Filed 3/28/14 P. v. Jimenez CA4/1
                           NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                         COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                        DIVISION ONE

                                                STATE OF CALIFORNIA

THE PEOPLE,                                                           D063938

         Plaintiff and Respondent,

         v.                                                           (Super. Ct. No. SCD243887)

PEDRO JIMENEZ,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Peter L.

Gallagher, Judge. Affirmed.



         Michael Anthony Hernandez for Defendant and Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Scott C. Taylor and Charles C. Ragland,

Deputy Attorneys General, for Plaintiff and Respondent.

         A jury found Pedro Jimenez guilty of unlawfully taking or driving a stolen vehicle

(Veh. Code, § 10851, subd. (a);1 count 1); receiving a stolen vehicle (Pen. Code, § 496d; count

2); and failure to comply with a police officer's lawful order (§ 2800; count 3). On appeal,


1        All subsequent statutory references are to the Vehicle Code, unless otherwise specified.
Jimenez contends the trial court erred when it did not instruct the jury sua sponte that he could

not be simultaneously convicted of count 1 and count 2 for stealing and receiving the same

stolen property. We affirm the judgment.

                                         BACKGROUND

       On October 13, 2012, at about 1:30 a.m., San Diego Police Sergeant Paul Yang was on

patrol. Sergeant Yang observed a car being driven without its headlights on and initiated a

stop for the traffic violation. Immediately after stopping the car, the driver stepped out and

placed his hands in the air. Sergeant Yang ordered the driver to sit in the car. The driver

complied, but he drove away from the traffic stop once he returned to the car. Sergeant Yang

pursued the car for one block, but lost it once it turned onto an adjoining street.

       A short time later, Officer Stephen Thorn reported he had seen a car that matched the

description of the fleeing car. Officer Thorn reported he had detained the car's passenger, but

the driver fled on foot behind a nearby house. Sergeant Yang identified the car as the same

one that had fled from him, but the officers were unable to locate the driver. Sergeant Yang

asked a dispatcher to contact the car's registered owner and it was discovered it had been

recently stolen.

       On October 13, 2012, at about 11:30 p.m., officers detained two males in connection

with a reported disturbance. Sergeant Yang arrived at the scene, immediately identified

defendant as the driver of the car that had fled from the traffic stop earlier in the day, and

arrested him for the offenses listed above.

       Jury trial commenced on April 9, 2013, and the jury found defendant guilty of all three

counts on April 12, 2013.


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                                          DISCUSSION

       Defendant contends the trial court erred by not instructing the jury sua sponte that it

could not convict defendant for both the theft of the car (§ 10851, subd. (a)) and receiving the

same stolen car (Pen. Code, § 496d). The People contend such an instruction was not

necessary because defendant was prosecuted for posttheft driving, which is a separate

conviction for receiving the stolen car. We agree with the People.

       A trial court has a sua sponte duty to instruct the jury on the general principles of law

relevant to the issues raised by the evidence. (People v. Rogers (2006) 39 Cal.4th 826, 866.)

In determining the correctness of jury instructions, the reviewing court looks to the instructions

as a whole and considers the arguments of counsel. (People v. Young (2005) 34 Cal.4th 1149,

1202.) Whether a trial court properly instructed on the applicable principles of law is reviewed

de novo. (People v. Mathson (2012) 210 Cal.App.4th 1297, 1311.)

       Section 10851, subdivision (a), separately prohibits both the unlawful driving or taking

of a vehicle. "A person who violates section 10851[, subdivision] (a) by taking a car with the

intent to permanently deprive the owner of possession, and who is convicted of that offense on

that basis, cannot also be convicted of receiving the same vehicle as stolen property." (People

v. Garza (2005) 35 Cal.4th 866, 876.) "If, on the other hand, a section 10851[, subdivision] (a)

conviction is based on posttheft driving, a separate conviction . . . for receiving the same

vehicle as stolen property is not precluded." (Ibid.)

       Here, no clarifying instruction was required because defendant was not prosecuted for a

section 10851, subdivision (a) theft offense. Although defendant contends the prosecutor

presented evidence that the car had been stolen, the record makes clear that the prosecutor did


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not contend that defendant stole the car. At the outset of closing argument, the prosecutor set

forth the basis for the section 10851 charge: "He was driving a stolen vehicle." Later in

closing argument, the prosecutor again clarified his theory of the case: "Again, the People are

not required to prove how [the] car was stolen; right? [¶] There's no evidence about that. We

don't know. But that's not part of what the People are required to prove." The prosecutor yet

again made clear that the section 10851, subdivision (a) charge was based on defendant's

unlawful driving, not theft, of the car: "So again, we don't have to prove the taking because,

honestly, the People don't know how that car was taken. [¶] On the other hand, we do know

that the defendant was driving that vehicle at 1:26 in the morning on October 13th, 2012." The

prosecutor never once argued or even suggested that defendant had originally stolen the car.

       The trial court had no duty to instruct the jury that it was prohibited from convicting

defendant of both driving the stolen car and receiving it as stolen property. (Accord, People v.

Austell (1990) 223 Cal.App.3d 1249, 1252.)

                                         DISPOSITION

       The judgment is affirmed.


                                                                            BENKE, Acting P. J.

WE CONCUR:



O'ROURKE, J.



IRION, J.



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