PEOPLE v. GARCIA

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Court of Appeal, Sixth District, California.

The PEOPLE, Plaintiff and Respondent, v. Gustavo Lopez GARCIA, Defendant and Appellant.

No. H010327.

Decided: December 08, 1993

Janice Wellborn, San Francisco, under appointment by the Sixth District Appellate Program, for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Ronald A. Bass, Sr. Asst. Atty. Gen., Ronald S. Matthias, Supervising Deputy Atty. Gen., Jeremy Friedlander, Deputy Atty. Gen., for plaintiff and respondent.

Defendant was convicted of vehicle theft (Veh.Code, § 10851), receiving stolen property (Pen.Code, § 496, subd. (1)), evading a police officer (Veh.Code, § 2800.3) and reckless driving (Veh.Code, § 23104).   He was sentenced to three years in state prison.   On appeal, he claims that (1) he could not be convicted of both vehicle theft and receiving stolen property, (2) he is entitled to a reduction in his prison term for the vehicle theft count because a sunset clause reduced the punishment for that crime while his appeal was pending, (3) he received ineffective assistance of counsel and (4) Penal Code section 654 barred imposition of punishment for both the evading count and the reckless driving count.   In the published portion of this opinion, we hold that multiple convictions were warranted and that defendant is not entitled to a reduced prison term.   In the unpublished portion of the opinion, we conclude that defendant received effective assistance of counsel and we modify the judgment to stay the term imposed for the reckless driving count pursuant to Penal Code section 654.

FACTS

Elmer Cattron owned a blue and white pick-up truck with a camper shell on it.   On May 1, 1992, the truck was parked outside of Cattron's home in Santa Ana.   The next morning Cattron discovered that his truck was missing.   He had not given anyone permission to use his truck.   He reported the theft of his truck to the Santa Ana police.

In the early morning hours on May 4, Soledad police officer Steven Garza saw a blue and white pick-up with a camper shell weaving as it proceeded down the main thoroughfare in Soledad.   Concerned that the driver might be under the influence of alcohol, Garza followed the truck.   The truck continued to weave so Garza activated his lights.   When the truck did not pull over, Garza turned on his flashing lights and then gave a short siren blast.   The truck sped up from 45 miles per hour to about 65 miles per hour.   The speed limit on this road was 35 miles per hour.   With Garza in pursuit with his emergency lights and siren on, the truck proceeded down the middle of the road, forcing another vehicle to run off the road, and increasing its speed to 85 miles per hour and then to 95 miles per hour.1  Passengers in the truck could see red and blue lights on the police car pursuing them.   When the truck approached a windy section of the road, Garza broke off his pursuit because it had become too dangerous.   He notified the highway patrol and the sheriff's department of where he had lost sight of the truck and which direction it had been heading.   Within a few minutes, Garza was advised that the truck had been stolen.   He continued to look for the truck but could not find it.   About ten minutes later, Garza was informed that a truck had crashed two miles beyond where he had lost sight of the pick-up.   Garza proceeded to the scene of the truck crash.

The truck that had crashed was the same one Garza had been pursuing.   The truck had run off the side of the road down an embankment.   The truck's engine was still running, and there was no key in the ignition.   Instead, there was a paper clip sticking out from underneath the steering column.   The occupants of the truck had been injured;  some of these injuries were severe.   One man lost a finger;  another suffered a spinal cord injury which resulted in paralysis.   Defendant suffered a head injury and was apprehended at the scene of the crash after the passengers from the truck identified him as the driver.   Cattron identified the crashed truck as his stolen pick-up.

Defendant was charged by information with vehicle theft (Veh.Code, § 10851), receiving stolen property (Pen.Code, § 496), evading a police officer (Veh.Code, § 2800.3) and reckless driving (Veh.Code, § 23104).   After a jury trial, he was convicted of all four charges.   A three-year midterm was imposed for the vehicle theft conviction, and the term for receiving stolen property was stayed pursuant to Penal Code section 654.   Concurrent midterms were imposed for the evading and reckless driving counts.

DISCUSSION

A. MULTIPLE CONVICTIONS

 It is a “fundamental principle” that a person cannot be convicted of stealing and receiving the same property.2  (People v. Jaramillo (1976) 16 Cal.3d 752, 757, 129 Cal.Rptr. 306, 548 P.2d 706.)   Defendant asserts that his convictions for violating Vehicle Code section 10851 and Penal Code section 496 are improper under this principle.   He asks us to reverse both convictions.   The Attorney General claims that the record clearly reflects that defendant's conviction was based on “driving” the truck rather than “taking” the truck.   We uphold the convictions.

