In re R.K.

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Filed 2/17/17 In re R.K. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 TWO
In re R.K., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
R.K.,
Defendant and Appellant.
E065612
(Super.Ct.No. J264090)
OPINION
APPEAL from the Superior Court of San Bernardino County. Barbara A.
Buchholz, Judge. Affirmed as modified.
Sarah Kleven McGann, under appointment by the Court of Appeal, for Defendant
and Appellant.

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Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Brendon W.
Marshall and Lise S. Jacobson, Deputy Attorneys General, for Plaintiff and Respondent.
The San Bernardino County District Attorney’s Office filed an amended Welfare
and Institutions Code section 602 juvenile wardship petition alleging that defendant and
appellant R.K. (minor) committed the following offenses: unlawful driving or taking of a
vehicle (Veh. Code, § 10851, subd. (a), count 1), receiving stolen property (Pen. Code,
§ 496d, subd. (a), count 2), criminal threats (Pen. Code, § 422, count 3), and battery (Pen.
Code, § 242, counts 4 & 5). At the outset of the jurisdiction hearing, a juvenile court
dismissed counts 3 through 5 pursuant to the People’s request. The court then found the
allegation in count 1 true and dismissed count 2. At the disposition hearing, the court
found that count 1 was a felony, declared minor a ward, and placed him on probation in
the custody of his mother.
On appeal, minor contends that (1) the evidence was insufficient to support a true
finding of a felony violation of Vehicle Code section 10851, subdivision (a), since the
prosecution failed to establish the value of the stolen vehicle, and (2) the probation
condition prohibiting him from associating with people using controlled substances is
overbroad. The People concede, and we agree, that the probation condition should be
modified. Otherwise, we affirm.

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FACTUAL AND PROCEDURAL BACKGROUND
On December 21, 2015, the victim drove her 2007 Nissan 350Z to work at the
Heritage school (the school). She parked right in front of the school, put her car keys in
her lunch bag, and left the lunch bag in the break room. At some point during the day,
the victim noticed that her car was missing and discovered that her car keys were
missing. She reported it to the police.
The victim’s car had a LoJack system, which allowed the police to locate the car
quickly. Officer Spagon found the car at an apartment complex that was approximately
two miles away from the school. Minor and his friend were seen near the parked car, and
the officer detained them. After being read his Miranda1 rights, minor told the officer
that he and his friend went into a classroom at the school and took the keys belonging to
the victim’s car. Minor’s friend did not know how to drive, so minor drove the car, and
they went to his friend’s apartment complex. His friend told the officer they took the car
to go “joyriding.”
At the close of evidence at the jurisdiction hearing, defense counsel argued that
there was insufficient evidence to prove an unlawful taking or driving of a vehicle, as
alleged in count 1. Counsel argued that, under People v. Ortiz (2016) 243 Cal.App.4th
854, review granted March 16, 2016, S232344 (Ortiz), the value of the car had to exceed
$950 for the offense to be a felony, rather than a misdemeanor, and that no value was
1 Miranda v. Arizona (1966) 384 U.S. 436.

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shown at the hearing. Thus, he argued that a misdemeanor conviction would be
appropriate. The People responded that the manner in which the car was taken was
sufficient to make it a felony. The court then took a recess to review Ortiz. After
reviewing Ortiz, the court stated that it was aware of the elements of Vehicle Code
section 10851 and concluded that the current offense was appropriately a felony. The
court noted that the Ortiz court concluded that theft of a vehicle with a value under $950
was a petty theft under Proposition 47; however, the burden of proof was on the
defendant to establish the theft item was valued at less than $950. The court stated that
the charge in the instant case was for a violation of Vehicle Code section 10851, which
required a finding that the defendant took or drove a vehicle without the owner’s consent,
with the intention of depriving the owner of possession or ownership for a period of time.
The court concluded that the People met their burden of proof and found true the
allegation as a felony.
ANALYSIS
I. There Was Sufficient Evidence to Support Count 1
Minor argues that the evidence was insufficient to support a finding of unlawful
driving or taking of a vehicle as a felony because the prosecution failed to establish the
value of the car. He claims that the prosecution made no attempt to establish that the
value of the car exceeded $950 in order to qualify as a felony; therefore, this court should
find that the theft was a misdemeanor. We conclude that the jurisdictional finding was
supported by substantial evidence.

