P. v. Cervantez

Filed 4/26/07 P. v. Cervantez CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Teresa S. Bennett, Judge. Affirmed.

Lauren E. Eskenazi, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Steve Oetting, Supervising Deputy Attorney General, and Robin Derman, Deputy Attorney General, for Plaintiff and Respondent.

A jury convicted defendant and appellant Ruben Tony Cervantez of: (1) count 1 ‑‑ unlawful taking or driving of a vehicle under Vehicle Code section 10851, subdivision (a); (2) count 2 ‑‑ receiving stolen property under Penal Code section 496d, subdivision (a); and (3) count 3 ‑‑ evading a police officer with willful disregard under Vehicle Code section 2800.2, subdivision (a). On appeal, defendant contends, and we agree, that the trial court erred in failing to instruct the jury that defendant could not be convicted of both taking and receiving the same vehicle. However, for the reasons set forth below, we find that the error was harmless.

I

FACTUAL AND PROCEDURAL HISTORY

A. Factual Background

1. Prosecution Evidence

On August 18, 2005, Ming Guang Hong (the victim) discovered that his van was missing from his companys parking lot in South El Monte. The victim reported the theft to the police. The victim was not certain whether the van was locked or whether there were keys inside. The victim had not given anyone permission to drive the van. Also, the victim did not know defendant.

Six days later, at 7:00 p.m. on August 24, 2005, Fontana Police Officer Katie Beebe was patrolling the area of Slover and Live Oak in a marked patrol car. While driving eastbound on Slover, Officer Beebe saw defendant driving westbound in a van with a missing front license plate. The officer made a U-turn, got behind the van, turned on her lights, and pulled defendant over on the side of Slover. Officer Beebe exited her patrol car. When she was within three feet of the vans door, defendant drove away very quickly. Officer Beebe ran back to her patrol car, turned on her lights and siren, and chased defendant. Defendant drove about 70 miles per hour down Slover; the speed limit was 45 miles per hour.

Defendant attempted to turn southbound onto Redwood without braking. Defendant, however, failed to complete the turn. Instead, he jumped the curb and crashed into a tree. The damage to the van was extensive; it had to be towed from the scene of the accident. The distance between where Officer Beebe initially stopped defendant and where defendant crashed into the tree was less than one mile.

By the time Officer Beebe turned onto Redwood, defendant had exited the van and was running across the street. Defendant attempted to climb an eight-foot fence with barbed wire on top. When defendant placed his hands on the barbed wire, he pulled them off quickly, jumped to the ground, and ran northbound on Slover toward some homes on that street. Defendant jumped several fences between the backyards of the homes. Officer Beebe lost sight of defendant during the foot chase.

Several other officers and a helicopter joined in the effort to locate defendant. While Officer Beebe knocked on the door to a house, an officer standing by the garage heard a phone ringing and movement. The officers opened the garage door and located two people inside. Officer Beebe recognized defendant hiding behind a closet. Defendant had already changed his clothes. When Officer Beebe handcuffed defendant, she noticed several small cuts on his hands with fresh blood.

2. Defense Evidence

The owner and officer manager of Direct Terminal, Inc., a company that refurbishes chassis, testified that defendant was her employee in August of 2005. On August 24, 2005, defendant worked from 6:35 a.m. until 2:38 p.m.

Public defender investigator and retired police officer, Joseph Hargis, testified as an expert regarding the closing speeds of vehicles. Based on his expertise and the facts to which Officer Beebe testified, when the officer initially observed defendant driving the van with no license plate coming at her from the opposite direction, she would have had about one-fifth of a second to view defendant.

B. Procedural Background

On December 19, 2005, the San Bernardino County District Attorney filed an information charging defendant with the unlawful taking or driving of a vehicle (count 1), receiving stolen property (count 2), and evading an officer (count 3).

On March 27, 2006, the jury returned a verdict of guilty on all three counts. Defendant admitted that he had previously been convicted of receiving a stolen vehicle, which increased his sentencing exposure on the unlawfully driving a vehicle count.

On April 25, 2006, the trial court: (1) sentenced defendant to the middle term of three years on count 1, unlawfully driving a vehicle; (2) stayed the term on receiving stolen property on Penal Code section 654; and (3) imposed the middle term of two years on count 3, evading an officer, to be served concurrently with the three-year term.

