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california supreme court archives

This page archives cases decided in the California Supreme Court in the last 3 years. If a case is recently decided (within the last 6 months), it will reside in the Recently Decided cases. After 6 months it will archive here.

 

Areas of Constitutional Law
Updated: 4/4/2019 Double Jeopardy

Did the Court of Appeal err by holding that double jeopardy prevents retrial of defendant for first degree murder where the jury did not return a verdict on that offense and deadlocked on the lesser included offenses of second degree murder and voluntary manslaughter, because the trial court failed to afford the jury an opportunity to return a partial acquittal on the charge of first degree murder? (See Blueford v. Arkansas (2012) 566 U.S. ___ [132 S.Ct. 2044]; Stone v. Superior Court (1982) 31 Cal.3d 503.)

Held: Trial court's failure to receive verdict of partial acquittal on charged greater offense rendered its declaration of a mistrial without legal necessity, prohibiting retrial under Stone v. Superior Court (1982) 31 Cal.3d 503. At Aranda's murder trial the court instructed the jury on the charged first degree murder and the lesser included offenses (LIOs) of second degree murder and voluntary manslaughter. During deliberations, the jury foreperson told the court the jury had "ruled out" first degree murder but were divided on the LIOs. The trial court did not accept a not guilty verdict on first degree murder and declared a mistrial, though it later dismissed the first degree murder charge. The People appealed. The Court of Appeal affirmed. The California Supreme Court granted review. Held: Affirmed. The trial court is required to accept a partial verdict of acquittal as to a charged greater offense when the jury expressly indicates it has acquitted on that offense but has deadlocked on uncharged LIOs. Failure to do so will cause a declared mistrial to be without legal necessity, barring retrial. (Stone v. Superior Court.) The Stone rule has not been abrogated by Blueford v. Arkansas (2012) 566 U.S. 599, which held that federal double jeopardy principles do not require a trial court to accept a partial verdict. Stone's fairness rationale, based on California's general legislative preference for giving effect to unanimous jury verdicts, indicates that there is no reason to abandon the long-established precedent merely because it diverges with federal principles. Although the Fifth Amendment may not require the taking of partial verdicts, neither does it forbid the practice, and the Stone rule survives as an interpretation of the California Constitution's double jeopardy clause. Here, the record reflects the jury had "ruled out" first degree murder and was split on the LIOs and a not guilty verdict. The trial court's granting of a mistrial was premature and unsupported by legal necessity, barring retrial of first degree murder. (People v. Aranda (2019) 6 Cal.5th 1077 (S214116).) This case was decided 4/4/2019.

Areas of Constitutional Law
Updated: 8/24/2017 Prop. 66 Validity

Original proceeding. The court ordered respondents Jerry Brown, Governor of the State of California, Xavier Becerra, Attorney General of California, and the Judicial Council of California to show cause why the relief sought by petitioners should not be granted. This case presents issues regarding the validity of the Death Penalty Reform and Savings Act of 2016 (Prop. 66, Gen. Elec. (Nov. 8, 2016)).

Held: "In the November 2016 election California voters approved Proposition 66, the Death Penalty Reform and Savings Act of 2016. (Gen. Elec. (Nov. 8, 2016) 1.) The measure's various provisions are intended to facilitate the enforcement of judgments and achieve cost savings in capital cases. Petitioner Ron Briggs seeks writ relief from this court, challenging the constitutionality of certain aspects of the proposition. Governor Edmund G. Brown, Jr., Attorney General Xavier Becerra, and the Judicial Council of California oppose the petition as respondents. They are joined by intervener Californians to Mend, Not End, the Death Penalty, a campaign committee representing the proponents of the initiative. The issues raised are of sufficient public importance to justify the exercise of our original jurisdiction in the interest of a prompt resolution. (Legislature v. Eu (1991) 54 Cal.3d 492, 500 [286 Cal. Rptr. 283, 816 P.2d 1309].)

"Petitioner asserts four grounds for relief. He claims Proposition 66 (1) embraces more than one subject, as prohibited by the California Constitution; (2) interferes with the jurisdiction of California courts to hear original petitions for habeas corpus relief; (3) violates equal protection principles by treating capital prisoners differently from other prisoners with respect to successive habeas corpus petitions; and (4) runs afoul of the separation of powers doctrine by materially impairing the courts' ability to resolve capital appeals and habeas corpus petitions, and to manage their dockets in general.

