People v. Ambriz CA4/1

Filed 11/5/15 P. v. Ambriz CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D067732
Plaintiff and Respondent,
v. (Super. Ct. No. SCS272474)
CARLOS AMBRIZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Edward P.
Allard III, Judge. Affirmed as modified, with directions.
Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler and Julie L. Garland,
Assistant Attorneys General, Eric A. Swenson, Lynne G. McGinnis and Kristine A.
Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Carlos Ambriz was convicted of two counts of receiving stolen
property (counts 2, 8; Pen. Code,1 § 496, subd. (d)); two counts of unlawfully taking and
driving a vehicle (counts 3, 13; Veh. Code, § 10851, subd. (a)); burglary of a motor
vehicle (count 9; § 459); attempted unlawful taking and driving of a vehicle (count 10;
§ 664; Veh. Code, § 10851); and attempted grand theft of an automobile (count 11;
§§ 664, 487, subd. (d)(1). Counts 10 and 11 are based on attempts to unlawfully take the
same vehicle. Ambriz also admitted two prior prison term enhancements were true.
(§ 667.5, subd. (b).)
The Court sentenced Ambriz to a total term of five years eight months in county
jail, consisting of the following consecutive terms: two years on count 2; eight months
each on counts 3, 8, 9, and 13; and one year for one of the prior prison enhancements.
The court imposed a 12-month custodial midterm on counts 10 and 11, but stayed each
pursuant to section 654.
DISCUSSION
On appeal, Ambriz contends his conviction for attempted unlawful taking of a
vehicle charged in count 10 must be reversed because it is a lesser included offense of
attempted grand theft of a vehicle charged in count 11. Respondent properly concedes
the point. A defendant cannot be convicted of grand theft of an automobile and unlawful
driving or taking of a vehicle where, as here, both offenses are based on the same act.
(People v. Barrick (1982) 33 Cal. 3d 115, 128.) An attempt to commit either offense
1 All statutory references are to the Penal Code unless otherwise stated.
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requires the defendant to take a "direct but ineffective step toward committing" the
offense with the intent to commit that offense. (See CALCRIM No. 460 [Attempt];
§ 664.) It therefore follows that attempted unlawful driving or taking of a vehicle is a
lesser included offense of attempted grand theft of an automobile when both crimes are
based on the same act, the attempted unlawful taking of the same vehicle.
DISPOSITION
The judgment is modified by striking the conviction for attempted unlawful
driving or taking of a vehicle (§ 664; Veh. Code, § 10851) as charged in count 10. As so
modified, the judgment is affirmed. The trial court is directed to prepare an amended
abstract of judgment and to forward the amended abstract of judgment to the San Diego
County Sheriff's Department.
PRAGER, J.*
WE CONCUR:
NARES, Acting P. J.
AARON, J.
* Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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