P.v. McDaniel

Filed 12/22/08 P.v. McDaniel CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

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A jury found defendant Shawn McDaniel guilty of unlawful driving of a vehicle (Veh. Code, 10851, subd. (a)) and receipt of stolen property (Pen. Code, 496d, subd. (a)). The trial court sentenced defendant to a total of 13 years in state prison.

On appeal, defendant contends: (1) the trial court erred in denying his motion for a new trial based on the discovery of new evidence that would have made a different result probable on retrial; (2) there was insufficient evidence to support the trial courts finding that he had a prior strike conviction; (3) he was effectively convicted of taking and receiving stolen property in violation of the common law and Penal Code section 496d, subdivision (a); and (4) the trial court had a sua sponte duty to instruct the jury that defendant could not be convicted both of stealing and receiving the same stolen property and on the difference between vehicle theft and posttheft driving of a stolen vehicle. We affirm in part and reverse in part.

FACTUAL AND PROCEDURAL BACKGROUND

While patrolling near the intersection of Bruceville and Sheldon Roads on June 17, 2007, at 11:30 p.m., Elk Grove Police Officer Ali Khalil turned left onto Bruceville Road and came upon a Jeep Cherokee stranded in the middle of the roadway. Officer Khalil turned his overhead lights on and pulled up behind the stalled Jeep Cherokee and observed defendant attempting to get the vehicle moving again. Defendant managed to get the vehicle moving again and maneuvered it off to the side of the road. Officer Khalil pulled up behind the Jeep Cherokee and ran a records check on the vehicles license plate. He then approached defendant, who was still seated in the vehicle. Officer Khalil asked defendant if he was okay, and defendant responded that there was a problem with the clutch. Officer Khalil noticed that the cover of the vehicles steering column was broken and that no key was in the ignition. He then asked defendant for his identification card. After radioing defendants information to the police dispatcher, Officer Khalil learned that defendant was an unlicensed driver and on parole.

When asked if he had stolen the vehicle, defendant responded that he was the owner of the vehicle and that he and some friends had purchased the vehicle for $2,500 to use for commuting to and from work. Because he was an unlicensed driver, Officer Khalil had the vehicle towed and cited defendant for driving without a license.

Officer Khalil then contacted the registered owner, who disclosed that his son owned the car and drove it. Officer Khalil was unable to contact the registered owners son at that time. The next day Officer Khalil contacted the owner of the vehicle, Gordon Bronson, who said that he thought his vehicle had been stolen around 9:00 p.m. the previous night, June 17.

Having confirmed that the vehicle had been stolen, Officer Khalil set about contacting defendant for further questioning. Defendant lived with his parents, and Officer Khalil went to their house on June 24. Defendant was not present, and his parents were distraught at the police showing up at their residence. Defendants mother then called defendants cell phone and provided defendants cell phone number to Officer Khalil. The next day, June 25, Officer Khalil made several attempts to arrange a meeting with defendant, but defendant attempted to put off finalizing a time to meet and eventually stopped answering his cell phone. Believing that defendant would not meet with him in person, Officer Khalil requested a warrant.

Defendant was charged by amended information with one count of unlawfully driving and taking a vehicle (Veh. Code, 10851, subd. (a)) and with an allegation that he had a prior conviction for the same offense. The information further charged defendant with one count of receipt of stolen property. (Pen. Code,  496d, subd. (a).) The information also alleged defendant had served six prior prison terms and had one strike conviction.

A jury found defendant guilty on both counts and found true the allegation that defendant had a prior conviction for violating Vehicle Code section 10851, subdivision (a). The trial court found all the prior prison term and prior strike conviction allegations true, denied defendants motion for a new trial, and sentenced defendant to four years for the unlawful driving of a vehicle (doubled to eight years based on defendants prior strike conviction), plus five additional years based on the five prior prison terms defendant had served,^[1]for a total of 13 years. The trial court stayed the sentence for receipt of stolen property pursuant to Penal Code section 654.

