1

Filed 12/5/13 P. v. Roberson CA1/2 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS 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 This opinion has not been certified for publication 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. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

FIRST APPELLATE DISTRICT 

DIVISION TWO 

THE PEOPLE, 

 Plaintiff and Respondent, 

v. 

OGES ROBERSON, 

 Defendant and Appellant. 

 A136135 

 (Marin County Super. Ct. 

 No. SC175203) 

 On April 11, 2012, two unidentified men were seen on video monitors committing 

a burglary at an Autodesk building in San Rafael. Police officers responded and saw a 

sedan with four men leaving the scene about 2:00 a.m. The car sped away and the police 

pursued, but lost sight of the car. At 3:30 a.m., a police officer observed a car turn the 

wrong way onto a one-way street and commenced a pursuit of the vehicle, which entered 

Highway 101 in the southbound lanes. During the pursuit, the car made a U-turn on the 

freeway, threatening a head-on collision with one of the pursuing police vehicles. The 

car went off the roadway into a muddy ditch. Oges Roberson, in muddy pants and shoes, 

was arrested nearby. Two other men, similarly muddy, were also apprehended. The car 

was a rental vehicle for which Roberson was an authorized driver. It contained items that 

had been taken from Autodesk, as well as some of Roberson’s personal papers. 

 Roberson was tried by a jury, which found him guilty of commercial burglary 

(Pen. Code, § 459),1

 receiving stolen property (§ 496, subd. (a)), and evasion of a peace 

 1

 Unless otherwise indicated, statutory references are to the Penal Code. 
2

officer with willful or wanton disregard for the safety of other persons or property (Veh. 

Code, § 2800.2, subd. (a)). 

 Roberson contends that the People presented insufficient evidence to sustain his 

conviction on any of these counts. He also argues that the court erred in failing to 

instruct the jury on the lesser included offense of misdemeanor evasion of a peace officer 

(without willful or wanton disregard for safety). Finally, he contends, and the People 

concede, that the court erred in the sentence that it imposed, by making the sentences on 

two of the charges, which were to be served concurrently, consecutive to the sentence on 

another charge, contrary to section 654. 

 We conclude that substantial evidence supported Roberson’s conviction on the 

commercial burglary and receiving stolen property counts. However, we conclude that 

substantial evidence did not support a finding of guilt on the charge of evasion with 

willful or wanton disregard for safety, which was based on the theory that it was the 

natural and probable consequence of aiding and abetting the burglary or receiving stolen 

property. Instead, we find that the evidence supports only a finding of guilt for the lesser 

included offense of misdemeanor evasion and we amend the judgment to reflect that 

conclusion and remand for resentencing. 

 Finally, we agree with the parties that the trial court erred in sentencing Roberson. 

On remand for resentencing, the trial court can ensure that the error does not recur. 

BACKGROUND 

I. Procedural Background 

 The People charged Roberson in a first amended information, filed on April 16, 

2012, with the following offenses: (1) felony assault with a deadly weapon (a motor 

vehicle) upon a peace officer (§ 245), subd. (c)); (2) felony evading a peace officer with 

willful or wanton disregard for safety (Veh. Code, § 2800.2, subd. (a)); (3) felony 

commercial burglary (§ 459); (4) felony receiving stolen property (§ 496, sub. (a)); and 

(5) misdemeanor hit and run driving (Veh. Code, § 20002, subd. (a)). Before trial, count 

five was dismissed on the People’s motion in the interest of justice. 
3

 The information also alleged that Roberson had two prior felony strike convictions 

19 years earlier for robbery (§ 211) and assault with a deadly weapon (§ 245, subd. 

(a)(2)). In addition, the information alleged that Roberson was ineligible for probation 

because: (1) he used a deadly weapon (a car) in count one (§ 1203, subd. (e)(2)); and (2) 

he had six prior felony convictions (§ 1203, subd. (e)(4)). Finally, the information 

alleged that for three of his prior felony convictions, Roberson had not remained free of 

prison custody for five years between prison terms, rendering him eligible for sentencing 

enhancements under section 667.5, subdivision (b). 

