Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County. Super. Ct. No. BF114614A Clarence Westra, Jr., Judge.
Alister McAlister, 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, Julie A. Hokans and John A. Bachman, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Kane, J.
While driving a stolen car, appellant Robert Spiller was pulled over for a traffic violation. The California Highway Patrol (CHP) officer at the scene ascertained the car was stolen, and when a second officer arrived to provide assistance, appellant suddenly drove off. Appellant attempted to avoid CHP pursuit in a high speed chase, crashed the vehicle into a fence, fled on foot, and was finally arrested. He was charged with, among other things, vehicle theft, grand theft of an automobile, receipt of stolen property and evading an officer with willful disregard for the safety of others. The information included an allegation of a serious prior felony for purposes of the “Three Strikes” law and that appellant had served two prior prison terms within the meaning of section 667.5, subdivision (b). Appellant was convicted by the jury on all counts except that of grand theft. In computing the sentence, the trial court used the upper term of three years for the vehicle theft conviction, which was doubled due to the “strike” prior, added one year and four months for the conviction for evading an officer with willful disregard for the safety of others, and added one more year due to a previous prison term, for a total sentence of eight years and four months. Appellant appealed, contending among other things that: (a) sentencing error occurred under Cunningham v. California (2007) 549 U.S. __ [127 S.CT. 856] (Cunningham); (b) the enhancement based on a prior prison term was improperly applied because appellant never admitted to the prison term; and (c) appellant was improperly convicted of both stealing and receiving the same property. We conclude the conviction for receiving stolen property must be vacated, but otherwise affirm the judgment.
See Penal Code section 667, subdivisions (b) through (i), and Penal Code section 1170.12, subdivisions (a) through (d). Unless otherwise indicated, all further statutory references are to the Penal Code.
FACTUAL BACKGROUND
The facts supporting the prosecution case are uncomplicated. On October 24, 2005, CHP Officer Torres noticed that a brown sedan had unlawfully driven on the shoulder to pass a number of vehicles waiting at a freeway off-ramp. He pulled the car over. It was driven by appellant, who admitted to Officer Torres he had no driver’s license. Appellant claimed the vehicle belonged to his aunt. When Officer Torres ran a computer check on the vehicle, a 1988 Buick sedan, he learned it was recently reported as stolen. A second CHP officer (i.e., Officer Vidal) arrived at the scene to provide assistance in making the arrest. Appellant abruptly drove away, and both CHP officers pursued. The two CHP vehicles were clearly marked black and white patrol cars with official insignia and, during the chase, sirens and red flashing lights were activated. Appellant drove four or five miles at high speed while running several red lights, turned onto a side street and hit a fence. He then fled on foot and was arrested when he was found hiding under a nearby car. After his arrest, appellant claimed the car was loaned to him by a Jimmy Lee, but no such person was ever found.
The owner of the 1988 Buick, Douglas Minner, confirmed the car was stolen from the parking area of his condominium complex. Mr. Minner stated the car was locked, but it was possible his wife may have left a key in it.
The defense case consisted primarily of appellant’s own testimony. According to appellant, he fled from the traffic stop because he became scared. There was a warrant out for his arrest and he could see the officers draw their weapons, so he tried to get away. He admitted he was evading the officers. He testified he got the car from a friend named Jimmy Lee, and denied telling the officers that he borrowed the car from his aunt. Appellant claimed the car did not crash into the fence, but only pushed up against it when he parked it there. He did not notice any property damage. He claims that at the time of his arrest, one officer placed a foot on his neck and the other kicked him in the face, which is why he was sent to the hospital.
On rebuttal, Officer Torres testified that appellant was sent to the hospital because he complained that during the chase he had bumped his head. Although appellant had no visible injuries, he was sent to the hospital as a precaution. Officer Torres denied that appellant was ever kicked.
PROCEDURAL HISTORY
The district attorney filed an information in the Kern County Superior Court on May 30, 2006, charging appellant with the following counts: (1) vehicle theft (Veh. Code, § 10851, subd. (a)); (2) grand theft of an automobile (§ 487, subd. (d)(1)); (3) receipt of a stolen vehicle (§ 496d); (4) evading an officer while operating a motor vehicle with a willful disregard for safety of others (Veh. Code, § 2800.2); (5) driving without a license (Veh. Code, § 12500, subd. (a)); (6) hit and run (Veh. Code, § 20002, subd. (a)); and (7) resisting arrest (§ 148, subd. (a)(1)). The information also alleged appellant had a prior serious felony conviction that qualified him for sentencing under the Three Strikes law, and that he had served two prior prison terms for purposes of sentence enhancement under section 667.5, subdivision (b).
