Filed 3/15/16 P. v. Ha CA2/7
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


THE PEOPLE,                                                          B260816

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. GA094266)
         v.

RICKY HA,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Jared D.
Moses, Judge. Affirmed as modified.
         Alan S. Yockelson, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Michael R. Johnsen and
Alene M. Games, Deputy Attorneys General, for Plaintiff and Respondent.
                                               _________________
       Ricky Ha was convicted following a jury trial of one count of grand theft of an
automobile (Pen. Code, § 487, subd. (d)(1)), one felony count of unlawful taking or
driving a vehicle (Veh. Code, § 10851, subd. (a)), and one misdemeanor count of
shoplifting (Pen. Code, § 459.5). In bifurcated proceedings the trial court found true the
special allegation that Ha had suffered a prior serious conviction for arson within the
meaning of the three strikes law and sentenced him as a second strike offender to an
aggregate state prison term of 5 years 10 months including consecutive terms for
unlawful taking or driving of a vehicle (four years) and grand theft of an automobile
(16 months). On appeal Ha argues his unlawful-taking-or-driving conviction must be
reversed as a lesser included offense of grand theft of an automobile or, alternatively, the
trial court erred in refusing to stay execution of his sentence on one of the two
automobile-related offenses pursuant to Penal Code section 654. We reject Ha’s
contention regarding separate convictions but agree execution of his subordinate term
sentence for grand theft of an automobile must be stayed. We modify his sentence to stay
execution of the consecutive 16-month term imposed for that count and affirm the
judgment as modified.
                 FACTUAL AND PROCEDURAL BACKGROUND
       The evidence at trial, including security videotape, established that on August 7,
2014 Ha surreptitiously took without permission a new black, four-door Jeep Wrangler
Unlimited from the outdoor lot of the Alhambra Chrysler Dodge Jeep and Ram
dealership. The Jeep was valued at approximately $42,000.
       One week later, on August 14, 2014, Ha was detained at a big-box retail store in
Alhambra for shoplifting after he left the store through an emergency exit door without
paying for a cell phone and bottle of juice he had placed in his shopping cart. As he was
approached by a loss prevention officer, Ha dropped or threw a key on the ground. When
questioned, Ha first responded that the key was to a car that belonged to a friend; he
subsequently said he had borrowed the car from work; finally, he refused to comment any
further about the vehicle. Using security videotape and information from store personnel

                                              2
Alhambra police officers located the stolen Jeep in the store parking lot. Surveillance
video showed Ha driving the stolen Jeep into the lot.
       An information filed September 11, 2014 charged Ha with violating Penal Code
section 487, subdivision (d)(1), grand theft of an automobile, on August 7, 2014, and
violating Vehicle Code section 10851, subdivision (a), unlawful taking or driving a
                              1                                           2
vehicle, on August 14, 2014. Although neither the court’s instructions nor the verdict
forms included those dates, in his closing argument the prosecutor emphasized the grand
theft offense had been committed on August 7, 2014 and what he referred to as
“joyriding,” or the unlawful driving of a vehicle, had occurred on August 14, 2014 when
Ha drove the sports utility vehicle to the big-box retail store. For her part, defense
counsel conceded the evidence established Ha arrived at the store in the Jeep and then
took items without paying for them, but argued there was insufficient evidence that it was
Ha who had stolen the vehicle on August 7, 2014 or that he had the requisite specific