 A trial by jury commenced on April 13, 2012. On April 20, 2012, the jury found 

Roberson not guilty on count one and guilty on counts two, three, and four. Trial on the 

prior convictions was bifurcated and Roberson waived his right to a jury trial for that 

phase of trial. On April 24, 2012, the trial court found to be true: four of the six charged 

prior felony convictions, pursuant to section 1203, subdivision (e)(4); one prior strike, 

pursuant to section 1170.12; and Roberson’s three prior prison terms, pursuant to section 

667.5, subdivision (b). 

 On June 13, 2012, the trial court sentenced Roberson to prison for a term of six 

years four months. The term was comprised of the mid-term of two years for count 2, 

doubled to four years as a result of the prior strike; a four-year sentence for count 3, with 

32 months stayed, to be served consecutively; a four-year sentence for count 4, to be 

served concurrently with the sentence for count 3; and a consecutive one-year term, 

pursuant to section 667.5, subdivision (b). 

 Roberson filed a timely notice of appeal on July 12, 2012. 

II. Factual Background

 On April 11, 2011, about 1:45 a.m., Robbie Munoz was observing security video 

monitors at Autodesk in San Rafael. He saw two African-American men in black 

hoodies and pants going up and down a stairway area carrying electronic equipment. 

Munoz could not make out the facial features of either man.2

 Munoz called the police 

 2

 The security system provided only a live feed and did not record. 
4

department and Ramon Cabrera, a security employee of Autodesk, went to the area to 

investigate, discovering a broken window that appeared to be the point of entry. Cabrera 

found electronic equipment that had been moved and damaged inside the building; other 

items, including a laptop computer and a hat, were on the ground outside. Autodesk 

suffered about $10,000 in property damage and loss. 

 The first two police officers to respond arrived close to 2:00 a.m. in separate patrol 

cars. Each saw a newer model dark sedan of undetermined make and model driving 

away from the area. Officer Kevin MacDougald slowed down, turned his spotlight on the 

car, and saw four African-American men inside. The car departed “at a very high rate of 

speed.” The other officer, Ronda Reese, saw a driver and one or more passengers in the 

car, but could not identify the occupants. Both officers activated their sirens and 

emergency lights and gave chase, but the car did not stop and they soon lost sight of it. 

 About 3:30 a.m., MacDougald, on routine patrol, saw a car turn the wrong way 

onto a one-way street in downtown San Rafael. He activated his emergency lights and 

siren and followed the car, which accelerated away from him onto the freeway, heading 

southbound on Highway 101 “at a high rate of speed.” They reached speeds of over 90 

miles per hour. The car made a U-turn and began traveling back, in the wrong direction, 

in the fast lane of the freeway. MacDougald immediately stopped and advised other 

officers of the events. 

 Officer Justin Graham had joined the car chase and was driving his patrol car, with 

emergency lights and siren activated, southbound on the freeway when he saw the car’s 

headlights coming towards him. He began to do “a left to right zigzag pattern” for “a 

couple of seconds, several seconds”—actions that the oncoming driver appeared to 

mimic. At the last moment, Graham turned hard right onto the shoulder to avoid a headon collision, hitting the embankment with his push bumper. Graham stated that he had 

slowed to about 10 to 15 miles per hour and the oncoming car was about one car length 

away when he made his final maneuver. 

 MacDougald, in the meantime, had returned to the northbound freeway and, as he 

crested a hill, saw “headlights bouncing” off the roadway. MacDougald went to the 
5

scene and found an abandoned dark blue Volkswagen Jetta, mired in a ditch, tilted on its 

passenger side—the same vehicle he had been chasing. The area where the Jetta came to 

rest was wet and muddy. 

 Reese arrived at the scene shortly thereafter, and found the Jetta unoccupied but 

with the engine still running. Reese said the Jetta was “very similar” to the car she tried 

to follow from the Autodesk burglary earlier that morning. She found a monitor on the 

back seat, two laptop computers under a leather jacket on the back seat, and a router on 

the front seat. Reese also found a vodka bottle, a black knit cap, a cell phone, and a 

rental agreement from Enterprise Rent-A-Car. In the trunk she found papers including a 

vehicle title, a cell phone bill, hospital records, a parking violation notice, and a printout 

from a social security office, all bearing Roberson’s name, and indicating that he resided 

in Oakland. MacDougald noted that the driver’s seat was pushed all the way to the rear 

and reclined. 

