P.
v. Pena
Filed 7/1/13 P. v. Pena
CA2/6
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE,
Plaintiff and Respondent,
v.
EMILSON LADIMIRO PENA,
Defendant and Appellant.
2d Crim. No. B242570
(Super. Ct. No. 2011022870)
(Ventura
County)
Emilson
Ladimiro Pena appeals a judgment following conviction of
false vehicle registration documents, conspiracy to commit grand theft,
attempted grand theft (two counts), and giving false information to a police
officer, with a finding that he was on bail in an unrelated prosecution at
the time he committed the present crimes ("out-on-bail
enhancement"). (Pen. Code,
§§ 496d, subd. (a), 182, subd. (a)(1), 664, 487, subd. (a), 148.9, subd.
(a), former 12022.1, subd. (b)
name="_ftnref1" title="">[1]; Veh. Code, § 4463, subd.
(a).) We modify the judgment to strike a
"no-contact" order, and to award Pena an additional 185 days of
presentence conduct credit, reverse and remand for resentencing regarding the
out-on-bail enhancement, but otherwise affirm.
In
2011, Ventura
County law enforcement agencies formed an auto theft task force to
investigate a theft operation involving Toyota Tacoma trucks stolen from Los
Angeles County and sold to unsuspecting buyers in Ventura County. The stolen trucks had fraudulent titles and
displayed license plates stolen from other Tacoma trucks. The trucks were parked on residential streets,
marked for sale with a telephone number, and sold thereafter in cash transactions.
On
June 20, 2011, Mario Delgado parked his Toyota Tacoma truck in front of his
apartment in Los Angeles. Later that
evening, he noticed that his truck was not there and reported the theft to
police.
Two
days later, Abel Gutierrez saw a Toyota Tacoma truck parked on a residential
street in Ventura, marked with a "For Sale" sign. Gutierrez telephoned the contact number and
spoke to Baron Ramirez, who identified himself as "Fernando." Gutierrez informed Ramirez that he was
interested in purchasing the truck.
Detective
George Orozco, a California Highway Patrolman and member of the auto theft task
force, also saw the Toyota Tacoma truck marked for sale. The vehicle identification number on the
truck matched the vehicle identification number on the truck stolen from
Delgado, but the license plate number differed.
Orozco telephoned Ramirez, who again identified himself as
"Fernando," and the two agreed to meet the following day.
In
the afternoon of June 24, 2011, Orozco, working as an undercover officer,
arrived at the location of the truck to meet Ramirez. Other law enforcement members of the task
force were nearby conducting surveillance.
Ramirez left a black Crown Victoria automobile driven by Pena and walked
toward the Tacoma truck. Pena then drove
away.
Gutierrez
and his wife appeared and parked near the truck. Orozco introduced himself to Ramirez and
stated that he intended to purchase the truck.
Ramirez stated that he would sell the truck to either Orozco or
Gutierrez, but would permit Gutierrez to "test drive" the truck
first.
During
the test drive, Ramirez appeared nervous and dropped the sales price by
$1,000. Gutierrez inquired if title to
the truck was "clean," and Ramirez confirmed that it was. Gutierrez then offered to purchase the truck
for $6,500. When Ramirez and Gutierrez
returned from the test drive, they were arrested by members of the auto theft
task force. Police officers later released
Gutierrez. Ramirez stated to police
officers that he was unaware that the truck was stolen and that Pena was paying
him to sell the truck.
Within
an hour, police officers conducted a traffic stop on the Crown Victoria
automobile and arrested Pena. Officers
found fraudulent registration and title documents concealed in the panels of
the automobile and keys to other Toyota Tacoma trucks on the floorboard. During a police interview, Pena denied
knowledge of the stolen Tacoma truck and stated that he drove Ramirez to
Ventura as a favor. Pena also stated
that his name was "Ladimiro Aranda" and that he did not own the Crown
Victoria automobile. During booking at
the police station, officers discovered Pena's true identity after analyzing
his fingerprints.
The
prosecutor presented evidence that Pena had committed previous crimes involving
stolen vehicles. In 2007, Pena attempted
to sell a stolen Honda Odyssey automobile to an unsuspecting buyer. Law enforcement officers observed the
attempted sale and then arrested Pena. A
search revealed that Pena possessed fraudulent vehicle title documents.
In
2010, two Toyota Tacoma trucks were stolen in Orange County and driven to San
Jose. Pena followed the trucks in a
black Crown Victoria automobile. The
trucks were parked on a street in San Jose and marked for sale. Pena drove by and a passenger left his
automobile to approach a prospective buyer.
