Filed 2/26/18
                CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                SECOND APPELLATE DISTRICT

                       DIVISION SEVEN


THE PEOPLE,                          B275509

       Plaintiff and Respondent,     (Los Angeles County
                                     Super. Ct. No. YA092645)
       v.

MITCHELL ALEJANDRO
GUTIERREZ,

       Defendant and Appellant.


       APPEAL from a judgment of the Superior Court of
Los Angeles County, Steven R. Van Sicklen, Judge. Affirmed in
part, reversed in part and remanded with directions.
       Elana Goldstein, under appointment by the Court of
Appeal, for Defendant and Appellant.
       Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Senior Assistant
Attorney General, Steven D. Matthews, Mary Sanchez, Ryan M.
Smith, and Noah P. Hill, Deputy Attorneys General, for Plaintiff
and Respondent.
                ________________________________
        Mitchell Alejandro Gutierrez appeals from the judgment
entered after a jury convicted him of fleeing a police officer while
driving recklessly, unlawful driving or taking a vehicle, driving
under the influence of alcohol and hit-and-run driving. Gutierrez
contends he was improperly convicted of felony vehicle theft and
the offense should be reduced to a misdemeanor. He also
contends the trial court committed prejudicial error by admitting
evidence of his prior conviction for unlawful driving or taking a
vehicle. Finally, Gutierrez asks us to review the sealed
transcripts of the hearing regarding disclosure of the personnel
file of the police officer involved in his pursuit and arrest to
determine whether the court abused its discretion when it
concluded there were no discoverable materials.
        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 (Veh.
Code, § 2800.2) 1 (count 1) and driving or taking a vehicle without
the owner’s consent after a prior conviction for the same or
similar offense (§ 10851; Pen. Code, § 666.5) (count 2) and

1     Statutory references are to this code unless otherwise
stated.




                                 2
misdemeanor counts for driving under the influence (DUI) of
alcohol within 10 years of two other DUI offenses (§§ 23152,
subd. (a), 23546) (count 3), driving with a blood alcohol content
greater than or equal to .08% within 10 years of another DUI
offense (§§ 23152, subd. (b), 23540) (count 4) and hit-and-run
driving resulting in property damage (§ 20002, subd. (a))
(count 5). It was specially alleged as to count 2 that Gutierrez
had previously been convicted of a felony violation of section
10851 and as to counts 3 and 4 that he had previously been
convicted of one violation of section 23103, subdivision (a)
(reckless driving), and one violation of section 23152, subdivision
(b). Gutierrez pleaded not guilty and denied the special
allegations.
      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


2    Gonzalez gave birth to Gutierrez’s child the day after
Gutierrez’s arrest.




                                 3
the rental car keys were not in her purse where she had left them
and the car was gone. Gonzalez called Gutierrez and told him to
bring the car back. He said he would.
       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
testified 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




                                 4
of the bar. Jimenez’s patrol car was equipped with a dashboard
camera, which was activated when Jimenez turned on the car’s
lights and siren. The video footage of the incident was played for
the jury.
       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 section 10851, “the People must
prove 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.” 3 As part of



3     The court continued with bracketed language from
CALCRIM No. 1820, “Even if you conclude that the owner had
allowed the defendant or someone else to take or drive the vehicle
before, you may not conclude that the owner consented to the




                                5
CALCRIM No. 252, Union of Act and Intent, the court also
instructed, to find a person guilty of the crime of driving or taking
a vehicle without consent, “that person must not only
intentionally commit the prohibited act or intentionally fail to do
the required act, but must do so with a specific
intent. . . . [¶] . . . [¶] The specific intent required for the crime of
Driving or Taking a Vehicle Without Consent is the intent to
deprive the owner of possession or ownership of the vehicle for
any period of time.”
      In her closing argument 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. The 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


driving or taking on June 26, 2015, based on that previous
consent alone.” (See § 10851, subd. (c).)




