Filed 5/18/18 P. v. Nguyen CA4/1
Opinion on transfer from Supreme Court
OPINION AFTER TRANSFER FROM THE CALIFORNIA 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

CUONG HUU NGUYEN,

Defendant and Appellant.
D071630



(Super. Ct. No. SCD267778)

APPEAL from a judgment of the Superior Court of San Diego County, Peter L. Gallagher, Judge. Reversed.
Richard Schwartzberg, 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, A. Natasha Cortina and Amanda E. Casillas, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted defendant Cuong Huu Nguyen of one felony count of unlawfully taking or driving a vehicle (Veh. Code, § 10851, subd. (a)), and he admitted to two prison priors for the same offense. The trial court sentenced him to five years' imprisonment and imposed a restitution fine of $1,500. On appeal, Nguyen contends we should reduce his felony conviction to a misdemeanor because he maintains Proposition 47, the Safe Neighborhoods and Schools Act of 2014 (Proposition 47), reclassified section 10851 as a form of petty theft when the value of the stolen vehicle does not exceed $950, and because the People failed to prove that the value of the vehicle he took exceeded this threshold. He further contends the trial court abused its discretion in denying him a "split sentence," and in imposing a restitution fine of $1,500.
In our original nonpublished opinion, we concluded Nguyen had not established the factual predicate of his legal challenge: that his section 10851 violation was theft-based (i.e., intending to permanently deprive the owner of possession)—to which Proposition 47 might apply—rather than driving-based (i.e., intending to only temporarily deprive the owner of possession)—to which Proposition 47 undisputedly would not apply. We also explained that even if we were to reach the legal merits of Nguyen's challenge, we would follow the line of cases holding that the definition of misdemeanor petty theft adopted via Proposition 47 does not apply to section 10851. Consequently, we affirmed Nguyen's conviction and sentence.
The California Supreme Court granted review of our decision and ordered briefing deferred pending its decision in People v. Page, S230793. On November 30, 2017, the court issued People v. Page (2017) 3 Cal.5th 1175 (Page), which held that, "by its terms, Proposition 47's new petty theft provision . . . covers the theft form of the . . . section 10851 offense " (id. at p. 1183, italics added) such that " '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.). The Supreme Court transferred this case back to us for reconsideration in light of Page.
Nguyen and the Attorney General submitted supplemental briefs regarding the import of Page. They agree we must reverse Nguyen's felony conviction, but disagree about what (if any) further proceedings may occur on remand. Nguyen contends the prosecution's failure to produce evidence of the value of the victim's car constitutes a failure of proof that requires reduction of his offense from a felony to a misdemeanor. The Attorney General contends the issue is merely one of misinstruction, allowing the prosecution, on remand, to decide whether to accept a reduction of the offense to a misdemeanor or to retry the offense as a felony.
For reasons we will explain, we agree with the Attorney General. Accordingly, we vacate our original opinion, reverse the judgment, and remand for further proceedings as set forth in the disposition.
FACTUAL AND PROCEDURAL BACKGROUND
Nguyen was charged with one count of unlawfully taking or driving a vehicle. (§ 10851, subd. (a).) It was further alleged he had suffered two prior felony convictions for violating section 10851, which resulted in prison commitments. (Pen. Code, §§ 666.5, 667.5, subd. (b), 668.)
Prosecution Case
On the night of July 9, 2016, Francisco S. parked his 1994 Toyota Camry on the street in front of his house. When he got up at about 4:30 the next morning to get ready for work, he heard the sound of a car starting, looked out the window, and saw the taillights of his car as an unidentified person drove it away. The keys to the car were inside Francisco's house, and he had not given anyone permission to take it. He gathered his vehicle registration documents and called 911 within about five minutes.
Within minutes of police dispatch announcing Francisco's report, responding patrol officers saw Nguyen drive by in Francisco's car. They initiated a traffic stop and arrested Nguyen without incident. In the ignition, police found a key attached to a keychain that held several "shaved" keys. Nguyen stipulated he "knew/knows what a shaved or altered key is, and it can be used . . . to operate a vehicle for which it is not initially created."
Defense Case
