Lead Opinion
—Like People v. Garza (2005)
Defendant Charles Samuel Van Orden appeals the court’s order denying his petition under the Safe Neighborhoods and Schools Act (Proposition 47) to have his felony sеction 10851 conviction reduced to misdemeanor petty theft under section 490.2. The People argue the trial court was correct in concluding section 10851 offenses cannot qualify as petty theft offenses under any circumstances.
Proposition 47, enacted by California voters in November 2014, reduced certain felony theft-related offenses to misdemeanors when the value of the stolen property does not exceed $950. The initiative also created a procedure to allow defendants who previously suffered felony convictions for offenses that are now classified as misdemeanors under Proposition 47 to petition the trial court to reduce their convictions to misdemeanors and to resentence them, if they are still serving time on their convictions. (Pen. Code, § 1170.18, subds. (a), (1).) Section 490.2, the provision at issue here, redefines the crime of petty theft as “obtaining any property by theft where the value of the . . . property taken does not exceed nine hundred fifty dollars ($950).” (§ 490.2, subd. (a).) Section 490.2 also directs any petty theft, so defined, shall be punished as a misdemeanor. The provision codifies the electorate’s determination that low-value thefts should be punished as misdemeanors in all cases, removing the discretion prosecutors previously possessеd to punish such crimes as felonies. (People v. Perkins (2016)
The issue on appeal is whether Van Orden’s conviction for violating section 10851, which criminalizes the act of unlawfully taking or driving a vehicle (Garza, supra,
Applying the categories of section 10851 violations articulated in Garza, we conclude Proposition 47 applies to section 10851 theft convictions when the value of the vehicle is $950 or less, but not convictions based on driving, no matter the valuе. To determine whether a particular section 10851 conviction is for theft or driving, it is useful to distinguish the four kinds of section 10851 violations—pure theft, pure driving, driving theft, and posttheft driving. Pure theft is theft accomplished without driving the vehicle, for example, conveying ‘“by auto freight... the stolen automobile directly into a public warehouse.” (People v. Cuevas (1936)
The record in this case shows Van Orden stole a $700 car, drove it into a reservoir, and left it there. He is therefore guilty of a driving theft of a low-value car, which is a theft conviction and would have been petty theft had Proposition 47 been in effect at the time of his offense. We conclude Van Orden was eligible for relief under Penal Code section 1170.18 (hereafter section 1170.18) and remand to the trial court with directions to grant the petition.
I
FACTUAL BACKGROUND
According to the probation report, on Nоvember 8, 1999, the victim reported Van Orden, her boyfriend of one month, had stolen her 1979 Toyota
The San Bernardino County District Attorney charged Van Orden with felony violation of section 10851 (count 1) and misdemeanor vandalism in violation of Penal Code section 594, subdivision (a) (count 2). As to count 1, the complaint alleged ‘“[o]n or about November 8, 1999,” Van Orden “did unlawfully drive and take a certain vehicle, to wit, [a] 1979 Toyota Célica, . . . then and there the personal property of [the victim] without the consent of and with intent, either permanently or temporarily, to deprive the said owner of title to and possession of said vehicle.”
On November 19, 1999, the court accepted Van Orden’s plea of nolo contendere to count 1. At the sentencing hearing on February 23, 2000, the court dismissed the vandalism count, sentenced Van Orden to 90 days in jail, and ordered him to pay the victim $700 in restitution, which is the amount the victim said she paid for the Célica two months before.
On April 13, 2016, Van Orden filed a section 1170.18 petition asking the trial court to reduce his felony sеction 10851 conviction to a misdemeanor. The People responded Van Orden was not entitled to relief because section 10851 “is not covered” by Proposition 47. At the hearing on the petition, the court acknowledged Proposition 47’s application to section 10851 was under review by the California Supreme Court, and stated, “Given the current state of the law, 1170.18—motion denied. Obviously, all these cases are subject to revisiting should the issue be resolved.”
Van Orden timely appealed.
II
DISCUSSION
Van Orden contends his section 10851 conviction qualifies for reduction to misdemeanor section 490.2 petty theft under Proposition 47. We agree.
A. Theft Versus Driving Convictions Under Section 10851
Section 10851 provides in relevant part, “[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 thereof of his or her title to or possession of the vehicle, whether with or without intent
As our high court explained decades ago, section 10851 “proscribes a wide range of conduct.” (People v. Jaramillo (1976)
Garza demonstrates section 10851 covers four separate kinds of offenses. These offenses can be understood to fall on a spectrum, with pure theft and pure driving at opposite ends and driving theft and posttheft driving in between. Pure theft occurs when a defendant unlawfully takes a vehicle, without actually driving it, “with the intent to permanently deprive the owner of possеssion.” (Garza, supra,
In contrast, pure driving, commonly known as joyriding, is defined by driving a vehicle “ ‘with the intent only to temporarily deprive its owner of possession.’ ” (Garza, supra,
The third kind of offense, driving theft, is theft accomplished by driving the vehicle away from the owner’s possession. (Garza, supra,
The four categories we identify will aid the determination of whether a Proposition 47 petitioner’s conviction is for theft or unlawful driving. Under Garza, pure theft and driving theft are “theft conviction[s].” (Garza, supra,
Pure driving and pure theft cases are eаsy to recognize, but we must be able to distinguish between driving theft and posttheft driving. When distinguishing between these two offenses, the question is, when does driving to accomplish the theft end and posttheft driving begin?
