Opinion
F076386
04-02-2020
THE PEOPLE, Plaintiff and Respondent, v. LEONARDO FERNANDEZ, Defendant and Appellant.
Peter John Boldin and Jyoti Malik, under appointments by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Timothy L. O'Hair, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BF166793A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. J. Eric Bradshaw, Judge. Peter John Boldin and Jyoti Malik, under appointments by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Timothy L. O'Hair, Deputy Attorneys General, for Plaintiff and Respondent.
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Leonardo Fernandez was convicted of violating Vehicle Code section 10851, subdivision (a). "That statute, which prohibits taking or driving a vehicle without the owner's consent and with the intent to temporarily or permanently deprive the owner of title or possession, can be violated by a range of conduct, only some of which constitutes theft." (People v. Lara (2019) 6 Cal.5th 1128, 1135 (Lara).) Evidence that a vehicle is worth more than $950 is necessary to prove felony vehicle theft. (Id. at p. 1136.)
Unlabeled statutory references are to the Vehicle Code.
On appeal, Fernandez contends he was convicted of felony vehicle theft and, because there is no evidence establishing the vehicle's value, his conviction must be reduced to a misdemeanor. We conclude Fernandez was convicted of vehicle theft and agree his conviction must be reduced to a misdemeanor.
BACKGROUND
Relevant Charges
By an amended information filed on August 24, 2017, Fernandez was charged in count 1 with violating section 10851, subdivision (a), for unlawfully taking or driving a vehicle. He was charged in count 2 with violating Penal Code section 496d, subdivision (a), for receiving a stolen vehicle.
Counts 1 and 2 each included enhancements for suffering a prior strike conviction (Pen. Code, §§ 667, subd. (c)-(j) and 1170.12, subd. (a)-(e)) and serving three prior prison terms (Pen. Code, § 667.5, subd. (b)).
Fernandez was also charged with three misdemeanors not relevant to this appeal. Those charges were: Count 3, Penal Code section 148, subdivision (a)(1), resisting, obstructing, or delaying peace officer; Count 4, Penal Code sections 135 and 664, attempted concealment of evidence; and Count 5, Health and Safety Code section 11364, possessing controlled substance paraphernalia.
Trial Evidence
The victim testified he watched Fernandez steal his vehicle on January 7, 2017. Some time later the same evening, a law enforcement officer saw the stolen vehicle being driven near an apartment complex. The stolen vehicle was parked, and Fernandez fled on foot. No one else was in the vehicle.
In argument, the prosecutor argued Fernandez was arrested about one hour after stealing the vehicle. The evidence, as presented, did not establish a clear timeline.
As Fernandez fled, the officer gave chase and yelled, "Stop." But Fernandez did not stop. Instead, he hid alongside a bush at the apartments. A second officer saw Fernandez discarding various items from his pockets. A glass pipe was found nearby. He was arrested shortly thereafter.
After his arrest, Fernandez said he did not personally steal the vehicle. Rather, he asked "Ace" to steal the vehicle in exchange for drugs. Fernandez took possession of the vehicle only after "[t]he exchange was made ...."
Ace was not identified at the trial.
Relevant Instructions
To find Fernandez guilty of count 1, section 10851, subdivision (a), the jury was instructed the evidence must prove beyond a reasonable doubt he "took or drove someone else's vehicle without the owner's consent." (CALCRIM No. 1820.) The jury was further instructed "[a] person may be guilty of a crime in two ways. One, he or she may have directly committed the crime. ... Two, he or she may have aided and abetted a perpetrator, who directly committed the crime." (CALCRIM No. 400.)
To find Fernandez guilty of count 2, Penal Code section 496d, subdivision (a), the jury was instructed the evidence must prove beyond a reasonable doubt he "received ... a motor vehicle that had been stolen" and knew it was stolen. (CALCRIM No. 1750.) The jury was further instructed Fernandez "cannot be guilty of Count 2 if" he was found guilty of vehicle theft in count 1. If they found him guilty of vehicle theft in count 1, they were instructed to "not fill out or sign the verdict form for Count 2." These instructions informed the jury they must return a verdict on count 2 if they convicted Fernandez of driving but not stealing the vehicle in count 1. (CALCRIM No. 3516.)
These instructions were based on People v. Calistro (2017) 12 Cal.App.5th 387, 400-402.