A jury convicted appellant on all counts except grand theft. Appellant waived a jury trial on the priors and admitted the prior convictions and, as discussed hereafter, the prison term allegations.
On September 28, 2006, appellant was sentenced. In computing the sentence, the trial court used the upper term of three years for the vehicle theft conviction (Veh. Code, § 10851, subd. (a)), which was doubled due to the “strike” prior (§ 667, subd. (e)). The court added a consecutive sentence of one year and four months for the conviction of evading an officer with willful disregard for the safety of others (Veh. Code, § 2800.2), and a one-year enhancement was applied due to a previous prison term (§ 667.5, subd. (b)), yielding a total sentence of eight years and four months. The sentence on the conviction for receipt of a stolen automobile was stayed, the second prior prison term allegation was stricken for sentencing purposes, and the remaining counts received concurrent six-month sentences.
On November 1, 2006, appellant timely appealed.
DISCUSSION
I. No Cunningham Error
At the sentencing hearing in this case, the trial court noted that it had read and considered the probation report. The trial court found no factors in mitigation, and the following factors were found in aggravation: (1) appellant was previously committed to the Department of Corrections; (2) appellant was on two separate grants of misdemeanor probation at the time of the commission of the current offense; (3) appellant’s prior performances on probation and parole were unsatisfactory in that he failed to abide by terms of probation and/or parole and has reoffended; and (4) appellant’s prior convictions as an adult and sustained petitions in juvenile delinquency proceedings were “numerous.” The trial court imposed the upper term based on these four factors in aggravation. It is clear that all four factors relied upon by the trial court related to appellant’s recidivism.
The probation report included ten convictions as an adult, as well as seven adjudications as a juvenile.
Appellant contends under Cunningham that the trial court erred when it imposed the upper term based on sentencing factors that were not decided by a jury or admitted by appellant. According to appellant, this violated his right to trial by jury and consequently the sentence must be modified by this court to impose the middle term. As explained hereafter, we disagree.
In Cunningham, the United States Supreme Court held that California’s determinate sentencing law violated the Sixth Amendment right to a jury trial to the extent that it authorized a trial court to impose an upper term sentence based on aggravating circumstances found by the court rather than by a jury beyond a reasonable doubt. (Cunningham, supra, 549 U.S. at pp. __ [127 S.Ct. at pp. 860, 870].) At the same time, the Cunningham decision continued to recognize the principle articulated in prior cases such as Almendarez-Torres v. United States (1998) 523 U.S. 224, 246, that the fact of a prior conviction need not be submitted to a jury. (See Cunningham, supra, at pp. __ [127 S.Ct. at pp. 860, 864, 868].)
In People v. Black (2007) 41 Cal.4th 799 (Black II), the California Supreme Court revisited these sentencing law issues in light of Cunningham. In Black II, it was held that “as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial.” (Black II, supra, at p. 812.) Thus, “so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury.” (Black II, supra, at p. 813.) In summary, “imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (Black II, supra, at p. 816.)
(Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi).) As noted in Black II, “under the line of high court decisions beginning with Apprendi … the constitutional requirement of a jury trial and proof beyond a reasonable doubt applies only to a fact that is ‘legally essential to the punishment’ [citation], that is, to ‘any fact that exposes a defendant to a greater potential sentence’ than is authorized by the jury’s verdict alone [citation].” (Black II, supra, 41 Cal.4th at p. 812.) Apprendi also examined the right to jury trial in criminal cases as it existed at common law, and observed that “nothing in this history suggests that it is impermissible for judges to exercise discretion -- taking into consideration various factors relating both to offense and offender -- in imposing a judgment within the range prescribed by statute.” (Apprendi, supra, at p. 481.)
The United States Supreme Court has consistently affirmed that the right to a jury trial does not apply to the fact of a prior conviction. (See Cunningham, supra, 549 U.S. at pp. __ [127 S.Ct. at pp. 864, 868]; Apprendi, supra, 530 U.S. at p. 490; Almendarez-Torres v. United States, supra, 523 U.S. at pp. 243-244.) “[R]ecidivism … is a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence.” (Almendarez-Torres, supra, at p. 243.) Moreover, as indicated in Black II, the prior conviction exception is not read in a narrow sense, but extends to other recidivism-related factors that may be determined by examining the records of the prior convictions. (Black II, supra, 41 Cal.4th at p. 819; see also People v. McGee (2006) 38 Cal.4th 682, 703-706 [court may determine that prior conviction constituted a serious felony]; People v. Yim (2007) 152 Cal.App.4th 366, 371 [court may determine unsatisfactory performance on parole or probation]; People v. Thomas (2001) 91 Cal.App.4th 212, 220-223 [court may determine the defendant served prior prison term].)
