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Filed 8/31/20 P. v. Wallace CA3

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

SIDNEY EDWARD WALLACE,

Defendant and Appellant.

C082750

(Super. Ct. No. 15F07322)

OPINION ON REMAND

Defendant Sidney Edward Wallace was convicted of multiple charges related to a 

domestic violence incident, including carjacking (Pen. Code, § 215, subd. (a)) and felony 

taking a vehicle (Veh. Code, § 10851).1 On appeal, he contended the trial court’s 

carjacking instructions were inadequate. He also challenged his felony conviction under 

section 10851, arguing the People did not establish his crime was a felony pursuant to 

Proposition 47 and Penal Code section 490.2. Specifically, defendant argued the jury had 

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 Undesignated statutory references are to the Vehicle Code.
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not made findings, and he had not made admissions, as to either of the facts necessary to 

elevate the offense to a felony: (1) that the value of the vehicle was over $950; and (2) 

that he committed the theft version of the offense by taking the vehicle with the intent to 

permanently deprive the owner rather than the nontheft version of driving.

In an unpublished opinion, we rejected defendant’s claims. We concluded as to 

the carjacking instructions, there was no error in the trial court declining to give a 

pinpoint instruction defining “force” for the jury. As to the section 10851 conviction, we 

concluded: (1) defendant forfeited the claim of error as he made no objection to the 

instruction given, under which the jury could have found defendant committed the theft 

(felony) or nontheft (misdemeanor) version of the offense; and (2) any error was 

harmless because even if the value of the vehicle was under $950 no reasonable jury 

could have found he intended to permanently deprive the victim of her vehicle. 

Accordingly, we affirmed the judgment. (People v. Wallace (Feb. 5, 2018, C082750) 

[nonpub. opn.], review granted May 16, 2018, S247488.) The Supreme Court granted 

defendant’s petition for review and deferred the matter pending consideration and 

disposition of a related issue in People v. Bullard ((Dec. 12, 2016, E065918) [nonpub. 

opn.], review granted Feb. 22, 2017, S239488), or pending further order of the court.

In March 2020, our Supreme Court issued People v. Bullard (2020) 9 Cal.5th 94 

(Bullard), in which it concluded, “Except where a conviction is based on posttheft 

driving (i.e., driving separated from the vehicle’s taking by a substantial break), a 

violation of section 10851 must be punished as a misdemeanor theft offense if the vehicle 

is worth $950 or less.” (Id. at p. 110.) The Supreme Court transferred the matter back to 

us with directions to vacate our opinion and reconsider the cause in light of Penal Code 

section 1259, People v. Hudson (2006) 38 Cal.4th 1002, 1011-1012 (Hudson), and 

Bullard. We vacated our opinion on June 25, 2020.

After consideration of Penal Code section 1259, Hudson, and Bullard, we must 

reverse the section 10851 conviction. On remand, the People will have the choice of 
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either accepting the conviction’s reduction to a misdemeanor or retrying the charge as a 

felony. (See People v. Jackson (2018) 26 Cal.App.5th 371, 381 (Jackson).) 

Consideration of these authorities does not change our analysis and conclusion for the 

carjacking conviction. We affirm the remaining convictions.

FACTUAL AND PROCEDURAL BACKGROUND2

After years of an on-again, off-again relationship, which included a lot of arguing 

and physical fights, in late 2015 defendant and Jessica G. got into an argument and 

physical altercation about access to their children as Jessica was leaving her workplace. 

Jessica was screaming as the fight progressed from pushing and shoving, and defendant 

put his hands around Jessica’s neck. She “gave up” and defendant “snatched” her keys. 

Jessica and another witness described defendant as having taken her keys by force. 

Although she was afraid defendant would hurt her during the altercation, she was not 

fearful when he took the keys. Defendant drove away in Jessica’s car. Jessica returned 

inside the building and called the police.

After defendant left Jessica’s workplace, he picked up the children at their day 

care and drove approximately 10 minutes to his mother’s home, which was down the 

street from Jessica’s work. Police found the car, defendant, and the children there. 

Jessica retrieved the children and car approximately 90 minutes after the incident. The 

car was undamaged. Defendant later stated he had driven the car for less than 30 

minutes.

