Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court No. INF054358 of Riverside County. Richard A. Erwood and James S. Hawkins, Judges.
Jean Ballantine, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, James D. Dutton, Supervising Deputy Attorney General, and Melissa Mandel, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
King J.
A jury convicted defendant of first degree burglary (count 1—Pen. Code, § 459), petty theft with a prior (§ 666), and receiving stolen property (§ 496). After a bifurcated bench trial, the trial court found true gang enhancement allegations as to all three counts and an allegation that defendant had a prior strike conviction. On appeal, defendant makes four contentions: (1) the trial court erred in permitting defendant to be convicted of both the theft and receipt of the same property; (2) the trial court erred in finding the gang enhancement allegations true; (3) the trial court erred in imposing an unauthorized sentence on count 1; and (4) the trial court erred in failing to advise defendant of his right to a jury trial on the gang enhancements and to take an appropriate waiver of that right. The People concede defendant’s first, third, and fourth issues, but contend substantial evidence supported the trial court’s finding on the gang enhancement. We agree the court erred in permitting conviction on both counts 2 and 3 and, therefore, reverse the conviction on count 3. Additionally, we agree the court failed to properly admonish and take defendant’s waiver of his right to a jury trial on the gang enhancements and, therefore, reverse those findings. Finally, we agree the court imposed an unauthorized sentence on count 1 and direct the superior court to correct the sentencing minute order. Defendant’s contention that the true finding on the gang enhancements was not supported by substantial evidence is rendered moot by our reversal of that finding on other grounds. In all other respects, the judgment is affirmed.
All further statutory references are to the Penal Code unless otherwise indicated.
I. FACTS AND PROCEDURAL HISTORY
Melissa Hull called the Indio Police Department to report an apparent burglary after she and the individual with whom she lived, Edward Prater, witnessed defendant and his accomplice, Homero Valle, dragging a trash can and a duffel bag full of items from the fairway behind their home to the wall surrounding their community. Police responded quickly thereafter, apprehending Valle standing on a corner not far from where they discovered the trash can and bag full of personal property. Another officer apprehended defendant on a road immediately outside the gated community. Both at the scene and at trial, Prater identified Valle and defendant as those responsible. Officers discovered a residence nearby which appeared to be broken into.
The owners of the residence testified that they recognized the objects found in the trash can and bag as their personal property. A fingerprint analyst matched a fingerprint on one of the purloined objects, a DVD player, to defendant. Neither the owners nor their renter gave defendant or Valle permission to enter the residence or take any personal property therefrom.
After the jury found defendant guilty on the substantive counts, the trial court conducted a bench trial on the gang enhancement allegations. The court found the allegations true, but recused itself from presiding over the bench trial of defendant’s prior strike allegation. Another trial judge found the prior strike allegation true. Thereafter, the court sentenced defendant to an aggregate term of 21 years’ incarceration, consisting of the midterm of eight years on count 1, doubled pursuant to the strike prior; an additional five years for the gang enhancement; the midterm of four years concurrent, stayed on the additional counts; and the midterm of three years on the gang enhancements for counts 2 and 3 concurrent, stayed.
As correctly contended by defendant and conceded by the People, the actual midterm for burglary is four, not eight, years. (§§ 459, 460, 461.)
II. DISCUSSION
A. Defendant Was Erroneously Convicted of Both the Theft and Receipt of the Same Property
Defendant maintains that the court erred in permitting his conviction for the separate offenses of petty theft with a prior (§ 666) and receiving stolen property (§ 496) because both offenses concerned the same stolen property. The People concede the issue. We agree.
Section 496, which criminalizes the receipt of stolen property, provides that “no person may be convicted both pursuant to this section and of the theft of the same property.” (§ 496, subd. (a).) “[Section 496] codifies a common law rule prohibiting separate convictions of the same person for stealing and receiving the same property.” (People v. Garza (2005) 35 Cal.4th 866, 871; People v. Allen (1999) 21 Cal.4th 846, 857; People v. Ceja (2007) 155 Cal.App.4th 1246, 1248.; People v. Recio (2007) 156 Cal.App.4th 719, 722.)
