IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
HENRY ARSENIO LARA II,
Defendant and Appellant.
S243975
Fourth Appellate District, Division Two
E065029
Riverside County Superior Court
INF1302723
April 11, 2019
Justice Kruger authored the opinion of the court, in which
Chief Justice Cantil-Sakauye and Justices Chin, Corrigan, Liu,
Cuéllar, and Groban concurred.
PEOPLE v. LARA
S243975
Opinion of the Court by Kruger, J.
This is another case in a series concerning the proper
interpretation of Proposition 47 (“the Safe Neighborhoods and
Schools Act”), the 2014 ballot initiative that reduced certain
felony offenses to misdemeanors. In addition to prospectively
reducing the penalty for these offenses, Proposition 47 also
permitted eligible defendants who were serving felony
sentences as of the measure’s effective date to retroactively
obtain relief by petitioning for recall of sentence and
requesting resentencing. (Pen. Code, § 1170.18, subd. (a), as
amended by Stats. 2016, ch. 767, § 1, p. 5313.) This
resentencing provision is, however, more restrictive than
initial sentencing under the statute would be; among other
things, Penal Code section 1170.18 (section 1170.18) instructs
that relief be denied if the trial court determines that
resentencing the defendant “would pose an unreasonable risk
of danger to public safety.” (§ 1170.18, subd. (b).
The differences between initial sentencing under
Proposition 47’s amended penalty provisions and resentencing
under section 1170.18’s petition procedure have led to
questions about which set of provisions apply to various classes
of defendants. In People v. DeHoyos (2018) 4 Cal.5th 594, 600–
603 (DeHoyos), we concluded that section 1170.18 supplies the
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Opinion of the Court by Kruger, J.
exclusive path to relief on a current offense under Proposition
47 for defendants who were serving felony sentences as of the
measure’s effective date, including those whose judgments
were on appeal and thus not yet final. The question now
before us concerns the application of Proposition 47 to
defendants who committed their crimes before the measure’s
effective date but who were tried or sentenced after that date.
Our answer follows directly from DeHoyos: Defendants who
had not yet been sentenced as of Proposition 47’s effective date
are entitled to initial sentencing under Proposition 47’s
amended penalty provisions, without regard to the
resentencing procedures applicable to those who were already
serving their sentences.
I.
On August 15, 2013, defendant Henry Arsenio Lara II
was found driving a stolen 2000 Honda Civic. In January
2015, he was charged by information with unlawfully taking or
driving a vehicle (Veh. Code, § 10851, subd. (a)) and receiving
the same stolen vehicle (Pen. Code, § 496d, subd. (a)), both
alternative felony-misdemeanors (also known as wobblers (see
People v. Park (2013) 56 Cal.4th 782, 789)). Evidence at trial
showed the vehicle was taken from in front of the owner’s
house on August 8 or 9, 2013. On August 14, police found the
vehicle parked at a mobile home park known as a dumping
ground for stolen vehicles. The vehicle was kept under
surveillance and, on August 15, was seen being driven in the
same area. Police stopped the car and arrested defendant, the
driver and only occupant. The car had a broken window and
was missing its rims. The ignition had been tampered with,
allowing the car to be started with keys for other vehicles, two
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Opinion of the Court by Kruger, J.
of which were found on the floorboard. No evidence was
presented directly implicating defendant in the vehicle’s theft.
Although the information alleged that defendant violated
Vehicle Code section 10851 in that he “did willfully and
unlawfully drive and take” the Honda Civic, the court
instructed the jury only on an unlawful driving theory of
liability. Specifically, it instructed that, in order to convict, the
jury had to find that defendant drove someone else’s vehicle
without the owner’s consent and with the intent to deprive the
owner of possession or ownership for a period of time.
Consistent with that instruction, the prosecutor argued only an
unlawful driving theory to the jury. She explained that the
section 10851 charge “requires that I prove to you that the
defendant drove a vehicle without the owner’s consent, and
that’s real easy.” Later she emphasized that “[t]he question in
this case is not who stole the car originally.” There was some
circumstantial evidence defendant may have taken the car, she
argued, but “[w]e don’t know. But that’s okay that we don’t
know because that’s not the question here. . . . [¶] The
question that you have to answer [is] was he driving it without
the owner’s consent . . . .” On rebuttal, she again disavowed a
theft theory, conceding the evidence defendant stole the car
was “not enough to convict him beyond a reasonable doubt.”