Defendant appeals.

II

ANALYSIS

A. Any Instructional Error Was Harmless

Defendants sole issue on appeal is that he was prejudiced by the trial courts failure to instruct the jury, sua sponte, that defendant could not be convicted of both taking and receiving the victims vehicle. We agree that the trial courts failure to instruct the jury was error; however, we find this error to be harmless.

In People v. Garza (2005) 35 Cal.4th 866, the California Supreme Court discussed the issue of whether a person could be convicted of both offenses. The court succinctly stated the applicable principles, the issue, and its conclusion: Subdivision (a) of Vehicle Code section 10851 (hereafter section 10851(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, and the taking may be accomplished by driving the vehicle away. For this reason, a defendant convicted under 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 [Penal Code] section 496[, subdivision] (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 posttheft driving). Therefore, a conviction under section 10851(a) for posttheft driving is not a theft conviction and does not preclude a conviction under [Penal Code] section 496[, subdivision] (a) for receiving the same vehicle as stolen property. [] The issue here is whether a conviction under section 10851(a) for unlawful taking or driving of a vehicle bars a conviction under [Penal Code] section 496[, subdivision] (a) for receiving the same vehicle as stolen property when the evidence at trial adequately supported the section 10851(a) conviction on either a taking or a posttheft driving theory, the prosecutor argued both the taking and the posttheft driving theories to the jury, the trial courts 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 jurys guilty verdict did not disclose which theory or theories the jurors accepted. [] Consistent with prior Court of Appeal decisions, we conclude that when, as in this case, the evidence is such that 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 posttheft driving, a reviewing court may construe the Vehicle Code section 10851(a) conviction as a conviction for posttheft driving and on this basis may uphold the conviction under Penal Code section 496[, subdivision] (a) for receiving the same vehicle as stolen property. Because the Court of Appeal reached the opposite conclusion, we will reverse its judgment. (Id. at pp. 871-872.)

In Garza, the defendant was found in a vehicle which had been stolen from his former employer. The arrest was made six days after the vehicle was missing, and the prosecution argued that there was sufficient evidence that defendant both took the vehicle and drove it. The verdict did not specify whether the jury found illegal taking, or driving, or both. The Supreme Court held that the trial court erred in failing to instruct the jury, sua sponte, that it could not convict defendant both of theft and receiving the same stolen property. (People v. Garza, supra, 35 Cal.4th at p. 881.)

The court then applied a harmless error test: 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 [Penal Code] section 496[, subdivision] (a). [Citation.] (People v. Garza, supra, 35 Cal.4th at pp. 881-882.) Applying this harmless error test, the court concluded that 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 posttheft driving. Accordingly, the error was harmless and the trial courts judgment was affirmed.

Garza is dispositive here. In this case, as in Garza, the trial court erred in failing to instruct the jury that it could not convict defendant of theft and receiving stolen property. Under the facts here, it is equally improbable that the jury convicted defendant of taking the property, but not of posttheft driving; here, defendant was caught unlawfully driving the stolen van ‑‑ six days after the van was stolen. Therefore, the instructional error was harmless, and the conviction should be construed as a nontheft conviction coupled with a receiving stolen property conviction.

[T]he crucial issue usually will be whether the [Vehicle Code] section 10851[, subdivision] (a) conviction is for a theft or a nontheft offense. If the conviction is for the taking of the vehicle, with the intent to permanently deprive the owner of possession, then it is a theft conviction that bars a conviction of the same person under [Penal Code] section 496[, subdivision] (a) for receiving the same vehicle as stolen property. Dual convictions are permissible, however, if the [Vehicle Code] section 10851[, subdivision] (a) conviction is for posttheft driving of the vehicle. (People v. Garza, supra, 35 Cal.4th at p. 881.) Thus, even though the prosecutor argued both theories to the jury, the dual convictions are permissible because it is reasonably probable that the jury found posttheft driving, rather than theft without posttheft driving.

Therefore, the trial courts error ‑‑ in failing to instruct the jury, sua sponte, that defendant could not be convicted of both taking and receiving the victims vehicle ‑‑ was harmless.

III

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ Richli

J.

We concur:

/s/ McKinster

Acting P.J.

/s/ Miller

J.

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