Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS082193A
BAMATTRE-MANOUKIAN, ACTING P.J.
INTRODUCTION
A jury convicted defendant Tashna Simone Rabalais of taking or driving a vehicle without the owner’s consent (Veh. Code, § 10851, subd. (a)) and of receiving or concealing stolen property (Pen. Code, § 496, subd. (a); hereafter section 496(a).) The trial court sentenced defendant to serve the midterm of three years for the Vehicle Code section 10851, subdivision (a) offense and a consecutive sentence of one-third the midterm for the section 496(a) offense, for a total term of three years eight months. The trial court also ordered defendant to pay a restitution fund fine of $600 and a suspended parole revocation fine of $600.
Vehicle Code section 10851, subdivision (a), provides, in relevant part: “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, whether with or without intent to steal the vehicle... is guilty of a public offense.”
All further statutory references are to the Penal Code unless otherwise specified.
On appeal, defendant contends that she was erroneously convicted of both unlawfully taking and receiving the same property. Defendant also contends that the trial court erred by failing to instruct the jury that defendant could not be convicted of both taking and receiving the same property. Defendant further contends that, even if she is guilty of both offenses, the sentence imposed for the section 496(a) offense should have been stayed pursuant to section 654. With respect to the restitution fund fine and suspended parole revocation fine, defendant asserts that the abstract of judgment must be amended to reflect the oral judgment of the trial court. For reasons that we will explain, we will modify the judgment and affirm the judgment as so modified.
Section 654, subdivision (a), provides, in relevant part: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.”
FACTUAL AND PROCEDURAL BACKGROUND
The essential facts of this case are undisputed. William Symington lived in Santa Monica, California when he rented from Enterprise Rent-A-Car a Dodge Dakota truck with license plate number 8L08989 while his vehicle was being repaired. Symington was the sole person authorized under the rental contract to drive the truck. On July 22, 2008, Symington met and exchanged telephone numbers with defendant at JP’s, a bar and restaurant in Santa Monica. On July 23, 2008, defendant called Symington and they met for lunch at a Mexican restaurant before heading to JP’s for drinks. Defendant spent the night at Symington’s residence. Defendant and Symington went to lunch again the next day, July 24, 2008, and both parties consumed a number of alcoholic drinks. Defendant returned to Symington’s residence that night, and Symington fell asleep around 9:00 p.m. Symington woke up around 1:00 a.m. and noticed that defendant was no longer at his residence. He fell back asleep, and did not wake up again until much later that morning. When he awoke, Symington found that the car keys to the Dodge truck, $150 to $200 from his pants, and the Dodge truck were missing. After waiting a few hours to see if defendant would return, Symington reported the vehicle stolen to the Santa Monica Police Department.
On August 22, 2008, Officer Chris Johnson of the Carmel Police Department was assisting with the investigation of a commercial burglary of a women’s clothing store. Officer Johnson observed a black Dodge truck parked in a store parking lot. He illuminated the truck with his flashlight and noticed it was full of women’s clothing. He then ran the license plate of the truck through dispatch and determined that the truck was reported stolen out of Santa Monica. Officer Johnson testified that the license plate of the truck was 8L08989. Officer Johnson notified his superior, Sergeant Tomasi, who arrived at the scene shortly thereafter and began surveillance on the truck.
While Sergeant Tomasi was conducting surveillance, he observed defendant and a male enter the parking lot and walk towards the truck. Sergeant Tomasi then observed defendant lift her left arm up and point towards the truck. At the same time, Sergeant Tomasi observed the rear lights of the truck turn on and heard the sound of the doors unlocking. Defendant had a keychain in her hand when Sergeant Tomasi approached her. The keychain had a Dodge key, an Enterprise tag, a second key, and a heart-shaped pendant or keychain attached to it. Sergeant Tomasi then arrested defendant.
Subsequent to defendant’s arrest, she waived her Miranda rights and spoke with Sergeant Tomasi. Sergeant Tomasi testified that defendant told him she waited until Symington was asleep to take the keys and that she had no intention of going back to Symington’s. Defendant testified at trial that she took the car to purchase more alcohol the evening of July 24, 2008, but woke up the morning of July 25, 2008, in Carmel-by-the-Sea. She stayed in Carmel, and got a job in a furniture store in order to pay Symington for the use of truck. On the evening she was arrested, she had parked the car near the furniture store so that it would be nearby when she closed the store.
Miranda v. Arizona (1966) 384 U.S. 436.
Defendant testified that she obtained permission from Symington on the night of July 24, 2008, to take the truck to buy more alcohol. Symington testified that he did not give defendant permission to drive the truck. On cross-examination, defendant acknowledged that Symington did not give her permission to keep the truck for 28 days.
