1 Filed 12/5/13 P. v. Roberson CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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 un identified men were seen on video monitors committing a burglary at an Autodesk building in San Ra fael. Police officers responded and saw a sedan with four men leaving th e 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, similarl y muddy, were also apprehended. The car was a rental vehicle for which Roberson was an authorized driv er. 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, statutor y references are to the Penal Code.2 officer with willful or wanton disregard for th e safety of other persons or property (Veh. Code, § 2800.2, subd. (a)). Roberson contends that the People presen ted 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 th e lesser included offense of misdem eanor evasion of a peace officer (without willful or wanton disregard for safe ty). Finally, he contends, and the People concede, that the court erred in the senten ce 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 prop erty counts. However, we conclude that substantial evidence did not support a findi ng of guilt on the charge of evasion with willful or wanton disregard for safety, wh ich was based on the theory that it was the natural and probable consequen ce 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 th e 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 Robers on in a first amended info rmation, filed on April 16, 2012, with the fo llowing offenses: (1) felony assau lt 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 (V eh. Code, § 2800.2, subd. (a)); (3) felony commercial burglary (§ 459); (4) felony receivin g 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 moti on in the interest of justice.3 The information also alleged that Robers on had two prior fel ony strike convictions 19 years earlier for robbery (§ 211) and assa ult with a deadly we apon (§ 245, subd. (a)(2)). In addition, the information allege d 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 (§ 12 03, subd. (e)(4)). Fina lly, 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 Apr il 20, 2012, the jury found Roberson not guilty on count on e and guilty on counts two, th ree, and four. Trial on the prior convictions was bifurcated and Roberson waived his right to a jury tr ial for that phase of trial. On April 24, 2012, the trial co urt 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; an d Roberson’s three prior prison terms, pursuant to section 667.5, subdivision (b). On June 13, 2012, the trial court senten ced 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 resu lt of the prior strike; a four-y ear sentence for count 3, with 32 months stayed, to be served consecutively; a four-year se ntence 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 wa s observing security video monitors at Autodesk in Sa n Rafael. He saw two African-American men in black hoodies and pants going up and down a stairw ay area carrying electronic equipment. Munoz could not make out the fa cial 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 em ployee 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 mo ved and damaged inside the building; other items, including a laptop computer and a ha t, were on the ground outside. Autodesk suffered about $10,000 in prop erty damage and loss. The first two police officers to respond arri ved 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 routin e patrol, saw a car turn the wrong way onto a one-way street in downtown San Rafa el. 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 ba ck, in the wrong direction, in the fast lane of the freeway. MacDo ugald immediately stop ped 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, southbou nd 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”—acti ons that the oncoming driver appeared to mimic. At the last moment, Gr aham turned hard ri ght onto the shoulderto avoid a headon collision, hitting the embankmen t with his push bumper. Graham stated that he had slowed to about 10 to 15 miles per hour an d 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” o ff the roadway. MacDougald went to the5 scene and found an aban doned dark blue Volk swagen 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 ther eafter, 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 bu rglary earlier that morning. She found a monitor on the back seat, two laptop computers under a leat her 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 Enterpri se 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 driv er’s seat was pushed all the way to the rear and reclined. Meanwhile, after avoiding a collision w ith the oncoming car, Graham exited the freeway, reentered in the nort hbound lanes, and exited agai n 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 we t and had “landscaping debris.” Graham headed the man off with his vehicle and di rected 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 repo rt that two men had gone to a residence in San Rafael, where they stated th at their car had broken down and asked the residents to call a taxi. The residents, locat ed about two blocks fro m the site where the Jetta left the roadway, were suspicious and ca lled the police. The men boarded a taxi at a nearby store, but Tirre stopped the taxi and detained the men, iden tified as Morgan Saint Thomas and Gregorio Yarborough. Both me n had wet, muddy pants. Yarborough was6 six feet, one inch tall and weighed 180 pounds . Saint Thomas was five feet, eleven inches tall and weighed 160 pounds. An Autodesk manager iden tified 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, En terprise requires that the person present a driver’s license to confir m his or her identity. The police obtained only a few usable fi ngerprints from Autodesk, the Jetta, and the property found in the Jetta. There were eight impressions matched to Saint Thomas. No prints were matched to Robe rson, Benson, or Yarborough. The defense presented the testimony of ac cident investigati on and reconstruction expert Vernell Hance, who testified that, ba sed on his recreation of the seat position he observed in photographs of the Jetta, the seat was not in the full rear ward position. From the position of the seat, a person between the heig hts 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 tw o vehicles would have been unavoidable. DISCUSSION Roberson contends that the People pres ented insufficient evidence supporting his conviction for any of the charge s against him. He also a lleges instructional error and sentencing errors on the part of the court.
