Filed 7/31/17 P. v. Campa 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(Placer)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

JAIME BATREZ CAMPA,

Defendant and Appellant.


C081376

(Super. Ct. No. 62131508)


Defendant Jaime Batrez Campa was convicted by jury of the unauthorized taking or driving of a vehicle (Veh. Code, § 10851) and receiving a stolen vehicle (Pen. Code, § 496d). In a bifurcated proceeding, defendant admitted he had served two prior prison terms (§ 667.5) and had one prior strike conviction within the meaning of the three strikes law (§§ 667, subds. (b)-(i), 1170, subds. (a)-(d)). The trial court sentenced him to serve five years in state prison.
On appeal, defendant contends the trial court prejudicially erred by failing to instruct the jury, sua sponte, that it was required to find the value of the stolen vehicle exceeded $950 in order to convict him of felony violations of section 496d and Vehicle Code section 10851. This contention is based on the premise that under Proposition 47 (as approved by voters Gen. Elec., Nov. 4, 2014, eff. Nov. 5, 2014) (Proposition 47), the Safe Neighborhoods and Schools Act, violations of these provisions are now misdemeanors where the value of the property is not shown to be more than $950. Therefore, according to defendant, the trial court had a sua sponte obligation to instruct on these misdemeanor offenses as lesser included offenses.
We affirm. Even assuming Proposition 47 created new misdemeanor violations of section 496d and Vehicle Code section 10851, questions that are currently pending before our Supreme Court, we conclude the trial court had no duty to instruct on these crimes as lesser included offenses. There is no evidence that would justify a conclusion defendant was guilty of the purported lesser offenses but not guilty of the greater offenses.
FACTS
Our resolution of defendant’s appeal does not require a detailed summary of the evidence admitted against him at trial. It will suffice to state defendant stole J.A.’s GMC Suburban from his driveway in Auburn. J.A. was living with his cousin, G.G., at the time. Both J.A. and G.G. knew defendant, saw him drive the Suburban away, and confronted him about it the next day. Defendant said the vehicle was being “chop[ped],” i.e., disassembled for parts, and offered to sell J.A. the parts. The Suburban was recovered a few days later in the parking lot of a retirement community, stripped of its wheel rims, dashboard, and various other parts. J.A. had the Suburban three to four months before it was stolen. He purchased the rims and tires himself. The rims alone had cost J.A. about $3,500. The day before the Suburban was recovered in this condition, the manager of the retirement community saw defendant “working on” the vehicle in the parking lot.
DISCUSSION
“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.) As relevant to this case, Proposition 47 reduced the punishment for grand theft not by amending any specific theft statute, but by adding section 490.2 to the Penal Code. Subdivision (a) of this section provides: “Notwithstanding Section 487 or any other provision of law defining grand theft, 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, except that such person may instead be punished pursuant to subdivision (h) of Section 1170 if that person has one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290.” (§ 490.2, subd. (a).)
Defendant argues the broad language of section 490.2, subdivision (a), i.e., “obtaining any property by theft where the value of the . . . property taken does not exceed . . . $950” (italics added), applies to both the unlawful taking or driving of a vehicle where, as here, the charge is based on taking the vehicle (Veh. Code, § 10851) and the receipt of a stolen vehicle (§ 496d), making misdemeanor variants of these offenses lesser included offenses, on which the trial court had a sua sponte duty to instruct. As mentioned, the question as to whether or not these offenses fall within the definition of section 490.2 is currently pending before our Supreme Court. We need not resolve the question in this case. Even assuming Proposition 47 created new crimes of misdemeanor unlawful taking of a vehicle and misdemeanor receipt of a stolen vehicle where the value of the vehicle taken or received does not exceed $950, we conclude the trial court had no duty to instruct on these crimes as lesser included offenses.
“The trial court must instruct on general legal principles closely related to the case. This duty extends to necessarily included offenses when the evidence raises a question as to whether all the elements of the charged offense are present.” (People v. DePriest (2007) 42 Cal.4th 1, 50.) However, “the existence of ‘any evidence, no matter how weak,’ will not justify instructions on a lesser included offense.” (People v. Breverman (1998) 19 Cal.4th 142, 162.) “Such instructions are required only where there is ‘substantial evidence’ from which a rational jury could conclude that the defendant committed the lesser offense, and that he [or she] is not guilty of the greater offense.” (People v. DePriest, supra, 42 Cal.4th at p. 50; see also People v. Manriquez (2005) 37 Cal.4th 547, 584; People v. Hughes (2002) 27 Cal.4th 287, 365.) Here, in light of the evidence the rims alone cost more than $3,000, there is no evidence that would justify a conclusion the Suburban’s value did not exceed $950. Indeed, the only evidence defendant points to in support of a lesser value is testimony from the manager of the retirement community that she “thought the rims [were] more expensive than the car itself.” But the rims were part of the SUV, so it matters not whether the rims were the most valuable part. As long as the value of the Suburban, with the rims attached, was greater than $950, defendant was guilty of the crimes he was convicted of committing even if we were to accept his premise Proposition 47 created lesser included offenses where the value of the vehicle did not exceed that amount. In short, there is no evidence defendant was guilty only of these purported lesser offenses.
Based on the record, the trial court had no duty to instruct on the offenses defendant claims were created by Proposition 47.
DISPOSITION
The judgment is affirmed.



/s/
HOCH, J.



We concur:



/s/
ROBIE, Acting P. J.



/s/
DUARTE, J.