Opinion
B262149
07-02-2018
THE PEOPLE, Plaintiff and Respondent, v. ESMERALDA SOLIS, Defendant and Appellant.
Melissa L. Camacho-Cheung, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Noah P. Hill, Andrew S. Pruitt, Mary Sanchez, and Paul S. Thies, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. Los Angeles County Super. Ct. No. LA069964 APPEAL from a post-judgment order of the Superior Court of Los Angeles County, Michael V. Jesic, Judge. Affirmed with directions. Melissa L. Camacho-Cheung, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Noah P. Hill, Andrew S. Pruitt, Mary Sanchez, and Paul S. Thies, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
In 2015, defendant Esmeralda Solis appealed from the denial of her petition for recall and resentencing under Proposition 47, arguing that the initiative, which reduced the penalty for theft of property worth $950 or less, applied to her felony conviction for taking or driving a vehicle under Vehicle Code section 10851, subdivision (a). We concluded she was not convicted of a qualifying theft offense and affirmed. The Supreme Court granted review and has now transferred the case back to us for reconsideration in light of its decision in People v. Page (2017) 3 Cal.5th 1175 (Page).
We now conclude defendant may have been convicted of a qualifying offense. We therefore grant her requested relief and affirm without prejudice to defendant filing a new petition that establishes her eligibility for resentencing—or, given the passage of time, reclassification—under Proposition 47.
BACKGROUND
On March 15, 2012, defendant and three co-defendants were charged by information with grand theft auto, a felony (Pen. Code, § 487, subd. (d)(1); count 1); driving or taking a vehicle, a felony (Veh. Code, § 10851, subd. (a); count 2); and theft of identifying information, a misdemeanor (Pen. Code, § 530.5, subd. (c)(1); count 11). Counts 1 and 2 involved a 1993 Honda Accord. A co-defendant drove the car; defendant was one of three passengers.
The information charged four defendants, in a variety of configurations, with 18 counts. The co-defendants are not parties to this appeal.
At arraignment, defendant pled guilty to count 2, driving or taking a vehicle in violation of Vehicle Code section 10851, subdivision (a) (Section 10851), a felony. The trial court suspended imposition of sentence and placed her on formal probation for three years. The court required defendant to serve 180 days in county jail, awarded her 174 days local custody credit, and dismissed counts 1 and 11.
In January 2015, the Alternate Public Defender's office filed a petition to recall defendant's felony sentence and resentence her as a misdemeanant under Proposition 47. The petition contained no facts about the conviction, stating only that "the charged crime is now a misdemeanor." Counsel did not utilize CRIM 235, the superior court's approved form.
The court held a contested hearing on February 5, 2015. During the hearing, defense counsel represented that the Honda was "very, very old" and that defendant "was a passenger," but presented no other evidence. The prosecutor opposed defendant's petition on the ground that Section 10851 convictions are not eligible for reduction under Proposition 47. The court found as a matter of law that Section 10851 convictions are not reducible under Proposition 47, and denied the petition without prejudice; the court did not make any factual findings about the nature of the Section 10851 violation or the value of the car.
Defendant filed a timely notice of appeal, and on March 23, 2016, we affirmed by published opinion in People v. Solis (2016) 245 Cal.App.4th 1099, concluding that Section 10851 was not a reducible offense under Proposition 47. The Supreme Court granted review, and on March 21, 2018, the Court transferred the matter to us for reconsideration in light of Page, supra, 3 Cal.5th at p. 1175.
DISCUSSION
Defendant contends that under Page, Penal Code section 490.2 (Section 490.2), which reduced the penalty for "obtaining any property by theft where the value of the ... property taken does not exceed nine hundred fifty dollars ($950)," applies to at least some convictions for taking or driving a vehicle under Section 10851. We agree.
1. Proposition 47
On November 4, 2014, California voters approved Proposition 47, the Safe Neighborhoods and Schools Act. (Prop. 47, as approved by voters, Gen. Elec. (Nov. 4, 2014).) The initiative aimed to "ensure that prison spending is focused on violent and serious offenses, to maximize alternatives for nonserious, nonviolent crime, and to invest the savings generated from" the Act in elementary and high school programs, victims' services, and mental health and drug treatment. (Ballot Pamp., Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 2, p. 70.)
Proposition 47 targeted these goals in four ways: (1) it amended the Penal Code and Health and Safety Code to reduce certain property crimes and possessory drug offenses from felonies or wobblers to misdemeanors; (2) it allowed people serving felony sentences for newly-reduced offenses to ask the court to resentence them as misdemeanants (Pen. Code, § 1170.18, subds. (a), (b)); (3) it allowed people who had finished serving a qualified felony sentence to ask the court to reclassify the conviction as a misdemeanor (Pen. Code, § 1170.18, subds. (f)-(h)); and (4) it created a Safe Neighborhoods and Schools Fund to be financed with savings generated by the changes to the sentencing laws (Gov. Code, § 7599 et seq.). (Ballot Pamp., supra, text of Prop. 47, § 3, p. 70.)
