Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. TF-5132A, Kenneth C. Twisselman II, Judge.
Barbara Coffman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Lloyd G. Carter, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HILL, J.
Defendant appeals from a judgment convicting him of six counts of receiving stolen property, and one count each of petty theft with a prior theft conviction, tampering with a vehicle, evading a police officer, and resisting a police officer. Defendant contends he was improperly convicted of multiple counts of receiving stolen property when there was no evidence he received the property on different dates or in different transactions. He further contends he was denied effective assistance of counsel. We conclude there was insufficient evidence to support conviction of multiple counts of receiving stolen property, and reverse the judgment on the duplicative counts. We affirm the judgment on the remaining counts.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged by information with eight counts of petty theft with a prior theft-related conviction (Pen. Code, § 666 ), eight counts of receiving stolen property (belonging to the same victims alleged in the theft counts) (§ 496, subd. (a)), one count of tampering with a vehicle (Veh. Code, § 10852), one count of evading a police officer (Veh. Code, § 2800.2), and one count of resisting a police officer (§ 148, subd. (a)(1)). Prior to jury selection, seven of the theft counts and one count of receiving stolen property were dismissed on the People’s motion. The jury found defendant guilty of all remaining counts, except one count of receiving stolen property. Allegations of prior serious or violent felony convictions and prior prison terms were bifurcated, tried separately, and found true by the court.
All further statutory references are to the Penal Code unless otherwise indicated.
On December 3, 2007, at about 3:00 a.m., David Lutz was walking out to his truck to go to work when he noticed a light on in his wife’s Chevrolet Tahoe, which was parked in the driveway. As he approached the Tahoe on the passenger side, he saw someone had the driver’s door open; the man had a flashlight in his mouth and was bent over rummaging through Ranay Lutz’s purse. When David spoke, the man looked up at him, then ran away, yelling “help me.” David chased him, then returned home and had Ranay call the police. At trial, David identified defendant as the man he saw in the Tahoe.
We refer to certain of the participants by their first names because they share a last name with others involved. No disrespect is intended.
Officer Charles Buford responded to the Lutzes’ house to take the report. The Lutzes reported the loss of Ranay’s purse and a digital camera. As they were talking, Officer Buford noticed a silver Chevrolet Cobalt enter and leave the housing complex twice, which was unusual at that hour. Later, he saw the same silver Cobalt drive into a field, stop and turn its lights off. When he drove up behind the Cobalt, its lights went on and it sped away. Officer Buford pursued the Cobalt, with his emergency lights and siren on, reaching a speed of 80 miles per hour. The chase continued on dirt roads until the Cobalt spun out and became stuck in the dirt. After Officer Buford subdued and handcuffed defendant, the driver of the Cobalt, he searched defendant’s car; he found a credit card with Ranay’s name on it on the driver’s side floor board, and Ranay’s purse on the passenger side. He removed other items from other parts of the vehicle, including digital cameras and cell phones, some of which were later returned to their owners. Victims of various vehicle burglaries recovered items of their property from among the items seized from defendant’s car.
Defense counsel attempted to introduce the testimony of defendant’s sister, Kristal Powell, that Jeremy Rosette, a friend of defendant’s who looks like defendant, told her that, while he was going through some man’s truck, he knocked the man in the head with a flashlight. Based on that information, Kristal notified law enforcement she believed Rosette committed the Lutz burglary. Rosette also said a lot of the property in defendant’s car belonged to Rosette. The prosecutor objected that the proposed testimony was hearsay; defense counsel asserted it fell within the hearsay exception for a declaration against interest. The court excluded the evidence, concluding it did not fall within that exception because defendant had not established that Rosette was unavailable to testify.
Kristal testified defendant had a son with Rosette’s sister, so Rosette was “kind of a brother-in-law, maybe.”
Defendant testified he was not in the Lutzes’ car on December 3, 2007. He testified that, between 3:00 in the morning when the Lutzes’ car was broken into and around 4:00 a.m. when Ranay’s purse was found in his car, he gave a ride to Rosette. Rosette had a backpack with him, which remained in defendant’s car when Rosette left; defendant later learned it contained a purse belonging to Ranay. Defendant also testified that the property belonging to the burglary victims who testified, which was found in his trunk, was property he bought from Rosette all at one time in early December.
Defendant appeals, contending there was insufficient evidence to support multiple counts of receiving stolen property, because the only evidence concerning when the property was received was that defendant purchased all the property from Rosette at the same time. Defendant also contends he was denied effective assistance of counsel because his attorney failed to establish Rosette’s unavailability, a prerequisite to admission of Kristal’s testimony under the hearsay exception for declarations against interest.
