P. v. Vorabduth











Filed 2/26/13 P. v. Vorabduth CA4/1

>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115



COURT
OF APPEAL, FOURTH APPELLATE DISTRICT



DIVISION
ONE



STATE
OF CALIFORNIA






>

THE PEOPLE, Plaintiff and Respondent, v. JAN VORABDUTH, Defendant and Appellant.

D061714 (Super. Ct. No. SCE309645)

APPEAL from
a judgment of the Superior Court of San
Diego County, Patricia K. Cookson, Judge.
Affirmed in part and reversed in part with directions.



A jury
found Jan Vorabduth guilty of two counts of residential burglary (Pen. Code,
§§ 459, 460;href="#_ftn1" name="_ftnref1"
title="">[1]
counts 1 and 4) with another person, other than an accomplice, present in the
residence during the burglary in count 1 (§ 667.5, subd. (c)(21)), and
three counts of receiving stolen property (§ 496, subd. (a); counts 6, 7
and 8). The court sentenced Vorabduth to
six years in prison: the four-year
middle term on count 1, one year four months (one-third the middle term) on
count 4, eight months (one-third the middle term) on count 6 and concurrent
two-year middle terms on counts 7 and 8.
Vorabduth appeals, contending her convictions on two of the counts of
receiving stolen property must be reversed because there was no evidence she
received stolen property on more than one occasion, and the $200 court href="http://www.mcmillanlaw.us/">operations assessment therefore must be
reduced to $120 (§ 1465.8). We
agree with both contentions.

THE BURGLARIES IN
COUNTS 1 AND 4

The
burglary in count 1 took place on the afternoon of February 17, 2011, in Bonita. The burglary in count 4 took place on the
morning of March 11, in Spring Valley. The homeowners were present in each
case. They identified Vorabduth as the burglar
and described her vehicle. During the href="http://www.fearnotlaw.com/">burglary in count 1, Vorabduth was
accompanied by a man.

THE BURGLARIES IN
COUNTS 2, 3 AND 5

The jury
rendered not guilty verdicts on three counts of residential burglary. In count 2, Vorabduth was charged with a March 7, 2011, burglary of the Garber
family home in San Diego. In count 3, she was charged with a March 10
burglary of the Marallo family home in Jamul.
In count 5, she was charged with a March 14 burglary of the White family
home in La Mesa. There were no witnesses to these
burglaries. Later, the homeowners
discovered property missing from their homes.
The Garbers' missing property included a television set, silver, jewelry
boxes and jewelry. The Marallos' missing
property included a safe containing their passports, Social Security cards,
other personal papers and commemorative coins; shoes; purses; a suitcase; a
computer backpack; and jewelry. The
Whites' missing property included computers, cameras and jewelry.

RECEIVING STOLEN
PROPERTY

Based on
information from the Spring Valley
burglary victim, a deputy sheriff identified Vorabduth as a burglary
suspect. On the night of March 19, 2011, a police officer
found Vorabduth sitting in the driver's seat of a vehicle matching the
descriptions given by the victims in counts 1 and 4. The vehicle contained a large amount of
clothing; shoes; bags; cosmetics; coin collections in boxes, in trash bags and
duffel bags; jewelry; cameras; and other items.
Sheriff's deputies arrested Vorabduth, impounded her vehicle and
delivered some of the contents to Detective William Kerr.

Through an
engraving, Detective Kerr identified the Garbers as the owners of one of the
pieces of jewelry. Detective Kerr linked
the burglary of the Garbers' home to the burglaries of the Marallos' and
Whites' homes through a computer search for similar crimes. Detective Kerr called the three families, and
they met with him, separately, at the sheriff's station. The Garbers identified more than 50 pieces of
jewelry, including the engraved piece, as theirs. The Marallos recovered some of the property
stolen from their house, including coin collections, shoes, a camera bag,
camera equipment, a GPS device and jewelry.
The Whites recovered some of their jewelry and an iPod.

THE DEFENSE CASE

Vorabduth
testified she went to the Bonita house on February 17, 2011, and the Spring Valley
house on March 11, 2011,
because her friend Michael had asked her to pick him up at those
addresses. He was going to accompany her
to obtain drugs. Vorabduth denied
committing any of the five burglaries.

Vorabduth
next saw Michael on the night of Friday
March 18, 2011. They were at
a party smoking methamphetamine and drinking alcohol. He gave her two bags and told her to get
whatever she could for them. She put the
bags in her car. She had a feeling the
contents of the bags had been stolen. As
she was driving away, she looked in the bags and found electronics, coin
collections, jewelry and cameras.

DISCUSSION

Vorabduth
contends the amended information alleged she committed the three counts of
receiving stolen property on the same date, and the record contains
uncontradicted evidence she received all of the stolen property on one
occasion, in a single transaction. She
concludes her convictions on two of the receiving stolen property counts must
be reversed as unsupported by substantial
evidence.