Verdicts and Sentence
Fernandez was found guilty of violating section 10851, subdivision (a), for "unlawfully driving or taking a vehicle," as charged in count 1. No verdict was returned on count 2. He was sentenced to serve five years in prison.
Verdicts on the remaining misdemeanor counts were as follows: Count 3 - guilty; count 4 - guilty; and count 5 - not guilty.
DISCUSSION
Proposition 47 went into effect on November 5, 2014. (Lara, supra, 6 Cal.5th at p. 1132.) It redefined petty theft as "obtaining any property by theft where the value of the ... property taken does not exceed nine hundred fifty dollars ($950) ...." (Ibid.; Pen. Code, § 490.2, subd. (a).) Petty theft "shall be punished as a misdemeanor ...." (Pen. Code, § 490.2, subd. (a).) On November 30, 2017, in People v. Page (2017) 3 Cal.5th 1175, 1180, the California Supreme Court held petty theft includes vehicle theft.
This timeframe raises the following question: If a defendant is tried and convicted for felony vehicle theft between the dates when Proposition 47 took effect and Page, supra, was decided— November 5, 2014 to November 30, 2017—but the evidence at the defendant's trial insufficiently proved the vehicle was valued over $950, may the prosecution adduce additional evidence to prove the felony vehicle theft value element at a second trial? We conclude the answer is no.
The trial in this case falls precisely within these parameters. Fernandez argues the evidence at his trial was insufficient to prove felony vehicle theft because no evidence established the vehicle's value. He believes retrial is therefore barred.
The People do not dispute the evidence. They argue the issue presented is not evidentiary sufficiency but rather instructional error because Page, supra, was decided after Fernandez's crime and conviction. They believe a retrial is appropriate for the same reason.
Several cases have previously addressed these arguments. The cases explain the correct resolution lies in the verdict.
When a section 10851 verdict is ambiguous as to underlying theft or driving, the issue presented is instructional error. (People v. Gutierrez (2018) 20 Cal.App.5th 847, 857-858 & fn. 10 [acknowledging instructional error issue, not evidentiary sufficiency, due to ambiguous verdict]; People v. Jackson (2018) 26 Cal.App.5th 371, 378, fn.7 [same]); People v. Bussey (2018) 24 Cal.App.5th 1056, 1061-1062 [same].) When a section 10851 verdict is for vehicle theft, the issue presented is evidentiary sufficiency. (In re D.N. (2018) 19 Cal.App.5th 898, 903-904 (D.N.).)
Here, we conclude Fernandez was convicted of vehicle theft. Accordingly, the issue presented is evidentiary sufficiency. Because the evidence is insufficient to prove the vehicle's value, we must reduce the felony conviction to a misdemeanor. As in all insufficient evidence cases, double jeopardy principles bar a retrial.
1. Fernandez Was Convicted of Vehicle Theft
Fernandez was charged in count 1 of violating section 10851 for "unlawfully driving or taking a vehicle ...." He was charged in count 2 with violating Penal Code section 496d, receiving a stolen vehicle.
As mentioned, the court instructed the jury to leave the count 2 verdict form blank if they convicted Fernandez of vehicle theft in count 1. The jury, consistent with these instructions, returned a guilty verdict on count 1, section 10851, subdivision (a), and left the count 2, Penal Code section 496d, subdivision (a), verdict form blank.
The clerk read each verdict in open court. While reading the verdicts the clerk did not reference count 2 or its blank verdict form. After the verdicts were read, the court asked, "Members of the jury, is the verdict as just read your individual, true, and correct verdict?" The court noted "[a]ffirmative responses." Neither party inquired further.
Count 2 was later dismissed immediately after sentencing with no further discussion.
Fernandez argues the verdict clearly indicates a theft conviction. The People contend the verdict is ambiguous. They argue the "jury's verdict on count 1 was a general one that did not state what theory it relied upon." Fernandez has the better argument.
It is true the count 1 verdict does not explicitly state a theory. But finding the theory underlying the verdict ambiguous would ignore the fact, as the People acknowledge, a "blank verdict form was returned on count 2." The jury directly complied with the court's instructions: Leave the count 2 verdict form blank if Fernandez is guilty of vehicle theft in count 1. The jury "[a]ffirmative[ly] respon[ded]" the verdicts as read—and not read—were "true" and "correct."