DISCUSSION

I

The Trial Court Correctly Denied

Defendants Motion For A New Trial

Defendant contends the trial court erred in denying his motion for a new trial because the declaration made by his former girlfriend was newly discovered evidence that made a different result probable on retrial. The People respond that defendant failed to exercise reasonable diligence in locating the new evidence, and in any case the quality of the evidence itself did not make a different result probable on retrial. We agree with the People that the quality of the evidence was not such as to make a different result probable on retrial and thus do not reach the issue whether defendant exercised reasonable diligence.

The determination of a motion for a new trial rests so completely within the courts discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears. [Citations.] [I]n determining whether there has been a proper exercise of discretion on such motion, each case must be judged from its own factual background. [Citation.]

In ruling on a motion for new trial based on newly discovered evidence, the trial court considers the following factors: 1. That the evidence, and not merely its materiality, be newly discovered; 2. That the evidence be not cumulative merely; 3. That it be such as to render a different result probable on a retrial of the cause; 4. That the party could not with reasonable diligence have discovered and produced it at the trial; and 5. That these facts be shown by the best evidence of which the case admits. (People v. Delgado (1993) 5 Cal.4th 312, 328.)

Here, defendants motion for a new trial rested on a declaration made by his former girlfriend, Katina Strong, that he had stayed with her at the time the vehicle was stolen. According to defendant, Strongs testimony would tend to prove that he was not the person Officer Khalil discovered trying to start the stalled vehicle.

The trial court did not abuse its discretion in finding defendants claim unpersuasive. Whatever persuasive power Strongs testimony would have had, there is one glaring fact that effectively nullifies any exculpatory value her testimony might have offered defendant. In her declaration, Strong stated Shawndale did not leave my apartment until the day of June 17, 2007. Even if the jury were to credit Strongs declaration, her statement here is consistent with defendants being guilty of unlawful driving and receipt of stolen property. The vehicle at issue was not stolen until sometime after 9:00 p.m. on June 17, and defendant was not discovered driving the vehicle until roughly 11:30 p.m. that night. The jury could have reasonably concluded that even if defendant had been present at Strongs residence on June 17, he still would have had ample time to acquire the vehicle and be found driving it that night. It is therefore improbable that a different result would have occurred on retrial. The trial courts denial of defendants motion for a new trial was free of error.

II

The Evidence Was Insufficient To Support A Finding

That The Prior Strike Conviction Allegation Was True

Defendant next argues that the trial court erred in finding that his prior grand theft conviction was a strike because the abstract of judgment specified only that he had been convicted of grand theft, not grand theft of a firearm, and the only other evidence offered to prove the prior involved a firearm (and was thereby a strike)^[2]was a Department of Correctionss fingerprint card.^[3] Furthermore, defendant argues that retrial of the truth of the strike conviction is barred by the due process and double jeopardy clauses of the United States Constitution.

The People acknowledge that the abstract of judgment fails to indicate the specific type of grand theft defendant was convicted of, but argue that the evidence is nevertheless sufficient to support a strike because the Department of Correctionss fingerprint card processed in conjunction with the grand theft conviction lists the offense as GRAND THEFT AUTO/FIREARM 487(D), and the People had proof that defendant admitted in his plea to a 2005 offense that the earlier grand theft conviction was a strike. The People further argue that they should be permitted to introduce evidence they possessed (but did not introduce at trial) in support of the truth of the strike conviction.

We agree with defendant that the evidence submitted at trial was insufficient to support the strike conviction but also conclude the People should be permitted the opportunity to produce sufficient evidence on retrial.

The People must prove all elements of an alleged sentence enhancement beyond a reasonable doubt. [Citation.] Where, as here, the mere fact of conviction under a particular statute does not prove the offense was a serious felony, otherwise admissible evidence from the entire record of the conviction may be examined to resolve the issue. . . .

