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Name: People v. Gutierrez
Case #: B275509
Court: CA Court of Appeal
District 2 DCA
Division: 7
Opinion Date: 02/26/2018

Conviction for vehicle taking (Veh. Code, § 10851, subd. (a)) reversed where jury instructions omitted the requirement that the jury determine the value of the car. Appellant was convicted of illegally taking or driving a vehicle (Veh. Code, § 10851) and other offenses after he used his girlfriend’s rental car without permission. On appeal, he challenged the conviction because there was no evidence the car was worth more than $950. Held: Reversed in part and remanded. Section 10851, subdivision (a) has both a “taking” and a “driving” prong. It prohibits a person from taking or driving a vehicle not his own, without the owner’s consent, with the intent to either permanently or temporarily deprive the owner of her title to or possession of the vehicle. In People v. Page (2017) 3 Cal.5th 1175, the California Supreme Court held that Proposition 47, which reclassified certain theft felonies as misdemeanors, applies to the “theft” form of section 10851. Thus, taking a vehicle worth $950 or less is now petty theft (Pen. Code, § 490.2), and punishable as a misdemeanor. However, the appellate court found the issue on appeal was one of instructional error, not sufficiency of the evidence. The instruction given allowed the jury to convict appellant of a felony violation of section 10851 for stealing the rental car without proof of the car’s value (an improper legal theory), or for a nontheft taking or driving offense (a proper legal theory). Because there is no basis in the record to find the verdict was based on a legal ground, reversal of the conviction is required. (People v. Chiu (2014) 59 Cal.4th 155). [Editor’s Note: The court disagreed with In re D.N. (2018) 19 Cal.App.5th 898, where the Fifth District found a similar circumstance in a delinquency case constituted a sufficiency of the evidence issue and reversed, finding retrial barred by double jeopardy.]

Although the “other crimes” evidence that was admitted by the trial court had only minimal probative value regarding appellant’s intent, no prejudice resulted from this evidence. At trial, appellant objected to the introduction of evidence regarding his prior conviction for unlawfully taking or driving a vehicle (Veh. Code, § 10851) as improper propensity evidence (Evid. Code, § 1101, subd. (a)) and as unduly prejudicial (Evid. Code, § 352). The facts of appellant’s prior offense were dissimilar to the present case in several respects. Thus, the probative value of the evidence to support an inference that appellant harbored the same intent in each case was minimal. However, the court did not determine whether the admission of this evidence was an abuse of discretion because given the overwhelming evidence, it is not reasonably probable that appellant would have obtained a more favorable result absent the alleged error.

The full opinion is available on the court’s website here: