Error and/or relief
The sentence on count 1 is unauthorized because no findings were ever made, either by the jury or the court, as to whether the defendant was previously convicted of a qualifying prior vehicle theft offense within the meaning of Penal Code section 666.5(a). On remand, the court shall also address whether one count should be stayed under section 654. It should be noted that the minute order incorrectly states that the defendant admitted the prior conviction.
First Holding:
Penal Code section 666.5(a) provides that a person convicted of a felony violation of Vehicle Code section 10851 who has been previously convicted of any of several enumerated sections of the Vehicle Code shall be punished by increased by a higher triad than the usual for section 10851. Though the defendant admitted three prior strike convictions, they were not the prior convictions relied on for the PC 666.5 allegation. In the absence of any findings on the allegation, the sentence is unauthorized and exceeded the court’s jurisdiction.
Authority:
PEN 666.5
People v. Neal (1993) 19 Cal.App.4th 1114, 1120
Second Holding:
The record does not reflect that the defendant personally admitted the one strike prior, as required by the law. Every plea shall be entered or withdrawn by the defendant himself or herself in open court.
Authority:
PEN 1018
People v. Hofferber (1977) 70 Cal.App.3d 265, 268
Third Holding:
The minute order indicates the defendant admitted the prior strike, but we generally resolve conflicts between the reporter’s and clerk’s transcript in favor of the reporter’s transcript.
Authority:
In re Merrick V. (2004) 122 Cal.App.4th 235, 249
Fourth Holding:
A defendant may be charged with—and in some cases convicted of—multiple crimes arising out of the same conduct but cannot receive multiple punishments for the same act or omission. Concurrent sentences based on one act or an indivisible course of conduct violate the rules against double punishment. The defendant asserts the chains and stabilizing bars referenced in count 4 were used to tow the motorhome, that any taking or receiving of them was part of one continuous act, and that the court therefore should have stayed the sentence on count 4. The People concede, and we agree, that the matter can be addressed on remand.
Authority:
PEN 654
PEN 954
People v. Reed (2006) 38 Cal.4th 1224, 1226−1227
People v. Jones (2012) 54 Cal.4th 350, 353