The People caution "this Court [to] not attempt to read the tea leaves of the jury's deliberations." Yet they speculate the jury did not comply with the court's instructions in returning a blank count 2 verdict form.
The People ask us to further indulge in speculation and affirm the judgment by finding the jury would "have convicted [Fernandez] under the alternative driving theory." This argument ignores both the law and the record.
" 'Posttheft driving in violation of ... section 10851 consists of driving a vehicle without the owner's consent after the vehicle has been stolen, with the intent to temporarily or permanently deprive the owner of title or possession. Where the evidence shows a "substantial break" between the taking and the driving, posttheft driving may give rise to a conviction under Vehicle Code section 10851 distinct from any liability for vehicle theft.' " (Lara, supra, 6 Cal.5th at p. 1136, quoting Page, supra, 3 Cal.5th at p. 1188.)
The People's speculation ignores the "substantial break" rule, announced originally in People v. Kehoe (1949) 33 Cal.2d 711, 715. The record here discloses all events occurred on the same evening. It does not establish a timeline of events and, for that reason, we cannot presume a " 'substantial break' between the taking and the driving ...."
The evidence clearly proved Fernandez either directly stole the vehicle—as the victim testified—or aided and abetted its stealing—as Fernandez confessed. Indeed, defense counsel conceded the crime. Driving, in and of itself, does not transform a vehicle theft into a driving crime. We decline the invitation to speculate and conclude the jury would "have convicted ... under the alternative driving theory."
" ' [W]e presume that jurors are intelligent and capable of understanding and applying the court's instructions.' " (People v. Mora and Rangel (2018) 5 Cal.5th 442, 515.) " 'Absent some showing to the contrary, we presume the jury followed the court's instructions.' " (People v. Krebs (2019) 8 Cal.5th 265, 335.) Accordingly, the verdicts—and lack thereof—demonstrate Fernandez was convicted of vehicle theft. The issue presented is thus one of evidentiary sufficiency.
2. The Evidence Was Insufficient to Prove Felony Vehicle Theft
Fernandez argues the evidence insufficiently proves felony vehicle theft. The People do not argue otherwise.
"When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] ... We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] A reviewing court neither reweighs evidence nor reevaluates a witness's credibility." (People v. Lindberg (2008) 45 Cal.4th 1, 27.)
"[A] theft-based violation of Vehicle Code section 10851 may be punished as a felony only if the vehicle is shown to have been worth over $950 ...." (Lara, supra, 6 Cal.5th at p. 1136.) In the absence of such evidence, vehicle theft is a misdemeanor. (Ibid.; Pen. Code, § 490.2, subd. (a).)
After carefully reviewing the record, we agree with Fernandez the evidence is insufficient to prove felony vehicle theft. His conviction for felony vehicle theft cannot stand because no evidence in the record establishes the vehicle's value.
3. Double Jeopardy Bars a Retrial
Retrial is forbidden when "the judgment is reversed because, as a matter of law, the evidence was insufficient to support a conviction." (People v. Eroshevich (2014) 60 Cal.4th 583, 591.) Here, the evidence is insufficient to prove felony vehicle theft because there is no evidence establishing the vehicle's value. Fernandez may not be retried in an attempt to adduce additional evidence.
The People acknowledge "double jeopardy forbids retrial after a reversal due to insufficient evidence ...." Nonetheless, they urge us to grant a retrial and in support they cite two cases, People v. Eagle (2016) 246 Cal.App.4th 275 (Eagle) and People v. Figueroa (1993) 20 Cal.App.4th 65 (Figueroa). These cases are distinguishable.
In Eagle, supra, the law was amended after the appellant's conviction. The amended law included an additional element necessary to prove drug transportation—namely, that drug transportation requires proof of intent to sell drugs. (Eagle, supra, 246 Cal.App.4th at pp. 278-280.)
In Figueroa, supra, the law was similarly amended after the appellant's conviction. The amended law there required additional evidence necessary to prove a drug trafficking near schools enhancement—namely, that school was in actual session. (Figueroa, supra, 20 Cal.App.4th at pp. 69-72.) These two cases found retrial appropriate to prove the additional elements. (Eagle, supra, 246 Cal.App.4th at p. 280; Figueroa, supra, 20 Cal.App.4th 65, 72, fn. 2.)
