P. v. Hunkin
Filed 8/9/06 P. v. Hunkin CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, Plaintiff and Respondent, v. SUNNY ROMERO HUNKIN, Defendant and Appellant. | G035585 (Super. Ct. No. 04WF3485) O P I N I O N |
Appeal from a judgment of the Superior Court of Orange County, M. Marc Kelly, Judge. Affirmed.
Phillip I. Bronson, 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, Assistant Attorney General, Pamela A. Ratner Sobeck and Ronald A. Jakob, Deputy Attorneys General, for Plaintiff and Respondent.
Sunny Romero Hunkin appeals from a judgment after a jury convicted him of theft or unauthorized use of a vehicle, receiving a stolen vehicle, and resisting and obstructing a peace officer. Hunkin argues: (1) the jury convicted him of theft of a vehicle, which bars his conviction for receiving a stolen vehicle, and the trial court should have instructed the jury it could not convict him of both; and (2) the court erroneously failed to give the jury the unanimity instruction. Although the Attorney General concedes, and we agree, there were instructional errors, we conclude the errors were harmless and affirm the judgment.
FACTS
At approximately 7:00 p.m., on November 29, Linh Tran arrived home in the City of Stanton in her white 2003 Toyota Highlander. Tran got out to open the garage door and left the vehicle's engine running. After opening the garage door, Tran turned around and saw a man with a shaved head wearing a white shirt get into her vehicle and drive away. Tran was unable to identify the man and was not sure of his age, nationality, or race.
Officer Jeff Newberry was on patrol, in a marked car, at approximately 9:00 p.m., on November 30 in Stanton. Newberry saw Tran's vehicle parked on the street and conducted surveillance of the vehicle. A few hours later, on the early morning of December 1, Newberry saw Hunkin get into the vehicle, make a U-turn, and drive past him. After Hunkin made eye contact with Newberry, Hunkin sped away and Newberry made a U-turn and followed him. Eventually, Hunkin jumped out of the moving vehicle, which jumped a curb and crashed into a garage. Newberry, who was still in his vehicle, chased Hunkin, who was on foot, and cut him off. Hunkin jumped over the hood of the car, and Newberry apprehended him.
An amended information charged Hunkin with unlawfully taking and driving a vehicle (Veh. Code, § 10851, subd. (a)) (count 1), receiving a stolen vehicle (Pen. Code, § 496d) (count 2), and resisting and obstructing a peace officer (Pen. Code, § 148, subd. (a)(1)) (count 3). As to counts 1 and 2, the information alleged Hunkin had three prior Vehicle Code section 10851, subdivision (a), convictions (Pen. Code, § 666.5, subd. (a)). The information also alleged Hunkin served two prior prison terms (Pen. Code, § 667.5, subd. (b)).
Before trial, Hunkin admitted the prior convictions and prison term allegations. At trial, the district attorney showed the jury the videotape of Newberry's vehicle pursuit and arrest of Hunkin recorded via Newberry's patrol video system, which is a camera attached to the patrol car's windshield.
The jury convicted Hunkin on all counts. The trial court sentenced Hunkin to the middle term of three years on count 1 and two consecutive one-year terms on the prior prison terms for a total term of five years in state prison. The court stayed sentencing on count 2 pursuant to Penal Code section 654 and suspended sentencing on count 3, a misdemeanor.
DISCUSSION
1. Vehicle Code section 10851, subdivision (a), and Penal Code section 496d,
subdivision (a)
Hunkin contends his conviction for theft of a vehicle bars his conviction for receiving a stolen vehicle. Additionally, he claims the trial court should have instructed the jury it could not convict him of both.[1] We agree there was instructional error, but conclude the error was harmless.
Penal Code section 496d, subdivision (a), states it is unlawful for any â€