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Court of Appeal, Fifth District, California.

THE PEOPLE, Plaintiff and Appellant, v. SHERRI HERRICK, Defendant and Respondent.


Decided: March 29, 2011

Phillip J. Cline, District Attorney, and John F. Sliney, Deputy District Attorney, for Plaintiff and Appellant. Melanie K. Dorian, under appointment by the Court of Appeal, for Defendant and Respondent.



Respondent, Sherri Herrick, was charged by criminal complaint with 17 felony counts, including five counts of identity theft (Pen.Code, § 530.5, subd. (a); 1  counts 2, 4, 6, 8, 10) and one count of receiving a stolen motor vehicle (§ 496d, subd. (a); 2  count 1).   Herrick pled no contest to the five counts of identity theft, in exchange for the following:  she would receive a prison sentence of two years and the remaining counts would be dismissed with a Harvey waiver.3  Thereafter, the court imposed a two-year prison term and ordered Herrick to pay victim restitution in the amount of $10,801.28, based on the five counts of identity theft.

The People have appealed.   The People's sole argument on appeal is that the court erred in denying additional victim restitution based on the facts underlying the dismissed count of receiving a stolen vehicle.   We will vacate that denial, and remand for further proceedings.


Report of the Probation Officer

The report of the probation officer indicates the following:  Carolyn Hainsworth told police she and Herrick had agreed that she (Hainsworth) would purchase a motor vehicle, and Herrick would take possession of the vehicle, “make payments,” and “have the vehicle paid off in six months at which time [Hainsworth] would transfer the title into [Herrick's] name.”   However, Hainsworth later learned that “vehicle payments were not being made.”   She then “checked her credit score” and determined that “several credit cards” and “several accounts” had been “fraudulently opened in her name,” although Hainsworth “did not give [Herrick] permission to open them.”

Less than a month later, police in Arizona arrested Herrick, after making a traffic stop.   She was driving the car Hainsworth had purchased and turned over to her.   Herrick “admitted she moved to Arizona to avoid dealing with her inability to make the payments on the vehicle.”

The amount owed on the various fraudulently opened credit cards and other accounts totaled $10,801.28.   West America Bank (the bank) informed Hainsworth that the car had been “sold at a net proceed” of less than the total amount owed to the bank on the vehicle loan, and that Hainsworth owed the bank a “deficiency balance” of $7,957.97.   The probation officer recommended the court order that Herrick pay restitution to Hainsworth in the amount of $18,759.25, representing the total of the $7,957.97 “deficiency balance” owed to the bank and the $10,801.28 owed on the various accounts.

Procedural Background

At the sentencing hearing, Herrick's counsel did not oppose the proposed restitution on the various accounts, but argued that “there was no fraud involved” in the offense of receiving a stolen vehicle charged in count 1, and therefore restitution should not be awarded based on the balance owed to the bank for the car.   The People argued to the contrary.   The court imposed sentence, awarded restitution in the amount of $10,801.28 based on the identity theft counts, as recommended by the probation officer, and set a hearing on the remainder of the recommended victim restitution.

Subsequently, at the hearing, Hainsworth testified to the following:  In February 2009, Herrick asked her to “purchase a vehicle.”   The two agreed that Herrick would “make the payments” and “have it paid off within six months,” at which point Hainsworth would “transfer [the vehicle] over into [Herrick's] name.”   Herrick said this arrangement would benefit Hainsworth by causing Hainsworth's “credit score [to] go up.”   Herrick claimed she could not purchase a car herself because “she was purchasing homes, and while they were in escrow, she could not purchase anything.”   Herrick and Hainsworth “went and looked at homes” that Herrick claimed “she'd purchased․”  Herrick also claimed she was suing somebody for “hundreds of thousands of dollars.”

Based on Herrick's representations as to her “financial health,” Hainsworth purchased a vehicle, for which she paid approximately $29,000.00.   Herrick immediately took possession of the vehicle.

In July or August of 2009, “the finance company” contacted Hainsworth about the vehicle, and “was after” Hainsworth because payments had not been made.   Subsequently, the vehicle “went to auction” and the finance company billed Hainsworth for approximately $8,000.00.

