P.v . Moreno

Filed 1/21/09 P.v . Moreno 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from the Superior Court of San Bernardino County. Michael A. Knish, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed with directions.

Mark J. Shusted, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting and Donald W. Ostertag, Deputy Attorneys General, for Plaintiff and Respondent. Defendant and appellant Jamie Moreno appeals his jury conviction for a single count of unlawfully taking or driving a vehicle in violation of Vehicle Code section 10851, subdivision (a). He argues he was prejudiced because the trial court erred by failing to provide the jury with a unanimity instruction. He also seeks a one-year reduction in his sentence because he contends the trial court erroneously imposed two prior prison term enhancements under Penal Code section 667.5, subdivision (b), when he only served a single prison term for the two prior convictions alleged by the prosecution. In addition, defendant requests a minor clerical correction to the abstract of judgment to reflect that he was sentenced pursuant to Penal Code section 666.5, subdivision (a).

FACTUAL AND PROCEDURAL BACKGROUND

Defendant was charged with a single count of unlawfully driving or taking a Kenworth tractor^[1](Veh. Code, 10851, subd. (a)) while it was parked on a street in Riverside. At trial, the owner testified he parked his tractor on a street in a commercial parking zone on Saturday, February 17, 2007. Two days later, on Monday morning February 19, 2007, the owner discovered the tractor had been stolen and reported it to police.

Police were able to locate the tractor within a short time on the same day, February 19, 2007, because it was equipped with a tracking device. An investigating officer then went to the location where the tractor was parked. The tractor was found parked on property owned by a business that rented out spaces for vehicle storage. The business owner lived in a house on the same property where the business was located. The business owners sister also lived in the house. The investigating officer initially detained the business owner as a suspect but released him after his initial investigation convinced him the owner was not involved in the theft of the tractor.

According to the business owner and his sister, the owner went away for the weekend and returned home late Sunday night or early Monday morning. Although the sister was unsure of the exact dates, she testified she was outside watering the yard while her brother was away when defendant drove up to the house in a green Suburban and asked her if he could rent a space to park a tractor. She had never met defendant before, and she told him he would have to ask her brother. She gave defendant her brothers telephone number and saw him punch the number into his cell phone. Defendant also wrote his telephone number on a piece of paper and gave it to her.

The next day, defendant called her to say he had permission from her brother to rent a space. That night, he brought her $100 for the rent, but she did not give him a receipt because she was not involved in the business and did not know where her brother kept them. Later on the same evening, she glanced out a window and noticed the tractor pulling into the yard, but she was busy with the computer and did not pay much attention. She did not see who was driving the tractor.

The business owner, who knew defendant, and his sister both testified they saw defendant driving away from the property in the green Suburban on Monday a short time before the investigating officer arrived. While en route to the property, the investigating officer also testified he saw a distinctive green Suburban driving away. When he arrived at the property, the investigating officer made contact with the business owner and his sister and asked them to try to determine the ownership of all trucks parked on the property. He was told that defendant had paid rent to park the vehicle on the property and had just left the property driving a green Suburban. The business owner testified he never spoke with defendant about renting a space for the tractor but learned from his sister that defendant had paid her $100 in rent. He first noticed the tractor parked in his lot on Monday while the investigating officer was there. The investigating officer inspected the tractor and noticed it had been ransacked, the ignition had been broken, and some identifying decals had been removed and were on the ground next to the tractor.

While the investigating officer was at the property talking to her brother, the sister called defendant and told him he needed to move the tractor. He said he would be there in a little while. When he did not appear, the sister called him again and defendant told her the tractor could be moved without a key and indicated someone else could move it for him. She also gave defendants phone number to the investigating officer. At the investigating officers direction and in his presence, the business owner placed two or three calls to this phone number. The business owner then indicated he had an incoming call from defendant, and the officer was able to listen to the business owner during the call but could not actually hear the other party on the phone. The business owner asked defendant questions and then repeated the responses out loud.

The jury convicted defendant of unlawfully driving or taking the tractor. In a proceeding bifurcated from trial, the court found defendant suffered a prior conviction for receiving a stolen vehicle (Pen. Code, 496d) within the meaning of Penal Code section 666.5. The trial court also concluded defendant served two prior prison terms within the meaning of Penal Code section 667.5, subdivision (b), for unlawfully driving or taking a vehicle (Veh. Code, 10851, subd. (a)) and for receiving stolen property (Pen. Code,  496). The court sentenced defendant to a total of five years in state prison, which included the middle term of three years under Penal Code section 666.5 for the violation of Vehicle Code section 10851, subdivision (a), plus two consecutive one-year terms for the prior prison terms.

DISCUSSION

Unanimity Instruction

Defendant contends the evidence suggests there were two distinct violations of Vehicle Code section 10851, subdivision (a), which took place on different dates: (1) taking the tractor from its initial location on one date; and (2) driving the tractor to the location where it was recovered on a subsequent date. As a result, defendant argues the trial court committed prejudicial, reversible error by failing to sua sponte instruct the jury they must unanimously agree on the specific crime committed.

