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People v. Calistro

California Court of Appeals, Fifth District

June 2, 2017

THE PEOPLE, Plaintiff and Respondent,
DAVID MARTIN CALISTRO, Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of Kern County No. BF153533A. Harry (Skip) A. Staley, Judge. (Retired Judge of the Kern Sup. Ct. assigned by the Chief Justice pursuant to article VI, § 6 of the Cal. Const.)

          Jyoti Malik, under appointment by the Court of Appeal, for Defendant and Appellant.

          Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Carlos A. Martinez, Deputy Attorney General, for Plaintiff and Respondent.


          KANE, Acting P.J.

         Defendant David Martin Calistro raises four issues on appeal. He requests that we independently review the records reviewed by the trial court on his Pitchess motion[1] and determine whether the trial court abused its discretion by not providing him access to more of those records. He also contends he was erroneously convicted under Penal Code section 666.5, subdivision (a)[2] (hereafter § 666.5(a)) and was erroneously convicted of both stealing a car and receiving the stolen property inside the car. Lastly, he contends the trial court should have stayed one of his terms pursuant to section 654. We vacate the sentence and remand for resentencing.


         On February 27, 2014, the Kern County District Attorney filed a complaint against defendant charging him with receiving a stolen vehicle (§ 496d, subd. (a) (hereafter § 496d(a)); count 1); unlawfully driving or taking a vehicle (Veh. Code, § 10851, subd. (a) (hereafter Veh. Code, § 10851(a));[3] count 2); receiving a stolen vehicle (§ 496d(a); count 3); possessing a burglary tool (§ 466; count 4, a misdemeanor); and driving with a suspended license (Veh. Code, § 14601.2, subd. (a); count 5, a misdemeanor). The complaint also alleged in connection with counts 1 through 3 that defendant had served a prior prison term (§ 667.5, subd. (b)) for a 2005 conviction under section 496d(a).

         At the preliminary hearing on April 11, 2014, the trial court granted the prosecutor's motion to add a section 666.5(a) enhancement to count 1.

         On April 16, 2014, the district attorney filed an information charging defendant with unlawfully driving or taking a vehicle, having been previously convicted of receiving a stolen vehicle (§ 666.5(a); count 1);[4] receiving a stolen vehicle (§ 496d(a); count 2); unlawfully driving or taking a vehicle (Veh. Code, § 10851(a); count 3); receiving stolen property (§ 496, subd. (a) (hereafter § 496(a)); count 4); possessing a burglary tool (§ 466; count 5, a misdemeanor); and driving with a suspended license (Veh. Code, § 14601.2, subd. (a); count 6, a misdemeanor). The information also alleged in connection with counts 1 through 4 that defendant had served a prior prison term (§ 667.5, subd. (b)) for a 2005 conviction under section 496d(a).

         On April 30, 2014, defendant made a Pitchess motion requesting disclosure of personnel records relevant to Bakersfield Police Officer Tiffany Beltran's dishonesty. On May 27, 2014, the trial court conducted an in camera hearing and ordered some records disclosed.

         On August 18, 2014, defendant pled no contest to driving with a suspended license (Veh. Code, § 14601.2, subd. (a); count 6, a misdemeanor). He also admitted the prior prison term allegation (§ 667.5, subd. (b)) connected to counts 1 through 4. The trial court explained that the allegation would add a year to any sentence he received, and it would also increase the penalty range for a section 666.5(a) conviction from 16 months/two years/three years to two years/three years/four years. Defendant stated he understood he was admitting the allegation was true.

         Defendant went to trial on the remaining charges. Before the verdict forms were submitted to the jury, the counts were renumbered as follows: count 1 was renumbered to count 5; count 2 was renumbered to count 1; count 3 was renumbered to count 2; count 4 was renumbered to count 3; and count 5 was renumbered to count 4. The jury returned guilty verdicts on unlawfully driving or taking a vehicle (Veh. Code, § 10851(a); count 2); receiving stolen property (§ 496(a); count 3); and possessing a burglary instrument (§ 466; count 4, a misdemeanor). No verdict form on the section 666.5(a) charge (count 5) was submitted to the jury, and the jury was not polled on any findings related to this charge.

         The trial court sentenced defendant to four years in prison as follows: three years on the section 666.5(a) conviction (count 5); two years on the Vehicle Code section 10851(a) conviction, to be stayed pursuant to section 654 (count 2);[5] two concurrent years on the section 496(a) conviction (count 3); and one year for the prior prison term enhancement (§ 667.5, subd. (b)).


         On February 24, 2014, at about 9:30 p.m., Peter B. was in his upstairs apartment on either Lincoln Avenue or Lincoln Street in Bakersfield[6] when he heard his car start in the parking space below him. He heard the car take off, and when he reached his balcony, he saw his Honda Accord going north down the alley. He could not see who was driving because the car's windows were tinted. He had locked the car, leaving his wallet inside. His wallet contained his driver's license, bank cards, and CalFresh card. His child's cell phone was also in the car. He had not given anyone permission to take his car, his wallet, or his wallet's contents. He jumped into another car and drove around looking for his car for about an hour. Meanwhile, his mother-in-law called the police.

