PEOPLE v. PAGEAppellant’s Supplemental BriefCal.August 11, 2017fSUPREME COURT COPY COPY “FILED AUG 11 2017 Jorge ..uvarrete Clerk IN THE SUPREME COURT Deputy FOR THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, ) No. 8230793 ) Plaintiff and Respondent, ) Fourth District ) Court of Appeal V. No. E062760 TIMOTHY WAYNEPAGE, ) ) Defendant and Appellant. ) SUPPLEMENTAL BRIEF ON THE MERITS Appeal from the Superior Court of California San Bernardino County Case No. FV1I1201369 Honorable Lorenzo R. Balderrama and Michael A. Smith, Judges JEFFREY S. KROSS State Bar No. 142882 P.O. Box 2252 Sebastopol, CA 95473-2252 (707) 823-8665 kross142882@gmail.com Attorney for Appellant TIMOTHY WAYNE PAGE By appointmentof the Court of Appeal underthe Appellate Defenders,Inc. Independent Case System TABLE OF CONTENTS Page TABLE OF CONTENTSou... cccccccccccccccessseeesseeeneceeeeeeenennaesesteneeseeeeeeneeeesennaes 2 TABLE OF CASES AND AUTHORITIES.00..0..eeccceeeeeeceeseesereeeseneeeneeeees 3 INTRODUCTION .....ccecccccccccesccesseessesceeeenecneceacecesseeeseeseaaeeeseesseeseaeeersneessaees 4 ARGUMENT uuu .ccccecccccccccscssccessscecssssnceeecessscsseecnsaeeeeeeeeeesasesensesenaeeesessaaeesaas 5 Insofar As Vehicle Code Section 10851, Subdivision (a) Describes A Theft Offense, And Because The Voters Of California Would Have Understood It As Such, A Conviction For Vehicle Theft Charged Under Vehicle Code Section 10851, Subdivision (a) Is Eligible For Reduction To A Misdemeanor If The Value OfThe Vehicle Did Not Exceed $950. .....cccccccsscccesseesesseceeeseceeeeessecesseesseessaeesseeeenece 5 A. People v. Van Orden, formerly at (2017) 9 Cal.App.5th 1277, review granted June 14, 2017, S241574 (Van Orden)..........ee 5 B. People v. Romanowski (2017) 2 Cal.5th 903 (Romanowski)....,. 8 CONCLUSION ... occ cccccccccccscssscceessececesenseceecnsecessceesesaneaeaceececaeeesseeseneeeeeersnes 12 WORD COUNTCERTIFICATION........ccccececeeeeseeeeecceeeseeseeseeetennseeees 12 TABLE OF CASES AND AUTHORITIES Cases Pages In re Lance W. (1985) 37 Cal.3d 873 ou. ceeceesceeeesseeseeseetseetetenneenaees 9,10,11 People v. Garza (2005) 35 Cal.4th 866 0.0.0... ceccecesccsesserteeseecneeneees 5,6,10 People v. Gonzalez (2017) 2 Cal. 5th 858 0... .cceecceseeececeececseteeeeseeneeeneeeees 11 People v. Johnston (2016) 247 Cal.App.4th 252, rev. granted 7/13/2017, S23504 1 oo.eee ee ceeeeseeeeeeeeeesseeaeeseeorenseas 8 People v. Kehoe (1949) 33 Cal.2d 711 .occececceeccecesseecneeeeseessseneenseneennees 7 People v. Malamut (1971) 16 Cal.App.3d 237 .o....cccccceceseeeesseseeerreeeenees 7 People v. Rizo (2000) 22 Cal.4th 681 wo... ec ec eee ceceeeeeeeeeereeeeeeeerenenecneneens 8 People v. Romanowski (2017) 2 Cal.Sth 903 00... eeeseeeeesteeteees 8,9,10,11 People v. Sauceda (2016) 3 Cal.App.5th 635, rev. granted 11/30/2016, S237975 ooo. eccccecceceeeeeeceeeeseeeeeeeeseeeeeay 8 People v. Strong (1994) 30 Cal.App.4th 366 ..........cccccccesscceesesseeneeeeeneeenes 7 People v. Van Orden (2017) 9 Cal.App.5th 1277, rev. granted 6/14/2017, S241574 woecece eee ttereeneereeeeees 5,6,7,8 Statutes Penal Code § 4846 ooo... eeeccecceceesereeeeessceeneeeesseeesceeseeeseesesesensresesaeesseaaaesees 8,9 Penal Code 487 vieccccccccccccccsscsecssececeesseevessneeeeeseeseeeessenseeeeeessaeeeeecessaeaeeaaeees 8,9 Penal Code § 490.2 .....cceeccccecscceeseeceescceeeesceeesesaneeecesaneaseseaneonseeersneeones passim Penal Code § 1170.18 ooo... eeeeeeeecceseeceesessceeesseeeecesaeeeeessatsesseesessensnaeneeteas 7 Vehicle Code § 10851(a) oo... ecececeeceeseeesecceeeeceetesseeeeaterseessseeseneseaees passim California Rules of Court Rule 8.512(d)(2) ccccceesccssecscsssuccessecssssssssssecessvecssvecensessssssevssesssesesssseeessnessseeee 5 Rule 8.520(d) vecccsscesssssesvesssesecssssesssssesssssssssssssusessueesssnisessessveesssssesssseesavessen ml Rule 8.11 