Opinion
C087067
06-03-2020
THE PEOPLE, Plaintiff and Respondent, v. GABRIEL ALAN LASICK, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 17FE013643)
A jury found defendant Gabriel Alan Lasick guilty of, among other charges, carjacking and unlawful taking/driving a vehicle that was not his own. Defendant argues that the carjacking conviction was not supported by sufficient evidence because no evidence shows he took a vehicle from the victim's immediate presence. He also challenges the unlawful taking/driving a vehicle conviction because, in the wake of Proposition 47, such a conviction requires evidence of the value of the vehicle taken. Absent such evidence, and a jury instruction requiring such evidence, the conviction rests on a legally invalid theory and should be reversed. We agree with the latter assertion, reverse the unlawful taking/driving conviction, and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant lived with the victim, his mother, while he was recovering from substance abuse issues. One evening, he held a knife to her throat and took her car. When confronted by a deputy from the Sacramento County Sheriff's Department the next morning, he fled and led deputies on a high-speed chase before he was apprehended.
At trial, the victim refused to testify. Instead, the prosecution introduced a recording of the victim's 911 call into evidence. In the call, the victim reported that "my son attacked me and stole my car." She stated that he had taken her cell phone and that she had to call 911 from a neighbor's home. She also described what had happened: "Um, I was in my bedroom reading. Um, I had been telling him he can stay here while he tries to get cleaned up and sober. And uh, he keeps getting angrier and angrier. I guess he's on more and more drugs. I don't know where he's getting them. I buy him food, that's it. I haven't let him bor-, take my car because he said he's lost his license and everything. So I said you can't drive without a license and you're not licensed. And then he drew a knife and put it to my throat." She explained that he had left with the car, her phone, a gun, and a knife.
A sheriff's deputy who responded to the 911 call testified that when he arrived at the victim's home that evening, there was no vehicle in the victim's driveway or in front of her home. A deputy who arrived the next morning to investigate testified that defendant had returned to the victim's home and parked in the driveway. The deputy saw defendant walk out of the garage to the car, get into the car, and begin to drive down the street. When defendant saw the deputy, he fled. After defendant was apprehended, deputies found a knife, two phones, and a gun in his possession. No evidence of the value of the car was introduced at trial.
The court instructed the jury on the unlawful taking or driving of a vehicle charge using a pattern jury instruction, CALCRIM No. 1820. The instruction given states, in relevant part: "To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant took or drove someone else's vehicle without the owner's consent; [¶] AND [¶] 2. When the defendant did so, he intended to deprive the owner of possession or ownership of the vehicle for any period of time." The jury found defendant guilty of carjacking with a deadly weapon, robbery with a deadly weapon, two counts of assault with a deadly weapon, reckless driving while evading, unlawful taking or driving of a vehicle, possession of a firearm, and possession of ammunition. The court sentenced defendant to an aggregate term of 12 years eight months in state prison.
DISCUSSION
I
Sufficiency Of The Evidence For Carjacking
Defendant argues that his conviction for carjacking is not supported by sufficient evidence because the evidence does not show the vehicle was in the victim's "immediate presence" when he took it. Specifically, the evidence does not show where the victim's car keys were or where the vehicle was parked when it was taken. We disagree.
To assess the sufficiency of the evidence, we "review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence -- that is, evidence which is reasonable, credible, and of solid value -- such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578.) "We 'must accept logical inferences that the jury might have drawn from the circumstantial evidence.' " (People v. Zamudio (2008) 43 Cal.4th 327, 357.) We may not reweigh the evidence or substitute our judgment for that of the trier of fact. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) "Reversal on this ground is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' " (People v. Bolin (1998) 18 Cal.4th 297, 331.)
"A conviction for carjacking requires proof (1) the defendant took a vehicle that was not his or hers (2) from the immediate presence of a person who possessed the vehicle or was a passenger in the vehicle (3) against that person's will (4) by using force or fear and (5) with the intent of temporarily or permanently depriving the person of possession of the vehicle." (People v. Magallanes (2009) 173 Cal.App.4th 529, 534.) The only element at issue here is whether defendant took the vehicle from the victim's "immediate presence."
