Opinion
E065612
07-11-2018
In re R.K., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. R.K., Defendant and Appellant.
Sarah Kleven McGann, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Brendon W. Marshall, and Marvin Mizell, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J264090) OPINION APPEAL from the Superior Court of San Bernardino County. Barbara A. Buchholz, Judge. Reversed and remanded with directions. Sarah Kleven McGann, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Brendon W. Marshall, and Marvin Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
The San Bernardino County District Attorney's Office filed an amended Welfare and Institutions Code section 602 juvenile wardship petition alleging that defendant and appellant R.K. (minor) committed the following offenses: unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a), count 1), receiving stolen property (Pen. Code, § 496d, subd. (a), count 2), criminal threats (Pen. Code, § 422, count 3), and battery (Pen. Code, § 242, counts 4 & 5). At the outset of the jurisdiction hearing, a juvenile court dismissed counts 3 through 5 pursuant to the People's request. The court then found the allegation in count 1 true and dismissed count 2. At the disposition hearing, the court found that count 1 was a felony, declared minor a ward, and placed him on probation in the custody of his mother.
All further statutory references will be to the Penal Code, unless otherwise noted.
On appeal, minor contends that (1) the evidence was insufficient to support a true finding of a felony violation of Vehicle Code section 10851, subdivision (a), since the prosecution failed to establish the value of the stolen vehicle, and (2) the probation condition prohibiting him from associating with people using controlled substances is overbroad.
This matter has been transferred here from the Supreme Court with directions to vacate our previous decision and to reconsider the case in light of People v. Page (2017) 3 Cal.5th 1175 (Page). In our earlier opinion, we affirmed, concluding that Proposition 47 did not apply to Vehicle Code section 10851. Our Supreme Court held otherwise in Page.
We have vacated our previous decision and now, having reconsidered the cause in light of Page, we reverse and remand with directions.
FACTUAL AND PROCEDURAL BACKGROUND
On December 21, 2015, the victim drove her 2007 Nissan 350Z to work at the Heritage school (the school). She parked right in front of the school, put her car keys in her lunch bag, and left the lunch bag in the break room. At some point during the day, the victim noticed that her car was missing and discovered that her car keys were missing. She reported it to the police.
The victim's car had a LoJack system, which allowed the police to locate the car quickly. Officer Spagon found the car at an apartment complex approximately two miles away from the school. Minor and his friend were seen near the parked car, and the officer detained them. After being read his Miranda rights, minor told the officer that he and his friend went into a classroom at the school and took the keys belonging to the victim's car. Minor's friend did not know how to drive, so minor drove the car, and they went to his friend's apartment complex. His friend told the officer they took the car to go "joyriding."
Miranda v. Arizona (1966) 384 U.S. 436.
At the close of evidence at the jurisdiction hearing, defense counsel argued that there was insufficient evidence to prove an unlawful taking or driving of a vehicle, as alleged in count 1. Counsel argued that, under People v. Ortiz (2016) 243 Cal.App.4th 854 (Ortiz), review granted March 16, 2016, S232344, review dismissed and remanded in light of Page, supra, 3 Cal.5th 1175, February 28, 2018, the value of the car had to exceed $950 for the offense to be a felony, rather than a misdemeanor, and that no value was shown at the hearing. Thus, he argued that a misdemeanor conviction would be appropriate. The People responded that the manner in which the car was taken was sufficient to make it a felony. The court took a recess to review Ortiz. The court subsequently noted the Ortiz court's conclusion that theft of a vehicle with a value under $950 was a petty theft under Proposition 47; however, the court stated that the burden of proof was on the defense to establish the vehicle was valued at less than $950. The court stated that the charge in the instant case was for a violation of Vehicle Code section 10851, which required a finding that the defendant took or drove a vehicle without the owner's consent, with the intention of depriving the owner of possession or ownership for a period of time. The court concluded that the People met their burden of proof and found true the allegation as a felony.
ANALYSIS
I. There Was Insufficient Evidence to Support Count 1 as a Felony
Minor argues that the evidence was insufficient to support a finding of unlawful driving or taking of a vehicle as a felony because the prosecution failed to establish that the value of the car exceeded $950. Therefore, he requests this court to reduce the finding to a misdemeanor. The People essentially acknowledge that the felony adjudication cannot stand, but seek remand to allow them to present evidence of the vehicle's value. We reverse and remand with directions.
