P. v. Tran

Filed 12/15/16 P. v. Tran CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
PHONG THANH TRAN,
Defendant and Appellant.
G051907
(Super. Ct. No. 14CF2804)
O P I N I O N
Appeal from a judgment of the Superior Court of Orange County, Beatriz
M. Gordon, Judge. Affirmed.
Stephen M. Hinkle, under appointment by the Court of Appeal, for
Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal,
Collette Cavalier and Elizabeth M. Carino, Deputy Attorneys General, for Plaintiff and
Respondent.

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Appellant was convicted of unlawfully driving or taking a vehicle and two
counts of receiving stolen property. (Veh. Code, § 10851, subd. (a); Pen. Code, §§ 496d,
subd. (a) & 496, subd. (a).)1 On appeal, he contends: 1) he was improperly convicted of
stealing and receiving the same property; 2) he should have only been convicted of one
count of receiving stolen property; 3) Proposition 47 applies to two of his convictions;
and 4) the police violated his Miranda rights (see Miranda v. Arizona (1966) 384 U.S.
436 (Miranda)) by not explaining them to him in Vietnamese. We reject these
contentions and affirm the judgment.
FACTS
On the night of August 23, 2014, appellant and two of his accomplices stole
a 2006 Mercedes from a shopping center in Santa Ana. That same evening, police
tracked the car to a house in Garden Grove where they saw appellant sitting in the vehicle
in the driveway. When appellant exited the car, an officer approached him and told him
to halt. Appellant stopped, turned around and threw an object into the bushes. The
object turned out to be a phone that belonged to the car owner’s girlfriend and was in the
car at the time it was stolen.
When questioned at the scene, appellant claimed the car belonged to a
friend. After he was arrested and taken into custody, though, he admitted stealing the car
with his two accomplices. He said they drove the vehicle to the house in Garden Grove
to purchase cocaine. When they arrived there, they parked on the street, but later
appellant moved the car into the driveway because it was parked illegally. According to
appellant, that was the only time he drove the vehicle. He admitted he and his cohorts
switched the car’s plates to avoid police detection.
Following a jury trial, appellant was convicted of unlawfully driving or
taking a vehicle, receiving a stolen vehicle, and receiving stolen property (the phone). He
1 Unless noted otherwise, all further statutory references are to the Penal Code.

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was also found to have served three prior prison terms. The trial court sentenced him to
seven years in prison.
DISCUSSION
Propriety of Dual Convictions for Unlawfully Driving or Taking a Vehicle
and Receiving a Stolen Vehicle
Appellant was convicted in count 1 of violating Vehicle Code section
10851, which states, “Any person who drives or takes a vehicle not his or her own,
without the consent of the owner thereof, and with the intent either to permanently or
temporarily deprive the owner thereof of his or her title to or possession of the vehicle . . .
is guilty of a public offense[.]” (Veh. Code, § 10851, subd. (a), italics added.) Thus, the
offense may be predicated on the theory that the defendant either drove or took the
subject vehicle. (People v. Garza (2005) 35 Cal.4th 866, 871.) In count 2, appellant was
convicted of violating section 496d, which makes it crime for a person to receive,
conceal, or withhold a stolen vehicle which he knows has been stolen. (§ 496d, subd.
(a).)
It is well established that a defendant cannot be convicted of stealing and
receiving the same property. (People v. Garza, supra, 35 Cal.4th at p. 874.) Consistent
with this rule, appellant’s jury was instructed it could not find appellant guilty of count 2
for receiving the stolen Mercedes if it believed he was guilty of count 1 for taking it. The
prosecutor explicitly acknowledged as much in her closing argument. However, based on
appellant’s statement that he did not drive the vehicle until well after it was stolen (when
he moved it from the street to the driveway), the prosecutor argued appellant was guilty
of count 1 for driving the vehicle, and therefore the jury could convict him of both counts
1 and 2, and ultimately that is what it did.
Appellant contends dual convictions were improper because the evidence
failed to establish his receipt of the stolen vehicle was completely divorced from the theft
of the vehicle. The “complete divorcement” requirement is applicable in cases where the