Contrary to appellant’s suggestion, the trial court was permitted to consider appellant’s unsatisfactory performance on parole or probation. (People v. Yim, supra, 152 Cal.App.4th at p. 371.)
In the present case, the trial court sentenced appellant to the upper term based on four factors in aggravation, all of which were based on appellant’s criminal history and record of prior convictions. Since these were recidivism-related factors that could be determined by reference to court records pertaining to appellant’s prior convictions, sentences, probations and paroles, appellant was not entitled to a jury trial thereon. (People v. Yim, supra, 152 Cal.App.4th at p. 371.) All four factors in aggravation were properly established by the court, and under Black II only one is necessary to make appellant eligible to be sentenced to the upper term. (Black II, supra, 41 Cal.4th at pp. 812, 816.) Accordingly, imposition of the upper term did not violate appellant’s right to trial by jury.
We note that one of the four factors referenced by the trial court was the sheer number of prior adult convictions and juvenile adjudications. The probation report listed ten convictions as an adult and seven adjudications as a juvenile. Appellant argues it was error for the trial court to consider juvenile adjudications in considering the factor of recidivism. We disagree and would follow the authorities permitting the trial court to consider juvenile adjudications. (See, e.g., People v. Lee (2003) 111 Cal.App.4th 1310, 1313-1316.) But even if it was error to consider the juvenile dispositions, any error in this regard was clearly harmless in light of the number of adult convictions sustained by appellant as well as the other recidivism-related factors properly relied on by the trial court.
II. Enhancement Based on Prior Prison Term
Appellant contends he did not admit to the prior prison term allegation upon which the trial court based its one-year sentence enhancement under section 677.5, subdivision (b), and therefore the enhancement must be stricken. We reject appellant’s argument.
Appellant informed the trial court of his intention to admit to all of the priors as alleged in the information. At which point, the trial court admonished appellant to make sure he understood that the effect of such priors “could be to add over and above any present time you might receive,” including to potentially “double the sentence you would receive on the other -- on the charges, plus up to two additional years.” The priors, as alleged in the information, were as follows: Prior 1: A 1997 conviction of section 212.5, subdivision (c), a felony offense within the meaning of section 667, and subdivisions (a) through (e) of section 1170.12; Prior 2: The same 1997 conviction, with allegations that a prior prison term resulted therefrom within the meaning of section 667.5, subdivision (b); and Prior 3: A 1995 conviction of Vehicle Code section 10851, subdivision (a), a felony, with allegations that a prison term resulted therefrom within the meaning of section 667.5, subdivision (b).
As originally alleged, the priors were listed in the above order but were unnumbered. We have assigned numbers to them for convenience.
The prosecutor then took appellant’s admission of the three priors alleged in the information. In taking the admission of Prior 2, the prosecutor inadvertently referred to Prior 2 as relating to the same code sections that were alleged in Prior 1, rather than section 667.5, subdivision (b). Almost immediately thereafter, the prosecutor corrected her misstatement, as follows:
“[Prosecutor]: Your Honor, with regards to the prior on the second prior admission, because of the way that I worded it, I believe [appellant] admitted a second strike, and that would not be my intention. It should have been pursuant to Penal Code section 667.5 subsection (b).
“The Court: We’ll direct the minutes to reflect that he admitted that as an allegation under 667.5(b). That’s the way it was alleged, correct?
“[Prosecutor]: Yes.
“The Court: You just misstated it.
“[Prosecutor]: Yes.
“The Court: It’s admitted as a 667.5(b) allegation and you stipulate that the minutes could be ordered to reflect that, [defense counsel]?
“[Defense Counsel]: Yes, your Honor.”
At the time of sentencing, the trial court sentenced appellant to a total term of eight years and four months. This included a single one-year enhancement for a prior prison term based on section 667.5, subdivision (b). The court stated: “[T]he Court does order that [appellant] serve one year pursuant to a single 667.5 B allegation and the Court does for the purposes of sentencing strike the second 667.5 B allegation.” Although the oral pronouncement of sentence did not differentiate which prior was stricken, the subsequent minute order indicates it was the third allegation (or Prior 3) that was stricken by the court for sentencing purposes.
