Filed 8/20/18
                       CERTIFIED FOR PARTIAL PUBLICATION*

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                               FIRST APPELLATE DISTRICT

                                        DIVISION ONE


 THE PEOPLE,
            Plaintiff and Respondent,
                                                   A151676
 v.
 JULIUS LEE JACKSON,                               (San Mateo County
                                                   Super. Ct. No. 16-NF-011306-A)
            Defendant and Appellant.


        Defendant Julius Jackson stole chairs from a home-staging business, and the
police soon found him with the chairs in a stolen vehicle. A jury convicted him of felony
counts of unlawfully taking or driving a vehicle and second degree robbery. The trial
court sentenced him to 12 years in prison, composed of two five-year terms for prior
felony convictions, a two-year term for robbery, and a concurrent two-year term for
unlawfully taking or driving a vehicle.
        On appeal, Jackson raises several claims, including that his conviction for
unlawfully taking or driving a vehicle under Vehicle Code section 10851, subdivision (a)
(section 10851(a)) must be reversed because the vehicle’s value was not proven. In the
published portion of this decision, we agree. Under People v. Page (2017) 3 Cal.5th
1175 (Page), which was not decided until after the trial in this case, a defendant cannot
be convicted of a felony violation of section 10851(a) based on the theft of a vehicle
unless the vehicle is worth more than $950. Since the jury here was not so instructed, it
could have relied on a legally invalid theory to convict Jackson.


        *
         Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of parts II.A., C., and D.


                                              1
       The presumption of prejudice that arises with this type of instructional error was
not overcome. Although there was strong evidence that Jackson unlawfully drove a
vehicle, which could have supported the felony conviction without regard to the vehicle’s
value, we cannot conclude beyond a reasonable doubt that the jury unanimously relied on
this theory. (See People v. Chiu (2014) 59 Cal.4th 155, 167 (Chiu).) Accordingly, we
must reverse the conviction, and on remand the People will have the choice of either
accepting the conviction’s reduction to a misdemeanor or retrying the charge as a felony.
We reject Jackson’s remaining claims and otherwise affirm his convictions.
                                         I.
                               FACTUAL AND PROCEDURAL
                                    BACKGROUND
       On the afternoon of September 12, 2016, an employee of the home-staging
business carried four wicker chairs from the company’s San Mateo warehouse to a
delivery van parked nearby on the street. Realizing that he had forgotten his keys, he left
the chairs on the sidewalk by the van and began walking back to the warehouse. He saw
a man he later identified as Jackson approaching down the street, which prompted him to
return to the van without retrieving his keys.1 The employee then saw Jackson putting
the chairs in a Toyota Land Cruiser.
       The employee approached Jackson and told him that the chairs belonged to the
home-staging business “[a]nd that if he was taking them, he was stealing them.” Jackson
“got upset” and turned toward the employee, giving him an “angry” look. At trial, the
employee demonstrated the movements Jackson then made. As described for the record,
to demonstrate these movements the employee “stood up, clenched his fists, raised them
slightly above waist level or belt level and then brought them down, both down in a quick


       1
          Shortly after Jackson was arrested, the employee identified him during an in-
field showup with “[a] hundred percent” certainty. At trial, the employee was unable to
identify Jackson, but he described the man who stole the chairs as being aged 45 to 55
years old, having an Afro, and wearing a Giants jacket and blue jeans. At the time of his
arrest, Jackson was 55 years old, had an Afro, and was wearing clothes fitting that
description.


                                             2
gesture towards the ground.” The employee said that Jackson also puffed out his chest.
Jackson then said, “Fuck,” but the employee was unsure if the curse was directed at him.
       The employee testified that Jackson’s movements and curse made him feel
“afraid,” and he confirmed that he was “afraid that [Jackson] was going to hurt [him] if
[he] tried to get the chairs back.” The employee explained he wanted to avoid a fight
with Jackson because he had an injured shoulder. Instead of trying to reclaim the chairs,
the employee used his cell phone to take photographs of Jackson, which were admitted at
trial, before returning to the warehouse to seek help.
       The theft of the chairs and a description of the Land Cruiser, including its license-
plate number, were quickly reported to the San Mateo police. The police contacted the
Land Cruiser’s registered owner, who lived in San Mateo. Until hearing from the police,
the owner did not realize that the Land Cruiser was missing. Although the vehicle was
normally parked down the street from the owner’s home, the owner’s adult daughter, who
lived in San Francisco, often used the Land Cruiser when she was visiting. About a week
earlier, she parked it at the San Mateo CalTrain station and left the keys by the front tire,
as she had done before. She usually told her father when she parked the Land Cruiser
there, but she forgot to tell him on this occasion.
       Within hours of talking to the Land Cruiser’s owner, the police located the vehicle
parked in San Mateo. Jackson was sleeping inside a sleeping bag in the front passenger’s
seat. After verifying the vehicle was still reported stolen, the police removed Jackson and
handcuffed him. The wicker chairs were in the trunk, and the Land Cruiser’s keys and
registration were in Jackson’s pocket. The owner and his daughter testified that they did
not give Jackson permission to use the vehicle.
       Jackson was charged with felony counts of unlawfully taking or driving a vehicle,
second degree robbery, and receiving a stolen vehicle.2 The jury convicted him of


       2
         The charges were brought under section 10851(a) (unlawfully taking or driving
vehicle) and Penal Code sections 212.5, subdivision (c) (robbery) and 496d,
subdivision (a) (receiving stolen vehicle). All further statutory references are to the Penal
Code unless otherwise noted.


