Opinion
F072713
10-11-2017
THE PEOPLE, Plaintiff and Respondent, v. JESSE LOPEZ RIOS, Defendant and Appellant.
Stephen Gilbert, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Gregory B. Wagner, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Madera Super. Ct. No. MCR041351A)
OPINION
APPEAL from a judgment of the Superior Court of Madera County. Joseph A. Soldani, Judge. Stephen Gilbert, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Gregory B. Wagner, Deputy Attorneys General, for Plaintiff and Respondent.
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BACKGROUND
In an information filed in July 2011, defendant Jesse Lopez Rios (appellant) was charged with felony vandalism (Pen. Code, § 594, subd. (a); count 1); misdemeanor tampering with an electrical line (§ 591; count 2); and misdemeanor receipt of stolen property (§ 496, subd. (a); count 3). A jury convicted appellant on all three counts.
All further statutory references are to the Penal Code unless otherwise stated.
The information also alleged appellant had suffered a prior serious or violent felony or juvenile adjudication in 1979. However, the court struck this allegation pretrial pursuant to a People v. Superior Court (Romero) (1996) 13 Cal.4th 497 motion filed by appellant.
The court sentenced appellant on September 25, 2015. On count 1, the court sentenced appellant to an aggravated term of 3 years in county jail, with the last two years to be served under mandatory supervision (see § 1170, subd. (h)(5)(A).) On counts 2 and 3, the court sentenced appellant to time served. Appellant challenges several aspects of the judgment.
On each of counts 2 and 3, the court sentenced appellant to 29 days of confinement with 29 days credit for time served.
Appellant argues that he was improperly charged with felony vandalism because a more specialized statute applied to his alleged conduct: section 591. (See generally In re Williamson (1954) 43 Cal.2d 651 (Williamson).) Respondent counters that the Williamson rule does not apply as there is no "conflict" between felony vandalism and section 591 because both crimes are subject to the same maximum punishment. (See People v. Rader (2014) 228 Cal.App.4th 184, 194-200 (Rader).) We reject respondent's contention because the two crimes did not carry the same maximum punishment in July 2011 when appellant was charged in this case. Respondent also contends that the Williamson rule does not apply because felony vandalism and section 591 do not share the same elements. However, the fact that the two crimes do not share the same elements is not dispositive. (See People v. Murphy (2011) 52 Cal.4th 81, 87 (Murphy).) It is sufficient that " 'it appears from the statutory context that a violation of the special statute will necessarily or commonly result in a violation of the general statute.' [Citation.]" (Id. at p. 86, italics added.)
We reject appellant's additional claims that section 591 is a lesser included offense of section 594; that he was improperly convicted for receiving stolen property he stole himself; and that his sentence contravenes section 654.
We reverse appellant's conviction for felony vandalism and remand for resentencing. We otherwise affirm the judgment.
FACTS
On July 1, 2011, Detective Zachary Zamudio was called to Highway 99 and Avenue 12. Zamudio saw a white Mitsubishi truck parked on the shoulder. A bundle of black wire was on the ground a few feet from the truck. Eventually, he saw two males walking towards him on the east side of nearby railroad tracks. One of the men was appellant.
Detective Zamudio is now a sergeant.
Detective Zamudio asked appellant what the two men were doing there. Appellant said they had run out of gas and were "collecting loose wire and pieces of metal to scrap." Zamudio asked about the bundle of wire near the truck. Appellant initially said he found the wire on the side of the road. Later, appellant took Zamudio to a pole with a hanging wire and said he had cut the wire from it. Appellant gave Zamudio wire cutters he had in his back pocket.
Officer Timothy Souza testified thieves would often steal wire for the copper, which had recycle value.
Detective Zamudio initially testified it was a "telephone" pole, but said he did not know if the pole actually belonged to a telephone company or Union Pacific Railroad.
While speaking with appellant about the wire next to the truck, law enforcement learned a signal wire for the Union Pacific Railroad had been tripped. Detective Zamudio also heard from a Union Pacific Railroad signal maintainer that additional wire had potentially been cut. Zamudio asked appellant if he had cut any other wire in the area and appellant initially said no. Later, appellant said "he did cut the casing off of what they called aerial wire [a]nd pulled the casing apart, but didn't take any wire." The damaged aerial wire was about 150 to 200 feet north of the other cut wire.
