Filed 12/19/19 P. v. Ruiz CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

JAVIER CABRERA RUIZ,

Defendant and Appellant.

G056538

(Super. Ct. No. 17NF3432)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Cynthia M. Herrera, Judge. Reversed and remanded with directions.

Reed Webb, 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, Charles C. Ragland and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

When Plato wrote “things are not always what they seem,” the Greek philosopher might have been referring to this appeal. Appellant Javier Cabrera Ruiz argues that he stole a vehicle, while the Attorney General argues with equal vigor that he had only been joyriding when he was apprehended near a stolen truck. These factual positions are the polar opposites of what one would logically expect the parties’ positions to be when the issue to be decided is the validity of appellant’s conviction for violating Vehicle Code section 10851, subdivision (a) (section 10851(a)).

This quirk arises out of the shotgun marriage between section 10851(a)—which makes it a potential felony to personally steal a vehicle or to drive a vehicle that is known to be stolen (i.e., joyriding)—and Proposition 47, which requires a finding that a vehicle stolen by a defendant is worth at least $950 for the offense to be a felony. But if the same defendant is only joyriding in the same vehicle, the statute does not include a minimum value requirement for the crime committed to constitute a felony.

Because the jury made no finding as to the value of the truck at issue here, Ruiz argues his felony judgment must be reversed and the case remanded for resentencing as a misdemeanor since he asserts his conviction was clearly based on the theory he had stolen the truck.

The Attorney General concedes there was no finding as to the vehicle’s value, and that such a finding is required to sustain the felony conviction if it was based on a theft theory. However, the Attorney General contends the omission is harmless in this case because “the evidence leaves no reasonable doubt that the jury found [Ruiz] guilty under the valid legal theory of post-theft driving, which required no finding of value, rather than the invalid legal theory of theft.”

Based on the entire record, we cannot agree with the Attorney General’s view. While it is clear the jury could have convicted Ruiz on a joyriding theory, it is not clear that it did. To the contrary, the prosecutor repeatedly argued Ruiz had stolen the truck, while also pointing out that the jury need not conclude he stole the truck in order to convict him.

However, we do agree with the Attorney General’s assertion that the prosecutor should have the option of retrying the felony charge on remand because the trial evidence was sufficient to sustain the charge on a theft theory. We consequently reverse the judgment and remand the case to the trial court with instructions to offer the prosecutor the option of either accepting a reduction of the charge to a misdemeanor or retrying the case as felony with proper instructions.

FACTS

The vehicle in question, a white 2013 Chevy Silverado truck, was stolen in October 2017. Approximately six weeks later, in December 2017, Anaheim police officers were patrolling near a motel at which a number of stolen vehicles had been discovered over the prior six months.

The officers saw a white Chevy Silverado in the motel’s parking lot, and suspected it might be stolen because it had a paper license plate with a Hyundai logo and the vehicle identification number (VIN) inside the truck was covered. They began a surveillance of the truck. Less than an hour later, they observed Ruiz exit the motel and open the truck’s rear passenger-side door.

The officers detained Ruiz and found the keys to the truck on the ground next to him. When they looked inside the truck and saw the VIN, the officers confirmed the truck had been stolen.

A search of Ruiz’s motel room revealed registration and insurance documents for the truck, as well as a new Chevrolet license plate frame that was still in its packaging.

Ruiz was charged with one count of unlawfully driving or taking a vehicle “with intent to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle” (§ 10851(a)) (count one), and one count of unlawfully receiving or concealing stolen property (Pen. Code, § 496) (count two).

Ruiz’s girlfriend testified at trial, recalling that she had first seen Ruiz with the truck “about a month” before his arrest, and she had ridden in the truck with him on several occasions. She described Ruiz as happy and excited to have the truck, and stated he had taken good care of it, washing it and keeping it clean inside. Ruiz never told her that he purchased the truck, however, and she did not claim to know how he acquired it.

One of the police officers who participated in Ruiz’s arrest testified the truck had a value in excess of $950, based on the fact he had traded in his own 2011 Chevy Silverado truck for $36,000 in 2016.

The jury was instructed on count one pursuant to CALCRIM No. 1820: “To prove that the defendant is guilty of this crime, 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.” The jury was not asked to make any finding as to the vehicle’s value on count one.

With respect to count two, receiving stolen property, the jury was instructed that if it found Ruiz guilty of that crime, it must also decide whether the value of the property exceeded $950.

The jury was also instructed that if it found Ruiz guilty on count one, it should return the verdict forms for count two unsigned. (Pen. Code, § 496, subd. (a) [“no person may be convicted both pursuant to this section and of the theft of the same property”]; People v. Garza (2005) 35 Cal.4th 866, 871 [“This provision codifies a common law rule prohibiting separate convictions of the same person for stealing and receiving the same property”].)

The jury returned a verdict of guilty on count one; it did not return any verdict on count two. Ruiz admitted he had two or more prior strike convictions.

The court sentenced Ruiz to four years in state prison, consisting of the two-year midterm doubled.

DISCUSSION

1. Background Law

Vehicle Code section 10851(a) provides in pertinent part, “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 . . . .” By its terms, section 10851 is a “wobbler” that may be punished as either a felony or a misdemeanor. (See People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 974, fn. 4].)

As the Supreme Court noted in People v. Garza, supra, 35 Cal.4th at p. 871, section 10851(a) can be violated in several ways: “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. For this reason, 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 . . . . 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 (for convenience, we will refer to this as posttheft driving). Therefore, a conviction under section 10851(a) for posttheft driving is not a theft conviction . . . .”

