P.v. Jones

Filed 8/25/08 P.v. Jones CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from a judgment of the Superior Court of Los Angeles County.
Ronald V. Skyers, Judge. Affirmed with modifications.

Pamela J. Voich, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General,
Paul M. Roadarmel, Jr., and Sarah J. Farhat, Deputy Attorneys General, for Plaintiff and Respondent.

________________

Appellant Homer A. Jones appeals from a judgment entered after a jury found him guilty of count 3, receiving stolen property, motor vehicle (Pen. Code, 496d,
subd. (a)),^[1]and count 4, receiving stolen property, keys ( 496, subd. (a)).^[2] Appellant admitted one prior conviction within the meaning of section 667.5 and two prior convictions within the meaning of section 666.5.

The trial court sentenced appellant to 10 years in state prison as follows: as to count 3, the trial court imposed the upper term of three years, plus an additional one year pursuant to section 667.5, subdivision (b), and an additional six years for the two prior Vehicle Code section 10851 convictions pursuant to section 666.5. As to count 4, the trial court stayed sentencing pursuant to section 654.

We affirm with modifications.

CONTENTIONS

Appellant contends that there was insufficient evidence to support his convictions for receiving stolen property and that the trial court erred in its imposition of a sentence enhancement on count 3 based on appellants priors under section 666.5.

FACTS AND PROCEDURAL HISTORY

Viewing the whole record in the light most favorable to the judgment below as we must (People v. Ceja (1993) 4 Cal.4th 1134, 11381139), the evidence established the following. On June 9, 2007, at approximately 11:00 p.m., Marco Osorio (Osorio) parked his red truck near his house. Inside the truck were tools and two sets of keys. One set was to his bosss truck and one set was to his house and a warehouse. The next morning, the truck was gone and broken glass was on the ground.

On June 12, 2007, Los Angeles Police Department officers informed Osorio that his car had been located. Osorio arrived at the location and identified his truck, which had a broken window. His tools and keys were missing. Los Angeles Police Department Officer Jesse Oropeza, who inspected the truck with Osorio, was directed to a nearby tent in which he found appellant and a woman sleeping. Upon searching the tent, the officer found one set of Osorios keys on a mattress within arms length of appellant, and a second set of Osorios keys in appellants right front pocket. Jos Rios (Rios), who happened to be nearby, told the officer that he saw appellant, who was wearing a red shirt, drive and park a red truck on June 11, 2007. He had seen appellant in the neighborhood numerous times in the past, and knew appellants mother and sister. Appellant was wearing the same shirt when Rios identified him to the officers. Osorio did not know appellant and never gave him permission to possess the truck or the keys.

At the sentencing hearing, the trial court denied appellants motion to dismiss counts 3 and 4 notwithstanding the verdict.

DISCUSSION

I. Sufficient evidence supported appellants convictions for receiving stolen property

Appellant contends that the evidence did not establish the elements of state of mind and possession as to count 3, receiving stolen property, the motor vehicle, and count 4, receiving stolen property, the keys.

The role of an appellate court in reviewing the sufficiency of the evidence is limited. The court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidencethat is, evidence which is reasonable, credible, and of solid valuesuch that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]
[] . . . But it is the jury, not the appellate court, which must be convinced of the defendants guilt beyond a reasonable doubt. [Citation.] Therefore, an appellate court may not substitute its judgment for that of the jury. (People v. Ceja, supra, 4 Cal.4th at pp. 11381139.)

The elements of receiving stolen property are: (1) the property was stolen;
(2) the defendant had possession of the stolen property; and (3) the defendant knew the property was stolen. ( 496, subd. (d); People v.Price (1991) 1 Cal.4th 324, 464, superseded by statute on other grounds as stated in People v. Hinks (1997) 58 Cal.App.4th 1157, 11611165.) Possession of stolen property may be actual or constructive. (People v.Grant (2003) 113 Cal.App.4th 579, 596.) Actual possession requires that a person knowingly exercise physical control over a thing. (People v.Gatlin (1989) 209 Cal.App.3d 31, 4445.) Constructive possession does not require actual possession, but does require that a person knowingly exercise control over, or the right to, a thing. (Ibid.) While mere access or proximity to stolen goods is not sufficient to infer possession, it is sufficient if the defendant acquires a measure of control or dominion over the stolen property. (People v.Myles (1975) 50 Cal.App.3d 423, 429.)

Knowledge is typically proved not by direct evidence, but by an inference from circumstantial evidence. (People v.Alvarado (1982) 133 Cal.App.3d 1003, 1019.) Conscious possession of recently stolen property alone is insufficient to permit the inference that defendant knew the property was stolen, but the attributes of possessiontime, place, and manner, may furnish the additional quantum of evidence needed. (People v. Reyes (1997) 52 Cal.App.4th 975, 985.) Knowledge may be inferred from the defendants lack of satisfactory explanation of how he came to possess the stolen item. (People v.Alvarado, supra, at pp. 10191020.)

Here, appellant does not dispute that Osorios truck and keys were stolen. Osorio parked his truck, containing tools and two sets of keys, in the evening. The next morning, the truck was missing and broken glass was on the ground. Osorio did not know appellant and never gave him permission to possess the truck or the keys.

Appellant urges, however, that the evidence did not show that appellant possessed the truck or the two sets of keys. We disagree. Rios testified that appellant, whom he had recognized from the neighborhood, drove and parked the truck near the tent. He also testified that appellant was wearing the same shirt that he wore when he was driving the truck. One set of keys was in appellants front pocket and the other set was found beside appellant on a mattress inside his tent.

