Opinion
NOT TO BE PUBLISHED
Super.Ct.No. FWV035414
ORDER MODIFYING OPINION AND DENIAL OF PETITION FOR REHEARING
RAMIREZ P. J.
THE COURT:
Appellant’s petition for rehearing is denied.
The opinion herein, filed on May 18, 2009, is modified as follows:
(1) The second paragraph on page 8 is deleted and replaced with:
After declining two attractive offers, at least one of which was less than his actual sentencing exposure, defendant entered into the plea agreement which included the risky Vargas waiver and a total sentence of 14 years four months if he failed to abide by the terms of his release. The record is silent as to whether defendant’s attorney failed to advise him that the 14-year four-month sentence provided in the plea agreement, which was obviously calculated to make certain he complied with the terms of release under a Vargas waiver, arguably exceeded the sentence the trial court could legally impose if he went to trial on all of the allegations against him. These circumstances show that defendant desired a release under a Vargas waiver so he could be present for the birth of his child and this was the primary motive for declining the prior offers and for entering into the challenged plea agreement.
(2) Footnote 3 on page 9 is deleted and replaced with:
At oral argument, the People raised another possible reason for counsel’s failure to object. According to the People, the total sentence of 14 years four months was not outside the realm of possibility if there had been further development of the factual record. This is because section 10851, subdivision (a), proscribes two separate and distinct crimes. First, it prohibits the act of taking a vehicle without the owner’s consent with the intent to steal it. Second, it prohibits the act of driving a vehicle without the consent of the owner with or without the intent to steal. This second “non-theft” component of section 10851, subdivision (a), is said to proscribe two types of conduct—either post-theft driving of the vehicle once the theft is complete or “joyriding,” which is driving the vehicle with the intent only to temporarily deprive the owner of possession. (People v. Garza (2005) 35 Cal.4th 866, 876.) At the preliminary hearing, an investigator testified that defendant took the vehicle from the dealership on June 28, 2005, and “the vehicle was found when [defendant] went to his parole office on July 27th... 2005.” At this time, the keys to the vehicle were found in defendant’s possession. Thus, it is at least arguable the People could have amended the information to add another separate and divisible count of section 10851, subdivision (a), for post-theft driving of the vehicle. However, because the People raised the argument for the first time at oral argument, we have not considered the issue in reaching our conclusion. (People v. Alice (2007) 41 Cal.4th 668, 678-679.)
There is no change in the judgment.
I concur: HOLLENHORST J.