Opinion
B277699
07-18-2018
THE PEOPLE, Plaintiff and Respondent, v. JAMIE CONTRERAS, Defendant and Appellant.
Elana Goldstein, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Mary Sanchez and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. LA083486) APPEAL from a judgment of the Superior Court of Los Angeles County. Thomas Rubinson, Judge. Reversed and remanded with directions. Elana Goldstein, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Mary Sanchez and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.
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Appellant Jamie Contreras was convicted by a jury of one count of unlawfully driving or taking a vehicle. (Veh. Code, § 10851, subd. (a).) He appealed the judgment of conviction, contending, inter alia, that the trial court erred in imposing a felony sentence for his conviction under section 10851 in the absence of evidence that the value of the vehicle exceeded $950, as required by Proposition 47. In a nonpublished opinion, we affirmed the judgment of conviction, holding that Proposition 47 does not apply to section 10851, and appellant's felony sentence was proper. (People v. Contreras (Aug. 29, 2017, B277699).) On November 29, 2017, our Supreme Court granted Contreras's petition for review, but deferred consideration pending its decision in People v. Page (review granted January 27, 2016, No. S230793). Thereafter, on February 28, 2018, the court transferred Contreras's appeal to us with directions to reconsider our decision in light of People v. Page (2017) 3 Cal.5th 1175 (Page).
Undesignated statutory references are to the Vehicle Code.
Page held that a violation of section 10851 constitutes a misdemeanor under Proposition 47 if it is based on the theft of a vehicle valued at $950 or less. (Page, supra, 3 Cal.5th at pp. 1180, 1183.) However, Page did not decide whether Proposition 47 applies to convictions under section 10851 which are based on unlawful driving of a vehicle, that is, cases in which the defendant did not intend to permanently deprive the owner of the vehicle. Thus, a conviction based on posttheft driving or joyriding remains outside the scope of Proposition 47 and may still be treated as a felony.
The parties have submitted further briefing in which they agree that the trial court erred by instructing the jury with a legally incorrect theory of guilt, which failed to inform the jury of the $950 threshold required for a felony theft conviction under section 10851. Because the jury instructions allowed the jury to convict under a legally invalid theory of vehicle theft, and the record does not disclose the basis on which the jury convicted appellant of violating section 10851, we reverse and remand for further proceedings.
FACTUAL BACKGROUND
On May 15, 2016, Candi Smith realized her 1972 Winnebago was missing from its usual parking place in the vicinity of Tucker and Woodley Streets in Los Angeles County. The vehicle was in poor condition. When Smith had parked it about three days earlier, all the windows were boarded up and the side door was the vehicle's only working door. Smith had removed the battery and locked the vehicle when she parked it. Smith reported the Winnebago stolen.
On May 22, 2016, police noticed a decrepit Winnebago parked in the area of Vineland Avenue and Crockett Streets. When the officers checked the license plate number, they learned the vehicle had been reported stolen. The officers pulled up behind the Winnebago and saw appellant exit the passenger door and walk around to the driver's side. Overall, the Winnebago appeared aged, and the officers noted the front passenger window was shattered, the grill was smashed, the front license plate was hanging off, and the seats were ripped. The vehicle did have a battery.
After the officers detained appellant, he told them he had purchased the vehicle from a woman in Simi Valley for about $400. But appellant did not have any keys for the vehicle, nor did he have a bill of sale, registration, a release of liability, or any other documents related to a sale. Appellant then told the officers the vehicle belonged to his Aunt Evelyn, but he could not provide any information about her.
When the Winnebago was returned to Smith, she found it had been damaged and personal property was missing from inside.
DISCUSSION
The parties assert that appellant's conviction under section 10851 must be reversed because the jury instructions did not differentiate between a felony and misdemeanor violation of the statute for purposes of Proposition 47, and the error cannot be deemed harmless beyond a reasonable doubt. We agree.
Passed in the fall of 2014, Proposition 47 amended or added various provisions to the Penal Code to reclassify certain felony offenses as misdemeanors. Among the new provisions was Penal Code section 490.2, which defines the misdemeanor offense of petty theft as "obtaining any property by theft where the value of the money, labor, real or personal property taken does not exceed nine hundred fifty dollars ($950)." (Pen Code, § 490.2, subd. (a).)
Our Supreme Court has recognized that section 10851 " 'proscribes a wide range of conduct' " (People v. Garza (2005) 35 Cal.4th 866, 876 (Garza)), embracing both a theft offense and a nontheft offense. (Page, supra, 3 Cal.5th at p. 1182; People v. Gutierrez (2018) 20 Cal.App.5th 847, 854 (Gutierrez).) A theft occurs when the defendant unlawfully takes a vehicle with the intent to permanently deprive the owner of possession. (Page, supra, at p. 1183; Garza, supra, 35 Cal.4th at p. 871.) On the other hand, a nontheft offense occurs when the driving takes place after the theft is complete (referred to by the Supreme Court as "posttheft driving") or when the defendant takes or drives the vehicle only to deprive the owner of possession temporarily (commonly known as "joyriding"). (Page, at p. 1183; Gutierrez, at p. 854.)