15(@)(1) vessesessvssssvevvsssesssssevevsssssvessssvsessstssssstessessuvsssssssesssssssesenesssves 5 IN THE SUPREME COURT FOR THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, ) No. 8230793 Plaintiff and Respondent, v TIMOTHY WAYNE PAGE, 3 Defendant and Appellant. ; On Appeal from the Superior Court of California Fourth District Court of Appeal No. E062760 San Bernardino County Case No. FV11201369 SUPPLEMENTAL BRIEF ON THE MERITS INTRODUCTION Pursuant to Rule 8.520(d), California Rules of Court', appellant Timothy Page submits this supplemental brief in order to discuss several cases in which opinions supporting his argument that Proposition 47 applies to vehicle theft convictions under Vehicle Code section 10851, subdivision (a) were published after he filed his opening and reply briefs on the merits. 1. Further references to Rules are to the California Rules of Court. 4 ARGUMENT Insofar As Vehicle Code Section 10851, Subdivision (a) Describes A Theft Offense, And Because The Voters Of California Would Have Understood It As Such, A Conviction For Vehicle Theft Charged Under Vehicle Code Section 10851, Subdivision (a) Is Eligible For Reduction To A MisdemeanorIf The Value Of The Vehicle Did Not Exceed $950. A. People v. Van Orden, formerly at (2017) 9 Cal.App.Sth 1277, review granted June 14, 2017, 8241574 (Van Orden). Vehicle Code section 10851, subdivision (a) [hereafter “section 10851(a)’”] provides, as relevant here, “Any 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 hertitle to or possession of the vehicle, whether with or without intent to steal the vehicle, ... is guilty of a public offense.” On page 13 of his opening brief, and page 8 of his reply brief on the merits, appellant highlighted this Court’s statement in People v. Garza (2005) 35 Cal.4th 866 (Garza), that “[iJf the [section 10851(a)] conviction is for the taking of the vehicle, with the intent to permanently deprive the ownerof possession, thenit is a theft conviction ....” (Ud. at p. 881, emphasisin original.) Garza also observedthat “[o]n 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 2. This Court granted review in Van Orden pursuant to Rule 8.512(d)(2) and deferred further action pending consideration and disposition of the same issue in this matter. Appellant discusses Van Orden pursuant to Rule 8.1115(e)(1), which provides in relevant part: “Pending review andfiling of the Supreme Court’s opinion, ..., a published opinion of a Court of Appeal in the matter has no binding or precedential effect, and may becited for potentially persuasive value only.” this as posttheft driving).” (Ud. at p. 871, emphasis in original.) In Van Orden, Division Two of the Fourth District Court of Appeal -- the same division of the same district that decided appellant’s case -- applied Garza’s “parsing of section 10851 theft and driving violations”to the interplay between Proposition 47 (specifically Penal Code section 490.27) and section 10851(a). (Van Orden, 9 Cal.App.5th at p. 1285.) Parsing section 10851(a), Van Orden identified four distinct varieties of offenses falling along a spectrum encompassedbythe statute: (1) “pure theft,” which occurs when a defendant unlawfully takes a vehicle, without actually driving it, with the intent to permanently deprive the owner of possession; (2) “driving theft,” defined as theft accomplished by driving the vehicle away from the owner’s possession; (3) “posttheft driving,”that is, driving that occurs or continuesafter the theft is complete; and (4) “pure driving, commonly knownas joyriding,” in which the person drives the vehicle with the intent only to temporarily deprive its owner of possession. (d., 9 Cal.App.Sth at pp. 1285-1286.) Van Orden concludedthefirst two categories -- pure theft and driving theft -- qualified as theft crimes, and therefore are eligible for reduction to a misdemeanor(assuming the vehicle’s value did not exceed $950), whereas the latter two categories -- posttheft driving and pure driving -- qualified as driving crimes, and therefore fell outside the purview of Proposition 47. (Ud., 9 Cal.App.5th at p. 1286.) Van Orden then applied the “substantial break”test, first announced 3. Except for the above referenced “section 1085 1(a),” further statutory references are to the Penal Code unless otherwise indicated. 