Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. Nos. FCR268289, FCR264446
Pollak, J.
Defendant Frederick Francisco Ferrando appeals after a jury convicted him of vehicular burglary and receiving stolen property. He argues that there is no substantial evidence to support the conviction, that the trial court erred in instructing the jury, and that he is entitled to additional custody credits. By way of a petition for writ of habeas corpus he also challenges his conviction for petty theft after a plea of no contest in a separate case. We find no merit to defendant’s contentions on appeal but shall set aside the petty theft conviction and remand that matter for further proceedings.
Background
At trial, Donald Pace testified that in July 2009 he lived in Fairfield and owned two cars, “a Tahoe and a Dodge Ram pickup truck.” At approximately 6:30 a.m. on July 6 he got into the truck and noticed that his phone was missing, then looked in the glove compartment and realized that his wallet, a GPS unit, and a blue iPod Nano were also missing. The wallet contained several credit cards, a driver’s license and a Social Security card. He had locked the truck the night before but believed that his son may have unlocked it. Pace had not given anyone permission to take these items.
Roy Lee Hollins testified that he lived in Fairfield in July 2009 and owned a 2005 Mercury Sable. He ordinarily parked the car in his driveway, always set the alarm and listened for a beep to confirm that the car was locked. He performed this routine on the evening of July 6. On the morning of July 7, the police informed him that someone had broken into his car. He looked inside the car and did not see anything out of place, although the driver’s side door was open. A few days later, the police returned to him his identification card, his Social Security card, and some credit cards, all of which he kept in the glove compartment of his car. He did not give anyone permission to take them.
Sylvester Jones, a retired BART police officer, testified that on July 7, 2009, at approximately 4:50 a.m., he heard a car driving up the hill outside his home on Hillside Drive in Fairfield. He looked out the window and saw an SUV parked near the house. He observed two men get out of the car. One had a flashlight and walked to a parked car, while the other man walked to a neighboring house. He believed that one of the men was Black and the other was either Hispanic or Filipino. It was the Black man who approached the parked vehicle. He “went up to the driver’s side of the door, had a flashlight, looked inside the vehicle for a few seconds, and then he started walking across the street to my neighbor’s house....” Sylvester did not see the man take anything from the car. However, he called the police, got dressed, armed himself with a gun, and went outside. He saw the SUV, which he identified as a Ford Explorer, driving away.
Because there are two witnesses with the surname “Jones, ” we refer to each by his first name, and intend no disrespect.
Sylvester got into his car and followed. When he caught up to the Explorer, he saw the Black man “walking away from the hillside, back towards the Ford Explorer.” The man saw Sylvester and asked, “What’s up?” Sylvester responded, “What are you guys doing looking into people’s cars?” The man answered, “We’re not looking into anybody’s cars, ” and Sylvester said he had seen them. The men then got into the SUV and drove away. Sylvester followed for several blocks until the Explorer stopped and the Hispanic man got out of the Explorer and approached Sylvester’s vehicle. He came within 15 or 20 yards, but Sylvester was not able to observe him well. Sylvester thought he could identify this man as defendant, but acknowledged that the street was then “pretty dark.” He testified that defendant’s hair and face looked similar to the man he had seen, but that “he was thinner then.” Sylvester testified that on the night of the incident, “I really didn’t look at his face. I was more interested in where his hands were, ” because Sylvester was concerned that the man might be armed.
After the Hispanic man had gotten out of the Explorer, it drove away and Sylvester continued to follow it. He saw the Explorer turn down a street he knew to be a dead end, so he did not follow but waited at the head of the street. After a few minutes, he drove down the street but did not see the Explorer. He drove out again, looking for the man who had gotten out of the car. He saw the Explorer and again began to follow it. When he saw a police car, he signaled and the police stopped the Explorer. Sylvester saw the Black man and a woman he had not seen before get out of the car.
Sergeant Dan Marshall of the Fairfield Police Department testified that he was working on July 7, 2009, in the early morning. He responded to an alert of suspicious activity near Hillside Drive. He was flagged down by Sylvester and pulled over the Explorer. There were two people inside. The driver was Melesa Haney and the passenger was Van Ivory Jones. Marshall observed “a lot of miscellaneous items of property inside the vehicle.” Marshall had the vehicle towed and Haney and Van Ivory were taken into custody.