The California Supreme Court's holding in Jaramillo is the basis for defendant's contention.   Jaramillo was found hiding in a stolen vehicle.   A temporary military base pass with Jaramillo's name on it was taped inside the windshield of the stolen vehicle.  (Id. at p. 755, 129 Cal.Rptr. 306, 548 P.2d 706.)   Jaramillo was charged with grand theft-auto (Pen.Code, § 487), receiving stolen property (Pen.Code, § 496) and “driving or taking” a vehicle (Veh.Code, § 10851).  (Id. at p. 756, 129 Cal.Rptr. 306, 548 P.2d 706.)   The jury was instructed that it could not convict Jaramillo of both grand theft-auto and “driving or taking” a vehicle, but it was not instructed that it could not convict him of both “taking” and “receiving” the same vehicle.  (Ibid.)  Jaramillo was convicted of “driving or taking” a vehicle and receiving stolen property.  (Ibid.)  The California Supreme Court reversed.   It held that convictions for both offenses were improper where the “driving or taking” conviction could have been premised on a jury finding that Jaramillo stole the vehicle.  (Id. at p. 758–759, 129 Cal.Rptr. 306, 548 P.2d 706.)   Since there was no direct evidence that Jaramillo had driven or taken the vehicle and the circumstantial evidence was supportive of either “driving” or “taking” or both, the jury's finding of guilt could have been premised on a determination that Jaramillo stole the vehicle.

 The holding in Jaramillo stands for the proposition that where a jury could have found that a defendant took rather than drove a vehicle in violation of Vehicle Code section 10851, the defendant cannot be convicted of violating both Vehicle Code section 10851 and Penal Code section 496.   However, the opinion in Jaramillo also suggests that convictions for both offenses can only be upheld if the defendant drove the vehicle but did not steal it.  (Id. at p. 758, 129 Cal.Rptr. 306, 548 P.2d 706.)   As the language which contains this suggestion is not necessary to the holding in Jaramillo, we are not bound by it.  (Simmons v. Superior Court (1959) 52 Cal.2d 373, 378, 341 P.2d 13.)   Furthermore, this proposition is not consistent with public policy or modern legal principles.   Public policy does not support a legal principle which subjects a person who drove and received a vehicle to multiple convictions but shields a person who drove, received and stole a vehicle from being subjected to multiple convictions.   Moreover, it is now well recognized that a defendant may ordinarily be subjected to multiple convictions even where there is but a single offense if multiple charges are authorized by statute.  (People v. Pearson (1986) 42 Cal.3d 351, 354, 228 Cal.Rptr. 509, 721 P.2d 595.)   Indisputably, multiple charges were herein authorized by statute.

 Multiple convictions were proper here.   The holding in Jaramillo only precludes convictions for violating both Vehicle Code section 10851 and Penal Code section 496 where the jury could have concluded that the defendant took but did not drive the stolen vehicle.3  On the evidence before the jury in this case, a finding of guilt on the Vehicle Code section 10851 offense must have been premised, at the very least, on a finding that defendant drove the stolen truck.   Defendant was identified by passengers as the driver of the truck.   There was no independent evidence linking defendant to the theft of the truck.   Consequently, if the jury concluded that defendant had in fact taken the truck, it must also have concluded that defendant was the driver of the truck.   It is not possible that the jury could have found that defendant took but did not drive the truck.   Therefore, defendant was properly convicted of violating both Vehicle Code section 10851 and Penal Code section 496.

B. PUNISHMENT FOR VEHICLE CODE SECTION 10851 CONVICTION

 The Vehicle Code section 10851 offense was committed in 1992.   At that time, a Vehicle Code section 10851 violation was punishable by a state prison term of two, three or four years.  (Stats.1989, ch. 930, § 11, p. 3258.)   On January 1, 1993, the statute was repealed by its own terms, and the punishment for a Vehicle Code section 10851 offense reverted back to its pre–1990 level of sixteen months, two years or three years in state prison.   (Stats.1989, ch. 930, § 11.1, p. 3260;  Pen.Code, § 18.)   Defendant claims that In re Estrada (1965) 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948 mandates that his term be reduced to the less severe punishment because his conviction was not yet final when the more severe statute was repealed.   Since this issue is currently before the California Supreme Court (In re Pedro T. (1993) 14 Cal.App.4th 453, 17 Cal.Rptr.2d 564, review granted July 2, 1993;  People v. Vaughan (1993) 15 Cal.App.4th 1124, 19 Cal.Rptr.2d 152, review granted July 2, 1993;  People v. Michaels (1993) 16 Cal.App.4th 459, 20 Cal.Rptr.2d 121, review granted August 26, 1993), it would be essentially pointless for us to engage in an extended analysis of the issue.   However, we shall briefly explain why we believe that defendant is not entitled to the benefit of the reduced punishment available under the current statute.

Between July 1, 1977 and January 1, 1990, a violation of Vehicle Code section 10851 was punishable by a state prison term of sixteen months, two years or three years.  (Stats.1976, ch. 1139, § 336, p. 5061;  Stats.1989, ch. 930, § 11, p. 3258;  Pen.Code, § 18.)   In 1989 the Legislature amended Vehicle Code section 10851 to increase the punishment to two, three or four years in state prison.   However, the Legislature expressly provided that the amended statute would be repealed by its own terms as of January 1, 1993.   (Stats.1989, ch. 930, § 11, p. 3258.)   On January 1, 1993, pursuant to the 1989 legislation, the punishment for a Vehicle Code section 10851 violation reverted to the pre–1990 level of sixteen months, two years or three years in state prison.  (Stats.1989, ch. 930, § 11.1, p. 3260.)   Included in the 1989 legislation was a declaration by the Legislature of the purpose of the enactment.  “[T]he rapid increase in motor vehicle theft has reached crisis proportions ․ [T]he escalating problem of vehicle theft is nurtured by the lack of any serious deterrent to this crime․  [¶] Therefore, the Legislature believes that it is in the best interest for public safety to enhance the penalties for the crimes of vehicle theft and receiving stolen vehicles․  [E]xisting laws should be utilized to the fullest extent possible ․ to deter vehicle theft․”  (Stats.1989, ch. 930, § 1, p. 3246.)