Hainsworth tried to contact Herrick, but Herrick's phone had been disconnected.   Hainsworth later learned that Herrick had moved to Arizona and that she (Herrick) had tried to sell the vehicle to a friend.

City of Visalia Police Detective Kevin Kroeze testified to the following:  A police detective in Arizona stated that he spoke with Herrick and that Herrick stated she “knew she couldn't afford to make the payments on the vehicle” at the time she had Hainsworth purchase it for her.   Herrick told Detective Kroeze that she had not worked during the last five years, her husband had been employed “off and on, nothing steady,” and she “wouldn't purchase any homes or anything like that ․ because her credit score was so bad.”

The prosecutor conceded that in order for the court to order restitution based on the dismissed count, “there has to be a basis for the court to find” that Herrick committed the offense of receiving a stolen vehicle as charged in that count, but argued that Herrick's conduct did constitute commission of that offense.   Defense counsel argued that the court could not order restitution on the dismissed count, the Harvey waiver notwithstanding, because the offense charged in that count was receiving a stolen vehicle;  “the facts show” Herrick's conduct constituted a different offense, viz., “theft”;  and “it can't be both.”

The court, apparently agreeing with defense counsel, stated:  “She stole it, so how can you receive something that you steal?  ․ The law does not allow a person to be punished for stealing something and receiving it because they're different crimes.”   The court concluded:  “I don't know why ․ Ms. Herrick [ ] wasn't prosecuted for fraud in obtaining the motor vehicle because ․ under these facts, that's clearly what she did, and ․ from a logical point of view, Ms. Hainsworth is absolutely entitled to restitution.   She was defrauded by Ms. Herrick, that's how Ms. Herrick got the vehicle, but I've gone through the felony complaint, and the charge relating to the vehicle is receiving.  [¶] The ․ stipulated facts, if you will, for purposes of this hearing do not constitute receiving stolen property, and under the law relating to restitution, ․ I am precluded from ordering restitution even though it's clearly the right thing to do, but the law does not allow me to do that, so I can't, regretfully.   So that's the order of the court.”


In Harvey, supra, 25 Cal.3d at page 758, the court held that “[i]mplicit in ․ a plea bargain ․ is the understanding ․ that defendant will suffer no adverse sentencing consequences by reason of the facts underlying, and solely pertaining to, the dismissed count,” and therefore “it would be improper and unfair to permit the sentencing court to consider any of the facts underlying the dismissed count ․ for purposes of aggravating or enhancing defendant's sentence.”   To avoid the Harvey restriction, prosecutors often “condition[ ] their plea bargains upon the defendant agreeing that the sentencing court may consider the facts underlying the not-proved or dismissed counts when sentencing on the remainder.”  (People v. Myers (1984) 157 Cal.App.3d 1162, 1167.)   Defendants may accept this relatively minor potential consequence in order to avoid other convictions or sentencing enhancement terms.  (Ibid.) Such an agreement is known as a “ ‘Harvey waiver.’ ”   (Ibid.) “A Harvey waiver permits the sentencing court to consider the facts underlying dismissed counts and enhancements when determining the appropriate disposition for the offense or offenses of which the defendant stands convicted.  [Citation.]”  (People v. Munoz (2007) 155 Cal.App.4th 160, 167.)

As indicated above, Herrick entered a Harvey waiver as to all of the dismissed counts, and there is no dispute that as a result, the court could consider dismissed counts for restitution purposes.   The dismissed count in question here is the count 1 charge of receiving a stolen vehicle.   The People argue that the court erred in denying restitution based on the facts underlying the count 1 offense because the court based that denial on the erroneous conclusion that Herrick's conduct, upon which the count 1 charge was based, did not constitute receiving a stolen vehicle in violation of section 496d(a).   We agree.

Under section 496d(a), it is a felony to “buy[ ] or receive[ ] any motor vehicle[ ] ․ that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be stolen or obtained, or who conceals, sells, withholds[ ] ․ any motor vehicle[ ] ․ from the owner, knowing the property to be so stolen or obtained ․“ (§ 496d(a), italics added.)