         About five hours later, at around 2:30 a.m., Kern County Sheriff's Deputy Lorena Morales approached a Honda Accord at a 7-Eleven store at the corner of Chester and Day Avenues, less than five miles from Peter's apartment.[7] Defendant was sitting in the driver's seat and the car was turned off. It was parked near a gas pump, but gas was not being pumped. Deputy Morales searched defendant and found credit cards in his pockets, all of them bearing Peter's name.[8] An Acura key was in the car's ignition. The key was a shaved key, made to fit many vehicles and commonly used to steal vehicles. At this point, Deputy Morales turned the investigation over to the police.

         When Officer Beltran arrived, defendant was seated in the back of a deputy's patrol vehicle. The Honda Accord was still parked at a gas pump. Deputy Morales gave Officer Beltran the shaved Acura key and the three cards bearing Peter's name. Officer Beltran explained that shaved keys can sometimes start older model Hondas. When Officer Beltran searched the car, she found a wallet containing Peter's driver's license and also a cell phone, both on the front passenger seat. She read defendant his Miranda[9]rights and he agreed to talk. He said the car belonged to his friend, Ben. He would not give Ben's last name. Defendant said he had borrowed the car from Ben in Alta Vista a few hours earlier and he drove it until it ran out of gas at the 7-Eleven. Officer Beltran asked him to whom the credit cards belonged. He said, “[T]he owner of the car, I guess.”

         Defense Evidence

         Defendant testified on his own behalf. He said he was 29 years old and had lived in Bakersfield his whole life. He rented an apartment and had a job. He was making payments on his own vehicle.

         On February 24, 2014, defendant was relaxing at home. At about 8:00 p.m., he went to a barbecue with some friends in the Alta Vista part of town, on the corner of Alta Vista and Linden.[10] His girlfriend dropped him off on her way to work. At the barbecue, he saw Ben, a friend of a friend. Ben's last name might have been Sanchez. Defendant drank at the barbecue, but he was sober, so he volunteered to go to the store to get more beer. Ben, who was intoxicated, gave him his keys and told him to come right back. Defendant did not have his own car, so he took Ben's car to the 7-Eleven. He trusted Ben. Defendant left the barbecue at about 12:30 a.m. He did not run out of gas; he put $5 or $10 worth of gas in the car at the 7-Eleven after prepaying with cash. He sat in the car for five or 10 minutes while he pumped gas and talked to his girlfriend on the phone. As he was talking on the phone, Deputy Morales approached him and asked him how long he had been sitting there because the 7-Eleven clerk was concerned. He told her he had just finished pumping gas and was getting ready to leave. Deputy Morales walked back to her vehicle. Defendant continued talking on the phone in the car. After about five minutes, Deputy Morales returned and asked him to get out of the car and put his hands behind his back. When he asked her why, she told him the car had been reported stolen. He told her he had only borrowed the car, which belonged to his friend, Ben, and he had just gone to the store. He did not tell her he had gotten the car a few hours earlier because he had actually gotten it only 20 or 30 minutes earlier. He did not tell her that he was homeless and had nowhere to go, or that he drove the car until it ran out of gas. When he said the credit cards in the car must belong to the owner, Ben, he had no idea the cards bore a name other than Ben's.

         Defendant denied ever speaking to Officer Beltran. Furthermore, he never had the credit cards in his pocket. He did not see the credit cards until the car was searched. The keys Ben had given him looked normal and the car key worked. He did not suspect anything. Had he known the car was stolen, he would not have taken the keys and driven the car.

         Defendant admitted he had been convicted of theft-related offenses in 2005 and 2011. He said he did not steal this car because he did not need to. He had been working since 2011 and he would not risk his job or anything else by stealing a car or driving a stolen car.

         On cross-examination, defendant said he did not notice the Acura symbol on the car key because it looked like a Honda key. It took him about 15 minutes to drive from the barbecue to the 7-Eleven, so he must have been guessing about leaving the barbecue at 12:30 a.m. because Deputy Morales approached him at 2:30 a.m. He never mentioned to Deputy Morales or Officer Beltran that he had been at the barbecue. Neither Deputy Morales nor Officer Beltran found the credit cards on his person. And he did not speak to Officer Beltran or receive his Miranda rights from her. Defendant said the shaved key looked like a normal key, and an Acura key could start a Honda if the ignition had been swapped.


         I. Pitchess Motion[*]

         Before trial, defendant made a Pitchess motion requesting disclosure of Officer Beltran's personnel records relevant to dishonesty, including false statements in reports, false testimony, and any other evidence or complaints of dishonesty. The trial court granted the motion for an in camera review. After reviewing the records, the court ordered three records disclosed. We have reviewed the records and see no abuse of discretion.