The jury returned a verdict finding defendant guilty of
“driving a vehicle without permission, as charged under count
1 of the information.” Consistent with the court’s instruction
that receiving a stolen vehicle was an alternative charge to
unlawful taking or driving, the jury acquitted on the receiving
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Opinion of the Court by Kruger, J.
charge.1 The court sentenced defendant to three years of
imprisonment for violation of Vehicle Code section 10851.
With sentence enhancements for prior convictions and prior
prison terms (Pen. Code, §§ 666.5, subd. (a), 667.5, subd. (b)),
defendant’s aggregate prison sentence was 10 years.
On appeal, defendant for the first time invoked
Proposition 47. After it was approved at the November 2014
General Election, the ballot measure took effect on November
5, 2014—that is, after defendant committed his offense but
before he was charged, tried, or sentenced. As relevant here,
Proposition 47 added Penal Code section 490.2, subdivision (a),
providing in part: “Notwithstanding Section 487 or any other
provision of law defining grand theft, obtaining any property
by theft where the value of the money, labor, real or personal
property taken does not exceed nine hundred fifty dollars
($950) shall be considered petty theft and shall be punished as
a misdemeanor . . . .”2
1
Defendant may have benefited from an incorrect
instruction in this respect. Under People v. Garza (2005) 35
Cal.4th 866, 881, dual convictions for receiving and taking or
driving the same vehicle are not barred when the Vehicle Code
section 10851 conviction is based solely on driving the vehicle
after the theft was complete.
2
While reclassifying most thefts of property worth $950 or
less as misdemeanors, the statute provides for felony
punishment if the defendant has prior convictions for any of
certain serious or violent offenses listed in Penal Code section
667, subdivision (e)(2)(C)(iv) or for an offense requiring
registration as a sex offender. (Pen. Code, § 490.2, subd. (a).
Neither exception applies here.
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Opinion of the Court by Kruger, J.
On appeal, defendant argued that his felony Vehicle Code
section 10851 conviction must be reduced to a misdemeanor
under this newly added Penal Code provision. Defendant
contended that Penal Code section 490.2 applies because a
section 10851 violation is a theft crime and the jury was never
instructed to find, and therefore never found, that the value of
the Honda Civic exceeded $950.
Rejecting the argument, the Court of Appeal affirmed
defendant’s felony conviction and sentence. The majority
concluded that Proposition 47 has no application to a violation
of Vehicle Code section 10851. Justice Slough, in a separate
concurring opinion, concluded that Proposition 47 does apply to
a Vehicle Code section 10851 violation, provided that the
violation is based on theft. But because defendant’s violation
was instead based on unlawful driving of a vehicle, Justice
Slough joined the majority in affirming the judgment.
We granted defendant’s petition for review and held the
case for People v. Page (2017) 3 Cal.5th 1175 (Page). In that
case, we held that Proposition 47 does apply to violations of
Vehicle Code section 10851 that are based on theft of a vehicle.
But the procedural history of this case raises another threshold
question not addressed in Page: Is a defendant who had not
yet been sentenced when Proposition 47 took effect entitled to
initial sentencing under the measure? Or must he or she
instead be sentenced under pre-Proposition 47 law—subject to
his or her ability to later file a petition for resentencing under
section 1170.18? That section provides resentencing relief to
one “who, on November 5, 2014, was serving a sentence” for an
offense eligible for reduction (section 1170.18, subd. (a)), as
well as providing for redesignation of the conviction as a
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Opinion of the Court by Kruger, J.
misdemeanor for one “who has completed his or her sentence
for a conviction” for such an eligible offense (id., subd. (f)).
To address this issue, after Page was decided we asked
the parties to brief the following question: Does Penal Code
section 490.2, added by Proposition 47, effective November 5,
2014, apply directly (i.e., without a petition under Penal Code,
§ 1170.18) in trial and sentencing proceedings held after
Proposition 47’s effective date, when the charged offense was
allegedly committed before Proposition 47’s effective date?
II.
