P. v. Ortiz

Filed 4/25/07 P. v. Ortiz CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. Clarence Westra, Jr., Judge.

Joshua G. Wilson, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., and Bill Lockyer, Attorneys General, Dane R. Gillette and Mary Jo Graves, Chief Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, and Julie A. Hokans, Deputy Attorney General, for Plaintiff and Respondent.

INTRODUCTION

Appellant Lionel Ricky Ray Ortiz was found guilty after a jury trial of second degree robbery (Pen. Code,  211 & 212.5, subd. (c), count one), receiving a stolen check (Pen. Code,  496, subd. (a), count two), and second degree burglary (Pen. Code,  460, subd. (b), count three).^[1] On June 8, 2006, the trial court sentenced appellant to the upper prison term of five years on count one. The court imposed the upper term of three years on count two but stayed sentence pursuant to section 654 and sentenced appellant to a concurrent midterm of two years on count three. Appellants total prison term is five years. The court imposed a restitution fine and granted appellant 133 days of custody credits.

On appeal, appellant contends, and respondent concedes, that appellants conviction for receiving stolen property on count two was based on the same facts as his robbery conviction on count one and his conviction on count two must be reversed. Appellant further contends the trial court violated his right to a jury trial when it relied on aggravating factors to impose the upper term sentence. (Cunningham v. California (2007)549 U.S. __ [127 S.Ct. 856] (Cunningham).) We disagree and affirm.

FACTS

Offense

On February 13, 2006 at 4:30 p.m., Juan Morales completed a delivery to the Potomac Market in Bakersfield. Morales carried cash and two checks totaling over $1,000 in his left back pocket. One check was from the market in payment for Moraless delivery.

As Morales was bent over the motor of his truck attempting to repair it, four people pushed him from behind. Morales felt a hand in each of his pockets. Morales turned around and grabbed the hand that had taken the money. One of the assailants, later identified by Morales as appellant, swung a screwdriver at Morales that had come from the floorboard of Moraless truck. Morales let go of the hand of the woman who had placed her hand into his pockets. Morales knocked the screwdriver out of appellants hand and the four assailants ran away. Three of the assailants were female. One of the women took cash and checks from Morales. Morales suffered a cut to his finger from the screwdriver.

Kern County Deputy Sheriff Ryan Williams was dispatched to the market. Morales described the assailants and watched a security video from the market with Williams. The store owner received a call from his cousin at the Better Trades Market informing him that someone was trying to cash one of the owners checks. Williams drove to the Better Trades Market, recognized appellant from the store video, and arrested him. Appellant was still wearing the same clothing Williams had seen him wearing from the videotape at Potomac Market.

Appellant initially told Williams he was not at Potomac Market that day. When Williams told appellant there was a videotape showing appellant at the market, appellant said he was there with friends or acquaintances and saw Morales being assaulted. Someone participating in the assault of Morales gave appellant a check. The jury viewed a portion of the videotape from the Potomac Market.

Appellant testified that he was across the street from Morales when he saw acquaintances Peter, Jessica, and another female talking to Morales. These three people assaulted Morales. As Peter and Morales struggled, one of the females came at Morales with a screwdriver. Appellant pushed the female away, pulled Peter off of Morales, and fled with the others to a residence.

The assailants divided the cash and tossed the checks aside. Appellant picked up the checks. On his way home, appellant stopped at Better Trades Market to get a drink. While in the market, he handed one of the checks to the cashier. The cashier took the check but said he would have to call on it. After a long time, Deputy Williams entered the store and arrested appellant.

Sentencing

The probation officers report noted there were no mitigating factors. The report listed five aggravating factors: (1) the appellant was armed with and used a weapon in the commission of the crime; (2) appellants sustained petitions as an adult and in juvenile delinquency proceedings were numerous and significant because two prior adult convictions are theft related; (3) appellant was on two grants of misdemeanor probation when he committed the current offense; (4) appellants prior performance on probation and/or parole was unsatisfactory and he continued to reoffend; (5) appellant had an active warrant in another case when he committed the instant offense.

At the sentencing hearing, the court found there were no mitigating factors. The court found that appellant was on probation when he committed the instant offense. The court noted appellant was convicted of count three for which the court would not impose a consecutive sentence, though it could do so. The court then imposed the upper term of five years on count one, stayed sentence on count two, and made the upper term sentence on count three concurrent to count one.

RECEIVING STOLEN PROPERTY

Appellant was convicted of robbing Morales and receiving stolen checks belonging to Morales. The last paragraph of section 496, subdivision (a) provides that a principal of a theft of property may be convicted of receiving stolen property, but no person may be convicted both pursuant to this section and of the theft of the same property. Appellant contends and respondent concedes that appellants conviction in count two for receiving stolen property must be reversed.

