People v. Austell

California Court of Appeal Sep 17, 1990 No. B045439Published

Before: Ashby

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Holding. A defendant may be convicted of both vehicle theft (under a driving theory) and receiving stolen property when the record confirms the prosecution did not pursue a theft theory and the jury did not convict the defendant as the thief.

Issues

Whether a defendant can be convicted of both violating Vehicle Code section 10851 and receiving stolen property.
Whether the trial court failed to instruct the jury on the intent required for receiving stolen property.

Disposition. affirmed

Quotations verified verbatim against the opinion

“a person cannot be convicted as both the thief and the receiver.”

“the record as a whole shows appellant was not prosecuted as the thief and rebuts any inference the jury convicted him on that theory.”

“appellant’s conviction on both counts was proper and consistent with People v. Jaramillo, supra, 16 Cal.3d at page 759, because appellant was not found to be both the thief and the receiver.”

Opinion

ASHBY, J.

Kevin Bertram Austell appeals from the judgment entered following a jury trial in which he was convicted of unlawfully driving or

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taking a vehicle and receiving stolen property, with an admission of a prior felony conviction for which he served a prison term. (Veh. Code, § 10851; Pen. Code, §§ 496, 667.5, subd. (b).) He contends: “I. Appellant’s convictions for stealing and receiving the same property are improper. II. Failure to instruct on the intent required for receiving stolen property was prejudicial error.”

Viewed in accordance with the usual rules on appeal

(People

Barnes

(1986) 42 Cal.3d 284, 303 [228 Cal.Rptr. 228, 721 P.2d 110]), the evidence established that, on February 12, 1989, Kirsten Dietrich parked Boris Rostov’s 1962 Corvair on Washington Boulevard in Los Angeles County. Its pink slip was in the glove box. Dietrich used an ignition key for the Corvair, but the ignition housing was loose and turning it also started the Corvair. At 8:30 the next morning the Corvair was missing. Rostov and Dietrich did not give appellant consent to take or drive the Corvair.

At approximately 9 p.m. on March 1, 1989, Los Angeles Police Officer Jeffrey Stewart stopped appellant who was driving the Corvair. Appellant had no key, the trunk lock was “punched” and missing, and the Corvair had no license plates and no Department of Motor Vehicle documentation on the window. Appellant had no driver’s license or registration, but he handed the officer an altered pink slip and a stack of miscellaneous documents.

In arguing that it was improper to convict appellant of violating both Vehicle Code section 10851 and Penal Code section 496, appellant misplaces reliance on

People

Jaramillo

People v. Austell

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ASHBY, J.

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