Nguyen testified that on the day before his arrest, he was smoking methamphetamine at his mother's home with a friend named "Oscar" who lived two blocks away. Nguyen had known Oscar for a few years, but told police he didn't know Oscar's last name, address, or phone number. When Nguyen asked Oscar if he could borrow a car, Oscar offered his mother's, but said Nguyen would have to wait until she returned from work. After Oscar left Nguyen's home in the mid-afternoon, Nguyen checked three or four times "all through the night" to see if Oscar's mother had returned. Oscar eventually told Nguyen the car was available for no more than "like an hour or two." Oscar gave Nguyen the keys, described his mother's car, and pointed to where it was parked. Nguyen used the keys to drive off in the car that turned out to be Francisco's. He testified he was only borrowing the car and did not know it was stolen.
On cross-examination, Nguyen admitted he suffered felony theft-related convictions in 2007, 2008, and 2009, and one misdemeanor theft-related conviction in 2015.
Verdict and Sentence
The jury deliberated for about 90 minutes before returning a guilty verdict. In a bifurcated proceeding, Nguyen admitted the prison prior allegations.
The trial court sentenced Nguyen to custody in county jail for five years, and imposed a restitution fine in the amount of $1,500.
DISCUSSION
I. Relevant Legal Principles
Section 10851, subdivision (a) provides: "Any person who drives or takes a vehicle not his or her own, without the consent of the owner thereof, and with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle, whether with or without intent to steal the vehicle, . . . is guilty of a public offense . . . ." A violation of section 10851, subdivision (a) can be charged as either a felony or a misdemeanor. (See People v. Lee (2017) 16 Cal.App.5th 861, 866.)
The California Supreme Court has explained that a violation of section 10851 can—but does not necessarily—constitute a theft offense. (See People v. Garza (2005) 35 Cal.4th 866, 871.) "A person can violate section 10851[, subdivision] (a) 'either by taking a vehicle with the intent to steal it or by driving it with the intent only to temporarily deprive its owner of possession (i.e., joyriding).' " (Id. at p. 876, italics added.) Unlawfully taking a vehicle with the intent to permanently deprive the owner of possession constitutes a theft offense. (Id. at p. 871.) However, driving a vehicle with the intent only to temporarily deprive the owner of possession (joyriding) does not constitute a theft offense. (Ibid.)
"The voters approved Proposition 47 at the November 4, 2014 General Election, and it became effective the next day." (People v. Diaz (2015) 238 Cal.App.4th 1323, 1328.) "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.)
Before the enactment of Proposition 47, Penal Code section 487 generally defined "[g]rand theft" as the theft of property worth more than $950, or the theft of certain types of property regardless of their value (e.g., automobiles and firearms). (Pen. Code, § 487, subds. (a), (d)(1)-(2).) Penal Code section 488 defined "petty theft" as theft that is not grand theft. (Pen. Code, § 488 ["Theft in other cases is petty theft."].)
Proposition 47 expanded the definition of petty theft by adding section 490.2 to the Penal Code, which provides: "Notwithstanding [Penal Code] Section 487 or any other provision of law defining grand theft, obtaining any property by theft where the value of the . . . 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).)
Courts of Appeal were divided over whether Proposition 47's new petty theft definition applied to theft-based violations of section 10851. (See fn. 3, ante.) In Page, the California Supreme Court resolved that conflict, concluding that "by its terms, Proposition 47's new petty theft provision . . . covers the theft form of the . . . section 10851 offense" (Page, supra, 3 Cal.5th at p. 1183, italics added) such that " '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.). The prosecution bears the burden of proving the value of the stolen vehicle as an element of the crime. (See People v. Gutierrez (2018) 20 Cal.App.5th 847, 855 (Gutierrez); In re D.N. (2018) 19 Cal.App.5th 898, 903.)
Thus, under Proposition 47 as construed in Page, a theft-based violation of section 10851 is a misdemeanor if the value of the stolen vehicle does not exceed $950, and a felony if the value exceeds $950. (Page, supra, 3 Cal.5th at p. 1183.) A driving-based violation of section 10851 remains a potential felony (because it is a wobbler offense) regardless of the value of the driven vehicle. (Page, at p. 1188 & fn. 5.)
II. Analysis
Nguyen and the Attorney General agree Page requires us to reverse Nguyen's conviction. We agree. When Nguyen was convicted, most courts concluded a defendant could be convicted of a felony for either a theft-based or driving-based violation of section 10851 regardless of the vehicle's value. Now, as clarified by Page, a felony conviction is proper only if it is based on either (1) a theft of a vehicle proven to be worth more than $950; or (2) a driving-based violation involving a vehicle of any value. (See Page, supra, 3 Cal.5th at pp. 1183, 1187; In re J.R. (2018) __ Cal.App.5th __, 2018 WL 1960028, at p. *7 (Apr. 26, 2018, H043051).) Because the trial court's jury instructions did not distinguish between theft-based violations and driving-based violations (or otherwise require the jury to make a finding regarding the vehicle's value), it is possible the jury convicted Nguyen of a felony on a legally incorrect theory—theft of a vehicle not proven to be worth more than $950. Accordingly, we reverse his conviction.