When the Legislature reduces the punishment for a criminal offense, the question as to whether the reduced punishment applies to convictions which are not yet final must be resolved by “trying to ascertain the legislative intent—did the Legislature intend the old or new statute to apply?”  (In re Estrada, supra, 63 Cal.2d at p. 744, 48 Cal.Rptr. 172, 408 P.2d 948.)   In Estrada, the punishment for Estrada's offense was reduced by the Legislature after Estrada committed his offense but before his conviction became final.   (Id. at p. 743, 48 Cal.Rptr. 172, 408 P.2d 948.)   The California Supreme Court explained that when the punishment for an offense is reduced by the Legislature, a rebuttable presumption arises that the Legislature intended that the new punishment should apply to all convictions which are not yet final.  (Id. at pp. 746–747, 48 Cal.Rptr. 172, 408 P.2d 948.)   This presumption may be rebutted by an express savings clause which provides that “the old law should continue to operate as to past acts, so far as punishment is concerned․”  As the Legislature had not “directly or indirectly” indicated its intent when it amended the statute specifying the punishment for Estrada's offense, the presumption was not rebutted, and the court was compelled to presume that the Legislature had decided that the punishment specified by the statute prior to its amendment was too severe.  (Id. at pp. 745–748, 48 Cal.Rptr. 172, 408 P.2d 948.)   In view of this presumed legislative intent, Estrada had to be given the benefit of the new lower punishment.  (Id. at pp. 744, 747, 48 Cal.Rptr. 172, 408 P.2d 948.)

Estrada does not require us to reduce defendant's punishment.   The presumption that the statute was amended because the Legislature determined that the punishment was too harsh applies only “in the absence of clear legislative intent to the contrary.”  (People v. Rossi (1976) 18 Cal.3d 295, 299, 134 Cal.Rptr. 64, 555 P.2d 1313.)   The Legislature's intent in connection with the amendment of Vehicle Code section 10851 is sufficiently clear to rebut the presumption which controlled in Estrada.   The amendment of Vehicle Code section 10851 was accompanied by an explicit statement by the Legislature that “it is in the best interest for public safety to enhance the penalties for the crimes of vehicle theft and receiving stolen vehicles.”   In addition, the Legislature mandated that “existing laws should be utilized to the fullest extent possible ․ to deter vehicle theft․”  (Stats.1989, ch. 930, § 1, p. 3246, emphasis added.)   These statements are irreconcilable with a conclusion that the Legislature found the punishment for vehicle theft to be too harsh.   Precisely the opposite finding is expressly included within the act amending the statute.   Accordingly, the presumption is rebutted, and defendant is not entitled to the benefit of the less severe punishment authorized by the statute as of January 1, 1993.

C.–D.**

CONCLUSION

The concurrent term imposed for the reckless driving (Veh.Code, § 23104) count is hereby stayed pursuant to Penal Code section 654.   The abstract of judgment shall be modified to so reflect.   In all other respects, the judgment is affirmed.

FOOTNOTES

1.   Garza's emergency lights were blue and red.

2.   Language expressing precisely this principle was added to Penal Code section 496 in 1992.  (Stats.1992, ch. 1146, p. 4621;  Pen.Code, § 496, subd. (a).)

3.   We respectfully disagree with the Fourth District Court of Appeal's decision in People v. Black (1990) 222 Cal.App.3d 523, 271 Cal.Rptr. 771.   Black was found driving a stolen vehicle and was convicted of violating both Vehicle Code section 10851 and Penal Code section 496.  (Id. at p. 524, 271 Cal.Rptr. 771.)   On appeal, the Fourth District reversed the Penal Code section 496 conviction purportedly on the basis of Jaramillo.  (Id. at pp. 524–525, 271 Cal.Rptr. 771.)   It stated that Jaramillo was based on “the general principle [that] a defendant cannot be convicted of multiple crimes based on a single act.”   (Id. at p. 525, 271 Cal.Rptr. 771.)   The infirmity of this so-called “general principle” was recognized in Pearson.   The holding in Jaramillo did not require the Fourth District to reverse Black's receiving conviction.   Since Black was found driving the car and it could only be inferred that he had stolen it, in our view, both convictions should have been upheld.   The holding in Jaramillo does not require otherwise.

FOOTNOTE.   See footnote *, ante.

MIHARA, Associate Justice.

COTTLE, P.J., and BAMATTRE–MANOUKIAN, J., concur.