People v. Van Orden
9 Cal. App. 5th 1277
| Cal. Ct. App. | 2017Background
- In 1999 Van Orden stole a 1979 Toyota Celica (valued at $700), drove it into a reservoir, and was convicted by plea of felony Vehicle Code §10851 (unlawful taking/driving of a vehicle). He was sentenced and ordered to pay $700 restitution.
- Proposition 47 (2014) created Penal Code §490.2, redefining petty theft as theft of property valued at $950 or less and mandating such offenses be misdemeanors; §1170.18 provides a post‑conviction petition process to reclassify eligible prior felonies as misdemeanors.
- The legal question: whether a §10851 conviction that involved taking/driving a low‑value vehicle qualifies as a theft under §490.2 (and thus is eligible for reclassification under §1170.18), or whether §10851 convictions are categorically outside Proposition 47.
- The court applied the California Supreme Court’s framework from People v. Garza, which splits §10851 offenses into four types: pure theft, pure driving (joyriding), driving theft (theft accomplished by driving away), and posttheft driving (driving after a substantial break). Only pure theft and driving theft constitute "theft convictions."
- The trial court denied Van Orden’s §1170.18 petition; the appellate court reversed, holding Van Orden’s offense was driving theft of a car worth <$950 and therefore would have been petty theft under §490.2, entitling him to relief under §1170.18.
Issues
| Issue | Plaintiff's Argument (Van Orden) | Defendant's Argument (People) | Held |
|---|---|---|---|
| Whether a §10851 conviction that involved taking/driving a vehicle can qualify as petty theft under §490.2 when value ≤ $950 | Van Orden: his §10851 conviction was a driving theft (theft by driving away) of a $700 car and thus would be petty theft under §490.2 and eligible for §1170.18 relief | People: §10851 is not within Proposition 47’s scope; absence from §1170.18(a)’s listing and other interpretive arguments show voters did not intend to include §10851 | Court: §10851 convictions that are thefts (pure theft or driving theft) qualify under §490.2 when value ≤ $950; driving offenses (joyriding/posttheft driving) do not |
| How to distinguish theft‑based §10851 from driving‑based §10851 | Van Orden: apply Garza’s categories — if driving accomplished the theft (no substantial break), it is theft | People: rely on textual/structural arguments (e.g., §1170.18(a) list, §490.2 opening clause, §666 amendments) to exclude §10851 | Court: adopt Garza/Kehoe substantial‑break test; if no substantial break and intent to permanently deprive, driving theft is a theft conviction |
| Whether §1170.18(a)’s enumerated penalty provisions limit the universe of eligible offenses (expressio unius) | Van Orden: §1170.18(a) lists penalty provisions, not an exhaustive list of substantive offenses; §490.2 controls low‑value thefts | People: §10851’s absence from §1170.18(a) shows exclusion from Proposition 47 | Court: rejects expressio unius reading; list concerns resentencing provisions, not a closed list of affected substantive offenses |
| Whether interpretive maxims or related statutory references (e.g., §666) defeat application of §490.2 to §10851 thefts | People: retaining §10851 in §666, and other textual arguments, indicates §10851 is distinct and should not be subsumed | Van Orden: §666 reference serves other purposes; plain text of §490.2 governs low‑value thefts | Court: plain language of §490.2 and voters’ intent control; maxims cannot override clear statutory meaning |
Key Cases Cited
- People v. Garza, 35 Cal.4th 866 (California Supreme Court) (§10851 can be either a theft or driving conviction; framework distinguishing pure theft, pure driving, driving theft, posttheft driving)
- People v. Kehoe, 33 Cal.2d 711 (California Supreme Court) (adopted substantial‑break test separating taking and later driving)
- People v. Jaramillo, 16 Cal.3d 752 (California Supreme Court) (§10851 proscribes a wide range of conduct; takes/drives with intent to permanently or temporarily deprive)
- People v. Strong, 30 Cal.App.4th 366 (California Court of Appeal) (applied substantial‑break test to distinguish posttheft driving)
- People v. Malamut, 16 Cal.App.3d 237 (California Court of Appeal) (applied lapse‑of‑time/substantial‑break analysis)
- People v. Pena, 68 Cal.App.3d 100 (California Court of Appeal) (fair market value test for determining misdemeanor vs. felony theft)
- People v. Rizo, 22 Cal.4th 681 (California Supreme Court) (when initiative language is ambiguous, courts may examine voters’ intent and materials)