"Petitioner's constitutional challenges do not warrant relief. However, we hold that in order to avoid serious separation of powers problems, provisions of Proposition 66 that appear to impose strict deadlines on the resolution of judicial proceedings must be deemed directive rather than mandatory." (Briggs v. Brown (2017) 3 Cal.5th 808 (S238309).) This case was decided on 8/24/2018.

Civil Commitments
Updated: 12/13/2018 Confidentiality of SVP Treatment Information

(1) Is an expert retained by the prosecution in a proceeding under the Sexually Violent Predator Act entitled to review otherwise confidential treatment information under Welfare and Institutions Case section 5328? (2) Is the district attorney entitled to review medical and psychological treatment records or is access limited to confidential treatment information contained in an updated mental evaluation conducted under Welfare and Institutions Code section 6603, subdivision (c)(1)?

On June 15, 2016, the court invited petitioner, the Orange County District Attorney, to file a supplemental letter brief addressing the following issues: (1) Would application of Welfare and Institutions Code section 6603, subdivision (j) (hereafter section 6603(j)) (added to the code by Stats. 2015, ch. 576, 1), to this case violate real party in interest Richard Anthony Smith's right to equal protection of the laws by treating him differently from mentally disordered offenders (see Pen. Code, 2960 et seq.) and mentally disordered sex offenders (see Welf. & Inst. Code, 6300 et seq.)? (2) Assuming no meritorious equal protection problem exists, can section 6603(j) be applied to this case despite the fact that the case arose before section 6603 was amended to add subdivision (j)? (3) Assuming no meritorious equal protection or retroactivity problem exists, is the disclosure authorized by section 6603(j) limited to medical and mental health treatment records used or relied upon in performing an updated evaluation under Welfare and Institutions Code section 6603, subdivision (c), or is disclosure also authorized for records underlying an initial or replacement evaluation? (4) Assuming no meritorious equal protection or retroactivity problem exists, inasmuch as section 6603(j) states the treatment records can be disclosed only to the "the attorney petitioning for commitment," and further provides "[t]he attorneys may use the records in proceedings under this article and shall not disclose them for any other purpose" (italics added), can the Orange County District Attorney share the disclosed the information with its hired expert witness?

Held: The district attorney prosecuting a civil commitment under the Sexually Violent Predator Act (SVPA) may access treatment records supporting an updated or replacement expert report about the individual's suitability for designation as an SVP. The prosecution filed a petition to commit Smith as an SVP. Attached to the petition were evaluations by two mental health experts designated by the State Department of State Hospitals (SDSH) to examine Smith. Later, the prosecutor requested an updated evaluation and a replacement evaluation, and an order permitting his expert to review the SDSH evaluations and medical records on which the evaluations were based. The trial court denied the request. The Court of Appeal directed the trial court to grant the motion. Smith's petition for review was granted. Held: Affirmed. The SVPA (Welf. & Inst. Code, 6600, et seq.) allows involuntary civil commitment of an offender who is found to be an SVP. Generally, mental health records are confidential, but there is an exception when mental health professionals evaluate an individual and agree the person qualifies as an SVP. When this occurs, copies of the evaluations and "supporting documents" are made available to the prosecution. (Welf. & Inst. Code, 6601, subd. (d), (h)(1).) Following a split of authority in the Courts of Appeal, the Legislature added subdivision (j) to section 6603, effective January 1, 2016, clarifying that the prosecution may have access to all the records that an evaluator reviews when performing an updated evaluation. Here, the court concluded that this includes records created prior to January 1, 2016. In addition, despite the language in subdivision (j) which only refers to access to records reviewed by an evaluator performing "an updated evaluation," this also includes access to records reviewed in replacement evaluations.

The prosecution may share access to relevant treatment records with its retained expert. Under Welfare and Institutions Code section 6603, attorneys for either side may use mental health records in SVP proceedings and shall not disclose them for any other purpose. This includes allowing a retained prosecution expert to review the records. Nothing in the text of the SVPA bars the government from sharing otherwise confidential information with its expert in an SVP proceeding. Nor would allowing such access conflict with section 5328, which makes confidential the information and records obtained in the course of providing services to an alleged SVP. Additionally, section 5328 does not limit the prosecution from sharing these records with a member of the prosecution team, provided an appropriate protective order is in place.