6 in People v. Kehoe (1949) 33 Cal.2d 711, 715 and subsequently applied in People v. Malamut (1971) 16 Cal.App.3d 237, 242 and People v. Strong (1994) 30 Cal.App.4th 366, 375, to determine whether a section 10851(a) offense properly would be classified a driving theft or posttheft driving crime. (Van Orden, 9 Cal.App.5th at pp. 1286-1287.) Underthe “substantial break” test, a court examines the amountoftime,if any, between the taking of the vehicle and the subsequentdriving of the vehicle.* (bid.) Because section 490.2 “expanded the offense of petty theft by defining it as ‘obtaining any property by theft where the value ofthe... personal property taken does not exceed nine hundredfifty dollars ($950)’ (§ 490.2, subd.(a), italics added)” (Van Orden, 9 Cal.App.Sth at p. 1288), the court concluded that “after the passage of Proposition 47, an offender whoobtains a car valuedat less than $950 by theft must be charged with petty theft and may not be charged as a felon under any other criminal provision.” ([bid.) Therefore, because the prosecution would have been required to charge that theft offense as a misdemeanor had Proposition 47 been in effect at the time, the defendant wasentitled underthe petitioning process enacted in section 1170.18 to seek reduction of the offense to a 4. The sparse factual record in appellant’s case indicates that on June 8, 2012, appellant took and drove a Toyota Camry automobile without the consentofits owner(§ 1085 1(a)), then evaded a police officer by driving the car with wanton disregard for the safety of other persons and property (Veh. Code, § 2800.2, subd. (a)), and finally resisted an officer by meansof force and violence (§ 69). Applying the “substantial break” test to these facts, appellant’s offense would be characterized as a “driving theft” crime, and therefore eligible for reduction to a misdemeanorif the Camry’s value did not exceed $950. misdemeanor. (/d. at p. 1289.) After effectively dissecting and dismantling countervailing arguments propounded in People v. Johnston (2016) 247 Cal.App.4th 252, reviewgranted July 13, 2016, S235041, and People v. Sauceda (2016) 3 Cal.App.5th 635, review granted November 30, 2016, 8237975, (Van Orden, 9 Cal.App.Sth at pp. 1289-1294), Van Orden finally relied upon the voter’s evident intent in approving Proposition 47, citing this Court’s decision in People v. Rizo (2000) 22 Cal.4th 681, 685 [when the language eee of an initiative is ambiguous, courts may look to “‘other indicia ofthe voters’ intent’” to determine the initiative’s meaning].) (Van Orden, 9 Cal.App.5th at p. 1294.) The court thus concluded: No one disagrees Proposition 47 was intended to prohibit prosecutors from charging low-valuecarthefts as felony Penal Code section 487, subdivision (d)(1) violations. Interpreting Proposition 47 to exclude section 10851 creates an end run aroundthis prohibition. It allows prosecutors to simply choose to charge low-value car thieves as felons under section 10851 instead of as misdemeanants. Such an outcome contravenesthe voters’ clear intent to reduce prison spending and redirect the savings to community-based programs by lessening the punishmentfor low-value car thefts to misdemeanors. Our understanding of the interplay between section 10851 and section 490.2 advancesthat intent. (Van Orden, 9 Cal.App.5th at p. 1295.) B. People v. Romanowski (2017) 2 Cal.5th 903 (Romanowski). In