As defendant contends, Vehicle Code section 10851, subdivision (a), proscribes two separate and distinct crimes. First, it prohibits the act of taking a vehicle without the owners consent with the intent to steal it. Second, it prohibits the act of driving a vehicle without the consent of the owner with or without the intent to steal. This second nontheft component of Vehicle Code section 10851, subdivision (a), is said to proscribe two types of conducteither posttheft driving of the vehicle once the theft is complete or joyriding, which is driving the vehicle with the intent only to temporarily deprive the owner of possession. (People v. Garza (2005) 35 Cal.4th 866, 876.)

In a criminal case, a jury verdict must be unanimous. [Citations.] . . . Additionally, the jury must agree unanimously the defendant is guilty of a specific crime. [Citation.] Therefore, cases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act. [Citations.] (People v. Russo (2001) 25 Cal.4th 1124, 1132.) On the other hand, where the evidence shows only a single discrete crime but leaves room for disagreement as to exactly how that crime was committed or what the defendants precise role was, the jury need not unanimously agree on the basis or, as the cases often put it, the theory whereby the defendant is guilty. (Ibid.)

A unanimity instruction is required only if the jurors could otherwise disagree which act a defendant committed and yet convict him of the crime charged. (People v. Maury (2003) 30 Cal.4th 342, 423.) For example, a unanimity instruction is required when there is conflicting evidence and acts constituting a criminal offense are fragmented in time or space, so that jurors could have disagreed as to which act the defendant committed. (People v. Wolfe (2003) 114 Cal.App.4th 177, 184-185.) The defendant in Wolfe was convicted by a jury of one count of possession of a firearm. (Id. at p. 180.) The evidence presented at trial indicated six different firearms were found or seen on different dates in various locations inside the home the defendant shared with his mother. The defendants mother testified all of the guns were hers, and gave explanations as to how she had acquired each one. (Id. at pp. 182-183.) A deputy testified the defendant said,  [m]y guns are in the light fixtures above the kitchen . . . .  (Id. at p. 181.) Three of the guns were found in a  cutout  portion of a fluorescent light fixture in the kitchen ceiling. (Ibid.) Based on the evidence, some jurors could have found the defendant guilty based on their belief he possessed certain of the guns, while other jurors may have believed he did not possess those particular guns, but did possess some of the other guns. We therefore concluded the trial court erroneously failed to give a unanimity instruction. (Id. at p. 185.) However, we found the error was harmless. The defendant presented a single defense as to all of the firearms (i.e., they all belonged to his mother), but the jury obviously disbelieved the mothers testimony. Once they rejected the mothers testimony, the jury would not have had a reasonable doubt the defendant possessed the guns in the light fixture based on his confession. (Id. at p. 188.)

A unanimity instruction is also not required when it is possible for a jury to disagree upon the method by which a theft is committed. (People v. Vineberg (1981) 125 Cal.App.3d 127, 139-140.) The defendants in Vineberg stored gold and silver for customers in vaults and were convicted of grand theft from their customers after they sold the customers property in risky arbitrage transactions. (Id. at pp. 132, 135.) At trial, the People argued two alternative theories as to why the defendants were guilty of grand theft. First, the People argued defendants committed theft by trick when they took possession of the customers property because they intended all along to convert it to their own use. Alternatively, the People argued the defendants embezzled the property after it was entrusted to them for safekeeping. (Id. at p. 139.) The trial court did not give a unanimity instruction but did instruct the jury it was not necessary for them to agree on the form of theft committed by the defendants. (Ibid.) On appeal, the defendants argued the jury was erroneously instructed. Because the receipt and sale of the property took place at different times and consisted of two different acts, defendants argued it was conceivable some of the jurors found the defendants embezzled the property while others found there was theft by trick. As a result, there might have been no agreement as to the act upon which the finding of guilt was based. (Ibid.) The appellate court concluded the jury was correctly instructed it was not necessary for them to agree on the method by which the thefts were committed. (Ibid.)

Here, it is true the evidence suggested defendant could have committed two discrete crimes or acts on different dates, either of which would have been sufficient to support a conviction for a violation of Vehicle Code section 10851, subdivision (a). Based on the evidence, the whereabouts of the tractor is unknown from the time the owner parked it on February 17, 2007, and when it was driven into the storage lot late in the evening on February 18, 2007. Thus, it is possible defendant took the tractor by driving it to an unknown location on one day, which would constitute one violation of Vehicle Code section 10851, subdivision (a), and then engaged in posttheft driving of the vehicle to the storage lot on a different date, which would constitute a second and separate violation of Vehicle Code section 10851, subdivision (a). It is also true the prosecutor did not elect to rely on a particular act. During closing arguments, the prosecutor merely argued defendant took or drove the vehicle without the owners consent. However, there was no basis for the jury to disagree as to which act or acts defendant committed or whether he simply committed a single violation of Vehicle Code section 10851, subdivision (a), by moving the tractor only once late in the evening on February 18, 2007. The prosecutor did not argue there were two separate acts, and defendant did not present separate defenses to the possible acts constituting one or two violations of Vehicle Code section 10851, subdivision (a). In closing argument, his counsel merely argued there was reasonable doubt because no one actually saw him move the tractor and the witnesses were not credible. It is obvious the jury rejected these arguments. Under these circumstances, the act or acts of driving or taking the tractor merely constituted the possible methods by which a theft was completed. It was therefore unnecessary for the jury to agree on the method used to accomplish the theft, so a unanimity instruction was not required.