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defendant is convicted of both stealing and receiving the same property. (People v.
Garza, supra, 35 Cal.4th at pp. 874-875.) But in this case, it is apparent from the jury’s
verdict appellant was convicted on count 1 for unlawfully driving, not taking, the
victim’s car. Under those circumstances, the rule barring convictions for both stealing
and receiving the same property is inapt, and the complete divorcement requirement does
not come into play. (See id. at pp. 880-881; People v. Cratty (1999) 77 Cal.App.4th 98,
103; People v. Strong (1994) 30 Cal.App.4th 366, 375; People v. Austell (1990) 223
Cal.App.3d 1249, 1252.) Therefore, appellant’s convictions on both counts 1 and 2 were
proper.
Propriety of Dual Convictions for Receiving a Stolen Vehicle
and Receiving Stolen Property
Appellant also contends he was improperly convicted of counts 2 and 3. As
explained above, count 2 was based on appellant receiving, concealing, or withholding
the stolen Mercedes. (§ 496d, subd. (a).) And count 3 was based on appellant receiving,
concealing, or withholding stolen property that was inside the Mercedes, i.e., the cell
phone. (§ 496, subd. (a).) Appellant correctly points out that a single act of receiving
property that was stolen from multiple victims constitutes but one offense of receiving
stolen property. (People v. Lyons (1958) 50 Cal.2d 245, 275, overruled on other grounds
in People v. Green (1980) 27 Cal.3d 1.) He argues that principle compels reversal of
count 3 because he received the phone at the same time he received the Mercedes.
Appellant may have initially obtained the Mercedes and the phone at the
same time. Indeed, the evidence makes clear the phone was inside the car at the time it
was taken. However, in closing argument the prosecutor relied on appellant’s actions in
concealing, not receiving, the car as the basis for his guilt on count 2. Specifically, the
prosecutor asserted appellant was guilty of count 2 because he and his companions
concealed the car from the police by changing its license plates. Since appellant’s
receiving convictions were not based on a single act of receiving different items of stolen

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property at the same time, but instead arose from different acts that occurred at different
times, he was properly convicted of both counts 2 and 3.
Proposition 47
At the conclusion of the prosecution’s case, appellant moved to reduce all
three counts from felonies to misdemeanors pursuant to Proposition 47 on the basis there
was no evidence the value of the Mercedes or the phone exceeded $950. The trial court
granted the motion as to count 3, which involved the phone. However, the court denied
the motion with respect to counts 1 and 2, saying “it can be reasonably inferred that the
value of the 2006 silver, four-door Mercedes Benz did exceed [$]950.” Appellant
contends the court’s ruling was erroneous because the prosecution failed to prove the car
was worth more than $950. We uphold the ruling.
Proposition 47 was passed and became law in November 2014, five months
before appellant was tried. The statutory scheme it ushered in allows defendants who
have been convicted of a felony to apply for resentencing if the offense was based on
conduct that amounts to one of the misdemeanors enumerated in the statute. (§ 1170.18.)
More specifically, Proposition 47 applies to defendants who are “currently serving a
sentence” or have “completed” their sentence for a felony conviction. (Id., subds. (a) &
(f).) In this case, appellant made his Proposition 47 motion during his trial, before he was
convicted of a felony offense. Thus, he was not eligible for relief under the statute.
That might sound like a technicality, but it pertains importantly to
appellant’s broader argument. He contends that because his charges were based on
conduct that arguably falls within two of the misdemeanor offenses listed in Proposition
47 – petty theft of property valued at $950 or less (§ 490.2) and receiving stolen property
valued at $950 or less (§ 496, subd. (a), as amended by Proposition 47) – the prosecution
had the burden to prove otherwise. In other words, the prosecution had to establish the
value of the car he and his friends took and received was greater than $950.

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This argument overlooks the fact appellant was not charged with any
misdemeanor offenses. Rather, he was charged with felony violations of Vehicle Code
section 10851 and receiving stolen property. Thus, as far as the prosecution was
concerned, it was only required to prove the elements of those offenses. It was not
required to disprove appellant’s eligibility for relief under Proposition 47. In fact, as we
have pointed out, strictly speaking, appellant was not even eligible for Proposition 47
relief when he made his motion. Therefore, the prosecution was not required to prove
anything in terms of attempting to defeat the motion.
Appellant asserts due process and equal protection concerns compel a
different conclusion. However, as the courts have unanimously determined, there is
nothing unfair or unconstitutional about requiring the defendant to carry the burden of
proving his entitlement to relief under Proposition 47, particularly regarding the value of
the property he stole or received. (People v. Johnson (2016) 1 Cal.App.5th 953; People
v. Bush (2016) 245 Cal.App.4th 992; People v. Perkins (2016) 244 Cal.App.4th 129;
People v. Rivas-Colon (2015) 241 Cal.App.4th 444; People v. Sherow (2015) 239
Cal.App.4th 875.) Indeed, appellant could have easily supplied that information by way
of his own testimony or other admissible evidence. (Ibid.) The value of a heavily-traded
commodity should not be difficult to establish. Because appellant failed to carry his
burden in that regard, we have no occasion to disturb the trial court’s ruling.
Miranda Waiver
Lastly, appellant claims he did not knowingly and intelligently waive his
Miranda rights before confessing at the police station. The claim is based on the fact the
police read appellant his Miranda rights in English, as opposed to his native Vietnamese,
but we find appellant’s confession was properly admitted into evidence.
The applicable law is well established. “[T]o counteract the coercive
pressure inherent in custodial surroundings, ‘. . . police officers must warn a suspect prior
to questioning that he has a right to remain silent, and a right to the presence of an