                                              3
unlawfully taking or driving a vehicle and robbery. It did not return a verdict on the
charge of receiving a stolen vehicle, however, having been instructed not to reach that
charge if it found Jackson guilty of unlawfully taking or driving a vehicle.
       The trial court found true allegations that Jackson had two prior serious-felony
convictions, one in 1989 for robbery and one in 1997 for assault with a deadly weapon.3
After granting his Romero4 motion as to the strike findings under section 1170.12,
subdivision (c)(1), the court sentenced him to 12 years in prison, composed of a term of
two years for the robbery, a concurrent term of two years for the unlawful taking or
driving of a vehicle, and two consecutive five-year terms under section 667,
subdivision (a) for the prior convictions.
                                             II.
                                         DISCUSSION
       A.     Jackson’s Fair-cross-section Claim Is Meritless.
       Jackson first contends that his convictions must be reversed because he was denied
his federal and state constitutional right to a jury drawn from a fair cross-section of the
community. He maintains that this right was violated because no African-Americans
were in the jury panel that was summoned to his courtroom. As he has come nowhere
near satisfying his burden of showing a prima facie violation of the fair-cross-section
requirement, his claim fails.
              1.     Additional facts.
       After jury selection began, Jackson filed a motion to dismiss the jury venire on the
ground that it did not represent a fair cross-section of the community. In support,
Jackson’s trial counsel declared that recent U.S. Census Bureau data attached to the
motion “revealed that 2.9% of the population of San Mateo County is estimated to be
Black or African-American” and “the jury panel of 64 prospective jurors did not include


       3
          Although Jackson thus had two prior convictions for violent or serious felonies,
or strikes, in addition to the strike for the robbery conviction in this case, the prosecution
elected to treat him as a two-strikes offender instead of a three-strikes offender.
        4
          People v. Superior Court (Romero) (1996) 13 Cal.4th 497.


                                              4
a single Black or African-American person.” Jackson claimed this showing shifted the
burden to the prosecution to justify the disparity, arguing that “[o]bviously, if a mix[] of
voter registration and driver license/i.d. records does not bring Black or African-
American citizens into our courtroom, then there is a systematic problem.”
       At a hearing on the motion, the trial court accepted the census data as evidence
and agreed “that it does not appear that persons who were summoned to this particular
department from the jury panel as a whole are African-American.” The court observed
that Jackson had not, however, presented evidence of the composition “of the group
which appeared for the entire summoned jury panel,” and his trial counsel admitted the
defense had no evidence to offer on whether “there was a kink in the process somewhere
in this particular case” of “culling DMV and voter registration records.” Concluding that
Jackson had failed to show a prima facie violation of the fair-cross-section requirement,
the court denied the motion.
       Jackson filed a motion for a new trial that raised several claims, including a
renewal of his challenge to the jury venire’s composition. He argued that a jury with at
least one African-American member would not have convicted him of the robbery count,
claiming the employee perceived him as “threatening” based solely on his race. Relying
on a San Mateo County summons form, Jackson also identified for the first time a
purported systematic flaw in the county’s jury-selection process: that “potential jurors
may obtain exemptions from jury service and continuances of their service without the
involvement of the Court or input from the parties.” The trial court rejected this claim,
concluding that he still had not demonstrated “systematic exclusion” of the group in
question.
              2.     Discussion.
       Criminal defendants have a right to a jury “ ‘selected from a fair cross[-]section of
the community’ ” under both the federal and state Constitutions. (People v. Henriquez
(2017) 4 Cal.5th 1, 18-19 (Henriquez); People v. Ramos (1997) 15 Cal.4th 1133, 1154.)
“ ‘In order to establish a prima facie violation of the fair-cross-section requirement, [a]
defendant must show (1) that the group alleged to be excluded is a “distinctive” group in


                                              5
the community; (2) that the representation of this group in venires from which juries are
selected is not fair and reasonable in relation to the number of such persons in the
community; and (3) that this underrepresentation is due to systematic exclusion of the
group in the jury selection process.’ ” (Henriquez, at p. 19.) If the defendant makes this
showing, “ ‘the burden shifts “to the [People] to come forward with either a more precise
statistical showing that no constitutionally significant disparity existed or . . . a
compelling justification for the procedure which results in the disparity in the jury
pool.” ’ ” (Ramos, at p. 1154.) We review the trial court’s application of the
constitutional standard de novo and its factual findings for substantial evidence. (Ibid.)
       It is undisputed that Jackson satisfied the first prong of a prima facie violation,
because African-Americans are a distinctive group. (Henriquez, supra, 4 Cal.5th at
p. 19.) We agree with the Attorney General, however, that the trial court correctly
concluded the other two prongs were not satisfied.
       As to the second prong, which requires showing an underrepresentation of the
distinctive group in the venire, it is insufficient for a defendant to “show[] a disparity on
the particular jury panel assigned to the court in which his or her jury is to be selected.
Underrepresentation on the defendant’s particular panel is not relevant.” (People v. De
Rosans (1994) 27 Cal.App.4th 611, 618, italics added.) Jackson never presented any
evidence of the composition of the venire as a whole, resting only on the apparent
absence of African-Americans on the panel in his courtroom. This deficiency alone
defeats his claim.
       As to the third prong, which requires showing a systematic exclusion of the group,
“ ‘[a] defendant does not discharge [his or her] burden . . . merely by offering statistical
evidence of a disparity. A defendant must show, in addition, that the disparity is the
result of an improper feature of the jury selection process.’ ” (Henriquez, supra,
4 Cal.5th at p. 20.) Where, as here, the “ ‘county’s jury selection criteria are neutral with
respect to the distinctive group, the defendant must identify some aspect of the manner in
which those criteria are applied that is not only the probable cause of the disparity but
also constitutionally impermissible. . . . Speculation as to the source of the disparity is