 Meanwhile, after avoiding a collision with the oncoming car, Graham exited the 

freeway, reentered in the northbound lanes, and exited again after hearing MacDougald’s 

report about the Jetta. Graham observed a “heavy-set” male on a nearby local street 

walking from the direction of the abandoned Jetta. The man had stopped on the center 

median and his clothing appeared to be wet and had “landscaping debris.” Graham 

headed the man off with his vehicle and directed the man, whom he identified as 

Roberson, to lie on the ground. Roberson complied. MacDougald and another officer 

assisted Graham in placing Roberson in custody. Roberson is six feet, two inches tall and 

weighs 285 pounds. 

 At 7:11 a.m., Officer Henry Tirre responded to a report that two men had gone to a 

residence in San Rafael, where they stated that their car had broken down and asked the 

residents to call a taxi. The residents, located about two blocks from the site where the 

Jetta left the roadway, were suspicious and called the police. The men boarded a taxi at a 

nearby store, but Tirre stopped the taxi and detained the men, identified as Morgan Saint 

Thomas and Gregorio Yarborough. Both men had wet, muddy pants. Yarborough was 
6

six feet, one inch tall and weighed 180 pounds. Saint Thomas was five feet, eleven 

inches tall and weighed 160 pounds. 

 An Autodesk manager identified the laptops and router located in the Jetta as 

belonging to Autodesk. 

 The Jetta had been rented to Michael Benson,3 with Roberson listed as a secondary 

driver. Before adding a secondary driver, Enterprise requires that the person present a 

driver’s license to confirm his or her identity. 

 The police obtained only a few usable fingerprints from Autodesk, the Jetta, and 

the property found in the Jetta. There were eight impressions matched to Saint Thomas. 

No prints were matched to Roberson, Benson, or Yarborough. 

 The defense presented the testimony of accident investigation and reconstruction 

expert Vernell Hance, who testified that, based on his recreation of the seat position he 

observed in photographs of the Jetta, the seat was not in the full rearward position. From 

the position of the seat, a person between the heights of five feet, ten inches and six feet, 

two inches could have driven the Jetta. Hance also testified that the Jetta could not have 

been nearly as close to Graham’s car as the officer indicated in his testimony because, at 

such a close distance, a collision between the two vehicles would have been unavoidable. 

DISCUSSION 

 Roberson contends that the People presented insufficient evidence supporting his 

conviction for any of the charges against him. He also alleges instructional error and 

sentencing errors on the part of the court. 

I. Legal Standard

 “ ‘The proper test for determining a claim of insufficiency of evidence in a 

criminal case is whether, on the entire record, a rational trier of fact could find the 

defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the 

evidence in the light most favorable to the People and must presume in support of the 

judgment the existence of every fact the trier could reasonably deduce from the evidence. 

 3

 The parties stipulated that Benson had a lengthy history of arrests and 

convictions, largely comprised of theft offenses, and including many burglaries. 
7

[Citation.] [¶] Although we must ensure the evidence is reasonable, credible, and of 

solid value, nonetheless it is the exclusive province of the trial judge or jury to determine 

the credibility of a witness and the truth or falsity of the facts on which that determination 

depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must 

accord due deference to the trier of fact and not substitute our evaluation of a witness’s 

credibility for that of the fact finder. [Citations.]’ ” (People v. Ochoa (1993) 6 Cal.4th 

1199, 1206, quoting People v. Jones (1990) 51 Cal.3d 294, 314.) 

II. Burglary and Evading with Willful or Wanton Disregard for Safety

 The direct evidence concerning the burglary at Autodesk, the initial car chase from 

the scene of the burglary, and the later car chase, with the Jetta driven the wrong way on 

Highway 101 and threatening a head-on collision with a police vehicle, is undisputed. 

The question before us is whether a trier of fact could rationally draw inferences from 

that direct evidence that would establish Roberson’s criminal liability for the counts of 

commercial burglary and evading a peace officer with reckless driving. 

A. Liability as a Principal

 The security officer at Autodesk saw two African-American men inside the 

burglarized building, but was unable to further describe the men. One police officer saw 

four African-American men inside the Jetta as it left the scene of the burglary. This is not 

substantial evidence that Roberson, if he was present, was one of the men who entered 

the Autodesk building. 