                                   6
allowed counsel to argue their positions to the jury for five
minutes each. The prosecutor again argued the rental car
company was the legal owner of the vehicle and reiterated the
testimony of the rental car company representative, who had
stated only Gonzalez and her father had consent and
authorization to drive the car. The prosecutor emphasized
Gonzalez’s testimony she had not given Gutierrez permission to
drive the car on the evening of June 26, 2015. In rebuttal
Gutierrez’s counsel agreed the rental car company was the legal
owner of the vehicle, but argued Gonzalez was still capable of
giving Gutierrez permission to drive it. The rental contract,
Gutierrez’s counsel argued, did not prohibit Gonzalez or her
father from giving another individual permission to drive the car;
instead, it only affected Gonzalez and her father’s liability should
they do so. Gutierrez’s counsel further argued Gonzalez had
given Gutierrez permission to drive the car that evening and only
claimed it was stolen to protect herself from liability for the
damage.
      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 read
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 section 10851. At that point
Gutierrez waived a jury trial as to his prior convictions and
admitted all three convictions alleged in the information.
      On March 24, 2016 the trial court sentenced Gutierrez to
an aggregate state prison term of four years eight months, plus a




                                 7
consecutive term of 544 days to be served in any penal
institution. 4 The court also imposed statutory fees, fines and
assessments.
                          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
section 10851. However, after briefing in this case was
completed, the Supreme Court in People v. Page (2017) 3 Cal.5th
1175 (Page) held Proposition 47 applies to violations of
section 10851 in some instances. 5 The Attorney General now
argues Gutierrez has forfeited his argument and, in any event,
has failed to carry his burden to show the value of the vehicle.
Both Gutierrez and the Attorney General misperceive the nature
of error committed and the appropriate remedy.
         a. Vehicle Code section 10851

4     The court imposed the high term of four years on count 2,
plus consecutive terms of eight months (one-third the middle
term of two years) on count 1; 364 days on count 4; and 180 days
on count 5. Pursuant to Penal Code section 654 the court stayed
the sentence on count 3.
5     Prior to setting the case for oral argument, we invited the
parties to submit supplemental letter briefs addressing the effect
of Page on the issues raised in the appeal.




                                 8
       Section 10851, subdivision (a), provides, “Any person who
drives or takes a vehicle not his or her own, without the consent
of the owner thereof, and with intent either to permanently or
temporarily deprive the owner thereof of his or her title to or
possession of the vehicle, whether with or without intent to steal
the vehicle . . . is guilty of a public offense . . . .” By its terms,
section 10851 is a “wobbler” offense that may be punished as
either a felony or a misdemeanor. (See § 10851, subd. (a); People
v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 974, fn. 4
[listing § 10851, subd. (a), as a statute that provides for
“alternative felony or misdemeanor punishment”].) 6
       As the Supreme Court has observed, section 10851,
subdivision (a), “‘proscribes a wide range of conduct.’” (People v.
Garza (2005) 35 Cal.4th 866, 876.) A person can violate
section 10851 by “[u]nlawfully taking a vehicle with the intent to
permanently deprive the owner of possession.” (Garza, at p. 871.)
Section 10851 can also be violated “when the driving occurs or
continues after the theft is complete” (referred to by the Supreme


6      Although section 10851 provides a violation may be
punished as either a felony or a misdemeanor, Penal Code
section 666.5 states a person previously convicted of a felony
violation of that statute or felony grand theft of an automobile
who is subsequently convicted of one of those offenses “shall be
punished by imprisonment pursuant to subdivision (h) of
Section 1170 for two, three, or four years, or a fine of
ten thousand dollars ($10,000), or both the fine and the
imprisonment.” As discussed, Gutierrez was charged under
Penal Code section 666.5, admitted his prior felony conviction for
violating section 10851 and was sentenced to the high term under
Penal Code section 666.5 rather than under the felony provisions
of section 10851.




