People v. Gonzalez

THE PEOPLE, Plaintiff and Respondent, v. MAURICIO GONZALEZ, Defendant and Appellant.

B291052

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE

October 17, 2019

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. BA465842)

APPEAL from a judgment of the Superior Court of Los Angeles County, Terry A. Bork, Judge. Affirmed.

Christopher Muller, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Noah P. Hill, Corey J. Robins and Nikhil Cooper, Deputy Attorneys General, for Plaintiff and Respondent.

____________________ A jury convicted defendant and appellant Mauricio Gonzalez of unlawful taking or driving a vehicle without consent. On appeal, he contends that the trial court prejudicially erred in its jury instruction for the offense. He also argues that the evidence was insufficient to support the verdict. Finally, Gonzalez claims that the imposition of the restitution fine and assessments without determining his ability to pay violated due process.

Under a taking theory of guilt, a felony violation of Vehicle Code section 10851, subdivision (a), requires proof of a vehicle valued over $950, and the intent to permanently deprive the owner of its possession. Under a posttheft driving theory, an intent to temporarily deprive the owner of possession is required, but a vehicle value is not. Because the jury instruction allowed for a felony conviction under either theory, but did not include the elements required for the taking theory, it erroneously provided for a legally valid theory and a legally invalid theory. However, the error was harmless beyond a reasonable doubt. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts

a. Prosecution Evidence

On February 1, 2018, Manuel Martinez, Jr., parked his 1999 Honda Civic near the place where he worked. He and his father purchased the car in 2017. The car's "pink slip" remained in it when he left. When Martinez returned later in the day, the car was missing. Martinez reported the car stolen.

On February 24, 2018, Los Angeles Police Officer Oscar Gamboa saw Gonzalez driving Martinez's Civic. After stopping Gonzalez, Gamboa found a shaved key in the ignition. Theshaved key was altered to operate the ignition of the car. Gamboa arrested Gonzalez, and had the car impounded.

Martinez and his father were notified about the recovery of the Civic. When it was returned to them, they found damage to the interior and exterior. The pink slip was in the vehicle. However, the pink slip contained new writing which purported to be the signature of Martinez's father. Neither Martinez nor his father signed the pink slip. They did not give Gonzalez or anyone else permission to the drive the Civic.

In January of 2010, California Highway Patrol Sergeant Matthew Petrella pulled over a 1997 Honda Accord driven by Gonzalez. Petrella found a shaved Honda key in the ignition. Petrella recognized that such shaved keys could operate ignitions or open locks which they were not originally intended to fit. Petrella determined that Gonzalez was not the registered owner of the car, and arrested him.

In June of 2012, Los Angeles County Sheriff's Deputy Omar Bobadilla pulled over Gonzalez who was driving a stolen 1991 Honda Accord. The key ring recovered from the ignition contained five shaved keys. Gonzalez also had two shaved pieces of metal which could be used to disengage locks. Bobadilla arrested Gonzalez.

b. Defense Evidence

Gonzalez testified in his defense. In 2010, he pleaded guilty to a felony violation of unlawfully taking or driving a vehicle. In 2012, he pleaded guilty to felony violation of unlawfully taking or driving a vehicle with a prior conviction. He did not go to trial on either case.

On February 13, 2018, Gonzalez first saw the Honda Civic parked on Olympic Boulevard. The Civic caught his attention because it had a "for sale" sign on it. He called the number listed on the sign, and arranged to meet the seller, who identified himself as Manuel. When the seller arrived, he allowed Gonzalez to inspect the Civic. At Gonzalez's request, the seller showed him the pink slip, which contained the VIN and license plate number of the Civic. Gonzalez paid the seller $700 for the Civic. The seller gave a key to Gonzalez, who observed it to be a normal key with normal wear and tear.

Gonzalez confirmed that neither Manuel Martinez, Jr., nor his father, was the man who sold the Civic to him. Gonzalez never submitted any paperwork to the DMV because he had neither time nor money to do so. He did purchase a car cover, a stereo, and a speaker box for the Civic.

Gonzalez was arrested on February 24, 2018. He denied knowing that the Civic was stolen.