Such evidence may, and often does, include certified documents from the record of the prior proceeding and commitment to prison. [Citations.] Acourt document, prepared contemporaneously with the conviction, as part of the record thereof, by a public officer charged with that duty, and describing the nature of the prior conviction for official purposes, is relevant and admissible on this issue. . . .

However, if the prior conviction was for an offense that can be committed in multiple ways, and the record of the conviction does not disclose how the offense was committed, a court must presume the conviction was for the least serious form of the offense. [Citations.] In such a case, if the serious felony nature of the prior conviction depends upon the particular conduct that gave rise to the conviction, the record is insufficient to establish that a serious felony conviction occurred. (People v. Miles (2008) 43 Cal.4th 1074, 1082-1083.)

In support of his argument that the abstract of judgment and fingerprint card were not sufficient to support the finding that his prior conviction was a strike, defendant cites People v. Williams (1996) 50 Cal.App.4th 1405. In Williams, the abstract of judgment for the defendants prior conviction indicated he had pled guilty to one count of assault on a peace officer in violation of section 245, subdivision (b). (Williams, at p. 1409.) The People sought to use this prior conviction as a strike offense in sentencing the defendant, but the defendant argued the People could do so only if they could show the assault was committed with a deadly weapon. (Id. at pp. 1409-1410.) The trial court found the prior conviction to be a strike, based in part on a Department of Correctionss fingerprint card associated with the defendants prior conviction that read Ct. 1B, ADW on P/O (245(b) PC) (Prob Rev) CC. (Id. at pp. 1409, 1412.)

On appeal, the appellate court reversed the finding of a strike, stressing the fingerprint card is a record of the Department of Corrections, not the court in which the conviction occurred. We know of no reasonable basis to believe that the Department of Correctionss employee who made the notation had any information concerning the underlying conviction other than that revealed in the abstract of judgment. The abstract did not refer to use of a deadly weapon. (People v. Williams, supra, 50 Cal.App.4th at pp. 1405, 1413, fn. omitted.)

The finding here that defendants prior conviction was a strike features the same problem as in Williams. The abstract of judgment from defendants 1994 conviction lists him as having been convicted of PC 487(d) grand theft but does not specify what form of grand theft he was convicted of. The corresponding Department of Correctionss fingerprint card lists defendants conviction as GRAND THEFT AUTO/FIREARM 487(D) CS. As in Williams, there is no reasonable basis to believe that the Department of Correctionss employee who made the notation had any information concerning the underlying conviction other than that revealed in the abstract of judgment. (People v. Williams, supra, 50 Cal.App.4th at p. 1413.) The abstract of judgment is devoid of any particular description of the form of grand theft that defendant was convicted of, and under Penal Code section 487, subdivision (d) grand theft can consist of the theft of property ranging from a firearm to an automobile to a boar. (Pen. Code, 487, subd. (d)(1)-(2).) Critically, however, only grand theft involving a firearm qualifies as a strike. (Pen. Code, 1192.7, subd. (c)(26).) Because grand theft can be committed in multiple ways, and the record of the conviction does not disclose how the offense was committed, this court must presume the conviction was for the least serious form of the offense. (People v. Miles, supra, 43 Cal.4th at p. 1083.) Since the serious felony nature of the prior conviction depends upon the particular conduct that gave rise to the conviction, the record is insufficient to establish that a serious felony conviction occurred. (Ibid.) The evidence here is insufficient to show the prior grand theft conviction is a strike.

