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People v. Van Orden

California Court of Appeals, Fourth District, Second Division

March 23, 2017

THE PEOPLE, Plaintiff and Respondent,
CHARLES SAMUEL VAN ORDEN, Defendant and Appellant.

         APPEAL from the Superior Court of San Bernardino County No. FVI010754. Colin J. Bilash, Judge. Reversed with directions.

          Richard Power, under appointment by the Court of Appeal, for Defendant and Appellant.

          Kamala D. Harris, Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton, and Sabrina Y. Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.


          SLOUGH J.

         Like People v. Garza (2005) 35 Cal.4th 866 (Garza), this case “involves the interplay between two criminal law statutes: one a provision of the Penal Code, the other a provision of the Vehicle Code.” (Id. at p. 871.) In Garza, the court considered the interplay between Vehicle Code section 10851 (unlawful taking or driving a vehicle, hereafter section 10851) and Penal Code section 496 (receiving stolen property). This case involves the interplay between section 10851 and Penal Code section 490.2 (petty theft, hereafter section 490.2).

         Defendant Charles Van Orden appeals the court's order denying his petition under the Safe Neighborhoods and Schools Act (Proposition 47) to have his felony section 10851 conviction reduced to misdemeanor petty theft under section 490.2. The People argue the trial court was correct in concluding section 10851 offenses cannot qualify as petty theft offenses under any circumstances.

         Proposition 47, enacted by California voters in November 2014, reduced certain felony theft-related offenses to misdemeanors when the value of the stolen property does not exceed $950. The initiative also created a procedure to allow defendants who previously suffered felony convictions for offenses that are now classified as misdemeanors under Proposition 47 to petition the trial court to reduce their convictions to misdemeanors and to resentence them, if they are still serving time on their convictions. (Pen. Code, § 1170.18, subds. (a), (f).) Section 490.2, the provision at issue here, redefines the crime of petty theft as “obtaining any property by theft where the value of the... property taken does not exceed nine hundred fifty dollars ($950).” (§ 490.2, subd. (a).) Section 490.2 also directs any petty theft, so defined, shall be punished as a misdemeanor. The provision codifies the electorate's determination that low-value thefts should be punished as misdemeanors in all cases, removing the discretion prosecutors previously possessed to punish such crimes as felonies. (People v. Perkins (2016) 244 Cal.App.4th 129, 132-133.)

         The issue on appeal is whether Van Orden's conviction for violating section 10851, which criminalizes the act of unlawfully taking or driving a vehicle (Garza, supra, 35 Cal.4th at p. 871), would have been a misdemeanor petty theft under section 490.2 had Proposition 47 been in effect at the time of the offense. As the California Supreme Court has explained, “[u]nlawfully 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.” (Garza, at p. 871.) “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” (ibid.) and, it follows, must be punished under section 490.2 of petty theft. “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 (for convenience, we will refer to this as posttheft driving).” (Garza, at p. 871.) “Therefore, a conviction under section 10851(a) for posttheft driving is not a theft conviction” (ibid.) and, it follows, need not be punished under section 490.2 as petty theft.

         Applying the categories of section 10851 violations articulated in Garza, we conclude Proposition 47 applies to section 10851 theft convictions when the value of the vehicle is $950 or less, but not convictions based on driving, no matter the value. To determine whether a particular section 10851 conviction is for theft or driving, it is useful to distinguish the four kinds of section 10851 violations-pure theft, pure driving, driving theft, and post theft driving. Pure theft is theft accomplished without driving the vehicle, for example, conveying “by auto freight... the stolen automobile directly into a public warehouse.” (People v. Cuevas (1936) 18 Cal.App.2d 151, 153 (Cuevas).) Pure driving is an offense commonly referred to as joyriding, which involves an intent to only temporarily deprive the owner of possession. (Garza, supra, 35 Cal.4th at p. 876.) Driving theft is theft accomplished by driving the vehicle away. (Id. at p. 880.) Post theft driving is driving the vehicle after there has been a “substantial break” from the theft. (Ibid.; People v. Kehoe (1949) 33 Cal.2d 711 (Kehoe).) Only pure theft and driving theft are theft offenses redefined as petty theft under Proposition 47 when the stolen vehicle is of low value. The other two categories are not theft but driving offenses and are, for that reason, still chargeable as felonies under section 10851 and ineligible for Proposition 47 relief.

         The record in this case shows Van Orden stole a $700 car, drove it into a reservoir, and left it there. He is therefore guilty of a driving theft of a low-value car, which is a theft conviction and would have been petty theft had Proposition 47 been in effect at the time of his offense. We conclude Van Orden was eligible for relief under Penal Code section 1170.18 (hereafter section 1170.18) and remand to the trial court with directions to grant the petition.



         According to the probation report, on November 8, 1999, the victim reported Van Orden, her boyfriend of one month, had stolen her 1979 Toyota Celica after an argument. The victim accompanied the police to Van Orden's home, where he admitted he had taken the car and driven it into a nearby reservoir. Van Orden led the police to the reservoir where they found the car with all of its windows broken, tires flat, and rims bent.

         The San Bernardino County District Attorney charged Van Orden with felony violation of section 10851 (count 1) and misdemeanor vandalism in violation of Penal Code section 594, subdivision (a) (count 2). As to count 1, the complaint alleged “[o]n or about November 8, 1999, ” Van Orden “did unlawfully drive and take a certain vehicle, to wit, [a] 1979 Toyota Celica, ... then and there the personal property of [the victim] without the consent of and with intent, either permanently or temporarily, to deprive the said owner of title to and possession of said vehicle.”

         On November 19, 1999, the court accepted Van Orden's plea of nolo contendere to count 1. At the sentencing hearing on February 23, 2000, the court dismissed the vandalism count, sentenced Van Orden to 90 days in jail, and ordered him to pay the victim $700 in restitution, which is the amount the victim said she paid for the Celica two months before.

         On April 13, 2016, Van Orden filed a section 1170.18 petition asking the trial court to reduce his felony section 10851 conviction to a misdemeanor. The People responded Van Orden was not entitled to relief because section 10851 “is not covered” by Proposition 47. At the hearing on the petition, the court acknowledged Proposition 47's application to section 10851 was under review by the California Supreme Court, and stated, “Given the current state of the law, 1170.18-motion denied. Obviously, all these cases are subject to revisiting should the issue be resolved.”

         Van Orden timely appealed.



         Van Orden contends his section 10851 conviction qualifies for reduction to misdemeanor section 490.2 petty theft under Proposition 47. We agree.

         A. Theft Versus Driving Convictions Under Section 10851

         Section 10851, which bears the title, “Theft and unlawful driving or taking of a vehicle, ” provides in relevant part, “[a]ny person who drives or takes a vehicle not his or her own, without the consent of the owner thereof, and with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle, whether with or without intent to steal the vehicle... is guilty of a public offense.” (§ 10851, subd. (a).) Section 10851 violations are wobbler offenses, “[to] be punished by imprisonment in a county jail for not more than one year or pursuant ...

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