P. v. >Campbell>















Filed 7/10/12 P. v. Campbell CA4/2













NOT TO BE PUBLISHED IN OFFICIAL
REPORTS





California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.







IN THE COURT OF APPEAL OF THE
STATE OF CALIFORNIA>



FOURTH APPELLATE DISTRICT



DIVISION TWO






>

THE PEOPLE, Plaintiff and Respondent, v. DANNY RAY CAMPBELL, Defendant and Appellant.

E053300 (Super.Ct.No. RIF10000903) OPINION

APPEAL
from the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Riverside
County. Sharon J.
Waters, Judge. Affirmed.

Susan
L. Ferguson, under appointment by the Court of Appeal, for Defendant and
Appellant.

Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, James D. Dutton and
Emily R. Hanks, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant
and appellant Danny Ray Campbell was charged by information with href="http://www.fearnotlaw.com/">taking or driving a vehicle without consent
(Veh. Code, § 10851, subd. (a), count 1) and href="http://www.mcmillanlaw.com/">receiving a stolen vehicle (Pen. Code,
§ 496d, subd. (a), count 2).href="#_ftn1" name="_ftnref1" title="">^[1] The information also alleged that he had
served three prior prison terms (Pen. Code, § 667.5, subd. (b)), and
that he had one prior strike conviction (Pen. Code, §§ 667, subds. (c)
& (e)(1), 1170.12, subd. (c)(1)).
A jury found defendant guilty of count 2, but not guilty of count
1. He admitted the prior conviction
allegations. The court sentenced
defendant to a total term of five years eight months in state prison.

On
appeal, defendant’s sole contention is that there was href="http://www.fearnotlaw.com/">insufficient evidence to support his
conviction for receiving stolen property.
We affirm.

FACTUAL BACKGROUND

On
the morning of February 19, 2010, Tuan Thompson parked his Honda motorcycle on
the sidewalk in front of his girlfriend’s home.
He and his girlfriend were planning on riding the motorcycle to Los
Angeles, so he turned the motorcycle on to warm it up for the trip. He went inside the house to get his
jacket. After he grabbed his jacket, he
stopped to talk to his girlfriend and her mother. His girlfriend’s mother was standing next to
a window and saw someone sitting on Thompson’s motorcycle. She told Thompson, who looked out the window
and then ran outside. The person on his
motorcycle, later identified as defendant, was wearing a helmet and had the
motorcycle in gear, ready to go.
Defendant put the motorcycle in gear and began to drive across the
lawn. Thompson chased after him, caught
up to him, pulled him off the motorcycle, and put him in a headlock. He punched defendant in the face, and
defendant’s helmet “popped off.”
Defendant ran off, and Thompson chased him. Thompson caught up to him at the end of the
block, but then fell on the ground.
Defendant kept running. A man
driving by pulled up to Thompson, and Thompson told him to open his car
door. The man complied, and Thompson
jumped into the car and told the man to chase after defendant. When they caught up to defendant, Thompson
got out of the car, grabbed defendant, and threw him on the ground. Defendant resisted, escaped, and followed a
woman inside her house. Thompson chased
defendant, who tried to shut the door.
Defendant punched Thompson in the face several times to keep him from
coming inside the house. The driver who
had previously helped Thompson approached them and helped Thompson apprehend
defendant. They detained him until the
police arrived.

Thompson
did not know defendant, and he never gave him permission to use his motorcycle.

ANALYSIS

There Was Sufficient
Evidence to Support Defendant’s Conviction for Receiving Stolen Property

Defendant’s
sole argument on appeal is that there was insufficient evidence to support his
conviction for receiving stolen property.
He contends that the evidence was insufficient to sustain the conviction
for two reasons: (1) he was acquitted of
stealing the motorcycle and, therefore, the motorcycle was not stolen; and (2)
if it was stolen, it was stolen by defendant, “which precludes a conviction for
receiving the stolen item from himself.”
We conclude that the evidence was sufficient.

Our
standard of review is well settled. “‘In
assessing the sufficiency of the evidence, we review the entire record in the
light most favorable to the judgment to determine whether it discloses evidence
that is reasonable, credible, and of solid value such that a reasonable trier
of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]
Reversal on this ground is unwarranted unless it appears “that upon no
hypothesis whatever is there sufficient substantial evidence to support [the
conviction].” [Citation.]’” (People
v. Villegas (2001) 92 Cal.App.4th 1217, 1223.) “The standard of review is the same when the
prosecution relies on circumstantial evidence.
[Citation.] Circumstantial
evidence may be sufficient to prove the defendant’s guilt beyond a reasonable
doubt. [Citation.]” (People
v. Vu (2006) 143 Cal.App.4th 1009, 1024.)

“To
sustain a conviction for receiving stolen property, the prosecution must prove
(1) the property was stolen; (2) the defendant knew the property was
stolen; and, (3) the defendant had possession of the stolen property. [Citations.]”
(People v. Land (1994) 30
Cal.App.4th 220, 223.) Section 496d, of
which defendant was convicted, requires the stolen property in question to be a
“motor vehicle, trailer, special construction equipment, or vessel.” (§ 496d, subd. (a).)

