Opinion
F076033
02-21-2020
THE PEOPLE, Plaintiff and Respondent, v. ARNOLD JAVIER SERRANO, Defendant and Appellant.
Peter J. Boldin and Siena M. Kautz, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and John W. Powell, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BF165396A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Brian M. McNamara, Judge. Peter J. Boldin and Siena M. Kautz, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and John W. Powell, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Defendant Arnold Serrano found a car with keys in it, parked at the owner's home, and unlawfully took or drove it. Based on this, convictions on related charges, and a number of sentence enhancements, he received an aggregate prison term of seven years.
He argues now that (1) the unlawful taking or driving conviction must be reduced to a misdemeanor because there was no evidence of the value of the car and there were no jury instructions on the value of the car; (2) the conviction on one of the related charges must be reversed because the offense was a lesser offense necessarily included in another of which he was convicted; (3) portions of the sentence must be stayed under Penal Code section 654 ; and (4) certain sentence enhancements are now unauthorized because of a change in the law.
Subsequent statutory references are to this code except as stated.
The People concede argument (1). We accept the concession. We also agree with argument (2), but reject argument (3). We need not address argument (4) because, in light of our holding, the enhancements at issue are not applicable even under the old law, as the remaining convictions are all misdemeanors. The judgment is affirmed in part and reversed in part, and the matter is remanded to the trial court for resentencing.
FACTS AND PROCEDURAL HISTORY
Serrano found the keys in a car in an apartment building parking lot in Huntington Beach. He drove the car away, but was apprehended in it five days later in Bakersfield, and confessed to the officer who arrested him. While in the police car, he persuaded the officer to roll down his window, escaped, and was soon apprehended again.
He was convicted of one felony, unlawfully taking or driving a vehicle (Veh. Code, § 10851, subd. (a)), and three misdemeanors: driving with a suspended license (Veh. Code, § 12500, subd. (a)), misdemeanor escape (§ 836.6, subd. (b)), and misdemeanor resisting a peace officer (§ 148, subd. (a)). An allegation of a prior strike conviction was found true (§§ 667, subd. (c)-(j), 1170.12, subd. (a)-(e)), as were two allegations of prior felonies with prison terms (§ 667.5, subd. (b)).
The court imposed a prison sentence of seven years, calculated as follows: the upper term of three years for the Vehicle Code section 10851 violation, doubled to six years for the prior strike, plus one year for one prior prison term enhancement. The other prior prison term enhancement was stayed. Concurrent terms of 180 days each were imposed for each of the misdemeanor convictions.
DISCUSSION
I. $950 Minimum Value for Felony Taking or Driving
In 2014, Proposition 47, the Safe Neighborhoods and Schools Act, reduced certain drug- and theft-related offenses to misdemeanors. (People v. Page (2017) 3 Cal.5th 1175, 1179-1180.) One of the new provisions was section 490.2, which provides that "obtaining any property by theft" is petty theft punishable as a misdemeanor if the value of the property taken is $950 or less. This law was in effect when Serrano took the car in this case. At the time of trial, however, our Supreme Court had not yet held that section 490.2 applies to Vehicle Code section 10851, and the People did not present any evidence of the value of the car.
That holding was announced in Page, a few months after Serrano's sentencing. Serrano now argues that the conviction must be reduced to a misdemeanor because no evidence of the value of the car was presented at trial. There should be no retrial, Serrano contends, because without any showing of value, the prosecution presented insufficient evidence to support the felony conviction it obtained. The People concede the issue, and do not ask for the opportunity for a retrial. We accept the concession.
As we will explain, a felony conviction under Vehicle Code section 10851, in the wake of Proposition 47 and Page, can either require or not require proof of value over $950, depending on whether the form of the offense amounts to theft (because the perpetrator intended to deprive the owner of possession permanently) or not (because the perpetrator intended to deprive the owner of possession only temporarily). In cases where the jury instructions for Vehicle Code section 10851 have not caught up to the law, and fail to distinguish between the intent to deprive permanently and the intent to deprive temporarily, it often is impossible to tell what the jury found; and in those cases, the appropriate disposition can be to reduce the conviction to a misdemeanor but allow the People the option of retrying the matter as a felony with suitable jury instructions. But in this case, the manner in which the jurors were instructed, together with the verdict forms they returned, show that they found Serrano committed the theft form of the Vehicle Code section 10851 violation. This means the offense must be reduced to a misdemeanor without a retrial: Given the jury's clear finding, the evidence was sufficient only to support a misdemeanor conviction.
