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People v. Hudson

California Court of Appeals, Fourth District, First Division
Apr 21, 2009
No. D051998 (Cal. Ct. App. Apr. 21, 2009)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. THOMAS HUDSON, Defendant and Appellant. D051998 California Court of Appeal, Fourth District, First Division April 21, 2009

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of San Diego County No. SCE270132, Louis R. Hanoian, Judge.

McDONALD, J.

Thomas Hudson appeals a judgment following his jury conviction of unlawfully taking or driving a vehicle (Veh. Code, § 10851, subd. (a) (hereafter § 10851(a)) and receiving a stolen vehicle (Pen. Code, § 496d (hereafter § 496d)). On appeal, he contends: (1) he was wrongfully convicted of both offenses because they were based on the same conduct; (2) Penal Code section 654 precludes punishment for both offenses based on the same conduct; and (3) the trial court erred by not instructing sua sponte that the jury could not convict him of both offenses.

FACTUAL AND PROCEDURAL BACKGROUND

On February 20, 2007, Charles Michael DeJoseph drove his Infiniti QX4 sport utility vehicle to the Viejas Casino in Alpine to meet his girlfriend, Edna Simsuangco. He arrived at about 6:00 a.m. to 6:30 a.m. He parked his vehicle, locked it, and entered the casino. He met Simsuangco inside and then began gambling. Simsuangco saw and briefly spoke with Hudson, her ex-boyfriend, while inside the casino, and mentioned his presence to DeJoseph at the time. At about 10:00 a.m., DeJoseph left the casino and found that his vehicle was missing from the parking lot. He reported the incident to police and Viejas Casino security.

Elizabeth Lemay, a Viejas Casino surveillance officer, reviewed video recordings from multiple cameras covering the casino interior and parking lots. Those recordings showed DeJoseph arrived at the casino's parking lot at about 7:36 a.m., parked his vehicle, and then entered the casino. Shortly thereafter, the recordings showed that a white van arrived and parked adjacent to DeJoseph's vehicle, a few unidentified men left the van and approached DeJoseph's vehicle, and one of them got in that vehicle before getting back into the white van and leaving. At about 9:30 a.m., the recordings showed Hudson left the casino, walked to and got in DeJoseph's vehicle, and drove it away. At trial, Lemay identified Hudson as the man who drove away in DeJoseph's vehicle.

A few days later, DeJoseph went to the San Diego County Sheriff's Alpine substation and viewed the Viejas Casino's surveillance video recordings. DeJoseph identified Hudson as the man shown on the recordings who left the casino and drove away in his vehicle. DeJoseph recognized Hudson because he (Hudson) had done construction and repair work for DeJoseph over a period of a year and a half. At one point, DeJoseph and Hudson had a disagreement over whether DeJoseph had underpaid Hudson for some work. About a month or two before DeJoseph's vehicle was taken, a spare set of keys for that vehicle went missing from his kitchen cabinet while Hudson had access to the kitchen. DeJoseph had never given Hudson permission to drive his Infiniti vehicle.

On February 26, a California Highway Patrol officer found DeJoseph's vehicle parked a few blocks from Hudson's residence. There was no indication of any forced entry into the vehicle or any damage to its ignition.

An information charged Hudson with one count of unlawfully taking or driving a vehicle (§ 10851(a)) and receiving a stolen vehicle (§ 496d). At trial, the prosecution's witnesses testified substantially as described above and portions of Viejas's surveillance video recordings were admitted in evidence. The jury found Hudson guilty on both counts. The trial court suspended imposition of sentence and granted Hudson formal probation for a period of three years on conditions, including a condition he serve 180 days in local custody. Hudson timely filed a notice of appeal.