                                               6
insufficient to show systematic exclusion.’ ” (Ibid.) Even if the composition of
Jackson’s panel sufficed to establish a disparity, Jackson failed to identify any aspect of
the jury-selection process likely to have caused it. The only “improper feature” of the
process he identified was potential jurors’ ability to avoid or delay their service “without
the involvement of the Court or input from the parties,” but he never explained why this
circumstance would tend to exclude African-Americans, much less demonstrated that it
caused the disparity.
       On appeal, Jackson concedes that “under-representation in his . . . particular panel
is not sufficient to demonstrate a constitutionally impermissible disparity” as required to
meet the second prong of a prima facie violation. And although he reiterates that
potential jurors can opt out of service without the involvement of the trial court or the
parties, he still fails to explain how this feature systematically excludes African-
Americans. Yet despite his admitted failure to establish a prima facie violation, he claims
that the opt-out feature, combined with the fact that no African-Americans were brought
into his courtroom, was “enough to shift the burden to the prosecution to demonstrate the
lack of an actual disparity among the entire venire, and, if it could not do so, to
demonstrate why compelling justification existed for the disparity.” He offers no
authority for his position, and the case law flatly contradicts it. The trial court properly
concluded that he failed to show a prima facie violation of the fair-cross-section
requirement.
       B.      Jackson’s Felony Conviction for Unlawfully Taking or Driving a Vehicle
               Cannot Stand.
       As we have said, Jackson claims that his conviction for unlawfully taking or
driving a vehicle under section 10851(a) must be reversed because no evidence of the
Land Cruiser’s value was introduced, as required to support a felony conviction for theft
of the vehicle under Page. The Attorney General concedes that the jury instruction on
the charge improperly failed to inform the jury that it needed to find the vehicle was
worth more than $950 to support a felony conviction based on theft of the vehicle. He
argues that the error was harmless, however, because “it is clear beyond a reasonable


                                              7
doubt” that the jury convicted Jackson of unlawfully driving the vehicle. We cannot
agree. Despite the strong circumstantial evidence that Jackson drove the Land Cruiser,
we are unable to conclude beyond a reasonable doubt that the verdict was necessarily
based on this theory. (See Chiu, supra, 59 Cal.4th at p. 167.)
              1.     Additional facts.
       Count two of the information charged that, “[o]n or about September 12, 2016, . . .
the crime of Driving Or Taking A Vehicle Without Consent in violation of
[section 10851(a)], a Felony, was committed in that [Jackson] did drive a vehicle, [the
Land Cruiser], without the consent of the owner, . . . and with the intent to deprive the
owner of title and/or possession of the vehicle.” The verdict form ultimately returned on
this count stated that Jackson was guilty “of the crime of Unlawfully Taking or Driving a
Vehicle, in violation of [section 10851(a)], a felony, as alleged in Count 2 of the
Information filed herein.” (Boldface omitted.)
       The jury was instructed under CALCRIM No. 1820 that to prove Jackson guilty of
violating section 10851(a), the prosecution was required to establish 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.” No unanimity instruction was given.
       In closing argument, the prosecutor concentrated on the driving theory of guilt for
the section 10851(a) charge, arguing that even though the employee had not explicitly
testified that Jackson drove the Land Cruiser, the only reasonable inference was that
Jackson drove the vehicle away after stealing the chairs. But the prosecutor also referred
in his closing statement to a separate theory of guilt, which he sometimes referred to as
“taking” and other times referred to as “possessing” the vehicle.
       In explaining that Jackson could not “be found guilty of both” the
section 10851(a) charge and the charge of receiving a stolen vehicle under section 496d,
the prosecutor stated, “So even though it’s basically the same conduct and they are
related, driving the car or having possession of the car versus receiving it, the law says
you can’t be guilty of both taking something and then receiving it. . . . [¶] So there might