" '[T]he
legal . . . character of the act [of receiving stolen
property] is [not] affected in any way by the fact that the stolen property may
have belonged to several persons rather than to a single
person.' " (>People
v. Morelos (2008) 168 Cal.App.4th 758, 763 (Morelos), quoting People v.
Smith (1945) 26 Cal.2d 854, 859.)
" '[B]ut one offense of receiving stolen property is shown,
although the goods were stolen from different sources,' where the evidence
shows that the defendant received two items of stolen property 'on a single
occasion.' " (>Morelos, at p. 763, quoting >People v. Lyons (1958) 50 Cal.2d 245,
275.) Conversely, "where the
receiving counts involve different property stolen from different victims at
different times and where nothing in the record shows [the defendants] received
the property on a single occasion, 'the record reasonably supports the
inference that appellant[s] received the various stolen goods at different
times and in different transactions. ' " (Morelos,
at p. 763, quoting People v.
Bullwinkle (1980) 105 Cal.App.3d 82, 92.)


In >People v. Mitchell (2008) 164
Cal.App.4th 442 (Mitchell), the
defendant was convicted of four counts of receiving stolen property, including
checks belonging to her employer, Billy C. (count 17), and a Discover card
belonging to Billy's late wife, Barbara C. (count 21). (Id.
at pp. 446-447, 461.) The two offenses
were alleged to have occurred on or about December 20, 2004, the day the checks and the Discover
card were found in a stolen Mitsubishi.
(Id. at pp. 449, 461.) On appeal, the People conceded counts 17 and
21 were duplicative (id. at p. 462)
and the court reversed the conviction on count 21 (id. at p. 463). The court
stated: "[T]he mere fact the checks
and credit card were withheld or concealed from the rightful owner by defendant
at the same time, i.e., the day they were found in the Mitsubishi, does not
preclude conviction for multiple counts of receiving stolen property. If the evidence showed those items had been
received by defendant on different occasions, presumably multiple convictions
would be permitted." (>Id. at p. 462.) The court noted "there is nothing in the
record to suggest the People had any evidence as to when defendant came into
possession of [the property]. . . . [¶] Defendant was charged in counts 17
[and] 21 . . . in the alternative with buying, receiving,
concealing, selling, withholding, or aiding in concealing or withholding
property. No evidence was presented as
to defendant's buying, receiving, or selling any of the property. Thus, on each count, defendant's guilt turned
on when she concealed or withheld the property from its owner. In her argument to the jury, the prosecutor
explained these counts were based on defendant's possession of the property,
i.e., her concealing or withholding the property, on the indicated
day[]. . . . [¶] [T]he
People were required to prove defendant concealed or withheld the
property . . . at the time alleged. They satisfied that burden. They were not required to prove when
defendant received the property, as that was not their theory of
liability. Because the evidence showed
defendant possessed both the checks of Billy C. (count 17) and the Discover
card of Barbara C. (count 21) on or about December 20, 2004, she could not be convicted on both
offenses." (Id. at p. 463.)

Here,
counts 6, 7 and 8 alleged that "[o]n or about March 19, 2011," Vorabduth bought, received,
concealed, sold and withheld property stolen in the burglaries charged in
counts 2, 3 and 5, respectively. The
prosecutor presented no evidence showing when Vorabduth received the stolen
property. He tried the case on the
theory that Vorabduth committed the offenses in counts 6, 7 and 8 on March 19,
2011, when the stolen property "was found in her car," that is, when she concealed and withheld it
from the rightful owners. (>Mitchell, supra, 164 Cal.App.4th at p. 463.)


Respondent
argues the record contains substantial evidence to support a reasonable
inference that Vorabduth received the stolen property at different times as
part of different transactions.
Respondent asserts there were five similar residential burglaries at
different locations on different dates; Vorabduth was identified at the first
and fourth burglaries; and she was found in possession of property stolen
during the remaining three burglaries.
This argument ignores the fact the jury found Vorabduth not guilty of
the burglaries in counts 2, 3 and 5.
While the People presented evidence those burglaries occurred, they presented
no evidence tying Vorabduth to those burglaries. (Cf. Mitchell,
supra, 164 Cal.App.4th at p. 463
[Although there was "[c]ircumstantial evidence of defendant's opportunity
to steal property while working for Billy C. . . . , it
[was] conceivable someone else stole the property and passed it on to
defendant."].)

For the
foregoing reasons, we reverse the convictions on counts 7 and 8. The court operations assessment ($40 for each
conviction) therefore must be reduced from $200 to $120. (§ 1465.8, subd. (a).)

DISPOSITION

The
judgment is reversed as to counts 7 and 8.
The $200 court operations assessment (§ 1465.8) is reduced to
$120. In all other respects, the
judgment is affirmed. The trial court is
directed to correct the abstract of judgment accordingly and to forward the
corrected abstract to the Department of Corrections and Rehabilitation.





BENKE, Acting P. J.



WE CONCUR:







McINTYRE, J.







AARON, J.