Filed 1/21/21 P. v. Castillo CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

HERIBERTO ARCE 

CASTILLO,

 Defendant and Appellant.

2d Crim. No. B304142

(Super. Ct. No. 2018043668)

(Ventura County)

Heriberto Arce Castillo appeals from the judgment 

after a jury convicted him of evading an officer with willful or 

wanton disregard for safety (Veh. Code,1 § 2800.2, subd. (a); count 

1), eluding a pursuing peace officer by driving the opposite 

direction of lawful traffic (§ 2800.4; count 2), unlawful driving of a 

vehicle (§ 10851, subd. (a); count 3), receiving stolen property 

(Pen. Code, § 496d, subd. (a); count 4), and possessing a billy club

1 Further unspecified statutory references are to the 

Vehicle Code. 
2

(Pen. Code, § 22210; count 5). The trial court sentenced Castillo 

to sixteen months in state prison. 

Castillo contends (1) his conviction for unlawfully 

driving a vehicle precludes his conviction for receiving stolen 

property; (2) the jury was not properly instructed on receiving 

stolen property; (3) the abstract of judgment must be amended to 

reflect that unlawful driving was not a theft offense; (4) the 

abstract of judgment must be corrected to exclude certain fees; 

and (5) punishment on counts 2, 3, and 4 should have been stayed 

pursuant to Penal Code section 654. We remand to the trial court 

with direction to modify the abstract of judgment to reflect that 

count 3 was not a theft offense, to decide whether to impose court 

facilities and criminal conviction fees, and to order the sentence 

on either of counts 3 or 4 to be stayed. In all other respects, the 

judgment is affirmed. 

FACTUAL AND PROCEDURAL HISTORY

The owner of a Honda Odyssey called the police to 

report that her car, which had been parked in front of her 

Burbank home, was missing. Later the same day, California 

Highway Patrol officers in Ventura County responded to a 

dispatch call reporting the Honda driver “driving recklessly” on a 

highway. The officers initiated a traffic stop. The Honda driver 

accelerated to 100 miles per hour and weaved in and out of traffic 

lanes. The officers stopped the pursuit for safety reasons. They 

reported to dispatch the direction the Honda was headed. 

Another officer saw the Honda drive past him and 

saw the driver’s face. He identified Castillo as the driver. The 

officer pursued Castillo, who began driving “at a high rate of 

speed.” Castillo drove the opposite direction of traffic on the 
3

freeway at about 100 miles per hour. The officer stopped the 

pursuit for safety reasons and lost sight of the Honda. 

A few minutes later, the officers received a call that 

the Honda was involved in a collision about five miles from them. 

When they arrived at the scene, the Honda was abandoned. A 

witness saw the driver run across the roadway into a field. The 

witness described the driver as a Hispanic male wearing all black 

clothing. 

The officers set up a perimeter and located Castillo

about 200 feet from the Honda. He was lying face down and

wearing all black clothing. 

DISCUSSION

Unlawful Driving and Receiving Stolen Property

Castillo contends his conviction for unlawfully 

driving a vehicle (§ 10851, subd. (a)) precludes a conviction for

receiving the same vehicle as stolen property (Pen. Code, § 496d). 

This contention lacks merit. 

Our Supreme Court in People v. Garza (2005) 35 

Cal.4th 866, 871 (Garza), considered whether a conviction under 

section 10851, subdivision (a) bars a conviction for Pen. Code, 

§ 496, subdivision (a) (receiving stolen property). There, a 

limousine rental company reported a stolen vehicle. (Garza, 

supra, at p. 872.) The police found the vehicle six days later in a 

parking lot with the defendant sitting in the driver’s seat. (Ibid.) 

The jury found the defendant guilty of both violating section 

10851, subdivision (a) and Penal Code section 496, subdivision

(a). (Id. at p. 874.) The Court of Appeal reversed. It interpreted 

the violation of section 10851 as an “‘auto theft’” and concluded 

the defendant could not also be convicted of receiving the same 

vehicle as stolen property. (Ibid.)
4

The Supreme Court reversed. It explained that a

person can violate section 10851, subdivision (a) by unlawful 

driving or taking of a vehicle. “Unlawfully taking a vehicle with 

the intent to permanently deprive the owner of possession is a 

form of theft, and the taking may be accomplished by driving the 

vehicle away.” (Garza, supra, 35 Cal.4th at p. 871.) A person 

convicted of unlawfully taking a vehicle with the intent to 

permanently deprive the owner cannot be convicted of receiving 

the same vehicle as stolen property. (Ibid.) “On the other hand, 

unlawful driving of a vehicle is not a form of theft when the 

driving occurs or continues after the theft is complete 

(‘. . . posttheft driving’). Therefore, a conviction under section 

10851(a) for posttheft driving is not a theft conviction and does 

not preclude a conviction . . . for receiving the same vehicle as 

stolen property.” (Ibid., emphasis in original.) Because the 

evidence supported a finding that the defendant violated section 

10851 by posttheft driving, the court held that defendant could be 

convicted of both unlawful driving and receiving stolen property. 

