Opinion
F079653
04-21-2020
In re N.G., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. N.G., Defendant and Appellant.
Karriem Baker, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Jennifer Oleksa, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. JW123171-05)
OPINION
THE COURT APPEAL from orders of the Superior Court of Kern County. Lorna H. Brumfield, Judge. Karriem Baker, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Jennifer Oleksa, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Peña, J. and DeSantos, J.
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INTRODUCTION
Appellant N.G. contends her felony adjudication for violating Vehicle Code section 10851, subdivision (a) must be reduced to a misdemeanor because the evidence is insufficient to establish the value of the vehicle exceeded $950. In addition, she contends the evidence is insufficient to establish that she falsely identified herself to a peace officer, in violation of Penal Code section 148.9, subdivision (a). We reduce the Vehicle Code section 10851 adjudication to a misdemeanor and affirm the section 148.9, subdivision (a) adjudication.
References to code sections are to the Penal Code unless otherwise specified.
FACTUAL AND PROCEDURAL SUMMARY
A Welfare and Institutions Code section 602 petition was filed against N.G. alleging she committed carjacking in violation of section 215, subdivision (a); unlawful taking of a vehicle in violation of Vehicle Code section 10851, subdivision (a); assault by means likely to cause great bodily injury in violation of section 245, subdivision (a)(4); falsely reporting a crime to a peace officer in violation of section 148.5, subdivision (b); falsely identifying herself to a peace officer in violation of section 148.9, subdivision (a); and violation of probation pursuant to Welfare and Institutions Code section 777, subdivision (a)(2).
Testimony at the contested hearing established that on the evening of March 13, 2019, Luis Cruz was driving home. When he stopped to allow a group of people to cross the street, a young woman, N.G., began cursing at Cruz. Cruz opened the door of his car and told N.G. to leave. Instead, N.G. grabbed Cruz by the collar and pulled him away from his car, ripping his shirt. A man who was with N.G. then hit Cruz with a machete, tearing his pants and cutting his knee.
The man with the machete directed N.G. to take Cruz's car. Cruz asked N.G. not to take the car, but she climbed behind the wheel and drove off.
Cruz ran to a nearby convenience store and asked a man he did not know, Michael Simpson, for help. Cruz seemed scared. The two left in Simpson's car and drove around a few minutes before spotting Cruz's car parked two or three blocks away. N.G. was rummaging around in the car and Cruz went over and pulled her out and to the ground. Cruz held on to her until the police arrived a few minutes later, although N.G. was kicking, scratching, and screaming at him.
Bakersfield Police Officers Austin Haydock and Bailey Eby responded to the scene; a group of people were around Cruz's car; everyone was yelling; and N.G. was screaming that Cruz raped her. Cruz was sweaty and out of breath; he had scrapes on his arms and wrists and his shirt was torn.
When questioned, N.G. admitted no rape had occurred. She separately gave a false name to each officer and gave a birthdate in 2001. Later, officers determined her true name was N.G. and her birth date was in 2002.
The juvenile court found all the counts alleged in the petition to be true. N.G. was committed to the Department of Juvenile Justice with a maximum confinement period of 11 years 10 months. Credit of 442 days was awarded. N.G. filed a timely notice of appeal.
DISCUSSION
N.G. raises two issues in this appeal. First, she contends the felony adjudication for violating Vehicle Code section 10851, subdivision (a), must be reduced to a misdemeanor because there is insufficient evidence establishing that the value of the vehicle was more than $950. Second, she maintains the evidence is insufficient to support the misdemeanor conviction for falsely identifying herself to the officers because the evidence does not establish that she had been detained or arrested at the time she provided the false information.
N.G. contends the adjudication for a felony offense under Vehicle Code section 10851 must be reduced to a misdemeanor because there is insufficient evidence the value of the vehicle exceeded $950. The People contend the adjudication is based on either posttheft driving, or a taking with the intent to temporarily deprive Cruz of possession, and that a conviction under either of these theories does not require proof of the value of the vehicle.
At the time of the adjudication hearing and sentencing, the Supreme Court's decision in People v. Page (2017) 3 Cal.5th 1175 (Page) explained:
"By its terms, Proposition 47's new petty theft provision, section 490.2, covers the theft form of the Vehicle Code section 10851 offense. As noted, section 490.2, subdivision (a), mandates misdemeanor punishment for a defendant who 'obtain[ed] any property by theft' where the property is worth no more than $950. An automobile is personal property. '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.)