Under section 484, subdivision (a), theft can be committed in a number of ways, including by “knowingly and designedly, by any false or fraudulent representation or pretense, defraud[ing] any other person of ․ personal property ․“ (§ 484, subd. (a).)  A conviction of this species of theft, commonly called theft by false pretenses, “requires proof that (1) the defendant made a false pretense or representation to the owner of property;  (2) with the intent to defraud the owner of that property;  and (3) the owner transferred the property to the defendant in reliance on the representation.”   (People v. Wooten (1996) 44 Cal.App.4th 1834, 1842.)

Here, each element of the offense of theft by false pretenses was established by the testimony of the victim and Detective Kroeze.   Specifically, their testimony established the following:  Herrick represented she had substantial real estate holdings and the financial wherewithal to buy a car, but she could not do so because the numerous homes she was purchasing were in escrow.   These representations were false.   Herrick had not been employed in the previous five years and she had no money to buy houses.   Moreover, Herrick made these false representations with the intent to defraud Hainsworth, as evidenced by her taking possession of the car, her subsequent flight to Arizona, and her attempt to sell the car to a third person.   Finally, Hainsworth turned the car over to Herrick in reliance on Herrick's false representations.   Thus, the record establishes that Herrick “received” a vehicle that she had “obtained” in a “manner constituting theft,” within the meaning of section 496d(a).

The court, however, determined that notwithstanding that Herrick obtained the car by “defraud[ing]” the victim, i.e., by committing theft by false pretenses, Herrick's conduct did not constitute a violation of section 496d(a) because “[t]he law does not allow a person to be punished for stealing something and receiving it․”  Herrick contends the court was correct.   She argues that “if [she] was guilty of theft, ․ she could not have also received the same property.”   In support of this claim, she cites People v. Ceja (2010) 49 Cal.4th 1 (Ceja ).  Ceja, however, does not support this argument and, indeed, helps demonstrate that it is without merit.

Ceja contains a discussion of the common law “rule against dual convictions,” i.e., the rule that a person cannot not be convicted of both theft of property and receiving that same property.   The court explained that “In the case law, the rule had sometimes been applied narrowly, to prohibit only convictions of the two offenses, and sometimes more broadly, to preclude a conviction of receiving stolen property when there was evidence implicating the defendant in the theft.”  (Ceja, supra, 49 Cal.4th at p. 5.) As indicated above, Herrick relies on the broader application of the dual convictions rule, arguing that the theft of property precludes conviction of receiving that same property.   However, as Ceja also explained, “The broader application led to a number of problems,” and has been “largely abandoned․”  (Ibid., fn. omitted.)

The rule now in effect is set forth in People v. Price (1991) 1 Cal.4th 324 (Price ).   There our Supreme Court acknowledged that “With certain limited exceptions, a defendant may not be convicted of stealing and receiving the same property.”  (Id. at p. 464.)   However, the court continued:  “This does not mean[ ] ․ that when the prosecution has charged only receiving, it must establish by affirmative proof that someone other than the defendant stole the property.  [Citations.]  A conviction for receiving stolen property may be based on evidence ‘that the property in question was stolen, that the defendant was in possession of it, and that the defendant knew the property to be stolen’ [citation], even though the evidence also strongly suggests that it was the defendant who stole the property.  [Citation.]”  (Ibid.) Price thus establishes that although a person may not be convicted of both stealing and receiving the same property, the commission of theft of property does not preclude a conviction of receiving the same property.   Therefore, the trial court erred in (1) concluding that because Herrick acquired the vehicle by theft she could not have committed the offense of receiving the same vehicle, and (2) in determining based on that conclusion that it could not order restitution based on the facts underlying the dismissed count of receiving a stolen vehicle, pursuant to Herrick's Harvey waiver.


The court's denial of restitution based on the facts underlying the count 1 charge of receiving a stolen vehicle is vacated.   The matter is remanded to the trial court.   The trial court is directed to order restitution based on the facts underlying that count.   In all other respects, the judgment is affirmed.



FN1. All statutory references are to the Penal Code..  FN1. All statutory references are to the Penal Code.

FN2. We refer to section 496d, subdivision (a), as section 496d(a)..  FN2. We refer to section 496d, subdivision (a), as section 496d(a).

FN3. See People v. Harvey (1979) 25 Cal.3d 754 (Harvey )..  FN3. See People v. Harvey (1979) 25 Cal.3d 754 (Harvey ).