A jury found defendant guilty of carjacking (Pen. Code, § 215, subd. (a); count 

two), misdemeanor battery against the mother of his child (Pen. Code, § 243, 

subd. (e)(1); count three), and unlawful taking or driving of a vehicle (§ 10851, subd. (a); 

count four). The trial court sentenced defendant as follows: five years in state prison for 

2

 The factual and procedural background relevant to this opinion are summarized from 

our previous opinion. (People v. Wallace, supra, C082750.)
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count two; one year in county jail for count three; and two years for count four, stayed 

pursuant to Penal Code section 654. The trial court suspended execution of the sentence 

and ordered five years’ probation.

DISCUSSION

I

Carjacking Offense

Defendant contends the trial court erred in refusing his pinpoint instruction further 

defining the concept of fear as to the carjacking offense. The People argue the pinpoint 

was unnecessary because the term “force” is not a concept that requires definition. We 

agree.

Background

In the instructional conference, defense counsel requested a pinpoint instruction as 

to the carjacking offense be added to the instructions in CALCRIM No. 1650.3 Relying 

on People v. Garcia (1996) 45 Cal.App.4th 1242, 1246, disapproved on other grounds in 

People v. Mosby (2004) 33 Cal.4th 353, 365, footnotes 2 and 3, defense counsel 

requested the court include language that “the force required for the carjacking must be 

3 “To prove the defendant is guilty of [carjacking], the People must prove that one, 

defendant took a motor vehicle that was not his own. Two, the vehicle was taken from 

the immediate presence of a person who possessed the vehicle. Three, the vehicle was 

taken against that person’s will. Four, the defendant used force or fear to take that 

vehicle or to prevent that person from resisting. And, five, when the defendant used force 

or fear to take the vehicle, he intended to deprive the other person of possession of the 

vehicle, either temporarily or permanently. [¶] [T]he . . . defendant’s intent to take the 

vehicle must have been formed before or during the time he used the force or fear. If the 

defendant did not form the required intent until after using the force or fear, then he did 

not commit carjacking. [¶] The person takes something when he gains possession of it 

and moves it some distance. The distance moved may be short. [¶] Fear, as used here, 

means fear of injury to the person herself. [¶] A person does not actually have to hold or 

touch something to possess it. It is enough if the person has the right to control it. [¶] A 

vehicle is within a person’s immediate presence if it is sufficiently within her control, so 

that she could keep possession of the vehicle if not prevented by force or fear.”
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more than incidental touching necessary to take the property.” The trial court denied the 

request.

As relevant, CALCRIM No. 1650 as given required the jury to find defendant had 

used force or fear to take a vehicle that was not his or to prevent the person in possession 

of the vehicle from resisting. The instruction defined fear as “Fear, as used here, means 

fear of injury to the person herself.”

During deliberation, the jurors asked the following question with respect to 

whether defendant used force or fear to take the vehicle or to prevent that person from 

resisting: “We would like a definition or clarification of what force means here.” 

Defense counsel again requested the trial court give his proposed pinpoint instruction or a 

definition as stated in People v. Wright (1996) 52 Cal.App.4th 203, 210: “When actual

force is present in a robbery, at the very least it must be a quantum more than that which 

is needed merely to take the property from the person of the victim, and is a question of 

fact to be resolved by the jury taking into account the physical characteristics of the 

robber and the victim.” The trial court denied that request. The trial court stated it would 

instruct the jury “the word force as used in the instruction is to be applied using its 

ordinary everyday meaning,” since the definition of force was “within the common 

layman’s understanding of those terms.”

Analysis

Addressing the Supreme Court’s order first, Hudson involved claimed 

instructional error and held that the rule of forfeiture does not apply where the jury 

instruction was wrong. (Hudson, supra, 38 Cal.4th at p. 1012.) Here, we determined 

there was no instructional error and, in any event, concluded any error was harmless. 

A defendant has a “ ‘right to have the jury determine every material issue 

presented by the evidence.’ ” (People v. Flood (1998) 18 Cal.4th 470, 480.) “ ‘[I]n 

appropriate circumstances’ a trial court may be required to give a requested jury 

instruction that pinpoints a defense theory of the case.” (People v. Bolden (2002) 
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29 Cal.4th 515, 558.) Still, “a trial court may properly refuse an instruction offered by 

the defendant if it incorrectly states the law, is argumentative, duplicative, or potentially 

confusing [citation], or if it is not supported by substantial evidence [citation].” (People 

v. Moon (2005) 37 Cal.4th 1, 30.)

As courts have explained, “[Penal Code] section 215, subdivision (a) does not 

define the degree of force required to support a conviction for carjacking and the standard 

instruction on carjacking (CALCRIM No. 1650) does not define the force requirement.” 