Romanowski, filed four days after the Van Orden opinion,this Court similarly relied to a large extent on the voters’ presumed understandingofthe initiative’s intended purpose, and concluded Proposition 47 applied to theft of access card account information (§ 484e, subd. (d)). (Romanowski, 2 Cal.5th at pp. 907-910.) Romanowski was unequivocal: “What section 490.2 indicates is that after the passage of Proposition 47, ‘obtaining any property by theft’ constitutes petty theft if the stolen property is worth less than $ 950.” (Ud. at p. 908.) Romanowski continued: “[W]e know that the voters who approved Proposition 47 had their sights on definitions of grand theft other than the [three specified] categories in section 487{°], since section 490.2 refers to ‘[s]ection 487 or any other provision oflaw defining grand theft.” (§ 490.2, subd.(a), italics added.) For these other forms of grand theft too, Proposition 47 establishes that ‘obtaining any property by theft where the value of the money,labor, real or personal property taken does not exceed nine hundredfifty dollars ($950) shall be considered petty theft.’ (§ 490.2, subd. (a).)” (Ubid.) After observing that section 484e is one of those “other provisions,” the Court further observed: Section 484e also resides in part 1, title 13, chapter 5 of the Penal Code, whichistitled “Larceny.” In just about every wayavailable, the Legislature madeclear that theft of access card information is a theft crime. Nothing in the text of the initiative suggested that the voters were implicitly leavingthis form of theft out when they used the phrases “any other provision of law defining grand theft” and “obtaining any property by theft.” (§ 490.2, subd. (a).) We deny a phrase like “any other provision oflaw”its proper impact if we expect a penalstatute -- whether enacted by the Legislature or the electorate -- to further enumerate every provision of the Penal Code to whichit is relevant. And we generally presume that the electorate is aware of existing laws. Un re Lance W. (1985) 37 Cal.3d 873, 890 & fn. 10, .....) (Romanowski, 2 Cal.5th at pp. 908-909.) Proposition 47’s Legislative Analyst explained that underthen- 5. “[S]ection 487 set out three categories of theft that were charged as grand theft solely because of the property involved-- theft of guns, theft of cars, and theft of property from the victim’s person. (See § 487, subds. (c)-(d).)” (Romanowski, 2 Cal.5th at p. 908.) 9 current law,“‘theft of property worth $950 or less’ could be ‘charged as grand theft’ ‘if the crime involves the theft of certain property (such as cars).’ (Voter Information Guide, [Gen. Elec. (Nov. 4, 2014)] analysis of Prop. 47 by Legis. Analyst, p. 35.)” (Romanowski, 2 Cal.5th at p. 910, emphasis added.) Presuming, as we must, the existence of an informed electorate (In re Lance W., supra, 37 Cal.3d at p. 890 & fn. 10; Romanowski at p. 909), a voter examining the Vehicle Code for guidanceas to the potential scope of Proposition 47 would discover that section 10851(a) is included in Chapter 4 (“Theft and Injury of Vehicles”), which is contained in Division 4 of the Vehicle Code (“SPECIAL ANTITHEFT LAWS”). It therefore would be natural for an electorate “aware of existing laws” (Romanowskiat p. 909) to assume a low-value violation of section 1085 1(a) acewould be included within Proposition 47’s promise that “‘such crimes would no longer be charged as grand theft solely because ofthe type of property involved.’ ({Voter Information Guide, supra, analysis of Prop. 47 by Legis. Analyst, p. 35], italics added.)” (Romanowski at p. 910.)