The plot thickened following the passage of Proposition 47, which requires, among other things, that theft crimes be treated as misdemeanors unless the prosecution has proven that the property taken has a value in excess of $950. (Pen. Code, § 490.2, subd. (a).) In People v. Page (2017) 3 Cal.5th 1175, 1183 (Page), the Supreme Court held that “[b]y its terms, Proposition 47’s new petty theft provision, section 490.2, covers the theft form of the Vehicle Code section 10851 offense.” (Emphasis added.) A theft related felony conviction of section 10851(a) may therefore only be sustained if it includes a factual finding by the jury that the value of the stolen vehicle exceeded $950.

In what we consider an unintended twist, however, a conviction under section 10851(a), based on posttheft driving of the vehicle, in order words joyriding, can still be punished as a felony without regard to the value of the vehicle involved. (People v. Gutierrez (2018) 20 Cal.App.5th 847, 856 (Gutierrez) [“Neither an intent to steal nor the value of the vehicle is an element of a felony offense of posttheft driving or joyriding”].)

Hence the anomaly. Since in this case, the jury made no finding that the vehicle was worth in excess of $950, the defendant now argues his conviction was for the more serious conduct—actual theft—and must therefore be treated as a misdemeanor. The Attorney General, on the other hand, now argues the conviction was based on the less serious conduct—for joyriding—and can thus properly be treated as a felony. Neither current position is entirely consistent with the positions taken by the parties at trial.

2. Harmless Error

In this case, as in Gutierrez, “the problem with [the] 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.” (Gutierrez, supra, 20 Cal.App.5th at p. 856.) Without a finding as to the value of the car, theft was a legally incorrect theory to support a felony conviction, while posttheft driving of the car was a legally correct one. (Id. at p. 857.)

The parties in this case agree that an instructional error was committed, but disagree as to its consequences. The starkness of their disagreement illustrates why we must remand the case for possible retrial, rather than simply ordering the count be resentenced as a misdemeanor.

Ruiz argues that “[t]he record in [his] trial made it clear that his conviction was based upon a theft of the vehicle [because] the prosecutor argued only for a verdict based on theft in his summation . . . .” Based on that assertion, Ruiz contends the conviction must be remanded for resentencing as a misdemeanor in accordance with Penal Code section 490.2, subdivision (a). By contrast, the Attorney General contends, “[t]he prosecutor’s main argument appeared to be that appellant was guilty of count 1 because he drove the stolen truck.” The Attorney General emphasizes the prosecutor argued in his closing argument that “[t]here’s no need to prove it was the defendant who stole it on October 26, 2017.” Based on that contention, the Attorney General claims the vaguely worded jury instruction was harmless error.

Reality is somewhere in between those two positions. At several points in his final argument, the prosecutor urged the jury to conclude that Ruiz “actually stole the car.” The prosecutor also summarized his argument by stating “the evidence is overwhelming in this case. He stole a car to use for his own advantage. That’s the bottom line.”

But the prosecutor also emphasized there was no need to prove Ruiz stole the truck on the date it disappeared to establish his guilt, and he acknowledged there was no direct evidence Ruiz had done so: “Oftentimes at the scene, we don’t catch the criminal. Especially with a stolen car, they get in the vehicle, they turn it on, and they drive away.”

And while the prosecutor cited the testimony of Ruiz’s girlfriend to demonstrate he had possession of the car from “right around the same time” it was stolen, her estimate that Ruiz had possessed the truck for “about a month” at the time of his arrest does not necessarily cover the entire six weeks the truck had been missing. Thus, the jury might have inferred Ruiz did not begin driving the truck until a week or two after it had been stolen. “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.” (Page, supra, 3 Cal.5th at pp. 1188-1189.)

The instruction provided by the trial court informed the jury that Ruiz could be found guilty of count one based on the fact that he had been driving the truck without the owner’s consent, and with the intent to deprive the owner of its possession for even a brief period of time. Those facts were not disputed. Given that there was no direct evidence concerning how or when Ruiz had obtained the truck, we cannot say for certain that the jury relied on anything other than those undisputed facts to find him guilty. But we also cannot say they did not.

“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.” (People v. Chiu (2014) 59 Cal.4th 155, 167.) “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.” (In re Martinez (2017) 3 Cal.5th 1216, 1226.)

The jury could have convicted Ruiz on either a theft theory or a joyriding theory on the record before us. Consequently, we cannot say the instructional error was harmless in this case. Thus, we conclude the felony conviction on count one cannot stand.

We also conclude, however, that on remand the prosecutor should have the option to retry the count as a felony. Double jeopardy does not preclude a retrial in cases where the evidence at the first trial was sufficient to support the conviction. (People v. Hernandez (2003) 30 Cal.4th 1, 6 [“As a general rule, it is well established that if the defendant secures on appeal a reversal of his conviction based on trial errors other than insufficiency of evidence, he is subject to retrial”].) In this case, there was sufficient evidence to sustain a finding that the truck Ruiz was driving was worth well in excess of $950, and thus to support his felony conviction for violating section 10851(a) under either a theft theory or a posttheft driving theory. The jury was simply not asked to make that finding.

Ruiz argues that Penal Code section 1157 mandates a reduction in the charge, rather than a retrial on the count. He is incorrect. That section would apply only if we agreed the conviction was based on a finding of theft, and only if the seriousness of that theft crime was in dispute. But we do not agree. The relevant dispute in this appeal is over whether the crime is a theft, not the nature of the theft. Consequently, section 1157 has no application.

DISPOSITION

The judgment is reversed, and the case is remanded to the trial court with instructions to offer the prosecutor the option of accepting a reduction of the charge to a misdemeanor, or alternatively retrying the case as a felony with proper instructions. If the prosecutor elects not to retry the case, the court is directed to resentence Ruiz on count one as a misdemeanor.

GOETHALS, J.

WE CONCUR:

O’LEARY, P. J.

MOORE, J.