Vehicle Code section 10851 proscribes "driv[ing] or tak[ing] a vehicle not [one's] 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." In Page, the high court observed that taking a vehicle without consent and with intent to deprive the owner of possession permanently is theft. For this, the "theft form" of the offense, section 490.2 requires proof of value over $950 if the crime is to be punished as a felony. But other forms of the offense—taking or driving a vehicle without consent but also without intent to deprive the owner of possession permanently—can be punished as felonies without proof of value. For example, posttheft driving, taking place after the theft is complete, or taking or driving with the intent to deprive the owner of possession but only temporarily, is a felony regardless of the value of the vehicle. (Page, supra, 3 Cal.5th at pp. 1182-1183.)
Because of the peculiar nature of this result, Page created a thorny problem. If the taking or driving of a car includes three elements—taking or driving, lack of consent, intent to deprive owner of possession permanently—it is a misdemeanor unless a fourth element, value above $950, is also proved. But if only the first two of these elements are present, then the offense is a felony regardless of the value of the car. Could the prosecution ensure a felony conviction of section 10851 by simply not alleging an intent to deprive the owner of possession permanently? If the jury instructions, using the words of the statute, refer to an "intent either to permanently or temporarily deprive the owner" of possession, and do not require a finding of value, does a guilty verdict convict the defendant of a felony or a misdemeanor? Our Supreme Court expressly declined to resolve this problem in Page. (Page, supra, 3 Cal.5th at p. 1188, fn. 5.)
One solution would be to require the jury to specify. The jury instructions and verdict forms could be worded to require the jury unanimously to find an intent to permanently deprive (misdemeanor unless value above $950 proved), an intent to deprive only temporarily (felony regardless of value), or neither (not guilty). The results would then be clear, though still counterintuitive.
Here, the jury instructions did not explicitly require the jury to make any distinction between the intent to deprive permanently and the intent to deprive temporarily. In spite of this, through both the jury instructions and closing argument, the prosecution effectively made an election of the theft form of the offense.
This came about because, in addition to the Vehicle Code section 10851 violation, Serrano also was charged with receiving stolen property (§ 496d). The jury instructions and the prosecutor both told the jurors, correctly, that they could not convict Serrano of both theft of the car and receiving the stolen car. They would have to decide first whether he had stolen the car; and if he had, they should find him guilty on count 1, the Vehicle Code section 10851 violation, and return the verdict form for count 2, receiving stolen property, unsigned. If they found Serrano had merely driven the car and was not the one who stole it, then they should find him guilty of a violation of Vehicle Code section 10851, but should also return a verdict on the receiving stolen property charge, for if the violation of Vehicle Code section 10851 was not a theft, then Serrano could also be guilty of receiving a car stolen by another.
The jury found Serrano guilty of violating Vehicle Code section 10851, and returned the verdict form for receiving stolen property unsigned. Since they had been told to do this only if they found Serrano had stolen the car, it follows that they found him guilty of the theft form of the offense—which, without proof of value above $950, is a misdemeanor.
This outcome flows from the prosecution's decision to file the alternative charge of receiving stolen property, and to have the jury instructed to signal its decision on whether it was finding a theft or not by signing or not signing the jury form for receiving stolen property. It is because of these circumstances that we are able to determine without any question that the jury found Serrano guilty of the theft form of the Vehicle Code section 10851 violation with no proof of value above $950—necessarily a misdemeanor under Page.
For these reasons, we agree with the parties that the jury found Serrano guilty of a misdemeanor violation of section 10851 and we will reduce his conviction accordingly. II. Lesser Included Offense
Serrano asserts that resisting a peace officer (§ 148, subd. (a)(1)) is a lesser offense necessarily included in escape from a peace officer (§ 836.6, subd. (b)), so his conviction of the former must be vacated. He is correct.
California courts have employed two tests, the elements test and the accusatory pleading test, to identify necessarily included offenses. "[A] lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser." (People v. Birks (1998) 19 Cal.4th 108, 117.) In People v. Reed (2006) 38 Cal.4th 1224, 1227-1230, however, the Supreme Court held that only the elements test may be used in determining whether one offense is necessarily included in another for purposes of applying the rule against multiple convictions on greater and lesser included offenses.
Section 148 provides:
"Every person who willfully resists, delays, or obstructs any public officer, peace officer, or an emergency medical technician, as defined in Division 2.5 (commencing with Section 1797) of the Health and Safety Code, in the discharge or attempt to discharge any duty of his or her office or employment, when no other punishment is prescribed, shall be punished by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment." (§ 148, subd. (a)(1).)
It has been held that the prosecution also must prove that the defendant knew or reasonably should have known that the other person was an officer engaged in his or her official duties. (People v. Lopez (1986) 188 Cal.App.3d 592, 600, fn. 3.)