2. Procedure

A jury convicted Gonzalez of driving or taking a vehicle without consent, in violation of Vehicle Code section 10851, subdivision (a) (count 1). Gonzalez waived jury trial on the prior conviction allegations, and admitted a prior strike conviction for robbery, and two prior convictions for the same offense charged in count 1. (Pen. Code, § 666.5.)¹

The trial court sentenced Gonzales to three years on count 1, doubled under the Three Strikes law. The total aggregate term of imprisonment was six years in state prison. The trial courtimposed a $300 restitution fine (§ 1202.4, subd. (b)), and a parole revocation restitution fine in the same amount, which was stayed unless and until parole is revoked (§ 1202.45). The trial court ordered Gonzalez to pay a $40 court security fee (court operations assessment) (§ 1465.8), and a $30 facility assessment (criminal conviction assessment) (Gov. Code, § 70373).

Gonzalez timely appealed.

DISCUSSION

1. The Trial Court's Failure to Instruct on Elements Necessary for a Felony Conviction Under Vehicle Code Section 10851, Subdivision (a)

The trial court read CALCRIM No. 1820 to the jury, instructing that for a violation of Vehicle Code section 10851, subdivision (a), "the People must prove that: 1. The defendant took or drove someone else's vehicle without the owner's consent; and 2. When the defendant did so, [he] intended to deprive the owner of possession or ownership of the vehicle for any period of time." Because this instruction included the words "took or drove," it provided for taking or posttheft driving as theories of guilt for a violation of Vehicle Code section 10851, subdivision (a). However, the instruction omitted additional elements that are required under the taking theory. As we will discuss, the trial court improperly instructed the jury on both a legally valid theory of guilt and a legally invalid theory.

a. Proposition 47 and Vehicle Code Section 10851, Subdivision (a)

Vehicle Code section 10851, subdivision (a),² proscribes two forms of conduct: (1) taking and (2) posttheft driving.³ (See VanOrden, supra, 9 Cal.App.5th at pp. 1283, 1285.) Taking is accomplished by unlawfully taking a vehicle or driving the vehicle away, with the intent to permanently deprive the owner of possession. (Garza, supra, 35 Cal.4th at p. 876.) Posttheft driving is driving the vehicle after the theft is complete, or after a substantial break from the theft, with the intent to temporarily deprive its owner of possession. (Van Orden, at pp. 1286-1287.) Taking is a form of theft. (People v. Page (2017) 3 Cal.5th 1175, 1183 (Page); Garza, at p. 871.) Posttheft driving is not. (Page, at p. 1183; Garza, at p. 871; Van Orden, at p. 1283.)

Section 490.2, the ameliorative petty theft provision under Proposition 47,⁴ mandates misdemeanor punishment for adefendant who "obtain[s] any property by theft," when the property is worth no more than $950. (Page, supra, 3 Cal.5th at p. 1183; Van Orden, supra, 9 Cal.App.5th at pp. 1287-1288.) Based on the interpretation of Proposition 47 by the Supreme Court in Page, depending on the theory of guilt, some violations of Vehicle Code section 10851, subdivision (a), are punishable only as misdemeanors. (Page, at p. 1183.) Others are punishable as wobblers, i.e., either misdemeanors or felonies.

Specifically, if the theory of guilt is taking (i.e. theft-related), and the vehicle value is either unproven or $950 or less, the offense is always a misdemeanor. (Page, supra, 3 Cal.5th at p. 1187.) If the value is over $950, the offense is a wobbler. Accordingly, to obtain a felony conviction under a taking theory of guilt, the prosecution must prove as an element that the vehicle taken was worth more than $950. (Id. at p. 1183; Van Orden, supra, 9 Cal.App.5th at p. 1288.)

Proposition 47 does not mandate misdemeanor punishment if the theory of guilt is posttheft driving. Under such a theory, a violation of Vehicle Code section 10851, subdivision (a), would not be a form of theft, covered by section 490.2. The offense under a posttheft driving theory would remain a wobbler, regardless of the vehicle's value.

The instruction in this case allowed the jury to consider whether the offense was predicated on either the taking theory of guilt or the posttheft driving theory of guilt. Consequently, the instruction contained two deficiencies for the elements requiredfor a felony conviction on a taking theory. First, the instruction failed to require proof that the vehicle value exceeded $950. (People v. Gutierrez (2018) 20 Cal.App.5th 847, 856; People v. Jackson (2018) 26 Cal.App.5th 371, 378; Page, supra, 3 Cal.5th at pp. 1187.) Second, the instruction stated that the intent to deprive could be " 'for any period of time.' " For the taking theory, as a theft-based offense, the intent must be " 'to...