Filed 5/29/18 P. v. Pineda CA4/3
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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,

Plaintiff and Respondent,

v.

EFRAIN SALVADOR PINEDA,

Defendant and Appellant.


G052804

(Super. Ct. No. 14NF5034)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County,
W. Michael Hayes, Judge. Affirmed in part, reversed in part and remanded with directions.
Robert L.S. Angres, 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, Kristine A. Guttierez and Allison V. Acosta, Deputy Attorneys General, for Plaintiff and Respondent.
The issue in this case is whether appellant was properly convicted of a felony for unlawfully taking or driving a vehicle under Vehicle Code section 10851. The matter was transferred to us from the Supreme Court for reconsideration in light of its decision in People v. Page (2017) 3 Cal.5th 1175 (Page). Page held a violation of section 10851 constitutes a misdemeanor for purposes of Proposition 47 if it was based on the theft of a vehicle valued at $950 or less. Conversely, a conviction based on posttheft driving falls outside the scope of the initiative and may be treated as a felony. Because the jury instructions in appellant’s case did not make that distinction clear, and because the record fails to disclose the basis on which the jury convicted him of violating section 10851, we reverse and remand for further proceedings.
FACTS
In December 2014, appellant was spotted driving a Chevy Silverado pickup truck about 10 minutes after it was stolen from an apartment complex in Buena Park. The police tried to pull him over, but he refused to yield, and a high-speed chase ensued. Appellant drove to Los Angeles County before the police were able to immobilize his truck and take him into custody.
At trial, there was no evidence regarding the value of the truck. Nor was there any evidence as to how appellant came into possession of the vehicle. The jury found him guilty of unlawfully taking or driving a vehicle under section 10851 and recklessly evading the police. Because the section 10851 violation was charged as a felony, the trial court sentenced appellant to two years in prison for that offense. It added eight months on the evading count, plus three years’ worth of prison priors, bringing appellant’s aggregate sentence to five years and eight months.


DISCUSSION
Appellant contends his conviction for violating section 10851 must be reversed because the jury instructions did not differentiate between a felony and misdemeanor violation of that section for purposes of Proposition 47. We agree.
Proposition 47 was passed in the fall of 2014, shortly before appellant’s case arose. The initiative was designed to alleviate the punishment for certain minor offenses, including petty theft as defined in the newly-added Penal Code section 490.2. Pursuant to that statute, “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[.]” (Pen. Code,
§ 490.2, subd. (a))
In Page, our Supreme Court discussed the interrelationship between Penal Code section 490.2 and section 10851. With respect to section 10851, the court recognized the statute encompasses both a theft offense and a nontheft offense. A theft occurs when the defendant unlawfully takes a vehicle with the intent to permanently deprive the owner of possession. And a nontheft offense occurs when the driving takes place after the theft is complete (known as “posttheft” driving) or when the defendant takes or drives the vehicle only to deprive the owner temporarily of possession (known as “joyriding”). (Page, supra, 3 Cal.5th at p. 1183.)
Page recognized that, “By its terms, Proposition 47’s new petty theft provision, [Penal Code] section 490.2, covers the theft form of the . . . section 10851 offense.” (Page, supra, 3 Cal.5th at p. 1183.) Thus, “‘after the passage of Proposition 47, an offender who obtains a [vehicle] 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.’ [Citation.]” (Ibid.) Conversely, when the value of the vehicle exceeds $950, or when the nontheft form of section 10851 is committed by virtue of posttheft driving or joyriding, the defendant may be charged with a felony. (Id. at pp. 1188-1189.)
In this case, the jury was instructed that to establish the crime of unlawfully taking or driving a vehicle under section 10851, the prosecution must prove “one, the defendant took or drove someone else’s vehicle without the owner’s consent; and, two, when the defendant did so, he intended to deprive the owner of possession or ownership of the vehicle for any period of time.” The parties agree these instructions were flawed. The problem is that, contrary to Penal Code section 490.2, they “allowed the jury to convict [appellant] of a felony violation of section 10851 for stealing the [truck], even though no value was proved – a legally incorrect theory – or for a nontheft taking or driving offense – a legally correct one.” (People v. Gutierrez (2018) 20 Cal.App.5th 847, 857 (Gutierrez).)
“‘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.’ [Citations.] ‘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.’ [Citation.]” (Gutierrez, supra, 20 Cal.App.5th at p. 857.)
Here, the jury returned a general verdict on the section 10851 charge; it was not required to disclose the basis on which it convicted appellant of that offense. Nonetheless, the Attorney General argues we can infer the jury convicted on the valid theory of posttheft driving because: 1) not only did the jury find appellant guilty of violating section 10851, it convicted him of evading the police; 2) there was no direct evidence appellant was the one who took the victim’s truck; and 3) the prosecutor emphasized appellant’s posttheft driving in closing argument. We are not persuaded.
First, the fact appellant was convicted of evading the police simply shows the jury believed he drove the truck after the police unsuccessfully tried to pull him over. It does not prove, one way or the other, whether appellant was the person who took the truck in the first instance, which is the pertinent issue in the harmless error analysis. Second, while there was no direct evidence appellant took the truck, he was spotted driving it a mere 10 minutes after it was stolen. Because there was not a substantial break between the time of the taking and appellant’s driving, we cannot lightly infer the jury convicted appellant on the theory of posttheft driving. (See Page, supra, 3 Cal.5th at p. 1188.)
Lastly, the record shows that in both his opening and closing arguments, the prosecutor asserted appellant was guilty of violating section 10851 for taking the victim’s truck. As respondent points out, the prosecutor did talk about appellant’s posttheft driving at one point in discussing the section 10851 charge. But that was in the context of proving appellant did not take the truck by accident or mistake. Other than that, the only time the prosecutor referred to appellant’s posttheft driving was in connection with the evading charge.
On this record, we are not convinced beyond a reasonable doubt the jury convicted appellant of violating section 10851 for driving the truck after it was taken. Therefore, we reverse his felony conviction for that offense “and remand 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. [Citations.]” (Gutierrez, supra, 20 Cal.App.5th at p. 857; accord, In re J.R. (2018) 22 Cal.App.5th 80.)
DISPOSITION
Appellant’s conviction in count 1 for unlawfully taking or driving a vehicle under section 10851 is reversed, his sentence is vacated, and the matter is remanded for further proceedings consistent with this opinion. On remand, the People may either accept a reduction of the conviction on count 1 to a misdemeanor with the court to
 
resentence appellant in accordance with that election or retry appellant for a felony violation of section 10851. In all other respects, the judgment is affirmed.





BEDSWORTH, ACTING P. J.

WE CONCUR:



MOORE, J.



ARONSON, J.