At trial, the prosecution did not present any direct evidence that defendant drove the vehicle after she initially drove it to Carmel from Santa Monica on July 25, 2008. Instead, the prosecution urged that the elements of section 496(a) were met beyond a reasonable doubt. The prosecutor’s argument was as follows:
“[PROSECUTOR]: Ladies and gentlemen, I submit to you that Count 1 [Vehicle Code section 10851, subdivision (a)] and Count 2 [section 496(a)] have been proven beyond a reasonable doubt. I’d ask you, when you go back in that jury deliberation room, use your common sense. You all didn’t leave it at the door when you came in and became jurors. This is a very straightforward case.
“Now, as far as circumstantial evidence is concerned, you know, if you have any – if you have any doubt what was said from the defendant you can have that read back. I believe that she – she mentioned something about driving it around Carmel. And, you know, it’s up to you to make that decision. Maybe you heard it, maybe you didn’t, but you can ask the court reporter – or the Judge to have the court reporter read it back to you.
“But I’d submit to you, there’s circumstantial evidence, ladies and gentlemen, and you can rely on that to believe that when she was in Carmel she was driving that vehicle around. I mean, she had the keys. I mean, what else is she doing with it? So I’d submit to you, ladies and gentlemen, you can look at every one of those days she possessed that car and every time you feel that she drove it, she’s guilty of that. And again, it’s only one day I have to show, just one day.”
Following the parties’ arguments, the trial court instructed the jury with CALCRIM No. 1820 that to prove defendant guilty of violating Vehicle Code section 10851, subdivision (a), the district attorney must prove that “1. The defendant took or drove someone else’s vehicle without the owner’s consent; [¶] and [¶] 2. When the defendant did so, she intended to deprive the owner of possession or ownership of the vehicle for any period of time.” (Italics added.) The trial court’s instructions did not require the jury to choose between whether the conviction for violating Vehicle Code section 10851, subdivision (a) was under either a taking or a driving after the theft was completed (hereafter post-theft driving) theory, and the jury’s verdict did not disclose which theory or theories the jurors accepted. The trial court also did not explain to the jury the rule prohibiting convictions for stealing and receiving the same property (§ 496(a)). The jury returned verdicts of guilty as to both offenses on December 17, 2008.
On January 30, 2009, the trial court sentenced defendant to serve the midterm of three years for violating Vehicle Code section 10851, subdivision (a) and a consecutive term of one-third the midterm for violating section 496(a), for a total term of three years eight months. Defense counsel contended that the section 496(a) term should be suspended under section 654. The prosecutor disagreed, and cited the length of time from the original taking until the truck was found as support for the additional term for violating section 496(a). The trial court held that section 654 did not apply to the section 496(a) offense and explained its reasoning as follows:
“THE COURT: [The maintenance of the possession as opposed to the initial deprivation] makes it a separate transaction. Clearly they’re related. And on that basis, I would understand a request for consecutive time, but I don’t think they’re 654. [¶]... [¶]... I will find that count 2 [section 496(a)], the elements appear to be based on possession while count 1 [Vehicle Code section 10851, subdivision (a)], the elements appear to be based on the taking. I think they are separate and the time frame also relates, although in the complaint count 1 [Vehicle Code section 10851, subdivision (a)] is listed as July 24 through August 22.
“The initial offense in all elements were actually contemplated on July 24, while in count 2 [section 496(a)], the same time frame, July 24 through August 22, is listed, but the concealment and possession continued through that time beyond the conclusion of the [Vehicle Code section 10851, subdivision (a)] elements.
“That’s my analysis on whether those two offenses are [section] 654 and as a result they will be imposed in consecutive time on count 2 [section 496(a)].”
Finally, the court ordered defendant to pay a state restitution fund fine of $600 and a suspended parole revocation fine of $600. However, the abstract of judgment states that the restitution fund and parole revocation fines are each $1,200. Because respondent concedes the error, we will order the abstract of judgment modified in accordance with the oral pronouncement of judgment.
DISCUSSION
This case involves the interplay between Vehicle Code section 10851, subdivision (a) and section 496(a). Section 496(a) defines the crime of receiving stolen property. It also provides that a person who has been convicted of the theft of property may not also be convicted of receiving the same property. This provision codified the common law rule that prohibits separate convictions of the same person for stealing and receiving the same property. (People v. Allen (1999) 21 Cal.4th 846, 857.)
Vehicle Code section 10851, subdivision (a) defines the crime of unlawful driving or taking of a vehicle. Unlawfully taking a vehicle with the intent to permanently deprive the owner of possession is a form of theft that may be accomplished by driving the vehicle away. (People v. Garza (2005) 35 Cal.4th 866, 871.) Thus, a defendant convicted under Vehicle Code section 10851, subdivision (a) of unlawfully taking a vehicle with the intent to permanently deprive the owner of possession is convicted of a theft and may not also be convicted under section 496(a) of receiving the same vehicle as stolen property. (Ibid.)