Smith failed to satisfy the required threshold for an equal protection claim because he did not made a credible showing of different treatment. Smith argued that section 6603, subdivision (j), which gives the prosecution significant access to the confidential therapy records of alleged SVPs, violates his right to equal protection because similar provisions do not apply to other recipients of mental health services, such as MDOs and MDSOs. But Smith did not identify in what way the statutory schemes associated with designation as either an MDO or MDSO operate differently from the SVPA with respect to discovery of these types of records. He therefore failed to make a credible showing of different treatment, which is the threshold showing required for an equal protection claim. (People v. Superior Court (Smith) (2018) 6 Cal.5th 457 (S225562).) This case was decided on 12/13/2018.

Crimes
Updated: 3/28/2019 Burglary Tools--Pliers

Did the Court of Appeal err in holding that a pair of pliers, which the defendant used to remove an anti-theft device from a pair of blue jeans in a department store, qualified as a burglary tool within the meaning of Penal Code section 466?

Held: Criminal liability for possession of burglary tools requires a showing the defendant intended to use the instrument or tool to break into or effectuate physical entry into a structure in order to commit theft or a felony within the structure. H.W. used a pair of pliers to remove an antitheft tag from jeans in a department store and left the store without paying for the jeans. A juvenile delinquency petition was filed alleging H.W. committed theft and possession of burglary tools (Pen. Code, 466). Following a contested jurisdictional hearing, the juvenile court sustained both allegations. On appeal, H.W. challenged the juvenile court's finding that he possessed a burglary tool within the meaning of section 466. The Court of Appeal affirmed. The California Supreme Court granted review to resolve a conflict in the Courts of Appeal. Held: Reversed. Section 466 prohibits possession of certain enumerated physical tools, including any "other instrument or tool," with the intent "feloniously to break or enter" into a building or vehicle. Applying rules of statutory construction, the court concluded section 466 includes an intent requirement focused specifically on commission of a felonious breaking or entry. "Coupled with the statute's list of tools that seem primarily capable of facilitating entry despite someone's effort to secure or limit access to a structure or other location referenced in the statute, the mention of breaking or entering in the context of section 466 seems most consistent with a reading that conditions criminal liability on a particular state of mind?intent to use an 'instrument or tool' to break or otherwise effectuate physical entry into a structure in order to commit theft or some other felony within the structure." Even if the pliers in H.W.'s possession qualify as an "other instrument or tool," H.W. lacked the intent required to establish criminal liability under section 466. There was no evidence H.W. intended to use the pliers to do anything other than remove the antitheft tag from the jeans. (In re H.W. (2019) 6 Cal.5th 1028 (S237415).) This case was decided on 3/28/2019.

Crimes
Updated: 12/27/2018 Deadly or Dangerous Weapons--Butter Knife

Can a butter knife with a rounded end and a serrated edge qualify as a deadly or dangerous weapon under Penal Code section 245, subdivision (a)(1)?

Held: Insufficient evidence supported juvenile court's finding that minor violated Penal Code section 245, subdivision (a)(1) because there was no substantial evidence the minor's use of a butter knife was likely to cause great bodily injury. The juvenile court found B.M. violated section 245, subdivision (a)(1) after she used a butter knife against her sister's legs, which were under a blanket. The Court of Appeal affirmed, finding B.M. could have inflicted great bodily injury (GBI) or committed mayhem upon her sister's face. Review was granted. Held: Reversed. Section 245, subdivision (a)(1) prohibits assaulting another person with a deadly weapon or instrument other than a firearm. An object alleged to be a deadly weapon must be used in a manner that is not only "capable of producing" but also "likely to produce death or great bodily injury." Although some objects are dangerous weapons as a matter of law, a knife is not. The court analyzed People v. Aguilar (1997) 16 Cal.4th 1023 and explained that the trier of fact may consider the following when determining whether an object is a deadly weapon based on how it is used: (1) the nature of the object and any damage done to the object; (2) the manner in which it is used; (3) what harm could have resulted based on how the object was actually used; (4) actual injury, or lack thereof, caused by the object; (5) the facts known to the aggressor before the assault, including defensive measures taken by the victim; and (6) all other relevant facts. A finding that a knife is likely to produce GBI requires more than a mere possibility that serious injury could have resulted from the way the object was used. Conjecture as to how the object could have been used is inappropriate. Here, even if B.M.'s use of the butter knife against her sister were capable of causing great bodily injury, the evidence was insufficient to show that it was likely to produce GBI or death. (In re B.M. (2018) 6 Cal.5th 530 (S242153).) This case was decided on 12/27/2018.