DISCUSSION
I. Sufficiency of Evidence of Multiple Counts of Receiving Stolen Property
“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, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any property from the owner, 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.” (§ 496, subd. (a).)
“[T]he elements of receiving stolen property are: (1) that the particular property was stolen; (2) that the accused received, concealed or withheld it from the owner thereof; and (3) that the accused knew that the property was stolen.” (People v. Johnson (1980) 104 Cal.App.3d 598, 605.) “Where a defendant receives multiple articles of stolen property at the same time, this amounts to but one offense of receiving stolen property.” (People v. Mitchell (2008) 164 Cal.App.4th 442, 461 (Mitchell).) When the People’s theory is that the defendant concealed or withheld stolen property from the owner, the People need not prove when the defendant received the property; in that situation, if the People prove the defendant possessed and held items of stolen property on the same date, even if the items were stolen from different owners at different times, the defendant can be convicted of only one violation of section 496, subdivision (a). (Mitchell, supra, 164 Cal.App.4th at pp. 462-463.)
At the time of trial, defendant was charged with seven counts of receiving stolen property. He was acquitted of the count involving property belonging to Ranay Lutz, because he was convicted of the theft of that property. The six other victims testified they reported their property stolen and recovered it after being contacted by the Taft Police Department. None testified to the exact date the property was stolen or reported stolen. There was testimony that one victim reported the theft on December 1, 2007, and another victim believed the theft occurred around December 1. Property of all six victims was recovered from defendant’s car on December 3, 2007, and returned to the victims that day or subsequently.
There was no evidence when or how the property came into defendant’s possession, except defendant’s testimony that he bought it from Rosette all at one time. As noted in Mitchell, a violation of section 496, subdivision (a), may be committed not only by buying or receiving stolen property, but also by concealing such property or withholding it from its owner. (Mitchell, supra, 164 Cal.App.4th at p. 462.) In Mitchell, no evidence was presented showing when the stolen property came into the defendant’s possession. “Counts 17 and 21 alleged receipt of stolen property on or about December 20, 2004. This was the day the property was discovered by the police. However, presumably it was received by defendant some time earlier. On the other hand, December 20 would be a day on which defendant withheld or concealed the property from its rightful owner.” (Id. at p. 463.) Because there was no evidence the defendant bought, received, or sold any of the property, her guilt on each count depended on when she concealed or withheld the property from its owner. The People met their burden by proving the defendant possessed the stolen property in both counts on December 20, 2004. Because she concealed or withheld the property in both counts on the same date, she could not be convicted of both offenses. (Ibid.)
Similarly, in this case, there was no evidence showing when defendant received the stolen property. The evidence showed only that he possessed it all on the same date, December 3, 2007, when the police seized it from his car. Substantial evidence supported a finding that defendant concealed or withheld the property from its owners on that date. Because there was no evidence defendant received, concealed or withheld the property on any other date, he could not be convicted of multiple counts of receiving stolen property.
The People cite various cases in an attempt to show that receipt of the property on multiple dates can be inferred from the evidence. In those cases, however, there was evidence that the defendant received the items of stolen property on different dates or in different transactions. In People v. De Vaughn (1934) 136 Cal.App. 746, the defendant was charged with three counts of receiving stolen property, two of which allegedly occurred on the same day. The court rejected the defendant’s argument that the two occurring on the same day constituted only one offense. It stated there was evidence from which the jury might have inferred that the property in the two counts was not received either at the same time or in the same transaction. (Id. at p. 750.) “The witness Piper directly testified that there were two of these July 11th transactions, and that one of them was ‘another occasion’ from the other.” (Id. at p. 752.)
In People v. Roberts (1960) 182 Cal.App.2d 431, the defendant was charged with receiving property that was stolen from three different locations on three different dates. The court rejected his argument there was a single offense. “The appellant testified in effect that he received at the same time all three of these items. However, the statement which appellant made to the police indicates that he received the items on different dates and different occasions. There was other testimony which, if believed by the jury, would create the inference that there was a separate receiving for the items described in each separate count.” (Id. at pp. 436-437.)
In People v. Bullwinkle (1980) 105 Cal.App.3d 82 (disapproved on other grounds in People v. Laiwa (1983) 34 Cal.3d 711, 728), the court concluded the record reasonably supported an inference the defendant received the stolen items at different times and in different transactions, because the burglaries in which the items were stolen occurred at widely separated times: May 1975, December 1, 1975, January 10, 1976, and January 1978. (People v. Bullwinkle, supra, at p. 92.)
There was no testimony that defendant received the property on more than one occasion; defendant made no prior statement indicating he received stolen property on more than one occasion. The thefts did not occur at widely separated times. One witness testified his property was stolen in November; he reported it stolen on December 1, which must have been within a day or two of the date his vehicle was broken into, because he drove the vehicle frequently. The rest of the victims testified their property was stolen in early December. It was seized from defendant on December 3. Thus, the thefts could only have occurred close together in time.