                                              8
be a lack of proof as to the taking or the possession of the vehicle. If that’s the case—I’m
not saying there is, but I’m saying if there was, then you would sign the not guilty for [the
section 10851(a) charge] and then move on to [the section 496d charge].”
       And in addressing the elements of the section 10851(a) charge, the prosecutor
stated, “Count 2, again this is CALCRIM [No.] 1820. It’s the unlawful taking or
driving—there is that word again, ‘or’—of a vehicle. And then there is the Vehicle Code
section which relates to what you see on the verdict form. [¶] So defendant took or drove
the . . . vehicle without consent, and when he took it, he intended to deprive [the owner]
of possession or ownership for any period of time. So it’s not like he was just taking it
briefly and you are going to give it back or something. Has to be you are going to
actually take it and not give it back.”
       In urging that circumstantial evidence was sufficient to support a conviction, the
prosecutor also said, “Common sense tells you that of course [Jackson] had possession of
the vehicle and of course he also drove it. Remember, it has to be one or the other. [¶]
Clearly, he possessed it. . . . [¶] . . . [¶] . . . It’s [also] pretty clear that he drove the car
away. That’s one of the . . . ways to prove it. The other way is the possession of the
stolen car.”
       Finally, in addressing the section 496d charge, the prosecutor said, “Remember I
said before you can’t be guilty of two different crimes if you steal something, take it and
receive it. If for some reason you say, hey, [the prosecutor] did not prove Count 2 that
[Jackson] either possessed or drove the stolen vehicle or that he didn’t know it was
stolen, if you think that’s lacking, then you would sign that not guilty verdict form for
Count 2 and then you move on to Count 3.”
               2.      Discussion.
       A violation of section 10851(a) is a “wobbler” offense that may be punished as
either a misdemeanor or a felony. (Page, supra, 3 Cal.5th at p. 1181.) Under that
provision, “[a]ny person who drives or takes a vehicle not his or her own, without the
consent of the owner thereof, and with intent to either permanently or temporarily deprive
the owner thereof of his or her title to or possession of the vehicle . . ., is guilty of a


                                                  9
public offense.” (§ 10851(a).) “[S]ection 10851(a) ‘proscribes a wide range of
conduct’ ” from stealing a car to joyriding. (People v. Garza (2005) 35 Cal.4th 866, 876
(Garza).) Because the provision “separately prohibits the acts of driving a vehicle and
taking a vehicle . . ., 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).”5 (Id.
at p. 880.)
       Under Proposition 47 (the “Safe Neighborhoods and Schools Act”), which went
into effect before Jackson committed the crime here, “ ‘an offender who obtains a
[vehicle] valued at [$950 or less] by theft must be charged with petty theft and may not be
charged as a felon under any other criminal provision.’ ” (Page, supra, 3 Cal.5th at
p. 1183; § 496, subd. (a).) The unlawful taking of a vehicle with the intent to
permanently deprive the owner of possession is a theft offense, but the unlawful driving
of a vehicle is not.6 (Page, at p. 1183; People v. Gutierrez (2018) 20 Cal.App.5th 847,
854 (Gutierrez).) Thus, some violations of section 10851(a) are punishable only as
misdemeanors, and some are punishable as either misdemeanors or felonies. (Page, at
p. 1183.)
       We begin by agreeing with the parties that instructional error occurred. This error
was eminently understandable since Page was not decided until several months after
Jackson’s trial. Still, if a felony conviction under section 10851(a) is “predicated on
vehicle theft,” the prosecution is “required to prove as an element of the crime that the
[vehicle taken] was worth more than $950.” (Gutierrez, supra, 20 Cal.App.5th at
pp. 855-856; accord People v. Bussey (2018) 24 Cal.App.5th 1056, 1061-1062 (Bussey).)
Here, the challenged instruction failed to include this directive and instead “allowed the

       5
        We will use the term “posttheft driving” to refer to driving that “occurs or
continues after the theft is complete”; driving that occurs during the taking is not a
separate violation of section 10851(a). (Garza, supra, 35 Cal.4th at p. 871.)
       6
        The unlawful taking of vehicle with the intent to deprive the owner of possession
only temporarily—i.e., joyriding—is not a theft offense either. (Page, supra, 3 Cal.5th at
p. 1183.) For the sake of simplicity, our subsequent discussion omits references to
joyriding, because there is no evidence Jackson violated section 10851(a) in that way.


                                              10
jury to convict [Jackson] of a felony violation of section 10851[(a)] for stealing the [Land
Cruiser], even though no value was proved—a legally incorrect theory—or for a nontheft
taking or driving offense—a legally correct one.”7 (Gutierrez, at p. 857.)
       We therefore turn to consider whether the error was harmless. “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.” (Chiu, supra, 59 Cal.4th at p. 167.) Unlike with other
types of instructional error, prejudice is presumed with this type of error. “[T]he
presumption is that the error affected the judgment: ‘ “Jurors are not generally equipped
to determine whether a particular theory of conviction submitted to them is contrary to
law . . . . When, therefore, jurors have been left the option of relying upon a legally
inadequate theory, there is no reason to think that their own intelligence and expertise
will save them from that error.” ’ ” (In re Martinez (2017) 3 Cal.5th 1216, 1224.)
       This presumption of prejudice is rebutted only if the record permits the conclusion
“beyond a reasonable doubt that the jury based its verdict on [a] legally valid theory.” 8
(Chiu, supra, 59 Cal.4th at p. 167; see In re Martinez, supra, 3 Cal.5th at p. 1224.)
Sometimes, “ ‘other aspects of the verdict . . . [will] leave no reasonable doubt that the

       7
         Relying on In re D.N. (2018) 19 Cal.App.5th 898, Jackson argues that his
challenge can also be framed as a claim of insufficient evidence which, if successful,
would bar retrial of the charge. (Id. at pp. 903-904.) We agree with the Gutierrez and
Bussey courts that, at least where the evidence would have also permitted conviction on a
theory not requiring proof of the vehicle’s value, the issue is properly analyzed as one of
instructional error. (Bussey, supra, 24 Cal.App.5th at pp. 1062-1063; Gutierrez, supra,
20 Cal.App.5th at pp. 857-858; compare D.N., at pp. 900-901 [minor charged with “theft
of a vehicle” and no evidence of posttheft driving].)
       8
         The Second District Court of Appeal recently held, as to the principle requiring
reversal absent a basis in the record to conclude the jury relied on a legally valid theory,
that the “basis exists only when the jury has ‘actually’ relied upon the valid theory
[citations]; absent such proof, the conviction must be overturned—even if the evidence
supporting the valid theory was overwhelming.” (People v. Aldemat (2018)
20 Cal.App.5th 1149, 1153, review granted July 5, 2018, S248105.) We disagree with
any suggestion that a finding of harmlessness requires affirmative proof of the jury’s
reliance on a legally valid theory.