Police officers observed the attempted transaction and arrested Pena and
his passenger. Pena confessed and
explained the mechanics of the auto theft operation. At the time of trial on the present offenses,
a prosecution against Pena was pending in Orange County.
The
jury convicted Pena of receiving stolen property, possession of false vehicle
registration documents, conspiracy to commit grand theft, two counts of
attempted grand theft, and giving false information to a police officer. (§§ 496d, subd. (a), 182, subd. (a)(1),
664, 487, subd. (a), 148.9, subd. (a); Veh. Code, § 4463, subd. (a).) It acquitted him of the unlawful taking of a
vehicle. (Veh. Code, § 10851, subd.
(a).) In a separate proceeding, Pena
admitted the out-on-bail enhancement regarding the pending prosecution in
Orange County. (§ 12022.1, subd.
(b).)
The
trial court sentenced Pena to a prison term of six years four months, including
a two-year consecutive term for the out-on-bail
enhancement. The court imposed and
stayed sentence for count 8, conspiracy to commit grand theft. It imposed a $1,320 restitution fine, a
$1,320 parole revocation restitution fine (stayed), and a $200 court security
assessment, ordered victim restitution, and awarded Pena 553 days of
presentence custody credit (369 days of actual custody and 184 days of conduct
credit). (§§ 1202.4, subd. (b), 1202.45,
1465.8, subd. (a).)
Pena
appeals and contends that 1) there is insufficient evidence to support his
conviction of two counts of attempted grand theft, and 2) the trial court erred
by not staying sentence for attempted grand theft pursuant to section 654. He also raises several sentencing arguments
that the Attorney General concedes.
Pena
argues that there is insufficient evidence of his specific intent to sell the
stolen truck to two prospective buyers.
He asserts that the evidence supports conviction of only one count of
attempted grand theft.
In
reviewing the sufficiency of evidence to support a conviction, we examine the
entire record and draw all reasonable inferences therefrom in favor of the
judgment to determine whether there is reasonable and credible evidence from
which a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt. (People v. Streeter (2012) 54 Cal.4th 205, 241.) Our review is the same in a prosecution
primarily resting upon circumstantial evidence.
(People v.
1020.) We do not redetermine the weight
of the evidence or the credibility of witnesses. (People
v. Albillar (2010) 51 Cal.4th 47, 60.)
We must accept logical inferences that the jury might have drawn from
the evidence although we would have concluded otherwise. (Streeter,
at p. 241.) "If the
circumstances reasonably justify the trier of fact's findings, reversal of the
judgment is not warranted simply because the circumstances might also
reasonably be reconciled with a contrary finding." (Albillar,
at p. 60.)
All
persons involved in the commission of a crime, whether acting directly or
aiding and abetting, are principals in the crime committed. (§ 31; People v. Delgado (2013) 56 Cal.4th 480, 486.) A person aids and abets the commission of a
crime when he: 1) with knowledge of the
unlawful purpose of the perpetrator, 2) and with intent or purpose of
committing, facilitating, or encouraging commission of the crime, 3) by act or
advice, aids, promotes, encourages, or instigates the commission of the
crime. (Id. at p. 486.) The
dividing line between the actual perpetrator and the aider and abettor often is
blurred; when two or more persons commit a crime together, each may act in part
as the actual perpetrator and in part as the aider and abettor of the
other. (Id. at p. 487.)
An
attempt to commit a crime requires a specific intent to commit the crime and a
direct but ineffectual act done toward its commission. (§ 21a; People v. Watkins, supra,
55 Cal.4th 999, 1018, fn. 9.) A
defendant may be convicted of criminal attempt when he acts with the specific
intent to engage in the conduct or bring about the consequences proscribed by
the attempted crime and performs an act that goes beyond mere preparation. (People
v. Toledo (2001) 26 Cal.4th 221, 230; People
v. Nguyen (2013) 212 Cal.App.4th 1311, 1323.)
Sufficient
evidence supports Pena's conviction of two counts of attempted grand
theft. Pena aided and abetted Ramirez by
driving him to Ventura to sell the stolen Tacoma truck. Pena, who had been involved in a similar
theft operation in Orange County, had fraudulent documents in his automobile
when arrested. Ramirez, for his part,
spoke to Gutierrez and Orozco separately, discussed price and arranged to meet
to test drive the truck. Each buyer
appeared at the meeting place prepared to purchase the truck. The sale to Gutierrez was prevented by police
officers, and the sale to Orozco was prevented by Gutierrez's offer to
purchase. Thus the jury could conclude
that Ramirez had the specific intent to sell the truck to either buyer and took
direct but ineffectual steps to do so as to each. Although Pena and Ramirez could complete only
one act of grand theft concerning the truck, they could commit multiple acts of
attempted grand theft regarding the same property.
