People v. Orozco CA1/1

Filed 3/26/15 P. v. Orozco CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent, A140569, A140714
v. (Sonoma County
JOSE ANGEL OROZCO, Super. Ct. Nos. SCR-603260, SCR-
632425, SCR-633535)
Defendant and Appellant.
Jose Angel Orozco was charged with 10 counts and pleaded no contest to three of
them. Count X, one of the counts to which Orozco pleaded no contest, was for a
violation of Penal Code1 section 666.5, subdivision (a). Orozco argues the sentence
imposed for count X must be reversed because section 666.5 describes a sentencing
scheme, not an offense, and because he did not admit to a prior felony conviction, a
necessary element for the imposition of a sentence under section 666.5, subdivision (a).
We find the arguments unavailing and affirm.
I. BACKGROUND
Between February and May 2013, various people in and around Sonoma County
reported incidents of stolen property, including stolen automobiles, electrical wire, power
tools, trailers, and jewelry. Orozco had been seen at the locations from which the
property was taken, and some of the stolen property was found in storage units rented by
Orozco. Orozco was charged with 10 counts, and pled no contest to counts II, VII,
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All statutory references are to the Penal Code unless otherwise indicated.
and X. Count X is at issue here. In the operative charging complaint, count X states
Orozco violated section 666.5 in that “he did unlawfully buy and receive FLAT BED
TRAILER . . . ; 1987 PICKUP TRUCK . . . ; 1995 BRACO CARGO TRAILER . . . and
[sic] had been obtained in a manner constituting theft and extortion, knowing the property
to be stolen and obtained, and did conceal, sell, withhold, and aid in concealing, selling
and withholding said property.” The complaint also alleged Orozco was previously
convicted for a violation of Vehicle Code section 10851, subdivision (a), and he served a
prison term as described in Penal Code section 667.5, subdivision (b) for that offense.
The court imposed a six-year term on count X, which the court described as “the middle
term doubled because of the strike.”
II. DISCUSSION
Count X alleges Orozco violated section 666.5, which provides: “Every person
who, having been previously convicted of a felony violation of Section 10851 of the
Vehicle Code, . . . or a felony violation of Section 496d . . . , is subsequently convicted of
any of these offenses shall be punished by imprisonment . . . for two, three, or four
years.” (Id., subd. (a).) Orozco contends his plea of no contest to count X does not
constitute a conviction for an offense since section 666.5 merely sets forth a sentencing
scheme. We agree the charging complaint identifies the wrong statute, but that defect
does not warrant reversal.
As Orozco concedes, an accusatory pleading need not specify the code section
under which a defendant is charged, and even a reference to the wrong code section may
be viewed as immaterial. (People v. Gerber (2011) 196 Cal. App. 4th 368, 388.) Under
section 952, “In charging an offense, each count shall contain, and shall be sufficient if it
contains in substance, a statement that the accused has committed some public offense
therein specified.” Further, section 960 provides: “No accusatory pleading is
insufficient, nor can the trial, judgment, or other proceeding thereon be affected by reason
of any defect or imperfection in matter of form which does not prejudice a substantial
right of the defendant upon the merits.” “[R]easonable doubts in determining the identity
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of the offense charged are to be resolved in the defendant’s favor.” (People v. Schueren
(1973) 10 Cal. 3d 553, 558.)
Here, resolving all reasonable doubts in Orozco’s favor, the crime charged in
count X is clearly the purchase or receipt of stolen vehicles and trailers with knowledge
the property was stolen. No speculation is necessary as the charging complaint
specifically describes the offense, and the language used in the complaint is substantially
similar to section 496d, which is referenced by section 666.5 and does define a
punishable offense. Specifically, section 496d, subdivision (a) states: “Every person
who buys or receives any motor vehicle . . . [or] any trailer . . . that has been stolen or that
has been obtained in any manner constituting theft or extortion, knowing the property to
be stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or
withholding any motor vehicle [or] trailer . . . shall be punished by imprisonment.”
Accordingly, there is no support for Orozco’s contention that the charging complaint
failed to specify in any way what offense he was charged with in count X.2
Orozco also argues that even if he pleaded no contest to an offense in count X, his
plea still does not establish all of the facts necessary for the imposition of a sentence
under section 666.5, subdivision (a). In relevant part, that statute requires the prosecution
to prove (1) the defendant violated Vehicle Code section 10851 or Penal Code
section 496d, and (2) the defendant has been previously convicted of a felony violation of
one of these provisions. (§ 666.5, subd. (a).) Orozco asserts his sentence must be
overturned because he did not admit his prior conviction for violating Vehicle Code
section 10851, subdivision (a) was a felony. Not so. The allegations of the charging
complaint, to which Orozco pleaded no contest, assert he was previously convicted for
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Orozco’s contention that the trial court failed to specify the offense at the plea
hearing also lacks merit. At the hearing, the trial court expressly referenced count X and
described the offense as follows: “[O]n the 1st day of May, 2013, you violated
section 666.5 of the Penal Code in that you had in your possession a flat bed trailer . . . , a
1987 pickup truck . . . , a 1995 Braco cargo trailer . . . and that . . . property had been
stolen and you knew it had been stolen.” Orozco then pleaded no contest to these
allegations.
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violating section 10851, subdivision (a), and that he served a prison term described in
Penal Code section 667.5, subdivision (b) for that offense. As section 667.5,
subdivision (b) describes the prison term for certain felonies, it can be inferred Orozco
admitted to a prior felony violation of Vehicle Code section 10851.3
III. DISPOSITION
The judgment is affirmed.
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Orozco suggests the content of the charging complaint is irrelevant since he did
not admit to the prior prison term allegation in open court at the plea hearing. But at the
plea hearing, Orozco did admit he suffered a conviction for a violation of Vehicle Code
section 10851. To the extent there was any ambiguity in this admission, Orozco clarified
it in his sentencing brief, where he “admitted a prior prison commitment pursuant to
Penal Code Section 667.5[, subdivision] (b), from March 1, 2006, for violation of Vehicle
Code Section 10851[, subdivision] (a).”
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_________________________
Margulies, J.
We concur:
_________________________
Humes, P.J.
_________________________
Dondero, J.
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