Our reasoning here is also consistent with our Supreme Courts recent decision in People v. Delgado (2008) 43 Cal.4th 1059. Delgado indirectly affirmed the holding in Williams and distinguished itself by noting that it dealt with an abstract of judgment that listed both the statute the defendant was convicted under and a separate description of the particular offense. (Delgado, at p. 1069.) The court in Delgado also stressed the reliability of notations made in an abstract of judgment: [T]he abstract is a contemporaneous, statutorily sanctioned, officially prepared clerical record of the conviction and sentence. It may serve as the order committing the defendant to prison ( 1213), and is the process and authority for carrying the judgment and sentence into effect. [Citations.] [Citation.] As such, the Legislature intended [it] to [accurately] summarize the judgment. [Citations.] When prepared by the court clerk, at or near the time of judgment, as part of his or her official duty, it is cloaked with a presumption of regularity and reliability. (Delgado, at p. 1070.) A Department of Correctionss fingerprint card, by contrast, is neither prepared contemporaneously with a conviction nor prepared by the court clerk or other court employee. (Id. at p. 1069 [describing the fingerprint card in Williams as being noncontemporaneous and prepared by a Department of Correctionss employee].) Such a record lacks the indicia of reliability we find in an abstract of judgment.

Finally, defendant argues that retrial on the truth of the prior strike conviction is barred by the due process and double jeopardy clauses of the United States Constitution. However, neither double jeopardy nor due process bars a retrial on the prior conviction allegation, and on remand, the People may present additional evidence to demonstrate that the 1994 grand theft involved a firearm, thereby making that crime a serious felony and a strike. (See, e.g., People v. Barragan (2004) 32 Cal.4th 236, 239.)

III

Defendants Convictions For Both Posttheft

Driving And Receipt Of Stolen Property Were Not Error

Defendant next argues that his conviction for receipt of stolen property must be reversed because Penal Code section 496, subdivision (a) prohibits him from being convicted of both stealing and receiving the same property unless there has been a significant break in time between the original acquisition and later possession of the stolen property. Because he was found with the vehicle only a few hours after it had been stolen and there was no evidence another person was in possession of the vehicle during that period of time, defendant argues he was effectively convicted of stealing and receiving the same stolen property when there had not been a significant break in time.

The People respond that the significant break requirement is inapplicable here, because under People v. Garza (2005) 35 Cal.4th 866, conviction of posttheft driving under Vehicle Code section 10851, subdivision (a) does not preclude a separate conviction of receipt of stolen property. Furthermore, the People stress there was no evidence that defendant stole the vehicle apart from his possession of it and the jury was instructed only on unlawfully driving a vehicle in violation of Vehicle code section 10851, subdivision (a) and therefore defendants separate conviction for receipt of stolen property was proper. We agree with the People.

Subdivision (a) of Vehicle Code section 10851 . . . defines the crime of unlawful driving or taking of a vehicle. (People v. Garza, supra, 35 Cal.4th at p. 871.) [A] defendant convicted under [Vehicle Code] section 10851(a) of unlawfully taking a vehicle with the intent to permanently deprive the owner of possession has suffered a theft conviction and may not also be convicted under [Penal Code] section 496(a) of receiving the same vehicle as stolen property. On the other hand, unlawful driving of a vehicle is not a form of theft when the driving occurs or continues after the theft is complete . . . . Therefore, a conviction under [Vehicle Code] section 10851(a) for posttheft driving is not a theft conviction and does not preclude a conviction under [Penal Code] section 496(a) for receiving the same vehicle as stolen property. (Garza, at p. 871.)

Defendant essentially rests his case on an issue that People v. Garza declined to address, namely the line of demarcation between when theft of a vehicle is complete and when unlawful driving of the vehicle separate from the theft

commences under Vehicle Code section 10851, subdivision (a).^[4] He argues that because there was only an approximate two-hour window between the time the vehicle was stolen and the time he was found driving it, the line between taking and unlawfully driving the vehicle had not been crossed and thus he could not be convicted of unlawfully driving the vehicle, presumably because he was still in the process of taking it.

Although we find this reasoning interesting, it is irrelevant because there was no evidence in the record that defendant stole the vehicle, nor was he prosecuted for stealing the vehicle. Defendant was charged with unlawfully driving a motor vehicle in violation of Vehicle Code section 10851 subdivision (a), and the jury was instructed on the charge of unlawfully driving, not taking, a motor vehicle.

