Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County Super. Ct. No. SCD194165, Roger W. Krauel, Judge.
McDONALD, Acting P. J.
A jury convicted Douglas Vasquez of two counts of grand theft of an automobile (Pen. Code, § 487, subd. (d)(1), counts 1 and 5), two counts of unlawfully driving or taking a vehicle (Veh. Code, § 10851, subd. (a), counts 3 and 6), and one count of selling a stolen vehicle (§ 496d, count 4). He asserts the evidence does not support the count 6 unlawful driving conviction or, in the alternative, it was improper to convict him of count 6 because it is a lesser included offense to count 5; and the court's sentences imposed on counts 3 and 4 should have been stayed under section 654.
All statutory references are to the Penal Code unless otherwise specified.
FACTS
Prosecution Case
On July 21, 2005, Vasquez stole a 1992 Honda Accord. Two days later, Vasquez was at a local taco shop and saw Mr. Fernando, who was driving a 1990 Accord. Vasquez, who was then driving the 1992 Accord, told Fernando that Vasquez's girlfriend had recently bought the 1992 Accord but it needed mechanical work. Vasquez offered, and Fernando agreed, to exchange the stolen 1992 Accord for Fernando's 1990 Accord. They rendezvoused later at a different locale to exchange paperwork and keys, and they parted company with Vasquez driving the 1990 Accord and Fernando driving the stolen 1992 Accord.
Several weeks later, Fernando was driving the 1992 Accord when he was stopped by police and arrested. Fernando subsequently explained the circumstances under which he acquired the car and gave Vasquez's address to police. Police then went to Vasquez's house, where they found the 1990 Accord.
Defense Case
Vasquez's girlfriend testified she paid an unknown man $1000 for the 1992 Accord. The next day, Vasquez asked if she wanted to trade the car for the 1990 Accord and she agreed.
ANALYSIS
A. The Evidence Is Insufficient to Support the Conviction on Count 6
Vasquez was convicted in count 6 of violating Vehicle Code section 10851, subdivision (a), which requires proof that Vasquez took or drove the 1990 Accord without the owner's consent and with specific intent to permanently or temporarily deprive the owner of title or possession. (People v. Green (1995) 34 Cal.App.4th 165, 180.) Vasquez asserts there is no evidence Fernando did not consent to Vasquez's driving the vehicle, and therefore his conviction must be reversed.
When lack of consent is a necessary element of a crime, the fact the defendant employed fraudulent misrepresentations to induce the victim to give consent will not vitiate the consent to supply the required element of nonconsent. (People v. Harris (1979) 93 Cal.App.3d 103, 114.) In both People v. Donell (1973) 32 Cal.App.3d 613 and the earlier case of People v. Cook (1964) 228 Cal.App.2d 716, the courts evaluated convictions for violating Vehicle Code section 10851 on evidence showing the owner consented to give the vehicle to the defendant but the owner's consent had been induced though false pretenses. In Cook, the defendant obtained the car from the owner (a car dealership) when his alleged accomplice induced the owner to transfer ownership of the vehicle to defendant in exchange for a used car and a "spurious" check for $300. (Cook, at p. 717) In Donell, the defendant obtained the car from the owner (a rental agency) when he presented a false license and credit card to obtain possession of the vehicle under a rental agreement. (Donell, at pp. 614-615.) Both courts, in reversing the convictions for violating Vehicle Code section 10851, reasoned that the "fraudulently induced consent is consent nonetheless and . . . such consent prevents a violation of" Vehicle Code section 10851. (Cook, at pp. 718-721; (Donell, at p. 617.)
The People, arguing that fraud in fact will vitiate consent even when fraud in the inducement does not (see People v. Harris, supra, 93 Cal.App.3d at pp. 113-114), argue Fernando was the victim of fraud in fact because he was deceived as to the nature of the act to which he was consenting. We see no principled distinction between this case and Cook or Donell. We are unpersuaded by the People's claim that Fernando was the victim of fraud in fact because he was deceived as to the nature of the act to which he was consenting, because the act for which consent was required (for Vasquez to take or drive the vehicle) was precisely the act to which Fernando consented. There is no substantial evidence of the lack of consent and therefore the conviction on count 6 must be reversed.
