In re F.G.

Filed 1/14/19 In re F.G. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
In re F.G., a Person Coming Under the Juvenile
Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
F.G.,
Defendant and Appellant.
F076263
(Super. Ct. No. 514410)
OPINION
THE COURT*
APPEAL from an order of the Superior Court of Stanislaus County. Rubén A.
Villalobos, Judge.
Renée Paradis, under appointment 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, Ivan P. Marrs, Lewis A.
Martinez and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and
Respondent.
-ooOoo-
* Before Hill, P.J., Poochigian, J. and Smith, J.

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Appellant F.G., a minor, appeals from the juvenile court’s dispositional order
declaring him a ward of the court. Following a contested hearing on a petition filed
under Welfare and Institutions Code section 602, appellant was found to have committed
the crimes of theft and unlawful driving or taking of a vehicle (Veh. Code, § 10851,
subd. (a))1 and knowingly obtaining, concealing, selling or withholding from the owner, a
vehicle known to be stolen (Pen. Code, § 496d(a)). Appellant alleges several alternative
forms of error, which initially turn on whether appellant was found to have stolen a
vehicle or unlawfully driven a vehicle under section 10851. Depending on the outcome
of that position, appellant contends either that the finding he obtained a stolen vehicle
must be dismissed and his theft offense reduced to a misdemeanor or that both of his
offenses must be reduced to misdemeanors under Proposition 47. For the reasons set
forth below, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On May 18, 2017, at around 8:25 p.m., Modesto Police Officer Michael Rokaitis
saw a white Honda Accord driving along a driveway next to the King-Kennedy Center at
Mellis Park. This was odd to Officer Rokaitis because there were no events going on that
evening and the driveway in question was more of a service route than a normal road.
Officer Rokaitis drove toward the vehicle to investigate and noticed the driver was a
Hispanic male with dark wavy hair, identified later as appellant. Officer Rokaitis noticed
several others in the car, including a Hispanic woman with a ponytail.
Officer Rokaitis ran the vehicle’s license plate number and learned the vehicle had
been reported stolen. That report had been made around 8:00 a.m. that morning by the
owner of the vehicle. Officer Rokaitis pursued the car for a period, during which he lost
sight of the vehicle, before coming across the vehicle abandoned near the park. When he
located the vehicle, Officer Rokaitis also saw a group of juveniles, including appellant,
1 All further statutory references are to the Vehicle Code unless otherwise indicated.

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running into the park. Officer Rokaitis pursued appellant while in his patrol vehicle. He
ultimately apprehended him after turning on his lights and siren, leading appellant to
cease running. According to the officer, appellant claimed he was merely walking home
and only ran because he saw the police. Upon further inspection, the vehicle was found
to be running but without a key in the ignition.
Based on this incident, the People filed a wardship petition alleging appellant had
committed two offenses. The first alleged “a Felony, AUTO THEFT, [a] violation of
Section 10851(a) of the California Vehicle Code, in that the minor did willfully,
unlawfully, and feloniously drive and take a certain vehicle, to wit, an automobile, to wit,
a WHITE 1995 HONDA ACCORD, then and there the personal property of another
without the consent of and with intent to deprive the said owner of title to and possession
of said vehicle.” The second alleged “a Felony, RECEIVING STOLEN VEHICLE, [a]
violation of Section 496d(a) of the California Penal Code.”
At appellant’s arraignment, the parties discussed with the court the total potential
confinement appellant faced, considering he was already on probation for a prior offense.
At that time, the People stated appellant’s total confinement time “would also be 38
months. Count II is charged in the alternative.”
At the conclusion of appellant’s later jurisdictional hearing, the People presented
their closing arguments. At that time, they focused heavily on the fact the car was stolen
and that appellant was the driver. Appellant’s counsel argued generally that the evidence
did not show appellant was in the vehicle and, specifically, that “the People have [not]
proven beyond a reasonable doubt that it was [appellant] driving or in the car.” The court
rejected this position and found “beyond a reasonable doubt that [appellant] has
committed both the offense in Count I and the offense in Count II, specifically auto theft,
in violation of 10851(a) of the California Vehicle Code, and Count II, receiving a stolen
vehicle, in violation of 496D(a) of the California Penal Code.” It put off, until
disposition, whether these offenses would be misdemeanors or felonies.