Defendant was discovered with the vehicle roughly two hours after the owner had last seen it, in a different location from where the owner had parked it. Defendant was trying to get the stalled vehicle to start again. Based on the record, the jury could have concluded that defendant was guilty of unlawfully driving a motor vehicle without considering whether it was he or someone else who had actually stolen the vehicle in the first instance, viz., an element of the crime of unlawful driving is not that the driver himself stole the vehicle.

Striving to find some footing, defendant argues that even though he was not charged with unlawfully taking the vehicle, the prosecutions arguments and evidence presented in support of the unlawful driving charge amounted to being convicted of theft of property and receiving the same property. Defendant may feel that the cumulative effect of the evidence and testimony amounts to being charged with unlawful taking of a motor vehicle, but the fact remains that the People charged defendant with unlawful driving of a motor vehicle and receipt of stolen property, and such charges are fully compatible. (People v. Garza, supra,35 Cal.4th at p. 871.) The People were entitled to bring the charges they did and to weave those charges and the evidence together into a persuasive story. (See Old Chief v. United States (1997) 519 U.S. 172, 186-187 [136 L.Ed.2d 574, 591-592] [The standard rule [is] that the prosecution is entitled to prove its case by evidence of its own choice, or, more exactly, that a criminal defendant may not stipulate or admit his way out of the full evidentiary force of the case asthe Government chooses to present it].)

Thus, consistent with Garza, the jury was entitled to find defendant guilty of unlawfully driving the vehicle and receiving it as stolen property.

IV

The Trial Court Had No Sua Sponte Duty To Instruct

On The Dual Conviction Rule Or The

Distinction Between Vehicle Theft And Posttheft Driving

Based on his argument that there was not a complete separation between the theft and subsequent unlawful driving of the vehicle, defendant contends the trial court had a sua sponte duty to instruct the jury that defendant could not be convicted for both the theft and receipt of stolen property and further on the distinction between vehicle theft and posttheft driving of a stolen vehicle. The People respond that even if defendant is right, there was no prejudice because it is not probable that a jury so instructed would have reached a result more favorable to defendant, and thus any error was harmless. We disagree with defendant that there was any sua sponte duty here, and therefore do not address whether failure to so instruct prejudiced defendant.

As noted previously, defendant was charged only with unlawfully driving a motor vehicle, not unlawfully taking a motor vehicle, and the jury was instructed solely on unlawful driving. The trial court had no duty to instruct the jury regarding the bar on convicting defendant of theft and receipt of stolen property or on the distinction between the taking of a vehicle and the posttheft driving of said vehicle when defendant was never charged with the theft/taking of a vehicle in the first place.

DISPOSITION

The judgment of conviction is affirmed. The true finding on the strike allegation is reversed, the sentence is vacated, and the matter is remanded to the trial court for a retrial of the strike allegation and for resentencing.

ROBIE , J.

We concur:

SCOTLAND , P. J.

MORRISON , J.

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^[1] The trial court determined that priors five and six were encompassed in the same prison term, and therefore treated them as if they were a single prior prison term.

^[2] Grand theft of a firearm qualifies as a strike under the three strikes law. (Pen. Code, 1192.7, subd. (c)(26).)

^[3]The clerks transcript contains both the abstract of judgment and the Department of Corrections fingerprint card. It is unclear, however, whether the trial court had the Department of Correctionss fingerprint card before it during sentencing, and in any case, as we note infra, the fingerprint card and the abstract of judgment are insufficient to support the true finding of the strike.

^[4] Whatever the precise demarcation point may be (an issue we need not decidehere), once a person who has stolen a car has passed that point, further driving of the vehicle is a separate violation of [Vehicle Code] section 10851(a) that is properly regarded as a nontheft offense for purposes of the dual conviction prohibition of [Penal Code] section 496(a). (People v. Garza, supra, 35 Cal.4th at pp. 880-881.)