In November 2014, California voters approved Proposition 47 (effective November 5, 2014). (§ 1170.18.) "Proposition 47 makes certain drug- and theft-related offenses misdemeanors, unless the offenses were committed by certain ineligible defendants. These offenses had previously been designated as either felonies or wobblers (crimes that can be punished as either felonies or misdemeanors)." (People v. Rivera (2015) 233 Cal.App.4th 1085, 1091.) "Proposition 47 also created a new resentencing provision: section 1170.18. Under section 1170.18, a person 'currently serving' a felony sentence for an offense that is now a misdemeanor under Proposition 47, may petition for a recall of that sentence and request resentencing in accordance with the statutes that were added or amended by Proposition 47." (Id. at p. 1092.)
"A person can violate [Vehicle Code] section 10851(a) 'either by taking a vehicle with the intent to steal it or by driving it with the intent only to temporarily deprive the owner of possession (i.e., joyriding).'" (People v. Garza (2005) 35 Cal.4th 866, 876 (Garza).) In other words, Vehicle Code section 10851 proscribes the action of taking or driving a vehicle "with or without intent to steal." (Veh. Code, § 10851, subd. (a).) Therefore, depending on the circumstances, a violation of Vehicle Code section 10851 may or may not be treated as a "theft conviction" for certain purposes. (Garza, at p. 871.) We note that, although there was evidence in the instant case that minor and his cohort took the car to go "joyriding," the parties agree that the court found minor's conduct constituted vehicle theft.
Following the passage of Proposition 47, Courts of Appeal disagreed whether Penal Code section 490.2 applied to vehicle theft under Vehicle Code section 10851, "that is, whether a theft conviction under section 10851 could continue to be punished as a felony regardless of the value of the vehicle or whether it must be punished as a misdemeanor if the vehicle's value did not exceed $950." (People v. Gutierrez (2018) 20 Cal.App.5th 847, 854 (Gutierrez).) The Supreme Court resolved the issue in Page, supra, 3 Cal.5th 1175 holding: "By its terms, Proposition 47's new petty theft provision, section 490.2, covers the theft form of the Vehicle Code section 10851 offense." (Id. at p. 1183.) Thus, after the passage of Proposition 47, "obtaining an automobile worth $950 or less by theft constitutes petty theft under section 490.2 and is punishable only as a misdemeanor, regardless of the statutory section under which the theft was charged." (Id. at p. 1187.) We underscore the retrospective and prospective applications of Proposition 47. Section 1170.18 "allows individuals who had already been convicted of felonies at the time of Proposition 47's enactment to petition for resentencing if the felony had been reclassified as a misdemeanor. When such a petition has been filed, the defendant bears the burden of proving he or she is eligible for retrospective relief." (Gutierrez, supra, 20 Cal.App.5th at p. 855.) However, if a person's offense occurred after the passage of Proposition 47, the People are required to prove that the stolen vehicle is worth more than $950, in order to obtain a felony conviction for vehicle theft. (Gutierrez, at p. 855; Page, supra, 3 Cal.5th at p. 1183; In re D.N. (2018) 19 Cal.App.5th 898, 901 (D.N.).)
Minor committed his offense in December 2015, which was over one year after Proposition 47 went into effect. Thus, he argues there was insufficient evidence to support a felony conviction of Vehicle Code section 10851 because the prosecution failed to establish the value of the vehicle. He requests that we reduce the violation to a misdemeanor and not permit the People to retry him for a felony violation. Minor relies upon D.N., supra, 19 Cal.App.5th 898, in which the People argued that Vehicle Code section 10851 did not come within the ambit of Proposition 47 and, if it did, the People should be permitted to retry the minor to prove the value of the stolen vehicle. The D.N. court asserted that the law had changed nearly two years before the minor committed her offenses, and "[t]he prospective aspect of this change in the law applied to all offenses occurring on November 5, 2014, and thereafter." (D.N., at p. 903.) The court stated that the People were "on notice of the relevant change in the law" and "should have been well aware the value of the stolen vehicle was relevant on whether the offense was a felony." (Ibid.) The court held that the People were not entitled to retry the minor to prove the value of the stolen vehicle, since such retrial would violate double jeopardy. (Ibid.)