In contrast, "the law [here] changed [more than] two years before [Fernandez] committed [his] offenses ...." (D.N., supra, 19 Cal.App.5th at p. 903.) "The People were thus on notice ... that [felony] vehicle theft" required evidence the vehicle was worth more than $950. (Ibid.) Absent that evidence, the evidence is insufficient to prove felony vehicle theft.
Some courts have limited D.N., supra, 19 Cal.App.5th 898 to crimes committed after People v. Ortiz (2016) 243 Cal.App.4th 854 first held felony vehicle theft requires proof of value on January 8, 2016. (See People v. Wehr (2019) 41 Cal.App.5th 123, 135-136; In re J.R. (2018) 22 Cal.App.5th 805, 822.) Because this crime was committed after that date, we take no position on this limitation.
DISPOSITION
The judgment is reversed. The conviction in count 1 is reduced to a misdemeanor. (Pen. Code, § 1181(6).) On remand, the trial court shall appropriately resentence Fernandez.
Because the judgment is reversed, we do not address Fernandez's separate claims related to equal protection and sentencing issues.
/s/_________
SNAUFFER, J. I CONCUR: /s/_________
SMITH, J. POOCHIGIAN, J., dissenting.
I respectfully dissent from the majority opinion's decision to reverse defendant's felony conviction in count 1 for unlawfully taking or driving the victim's vehicle in violation of Vehicle Code section 10851, subdivision (a). I agree that as a result of the enactment of Proposition 47, the People have the burden to prove the victim's stolen vehicle was worth $950 or more when a defendant is charged with the "taking" aspect of section 10851. Based on the facts of this case, however, I disagree that defendant's conviction must be reversed for insufficient evidence as a matter of law. Instead, the court's failure to instruct on an element of the offense was an instructional error, and the possibility the jury relied on a legally incorrect theory to convict defendant requires reducing defendant's felony conviction in count 1 to a misdemeanor, and remanding the matter to allow the People to either accept the reduction of the conviction to a misdemeanor or retry the offense as a felony with appropriate instructions. (People v. Gutierrez (2018) 20 Cal.App.5th 847, 857 (Gutierrez).)
All further statutory citations are to the Vehicle Code unless otherwise indicated.
DISCUSSION
Section 10851"[A] defendant convicted under section 10851(a) of unlawfully taking a vehicle with the intent to permanently deprive the owner of possession has suffered a theft conviction ...." (People v. Garza (2005) 35 Cal.4th 866, 871 (Garza).)
"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," which the Supreme Court has described as "posttheft driving." (Garza, supra, 35 Cal.4th at p. 871.)
As a result of the enactment of Proposition 47, a theft-based violation of section 10851 for taking a vehicle can be a felony only if the value of the vehicle exceeds $950. (People v. Page (2017) 3 Cal.5th 1175, 1182-1183; Gutierrez, supra, 20 Cal.App.5th at p. 854.) A violation of section 10851 "committed by posttheft driving may be charged and sentenced as a felony regardless of value." (People v. Lara (2019) 6 Cal.5th 1128, 1136, fn. omitted.)
The California Supreme Court had previously declined to address whether a violation of section 10851 committed by taking a vehicle with the intent only of depriving the owner temporarily of possession (sometimes referred to as joyriding) must be treated as the equivalent of vehicle theft for purposes of Penal Code section 490.2. (People v. Page, supra, 3 Cal.5th at p. 1188, fn. 5; People v. Lara, supra, 6 Cal.5th at p. 1136, fn. 3.)
In People v. Bullard (Mar. 23, 2020, S239488) ___ Cal.5th ___ , the court recently addressed "whether Proposition 47 ... requires courts to draw a distinction under section 10851 between permanent and temporary vehicle takings - granting sentencing relief to those who take vehicles permanently but denying relief to those who take vehicles temporarily. We conclude the answer to this question is no: A person who has unlawfully taken a vehicle in violation of section 10851 is not disqualified from Proposition 47 relief because the person cannot prove he or she intended to keep the vehicle away from the owner indefinitely." (Id. at *10.)