Van Ivory Jones is not related to Sylvester Jones.
Detective Brett Morris testified that on the morning of July 7 he spoke to Van Ivory, who was then in custody, and that Van Ivory told him that defendant was the third person in the car that night. Van Ivory told Morris that defendant and Haney were dating and that they stayed in an apartment on Washington Street. Van Ivory said that the previous evening, he had gone to defendant’s apartment where he had encountered defendant and Haney, who “were talking about going out and trying to find unlocked vehicles to take property from....” Van Ivory stated that he had seen defendant steal speakers from a vehicle. He told Morris that the trio had been stealing from cars two to three times a week for the previous three or four months, and that when they did so, Van Ivory would give items he had stolen to defendant in exchange for money.
When Morris spoke to Haney, she asked to use the restroom. When she returned from the rest room, Morris noticed her drop a paper towel in a waste basket, and heard “a loud thump.” When Morris looked in the waste basket, he found credit cards, identification cards and business cards belonging to Hollins.
Van Ivory testified that he knows defendant and Haney. He and Haney were arrested while driving the Explorer on July 7. The Explorer belonged to defendant. That night, Van Ivory met defendant at the apartment where defendant stayed with Haney. At some point, the three left the apartment, though Van Ivory testified that they had no plans. They drove to Vacaville and began “looking through cars.” For months prior to this date, Van Ivory and defendant would look into cars at night, searching for things to steal. Van Ivory testified that, “we would go by a car [and] I would check to see if the door was unlocked, and if it wasn’t, I would just keep going.” Van Ivory carried a flashlight but defendant did not.
At one point during the evening of July 7 defendant approached Van Ivory and asked him to bring the car and to pick up a speaker that was sitting on the curb. Van Ivory testified that he did not see defendant take the speaker from a car, but he assumed that is what had transpired. That evening Van Ivory stole some loose change and an iPod.
Van Ivory testified that after leaving Vacaville that evening, the three drove to Fairfield. Haney parked the car and Van Ivory exited followed by defendant. They began looking into cars but did not find any that were unlocked. Van Ivory testified that defendant was following him closely. Van Ivory said that he did not steal Hollins’s identification and credit cards, and that Haney remained in the Explorer the entire time they were together. He testified that during the months they were stealing together, he never saw defendant enter a car to take property. Rather, Van Ivory would steal items and then sell them to defendant to resell. After taking items from cars, the three would return to the apartment, where Van Ivory and defendant would transact the sale.
On the morning of July 7, after Sylvester had asked what the three were doing, they drove away but were aware that Sylvester was following them. At some point defendant got out of the car and Van Ivory and Haney drove on.
On the afternoon of July 7, based on information obtained from the interviews with Van Ivory and Haney, police obtained and executed a search warrant at defendant’s apartment. When they entered the apartment they found “air compressors, ... tools, laptop computers, GPS units, cell phones, stereo equipment, speakers. Just a ton of stuff.” The police recovered Pace’s GPS unit, identified by its serial number. The GPS unit was found on a computer table just inside the front door. There was an envelope with defendant’s name written on it near the GPS. The police also found a bullet in the apartment.
Defendant was taken into custody on July 8, at which time he was interviewed by Morris. Defendant told Morris that he was in the car with Van Ivory and Haney on July 7 and that, at some point, he asked to get out of the car so he could confront the person who was following them.
On September 17, 2009, defendant was charged by information with one count of second degree burglary of a vehicle (Pen. Code, § 459) for allegedly unlawfully entering the 2005 Mercury Sable belonging to Hollins. He was also charged with one count of receiving stolen property, the GPS unit (§ 496, subd. (a)), and one count of possession of ammunition, having previously been convicted of a felony (§ 12316, subd. (b)(1)).
Further statutory references are to the Penal Code unless otherwise specified.
The jury found defendant guilty of the first two counts, but acquitted him of possession of ammunition. Defendant also pleaded no contest to a single count of petty theft (§ 666) charged in a separate case, No. FCR264446.
