P v. Solis (2nd Dist., Div.3) Any VC 10851 Conviction is Ineligible for PC 1170.18 Relief

In 2012, M. Solis was arrested as a passenger in a car whose driver did not have the consent of the owner (note it wasn't necessarily a "stolen" car).  She pleaded guilty to a felony violation of VC 10851.  Effective becomes Proposition 47 in November 2014 and Solis petitions the trial court under PC 1170.18 to reduce her conviction to a misdemeanor.  The trial court denies the petition, ruling 10851 convictions are categorically ineligible for 1170.18 relief.

Solis appeals and this Second District panel affirms. 

Despite the otiose value of the opinion (the California Supreme Court's decision will be the last word), the opinion is interesting.  The opinion correctly identifies the issue; whether Solis' crime would necessarily fall under PC 490.2.  The path taken to get to the answer is a novel one.  

VC 10851 criminalizes the non-consensual taking or driving of a car with an intent to deprive the owner of possession for any period of time.  It also criminalizes being a party to the "stealing" of a car.  Clearly one can violate 10851 without committing a theft, as theft requires an intent to permanently deprive the owner of possession.  Taking a car for a one-hour joyride, fully intending to return the car, violates 10851.  But auto theft also necessarily falls under 10851, as an intent to permanently deprive the owner of possession necessarily includes an intent to deprive temporarily.  So a 10851 conviction may involve a theft, but needn't.  

How then to reconcile 10851 with PC 490.2, which states,

 [O]btaining 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.

When a 10851 is based on a car "theft" does it fall within 490.2?  It would appear to apply; "shall" is mandatory language so any act which could encompass more than one crime would necessarily have to be considered and punished under 490.2.  

The panel disagrees, for two reasons.  The first reason is that the panel believes that by keeping the preexisting language of PC 666, which refers to "auto theft under 10851", "petty theft", and "grand theft" as separate qualifying convictions, the voters expressed their view that 10851 convictions are distinct from "theft" convictions.  The second reason the panel gives for its decision is the "specific governs over the general" cannon.  

The panel reasoning is not specious, but it doesn't really satisfy.  The "surplusage" argument only works if the "auto theft under 10851" language in PC 666 is truly limited to those 10851 convictions involving an intent to permanently deprive.  I was unable to find a published opinion addressing this issue.  If the PC 666 language "auto theft under 10851" includes all 10851 convictions, then the panel's argument falls apart as including the 10851 language would not be meaningless under Solis' interpretation.  It would function to include within 666 those 10851 convictions not involving theft.

The second argument of 10851 being a more specific statute is weakened by the mandatory language in 490.2 requiring that all thefts of property worth not more than 950 dollars "shall" be considered and punished as petty theft.  This language leaves little wiggle room.  Interestingly, the panel doesn't really address the mandatory language in 490.2.  But the opinion is more thoughtful and scholarly than most Proposition 47 opinions.  

Eventually the California Supreme Court will give us their final answer.  But until that time, Ms. Solis will remain on felony probation.