Nonetheless, appellant contends that because the jury rejected Rioss testimony when it acquitted him of count 1, grand theft auto, and deadlocked on count 2, unlawful driving or taking of a vehicle, it must have rejected Rioss testimony that he saw appellant driving the truck. Appellant also complains that the jurors asked for multiple read backs of Rioss testimony, and after the verdict, the jurors told the prosecutor that the jurors had not believed Rios. Therefore, he contends, the evidence did not support the findingthat he possessed the truck.

Appellants arguments are unavailing. The People urge that an inconsistency in a verdict is not a sufficient reason for setting it aside, and an acquittal of one or more counts shall not be deemed an acquittal of any other count. But, we conclude the verdicts are not inconsistent. The jury acquitted appellant on grand theft auto ( 487, subd. (d)(1)), which contains the element of theftthe stealing, taking away, or driving away of the personal property of another, with the intent to permanently deprive the owner of his property. ( 484; CALJIC No. 14.35.) The crime of receiving stolen property does not include the element of theft. ( 496, subd. (d).) Accordingly, the verdict was not inconsistent because the jury could have concluded that appellant did not intend to take or steal the truck but still have found that appellant knowingly received possession of the stolen truck. Indeed, one may not be convicted of stealing and of receiving the same property except in certain circumstances not implicated here. (People v. Jaramillo (1976) 16 Cal.3d 752, 757.) Moreover, the jurys deadlock on count 2, unlawful driving or taking of a vehicle, has no relevance to its finding on count 4 anddoes not mean, as appellant urges, that the jury completely rejected Rioss testimony.

Additionally, appellants complaint that the jurors told the prosecutor that the jurors had not believed Rios is a mischaracterization of defense counsels argument in her motion to dismiss count 3. Instead, defense counsel merely stated that one of the jurors [indicated] that some of the jurors, two of them, had an issue with even believing the main witness. (Italics added.) Again, by pointing to a remark allegedly made by one juror, appellant fails to convince us that the verdict was not supported by substantial evidence because the jury rejected Rioss testimony.

Finally, appellants assertion that the jury may have mistakenly believed the keys found on or near appellant were keys to the truck, and inferred constructive possession of the truck based on that mistake, is mere speculation, unsupported by the evidence. Rather, Osorio unequivocally testified that one set of keys was to his bosss truck and the other was to his house and a warehouse.

Appellant also claims that possession of the keys was not established because his mere presence near the keys found on the mattress was insufficient to establish possession. We disagree. Appellant was in a tent. One set of keys was found in appellants pockets, and the other was on the mattress within arms length. The jury could well conclude that appellant possessed the keys.

As to the requirement of knowledge, appellant contends that because the jury rejected Rioss testimony when it acquitted him on count 1, grand theft auto and deadlocked on count 2, unlawful driving or taking of a vehicle, [it was clear] there was no evidence that appellant knew the truck was stolen. Nor, he argues, did mere possession of the keys establish that he knew the truck had been stolen. We disagree. There was no evidence establishing why appellant had the keys in his pocket, and as previously stated, proof of knowing possession by a defendant of recently stolen property raises a strong inference that defendant knew it was stolen. (People v.Reyes,supra, 52 Cal.App.4th at p. 985.) And, knowledge can be inferred from the defendants failure to explain how he came to possess a stolen item. (People v.Alvarado, supra, 133 Cal.App.3d at pp. 10191020.) The fact that the keys were taken from a truck that was recently stolen leads to a strong inference that appellant knew the truck and keys were stolen. Rioss unequivocal testimony that he saw appellant drive and park the stolen truck, permitted the jury to infer that appellant received possession of both the truck and the keys.

We conclude the evidence was sufficient to support the jurys verdict as to counts 1 and 2.

II. The trial court erred in imposing sentence enhancements on count 3

The People concede that the trial court erred in imposing six additional years pursuant to section 666.5.

Section 666.5, subdivision (a)^[3]imposesa greater base term, not an enhancement, for certain recidivists. (People v.Demara (1995) 41 Cal.App.4th 448, 452.) As appellant argues, and the People concede, based on the trial courts comments at the sentencing hearing regarding appellants criminal history, imposition of an upper term was proper. Recognizing appellants recidivist nature, the trial court sentenced appellant to the three-year upper term on count 3, then enhanced this sentence by one year for the section 667.5, subdivision (b) prior, and three years each for the two section 666.5 priors. But, as both parties agree, the trial court should have imposed a base term under section 666.5 of four years plus an additional one year under section 667.5, for a total of five years.

DISPOSITION

The judgment is modified to reflect that as to count 3, appellant is sentenced to a base term under section 666.5 of four years plus an additional one year under section 667.5, for a total of five years. In all other respects, the judgment is affirmed. The trial court is ordered to send a certified copy of the modified abstract of judgment to the Department of Corrections.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

_____________________, P. J.

BOREN

We concur:

______________________, J.

ASHMANN-GERST

______________________, J.

CHAVEZ

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^[1] All further statutory references are to the Penal Code, unless otherwise indicated.

^[2] Appellant was found not guilty on count 1, grand theft auto ( 487, subd. (d)(1)) and the trial court declared a mistrial on count 2, unlawful driving or taking of a vehicle. (Veh. Code, 10851, subd. (a).)

^[3] Section 666.5, subdivision (a) provides that: (a) Every person who, having been previously convicted of a felony violation of Section of 10851 of the Vehicle Code, or felony grand theft involving an automobile in violation of subdivision (d) of Section 487 . . .  regardless of whether or not the person actually served a prior prison term for those offenses, is subsequently convicted of any of these offenses shall be punished by imprisonment in the state prison for two, three, or four years, or a fine of ten thousand dollars ($10,000), or both the fine and the imprisonment.