However, the common law rule against dual convictions does not apply in the situation “when there is evidence of complete divorcement between the theft and a subsequent receiving, such as when the thief has disposed of the property and subsequently receives it back in a transaction separate from the original theft.” (People v. Jaramillo (1976) 16 Cal.3d 752, 759, fn. 8, italics added.) Thus, a defendant convicted under Vehicle Code section 10851, subdivision (a) of unlawful driving of a vehicle is not convicted of a form of theft and is not precluded from a conviction under section 496(a) for receiving the same vehicle as stolen property. (People v. Garza, supra, 35 Cal.4th at p. 871.)
Here, the jury found defendant guilty as charged under both Vehicle Code section 10851, subdivision (a) and section 496(a). The jury’s general verdict for the Vehicle Code section 10851, subdivision (a) violation did not specify whether it was based on taking, post-theft driving, or both. No special finding or verdict was requested or returned. At issue is whether a defendant who is convicted of a Vehicle Code section 10851, subdivision (a) violation may also be convicted under section 496(a) when the evidence does not exclude the possibility that the defendant committed both theft and nontheft forms of the Vehicle Code section 10851, subdivision (a) offense.
In determining whether defendant’s convictions require reversal, we are guided by certain principles. First, on appeal a judgment is presumed correct, and a party attacking the judgment, or any part of it, must affirmatively demonstrate prejudicial error. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564; People v. Garza, supra, 35 Cal.4th at p. 881.) The second principle is stated in California Constitution, article VI, section 13, which provides, in pertinent part: “No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.” (See People v. Garza, supra, at p. 881.)
Applying those principles here, we begin with the presumption that defendant’s dual convictions for unlawful taking or driving under Vehicle Code section 10851, subdivision (a) and for receiving stolen property under section 496(a) are valid; we will set aside the convictions only if defendant has affirmatively shown prejudicial error amounting to a miscarriage of justice. Defendant contends, and we agree, that the trial court erred when it did not instruct the jury that it could not convict defendant both for theft and for receiving the same stolen property. (People v. Garza, supra, 35 Cal.4th at p. 881; People v. Strong (1994) 30 Cal.App.4th 366, 375-376; People v. Black (1990) 222 Cal.App.3d 523, 525; United States v. Gaddis (1976) 424 U.S. 544, 550.) “To determine whether this error caused prejudice to defendant amounting to a miscarriage of justice, we ask whether it is reasonably probable that a properly instructed jury would have reached a result more favorable to defendant by not convicting him of violating both [Vehicle Code] section 10851, [subdivision] (a) and section 496(a). (See People v. Watson (1956) 46 Cal.2d 818, 836.)” (People v. Garza, supra, 35 Cal.4th at pp. 881-882.)
As noted above, the prosecution only offered circumstantial evidence at trial supporting a Vehicle Code section 10851, subdivision (a) conviction for post-theft driving. Based on this, defendant contends that there was insufficient evidence for the jury to conclude that she drove the vehicle after the initial taking. Thus, defendant argues that, had the jury been properly instructed, she would not have been convicted of section 496(a).
Defendant cites People v. Strong, supra, 30 Cal.App.4th 366, to support her contention. In Strong, the defendant was caught driving a stolen pickup four days after the original crime of taking had been completed. Defendant argues that because she was not caught actually driving the stolen vehicle like the defendant in Strong, the evidence presented in her case was insufficient for the jury to find her guilty of unlawfully driving the truck. Additionally, defendant cites People v. Cratty (1999) 77 Cal.App.4th 98, wherein the defendant was caught driving a vehicle that had been reported stolen approximately eight months before. In that case, the Court of Appeal found the dual conviction permissible since it was undisputed that the defendant was “convicted of (nontheft) unlawful driving under [Vehicle Code section 10851, subdivision (a)].” (People v. Cratty, supra, 77 Cal.App.4th at p. 99.) Defendant cites these cases in an effort to establish that direct evidence is necessary for an unlawful driving conviction under Vehicle Code section 10851, subdivision (a). We are not persuaded. While we agree that the direct evidence in Cratty and in Strong was sufficient to support a finding of post-theft driving, the lack of direct evidence in this case is not dispositive.
We find People v. Garza, supra, 35 Cal.4th 866, instructive. In Garza, a limousine rental company reported one of its vehicles stolen six days after discovering it missing. The same day the vehicle was reported stolen, an officer saw the vehicle parked in a parking lot two to three blocks away from the limousine company’s place of business. The officer testified that when he approached the vehicle, the defendant was seated in the driver’s seat with the key in the ignition and the engine running. (Id. at pp. 872, 882.) The defendant did not offer evidence attacking the officer’s credibility, or suggest that any other person might have driven the car to that parking lot. (Id. at p. 882.) The trial court did not instruct the jury that the defendant could not be convicted of both taking and the receiving of the same stolen property. (Id. at p. 881.) The defendant was convicted of violating both Vehicle Code section 10851, subdivision (a) and section 496(a). (Id. at p. 872.) Our Supreme Court concluded that “[t]he only reasonable inference a juror could draw from the evidence at trial... was that [the] defendant had driven the car there” and “that it [was] not reasonably probable that a properly instructed jury would have found [the] defendant guilty of violating [Vehicle Code] section 10851, [subdivision] (a) by stealing the car but not by [post-theft] driving.” (Id. at p. 882.)