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At the subsequent dispositional hearing the court initially considered a dispute
about the maximum confinement time, which had been calculated as either 44 or 52
months. The court stated: “On the petition we have eight months for Count I. Zero for
Count II. And 36 for previous petitions for a total of 44 months. [¶] It was one car. I
think it’s 654. I think that’s probably why.” In response, the People affirmed, “Right.
They were charged in the alternative. So, yeah.” In further discussions, the People
argued for more time in juvenile hall than recommended, arguing “I don’t think this
minor really has an appreciation for the fact that stealing cars is not a game.” While the
court ultimately rejected this request, it did determine that both convictions would
proceed as felonies in part because the court saw an escalation in appellant’s behavior.
On this point, the court stated, “We see how these things sometimes work. And, you
know, it used to be that auto theft was called joyriding. And joyriding sounds like
something silly, something that just kids do without thinking about it. [¶] We’ve seen
how this type of behavior escalates into much more serious behavior. . . . And frankly
that’s concerning to the Court.”
The court ultimately declared appellant a ward of the court and ordered him to
serve 83 days in juvenile hall, with credit for 83 days served. This appeal timely
followed.
DISCUSSION
This appeal consists of a nested set of contentions turning on an initial
determination as to whether appellant’s offense under section 10851 must be considered a
theft offense. If so, appellant raises issues related to prohibitions on dual convictions and
requests reduction of his crime pursuant to Proposition 47. If not, appellant partially
concedes he can be properly found to have committed both offenses but argues his
receiving property conviction must be reduced to a misdemeanor under Proposition 47.
He further contends that equal protection concerns require both offenses to be treated as

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misdemeanors under Proposition 47. We therefore begin by considering the nature of
appellant’s offense under section 10851.
The Court’s Ruling Can Properly Stand Under a Driving Offense Theory
Section 10851 has long been recognized as a difficult statute to administer,
containing two distinct offenses covering both vehicle theft and the concept of joyriding.
Due to the need to classify the nature of one’s conviction under section 10851 under
other statutory provisions, a large body of case law has developed regarding how to
understand such convictions. Briefly, these convictions can be viewed as either theft
offenses or driving offenses. Relying mostly on statements by the People and the
juvenile court, appellant argues his conviction must be viewed as a theft offense because
the People charged him with theft of a vehicle and receiving a stolen vehicle in the
alternative, a step only required in the context of theft offenses. Although the People did
state the offenses were charged in the alternative, the case law shows that what matters is
whether the evidence compels a finding the fact finder convicted on a theft offense
theory. Here, the evidence presented to the juvenile court—the fact finder in this
instance—was nearly wholly dedicated to a driving offense theory and the trial court’s
statements during disposition reveal it understood the offense to be like joyriding.
Accordingly, we do not agree with appellant’s claim he was convicted of a theft offense.
Standard of Review and Applicable Law
Under our Supreme Court’s precedence, when “the evidence is such that it is not
reasonably probable that a properly instructed jury would have found that the defendant
took the vehicle but did not engage in any posttheft driving, a reviewing court may
construe the Vehicle Code section 10851(a) conviction as a conviction for posttheft
driving and on this basis may uphold the conviction … for receiving the same vehicle as
stolen property.” (People v. Garza (2005) 35 Cal.4th 866, 872 (Garza).)
The history behind the current rule is well summarized in Garza. (Garza, supra,
35 Cal.4th at pp. 876–878.) However, for our purposes, it can be further summarized

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with respect to determining the nature of the Vehicle Code conviction as follows. In
People v. Jaramillo (1976) 16 Cal.3d 752, 754–755, the court faced a situation where the
defendant was found in a stolen car and circumstantial evidence suggested he both stole
the vehicle and drove it. The court conceded there was no way to determine the basis by
which the defendant was convicted under section 10851, particularly because the jury had
been instructed to convict under section 10851 when it believed appellant had also
committed grand theft auto but possessed a reasonable doubt as to which offense actually
occurred. (Jaramillo, supra, at pp. 757–758.) In this context, the court concluded a
receiving stolen property conviction could only stand when the “conviction of the
Vehicle Code section is predicated on conduct not constituting a theft of the vehicle
involved.” (Id. at p. 754.) The court found the receiving stolen property conviction in
Jaramillo improper under this logic because the record did “not disclose or suggest what
specific findings were made in convicting [the] defendant of a violation of Vehicle Code
section 10851 but it nevertheless appear[ed] that the fact finder may have found that the
defendant intended to steal the vehicle.” (Id. at p. 759, italics omitted.)
The Courts of Appeal eventually began distinguishing Jaramillo. Thus, in People
v. Austell (1990) 223 Cal.App.3d 1249, 1252, the court found dual convictions were
permissible where the evidence could not support a theft offense and the prosecutor had
expressly disavowed that theory during trial and argued the defendant was guilty of a
driving offense. Taking the line further, in People v. Strong (1994) 30 Cal.App.4th 366,
376, the evidence could support either a driving or theft offense conviction, although the
theft evidence was less conclusive. There, although the court found error when the jury
was not instructed on the Jaramillo principles, it concluded the error was harmless where
the evidence showed a substantial break between the theft and any driving such that no
reasonable jury could have found appellant was not guilty of a driving offense in part
because one is not convicted of theft if “the evidence show[s] two distinct violations of
section 10851.” (Strong, supra, 30 Cal.App.4th at pp. 373–374, 376.)