(Ibid.)

Moreover, our Supreme Court in People v. Page

(2017) 3 Cal.5th 1175, 1183 (Page), observed that “[r]egardless of 

whether the defendant drove or took the vehicle, he did not 

commit auto theft if he lacked the intent to steal.” A defendant 

may therefore be convicted of both “joyriding” (i.e., driving with 

the intent to temporarily deprive the owner of possession) and 

receiving the same vehicle as stolen property. (Ibid; see Garza, 

supra, 35 Cal.4th at p. 876 [defining joyriding].)

Here, there is no dispute Castillo was convicted of 

section 10851, subdivision (a) under a theory of joyriding. The 

prosecutor explained that the jury did not need to find Castillo 
5

took the vehicle to find him guilty of violating section 10851. The 

jury was also instructed with CALCRIM No. 1820 pursuant to a 

joyriding theory, which requires proof that Castillo: (1) “drove 

someone else’s vehicle without the owner’s consent”; and (2) 

“intended to deprive the owner of possession or ownership of the 

vehicle for any period of time.” Castillo was therefore convicted 

of unlawful driving, not unlawful taking. Nothing precluded 

Castillo from being convicted of both joyriding and receiving 

stolen property. (Garza, supra, 35 Cal.4th at p. 871; Page, supra, 

3 Cal.5th at p. 1183.) 

Castillo argues he cannot be convicted of both

joyriding and receiving stolen property because he cannot intend 

to temporarily deprive the owner of possession and 

simultaneously intend to permanently deprive the owner of 

possession. Castillo is wrong. (Page, supra, 3 Cal.5th at p. 1183.) 

He also misstates the intent requirement for receiving stolen 

property. To prove a defendant guilty of receiving stolen 

property, the prosecution need only show defendant’s knowledge

that the property was stolen. (People v. Reyes (1997) 52 

Cal.App.4th 975, 985.) Proof that the defendant intended to 

permanently deprive the owner of possession is not required. 

(See Pen. Code, § 496d; CALCRIM No. 1750.) Thus, dual 

convictions can be upheld where a person unlawfully drives a 

vehicle that they know was stolen by another person.

Jury Instruction on Receiving Stolen Property

Castillo contends the trial court improperly 

instructed the jury on receiving stolen property. He argues it

should have instructed on the definition of theft by larceny. The 

contention is forfeited.
6

The trial court has a duty to instruct on the general 

principles of law relevant to the issues raised in the case. This 

includes instruction on all elements of a charged offense. (People 

v. Sedeno (1974) 10 Cal.3d 703, 715, overruled on another ground 

by People v. Breverman (1998) 19 Cal.4th 142, 163.) We review 

the legal adequacy of an instruction de novo. (People v. Cole

(2004) 33 Cal.4th 1158, 1210.) 

Where jury instructions are adequate, the trial court 

is not obligated to give a clarifying instruction without a request 

to do so. (People v. Mayfield (1997) 14 Cal.4th 668, 778.) Failure 

to request additional clarifying instructions in the court below 

forfeits a contention on appeal that an instruction was

incomplete. (People v. Russell (2010) 50 Cal.4th 1228, 1273.) 

Here, the trial court properly instructed the jury with 

CALCRIM No. 1750, which states the prosecution must prove: 

(1) Castillo “received . . . property that had been stolen”; (2) when 

he “received . . . the property, he knew that the property had been 

stolen”; and (3) he “actually knew of the presence of the 

property.” The court further instructed that “[p]roperty is stolen 

if it was obtained by any type of theft, or by burglary or robbery.” 

These instructions track the language of Penal Code section 

496d, subdivision (a), and adequately provide the law relevant to 

the facts of this case. 

The trial court had no obligation to provide

instruction on the definition of theft by larceny because it was not

relevant. It was undisputed at trial that the Honda was stolen. 

Castillo’s failure to ask for a clarifying instruction regarding the 

definition of theft by larceny thus forfeited the claim on appeal.
7

Abstract of Judgment 

Castillo contends the abstract of judgment must be 

amended to specify that count 3, unlawful driving of a vehicle, 

was a non-theft offense. The Attorney General concedes. We 

agree. An appellate court has the power to order a correction of 

an abstract of judgment that does not accurately reflect the oral 

judgment. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) On 

remand, we direct the clerk of the court to amend the abstract of 

judgment accordingly. 

Fees

Castillo argues the abstract of judgment and 

sentencing minute order must be amended to strike the $150

court facilities assessment (Gov. Code, § 70373) and the $200

criminal conviction assessment fees (Pen. Code, § 1465.8), 

because the court did not orally impose them at sentencing. He 

also argues the court was required to determine his ability to pay 

these fees. (People v. Dueñas (2019) 30 Cal.App.5th 1157, 1164.) 

The Attorney General contends no amendment is necessary 

because these fees were mandatory.