Here, it is undisputed that the People did not present evidence of the value of the stolen vehicle. However, the People argue, and we agree, that the matter should be remanded to allow them to present evidence on the vehicle's value. The People rely on Gutierrez, supra, 20 Cal.App.5th 847, which involved an appeal following a jury trial. There, the Court of Appeal concluded 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 [Vehicle Code] section 10851 can be violated." (Id. at p. 856.) Specifically, the "instructions . . . allowed the jury to convict Gutierrez of a felony violation of [Vehicle Code] 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." (Id. at p. 857.) Because the court could not "say whether Gutierrez was convicted 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," it "reverse[d] the felony conviction for unlawful driving or taking a vehicle and remand[ed] 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.) While Gutierrez did not reverse on sufficiency of the evidence grounds, and therefore did not consider double jeopardy, the court nevertheless criticized the approach taken in D.N. and "declin[ed] to fault either the trial court or the prosecutor for failing to correctly anticipate" the manner in which the Supreme Court would resolve the conflicting authority as to whether Proposition 47 applied to Vehicle Code section 10851. (Gutierrez, at p. 858.)
We too decline to follow the reasoning of D.N., supra, 19 Cal.App.5th 898. The D.N. court concluded that the People were not entitled to retry the minor to prove the value of the stolen vehicle because they "should have been well aware the value of the stolen vehicle was relevant on whether the offense was a felony." (Id. at p. 903.) However, at the time of the jurisdiction hearing in the instant case, as well as when D.N. was decided, there was conflicting authority on the issue of whether a violation of Vehicle Code section 10851 fell within the ambit of Proposition 47. The Supreme Court did not decide the issue until November 30, 2017, almost two years after the jurisdiction hearing here. We also note that, at the jurisdiction hearing, the court stated that the burden was on the defense to establish the stolen vehicle was worth less than $950. Given the conflicting authority and the court's statement on the burden of proof, we decline to fault the prosecutor for not presenting evidence of the vehicle's value.
See e.g., People v. Page (2015) 241 Cal.App.4th 714, 719, superseded by grant of review ["Penal Code section 490.2 is simply inapplicable to defendant's conviction offense."]; People v. Solis (2016) 245 Cal.App.4th 1099, 1104, review granted June 8, 2016, S234150, transferred to the Court of Appeal for reconsideration in light of Page, supra, 3 Cal.5th 1175 Mar. 21, 2018 ["Section 10851 is not eligible for resentencing under Proposition 47 under any legal theory."]; People v. Haywood (2015) 243 Cal.App.4th 515, 522, review granted Mar. 16, 2016, S232250, transferred to the Court of Appeal for reconsideration in light of Page, supra, 3 Cal.5th 1175 Mar. 21, 2018 ["Unlawful taking/driving thus cannot be swept into the ambit of section 1170.18 by" section 490.2.]; Ortiz, supra, 243 Cal.App.4th 854, 857 ["We hold that a defendant convicted under Section 10851 may be eligible for Proposition 47 resentencing if he or she can show the offense qualifies as a petty theft under Section 490.2."]. --------
Furthermore, in our view, remand for a new jurisdictional hearing is appropriate and does not violate double jeopardy. "In proceedings before the juvenile court juveniles are entitled to constitutional protections against twice being placed in jeopardy for the same offense." (Richard M. v. Superior Court (1971) 4 Cal.3d 370, 375.) The constitutional protection against double jeopardy generally prohibits retrial for the same offense when a conviction is reversed because of insufficient evidence (People v. Goolsby (2016) 244 Cal.App.4th 1220, 1225), but not "after a reversal premised on error of law" (People v. Shirley (1982) 31 Cal.3d 18, 71, superseded by statute on other grounds, as explained in People v. Alexander (2010) 49 Cal.4th 846, 879). Where "evidence is not introduced at trial because the law at that time would have rendered it irrelevant, . . . remand to prove that element is proper and the reviewing court does not treat the issue as one of sufficiency of the evidence." (People v. Figueroa (1993) 20 Cal.App.4th 65, 72 (Figueroa).)