         “A criminal defendant has a limited right to discovery of a peace officer's personnel records. [Citation.] Peace officer personnel records are confidential and can only be discovered pursuant to Evidence Code sections 1043 and 1045.” (Giovanni B. v. Superior Court (2007) 152 Cal.App.4th 312, 318.) “[O]n a showing of good cause, a criminal defendant is entitled to discovery of relevant documents or information in the confidential personnel records of a peace officer accused of misconduct against the defendant. [Citation.] Good cause for discovery exists when the defendant shows both ‘ “materiality” to the subject matter of the pending litigation and a “reasonable belief” that the agency has the type of information sought.' [Citation.] … If the defendant establishes good cause, the court must review the requested records in camera to determine what information, if any, should be disclosed. [Citation.] Subject to certain statutory exceptions and limitations [citation], ‘the trial court should then disclose to the defendant “such information [that] is relevant to the subject matter involved in the pending litigation.” ' ” (People v. Gaines (2009) 46 Cal.4th 172, 179.)

         A trial court's decision on a Pitchess motion is reviewed under an abuse of discretion standard. (People v. Prince (2007) 40 Cal.4th 1179, 1285.) The exercise of that discretion “must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.” (People v. Jordan (1986) 42 Cal.3d 308, 316.) We review the record for “materials so clearly pertinent to the issues raised by the Pitchess discovery motion that failure to disclose them was an abuse of Pitchess discretion.” (People v. Samayoa (1997) 15 Cal.4th 795, 827.) The record of the trial court's in camera hearing is sealed, and appellate counsel are not allowed to see it. (See People v. Hughes (2002) 27 Cal.4th 287, 330.) Thus, on request, the appellate court must independently review the sealed record. (People v. Prince, supra, at p. 1285.)

         After reviewing the file of confidential records and the transcript of the in camera hearing, we have found no abuse of discretion committed by the trial court in its choice of which records to disclose and which not to disclose. The court appropriately disclosed the records relevant to the litigated matter.

         II. Section 666.5(a) Conviction[*]

         Defendant contends he should not have been convicted under both Vehicle Code section 10851(a) and section 666.5(a). He argues that section 666.5(a) does not describe a substantive offense, but instead increases the punishment for a Vehicle Code section 10851(a) conviction. The People concede. We agree in theory, but conclude reversal is not necessary.

         Section 666.5(a) imposes greater punishment on car thieves who have prior convictions for related conduct.[11] For example, a defendant with a prior felony conviction for vehicle theft or receiving a stolen vehicle may be punished for two years/three years/four years, rather than the usual 16 months/two years/three years, upon his conviction of a similar offense. (§ 666.5(a).) As the parties recognize, section 666.5(a) does not define a new offense, but merely increases the punishment for the crime. (People v. Young (1991) 234 Cal.App.3d 111, 113, 115 [§ 666.5(a) does not define a new offense, following People v. Bouzas (1991) 53 Cal.3d 467, 478, which held petty theft with a prior (§ 666) is not an enhancement provision, nor is the prior conviction an element of the offense; rather, the statute specifies punishment for the present offense and makes the prior conviction a sentencing factor]; People v. Demara (1995) 41 Cal.App.4th 448, 452, 455 [§ 666.5(a) imposes a greater base term, not an enhancement; hence, the same prior conviction may be used both to impose an elevated sentence under § 666.5(a) and to enhance the sentence under § 667.5]; see People v. Robinson (2004) 122 Cal.App.4th 275, 281 [§ 666 does not establish a separate substantive offense or enhancement, but rather establishes an alternate and elevated penalty].) Consequently, conviction under section 666.5(a) is not possible.

         In this case, the jury was never instructed on the section 666.5(a) charge (count 5) and was not given a verdict form on that count. Thus, there was no jury finding to support a section 666.5(a) conviction, which would have been improper at any rate. The parties understandably assume a conviction exists because the trial court proceeded to sentence defendant on the nonexistent conviction.

         Because there is no conviction to reverse, we will vacate the sentence and remand to the trial court for resentencing, with directions to sentence the Vehicle Code section 10851(a) conviction (count 2) pursuant to the sentencing provision of section 666.5(a). The corrected abstract of judgment shall not include a conviction under section 666.5(a).

         III. Section 496(a) Conviction

         Defendant contends that the “single larceny doctrine” bars his conviction for receiving the stolen credit cards under section 496(a) (count 3) because he came into possession of the credit cards at the same time he stole the car containing them. As relevant here, the single larceny doctrine holds that when a defendant steals multiple items during the course of a single act or indivisible transaction involving a singlevictim, he commits only one theft, notwithstanding the number of items he steals. (People v. Ortega (1998) 19 Cal.4th 686, 699, ...

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