People v. Morales

• Decision Date: 28 March 2019
• Docket Number: A152525
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Adrian Antonio MORALES, Defendant and Appellant.

33 Cal.App.5th 800

245 Cal.Rptr.3d 352

The PEOPLE of the State of California, Plaintiff and Respondent,

v.Adrian Antonio MORALES, Defendant and Appellant.

A152525

Court of Appeal, First District, Division 4, California.

Filed March 28, 2019

Steven S. Lubliner, Petaluma, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Catherine A. Rivlin, Supervising Deputy Attorney General, Bruce M. Slavin, Deputy Attorney General for Plaintiff and Respondent.

BROWN, J.

Found by the Napa County Sheriff’s Department in unauthorized possession of a white van, defendant Adrian Morales (Morales) was charged with several offenses, including unlawful driving or taking of a vehicle ( Veh. Code, § 10851 ). In addition, the People alleged that Morales suffered three prior convictions in Nevada for robbery and conspiracy to commit robbery. At trial, a jury found Morales guilty on all counts. In a separate proceeding, the trial court determined that two of the three prior strike allegations against Morales were true. Morales was sentenced to 32 months in state prison.

Morales appeals, arguing on various grounds that his Vehicle Code¹ section 10851 conviction merited only misdemeanor punishment. In the alternative, Morales contends that the trial court violated his due process rights by failing to instruct the jury on a purported defense. Finally, Morales contends that the trial court reviewed an ambiguous record of his Nevada convictions in order to find true the prior strike allegations against him, thus violating the Sixth Amendment to the United States Constitution. We agree with this final argument, remand on that basis, and otherwise affirm.

BACKGROUND

On May 5, 2017, a woman was inspecting a piece of property on which her family was in escrow. She saw a large white van backed up to the garage door, which she found odd. A man (later identified as defendant, Adrian Morales) got out of the van and claimed to be there because of his interest in buying the property. When the woman took photos of the van and license plate, defendant became agitated and drove away. The woman called 911.

Napa County Sheriff’s Deputy David Quigley was dispatched to investigate the call of suspicious activity involving the white van. Quigley spotted the van, and someone in its driver’s seat, in a parking lot near the property where the 911 caller had originally seen it; Morales got out as Quigley approached. Quigley found drug paraphernalia on Morales, who said that a man named Shawn gave him the van to use because Morales was homeless. Morales was to return the van to Shawn in a few days. Morales was arrested and charged by information with felony unlawful taking or driving of a vehicle ( § 10851, subd. (a) ), and other counts not relevant to this appeal. The information also alleged three prior felony convictions in Nevada for robbery and conspiracy to commit robbery.

At trial, employees of the company that owned the van, PACE Solano, testified that Morales did not work for PACE Solano and that neither defendant nor anyone else was authorized to drive the van that day. Because the van was not used frequently, PACE Solano was not even aware its van was missing until notified by law enforcement. No evidence established exactly when the van was stolen from PACE Solano, or by whom. When PACE Solano retook possession of the van, some of its seats were missing and its windows had been spray-painted black.

Consistent with the prosecution’s theory and the evidence at trial, the verdict form referenced only unlawful driving of the vehicle, not unlawful taking. In closing argument, Morales’s counsel argued that Morales was not guilty of unlawfully driving a vehicle under section 10851, because Morales lacked the intent to deprive the owner of possession of that vehicle. The jury convicted Morales of all charges.

After Morales waived his right to a jury trial on his prior convictions, the trial court held a bench trial on the prior strike allegations, finding two of the three allegations to be true. The trial court sentenced Morales to 32 months in state prison: a 16-month sentence for his unlawful driving conviction, doubled to 32 months on the basis of one prior strike.

This appeal followed.

DISCUSSION

Morales makes several arguments for reducing his section 10851 conviction to a misdemeanor or, in the alternative, for granting him a new trial on that count. First, Morales argues that the Supreme Court’s decision in People v. Page (2017) 3 Cal.5th 1175, 225 Cal.Rptr.3d 786, 406 P.3d 319 ( Page ), when properly understood, mandates only misdemeanor punishment for any violation of section 10851. Second, Morales contends that absurd consequences result from punishing the theft of a vehicle under section 10851 less harshly than the post-theft driving of a vehicle under the same section. Third, Morales alleges that such differential punishment violates the equal protection clauses of the United States and California Constitutions. Fourth, on the theory that Morales could have been convicted on the basis of aiding and abetting the initial taking of the vehicle, Morales argues that the trial court denied him due process of law by purportedly failing to instruct the jury on the respective elements of "Theft by Larceny" and "Aiding and Abetting." We reject all of these contentions.