 There is no direct evidence that Roberson was the driver of the rented Jetta at any 

point during the time at issue. The officer who saw four men in the Jetta when it left 

Autodesk offered no identification or distinguishing characteristics of the driver. 

Following the car chase on Highway 101, a jury could reasonably conclude that because 

they were found nearby in muddy clothing, Roberson, Yarborough, and Saint Thomas, at 

least, had been present in the Jetta during the chase, but no evidence, beyond the fact that 

Roberson was listed as a secondary driver on the rental agreement, indicates that 

Roberson, rather than one of the other occupants, had been driving. During sentencing, 
8

the court stated: “I don’t think the jurors know who the driver of the car was. I don’t 

think the evidence was conclusive enough . . . .” 

 During deliberations, the jury queried the court: “Count 1 [¶] Does he have to be 

the driver to be guilty?” In response, the court told the jury that their question was 

answered in the instructions they had been given and pointed out specific instructions for 

their review. The jury ultimately acquitted Roberson on count one (assault on a peace 

officer). Because the evidence was overwhelming that whoever drove the Jetta did 

commit an assault on a peace officer, this is a strong indication that the jury was not able 

to determine from the evidence that Roberson was the driver of the Jetta. 

 Finally, the People concede that it is unlikely that the jury could rationally have 

concluded that Roberson was a principal in the burglary: “[The People acknowledge] . . . 

that because there were likely more than two men in the Jetta but only two men entered 

Autodesk and the evidence is unclear as to whether [Roberson] was one of them, 

[Roberson’s] criminal liability was likely that of an aider and abettor.” Further, the 

People acknowledge the trial court’s observations on the evidence concerning whether 

Roberson was the driver and concede that Roberson’s “criminal liability [for the count of 

evading with willful or wanton disregard for safety] was predicated on the violation of 

Vehicle Code section 2800.2 being a natural and probable consequence of the burglary.” 

 We conclude that there was insufficient evidence to establish that Roberson was 

criminally liable as a principal on the counts of burglary and evading with willful or 

wanton disregard for safety. 

B. Aider and Abettor Liability for the Burglary

 “Aider-abettor liability exists when a person who does not directly commit a crime 

assists the direct perpetrator by aid or encouragement, with knowledge of the 

perpetrator’s criminal intent and with the intent to help him carry out the offense.” 

(People v. Miranda (2011) 192 Cal.App.4th 398, 407.) “Presence at the scene of a crime, 

alone, is insufficient to establish aiding and abetting liability.” (People v. Em (2009) 171 

Cal.App.4th 964, 970.) However, “among the factors which may be considered in 

making the determination of aiding and abetting are: presence at the scene of the crime, 
9

companionship, and conduct before and after the offense.” (In re Lynette G. (1976) 54 

Cal.App.3d 1087, 1094; accord, People v. Campbell (1994) 25 Cal.App.4th 402, 409.) 

 Roberson was found near the Jetta, which contained personal papers belonging to 

him, an hour and a half after the burglary at Autodesk. This is substantial evidence that 

Roberson had been in the car at the time the Jetta left the Highway 101 roadway. 

Because the events at issue took place in the middle of the night, between 2:00 a.m. and 

3:30 a.m., and because Roberson resided in Oakland and not in San Rafael, the jury could 

reasonably conclude that Roberson was already a passenger in the Jetta when the 

burglary was committed. Thus, substantial evidence supports Roberson’s presence in the 

Jetta at the time of the burglary. 

 Even if Roberson was not driving the vehicle during the period at issue, there was 

substantial evidence that Roberson had an ongoing association with the Jetta. He was 

named as an authorized driver on the rental agreement for the vehicle. The presence of 

his personal papers in the trunk of the car, including a vehicle title, were, as the 

prosecution argued to the jury, of a nature unlikely to be left “in the back of a vehicle that 

you are just kind of out in for the evening.” Even though Benson was the person who 

actually rented the car, the jury could reasonably conclude that Roberson’s association 

with the vehicle was substantial enough that he supplied the vehicle that was used in the 

commission of the burglary, or at least acquiesced in its use. Further, the jury could 

reasonably conclude that Roberson was aware of the criminal intent of the principals in 

the burglary, there being no reasonable innocent scenario in which the car would be at the 

Autodesk building in the middle of the night. 

