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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.

Updated: 4/11/2019

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