Here,
there was sufficient evidence to establish each of the elements of receiving
stolen property. The evidence showed
that the motorcycle had been stolen.
“The elements of theft by larceny are:
(1) the defendant took possession of personal property owned by someone
else; (2) the defendant did so without the owner’s consent; (3) when the
defendant took the property, he or she intended to deprive the owner of it
permanently; and (4) the defendant moved the property, even a small distance,
and kept it for any period of time, however brief. [Citations.]”
(People v. Catley (2007) 148
Cal.App.4th 500, 505.) Defendant took
possession of Thompson’s motorcycle when he sat on it and drove it away. Thompson never gave defendant permission to
borrow the motorcycle. Driving away on a
stranger’s motorcycle and fleeing from the owner provided circumstantial
evidence that defendant intended to permanently deprive Thompson of the
motorcycle. The motorcycle was moved
when defendant drove it across the lawn in front of Thompson’s girlfriend’s
house. As to the remaining elements of
receiving stolen property, defendant knew the motorcycle was stolen because he
stole it. Finally, defendant had
possession of the stolen motorcycle when he sat on it and drove it across the
lawn.

Defendant
argues that he could not be convicted of receiving stolen property because he
was the one who stole the motorcycle. He
cites section 496, subdivision (a), which states that a person may not be
convicted of stealing and receiving the same property. He then cites the rule against dual
convictions, which he explains is based on the premise that “a theft conviction
operates as a bar to a receiving conviction because it is ‘logically impossible
for a thief who has stolen an item of property to buy or receive that property
from himself.” We agree with defendant,
in that a person may not be convicted
of both theft of property and receiving the same stolen property. However, there is no prohibition against the
thief being convicted only of
receiving the stolen property.

“The
Legislature amended section 496 in 1992 by adding the following two
sentences: ‘A principal in the actual
theft of the property may be convicted pursuant to this section. However, no person may be convicted both pursuant
to this section and of the theft of the same property.’” (People
v. Allen (1999) 21 Cal.4th 846, 857 (Allen).) The court in Allen explained the amendment as follows: “[T]he second sentence of the 1992 amendment
codifies the ‘narrow’ application of the common law rule invoked in [>People v.] Jaramillo [(1967)]
16 Cal.3d 752, 757 [that a defendant may not be convicted of stealing and
receiving the same property]. The second
sentence declares that ‘no person may be convicted both pursuant to this section
and of the theft of the same property.’
(§ 496.) The
sentence thus prohibits, as the ‘narrow’ common law rule also prohibited, dual convictions
of any person of both an offense ‘pursuant to this section [§ 496]’—viz.,
buying, receiving, concealing, withholding, or selling stolen property—and the
offense of stealing the same property.
[¶] The first sentence of the
1992 amendment addresses the ‘broad’ application of the common law rule; but
rather than codifying that application, the sentence effectively abrogates
it. As noted, the first sentence
declares that ‘A principal in the actual theft of the property may be convicted
pursuant to this section.’ (§ 496.) name=clsccl6> The sentence thus
authorizes a conviction for receiving stolen property even though the defendant
also stole the property, provided he has not actually been convicted of the
theft.” (Allen, supra, 21 Cal.4th
at p. 857, italics in original.) Thus,
pursuant to the 1992 amendment of section 496, “‘the fact that the defendant
stole the property no longer bars a conviction for receiving, concealing or
withholding the same property.’
[Citation.]” (>Ibid.)


Consistent
with the current law, the jury in this case was instructed that it could not
convict defendant of both theft under Vehicle Code section 10851 and receiving
the same stolen property. At defendant’s
request, the jury was instructed with CALCRIM No. 3516, as follows: “The defendant is charged in Count 1 with
unlawful taking or driving a vehicle, and in Count 2 with receiving stolen property. These
are alternative charges. If you find
defendant guilty of one of these charges, you must find him not guilty of the
other. You cannot find the defendant
guilty of both. Nor can you find him
guilty of both the lesser offense to Count 1 and the lesser offense to Count
2.” (Italics added.) The jury followed the instruction and only
convicted defendant of count 2.

Defendant
claims that he “was acquitted of stealing the vehicle and therefore the vehicle
was not stolen.” However, contrary to
this claim, his acquittal on count 1 does not mean the jury concluded the
motorcycle was not stolen. Rather, the
jury was properly instructed with CALCRIM No. 3516 and, accordingly, it
convicted defendant of only one of the alternative counts. Although defendant insists that he “cannot be
guilty of receiving because he was the alleged thief who was acquitted of
stealing,” the fact that he stole the motorcycle did not bar his conviction
under section 496d. (>Allen, supra, 21 Cal.4th at p. 857.)


Defendant
further asserts that it is well established that “[c]ommission of the theft >excludes the possibility of a receiving
conviction.” He cites >People v. Ceja (2010) 49 Cal.4th 1, 6,
in support of this claim, but his reliance on Ceja is misplaced. In that case,
the trial court failed to instruct the jury that a defendant could not be
convicted of stealing and receiving the same property, and the jury convicted
the defendant of both petty theft and receiving the property. (Id.
at p. 3.) The Court of Appeal reversed
the petty theft conviction. (>Ibid.)
The question before the Supreme Court then was, “when a defendant has
been improperly convicted of stealing and receiving the same property, what is
the appropriate remedy?” (>Id. at p. 5.) The Supreme Court reversed, holding that the
proper remedy for the improper dual conviction was to reverse the receiving
conviction. (Id. at pp. 3-4.)

The
jury in the instant case, unlike in Ceja,
was properly instructed that it could not find defendant guilty of both stealing
and receiving the same property. The
jury properly followed the instruction.

DISPOSITION

The
judgment is affirmed.

NOT
TO BE PUBLISHED IN OFFICIAL REPORTS



HOLLENHORST

Acting P. J.





We concur:





KING

J.





CODRINGTON

J.