° Oneofthe stated purposes of Proposition 47 wasto “[rJequire misdemeanorsinstead offelonies for nonserious, nonviolent crimes like petty theft and drug possession.” (Voter Information Guide, supra, text of Prop. 47, § 3, p. 70.) As Romanowskistated, there can be “no reason to assumethat reasonable voters seeking to anticipate the consequences of enacting Proposition 47 would have concludedthat theft of access card 6. By the same token, an electorate “aware of existing laws” would be presumed to knowthat in Garza, this Court defined the taking of a vehicle with the intent to permanently deprive the ownerofhis or her property as a theft offense. (/d., 35 Cal.4th at p. 881.) 10 information worth less than $ 950 is a serious or violent crime exempt from Proposition 47’s reach. (See /n re Lance W., 37 Cal.3d at p. 890 & fn. 10 [looking to ‘the ballot summary and arguments’ as well as ‘the preamble to the initiative’ to discern an initiative’s intended purpose].)” (Romanowski, 2 Cal.5th at p. 909.) That rationale is no less compelling when applied to the non-violent theft of an inexpensive vehicle. “To the contrary: Proposition 47 directed that the text of the initiative ‘shall be broadly construed to accomplishits purposes’ and‘shall beliberally construed to effectuate its purposes.’ (Voter Information Guide, supra, text of Prop. 47, § § 15, 18, p. 74.)” (Ubid.; see also People v. Gonzalez (2017) 2 Cal.Sth 858, 870 [considering entering a bank to cash a stolen check for less than $950 shoplifting rather than burglary is consistent with the electorate’s stated reason for enacting Proposition 47, i.e., reducing “the number of nonviolent offenders in state prisons, thereby saving money and focusing prison on offenders considered more serious under the terms of the initiative”].) Including the theft of a vehicle worth less than $950 charged under section 10851(a) as a misdemeanor would best effectuate the electorate’s stated purpose in enacting Proposition 47. 11 CONCLUSION For the reasonsstated above, as well as those stated in his opening and reply briefs on the merits, a defendant convicted of felony taking a vehicle under section 10851(a) should be deemed eligible to have that conviction reduced to a misdemeanorpursuantto section 1170.18, assuming the value of the vehicle does not exceed $950. Dated: August 9, 2017 we ARM JEFF S. KROSS State 0. 142882 Attorney for Appellant TIMOTHY WAYNE PAGE WORD COUNT CERTIFICATION Pursuant to Rule 8.520(d)(2), California Rules of Court, I hereby certify, under penalty of perjury, that according to the word-count function of my computer’s word processing program, this Supplemental Brief on the Merits contains 2,325 words. Executed this 9th day of August 2017 at Sebastopol, California. \ AMe TERN: KROSS 12 PROOF OF SERVICE BY MAIL AND E-SERVICE I declare under penalty of perjury that I am a citizen of the United States, over the age of eighteen years, an active memberofthe State Bar of California, and not a party to the within action. My business addressis P.O. Box 2252, Sebastopol, California 95473-2252. On this date I served the attached SUPPLEMENTAL BRIEF ON THE MERITSbyplacing true copies thereof in a sealed envelope which I deposited in the United States mail at Sebastopol, California with the postage thereon fully prepaid, addressed as follows: San Bernardino County Superior Court 247 W. Third Street San Bernardino, CA 92415 Office of the District Attorney Appellate Services Division 4|2 W. Hospitality Lane, Ist Floor San Bernardino, CA 92415-0042 Timothy Wayne Page AL7644 Sierra Conservation Center 5150 O’Byrnes Ferry Road Jamestown, CA 95327 I further declare that I electronically served from my electronic service address ofjeffskross@earthlink.net the same Supplemental Brief on the Merits on this date to the following entities: Christen Somerville, Deputy Attorney General at Christen.Somerville@doj.ca.gov, Office of the Attorney General at SDAG.Docketing@doj.ca.gov; and Appellate Defenders, Inc. at eservice-court@adi-sandiego.com. Executed this 10th day of August 2017 at Sebastopol, California. ne REY S. KROSS