In their responsive briefing, defendant and the Attorney
General agree that defendants who committed theft crimes
before the effective date of Proposition 47, but who are tried or
sentenced after the measure’s effective date, are entitled to
initial sentencing under Proposition 47, and need not invoke
the resentencing procedure set out in section 1170.18. We
agree as well.
When a new statute decreases the prescribed punishment
for criminal conduct, as did Proposition 47, whether the change
applies to preenactment conduct is a matter of legislative
intent. (In re Estrada (1965) 63 Cal.2d 740, 744.) We
articulated the basic framework for discerning that intent in
Estrada. In that case, we held that when the Legislature
enacts a law ameliorating punishment without including an
express savings clause or a similar indicator of its intent to
apply the law prospectively only, we infer an intent “that the
new statute imposing the new lighter penalty now deemed to
be sufficient should apply to every case to which it
constitutionally could apply.” (Id. at p. 745.) In this category
we included cases in which the criminal act was committed
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Opinion of the Court by Kruger, J.
before the statute’s passage, so long as the judgment is not yet
final. (Ibid.) Thus, under Estrada, “ ‘[A]n amendatory statute
lessening punishment is presumed to apply in all cases not yet
reduced to final judgment as of the amendatory statute’s
effective date’ [citations], unless the enacting body ‘clearly
signals its intent to make the amendment prospective, by the
inclusion of either an express saving clause or its equivalent’
[citations].” (DeHoyos, supra, 4 Cal.5th at p. 600; see also
People v. Nasalga (1996) 12 Cal.4th 784, 791–794.
In DeHoyos, we employed this framework to determine
whether Proposition 47’s amended penalty provisions apply
automatically—that is, without need for a resentencing
petition under section 1170.18—to defendants who were
serving felony sentences as of Proposition 47’s effective date
but whose sentences had not yet become final on appeal.
Proposition 47, we noted, is not silent on the question of
retroactivity, as was the case in Estrada; rather, Proposition
47 “contains a detailed set of provisions designed to extend the
statute’s benefits retroactively. [Citation.] Those provisions
include, as relevant here, a recall and resentencing mechanism
for individuals who were ‘serving a sentence’ for a covered
offense as of Proposition 47’s effective date. (§ 1170.18, subd.
(a).)” (DeHoyos, supra, 4 Cal.5th at p. 603.) The measure’s
resentencing provision, we observed, “draws no express
distinction between persons serving final sentences and those
serving nonfinal sentences, instead entitling both categories of
prisoners to petition courts for recall of sentence.” (Ibid.) And
that provision, section 1170.18, “expressly makes resentencing
dependent on a court’s assessment of the likelihood that a
defendant’s early release will pose a risk to public safety,
undermining the idea that voters ‘categorically determined
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Opinion of the Court by Kruger, J.
that “imposition of a lesser punishment” will in all cases
“sufficiently serve the public interest.” ’ ” (DeHoyos, at p. 603.
These provisions, together with statements in the Voter
Information Guide, showed “an intent to apply the provisions
of section 1170.18, including its risk assessment provision, to
all previously sentenced defendants who had not yet completed
their sentences, and not just to those whose judgments had
become final on direct review.” (DeHoyos, at p. 603.
As the parties before us agree, the same reasoning leads to
a different answer here. Unlike the defendant in DeHoyos,
defendant here had not been sentenced—indeed, he had not
yet been charged—when Proposition 47 became effective. By
its terms, then, the resentencing provision in section 1170.18
does not apply to him. Proposition 47 provides resentencing
relief to one “who, on November 5, 2014, was serving a
sentence” for an offense eligible for reduction (§ 1170.18, subd.
(a)), but it does not expressly address reduction of punishment
for a defendant who had not yet been sentenced on its effective
date. On the contrary, Proposition 47’s resentencing provisions
are simply silent on the subject of retroactivity as to such a
defendant. In the absence of contrary indications, we may
therefore presume under Estrada that the enacting body
intended Proposition 47’s reduced penalties to apply in this
category of nonfinal cases.
We therefore agree with the parties that the applicable
ameliorative provisions of Proposition 47 (here, Penal Code
section 490.2) 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.
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Opinion of the Court by Kruger, J.
III.
Because defendant had not yet been sentenced at the time
Proposition 47 became effective, its ameliorative provisions
apply. The question remains whether they make a difference
in defendant’s case. Defendant argues they do, for two
reasons: First, he claims, the prosecution presented
insufficient evidence to establish a felony violation of Vehicle
Code section 10851, as opposed to an offense rendered a
misdemeanor by newly added Penal Code section 490.2.
