Filed 2/26/13 P. v. Vorabduth 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D061714

Plaintiff and Respondent,

v. (Super. Ct. No. SCE309645)

JAN VORABDUTH,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Patricia K.

Cookson, Judge. Affirmed in part and reversed in part with directions.

A jury found Jan Vorabduth guilty of two counts of residential burglary (Pen.

Code, §§ 459, 460;1 counts 1 and 4) with another person, other than an accomplice,

present in the residence during the burglary in count 1 (§ 667.5, subd. (c)(21)), and three

counts of receiving stolen property (§ 496, subd. (a); counts 6, 7 and 8). The court

sentenced Vorabduth to six years in prison: the four-year middle term on count 1, one

1 All further statutory references are to the Penal Code. year four months (one-third the middle term) on count 4, eight months (one-third the

middle term) on count 6 and concurrent two-year middle terms on counts 7 and 8.

Vorabduth appeals, contending her convictions on two of the counts of receiving stolen

property must be reversed because there was no evidence she received stolen property on

more than one occasion, and the $200 court operations assessment therefore must be

reduced to $120 (§ 1465.8). We agree with both contentions.

THE BURGLARIES IN COUNTS 1 AND 4

The burglary in count 1 took place on the afternoon of February 17, 2011, in

Bonita. The burglary in count 4 took place on the morning of March 11, in Spring

Valley. The homeowners were present in each case. They identified Vorabduth as the

burglar and described her vehicle. During the burglary in count 1, Vorabduth was

accompanied by a man.

THE BURGLARIES IN COUNTS 2, 3 AND 5

The jury rendered not guilty verdicts on three counts of residential burglary. In

count 2, Vorabduth was charged with a March 7, 2011, burglary of the Garber family

home in San Diego. In count 3, she was charged with a March 10 burglary of the Marallo

family home in Jamul. In count 5, she was charged with a March 14 burglary of the

White family home in La Mesa. There were no witnesses to these burglaries. Later, the

homeowners discovered property missing from their homes. The Garbers' missing

property included a television set, silver, jewelry boxes and jewelry. The Marallos'

missing property included a safe containing their passports, Social Security cards, other

personal papers and commemorative coins; shoes; purses; a suitcase; a computer

2 backpack; and jewelry. The Whites' missing property included computers, cameras and

jewelry.

RECEIVING STOLEN PROPERTY

Based on information from the Spring Valley burglary victim, a deputy sheriff

identified Vorabduth as a burglary suspect. On the night of March 19, 2011, a police

officer found Vorabduth sitting in the driver's seat of a vehicle matching the descriptions

given by the victims in counts 1 and 4. The vehicle contained a large amount of clothing;

shoes; bags; cosmetics; coin collections in boxes, in trash bags and duffel bags; jewelry;

cameras; and other items. Sheriff's deputies arrested Vorabduth, impounded her vehicle

and delivered some of the contents to Detective William Kerr.

Through an engraving, Detective Kerr identified the Garbers as the owners of one

of the pieces of jewelry. Detective Kerr linked the burglary of the Garbers' home to the

burglaries of the Marallos' and Whites' homes through a computer search for similar

crimes. Detective Kerr called the three families, and they met with him, separately, at the

sheriff's station. The Garbers identified more than 50 pieces of jewelry, including the

engraved piece, as theirs. The Marallos recovered some of the property stolen from their

house, including coin collections, shoes, a camera bag, camera equipment, a GPS device

and jewelry. The Whites recovered some of their jewelry and an iPod.

THE DEFENSE CASE

Vorabduth testified she went to the Bonita house on February 17, 2011, and the

Spring Valley house on March 11, 2011, because her friend Michael had asked her to

3 pick him up at those addresses. He was going to accompany her to obtain drugs.

Vorabduth denied committing any of the five burglaries.

Vorabduth next saw Michael on the night of Friday March 18, 2011. They were at

a party smoking methamphetamine and drinking alcohol. He gave her two bags and told

her to get whatever she could for them. She put the bags in her car. She had a feeling the

contents of the bags had been stolen. As she was driving away, she looked in the bags

and found electronics, coin collections, jewelry and cameras.

DISCUSSION

Vorabduth contends the amended information alleged she committed the three

counts of receiving stolen property on the same date, and the record contains

uncontradicted evidence she received all of the stolen property on one occasion, in a

single transaction. She concludes her convictions on two of the receiving stolen property

counts must be reversed as unsupported by substantial evidence.