                                               11
jury made the findings necessary’ under a legally valid theory.” (Martinez, at p. 1226,
quoting People v. Chun (2009) 45 Cal.4th 1172, 1205.) Other times, even if the verdict
alone does not establish that the necessary findings were made, the evidence will leave no
reasonable doubt that the jury made the necessary findings. Thus, an instruction on a
legally invalid theory is also harmless “ ‘if it is impossible, upon the evidence, to have
found what the verdict did find’ ” without also making the findings necessary under a
legally correct theory. (Chun, at p. 1204.) The Supreme Court has left open the
possibility that such error may be deemed harmless for other reasons as well. (Id. at
pp. 1204-1205.)
       The presumption of prejudice in this case has not been overcome. The Attorney
General claims “it is clear beyond a reasonable doubt” that the jury convicted Jackson on
a “valid posttheft driving theory” because “[t]he information showed a clear election by
the prosecution to proceed on the driving theory.” We are not convinced. True, the
information charged Jackson with driving only, and the verdict form stated he was found
guilty of the crime as alleged in the information. But CALCRIM No. 1820 allowed the
jury to convict on either a taking or driving theory, and the prosecutor did not elect the
driving theory in closing argument. (See People v. Melhado (1998) 60 Cal.App.4th 1529,
1539 [“If the prosecution is to communicate an election to the jury, its statement must be
made with as much clarity and directness as would a judge in giving instruction”].)
Rather, the prosecutor mentioned both a taking theory and a “possessing” theory several
times, the latter perhaps referring to the principle that “[m]ere possession of a stolen car
under suspicious circumstances is sufficient to sustain a conviction of unlawful taking.”9
(People v. Clifton (1985) 171 Cal.App.3d 195, 200.) Given that both CALCRIM
No. 1820 and the prosecutor’s arguments gave the jury the option of convicting Jackson


       9
        Possession was also relevant to the section 496d charge. As to that crime, the
jury was instructed, “To receive property means to take possession and control of it.
Mere presence near or access to the property is not enough.” The prosecutor referred to
“possessing” when addressing the section 10851(a) charge, however, so it is less likely he
meant to refer to an element of the crime of receiving stolen property.


                                             12
of unlawfully taking the Land Cruiser, the verdict form’s wording does not allow us to
conclude beyond a reasonable doubt that the jury relied on a driving theory.
       The omission of a unanimity instruction raises additional doubts about the
verdict’s basis. A unanimity instruction is required where “ ‘one criminal act is charged,
but the evidence tends to show the commission of more than one such act’ ” and the
prosecution does not “ ‘ “elect the specific act relied upon to prove the charge.” ’ ”
(People v. Brown (2017) 11 Cal.App.5th 332, 341.) Although Jackson does not argue for
reversal based on the omission of such an instruction, the prosecution’s failure to clearly
elect between taking and driving leaves the possibility that the jurors did not agree on the
same act in returning the conviction. Thus, we cannot find the instructional error
harmless unless we can conclude beyond a reasonable doubt that not a single juror relied
on taking instead of driving to convict Jackson.10 (See People v. Melhado, supra,
60 Cal.App.4th at p. 1539.) We cannot so conclude.
       The Attorney General argues that a taking of the vehicle was “unsupported by any
evidence,” but we disagree. While the evidence of driving may have been stronger than
the evidence of taking, substantial evidence was introduced to support a conviction for
stealing the Land Cruiser, based on Jackson’s possession of it under suspicious
circumstances shortly after it was stolen. (See People v. Clifton, supra, 171 Cal.App.3d
at pp. 199-200; see also People v. Wissenfeld (1951) 36 Cal.2d 758, 763-764 [sufficient


       10
          Further confusing matters, the jury was improperly instructed under CALCRIM
No. 3516 that the section 10851(a) and section 496d charges were “alternative charges”
and that if it found Jackson “guilty of one of these charges, [it could not] find him guilty
of the other.” In fact, dual convictions under these statutes are barred only when a
defendant is convicted of a theft offense under section 10851(a)—i.e., of “taking a car
with the intent to permanently deprive the owner of possession.” (Garza, supra,
35 Cal.4th at p. 876; People v. Calistro (2017) 12 Cal.App.5th 387, 401.) But if a
defendant is convicted under section 10851(a) for a nontheft offense—either joyriding or
posttheft driving—dual convictions are permissible. (Ibid.) Had the jury been correctly
instructed on this point, its failure to return a verdict on the section 496d charge would
demonstrate it relied on a theft theory to convict Jackson. Because of this instructional
error, however, the jury’s treatment of the section 496d charge sheds no light on the basis
for the section 10851(a) conviction.