 We conclude that the evidence was sufficient for the jury to find that Roberson 

had knowledge of the intent to burglarize Autodesk and that he intended to, and did, aid 

and abet that burglary by, at least, acquiescing in the use of the vehicle that was used to 

transport the principals of the intended offense to Autodesk and to transport them and the 

stolen items from Autodesk. 
10

C. Violation of Vehicle Code Section 2800.2 as a Natural and Probable Consequence

1. Sufficiency of the Evidence

 “A person who knowingly aids and abets criminal conduct is guilty of not only the 

intended crime [target offense] but also of any other crime the perpetrator actually 

commits [nontarget offense] that is a natural and probable consequence of the intended 

crime. The latter question is not whether the aider and abettor actually foresaw the 

additional crime, but whether, judged objectively, it was reasonably foreseeable.” 

(People v. Mendoza (1998) 18 Cal.4th 1114, 1133.) “Liability under the natural and 

probable consequences doctrine ‘is measured by whether a reasonable person in the 

defendant’s position would have or should have known that the charged offense was a 

reasonably foreseeable consequence of the act aided and abetted.’ ” (People v. Medina

(2009) 46 Cal.4th 913, 920.) “In criminal law, as in tort law, to be reasonably 

foreseeable ‘[t]he consequence need not have been a strong probability; a possible 

consequence which might reasonably have been contemplated is enough . . . .’ ” (People 

v. Nguyen (1993) 21 Cal.App.4th 518, 535, quoting 1 Witkin & Epstein, Cal. Criminal 

Law (2d ed. 1988) § 132, p. 150.) “A reasonably foreseeable consequence is to be 

evaluated under all the factual circumstances of the individual case [citation] and is a 

factual issue to be resolved by the jury.” (Medina, at p. 920.) 

 We believe that a rational jury could readily find that when a vehicle is used in the 

commission of a felony, it is reasonably foreseeable that the driver of the vehicle might 

attempt to evade police officers who pursue the vehicle. The crucial question we face is 

whether, having found Roberson to be an aider and abettor of the commercial burglary 

and receipt of stolen property, the factual circumstances support a conclusion by the jury 

that it was also reasonably foreseeable that, while evading the police, the vehicle would 

be driven “in a willful or wanton disregard for the safety of persons or property.” (Veh. 

Code, § 2800.2, subd. (a).) The parties do not offer, nor have we found, prior cases in 

which a violation of Vehicle Code section 2800.2 has been proposed as a natural and 

probable consequence of another felony. 
11

 We find the People’s argument that a violation of Vehicle Code section 2800.2 

was foreseeable to be unpersuasive. The People write: “To be guilty of a violation of 

[Vehicle Code] section 2800.2, the driver’s conduct in taking high speed evasive action 

on both local streets and the freeway was sufficient. It did not require the potentially 

deadly act of driving the wrong way on a freeway. [Citation.] After one reckless escape 

from pursuing police officers following the commission of a burglary, it was reasonably 

foreseeable that the driver of the vehicle, when police later attempted to stop the vehicle, 

would again attempt to elude the pursuing officers while driving with a ‘wanton or willful 

disregard for the safety of persons or property.’ ” At trial, the prosecutor argued 

similarly. 

 The People seem to be arguing that a violation of Vehicle Code section 2800.2 

during the second car chase, in which the Jetta drove the wrong way on Highway 101, 

with obvious wanton disregard for the safety of others, was foreseeable to Roberson 

because the driver violated Vehicle Code section 2800.2 during the initial car chase, 

immediately following the burglary at Autodesk. However, the only evidence concerning 

the driving during the initial pursuit was that it occurred at a high rate of speed. The 

People provide no authority for the proposition that breaking the speed limit, while 

evading police officers, without other facts, is sufficient to constitute a violation of 

Vehicle Code section 2800.2. 4

 Thus, we are unable to conclude that the evasion with 

willful or wanton disregard for safety that occurred during the later pursuit became 

foreseeable to Roberson after the initial pursuit. 

