THE PEOPLE v. ARMANDO GONZALEZ (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Appellant was charged in an amended information with:  count 1—unlawful driving or taking of a vehicle (Veh.Code, § 10851, subd. (a));  count 2—grand theft of an automobile (Pen.Code, § 487, subd.(d)(1));  count 3—criminal threats (Pen.Code, § 422);  counts 4 and 5—separate counts of attempting to dissuade a witness (Pen.Code, § 136.1, subdivision (a)(2));  and count 6—second degree robbery (Pen.Code, § 211).   It was further alleged, with respect to counts 1 and 2, that appellant was armed with a firearm (Pen.Code, § 12022, subd. (a)(1));  with respect to count 3, that during the commission of the offense, appellant personally used a firearm (Pen.Code, § 12022.5, subd. (a));  and, with respect to count 6, that appellant personally used a firearm (Pen.Code, § 12022.53, subd. (b)).

Count 4 was dismissed following the prosecution's case-in-chief.   Following a jury trial, appellant was found guilty on counts 1, 2, and 6, and not guilty on counts 3 and 5. All special firearm allegations were found not true.

Probation was denied and appellant was sentenced to a term of five years for count 6. The court ordered the sentences on counts 1 and 2 stayed pursuant to Penal Code section 654.

Appellant filed a timely notice of appeal.   He argues that the conviction for grand theft of an automobile must be vacated because it was a lesser included offense of second degree robbery.¹  Respondent concedes that this point is correct, and we agree.

FACTUAL SUMMARY

On the evening of February 23, 2009, witness Maria Verduzco (Maria) was at her home in Long Beach.   Appellant knocked on her door and asked for the keys to her ex-husband's pickup, which was parked in the driveway, and also asked her to move her car, which was blocking the truck.   Maria had known appellant as an acquaintance for approximately 10 years, and they had a positive relationship.   However, when she saw him at the door on February 23, he seemed upset and “hot-headed.”   He told her he wanted to drive the truck to Las Vegas.   Maria called her ex-husband, Juventino Verduzco (Juventino), to ask him if appellant could take the truck.   Juventino said no and told Maria not to worry because appellant did not have the keys.

Five to 10 minutes later, appellant knocked on the door again and began yelling, demanding that Maria give him the keys and telling her to move her car or else he would hit it with the truck.   Maria was scared and did not open the door.   She called Juventino again.   He told her not to go outside and assured her that appellant would not be able to take the truck.

After appellant left the door area Maria went outside to look around, but then went back inside because she saw appellant coming toward her, looking very angry.   Appellant knocked on the door again.   Maria said she saw him holding a “really small” handgun, about three inches long.   Other eyewitnesses testified he was not holding a handgun, but something that looked like a crucifix.   Appellant knocked on the door for about five minutes and then left.

Then, as Maria was looking out the window, she saw appellant get in the truck and start it.   He repeatedly rammed her car with the truck to move it out of the way.   After about 10 minutes of ramming, Maria's car ended up in the street.   Once he cleared the driveway, appellant drove away in the truck.

Meanwhile, Juventino called the police and drove to Maria's house.   By the time he and the police arrived, appellant was gone.   He noticed that the front of Maria's car had been damaged.

Appellant testified that he regularly performed handyman and auto work for Juventino and so had a key to the truck.   On the night of the incident, he had been told that his mother was gravely ill.   He was upset and depressed.   He decided to take the truck to go to Tijuana to see his mother, and then to return the truck when he got back.   But, he got lost on the way from Long Beach to Tijuana and ended up driving through Barstow, and continued going north on the I–15 until the truck stopped working a few miles from the Nevada border.

Appellant was arrested by California Highway Patrol at approximately 2:00 a.m. on February 24, 2009.   He was found walking a few miles away from the truck, going in the direction of Las Vegas (not Tijuana).   Appellant, the truck, and the surrounding area were searched, but no handgun was recovered.   A key to the truck was found.

Appellant admitted he took the truck without permission and used it to push Maria's car out of the driveway.   He denied threatening Maria and denied having a gun during the incident.

DISCUSSION

Appellant contends that his conviction for the theft of the truck (count 2) must be vacated because it was a lesser included offense of the robbery charged in count 6. Appellant is correct.

“In general, a person may be convicted of, although not punished for, more than one crime arising out of the same act or course of conduct.”  (People v. Reed (2006) 38 Cal.4th 1224, 1226.)  Penal Code section 954 permits multiple convictions while Penal Code 654 prohibits multiple punishment for the same “act or omission”;  the trial court must therefore stay execution of sentence on a conviction for which multiple punishment is prohibited.   (Reed, supra, at p. 1226.)

An exception to the general rule of multiple convictions “prohibits multiple convictions based on necessarily included offenses.”  (People v. Montoya (2004) 33 Cal.4th 1031, 1034.)  “[I]f a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former.”  (People v. Lopez (1998) 19 Cal.4th 282, 288.)

“Theft is a lesser included offense of robbery, which includes the additional element of force or fear.”  (People v. Melton (1988) 44 Cal.3d 713, 746.)   Thus, grand theft of an automobile is necessarily a lesser included offense of robbery when it is based upon the same conduct.  (People v. Ortega (1998) 19 Cal.4th 686, 694.)

Here, the charged theft and robbery were based on the same conduct.   Since theft was a lesser included offense of the robbery, the conviction on count 2 must be vacated.

DISPOSITION

Appellant's conviction on count 2 for grand theft is reversed.   The trial court is directed to dismiss the charge and to strike the court security fee of $30 and conviction assessment fine of $30 imposed against appellant for count 2, and to amend the abstract of judgment accordingly.   A certified copy of the amended abstract is to be forwarded to the Department of Corrections and Rehabilitation.   In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

We concur:

FOOTNOTES

FN1. Appellant also initially contended that the trial court should have specified the sentence terms on counts 1 and 2 before ordering execution of the sentences stayed, instead of just staying execution.   Although this contention was correct, the error has been fixed.   After the record was certified for appeal, appellant brought a motion in the trial court requesting that the court specify the terms of the sentences for counts 1 and 2. The trial court thereafter issued an order directing the clerk to amend the abstract of judgment to reflect three-year sentences for the convictions on counts 1 and 2, and the sentences were stayed pursuant to Penal Code section 654.   Since this issue has been resolved, no further analysis is necessary..  FN1. Appellant also initially contended that the trial court should have specified the sentence terms on counts 1 and 2 before ordering execution of the sentences stayed, instead of just staying execution.   Although this contention was correct, the error has been fixed.   After the record was certified for appeal, appellant brought a motion in the trial court requesting that the court specify the terms of the sentences for counts 1 and 2. The trial court thereafter issued an order directing the clerk to amend the abstract of judgment to reflect three-year sentences for the convictions on counts 1 and 2, and the sentences were stayed pursuant to Penal Code section 654.   Since this issue has been resolved, no further analysis is necessary.

DOI TODD, J. CHAVEZ, J.