                                             13
evidence to sustain conviction for theft of car where car found in defendant’s possession
25 days after being stolen].) Nor does the evidence permit us to conclude that no juror
could have found that Jackson stole the vehicle without also finding that he engaged in
posttheft driving. (See People v. Chun, supra, 45 Cal.4th at p. 1205.) The employee did
not testify that he ever saw Jackson drive the Land Cruiser, Jackson was not driving the
vehicle when the police discovered him, and there was no other direct evidence of driving
that compelled the conclusion that if Jackson stole the vehicle, he also drove it after the
theft. In short, we are unable to conclude that the instructional error was harmless.11
       We agree with the Attorney General that the appropriate remedy is to remand for
the People to elect whether to retry Jackson on a felony charge or accept the conviction’s
reduction to a misdemeanor. Therefore, following Bussey and Gutierrez, we will reverse
the conviction, vacate the sentence, and remand for the People to make such an election.
(Bussey, supra, 24 Cal.App.5th at pp. 1062, 1064; Gutierrez, supra, 20 Cal.App.5th at pp.
858, 863.)
       C.     Substantial Evidence Supports the Robbery Conviction.
       Jackson contends that insufficient evidence supports the robbery conviction
because the record fails to establish that he “acted in a manner reasonably calculated to
produce fear in [the employee]” to accomplish the theft of the chairs. We are not
persuaded.
       To evaluate this claim, “ ‘we review the whole record to determine whether . . .
[there is] substantial evidence to support the verdict—i.e., evidence that is reasonable,


       11
          We are aware of other decisions that, relying on overwhelming evidence of
posttheft driving, found harmless instructional errors related to the principle that a jury
cannot convict a defendant of receiving a stolen vehicle if it convicts the defendant of
theft of the same vehicle under section 10851(a). (E.g., Garza, supra, 35 Cal.4th at
pp. 880-882; People v. Cratty (1999) 77 Cal.App.4th 98, 100-103; People v. Strong
(1994) 30 Cal.App.4th 366, 373-376; see also People v. Calistro, supra, 12 Cal.App.5th
at pp. 394-396, 402-404.) Although these decisions also involved the issue whether a
section 10851(a) conviction was based on taking or driving, they are distinguishable for
various reasons, including that the types of errors they addressed do not create a
presumption of prejudice.


                                             14
credible, and of solid value—such that a reasonable trier of fact could find the defendant
guilty beyond a reasonable doubt. [Citation.] In applying this test, we review the
evidence in the light most favorable to the prosecution and presume in support of the
judgment the existence of every fact the jury could reasonably have deduced from the
evidence.’ ” (People v. Manibusan (2013) 58 Cal.4th 40, 87.)
       Robbery is defined as “the felonious taking of personal property in the possession
of another, from his [or her] person or immediate presence, and against his [or her] will,
accomplished by means of force or fear.” (§ 211.) Jackson’s challenge is limited to the
sufficiency of the evidence to support the element of “us[ing] force or fear to take the
property or to prevent the person from resisting.” (People v. Merritt (2017) 2 Cal.5th
819, 824.) Because a robbery is ongoing “until the perpetrator has reached a place of
temporary safety with the property,” it is not necessary that force or fear be used to gain
possession of the property. (People v. Gomez (2008) 43 Cal.4th 249, 255.) Thus, “ ‘a
robbery [also] occurs when [a] defendant uses force or fear in resisting attempts to regain
the property or in attempting to remove the property from the owner’s immediate
presence regardless of the means by which [the] defendant originally acquired the
property.’ ” (Id. at p. 259.) This “includes forcing or frightening a victim into leaving
the scene, as well as simply deterring a victim from preventing the theft or attempting to
immediately reclaim the property.” (People v. Flynn (2000) 77 Cal.App.4th 766, 771.)
       There is no evidence that Jackson used force to effectuate the robbery, so we focus
on the evidence of fear. As relevant here, fear is defined as that “of an unlawful injury to
the person or property of the person robbed.” (§ 212, subd. 1.) The required fear “ ‘is
subjective in nature, requiring proof “that the victim was in fact afraid, and that such fear
allowed the crime to be accomplished.” ’ ” (People v. Bordelon (2008) 162 Cal.App.4th
1311, 1319.) Even if a victim does not testify that he or she was afraid, a jury may infer
that the defendant intimidated the victim, based on “ ‘ “ ‘proof of conduct, words, or
circumstances reasonably calculated to produce fear.’ ” ’ ” (Ibid.)
       Because robbery requires “the specific intent to deprive the victim of the property
permanently,” “ ‘the act of . . . intimidation by which the taking is accomplished . . . must


                                             15
be motivated by the intent to steal.’ ” (People v. Anderson (2011) 51 Cal.4th 989, 994;
see also People v. Hardy (2018) 5 Cal.5th 56, 90 [intent to steal must exist “ ‘ “at the time
the force or fear is applied” ’ ”].) No specific intent “to cause the victim to feel fear” is
required, however. (Anderson, at pp. 991-992.)
       Jackson argues that although the employee “testified that he was afraid, he never
stated he was afraid because of [Jackson’s] actions.” The record belies this contention.
The employee’s testimony clearly indicated that (1) Jackson’s movements and cursing
scared him, (2) he was afraid Jackson would hurt him if he tried to reclaim the chairs, and
(3) he did not try to reclaim the chairs because of this fear:
       [PROSECUTOR]: After you told [Jackson] that the chairs belonged to you
                     and then [Jackson] reacted by cursing and puffing [his]
                     chest out, how did that make you feel?

       [EMPLOYEE]:           I was afraid.

       [PROSECUTOR]: Afraid of what?

