P. v. Medina CA3

Filed 5/7/13 P. v. Medina CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Yolo) ---- THE PEOPLE, C070686

Plaintiff and Respondent, (Super. Ct. Nos. CR114211, CR094095, CR096061) v.

MARCO ANTONIO MEDINA,

Defendant and Appellant.

After defendant Marco Antonio Medina was found to possess information from stolen credit and ATM cards, a jury found him guilty of fraudulent possession of an access card (Pen. Code,1 § 484e, subd. (d) -- count 1); and receiving stolen property (§ 496, subd. (a) -- count 2). On appeal, defendant claims the prohibition upon dual convictions for theft and receipt of the same property bars him from being convicted of both charges. The People concede defendant’s conviction on count 2 was improper, and we agree. BACKGROUND Oscar Ruiz, an acquaintance of defendant’s family, discovered one morning that someone had stolen his wallet from the glove box of his truck. In his wallet was his bank credit card and his credit union ATM card. Ruiz reported the theft to police.

1 Further unspecified statutory references are to the Penal Code.

1

Later that day, deputies encountered defendant walking with Jasmeet Samra across a motel parking lot toward a fast food restaurant. Samra told deputies his identification was in the motel room, and they all went back to the room. In a trash can in the motel room, deputies found Ruiz’s stolen credit card and his ATM card. A scrap of paper in the room had the letters “Muf” and “Jess”; defendant’s nickname is “Muffin Man” and another person in the room when deputies arrived was named Jessie. In defendant’s pants pocket was a card key that appeared identical to the motel room card key in Samra’s possession and a folded piece of paper with Ruiz’s name and the account information, pin number and expiration date from Ruiz’s credit and ATM cards. Defendant was charged with acquiring Ruiz’s card access information without his consent and with intent to defraud (§ 484e, subd. (d) -- count 1), and with receiving stolen property, i.e., Ruiz’s stolen cards (§496, subd. (a) -- count 2). A jury found him guilty of both charges. The trial court ultimately selected the receiving stolen property charge as the primary conviction, sentenced defendant to prison for the upper term of three years, and committed him to jail under section 1170, subdivision (h); it also sentenced defendant to a three-year (upper) term on the theft conviction, to be served concurrently.2 DISCUSSION Courts have long held that one cannot be convicted of theft and receipt of the same property. (See People v. Love (2008) 166 Cal.App.4th 1292, 1298.) The Legislature codified this common law rule in section 496, subdivision (a), which states in pertinent part: “A principal in the actual theft of the property may be convicted pursuant to this