Filed 10/17/18 P. v. Rubio CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Steve Malone, Judge. Affirmed.

Jose Rubio, in pro. per.; and Helen Irza, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

FACTUAL AND PROCEDURAL HISTORY

A. PROCEDURAL HISTORY

On August 16, 2017, a complaint charged defendant and appellant Jose Rubio with driving or taking a vehicle without consent under Vehicle Code section 10851, subdivision (a) (count 1). The complaint also alleged that defendant suffered a prior strike conviction in case No. FVI013254 under Penal Code sections 67, subdivisions (b) through (i), and 1170.12. The complaint further alleged that defendant suffered a prior prison term enhancement under Penal Code section 667.5, subdivision (b).

On October 13, 2017, defendant pled guilty to count 1 (driving a stolen automobile) and admitted the strike prior. In exchange for his plea, the parties agreed that defendant would receive a stipulated sentence of 16 months, doubled because of the strike, for a total term of 32 months. On November 30, 2017, defendant requested that sentencing be continued to December 29, 2017, so that the trial court could consider the California Supreme Court’s pending opinion regarding whether a driving or taking a vehicle without consent would qualify for a reduction to a misdemeanor under certain circumstances.

On December 29, 2017, the trial court sentenced defendant in accordance with his plea to 32 months. That same day, defendant filed a timely notice of appeal from the sentence or other matters after the plea. Defendant did not obtain a certificate of probable cause.

B. FACTUAL HISTORY

According to the plea agreement, defendant unlawfully drove a stolen vehicle. Defendant told the police officers at the scene that he obtained the vehicle two days earlier, on August 12, 2017. The vehicle was a 1997 Nissan pickup truck. At the sentencing hearing, the parties stipulated that the value of the vehicle was less than $950.

DISCUSSION

After defendant appealed, and upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 setting forth a statement of the case, a summary of the facts, and potential arguable issues, and requesting this court to undertake a review of the entire record.

We offered defendant an opportunity to file a personal supplemental brief. On September 12, 2018, after receiving an extension of time to do so, defendant filed his personal brief. In his brief, defendant argues that, under Proposition 47, his conviction should be for petty theft. In the alternative, defendant argues that his counsel rendered ineffective assistance of counsel. However, absent a certificate of probable cause under Penal Code section 1237.5, an appeal from a judgment following a guilty or no contest plea is limited to the review of a ruling denying a motion to suppress evidence under Penal Code section 1538.5, or to issues that do not challenge the validity of the plea but rather relate to subsequent hearings determining the degree of the crime or punishment imposed. (People v. Johnson (2009) 47 Cal.4th 668, 677.) Defendant’s notice of appeal indicates that the appeal is, in fact, “based on the sentence or other matters occurring after the plea that do not affect the validity of the plea.”

Nevertheless, we will address defendant’s argument. In essence, defendant contends that Penal Code section 490.2 requires that his conviction under Vehicle Code section 10851 be treated as a Proposition 47 misdemeanor theft. Effective November 5, 2014, Proposition 47 reclassified certain drug and theft-related offenses from felonies or wobblers to misdemeanors. (People v. Shabazz (2015) 237 Cal.App.4th 303, 308; see Pen. Code, § 1170.18, subd. (a).) Proposition 47 added Penal Code section 490.2, which provides in relevant part: “(a) 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.” (Italics added.) Defendant contends that Penal Code section 490.2 should be broadly construed to include Vehicle Code section 10851 offenses but Penal Code section 490.2 references only the grand theft statute (Pen. Code, § 487) and requires that the value of the property taken not exceed $950. The value of the vehicle is not an element of Vehicle Code section 10851 which “ ‘proscribes a wide range of conduct’ [and may be violated] ‘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).’ ” (People v. Garza (2005) 35 Cal.4th 866, 876.)

In People v. Page (2017) 3 Cal.5th 1175, the California Supreme Court held that “Vehicle Code section 10851 differs in two important ways from Penal Code section 487, subdivision (d)(1). For one thing, the Vehicle Code section does not expressly designate the offense as ‘grand theft.’ And for another, its prohibitions sweep more broadly than ‘theft,’ as the term is traditionally understood. Vehicle Code section 10851 punishes not only taking a vehicle, but also driving it without the owner’s consent, 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.’ (Veh. Code, § 10851, subd. (a).)” (Id. at p. 1182.) Citing Garza, supra, 35 Cal.4th 866, the court in Page held there is a distinction between the theft and non-theft forms of a Vehicle Code section 10851 violation: “ ‘Unlawfully taking a vehicle with the intent to permanently deprive the owner of possession is a form of theft, and the taking may be accomplished by driving the vehicle away. . . . On the other hand, unlawful driving of a vehicle is not a form of theft when the driving occurs or continues after the theft is complete. . . . Therefore, a conviction under section 10851(a) for posttheft driving is not a theft conviction . . . .’ [Citation.] [¶] By its terms, Proposition 47’s new petty theft provision, section 490.2, covers the theft form of the Vehicle Code section 10851 offense.” (Page, supra, 3 Cal.5th at p. 1183.) Simply stated, joyriding, i.e., the “unlawful driving of a vehicle[,] is not a form of theft when the driving occurs or continues after the theft is complete (for convenience, we will refer to this as posttheft driving).” (Garza, at p. 871.)

In this case, defendant’s conviction is for “driving [a] stolen auto” under Vehicle Code section 10851, not for taking a vehicle. In fact, at the sentencing hearing, defense counsel indicated that the parties and court had continued the sentencing in the case awaiting the Supreme Court’s Page decision. Although the parties stipulated that the value of the vehicle in question was below $950, “the language on the plea agreement is driving a motor vehicle” and not taking the motor vehicle. Counsel went on to state that “according to the opinion that I had read, would not apply.” We agree with defense counsel that because defendant’s Vehicle code section 10851 conviction is for posttheft driving and is not a theft conviction eligible for Proposition 47 relief. (See People v. Page, supra, 3 Cal.5th 1175.)

Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error and find no error.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

J.

We concur:

RAMIREZ

P. J.

CODRINGTON

J.