P. v. Gomez

Filed 3/27/06 P. v. Gomez CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Russell F. Schooling, Judge. (Retired judge of the Mun. Ct. for the Southeast Jud. Dist. of L.A., assigned by the Chief Justice pursuant to art. VI, § 6, of the Cal. Const.) Affirmed in part as modified and reversed in part.

Lizabeth Weis, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Lilia E. Garcia, Supervising Deputy Attorney General, and Marilyn L. George, Deputy Attorney General, for Plaintiff and Respondent.

A jury found defendant guilty of residential burglary (Pen. Code, § 459)^[1] while another person, other than an accomplice, was present (§ 667.5, subd. (c)(21)) (count 1); unlawfully taking or driving a vehicle, to wit, a 2003 BMW 745, (Veh. Code, § 10851, subd. (a)) (count 2); and receiving a stolen vehicle, to wit, a 2003 BMW 745, (§ 496d, subd. (a)) (count 3). Defendant was sentenced to a total term of five years eight months in state prison as follows: the low term of two years on count 1, plus a consecutive three years for the section 667.5, subdivision (c)(21) enhancement attached to that count and a consecutive eight months on count 2; the sentence on count 3 was stayed pursuant to section 654.

On appeal, defendant contends (1) he was improperly convicted of unlawfully taking or driving a vehicle and receiving the same stolen vehicle; (2) the trial court abused its discretion in denying him probation; (3) the three-year term imposed pursuant to the section 667.5, subdivision (c)(21) enhancement should be stricken, as there was no prior strike conviction alleged or proven; and (4) his sentence for unlawfully taking or driving a vehicle should have been stayed pursuant to section 654, as the offense was part of a continuous course of conduct of the burglary. We agree with defendant that he was improperly convicted of both receiving and taking the same stolen property; that the section 667.5, subdivision (c)(21) enhancement should be stricken; and that his sentence for unlawfully taking or driving a vehicle should be stayed pursuant to section 654. We reject defendant's remaining contention.

I

FACTUAL BACKGROUND

On October 3, 2003, Clint Roberts and his wife were living in a home in Corona. The house had an attached two-car garage in which Roberts kept his new 2003 745 BMW. Two other vehicles owned by Roberts, a GMC truck and a Toyota Sequoia, were kept outside. In addition to the doorway into the interior of the house and an overhead electric garage door, the garage had another door that opened to a parking area along the side of the garage where a boat and trailer were kept.

On that day, about 2:30 a.m., Roberts's wife woke him up after she heard the sound of their electric garage door opening. Right after that, Roberts heard a loud noise from the garage. Roberts jumped up and ran to the garage. When Roberts opened the connecting door into the garage, he saw his BMW being backed up with its headlights on. The car was about half way out of the garage. Roberts saw two people in the BMW.

Roberts ran after the BMW, for which he had just paid $80,000, as it backed up and hit a neighbor's trash can across the street. Roberts was about 10 feet away and would have run after his car but noticed the passenger raised the lower edge of his sweatshirt and pointed something at Roberts. Roberts feared that the passenger may have had a gun. After unsuccessfully attempting to put the car into drive, the driver and passenger got out of the car and ran off. Roberts chased them for about 15 steps and stopped, realizing it was not worth losing his life over. Roberts yelled at his wife to call the police.

As Roberts got into his wife's Toyota to search for the suspects, police officers arrived. Five minutes later Roberts returned and told the officers what had occurred and described the driver and the passenger. Roberts described the driver as a Hispanic male, about 18 to 20 years old, 5 feet 6 inches tall and wearing all black, including a black sweatshirt and a black cap with a Silver Star logo. He described the passenger as wearing all black as well, including a black sweatshirt or T-shirt; but he was lighter skinned and skinnier than the driver and had shorter hair. Roberts saw the passenger's face but could not give a good description of it.

A short time later, police officers took Roberts to a house about two blocks away where four men had been detained. Among the four males, Roberts positively identified defendant, who was wearing a black Silver Star hat, as having been the driver; however, Roberts was unable to make a positive identification of the passenger.

Roberts later discovered that the front end of his BMW and an antique piano that was in the garage were both damaged. Roberts realized that the sound he heard right after he was awakened by his wife was that of his BMW hitting the antique piano. Roberts also noticed that the items that were in his car's center console, such as his wallet, checkbook, cellular telephone, and several checks made out to his business, were missing. They were never recovered.

II

DISCUSSION

A. Convictions for Taking or Driving a Vehicle and Receiving a Vehicle

Defendant, citing People v. Jaramillo (1976) 16 Cal.3d 752 (Jaramillo), contends that he was improperly convicted both of unlawful taking under Vehicle Code section 10851 and receiving stolen property under Penal Code section 496 as to the same stolen vehicle. The People argue defendant waived this issue and, in the alternative, claim â€