gno.law

People v. Jimenez CA4/1

California Court of Appeal · D063938 · 2014-03-28 · Unpublished

Proceeding
appeal from a judgment
Trial court
Superior Court of San Diego County · No. SCD243887
Trial judge
Peter L. Gallagher
Outcome
affirmed — Affirmed.
Area
criminal
Panel
Patricia D. Benke (author), O'Rourke, Joan K. Irion

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T06:42Z · confidence high

The trial court denied the defendant's request for a sua sponte jury instruction stating that he could not be convicted of both driving a stolen vehicle and receiving the same stolen vehicle. The Court of Appeal affirmed the judgment, holding that no such instruction was required because the prosecution's theory was based on post-theft driving rather than the initial theft of the vehicle.

Ruling reviewedStandardThe courtThe model
Failure to instruct jury sua sponte that defendant could not be simultaneously convicted of Vehicle Code section 10851, subdivision (a) (driving stolen vehicle) and Penal Code section 496d (receiving stolen vehicle) for the same property.
“Here, no clarifying instruction was required because defendant was not prosecuted for a section 10851, subdivision (a) theft offense.”
de novocorrectagree with court
agree with court

Authorities

  • relied: People v. Rogers (2006) 39 Cal.4th 826 — A trial court has a sua sponte duty to instruct the jury on the general principles of law relevant to the issues raised by the evidence.
  • relied: People v. Young (2005) 34 Cal.4th 1149 — In determining the correctness of jury instructions, the reviewing court looks to the instructions as a whole and considers the arguments of counsel.
  • relied: People v. Mathson (2012) 210 Cal.App.4th 1297 — Whether a trial court properly instructed on the applicable principles of law is reviewed de novo.
  • relied: People v. Garza (2005) 35 Cal.4th 866 — A person convicted of taking a car with intent to permanently deprive the owner cannot also be convicted of receiving the same vehicle as stolen property, but a conviction based on posttheft driving does not preclude a separate conviction for receiving the vehicle.
  • relied: People v. Austell (1990) 223 Cal.App.3d 1249 — Accords with the principle that no instruction is required prohibiting dual convictions for driving and receiving the same stolen vehicle when the driving charge is based on post-theft conduct.

The appellate opinion: sound — The opinion correctly applies the rule from People v. Garza that dual convictions for driving and receiving a stolen vehicle are only precluded when the driving charge is based on the initial theft. The court properly reviewed the prosecutor's closing arguments to determine the theory of the case was post-theft driving, thereby negating the need for a limiting instruction.

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:31Z · confidence low

A San Diego jury convicted Pedro Jimenez of unlawfully driving or taking a vehicle (Veh. Code, § 10851, subd. (a)), receiving the same stolen vehicle (Pen. Code, § 496d), and failing to comply with an officer's lawful order, and the trial court entered judgment on all counts without instructing the jury that it could not convict of both stealing and receiving the same car. On appeal, Division One of the Fourth District held no sua sponte instruction was required because the prosecution's theory, as shown in closing argument, was posttheft driving rather than theft, and it affirmed the judgment.

Ruling reviewedStandardThe courtThe model
Trial court's failure to instruct the jury sua sponte that defendant could not be convicted of both taking the vehicle under Vehicle Code section 10851, subdivision (a) and receiving the same vehicle under Penal Code section 496d, and the resulting entry of convictions on both counts.
“The trial court had no duty to instruct the jury that it was prohibited from convicting defendant of both driving the stolen car and receiving it as stolen property.”
de novocorrectagree with court
Under People v. Garza, dual convictions under section 10851(a) and the receiving statute are barred only when the 10851 conviction rests on a theft (taking) theory; a conviction based on posttheft driving does not preclude a receiving conviction. The appellate court properly reviewed the instructional claim de novo and, consistent with People v. Young, looked to counsel's arguments, which repeatedly disclaimed any theft theory and relied solely on defendant's driving. That reasoning is consistent with Garza, which itself examined the record to determine the basis of the 10851 conviction. The weakness is that the opinion does not describe the 10851 instruction actually given (e.g., whether the jury was told it could convict on either taking or driving) and does not state how long before the stop the car was stolen (only that it was 'recently stolen'), facts Garza used to confirm the conviction was for posttheft driving; nor does it address People v. Jaramillo, the Supreme Court decision holding dual convictions improper where the record does not disclose the basis of the 10851 verdict. The result nonetheless appears correct on the record described, so I agree with the court.

Authorities

  • relied: People v. Garza (2005) 35 Cal.4th 866 — A defendant convicted under Vehicle Code section 10851(a) on a theft (taking) theory cannot also be convicted of receiving the same vehicle, but if the 10851(a) conviction is based on posttheft driving, a separate receiving conviction is not precluded.
  • relied: People v. Austell (1990) 223 Cal.App.3d 1249 — Convictions for unlawful driving under section 10851 and for receiving the same stolen vehicle may both stand where the 10851 conviction rests on driving rather than theft.
  • relied: People v. Rogers (2006) 39 Cal.4th 826 — A trial court has a sua sponte duty to instruct on the general principles of law relevant to the issues raised by the evidence.
  • relied: People v. Young (2005) 34 Cal.4th 1149 — In assessing the correctness of jury instructions, a reviewing court considers the instructions as a whole and the arguments of counsel.
  • relied: People v. Mathson (2012) 210 Cal.App.4th 1297 — Whether the trial court correctly instructed on the applicable principles of law is reviewed de novo.
  • missed: People v. Jaramillo (1976) 16 Cal.3d 752 — Where the record does not disclose whether a section 10851 conviction rested on taking or on posttheft driving, the defendant may not also be convicted of receiving the same vehicle as stolen property.

