Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County. Super. Ct. No. RIF129679, Russell F. Schooling, Judge. (Retired judge of the Mun. Ct. for the Southeast Jud. Dist. of L.A., assigned by the Chief Justice pursuant to art. VI, § 6, of the Cal. Const.)
David L. Bernstein, 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, Assistant Attorney General, Steve Oetting and Donald W. Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
McKinster, Acting P.J.
Defendant and appellant Jorge Guadalupe Gonzalez, Jr., appeals after he was convicted of unlawfully taking or driving a motor vehicle (count 1) (Veh. Code, § 10851, subd. (a)), unlawfully receiving a stolen vehicle (count 2) (Pen. Code, § 496d, subd. (a)), active participation in a criminal street gang (count 3) (Pen. Code, § 186.22, subd. (a)), hit-and-run driving (count 4) (Veh. Code, § 20002, subd. (a)), resisting arrest (count 5) (Pen. Code, § 148, subd. (a)(1)), and possession of drug paraphernalia (count 6) (Health & Saf. Code, § 11364). He contends the trial court erred in failing to give a unanimity instruction, and that the court improperly permitted him to be found guilty of both theft of and receiving the same stolen property. We conclude there was no error and we affirm.
FACTS AND PROCEDURAL HISTORY
On April 13, 2006, Abdurrahman Koksil parked his pickup truck in front of his house. The next morning, the truck was gone. Koksil reported the truck stolen.
Sometime on April 14, 2006, Officer Gavin Lucero of the Riverside Police Department was on patrol. He received dispatch information about the stolen truck. About 11:00 a.m., Officer Lucero saw a truck matching the description of the stolen truck pass his patrol car. He followed the truck, and activated his siren and overhead lights.
Two men were in the truck. The driver did not stop, but sped away. The driver ran through several stop signs and eventually crashed the truck into a parked car. The driver and the passenger exited the truck and ran away in different directions. Officer Lucero chased the driver on foot and eventually caught defendant hiding in the backyard of a nearby residence.
When Officer Lucero took defendant into custody, he found some marijuana and a methamphetamine pipe in defendant’s pockets. Defendant waived his constitutional rights and admitted to police that he was driving the truck; he tried to get away because he knew the truck was stolen. Defendant also admitted membership in the Eastside Riva gang.
As a result of these occurrences, defendant was charged with the offenses listed above, and found guilty by a jury as charged. The jury also found true allegations that defendant had committed the offenses in counts 1 and 2 for the benefit of a criminal street gang. (Pen. Code, § 186.22, subd. (b).) The court sentenced defendant to the midterm of two years on count 1, the principal count, plus a consecutive three-year term for the gang enhancement. The court stayed sentence on count 2 under Penal Code section 654. The court imposed a consecutive term of eight months on count 3. The sentences on the remaining counts were made concurrent.
ANALYSIS
I. No Sua Sponte Unanimity Instruction Was Required
Defendant contends that his conviction under Vehicle Code section 10851 could have been based upon two distinct types of conduct: either driving the stolen pickup or taking the pickup (i.e., actual theft of the pickup). Defendant urges that there was insufficient evidence to show beyond a reasonable doubt that he was the actual thief, yet some jurors may have convicted him based upon that theory. The prosecution never expressly elected to limit the jury’s consideration to driving, as opposed to taking, the truck. Thus, defendant argues, the court was required to give a unanimity instruction to ensure that defendant was properly convicted of count 1.
No unanimity instruction was required. Here, the evidence supported only one offense: that defendant drove the stolen vehicle. No evidence was directed to the issue of identifying who had stolen the vehicle. Defense counsel argued that defendant may have been the passenger, rather than the driver, based on Officer Lucero’s description of the driver as wearing a white shirt, but defendant’s booking photograph depicting him wearing a dark-colored shirt. Nevertheless, Officer Lucero clearly testified that he pursued the driver; defendant was the man he caught. In his police interview, defendant admitted driving the stolen truck, and stated that he fled because he knew the truck he was driving was stolen.
A unanimity instruction is required only if a jury could otherwise disagree as to which act an accused has committed, and yet still convict him of the charged offense. (People v. Maury (2003) 30 Cal.4th 342, 423.) No unanimity instruction is required when the evidence shows only one act. (People v. Jantz (2006) 137 Cal.App.4th 1283, 1292.) Here, the evidence showed that defendant was driving the stolen truck. There is utterly no evidence to suggest that any jurors would have convicted defendant as the actual thief, but not as the driver of the stolen truck, even if some may have also believed that defendant did steal the truck.
Under any standard of review (Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 828, 17 L.Ed.2d 705]; People v. Watson (1956) 46 Cal.2d 818, 836), any error was harmless. Defendant was caught driving the truck. In the absence of any error, i.e., if a unanimity instruction had been given, the result would have been the same. Defendant was properly convicted in count 1 of violation of Vehicle Code section 10851.
II. Defendant Was Properly Convicted of Both Count 1 and Count 2
In a related vein, defendant urges that his conviction of receiving stolen property (the truck) must be reversed: If the jury convicted him in count 1 on the theory that he was the actual thief of the stolen truck, he could not properly be convicted of both stealing and receiving the same property.
Defendant is correct that a defendant may not be convicted of both stealing and receiving the same stolen property. (People v. Jaramillo (1976) 16 Cal.3d 752, 757; see also Pen. Code, § 496.) Nevertheless, defendant here was properly convicted of both offenses. The evidence here showed only that defendant was the driver of the stolen pickup. The prosecutor made no argument and presented no evidence to show that defendant was the actual thief. A person who violates Vehicle Code section 10851 by driving a stolen vehicle with intent to deprive the owner of possession may be convicted both of the Vehicle Code offense and of receiving stolen property. (People v. Garza (2005) 35 Cal.4th 866, 876.)
Here, the evidence was overwhelming, including defendant’s direct admission that he was the driver of the stolen pickup. Thus, “the jury must have at least found that [the] defendant violated the . . . ‘driving’ provision of section 10851(a).” (People v. Cratty (1999) 77 Cal.App.4th 98, 101.) “[N]o reasonable juror could have found that defendant took but did not drive the vehicle.” (Ibid.) Defendant properly stood convicted of both the Vehicle Code section 10851 offense and the Penal Code section 496d offense.
DISPOSITION
The judgment is affirmed.
We concur: Gaut, J. King, J.