Crimes
Updated: 12/10/2018 Forgery--Determining Value of Uncashed Forged Check

For the purpose of the distinction between felony and misdemeanor forgery, is the value of an uncashed forged check the face value (or stated value) of the check or only the intrinsic value of the paper it is printed on?

Held: The value of a forged check is the amount written on the check. In July 2012, Franco was found in possession of a recently stolen check containing the owner's forged signature and made out in the amount of $1,500. Franco pleaded guilty to forgery (Pen. Code, 475, subd. (a)), and the court sentenced him to state prison but suspended the sentence and placed him on probation. In 2014, Franco violated probation and petitioned the court to resentence him as a misdemeanant under Proposition 47, arguing that the check's value was less than $950. The court denied the request and imposed the previously suspended prison sentence. Franco appealed, the Court of Appeal affirmed the judgment, and Franco petitioned for review. Held: Affirmed. Proposition 47 generally makes specified types of forgery misdemeanors if the "value" of the forged instrument does not exceed $950. (Pen. Code, 473, subd. (b).) Three possible tests were proposed in the lower courts for the value of a forged check: (1) the intrinsic value of the paper itself, (2) the amount written on the check, or (3) the market value, that is, the amount the defendant could obtain for the check (see People v. Lowery (2017) 8 Cal.App.5th 533, 541). In reviewing the language of Proposition 47 and the relevant forgery statutes, the court determined that it was the electorate's intent that the amount written on the forged check establishes its value. The amount written on the check is generally the best indicator of the extent of the intended fraud, and thus the severity of the crime. It is also a readily ascertainable amount. If the value of a forged check is never more than the intrinsic value of the paper, the language defining the $950 limit would be meaningless. In addition, attempting somehow to factor in the likelihood that the check will be cashed or other unspecified circumstances could only lead to uncertainty. The court disapproved Lowery to the extent it is inconsistent with the opinion in this case. (People v. Franco (2018) 6 Cal.5th 434 (S233973).) This case was decided on 12/10/2018.

Juvenile Delinquency - Dispositions / Conditions of Probation
Updated: 2/25/2019 Converting Restitution Order to Civil Judgment

(1) Did the juvenile court have the authority to convert a restitution order to a civil judgment at the completion of deferred entry of judgment? (2) Did the juvenile court err by ruling that restitution could be paid from federally-protected Social Security benefits?

Held: Where minor was granted deferred entry of judgment and successfully completely probation, juvenile court did not err in ordering conversion of unpaid restitution balance to a civil judgment. J.G. admitted allegations in a juvenile delinquency petition that he committed vandalism and trespassed and the juvenile court granted deferred entry of judgment (DEJ). Following hearings to address restitution, the juvenile court set the total amount of restitution at $36,381. The court later found J.G. successfully completed all terms of his probation other than payment of restitution, dismissed the petition, and converted the unpaid balance of restitution to a civil judgment. J.G. appealed, raising a number of issues related to the restitution award. The Court of Appeal affirmed and the California Supreme Court granted review. Held: Reversed and remanded. A minor granted DEJ may be required to pay restitution to the victim pursuant to the provisions of the Welfare and Institutions Code. (Welf. & Inst. Code, 794.) Two Welfare and Institutions Code provisions were relevant based on the facts of J.G.'s offense. The provisions require courts to order delinquent minors to pay restitution and mandate that the restitution order be enforceable as a civil judgement, including any balance unpaid at the termination of the court's jurisdiction over the minor. (Welf. & Inst. Code, 730.6 [general restitution statute], 742.16 [restitution statute for vandalism offenses].) J.G. argued that the provisions allowing civil conversion do not apply in the DEJ context and argued that these provisions conflict with Welfare and Institutions Code section 793, which permits the dismissal of the petition upon successful completion of DEJ, deems the arrest never to have occurred, and requires the records in the juvenile court to be sealed. After analyzing the relevant statutes, the court disagreed. "[N]otwithstanding the language of section 793, by providing in section 794 that minors granted [DEJ] may be required to pay restitution 'pursuant to'?i.e., in conformity with and according to?the provisions of the Welfare and Institutions Code, the Legislature expressly authorized unpaid restitution in the [DEJ] context to be converted to an enforceable civil judgment."