The rule stated in Figueroa has been applied where "a statutory amendment adds an additional element to an offense" and that amendment applies retroactively to the defendant because his or her judgment is not yet final. (People v. Eagle (2016) 246 Cal.App.4th 275, 280 (Eagle).) However, federal courts have held that double jeopardy protections do not bar retrial where an intervening judicial decision clarifies that the law requires " 'evidence that was not theretofore generally understood to be essential to prove the crime, . . .' " (U.S. v. Wacker (10th Cir. 1995) 72 F.3d 1453, 1465 [double jeopardy did not bar retrial where the government presented its proof based on the then-governing rule in the circuit and, while the case was on appeal, the Supreme Court clarified that additional evidence was necessary to support a conviction].)
Here, although Proposition 47 was in effect at the time of minor's offense, the issue of whether Proposition 47 applied to theft convictions under Vehicle Code section 10851 was far from settled. When the Supreme Court subsequently resolved the issue, the effect was to essentially add an element, so that "to obtain a felony conviction for vehicle theft, the People were required to prove as an element of the crime" that a stolen vehicle was worth more than $950. (Gutierrez, supra, 20 Cal.App.5th at p. 855.) Thus, the appropriate remedy now is to reverse the jurisdictional and dispositional orders and remand the matter to allow the People the opportunity to present evidence of the vehicle's value, or to accept a reduction of the adjudication of the violation of Vehicle Code section 10851 to a misdemeanor. (In re J.R. (2018) 22 Cal.App.5th 805, 822-823.)
II. Probation Condition No. 7 Should Be Modified
In minor's original opening brief, he challenged probation condition No. 7, which requires him to: Not knowingly associate with any personally known user or seller of controlled substances nor be in a location known by the probationer to be a place where controlled substances are used or sold.
The People conceded, and we agreed that this probation condition should be modified. Thus, if, on remand, minor is reinstated on probation with this condition, it should be modified.
At the outset, we note that the juvenile court "has wide discretion to select appropriate conditions and may impose " 'any reasonable condition that is 'fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced.' " ' [Citations.]" (In re Sheena K. (2007) 40 Cal.4th 875, 889.) A "condition that imposes limitations on a person's constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad." (Id. at p. 890.)
Minor specifically argues that condition No. 7 is overbroad because it would prohibit him from associating with persons using medically necessary prescriptions or entering a pharmacy or any stores containing a pharmacy. He requests this court to modify condition No. 7 to include the concept of the illegality of controlled substances. The People agree.
Condition No. 7 has the apparent purpose of protecting minor from drug abuse and the influence of drug dealers and abusers. However, it includes the term "controlled substances," which is very broad. Controlled substances are defined and listed in Health and Safety Code sections 11054-11058. The lists include not only illegal substances like heroin and marijuana (Health & Saf. Code, § 11054, subds. (c)(11), (d)(13)), but many commonly prescribed medications. Thus, condition No. 7, as written, may prohibit minor from associating with persons using or selling prescription medication. We ascertain no rehabilitative purpose in such restriction. " 'California Courts have traditionally been wary of using the probation system for any nonrehabilitative purpose, no matter how superficially rational.' [Citation.]" (People v. Tilehkooh (2003) 113 Cal.App.4th 1433, 1444, superseded by statute on other grounds, as stated in People v. Moret (2009) 180 Cal.App.4th 839, 853.) We conclude that condition No. 7 should be modified to read as follows: Not knowingly associate with any personally known user or seller of illegal controlled substances or be in a location known by the probationer to be a place where illegal controlled substances are used or sold.
DISPOSITION
The jurisdictional and dispositional orders are reversed, and the matter is remanded to the juvenile court. The People shall have the option to attempt to prove a felony violation of Vehicle Code section 10851 at a new jurisdictional hearing or to accept a reduction of the adjudication of the violation to a misdemeanor. Furthermore, if minor is reinstated on probation and probation condition No. 7 is imposed, it should be modified to read: Not knowingly associate with any personally known user or seller of illegal controlled substances or be in a location known by the probationer to be a place where illegal controlled substances are used or sold.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. We concur: CODRINGTON
J. FIELDS
J.