P. v. Saldivar

Filed 1/31/07  P. v. Saldivar CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

THE COURT^*

            APPEAL from a judgment of the Superior Court of Stanislaus County.  Nancy E. Ashley, Judge.

            Stephen Temko, under appointment by the Court of Appeal, for Defendant and Appellant.

            Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Stan Cross, Assistant Attorney General, Susan Rankin Bunting, Deputy Attorney General, for Plaintiff and Respondent.

-ooOoo-

Jose Benito Saldivar, Jr., was driving a stolen vehicle when he was apprehended by police officers.  He was convicted of six different crimes arising out of the arrest, including violations for driving a vehicle without the owner's consent or stealing a vehicle (Veh. Code, §  10851, subd. (a)) and receiving stolen property (Pen. Code, §  496d, subd. (a)).^[1]  Saldivar received a third strike sentence, with gang and prior prison enhancements, of 100 years to life, plus 14 years.

He argues that he cannot be convicted of both auto theft and receiving stolen property.  We agree the dual convictions cannot stand and will order the conviction for receiving stolen property reversed.  However, because the sentence on the receiving stolen property count was stayed pursuant to section 654, Saldivar's sentence will not change.

FACTUAL AND PROCEDURAL SUMMARY

The facts in this matter are not in dispute.  After a short pursuit, Saldivar was arrested driving a vehicle that had been stolen six weeks earlier.  He possessed a handgun, ammunition, and drug paraphernalia when he was arrested. 

Saldivar was charged with, and found guilty of, (1) felony auto theft (Veh. Code, §  10851); (2) felony receiving stolen property (§  496d, subd. (a)); (3) felony evading a police officer (Veh. Code, §  2800.2); felony possession of a firearm by a convicted felon (§  12021, subd. (a)); felony possession of ammunition by a convicted felon (§  12316, subd. (b)(1)); felony participation in a criminal street gang (§  186.22, subd. (a)); misdemeanor possession of a syringe (Bus. & Prof. Code, §  4140); and misdemeanor possession of a pipe used for controlled substances (Health & Saf. Code, §  11364).  In addition, each of the first five felonies was found to have been committed for the benefit of a criminal street gang (§  186.22, subd. (b)(1)), and the trial court found Saldivar had three prior convictions within the meaning of section 667, subdivision (d), and two prior convictions within the meaning of section 667.5, subdivision (b).  

Saldivar's Romero^[2] motion was denied, and he was sentenced to consecutive third strike terms on counts I, III, IV, V, plus three years on each count for the section 186.22, subdivision (b) enhancements, plus two years for the two section 667.5, subdivision (b) enhancements.  The sentences on counts II and VI were stayed pursuant to section 654.  Saldivar's total sentence consisted of a determinate term of 14 years and an indeterminate term of 100 years to life.  

DISCUSSION

Saldivar's only argument is that he was improperly convicted of theft and receiving stolen property involving the same property, i.e., the stolen vehicle.  The People concede that People v. Jaramillo (1976) 16 Cal.3d 752 and section 496 provide that no person may be convicted of auto theft and receiving stolen property involving the same auto.  The People argue, however, that this prohibition does not apply to Saldivar's case because the statute he violated in count I, Vehicle Code section 10851, not only criminalized the theft of a vehicle, but also criminalizes the driving of a stolen vehicle as a separate and distinct crime. 

The People are correct that Vehicle Code section 10851, subdivision (a) criminalizes both the driving of a vehicle without the permission of the owner (joyriding), as well as the theft of the vehicle.  The cases cited by the People, People v. Garza (2005) 35 Cal.4th 866, People v. Allen (1999) 21 Cal.4th 846, People v. Cratty (1999) 77 Cal.App.4th 98, and People v. Strong (1994) 30 Cal.App.4th 366, all support this conclusion.  These cases also establish that a defendant may be convicted of both receiving stolen property (the vehicle) and Vehicle Code section 10851, subdivision (a), if the defendant was guilty of driving the vehicle without the permission of the owner, but a defendant cannot be convicted of both receiving stolen property (the vehicle) and violation of Vehicle Code section 10851, subdivision (a) based on the theft of that vehicle.  The distinction established in these cases (and numerous others) is that driving a stolen vehicle is not a theft offense and thus not subject to the bar of section 496, while theft of the vehicle is, obviously, a theft offense and subject to the statutory bar. 

Garza, Cratty, and Strong concluded that where there was convincing evidence the defendant drove the stolen vehicle, and the Vehicle Code section 10851 count was not prosecuted exclusively on the theory that defendant stole the vehicle, the judgment of receiving stolen property and violating Vehicle Code section 10851 can be affirmed as, at most, harmless error.  The â€