Second, he contends, the trial court erred in instructing the
jury on the Vehicle Code section 10851 charge. We consider
each claim in turn, and conclude neither claim has merit.
A.
Proposition 47 did not reduce to misdemeanors all
violations of Vehicle Code section 10851. That statute, which
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, can be violated by a
range of conduct, only some of which constitutes theft. And
only theft-based violations fall within Penal Code section
490.2, making them misdemeanors unless the vehicle stolen
was worth more than $950. (Page, supra, 3 Cal.5th at
pp. 1182–1183.
As we explained in Page, we had recognized the distinction
between the theft and nontheft forms of the Vehicle Code
section 10851 offense long before Proposition 47 was enacted.
In People v. Garza, supra, 35 Cal.4th 866, “we considered
whether dual convictions under Vehicle Code section 10851
and Penal Code section 496, subdivision (a) (receiving stolen
property) violated the statutory rule against convicting a
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Opinion of the Court by Kruger, J.
person for both stealing and receiving the same property. We
concluded the answer depended on the basis for the Vehicle
Code section 10851 conviction—whether it was for stealing the
automobile or for taking or driving it in another prohibited
manner: ‘Unlawfully taking a vehicle with the intent to
permanently deprive the owner of possession is a form of theft,
and the taking may be accomplished by driving the vehicle
away. For this reason, a defendant convicted under section
10851(a) of unlawfully taking a vehicle with the intent to
permanently deprive the owner of possession has suffered a
theft conviction and may not also be convicted under section
496(a) of receiving the same vehicle as stolen property. On the
other hand, unlawful driving of a vehicle is not a form of theft
when the driving occurs or continues after the theft is
complete . . . . Therefore, a conviction under section 10851(a
for posttheft driving is not a theft conviction . . . .’ (Garza, at
p. 871, italics omitted.)” (Page, supra, 3 Cal.5th at p. 1183.
In Page, we shed further light on the distinction between
vehicle theft and posttheft driving as forms of the Vehicle Code
section 10851 offense: “Posttheft driving in violation of Vehicle
Code section 10851 consists of driving a vehicle without the
owner’s consent after the vehicle has been stolen, with the
intent to temporarily or permanently deprive the owner of title
or possession. Where the evidence shows a ‘substantial break’
between the taking and the driving, posttheft driving may give
rise to a conviction under Vehicle Code section 10851 distinct
from any liability for vehicle theft.” (Page, supra, 3 Cal.5th at
p. 1188, quoting People v. Kehoe (1949) 33 Cal.2d 711, 715.
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
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Opinion of the Court by Kruger, J.
driving may be charged and sentenced as a felony regardless of
value.3
With this understanding of the relationship between Penal
Code section 490.2 and Vehicle Code section 10851, defendant’s
contention that the evidence at trial was insufficient to support
a felony conviction of Vehicle Code section 10851 is easily
rejected. Although no evidence was presented of the vehicle’s
value, the evidence amply supported a theory of posttheft
driving, which does not require proof of vehicle value in order
to be treated as a felony. 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. (See
People v. Strong (1994) 30 Cal.App.4th 366, 375 [four days
between theft and driving].) Defendant did not have the
owner’s consent to drive the vehicle and the circumstances
indicated he intended to keep the car from the owner for some
period of time. The evidence was thus sufficient to show a
felony violation of Vehicle Code section 10851.
3
In Page, we left for another day the question of whether a
violation of Vehicle Code 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 Penal
Code section 490.2. (Page, supra, 3 Cal.5th at p. 1188, fn. 5.
As the facts of this case would not support such a theory, we
leave that question unaddressed here as well.
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Opinion of the Court by Kruger, J.
B.
We next consider defendant’s claim of instructional error.
We find no reversible error on that score, either.
As noted earlier, the jury in this case was instructed only
on an unlawful driving theory of the Vehicle Code 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; it allowed
the jury to find defendant guilty only of driving a vehicle
without permission.
Defendant argues that the instruction was insufficient,
relying on People v. Gutierrez (2018) 20 Cal.App.5th 847
(Gutierrez). In that case, the court reversed a felony conviction
under Vehicle Code section 10851 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. (Gutierrez, at
pp. 856–857.