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Following these cases, the Supreme Court again considered the dual conviction
prohibition in Garza. Although it did not disavow its prior analysis in Jaramillo, the
Garza court affirmed the analyses in Austell, Strong, and similar cases, explaining “a
defendant who steals a vehicle and then continues to drive it after the theft is complete
commits separate and distinct violations of section 10851(a).” (Garza, supra, 35 Cal.4th
at pp. 880–881.) The court distinguished the result in Jaramillo by noting that case had
been considered under a different harmless error standard that was utilized before certain
legislative amendments codifying the narrow view of the common law prohibition
against dual convictions were passed. (Garza, supra, 35 Cal.4th at p. 882.) It viewed the
proper error analysis for vacating a receiving stolen property conviction to require a
showing “that it is not reasonably probable that a properly instructed jury would have
found defendant guilty of violating section 10851(a) by stealing the car but not by
posttheft driving.” (Ibid.)
In line with this view, this court recently noted, in a case where it appeared the
instructions treated allegations under section 10851 exclusively as a taking offense, that
alleged errors are viewed by “how the erroneous instruction affected the jury” and not by
what the “trial court believed.” (People v. Calistro (2017) 12 Cal.App.5th 387, 402
(Calistro).) In Calistro, we explained that the prosecutor could elect to pursue a driving
theory by arguing that theory in closing and that overwhelming evidence of posttheft
driving meant “no reasonable juror could have found that [the defendant] took the car but
did not drive it after the theft was complete.” (Id. at pp. 402–403.)
The Evidence Does Not Support Only Finding a Theft Offense Occurred
This case straddles the line between the various analyses in the cases noted above.
On the one hand, the evidence presented strongly supports a conviction for posttheft
driving while only inferentially supporting an actual theft conviction. In this vein, the
prosecutor’s contentions during closing arguments suggest a posttheft driving theory
supporting the conviction under section 10851, even if there is some ambiguity. The

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prosecutor heavily focused on the evidence showing appellant was driving the vehicle
and only noted the evidence supporting the conclusion the vehicle was stolen to
demonstrate the driver of such a vehicle would know it was stolen. At the end, however,
the prosecutor did imply this was a theft case, reminding the court that there was only one
set of keys for the car and that those were in the owner’s possession at all times. This
inference ties in with the conflicting evidence both that the prosecutor intended to, and
did, pursue a theft theory and that the trial court convicted on this theory. Supporting this
conclusion, the petition in this case alleged appellant “did commit a Felony, AUTO
THEFT, [a] violation of Section 10851(a) of the California Vehicle Code.”2 Likewise,
the prosecutor twice stated to the court that the charges under section 10851 were
alternative charges to the Penal Code section 496d receiving a stolen vehicle charge, a
position only necessary if the Vehicle Code charge is based on a theft theory. Finally, the
juvenile court found, consistent with the phrasing of the petition, that appellant had
committed “the offense in Count I . . ., specifically auto theft, in violation of 10851(a) of
the California Vehicle Code.”
Under these facts, we conclude appellant’s dual convictions are proper. On
appeal, we presume the judgment of the juvenile court is correct and that the court
correctly understood and applied the law. (Garza, supra, 35 Cal.4th at p. 881; People v.
Nance (1991) 1 Cal.App.4th 1453, 1456; accord Ross v. Superior Court (1977) 19 Cal.3d
899, 913–914.) Appellant’s arguments turn on whether we accept that the evidence
compels the conclusion the parties and the court proceeded only on a theft-based theory
for conviction under section 10851.3 The petition, however, left open the possibility of a
2 Relevant to the contrary position, though, the petition vaguely asserts appellant did
“feloniously drive and take” the vehicle with the “intent to deprive the said owner” of the
vehicle. It does not distinguish, as the statute does, between a permanent or temporary intent to
deprive.
3 Notably, appellant does not argue a due process violation from any lack of disclosure that
he could be convicted under a driving theory based on the wording of the petition. Nor does