 4

 Vehicle Code section 2800.2, subdivision (b), provides: “For purposes of this 

section, a willful or wanton disregard for the safety of persons or property includes, but is 

not limited to, driving while fleeing or attempting to elude a pursuing peace officer 

during which time either three or more violations that are assigned a traffic violation 

point count under Section 12810 occur, or damage to property occurs.” Because simple 

speeding, without other facts to show that the speeding demonstrated a willful or wanton 

disregard for the safety of others, would constitute only one of the three violations 

required by Vehicle Code section 2800.2, subdivision (b), we would be unable to find 

that substantial evidence supports a conclusion that a violation of Vehicle Code section 

2800.2 occurred during the initial pursuit from Autodesk. 
12

 The People cite to no circumstances of this case that point to the foreseeability of 

evasion with willful or wanton disregard for safety at the time when Roberson aided and 

abetted the burglary, or during the continuing crime of receiving stolen property. We 

conclude that insufficient evidence supported a finding by the jury that Roberson was 

guilty of a violation of Vehicle Code section 2800.2 by operation of the doctrine of 

natural and probable consequences. 

2. Instructional Error

 Roberson contends that the court erred by failing to instruct the jury on the lesser 

included offense of misdemeanor evasion without willful or wanton disregard for safety. 

(See Veh. Code, § 2800.1; People v. Springfield (1993) 13 Cal.App.4th 1674, 1679-

1680.) The People oppose Roberson’s contention, arguing that because there was no 

dispute that the driver of the Jetta showed a willful or wanton disregard for safety, there 

was “ ‘no evidence that the offense was less than that charged,’ ” and, thus, no duty on 

the part of the trial court to instruct on a lesser included offense. 

We disagree with the People’s position. When a jury considers liability under the 

natural and probable consequences doctrine, it must determine not only that someone 

whom the defendant aided and abetted committed the non-target offense, but also that the 

non-target offense was foreseeable to the aider-abettor. This involves determining that 

each of the elements of the non-target offense was foreseeable and, obviously, the facts 

may be such that the jury could reach different conclusions about different elements. 

When a lesser included offense is contained within the non-target offense, the jury might 

conclude that the elements of the lesser included offense were foreseeable, but not one or 

more of the additional elements required for the non-target offense. 

 The trial court has a duty to instruct on lesser included offenses when the evidence 

raises a question as to whether all the elements of the charged offense were present. 

(People v. Smith (2013) 57 Cal.4th 232, 239.) Even though it may be clear, as it is here, 

that all the elements of the charged offense were present with regard to the direct 

perpetrator, the evidence may raise a question as to whether all the elements were 

foreseeable to the aider-abettor. In that case, the trial court has a duty to instruct the jury 
13

on the lesser included offense and to explain what the jury’s choices are when 

considering application of the natural and probable consequences doctrine. (See People 

v. Huynh (2002) 99 Cal.App.4th 662, 681 [concluding that because target offenses of 

conspiracy to commit an assault and a battery could be misdemeanors, the trial court 

should have instructed sua sponte on involuntary manslaughter, a lesser included offense 

of murder].) 

 Because we have already determined that insufficient evidence established 

foreseeability that the evasion in this case would be conducted with willful or wanton 

disregard for safety, we conclude that the trial court erred in not instructing the jury on 

the lesser included offense of misdemeanor evasion, a violation of Vehicle Code section 

2800.1. 

3. Remedy

 Evasion of the police was foreseeable when Roberson aided and abetted the 

burglary and received stolen property, but insufficient evidence established foreseeability 

that the evasion would be conducted with willful or wanton disregard for safety. 

Although the evidence did not establish that Roberson was liable for a violation of 

Vehicle Code section 2800.2, there was sufficient evidence that Roberson was liable for a 

violation of Vehicle Code section 2800.1 (misdemeanor evasion of a peace officer), a 

lesser included offense of Vehicle Code section 2800.2. Accordingly, as authorized by 

Penal Code section 1181, subdivision (6), we modify the judgment to show a conviction 

for a violation of Vehicle Code section 2800.1, rather than for a violation of Vehicle 

Code section 2800.2. The case is remanded to the trial court for resentencing in 

accordance with the amended judgment. 

