People v. Ramos CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCN317271
- Trial judge
- Timothy M. Casserly
- Outcome
- modified — Affirmed as modified, with directions.
- Area
- criminal
- Panel
- Cynthia Aaron (author), Gilbert Nares, Patricia D. Benke
Analysis
The trial court convicted the defendant of grand theft of an automobile and unlawfully driving or taking a vehicle based on the same act. The Court of Appeal modified the judgment to strike the conviction for unlawfully driving or taking a vehicle as a lesser included offense and affirmed the remainder of the judgment.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Conviction for unlawfully driving or taking a vehicle (Veh. Code, § 10851, subd. (a))“A defendant cannot be convicted of grand theft of an automobile and unlawful driving or taking of a vehicle where, as here, both offenses are based on the same act. (People v. Barrick (1982) 33 Cal.3d 115, 128.)” | de novo | error | agree with court agree with court |
Authorities
- relied: People v. Barrick (1982) 33 Cal.3d 115 — A defendant cannot be convicted of both grand theft of an automobile and unlawful driving or taking of a vehicle where both offenses are based on the same act.
The appellate opinion: sound — The opinion correctly applies the established rule from People v. Barrick that a defendant cannot be convicted of both grand theft of an automobile and unlawful driving or taking of a vehicle arising from the same act. The reasoning is concise and directly addresses the appellant's contention with the appropriate controlling authority.
How this analysis was made · dispute it
unusual dispositionAfter a bench trial, the San Diego Superior Court convicted Ramos of both grand theft of an automobile (Pen. Code, § 487, subd. (d)(1)) and unlawfully driving or taking a vehicle (Veh. Code, § 10851, subd. (a)) arising from the same taking of the victim's car, staying the latter under section 654 and imposing five years. The Court of Appeal, accepting the Attorney General's concession, struck the Vehicle Code section 10851 conviction as a lesser included offense of grand theft auto and otherwise affirmed, directing an amended abstract of judgment.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Entry of convictions on both grand theft of an automobile (count 1) and unlawful driving or taking of a vehicle (count 2) based on the same act of taking the victim's car“A defendant cannot be convicted of grand theft of an automobile and unlawful driving or taking of a vehicle where, as here, both offenses are based on the same act.” | unclear | error (law misapplied) | agree with court Whether one offense is necessarily included in another is a question of law, and People v. Barrick holds that Vehicle Code section 10851 is a lesser included offense of grand theft of an automobile when both rest on the same taking; under the multiple-conviction rule a defendant may not stand convicted of both a greater and a necessarily included offense. The opinion's facts recite a single taking of the running car, and the People conceded the point, so striking the lesser conviction rather than merely staying it under section 654 was the correct remedy. |
Authorities
- relied: People v. Barrick (1982) 33 Cal.3d 115 — Unlawful driving or taking of a vehicle under Vehicle Code section 10851 is a lesser included offense of grand theft of an automobile, so a defendant cannot be convicted of both when they are based on the same act.
The appellate opinion: sound — The court identified the sole issue, applied the controlling Supreme Court authority on lesser included offenses, and imposed the proper remedy of striking the lesser conviction rather than leaving it stayed. The opinion is brief and rests on a concession, but the concession was properly accepted and nothing in the recited facts suggests the section 10851 count rested on a post-theft driving distinct from the taking.
Opinion
Filed 7/25/14 P. v. Ramos 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, D064383
Plaintiff and Respondent, v. (Super. Ct. No. SCN317271)
ADOLFO RAMOS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Timothy M. Casserly, Judge. Affirmed as modified, with directions.
E. Elliot Adler, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Stacy Tyler, Deputy Attorneys General, for Plaintiff and Respondent. On March 27, 2013, the victim left her parked car unlocked and with the engine running while she went inside an adjacent building. When she came back outside, she saw Adolfo Ramos in the driver's seat of her car, backing out of the parking spot. A short time later, the police found Ramos driving the victim's car.
Ramos waived his right to a jury trial. The court found Ramos guilty of both grand theft of an automobile (Pen. Code, § 487, subd. (d)(1); count 1) and unlawfully driving or taking a vehicle, (Veh. Code, § 10851, subd. (a); count 2) and further found that he had served five prior prison terms (Pen. Code, §§ 667.5, subd. (b), 668). The court dismissed three of the prison priors and sentenced Ramos to five years in jail: the three-year middle term for grand theft of an automobile, a stayed term (Pen. Code, § 654)
for unlawfully driving or taking a vehicle, and one year for each of the two remaining prison priors.
Ramos appeals, contending that his conviction for unlawfully driving or taking a vehicle must be reversed because it is a lesser included offense of grand theft of an automobile. Respondent properly concedes the point. A defendant cannot be convicted of grand theft of an automobile and unlawful driving or taking of a vehicle where, as here, both offenses are based on the same act. (People v. Barrick (1982) 33 Cal.3d 115, 128.)
DISPOSITION
The judgment is modified by striking the conviction for unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a); count 2). As so modified, the judgment is 2 affirmed. The trial court is directed to prepare an amended abstract of judgment and to forward the amended abstract of judgment to the San Diego County Sheriff's Department.
AARON, J.
WE CONCUR:
BENKE, Acting P. J.
NARES, J.
Cites, in this corpus
- People v. Barrick Crim. 22389 · 1982-12-10