The remedy for the erroneous conviction of both receipt and theft of the same property has been the subject of two recent decisions from this district which have come to contrary conclusions. (People v. Ceja, supra, 155 Cal.App.4th at p. 1248; People v. Recio, supra, 156 Cal.App.4th at p. 726.) In Ceja, the court concluded that where a defendant has been wrongly convicted of both the theft and receipt of the same stolen property, the greater charge, i.e., the one charged as a felony, will stand and the lesser, the one charged as a misdemeanor, shall be reversed. (People v. Ceja, supra, at p. 1250.) It, therefore, reversed the defendant’s conviction for the theft charge because he had been charged and convicted of that offense as a misdemeanor. (Ibid.) It upheld the conviction for receiving stolen property because, while a wobbler, it had been charged, convicted, and sentenced as a felony. (Ibid.) In Recio, the court concluded that where a defendant is wrongly convicted of both theft of and receipt of the same stolen property, the charge of receiving stolen property must be reversed, regardless of whether the receipt charge is the greater offense or results in a greater sentence. (People v. Recio, supra, at pp. 722-726.) That court reversed the defendant’s conviction of receiving stolen property and directed the trial court to reinstate defendant’s conviction for petty theft. (Id. at p. 727.)
Here, there is no doubt that defendant’s convictions for theft and receipt concerned the same property. The evidence adduced below showed defendant participated in the theft and receipt solely of property taken from the burglarized residence. No evidence demonstrated that defendant received any stolen property separate and apart from that taken from the subject home. Moreover, both parties agree that the convictions concerned the same stolen property.
While certainly interesting, our intradistrict conflict on the subject has no repercussions in the current matter. Here, the People charged defendant with both petty theft with a prior (§ 666) and receiving stolen property (§ 496). Both offenses are wobblers. (§§ 496, subd. (a), 666.) Likewise, defendant was charged, convicted, and sentenced for both offenses as felonies. Both offenses are punishable by the same triad of potential incarceration. (§ 18.) Hence, there is no “lesser” offense per se. Both parties agree that the conviction for receipt of stolen property should be reversed. We agree and, therefore, reverse defendant’s conviction on count 3 for receiving stolen property. (§ 496.)
B. The Gang Enhancements Must be Reversed Because the Record is Devoid of a Proper Advisement to Defendant of His Right to Jury Trial or His Express Waiver of That Right
The right to a jury trial extends to a section 186.22, subdivision (b) gang enhancement allegation. (People v. Sengpadychith (2001) 26 Cal.4th 316, 324.) “A jury may be waived in a criminal cause by the consent of both parties expressed in open court by the defendant and the defendant’s counsel.” (Cal. Const., art. 1, § 16.) While a defendant’s counsel may waive certain rights on behalf of his or her client, those rights deemed fundamental, including the right to a jury trial, may not be waived by defendant’s counsel alone. (People v. Riel (2000) 22 Cal.4th 1153, 1196; In re Horton (1991) 54 Cal.3d 82, 95.) Rather, in waiving the right to a jury trial, “the criminal defendant must be admonished and the court must secure an express waiver.” (In re Horton, supra, at p. 95.) An express waiver of the right to a jury trial cannot be inferred from the acts of defendant or defendant’s counsel. (People v. Di Blasi (1961) 198 Cal.App.2d 215, 221-223; People v. Ernst (1994) 8 Cal.4th 441, 448.) A personal and express waiver is “the only method by which the constitutional right to jury trial may be waived in a criminal case.” (People v. Vera (1997) 15 Cal.4th 269, 278.) A denial of the right to a jury trial is structural error requiring reversal. (People v. Collins (2001) 26 Cal.4th 297, 311.)