Section 836.6 provides:
"It is unlawful for any person who has been lawfully arrested by any peace officer and who knows, or by the exercise of reasonable care should have known, that he or she has been so arrested, to thereafter escape or attempt to escape from that peace officer." (§ 836.6, subd. (b).)
We have been unable to conceive of a way to violate section 836.6, subdivision (b), that would not at the same time violate section 148, subdivision (a)(1). A person who is lawfully arrested by a peace officer, who knows or reasonably should know that this is what has happened, and who subsequently escapes from the same peace officer, is at the same time also necessarily resisting the officer in the discharge of his or her duty, and knows or should reasonably know that he or she is doing this.
The People maintain that it is possible to violate section 836.6, subdivision (b), by escaping at a time when the officer is no longer discharging any official duty, and in that case, the escape would not violate section 148, subdivision (a)(1). But this does not appear to us to be possible. If the arresting officer was still lawfully holding the defendant at the time of the escape, then the officer was still discharging an official duty, the defendant would know or reasonably should know this, and the escape would thus be a violation of section 148, subdivision (a)(1).
In all other situations, the defendant's action would not be a violation of section 836.6, subdivision (b). The escape must be from "that peace officer," i.e., the officer who carried out the arrest. If that officer has left or gone off duty, and the defendant is being held by a different officer at the time of the escape, the escape would not be from "that peace officer," and would have to be some offense other than a violation of section 836.6, subdivision (b). If the arresting officer was still holding the defendant, but unlawfully, it would seem that the defendant would be under no obligation to stay, so his or her departure would not be an "escape" within the meaning of the law. If no one was holding the defendant when the defendant left, we do not see how the leaving could be classified as an escape under any definition.
The People also point out that a violation of section 148, subdivision (a)(1), does not require an arrest to have taken place. This is irrelevant. Serrano argues that the section 148, subdivision (a)(1) violation is the lesser offense, not the greater. The greater offense needs to include the elements of the lesser, not vice versa.
We conclude for these reasons that the conviction of the section 148, subdivision (a)(1) violation, the lesser offense, must be reversed. III. Section 654
Serrano argues that the sentence for driving with a suspended license should be stayed under section 654, because that conviction is based on the same conduct as the conviction of taking or driving a vehicle. We disagree.
Section 654 provides that a defendant cannot receive multiple punishments for a single act, or for a course of conduct unified by a single criminal objective, even though that act or course of conduct is punishable in different ways by different provisions of law. (People v. Bauer (1969) 1 Cal.3d 368, 376; In re Ward (1966) 64 Cal.2d 672, 675- 676; Neal v. State of California (1960) 55 Cal.2d 11, 19, overruled on other grounds by People v. Correa (2012) 54 Cal.4th 331, 344.)
The trial court's implicit finding that the two punishments were supported by multiple acts with more than one criminal objective was supported by substantial evidence. Serrano took the car, violating Vehicle Code section 10851, at the beginning of the episode in Huntington Beach. He was still in possession of it, and driving it with a suspended license, days later in Bakersfield. The court could reasonably find taking it was one act, with the objective of bringing it into his possession on that first day, and driving it days later with a suspended license was a second act with a separate objective of going wherever he was headed when he got pulled over. IV. Prior Conviction Enhancements
Serrano received two one-year sentence enhancements under section 667.5, subdivision (b), for prior convictions with prison terms. Senate Bill No. 136 (2019-2020 Reg. Sess.), enacted October 8, 2019, amended Penal Code section 667.5, subdivision (b), to limit the prior offenses to which it applies. Under the law as amended, the prior prison term must be for "a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code." (Stats. 2019, Ch. 590, § 1.)
The parties agree that, under In re Estrada (1965) 63 Cal.2d 740, the new law applies retroactively to this case as a statute reducing punishment. They further agree that Serrano's prior convictions are not among those for which the enhancement can now be imposed.
We need not comment further on this point, since all the remaining convictions in this case are for misdemeanors, and the section 667.5, subdivision (b) enhancement has never applied to misdemeanors and will be irrelevant on remand. The same is true of the enhancement for the prior strike.
DISPOSITION
The conviction on count 1, unlawfully taking or driving a vehicle in violation of Vehicle Code section 10851, is reduced to a misdemeanor. The conviction on count 4, resisting a peace officer in violation of section 148, subdivision (a)(1), is reversed. The sentence is vacated. The judgment is otherwise affirmed, and the matter is remanded to the trial court for resentencing.
/s/_________
SMITH, J. WE CONCUR: /s/_________
FRANSON, Acting P.J. /s/_________
PEÑA, J.