       [EMPLOYEE]:           It was over me because I’m injured and I couldn’t do
                             very much. That’s why I went quickly to go get help.

       [PROSECUTOR]: When [Jackson] reacted that way, did you think that he
                     was going to do something if you tried to get the chairs
                     back?

       [EMPLOYEE]:           He could have, yes.

       [PROSECUTOR]: My question is you just said you were afraid?

       [EMPLOYEE]:           Yes. I was afraid.

       [PROSECUTOR]: Were you afraid that [Jackson] was going to hurt you if
                     you tried to get the chairs back?

       [EMPLOYEE]:           Yes.

       ...

       [PROSECUTOR]: If [Jackson] hadn’t prevented you from getting the


                                              16
                            chairs back, what would you have done with the chairs?

       [EMPLOYEE]:          Take them to . . . work.
This testimony was more than sufficient evidence that Jackson’s actions caused the
employee’s fear, which in turn enabled Jackson’s asportation of the chairs.
       Jackson also claims there was insufficient evidence he was motivated by an intent
to steal when he “muttered and gestured” at the employee. He suggests his actions were
not intimidating enough for the jury to conclude that he “acted in a manner reasonably
calculated to produce fear,” contrasting his actions to those of defendants in other cases
who made a “demand” or “implied threat” under “intimidating circumstances.” (E.g.,
People v. Morehead (2011) 191 Cal.App.4th 765, 775 [demands for money from victims
contained “implicit threat of harm”]; People v. Bordelon, supra, 162 Cal.App.4th at
p. 1320 [defendant pushed customer and made “escalating demands for money” during
bank robbery]; People v. Davison (1995) 32 Cal.App.4th 206, 209-210 [defendant
approached victim at ATM and told her to “ ‘ “stand back” ’ ”]; People v. Hays (1983)
147 Cal.App.3d 534, 538-539, 541 [defendant, armed with rifle, entered victim’s office
through ceiling].) Even if these defendants’ actions were more intimidating than
Jackson’s, it does not follow that Jackson’s actions were therefore insufficient to prove an
intent to steal. In response to the employee’s verbal challenge, Jackson turned toward the
employee, looked at him angrily, clenched his fists, and puffed out his chest. The jury
could have reasonably inferred that Jackson did so to discourage the employee from
interrupting his stealing of the chairs. Sufficient evidence supports the robbery
conviction.
       D.     The Trial Court Did Not Violate Jackson’s Right to Self-representation.
       Finally, Jackson claims that the trial court erred by denying his request under
Faretta v. California (1975) 422 U.S. 806 (Faretta) to represent himself, entitling him to
a new hearing on his motion for a new trial.12 We are not persuaded.


       12
         Jackson also argues that he is entitled to a new sentencing hearing, but he will
receive one as a result of our reversal of his section 10851(a) conviction.


                                             17
                1.    Additional facts.
       At the sentencing hearing, the trial court first heard arguments on Jackson’s
motion for a new trial. One of the claims his trial counsel discussed involved a supposed
discrepancy between the photographs taken by the employee, which showed the Land
Cruiser’s hood was open, and the employee’s testimony, in which he did not mention that
the hood was open. As the court began to rule, the following exchange occurred:
       [JACKSON]:            Your Honor, he is fired. He is fired. Get it on the
                             record. He is fired. [¶] . . . [¶] He is refusing to bring
                             up the issue on these pictures.

       [COUNSEL]:            I think we may have a brief Marsden[13] in light of—

       [JACKSON]:            He is fired. Before you make any rulings, he is fired.
                             I can do that.

       [COUNSEL]:            I think it will go very quickly.

       THE COURT:            I will ask—I will take Mr. Jackson’s comments in
                             court as his request for a Marsden hearing.

       [JACKSON]:            Yes, ma’am.
       The trial court then held a Marsden hearing, at which Jackson expressed his belief
that the photographs entitled him to a new trial for a different reason: the Giants jacket in
the photographs was different than the one he was wearing when arrested, raising an
identity issue. After the court interrupted him, he indicated he “want[ed] to go pro per”
and wanted to file a motion to disqualify the judge. Reminding Jackson that it was a
Marsden hearing, the court directed him to air his complaints about counsel. Jackson did
so, and the court then denied the Marsden motion.
       After the parties reconvened, Jackson’s trial counsel said he understood Jackson to
be making “a Faretta pro per request” and a motion to disqualify the judge. The trial
court denied both motions. As to the Faretta request, the court explained that “a