As the Legislative Analyst explained, "some crimes ... can be charged as either a felony or a misdemeanor. These crimes are known as 'wobblers.' Courts decide how to charge wobbler crimes based on the details of the crime and the criminal history of the offender." (Ballot Pamp., supra, analysis of Prop. 47 by Legis. Analyst, p. 35.)
As relevant to the present case, though Proposition 47 purported to reduce the penalties for grand theft, it did not directly amend any substantive theft statute. (Ballot Pamp., supra, analysis of Prop. 47 by Legis. Analyst, p. 35 ["Specifically, the measure reduces the penalties for the following crimes: [¶] Grand Theft."].) Instead, the initiative added a new provision to the Penal Code chapter dealing with theft. (§ 490.2; see Pen. Code, § 484 et seq.) The new provision provides, "Notwithstanding Section 487 or any other provision of law defining grand theft, 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) shall be considered petty theft and shall be punished as a misdemeanor" unless the defendant has been convicted of a specified violent or serious crime. (§ 490.2.)
Under Penal Code section 1170.18, a defendant currently serving a felony sentence for a crime that would have been a misdemeanor under Proposition 47 may petition for resentencing in accordance with the provisions of the Act, including Section 490.2. (Pen. Code, § 1170, subds. (a)-(b).) In Page, the Supreme Court concluded that Section 490.2 applies to some—but not all—felony convictions under Section 10851. (Page, supra, 3 Cal.5th at pp. 1187-1188.) To explain why, we review the intersection of Section 10851 and a typical theft offense.
2. Obtaining Property by Theft
As enacted by Proposition 47, Section 490.2 neither redefines nor establishes a substantive theft offense. Instead, "theft" is defined in Penal Code section 484, subdivision (a), which provides: "Every person who shall feloniously steal, take, carry, lead, or drive away the personal property of another, or who shall fraudulently appropriate property which has been entrusted to him or her, or who shall knowingly and designedly, by any false or fraudulent representation or pretense, defraud any other person of money, labor or real or personal property, or who causes or procures others to report falsely of his or her wealth or mercantile character and by thus imposing upon any person, obtains credit and thereby fraudulently gets or obtains possession of money, or property or obtains the labor or service of another, is guilty of theft." (See People v. Davis (1998) 19 Cal.4th 301, 304-305 [Pen. Code, § 484 consolidates several formerly distinct offenses into the single crime of theft, including larceny and theft by trick].) Penal Code section 490a, in turn, provides that any law referring to larceny, embezzlement, or stealing is a theft offense. (Pen. Code, § 490a.)
The statute's reference to various "felonious[ ]" takings imports the common law's specific intent requirement into Penal Code section 484's designations of these takings as thefts. (People v. Avery (2002) 27 Cal.4th 49, 55, 58.) To steal or "obtain[ ] property by theft," a defendant must take the property with the specific intent "to permanently deprive the owner of possession." (People v. Davis, supra, 19 Cal.4th at p. 305; Avery, at p. 54 ["California courts have long held that theft by larceny requires the intent to permanently deprive the owner of possession of the property."].) Without "a specific intent to steal, i.e., an intent to deprive an owner permanently of his property," "[t]he taking of property is not theft[.]" (People v. Butler (1967) 65 Cal.2d 569, 572-573, overruled on other grounds by People v. Tufunga (1999) 21 Cal.4th 935, 956; see People v. Matlock (1959) 51 Cal.2d 682, 694 ["It is elementary that the taking of property is not theft in the absence of an intent to steal."].)
Every theft offense is either grand theft or petty theft—and the punishment options depend on the degree of the crime. (Pen. Code, § 486.) Currently, a defendant commits grand theft, a wobbler, "[w]hen the money, labor, or real or personal property taken" exceeds $950. (Pen. Code, § 487, subd. (a).) Before the passage of Proposition 47, however, not all theft crimes were subject to the $951 grand-theft minimum. Theft of some property became grand theft at a lower value threshold. For example, a defendant only had to steal $250 worth of "domestic fowls, avocados, olives, citrus," or other produce to be guilty of grand theft. (Id., subd. (b)(1); see id., subd. (b)(2) [$250 worth of aquacultural products from a commercial or research operation].)
And theft of other types of property was deemed grand theft regardless of value. For example, every theft of a "hog, sow, boar, gilt, barrow, or pig" was designated grand theft (Pen. Code, § 487a), as was theft of "gold dust, amalgam, or quicksilver" from "any mining claim, tunnel, sluice, undercurrent, riffle box, or sulfurate machine" (Pen. Code, § 487d). (See People v. Whitmer (2014) 230 Cal.App.4th 906, 918 ["It is well established that the Legislature's intent regarding this provision was to designate theft of the enumerated items as grand theft regardless of their value."].)
