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Name: People v. Van Orden
Case #: E066432
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 03/23/2017
Subsequent History: Review granted 6/14/2017: S241574

Some convictions under Vehicle Code section 10851 (unlawful driving or taking a vehicle) are eligible for resentencing under Proposition 47 to misdemeanor petty theft (Pen. Code, § 490.2). In 1999 Van Orden pleaded guilty to felony unlawful taking or driving of a vehicle (Veh. Code, § 10851). After Proposition 47 passed, he filed a petition to reduce the conviction to misdemeanor petty theft. The trial court denied his petition, finding that section 10851 convictions were ineligible for reduction under Proposition 47. Van Orden appealed. Held: Reversed. Proposition 47 reduced a number of drug and theft offenses from felonies or wobblers to misdemeanors and added a mechanism (Pen. Code, § 1170.18) so that eligible individuals who had already been convicted of felonies for offenses that would have been misdemeanors had Proposition 47 been in effect at the time of the offenses could petition to have those offenses reduced to misdemeanors. Some convictions under 10851 qualify for resentencing to misdemeanor petty theft, which is defined as theft of any property worth $950 or less. (See Pen. Code, § 490.2.) In People v. Garza (2005) 35 Cal.4th 866, the court identified four different offenses proscribed by section 10851: pure theft (stealing a vehicle without driving it), pure driving (joyriding), driving theft (stealing a vehicle by driving it away), and posttheft driving (when there is substantial break between the taking and the subsequent driving). “Under Garza, pure theft and driving theft are ‘theft convictions.'” Accordingly, they fall within the definition of petty theft if the value of the vehicle is $950 or less. Here, Van Orden stole his ex-girlfriend’s $700 car and drove it to a reservoir where he left it. There was never a substantial break between the taking and the driving. Accordingly, Van Orden’s conviction under section 10851 was a theft offense and it is eligible for resentencing to misdemeanor petty theft. The superior court erred by concluding otherwise. [Editor’s Note: A similar issue is currently pending review in (People v. Page (2015) 241 Cal.App.4th 714, review granted 1/27/2016 (S230793/E062760).]

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