Opinion
E066390
06-18-2018
THE PEOPLE, Plaintiff and Respondent, v. RICARDO ANTHONY PEREZ, Defendant and Appellant.
Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Lynne G. McGinnis, and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. INF500899) OPINION APPEAL from the Superior Court of Riverside County. Samuel Diaz, Jr., Judge. Affirmed. Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Lynne G. McGinnis, and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.
After a jury trial, defendant and appellant Ricardo Anthony Perez received a two-year prison term for evading and resisting arrest and driving or taking two vehicles. He contends his felony convictions for violating Vehicle Code section 10851 must be reduced to misdemeanors because the People did not prove either vehicle was valued at more than $950, as required by Proposition 47.
Section references are to the Vehicle Code except where otherwise indicated.
We conclude that the convictions are ineligible for misdemeanor treatment under Proposition 47. The record is clear that the jury convicted defendant of violating section 10851 on the theory that he drove the stolen vehicles, not that he stole either vehicle. For this reason, we affirm.
FACTS AND PROCEDURE
On November 4, 2014, the voters approved Proposition 47, The Safe Neighborhoods and Schools Act (Proposition 47); it went into effect the following day. As relevant here, Proposition 47 added section 490.2 to the Penal Code, which defines the crime of misdemeanor petty theft as follows: "(a) Notwithstanding Section 487 or any other provision of law defining grand theft, obtaining any property by theft where the value of the . . . personal property taken does not exceed nine hundred fifty dollars ($950) shall be considered petty theft and shall be punished as a misdemeanor."
On the night of Sunday, November 9, 2014, the victim parked his 1990 Nissan Sentra on a street near his apartment building in Desert Hot Springs after delivering pizzas all evening. He found the car missing about 8:30 Monday morning. He reported the theft to police. The victim then asked his good friend to lend him a vehicle so he could go to work. The friend had previously lent vehicles to the victim when he needed one. The victim drove the borrowed 1997 Isuzu van to work that day and returned home about 6:00 p.m. so he could lead a Bible study at his home at 7:00 p.m. The victim's son asked to borrow the van to go to the store. When the son returned home, the victim asked if he had locked the van. Later that evening, as people were leaving the Bible study, the victim looked outside and saw the van was not there. The victim called police at about 10:00 p.m. to report the theft.
About an hour or so after the victim reported the Isuzu van stolen on Monday night, a police officer patrolling in Desert Hot Springs saw the van being driven past him in the opposite direction. The officer pulled up behind the van and noted that it matched the description of the stolen van. The van had two flat tires. After confirming the license plate, the officer activated the police car's emergency lights. At that point, the van turned right and drove a short distance before coming to a sudden stop. The driver's door flung open and a man the officer identified as defendant got out and ran. The officer chased defendant until defendant entered the dark backyard of a residence. For his own safety, the officer broke off the chase.
On Tuesday evening, November 11, 2014, the same police officer was dispatched to assist the Riverside Auto Theft Interaction Detail with their investigation of the theft of the 1990 Nissan Sentra. The officer followed the Nissan until the driver noticed the officer in his police car, made a U-turn, and drove away. The officer activated his emergency lights and siren. The officer pursued the Nissan for about two minutes at high speeds. The Nissan drove into opposing traffic lanes to avoid another police car that had been parked across lanes in an attempt to block the Nissan. The Nissan went through five stop signs without stopping and finally crashed when it failed to negotiate a turn. A man the officer identified as defendant staggered out of the Nissan and began to run. Defendant eventually surrendered. The police officer recognized defendant as the same man he had chased the previous night.
On September 25, 2015, the People filed an information charging defendant in count 1 with evading a police officer (Veh. Code, § 2800.2), in counts 2 and 3 with felony unlawfully taking or driving a vehicle (Veh. Code, § 10851, subd. (a)(1)), and in count 4 with misdemeanor resisting arrest (Pen. Code, § 148, subd. (a)(1)).
On May 13, 2016, the jury found defendant guilty on all counts.
On July 1, 2016, the court sentenced defendant to two years in state prison, consisting of the low term of 16 months on count 1, eight months on count 3, and concurrent terms on counts 2 and 4.
Defendant was sentenced on several other cases as well, for a total of four years eight months in prison.
Defendant appealed.
Following this court's opinion affirming the court's orders, defendant petitioned for review by the Supreme Court, which issued a "grant and hold" order deferring further briefing pending its decision in People v. Page. (People v. Perez (Oct. 13, 2017, E066390) [nonpub. opn.], review granted Dec. 20, 2017, S245462.) On November 30, 2017, the Supreme Court issued its opinion in People v. Page (2017) 3 Cal.5th 1175 (Page). On March 14, 2018, the Supreme Court transferred this case back to this court for reconsideration after Page. On March 22, 2018, this court vacated its opinion and invited supplemental briefing, which the parties have provided.
DISCUSSION
Defendant argues that the evidence was insufficient to support his convictions for unlawfully driving or taking a vehicle as felonies because: (1) the convictions under section 10851 are for "taking" the vehicles rather than "driving" them; and (2) the prosecution failed to establish that the value of either stolen vehicle was more than $950; therefore, this court should find that the thefts were misdemeanors.
The parties and this court agree that, under Page, a defendant convicted of section 10851 is eligible for resentencing under Proposition 47 when the violation involves (1) the actual theft of the vehicle (2) valued at $950 or less.