Signal wires are how the dispatcher communicates with train crews. Signal wires carry low voltage electricity.
In 2011, the cost of replacement wire was between $4.50 and $5.00. Approximately 200 feet of wire had been cut out, so the approximate replacement cost was $1,000. The cost to repair the aerial wire was $4,200, which included the cost of wire replacement, "man hours" for repair, and train delays in the area.
DISCUSSION
I. Appellant's Conviction for Violating Section 594 Violates the Rule of Williamson
Appellant's first argument on appeal "is premised on a doctrine often referred to as the Williamson rule, based on [the Supreme Court's] decision in ... Williamson.... Under the Williamson rule, if a general statute includes the same conduct as a special statute, the court infers that the Legislature intended that conduct to be prosecuted exclusively under the special statute." (Murphy, supra, 52 Cal.4th at p. 86.) The Williamson rule " 'is not one of constitutional or statutory mandate, but serves as an aid to judicial interpretation when two statutes conflict.' [Citation.]" (Murphy, supra, at p. 86.) Consequently, "indication of legislative intent to the contrary" can preclude application of the Williamson rule. (Murphy, supra, at p. 86.)
A. A Violation of Section 591 will Commonly Result in a Violation of Section 594
"Absent some indication of legislative intent to the contrary, the Williamson rule applies when (1) 'each element of the general statute corresponds to an element on the face of the special statute' or (2) when 'it appears from the statutory context that a violation of the special statute will necessarily or commonly result in a violation of the general statute.' [Citation.]" (People v. Murphy, supra, at p. 86.) We conclude that a violation of section 591 will commonly constitute vandalism, and therefore the former is a special statute as to the latter.
Felony vandalism occurs when a defendant (1) maliciously defaces, damages or destroys property, (2) that he or she did not own, (3) causing damage of $400 or more. (CALCRIM No. 2900.) A violation of section 591 occurs when a defendant "takes down, removes, injures, disconnects, cuts or obstructs" certain "line[s]," such as electrical lines. (§ 591.) To describe these crimes is to see that violating the special statute will commonly constitute vandalism (i.e., the general statute). Usually, if one "takes down, removes, injures, disconnects, cuts or obstructs" (§ 591) a line, they have also necessarily "damage[d]" or "destroye[d]" (§ 594, subd. (a)) that line.
Section 591 also contains an alternative actus reus: "mak[ing] an unauthorized connection with any line, other than a telegraph, telephone, or cable television line, used to conduct electricity, or any part thereof, or appurtenances or apparatus connected therewith...." (§ 591.) Appellant was not accused of making an "unauthorized connection" to "any line" in this case.
It is true that, as respondent points out, it is theoretically possible to violate section 591 without violating section 594. For example, a defendant may injure or disconnect a line but cause less than $400 damage in doing so. But the fact "that the general statute contains an element not within the special statute does not necessarily mean that the Williamson rule does not apply." (Murphy, supra, 52 Cal.4th at p. 87.)
B. There is a Sufficient "Conflict" Between Sections 591 and 594 to Trigger the Williamson Rule
In Rader, supra, 228 Cal.App.4th 184, the Court of Appeal held that there must be a "conflict" between the special and general statutes at issue before the Williamson rule applies. (Rader, supra, at pp. 194-200.) The necessary "conflict" can take several forms: (1) a conflict in the sentencing aspects of the two crimes (ibid., citing People v. Gilbert (1969) 1 Cal.3d 475); (2) a conflict in the applicable statutes of limitation (Rader, supra, at pp. 197-198, citing Gasaway v. Superior Court of Santa Clara County (1977) 70 Cal.App.3d 545); or (3) a conflict in the " ' "elements to prove ... the statutes at issue" ' " (Rader, supra, at pp. 195-197, citing People v. Artis (1993) 20 Cal.App.4th 1024).
Respondent argues there is no sentencing conflict here because "the maximum sentences for both offenses are the same." Specifically, both crimes are currently subject to the same maximum penalty: a jail term pursuant to section 1170, subdivision (h) (i.e., 16 months, two years or three years), and a fine of up to $10,000. (§§ 591, 594, subd. (b)(1) [if damage is more than $400 but less than $10,000, defendant subject to imprisonment under § 1170, subd. (h)].) But the statutes read differently in July of 2011, and that fact is important for the reasons discussed below.