Based on these facts, appellant claims he never effectively admitted the prison term set forth in Prior 2, which was the basis for the one-year enhancement. We disagree for two reasons. First, it is clear that appellant did admit to the conviction itself set forth in Prior 2. In People v. Cardenas (1987) 192 Cal.App.3d 51, the court viewed the admission of the prior convictions alleged in the information to include the admission of the prior prison terms that were served for those convictions: “Generally, an admission of prior convictions where the charging information specifically alleges the convictions resulted in prior separate prison terms is deemed an admission such prison terms were separately served.” (Id. at p. 61.) We agree with this analysis. Second, the prosecutor’s initial misstatement was quickly corrected and it was expressly clarified that the admission of Prior 2 was intended to be for purposes of section 667.5, subdivision (b), as alleged in the information. Defense counsel stipulated to the prompt correction. Under such circumstances, and looking at the entire exchange that occurred, appellant clearly understood his admission was pursuant to section 667.5.
Finally, even if error existed it was harmless. The trial court obviously sought to impose a one-year enhancement based upon one of the two alleged prison terms and to strike the other one. There is no dispute that appellant did explicitly admit the prison term allegations in Prior 3. This latter admission is sufficient to support the enhancement. We conclude that no reversible error occurred in regard to imposition of the one-year enhancement because (1) appellant effectively admitted Prior 2, and (2) any error in that regard was harmless.
III. Receiving Stolen Property
Appellant was convicted in count 1 of vehicle theft (Veh. Code, § 10851, subd. (a)) and in count 3 of receiving the vehicle as stolen property (§ 496d). He argues his conviction for receiving stolen property should be “stricken” because he could not be convicted of both taking and receiving the same stolen car. Section 496 specifically prohibits a conviction of receiving stolen property and theft of the same property. (§ 496, subd (a).)
Vehicle Code section 10851, subdivision (a), criminalizes unlawful driving or taking of a vehicle without the owner’s consent. The two acts are distinguishable, and hence a conviction under Vehicle Code section 10851, subdivision (a), is not necessarily a theft conviction. “For this reason, a defendant convicted under [Vehicle Code] section 10851(a) of unlawfully taking a vehicle with the intent to permanently deprive the owner of possession has suffered a theft conviction and may not also be convicted under section 496(a) of receiving the same vehicle as stolen property. On the other hand, unlawful driving of a vehicle is not a form of theft when the driving occurs or continues after the theft is complete (for convenience we will refer to this as post theft driving). Therefore, a conviction under [Vehicle Code] section 10851(a) for post theft driving is not a theft conviction and does not preclude a conviction under section 496(a) for receiving the same vehicle as stolen property.” (People v. Garza (2005) 35 Cal.4th 866, 871.)
In People v. Garza, supra, 35 Cal.4th 866, the Supreme Court addressed the issue of “whether a conviction under [Vehicle Code] section 10851(a) for unlawful taking or driving of a vehicle bars a conviction under section 496(a) for receiving the same vehicle as stolen property when the evidence at trial adequately supported the [Vehicle Code] section 10851(a) conviction on either a taking or a post theft driving theory, the prosecutor argued both the taking and the post theft driving theories to the jury, the trial court’s instructions did not require the jury to choose between the theories and did not explain the rule prohibiting convictions for stealing and receiving the same stolen property, and the jury’s guilty verdict did not disclose which theory or theories the jurors accepted.” (Id. at p. 871.) The Garza court concluded that if the evidence is sufficient to establish a conviction for post theft driving -- that is, “it is not reasonably probable that a properly instructed jury would have found that the defendant took the vehicle but did not engage in any post theft driving,” a reviewing court may construe the conviction as one for post theft driving and on that basis uphold the conviction for receiving stolen property. (Id. at p. 872.)
Here, although both taking and driving were alleged in count 1, it appears the case was prosecuted exclusively on a theory that appellant stole the vehicle. The prosecutor’s closing argument asserted that the car was stolen by appellant and no mention was made of unlawful driving. The verdict form returned by the jury found appellant guilty of “[Taking the] Vehicle Without [the] Owner’s Consent.” When the verdict was read in court, it stated the jury found appellant guilty of “taking a vehicle without owner’s consent, in violation of section 10851 subsection (a) of the Vehicle Code.” We conclude that here, unlike the situation in Garza, the jury clearly convicted appellant of theft of the vehicle, not post theft driving. Accordingly, his conviction in count 3 of receiving stolen property must be reversed.
Since the sentence for receiving stolen property was stayed pursuant to section 654, there is no need to remand the matter for resentencing.
DISPOSITION
The conviction for receiving stolen property is reversed. The clerk of the superior court is directed to amend the abstract of judgment accordingly. In all other respects, the judgment is affirmed.
WE CONCUR: Gomes, Acting P.J., Dawson, J.