Prior Prison Term Enhancements

Defendant contends, and the People agree, that the trial court erroneously imposed two one-year prior prison term enhancements, because defendant only served one prior prison term, even though the record shows he had two prior convictions for different crimes in two different cases. We also agree.

In pertinent part, Penal Code section 667.5, subdivision (b), provides as follows: [W]here the new offense is any felony for which a prison sentence is imposed . . . the court shall impose a one-year term for each prior separate prison term served for any felony. Subdivision (g) of section 667.5 defines prior separate prison term as a continuous completed period of prison incarceration imposed for the particular offense alone or in combination with concurrent or consecutive sentences for other crimes . . . . In other words, for our purposes, only one prior prison term enhancement under section 667.5, subdivision (b), is appropriate where concurrent sentences were imposed in two or more prior felony cases. (People v. Jones (1998) 63 Cal.App.4th 744, 747.) When a trial court erroneously imposes more prior prison term enhancements than are appropriate under section 667.5, subdivision (b), a reviewing court may strike the redundant enhancements. (People v. Riel (2000) 22 Cal.4th 1153, 1207.)

As defendant contends, the courts minutes and the abstract of judgment in this case indicate the trial court imposed two one-year enhancements under Penal Code section 667.5, subdivision (b), based on the two prior convictions alleged by the prosecution. The first prior conviction was in case No. FVA017096, and the second was in case No. FVA021452. However, the record indicates defendant only served a single continuous prison term for both of these prior convictions. In the earlier case (No. FVA017096), the record indicates the court imposed a suspended sentence and granted probation, which was apparently revoked when defendant was convicted in the later case (No. FVA021452). The abstracts of judgment for both of these cases were filed on the same date, April 13, 2005. The abstract of judgment filed in the later case (No. FVA021452) indicates the sentence imposed was to be served concurrently with the sentence imposed in the earlier case (No. FVA017096). In addition, records kept by the Department of Corrections and Rehabilitation indicate defendant was first received in prison on April 21, 2005, and was then discharged on October 13, 2006. It was therefore erroneous for the trial court to impose two 1-year prior prison term enhancements under Penal Code section 667.5, subdivision (b), based on the two referenced prior convictions. As a result, the redundant prior prison term enhancement should be stricken, and defendants sentence should be reduced by one year from a total of five years to a total of four years.

Correction of the Abstract of Judgment

Defendant was charged and convicted of violating Vehicle Code section 10851, subdivision (a), but he was sentenced pursuant to Penal Code section 666.5, subdivision (a), because the court found he had a prior conviction for receiving stolen property (Pen. Code, 496d, subd. (a)). Penal Code section 666.5, subdivision (a), provides for an increased sentencing range for defendants convicted under Vehicle Code section 10851 who have prior convictions under Penal Code section 496d. However, Penal Code section 666.5, subdivision (a), is not referenced on the abstract of judgment. Defendant therefore requests an amendment to the abstract of judgment to show he was sentenced under Penal Code section 666.5, subdivision (a). The People do not oppose this request.

It is, of course, important that courts correct errors and omissions in abstracts of judgment. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) We have authority to grant requests on appeal to correct a clerical error in an abstract of judgment. (People v. Hong (1998) 64 Cal.App.4th 1071, 1075.) Based on the foregoing, we conclude it would be appropriate for us to direct the Superior Court of San Bernardino County to amend the abstract of judgment to refer to both Vehicle Code section 10851, subdivision (a), and Penal Code section 666.5, subdivision (a).

DISPOSITION

The Superior Court of San Bernardino County is directed to modify the judgment to strike the second prior prison term enhancement and to reflect that defendant was sentenced pursuant to Penal Code section 666.5, subdivision (a), for his violation of Vehicle Code section 10851, subdivision (a). The clerk of the superior court is further directed to prepare an amended abstract of judgment reflecting these modifications and to deliver a certified copy of the amended minute order and abstract of judgment to the Department of Corrections and Rehabilitation. The judgment is affirmed in all other respects.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

McKINSTER

J.

MILLER

J.

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^[1] The vehicle in question is sometimes referred to as a truck and sometimes as a trailer. For the sake of consistency, it will be referred to herein as a tractor.