In Page, our Supreme Court held that, "[b]y its terms, Proposition 47's new petty theft provision, [Penal Code] section 490.2, covers the theft form of the Vehicle Code section 10851 offense. . . . 'As a result, after the passage of Proposition 47, an offender who obtains a car valued at less than $950 by theft must be charged with petty theft and may not be charged as a felon under any other criminal provision.' " (Page, supra, 3 Cal.5th at p. 1183.) Conversely, when the value of the vehicle exceeds $950, or when the nontheft form of section 10851 is committed by virtue of posttheft driving or joyriding, the defendant may still be charged with a felony. (Page, supra, 3 Cal.5th at pp. 1188-1189.)
After its decision in Page, the Supreme Court retained jurisdiction in at least one unlawful driving case which had initially come before the court on a grant and hold order pending Page: People v. Bullard (S239488, Supreme Ct. Mins., Feb. 22, 2017). The Court has now ordered the parties in Bullard to brief the following question: " 'Does equal protection or the avoidance of absurd consequences require that misdemeanor sentencing under Penal Code sections 490.2 and 1170.18 extend not only to those convicted of violating Vehicle Code section 10851 by theft, but also to those convicted for taking a vehicle without the intent to permanently deprive the owner of possession?' (See People v. Page (2017) 3 Cal.5th 1175, 1188, fn. 5.)" (People v. Bullard, S239488, Supreme Ct. Mins., Feb. 21, 2018.)
In this case, the trial court instructed the jury that a conviction for the crime of unlawfully taking or driving a vehicle under section 10851 required the prosecution to prove that the defendant took or drove someone else's vehicle without the owner's consent and intended to deprive the owner of possession or ownership of the vehicle for any period of time. (CALCRIM No. 1820.) The flaw in this instruction is that it allowed the jury to convict appellant of a felony violation of section 10851 on a legally incorrect theory—for stealing the Winnebago in the absence of any evidence of its value; or on a legally correct theory—for a nontheft taking or driving offense. (Gutierrez, supra, 20 Cal.App.5th at p. 857.)
"When a trial court instructs a jury on two theories of guilt, one of which was legally correct and one legally incorrect, reversal is required unless there is a basis in the record to find that the verdict was based on a valid ground." (People v. Chiu (2014) 59 Cal.4th 155, 167.) Hence, "[a]n instruction on an invalid theory may be found harmless when 'other aspects of the verdict or the evidence leave no reasonable doubt that the jury made the findings necessary' under a legally valid theory." (In re Martinez (2017) 3 Cal.5th 1216, 1226.)
The evidence in this case supported jury findings under both theories: Police found appellant in possession of the stolen vehicle a week after it had been taken. First he told the officers he had purchased it, and then changed his story to say he had permission to take it. Appellant also admitted he had driven the Winnebago after he hot-wired it. The evidence thus supported an inference that appellant had engaged in posttheft driving. On the other hand, the jury could have found appellant's statements lacked credibility and accepted the prosecutor's argument that he had stolen the Winnebago.
Smith's Winnebago had an automatic transmission; accordingly, it could not be hot-wired without a battery.
The prosecutor urged the jury to find that appellant had committed the theft form of the offense: "So if the defendant is being untruthful about the vehicle that's been stolen, if he admits to hot wiring it and driving it from North Hills, where it was reported missing, is there any reasonable doubt that he took it, that he took it without permission, and that he took it intending to deprive the owner of possession of that vehicle?" --------
On this record there is simply no way to determine whether the jury convicted appellant for a violation of section 10851 "under a legally valid nontheft theory or a legally invalid theory of vehicle theft that did not include as an element the value of the stolen car." (Gutierrez, supra, 20 Cal.App.5th at p. 857.) Accordingly, we reverse appellant's felony conviction for unlawful driving or taking a vehicle under section 10851, and "remand the matter to allow the People either to accept a reduction of the conviction to a misdemeanor or to retry the offense as a felony with appropriate instructions." (Ibid.; see People v. Chiu, supra, 59 Cal.4th at p. 168; see generally People v. Navarro (2007) 40 Cal.4th 668, 678 [under Pen. Code, § 1260, "an appellate court may modify a verdict to reflect a conviction of a lesser included offense where insufficient evidence supports the conviction on the greater offense"].)
DISPOSITION
Appellant's conviction for unlawfully taking or driving a vehicle under Vehicle Code section 10851 is reversed, and the matter is remanded for further proceedings consistent with this opinion. On remand, the People may either accept a reduction of the conviction to a misdemeanor or retry appellant for a felony violation of section 10851 with appropriate instructions.
NOT TO BE PUBLISHED.
LUI, P. J. We concur:
ASHMANN-GERST, J.
CHAVEZ, J.