Defendant argues that People v. Coleman (2007) 146 Cal.App.4th 1363, in which the court reversed a carjacking conviction, is controlling in this instance. But that case relied on the victim's lack of possessory interest in the vehicle to preclude a carjacking conviction. To conclude that the victim did not have possession, the court explained: "[T]he keys [the victim] relinquished were not her own, and there was no evidence that she had ever been or would be a driver of or passenger in the Silverado. These circumstances are simply too far removed from the type of conduct that [Penal Code] section 215 was designed to address." (Coleman, at p. 1373.) Here, there is no dispute that the victim possessed the vehicle defendant took, even if defendant challenges whether it was in the victim's "immediate presence" when it was taken.
"[S]omething is in a person's 'immediate presence' if it is ' " 'so within his reach, inspection, observation or control, that he could, if not overcome by violence or prevented by fear, retain his possession of it.' " ' [Citations.] 'Under this definition, property may be found to be in the victim's immediate presence "even though it is located in another room of the house, or in another building on [the] premises." ' [Citation.] Or, as the Court of Appeal recently said, 'A vehicle is within a person's immediate presence for purposes of carjacking if it is sufficiently within his control so that he could retain possession of it if not prevented by force or fear.' " (People v. Johnson (2015) 60 Cal.4th 966, 989.)
The prosecution relied largely on the victim's 911 call as evidence on the carjacking charge. That call included information that the victim had previously prevented defendant from taking her car because she knew he did not have a valid driver's license. In the current incident, she told him he could not drive without a license, implying that he could not take or use her car. He then pulled a knife, held it to the victim's throat, and took the car. The victim's house was a single-family home with a garage and driveway, and when deputies encountered defendant the next day, he had parked the car in the driveway. From these facts, a jury could logically infer that the victim kept her car in her garage or on the driveway, that she had previously prevented defendant from taking her car and, in this instance, denied him permission to use her car, until he pulled a knife on her to gain access to the vehicle. In other words, she could have maintained possession of the car but for defendant's use of force/violence. A reasonable jury could thus find the vehicle was in the victim's immediate presence when it was taken. We conclude sufficient evidence supports the carjacking conviction.
II
Unlawful Taking Or Driving A Vehicle Under Proposition 47
Defendant argues his unlawful taking/driving a vehicle conviction must be reversed because the jury's guilty finding may have rested on a legally invalid theory. Specifically, defendant asserts unlawful taking or driving a vehicle under Vehicle Code section 10851 qualifies as a theft offense under Proposition 47, and, as a result, can be prosecuted only as misdemeanor petty theft, unless the prosecution demonstrates the value of the vehicle is greater than $950. Because the prosecution did not present evidence of the vehicle's value at trial and the court did not instruct the jury on the value requirement, the conviction must be reversed.
Further section references are to the Vehicle Code, unless otherwise indicated.
The People respond defendant's conviction was not necessarily a "theft" offense under Proposition 47 because it involved only: (1) the posttheft unlawful driving of the vehicle, or alternatively, (2) the temporary taking of the victim's car. Such crimes, while prohibited by Vehicle Code section 10851, are not covered by Proposition 47 and thus do not require any showing of the vehicle's value. The People couch defendant's challenge as instructional error and argue any error was harmless. We see merit in defendant's position.
After briefing in this case was complete, our Supreme Court clarified the temporary taking of a vehicle qualifies as a theft offense under Proposition 47, while posttheft unlawful driving does not. (People v. Bullard (2020) 9 Cal.5th 94, 110.)
In November 2014, voters passed Proposition 47, the Safe Neighborhoods and Schools Act, which reduced certain drug- and theft-related offenses from felonies or wobblers to misdemeanors. (People v. Martinez (2018) 4 Cal.5th 647, 651.) "One provision of Proposition 47, codified as section 490.2 of the Penal Code, reduced felony offenses consisting of theft of property worth $950 or less to misdemeanors." (People v. Bullard, supra, 9 Cal.5th at p. 99.) One statute affected by this new statutory scheme was section 10851, which prohibits the taking or driving of a vehicle without the owner's consent " 'with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle, whether with or without intent to steal the vehicle.' " (People v. Page (2017) 3 Cal.5th 1175, 1182.) Penal Code section 490.2, "by its terms, applies to the subset of section 10851 convictions that are based on obtaining a vehicle worth $950 or less by theft." (Bullard, at p. 99.) " '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, at p. 1183.)