In the original information, it was alleged that defendant was released on bail at the time he committed the crimes, and that he had two prior convictions within the meaning of section 667.5, subdivision (b). These allegations are crossed out on the amended information that was read to the jury. Nevertheless, defendant admitted to one of the enhancements for being on bail at the time of the offenses, and admitted that he had served a prior prison term. The second on-bail enhancement was dismissed.
On December 15, 2009, the trial court sentenced defendant to the midterm of two years for receiving stolen property, a consecutive term of eight months for the burglary, two years for the bail enhancement, and one year for the prior prison term. In the separate petty theft case, the court imposed a consecutive term of one-third the midterm, eight months, for a total of six years four months’ imprisonment. Defendant timely noticed an appeal.
Discussion
Substantial evidence supports the burglary conviction
Defendant was convicted of violating section 459 which, as relevant here, provides that any person who enters a “vehicle... when the doors are locked... with intent to commit grand or petit larceny or any felony is guilty of burglary.” He contends there was insufficient evidence that the Mercury Sable was locked and therefore insufficient evidence to support a conviction for burglary.
“Substantial evidence is evidence of legal significance, reasonable in nature, credible and of solid value. [Citation.] The court must review the entire record in the light most favorable to the judgment below and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. If the evidence permits a reasonable trier of fact to conclude the charged crime was committed, the opinion of a reviewing court that the circumstances may also be reconciled with a contrary finding will not warrant reversal.” (People v. Rivera (2003) 109 Cal.App.4th 1241, 1244.)
The totality of the evidence th at the Sable was locked was Hollins’s testimony that it was his practice to lock the car at night and that he believed he did so on the night of July 6, 2009. Opposing this evidence was Van Ivory’s testimony, consistent with his statement to police, that he, defendant and Haney took items only from unlocked vehicles. We have found no case sustaining a conviction for burglary from an automobile without some evidence of forced entry. (See, e.g., People v. Rivera, supra, 109 Cal.App.4th 1241 [where victim’s car window was broken and there was testimony that it was unbroken the day before the crime, substantial evidence supported the conviction of vehicular burglary].) Nonetheless, although the evidence is slim, the jury was entitled to infer from Hollins’s testimony that the car was locked on the night of the theft.
Defendant also argues that there was insufficient evidence to support his conviction on an aiding and abetting theory. The jury was instructed that “A person may be guilty of a crime in two ways: One, he or she may have directly committed the crime. I will call that person the perpetrator. Two, he or she may have aided and abetted a perpetrator who directly committed the crime. A person is equally guilty of the crime whether he or she committed it personally or aided and abetted the perpetrator who committed it. To prove that the defendant is guilty of a crime based on aiding and abetting that crime, the People must prove that 1. The perpetrator committed the crime. 2. The defendant knew that the perpetrator intended to commit the crime. 3. Before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime. And 4. The defendant’s words or conduct did in fact aid and abet the perpetrator’s commission of the crime. Someone aids and abets a crime if he or she knows of the perpetrator’s unlawful purpose and he or she specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator’s commission of that crime.”
The prosecutor argued that defendant could be guilty either as a principal or as an aider and abettor. He argued that “the question becomes who is responsible for this burglary. And you’re probably asking yourself, wait a minute, Ms. Haney was the one that had the property. Why isn’t Ms. Haney the one that’s charged with burglary... ? Now we bring in our concept of aider and abettor liability.... [A]ider and abettor liability is, in a nutshell, it’s this team concept. If you go out, and we all plan to go out and do something together, and we know—I know we share the same plans to go out and do some event, well, we’re really all responsible for the results of that event in some way, if we worked as a team, together, to go accomplish that.” The prosecutor reiterated the instruction on aider and abettor liability, then continued, “Under these facts, I submit to you that Mr. Ferrando, if he’s not the perpetrator, he’s certainly an aider and abettor to the burglary to Mr. Hollins’s car. And... as you heard from Judge Nelson, we don’t have to prove to you which one he was, whether Mr. Ferrando was the aider and abettor, who stood by while Mr. Jones took the property, or whether he was the doer, the perpetrator who actually went into the car.”