In the present case, defendant unequivocally retained possession of the truck for approximately 28 days after it was taken from Santa Monica. Defendant testified at trial that she had parked the truck where it was found in Carmel on the day of her arrest because she wanted it to be nearby her place of work. Sergeant Tomasi testified that defendant approached the parked truck while he was conducting surveillance of it. Sergeant Tomasi testified that he saw defendant raise her left arm and the lights of the truck light up, and that he heard the doors of the truck unlock. At the time Sergeant Tomasi detained her, defendant had keys with an Enterprise-Rent-A-Car tag in her hand.
At trial, the prosecution presented Sergeant Tomasi’s testimony and encouraged the jury to find that defendant did in fact drive the truck during those 28 days. Like the defendant in Garza, defendant did not offer evidence attacking the officer’s credibility, or suggest that any other person might have driven the truck to the location where the truck was found. Although there was no direct evidence of actual driving, “the only reasonable inference that a juror could draw from the evidence at trial... was that defendant had driven the car there.” (People v. Garza, supra, 35 Cal.4th at p. 882.) Therefore, “it is not reasonably probable that a properly instructed jury would have found defendant guilty of violating [Vehicle Code] section 10851, [subdivision] (a) by stealing the [truck] but not by [post-theft] driving.” (Ibid.) Accordingly, we uphold both convictions by construing defendant’s conviction under Vehicle Code section 10851, subdivision (a) as a nontheft conviction for post-theft driving. (Ibid.)
Defendant lastly contends that even if she is guilty of violating both Vehicle Code section 10851, subdivision (a) and section 496(a), the sentence imposed for the section 496(a) violation should have been stayed pursuant to section 654. Section 654, subdivision (a) “ ‘precludes multiple punishment for a single act or for a course of conduct comprising indivisible acts. “Whether a course of criminal conduct is divisible... depends on the intent and objective of the actor.” [Citations.] “ ‘[I]f all the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once.’ ” [Citation.]’ [Citation.]” (People v. Spirlin (2000) 81 Cal.App.4th 119, 129; People v. Latimer (1993) 5 Cal.4th 1203, 1207-1208; Neal v. State of California (1960) 55 Cal.2d 11, 19.) However, if the defendant harbored “multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct. [Citation.]” (People v. Cleveland (2001) 87 Cal.App.4th 263, 267-268; People v. Solis (2001) 90 Cal.App.4th 1002, 1021; People v. Alvarado (2001) 87 Cal.App.4th 178, 196.)
The determination of whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312; People v. Herrera (1999) 70 Cal.App.4th 1456, 1466.) Its findings will not be reversed on appeal if there is any substantial evidence to support them. (People v. Hutchins, supra, 90 Cal.App.4th at p. 1312; People v. Herrera, supra, 70 Cal.App.4th at p. 1466; People v. Nichols (1994) 29 Cal.App.4th 1651, 1657.) We review the trial court’s determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence. (People v. Hutchins, supra, 90 Cal.App.4th at pp. 1312-1313.)
The trial court’s statements at sentencing indicate that it engaged in an analysis of whether the two offenses were committed with the same intent and objective. Defendant urges us to find that she took the car from Symington’s possession with the sole objective of having a vehicle to drive. The trial court found that although the offenses were clearly related, they were “a separate transaction.” Based on the evidence at trial, the court reasonably determined that defendant’s original intent on the night of her theft was to take or drive the truck away from Symington’s apartment in Santa Monica, while her intent and objective thereafter was to continue to use the truck while staying and working in Carmel for the next 28 days. Section 654 does not preclude multiple punishments for two offenses when, as here, the intents and objectives of the two offenses are determined to be different.
DISPOSITION
The abstract of judgment is ordered modified by reducing both the restitution fund (Pen. Code, § 1202.4, subd. (b)) and suspended parole revocation (Pen. Code, § 1202.45) fines from $1,200 to $600. As so modified, the judgment is affirmed. The clerk of the superior court shall forward a copy of the modified abstract to the Department of Corrections and Rehabilitation.
WE CONCUR: Mcadams, J., Duffy, J.
Section 496(a), provides, in relevant part: “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.... [¶]... However, no person may be convicted both pursuant to this section and of the theft of the same property.”