The appellate opinion: sound with gaps — The court correctly identified Garza as controlling and reasonably used the prosecutor's repeated disclaimers of any theft theory to conclude the section 10851 conviction rested on posttheft driving, so the result is defensible. It skipped, however, any discussion of the instructions actually given, the timing of the theft relative to the driving, and the Supreme Court's Jaramillo decision that defendant's argument necessarily invokes.

How this analysis was made · dispute it

record incomplete

Opinion

Filed 3/28/14 P. v. Jimenez CA4/1 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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D063938

Plaintiff and Respondent, v. (Super. Ct. No. SCD243887)

PEDRO JIMENEZ,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Peter L.

Gallagher, Judge. Affirmed.

Michael Anthony Hernandez for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Scott C. Taylor and Charles C. Ragland, Deputy Attorneys General, for Plaintiff and Respondent.

A jury found Pedro Jimenez guilty of unlawfully taking or driving a stolen vehicle (Veh. Code, § 10851, subd. (a);1 count 1); receiving a stolen vehicle (Pen. Code, § 496d; count 2); and failure to comply with a police officer's lawful order (§ 2800; count 3). On appeal, 1 All subsequent statutory references are to the Vehicle Code, unless otherwise specified. Jimenez contends the trial court erred when it did not instruct the jury sua sponte that he could not be simultaneously convicted of count 1 and count 2 for stealing and receiving the same stolen property. We affirm the judgment.

BACKGROUND

On October 13, 2012, at about 1:30 a.m., San Diego Police Sergeant Paul Yang was on patrol. Sergeant Yang observed a car being driven without its headlights on and initiated a stop for the traffic violation. Immediately after stopping the car, the driver stepped out and placed his hands in the air. Sergeant Yang ordered the driver to sit in the car. The driver complied, but he drove away from the traffic stop once he returned to the car. Sergeant Yang pursued the car for one block, but lost it once it turned onto an adjoining street.

A short time later, Officer Stephen Thorn reported he had seen a car that matched the description of the fleeing car. Officer Thorn reported he had detained the car's passenger, but the driver fled on foot behind a nearby house. Sergeant Yang identified the car as the same one that had fled from him, but the officers were unable to locate the driver. Sergeant Yang asked a dispatcher to contact the car's registered owner and it was discovered it had been recently stolen.

On October 13, 2012, at about 11:30 p.m., officers detained two males in connection with a reported disturbance. Sergeant Yang arrived at the scene, immediately identified defendant as the driver of the car that had fled from the traffic stop earlier in the day, and arrested him for the offenses listed above.

Jury trial commenced on April 9, 2013, and the jury found defendant guilty of all three counts on April 12, 2013.

2 DISCUSSION

Defendant contends the trial court erred by not instructing the jury sua sponte that it could not convict defendant for both the theft of the car (§ 10851, subd. (a)) and receiving the same stolen car (Pen. Code, § 496d). The People contend such an instruction was not necessary because defendant was prosecuted for posttheft driving, which is a separate conviction for receiving the stolen car. We agree with the People.

A trial court has a sua sponte duty to instruct the jury on the general principles of law relevant to the issues raised by the evidence. (People v. Rogers (2006) 39 Cal.4th 826, 866.)

In determining the correctness of jury instructions, the reviewing court looks to the instructions as a whole and considers the arguments of counsel. (People v. Young (2005) 34 Cal.4th 1149, 1202.) Whether a trial court properly instructed on the applicable principles of law is reviewed de novo. (People v. Mathson (2012) 210 Cal.App.4th 1297, 1311.)

Section 10851, subdivision (a), separately prohibits both the unlawful driving or taking of a vehicle. "A person who violates section 10851[, subdivision] (a) by taking a car with the intent to permanently deprive the owner of possession, and who is convicted of that offense on that basis, cannot also be convicted of receiving the same vehicle as stolen property." (People v. Garza (2005) 35 Cal.4th 866, 876.) "If, on the other hand, a section 10851[, subdivision] (a)

conviction is based on posttheft driving, a separate conviction . . . for receiving the same vehicle as stolen property is not precluded." (Ibid.)

Here, no clarifying instruction was required because defendant was not prosecuted for a section 10851, subdivision (a) theft offense. Although defendant contends the prosecutor presented evidence that the car had been stolen, the record makes clear that the prosecutor did 3 not contend that defendant stole the car. At the outset of closing argument, the prosecutor set forth the basis for the section 10851 charge: "He was driving a stolen vehicle." Later in closing argument, the prosecutor again clarified his theory of the case: "Again, the People are not required to prove how [the] car was stolen; right? [¶] There's no evidence about that. We don't know. But that's not part of what the People are required to prove." The prosecutor yet again made clear that the section 10851, subdivision (a) charge was based on defendant's unlawful driving, not theft, of the car: "So again, we don't have to prove the taking because, honestly, the People don't know how that car was taken. [¶] On the other hand, we do know that the defendant was driving that vehicle at 1:26 in the morning on October 13th, 2012." The prosecutor never once argued or even suggested that defendant had originally stolen the car.

The trial court had no duty to instruct the jury that it was prohibited from convicting defendant of both driving the stolen car and receiving it as stolen property. (Accord, People v. Austell (1990) 223 Cal.App.3d 1249, 1252.)

DISPOSITION

The judgment is affirmed.

BENKE, Acting P. J.

WE CONCUR:

O'ROURKE, J.

IRION, J.

Cites, in this corpus