People v. Black
The PEOPLE, Plaintiff and Respondent, v. JIMMY LEE BLACK, Defendant and Appellant
- Area
- criminal
- Panel
- Patricia D. Benke (author)
Analysis
The trial court convicted the defendant of vehicle theft and receiving stolen property and sentenced him to the upper term for the vehicle theft count. On appeal, the Court of Appeal reversed the receiving stolen property conviction as a violation of the rule against multiple convictions for a single act, but affirmed the vehicle theft conviction and found the failure to instruct the jury on this principle to be harmless.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Conviction for receiving stolen property (Pen. Code, § 496, subd. 1) based on the same vehicle as the vehicle theft conviction.“If the jury’s finding Black violated Vehicle Code section 10851 was based on a finding he stole the truck, the jury erred in also convicting him of receiving stolen property.” | de novo | error | agree with court The appellate court correctly applied the holding in People v. Jaramillo, which establishes that a defendant cannot be convicted of both stealing a vehicle and receiving the same vehicle as stolen property because these offenses arise from a single act. The court properly noted that the record did not specify if the vehicle theft conviction was based on 'stealing' or merely 'driving,' but followed the post-Jaramillo practice of reversing the lesser offense (receiving) to allow the greater offense (vehicle theft) to stand, ensuring the defendant is not punished twice for one act. |
Failure to give a sua sponte instruction (CALJIC No. 17.03) that the defendant could not be convicted of both stealing and receiving the same property.“Since there was no evidence here of more than one act or transaction, the trial court had a sua sponte duty to give the jury CALJIC No. 17.03” | de novo | error | agree with court The court correctly identified that the trial court had a duty to instruct the jury on the general principle that one cannot be convicted of multiple crimes based on a single act, citing People v. Sedeno. However, the court correctly determined that this instructional error was harmless because the appellate court was reversing the receiving stolen property conviction anyway, meaning the jury's error in convicting on both counts did not affect the final judgment on the vehicle theft count. |
Authorities
- relied: People v. Jaramillo (1976) 16 Cal.3d 752 — A defendant cannot be convicted of both vehicle theft and receiving the same vehicle as stolen property because they are based on a single act.
- relied: People v. Sedeno (1974) 10 Cal.3d 703 — The trial court has a duty to instruct the jury on general principles of law relevant to the issues raised by the evidence.
- relied: People v. Lawrence (1980) 111 Cal.App.3d 630 — For judicial economy, reviewing courts should reverse the conviction for the lesser offense and let the conviction for the greater offense stand when a single act supports both.
The appellate opinion: sound — The opinion is sound because it correctly applies the binding precedent of People v. Jaramillo to the specific facts of the case, recognizing that the dual convictions violated the single-act rule. It also correctly identifies the trial court's instructional error under People v. Sedeno but properly applies the harmless error doctrine to affirm the remaining conviction.
The trial court entered judgment on jury convictions for unlawfully taking or driving a vehicle (Veh. Code, § 10851) and receiving the same vehicle as stolen property (Pen. Code, § 496), imposing an upper term on the vehicle count and staying the receiving count under section 654. The Court of Appeal held that under People v. Jaramillo a defendant cannot be convicted of both stealing and receiving the same vehicle where the record does not show the jury found only unlawful driving, reversed the receiving conviction, found the failure to give CALJIC No. 17.03 sua sponte harmless in light of that reversal, and otherwise affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Entry of judgment on both the Vehicle Code section 10851 conviction and the Penal Code section 496 conviction for the same truck, where the record does not show whether the jury found Black stole the truck or merely drove it unlawfully.“If the jury’s finding Black violated Vehicle Code section 10851 was based on a finding he stole the truck, the jury erred in also convicting him of receiving stolen property.” | de novo | error (law misapplied) | agree with court Jaramillo is binding Supreme Court authority holding that a defendant cannot be convicted of both vehicle theft and receiving the same stolen vehicle, and that where the verdict is ambiguous between theft and posttheft driving the dual convictions cannot stand. The court correctly rejected the People's section 654 argument because Jaramillo rests on the theft/receiving bar, not on section 654, and the remedy of striking the lesser conviction (per Lawrence) is consistent with Jaramillo's own statement that the section 10851 conviction would stand absent retrial. The court's broader statement that a defendant cannot be convicted of multiple crimes based on a single act is in tension with Penal Code section 954 as construed in People v. Pearson, but the narrower theft/receiving rule independently supports the result. |
Failure to instruct the jury sua sponte (CALJIC No. 17.03) that the taking/driving and receiving counts were alternative and that Black could not be convicted of both stealing and receiving the same vehicle.“Since there was no evidence here of more than one act or transaction, the trial court had a sua sponte duty to give the jury CALJIC No. 17.03” | de novo | harmless error (procedure) | agree with court Under Sedeno the trial court must instruct on general principles of law relevant to the issues raised by the evidence; because the evidence showed only one act or transaction, the jury needed to be told the counts were alternatives. The court's harmlessness conclusion follows logically because reversing the receiving conviction eliminates the only prejudice the omitted instruction could have caused. The reasoning is brief but the result is correct. |
Authorities
- relied: People v. Jaramillo (1976) 16 Cal.3d 752 — A defendant cannot be convicted both of vehicle theft under Vehicle Code section 10851 and of receiving the same vehicle as stolen property; where the record does not show whether the jury found theft or mere unlawful driving, the dual convictions cannot stand.
- relied: People v. Lawrence (1980) 111 Cal.App.3d 630 — When a defendant is improperly convicted of both taking and receiving the same property, the reviewing court may for judicial economy reverse the lesser (receiving) conviction and let the greater conviction stand rather than remand for retrial.