I. Legal Standard “ ‘The proper test for determining a cl aim of insufficiency of evidence in a criminal case is whether, on the entire reco rd, a rational trier of fact could find the defendant guilty beyond a reas onable doubt. [Citations.] On appeal, we must view the evidence in the light most fa vorable to the People and must presume in support of the judgment the existence of ever y 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 o ffenses, and including many burglaries.7 [Citation.] [¶] Although we must ensure th e evidence is reasonabl e, credible, and of solid value, nonetheless it is the exclusive provi nce of the trial judge or jury to determine the credibility of a witness and the truth or fa lsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by su bstantial evidence, we must accord due deference to the trier of fact and not substitu te our evaluation of a witness’s credibility for that of the fa ct 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 concerni ng the burglary at Autode sk, the initial car chase from the scene of the burglary, and the later car ch ase, with the Jetta dr iven the wrong way on Highway 101 and threatening a head-on collisi on 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 Robe rson’s criminal liability for the counts of commercial burglary and evading a pea ce officer with reckless driving. A. Liability as a Principal The security officer at Autodesk sa w two African-American men inside the burglarized building, but was un able 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 wa s 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 dis tinguishing characteristic s of the driver. Following the car chase on Highway 101, a ju ry could reasonably conclude that because they were found nearby in muddy clothing, Roberson, Yar borough, 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 occupa nts, had been driving. During sentencing,8 the court stated: “I don’t think the jurors kn ow who the driver of the car was. I don’t think the evidence was conclu sive 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 ultim ately acquitted Roberson on count one (assault on a peace officer). Because the eviden ce was overwhelming that wh oever drove the Jetta did commit an assault on a peace offi cer, this is a strong indication that the jury was not able to determine from the evid ence 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 Je tta 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 observa tions on the evidence concerning whether Roberson was the driver and concede that R oberson’s “criminal liab ility [for the count of evading with willful or wanton disregard for safety] was pr edicated on the violation of Vehicle Code section 2800.2 being a natural a nd probable consequence of the burglary.” We conclude that there was insufficient evidence to establish that Roberson was criminally liable as a princi pal on the counts of burglary and evading with willful or wanton disregard for safety.
B. Aider and Abettor Liab ility for the Burglary “Aider-abettor liability exists when a pe rson who does not dir ectly commit a crime assists the direct perpetrator by aid or encouragement, with knowledge of the perpetrator’s criminal intent and with the in tent 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 establis h 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 aidi ng and abetting are: presence at the scene of the crime,9 companionship, and conduct befo re and after the offense.” ( In re Lynette G. (1976) 54 Cal.App.3d 1087, 1094; accord, People v. Campbell (1994) 25 Cal.Ap p.4th 402, 409.) Roberson was found near the Jetta, whic h 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 t ook 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 al ready a passenger in the Jetta when the burglary was committed. Thus, substantial ev idence supports Roberson’s presence in the Jetta at the time of the burglary. Even if Roberson was not dr iving 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 t hough Benson was the person who actually rented the car, the ju ry could reasonably conclude that Roberson’s association with the vehicle was substantial enough that he supplied the vehicle th at was used in the commission of the burglary, or at least acqui esced in its use. Fu rther, 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 evid ence was sufficient for the ju ry 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 offens e 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 natura l and probable consequence of the intended crime. The latter question is no t whether the aider and abettor actually foresaw the additional crime, but whethe r, judged objectively, it was reasonably foreseeable.” ( People v. Mendoza (1998) 18 Cal.4th 1114, 1133.) “Liability under the natural and probable consequences doctrine ‘is measur ed by whether a reasonable person in the defendant’s position would have or should have known that the charged offense was a reasonably foreseeable c onsequence 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 reason ably have been contemplat ed is enough . . . .’ ” ( People v. Nguyen (1993) 21 Cal.App.4th 518, 535, quoti ng 1 Witkin & Epstei n, Cal. Criminal Law (2d ed. 1988) § 1 32, p. 150.) “A reasonably fore seeable consequence is to be evaluated under all the factual circumstances of the individual case [citation] and is a factual issue to be reso lved 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 forese eable 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 ai der 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 fo r 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 vi olation of Vehicle Code section 2800.2 was foreseeable to be unpersua sive. 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 fr eeway was sufficient. It di d not require the potentially deadly act of driving the wrong way on a freeway. [Citation.] After one reckless escape from pursuing police officers fo llowing the commission of a burglary, it was reasonably foreseeable that the driver of the vehicle, wh en police later attempted to stop the vehicle, would again attempt to elude the pursuing office rs while driving with a ‘wanton or willful disregard for the safety of persons or prop erty.’ ” 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 th e Jetta drove the wro ng 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 pur suit was that it occurred at a high rate of speed. The People provide no authority for the proposition that br eaking the speed limit, while evading police officers, withou t 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 th at occurred during the later pursuit became foreseeable to Roberson after the initial pursuit.

