People v. Ambriz CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCS272474
- Trial judge
- Edward P. Allard III
- Outcome
- modified — Affirmed as modified, with directions.
- Area
- criminal
- Panel
- Gilbert Nares (author), Cynthia Aaron
Analysis
The trial court convicted the defendant of both attempted unlawful taking of a vehicle and attempted grand theft of an automobile based on the same act. The Court of Appeal modified the judgment by striking the conviction for attempted unlawful taking of a vehicle as a lesser included offense and affirmed the remainder of the judgment.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Conviction for attempted unlawful taking of a vehicle (Count 10) as a lesser included offense of attempted grand theft of an automobile (Count 11).“It therefore follows that attempted unlawful driving or taking of a vehicle is a lesser included offense of attempted grand theft of an automobile when both crimes are based on the same act, the attempted unlawful taking of the same vehicle.” | unclear | error | agree with court agree with court |
Authorities
- relied: People v. Barrick (1982) 33 Cal.3d 115 — A defendant cannot be convicted of 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 lesser-included-offense doctrine to attempt crimes, relying on the established principle from People v. Barrick that concurrent convictions for grand theft and unlawful taking based on the same act are improper. The reasoning logically extends this principle to the attempt context by noting that the elements of attempt are identical for both underlying offenses when based on the same act.
How this analysis was made · dispute it
unusual dispositionThe trial court entered convictions on both count 10 (attempted unlawful taking or driving of a vehicle, Pen. Code § 664/Veh. Code § 10851) and count 11 (attempted grand theft of an automobile, Pen. Code §§ 664/487, subd. (d)(1)) based on the same attempted taking of the same vehicle, staying both under section 654. The Court of Appeal, accepting the Attorney General's concession, held count 10 was a lesser included offense of count 11, struck the count 10 conviction, and otherwise affirmed with directions to prepare an amended abstract of judgment.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Entry of judgment of conviction on both attempted unlawful taking/driving of a vehicle (count 10) and attempted grand theft of an automobile (count 11) arising from the same act“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.” | de novo | error (law misapplied) | agree with court Whether one offense is necessarily included in another is a question of law. People v. Barrick holds that Vehicle Code section 10851 is a lesser included offense of grand theft auto, so dual convictions for the same taking are barred; because an attempt simply adds the element of a direct but ineffective step toward the completed crime (§ 664), the lesser-included relationship carries over to the attempted offenses. Striking the lesser conviction rather than merely staying it under section 654 is the correct remedy, since section 654 addresses punishment, not multiple convictions. |
Authorities
- relied: People v. Barrick (1982) 33 Cal.3d 115 — Unlawful taking or driving of a vehicle (Veh. Code § 10851) is a lesser included offense of grand theft of an automobile, so a defendant may not be convicted of both for the same taking of the same vehicle.
- missed: People v. Reed (2006) 38 Cal.4th 1224 — Multiple convictions for the same act are permitted under Penal Code section 954 unless one offense is necessarily included in the other under the statutory elements test (not the accusatory pleading test); the court did not cite this governing framework, though applying it yields the same result.
The appellate opinion: sound with gaps — The court correctly extended Barrick's holding to the attempted offenses and ordered the proper remedy of striking the lesser conviction, and the Attorney General's concession made extended analysis unnecessary. It did not, however, cite the Supreme Court's current framework for multiple convictions in People v. Reed or expressly apply the statutory elements test to the attempt offenses, leaving a small gap in the reasoning.
Opinion
Filed 11/5/15 P. v. Ambriz 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, D067732
Plaintiff and Respondent, v. (Super. Ct. No. SCS272474)
CARLOS AMBRIZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Edward P.
Allard III, Judge. Affirmed as modified, with directions.
Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Eric A. Swenson, Lynne G. McGinnis and Kristine A.
Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent. Defendant Carlos Ambriz was convicted of two counts of receiving stolen property (counts 2, 8; Pen. Code,1 § 496, subd. (d)); two counts of unlawfully taking and driving a vehicle (counts 3, 13; Veh. Code, § 10851, subd. (a)); burglary of a motor vehicle (count 9; § 459); attempted unlawful taking and driving of a vehicle (count 10;
§ 664; Veh. Code, § 10851); and attempted grand theft of an automobile (count 11;
§§ 664, 487, subd. (d)(1). Counts 10 and 11 are based on attempts to unlawfully take the same vehicle. Ambriz also admitted two prior prison term enhancements were true.
(§ 667.5, subd. (b).)
The Court sentenced Ambriz to a total term of five years eight months in county jail, consisting of the following consecutive terms: two years on count 2; eight months each on counts 3, 8, 9, and 13; and one year for one of the prior prison enhancements.
The court imposed a 12-month custodial midterm on counts 10 and 11, but stayed each pursuant to section 654.
DISCUSSION
On appeal, Ambriz contends his conviction for attempted unlawful taking of a vehicle charged in count 10 must be reversed because it is a lesser included offense of attempted grand theft of a vehicle charged in count 11. 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.) An attempt to commit either offense 1 All statutory references are to the Penal Code unless otherwise stated. 2 requires the defendant to take a "direct but ineffective step toward committing" the offense with the intent to commit that offense. (See CALCRIM No. 460 [Attempt];
§ 664.) It therefore follows that attempted unlawful driving or taking of a vehicle is a lesser included offense of attempted grand theft of an automobile when both crimes are based on the same act, the attempted unlawful taking of the same vehicle.
DISPOSITION
The judgment is modified by striking the conviction for attempted unlawful driving or taking of a vehicle (§ 664; Veh. Code, § 10851) as charged in count 10. As so modified, the judgment is 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.
PRAGER, J.* WE CONCUR:
NARES, Acting P. J.
AARON, J.
* Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 3
Cites, in this corpus
- People v. Barrick Crim. 22389 · 1982-12-10