1
       Ha was also charged with second degree commercial burglary of the big-box store.
That charge was reduced to misdemeanor shoplifting following adoption of
Proposition 47, effective November 4, 2014.
2
        The trial court instructed the jury using CALJIC form instructions, rather than the
CALCRIM jury instructions approved by the Judicial Council and strongly encouraged
for use in California. (See Cal. Rules of Court, rule 2.1050(a), (e).) Specifically, with
respect to grand theft of an automobile, the court instructed the People had to prove,
“1. A person took or drove away an automobile belonging to another person; [¶]
2. When the person took or drove away the automobile, he had the specific intent to
deprive the owner permanently of his or her property; and [¶] 3. The value of the
automobile was over $950.00.” (CALJIC No. 14.35.) With respect to unlawful taking or
driving a vehicle, the court instructed the People had to prove, “1. A person took or
drove a vehicle belonging to another person. [¶] 2. The other person had not consented
to the taking or driving of his or her vehicle; and [¶] 3. When the person took or drove
the vehicle, he had the specific intent to deprive the owner either permanently or
temporarily of his or her title to or possession of the vehicle.” (CALJIC No. 14.36.) The
court did not instruct with CALJIC No. 14.37, which is intended for use when a
defendant is charged with violating both Penal Code section 487, subdivision (d), and
Vehicle Code section 10851 for the same incident and explains the difference in the
specific intent element in the two offenses.
                                              3
intent on August 14, 2014 to be guilty of violating Vehicle Code section 10851,
subdivision (a) (that is, that he intended to deprive the owner of possession of the SUV).
       Ha was convicted both for stealing the Jeep and for the unlawful taking or driving
                                                                                           3
of the vehicle and sentenced to consecutive prison terms for the two felony offenses.
                                       DISCUSSION
       1. Ha Was Properly Convicted of Separate Violations of Penal Code Section 487,
          Subdivision (d)(1), and Vehicle Code Section 10851, Subdivision (a)
       In general, a defendant may be convicted of, although not punished for, more than
one crime arising out of the same act or course of conduct. (People v. Sloan (2007)
42 Cal.4th 110, 116; People v. Reed (2006) 38 Cal.4th 1224, 1226; see Pen. Code, § 954
[“[a]n accusatory pleading may charge . . . different statements of the same offense” and
“the defendant may be convicted of any number of the offenses charged”].) A judicially
created exception to this rule, however, prohibits multiple convictions based on
necessarily included offenses. (People v. Montoya (2004) 33 Cal.4th 1031, 1034; see
People v. Ortega (1998) 19 Cal.4th 686, 692 [“‘[a]lthough the reason for the rule is
unclear, this court has long held that multiple convictions may not be based on
necessarily included offenses’”].) “The law prohibits simultaneous convictions for both a
greater and a lesser offense necessarily included within it, when based on the same
conduct. [Citation.] ‘When the jury expressly finds defendant guilty of both the greater
and lesser offense . . . the conviction of [the greater] offense is controlling, and the
conviction of the lesser offense must be reversed.’” (People v. Milward (2011)
52 Cal.4th 580, 589; see generally People v. Lopez (1998) 19 Cal.4th 282, 288 [“if a
crime cannot be committed without also necessarily committing a lesser offense, the
latter is a lesser offense within the former”].)

