methadone therapy for 15 years. On September 3, she moved from her parents’ home into the Double Tree Hotel in Ontario where her stepfather had rented a room for her. Over the next three days, she spent about $10 of her cash; as she paid for her purchases, she marked each expenditure on the ticker tape receipt.
On September 8, Brigden left the Double Tree and traveled by bus to the corner of Mountain and Mission to check into another motel, the Best Ontario Inn. During the move she carried with her a total of nine items, including her purse. When she got off the bus and realized she needed someone to help her carry her baggage to the motel across the street, she asked defendant if he would help her. Defendant agreed and loaded the bags into his car, drove her to the motel, unloaded the bags, and stood by them while she went into the office to rent a room. Out of her cash Brigden paid a $5 deposit for the room key by giving the clerk a $10 bill and receiving $5 in change. Then she zipped the checkbook cover containing the rest of her cash back into her purse.
After defendant carried her bags upstairs to the door of her assigned room, Brigden thanked him and apologized for not being able to give him a tip. He left. The time was about 6:30 p.m. As she entered her room, Brigden noticed that the door had no functioning deadbolt or a chain, only a lock in the handle, which she locked. Then, with her still-zipped purse beside her, she sat on the bed and immediately fell asleep. When she awoke she saw that the door to her room appeared to have been tampered with: there were paint chips on the floor, the threshold was bent, and the door now made a noise when it opened and closed that it had not made before. When she checked her purse she found that the checkbook cover containing her cash was gone.
Ontario Police Officer Robert Wrightman arrived at the motel about 10:00 p.m., a few minutes after Brigden’s 911 call. Wrightman talked with the victim for 30-45 minutes and also examined the motel room door. The officer found what appeared to be fresh “pry marks” damage, white paint chips on the floor, and that the door was difficult to open, close, and secure.
Shortly after leaving the motel, Officer Wrightman made a traffic stop of defendant and his car. In a lawful search, Wrightman discovered $1,613 in defendant’s pocket: six $100 bills, twenty-seven $20 bills, forty-six $10 bills, one $5 bill, and eight $1 bills. Between the center console and the passenger seat he found a Vineyard Bank checkbook cover with a ticker tape receipt—but no money—inside. Brigden identified the checkbook cover and the receipt as hers and defendant as the person who had helped her earlier. Wrightman arrested defendant and took him to the police station. After waiving his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436), defendant told the officer that he had the cash with him because he intended buy a car that day. He did not know how the checkbook cover came to be in his car.
In a second amended information filed on November 28, defendant was charged with burglary (§ 459; count 1), receiving stolen property (§ 496, subd. (a); count 2), grand theft (§ 487, subd. (a); count 3), and possession of burglar’s tools (§ 466; count 4). The information alleged that as to counts 1-3, defendant had suffered two prior convictions within the meaning of section 667.5, subdivision (b), and that he had not remained free of custody for five years subsequent to his release from prison.
In the course of defendant’s bifurcated trial, the victim testified extensively as to the theft, and Officer Wrightman testified as to the circumstances and events surrounding defendant’s arrest as outlined above. In addition, Wrightman testified that he found about 10 “skeleton” keys on defendant’s key ring. Based on his years of experience in the police force investigating burglaries, Wrightman believed the skeleton keys to be burglary tools. Defendant told him the extra keys had been on the ring given to him when he bought the car. The previous owner’s boyfriend testified that there were only two keys on the key ring he gave defendant at the time of the sale—one for the ignition and one for the trunk and the doors. None of the keys on the ring opened the door to the victim’s motel room. Defendant’s friend and employer, who had not previously spoken to the prosecutor or to Officer Wrightman, testified that he had paid defendant $1,700 in cash on August 26 or 27—in large denominations possibly including hundreds, fifties, and twenties, but not tens or singles.
On December 13, after a bifurcated trial, a jury convicted defendant of grand theft and receiving stolen property, but acquitted him of burglary and possession of burglar’s tools. On April 24, 2006, the court struck defendant’s priors, on motion of the district attorney, and sentenced him to 16 months for the grand theft and a concurrent term of 16 months for the receipt of stolen property, with the latter term stayed pursuant to section 654.
Discussion
Standard of Review
“In assessing a claim of insufficiency of evidence, the reviewing court’s task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Rodriguez (1999) 20 Cal.4th 1, 11, citing People v. Johnson (1980) 26 Cal.3d 557, 578.) The standard is the same in cases where the prosecution relies mainly on circumstantial evidence. (Ibid., citing People v. Stanley (1995) 10 Cal.4th 764, 792.) “Under this standard, the court does not ‘“ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.” [Citation.] Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ [Citation.]” (People v. Hatch (2000) 22 Cal.4th 260, 272, quoting Jackson v. Virginia (1979) 443 U.S. 307, 318- 319.) The credibility of witnesses is the exclusive province of the trier of fact. (People v. Alcala (1984) 36 Cal.3d 604, 623.) In this regard, a jury has the right to accept all or part of the testimony of any witness while rejecting the rest, and an appellate court may not second guess the credibility determination. (People v. Medina (1978) 78 Cal.App.3d 1000, 1005-1006.)