Section 496, subdivision (a) does not authorize a conviction where one has stolen the property in question and is also convicted of theft of the same property. The California Supreme Court, however, held that where a defendant was convicted of burglary leading to the theft of property and possession of the same stolen property, multiple convictions for burglary and possession of stolen property are permitted by section 954. (People v. Allen (1999) 21 Cal.4th 846, 866 (Allen).) The Allen court distinguished burglary from theft, not finding the two crimes equivalent. (Id. at pp. 863-866.) Allen held that the proper remedy where one suffers convictions for both burglary and receiving stolen property from the same burglary is for the trial court to stay sentence on the section 496 conviction pursuant to section 654, which bars multiple punishment. (Allen, supra, at p. 867.)

Here, appellant was not convicted of burglary but of robbery. Robbery is an aggravated form of theft. (People v. Donnell (1976) 65 Cal.App.3d 227, 231, fn. 7.) Section 496, subdivision (a) prohibits dual convictions of both receiving stolen property and stealing the same property. (Allen, supra, 21 Cal.4th at p. 857.) It is error for the trial court to not instruct the jury on its own initiative that it cannot convict the defendant both for theft and for receiving the same stolen property. (People v. Garza (2005) 35 Cal.4th 866, 881 (Garza), citing United States v. Gaddis (1976) 424 U.S. 544, 550.) The trial court did not so instruct the jury here.^[2] We will therefore reverse appellants conviction on count two.

UPPER TERM

The trial court imposed the upper prison term on counts one and three, ordering the sentence on count three to run concurrently.  On appeal, appellant contends that he was denied his constitutional right to trial by jury and due process of law because the court imposed the upper term on both counts based on aggravating factors that were not found by a jury beyond a reasonable doubt. (Blakely v. Washington (2004) 542 U.S. 296 (Blakely); Cunningham, supra, 549 U.S. __ [127 S.Ct. 856].) The trial court imposed the upper terms based on two factors: 1) that appellant was on probation when he reoffended, and 2) that appellant was convicted of count three, for which a consecutive sentence could have been imposed but for which a concurrent sentence was imposed instead.  (Cal. Rules of Court, rule 4.421(a)(7).)  There were other factors in the record that the trial court used to deny probation, including those related to appellants recidivism; however, the trial court expressly did not use these factors to justify imposing the upper terms. 

In Apprendiv. New Jersey (2000) 530 U.S. 466 (Apprendi), a five-justice majority of the United States Supreme Court held, Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.  (Id. at p. 490.)  Blakely held that the statutory maximum for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.  [Citations.]  (Blakely, supra, 542 U.S. at p. 303, italics omitted.)  In Cunningham, the court held that, under Californias determinate sentencing scheme, the upper term can only be imposed if the factors relied upon comport with the requirements of Apprendi and Blakely.  (Cunningham, supra, 549 U.S. __ [127 S.Ct. 856].)

Blakely describes three types of facts that a trial judge can properly use to impose an aggravated sentence:  (1) the fact of a prior conviction (Blakely, supra, 542 U.S. at p. 301); (2) facts reflected in the jury verdict (id. at p. 303, italics omitted); and (3) facts admitted by the defendant (ibid., italics omitted).  The second type is at issue here, i.e., facts reflected in the jury verdict. 

Appellant was convicted of two felony charges for which consecutive sentences could have been imposed. Instead, he received the upper term on each count and his time was ordered to run concurrently. Pursuant to rule 4.421(a)(7), appellant could have been given consecutive sentences on counts one and three, but was given instead concurrent sentences. In doing so, the court relied upon facts reflected in the jury verdict, i.e., the fact that the jury convicted appellant of two offenses. Therefore, the imposition of the upper term is supported by facts found by a jury. Given this factor, we conclude that appellants sentence does not violate Apprendi, Blakely, or Cunningham. 

In any event, any error in considering the remaining factors not falling in one of the three permissible categories identified in Blakely was harmless under either Chapman v. California (1967) 386 U.S. 18, 24 (harmless beyond a reasonable doubt) or People v. Watson (1956) 46 Cal.2d 818, 836 (reasonable probability error did not impact outcome).  The factor indisputably relied upon by the court in choosing the upper terms was that appellant had been convicted of two independent offenses for which concurrent rather than consecutive terms were being imposed.  Under these circumstances, remand for resentencing is unnecessary.

DISPOSITION

Appellants conviction in count two for possession of stolen property is reversed. On remand, the trial court is directed to prepare an amended abstract of judgment reflecting this fact and to forward it to the proper authorities. In all other respects, the judgment is affirmed.

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^*Before Wiseman, Acting P. J., Cornell, J., and Gomes, J.

^[1] All statutory references are to the Penal Code except as otherwise noted.

^[2]Garza noted that a defendant could be convicted both of Vehicle Code section 10851 and receiving stolen property where the stolen property was a vehicle. The dual conviction could stand, however, because Vehicle Code section 10851 proscribes vehicle theft and taking a vehicle to drive it. In that case, there was evidence that the thief possessed the stolen vehicle and used it for an extensive time after stealing it and had, therefore, done more than only steal the vehicle. (Garza, supra, 35 Cal.4th at pp. 881-882.)