People v. Smith CA3

Filed 6/4/15 P. v. Smith CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin) ----

THE PEOPLE, C075887

Plaintiff and Respondent, (Super. Ct. No. MF036546A)

v.

JERMAINE LAMONT SMITH,

Defendant and Appellant.

After observing defendant Jermaine Lamont Smith and a companion approach a 1997 Honda Civic that had been reported stolen, a police officer arrested defendant. An information charged defendant with vehicle theft, receiving a stolen vehicle, and driving without a license. (Veh. Code, § 10851, subd. (a); Pen. Code, § 496d, subd. (a); Veh. Code, § 12500, subd. (a).)1 In addition, the information alleged numerous prior convictions. A jury found defendant guilty of receiving a stolen vehicle but acquitted

1 All further statutory references are to the Penal Code unless otherwise indicated.

1

him of the other counts. Sentenced to 10 years in state prison, defendant appeals, arguing remand is necessary for resentencing and sufficient evidence does not support his conviction for receiving a stolen vehicle. We shall affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND Following his arrest, defendant was charged with count 1, vehicle theft; count 2, receiving a stolen vehicle; and count 3, driving without a license. The information further alleged as to count 1 that defendant had a prior conviction for vehicle theft (§ 666.5) and alleged as to both counts 1 and 2 that defendant had three prior serious felony convictions (§§ 667, subd. (d), 1170.12, subd. (b)) and had served five prior prison terms (§ 667.5, subd. (b)). Defendant entered a plea of not guilty. The trial court granted defendant’s motion to bifurcate the trial on his prior convictions. The following facts were revealed at the jury trial. Francis Waters owned a white 1997 Honda Civic, which he allowed his son Christopher Waters to use. Francis did not know defendant or give anyone besides Christopher permission to use the Civic. Nor did Christopher know defendant. In June 2013 Christopher parked the Civic on a street in Oakland. It was stolen in the early morning hours. Christopher reported the theft to the Oakland police. A few days after the theft of the Civic, An Ly parked his 2001 Toyota Camry in a Stockton supermarket lot. When he returned, Ly discovered someone had stolen the Camry’s license plates. Ly reported the theft to the police. Ly did not know defendant. Two days later, Manteca Police Officer Stephen Schluer, part of the Delta Regional Auto Theft Team, set up a surveillance at a trailer park. Officer Schluer saw a white Civic, and when he ran the vehicle identification number, he discovered the car had been reported stolen. As he watched the Civic from his unmarked police vehicle, Officer Schluer observed defendant and a female approach the car. Defendant went to the driver’s side, the woman to the passenger side. Defendant opened the Civic’s door, got in, and started