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attorney. [Citation.] After the warnings are given, if the suspect indicates that he wishes
to remain silent, the interrogation must cease. [Citation.] . . . Critically, however, a
suspect can waive these rights. [Citation.] To establish a valid waiver, the [s]tate must
show that the waiver was knowing, intelligent, and voluntary under the ’high standar[d]
of proof for the waiver of constitutional rights . . . .’ [¶] ‘The prosecution bears the
burden of demonstrating the validity of the defendant’s waiver by a preponderance of the
evidence.’ [Citations.] In addition, ‘[a]lthough there is a threshold presumption against
finding a waiver of Miranda rights [citation], ultimately the question becomes whether
the Miranda waiver was [voluntary,] knowing[,] and intelligent under the totality of the
circumstances surrounding the interrogation.’ [Citation.] On appeal, we conduct an
independent review of the trial court’s legal determination and rely upon the trial court’s
findings on disputed facts if supported by substantial evidence. [Citation.]” (People v.
Williams (2010) 49 Cal.4th 405, 425.)
At the Miranda hearing in this case, appellant testified with the assistance
of a Vietnamese interpreter. He said he was born in Vietnam and attended school there
up until the third grade. In 1992, when he was 20 years old, he came to the United States
and lived with his parents in California. He took an English language class, obtained a
California driver’s license and also met his wife, who speaks English. He and his wife
moved to Iowa and then New Hampshire where they worked respectively as meat cutters
and cell phone assemblers. Upon returning to California, appellant worked steadily in the
construction industry. He has been married three times and has 10 children, including his
stepchildren.
Despite having lived in the United States for 22 years when the present case
arose, appellant testified he does not understand English and can only speak it a little bit.
Thus, when he was Mirandized and interviewed in English at the police station by Officer
James Marquez, he had no idea what Marquez was saying to him. Appellant also

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claimed Marquez gave him some sort of form to sign, and he signed it without knowing
what it said.
Marquez testified he did not attempt to obtain a written Miranda waiver
from appellant. Rather, he orally advised appellant of his Miranda rights in English. In
particular, Marquez advised appellant he had the right to remain silent, anything he said
could be used against him in court, he had a right to have an attorney present during
questioning, and if he could not afford an attorney one would be appointed to him. After
stating each right, Marquez asked appellant if he understood what it meant, and appellant
said yes. Appellant did not appear to have any difficulty understanding Marquez, nor did
he ask for a Vietnamese interpreter. Moreover, as the interview progressed, appellant
provided detailed and specific responses to Marquez’s questions about his role in the
purported auto theft. Appellant also admitted he had been arrested for prior vehicle
thefts. In fact, the court took judicial notice of guilty pleas appellant entered in two prior
cases. The pleas were memorialized on forms that were written in English but were
translated to appellant in Vietnamese by court certified interpreters.
In arguing appellant did not understand his Miranda rights, defense counsel
made much of the fact that his prior plea forms were interpreted in Vietnamese for him.
However, the trial court did not believe that was particularly telling of appellant’s ability
to understand English because courts often error on the side of caution in appointing
interpreters if there is any question as to the defendant’s proficiency in English. In the
trial court’s view, the plea forms actually undermined appellant’s Miranda claim because
they reflected his prior exposure to and understanding of his legal rights, even though
they were explained to him in Vietnamese. The trial court also noted that during his
cross-examination, appellant began answering some of the prosecutor’s questions before
the interpreter even started to interpret them for him. And, he appeared to have no
difficulty understanding English when the police questioned him at the scene and while
he was in custody. In the end, the court simply did not believe appellant’s claim he

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lacked the ability to understand his Miranda rights when Marquez read them to him in
English. Instead, the court was convinced by a preponderance of the evidence that
appellant knowingly and intelligently waived those rights.
This finding is supported by substantial evidence. Given appellant’s
background and everything he said in connection with this case, including his affirmative
responses when asked if he understood his Miranda rights, we have no occasion to
disturb the trial court’s ruling. Exercising our independent judgment on this issue, we
conclude appellant validly waived his Miranda rights, and his pretrial statements were
properly admitted into evidence.
DISPOSITION
The judgment is affirmed.
g-
BEDSWORTH, ACTING P. J.
WE CONCUR:
MOORE, J.
IKOLA, J.

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