The purpose of the Williamson rule is to help discern the ultimate issue of whether the Legislature intended for the appellant's "conduct to be prosecuted exclusively under the special statute." (Murphy, supra, 52 Cal.4th at p. 86, italics added.) Thus, Rader observes there must "be a conflict between the two provisions before the general and specific statutes jurisprudence can limit prosecutorial charging discretion." (Rader, supra, 228 Cal.App.4th at p. 198, italics added.) In other words, any violation of legislative intent as discerned under the Williamson rule would first occur when a defendant is charged with violating a general statute rather than a special statute. Here, the relevant exercise of prosecutorial discretion (i.e., the filing of the information) occurred in July 2011. Thus, to determine whether the exercise of prosecutorial discretion in this case fell within the limits of the Legislature's intent under the Williamson rule, we must look to the pertinent statutes as they read in July 2011. At that time, the sentencing provisions of sections 591 and 594 were considerably different.
The version of section 591 operative in July 2011 provided for punishment of "imprisonment in the state prison, or by a fine not exceeding five hundred dollars ($500), or imprisonment in the county jail not exceeding one year." (Stats.1986, ch. 756, § 2; see also People v. McElroy (2005) 126 Cal.App.4th 874, 883.) The version of section 594, subdivision (b)(1) operative in July 2011 provided for punishment as follows: "[i]f the amount of defacement, damage, or destruction is four hundred dollars ($400) or more, vandalism is punishable by imprisonment in the state prison or in a county jail not exceeding one year, or by a fine of not more than ten thousand dollars ($10,000) ... or by both that fine and imprisonment." (Stats.2008, ch. 209 (A.B.2609), § 1.) Because there was a conflict in the sentencing provisions of the two statutes in July 2011, we reject respondent's contention that there is no relevant sentencing conflict.
Both sections 591 and 594 were amended April 4, 2011, but those amendments were operative no earlier than October 1, 2011.
Moreover, while respondent notes that the "conflicts that permit the rule to apply are typically those between the elements required to prove either statute or the punishments for the statutes," cases have also looked to whether the relevant statutes of limitation differ. (Gasaway v. Superior Court of Santa Clara County, supra, 70 Cal.App.3d at p. 550; Rader, supra, 228 Cal.App.4th at pp. 197-200 ["There is no conflict in the elements, punishment or statutes of limitations."].) The statutes of limitations applicable to felony vandalism and a misdemeanor violation of section 591 are not the same. (Compare §§ 594, subd. (b)(1); 801, with §§ 591, 802, subd. (a).)
The same result would obtain under the statutes of limitation operative in July 2011.
Consequently, we conclude there are sufficient "conflicts" between the relevant statutes, and the Williamson rule applies. Appellant's conviction for violating section 594 must be reversed. Because we are reversing the conviction underlying the principal term of appellant's sentence, we will remand to the trial court for resentencing. (People v. Bustamante (1981) 30 Cal.3d. 88, 104, fn. 12, abrogated on other grounds as noted by People v. Cook (2007) 40 Cal.4th 1334, 1353-1354.) On remand, "the trial court retains jurisdiction over the entire cause as needed to make the necessary modifications in the sentence." (People v. Bustamante, supra, at p. 88, fn. 12.)
As a result, appellant's other contentions concerning the vandalism count are moot.
II. Violating Section 591 is Not a Lesser Included Offense of Vandalism
Appellant contends he was improperly convicted on counts 1 and 2 because violating section 591 is a lesser included offense of violating section 594. While this contention is arguably mooted by our reversal of count 1, we will briefly address it.
"[M]ultiple convictions may not be based on necessarily included offenses. [Citations.]" (People v. Pearson (1986) 42 Cal.3d 351, 355, italics in original, abrogated on another point by People v. Vidana (2016) 1 Cal.5th 632, 651.) In this context, we use the "elements test" to determine whether one offense is necessarily included in another. (People v. Reed (2006) 38 Cal.4th 1224, 1231.) That test provides that "if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former...." (Id. at p. 1227.) This analysis is done "in the abstract" (People v. Steele (2000) 83 Cal.App.4th 212, 218, italics in original); i.e., without consideration of "the evidence adduced at trial." [Citations.]" (Id. at pp. 217-218.) In other words, we ask whether it is "theoretically possible" to commit the greater offense without committing the lesser. (See id. at p. 218.)