Bullard thus clarified:
"Except where a conviction is based on posttheft driving (i.e., driving separated from the vehicle's taking by a substantial break), a violation of section 10851 must be punished as a misdemeanor theft offense if the vehicle is worth $950 or less. In pre-Proposition 47 cases, where the defendant seeks resentencing or redesignation under Penal Code section 1170.18, the defendant bears the burden of proof to show the relevant facts; in cases arising, tried, or sentenced after Proposition 47 came into effect, the People bear that burden. [Citations.]" (People v. Bullard, supra, ___ Cal.5th ___ [2020 Cal. LEXIS at pp. *29-30.])
Gutierrez
In Gutierrez, supra, 20 Cal.App.5th 847, the defendant was convicted after a jury trial of a felony violation of section 10851, subdivision (a), and argued his felony conviction should be reduced to a misdemeanor under Proposition 47 because there was no evidence the vehicle's value was at least $950. (Gutierrez, at pp. 849, 853, 855.) Gutierrez agreed because there had been an instructional error:
"Although the record cannot support a guilty verdict for felony vehicle theft, the problem with [the defendant's] felony conviction is not the sufficiency of the evidence but jury instructions that failed to adequately distinguish among, and separately define the elements for, each of the ways in which section 10851 can be violated. As Page made clear, when a violation of section 10851 is 'based on theft,' a defendant can be convicted of a felony only if the vehicle was worth more than $950. [Citation.] It is also necessary to prove the vehicle was taken with an intent to permanently deprive the owner of its possession - 'a taking with intent to steal the property.' [Citation.] The court's instructions in this case included neither of those essential elements for a felony theft conviction." (Id. at p. 856, italics added, fn. omitted.)
Gutierrez noted that in closing argument at the defendant's trial, the prosecutor relied on evidence that showed the defendant took and drove the vehicle without consent. Gutierrez further noted the jury was instructed on the elements of the offense with the pattern version of CALCRIM No. 1820, which did not state that for the taking aspect of the offense, the vehicle's value had to be $950 or more for the felony violation. (Gutierrez, supra, 20 Cal.App.5th at pp. 851-852.) The incomplete instruction allowed the jury to convict defendant "of a felony violation of section 10851 for stealing the ... car, even though no value was proved - a legally incorrect theory - or for a nontheft taking or driving offense - a legally correct one." (Id. at p. 857.)
" '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.]" (Ibid.)
Gutierrez held that based on the instructional error, defendant's felony conviction had to be reversed because the court could not determine whether the defendant was convicted "under a legally valid nontheft theory or a legally invalid theory of vehicle theft that did not include as an element the value of the stolen car." (Gutierrez, supra, 20 Cal.App.5th at p. 857.) However, Gutierrez remanded the matter to allow the People to either accept a reduction of the conviction to a misdemeanor or retry the offense as a felony to a properly instructed jury "if the People can in good faith bring such a case." (Id. at p. 858.)
The Court's Instructional Error
With this background in mind, I agree with the majority opinion that the jury likely relied on the "taking" aspect of section 10851 to find defendant guilty of count 1. The jury found defendant guilty of count 1 and did not return a verdict for count 2, receiving a stolen vehicle. The jury was instructed that if it found defendant guilty of count 1 based on taking the vehicle, either personally or as an aider and abettor, then it could not return a verdict in count 2 for receiving a stolen vehicle. We presume the jury followed the court's instructions when it did not return a verdict for count 2.
I also agree the jury should have been instructed that the People had the burden of proving the vehicle was worth $950 or more in order to convict defendant of a felony violation of section 10851. As a result, defendant was prejudiced by the court's erroneous instruction, and his felony conviction in count 1, likely based on taking the vehicle, must be reduced to a misdemeanor.
However, I disagree with the majority opinion's conclusion that since the jury convicted defendant based on the taking aspect of section 10851, the instant case involves evidentiary error and cannot be remanded for further proceedings where the People may either accept a reduction of the charged offense to a misdemeanor or retry defendant for a felony violation. The majority opinion finds that remand is prohibited on the "taking" aspect because the People failed to introduce evidence the stolen vehicle was worth more than $950. (Maj. opn., ante, at pp. 5, 7) The majority opinion further concludes remand is prohibited for posttheft driving aspect of count 1 since the evidence "clearly proved" defendant "either directly stole the vehicle" or aided and abetted the theft, and the record does not disclose a sufficient timeline to find a " ' "substantial break" between the taking and the driving,' " so this court must "decline the invitation to speculate and conclude the jury would 'have convicted ... under the alternate driving theory.' " (Id. at pp. 6-7, fn. 8.)