There was no substantial evidence to support a finding that defendant received the stolen property on six different occasions. The six separate counts of receiving stolen property cannot stand.
II. Ineffective Assistance of Counsel
Under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, a criminal defendant has a right to the effective assistance of counsel; that is, he has a right to “‘the reasonably competent assistance of an attorney acting as his diligent conscientious advocate.’” (People v. Ledesma (1987) 43 Cal.3d 171, 215 (Ledesma).) “The ultimate purpose of this right is to protect the defendant’s fundamental right to a trial that is both fair in its conduct and reliable in its result.” (Ibid.)
A claim of ineffective assistance has two components: (1) the defendant must show counsel’s performance was deficient, i.e., that it fell below an objective standard of reasonableness under prevailing professional norms; and (2) the defendant must establish prejudice as a result. (Ledesma, supra, 43 Cal.3d at pp. 216, 217.) “Unless a defendant establishes the contrary, we shall presume that ‘counsel’s performance fell within the wide range of professional competence and that counsel’s actions and inactions can be explained as a matter of sound trial strategy.’ [Citation.] If the record ‘sheds no light on why counsel acted or failed to act in the manner challenged, ’ an appellate claim of ineffective assistance of counsel must be rejected ‘unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.’ [Citations.]” (People v. Ledesma (2006) 39 Cal.4th 641, 745 (People v. Ledesma).) To show prejudice, defendant must demonstrate there is a “‘reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ [Citation.]” (Id. at p. 746.)
Defendant contends his trial attorney knew she wished to introduce evidence of Rosette’s statements through the testimony of Kristal, using the statement against interest exception to the hearsay rule (Evid. Code, § 1230); he asserts she knew or should have known a showing of Rosette’s unavailability to testify was a prerequisite to admissibility under that exception. When asked about Rosette’s unavailability, defense counsel stated it was her understanding Rosette was not in Kern County, and she did not know where he was to try to serve him and have him appear in court. When unavailability is premised on an inability to bring the declarant to court to testify, the proponent of the hearsay evidence must show either that the court is unable to compel the declarant’s attendance by process, or that “the proponent of his or her statement has exercised reasonable diligence but has been unable to procure his or her attendance by the court’s process.” (Evid. Code, § 240, subd. (a)(5).)
A declarant may be unavailable as a witness if he or she is any of the following:
The record “‘sheds no light on why counsel acted or failed to act in the manner challenged.’” (People v. Ledesma, supra, 39 Cal.4th at p. 746.) In response to the court’s question, defense counsel indicated she had not asked an investigator to try to locate Rosette. She was not asked, and did not explain, why she did not have an investigator look for Rosette or why she did not make other efforts to establish his unavailability to testify, if she did not. This is not a case where “‘there simply could be no satisfactory explanation’” for counsel’s actions. (Ibid.) The record contains nothing indicating whether defense counsel investigated Rosette’s whereabouts, or what information she had about him, other than an understanding he was not in Kern County. She may have had reason to believe that Rosette was not in Kern County at the time he allegedly made the statements to Kristal, or that further investigation would reveal that, if he was located, Rosette would not testify consistently with Kristal’s statements. We note that, contrary to counsel’s expressed understanding that Rosette was not in Kern County, Kristal was asked “where does Jeremy Rosette live?” and she testified he lived in Taft.
Defendant has not met his burden of establishing that his trial attorney’s performance fell below an objective standard of reasonableness under prevailing professional norms. Consequently, he has not demonstrated that he was denied the effective assistance of counsel.
DISPOSITION
The judgment on counts 4, 8, 10, 15, and 17 is reversed, and the sentence on those counts is stricken. The judgment on the remaining counts is affirmed. The trial court is directed to correct the abstract of judgment to reflect the foregoing and to forward the corrected abstract to the Department of Corrections and Rehabilitation.
WE CONCUR: GOMES, Acting P. J. POOCHIGIAN, J.
“(1) Exempted or precluded on the ground of privilege from testifying concerning the matter to which his or her statement is relevant.
“(2) Disqualified from testifying to the matter.
“(3) Dead or unable to attend or to testify at the hearing because of then existing physical or mental illness or infirmity.
“(4) Absent from the hearing and the court is unable to compel his or her attendance by its process.
“(5) Absent from the hearing and the proponent of his or her statement has exercised reasonable diligence but has been unable to procure his or her attendance by the court’s process.” (Evid. Code, § 240, subd. (a).)
Defendant does not contend Rosette was unavailable under subdivisions (a)(1) through (3).