P. v. Reyes

Filed 10/20/06 P. v. Reyes CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from a judgment of the Superior Court of Los Angeles County. George Genesta, Judge. Affirmed and reversed in part.

Jonathan B. Steiner and Nancy Gaynor, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters, Supervising Deputy Attorney General, and Tasha G. Timbadia, Deputy Attorney General, for Plaintiff and Respondent.

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A jury convicted Carmelo Reyes (appellant) of two counts of receiving stolen property in violation of Penal Code section 496, subdivision (a).[1] Appellant admitted having suffered two prior prison terms within the meaning of section 667.5, subdivision (b).

The trial court sentenced appellant to four years in state prison. The sentence consisted of the midterm of two years in count 1 and an additional two years for the prison-prior enhancements. The court stayed a sentence of two years in count 2 pursuant to section 654.

Appellant contends on appeal that the judgment of conviction in count 2 must be reversed because his possession of the car and its radio constituted only one offense of receiving stolen property.

FACTS

We recite the evidence in the light most favorable to the judgment below. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) Hesiquio Delgado owned a white 1993 Honda Accord that his son, Cesar Delgado, used to travel to his university. Cesar telephoned Hesiquio on May 11, 2005, to inform him that the car was gone. Cesar had last seen the car when he left it in his parking space the evening before. Cesar reported the car stolen, and the Pomona police notified him that it had been found at approximately 1:00 a.m. on the following day. Cesar found his car in a very different state than he had left it: the front was smashed, the air bag had deployed, there were grease stains and trash all over the car, and the ignition was damaged. Many items of personal property were missing, and the car’s radio had been removed. Neither Hesiquio nor Cesar knew appellant, and appellant did not have permission to be in the car to take anything from it.

At approximately 9:30 p.m. on May 11, Ronnie Arrellano noticed a white Honda parked across the street from his Pomona home. He saw a female standing on the sidewalk and two men in the car. The men were leaning into the car with their legs hanging out. The female noticed Arrellano. The men got out of the car, and the three walked to a nearby van. One man, later identified as appellant, was carrying something covered with a sweater. The female drove the van to Arrellano and asked him if he could wash the car. She said they would return. Arrellano saw appellant seated in the passenger seat. After the van left, Arrellano looked inside the Honda. When he saw the state it was in, he had his wife call the police. As Arrellano’s wife was speaking with the dispatcher, the van returned. Shortly thereafter the Honda was driven off by someone.

Officer Dennis Cooper of the Pomona police arrived, saw the Honda in motion, and gave chase. He saw a man run from the Honda after it stopped. Police set up a perimeter and were directed to a house by neighbors, where they found four suspects. Police took Arrellano to a field showup, and he was able to identify the two men and the woman he had seen near the Honda. Officer Cooper searched the van and found the Honda’s radio as well as appellant’s driver’s license and his cohort’s identification card.

DISCUSSION

I. Appellant’s Argument

Appellant contends that, because his possession of the car itself included possession of all of its parts, including the radio, and because simultaneous possession of multiple items of property comprise but one offense of receiving stolen property in any event, the conviction in count 2 cannot stand.

II. Relevant Authority

Section 496, subdivision (a), provides in relevant part that “[e]very person who . . . receives any property that has been stolen . . . knowing the property to be so stolen or obtained . . . or who conceals, sells, withholds, or aids in concealing . . . or withholding any property from the owner, knowing the property to be so stolen or obtained, shall be punished by imprisonment in a state prison, or in a county jail for not more than one year.”

III. Conviction in Count 2 Must be Reversed

We agree with appellant that he cannot suffer convictions for receipt of both the Honda automobile and the Honda’s stereo. Items received together, even if stolen from separate victims, support conviction for only one count of receiving stolen property. (People v. Smith (1945) 26 Cal.2d 854, 858-859; see 2 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Crimes Against Property, § 75(2), p. 105.) “The crime of receiving stolen property congeals and is completed upon taking possession of the property with knowledge that it is stolen. [Citation.]” (Williams v. Superior Court (1978) 81 Cal.App.3d 330, 343.) In this case, appellant was shown to be one of the two men inside the stolen Honda. They were conducting a task that required them to lie in the car with their legs hanging out. Afterwards, appellant was seen to carry an object hidden under a sweater away from the Honda. The inference was that the object was the car radio. The evidence thus shows that the car and the radio were received on the same occasion.

Numerous cases interpreting statutes that criminalize possession of certain objects have held that possession of multiple objects of contraband constitutes a single criminal violation. (See, e.g., People v. Rowland (1999) 75 Cal.App.4th 61, 63-67 [having three shanks on single occasion constitutes one violation of § 4502, subd. (a) prohibiting unlawful possession of a weapon in prison]; People v. Municipal Court (Marandola) (1979) 97 Cal.App.3d 444, 447 [possession of several obscene films on a single occasion constituted one violation of § 311.2]; People v. Bowie (1977) 72 Cal.App.3d 143, 156-157 [possession of 11 blank checks constitutes one violation of § 475, which prohibits possession of such items for fraudulent purposes]; People v. Carter (1977) 75 Cal.App.3d 865, 870-872 [possession of several completed checks prepared for the commission of distinct frauds on separate victims constituted one violation of former § 475a, which prohibited possession of a completed check with intent to defraud]; People v. Roberts (1960) 182 Cal.App.2d 431, 436-437, [receipt on different occasions of stolen property constitutes one offense for each separate occasion].)

In People v. Roberts, supra, 182 Cal.App.2d 431, the defendant argued that three successive counts of receiving stolen property constituted only a single offense. In that case, “appellant testified in effect that he received at the same time all three of these items. However, the statement which appellant made to the police indicates that he received the items on different dates and different occasions. There was other testimony which, if believed by the jury, would create the inference that there was a separate receiving for the items described in each separate count.” (Id. at pp. 436-437.) In contrast to People v. Roberts, here there is no evidence, contradicted or otherwise, that appellant acquired the two separate items of stolen property on separate occasions. The evidence establishes only that appellant was seen in possession of both items at the same time in one location. Therefore, the evidence supports only one count of receiving stolen property.

DISPOSITION

The judgment in count 2 is reversed. In all other respects, the judgment is affirmed. The superior court is directed to amend the abstract of judgment and send an amended copy to the Department of Corrections.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

___________________, J.

CHAVEZ

We concur:

_____________________, P. J.

BOREN

_____________________, J.

ASHMANN-GERST

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[1] All further references are to the Penal Code unless stated otherwise.