Because the trial court did not orally impose the 

court facilities and criminal conviction fees, Castillo did not have 

an opportunity to object to them. We direct the trial court on 

remand to specify whether it imposes these fees and, if so, allow 

Castillo an opportunity to request a hearing on his ability to pay 

them. (People v. Castellano (2019) 33 Cal.App.5th 485, 489-491.) 

Penal Code section 654

Castillo contends the trial court erred by imposing 

concurrent sentences for counts 2, 3, and 4. He contends the 

court should have stayed each of these sentences pursuant to 

Penal Code section 654 because they were part of an indivisible 
8

course of conduct. The Attorney General concedes the sentence 

for count 2 should have been stayed, but argues Castillo harbored 

a separate intent when he committed counts 3 and 4. Thus, only 

one of those sentences (either count 3 or 4) needs to be stayed. 

We agree with the Attorney General. 

Penal Code section 654 prohibits multiple 

punishment for a single act. “‘“‘Whether a course of criminal 

conduct is divisible[,] and therefore gives rise to more than one 

act within the meaning of section 654[,] depends on the intent 

and objective of the actor.’”’” (People v. Jackson (2016) 1 Cal.5th 

269, 354 (Jackson).) If all of the offenses were “merely incidental 

to” a single objective, or were all “the means of accomplishing or 

facilitating” that objective, the defendant “may be found to have 

harbored a single intent and . . . may be punished only once.” 

(People v. Harrison (1989) 48 Cal.3d 321, 335.) But if the 

defendant “harbored ‘multiple criminal objectives[ ]’ [that] were 

independent of and not merely incidental to each other, [they] 

may be punished for each statutory violation committed in 

pursuit of each objective, ‘even though the violations shared 

common acts or were parts of an otherwise indivisible course of 

conduct.’ [Citation.]” (Ibid.)

Intent and objective are factual issues which we will 

uphold if supported by substantial evidence. (Jackson, supra, 1 

Cal.5th at p. 354.) “We review the trial court’s determination in 

the light most favorable to the respondent and presume the 

existence of every fact the trial court could reasonably deduce 

from the evidence.” (People v. Jones (2002) 103 Cal.App.4th 1139, 

1143.)

Here, the parties agree the evidence does not support

a finding that Castillo harbored a separate intent or objective 
9

when he committed counts 1 and 2 (evading and eluding 

pursuing officers). His intent in both counts 1 and 2 (the 

“evading” counts) was to avoid arrest. The sentence for count 2 

should have been stayed. 

The parties also agree the evidence does not support 

a finding that Castillo harbored a separate intent or objective 

when he committed counts 3 and 4 (unlawful driving and 

receiving stolen property). The evidence shows that counts 3 and 

4 were pursuant to one single act—driving the stolen Honda. 

When Castillo did so, he harbored one intent of depriving the 

owner of the Honda for a period of time without the owner’s 

consent. Thus, the sentence for either count 3 or 4 should have 

been stayed. (See People v. Austell (1990) 223 Cal.App.3d 1249, 

1252, fn. 3 [the sentence for unlawful driving was stayed

pursuant to section 654, where the appellant was convicted of 

both unlawful driving and receipt of stolen property, because 

there was one single act constituting a criminal offense under two 

statutes].) 

However, the evidence supports that when Castillo 

committed counts 1 and 2, he harbored a separate intent and 

objective from when he committed counts 3 and 4. Castillo was 

driving the stolen Honda before the police began to follow him. 

The evidence supports a finding that Castillo formed an intent to 

drive the vehicle without the owner’s consent (counts 3 and 4), 

and then formed a separate intent to avoid arrest when he 

evaded the police officers (counts 1 and 2). Therefore, the 

sentence for either count 3 or 4, but not both counts, should be 

stayed. 
10

DISPOSITION

The matter is remanded with direction to the trial 

court to specify whether it imposed the court facilities and 

criminal conviction assessments fees (Gov. Code, § 70373; Pen. 

Code, § 1465.8) and, if so, allow Castillo the opportunity to 

request an ability to pay hearing. The court is also directed to 

stay the sentence for either count 3 or 4, pursuant to Penal Code 

section 654. The clerk of the superior court shall amend the 

abstract of judgment and the sentencing minute order to reflect 

the court’s order with respect to the fees and the stay of sentence,

and to reflect that the conviction for count 3, unlawful driving, 

was a non-theft offense. The clerk shall forward a certified copy 

to the Department of Corrections and Rehabilitation. In all other 

respects, the judgment is affirmed. 

NOT TO BE PUBLISHED.

TANGEMAN, J.

We concur:

YEGAN, Acting P. J.

PERREN, J.
Michele M. Castillo, Judge

Superior Court County of Ventura

______________________________

Adrian Dresel-Velasquez, under appointment by the 

Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, 

Chief Assistant Attorney General, Susan Sullivan Pithey, 

Assistant Attorney General, Noah P. Hill and Kathy S. 

Pomerantz, Deputy Attorneys General, for Plaintiff and 

Respondent.