                                  9
Court as “posttheft driving”) or by “‘driving [a vehicle] with the
intent only to temporarily deprive its owner of possession (i.e.
joyriding).’” (Garza, at pp. 871, 876.)
       Taking a vehicle with the intent to permanently deprive
the owner of possession is a form of theft, and a defendant
convicted of violating section 10851 with such an intent has
suffered a theft conviction. (Page, supra, 3 Cal.5th at pp. 1183,
1186-1187; People v. Garza, supra, 35 Cal.4th at p. 871.) On the
other hand, posttheft driving and joyriding are not forms of theft;
and a conviction on one of these bases is not a theft conviction.
(Page, at p. 1183 [“[r]egardless of whether the defendant drove or
took the vehicle, he [or she] did not commit auto theft if he [or
she] lacked the intent to steal”]; Garza, at p. 871.)
          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 Pen. Code, § 1170.18; Harris v. Superior
Court (2016) 1 Cal.5th 984, 992.) Among other things,
Proposition 47 reclassified a variety of grand theft crimes to petty
theft offenses when the value of the money, labor, real or
personal property taken did not exceed $950. (See Pen. Code
§ 490.2, subd. (a) [“[n]otwithstanding Section 487 or any other
provision of law defining grand 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)




                                 10
shall be considered petty theft and shall be punished as a
misdemeanor”].) 7
       Following passage of Proposition 47, courts of appeal
disagreed whether Penal Code section 490.2 applied to vehicle
theft under section 10851, that is, whether a theft conviction
under section 10851 could continue to be punished as a felony
regardless of the value of the vehicle or whether it must be
punished as a misdemeanor if the vehicle’s value did not exceed
$950. The Supreme Court resolved the issue in Page, holding,
“By its terms, Proposition 47’s new petty theft provision,
section 490.2, covers the theft form of the Vehicle Code
section 10851 offense.” (Page, supra, 3 Cal.5th at p. 1183.) Thus,
after the passage of Proposition 47, “obtaining an automobile
worth $950 or less by theft constitutes petty theft under
section 490.2 and is punishable only as a misdemeanor,
regardless of the statutory section under which the theft was
charged.” (Page, at p. 1187.)
          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
section 10851 or Penal Code section 487, subdivision (d)(1), only if
the vehicle was worth more than $950. As a result, Gutierrez
argues he “is entitled to resentencing under [Penal Code]
section 1170.18, subdivision (a),” because there was no evidence


7      Proposition 47 also authorized those convicted and serving
sentences for since-reclassified felony offenses to petition for
recall of sentence and resentencing under certain circumstances.
(Pen. Code, § 1170.18.)




                                11
presented at trial of the rental car’s value. The Attorney General
argues Gutierrez forfeited this argument because it was not
raised in the trial court and, even if not forfeited, asserts the
burden was on Gutierrez to prove the value of the vehicle.
       The parties have mistakenly conflated the retrospective
and prospective applications of Proposition 47. As discussed,
Penal Code section 1170.18 allows individuals who had already
been convicted of felonies at the time of Proposition 47’s
enactment to petition for resentencing if the felony had been
reclassified as a misdemeanor. When such a petition has been
filed, the defendant bears the burden of proving he or she is
eligible for retrospective relief. (People v. Romanowski (2017)
2 Cal.5th 903, 916.) However, Gutierrez had not even committed
the crime charged at the time Proposition 47 went into effect.
Thus, relief under Penal Code section 1170.18 is unavailable to
him. The issue in this case is not whether Gutierrez should be
resentenced under Penal Code section 1170.18, but whether he
was properly convicted of a felony theft violation of section 10851.
He was not.
       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




                                 12
now a misdemeanor unless the prosecution proves the value of
the items stolen exceeds $950”].) As Gutierrez argues, because
the People failed to present any evidence at trial regarding the
value of the rental car, the felony conviction for violating
section 10851, if predicated on vehicle theft, cannot stand.
       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
                               8
section 10851 can be violated. As Page made clear, when a
violation of section 10851 is “based on theft,” a defendant can be
convicted of a felony only if the vehicle was worth more than
$950. (Page, supra, 3 Cal.5th at pp. 1187-1188.) It is also
necessary to prove the vehicle was taken with an intent to
permanently deprive the owner of its possession—“a taking with