Defendant argues that, even assuming that the evidence was sufficient to support the jury’s conclusion that Hollins’s car was locked, there was no evidence that defendant knew Van Ivory would enter a locked car since the uncontradicted evidence was to the effect that the trio looked for unlocked cars to enter. Van Ivory testified that he always looked for unlocked cars, and Detective Morris’s testimony concerning his interview with Van Ivory corroborated that account. The Attorney General counters that Van Ivory “did not state that the trio never stole from locked cars, ” that because Sylvester saw Van Ivory using a flashlight to look into cars, “[t]he jury could have inferred that the men were using the flashlight to see if there were items of interest in a car that warranted the effort of breaking in, ” and that “[b]ecause there was no evidence of a forced entry [into the Sable], a reasonable jury could have inferred that appellant or his accomplices must have used some kind of tool or device to unlock the car from the outside.” The Attorney General continues, “[t]he possession and use of such a device implies that they had planned in advance[] to break into locked cars, ” but concedes that such a tool was not found and argues that “the jury could have found that appellant, who was not arrested until the next day, took the tool with him when he left his two accomplices in the car.”
“To be sufficient, evidence must be ‘substantial.’ [Citation.] Evidence is substantial only if it ‘ “reasonably inspires confidence and is of ‘solid value.’ ” ’ [Citation.] By definition, ‘substantial evidence’ requires evidence and not mere speculation. In any given case, one ‘may speculate about any number of scenarios that may have occurred... A reasonable inference, however, “may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work. [¶]... A finding of fact must be an inference drawn from evidence rather than... a mere speculation as to probabilities without evidence.” ’ ” (People v. Cluff (2001) 87 Cal.App.4th 991, 1002.)
The Attorney General’s theories as to all the inferences that may reasonably be drawn from the evidence may well cross the line into unsupported speculation. Nevertheless, we believe there was sufficient evidence permitting the jury to find that defendant was either the perpetrator or an aider and abettor of the burglary. Defendant was shown to be present when one of two persons entered Hollins’s vehicle. If that person was not defendant, and if the car was locked, it is entirely reasonable to infer that defendant observed the efforts of the other person, Van Ivory, to get into the locked car and understood what was transpiring. Therefore, there is sufficient evidence to support the jury’s verdict finding defendant guilty of vehicular burglary.
The trial court declined to instruct the jury on the lesser included offense of auto tampering (Veh. Code, § 10852) on the ground that the evidence did not support such an instruction. While there is reason to question this ruling (see, e.g., People v. Mooney (1983) 145 Cal.App.3d 502), defendant’s attorney explicitly withdrew his request for such an instruction, thus implicating the doctrine of invited error. (People v. Cooper (1991) 53 Cal.3d 771, 831.) Defendant makes no argument that the court erred in failing to give the instruction or that the failure to request the instruction constituted ineffective assistance of counsel.
Receiving stolen property
Defendant argues that there was insufficient evidence to support the conviction for receiving stolen property. The information specified the GPS unit as the item of stolen property that defendant was charged with receiving. Defendant argues that “there is no substantial evidence that [he] ever took actual or constructive possession of this GPS unit with knowledge that it was stolen. Additionally, there is no substantial evidence that [he] was even aware that this particular GPS unit was present in the apartment.”
“In order to sustain a conviction for the crime of receiving stolen property, it must be established by substantial evidence that the particular property was stolen, and that the accused received, concealed or withheld the property from its owner, knowing it was stolen.” (People v. Shope (1982) 128 Cal.App.3d 816, 820.) “To be convicted of receiving stolen property, one must know he received or was in possession of the goods [citation]. It is not sufficient if someone else placed the items in the defendant’s home or car and defendant never became aware he had the items in the first place [citation].” (People v. Speaks (1981) 120 Cal.App.3d 36, 39.) “Although knowledge that property has been stolen can seldom be proved by direct evidence [citation], ‘possession of stolen property, accompanied by no explanation or unsatisfactory explanation, ... will justify an inference that the goods were received with knowledge that they were stolen. Corroboration need only be slight and may be furnished by conduct of the defendant tending to show his guilt.’ ” (People v. Shope, supra, at p. 821.)
“Possession of the stolen property may be actual or constructive and need not be exclusive. [Citations.] Physical possession is also not a requirement. It is sufficient if the defendant acquires a measure of control or dominion over the stolen property.” (People v. Land (1994) 30 Cal.App.4th 220, 223–224, fn. omitted.)