The instruction here did not suffer from the same error,
however. As the Court of Appeal explained in Gutierrez, the
instructions in that case “allowed the jury to convict Gutierrez
of a felony violation of [Vehicle Code] section 10851 for
stealing the rental car, even though no value was proved—a
legally incorrect theory—or for a nontheft taking or driving
offense—a legally correct one.” (Gutierrez, supra, 20
Cal.App.5th at p. 857.) On the record before it, the appellate
court could not determine which theory the jury had based its
verdict on; the court concluded this uncertainty required
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PEOPLE v. LARA
Opinion of the Court by Kruger, J.
reversal. (Ibid.; accord, People v. Jackson (2018) 26
Cal.App.5th 371, 378–381; People v. Bussey (2018) 24
Cal.App.5th 1056, 1061–1062.)4 In this case, by contrast, the
court’s instruction—supported by the lawyers’ arguments—
focused exclusively on the nontheft variant of the Vehicle Code
section 10851 offense.
Of course, as defendant also correctly points out, 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 on
Vehicle Code section 10851 in isolation, the jury thus could
theoretically have understood guilt to be proved if defendant
stole the vehicle by driving it away from where the owner had
parked it.
The trial court’s omission was, however, harmless beyond
a reasonable doubt. (Chapman v. California (1967) 386 U.S.
18, 24.) The evidence showed that defendant was apprehended
driving the vehicle six or seven days after it was stolen from its
owner, a time gap that indisputably qualifies as a “ ‘substantial
break’ ” between the theft and the driving. (Page, supra, 3
Cal.5th at p. 1188.) In the absence of any direct evidence tying
defendant to the theft—or indeed, any circumstantial evidence
beyond defendant’s later possession of the stolen vehicle—
there was nothing to show he also drove it while effectuating
the theft, and neither party so argued to the jury. Indeed, the
4
This court is currently considering the correct
harmlessness standard for instruction on alternative legal
theories when one is correct and the other is incorrect. (People
v. Aledamat, review granted July 5, 2018, S248105.
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Opinion of the Court by Kruger, J.
prosecutor expressly informed the jury it lacked sufficient
evidence to convict defendant of the theft. Given these
circumstances, we conclude that the trial court’s failure to
specify that unlawful driving must occur after the theft of the
car, and not during, did not contribute to the jury’s verdict. It
is clear beyond a reasonable doubt that a rational jury would
have rendered the same verdict had it received a complete
instruction. (See Neder v. United States (1999) 527 U.S. 1, 17;
People v. Mil (2012) 53 Cal.4th 400, 414.
IV.
Although the Court of Appeal in this case erred in holding
Proposition 47 inapplicable to violations of Vehicle Code
section 10851, it was correct to affirm defendant’s conviction on
that charge. Even considering the ameliorative changes
wrought by Proposition 47, the evidence at trial was sufficient
to sustain a felony conviction under Vehicle Code section
10851, and the trial court’s instructions on the offense were not
prejudicially erroneous.
The judgment of the Court of Appeal is affirmed.
KRUGER, J.
We Concur:
CANTIL-SAKAUYE, C. J.
CHIN, J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
GROBAN, J.
14
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Lara
Unpublished Opinion XXX NP opn. filed 7/19/17 – 4th Dist., Div. 2
Original Appeal
Original Proceeding
Review Granted
Rehearing Granted
Opinion No. S243975
Date Filed: April 11, 2019
Court: Superior
County: Riverside
Judge: Samuel Diaz, Jr.
Counsel:
Julie Sullwold and Neil Auwarter, under appointments by the Supreme Court, for Defendant and Appellant.
Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Peter Quon, Jr., Anthony
DaSilva, Michael Pulos, Stacy Tyler and Joshua Patashnik, Deputy Attorneys General, for Plaintiff and
Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Neil Auwarter
Appellate Defenders, Inc.
555 West Beech Street, Suite 300
San Diego, CA 92101
(619) 696-0282
Joshua Patashnik
Deputy Attorney General
600 West Broadway, Suite 1800
San Diego, CA 92101
(619) 738-9057
Opinion Information
| Date: | Docket Number: |
| Thu, 04/11/2019 | S243975 |
