State high court tweaks Proposition 47

The state Supreme Court on Thursday upheld retroactive reductions for non-violent crimes and specified types of felony theft and non-theft offenses that are eligible to be retroactively downgraded to misdemeanors.

Caleb Mason of Brown, White & Osborn LLP, who specializes in criminal law, said the decision effectively means a person convicted of a theft is eligible to have their felony downgraded to a misdemeanor. However, he said, someone convicted of being in possession of a stolen item but not found to have stolen it is not eligible for a downgrade.

The opinion authored by Justice Leondra R. Kruger centered on a Proposition 47 appeal by Henry Arsenio Lara II, convicted in 2015 of operating a stolen car in 2013. People v. Lara, 2019 DJDAR 3063 (Cal. April 11, 2019).

Mason, a former federal prosecutor not involved in the case, noted the decision effectively leaves people like Lara "out in the cold."

When it became effective in 2014, Proposition 47 converted many nonviolent offenses from felonies to misdemeanors. Under this change, theft can be treated as a misdemeanor if the value of the stolen items does not exceed $950.

The Supreme Court broadly held reduction provisions apply to all felons not yet sentenced prior to the proposition taking effect.

Kruger wrote that while an appellate court "erred in holding Proposition 47 inapplicable to violations of Vehicle Code section 10851, it was correct to affirm defendant's conviction on that charge." This was based on the fact that a jury in Lara's original criminal case did not assess the value of the car he was operating and therefore could not determine whether it cost less than $950.

Chief Justice Tani G. Cantil-Sakauye was among the majority of justices who concurred with Kruger.

The Vehicle Code Section 10851 nontheft variant statute is meant to cover the crime of a person operating a car that is not theirs but without the intent to permanently deprive the owner of their property, according to Mason.

"We ask: What are the elements of this crime? Do they necessarily include theft conduct? And for 10851, because again, it's a weird crime, they don't." Mason said.

Lara argued in his appeal that since the jury was never instructed to find whether the value of the stolen car he was driving exceeded $950, his felony conviction must be reduced to a misdemeanor.

In an apparent loophole, the opinion laid out that while the appellate court was wrong that Proposition 47 had no application in the case, Lara would remain a felon.

"Rejecting the argument, the Court of Appeal affirmed defendant's felony conviction and sentence," Kruger wrote. "The majority concluded that Proposition 47 has no application to a violation of Vehicle Code section 10851." She noted 4th District Court of Appeal Justice Marsha G. Slough, in a separate concurring opinion, concluded 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."

Mason said the issue could easily be subject to a legislative fix. "It would be very easy, if the Legislature thinks, 'Well golly, this isn't fair. A mere 10851 joyrider should have the same benefit as the thief," adding it was not uncommon for state legislators to amend propositions to be more inclusive and cover small technicalities such as this one.

He added the Supreme Court was essentially telling the Legislature, "If you make a general pronouncement that you want to reduce sentences, that is going to apply retroactively," so presumably Lara could apply for reduction again if a simple legislative fix were to occur.