Van Ivory testified that it was his habit to steal items in defendant’s presence and later sell them to defendant. Defendant argues that Van Ivory’s testimony concerning defendant’s knowledge is insufficient because Van Ivory was an accomplice and his testimony must therefore be corroborated. “There can be no question that it is insufficient corroboration merely to connect a defendant with the accomplice or other personas participating in the crime, but evidence independent of the testimony of the accomplice must tend to connect a defendant with the crime itself, and not simply with its perpetrators.” (People v. Robinson (1964) 61 Cal.2d 373, 400.) In this case, Sylvester testified that he observed defendant with Van Ivory and Haney looking through cars on the night of July 6. Defendant admitted to Detective Morris that he was in the car with Van Ivory and Haney on the night the GPS was stolen. The GPS unit that was stolen from Pace was recovered in defendant’s apartment. Franklin Olomon, who was the onsite manager for the apartment complex testified that defendant moved in to the apartment approximately three months before his arrest and Olomon saw him in the apartment daily during that period. Van Ivory’s testimony was sufficiently corroborated, and the jury could have inferred from his testimony in combination with the other evidence that defendant was aware that the GPS unit was in his apartment and that it was stolen.
Instruction on accomplice testimony
Defendant argues that the trial court erred by not instructing the jury on corroboration of accomplice testimony in regards to the count of receiving stolen property. Defendant concedes that the jury was given this instruction with regard to the first count for vehicular burglary, but contends that the trial court was required to repeat the instruction when instructing on the second count.
“Error in failing to instruct the jury on consideration of accomplice testimony at the guilt phase of a trial constitutes state-law error, and a reviewing court must evaluate whether it is reasonably probable that such error affected the verdict. [Citation.] [¶] Any error in failing to instruct the jury that it could not convict defendant on the testimony of an accomplice alone is harmless if there is evidence corroborating the accomplice’s testimony. ‘ “Corroborating evidence may be slight, may be entirely circumstantial, and need not be sufficient to establish every element of the charged offense.” ’ ” (People v. Williams (2010) 49 Cal.4th 405, 456.)
As discussed above, there was evidence corroborating Van Ivory’s testimony. Further, the jury was instructed with respect to the burglary count that “[i]f the crime of second degree burglary of a vehicle was committed, then Van Ivory was an accomplice to that crime. You may not convict the defendant of second degree burglary of a vehicle based on the statement or testimony of an accomplice alone. You may use the statement or testimony of an accomplice to convict the defendant only if: 1. The accomplice’s statement or testimony is supported by other evidence that you believe. 2. That supporting evidence is independent of the accomplice’s statement or testimony. And 3. That supporting evidence tends to connect the defendant to the commission of the crime.”
Although this instruction stated that Van Ivory was an accomplice only to the crime of vehicular burglary, if it occurred, the instruction also included the unqualified explanation that the jury “may use the statement or testimony of an accomplice to convict the defendant only if” the specified conditions were satisfied. Moreover, the jury was instructed as part of the general instructions, not tied to either of the two counts: “Except for the testimony of Van Ivory, which requires supporting evidence, the testimony of only one witness can prove any fact.” “It is well established that the instruction ‘may not be judged in artificial isolation, ’ but must be considered in the context of the instructions as a whole and the trial record.” (Estelle v. McGuire (1991) 502 U.S. 62, 72.) And, a trial court is not required to give instructions that are superfluous or repetitive of other instructions. (People v. Lewis (2001) 25 Cal.4th 610, 653.) There was no error regarding the instructions on accomplice testimony.
In both of the cases cited by defendant, People v. Boyce (1980) 110 Cal.App.3d 726 and People v. Cuellar (1968) 262 Cal.App.2d 766, there was no instruction regarding accomplice testimony.
Instruction on possession of stolen property
Defendant argues that the jury was improperly instructed on the crime of receiving stolen property. The jury was instructed: “To prove that the defendant is guilty of this crime, the People must prove that: 1. The defendant received, concealed or withheld from its owner or aided in concealing or withholding from its owner, property that had been stolen. And 2. When the defendant received, concealed or withheld or aided in concealing or withholding the property, he knew that the property had been stolen. And 3. The defendant actually knew of the presence of the property.” The court omitted language in CALCRIM No. 1750 that “To receive property means to take possession and control of it. Mere presence near or access to the property is not enough.”