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driving theory even if generally suggesting a theft theory, the evidence presented was
almost exclusively based on a driving theory, and the prosecutor argued a driving theory.
Although the court identified the offense as auto theft in pronouncing its findings, it
appeared to be parroting the general language of the petition and provided no clarification
as to the theory it relied upon. Presuming the court was aware of and properly applying
the prohibition of finding one guilty of a theft-based offense under the Vehicle Code and
of receiving that same stolen property under the Penal Code, (Jaramillo, supra, 16 Cal.3d
at p. 759), we do not find the court’s statement demonstrates appellant was convicted
based on a theft theory. We also note with respect to the court’s view of the offense that
the court appeared to equate appellant’s conduct with joyriding, a driving offense, at the
dispositional hearing, stating in its escalation discussion that “you know, it used to be that
auto theft was called joyriding.” Ultimately, in line with the relevant test for
harmlessness, the evidence does not support finding appellant stole the car but did not
commit a posttheft driving offense. If this were the case, the court would presumably not
have reached its conclusion appellant committed both offenses.
We likewise reject appellant’s contention that the evidence was not sufficient to
demonstrate a break between any theft-related driving and the posttheft driving necessary
for the juvenile court’s determination. The evidence presented showed a nearly 12-hour
break between the time the car was reported stolen and the time appellant was seen
driving the vehicle. Further, the evidence showed the vehicle was first seen as it was
being driven around a park with multiple occupants. This is sufficient to support the
conclusion that the driving seen by the officer was not part of the original taking, no
appellant argue the prosecutor and trial court were bound by the petition to only consider a
taking theory. Rather, appellant argues the prosecutor and court proceeded as if asserting a
taking theory and, as noted below, challenges the court’s findings on the driving theory by
arguing no evidence supports the required finding there was a substantial break between the theft
and driving. Accordingly, we proceed accepting that, procedurally, appellant could be convicted
under a driving theory in this case.

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longer part of a continuous journey away from the theft or escape, or occurred after
appellant had initially reached a place of temporary safety following the theft. (See
Calistro, supra, 12 Cal.App.5th at p. 395 [discussing examples of demarcation point for
posttheft driving].)
Having reached the above conclusions, we thus reject appellant’s claim that he
was improperly convicted of both theft of a vehicle and receiving that stolen vehicle. The
law is well settled that the prohibition on multiple convictions does not arise when the
conviction under section 10851 is for a driving offense and not a theft offense. (Calistro,
supra, 12 Cal.App.5th at pp. 404–405.) We likewise reject appellant’s claim that his
section 10851 offense should be reduced to a misdemeanor under Proposition 47 for lack
of evidence the vehicle was worth less than $950. This requirement does not apply to
driving offenses. (See People v. Gutierrez (2018) 20 Cal.App.5th 847, 856.)
Appellant’s Remaining Positions
Based on our conclusion that appellant is properly seen as committing a driving
offense under section 10851, we turn to appellant’s remaining arguments based on that
determination. Appellant argues his conviction under Penal Code section 496d is subject
to Proposition 47 such that his offense must be classified as a misdemeanor unless there
is evidence the vehicle at issue is worth more than $950. We do not agree. This issue
has been considered and rejected by two of our sister courts, both finding that Proposition
47 does not affect Penal Code section 496d. (See People v. Bussey (2018) 24
Cal.App.5th 1056, 1062–1063 (Bussey); People v. Varner (2016) 3 Cal.App.5th 360,
365–367 (Varner).) We find these cases to be more persuasive than People v. Williams
(2018) 23 Cal.App.5th 641, 651, and, absent further guidance from the Supreme Court,
see no reason to depart from their analysis.
Appellant also argues that equal protection concerns require that both his
section 10851 and his Penal Code section 496d offenses be reduced to misdemeanors
under Proposition 47. More specifically, appellant contends that it is improper to treat

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those who steal vehicles and those who receive general stolen property less harshly than
those that drive vehicles or receive a stolen vehicle. We do not agree. As with
appellant’s first argument, these positions have been raised and rejected previously. With
respect to section 10851, this court has previously found no equal protection violation.
(See People v. Sauceda (2016) 3 Cal.App.5th 635, 651–654, disapproved on other
grounds by People v. Page (2017) 3 Cal.5th 1175, 1187, fn. 4.) And our sister courts
deciding the Proposition 47 issues with respect to Penal Code section 496d also rejected
equal protection claims. (Bussey, supra, 24 Cal.App.5th at pp. 1063–1064; Varner,
supra, 3 Cal.App.5th 360, 367–370.) Absent further guidance from the Supreme Court,
we see no reason to depart from these analyses.
DISPOSITION
The order of the juvenile court is affirmed.

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