In Garza, the court explained “[w]hether vehicle driving is legally separable from vehicle taking—depends on whether the driving continues after
Following Kehoe, appellate courts have applied the ‘“substantial break” test to determine whether a section 10851 conviction is a driving or theft offense. In People v. Malamut (1971)
In People v. Strong (1994)
The ‘“substantial break” test allows a court to determine whether a section 10851 conviction is for pure theft or posttheft driving. We therefore conclude the test applies to determining whether a section 10851 conviction qualifies for relief under section 1170.18.
B. Low-value Car Theft Is Petty Theft Under Section 490.2
As noted, Proposition 47 redefined the offense of petty theft by adding section 490.2 to the Penal Code. Before Proposition 47, petty theft was
Section 490.2 expanded the offense of petty theft by defining it as “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).” (§ 490.2, subd. (a), italics added.) A vehicle is property, not otherwise specifically excluded from the scope of section 490.2. (See People v. Martin (1921)
Here, the record discloses Van Orden stole the victim’s car, drove it into a reservoir, and left it there. Of the four kinds of section 10851 offenses, Van Orden’s is driving theft—theft accomplished by driving the vehicle away— and therefore constitutes a “theft conviction.” (Garza, supra,
Had Proposition 47 been in effect at the time Van Orden stole the victim’s car, section 490.2 would have required the prosecution to charge him with misdemeanor petty theft. (§ 490.2, subd. (a) [conduct that constitutes petty theft “shall be considered petty theft and shall be punished as a misdemeanor”].) Consequently, Van Orden “wоuld have been guilty of a misdemeanor under [Proposition 47] had [it] been in effect at the time of the offense,” and is therefore entitled under the petitioning process established in section 1170.18 to have his conviction reduced to a misdemeanor “in accordance with Section[] . . . 490.2 ... of the Penal Code.” (§ 1170.18, subd. (a).)
C. Opposing Arguments
We are aware the recent appellate decisions in People v. Johnston (2016)
1. The “definitive list” argument
In Johnston, our colleagues in the Third District concluded subdivision (a) of section 1170.18 contains a definitive list of offenses that are eligible for reduction under Proposition 47. (Johnston, supra,
The text of section 1170.18 pertinent to this argument provides that when a court has determined a petitioner still serving time on his sentence is entitled
While having a list of offenses affected by Proposition 47 would certainly be hеlpful for deciding section 1170.18 petitions, no such list exists. Section 1170.18, subdivision (a) lists provisions that establish new misdemeanor penalties, not provisions containing affected substantive offenses. Were it a list of affected substantive offenses, it would contain provisions like Penal Code sections 487 (grand theft), 459 (burglary), 476 (forgery, counterfeiting), and 504 (embezzlement). None of these provisions appears in the list, and yet no court has used the expressio unius maxim to conclude these offenses are not affected by Proposition 47. These provisions do not appear on the list because they set out substantive offenses whose penalties the voters amended by enacting the penalty provisions section 1170.18, subdivision (a) does list.
Because section 10851 also sets out a substantive offense whose penalty Proposition 47 amended, section 10851 does not belong in a list of provisions containing new penalties. The absence of section 10851 from the list therefore implies nothing, and we cannot use the expressio unius maxim as an interpretive aid. Section 490.2, which redefines petty theft and sets out the punishment for the new crime, does appear in section 1170.18’s list of new penalties, and it is that new provision (§ 490.2) which controls all low-value car thefts.
Rather than offer a list of eligible offenses, Proposition 47 requires courts tо read any relevant criminal provisions in the Penal Code, Health and Safety Code, and Vehicle Code to discern whether a petitioner’s offense of conviction must be reduced to a misdemeanor and, if the petitioner is still serving time on the conviction, whether to resentence the petition under the new and amended penalty provisions listed in section 1170.18, subdivision (a). Only after doing so will the court be equipped to follow the statutory directive to determine whether a petitioner “would have been guilty of a misdemeanor under [Proposition 47] had [it] been in effect at the time of the offense.” (§ 1170.18, subds. (a), (1); see icl., subds. (b), (g).)
2. The opening clause of section 490.2
As further support for its conclusion, the Johnston court pointed to the opening clause of section 490.2, which clarifies the definition of petty theft contained therein applies ‘ “[notwithstanding Section 487’ ... ‘or any other provision of law defining grand theft: ” (Johnston, supra, 247 Cal.App.4th at pp. 255-256, review granted.) The court viewed section 1085l’s absence from this clause as another indication the drafters intended to exclude the offense from Proposition 47’s purview. We disagree with this interpretation. The opening clause is set off by a comma, which indicates it is nonrestrictive. (Garner’s Modern English Usage (4th ed. 2016) pp. 995, 1016.) Omitting the opening clause does not alter the meaning of the remainder of the sentence; the independent clause containing the definition of petty theft stands on its own and means what it says—the act of “obtaining any property by theft where the value . . . does not exceed nine hundred fifty dollars ($950)” constitutes petty theft and must be charged as a misdemeanor. (§ 490.2, subd. (a).)
