People v. Jaramillo

• Decision Date: 26 April 1976
• Docket Number: Cr. 18624
• Citation: 129 Cal.Rptr. 306,16 Cal.3d 752,548 P.2d 706
• Parties: , 548 P.2d 706 The PEOPLE, Plaintiff and Respondent, v. Anthony Lopez JARAMILLO, Defendant and Appellant.
• Court: California Supreme Court

Page 306

129 Cal.Rptr. 306

16 Cal.3d 752, 548 P.2d 706

The PEOPLE, Plaintiff and Respondent, v. Anthony Lopez JARAMILLO, Defendant and Appellant.

Cr. 18624.

Supreme Court of California,

In Bank.

April 26, 1976.

Joel M. Kriger, San Diego, under appointment by the Supreme Court, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Alan S. Meth and Patricia D. Benke, Deputy Attys. Gen., for plaintiff and respondent.

WRIGHT, Chief Justice.

Anthony Lopez Jaramillo appeals from a judgment upon jury convictions of the unlawful driving or taking of a vehicle (Veh.Code, § 10851) and receiving stolen property (Pen.Code, § 496, subd. 1). The question presented is whether, in light of the broad scope of conduct proscribed by Vehicle Code section 10851, defendant can properly be convicted of violating both that section and Penal Code section 496. We conclude for reasons which follow that an accused can be convicted of both violations Only if his conviction of the Vehicle Code section is predicated on conduct not constituting a theft of the vehicle involved, and we reverse the judgment in the manner hereinafter indicated.

During the night of August 27, 1972, a green Pontiac convertible belonging to Larry and Ramona Ramsey was stolen from a location near their living quarters in San Diego. On September 8, 1972, a citizen in Van Nuys observed defendant as he emerged from the driveway of an apartment building adjoining the home of the witness. Defendant carried a large object which appeared to be a five-gallon water bottle and proceeded across the street to the yard of another residence. The witness telephoned police and continued to observe defendant's activities. When a patrol car appeared defendant hid in some shrubbery until it passed by. He then emerged from the bushes, talked briefly with a man who was sitting in one of two vehicles parked along the curb and then proceeded to the second vehicle where he opened the trunk, placed something therein and entered the vehicle.

William P. Knight, a Van Nuys police officer, responded to a call to investigate a possible burglary in progress at the scene of defendant's activities. As Knight approached two parked vehicles he directed the beam of his flashlight into one of the automobiles and observed defendant lying across a metal-topped console as if he were attempting to hide beneath the dashboard. He appeared to be feigning sleep. Knight observed in the back seat a five-gallon water bottle filled with gasoline, a two-gallon bucket partially filled with gasoline and a section of garden hose. A radio check of the vehicle's license plate revealed it to be the Ramsey's stolen car. Taped inside the right front side of the windshield of the stolen vehicle was a temproary military base pass with defendant's name on it. A gas cap fitting the tank of the stolen car was found in the defendant's back pocket. The glove box wherein the Ramseys had locked their car keys prior to the theft had been pried open.

We note preliminarily that there are three separate statutory measures which provide punishment for the taking or use of an automobile without the owner's consent. Penal Code section 499b, commonly referred to as the 'misdemeanor joy-riding statute,' provides in pertinent part: 'Any person who shall, without permission of the owner thereof, take any automobile . . . or other vehicle . . . for the purpose of temporarily using or operating the same, shall be deemed guilty of a misdemeanor. . . .' Penal Code section 487, subdivision 3, commonly referred to as 'grand theft--auto,' provides that every person who feloniously steals, takes, carries, or drives away the automobile of another is guilty of grand theft. (See also Pen.Code, §§ 484, 486.) Vehicle Code section 10851 might be deemed to proscribe conduct which falls between that proscribed by the Penal Code sections. It provides in part that '(a)ny person who drives or takes a vehicle not his own, without the consent of the owner thereof and with the intent either permanently or temporarily to deprive the owner thereof of his title to or possession of the vehicle, whether with or without intent to steal the same . . . is guilty of a public offense. . . .'

'(T)he physical conduct prohibited by the three enactments is substantially the same, but . . . there purports to be a distinction as to the intent with which the act is done in each instance. It may be presumed that the Legislature intended by these sections to deal with problems which are properly distinguishable. . . . The distinction . . . is admittedly a subtle one, and would present a rather difficult problem if it were required that a court instruct a jury as to the distinction in a given situation. It may well be that the Legislature intended to leave the decision as to which section should be invoked in a particular case to the prosecutor.' (People v. Thomas (1962) 58 Cal.2d 121, 125--126, 23 Cal.Rptr. 161, 162, 373 P.2d 97, 98.)

