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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

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 a n 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
refl ec t 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 6 54. 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 t he sentence

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

FACT UAL 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 High way Patrol officers in Ventura County responded to a dispatch call re porting the Honda driver “driving r ecklessly” on a highway. The officers initiated a traffic stop. The Honda driver accelerated to 100 miles per hour and weaved in an d out of traffic
la nes. T he 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 ide ntified 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 the3

freeway at about 100 miles per hour

. The officer stopped the pursuit for safety reasons an d 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 fie ld. 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 l ying 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. C ode, § 4 9 6 d)

. 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, subd ivision (a) bars a conviction for Pen. Code, § 496, subd ivision (a) (receiving stolen property )

. There, a
limousine rental company reported a stolen vehicle. ( Gar za , 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. )
Th e jury found the defendant guilty of both violati ng section
10851 , subdivision (a) and Penal Code section 496

, subdivision (a)

. ( Id. at p. 874.) The Court of Appeal reversed. It interpreted
th e 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 explain ed 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 convi ction 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 violat ed 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 depriv e 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 prosecut or explained that the jury did not need to find Castillo5

took the vehicle to find him guilty of violating section 10851. The jury was also instr ucted with C ALCRIM No. 1 8 20 pursuant to a joyriding theory , which requires proof that Castillo: (1) “d rove someone else’s vehicle without the owner’s consent”; and (2) “intended to deprive the owner of possession or ownership of the

v ehicle for any period of time.” Castillo was therefore convicted
of unlawful driving , not unlawful taking. N othing 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 convict ed of both joyriding and receiving stolen propert y because he cannot intend to temporaril y 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 o nly show defendant’s knowledge that the property was stolen. ( People v. Reyes ( 1997) 52 Cal.App.4th 975, 985.) P roof that the defe ndant inten ded 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 dr ives a vehicle that they kn o w was stolen by another perso n. 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. T he
contention is forfeited

.6 The tri al 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.)

Whe re 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 .) F ailure to request additional clarifying instructions in the court below
forfeits a contention on appeal that an inst ruction w as incomplete . ( People v. Russell (201 0) 50 Cal.4th 1228, 1273.)

Here, the trial co urt properly instructed the jury with
CALCRIM No. 1750 , which sta tes 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 inst ructions track the language of Penal Code section
496 d , subdivision (a) , and adequately provide the law relevant to
the facts of this case.

T he trial court had no obligation to provide
instruction on the definition of theft by larcen y because it w as not

r elevant

. I t wa s 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 driv ing 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 b e 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 th em a t sentencing. He also argues the court was required to determine his ability to pay
the se 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 convictio n fees, Castillo did not have an opportunity to object to them

. W e direct the trial court on remand to specify whether it impose s these fees and , if so, allow
Castill o an opportunity to request a hearing on his ability to pay
the m

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

- 491.)

Penal Code section 654
Castillo contends the trial court erred by imposing

concurrent se ntences for counts 2, 3, and 4. He contends the
court should have stayed each of these sentences pursuant to Penal Code section 654 because t hey were part of an indivisible8

course of conduct . The Attorney General concedes the sentence for count 2 should have been stayed , but argues Cast illo harbored a separate intent when he committed counts 3 and 4. T hus, only

one of those sentence s (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 al l 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. Harris on (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 .)

Int ent and objective are factual issues which we will uphold if supported by substantial evidence. ( Jackson

, s upra , 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.4 th 1139, 1143.) Here, the parties agree the evid ence does not support a finding that Castillo harbored a separate intent or objective9

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 c ount 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, h e 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,
125 2 , fn. 3 [ the sentence for unlawful driving was stayed pursuant to section 654, w here the appellant was convict ed 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 count s 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
d r ive 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 impose d the court facilities and
criminal conviction assessments fees (Gov. Code, § 70373; Pen. Code, § 1465.8) and , if s o, 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 co nviction 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.