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“‘When a defendant challenges the sufficiency of the evidence, the test on appeal
is whether there is substantial evidence to support the conclusion of the trier of fact.
[Citations.]’” (People v. Green (1995) 34 Cal.App.4th 165, 180.) “‘We must make all
reasonable inferences to support the findings of the juvenile court and we must review the
record in the light most favorable to the juvenile court order. [Citation.]’” (In re Robert
V. (1982) 132 Cal.App.3d 815, 821.)
“The elements necessary to establish a violation of section 10851 of the Vehicle
Code are the defendant’s driving or taking of a vehicle belonging to another person,
without the owner’s consent, and with specific intent to permanently or temporarily
deprive the owner of title or possession.” (People v. Windham (1987) 194 Cal.App.3d
1580, 1590 (Windham); see Veh. Code, § 10851.)
Here, Officer Spagon testified that minor admitted that he and his friend took the
keys to the victim’s car from the classroom, and that he drove the victim’s car to his
friend’s apartment complex. Minor’s friend told the officer that they took the car to go
“joyriding.” The victim testified that when she noticed her car and keys missing, she
reported to the police that her car had been stolen. She also testified that she did not
know minor, and that she did not give him or his friend permission to take her car or
drive it that day. The prosecution established all the elements necessary to show a
violation of Vehicle Code section 10851. (Windham, supra, 194 Cal.App.3d at p. 1590.)
We note that, contrary to minor’s claim, the prosecution was not required to establish the

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value of the car as an element of the crime. Thus, the evidence was sufficient to support
a true finding that minor violated Vehicle Code section 10851.
Minor argues that Proposition 47 applies here to reduce his Vehicle Code section
10851 conviction to misdemeanor petty theft under Penal Code section 490.2. As he
acknowledges, the California Supreme Court is currently reviewing whether a felony
conviction for violating Vehicle Code section 10851, subdivision (a), may be reduced to
misdemeanor petty theft under Proposition 47.2 Until the California Supreme Court rules
on the question, we will adhere to the view that a felony conviction for violating Vehicle
Code section 10851 cannot be reduced to misdemeanor petty theft or qualify for
resentencing as misdemeanor petty theft under Proposition 47.
We first note that minor attempts to distinguish his case from the previously
published cases that address the effect of Proposition 47 on Vehicle Code section 10851.
He asserts that the other appellants filed a petition for resentencing after either pleading
guilty to, or being found guilty of, violating Vehicle Code section 10851, prior to the
passage of Proposition 47. However, his adjudication hearing took place after
Proposition 47 established that theft of any property worth $950 or less should be a
misdemeanor. He then makes the claim that the passage of Proposition 47 “added the
value of the stolen vehicle to the prosecutor’s burden of proof in order to sustain a felony
2 People v. Page (2015) 241 Cal.App.4th 714, review granted January 27, 2016,
S230793; People v. Haywood (2015) 243 Cal.App.4th 515, review granted March 9,
2016, S232250; and Ortiz, supra, 243 Cal.App.4th 854, review granted March 16, 2016,
S232344.

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charge.” (Italics added.) This claim is unsupported. Proposition 47 provides
retrospective relief for defendants who are either serving a sentence or have completed a
sentence for a prior conviction, if the prior conviction would have been a misdemeanor
under Proposition 47 “had [it] been in effect at the time of the offense.” (Pen. Code,
§ 1170.18, subds. (a) & (f).) In this case, Proposition 47 was in effect at the time of the
offense, as minor asserts. In any event, minor is not entitled to relief under Proposition
47. Vehicle Code section 10851 is a “wobbler” offense, punishable either as a felony or a
misdemeanor. (Veh. Code, § 10851, subd. (a); see People v. Superior Court (Alvarez)
(1997) 14 Cal.4th 968, 974, fn. 4 [listing Vehicle Code section 10851, subdivision (a), as
a statute that provides for “alternative felony or misdemeanor punishment”].) The
statutory language setting the punishment for violations of Vehicle Code section 10851
remains the same, before and after Proposition 47, and Vehicle Code section 10851 is not
included among the enumerated sections amended or added by Proposition 47. (Veh.
Code, § 10851, subd. (a); see Pen. Code, § 1170.18, subd. (a).) Thus, minor’s violation
of Vehicle Code section 10851 is ineligible for designation as a misdemeanor under
Proposition 47.
Minor contends that, under the broad language of Penal Code section 490.2, “all
low level thefts, regardless of what code section it is charged under, are to be treated as
misdemeanors in all cases, except those of individuals with serious criminal
backgrounds.” We disagree. Proposition 47 added Penal Code section 490.2, which
provides: “Notwithstanding Section 487 or any other provision of law defining grand