Any theft not defined as grand theft is petty theft, a misdemeanor (Pen. Code, § 488)—and Section 490.2 redefines petty theft. As discussed, Section 490.2 reduces the possible punishment for defendants convicted of "obtaining property by theft" worth $950 or less. The statute provides: "Notwithstanding Section 487 or any other provision of law defining grand theft, obtaining any property by theft" worth $950 or less "shall be considered petty theft and shall be punished as a misdemeanor."
The first clause—"Notwithstanding Section 487 or any other provision of law defining grand theft"—is a nonrestrictive phrase, set off with a comma; the rest of the sentence is an independent clause. (See Garner, Garner's Dictionary of Legal Usage (3d ed. 2011) pp. 782, 888-889 [restrictive and nonrestrictive clauses].) Because the nonrestrictive phrase does not limit the rest of the sentence, the plain language of Section 490.2 stands on its own. (Page, supra, 3 Cal.5th at p. 1186.) It provides, "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) shall be considered petty theft and shall be punished as a misdemeanor." (§ 490.2, subd. (a).) On its face, therefore, Section 490.2 reclassifies the array of criminal behavior described in the theft statutes as petty theft whenever the stolen property is worth less than $951. (Page, at pp. 1183-1184, 1186-1187.)
3. Section 10851 can be a theft offense.
Applying these principles to the issue before us, to convict a defendant of either grand theft or petty theft of an automobile, the prosecution must prove the defendant intended to deprive the owner of possession of his car permanently. (Pen. Code, § 484.) A violation of Section 10851, on the other hand, does not require this intent. Indeed, the main difference between the two offenses is the required mens rea—the gravamen of a theft crime.
A violation of Section 10851, subdivision (a), requires proof of the following elements:
1. The defendant took or drove someone else's vehicle;Section 10851 "proscribes a wide range of conduct." (People v. Jaramillo (1976) 16 Cal.3d 752, 757.) A "person can violate that section by driving or taking a vehicle. The acts constituting driving a vehicle and taking a vehicle are separate and distinct." (People v. Barrick (1982) 33 Cal.3d 115, 135.)
2. The owner did not consent to the taking or driving; and
3. The defendant intended to deprive the owner of possession or ownership for any period.
In this context, "taking" is not a synonym for stealing; it is a legal term of art describing one element of theft by larceny. (People v. Gomez (2008) 43 Cal.4th 249, 255.) Taking "has two aspects: (1) achieving possession of the property, known as 'caption,' and (2) carrying the property away, or 'asportation.' " (Ibid.) Therefore, if a defendant takes or drives a vehicle with the intent to deprive the owner of possession temporarily, he has not committed theft. (People v. Garza (2005) 35 Cal.4th 866, 871; People v. Barrick, supra, 33 Cal.3d at p. 135.) On the other hand, if he takes or drives the vehicle with the intent to deprive the owner of possession permanently—that is, with the intent to steal it—he has committed a theft offense. (Garza, at pp. 871, 876, 878-879, 880-881.) Put another way, every car thief necessarily violates Section 10851, but a defendant who takes or drives a vehicle is not necessarily a car thief. (Ibid.)
As discussed, Section 490.2 indisputably applies only to theft offenses. Because driving or taking a vehicle with the intent to deprive the owner of temporary possession is not theft, the Supreme Court held in Page that defendants convicted of this form of Section 10851 are ineligible for resentencing under Proposition 47. (Page, supra, 3 Cal.5th at p. 1187.) On the other hand, the Court held, defendants convicted of Section 10851 under a theft theory are eligible for resentencing. (Page, at pp. 1186-1188.) As such, the court below erred when it concluded defendant was ineligible for resentencing as a matter of law.
The Supreme Court did not decide "whether equal protection or the avoidance of absurd consequences requires that misdemeanor sentencing under section 490.2 and 1170.18 extend not only to those convicted of theft under [Section] 10851, but also to those convicted for taking a vehicle without the intent to permanently deprive the owner of possession." (Page, supra, 3 Cal.5th at p. 1188, fn. 5.) Those issues are not before us here.
4. Remedy
Defendant does not ask us to reverse the court's ruling, however. Instead, she concedes that her petition failed to make a prima facie eligibility showing and asks us to "deny her petition without prejudice to a consideration of a new petition, presenting facts in support of her eligibility." The People nevertheless urge us to affirm with prejudice because defendant's conviction was based on post-theft driving separate and distinct from the vehicle theft. We disagree with the People.
Because we accept defendant's concession, we need not decide whether her petition would have been sufficient to warrant an evidentiary hearing.
First, the court offered no opinion on that question below and should be afforded the opportunity to do so. Second, as defendant was originally charged with grand theft auto as well as driving or taking a vehicle under Section 10851, the prosecution apparently believed the evidence was sufficient to prove the mental state necessary for theft. As such, defendant may well be able to establish in a future proceeding that her conviction was based on theft. We therefore grant defendant's requested relief.
DISPOSITION
The order denying defendant's petition is affirmed without prejudice to consideration of a new application or petition providing evidence of her eligibility for resentencing or reclassification under Proposition 47.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, Acting P. J. WE CONCUR:
EGERTON, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------