People v. GutierrezPeople v. Gutierrez
We reverse Gutierrez‘s felony conviction for unlawful driving or taking a vehicle (count 2), vacate his sentence in its entirety and remand for retrial on that count or resentencing. On remand the People will have the election of accepting a reduction of the felony conviction on count 2 to a misdemeanor or retrying count 2 as a felony. In all other respects we affirm Gutierrez‘s convictions.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Information
Gutierrez was charged in an information with felony counts for fleeing a pursuing police officer while driving recklessly (
2. Evidence at Trial
In June 2015 Gutierrez was in a relationship with Jorgann Gonzalez.2 Gutierrez routinely drove Gonzalez‘s car, often taking her to work in the morning, keeping the car during the day, and picking her up in the evening. In early June 2015 Gonzalez was in a car accident, and her car was damaged. Her father rented a Nissan Altima for her to drive while her car was being repaired. Gonzalez was listed as an authorized driver on the car rental agreement. Gutierrez was not.
On the morning of June 26, 2015 Gutierrez drove Gonzalez to a doctor‘s appointment in the rental car. After the appointment the couple spent the day at Gutierrez‘s house. Around 6 p.m. Gutierrez told Gonzalez he was leaving and would return later. Approximately 30 minutes later Gonzalez realized
Gutierrez returned approximately an hour later. He parked the rental car down the street from his house and got out, but left the engine running. Gonzalez came outside. As she approached the car, Gutierrez got back in and drove away. Gonzalez called Gutierrez approximately five times to tell him to bring the car back, but he did not answer his phone. Gonzalez tеstified she had not given Gutierrez permission to take the car that evening.
Around 10:45 p.m. Officer Atanacio Jimenez of the Gardena Police Department was patrolling in a marked police car. He noticed a vehicle fail to stop at a stop sign and turn the corner at a high rate of speed. The vehicle, which Jimenez later learned was being driven by Gutierrez, turned into an alley travelling approximately 15 miles per hour over the speed limit. Jimenez pursued the vehicle without turning on his patrol car‘s lights or siren and observed Gutierrez fail to stop at another stop sign, fail to stop at multiple red lights and drive on the wrong side of the road. At that point Jimenez activated his vehicle‘s lights and siren. Gutierrez did not pull over, instead proceeding through another stop sign without stopping. He continued driving over 40 miles per hour. Gutierrez then pulled into a parking lot and jumped out of the rental car while it was still moving. The car collided with a parked car. Gutierrez ran toward the rear entrance of an adjacent bar. Jimenez asked a bystander where Gutierrez had gone and was told Gutierrez ran into the bar. Jimenez broadcast the situation over the radio, and one of the responding officers arrested Gutierrez outside the front entrance
Gardena Police Officer Jaycon Sanchez responded to Officer Jimenez‘s broadcast call on June 26, 2015. When Sanchez arrived at the front entrance of the bar Gutierrez had entered, a woman outside the bar told him a man standing in front of the bar, later identified as Gutierrez, was the person he was pursuing. Sanchez testified Gutierrez appeared drunk. Gutierrez refused a field sobriety test. A breathalyzer test administered at the police station showed Gutierrez‘s blood alcohol level as .14 percent. Upon learning of the night‘s events, Gonzalez told police Gutierrez had stolen the car.
Gutierrez did not testify or present any witnesses in his defense.
3. Jury Instructions and Closing Argument Regarding Unlawful Taking or Driving a Vehicle
The court instructed the jury, pursuant to CALCRIM No. 1820, that to prove Gutierrez guilty of unlawfully taking or driving a vehicle in violation of
In her closing аrgument following the court‘s instructions, the deputy district attorney reviewed the evidence showing that Gutierrez took and drove the rental car without the consent of either the rental car company, its owner, or Gonzalez, an authorized driver. She continued, “We know that [Gutierrez] took the car for an hour and a half the first time, and the second time he took the car for an hour and a half until he was spotted by Officer Jimenez. And as we know, [Gonzalez] testified that she kept calling the defendant, and he wouldn‘t answer. So it becomes clear the defendant intended to deprive [the rental car company] of possession of the car during the duration of the time that he was driving the vehicle.”
4. Jury Deliberations, Verdict and Sentencing
The jury began deliberating on the afternoon of February 22, 2016. Thе next day the jury submitted a question to the court: “Do we consider [the rental car company] as the legal owner of the vehicle and that [Gonzalez] or her father cannot give permission to drive the car?” In response the court
Also on February 23, 2016 the jury asked to rewatch the dashboard camera footage and hear readback of the testimony of Gonzalez and Officer Sanchez. After the testimony was reаd back, the jury resumed deliberations.
