People v. Lara

On August 15, 2013, defendant Henry Arsenio Lara II was found driving a stolen 2000 Honda Civic. In January 2015, he was charged by information with unlawfully taking or driving a vehicle ( Veh. Code, § 10851, subd. (a) ) and receiving the same stolen vehicle ( Pen. Code, § 496d, subd. (a) ), both alternative felony-misdemeanors (also known as wobblers (see People v. Park (2013) 56 Cal.4th 782 , 789, 156 Cal.Rptr.3d 307 , 299 P.3d 1263 ) ). Evidence at trial showed the vehicle was taken from in front of the owner's house on August 8 or 9, 2013. On August 14, police found the vehicle parked at a mobile home park known as a dumping ground for stolen vehicles. The vehicle was kept under surveillance and, on August 15, was seen being driven in the same area. Police stopped the car and arrested defendant, the driver and only occupant. The car had a broken

A.

Proposition 47 did not reduce to misdemeanors all violations of Vehicle Code section 10851. That statute, which prohibits taking or driving a vehicle without the owner's consent and with the intent to temporarily or permanently deprive the owner of title or possession, can be violated by a range of conduct, only some of which constitutes theft. And only theft-based violations

B.

We next consider defendant's claim of instructional error. We find no reversible error on that score, either.

As noted earlier, the jury in this case was instructed only on an unlawful driving theory of the Vehicle Code section 10851 offense. Specifically, the instruction required the People to prove that defendant "drove someone else's vehicle" with the requisite intent and without the owner's permission. The verdict form similarly restricted the theory of guilt; it allowed the jury to find defendant guilty only of driving a vehicle without permission.

Defendant argues that the instruction was insufficient, relying on People v. Gutierrez (2018) 20 Cal.App.5th 847 , 229 Cal.Rptr.3d 531 ( Gutierrez ). In that case, the court reversed a felony conviction under Vehicle Code section 10851 for a post-Proposition 47 offense because the jury instructions did not distinguish between theft and nontheft forms of the offense and did not require that the jury find a vehicle value greater than $ 950 in order to convict on a theory of vehicle theft. ( Gutierrez , at pp. 856-857, 229 Cal.Rptr.3d 531 .)

The instruction here did not suffer from the same error, however. As the Court of Appeal explained in Gutierrez , the instructions in that case "allowed the jury to convict Gutierrez of a felony violation of [Vehicle Code] 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." ( Gutierrez , supra , 20 Cal.App.5th at p. 857, 229 Cal.Rptr.3d 531 .) On the record before it, the appellate court could not determine which theory the jury had

Although the Court of Appeal in this case erred in holding Proposition 47 inapplicable to violations of Vehicle Code section 10851, it was correct to affirm defendant's conviction on that charge. Even considering the ameliorative changes wrought by Proposition 47, the evidence at trial was sufficient to sustain a felony conviction under Vehicle Code section 10851, and the trial court's instructions on the offense were not prejudicially erroneous.

Although the information alleged that defendant violated Vehicle Code section 10851 in that he "did willfully and unlawfully drive and take" the

Rejecting the argument, the Court of Appeal affirmed defendant's felony conviction and sentence. The majority concluded that Proposition 47 has no application to a violation of Vehicle Code section 10851. Justice Slough, in a separate concurring opinion, concluded that Proposition 47 does apply to a Vehicle Code section 10851 violation, provided that the violation is based on theft. But because defendant's violation was instead based on unlawful driving of a vehicle, Justice Slough joined the majority in affirming the judgment.

We granted defendant's petition for review and held the case for People v. Page (2017) 3 Cal.5th 1175 , 225 Cal.Rptr.3d 786 , 406 P.3d 319 ( Page ). In that case, we held that Proposition 47 does apply to violations of Vehicle Code section 10851 that are based on theft of a vehicle. But the procedural history of this case raises another threshold question not addressed in Page : Is a defendant who had not yet been sentenced when Proposition 47 took effect entitled to initial sentencing under the measure? Or must he or she instead be sentenced under pre-Proposition 47 law-subject to his or her ability to later file a petition for resentencing under section 1170.18 ? That section provides resentencing relief to one "who, on November 5, 2014, was serving a sentence" for an offense eligible for reduction ( section 1170.18, subd. (a) ), as well as providing for redesignation of the conviction as a misdemeanor for one "who has completed his or her sentence for a conviction" for such an eligible offense ( id. , subd. (f) ).

To address this issue, after Page was decided we asked the parties to brief the following question: Does Penal Code section 490.2, added by Proposition 47, effective November 5, 2014, apply directly (i.e., without a petition under Penal Code, § 1170.18 ) in trial and sentencing proceedings held after Proposition 47's effective date, when the charged offense was allegedly committed before Proposition 47's effective date?

II.