Page held that while Vehicle Code section 10851 applies broadly to "[a]ny person who drives or takes a vehicle not his or her own, without the consent of the owner thereof, and with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle ..." (Veh. Code, § 10851), the Proposition 47 misdemeanor reclassification only applied to violations where the facts fall within the definition of a theft under section 490.2. To establish Proposition 47 misdemeanor eligibility on a Vehicle Code section 10851 conviction, it must be shown: (1) that the vehicle involved was worth $950 or less, and (2) there was an intent to permanently deprive the owner of possession, and not a mere posttheft driving of the vehicle following a "substantial break" after it has already been stolen. (Page, supra, 3 Cal.5th at pp. 1188-1189.) If a substantial break in time exists, eligibility for treatment as a misdemeanor is not available; such evidence would not prove the conviction was based on theft rather than on posttheft driving. (Id. at p. 1189.)
As added by Proposition 47, section 490.2, subdivision (a), now provides that, "Notwithstanding Section 487 or any other provision of law defining grand theft, 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) shall be considered petty theft and shall be punished as a misdemeanor, except ...." where the defendant has a prior disqualifying conviction. --------
After N.G. appealed and briefing was complete, the Supreme Court issued People v. Bullard (March 23, 2020, No. S239488) ___ Cal.5th ___ (Bullard). In Bullard, the Supreme Court held that Proposition 47 applies to a taking under Vehicle Code section 10851 where there is an intent to permanently or temporarily deprive the owner of possession. (Bullard, at [pp. 17-18].) Bullard reaffirmed that Proposition 47 does not apply to Vehicle Code section 10851 convictions based on posttheft driving and that posttheft driving must be driving separated from the vehicle's taking by a substantial break. (Bullard, at [p. 29].)
Bullard overrules Page in part and holds that Proposition 47 is applicable to a theft or taking, with or without the intent to permanently deprive the owner of possession, under Vehicle Code section 10851. Consequently, the value of the vehicle is relevant in any conviction or adjudication based on a taking under Vehicle Code section 10851.
Here, there was no substantial break in time to justify basing the Vehicle Code section 10851 adjudication on posttheft driving. N.G. pulled Cruz away from his car and then drove away with the vehicle. A short few minutes later, Cruz found his car parked, with N.G. rummaging through it. Therefore, N.G.'s adjudication for violating Vehicle Code section 10851 could only be based on a theft or taking, with or without the intent to permanently deprive the owner of possession.
There was no evidence presented at the jurisdiction hearing to establish the value of Cruz's vehicle as required for a conviction, or adjudication, for a theft or taking under Vehicle Code section 10851 subsequent to the Bullard decision. In cases arising, or tried, after Proposition 47, the People bear the burden of proof on value. (Bullard, supra, ___ Cal.5th ___ [pp. 29-30].) This court asked for supplemental briefing from the parties after the Bullard decision was issued, specifically requesting the parties to address the appropriate disposition of N.G.'s claim of insufficiency of the evidence to support the Vehicle Code section 10851 adjudication.
In their supplemental letter brief filed on April 3, 2020, the People concede that the Vehicle Code section 10851 adjudication cannot be based on posttheft driving, but is based on a taking or theft of Cruz's vehicle, and that in the absence of evidence establishing the value of the vehicle exceeded $950, the felony adjudication must be reduced to a misdemeanor. Therefore, we will reduce the felony adjudication for violating Vehicle Code section 10851 to a misdemeanor.
II. False Identification
N.G. argues the evidence is insufficient to support her misdemeanor conviction for falsely identifying herself to a peace officer within the meaning of section 148.9, subdivision (a), because the evidence did not establish that she had been detained or arrested at the time she did so. We reject these contentions.
" 'Any person who falsely represents or identifies himself ... as another person or as a fictitious person to any peace officer ... upon a lawful detention or arrest of the person, either to evade the process of the court, or to evade the proper identification of the person by the investigating officer is guilty of a misdemeanor.' [Citations.] The purpose of this law is to require the defendant to give 'sufficient information to allow law enforcement to locate the person if he or she does not appear in court.' [Citation.] In reviewing the evidence, we draw all reasonable
inferences to support the judgment and resolve neither credibility issues nor evidentiary conflicts. [Citations.]