       13
            People v. Marsden (1970) 2 Cal.3d 118.


                                              18
defendant does have a constitutional right to represent himself. However, it is not
absolute. The court is empowered with the discretion . . . to evaluate circumstances
under which it may not be timely. To make such a motion in the middle of sentencing
after expressing dissatisfaction with his attorney[,] indicating dissatisfaction with the
direction in which the sentencing may be going[,] is not in my opinion timely.” The
court then denied the motion for a new trial and sentenced Jackson.
              2.     Discussion.
       Criminal defendants have a federal constitutional right to represent themselves,
including at sentencing. (Faretta, supra, 422 U.S. at p. 807; People v. Doolin (2009)
45 Cal.4th 390, 453.) “The right to self-representation is absolute, but only if a request to
do so is knowingly and voluntarily made” and timely asserted. (Doolin, at p. 453.)
“Otherwise, requests for self-representation are addressed to the trial court’s sound
discretion.” (Ibid.) Jackson concedes that his request for self-representation was
untimely. (See People v. Miller (2007) 153 Cal.App.4th 1015, 1024 [request must be
“made within a reasonable time prior to commencement of the sentencing hearing”].)
We therefore review the trial court’s ruling for an abuse of discretion. (People v. Smith
(2018) 4 Cal.5th 1134, 1182.)
       The timeliness requirement is meant to ensure that a defendant does not “misuse
the Faretta mandate as a means to unjustifiably delay a scheduled [hearing] or to obstruct
the orderly administration of justice.” (People v. Windham (1977) 19 Cal.3d 121, 128,
fn. 5 (Windham).) To this end, relevant factors in evaluating an untimely request for self-
representation include “the quality of counsel’s representation of the defendant, the
defendant’s prior proclivity to substitute counsel, the reasons for the request, the length
and stage of the proceedings, and the disruption or delay which might reasonably be
expected to follow the granting of such a motion.” (Id. at p. 128.)
       Here, several of the Windham factors strongly supported denial of the request for
self-representation. In denying the Marsden motion, the trial court found that Jackson’s
trial counsel had acted “well within the range of professional responsibility for an
attorney.” In addition, Jackson asked to represent himself only after making that


                                             19
unsuccessful motion. Although he claims that his attempt to “fire” counsel was
misconstrued as a Marsden motion instead of a Faretta request, he agreed when the court
said it interpreted his statements as a request for a Marsden hearing. Thus, Jackson’s
primary aim appeared to be removing counsel, whom he was angry with for not raising
another basis for the new-trial motion, not representing himself.
       In addition, over three months passed between the verdict and the hearing at issue,
yet Jackson did not bring up his dissatisfaction with his representation until after the
motion for a new trial had been argued and the trial court was on the verge of ruling on it.
The court could have reasonably construed the Faretta request, coming as it did in
conjunction with the Marsden motion and motion to disqualify the judge, as a last-ditch
attempt to avoid denial of the new-trial motion.
       Jackson argues that the trial court’s “failure to inquire as to [his] readiness to
proceed with the hearing preclud[ed] a finding that his request for self-representation was
made for purposes of delay or to obstruct the orderly administration of justice.” We
disagree. Even if Jackson had said he was ready to proceed, the trial court would not
have been compelled to grant the Faretta request. Although such readiness may have
weighed in favor of granting the request, he provides no authority suggesting this factor
is dispositive. Similarly, he points to no cases suggesting that a court is required to
thoroughly consider all the Windham factors before making a determination. To the
contrary, reviewing courts have upheld denials of untimely Faretta requests so long as
two Windham factors strongly supported the rulings. (E.g., People v. Smith, supra,
4 Cal.5th at p. 1182; People v. Mayfield (1997) 14 Cal.4th 668, 810.) And even if
granting Jackson’s request would not have required a continuance, the court could still
have reasonably concluded that allowing him to represent himself would be disruptive,
based on his outbursts during the hearing. (See People v. Howze (2001) 85 Cal.App.4th
1380, 1397-1398 [untimely Faretta request properly denied based on defendant’s
previous behavior in court].) There was no abuse of discretion.
       Moreover, Jackson fails to demonstrate a reasonable probability that he would
have achieved a more favorable result had he been allowed to represent himself. (People


                                              20
v. Watson (1956) 46 Cal.2d 818, 836; People v. Rogers (1995) 37 Cal.App.4th 1053,
1058 [erroneous denial of untimely Faretta request assessed for prejudice under
Watson].) He claims that, “acting as his own zealous advocate, [he] would have certainly
been successful in getting the [trial] court to take a closer look at the disputed
photographs and render a more considered ruling,” and the additional “consideration may
have then resulted in a favorable ruling, or an even greater reduction in sentence.” But
the basis for a new trial that he wished to raise was unlikely to succeed, as the court
indicated during the Marsden hearing by expressing its belief that the Giants jacket in the
photograph was “similar, if not identical, to the jacket that [Jackson] was wearing when
he was arrested.” Nor does Jackson explain how the court’s closer consideration of the
motion for a new trial would have resulted in a more favorable sentence. Thus, even if
there had been an error, it was harmless.
                                             III.
                                        DISPOSITION
       The conviction for unlawful taking or driving of a vehicle under section 10851(a)
is reversed, the sentence is vacated, and the matter is remanded for further proceedings
consistent with this opinion. On remand, the People may elect to accept a reduction of
the section 10851(a) conviction to a misdemeanor, in which case the trial court is to
resentence Jackson accordingly, or to retry him for a felony violation of section 10851(a).
In all other respects, the convictions are affirmed.




                                              21
                                 _________________________
                                 Humes, P.J.




We concur:




_________________________
Dondero, J.




_________________________
Banke, J.




                            22
Trial Court:

       San Mateo Superior Court



Trial Judge:

       Hon. Lisa A. Novak



Counsel for Defendant and Appellant:

       Jonathan Soglin; Executive Director, First District Appellate Project

       Stephanie Clarke; First District Appellate Project



Counsel for Plaintiff and Respondent:

       Xavier Becerra; Attorney General

       Gerald A. Engler; Chief Assistant Attorney General

       Jeffrey M. Laurence; Senior Assistant Attorney General

       Eric D. Share; Supervising Deputy Attorney General

       Leif M. Dautch; Deputy Attorney General




                                            23