" '[T]he legal . . . character of the act [of receiving stolen property] is [not] affected

in any way by the fact that the stolen property may have belonged to several persons

rather than to a single person.' " (People v. Morelos (2008) 168 Cal.App.4th 758, 763

(Morelos), quoting People v. Smith (1945) 26 Cal.2d 854, 859.) " '[B]ut one offense of

receiving stolen property is shown, although the goods were stolen from different

sources,' where the evidence shows that the defendant received two items of stolen

property 'on a single occasion.' " (Morelos, at p. 763, quoting People v. Lyons (1958) 50

Cal.2d 245, 275.) Conversely, "where the receiving counts involve different property

stolen from different victims at different times and where nothing in the record shows

4 [the defendants] received the property on a single occasion, 'the record reasonably

supports the inference that appellant[s] received the various stolen goods at different

times and in different transactions. ' " (Morelos, at p. 763, quoting People v. Bullwinkle

(1980) 105 Cal.App.3d 82, 92.)

In People v. Mitchell (2008) 164 Cal.App.4th 442 (Mitchell), the defendant was

convicted of four counts of receiving stolen property, including checks belonging to her

employer, Billy C. (count 17), and a Discover card belonging to Billy's late wife, Barbara

C. (count 21). (Id. at pp. 446-447, 461.) The two offenses were alleged to have occurred

on or about December 20, 2004, the day the checks and the Discover card were found in

a stolen Mitsubishi. (Id. at pp. 449, 461.) On appeal, the People conceded counts 17 and

21 were duplicative (id. at p. 462) and the court reversed the conviction on count 21 (id.

at p. 463). The court stated: "[T]he mere fact the checks and credit card were withheld

or concealed from the rightful owner by defendant at the same time, i.e., the day they

were found in the Mitsubishi, does not preclude conviction for multiple counts of

receiving stolen property. If the evidence showed those items had been received by

defendant on different occasions, presumably multiple convictions would be permitted."

(Id. at p. 462.) The court noted "there is nothing in the record to suggest the People had

any evidence as to when defendant came into possession of [the property]. . . .

[¶] Defendant was charged in counts 17 [and] 21 . . . in the alternative with buying,

receiving, concealing, selling, withholding, or aiding in concealing or withholding

property. No evidence was presented as to defendant's buying, receiving, or selling any

of the property. Thus, on each count, defendant's guilt turned on when she concealed or

5 withheld the property from its owner. In her argument to the jury, the prosecutor

explained these counts were based on defendant's possession of the property, i.e., her

concealing or withholding the property, on the indicated day[]. . . . [¶] [T]he People were

required to prove defendant concealed or withheld the property . . . at the time alleged.

They satisfied that burden. They were not required to prove when defendant received the

property, as that was not their theory of liability. Because the evidence showed defendant

possessed both the checks of Billy C. (count 17) and the Discover card of Barbara C.

(count 21) on or about December 20, 2004, she could not be convicted on both offenses."

(Id. at p. 463.)

Here, counts 6, 7 and 8 alleged that "[o]n or about March 19, 2011," Vorabduth

bought, received, concealed, sold and withheld property stolen in the burglaries charged

in counts 2, 3 and 5, respectively. The prosecutor presented no evidence showing when

Vorabduth received the stolen property. He tried the case on the theory that Vorabduth

committed the offenses in counts 6, 7 and 8 on March 19, 2011, when the stolen property

"was found in her car," that is, when she concealed and withheld it from the rightful

owners. (Mitchell, supra, 164 Cal.App.4th at p. 463.)

Respondent argues the record contains substantial evidence to support a

reasonable inference that Vorabduth received the stolen property at different times as part

of different transactions. Respondent asserts there were five similar residential burglaries

at different locations on different dates; Vorabduth was identified at the first and fourth

burglaries; and she was found in possession of property stolen during the remaining three

burglaries. This argument ignores the fact the jury found Vorabduth not guilty of the

6 burglaries in counts 2, 3 and 5. While the People presented evidence those burglaries

occurred, they presented no evidence tying Vorabduth to those burglaries. (Cf. Mitchell,

supra, 164 Cal.App.4th at p. 463 [Although there was "[c]ircumstantial evidence of

defendant's opportunity to steal property while working for Billy C. . . . , it [was]

conceivable someone else stole the property and passed it on to defendant."].)

For the foregoing reasons, we reverse the convictions on counts 7 and 8. The

court operations assessment ($40 for each conviction) therefore must be reduced from

$200 to $120. (§ 1465.8, subd. (a).)

DISPOSITION

The judgment is reversed as to counts 7 and 8. The $200 court operations

assessment (§ 1465.8) is reduced to $120. In all other respects, the judgment is affirmed.

The trial court is directed to correct the abstract of judgment accordingly and to forward

the corrected abstract to the Department of Corrections and Rehabilitation.

BENKE, Acting P. J.

WE CONCUR:

MCINTYRE, J.

AARON, J.

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