Nguyen contends our reversal is the result of a failure of proof, thus requiring that we reduce his conviction to a misdemeanor with no further proceedings allowed on remand. In support, he cites People v. Love (2008) 166 Cal.App.4th 1292, in which the defendant was convicted of a variety of felony grand theft offenses—none of which involved vehicles—under statutes that unambiguously required proof that the value of the stolen property exceeds $400. (Id. at pp. 1295-1297, 1300-1301.) Notably, the Attorney General conceded the defendants' convictions "must be reduced to misdemeanors." (Id. at pp. 1300-1301.) Love is, thus, unhelpful because it does not address the nuance presented here.
By contrast, the Attorney General relies on a case that arose in the same post-Page circumstance we face here. (See Gutierrez, supra, 20 Cal.App.5th 847.) The Gutierrez court concluded reversal was required because the jury was instructed on both a legally correct theory (a driving-based offense) and a legally incorrect theory (a theft-based violation "even though no value was proved"), and it was impossible to determine on which theory the jury had convicted the defendant. (Id. at p. 857.) The court concluded double jeopardy presented no bar to further proceedings on remand because of the conflicting authorities on the issue at the time of trial, the majority of which had concluded Proposition 47 did not apply to section 10851. (Gutierrez, at p. 858 & fn. 11.)
In concluding double jeopardy did not bar further proceedings on remand, the Gutierrez court declined to follow another post-Page decision, In re D.N., supra, 19 Cal.App.5th 898. (Gutierrez, supra, 20 Cal.App.5th at pp. 857-858.) The In re D.N. court reasoned that the 2014 enactment of Proposition 47, together with the conflicting appellate decisions regarding whether it applied to section 10851, put the prosecutor on notice that the value of the stolen vehicle would be at issue in the October 2016 adjudication hearing. (In re D.N., at pp. 900, 903, fn. 1.) The court concluded: "The People should have been well aware the value of the stolen vehicle was relevant on whether the offense was a felony. The People chose instead to gamble, and lost their bet, that the Supreme Court would find . . . section 10851 outside the ambit of Proposition 47 . . . ." (Id. at p. 903.)
The Gutierrez court found In re D.N.'s double-jeopardy analysis unpersuasive: "Given the conflicting authority on the issue and the prevailing decisions in the Courts of Appeal at the time of Gutierrez's trial, we decline to fault either the trial court or the prosecutor for failing to correctly anticipate the outcome of cases pending before the Supreme Court. This is not an instance where either the court or the prosecutor misinterpreted or failed to follow established law." (Gutierrez, supra, 20 Cal.App.5th at p. 858, fns. omitted.)
The same day the Attorney General filed his supplemental brief in this case, another appellate court published an opinion following Gutierrez and declining to follow In re D.N. (See In re J.R. (2018) __ Cal.App.5th __, 2018 WL 1960028, at p. *7 (Apr. 26, 2018, H043051). The In re J.R. court noted federal precedent allowed "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 . . . ." ' " (Id. at p. *8.) Under the circumstances, the In re J.R. court declined to fault the prosecution for not correctly predicting how the Supreme Court would decide Page: "Proposition 47 did not amend . . . section 10851, subdivision (a) and, as the ensuing [C]ourts of [A]ppeal opinions show, its impact on that provision was not obvious. Nor are we convinced that Page was foreseeable at the time of the minor's adjudication in late fall of 2015." (In re J.R., at p. *9.)
We find the reasoning of Gutierrez and In re J.R. persuasive. At the time of Nguyen's trial, Courts of Appeal were divided on whether Proposition 47's petty theft provisions applied to section 10851. The majority of published appellate decisions concluded they did not. Indeed, in our original opinion we indicated that we would have followed the reasoning of the majority line of cases were we to reach that issue. Moreover, the fact Nguyen never raised this issue below further highlights its unforeseeability.
DISPOSITION
The judgment is reversed, and the matter is remanded for further proceedings consistent with this opinion. On remand, the prosecution may either (1) accept a reduction of the conviction to a misdemeanor, with the trial court to resentence Nguyen in accordance with that election; or (2) retry Nguyen for a felony violation of section 10851.


HALLER, J.

WE CONCUR:



McCONNELL, P. J.



NARES, J.