In their responsive briefing, defendant and the Attorney General agree that defendants who committed theft crimes before the effective date of Proposition 47, but who are tried or sentenced after the measure's effective

In DeHoyos , we employed this framework to determine whether Proposition 47's amended penalty provisions apply automatically-that is, without need for a resentencing petition under section 1170.18-to defendants who were serving felony sentences as of Proposition 47's effective date but whose sentences had not yet become final on appeal. Proposition 47, we noted, is not silent on the question of retroactivity, as was the case in Estrada ; rather, Proposition 47 "contains a detailed set of provisions designed to extend the statute's benefits retroactively. [Citation.] Those provisions include, as relevant here, a recall and resentencing mechanism for individuals who were 'serving a sentence' for a covered offense as of Proposition 47's effective date. ( § 1170.18, subd. (a).)" ( DeHoyos, supra , 4 Cal.5th at p. 603, 229 Cal.Rptr.3d 687 , 412 P.3d 368 .) The measure's resentencing provision, we observed, "draws no express distinction between persons serving final sentences and those serving nonfinal sentences, instead entitling both categories of prisoners to petition courts for recall of sentence." ( Ibid . ) And that provision, section 1170.18, "expressly makes resentencing dependent on a court's assessment of the likelihood that a defendant's early release will pose a risk to public safety, undermining the idea that voters 'categorically determined that "imposition of a lesser punishment" will in all cases "sufficiently serve the public interest." ' " ( DeHoyos , at p. 603, 229 Cal.Rptr.3d 687 , 412 P.3d 368 .) These provisions, together with statements in the Voter Information

The differences between initial sentencing under Proposition 47's amended penalty provisions and resentencing under section 1170.18 's petition procedure have led to questions about which set of provisions apply to

When a new statute decreases the prescribed punishment for criminal conduct, as did Proposition 47, whether the change applies to preenactment conduct is a matter of legislative intent. ( In re Estrada (1965) 63 Cal.2d 740 , 744, 48 Cal.Rptr. 172 , 408 P.2d 948 .) We articulated the basic framework for discerning that intent in Estrada . In that case, we held that when the Legislature enacts a law ameliorating punishment without including an express savings clause or a similar

As the parties before us agree, the same reasoning leads to a different answer here. Unlike the defendant in DeHoyos , defendant here had not been sentenced-indeed, he had not yet been charged-when Proposition 47 became effective. By its terms, then, the resentencing provision in section 1170.18 does not apply to him. Proposition 47 provides resentencing relief to one "who, on November 5, 2014, was serving a sentence" for an offense eligible for reduction ( § 1170.18, subd. (a) ), but it does not expressly address reduction of punishment for a defendant who had not yet been sentenced on its effective date. On the contrary, Proposition 47's resentencing provisions are simply silent on the subject of retroactivity as to such a defendant. In the absence of contrary indications, we may therefore presume under Estrada that the enacting body intended Proposition 47's reduced penalties to apply in this category of nonfinal cases.

We therefore agree with the parties that the applicable ameliorative provisions of Proposition 47 (here, Penal Code section 490.2 ) apply directly in trial and sentencing proceedings held after the measure's effective date, regardless of whether the alleged offense occurred before or after that date.

III.

Because defendant had not yet been sentenced at the time Proposition 47 became

As we explained in Page , we had recognized the distinction between the theft and nontheft forms of the Vehicle Code section 10851 offense long before Proposition 47 was enacted. In People v. Garza , supra , 35 Cal.4th 866 , 28 Cal.Rptr.3d 335 , 111 P.3d 310 , "we considered whether dual convictions under Vehicle Code section 10851 and Penal Code section 496, subdivision (a) (receiving stolen property) violated the statutory rule against convicting a person for both stealing and receiving the same property. We concluded the answer depended on the basis for the Vehicle Code section 10851 conviction-whether it was for stealing the automobile or for taking or driving it in another prohibited manner: 'Unlawfully taking a vehicle with the intent to permanently deprive the owner of possession is a form of theft, and the taking may be accomplished by driving the vehicle away. For this reason, a defendant convicted under section 10851(a) of unlawfully taking a vehicle with the intent to permanently deprive the owner of possession has suffered a theft conviction and may not also be convicted under section 496(a) of receiving the same vehicle as stolen property. On the other hand, unlawful driving of a vehicle is not a form of theft when the driving occurs or continues after the theft is complete .... Therefore, a conviction under section 10851(a) for posttheft driving is not a theft conviction ....' ( Garza , at p. 871 [ 28 Cal.Rptr.3d 335 , 111 P.3d 310 ], italics omitted.)" ( Page , supra , 3 Cal.5th at p. 1183, 225 Cal.Rptr.3d 786 , 406 P.3d 319 .)

In Page , we shed further light on the distinction between vehicle theft and posttheft driving as forms of the Vehicle Code section 10851 offense: "Posttheft driving in violation of Vehicle Code section 10851 consists of driving a vehicle without the owner's consent after the vehicle has been stolen, with the intent to temporarily or permanently deprive the owner of title or possession. Where the evidence shows a 'substantial break' between the taking and the driving, posttheft driving may give rise to a conviction under Vehicle Code section 10851 distinct from any liability for vehicle theft." ( Page , supra , 3 Cal.5th at p. 1188, 225 Cal.Rptr.3d 786 , 406 P.3d 319 , quoting People v. Kehoe (1949) 33 Cal.2d 711 , 715, 204 P.2d 321 .) While a theft-based violation of Vehicle Code section 10851 may be punished as a felony only if the vehicle is shown to have been worth over $ 950, a violation committed by posttheft driving

We Concur:

CANTIL-SAKAUYE, C. J.

CHIN, J.

CORRIGAN, J.

LIU, J.

CUÉLLAR, J.

GROBAN, J.