Morales appeals, arguing on various grounds that his Vehicle Code
On May 5, 2017, a woman was inspecting a piece of property on which her family was in escrow. She saw a large white van backed up to the garage door, which she found odd. A man (later identified as defendant, Adrian Morales) got out of the van and claimed to be there because of his interest in buying the property. When the woman took photos of the van and license plate, defendant became agitated and drove away. The woman called 911.
Napa County Sheriff's Deputy David Quigley was dispatched to investigate the call of suspicious activity involving the white van. Quigley spotted the van, and someone in its driver's seat, in a parking lot near the property where the 911 caller had originally seen it; Morales got out as Quigley approached. Quigley found drug paraphernalia on Morales, who said that a man named Shawn gave him the van to use because Morales was homeless. Morales was to return the van to Shawn in a few days. Morales was arrested and charged by information with felony unlawful taking or driving of a vehicle ( § 10851, subd. (a) ), and other counts not relevant to this appeal. The information also alleged three prior felony convictions in Nevada for robbery and conspiracy to commit robbery.
At trial, employees of the company that owned the van, PACE Solano, testified that Morales did not work for PACE Solano
Consistent with the prosecution's theory and the evidence at trial, the verdict form referenced only unlawful driving of the vehicle, not unlawful taking. In closing argument, Morales's counsel argued that Morales was not guilty of unlawfully driving a vehicle under section 10851, because Morales lacked the intent to deprive the owner of possession of that vehicle. The jury convicted Morales of all charges.
After Morales waived his right to a jury trial on his prior convictions, the trial court held a bench trial on the prior strike allegations, finding two оf the three allegations to be true. The trial court sentenced Morales to 32 months in state prison: a 16-month sentence for his unlawful driving conviction, doubled to 32 months on the basis of one prior strike.
This appeal followed.
Morales makes several arguments for reducing his section 10851 conviction to a misdemeanor or, in the alternative, for granting him a new trial on that count. First, Morales argues that the Supreme Court's decision in People v. Page (2017)
We do, however, agree with Morales's fifth and final argument and thus hold that the true findings on the prior strike allegations should be rеversed under People v. Gallardo (2017)
I. Page Does Not Preclude Felony Punishment for Unlawful Driving of a Vehicle in Violation of Section 10851.
Morales cites Page , characterizing as its "core holding" the proposition "that if conduct underlying a section 10851 conviction constitutes theft, the conviction is potentially a misdemeanor under Proposition 47." From there, Morales then argues that any violation of section 10851 constitutes theft. Morales thus reasons that the "core holding" of Page prеcludes felony punishment for his conviction under section 10851, notwithstanding the fact that he was convicted of unlawfully driving-not taking-a vehicle.
Section 10851, subdivision (a), provides for the punishment of "[a]ny 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
In concluding that defendants convicted of violating section 10851 are not categorically ineligible for resentencing under Proposition 47, the Page court drew heavily from a previous decision, People v. Garza (2005)
Attempting to persuade us that Page may be turned on its head and read as a holding that all violations of section 10851 must be categоrically designated as misdemeanors under Proposition 47, Morales contends that the distinction in Garza and Page between theft and non-theft forms of section 10851 violation is dicta and urges this court to reject it. Morales misreads Page . In support of this assertion, Morales points to Penal Code section 484, defining theft. On the grounds that Penal Code section 484 employs the term "drive away," Morales argues that driving a vehicle in violation of Vehicle Code sеction 10851 therefore constitutes theft. But the portion of Penal Code section 484, subdivision (a), that includes the term "drive away" is not describing different types of theft offenses. Rather, that clause simply lists the various ways one can commit larceny, forbidding people to "feloniously steal, take, carry, lead, or drive away the personal property of another." (
Morales also suggests that because embezzlement is a theft crime whose perpetrator need not intend to permanently deprive the prоperty owner of possession, a violation of section 10851 in which the perpetrator intends only to temporarily deprive the vehicle's owner of possession constitutes theft too. This is a non sequitur. The mere fact that the embezzlement form of theft has no "permanent deprivation" requirement does not compel the conclusion that vehicle theft must necessarily be similar in this respect. Morales did not embezzle the van in question, so the question of embezzlement is of little relevance here.
In sum, Morales has shown no grounds for abandoning the Garza / Page schema in which taking a vehicle with the intent to permanently deprive its owner is a theft offense, while post-theft driving offenses under section 10851 are not. Thus, Page does not preclude felony punishment for Morales' section 10851 conviction based on unlawful driving of the PACE Solano van.
II. No Absurd Consequences Result from Punishing the Theft of a Vehicle Under Section 10851 Lеss Harshly Than the Unlawful Driving of a Vehicle Under the Same Statute.