On the morning of February 24, 2016 the jury reported it had a verdict. The jury found Gutierrez guilty on all counts charged. The verdict form for count 2 specifically identified the charge as a felony violation of
On March 24, 2016 the trial court sentenced Gutierrez to an aggregate state prison term of four years eight months, plus a
DISCUSSION
1. Gutierrez‘s Felony Conviction for Unlawful Driving or Taking a Vehicle Must Be Reversed Because It May Have Been Based on a Legally Incorrect Theory of Guilt
Gutierrez contends his conviction for unlawful driving or taking a vehicle was for a form of vehicle theft and, pursuant to Proposition 47, his felony conviction must be reduced to a misdemeanor because the People failed to prove the stolen vehicle was worth more than $950. The Attorney General initially argued Proposition 47 does not apply to violations of
a. Vehicle Code section 10851
As the Supreme Court has observed,
Taking a vehicle with the intent to permanently deprive the owner of possession is a form of theft, and a defendant convicted of violating
b. Proposition 47 applies to theft convictions under Vehicle Code section 10851
In November 2014 the voters passed Proposition 47, part of The Safe Neighborhoods and Schools Act, effective November 5, 2014, designed to reduce the punishment for certain drug and theft offenses by reclassifying them from felonies to misdemeanors. (See
Following passage of Proposition 47, courts of appeal disagreed whether
c. The trial court failed to instruct on the elements necessary for a felony theft conviction under section 10851
The parties agree, as held in Page, after Proposition 47 a defendant can be convicted of felony vehicle theft under either
The parties have mistakenly conflated the retrospective and prospective applications of Proposition 47. As discussed,
At the time Gutierrez took the rental car from Gonzalez, he was entitled to the benefit of Proposition 47. In other words, at the time of his arrest in 2015, theft of a vehicle worth $950 or less was “punishable only as a misdemeanor.” (Page, supra, 3 Cal.5th at p. 1187.) Thus, to obtain a felony conviction for vehicle theft, the People were required to prove as an element of the crime that the rental car he took was worth more than $950. (Id. at p. 1183; In re D.N. (2018) 19 Cal.App.5th 898, 901; People v. Van Orden (2017) 9 Cal.App.5th 1277, 1288, review granted June 14, 2017, S241574; see People v. Sherow (2015) 239 Cal.App.4th 875, 879 [noting under reduced penalties of Proposition 47 shoplifting “is
Although the record cannot support a guilty verdict for felony vehicle theft, the problem with Gutierrez‘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
The court‘s instructions here allowed the jury to convict Gutierrez of a felony violation of
Gutierrez insists he was convicted on an invalid theory of vehicle theft, pointing to the evidence that Gonzalez had filed a stolen car report with the California Highway Patrol. However, the deputy district attorney argued, to establish Gutierrez‘s guilt, it was only necessary for the People to prove Gutierrez intended to deprive the owner of the rental car of possession “for the period of time that he was driving that car.” On this record we simply cannot say whether Gutierrez 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. Accordingly, as did the Supreme Court in a similar situation in People v. Chiu, supra, 59 Cal.4th 155, we reverse the felony conviction for unlawful driving or taking a vehicle and remand the matter to allow the People either to accept a reduction of the conviction to a misdemeanor or to retry the offense as a felony with appropriate instructions. (See id. at p. 168 [allowing People to either accept reduction of conviction to second degree murder or retry charge of first degree murder when jury may have based first degree murder conviction on an improper legal theory]; see generally People v. Navarro (2007) 40 Cal.4th 668, 678 [pursuant to
We recognize that in In re D.N., supra, 19 Cal.App.5th 898 the Fifth District employed a different analysis and reached a different conclusion on direct appeal from a juvenile adjudication for a felony theft violation of
The court acknowledged there had been conflicting published opinions from the courts of appeal at the time of D.N.‘s contested jurisdiction hearing. It nonetheless concluded, “The People were . . . on notice as of November 5, 2014, that vehicle theft under
Given the conflicting authority on the issue and the prevailing decisions in the courts of appeal at the time of Gutierrez‘s trial,11 we decline to fault either the trial court or the prosecutor for failing to correctly anticipate the outcome of cases pending before the Supreme Court.12 This is not an instance where either the court or the prosecutor misinterpreted or failed to follow established law. Following the guidance of Chiu, the appropriate remedy for the error here is to allow a retrial on the felony charge if the People can in good faith bring such a case.
2. Admission of Evidence of Gutierrez‘s Prior Felony Conviction Was Not Prejudicial Error
a. Governing law and standard of review
The degree of similarity necessary to support admissibility “depends on the purpose for which the evidence was presented.” (People v. Jones (2011) 51 Cal.4th 346, 371.) The least degree of similarity between the uncharged act and the charged offense is required to support a rational inference of intent; a greater degree of similarity is required for common design or plan; the greatest degree of similarity is required for identity. (Rogers, supra, 57 Cal.4th at p. 326; Edwards, supra, 57 Cal.4th at p. 711.) “In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant ‘“probably harbor[ed] the same intent in each instance.”‘” (People v. Ewoldt, supra, 7 Cal.4th at p. 402.) “‘[T]he recurrence of a similar result . . . tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act . . . .‘” (Ibid.)
