People v. Carriedo CA2/6

Filed 7/27/16 P. v. Carriedo CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B261314 (Super. Ct. No. 2014021873) Plaintiff and Respondent, (Ventura County)

v.

JULIO C. CARRIEDO,

Defendant and Appellant.

Julio C. Carriedo appeals after a jury convicted him of unlawfully driving a vehicle (count 1; Veh. Code, § 10851, subd. (a)), receiving stolen property (count 2; Pen. Code,1 § 496d, subd. (a)), and possessing a smoking device (count 3; Health & Saf. Code, former § 11364.1, subd. (a), now § 11364, subd. (a)). In a bifurcated proceeding, the trial court found true allegations that appellant had suffered a prior conviction for vehicle theft (§ 666.5, subd. (a) [hereafter section 666.5(a)]) and had served three prior prison terms (§ 667.5, subd. (b) [hereafter section 667.5(b)]). The court sentenced appellant to five years on count 1(with four years to be served in county jail followed by one year of mandatory supervision), a concurrent term of three years on count 2, and a concurrent term of six months on count 3.

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

Appellant contends we must vacate his sentence and remand for resentencing because the court's imposition of the midterm of three years on counts 1 and 2 conflicts with its striking of the section 666.5(a) allegations as to both counts. The People alternatively urge us to vacate the sentence and remand for resentencing on the ground that the court failed to address one of the section 667.5(b) allegations. Appellant also claims he was wrongfully convicted of both unlawfully driving a vehicle and receiving stolen property and was sentenced for both crimes in violation of section 654. Although we reject the latter claim, we vacate the sentence and remand for resentencing as urged by the parties. Otherwise, we affirm.2 STATEMENT OF FACTS At approximately 3:15 p.m. on July 15, 2014, Hugo Hernandez parked his truck in front of his residence in Port Hueneme. He was planning to leave again soon, so he left his keys in the ignition with the doors unlocked. At about 3:30 p.m., Hernandez went outside and discovered that the truck had been stolen. He called the police. A neighbor told the responding officer she had seen a man get into the truck and drive away. Hernandez and his wife drove around the neighborhood to look for the truck. At about 6:15 p.m., they found it parked in an alley with the doors open. While Hernandez was calling the police, someone got in the truck and drove away. Hernandez followed his truck and observed the driver make a U-turn and park. The police had arrived by then and saw appellant, the truck's sole occupant, get out of the vehicle. Appellant was ordered to get on the ground and he complied, dropping Hernandez's keys as he did so. Appellant claimed he was merely walking across the street and that the keys