P. v. Belton
Defendant Jerald L. Belton appeals from his conviction of unlawfully driving or taking a vehicle with a prior (Veh. Code, 10851, subd. (a), Pen. Code,[1] 666.5, subd. (a), count 1), receiving stolen property with a prior ( 496d, subd. (a), 666.5, subd. (a), count 2), and resisting a peace officer ( 148, subd. (a)(1), count 3), with enhancements for two prison prior convictions ( 667.5, subd. (b)). Defendant contends his conviction for receiving stolen property violates the rule against dual convictions for taking and receiving the same property. In the alternative, he contends the trial court erred in failing to instruct the jury sua sponte that it could not convict him of both theft and receiving stolen property. He next contends the trial court improperly made dual use of facts in imposing the upper term on count 1 or, in the alternative, using an element of the crime as the basis for the upper term. Finally, he contends the trial court erred in calculating presentence custody credits. The People concede error in the calculation of custody credits, and we accept that concession. We also conclude the trial court erred in failing to instruct the jury as to the rule precluding dual convictions, and we will therefore reverse defendants conviction for receiving stolen property. In all other respects, Court will affirm the judgment.
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