I believe this case is similar to the instructional error addressed in Gutierrez and the matter should be remanded accordingly.
The Value of the Stolen SUV
The value to be placed on stolen property for purposes of a theft prosecution is the reasonable and fair market value. (People v. Gopal (1985) 171 Cal.App.3d 524, 541; People v. Swanson (1983) 142 Cal.App.3d 104, 107; People v. Cook (1965) 233 Cal.App.2d 435, 437-438.) An owner of personal property is qualified to give an opinion about its value. (Evid. Code, § 813, subd. (a)(2); People v. Henderson (1965) 238 Cal.App.2d 566, 566-567.)
I believe that a jury properly instructed on the valuation element could return a legally valid verdict for count 1 on the taking theory, based on either defendant personally taking the vehicle or aiding or abetting his alleged accomplice in doing so. Tyler testified he was driving a 2015 Denali SUV when it was stolen in January 2017. Tyler's testimony demonstrates the SUV was running and operable. The vehicle had a keyless start feature and an OnStar system, and both were functioning. Tyler's testimony thus strongly implied the SUV was worth $950 or more, and on remand the prosecutor could simply ask Tyler about the condition of his vehicle and his opinion of its fair market value to satisfy the People's burden of proof on the valuation element.
While it is virtually incomprehensible that an operable 2015 Denali SUV could be worth under $950 in 2017, the burden of proof circumscribes our ability to rely on common sense or probabilities in assessing minimum value to find the instructional error was not prejudicial. --------
"Substantial Break" Between Taking and Posttheft Driving
I also believe that on remand, a properly instructed jury could find defendant guilty under the posttheft "driving" aspect of the statute. While Tyler identified defendant as the man who stole his vehicle, defense counsel sought to undermine Tyler's identification and extensively cross-examined him on his observations of the two men in the alley, his description of the man who ran to his SUV and stole it, and whether defendant's appearance was consistent with Tyler's prior observation.
If the jury questioned Tyler's identification and rejected defendant's self-serving postarrest statements about his alleged arrangement with "Ace," a properly instructed jury could still convict defendant on the alternative "driving" theory.
To establish a posttheft driving violation of section 10851, the prosecution must show a "substantial break" between the initial taking and the posttheft driving of the vehicle. (People v. Page, supra, 3 Cal.5th at p. 1188-1189; People v. Lara, supra, 6 Cal.5th at p. 1138.) A substantial break exists where the driving was not part of " 'the continuous journey away from the locus of the theft.' [Citation.]" (People v. Strong (1994) 30 Cal.App.4th 366, 375, fn. omitted.)
"The theft of the vehicle may be considered complete when the driving is not 'part of the original taking' [citation]; when the driving is 'an act distinct from the taking' [citation]; when the driving is 'for purposes unconnected with the original taking' [citation]; 'when the driving is no longer part of a " 'continuous journey away from the locus of the theft' " ' [citation]; or when the driving is not part of the escape from the scene of the theft [citation]." (People v. Calistro (2017) 12 Cal.App.5th 387, 395.)
"One might also suggest that the taking is complete when the taker reaches a place of temporary safety. [Citation.] Whatever the precise demarcation point may be ..., once a person who has stolen a car has passed that point, further driving of the vehicle is a separate violation of section 10851(a) that is properly regarded as a nontheft offense ...." (Garza, supra, 35 Cal.4th at pp. 880-881.)
It is undisputed that defendant was driving the stolen vehicle immediately before he was arrested. I believe the question of whether there was a "substantial break" between the taking and posttheft driving is a question of fact and not a question of law that this court may summarily reject given the posture of this appeal. While the record is silent about the exact time between the theft of Tyler's SUV and when Officer Flores saw defendant driving the stolen vehicle at the apartment complex, it suggests a sufficient period of time elapsed to show a substantial break. Tyler testified it took him five or six minutes to walk from the alley where the vehicle was stolen to his girlfriend's house, and he called 911 at 8:20 p.m. Officer Flores testified he received the dispatch around that time. Flores took Tyler's report and returned to his patrol shift. Tyler testified that at some point after he spoke to Flores, he remembered the vehicle had an OnStar system and contacted the company to report his stolen car. Flores was on patrol when the dispatcher reported that OnStar had tracked Tyler's SUV, "and was giving us exactly where the vehicle was and which direction it was going, the street it was on. Everything we needed to know to start heading towards that area." Flores and other officers responded to an apartment complex, where Flores saw the stolen vehicle being driven and parked, and defendant ran out of the SUV and was apprehended. The People introduced a map to show the distances and different routes between the location where the SUV was stolen, and the apartment complex where the stolen vehicle was recovered.
