Opinion
A154154
02-26-2020
THE PEOPLE, Plaintiff and Respondent, v. THOMAS STEVEN ENGLAND, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 51708627)
Defendant appeals a judgment entered upon a jury verdict finding him guilty of felony receiving a stolen vehicle. (Pen. Code § 496d, subd. (a).) He contends the jury should have been instructed to determine whether the stolen vehicle was worth more than $950. We agree the jury should have been so instructed but find the omission harmless beyond a reasonable doubt. Accordingly, we affirm the judgment.
All further statutory references are to the Penal Code. --------
FACTUAL AND PROCEDURAL BACKGROUND
In December 2016, the San Ramon Police Department investigated a report of a stolen vehicle. The owner had been working on his 2003 Chevy Silverado in front of his home and left the truck briefly unattended. When he returned, the truck was missing. It was later found in defendant's possession. When the truck was returned to the owner, there was no exterior damage other than a missing antenna, which had been cut off after the truck was stolen.
The owner had purchased the truck new in 2004 for $32,000 and maintained it himself. He testified the truck was "running well" and in "good condition." The owner estimated that the truck's current value was "[l]ike 7,000" dollars, and there was no other evidence at trial of the truck's value.
Defendant was charged with felony driving or taking a vehicle (Veh. Code, § 10851, subd. (a); count 1) and receiving a stolen motor vehicle (§ 496d, subd. (a); count 2). The information also alleged enhancements for a prior auto theft conviction (§ 666.5), a strike prior (§ 667, subds. (d) & (e)), and six prison priors (§ 667.5, subd. (b)). The jury found defendant guilty of Count 2 but deadlocked as to Count 1, and Count 1 was dismissed. The trial court found the strike prior not true and the six prison priors true, but struck four of the prison priors before sentencing defendant to a total of five years. This was a midterm of three years for the substantive count and one year each for two prison term enhancements.
DISCUSSION
I. Proposition 47
Defendant contends that his felony conviction under section 496d must be reversed because the jury was not instructed to determine whether the value of the stolen vehicle exceeded $950.
Proposition 47 (the Safe Neighborhoods and Schools Act) reduces certain theft crimes from felonies to misdemeanors. (People v. Varner (2016) 3 Cal.App.5th 360, 365.) Specifically, Proposition 47 amended section 496, governing buying or receiving stolen property, to provide that if the defendant receives " 'any' " stolen property worth $950 or less, the offense is a misdemeanor unless the defendant has disqualifying prior offenses. (Id. at p. 366.) Similarly, section 490.2, added by Proposition 47, provides that "obtaining any property by theft where the value of the . . . property taken does not exceed [$950] shall be considered petty theft and shall be punished as a misdemeanor . . . ." (§ 490.2; People v. Williams (2018) 23 Cal.App.5th 641, 646-647 (Williams).)
Proposition 47 did not explicitly amend the statute in this case, section 496d, which makes the offense of receiving a motor vehicle punishable as either a felony or a misdemeanor. In Williams, however, a different panel of this division held that section 496d falls within the scope of Proposition 47, so that receipt of a stolen vehicle worth $950 or less must be treated as a misdemeanor. (Williams, supra, 23 Cal.App.5th at pp. 647-651.) There is a split of authority on this issue, which is currently pending before our high court. (People v. Orozco (2018) 24 Cal.App.5th 667, review granted Aug. 15, 2018, S249495.)
But even if we assume Williams is a correct statement of law, this does not end our inquiry. A trial court's omission of an element of an offense is subject to harmless error analysis. (Neder v. United States (1999) 527 U.S. 1, 10.) An error is harmless if we can conclude beyond a reasonable doubt it did not contribute to the jury's verdict. (People v. Mil (2012) 53 Cal.4th 400, 417; Chapman v. California (1967) 386 U.S. 18, 24.) We must determine " 'whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted evidence.' " (Mil, at p. 417, quoting Neder, at p. 19.)
