Filed 3/5/18 P. v. Rodriguez CA3
NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Yolo)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

RICARDO ANTONIO RODRIGUEZ,

Defendant and Appellant.
C084504

(Super. Ct. No. CRF167405)



Following a jury trial, defendant Ricardo Antonio Rodriguez was convicted of unlawfully driving or taking a vehicle with a prior conviction for the same offense. The trial court placed defendant on three years’ formal probation.
On appeal, he contends trial court should have granted his Penal Code section 1118.1 motion to acquit because the prosecution did not submit evidence that the car’s value exceeded $950. We shall affirm.
BACKGROUND
On December 12, 2016, Shelly Jones parked and locked her Nissan Maxima on the street in front of her home at around 5:00 p.m. She noticed the car was gone when she was getting ready to go to work the next morning. Jones reported her car stolen.
Officer John Perez of the Woodland Police Department received a lookout for a stolen white Maxima. He saw a car that matched the description at around 3:20 p.m. on December 13, 2016. Officer Perez ran the license plates and determined it was reported stolen. He conducted a traffic stop on the car, and ordered the driver, defendant, to roll down the window and throw out the ignition key. After defendant complied, Officer Perez ordered him out of the car, handcuffed him, and put him in the back of the patrol car. Defendant had a passenger in the car who was released. A search of the car found some clothing and a small amount of marijuana.
The key defendant threw out of the window was for a Kia. It had been “shaved” so that it could fit the ignition for other vehicles, allowing the possessor to use it to take other cars. Officer Perez was able to successfully start the Nissan with the shaved key.
Later that afternoon, Jones was called by the police and told she could retrieve her car by the courthouse, which she did. Items that she left in her car when she parked it were missing when she retrieved it, including her daughter’s boots, a car seat, and items for her grandbaby. No one else had permission to use her car.
Defendant waived his constitutional rights and agreed to make a statement to Officer Perez. He admitted using the shaved key to take the Nissan.
DISCUSSION
In November 2014, the voters passed Proposition 47, which reduced a number of felony or wobbler offenses to misdemeanors. (See People v. Rivera (2015) 233 Cal.App.4th 1085, 1091.) One of the crimes reduced to a misdemeanor by Proposition 47 is petty theft, defined as theft of property where value of the money, labor, real or personal property taken does not exceed $950. (§ 490.2.) (See § 1170.18, subd. (a).)
Defendant’s crime, unlawfully driving or taking a vehicle (Veh. Code, § 10851) is not on the list of felonies reduced to misdemeanors by Proposition 47. (§ 1170.18, subd. (a).) At the conclusion of evidence, defendant moved for an acquittal pursuant to section 1118.1 on the ground that felony vehicle theft requires proof that the vehicle was worth more than $950. The trial court denied the motion.
Defendant contends Proposition 47 modified Vehicle Code section 10851 so that vehicle theft is a felony only if the value of the vehicle exceeds $950. Because the prosecution submitted no evidence of the Nissan’s value, he concludes reversal is required.
While the appeal was pending in this case, the California Supreme Court concluded that section 490.2 includes convictions for vehicle theft under Vehicle Code section 10851 where it is shown the vehicle was worth $950 or less, but that it does not apply to convictions for posttheft driving under that code section. (People v. Page (2017) 3 Cal.5th 1175, 1180, 1188-1189.) Page addressed whether a defendant convicted under Vehicle Code section 10851 was eligible for relief under Proposition 47’s resentencing provision, section 1170.18. (Page, at pp. 1179-1180.) With respect to determining whether a Vehicle Code section 10851 conviction was based on vehicle theft, as opposed to posttheft driving, the court instructed: “Where the trial testimony . . . shows posttheft driving -- that is, driving the vehicle following a ‘substantial break’ after the vehicle had initially been stolen -- the defendant cannot establish eligibility [for resentencing] under section 1170.18 by declaring or testifying that he or she also stole the vehicle: such testimony would not prove the conviction was based on theft rather than on posttheft driving, and therefore would fail to establish that the defendant would only have been guilty of a misdemeanor (petty theft under section 490.2, subd. (a)) had Proposition 47 been in effect at the time of the offense.” (Page, at p. 1189.) Although this case does not involve a resentencing petition, we are nonetheless guided by Page.
Here, defendant was charged under both the theft and unlawful driving theories and the jury was instructed on both and the verdict form was for “theft or unauthorized use of a vehicle.” The evidence strongly supports a finding that defendant drove the vehicle after the theft was complete. (See People v. Cole (2004) 33 Cal.4th 1158, 1212-1213 [substantial evidence test applies to denial of section 1118.1 motions].) A theft is complete when the thief reaches a place of temporary safety. (People v. Gomez (2008) 43 Cal.4th 249, 255.) Items belonging to Jones that were in the car when she parked it were missing when she retrieved her car not long after defendant’s apprehension. When he was caught, defendant was driving a passenger who was released because she was not associated with the theft. These facts support the reasonable inference that defendant reached a point of safety after the theft, where he removed some of Jones’s property from the car and took on a passenger, and then drove the car again. This constitutes driving after the theft was complete and supports a conviction for unlawfully driving a vehicle following Page.
Any doubt is resolved by the closing argument, in which the prosecutor stated: “Jury instruction 1820, that’s the crime, unlawfully taking or driving a vehicle. Okay. That’s what we’re dealing with today. There are, like I said, two elements. One, the defendant took or drove someone else’s vehicle without the owner’s consent. Took or drove. I want you to notice that. He doesn’t even necessarily have to be the one who stole or took the vehicle to prove this element. It could simply be someone driving a vehicle for this element, without the owner’s consent. How do we know he didn’t have the owner’s consent? Because the owner testified that she gave consent to no one, including her own daughter or the other passenger in the car who coincidentally had the same last name.”
In light of the evidence of posttheft driving and the prosecutor’s election to proceed on an unlawful driving theory, any error in failing to anticipate Page is harmless beyond a reasonable doubt.
DISPOSITION
The judgment is affirmed.



/s/
Robie, J.



We concur:



/s/
Raye, P. J.



/s/
Murray. J.