P. v. Fuller

Filed 3/10/06 P. v. Fuller CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Edward D. Webster, Judge. Affirmed in part, reversed in part.

Tara Selver, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, and Robert M. Foster, Supervising Deputy Attorney General, for Plaintiff and Respondent.

Defendant and appellant David Lee Fuller (defendant) was convicted of one count of vehicle theft under Vehicle Code section 10851, subdivision (a) (section 10851(a)), and one count of receiving stolen property under Penal Code section 496d, subdivision (a) (section 496d(a)).

Defendant contends that he was improperly convicted of possessing stolen property and theft of the same property. The People concede, and we agree, that defendant was improperly convicted on both counts.

I

FACTUAL AND PROCEDURAL BACKGROUND

On January 10, 2004, Rogelio Vargas reported that his Toyota truck had been stolen from his workplace in Redlands. Two days later, at 11:15 a.m., Deputy Chavez was dispatched because an anonymous caller had reported suspicious activity; the caller saw a red dually truck load a silver Toyota truck onto a dually trailer. The caller believed that the Toyota truck was stolen.

As Deputy Chavez was driving to the location given by the anonymous caller, he saw a red dually truck with a silver truck on its trailer coming toward him. The deputy stopped the red dually truck. Deputy Chavez asked the driver, defendant, if the truck on the trailer was his. Defendant stated that the silver truck was not his; he thought the truck might be stolen and took it. Defendant claimed that he was moving the silver truck to a better location. The deputy noticed that the seats and interior of the silver truck had been stripped; he ran the truck's vehicle identification number which revealed that it had been reported as stolen.

At trial, defendant testified that he told Deputy Chavez that he thought the silver truck was stolen because it obviously had been stripped. Therefore, he was on his way to take it to a better location, a Toyota dealership, to avoid any further damage to the truck.

II

DISCUSSION

A. Defendant's Conviction for Possession of Stolen Property and Theft of the Same Property Was Improper

Defendant's sole contention on appeal is that he could not be convicted of taking or driving a vehicle under section 10851(a), and receiving stolen property under section 496d(a).

In reviewing the same issue, albeit under the more general receiving stolen property under Penal Code section 496, subdivision (a), rather than receiving a stolen vehicle under section 496d(a), the California Supreme Court, in People v. Garza (2005) 35 Cal.4th 866 (Garza), recently concluded:

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