Grand Theft and Burglary
Subdivision (a) of section 487 provides in relevant part that, “Grand theft is theft committed . . . [w]hen the money, labor, or real or personal property taken is of a value exceeding four hundred dollars . . . .” The related jury instruction, as given to the jury here, CALJIC 14.02, explains that in order to prove grand theft, each of the following elements must be proven: that the defendant “took personal property of some value belonging to another,” that when he took the property “he had the specific intent to deprive the alleged victim permanently of her property,” and that he “carried the property away by obtaining physical possession and control for some period of time and by some movement of the property.”
Section 459 states: “Every person who enters any . . . building . . . with intent to commit . . . any felony is guilty of burglary.” (§ 459.) The jury here was instructed that in order to find defendant guilty of burglary it must find that he entered the Best Ontario Inn and that at the time of the entry he “had the specific intent to steal and take away someone else’s property, and intended to deprive the owner permanently of that property.”
Regarding both grand theft and burglary, “‘Possession of recently stolen property is so incriminating that to warrant conviction there need only be, in addition to possession, slight corroboration in the form of statements or conduct of the defendant tending to show his guilt. [Citations.]’ [Citation.]” (People v. Vann (1974) 12 Cal.3d 220, 224, quoting People v. McFarland (1962) 58 Cal.2d 748, 754.) It is for the jury to determine whether or not an inference of “theft, burglary, or knowingly receiving stolen property” should be drawn in the light of all the evidence. (People v. McFarland, supra, at p. 755.)
Defendant argues first that his conviction for grand theft was “totally inconsistent” with his acquittal of burglary. While we do not agree that the verdicts were necessarily inconsistent, we note with appellate counsel for both parties that a jury may render inconsistent verdicts on separate charges based on the same set of facts without necessitating a reversal. (§ 954; People v. Lewis (2001) 25 Cal.4th 610, 656; People v. York (1992) 11 Cal.App.4th 1506, 1510.) Our review of the sufficiency of the evidence to support a conviction is thus “‘independent of the jury’s determination that evidence on another count was insufficient.’” (People v. Lewis, supra, at p. 656.) Here, this means that our review of whether the evidence supported defendant’s conviction for grand theft is independent of the jury’s determination that it did not support burglary.
There were a number of facts in the trial evidence from which the jury could reasonably infer that defendant had stolen the victim’s money and checkbook cover. He had the necessary knowledge and an opportunity to commit the crime. He knew the victim’s room number and location because he had been with her for about an hour while she checked into the motel and he had taken her things up to her room. He also knew that, although she may not have been rich, she was not destitute because she had quite a bit of baggage and enough resources to rent a motel room. Officer Wrightman had testified that he arrested defendant about an hour after he finished taking his report from the victim, so it was reasonable for the jury to infer that defendant was apprehended not far from the scene of the theft. The amount and denominations of the cash found in his pocket correlated closely with the specifics of the victim’s cash withdrawal.
Most importantly, defendant had the victim’s checkbook cover and ticker tape bank receipt in his possession at the time he was stopped but said he “didn’t know” how these items happened to be in his car stuffed between the console and the passenger seat. The jury may have found this statement not credible because they had heard extensive testimony from Brigden about her meticulous tallying of every little expenditure. Jurors may have considered it unlikely, notwithstanding her past history of heroin addiction and methadone therapy, that she had lost or misplaced the checkbook cover—with her “life savings” removed—in defendant’s car. Defendant’s credibility had already been undermined by the witnesses who testified that there were only two car keys on the ring they gave him when he bought the car while defendant told the police officer that he had received the skeleton keys on the ring too. Finally, the jury may have found unusual the fact that defendant did not mention his recent receipt of wages when Officer Wrightman asked him about his possession of the large amount of cash and apparently did not have his friend and employer come forward with this exculpatory evidence until shortly before he took the witness stand.
In sum, there was substantial credible evidence from which the jury could have found defendant guilty beyond a reasonable doubt of the theft of Brigden’s money.
Grand Theft and Receipt of Stolen Property
Defendant also argues that his convictions for grand theft and receipt of stolen property cannot both stand and, because he believes that there is insufficient evidence to support either, urges us to reverse both. The People agree the two convictions cannot both stand, but assert that the proper remedy is to reverse the receiving conviction. The People are correct.
The California Supreme Court recently confirmed the common law rule, codified in section 496, subdivision (a), that a person may not be convicted of both stealing and receiving the same property. (People v. Smith (2007) 40 Cal.4th 483, 522.) When a defendant has been convicted of both these crimes, the remedy is to reverse the receipt of stolen property conviction. (Ibid.; People v. Stephens (1990) 218 Cal.App.3d 575, 586-587.) In this case, defendant was convicted of stealing Brigden’s money and receiving the same money as stolen property. As we have explained, there is ample evidence to support the theft conviction. Accordingly, the conviction for receiving stolen property must be reversed. (People v. Smith, supra, at p. 522.)
Disposition
Defendant’s conviction for receipt of stolen property in violation of section 496, subdivision (a) is reversed. In all other respects, the judgment is affirmed.
We concur: McKINSTER, J., GAUT, J.