Here, defense counsel initially moved to bifurcate determination of the gang enhancement allegations from the substantive offenses, but made no mention of whether he or defendant intended that proceeding to occur by court or jury trial. The court reserved ruling on the motion to permit the prosecution to submit additional authorities on the bifurcation issue. The next day, the court took an express waiver of defendant’s right to a jury trial on the issue of his prior strike conviction; however, it neither admonished defendant nor took an express waiver of defendant’s right to a jury trial on the gang enhancement allegations when it granted defendant’s motion for bifurcation. Indeed, the court acknowledged that the issue of whether to proceed on the gang enhancement allegations by court or jury trial remained to be determined by the parties. While defense counsel indicated he wished to have the issue bifurcated and determined by “court trial,” counsel’s statement cannot be accorded a valid waiver of defendant’s fundamental right to a jury trial. (People v. Di Blasi, supra, 198 Cal.App.2d at pp. 221-223; People v. Ernst, supra, 8 Cal.4th at p. 448.) Prior to final arguments and submission of the case to the jury, the prosecutor announced that both he and defense counsel would determine whether to proceed on the gang enhancement allegations by court or jury trial only after the jury returned its verdicts on the substantive offenses. After the jury returned guilty verdicts, the court and parties held proceedings in chambers, off the record. The court subsequently dismissed the jury and stated: “We still have the issue of the gang allegations . . . for [defendant]. [¶] [Defendant’s counsel has] indicated that—I had indicated to counsel that we would proceed with the trial on the gang allegations first, and [the prosecutor] waived the right to have the jury hear that on behalf of the People. And both defendants have waived the right to have that matter put forth before the jury.” Defendant’s counsel replied, “Right.” The People concede that the true findings on the gang enhancement allegations must be reversed because the record fails to demonstrate that defendant personally and expressly waived his right to a jury trial. We agree. Therefore, the gang enhancement allegations are reversed.
Because we reverse the true findings on the gang enhancement allegations on other grounds, we need not address defendant’s contentions that substantial evidence did not support the court’s determinations that Penn West was a criminal street gang; that Penn West’s primary activities included the commission of the statutorily enumerated crimes; that defendant committed the underlying offenses for the benefit of, at the direction of, or in association with any criminal street gang; that the substantive crimes were committed with the specific intent to promote, further, or assist in any criminal conduct by gang members; or that Officer Hamilton’s testimony constituted improper profile evidence.
C. Imposition of Sentence on Count 1 Must be Corrected to Reflect the Midterm of Four Years, Not Eight
On review, appellate courts may correct a legally unauthorized sentence. (People v. Smith (2001) 24 Cal.4th 849, 852; People v. Quintero (2006) 135 Cal.App.4th 1152, 1156, fn. 3.) A legally unauthorized sentence is one which “could not lawfully be imposed under any circumstance in the particular case.” (People v. Scott (1994) 9 Cal.4th 331, 354.) The sentence triad for a conviction of first degree burglary is two, four, or six years. (§ 461.)
Here, the court expressly indicated, twice, its intention of imposing the midterm on count 1. Nonetheless, the court stated the midterm for count 1 as eight, rather than four, years. This mistake is repeated in the sentencing minute order and abstract of judgment. This was clearly error on the part of the trial court because the midterm for first degree burglary is four, not eight, years. The People concede the error. Therefore, we direct the trial court to correct the sentencing minute order of April 6, 2007, and the abstract of judgment to reflect imposition of the midterm of four, rather than eight, years on count 1, doubled pursuant to the strike prior.
III. DISPOSITION
The judgment is affirmed in part, reversed in part, and remanded with directions. The judgment of conviction on count 3 for receiving stolen property is reversed. The true findings on the section 186.22, subdivision (b)(1)(A) gang enhancements are reversed. The trial court is directed to strike the enhancements and modify the sentence accordingly. The trial court is directed to correct the sentencing minute order of April 6, 2007, and the abstract of judgment to reflect imposition of the midterm of four, rather than eight, years on count 1, doubled pursuant to the strike prior. The trial court is directed to deliver a certified copy of the corrected minute order and abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: Ramirez P.J., Miller J.