People v. Black

Opinion

BENKE, J.

A jury convicted Jimmy Lee Black of unlawfully taking or driving a vehicle without permission of the owner (Veh. Code, § 10851, subd. (a)) and receiving stolen property (Pen. Code, § 496, subd. 1.). The court sentenced him to serve the upper term of three years in prison for the Vehicle Code section 10851, subdivision (a) conviction with a stayed (Pen. Code, § 654) upper term for receiving stolen property. Black appeals.

Shortly after midnight on January 19, 1989, Thomas Mason returned home and found his Toyota pickup missing. Mason had given no one permission to drive the truck. He called the police and reported the truck stolen. At approximately 2:30 a.m. on February 8, National City police officers saw Black driving the pickup. They ran a radio check on the license. While awaiting a response, they followed Black to a laundromat where they spoke with him. The officers received information on their radio inquiry indicating the vehicle had been reported stolen. They arrested Black and discovered the Toyota’s ignition punched and covered with a rag. Black testified he had borrowed the truck from a friend. After Black asked him about the punched ignition, the friend showed him a pink slip which was in the glove box.

Relying on

People

v.

Jaramillo

(1976) 16 Cal.3d 752 [129 Cal.Rptr. 306, 548 P.2d 706], Black contends both convictions must be reversed. He points out a defendant cannot be convicted of both stealing a vehicle and receiving the same vehicle as stolen property. He notes it is unclear whether the jury found he had stolen the truck when it found he had unlawfully taken or driven it. He also contends the trial court erred in failing to give a sua sponte instruction he could not be convicted of both stealing the truck and receiving it as stolen property.

In

Jaramillo,

the Supreme Court held a defendant could not be convicted both of vehicle theft and receiving the stolen vehicle. The prosecution here,

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