(People v. Hudson (2017) 11 Cal.App.5th 831, 836.) Because the crime of carjacking is 

modeled on the robbery statute, we “look to interpretations of the force requirement in 

the robbery context in construing the requirement in the carjacking context.” (Id. at 

p. 835.) Although robbery “require[s] that the perpetrator exert some quantum of force in 

excess of that ‘necessary to accomplish the mere seizing of the property,’ ” (People v. 

Anderson (2011) 51 Cal.4th 989, 995), the force element of robbery has no technical 

meaning and is presumed to be understood by jurors (see, e.g., People v. Anderson (1966) 

64 Cal.2d 633, 640; People v. Sullivan (2007) 151 Cal.App.4th 524, 544). Because 

CALCRIM No. 1650 was plain and adequate, there was no error in denying a duplicative 

and potentially confusing pinpoint instruction. (See People v. Garceau (1993) 6 Cal.4th 

140, 189, disapproved on another point in People v. Yeoman (2003) 31 Cal.4th 93, 117.)

Even if the trial court erred, it was not reasonably probable a result more favorable 

to defendant would have been reached had the pinpoint instruction been given. (See 

People v. Flood, supra, 18 Cal.4th at p. 490 [a trial court’s erroneous failure to give a 

pinpoint instruction is reviewed for prejudice under the standard of People v. Watson

(1956) 46 Cal.2d 818, 836-837]; see also People v. Earp (1999) 20 Cal.4th 826, 887 

[same].) Despite defendant’s attempts to characterize his behavior as merely snatching 

the keys, Jessica testified defendant took the keys “by force and by fear and against [her] 

will.” Moreover, prior to taking the keys, defendant grabbed Jessica by the wrist, pulled 

her toward the car, pushed her, shoved her, put his hands around her neck, and refused 
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her repeated requests to stop. As Jessica testified, she “just gave up” by the time 

defendant took the keys. Any error was harmless.

II

Section 10851 Offense

Defendant contends his conviction for violating section 10851 must be reversed 

because there was no jury finding or admission that the vehicle was worth more than 

$950, as required for a felony theft conviction under Proposition 47. In addition, during 

oral argument, defendant argued the trial court erred in convicting him of a felony under 

section 10851 because the jury did not determine whether he unlawfully took Jessica’s 

vehicle by theft. 

Proposition 47 became effective in November 2014. (People v. Gutierrez (2018) 

20 Cal.App.5th 847, 854 (Gutierrez).) It was designed to reduce the punishment for 

certain drug and theft offenses. (Ibid.) Among other things, Proposition 47 reclassified a 

variety of grand theft crimes to petty theft offenses when the value of the property taken 

does not exceed $950. (Gutierrez, at p. 854.) Proposition 47 amended or added several 

statutory provisions, including Penal Code section 490.2. (People v. Page (2017) 

3 Cal.5th 1175, 1179 (Page).) Penal Code section 490.2 provides that “obtaining any 

property by theft” is petty theft, which is punished as a misdemeanor if the value of the 

property taken is $950 or less. (Pen. Code, § 490.2, subd. (a).)

Following passage of Proposition 47, appellate courts disagreed as to whether 

Penal Code section 490.2 applied to vehicle theft under section 10851. (Gutierrez, supra, 

20 Cal.App.5th at p. 854.) In Page, our Supreme Court resolved the issue, holding that 

“Proposition 47’s new petty theft provision, [Penal Code] section 490.2, covers the theft 

form of the . . . section 10851 offense” such that “obtaining an automobile worth $950 or 

less by theft constitutes petty theft under [Penal Code] section 490.2 and is punishable 

only as a misdemeanor, regardless of the statutory section under which the theft was 

charged.” (Page, supra, 3 Cal.5th at pp. 1183, 1187.) Page expressly left open the 
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question of whether “misdemeanor sentencing under [Penal Code] sections 490.2 and 

1170.18 extend[s] not only to those convicted of theft under . . . section 10851, but also to 

those convicted for taking a vehicle without the intent to permanently deprive the owner 

of possession.” (Id. at p. 1188, fn. 5, italics omitted.)

Bullard resolved that question left open by Page and held that misdemeanor 

sentencing under Proposition 47 does extend to convictions for taking a vehicle without 

the intent to permanently deprive the owner of possession in violation of section 10851. 