Although the juvenile court did not violate federal law by considering minor's SSI benefits in determining his ability to pay restitution, the matter was remanded for a new ability to pay hearing that includes consideration of other relevant factors in addition to the SSI benefits. At a hearing to determine J.G.'s ability to pay restitution, the court heard testimony that J.G. received over $700 a month in benefits from the federal Supplemental Security Income Program (SSI) for a disability. In determining that J.G. was able to pay restitution, the court only discussed the SSI benefits. On appeal, J.G. argued that the court violated federal law by considering his SSI benefits in determining his ability to pay restitution. The California Supreme Court disagreed. Social security benefits are not subject to execution, levy, attachment, garnishment, or other legal process. (42 U.S.C. 407, subd. (a).) After analyzing the federal statute and relevant case law, the court concluded that consideration of SSI benefits in determining the ability to pay restitution does not qualify as "other legal process" and that federal law does not preclude a court from considering SSI benefits in determining the ability to pay restitution. J.G. also argued the juvenile court erred by finding he had the ability to pay restitution based on his SSI benefits. The People conceded that the ability to pay determination would be improper if the juvenile court contemplated the SSI benefits as the source of the restitution payments, and the record indicated this was the basis for the juvenile court's decision. The juvenile court did not consider other relevant factors, including J.G.'s future earning capacity, his current financial circumstances, and the total amount of restitution ordered. The People also conceded the proper remedy would be to remand the matter for a new ability to pay hearing where the juvenile court could consider these factors. The court agreed with these concessions and reversed and remanded. (In re J.G. (2019) 6 Cal.5th 867 (S240397).) This case was decided on 2/25/2019.

Pretrial Motions
Updated: 12/24/2018 Prosecutor's Improper Dismissal of a Grand Juror

Was defendant denied a "substantial right" (People v. Standish (2006) 38 Cal.4th 858, 882) by the prosecutor's improper dismissal of a grand juror?

Held: A prosecutor's dismissal of a grand juror violates Penal Code section 939.5; only the grand jury foreperson may dismiss a grand juror. Avitia allegedly drove drunk, crashed into another car, and killed the other driver. The prosecution filed a complaint, and the trial court impaneled a 19-member grand jury. At a grand jury proceeding, the prosecutor asked if any juror would have difficulty being impartial. Juror Nos. 6 and 8 responded affirmatively. The prosecutor questioned each juror outside the presence of other grand jurors and excused Juror No. 18, who stated he could not be fair. After three days of proceedings, the grand jury returned an indictment on the charges presented. Avitia filed a nonstatutory motion to dismiss based on the prosecutor's dismissal of Juror No. 18. The trial court denied the motion. Avitia filed a petition for writ of mandate, which the Court of Appeal denied. Held: Affirmed. Penal Code sections 909 and 910 establish the procedures for selecting and dismissing grand jurors. During initial selection of the grand jury, the court may excuse a juror for lacking certain qualifications. After selection, Penal Code section 939.5 authorizes the foreperson of the grand jury to direct a biased juror to retire. While the prosecutor may provide information or advice, or make concerns known to the grand jury foreperson, no provision authorizes a prosecutor to dismiss a grand juror. Thus, the prosecutor's dismissal of Juror No. 18 exceeded his authority and violated Penal Code section 939.5.