On appeal, Vasquez alternatively argued that count 6 is a necessarily included lesser offense to count 5 and therefore required dismissal of the conviction as to count 6. Because we conclude count 6 must be dismissed because of insufficient evidence, we do not reach Vasquez's alternative attack on count 6.
B. Vasquez Was Properly Sentenced
Vasquez asserts the concurrent sentences imposed for the convictions on count 3 (unlawfully driving the 1992 Accord on July 23, 2005, in violation of Veh. Code, § 10851) and count 4 (selling the stolen 1992 Accord in violation of § 496d) should have been stayed under section 654 because those convictions arose from the same course of conduct underlying in his conviction on count 1 (theft of the 1992 Accord on July 21, 2005, in violation of section 487, subd. (d)(1)). He alternatively argues that, even if count 1 were separable from counts 3 and 4, he drove the 1992 Accord on July 23 as part of selling it and therefore the concurrent sentence for count 3 should be stayed under section 654.
"Section 654 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.]" (People v. Evers (1992) 10 Cal.App.4th 588, 602.) However, when the evidence permits the conclusion the defendant harbored " 'multiple criminal objectives . . . independent of and not merely incidental to each other, the trial court may impose punishment for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.' [Citations.]" (People v. Akins (1997) 56 Cal.App.4th 331, 338-339.) Additionally, section 654 does not preclude multiple punishments where the defendant's course of conduct, even though directed to one objective, is divisible in time. (People v. Gaio (2000) 81 Cal.App.4th 919, 935 [section 654 does not bar punishment where temporal separation of offenses afford defendant opportunity to reflect and to renew his intent before committing next offense].)
On appeal, we view the evidence most favorably to the court's sentencing decision and presume in support of the order the existence of every fact the court could reasonably deduce from the evidence (People v. McGuire (1993) 14 Cal.App.4th 687, 698). The "trial court's implied finding that a defendant harbored a separate intent and objective for each offense will be upheld . . . if it is supported by substantial evidence." (People v. Blake (1998) 68 Cal.App.4th 509, 512.)
There is substantial evidence to support the conclusion Vasquez's intent and objective as to count 1 differed from his intents and objectives for counts 3 and 4. Vasquez committed count 1 (the theft of the 1992 Accord) late in the evening of July 21, 2005, and the evidence of Vasquez's subsequent use of the car to go to a taco shop permits the conclusion his intent and objective was to acquire the 1992 Accord for his personal use. Moreover, because Vasquez committed counts 2 and 3 on July 23, 2005, the temporal separation makes those latter counts sufficiently divisible because he had the opportunity to reflect but nevertheless committed the remaining offenses.
There is also substantial evidence to support the implied conclusion Vasquez's intent and objective for count 3 differed from his intent and objective as to count 4. Vasquez apparently drove to the taco shop in the 1992 Accord, thereby violating Vehicle Code section 10851, subdivision (a) as alleged in count 3, for personal reasons and objectives unrelated to the exchange of cars with Fernando because there is no evidence suggesting Vasquez's encounter with Fernando at the taco shop was anything more than happenstance. The evidence supports the implied conclusion Vasquez subsequently formed the intent to sell the stolen vehicle (in violation of section 496d as alleged in count 4) for a different purpose and objective, e.g., to relieve himself of a car suffering substantial mechanical problems and to obtain a car that was not stolen. The evidence supporting the implied conclusion that Vasquez had distinct intents and objectives accompanying each of the offenses permitted the court to impose concurrent sentences for each offense without offending section 654.
There was no evidence Fernando had arranged to meet Vasquez at the taco shop. Moreover, Vasquez's girlfriend testified he left home driving the 1992 Accord, and then returned to ask if she wanted to trade the car for a different car, and when she agreed he (along with her brother) again left in the 1992 Accord to consummate the trade, which permits the inference that his first trip that day (the trip to the taco shop) was made before he formed the intent to exchange vehicles.
DISPOSITION
The conviction on count 6 is reversed. In all other respects, the judgment is affirmed.
WE CONCUR: McINTYRE, J., IRION, J.