8      Gutierrez did not object to the instructions on unlawful
driving or taking, and the Attorney General contends any claim
of error directed to those instructions has been forfeited.
However, when an instruction allegedly affects the substantial
rights of the defendant, it is reviewable even in the absence of an
objection. (Pen. Code, § 1259; see, e.g., People v. Hudson (2006)
38 Cal.4th 1002, 1011-1012 [failure to object to instruction does
not forfeit issue on appeal when alleged error concerns elements
of offense]; People v. Smithey (1999) 20 Cal.4th 936, 976, fn. 7
[defendant did not forfeit right to object to instruction alleged to
be incorrect statement of law and given in violation of due
process]; People v. Van Winkle (1999) 75 Cal.App.4th 133, 139-
140 [defendant’s challenge to constitutionality of jury
instructions not forfeited for failure to object because “the
constitutional right to have all elements of a criminal offense
proved beyond a reasonable doubt is substantial”].)




                                   13
intent to steal the property.” (Page, at p. 1182.) The court’s
instructions in this case included neither of those essential
elements for a felony theft conviction. But, as discussed,
section 10851’s prohibitions sweep more broadly, punishing not
only taking but also driving without the owner’s consent and with
the intent either to permanently or temporarily deprive the
owner of possession. Neither an intent to steal nor the value of
the vehicle is an element of a felony offense of posttheft driving or
joyriding. (See People v. Van Orden, supra, 9 Cal.App.5th at
p. 1287; but see Page, at p. 1188, fn. 5 [declining to consider
“whether equal protection or the avoidance of absurd
consequences requires that misdemeanor sentencing under
[Penal Code] sections 490.2 and 1170.18 extend not only to those
convicted of theft under Vehicle Code section 10851, but also to
those convicted for taking a vehicle without the intent to
permanently deprive the owner of possession”].) 9
      The court’s instructions here allowed the jury to convict
Gutierrez of a felony violation of section 10851 for stealing the
rental car, even though no value was proved—a legally incorrect
theory—or for a nontheft taking or driving offense—a legally
correct one. “When a trial court instructs a jury on two theories

9      On February 21, 2018 the Supreme Court ordered the
parties in People v. Bullard, review granted and briefing deferred
February 22, 2017, S239488, to brief the following question:
“‘Does equal protection or the avoidance of absurd consequences
require that misdemeanor sentencing under Penal Code
sections 490.2 and 1170.18 extend not only to those convicted of
violating Vehicle Code section 10851 by theft, but also to those
convicted for taking a vehicle without the intent to permanently
deprive the owner of possession?’ (See People v. Page (2017)
3 Cal.5th 1175, 1188, fn. 5.)”




                                 14
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.” (People v. Chiu
(2014) 59 Cal.4th 155, 167; see People v. Guiton (1993) 4 Cal.4th
1116, 1128-1129.) “An instruction on an invalid theory may be
found harmless when ‘other aspects of the verdict or the evidence
leave no reasonable doubt that the jury made the findings
necessary’ under a legally valid theory.” (In re Martinez (2017)
3 Cal.5th 1216, 1226.)
       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 Penal Code section 1260, “an appellate court may modify a




                                 15
verdict to reflect a conviction of a lesser included offense, where
insufficient evidence supports the conviction on the greater
offense”].)
       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 section 10851 after the effective date
of Proposition 47 when no evidence of the vehicle’s value had
been introduced at the jurisdiction hearing. Considering the case
to present an issue of sufficiency of the evidence, 10 the D.N. court
held permitting the People to introduce evidence of value at a
second wardship jurisdiction hearing would violate principles of
double jeopardy. Thus, the juvenile adjudication was reduced to
a misdemeanor. (Id. at p. 901.)
       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 Vehicle Code section 10851 was to be a misdemeanor
unless the value of the stolen vehicle exceeded $950. . . . [¶] The
People should have been well aware the value of the stolen
vehicle was relevant on whether the offense was a felony. The
People chose instead to gamble, and lost their bet, that the
Supreme Court would find Vehicle Code section 10851 outside


10    Because it was a juvenile court proceeding, the finding D.N.
had violated section 10851 by taking her mother’s car without
permission was made by the court, not a jury. At disposition the
court exercised its discretion and found the violation to be a
felony. Possible nontheft violations of section 10851 are not
addressed in the appellate decision.