3
        The court imposed the middle term sentence of two years, doubled under the three
strikes law, for unlawful taking or driving a vehicle, as the principal term, and one-third
the middle term of two years (eight months), doubled under the three strikes law, for
grand theft of an automobile, to be served consecutively. The court also imposed a six-
month consecutive term for the misdemeanor shoplifting conviction.
                                               4
       Ha contends his conviction for unlawful taking or driving a vehicle must be
reversed because it is a lesser included offense of grand theft of an automobile. Case law
supports the proposition that a violation of Vehicle Code section 10851, subdivision (a),
may be a lesser included offense of a violation of Penal Code section 487,
subdivision (d)(1). (See, e.g., People v. Kehoe (1949) 33 Cal.2d 711, 715 [defendant
convicted of both grand theft and driving an automobile without the permission of the
owner “on or about the same day in Humboldt County”; “in the absence of any evidence
showing a substantial break between Kehoe’s taking and his use of the automobile in that
county, only the conviction for one offense may be sustained”]; People v. Pater (1968)
267 Cal.App.2d 921, 924, 926 [when prosecution relies on the same evidence to prove
both grand theft of an automobile and the unlawful taking or driving of a vehicle,
defendant may not be convicted of both offenses; “[t]here was just one continuous,
indivisible, inseverable act or course of conduct which, as we see it, would have retained
its indivisible status so long as defendant retained the original dominion over the property
obtained by the original theft”].)
       Unlawfully taking or driving a vehicle in violation of Vehicle Code section 10851,
subdivision (a), however, is not invariably a lesser included offense of grand theft of the
same vehicle. For example, in People v. Malamut (1971) 16 Cal.App.3d 237 the
defendant’s convictions for grand theft of an automobile on December 8, 1968 and
unlawful taking or driving the vehicle on February 5, 1969 were both affirmed. In the
period between those two dates the vehicle’s license plates and registration papers were
switched and the motor replaced, “combined operations which would be considered a
major alteration of the vehicle.” (Malamut, at p. 242.) The Court of Appeal
distinguished People v. Kehoe, supra, 33 Cal.2d 711, and explained, “Here, there was not
only a lapse of a substantial period of time (62 days), but there was also a showing that
the vehicle was not being driven in one continuous journey away from the locus of the
theft. The driving charge was in an entirely different location and obviously for purposes
unconnected with the original taking. . . . The theft was definitely completed at the time

                                             5
the switch of engines took place, and the driving on February 5th, almost two months
after the initial taking, was not a driving incidental to the theft . . . .” (Malamut, at
p. 242.)
       The underlying principle for determining whether separate convictions for the two
automobile-related offenses are proper in a particular case can be discerned from People
v. Garza (2005) 35 Cal.4th 866 (Garza)—a case cited only in passing by Ha and the
                                                                                        4
Attorney General—in which the Supreme Court, in a somewhat different context,
reaffirmed its prior rulings that Vehicle Code section 10851, subdivision (a), separately
prohibits the acts of taking a vehicle and driving a vehicle (Garza, at p. 880), and held “a
defendant who steals a vehicle and then continues to drive it after the theft is complete
commits separate and distinct violations of section 10851(a).” (Ibid.; see also id. at
p. 880, fn. 2 [“whether vehicle driving is legally separable from vehicle taking . . .
depends on whether the driving continues after the taking of the vehicle is complete”].)
Quoting from People v. Strong (1994) 30 Cal.App.4th 366, 375, which in turn had quoted
from People v. Malamut, supra, 16 Cal.App.3d at page 242, the Court stated the taking
may be complete “when the driving is no longer part of a ‘“continuous journey away
from the locus of the theft.”’” (Garza, at p. 880.) The Court continued, “One might also
suggest that the taking is complete when the taker reaches a place of temporary safety.
[Citation.] Whatever the precise demarcation point may be (an issue we need not decide
here), once a person who has stolen a car has passed that point, further driving of the