Another test for determining whether one offense is necessarily included in another is called the accusatory pleading test. Appellant relies on the accusatory pleading test. While that test is appropriate in other contexts, it is not the appropriate test when deciding whether a defendant may be convicted of multiple charged offenses. (People v. Reed, supra, 38 Cal.4th at p. 1231.)
Here, it is possible to violate section 594 without violating section 591. For one, section 591 only concerns certain wires or "lines." Consequently, vandalizing anything other than "a line of telegraph, telephone, or cable television, or any line used to conduct electricity, or any part thereof, or appurtenances or apparatus connected therewith" would not violate section 591 but would violate section 594. Because it is possible to commit vandalism without violating section 591, the latter is not a lesser included offense of the former.
III. Appellant was Not Improperly Convicted of Theft and Receipt of the Same Stolen Property
Appellant contends he was improperly convicted of theft of property and of receiving the same property.
A defendant may not be convicted of both receiving stolen property under section 496 and theft of the same property. (§ 496, subd. (a).) But here, appellant was only convicted of receiving stolen property, not theft.
Appellant argues that the vandalism count was based on his own taking of property. Specifically, he says the "acts proving count one - the unlawful acquisition and asportation of the property of another - describe what we have traditionally called theft." In People v. Allen (1999) 21 Cal.4th 846 (Allen), the appellant made a similar argument that "the word 'theft' in the 1992 amendment should be expansively read to mean 'the unlawful acquisition of property' - a general description" that would include crimes other than literal theft. (Id. at p. 862.) The Supreme Court rejected the argument, concluding that there was "no reason to believe ... that when the Legislature used the term 'theft' in the 1992 amendment, it intended any meaning broader than the meaning the term has in the general theft statute ([] § 484), i.e., theft committed by means of larceny, embezzlement, or false pretenses. [Citation.]" (Id. at p. 863.) Consequently, the rule did not apply to other crimes like burglary even though the burglarious entry was done "with intent to commit theft." (Id. at p. 863, fn. 18.)
Under Allen, we conclude that "theft" in section 496, subdivision (a) refers only to theft under section 484. Because appellant was convicted of vandalism, rather than theft, his contention lacks merit.
IV. Appellant's Section 654 Claim is Moot
Appellant contends his sentences on counts 2 and 3 should be stayed under section 654. Respondent argues the contention is moot because on counts 2 and 3, appellant was only sentenced to time already served. We agree the issue is moot.
A. Section 654
Plainly stated, section 654 " 'prohibits multiple punishment for the same "act or omission." ' " (People v. Correa (2012) 54 Cal.4th 331, 337.) " 'Although [section 654] "literally applies only where ... punishment arises out of multiple statutory violations produced by the 'same act or omission," ' [the Supreme Court has] extended its protection "to cases in which there are several offenses committed during 'a course of conduct deemed to be indivisible in time.' [Citation.]" [Citation.]' [Citation.]" (People v. Ramirez (2006) 39 Cal.4th 398, 478.)
B. Law of Mootness
" ' "As a general rule, 'an appeal presenting only abstract or academic questions is subject to dismissal as moot.' [Citation.]" [Citation.]' [Citation.] ' "When no effective relief can be granted, an appeal is moot and will be dismissed." [Citations.]' [Citations.] ' " 'It necessarily follows that when, pending an appeal from the judgment of a lower court, and without any fault of the defendant, an event occurs which renders it impossible for this court, if it should decide the case in favor of plaintiff, to grant him any effectual relief whatever, the court will not proceed to a formal judgment, but will dismiss the appeal.' " [Citations.]' [Citations.]" (People v. Travis (2006) 139 Cal.App.4th 1271, 1280.)
C. Appellant's Section 654 Claim is Moot
Here, the relief sought by appellant is a stay execution of sentence on counts 2 and 3. But those sentences were for 29 days in jail, with 29 days of credit for time served. As a result, " ' "no effective relief can be granted" ' " (People v. Travis, supra, 139 Cal.App.4th at p. 1280, italics added) and the issue is moot.
DISPOSITION
Appellant's conviction on count 1 is reversed. The matter is remanded to the trial court for resentencing. In all other respects, the judgment is affirmed.
/s/_________
BLACK, J. WE CONCUR: /s/_________
HILL, P.J. /s/_________
PEÑA, J.
Judge of the Fresno Superior Court assigned by the Chief Justice pursuant to article IV, section 6 of the California Constitution. --------