In our view, the purpose of the opening clause is to clarify that section 490.2’s new definition of petty theft abolished the former theft regime that utilized property categories (e.g., cars and avocados) and replaced it with
3. Penal Code section 666 and the maxim against surplusage
Proposition 47 amended Penal Code section 666 (petty theft with prior; hereafter section 666) and reduced the maximum prison sentence from three yeаrs to one year. Eligible predicates include prior convictions for “petty theft, grand theft, . . . auto theft under Section 10851 of the Vehicle Code, burglary, carjacking, robbery,” and receiving stolen property. (§ 666, subd. (a).) The Johnston and Sauceda courts reasoned that by amending section 666, but leaving section 10851 convictions in the list of eligible predicates, the drafters demonstrated their intention to exclude section 10851 from Proposition 47. (Johnston, supra,
This argument is mistaken. The reference to section 10851 in section 666 is not rendered surplus by treating section 10851 vehicle thefts as grand or petty thefts. The reference to section 10851 in section 666 is necessary to make clear the provision covers convictions for unlawful driving as well as thefts of the specialized vehicles described in subdivision (b) of section 10851.
4. Garza and the operation of section 10851
Finally, we address the Sauceda court’s discussion of the applicability of Garza in Proposition 47 cases. In Sauceda, our colleagues in the Fifth District acknowledged “a subset of criminal convictions under Vehicle Code section 10851 could be eligible for resentencing due to the California Supreme Court’s analysis in Garza,” which held some violations of section 10851 qualify as theft convictions. (Sauceda, supra,
It is certainly true there is no long-standing interplay between section 10851 and Proposition 47, but this is so only because Proposition 47 is brand new. In our view, the fact the voters enacted Proposition 47 recently is no reason to ignore our high court’s view of section 10851 ’s general application. In Garza, the court explained how the often-perplexing statute, which “ ‘proscribes a wide range of conduct,’ ” could be broken down and understood. (Garza, supra,
In any event, the Sauceda court clarified it ultimately took “no position” on whether the offense would qualify for resentencing had the offense been theft based, as is Van Orden’s offense. (Sauceda, supra, 3 Cal.App.5th at pp. 646-647, review granted.) The court noted, “there [was] no factual support for the conclusion that [the] appellant was convicted only of a theft-based Vehicle Code violation.” (Ibid.) We therefore do not read Sauceda as disagreeing with the specific conclusion of this case, which is that theft convictions under section 10851 like Van Orden’s are eligible for Proposition 47 relief where the vehicle stolen was worth $950 or less.
D. Voters’ Intent
Even if it were ambiguous under the рlain text of section 490.2 whether the new definition of petty theft covered low-value car thefts under section 10851, the legislative history of Proposition 47 supports our conclusion. (See People v. Rizo (2000)
Again, Johnston and Sauceda reach the opposite conclusion. (Johnston, supra,
No one disagrees Proposition 47 was intended to prohibit prosecutors from charging low-value car thefts as felony Penal Code section 487, subdivision (d)(1) violations. Interpreting Proposition 47 to exclude section 10851 creates an end run around this prohibition. It allows prosecutors to simply choose to charge low-value car thieves as felons under section 10851 instead of as misdemeanants. Such an outcome contravenes the voters’ clear intent to reduce prison spending and redirect the savings to community-based programs by lessening the punishment for low-value car thefts to misdemeanors. Our understanding of the interplay between section 10851 and section 490.2 advances that intent.
Ill
DISPOSITION
We reverse the order denying Van Orden’s petition and remand with directions to grant the petition.
Notes
The court suggested in dicta that posttheft driving might be dеfined as any driving which occurs after “the taker reaches a place of temporary safety.” (Garza, supra,
The statute makes an exception for certain violent or serious recidivists.
Courts are split on whether some section 10851 convictions are eligible for Proposition 47 relief. Most of the cases dealing with this issue were taken up by the California Supreme Court for review before July 1, 2016, and are no longer citable authority (see Cal. Rules of Court, rule 8.1115(e)). (See, e.g., People v. Page (2015)
See, e.g., Strang v. Cabrol (1984)
Section 10851, subdivision (b) criminalizes theft of ambulances, distinctively marked law enforcement or fire department vehicles on emergency calls, and vehicles that have been modified for the use of a disabled veteran or any other disabled person and display a distinguishing placard or plate. Proposition 47 does not affect this offense because a specific
Dissenting Opinion
Dissenting.—I continue to adhere to my previously published view that Vehicle Code section 10851 convictions do not fall within the scope of relief provided by Proposition 47. For that reason, I would affirm, pending the California Supreme Court’s final resolution of the issue. (See, e.g., People v. Page, review granted Jan. 27, 2016, S230793.)
Respondent’s petition for review by the Supreme Court was granted June 14, 2017, S241574.