When a prosecutor dismisses a grand jury member in violation of Penal Code section 939.5, the available remedy is dismissal of the indictment under Penal Code section 995, subdivision (a)(1)(A). Penal Code section 995, subdivision (a)(1)(A) provides that an indictment should be set aside when "it is not found, endorsed, and presented as prescribed in this code." This section allows a defendant to pursue a motion to set aside an indictment before trial where the defendant alleges that a prosecutor's violation of section 939.5 has prejudiced a "substantial right." In order to prevail on such a motion, the defendant must show that the error "reasonably might have had an adverse effect on the impartiality or independence of the grand jury." In Avitia's case, nothing in the record suggested the prosecutor was improperly involved in grand jury selection or the grand jury's decisionmaking process. Rather, the prosecutor dismissed a juror who indicated he could not be fair. Although the prosecutor "unquestionably influenced the composition of the grand jury" by excusing Juror No. 18, the dismissal occurred outside the presence of the grand jury, which "reduced the likelihood that the independence of the remaining grand jury was impaired." Other members of the jury had no reason to believe that the prosecutor, rather than the foreperson, excused Juror No. 18. Because Avitia did not show the error "reasonably might have affected the impartiality or independence of the grand jury in an adverse manner," the court affirmed the judgment. [Editor's Note: Justice Chin filed a concurring opinion.] (Avitia v. Superior Court (2018) 6 Cal.5th 486 (S242030).) This case was decided on 12/24/2018.

Right to Counsel
Updated: 3/28/2019 Appointed Counsel for Misdemeanant for People's Appeal

Is the Appellate Division of the Superior Court required to appoint counsel for an indigent defendant charged with a misdemeanor offense on an appeal by the prosecution?

Held: An indigent defendant respondent in a pretrial prosecution appeal is entitled to appointment of counsel. The trial court granted defendant's motion to suppress evidence (Pen. Code, 1538.5) in a misdemeanor case, and dismissed the underlying complaint. The People appealed to the appellate division of the trial court. The public defender asked the appellate division to appoint new counsel to represent defendant for the appeal. The appellate division concluded that a defendant respondent is not entitled to appointment of appellate counsel. The public defender filed a petition for writ of mandate in the appellate division asking the court to direct the superior court to appoint counsel for all indigent appellees in all misdemeanor criminal appeals. The appellate division denied the petition. Petitioner then sought a writ of mandate in the Court of Appeal, and the petition was ultimately denied. The California Supreme Court granted review. Held: Reversed and remanded. Although the parties had focused on the scope of the right to counsel under the Sixth Amendment, the court concluded California's Constitution, which also affords a right to the assistance of counsel for the defendant's defense in a criminal cause, was dispositive in this case. Under article I, section 15 of the California Constitution, a defendant's right to the assistance of counsel is not limited to trial, but instead extends to other critical stages of the criminal process. Here, the court concluded that a pretrial prosecution appeal of a suppression order is a critical stage of the prosecution at which the defendant has a right to appointed counsel. Unlike the federal constitutional right in nonfelony cases, which is limited to cases where there is a risk of imprisonment, article I, section 15 of the California Constitution confers a right to counsel in all felony and misdemeanor proceedings?regardless of whether the defendant faces imprisonment. The matter was remanded to the Court of Appeal to determine whether the appellate division must appoint a new attorney to represent defendant or whether the public defender was obligated to continue to represent the defendant in the appeal. [Editor's Note: Though not discussed in this opinion, People v. Bailey (1992) 9 Cal.App.4th 1252 concluded that there was an inherent conflict when appointed trial counsel in a criminal case is also appointed to act as counsel on appeal.] (Gardner v. Appellate Division of Superior Court (2019) 6 Cal.5th 998 (S246214).) This case was decided on 3/28/2019.

Sentencing
Updated: 4/11/2019 Prop.47--Direct Application Where Offense Occurred Before Prop. 47 Enacted, But Trial/Sentencing Occurred After Effective Date

On 3/21/2018, the Court ordered briefing in a previously held case on the following issue: Does Penal Code section 490.2, added by Proposition 47, effective November 5, 2014, apply directly (i.e., without a petition under Penal Code section 1170.18) in trial and sentencing proceedings held after Proposition 47's effective date, where the charged offense was allegedly committed before Proposition 47's effective date? (People v. Lara (July 19, 2017, E065029) [nonpub. opn.], review granted 9/27/2017 (S243975).)