In addition, even if evidence of unсharged crimes is relevant for a purpose other than the defendant‘s character or disposition, before admitting the evidence a trial court must also find it has probative value that is not substantially outweighed by its potential for undue prejudice under
We review the trial court‘s determination of admissibility of evidence under
b. Evidence of Gutierrez‘s prior felony conviction
Prior to trial the People filed a motion in limine seeking to introduce evidence of Gutierrez‘s 2012 conviction for unlawfully taking or driving a vehicle under
At trial Jenny Sandoval testified, through an interpreter, that on April 11, 2012 she returned home from the grocery store with her children and parked her car on the street outside her house. She wеnt into the house with the groceries. As her children got out of the car and approached the house, the car was driven away by an unknown person. Sandoval immediately called the police and reported the vehicle stolen. Sandoval testified she had her keys in her possession when the car was taken. It is not clear from the record how Gutierrez started the car.
During its closing argument the prosecutor stated the facts between the prior offense and this case were “very similar” because in each incident Gutierrez fled when he saw the police and then he acted nonchalantly when the police caught up to him. Although the prosecutor mentioned that the two incidents had occurred in the same neighborhood, she cautioned the jury that the proximity did not mean Gutierrez committed both offenses; instead she stated, “It‘s about his modus operandi. It‘s about how similar the acts that he committed are from that case to this case. That the defendant immediately flees and that he just pretends as if nothing happened. It‘s all so similar as to how he operates when he commits crimes.” In her closing argument Gutierrez‘s counsel told the jury that the prior conviction “doesn‘t
c. The admission of evidence of the prior felony, even if error, was harmless
Gutierrez argues his prior conviction was not sufficiently similar to the present offenses to support an inference he had thе intent to steal Gonzalez‘s car.13 We agree several aspects of the incidents are dissimilar. In the 2012 incident Gutierrez took a vehicle from a stranger without use of her keys. In this case Gutierrez not only had a close relationship with the custodian of the car, his pregnant girlfriend, but he also had been given permission to drive the vehicle on multiple occasions, including earlier that day. In addition, he used the keys to take the car, as opposed to some other method of starting the ignition. Finally, in this case he briefly returned the vehicle to his girlfriend, or at least began to, before again driving away. Although Gutierrez‘s behavior in relation to the police was somewhat similar in the two instances, the probative value of the prior offense tо support
Despite our concerns, we need not resolve whether admission of the evidence amounted to an abuse of discretion because, even if error, it is not reasonably probable Gutierrez would have obtained a more favorable verdict absent the alleged error. (See People v. Carter (2005) 36 Cal.4th 1114, 1152 [error in failing to exclude evidence of uncharged misconduct does not require reversal “unless it is reasonably probable the outcome would have been more favorable to defendant had such evidence been excluded“]; People v. Walker (2006) 139 Cal.App.4th 782, 808 [same].)
There was overwhelming evidence, including unrebutted testimony and video footage, that Gutierrez took Gonzalеz‘s vehicle, fled from the police, drove recklessly, had an illegally high blood alcohol level and caused damage to another vehicle. In fact, Gutierrez does not dispute he engaged in each of these acts. Instead, Gutierrez contends he had permission to drive Gonzalez‘s car or at least was under the mistaken belief he had permission. The People‘s evidence on this point consisted of Gonzalez‘s testimony that she told Gutierrez to return the vehicle when he initially took it and called him five times after he took it the second time, but he did not answer. To convict on the
Gutierrez nonetheless argues any potential error was not harmless because the case was a close one. Gutierrez bases this argument on the length of the jury‘s deliberations and its requests for the readback of testimony and to rewatch the video footage. After hearing testimony for almost three days, the jury deliberated for less than four hours on all five charges.14 These facts more reasonably support the inference the jury took care to review the instructions and ensure the prosecution had met its burden. (People v. Walker (1995) 31 Cal.App.4th 432, 438-439 [“we find that the length of the deliberations could as easily be reconciled with the jury‘s conscientious performance of its civic duty, rather than its difficulty in reaching a decision.“].) On this record, it is not reasonably probable that the jury would have reached a more favorable verdict even if the evidence regarding the prior conviction had been excluded.
3. The Trial Court Complied With Its Obligations Under Pitchess
Prior to trial Gutierrez moved under Pitchess v. Superior Court (1974) 11 Cal.3d 531 for a review of Officer Jimenez‘s
DISPOSITION
The conviction on count 2 is reversed; Gutierrez‘s sentence is vacated in its entirety; and the matter is remanded for further proceedings consistent with this opinion. On remand the People may either acсept a reduction of the conviction on count 2 to a misdemeanor with the court to resentence Gutierrez in accordance with that election or retry Gutierrez for a felony violation of
PERLUSS, P. J.
We concur:
ZELON, J. BENSINGER, J.*