Officer Flores did not detain defendant during a "hot pursuit" immediately after the vehicle was stolen. The testimony from Tyler and Flores, and the map introduced as an exhibit, would have created a factual question for a properly instructed jury to determine whether a substantial break elapsed between the taking and posttheft driving, and whether defendant had reached a place of safety before he was seen in the vehicle, to convict him based on the "driving" aspect of section 10851.
I would thus find that the court's failure to properly instruct the jury on an element of section 10851 is an instructional error, and remand would be appropriate under Gutierrez because the record suggests evidence that would support either the taking or driving theory is not insufficient as a matter of law even based on the limited record before this court.
In re. D.N.
In relying on Gutierrez to remand the matter, I note this court reached a contrary disposition in In re D.N. (2018) 19 Cal.App.5th 898 (D.N.), where a juvenile court found true a petition that a minor committed "theft of a vehicle" in violation of section 10851. At the contested hearing, there was evidence that the minor and an accomplice took the car; the People did not introduce any evidence about the value of the vehicle or that the minor drove it. (D.N., at p. 900.)
D.N. held the juvenile court's finding that the minor committed a felony violation of section 10851 was improper under Proposition 47 because the prosecutor failed to prove the value of the vehicle exceeded $950. (D.N., supra, 19 Cal.App.5th at pp. 900, 901.) As for the disposition, D.N. reduced the minor's felony adjudication to a misdemeanor violation of section 10851 and rejected the People's request to remand the matter for the juvenile court to hold another evidentiary hearing to address the value of the stolen vehicle. D.N. held such a remand would violate double jeopardy principles since "Penal Code section 490.2 was the law of this state for nearly two years prior to [the minor's] offense, and for more than two years at the time of the jurisdiction hearing" and mandated proof of the stolen vehicle's value in excess of $950. (D.N., supra, 19 Cal.App.5th at p. 900.)
I believe the double jeopardy situation addressed in D.N. does not exist in this case. D.N. involved a juvenile court's finding the minor committed "theft of a vehicle." The minor was not alleged to have violated section 10851 by "taking or driving" the vehicle. The evidence only showed the minor and an accomplice took the car and the minor did not drive it. The matter was not tried to a jury but heard by the juvenile court sitting as the finder of fact. As a result, D.N. did not involve an instructional error that allowed a jury to make a legally incorrect finding under either the taking or driving aspects of the statute, and the People did not rely on evidence of both taking and driving to argue the allegation in the juvenile petition was true. (D.N., supra, 19 Cal.App.5th at p. 900.)
In this case, as in Gutierrez, an instructional error occurred and remand is appropriate because the defendant was charged with "taking or driving," the jury was not correctly instructed, and there was evidence that a properly instructed jury could have returned a verdict based on either taking or driving.
Bullard
While the instruction on count 1 was erroneous because it failed to include the valuation element for the taking aspect of section 10851, the rest of the instruction does not appear to run afoul of People v. Bullard, supra, ___ Cal.5th ___ . The jury was instructed that the People had the burden to prove defendant took or drove the vehicle with the intent "to deprive the owner of possession or ownership of the vehicle for any period of time." Bullard held that Proposition 47 does not distinguish "between permanent and temporary vehicle takings," (Bullard, at p. *10) and held that "[e]xcept where a conviction is based on posttheft driving (i.e., driving separated from the vehicle's taking by a substantial break), a violation of section 10851 must be punished as a misdemeanor theft offense if the vehicle is worth $950 or less." (Id. at p. *29.)
CONCLUSION
Based on the procedural circumstances of this case, I would reverse defendant's felony conviction based on the instructional error, reduce his conviction in count 1 to a misdemeanor, vacate the sentence imposed, and remand the matter for further proceedings where the People may either accept a reduction of the charged offense to a misdemeanor or retry defendant for a felony violation since the reversal resulted from an instructional error and does not implicate principles of double jeopardy.
/s/_________
POOCHIGIAN, Acting P.J.