4
        The question in Garza, supra, 35 Cal.4th 866, was whether the prohibition in
Penal Code section 496, subdivision (a), against dual convictions for stealing and
receiving the same property precluded defendant’s convictions for both unlawful taking
or driving a vehicle and receiving the same vehicle as stolen property. The answer, the
Court held, will usually depend on whether the Vehicle Code section 10851,
subdivision (a), conviction is for a theft or nontheft offense. “If the conviction is for the
taking of the vehicle, with the intent to permanently deprive the owner of possession,
then it is a theft conviction that bars a conviction of the same person under section 496(a)
for receiving the same vehicle as stolen property. Dual convictions are permissible,
however, if the section 10851(a) conviction is for posttheft driving of the vehicle.”
(Garza, at p. 881.)
                                               6
vehicle is a separate violation of section 10851(a) that is properly regarded as a nontheft
offense for purposes of the dual conviction prohibition of [Penal Code] section 496(a).”
(Id. at pp. 880-881.)
       If a defendant may separately violate the theft (taking) and nontheft (driving)
prohibitions of Vehicle Code section 10851, subdivision (a), in the same stolen vehicle,
provided only the driving continued after the taking of the vehicle was completed, a
defendant may similarly be guilty of both grand theft of an automobile and unlawful
driving of the same automobile, provided, as the Garza Court held, the unlawful driving
occurred after the taking was completed: A violation of the unlawful driving portion of
Vehicle Code section 10851, subdivision (a), occurring after the taking has been
completed requires proof of different elements than those necessary to prove an initial
unlawful taking of the vehicle without the owner’s consent whether the theft offense is
charged under Penal Code section 487, subdivision (d)(1), or Vehicle Code
section 10851, subdivision (a). Each offense can be committed without also necessarily
committing the other.
       Here, the evidence clearly established Ha used the stolen Jeep on August 14, 2014,
well after he had reached a place of temporary safety, for a separate purpose unrelated to
the original theft on August 7, 2014. Moreover, although the jury was instructed
pursuant to CALJIC No. 2.15 that possession of recently stolen property, if corroborated,
would support an inference that Ha was guilty of stealing the automobile, the evidence of
the two offenses presented by the People was not identical, as it had been in People v.
Pater, supra, 267 Cal.App.2d 921. To the contrary, the dealership sales manager
identified Ha on the August 7, 2014 surveillance video showing the theft of the Jeep; the
big-box store’s loss prevention officer identified Ha on the August 14, 2014 surveillance
video showing him driving the Jeep into the big-box parking lot, parking the vehicle and
walking toward the store entrance. Ha was properly convicted of separate offenses on
each of those two dates.



                                             7
       2. Ha’s Sentence Violates Penal Code Section 654
       When a defendant may be convicted of multiple offenses arising out of a single act
or course of conduct is closely related to, but distinct from, the question when a
defendant may receive multiple sentences based upon a single act or course of conduct.
(See People v. Sanders (2012) 55 Cal.4th 731, 734; People v. Ortega, supra, 19 Cal.4th
at p. 692.) The Supreme Court in Ortega observed, quoting from its earlier decision in
People v. Pearson (1986) 42 Cal.3d 351, 359, “This court has long struggled with the
problem of permitting multiple convictions while protecting the defendant from multiple
punishment.” (Ortega, at p. 692.) The solution that has been adopted, the Ortega Court
explained, “is, in general, to permit multiple convictions on counts that arise from a
single act or course of conduct—but to avoid multiple punishment, by staying execution
of sentence on all but one of those convictions.” (Ibid.)
       Penal Code section 654 implements this prohibition against punishment for two or
more offenses arising from the same act or from a series of acts constituting an
indivisible course of conduct. (People v. Rodriguez (2009) 47 Cal.4th 501, 507; People
v. Latimer (1993) 5 Cal.4th 1203, 1216.) Penal Code section 654, subdivision (a),
provides, “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. . . .”
       “‘Whether a course of criminal conduct is divisible and therefore gives rise to
more than one act within the meaning of [Penal Code] section 654 depends on the intent
and objective of the actor. If all the offenses were incident to one objective, the
defendant may be punished for any one of the offenses but not for more than one.’”
(People v. Correa (2012) 54 Cal.4th 331, 336; accord, People v. Rodriguez (2009)
47 Cal.4th 501, 507; People v. Newman (2015) 238 Cal.App.4th 103, 112.)
       As discussed, Ha’s convictions for violating Penal Code section 487,
subdivision (d)(1), and Vehicle Code section 10851, subdivision (a), were based on two