                                  16
the ambit of Proposition 47 and Penal Code section 490.2.” (In re
D.N., supra, 19 Cal.App.5th 901.)
      Given the conflicting authority on the issue and the
prevailing decisions in the courts of appeal at the time of
                 11
Gutierrez’s trial, 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.


11    Although Supreme Court review was ultimately granted in
each of these cases, and in one instance the court of appeal
granted a rehearing after the time of Gutierrez’s trial, as of
February 2016, three published decisions had held Proposition 47
did not apply to section 10851 and only one had held it did.
(Compare People v. Page (2015) 241 Cal.App.4th 714, __ [“Penal
Code section 490.2 is simply inapplicable to defendant’s
conviction” for violation of section 10851], judg. mod. 3 Cal.5th
1175; People v. Haywood (2015) 243 Cal.App.4th 515, __ [same],
review granted March 9, 2016, S232250; People v. Orozco (2016)
244 Cal.App.4th 65, 68-69 [same], rehg. granted, review granted
Aug. 10, 2016, S235603 with People v. Ortiz (2016)
243 Cal.App.4th 854, __ [“a defendant convicted under
Section 10851 may be eligible for Proposition 47 resentencing if
he or she can show the offense qualifies as a petty theft under
Section 490.2”], review granted March 16, 2016, S232344.)
12    The D.N. opinion does not explain why it criticizes the
prosecutor for failing to predict the Page holding when presenting
evidence at the jurisdiction hearing but not the juvenile court
judge who exercised his discretion at the disposition hearing and
found the vehicle theft to be a felony.




                                 17
      2. Admission of Evidence of Gutierrez’s Prior Felony
         Conviction Was Not Prejudicial Error
         a. Governing law and standard of review
       Evidence Code section 1101, subdivision (a), “prohibits
admission of evidence of a person’s character, including evidence
of character in the form of specific instances of uncharged
misconduct, to prove the conduct of that person on a specified
occasion.” (People v. Ewoldt (1994) 7 Cal.4th 380, 393; accord,
People v. Rogers (2013) 57 Cal.4th 296, 325 (Rogers) [“‘“[e]vidence
that a defendant has committed crimes other than those
currently charged is not admissible to prove that the defendant is
a person of bad character or has a criminal disposition”’”]; People
v. Foster (2010) 50 Cal.4th 1301, 1328 [same]; see People v.
Falsetta (1999) 21 Cal.4th 903, 913 [“‘[t]he rule excluding
evidence of criminal propensity is nearly three centuries old in
the common law’”].)
       Evidence Code section 1101, subdivision (b), however,
clarifies this rule “‘does not prohibit admission of evidence of
uncharged misconduct when such evidence is relevant to
establish some fact other than the person’s character or
disposition,’ such as identity, common plan or intent,” provided
the charged and uncharged offenses are sufficiently similar to
support a rational inference of those facts or of some other fact
unrelated to the defendant’s propensity to commit the charged
offenses. (People v. Edwards (2013) 57 Cal.4th 658, 711
(Edwards); accord, People v. Jones (2013) 57 Cal.4th 899, 930;
Rogers, supra, 57 Cal.4th at p. 326; see People v. Falsetta, supra,
21 Cal.4th at p. 914 [“the rule against admitting evidence of the
defendant’s other bad acts to prove his present conduct [is]




                                18
subject to far-ranging exceptions,” citing Evid. Code, § 1101,
subd. (b)].)
       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 uncharged 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 Evidence Code
section 352. (People v. Leon (2015) 61 Cal.4th 569, 599; People v.
Kipp (1998) 18 Cal.4th 349, 371; see Evid. Code, § 352 [“The court
in its discretion may exclude evidence if its probative value is
substantially outweighed by the probability that its admission
will (a) necessitate undue consumption of time or (b) create




                                 19
substantial danger of undue prejudice, of confusing the issues, or
of misleading the jury.”].)
      We review the trial court’s determination of admissibility of
evidence under Evidence Code sections 1101, subdivision (b), and
352 for abuse of discretion. (People v. Leon, supra, 61 Cal.4th at
pp. 597, 599; Edwards, supra, 57 Cal.4th at p. 711; People v.
Davis (2009) 46 Cal.4th 539, 602.)
         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 section 10851. The People
argued the prior conviction was admissible to show intent,
motive, knowledge and absence of mistake. Gutierrez opposed
the motion, arguing the circumstances of the prior offense and
the current one were not sufficiently similar to support any
permissible inference. After hearing argument from the parties,
including a summary of the proffered evidence, the trial court
held evidence of the prior conviction was admissible to show
whether Gutierrez intended to take the vehicle without
permission and whether he intended to evade the police.
       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 went 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.