Our Supreme Court recently concluded that any taking of a vehicle, with intent to permanently or temporarily deprive the owner of possession, qualifies as a theft offense under Proposition 47. (People v. Bullard, supra, 9 Cal.5th at p. 110.) "Except where a conviction is based on posttheft driving (i.e., driving separated from the vehicle's taking by a substantial break), a violation of section 10851 must be punished as a misdemeanor theft offense if the vehicle is worth $950 or less. In pre-Proposition 47 cases, where the defendant seeks resentencing or redesignation under Penal Code section 1170.18, the defendant bears the burden of proof to show the relevant facts; in cases arising, tried, or sentenced after Proposition 47 came into effect, the People bear that burden." (Bullard, at p. 110.)
A situation like defendant's was addressed by the Second District Court of Appeal in People v. Gutierrez (2018) 20 Cal.App.5th 847. Like this case, Gutierrez involved a section 10851 conviction that came after Proposition 47 had become law. (Gutierrez, at p. 852.) The court instructed the jury with the standard instruction on unlawful taking or driving. (Id. at p. 851 & fn. 3.) The Court of Appeal found that, following Page, "to obtain a felony conviction for vehicle theft, the People were required to prove as an element of the crime that the rental car he took was worth more than $950." (Gutierrez, at p. 855.) And, as here, there was no evidence of the value of the vehicle in question to support a conviction under a theft theory. (Id. at p. 856.)
The court concluded, however, that "the problem with Gutierrez's felony conviction is not the sufficiency of the evidence but jury instructions that failed to adequately distinguish among, and separately define the elements for, each of the ways in which section 10851 can be violated." (People v. Gutierrez, supra, 20 Cal.App.5th at p. 856.) Such a failure "allowed the jury to [find] Gutierrez [guilty] of a felony violation of section 10851 for stealing the rental car, even though no value was proved -- a legally incorrect theory -- or for a nontheft taking or driving offense -- a legally correct one." (Gutierrez, at p. 857.) Instructional error like this is harmless only " '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.' " (Ibid.) In People v. Bussey (2018) 24 Cal.App.5th 1056, review granted September 12, 2018, S250152, this court agreed with Gutierrez.
The jury instructions in the current case, like those in Bussey and Gutierrez, did not include an element the vehicle be worth more than $950 for conviction under an unlawful taking theory. The jury was thus instructed on a legally invalid theory of guilt. The error was not harmless; the evidence of an unlawful posttheft driving theory was not so strong that it left " 'no reasonable doubt that the jury made the findings necessary' " under that theory, rather than an unlawful taking theory. (People v. Gutierrez, supra, 20 Cal.App.5th at p. 857.) Defendant took the vehicle without permission in the evening, then returned home before the deputy arrived the next morning. No evidence was introduced detailing defendant's driving activities after he took the vehicle but before he returned home. When confronted in the morning, he fled in the vehicle, leading deputies on a high-speed chase. No evidence established whether he had the victim's consent to use the vehicle for his second outing. Based on this evidence, we cannot infer driving following a substantial break from either taking. Because there was no evidence of posttheft driving and our Supreme Court's decision in Bullard has foreclosed the People's alternative theory, the instructional error was not harmless beyond a reasonable doubt. (See People v. Bullard, supra, 9 Cal.5th at p. 110.)
The remedy is to "reverse the felony conviction for unlawful driving or taking a vehicle 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." (People v. Gutierrez, supra, 20 Cal.App.5th at p. 857; see People v. Bussey, supra, 24 Cal.App.5th at p. 1062 [adopting same remedy].) We will reverse the conviction and remand accordingly.
DISPOSITION
The unlawful taking/driving a vehicle conviction (count seven) is reversed and the sentence is vacated. The matter is remanded 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.
/s/_________
Robie J. We concur: /s/_________
Raye, P. J. /s/_________
Butz, J.