DISCUSSION

I

Convictions of Both Unlawfully Taking and Receiving the Stolen Vehicle

Hudson contends he was wrongfully convicted of both unlawfully taking or driving DeJoseph's vehicle (§ 10851(a)) and receiving that stolen vehicle (§ 496d). Hudson argues that because there is insufficient evidence to show he drove DeJoseph's vehicle after he initially took and drove it, he could be convicted of only one of the those offenses.

A

Section 10851(a) provides: "Any person who drives or takes a vehicle not his or her own, without the consent of the owner thereof, and with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle . . . is guilty of a public offense and, upon conviction thereof, shall be punished by imprisonment in a county jail for not more than one year or in the state prison or by a fine of not more than five thousand dollars ($5,000), or by both the fine and imprisonment."

Section 496d, subdivision (a), provides: "Every person who buys or receives any motor vehicle . . . that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be [so] stolen or obtained, . . . shall be punished by imprisonment in the state prison for 16 months or two or three years or a fine of not more than ten thousand dollars ($10,000), or both, or by imprisonment in a county jail not to exceed one year or a fine of not more than one thousand dollars ($1,000), or both." Similarly, Penal Code section 496, subdivision (a) (hereafter section 496(a)), provides: "Every person who buys or receives any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, . . . shall be punished by imprisonment in a state prison, or in a county jail for not more than one year. . . . [¶] 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." (Italics added.)

In People v. Garza (2005) 35 Cal.4th 866, the California Supreme Court stated:

"[W]here . . . a defendant's dual convictions for violating section 10851(a) and section 496(a) relate to the same stolen vehicle, the crucial issue usually will be whether the section 10851(a) conviction is for a theft or a nontheft offense. If the conviction is for the taking of the vehicle, with the intent to permanently deprive the owner of possession, then it is a theft conviction that bars a conviction of the same person under section 496(a) for receiving the same vehicle as stolen property. Dual convictions are permissible, however, if the section 10851(a) conviction is for posttheft driving of the vehicle." (Garza, supra, at p. 881.)

Garza also recognized: "A common law rule likewise prohibits separate convictions for stealing and receiving the same property." (People v. Garza, supra, 35 Cal.4th at p. 874, citing People v. Jaramillo (1976) 16 Cal.3d 752, 757.) However, that common law rule does not apply in those uncommon situations in which there is evidence of a complete divorcement between the theft and a subsequent receiving of the property. (Garza, at pp. 874-875; Jaramillo, at p. 759, fn. 8.)

B

Hudson asserts, and the People agree, that because there is insufficient evidence to show he drove DeJoseph's vehicle after he initially took and drove it, he could not be convicted of both taking the vehicle and receiving the same stolen vehicle.

The trial court instructed the jury with CALCRIM No. 1820 on the elements of vehicle theft (§ 10851(a)) and with CALCRIM No. 1750 on the elements of receiving a stolen vehicle (§ 496d). However, the court did not instruct the jury that it could not find Hudson guilty of both the theft of and receiving the same stolen property (CALCRIM No. 3516).

Based on the parties' representations and our review of the record, we conclude the evidence is insufficient to support a finding that Hudson committed any subsequent act of receiving the stolen vehicle that was completely divorced from his original theft of the vehicle. The evidence shows Hudson unlawfully took and drove away DeJoseph's vehicle from the casino. There is no evidence to support a finding that after he had driven it to a place of temporary safety he engaged in separate conduct that could constitute a separate act of driving or receiving the stolen vehicle. Rather, on recovery of DeJoseph's vehicle six days later, there was no damage to the vehicle or its ignition, or other evidence showing Hudson had committed a separate act of driving it subsequent to his original act of taking it. We agree with both parties that Hudson could not be convicted of both the section 10851(a) and section 496d offenses for the theft of the vehicle and receiving the stolen vehicle, based on the same conduct. (People v. Garza, supra, 35 Cal.4th at pp. 874-875, 881; People v. Jaramillo, supra, 16 Cal.3d at pp. 757, 759, fn. 8.) Therefore, both convictions cannot stand.

