“Petty Theft Auto” just doesn’t have the same ring to it

Grand Theft Auto 6Enthusiasts of the “Grand Theft Auto” video game might think that “petty theft auto” sounds rather wimpy, but to a felon car thief seeking a sentence reduction under Proposition 47, “petty theft auto” sounds pretty good after the decision in People v. Ortiz, case no. H042062 (6th Dist., Jan. 8, 2016),

Prop 47, adopted by the voters in 2014, reduced certain drug and theft offenses to misdemeanors and allowed those previously sentenced for those crimes as felonies to petition for resentencing if the crime would have been a misdemeanor if Prop 47 had been in effect. In Ortiz, the statute violated by the defendant was Vehicle Code section 10851, subdivision (a), which reads in part:

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 her title to or possession of the vehicle, whether with or without intent to steal the vehicle, or any person who is a party or an accessory to or an accomplice in the driving or unauthorized taking or stealing, is guilty of a public offense[.]

Prop 47 enacted Penal Code section 490.2, which reads in part at subdivision (a):

Notwithstanding Section 487 or any other provision of law defining grand theft, obtaining 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[.]

The trial court denied the defendant’s resentencing petition because it held that, as a matter of law, Section 10851 did not meet Prop 47’s eligibility criteria, but in Ortiz, the appellate court reverses. It notes that Section 490.2 makes a misdemeanor the obtaining of “any property by theft.” Thus, even though Prop 47 did not list section 10851 by name or number, Section 490.2 “unambiguously includes conduct prohibited under Section 10851.”

It is worth noting that Ortiz departs from two decisions – one in the Fourth District and one in the Third District – which held that Section 490.2 did not apply because Section 10851 does not proscribe theft. But another Court of Appeal decision created a split of opinion within the Fourth District, coming out the same way as the Ortiz court. The issue may be teed up for Supreme Court review.

Perhaps you have been wondering what kind of car could have been worth less than $950 at the time the defendant stole it. Answer: a 22-year old Honda Civic. Even though its owners had paid just $1000 for it and sold it for $300 after recovering it, the evidence was insufficient to establish its value at the time of the theft. Nonetheless, this was not a hollow victory for the defendant. In reversing the trial court, the Court of Appeal ordered the resentencing petition dismissed without prejudice, which gives the defendant the opportunity to petition again if and when he can garner evidence that the value of the car was $950 or less when it was stolen.