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theft, obtaining any property by theft where the value of the money, labor, real or
personal property taken does not exceed nine hundred fifty dollars ($950) shall be
considered petty theft and shall be punished as a misdemeanor, . . .” (Pen. Code, § 490.2,
subd. (a).) Penal Code section 490.2 is listed in Penal Code section 1170.18 as one of
“those sections [that] have been amended or added” by Proposition 47. (Pen. Code,
§ 1170.18, subd. (a).) Penal Code section 490.2 redefines a limited subset of offenses
that would formerly have been grand theft to be petty theft. However, “[a] person can
violate [Vehicle Code] section 10851[, subdivision] (a) ‘either by taking a vehicle with
the intent to steal it or by driving it with the intent only to temporarily deprive its owner
of possession (i.e., joyriding).’” (People v. Garza (2005) 35 Cal.4th 866, 876 (Garza).)
In other words, Vehicle Code section 10851 proscribes the action of taking or driving a
vehicle “with or without intent to steal.” (Veh. Code, § 10851, subd. (a).) Therefore,
depending on circumstances, a violation of Vehicle Code section 10851 may or may not
be treated as a “theft conviction” for certain purposes. (Garza, at p. 871.) It therefore
does not fall within the scope of Penal Code section 490.2. We further note that there
was evidence in the instant case that minor and his cohort took the car to go “joyriding.”
(See Garza, at p. 876.)
Even if we were to assume that Penal Code section 490.2 applied as minor claims,
his complaint on appeal still fails. He contends that the juvenile court erroneously placed
the burden to establish the value of the stolen vehicle on him. The court was correct.
The burden of proof lies with minor to show the facts demonstrating his eligibility for

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relief under Proposition 47, including that the value of the stolen vehicle did not exceed
$950. (People v. Sherow (2015) 239 Cal.App.4th 875, 877-879.) Minor did not attempt
to meet that burden at the jurisdiction hearing.
In his reply brief, minor again claims that, “[a]fter the passage of Proposition 47,
the State bore the burden of proving that the stolen car was valued at more than $950 in
order to find [him] guilty of a felony.” He relies on Ortiz, supra, 243 Cal.App.4th 854 to
support his claim. However, Ortiz held that the defendant had the burden to establish that
the stolen vehicle was valued at $950 or less, in order to show his eligibility for
resentencing as a misdemeanor under Proposition 47. (Ortiz, at p. 861.) Minor also
claims that he is situated differently than other cases on this issue because he “is not
seeking resentencing, where the burden might be shifted to the defendant.” Contrary to
this claim, he then “requests that this Court find that his theft of the car was a
misdemeanor under Proposition 47” and “asks that the Court remand for resentencing.”
We conclude that the prosecution was not required to establish the value of the car
as an element of a violation of Vehicle Code section 10851, and that the evidence was
sufficient to support the court’s true finding.
II. Probation Condition No. 7 Should Be Modified
Minor challenges probation condition No. 7, which requires him to: “Not
knowingly associate with any personally known user or seller of controlled substances
nor be in a location known by the probationer to be a place where controlled substances

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are used or sold.” The People concede, and we agree that this probation condition should
be modified.
At the outset, we note that the juvenile court “has wide discretion to select
appropriate conditions and may impose ‘“any reasonable condition that is ‘fitting and
proper to the end that justice may be done and the reformation and rehabilitation of the
ward enhanced.’ ” ’ [Citations.]” (In re Sheena K. (2007) 40 Cal.4th 875, 889.) A
“condition that imposes limitations on a person’s constitutional rights must closely tailor
those limitations to the purpose of the condition to avoid being invalidated as
unconstitutionally overbroad.” (Id. at p. 890.)
Minor specifically argues that condition No. 7 is overbroad because it would
prohibit him from associating with persons using medically necessary prescriptions or
entering a pharmacy or any stores containing a pharmacy. He requests this court modify
condition No. 7 to include the concept of the illegality of controlled substances. The
People agree.
Condition No. 7 has the apparent purpose of protecting minor from drug abuse and
the influence of drug dealers and abusers. However, it includes the term “controlled
substances,” which is very broad. Controlled substances are defined and listed in Health
and Safety Code sections 11054-11058. The lists include not only illegal substances, like
heroin and marijuana (Health & Saf. Code, § 11054, subds. (c)(11), (d)(13)), but many
commonly prescribed medications. Thus, condition No. 7, as written, may prohibit minor
from associating with persons using or selling prescription medication. We ascertain no

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rehabilitative purpose in such restriction. “‘California Courts have traditionally been
wary of using the probation system for any nonrehabilitative purpose, no matter how
superficially rational.’ [Citation.]” (People v. Tilehkooh (2003) 113 Cal.App.4th 1433,
1444, superseded by statute on other grounds, as stated in People v. Moret (2009) 180
Cal.App.4th 839, 853.) We conclude that condition No. 7 should be modified to read as
follows: Not knowingly associate with any personally known user or seller of illegal
controlled substances nor be in a location known by the probationer to be a place where
illegal controlled substances are used or sold.
DISPOSITION
Probation condition No. 7 is modified to read: Not knowingly associate with any
personally known user or seller of illegal controlled substances or be in a location known
by the probationer to be a place where illegal controlled substances are used or sold.
In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur:
McKINSTER
J.
CODRINGTON
J.

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