“A party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.” (People v. Lang (1989) 49 Cal.3d 991, 1024.) Defendant concedes no objection or request for clarification was made at trial, but argues the instruction affected his substantial rights and, therefore, is preserved even without objection and, alternately, urges this court to exercise its discretion to review the alleged error.
The jury was required under the instruction as given to find that defendant knew the GPS unit was present in his apartment and that it had been stolen. Having found the stolen property in his apartment, there was no need to explain the meaning of the common word “receive”; there was no possibility of finding defendant guilty merely because of “mere presence or access to the property.” The fact that the GPS unit was present in plain view in the apartment rented by defendant, in which there was evidence that he was present daily, was sufficient. “Physical possession of the property in the accused is not necessary to constitute receipt of stolen goods if they were concealed on his premises by others with his knowledge or consent.” (People v. Candiotto (1960) 183 Cal.App.2d 348, 349-350.)
Consecutive sentences
Defendant argues that his consecutive sentences for burglary and receiving stolen property violate section 654 because his “acts comprised an indivisible course of conduct with a single intent and objective.” Section 654, subdivision (a) provides that “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision....” “The purpose of this statute is to prevent multiple punishment for a single act or omission, even though that act or omission violates more than one statute and thus constitutes more than one crime. Although these distinct crimes may be charged in separate counts and may result in multiple verdicts of guilt, the trial court may impose sentence for only one of the separate offenses arising from the single act or omission—the offense carrying the highest punishment.” (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312.) “The question whether section 654 is factually applicable to a given series of offenses is for the trial court, and the law gives the trial court broad latitude in making this determination. Its findings on this question must be upheld on appeal if there is any substantial evidence to support them.” (Ibid.)
“[I]f the evidence shows that goods stolen from different sources were received on a single occasion, there is but one offense of receiving stolen property. However, this rule is inapplicable when there is evidence from which the jury might infer that the goods were not received at the same time or in the same transaction.” (People v. Bullwinkle (1980) 105 Cal.App.3d 82, 92, disapproved on other grounds by People v. Laiwa (1983) 34 Cal.3d 711.) Here, the burglary and the instance of receiving stolen property involved different victims and different dates. The trial court was well within its discretion in finding that the offenses were separate acts meriting separate punishment.
Presentence credits
Defendant argues that he is entitled to additional presentence credits against his sentence. First, he argues that he is entitled to credits under section 2933, as amended in September 2010, approximately nine months after he was sentenced. He also argues that even if the amended version of that statute does not apply, he is entitled to additional credits under a new version of section 4019, which became effective in January 2010.
“No appeal shall be taken by the defendant from a judgment of conviction on the ground of an error in the calculation of presentence custody credits, unless the defendant first presents the claim in the trial court at the time of sentencing, or if the error is not discovered until after sentencing, the defendant first makes a motion for correction of the record in the trial court.” (§ 1237.1.) Defendant understandably made no objection to the calculation of credits at the time of sentencing because the provisions under which he now claims additional credit were not yet enacted. However, following the enactment of these provisions defendant has made no motion in the trial court to include the additional credits to which he claims to be entitled. Although this court may in its discretion correct sentencing errors even where no objection was made (see 6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Appeal, § 45, p. 290) whether sections 2933 or 4019 apply turns in part on where defendant was in custody and whether custody was attributable to one or both of the matters upon which he has been sentenced. Because the record does not contain this information, even if either section applies retroactively this court cannot make a determination of the custody credits to which defendant is entitled. Therefore, any application for additional presentence credits must be made in the first instance in the trial court.
Petition for writ of habeas corpus
On July 29, 2009, defendant was separately charged with one count of petty theft with a prior theft-related conviction (§ 666) (case No. FCR264446). On November 6, he pled no contest and admitted two theft-related prior convictions. Defendant was sentenced to a consecutive eight-month term for the conviction of petty theft with a prior.
On September 9, 2010, a new version of section 666 was enacted. Under the former statute, petty theft could be prosecuted as a misdemeanor or a felony if the defendant had one prior theft-related conviction. The new version of the statute requires that the defendant have been convicted three or more times of theft related offenses in order for petty theft to be prosecuted optionally as a felony.