4 Vehicle Code section 2800.2, subdivisi on (b), provides: “For purposes of this section, a willful or wanton disregard for the safety of persons or pr operty includes, but is not limited to, driving while fleeing or attempting to el ude a pursuing peace officer during which time either three or more viola tions that are assigned a traffic violation point count under Section 128 10 occur, or damage to propert y occurs.” Because simple speeding, without other facts to show that the speeding dem onstrated 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, su bdivision (b), we would be unable to find that substantial evidence supports a conclusi on that a violation of Vehicle Code section 2800.2 occurred du ring 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 ev idence supported a finding by the jury that Roberson was guilty of a violation of Vehicle Code sec tion 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 misd emeanor 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 cont ention, arguing that because there was no dispute that the driver of the Jetta showed a willful or want on disregard for safety, there was “ ‘no evidence that the offe nse was less than that char ged,’ ” and, thus, no duty on the part of the trial court to inst ruct on a lesser included offense. We disagree with the People’s position. When a jury consid ers liability under the natural and probable conseque nces doctrine, it must determine not only that someone whom the defendant aided and ab etted committed the non-target offense, but also that the non-target offense was foreseeable to the ai der-abettor. This involves determining that each of the elements of the no n-target offense was foreseea ble and, obviously, the facts may be such that the jury could reach diffe rent conclusions about different elements. When a lesser included offense is contained with in the non-target offense, the jury might conclude that the elements of the lesser incl uded offense were forese eable, but not one or more of the additional elements re quired 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 questi on as to whether all the elements were foreseeable to the aider-abettor. In that case, the trial court ha s a duty to instruct the jury13 on the lesser included offense and to expl ain 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 6 62, 681 [concluding that be cause target offenses of conspiracy to commit an assault and a batte ry 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 tria l court erred in not in structing the jury on the lesser included offense of misdemeanor evasion, a viola tion of Vehicle Code section
2800.1. 3. Remedy Evasion of the police was foreseeable when Roberson aided and abetted the burglary and received st olen property, but insufficient evidence established foreseeability that the evasion would be conducted with willful or wanton disregard for safety. Although the eviden ce did not establish that Robers on was liable for a violation of Vehicle Code section 2800.2, there was suffici ent evidence that Ro berson was liable for a violation of Vehicle Code section 2800.1 (misdemeanor evasion of a peace officer), a lesser included offense of Vehi cle Code section 2800.2. A ccordingly, 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 cas e is remanded to the trial court for resentencing in accordance with the amended judgment.
III. Receiving Stolen Property “A conviction for receiving stolen prop erty cannot withstand appellate scrutiny unless substantial evidence was presented to th e trier of fact that (1) the property was received, concealed, or withheld by the accuse d; (2) such property had been obtained by theft or extortion; and (3) the accused knew th at the property had be en so obtained.” ( People v. Kunkin (1973) 9 Cal.3d 245, 249.) “While it has been stated that the mere14 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 an d that possession may be established by both direct and circumstantial evid ence and reasonable inferences drawn from such evidence.” ( People v. Johnson (1980) 104 Cal.App.3d 598, 60 6.) While dominion and control cannot be inferred from mere presence or acce ss, “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 evid ence supported a finding that Roberson aided and abetted the burglary at Autodesk a nd 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, th e jury had before it substantial evidence that the property in qu estion had been obtain ed by theft and that Roberson was aware of that f act. Roberson disputes that s ubstantial evidence supported the first element of the offense: “No ev idence established that [Roberson] himself handled, possessed, or knowingl y intended to make away with the stolen property. . . . His mere vicinity to the stolen proper ty . . . was insufficient . . . .” What Roberson overlooks in his argument is the same factor that supports a finding that he aided and abetted the burg lary—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 excl usive 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 pr operty that was consecutive to the sentence for the charge of evading with willful or wanton disregard fo r 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 Peopl e “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 pote ntial term of imprisonm ent, 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 sole ly on it being the natural and probable consequence of another offense, the defendant may lack the independent objective or intent necessary to impose cons ecutive 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 th at the matter should be remanded for resentencing.” Because we have reduced the conviction for violation of Vehicle Code section 2800.2 to a convicti on for a misdemeanor violation of Vehicle Code section 2800.1, a remand for resentencing is already part of ou r disposition. On remand, the burglary or receiving stolen goods count w ill provide the longest potentia l term of imprisonment. We agree with the parties that Bradley applies in this case and, on resentencing, would prohibit the imposition of a consecutive sent ence for the violation of Vehicle Code section 2800.1.16 DISPOSITION The judgment is amended to replace the co nviction for a violation of Vehicle Code section 2800.2 with a conviction for a violation of Vehicl e Code section 2800.1. In all other respects, the judgment is affirmed. Th e 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.