Pena
contends that the trial court erred by not staying sentence on the two counts
of attempted grand theft (counts 9 and 10) because his criminal intent and
objective regarding those offenses was the same as his intent and objective
regarding receiving stolen property (count 6).
(§ 654.) He argues that the three
offenses rest upon the same physical act of selling the stolen Tacoma truck. (People
v. Jones (2012) 54 Cal.4th 350, 360 [section 654 prohibits multiple
punishment of unlawful possession of firearm by a felon, carrying of concealed
and unregistered firearm, and carrying unregistered and loaded firearm in
public].)
Section
654, subdivision (a) provides: "An
act or omission that is punishable in different ways by different provisions of
law shall be punished under the provision that provides for the longest
potential term of imprisonment, but in no case shall the act or omission be
punished under more than one provision."
Section 654 bars multiple punishment for separate offenses arising out
of a single occurrence where all of the offenses were incident to one
objective. (People v. McKinzie (2012)
54 Cal.4th 1302, 1368.) We review the
trial court's implied finding of a separate intent and objective for sufficient
evidentiary support. (
In this review, we do not assume a broad or amorphous view of the
defendant's intent and objective. (
758, 769.)
Sufficient
evidence supports the trial court's implied finding that Pena had distinct
criminal intents and objectives regarding the receiving stolen property offense
and the attempted grand theft offenses.
The receiving stolen property offense concerned possession and
concealment of the Tacoma truck from its owner; the attempted grand theft
offenses involved fraudulent sale of the truck to unsuspecting buyers. Concealing and possessing the truck
necessarily preceded the attempted grand thefts. The truck was taken from Los Angeles County,
its license plates changed, and was placed for sale in Ventura County. Pena's objective in count 6 involved
concealing and possessing stolen property, Delgado's truck. Pena's objective in counts 9 and 10 involved
obtaining cash from potential buyers in exchange for fraudulent title. Under the circumstances, section 654 does not
prohibit multiple punishment.
Pena
raises several sentencing issues that the Attorney General properly
concedes. First, he contends that he is
entitled to an additional 185 days of presentence conduct credit. (Former § 2933, subd. (e).) Second, he asserts that the trial court
lacked jurisdiction to enter a no-contact order with certain persons, absent
statutory authority or evidence that he threatened a witness. (People
v. Robertson (2012) 208 Cal.App.4th 965, 995-996 [no-contact order without
statutory authorization or evidentiary support is an unauthorized sentence that
may be raised for the first time on appeal].)
Third, he points out that the court was required to stay execution of
the out-on-bail enhancement because he has not yet been convicted of the Orange
County offense. (§ 12022.1, subd. (d)
["Whenever there is a conviction for the secondary offense and the
enhancement is proved, and the person is sentenced on the secondary offense
prior to the conviction of the primary offense, the imposition of the
enhancement shall be stayed pending imposition of the sentence for the primary
offense"].)
The
abstract of judgment also incorrectly reflects Pena's conviction of receiving
stolen property as a violation of section 469d, subdivision (a), rather than
section 496d, subdivision (a). The trial
court shall amend the abstract of judgment to reflect the correct Penal Code
section.
We
modify the judgment to strike the no-contact order, and to award Pena an
additional 185 days of presentence conduct credit, and reverse and remand for
resentencing regarding the out-on-bail enhancement, but otherwise affirm. The trial court shall amend the abstract of
judgment accordingly and forward it to the Department of Corrections and
Rehabilitation.
NOT
TO BE PUBLISHED.
GILBERT,
P.J.
We concur:
YEGAN,
J.
PERREN,
J.
>
Ryan
J. Wright, Judge
Superior
Court County of Ventura
______________________________
Mark
R. Feeser, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Paul M.
Roadarmel, Jr., Supervising Deputy Attorney General, Nima Razfar, Deputy
Attorney General, for Plaintiff and Respondent.
name="_ftn1" title="">[1] All further statutory
references are to the Penal Code unless stated otherwise. References
to section 12022.1 are to the version in effect prior to repeal effective
January 1, 2012.