                                 20
       Los Angeles Police Officer Noel Sanchez testified he
received a radio call on April 11, 2012 regarding a stolen vehicle,
which he later learned belonged to Sandoval. Soon after
receiving the radio call Sanchez located the vehicle parked and
unoccupied not far from Sandoval’s house. Sanchez observed the
vehicle from a distance and eventually saw a man, later
identified as Gutierrez, enter it and drive away. Sanchez
followed the vehicle in his patrol car until Gutierrez parked and
left the car. Sanchez attempted to engage Gutierrez in
conversation from his patrol car; but, when Gutierrez saw the
officer, he fled. Sanchez chased Gutierrez on foot. After a few
moments, Sanchez saw Gutierrez leave an alley. Gutierrez had
discarded his jacket and was walking nonchalantly, “like if
nothing was wrong, just minding his own business.” Sanchez
recognized Gutierrez and arrested him for vehicle theft. The
location of Gutierrez’s arrest was only a few blocks from where he
was arrested for the current offense.
       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




                                 21
mean that he’s a taker of vehicles; that he goes around and
take[s] people’s vehicles.” Gutierrez’s counsel emphasized the
differences between the two incidents and argued the jury should
not believe Gonzalez’s testimony that she did not give Gutierrez
permission to use the vehicle. Instead, she argued, Gonzalez
likely told the police the vehicle was stolen only because she
knew Gutierrez did not have the rental car company’s permission
to drive it and she did not want to get in trouble with her father
and the rental car company.
          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 the
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 to support



13    The People argued in the trial court Gutierrez’s prior
offense was relevant to show intent, motive, knowledge, absence
of mistake and modus operandi. On appeal the People argue only
that the prior offense was relevant to show intent.




                                22
an inference Gutierrez harbored the same intent in each case is,
at best, minimal.
       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 Gonzalez’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
section 10851 charge on any theory of unlawful driving or taking,
the jury must have believed Gonzalez’s testimony she did not give
Gutierrez permission to take the car. In that case, Gutierrez’s
prior conduct is immaterial because Gonzalez’s testimony is
dispositive evidence Gutierrez did not have permission. In
addition, the trial court appropriately limited the use of
Gutierrez’s prior felony conviction by instructing the jury under




                                23
CALCRIM No. 375, “Do not consider this evidence for any other
purpose except for the limited purpose of intent, consent, or
motive[.] [¶] Do not conclude from this evidence that the
defendant has a bad character or is disposed to commit crime.” It
is presumed the jury followed this instruction. (People v. Sanchez
(2001) 26 Cal.4th 834, 852.)
       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


14    On appeal Gutierrez argues the jury deliberated for over
six hours. However, it appears Gutierrez is counting the time the
jury took a lunch break and was in the courtroom for
supplemental argument, readback of testimony and rewatching
the video footage.




                                 24
personnel records. The trial court agreed to inspect the records to
determine whether Jimenez had a history of misconduct related
to lying or fabrication. The court reviewed the requested records
in camera and found no discoverable information. At Gutierrez’s
request, which the People did not oppose, we have reviewed the
sealed record of the in camera proceedings and conclude the trial
court satisfied the minimum requirements in determining
whether there was discoverable information. No abuse of
discretion occurred. (See People v. Mooc (2001) 26 Cal.4th 1216,
1225.)
                         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 accept 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 section 10851. In all other respects Gutierrez’s
convictions are affirmed.


                                           PERLUSS, P. J.
      We concur:



            ZELON, J.                      BENSINGER, J. *



*     Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.




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