We do, however, agree with Morales’s fifth and final argument and thus hold that the true findings on the prior strike allegations should be reversed under People v. Gallardo (2017) 4 Cal.5th 120, 226 Cal.Rptr.3d 379, 407 P.3d 55. Accordingly, we remand on that basis alone.

I. Page Does Not Preclude Felony Punishment for Unlawful Driving of a Vehicle in Violation of Section 10851.

Morales cites Page , characterizing as its "core holding" the proposition "that if conduct underlying a section 10851 conviction constitutes theft, the conviction is potentially a misdemeanor under Proposition 47." From there, Morales then argues that any violation of section 10851 constitutes theft. Morales thus reasons that the "core holding" of Page precludes felony punishment for his conviction under section 10851, notwithstanding the fact that he was convicted of unlawfully driving—not taking—a vehicle.

Section 10851, subdivision (a), provides for the punishment of "[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." ( Veh. Code, § 10851, subd. (a).) Thus, assuming that a defendant’s conduct concerns "a vehicle not his own," and occurs "without the consent of the owner thereof," section 10851, subdivision (a) may be violated in four different ways: (1) driving a vehicle with the intent to permanently deprive the owner; (2) driving a vehicle with the intent to temporarily deprive the owner; (3) taking a vehicle with the intent to permanently deprive the owner; and (4) taking a vehicle with the intent to temporarily deprive its owner. (Ibid. )

Page addressed whether defendants convicted of violating section 10851 are categorically ineligible for resentencing under the 2014 ballot initiative, Proposition 47. As the Page court explained, "Proposition 47 (the ‘Safe Neighborhoods and Schools Act’) reduced the punishment for certain theft- and drug-related offenses, making them punishable as misdemeanors rather than felonies. To that end, Proposition 47 amended or added several statutory provisions, including new Penal Code section 490.2, which provides that ‘obtaining any property by theft’ is petty theft and is to be punished as a misdemeanor if the value of the property taken is $950 or less." ( Page , supra , 3 Cal.5th at p. 1179, 225 Cal.Rptr.3d 786, 406 P.3d 319.)

In concluding that defendants convicted of violating section 10851 are not categorically ineligible for resentencing under Proposition 47, the Page court drew heavily from a previous decision, People v. Garza (2005) 35 Cal.4th 866, 28 Cal.Rptr.3d 335, 111 P.3d 310 ( Garza ), in which the Supreme Court "recognized the distinction between the theft and non theft forms of the Vehicle Code section 10581 offense." ( Page , supra , 3 Cal.5th at p. 1183, 225 Cal.Rptr.3d 786, 406 P.3d 319.) Because theft "requires a taking with intent ... to permanently deprive the owner of its possession" ( id. at p. 1182, 225 Cal.Rptr.3d 786, 406 P.3d 319 ), and "[b]y its terms, Proposition 47’s ... petty theft provision" ( id. at p. 1183, 225 Cal.Rptr.3d 786, 406 P.3d 319 ) covers only offenses where property is "obtained by theft" ( ibid. ), the Page court concluded that the language of Penal Code section 490.2 covers "the theft form of the Vehicle Code section 10851 offense [taking a vehicle with the intent to permanently deprive its owner of possession]" ( Page, at p. 1183, 225 Cal.Rptr.3d 786, 406 P.3d 319 ). In so ruling, Page followed Garza ’s distinction between the theft and non-theft forms of violating section 10851—i.e., between taking the vehicle with the intent to permanently deprive the owner of possession and driving the vehicle where the driving occurs or continues after the theft is complete. ( Page, at p. 1183, 225 Cal.Rptr.3d 786, 406 P.3d 319, citing Garza , 35 Cal.4th at p. 871, 28 Cal.Rptr.3d 335, 111 P.3d 310.)

Attempting to persuade us that Page may be turned on its head and read as a holding that all violations of section 10851 must be categorically designated as misdemeanors under Proposition 47, Morales contends that the distinction in Garza and Page between theft and non-theft forms of section 10851 violation is dicta and urges this court to reject it. Morales misreads Page . In support of this assertion, Morales points to Penal Code section 484, defining theft. On the grounds that Penal Code section 484 employs the term ...