On the facts before us, we are convinced the omission was harmless beyond a reasonable doubt. There is uncontroverted evidence that the truck was in "good condition" and "running well." The owner maintained it himself and had been its sole owner. He bought it new for $32,000 in 2004, and he testified without objection that its current value was about $7,000. (Evid. Code, § 813, subd. (a)(2) [owner may opine on property's value].) He characterized it as a "really good truck." Defendant neither challenged the owner's valuation on cross-examination nor presented evidence to suggest the truck was worth less than $7,000.
Despite these facts, defendant argues the evidence would support a conclusion that the prosecution had not proven the truck's value exceeded $950. The owner was working on the truck when it was stolen, so the jury could have inferred that it needed repairs, he argues. And there was no evidence of Blue Book valuation and no expert testimony about the value of the truck. But in light of the owner's unimpeded and uncontradicted testimony about the condition of his truck, the jury would have no reason to infer the owner was engaged in anything more than routine maintenance or minor repairs when the truck was stolen. And although he was not offered as an expert in court, the law has long recognized that the jury can reasonably infer an owner is familiar with his property's value and condition. (People v. Coleman (1963) 222 Cal.App.2d 358, 361.) What distinguishes this case from those on which defendant relies (e.g., People v. Pearson (2012) 53 Cal.4th 306, 323-324 (Pearson); People v. Beaver (2010) 186 Cal.App.4th 107, 124-125) is that there were no "conflicting narratives" and no "live issue[s]" for the jury to decide. (Pearson, at p. 323.) We see no possibility a fully-instructed jury would have rejected this evidence and concluded a thirteen-year-old truck in good condition was worth no more than $950. Accordingly, the defendant was not prejudiced by the instructional omission.
II. Prior Prison Term Enhancements
Defendant's sentence consists of the three-year midterm for Count 2 and two one-year enhancements for prior prison terms. (§ 667.5, subd. (b).) On January 1, 2020, while this appeal was pending, Senate Bill No. 136 took effect, amending section 667.5, subdivision (b) to limit its one-year enhancements to cases in which the prior prison term was for a sexually violent offense. (Stats. 2019, ch. 590, § 1, eff. Jan. 1, 2020.) Defendant's prior prison terms were not for sexually violent offenses.
Defendant contends he is entitled to the retroactive benefit of Senate Bill No. 136, that is, to have his prior prison-term enhancements stricken. The Attorney General concedes this point, and we agree. The courts that have considered the issue have consistently concluded the amendments of Senate Bill No. 136 apply retroactively to cases not yet final on appeal. (People v. Winn (Jan. 30, 2020, H045157) 44 Cal.App.5th 859, 872; People v. Lopez (2019) 42 Cal.App.5th 337, 342 (Lopez); People v. Jennings (2019) 42 Cal.App.5th 664, 668; see In re Estrada (1965) 63 Cal.2d 740, 745 ["[w]hen the Legislature amends a statute so as to lessen the punishment . . . the new statute imposing the lighter penalty . . . should apply to every case to which it constitutionally could apply"].)
Although we agree the prison prior enhancements must be stricken, we note the trial court did not impose the maximum possible prison sentence. We therefore remand the matter so the trial court can exercise its sentencing discretion anew in light of the changed circumstances. (see Lopez, supra, 42 Cal.App.5th at p. 342 ["Because the trial court imposed the maximum possible sentence, there is no need for the court to again exercise its sentencing discretion"]; People v. Navarro (2007) 40 Cal.4th 668, 681 [when a sentence is struck in part, "a full resentencing as to all counts is appropriate so that the trial court can exercise its sentencing discretion in light of the changed circumstances"].
DISPOSITION
With respect to the conviction, the judgment is affirmed. As to the sentence, the judgment is reversed. On remand, the trial court shall strike the two prior prison term enhancements and resentence defendant in accordance with the views expressed in this opinion. The clerk of the superior court shall then prepare an amended abstract of judgment and forward a copy to the Department of Corrections and Rehabilitation.
/s/_________
TUCHER, J. WE CONCUR: /s/_________
POLLAK, P. J. /s/_________
STREETER, J.