In the instant case the prosecutor elected to charge defendant by information with three violations, to wit: violations of Penal Code section 487, subdivision 3, of Vehicle Code section 10851 and of Penal Code section 496, subdivision 1, receiving stolen property. ¹ In submitting the question of the taking of the vehicle to the jury the court instructed in terms of CALJIC No. 14.35 (Pen.Code, § 487, subd. 3), ² CALJIC No. 14.36 (Veh.Code, § 10851), ³ and CALJIC No. 14.37. ⁴ The latter instruction purports to distinguish the two 'taking' offenses. It further directs that an accused may not be convicted of both offenses and in case of a reasonable doubt as to which of the two offenses the accused is guilty when it is concluded that he is guilty of at least one of the offenses, he must be found in violation of Vehicle Code section 10851. The jury was Not instructed that defendant could not be properly convicted of both the theft or the taking of a vehicle and receiving that vehicle as stolen property. As indicated, the jury found defendant guilty of a violation of Vehicle Code section 10851 and of receiving stolen property.

In what appears to have been an attempt to avoid the proscription against double punishment, defendant was sentenced on the receiving conviction as the greater of the two offenses of which he was convicted, with the sentence on the taking conviction temporarily stayed, the stay to become permanent upon the successful completion of the term of the sentence for the receiving conviction. ⁵ This treatment overlooks, however, the basic problem of whether defendant may properly be Convicted of both charges, it being a fundamental principle that one may not be convicted of stealing and of receiving the same property. (E.g., People v. Briggs (1971) 19 Cal.App.3d 1034, 1036, 97 Cal.Rptr. 372; People v. Williams (1967) 253 Cal.App.2d 952, 958, 61 Cal.Rptr. 238; People v. Marquez (1965) 237 Cal.App.2d 627, 634, 47 Cal.Rptr. 166; People v. Tatum (1962) 209 Cal.App.2d 179, 183, 25 Cal.Rptr. 832; see generally, 136 A.L.R. 1087.)

Vehicle Code section 10851 proscribes a wide range of conduct. It prohibits taking or driving a vehicle with intent to either permanently Or temporarily deprive the owner of title Or possession of, and With or without intent to steal the vehicle. It is not possible under the verdict, as rendered to determine which combination of proscribed conduct and intent resulted in the finding of guilt in the present case. Indeed, it is quite likely that no refined determination was made by the fact finder. The jury could have found defendant guilty of a violation of Vehicle Code section 10851 simply because some doubt existed as to whether defendant intended to steal or merely to temporarily deprive the Ramseys of possession and to drive their vehicle. Had only the Vehicle Code violation been found against defendant such a general determination would be sufficient. However, in the present case the matter is complicated by the fact that defendant was also charged and convicted of receiving the identical vehicle, and the question is thus raised whether defendant can be convicted of receiving stolen property when contemporaneously convicted of a violation which May have been predicated on the theft of that same property.

The statute proscribing receipt of stolen property '. . . is directed at those who knowingly deal with thieves and with their stolen goods after the theft has been committed. In other words, it is directed at the traditional 'fence' and at those who lurk in the background of criminal ways in order to provide the thieves with a market or depository for their loot. Such offenses are essentially different from the actual theft of property prohibited by section 484. . . . If the legislature had intended in (section 496) to embrace concealment of stolen property by the thief, it would have been a simple matter to say 'every thief or any other person . . . who conceals, etc.' . . . ( ) A defendant may, of course, be charged with both crimes, but it is for the trier of fact to determine whether he is guilty as a thief or as a non-thief of concealing and withholding.' (People v. Tatum (1962) 209 Cal.App.2d 179, 183--184, 25 Cal.Rptr. 832, 834.)

It is clear, of course, that when an accused is convicted of a violation of Penal Code section 487, subdivision 3, which Necessarily requires a finding that the accused intended to steal, he cannot also be convicted of receiving that same stolen property. If, on the other hand, in convicting an accused of a violation of Vehicle Code section 10851, a jury finds that the accused intended only to temporarily deprive the owner of possession for the purpose of driving a vehicle, then the accused may also be guilty of a violation of section 496, subdivision 1, if there is other evidence which establishes the elements of that crime--including evidence of the independent theft of the...