- relied: People v. Sedeno (1974) 10 Cal.3d 703 — A trial court has a sua sponte duty to instruct on the general principles of law relevant to the issues raised by the evidence.
- missed: People v. Pearson (1986) 42 Cal.3d 351 — Under Penal Code section 954 a defendant may be convicted of multiple offenses arising from a single act unless one is a necessarily included offense of another; section 654 bars multiple punishment, not multiple conviction. This undercuts the opinion's stated rationale that a general principle forbids multiple convictions for a single act, though the specific theft/receiving bar of Jaramillo still supports the result.
The appellate opinion: sound with gaps — The court correctly applied Jaramillo's theft/receiving bar and Sedeno's sua sponte instruction duty, and reached a defensible remedy consistent with Jaramillo and Lawrence. It did not, however, address People v. Pearson, whose construction of Penal Code section 954 contradicts the opinion's broad statement that a defendant cannot be convicted of multiple crimes based on a single act, leaving the stated rationale imprecise even though the result is right.
Opinion — Benke
Opinion
BENKE, J.A jury convicted Jimmy Lee Black of unlawfully taking or driving a vehicle without permission of the owner (Veh. Code, § 10851, subd. (a)) and receiving stolen property (Pen. Code, § 496, subd. 1.). The court sentenced him to serve the upper term of three years in prison for the Vehicle Code section 10851, subdivision (a) conviction with a stayed (Pen. Code, § 654) upper term for receiving stolen property. Black appeals.
Shortly after midnight on January 19, 1989, Thomas Mason returned home and found his Toyota pickup missing. Mason had given no one permission to drive the truck. He called the police and reported the truck stolen. At approximately 2:30 a.m. on February 8, National City police officers saw Black driving the pickup. They ran a radio check on the license. While awaiting a response, they followed Black to a laundromat where they spoke with him. The officers received information on their radio inquiry indicating the vehicle had been reported stolen. They arrested Black and discovered the Toyota’s ignition punched and covered with a rag. Black testified he had borrowed the truck from a friend. After Black asked him about the punched ignition, the friend showed him a pink slip which was in the glove box.
Relying on People v. Jaramillo (1976) 16 Cal.3d 752 [129 Cal.Rptr. 306, 548 P.2d 706], Black contends both convictions must be reversed. He points out a defendant cannot be convicted of both stealing a vehicle and receiving the same vehicle as stolen property. He notes it is unclear whether the jury found he had stolen the truck when it found he had unlawfully taken or driven it. He also contends the trial court erred in failing to give a sua sponte instruction he could not be convicted of both stealing the truck and receiving it as stolen property.
In Jaramillo, the Supreme Court held a defendant could not be convicted both of vehicle theft and receiving the stolen vehicle. The prosecution here, *525 arguing Penal Code section 654 bars dual punishment not dual conviction, fails to recognize Jaramillo was based not on Penal Code section 654 but on the general principle a defendant cannot be convicted of multiple crimes based on a single act. (1 Witkin & Epstein, Cal. Criminal Law (2d ed.) §§ 118, 119, 121, pp. 138, 139, 141.) If the jury’s finding Black violated Vehicle Code section 10851 was based on a finding he stole the truck, the jury erred in also convicting him of receiving stolen property.
In Jaramillo, as here, the record did not reflect whether the jury found the defendant had stolen the truck or had merely unlawfully driven it. In Jaramillo, the Supreme Court reversed both convictions and remanded, stating the prosecution could seek retrial on both the Vehicle Code section 10851 count and the Penal Code section 496, subdivision 1 count, or if it chose not to, the Vehicle Code section 10851 conviction would stand. (People v. Jaramillo, supra, 16 Cal.3d at p. 760.)
Since the Jaramillo decision, for the sake of judicial economy reviewing courts faced with the problem raised here have reversed the conviction of a lesser offense and let the conviction of the greater offense stand. (E.g., People v. Lawrence (1980) 111 Cal.App.3d 630, 640 [169 Cal.Rptr. 245].) We follow this approach.
Black contends the trial court erred in failing to give a sua sponte instruction he could not be convicted of both stealing the vehicle and receiving the stolen vehicle. We agree. The trial court had a duty to instruct the jury on the general principles of law relevant to the issues raised by the evidence (People v. Sedeno (1974) 10 Cal.3d 703, 716 [112 Cal.Rptr. 1, 518 P.2d 913]). In this case appellant could not be convicted of taking and receiving the same property. Since there was no evidence here of more than one act or transaction, the trial court had a sua sponte duty to give the jury CALJIC No. 17.03 which provides: “The defendant is accused in Count _of having committed the crime of_and in Count_of having committed the crime of_. These charges are made in the alternative and in effect allege that the defendant committed an act or acts which constitute^] either the crime of _or the crime of_. If you find that the defendant committed an act or acts constituting one of the charged crimes, you then must determine which of such crimes so charged was thereby committed, [¶] In order to find the defendant guilty you must all agree as to the particular crime committed, and, if you find the defendant guilty of one, you must find [him][her] not guilty of the other.” However, in light of our reversal of the receiving stolen property conviction, the error is harmless.
*526 The judgment is affirmed except for the receiving stolen property conviction which is reversed.
Work, Acting P. J., and Todd, J., concurred.
Cites, in this corpus
- People v. Lawrence Crim. 35902 · 1980-10-31
- People v. Jaramillo Crim. 18624 · 1976-04-26
- People v. Sedeno Crim. 16344 · 1974-02-04
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