Held: The ameliorative provisions of Proposition 47 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. Following a jury trial, Lara was convicted of a violation of Vehicle Code section 10851 based on evidence he drove a stolen car. On appeal, he argued that his felony section 10851 conviction must be reduced to a misdemeanor based on Penal Code section 490.2, which was added by Proposition 47. Lara's alleged offense occurred before Proposition 47 went into effect (Nov. 5, 2014), but his trial and sentencing occurred after this date. The Court of Appeal affirmed and the California Supreme Court granted review. Held: Affirmed. As a threshold issue, the court considered whether Proposition 47 applies directly (i.e., without a resentencing petition) in trial and sentencing proceedings held after its effective date when the charged offense was allegedly committed before Proposition 47's effective date. The court held that Proposition 47 does apply directly in these circumstances. In People v. DeHoyos (2018) 4 Cal.5th 594, the court held that Proposition 47's resentencing petition procedure (Pen. Code, 1170.18) supplies the exclusive means to relief on a current offense for defendants who were already serving their sentence on its effective date, even if their judgments were not yet final. In this case, Lara not yet been sentenced when Proposition 47 became effective. Applying the presumption of legislative intent of retroactivity for ameliorative statutes as set forth in In re Estrada (1965) 63 Cal.2d 740, the Supreme Court concluded that the recall petition process in section 1170.18, subdivision (a), expressly applies to one who, on November 5, 2014, was serving a sentence for an offense eligible for reduction. Because there was no mention of one who had not yet been sentenced, the court presumed under Estrada that the intent was that reduced penalties apply in this category of nonfinal cases.

Sufficient evidence supported defendant's felony section 10851 conviction. Lara argued the prosecution presented insufficient evidence to establish a felony violation of section 10851, as opposed to an offense rendered a misdemeanor by newly added section 490.2. The California Supreme Court disagreed. Section 10851 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. It can be violated by a range of conduct, only some of which constitutes theft. In People v. Page (2017) 3 Cal.5th 1175, 1188, the court held that Proposition 47 does apply to violations of section 10851 that are based on theft of a vehicle. "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 may be charged and sentenced as a felony regardless of value." The evidence in Lara's case amply supported a theory of posttheft driving. The evidence showed that defendant was apprehended driving the stolen car six or seven days after it was taken from its owner. "Whether or not he was involved in the theft?a point the prosecutor conceded was not proved at trial?the evidence clearly establishes a substantial break between the theft and defendant's act of unlawful driving." [Editor's Note: The court noted that in Page it left open the question of whether a violation of section 10851 committed by taking a vehicle with the intent only of depriving the owner temporarily of possession (sometimes referred to as joyriding) must be treated as the equivalent of vehicle theft for purposes of section 490.2. It did not address this issue in this case because the facts did not support such a theory. The court is currently considering this question in People v. Bullard (Dec. 12, 2016, E065918) [nonpub. opn.], review granted 2/22/2017 (S239488): Does equal protection or the avoidance of absurd consequences require that misdemeanor sentencing under Penal Code sections 490.2 and 1170.18 extend not only to those convicted of violating Vehicle Code section 10851 by theft, but also to those convicted for taking a vehicle without the intent to permanently deprive the owner of possession?]

Although the unlawful driving instruction was incomplete, the error was harmless beyond a reasonable doubt. The jury in this case was instructed only on an unlawful driving theory of the 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. Relying on People v. Gutierrez (2018) 20 Cal.App.5th 847, Lara argued that the trial court erred in instructing the jury on the section 10851 charge. In Gutierrez, the court reversed a felony section 10851 conviction 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. The court concluded that the instructions in Lara's case did not suffer from the same error. Here, the court's instruction?supported by the lawyers' arguments?focused exclusively on the nontheft variant of the section 10851 offense. However, the unlawful driving instruction was incomplete: While the instruction specified driving as the alleged illegal act, it did not refer expressly to posttheft driving. Taking the instruction in isolation, the jury could theoretically have understood guilt to be proved if Lara stole the vehicle by driving it away from where the owner had parked it. Based on the evidence in this case, though, the trial court's omission was harmless beyond a reasonable doubt. Lara was arrested driving the car six or seven days after it was stolen and there was no evidence that he drove the car while effectuating the theft. [Editor's Note: In a footnote, the Supreme Court pointed out that the issue of the correct harmlessness standard for instruction on alternative legal theories where one is correct and the other is incorrect is pending in People v. Aledamat (2018) 20 Cal.App.5th 1149, review granted 7/5/2018 (S248105/B282911).] (People v. Lara (2019) 6 Cal.5th 1128 (S243975).) This case was decided on 4/11/2019.

 

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