"In assessing a claim of insufficiency of the evidence, our 'task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' " (In re Kelly W. (2002) 95 Cal.App.4th 468, 471-472.)
In determining whether a person is detained, the critical question is whether " 'the police conduct would have "communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business." ' " (In re J.G. (2014) 228 Cal.App.4th 402, 409.) "A person is deemed to have ' "been 'seized' within the meaning of the Fourth Amendment" ... [citation] ... "only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." ' [Citations.] 'Examples of conditions which might indicate a "detention" or "seizure" under a reasonable person standard include a threatening police presence, the display of a weapon by an officer, the physical touching of the citizen approached, or the officer's language or voice indicating compliance with police demands might be compelled. [Citations.] There is no bright line rule indicating the point at which police conduct becomes a seizure. The degree of intrusion will vary with each set of facts involving police conduct and the actions of the suspect.' " (People v. Walker (2012) 210 Cal.App.4th 1372, 1382-1383.)
Here, Cruz took it upon himself to pull N.G. out of his vehicle and pin her to the ground, where he held her until officers arrived at the scene in response to a 911 call. Haydock spoke to N.G. immediately, while Eby spoke to Cruz. N.G. gave Haydock a false name and birth date; and repeated the false information in Haydock's presence when receiving medical treatment after being transported in a patrol car. At some point, Eby also spoke with N.G. and she gave him the same false name.
Although Eby testified N.G. was not in custody when he spoke with her, being in custody is not dispositive. N.G. was placed in the back of the patrol car at some point, after officers arrived on a chaotic scene in response to a 911 call and were attempting to determine exactly what had happened. Under these circumstances, a reasonable person would not have felt free to leave the scene. (In re J.G., supra, 228 Cal.App.4th at p. 409.)
Moreover, it can be argued that N.G. was under a citizen's arrest at the time she spoke with Haydock and Eby. Any person is permitted to arrest another for committing or attempting to commit a public offense in his or her presence. (People v. Bloom (2010) 185 Cal.App.4th 1496, 1501; §§ 834, 837.) N.G. assaulted Cruz and stole his vehicle in his presence, thus Cruz was entitled to place N.G. under arrest. Once having placed N.G. under a citizen's arrest, Cruz transferred physical custody to the law enforcement officers who responded to the 911 call. (People v. Sjosten (1968) 262 Cal.App.2d 539, 544; § 839.)
Thus, the record contains substantial evidence that supports the court's finding that N.G. violated section 148.9, subdivision (a). (People v. Hunt (1990) 225 Cal.App.3d 498, 502, 506 [Defendant, whose name was Bruce Hunt, violated section 148.9, subdivision (a) when he identified himself as Paul Hunt.].)
N.G. cites In re Voeurn O. (1995) 35 Cal.App.4th 793 (Voeurn O.), to contend she did not violate section 148.9, subdivision (a) because she was not detained or arrested when she spoke with Haydock and Eby and provided a false name and birthdate. In Voeurn O., a police officer responding to a report of "suspicious juveniles loitering" at an apartment complex found a minor lying on some grass at the complex and began asking him questions. The minor told the officer he was waiting for a friend, for whom he could not provide an address, and he provided a false name. Although the minor was released, he was arrested three weeks later when the officer discovered his true identity. (Id. at p. 795.)
At the start of the jurisdictional hearing, the minor moved to suppress his false statements arguing that they were the product of an unlawful detention. The trial court, however, found that he was not detained and denied the motion. On appeal, the minor claimed this ruling precluded a finding that he violated section 148.9, subdivision (a). The appellate court agreed. (Voeurn O., supra, 35 Cal.App.4th at pp. 795, 797.)
Voeurn O. does not help N.G. because in that case the minor was not detained. Here, N.G. was under a citizen's arrest or lawfully detained at the time she spoke with Haydock and Eby. Accordingly, we conclude the evidence is sufficient to sustain the juvenile court's adjudication of N.G. for providing a police officer with false information in violation of section 148.9, subdivision (a).
To the extent N.G. believes the evidence is also susceptible of a different interpretation, we do not reweigh the evidence or resolve conflicts in the evidence. (People v. Young (2005) 34 Cal.4th 1149, 1181.) Reversal on a substantial evidence 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.)
DISPOSITION
The Vehicle Code section 10851 felony adjudication is reduced to a misdemeanor. In all other respects, the adjudication and disposition are affirmed.