                                              8
distinct acts: stealing the Jeep on August 7, 2014—a theft offense—and driving it to the
big-box retail store on August 14, 2014—a nontheft offense. Nonetheless, Ha contends
both acts were incident to a single criminal objective: “to take, possess, and use the
Jeep.” At least on the facts of this case, Ha’s characterization of his objective appears
proper. (Cf. People v. Pater, supra, 267 Cal.App.2d at pp. 926-927 [“[h]e who steals an
automobile, steals it for use—whether that use be personal, for resale, gift, consumption,
abandonment or some other form of ultimate disposal”].) Thus, in People v. Malamut,
supra, 16 Cal.App.3d 237, where, as discussed, the court of appeal upheld separate
convictions for grand theft of an automobile and unlawful taking or driving a vehicle two
months later, the court stated, “[I]t would seem that a proper balancing of the community
interest involved and of the factor of fairness to the defendant can be better realized by
the application of that portion of Penal Code section 654 which proscribes multiple
punishments on multiple offenses constituting parts of a single criminal objective . . .
rather than by interdicting the convictions on the separate offenses.” (Id. at pp. 242-243;
see also People v. Jaramillo (1976) 16 Cal.3d 752, 760 & fn. 9 [case remanded to permit
defendant to be retried, upon the People’s election, for both unlawful taking or driving a
vehicle and receipt of stolen property; “[w]hile conviction on both charges would be
proper should particular findings be made we note without discussion that generally both
charges arise from a single course of conduct and punishment on both counts would be
               5
improper”].)
       We recognize the trial court has broad discretion in determining whether a
defendant had multiple criminal objectives independent of, and not merely incidental to,
each other for purposes of Penal Code section 654. Generally, we will uphold the court’s
finding a defendant had multiple criminal objectives if it is supported by substantial
evidence. (People v. Brents (2012) 53 Cal.4th 599, 619; People v. Osband (1996)

5
       The trial court in Garza, supra, 35 Cal.4th 866 stayed defendant’s sentence for
receiving stolen property under Penal Code section 654. (Garza, at p. 874.) The issue of
sentencing, therefore, was not addressed by the Supreme Court.
                                              9
13 Cal.4th 622, 730-731.) However, in rejecting Ha’s section 654 argument, the trial
court cited and discussed cases (and, in particular, People v. Strong, supra,
30 Cal.App.4th 366) that primarily considered the issue of multiple convictions, not the
distinct question of multiple punishments and the applicability of section 654. Based on
language from those decisions, the court stated “length of time” was the determinative
factor, “Is there a substantial break between the taking of the automobile and the use of
the automobile?” Answering that question yes—“he’s engaged in two separate activities
a substantial period of time apart”—the court concluded it was appropriate to impose
consecutive sentences for the two offenses.
       The trial court’s sentencing analysis was incorrect. “‘It is [the] defendant’s intent
and objective, not temporal proximity of his offenses, which determine whether the
transaction is indivisible.’” (People v. Capistrano (2014) 59 Cal.4th 830, 886; accord,
People v. Harrison (1989) 48 Cal.3d 321, 335.) Ha’s original criminal intent was to steal
and use the Jeep. His separate criminal intent, manifest the following week, to steal from
the big-box store, was properly the subject of the additional charge of burglary (reduced
to shoplifting), for which he was both convicted and sentenced. However, his use of the
Jeep to facilitate that new crime, even though accomplished after the taking of the Jeep
had been completed, was a continuous part of his original objective in stealing a vehicle.
To separately punish him both for the theft and the use of the Jeep in this case would
defeat the purpose of Penal Code section 654 “to insure a defendant’s punishment will be
commensurate with his culpability.” (People v. Perez (1979) 23 Cal.3d 545, 552; see
People v. Britt (2004) 32 Cal.4th 944, 953.)




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                                     DISPOSITION
       Ha’s sentence is modified to stay execution of sentence on the conviction for
grand theft of an automobile pursuant to Penal Code section 654. As modified the
judgment is affirmed. The superior court is directed to prepare a corrected abstract of
judgment and forward it to the Department of Corrections and Rehabilitation.




                                                 PERLUSS, P. J.


       We concur:




              ZELON, J.




              SEGAL, J.




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