P. v. Martinez
Filed 5/1/07 P. v. Martinez CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, Plaintiff and Respondent, v. ARTURO MARTINEZ, Defendant and Appellant. | D048482 (Super. Ct. No. SCD194962) |
APPEAL from a judgment of the Superior Court of San Diego County, Charles R. Gill, Judge. Affirmed.
A jury convicted Arturo Martinez of unlawfully taking or driving a vehicle (Veh. Code, 10851, subd. (a)), receiving a stolen vehicle (Pen. Code, 496d),[1]evading an officer with reckless driving (Veh. Code, 2800.2, subd. (a)), and resisting an officer ( 148, subd. (a)(1)). In a bifurcated hearing, Martinez admitted a prior conviction of unlawfully taking or driving a vehicle ( 666.5, subd. (a)) and serving a prior prison term ( 667, subd. (b)). The court sentenced Martinez to four years eight months in prison, consisting of the middle term of three years for unlawfully taking or driving a vehicle, the middle term for receiving a stolen vehicle, stayed pursuant to section 654, one-third the middle term for evading an officer, and one year for the prison prior. Martinez contends the trial court erred in entering a conviction for receiving a stolen vehicle because that is a lesser included offense of vehicle theft.
FACTS
During the evening of November 12, 2005, Rex Lilly's 1995 Subaru was parked outside his home in Otay Mesa. Around 3:30 a.m. on November 13, San Diego Police Officer Patrick Laco was on patrol in the Grantville area, approximately 12 miles to the north of Otay Mesa, when he saw Martinez turn left on a red light. Laco activated his vehicle's overhead lights and siren and attempted to stop Martinez. Martinez turned onto Interstate 8 eastbound and reached speeds of 85 miles per hour. Laco pursued. Martinez exited the Interstate, spun around and entered the Interstate headed westbound in the eastbound lanes. Highway Patrol Officer Scott Parent stopped in front of the fleeing car. The driver, who Parent identified as Martinez, alighted from the car, jumped over the median and ran across the westbound lanes of Interstate 8. On duty San Diego State University Officer Scott Hildebrand heard a radio broadcast of the incident. He saw an officer chasing a male across the westbound lanes of Interstate 8. Hildebrand pursued and caught the person he identified as David Hernandez. Officer Laco determined that the vehicle in the incident had been stolen.
David Hernandez testified that he was with Martinez on the night of the incident. He testified that he stole the Subaru and he was driving it when chased by law enforcement. He testified that he picked up Martinez after he stole the car. He had already entered a guilty plea to taking or driving a stolen vehicle. After the incident, Hernandez told an officer that a third person, not he or Martinez, had been driving the car.
DISCUSSION
Generally, a person cannot be convicted for both taking and receiving the same property. (People v. Jaramillo (1976) 16 Cal.3d 752, 757.) In People v. Garza (2005) 35 Cal.4th 866 (Garza), the Supreme Court addressed the question "whether a conviction under [Vehicle Code section 10851[, subdivision] (a) for unlawfully taking or driving of a vehicle bars a conviction [of receiving] the same vehicle as stolen property when the evidence at trial adequately supported the [Vehicle Code section 10851[, subdivision] (a) conviction on either a taking or a posttheft driving theory . . . ." (Garza, supra, at p. 871.) The court concluded 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[, subdivision] (a) conviction as a conviction for posttheft driving and on this basis may uphold the conviction under . . . section 496[, subdivision] (a) for receiving the same vehicle as stolen property." (Garza, supra, at p. 872.) We conclude that the reasoning in Garza applies here.
As the court explained in Garza, supra, 35 Cal.4th "[Vehicle Code] section 10851[, subdivision] (a) separately prohibits the acts of driving a vehicle and taking a vehicle. [Citations.] Thus, a defendant who steals a vehicle and then continues to drive it after the theft is complete commits separate and distinct violations of [Vehicle Code] section 10851[, subdivision] (a)." (Garza, supra, at p. 880.) The distinction between unlawfully "taking" a vehicle and unlawfully "driving" a vehicle under Vehicle Code section 10851, subdivision (a) is relevant for purposes of the dual conviction doctrine:
"A person who violates [Vehicle Code] section 10851[, subdivision] (a) by taking a car with the intent to permanently deprive the owner of possession, and who is convicted of that offense on that basis, cannot also be convicted of receiving the same vehicle as stolen property. [Citations.] If, on the other hand, a [Vehicle Code] section 10851[, subdivision] (a) conviction is based on posttheft driving, a separate conviction under section 496[, subdivision] (a) for receiving the same vehicle as stolen property is not precluded. [Citations.]" (Garza, supra, 35 Cal.4th at p. 876.)
We note that the trial court here did not instruct the jury that it could not convict Martinez of taking and receiving the same stolen property. In Garza, the Supreme Court said:
"First, on appeal a judgment is presumed correct, and a party attacking the judgment, or any part of it, must affirmatively demonstrate prejudicial error. [Citation.] The second principle is stated in the California Constitution, article VI, section 13: '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.' " (Garza, supra, 35 Cal.4th at p. 881.)
We thus "begin with the presumption that defendant's dual convictions . . . are valid; we will set aside either or both of the convictions only if defendant has affirmatively shown prejudicial error amounting to a miscarriage of justice." (Garza, supra, 35 Cal.4th at p. 881.)
Martinez has established that the trial court failed to instruct the jury that it could not convict him of both the theft of, and receiving, the same stolen property. (See Garza, supra, 35 Cal.4th at p. 881.) However, to determine whether prejudicial error occurred 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 496d.
Officers Laco and Parent testified that they saw Martinez driving the car in the area of Interstate 8, about 12 miles away from where the car was stolen. Regardless of who stole the car, it is clear that theft of the car was completed before police and the Highway Patrol chased Martinez on Interstate 8. A witness Martinez called, testified that he, not Martinez stole the car. There was no evidence showing Martinez was the actual thief of the car, but only that he drove the car after the theft was completed. Under these circumstances, it is not reasonably probable that a properly instructed jury would find Martinez guilty of stealing the car, in violation of Vehicle Code section 10851, subdivision (a), but not guilty of posttheft driving the stolen car. Construing defendant's conviction under Vehicle Code section 10851, subdivision (a) as a nontheft conviction for posttheft driving, we affirm Martinez convictions of violating both Vehicle Code, section 10851, subdivision (a) and section 496d.
DISPOSITION
The judgment is affirmed.
NARES, J.
WE CONCUR:
McCONNELL, P. J.
O'ROURKE, J.
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[1] All further statutory references are to the Penal Code unless otherwise specified.
