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Name: People v. Solis
Case #: B262149
Court: CA Court of Appeal
District 2 DCA
Division: 3
Opinion Date: 03/23/2016
Subsequent History: Review granted 6/8/2016: S234150

Vehicle Code section 10851 is not an offense that is eligible for reduction under Proposition 47. In 2012 Solis pleaded guilty to driving or taking an automobile (Veh. Code, § 10851). In January 2015, Solis filed a Proposition 47 petition to reduce her felony conviction to a misdemeanor. The trial court found her conviction not eligible for reduction. Solis appealed. Held: Affirmed. In November 2014, Proposition 47 was passed. It reduced certain felony theft and drug offenses to misdemeanors. It added Penal Code section 1170.18, which provides a mechanism whereby qualified defendants may petition to reduce felony convictions to misdemeanors. It also added section 490.2, which redefines petty theft and reduces the punishment for defendants convicting of “obtaining property by theft” worth $950 or less. Any theft that is not defined as grand theft is petty theft (Pen. Code, § 488). However, a violation of Vehicle Code section 10851 does not require the intent to permanently deprive the owner of possession of his car; the section can be violated by illegally driving or taking a vehicle. It is therefore not a “theft” offense within the meaning of section 490.2 and is not eligible for reduction under 1170.18.

Defendants convicted of violating Vehicle Code section 10851 under a theft theory are nonetheless ineligible for Proposition 47 resentencing. Proposition 47 amended Penal Code section 666, petty theft with a prior, reducing the maximum sentence from three years to one year. Eligible predicates include prior convictions for petty theft, grand theft, auto theft under section 10851 of the Vehicle Code, as well as other offenses. Considering Proposition 47 as a whole, the words “petty theft” and “grand theft” must be given the same meaning in sections eight (adding Pen. Code, § 490.2) and 10 (amending Pen. Code, § 666). The fact that “auto theft” under Vehicle Code section 10851 was included alongside “petty theft” and “grand theft” in section 666, reflects the voters did not consider Vehicle Code section 10851 to be a variety of petty theft, otherwise, there would have been no need to designate it as a separate predicate in section 10 (amending Pen. Code, § 666).

The specific rule of Vehicle Code section 10851 is an exception to the general rule announced in Penal Code section 490.2, subdivision (a). It is settled law that a general provision is controlled by one that is special, and that the latter is treated as an exception to the former. Penal Code section 484 prohibits the felonious taking of personal property, of which cars are but one type. Vehicle Code section 10851 targets car-related offenses, whether driving or taking, specifically. Thus, even if section 10851 may be violated in a way that brings the conduct within Penal Code sections 484 and 490.2, the specific rule announced in section 10851 is an exception to the general rule provided in section 490.2, subdivision (a), and is excluded from Proposition 47 relief.

The full opinion is available on the court’s website here: