Appeal from a judgment of the Superior Court of Orange County, M. Marc Kelly, Judge. Affirmed in part as modified, and reversed in part. (Super. Ct. No. 07CF0009).
The opinion of the court was delivered by: Fybel, J.
CERTIFIED FOR PUBLICATION
Defendant Salvador Magallanes appeals from a judgment of conviction of carjacking and receipt of stolen property. Defendant argues the trial court erred in failing to grant his motion for a judgment of acquittal. We conclude, to the contrary, there was sufficient evidence defendant committed the carjacking by use of force or fear, and we affirm the conviction for carjacking.
Defendant also argues he was improperly convicted of both carjacking and receipt of stolen property because the stolen property was the same car taken during the carjacking. We agree. Based on the language of the applicable statutes, the essence of the crime of carjacking, like that of theft and robbery, is the taking of the personal property of another. Penal Code section 496, subdivision (a) prohibits a conviction for both theft and receipt of the same stolen property. Therefore, we hold defendant could not be convicted of both carjacking and receipt of stolen property when the stolen property is the vehicle taken in the carjacking. Accordingly, we reverse defendant's conviction for receipt of stolen property. We publish this as a case of first impression on the applicability of section 496, subdivision (a) to the crime of carjacking.
Finally, defendant argues, and the Attorney General concedes, that defendant is entitled to two additional days of presentence custody credits. We direct the trial court to modify the judgment accordingly.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
Kelly Waterman left work about 5:40 p.m. on November 10, 2006. She moved her car, a black 1995 four-door Mercedes-Benz S500, from the parking lot to a spot in front of her office building. Waterman left the driver's side door open and the car engine running, and opened the rear passenger side door to put her son in his child car seat. Waterman heard a "revving sound," looked up, and saw defendant in the driver's seat trying to get the car in gear. Waterman was scared, shocked, mad, and worried; she feared for her safety and the safety of her son. Waterman pulled her son back out of the car. She then tried to open the front passenger door, which was locked, and banged on the door while screaming and cursing at defendant. Defendant never turned around or said anything to Waterman. After 10 or 15 seconds, defendant got the car in gear and drove away. Waterman ran back into her office, hit the panic button on the alarm system, and called the police.
On December 26, 2006, Santa Ana Police Officer Brandon Sontag encountered defendant in a motel parking lot about 2:43 a.m. Defendant gave Officer Sontag permission to search him; Officer Sontag found a Mercedes-Benz car key in defendant's right front pocket. The key belonged to a black 1995 four-door Mercedes-Benz S500, which had paper license plates and was parked four parking spaces from where Officer Sontag encountered defendant. Officer Sontag ran the vehicle identification number on the Mercedes, and learned it belonged to Waterman and her husband.
Defendant was charged in an information with carjacking (Pen. Code, § 215, subd. (a)) and receiving stolen property (id., § 496, subd. (a)). Defendant was convicted of both counts. The trial court sentenced defendant to the midterm of five years in prison for the carjacking count, and stayed the sentence on the receipt of stolen property count, pursuant to Penal Code section 654. Defendant received 518 days of presentence custody credits. Defendant timely appealed.
I. THE TRIAL COURT DID NOT ERR BY DENYING DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL UNDER PENAL CODE SECTION 1118.1, BASED ON THE SUFFICIENCY OF THE EVIDENCE OF CARJACKING
After the prosecution's case-in-chief and before presenting his case, defendant moved for a judgment of acquittal under Penal Code section ...