Unlawfully driving or taking a vehicle does not appear on the list of felonies reduced to misdemeanors by Proposition 47. (Pen. Code, § 1170.18, subd. (a).) However, among the crimes reduced to misdemeanors by Proposition 47, rendering the person convicted of the crime eligible for resentencing, is petty theft, defined as "obtaining any property by theft where the value of the money, labor, real or personal property taken does not exceed . . . $950." (Pen. Code § 490.2, italics added, see Pen. Code § 1170.18, subd. (a).) The Supreme Court in Page reasoned that, "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.) "A defendant convicted and serving a felony sentence under Vehicle Code section 10851, subdivision (a), for vehicle theft . . . could (if the vehicle was worth $950 or less) receive only misdemeanor punishment pursuant to [Penal code] section 490.2 and is thus eligible for resentencing under [Penal Code] section 1170.8." (Id. at p. 1184.)
Given this definition of felony vehicle theft under People v. Page, we must now determine whether defendant's convictions were for stealing the vehicles or driving the vehicles after the theft. If defendant was convicted of stealing the two vehicles, we will then need to determine whether the record contains sufficient evidence each vehicle was worth $950 or less. If defendant was convicted of driving the vehicles, then the felony convictions will stand because they do not qualify for misdemeanor treatment as petty thefts under Proposition 47, as explained by Page.
Defendant contends, "There is no dispute that the prosecutor failed to produce any evidence . . . that [defendant] was simply joyriding." Defendant then cites to pages in the record transcript to support this statement. However, as described in more detail post, our review of the transcript shows evidence that someone stole the vehicles, but no direct evidence that defendant stole them.
To the contrary, the People contend the evidence at trial showed that defendant drove the vehicles, but no evidence showed defendant stole the vehicles. Further, defendant argues the prosecution explicitly based its case solely on the theory that defendant drove the vehicles. We agree that the evidence at trial proved only that the defendant drove the vehicles but not that he stole them.
The jury was instructed with CALCRIM No. 1820, which states: "The defendant is charged in Counts 2 and 3 with unlawfully taking or driving a vehicle in violation of Vehicle Code section 10851(a). [¶] 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." Thus, the jury was instructed incorrectly (as understood after People v. Page) that it could convict defendant of a felony for violating section 10851 if it found defendant either stole or drove the vehicles in counts 2 and 3. "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. Gutierrez (2018) 20 Cal.App.5th 847, 857.) " 'An 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.' " (Ibid) Here, as the People argue, the record leaves no reasonable doubt that the jury based its guilty verdicts for counts 2 and 3 on the theory that defendant drove the two vehicles, not that he stole them.
First, there is no evidence in the record that defendant is the person who stole either vehicle. Each passage in the record transcript to which defendant points as proof that he stole the vehicles in fact indicates that the vehicle in question was stolen, but does not prove that defendant was the thief. For example, the victim's friend testified that he owned the van, lent it to the victim, the van was stolen from the victim, and he did not give anyone other than the victim permission to drive the van. The victim's son testified that his father's Nissan was stolen sometime Sunday night, his father borrowed the Isuzu van on Monday, and the van was stolen Monday evening. The victim testified that he parked the Nissan Sentra on the street in front of his home Sunday night and that it was gone when he checked on it at 8:30 a.m. Monday. He also testified that he borrowed the Isuzu van from a friend on Monday morning, and that it disappeared Monday evening from the street where his son had parked it after borrowing it to go to the store. None of this testimony points to defendant as the vehicle thief.
All of the testimony regarding defendant indicates he drove the vehicles after they were stolen, but does not directly point to him as the vehicle thief. The police officer who followed defendant as he drove the Isuzu van Monday night, an hour or so after it was reported stolen, testified that he chased the van in his patrol car and defendant was the man who exited the van from the driver's door. The same officer testified that on Tuesday night he chased the Nissan Sentra for two miles and saw defendant exit the car from on the driver's side after it crashed. Thus, the evidence establishes that the two vehicles were stolen, and that defendant drove both vehicles, but it does not directly establish that defendant stole either vehicle.
Second, in closing arguments both the prosecutor and defense counsel specifically argued that the evidence did not establish defendant stole either vehicle. The prosecutor told the jury: "Counts 2 and 3. . . . This is the unlawful taking or driving of a vehicle. You heard me interject myself in the middle of the Court's instructions. Because it's extremely important that the way these two counts are met is not only taking the vehicle but driving it. And that's very important. [¶] Because the evidence doesn't establish that the defendant took the vehicles at all. But what does it establish? It established that he was driving them. And that is all that is required for this count. [¶] . . . I'm not arguing he took the vehicle. Just to be very clear, there is no evidence to show he took the vehicle. It is all about him driving the vehicle. [¶] I'm operating under [a] theory of driving." Defense counsel echoes that the evidence and theory of the section 10851 violation was as to driving only, not taking: "Well, the prosecution already conceded to you there is no evidence whatsoever that he stole the cars. . . . [¶] . . . not only is there no evidence that he stole the car, the government is telling you there's no evidence of that." Finally, in rebuttal, the prosecutor argued that the People had proven beyond a reasonable doubt that defendant was the driver of both vehicles. As set forth ante, the evidence and argument of both parties make it clear that the convictions are based solely on defendant driving the vehicles rather than taking them. Thus, under the standards recited in People v. Gutierrez, supra, 20 Cal.App.5th 847, there is no reasonable doubt that the jury found defendant guilty of violating section 10851 as a felony under both Proposition 47 and Page.
When the court referred to the section 10851 offense by the short hand "taking a vehicle without the owner's consent," the prosecutor interrupted to clarify, "Counts 2 and 3, the Court said taking. It's also driving." --------
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: SLOUGH
J. FIELDS
J.