Filed 4/16/18 P. v. Flores CA4/1
Opinion on transfer from Supreme Court

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

GERARDO FLORES,

Defendant and Appellant.
D070125



(Super. Ct. No. SCE355998)

APPEAL from a judgment of the Superior Court of San Diego County, Lantz Lewis, Judge. Affirmed.
Patrick Dudley, under appointment by the Court of Appeal, for Defendant and Appellant.
Kathleen A. Kenealy Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton, Seth Friedman and Sabrina Y. Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
The trial court found Gerardo Flores guilty of unlawfully taking and driving a vehicle (Veh. Code, § 10851, subd. (a)). At the sentencing hearing, the court reduced the offense to a misdemeanor under Penal Code section 17, subdivision (b)(3), suspended imposition of sentence, and placed Flores on summary probation for three years.
Flores appeals, contending the court erred by failing to reduce the offense to misdemeanor petty theft under Penal Code section 490.2, which the California Supreme Court recently held applies to the theft form of a Vehicle Code section 10851, subdivision (a), violation. (People v. Page (2017) 3 Cal.5th 1175, 1183.) We conclude the court did not err because the record shows Flores was not convicted of the theft form of a Vehicle Code section 10851, subdivision (a), violation. We, therefore, affirm the judgment.
II
BACKGROUND
A
The owner of a car loaned the car to a friend to use to get to work. The friend parked the car in the parking lot of a restaurant and used the restaurant's restroom. When he returned to the parking lot, the car was missing and the owner reported the car stolen.
Before the car was stolen, a key had broken off in the ignition and the car had to be started by sticking a screwdriver or a similar object in the ignition. The doors could not be locked because the only key to open them was the key stuck in the ignition.
A few days after the car was stolen, a sheriff's deputy saw the car parked in an odd location and noticed three young men inside of it. The deputy approached the car to talk with the men. A juvenile was sitting in the driver's seat of the car, Flores was sitting in the front passenger seat, and Flores's brother was sitting in the rear seat on the driver's side. The deputy noticed the juvenile's right hand was near a flathead screwdriver, which was tucked under the juvenile's right thigh. The deputy scanned the interior of the car and noticed the radio was playing, but there were no keys in the ignition. The deputy provided a dispatcher with the car's license plate number and the dispatcher informed the deputy the car had been reported stolen.
Flores told the deputy the men had borrowed the car from the owner's friend that morning to visit the juvenile's girlfriend. Flores said the juvenile had started out driving the car, but Flores took over at some point along the way.
When the car was returned to the owner, nothing was missing from the car and the car had not been damaged. The owner did not know Flores or the other men and had not given them permission to use the car.
When a sheriff's detective told the owner's friend the names of the men, the friend did not recognize the names and he told the detective he did not know them. However, when a defense investigator later showed him pictures of the men, he realized he knew them, but he did not know their names. A month prior to the theft, the juvenile had pestered the owner's friend to borrow the car. The owner's friend never gave any of the men or anyone else permission to drive the car.
B
Flores testified his brother and the juvenile picked him up the morning after the car was stolen. The juvenile told Flores they had borrowed the car; however, later the same day, Flores told his girlfriend in a text message the car was stolen. However, Flores testified he only suspected the car was stolen when he sent his girlfriend the text message. He did not learn the car was actually stolen until the sheriff's deputy told him the next day.
C
After considering the parties' evidence and arguments, the court found Flores guilty of violating Vehicle Code section 10851. Although the court did not believe Flores had stolen the car, the court found Flores had taken a ride in the car without the owner's consent.
D
In his sentencing brief, Flores moved to reduce his offense to a misdemeanor under Penal Code section 17, subdivision (b)(3). Flores also argued the court was required to reduce his offense to misdemeanor petty theft under Penal Code section 490.2 because the People had not proven the subject car was worth more than $950. The People argued Penal Code section 490.2 did not apply, in part because Flores was not convicted of stealing the car. Although the court assumed the car was worth less than $950 because of the car's age, the court did not reduce the offense to misdemeanor petty theft under Penal Code section 490.2 and instead reduced the offense to a misdemeanor under Penal Code section 17, subdivision (b)(3).
III
DISCUSSION
"Approved by the voters in 2014, Proposition 47 (the 'Safe Neighborhoods and Schools Act') reduced the punishment for certain theft- and drug-related offenses, making them punishable as misdemeanors rather than felonies. To that end, Proposition 47 amended or added several statutory provisions, including new Penal Code section 490.2, which provides that 'obtaining any property by theft' is petty theft and is to be punished as a misdemeanor if the value of the property taken is $950 or less." (Page, supra, 3 Cal.5th at p. 1179.)
Vehicle Code section 10851, subdivision (a), can be violated in multiple ways, including by vehicle theft, by posttheft driving, or by taking or driving a vehicle with the intent only to deprive the owner of possession temporarily. (Page, supra, 3 Cal.5th at p. 1183; People v. Garza (2005) 35 Cal.4th 866, 871.) "By its terms, Proposition 47's new petty theft provision, [Penal Code] section 490.2, covers the theft form of the Vehicle Code section 10851[, subdivision (a),] offense." (Page, at p. 1183.) " '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.' " (Ibid.)
Here, the record shows Flores's Vehicle Code section 10851, subdivision (a), conviction was not for the vehicle theft form of the offense. Consequently, regardless of the value of the victim's car, Penal Code section 490.2 did not apply to the offense and the court did not err in failing to reduce the offense to a misdemeanor petty theft under Penal Code section 490.2
IV
DISPOSITION
The judgment is affirmed.

McCONNELL, P. J.

WE CONCUR:



NARES, J.



O'ROURKE, J