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Name: People v. Calistro
Case #: F070176
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 06/06/2017
Summary

Defendant’s nontheft conviction under Vehicle Code section 10851, subdivision (a) did not bar his conviction for receiving stolen property inside the car. Five hours after a car was reported stolen, police found defendant sitting inside the stolen car at a nearby gas station, with the owner’s wallet and cell phone in the passenger seat. Defendant was convicted of unlawfully driving or taking a vehicle (Veh. Code, § 10851, subd. (a)) and receiving stolen property (the credit cards inside the vehicle) (Pen. Code, § 496, subd. (a)). On appeal, defendant challenged his conviction for receiving the stolen credit cards, arguing that under the single larceny doctrine these items were part of the vehicle theft. Held: Affirmed. Under the single larceny doctrine, when a defendant steals multiple items during the course of a single act or indivisible transaction involving a single victim, he commits only one theft, notwithstanding the number of items he steals. Section 10851, subdivision (a) prohibits unlawfully driving or taking a vehicle. If a defendant is convicted of taking a vehicle, it is a theft offense. But if the conviction is for driving a vehicle (posttheft driving), it is not a theft offense. Relying on People v. Garza (2005) 35 Cal.4th 866, the Court of Appeal concluded that the evidence in this case showed two separate section 10851, subdivision (a) violations (a taking and a driving) and that defendant’s conviction may be construed as a driving conviction. As a result, defendant’s nontheft conviction under section 10851 did not bar his conviction for receiving the property inside that car under the single larceny doctrine.

Trial court erroneously instructed the jury that a section 10851, subdivision (a) conviction for taking or driving a vehicle would bar a conviction for receiving the vehicle as stolen property. Defendant was also charged with receiving a stolen vehicle (Pen. Code, § 496, subd. (a)). The jury returned a blank verdict form for this count because the trial court instructed the jury that a conviction under section 10851 for taking or driving a vehicle would bar a conviction for receiving the stolen vehicle (see CALCRIM No. 3516). This instruction was based on the taking and receiving doctrine, which is the principle that a defendant cannot be convicted of both taking and receiving the same property. However, the trial court’s version of the instruction in this case was error. “[A] Vehicle Code section 10851(a) offense is not necessarily a theft offense, and only if it is a theft offense does it bar a conviction for receiving the same vehicle as stolen property. If it is a driving offense, rather than a taking (theft) offense, it does not bar a conviction for receiving the same vehicle as stolen property.” The instructions should have informed the jury that only a conviction for taking a vehicle would bar a conviction for receiving it as stolen property. The Court of Appeal noted that CALJIC No. 17.04, which was not given in this case, correctly reflects the law. Defendant’s nontheft conviction under section 10851, subdivision (a) did not bar a conviction for receiving the car as stolen property under section 496, subdivision (a). The jury could have convicted defendant of this offense but was precluded from doing so by the erroneous instruction.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/F070176.PDF