The prior version of section 666 provided: “Every person who, having been convicted of petty theft, grand theft, auto theft, ... burglary, carjacking, robbery, or a felony violation of section 496 and having served a term therefore in any penal institution or having been imprisoned therein as a condition of probation for that offense, is subsequently convicted of petty theft, then the person convicted of that subsequent offense is punishable by imprisonment in the county jail not exceeding one year, or in the state prison.” (Repealed by Stats. 2010, ch. 219, § 15, eff. Sept. 9, 2010.)
The current version of section 666, subdivision (a) provides that “every person who, having been convicted three or more times of petty theft, grand theft, auto theft, ... burglary, carjacking, robbery, or a felony violation of section 496 and having served a term therefor in any penal institution or having been imprisoned therein as a condition of probation for that offense, is subsequently convicted of petty theft, then the person convicted of that subsequent offense is punishable by imprisonment in the county jail not exceeding one year, or in the state prison.”
Defendant contends that the new statutory requirement of three prior offenses should apply retroactively to his case, since the judgment is not yet final, so that he cannot be convicted of a felony based on evidence of only two prior theft-related offenses. He asserts that his section 666 plea, conviction and sentence should be vacated and that he can be punished for no more than a misdemeanor. The Attorney General concedes that the amended statute applies (see People v. Vinson (2011) 193 Cal.App.4th 1190) but argues that the appropriate remedy is to remand the matter to the trial court so that the prosecutor may submit evidence of other prior theft-related convictions. Defendant replies that a remand to allow proof of additional offenses would violate principles of double jeopardy and due process since the additional prior offenses to which the Attorney General alludes were not alleged in the original pleading.
“Unlike many other sentencing statutes directed to recidivists, section 666 by its terms does not require the statute to be specifically pleaded in the information or indictment. (Compare § 666 with §§ 1170.12, subd. (a), 667, subd. (e) [Three Strikes] and § 667.61, subds. (f) & (i) [‘One Strike’ law].) Nor do constitutional principles of due process require that the statute be specifically alleged as long as the pleading apprises the defendant of the potential for the enhanced penalty and alleges every fact and circumstance necessary to establish its applicability.” (People v. Tardy (2003) 112 Cal.App.4th 783, 787.)
In People v. Figueroa (1993) 20 Cal.App.4th 65, upon which the Attorney General relies for the proposition that remand is the appropriate disposition, the defendant was convicted of sale of cocaine base and possession for sale of cocaine base, and sentenced to an additional three years upon an enhancement alleged and found true that he had done so near a school. At the time the defendant was convicted, the enhancement statute required that the sale occur within 1, 000 yards of a school. While the case was on appeal, the statute was amended to require proof that school was in session or minors were using the school facilities when the crime occurred. The appellate court held that the amended statute applied, but remanded so that the prosecution could introduce evidence concerning the new requirements.
In People v. Mancebo (2002) 27 Cal.4th 735, People v. Botello (2010) 183 Cal.App.4th 1014, and People v. Tardy, supra, 112 Cal.App.4th 783, upon which defendant relies in arguing that allowing proof of additional offenses would violate his right to due process, the appellate courts held that the defendant could not be punished under an enhancement statute that had not been charged, even where there was sufficient evidence that he had violated that statute. Here, defendant was charged with a violation of section 666 as it existed at the time. The charge is the same, but the elements of the crime have changed. On remand, defendant will have the right to withdraw his plea should he wish to do so and will have the right to dispute the additional prior offenses. Thus defendant was and will have been adequately apprised of the charge against him.
Nor does remand to allow the district attorney to introduce evidence of other prior theft-related convictions violate double jeopardy. “A general reversal of a judgment of conviction sends the case back for a new trial. (See Pen. Code, §§ 1260, 1261, 1262.) And the effect of a general reversal of any judgment or order is to restore the parties to the position they were in before the first trial or hearing, except that they are bound to follow the law declared in the appellate opinion.” (6 Witkin & Epstein, Cal. Criminal Law, supra, Appeal, § 166, pp. 412-413.)
Disposition
The judgment in case No. FCR268289 is affirmed. The judgment in case No. FCR264446 is reversed and remanded for further proceedings consistent with this opinion.
We concur: McGuiness, P. J. Jenkins, J.