The court reasoned “that to interpret Proposition 47 to split the section 10851 taking 

offense into two offenses—misdemeanor taking with intent to permanently deprive the 

owner of the vehicle, and felony taking with intent to do so only temporarily—is so 

patently illogical that we cannot imagine any plausible reason why voters might have 

intended that result. The elements of taking an automobile without the intent to 

permanently deprive the owner of its possession are included in taking with such intent. 

While the initiative’s drafters did not include any provisions aimed expressly at violations 

of section 10851, we determined in Page that the initiative was intended to apply to thefts 

of low-value vehicles prosecuted under that section. We conclude here that it was also 

intended to ameliorate the punishment for low-value vehicle takings committed without 

the intent to permanently deprive.” (Bullard, supra, 9 Cal.5th at p. 109, italics omitted.) 

Thus, the court concluded “Proposition 47’s substantive effect on section 10851 can be 

summarized as follows: Except where a conviction is based on posttheft driving (i.e., 

driving separated from the vehicle’s taking by a substantial break), a violation of section 

10851 must be punished as a misdemeanor theft offense if the vehicle is worth $950 or 

less.” (Id. at p. 110.)

The trial in this matter occurred prior to Page and Bullard. The jury was 

instructed with CALCRIM No. 1820 that the People were required to prove defendant 

took or drove someone else’s vehicle without consent and intended to deprive the owner 

of possession or ownership for any period of time. The People acknowledge the jury was 
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not asked to, and did not make, a finding regarding the value of the vehicle defendant 

took from Jessica. The jury was not instructed that any taking required the prosecution to 

establish that the vehicle in question had a value of more than $950. Thus, instructional 

error occurred. (See Jackson, supra, 26 Cal.App.5th at p. 378.)4

Prejudice

“Although the record cannot support a guilty verdict for felony vehicle theft, the 

problem with [defendant]’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 section 10851 can be violated.” (Gutierrez, 

supra, 20 Cal.App.5th at p. 856, fn. omitted.) This error was “eminently understandable” 

since neither Page or Bullard were decided until after defendant’s trial. (Jackson, supra, 

26 Cal.App.5th at p. 378.)

“The court’s instructions here allowed the jury to convict [defendant] of a felony 

violation of section 10851 for stealing the . . . car, even though no value was proved—a 

legally incorrect theory—or for a nontheft taking or driving offense—a legally correct 

one.” (Gutierrez, supra, 20 Cal.App.5th at p. 857.) “ ‘When a trial court instructs a jury 

on two theories of guilt, one of which was legally correct and one legally incorrect, 

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 Although Proposition 47 was enacted prior to trial in this matter, the instructional error 

requiring a finding of the value of the vehicle is not forfeited by the failure of defendant 

to raise it in the trial court. “ ‘Generally, a party may not complain on appeal that an 

instruction correct in law and responsive to the evidence was too general or incomplete 

unless the party has requested appropriate clarifying or amplifying language.’ (People v. 

Andrews (1989) 49 Cal.3d 200, 218.) But that rule does not apply when, as here, the trial 

court gives an instruction that is an incorrect statement of the law. (People v. Smithey

(1999) 20 Cal.4th 936, 976, fn. 7; People v. Frazer (2003) 106 Cal.App.4th 1105, 1116,

fn. 5.)” (Hudson, supra, 38 Cal.4th at pp. 1011-1012; see also Pen. Code, § 1259 [“The 

appellate court may also review any instruction given, refused or modified, even though 

no objection was made thereto in the lower court, if the substantial rights of the defendant 

were affected thereby”].) “Because the instruction given was wrong, the rule of 

forfeiture does not apply.” (Hudson, at p. 1012.)
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reversal is required unless there is a basis in the record to find that the verdict was based 

on a valid ground.’ [Citation.] Unlike with other types of instructional error, prejudice is 

presumed with this type of error.” (Jackson, supra, 26 Cal.App.5th at p. 378.) “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.’ ” (Id. at 

pp. 378-379, fn. omitted.) Here, there was no jury finding that the vehicle was worth 

more than $950 and no facts to support a posttheft driving conviction. Based on the 

record, we cannot conclude that the jury relied on a legally correct theory. Accordingly, 

we must reverse the conviction. (Id. at p. 381.)

DISPOSITION

The conviction for unlawful taking or driving of a vehicle under section 10851 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 conviction to a misdemeanor, in which case the trial court is to 

resentence defendant accordingly, or to retry him for a felony violation of section 10851. 

The remaining convictions are affirmed.

 /s/

HOCH, J.

We concur:

 /s/

HULL, Acting P. J.

 /s/

RENNER, J.