Morales argues that absurd consequences result from requiring misdemeanor punishment for theft of a vehicle with a value under $950 while allowing felony punishment for unlawfully driving the same vehicle. In so arguing, Morales notes what he considers to be two absurd results: (1) that "some defendants convicted of a less culpable act will still be subject to harsher felony sentences, while no onе convicted of the most culpable act of stealing the vehicle ever will"; and (2) that "defendants [will have] the perverse incentive to incriminate themselves ... and lie about criminal acts they did not commit in section 10851 cases involving low-value vehicles."
" ' " 'The literal meaning of the words of a statute may be disregarded to avoid absurd results....' " [Citations.]' [Citation.] But the absurdity doctrine should only be used in ' "extreme cases ...." ' " ( People v. Bell (2015)
Thus, Morales seeks to persuade this court that the plain meaning of Penal Code section 490.2 entails results so dire as to compel us to "rewrite the statute[ ] under the absurd consequences doctrine." ( Bell , supra ,
We also reject Morales's argument that to uphold the plain meaning of Penal Code section 490.2 results in the purportedly absurd consequence of establishing an incentive for a defendant to claim dishonestly that he stole a vehicle he did not, in fact, steal. As a preliminary matter, Page suggests that this type of perjury would be unavailing, as such false testimony would not, as defendant implicitly assumes, require a misdemeanor theft conviction if the prosecution's evidence also in fact established post-theft driving. (Cf. Page , supra ,
Morales cites no authority for the proposition that a defendant's dubious incentive to commit perjury constitutes an absurd consequence, and it's easy to see why. For a defendant who is willing to lie, the incentive to do so is not even unusual, much less absurd. An innocent defendant who has not committed each element of a less serious crime may choose to enter a plea agreement in order to reduce his or her sentencing exposure in the event of a conviction after trial on a more serious one. Or a guilty defendant may testify
III. Imposing Harsher Punishment for Unlawfully Driving a Vehicle than for Theft of the Same Vehicle Does Not Violаte Equal Protection.
Morales also argues that it violates the equal protection clauses of the United States and California Constitutions to punish post-theft driving under section 10851 more harshly than to punish stealing the same, low-value vehicle under the same statute. In order to establish an equal protection claim, an appellant must show that the two classes receiving unequal treatment are similarly situated for purposes of the law challenged. ( People v. Morales (2016)
Here, the two classes receiving unequal treatment under Penal Code section 490.2 are individuals who have committed different offenses. As explained above, where a defendant is convicted under section 10851 for taking a vehicle with the intent to permanently dеprive its owner of possession, the defendant suffers a theft conviction, but other convictions under that statute are not theft convictions. ( Garza , supra ,
IV. Morales Was Not Denied Due Process by Any Purported Failure to Instruct the Jury on the Elements of "Theft by Larceny" or "Aiding and Abetting."
Noting that a conviction for aiding and abetting the theft of the vehicle would have carried a lesser sentence than his conviction for unlawfully driving it, Morales argues that he was "depriv[ed] of a defense" by virtue of the trial court's purported failure to instruct the jury on the elements of "Theft by Larceny" and "Aiding and Abetting."
"In the case of defenses, ... a sua sponte instructional duty arises 'only if it appears that the defendant is relying on such a defense, or if there is substantial
With respect to the trial court's findings on the prior strike allegations, Mоrales argues, under the authority of Gallardo , that the trial court violated his Sixth Amendment right to a jury trial by relying on an ambiguous record consisting of guilty pleas concerning robberies committed in Nevada. The People concede, and we accept the concession.
However, Morales's requested remedy-resentencing pursuant to Penal Code section 1170, subdivision (h), without retrial of the prior strike allegations-is inapproрriate. In reversing the trial court's findings on Gallardo's prior strike allegations, the Gallardo court noted that a "defendant's constitutional right to a jury trial sweeps more broadly than our case law previously recognized" ( Gallardo, supra,
DISPOSITION
The judgment on count one is affirmed. The matter of the prior strike allegations is remanded to the trial court for a new determination in accordance with the opinion in Gallardo .
WE CONCUR:
STREETER, ACTING P. J.
TUCHER, J.
Notes
All subsequent statutory references are to the Vehicle Code unless otherwise noted.
Moreover, Page makes clear that theft under section 10851 occurs when there is no " 'substantial break' " (Page , supra ,
Morales emphasizes that he "has never claimed" that the trial court's purported failure to instruct concerned a lesser included offense under either the elements or accusatory pleading test or a lesser related offense within the meaning of People v. Birks (1998)