As the People assert, the remedy for invalid dual convictions of theft of a vehicle and receiving that stolen vehicle need not be reversal of both convictions with remand for the prosecution to elect to retry one or both charged offenses. Rather, where, as here, the People concede on appeal that the section 496d conviction for receiving the stolen vehicle should be reversed, leaving only the section 10851(a) conviction for theft of the vehicle, we conclude remand for election by the prosecution to retry one or both charged offenses is unnecessary and, as the People note, would be a waste of judicial resources. Furthermore, Hudson apparently does not disagree with this remedy. In arguing that his "convictions should be reversed as to both convictions and the trial court granted permission to reinstate the section [10851(a)] conviction should the prosecution choose not to retry [him] as to either or both of the charges," Hudson in effect does not oppose the People's position regarding the appropriate remedy. On appeal, the People have in effect already elected not to prosecute Hudson further on the section 496d charged offense, because he cannot be convicted of both that offense and the section 10851(a) offense in the circumstances of this case. Accordingly, we need not reverse both convictions and remand to the trial court to reinstate the section 10851(a) conviction if the People do not elect to retry Hudson on one or both charged offenses. Rather, because the People have made their election on appeal, we need only reverse the section 496d conviction and affirm the section 10851(a) conviction. Furthermore, case law supports affirmance of the section 10851(a) conviction and reversal of the section 496d conviction when the theft and receiving a stolen vehicle convictions are based on the same conduct. (People v. Garza, supra, 35 Cal.4th at p. 881; People v. Jaramillo, supra, 16 Cal.3d at pp. 759, 760-761, fn. 11.) We agree with the People that Hudson's section 496d conviction should be reversed, and his section 10851(a) conviction should be affirmed.

Hudson does not contend on appeal that there is insufficient evidence to support his section 10851(a) conviction.

Although a similar issue is currently on review before the California Supreme Court in People v. Ceja (2007) 155 Cal.App.4th 1246, review granted January 16, 2008, S157932, that case involves convictions of both a "wobbler" offense for receiving stolen property (§ 496(a)) and a misdemeanor offense for petty theft (Pen. Code, § 484). Because in this case both offenses were wobbler offenses, charged by the prosecution and subsequently treated by the trial court as felony offenses, there is no issue here regarding whether the greater offense should always stand, while the lesser offense should be reversed. Accordingly, we do not believe the Supreme Court's future disposition of Ceja should impact our chosen remedy for Hudson's improper dual convictions in this case.

II

Penal Code Section 654

Hudson contends Penal Code section 654 precludes punishment for both of his offenses because they are based on the same conduct. However, because we reverse his section 496d conviction and therefore there can be no multiple punishment, that contention is moot and we need not address it.

III

Instructional Error

Hudson contends the trial court erred by not instructing sua sponte that the jury could not convict him of both offenses (i.e., he could not be convicted of both unlawfully taking and receiving the same stolen vehicle). The People agree, as do we, that the court erred by not so instructing (e.g., with CALCRIM No. 3516). Nevertheless, because we concluded Hudson could not be convicted of both offenses and reverse his section 496d conviction, that error is now necessarily harmless and moot and we need not address it further.

DISPOSITION

The defendant's conviction for the section 496d offense is reversed. In all other respects, the judgment is affirmed. The matter is remanded to the trial court with directions to modify the judgment accordingly and forward an amended judgment to the County of San Diego Probation Department.

WE CONCUR: McCONNELL, P. J., AARON, J.


Summaries of

People v. Hudson

California Court of Appeals, Fourth District, First Division
Apr 21, 2009
No. D051998 (Cal. Ct. App. Apr. 21, 2009)
Case details for

People v. Hudson

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. THOMAS HUDSON, Defendant and…

Court:California Court of Appeals, Fourth District, First Division

Date published: Apr 21, 2009

Citations

No. D051998 (Cal. Ct. App. Apr. 21, 2009)