Proposition 47 does not preclude felony punishment for a Vehicle Code section 10851 conviction based on unlawfully driving a vehicle without the owner’s consent. Morales was using a white van that he did not own. He told a law enforcement officer that a man gave Morales the van to use because he was homeless, and that he was supposed to return the van in a few days. The business that owned the vehicle did not give Morales permission to drive it, did not even know the van was missing, and did not know how long the van was gone. The jury convicted Morales of felony unlawfully driving a vehicle without the owner’s consent (Veh. Code, § 10851) (the verdict form referenced only unlawful driving of the vehicle, not taking). On appeal, Morales argued several grounds why Proposition 47 should apply to reduce the conviction to a misdemeanor. Held: Affirmed on this point. When a defendant takes a vehicle without the owner’s consent, section 10851 may be violated in four different ways: (1) driving a vehicle with the intent to permanently deprive the owner; (2) driving a vehicle with the intent to temporarily deprive the owner; (3) taking a vehicle with the intent to permanently deprive the owner; and (4) taking a vehicle with the intent to temporarily deprive its owner. In People v. Page (2017) 3 Cal.5th 1175, the court concluded that the theft form of the section 10851 offense (taking a vehicle with the intent to permanently deprive the owner of possession) may qualify as a misdemeanor under Proposition 47 if the value of the vehicle is $950 or less (Pen. Code, § 490.2). After analyzing Page and relevant case law and statutes, the court concluded that Page does not preclude felony punishment for Morales’ section 10851 conviction, which was based on unlawful driving. There is a distinction between the theft and non-theft forms of section 10851 and driving a vehicle in violation of section 10851 is not a theft.
[Editor’s Note: In Page, the court 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. 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?]
Punishing the theft of a vehicle under Vehicle Code section 10851 less harshly than posttheft driving does not lead to absurd consequences. Morales argued that failing to apply Proposition 47 would lead to absurd consequence, including (1) “some defendants convicted of a less culpable act will still be subject to harsher felony sentences, while no one convicted of the most culpable act of stealing the vehicle ever will” and (2) that this disparity would provide an incentive for defendants to incriminate themselves and lie about criminal acts they did not commit by claiming to steal a vehicle they only drove. The Court of Appeal disagreed, concluding that driving a vehicle without consent is not necessarily a less serious offense. Theft is accomplished and comes to an end. Driving a vehicle without the owner’s consent, on the other hand, may be ongoing and repeated, multiplying the threat to public safety. As for incentive to lie, the Court of Appeal observed that, for a defendant who is willing to lie, the incentive to do so is not even unusual, much less absurd. “Those who testify under oath are required to tell the truth, regardless of any purported incentives.”
Imposition of harsher punishment for unlawfully driving a vehicle than for theft of the same vehicle does not violate equal protection. Morales also argued that it violates the equal protection clauses of the United States and California Constitutions to punish posttheft driving under section 10851 more harshly than stealing the same, low-value vehicle under the same statute. The Court of Appeal disagreed. To establish an equal protection claim, the defendant must show that the two classes receiving unequal treatment are similarly situated for purposes of the law challenged. Offenders who commit different crimes are generally not similarly situated. A defendant who violates section 10851 by taking a vehicle with the intent to permanently deprive its owner possession of it has committed theft. But other convictions under the statute are not theft offenses. As a result, the two classes are not similarly situated, and equal protection principles do not come into play.
The defendant was not denied due process by the trial court’s failure to instruct on the elements of theft by larceny or aiding and abetting. After noting that a conviction for aiding and abetting the theft of the vehicle would have carried a lesser sentence than his conviction for unlawfully driving it, Morales argued that he was deprived of a defense by virtue of the trial court’s failure to instruct the jury on the elements of theft by larceny and aiding and abetting. The Court of Appeal disagreed. A sua sponte instruction duty arises only if it appears that the defendant is relying on a defense triggering the need, or if there is substantial evidence supportive of a defense that is not inconsistent with the defendant’s theory of the case. Here, Morales asserted that he did not harbor the requisite intent under section 10851 (to deprive the owner of possession or ownership of the vehicle for any period of time). An instruction on the elements of theft by larceny or aiding and abetting would have been inconsistent with the theory of the defense. There was no sua sponte duty to so instruct.
The case must be remanded for the trial court to conduct a new hearing on the validity of prior strike allegations in light of People v. Gallardo (2017) 4 Cal.5th 120. The information in Morales’ case also alleged three prior felony convictions in Nevada for robbery and conspiracy to commit robbery. Morales waived a jury trial on the allegations and the trial court found two of the three prior strike allegations to be true. On appeal, he argued that the trial court violated his Sixth Amendment right to a jury trial by relying on an ambiguous record consisting of guilty pleas concerning robberies committed in Nevada. Morales relied on Gallardo, which was decided after the trial court found the strike allegations true and held that, while a trial court can determine the fact of a prior conviction without infringing on the defendant’s Sixth Amendment rights, it cannot determine disputed facts about what conduct likely gave rise to the conviction. Accepting the People’s concession, the Court of Appeal agreed and remanded the matter of the prior strike allegations to the trial court for a new determination in accordance with the opinion in Gallardo. Although Morales’ had requested resentencing pursuant to Penal Code section 1170, subdivision (h), without retrial of the prior strike allegations, the court concluded this remedy was inappropriate. The prosecution should be given the opportunity to demonstrate to the trial court, based on the record of the prior plea proceedings, that Morales’ guilty plea encompassed a relevant admission about the nature of his crime.
The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/A152525.PDF
