People v. Lara

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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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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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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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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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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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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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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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