III. Receiving Stolen Property 

 “A conviction for receiving stolen property cannot withstand appellate scrutiny 

unless substantial evidence was presented to the trier of fact that (1) the property was 

received, concealed, or withheld by the accused; (2) such property had been obtained by 

theft or extortion; and (3) the accused knew that the property had been so obtained.” 

(People v. Kunkin (1973) 9 Cal.3d 245, 249.) “While it has been stated that the mere 
14

presence near the stolen property and/or access thereto by itself is not sufficient to sustain 

a conviction for receiving stolen property and that in order to convict the defendant 

dominion and control must be shown [citations], it is well settled that the possession of 

the stolen item need not be exclusive and that possession may be established by both 

direct and circumstantial evidence and reasonable inferences drawn from such evidence.” 

(People v. Johnson (1980) 104 Cal.App.3d 598, 606.) While dominion and control 

cannot be inferred from mere presence or access, “the necessary additional circumstances 

may, in some fact contexts, be rather slight.” (People v. Zyduck (1969) 270 Cal.App.2d 

334, 336.) 

 As we discussed above, substantial evidence supported a finding that Roberson 

aided and abetted the burglary at Autodesk and an inference that he was present during 

the burglary and was in the Jetta when it left the Highway 101 roadway. It is undisputed 

that items stolen from Autodesk were present in the Jetta. Thus, the jury had before it 

substantial evidence that the property in question had been obtained by theft and that 

Roberson was aware of that fact. Roberson disputes that substantial evidence supported 

the first element of the offense: “No evidence established that [Roberson] himself 

handled, possessed, or knowingly intended to make away with the stolen property. . . . 

His mere vicinity to the stolen property . . . was insufficient . . . .” 

 What Roberson overlooks in his argument is the same factor that supports a 

finding that he aided and abetted the burglary—his connection to the automobile was 

substantial enough for the jury to conclude that he had some measure of control in how it 

was used, whether or not that control was exclusive and whether or not he was driving. 

The jury could reasonably conclude that acquiescing in the transportation of stolen 

property in an automobile over which he had a measure of control demonstrated the 

requisite dominion and control over the stolen property. 

 We conclude that substantial evidence supported Roberson’s conviction on the 

charge of receiving stolen property. 
15

IV. Sentencing Error

 Roberson also contends that it was error for the trial court to impose a sentence for 

the charges of burglary and receiving stolen property that was consecutive to the sentence 

for the charge of evading with willful or wanton disregard for safety. He contends that 

the sentences for the burglary and possession of stolen property counts should have been 

stayed pursuant to section 654. Without agreeing with what they characterize as 

Roberson’s “broad reasoning,” the People “agree with his conclusion.” 

 Section 654, subdivision (a), provides, in pertinent part: “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.” 

 In People v. Bradley (2003) 111 Cal.App.4th 765, 769-770 (Bradley), the court 

held that when guilt on one offense is premised solely on it being the natural and 

probable consequence of another offense, the defendant may lack the independent 

objective or intent necessary to impose consecutive sentences on the two offenses, and 

section 654 requires that the lesser of the two sentences be stayed. The People “find 

Bradley to be indistinguishable and concede that the matter should be remanded for 

resentencing.” 

 Because we have reduced the conviction for violation of Vehicle Code section 

2800.2 to a conviction for a misdemeanor violation of Vehicle Code section 2800.1, a 

remand for resentencing is already part of our disposition. On remand, the burglary or 

receiving stolen goods count will provide the longest potential term of imprisonment. 

We agree with the parties that Bradley applies in this case and, on resentencing, would 

prohibit the imposition of a consecutive sentence for the violation of Vehicle Code 

section 2800.1. 
16

DISPOSITION 

The judgment is amended to replace the conviction for a violation of Vehicle Code 

section 2800.2 with a conviction for a violation of Vehicle Code section 2800.1. In all 

other respects, the judgment is affirmed. The case is remanded to the trial court for 

resentencing in accord with this opinion. 

 _________________________ 

 Brick, J.* 

We concur: 

_________________________ 

Haerle, Acting P.J. 

_________________________ 

Richman, J. 

 * Judge of the Alameda County Superior Court, assigned by the Chief Justice 

pursuant to article VI, section 6 of the California Constitution.